AN APOLOGY FOR SUNDRY PROCEED by jurisdiction Ecclesiastical, of late times by some challenged, and also diversly by them impugned. By which Apology (in their several due places) all the Reasons and Allegations set down as well in a Treatise, as in certain Notes (that go from hand to hand) both against proceeding ex Officio, and against Oaths ministered to parties in causes criminal; are also examined and answered: Upon that occasion lately reviewed, and much enlarged above the first private project, and now published, being divided into three parts: the first part whereof chiefly showeth what matters be incident to Ecclesiastical cognisance; and so allowed by Statutes and Common law: the second treateth (for the most part) of the two ways of proceeding in causes Criminal, viz. by way of Accusation, & ex officio judicis: the third concerneth Oaths in general, but more specially the lawfulness of such as be ministered touching supposed offences, either of themselves that swear, or of their brethren: Respectivelie submitted to the grave judgements of the reverend judges and other Sages of the Common law: of judicious Professors of the Civil law: and of the right reucrend Prelates and other grounded Divines in this Realm. Whereunto (for the learneds sake, and for similitude of Argument and judgement) I have presumed to adjoin that right excellent and sound determination (concerning Oaths) which was made by M. LANCELOT ANDROWES Doctor in Divinity, in the common Divinity School of the University of Cambridge in julie, An. 1591. Lex, justitiae; justitia, Reipub. basis. Imprinted at London by the Deputies of CHRISTOPHER BARKER, Printer to the Queen's most excellent Majesty. THE GENERAL Preface, containing the Occasion, and general distribution of this Treatise following, before it was meant to make it public. THE endeavours of such disturbers as have been the chiefest stays of a further propagation of the Gospel, and the only stains of her majesties happy reformation; have rested most, in advancing a new found discipline, & in discrediting the present government Ecclesiastical, by their speeches and writings. The later whereof they have gone about; as well by impugning the callings and form of government Ecclesiastical, (as if they were contrary to God's word) as also by defacing the persons of the Governors, with unchristian gibes, contumelies, and other indignities. But these succeeding not to their wish, nor sorting to that effect they purposed; sundry of them have entered into, & pursued a more politic course. for by themselves & others (more simple) excited cunningly by them, they challenge divers received proceed in Courts Ecclesiastical, not to be justifiable by law: pretending now their especial grief to rest herein; for that they are dealt with and oppressed contrary to law, even as if they did carry a principal and zealous care to have all her majesties laws duly observed. By whose frequent clamours, some very grave, wise and learned (no way affected to their other fancies) either not being well informed of proceed Ecclesiastical, or not weighing (for want of leisure) certain points seeming to be doubtfully reported in the books of Common law, so thoroughly as their great learning therein doth afford: in a kind of commiseration (for so I interpret it) towards some of those who seem distressed, and to be otherwise well meaning men; have lately called into question divers proceed Ecclesiastical, both for matter, and for circumstance or manner; that they are contrary to the laws of this Realm. Yet all of them do not jump in the self same opinions hereafter touched. For they are severally holden by several men; the most whereof, are stood in by men of meanest place and reckoning in that study; and such as are known to be overmuch addicted to factious innovations. But all the challenges whatsoever (for contrariety unto the laws of the realm only, so far forth as they are hitherto comen to knowledge) may fitly be reduced into this order & sum. They tend to the challenging of proceed Ecclesiastical, done either by those who proceed by her majesties immediate Commission, who are either judges delegates (dealing in matters only betwixt party and party brought before them by appellation) or Commissioners in causes Ecclesiastical (serving especially for punishing of crimes & offences) or else such as be executed by those, who deal in ordinary jurisdiction. The exceptions that touch the very matter and object of Ecclesiastical jurisdiction, do in very deed by necessary consequence tend, either to the whole taking away of the Ordinary jurisdiction (as where it is affirmed, that no Canon, constitution, nor ordinance provincial whatsoever, may now be put in ure, without her majesties express assent first had to execute the same:) or else do reach to the taking of it away but in part. Those opinions that tend to the abridging of it but in some part; do go about it partly by way of excluding Ecclesiastical judges, from the handling of certain matters; (as by holding, that none Ordinary may cite any whomsoever, but in causes Testamentary and Matrimonial: and that no Lay man ought to be cited or summoned to appear before any judge Ecclesiastical, to take an oath in any other cause, then Testamentary or Matrimonial:) And partly by deriving them from the cognisance Ecclesiastical unto other Courts: (as that the judgement of heresy now lieth rather in the Common law, then in the law Ecclesiastical:) and some other of them (being defended by the same men that hold the next precedent opinion) do tend both to the excluding of Courts Ecclesiastical, and to the diverting of such causes another way, as that nothing now can be adjudged heresy, but according to the statute, 1. Eliz. cap. 1. As for the exceptions (pretended to be taken from the laws of the Realm) against the circumstances, or manner of proceeding in courts Ecclesiastical, they do either concern such points as go afore, and are preparatories to the suit (& such is this: that, the Queen's Majesty cannot give, nor any man receive authority, to use any other process in matters Ecclesiastical, then by citation:) Or do touch the manner of entering into the suit, as that an Ecclesiastical Court may not proceed without accusation or presentment, and that Lay men may not be cited ex officio, in any cause but Testamentary or Matrimonial: Or they concern the manner of handling, and proceeding in the suit, as that, If a matter be duly presented against a man, he may not be examined upon his oath: whereunto some (belike meaning to qualify and distinguish it) do add this, viz. in a matter of incontinency or such cause: and that, no man is bound to declare any matter against another, except some be an accuser: Or do concern the sentence or judgement of the Court Ecclesiastical, as that by none Ecclesiastical authority, a man may be deprived of his benefice being his freehold, being not indited, and no suit of party offered against him: Or else do touch the execution of the judgement: as that the Q. Majesty cannot give, nor any man may take authority of her, to use any coërtion for any matter Ecclesiastical, but excommunications & such like: and that therefore a man may not be punished by imprisonment or fine, for or in any matter Ecclesiastical: and lastly, that a man that standeth above forty days excommunicate, may no way be punished, but upon the writ De excommunicato capiendo: and that the said writ may not be awarded, but upon original cause arising upon some of the ten crimes touched in the stat. 5. El. c. 23. But others that be indeed professed dealers for an innovation in the Church (when they are convented before authority) not only do most greedily take hold of these exceptions pretended to be taken from the Common law against jurisdiction Ecclesiastical; but do allege also sundry others, yet pretending to ground themselves for both, not alonely upon the laws of the realm (as those do, of whom we hitherto have spoken) but upon God's law also, the Civil, the Canon, or Ecclesiastical law, and upon equity and reason. Not because they were persuaded by the pregnancy of any of these so to think, but having embarked themselves in that common quarrel, viz. to impugn the government Ecclesiastical of this Realm, in all things to their utmost: have first (as is probable) entered into the opinions; and after have sought some colour to varnish them over with, wheresoever they could hit of it. Which their exceptions peculiarly framed by the professed Innovatours, and their own 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 & laid forth, when we come to the handling of them, because other parts of this Treatise are more apt for that purpose, than this general Preface. These opinions of late ringing sundry times in mine ears, and seeming to me to be diversly mistaken; I called to memory (so near 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 own persuasion. Now because you pretend not to have traveled in these kind of questions, & have so earnestly importuned me to take some pains therein: I have been content for your own only private reading & satisfaction, to plot my simple conceits into this order as you see. For owing very much unto you, & therefore not daring to deny you so small a matter, I have (with the little leisure I could get) hazarded rather to have want of judgement in me, then lack of good will, by you to be censured. Meaning in the first part of this Treatise to pursue the particular order here above comprised: saving that those four recited opinions which touch the circumstances of entering into a suit Ecclesiastical, and the manner of proceeding in it, I shall be forced (contrary to the natural method) to put after all the others, as requiring several handling, and falling more fit in the second and third parts of this Treatise. An Epistle to the Reader, containing the occasion of the publication of this Apology, with a general delineation of two Treatises written against the scope of some part of the same. Upon occasion touched in the Preface going before (gentle Reader) I was about a year & three quarters since, drawn to set down this simple Apologetical discourse ensuing, albeit in very many places thereof now enlarged. Which Treatise (by him to whom it was addressed) being then imparted unto certain others of honour and quality, it is said, that they were also desirous to have copies thereof, for some considerations to themselves best known. The book was somewhat long, and had many quotations, so that it could not conveniently in any short time be written out truly and fair, for so many as seemed earnestly to request it. Hereupon it was then (in private sort) committed to the press, and forty copies, or there about were printed, without any purpose of further publishing. It appeareth now, that near about the same time, certain Doctors of the Civil law (required thereunto by some in authority) did agree upon a brief schedule, containing some grounds of ministering an oath of office in crimes punishable by Ordinaries, and Ecclesiastical jurisdiction: a matter referred but to private consideration, and desired for like satisfaction only. This small schedule was after delivered forth (by some to whose hands it came; as the report went) to be confuted by certain Divines and Civilians of either University, and by certain professing the Common law. Sure it is, that within four months after, a Treatise (said to be penned against the purport and drift of that schedule) by sundry (holden wise, & not unlearned, 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 year (after knowledge of it had,) did pass; ere it happened to come to my poor hands: and that was by the means of a right noble Counsellor, who had also much adoc, to procure a copy thereof for himself. That which came to my hands doth carry this title, viz. A brief Treatise of Oaths, exacted by Ordinaries and Ecclesiastical judges, to answer generally to all such Articles or interrogatories, as pleaseth them to propound: and of their forced and constrained oaths ex officio: wherein is proved, that the same are unlawful. I was glad of this opportunity offered; for I hoped to be instructed in some important point, that I had not afore considered of: and either to be aright persuaded (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 book drawn with so great advise, by men of such rare skill and dexterity, and so well digested, I should not find demonstrative arguments, even to press mine assent against the course (as I took it) of the laws both Civil and Ecclesiastical; against the practice of all the other states of Christendom; and against apparent approbation thereof by God's book itself. But when I had first cursorily run that Treatise over; I must confess, I was partly drawn into cogitation, that I had not hit upon the right book: because such is either my dullness or prejudice (for I do assure you, I will not be opiniative against that which I may discern to be well grounded reason, or sound authority) that I stand yet as resolutely persuaded as afore, this piece of work notwithstanding. And albeit I wanted both fit occasion, and judged it also (for the reasons hereafter touched) not worth the while to say any thing to the unconcludency and imperfections, which I conceived to be in that Treatise; yet was I nevertheless (not long since) moved, by those who may command me, to take some time to answer it. Being signified withal from them unto me, that it was otherwise fully meant, to put mine aforesaid raw discourse of these matters (even as it was) unto print again, to be made public. Whereupon, knowing this resolution, and that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 might perhaps be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; I condescended to assay, whether I could as it were lick over my discourse again, into any more tolerable fashion: not omitting withal, to answer the whole matter of the aforesaid Treatise seeming to me any way pertinent; yet not in the same order as it is there set down, but in several places of my book, 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 offence) give you a general taste, by this Epistle. Truly I neither do know, nor have heard, who were any of the Authors, or who was the Enditer of it. If therefore it should happen that I did use some measure (though far scanted) of that liberty of speech, which is uppe-mette, pressed down, and running over in the Treatisour, against many in place, (I doubt not) his betters, and of as great worth and sufficiency as himself every way; I hope that I shall not (justly) be noted, to be carried with sharpness of humour against any particular person; but to have been provoked unto a moderate, necessary, and general defence. Albeit I purpose rather to way, what is fit for us to speak, then for him to hear. Unto the whole matter of the Treatise, these three several points might have sufficed for a general answer. The first is, that the state of the controversy, or issue, is by him mistaken: the second concerneth his arguments; for he assumeth that as granted, which is not; which in the schools is called, a fallacy petitionis principij: the last and third, is his sophistical answering, even to such objections as himself frameth. For the first therefore; ye are to understand, that in the Treatise itself, this seemeth to be the general issue by him tendered, against which he would argue: viz. the forcing of oaths by Ordinaries and judges Ecclesiastical, generally to answer to all such questions or interrogatories, as they shall demand or minister, touching either the thoughts, words, or deeds of him, that is to depose. Unto which in the title is also added another challenge, for that they are ministered of office, by the judges. So that he conceiveth erroneously all proceeding of office to be only in causes Criminal; and in this respect alone worthy to be challenged, because it is done by the judge, without prosecution of a party. Now if he do reason (as he pretendeth) against some matter practised by judges and laws Ecclesiastical in this Realm; then by charging them with exacting of oaths, for men generally to answer unto all their thoughts, words, and deeds, that they shall be inquired of, that I speak but mildly; it is a very untrue, and slanderous imputation, both to the men, and to the Law itself. If it were mistaken by him through ignorance, yet was it over great rashness, thus to speak evil of such as be in 1 judae ep. V 8. & 9 authority, especially for matters he perfectly knoweth not. But if it were wilfully done, then must I needs say, that he perverted and wrested the matter in controversy of set purpose, to make the men and whole calling odious; and thereby to give the better tang (in some men's tastes) unto those Cart-loads of contumelies, and spiteful 2 The Latins call this calumniam, the Grecians, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. reproaches, wherewith throughout the whole Treatise, it pleaseth him to charge both them, and their proceed; as (in part) shall by and by appear. For the second point of the three: he first defineth an oath: then he sayeth it is a part of God's worship: he telleth the end and institution of oaths by God's Law: and that they are either private or public: he showeth the necessity of it in some private suits: and what things are to be observed by him that taketh it, and what by the Magistrate, that giveth it: likewise he setteth down (yet but in part) certain cases, how an oath is used in some Temporal Courts; and how it ought to be used (as he saith) by the Canon Law. All which, I will not greatly now traverse with him. But hereupon he inferreth, that the oaths ex Officio used in Ecclesiastical Courts, are against God's Law, Common Law, and the Canon Law itself. So that if he mind to reason out of those premises, it must needs be gathered for him to this effect, viz. In the Law of God, in the Common and Canon Laws, we find oaths thus and thus prescribed, and used: But the oaths ministered in Courts Ecclesiastical touching matters Criminal, are contrary to this prescription and use: Ergo. They are contrary to those three Laws. I will omit that this reason concludeth not necessarily, being ex meris particularibus: because it might be, that though sundry oaths by those three Laws were in deed of such form; nevertheless other there may be also far different; and yet both sorts allowable. But for answer I say, that the Assumption, or second proposition (which must be understood) is by the Treatiser not once mentioned, much less undertaken to be proved, but is taken up by him as granted, which in truth is flatly by us denied. For it shall be proved (God willing) that there is no such contrariety as is by him surmised, no nor great diversity betwixt the oaths there ministered, and those, which Scripture mentioneth, or Common Law practiseth. Now touching the last point of the three: He maketh it as a sufficient answer unto objections that may be made, for assertion of such oaths as he impugneth: if he can but note any difference betwixt the things resembled together: though such diversity be not in the point, for which the comparison is made: no, nor in any other point, that is material. As for example. If a man affirm, that Christ's second coming may be compared to the coming of a thief in the night, meaning for the secrecy thereof, and want of expectation; should he well confute this comparison, that would thus say: No Sir, that is untrue, for there is a great diversity betwixt their come: because Christ cometh to deal justly, but a thief to do unjustly? But to come nearer home: If I did argue thus, viz. The received use of the starchamber to deny men counsel, when they answer to Interrogatories, is not against the Rules of justice; therefore no cause is there, why the like approved use in the Chancery, should be counted against justice: I pray ye, should he reason sound against it, that would answer it in this sort: Oh Sir, there is a great diversity betwixt those two Courts: for the one proceedeth criminally, to inflict penalties for the Queen, the other but Civilly for private amends in equity, unto the party? Or if he should answer thus: The Lords of the Counsel be judges in the one, but not so in the other? Considering, that in all things (being not the same) there is diversity; 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 be found upon discussing, to labour of some of those three infirmities; so that (as himself affirmeth in the winding up of all) he might truly say he hath used but few proofs: I could therefore have wished, that he had not showed himself as Suffenus sibiipsi, by setting the Garland upon his own head, before the victory; where he telleth us, that albeit his proofs by him brought be few, yet (saith he) they are effectual. And thus much for the matter of that Treatise. Now let us here also consider the manner of penning, and the brief of the rest of his unnecessary words, which are wholly besides the matter. For the inditing, surely I do esteem it (for my part) to be a very commendable, easy, and flowing (if not overflowing) style. Yet if I may be pardoned to speak freely, that which I think, truly it runneth altogether upon an haughty, controlling, contemptuous, disdainful, and salt mineral vain, as may appear by a taste of some particulars, not unfit to be opened; which for order sake, I will contrive into these five several heads: viz. 1. Of his discourteous and opprobrious terms used against sundry particular persons and callings: 2. His covert reproaching and wounding of all Ecclesiastical judges through the sides of Papists, for their raging against Subjects, and treachery to their Sovereigns, in former times: 3. His reviling the proceed Ecclesiastical, which he there impugneth: 4. His untrue imputations and slander of these proceed: And lastly, the pretended impieties supposed thereby to be committed, with the dangers and penalties, that he chargeth all such to have incurred, which have been dealers in such practice of Ecclesiastical jurisdiction. For the first of these: as where he termeth all that practise that part of Ecclesiastical jurisdiction (whether Ordinaries or Commissioners) by the names of Inquisitors, rough and rigorous exactors, and offensive butchers: Chargeth them to cloak and shadow foul matters under glorious and painted glosses, beautiful shows, and feigned pretences: that of their judicial Courts and Consistories, this saying of the Poet is verified, viz. Victa jacet pietas, & tergo caede madentes Vltima coelestûm terras Astraea reliquit: As if they had there murdered or unlawfully put some to death. Where he also saith, that Ordinaries challenge or assume to themselves the goodly name and title of Spiritual men: that they are men to whom the savour of gain is sweet, and therefore sayeth of them, Auro loquente tacendum est. Those Doctors also which by commandment do (as afore) seek to justify the course that he oppugneth, he calleth (thorough contempt) English Doctors: a term usually sastened but upon such, as bear the name of learned, and yet besides English (their mother tongue) perhaps understand none other language at all: yet the meanest of such Doctors can tell, that a Publican differeth from a collector, and that regula juris signifieth not an example or precedent, at both which he stumbleth. He pleasantly also (like a Sennor Soldado) sorteth nine of them by ranks, into more than two quaternions, as the soldiers which kept S. Peter were sorted: as if through their baseness, a quaternion of them were not worthy to be laid in balance with a mess of such as himself is; or as though in a brave resolution of his own 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 scorn) Learned Canonists: as if he would insinuate, that the little skill they have, were in the Canon law only, which he nameth the Pope's Testament: and as if their degrees of schools were taken in that profession. Whereas it is well known, that their profession and degree, is in the Civil laws: a law being (for the equity and wisdom thereof) by the space of sundry quaternions of hundreths of years, the common law of all the Civil nations of the world save one. What he esteemeth of it, greatly skilleth not, but Tully, a man more wise than he, doth give it exceeding great commendations. And all the Christian world (saving ourselves) are not destitute of reason, for well esteeming and practising of it. For the course of those Doctors education, it hath been in the liberal sciences, in the languages called learned, and perhaps in such of the vulgar also, as be of any commendable note, and in other sorts of good learning. Wherein if they have accordingly profited, their employment (happily) may be many ways (thereby) as behoveful to the service of their Country, as that which some call learning, is beneficial and gainful to themselves. Likewise the poor Apparitors that serve in Ecclesiastical Courts, he calleth them, their hunting Spaniels, malapert Apparitours, Messengers and Pursuivants: men though in mean place, and but ministerial quality, yet as necessary to be had in those Courts, as Errand-bailifs be for Temporal. To come to the second; may it be denied, that the matters wherewith he reproacheth the Popish prelate's, of former times, are bend per obliquum, through their sides to wound all the Reverend fathers, and others now living? who (for proceeding of Office against some of his darlings) are fallen as deeply into his indignation. For have these sharp biting terms been bestowed upon any of their late Predecessors, or upon them, till of late years, that certain disordered persons joining (though in other respects) with the Papists, to oppugn this Church, have been dealt with in the same course, that Papists are, and were from the beginning of her majesties reign, before these other sprung up? If this were not his meaning, for what end is almost half his Treatise spent by way of invective against the Popish Prelates? So that (no doubt) he meant to lay upon the present judges Ecclesiastical the reproaches of them, whose steps he chargeth them to follow, in that this course of proceeding was (if we may trust him upon his bare word) brought in by the practice of the Popish Clergy: And therefore he sayeth, that Bishops now practise Antichristian decrees, and Popish Canons, the very heads of that Hellish Cerberus of Rome, and the sinews of his tyrannical authority: For else this were but running of riot, and vain barking against the Moon. Of this sort are those his other speeches also, viz. that the Papistical Clergy most irreligiously practised the same: that they finding it a fit instrument to maintain their Romish Hierarchy, and to tyrannize over the consciences of good men, most impiously violating the laws both of God & man, imposed this manner of corrupt oath upon the people: that they were far more cruel than Claudius or Caligula: mad men, greedy & devouring Wolves: that they fed (with delight) their fierce and cruel minds: that they tyrannised in cruel manner: that they forced men with rough and rigorous terms of disgrace & reproach: that they were merciless magistrates using sudden and raging committance: that they promised in verbo sacerdotali, if that be aught worth: and he calleth them unbridled Clergy men, Pharisaical Clergy men, unjust & lawless men, with their bad practices and fond intentions: merciless Ordinaries, with their extraordinary and lawless power: their actions cruel and accursed dealings of Barbarous bloody bishops, murderous minds and intolerable iniquity of bishops, using a Barbarous course of inquisition. He inveigheth also at large, against their hypocrisy & feigned holiness: against their temporal possessions, as the nurses of pride, presumption, and vain pomp of the world. Truly if this kind of mislikers, had that little of temporalties which is still left, how humble they would be may justly be doubted: but I durst undertake for them, that they will use no great pomp in hospitality, nor in any thing else, saving in words. Likewise against their ambition: for he affirmeth, that three Archb. enforced above the kings of the land: against usurping & encroaching upon the kings jurisdiction by Popish prelate's, to bring causes to their costly and linger consistories: against bringing in (by them) of foreign decrees, corrupt canons, and ceremonies of the accursed See of Rome: against their claiming of exemption from taxes imposed by any other whomsoever, then by the Pope's authority: and against certain clergy men, that (in former times) opposed themselves (with great obstinacy) against the payment of a subsidy: as if lay men had not done (rebelliously) as much, as these did obstinately: Against haughty Hugh bishop of Lincoln, who (he saith) as a lusty champion of that irregular confederacy drew out his wooden dagger of excommunication, against the kings judges: against a bishop of Winchester, who was outlawed for a wilful murder, and a while refused the judgement of the king's law: against the Pope's collector who convented the vicar of Saltash afore himself, for breach of an oath given for strength of a bond: against the hospitalers and Templars, who drew the king's subjects into suit, before the conservator of their privileges: And against the proud prelate cardinal Woolseys' court legatine; and both his and Nixe the blind bishop of Norwich his falling into praemunire, for encroaching upon the king's jurisdiction: Adding also a sly surmise of some other things (in the times of Popery) to have been used, which he doth but vainly imagine, to be now practised by Commissioners Ecclesiastical. So that by this trick of cunning conveyance, he would induce and draw on his affectionate readers to believe, the same to be now in all bishops present, which was blame worthy in any of their predecessors. For his favourers may not judge that such a man as he, would wander so far wide (as he doth) from his purpose: belike if these now do but any one action (though never so justifiable) which the Papists have done in times past, they shall carry all the contumelies, which they (in any other respects) have either worthily, or unworthily deserved. Whether this be a direct Christian course, every one that is in any place of justice shall most sincerely discern; which will but consider with himself, how unequal he would judge it to be, to have his own honesty, discretion, loyalty, and religion measured and esteemed of, according to the actions of the worst men that ever afore occupied the same place that he now doth. Unto the third point (which is reviling of proceed Ecclesiastical (in this behalf) all such speeches of his, as these following do appertain: of the whole Canon law indistinctly and generally he speaketh thus: that they be laws and ordinances contumelious against God, injurious to Magistrates, and especially established to maintain Antichristian tyranny: Of an Oath of purgation, or an oath ministered to answer (in some cases) unto Articles and interrogatories criminal, he saith, It is against law and reason; an intolerable error and disorder: a fowl and great abuse: hard and unjust dealing: undiscreet, unjust, and unlawful forcing: offensive proceeding: usurped officious power, and licentious pleasure, contrary to all due course of justice: a violent course of injurious inquisition, examination, and of wrested oaths: a lawless proceeding which the justice of the land detesteth: that they be unjust oaths, and full of iniquity: strange oaths & strong purgations, not healthful but hurtful: poisoning purgations, given for preservatives: Catholic oaths: a vicious and lawless inquisition: and lastly, a profane, and more than heathenish Inquisition. The fourth point concerneth his untrue and slanderous accusations of their proceed, who be judges Ecclesiastical: as where he saith, that such general oaths (viz. as afore hath been touched, when I spoke of the issue mistaken) are exacted, none accusation, suit, lawful information, presentment or indictment judicially preceding: that the Ecclesiastical Commissioners, term themselves high and supreme Commissioners: that it is exacted by every ecclesiastical judge to satisfy his jealous suspicion of any crime, to appose by oath, and compel men to their purgation, or upon every bare surmise and uncertain rumour: that by the like reason (unto the practice of this oath) there should be erected a court of Inquisition, more than Spanish, to sift and ransack (by oath) most secret thoughts: That the Interrogatories used by Ecclesiastical judges are not certain, but do foolishly wander at the doubtful will of a sly and subtle apposer: that having snared the silly subject, they do either (against law) enforce him to accuse himself of his most secret thoughts; or contrary to Christian charity, yea humanity, constrain him to answer against his natural parents, etc. And that in defence of these abuses, divers even of the learned sort, do great violence to the Statute, 1. Eliz. cap. 1. wresting the same to a wrong sense: all which are very calumnious accusations. The fifth and last point of his lavish and lose speeches; concerneth the impieties, dangers and penalties, wherewith he chargeth all that have dealt in any such Ecclesiastical cause. As first, that it is a great and profane abuse of the holy name and majesty of God: that God's sacred institution is thereby greatly perverted: that it is hurtful to the Church and common weal: that it is a great indignity to the Crown: that they usurp cognisance of pleas: that they do no lessethen Thorpe sometime chief justice did, who (as much as in him lay) broke the oath which the king is bound to keep towards the people: that they are violaters of the king, and injurious dealers against his Regality, Crown and kingdom: nay rather lay violent hands on him, impugn his royal throne and sceptre contrary to the policy, justice, laws, customs, and freedoms of this kingdom; yea contrary to the law of God itself: that hereby they impugn the royal prerogatives united to the Crown, with the breach of their own oaths; especially if they have taken the oath for the maintenance of the supremacy royal, whereof he maketh some doubt (as it seemeth) and adviseth them of this danger, as a 1 Scilicet. well-willer: that it is plain extortion and wrong unto the party. And lastly, that they are all offenders, and do incur the forfeiture of the penal laws of Praemunire. Seeing then his words of this matter be so big, his terms so biting, his speeches so confident and peremptory, and his accusations so grievous: Is there not (in defence of justice and of so many good and great learned men in several professions) great occasion offered to have it examined; whether the force and weight of his reasons will bear out this copious harvest, and hot raging fever of words, or whether these words were but used because matter wanted? What weight and moment his reasons are of, is not of this place particularly to discuss, but shall be reserved to the several parts of the Discourse following. And I will not strive by bare words to return these of-scowrings of a fowl mouth and a defiled pen upon him again; further than must needs cleave fast to himself, the Author of them: when they shall (by reason) be wiped off from the persons charged, and so are to rebound back, upon their first owner. And to give you an inkling (in the mean time) that it is not otherwise like, then to fall out so: It shall not be amiss, a little to consider how gingerly sometimes he treadeth in this matter: and how here and there himself minceth and qualifieth the state of the controversy, as it were waving his first issue; notwithstanding all those his former high looks and brave terms. For first he granteth, that divers even of the learned sort, do hold, and that very confidently, (meaning hereby as I take it, sundry professors of the Common law) that these proceed which he impugneth, are warranted by the Statute, 1. Eliz. cap. 1. and can he (whosoever he be for a man) showing no more, yet see more herein then so many of the learned sort can, that be of an other judgement? And though he exclaim (as ye have heard) mightily, that this kind of oath is contrary, and a stranger to the laws, justice, and policy of this Realm; yet in the very closing up of his treatise, having said, that it was never put in ure or use by any Civil magistrate of this land: by the strength of truth is forced to add thereunto this exception: viz. but as it is corruptly crept in amongst other abuses, by the sinister practices and pretences of the Romish prelate's: thereby employing, that yet it hath been used of long time by the Civil policy and magistrates of this Realm: noting them withal, I know not with what other abuses, as being overrought, which belike they also shall hear of, as his leisure will permit him, if they please him not in the mean time the better. Likewise, going about to answer the objection that may be made, for justifying of this oath by the like approved course in the starchamber: he useth these words as a reason of his allowance of such proceeding there: viz. The starchamber requireth an answer to matter in fact, done either to the injury of a private person, or hurt to the public State. Then (by like reason) if judges and Commissioners Ecclesiastical, shall but require this oath to answer matter in fact (as in very truth they do none otherwise) done to the hurt of the public State, then is the cause in controversy thus far yielded up by him. But can he (in deed) think it reasonable and just, to exact such oath for punishment of an injury done but to a private person in his temporal goods, or such like: and shall it be in his judgement unjust and unreasonable to be exacted for discovery and restraint of such enormities, which cannot be denied to be prejudicial both to the state of the Church & Common weal, wherein judges Ecclesiastical most usually do practise it? Vltrà non desidero; habemus quasi confitentem reum. In another place of the Treatise, he sharply inveigheth, for that the Commissioners Ecclesiastical, minister the oath before the party be permitted to have the Articles. Now in his showing of differences betwixt the proceed by Commissioners ecclesiastical and the starchamber, one of them is this; that the defendant there, hath the copy of the bill of Information to answer by his counsel, ere he take his oath for the truth of it: yet he restraineth it thus, viz. So the Information in the starchamber be not made Oretenus: so that it must hereupon needs be yielded that at sometime, and upon some occasion it may be: and therefore it is not simply unjust, to give the oath before the defendant have a copy: nor for him to be debarred from counsel, when he answereth but interrogatories of his own fact or knowledge. For (in deed) the defendant in the starchamber is not allowed counsel, when he answereth to Interrogatories, sorted into Articles, but only is allowed counsel for the manner of framing of his answer to the Bill into due form of law: the Counsellor not advising him in the matters of fact, least happily he draw the defendant into perjury. For it were very unreasonable, that counsel should direct him in the matter, and as it were to say unto him: answer not this thus, though it be true; for than you are like to be grievously punished. Nay rather, as a writer in the Civil law adviseth: the counsel (even 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; he limiteth his meaning by these words, viz. in that general manner: which is, as afore he had surmised: viz. to sift generally all a man's thoughts, words and deeds, and that without any accusation, or complaint precedent: so that it is not simply the urging of them to take oath in a criminal cause which grieves him, or is to be condemned: but to do it in that general manner, for all thoughts, words and deeds. If then no such matter be (in very truth) ever practised, the man (it seemeth) will easily be reconciled again unto them, whom he so eager afore snatched at, and took up. Lastly, in one part of the Treatise he speaketh in deed against oaths in criminal causes: but it is with this taxative restraint: especially (saith he) in causes of life and death, contrary to the laws of this realm: so that if it be not ministered in any cause of life and death, no, nor yet in any cause of mutilation of limb (as in very truth it is not now by any court ecclesiastical, a thing most notorious) then there is no cause of offence given, either to the laws of the realm, or unto himself. And therefore for this time the Treatiser, and those which exercise jurisdiction ecclesiastical, may seem (in some broken manner) to be grown again to a pretty kind of pacification; hold as well, & as long as it shall. But there is another party also, that perhaps will venture to rip up again the seams of this green peace, if he may not (in some sort) be satisfied. For there came unto mine hands a good while after the former Treatise, certain brief Notes (without discourse) that are delivered abroad into many hands by writing; being commended to be gathered by a man of great reading, and judgement in Divinity, I awe, and in what not? It beareth this title, Notes to prove 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 laws, liberties, and customs of the realm of England: the proceeding of Office, and the oath required, though he telleth not how he conceives it to be required, (as the Treatiser did) do both fall into this disputation, which we have in hand. As for the subscription; (upon other occasion) that may hereafter elsewhere be debated. The several points which (in respect of the two former) he handleth, are by himself distributed and sorted into these several heads: viz. First, testimonies out of ancient Fathers, that do mislike the proceeding ex Officio, and oath now used: Secondly, English Martyrs that have refused and misliked the oath now used: Thirdly, the proceeding against heretics in England, without exacting an oath &c: fourthly, the Canon law teaching Inquisition and proceeding ex officio by oath. Fiftly, another order of proceeding, but yet in causa fidei, and not otherwise. sixtly, the bishops proceed contrary. Seventhly, the laws of England. eightly, the manner of the revocation of the proceeding ex officio in king Henry the 8. time. Ninthly, the manner of debating of that cause in those days. 10. Sir Thomas Moor's reasons for maintenance of proceeding ex Officio & the oath, with summary answers to them. 11. And lastly, Inconveniences which come by the use ex Officio, contrary to the common law. For proof of some of which (especially the first) he is so plentiful in quotation only of places, (without rehearsing their sayings) out of the ancient Fathers, counsels, etc. that for mine own part, I must confess that upon the first view of their names in his moster book, I was greatly astonished, lest I had too resolutely defended a matter against such an army of ancient Fathers, and as it were against the general consent of the old Primitive Church; from which I mean not (God willing) casilic or rashly to serve. But when I had approached nearer, I well discerned this my fear to be all in vain, in that they had neither banner displayed, nor weapons bend against this cause, but rather against the faces of the adversaries thereof: as may plainly appear in the several & opportune places of this simple Discourse ensuing. I may well resemble this dealing of the Notegatherer unto young setters up in London, as Apothecaries and such like, that be not at first well stored with stuff: who to furnish up their shops unto the best show, are wont oftentimes to embellish them with good numbers of painted galley pots, boxes and glasses, entitled on the outside (even with golden letters sometimes) of such precious Waters, Oils, Simples, and other drugs of medicine, which they never smelled of, because such never came within them. And perhaps I should save him from suspicion of a greater fault, (that is either want of judgement, or of wilful perverting of the ancient Fathers) if I should freely deliver my conceit in this behalf: which is, that his leisure served him not, to look what was indeed contained in those places, which there he quoteth: but that he did set them down (upon trust) out of the Pies or Indices of the said several books, wheresoever the bare words of Inquisition, of Accusing, of Oath, or of Swearing was found. For I dare avow, that he which shall read them in the Authors themselves, will judge, that many of them were gathered together in condemnation of taking any oath at all, (an error holden by the Anabaptists) albeit being truly understood according to the circumstances, the places serve neither the one turn nor the other) rather then that by any colour, they may be wrested to speak either against oaths ministered in causes criminal, or against proceeding by judges of Office. Let thus much therefore (if it be not too much) suffice, to have delivered in some generality, touching the said Treatise and Notes. both which are undertaken, for the whole substance of them, to be here and there answered, in this simple discourse ensuing. THE CONTENTS OF the several Chapters of the First part. 1 THat a several royal assent is not required to the executing of every particular Canon. 2 The particular distribution of all other causes to be proved to be of Ecclesiastical conusance, besides Testamentary or Matrimonial, with a discourse of bishop's certificates against persons excommunicated, being a special point of their voluntary jurisdiction, where there is no party which prosecuteth. 3 That matters in the former chapter adjoined to Testamentary & Matrimonial causes (though properly they be not of Testament or Matrimony) are of Ecclesiastical conusance, and how far. 4 General proofs out of statutes, that sundry other causes besides Testamentary or Matrimonial, are of Ecclesiastical conusance. 5 That suits for title of Benefices upon avoidance or spoliation: likewise that suits for tithes, oblations, mortuaries, etc. for pensions, procurations, etc. are of Ecclesiastical jurisdiction, is proved by statutes especially. 6 That suits for right of tithes belong to the Ecclesiastical jurisdiction, and how far, is showed out of the books and reports of the Common law: so of places of burial and Churchyards: and of pensions, mortuaries, oblations, etc. 7 Of right to have a Curate: and of contributions to reparations, and to other things required in Churches. 8 Proofs in general, that sundry crimes and offences are punishable by Ecclesiastical jurisdiction: and namely idolatry, heresy, perjury, or laesio fidei, and how far the last of these is there to be corrected: also of disturbance of divine service, or not frequenting of it, and neglect of the Sacraments. 9 That Simony, Usury, defamation or slander, beating of a Clerk, sacrilege, brawling or fight in Church or Churchyard, dilapidations or waste of an Ecclesiastical living, and all incontinency are punishable by ecclesiastical authority, and how far. 10 That the matters and crimes here reckoned, be also of ecclesiastical jurisdiction: and proofs that any subjects, lay or other, may be cited in any cause ecclesiastical. 11 That lay men may be cited and urged to take oaths in other causes, then Testamentary or Matrimonial. 12 The grounds of the two next former opinions examined and confuted. 13 That judgement of heresy still remaineth (at the Common law) in judges ecclesiastical: and that the proviso touching heresy, in the statute 1. Eliz. cap. 1. is only spoken of ecclesiastical commissioners thereby authorised. 14 That by the statute, her Majesty may commit authority, and they may take and use for ecclesiastical causes, attachments, imprisonments, and fines. 15 That an ecclesiastical person may be deprived of his benefice without inditement or prosecution of party. 16 That after forty days, an excommunicate person may be otherwise punished then upon the writ De excomm. capiendo; and that the said writ may and aught to be awarded, upon contempts rising on other causes ecclesiastical than 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 Indicavit. 18 An analysis or unfolding of the two special statutes touching Praemunire, with sundry questions and doubts about that matter, requiring more grave resolution. THE FIRST PART OF an Apology of certain proceed in COURTS ECCLESIASTICAL, wherein is chief showed what matters be incident to Ecclesiastical conusance, and so allowed by Statutes, and Common law. CHAP. I. That a several royal assent is not required to the executing of every particular Canon. IF no Canon or Constitution ecclesiastial might now be put in ure, but such as her majesties express assent is first had unto; then do all their other opinions against the ordinary jurisdiction ecclesiastical stand in no stead, and might be spared; because this would serve to cut off all at once, which they shoot at. For none that exercise ordinary jurisdiction have hitherto had it in particularity (which by the oppugners seemeth to be meant) otherwise then by permission of law, unto every of their proceed. Neither in truth, for the infinity of it, and troublesomeness to procure such assent from her Majesty, for every particular matter & dioecesse of this Realm (from time to time) were it possible to be used. Now if Ordinartes (from whom either mediately or immediately, appellations do lie unto her Majesty in the Chancery) by reason of the want of such particular assent, unto the execution of every canon, shall (according to this conceit) have nothing to do; then cannot the Queen's delegates neither (to whom appellations from Ordinaries do come) have any thing wherein to bestow their travel: and therefore this point seemeth first of all meet to be cleared, and to be bestowed in the first rank. The absurdity of this opinion (whosoever were the hatchers of it) will easily show itself. For if matters testamentary & matrimonial (which all they grant to be ecclesiastical) right of tithes, and sundry other causes (which shall be also proved so to be) shall not, ne can not, by reason of this want, be dispatched (as now they are) by ecclesiastical jurisdiction, and yet can not be dealt in by any other authority, according to any law now in force: then is there a main imperfection in the policy of this Common weal, viz. For men to have a right, and yet no likely or ready mean to come by it: and for gross oftences to be committed (that are by law punishable) and yet no man sufficiently authorized to execute such laws. The judgement of whole Parliaments kept in several Kings and Queens reigns (since that act, whereupon this fancy seemeth to be grounded) so many as have had cause to speak of the jurisdiction ecclesiastical, do also fully convince it. The 1 25. H. 8. ca 19 statute for delegates upon appellations, doth argue, that Ordinaries might (without further leave obtained, as in former times they did) execute their jurisdiction ecclesiastical. For if there were to be no more ordinary proceed, till the king should give his assent to the execution of every canon; for what use should appellations from the decrees and judgements of Ordinaries, be there provided for? Likewise 2 27. H. 8. ca 20. 32. H. 8. cap. 7. two statutes were not long after provided in assistance of jurisdiction ordinary, and for the better and speedier recovery of tithes in Courts ecclesiastical, according to the course of the ecclesiastical laws in that behalf. And the 3 34. & 35. H. 8. cap. 19 like was also enacted for recovery of pensions, procurations &c. withholden. In the time of K. Edward the sixth, in 4 1. Ed. 6. cap. 2. a statute (since repealed by queen Marie) a great number of particular causes of jurisdiction ecclesiastical, are there (by the way) rehearsed; that Ordinaries & other ecclesiastical judges might, and did then deal in. In the time of queen Marie (before the supremacy was given unto the Pope) the 5 1. Mar. cap. 3. act for not disturbing of divine service or preaching, reserveth the jurisdiction that Ordinaries than had, for punishment thereof, by laws ecclesiastical, over and above the penalties (of new) thereby inflicted. In the Queen's majesty's 6 1. Eliz. cap. 2. time that now is; by the act for uniformity of Common prayer, Ordinaries etc. may inquire etc. and punish the violations of that act, by censures &c. as heretofore hath been used in like cases, by the Queen's ecclesiastical laws. The Statute De excom. capiendo, reckoneth 1 5. Eliz. ca 23. up (particularly) divers Crimes and offences Ecclesiastical; punishable by that jurisdiction, which were hindered much from punishment that appertained, for want of due execution of that writ De excom. capiendo, and therefore provideth remedy therein. Which necessarily argueth the continuance and approbation of execution of jurisdiction Ecclesiastical by Ordinaries, without further obtaining of leave. By the statute against perjury (made at the same time) 2 5. Eliz. cap. 9 it is provided, that it should not extend to Courts Ecclesiastical: but that offenders in perjury, or subornation in a Court Ecclesiastical, shall and may be punished by such usual and ordinary Laws, as heretofore have been, and yet are used and frequented, in the said Ecclesiastical Courts: which proveth the usual practice of jurisdiction Ecclesiastical hitherto used (without any special assent) to be lawful. The statute against usury provideth, 3 13. Eliz. cap. 4. that such usury as is above ten pound in the hundred by year, shall (not withstanding the other penalties there newly inflicted) be also punished and corrected (as in times past) by the Laws Ecclesiastical. And by the 4 13. Eli. cap. 10. statute of dilapidations, the remedies that by the Laws Ecclesiastical were (afore) given against executors and administrators of incumbents; are there extended also to donees and alienees; to be (by the same authority) dealt with. In the which clauses of statutes, there is no repeal of any former particular statute or Law, nor any general non obstante contained. And therefore, if those Parliaments had been of this judgement; that no Canon might now be put in ure, without the Royal assent first obtained, there would have been added these, or some like words, viz. They the said Ordinaries first obtaining the royal assent for the putting in ure of such Canon, as they mind in that cause to proceed by: that thereby (without all scruple of danger) their proceed (so appointed to them) might have been warranted. But being altogether needless, it is no marvel though it were omitted. For can any man doubt (if it were needful) but that there is a sufficient Royal assent had, when as it is given to the whole act, before it can pass for a Law? Lastly, the same statute out of 5 25. H. 8. ca 19 which (as I conjecture) this opinion was stirred up, doth establish all Canons which be not contrariant nor repugnant to the Laws, Statutes, and customs of this Realm, nor to the damage or hurt of the King's prerogative Royal, that they shall now still be used and executed as they were afore the making of that act, till they should be viewed &c. by the 32. persons, etc. which is not hitherto done. But such were used afore, without any express or particular Royal assent (from time to time) obtained: and therefore may still be used without any such new assent. For to exact it were (in very deed) to bring in a quite disuse of all ordinary Ecclesiastical jurisdiction in stead of using it: which hitherto (from planting of Christianity) and in all succeeding times, hath nevertheless been practised. This opinion, as an arrow shot unadvisedly at the Bishops, glanceth off them, and woundeth very deadly the favourers of the new Discipline (in whose behalf it was framed.) for they are so far from taking express leave of the Prince, to put every of their Constitutions ecclesiastical in ure, that they hold, her Majesty hath nothing to do to make or establish any Church-lawes. And the clause for use of such former Canons and Constitutions synodal afore mentioned, as they were used afore that time, will not help the exercise of their synodical constitutions made long after in a Conventicle, called together by their Moderators writ. But belike (when they set up) the statute of submission of the Clergy shall be turned into a statute of submitting the Prince's sceptre, to the rule of their Presbytery in all Church-matters. The chiefest colour and pretence 1 25. H. 8. ca 19 for this opinion, is taken (as I conjecture) out of the now revived statute made in K. H. the eights time, of submission of the Clergy. But the words thereof do plainly discover the weakness of such collection. for it is not enacted simply, that they shall not put in ure, etc. any constitutions etc. but according to their above said submission and petition, which was, that they would not enact nor put in ure any new Canons, etc. in their Convocation, without the King's royal assent and authority in that behalf. Otherwise there were a flat contrariety in the self same Act, by reason of the last proviso thereof (next afore repeated) where Canons already made (so they have the qualities thereby limited) are appointed to be used. For it is there said, shall be now still used and executed as they were before the making of that Act. And where in 1 27. H. 8. c. 15. the 27. year of the said King, the same submission and former Act is repeated, there in the very body of the statute (touching not putting in ure of Canons, etc.) the same modification (as afore) is retained, viz. According to the said submission and petition of the Clergy, which concerneth only new Canons. For of those that were then already made, the very self same proviso (as afore is set down) appointeth, that they shall still be used and executed, as they were before the making of either of those Acts. Which was, without any such express assent (as by this opinion is enforced) and is therefore neither requisite, nor almost possible. I have also heard some allege the 2 1. Eliz. ca 1. clause of the statute, made for uniting of all Ecclesiastical jurisdiction to the Crown; against the exercise of jurisdiction by any Ordinaries: which (to mine understanding) is a very simple collection. Belike they mean, that no jurisdiction is united to the Crown, but there must be a Commission under the great Seal (to warrant the execution of it) unto him, that is to exercise it. Then must every Steward of a Leete, every Constable, and sundry other Officers be driven to procure like warrant for the execution of their Temporal offices, for (I trust) it will not be denied by these men, but that all Temporal authority and jurisdiction, is by Law also united to the Crown. In deed this reason would serve against either the one or the other jurisdiction, if they were not derived and claimed from the Crown, but from some other authority immediately; as the Popish Clergy did theirs from God, by the means and direction of the Pope. Yea even another 3 8. Eliz. ca 3. Parliament showeth, how far this collection is from the mind of the makers of that Law. For that very clause 1. Eliz. ca 1. (together with her majesties letters Patents, directed forth for confirming and consecrating Archbishops and Bishops) is brought, in the Preamble thereof, as a strong proof without scruple and ambiguity, that the authorities and jurisdictions by them executed; be thereby given unto them, from her Majesty. And therefore this opinion doth remain destitute of any ground of Law. CHAP. II. The particular distribution of all other causes to be proved to be of Ecclesiastical conusance, besides Testamentary or Matrimonial, with a discourse of Bishop's certificates against persons excommunicate, being a special point of their voluntary jurisdiction, where there is no party that prosecuteth. THe next opinion, viz. That by the laws of this Realm none Ordinary may cite any whomsoever, but in causes Testamentary or Matrimonial (though it draw deep) yet it hath not so large a reach, nor draweth so great a compass as the former. For this leaveth some ordinary jurisdiction Ecclesiastical in these two cases; where the other (upon the matter) sweepeth away all. But if this be simply true, than the former must needs be false. For if (by Law) an Ordinary, without more a do, may cite men in these two cases, then may some Canon, etc. (by Law) be put in ure, without any further Royal assent to execute the same. But if it shall be proved true, that (by the Law of the land) in some causes besides Testamentary or Matrimonial, an Ordinary may cite: Then this opinion, that in no causes besides Testamentary or Matrimonial, an Ordinary may cite (being the contradictory thereof) must needs (according to rule of reason) be proved false. For it will not be denied by any, but in what cause soever an Ordinary may lawfully deal, in that (if need be) he may use citation. All matters done by Bishops (who only be immediate Ordinaries under her Majesty) either belong to their order and degree, as ordaining of Ministers or Deacons, confirmation of children, dedication of Churches or Churchyards, &c. or to their jurisdiction. Their jurisdiction is of two sorts: the first is voluntary, that is, when those whom they deal with, do not stand against it: (and such for the most part, are Institutions, probate of Wills, and committing of administrations, visitations, certificates of Bishops into the Q. Courts, ordaining of Real compositions in matters ecclesiastical, etc.) But something must here be said touching certificates of Bishops; because none so fit a place hereafter doth fall out, for this matter. A little Treatise set out in the time of King Henry the eight, and printed by Berthelet, cum privilegio, (proving that by the laws of this Realm the B. of Rome had not, ne aught ever to have had any supremacy here) doth 1 Cap. 1. thus write of these certificates. If (saith he) Excommunication, Bastardy, Bigamy, Deposition, or Deraignement of a religious person, or Divorce, be certified by a Bishop of this Realm, it is admitted in the King's Courts; but the Pope's certificate is not admitted. And as certificates of Bishops be in these cases admitted at the common law, so have sundry statutes since, authorised their Certificates duly made into the Queen's Courts, in certain other cases. Nevertheless, I find two cases in the said Treatise, where the Certificate of a man's excommunication from a Bishop, shall not disable the party excommunicated from his action: as regularly excommunication doth when it is duly certified. For first, 2 Ibidem ca 4. if a Bishop be a party to a suit, and do excommunicate his adversary; such excommunication (though it be certified) doth not disable his adversary in his action. Secondly, 3 Ibidem. where an action of debt was brought by an executor, and an excommunication under a Bishop's seal was pleaded against such executor; this was adjudged no good plea: because the executor was not to recover any thing to his own use: and for this there is alleged 14. and 21. Hen. 6. But if this were the only ground and reason of such judgement, then where this reason is not found true in fact: as it may often happen, if the goods and chattels be great, the debts and legacies small, and where the executor hath clausulam de residuis by the will, viz. all the remnant of the goods and chattels bequeathed to him: it would seem to me (under correction) that in such a different case, the law also should be otherwise: because much cometh to the executors own use in particular. This certificate of excommunication by Bishops of all the others is most in use: and would be of more use, to the great commodity of her Majesty (especially upon the statute de excom. capiendo) and to the terror of sundry malefactors: were it not for the chargeablenes of that course unto Ordinaries (whom the tenth man that is certified, doth not satisfy again) and for the manifold abuses about the execution of that writ, committed by under officers: and were it not that, iura & libertates, the laws or rights, and liberties of holy Church, granted and confirmed by the great Charter, are not so inviolably in these days maintained; as was meant by 1 15. Ed. 3. ca 3. those acts of Parliament, which do exact oaths for observation and defence of them. It is a liberty peculiar to this Church of England, above all the Realms in Christendom, that I read of: that if a man stand wilfully forty days together excommunicate, and be accordingly 2 Nota interlin. pag. Regist. 65. b. certified by the Bishop into the Chancery, that then he is to be committed to prison, by virtue of a writ directed to the Sheriff. Notwithstanding, that in one precedent (in the Register) of this writ, it 3 Regist. in breu original. pag. 68 a. is said; quòd huiusmodi breve nostrum, de gratia nostra procedat. For a note in the same book upon the same word (used in another writ) doth teach us; that such clause is but used, pro honore regio, etiamsiad id de iure teneatur. And it appeareth by sundry old precedents of writs there, that the granting of this writ, is by law required: as where in a writ de excommunicato capiendo 4 Reg. in br. orig. pag. 65. it is said: quòd potestas regia sacrosanctae ecclesiae in suis querelis deesse non debet. And in sundry other writs of that kind, it is 5 Ibid. & pag. 66. a. & b. 68 a. & 69. b. & 65. b. affirmed to be, secundum consuetudinem Angliae, which is the Common law of this Realm. And therefore in other precedents of the same writ, the King saith 6 Ibid. pag. 69. a. thus: Nolumus quod libertas ecclesiastica, per nos vel ministros nostros quoscumque aliqualiter violetur. And again, 7 Ibidem. jura & libertates ecclesiasticas illaesa volentes in omnibus observari. In these Certificates, the Bishops, and others, having in some cases authority to certify (as the Chancellor of Oxford, the Custos Spiritualitatis of a vacant See, and the Bishop's Official, and vicar general, ipso in remotis agente) that they make none error; must remember to observe these three things. First, that it be 8 Nova nat. breu. pag. 64. f. expressed therein, that the party against whom they do certify, is excommunicated maiori excommunicatione: because for the lesser excommunication (as happily for companying with an excommunicate person) a man shall not be imprisoned. Secondly, that 9 Ibidem. it be certified, that he was by name and particularly so excommunicated; and not in gross, in company of a multitude (as was often done in elder times) or indefinitely and in generality, as when the BB. excommunicated all, whosoever should violate any part of the great charter. For that excommunication (saith Fitzherbert in that place) must grow upon a special suit against a man either ex officio, or by a party, whereupon a Significavit may be grounded. Thirdly, 1 Reg. in bre. orig. pag 69. b. & notainterlin. pag. 65. b. (if any inferior officer under the Bishop or his Archdeacon, did excommunicate the party certified) yet must the Bishop's Certificate run, 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 law (of necessity) required; I cannot gather out of any place of the Register, or of Fitzherbert's Natura Brevium. It is true, that when the proceeding is upon any of the ten crimes mentioned 2 5. Eliz. ca 23. in the statute, made for that purpose; the particular original cause must be expressed in the certificate. Nevertheless, when the proceeding is upon any other crime of ecclesiastical cognisance, orin matters testamentary, matrimonial, or for tithes etc. whether moved of office, or at the instance of the party; therethe Common law (as it was afore) is retained. Now I find precedents of these writs in the Register, wherein no particular original cause, but only general be expressed; which, as in other certificates of Bishops as touching bastardy, etc. the Court believeth, without further traverse or examination. namely in sundry precedents of this kind of writs, is only contained, 3 Reg. in br. orig. pag. 65. a. 66. a. 69. a. that the party was excommunicated propter suam manifestam contumaciam: but what was the cause original of his conventing, out of which such contumacy grew, is not at all declared; and yet the certificates were allowed to be good in law. Likewise in another precedent of the same writ, though some more particularity be found; yet is it left so generally, as the certain and special cause cannot thereby be known unto the Court, to which it is directed. For it is 4 Ibid. pag. 65. b. certified, that a party 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 do only in generality mention the parties contumacies, and disobediences: so is there also a precedent there, of crimes themselves certified but in a generality, whereupon a writ of excommunica●…o capiendo, was nevertheless awarded. For it is 1 Ibid. pag. 66. b. testified that a Clerk excommunicated propter manifestas offensas suas, was appointed to be attached, and thereupon imprisoned. Notwithstanding this be a special right and liberty of this Church of England; yet is not this writ de excommunicato capiendo always to go forth, and upon every certificate whatsoever of a Bishop, or of other thereunto authorised; albeit the certificate be contrived into never so due form. For if he 2 Reg. in breu. orig. pag. 67. b. & in breu. judic. pag. 39 71. b. & 72. 〈◊〉 s. that did excommunicate, be himself for some supposed contempt to be attached at the suit of the party certified: then shall the execution of the attaching of the party excommunicated be respited, till the other plea of the Ordinaries attaching be determined: lest otherwise the party's suit against the Ordinary should be hindered by his imprisonment. Yet it is 3 Nou. nat. br. pag. 64. & 65. f. to be understood, that a Bishop shall have Significavit upon his own certificate, touching an excommunication for contumacy, incurred even in his predecessors time. But albeit the certificate be duly made, and the writ de excommunicato capiendo be thereupon awarded forth: yet if there be lose or corrupt execution thereof by the Sheriff, or by his under officers; both the endeavour of the Bishop, and care of the Queen to have contemptuous persons iusticed, are wholly frustrated. Though this carelessness in times past were not so common as now it is; yet it 4 Reg. in br. orig. pag. 65. a. seemeth by the Aliâs and Pluriès in the Register, that Sheriffs, and their under officers were then also slack enough, to perform this part of their duty: howbeit it is testified by the Kings writ in this behalf, 5 Ibid. pag. 65. b. that the undue execution of it, redoundeth in contemptum manifestum regis, episcopi damnum non modicum & gravamen, ac juris Ecclesiae suaelaesionem manifestam. In which regard, such a negligent Sheriff is (by law) upon a writ to be called into the Court, whence the writ issued; there to answer such his contempt. The effect of the writ de excommunicato capiendo, (when he hath his due course and execution) is double. First, upon the very certificate of the Bishop, the party excommunicated, is to be debarred action in all the Queen's Courts. Yet if upon an 1 Nou. nat. br. pag. 65. d. appellation by him made from the sentence of excommunication, he be delivered out of prison; or have 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 2 Reg. in br orig. pag. 65. a. & b. party is to be imprisoned by his body. Per corpus suum secundum consuetudinem Angliae, iusticies, donec etc. This iusticing by body according to the custom of England, is committing to prison; and that 3 Westm. 13. Ed. 1. cap. 15. 5. Eliz. cap 23. without bail or mainprize. Nither 4 Nou. nat. br. pag. 66. e. doth the writ de homine replegiando, lie in this case. Now a man being thus in prison, I find in law but two means of his delivery. The first is, by submitting himself to the bishop. This submission may be in two sorts: either by present satisfaction, at or immediately upon his delivery; or by caution put in, that he will hereafter perform it. Quia vicecomes (saith a 5 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 juris, quosdam deliberavit; idcirco etc. where we also see, to what end the caution (by the party excommunicate) must be put in, agreeably to sundry 6 Ibid. pag. 65. b bis 66. b. & 67. a other precedents of this writ, viz. de parendo mandatis ecclesiae, in forma juris. Which is to perform that which the bishop shall reasonably and according to law, enjoin unto him. For it was thought most inconvenient, that he who had resisted the course of law, & contumaciously persisted in excommunication, until his imprisonment; should now be trusted without good security first given, afore his delivery. This clause of those writs in the Register, Fitzherbert 7 Nou. nat. br. pag. 63. c. doth translate thus into French, viz. de estoier & obeier les ordinances & rules de saint esglise. Under the clause in formaiuris, is that other part of submission contained: which is prescribed by the law ecclesiastical in this case of submission and of giving caution; viz. de parendo iuri. This appeareth by that writ in the 8 Reg in br. orig. pag. 66. b. & 67. a Register, where a clerk imprisoned upon the significavit offered caution to his ordinary (the bishop of Elie) de parendo iuri; but yet could not thereupon alone be delivered, for that he expressly refused, to satisfy tam de iniuria ecclesiae illata, quàm de contemptu, as the writ required. This form de contemptu & iniuria, is not only here, but in 9 Reg. in br. orig. pag. 65. a. b. 68 a. other precedents also of this writ observed, as they be recorded in the Register. And in another writ by words more general, yet tending to the same purpose, viz. 1 Ibidem 65. b. ad satisfaciendum Deo & sanctae ecclesiae sufficientem exposuit cautionem. To satisfy God, viz. for his continued contempt of the keys & power of his church: and to satisfy the church, aswell for the evil example and scandal given, as for the needless charges that he had put the officers unto, to bring him to conformity. For it seemeth when a caution was put in only thus: de parendo iuri & mandatis ecclesiae, in forma juris: that by reason of the general conceiving thereof, sundry took occasion to wrangle & quarrel with that, which was after enjoined unto them, as if it were not contained within the words or meaning of their caution: and therefore that clause that such should satisfy for their contempt, & for the injury to the church, was often used in the king's writs of that nature, to avoid all cavil, and for more full explanation. In such caution, two things beside are required: the one, that it be idonea & sufficiens, as appeareth by all the writs in this behalf, that be set down in the Register: the other, that it be offered by the party, who is to submit himself. For it is 2 Ibid. pag. 66. b. & 67. a. Nou. nat. br. pag. 63. c. said in one of those writs thus, viz. Idem W. cautionem saltem pignoratitiam (juxta intentionem mandati nostri praedicti) de satisfaciendo de huiusmodi contemptu & iniuria, antequam à prisona praedicta deliberetur, offer debet & tenetur. For a caution is not imposed by the Ordinary, but is accepted by him upon the party's submission and offer thereof; when he seeketh to be absolved from the censure, and delivered out of prison. But what may be reckoned to be idonea & sufficiens cautio, I find not determined or colligible out of the books of Common law. One kind thereof which is pignoratitia, a caution real 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 given to understand, that the courts of Common law do take knowledge of some other kinds of cautions besides this, and accounteth of this, as being not of the most grievous sort of cautions unto the party. The word Cautio is a term taken out of the Civil law; for which (at the Common law) they 3 Nou. nat. br. pag. 63. c. use security or obligation etc. therefore what be the several kinds of cautions, must be taken out of that learning. Cautions in Civil law be of three sorts: one is Fideiussoria, as when a man bindeth himself with sureties to perform 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 perform any thing, taketh a corporal oath to do it. By the Civil law, a judge is not bound to accept of this last, unless the party will also swear, that he is not able to put in either of the other. And therefore where Ordinaries do promiscuously at absolutions accept this juratorie caution offered de parendo iuri, & stando mandatis ecelesiae, in forma juris; they do more than they simply need to do; and rather gratify than do any grievance to the party, as some have thought. For seeing this hath been the most usual, nay (for a long time) almost the only caution given at absolutions; that they may lawfully still accept it, is made manifest by statute, viz. saving and reserving to allarchbishops and bishops, and all others having authority to certify any person excommunicated, like authority to accept and receive the submission and satisfaction of the said person so excommunicated, in manner and form heretofore used, and him to absolve and release. etc. 5. Eliz. cap. 23. yet is not any of them so simple, but he will think either of the other two (if they be offered) to be better security than 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: Real security is more safe than personal. Now when such caution is offered as the Ordinary doth accept of, for the party's performance of that which shall be enjoined unto him: shall he needs be forced to send for a writ of deliverance unto the Chancery? No verily. For the bishop himself, if he will, may enjoin the sheriff to deliver him. Accedas (saith 1 Reg. in br. orig. pag. 66. a. & nou. nat. br. pag. 63. c. d. the writ unto the sheriff) in propria persona ad episcopum, & ex part nostra moneas & efficaciter indicas, ut accepta cautione praedicta, ipsum mandet deliberari à prisona. And again, a writ to a bishop runneth thus: Mandamus quòd accepta cautione praedicta, ipsum deliberari mandetis, alioquin quòd nostri est in hac part exequemur. And therefore Fitzherbert 2 Nou. nat. br. pag. 63. g. sayeth plainly, that the bishop, or he at whose certificate the party was taken, may command the sheriff to deliver him out of prison. But what if the Ordinary shall refuse to admit of the caution offered, and thereupon to release him, albeit the caution be good and sufficient: shall the party remain still in prison? Nay, the writ de cautione admittenda, is provided for remedy in such a case. This not deliverance, after sufficient caution offered, may happen either upon negligence & delay in the bishop's under-officers; or upon his own wilfulness. Upon such under-officers delay; as when the bishop willeth them to absolve the party excommunicated: in which case 1 Reg. in br. orig. pag. 65. b. Nou. nat. breu. pag. 63. f. the sheriff is not to make deliverance, till it appear unto him, that the party is (indeed) absolved. Neither is 2 Ibidem. such official or archdeacon bound to certify the sheriff, that they have received letters from the bishop to absolve him: but the sheriff ought to go or sen to them, to know the truth, and accordingly to make deliverance. If it happen upon the bishops own wilfulness; in such case I find two degrees observed in proceeding: for first 3 Reg. pag. 66. a. Nou. nat. breu. pag. 63. d. there goeth a writ to the bishop himself, that he admit of the caution, and also that he command the party imprisoned to be delivered; or else the king will do that which appertaineth to him, in like case to be done. But if this will not serve the turn, than secondly may the party have a 4 Reg. in br. orig. pag. 66. a. Nou. nat. breu. pag. 63. d. writ directed to the sheriff: that in his own person he repair to the bishop, and on the Queen's behalf monish him, and effectually require him; that taking first such caution, he command the prisoners deliverance: and that if he shall refuse in the sheriffs presence to do it, than the sheriff himself (taking 5 Reg. pag. 67. a. such sufficient caution of him) do deliver him. And if the sheriff also shall appear to be negligent or wilful; the 6 Reg. 66. a. party may have the like writ to the Coroners. But they must likewise first (before they deliver him) take sufficient caution of him, viz. de parendo mandatis ecclesiae in forma juris: & de satisfaciendo tam de contemptu, quàm de iniuria ecclesiae illata. If the sheriff be too forward, so that the bishop feareth that he will deliver the 7 Nou. nat. br. pag. 63. & 64. h. Reg. pag. 66. b. & 67. prisoner by colour of some writ, without taking such caution, as may be judged sufficient; then may the bishop purchase a writ to the sheriff, that in no case the prisoner be delivered; except in his presence, he offer to the bishop cautionem saltem pignoratitiam; at the least a gage or real caution, de satiffaciendo, etc. But if the Sheriff shall in deed deliver him out of prison without such sufficient caution (which in the 1 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 juris) then must a Writ go forth out of the Chancery, for the new attaching of the prisoner; containing also a Venire facias for the Sheriff; that he do appear and answer his contempt. For such his dealing, is there said to be, In laesionem libertatis ecclesiae, & contemptum manifestum regis. Thus much touching the first means of deliverance of a person excommunicated out of prison. The other mean for deliverance of such excommunicate person out of prison, is when he hath appealed to a superior ecclesiastical judge, from the sentence of excommunication given against him; as unjust, or as void and erroneous. For if he rest in the sentence given, then must he needs submit himself, and offer caution, as afore is said. But if he hold himself to be unjustly dealt with, and therefore will not submit: then ought he not to be enlarged out of prison, but upon Appellation made to the superior Ecclesiastical judge, who is the only competent and able judge (in that behalf) to determine; whether he have been duly proceeded with, and rightfully excommunicated, juxta canonicas sanctiones, or not: as 2 Reg. pag. 69. b. & 70. a & b. Nou. nat. br. pag. 64. c. appeareth by sundry of these Writes in the Register, and otherwise. The reasons why such one is not to be detained in prison that hath appealed from the sentence of excommunication, are first, because upon the Appellation, the judge from whom it was made, doth thereby cease to be his judge in that cause. secondly, for 3 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 given, for the doubtfulness that is in the mean time of the validity or invalidity of it. thirdly, by reason that where the presence of the judge to whom the Appellation is made, may be had: there the party Appellant is (for the time) usually absolved and released from the excommunication. lastly, lest by his imprisonment he be hindered from the effectual prosecution of his Appeal, which may happen prove to have been just. If allegation be made to the court in his behalf, against whom the writ de excommunicato capiendo, is awarded and gone forth, that he hath appealed: and yet it do not authentically so appear by public instrument there showed; yea (for the most part) even where such public instrument hath been showed: a 1 Reg. 69. b. 70. a. & b. Nou. nat. br. pag. 65. b. c. writ of Scire fasias first goeth forth to the Sheriff, that he do 2 Reg. pag. 70. b. warn the Bishop, and him who did prosecute the party imprisoned; to come into the court, and there to show cause why the Sheriff should not surcease from attaching him, or deliver him if he be afore in prison, whiles the matter of the Appellation dependeth. In the same Writ also (for the most part) is contained, that the party (if he be taken) either shall be brought 3 Reg. pag. 69. & 70. Nou. nat. br. pag. 65. c. up into the Chancery, under sure and safe guard, or else shall find sufficient mainpernors that shall undertake for him body for body, for his personal appearance in court at the day prefixed; also that he shall prosecute his Appeal, and that he shall receive and endure what the court shall think good to order him unto; yea 4 Reg. pag. 70. b. that his mainpernors shall safely even redeliver him again to the prison where he was; if it shall happen that the court shall so order it. Now if the Bishop, when the proceeding was of Office, or the party at whose instance it was; do 5 Reg. pag. 70. a. not come upon the Scire facias served at the day prefixed, or at furthest quarto die pòst, (unto which day the custom of the Chancery is to continue the Process) then is the party to be delivered out of prison; so that it do first appear by public instrument that he hath in deed appealed. But if the Bishop 6 Reg. pag. 70. b. Nat. br. pag. 65. e. and he that prosecuted, either by themselves or by their Attorney, do come at the day prefixed; and he that was imprisoned or his mainepernours do not come: then a Writ for the reattachment of the excommunicated person goeth forth to imprison him; until he satisfy tam de contemptu, quàm de iniuria ecclesiae illata. And likewise an Attachment for his mainpernors, to be brought into the court to satisfy the King, the Bishop, and him that prosecuted; and to receive what the court shall further consider. And this course of Scire facias before the party be delivered, doth seem chiefly to be observed; when there may be doubt made, that some cause may be alleged (by those who have interest) why he should not be delivered. If no such doubt may be made, and when by very 1 Nou. nat. br. pag. 64. e. authentical public instruments (showed forth in court) his appellation evidently appeareth; there sometimes without any Scire facias first awarded, a Supersedeas is directed forth unto the Sheriff. 2 Ibid. & Nota interlin. in Reg. pag. 68 b. Nevertheless (in this case) the party must within the year of his Appeal, by witnesses or oath; prove his diligence in prosecuting his Appeal with effect. For there are precedents of such Writs in the Register, where no Scire facias before the Supersedeas went forth, for any thing that there appeareth, viz. Quia C. appellavit A. 3 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 breve nostrum via praecludatur, quominus dictae appellationis suae negotium prosequi possit in forma juris, etc. maximè cùm appellantium status debet esse integer, ideo pendente appellatione supersedeas, etc. And thus far of the second means of delivering an excommunicated person out of prison. But more or other means then these two, (for my part) I have not hitherto found mentioned in any Statute, or any report of the Common law; though I have carefully sought for them. Now I will resume again (after this long, but I trust not unnecessary digression) the second member of ecclesiastical jurisdiction; called contentiosa jurisdictio. That is, when such matters be handled; against which some party standeth, or is dealt with thereby against his will. If it be contentiosae jurisdictionis, whether it be for a right there demandable and determinable, or else for a crime there punishable, (which are the heads of all litigious jurisdiction ecclesiastical) it cannot be intended, that parsrea, is contra quem res agitur, the party to be dealt against, will gratis without process appear, & from time to time attend: except it hap sometimes by collusion with the plaintiff. And in this respect (amongst others) it is said, that judicium redditur in invitum: & Reus is called pars fugiens, the party presumed to come thither against his will, and willing enough to be gone if he might. Therefore if any cause, besides those two, shall be proved such, as the Ordinary may lawfully deal in; it will follow, that in such a matter also he may use a citation to call him. Dato enim principali, necessaria adiacentia veniunt in consequentiam. But that an Ordinary may deal in sundry other causes besides these two, it shall appear both by Statutes (which are the judgements of the whole Realm) and by the judgements and uncontrolled opinions reported in the books of the Common law. In discourse whereof will appear not only 1 Aristot. in lib. post:. Analyt. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, that the matter is so, but also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, the reason why, and in what manner and sort it is determinable or punishable there: being three principal questions to be opened, for the perfect knowledge of anything that is to be handled: and serving in these controversies, to some further use and profit, which may lighten you in the length of the disputation. Pursuing therefore the two former heads of that part of Ecclesiastical jurisdiction: first the matters by litigious jurisdiction demandable and determinable, are either such as are yielded to be mere Ecclesiastical (by the authors of this opinion) viz. Testamentary and Matrimonial: to the first whereof (for affinity sake) I add last Wills, (such as may not be termed Testaments,) Codicils, Legacies, Administrations, & Sequestrations of the deads' goods, (commonly called letter's ad colligendum:) and to the later, I join divorces, iactitation of Matrimony, questions of legitimation or bastardy, for restitution of a man's wife taken away, that a man shall receive his wife again, and suits for goods or chattels promised with a woman in marriage: or else they are such others (claimed to be Ecclesiastical) as remain still (by this opinion) in controversy. All which (I think) may be comprehended under the general term of reliqua iura Ecclesiastica. And these are either some duty arising at first upon exercise of voluntary jurisdiction, and yet by denial made litigious: & such be real compositions sought by some party to be disannulled, procurations, pensions, Synodals, Pentecostals, indemnities, fees for probates, etc. or growing due only upon exercise of litigious jurisdiction: & these are either due to the judge himself (as fees of citations, fees of sentences, etc.) or are due to others attendants in the Court, (as fees of Advocates, Proctors, Registers, Apparitors, etc.) or else they are such as are due to Ministers in the Church, that have no title, as wages for a Curate, or a Clerk, or unto 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 Clerk: or concerneth the whole title and interest in and to his benefice, or else toucheth but his maintenance and living. His interest and title tendeth either to attain it when he pretendeth just title to it, or to retain it being in his possession, or else to recover it being bereaved or spoiled of it. The duties which concern Ministers maintenance, are tithes of all kinds, Oblations, Obuentions, Pensions, Mortuaries, Churchyard or place of burial, etc. Or lastly, it is something, that is due to a whole Parish, as to have a Chaplain found, or divine service, or Sacraments administered amongst them, or something due to their Church to be delivered, or for a Parishioner to be contributory with the rest to reparations of the Church, to seats, to bells, to the buying of books, of Vtensiles, or of other ornaments, and requisites in the Church. Concerning crimes & offences claimed to be punishable by jurisdiction Ecclesiastical: they may all (I think) be reduced to some of the three heads, touched by S. Paul: viz. as being contrary either to Piety unto God, to justice towards our neighbour, or Sobriety towards ourselves. That which is against God; the Latinists call by the name of Impietas; that which is against a man's neighbour, they term Facinus; and that which a man designeth against himself, Flagitium. albeit the two last be often confounded, without any curious observation of such propriety of words. Against Piety to God-wardes, are these: blsasphemie, swearing, idolatry, heresy, error in faith, schism, apostasy from Christianity, not frequenting public prayer, neglect of the Sacraments, perjury in an Ecclesiastical Court or matter, disturbance of divine service, utolating and profaning the Sabbath, and such like. Contrary to justice are these: Simony, usury, diffamation, subornation of perjury in a Court Ecclesiastical: violence to a Minister, sacrilege, dilapidations, not building of a Church enjoined by atestatour; not fencing the Churchyard; not repairing a Church or Chancel, or not keeping of it in comely sort; or when a Churchwarden refuseth to yield an account of the Church stock, & goods; & violating of a sequestration made for tithes not paid; hindering to gather or carry tithes; money promised for redeeming corporal penance, and detained; contempt to the ecclesiastical jurisdiction, fight or brawling in Church or Churchyard, and such like. And against Sobriety are these: all Incontinency (not made death by the law of the Realm) whether committed with one which is of his kindred in blood, forbidden either in generality, or by some of the degrees Levitical, or with one of his alliance so forbidden, both which are called incest: or committed by such whereof the one is married, which is adultery: or where the one of them hath been married, termed by some stuprum: or where both be single, termed simplex fornicatio: or whether it be marrying of two wines, or being married unto two husbands at once, which is called Polygamy: Solicitation of a woman's chastitte, drunkenness, filthy speech, and such others. There be also certain punishments and censures (besides these) which I think will be yielded to be matters of ecclesiastical jurisdiction, as enjoining of penance; suspension from entrance into the Church, or from the lords supper, or from execution of a ministers office, or from his benefice; sequestration of a benefice; interdiction of some place, from having service or sacraments there administered; interdiction of some certain act, (as not to marry, whiles a suit matrimonial dependeth) and excommunication, the less and the greater. I do also find in writers of the Civil and Ecclesiastical laws, certain offences affirmed to be of ecclesiastical conusance: which may seem (even in this Realm) to be such, albeit I do not expressly read them to be so accounted, in statutes or reports of the Common laws. As for violation or perturbation of liberties ecclesiastical: for admitting of excommunicated persons, unto Quaere of these two first named: & see for the first Lyndwood e. oecernae. de poenis. verbo regis Angliae. action or testimony in a temporal Court: forging of letters and matters ecclesiastical, as testimonials for ordaining &c. or using and putting them in practice wittingly: burying excommunicate persons, or notorious heretics in the usual places of good Christians: abettors and voluntary company keepers with persons excommunicate: and diggers up of corpses buried. CHAP. III. That matters in the former Chapter adjoined to testamentary and matrimonial causes (though properly they be not of testament or matrimony) are of ecclesiastical conusance, and how far. TOuching such as I have adjoined for necerenesse of quality, unto matters testamentary: First a man's last will, (whereby legacies be given, but none is therein made executor) cannot be called a testament. The like is to be said of a codicil: and a legacy though it be given by testament, yet may it also be given 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 suit for a legacy, neither the testament cometh directly and principally to be proved, nor yet to be impugned. But much less may administrations and letters ad colligendum, be properly accounted matters testamentary, because they are committed, when a man dieth intestate, or per viam intestati. Besides that, the course of granting administrations was not at the common law, but came in by statute, long after this writ of Prohibition 31. Ed. 3. cap. 11. (whence this controversy springeth) is pretended to have been framed. As for divorce (which by like reason I joined with matters of matrimony) because it tendeth to the overthrow and dissolution of marriage; it cannot be termed (properly) a matter of matrimony: (though no man can be divorced but he which hath been married) no more than blindness may be called seeing, for that nothing can truly and properly be said to be blind, but such as either once did see, or by nature of the thing, should have eyes: Privatio enins praesupponit habitum. This appeareth also by 24. H. 8. ca 12. a statute; where divorce is contredivided and reckoned as a divers suit from a cause of matrimony. Likewise iactitation of marriage, because it tendeth (by the intention of him that bringeth the suit) to be cleared of a matrimony or contract matrimonial, that is pretended by the other party; it can no more properly than the former, be called a matter of matrimony. As for goods or chattels that are promised with a woman in marriage, who seethe not, that it is a mere circumstance, nothing touching the validity or invalidity of a matrimony? yet nevertheless (I take it) no man is so wedded to his opinion, that he will deny the cognisance of these matters to belong to the ecclesiastial jurisdiction, aswell as causes properly termed testamentary or matrimonial. But I purpose to make the matter a little more plain, and withal to show, aswell when and how some matters testamentary themselves, as the rest annexed to testamentary or matrimonial causes (which I find touched in the laws of the realm) do belong to the cognisance of an ecclesiastical Court, & when and how unto a temporal Court; beginning first with testaments. 1 M. 2. H. 3. Fitz. testa. 4. These are to be proved before Ordinaries, saving in certain places, where the lord in his temporal Court (by custom) proves the testaments of his tenants. The Canon law doth not permit an Ecclesiastical person to declare his will, and to dispose of such goods as he hath gotten by reason of his ecclesiastical promotions as he list: but they must be left to that Church, by which he got them. But 2 Treatise of Const. prou. & legatine, printed by Thomas Godfrey tempore H. 8. cap. 13. the law of this Realm is, that Clerks may make their wills as liberally and freely, as any Lay man may: and that though they have them, for their spiritual ministration. And therefore by reason of this contradiction and repugnancy to the Common law, such Canons are here of no force, nor in practice. Touching executors, it is sometimes to be determined by the Common law, in what cases, and who may be made an executor: for a 3 T. 12. H. 7. sol. 22. woman (by the Common law) may make her husband executor of such things whereof she was executor to another before, or of a duty due unto her before co●…erture, or of rent being behind, upon a lease made unto her for term of life, or of a lease, or of any thing whereof the possession must be attained by action: but she cannot make him executor of that which she hath in possession. for by the very entermariage, the property is in her husband: albeit, by the Spiritual law, aswell in the one case as in the other, she may make her husband executor: 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 judge what is their law. And if a man 4 T. 12. H. 7. be condemned in costs in a court ecclesiastical, & after die, making an executor (by the opinion of King smell) it is as good reason to sue the executor in a spiritual cause, according to the Spiritual Law, as to sue him for a temporal matter in the Temporal Law. Else (saith he) when an amends is adjudged in a Spiritual court, and the party dieth, the either should be without remedy, which were no reason: and none did gainsay it. But a 1 H. 6. H. 3. referent Fitzh. tit. prohib. 17. man may not sue an executor in a Spiritual Court, for the testators debt: albeit if the testator enjoin the executor to pay the debt to him, he may then sue for it in Court Spiritual, because of the injunction and promise. And this showeth how an Executor may be sued or not sued in an Ecclesiastical Court. Now an Executor may sue another in a Spiritual Court touching his testatours goods, in this case, viz. If a 2 T. 4. H. 3 referent Fitzh. tit. prohib. nu. man devise or bequeath corn growing, or goods, unto one, and a stranger will not suffer the executor to perform the testament for this legacy, he shall sue the stranger for it, in a Spiritual Court. But if a man take from the executors, goods bequeathed: for this, the executor must use his action of trespass, and not sue in the Spiritual Court: for 3 2. R. 3. 17. executors can not sue for the goods of their testator in a Court Ecclesiastical, but at the Common Law. If 4 T. 18. Ed. 2. testa. 6. a testament bear date at Cane in Normandy, and be proved in England, the executor may upon such testament have action. Of legacies or devices it will be sufficient to touch a few points. In the books of the Common Law it is set down, that they 5 37. H. 6. pag. 9 shallbe recovered in a Spiritual Court, and not in a Court Temporal. Therefore 6 H. 8. H. 3. ex Fitzh. tit. prohib. 19 if a termor of certain land bequeath his crop, and die, the Spiritual Court shall hold plea thereof. Likewise, 7 46. E. 3. fol. 32. where one sued in Court Christian, for goods devised by testament, which another claimed by deed of gift, and thereupon brought a prohibition, and showed the deed of gift, and alleged withal, that the defendant was neither executor nor administrator: yet because it was by name of a legacy, it was adjudged to belong to the Spiritual court, by which it was to be determined, and the circumstances to be tried, whether the devise were good or not. And in respect, a man hath such action against the executor for a legacy before the Ecclesiastical judge, therefore the 8 M. 20. E. 4. 9 legatary or devisee may not of his own head, take the goods or chattels devised to himself, out of the possession of the executor. And for this also especially, because 9 T. 2. H. 6. 15. the Law doth not bind that the legacies shall be assigned, paid, or delivered, until the debts of the testator be satisfied and paid: But because 1 Bracton. lib. 5. cap. 16. a frank tenement or inheritance devised, is not demaundable in an Ecclesiastical Court, but in the Temporal: therefore the 2 Perkins tit. devices. legatary (according to the devise) without further assignment or delivery, may enter into them, after the death of the testator. If a man 3 Reg. in br. orig. pag. 48. b. by his testament do bequeath goods to the fabric of a Church: for this legacy the executors may be sued in court Ecclesiastical. Also, if 4 Liberties of the Clergy, by the Laws of the Realm, by john Gooddall. Printed by Rob. wire, tempore Hen. 8. wardship or chattels real (as a lease) be bequeathed by will; a man may sue for them in the Court Ecclesiastical, but not so for lands devised. If a 5 Ibidem. testator by his testament doth charge his executors to pay his debts: the creditors (in respect of such charge) may sue for them in the Court Ecclesiastical. When a 6 Ibidem. man (as I do interpret it, being executor or legatary, and so enjoined by will) doth refuse to collate or erect a Grammar School, and is therefore sued in a Court Ecclesiastical, if he purchase a prohibition: the other party shall have a consultation. Touching committing of administrations, by the very statute whereby they were established it is enacted, that 7 31. Ed. 3. ca 11. where a man dieth intestate, the Ordinaries shall depute the next and most lawful friends of the dead person intestate, to administer his goods: which deputies, as they have action against others in the King's Court, for to recover 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 executors be, in the case of testament etc. And 8 36. H. 6. 31. referent Perk. tit. testa. when such letters of administration be showed under the Ordinaries seal, or when a testament is so showed, a man hath no direct traverse against it, in the Temporal Court. That to sequester the goods of an intestate, commonly called letter's ad colligendum, belongeth to the Ordinary, appeareth by this case: If an 9 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 trespass at the Common law, though the sequestration be a spiritual act, because he had possession: yet he cannot have an action of debt, albeit actions of debt in this case run against him. But if the Ordinary do sequester the goods (ex officio, or for any contumacy) which giveth no possession to him, there the Spiritual Court shall have jurisdiction. That divorces are of Spiritual jurisdiction, is apparent by many books at the Common Law, needless to be rehearsed: but whereas prohibition 1 12. H. 7. 24. lay in Corbets case upon a suit brought in the Spiritual court, to repeal a divorce, and consequently to make the issue of the second wife bastards, whereupon no Consultation would be granted (which may therefore seem to make this point doubtful) it was not, for that the Court Ecclesiastical might not hold plea of divorces: but the prohibition lay, because the title and descent were comprised in the libel: and this was agreed to be the cause, by the Court: and so it is 2 Brooke tit. prohib. nu. 9 reported by Brooke. And if a man give goods in 3 T. 13. H. 3. referent Fitzh. tit. Prohib. nu. 21. marriage with a woman unto the husband, if they be afterward divorced, it was holden, that the woman divorced may well sue for those goods in Court Christian. But if any further doubt should (herein) upon the former case of Corbet remain: That statute which 4 24. H. 8. ca 12. affirmeth, that divorces (by appellation) were carried forth of this Realm unto Rome, like as other causes Ecclesiastical of testament, of matrimony, of right of tithes, oblations, and obuentions, and appointeth how delegates (upon such appellations made) shall determine them all within the Realm, doth put it clear out of doubt. Likewise where it is affirmed by a far elder statute, that Ordinaries are 5 18. Ed. 3. pro Clero cap. 2. both to certify and try of bastardy and bigamy, which (for the most part) cannot be done, without the conusance of divorces, whereupon the former (especially) doth depend. As for 6 Regist. in bre. iudicialibus. pag. 5. a. & 26. a. questions touching Bastardy or Legitimation of any, it appeareth that at the Common Law, they do belong to a court Ecclesiastical; and upon a writ, are to be certified into the Queen's Courts, by the Bishop. If 7 Regist. in bre. iudic. pag. 53. 2. a man be spoiled of the possession of his wife: so far forth as the Action doth but extend to be restored to her possession; it must be handled in a Court Ecclesiastical: notwithstanding ( 8 Goodall, of the liberties of the Clergy, by the Laws of the Realm. sayeth Gooddall in the Book aforesaid) that a man for his wife only, may have Action of trespass at the Common Law; and also a writ, de uxore abducta cum bonis viri. Also for a man that liveth asunder from his wife, there lieth Action in a Court Ecclesiastical, for him to receive her again and to cohabite with her; as may be gathered by 9 13. Ed. 1. c. 34. that statute of Westminster the second; where it is provided; that a woman eloped from her husband, shall lose her dower: except the husband (without compulsion Ecclesiastical) do receive her again. Therefore for a man to receive his wife again, compulsion Eccles. may (in some case) be used, with allowance of the statutes of this Realm. Lastly, it remaineth to show here when, and how, goods and chattels promised with a woman in marriage (after the marriage accomplished) be demandable and determinable in the Court Ecclesiastical. For beside one or two cases afore rehearsed, where (by the way) so much is implied, it appeareth by many consonant judgements in the very point. For if a 1 22. Assisatum fol. 70. per Thorpe cui concordat M 16. H. 3. per Fitzh. proh. 22. contract be made between two men, that if the one will take to wife the others daughter, than he will give him ten pounds: In this case, if the money be to be demanded, it shall be demanded in the king's Court: because he did not promise the money with his daughter in marriage, but by way of covenant, that he should marry his daughter. But if he had promised the money with his daughter in marriage, than it should have been demanded in Court Christian. Likewise 2 14. Ed. 4. 6. in an action of debt, the plaintiff declared, that he had married the daughter of the defendant, and that he should have twenty pounds in respect thereof: and by agreement of all the justices of the Common Pleas, without any answer of the defendant, it was decreed that the plaintiff should have nothing upon his writ, because it is determinable in a Court Christian, and is of the same nature, as the very marriage is. So doth 3 Reg. fol. 46. & 48. per Brook tit. prohib. Brooke also collect out of the Register, that for marriage money and pensions, the suit lieth in the Spiritual Court: and agreeable to the former distinction of Thorpe, Fitzherbert 4 Fitzh. no. na. br. tit. proh. fol. also reporteth it in his Novanatura brevium. Bracton in like manner affirmeth it, 5 Bracton. lib. 5. cap. 16. and yieldeth a reason thereof: for he (speaking of Ecclesiastical jurisdiction) saith thus: Sic de rebus datis vel promissis ob causam matrimonij principaliter: & sic de rebus quae accidunt matrimonio, ut sipe cunia promissa fuerit ob causam matrimonij: quia eiusdem juris, id est jurisdictionis, esse debet accessorium, cuius est principale. And albeit Brook 6 Brook t. t. iutisdict. in his abridgement report, that the same was also elsewhere holden by 7 17. E. 4. fol. 4. three, viz. Chocke, Townesend and Littleton: yet he himself seemeth to doubt of it, and saith there is also great 8 37. H. 6. fol. 9 opinions against it, because there is quid pro quo, and therefore likely to be determinable in a Temporal Court. Therefore it may probably be thought that these opinions which he speaketh of in this behalf 37. Hen. 6. either were meant in such a case, as grew to a lay contract, such as Thorpe speaketh of in the book of Assizes (afore alleged) or else there was some covenant for the money, by deed. For 1 45. E. 3. fol. 24. per Br, iurisdict. 11. in an Action of debt brought upon a covenant by deed, that if the plaintiff should marry the defendants daughter, the defendant should give him an hundred pounds, which condition of marriage the plaintiff had performed: it was adjudged, that (notwithstanding Articuli Cleri) the matter did belong to the Temporal Court, because it was by deed: but it had not belonged to it, but to the Court Ecclesiastical, if it had been without deed. And the rather may it be thought, because this hath been taken for Law both afore and since; notwithstanding those opinions mentioned by Brooke. First in the 2 Reg. in Br. orig. pag. 46. b. Register we find to this effect, a certain woman in consideration of Matrimony to be contracted with her daughter promised 40. marks: the Matrimony was accordingly celebrated: the woman dieth, making executors. Then for not payment thereof the husband bringeth his Action in the Court Ecclesiastical: the executors obtain a prohibition: whereupon, the matter coming to scanning; a Consultation is nevertheless granted; whereby is affirmed, that the Ecclesiastical Court may lawfully proceed therein. Yea, and long after these opinions delivered, Fitzherbert affirmeth, that such suit belongeth to the Court Ecclesiastical, as hath been alleged. And so doth the little Treatise of the liberties of the Clergy, by the Laws of the Realm, in these 3 Goodall, of the liberties of the Clergy. words, viz. If he that promised money with his daughter in marriage, dieth: he that married her, may sue the executors for the money, in the Spiritual Courts. There is in the said little Treatise, another case touched & affirmed to be of Ecclesiastical cognisance; which belongeth to this Chapter. It is 4 Ibidem. this: If a man (saith he) give goods with his daughter in marriage, and after there is a Divorce: the same may sue for those goods in Ecclesiastical Court. But he showeth not whether upon any Divorce whatsoever, the goods be there recoverable, viz. whether, aswell when the Divorce arose of the woman's adultery; as when it grew upon some consanguinity or other Canonical impediment, found out after marriage. Hitherto concerning those kinds of jurisdiction Ecclesiastical, which I adjoined to causes Testamentary and Matrimonial. CHAP. FOUR General proofs out of Statutes, that sundry other causes besides Testamentary or Matrimonial, are of Ecclesiastical conusance. BEfore I proceed further to show (in particular) what matters besides be of Ecclesiastical cognisance and jurisdiction, and how far; I hold it nothing amiss to show (in some generality) first; that there are some other such, which be neither Testamentary nor Matrimonial, nor yet any way depending, or of affinity to them. The Great Charter (to the observation and propugnation whereof, the King and the great Nobles and Officers were wont to be sworn) layeth this groundwork of all which followeth: We have granted to God, and by this our present 1 Mag. Chart. cap. 1. Charter confirmed, for us and our heirs for evermore; that the Church of England shallbe free, and shall have all her whole rights and liberties inviolable. But that the Church had these rights and liberties then, (which are now claimed) the Acts of Courts 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 downward (till these late challenges) do make it very manifest. It is provided by Statute; that 2 24. Edw. 1. stat. de consultation. the Chancellor or chief justicer of the King, upon sight of the libel whereupon any prohibition is brought (if the case cannot be redressed by any writ out of the Chancery, but that the Spiritual Court ought to determine the matter) shall write to the judges (where the cause was first moved) to proceed; the prohibition directed, notwithstanding. So that, wherein soever (by custom and liberties of Holy Church) judges Ecclesiastical were wont to proceed; if no Writ lie thereupon in Chancery, they may still hold plea, and take conusance. Also in the conclusion of the Statute of Articuli 1 Artic. Cleri. 9 Ed. 2. ca 16. Cleri, where sundry matters besides Testamentary and Matrimonial are mentioned, it is thus enacted: that the Prelates, Clergy, and their successors, shall use, execute, and practise for evermore, the jurisdiction of the Church, in the premises; after the tenor of the answers aforesaid, without quarrel, inquieting, or vexation of our heirs, or any of our Officers, whatsoever they be. Likewise it is by Parliament 2 15. Ed. 3. ca 6. accorded, that the Ministers of holy Church, for money taken for redemption of corporal penance, nor for proof and account of Testaments, or for travail taken about the same, nor for solemnity of marriage, nor for other things touching the jurisdiction of the Church, shall not be impeached nor arrested, nor driven to make answer before the King's justices, nor other Ministers: and thereupon shall have Writs in the Chancery, when they will demand. Where we find, that other things besides Commutations, matters Testamentary and Matrimonial, do belong to the jurisdiction of the Church. And to like effect after, in the same King's days: 3 18. Edw. 3. pro Clero. c 6. Commissions to inquire of judges of Holy Church, whether they made just Process or excessive, in causes Testamentary and others, which notoriously pertain to the cognisance of Holy Church, were from thenceforth forbidden. Therefore, these Statutes being still in force, if judges Ecclesiastical shall be found but to deal as they ought, in matters appertaining merely to jurisdiction Ecclesiastical; how the vexations, impeachments, driving to answer, and strange inquiries against them, (used in some places) may be justified by Law; is worthy the consideration of those, that are, or shall be procurers therein. In a statute of King 4 1. Ric. 2. ca 13. Richard the second, mention is made, that the pursuits for Tithes, and for some other causes, of right aught, and of old times were wont, to pertain to the Spiritual Court. In a Statute of King Henry the eight it is 5 24. H. 8. c. 12. in the praeamb. testified, that both the authorities and jurisdictions Spiritual and Temporal, do conjoin together in the due administration of justice, the one to help the other: And that the Laws Temporal are for trial of property of lands, and goods, and for the conservation of the people of this Realm in unity and peace, without ravine and spoil. And in the body of the Statute are particularly named and reckoned for Ecclesiastical, (besides causes Testamentary and Matrimonial,) these, viz. divorces, right of tithes, oblations, and obuentions, of which it is affirmed, that the knowledge of these causes by the goodness of Princes of this Realm, and by the Laws and customs of the same, appertaineth to the Spiritual jurisdiction of this Realm. And because by that Statute, remedy was only provided, that appellations in those aforesaid cases should not be prosecuted out of the Realm: (there being also many other causes of jurisdiction Ecclesiastical, wherein a like remedy was convenient to be had) therefore the next year after it was enacted, that 1 25. H. 8. c. 19 all manner of appeals, of what nature or condition soever they be, or what cause or matter soever they concern, shall be made and had by the parties grieved, etc. after such manner, as is limited for causes of appeals, in matters Testamentary, Matrimonial, tithes, etc. in the said former statute mentioned. In a Statute of King 2 1. Ed. 6. c. 2. Edward the 6. (besides matters of voluntary jurisdiction Ecclesiastical, as collations, presentations, Institutions, inductions, letters of orders and dimissories) are reckoned in general as Ecclesiastical, all suits and causes of instance betwixt party and party, and all causes of correction: And in particular, all causes of bastardy, or bigamy, and enquiry De jure patronatus: besides matters of Testament, of administration, or of accounts upon them. And 3 5. Eliz. c. 23. in one Statute in her majesties reign, are reckoned in particular (as the more grievous sort of matters of correction in Ecclesiastical Courts) heresy, refusing to have a child baptised, or to receive the holy Communion, or to come to divine service, error in matters of religion or doctrine now received, incontinency, usury, Simony, perjury in the ecclesiastical Court, and Idolatry. And therefore judges Ecclesiastical may lawfully cite men, in certain other causes, besides Testamentary or Matrimonial: and ought not (eonomine tantùm) to be vexed, unquieted, impeached, driven to answer, or arrested. CHAP. V That suits for title of Benefices upon Avoidance or Spoliation: likewise that suits for tithes, Oblations, Mortuaries, etc. for Pensions, Procurations, etc. are of Ecclesiastical jurisdiction, is proved by statutes. MAtters and suits for the title of Benefices ecclesiastical (so they touch not the trial of the patronage) do belong also to the knowledge and jurisdiction of a court ecclesiastical, by the laws of the Realm. For cognisance of avoidance of benefices, 1 25. Ed. 3. pro Clero. ca 8. and the discussing thereof, de iure do belong to judges of holy Church, and not to the Lay judge. The Common 2 Treatise of constitu. Prou. & Legatine. ca 9 printed by Tho. Godfrey. tempore H. 8 law doth mention five causes of avoidance of a benefice, viz. death, resignation, deprivation, creation, and session. But whether it may be deemed void in law, upon any of the last four means of avoidance: is by the law ecclesiastical determinable. And by the books of the Common law, 3 M. 22. Edw. 4. fol. 24. whether the Church be full or not full, or the Clerk able or not able, is triable in an ecclesiastical Court. Townesend. For if an 4 Regist. in br. orig. pag. 55. b. inferior Ordinary shall differ or refuse to admit or institute a Clerk presented, and the Clerk bring his double Querele (being of the nature in some sort of an appellation) from the Archbishop's court: and the adverse part do bring a prohibition, the said Clerk may have hereupon his consultation, so that the court eccles. by colour hereof, deal not with the right of patronage of the benefice. Likewise for spoliation of a 5 44. Ed. 3. 33. benefice, a man is to be sued in Court Christian. But this lieth not, but where a Clerk is in, as an incumbent. for if he be in, as an usurper of the Church being full, or as a trespasser, there lieth action of trespass, and not spoliation. But if two 6 38. H. 6. 19 incumbents be in, and the one claimeth by one patron, and the other by another, there lieth no spoliation: but where both claim to be in by one patron, or by means of one patron, then lieth action of spoliation, and not otherwise. For where the right of Aduouson may come in question, there lieth no spoliation, for that cannot go to a Spiritual Court. And again a little after: 7 38. H. 6. 20. Spoliation and debate upon an appropriation, shallbe determined in the Spiritual Court. Touching tithes where they are to be sued, it appeareth by acts of Parliament thus: The 1 13. Ed. 1. ca 5. Westm. 2. plea for tithes shall pass in the court Christian, as far forth as it is derained in the King's court. In the next King's 2 9 Ed. 2. ca 1. Artic. Cleri. days, thus: In tithes, oblations, obuentions, mortuaries, (sithence they are proposed under these names) the King's prohibition shall hold no place. 3 Ibidem cap. 5. And again, the King's prohibition shall not lie for tithes of a Mill, newly erected. Likewise in the days of K. Richard the 2. it is thus 4 1. Ric. 2. ca 13. contained in a statute: The Clergy complain for that the people of holy Church pursuing in the spiritual court for their tithes, and their other causes which of right aught, and of old times were wont to pertain to the spiritual court, and that the judges of holy Church having cognisance in such causes, and other persons thereof meddling (according to the law) be maliciously indited, etc. and by secular power oppressed, and be forced by oaths, obligations, and many undue means compelled to cease utterly, against the liberties & franchises of holy Church: It is enacted, that such obligations made by violence should be void: and the enditors of malice when the enditees be acquit, should incur the pain of those that procure false appeals, etc. Likewise the preamble of a 5 23. H. 8. ca 9 statute in K. Hen. the 8. days doth argue, that matters of tithes are to be heard and determined by judges Ecclesiastical. The same is also proved by that, where in 6 24. H. 8. ca 12. another statute it is said thus: Inconveniences have arisen by reason of appeals out of the Realm to the See of Rome, in causes testamentary, causes of matrimony, and divorces, right of tithes, oblations, and obuentions. And in 7 27. H. 8. ca 20. the preamble of another statute, Deteiners of tithes. pursuing such their detestable enormities and injuries, have attempted in late time passed, to disobey, contemn and despise the process, laws, and decrees of the ecclesiastical courts of this Realm, in more temerous and large manner, then before this time hath been seen. And therefore it 8 Ibidem. was then enacted, that for subtraction of tithes, offerings, and other duties of holy Church, the party grieved, may by due process of the kings. ecclesiastical laws of the Church of England, convent the person offending, before the Ordinary, and also compel him to yield their said duties. And likewise for any his contempt, disobedience, or other misdemeanour, upon complaint to any of the Counsel, or to two justices of the peace, to have him committed, until he shall be bound to give due obedience to the process, proceed, decrees, and sentences of the ecclesiastical court of this Realm. And 1 32, H. 8. ca 7. afterward by another statute of the same King, it is enacted, that for denying to set out tithes, for detaining, withholding, or refusing to pay tithes or offerings, Ordinaries may proceed according to the course and process of the ecclesiastical laws. And in the 2 Ibidem. preamble thereof, it is directly affirmed, that by order of the common laws of this Realm, a man cannot have any due remedy against deteiners of tithes. And the 3 2. Ed. 6. ca 13. like also appeareth by the statute of tithes, made in K. Edward's reign. 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 duties ecclesiastical. For it is enacted, that 4 34. & 35. H. 8. ca 19 for these denied, ecclesiastical persons themselves, may make such process against the person denying, or against the Church charged, as heretofore they have lawfully done, and as by, and according to the laws and statutes of the Realm, they now lawfully may do. And the person convict, (according to the ecclesiastical laws) shall pay to the plaintiff, the things recovered, and his costs. CHAP. VI That suits forright of tithes belong to the ecclesiastical jurisdiction, and how far, is showed out of the books and reports of the common law: so of places of burial and Churchyards, and of Pensions, Mortuaries, Oblations, etc. THe reports of judgements and opinions of the Courts at the Common law (contained in the books of terms and years) called bookcases, and other treatises of that law, are no less plain & pregnant in this matter. An 5 M. 44. Edw. 3. fol. 32. attachment upon a prohibition was sued against a plaintiff in a Court Ecclesiastical, surmising that he did sue there for hay and money, which touched neither matrimony nor testament: but upon showing the libel, which proved, it was for tithes & oblations, a consultation was granted, for the spiritual court to proceed. And 6 M. 22. Ed. 4. fol. 24. & passim alibi. where the right of tithes is in question, it is triable in the Court spiritual. Likewise, 7 38. H. 6. fol. 21. so soon as it appeareth, that the right of tithes comes in debate, the Lay court shall cease, & shallbe out of jurisdiction: quod fuit concessum. The same is testified in the book of Assizes: 1 22. Assis. fol. 75. For if the King's patentee of tithes renewing in a Forest, that is in no Parish (in which case the tithes do belong to the King) have cause to sue any, that aught to yield tithes, and aught to sever them from the nine parts; such suit shall go to the spiritual Court. In the book of Entrees in the precedent of a 2 Prohibition. consultation. 2. consultation granted, it is thus said: In causis de decimis, de testamento, velmatrimonio, quando sub eo nomine proponuntur, prohibitioni Regiae non est locus. And so 3 Bracton lib. 5. cap. 2. Bracton saith: Non pertinet ad judicem secularem cognoscere de ijs quae sunt spiritualibus annexa, sicut de decimis, & alijs Ecclesiae proventibus. 4 Bracton lib. 5. cap. 16. And again afterward: Mutatur quandoque iurisdictio de jurisdictione in jurisdictionem, mutatis rerum nominibus, ut si de Laico catallo fiat spirituale, (ut cùm res fuerint decimatae) fiunt de Laico catallo res spirituales, & sic mutatur iurisdictio secularis in spiritualem. And therefore where it is reported in the book of Assizes, 38. pag. 20. that the Exchequer held plea in matter of tithes betwixt two parsons of Churches, because the one was the King's debtor; it is 5 Brooke tit. juris. 9 said, that neither of the Benches would have done it, and that it was a marvel. It appeareth in the Register by 6 Regist. in br. orig. pag. 45. b. 46. 47. b. 48. b. sundry consultations granted after prohibitions brought, that at the Common law, so declared and confirmed by Articuli cleri, tithes are of ecclesiastical cognisance. And it is alleged 7 Gooddall of the liberties of the Clergy. Regist. pag. 51. a. D. truly out of the Register, that for tithes happening due in time of vacation of a benefice, the judge ecclesiastical may cite ex officio. More particularly, sundry kinds of tithes are there expressed; which by consultations were proved and allowed to belong to the determination of an ecclesiastical Court. As first 8 Reg. pag. 48. b. tithe of wool rising of sheep killed or dead. Again, 9 Reg. pag. 48. a. tithe of calves & lacticiniorun, that is, of milk, butter, & cheese, (as it may be gathered by another consultation) are both due to be paid, and demaundable in a court ecclesiastical. Thirdly, another 10 Reg. pag. 49. a. consultation containeth, not only butter, cheese, & lacticinium, to be due and demandable in court eccles. but also of pannage, that is, tithe of mast, & of colts. To these doth the Treatise of the 11 Gooddall of the liberties of the Clergy, by the laws of the Realm. liberties of the Clergy add tithes for honey, & wax of bees. But why he should say further, that it seemeth all these must be by prescription, as if tithes of all kinds were not ipso iure due, saving when some law doth otherwise specially limit and determine: I must confess, that I can see no seeming, nor yet colourable reason. And not only the party himself who detaineth tithes may be sued, but if he die, his executors may be sued also for them in court ecclesiastical. For so is it 1 Regist. in br. origin. pag. 48. a. & Gooddall ibidem. testified by a Consultation obtained for tithe of Wool, denied by the Testator, and by his executors who brought the prohibition. And the 2 Gooddall ibid. like is testified by the said treatise of the Liberties of the Clergy, touching tithes of Mils. Whereas also for restraint of the malice of divers, a provincial constitution was made by the Bishops of the Province of Canterbury, in their Synod at London, that such as hindered the gathering or carriage of tithes, by due and accustomed ways should be excommunicated ipso facto: It happened that a parson bringing his action in court ecclesiastical upon that constitution; was hindered and stayed by prohibition, suggesting that it was instituted touching debts and chattels, being neither Testamentary nor matrimonial. But the consultation 3 Reg. p. 46. b. & 47. a. & Gooddall of the Liberties of the Clergy. granted, doth signify; that the court ecclesiastical may lawfully proceed in that plea, so far forth as the action reacheth but to the excommunication of the party, by reason of his hindering the Parson to gather and carry tithes, by places due and accustomed, so that the said constitution and suits ecclesiastical thereupon brought, be both allowable. Yet we are to understand, that nevertheless in some cases, the suit for tithes doth not lie in an ecclesiastical court: as for example, where it is otherwise determined by statute. For it is provided, that 4 45. Ed. 3. ca 7. where a man is sued in a court Ecclesiastical for tithes of great trees above 20 years growth, which may serve for timber of ships or houses, the king's prohibition shall lie. But it was 5 Reg. in br. origin. pag. 49. a. in Notabili. Brooke tit. Consultat. 11. agreed in the Parliament at Sarum, that a consultation lieth for Sylva caedua, albeit it renew not year by year. It was also 6 Plowden. 17. Eliz. inter Sobie & Mullins. adjudged in the case betwixt Sobie and Mullins, that of hornebeames, Sallowes, and such like trees, (that are of so base nature that they serve not for building, nor are of any endurance, and serving for fuel and other mean uses) tithes should be paid, not only of the trees themselves, but of their boughs when they are lopped, of what age soever they be. The 7 Ibidem. opinion of the Court in this case then, further also was, that if the tree itself by that statute (being but an affirmance of the Common law afore) be privileged for tithes, as Oak, ash, and such like; that the arms & boughs also of them (being of twenty years growth or above) shall be free likewise. And the reason is added, for they may serve for some use in building. So that here it may be doubted, if trees above twenty years growth, being of a kind privileged and timberable, as Oak, ash, Elm, etc. be of themselves so little, so crooked, or so rotten, as that they can serve for nothing but blocks and fuel, and be also so employed: whether thereof tithes shall be paid, and be demandable in a Court ecclesiastical? For here the reason of that judgement doth cease, because they serve not for any use in building, & cessant ratione, cessat lex. This doubt is also enforced by the opinion 1 T. 11. H. 4. fol. 242. of Askham: who to maintain the prohibition there brought (though the suit in the ecclesiastical court were for great wood) was driven to aver, that they were such great trees as might serve to build an house sufficient for any man's dwelling, according to the custom of the Country. Which allegation of matter in fact had not needed, if only the kind and age of the trees had been to be respected, to maintain the Prohibition. But this question is to be discussed by the reverend and learned judges. I do find a Note in the Register, but not set down by whom nor when, touching immunity of some things, from paying of tithes, to this 2 Nota in Reg. pag. 54. b. effect, viz. Note, that the justices say, that tithes shall not be yielded but of such things as bring profit from year to year, and that by the memory of man; but this is against the Decretals, saith he. Now admitting this report to be true; what might be the reason of such opinion of those that were justices then, is not expressed; & I cannot conjecture. for not only the Decretals & Canon law, but Gods written law, & before that, the law of nature (under which other than such tithes were paid) do seem to be against it: & those justices had not (for any thing I can find) either former written law, or any report of un written law or custom to that effect. And if this should be received for law, as is here in words laid down; then need no tithes be paid of Sylva caedua; yet was it determined in the Parliament at Sarum, that they should: & so 3 Reg. pag. 44. it is at the Common law also. And then neither parsonal tithes, nor tithes of Mils, nor tithes of Liquorice, nor of Saffron heads (being gathered commonly but once in 3. years) nor tithes of corn out of fields that lie fallow & without fruit every other, or every third year; nor tithe calves or lambs falling of such cattle, as do bring forth but every other year, nor tithe of fruit trees, that bear but one year in three. And if tame elephants (for carriage) were used as commonly here as in some other countries (which go with young two or three years together) by like reason no tithe of them neither might at all be demanded, because every of these are such, as bring no profit from year to year. Where also is added, that this yearly profit must have had his continuance by the whole memory of man: hereby would be cut of all tithes of grounds newly stubbed up & turned to good meadow, pasture or arable, from great timber trees. Likewise all tithes of any new sets and commodities; as of sundry roots, artichokes, osiers, woad, rape-seed, hops, French wheat, and such like, being in most places but of late knowledge and small continuance, were wholly taken away. And so were all tithes of grounds lately left dry by the sea, or by fresh waters, or won by the industry of man. The same Note further reporteth, that the justices opinion than was: that for tithes of pit-coles, quarries and other like, by no means a Consultation should be granted: because Parsons took tithe of the blades that grew on the ground over them, & therefore they should not take tithe of the coals. 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 he yieldeth tithe for the beasts that feed in his pasture. But I do not well conceive the truth of that which he here insinuateth: as if Agistment money were to be paid for the herbage of the same beasts, which by their calf, lamb, wool or milk, do bring commodity to the Church. Yet if he mean that tithe of Agistment money is to be paid for barren cattle, though they depasture in the same pasture where fruitful cattle do, & at the same time; then doth he come nearer to the purpose of confuting that reason, which implieth thus much, that several kinds of commodities in one year, arising out of one ground, should yield but one kind of tithe. For if this were true, then where tithe of hay hath been paid, nothing should be yielded for the after-math (commonly being half the value of the hay) though it be depastured with cattle, which bring no commodity to the church: then also might not the vicar of Tenham in Kent, have tithes (as he hath) of the fruit of the great Orchard in Summer, because he had tithe loppings of the trees in Winter, amounting to sundry loads of faggot. And then also should not the Church have tithe fruit of such great young Orchards turned from tillage, as still yield tithe corn, or hay growing under the trees for sundry years together. If to these objections it be said, that there is great diversity; because these examples do in deed import several fruits & commodities to be taken; yet either at divers times of the year, or else arising out of several parts of the ground: for reply I say, that the like may be also said of coalpits & quarries, for so much of the ground above as is digged, beareth at that time neither corn nor grass. And albeit for coals (when men be come to a certain vein and depth) they use to dig sidelong, leaving great pillars to support the earth from falling: yet is it not the self same part of the ground below where they dig, that beareth grass or corn above, and therefore herein no diversity. And with like reason might tithe of the seed of Woad be denied, because tithe of the leaves was afore paid: or tithes of Saffron heads, because tithe Saffron was paid the same year. Yea, if this note were assured law, then should no tithes be paid of any Minerals: as of lead, tin, copper, quicksilver, etc. how it goeth in Cornwall, Devonshire, and at Mendiffe hills in Somerset shire for tin and lead, I have not inquired. but I am assured, that in the Peake in Darbishire, tithe lead is the chiefest part of the Ministers living, in such places where it is gotten. Which I fear me would hardly be yielded (as it hath been by time immemorial) only of pure good will; if the law in that point were against the Ministers. But the discussing and judgement of these doubts, I must refer wholly to the reverend judges, because they do surpass my slender skill. It seemeth also by the book of Entrees, that 1 Tit. Prohibition. a prohibition lieth, where tithes of corn and wood be sued for in an Ecclesiastical Court, if an action of trespass be thereupon depending afore at the Common law. De hoc quaere. 2 38. Ed. 3. fol. 8. Likewise if a man covenant to pay or set out his tithes truly, he must be sued in a Temporal Court upon this act of covenant, and not else where. Furthermore, tithes of corn, etc. may be considered either before they be severed from the nine parts, in which 1 38. Edw. 3. 6. 50. Edwa. 3. 10. 38. Edw. 3. 8. case, if all the corn be carried away (it is said) the suit lieth in a spiritual Court: Or after severance; & then to carry the tithe away, after severance from the nine parts; is said to be a trespass determinable at the Common law. But I find (to mine understanding) great opinion against this: as 2 Bract. lib. 5. cap. 16. first Bracton, where he saith: Cùm res fuerint decimatae, fiunt de Laico catallo res spirituales. For decimare must needs be to tithe and set out from the nine parts. Secondarily the opinion 3 M. 22. Ed. 4. fol. 23. of the whole Court. For upon an action of trespass brought by a Parson against the Vicar, the Vicar justified, that he took them for tithes being severed from the nine parts; and that he and his predecessors, time out of mind, had prescribed them to be due: whereupon the judges (ex officio, without petition of either party) dismissed this plea, unto the Spiritual court; as not pertaining to their jurisdiction. Soluat Apollo. But it seemeth to me, that the 4 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 Ecclesiastical. Upon 5 14. H. 4. 17. corn carried away, whereupon it comes to be tried betwixt two Parsons of Churches, who hath right to the tithes; this trial belongeth to the spiritual Court, and is not upon action of trespass, to be brought to the Common law. And so it was adjudged; albeit that the defendant there said, that his Parsonage was then in lease. But if they 6 39 Ed. 3. 23. 5. H. 5. 10. had joined issue, whether the place whence the sheaves were taken, were in the one Parish or the other, than it should have been tried at the Common law, because 7 Brooke tit. Iurisdict. the bounds of a Parish shall be tried by the Country, as is there said. Yet in a little Treatise 8 An answer to a letter cap. 1. printed by Tho. Godfrey circa 26. H. 8. printed by Thomas Godfrey in K. Henry the eights time, it is testified, that it hath been holden in times past etc. that the division and distinction of parish from parish, is a thing so mere spiritual, that no man may do it but the Clergy. which asseveration though he disallow, if the Clergy claim it by any immediate power given them from God: yet (saith he) of these and of divers other things; it is no doubt, but they have holden plea in times past; rather by a custom and by a sufferance of princes; then for that they be mere spiritual: or that they of the Clergy, had authority so to do, by any immediate power of the law of God. So that he alloweth division and distinction of parishes, to have been (of old) of ecclesiastical conusance; though to be derived from the king's prerogotive royal. And it 1 Prou. constit. aeternae sanctio. de poenis. & ibi Lindwood verb. limitibus paro. chiarum. appeareth by a constitution provincial made in a Synod at Lambhith holden under Boniface then Archbishop of Canterbury, in the year of Christ 1260, that the Clergy then (undoubtedly) held, and so practised, touching limits parochiarum; that they merely belonged to the court ecclesiastical. And Lindwood coming 200 years or thereabout, after him, in his Commentaries or Glosses thereupon; maketh no doubt of it, but only quoteth Canon law for it. If a Parson grant to 2 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 own lands, whereupon I bring mine action of covenant in the Temporal Court; nevertheless I shall not have a prohibition, because I may plead that matter in bar in the ecclesiastical court. Danbie and Chok. But if a rend reserved upon a lease of tithes or offerings, be 3 44. Ed. 3. 32. sued for in a Spiritual court, there lieth a prohibition, for this is a Lay rend: and so Bracton 4 Lib. 5. ca 16. holdeth in the place before alleged agreeable to the statute of Articuli Cleri. It is holden, 5 Regist. fol. 38. that if a Patron having an Indenture to be quit of certain tithes, be sued in a Court Christian for those tithes, he shall have a prohibition. But ask whether (this precedent of the Register notwithstanding) he may not have 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 simoniacal compact against him, that is Patron. For if it be not simoniacal, he may plead this covenant in bar, in a Court ecclesiastical, as well as in the former case. The competency of the Court for suit of tithes, dependeth also much upon the consideration of the parties, that contend for them. For 6 38. Edw. 3. 6. 31. H. 6. 11. 7 in an action of trespass brought at the Common law, the defendant said, that the corn, whereof the plaintiff complaineth, was growing in D. which is parcel of M. where he is Parson, and thereby he claimeth: And because in the plead they were both named Parsons; the opinion of the Court was; that it was out of their jurisdiction. In another 7 Hill. 7. H. 4. fol. 35. per quosdam libros, & 102. per alios. action of trespass brought against a Lay man that claimed by lease from another Parson (notwithstanding that by M. 44. Ed. 3. it was alleged, that the King's Bench in such case shall have jurisdiction, because it is between a Lay man and a Parson, and that by Articuli Cleri (by the contract) transcunt decimae in catalla: yet because it was of tithes, which they might recover in Court Christian, Gascoigne held; that the Temporal court ought to be out of jurisdiction: for (said he) though it had been so done afore, yet it shall not be done so by us here. And of the same opinion was Moil, in another like action of trespass: that, 1 6. Ed. 4. 3. between a Parson and a Fermer of another Parson, action for tithes lies in a Spiritual court, because the Fermer claims the tithes as due to himself during his term, which none gainsaid. But upon the former of these two last cases, Brook 2 Brooke tit. Iurisdict. 82. doth thus collect: that, it thereby appeareth clearly, that upon contention for tithes between a Parson & a Lay servant of another Parson, the Spiritual court shall have jurisdiction. For (saith he) the servant doth claim to the use of his Master, and not to his own use, upon any Lay contract. Yet how this collection may stand together, with other judgements elsewhere reported to be given, may move some doubt: For, in 3 31. H. 6. 11. 1. H. 6. 5. an action of trespass brought by a Parson against the servant of another Parson: the servant justified for tithes of his Master, and thereupon demanded judgement, whether that Court would hold plea thereof: and it was not allowed, because the said defendant was a Lay man. Likewise, 4 6. Edw. 4. 3. it an action of trespass brought by a Vicar for corn, taken by the servant of another Parson, that claimed them as tithes of his Master; and the plaintiff claimed them as tithes due to his Vicarage: it was adjudged by three, that the Court temporal had jurisdiction, because the plaintiff had none action against the servant, in a Court spiritual, at least as is there affirmed. Markham seemeth to be of opinion, that if any 5 38. H. 6. 19 part of right of tithes do come in debate between two Patrons, that there the court Ecclesiastical can not hold plea. And if 6 25. H. 8. ut refert Brook tit. Iurisdict. nu. 95. the Lord of a Manor claim tithes of certain lands in D. to find a Chaplain or Curate in D. therewith, and the Parishioners there claim those tithes likewise for the self same end: It was delivered for law, that the Lay Court should have jurisdiction between them, and not the Spiritual Court. The last cause of drawing an action for spoliation of tithes from a Court ecclesiastical, that I find, is: where the tithes in demand, do amount to a fourth part of the yearly commodity of the whole benefice: because hereby, the right of Patronage, may be touched or prejudiced; which right of Patronage is to be handled in a court Temporal only, and by no means in Ecclesiastical. For so is it testified by 1 Lindwood c. aeternae sanct. V iute-patronatus. const. Prou. de poenis. edita 1260. Lindwood himself, to be the old custom of the Realm; and therefore the Common law of the land. But in another place he seemeth to be of opinion, that (this notwithstanding) no prejudice towards the Patronage can grow, though the suit for all the whole tithes and oblations should be prosecuted in court Ecclesiastical. For (saith he) 2 Lindwood in verbo quarta pars bonorum. c. 2. Prou. const. de foro competenti. the right of Patronage is founded upon 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 coming to the Church, but rather the building of it, the ground whereon it is situate, or the endowment (as of glebe etc.) assigned unto it. This he writeth saluo judicio meliori: and under the same reservation, I do hold, that where a great part of tithes is (by suit) evicted from one Church unto another; the very patronage itself is much prejudiced and endamaged. For if the Patron happen to sell it, the less value the benefice is of, the less recompense shall he have for it. Besides, if 3 Stat. circumspectè agatis. a pension be assigned out of the benefice unto the Patron (as it may be 4 Lindwood, ubi supra. V pensionem. upon the foundation) the more the benefice is impaired, the more hard will the pension be to recover. Lastly, for somuch as the Clerk presented is (by law) bond to relieve his Patron fallen in decay: in this respect, great prejudice groweth to the Patron, when a fourth or greater part of the benefice is evicted. That which Markham held (as is aforesaid) viz. that if any part of right of tithes do come in debate betwixt two Patrons, there the Court ecclesiastical could not hold plea: seemeth to be borrowed from a consultation in the 5 Reg. pag. 46. a. Register in these words, viz. we being not willing to have any thing derogated from jurisdiction ecclesiastical, do signify, that you may proceed, according to the course of the ecclesiastical court, in the plea aforesaid; so as the action reach but unto spoliation of tithes; and not to the advowson or right of Patronage, of any part of the Church: saving that he speaketh of the right of any part of the tithes, and the Register goeth to the right of Patronage itself, of any part of the Church. But where 6 Stat. circum. spectè agatis. a fourth or greater part of tithes etc. is not in demand betwixt two Parsons of Churches, there the Plea goeth to the ecclesiastical court. The 1 Goodall of the liberties of the Clergy by the laws of the Reàlme. book of Liberties of the Clergy, 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 demand, 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 man's Patronage, they may be sued there, to what value soever the thing demanded shall amount unto. That Pensions out of Churches, are demaundable (not only by statute, but also at the common law) in a court ecclesiastical: is made plain, by 2 Reg. pag. 47. 〈◊〉. ibid. pag. 53. 2. Goodall, ubi supra. two consultations in the Register, and by other books of law. But Goodall further addeth: that for a pension, there lieth also a writ of Annuity at the common law; so that it is at the plaintiffs election, where to sue. but if there he do declare, upon the prescription; and after he sue in the spiritual court, by the name of a Pension; the other (it seemeth) may then have a prohibition. For Mortuaries, that they at the common law be of ecclesiastical cognisance, read the two consultations in the Register, and the other which 3 M. 9 H. 4. M. 10. H. 4. 1. enters, title of prohibition. Reg. pag. 45. b. Reg. pag. 49. a. be here quoted. And likewise 4 Reg. pag. 50. a. b. for oblations detained; which ought (saith 5 Goodall, ubi supra. Goodall) to be paid at their usual days. Another thing due to the Minister, whereby also he hath a part of maintenance, is demaundable and determinable in an ecclesiastical Court, viz. the places of burial, and the Churchyard. Touching the first: A Parson, to an 6 Li. 44. assi. pa. 8. assize brought against him for a house, did plead that he was Parson of P. and that to be parcel of his Church, by time immemorial, and that there had been burying of dead bodies: whereupon Persey held opinion, that the court temporal, ought not to take conusance thereof. For the second; 7 44. E. 3. lib. assi. it is a good plea against the jurisdiction of the temporal court, to plead, that the land is his Churchyard. The true reason hereof I take to be alleged by Bracton (because it is dedicated and consecrated to God) where thus he writeth: 8 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 given in Francke almoigne, to an ecclesiastical person; yet it remaineth of lay fee still, and is not said to be consecrated to God. Therefore 9 19 H. 6. 20. a trespass done upon a Parson's glebe land (which is a frank tenement) cannot be tried in a spiritual court. But it seemeth that in a trespass done in a Churchyard, it is otherwise. for if a 1 H. 17. H. 3. Fitz. referent, 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 burial do belong to conusance ecclesiastical, is declared by a consultation in the 2 Reg. pag. 52. b. Register very plainly. CHAP. VII. Ofright to have a Curate: and of contributions to reparations, and to other things required in Churches. Now when a Parish or Hamlet hath right to have a Curate found in their Chapel, to say them divine service: If this be denied them, and no circumstance otherwise be incident thereto, to draw it to the Common law, it should seem by all reason (of his own nature) to be a matter belonging to the conusance of a court ecclesiastical, accordingly as always (without impeachment) it hath been used. Yet I find in the books of Common law, that 3 22. H. 6. 32. an action of the case was mainteinable for not saying divine service, albeit it was there confessed, to be a spiritual matter. What the circumstances and cause thereof was, that it was so ruled in that case, Quaere. It appeareth by the 4 Reg. pag. 56. a. Register; that a prohibition being brought upon a suit in court ecclesiastical, for withholding a Chauntery, a consultation was after granted: whereby is affirmed; that pro subtractione Cantariae, & debita punitione pro huiusmodi subtractione, the suit belongeth to a court ecclesiastical: and the like (therefore) must needs be thought of a Chaplain or Curate, not found to say divine service, 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 Navis ecclesiae) and to the charges of buying and furnishing other utensils, ornaments, and books, required (by law) to be bought of the common charge; doth appear partly by the Register, and partly by Fitzherbert in his nova natura brevium, who doth gather it thence. For if (saith he) a 1 Fitzh. no. na. br. tit. Consult. fol. 50. Bishop do cite any of the parishioners of a Church, to be contributory to the reparations of the parish Church, or of any Chapel annexed to it: if the party sue a prohibition directed to the Bishop, surmising that he is impleaded (touching lay fee) in court Christian; the Bishop shall have a consultation upon this matter showed in the Chancery, on his behalf. And partly also by the Injunctions which were set out by the Queen's Majesty in the first year of her reign, and are under the great seal of England, for better record of the matter, her highness being thereunto authorised by act of Parliament. For in 2 Injunctions published 1559. these are contained, sundry utensils, ornaments, books, and other things, that by the common cost of every Parish shallbe provided, and from time to time supplied: and whether they be wanting or no, is to be inquired by ecclesiastical judges; and the observation of the Injunctions is by them to be urged (against those, that shall infringe any of them) by processes and censures ecclesiastical, according to the course of that law. And herein the Injunctions follow but the Common law. For 3 Of the liberties of the Clergy by the laws of the Realm. if a terre-tenant holding land that hath usually paid for such tenement a pound of wax, or such like, unto the Church, do withhold it; the Churchwardens may sue him for it, in a court eccles. Also 4 Ibidem. if a man that withholdeth Church goods, do by his last will enjoin his executors to make deliverance; any of the Parish may sue the executors for them in court ecclesiastical. For proceeding ecclesiastically against refusers to contribute unto the reparations of the body of the Church, there remaineth a judgement in a consultation 5 Reg. pag. 45. 2. (recorded in the Register) to this effect, viz. vobis significamus, quod super reparatione & emendatione defectuum corporis ecclesiae (juxta consuetudinem approbatam) facienda: procedere poteritis, & ea facere, quae ad forum ecclesiasticum noveritis pertinere, dicta prohibitione non obstante. And by reason of defects in reparations of a Church, money itself may lawfully be sued for, in a court ecclesiastical, as 6 Reg. pag. 48. 2. appeareth by another consultation in the Register. And so is it also provided by statute (in this behalf) amongst other things, viz. 7 Circumspectè agatis, 13. Ed. 1. Prelates may punish for leaving Churchyards unclosed, or for that the Church is uncovered, or not conventently decked: in which cases, none other penance can be enjoined, but pecuniary. CHAP. VIII. Proofs in general, that sundry crimes and offences are punishable by ecclesiastical jurisdiction: and namely, idolatry, heresy, perjury, or laesio fidei, and how far the last of these is there to be corrected: also of disturbance of divine service, or not frequenting of it, and neglect of the Sacraments. LAstly do follow the testimonies of the laws of the Realm for proof, that many crimes also and offences are punishable by jurisdiction ecclesiastical: and first in general, then in particular, for sundry of them: The King writ thus to his judges: 1 Statut. Circumspectè agatis. 13. E. 1. use yourselves circumspectly in all matters concerning the Bishop of Norwich & his Clergy, not punishing them, if they hold plea in court Christian of such things as be merely spiritual, that is to wit, of penance enjoined for mortal sin, etc. In hospitals 2 2. H. 5. ca 1. that be of any others foundation than the Kings, it is enacted that Ordinaries shall inquire of the foundation, erection and governance of them, and of all other matters necessary in that behalf: and thereupon make thereof correction and reformation after the laws of holy Church, as to them belongeth. In the statute of Citation, it is permitted, that a man may 3 23. H. 8. ca 9 be cited out of the Dioeces where he dwelleth; when some spiritual offence or cause is committed and done, or omitted, neglected, or foreslowed to be done by some, having spiritual jurisdiction. In a statute of K. Edward the 6. 4 1. Ed. 6. cap. 2. Causes of correction be reckoned as ecclesiastical: which statute though it be repealed (for the principal purport there of being touching Ordinaries seals, and names not to be used any more, in their citations and processes) yet it bringeth sufficient evidence, that sundry matters of correction be of ecclesiastical jurisdiction. And so Bracton testifieth, that it was used and holden in his time: for he saith, In 5 Bracton lib. 5. cap. 2. causis spiritualibus vel spiritualitati annexis, ut si propeccato vel transgressione fuerit poenitentia iniungenda, judex ecclesiasticus habet cognitionem, quia non pertinet ad regem iniungere poenitentias, nec ad judicem Secularem. The sundry consultations set down in the Register do show; that when the proceeding is ad correctionem animae, for some sin not punishable in the Temporal Court; the cognisance is Ecclesiastical. One 1 Regist. 45. a. b. example shall suffice: viz. Nolumus, cognitionem ecclesiasticam, in ijs quae ad forum ecclesiae, & maximè ad correctionem animae pertinent, contra justitiam impedire. But to descend to more particulars, and first concerning those which are contrary Pietati in Deum, That idolatry is punishable by jurisdiction ecclesiastical; appeareth by the statute 2 5. Eliz. cap. 23. De excommunicato capiendo, afore alleged: and touching Heresy or error in matter of Religion or doctrine (besides that Statute) others do also show, how it is inquirable, and punishable by jurisdiction ecclesiastical. For both the Preamble and Statute of Henry the fourth, and the Statute of Henry the fift touching Heresies, do plainly testify hereof. In the former whereof is said: 3 2. H. 4. ca 15. that the Dioecesans of the Realm, cannot by their jurisdiction Spiritual, without aid of the Royal Majesty, sufficiently correct nor restrain the malice of Heretics; because they go from Dioecesse to Dioecesse, and won't appear before the Dioecesans, but contemn the keys of the Church, and censures of the same, etc. And in the 4 2. H. 5. ca 7. later: that the conusance of Heresy, errors and lollardies, belongeth to judges of holy Church, and not to secular judges. And likewise by a later 5 25. H. 8. c. 14 Statute than those, whereby it was provided; that every person being presented or indicted of any Heresy, or duly accused or detected thereof by two lawful witnesses at the least, to any Ordinaries, etc. might by them be proceeded against, etc. and none otherwise. Neither is it material, though the said three statutes do stand repealed; for they show (nevertheless) touching Heresy; what then was, and now is still at the Common Law. which offence to be still punishable at the Common Law, doth also more plainly appear by the statute of Citations, being still in force. For there it is provided, that (the said statute notwithstanding) 6 23. H. 8. c. 9 the Archbishop may cite and summon any person of his province for cause of Heresy, if the immediate Ordinary do consent, or do not his duty: and that the prerogative of the Archbishop of Canterbury shall not be prejudiced by that Statute. The like is testified of breach of an oath, and of perjury in an ecclesiastical Court or matter. For after that (amongst divers other matters) in the statute of 7 Circumspectè agatis. 13. Ed. 1. Circumspectè agatis, breach of an oath is mentioned, it is thus in the end added: In all cases afore rehearsed, the Spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition. And by the aforesaid 1 5. Eliz. ca 23. Statute De excommunicato capiendo (among sundry other crimes and offences) Perjury in the Ecclesiastical Court, is reckoned to be of Ecclesiastical jurisdiction. And so is it by a 2 5. Eliz. cap. 9 proviso in the statute against perjury, made at the same time. By books of the Common Law, I find two cases, wherein breach of oath called laesio fidei, in an oath voluntarily taken, whether privately, or before an Ecclesiastical judge (as was in those days much used) is to be determined in the Temporal, and not in the Ecclesiastical 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 oath (that he would not go against it) before the Pope's collector in England; who pretended (though unjustly) some jurisdiction Ecclesiastical in himself. Against which oath, when the vicar was supposed to deal, and was therefore convented before the said Collector; there went forth a prohibition, and no consultation could be obtained. For (said Hankeford) a 3 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 Ordinary for perjury, but where the principal matter whereupon the perjury grew, was a matter Spiritual or touching it: and alleged this reason: for else, if the perjury should be found against him; he should be strait awarded there, to perform the oath whereupon the perjury grew, and where of he 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 King's royalty. And again, the same man, in the 4 T. 11. H. 4. fol. 241. secund. unam impress. & 88 vel. 85. secund. aliam. same King's days, (afterward) reporteth; that a man had sworn to make a feoffment of his land; and because he did it not, he was vexed by the party, in the Court Christian, as for the perjury: and because such suit shall be as a compulsion to perform a thing touching land and inheritance; it was adjudged in such manner, as if he had sued for the principal, in Court Christian. And the effect 5 P. 38. H. 6. 29. of both these cases is rehearsed (with the like reason) by Fortescue in the Exchequer Chamber; and was expressly granted by some, and gainsaid by none. Therefore 6 Fitzh. tit. proh. 12. ex Regist. if a man and his wife do alien the right of his wife, and the wife is sworn that she will not sue the Cui in vita: and yet after the death of her husband brings the writ, and the other sueth her in Court Christian for breach of her oath, she shall have her prohibition. Agreeable to which, is that judgement long agone, that 1 M. 4. H. 3. referent Fitzh. prohib. 15. if a man sue another in Court Christian pro laesione fidei, which oath arose upon a temporal contract or cause, a prohibition lieth. And 2 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 judicium Ecclesiasticum. Hereof he allegeth a reason in another place of the same book, 3 Idem lib. 5. cap. 9 jurisdictionem regiam non mutat fidei interpositio, sacramentum praestitum, nec spontanea renuntiatio partium. To which resolutions accordeth this book case: In an 4 M. 20. Ed. 4. fol. 10. attachment upon a prohibition, where the plaintiff was sued in Court Christian pro laesione fidei, in that he had sworn to pay fifteen pounds, and did not: Brian held, that when the faith is made touching a matter Spiritual, than the breach there of shallbe punished in a Court Spiritual: (as if one should swear to pay me his tithes truly, or a woman to marry with me) but if the faith be made upon a matter Temporal, than the breach of faith shall not be punished there: because they will not assoil him (if he be convict) till some Temporal duty be contented and paid. A later Treatise of the Common Law made in King Henry 8. his time, doth touch this 5 A Treatise that the B. of Rome had never Supremacy here, by the Laws of the Realm. cap. 1. point thus, viz. In most cases of perjury, the King and his Courts have had the punishment, and in some cases the Clergy in their Courts, have had the punishment, by the custom of the Realm only: viz. such as have risen upon Spiritual causes. Another case where the Ecclesiastical Law shall not have conusance of the breach of an oath voluntarily taken, is when there lieth an action for the matter (whereof the oath was confirmatory) at the Common Law. therefore it was holden by Brian 6 T. 22. Ed. 4. fol. 20. not long after; that if a man swear to pay twenty pounds, that he oweth, at a certain time, and pay it not; and for the perjury be brought into the Spiritual Court, there shall lie a prohibition: because (saith he) an action of debt lieth at the Common Law. I make this a several cause and reason from the former, because an oath may grow upon a Temporal matter, (which was the former cause) and yet none action lie for it. And if I promise without any consideration to give you twenty pounds, and bind it with a voluntary oath, it seemeth the Common Law will hold it still but pro nudo pacto, and so give none action at all. But some occasion is given unto me to think, that courts Ecclesiastical, de facto (howsoever de iure) held plea of breach of oath and of faith falsified (which 1 Lyndw. in cap. aeter●…ae sanctio. verbo fidei transgressione. de poenis. amounteth to as much in some respects, as breach of a corporal oath) even when such oath or faith voluntary taken, was for confirming of a matter Temporal. For this I find not only before the Writ was framed de recognitionibus per sacrament a non faciendis, de catallis & debitis, quae non sunt de testamento vel matrimonio: but afterward also, and that aswell by judgement, as by opinions delivered and reported for book cases: albeit with certain cautions; which shall (by the way) be touched. First then, that Ecclesiastical Courts handled this cause long afore that writ was devised; I find in a 2 Prou. Constitutio, 〈◊〉 sanctio. de poenis. Provincial Constitution made at a Synod holden at Lambhith under Boniface then Archbishop of Canterbury, in the time of King Henry the third, Anno Christi 1260. which constitution I do allege, not as being of force now, for the purport thereof (because it aimeth at the bridling of the King's Prerogative, and of his Temporal Courts) but thereby (historically) to show, what was then held and practised usually. The effect of it (to this purpose) is: that whereas Prelates do take Conisance of sins and of misdemeanours of such as be under their jurisdiction; as of Perjury, or breach of faith, of Sacrilege, of violation of Church liberties, (for infringing of which, even by the King's Charter granted to the Church of England, such disturbers do fall into Excommunication ipso facto) and of such like causes which be merely of Ecclesiastical Conisance: yet are prohibitions directed forth out of the King's Court; and judges Ecclesiastical are called thither to answer; as if they dealt not concerning Perjury and breach of faith; but suggesting that they deal touching chattels. Therefore a little after, is added this, viz. 3 Dicta. Prou. Const. And if perhaps the King in his attachements, prohibitions, and summons shall make mention, not of Tithes, but of right of Patronage: not of faith falsified or perjury, but of Chattelles: not of sacrilege or disturbance of ecclesiastical liberties, but of some trespass pretended to be done by his subjects or bailiffs, the ●…edresse whereof belongeth unto him: then let the Prelates aforesaid make known unto him; that they hold no plea, neither intent to do, concerning right of Patronage, or chattelles, or any other things belonging to his court: but concerning tithes, sins, and other mere spiritual matters, belonging to their office and jurisdiction, and tonching the safety of men's souls etc. So that the truth of such allegation being manifested to the king, they thought the plea sound and sufficient, to obteinea discharge from such prohibitions, etc. if they were in those respects only granted. Yea, and Lindwood, who writ anno 1423, and long after that writ was framed (who also by reason he was Official principal of Canterbury or Deane of the Arches, had good experience in these causes) maketh no 1 Lindw. ibidem V periurio. doubt; but that matter of perjury or of breach of faith, arising upon what cause soever, so far forth as it concerneth doubt, whether such oath were lawful or not, and do bind in conscience, or not; is of ecclesiastical cognisance. And therefore teacheth how the libel in that case is to be framed, that no cause of prohibition be given, viz. the party hath damnably broken his oath made for payment of so much money, unlawfully pretending, that he is not thereby bound or tied. The statute Circumspect agatis saith: defamation shallbe tried in a Spiritual court when money is not demanded, but a thing done for punishment of the sin, and likewise for breaking an oath; without distinction, whether it arose of a temporal cause or not. Since the said writ, we have a judgement in the very point in the time 2 Lib. 22. Assis. fol. 70. of king Edward the third. For if a man demand a debt of ten pounds before the Ordinary, for that the defendant plight his faith to pay it etc. and hath not paid it, but broken his faith: the Ordinary cannot enjoin him to pay the debt for safeguard of his faith; and if he do, he doth it against the king's prohibition. But he ought to enjoin him other corporal penance, except the party will willingly redeem it. For so Fitzherbert 3 fitzherbert's Abridgement tit. Prohibition. num. 2. readeth those last words of exception, more truly than my book of Assizes (as it is printed) carrying indeed therein no sense at all. The like appeareth in the reign of king Henry the sixth: for there it 4 34. H. 6. 70. ut Brooke allegat tit. jurisdiction num 2. was holden, that if a man buy an horse of me, and swear upon the Evangelists to pay me ten pounds for him such a day and pay it not: I shall have action of debt at the Common law, and also a citation pro laesione fidei at the Spiritual law, and shall not therein offend the Common law, because they are divers things. As for opinions afterward, we find it was held by Brian and Litleton in the time of K. Edward the fourth, none there gainsaying it: that 1 M. 20. Ed. 4. fo●…. 10. in laesione fidei arising vp●… a temporal matter, the Spiritual court might punish it ex officio, but not at the suit of the party. To the same purpose also Mordant said in the time of K. Henry the seventh, 2 T. 12. H. 7. fol. 22. that if a man be sued in a Court ecclesiastical by a party pro laesione fidei, in not paying a sum of money promised, there shall lie a prohibition; but if the judge ecclesiastical shall do it ex officio, than no prohibition shall lie. which no man gainsaid or impugned. These two opinions, lest they should seem to cross the former judgement in the book of assizes, and the other book case of 34. H. 6. (both which admit a party to sue in the Court ecclesiastical) do seem to me only therefore to reject a party, and to require proceeding ex officio judicis: because it was presumed; that a party would not prosecute, to have the sin alone punished; but rather for satisfaction of the thing promised to him. Yet this in truth may be otherwise by the law ecclesiastical. So that upon all that which hath herein been last spoken, it might probably seem to some; that punishment of perjury or breach of faith, even arising upon a temporal cause, should be still (by the Common law) of ecclesiastical cognisance: so that penance for the sin be but enjoined, and no temporal amends required. which doubt is to be referred to the reverend judges resolutions. That disturbance of divine service is also punishable by jurisdiction ecclesiastical, the statute thereof made, in the time 3 1. Mar. cap. 3. of Q. Marry, doth prove: for though it do provide punishment temporal therefore; yet it reserveth the jurisdiction that Ordinaries had, for punishment thereof by laws ecclesiastical. Not to frequent or come to divine service at times appointed, is declared to be subject to proceeding and censures ecclesiastical, aswell as to other punishments, by the statute 4 1. Eliz. cap. 2. for Uniformity of Common prayer: and so is both that, and neglect of the Sacraments; by the statute De excommunicato capiendo, heretofore often alleged, proved to be of Ecclesiastical conusance. Long afore that statute, upon a prohibition brought, a consultation 1 Reg. pag. 50. a. b. was granted: whereby the Ordinaries proceeding ex officio, against one that refused to receive the Communion, is allowed and warranted. And so doth the little 2 Goodall of the liberties of the Clergy. Treatise of the liberties of the Clergy, report this offence to be of Ecclesiastical conusance. Thus much touching offences ecclesiastical, being referred to impiety towards God. CHAP. IX. That simony, usury, defamation or slander, beating of a Clerk, sacrilege, brawling or fight in Church or Churchyard, dilapidations, or waste of an Ecclesiastical living, and all incontinency, are punishable by Ecclesiastical authority, and how far. AMongst such crimes as be offences against justice, I do place simony first; as participating also not a little with the former sort, yet rightly sorted hither: because it is, as a buying and selling of such things, as be not (in truth) res mancipi (as the old Romans spoke) things lying not in commerce between men to be bought and sold. This fault the said 3 Ibid. in fine. statute De excommunicato capiendo, showeth to be punishable by jurisdiction ecclesiastical. That usury is likewise, it doth appear by authority of divers Parliaments. The king and his 4 15. E. 3. cap. 5. shall have the conusance of the usurers dead, and the Ordinaries of holy church shall have the conusance of usurers on live, as to them appertaineth, to make compulsion by the censures of holy church for the sin, and to make restitution of the usuries taken, against the laws of holy church. By another later act made against usury, 5 11. H. 7. cap 8. there are reserved to the spiritnal jurisdiction, their lawful punishments in every cause of usury. And so is it expressly also mentioned in the aforenamed statute De excommunicato capiendo: but this jurisdiction is since somewhat restrained, because 6 13 Eliz. cap. 8. usury can not now thereby be punished nor corrected, except it reach above the rate of ten in the hundred by year. By a consultation in the 7 Reg. pag 49. b. Register, which was granted in allowance of proceeding against one for his usury, it is thus said, in this behalf: 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 part (viz. pro usura) dum tamen nihil aliud attentetis quod cedat in laesionem dignitatis nostrae, in curia Christianitatis procedere poteritis, prohibition nostra non obstante. But this fault & sin of Usury is mixti fori: that is to say, in some respect is of temporal, & in other regard of ecclesiastical cognisance, not only by the statutes of the Realm (as you have heard) but also even by the law civil, albeit in a divers sort. For in countries where that law hath place, if it be 1 D D. in l. Titia. ff. soluto matrimonio. called in question, whether a contract be usurarious or not, the court ecclesiastical doth determine this: but for to pronounce such a contract void and to execute that sentence, belongeth to a temporal court. For cause of defamation, it is 2 Stat. circumsp. agatis. 13. Ed. 1. recorded by an old statute, that it is already granted, it shall be tried in a Spiritual court. And again: In 3 Artic. cleri 9 Ed. 2. cap. 4. defamation, prelate's shall correct by penance corporal, the king's prohibition notwithstanding: but if the offender will redeem the penance with money, the prelate may freely receive the money, though the king's prohibition be showed. By the preamble also of the statute for 4 23. H. 8. cap. 9 citations, it is plainly argued, that defamations belong to the comsance of jurisdiction ecclesiastical, so they be duly and according to law prosecuted. Also by the books of Common law it appeareth throughout the arguments made in the great case of prohibition, in the time of 5 T. 12. H. 7. fol. 22. Henry the seventh, that the suit for defamation belongeth to ecclesiastical jurisdiction. for there, aswell by those Sergeants that stood against the consultation, as the others, and by the judges also that granted the consultation (the original cause being defamation) it is yielded, that the punishment of slander or defamation, is belonging to the Spiritual law. Whereas there is a Provincial constitution, that decreeth a slanderer or defamer of another, to be ipso facto excommunicate, this is allowed by 6 Reg. pag. 49. a consultation in the Register, unto a court ecclesiastical. And it is there added to this effect, viz. Si in causa diffamationis ad poenam canonicam imponendam agatur, tunc ulterius licitè facere poteritis, quod ad forum ecclesiae noveritis pertinere, prohibition nostra non obstante. One that sued 1 Reg. pag. 51. 2. another in a cause of diffamation in court ecclesiastical, was there condemned in expenses to the defendant, who was absolved, for that the plaintiff failed in his proofs. The plaintiff to hinder the execution of the sentence, and to escape without expenses, procured a prohibition. Yet upon debating of the matter; a Consultation was herein also awarded. So that we see, both the Principal and the Accessary cause, to be of ecclesiastical cognisance. If (saith 2 Liberties of the Clergy, by the laws of the Realm. the Treatise of the Liberties of the Clergy) a man defame or publish one for false, an adulterer or usurer, he may be sued in court ecclesiastical. And another Treatise (published also in king Henry the 8. time by a common Lawyer) saith thus: 3 That the bishop of Rome, etc. cap. 3. printed by Berthelet. In some cases of diffamation and slander, the king's courts; and in some cases the Clergy have holden plea thereof. Therefore I do the more marvel (the law being so plain) at the Note that is set 4 Nota in Reg. pag. 54. b. down in the Register touching this matter, viz. All the justices 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 ever, than the justices meant, or then by Statutes and law may be warranted. It may be that a book case of Henry the 4. gave occasion of this mistaking, being not thoroughly weighed. for at first sight it seemeth to sound, as if no diffamation at all were of ecclesiastical cognisance. And so 5 Tit. Consultation, nu. a. & alibi. even Brook in his Abridgement seemeth to take it. But the truth is, by that case is only meant, that such diffamation as ariseth upon a Temporal matter, is not of ecclesiastical cognisance: which is the first exception of the general rule set down in the Statute of Circumspectè agatis: where is said; that diffamation shallbe tried in the Spiritual court. And that the said case is to be restrained to such diffamation only, will appear most plamlie to him, that considereth the scope of 6 M. 2. H. 4. fol. 15. Hankefords' argument. The Vicar of Saltashe had given an oath before the Pope's Collecter, in confirmation of an obligation by him made. The Dean of Windsor sued the Vicar before the Collecter, prolaesione fidei: the Vicar purchased a prohibition. Hankeford to maintain this prohibition, argueth, that the perjury couldnot be sued in an ecclesiastical court, for that it arose upon a temporal cause. Adding for proof of his saying, that himself had a matter upon the like reason ruled for him, and against the Archbishop of Canterbury, H. 14. Edw. 3. par attachment sur Prohibition, etc. de ceo que il suist en court Christian, pur diffamation. The matter than was not ruled against the Archbishop simply, for suing diffamation there; but of such a kind of diffamation. For else this would not have fitted the purpose of Hankefords' argument: because he having to prove that laesio fidei arising upon a Temporal cause might not be sued in an ecclesiastical court: could not make any colour of that assertion, by alleging of a judgement that no diffamation at all might be prosecuted there: for that is not the like reason. And therefore, as that laesio fidei arose on a Temporal cause; so did the diffamation there spoken of, for which a prohibition did lie without Consultation. That diffamatory words touching a temporal cause may not be sued in court ecclesiastical; we have also a prohibition 1 Regist. fol. 42. b in the Register, without any Consultation granted. For whereas one gave witness in an Inquisition made by the king about his exchange in York: the party touched, sued the witness (for diffaming him) in a court ecclesiastical, whereupon the witness brought a Prohibition, by reason the matter was a Temporal cause. By Statute likewise it is 2 Ed. 3. c. 11. enacted, that a Prohibition shall lie, if a man be sued in court ecclesiastical for diffamation, in that he indited the other. I find also another cause, why some diffamation may not be sued in a court Ecclesiastical: and that is, when action therefore lieth at the Common law. As 3 P. 18. Ed. 4. fol. 6. where a man brought Action of trespass for goods taken away; the defendant hereupon sued him in a spiritual Court for diffamation. But Hussey the king's Attorney, in behalf of the Plaintiff desired a Prohibition; because the plea in Court Christian was moved, the suit hanging there: and had it granted. Quod nota. So if I be rob, and speak of him that rob me before others, so that he sueth me in a spiritual court for diffamation; there lieth a Prohibition: because I may have an Action at the Common law, videlicet, mine appeal of the robbery. There be also in the book of 1 Book of Entries, tit. Prohibition. Entries, precedents of Prohibitions granted against those that for diffamation prosecuted such in court ecclesiastical, as sued them in temporal courts, for maim, and for forging of evidences. So that we may conclude this point, that out of the cases excepted; the rule of Circumspect agatis, and Articuli Cleri (for diffamation to be of ecclesiastical cognisance) hath place, even by allowance of the common law. There resteth yet one point belonging to this place; fit to be cleared. There is alleged for other purposes by the Notegatherer, a little old printed Treatise, Concerning the power of the Clergy, and laws of the Realm. In which, the Statute of Circumspectè agatis (both here and elsewhere by me alleged) is avouched to be no Statute, but a bare constitution. The words 2 Of the power of the Clergy and laws of the realm, cap. 8. be these: We never saw any proof that Circumspectè agatis, was a Statute, or taken out of the king's answers. and there be in the said treatise divers things that be directly against the laws of the Realm as it is in this point. That Prelates for fornication, avouterie and such other, may sometime assign bodily pain, and sometime pecuniary pain. And the law is, that Prelates shall never assign pecuniary pain for correction of sin, but only at the desire of the party. And also it is recited in the said Treatise, that if the Prelate of any Church, or his Advocate, ask of the person a pension; that the suit should be in the Spiritual Court: and the law of the Realm is even to the contrary. And we think, that if it had been a Statute; that the law should never have been used therein, so directly against the Statute, as it hath been used. And in the nineteenth year of King Edward the third, in a writ of Annuity brought in the King's Court against the said Article of the said Treatise: it is said, that the said Treatise is no Statute, but named so to be by the Prelates. And also the said writ of Annuity is judged to be maintenable in the King's Court, and that is directly against the Treatise of Circumspectè agatis, wherefore we think it is no Statute. The very like words are also used (I think all by one Author) in 1 Ibid. cap. 8. another Treatise of constitutions Provincial and Legatine. Now, in that to prove it no Statute, he saith; There be in it divers things directly against the laws of the realm, seemeth to me a strange reason. As though statutes (for the most part) be not to the restraining and changing of the law of the realm. His first special objection doth answer itself. For if the Party desire commutation of corporal penance into pecuniary, especially if he be a free man; the Ordinary may lawfully accept of that commutation, and being so understood, circumspectè agatis; jumpeth therein both with 2 Articuli Cleri. 9 Ed. 2. cap. 2. 3. & 4. law and practice. Touching his second objection against it, of a pension: I refer myself to that which hereof hath been spoken in the 6. Chapter of this first part. As concerning his alleged book of 19 Edward the 3. reporting it to be no Statute, I must tell him, that he hath a larger printed book than mine; if he have any reports, either of the 19 or 20. years of king Edw. 3. But whatsoever either he that was Author of those two little Treatises, or any other private or particular persons do think may be collected or probably spoken thereof: I trust they will all be contented to submit their judgements to an Act of Parliament. Therefore to cut of all doubts at once in this behalf; let them read the 3 1. & 2. Ed. 6. 〈◊〉 cap. 13. in a Proviso. 〈◊〉 Act for true payment of tithes, made in king Edward the 6. time; where both Articuli Cleri, Sylva caedua, de regia prohibition, and also Circumspectè agatis be called Statutes, and are appointed to remain in their entire, as they were afore that new statute. If a man lay 4 Stat. circums. agatis, 13. Ed. 1. violent hands on a Priest, this offence is punishable also by ecclesiastical judges. Therefore it was determined in another Parliament, that for excommunication pro violenta manuum iniectione in Clericum, before 5 Art. Cleri. 9 Ed. 2. ca 3. a Prelate, where penance corporallis enjoined: if the defendant will redeem his penance by giving money to the Prelate or party grieved, it shall be required before the Prelate, and the king's prohibition shall not lie. This seemeth to have been there determinable (by some reports at the Common law) even afore these statutes. 6 H. 7. H. 3. referent Fitzh. tit. Prohibition, nu. 30. For if a man enter into S. john's place, and beat the brethren there, and take their chattels, for this violence he shall be sued in Court Christian, and so it was adjudged by the Court. In a Consultation granted after a prohibition in this case was brought, it is 1 Reg. fol, 49. b. thus contained in the Register, viz. si in causa iniectionis manuum violentarum in clericum, in possessione Clericatus existentem, quémque alter scivit esse clericum, non de violata pace nostra, sed de excommunicatione, ad correctionem animae tantummodo agatur: tunc prohibitione nostra non obstante, ulteriùs in eadem facere poteritis, quod secundum forum ecclesiae, & de iure fore videritis faciendum. But I find two cases where laying violent hands on a Clerk, shall not be sued in a Court Ecclesiastical, but there will lie a prohibition. The first is, If a Clerk be 2 Regist. fol. 42. & 51. arrested at the Common law, if thereupon he sue in a spiritual Court pro violenta manuum iniectione in Clericum, there lieth Prohibition. Another case is, 3 T. 11. H. 4. fol. 241. in alijs libris vel 88 vel 85. when a man is excommunicate for laying violent hands on a Clerk, if the spiritual Court deny absolution till amends be made to the party for the battery, a prohibition also will be granted: because it shall be intended, he which sueth, doth it to recover damages. But (though it be at the suit of the party) if only the punishment of the offence, and not any amends be sued for, it is determinable in a Court ecclesiastical, albeit the 4 Art. Cleri. 3. & 6. Temporal Court have also the debating of the matter, touching the amends and the battery. For (saith Thirning) if a party sue only 5 Ibidem. to inform the Court that the other hath laid violent hands upon him, being a Clerk; to the intent, the sentence of holy Church may go against him, to be excomunicate for the wrong done to holy Church, and not to recover damages; peradventure it might be tolerable. To which an other book agreeth, 6 H. 22. Ed. 4. fol. that if a man beat a Clerk, and he sue him in the spiritual Court for his sin of excommunication, he doth well: but if he sue to have the matter there examined, & for amends; there lieth a prohibition. For we find a 7 Entrees. tit. Prohibition. precedent of a Consultation granted, even where a party sued in Court Christian, proviolenta manuum iniectione in Clericum. And so is it testified by the 8 Gooddall of the Liberties of the Clergy. book of the Liberties of the Clergy, by the laws of the Realm, in these words: A Priest may sue to have him excommunicated or corporally punished that laid violent hands upon him, but not to have amends. Nevertheless, if 9 Gooddall ibid. a man put to corporallpenance for diffamation, or for beating a Clerk, to redeem his penance, will agree to pay money to the party damnified: & after contrary to his promise will not pay it; he may then be sued by the party damnified, even for the money, in a court ecclesiastical. And not only the party may thus sue to have him punished, but the 1 M. 20. Ed. 4. 10 Spiritual court may also punish it exofficio, as Brian and Litleton there did hold. To this accordeth the said little book, where is said, that the 2 Gooddall, ibid. ecclesiastical judge may of Office cite for laying violent hands on a Clerk, 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 3 Reg. sol. 51. 2. gathered, both that such a cannoneer of a Clerk, doth incur excommunication ipso facto: and that the ecclesiastical judge ex Officio, may lawfully proceed to enjoin him corporal punishment. Touching Sacrilege, that it is also punishable by law in a Court ecclesiastical, two adjudged cases may be alleged out 4 M. 4. H. 3. per Fitz. Prohib. nu. 14. of Fitzherbert's great Abridgement. For if a man take goods out of the Church or Churchyard, he that hath property, may sue him in a Court Christian, and may compel him to stand to the sentence and judgement of the Spiritual court for this offence. And again: 5 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, 6 Lyndw. in V Sacrilegio. c. aeternae sanctio. de poenis. saith, It is not a crime merely ecclesiastical: because the cognisance thereof may belong to a temporal judge, at least touching the corporal penalty: but not concerning the censures of the Church, that aught to be laid upon such. 7 15. & 6. Ed. 6. cap. 4. Concerning fight, quarreling, and brawling in Church or Churchyard, the Ordinary in some degree is to punish it by suspension ab ingressu ecclesiae in a lay man, and from ministration in his office in a Clerk; and in another degree, in either sort Lay or Ecclesiastical, by denouncing the party offending to be excommunicate ipso facto, by virtue of that Statute. Dilapidations likewise, & waste made upon a living Ecclesiastical, are determinable & 8 13. Eliz. ca 10. punishable by Ordinaries. For the Statute made in her majesties time for remedy in Dilapidations provideth; that as afore by the laws Ecclesiastical, just actions and remedies might be had against executors and administrators of deceased incumbents: so they should by virtue thereof be used against alienees and donees of the goods of such incumbents. The Treatise of the Clergies liberties saith, that for 1 Liberties of the Clergy by the laws of the Realm. Dilapidation the parson may sue (in court Ecclesiastical) the executors of his predecessor. So at the 2 M. 2. H. 4. sol. 9 Common law, Tirwhit did hold, that if an ecclesiastical person make waste of his benefice, he shall be deposed, as a Dilapidator of his Church. But deposition cannot be justified, but by authority ecclesiastical. Those crimes which I said were opposite to sobriety in a man's own self, are also punishable by ecclesiastical authority. 3 Stat. Circumspectè agatis. 13. Ed. 1. For the Clergy are not to be punished for holding plea in court Christian, of such things as be merely spiritual, that is to wit, of penance enjoined for deadly sin, as fornication, adultery, and such like. In which words of (such like) I doubt not but other incontinencies, as Incest, Stuprum, and Polygamy be also understood, being all more grievous than fornication, and two of them more execrable than adultery. And so doth Lyndwood interpret the word, huiusmodi, such like: that 4 Lyndw. V huiusmodi. c. Circumspectè. de foro competenti. is to say (saith he) Incest, whoredom, and others, which be contained under the sin of Lechery. And to these are to be added other crimes, which also are to be handled and punished in a court ecclesiastical; as namely, Sacrilege, Usury, Heresy, Simony, and Perjury, to 5 c. Ecce. 23. q. 4. which an old Canon also addeth such offenders as be Inspectatores nugarum, and consulters of Starre-gazers, fanatical persons, wizards, Fortune-tellers, Drunkards, and Idolaters. And to make it more plain, that all unlawful company of man and woman, not being capital by the laws of the Realm, is subject to the jurisdiction ecclesiastical, the 6 5. Eliz. ca 23. general word of Incontinency (which comprehendeth all) is used in the statute De excommunicato capiendo. In the 7 Reg. sol. 45. a. & 57 b. Register there be two precedents of Consultations granted in causes of Fornication; against which (in both) the judge also proceeded of office. And the treatise of Clergy liberties saith, 1 Gooddall of Clergy Liberties. Though a bishop may not visit the King's free Chapel, yet he may cite and punish the Chaplain thereof for keeping a concubine. Hear also what another old Treatise written by a common Lawyer, in those times 2 An answer to a letter, cap. 1. Printed by Tho. Godfrey, tempore H. 8. saith in this behalf, viz. the Clergy ought to have correction (as of crimes mere spiritual) of adultery, fornication, Simony, and Usury, and to order matrimony, tithes, oblations, and perjury (in some case) and of divers other things: whereof it is no doubt, but they have holden plea in times past, rather by a custom and by sufferance of princes; then for that they be mere spiritual, or that they had authority by the immediate power of God. So that they be by him yielded, of long time to have been of ecclesiastical cognisance. CHAP. X. That the matters and crimes here reckoned be also of ecclesiastical jurisdiction: and proofs, that any subject lay or other, may be cited in any cause ecclesiastical. THere do yet remain sundry points, which in the second Chapter of this part, I have set out, as being of ecclesiastical cognisance, hitherto not spoken unto purposely. First then for ordaining of real compositions (being a matter of voluntary jurisdiction) and disannulling of them, if they have been made contrary to law and right (which is for the most part of jurisdiction contentious) we have in the Register some testimony. For 3 Reg. fol. 51. b. whereas an Ordinary had made an ordination or real composition for certain Chaplains to serve from time to time in a Church, which were not found by those that aught; the bishop hereupon ex officio proceeded to interdict the Church, and unto other Canonical pains. And though thereupon a Prohibition was brought, yet was it reversed (upon debating) by consultation, and the bishops proceeding allowed, for lawful. Touching 4 Reg. fol. 50. a. disannulling of a real composition (unduly made) in a Consultation there, is thus contained: Significamus quod in negotio adnullationis Ordinationis pro Pensione, tanquam iniquae & non rationabiliter factae, & non de laico feodo in curia Christianitatis agitur, procedere, & ulteriùs facere poteritis, etc. prohibition nostra nonobstante. Next follow the censures ecclesiastical, whereby Ordinaries punish or urge execution of their sentences or decrees. First suspension ab ingressu ecclesiae, is 1 5. & 6. Edw. 6. cap. 4. showed to be an ecclesiastical censure by a statute of king Edward the sixth, forbidding brawling in Church or Church-yard. The other suspension indistinctly taken, whether ab officio tantùm, or ab officio & beneficio; is mentioned for a censure ecclesiastical, by 2 1. Eliz. cap. 2. a statute 1. El. and by her 3 Iniunctiones in fine. highness Injunctions. Interdiction of a Church is also proved so to be, by the first allegation out of the Register in this chapter. That Sequestration is another censure ecclesiastical, and the cognisance of the violation thereof of that jurisdiction, is proved clearly by a consultation in the Register. For there a certain Parishioner 4 Regi. fol. 44. b. had cut down Syluam caeduam, not paying but detaining the tithe from the Parson. Hereupon the bishop of Elie his Official, did sequester the said wood cut down. The Parishioner did break and violate the sequestration. therefore the Official proceeded with him in causa violationis sequestri. the defendant purchased a prohibition. Nevertheless, upon discussing of the matter, a consultation was granted in these words: Licitè procedere poteritis, quatenus de 5 Concordat. Clem. unica de sequest. possess. & (quoad violate. interdicti) Clem. gravis. de sententia excomm. violatione sequestri syluae caeduae excisae (ratione decimae inde rectori ecclesiae debitae, iniustè detentae & non solutae) per vos sic interpositi, agitur: & ulteriùs facere poteritis, quod ad forum Ecclesiasticum noveritis pertinere. That excommunication is a censure Ecclesiastical almost all allegations afore, and consultations in the Register do show. That which next cometh to handling here, is: that 6 Const. prou. Bonifacij. c. a nostris. de concess. praebendae. & ibi Lindwood. the Parson and Vicar have the appointing of the Parish Clerk: who being so appointed, is to have the customable fees of the Parishioners for his service, or else he may sue for them in Court ecclesiastical. That Constitution provincial calleth these eleemosynas consuetas: and (I think) they may be comprehended under the word 7 Reg. fol. 52. b. Largitiones charitativae, for which the Register hath a consultation, as being of ecclesiastical cognisance. For goods (as a pound of wax, etc.) due to a Church, and detained; 1 Reg. fol. 50. b. the Register alloweth the Churchwardens to sue in court ecclesiastical, and to procure that the church may for them, be again put in possession. Now follow (in this place) certain crimes of ecclesiastical conusance: and first such, as be contrary to piety towards God; namely blasphemy, which 2 c. 2. de maled. though in parts on the other side Sea (where Civil law hath place) it be mixti fori, that is, enquirable and punishable aswell in the temporal as in the ecclesiastical court: yet in this Realm, I have not learned of any punishment thereof (or for swearing) by any temporal power. Also idolatry, and error in religion; which are showed to be of ecclesiastical conusance, by 3 5. Eliz. c. 23. the statute De excommunicato capiendo. Likewise Apostasy from Christianity; which is the highest degree of heresy: and therefore subject to the same Court and penalty. Lastly, violation and profanation of the Sabbath, to be punishable by a Court ecclesiastical, both the continual custom of the Realm, and the statute of Circumspectè agatis, (which doth allow them to enjoin penance for sin) doth make very manifest. But we are to understand (as 4 Lindwood in c. circumspectè. de foro competenti. V mort. peccato. Lindwood also well admonisheth) that every mortal sin is not of Ecclesiastical conusance: for then (faith he) the jurisdiction of the temporal sword, were wholly overthrown; seeing you could hardly name any cause, which under colour of the sin, might not be brought unto conusance ecclesiastical. But the said statute is to be understood, of such sins, the punishment whereof doth belong properly to a Court ecclesiastical. That is all such (as I do gather) for which no remedy is provided at the Common law, nor by the same forbidden to be dealt with, by a judge ecclesiastical. And of this sort, is subornation of perjury, in an ecclesiastical court and matter, tending to the breach of justice: and unlawful solicitation of a woman's chastity, drunkenness, and filthy speech, referred to the violation of sobriety. Violation of a sequestration or of an interdiction, is in this chapter touched afore. The hindering and disturbance to carry tithes by ways due and accustomed, is handled in the sixth chapter of this part. For sundry crimes, the court Ecclesiastical may enjoin penance corporal, but not pecuniary: and if it do, there lieth a prohibition. 1 A●…tic. Cleri. 9 Edw. 2. cap. 2. Notwithstanding, if Prelates enjoin a penance corporal, and the party will redeem such penances by money, if this money (so promised) be demanded before a judge spiritual, the king's prohibition shall hold no place. And again: for 2 Ibid. cap. 3. excommunication before a Prelate (for laying violent hands on a Clerk) where corporal penance is enjoined, if the defendant will redeem it by giving money to the Prelate or to the party grieved; it shall be required before the Prelate, and the King's prohibition shall not lie. Furthermore, 3 Ibid. cap. 4. in defamation, Prelates shall correct in manner above said, the King's prohibition notwithstanding, first enjoining a penance corporal, which if the offender will redeem, the Prelate may freely receive the money, though the King's prohibition be showed. And to the same effect, there is a consultation in the Register, 4 Reg. fol. 53. b. viz. in a plea for recovery of money promised to a Prelate or to the party grieved for redeeming of corporal penance, (imposed for laying violent hands on a Clerk) you may lawfully proceed, our prohibition notwithstanding. When a 5 Reg. fol. 55. a. party proceeded with for some offence in Court Ecclesiastical, submitteth himself to such order as the judge shall take with him, either at his absolution from the sentence of excommunication, or otherwise, doth after refuse; for such his refusal, he may be dealt with, and punished in Court ecclesiastical, and may be urged by censures, to perform the order according to his submission, which the Ordinary shall set down. Likewise may an Ordinary deal for contempt of his decrees or jurisdiction; as may be perceived, both by the said consultation against one Lindsey last alleged, and 6 Reg. fol. 57 b. also by another reported in the Register. And as Ordinaries may deal in the causes afore specified: so may they also in the necessary accessories and dependences of those causes. And therefore they may adjudge expenses against the party overcome in law; and by censures drive him, to payment of them. Example hereof we 7 Reg. fol. 51. a. have in the Register, where the plaintiff in a cause of defamation failing in proof, was condemned in expenses; and could not avoid the payment of them by the prohibition which he brought. therefore in another precedent there, it is thus said: juri est 8 Reg. fol. 53. b. Goodall, of the liberties of the Clergy, by the laws of the Realm. consonum, quod ubi 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, prohibition nostra non obstante. Fees due in Ecclesiastical Courts, and Curates and Clerks wages detained, come next in this place to be proved of Ecclesiastical conusance. I must confess that for the two former of these, I do not call to mind, nor hitherto find by turning of my few books of the Common law; that any thing is written of them. Now seeing that from time to time, as occasions have fallen out of due fees there to have been detained, they have been demandable in the same Court ecclesiastical without bringing prohibition: it is some good inducement to lead us to think, that they have been (without contradiction) always yielded to be of ecclesiastical conusance. For, being such matters as subjects have a right unto, and yet no writ lying therefore (as I take it) at the Common law (which 1 Stat. de Consultatione, 24. Edw. 1. reason is the ground in statute for granting consultations, and of leaving causes of that nature, to the determination of an Ecclesiastical court) it will therefore follow, that these also do belong to jurisdiction ecclesiastical. But touching Clerks wages, called in the Provincial constitutions eleemosynae consuetae, and in the Register contained under the general word of Largitiones charitativae; I have incidently spoken in this chapter afore. There remain yet some offences (set out by me to be of Ecclesiastical conusance) which I find not hitherto so avouched to be, by any writer of the Common law: yet are they so holden by the law Ecclesiastical, and by usual practice also without any prohibition or other impeachment. The first 2 c. dura. etc. falsariorum. de crimine falsi. of them is forgery in an ecclesiastical matter, or the using and setting out of forged letters knowing them to be such: as of letters testimonials, of orders taken, of institution, and such like. Next, is the burying (in usual burial for other Christians of 1 c. quicumque de haeret. in 6. notorious Heretics; or of persons dying excommunicated, and without repentance thereof. Thirdly, willing 2 c. si concubinae. de sent. excom. and familiar conversing with persons, whom they know to be excommunicated matori excommunicatione. Fourthly 3 Bald. in ca conventic. de pace jure iurando firmanda. frequenters of conventicles, which doth also come under schism. Lastly, unlawful 4 Extrau. detestandae. de sepultura. digging up of corpses buried, either upon spite, or in any other sinister respect whatsoever. I have hitherto stood upon matters, wherein Ordinaries (by Law) may hold plea: to show thereby, that they may cite in other causes then Testamentary or Matrimonial. For deal in them, or handle them they could not, unless the party which is pretended to offer the wrong, or to be the offender, might be convented, which is by citation. Therefore (besides the authorities here and there in the former discourse falling in by other occasions, which might sufficiently prove that they may cite and compel men to come before them) I will now briefly use some further direct proof to convince; that in other causes then those two, men may be cited before judges Ecclesiastical. It appeareth by Articuli Cleri, that for any matter Ecclesiastical indefinitely, men might be cited. For upon doubt moved, whether the King's tenants were subject thereto, in such sort as others are: it is decreed, that 5 Artic. Cleri. 9 Ed. 2. ca 12. such as hold of the King's tenure, may be cited before their Ordinaries, and may be excommunicate for their manifest contumacy, and after 40. days, may be attached by the King's writ, as others. The 6 23. H. 8. c. 9 preamble of another statute proveth Citations even of men, wives, servants, and other the king's subjects for diffamations and tithes (so they be upon just matter, and in due order) to be lawful. The body of that statute 7 Ibidem. provideth, that no Citation be made out of the Dioecesse etc. where the party dwelleth, but where some Spiritual Offence or Cause is committed or done, etc. so that à contrario sensu in any other offence or cause Spiritual (as very many are afore proved to be) any subject may be cited within his or her Dioecesse, and in those also there excepted, may be cited out of the Dioecesse. Likewise 8 Ibidem. for Heresy, the Archbishop of Canterbury may cite any of his Province if the immediate Ordinary do consent, or do not his duty. In a statute 9 32. H. 8. cap. 7. made for tithes, any man withholding them, shall be convented according to the Ecclesiastical Laws. And there is also mentioned compulsory Process and censures of the Church. In a statute 1 1. Ed. 6. ca 2. of King Edward the sixth, though for the body thereof it be repealed, yet thereby is testified; that summons and citations be Process Ecclesiastical in all suits and causes of instance betwixt party and party, and in all causes of correction. Therefore seeing there is no colour, that only Ecclesiastical persons shall fall out to be deteiners of such duties Ecclesiastical, or that they only will prove offenders in the crimes afore recited, neither can all the King's tenants, nor yet men, wives, servants and other subjects be intended (for the most part) to be other than Lay persons: we may safely conclude, that not only in causes Testamentary or Matrimonial, but in very many other afore noted, any subject whosoever, may be cited before his Ordinary, or other competent judge. Quoderat probandum, as being the very contradictory of the opinion, that we are in handling. CHAP. XI. That Lay men may be cited and urged to take oaths in other causes, then Testamentary or Matrimonial. THe third opinion now followeth, which is: that by the Laws of the Realm, no Layman ought to be summoned or cited to make (or take, as I think is meant) an oath, in any other cause then Testamentary or Matrimonial. This differeth from the former in two points. The first is in the party to be cited: For the second opinion was, that none whosoever, including both Ecclesiastical and Lay: where as this is only, that no Lay man may be cited, etc. The second difference is in the end of the citation: For here is said: a lay man may not be cited to take an oath in any other cause: thereby leaving (as it might seem) the Ordinary at large, to urge persons ecclesiastical to take an oath, in other causes also. But all comes to one end. For if neither Lay nor Ecclesiastical (as the second opinion holdeth) may be cited in any other cause: then cannot Ecclesiastical men be cited in any other cause, to take an oath. That which cannot be done at all, cannot be done for any end. non entis nullae sunt qualitates. so that both these run to one point, saving that hereby is affirmed, a citation may not be made to the intent a Lay man shall take an oath, saving in those two cases. Now if this citing be meant of the party defendant; then doth it not impugn any proceeding ecclesiastical in use. for the party convented, is not cited ad subeundum juramentum, but ad respondendum tali in causa decimarum, etc. & faciendum ulteriùs quod juris fuerit & rationis. If it be meant of witnesses, neither are they cited (against their will) not so much as in Testamentary or Matrimonial causes, or any other, to appear; till faith be made by the party, or by some other for him, that they take them to be necessary witnesses for to testify in that cause; and that being required, and their reasonable charges offered them, they do nevertheless without cause refuse to come, and to testify a truth. For than goeth a citation called Compulsories for them, sub poena juris to come and depose their knowledges in such a matter, betwixt such parties. So that the citation is not ad subeundum juramentum, albeit when they come, they are not to set down any deposition, but upon oath: because it is juris divini, naturalis, & gentium, quòd non credatur testi iniurato. Also the Author of this opinion should have done well, to have signified whether a Lay man being come thither without citation, might then be urged to take an oath. Therefore if the Author hereof, will hereby maintain any controversy against Courts Ecclesiastical; the issue must be, either that to make the Defendant put in his answer upon his oath, (so far forth as he by Law is bound) or to make witnesses testify upon their oath, is a thing contrary to the Laws of the Realm. But it appeareth by discourse upon the former opinion, in how many sundry causes of litigious jurisdiction, (besides Testamentary and Matrimonial) Ordinaries may hold Plea (by the Laws of this Realm) according to the course of the Queen's ecclesiastical Laws. That the ecclesiastical Laws do require this course (with the cautions aforesaid,) I think no man that knows any thing in that Law, will make doubt. A Plea is a conflict in cause of judgement, betwixt one that affirmeth, and another that denieth. There be but two ways (besides the party's confession, which is not properly called a proof) to prove any thing: that is, by witnesses, or by a public instrument, called by the Common Law, matter of Record. Now if witnesses might not be urged to testify upon oath, in any causes but Testamentary or Matrimonial; then could no Plea be holden in any other cause, when the chiefest and most usual means of proof in recent facts, be taken away. This liberty and privilege of holding Plea in the causes afore showed, and in this manner as is now claimed, 1 24. H. 8. c. 12. by the goodness of Princes of this Realm, and by the Laws and customs of the same (as a statute rehearseth) appertaineth to the Spiritual jurisdiction of this Realm, and hath been in all ages, used in Courts Ecclesiastical without impeachment, as by the Records thereof may appear. And therefore, upon any singular conceit (newly taken up by some private persons) it is not safe to be now thus questioned, and oppugned. There is an old Statute in force (as I take it) that may greatly bridle such new quirks, except men were marvelous well assured of the grounds of so great and so general an innovation. For it is enacted, that 2 15. Ed. 3. c. 3. great Officers about the King, and in his Courts of justice, shall from time to time forward, be sworn when they shall be put in Office, to keep and maintain the privileges and franchises of Holy Church, etc. Can it with any colour be intended, that the Common Law doth allow Courts ecclesiastical to hold plea in those sundry other causes, which we have hitherto proved to be ecclesiastical: and yet, that it will not allow them any means or possibility whereby to hold such pleas? For if no Lay man might be cited to an ecclesiastical Court, and there ordered to take oath in any other cause then those two: then first the party convented (if by Law he needed not) would never answer to the Libel upon his oath. Yet hath this been a course continually practised, and by Law so appointed, not only in Ecclesiastical, but also in all Courts of the Civil Law both here and throughout the rest of Christendom. Again, if no Lay witnesses may be called to testify in any other matter; then should most men in those causes, be hereby either quite foreclosed of their right; and many gross sins should pass wholly without reformation or punishment: or else all such matters must needs be proved, only by such witnesses that be of least indifferency; and therefore of least truth and credit. For those men be always most indifferent, which either be friends, or at least be no evill-willers, to either party. Now seeing every deposition must needs tend to the grievance or hindrance of the one party or the other: can it be presumed of him which loves both, and doth wish alike well unto them, that he will willingly and gratis without any process come and depose, and thereby do one of his friends a displeasure? there resteth then, that only such will offer themselves to testify; who either be enemies unto both, or friends to one, and either enemies or strangers to the other (and how can these be upright & indifferent witnesses?) or else such who be mere strangers unto both sides. but it doth most rarely happen, that mere strangers unto both, shallbe able to depose any thing to purpose: and more rare will it be, that such will offer willingly of themselves, to come in ad testificandum. Besides these and many such like absurdities, necessarily ensuing this opinion; if it be yet still stood in, that the Common law permits compulsion of lay men (whether parties or witnesses) to take oath in causes testamentary and matrimonial, but denies it in all other cases: let us consider, what may be imagined for a probable reason of such difference in proceeding betwixt causes that belong to the cognisance of the self same court. For I have read and often heard, that the Common law is grounded upon 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 law; but only the reported opinion of one man, whence all the rest have since taken it. Was it then meant, to give unto subjects an ample means of coming by their rights in these two causes: but to restrain or debar them in all other, as namely for tithes and other rights demaundable in ecclesiastical courts? or was it the purpose of that law, to have men stand convicted of most grievous crimes that be of ecclesiastical cognisance (as happily of Heresy) being neither by them confessed, nor yet proved by sincere and upright witnesses: but only by such, as do thrust themselves in to bear witness; whom not only common speech, but also sundry statutes do term Accusers, and therefore do hold at least for parties and men not indifferent? May not many other ecclesiastical causes be of as great importance & prejudice, as (perhaps) a will of goods under xl. s. or a trifling legacy, or a x. pound matter, promised with a woman in marriage? and if the law had been so, could no man hit of it from the Conquest, until our father's time, when Fitzherbert writ his novanatura brevium? was none of skill in Edw. the 1. time, to put it into the statute of circumspectè agatis: or in Ed. the 2. times, to mention it in the statute of Articuli Cleri? did none read it in the Register that understood it, before Fitzherbert? or was it not put down there, but in some late copies, as is most likely? And after he had set it down, would not the law in that behalf have been urged against sundry Bishops, that practised the contrary in K. Hen. the 8. time, & continually since, if that opinion had been holden for good law? Touching this matter, the Treatisour saith thus in effect: that the not compelling of witnesses to swear & to depose their knowledges, brings none other prejudice; but that the party plaintiff, faileth in his proofs thereby. Why? is that no small prejudice, for a man (which hath in deed a right) to have the causes go against him, through the wilfulness of witnesses, that neither will come of themselves, nor may be compelled by others, as this opinion importeth? Is not this to give cause of acquitting the wrong doer, & of condemning him that hath the very right? and doth it not nourish or at least tolerate that sin in the witness, which i●… condemned by the law of God in these 1 Levit. 5. V 1. words, viz. If any have thus sinned, that is, if he have heard the voice of an oath, & he can be a witness, whether he hath seen or known of it, if he do not utter it, he shall bear his iniquity? 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 nevertheless (being duly called) to give testimony to the truth, according to their knowledges. The Treatisour further saith: that it may be sufficient for a court ecclesiastical, to have no better means for bringing in of witnesses to testify, then temporal courts have. Truly if they might be allowed the same; I think none of them would desire any better. For when a witness is unwilling to depose, unless he be urged by process: what is more usual in temporal courts, then to have a sub-poena to charge him to appear, and to testify, at such a time & place? But because by this his saying (it seemeth) he intendeth, that the course of urging witnesses to testify (as is claimed, & always hath been used by courts ecclesiastical) containeth some repugnancy against the laws of the Realm: therefore, for cleared of that point, I will briefly show, that it is not so much as a diverse, and much less a contrary or repugnant order, unto the laws of this Realm. First for practise; what is more frequent, then for justices of the peace to bind men by recognizance, to give in evidenc at Sessions or Assizes touching supposed offenders? It would be over tedious to set down the sundry cases reported by the book of Assiles to this effect: viz. that where a deed is pleaded & denied; and process against the witnesses is desired; that it shall go out to call them to testify. It willbe sufficient to refer you, to 1 Brooke titulo testmoignes. Brooks Abridgement, where they be gathered: (yea though the action be 2 1. H. 6. 5. personal) if a deed with witnesses at it be pleaded & denied: process shallbe awarded for the witnesses per Markham & Rolfe. Be not jurours also (that be summoned to pass on trials) fined, if they appear not? and what more equity to amerce or fine them, then necessary witnesses? seeing trials can no more be made without evidence; then they may without a jury? By statute; 3 23. H. 8. ca 3. jurours for trial of Perjury, are appointed to be fined, if they refuse to make appearance. Likewise if any 4 5. Eliz. ca 9 witness be served to testify in a court of Record, and having tendered (according to his countenance) his necessary charges, do not appear: he shall forfeit ten pounds, and make further recompense, according to the loss. So that we see, it is no contrary or repugnant course to the Common laws, to have witnesses urged to testify; being there also practised. But if here it be replied, that the Common law forbiddeth it unto courts ecclesiastical, saving in those two cases: it will easily appear, that it is so far from being forbidden, that it is indeed allowed unto them, by Common law and by statutes. There be very many precedents in the Register of consultations granted, upon debating of the several matters there, after that prohibitions had been purchased: in every of which almost general words of allowance of the manner of proceed, according to the law ecclesiastical, be contained, as 5 Reg. in br. orig. fol. 56. b. & fol. 57 b. namely allowing of the proceeding juxta Canonicas sanctiones. & setting in the end of every consultation there (except two or three) these or the like words in effect, viz. Cicitè procedere, & ulteriùs facere poteritis, prout ad forum ecclesiasticum noveritis pertinere prohibitione nostra non obstante. Nay let an instance be given (if any man can do it) where of old, any such prohibition hath gone forth, and not been reversed again by consultation, yea almost where it hath gone forth at all; only for censuring a wittiesse, that refused to come in and testify, in any other matter of ecclesiastical cognisance, besides testamentary and matrimonial. And yet hath it been in continual and uninterrupted practice, for so long time as any ecclesiastical acts now remaining, do mention pleas in those courts to be holden. justice Brook in his Abridgement, both testifieth that by the Civil law, witnesses (which willbe holden indifferent) should not come till they be called, and setteth it down as a matter worth the noting; whereby may be gathered his allowance thereof. The 1 Brooke tit. Corone. nu. 220. words be these: By the Civil law, Accusers be as parties, and not as witnesses; for witnesses ought to be indifferent, and not to come till they be called: but Accusers do offer themselves to Accuse etc. quod nota. That by the Civil and Canon law witnesses may be urged to give testimony, and in what sort, will appear by this distinction. By the Civil law, 2 l. si quando C. de testibus. witnesses may be urged to give testimony, and that without distinction, whether the cause be Civil or Criminal: be Civilly or Criminally, directly, or by way of exception moved: except their persons be privileged. As by 3 l. inviti. ff. de testibus. the law Civil men of 70. years of age be in this behalf; viz. that they may not (against their wills) be urged to testify. By the Canon law, if the cause be Civil and not criminal, witnesses may be compelled (without distinction also) except they be persons privileged. Nevertheless even 4 Panor. min c. dilectorum. de testibus cogendis. privileged people may be compelled, in want and defect of other proofs; that the truth may be found out. If the 5 Alphon. Villag. lib. 3. ca 15. conclus. 12. cause be criminal, whether Civilly or criminally moved, so the action be directly moved for the crime, and not by way of exception or bar only: witnesses are to be compelled. saving that by later Canons; Clerks were not to be compelled to testify, in causes of blood. But if the question be touching a crime, by way of exception: then, either there may ensue thereupon some effect of punishment, (as upon excepting a man to be criminous, who then is to be preferred to a dignity, to a benefice, or unto orders) in which case any witness may be compelled to give testimony: or else no penalty can thereupon follow, (as when the exception is taken only to repel a man from testimony or accusation) and in this case witnesses are not compellable, except the party who excepteth, be like to be grievously thereby prejudiced; if his witnesses cannot be gotten to depose. There is nothing more convenient, then that every court should use his peculiar course of proceeding, by that law (wherein they deal) prescribed. And therefore 1 Anton. in c. quod clericis. de foro competenti. lay men's matters in a Court ecclesiastical, are to be handled according to the manner of proceeding by that law required: even as 2 Bartol. in l. 3. § fin. ff. de testibus. clerks shall and aught to be dealt with in temporal or civil courts, after the manners and orders of those courts. Seeing then, compelling of witnesses to testify, is not contrariant, repugnant, nor yet diverse from the Common law; nor by it forbidden, but allowed unto Ecclesiastical courts, according to the course of those laws; which do require it (as is showed) and no reason or equity leading to admit it rather in those two causes, then in others of the same cognisance: therefore may any witnesses whatsoever be urged to take oath and depose in Courts ecclesiastical, and in other matters ecclesiastical, than either testamentary or matrimonial. But to descend yet to more particulars: the King's tenants may 3 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 jurisdiction: neither is it there distinguished, whether they come in as witnesses, or as parties. Also they may 4 Ibidem. as others be excommunicated, for their manifest contumacy. This contumacy (after appearance) groweth only upon peremptory refusal to perform some decree or commandment of the judge, as in refusing to be sworn, or to be examined, being sworn. Seeing then for manifest contumacy the King's tenants or others may be excommunicated, and this is indefinitely set down: it will follow, that as in any other not performance of the decrees of the judge (according to the ecclesiastical laws) so in refusal to be sworn, whether he be party principal or witness, there is manifest contumacy. Vbi lex non distinguit, nec nos distinguere debemus. Particularly in matter of tithes (being neither a cause Testamentary nor Matrimonial) the 1 27. H. 8. contemners of the process, laws and decrees of the Ecclesiastical courts of this Realm, are by statute condemned: but an urging to answer or testify upon oath, is a decree of an Ecclesiastical Court, ergo, may not be contemned. The Ordinary 2 Ibidem. in a suit of tithes for any contempt, contumacy, disobedience, or other misdemeanours (upon complaint) may have the party committed, till he shall be bound to give due obedience to the process, etc. decrees, and sentences of the Ecclesiastical court of the Roalme: but requiring a parties or a witnesses oath, is such a decree. Therefore, etc. Likewise by another statute, 3 32. H. 8. cap. 7. the Ordinary may convent for withholding tithes according to the laws Ecclesiastical: therefore he may convent and cite a man Lay or other (if he be supposed to be a withholder) to answer upon his oath. For so is the Ecclesiastical law. Further, by that statute, the 4 Ibidem. Ordinary may proceed to hearing and determination etc. according to the course and process of the ecclesiastical laws: but the process and course of hearing by that law, is by the parties personal answer upon oath, if it be required; and by compulsories of witnesses to depose by oath, as is afore touched. Therefore, etc. The statute of 5 2. & 3. Edw. 6. cap. 13. king Edward (touching tithes) provideth, that both they and the costs, charges, and expenses in the suit shall be recovered before the Ecclesiastical judge, according to the kings Ecclesiastical laws: but for recovery of them, those laws require (in cases aforesaid) both oath of party and of witnesses: ergo, etc. By that statute is established, that the 6 Ibidem. Ordinary even for personal tithes may call the party afore him, and by his discretion examine him by all lawful and reasonable means, other than the parties own corporal oath, concerning the true payment of such personal tithes. Ergo a corporal oath is in other ecclesiastical causes a lawful and reasonable means: for, exceptions are always 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 predial and mixed, it is a lawful and reasonable means to put the party unto his oath, quia exceptio firmat regulam in casibus non exceptis. The statute for Uniformity of Common 1 1. El●…z. cap. 2. ad finem. prayer, authoriseth ecclesiastical judges to inquire, to take accusations, and informations, and to punish the breaches of that act etc. in like form as before had been used in like cases by the Queen's Ecclesiastical laws: but in like cases (by those laws) oaths both of parties & witnesses have been usually taken. Therefore, etc. One only instance destroys a general assertion; therefore if there were but any one instance to the contrary, an oath by law may be urged of some lay man in some other cause then testamentary or matrimonial: which being true, and the very contradictory of the opinion that is in issue (upon this point) between us, it must needs follow that the opinion is untrue, and therefore not grounded upon 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 ever learn) doth only rest upon 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 delivered by grave, learned, and wise parsonages) I must first protest before God in sinceritic of heart, that I do it not calumniandi, sed veritatis study; whereof I am something resolutely persuaded, in this behalf. I do reverence and esteem them that are contrary persuaded, being men of great learning in their profession: neither contemning nor condemning any, so much as myself, as being most privy to mine own wants, and therefore (I trust) something taught to measure myself by mine own foot. Sed amicus Plato, amicus Socrates, magis amica veritas. The copy of this writ, I find reported and set down in two several books. In the 2 Register tit. prohib. Register (contrary to the use of other precedents there) is delivered 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 conveniant de caetero, ad aliquas recognitiones faciendas vel sacramenta praestanda, nisi in causis matrimonialibus & testamentarijs. T. etc. And in the margin thus: Prohibitio ne latci conventant ad citationem episcopi, ad recognitionem faciendam. But the precedent of attachment framed upon this writ, runneth generally, without excepting so much as these two causes; even as if a lay man (whether party or witness) might not be urged to answer or testify, or to take an oath except he lust, in any cause ecclesiastical at all. For it is 1 Reg. in br. orig. fol. 36. b. tit. Prohibitiones. thus, viz. Rex vicecomiti Salutem. Pone per vadium etc. talem episcopum, quod sit coram iusticiarijs nostris etc. ostensurus quare fecit summoveri, & per censuras ecclesiasticas distringi laicas personas, vel laicos homines & foeminas; ad comparendum coram eo, ad praestandum juramentum pro voluntate sua, ipsis invitis; in grave praeiudicium coronae & dignitatis nostrae regiae; necnon contra consuetudinem regni nostri. & habeas ibi nomina pleg. etc. T. etc. And in in the margin it is entitled thus: Attachiamentum inde. Also in the Abridgement of statutes 2 Abr. Rastall cit. prohib. & consult. nu. 6. gathered by Rastall, I do find a precedent of a prohibition set down at large, mentioning a writ to like purpose to have been sent to the sheriff; but none attachment thereupon: where of those words rehearsed in the Register (though something altered) seem to be a parcel. In that point it is thus: Rex episcopo Norw. Salutem etc. Mandavimus etiam vicecomiti nostro comitat. Norf. & Suff. etc. quòd non permittant quòd aliqui laici in Balliva sua, in aliquibus locis conveniant, ad aliquas recognitiones per sacramenta sua faciendas, nisi in causis matrimonialibus & testamentarijs. Whereby these three varieties do appear, between this, and the former: First, that which is said here by way ofrehearsall, that the king had sent such a writ to the sheriff; seemeth in the Register to be set down as containing part of the writ itself, directed to the sheriff. Secondly, that which is here recognitiones facere per Sacramentum, is in the Register with the disjunctive; 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 (whencesoever he had it) seemeth to be the perfect & whole copy of the original, & therefore of more credit. It is also probable, that the gatherer of the Register did abridge out of this Writ at large, as he thought good. For in the very Writs that went forth in deed (the copies whereof be in the Register) letters (for the most part) be 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 parcel; which argueth, it was not verbatim copied forth of the Writ. Howsoever it be, the one of them must expound the other, seeing they concern one and the self same matter. In treating therefore hereof; I mind first to show, that albeit these words did carry the sense that is enforced; yet it may be, that the law is otherwise, then that they are not of that acception: & lastly how they are otherwise meant, & what is that true meaning. For the first, it is no law of necessity; being neither Statute, nor Common law. No statute: for it is not in the Parliament rolls, nor in any printed book of statutes at large, nor in sundry ancient written copies. It is no common law: for it is said to be formata prohibitio super articulis cleri ( 1 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 understood according to the mind of the Authors of this opinion) is contrary to the general custom of the Realm. For by time immemorial, all Ecclesiastical courts (without impeachment) have cited both the parties principal for answer; and witnesses also, urging them to depose by oath, in all the other several causes also, that are proved afore to be of ecclesiastical jurisdiction and conusance. I have had of long time an old Register in parchment written (as may be evidently 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 down. But there are many prohibitions unto ecclesiastical 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 entitled in the margin: Prohibitio regia de catallis & debitis quae non sunt de testamento vel matrimonto. One thing besides I find there (in mine opinion) worth the noting for this purpose; yet not observed in the printed Register. For such precedents of Original Writs, as exceeded the memory of any man, at what time they were first drawn & framed: that old book setteth down simply without any addition. But if they were of later times devised; then this mark & title is given unto them in the margin, viz. Prohibitio formata, or breve, etc. formatum. Now Rastals Abridgement giveth the like title to the writ (whereupon this controversy 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 then newly devised to meet with a new mischief. Quae de novo emergunt, novo indigent auxilio. The being of it in the Register, doth not make it of necessity to be law; for sundry of those writs were framed of late times (as may appear to any that will peruse them) upon particular men's suits (& as occasions fell forth) & sometimes (perhaps) drawn upon private suggestions of the counsel of one side, though afterward allowed. Nay in my said old written Register of writs, there is a precedent which (as I take it) goeth not now for law. For there is a direct writ to the sheriffs of London; signifying, that no Clerk (though he forfeit his recognisance of statute merchant) shallbe attached or imprisoned by his body: except there be some cause why he should not enjoy the privilege of a Clerk. Besides, it is no new or strange thing, to have some form of a writ which is set down in the Register, to be upon better advise disallowed. For I have credibly heard, that it was not long since adjudged, that in an action for trespass, done in a warren of Coneys, a man might not plead that they were cuniculi sui; albeit the Register (in that behalf) 1 Reg. fol 102. tit. de transgressione. frameth the writ so. And in the self same title (whence this form of prohibition is taken) a clause in a prohibition was 2 Reg. fol. 37. rejected by the court. For it is said in the margin, Curia noluit concedere istam clausulam in prohibition: but if it were law assured, the judges would not have rejected it. Fitzherbert (who in his book 3 No. na. br. fol. 37. G. of Nature of writs, was the first that sucked this conceit thence) in the self same book touching this rule, set down in the Register, viz. notandum est, quòd quando rex praesentat ut in iure coronae, tunc incurrit ei tempus: saith thus; now this rule is not holden for law. But it will be said, that Fitzherbert himself, and sundry that follow him since, do hold this point we speak of, for law. This (no doubt) carrieth a great presumption with it, & that worthily; for the worth of the learning & judgements of such men. Yet I will show that his saying (from whom they all since do take it) is none undoubted rule of law; & therefore theirs neither, that do gather from him. I protest before God, I will not seek after objections against his book; but take only such two (in stead of more) which I had in my mind, because they do touch ecclesiastical matters. He saith, that 1 Fitzh. ibid. fol. 269. D. at the Common law, an heretic ere he can be condemned, must be convicted of heresy before the Archbishop, & the whole Clergy of the province, & after abjured thereupon; & after that (of fresh) convicted & condemned by the clergy of that province: & this must be in their general council of convocation: & holdeth there; that at the Common law, a bishop in his dioecesse might not condemn an heretic, until 2. H. 4. 2 2. H. 4. cap. 15. did give him authority: & that then he might not be committed to the secular power to be burnt, until he had once abjured, & was again relapsed into that, or some other heresy. But neither of these points be law; & so I have heard the two chief justices, the L. chief Baron, & some other judges, & the Queen's learned council, resolve in a special consultation holden about the matter of heresy. For albeit the Convocation may (in deed) condemn an heretic, yet every 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 them all, was it then holden for law, notwithstanding Fitzh. opinion there; which was fully by them considered of. And albeit it may seem needless, yet for further strengthening of these reverend men's opinions, there is a 3 10. H. 7. fol. 17. book in the very point. For it is said, that for heresy or any point against the faith, the BB. had none other power to bring than in, but to make process against them by citations, until the Statute of Heresy, 2. H. 4. ergo, afore that statute, they had power to proceed against heretics, in Ordinary course of the law ecclesiastical. Which assertion the very Notegatherer also maketh in his title of the laws of England, yet to another purpose: howsoever in the main point that we now treat of, he stick fast to Fitzherbert. Likewise, 4 Fitzh. no. na. br. fol. 30. F. he saith it appeareth, that before the statute made pro clero in the 18. of king Edw. 3. cap. 7. the right of tithes were determinable in the Temporal court of the king; and that the law was altered at that time herein, by that statute. Whereas (in very truth) there appeareth no such matter; other than a grievance offered (in this behalf) to the liberty of the Church, which then was determined, that it should afterward cease. I know that Gooddall (writing of the liberties of the Clergy, by the laws of the Realm) concurreth in this point with Fitzherbert: for thus he writeth; It seemeth that before the Statute, the right of tithes were determinable in the Temporal court: but that statute hath altered the law. So that it may be conjectured, the one of them borrowed it of the other. But this whole doubt, whether causes of tithes, before that statute of Edw. 3. were determinable in an ecclesiastical court or no, is resolved by a Treatise nipping (in truth) wholly at the Clergy and laws ecclesiastical, and so indifferent an Umpire, as that the Notegatherer allegeth him for his purposes: therefore in this case not to be refused by them, who produce him for their witness. For that 1 Of the power of the Clergy, and laws of the realm, cap. 15. Treatise writeth thus, viz. Long after that the king's courts of his Bench & common Pleas, & also all inferior courts were put out of jurisdiction for tithes: yet nevertheless Writs of Scire facias were commonly sued in the Chancery for tithes, and the defendants were thereupon put to answer: wherefore at the petition of the clergy, and in consideration of a disme that the clergy granted 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 little afore 2 Ibidem. thus, viz. That suits for tithes shallbe taken in the Spiritual court, is only grounded upon a favour, that the kings of this realm, & the whole realm, have in times past borne to the clergy. And 3 Ibidem. again in this sort: We think that the king's courts be put out of jurisdiction for tithes, by a custom of the realm, & not by the immediate power of the law of God. Therefore (by this man's opinion) it is the common law or custom of the land; and not that statute, which made tithes of cognisance ecclesiastical. And in very truth that tithes were demandable in a court ecclesiastical before this; may appear by statutes afore that time, & by reports after; testifying that the conusance of right of tithes (at the Common law) is incident to jurisdiction ecclesiastical, as in the peculiar 4 Ca 4, 5, & 6. huius Partis. treatise thereof, is afore showed. Lastly, (to shut up this first point) a precedent of a prohibition of all other Writs that can be devised, may with least reason be said, necessarily to report what is law: for that Prohibitions are so often reversed & disannulled again, by consultations: as might have happened in this very-matter; for any thing that can be certainly known, as well as in any other such like. For the second point, that Recognitionem facere, simply and absolutely, cannot signify the answer unto the Libel of the party convented, nor the deposition of witnesses, may appear: because this form 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 needs be a gloze besides his text. Again, I find in the form of another writ in Fitzherbert, where Sacramento recognoscere, so being joined together, 1 Fitzh. nou. na. breu. fol. 31. doth signify a testification by oath. Likewise in sundry 2 Reg. in br. judic. fol. 7. a. 12. a. & 75. a. writs of the Register, recognitio per sacramentum velrecognoscere per Sacramentum, is used for a deposition, upon oath. But where Recognitionem facere (without further addition) should signify a parties answer, or witnesses deposition, I do not call to mind that I have read in any, so much as pretending to write Latin. howsoever it might be showed in other, surely in that Prohibition, which is in the Register (for avoiding many absurdities) it cannot so signify. for the Register reads it, that the Sheriff shall not permit lay men to come together in any place, ad recognitiones faciendas, vel Sacramenta praestanda, but in those two causes. So that by the disjunctive (Velure) whatsoever recognitionem facere be there: neither that may be done, nor an oath in any other cause may be taken by any Lay man whatsoever, 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 all other causes, whether they be parties or witnesses, willing or unwilling, with oath or without oath. For in the Prohibition there, no mention is made of that clause, which the attachment thereupon doth insert, viz. ipsis invitis. So that, if that precedent of Prohibition be of itself perfit: this which I have said, doth thereupon necessarily follow. But if any thing be to be understood, which is not expressed: then why may we not (for reconciling of Rastels writ & this together) safely affirm; that they be both to be understood, of recognitions and oaths given (in deed) in eccles. courts, but yet touching goods & chattels, no way concerning matter, either testamentary, or matrimonial. It cannot be truly said, that recognoscere is Sacramentum praestare, or recognitio, to be the same that Sacramentum ipsum, the oath itself. This is proved by the precedent of that very prohibition in the Register: where they are distinguished, as two several things, with a particle disjunctive. And like wise by the writ, in Rastals Abridegement. for there the recognition is forbidden to be made, per Sacramentum: & therefore not the same, but diverse things: seeing no matter is the self same thing with that; which is but his adiuncte. Then being not the same things, & both forbidden; and presupposing the interpretation that is urged: it will follow that no Lay defendant need, nay he may not recognise (though without oath) or make any answer at all, in any other cause eccles. than those two. So that there will never be issue joined; and so no plea ecclesiastical, saving in those two causes. For will any defendant (think ye) make any answer at all, either when a thing is demanded of him that he list not to yield unto; or when he is cited to be punished; if neither he need do it, nor yet may by law, though he would? But admit the defendant would be willing, & would adventure the danger of law, for answering to the plaintiff, & joining issue with him: yet how many such pleas could proceed any further; when no lay witnesses might be used, either with oath or without oath, to make recognition, or to depose? And if Rastals writ be law, & so to be understood, as is now enforced: so that witnesses may not testify in other causes then those two super sacramenta sua; their depositions (as of men unsworne) must needs be merely void, by all laws divine & human. So that if the prohibition be not meant of holding plea touching goods or chattels in other causes, it must needs sort to this point; that in no cause (besides those two) any lay person may (by law) though he would, come to answer or testify, with an oath or without an oath, in a court ecclesiastical. But this is absurd & unreasonable to imagine, and willbe so confessed, even by those who stand in this opinion: and therefore that must needs be also absurd, whereupon it necessarily followeth. For omne verum vero consentaneum: and, by the rule of reason we know, Ex veris possunt nil nisi vera sequi. Now for proof that it is absurd and contrary to law, thus I proceed: 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 record or witnesses must be used, to prove the intention of the plaintiff: But in sundry other causes then those two, pleas (by law) may be holden in a court ecclesiastical; (as I hope) manifoldely and sufficiently, is afore showed in this Treatise: and therefore in those other causes, Lay men may, and aught to answer and testify: which is the contradictory of that, which doth necessarily follow, upon this their interpretation. So that this conclusion being true, the contradictory of it is untrue; and then that untrue also, whereupon it is necessarily consequent. For (as I said afore) I trust no reasonable man will conceive, that only ecclesiastical men will prove deteiners of such ecclesiastical duties, and culpable in those offences, that are proved (afore) to be of ecclesiastical conusance: nor yet that they only shall always happen to be present, and able to bear witness, in all those other several ecclesiastical causes, afore touched. Furthermore to make it more plain, and to deliver it in severalty; recognitionem facere cannot signify (in this place) the answer of the party convented. For if a lay man against whom there is cause of action, upon some other of the matters ecclesiastical list not, nay if he need not, and which is more, if (by law) he may neither come to the place, nor (being come) may answer 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 answer, but not by oath in such other cause: I reply again, that either the Register hath not the writ aright printed, or else this no way can be so meant. For by the disjunctive (vel) when the proposition is negative and prohibitive, as it is here, both the one and the other is forbidden to be done. 1 Arg. l. 13. cùm ita ff. de rebus dubiis. A disjunctive argueth several things, that had need to be expressed by several words. And by like reason it cannot be meant of witnesses depositions: for if the party convented shall be content de facto, (though he be not compellable by law, as this opinion presupposeth) to deny the intention of his adversary; then no Lay witness might in any such other cause ecclesiastical, be used, either to depose with oath or without oath; because both be forbidden, and so no plea in any such other ecclesiastical cause could be holden, which is afore proved to be otherwise: and therefore consequently, that is not the meaning of these words of the writ, which is (by 1 Fitzh. nou. na. breu. fol. 41. a. Fitzherbert and others that follow him) enforced. Touching the writ of attachment thereupon whether (as it is set out in the Register) it may be holden to have been an original writ at the Common law, drawn (at first) by the gravest advise in the Realm; & to be so perfit, as that nothing (further than is expressed by the words) need therein to be understood to come by the true meaning: may partly be gathered by that which followeth. First it is said, pone talem episcopum, not using letters for his name, as in most of the other writs. Next, a Bishop (who in that he hath a Barony, is presumed to have temporalties whereon to be distrained) is here appointed to find vadios & plegios. Thirdly, it hath laicos homines & foeminas; as if women were not homines; seeing homo is the common gender. Fourthly, though the prohibition (whereupon it is framed) forbiddeth both recognitions to be made, and oaths also to be taken by lay men: yet the attachment wholly omitteth the making of recognitions. And yet how many oaths soever should be given if none answers or depositions do thereupon ever follow (which too the opinion that we impugn, meaneth by recognition) what colour of prejudice doth or can grow, that either Prohibition or attachment, should need to be awarded? Fiftly, neither by Civil nor Canon law; neither yet by practice; doth any summons or citation go out of an ecclesiastical court, in such sort, as this attachment assigneth, to be a prejudice unto the royal dignity, viz. ad comparendum coram eo, ad praestandum juramentum, pro voluntate sua; ipsis invitis. For it were a grievance given (even at the Canon law) if an Ordinary should either call any being not a party or necessary witness in some matter depending, or should call witnesses against their will, not being first required, and having their charges offered; or if he should do it, when there is no cause, but 2 Pro voluntate sua. for his own pleasure, as this writ implieth. Sixtly, the proceeding hereby condemned, is said to be done; in praeiudicium grave, coronae & dignitatis nostrae regiae. But if no matters be thereby drawn from the king's courts, as in deed none be (though you follow the interpretation thereof by some enforced) than what prejudice cometh to the crown? For, though lay men be urged to depose upon their oaths, in all other causes beside, that be of Ecclesiastical cognisance; what damage or detriment doth the Crown and dignity royal thereby sustain; more than it doth by their compulsive deposing with oath, in causes Testamentary and Matrimonial, which this opinion admitteth and alloweth of? For if none other causes Ecclesiastical than those two, could conveniently be proceeded in, nor any remedy could be given by a court Ecclesiastical, for want either of the parties answer, or witnesses depositions upon oath: yet could not Temporal Courts (as the Law standeth) give any more remedy in them. And so no prejudice to them or to the Crown, that Courts Ecclesiastical do proceed as they do, to the determination of such causes. Nay rather on the other side it were a prejudice to the Crown, that subjects should offend, and no good means should be found by Law to punish them; or to have a right, & yet no way for them to come by it. Seventhly, that which is there condemned, is said to be 1 Consuetudine praed. usi fuerimus semper libettatibus huiusmodi. Prohibition in Rastell. tit. Prohib. nu. 6. contra consuetudinem regni nostri. which doth strongly argue, that urging parties in other Ecclesiastical causes to put in their answer upon their oaths, or witnesses so to testify; is neither by that form of Prohibition forbidden, nor by the Attachment thereupon, meant to be disallowed. For (first) the custom of divers Courts Temporal, requireth parties answers upon oath; and likewise alloweth Writs of sub poena and other process (in sundry cases) to compel witnesses to come in, and to testify their knowledge. And again; in Courts Ecclesiastical, the custom hath always been, to require oaths of parties and witnesses (though otherwise unwilling) in manner as is a fore touched. Which may appear, both in that the Laws Civil and also Canon, which they deal by, do require it: and that no books of Acts Ecclesiastical (as I am verily persuaded) can be showed, whether of old or later times; by which it may not appear, that this course of compelling parties and witnesses to take oaths, in other causes then those two; hath been used, so often as occasion hath required. And therefore not this, but some other manner of proceeding it was; which by the writ of Attachment is meant, to be contra consuetudinem regni. Lastly, this form of Attachment, mentioneth not so much, as excepting of compelling to take oath, in causes Testamentary and Matrimonial; albeit the prohibition have that exception. And therefore for avoiding of jar betwixt them, something must necessarily be understood, to have been at first in the Writ itself (whereof this is a minute) further than is here expressed. And why shall not then, the clause de catallis & debitis be understood therein, aswell as this other; seeing so strong probabilities do lead it, and so many absurdities and inconveniences be thereby avoided; which the late enforced interpretation doth (necessarily) infer with itself? Therefore we may conclude this second point: that to debar Courts Ecclesiastical, in any cause of that jurisdiction, from exacting parties convented to put in their answers upon their oaths, or from compelling such witnesses (by censures) to testify, who being required, and their necessary charges being offered, do nevertheless refuse to testify a truth: 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 words of the writ, whence these controversies have flowed. It is therefore to be remembered, that it was very usual for men in those days, at making of any contracts, whether in matters of Lay fee or others, for their more security, to make faith or oath, for performance. This they either did privately, for confirming of deeds drawn betwixt them: or else (for more readiness of dispatch and better testimony) they 1 Register. pag. 37. would recognise one to another such contracts, with faithful promise (called fidei praestatio) and sometimes with 2 Register. pag. 43. monstravit nobis Matilda. corporal oaths voluntarily taken before Ordinaries, and therefore procure an Act to be made by a public Notary. Then, if either paertie failed in performance, he was by Process Ecclesiastical called before the Ordinary, as to answer for an Act done afore him, or fidei laesione: which failing, being confessed or proved, the offender was enjoined grievous penance, and (no doubt) oftentimes compelled by censures, to keep his faith or oath, by satisfying of the other party. This course being so ready at their own doors in every Dioeces, and of so speedy execution; for the great fear then carried (by most sorts of men) unto the censures Ecclesiastical, and for grievousness of the penance otherwise; grew to be very usual in every place; as may partly appear by the often disputes upon prohibitions brought hereupon (even after this writ was framed) that are here and there mentioned in the books of the Common Law, and are afore touched by me in 1 c. 8. huius part. the 8. Chapter: and partly may be showed by sundry old evidences and instruments, recorded in ancient legers, and in Acts of Ecclesiastical Courts, before the time of Edward the second, which I have seen and perused. Namely I have ready to be showed, a solemn contract in writing made almost 400. years agone: wherein the Earl of Arundel, upon a concord then made for himself and his heirs, promiseth and granteth to the Archbishop of Canterbury and to his successors, certain red dear and fallow of both seasons, yearly for ever, to be at a certain place delivered for the Archbishop, out of the forest of Arundel. For the observation whereof, he there bindeth himself and his heirs, by a corporal oath taken; and further granteth, that if he or they fail herein, than the Archbishop shall excommunicate them so failing, and keep them under the same censure, till the purport of that agreement be performed. I have likewise to be showed, an old written book of 2 23. Ed. primi. Acts Ecclesiastical, sped in the Audience Court of the Archbishop of Canterbury in the reign of King Edward the first, wherein sundry suits pro laesione fidei of that nature be contained. The thing which gave colour hereunto, was the pretence of avoiding and punishing the sin of Perjury. For the Canon Law saith thus: juramenti 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 3 Panorm. in c. cum sit. de foro competenti. the Canon Law) the Action be touching an oath in respect of the Court Penitential, or be commenced for release of the bond of such oath, so that it respect not principally the commodity of some Lay person: or if it be doubted, whether the oath be lawful or not, be to be kept or not; then the cognisance of it doth belong to a Court Ecclesiastical. And in 4 Panor. in c. qualiter. el. 2. de accusat. another place thus: When the party to be damaged by violation of the oath, is such, as cannot use Action: or when enquiry is made for the correction of the Crime; then may the judge Ecclesiastical inquire even against a Lay man not observing his oath. Insinuating, that in all other cases, violating of oaths by that Law belongeth to the cognisance of a Temporal Court. And the statute also of circumspectè agatis which alloweth punishment by the Court Ecclesiastical for breach of an oath, but distinguisheth not there, in what causes or how far, did give herein some encouragement. So that the mischief that grew hereupon was this: that most Lay contracts of goods and chattels were by this means drawn into Ecclesiastical Courts, though (in truth as I think) contrary to the Common Law of the Realm. For if the principal matter be of Lay conusance, for confirmation whereof such faith is made, or oath taken; then (according to the distinction 1 Cap. huius partis 8. afore proved out of the Common Law) it is not such faith or oath, that will change the authority of the Court, to make it simply of Ecclesiastical jurisdiction. For so 2 Bracton. lib. 5. cap. 9 Bracton writing in the time of Henry the 3. testifieth, and withal giveth good light and evidence, to the interpretation hereafter following, of those words of this Writ: jurisdictionem regiam non mutat fidei interpositio, sacramentum praestitum, nec spontanea partium renuntiatio, quamuis sibijpsis in hac part praeiudicent per consensum: & illud idem dicendum erit de debitis & catallis, quae non sunt de Testamento vel Matrimonio, vel eorum sequela. It was 3 Gravam. 64. one of the hundred Grievances which the German nation complained of: that Civil causes and contracts, by pretence of faith or oath given, were drawn into Ecclesiastical cognisance. Therefore to meet with this mischief, and to cut off the occasion, this writ of Prohibition seemeth to have been framed, viz. to forbid Lay men in any place, either before Ordinaries, or in private amongst themselves, to make any recognitions or acknowledgings: whereof? of debts, or of contracts touching goods and chattels by their faiths or oaths taken, in any cause whatsoever, besides Testamentary or Matrimonial. For in these two causes neither then, nor at any time since (as in part is afore showed) was it unlawful, for Lay men to make acknowledgement and depose in a Court Ecclesiastical upon oath, though it touched goods and chattels. In matters Testamentary, as in Probates, and in legacies of goods and chattels in demand; in matter of inventaries, and of accounts of the deads' goods and chattels. In matters matrimonial, as in money promised with a woman in marriage, as is more fully showed in the 3. Chapter. And so this writ is not simply prohibitory of all Recognitions and Oaths (by lay men) in Ecclesiastical Courts, excepting those two causes: but only forbiddeth Recognitions and oaths in other causes made or taken, that do touch debts, goods and chattels, or other such lay contracts, and all citing of parties to take them, or which have taken them, and all citing or compelling of witnesses to depose touching such contracts about goods and chattels: though confirmed by faith or oath of the contractours. Nay there is strong evidence to be brought; that not many scores of years, before the 9 of Edward the 2. (when as Articuli Cleri were enacted, whereupon that Prohibition is said to be framed) the Clergy both used, and thought they should have wrong to be barred from hearing all breaches of faith and periviurie arising of, or touching what cause soever: so they dealt not with the very Temporal causes themselves whereupon such faith or oath was confirmatory. If (saith a Constitution 1 Constit. aeternae sanctio. de poenisin Concilio apud Lambhith sub Bonifacio Anno 1260. tempore Henrici 3. Provincial 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 perjury, but of chattels: not of Sacrilege, or disturbance of liberties Ecclesiastical, but of trespasses of his subjects, the correction of which, he affirmeth doth belong to him: then let the aforesaid Prelates make known unto him, that they neither take cognisance, nor mind to do, touching Patronage, chattels, or other things belonging to his Courts: but of tithes, sins, and other causes mere Spiritual, belonging to their Office and jurisdiction. Whereby we first gather, that the Common Law herein was not then resolutely agreed upon; in that they conceived, this allegation touching faith broken and perjury, would satisfy the King and his Courts. And secondly that the King's Writs of prohibition and attachment (in this behalf) were then awarded, but for faith and oaths made, concerning goods and chattels, because by that pretence, the cognisance of chattels was drawn into Ecclesiastical Courts. I do find in an old written parchment book of statutes, reaching down but to H. 5. death; many matters of mark contained amongst the statutes. As among others there be, regiae consuetudines apud Claringdon promulgatae. which (as is there rehearsed) were by K. Henry the second, propounded in Parliament unto Thomas Becket, than Archbishop of Canterbury long before that Provincial constitution. Most of which, he did condemn by his censure, as prejudicial to the liberties of the Church: And this is said there, to have been the original cause, first of his banishment, and after of his death. But some of those customs, Becket did tolerate; whereof this is one, serving to our present purpose, viz. Placita de debitis, quae fide interposita debentur, vel absque interpositione fidei, sint in curia regis. Hoc toleravit. At the end of that Treatise it is said; that four years after Beckets death, viz. 1174 of Christ; the King repenting himself, did together with the Prelates and great-men of his kingdom, abrogate and condemn those evil and unjust customs; appointing only those that were good, to be thenceforth observed. Yet (saith he) some of those that were so abrogated by the king, and condemned by the Church; are still observed in the kingdom. If this be with the king's knowledge and allowance, let the King look to it, for God knoweth it. The chief cause why I note it, is this: that it was even then thought a Custom of the Realm; and by Becket himself allowable and tolerable; that Pleas of debts, though faith or oath were given for their payment, belonged to the King's temporal Courts. Next is, that hence may be gathered, how the Recognitions and oaths forbidden to be made in Courts Ecclesiastical by the Writs which we here dispute of; are to be understood of such of them only, as concern debts or chattels; saving that in causes Testamentary and Matrimonial only, they may be there made and acknowledged, albeit they concern debts and chattels. It may also appear evidently, that the Recognitions forbidden to be made in Courts Ecclesiastical in any cause saving of Testament or Matrimony, aught to be understood of Recognitions and oaths about debts and chattels. For lightly in every 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 Ecclesiastical, but in none other. Bracton (who wrote before this writ was framed) saith 1 Bracton lib. 5. cap. 2. thus: Si Clericus petat versus Clericum vel Laicum, debitum, quod non sit de Testamento vel Matrimonio, sequi debet forum Laicale. And 1 Ibidem. again a little after: Non pertinet ad regem cognoscere de catallis, quae sunt de Testamento vel Matrimonio. Likewise in a precedent of a prohibition, he 2 Ibidem. lib. 5. cap. 3. & cap. 10. & 13. useth this addition: Nec teneatis placitum in curia Christianitatis de catallis vel debitis, quae non sunt ex Testamento vel Matrimonio. In the 3 Prohib. & Consul. nu. 3. & 7. book 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 4 Consultat. 2. copy 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 etc. Yea, and in 5 Register. Ibidem tit. Prohibitiones. the Register it is set down more plain a great deal in a copy at large of a Prohibition, upon the same point, and with the same causes excepted, being the next following to that which we (principally) do here treat of. For the very word of Recognitio before an Ordinary, is there used 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 recognovit 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 solvere recusavit, (quanquam huiusmodi recognitio Testamentum vel Matrimonium non tangat) etc. excommunicationis sententiam fulminastis etc. vobis prohibemus, etc. And the very like words, to the same effect, and with like exceptions, are there used in the five precedents of Prohibitions, next in order following. And in the old written Register (afore spoken of) there be many copies of Prohibitions set down; in all which whensoever that exception of causes Testamentary and Matrimonial is mentioned, that clause de catallis & debitis quae non sunt de testam. etc., cometh in with all. In the printed Register among the Writs judicial, we have these 1 Regist. in Br. judic. fol. 38. a. words: Quare secuti sunt placitum in curia Christianitatis de catallis & debitis quae non sunt de Testamento vel Matrimonio. And again: 2 Ibid. fol. 39 a. cum traxisset in placitum in curia Christianitatis de catallis & debitis, quae non sunt de Testamento vel Matrimonio etc. prohibitionem impetravit. We have further, in the Register of original Writes, to this effect: 3 Regist. in Br. origin. fol. 57 b. Quatenus ad correctionem animae & non placita de catallis & debitis concernunt, etc. licitè ex officio procedere poteritis, etc. And in divers other Writs of 4 Regist. in Br. orig. fol. 46. qua ter. & 49. a. Consultation there, to this purpose: Prohibitionem nostram impetravit, asserens se trahi in placitum in curia Christianitatis, de catallis & debitis quae non sunt de Testamento vel Matrimonio etc. Inso much, that this 5 Regist. in Br. origin. fol. 46. b. & 49. a. in fine. Writ is entitled as by his name thus: Prohibitio nostra, or regia de catallis etc. I find a Consultation in the 6 Regist. in Br. orig. fol. 54. a. Register, where is rehearsed: that certain Lay men of Coventree were by compulsories, called into an Ecclesiastical Court, as necessary witnesses (in truth) in a cause of legacy; yet they to avoid appearance, and to obtain a Prohibition; suggested that they were drawn into the Court Christian to testify, about chattels and debts, not belonging to testament or Matrimony. Now if that meaning (of the Writ in controversy) which we here impugn, were true; what needed they to have mentioned chattels and debts at all? for then, the other part of their suggestion (though false) had been (in Law) sufficient, to have obtained the prohibition, viz. That they were called, against their wills, to testify in a Court Ecclesiastical, touching matters, being neither Testamentary nor Matrimonial. But seeing they were driven to plead both: it argueth, that citing men to take oaths, 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 delivered, is the true interpretation thereof. The very writ itself set down by 7 Abridgement of the statutes. Prohibition. 6. Rastall at large, doth establish this interpretation: Rex Episcopo Norwicensi etc. salutem. Cùm cognitiones placitorum, etc. super turatis Recognitionibus Laicum feodum contingentibus, & rebus alijs ac causis pecuniarum, & alijs catallis & debitis (quae non de testamento vel matrimonio) ad coronam & dignitatem nostram pertineant etc. for, if jurata recognitio (being in the same writ) should signify a diverse thing: then must we needs say, that the recital speaks of a matter to be remedied, and yet the remedy given is of another nature, and so not pursuant to the former. Furthermore, the tenor of that writ runneth to the Bishop of Norwich, and to his Archdeacon's, &c. yet those words thereof, (whereupon the doubt riseth) are not directed to them, as if they should be charged thereby (which had been most apt, if any such thing had been meant) not so to cite lay men, or that they should not charge them with such oaths, or that they should not suffer such Recognitions to be made afore them: but it is there said, that the King had commanded the Sheriff, that he should not permit, quod laici conveniant in aliquibus locis ad faciendas recognitiones, etc. which use of the words ne laici conveniant, and the changing of the persons, argue strongly that it was meant of such recognitions of debts and chattels, and such oaths, as Lay men of themselves were willing enough to make; and therefore had need of such restraint, by the Sheriffs authority. which their voluntary performing thereof, without urging by censures; is also argued by that which is there said of the Ordinaries accepting at Lay men's hands of such things: viz. vobis praemissa, & alia consimilia, in partibus illis, acceptantibus. This of their willingness without constraint, is also proved by the words immediately following the point in controversy, viz. & ne super huiusmodi feodis, debitis & catallis, coram vobis & alijs judicibus Ecclesiasticis, in praeiudicium jurisdictionis nostrae regiae ad coronam & dignitatem nostram spectantibus, subire praesumant. Whereby (as in a thing needful) Lay men are charged not to dare or presume in any other causes before Ordinaries to make any such Recognition or oath, touching goods or chattels, prejudicial to the Crown: by which words, this our interpretation is expressly established. Now if those words in the copy of the Prohibition and of the attachment in the Register shallbe objected against this, viz. Ad citationem talis Episc. And those, Ipsis invitis: I answer, that for many absurdities thereupon following, which are afore noted; these words cannot stand with the writ in Rastall, nor with the interpretation that is by some of late urged. But understanding them (as I declare) of citations and compulsories to make answer or testify by oath, concerning chattels and debts, not belonging unto matter testamentary or matrimonial; maketh all most aptly to agree together. For whether we say, that Ordinaries then used to cite all in general of their Dioecesse, who had made promises or contracts in lay causes, by word only, (or by writing) to come and confirm them, by their faith given, or by their corporal oaths before them, for better confirmation and security of the bargain, as some wise and learned have thought very 1 Pro huiusmodi rebus (per vices) trahitis coram vobis. Prohibition in Rastall, ubi supra. probably: or whether they be meant of citing parties to put in their answers by oath concerning such chattels & debts in demand, confirmed by faith or oath given; or of witnesses being not willing to depose in those causes, or of all these three: it is assured, that he, who findeth himself grieved thereby, willbe un willing: and that albeit the pretence of such Ordinary be to punish the sin only; yet hereby (per obliquum) the cognisance of lay contracts willbe drawn to eccles. courts, and so the King's courts (unto which they properly belong) shall thereby be encroached upon, & prejudiced. But this cannot be truly said, touching matters of mere ecclesiastical cognisance, being neither testamentary, nor matrimonial; though lay men be urged by courts eccles. to answer or testify in them upon their oaths. Besides, what damage cometh to the cause now by us defended; if we say, that the absurdities following upon such their interpretation being not a fore well weighed, & he out of whose copy the Register was printed, understanding it as they do; was content to add those two clauses, for an explanation of the said writs, according to his own meaning; or that he was willing they should so be understood? which perhaps induced him to make such a brief abridgement, of so long a writ. For it doth not appear, that before the imprinting, it was perused & allowed by any the judges then being; or by any others, deputed by public authority, for the reviewing and correcting of it. No doubt if it had been (that I speak of nothing else) so many gross errors in the Latin both against congruity & all sense, as in every leaf (almost) of the copy which the Printer followed, are to be found; could not have so escaped, without controlment and amendment. But the former words set down by Rastall at large in the writ in self (where neither of these last recited clauses are to be found) are too clear in this point, to be dimmed by any such light colours. But if hereupon it be perhaps granted (as the author of the Treatise doth) that witnesses may take oath & depose willingly, in other ecclesiastical causes, at the request of some of the parties: I must then call to their mind, that I have showed afore, that (following their own interpretation) they may not, though they be willing. Yea though witnesses might, if they were willing; how can a reasonable man intend, that the party to be sued, will come in at all, but much less answer, if he may not be compelled unto neither: viz. neque ad recognitionem faciendam, neque praestandum sacramentum: as Fitzherbert (in his natura brevium) also doth understand and read it. And the words reach unto all lay persons, not distinguishing a party from a witness. Again, by that their interpretation of recognition & oath, they could never have such witnesses that be indifferent, as in part is afore touched. For if witnesses may not be urged to swear or to answer further than they list themselves; then will they only answer to the matters propounded by him who produceth them, and will refuse to answer the Interrogatories propunded by the other party for his defence, by whom they were not requested to come. Which course (upon the matter) taking away all testimony, that aught to be indifferent for either party, in such pertinent matters as are to be demanded; is contrary to the law of God, of nature, of nations, and to the very quality of a witness. Decius saith: 1 Decius in l. 2. C. de edendonu. 43. Si testis deposuit pro una part, & interrogatus pro alia noluerit respondere, illi fides adhiberi non debet; quia praesumitur supprimere veritatem. And so the course being most unreasonable, that whereupon it followeth, must needs be also very absurd, and against justice. By all which premised discourse, it is made (I hope) manifest, whether Fitzherbert had good ground out of that form of Prohibition and attachment to 2 Nou. nat. breu. fol. 41. litera a. gather; not only that Ordinaries must express a particular cause in all their Citations: but also, that if they express any cause at all in the Citation, that (it seemeth by that writ) it must be a cause matrimonial or testamentary. For seeing they have none other means besides Citations to summon men to their Courts: What is this latter collection (built but upon a doubtful seeming) else then an asseveration implied; that none other of the causes (afore) proved to be of ecclesiastical cognisance; shall ever be dealt in, by any court ecclesiastical? and so (upon the matter) in no court at all; for that temporal courts be out of jurisdiction in those matters. Which how it may be defended from gross absurdity, I would gladly learn from any, that patroniseth this opinion. But if the law were so in deed, that none should be called into ecclesiastical courts, but for those two causes: I marvel what the Preshyteries (so much doted after especially by sundry favourers of this interpretation) would do here in this Realm, when their Consistorial power should be so lopped, that they could not call any man before them, but either in testamentary causes (which they make in other men's dealings to be mere Civil causes) or matrimonial, many of which also they now seem willing to abandon, as temporal matters? for they should be driven, either to be kings of molehills; or else to preach in the most vehement vein they have, against that law and those magistrates, which (in such sort) would restrain them: as if they were both Antichristian, at least for hindering and so impounding of the pretended government of Christ: that thereby they might at length be set at liberty, to deal in their Consistories against all crimes whatsoever, according to their own platfourmes. Yet herein they should deal very unequally; because they will not now suffer that, under this government; which themselves would practise against crimes in a far more ample, and peremptory manner, then either now is done, or were meet to be suffered. In the books of the Common law I find also some cases, that give strength to this interpretation. For an 1 M. 44. E. 3. fol. 32. attachment upon a Prohibition was sued, because they sued in a spiritual Court for hay and money, which touched neither matrimony nor testament: and after upon showing the Libel, which proved that it was for tithes and oblations, a consultation was granted. Likewise 2 M. 38. H. 6. fol. 14. a Prohibition was sued forth of the Chancery (directed to the justices of the common Pleas) to make an attachment, because the defendant had sued the plaintiff in the spiritual court for debt, which did not touch matter of matrimony nor testament, whereof the cognisance belongs to the King's Court: and thereupon a prohibition was granted thence. Wherein it is worth the noting, that Fitzherbert (in his 1 Fitzh. Prohibition, nu. 5. Abridgement) leaveth out these words (for debt) contrary to the book itself at large, and also 2 Brooke. Prohibition, nu. 6. to Brook. I will not say it was to give colour to his opinion in his Natura brevium, as if he meant to have it sound, that no matter at all, but either matrimonial or testamentary, might be sued in court spiritual, whereas by these two reports it may appear, that Prohibitions did not lie in this respect for that the parties were sued and called into the ecclesiastical court against their wills in any other cause whatsoever then those two: but only, for suing there for chattels & debt, which did touch neither matrimony nor testament. Whereof may be gathered, that ever since the first framing of this writ, either none in this point hath known the law, until Fitzherbert (for non est instandum inproposito:) or else those words do carry another meaning than is now fathered upon them: which that they do both in the affirmative for ours, & negative against theirs (I hope) is somewhat plainly proved. 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 lay men, & for not urging them to take oath, in any other cause ecclesiastical whatsoever, but either testamentarte or matrimonial, are void of all ground of law: nay are contrary to Statute law, to Common law, to practise for time immemorial, and also unto reason in some sort. CHAP. XIII. That judgement of heresy still remaineth (at the Common law) in judges ecclesiastical: and that the Proviso touching heresy, in the Statute, 1. Eliz. cap. 1. is only spoken of ecclesiastical Commissioners thereby authorized. THe two other opinions remaining, that respect matters, handled by Ecclesiastical jurisdiction (and come next to be treated of) for the affinity of them, and because they both depend upon one and the self same grounds, I purpose (briefly) to handle together: viz. whether the judgement of Heresy now lieth rather in the Common law, then Ecclesiastical: and whether nothing may at this day be adjudged heresy, but according to the statute primo of her majesties 1 1. Eliz. cap. 1. reign: For in the true understanding of that statute, the decision of these two opinions will wholly 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 jurisdiction Ecclesiastical, proceed to the condemnation of an heretic: and therefore (seeing all former statutes made against heretics, stand now repealed) he gathereth; that no heretic may be dealt with, but according to the said statute, made in the first year of her majesties reign. This opinion (it may be) he gathered out 2 Fitzh. in nova nat. br. fol. 269. D of Fitzherbert his Nova natura brevium: yet I think rather, it was his own conceit, both because he doth not allege Fitzherbert for it; and for that Fitzh. leaveth (even at the Common law) authority in the whole Convocation of a Province, to condemn an heretic, albeit he there also hold, that (at the Common law before such statute) a Bishop in his dioecesse, could not so condemn. But I have showed in the twelfth chapter hereof, by very great and good opinion, the law in this point to be mistaken. For proof that it is so, I also touched it something in the 8. chapter. For in the Preamble of the statute it is thus contained: The 3 2. H. 4. cap. 15. dioecessans of the realm then complained, that they could not by their jurisdiction spiritual (without aid of the royal Majesty) what? not at all? Nay, but not sufficiently correct, nor restrain the malice of heretics: Why? because they wanted authority at all to deal with them? No, but because the heretics go from dioecesse to dioecesse, and will not appear before the dioecessans, but contemn the keys of the Church, and censures of the same. So that, had it not been for their fugitivenesse, their refusing to appear, and contempt of the keys; the ordinary dioecessans had jurisdiction spiritual, to correct and restrain them. In which respect, and for better assistance of their former jurisdiction, it was then first provided, that heretics should be attached and imprisoned. Other authorities out of Statutes, I there (in the eight Chapter) alleged also to this purpose. The words of the Statute made primo of her 4 1. Eliz. cap. 1. Majesty (from which this second opinion is gathered) do make the matter clear; that nothing thereby is meant, but that Commissioners for causes ecclesiastical, according to that Act (termed by the common people the high Commission) shall not have authority to adjudge any matter or cause to be heresy, but only such, as hath been so adjudged, by the authority of the Canonical Scriptures, or by the first four general Counsels, or by any other general Council; wherein the same was declared Heresy, by the express and plain words of the Canonical Scriptures. So that the jurisdiction of Ordinaries, and of the Convocation, still remaineth as it did afore at the Common law. But I muse greatly what colour or pretence he could have, to gather the first of these two opinions out of the aforesaid words: for doth he or can he think, that the ordering, determining or adjudging of a matter to be Heresy by the Commissioners ecclesiastical (there spoken of) is a judgement at, or according to the course of the Common law, as the Common law is taken in usual signification? Or shall it be imagined, that wheresoever any matter by occasion comes in to be mentioned in a statute (as for 1 13. Eliz. c. 12. example, naming matters of faith, mentioning errors in doctrine, or the doctrine of the Sacraments) that the determination of all such points, and what and how many special matters, are contained under those general heads whatsoever; shall (by reason of such incident mentioning of them in a statute) be put over to the judgement of a jury, or to the determination of Temporal judges? What other may conceive, I know not; for my part, I must take it (till I be better informed) to be so simple a conceit, as is worthy rather to be dismissed with laughter, then to be confuted with further reason. CHAP. XIIII. That by the Statute her Majesty may commit authority, and natural borne subjects may take and use in Ecclesiastical causes, attachments, imprisonments, and fines. THe next opinion that comes to be treated on, is: Whether the Queen's Majesty by her letters patents under the great seal of England, may authorize the use of any other process in matters ecclesiastical, then by citation, as by letters missive, attachment, or such like? whereunto I add the other two of the same author, & depending upon the same string: whether her highness may so authorize the use (in matters ecclesiastical) of any other coërtion or punishment, as by fine or imprisonment? These opinions if they be not well grounded upon law, seem to me to touch her majesties prerogative royal, and supreme government (that was yielded unto her highness by statute) very deeply; whosoever be Author of them. And if this authority that is hereby impugned, be (in truth) a pre-eminence united and annexed to the Imperiallcrowne of this realm, by Parliament: and if he be a man of any quality, (so that he hath taken the oath of Obedience) let him use good advisement, how it may stand with such his oath and allegiance. They are pretended both by the Treatiser and the Notegatherer to be grounded upon 1 Magna charta, cap. 39 these words of Magna charta, viz. No free man shall be taken or imprisoned, or be disseised of his free hold or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed, nor we shall not pass upon him nor condemn him, but by lawful judgement of his peers, or by the law of the land. Whereupon the Notegatherer also doth collect, that none may be attached, but such as be first indited. But the end why this law was made, and the time when it was made, are needful to be considered. The end was this, that the Kings of this realm should not challenge an infinite and an absolute power to themselves, (as some kings elsewhere did, & yet do) without judgement & lawful proceeding, to take away any man's liberty, life, country, goods or lands. And it was at such time when the kings themselves thought, that jurisdiction ecclesiastical, was not (in right) no more than it was in fact at that time belonging to the crown: therefore in that it is here said, We will not pass upon him, nor condemn him, but by lawful judgement of his peers, or by the law of the land; it is manifest, that the words have no relation to jurisdiction ecclesiastical: for that which was done by that jurisdiction, was not (at that time) taken to be done by the King or by his authority: and the laws that ecclesiastical judges practised; were not then holden to be the Laws of the Land, or the King's laws; as (since the lawful restitution of the ancient right in that behalf to the crown) they be often called, The 2 1. Eliz. cap. 2. & pass. alibi. Kings or the Queen's ecclesiastical laws. In the Preamble 1 25. H. 8. ca 21. of a statute made in king Henry the eights time, it is to this effect said: that the people of this Realm, have bound themselves by long use and custom, to the observance of certain man's laws (besides those which were ordained in this Realm) not as to the observance of the laws of any foreign Prince, Potentate, or Prelate: but as to the accustomed & ancient laws of this Realm, originally established as laws of the same, by the sufferance of Kings, and by consent and custom of the people, and none otherwise. And a little after, mention is there made, of such laws human, induced into this Realm; by the said sufferance, consents, and custom. This is brought to prove; that the Parliament or such as it shall authorize, may dispense with those, and with all other human laws of this Realm: for so they be termed. Whereupon, in the body of the statute, ensued that authority, which the Archbishops of Canturburie have, of granting faculties, etc. And therefore the human laws (spoken of in the Preamble) are those Canon laws; which by such sufferance, use, and custom are (now) as the accustomed and ancient laws of this Realm, originally established as laws of the same: howbeit by the means aforesaid, but induced into the Realm, and not here at first made nor ordained. There is 2 5. Eliz. cap. 25. another statute also, made in her majesties time; in the Preamble whereof, they be called the Ecclesiastical laws of this Realm. So that when whole Parliaments do advow them to be laws of the Realm, yea & that for proof of another point perhaps doubtful: we may then well make but light account of all the Treatisers exclamations to the contrary, who calleth them strange laws and foreign laws &c: so long as we mean but of such Canons, as have been of long time used, and be 3 25. H. 8. ca 19 not to the damage or hurt of the Queen's majesties prerogative royal, nor contrariant or repugnant to the laws, statutes, and customs of the Realm. Furthermore, it is well and notoriously known, that proceed and condemnations Ecclesiastical in ordinary Courts were never made by the judgement of a man's peers, viz. by a jury: and therefore those words rehearsed, can not be so far extended, as to include that jurisdiction. Yet as institution unto a benefice, both before & after Magna charta, belonged always to ecclesiastical persons and jurisdiction; so did also the destitution or deprivation from a benefice by the Common law: in which respect, Bishops (that claim not the patronage) do always plead to a Quare impedit, thus; Nihil clamat praeter institutionem & destitutionem Clericorum, ut Ordinarius in dictarectoria de A. etc. whereby may appear, that a man might (by law) be put out of his benefice (being his freehold) otherwise then according to the form of that statute. And this (by the way) may also show, how unsound a collection the Notegatherer maketh, out of those words of Magna Charta; where, because a benefice is a freehold, he would infer that a Clerk may not be deprived of his benefice, but by a judgement at the Common law. I have also proved in the chapter next afore, and in the eight, and the twelft chapters; that an Ordinary in his dioecesse (even at the Common law) might condemn a man for heresy; whereupon (after committing to the secular power) such an heretic was put to death, by burning: but this was not done by any judgement of his peers, and therefore those words of Magna Charta, are no way to be construed of any jurisdiction ecclesiastical. Furthermore, besides judgement of a man's peers, there is added, or by the law of the land; which permitteth other trial then by Peers: as by battle, etc. Now seeing all jurisdiction and authority in this Realm, aswell ecclesiastical as temporal, was ever in right, but now is also (justly) acknowledged, and is infact, united and incorporated unto the crown of this Realm: therefore inquire, whether upon the premises it may not be probably said (albeit not according to the usual speech) that a judgement duly given by the jurisdiction ecclesiastical, is given by the law of the land? But this cloud, or rather missed, which they would cast, is also plainly dispersed by the first chapter in Magna Charta: for thereby is made a flat distinction and severance, betwixt the grant there made to God, (with confirmation of the Church of England's freedom, rights, and liberties for evermore) from those grants that are after made, to other the freemen of the whole Realm, in the rest of that charter: so that the jurisdiction 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 forth unto that jurisdiction also, will not statutes made by the like authority of Parliament, sufficiently qualify or impeach them? Unto this head, is that objection of the Notegatherer to be referred, where he allegeth out of the diary acts of the Clerk of the Parliament, I know not how truly, 1 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 sheriff or other lawful officers. Buthe doth fully answer himself therein: for the king's answer was (saith he) that Leroys ' advisera; which is the form of dissent, that the Kings and sovereign Queens of this Realm do use, when they descent or deny any statute or petition in Parliament offered unto them to be confirmed for a law. Whereby we see, that arrests & attaching for crimesmight be made without inditement precedent; and by others than the sheriff &c. and also, that albeit Magna Charta had been to the contrary, yet an act of Parliament coming after, might change that law. Wherofifneed were I could show sundry other examples: notwithstanding, that which the Treatiser putteth us in mind of, viz. that in K. H. 3. time, there was a just sentence of curse and anathematization, denounced by the Bishops; against the violaters orbreakers of the said great Charter. But what if Bishops should use the like authority now, to excommunicate indefinitely and aforehand, all such as shall hereafter break some temporal law? it is to be doubted, that the Treatiser would not in this case be the same man, nor yet affirm it to be a just sentence; but would rather threaten them with a Praemunire, for their kindness. It is assured, that par in parem non habet imperium: and none authority can so bind itself by any law; but that (upon good occasion and by like power) it may be abrogated again. Yet how little this plea of ours is needful in this case is sufficiently showed. Yea rather the defenders of these & such like opinions against the rights and liberties of the Church of England notoriously known so to be, by the reported laws & customs thereof, to them that know any thing in either: had need more justly to fear that censure of the Bishops, if it be so just; if so be they carry any fear at all or reverence unto the censures of the Church, which be so justly inflicted, as themselves do yield. As these opinions do only reach and shoot at the commission ecclesiastical, to impound and strain the authority thereof unto so narrow a room; as that her Majesty should thereby have no service done by those her subjects which are employed therein; whereby the fancies of the favourites of these men, might more freely grow without discovery, or any such penal●…ie as they think they need care for: so for the just defence (herein) of that commission, I may allege the words of the same statute, whereby it is established; 1 1. Eliz. cap. 1. viz. They shall have full power and authority, by virtue of this act, and of the said letters patents, under your highness, your heirs or successors, to exercise, use and execute all the premises, according to the tenor 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 whatsoever tenant in se, viz. that which is expressly contained in them: by the effect of them is understood, whatsoever is within the true and unforced meaning, of any such letters patents. So that if attachment, fine, imprisonment, etc. be either in the letters patents expressly contained (as in truth they be) or undoubtedly meant by them; then the use and excercise of these, shall thereby sufficiently be warranted and authorized unto her Majesty 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 sive clausulae operatinae: and do therefore supply many defects and wants in the exercise of a jurisdiction, delegated by the Prince's rescript. The first of them are those words, Full power & authority: and the other is, the general non obstante, in transcendenti, viz. of any matter or cause whatsoever. But to all this is answered by some, that these words, viz. according to the tenor and effect of the said letters patents, do work thus much: that her Majesty need not grant all, but so much jurisdiction, as her Highness thinketh meet: and that so many or few of them (so they be two at least) may thereby be authorized under her Majesty, to exercise such jurisdiction. It is true, that those words so work and import so much: but doth it hereof follow, that nothing else is meant or can be comprehended thereby? Nothing (say they:) for other process than citation, or other censures or punishment then excommunication, etc. her Majesty can not commit unto them: else might she also give them authority to hang men. What? is there no more difference with these men, betwixt attaching, fining or imprisoning, and plain hanging? What will they then say of the Star Chamber, which may impose all those three, and yet cannot put any man to loss of limb or of life? and this is great reason. For we are taught by the Civil law, (and I think it is agreeable also to the laws of the land) that wheresoever an authority is given (in never so general or pregnant words) it cannot be drawn forth to reach unto any mutilation of limb, or pains capital, except they be plainly expressed. Other some, as the Treatisour, doth answer this objection in this sort: but yet to the end of proving oaths of the parties, in causes criminal to be unlawful, a matter to be handled in the third part, viz. that how general soever the words of the act be in one place, yet are they to be restrained to this particular, viz. none other than such jurisdiction ecclesiastical, as may be lawfully used: and intending (per petitionem principij) that such oaths, be contrary to law. But in this his interpretation (he saith) he cotrarieth diverse great learned men in that law, whom it behoveth with a more narrow eye to behold this statute law. Truly half an eye of a mean learned man, will serve to discover, that he cautelously leaveth out one member of the disjunctive alternation, which is in that statute. For it is thus, viz. all jurisdictions etc. whatsoever, by any Spiritual or Ecclesiastical power or authority, hath heretofore been, or may lawfully be exercised, etc. So that if either it have been exercised at any time, or having not been put in exercise, yet lawfully may be; it is here granted to her Majesty. And were it in deed meet either in temporal or spiritual jurisdiction, to leave it to the dispute & determination of every private subject that is dealt with; what may be lawfully, and what may not so be done, in either law? The Treatisour, nor any other, cannot in answer hereof, say: that the word lawfully, must also be understood as repeated in the first member. First because it is a disjunctive proposition; and therefore that word should have been expressed in the first part, if it had been to be drawn unto both; and not to have been put in the second part only. Secondly, for that it would then take away from her Majesty all such ecclesiastical authority (being most lawfully in her Highness) as was heretofore exercised by, or under the Pope, by usurpation; and therefore most unlawfully. Nevertheless the matters granted and exercised by the commission, which are by him challenged; (I trust, God willing) shall be also otherwise proved lawful and warrantable. Against imprisoning by virtue of the commission (one of the special matters now in handling) the said Treatisour objecteth: that, such parties as refuse to swear to answer the articles exhibited against them, are imprisoned without bail or mainprize: whereas by the law ecclesiastical, they ought not to be imprisoned, but to be proceeded against, as pro confessis. It is true, that by Ordinary authority ecclesiastical, no man may be imprisoned. Therefore the untying of this knot, resteth upon the whole matter here disputed of, viz. whether that statute 10. Eliz. do not warrant her Majesty, to grant by her highness letters patents, power to imprison, for such contempt, as this objection importeth. To prove that her Majesty may not so grant, nor they take such authority: the Notegatherer affirmeth, that the commission bindeth them precisely to crimes punishable by the ecclesiastical law; and to proceed according to the ecclesiastical laws of this Realm, and not according to the temporal: quoting five statutes for this, albeit there be in none of them any such matter. but both the first and second part of this objection, is untrue. For the commission (though now that power be not altogether used) granteth the execution of four statutes unto them, and alloweth them to proceed aswell by juries, as by course of the law ecclesiastical. And when Doctor Grindall was Bishop of London, sundry crimes ecclesiastical (by virtue of the commission) were tried by juries, before him and certain judges, and other professors also of the common law; being then in that commission. Yet is the Notegatherer, upon this untrue ground bold to infer, that to do otherwise, is to encroach upon the temporal jurisdiction: and to make an hotchepot in one commission. Truly this his collection is not worth an hotchepot, that is a pudding, as Littleton doth expound that word. For the temporal judges are not to proceed in matters of ecclesiastical jurisdiction: and therefore their jurisdiction is not encroached upon, though in such matters ecclesiastical attachements or imprisonments be used, or fines imposed; seeing they themselves cannot (in those causes) use or impose them. When the whole Realm at the beginning of her majesties reign was visited (by virtue of this statute) by Divines, Civilians, and Common Lawyers in that service employed; who had authority by their several commissions to attach, imprison, fine, etc. aswell as to use censures ecclesiastical; all which they did accordingly: then and at that time, none of these quick & narrow sighted fellows (lately sprung up) were to be found; that could see more than the reverend judges, and could so roundly tell her Majesty, that she did grant more authority to her Commissioners, then by that statute was given to herself. Oh, belike it was law then, and good justice against Papists: but to deal against pretended Reformatists, it cometh far too short. But the Treatisour urgeth this matter yet further: he saith, that no learned man will affirm, any jurisdiction (by that act 10. Eliz.) to be united to the crown, but spiritual or ecclesiastical. And that none such can affirm, that any jurisdiction etc. repugnant or offensive to the Common or Civil Policy of this Kingdom, is established by that Act: for that there is none Antinomy or contrariety of laws. Whereupon he would infer, that Attaching, Imprisonning, and Fining &c. (by virtue thereof) is not warranted to be granted. In answer whereof, let him understand, that his argument followeth not upon either of those Antecedents. For the first, though the matters of jurisdiction thereby united to the crown, be only ecclesiastical: yet the manner of conventing, or punishing in them, is not in that Act so restrained, but that such other courses may be used, as to her majesties wisdom shall seem most fit: which by and by shall be showed God willing. For the second: we deny the manner of conventing and punishing established by the commission, to be repugnant or offensive any way to the Civil Policy of this kingdom: for it is warranted by that Act. This point (if the words of that whole clause be advisedly weighed and considered) will be made most plain. In the exercise of a criminal jurisdiction, there is the matter, wherein it is bestowed, the manner of conventing, and sanction or penalty to be inflicted upon offenders, which are to be considered. Now the matter of this jurisdiction and authority granted to her Highness, and that may be assigned over by her Majesty unto Commissioners, is visiting, reforming, redressing, ordering, correcting, and amending all such errors, heresies, schisms, abuses, offences, contempts and enormities whatsoever, which by any spiritual, etc. Yet what course is to be holden in calling and conventing, and what kind of penalties or censures shallbe inflicted upon offenders by that authority; are by no words of that act expressly granted to her Highness, or mentioned, that they may be assigned by her unto the Commissioners; and therefore of necessity to be supplied by those general words, viz. According to the tenor and effect of the letters patentes. For else (by such an interpretation of theirs) we should have matters for a jurisdiction, but neither any manner to convent and compel to come afore the Commissioners; nor yet punishment to lay upon enormous offenders, against whom it was intended. Which, because it is very unreasonable; therefore that opinion, whereupon it necessarily followeth, must needs be more absurd, and without ground of reason. Yea (say other of them) be this as it may; and let them seek out what processes, etc. may and shall be used by the Commission Ecclesiastical: for it is contrary to the law, to grant (by Commission) authority to inflict any punishment upon a faul●…, which (by law) ought not to be inflicted: and therefore they gather that the Queen cannot authorize, nor any man may take power to attach, to fine, or to imprison men, by that Commission. Thus far it is true, that a Commission may not be granted to alter or change any law in force: but I trust it is not contrary to the Common law and custom of the Realm, by act of Parliament, to alter and change that which stood otherwise afore, at the Common law. If this so did by the course of the Common law, no man may be put to the rack or torture (especially about felonies or murders) thereby to draw him to confess of himself, or of other men, his complices: Yet is it notorious, that in Wales and the Marches thereof, the Precedent and Counsel there established, do use, and lawfully may put men to such torture; by warrant of instructions only sent unto them from time to time, under her majesties gracious hand. This their authority (I take it) is derived from these 1 38. H. 8. ca 28. Rastall, Wales 32. words in an Act of Parliament: The Precedent and Counsel there, shall have power and authority, to hear and determine, by their wisdoms and discretions, such causes and matters, as be or hereafter shall be assigned to them by the King's Majesty, as heretofore hath been accustomed and used. Which do contain no more particularity of authority, nor yet are of so much pregnancy to that purpose; as the words (that establish the Commission Ecclesiastical) be, for Attachment, fine, and imprisonment to be used, if it shall please her Majesty so to commit them. The devise of the Commission Ecclesiastical, was for assistance and aid of Ordinary jurisdiction Ecclesiastical; and for rounder proceeding, and for more grievous punishment at least (in these dissolute times) more feared; then can or may by Ordinary jurisdiction be inflicted. Therefore, if by the general words of that Act, 1. Elizabeth, both these proceed whereof we here speak, and many other particularities of manner, persons, times, places, and other circumstances might not be warranted: then the authority (there) given to her Majesty, were of none use at all, neither could it possibly be practised. But I think this power here by these opinions impugned, may be also proved directly, out of the words of the very Act, thus: whatsoever by any Spiritual or Ecclesiastical power or authority hath heretofore been, or may lawfully be exercised or used for visitation, etc. or reformation, etc. of all manner errors, etc. and enormities whatsoever, that is united to the Crown, and by that Act may be committed over by her Majesty: But Attaching, imprisoning, and such like corporal coërtion, by some Spiritual or Ecclesiastical power or authority, hath heretofore lawfuly been exercised: And therefore may be appointed by her Majesty to be now exercised by the Commissioners Ecclesiastical. For proof of the Minor, I am to put you in mind, what corporal punishments and chastisements the superiors of every Regular person, as of Monk, Friar, and Nun, might and did lawfully from time to time lay upon them that were under their Ecclesiastical obedience; and yet (even after their professing) they remained still the King's subjects. Likewise, when the statutes against Heresies were in force, these Attaching, imprisonings, and other corporal chastisements were then lawfully exercised and used by Ecclesiastical power and authority. Lastly, 1 1. H. 7. ca 4. Bishops and Ordinaries may lawfully at this day punish and chastise Priests, clerk, and religious men within their jurisdiction, being convicted of incontinency, by committing them to ward and prison, there to abide, for such time as shall be thought to their discretions convenient, for the quality and quantity of their trespass. So that we may conclude, that if any such power have been used, than her Majesty may (as it please her) use it still; and appoint the same to be used by her highness Commissioners, how and upon whom, she thinketh good. The Treatisour himself testifieth, that divers even of the learned sort, do hold and affirm (and that very confidently) that the Act and Commission thereupon, do give full power and authority for any course soever, for the government in causes Ecclesiastical, that shall be mentioned in the letters Patents. This he exemplifieth by sundry examples, though holden by such learned men, which nevertheless he accounteth contrary to Law: whereof some fall in most fit for this place (because they are bend against the said Commission) and others for other places of this Apology. First he thinketh it very absurd and not warrantable; that the Commissioners Ecclesiastical should command justices of Peace, to assist any for attaching and imprisoning of offenders till they give bond for appearance. And saith, this is against Law and justice. The only reason he rendereth of this his assertion, is: for that justices of Peace be Magistrates, and Commissioners of Record, authorised, as well as the other. Belike himself is some justice of peace: Hoc urit hominem, qui imperare, non parêre didicit. And will he then (upon his learning) deliver; That no Magistrate or Commissioner of Record, may be commanded by another; though no less be warranted by his Commission? Hereupon would follow, that justices of Peace and Sheriffs might not be commanded in any case by the judges of either Bench, by the Exchequer, by the justices of Assisse, by the L. treasurer, by the L Chancellor or L. Keeper; nor yet by the whole Counsel board. He thinketh it also not justifiable, that any Magistrates should be commanded by the Ecclesiastical Commissioners to assist in Attaching, or to attach any, upon a warrant, called Quorum nomina. For reason of unlawfulness hereof, he allegeth: 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 untrue, that in this kind of warrant, no cause is declared. But admit it were otherwise; what Law of the Realm is against it? And if the like warrant shall come from the Lords of the Counsel to him, or any other justice of the Peace, to be aiding and assisting unto some Messenger, in attaching of certain persons to be carried up unto them as Prisoners, whom the said Messenger shall name unto them: will he refuse to intermeddle in the service as surmising the Lords to do therein against Law; because they command him being a justice of Record; and for that they signify not by their Warrant, what the particular cause is, where with they mind to charge such persons that are to be Attached? But if in so doing their Lordships do nothing contrary to Law, howsoever he do foolishly and undutifully to refuse to give his assistance: why shall the Law anymore be against the Commissioners, doing but the like; and that by express Warrant of her majesties letters Patents? Another reason, why such Warrant should not be justifiable, he doth allege: because the names of such persons to be Attached be not set down by the Commissioners, but are referred over unto others to set them down. Mine answer hereunto is: First, that the Warrant of Quorum nomina, is very rarely used by the Commission, and the rarer, the better. Secondly, when it is used, the names of the parties are set down and allowed (afore) by the Commissioners, and not by others, for anything that I can learn. Nevertheless there may be good and weighty occasions, to omit this course: as when such Warrant is directed to a man of quality and good credit, that he may put in the names; for this end lest when one is served, he bewray all to the rest, whose names be also in the same Warrant, that they may convey themselves out of the way. Howsoever it be in this behalf, I think the Treatisour will be long in finding out how this should be reckoned, to be contrary to the Laws of this Realm. Hitherto touching the challenges made to some particular points, in the manner of exercising that Commissun. But the Notegatherer, (to cut off all these particular disputes) allegeth; that it may be thought, the whole Commission is void in Law. For that (as he surmiseth) it beareth date in july, but was signed in November next after; 1 18. H. 6. cap. primo. contrary to a Statute. What? was this quarrel which is now picked against it, worth the practice, of abusing a counsellors name, to procure a copy thereof? Well, both the Preamble and body of the statute also doth clear this cavil. For by the Preamble it appeareth; that the mischief to be remedied was: for that by grants antedated long before the King granted them, other grantees who (in very truth) had the first grant and great seal set to it, (yet bearing date truly) were expelled by colour of letters Patents, bearing the elder date. In the body of the Act is contained this particle Such, which is of restraint, viz. That the King (willing to put out such sly devices or imaginations) did ordain by Parliament; that letters Patents should be dated the day of their delivery into the Chancery; or else be void. Now if this Statute were to be understood of all letters Patents whatsoever, where is the reason of that Law found in a Commission? but, ratio, est animalegis: & cessant ratione, cessat Lex. Therefore this Statute can be stretched to none other letters Patents but Such, as the mischief mentioned in the Preamble, may happen into. Yea, if it were otherwise to be understood; he must (ere any will believe him) bring more evident matter then this: viz, It is thought, and It may be thought. Let him then go seek the Records in the Chancery; and see, whether the date and the day of the delivery of it, do not agree: and so may he have more colour to wrest the statute, when he doth not misreport the matter in fact, as herein he hath done. CHAP. XV. That an Ecclesiastical person may be deprived of his benefice without inditement or prosecution of party. IN the next opinion, I mind to be very short: it is this, that by none ecclesiastical authority, a man may be deprived of his benefice (which is his freehold) being not indited, and no suit of party offered against him. Whereby (we see) he requireth both an inditement, and a suit of some party. It seemeth his meaning is, that a Minister cannot be deprived, but by way of inditement at the Common law, and that the judge (of Office) may not prefer such inditement; but it must needs be at the suit of a party. I can not well conjecture, whereupon he pretendeth to ground this opinion. If upon the 29 chapter of Magna Charta; it is showed in the chapter next precedent, not to be understood of Ecclesiastical jurisdiction, or of the practice thereof. And moreover, that chapter in Magna Charta requireth no suit of party to prefer the inditement; so that it may be done by the judges of Office well enough. But this conceit is very strange, that Bishops shall not have authority to deprive an Ecclesiastical person from his benefice. It is showed in the chapter afore, that by usual and allowed course of pleading to a Quare impedit, the Ordinary doth claim (as of common right) institutionem & destitutionem Clericorum, in benefices within his jurisdiction. And the old rule was, Cuius estinstituere, eius est destituere. But perhaps it will be said, he meant, that a Bishop might do it, but not of Office, that is, without a party, albeit he put a Copulative in stead of a disjunctive. But if his meaning be such, he meaneth more than is true. And further, what privilege or benefit is this to the party convented, to be prosecuted by a party, (and therefore perhaps of malice and by subornation of proofs) rather then by the ordinary proceeding of office and duty, for whose sincerity, we may more probably presume and intend? Moreover, what if one that hath a benefice will come unto the Bishop, and there stoutly defend Atheism, Apostasy, or denying of Christ, or any other heresy, gross blasphemy, or idolatry: may he not (till some accuser be found, or a party to prosecute) deprive such a person from his benefice ex Officio? What if the beneficed person will confess before the Ordinary, that he was never called to the ministery, but hath usurped it, by colour of forged testimonials of Orders: or that he hath committed Simony, Incest, Adultery, or hath two wives living at once, or 1 13. Eliz. ca 12. that he never subscribed nor read the Articles of religion, or being once convicted, do again defend some error against such Articles: may not the Bishop ex officio in all, or in any of these cases, deprive or declare his benefice void, except some other will come and make himself a party? But that he may do it, appeareth 2 1. Eliz. cap. 2. by the statute 1. of her Majesty: for there it is said, he may inquire (which is always ex officio, as shall be more plainly showed in the second part) and may punish by Deprivation, etc. as in like cases hath been used by the Queen's ecclesiastical laws. CHAP. XVI. That after forty days, an excommunicate person may be otherwise punished, then upon the writ De excommunicato capiendo: And that the said writ may and aught to be awarded upon contempts, rising on other original causes ecclesiastical, than 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 above forty days, may in none other sort be punished then upon the writ De excommunicato capiendo. The other is: that, the said writ De excommunicato capiendo, ought not at all to be awarded upon contempts rising from any other original causes then upon some of the ten crimes, that be mentioned in the statute 5. Eliz. cap. 23. The first is easily impugned: for he may be punished twenty pounds by month, for absence from divine prayer: neither shall his excommunication excuse him, for it is in his own default. Besides, it is a great contempt in an ecclesiastical cause, and therefore punishable by the Ecclesiastical commission, upon the express words used in that Act, which doth establish that Commission. And this standeth with reason, where there are great numbers of such wilful persons, or slack execution by Vnder-shirifs and Bailiffs of that writ, as often falleth out; besides the great charges, in suing of it out. For I dare avow that in sundry dioecesses in the Realm, the whole yearly revenues of the Bishops there, would not reach to the iusticing of all such contemners (being of the base sort of persons) by the course of this writ. They might happily to the great charge of the shire, keep many of them in prison long enough: yet they should never procure the fees back again, that first, whether for rich or poor must be defrayed, for want of ability in the persons so excommunicated. Lastly, the law ecclesiastical very reasonably & gravely provideth in this behalf, that if a 1 c. excommunicamus. §. qui autem. ex. de heretic. man stand excommunicate above an whole year, he may be proceeded with for suspicion of heresy: because the law presumeth, that such a man hath small 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 behalf it will be said; this is a shorter way than the other pursuit of the writ De excommunicato capiendo; being over-troublesome and full of unnecessary circumstances. But hereunto he doth answer, that we forget the old and true saying: Compendiaria res improbitas, virtus longa. Now if he will have this to be a good answer, then must he hold; the shorter way always to be the worse, and the longer the better. And where is then the rule of Logic, Frustrà fit per plura, quod fieri potest per pauciora? and how is he so suddenly fallen out with himself, that elsewhere condemneth Courts ecclesiastical for linger consistories? I perceive neither long nor short will please him long together. But his reason is a fallacy of the consequent. For though it be but a short cut unto wickedness; and the way unto virtue 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 cross & thwart other of their own opinions: for the Civil law saith: Frustrà fertur sententia, nisi parata sit executio. A decree or judgement is of no effect, where execution of such sentence can not be had. The judges ecclesiastical have no compulsory means to put their judgements unto final execution, saving excommunication, & the writ De excommunicato capiendo, after forty days obstinacy. Those of the impugners of ecclesiastical jurisdiction (under pretence of the laws of the Realm) that be straightest laced; do yield causes testamentary and matrimonial to be of ecclesiastical conusance; and (I hope) sundry others be proved no less to be. Now how shall any of those be ever effectually proceeded in, seeing they are none of the ten crimes reckoned in that statute; if for not performance of that which is decreed, the wilful party shall never be attached, for persisting under excommunication? It appeareth also plainly by the Preamble, that the said statute was enacted, for better assistance unto jurisdiction ecclesiastical, by more due execution of the writ De excommunicato capiendo; especially against offenders in crimes of ecclesiastical conusance. The Ordinaries (afore this) who had to deal in any matter ecclesiastical, and all subjects that sued any other there, had this interest; of having a contemptuous person being excommunicated, and so remaining above forty days; to be attached and imprisoned by virtue of that writ; upon what original cause ecclesiastical soever such contempt grew. Now if that statute providing but a straighter course for execution of that writ, in ten crimes only; should with all take away the force and use of it, as it stood afore at the Common law; not only in sundry other crimes of ecclesiastical conusance still there punishable; but also in all causes Testamentary, Matrimonial, of tithes, and in all other rights ecclesiastical in that Court only still demandable: then should it work a clean contrary effect to the very true drift and scope aimed at; and to the meaning itself of the Lawmakers. But this is very unreasonable and absurd to imagine. for, quae in favorem sunt introducta, non debent in odium retorqueri: and, quae ad unum effectnm parantur, non debent contrarium operari effectum. It is true, that in the beginning of the body of that Statute, the words be general in this sort, viz. Every Writ of excommunicato capiendo, that shall be granted out of the high court of Chancery, against any person or persons, etc. Whereupon some very learned in those laws have thought, that the manner of granting it, returning and delivering it, which be there especified; doth reach unto all and every writ de excommunicato capiendo: but yet that the new penalties there provided for such person excommunicate, as shall not yield his body; are to be restrained unto those only, who by Significavit are certified to have been excommunicated upon some cause or contempt, arising upon some original matter of some of those ten crimes, there especified. This seemeth to carry great reason with it: for in truth (that generality there not withstanding) not only in the Preamble, but in divers parts of the body of that statute, we find words taxative and of restraint; carrying the chief purport of that Act unto such writs, as be grounded upon some of those ten crimes. For the Preamble only speaketh, of persons offending in many great crimes and offences: of continuing in their sinful and criminous life, and of such offenders. And the beginning of the body of the Statute is: for redress thereof be it, etc. and afterward this word of Limitation is often used, viz. Such writ of excommunicato capiendo: such persons excommunicate; and such Significavit. And therefore that statute nor any Proviso in it cannot be intended, generally to take away the writ de excommunicato capiendo, in all causes, saving in those ten crimes; as by this opinion is enforced. But the clause thereof, Saving and reserving to all persons having authority to certify excommunicate persons; doth put all this matter out of doubt and dispute. For thereby is saved and reserved to them like authority to accept and receive the submissions & satisfactions: to absolve and release, and to signify: and thereupon to have such writs, etc. in such manner and form as heretofore (respectively) they have used, as hath been accustomed; and as they or any of them had, or ofright aught or might have had: anything in that statute specified or contained, to the contrary here of, notwithstanding. If then they may still signify in like manner and form, shall have writs thereupon, may absolve and release, receive satisfaction and submission, etc. as they had done before that time: then may and aught the writ de excommunicato capiendo, to be awarded for contempt arising on other original causes ecclesiastical, than any of those ten crimes in that statute reckoned. For so Ordinaries did, and had afore that time, and since also; whatsoever this opinion now doth deliver to the contrary. CHAP. XVII. Of a Prohibition, what it is, where it lieth not, and where it doth: and how it ceaseth by a Consultation: & of the writ of Indicavit. WHen any Court goeth beyond his bounds, and dealeth in other matter or sort, than the laws of the land will warrant; there lieth in some cases writs at the common law, which are of Prohibition or Indicavit: and in other cases, a writ brought in by statute, called Provision and Praemunire: and the Prohibition and Praemunire do lie as well against temporal, as against ecclesiastical Courts. The Prohibition is a charge by the kings writ, to forbear to hold Plea, either in some matter or manner, which it is supposed a man dealeth in, beyond his jurisdiction, or otherwise then law will warrant. Every Prohibition is either Prohibitio juris by the very law itself; or Prohibitio hominis, where the ministery of the competent judges (in that behalf) is used. Any Statute prohibitory is 1 21. E. 3. fol. 29. Prohibitio juris; a very prohibition in itself, and therefore it is a contempt, to sue against it. In a prohibition we are to consider; In what matter it lieth not, at what time it lieth not, where and when it lieth, & how it ceaseth or looseth his force. For the first, it is 2 18. Edw. 3. pro clero. ca 5. provided by statute, and the king there determineth thus: that no prohibition shall go out of the Chancery, but in such case, where we have the Conisance, & of right aught to have. And therefore Thirning 3 M. 2. H. 4. fol. 15. said; when we see the jurisdiction belongeth not to us; we will grant a Consultation. So that if the matter be mere Ecclesiastical, there lieth no Prohibition. Touching the second point, it seemeth a Prohibition is not to be granted, till by sight of the Libel, there appear cause to grant it. For 4 31. H. 6. fol. 14. Henkstone held, that by the statute de Regia prohibition & de coniunctim fe offatis in fine, a man shall not have prohibition, antequam lis sit contestata in curia spirituali: which is, till a libel be put in, and the party put to answer it: & this is to be certified to the Chancellor by the view of the Libel: which Fortescue granted. But this hath two exceptions: one is, when the copy of the Libel (contrary to the Statute 2. H. 5.) is denied: for upon this cause, I find a 1 M. 4. E. 4. fol. 37 prohibition granted, that the Ordinary should surcease, till the copy of the Libel, according to that statute, were delivered. another exception is in some court, where a surmise is made, that the suit (in truth) is for some other matters, then are expressed in the Libel: for Brook reporteth that 2 Brooke tit. prohib. nu. 17. a man may have a prohibition in the king's Bench upon such a surmise (as for example by surmising the suit to be (in deed) for great timber, though it be demanded in the Libel, under the name of Sylva 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 suit, or in regard of the judge before whom it is, or for the very matter handled. For the first of these three: If a 3 T. 12. H. 7. fol. 22. Parson of a Church do sue another Parson's farmer or servant for right of tithes, being not such as can try 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 judges contempt; as in not delivering copy of the Libel, as is afore touched: or for that he hath not (in deed) any jurisdiction. for so it was judged by Hankeford and by the whole Court, (as it seemeth) in the vicar of Saltash his 4 M. 2. H. 4. fol. 15. case being convented before the Pope's Collector. Though a Consultation did otherwise lie, the court will not grant it to one, that hath no jurisdiction in right. Concerning the third and last point of the three, if the matter be Temporal, that is such, as 5 Stat. de consultat. 24. Ed. 1. there lieth redress for, by some writ in the Chancery, than there lieth a Prohibition, as seemeth by Statute: to which agreeth the 6 Lib. 2. ca 24. place before alleged, out of the book of Doctor & Student. Yet this hath also two exceptions: one is, whereas the Spiritual Court holdeth Plea quite to another end. For 7 Artic. Cleri. 9 Ed. 2. cap. 6. when one & the self same case is debated before judges spiritual and temporal (as for beating of a Clerk) there the statute is; that (notwithstanding the spiritual judgement) the king's 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 showed in the 8. chapter. The second exception hereof seemeth to be, 1 T. 9 H. 3. per Fitzh. Prohib. when one Clerk sueth another in the spiritual Court, for the goods of his house; for there lies no prohibition: as when one Abbot sueth another. Secondly, a prohibition lieth, where a matter (being at first ecclesiastical,) brings at last in debate, a mere temporal matter with it, to be determined. Therefore it was holden, that so soon 2 38. H. 6. fol. 21 as it appeareth, that the right of tithes comes in debate, the lay Court shall cease, and be out of jurisdiction: and the same law is of the spiritual Court: for if it may appear, that the right of advowson may come in debate, although it appeared not at first, the spiritual Court must surcease: quod fuit concessum. This may happen (as for example) when suit is brought (at first) for right of tithes; and it falls out by depositions or otherwise; that the tithes 3 Circumspectè agatis. 13. Ed. 1. demanded amount to the 4. part of the benefice by year: in which case it is determined, that the temporal Court shall have conusance, even as if the right of Patronage were in demand principally. thirdly, a prohibition lieth for such a cause, 4 Doctor & Student. Loco. d. as albeit there lie none action for it in a temporal Court, yet the matter is such, as of custom never belonged to an ecclesiastical court. As if an ecclesiastical court would hold Plea against an executor, upon a bare contract made by his testator: for neither the court may hear it, nor yet there lieth action for it in a Temporal court. fourthly, there lieth Prohibition, when the suit tendeth to determine and give execution in a temporal matter; as money, etc. being due otherwise, then by the judgement given in the Court ecclesiastical. Therefore if a composition by indenture 5 11. H. 4. fol. 85. be made by an Ordinary betwixt two ecclesiastical persons; that the one shall have tithes, the other an annuity, with penalty for default of payment: the suit for this shall be at the Common law: but the suit for any thing that riseth upon a judgement given in the spiritual Court, shallbe there, per Hill. For 6 T. 12. H. 7. fol. 22. though amends be to be made by a certain sum of money, this is no necessary cause to grant a prohibition, no more than when the suit is for tithes, yet the condemnation in money being the value of them: nor when a penance is redeemed by the party for money, which may be sued for in a spiritual court, per Butler. Because when an offence is done to a man, it is 1 Ibidem. reason that he have amends for it: but there can be no more proper amends than money, because every thing may be valued by money, per Keble. Which they speak to prove; that amends in money may be awarded in an ecclesiastical Court for Diffamation: and so the judgement then passed, upon this ground (among others) as 2 Brooke Consultation. nu. 5. Brook testifieth. And 3 T. 12. H. 7. fol. 22. there is a great diversity betwixt a duty or sum of money or other things at the first demandable and determinable at the Common law; and such a sum as before sentence given in the Spiritual law, is not due at all. For the first, there lieth a Prohibition, but not for the second: for otherwise, it would follow, that the spiritual law might give a judgement, which it could not put in execution. but this were absurd, per Reed & Tremaile. fiftly, it is said that there lies a Prohibition, when the party sued hath an action given him at the Common law, for the original and principal matter, whereupon the suit at the ecclesiastical law did grow. The case was thus: Aman 4 T. 22. Ed. 4. fol. 20. reported that the Abbot of S. Albans did detain his wife in the said Abbot's lodging against her will; to the intent to make her his harlot. the Abbot hereupon brought his action of Diffamation in the Court ecclesiastical; and the husband his prohibition. now because the husband might have his action of false imprisonment at the Common law against the Abbot, Brian held, that a Consultation was not to be granted. de hoc quaere. A prohibition ceaseth and looseth his force, after a 5 Stat. de Consultat. 24. Ed. 1. Consultation be once granted. This may be proved by the Statute De Consultat. for the chancellor or chief justicer of the king upon sight of the Libel, etc. if they can see no redress by Writ, etc. shall write to the spiritual judges, etc. to proceed, notwithstanding the king's prohibition directed to them before. But more plainly after: Where 6 50. Ed. 3. ca 4. a consultation is once duly granted, the judge may proceed in the cause, notwithstanding any other prohibition thereupon to him to be delivered: so the matter in the Libel be not changed. The writ of Indicavit is 7 Fitzh Natur. b●…. tit. Prohibition. fol. 45. likewise a kind of Prohibition; and lieth especially & naturally for a suit of tithes, which do amount to a fourth part or above, of the whole benefice. It lieth also for the Patron, where his Clerk is impleaded for the advowson (id est) the right of Patronage, in a spiritual Court. the Patron and Clerk that is sued in the court ecclesiastical may sue it forth both against the Ecclesiastical judge, and the party that sueth there. But it 1 34. Ed. 1. de coniunctim ●…fat. lieth not till the Libel be brought to be viewed into the Chancery, & lis 2 Fitzh. ibid. etiam contestata. and 3 Regist. fol. 47. it lieth only before sentence be given in the Court ecclesiastical: for it is afterward void. CHAP. XVIII. An Analysis or unfolding of the two special statutes touching Praemunire, with sundry questions and doubts about that matter, requiring more grave resolution. IN the matter of Praemunire (which is a question falling often in doubt about execution of Ecclesiastical jurisdiction, wherein as in the matter of prohibition & consultation you desired earnestly that I would write unto you what I thought) I cannot in any point satisfy myself, much less you: by reason that this matter is enwrapped in over many difficult doubts for me to unfold. yet I have some thing considered of it, & do trust that I shall be able to point out unto you certain general heads, whereunto most of the doubts commonly made or happening, may not unfitly perhaps be referred: that thereby tanquam Thesei filo you may be directed (as opportunity shall serve) what & how in this behalf to inquire of the reverend judges, or of other great learned and grave men of that profession. There be two statutes, whereupon it is principally grounded. The first is 4 27. Ed. 3. cap. 1. de Provisor. of Provisors, established in the time of king Edward the 3. the complaint and grief there propounded was, that the king's people were drawn out of the Realm, to answer unto things, whereof the Conisance pertaineth to the king's Court: and that judgements there given were impeached in another court. The mischiefs then noted thereupon were, the prejudice and disherison of the king and of his crown, and of all the people of the Realm: and the undoing and destruction of the Common law of the Realm. The remedy there given for these mischiefs was: that if any of what condition soever (being of the king's liegeance) should draw any out of the realm in plea, whereof the Conusance pertaineth to the king's court, or of things, whereof judgements be given in the king's court, or which do sue in another court to defeat or impeach the judgements given in the king's court, should have day, etc. as is there more largely by the sanction contrived. The other statute is, 1 16. R. 〈◊〉. cap. 5. of the time of king Richard the 2. there is showed and laid forth, that the Conisance of plea of Presentments to Benefices, belongeth only to the king's court by the old right of his crown: and that Archbishops, Bishops, and other spiritual persons having the instituting unto such Benefices (within their jurisdictions) be bound, and have made execution of such judgements, by king's commandments, without interruption: and that also they be bound of right, to make execution of many other of the king's commandments: but it is there complained, that processes and censures of excommunication upon certain Bishops of England, were made by the Bishop of Rome, because the said Bishops have made execution of such commandments: and that he purposed to translate some Prelates out of the realm, & some from one bishopric to another within the Realm, without the King's knowledge, and without their assent that so should be translated. There are assigned also for mischiefs hereupon growing, the open disherison of the crown, the destruction of the king, of his law and realm, and that these things are against the king's crown and regally, that they defeat and destroy the statutes, that they tend to make the realm submitted to the Bishop of Rome, and the laws and statutes of it by him to be defeated and destroyed at his will, that they draw out of the realm (against the kings will) the said Prelates his liege persons of his council, that be much profitable and necessary to the king, and to all his realm, and that these devices will be are away the treasure of the Realm: for remedy whereof it is provided, what shall not be done: viz. that none shall purchase or pursue, or do to be purchased or pursued: where? in the Court of Rome or elsewhere: what? any such translations, processes, and sentences of excommunications, bulls, instruments, or any other things: of what sort? which touch the king, against him, his crown and his regaly, or his realm: in what manner touching these? as is aforesaid, and likewise, that none shall bring them into the Realm: or being perhaps brought in by another, shall receive them; or being neither brought in by them, nor yet received from others, but coming (some way) to their knowledge, shall not make any notification, or any other execution of them: where? neither within the realm nor without, etc. upon pains there at large contained. Of those general heads whereunto I said afore, that all questions of Praemunire might be referred, there be some that being expressed in these statutes, are (I think) without all doubt, to be within the compass thereof: as by the first of these two, to draw any of the Queen's liegeance out of the realm in a plea, whereof the cognisance pertaineth, or judgements be given in the kings Court. And that which is said of a Plea in the king's court, is also drawn by some opinion, unto a court Ecclesiastical, for 1 9 Ed. 4. fol. 3. Yeluerton in the King's bench held opinion oftentimes, that if a Clerk do sue another in the Court of Rome for a spiritnal matter, whereof he may have remedy within the realm, that he is in case of Praemunire, quia trahit in placitum extra regnum. And 2 Fitzh. Nova nat. br. fol. 44. lit. H. Fitzh. holdeth, that for collation of a Prebend sued out of the realm, a prohibition doth lie. secondly, it is an undoubted Praemunire by that statute to sue in another court, to defeat or impeach the judgements given in the king's court. In these words of (another court) there seemeth to be an opposition and severance of such a court, from the King's court: the rather, because both the Preamble and the body of the statute do mention, drawing men out of the realm in Plea. Whereof at that time there was no colour for any man to be drawn any whither, but only to the court of the bishop of Rome, whether he resided there at avignon in France, (where the Popes about that time did lie 70. years together) at Bononie, or elsewheresoever. Therefore for the true understanding of those words inquire: If any of this realm of late years (whiles the parliament of Paris was established by the authority of the French king) upon colour, that the Queen's majesty is in very right Queen of France, should have brought process thence against another subject to appear there: whether this had not been a Praemunire by that statute? likewise, If any of the Q. Courts (not authorised thereunto by law upon writ of error) should defeat a judgement given in any other of the Queen's courts: inquire, whether this be within the meaning of those words, notwithstanding the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and distinction, whereby such another court seemeth to be severed and made a distinct thing from all the Queen's court? Thirdly, it is an undoubted 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 elsewhere, any such translations etc. or any other things, which touch the King, be against him, his Crown and regalty, or his Realm, as is (there) aforesaid: or &c. as is there further contained. Fitzherbert reporteth, 1 Fitzh. tit. Praemunire. nu. 5. that the opinion of the court was (Paschae II. H. 7.) that Alibi in the said statute was understood of Bishop's courts: so that if a man sue there, for a thing that belongeth to the Common law, he shall be in the Praemunire. Therefore 2 Brooke titulo Praemu, nu. 21. was it holden by some, that a benefice Donative by the Patron is a mere lay thing, and the Bishop shall not visit it, and therefore shall not deprive from it, and if he meddle in this case, it is a Praemunire: and saith that Barlow bishop of bath, for depriving the Dean that had it as a Donative by the King's Letters patents, was driven to sue a pardon. Fineux chief 3 15. H. 7. fol. 9 justice, saith; a spiritual man may execute temporal jurisdiction, as the Bishop of Durham doth in his county 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 Spiritual courts for a cause temporal. But whether that Bishop hath this authority (seeing Praemunire is brought in by statute) there is a Quaere inde made, as of a matter doubtful. It is holden, that a Prohibition doth 4 24. H. 8. titulo Praemu. num. 16. often lie, where a Praemunire doth not: as of tithes of great trees etc. for the nature of the action doth belong to the Spiritual court, albeit not that very cause in that form; but when it is of a lay matter, or of a thing that never did belong unto the Court spiritual, herein (as is said) there lieth a Praemunire. But these notwithstanding, sundry doubts are made in this behalf, because at this day all jurisdiction Ecclesiastical is now truly acknowledged, and is in deed (as it was always in law) in the Sovereign prince, and from her prerogative royal derived down to others, no less than the Admiral court is, or the court of the Constable of England in times past was, when it was used: albeit they used their peculiar seals, and names to the processes there sped. And I have heard very credibly, that some reverend and great learned judges (whiles they lived) were of opinion, that for an Ecclesiastical judge to deal in a matter appertaining (in very truth) to a Temporal court, yet for some nearness and coherence, by him probably supposed to be an ecclesiastical cause; could not at this day be a Praemunire; but subject only to a Prohibition, and punishable as a contempt, as it was at the Common law, upon an attachment after Prohibition. Which opinion if it be sound; then the Treatiser is far wide from the truth, where he saith: that for men to deal in any cause not belonging to their jurisdiction, is Praemunire. This were very hard and rigorous, if every mistaking or going beyond their commission by justices of Peace, by any judges ecclesiastical or temporal, should be no less than Praemunire. I have heard it delivered by great Lawyers, that so to do, doth but make the Actvoid, as being coram non judice, and inferreth no such grievous penalty. For it is alleged, that (Alibi) in the statute was put in, to include processes derived from the Pope's authority, albeit he kept his abode any where else then at Rome. In which respect it is affirmed in a 1 25. H. 8. ca 21. statute; that the said statute of Provision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the king's crown and dignity royal. And it seemeth to some, that Alibi can not now signify Bishops and their Courts, which are called the Queen's Ecclesiastical courts and judges, and the Canons by law established, the Queen's Ecclesiastical laws. Insomuch, as the power given by statute to her Majesty, by her Letters Patents to 2 1. El. cap. 1. name such as shall execute all manner of jurisdictions touching or concerning any Spiritual or Ecclesiastical power, is brought 3 8. El. cap. 1. in the Preamble. to prove the sufficient ordinary authority, that Bishops have given unto them, by the very Letters Patents directed from her Highness, for their confirming and consecrating, etc. It is further alleged, that such dealing of an Ordinary toucheth not the King, against him, his Crown and Regalie, or Realm, as not falling into any of the mischiefs, whereof that statute was meant to be a remedy. And for that (all jurisdiction Ecclesiastical is now both in fact and Law united to the Crown, and from thence derived) if it should be said that the handling of a matter but in an incompetent court (yet established by the Queen's authority) were in that high degree of offence & punishment against her Crown: some think it reacheth thus far; as to imply an incompatibility betwixt the Crown and Ecclesiastical jurisdiction; and so by implication, to deny her just Royal prerogative over all persons, and in all causes aswell Ecclesiastical as Temporal; as if these could not both flow from the Crown, nor stand together and meet in one person; which is most erroneous to think, and traitorous to affirm. It is likewise alleged, that this were to make in effect a Praemunire to lie in every case, where a Prohibition may, and always hath served the turn. Whereas a Praemunire seemeth to be as a remedy provided, where a Prohibition could not serve, to stay the course of proceeding. And that even before the supremacy was acknowledged to the Crown, no Praemunire upon this point (only) is reported in the books of terms and years, to have been inflicted: but only for pursuing pleas of the conusance of the kings court out of the Realm, seeking to defeat judgements there given, and procuring Bulls from the court of Rome, in derogation of the laws of the Realm. Moreover, it is to this purpose alleged, that by the 1 3. & 4. Edw. 6. cap. 11. statute authorising two and thirty persons to set down laws Ecclesiastical, though repealed, it was provided (as they think) in affirmance of the law, that no man for executing any of them, should have incurred contempt, pain, forfeiture, loss, nor have been in danger of any action or suit of praemunire. Yet if such laws had been framed, the judges ecclesiastical might (by mistaking) have given some cause of prohibition. Therefore it is gathered by like equity, to be very hard, that an Ecclesiastical judge meaning to do his duty, and but to execute Ecclesiastical jurisdiction ecclesiastically, yet by similitude and near coherence of one matter with another, mistaking and so exceeding his authority (a thing very easy in the Common law, wherein sometimes do happen variety of judgements, amongst the oldest professers of it) if before any prohibition brought (as it were to forewarn him) he should hereupon de drawn at the very first push into a praemunire. For by like reason, if a court Baron should hear plea of a matter above forty shillings, a praemunire in stead of a prohibition might be brought against them. Therefore inquire, and seek to inform yourself aswell in the premises, as of these questions following, what is to be holden for law: viz. in holding plea in an Ecclesiastical court 1. Doubt. of a temporal matter, whether there be not a difference, when it is propounded under the very name of a temporal action, and when it is propounded under the name of an ecclesiast. matter? And whether the judge be in danger before the matter be 2. Doubt. opened unto him, or no? For I think in no Court temporal or ecclesiastical, the judges peruse the writs, declarations etc. when they are first put in. And whether it be as great an offence in law but to hold plea, 3. Doubt. as to give judgement, and to award execution in an Ecclesiastical court of a temporal matter? Also whether it be like degree of offence for an ecclesiastical 4. Doubt. judge to execute a temporal matter by censures ecclesiastical, as it is to execute it, or a matter ecclesiastical by temporal, viz. fine, imprisonment, loss of limb, or such like? Likewise of what quality the offence is to go on in plea in a 5. Doubt. Court ecclesiastical after a mere temporal matter (as right of advowson, etc.) falleth in controversy, principally to be determined? Or to hold plea there in a matter worthy of redress, yet never of custom handled either in temporal or ecclesiastical 6. Doubt. Court, nor whereof any remedy lieth at the Common law? Also what offence it is to make laws temporal or ecclesiastical without the Prince's assent? 7. Doubt. What it is to deal in temporal causes or courts, without 8. Doubt. commission? and what in ecclesiastical? And lastly of what degree and quality of offence is it, for a 9 Doubt. Court temporal to hold plea of a mere ecclesiastical cause? or to deal in censures ecclesiastical? Or for such a court to hold plea of a temporal matter, being 10. Doubt. no competent judges thereof? as for example, if the Court of Common pleas, or the Exchequer should deal in pleas of the Crown, that be capital? with such like a great number. And so thus much for the first part. The end of the first part. THE SECOND PART OF AN APOLOGY, FOR SUNDRY Proceed by jurisdiction Ecclesiastical; of late times by some challenged, and also diversly by them impugned. This second part (especially) treateth of the two several ways of proceeding in causes Criminal, viz. by way of Accusation, and ex Officio judicis. Imprinted at London by the Deputies of CHRISTOPHER BARKER, Printer to the Queen's most excellent Majesty. ¶ THE PREFACE, wherein is declared, how the four opinions put over unto this place do fall in with the challenges of the Innovatours; and a general distribution made of matters to be handled in the second and third Parts. THe second part of this treatise containeth our proofs, together with answer to the objections made against the manner of practice of jurisdiction Ecclesiastical by those, who do even profess themselves to endeavour an innovation in the frame of government of this Church of England. But we mean not in this place to handle all, which they object in this behalf, but only some such of them, as touch the manner and form of the proceed in the exercise thereof. For it is known they take sundry other exceptions, as against the manner of calling to function Ecclesiastical, against the ordination, against sundry the callings and the functions themselves, against deriving of the jurisdiction Ecclesiastical from the Prince, against the matters handled by that jurisdiction, and against the manner of handling them in sundry other respects, condemning them as Antichristian and contrary to God's word. All which are of another consideration, and not fit here to be ripped up. I find four opinions (pretending that the laws of the Realm be against the manner of entrance into some suits, and against certain proceed Ecclesiastical) that are mentioned in the general Preface to have been put off unto this place, for avoiding of needless repetition, and as falling here more fit to be discussed, among other like objections of the Innovatours. The first of them that we put over unto this place is, that an Ecclesiastical court may not proceed without accusation or presentment: meaning (as I take it) a presentment by Officers sworn for that purpose. If this were true (according as the propriety of the words importeth) than Ordinaries might not so much as deal in those two excepted causes of matrimony and testament, nor in any other concerning rights and duties Ecclesiastical, but only in offences and crimes punishable by that jurisdiction. For an accusation or presentment hath none use, but in matters of crime or offence incident unto that jurisdiction to punish. Besides that, this opinion doth contradict the next following. For this implieth, that if the matter be Ecclesiastical, and that there be either accusation or such presentment; then may the judge Ecclesiastical proceed; so that if there be but a presentment without any accusation, his proceeding without a party, which is to proceed ex officio, shall be warranted. Whereupon doth follow, that proceeding ex officio is not tied to those two causes only of Testament or Matrimony, as the next opinion doth hold. For the second is, that no lay person may be cited ex officio in any cause, but either restamentarie or matrimonial: which if it were true, though a lay man be dùely presented for any crime; yet shall he never be cited for it, or brought into question, for want of an accuser to prosecute it. Concerning the citing of lay persons, absolutely in any cause besides those two, enough hath been said in the former part So that in this opinion the citing ex officio only remaineth needful to be further spoken of. Truly if the author of it had understood what he writ, he would never have put it in the tale or reckoning. For of all other causes Ecclesiastical whatsoever, there can be least use of proceeding ex officio in those two: because the chiefest, and almost only use of it is, in dealing against crimes and offences. But I will bring these two opinions into a brief thus: the first seemeth to permit proceeding of Office in an Ecclesiastical matter, so there be a solemn presentment precedent. The second condemneth all proceeding without a party (saving in those two cases) and so (in effect) in all causes, if it have none use in those two. The third of those opinions is, that albeit a matter be duly presented against a man, yet he may not be examined upon his oath, as of incontinency or such like. Whereby (I think) is meant, that he may not be so examined of any criminal and penal matter. The last opinion of the said four, 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 ever be had, when the judge proceedeth ex officio, except themselves list, which commonly none will thrust himself into, but upon some pique or humour of enmity. And so an accuser who for the most part cometh in of malice shall (by this opinion) have compulsories to force witnesnesses to testify: but a magistrate proceeding for satisfaction of his duty only, shall not. By the way may be noted, that hereby also that opinion is overthrown which holdeth, no man to be bound against his will to testify, but in causes matrimonial or testamentary: for accusation is only of offences. By this opinion is implied, that when there is an accuser, a man may be compelled and is bound to declare a truth against another. Which last being joined to the former, viz. that albeit a matter be duly presented (that is criminal, and may be penal to him) yet he may not be examined of it, upon his own oath: doth come to this pass, that of an Ecclesiastical crime, there is (by law) no way to convict a man, except some man will be an accuser, or else by voluntary witnesses qui sese ingerunt ad testimonium: viz. such, whom the very law of nations doth intend to be enemies unto the party, because they thrust themselves into the matter. You are not to marvel that the opinions of those, who shoot at one general mark, are so absurd, and do so vary and jar among themselves, and do as it were confront one another. For you remember, quòd uno absurdo dato, multa consequuntur: and that truth is simple, constant, and like itself, and therefore no truth is disagreeing from another truth: whereas untruth is manifold, and variable from itself. For two contraries can never be both true, but they may be, and are oftentimes both of them false. The first of these opinions than taketh away all proceeding, either in crimes, or in any other causes, where there wanteth an accusation or such solemn 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 oath of the party, in a matter criminal and penal. The last would overthrow all urging of witnesses to testify, in a cause moved ex officio, viz. where there is none accuser, yea though there be a solemn presentment. These four challenges (among others) are also made against jurisdiction Ecclesiastical, by the innovators, not only for contrariety unto the laws of the Realm, but for contrariety also to Canon law, to Civil law, to God's law, and unto reason, as is by them pretended. But aswell their other exceptions, that of late have been taken by any of them, and stirred up against the manner of exercising jurisdiction Ecclesiastical, (so far as I can learn) as also these four last recited falling in with them (albeit all their said opinions be not holden by every of them, but according to the variety of their humours and several capacities) may be reduced (not unfitly) unto these two heads. They do respect, either the manner of entrance into the suit, or else the form of proceeding in it. In the manner of entrance (you see) they challenge it, for that it is not either at the suit of some accuser, or upon a solemn Presentment: Or for being ex officio in any other cause, than those two of testament, or matrimony, wherein (in very deed) such proceeding hath little or none use. In the course of proceeding in the suit, they take exception, partly against some principal act therein used: and partly against some meaner circumstances. In that more principal act (viz. of giving an oath) they impugn either the examination upon oath of the party himself, or the examination of witnesses, concerning their brethren's actions. Touching the oath of the party, both fault is found by some with the ceremony used in giving the oath, and because the oath is given in a cause criminal and penal to themselves. In the ceremony at taking an oath, there is reprehended (by some) the laying of the hand on a book, and the swearing by the book, or by 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 have not distinct knowledge of every particular, whereupon they are to be examined, before they resolve, whether to take the oath or not: and other are ensuing the oath and examination: as that the judges do not rest in that which is affirmed or denied upon their oath, but oftentimes proceed to a further examination by witnesses, upon the same points. All which I mind (God willing) to prosecute, in the same order, that I have here set forth: having first touched some matters, that I hold not unnecessary to be known by the unlearned sort, for the better opening and understanding of the disputations following. THE CONTENTS OF the Chapters of the Second part of this Apology. OF the distinction of offences: and several kinds and ends 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 several Courts of this Realm. Of the sundry kinds of objecting crimes by a party mentioned in the Civil law: as by reason of a man's public charge and function: also by way of chapter 3 Exception, Supplication, Complaint, Delation, and Accusation. The true signification of the word Accusatio: his divers acceptions, definition & exposition thereof; with some reason of the frequency of accusation, in courts of the Civil laws, in former times is also declared. That the prosecution of crimes by way of Accusation, is in most places forbidden chapter 4 or grown into disuse: the reasons hereof, be partly the danger to the Accusers, and partly the hatefulness of that course. Therein also is disputed, whether all Accusation be unlawful; and certain points delivered to be observed by all them, that will accuse others. Of the several 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 inquiry general and special: of inquiry special ex officio nobili sive mero, mixto, & promoto: and of the privileges of proceeding ex mero officio above the other. Of Denunciation, a special means of stirring up the Office: of the manifold chapter 6 use thereof, in the old Common weal and Empire of Rome: and at this present on the other side the Sea: the general acception of that word; and of four kinds 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 Ecclesiastical Commission, and in Ordinary courts Ecclesiastical in this Realm. That the Civil and Canon laws allow sundry means to ground a Special inquiry chapter 7 of office, against a crime, besides Accusation and Presentment: therein is also contained an answer to a supposed rule: and declared how from General they descend to Special inquiry: and that besides those two, either à Fame; or Clamosa insinuatio; or Private judicial Denunciation; or Canonical Denunciation; or Indicia; or taking with the manner: or other Notoriety of the fact: or appeachment by some of the complices: or collusion of the Accuser: or the not objecting in due time, that every of these do want: or when the inquiry tendeth but to a Spiritual punishment, may severally any of them serve to warrant such inquiry: with some observations, touching the nature of most of these. That to proceed sometimes against an offence, otherwise then upon an Accusation chapter 8 or Presentment: or then upon an Appeal or inditement (which too, at the Common law have respective correspondence unto the two former) is no divers, much less any contrary or repugnant course to the laws, statutes, and customs of this Realm: this is proved by Common law, statutes, and practice, in proceeding informative, and Punitive: with answer to certain objections 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 matrimonial: and that the drift of that opinion is against proceeding of office in matters criminal: the necessary use and equity of proceeding (sometimes) criminally, by the judges office, in courts both Temporal and Ecclesiastical. Containeth an answer to some further objections, made against the conveniency chapter 10 and reasonableness of proceeding against crimes of office. That the laws of the Realm do use Inquiries and proceed ex officio; that chapter 11 they allow it in courts Ecclesiastical: with answer to some objections, that are made to the contrary. Is set down a reply to the Notegatherers answers, given to certain reason's chapter 12 that have been made long agone, for to show the like course to be also practised in Temporal courts: and an answer to his reasons brought to prove, that in proceeding of office, there is some contrariety unto the laws of England. That the inquiry ex officio against crimes, is allowed both in Civil or Temporal chapter 13 courts, and in Ecclesiastical also, by the two laws Canon and Civil. Containeth an answer to such objections, as upon the Civil or Canon laws, chapter 14 are brought against all proceed of office in causes Criminal, by the Treatiser and the Notegatherer. inquiry and proceeding of office without an accuser, and grounded upon chapter 15 some other of the means afore proved sufficient to enter into such inquiry, is approved by sundry examples of Scripture. An answer is made to such objections, as out of Scripture or Ecclesiastical chapter 16 writers be made, against criminal proceeding of office; by the Notegatherer and others. THE SECOND PART of the Apology published in defence of sundry proceed by jurisdiction Ecclesiastical. CHAP. I. Containing a distinction of offences, and several kinds and ends in punishing them, with the necessity of punishments. ALl the controversies remaining to be handled in either of the two parts ensuing, do rest (chiefly) about the manner of discovering of such crimes as are punishable by ecclesiastical jurisdiction. And because many be talkers of these matters, who understand but little the true nature of them; therefore to give light unto the whole disputation, & to make it appear to be a matter of no small consequence, but much to be stood upon; before I proceed further, I mind to touch some necessary points serving for the better understanding of all proceed against crimes. And first of the diversity of faults in general, than the several kinds of punishment of them, and the ends of such punishing, and of the necessity of punishing them: whereupon (by consequence) dependeth a necessity also to have them first discovered. All 1 Gl. in c. peccatum de reg. jur. in 6. gl. in c. si peccatum. dist. 1. de poenit. August. in quaest. in Leviticum. faults are done either by committing; as where in action we do that which is evil, or forbidden, called properly Peccatum, a sin, a crime and offence: or else by omitting and leaving undone, 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 doth it not, to him it is sin, saith S. 2 jacob c. 4. V 17. james. And yet these two be often 3 c. d. si peccatum. confounded together, and the one is taken for the other in sundry writers. Of both these sorts, some there be which (by the Civil laws) are called Crimina ordinaria. Such 4 L. 3. § poena ff. de crim. stellionatus. as be known by a peculiar name, and have in law a certain penalty expressed for the offenders in them, by special 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 uncertainly to some, as occasions fell out, or for that they have no peculiar and proper name in law, or else no certain punishment determinately appointed (by law) for those who offend in them; and most of them are therefore for the variety of them (upon the great variety of spots which be in a certain beast named 1 Plinius. Stellio) termed in that law Crimina Stellionatus: and may be englished by the general term of misdemeanours: and such be many of these crimes which usually are inquired of and examined in the starchamber. Of animadversions or chastisements exercised against offenders for either of these kinds of faults: 2 Aul. Gellius, lib. 6. c. 14. some be by word only, and some be by deed. Of those which be by word alone, (which we may English Advertisements) the one is significantly by the Grecians termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 admonition, and the other 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 rebuke or reproof. The end of those animadversions or chastisements which consist in words, is referred only to the reformation & amendment of him, upon whom they are used, by making him sorrowful for it, & more circumspect & careful how he carrieth himself 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 only, are in the Greek tongue very aptly distinguished being of three several sorts, according to the several ends unto which they are referred. For every actual punishment and penalty is either 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, the first of actual punishments (as Aristotle the most exact observer of the propriety both of words & matters 3 Aristot. 1. Rhethor. noteth) is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉: it is such punishment, as especially aimeth at his bettering, upon whom it is inflicted, being a punishment tempered with mercy. For 4 c. duo. 33. q. 4. c. fraternitas. 12. q. 2. c. qui sincera, etc. disciplina. dist. 45. it is when the party is in deed punished as an offender, yet the rigour of the penalty is spared, & he commiserated and pitied as a man, and therefore apt enough to offend through human frailty. The end of the second sort of actual punishments called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉: that is to say, is done for his cause that prosecuteth it, or is grieved; to the intent there may be some satisfaction. This may happen in two several sorts. viz. either for the preserving or retaining the dignity of the 1 L. 1. & 2. ff. de legibus. law, or of the 2 L. obseruandum. ff. de ossic. Praes. magistrate happening to be violated (non enim licet impunè legesirridere transgrediendo) as by fine or such like: or else for the contentment of some private person, that hath received injury by such offence; which in the French laws is called amend honourable; and with us in England are either damages against him (as is in actions of the case) or else the offenders public acknowledgement of the fault. The end whereunto the third sort of actual punishment, called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, looketh, is especially for the example of others: and may be Englished an Exemplary punishment: being usually inflicted for more heinous crimes. Plato 3 Plato in Goegia. affirmeth of this, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. It is (saith he) done for others, that they who behold the punishment, may at least for terror thereof, become better and amend. And elsewhere in the same book he saith to this effect, It is required, that every one which is duly punished, be either himself reform, and made better thereby, or to be an example unto others to reform themselves, at the least for fear of like punishment. To which purpose the 4 Demosth. contra Neoeram. Greek Orator also hath a like sentence of this matter. Plato in his 5 Plato 9 de legibus. books of laws assigneth one other end of actual and exemplary punishment: which is, that they are also inflicted in grievous offences, upon a very detestation and abhorring of the crime. For which cause even brute beasts, yea and sometimes insensible creatures also, are (in a sort) punished; by whose occasion some heinous deed happeneth. Of brute beasts slain in this respect, we have example in Gods 6 Leu. 20. V 15. & 16. joseph. lib. 4. antiqui●…. c. fin. own law. The Romans did of purpose nourish up continually dogs in their Capitol, to give warning of any secret approach by night; and when the old Gauls sacking Rome, had almost secretly surprised the Capitol also: because the dogs at that time did not bark to give warning, they had their legs broken, and in memory of a detestation 7 Livius lib. 7. Plin. lib. 19 c. 3. & 4. & lib. 1. cap. 22. hereof, some dogs every year afterward were put to a kind of punishment. for certain were yearly split alive upon a twiforked stake made of elder-tree, and set up in that sort publicly, betwixt the Temples of juventus and Sumanus in Rome. And we read, 1 Aeschines contra Ctesiphontem. that amongst the Athenians, insensible creatures, as stones, trees, iron, and such like (which by their falling had casually occasioned the death of any man) were solemnly, as it were, banished from thence, and removed from the common use and sight of men. The 2 L. 1. C. de falsa moneta. Civil laws do appoint the very houses to be overthrown where forging of money hath been used. And upon the same grounds doth the Common law of this Realm, give Deodands to the Queen, as things accursed, and to be either (at her highness pleasure) destroyed, or bestowed upon the poor: and the houses of attainted persons in treasons, to the intent to have them demolished, and the trees about them to be rooted up; and so in this behalf is also the law in France, yet in frequent practices. All which tend to signify, in what detestation & abomination 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 justly abideth them, if they commit the same for which even brute beasts and insensible things are so duly, as it were, punished. For either it doth, or at least wise aught to work this effect in men. In which respect Aristotle 3 Arist. 1. Rhet. ad Theod. c. 14. saith, that punishment is a remedy or medicine to be used against faults. And so 4 Lib 3. Var. epist. 14. Cassiodorus gravely writeth: Remedium est contrapeccatum, accelerata correctio. Quick punishment of sin, gives a remedy against sin. For all crimes and offences be (in truth) but as so many maladies and distemperatures in the body of the Church and Common weal; which if they be tolerated to grow (without restraint & coercion of laws) will quickly spread like a canker, either to the destruction, or to the great and apparent danger of both: so that the necessity of punishments and penalties, by the very ends unto which they are referred, may sufficiently be thus approved unto us. The necessary use of them might be further enlarged and enforced also, by the consideration of sundry, who are interessed in this behalf. And first in respect of the Magistrate himself: for it is said, Non 5 c. dilecto. de sent. excomm. 〈◊〉. 6. caret scrupulo societatis occultae qui manifesto facinori desinit obuiare. He that list not to oppose himself against a crime manifested unto him, may justly be had in jealousy himself, that he is a partaker with the offender. And again 1 August. in ep. joan. tract. 7. Charitas non est sed languor, ubi mali mores digna poena non castigantur. It is not charity but faintness, to be remiss in punishing offences. And of such as have authority to punish offenders, it is said, 2 Aug. epist. 50. ad Boni●…. c. error. dist. 83. Si illos negligant & perire permittant, ista potiùs falsa mansuctudo est crudelitas. And again, Error cui non resistitur approbatur. But of that Magistrate which punisheth offenders, it is thus said, 3 Aug. in Enchirid. cap. 72. Qui emendat verbere, in quem potestas datur, vel coërcet aliqua disciplina etc. eleemosynam facit, quia misericordiam praestat. To an offender himself it is behoveful, that he may be recalled thereby from his wicked course. for 4 Cassiod. lib. 3. Var. epist. 14. malum cùm perseverat, augetur: and 5 c. cum tanto. de consuetudine. tanto sunt graviora peccata, quanto diutiùs animam detinent illigatam. Therefore 6 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 go on in wickedness, or to commit the like, punishments be very necessatre. For in regard hereof, Tully saith, 7 Pro Milone. Impunitatis spes magna peccandi illecebra. And in law it is said thus: 8 c. ut clericorum. § 1. de vita & hon. cler. jussum est rectoribus provinciarum, ne sinant crimina coale scere, sed puniant, ne facilit as ventae incentiwm tribuat delinquendi. To like purpose Ambrose 9 Serm. 8. in psal. 118. V 2. writeth: Nun etiam cum uni indulget indigno, ad prolapsionis contagium provocat universos? And therefore it is gravely 10 c. sed illud. dist. 45. said by another: Quae est ista misericordia, quae bonitas, uni parcere, & omnes in discrimen adducere? Lastly in respect of the whole Church and Common wealth, punishments are most needful. Examples are plentiful in Scripture, where for the sin of a few, whole armies and societies have been punished. This we may see in 11 josua. 7. Achan, whose stealing of the accursed garment, etc. was a cause of the overthrow of Israel in battle. So for 12 1. Sam. c. 4. the sin of Ely and his sons many thousands of Israel were slain by the Philistims. And to like effect 13 1. Reg. c. 2. Solomon speaketh, when he giveth charge to kill joab. Smite him, (saith he) that thou mayst take away the blood which joab shed causeless, from me, and the house of my father. And 14 jon. c. 1. for jonas his disobedience, the whole ship was in danger to be wrecked. Therefore an ancient Father 15 c. sed illud. dist. 45. saith, That as one diseased sheep infecteth the whole flock, so by the fornication or other crime of some one person, often oftentimes the whole people is holden defiled. Upon these and such like considerations, the light of nature did teach even heathen men thus: 1 l. ita vulneratus. ff. ad l. Aquil. Interest semper Reipub. delicta puniri. And 2 l. 7. § finali. ff. de fideiuss. poenas ob maleficia solui, magna ratio suadet, the whole common wealth hath an especial and continual interest, and great reason also moveth to have wickedness punished. If then upon so many & weighty causes it be needful to have crimes punished, can it be denied but that all good means are to be used, to bring them to discovery and conviction, which must needs go before the punishment of them? 3 l. aut facta. ff. de Poenis. Multis grassantibus exemplo opus est, saith the law: where there be many transgressers, it is needful to have some made an example to the rest: and therefore 4 l. eum qui. ff. de iniutijs. Peccata nocentium expedit esse nota: it is most expedient to have evil men's lewdness made known and revealed. CHAP. II. There in is showed how there are two sorts of prosecution of Crimes and Offences; viz. by a Party and of Office; and the practice of them in Scripture, and in the several Courts of this Realm declared. NOw, the means to bring any Crime and Offence into question before judges and Superiors in authority, must needs be, and so by all laws, and in all common weals generally (that I have read of) are either by prosecution of some party, or else upon the Office of the judge: the 5 jul. Cla. lib. 5. § fin. q. 3. Office of the judge is occasioned, and as it were set on work, either upon relation made unto him by some other, or upon his own mere motion, without any relation from others, which may happen, as when an outrage or misdemeanour is committed in his sight, or in some public presence, where he than happeneth to be. In the law of God and examples of holy Scripture, I do not call to my slender remembrance where any criminal matters be appointed & commanded to be prosecuted by a Party: & but in very few places, where any have been used, who might properly be termed an Accuser, or a Party. For albeit in sundry places of Scripture we find Accusers mentioned; yet in many of them, such cannot be accusers or parties (properly and strictly so termed) but only in a very large signification. because their testimonies were received against those, whom they denounced of crimes. For where a man is party himself, making it as it were his own cause, and not the judges office; there it is no reason, that his own testimony should be admitted. 1 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 man's own cause; whereof he may reap benefit or damage. But more (God willing) shallbe spoken hereof, in his proper place. Touching bringing crimes into question in Temporal Courts of this Realm, (that deal in matters civil or criminal) it is to be first remembered, that these Courts be of two sorts: some using the Queen's immediate authority, yet the same still actually being in her Highness &c. as all the Courts at Westminster: Others using but a kind of mediate authority, derived from the Crown; yet by her Grant made (in some sort) their own, as derived down thereby unto them. For sundry subjects, albeit they have but a derived power from the Queen (as from whom through the dominions of this Crown, all justice, and jurisdiction to administer it, whether Temporal, or Ecclesiastical, doth originally flow:) yet do not their Processes run in the Queen's name, nor her seal is used to them. Of such Temporal Courts as sit but by such a mediate and derived authority from the Queen unto them, and therefore use not her Seal or name; some were in times past established for causes Martial, as the 2 Ric. 2. cap. Constables of England, and the Earl Marshal his Courts (whereof I have very small experience:) and some for matters pertaining to the Peace. And of these last, some be for causes growing within the land, as Courts of Counties Palantine, of cities and towns corporate, Sheriffs turns, and Court-Leets, or views of Francke-pledge: and others be for causes Marine, as all the Courts of the Admiralty. In temporal courts of counties Palantine, in courts of towns and cities corporate, saving where some special custom prevaileth (as in London many) in Sheriffs turns and in leets, the course of the common Law is (for the most part) observed. In Admiral courts, the order of the Civil law of the Romans (because it is the written Common law of most nations not barbarous, with whom we have to deal) is especially used; saving where by Statute or Custom, it is otherwise directed. Of such courts as exercise the Queen's immediate authority, some have no letters Patents of Commission to direct them; as the Parliament, which is called, and sitteth by the Queens only writ: the Chancery, from whence all original writs do come; and yet the L. Chancellor or L. Keeper have no Commission by letters Patents, but receive their authority by delivery unto them of the great Seal, as I am informed: the starchamber (established of the Queen's privy Counsel, and some others to be called) partly by prescription, and partly by Statute: the court of Requests by custom and prescription: And the Counsel in the Principality and Marches of Wales, authorised by Act of Parliament unto such, and in such manner, as her Majesty (by instructions under her Royal handwriting) shall from time to time direct. But those Courts Temporal, which sit by Commission and letters Patents for exercising (in stead of her Highness) the Queens own and immediate authority, are either such, as be usually now holden at Westminster, as the Courts of the Queen's Bench, the common Pleas, the Exchequer, and the Court of Wards and Liveries: or in other places of the Realm abroad, as Courts of General Assizes, Nisipriùs, jail delivery, Sessions of the Peace, the Counsel established in the North parts, the Court of Stannery in Devonshire and Cornwall, and (as I have been informed) the Court for trial of life and death at Halisax, and such like. I know, that by speech, and by use also (in sundry men's writings) touching the aforenamed Courts; such only (as it were by a kind of appropriation) be most usually called Courts of the Common law, wherein matters of fact, touching hereditaments, contracts, or misdemeanours be tried by a jury of twelve men, because this trial is more frequent than any other. But yet we are not to think, that none but these may truly so be named, as though the other were contrary to the Law Common; seeing they be also allowed by the Laws, Statutes, or Customs of this Realm, aswell as those which proceed to trial by juries. In the Courts afore specified that proceed to the trial of crimes, by juries of twelve; if there be any Appellour, as of murder, robbery, or such like; then may the prosecution most properly and truly be said to be done by an Accuser, and at the prosecution of a party. If it be for the Queen, whether it be by way of enditemen●… and be preferred by the judges themselves, or by the Queen's Attorney general, or by some private person; o●… be by way of Information put up against some offence made penal, and not capital, (and this either by the Attorney general, or by some other person) than all such proceed, are in truth done ex officio Iud●…: And this, either of mere and entire office, as when the judge himself preferreth it; or ex officio promoto, as when it is first related and preferred up unto him, and prosecuted by any other. But in this last case, there is a kind of mixed proceeding betwixt both. And albeit the Informer do prosecute partly for himself; yet is it for the Queen also whose the Court is, and so may be truly said to be of office. This appeareth plainly, in that the Appeller (because he Is a mere party) is not so favoured, assisted, and p●…iuileged in many respects; as when the prosecution is instituted of Office for the Queen. For the Appellee may put it to trial of battle with the Appellour, which he cannot do upon inditement; at the suit of the Queen. Like wise, whosoever doth prefer the endi●…ement; or information, though the defendant happen to be acquitted: yet the preferrer payeth neither costs, nor damages, nor is subject to any action in that behalf, as an Accuser and party both is, and aught to be. But if the defendant be convicted (so the crime be not capital, but finable:) then is the fine, if it be imposed by the Court, to come wholly to the Queen: If by poen●…ll statute; then (most commonly) it accrueth (by disposition thereof) partly to her Highness, and partly to such private person as informeth. And the inditements be termed upon their beginning, Inquiries or Inquisitions, which are always ex officio. Now these and such like; be notes and marks; whereby you may discern proceed of these Courts in criminal causes prosecuted by an accuser or party, from that which is done upon the office of the Court: for these two prosecutions do differ in the end; and they differ also in certain privileged points, which that of Office hath, above that which is by a party. In the end, thus they differ; because prosecution of Office aimeth at publicam vindictam, a public punishment, whether pecuniary, to acerue to the Queen, or corporal. In deed, in all capital causes, vindicta is (in truth) public, and exemplary, albeit both the Appellour, only do prosecute (perhaps after the Queen have pardoned it) and that he also seek nothing else, but private revenge for his own injury received rather than for an example to be made of the offender, or for the Common weals satisfaction, and contentment. Of the contrary side, prosecution in these Courts of an offence criminal (being not capital) by an Accuser or party, propoundeth (for the most part) but a Civil end, that is, some satisfaction and amends to be made unto the complainant damaged: as in actions of sundry trespasses, in actions of the case etc. And then do the Civilians term this Causa criminalis civiliter; and the former, Causa criminalis criminaliter mota. Besides such difference in the end, there be also some privileges that are granted to the one course of proceeding, which are denied to the other; whereby those two kinds of prosecution do differ. As that in proceeding of Office for the Queen (as was touched afore) the defendant may not gauge battle against the preferrer, as he may do against the Appellour: neither hath any defendant in an inditement or information (though he be acquitted) any costs allowed, when the suit is for the Queen, as he both hath and ought (in justice) to have, when the suit against him, is only prosecuted by a private and wrongful Accuser; that was not able to justify his declaration (as we may term it) accusatorie, of such private offence or misdemeanour, whereupon he sued him. Now let us consider also how those Courts which have none usual trial by juries, do proceed against offences. First the high Court of Parliament hath no great use (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 upon the Notoriety of the fact happening among them, or upon credible relation of some; but wholly without any Accuser or party taking upon him the proof thereof, with any hazard, of so much as Charges for wrongful vexation; if it should so fall out to be accounted. And therefore such proceeding, is also of mere Office. In the Star Chamber, only crimes and misdemeanours be inquired of; but especially those, which I called afore Extraordinaria Crimina: viz. such as have either no certain name, or at least no set and determinate punishment, by Law appointed; and may not be punished there, by loss of life or of limb; but either by Fine, by open shame and infamy, by imprisonment, by nailing or cutting of ears, or deforming the face, by banishing from some certain place of the Realm, or forth of all the Queen's dominions, or unto a certain place abroad; or by condemnation unto the Galleys perpetually, or for a time, etc. The misdemeanours punishable in the Star Chamber, be brought thither into question for the Queen only, either by her majesties Attorney general (and that is by bill of information, or o'er tenus) or else be brought upon bill preferred by some private person, that is grieved. In all which Cases, albeit there be found one which doth prosecute: yet can he not truly be called an accuser, or a party; for the reasons before alleged, viz. of the end propounded, which is publica vindicta; and for other great assistance and privilege, which that Court giveth to the prosecutor against the def. in respect that it is for the Queen. And namely that he is to answer not only to the Bill upon his oath, but also to Interrogatories more particularly criminal than the Bill, and the Interrogatories without counsel: which (in truth) therefore needeth not, because they are briefly drawn article-wise, and concern but matters of fact, within his own knowledge as is intended. Upon all which matter it followeth, that the prosecutour there is but as a relator, partly to stir up, and partly to ease the office of that Court, by furnishing it with proofs. Nevertheless I am not ignorant, that sometimes, when it appeareth manifestly to their Lordships: that the plaintiff (being some private person) hath calumniously, and of malice only, vexed the def. than such plaintiff there, is (and justly also may be) condemned in costs and damages, for his apparent calumniation and wrongful molestation of the def. Unto which courses of the Star Chamber, I take the Courts of the Queen's Counsel established in the Marches of Wales, and in the North parts, to be also agreeable in their inquiries and examinations of crimes and misdemeanours. In the Chancery and Court of Requests, (being both Courts of equity) if any misdemeanours or crimes be deduced and laid down in the Bills (which happeneth very often:) yet are they not criminally laid, to have the def. punished for them: but only Civilly, to the intent, that the plaintiff may have an amends and private satisfaction, as shall be deemed to be equity. And therefore such prosecution, is not by Office of the Court; but only at the party's suit: albeit the Office in the Chancery do thus far assist the plaintiff, for sifting out of a truth; that the def. must answer, even to the Criminal points of the Bill, upon his corporal oath: But he may not (in those two Courts) be put to answer the plaintiffs interrogatories upon his oath; except the plaintiff will be concluded by the def. answer unto them, and seek to make no further proofs. But of all the Courts temporal aforesaid, aswell those which proceed to the trial of misdemeanours by jury, as of others; I think this may be generally affirmed; That when any lewd practice, abuse, or contempt (not capital, not tending to mutilation) is supposed to be done against the Court; there (even of mere Office without any Accusation or prosecution of any party by Bill) the judges of such Courts, do Inquire thereof, by examining and by interrogating every one that is holden suspected thereof, or to be privy thereto, upon their corporal oaths first taken. Let thus much then suffice for the two sorts of prosecution, and bringing Crimes into question, by the course mentioned in Scripture; and by use and practice in Temporal courts of this Realm. CHAP. III. Of the sundry kinds of objecting Crimes by a party mentioned in the Civil law: as by reason of a man's public charge and function: also by way of Exception, Supplication, Complaint, Delation, and Accusation. The true signification of the word Accusatio, his divers acceptions, definition, and exposition thereof, with some reason of the frequency of Accusatio in Courts of the Civil laws, in former times is also declared. THe same, and none other manner is likewise practised to bring offences into question by the laws both Civil and Ecclesiastical, in such Courts, as either of those Laws have place and use: That is to say, either by a party, or else by the Office of the judge. Crimes in such Courts may be brought into question before a judge, upon a party's prosecution (whereof we are first to speak) two manner of ways. The one commendably, the other not so commendably. commendably in two sorts, either by reason of some office and charge, or by reason of a man's own necessary interest. By reason of a man's Office and duty, as when Triumuiri regij, Procuratores Fisci, Aduocati regij (as French writers call them) or (as we speak and practise here in England) when the Queen's Attorney general (who by duty is bound thereunto) preferreth indictment or information against some suspected criminous person, or wrong doer. This hath very near affinity with that Denunciation or Presentment (called judicial) which is to be spoken of hereafter. And albeit there be a kind of party; yet it is of the nature of proceeding of Office, which I also touched in the Chapter next precedent. The Commendable prosecution by a party against an Offence, in respect of a man's own private interest; is either by way of Exception and challenge, done in his own necessary defence, and to avoid punishment; or per viam querelae, by way of Complaint for attaining his right. Exception is sometimes taken against witnesses that be brought against us, to this intent only; that by objecting and proving them to be lewd or affectionate persons, there may no credit be given to them in their depositions; and not to have them punished. And this objecting of Crimes by way of Exception, hath not the force of an Accusation. Or else 1 l. 1. ff. vi. bon. rapt. l. 2. ff. de tab. exhib. it is taken (before issue joined) against him that would accuse us, by our objecting of some crime also unto him. Now if this be done only 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 proved guilty.) But if he that so excepteth, do set down the time, place, etc. of such crime objected against his adversary, and do also instant the judge to condemn 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 sorts: the one extraiudiciall, when 2 l. 1 C. Retum amotatum. a man oppressed, humbly and civilly complaineth and expostulateth of some wrong done unto him, desiring remedy, not so much to have the other punished, as that himself may, (by ordinary course of law) have reason done him. This may properly be called Querimonia, a supplication to the Superior. The other Querela, is judicial, being a kind of Appellation; 3 l. Arbitrio. ubi gloss. & Bart. ff. qui satisdare coguntur, and is either done by complaint unto the sovereign Prince, of some wrong done by an high Court (such as Praefectus Praetorio kept among the Romans) from which none Appellation lieth: or else is a Complaint unto a superior judge, of refusal, or delay to do justice, by his inferior judge; with us commonly termed a double Querele. Thus much for the most commendable sorts of prosecution of offences, instituted by a party. 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 4 l. 10. §. Qui nomen. ff. de iure patr. secret accusation or imputation of some crime against any, made unto a Magistrate, by him that is no way particularly interessed in the cause. Against such, was that law 5 l. pen. C. de Delatorib. lib. 10. of Constantinus conceived, whereby it was provided, that no private person should be a delatour, or preferrer up of crimes; and that none should be put up, without the Advocate of the finances, or revenues of the crown; whom we call the Attorney general. And of such Delatours or Tale-carriers was this worthy saying of an Emperor meant: Princeps, qui delatores non castigat, irritat. Privy accusers & backbiters take encouragement enough from such a Prince, as will but hear, without giving them any rebuke. Which saying, Suetonius 1 Sueto. in Domit. attributeth to Domitian; and Plinius 2 Plin. in Panegy. de Traiano. unto trajan. There is a second sort of Delatours & preferrers up of crimes, which deal more openly than the former. And we find also in law, two kinds of these. The first be a kind of calumniators or Sycophants, 3 l. nostris C. de Calumniator. that prefer publicly (yet under other men's names and persons by them suborned and excited) some criminal matter against any person. The other sort be those, who (for gain or reward) do in their own names, prefer up criminal and penal matter against others. And of these, some do inform of concealed lands or goods; due and escheated to the common treasure of the Crown; yet supposed to be detained wrongfully, by any others. And these by the Civil law 4 l. ex varia C. de Delatorib. lib. x. are said to be odious and hated of other men; because they do it for no duty to the Prince or common weal; but upon a greedy desire, to enjoy to themselves, part of the gain by others loss: being (by that law) some time a third, and sometimes a half part of that, which they find (in truth) to have been detained by wrong, intruded upon, or usurped. Others be mentioned there also, who prefer informations against offenders of such laws, as do inflict mulctes & pecuniary penalties for the offence; upon hope of such gain, as (by those laws) is assigned to come unto their share. This kind of Delators in this Realm, we call Infourmers, or Promoters: though their prosecution in this Realm do much participate (as afore is showed) with that, which is called ex Officio promoto, & in that respect, be greatly privileged. Among the Romans such were called Quadruplatores, because commonly the fourth part of the penalty, was awarded unto them. So that by like reason our Infourmers may be called in Latin Triplatores, when they have a third part; and Duplatores, when they have the one half, as they have in this Realm (upon penal statutes) most usually. In what detestation and hatred this kind of men (though not altogether unnecessary) were had amongst the old Romans, this saying of Quintilian doth manifest, 5 Quintil. lib. ulti. cap. 7. Ad deferendos reospraemio duci, proximum est latrocinio. To be induced for reward or gain, to prefer criminal matter against offenders, is next a kin to robbery. And in deed, Delatours were far more stomached, and maligned, than other accusers, as may be gathered by these places in the Civil law. 1 l. 3. C. de Malefic. We do judge him that accuseth in such a crime, to deserve rather reward, then to be called a Delatour. And again in another place: 2 l. Nulli. in fine, C. de. Epis. & Cleric. Let not such fear either the name or suspicion of Delatours. The last of those ways, by which a party brings offences into question and discussing before a judge, is Accusation. It is called 3 Isidor. ut in c. forus. de verb. signif. Accusatio ab Ad, & Caussa: quia Accusator quasi ad causam vocat. There be other words of near signification unto this, yet not the same altogether, as postulare, when it is used with the ablative 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 said (saith 4 Servius in prim. Aeneid. one) properly incusare, such as be our betters, and to accuse those, that be our equals or inferiors. But this difference is not much observed. 5 l. Qui accusare, C. de edendo. l. Si maritus. § Si negaver. ff. de adulter. This word Accusation is sometimes so generally taken, that it signifieth an Action in a Civil cause; like as, on the contrary side, Action is taken for Accusation. Tully, pro Milone nameth it Actionem Perduellionis. But most properly it is called Accusation, when it is intended in causes Criminal. We read of inward, and of external, or outward Accusations. Internal Accusation is of a man's own conscience. Such is the Accusation spoken of by Solomon. 6 Proverb. 18. vers. 17. He that is first in his own cause, is just: or as the vulgar Latin translation readeth it, The just man, is the first Accuser of himself. external, or outward Accusation is either Private, or Public. Private is either betwixt enemies, or betwixt friends. That private Accusation and imputation which is among enemies, is of three sorts: either spiteful upbraiding, called of the Grecians by the general name 7 Plutarch in vita Publicol. of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, a word also fitting every Accusation: or reproach and reviling called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉: or else Calumniation; that is, malicious or false wresting of his enemy's words or actions, to an offensive purpose. Private Accusation of one friend touching another, is nothing else, but a friendly expostulation with him, that is supposed not to have dealt singly or considerately, in the course of good friendship, called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Grecians. That Accusation which is public, is either civilly moved, that is, for private amends unto the party grieved: or criminally, that is, for some public punishment; whether it be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. And it is that Accusation, which here we especially treat of. This public Accusation, is sometimes done o'er tenus; that is by bare words without writing, which the Grecians do express also by the aforesaid name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. But most usually public Accusation is made by writing. That, which is conceived in writing, in a more large signification, containeth and reacheth even unto those preferring of crimes (afore spoken of) that are done by Exception or Challenge, by Complaint, or by Delation. And unto this public Accusation, which is of more general acception, that definition of Aristotle agreeth: viz. that it is a public declaration against some, of injuries or crimes committed. But in the strict and proper signification it is taken for that solemn Accusation termed by the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, and also sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; when as this latter is not taken generally, but for the most especial kind thereof only. The effect of this Accusation, when the crime declared is proved to be true, and by arguments convicted; is called by the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; that is, 1 l. indicasse. ff. de verb. signific. (as the Latins do express it) arguere. There is also another different acception from the former, of the word Accusour, that is not hitherto touched: which is, when that word is applied 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unto any, that testifieth some criminal matter against another. And in this signification, we do find it very 2 Vide infr●…. cap. 15. usually taken in holy Scripture, as shall afterward more fully appear. So in sundry statutes of this Realm, as namely in these words of a statute; viz. duly accused or detected by two lawful witnesses: 25. Hen. 8. cap. 14. and in such other statutes; whereby is required, that the accusers be brought face to face, against the prisoner: meaning thereby such witnesses as are to give evidence (upon their oaths) against the party convented. Hereof we have divers examples, and namely in these words of a statute, 3 1. Ed. 6. ca 12. in fine. That no person shallbe convicted etc. or suffer etc. unless the same offender etc. be accused by two sufficient & lawful witnesses, as shall willingly without violence confess the same. Where the witnesses sayings are called Accusation, & their Depositions, Confession. Likewise in the same King's days, where it is thus provided, 1 5. & 6. Edw. 6. cap. 11. That no person shallbe convicted etc. for any treasons etc. that now be, or hereafter shallbe &c. unless the same offender be thereof accused by two lawful accusers: which said accusers at the time of the arraignment of the party accused (if they be then living) shallbe brought in person before the party so accused, and avow and maintain that, that they have to say against the party, to prove him guilty of the Treasons or Offences, contained in the Bill of indictment. So that here, those that give evidence to prove the matter of the inditement (which must needs be the witnesses) are called Accusers. which termein these & like statutes, seemeth to have been borrowed from the common speech of men (who often use to say thus; Who is able to accuse me of such or such things? meaning, to testify against them) rather then that the true propriety of the word was there followed. For justice Brook in his Abridgement testifieth, 2 Tit. Corone. nu. 220. That the common trial at the Common law is by jury and witnesses, and not by Accusers. So that albeit witnesses touching offences (by some statutes and by usual speech of the vulgar sort) be termed Accusers: yet (by his opinion) they do (in very deed) differ much, in that the one is (as he saith) the trial of the Common law, but not the other. The true difference betwixt them he there proveth also out of the Civil law; upon relation made unto him, by a Doctor in that faculty; and willeth it to be noted as a saying, which he well alloweth. By the Civil law (sayeth 3 Brooke. ibid. he) Accusers be as parties, and not as witnesses. For witnesses ought to be indifferent, and not to come till they be called. But accusers do offer themselves to accuse. For it is a good challenge of a witness to say; that he was one of his accusers. Quod nota. Now how unreasonable were it, to admit the testimony of a party in his own cause? So that by the Civil law (by which this prosecution is most properly handled,) Accusation (truly so called) is defined to be, Ius ulciscendi solenni & poenali judicio, poenas ac delicta: A right which the law yieldeth to any of prosecuting crimes and offences for revenge and punishment, by public and solemn judgement. For the explaining whereof, we have to note in this behalf that crimes or offences be of two sorts. Some be private, whereby a common person only, and no public person, nor the state of the Common wealth (otherwise then by consequence) is offended. And this kind cannot be prosecuted, but by the very party grieved, or by some of his kin and propinquity. And it may be urged, either to the end of civil revenge; that is, amends pecuniary, called actio vel accusatio criminalis civiliter: or to the end of a public punishment, called accusatio criminalis, criminaliter mota. The crimes that be public, are those that be heinous, as more deeply touching the state of the whole common wealth and public peace, than the former; and therefore may be prosecuted by any man, being called populares actiones, quia competunt cuilibet de populo: 1 l. de his. C. qui accusare non possunt. saving that certain persons, for especial causes, are by law from accusation to be repelled. Under the word of solemn judgement, be three things contained, and understood, that such an accuser must undergo. First 2 l. finali. C. de accus. he must present the name of the accused person in public judgement, as an offender in such a special crime: Then must he subscribe his own name, whereby he is said vinculum inscriptionis accipere: And he must also be committed unto the like custody and ward, that the Accused (in regard of the quality of the fault, and dignity of the accuser) is to sustain, until the suit be finished. By this band of Inscription or Subscription, the 3 l. qui crimen. C. qui accusare non possunt. accuser bindeth himself to prosecute the suit: and professeth withal, that if he prove not the Crime, which he layeth against the Accused; then he himself will and shall endure the same punishment; that such crime (when it is in deed committed) doth deserve. How unusual soever this be among us, or how severe this course of punishment may seem unto some: yet do we find the equity of it in Scripture, and that it is to be inflicted upon such, that calumniously impute false crimes unto others. If upon diligent inquisition (saith 4 Deut. 19 V 16. & sequent. the Lord) it be found by the judges, that the witness is false, and hath given false witness against his brother; then shall ye do unto him, as he had thought to do unto his brother, etc. Thine eye shall have no compassion, but life for life, eye for eye, tooth for tooth, hand for hand, foot for foot. How much more than upon a wilful Accuser, which calumniously seeketh for revenge sake, upon an untrue Accusation so known unto himself, to bring another man into so deep danger? An 1 Dan. cap. 13. example hereof we have, in the stoning of the two Elders, that calumniously accused or witnessed against Susanna. This poenatalionis, or retaliation, is also allowed by sundry ecclesiastical writers in like case: as by 2 Epist. 2. ad Episcopos Siciliae. Eutychianus, and 3 Sixtus 3. Epist. 2. ca 4. ad Episcopos Orientales. Sixtus, ancient Bishops of Rome. For witnesses be sometimes compelled to bear witness, who perhaps may slip 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 do it. For nemo invitus agere vel 4 l. 1. C. ut nemo invitus ag. accusare compellitur: No man is compelled to bring an Action or an Accusation, saving in especial cases, as 5 l. Manichaeos'. C. de haeret. in Heresy. Omnes enim haereticum prodere atque accusare debent: and in Treason also thus far, that he which doth not at least reveal 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 penalty due, if he be not able to prove his Accusation; is 6 l. Fin. ff. de priu. delict. l. fin. ff. de furtis. not required in Accusations of private Crimes, whether they be Civilly, or criminally moved and prosecuted. Here perhaps some will marvel, how this prosecution of Crimes by way of Accusation, could be so usual, as it was (in former times) in the common weals of Athens, Rome, and such like, insomuch as it became (there) to be the most ordinary mean of all others, to bring Crimes and offences into question: considering the great troubles and dangers, that by Law, did accompany the Accusers. Such therefore are to understand, that few or none Accusers would deal so unconsideratly, as to undertake it, until they thought themselves sufficiently furnished with witnesses and other proofs, able to convince them, whom they accused. Next, they are to remember, the use of it to have been greatest in populare Common weals, where the readiest step to attain unto most honourable offices and dignities (next unto service in wars) was to be able to speak and deliver their minds eloquently before the whole people; who were the sovereign judges (in most of those causes) either by way of Accusation, or else in D●…fence of others, being by Accusation called into dangerous question of their lives, limbs, honour, liberty, country, or of their goods and lands. Thirdly, that when it was in most frequent use, the people were heathen, and vninstructed in the true knowledge of God: so that they thought, to put up an injury done either to themselves, or to their friends, to be great pusillanimity, and a token of a base minded man; and to be (in deed) a vice very discommendable, even as the contrary vice thereunto is; viz. of doing Injury. For so 1 Arist. lib. 5. Ethic. Aristotle teacheth in his Moral philosophy. In which respect, all danger to themselves, was the less regarded by them. Lastly, they thought themselves bound in strict terms of duty, no less to persecute and to plague their enemies by all means, than they were to do good, and to show kindness unto their friends. Therefore the same 2 Arist. 2. li. Topic. Philosopher makes this to be a good argument and consequence; We must do good to our friends; therefore we must hurt and annoy our enemies. But Christ refuteth this heathenish opinion in the Gospel, Matth. 5. vers. 43. & 44. Now for proofs of that we have said in this behalf, we are furnished of them out of the gravest writers among the Greeks' and Latins. Plutarch saith thus: 3 Plut. in vita Luculli. Public judgements and Accusations have been of long time ordained, to th'intent young men might be bred up in the study of Eloquence; and that they might thereby be excited to the valour of a brave mind: that like as dogs of the best kind by natural instinct do at first sight fiercely assail wild beasts: even so noble youths should be kindled and inflamed with great courage thus by accusations to set upon lewd and evil members in a Common weal. To like purpose 4 Quintil. li. 1●…. ca 7. writeth Quintilian; Crediti sunt clari Iwenes, obsidem dare Reipub. malorum Civium accusationem: quia nec odisse improbos, nec simultatem provocare, nisi exfiduciâ bonae mentis videbantur. Tully assigneth three several motives, whereby without any discommendation in those times a man might be drawn to become an Accuser of others. A man may be well induced (saith he) 5 Cic. pro 〈◊〉. to be an Accuser, either Pietate, in a dutiful care: by necessity; or else by reason of his years. If he willingly enter into it, I do attribute it to his Piety: If he were commanded, then unto necessity: If in hope to attain glory and renown, I ascribe it to his youth. But upon any other occasion to do it, doth rather deserve resistance, than pardon. He also elsewhere teacheth, for what end we may enter into Accusation of others. Of accusing, we are not, (saith he) 1 Cic. li. 2. Offic. to make as it were an usual trade or profession; neither are we at any time to do it, but either in behalf of the Common weal, as the two Luculli did; or for our nearest friends and allies, being tyrannously, and piteously oppressed, whom we have received to our patronizing, as M. Cato, Cn. Domitius, and others did: or else but once only, as happily in our flourishing youth, for attaining honour thereby. But it seemeth, that the chiefest end among the rest was, for procuring with the people glory & reputation of eloquence unto themselves. For so Apuleius an ancient writer testifieth, where he 2 Apuleius in 2. defence. Mag. saith thus. He doth not accuse me for to procure unto himself glory, as M. Antonius did Cn. Carbo etc. For it was usual (saith he) with young men of greatest ripeness in learning, for their commendation to undertake to accuse others, thereby to give an experiment of themselves in judicial Courts, to the intent, that at some notable judgement or arraignment they might become known unto the multitude of Ci●…izens. Yet this Custom, which in old time was permitted unto young beginners, to set out thereby the forwardness and sharpness of their wits, is long agone (saith he) grown into disuse. But what might be the very true causes of the giving over of such Accusations, it will not be amiss here also to examine, as being very requisite for the perfit understanding of the nature of it, and of some other discourses following. CHAP. FOUR That the prosecution of crimes by way of Accusation is in most places forbidden or grown into disuse: the reasons hereof be partly the dangers to the Accusers, and partly the Hatefulness of that course. Therein is also declared whether all Accusation be unlawful; and certain points delivered to be observed by all them, that will accuse others. IT is very assured, that how usual soever it was in those populare Common weals; yet of very long time it hath not, nor is now practised in most civil Common weals or kingdoms, that I have read of. But in place thereof, is come either proceeding of mere Office, or else some way mixed, partly of that proceeding, and partly of prosecution by a Party, who is not properly to be termed an Accuser. First in this kingdom how rarely Appeals be brought and prosecuted against any supposed offenders, saving murderers, & those scarce two in an age, every one but of mean experience knoweth. I do call to mind one Appeal of robbery brought by Benet Smith against Giles Rufford in the beginning of Queen Mary's reign; 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 have, it resemble nearest the Accusation practised amongst the old Romans and others: yet in some points it doth also somewhat differ from it. In Flanders all Accusation is altogether inhibited. In the kingdom of Naples it is only permitted 1 Clarus. q. 10. unto those, which in that sort will prosecute some injury or enormity, done upon them or theirs. In the 2 Decianus. Venetian common weal, it is wholly forbidden unto private persons to Accuse: so that the care of prosecuting offences, is wholly left to the public magistrate. In France none but the kings general Atturneiss (whereof there be three) may take upon him 3 Gul. Bened. in c. Rainutius. V mortuo. nu. 200. de testam. to be an Accuser: and yet those not properly so to be called. And this reason is alleged by a learned writer in Law, of that nation: Lest too great opportunity of calumniation and of oppressing the meanest by the power of the mighty, should there by be given; and for retaining of public tranquility in the kingdom. It is testified by a grave & learned Civilian writer, 4 Clarus li. 5. §. fin. q. 11. that the solemn manner of Accusation mentioned in the Civil law of the Romans, is almost generally now grown in disuse. The chiefest causes of such disuse thereof (as I do conjecture) hath grown by these two ways. The first, because it is so full of danger and trouble: The second, because it is and hath been 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 upon the event which may ensue of it. At the entrance of the suit, upon the Accusers inscription ( 5 l. 16. C. de accus. & inscrip. which contained the heinousness of the crime, and the time of committing it) the Accuser was by and by to 6 l. 17. ibidem. endure Custodiae similitudinem, habitâ tamen dignitatis aestimatione; to be committed to the like safe custody that the defendant was; regard always being had to his dignity. 1 l. Qui crimen. C. Qui accus. non possunt. He was also then bound with good Caution of sureties to prosecute the suit. Much like to the first of these was that law which was established by Crem 2 Suidas in verbo Bulgar. the lawegiver unto the Bulgarians; who provided that none accuser should have audience given, until being bound and brought to the torture, it were by his own examination found out, upon what probable grounds his accusation rested. In the course of prosecution much trouble may grow unto Accusers, especially 3 Carrer. de Hae. res. cons. 117. in the crimes of Treason or Heresy. For in both these, not only the defendant, but the Accuser also is subject to examination by torture, ubi non subsunt indicia, where no plain or probable matter appeareth, whether of them saith truer. The Inscription also (aforesaid) bindeth the Accuser to endure some punishment, upon detection of any rash or undue practice in the Accusation. This rashness 4 l. 1. ad S. C. Turpillianum. or lewd practice consisteth in three several points, and every of them subject to their punishments. The first is, when the Accuser doth praevaricari, that is, collude with the defendant in dealing against him: Dicis causa, & pro forma tantùm, for fashion sake; perhaps to keep others from it, as by suppressing or concealing the best proofs, and by admitting of false and slender defences brought and alleged in the defendants excuse. The second is, when he doth Tergiversari, that is, give over and desist from his prosecution, upon corruption, etc. The last is, when he doth Calumniari, that is, wilfully 5 Gloss. in Clem. 1. de sentent. & re judicat. impute false crimes unto the defendant, which he cannot prove; or make any unjust petition, or by any other means deal deceitfully & maliciously. This may be resembled to that which we call at the Common law Conspiracy; saving that only damages in money be given thereupon. And this peril doth fall out chiefly, and is discovered upon the event of the suit, when it is brought to an end. For if the Accuser be pronounced guilty of such Calumniation; then must he endure the same punishment, which the accused party ought to have suffered, if he had been found guilty; called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, and by others poena talionis. This appeareth by the Civil law, and is allowed also by the Ecclesiastical. By the Civil, as namely by the Constitution of the Emperors Honorius and Theodosius, where it is said to an Accuser; 1 l. 17. C. de accus. & inscrip. Necimpunitam fore noverit licentiam mentiendi, cum calumniantes, ad vindictam poscat similitudo supplicij. Let him not think he hath free liberty given falsely to accuse others, & that without punishment; seeing the course of justice requireth that for due revenge Calumniators do suffer the like punishment, which they unjustly would have brought upon others. It is also allowed by the law Ecclesiastical. 2 Damalus ep. 3. ad Steph. Archiepisc. For, Calumniator si in accusatione defecerit, talionem recipiat. If an Accuser be found to calumniate, let him receive the punishment due to the crime imputed. 3 Had●…ianus 2. q 3. c. qui non. Qui non probaverit quod obiecit; poenam quam ipse intulerit, patiatur. He that proveth not his accusation, let him suffer the same punishment, into the danger of which he brought another man. And to the 4 Sixtus c. 4. in 1. volume. council. very same effect did Sixtus an ancient bishop of Rome writ to the bishops of the East parts. Yea, besides the like penalty, it was decreed in a Council, 5 Concil. Braccar. 2. Can. 8. An. Dom. 610. that the Accuser that failed in proof, should be excommunicate. If the Accuser can not (saith the Canon of the Council) prove by witnesses that which he objecteth; then let him endure that excommunication, which the party accused should have done, if he had been convicted. Neither can this be thought too grievous for him, that willingly and maliciously without just cause, will conspire against an other: let him impute his punishment to his own folly. Actor debet venire paratus. Besides the like punishment; such an Accuser by the old 6 Gelasius ibid. c. si quis. Canons, was also pronounced an infamous person. But from the grievousness of this poena talionis, or for Calumniation presumed, all public Officers (who 7 l. post legatum. §. Aduocatum. ff. de his quibus ut indignis. l. qui cum maior. §. penult. ff. de bonis libert. by virtue of their office are bound to Accuse) be clearly freed and exempted. Such are called Aduocati, & Promotores fiscales, & regij, The king's Attorneis or Solicitors general. The reason hereof was, because they did not of their own voluntary will, or for revenge, as ordinary Accusers undertake such prosecution; but for the benefit which redoundeth to the whole common wealth by the punishment of Offenders. Besides, they were not to reap any commodity or gratification thereby 8 Bart. & alij in l. Si quis in gravi. §. utrum. ff. ad S. C. Syllanianum. unto themselves by part of the penalty or fine; whereby they might be corrupted or drawn to do more than otherwise were expedient. And therefore in both these respects such are freed from all suspicion of wilful Calumniation, or revengeful bringing of men unto a dangerous question and trial. Thus much how perilous this Accusation is. How hateful it is unto others, and detested of most men, for one willingly (as with delight) to become a public Accuser; may appear first by the restraint thereof. 1 Arist. 6. l. Polit. cap. 5. Aristotle saith, That in a well ordered common weal, Accusations ought to be most rare. That very law (by authority whereof it was most used) provideth, That it shall not be lawful at any time 2 l. Hos accusa. §. l. julia. ff. de accus. l. cum rationib. C. qui accus. non possunt. for a man to accuse more than two. And an Accusers voice is called an abominable or deadly voice, especially his that will Accuse the master of that family where he is commorant. Let such an Accusers breath (saith that law) 3 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 naturally given to us all, to pity even strangers when they be brought into danger and distress by others; and in sort to abhor them that do wilfully procure it. They ought (saith Tully in this behalf) 4 Cic. pro Muraena. to weigh with themselves that an Accusation is no mean matter, but of great importance. It is much for a man to address himself unto that, whereby he may cast another out of his country, or take him out of this life; who both stands defended by himself and by his friends, yea and by such, as be mere strangers unto him. For we all willingly run to help to keep off dangers: and when a man is called into trial for his life, liberty or Country (if he be not a very enemy unto us) we do tender and yield unto him the good offices, wishes, and endeavours of most perfect friends; albeit in deed he be a mere stranger unto us. How hardly Tully himself (though sometimes he used it) thought hereof in the time of his age, this saying of his declareth. 5 Cic. li. 2. Offic. It is the part of an hard hearted and cruel man, yea rather of no man, to bring many into danger Capitis, of their lives, liberties or country. For besides that it is full of peril, even to the Accuser himself; it is also very infamous for a man to bring upon himself to be termed an Accuser. Neither can it possibly be done without great wickedness, that a man for filthy lucre's sake should turn eloquence (which was devised for the help and preservation of men) unto their plague and utter overthrow. This course was so hateful, that oftentimes such as pursued it, were upbraided with it as odious. For Mamercus Scaurus 1 Tacitus. l. 3. Annalium. when he accused Sejanus, having this cast in his teeth, sought to excuse himself by the examples of their forefathers, that had done the like. But Cornelius Tacitus (who reporteth this story) judgeth it to be an infamous endeavour, whereby noble families are greatly stained and dishonested. Seneca reporteth 2 Senec. li. 3. de benefic. that under Tiberius the Emperor, this rage of public accusing (for so he termeth it) was very rife: and saith, that it did waste that Common weal (even in that time of peace) more than any civil and intestine war, which they had amongst themselves, had done in times by past. And not only these Heathen men, but the Fathers of the Church, had it also in like detestation, that a man by Accusations should be so careful to bring other men into danger; which 3 August. li. 1. confess. cap. 18. S. Augustine therefore among others greatly reprehendeth. And he saith in another place thus: 4 August. in Sermone Domini in monte. All matters, wherein we suffer any indignity, 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 seek some comfort by taking revenge. But (alas) what doth it avail thee, if thou being smitten dost smite again, or that another do it, to revenge thy quarrel? Will that hurt which is in thy body, be thereby healed? Which seeing it cannot be truly said, it must needs be, that all these revengements proceed but from an haughty and a proud heart. In this regard, 5 c. Si quis episc. 2. q. 7. old Canons do call Accusation, Genus illaudabilis intentionis, a kind of discommendable endeavour or suit. The reason whereof is, for that it is done (for the most part) upon a revengeful and wrathful mind, whatsoever be pretended otherwise. If a man to excuse this, shall think that herein he pleaseth God, 6 Anaclet. ep. 1. de oppress. episcoporum. for that he accuseth offenders; saying, that he doth it for their reformation and amendment; this man (as is testified) laboureth but vainly, and is in deed carried with a sting of malice, rather than heat of charity. So that besides the danger to himself, we see how odious a kind of prosecution, Accusation hath been holden: and therefore we are not to marvel, that it is either recalled by contrary laws (as in most places) or grown in a manner to an universal disuse in the world. Hereupon, and perhaps also upon occasion of certain places of Scripture, some may gather that the course of Accusation is altogether unlawful to be used by any Christian. In deed, thus it is written in Leviticus: 1 Leu. cap. 19 V 16. Thou shalt not stand against the blood of thy neighbour; I am the Lord. And a little after: 2 Vers. 18. ibid. Thou shalt not avenge, nor be mindful of wrong against the children of thy people, but shalt love thy neighbour as thyself; I am the Lord. Likewise jesus the son of Syrach saith: 3 Ecclesiasticus cap. 10. V 6. Be not angry for any wrong with thy neighbour, and do nothing by injurious practices. In the Gospel we are thus commanded: 4 Matth. 5. V 38 & 39 Ye have heard, that it hath been said; an eye for an eye, and a tooth for a tooth. But I say unto you, resist not evil; but whosoever shall smite thee on thy right cheek, turn to him the other also. Again, 5 Vers. 44. ibid. Love your enemies; bless them that curse you; do good to them that hate you, and pray for them which hurt you, and persecute you. Which commandments are also repeated by 6 Luke cap. 6. V 27. etc. S. Luke. And to like purpose 7 1. Cor. 6. V 7. saith S. Paul: There is utterly a fault among you, because ye go to law one with another. Why rather suffer ye not wrong? why rather sustain ye not loss? Truly it may not be denied, but that the pregnancy of these places is such, that all prosecution of private injuries or crimes, done upon revenge, malice, envy, vainglory, gain, or any such like particular respect alone, is hereby condemned. For in Accusation it is first required, that a revengeful mind be wanting, which is presumed to be present, when the injury prosecuted is but private, and such as is not subject to restitution, according to the former distinction repeated out of S. Augustine. Secondly, it must be done upon a good zeal; to the intent the offender may be amended, and others not hurt, by the evil example. For by those 8 August. in servant Domini in monte. words of the Gospel, such punishment of sin, as tendeth to correction, is not forbidden; because that is a part of mercy, saith S. Augustine. And (saith he) 9 August. ibid. holy men have punished certain sins even with death, both to strike a profitable fear into the living, and that the death itself might not hurt them, who were punished by it, but the sin diminished, which was like rather to be increased in them, if they should have lived longer. Thirdly, Accusation by a Christian ought to be referred only to the public benefit of the Common weal. In this behalf Plato (being but an heathen Philosopher) hath a very severe saying. 10 Plato in Euthyph. It is an holy thing (saith he) to draw them into judgement, that have committed any murder or sacrilege, whether it be thy father, mother, or any other whosoever, that hath so offended: so it be done for this end, to rid the Common weal of them, as of a contagious plague unto it. Lastly, Accusation may not be used for gain and lucre's sake. For such Accusers especially are odious to all men. Another heathen writer could say thus hereof: 1 Quintil. siue Tacitus de claris Orator. The use of this gainful and bloody eloquence, is sprung up of late times by corrupt custom; and was devised (as one Aper was wont to say) but instead of a javelin or dart to thrust men thorough with: In locum teli repertus. So that if men could keep themselves strictly within these former bounds; then prosecution by Accusation would neither be so perilous to the Accuser, nor yet so hurtful unto others, but that it might still have a tolerable and profitable use in Christian Common weals. And then, that which Tully writeth, might have place, where he saith; that 2 Pro S. Roscio Amer. it is profitable to have many Accusers in a Common weal; yet so, as that men be not abused by such Accusations. And thus much for prosecution of crimes by a party. CHAP. V Of the several 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 general and special: Enquirie special ex officio nobili sive mero, mixto, & promoto: and the privileges of proceeding ex mero officio, above the other. NOw because the aforesaid Cautions be so hard to observe, and for that Accusation is so odious and of so perilous consequence (albeit these four points were kept) in case either the Magistrate or people (among whom we live) should not so construe our doings, as perhaps we do sincerely mean them; therefore where there be so many difficulties incident to Accusation, lest crimes and offences should remain wholly undiscovered, and so unpunished, to the great detriment of the whole body of the Common weal and Church: It was very necessarily provided in most places of the world, to have the judges office by Enquirie to supply this want and scarcity of Accusers and parties; which is the other general mean afore spoken of, whereby offences may be brought into question & examination. The Office or duty of the judge, is the cause efficient of this prosecution: and Enquirie is the peculiar effect and act, which in Criminal matters that cause produceth; or the course whereby the Office doth proceed; and is that kind of prosecution, which is counterdivided against Accusation, and prosecution by a party. The word Officium in the Civil law (from whence it is taken) hath divers acceptions. It signifieth either private duties and things of conveniency to be regarded and practised, in the common life and society of man with man; or else some more public function. And in this latter signification, we read of it to be taken two ways. By the first, for a ministerial function unto some Court, having jurisdiction. And by the second, for the power, authority, or jurisdiction itself of the Court. I do observe three several ministerial functions termed in the Civil laws by this name Officium. The first are those persons, that were publicly appointed to present crimes unto the Magistrates: as in these words: 1 L. ea quidem C. de accus. & inscrip. Quae per officium praesidibus nunciantur. The second denoteth unto us an Apparatour, as in these words: 2 L. 1. C. de Ap. parit. Procoss. lib. 12. Officio, quod tuis meritis obsecundat, non Curialem quenquam, nec excaeteris corporibus volumus aggregari etc. The third an Actuary that entered the acts of the Court; as in these laws: 3 L. 11. C. de Numerarijs, Actuarijs. li. 12. Officio tuae magnitudinis, datis precibus postulant etc. And again, 4 L. 1. C. de office Comitis sacri patrimonij. Officium Hellesponti adijt, & rogavit &c. In both which laws by the word Officium, an Actuary is understood. But Officium signifying the authority and jurisdiction of the judge, is that power, whereby he may deal of himself, without the petition or instance of a party. And this Office is exercised either in actions Civil, or in Criminal. In actions Civil 5 L. 56. ff. locati. l. 51. §. fin. ff. de act. empti. sometimes the judge doth of Office decree a thing which he findeth to be equal besides the action, and besides the bond (whereupon the action riseth:) and 6 L. Si longiùs. §. 1 ff de iudic. l. cum siliusfam. ff. de reb. creditis. l. 7. C. de iudic. & alibi passim. sometimes also (upon a point in equity) he relieveth by his Office such, as the strict law giveth none action unto. Calistratus reduceth all causes Civil, wherein a judge hath conusance extraordinary, unto these two general heads: Per cognitionem 1 L. 5. ff. de extraord. cognit. (viz. extraordinariam, sive officio judicis factam) aut de honoribus sive muneribus gerendis agitatur; aut de re pecuniaria disceptatur. A judge exerciseth his authority extraordinary in causes Civil, either when he taketh knowledge of bearing offices and functions; or of causes pecuniary. But in causes Criminal he practiseth this authority of Office; aut cum 2 Callistratus ibid. de existimatione alicuius cognoscitur; aut cùm de capitali crimine quaeritur: when he sitteth to take knowledge, whether a man's honour or reputation ought to be attainted; or when he inquires and makes inquisition of some crime capital; viz. whereby a man's liberty, country, or life may be endamaged. This Office Ovid touched 3 ovid. lib. 1. de Tristib. in these words: judicis Officium est, ut res, ita tempora rerum Quaerere.— The effect of the judges Office, and the course which he thereupon doth follow, is called Enquirie. Inquirere (saith Bartolus) est 4 Bartol. in l. transigere. nu. 13. C. de transaction. quasi intus quaerere, diligentiùs abdita indagare, secreta detegere, & in judicium deducere. It is to search into a matter deeply and carefully, that is kept close, to bring it to trial of judgement, which it deserveth. This Enquirie in the old common wealth of Rome, was more commonly called 5 l. 1. § item illud. ff. de S. C. Syllan. Quaestio. Which word hath two significations in that law. The one more general, signifying any enquiry: The other, that enquiry and examination, which was used upon bond slaves, and men of the meaner sort, by torture. Quaestionem sic accipimus, (sayeth the Civil law to this purpose) non tormenta tantùm, sed omnem inquisitionem & defensionem (or as another reading hath it) detectionem mortis. Where we see, that the word Inquisitio is also used. Of this word Quaestio, such as dealt by it, were called Quaesitores: and so doth 6 Virgil. 6. Aeneid. Virgil call Minos a judge, quaesitorem. Out of which (by abbreviation) came the word quaestor, and quaestura. It is here to be remembered, that in the common wealth of Rome, before the people had conveyed over, and granted away all their power and authority unto the Emperor; they had in themselves sovereign authority aswell of punishing heinous crimes, as all other matters of importance. Crimes which be more heinous, were called publica crimina, crimes against the state: and the other, privata delicta, private offences, being of less importance, and done but to private persons damage. The punishment for some of the public crimes, the people reserved to themselves only: but some other of them were first put over unto certain Officers purposely thereunto appointed, called Quaestores sive 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 inquired of, Ordinaria crimina, upon the same occasion. In the six hundred and fifth year from the first foundation of that City, it was ordained, that out of 1 Tully in Bruto & pro Cluentio. the six Praetours for the time being, four should continually after be chosen to be Quaesitores of so many crimes allotted unto their several hearing and determining: and thereupon those Inquiries were called not only Ordinariae, but also Quaestiones perpetuae; perpetual and Ordinary Inquiries of such crimes, as were so committed over by the people. Unto which number Sylla in his Dictatorshippe added three other kinds of crimes: and so there became (in all) seven perpetuae & ordinariae quaestiones; and so many Quaesitores of those seven crimes only. For the cognisance of all other public crimes, did remain still in the people, as afore. But when so ever it happened either afore or after the appointing of such perpetual and ordinary Inquiries, that the people (as it seemed good unto them for the time) did commit over unto several Magistrates, 2 Vide totum titulum ff. de extraord. crimin. & titulos plurimos sequentes. whether dictators, Cousuls, or Praetours, the cognisance of any particular public offence; because this was not ordinarily so done, but upon that special occasion, and for that one Enquirie, and they no set officers for that purpose: therefore it was said to be committed extra ordinem, and was thereupon called Quaestio vel cognitio extraordinaria. After this manner extra ordinem was a commission 3 Livi. lib. 19 of Enquirie granted to Fabius Maximus the dictator, against such of the men of Capua, as were chief authors of the conspiracy, and defection from the Romans. The like to this here in England we usually call a special Commission of Oier, and terminer, for some one matter. All other private and less crimes, the cognisance whereof was not reserved to the people, 1 l. 1. ff. de Offic. Praefect. urbi. were inquired of and punished Ordinarily by him that was Praefectus urbi: And therefore they were also called Ordinaria crimina, and the cognisance which he used therein, Cognitio sive Quaestio ordinaria. And this appellation and distinction of Ordinary and Extraordinary Crimes and Conisance of them, remained after the popular Common weal was surprised by Emperors; being by this occasion first begun. So that Extraordinary is not that (as some do ignorantly imagine) which is contrary to good order; but any thing swerving from the usual and more ordinary course, and may be both allowable and expedient; notwithstanding it be so called. And in this acception those words in these two rules are to be understood and taken: viz. Ubi subest remedium Ordinarium, ibi cessat Extraordinarium: And, Ubi cessat Ordinarium, ibi Extraordinarium remedium est advocandum. If it shall here be asked, why both the course of Accusation (which in old times was more usual) is now less frequented; and also why Enquirie, that was counted Extraordinary, 2 c. Super his. de accusat. is now become an Ordinary remedy, and 3 Bart. in l. infamem. ff. de public. iud. Bald. in l. 4. §. 1. ff. de condict. ob turpem causam. succeeds into the place of Accusation: for further satisfaction in this behalf let such consider that which followeth. First, let that be remembered, which hath been spoken in the next Chapter afore, touching the Peril and Hatefulness of Accusations. Next, 4 Tho. 2. 2. q. 3. 3. art. 6. that things tending to an end, aught to be directed in such sort, as that end may best be attained. And the end whereunto any Law is referred, ought especially to be considered in all both interpretation and practice of Laws. Whereas then in the times of those frequent Accusations, sundry unjust vexations, conspiracies, and calumniations, with other misdemeanours in that behalf, were very rife and usual: Therefore those in authority were forced (to avoid innocent men from such dangers) besides the former penalties, to make Laws from time to time, wholly to repel and keep back sundry sorts of persons from Accusing: whereby this kind of prosecution grew daily to more and more disuse. So that it was requisite for restraint of Offenders, to expect at the judges hands for his Office sake, this necessary duty of prosecuting Crimes; a course more void from suspicion of such calumniation: whereby that end which the Law shot at, viz. to have Offenders found out and punished, was far better, and with fewer inconveniences effected. It was further considered by men of wisdom, how the greatness of the mutual peril on both sides, did daily drive both the Accuser and the Accused, unto untolerable extremities. For when the Accuser had once undertaken the matter to his own apparent danger, if he could not prove it: was it not as likely (as it was easy) that he would rather secretly suborn untrue witnesses; then that by his enemy's safety, himself should be punished? A matter of fearful inconvenience, considering that 1 l. Absentem. ff. de poenis. it is better, an Offender in deed should escape, then that any man which is innocent, should be punished. On the contrary side, if the defendant finding himself in deed guilty, should propose his challenges or exceptions in law against the Accuser (which for his defence with justice might not be denied unto him) can it be doubted, but that he might easily also suborn witnesses, for proof of all his challenges; and so by avoiding the Plaintiff from Accusing, avoid also the peril he was in, how pregnant matter soever did otherwise lie against him? Whereby it might often happen, that some upright Accusers, who ever for pure zeal of justice did prosecute, should be endamaged both in their substance and good name; sundry Offenders should escape deserved punishment; and so the whole scope of severe Laws provided against Crimes, should be frustrated and quite overthrown. And therefore in great wisdom was this rigorous point of justice and hateful course, thought good to be mitigated; and therefore by insensible degrees of custom, turned to a more moderate and safe course, not only for the Prosecutor, but also for the defendant. For mitiùs agitur 2 Abbas in ca inquis. de accusat. cum inquisito convicto, quàm cum accusato. He that is convicted by way of Accusation (especially by the Canon law) is more grievously punished, than he which is convicted upon Enquirie. Which yet is always so tied, that being a prosecution of Office; the judge needs not lend his assistance, but where he seethe good and probable inducement to ground it upon. All Enquirie is either General or Special. 1 Bald. in l. ea quidem. C. de accusat. General Enquirie is a preparatoriecourse proceeding of mere Office, purposed to inquire and find out criminous persons, within some certain territory or compass. This is of three sorts. The first is general, in respect of the persons; but special in respect of the fault: as when the Coroner inquireth of a murder committed, and no certain person known: or an Ordinary of a forgery in some cause Ecclesiastical. And by this 2 l. 1. C. de falsa moneta. l. 1. C. de rapt. Virgin. Enquirie general, in certain heinous crimes, every private person may inquire, to bring the Offenders in by law to be justified. The second is general in respect of the faults, but special in regard of the persons: as when some Hospital, College, or Cathedral Church is visited. The third and last is general, both in respect of the persons and faults, as a general visitation of a whole Dioecesse; or an Enquirie made by the grand jury at an Assize or Sessions of the Peace for the whole County. 3 Summa Antonini. part. 3. t. 9 c. 7. Special Enquirie is, when some certain and singular person and crime also, is inquired of, and brought by due course of judgement unto trial, to the intent to be punished. This Enquirie is done either when there is a kind of prosecutor besides the judge, albeit the proceeding be of Office: or when there is absolutely no prosecutor besides the judge himself, against the party convented. There may besides the judge be prosecuters of the Office in two several degrees. One that doth prosecute throughout the whole suit: as when an Information for the Queen alone, or for the Queen and Informer, is put up at the Common law, and is termed by the law Ecclesiastical, Officium promotum. The other, which doth but prosecute or solicit in some part of the suit; as by furnishing the Court with proofs, etc. which is called Officium mixtum, in some temporal courts, a Relater. Likewise 4 Abbas in e. cum dilectis. de Purg. canonica. Officium promotum is of two sorts. The first is, when a man voluntarily offereth himself to prosecute, called promoter voluntarius officij; and he differeth a little from a Party. The second is, when the Court assigneth one to solicit the Office, who is termed Necessarius promoter officij, because he may not refuse this employment. But when no persecuter at all doth stir in the matter: then the Court only doth it in duty to the Common wealth, and to see sin and disorder punished. Then is this Enquirie termed Officium simply, or Officium merum by the Canon law, and by the Civil laws Officium Nobile, as of more worth and dignity, than the other course which is by a Party, and at his petition and instance. For by a more base appellation (in comparison of the former) that law termeth this, Officium Mercenarium, ac si merccde aliquâ propositâ alterius petitiont quasi deseruiret: thatis, when the Office of the judge is (as it were) hired and employed, but at another man's beck, to serve his turn. For albeit in temporal courts of other realms, long custom (which is 1 Cravetta. Consil. 238. nu. 7. the Wellspring of all their jurisdiction) hath 2 Alph. lib. 3. c. 11. established the very same course of proceeding in causes criminal, even at the instance of a Party, with that which may be done when the Office of the Court alone proceedeth: nevertheless the law itself hath given greater privileges unto proceeding of Mere Office, then unto the other: which was some occasion also, why it was the rather called Nobile Officium judicis. The first privilege is, that whereas by law now altered by Custom, an Accuser or Party (properly so called) is in danger of Poenatalionis, if he fail in his proofs, Propter praesumptam Calumniam: yet the presumption and entendment 3 Arg. c. in nostr. de procur. & in c. ad audientiam. de praescrip. of law runneth not so against a judge exercising but the public laws by his Office, as it doth against a Party. And therefore is he not subject to that penalty as a prosecuteris. 4 l. iniuriarum. §. 1. ff. de iniurijs. Non videtur facere iniuriam, qui iure publico utitur. The next privilege by law yielded unto, proceeding of Office in a Criminal cause, which is denied to a prosecutor, yea though he be not an Accuser or Party, properly so called; is, that the judge proceeding 5 Panor. in c. qualiter. el. 2. de accusat. of Office may give an oath to the defendant, to answer some criminal matter. But it is otherwise, when the suit is at the instance of a party which prosecuteth, because the defendant ought not to be driven to furnish up his adversaries intention. Thirdly, an Ordinary or delegate Aduniversitatem causarum, that proceedeth of Office, is not bound to make proofs of the 6 Pan. ibid. & alij DD. fame (saving before his superior judge, if an appellation be brought and do lie) because it sufficeth, that the fame is apparent and known unto himself. But it is otherwise in a delegate of one cause, or upon the instance of one, that voluntarily prosecuteth. Fourthly, when the suit is at the instance of a party, contrary proofs for proof of the defendants good fame, are admitted. But this need not be granted upon proceeding of Office; because 1 Arg. c. in nostr. de procur. etc. ad audientiam de praescrip. the law doth not intend and presume against the sincerity of the judge, as against the party prosecuting. Fiftly, upon the instance of a voluntary prosecutour or preferrer unto the Office, 2 Hostiens. in c. cum clamour. de testibus. fit litis contestatio (as I may English it) an issue is joined between the two parties. But if either one be but a solicitor and assistant to the Office; or else a preferrer assigned by the judge; or that the proceeding be of mere Office: there is then no contestation in the suit (properly so to be termed) but a kind of contradiction (in stead thereof) required, betwixt the fame or denunciation etc. on the one side; and the defendants answer by denial on the other side. Lastly, when the proceeding is of Office, 4 Arg. c. cum clamour. de testibus. (even after publication) more witnesses may be received, because the fear of subornation in this case ceaseth, being the only reason of that rule, viz. that after publication more witnesses may not be received: Insomuch as depositions of witnesses are always published unto the judge: But new witnesses may not be received, when it is at the prosecution of a voluntary party, for fear of suborning them in the points, where he finds the former depositions came too short of his purpose. So that in these respects the rather, this proceeding of mere Office might be termed, Nobile judicis Officium. Thus far touching Office and Enquirie by virtue thereof. CHAP. VI Of Denunciation, a special means of stirring up the Office: the manifold use thereof in the old Common weal and Empire of Rome; and at this present on the other side the Sea: the general acception of that word: four kinds 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 Ecclesiastical commission, and in ordinary Courts Ecclesiastical in this Realm. But because it is not possible for a judge of all other men by himself alone to have knowledge of most crimes committed, or probably intended to be committed: therefore have those laws devised sundry means to bring and prefer them unto his knowledge and Office. Among which Denunciation is principal, and indeed so general; that (by sundry writers) it is made a third and several kind of proceeding against crimes, and by them counterdivided against Accusation and Enquirie. In which respect, I think it not inconvenient for the present purpose, to have the nature of it also something opened. Nevertheless it is in deed no different course from Enquirie, 1 Spec. tit. de de●…unc, nu. 16. but a special means or instrument eliciendi potentiam in Actum: viz. of drawing the judges power and Office into action by Enquirie. Denunciation in a general signification may be described thus; viz. A relating of some man's crime unto a judge, to the end to have the Offender reform or punished; yet without that solemn inscription by the Denouncer, which the law requires in an Accusation. But I hold it requisite first to note, what use hereof and assistance unto the Office of inquiry, the old Romans had in their policy by Denunciators; as it is recorded to memory in the Civil laws of that people. Which I do the rather in this place, as in the former discourse I have done, to meet with the childish and sinister conceit of some; who suppose every thing devised and brought in by any Canon, how old or necessary soever it be; to be no better then Popish & Antichristian; and eo ipso (without further a do or judgement) to be condemned. For (I hope) they will not judge the laws and policy of the Romans to be Popish, Antichristian, or unreasonable; being (for civil prudence) the wisest and mightiest people that ever was, and altogether Heathens, when those laws were framed and practised. Of those, whom we now commonly call Denunciators, the law Civil hath two sorts. One sort are those, who (being private men) do willingly (for gains sake) denounce others. Of these 1 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 himself. So that these be both Nunciatores and Delatores. Of these Delatours (being a kind of Parties) I have spoken before. The other are such, as by reason of some Office or public charge, laid upon them, be to Denounce offenders unto the judge, to be by him proceeded with, unto punishment. These (in general) by the Emperor Constantinus have this title given unto them; 2 L. 1. C. de custodia reorum. Publicae solicitudinis cura, the care and regard of public watchfulness. His words to that purpose be these: In quacunque causa reo exhibito, sive accusator existat, sive eum publicae solicitudinis cura perduxerit; statim debet Quaestio fieri, ut noxius puniatur, innocens absoluatur. Where (we see) the two kinds of Criminal prosecution are touched, and the proceeding of Office, is there counterdivided against Accusation. And these having such charge, be also of two several sorts. The first whereof, besides their Denunciation and relating of crimes unto superior Magistrates, had authority also to enter into some Enquirie and Examination. Of these, certain were called Curatores Viarum, 3 L. pen. ff. de via publica. Dion Cassius li. 54. who also had a kind of jurisdiction for meaner faults committed in the high ways, and had two Lictores or Sergeants (for that purpose) attending them. They inquired of Office upon offenders and disturbers of the public peace in high ways. Others were called Latrunculatores, who sought up, and made general Enquirie for offenders, and persons to be suspected; being not altogether unlike unto our Provost marshals. I read 4 L. D. Adrianus. ff de custod. & exhib. reis. also of some called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, that is, principal conservators of common peace and tranquility. These also, praeficiebantur disciplinae publicae & corrigendis moribus. 1 L. vlt. ff. de mun. & honour. There were also men having charge and Office, not unlike to these conservators called Stationarij: whereof one sort called Milites Stationarij & limitibus Imperij praepositi, did 2 L. 1. §. fin. ff. de office prae●…. urbi. provide for the common peace, and also for the security of wayfaring men in the high ways, especially about the borders of their provinces; having authority to inquire and examine any persons, who they were, of what condition and state of life, from whence, and whither they traveled. And these made relation to the Magistrates of such suspected persons, as they found; and of the whole state of things abroad. Another sort 3 L. 1. C. de curiosis & Stationar. li. 12. called also Stationarij simply (without addition) were only to make Enquirie general, and to denounce and present crimes; and after to furnish the Office with proofs of the crimes detected by them. And these were of the second kind of such public denouncers, having none authority to make examination, but did only generally inquire of faults, and present them up. Such were called also by this appellative name, Officium: 4 L. 7. ea quidem. C. de Accusat. as in that law of Gordianus the Emperor, where it is said 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 judicio, dispici debet. These were called also Officiales; and 5 L. 1. C de private. carcer. the chief of them that had oversight of the rest, were named Primates Officiorum. And of them this law 6 L. Qui sepul. chra. C. de sepul. viol. is to be understood, viz. Sive quicunque alius Accusaverit, vel ad Officium nunciaverit. Other parts of Christendom (where the Civil laws have place) even to this day do retain some the like Offices and officers for the self same purpose, though under other names. In some countries men of those functions 7 Bartol. in l. Diws. ff. de custodia reorum. Angelus in l. Si Vacantia. C. de bonis vacantib. being in towns, are called Decani; and in cities, Capita Centenariorum; who have this ministerial charge laid upon them, to inquire of misdemeanours done within that quarter or ward, which is committed to their charge; and to denounce or present them unto the Magistrates. And by the writers in that law, these being dealers in temporal Courts, and matters, are resembled unto the like Officiales jurati, that are there in Courts Ecclesiastical. The city of London hath in every Ward certain yearly appointed to a purpose not far unlike, who are called the Wardmote inquest. And for Courts ecclesiastical the like be here in every parish yearly appointed, called Churchwardens, and Sidemen, or Quest-men. Under the generality of this word Denunciation, three several things be contained. First, when denunciation is made to the Magistrate, by any having a particular interest; it is called Querela, a Supplication or Complaint. Such is that in S. Luke, 1 Luk 18. V 3. Revenge me of mine adversary, saith the widow unto the wicked judge. Secondly, when it is made by such, as have no particular interest; it is called 2 L. delator. ff. de iure fisci. Delatio. But when it is done per Aduocatos fisci, (such as the Attorney general) or by other officers purposely thereunto appointed, then is it properly called Denunciatio, viz. An Information or Presentment. And thus much touching Denunciation in Temporal courts only. Denunciation generally taken, as we gather out of both the laws Civil and Canon, is of four several kinds. The first is called evangelical; the second judicial; the third Canonical; and the fourth Regular. evangelical is that, which proceedeth by those degrees that our Saviour Christ prescribeth 3 Matt. 18. V 15 in the Gospel. There be two ends hereof. 4 Spec. tit. d. The principal end is, to procure repentance & amendment in him, which offendeth. The secondary end 5 Panor. c. novit. de iudic. where this cannot be effected; is to restrain others from the like, by his punishment spiritual, only touching the soul; but not any temporal penalty, either directly or indirectly. But albeit the purpose of this denunciation be the party's reformation; nevertheless if the crime be such, as hindereth the execution of his ecclesiastical function; the judge of Office, is also to depose him, from his 6 Alph. li. 2. ca 9 conclus. vlt. pract. Can. Criminalis. Orders. Concerning Denunciation evangelical, question is moved by the Schoolmen (who in my poor opinion do handle it for many points, both learnedly and judiciously) whether in this denunciation those degrees of monition first privately to the party offending, and afterward before two or three witnesses, be necessary, and at all times to be observed in all crimes and offences indifferently, before the offender may be denounced of them, unto the Ecclesiastical Magistrate? For resolution whereof; we are to distinguish between hidden or secret, and public or open crimes or offences. If they be wholly hidden and secret; then indistinctly those degrees 1 Ricar. in 4. Sent. dist. 19 of monition there prescribed, are first to be observed, before it may be denounced to the judge; whether the offender by promising amendment and show of grief, do give any hope of his repentance and reformation; or do give none at all: saving where the crime is of such quality, as that 2 Thom. 2. 2. q. 33. art 2. & Ricar. ubi supra. it tendeth to some great and important damage bodily or ghostly of the whole body of Church or Common weal, or of many particular persons: as, if it be Heresy, Conspiracy, or such like. For insomuch as such one sinneth herein, not only against thee (as the text speaketh) but against others also, albeit they know not thereof: therefore thou oughtest forthwith evangelically to denounce and present such an offence unto the magistrate; to the intent the public danger may be speedily prevented: considering that 3 Gabr. Biel. the benefit of many is to be preferred before any particular persons fame: and the detriment (whether spiritual or corporal) of the whole Church or Common wealth, is rather to be regarded and avoided, than an evil fame against one offender, which (hereby) may perhaps be raised and bruited abroad. Concerning crimes or offences, we are to understand, that they may be said to be 4 Petrus de Palude. in. 4. Sent. 19 q. 4. public or open two manner of ways: either when they are committed openly; or when being secret, yet they be published abroad, and the offender is famed & bruited, to have committed them. Now if by either of these ways, an offence be made open and public; than it is to be denounced unto him that hath authority to correct it; yea though neither of the said monitions have been precedent. For 5 Thom. 2. 2. q. 33. art. 2. we are to provide, not only 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 scandalised & offended; according to that rule of S. Paul: 6 1. Tim. 5. Rebuke a sinner openly before all men, that the rest may have fear: 7 Ricar. ubi supra. And (as a schoolman saith) that they which have taken offence by the fault, may be edified by the punishment. But he goeth in this point further; That if it be but in the way to be published & made known abroad, though not as yet bruited; nevertheless it is to be denounced to the judge, that the scandal which might arise thereof, may be (aforehand) prevented. So that if the chief end of this Denunciation cannot: yet the secondary end may hereby be attained. Neither let any man in regard of this Denunciation fear to be accounted malicious (saith 1 August. ad Macedonium. S. Augustine:) for you are rather blame worthy, if by holding your peace, ye shall suffer your brother to perish; whom you might have saved by denouncing of his fault unto them in authority. And again, 2 August. ibid. Sive plectendo, sive ignoscendo, hoc benè agitur, ut vita hominum corrigatur. It is very good to bring men to reform their lives, whether it be done by punishing them, or by for bearing them. All Denunciations evangelical 3 10. And. & alij DD. in c. Novit. de judicijs. (so they be duly brought afore him) the ecclesiastical judge is to admit, because they be referred only to the party's reformation, or restraint of him and of others by spiritual correction. But his proceeding in them, is (for the most part) summarily and not judiciallie: and as a spiritual Father, rather than a judge. The next kind, termed Denunciation judicial, in respect of the Denouncers and matters denounced, is either public or private. 4 l. Dious. ff. de Cust. & exh. reis. l. ea quidem. C. de accusationib. l. 1. §. sanè ff. de off. Praef. urbi. c. episcopus in Synodo. 35. q. 6. Public, is that relation or solemn presentment of some crime, which is made unto a competent judge, whether Civil or Ecclesiastical, by public Officers thereunto appointed: whereupon the judge of his pure and mere Office proceedeth by due judicial course of special enquiry, to the acquittal & clearing of the party denounced, if he be found innocent; or to the punishing of him by some penalty bodily and temporal, which is the peculiar end of this judicial denunciation, unto which also no Monition is required to proceed. But judicial and private denunciation is that, which may be preferred by a private person in respect of a particular interest that he hath, as being either hurt, or particularly grieved by some fault or offence committed by another. The end here of is, not only the punishment of the offender; but that the denouncer grieved, may be restored or preserved harmless. For explanation of the latter of these by examples: first in a Civil or temporal court; 1 vel alieni. l. 1. §. Quid autem. ff. de off. praef. urb. as when he that is oppressed, is a bondman, §. pen. Inst. de his qui sunt sui or is subject to another man's power (as an apprentice is:) so that he hath none ordinary action against his superior that doth wrong him, but by this judicial denunciation; is forced to fly unto the judges office for remedy. In a court ecclesiastical: 2 Innoc. in c. Insinuante. Qui cler. vel vov. as when a religious person, who hath no direct action against his Prelate, denounceth some grievances done unto him, by his Abbot or other superior: or when as the poor of an Hospital do denounce and relate unto their visitor some offences or grievances done to them by the master thereof, requiring punishment and remedy therein by his office, in due course of law. And these two judicial kinds of Denunciation are most frequent in this Realm, both in Ordinary courts, and also in courts of Commission, for causes and misdemeanours ecclesiastical. But the first of them more usual in Ordinary courts: & the second in courts of Commission. The third kind of Denunciation is Canonical, (so called, because it had his original from that law;) and it hath also under it two kinds. The one more special, to be preferred and made by him only, who hath interest of having either his Prelate or Pastor good, or else some ecclesiastical person good, who is under his jurisdiction. And 3 c. 1. de offi. Custod. c. licet Heli. de simon. the end of this Denunciation is, to have such (being criminous) to be removed from their administration ecclesiastical. The other Canonical denunciation is more general, in that it may be preferred by any whomsoever; and concerneth either the hindrance 4 c. praeterea. de Sponsalib. c. cum inhibitio. de cland. despons. or dissolving of some marriage contracted or to be contracted, within the degrees forbidden: or else the desisting from some sin, which is of that quality, that it increaseth by multiplication of Acts in the same kind, or by continuance of some one Act, and wherein the Denouncer hath none other particular interest, then as every Christian hath beside. The last kind called Regular, is that Denunciation 5 Specul. tit. de Denunt. §. 2. vers. ut. autem. which is published by any person in Chapter, touching some offence of his brother, committed contrary to the local and positive rules or statutes of that place; to the intent he may amend it hereupon, rather than that it should come to a more public denunciation; and from this, there lieth none Appellation. The two first kinds of Denunciation, viz. evangelical and judicial, do differ the one from the other, in sundry points, but especially in these following. First, 1 Pan. in c. noult. de judiciis. addie. Vlt. every one (though he be infamous for some crime formerly committed, so he persevere not in that crime still) is admitted to denounce another evangelically: because it is indefinitely commanded by Christ, as a necessary office of Christian duty, for reclaiming of our brother from offending. But none are to be admitted to the public judicial denunciation; besides those which be specially thereunto appointed: saving that the Canons 2 c. Causam. Qui filii sint legitimi. c. Quapropter. 2. q. 7. c. Quisquis. 1. q. 1. c. primo. 5. q. 5. do compel all Clerks to denounce the crimes of other persons ecclesiastical: and to the private judicial, none but such as have some peculiar interest. And in this case it forceth not, though such do even then persevere in a crime; because under pretence of crime, no man is to be repelled from prosecution of his right. Secondly, evangelical denunciation is referred to the amendment of the offender; whereas upon the public judicial, his punishment is propounded for an end thereof: and the private is referred both to such punishment, and that the thing be restored, and the denouncer also preserved harmless. Thirdly, upon evangelical denunciation there is no proceeding in foro contentioso, or judicially, but only in Poemtentiali: whereas upon judicial denunciation, there ensueth a due course of judicial proceeding; and thereof it hath his name. fourthly and lastly, in private judicial denunciation or witnesses (other than such as be lawful and without just exception) are admitted; because it lieth for restitution of some thing: But in evangelical, for proof of the first private monition the denouncer alone must (of necessity) be admitted for the witness, if the denounced do deny the fault: and for proof of the second monition, any one other (together with the 3 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Mat. 18. V 16. denouncer) may be admitted for two witnesses, though both of them happen to be infamous for some crime in times passed by them committed; so that at such time of denouncing, they persevere not in the crime. But albeit the law be thus, for admitting of some and rejecting of others from denouncing: yet throughout all Italy, and in other places of Christendom beside; 4 Alphons. Villa. li. 2. de denunc. Cano. concl. 8. Custom in both courts hath thus far prevailed, as to suffer any man almost to denounce, whether he do it of his own voluntary mind, or by occasion of a Charge and duty in that behalf laid upon him. The reason hereofis; for that the Common wealth hath interest to have offences punished: which could not so readily be done, if by this way of denouncing they were not at all brought unto the Magistrate's notice. A matter otherwise likely to happen by reason of so many difficulties that accompany Accusation, and so many exceptions, which may (by law) be taken both against Accusers and Denouncers. Those who have 1 Salycetus in l. ea quidem. C. de accus. Clarus. li. 5. §. fin. q. 7. a public charge of Denouncing and Presenting, whether they serve in Temporal or in Ecclesiastical courts, ought (upon pains otherwise to be inflicted upon them) to present such offences as come to their knowledge; yea though otherwise they be not opened or published commonly abroad. Likewise in courts Temporal 2 Clarus ubi supra. verse. Sed quaero. this kind of public denunciatours ought to present some matters, which the laws (perhaps) do not punish at all: as namely, if any kill an Outlaw or Bannito, in places where such law is still in force. Also such Officers must present all casual violent deaths: because albeit perhaps nothing do presently appear, but that such death did casually happen: yet in process of time, it may fall out to be discovered, that it was by some malefactor. Lastly, when such as have charge to inquire generally, and to present, either do not know certainly whether an offence be committed or not, (a thing which may happen in such crimes whereof no traces or footsteps after the fact done can remain; as in Adultery, diffamation, and such like:) or where a fact doth appear, but the Author thereof is not known (as may be in murder, sacrilege, forgery, etc.) in both these cases, if the common voice and fame do run against any person in particular, they are bound to present even such fame of the offender, as well as the crimes themselves; together with all the circumstances they can learn thereof, & who be more perfectly instructed touching it, that perhaps can give particular and more full evidence. He that is a denouncer by virtue of his Office, is always in his presentments to observe, that he be not found to have preferred matter against any, by manifest calumniation or wilful conspiracy. For 3 Alph ubi supra. if this appear evidently to the judge, even such a public denounceour is not only to pay charges unto him, whom he hath maliciously vexed; but is otherwise also upon the judges Office to be punished, for a calumniator. But for Calumniation 1 l. 2. C. qui aceusare non possunt. only presumed (which is then intended and presumed, when the defendant is cleared, only because nothing can be proved against him:) than he that is a Denounceour by reason of his charge laid upon him, shall not be prejudiced. Nevertheless he that is a voluntary Denounceour or preferrer, 2 Gloss. final. in c. dilecti. de dolo & contumacia. vide Angel. de malef. & Marian. c. Qualiter. cl. 2. de accusat. if he do but fail in his proofs, shall be thereupon condemned in expenses, and be otherwise also punished; albeit not so deeply as an Accuser, yet extraordinarily by the judges Office; because at his instigation and soliciting, the Office doth almost no less, than an Accuser doth. The reason hereof is, because in that he proveth not his Complaint; the Law presumeth even hereupon, that he did but move it by Calumniation, for unjust vexation. Which thing doth often keep even many good men back from all Denunciation of crimes, whereunto they are not specially bound; as S. Augustine 3 August. Hom. 50. de poenitentia. testifieth in these words: Good men (for the most part) do bear with other men's faults, and hold their peace; because they want sufficient evidence in law, to approve that to the judges, which themselves know. Yet there be certain cases, whereby even a private Denounceour and Informer shallbe excused from any Calumniation presumed only: viz. when he makes not proof of that which he objecteth. The first is, when he did prefer it by a kind of Necessity: 4 l. cum fratrem. C. de his quib. ut indignis. as when the heir prosecuteth the death of him, to whom he is heir. Secondly, when it proceeded 5 l. Quamuis, C. de adult. upon an extreme grief; as when the husband accuseth his wife of adultery, and yet perhaps faileth in proof. Thirdly, when the Crime 6 l. 1. C. de falsâ Monetâ. is very enormous; as for Coining, Treason, etc. Fourthly, 7 l. Miles. §. mulier. ff. de adulter. when a great evil fame did run thereupon. Fiftly, 8 c. de Sent. excom. when the Denounceour proveth, that he heard the infamy spoken of, by men worthy to be credited. Sixtly, 9 Gl. in c. Paulum. 2. q. 3. when his witnesses pretending to him they could prove the Crime, do deceive him. Lastly, 10 10. And. in c. cum dilect. de Elect. when he maketh half a good proof, as by one witness without exception; which the Civilians term Semiplenam probationem. For in all these Cases, the praesumed and intended Calumniation (grounded upon this point only, for that the Denounceour failed in proof) doth justly cease. But otherwise, the aforesaid general rule of condemnation in expenses, etc. is to be observed. Thus much then of Denunciation, the most usual and general inducement of a judges descending to Enquirie special against a particular person, for some supposed Crime. Now it followeth to show (so near as I can) what course of dealing against Crimes and offences is holden both in the Court of Ecclesiastical commission (which of the two is more eagerly impugned) and also in ordinary Courts Ecclesiastical, at least so far as by Law is warrantable, if an appellation be brought. The matters handled in the Commission Ecclesiastical, are such Crimes Ecclesiastical as are spoken of in the first treatise: being aggravated (above the ordinary course of them) by some circumstance of moment. Also these beside, attaching, and conventing of jesuits, Seminary Priests and recusants of both sorts, execution and punishment of the breach of certain Statutes, as touching her majesties lawful superiority Ecclesiastical, yielded unto her Highness by 1 7. & 5. Eliz. 1. Eliz. cap. 2. 13. El. cap. 12. Parliament: the Statute for uniformity of Common prayer, and the Statute to reform certain disorders in the Ministers of the Church: punishing of Libelers, slanderous reports, and disordered preaching against Persons and matters Ecclesiastical by law established: misdemeanours about Marriages: conventicles, tending to schism: Abuse and contempt to Ministers: excessive usuries, simonies, incests, adulteries and other foul incontinencies, subornations of perjuries in matters Ecclesiastical, and such like: when (either by reason of the power of the delinquents, or through some material circumstance) they be not so readily and easily reformable, by ordinary jurisdiction. These matters are brought thither, when Ordinaries be noted of negligence in giving redress: or when they desire aid, either for the greatness of the party, whom poor men dare not present or denounce, or for the delinquents often removing from one Dioecesse to another, or for the dwelling of the witnesses else where, or for the offenders frequent, frivolous, and chargeable appeals, or for such like considerable occasion: or upon credible information made by some great parsonage, or of some that be in that Commission, or being referred from her Majesty, or from the Lords of the Counsel: or upon complaint of some party justly grieved, otherwise being without remedy: or by complaint of a whole Parish, or of a great part thereof: or upon frequent relation of sundry credible persons taking offence and grief thereat (and setting down particular evidence of the fact) or in aid and assistance of ordinary jurisdiction: as when the delinquent hath no certain place of abode: or lastly by some notoriety of the fact, as by the parties known handwriting: or for a matter done in great assembly of people, and such like. Hereupon Articles be framed, wherein are contained the place, time, and oftentimes the persons able to testify & inform further, and all such other circumstances and Indicia, (which I interpret as the word is commonly used Evidences,) tending to the plainer manifestation of the Crime. The Articles are perused and allowed to be incident to the cognisance of that Court, and containing sufficient detection to open a way to proceed (by way of further enquiry ex officio, into that crime) by one of those three Commissioners at the least, (whereof one is of the Quorum) that do subscribe the Process, for conventing of the party. This Process is either by way of Citation (commonly there called letters missive) or by way of attachment, when the party is fugitive, or flitting, or the Crimes be grievous and publicly offensive, so that it may probably be feared, he will lurk or step out of the way for a time. But in both courses, some one is bound to the Queen's Majesty to prosecute, & to furnish the Court with witnesses for proof of the matter, not to compound it privately, and to pay charges unto the party, if it shall appear he hath been (without just cause) troubled. Yet where the Commissioners themselves are sufficiently informed Indicijs, viz. with evident matter against the party, and where no such prosecutor or relator doth offer to follow it, (so that the Court itself takes chief care of the prosecution) in some like few cases, such bond is omitted. Now when as the party appeareth (for such just considerations as hereafter are debated and proved lawful) he is required on her majesties behalf, to take oath to answer the Articles or Interrogatories truly, (being matters of his own fact and knowledge, so far forth as by law he is bound) before every particular thereof be made known unto him; lest after perusal (afore his oath taken) he be drawn by counsel to answer cautelously, indirectly, or wholly to refuse to make answer: perhaps, because he sees they touch him over nearly, as conjecturing by whom they may be proved. But after the oath is taken (in setting down his answer) he may consider as advisedly, and deliberate for so long time, as in any reason may be desired. And thus far forth the party convented, is (for the most part without any party at all) proceeded with, but ex officio judicum nobili vel mero: to the intent, he may not be privileged to say, that he is not bound to answer; being at the suit of the Office, and duty of the judge (for the public interest of the Church and Commonweal) as perhaps by Law he might, if it were at first preferred and prosecuted by a party. But after he hath perfitly answered them (for the most part) a party is then made; who (if sufficient matter be not confessed thereupon to proceed unto a judgement, upon the Articles and answer) doth take upon him to prove it by witnesses; and than Interrogatories, exceptions against witnesses, and other defences, (for the convented party) are used almost wholly, as in Ordinary Courts. By which making of a party, that which was merum officium afore, doth afterward become officium mixtum, viz. ex mero & promoto. When the matter comes to final judgement, if the party be convicted, he 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 convenient, weighing always the quality of the person, and the offence, together with other circumstances thereof. In ordinary jurisdiction, Crimes be usually proceeded against either ex officio promoto, that is, at the instance and petition of some, that will voluntarily stir up and solicit the judge unto his duty: or else ex officio judicis mero. In the first of these, albeit the party convented is bound to answer matters by oath (if it be required) so they be not of the Crime objected: yet the rule is, that he is not bound to answer (upon oath) touching the very Crime itself, notwithstanding a fame do run hereupon, until he shallbe enjoined his purgation. But when an Ordinary proceedeth against a crime, without a party promovent, viz. ex officio mero: then his proceeding must be grounded either upon a presentment of a fame, or of the crime (made by such as be specially deputed thereunto, as Churchwardens, etc.) or proved by other witnesses, or else upon notoriety of the fact, speeches and information (of credible persons touching such fame or scandal thereupon risen) brought often unto his ears (which is called clamosa insinuatio) or by some other course allowed by law to be sufficient, to open a way unto such proceeding. If it be upon a perfit presentment of the crime or fame thereof, the judge may safely without doubt of nullity or grievance in that behalf proceed ex officio: and so may urge the party presented to answer upon his oath, touching the very crime itself. But if there be no such presentment, but clamosa insinuatio delata ad aures suas, or some equivalent matter, whereby the party becomes offensive and scandalous (though no man will prosecute or present him) yet the judge may and aught ex officio of very duty, to proceed unto the examination of neighbours there about, touching such fame or crime: which fame if it shall be by such enquiry found and proved, than he may proceed as afore. But if upon such denunciation and notification had from credible persons, and the crime being not declared to be notorious, nor none infamy or scandal proved or presented, nor any other sufficient mean to open way to such Enquirie, he shall nevertheless proceed, and urge the party to answer of the very crime upon his oath: this (of itself) shall make none error or nullity in the proceeding, albeit not warranted by law. For if the party convented shall make none opposition (as by saying that he is not presented, nor yet defamed of it etc. but be contented to answer) than the process shall stand sound by reason of his submission unto the proceed. But if the party (taking cause of grievance) shall appeal from such proceeding, than the Ordinary must be able before the judge of the appeal (out of the Acts) to justify either the fame, by some presentment thereof made, or by witnesses, or the notoriety of the fact, or else scandal found by way of enquiry, or by some denunciation, sufficient Indicia and evidences (found afore) as the law doth allow, to open a way unto him, to proceed by enquiry ex officio. For (otherwise) the judge Aquo (being made party in the second instance) shall be adjudged by his superior judge to have done him a grievance, to have his proceed therein reversed, and to pay charges to the party appellant. These be the courses of proceeding (in this behalf) of both the said ecclesiastical Courts within this Realm: which in the Treatise following (for those aforesaid principal points challenged) remain now to be particularly justified: and shall hereafter (if need require) be showed to hold for law and equity a more strict and exact course in many points, than not only Courts Ecclesiastical, but even Civil, (or as we here speak) Temporal Courts (on the other side the Sea,) usually do observe: or then (by the Canon, or Civil laws in some respects) were needful, if it were so thought expedient. CHAP. VII. The Civil and Canon laws allow sundry means to ground a special Enquirie of Office against a crime, besides Accusation and Presentment: an answer to a supposed Rule: how from General, they descend to special Enquirie: That besides these two, either a fame, or clamosa insinuatio; or private judicial Denunciation; or Canonical Denunciation; or Indicia; or taking with the manner, or other notoriety of the fact; or Appeachment by some of the Complices; or collusion of the Accuser; or the not objecting in due time, that every of these do want: or when the Enquirie tendeth but to a spiritual punishment; may severally any of them serve, to warrant such Enquirie: with some observations touching the nature of most of these. THe public judicial denunciation which is made and preferred up by special Officers assigned for that purpose, in usual speech we term presentment: and is that presentment, which must needs be meant by the authors of the first opinion that is to be handled in this second part, which is this, viz. that an ecclesiastical Court may not proceed 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 under the word presentment, any denunciation whatsoever were understood by the authors of that opinion: beside that it is never so generally taken, the practice of ecclesiastical jurisdiction also, would not then (hereby) be restrained (which that opinion especially shooteth at) but rather much more enlarged, than they would be willing unto. And yet though it were so generally to be understood; nevertheless this opinion could not be truly defended, as shall here be made manifest God willing. It is showed before, that Accusation and Presentment be courses of proceeding most properly and peculiarly incident to Courts, guided either by the Civil, or by ecclesiastical laws. So that we find the authors of this opinion herein to deal somewhat more liberally, then certain do in other points: in that these do hereby allow unto an ecclesiastical Court, some course of proceeding, according to the law ecclesiastical. I mind first to impugn this opinion, by showing out of those two laws, that a judge may have Conisance against crimes, not only upon the prosecution of some party, which is none Accuser; but also of Office by way of special enquiry; though no such solemn presentment be preferred up, by Officers purposely thereunto appointed: and therefore, that sundry proceed are warranted against crimes, without Accusation, or presentment. It hath been showed afore, that 1 l. libellorum. ff de accus. l. 5. C. de his qui accusare non possunt. unto every Accusation an Inscription of the Accuser to endure poenam talionis, in case he prove not his intention, is necessarily required. But the proceeding to the cognisance of a crime by way of Exception repulsive only, or both Repulsive & Recriminative against the Accuser; is done by a party, that is not to use such Inscription: And therefore some proceeding may be against crimes by a party, that is none Accuser. The like is truly to be said of both the sorts of judicial Querelae or complaints, mentioned also in the sixth Chapter of this second part. Furthermore, at the Civil law, both Delatours of concealments or intrusions, and Delatours also upon pecuniary penal laws, do omit such Inscription: and therefore are none Accusers. For if we will affirm the proceeding upon their prosecution, to be at the instance of a party; then doth it follow hereupon, that some may be a party in preferring offences & faults, 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 law Civil admitteth some prosecution of offences, without either Accusation or Presentment. The same may be affirmed of Prosecutours or parties at the law ecclesiastical, 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 willbe objected by some, whereby is said, that No man is to be condemned without an accuser. Which doth encounter both that which is to be spoken by me against this opinion; and also for, and in behalf, of all this proceeding of Office: and also doth overthrow the opinion itself, that we have now in handling. For presentment, which is one of the courses allowed by this opinion, hath none use in an Accusation, but only openeth a way to the judges Office for special enquiry 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 wholly cease. For clearing of which doubt, I answer: that if this were a Rule (as is pretended) yet (like as all other Rules) it hath many limitations, or excepted Cases. But 1 Duaren. disput. anniver. li. 1. c. 38. a great learned Civilian of late times teacheth us, that no such Rule can be gathered out of any law, and therefore was (through mistaking) framed but by the common sort of Interpreters only. The words of law, whence it is pretended to be gathered, be these: 2 l. Rescrip. § si quis. ff. de munerib. & honour. If a man have none Accuser, let him not be debarred from Offices of credit and honour. Now it is not hereby forbidden to condemn an offender upon any course of proceeding besides Accusation; but only that a man shall not for a supposed offence, in the mean time be kept from bearing offices, until he shallbe judicially called into question for it. This will more plainly appear so to be, if we shall call to our remembrance, how many sundry sorts of Denounciatours (afore spoken of) were received and used by the Civil law in the old Roman Common weal and Empire, who were not tied to any Inscription. And besides these denunciatours, 1 L. 1. §. Quoties. ff. de office prat. vibi. l 4. ff. ad L. juli. 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 themselves also, are by that law required (even without any denunciatours) to search out robbers and other disturbers of the Common peace, and to punish them severely. And in truth it must needs turn to the great prejudice of the Common weal, if no Magistrates at all should deal against any offenders, until some Accusers, yea or denouncers might be found. Furthermore, the Emperor trajan writing to Plinius, would not have the Christians 2 Lib. 10. epist. Plinij. (whom as it seemeth, he somewhat favoured) purposely sought up & inquired for by the Magistrate's appointment; but to be punished only, when they were voluntarily preferred up unto them by others. Which doth argue plainly, that the custom was then, to have other sorts of offenders sought for, and found out by the judges and Magistrates; yea though none other man preferred matter against them. Yea, the words of the law in this behalf are clear. 3 L. 4. §. 1. ff. ad L. jul. Peculatus. Mandatis cavetur de sacrilegijs; ut praesides sacrilegos, latrones, plagiarios conquirant; & (prout quisque deliquerit) in eum animaduertant. Et sic constitutionibus cavetur, ut sacrilegi extra ordinem, dignâ poenâ puniantur. Nevertheless, to the intent that judges may put away from themselves all suspicion of calumniation and conspiracy against men; the said learned man adviseth them, not to descend to Enquirie of office against any especial person, but upon some public fame, or other good occasion of inducement to lead them thereunto. But as for general Enquirie, the judge in duty is bound so often to make it, as the prescript of laws doth bear; that thereby supposed offenders being found out and discovered, may be brought into question, and unto special trial. Now therefore I will show, that there is allowed prosecution of special crimes of Office; yet without any such Presentment precedent, as by this opinion is implied. It is true by the Rule of law, that general inquiry is precedent as a preparatory course to make way unto the judges Office of proceeding by special Enquirie against such, as thereby shall be detected, denounced, & presented. In which respect it is said, that 4 c. qualiter el. 2. deaccusat. as Inscription goeth before Accusation; so doth Presentment before Enquirie. Now, upon detection made unto them, either upon general enquiry, or otherwise (as it is testified by learned 1 Salycetus in l. fin. C. de Quaest jul. Clarus. lib. 5. §. fin. q 11. writers in the Civil law) such judges as be discreet and sage, do customably (in most provinces) secretly receive the witnesses depositions in writing (for the information of the Court) before the supposed offender be cited either really by attachment, or verbally by process served on him. This they do thus aforehand, in two respects: both that the defendant be not forewarned to fly or to hide himself; and that the witnesses (by subornation or other sinister practice of the defendant) be not drawn away afterward to deny the truth, and to depose the contrary. If the defendant shall afterward make his appearance, and deny the matter objected against him; then be the witnesses reexamined and sworn again in his presence. But if he shall still wilfully absent himself; in that case the first examination of the witnesses may serve for the judge to proceed by, even unto definitive sentence against him. This first receiving of information from witnesses, is called in that law Processus informatiws; and the rest of the whole proceeding of the judge after the defendants appearance, or his wilful absence, is processus punitiws. And unto the taking of the process informative (though some have disputed otherwise) it is commonly holden, 2 Ferretus. Consil. 31. num. 11. not to be necessary; that the supposed delinquent should be called. Which course of taking informations doth very much resemble the examination and inquiry against suspected malefactors, which commonly is used by justices of the peace and other Magistrates here in England. But albeit detection rising upon general enquiry, do (in this sort) often and very usually make way to special: yet nevertheless both those laws do mention many and sundry other received means beside, whereupon to ground a judges special enquiry: So that albeit Presentment be one; yet is it not the only means, to open a way unto proceeding of Office by enquiry. The first of such means is a Fame of an offence to be by some certain person committed. For albeit no Fame be presented by officers specially appointed: yet if there be such a fame in deed to be proved, when need shall require; 3 Panor. in c. Inquisitionis. de accusat. then an Ordinary judge may hereupon proceed to special enquiry against the offender so by fame discoured. This word Fame is derived from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, and both of them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, quasi à fando, of speaking; as a thing often spoken and by many. And therefore is it by Tully 1 Cic. in Topicis. defined to be testimonium multituainis; the testimony of a multitude. The proper effect of fame, is thus declared by old Grammarians writing of the differences of such words, as be of near signification: 2 Cornel. Fronto in differentijs. Opinio ostendit; Rumor tumultuatur; Fama indicat. The opinion or weening of men gives an inkling; Rumour tosseth a matter to and fro; but fame gives an evidence. And albeit Plutarch 3 Plutar. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. do report, that this was a common proverb, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. In war and in hearsay be many vain and untrue matters: yet the old heathen Poets in an admiration of fame, do attribute a kind of divine quality, and eternity unto it: 4 Hesiodus. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Fame being a thing which many people bruit abroad, doth never altogether fall to nothing: for it is of a certain divine nature. And therefore by law 5 Arg. l. sin. ff. de haered. instituendis. he that is moved with fame, or by the assertions of men worthy to be credited, is said not to be moved unjustly, or without cause. Fame's be of two several degrees. The one rising 6 c. Sanctum. dist. 4. de consecrat upon suspicion only, and from an uncertain author: and this is not of force to make such proof, that by reason thereof 7 c. Come in iwentute de purge. Can. l. Decuriones. C. de poenis. the fault should be strait way believed, albeit such fame be coadiwant, unto other proofs. And it worketh a presumption only, against the party, 8 c. Tua nos. de cohab. cler. & mulier. serving to put him unto his purgation. The second degree in Fame, is when it sprung up and had his original from a certain and likely presumption, and from probable matter. In which case it may of itself make proof, either in a fact done long agone; (as to prove by Fame, that a man is dead) or of a fact that 9 D D. in l. Siquidem. C. de adulter. cannot easily (by direct proofs) be convinced, but presumptively; as the very fact of adultery. For a fame with probable presumption growing upon some known act coming near unto such a crime, doth make proof of the very fact; so that the end of the prosecution be not of very 10 L. ubi adhuc. C. de iure dot. great prejudice: as for example; It may serve for proof of adultery, to the effect of debarring a woman's cohabitation or maintenance from her husband; but not 1 D D. in c. Veniens de testio. that she may be punished by death, where that penalty is the Ordinary punishment of that crime. A fame may then be said to be blown abroad, not only 2 c. inquisitionis. in fin de Accus. when the greater part of the whole neighbourhood or town do speak thereof, as occasion is offered: but also (in case the fact be of that nature, that 3 Panor. in c. cum oporteat. de Accus. it is restrained but unto certain persons, which by likelihood may know of it) then is it a sufficient fame, though none besides the greater part of such certain persons, do speak thereof. If it be bruited among some few only, and not by the greater part of such; then is it 4 c. super co. de co qui cognovit consang. uxor. properly to be termed a Rumour and no Fame. Now whensoever a fame touching some offence, runneth against any person: the judge may thereupon ground his Enquirie. For it is the common opinion of writers 5 Card. A'exan. in c. de Accus. col. 14. in those laws, that Fame doth succeed in place of an Accusation. One reason hereof is, because the very people among whom fame flieth, do seem (in some sort) thereby to prefer matter up, against a person so infamed: which ought to be as sufficient to excite the judge (knowing of it) to do his Office, as if one certain person or more did present it unto him. For by fame alone 6 Alph. Villag. li. 3. c. 6 conc. 3. an offence is said to be made known unto a judge, though not thereby to convince the party; yet to the intent of Enquirie, and of descending to a trial by that occasion. And (as was afore alleged) 7 Petr. de Palud. in 4. Sent. 19 q 4. a man upon fame alone, may be said publicly detected of a crime. Some Divines (for the times they lived in) most excellently learned, could say 8 Thom. 2. 2. that a public fame concerning any crime doth stand in stead of an accusation; and thereunto do apply that of Genesis, where the blood of Abel is said to cry out against Cain, when he had secretly murdered him. What hast thou done? said God to Cain. 9 Gen. 4. V 10. The voice of thy brother's blood crieth unto me from the earth: as if that cry of the blood did occasion the Lord to enter unto the examination of the impeached person. Therefore doth God (though he knew all things) say unto Cain; What hast thou done? If Fame be very brim and rife, 10 Panor. c. Tertio loco. de probat. etc. Tua nos. de appellat. then is it none in justice for a judge (though he be but an Ordinary, from whom an Appellation doth lie) to omit to make any proof judicially in acts of such fame, before he proceed. Albeit if an Appellation be brought, he must then be able to prove, that there was in truth such a fame before he proceeded. But if the fame be not so strong and vehement; than it is expedient for such a judge to have the fame (being not presented) to be in Acts, first judiciallie proved, by deposition of two witnesses at least. For 1 Clarus ubi supra. q. 6. so many will suffice to prove 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) do proceed upon a fame not presented; whether it be very brim and vehement, or otherwise: yet in them it is not requisite to be proved in Acts 2 Panor. in c. cum oporteat, de accusationib. that there was such fame precedent; because it is sufficient to be so, upon information made known unto them extraiudiciallie. For the law presumeth more strongly for their integrities, and freedom from Calumniation, Conspiracy, and wilful unjust vexation; then of every inferior ordinary judges. That Rule which is set down by Interpreters, that A fame ought to appear or be proved, before a judge do proceed, when as there is no Presentment; is subject to divers exceptions in law. For first, it hath 3 Felyn. in c. Qualiter. el. 2. de accusat. Clar. q. 6. no place in the crime of heresy, wherein (by the common opinion of writers) a vehement suspicion (grounded upon any credible relation) doth suffice to begin a special enquiry. Secondly, that Rule faileth 4 Bald. in l. Nullus. nu. 1. C. ad l. jul. Mayest. Innoc. in c. cum oporteat. nu. 5. de accusat. when special inquiries be framed either by commandment, or by knowledge of the prince himself; so such commission be obtained motuproprio, & for the princes own service; but not at the instance of any party particularly interessed therein: and such is the Commission ecclesiastical. Thirdly, it holdeth not 5 Abbas. in c. 1. de offi. Ordinar. when such enquiry is made, not to the end of punishing corporally; but of reforming the party spiritually for his soul's health. Fourthly, fame is not required, 6 Innoc. in c. Qualiter. el. 2. de accusat. where the enquiry is neither made for any punishment corporal or spiritual; but only to the end to find out, whether he that is presented or elected to an ecclesiastical function, be worthy thereof or not. For in such case, to the end of keeping back an unworthy person; the superior without either fame or other inducement, aught to inquire of mere office, very carefully touching him. But it is otherwise, when enquiry touching a fault is instituted against one that is already admitted into that function, whether the proceeding be then for his removing, or for other punishment. On the contrary side it is received by the law Canon, that albeit an evil fame yea 1 Panor. in c. qualiter. el. 2. de accus. though it be not scandalous and offensive, be sufficient to ground enquiry against a private or common person: yet every fame (except it be also scandalous) will not suffice so to proceed against a Prelate. The whole course by law prescribed touching infamy or evil fame going afore a special enquiry, in other 2 Clarus. ubi supra. q. 6. Alphons. Villag. passim. realms abroad (even where the Civil and Canon laws have place) is long since quite grown in disuse and left unpractised in both courts, not only in those excepted, but in all other cases also beside, as by sundry writers of those countries is testified. Nevertheless in the courts Civil and Ecclesiastical within this Realm, this kind of proceeding upon an Infamy according to the very prescript form of those laws, is still required to be practised and observed. So that by this discourse (how fame doth open a way to enquiry) may appear, the untrue and injurious Calumniations of those men, who being led by ignorance, or some worse matter; do buzz abroad, that Ordinaries may make a fame, when and how often themselves list. But if they could; to what purpose should they be so unjustly minded, having (by law) so many sundry other sufficient inducements besides fame, to ground their special inquiries upon; as partly have been, and partly yet remain to be here opened? For another & a second means besides presentment, which doth also open way unto special enquiry, is Clamosa insinuatio, being not very unlike to a fame, yet not the same. And it is, 3 c. qualiter. el. 2. de accus. etc. licet Heli. de Simonia. when as a judge stirred up by sundry frequent reports of credible persons (yet without their depositions) doth descend to special enquiry, even without any preferrer or prosecutor. And this is to be done by him, when as without scandal and offence, it cannot be dissembled or winked at. For in this case, not only the judge may, but also he ought to proceed unto enquiry of his mere office, against him which is so detected and scandalous. A third means of grounding special enquiry besides presentment, is Complaint, made either by private judicial, or by Canonical denunciation. For if such be made (yea though no fame doth appear) the judge is bound 1 Bald. in l. Mancipia. C. de seru. fugit. nu. 1. to frame enquiry of Office against the party denounced; or else he is to be punished, no less than he is to be, when public denunciation or presentment is made by officers, 2 Bald. in l. invenimus. C. de probat. if he shall not proceed thereupon. But the private judicial and general Canonical denunciation do herein differ from public denunciation; because after public presentment 3 Pract. Conradi. fol. 236. nu. 21. be made to the judge, the Prosecuters are not bound to deal any further therein, but do leave it to the judges mere Office: whereas in the other two denunciations last mentioned, the Denouncer doth prosecute and solicit the office. 4 Clarus. ibid. q. 7. This denunciation cometh in place of a public fame, and thereby openeth a way to enquiry. And by Custom 5 Alberic. in l. ea quidem. c. de accus. nu. 9 now generally received in other countries, any man is admitted in this sort to denounce an offender, no less than those which be officers specially deputed. The manner of preferring denunciations in the parts on the other side, is in effect thus: He that denounceth, 6 Angel. de Maleficijs. doth make known to the judge in Acts, that at such a time by such a man, this or that misdemeanour was committed; and that N. and A. etc. are more sufficientlic informed in the particulars of that matter. In preferring up Presentments it is to be observed, 7 Clarus. ibid. q. 12. that if the crime be done by committing any thing; the place must be expressed: but if by omitting; then the setting down of the place, is not required of necessity. Here perhaps some will object against this, & all other means of opening a way to special enquiry, besides fame; sundry speeches of writers in both these laws, whereby they do seem to require, that a fame necessarily go before every such enquiry. But we are taught 8 Bossius. tit. de Inquisit. nu. 27. how they ought to be understood; & that in all such places, they do but speak thereof, as of one especial and principal means, not excluding all other: and therefore must be thus taken: that by law a fame is but then necessarily required; when there is neither denunciation, complaint, nor any other means beside, that be allowed to be sufficient, whereupon to ground a special enquiry. A fourth means besides Presentment, whereupon a special enquiry may be entered unto, are Indicia, so called ab Indicando, which (according as the english word with us is commonly used) I do interpret Evidences, or certain marks and tokens. For when other inducements thereunto do want, these may serve that turn. In which respect it is said 1 Bartol. in l. congruit. ff. de office praes. that Indicium sufficiens aequiparatur Fam●…: a sufficient evidence or sign is aequivalent unto a Fame. Like as on the contrary side, when such evidence cannot be had, a Fame may serve in stead thereof. Therefore in foreign parts where the course of having a Fame to go before Enquirie special, is by custom disused: yet nevertheless, if no sufficient Indicia or evidences for the matter do appear; 2 Alphon. Villag. lib. 3. c. 15. conclu. 8. even in those countries it is still required, that at least a Fame do run thereof. So that these and all the rest of the means, that open a way unto special inquiries, are like the Physicians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; i things that may serve to be used, one of them instead of another that wanteth. These Indicia be in law taken two several ways: either in a more large acception: as when they signify such presumptions which be expressly set down in law, to make a full proof, 3 Arg. l. Indicia. 19 C. de rei vindicatione. so that no proofs may be made to the contrary, commonly called praesumptio juris, & de iure: or else they be of a more strict and proper acception; importing some sign of a crime or other matter, 4 l. Solent. ff. de Prescript. which may serve to the finding out of Truth. And this sort of Indicia are to be considered in three 5 Clarus. §. fin. q. 20. several degrees. The first are called Levia Indicia, light inducements or suspicions: The second be Probabilia Indicia, more strong & probable: & the third are Indicia violenta, vel indubitata; most pregnant and forcible evidences. The first degree of them doth produce these two effects; First, that the party detected may thereupon be arrested & attached (by courts having this authority) lest he fly: and secondly, that the judge may enter into the taking of further particular informations thereof In processu informativo: but they are not sufficient strait way to frame thereupon processum punitiws. For to take further informations 6 Salycetus in l. ta quidem. c. de Accusat. only touching a crime, any probable suspicion sufficeth; by which the judge may (with reason) be induced to believe, that the crime was committed by such an one. And it is no marvel that such reasonable suspicion may serve a judge so far, as to take further informations; seeing it excuseth an Accuser from manifest calumniation by Tully's judgement, as he testifieth in these words. It may happen (saith he) 7 Cic. pro Rosc. Ametino. that a man accused is innocent. But notwithstanding he be clear 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 upon good suspicion; therefore may be not be taken wilfully to misuse, and manifestly to calumniate or conspire against him, which is guiltless. The second sort of Evidences (properly and most usually termed by the general name of Indicia) though they be of less force, then to make probationem semiplenam: yet arethey 1 Bartol in l. fin. ff. de question. sufficient to ground a special Enquirie upon. Inquisitio potest fieri, quando extant indicia propinqua ipsi male ficio; quia tunc surrogantur loco infamiae. And of this sort are those laws to be understood, 2 ●…nor. c. 3. loco dt ●…oat. which affirm Indicia non sufficere ad convincendum: such inducements are not strong enough to condemn a man. Yet 3 Clarus. li. 5. § fin. qu. 63. & ibi remissiuè. if more of them together do happen to fall out in one matter, each of them being severally (in his own nature) perfect: then may they all be joined together, and may suffice to the condemning of him, unto a mulct pecuniary or fine; but not to condemn him unto any corporal punishment; saving when the Sovereign Prince, or his chief Counsel of State, do thereupon proceed. And yet even in this Case, such corporal punishment ought to be extraordinary only: that is, some less and milder punishment, than the prescript of law provideth for an offender in such a crime; if he had been convicted either upon his own confession, or by witnesses; and not alone per Indicia; that is, but by presumtive proofs, or probable Evidences. For it is to be understood, that in most foreign parts, the manner of all punishments, are arbitrary to the judge, according to circumstances. The third degree of them are such, and so strong evidences, as that not only special Enquirie for punishment may upon any of them be framed: but the party may 4 Practica. Car. fol. 72. thereupon alone, be also condemned; as is commonly holden by writers in law; especially in secret treaties, hidden crimes, and all such, as (in their own nature) be of difficult proof. That such indicia indubitata or violent presumptions may serve for full proof in matters of very difficult proof, we have an example in Scripture of Solomon; 5 1. Reg. c. 3. V 27. c. afferte de praesumpt. whose wisdom is therefore highly commended, because he grounded his judgement (whether of the two women that contended, was the true mother) upon the motherly pity which he found in her, that would rather forego her natural child, then to see it dismembered and parted in twain. Now because of this diversity among these Indicia, if any shall require a true note of distinction, how these three sorts may be exactly discerned one from another: it is to be answered, first generally out of the words of law: Quae 1 l. 3. § 1. ff. de Testib. argumenta, ad quem modum probandae cuique 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 know, that 2 Angel. de malef. ver. fama publi. nu. 9 Pract. Casoni. fol. 14. nu. 2. the whole matter Indiciorum, of Evidences, must be left to the arbitrary judgement of an upright and sincere man, such as a judge is presumed to be: That he according to the quality of the person, crime, and manner of the suspicions and presumptions may judge, in which of these three degrees every Indicium, or several Evidence is to be taken. A fift means (besides Presentment) of opening way to special Enquirie, in processu punitivo, is that detection which the Grecians call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. 3 joan. 8. So was the woman taken in the very act of adultery in the Gospel. The Latins term it thus; Deprehensio in flagranti crimine. And upon the borders of England, taking one with the bloody hand; or (as it is more commonly expressed) taking an offender with the manner. For of this it is testified, 4 Clar. ibid. qu. 8. that it openeth way to special Enquirie. And the like is to be said, when a judge himself (sitting publicly) seethe some crime committed. Whereof writers in law do assign for reason (in this behalf) the judges just grief, upon the indignity of the fact, and upon the audaceous boldness of the offender. A sixth means producing special Enquirie, is Notorietas facti, vel Euidentia sceleris. 5 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 testify it. For then 6 Aug. super Gen. c. evidentia. de accusat. (as saith Saint Augustine) which saying is also repeated in the Canon law. Euidentia patrati sceleris non indiget clamore accusatoris. What should a judge require an Accusers prosecution, where the crime is notoriously and plainly committed? So it is testified else where, 7 ●. Tua nos. de cohab. cler. & mulier. Si crimen ita publicum est, ut meritò debeat appellari Notorium; in eo casu nec testis, nec accusator est necessarius; cum huiusmodi crimen nulla possit tergiversatione celari. But this word Notorium, hath three acceptions in Law. The first is Notorietas vel evidentia facti, whereof we here speak. The second is 1 c. Tua. ibid. publicum vel Notorium per famam. The third is that 2 l. Diws. § 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 unto a judge of some crime. And so it is taken in those words of the Civil law, 3 l. ea quidem. C. de accusat. Nuntiatores notorijs suis assistere iubentur. Presenters, viz. voluntary relatours and not Officers thereunto specially appointed (except their Calumniation be manifest and apparent, as the best writers do interpret) must make good and justify that which they present. And again, 4 Vide August. epist. 150. & 160. & Trebel. Pol. in Claudio. Verùm si falsis necne Notorijs insimulatus sit, perpenso judicio dispici debet. Now the second of these two Notoria doth open sufficient way to special Enquirie: but the first 5 Clarus. ibid. qu. 9 serveth not only hereunto, but even to the conviction also of such Notorious offender. Yet before the party may upon such notoriety be pronounced convicted; it is required, 6 Pract. Conrade. fol. 240. that this notoriety be made to appear judicially in Acts unto the judge (unto the speeding whereof, the Defendant also must be called) and not only by extraiudiciall information brought unto him. Upon which judicial 7 Ferret. Cons. 31. nu. 5. & 35. proceeding had, the judge, (before he proceed to sentence of condemnation) must by interlocutory decree pronounce such a fact to be notorious. A seventh means serving to produce first Enquirie in Processu informativo, and after in punitivo is that, which is called incidens cognitio: when upon examination of one offender, it falleth out another of his complices to be discovered. For thereupon (as it is the common opinion 8 Lud. Rom. in l. & si certus. ff. ad S. C. Syllan. of writers) the judge may ground his further enquiry and taking of Informations; albeit the supposed offender 9 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 witness, 10 Clarus. ibid. q. 21. but as of a bare relator: which yet may give just occasion unto the judge to enter into further Enquirie thereof, by taking Informations, as the saying of any other mean or bad person also might, in like case. An eight means to open way, and to occasion the judges special enquiry in processu punitivo is, Enormitas criminis; the great heinousness of some crime. For it is holden, 1 Arg. l. Si quis in hoc. C. de Epis. & Clericis. Bart. in l. 2. ff. ad l. jul. de adulterijs. that even in strict terms of law, against such a grievous crime, a judge hath power so to proceed, yea without any fame or Indicia, viz. Evidences judicially proved and set down in the Acts of the Court afore. Ninthly, the judge may lawfully descend to special enquiry of office, if he shall perceive the Accuser 2 Alph. Villag li. 3. c. 17. concl. 18. to collude with the accused or to go about to transact, & by secret composition, to shut up the matter betwixt them. So if he which is supposed to be rob, 3 Bart. in l. inter omnes. § rectè. ff. de furtis. will collude with the thief, and say that he was not rob: yet if there be likelihood to the contrary, he is not to be believed; but the judge thereupon is to make special enquiry; Quia interest reipub. puniri furtum. A tenth means besides presentment, or any of the former, which may justify a judges proceeding in this behalf, is when it is grown so far (without 4 gl. in c. 1. de elect. c. 2. de accus. in 6. the defendants alleging) that none infamy, or any of the former means lieth against him, as that it is come to some act usually sped post litis contestationem, that is, after issue joined. For then (by the common 5 Aretin. in c. Qualiter. cl. 〈◊〉. de accusat. Foller. Pract. cri. fol. 102. opinion of writers in law) it shallbe too late for the defendant to object the want of fame, and of other Inducements, etc. So that the proceeding (for want of the defendants reclaiming in time) shall stand sound, and shall not be avoided hereupon, for nullity or any error. The last occasion of a judges justifiable proceeding by enquiry against an offender without any of the former inducements hitherto spoken of, is: when his proceeding 6 Alph. li. 10. concl. 5. tendeth to a fatherly and spiritual correction for the soul's health only: and not unto any public, corporal, and exemplary punishment. So that upon all, which hath been spoken in this behalf, we may conclude in the very contradictory of this opinion: That a Court ecclesiastical (by the laws both Civil and Canon) may many ways proceed against an offender, without either Accusation or Presentment. CHAP. VIII. That to proceed sometimes against an offence, otherwise then upon an Accusation or Presentment, or then upon an Appeal or inditement (which too at the common law have respective correspondence unto the two former) is no diverse, much less any Contrary or repugnant course to the laws, statutes, and customs of this Realm. This is proved by common law, statutes, and practice in proceeding informative and punitive: with answers to certain objections made to the contrary. SEeing then that not only by Canon, but also by the Civil laws (within the compass of which two learnings Accusation and Presentment do properly fall) there be so many other means beside either of them, to open way to a judges proceeding against a crime: let it now be considered, why an ecclesiastical court may not be allowed an ecclesiastical course of proceeding; or whether by the statutes or common law of this Realm, an ecclesiastical judge be any way restrained and prohibited to proceed upon any other grounds besides the one of them two. For if the Common or statute Law prohibit this; then are such Canons, etc.: thereby in truth reversed and void, as contrary and repugnant to the Laws and statutes of this land. But if no such contrariety, repugnancy, or prohibition shall be found: then will there be no cause, why the proceed of judges ecclesiastical against Crimes, may not (in this behalf) still continue, as in all times bypassed they have done. Notwithstanding there be great diversities in proceed ecclesiastical from proceed at the Common law; as in the frame of the Libel; in the answering of it; in the joining of issue; in the production, examination, & publication of witnesses; in exceptions or challenges against them, & Corroboratories of them; in the giving of sentence or judgement in writing, and in very many other points beside, too long here to be rehearsed: yet such diversity alone notwithstanding (so that the Common law, or statute, do neither contrary nor contradict them) those proceed shallbe nevertheless justifiable. For by statute 1 25. H. 8. c. 19 All such Canons, constitutions, ordinances, & synodals provincial, being already made, which be not contrariant nor repugnant to the laws, statutes, & customs of this Realm, nor to the damage or hurt of the King's prerogative royal; shall now still be used and executed, as they were afore the making of that Act, etc. So that no Canons establishing proceed only diverse, but Canon's contrariant or repugnant to the Laws, etc. be thereby repealed. Now we are taught by the rules of Reason, that two propositions retaining otherwise the same terms, the one being universally negative, and the other universally affirmative, be contrariant one to another. And though in materia contingenti both such may be false; yet they can never be both of them true. Therefore if the one be true, the other of them must needs be false. For example of contraries; the Common Law holdeth that All advowsons or right of patronage may lawfully, and without Simony, be bought and sold. This proposition then being true; the contrary proposition hereunto, which is established by the Canon Law: viz. that no right of patronage may lawfully or without Simony be bought and sold, must needs be false; and therefore by the Common Law, doth stand in this Realm repealed, in respect of this contrariety. The word Repugnant in the said statute (we see) is put after Contrariant, as of a greater force and efficacy: and therefore is to be understood, according to the common course of our speech, (albeit the Logicians do not so use that word) for the contradictory opposition; consisting of an universal affirmative and a particular negative; or of an universal negative and particular affirmative. And these be so opposite ex diametro, and do always so directly thwart one another; that in every subject matter whatsoever, the one of them being true, the other must needs be false: & è converso. As for example; The Canon Law holdeth, that All fight in Duello, that is to say, trial by battle of one single man against another, is unlawful. But the Common Law (contradicting this) doth hold, that some trial by battle (as in a writ of right, and in an Appeal of murder or robbery) is not unlawful. And again, the Canon Law holdeth, that none advowsons or right of Patronages may be in gross. But the Common Law is in the flat Contradictory hereof, that some advowsons be in gross, as well as others be appurtenant to a manor. And therefore in neither of those Cases such Canons have place in this Realm, in respect of this Contradiction and Repugnancy. If then it may be showed, that some proceed of the Common Law against crimes, be also entered into without either Accusation or Presentment going afore: then where the course of both Courts be not so much as divers; there cannot possibly be found either Contrariety or Repugnancy: unless we should say, that the Laws and statutes do condemn that, as unequal and unjust in Courts Ecclesiastical, which they establish and practise in Temporal Courts for good and just. As then an Appeal brought at the Common Law, doth most nearly resemble an Accusation in the Civil and Common Laws: so hath inditement a correspondence, and doth answer unto their Presentments, being also in statute, often called by the name of Presentment. These two kinds of prosecution of Crimes, at the Common Law be mentioned in a statute of K. Henry the fift, in these words: 1 7. H. 5. ca unico. divers men of malice and enmity, and for gain, and vengeance, have often caused to be indicted and appealed divers of our true liege people, of treasons or felonies in the County of Lancaster; pretending by those Appeals and Inditements, etc. And though these two be the courses of bringing a man in processu punitivo into trial of matters Capital: yet for infinite other offences and crimes not Capital, the Common Law hath use of Bills in the starchamber, and of Informations in the other Courts, at West-minster. Neither of which can be truly called either Presentment or Accusation. Not Presentment, because no such peculiar charge of preferring upon their oaths is laid upon them, as is upon jurors at Inquests, that find Inditements; or as is upon Churchwardens and Sidemen, who make Presentments. Not Accusation, because (as is aforeshowed) such Bills and Informations, be both of them put up, ex officio promoto. Again, they cannot be called Accusations, because those, who put them up, are not parties; but the King is the party. For it is thus said in Statute, 2 3. H. 5. ca unico. He that will sue for the King to attaint them, that pay or receive such coin (as is there forbidden) &c. shall have the one half of the forfeiture. And after in the same King's days: 3 8. H. 5. ca 3. He that will sue for the King in this behalf, shall have the third part of that pecuniary pain. So that whosoever doth prefer or follow them; yet the suit is the Kings, and he the party; whose also the Court is, where the suit is prosecuted. It may appear, that at the Common Law, other means beside Appeal and inditements (which respectively do resemble Accusation and Presentment) be received to ground a judges Enquirie upon, in Processu informativo; whereupon also followeth oftentimes processus punitiws; that is, the trial of the Offender. As first, by the common custom and practice of the land. For do not some several justices of the Peace, upon their own suspicion conceived, or upon secret relation of others (whom they credit) send for men by warrant to be apprehended and brought afore them? do they not take informations sometimes against supposed offenders, upon depositions of witnesses, before the party be sent for? Do they not also without any such witnesses, oftentimes examine the party himself, and (according to their discretion) bind him to the Peace, or to his good behaviour: or perhaps send him to the common jail to be imprisoned? Do they not receive and sometimes prefer and procure inditements to be found (as of common Barattarie and such like Crimes) upon their own only suspicions, or by information of some one other (perhaps an enemy) and upon other as mean presumptions? Are not sundry persons traveling through some town, or found in some privy search lodging there (with good reason) oftentimes brought to a strait examination and enquiry of matters Criminal; upon the only view of their persons and deportment, without all further intelligence or cause of suspicion? Yet be all these without Appeal or inditement; and many times upon as light and perhaps lighter suspicions, and informations less likely and credible, than any be admitted (in like case) by the Commissioners ecclesiastical; and much less by Ordinaries, who must (in case an Appellation be brought) in a more strict course of Law, be able sound to justify the inducements, that they had to lead them into those criminal questions and inquiries. Yet upon these grounds alone, not only the apprehension of the parties, their examinations personal, 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 behaviour, making them to answer inditements of Barattarie, or such like; imprisonment of them by a good space, sometimes till the next Sessions or general Assizes; and sometime extending discretion even to condemn men to be whipped publicly upon the single Denunciation of a woman being infamous, and party in the pretended Crime: one who is as easy to be suborned to speak and charge a man falsely, as to deal lewdly; and whose testimony (though it were not singular) is of no weight and credit. Much less therefore (being but one) ought she to be taken for sufficient to condemn any, flat contrary to Gods own Moral Law. I have also known Articles put up against a good Minister and Preacher, to have been rejected in respect of their insufficiency, by the Commission ecclesiastical. Yet the same Articles (being preferred even by his adversary, but assisted with some of countenance in the Country) have afterwards served to have an inditement found against him, to be a Common Barattour: yea by those and before those, who perhaps might all of them be opposed, to tell directly, what Barattaria truly signifieth and importeth; and whence it is derived. Likewise do we not see, that upon the like grounds to some of these, a man may be touched with great disgrace and discredit; and that not unjustly? As when some great and potent man in a Country (against whom few or none there about dare openly deal) is put out of all Commissions and public charge in his Country, upon private (yet credible) information given to some of the great officers of the Kingdom, touching his oppression, or other ill demeanour of himself? Do not the like grounds of Suspicion, of private Complaint and Information exhibited unto them, justly and sufficiently (often times) move and warrant the Lords of the Counsel, to call some great malefactors into question, and to detain them, till they be acquitted or condemned by due trial? Besides this usual practice, do not the very Laws of the land allow of these and like inducements to take informations, and to inquire into matters Criminal? 1 10. H. 7. fol. 17. For in an Action of false imprisonment, it is a good plea for the defendant to show the felony, and to plead that he took the plaintiff for suspicion of such felony: per Frowick. And why then, may not three or more of the Queen's Commissioners ecclesiastical, be in reason as deeply trusted upon their suspicions (though in truth they use it not in this sort) as some one single justice of Peace may be, upon his own only suspicion? And is it not 〈◊〉 ●…ikely, that they will have as good ground of their suspicion, as he hath of his; and as much care of justice and of their own credit? In an old 1 3. Ed. x. ca 12. statute we find, that notoriousness of a fact, an evil name of a man, yea and light suspicion also of Felony, may any of them serve, 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 ask whether in the original Rolls, this statute do speak of imprisoning; or else of strong and hard penance, which such be appointed to suffer, that refuse to be justified by the Common law of the land. And as these and like inducements do serve to ground the process informative: so do they no less, even in Process punitive, when the enquiry and examination is to punish the offender. For if any the judges at Westminster or of Assizes, have just occasion of suspicion ministered of a misdemeanour to be committed by some belonging to that Court, touching matters of their Courts and present jurisdiction: may they not, and is it not usual with them, even hereupon only, without any inditement or other prosecution of party, to call such supposed offender unto examination before them, to the effect of punishing him, according as the quality of the fact shall fall out to require? In the time of King Henry the seventh it was provided by 2 19 H. 7. ca 14. Parliament, for suppressing of Retainours; That two justices (whereof one to be of the Quorum) might call all such persons, as they shall think to be suspected of any Retaynour, and them to examine of all such Retaynours by their discretion: and their certificate into the K. Bench against all of them so examined, and by that examination found in default, to be against them as a conviction: and their certificate of any persons by that examination accused to be Retainours, to be of like effect and strength against them, as an inditement. By the same it was also 3 Ibidem. enacted, that such justices (as afore) or the Lord chancellor, or Lord Keeper, or three of the King's Counsel attending him, should have full power and auctoritte without any suit or information made or put before them or any of them, to send for by writ, Sub poena, Privy seal, Warrant, or otherwise by their discretion, for any person so offending; and the same person to examine by oath or otherwise by their discretion: and to adjudge such as should be found guilty by verdict, confession, examination, proves, or otherwise, in the forfeitures and pains, as though they were condemned after the course of the Common law, etc. So that it was thought then by the whole state of the Realm, none unjust course (no not in a Temporal Court) for Magistrates to call some offenders into question criminal, whom they did but think to be suspected, and to condemn them without either inditement, Appeal, suit, or Information made. By a Statute made in her majesties time it is enacted; 1 1. Eliz. ca 1. That if any man be in prison for supposed speaking in behalf of foreign Supremacy, and happen not to be indited within one half year of the offence committed; that then he shall be set at liberty. Whereby appeareth, that a man may happen to be brought into Question criminal, and to be in prison also (which is an Attachment, and some punishment) without any inditement or Appeal precedent. The statute for 2 1. Eliz. ca 2. Uniformity in Common prayer, mentioneth three means of Conviction by the course of the Temporal law: viz. Verdict of twelve men; the party's confession; and the notorious evidence of the fact. If then the Notorious evidence of the fact without Appeal or inditement, Verdict, or Confession, may (at that Law) serve for a Conviction: may it not with as good justice, and equity serve for the same purpose, at the Ecclesiastical law, without either Accusation or Presentment? If here it be said by any, that though such practice of Temporal judges be lawful, and the Laws and Statutes be just in this behalf; yet perhaps the Common Law will not give so large a scope unto judges ecclesiastical: against such doubters I will object those words of 3 Magna Charta. cap. 1. Magna Charta, where it is not a new granted, but Confirmed only, That for evermore the Church of England shallbe free, and shall have all her whole rights and liberties inviolable. And this is a confirmation of their rights and liberties, before any grant was made to the rest of the Realm beside: being yielded at such time, when as (through general ignorance) it was untruly holden, that the state Ecclesiastical (signified there by those words, The Church of England) had not their jurisdictions from the Prince, but from God alone, derived down to them by the means of the Pope: and therefore that their Courts and Laws, (whereby they proceeded) were not in any respect to be accounted for Courts holden by the King's authority, or their Laws the King's Laws. Whereupon arose that untrue and prejudicial phrase of severance of a Court Christian, from the Kings Court. So that if they were confirmed to them, when their jurisdictions (in fact) were not holden of the King, as now they be, and aught to be by God's Law: is there not then more just cause so to continue them at this time; seeing they be not so much as a diverse course from the Customs and Laws of the Realm in Courts Temporal? But that this course of proceeding in causes Criminal, sometimes without either Accusation or Presentment, is in truth a right and liberty of the Church of England, may appear by that, which to this point hath been afore delivered; and by the continual practice also of those Courts, in all ages: as the Acts thereof from time to time do make very manifest. Yet, this is more particularly and nearly proved, in the very point that we handle, by a 1 1. Eliz. ca 2. statute made in her majesties reign; where it is provided, that Ordinaries not only at any other time and place, then at their visitations and Synods may take accusations and informations (a word of far more large signification, than Presentment:) but may also inquire elsewhere within their jurisdiction. Which Enquirie is afore showed to be always ex Officio; and (being absolutely spoken without further addition, and in some sort severed from all ki●…de of Informations) must necessarily be without Presentment. But how far and in what manner may they so do? Truly in like form as heretofore hath been used in like cases, by the Queen's ecclesiastical Laws. If then to proceed Criminally without either of them two, be warranted & practised by the Queen's ecclesiastical Laws (as afore is showed) assuredly this Statute doth avouch and justify them. To this disputation may be referred that objection, which the Notegatherer maketh touching a 2 11. H. 7. ca 3. statute of K. Henry the seventh; Note gatherer. whereupon (he saith) Empson and Dudley proceeded, that was 3 1. H. 8. ca 6. repealed by another in the time of K. Henry the eight; although he putteth it under his title of the laws of England, as by them seeking to impugn all proceeding ex officio; albeit under presentment (which this opinion alloweth) proceeding ex Officio, is necessarily implied, and presupposed. For answer whereof; it is true, that the said statute was so repealed: but whether it were the same and the only statute, whereupon Empson and Dudley proceeded, is left there uncertain and untouched. Howsoever it was in this behalf, seeing it authorised all justices of Assize and of the Peace, to proceed thereby; it is most probable, that many besides them two, did also deal by virtue thereof. The effect of the said statute was, that upon information to be made for the King afore justices upon any penal statute not extending to life or member, they might (without inditement) hear and determine all offences against the form of any statute in force. The reason of making the said statute, is signified by the preamble to have been; for that, although at Session's charge was given to inquire of many offences against statutes; and Inquests to that effect were straightly sworn and charged to inquire and to prefer the truth: yet they were letted to be found by imbracerie, maintenance, corruption, and favour; by occasion whereof the statutes could not be put in due execution. And again in the same place: The twelve men, for the causes afore rehearsed, will not find, nor present the truth. howsoever this were at that time, it may be feared, that it is in some place too true still, even until this day. So that if this were then a sufficient cause to make such a statute; the cause still continuing, if not increasing; that statute will seem to have been (in that regard) less unreasonable. In the statute of Repeal thereof, for the reason of abrogating 1. Hen. 8. c. 6. it, is only assigned; That thereby many sinister, crafty, feigned, and forged informations have been pursued, to the great damage and wrongful vexation of the subjects. But this might aswell happen, even when men be prosecuted by way of inditement. For is it not usual to find them upon any one man's evidence and information, the jury not regarding (oftentimes) what enmity rests betwixt them? Therefore it was not the course by information that displeased; but the badness of the informations that gave occasion of repeal. For by statute, even in K. Hen. 8. 31. Hen. 8. c. 14. his days, an Information was made equivalent unto a presentment by verdict of twelve, in matter of heresy, that is far more penal, than the former. Which cruel statute I would not have alleged, but that the Notegatherer groundeth himself thereupon, for another purpose. And we see, that there is no such cause alleged, as the Notegatherer insinuateth; either as if it were an unjust & unreasonable course, or in respect that it was ex officio, at the instigation and solicitation of some one person; or yet, that it was without Appeal or inditement. For if it had been simply unjust; then all the treasure which had been levied by colour thereof, should have been restored. And it is evident, that Bills and Informations against offenders, are still in frequent use, and may be preferred for the Queen by any, and against any, whomsever. And those which be found offenders, may (without either Appeal or inditement) be condemned and punished thereupon in sundry great penalties and losses both pecuniary, corporal, and of their good name and credit. And for further proof, that it is at this day holden none unjustice by the tempor all laws for to ground an enquiry, yea, and also a Conviction without either Appeal or inditement, is plainly proved by a latter statute, which is yet in force. For justices of 5. & 6. Edw. 6. cap. 25. Peace at their Sessions have authority to inquire of the offences of them, which be admitted to keep Alehouses, not only by Presentment, but by Information, or otherwise by their discretion etc. and may hear and determine the same by all such ways and means, as by their discretion shall be thought good. And a little after it is there enacted; that the Certificate of the justices touching every such Recognisance and offence, shall be a sufficient conviction in the law of such offence. So that for this one kind of offence, as much is established by this statute, as was for sundry others, by the aforesaid repealed Act. And therefore it is no course of proceeding condemned as simply unjust; howsoever the famous King Henry the eight, was willing at the very entrance of his reign, to gratify his subjects by that Repeal. Another objection in this behalf is taken out of the preamble of the repealed statute for heresy, made in the time of the aforesaid king Henry the 8. the words are these: viz. It standeth not 25. H. 8. ca 14. with the right order of justice, nor good equity, that any person should be convict, and put to the loss of his life, good name, or goods; unless it were by due accusation and witness, or by presentment, verdict, confession, or process of outlawry. Which words (you see) do speak of conviction, and of being put to loss of one of those three, and not of the calling into question and manner of proceeding. This doth appear, in that to the word Accusation is joined Witness, with a copulative: whereas the opinion (whereof we treat) implieth, that either upon any Accusation or yet upon Presentment (without any more ado) an Ordinary may ground his further proceeding. But a man may not be convicted in a Court Ecclesiastical, either upon a bare Accusation or Presentment without witnesses, or his own confession: to which (I think) may well and with good reason be added, wilful contumacte, and not presumed only; which contumacy both in Ecclesiastical Courts, and some others of this Realm, amounteth to as much (in construction of law) as a confession: and it hath a correspondence unto an outlawry, that is a kind of conviction, at the Common law, grounded upon wilfulness only presumed. Moreover, this preamble doth not rest in the two words of Accusation or Presentment, being the only things required (by this opinion) to warrant proceeding Ecclesiastical; but addeth also witness, verdict, confession, or process of outlawry: and therefore cannot (by any means) be referred unto enducements, to ground proceed upon, but only unto means of conviction: and the rather, because in that whole sentence, no verb passive is used, but convicting and putting to loss, etc. which maketh me the more to marvel, how the word Presentment, with a disjunctive, came in amongst the rest: as if by a Presentment alone, a man might be convicted, or put to loss of any of these three. Some other words following in the same preamble, are also Ibidem. brought for this purpose, viz. wherefore it is not reasonable, that any Ordinary, by any suspicion conceived of his own fant asia without due Accusation or Presentment, should put any subject of this Realm, in the infamy and slander of heresy, to the peril of loss of life, loss of name and goods. These words are inferred upon the former, and are directed unto none other crime but Heresy, where the peril and penalty is so grievous, as loss of life, loss of name and goods, jointly together; & therefore can by no reason be drawn & stretched unto every other crime ecclesiastical, where no such peril of penalty, or of punishment resteth. For words of statutes are of strict interpretation, and are most strict in matters criminal and penal, and therefore may not be extended unto other crimes, then are expressly mentioned; yea though there were (in both) a like reason. Whereas (in truth) betwixt the punishment of Heresy, Atheism or Apostasy, 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 amendment and reformation of the party himself is past, and he is therefore taken away by death, to the intent others may be terrified by the example, and that he have none opportunity to entice any more to his heresies, or to continue in his blasphemies against God. But in the correcting of all other crimes ecclesiastical (though secondarily sometimes the terror of others is sought) yet principally the parties own reformation, and bringing unto penitency and amendment, is intended. For hereby he sustaineth no loss at all, not so much as of his good name, but rather a gain; because after his reformation and repentance, he ought to be (of all Christians) holden as dear and precious in God's sight, The Angels rejoice at the conversion of a sinner, and do not upbraid. as if by falling into the sin, his credit had never been impaired. In which respect those Canonical penances were by the fathers of the Church, and by the old and pure Canons said to be medicinae animae, rather than poenae: yet not as satisfactory for the sin, but as good inducements unto, and also testimonies of repentance. And you know, 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, unto that which is much less likely (viz. à maiori ad minus) affirmatively, as must needs be out of this place: for thus their objection must be gathered: Without accusation or presentment of heresy; none shallbe put in peril of loss of life, loss of name, and goods: therefore without the one of these two, an Ordinary may not proceed to the punishment of any other less offence ecclesiastical. Yea though no one of these three, and much less all of them be any way thereby hazarded, or brought into peril. Furthermore in these last recited words there lieth a plain opposition, betwixt any suspicion conceived of the Ordinaries own fantasy: and a due accusation or Presentment. Therefore, if sound and credible information, notice, evidence, or other sufficient matter may appear to be brought unto him, so that he cannot be said suspiciously to conceive it of his own fantasy only, than the true intent hereof is thereby satisfied. But shall the Preamble of this repealed Statute stand for sound authority, and shall not the equity and reason of the very body of the Statute itself, 11. H. 7. though afterward repealed (much rather then a Preamble) be received for a good argument; proving that it is neither unjust nor unreasonable, at some times to ground a judges proceeding criminal, without either Appeal or Indictment? lastly, here seemeth a due accusation or else a due Presentment of Heresy, in reason and equity to be required: but it is not here, neither (as I take it) elsewhere by the laws of the Realm determined, what may be accounted a due accusation or a due Presentment of a crime in an Ecclesiastical court. Then (as I construe the law) must it be left unto the law ecclesiastical to determine, when these may be said to be duly done, either precisely, or by that which is aequivalent unto them. And so we may conclude, that to proceed in an Ecclesiastical Court against a crime, otherwise then either by Accusation or such Presentment, is not contrary or repugnant unto the laws of the Realm, but rather the like course often practised by them: and thereby the justice & equity of such proceeding more strongly confirmed and justified unto us, and the contrary opinion quite overthrown. CHAP. IX. The second opinion (here to be treated of) is, that No lay person may be cited of Office in any cause, but Testamentary or Matrimonial: the drift of that opinion is against proceeding of Office in matters criminal: the necessary use and equity of proceeding criminally, sometimes by the judges office, in courts both temporal and ecclesiastical. THe very drift of the second opinion (that cometh here to be disputed of) is; that a judge ecclesiastical may not proceed at all of Office, or make special Enquirie, (which is the effect produced by that cause) against any crimes or offences of late persons. For in debarring them from Citing any such, the very whole proceeding against them (unto which that is the introduction) is thereby also debarred: and by restraining their citing of Office unto causes only Testamentary or Matrimonial, all dealing against Crimes (without there be an Accuser) is thereby taken away. Which second opinion therefore quite overthroweth the presenting of any lay persons (though criminous) allowed by the generality of the next precedent opinion; insomuch as upon Presentments, followeth proceeding of Office by Enquirie; and yet both these opinions had one Author. So well be these men's conceits digested. But let us first examine what may be the colourable occasion of this second opinion, over and above the impounding of all ecclesiastical proceeding unto those two heads (spoken of in the first part) saving where the party convented himself is willing. Which willingness in the party for rights that may be supposed to be by him detained; but especially for crimes supposed by him to be committed, can never with any reason be intended, that it shall be obtained at his hands (considering there is so small use of any proceeding by office, but against crimes; and least of all in causes Matrimonial or Testamentary. That no lay persons then should be dealt with at all, for such crimes, as I have before proved to be of ecclesiastical cognisance; but be suffered to do them without controlment: I think (in charity) not to be their meaning. It must needs then follow, that it is the proceeding against crimes ex officio judicis, viz. without an Accuser, which is hereby principally condemned, as unreasonable or unjust. Therefore to prove it reasonable; I mind here (somewhat further) to show the necessary use & equity thereof, as well in the one court as in the other. And to clear it from unjustice; I will declare first, that it is both practised by the temporal laws, & also is by common and statute law, an allowed proceeding unto courts ecclesiastical: next, that it is practised not only by the law Canon (which many would take for a sufficient disallowance of it:) but also by the Civil laws, subject to no such exception; insomuch as they are used by the rest of Christendom for their Common law, by the grounds whereof, all their customary laws & ordinances be argued & disputed. And lastly, that such course of proceeding was used & is allowed by sundry examples in holy Scripture: together with answers unto the objections made to the contrary, as they fall fittest into each of the several parts of this disputation. The equity and necessary use of this course to be holden, may be showed by the party, which (by law) is supposed to be the exciter & stirrer up of a judge unto it, when none other person is found that will prosecute. This party I mean, is the 1 Clarus. ibid. q. 7 public interest which the Church or Common wealth hath, to have crimes punished: Interest Reip. provinciam purgari malis hominibus: & ne maleficia remaneant impunita: poena enim unius, terror est multorum. Bonis nocet, qui malis parcit. Sicut est misericordia puniens, sic est crudelitas parcens: with sundry other like rules of law & Canon, partly afore touched. Now the public interest doth not only rest in this, when some benefit is coming towards the common treasure, but is chiefly showed by procuring common tranquility and repose of the subject; with sincerity of religion, and integrity of conversation. And it was called by the Romans (especially after the popular state was turned into a monarchy) by the name of Fiscus: and may well and significantly with us (in respect of the meaning) be termed, the interest of the crown & dignity royal, which by all offences are said to be violated. Therefore do the 2 Practica Millei fol. 3. nu. 31. Civilians of other nations say, In quocunque crimine fiscus est accusator: against every crime the benefit of the Commonwealth is an accuser. And another 3 Clarus. ibid. q. 10. saith, that in what crime soever a judge may proceed of office, there Fiscus, the common benefit stands in stead of a Party. And it is testified to be a 1 Decius consilio 170. nu. 1. common rule, that even in an offence but against a private person principally, the judge oftentimes is of office to proceed to the inflicting of some penalty not expressly set down in law, against such an offence (for so is poena extraordinaria meant in the Civil law) by reason of the very interest the Common wealth hath, to have misdemeanours punished. In which 2 Clarus ibid. q. 12. respect some man that by law may not use action, yet is not forbidden implorare officium judicis, to stir up the judge (by petition) to proceed for his own office and duties sake. If her majesties most honourable council together, and every one apart; if the judges of the land; if careful and upright gentlemen of the Commission of Peace in every country; of office, and for their duties sake (for the most part) without any so much as private complaint (much less professed Accuser or Party) but perhaps upon some general muttering; yea and sometimes without so much, for a care and upon a fear (at large) only conceived, what may happen: did not, or should not inquire, look into, and take informations of riots, violences, disturbances of peace, conspiracies, felonies, murders, and of other misdemeanours and outrages, and so seek further to discover them, and to punish them, or bring them to justice; might it not justly be feared, that the realm would much more abound, and overflow in all kind of mischief? Would the Constables abroad, Headboroughs, Bursholders; and such other inferior officers and ministers of themselves prefer such up, or being found out and presented by others; would they effectually follow and prosecute them as appertaineth, so that the magistrates need not to take further care? I think it will not be so supposed. The like then may be said of Ecclesiastical officers and offences, notwithstanding all general Inquiries in Senes or Synods, and in visitations. But it will perhaps be said; in the one Court, they may be presented by the sworn men, and in the other by inditement of the grand jury, at Sessions and Assizes, etc. It is true, they may be; but how many, I pray you, are so found out, and indited (from time to time) by the grand juries of their own inquiries & knowledges: if either some party (grieved in particular) do not give evidence; or the judges or justices of themselves do not inform them, and urge them; notwithstanding the straightness of their charge and oath, and that they be taken out of the several parts of every shire? But be it, that some notorious murderer or fellow, is soby them indited at some times: how many other offenders in penal statutes (being men of any reckoning in the shire) are indited at all, throughout the Realm, in many years, if none of the bench do take care to urge the juries? as Recusants in coming to divine service, such as have and keep Retainers, and give liveries contrary to statute, only to band in quarrels, and to maintain bad actions; or yet such as go excessively in apparel, or which violate the statutes appointed for not eating flesh, upon certain days. Nay, it falleth out often times, that the more to give edge to such juries to do their duties, evidence hath been given unto them in these offences: yea, such and so good, as upon less evidence, they would perhaps have indited a man of felony, to the hazard of his life, especially if he were but some base fellow. Now, when none almost will be found to give evidence (saving in such a cause where he finds himself or some of his pinched) yea, and not in such neither, if the other party be a man of any tolerable reckoning or ability; and very few (albeit themselves do perfectly know it, or have reasonable good evidence given, against some man of power) that will find an inditement against such an one, although both he that giveth the evidence secretly, and all the jury may be in some hope, not to be known, who it was that did principally stir in it, because they be sworn to keep the Queen's counsel, their fellows, and their own: can it then with reason be imagined, that any man (almost) will be found voluntarily to become an Accuser, and to prosecute at his own costs and charges? Experience teacheth that most men will not, few that dare, and those only such, as take themselves in some particular respect, wronged. We see in a great multitude of penal statutes at the Common law, how men by third parts and moieties of forfeitures (besides great privileges in proceeding) are as it were alured and enticed to inform against offenders: yet very few (notwithstanding such great gain as thereby might be got) are found (besides such as make an occupation of it) that will voluntarily prefer informations: albeit there be enough that want the money, and could well be content to finger it, out of what male factors purse soever it came. The reasons of this backwardness in informing, I take to be the charge, trouble, common obloquy, and offence taken by them that be prosecuted, and thereby fear and peril to come unto some further mischief upon their procurement, or for their favour. Now, where men that are so well hired, and (by reason the Queen is party to such informations) so fully in all reason protected, will not, lust not, or dare not prefer matter penal against others: shall we look for better courage to be showed by private persons, against offenders in Ecclesiastical crimes; where they can expect no such countenance nor remuneration, to lighten the other burdens and dangers? and therefore either of Office to be prosecuted, or must be wholly left unpunished. In riots committed and done upon others, we see just cause of grief for the injury received: and thereby occasion given to seek lawful revenge. There was good remedy also provided for them at the Common law. Yet in the time of king Henry the seventh, for a further remedy and repressing of them by the Lords of the starchamber, the State was driven, to make a statute. By authority whereof their Lordships proceed in that and others ex officio, albeit (in many causes) they have some party grieved, that by way of complaint promoteth and prosecuteth the office. Yet the proceeding is (as was touched afore) by way of enquiry; in that no man (there) sueth for private recompense; but the scope of the whole process is criminal, & ad vindictam publicam, vel corporalem vel pecuniariam, applicand●…m fisco, non parti. So that where men have ●…ust cause of grief, yet was it thought very expedient & requisite, to provide a sharper course by way of enquiry of office. How much more than is this course needful to be holden, for punishing Ecclesiastical crimes, which (by the policy of this Realm) have no other punishment: and where no man hath (for the most part) any private injury, whereupon to complain himself? Here perhaps it will be said, that he which can give information of a crime to a judge; may accuse, or procure a presentment in an ecclesiastical Court (if it be of that jurisdiction) or may inform and procure an inditement, if the cause be Temporal: or else that it were meet his information be not believed, 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, etc. or else thou art but a slanderer) had not quiddam tertium to minister answer unto it; many grievous faults should pass unpunished, and many poor men should be sore pinched. For experience teacheth, that 1 Clarus ibid. q. 6. often times even in crimes publicly committed, you shall hardly find 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 known, that a witness is urged by the religion of an oath, and is not intended to thrust himself into the matter willingly: which as it ought to serve to take away all offence conceived by him whom he toucheth; so ought it to wash away all fear and other affection, in the witness. Then how much more probably may it be supposed, that there is many a mean man, (though otherwise able to give good and true information, perhaps of three or four witnesses, which do know the matter more fully, and touching other particularities, sufficient for a judge to inquire, and to look into the party so denounced) who nevertheless in many respects dare not become an open Accuser, or a preferrer of presentment, of inditement, or of information? because there is more cause to take offence at such, then at one, who is called and urged to testify. So that if there were no means for a judge Ecclesiastical to take knowledge, nor to proceed, but upon the voluntary prosecution and accusation of some party, (which is the course opposite unto proceeding ex officio) then surely many execrable offences that are most displeasing to Almighty God, offensive to the godly, dangerous to men's inheritances, and to the offenders own soul's health; yea and some that be pernicious banes to all religion, unto professing of God, and to Christianity itself, were like (through want of discovery and impunity) to spread themselves over both Church and Commonwealth in very short time, before Accusers would be found: Namely, Atheism, Apostasy from Christianity, Heresy, Idolatry, Schism, Error in matter of Religion, Sacrilege, Perjury ecclesiastical, Blasphemy, Subornation of perjury aswell in matters of marriage and testament (being of special consequence) as in others; Horrible swearing, Polygamy or many wives, Incest, Adultery, and other uncleanness, Drunkenness, excessive Usury, Simony, Forgeries of Ecclesiastical seals for testimony, Usurpation of the holy ministery, dangerous Conventicles, ungodly libeling, and such like. For who are commonly made privy to such sins, but men of like humour and affection? in whom we may not presuppose such sincerity of conscience, that for reformation of the party delinquent, they will abandon all friendship, and adventure any displeasure; even but to take a trial (with their great charge and trouble) how they shall be able to make proof of such matters against them. Besides these inconveniences, that otherwise would ensue; there be many others, all which (in particularity) to rehearse, would be over tedious. As after an accusation be begun, & that the judge seethe violent presumptions against the party convented: if the prosecutour for fear, for tediousness, for bribes, or by collusion would desist: were it not meet that the judge, of office should nevertheless proceed by enquiry; that the delinquent may reap, as he hath deserved? is it not meet that a judge should be more careful of the public good of the Commonweal, than every common person? and if he be so in deed, shall he not be allowed as good means to do these good offices to his Prince and Country, as any private person? And shall he not be as much cherished and allowed upon his own care, and for his duties sake, to procure the suppressing of sin and reformation of offenders, as to do it, at the instigation of any private party? Nay is there not less danger of suborning, corrupting, or instructing of witnesses by a judge (who hath no private interest to see a man punished) then there is in the prosecution by a party; who (for the most part) doth it but of malice, or upon some other sinister respect? And what if any that is in deed a friend, should be 1 joh. Andr. in add. ad Spec. tit. deinquisitionib. purposely framed to be an Accuser; to the intent some delinquent may escape, and not be called again into peril, upon the same crime? If it be said hereunto, that the penalty of calumniation, viz. poena taltonis which is to be inflicted upon him that faileth in proof of his accusation, will take away this suspicion; it may be replied, that in most countries, this poenatalionis is grown in disuse: but chiefly this may be answered (even where that penalty still hath place) that the Accuser may make half a good proof (as by one upright witness) and 1 c, 1. de elect. in 6. so should both the delinquent escape punishment; and himself also (by law) be freed from danger of the penalty of calumniation presumed, and of enduring retaliatio. Besides, the like equity may also often happen, when only two sufficient witnesses can testify of a crime: for if the one of these should be driven (of necessity) to be a party, than the full proofs (required in such cases) were thereby clear taken away; and so the offender should escape punishment. And therefore there is both necessary use, and good equity, to warrant proceeding ex Officio, in matters criminal. CHAP. X. An answer to some further objections made against the conveniency and reasonableness of proceeding against crimes of Office. TO cross the necessary practice of proceeding by Office, 1 In his title of Inconveniences. the Notegatherer assigneth sundry inconveniences by him surmised to arise thereof. First, (saith he) In treason and felony challenge is admitted to the Accuser: here none. For it is in the Ordinary to admit one to inform, and to witness again in the cause, wherein he was before deposed, to the contrary. What these last words, viz. to the contrary, do serve for here; neither I, nor perhaps the Author himself of the Notes, can conjecture. If Acouser here be taken for a witness (as is afore showed:) than I must tell him, that challenges and exceptions against witnesses not only be allowed unto the defendant at the law Civil and Ecclesiastical; but in a far more beneficial manner, then is received by use at the Common law of this Realm. For it is commonly said (how truly I am not to discuss) that a witness ought not to be received nor deposed upon his oath for the prisoner, as being against the Queen. And if such be permitted to speak at the prisoners request (as some seldom times hath been) and be not sworn thereunto: what credit will the jury give unto his bare words? nay what credit may they give to them, and save their own oaths; who are sworn to dealc according to their Evidence; which cannot be so termed, except it be upon oath, upon matter of record, or upon the party's confession. But if he take Accuser here, for him that voluntarily prosecuteth and soliciteth the office; then he may remember, that against such, the very Common law giveth no challenge; because any man may prefer inditements & follow them for the Queen: whereas the Civil law hath whole titles of challenges that may be made against Accusers; which laws be also retained in those Courts, against all voluntary preferrers to the office, who are holden as parties. But if the judge alone at the Common law cause an inditement to be put up; may the prisoner challenge the judge, when as he shall not challenge any common person, which doth it? That is true in part, which he saith, that in 1 Bartol. in 1. Diws. ff. de custod. reorum. enquiry of office, a judge (by the Civil law) may examine him which denounced the matter, as a witness therein. Yet it is not general in every denounceour or preferrer up unto the office, but only in such as be officers specially appointed, & sworn for that purpose. Now what want of equity, or what injustice is herein, seeing perhaps such knoweth the matter best, & was the man that informed his fellows of his particular knowledge therein, which made it to be presented? May not one single man in a grand jury do the like? And what should hinder such a man afterward to give also particular evidence thereof at time of the trial? For is there any course more usual, then for him that prefers up the inditement, & gives evidence to have it found; to be also a witness, & to give evidence of the very felony, etc. at the prisoners trial for life and death? But if it were true, that every Infourmer & prosecutour might be examined also as a witness (which is very untrue both by law and practice) how could this prove, that which he avoucheth; viz. that no challenge against the Accuser is admitted in Courts Civil and Ecclesiastical, seeing both against prosecutors and witnesses by the Civil & Canon laws, exceptions or challenges may be taken? And though it were true, that this were generally allowed, and were also an inconvenience: shall therefore the examining of one for another, when he ought not in equity to be, overturn all proceeding of office as unreasonable, which is the drift at which he aimeth? Another of his Inconveniences hereof is; that hereby a Bishop may (upon his own suspicion) supply the place of an Infourmer, a Witness, and a judge. That his own suspicion alone, will not serve to open way to such proceeding, is showed afore in the seventh Chapter. And how the Bishop being judge, should be used as a witness in the same cause, wherein he is a judge; there is no colour in all the law or practice, that I have known, or can imagine. Except it be in a matter done in his own presence, whiles he sits judicially; and appearing also notoriously unto others there besides himself; or espied only by himself. Now if the prejudice to the party be not very great, why the judge alone, aswell as any common person there, that might happen to have heard it or seen it, may not be trusted for a sound witness; I for my part can see no cause. Hath the Notegatherer never heard of a Cutpurse espied by the judge himself sitting on the bench, by him caused to be stayed, and being indited upon his relation, presently tried and condemned? For a third inconvenience hereof, he assigneth: that it is a means to draw causes from the Common law, when neither in the Citation nor Bill, men shall know the cause, why they be convented: and so are deprived of the means of suing a Prohibition at the Common law. This he termeth Addere forum foro. Yet enquiry by office prescribeth no such generality of Citation. And therefore if this were true, it maketh nothing against that proceeding. But that a Libel doth not contain the cause of the conventing, is a very strange, and no less bold assertion. If his meaning in this objection be, that a man cannot procure a Prohibition, till he have the copy of the Libel; thereby to show the temporal judge, that something is there in demand or prosecution, that is not of ecclesiastical Conisance: then he might more plainly have declared it. And for mine own opinion, hereunto I will agree, that (in most cases) the law is so; howsoever late practice be otherwise. For when the ecclesiastical judge denieth the copy of the Libel where he ought not, to the prejudice of the party, in this respect: then the statute of K. Hen. the 5. and a writ thereupon framed, doth relieve him. And denying copies of libels, needed not to 2. Hen. 5. ca 3. Register. pag. 58. have been complained of at that time as a grievance, if the law had been, that upon the parties own suggestion only, without sight of the Libel, the temporal Court might at pleasure award a Prohibition. So that this not expressing of cause in the Citation, and denying copy of the Libel, is so far from being a means to draw causes from the Common law unto those Courts; that it is of itself sufficient to bring thither by Prohibition causes originally being of ecclesiastical Conisance. But what serveth this not expressing of the cause of conventing, (if it were so) for condemnation of all proceeding by Office; seeing this might no less happen to be omitted, though the prosecution were at the instance of a party or Accuser? Yet further to satisfy both him and others herein; Citations in causes Criminal out of ordinary Courts, Letters missive, and Attachements out of Commission Courts, do all import, that there be misdemeanours of ecclesiastical Conisance, to be objected against the party convented. Albeit to express all the particulars, would be both over tedious and chargeable to the subject, and (in many respects) inconvenient besides. And why should this be accounted any more inconvenient or unreasonable, then write of sub poena out of the starchamber or Chancery are, which contain not so much particularity of the matters objected, as those Citations in ecclesiastical Courts? In the reign of K. Hen. the 8. there were contrary writings published betwixt S. German a common lawyer, and Sir Thomas More, about proceeding only against heresy ex officio mero; and without any of those allowed means precedent, which (by law) may open a way to such Enquirie. These reasons of Sir Thomas Mores, the Notegatherer assayeth summarily to answer; and I mind not to defend; further than I find them coincident with some by me used, and not fully answered by him. And the rather, because having not Sir Th. Moor's books in readiness with me, I cannot know how truly they be gathered: & for that proceeding of office against other crimes, & upon allowed grounds by law, may stand sound and good; though all that which Sir Thomas More defendeth in dealing against heresy (without Presentment, fame, etc.: especially where the penalty is so grievous) were to be condemned for unjust and unequal. Sir Thomas More in justification of such proceeding against heresy, allegeth the like course to be holden, in ministering of temporal justice, viz. that judges upon secret information, bind a man to his good abearing, and award out a Writ to inquire De gestu & fama, against any man whom they please: and that the Lord chancellor upon like secret information, putteth men out of Commission. For answer of these, the Notegatherer saith thus: But they do not without matter proved, put a man from his free-holde, or in danger of life, loss of goods, &c: as Ministers be deprived, and put from their freehold. By which his answer appeareth, that he yieldeth these objections (in fact) to be true: and the consequence cannot be denied For if the same course be just and reasonable in them; why should it be unreasonable in others? As for the grievousness of the penalty surmised to be in the one greater than in the other; this is not material to make it of just, unjust. For Magis & minus non variant speciem: more or less makes not things to be of divers kinds. And what will he say then, against that Criminal proceeding of Office, where neither life, free-holde, nor goods is called into question? Shall that then (in his judgement) be reasonable and just? Furthermore, what doth this particular recrimination hinder the conveniency of proceeding by office? For doth that course of proceeding teach or require, that men be punished without any matter proved? Therefore if this should happen so to be; yet is it only the personal fault of the men, and not of Law, which establisheth proceeding ex Officio. For though an Accuser should prosecute; yet the judges (if they were so ungodly minded) might (de facto) offer this unjustice. Yet this ought not to be any cause to condemn all proceeding by Accusation, to be unreasonable or unequal. But this is so far from any tolerable answer unto those objections: that it is (in truth) nothing else, than a very untrue and ●…anderous imputation, that will not, nay cannot be justified. What? Ministers deprived, yea put in danger of loss of life, or goods, without any matter proved? I cannot conjecture what further meaning herein he may have, otherwise then to slander: except perhaps he think, the Notorious wilful contumacy of those that refused sundry times upon their oaths to answer Articles objected on her majesties behalf (for matters of their own facts, or within their knowledges, and not touching either their lives or limbs) so far as by Law they were bound; not to be a matter sufficiently appearing and proved to the judges: whereas such their contumacy and contempt, evidently appeared to the honourable persons, judges, and other sage, prudent, and learned men, not only to be most untolerable; but was judged by them, to tend also unto the utter overthrow of the whole fundamental justice of this Realm, if it should be suffered. I do read in deed, 1 Inter epist. calvini in folio: pag. 421. & 422. that the Ministers of Geneva do in a letter of their own, written to the Ministers of Berne (against one Cumperell a Minister also of Geneva) testify no less of the Eldership there, then here is traduced. For because Cumperell 2 Two means to occasion Enquirie and examination of Office, even at Geneva. did not answer directly (as they thought) before the Consistory or Eldership unto their Interrogatories by them of mere Office ministered unto him (whereof two concerned his thoughts, and the very cogitations of his heart) so that they held him thereupon as convicted: and for that there were vehementia indicia, great presumptions, with a common fame, that he being ordained Minister for a parish in their territory, called Drallian, had nevertheless under hand sought to place himself in the territory of Berne (for this was his heinous fault whereof they then inquired:) Therefore the Consistory pronounced, Quòd erant iustae causae, cur Ministerio abdicaretur; that they were just causes to depose him from his ministery. So that albeit we have no such Law or practice in England (thanks be to God, whatsoever the Notegatherer saith) to condemn a man, without any matter proved: yet some other Churches (whom he & his Consorts do more admire, than their own) think they have warrant enough, even upon a fame and some tokens, to depose a minister, when they shall find that course meet to be used. Another reason in that behalf is alleged by Sir Th. More; that the Lords of the Counsel upon secret information call men of Office, without any prosecutor, unto examination of matters criminal. To which the Notegatherer answereth thus: viz. that this is, in matters concerning the state of the Prince and of the Realm; in matters of allegiance: and that a jesuite or seminary priest may be examined by oath, quia ipso facto a traitor. First, all the matters that their Lordships do, or may examine, are not of such high quality. And if they were, it is not the importance or hemousnes of the matter, that can make justice of that, which is Injustice in itself; as was touched by me afore. And so be also sundry matters dealt with, in some Courts Ecclesiastical nearly touching the state of the Prince and Realm. Besides, it is a very strange allegation to say, The jesuits or seminary Priests may be examined by oath, quia ipso facto traitors. As if all, or any traitors, might be examined by oath of their treasons; considering, that to examine the party by oath, of matters touching loss of his life, or limbs, is flat contrary to the Laws, policy, and custom of this Realm in both sorts of Courts: yea and perhaps contrary to divinity too, as the Treatisoure his own Comrade (though fight in the self same quarrel and following the same Colours) can and doth tell him. That which hath been said to these two last objections, may also serve to retoyne unto his reply, made against the objection, that the like course is used by Martial Law. But if this proceeding of office by Special enquiry be so reasonable and oftentimes necessary; how cometh it to pass (may some man ask) that the names of Inquisition and inquisitors be holden so odious? Admit those names be odious unto many: yet this (without further reason) may not serve to condemn the course itself. For many sorts of men be also odious, perhaps without any just desert or particular abuse in themselves, other then for their office sake, who are not therefore wholly to be rejected: as, Informers of concealments of penal statutes, Takers, Purveyors, bailiffs errand: yea and some administers of justice too, if they be any thing exact & severe therein. Neither is this odiousness general against all Inquisition whatsoever; but only against one particular course of proceeding thereby in the crime of heresy practised in some Popish dominions: but of all other most rigorously and cruelly in Spain; yea (as is supposed) far beyond their own Commission, that they have from the Pope: and yet their Commission is also in many points exorbitant from all Law and reason. A writer in the Civil Law assigneth a special cause of the hatefulness unto the Common people of the Spanish Inquisition for matters of heresy. 1 Albericus de Rosate. in rub. C. de haeret. nu. 6. Inquisitors of heresy (saith he) are hateful and suspected of all Laymen, because of a long time it hath been believed, that they are wont to proceed upon most light suspicions, especially against those that be rich. Nay in deed how can it be otherwise, seeing their dealing by that Inquisition is especially against men of greatest wealth; because upon their condemnation their goods and lands are confiscated to the house of Inquisition: that is, to the inquisitors themselves? Now seeing none of these strange courses be used in any Criminal proceeding in this Realm; there is therefore no just cause here, to make it hateful unto any. Yet the Treatiser doth imagine this kind of proceeding to be more frequent in Courts ecclesiastical within this Realm in respect of the judges own fees, thereby arising. For answer whereof: First in Courts of Commission Ecclesiastical (against which some have the greatest edge and eagerness) the Commissioners have no fees at all; no not so much as iiij. s. towards their charges, that justices of Peace be allowed by Statute, at such times as they serve at Sessions of the Peace, &c: whereas Commissioners are employed, and serve therein freely at their own charges, with loss of time and intermitting their own business, only of duty and conscience to her Majesty and to the Common weal. So that if it were not in this respect, the Commissioners ecclesiastical both might and would sit still, with more ease to themselves, and less obloquy; howbeit by the worst of every sort of Subjects. As for Courts of Ordinaries, I know some of the greatest of them in England, that have not two matters ex Officio mero prosecuted in them, in three years space. And for such ordinary Courts as have some more causes of that nature: alas, what great fee is it, for the judge ecclesiastical to have iij. pence for a Citation, or vj. pence for examination of a witness, or upon an act of Absolution, or such like; to make him desirous (in that respect) to entertain the cause; seeing he will hardly be excused with xx. pound charges (that every such several matter may put him unto) if an Appellation be brought upon any error or mistaking, that may happen to be found, in his proceed of Office? Besides that, the like fees are due to the judge, no less upon the prosecution of a party, than they be upon proceeding by office: and therefore none inconvenience hereupon more in the one course (which this opinion alloweth) then there is in the other. Yea, may some say, all prove not offenders, that be so called, and that are thereby put unto trouble and charges. It is true; yet meet to be called, if the law be observed in this point, that there must be (afore) a sufficient ground of inducement thereto. Neither do all those prove to be offenders, that are prosecuted by a party or by an Accuser; and thereby be put to no less charges and trouble, even when (besides the malice of the preferrer) there was no colourable ground of the accusation. The like may be also truly said of many others, who be called even before temporal judges and justices of the peace, either by warrant, writ, or otherwise. Yet is this no cause, hereupon wholly to disallow these conventing. And there is no more reason to find fault with the fees due unto the judges ecclesiastical, in regard that every one which happeneth to be convented, proveth not guilty of the matter imputed to him: then there ought to be with the fees, that are due to judges in temporal Courts for judicial or original writs etc. because many of such suits be commenced (as often falleth out in the end) without good matter on the Plaintiffs or Informers behalf. Thus much in answer to the objections made against the reasonableness, and conveniency of proceeding by Office. CHAP. XI. That the laws of the Realm do use Inquiries and proceed ex officio, and that they allow it in Courts Ecclesiastical, with answer to some objections that are made to the contrary. IN the next place I am to show, that dealing by way of enquiry or inquest, ex officio, without suit of a party; called by the Common law Office deal Court, are both mentioned and practised by the laws of the Realm. In 1 Mag. Charta. cap. 26. Magna Charta mention is made of a writ of Inquisition of life and member. In an old statute of king Edward the first, a severance is made betwixt the suit of the King from the suit of a party: and the King is thereby (as it were) bound to sue, and to lend his office, for prosecution of the misdemeanours. For it is 1 3. Ed. 1. cap. 13. thus provided, that if any take away a woman by force etc. the King at his suit that will sue, shall do common right within forty days: and if none commence his suit within forty days, the King shall sue. Which suit being in his own Court, and before himself, must needs be of office. For where there is Inquisitio, Enquirie, there the King is party: as by another statute of the same 2 Star. de Inquis. capiend. 33. Ed. 1. King's days appeareth: De Inquisitionibus coram justiciarijs quibuscunque capiendis, & in quibus D. Rex est pars qualitercunque concordatum est etc. In a statute of 3 18. Edw. 3. pro Clero. c. 2. king Edward the third, arraignment at the suit of the King (which is ex officio) as a distinct matter from that which is at the suit of a party, is spoken of: and so 4 42. Ed. 3. c. 4. are also Commissions of inquisition afterward. Furthermore in K. 5 8. H. 6. c. 16. Henry the sixth his time, en quest or inquisition of office is mentioned: and in sundry 6 11 H. 7. c. 25. & 1. H. 8 c. 12. statutes both after and afore, which are needless to be repeated. For (as I take the matter) every inditement is an Inquisition: which if it be at the prosecution of a party, it is, as officium promotum: but if it be by the judges, for the Queen (in respect of the interest of the Commonwealth) then is it officium merum or nobile, as afore is declared. This manner of dealing, in sundry cases is so usual at the Common law; that there be whole titles made in the Abridgements, touching Inquisition and office deal Court: viz. of inquiries and matters done by the judges upon their discretions, without the instance of any party. In reports at the Common law, we find it said, 7 M. 20. H. 6. 38. that judges ex officio did charge an inquest to make enquiry of their own collusion, supposed to be committed among them. 8 34. Edw. 3. 3. Further: One of a jury, that departed from his fellows after that he was sworn, was examined at his return by the judges ex officio, whether he had since spoken with the defendant or no? Likewise it is said, 9 11. H. 4. 17. that the Court ex officio ought to award an Assize to inquire (whether the disseisin were with force) by reason of the kings fine. In the book of 10 Assis. lib. 16. pag. 4. Assizes: 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, whereupon 11 Assis. lib. 27. pag. 138. inquest or inquisition ex officio in the King's bench is to be made. We find of elder time by 1 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 again there: Let the king ex officio suo, & for his peace proceed to inquisition, for the suspicion that he hath of the appeal. Moreover, where a Parson and Vicar were both willing enough to sue before the Temporal judges: yet 2 M. 22. Ed. 4. 23. the judges finding the plea to be of Ecclesiastical jurisdiction, did ex officio, at no man's instance, dismiss it out of that court, as not pertaining to their jurisdiction. And do we not often see the ordinary course for inditements, much assisted and helped by the judges and justices search, examinations and dealing therein, (of office and duty only) both in treasons & felonies, and in other causes of more private interest, that be preferred by others? do they not also upon their own discretion, & for causes known to themselves, without prosecution of any party, (and so ex officio only) often times commit persons of suspected behaviour to prison; and not dismiss them, till by a writ of enquiry de bono gestu & fama, they be found worthy to be set at liberty? So that by these few, and sundry other that might be brought, it may appear; that proceeding and enquiry ex officio, is so far from being, so much as a divers course from the laws of the Realm, that it is often practised thereby, when no party besides the judges themselves, do intermeddle. But it is not only by that law practised, but also allowed (by it) for a lawful course of proceeding in Ecclesiastical Courts against crimes and offences. By a statute of 3 2. H. 5. cap. 1. Henry the fift, such an Inquisition of Hospitals of the King's foundation, is appointed unto Ordinaries: and in those that be of any other man's foundation, Ordinaries are authorised not only to inquire of the foundation, estate, and governance of them, and of all other matters necessary in that behalf, but also to make thereof correction & reformation, after the laws of holy Church, as to them belongeth. So that if Ecclesiastical laws do warrant this enquiry and course of reformation and correction, than this statute will give force unto it. By 4 1. H. 7. cap. 4. another statute: If any Clerks be convicted of incontinent living in their bodies (being but afore perhaps openly noised thereof) before whom convicted? afore Ordinaries. How? by examination, & other lawful proof requisite by the law of the Church, they may by the Ordinary, at his discretion, be committed to ward. Which together with the committing, must needs be both done ex officio: for that no party to prosecute is there mentioned to be required; and because the Ordinary thereby may proceed, upon the public infamy noised abroad. The statute of 1 23. H. 8. ca 9 Citations made afterward, mentioneth a case where an inferior Ordinary may be party to a suit holden afore him: which may aswell be understood in a cause moved of Office for an offence, as in any other matter. But more plainly afterward: for there the very word ex Officio is used; and it is provided, that the forfeiture of that statute, for calling a man out of the jurisdiction where he dwelleth, shall run against him that cited, whether he proceed by virtue of his office, or at the suit of any person. Whereof may be gathered, that the laws of the Realm take knowledge of that course ex officio to be as warrantable as the other, made at the suit of a party: so that other requisites be observed. And though the statute against Heresy stand 2 27. H. 8. ca 10 now repealed, yet it may serve to prove, that not only inquiry, but examination also of the party himself, in a visitation by Ordinaries (both which are done ex officio) is holden for a course of the law ecclesiastical not to be condemned or disallowed by the laws of the Realm. In a statute touching 3 1. Ed. 6. cap. 2. Ordinaries seals now also repealed, certain ecclesiastical causes be rehearsed: among which, causes of instance betwixt party and party, are plainly severed & distinguished from causes of correction: thereby giving us to understand also, how rarely causes of correction be prosecuted by any party; but by the judge ecclesiastical himself alone proceeding of Office. And 4 1. Eliz. cap. 2. by a statute in the first year of her majesties reign, made for uniformity of Common prayer, Ordinaries are authorised to inquire and to punish etc. the violation of that act, as heretofore hath been used in like cases, by the Queen's ecclesiastical laws. But that an inquiry is always of office, and what the laws ecclesiastical be in this behalf, and how the continual use hath been, is showed afore: so that none need remain doubtful in these points. The very Common law not only taketh knowledge of this course holden in Courts ecclesiastical: but in some respect doth also privilege it, even above the proceeding by a party. 1 7. H. 4. 18. For if an Ordinary do sequester goods of the dead for any contumacy, or ex Officio; which giveth no possession to him, the court spiritual (in this case) shall have jurisdiction. And it seemeth by that case, the law to be otherwise, when it is at the suit of a Party. So in a case 2 M. 20. E. 4. 10. of violent hands laid upon a Clerk, both Brian and Litleton held (no man gain saying of it) that the spiritual court may punish it ex officio, but not at the suit of the party: lest the cannoneer thereby be kept from his absolution, till some temporal duty be contented and paid. And Mordant 3 T. 12. H. 7. sol. 22. was of opinion; that if a man be sued by a party pro laesione fidei in not paying a sum of money promised, there shall lie a Prohibition: yet if the judge ecclesiastical shall do it ex officio, that then no Prohibition shall lie. Neither doth any gain say him herein. Unto which opinion of his, another judgement given in the 4 Assis. lib. 22. pag. 70. book of Assizes in like case, seemeth to accord. To like effect also 5 Fitzh. nou. nat. breu. tit. Consultation, fol. 50. etc. Fitzherbert reporteth, that an Ordinary 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 maintain a Curate or Chaplain: and for fornication or like offences. Fitzherbert 6 Nou. nat. br. pag. 64. E. in another place also thus writeth: If a man (saith he) be sued in court Christian, or if the bishop sue and cite him ex Officio and excommunicate him, etc. And again 7 Ibid. litera F. thus: Significavit lieth not, but where the party is excommunicate by name, maiori excommunicatione: upon a spectall suit against him ex Officio, or by a party: therefore both are alike lawful, and allowable by the common law. And that for wrongful detaining of tithes in time of vacation of a benefice, the ecclesiastical judge may cite and proceed ex Officio, doth plainly appear even by 8 Liberties of the Clergy, out of the laws of the realm, by john Gooddall. Printed by Rob. wire. one of those books which the Note gatherer doth allege against this course; though (in truth) it have no one word tending that way. Belike he thought no man had the book but himself; because (it may be) he casually happened upon it in rifling amongst other old books cast aside in some Stationer's shop. To like effect the same book hath; that 9 Ibid. if a man bequeath a bullock to a church for reparation of it, or of the churchyard: if he that hath him will not deliver him, either the Churchwardens may sue for such detinue in a court ecclesiastical, or the Ordinary may ex Officio call him, and urge him to delivery. And the like is there testified (being taken out of the Register) in a more grievous crime of ecclesiastical cognisance. For (saith he) 1 Ibid. ex Regist. in br. orig. pag. 45. a. if the judge ecclesiastical cite a man of office for fornication, etc. & a prohibition or appeal being brought, he after renounceth all delays, and submitteth himself: the judge shall proceed ad poenam Canonicam imponendam, upon a consultation or writ unto him to be directed. Likewise the Register is very plentiful in this behalf; as first where 2 Berous in rubr. de accusationibus, nu. 10. Enquirie (which is always ex officio) is not only allowed, but commanded to be made by a judge ecclesiastical: 3 Register, pag. 54 b. Uobis mandamus, quòd habita super praemissis per Inquisitionem & alios modos informatione pleniori, etc. and for the very word of proceeding ex officio: as where it was written unto the Official of the court of Canterbury or his Commissary thus: 4 Register. pag. 57 b. Cum vos nuper ex Officio vestro, fama publica referent, quod T. etc. vestrae jurisdictionis C. in amplexibus fornicarijs tenet, ipsam coram vobis in curia christianitatis pro correctione animae suae in hac part citari feceritis, procedentes contra eum (ibidem) juxta Canonicas sanctiones, etc. vobis significamus, quòd in causis praedictis, ex officio vestro, quatenus ad correctionem animae, etc. procedere & facere poteritis, quod ad officium vestrum speciale de iure noveritis pertinere, etc. Likewise in another Consultation it is contained thus: viz. Cum vos 5 Register. pag. 57 a. nuper (ut acce●…imus) juxta officij vestri debitum obieceritis joanni de E. parochiano de C. quòd ipse, etc. detinet, etc. vobis significamus quòd in causa praedicta quatenus adrestitutionem, etc. & ad poenam canonicam eidem I. pro detentione eorundem legatorum imponendam coram vobis agitur licite procedere etc. poteritis. And again thus: Cumper 6 Register. pag. 54 b. vos contra H. de Lyndesey Notarium publicum super 7 Vide 3. part. c. fornicationis crimine infra jurisdictionem vestram commisso graviter infamatum, tum super dicto crimine, quam super eo quòd jurisdictionem vestram per tumultum & rixas, executionésque vestras in hac part debitè faciendas nequiter impedivit, ex officio ad animae suae correctionem fuisset processum, etc. vobis significamus, etc. quod procedere poteritis. Mention is also there made in a precedent of a Consultation, of proceeding 8 Register. pag. 51. b. ex officio ad promotionem parochianorum, in these words: Cum ex officio ad promotionem dictorum parochianorum, traxeritis in placitum, etc. vobis significamus, quòd procedere poteritis, etc. Furthermore, there is mention made of one, who by that course was proceeded lawfully with, for refusing to pay his usual oblations, to be confessed to the Priest, and to receive the Communion, in these words: 1 Register. pag. 50. b. cum ipsum ex Officio vestro coram vobis ex causis praemissis evocari feceritis, ad procedendum contra eum, ad poenam corporalem sibi pro correctione animae suae in hac part infligendam, etc. vobis significamus, quòd in dicto placito, sic coram vobis ex Officio vestro, moto; procedere & ulterius facere poteritis in curia Christianitatis, quod ad vos, & ad forum ecclesiasticum noveritis pertinere, prohibition nostra non obstante. And upon a prohibition brought by a knight to his Ordinary, that proceeded ex Officio against him, for certain his crimes and excesses; a Consultation was 2 Register. pag. 44. b. granted: the words of the Register are these: Cum vos nuper ad corrigendum crimina & excessus subditorum vestrorum juxta Officij vestri debitum procedentes, R. de C. militi obieceritis, etc. The like consultation is there found against a Chaplain proceeded with ex Officio for fornication; that had also brought a prohibition. The words 3 Reg. pag. 45. a. of the Writ unto the Ordinary be these, videlicet, Cum vos T. de W. capellano, ex Officij vestri debito obieceritis, quòd ipse carnaliter cognovit, etc. in animae suae periculum & scandalum aliorum, unde contra eundem ad correctionem animae, etc. As in other consultations there, after prohibitions (upon untrue suggestions) had been purchased. An example is also 4 Reg. pag. 51. a. there of allowing (by Consultation) of proceeding ex Officio; to the end of enjoining corporal punishment; against one that laid violent hands upon a Clerk; whereby he incurreth (saith the Writ) excommunication ipso facto. Likewise an 5 Reg. pag. 51. b. & 52. a. Ordinaries proceeding ex. Officio, to the interdicting of a Church, and to the inflicting of other Canonical pains for withholding and not finding of a Chaplain or Curate to serve, (according to an ordination or real composition thereof made) is there approved lawful by Consultation granted. And so is the like proceeding of Office allowed for 6 Reg. pag. 51. a. tithes withholden, falling due to the Bishop and Archdeacon in the time of vacation of the benefice; for by the law and custom then, in 1 Changed by the statute, 28. H. 8. most Dioecesses of this realm, tithes of vacant benefices were due to them. In the writ of Consultation alleged afore out of the 57 page of the Register for allowing proceeding ex Officio against a fornicator: it is 2 Reg. pag. 57 B. also contained; that the party before prohibition by him brought, had submitted himself: for which cause of the parties violating his own submission, and for his contempt mandatorum sibi factorum: the Ordinary is authorized and warranted to deal against him, (as afore he had begun) ex officio. By all which may appear, both the practice of Inquisition, and proceeding ex officio in some cases by the laws of the Realm, and the allowance also by those laws, of such course holden in courts ecclesiastical both in offences and in other causes also, that be neither testamentary nor matrimonial. But it may perhaps be said, that great abuse may hereupon follow, if the judge list to vex a man wrongfully: for he may pretend strong Evidence and Information or a common fame to be against a man, or such like afore showed, whereof he is credibly advertised. Well, if it be but so much, that the ecclesiastical judge (when he is called by his superior) must be able to make proof of some such: it is more than a judge or justice of Peace need show, why he calleth any man into question, or bindeth him to the peace, or to the good behaviour. And what laws can be devised, but they may be abused? whatsoever hath an use, hath also an abuse, saving virtue, saith 3 Aristot. in Rhetoric. Aristotle. Yet if he be an Ordinary (as hath been aforeshowed) such grounds of his proceeding must appear in Acts judiciallie, or be well proved: or else (upon an Appellation) his proceeding is to be reformed. Besides, is it not more probable that a Party which will accuse, shall do it of malice to vex oftentimes an innocent, and to bring him into peril; then a judge who reapeth no commodity thereby, but satisfaction of his duty? and is not he more like to deal in these causes with sincerity, then quilibet è vulgo? yet by this opinion, such are permitted to accuse and to prefer matter against any, though no fame nor other matter, no not so much as suspicion do appear against them. Is it not then all one, whether the innocent man be wrongfully vexed by the judge, or by a private person, who (in a manner) professeth, that he doth it of malice? nevertheless for all this inconvenience and abuse that may happen, it will not be thought convenient (I trust) to dam up the way from every man both judge & party, to prefer suits against offenders. For if it should so be, in short time there would be neither judge nor other, but lewd persons only; and they might live as they list. Yea, but it seemeth unreasonable (will some man say) that a man should be called into question and not to know his Accuser. Surely 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 known, yet there be many weighty and very considerable causes, why even witnesses in cause of heresy: and much less those that gave the information, should not be known; which every man of himself, without rehearsal, can weigh and call to mind. Besides, this objection maketh nothing against all proceeding ex officio. For when it is grounded and instituted upon a Presentment by officers specially appointed, their names are known to him whose process is made. Yet I must tell you, that hereby it cometh oft times to pass, that mean men in parishes abroad, and for very foul crimes, do rather make choice to be bold with their oath and conscience, then with a delinquent, whom they have some occasion to fear. But (I pray) what necessity is there (in justice) of knowing the Relatours? may not a jury indite a man without any cause openly appearing, as when the matter is either known to some of them aforehand, or the Evidence (as some times happeneth) is not given openly? which cases happening; the party indited shall never know who gave the information, because they are sworn to keep secret the Queens, their own, & their fellows counsel. Which course for the trouble of the party supposed to be delinquent, doth amount to as much, as if the judge ex officio mero had done it. When the Lords of the Counsel have a supposed malefactor in examination, are they bound in justice, or were it but good policy to signify unto him, who it is that gives the information; and to confront them together at first dash? but howsoever these (by circumstances) should be thought fit to be carried, it is neither to nor fro, to the condemnation of all proceeding upon the office of the judges only, as unjust, whether a man know or be ignorant, who made the Denunciation. CHAP. XII. A Reply to the Notegatherers answers, given to certain reasons that have been made long agone, for to show the like course to be also practised in temporal courts: and an answer to his reasons brought to prove, that in proceeding of Office, there is some contrariety to the laws of England. SIr Thomas More in his aforesaid Treatises (to show that it is not simply unjust, upon some occasion to conceal the names of those that gave the information) allegeth, that in like sort at the Common law a man may be indited, & none evidence openly given at the bar: and that the enditers be bound to keep the king's counsel close. To this the Notegatherer answereth; first that before the party answer, or be arraigned, he knoweth the matter wherewith he is charged. So doth he also in ecclesiastical courts, so soon as the matter is objected unto him. Secondly, that the indictment goeth to particular matter, & it must be certain. And so do articles also in a court ecclesiastical. Thirdly, that they which indite him, shall not be judges of him nor arraign him. No more shall they who present or denounce a man to an ecclesiastical judge, be judges of him: and therefore (whatsoever the Notegatherer say to the contrary) it is not aliter ex officio. Fourthly, that judges in such a case are to proceed circumspectly. And so must they do in other cases as well as this: and so must ecclesiastical judges also. fiftly, that two witnesses must be at the arraignment, unless the party willingly confess the same. And so it is in courts ecclesiastical. For without the party's confession, or two witnesses; none may be absolutely convicted. And yet this which he here saith, is not general in all arraignments. For the statute 1 1. Edw. 6. c. 12. made the 1. year of K. Edward the 6. (which hereunto he voucheth) mentioneth to this purpose only treason and misprision thereof. The said statute is also repealed since by Q. Mary. The other statute 2 1 & 2. Ph. & Mar. cap. 10. 1 & 2. of Philip & Mary, that he allegeth, is only for such trial of treasons, that be made treasons by that Act. For the self same Act doth appoint, all other trials of treason to be made according to the due order & course of the Common laws. But though it were so, that at all trials two witnesses should of necessity be present: & though it were admitted, that his other four answers were true in fact, & that the courses of proceed ecclesiastical were to the contrary: yet these do not any way impugn or overthrow sir Th. Moor's reason, viz. that men may be indited, & not know who gave the evidence or preferred it; in like sort as some know not who preferred up matter of crime against them into courts ecclesiastical, and therefore this must needs be wholly impertinent, and besides the purpose. Unto another reason of sir Th. Mores (grounded also upon resemblance of the practice at the Common law, unto the ecclesiastical in this behalf) viz. that a man may be at that law arrested and imprisoned, only upon 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 action of false imprisonment. What? If an offence appear to be done, shall this be sufficient (without all peril) to ground a suspicion against any man whomsoever, that it was he which did it, & so to imprison him? Neither yet is it general, that a fact must be precedent, before a man be arrested. For if it be a fact of such quality & nature as leaveth traces & signs after it; as murder, Coining, and such like, which be called by Civilians, facta permanentia; in them it is true that a fact must be precedent. But in such facts, as leave no such traces behind them, so that it is not certain whether they be committed at all or not, & yet probabilities thereof do appear (as of speeches, secret treaties of conspiracy & treason:) for such facts a suspected party may be arrested and imprisoned, though it be not assuredly known, whether the fact be committed at all, or not. And these are called facta transeuntia. Nevertheless, this is not in any sort, an answer unto sir Th. Moor's reason. For admit that a fact must always be precedent: never the later this remaineth true, that a justices only suspicion may serve to arrest and imprison a man. And yet the law ecclesiastical (for which More reasoneth) doth in truth require stronger grounds for enquitie special, them the judges only suspicion, as is afore at large in this second part declared. The Notegatherers later answer unto that reason of Mores is; that a felony or murder being done, and a fact manifest, the party apprehended and suspected, knoweth that he is to answer that fact, and not other byways, as is used in the ecclesiastical proceed. Truly, of all that ever I heard, these answers be byways, and besides all way too, of any reasonable answering objections. It may be that the party himself (especially if he be not guilty) knoweth not (till he be asked) the very particular cause of his apprehension. But it will be said, that upon his examination, he learneth what it is. Why sir, and so do all that be convented in courts ecclesiastical know by their examination, the matter objected. Then where is the difference and the by-way that this man so talketh of? But will you see his clerkly vain of reasoning herein? For it is, as if he had gathered it thus: viz. A man arrested, knoweth that he is to answer a fact which is committed: Ergo, Albeit at the common law a man may be arrested upon suspicion: yet proceeding ex Officio is unlawful, how good grounds soever there be for it, far sounder than suspicion. For another inconvenience of proceeding by office, importing with all a Contrariety to the laws of the Realm, the Notegatherer assigneth; that thereby the Accessary may be punished, and the principal may escape; which is contrary to the Common law. The consequence hereof he goeth about to prove thus: For that (as he saith) the Principal may (in those courts) be an Informer and a witness both against the Accessary. By which saying, his slender skill or experience in those laws appeareth. For it is most notorious, that there is no better nor more usual challenge & exception against an Informer or witness; then to allege quod est particeps vel socius criminis praetensi. Albeit even at the Common law, we usually see partakers and complices in coining, in other kinds of treason, and for sundry heinous crimes (especially which are secretly contrived) to be admitted to appeach and to be witnesses, and to give evidence against others their partners. He affirmeth also, but maketh no show of proof thereof; that hereby the two jurisdictions be confounded; and that proceeding of office is derogatory to the laws, liberties, and customs of England. In which respect, it is sufficient that these be as easily by us denied, as they be barely, boldly, and untruly by him avouched. He further allegeth in three places (as if it were a matter very considerable) out of Hall, and the Acts 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 Heresy, 1. H. 4. the statute ex officio, as if it had been unknown before. First, that very statute 1 1. Eliz. cap. 1. itself of H. 8. standeth repealed. Secondly, it is very untrue, that it did at any time repeal proceeding of Office. For it doth not so much, as once mention it. And therefore what any writers do name the said statute of H. 4. thereby repealed, as I have not sought, so is it not material; seeing they misunderstand it, if they so write. Yea, the Notegatherer himself yieldeth, that the said statute of K. H. 8. doth establish proceeding of Office, if he understand what himself writeth. For it doth appoint (and so he allegeth it) that from thenceforth proceed against Heretics should be upon accusation or presentment. If upon Presentment, then of consequence by the judges Office. For so all laws testify; and Presenters be not Accusers or parties. For they are severed & counterdivided even in that very place, one against the other. The principal drift of that statute of K. H. 8. was to provide, that an Ordinary upon his own only suspicion should not call men into the dangerous question of heresy, as (it seemeth) was afore used by some of them upon colour of that statute 1. H. 4. and therefore there repealed. The next statute, which to the same purpose he quoteth, 2 31. H. 8. ca 14. is so far from impugning proceeding of Office; that for grounding proceeding ecclesiastical even in the crime of heresy, it provideth beside Accusation and Presentment, not only information by two witnesses; but also enquiry, and that is always of Office. But do not these men draw near the lees, when they are driven thus to allege the statute of Six Articles (being also repealed) against proceeding of Office? I had thought their courage in the pretended cause of sincerity, had been so great; that they would rather have quit the place, with loss of their cause, than once to have borrowed so much as the shadow of a weapon, out of that store house. Against this course the Notegatherer also allegeth certain books printed in king Henry the eights days Come privilegio. These he termeth to be the manner of debating that cause in those days. The first was made by S. German (as it is thought) and is entitled, The division of the spirituality and Temporalty: with his reply against Sir Thomas Moor, entitled Salem and Bizance. The next, concerning the power of the clergy and laws of the Realm. The third entitled, Of the liberties of the clergy collected out of the laws of the Realm by john Goodall, and printed by Robert wire, but without privilege. And the last, Marsilij Patavini Defensor Pacis in English, with the Kings and her majesties mother's arms; which (belike) he mentioneth, that they may stand in stead of privilege. But will you see, what great and strong debating there was of this matter, by the said four books? Truly, saving in the first of them, there is not a word mentioned against proceeding of Office. And in Goodalles' book, by sundry places thereof (as is elsewhere in this Apology alleged) this kind of proceeding is plainly avouched to be a Liberty of the Clergy, given unto them by the laws of the Realm. And all that is said in that one book 1 Of division betwixt the temporalty and spirituality. cap. 7. and one only place thereof, is no more but thus, word by word; viz. Another cause of division, for that divers suits have been taken ex officio; so that the parties have not known, who have accused them: and thereupon they have been caused to abjure in cause of heresy, sometime to do penance, and to pay great sums of money for redeeming. Which vexation they thought came by the judges and the Officers. Therefore the fault that he then found, was not the very proceeding of Office; but for that it was handled in such sort, that the party knew not who gave the information, which he calleth Accusing; and for that it was in cause of heresy: being a crime of far more important danger to the party, than any other offence Ecclesiastical: yet not challenging the very proceeding thereby for unlawful, but as being (with such circumstances) some cause of division between the two states, as he surmised. The soundness of which judgement I mind not here to examine. The Notegatherer urgeth further, that the Popish bishops were deprived in king Edward the sixth his time, by Accusation or Presentment; though (as it seemeth) he knoweth not by whether of them. But what if they at that time had been proceeded with otherwise then of Office? Would this prove all proceeding of Office to be contrary to the laws of England; which is his drift and purpose? Yet I have often showed afore, that Presentment is a preparatory course peculiar only to proceeding by special enquiry of office. But for plain proof in fact, that they were in deed proceeded with ex officio judicum; I refer me to the acts judicial of their deprivation yet remaining, and to that also which I have written in a certain chapter of the third part of this book. Hear it will not be unseasonable to admonish the Reader once for all of a palpable 1 Advertisement of an error. mistaking both of the Notegatherer and Treatisour in a material point; who by the whole course of their writings and titles of their books, seem to imagine, proceeding ex Officio to signify nothing else, than ministering of an oath to the suspected party in a cause criminal: Whereas (in very truth) there may be some proceeding of Office, though that oath be not at all urged or used; yea and where it ought not to be imposed, though it were urged. Like as on the contrary side, there may be proceeding even by way of Accusation, where the oath may and aught to be exacted for the party's purgation: perhaps burdened by great probabilities, yet not being so pregnant, as to convict him. And therefore without all colour of reason, and ignorantly do they and some others (as the late Petitioner to her Majesty) confound proceeding of Office, with ministering of an oath, being but one Act thereof: which is in deed sometimes, but not always, no; nor yet alonely used in that course of proceeding. Nevertheless, taking it whether way they lust, the said Popish bishops were in truth proceeded with of Office, though denounced by certain, and (as is expressly set down of some of them) were urged, and did answer the Articles objected upon their corporal oaths; which (by law) they needed not, and therefore (as it is likely) would not have done, if the Denunciatours had been parties. To prove this course to be against law, he allegeth also out of a book made 2 Defence of Priests marriages. pag. 175. by D. Parker sometime Archbishop of Canterbury these words: viz. The very front of her Grace's articles (meaning Queen Marie) chargeth the ecclesiastical Ordinaries to put in execution the Canons and Ecclesiastical laws, none other but such, as were used in the time of king Henry the eight. And commandeth also moreover, that those should no further be put in execution, but as they may stand with the laws and statutes of the land. What then? Ergo, all proceeding of Office (though continually practised in sundry matters in both their reigns, without contradiction) is contrary to the Laws of the Realm? Truly, if there be one method of sound reasoning (as Ramus holdeth concerning teaching of Arts) I would be sorry this kind of disputing should be it. For I have not been taught, nor shall ever learn (I think) either to reason thus, or to put such Enthymemata into true Syllogisms; viz. Such Canons only were then to be put in execution, as might stand with the laws of the Realm. Ergo, proceeding of Office is contrary to the laws of the Realm. His last allegation (falling into this place to be discussed) that he bringeth in maimed also, to prove this proceeding to be against the laws of England, is out of one of her majesties Injunctions, 1 Injunction. 50. Against slanderous and infamous words, which is thus verbatim: viz. Her Majesty straightly commandeth all manner her subjects, to forbear all vain and contentious disputations in matters of religion: and not to use in despite or rebuke of any person, these convicious words, Papist or Papistical heretic, Schismatic, or sacramentary; or any such like words of reproach: But if any manner of person shall deserve the accusation of any such; that first he be charitably admonished thereof: and if that shall not amend him, then to denounce the offender to the Ordinary, or to some higher power, having authority to correct the same. But what (I pray) can be gathered hereof, more than a care to retain private persons in a charitable course, one towards another, without reproachful words, upon any differences of opinions? Or doth this reach to the abrogating of any course of proceeding? Nay, rather it doth establish it, seeing upon Denunciation (which is here mentioned) proceeding of Office may be grounded, but not Accusation. But the Treatiser saith that hereby the same man is judge and Accuser: which is contrary to the policy of this Realm, that suffereth not an Accusor to be a witness, nor an Enditour to be a juror for trial of the fact. I answer, that the first is untrue. For that which openeth way to the judges Enquirie is holden (by Law) as the accuser, and not the judge. Touching the second, I have showed out of statutes, that witnesses be called accusers: therefore that is not contrary to the policy of the Realm: and yet is it contrary to Civil and Canon Laws. For the third; if his reason a simili be good, then is the juror as a judge, and the Enditour as an accuser. And in deed what do their affections differ? and yet what more frequent then for an Enditour to give in evidence upon his oath; or for one jurour upon his own knowledge, to get an inditement found? Therefore for a witness, to be a kind of accuser; and an accuser to be a kind of judge, is not contrary to the policy of this Realm. Hitherto in answer of allegations, and objections made against proceeding of Office, and brought for proof of some contrariety, unto the Laws of the Realm. CHAP. XIII. That the Enquirie ex Officio against Crimes, is allowed both in Civil or Temporal Courts and in Ecclesiastical also, by the two laws Canon and Civil. TO prove that the Canon and Civil laws both, do allow of the course, I shall not need to stand long: because so much hath by the way very often, (though hitherto not of purpose) been declared. To allege therefore for the former once for all, it is the 1 Archid. in c. foelicis §. sin. de pactis in 6. & Marianus in c. qualiter & quando. de accus. nu. 108. common opinion, that by the Canons, judges Ecclesiastical may indifferently in every Crime being within their jurisdiction, proceed ex Officio, for the common benefit. And (as was upon another occasion alleged afore) 2 Abb. in c. 1. de officio Ordinarii. when the Enquirie is made to the purpose of correcting for the soul's health, and not of punishing, the judge may proceed ex Officio, though no fame were precedent. And again; 3 Angel. in §. fin. Auth. quom. oport. epis. when an Enquirie is made of any Crime committed against the Majesty of God, as heresy, blasphemy, etc. the enquiry is of validity, though it be without the solemnities of place, time, etc. By the Civil Law it is so allowed of, as it is called a proceeding per Nobile judicis Officium. In the old Common weal of Rome, what was more usual with their great Magistrates then habere quaestionem, to make special inquiries and trials of supposed offenders? one 1 Livius lib. 39 or two in stead of many may suffice. L. Posthumius the Praetour had Tarentum assigned unto him for his Province; and there he made severe Inquisition against such Shepherds that had conspired and linked themselves together, and made all High ways and Commons (by their robberies) most dangerous to be passed. Of which sort of persons he thereupon condemned seven thousand. Those Magistrates that 2 L. 12. ff. de peric. rei vend. l. 14 ff locati. l. 12. ff. de decurion bus. were called Aediles, had authority by their Office upon a summary knowledge had of the cause (such as is used in Pie-powder Courts here) to break all unlawful measures, to overthrow, destroy, and mar false and corrupted wares, and to punish those that offered them to sale: yea and sometimes also to beat with rods. This proceeding was so well known to all in those times, that Tertullian an ancient father of the Church doth put the Emperors to whom he writes, in mind of their own laws, whereof he there urgeth 3 Tertullian. in Apolog. ca 2. execution. If I be not deceived (saith he) the Civil Laws do command, that malefactors be sought up and found out; and not to be concealed, etc. This is appointed by the decrees of the Senate, by the Ordinances of Emperors, and by the very Empire itself; whose ministers you are. And again 4 Tertullian. ibid. c. 4. in another place thus: Nulla lex vetat discuti, quod prohibet admitti. Whatsoever any Law forbids to be done, assuredly it permits to be sought out, & sifted. Let us see (saith the 5 L. 3. §. Praeterea. ff. desuspect. tutoribus. Civil Law) whether a Garden of an infant that is suspected, may be removed from his Gardeinship without any accusation. and it is received that he ought to be, if by evident tokens it appear to the Praetour, that such a Tutor is to be suspected. And albeit the 6 Gloss. in l. 2. §. si publico. ff. de adult. gloss say, that ordinarily (by that Law) the judge proceedeth not ex Officio: yet by reason of the straight course holden thereby with all accusers, so that Accusation is now almost generally through the world grown in disuse: it is therefore by 7 Gandinus de malefic. tit. quomodo cognos. nu. 6. & passim alii. such general custom made lawful in every cause, for a judge to proceed (at the Civil Law) ex Officio. So that (considering such 8 Bald. in l. 1. §. in initio. ff. de office praesidis. custom) it is as ordinary a remedy now, as Accusation. And some reason hereof is assigned to be this, that the Law judgeth even an accuser not to be wanting in such proceeding, for that 1 Prae. Millei. fol. 3. nu. 31. in every Crime, Fiscus est Accusator, the common interest is the accuser: and it is so far from being a course disallowed by that Law, that 2 Angel. de malef. ver. haec est quaedam. & ibi Aug. in addit. a. nu. 12. usque ad 48. (albeit there were no such custom at all) yet there be very many cases, wherein by the very express disposition of that law, the judge may proceed ex Officio. Nay it is thus testified by a great Lawyer, that 3 Io. Andr. in add. Specul. tit. de Inquisitione. §. quando autem. in any case whatsoever even by the Civil law, it is permitted to the judge to proceed of Office, and so by way of Enquirie. And this is received, not only in public and popular misdemeanours, but also in private offences. For 4 Decius cons. 170. nu. 1. quòd est communis opinio. in these (without either complaint or Accusation) the judge may proceed of Office by way of Enquirie. Albeit the Law set not down for such, any certain (either corporal or pecuniary) penalty; for then such an offender is punishable, by some extraordinary penalty. The reason of this proceeding in private Crimes is, the very interest, that the Common wealth hath, to have such offences punished. By reason of which common interest, 5 Bald. in l. 1. C. qui accusare non possunt. even where there is an Accuser, yet if he be away, the judge ex Officio may proceed and go on in the cause. And so it is observed by common practice, in Civil law Courts. The like is to be said when the party will collude with the 6 Bartolus in l. inter omnes §. rectè ff. de furtis. malefactor: for if he that was rob will collude with the thief, and say he was not rob: yet if there be likelihood to the contrary, the party is not believed, but the judge proceedeth ex Officio, quia interest Reipub. puniri furtum. Touching the penalty due, upon such proceeding, some writers hold, that 7 D D. in c. qualiter. el. 2. de accus. the ordinary pain appointed by Law, is not to be inflicted upon proceeding of Office. But they also make these exceptions: viz. that this doth not hold, 8 Innoc in d. ca where the Crime is notorious: nor 9 Card. Alexand. in c. de accusat. col. 39 where the defendant upon the enquiry confesseth the Crime: nor by the 10 Plerique omnes D D. course of the Civil Law. For in these cases they affirm that the very ordinary pain (expressed in the Law) may be imposed. But it is assured, 11 Clarus lib. 5. § fin. qu. 49. that by Custom at both these Laws not only a milder pain, but the very set pain of Law itself may be inflicted, even when a judge hath proceeded of Office. But here some may object, that those Laws do seem sometimes to require an Accuser. It is true: but neither always, nor of necessity, as hath been opened. And it is showed afore, that public interest stands in steed of an Accuser. Likewise the 1 c. qualiter & quando cl. 2. de accusat. Law accounteth fame precedent to be a kind of Accuser. And where fame wanteth, other 2 Bartol. in l. congruit. ff. de Off. praesidis. presumptions, and Indicia or evidences are (in this behalf) equivalent unto a fame. It may further perhaps be urged, that by Civil law, this Enquirie ex officio, is counted an extraordinary remedy. If it were so admitted to be, what would this avail those, that oppugn 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 party will seriously and with effect prosecute, but that the Ordinary judge will cease further to deal therein, ex officio: yet it is a little afore signified, that by reason of such general custom, this Enquirie ex officio, is become, even by the Civil Law, to be an Ordinary remedy. And besides that custom, wheresoever 3 Specul. Marran. de Inquisit. nu. 39 Enquirie of office is specially permitted either by Law (as in many cases) or by statute, there it is as ordinary a remedy as Accusation. And by the 4 Ibid. nu. 48. Canon Law, it is absolutely an ordinary remedy. I have also heard it to have been objected against this course, that bad and infamous persons suggestions have been accepted. If it be so, it is but the fault of persons, not of the Law. And if by an Appellation from any ordinary Court, this point come to hammering; it will not be found absolutely justifiable. yet experience teacheth, that not only Relatours (that be infamous and bad persons) be in some cases admitted by the Laws of this Realm, 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 favour of the Prince and common wealth, in detestation of such grievous crimes, and for the very nature of the crimes, which are (for the most part) so performed; as none honest persons, but such as themselves, are or can be privy unto them. Upon the same grounds, the Civil Law also admitteth the like witnesses. Therefore is it testified to be 4 Decius consilio 342. nu. 8. the common opinion of writers in that Law, that for the horribleness of some crimes, witnesses otherwise disabled in Law, may be received, as in here sie and in Treason. Also when the truth of the matter cannot otherwise be had: therefore the rule is, that when the fact is of such quality, that other witnesses cannot by any possibility be had, in such case those shallbe admitted, that are in other cases forbidden by law. Therefore none of these, nor any such like frivolous objections, will be able to overthrow this course so manifoldly grounded both upon those former several laws, and also upon reason. CHAP. XIIII. An answer to such objections, as upon the Civil or Canon laws are brought against all proceeding of Office in causes Criminal by the Treatisour and the Notegatherer. AGainst all that is or may be brought out of those two laws for confirmation hereof, the Treatisour rather exclaimeth, then objecteth; that they are strange laws, strange and foreign proceed; and I know not against what pretended strange courses, he bitterly inveigheth: as if nothing that is used elsewhere in the world, could savour of justice besides our own; or might be received amongst us, how apt or beneficial soever it be otherwise. Nevertheless, we find in the books of terms and years, many things reported out of the Civil and Canon laws; yea & many rules taken out of them, which are there both alleged and allowed of. That sage and prudent Senate, with the whole people of Rome, when of twelve Tables (which contained the ground of all their laws) ten of them were transcribed & taken out of the laws of sundry common weals then in Greece: they neither held it any disparaged to their own Nation; nor in that respect accounted them the less to be Roman laws. Though it were granted, that the proceeding of office in Courts Civil and Ecclesiastical with us, was drawn at first from those two laws: yet the same or like proceeding, which is used in sundry temporal Courts here; perhaps will not be judged to have been taken and borrowed from those two laws; but rather to have been the very old original custom and Common law of the land. Which consideration (if it be true) must needs (in mine opinion) make much for the approving of the reasonableness and equity of that proceeding: when as several nations, by one instinct of the light of reason, have so long jumped & hit upon one & the same course; without borrowing it, the one of the other. But from whencesoever any of these courts in this land, have borrowed their proceeding of office; seeing temporal Courts of the Realm have practice of the like course, & those laws do allow it also unto Courts ecclesiastical according to the use even of so many hundreths of years, as this Nation hath been Christian: therefore these 1 Vide preamb. stat. 25. H. 8. c. 21. proceed aught not now at length to be accounted either foreign or strange from our policy, but rather as our own homebred English laws, and her majesties laws ecclesiastical, as they be often termed in acts of Parliament. It is true which is said out of the Civil law, Ea nostra facimus, quibus auctoritatem 2 l. 1. C. de Vet. iure emendando. nostram impartimur: Those things we make ours, upon which we bestow our authority, whether expressly, or by implication, upon long continuance of practice. The Notegatherer to the intent to prove (as may be gathered) that the Civil laws do disallow this proceeding, saith: It is to be proved, that the Pagan Greeks' and Romans, ordinarily used In criminibus violatae religionis, no such manner of proceeding, but Per accusationem. It is warily said by him, that it is to be proved; because as yet it is not done. But if it could be proved, that they used none other (the contrary whereof is made apparent) doth it thereupon follow, that we may not; or that all other courses be unjust? or if they used not any other, than Accusation ordinarily; that therefore they used not proceeding of office at all? or if not in that one crime violatae religionis; that therefore in none other crime whatsoever? Unto this Chapter are many of those quotations to be referred, which the Notegatherer hath mustered and thronged together in his first title, which is this, viz. testimonies out of the ancient fathers, that do mislike the proceeding ex officio, and oath now used. 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 give evidence and to say somewhat; do not once mention an oath; yet happily speak somewhat of Inquirie or Accasation. Yea, and his main conclusion, which he propoundeth unto himself in that title to prove, reacheth no further, nor is otherwise then thus: Inquisitio ab imperatoribus prohibita. Such of them therefore belong to this disputation. But this conclusion of his might be true; and yet neither the parties oath in a criminal cause any whit impeached; nor all proceeding of office thereby disallowed. Nevertheless whether all proceeding by enquiry be prohibited by the Emperors shall appear. For I mind here to examine every of his quotations falling into this place by piece-meal. In that his quotation out of Eusebius 3. book and 30. Chapter, no matter (sounding to either of these ways) is contained: but he writeth there of S. Ignatius. Likewise in his 4. book. & 13. Chap. nothing is touched, but of Polycarpus. And in the 17. Chapter of the same book, no more. For he only mentioneth there the writings of justinus Martyr. 1 Paul. Diaco●… lib. 10. in v. ta Traiani. Paulus Diaconus in the place by him quoted, but not alleged (for he allegeth no place at all in that whole title) saith thus: Traianus the Emperor writ back to Plinius Secundus, Christianos profide nullatenus inquirendos: that Christians for that they believed, should not at all be inquired after, or sought for. To the like effect Tertullian 2 Tertul Apolog. c. 2. Nicephor. li. 3. ca 17. saith in the place by him quoted, viz. Traianus rescripsit hoc genus inquirendos quidem non esse; oblatos verò puniri oportere; trajan by his rescript decreed, that this kind of men should not be inquired after: but being offered or hit upon should be punished. It is manifest therefore hereby, that albeit in some favour to the Christians (whom he saw so constantly & in such multitudes, little less than to offer themselves unto death for profession of Christ) he commanded, that they should not of purpose be inquired after and sought up, which is done by general enquiry, & not by special: yet notwithstanding neither the one enquiry, nor the other was by him condemned or forbidden. For special enquiry is not spoken of there at all: & general enquiry (as I showed afore 3 2. part. c. 7. out of Duarenus) is hereby plainly established; insomuch as this course (being but now newly forbidden) doth prove, that it was lawful and in use afore: and being but concerning Christians only, it argueth that all malefactors beside, were still (as they had been before) inquired after, and d●…ligently sought up, the law Civil being left, as it was afore. But how lawful & expedient Tertullian thought enquiry to be (if the Christians had been malefactors in deed, as the Emperor & other heathen then held them) the next words following 4 Tertul. Apolog. cap. 2. 1 containing his judgement touching that decree) do plainly show. Oh (saith he) what a decree is this, that necessarily overthroweth & confoundeth itself? He denieth that they are to be inquired, as holding them innocents; & yet appoints them to be punished as malefactors: he spares them, and is cruel towards them: he winks at them, and yet doth punish them. How falls it out (o Emperor) that thou entanglest thyself by thine own judgement? Si damnas, cur non & inquiris? If thou condemnest them, why dost thou not also use enquiry against them? If thou wilt not use enquiry towards them, why dost thou not quit them, as guiltless? Through all thy Provinces, for searching up of Robbers, Militaris statio sortitur, certain set soldiers (called Stationarij) are by lot assigned: and against traitors and common enemies every man is as largely authorised, as any such soldier. Yea, and Inquisition doth reach also unto Complices and concealers. Then belike of all other, only a Christian may not be inquired against, and yet he may be offered unto punishment. Hereunto also serveth that, which the same ancient father writeth in that book afterwards, and is alleged by Nicephorus in one of the places 1 Tertul. Apolo. c. 6. Niceph. li. 4. cap. 12. that are quoted by the Notegatherer: so far is it from serving his turn any way. What unjustice then do such judges to us (saith Tertullian) which make inquiries alonely against us, and that wickedly, unjustly, and cruelly? Whom Vespasianus albeit a conqueror of the jews, commanded not to be straitly watched: For whose sake, trajan in part disannulled the public laws, in that he forbade Christians to be inquired after: and whom neither The old Civil laws appointed inquiries. Hadrian (albeit he was a most curious searcher into all matters) nor he that was named Pius, would allow to be persecuted. Yet if this prohibition of trajan had been so to be understood, that special enquiry should not be used against Christians: how little nevertheless this would make for the absolute condemnation of all proceeding in that course, may appear by the like decrees, which were also made by Emperors in favour of Christians, that they should not so much as be accused. For the same father elsewhere saith thus: 2 Tertul. Apolog. cap. 5. Tiberius Caesar persisted in his opinion, and threatened great dangers to all Accusers of Christians. Nicephorus likewise, in the next aforesaid place, 3 Niceph. li. 4. c. 12. alleged by the Notegatherer himself, thus writeth out of Tertullian: That Marcus Antoninus the Emperor, after that the Christian Legton in great distress of his whole host (being ready to perish for thirst) had by prayer obtained a shower at God's hand; did appoint a fearful kind of death to all that would institute Accusation against any Christians. To the same purpose both Eusebius, 1 Euseb l. 4. c. 12. and the said 2 Niceph. li. 3. c. 28. Nicephorus, do write in two places (quoted also by the Notegatherer, as if they served 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 Roman empire. And therefore, if any shall hereafter dare to trouble or impute crime unto any Christian, only for that he is a Christian; let him that is so accused, be acquitted; albeit he be found indeed to be a Christian. But let him that accused him be duly punished, as he hath deserved. Now because in favour of the Christians, these several Emperors did command aswell that they should not be accused, as trajan did that they should not be inquired after & sought up: shall we therefore hereupon gather, that neither accusation nor inquisition might be used by the law of the Romans against any offenders? or that these ancient fathers (which report them) misliked of both those proceed, and so (upon the matter) condemned all proceeding & punishing of any offenders whatsoever? But if this be most absurdly gathered; then consequently are these his allegations frivolously and absurdly alleged, to prove, either an absolute or simple prohibition, or any mislike at all of proceeding by enquiry and of Office against offenders. In Dion Cassius (whom to like end he quoteth) the life of the Emperor Nerua is not found. In Dion Nicaeus abridged by Xiphilinus, 3 Xiph. in Ne●…ua. these words be read in the life of Nerua, which it may be he meant. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. The emperor would not permit the rest, to accuse certain persons either of impiety, or of jewish profession: by which term the Christian religion is thought to be meant. What? Because he forbade certain to be accused of those crimes, doth it hereupon follow that enquiry of Office (which is a several course from accusation) was wholly mislliked? This might therefore with some more colour (considering that which followeth) have been brought against the course of proceeding by accusation, and yet impertinenly enough also. For in the same place 4 Ibidem. it is recorded thus: 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. No small tumult was stirred up hereupon, for that every one did accuse whom he listed. There remaineth yet one quotation to be spoken of, that is to be referred to this place, which he bringeth out of Eusebius 5 Euseb. li. 4. c. 9 Niceph. li. 3. e. 37. and Nicephorus; where Adrian the Emperor thus writeth unto Minutius Fundanus. If the men of that province in justification of their request can bring and affirm any thing truly and plainly against the Christians, whereby before the tribunal seat by due course of judgement they may be convicted: then let them only bend themselves to that purpose. But I can by no means endure it, that they should be put to death, only upon the petitions and outcries of the multitude. But this hath no kind of show, either against Accusation or Enquirie of Office. For it condemneth only the merciless and cruel injustice of some Deputies; who to gratify the clamorous common people, were contented to execute the poor Christians without any proofs. To this place pertain also the Notegatherers allegations 1 c. qualiter & quando. el. 2. de accusat. c. ad abolendam. etc. 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 plain, cannot dissemble: nevertheless he doth sum them, & withal affirmeth (though untruly) that the bishops proceed are to the contrary; whereas all ecclesiastical judges will yield unto him, that those Canons both are and aught to be observed, so far as the statutes of the Realm doth warrant them; saving in such points as himself hath misreported them. For first, where a Bishop (as was then for the most part used, but now by long prescription worn out, which prescription 2 Panor. d. c. Qualiter. is also of validity and force) did in all weighty matters perscrutari diligentiùs causam coram ecclesiae Senioribus: that is, examined them before his Chapter, or so many of them as would be present; this he perverteth thus: causa perscrutanda ab ecclesiae Senioribus: as if from the Canon law he could hammer us out the Lay elderships, that be dreamt of; and could make them in every parish the judges of that which was only done by Bishops, coràm, in the presence of the Praebendaries of the Cathedral Church, but not by them. Secondly, whereas only in proceeding against a Prelate it is required, that the excess be grievous; this he doth make general and indifferent to all inquiries against any whomsoever. Thirdly, he hath forged of his own head besides the text there, that to the intent of degradation, a judge ecclesiastical may not proceed by way of Inquisition, but by accusation only. And for specification of such contrarieties as he surmiseth to be in bishops proceed against those alleged Canons, he first saith; that their oath is not abiurationis or purgationis. It is true, that besides these two, some oaths which they minister, are veritatis dicendae, upon the crime inquired of. Which oath one of his own Canons by him quoted, might have taught him, if he had read it over. viz. 1 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 heresy, much more in other crimes. And in truth there is not one word in any of those Canons tending to restrain all oaths unto abjuration & purgation alone; as to any that list peruse them, will be manifest. The next contrariety unto them he assigneth, 2 c. accusatus. de haeret. in 6. Clem. 1. de haereticis. for that Ordinaries and Commissioners ecclesiastical deal by way of inquiry in other matters than heresy. Herein he childishly mistaketh his book; and yet will he be dealing in matters, wherein he seemeth to me, to have no insight at all, howsoever (perhaps) he do flatter himself otherwise. For no Canons do forbid Ordinaries to deal in any matters criminal, being of ecclesiastical cognisance; nor any others in causes duly committed unto them; whether they deal by the one course of proceeding, or by the other. But inquisitors for heresy, having that matter only delegated unto them by their Commission, are in deed there forbidden; that by colour thereof, they should not reach out their authority, unto matters no way touching the crime of heresy. So that the prohibition there, is for matters that are out of their Commission; and not for any manner of proceeding. For they may not deal in matters, that are not committed to them, any more upon Accusation, than they may do by way of Enquirie. The third contrariety surmised by him to be in Bishop's proceed against the Canons 3 c. statuta. de haeret. in 6. is; that they suffer not publication to be made of the witnesses depositions: which is a mere slander, without any colour of truth. Nevertheless, when by publication of the witnesses names that have deposed in matter of heresy, great peril might grow unto them through the friends of the impeached, or otherwise: in that case only the Canons (with certain moderation and cautions) do permit (upon the judges discretion) the names of the witnesses to be suppressed from the defendant, and to be kept from being published abroad at all. Thus much concerning objections made by the Treatiser & Notegatherer out of the Civil and Canon laws, against all proceeding of Offfce with offenders. CHAP. XV. inquiry and proceeding of Office, r●…thout an accuser, and grounded upon some other of the means (afore) proved sufficient to enter into such inquiry, is approved by sundry examples of Scripture. FOr proceeding against crimes by enquiry, and of Office sometimes upon the denunciation of one, sometimes upon fame or hearsay, sometimes upon notoriousness of the fact, and sometimes upon a suspicion only conceived: but still without party to accuse and prosecute; we find divers not obscure traces in the Scripture itself. Under the law of nature, when 1 Gene. 38. V 24. & 25. one told judah prince or head of his family (and therefore a magistrate) that Thamar his daughter in law in her widowhood was begot with child, at that man's only relation without further accusation, and upon the notorious evidence of the fact, of Office he gave sentence that she should be burned. When joseph 2 Gen. 44. V 5, 6, 7, 8, 9, & 10. had caused his silver cup to be put in Benjamins' sack, & had sent his steward to search them all, who also charged them with this theft, and upon pretended suspicion only, did enter to an enquiry, and to make further search: yet there was none of them that appealed to the law of nations, as if they were unjustly dealt with, having none accuser, but joined issue with him, and flatly denied the matter. In the trial of 3 Num. 5. V 12. & deinceps. jealousy upon the only suspicion of the husband, (though something be extraordinary therein and ceremonial) yet by that inquiry of the Priests (to the apparent great peril of the woman if she were faulty) we may note this part of justice in course of that judgement: viz. that there is none accuser or party, that pretends he can or will prove it. For of the husband (who finds himself grieved, and therefore only denounceth her to the Priest) it is said, this enquiry shall be made, because 4 Vers. 14. the spirit of jealousy is upon him. It is also there said to be done, when 5 Vers. 13. the sin is secret, and the husband knoweth it not, but only suspecteth it: & when there is no witness against her, nor she taken in the manner: and therefore such, as it may not be intended the husband becomes the accuser, pretending to make proof of the very fact: yet nevertheless it is testified there, that for bringing her to so dangerous an inquiry & trial, the 1 Ibid. V 31. husband shall be free from sin. If a man be enticed secretly to Idolatry, by him or her that is dearest and nearest unto him; God commandeth thus in this case: 2 Deut. 13. V 6, 7, 8, 9, 10. Thou shalt not consent unto him, nor hear him, neither shall thine eye pity him, nor show mercy, nor keep him secret: but thou shalt even kill him, thine hand shall be first upon 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 said, Thou shalt not keep him secret, & that the hands of all the people must be upon him, it appeareth that the judgement must be public, & not done by private authority alone: for 3 Mat. 26. V 52. every one that (by usurpation) taketh the sword, shall perish with the sword. Then, if this judgement must be public; where is there any Accuser? for he that revealeth and denounceth it, is a witness; in that his hand must be upon him, according to that other part of the law, viz. The 4 Deut. 17. V 7. hands of the witnesses shallbe first upon him to kill him and afterwards the hands of all the people. Nay, how can such an entiser possibly be condemned, except it be upon his own examination; and so by course of enquiry, seeing 5 Nomb. 35. V 30. Deut. 17. V 6. one witness shall not testify against a person, to cause him to die? so that here we have in Gods own law a judicial course, in a capital matter and secret, instituted upon one private man's denunciation: who is so far from being an Accuser properly taken, that he is a witness: and the sin to be found out by course of enquiry upon the parties own examination; in so much as there can be (in this case) none other way of conviction. Likewise in the same chapter, it is prescribed thus: that 6 Deut. 13. V 12 13, 14, 15. if thou shalt hear say (concerning any of the cities, which the Lord thy God hath given thee to dwell in) wicked men are gone out from among you, and have drawn away the inhabitants of their city, saying, Let us go and serve other gods, which ye have not known: then thou shalt seek and make search, and inquire diligently: and if it be true & the thing certain, etc. thou shalt even slay the inhabitants of that city with the edge of the sword: destroy it utterly and all that is therein, & the cattle thereof with the edge of the sword: where we plainly find, diligent enquiry upon hearsay and fame commanded, and prosecuted of office even unto condemnation and execution; without any mention of Accuser or prosecutor of the cause. In the same book afterwards, and for the crime of idolatry likewise, it is thus appointed: 1 Deut. 17. V 4, 5 If it be told unto thee, and thou hast heard it, than thou shalt inquire diligently: and if it be true and the thing certain, that such abomination is wrought in Israel; then shalt thou bring forth that man, etc. and shalt stone him with stones till he die. So that here also we have a fame, or perhaps but the denunciation of one man, whereupon the magistrates enquiry is grounded; and upon the enquiry the magistrates sentence (finding the matter true and certain) & the execution of the judgement; all without Accuser or prosecutor. For grounding proceeding criminal without accusation, upon the notoriousness of the fact; we have a course prescribed in these 2 Deut. 22. V 22. words: If a man be found lying with a woman married to a man, than both twain shall die. And 3 Ibid. V 28. again, If a man find a maid that is not betrothed, and take her and lie with her, and they be found, then shall he give, etc. therefore upon taking in the manner, proceeding unto condemnation and execution is warranted, though there be none Accuser, but only the witnesses, that depose it. So the 4 josu. 9 V 22, 23. Gibeonites for their apparent guileful dealing, falling out by their own confession upon examination; were condemned by joshua unto perpetual slavery, without any Accusation. When the 5 josu. 22. V 11. etc. children of Israel heard say that Reuben, Gad, and the half tribe of Manasseh had built an altar contrary to God's word, as they at first conceived it: they purposed to war upon them; yet thought good to delegate ten princes unto them first, to take their answer and excuse. So that upon the fame brought unto the men of Israel (without any set Accusers) they entered into further Inquisition & examination of this matter. The 6 2. Reg. 5. prophet Elisha had the sin of Gehazi his servant divinely revealed unto him; and was authorized by God to condemn him, & to punish him for it: yet sought he none other to accuse his servant, & to object that crime unto him, besides himself, that was to judge him. Upon the only outcry 7 Act. 22. & 23. of the multitude against Paul, the chief captain (not ignorant of the law of the Romans) brought him before the great Council of the jews, without any particular Accuser or Prosecutour there mentioned: notwithstanding that general Outcry be 1 Acts. 22. V 30. & 23. V 6. termed an Accusing in that place, but not properly. Furthermore, at the only 2 Deut. c. 22. V 14. etc. denunciation of an husband, that he found not his wife a Virgin, she is put to her clearing before the judges. Wherein if she clear herself, 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 unjust bringing her name into question, and life into danger. But if she be not found a maid, she is to be put to death: so that the one of these sentences, must needs be of the judges office alone. For if the husband be the Accuser of the woman, then must the condemnation of him be ex Officio; because his own complaint reacheth no further, but to his wives condemnation or clearing. But if the woman's father be said in this process to he the Accuser of the husband, then is the wives condemnation done ex Officio. So we find that Daniel 3 Dan. 13. V 51. & sic deinceps. proceeded without any other party against the wicked Elders ex mero Officio. For he was both judge, examiner, and Accuser. By the 4 Luke 16. V 2. parable of the wasteful Steward we are taught, that upon credible reports only, we may enter into examination and inquiry of the misdemeanour of such, as be under our authority. How is it (saith the rich man there to his Steward) that I hear this of thee? give an account of thy stewardship. And he looked for none other to Accuse, than himself that was to judge. When by divine revelation the hidden and close hypocrisy of Ananias and Saphira 5 Acts. 5. V 3. etc. was made known unto Saint Peter; and that by special economy, he was publicly to proceed to their examination and condemnation unto death; he sought none other Accuser, but himself objected, and by his own Apostolical authority, proceeded also to sentence against them for that sin. And if that be truly which is commonly said, humana justitia imitatur divinam: why should not this course of proceeding be divine and godly? for God doth as it were make Enquirie upon a cry of sin coming into his ears; and afterward punisheth without any accuser. The Lord 1 Gen. 11. V 5. came down to see the City and tower of Babel, which the sons of men builded. And 2 Gen. 18. V 20. & 21. again afterward touching Sodom, the Lord said, because the cry of Sodom & Gomorrah is great, & because their sin is exceeding grievous, I will go down now & see, whether they have done altogether according to that cry which is come unto me, & if not, that I may know. S. Paul upon the credible 3 1. Cor. cap. 5. V 1. etc. fame and hearsay, touching the incestuous Corinthian, without any accuser or party to solicit him thereto, determined and adjudged he should be committed to Satan. For it is thus said in that place, it is heard certainly that there is fornication among you, etc. It is thus written in the book of Numbers: 4 Nom. 35. V 30 Whosoever killeth any person, the judge shall slay the murderer through witnesses. Where we see this duty and office required at the judges hand (so there be proof made of the crime, by two witnesses at least) and that indistinctly and simply; without any mention of Accusing or prosecuting by any third person. Nay, to say that which the truth is; it is so far off, that (by Scripture) an Accuser should be required in all criminal proceed: that as yet (for my part) I have not found many places, where it is so much as mentioned to have been used, at least as Accusation is properly taken. One I read of in the law of God, viz. 5 Deut. 25. V 1, 2, 3. Where there shallbe strife between men, and they shall come unto judgement, and sentence shallbe given upon them, and the righteous shallbe justified, and the wicked condemned: then if so be the wicked be worthy to be beaten, the judge shall cause him to lie down, and to be beaten before his face, etc. In the Acts of the Apostles, in the speech of the Recorder or town-clerk of Ephesus, the course of Accusation is in these words mentioned. If 6 Act. 19 V 38. Demetrius (saith he) and the craftsmen which are with him, have 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 several places of the Acts, handled in the next chapter of this treatise. But albeit Accusing and Accusers be elsewhere also sundry times mentioned, yet upon particular discussing and view of the places it will appear; that none other Accuser be thereby meant, but witnesses only: who in a large signification, sometimes are unproperly termed Accusers, as I have afore showed. When the wicked high Priests, Scribes, & other Elders of the great Council of that nation, proceeded against our Saviour Christ, whom they knew and perceived (by the moving of all jerusalem at his triumphant receiving thither) to be in great reputation with most of the people: it is no doubt, but they kept in outward appearance a colour of a due and judicial course of proceeding with him, were it but for fear only. Let us see then, whether they retained Accusation as the only lawful course. It is true, 1 Mat. 27. V 12. Luke 23. V 2. three of the Evangelists do report, that the chief Priests and Elders accused him before Pilate: and 2 Mark. 15. V 3. as one of them saith, of many things: & as 3 Luk. 23. V 10. another of them saith, they accused him before Herod vehemently. Yet whoso will attentively way and consider of that history, shall well perceive, that our Saviour 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 approve unto them the justice of the sentence formerly given by the Sanedrin or great Council upon him: to the intent that they might obtain a decree for his executing, at pilate's, or at Herodes hands. For albeit the jews (after they were conquered by Pompeius Magnus) had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, their own laws, ordinances, and ceremonies left unto them: yet had they not iu●… gladij, the power of life and death in them: and so they signify unto Pilate, when he was willing to have shaken them off, and to have had no dealing at all in that action. For when he said, 4 joh. 19 V 31. take ye him, and judge him after your own law: then the jews said unto him, It is not lawful for us to put any man to death. And pilate's decree was nothing else; but that it should be 5 Luk. 23. V 24. as they required. What that was, two other Evangelists do express, viz. that he might be 6 Mat. 27. V 23. john 19 V 16. delivered unto them to be crucified. Lo whereunto his decree tended, unto Christ's execution, but not to condemnation; for he had afore washed his hands, and pronounced jesus innocent. For proof that he was first condemned by the Eldership, and then execution only sought for, by pilate's authority: it appeareth in the 26. chapter of 7 Vers. 65. 66. S. Matthew thus; behold, now ye have heard his blasphemy: what think ye? they answered and said, he is worthy to die. And this Council was holden overnight, immediately after his apprehension. This action Saint Mark showeth plainly to have been his condemnation. They 1 Mar. 14. V 64. all condemned him (saith he) to be worthy of death. Thus having condemned him, when 2 Mat. 27. V 1. 2 the morning was come, they held a Council again, to put him to death; and thereupon led him bound to Pilate the governor, to procure a decree for his execution. For in the next verse after, it is directly said 3 Ibid. V 3. thus: then when judas etc. saw that he was condemned, he repent himself &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 Council proceeded with him? not by Accusation made by any other than themselves: but upon witnesses (though false, & by them suborned) and upon pretence of his own confession. 4 Mat. 26. V 59, 60. They sought false witnesses etc. at the last came two false witnesses etc. & a little after, what 5 Ibid. V 65. have we more need of witnesses? behold now ye have heard his blasphemy. And S. Luke 6 Luk. 22. V vlt. thus: then said they, what need we any further witnesses? for we have heard it of his own mouth. Whereby it is made manifest, that albeit the Priests and other Elders, sought by all means possible (outwardly) to approve their proceeding against Christ unto Pilate and the people: yet did they never seek or require any third person, to prefer up Accusation against him: and therefore a course of proceeding not of necessity to be observed by God's law, as they all then conceived & understood it. Likewise when the first martyr S. Steven was proceeded with by the same Council & Eldership residing at jerusalem, none accuser, but 7 Act. 6. V 11. 13 witnesses only were used For though the Libertines & Cyrenians (upon spite toward Steven) did suborn the witnesses, yet did they not appear themselves openly in the action, as Accusers. Nevertheless it bore the show at first of a 8 Ibid. V 15. due and judicial proceeding in Council, howsoever the execution of him after was done without judgement given, and 9 Act. 7. V 57, 58, 59 by tumult of the people. Now lest any man should surmise, that this was but a corrupt custom crept into those later times; we will therefore look something higher, what was done in former ages. In the proceeding against Naboth, though it was a most wicked judgement, grounded upon perjury and subornation, yet we may 10 1. Reg. cap. 21. V 9, 10, 11, 12, 13. see, the plot was so laid, as it might seem to carry apretence of a due judicial course; whereupon may be truly gathered something touching the manner of proceeding then used. For in a solemn fast, when Naboth sat judicially with the rest of the Elders, and chief of the people; upon the only 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 process was without any Accuser or party. For there are named only the witnesses, the elders, and governors, & Naboth the party condemned. By which, (together with the history of the adulteress 1 joh. 8. cap. 10. mentioned in the Gospel, being conferred with 2 Deut. 17. Deuteronomie) I do gather; that oftentimes, in their judicial proceed, the jews had none other persons that any way dealt, but witnesses, judges, and the party against whom they proceeded. For in the Gospel, albeit those that told Christ of the woman's adultery, are 3 joh. 8. V 10. called Accusers in these words, Where be those thine accusers? yet such of 4 Verse 7. them as were without sin, were willed by him, to cast the first stone at her: Alluding therein to that law, 5 Deut. 17. V 7. that the hands of the witnesses, shallbe first upon an offender condemned, to kill him. So that there were none other Accusers, but the witnesses. This is more plainly proved out of the same book 6 Deut. ca 19 V 15, 16, 17, 18, 19 afterwards. For where it is said, that one witness shall not rise against a man for any trespass, or for any sin, or for any fault that he offendeth in, but in the mouth of two or three witnesses shall the matter be established: it is forthwith added thus: If a false witness rise up against a man to accuse him of trespass: then both the men which strive together, shall stand before the Lord, even before the Priests and the judges, which shall be in those days, and the judges shall make diligent inquisition: and if the witness be found false, and hath given false witness against his brother, then shall ye do unto him, as he had thought to do unto his brother. Whereby may appear that he that is said to accuse, is termed a witness three times, and his falsehood is to be found out by the judges inquisition. This also appeareth more plainly by the story 7 Dan. 13. V 34, 40, & 62. of Susanna, where the Elders were witnesses, and there were none other Accusers. So in the 8 Deu. cap. 21. V 18, 19, etc. condemnation of a disobedient son, there is none other Accuser, but the very parents that make the complaint, and bear witness also. So that we find in Scripture, proceed of office, grounded upon Denunciation of one person, upon hearsay, upon suspicion, and upon notoriety of the fact, aswell by judges Civil or Temporal, adjudging unto a temporal punishment, & by judges being both Civil and Ecclesiastical, and by ecclesiastical alone, inflicting the like penalty: as also by ecclesiastical judges, proceeding to censures ecclesiastical, without any accusation or party to prosecute, other than the judges themselves. And therefore criminal proceeding of office, (& consequently without Accuser) and likewise without any solemn presentment; is by manifold examples of Scripture, sufficiently approved for lawful & godly. CHAP. XVI. An answer to such objections, as out of Scripture or ecclesiastical writers, be made against criminal proceeding of Office, by the Notegatherer and others. AGainst this, are objected two places out of the Acts of the Apostles. It is not the 1 Act. 25. V 16. manner of the Romans, for favour to deliver any man to the death, before that he which is accused, have the accusers before him, and have place to defend himself, concerning the crime. And the 2 Act. 23. V vlt. other: I will hear thee when thine accusers also are come. By which they would gather, that the very Heathens knew it to be contrary to equity, to proceed against a man, otherwise then by Accusation. But both receive one answer. In deed the usual and most ordinary way of proceeding among the Romans in veteri Republica, (before it was reduced to a Monarchy) was at the first in crimes capital (where the people was Sovereign judge) by way of Accusation, as is more largely touched afore. And (next unto service in war,) eloquently to accuse a man before the people, was the readiest step, that forward wits sought 3 Cicero 2. office Plutar. in Lucul. credit and countenance by; being an especial mean, to bear offices of honour in that Commonwealth. Upon which occasion, it was in great credit and use; till through sundry calumniations (to bring men wrongfully into peril of attainder,) they were forced per S. C. Turpilianum, and other laws, to lay most grievous penalties and dangers both upon those that did not prove that which they objected, and therefore were presumed calumniari, or who did praevaricari, i. collude, tergiversari, wrangle, or desist from prosecuting. So that, being so dangerous to the accusers in many respects; it became afterwards, to be less frequented. Yet always both before and after, this they observed: that when there was any that would be Accuser or party seriously, without collusion: there the judge never inquired ex Officio: for ubi adest remedium ordinarium, ibi cessat extraordinarium, as that was holden then, saving in certain cases afore by me touched. But this Crime here objected against Paul, was accounted capital by the jews, and he had enough 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 1 Acts. 22. V vlt. Captain would know the certainty, wherefore he was accused of the jews. Again, 2 Acts. 33. V 29. he was accused of questions of their Law: and further 3 Acts. 23. V 30. Claudius Lysias the Colonel, signifieth plainly by letter to Felix the Governor, that he had commanded his accusers to speak (before the Governor,) the things, that they had against Paul. So that the Governor not knowing the cause, and knowing that the Accusers were commanded to prosecute before him, had just occasion to say, that he would then hear him, when his Accusers came. And in the next Chapter, Tertullus an 4 Acts. 24. V 2. Orator did accordingly come with others of the jews, and accused him before Felix. Likewise when he was afterward convented before Porcius Festus, (the Governor that succeeded next) the jews 5 Acts. 25. V 7. & 18. that came thither from jerusalem, laid many and grievous complaints against him. And after more plainly thus: against whom when the Accusers stood up, they brought no Crime of such things as I supposed. But to make it plain even out of that place, that the Romans besides the way of Accusation used also (upon cause) to inquire of Office: Lysias the Colonel (by occasion of the cry and uproar made against Paul) did without any man's 6 Acts. 22. V 24. instigation, (and therefore of Office) command that he should be scourged and examined; that he might know, wherefore they cried so on him. Where (by the way) appeareth, not only that he was then proceeded with of Office, but also it was meant that he should be (upon those only enducements) examined by torture, of matters that might be penal to himself. Neither did Paul take exception against this course as unlawful, nor the Captain conceive fear, that he had done more than he could justify, in any other respect but this, because Paul was a Citizen of Rome. For they had a law, 1 Duodecim Tab. that a Citizen might not be beaten with rods, nor tortured any way, but by decree of the people. And yet any other of their subjects might be, and were often so used. It is notorious to them that have read any thing almost, of the state of that Commonwealth, that the Dictator's (who for their half year had a Sovereign authority) did inquire and punish even capitally, ex Officio, as they in discretion thought meet. The Censors of manners had and practised for their five years space, the Enquirie and punishment ex Officio, of sundry misdemeanours and dissolute courses of life; not capitally, but either by deposing men from their offices and degrees, by noting them with infamy, by corporal punishments of the lighter sort, or by fine, or by all these. But the Notegatherer maketh also more quotations out of the ancient fathers; which because they mention not an oath at all, I do therefore refer them to this place; as brought by him to prove, that no proceeding Criminal, may be upon the judges Office alone. First, none of the places quoted out of Origen have any resemblance of this matter. That which he quoteth out of S. Ambrose 2 Ambr. li. 8. ●…pist. 64. in respect of some difficulty, 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) upon question of her incontinency. There was none Accuser that took upon him to prove it; neither was any Fame risen thereof; but invidia conflata ipsi, she was depraved by light persons, by heretics, and infamous men, and that by wicked practices, through bribery and intemperancy: yea by some such as had been (afore) put out of her house, for actions far unseeming that, which they outwardly professed. But it was alleged in justification of the said Bishops proceeding with her, that a rumour had been spread, that the said Indicia had borne a child, which she had made away. And that this rumour was so spread by certain women (though but base) that ran unto the Monastery, and there first bruited it, from whence it came abroad among the people, and so to the ears of one Maximus. Howbeit, these which were said to be the first authors of that rumour, were conveyed out of the way. Now Syagrius the Bishop there, hearing of such a rumour, and thereupon proceeding against the said Indicia, did decree, that she should be inspected by Midwives, for the clearing and proof of her Virginity. Which (as he alleged) he did the rather; because certain (taking scandal hereat) did affirm; 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 kind of persons be these, that will presume to prescribe unto us Bishops, what we have to do? And albeit the said Maximus was (in very truth) the relator 1 Sermone suo accusationem detulit: aures tuas implevit clamore: testes auditionis deduxit: cognitionem poposcit. thereof to the Bishop; yet was there none Accuser in proper terms of Law so to be called, nor any that did judicially denounce her thereof, Quam nullus argueret, nullus deferret. Now because a woman of her quality, in so disorderly sort, upon no better grounds of inducement, was adjudged to so uncomely a course of clearing her Virginity; and of so great uncertainty, besides the danger, that the Midwives might be suborned: Therefore S. Ambrose (being Archbishop of Milan, in whose Province Verona stood) did avocate this cause from the Bishop unto his own audience. He therefore hearing it judicially, in the presence of his brethren and fellow Bishops (to whom he imparted it:) besides the former defects, did find upon examining of the matter, that Renatus and Leontius two witnesses produced upon the Fame, which it was intended they had heard (though they were suborned) yet did they materially vary one from the other, in the ground of the cause. It fell out likewise by proof, that they two had sent out of the way, Mercurius and Lea; two other supposed witnesses, and but lewd persons. Also that another pretended witness, called Theudule was run away, knowing that it would be objected in way of exception against her; how she had lain at the said Renatus his bed's feet. Besides, another woman had also confessed, that the said Renatus did commit fornication with her. Now because hereupon, no sinister or bad fame against Indicia was in Law sufficiently proved; but rather to the contrary a good fame was proved by one Paterna, and by the nurse of Indicia: therefore S. Ambrose absolved and dismissed her from such inspection, restoring her to her former good name, but condemning Maximus, and excommunicating Renatus and Leontius for their indirect, unjust, and calumnious dealings. Yet did he not (as he saith) simply condemn that kind of purgation and proof of Virginity, by inspection. For he saith thus: Quid ergo? Negamus inspiciendas virgins interim, quòd nusquam legerim? Non adstruo, nec verum arbitror. In which Process, many points may be noted, to avoche the jurisdiction of Archbishops and Bishops, and sundry their proceed Ecclesiastical at this day: but I find no footsteps or colour of any mislike. If these words of his, be alleged to prove, that no Criminal Process should be made without an Accuser properly so called: viz. It is requisite, that the witnesses be void of partiality; yet so that there first appear an accuser; this very Epistle will show, that such accuser (though then they were more usual) is not necessarily always to be required. For he findeth fault, that she was convented, although there would appear, neque author criminationis, neque accusator, neque professor delationis; Maximus (in truth) being underhand both a relator, and a kind of Prosecutour. So that (no Fame being thereof) if any one would but have showed himself as a relator, or a Denounceour; it might have sufficed, though he were not a very accuser, Qui delationis se nexu obligabat; as S. Ambrose there speaketh of the Inscription required (by Law) adpoenam Talionis, for him, which should fail in proof. And in truth, if Inquire of office were not lawful, and none accuser were to be received, but as Law and old Canons appoint; assuredly there would be few or no Crimes at all in any Court ever prosecuted. So great is the trouble and danger. Besides if the want of an accuser, had been sufficient to have reversed Syagrius his sentence, and to have quashed the whole Process: then what needed S. Ambrose so carefully to have examined her Fame good or bad, by so many witnesses? But that he knew (if an evil Fame had been proved) the judge might by Law have proceeded as he did, without any either accuser or Denunceour. So that we see, he thought it meet, and by Law required at his hands, for her clearing and absolving, to make Enquirie of the Fame; albeit each of those were wanting. And therefore he did of mere Office by way of Enquirie, proceed to the final sentencing of that cause. In like sort was that his condemnation of Maximus, Renatus, and Leontius, done of his mere Office, without somuch as prosecution by any other man. Furthermore to show, that he required not of necessity an accuser in every Criminal cause; he maketh there a plain severance between the Civil Laws (as in that behalf they were then most practised) from the Laws Ecclesiastical, even 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 be had to prove the matter, there was not in an Ecclesiastical cause (no not in Saint Ambroses time) any accuser necessarily required, besides the judges Office. In the 136. Epistle of S. Augustine by him also quoted, there is nothing sounding that way. He there only showeth, that Bonifacius a Priest, was not detected before him of any Crime, and that he had not commanded his name to be razed out of the number of Priests. In the next Epistle is contained, that the said Bonifacius being of S. Augustine's household, and perceiving the lewd inclination of another in that house, would neither agree unto it, nor yet conceal it. The other being complained of by him to S. Augustine their Bishop, did reply; that Bonifacius, seeing he could not (as he would) abuse his chastity, did seek (of spite) in that sort to touch his good name. Touching this reciprocal Crimination of one of them against the other, S. Augustine 1 August. Epist. 137. saith thus: When this matter had long troubled me (saith he) finding no mean, whereby the one of the two might be convinced (albeit I believed the Priest better) I thought at first to leave them both to God, until some such just and plain cause might appear in th'one of them (whom in deed I greatly held suspected) whereby I might turn him out of mine house. But afterwards calling to mind, that at the sepulchres of some Martyrs, it pleased God sometimes to work miraculously; I willed them both to go to the place where the Martyr Foelix of Nola was buried; because from thence whatsoever should happen from God to be revealed upon either of them, might most easily and faithfully be signified unto me by writing. Can any thing hereof be gathered against Criminal Process made of Office? Why? It mentioneth neither the one course, nor the other. But perhaps it will be said, that S. Augustine put neither of them to a Corporallothe. Therein he did most orderly and according to Law. For no Law would permit it in this case, the Crime being not manifested abroad by any Fame etc. And the Criminations being mutual, each of them being Denounced and charged by the other to be Criminous. But for treating of such oaths, this is not the peculiar place. Another of his places quoted out of S. Augustine, I cannot conjecture why he bringeth; except he meant to allege it against Accusation, because speaking to a Donatist of a Donatist, 1 August. Ep. 164. he saith thus: Emeritum certè non decet defendere Optatum, sed fortasse nec accusare. By the quotation out of 2 Greg. Ep. ex Regist. li. 5. ca 125. Gregorius Magnus, writing to Maximus (that had entered into the Bishopric of Salona, and was accused of Simony) I think he meant these words, if any: Seeing (saith he) the charge of making proofs is not laid upon thee, but upon him that accuseth; see thou repair unto us without delay: and then there shall either an Accuser be ready, which shall duly prove that which is objected touching Simoniacal heresy and other matters: or else some other wholesome & due course (as the exigence of the cause doth require) shallbe taken, etc. What? Because the Accuser must prove (where that course is pursued) doth it therefore follow, that none other manner of proceeding is lawful? Nay rather this place (though somewhat obscurely) insinuateth that though the Accuser come not at all; yet the fault shall not be winked at, or left undealt with. By the way, let me note unto you out of this place; that Gregory did in the mean time suspend the said Bishop from celebration of the Sacrament; till trial 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, can I find. S. Basil in the place 1 Basil. Ep. 70. by him quoted, complaining of the injurious persecutions then used against Christian Bishops, saith thus: Whereas no wicked man is condemned sine certis indicijs, without certain Evidence: yet Bishops are condemned by mere calumnies. And a little after he saith thus: Some know not their Accusers, nor have at any time appeared in the judicial place, nor have been complained of at all: and yet being taken away at midnight, have been straightway driven into banishment. Who denieth, when the proceeding is by Accusation, but that the defendant should know his Accuser, that he may be allowed his just exceptions? But what is this to prove, that no course is lawful, besides Accusation? And the fault is not alone assigned hereupon; but also because they were banished, before ever they were either complained of, or were brought unto any judicial place. In Concilio Triburiensi by him quoted, and likewise in the ninth Canon of any of the seven Councils holden at Carthage, there is nothing (less or more) touching either Accusation, Oath, or proceeding of Office, to be found. And that which is in Balsamon in the ninth Canon of the Carthaginian Council holden sub Honorio & Theodosio parvo; is nothing but a Decree, that an excommunicate person shall not be received to the Communion, by any other Bishop or Priest, upon pain of the like Excommunication to him that receiveth him. And the Tripartite history in the tenth book and fourteenth chapter, hath no more, than the said former places have, that way. In the seventh Chapter of the same book quoted also by him, it is said, that the old Accusers of john chrysostom were again excited against him. That which he pointeth at by his quotation of Marcellus Eishop of Rome (as I conjecture) is contained in these words. He dehorteth Maxentius from persecuting Christian Bishops, and wisheth that they be not called in question, till that which hath been wrongfully taken away, be restored unto them. 2 Marcel. ad Maxentium, inter opera Clementis, And then (saith he) let him answer his Accusers; and if it be needful, let him have a competent time of deliberation, to weigh those things that be objected against him; lest being innocent, he be overthrown by any fraud or deceit. Because it is not lawful to judge or condemn any man, before he have lawful Accusers present, and have liberty for his defence to avoid the Crimes imputed to him. Another B. of Rome's authority he also voucheth to the same effect. The words he meaneth (I take it) are these: 1 Damasus Papa Ep. 3. ad Steph. & Concil. Afric. in 1. vol. Concil. Let not the same men be Accusers & judges; but Accusers by themselves, judges by themselves, witnesses by themselves, and the accused by themselves, every one in his due order. For first of all Inscription must always be made, to the end that he which accuseth (if he do calumniate) may himself receive the punishment appointed for that Crime. For before this Inscription, no man may be judged or condemned; seeing even the 2 Leges seculi. temporal Laws do retain the same course. Both which places do show, what things are required, when the proceeding is by Accusation; but speak 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 days (think you) for conscience sake and only to see reformation, adventure this Inscription ad poenam talionis, in case the defendant shallbe acquitted, & custodiae similitudinem, which these places, and the Laws do require: and also endure excommunication, which the Canons do (in that case) establish to be inflicted? For they may not with reason think it over hard to be bound by those Laws and Canons, wherewith they hoped they could have bound others. Quod quisque juris in alium statuit, eodem ipse utatur. Hitherto in answer of their objections pretended to be taken from the Scriptures and ancient Fathers. Now for closing up of this second part, and for proof (which with this kind of men, I trust willbe impregnable) that an Accusation is not of necessity required in proceeding Ecclesiastical criminally; let them hear what is established by the Discipline 3 Discipl. of France. tit. Eccles. Senate or Consistory. Art. 11. being the 6. Article in the Synod at Lions. of the French Churches, compiled together, when Beza was precedent of their Synod. For in this behalf 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 up, or for further prosecution of the cause: And therefore their meaning was (as the ordinary practice of all their Presbyterial Elderships is) to proceed Criminally against any Denounced unto them, though it be but by one Elder in his Ward; or by any other person (unto whom they give credit, never known unto the party convented) without other Presentment or Prosecution of Accuser or party: and therefore of their own mere Office. That this interpretation is not forced, and that the practice of their Consistorial Elderships is according thereunto; may be made manifest by one 1 Calu. Farello. pa 64. Epistolarum in folio. of Caluins' Epistles unto Farellus. But you are first to understand, that by their discipline, all dancing is simply and absolutely forbidden, as a grievous sin, matched with whoredom; and is such, as for which a minister must be deposed from his function, no less for the one, then for the other. Now it happened, that sundry in Geneva had danced together in the house of one Balthasar's widow, amongst whom one was a Syndicke (which is one of the four chief magistrates of that Town) and another of them was an Elder of the Church, for that year. This matter coming (I know not how) unto Caluins' ear, they were called to the Consistory, and charged with that offence, without any Accuser or party (and therefore of mere office) upon none other ground, but because, Resmihi comperta fuit: saith Caluin, I knew the matter well enough. Nevertheless, all (almost) that were convented, denied it at first very constantly. At length Caluin judged, that they should be driven to confess the truth, upon their corporal oaths. This was done accordingly, & the matter was thereupon confessed: the rather, because Corneus (one of the same company) gave them warning, that he would not suffer any of them to be forsworn. Yet for all this, one Elder Enrich, seeing he was to be deposed from his Eldership for it, he would not so easily give over his hold; but alleged against their course of proceeding with him (as in the very like case Tho. Cartwright did not long since in the Consistory at Paul's, before sundry honourable persons in Commission, and cartwright's allegation against the oath ex officia in a criminal cause, by Caluin answered long ago. others) that place of Saint Paul: viz. Receive not an Accusation against an Elder, under two or three witnesses. But both did it with the like success. For Caluin put him off (he saith) with a Dilemma, & made little less than a jest, at his so impertinent an allegation. For he saith, it was altercatio non illepida, a pleasant kind of controversy. Well, notwithstanding this poor defence, Enrich the Elder, being first reviled and rated of all; was deposed from his Eldership, and also shut up in prison; where he did exasperate against Caluin (the chief cause thereof) the hatred of so many, as did bear unto him but slender good will afore. The Syndick also, was for the same offence put out of his A chief Civil magistrate, deposed by the Eldership of Geneva, for dancing. Magistracy; until he should show forth some public testimony of his penitency. divers others of that merry company, were likewise for the same crime imprisoned. And Perinus, though for a time he were stepped out of the way as far as to Lions; yet do what he could, Caluin there protesteth, that he should not scape unpunished. So that we see, it was made no Peccadillo, or trifling sin, but an heinous criminal matter (worthy of degradation, of public penance, and also of imprisonment) against which that Consistory so proceeded without Accusation or Presentment, and of mere office, even against one of the Elders of their Church, and also against a principal Magistrate of their City; and for which, all that denied it, were compelled to make answer upon their corporal oaths first taken; to answer the whole truth, which in that behalf they should be asked, by those of the Consistory. Which not only touched every man's own act, but (no doubt) reached unto all their Complices also, which had trodden the same dismal dance together with them. Thus much of this second part touching the two sorts of proceeding criminal; viz. by Accusation, and upon the judges Office by way of enquiry; and for the justification of the latter of them, by reason, by laws temporal of this Realm, by laws Civil of the Romans, by Canons, by examples and proofs out of God's word, by ancient Fathers and Councils, and by practice of such modern Churches, as the greatest oppugners of this course do account to be best reform: And therefore is manifoldly warranted, both by human and divine approbation. The end of the second part. THE THIRD PART OF AN APOLOGY, FOR SUNDRY Proceed by jurisdiction Ecclesiastical; of late times by some challenged, and also diversly by them impugned: Treating Of Oaths: but more specially, that oaths may be imposed tending to the discovery of a man's own offences, and of his brethren's. Unto the end whereof is adjoined; A Determination in Latin: made (to like effect) by Master D. ANDREWS, in the University of Cambridge. Imprinted at London by the Deputies of CHRISTOPHER BARKER, Printer to the Queen's most excellent Majesty. An Advertisement unto the Reader. I Have not quoted (gentle Reader) any Pages in the Treatisours or Notegatherers writings, which I have occasion to allege: because those which I followed, are but private written copies. but when I had almost finished the reviewing of this Part; I was credibly told, that the said Treatise was put forth, and spread abroad in Print: from Scotland, or from Middleburgh. and I have since seen the same in print: howbeit varying in certain places from my Copy, namely about the latter end thereof. For there be some additions, which (in my judgement) differ no less from the style of the rest; then they do from the written copy. Farewell. The Contents of the Chapters in this third part. MAtters in this third part to be handled: Of the lawfulness of Oaths: What an Oath is: and the reason or original Formal cause, of the use of Oaths. chapter 1 An answer to certain doubts made concerning Oaths; as namely why in Scripture, God is said to have sworn: how (by Oath) he is said to be called to witness: an Oath no chapter 2 tempting of God, but a part of his worship: way (nevertheless) some are repelled from taking Oath: whether Adjuration be lawful: after whose meaning an Oath is to be understood: whether every Pr●…m ssor●…e Oath, be simply to be kept: whether an Oath may be dispensed with, and how far: and whether a Christian may (by mutual Oaths) contract with him, that sweareth by false gods. Division of Oaths according to the outward form of taking them: according to the matter and inward form of them: with plain description of every kind of oath. chapter 3 That the ceremonies used in taking and giving corporal oaths, with laying hands upon chapter 4 the Bible or Testament, and swearing by the contents of it, are not unlawful. The true issue of the next opinion in question: two sorts of crimes and offences prohibited: in what cases an oath (here spoken of) may not be: ministered: and the manifold conveniency chapter 5 and necessity of an oath (sometimes) to be ministered in a cause criminal and penal unto the party: with some few objections, touching inconveniency thereof, an●…wered. That oaths of men touching matters damageable, criminal and penal to themselves, chapter 6 are urged and exacted by temporal Courts, and by the laws of this Realm. Wherein are contained answers to such objections and reasons, as be made for proof of a chapter 7 contrariety or repugnancy in these oaths, unto the statutes, laws, or customs of this Realm; and a Reply to the Treatisors answers, made unto certain objections, supposed likely to be made, in justification of this kind of oath, by the temporal laws. That ministering of such oaths, is by the Laws of the Realm allowed unto judges of Ecclesiastical chapter 8 courts: and some few objections made to the contrary, are answered. That such oath touching a man's own crime is allowed, both by the Canon and Civil chapter 9 laws: how fair, and in what sort: and that the like is established, and thought equal, by the laws and customs of sundry other nations, a●…well ancient, as modern. An answer to some objections, pretended to be made against this kind of oath, from the chapter 10 laws Civil or Canon. That not only such an oath may be taken, but also being by Magistrates duly commanded, chapter 11 ought not to be refused, is approved by Scriptures; by practice of the Primitive Church, and of late times; together with a Reply unto certain answers, made unto some proofs here used. An answer to such objections, as be pretended to be gathered from Divinity, Divines, chapter 12 and from the Examples of godly men; against ministering oaths unto parties, in matters of their own crimes. Four several opinions of the Innovators, against the parties taking of oath in criminal chapter 13 causes, with answers also unto their reasons, and objections. That a man being charged by authority to discover his knowledge touching some offence chapter 14 which his Christian brother is supposed to have done, is bound to reveal it; though it may breed trouble, and punishment to his brother, and the reasons to the contrary are answered, and refuted. Their arguments are answered, that condemn the ministering and taking of an oath as chapter 15 unlawful, because they have not distinct knowledge given unto them of every particular before the taking of it; and the like course (by examples) is approved lawful, and godly. That after the party hath answered upon his oath, it is neither unusual, unlawful, not chapter 16 ungodly; to seek to convince him, by witnesses, or other trial; if he be supposed, not to have delivered a plain and full truth: and somewhat also in approbation of Canonical Purgations, with answer to the Treatisours objections against them. The third part of an Apology for certain proceed by Ecclesiastical jurisdiction, of late times by some challenged. CHAP. I. Matters in this third part to be handled: Of the lawfulness of Oaths: What an Oath is: and the reason or original Formal cause, of the use of Oaths. THat which followeth in this third part of Apology to be handled (according to the order that I have proposed to myself in the Preface before the second) are the challenges taken either to the oath of the party, which is sued & convented: & they are either against the ceremony & outward actions used in taking it; or else because it is given to tie the party to answer in a cause criminal & penal unto himself: or else they are against examining & urging men to depose touching actions of their brethren being criminal; or at least such; as albeit the examiners do hold and make to be criminal and misdemeanours; yet the examinates themselves, do take them for good and godly, not deserving any punishment, but rather high commendation: Or they do touch some circumstance, concurring with the tender of the oath: as that the examinates have not distinct knowledge of every particular, whereupon they are to be examined before they resolve, whether to take the oath, or not: Or lastly, they concern some event ensuing the oath and examination: as that the judges do not rest in that which is affirmed or denied upon the party's oath; but oftentimes proceed to a further examination by witnesses, concerning the same points. This matter of an oath is a principal challenge of theirs, which they draw and spin out into these particular exceptions and challenges as you see. And it is the thing (together with proceeding against crimes and offences, by way of Enquirie, Ex officio) wherein you most especially desired a full resolution, which would to God, either in the rest or in this, I were as able to do; as I am ready and willing: and as the matter itself and goodness of the cause would yield and afford, to a skilful and sufficient man. But the rather to perform my promised utmost endeavour; I hold it not amiss, for better understanding of the rest, to touch (as briefly and plainly as I can) the nature of an oath, and some (I trust) not unnecessary questions about that matter which I have collected. First I will touch (but very briefly, not taking upon me to do it, in sort as Divines could) the lawfulness of oaths with answer to some objections, which is the question An sit? I will stand the less herein, lest I seem to seek, to draw any of them into hatred; as if these innovating disciplinarians did directly condemn oaths before Magistrates; which most solemnly they protest, they do not. Albeit if all their positions (hereabouts) were scanned and compared together (some holden & delivered by one, and some by others of them) both shrewd and lewd conclusions, pricking fast forward to this point; would necessarily thereupon follow. Next I will handle what an oath is: which is the question Quid sit? Then the original Formal cause, and also final of an oath; which is the question 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, (that is) why it is? Afterward, certain not unnecessary points of doubt; which be made concerning oaths, and therefore nearly tending to the better opening of the qualities of them. And lastly how many sorts and several kinds of oaths there be; with some description of them: whereby you may the better understand what they are, and how they differ one from another: which two last do open the question 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, of what sort and quality the oath is. The lawfulness of an oath appeareth; in that we are in the 1 Exo. 20. v. 7. Deut. 5. v. 11. Decalogue forbidden, to take Gods holy name in vain: And in 2 Exo. 19 v. 12. Exodus it is said: Ye shall not swear by my name falsely: neither shalt thou defile the name of thy God, I am the Lord: So that to swear, is not simply and absolutely forbidden; but swearing in vain, and for swearing. In 3 Deut. 6. v 13. Deut. 10. v. 20. Ies●…. 45. v. 23. Deuteronomie there is a flat commandment to swear: and it is there joined, with the fear and service of God, as being an effect of both: Thou shalt fear the Lord thy God, and serve him; and swear by his name. And in the prophet 1 jere. 〈◊〉. v. 〈◊〉. jeremy thus, Thou shalt swear, the Lord liveth, in truth, in judgement and in justice; and the nations shall be blessed in him, and glory in him. And again the same Prophet pronounceth a blessing upon such; as duly, and as they ought, do swear by the holy name of God. 2 jere. 12. v. 16. If (saith he) they will learn the ways of my people to swear by my name, The Lord liveth, as they taught my people to swear by Baal: then shall they be built in the mids of my people. And the prophet David 3 Psal. 63. v. 11. thus: All that swear by him shall rejoice in him, for the mouth of them that speak lies, shall be stopped. We find even in the New Testament, that the Apostle Paul did divers times swear: as 4 Rom. 1. v. 9 first, God is my witness. And again; 5 Rom. 9 v. 1. I speak the truth in Christ, I lie not, my conscience bearing me witness in the holy Ghost. Likewise in 6 2. Cor. c. 1. v. 23. another place, I call God to witness upon my soul. Whereupon S. 7 August. ad Publicol. & Serm. 30. de verbis Apostoli. Beda in 1. Cor. ca 15. Augustine thus collecteth: That ye may know it is no sin to swear truly; we find the Apostle Paul to have sworn. Therefore where Christ telling what was said of old time, viz. 8 Mat. 5. v. 33. & 34. Thou shalt not forswear thyself, but shalt perform thine oaths to the Lord, doth after add this; Swear not at all: must have another interpretation, than Anabaptists (that be adversaries to all oaths) do frame: for the holy Ghost is not contrary to himself. There is not one God who is author of the old Testament, and another of the New (as some blasphemous heretics hold) and Christ came not to dissolve the Moral law of God, but to fulfil it: and the holy men that are reported to have used oaths both in the old and in the new Testament, and have allowed them by their Canonical writings; were no takers of Gods holy name in vain, nor mistakers of Christ's meaning: for they had the spirit of Christ speaking in them. In which respect S. 9 August. lib. de mendacio, c. 15. Augustine saith hereof thus: By that which the Saints and holy men in Scripture did practise, may be gathered (oftentimes) how the commandments comprised in it, are to be understood. How then is that commandment of Christ to be understood? The same Father in the same 10 Ibidem, & lib. 1. de Serm. Domini, c. 30. place doth teach us. The Apostle (saith he) in that he sweareth in his Epistles, doth thereby show unto us; how that saying is to be understood: viz. I say unto you swear not at all: that is not so to swear, as to do it lightly and easily, and so (happily) to fall from that unto a custom of swearing, and from customable swearing, unto plain for swearing. Therefore we find not that the Apostle did swear; but in his writings: where a more wary consideration is a stay unto the rashness of the tongue. And again the same S. 1 Ep. 158. ad Publicolam. Augustine to like effect as afore, doth elsewhere write: It is said in the new Testament that we ought not to swear at all, which seemeth to me therefore to have been said, not as if it were sin to swear, but because to for swear is a most heinous sin: from which he would have us to be far off, in that he admonisheth us not to swear at all. And he 2 Serm. 28. c. 3. de verbls Apostoli. briefly thus determineth hereof: Ecce verum iura, non peccas. S. Jerome doth thus expound 3 Hierom. in 5. Matth. that commandment: Christ doth not here forbidden us to swear, but meaneth that we should not swear by creatures. It is gravely and truly said by a very learned schoolman 4 Thomas 2, 2. thus: An oath in itself is both lawful and honest: this appeareth by the original of it: which is because men believe that God is truth that cannot be deceived, and also hath knowledge of all things. Likewise by the end, because an oath serveth oftentimes for cleared of men, and taking up of controversies; as is said in the sixth chapter to the Hebrews: but yet an oath may turn to the evil of him, which useth it ill: that is, without necessity, and due caution. And therefore where it is said by 5 Matt. c. 5. v. 37. Christ: Let your communication be yea, yea: nay, nay: for whatsoever is more than these cometh of evil, hath another meaning than it seemeth to carry at first show ex cortice verborum: For S. 6 August. lib. 1. de Serm. Dom. in monte. c. 30. Augustine saith in another place, thus: If thou be compelled to swear; know that it necessarily cometh of their weakness, whom thou goest about to persuade; and this infirmity is a kind of evil. Therefore he doth not say, whatsoever is more; is evil, but cometh of evil. For thou dost not evil that usest thy swearing well, to the intent to persuade another man in some matter of moment: but it cometh of a kind of evil in him, for whose infirmity thou art compelled to swear. And in another place thus: 7 August. in c. 1. ad Galat. Albeit an oath be more than yea, yea, or nay, nay, and therefore cometh of evil: yet cometh it not of evil from thee, but of their infirmity, or not believing of thee without an oath. But Gratian teacheth 8 〈◊〉. q. 1. c. 16. us, that by this word (Evil) in this place wickedness or sin is not to be understood, but a punishment of sin, poenapeccati. And beside, these two sayings of Augustine, are spoken of Private, and not of Public oaths. Now followeth what an Oath is: but first touching the name of it, in the Latin tongue: wherein it is known, by three several words: The first is juramentum, a word derived à jure, of Right or Law, as a thing required by Law: and this is of most general use, to all kinds of Oaths. The second is jusiurandum, serving sometimes in general, for every Oath; but most often for that which is called Decisorium which shallbe touched afterwards: The third word is, Sacramentum, à 1 Quintil. lib. 5. ca de jure iurando. Sacrando, because thereby a man doth Devouere, vow up and give over his own safeguard and prospering unto God; if willingly and wittingly, he swear falsely: which last of the three, in the emperors days (whose constitutions are set down in codice justiniani) was most of all the three in use: and so is it used for an Oath, in all the Latin Entries, at the common Law: and thereof comes their French word Serement. S. 2 Aug. serm. 28. de verbis apostoli Mag. Sentent. dist. 39 Augustine saith, jurare, est ius veritatis Deo reddere: And again in the same place: Quid est jurare per Deum, nisi testis est Deus? Tully 3 Cic. 3. Offic. defineth it thus: jusiurandum, est affirmatio religiosa. 4 Aristot. 18. Rhet. ad Alex. Aristotle defineth it thus: 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, an Oath is a speech void of proof by any demonstration; other than that it is made, by taking the name of God to witness. But more fully (yet briefly) by 5 Azo in summa. Azo, jusiurandum est affirmatio vel negatio, adhibita religione. It is not tied to any form of words, but (in this behalf) is very manifold. S. 6 Hieron. in 4. jeremiaes. Jerome saith: where we find in the old Testament, The Lord liveth, this is an Oath. And an other old 7 Chromatius in c. 5. Matth. writer far more generally: whosoever (saith he) speaketh the truth, doth (in some sort) swear, because it is written, A faithful witness doth not speak untruly. The most general formal cause, and also final, of every lawful oath, is for a confirmation of that, whereof we swear. Now the confirmation of matters within compass of Science; is made by discourse of reason; proceeding upon points, known by the light of nature, to be unfallibly true. But the several accidental facts and words of men, cannot by such necessary discourse of reason, be confirmed: and therefore, those things that are spoken, concerning such matters, are (for the most part) confirmed by the words of such as know them. Yet a man's bare word was not thought sufficient, for confirmation of that, which was to be delivered by him. One cause, why it is not to be thought sufficient: is the want of care (to deliver a sincere truth) which most men be possessed with through corruption of our nature: but rather in steed thereof, very untruths; as by wicked affections we be lead. Secondly, human testimony is not always 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 speak hereof; and for that it is most requisite, in the common affairs of the world; that a certainty (even of these matters) may be known (for manifold occasions happening) therefore it was necessary for the further credit of such as pretended to be able to speak thereof to have recourse unto divine testimony: for that in God, there is neither untruth, nor any thing is hidden from him. And that which is so confirmed & strengthened, by so much a better & greater testimony, than the bare sayings of man are, must needs be intended to be more sufficiently, thereby approved unto us. To this effect we find it thus determined by a Council; 1 Concil. Tolet. 8. ca 2. Whatsoever concerneth any league of peace, is then more firmly grounded, when an oath doth strengthen it. Yea and each thing that draweth men's minds to friendship and concord, doth continue more fast; when they are tied by the bonds of mutual oaths. Whatsoever also is to be proved by witnesses, is more surely verified, when an oath concurreth with that, which is affirmed. And where witnesses be not, it is the strictness of an oath, which only can descry, of what credit he is, that pretendeth to be innocent and guiltless. Therefore he that sweareth by calling God to witness; doth (as it were) use God's testimony, to concur with his own saying. And it is (in this regard) generally by all nations presumed; that what is spoken, with such invocation of divine testimony, may be (probably and for the most part) holden for truth. The very heathens by light of nature, could discern thus much: for 2 Aristot. cap. 18. Rhet. ad Alex. Aristotle saith that no man will forswear himself, that feareth the punishment of God; and shame amongst men: considering, that albeit his perjury may be hidden from men, yet can it not be concealed from God. And another in this sort: 1 Terent, in Hecyra. I know nothing more sacred than an oath, whereby I may approve my faith unto other men. And 2 Cic. lib. 3. Tully to like effect: Our predecessors, through the whole course of this life, thought there was no straighter bond to tie men, than their oaths. Therefore the Civil law holdeth; that 3 L. Antistius. ff. de acquir. ha●…ed. he which sweareth doth not only declare, but confirm and establish thereby, his true meaning. And that law calleth it a 4 L. 1. C. de iuram. calumn. religious fear, whereby the quarrelsome boldness of such as contend in law, is restrained. The Canons do call it 5 c. cum contingat. etc. li vero, de iureiutando. vinculum animae, a band of the soul; borrowing that speech from Divines. 6 Demost. contra Baeotum. Demosthenes saith; that an oath is the greatest and gravest matter, that is amongst men: and as he elsewhere doth testify; 7 Idem contra Aristocr. to swear in truth, is a duty, which (for the most part) is to be performed of all men. Aristotle hereof further saith 8 Arist. 1. metaph. cap. 3. thus: 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. most ancient is most honourable: but an oath is a most worthy or honourable thing. And an heathen 9 Ulpian. l. 1. ff. de jure iurando. civil lawyer giveth it this elegy: juramentum maximum expediendarum litium remedium: an oath is an especial mean for dispatch of suits. Therefore the more commendable & necessary an oath is in any respect; the more ugly and horrible is perjury, and the violation of an oath. 10 Aristot. 1. lib. Rhet. ca 15. in fine. Aristotle could discern thus much. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. he that standeth not to his oath, or performs not what he sweareth, turneth all the world upside down. It is written of 11 Plutarch. in apotheg. Aelian. 14. var. lect. c. 2. Agesilaus, when he heard how Tissaphernes the General of the Persians had broken the league, which was mutually agreed upon, and also confirmed by oath betwixt them; that he said he took himself greatly beholding to Tissaphernes for it; for he doubted not, but God and men, would take vengeance on him that had perjured himself; and would on the other side prosper, and give good success unto himself in those wars; who was willing to keep his oath, but was deceived by the other. And 12 Plato lib. 12. de legibus. Plato accounted perjured persons, as so many monsters amongst men; and therefore saith; they seem to be of the race of the Tytanes, insomuch as (by their perjuries) they do no less than those Giants were feigned to have done, that is, even wage battle with God himself. Hitherto concerning some part of the nature of oaths. CHAP. II. An answer to certain doubts made concerning Oaths; as namely why in Scripture, God is said to have sworn: how (by Oath) he is said to be called to witness: an Oath no tempting of God but a part of his worship: why (nevertheless) some are repelled from taking Oath: whether Adjuration be lawful: after whose meaning an Oath is to be understood: whether very promissory Oath, be simply to be kept: whether an Oath may be dispensed with, and how far: and whether a Christian may (by mutual Oaths) contract with him, that sweareth by false gods. seeing then (as the 1 Ad Heb. 6. v. 16 Apostle testifieth) an Oath is made by him that is greater: it may be asked, how (in Scriptures) God is reported, to have sworn? The same Scripture doth answer itself, in this point: for it is there said; that men when they swear, do swear by a greater, but 2 Ibidem v. 13. God having no greater to swear by, did 3 Genes. 22. v. 16. Isai. 45. jerem. 49. v. 13. jerem. 22. v. 5. swear by himself. Now because an Oath is for a confirmation of truth unto others, lest he be supposed to speak untruly, as hath been said: how can this doubt fall in God, who is truth itself? I answer (as afore) it is 4 Hebr. 6. v. 16. amongst men, that an Oath, is for such confirmation. But when in Scripture God is reported to have sworn; this is not, in respect of any possibility, that defect of truth may happen to be in his divine Majesty, which had need so to be confirmed, or as if it were not needful for us wretches, to rest in his sacred single word: but it is done, 5 Ibid. v. 17. 28. more abundantly to show unto the heirs of promise, the settled incommutabilitie of his counsel or decree: that by two unchangeable things, in which it is impossible God should fail, or be deceived; we might have strong comfort. So that thereby we are taught to our comfort, that what is so confirmed by God's Oath; doth proceed, from the infallible and unremovable determination of Almighty God. It may be asked, in what respects God is said to be called unto witness by an Oath? I answer with the Schoolmen, for two respects: the first is, because he oftentimes revealeth and bringeth forth the very truth of a matter (untruly delivered by any man) either by inward inspiration of some other person, or else by bringing it to the open light and view of the world, which (afore) was kept close and secret. The second consideration is for his punishing of all those, that swear untruly: and herein he is as in this world their witness; so either here, or in the world to come; he is their judge, and a revenger. A civil Lawyer, though but an heathen, could say, Quipeierat, Deum habet ultorem, God himself will take vengeance, of a perjured person. Neither can an Oath be said to be a tempting or a provoking of God, so long as it is used, but upon necessity, or good occasion. An oath is said to be a service and worship yielded unto God himself, in a twofold regard: the first is, in that we fulfil and perform that, which we swear: the second, in that by calling of him to witness, we do withal acknowledge, that he knoweth all things; and is a swift judge and Revenger of all those that love or make leasings. So that albeit an oath, in respect of the matter concerning which it is made (for the most part) may be termed an human and civil matter: yet in respect of him who is called to witness; it is always a divine, and a religious act. But insomuch as an Oath is (upon diverse occasions) necessarily required of us, as a piece of God's service & worship: it may be questioned; why some sort of men are repelled by politic Laws, from taking any Oath, and from bearing testimony? I answer, that children, mad men, and such like, are not admitted to take oaths; because they have no perfit use of reason: and therefore do want that due and reverend consideration, and also that 1 Hierem. 4. v. 2. judgement; which the word of God requireth, besides truth and justice, to be had and used in taking of an Oath. but perjured persons, are therefore to be repelled; because by their demeanour forepast it is made apparent, how slender account they make of God's holy name: for their contempt (in this behalf) is intended still to rest in them: Semel malus semper praesumitur malus; praesertim in eodem genere delicti. It is made doubtful (in diverse respects) whether every or any adjuration be lawful to be used amongst Christians? the resolution whereof, will best (I think) be made manifest, by the definition thereof, and by distinction. To adjure (as 1 Thom. 2. 2. q. 90. in Axiom. Aquinas doth define it, though not altogether so generally) is nothing else, but to induce or provoke one to do or omit something, by using or interposing of the name of God, or of some other sacred thing. This is used either towards ourselves, or else towards others. towards ourselves, as when by a promissory Oath or vow, we bind ourselves solemnly to God, for performance of something. And this kind of adjuration may be lawful, or unlawful; according to the several qualities and circumstances of the matters; which we have so adjured or bound ourselves to perform; which is not my purpose (here) at large to prosecute. The consideration of adjuring others reacheth either to such, as be no way under the adjurer's authority, or to such as be. Of those which be not under the adjurer's authority; the first, is God above all. Now, albeit we use in our prayers unto his divine Majesty, sundry vehement obtestations, as by his holy name and for his Gospels, and his son Christ jesus his sake, and for the promises made in him: yet is not this (properly) to be called Adjuration; as though by this earnestness we thought men could, or did mean, to move or change his will, which is immutable: but that hereby we may the better enkindle, and stir up our own faith: to the end, we may be more fit to obtain that, which in his eternal wisdom he hath decreed, and though fit to bestow upon us. The second member is of such, as be creatures, and these are either unreasonable: towards whom (as I take the matter) all Adjuration as it is vain (in that they hear us not, or understand us not) so is it also unlawful: or else they be reasonable creatures. Of reasonable creatures not subject to the adjurer's authority, some be Spirits, and some be men. To adjure Spirits being absent, whether they be good or evil Spirits, seemeth both vain; and unlawful: for that we have neither warrant so to do, nor yet, that they do or can hear us. Besides that, their actions are not subject to our directions, but unto Gods alone. For (as Aquinas there allegeth out of Saint 2 August. li. 3. c. 4. de Trin. Tom. 3. Augustine) Spiritus descrtor, regitur per spiritum ●…stum. But if they be evil Spirits, though they certainly might be known to be present, in respect some that them are thought to be condemned into the air, some into the waters, and some into the entrails and caves of the earth, as divers very learned men do hold: yet to do this; with intent to learn or obtain any thing of them, it is (without doubt) simply unlawful; and they 1 Deut 18 ver. 10, 11 & 12. before God abominable, that so do adjure, or contract any familiarity with them. But the said learned schoolman, by force of that place of Saint 2 Luke 10. ver. 1. 9 Luke's Gospel, viz. Behold I give unto you power to tread on Serpents and Scorpions, and over all manner power of the enemy, and nothing shall by any means hurt you; thinketh it lawful for us, in the name of God, to adjure even evil spirits; to the end only, that they hurt us not, either spiritually or bodily. But the Adjuring of such men, as be not under the adjurer's power or subjection, is sought to be done, either by way of compulsion or seeking to lay upon them (thereby) such a necessity, as a man may (by vow) impose upon himself, (which is unlawful, because it is an usurpation of a power over another, that is not given him) or else; it is by way of persuasion, to move him, the rather by the respect of the sacredname of God. and this is thought not unlawful to be used, in matters lawful, and of importance. There resteth only now to speak, of the urging (by course of Adjuration) of such other men, as be under our authority. This urging is done; either in way of absolute compulsion, or else but causatively. Absolute compulsion (in this matter) I call it; when a man seeketh, as deeply and necessarily, by such Adjuration, to tie a man's will and conscience: as he may do, by the like obtestation of God's name, bind his own will and himself. And this Adjuration is very unlawful: because every man is lord and guider of his own will, & of his own voluntary actions, but not so of any other man's. And according to this acception is that of 3 Origen. hom. vlt. in Matth. Tom. 3. Origen to be understood, where he saith thus: I think, that he which will live according to the Gospel, ought not to adjure another man: for if by Christ's commandment in the Gospel, it be not lawful to swear; it is evident, that a man may not adjure another: and therefore it appeareth, that the high Priest did unlawfully adjure Christ, by the living God. But if it be but compelling causative, that is in respect of the duty which every inferior (by oath or otherwise) oweth unto his superior, proceeding justly and according to Law: then is this Adjuration lawful; and requireth necessarily, the inferiors obedience therein, upon peril of sin and penalty of the Law. The use hereof we read as well in the Old, as in the New Testament. 1 Prou. 29. v. 24. Solomon sayeth, He that is partner with a thief hateth his own soul, for heeheareth cursing, and declareth it not. I am told by those that are very skilful in that language, that the Hebrew interpreters do expound this cursing (which is here spoken of) to be an Adjuration and curse, that was usually made by the Priests against such; as had secretly done, or known of any offence: to induce them hereby the rather, to reveal it. And in the New Testament, the very word of Adjuration is used by Saint 2 1. Thess. 5. v. 27. Paul. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. I adjure you by the Lord to read this Epistle to all the holy brethren. And it is worth the consideration, whether that be not also an Adjuration where he 3 Ephes. 4. ver. 17. saith, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 etc. This therefore I say and testify in the Lord, that ye walk not as other Gentiles walk, in the vanity of their mind. Thus far of Adjuration. Where there may be some doubt by reason of the variable acception of some words of an oath; question is made according to what sense, such oath must be understood, taken, and performed by him that sweareth. This question doth 4 Isid li. 2 ca 31. de summo bono. Isidore thus answer: with what cautel of words soever a man doth swear; yet God, that is witness of the conscience, so takes it, as he that gives the oath, doth understand it. For that man which will take vantage upon the words of it, is guilty two ways: both because he takes God's Name in vain, and also circumuents another by deceit. therefore if he that sweareth mean simply and not guilefully, then is he bound, according to his own intention. But when the words are or may be of another signification, then either the taker, or the tenderer of the oath doth mean; In this case, it is thus by 1 Aug. serm 28. cap. 2 de verbis Apostoli. S. Augustine gravely & briefly resolved: ream linguam non facit nisi mens rea: It is not the words, but the guilty heart that maketh the perjury: which it seemeth he translated out of * Arist. 1. Rhet. cap. 15. Aristotle, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, forswearing is of the heart, and not of the mouth alone. Thomas of 2 Tho. 2. 2. q. 91. ar. 7. Aquine (in this behalf) thus writeth: when the meaning of him that sweareth, and of him that tendereth the oath, is not the same; if this do 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 whom, or by whom it is tendered: In which respect, the old verse is to good purpose: 3 Glo. in Auth. iusiurandum. Fallit iurantem, iuratio facta per artem. A cautelous & crafty oath (in truth) deceives none so much as him, that taketh it: if by his own fraud he think to escape perjury. therefore wheresoever any fraud or cavil is used by him that taketh the oath; there perjury in the sight of God, is committed. 4 Martial. li. 6. Epigr. Martial butan heathen Poet, could discern thus much: jurat capillos esse quos emit, suos, Fabulla: nunquid ille Paulle peierat? A man wears hair on his head that he bought, and yet swears they be his own hairs: I pray you sir is he for sworn, or not? Frivolous then and ridiculous is that excuse, whereby Popish writers would excuse their S. Francis of a lie, under pretence of his charity, and good zeal. 5 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 cry; Friar Francis was asked by one of the pursuants, whether he saw such a man pass that way, or no? whereunto (putting first his hand into his sleeve, or as some writ, his finger in his ear) he answered, that he saw no such man passing that way, meaning through his own sleeve, or ear. In deed such deceitful answering or swearing, is so far from excusing a man from untruth & perjury; that 6 Cic. lib. 3. office. Tully saith thereof thus: fraus distringit non dissoluit periurium, fraud and cautelous dealing, doth not excuse or qualify; but tieth harder, and enwrappeth a man further into perjury. Hereupon it is also said in law, thus: 7 Gl. in. c. quemadmodum. de jure iurando. Conditiones tacit subintellectae non faciunt juramentum conditionale, conditions and private protestations, which he that sweareth frameth in himself, or keepeth in his own mind, do not make the oath to be conditional which is given him simply. It may also be asked, whether every promissory oath, is simply and absolutely to be kept, or how far? For answe●… hereof, I will note unto you, what I find (probably) said; and then leave the exact resolution thereof, unto grave Divines. Every 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 truth) even at the first taking of it, simply, and in itself evil; howbeit perhaps not then discerned so to be, by him who took the oath. And in this case, the party sins grievously in swearing; but more grievously he should sin, if he kept his oath. For every oath must be made * jerem. 4. V 2. in justitia, in righteousness. And 1 22. q. 4. per totum praesertim c. inter caetera. Augusti Severo. etc. quam to. de jure iurando. juramentum non est vinculum iniquitatis, vel cuiuscunque criminis, sayeth Saint Augustine: an oath tieth no man to do that which is wicked. To like effect saith Isidorus, In 2 Ibidem c. in malis ex l sidoro in synony. lib. 2. malis promissis rescind fidem; in turpi voto muta decretum; quod incautè vovisti, ne facias: impia est enim promissio, quae scelere adimpletur. The second case is, when that which is promised by such oath; is an hindrance and impediment to a greater good, as if a sufficient man for it, should swear never to be a minister of God's word and Sacraments; what desire soever himself should afterward have thereunto, or what need soever the Church of God should have of his help in the ministery. In such a case, he sins by his rash swearing; but not in keeping the oath, as the Schoolmen hold, albeit they think it better he should break the like oath; then that he should keep it. The third case is, when as some unlooked for accident is discovered, or falleth out afterward; that was not thought upon before. Now, if by such event ensuing, the oath cannot be performed without crime and impiety; then (without doubt) is such performance of the oath a sin, as well as in the first case of the three. Saint Ambrose in this 3 Ambros. de office lib. 3. c. 12. behalf saith thus: It is sometime against Christian duty to perform a vow promised by oath: so Herode offended which put john Baptist to death, rather than he would go back with his oath and promise. Yea even where such oath might be performed without sin; yet may there be sundry cases, wherein the party is thought not to be bound, unto performance. As imagine, that I being to receive 1 L. finali. C. de non number. pecunia. money which is in telling for me; do in the mean time (in assured hope to receive it) seal an obligation, and withal swear to pay unto him so much money at such a day. Nevertheless if the intended creditor shall thereupon refuse to deliver me any money; or if any other accident (without my default) do happen, whereby I could not receive it; in such a case, neither mine oath, nor obligation doth bind me, to performance and payment. Therefore these rules ensuing are gathered out of that, and sundry other like laws, viz. juramentum non porrigitur ultra consensum. 2 Arg. l. Quod Servius ft. decondictio causa dati. Censetur clausula apposita in juramento, quod promissio valebit, rebus in eodem statu remanentibus. 3 c. tua nos. de eccles. aedific. juramentum non extenditur ad inopinata. Non 4 c. veniens. etc. Quinta vallis. de jure iurando. c. ex multiplici. de decimis. Arg. c. audita. de restitut. spoliatorum. extenditur ad ea de quibus non est cogitatum. And juramentum 5 c. ad nostram. el. 2. de jure iurando. non extenditur ad incognita. And upon these grounds it was; that the Emperor Vespasian did 6 Sueton. in vita Vespasiani. release, or (as we more usually now speak) dispense with a certain knight of Rome, for his oath. This knight had solemnly sworn unto his wife; that he would never put her away. Which he might (otherwise) lawfully have done (by the heathenish custom of that City then) either for any just cause, or for no cause at all. After this oath, the wife was taken in adultery; therefore the Emperor, dispensing with her husband's oath (because in all likelihood, the knight in so swearing, never dreamt of such a treachery) the knight then without scruple; did repudiate, and forsake his adulteress wife. For the like 7 L. vlt. ff. ad municipialem. reason did Antonius and Uerus Emperors, dispense with the oath of one (being chosen Duumvir, a chief Magistrate in Municipio, not much unlike unto one of the Consuls in Rome) who had afore sworn; that he would never after that time be present in any meetings or assemblies of the Senators, or Decurions there. Out of which place, a 8 Alberic. de Ros. in l. quotiens C. de precibus Imper. offer. writer upon the Civil law doth gather; that the Emperor may dispense with a man's oath. Here then another great, and not unnecessary doubt ariseth; whether any man may discharge or dispense with another man's oath; and if he may, how far, and in what cases this may be done? In answer whereof; we are first to understand, that according to the distinction of times, into time past, present, or to come, there is also diversity of oaths. One kind of oath (in such regard) is termed assertory; which is an affirmation or denial with oath, touching some thing that is past or present. Now there is no doubt, but that this oath cannot at all be discharged, released, or dispensed with; by any human authority. for the matter of it being either concerning a thing past, which cannot be altered and revoked; 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 itself must needs be undischargeable, and undispensable: for to give a dispensation herein, were no less, than (in effect) to determine; that it is lawful to have truth wanting in some oaths: insomuch as other dispensation than this, the nature of things past or present, cannot admit. The other kind of oath, is called promissory: whereby a promise (confirmed by an oath) is made, that some thing shall be done or not done, hereafter. And about this kind of oath, the doubt only resteth. This promissory oath is made, either touching such matters as do immediately and apparently tend to the advancing of the glory of God, or to the benefit of sundry others, whether such benefit be spiritual or corporal: or concerneth such matter, which evidently derogateth from the glory of God, or from the benefit of others; or it is of a matter tending to the only profit and benefit of some particular man; to and for whose behoof such promise (with oath) is made: or lastly, it consisteth and is bestowed upon such matter, as by reason of some event happening, or at least discovered afterward; it may be justly thereupon doubted, whether the oath itself do bind or not, be lawful or unlawful, expedient or not expedient, profitable or hurtful to the party (all circumstances considered) to be kept and observed. In the first case of these four, 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 by such one, as is under an husbands or father's subjection. For in the first of these excepted cases (in very truth) the oath bindeth not at all. But yet some superiors declaration of so much, is therefore necessary; because it is most dangerous to permit unto every simple and private man's own discretion and judgement; how far, and where he need or need not, to perform his promissory oaths. And in the later of the cases excepted, an 1 Num. 30. per totuin ferè. husband or father (before he hath given any express, or implied ratification) may (even by Gods own law) discharge and disannul his wives oaths and vows, or his daughters, being made in her youth, and in his house (that is under his power) of what sort and quality soever they be, yea though such promissory oaths have been 2 Ibid. v. 14. made by them, to humble the soul. and then by reason of such disallowance there of by their superior, it is there said: The Lord will forgive her, this breach of her oath and vow made. Now because in any (saving in these excepted cases) this kind of oath is simply undispensable; therefore we do detest the presumption of the bishop of Rome; who taketh upon him oftentimes to commute even this kind of oaths and vows (as he saith) into better. and so by this shift of descant, he pretendeth to discharge men from their formal oaths, by them advisedly taken and made, to the glory of God, and for the benefit of others. The second sort of those four kinds of promissory oaths are such; as if a man should perform; he should doubly sin. which point I have somewhat touched in the question next going afore. yet lest a man do err herein, by mistaking; it is holden very requisite, that he consult with wise & learned Divines; both to resolve him, whether such oath be simply unlawful by him to be performed; and also to advise him, what course he is to take in respect of his soul and conscience; for his oath so unlawfully, and unjustly made. In these unlawful oaths, we think that superiors whether Civil or Ecclesiastical, not only may and aught to discharge the parties thereof, if they be scrupulous and desire it; but also may and aught, to disannul and make them void, though the parties themselves be unwilling thereunto. And so we find, that a 1 34. Edw. 3. ca 9 Parliament here in England did enact in these words, viz. That all alliances and covins of Masons and Carpenters, and Congregations, Chapters, ordinances, and oaths amongst them made, or to be made: shall be from henceforth void, and wholly anulled. The reason of this disannulling of all such oaths was; for that they were apparently derogatory, to the public good of the Common wealth. With these kinds of oaths, the man of Rome not only dispenseth when they are already made, which were tolerable amongst them of his own only proper jurisdiction; but also (in the pride of his heart, exalting himself above all that is called God) he dispenseth with men aforehand, to make such unlawful oaths and vows: and namely of marriages, and also to remain in them, being within the degrees levitical, which by God himself are prohibited plainly. yet because (for very shame) he seldom doth dispense with marriages contracted, or to be contracted inter ascendentes & descendentes; as the father to marry the daughter or his niece, etc. or the son to marry his mother, grandmother, etc. or yet in primo gradu transuersali aequali, as the brother to marry the sister: therefore the Schoolmen and Canonists his Parasites (but especially since the great case fell out betwixt king H. 8. and Katherine of Castill, his deceased brother's widow) have been contented to turn those their former old songs; of Papa potest, quicquid Deus ipse potest, and potest tollere ius Naturae; and (instead thereof) to say 2 Covarravias'. now; that in those aforesaid degrees of consanguinity (because they are of the law of nature) the Pope (their unholy father) can not dispense withal. Nevertheless, they do still no less resolutely, then impudently hold, that the prohibitions in the rest of the 3 Leu. 18. ca 〈◊〉. 20. levitical degrees are not of the law of nature; and therefore to be, by the Pope dispensable. But if they be laws Ceremonial, they are abrogated by Christ, and need no dispensation of any man's. If judicial, than they bind none precisely, but the people and Common weal of the jews: but if they be Moral laws (which only remaineth, and of which sort in deed they are) then consequently are they of the law of nature. and, that the said prohibitions be in deed Moral laws, and of the law of Nature: appeareth by the words of God himself, generally testifying of them all, that for such abominable & incestuous matches as be there specified and forbidden; he did cast out the Canaanites and other people of the land, before the Israelites. But they, being heathens, had none other law but the law of nature to take knowledge of, or to bind them; and therefore could not for those pollutions have been justly punished; if the prohibitions of them, had not been by the law of Nature, which bindeth all men indifferently. In the third case, videlicet, when a promissory oath tendeth only to the profit and benefit of some particular person, to whom such promise is made (as namely an oath of a Soldier to his General, of a Subject to his Prince, of a Tenant to his Lord, or of a bondman to his Master) it is generally holden; that he to whose only behoof it was made, may sufficiently again discharge it. because it is intended, the promise is (in deed) then performed unto the superior, when it is disposed of according to his pleasure, and as he liketh best of. The fourth and last aforesaid sort of oaths promissory, is the special subject, wherein (if in any) a dispensation may properly have place. To dispense, or to discharge a man from an oath taken; hath two divers significations and acceptions. for it is taken, either for a release of the very bond of the oath, so that the party should no more (before God) be tied thereunto: or else for a sound interpretation and declaration, that upon some event ensuing, or discovered unto us afterward, or other considerable circumstance; such oath doth, not necessarily (before God) require a performance. A promissory oath is made, either for confirmation of some thing, unto the performance whereof, we are (otherwise also) bound by God's law, or by the law of nature: or of such, as for accomplishing whereof, we are beside our oath, tied by positive law of man: or of such, as otherwise then by oath, we (no way) stood bound to fulfil. The last of these three is also of two sorts: for it either concerneth matter some way tending to the service of God, and humbling of ourselves before him, voluntarily by us promised; or else matter human and civil only, by our oath confirmed. In the first of those three last, wherein besides our oath, we are bound by God's law, or by the law of nature; a dispensation by way of release of the bond of the oath cannot by any humane authority be given. for else, a man might (hereby) be set at liberty, not only to break the law of God and nature, which is eternal and immutable: but to go against his own oath also: which, being Praeceptum juris Divini, is also (in that sense) undispensable. Except a man should absurdly imagine, as the heathen Romans did of a water, that was in Via Appia, consecrated unto Mercury; for they 1 Alex. ab Alexand. Genial. dier. were so besotted as to think, if a man did besprinkle his head with a Laurel branch dipped in that water, therewith calling upon Mercury; that by such expiation, he was clearly discharged from any breach of oath, and from perjury. But as dispensation is taken for a sound and true interpretation of those laws, how far they reach, and where the general words of them ought to cease; it hath place even in these; whether they be precepts Affirmative or Negative, that rule of the Schoolmen notwithstanding, videlicet; Praecepta divina negativa obligant semper & ad semper: Praecepta affirmativa licet semper, tamen non ad semper. For example's sake; first in Precepts Negative, contained in God's law: if a man shall swear for more precise observation of that commandment, Thou shalt not kill; that he will never shed any man's blood; yet, if in necessary defence of his 2 l. ut vim. ff. de just. & iure. & ibi gl. & DD. person or 3 jason in d. l. qui dicit eum esse communem. & Diaz, reg. 597. goods, he shall afterward kill a thief, the Superior may (in this case) by way of such dispensation lawfully declare; that he is not (hereby) to be holden guilty of the breach of that commandment, or of his oath. Likewise if a married man who voweth and sweareth never to company with any woman, but his wife, during their two lives, shall (without any negligence or default of his) be herein wickedly deceived by another woman, which is by him taken to be his own wife: it may (for his satisfaction) by such dispensation be determined & declared, that hereby he hath neither offended against God's law, nor his oath. In precepts affirmative, contained in God's law: 4 Matth. 12. v. 5. 8. Christ himself hath declared, that the Priests employed on the Saboth, about the sacrifices of the Temple, or those who (on that day) 5 joh. 7. vers. 23. circumcised children; and others 2 Matth. 12. vers. 10. 12. Marc. 3. verse 4. Luc. 6. vers. 9 doing on that day, the necessary works of charity; or that, 3 Luc. 13. v. 15. Luc. 14. vers. 5. whereby man's life is necessarily sustained, do not violate the Saboth therein. If our parents, to whom we do owe and (perhaps) have also sworn honour and obedience; shall command any 4 l. Lucius. ff. de cod. & Demonst. L. nepos. ff. de verbis signific. L. silius. ff. de cond. institut. unlawful or dishonest thing, as to betray our Prince and Country, etc. it is assured, that in not performance hereof, it may and aught to be declared, neither God's commandment nor our oaths, to be thereby violated. Though a judge should swear, to accept evermore (in judgement) of the depositions of two witnesses, produced for proof of any matter, so they be not excepted against justly by the adverse party: according to that saying of our Saviour Christ; In the mouth of two or three witnesses every word shall be established: Nevertheless, if according to direction of man's 5 Iust. de Testam. §. 1. c. relatum etc. cum esses ex. d. tit. positive law in this behalf; he shall reject the testimony of children, being but ten or twelve years of age; it may and aught to be declared, that herein he doth not offend against the oath by him taken. The like is true of any oath in general, because the commandment of God, for performance thereof, is not so 6 L. non dubium. C. de legibus. peremptory, that it doth bind us to do any thing, which is in itself wicked: for non 7 c. non est. de reg. juris in 6. est obligatorium contrabonos mores praestitum juramentum. The like may be said ofsundrie laws of nature: wherein this kind of dispensation by interpretation hath place; no less than in the former: and are needless, to be further here exemplified. Touching the second member of the matters of promissory oaths, viz. whereby an oath is taken for a fuller confirmation of that, whereunto we are also bound by positive law: it is much more assured, that according to the second acception of dispensation; such oath may be interpreted and declared not to bind; where, indeed it ought not, by the true meaning of the Law; howsoever the generality, or pregnancy of the words, may strongly (perhaps) seem to weigh unto the contrary. Yea and in the first sense, a dispensation of relaxation by a Sovereign Prince or other thereunto authorized may be granted; for release of an oath, made in performance of some positive law. But this is only by way of abrogating such Law or Statute; either altogether, or as towards that person, or for some particular action and time; and not, by way of releasing the very bond of the oath, which is not subject to man's power. For when such Law or Statute is disannulled and gone (as local Statutes of Colleges etc. may be even here in England) than the Oath made unto them, as unto Laws or Statutes; must needs (withal) so far cease, and be released. When the matter is such, as for performance whereof (otherwise then by our voluntary oath taken) we no way stood bound, whether it be in Actions Religious or Civil: the bond of our Oath (if in very truth, we did at first, in foro poli stand tied) may not by any man be released. Nevertheless a dispensation of true interpretation, hath place in this very especially, and such interpretation may be needful, sometimes in respect of the very matter promised by Oath to be performed, being (indeed) no due matter for an oath. As the oath for single life, vowed by such, as have not the special gift of Continency. Sometimes it may be requisite, in respect of after-events: as if I swear and vow to God, to keep some certain spare and so strait a diet; as (through weakness and infirmities after happening) I can not possibly observe, without apparent danger of the loss of my life. And sometimes, this kind of dispensation may have necessary place; whereas some thing doth after fall out, or (at least) is discovered; which I never forethought, or if I had, by all probability, I would never have vowed or undertaken so much. Examples of these you may frame many, out of that, which hath been answered to that question; whether all promissory oaths, were absolutely to be kept, or no? Lastly, some doubt may be stirred; whether a Christian may capitulate or contract, (by mutual oaths given and taken) with a Pagan or heathen Prince, or other private person, that taketh his oath by Idols or by false gods: seeing in so swearing, he sinneth greatly, in that he giveth (thereby) that reverence unto them, which is only due, to the true and everliving God? This very question was asked of Saint 1 Aug. ep. 154. ad Publicolam. Augustine by Publicola: and he did thus answer him: he that useth (sayeth he) the credit of him that sweareth by false gods, not unto evil, but unto good: he doth not communicate with that sin of swearing by devils: but is party only to those lawful covenants, wherein the other performeth, what he swore. Yet if a Christian should (any way) induce or draw an other to swear by them, herein he should sin grievously. And lest any man weigh this learned father's judgement herein over light, we have also an example hereof in Scripture, and uncontrolled: for 2 Genes. 31. vers. 53. jacob took an oath of Laban, swearing by the God of Nachor. Now we 3 josh. 24. vers. 2. read in Scripture, that this Nachor was an Idolater, and served strange gods. Hitherto of some doubts that may be moved touching oaths. CHAP. III. Division of Oaths according to the outward form of taking them: according to the matter and inward form of them: with plain description of every kind of oath. NExt followeth to be discussed how many sorts, and several kinds of oaths there be; and how they differ one from another. An Oath, as touching the outward form of taking it; is either verbally or corporally taken. Uerball, when by words or speech only, we conceive the form of the Oath; as, God is my witness; The Lord liveth, etc. corporal, when by some outward gesture or act in taking the Oath; we testify that we accept of it, as it is ministered. as, by laying hand on a book, on our breast, or under the thigh of him that ministereth it: as Abraham's servant did. Again, some oath is solemn juramentum; and others be not. that oath is called 4 L. 3. & 5. l. in fine & 34. §. qui iusiurandum. ff. de iurciurando. solemn, which hath certain solennities prescribed and indited, either by the parties themselves, by the judge, or by the Law, with certain set-conceived words, from which he that sweareth, may not vary. but if he do, his Oath shall not be accepted. All these may be given and taken, in two several sorts. Either simply; as thus: I speak it before God etc. or with some imprecation to ourselves, or others, whom we hold very dear unto us, adjoined thereunto; as thus: So and so 1 1. Reg. ca 3. do God unto me and more. for thereby we do expressly as it were devote, and bind ourselves or them, unto the punishment of God; if that be not true, which we swear. Of this kind I find examples in Scripture, that 2 1. Sam. 14. vers. 24. Neh. 5. vers. 12, 13. some were so imposed by Magistrates; and 3 1. Sam. 14. verse. othersome were voluntarily so taken. The examples of them both, you may see in their several places according to the directions given by quotations in the margin. An example of an oath taken voluntarily by imprecation, we also find in the 4 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 saith, I call God to witness unto my soul; which is to execrate his own soul, if he had not sworn truly. So much of the outward form of an oath. There are beside that, two principal divisions of an oath: the one respecting the matter of it, according to the circumstance of time; the other, which considereth the inward form, with other circumstances. For the first, every oath, is either concerning a thing past or present: and this is called Assertorium juramentum: or else touching a thing to come, and it is called juramentum promissorium. For the second division; an oath may be made, either judicially or extraiudicially. And both these (in oaths promissory) are either Confirmatoria actus futuri; as (in judgement) that I will use no vain cavillations and delays: or forth of judgement, as an oath of allegiance: or they are obligationis introductoria, when the very oath worketh the bond in law, for something (afterward) to be done. But this bond is only by the 5 Tot. tit. ex. de jure iurando. Canon, and not by the Civil laws, saving in one case that I can call to mind: which is the 6 L. ut iurisiurandi. ff. de operis libertorum. oath of a man once a bondslave, and now set free (called libertus) that is made unto his patron, to perform some works or other thing unto him. For in this case, the very oath is obligationis introductorium: and maketh the freed man bound (by that Law) to perform it, in vim turamenti. Furthermore a promissory oath (whether taken in judgement or out of judgement) is either necessary; as when it is imposed by the Magistrate upon his subject: or it is voluntary. An oath assertory (being of chiefest use, and therefore most to be stood upon and explained) is also either extraiudiciall or judicial. and both these, be either necessary, or voluntary. The judicial necessary oath Assertory is sometimes given to the defendant when there is (formally) another party beside in judgement; & sometimes, when there is no such party beside; but the judge that proceedeth ex officio. When there is a party, it is either juramentum calumniae, veritatis or purgationis: but if there be no such party beside; it is either purgatorium tantum, or partim purgatorium & partim inquisitorium. The judicial and voluntary oath; is either suppletorium, aestimatortum in litem, or decisorium. Which last, is oftentimes confounded with iudiciale juramentum, without further addition: by reason of the more frequent use of it, in Civil law courts in elder times; when men durst trust one another's conscience better, than now (generally) they have cause to do. The decisory oath, is either delatum or relatum by the one of the parties, that are in suit together. Now I mind briefly and plainly (without tying myself to any exact definitions) to describe these unto you; with only quotations of the Scripture (where examples of them may be found as I conceive it) for avoiding of tediousness, by particular rehearsal. 1 Gen. 43. v. 3. 1. Sam. 25. v. 26. 1. San. 26. v. 10, 16. 1. Sam. 29. v. 6. 2. Sam. 4. v. 9 2. Sam. 19 v. 7. assertory is, when (by oath) any thing past or present, is affirmed or denied to be. A 2 Gen. 24. v. 3. & 9 Gen. 47. v. 31. Levit. 5. v. 4. Num. 30. v. 3. & 14. josh. 1. v 6. josh. 2. v. 12. josh. 2. v. 22. josh. 9 v. 15. 18. 19 20. judge 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. promissory oath is, when any thing is (by oath) promised to be done, or not done. In a promissory oath, there is a double bond before God: the one is, that it is sin, if truth be wanting: and the other is, that he is bound to do: hat, which he promiseth. But in an assertory oath, there is no bond, but only this; that the matter be true, which is affirmed thereby, or denied. The effect of a promissory oath is, that he is bound to make that true, which he hath sworn: but if it were not in his power to do it; then there wanted in such oath, judgement and discretion; except it were in his power to do it when he swore, but became impossible by some casual event after happening, that could not be before thought on. In which case nevertheless, he is bound to perform it, as far forth as lieth any way in him, so the oath be such, which did bind, as carrying with it none impiety. But if the promissory oath be made touching such a thing, as was in his power; yet such as ought not to be done either because it was in itself evil, or is an hindrance or let of something that is good: then in such an oath, justice is wanting. An 1 Gen. 21. v. 31. Gen. 26. v. 31. judg. 21. v. 1. 1. Sam. 19 v. 6. 1. San 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. jerem. 38. v. 16. jerem. 40. v. 9 Hebr. 6. v. 16. & 17. oath promissory and confirmatory, is; when it is made for more full assurance, of some act to be done, or not to be done. A 2 1. Sam. 14. v. 24. & 28. 1. San. 24. v. 22. 23. 1. Reg. 2. v. 42. 43. Ezra 10. v. 5. Nehe. 5. v. 12. josh. 23. v. 7. In these words: Nor cause to swear by them. necessary oath (generally) whether there be two parties formally; or the judge proceedeth ex officio; is that, which a Magistrate causeth those that be under his authority to take, for some convenient purpose and end. In law it is defined to be 3 Postilla in v. iureiur. L. in bonae fidei C. de reb. cred. & iureiur. such, as you neither may refer or put over to the other party, to take his oath to the contrary: nor yet may be refused by yourself. For 4 L. 11. § quita●…it. ff. de interrog. act. & L. 11. de periurio. ff de in litem iurando. ibi, ex necessitate. if you do, you shall be holden as convicted, and the suit must go against you. This necessary oath, is tendered by the judge, whensoever he seethe cause in equity to move him; albeit no party make petition: and then it is called Nobile vel merum judicis officium. or else it is tendered and ministered by him, at the petition of a party: and then it is termed mercenarium judicis officium, because thereby he seemeth, but as it were to serve his turn, that maketh the petition. The first of this necessary sort, where there be (formally) two parties; is juramentum calumniae. which is, when one is urged to swear, that he moves a cause, allegeth or answereth some judicial matter, bona fide, that is truly, directly, and not captiously: and that he believes it to be true: and thinks he can (indeed) make proof of it: and that he doth it not to vex his adversary, but to relieve himself: and not of any purpose, to delay the suit. Necessarium juramentum veritatis is 5 Mascard. de probat. vol. 1. pag. 18. nu. 6. that; which is ministered to witnesses: and that also which is ministered to the party, who is to answer unto Positions or Articles: And that also is so called, whereby the judge doth interrogate and examine either of the parties or the witnesses; to the intent, to be more fully instructed in the cause. 1 1. Reg. 8. v. 31. luramentum purgationis (where there be such parties) is; when in a cause criminally moved by some accuser or party: the judge (upon defect of sufficient proof) doth tender to the defendant an oath to clear himself. This, though it be established by the Canon; yet of long time it hath been in use aswell in Civil or Temporal courts (on the other side of the Sea) as in Ecclesiastical: so that if the defendant shall refuse to take it in either; he is holden pro confesso, & convicto. The other oath of purgation or clearing simply, when there is no formal party in judgement, besides the defendant; is that, which (by reason of fame, scandal, vehement presumption, or upon some other of those means that (as I have showed afore) do open a way to Enquirie ex officio) the judge doth give unto the defendant, to his clearing of the very crime objected: without any meaning then to seek further proofs of that crime, after the defendant hath taken such oath. The other oath necessary, being partly of 2 Levit. 5. v. 1. Num. 5. v. 12. & sic deinceps. josh. 7. v. 19 1. Sam. 14. v. 43. clearing, and partly of further enquiry is that; which (as is next aforesaid) is given to the defendant upon criminal matter objected and upon the circumstances thereof: yea (oftentimes) with purpose to make further proof, in case the defendant shall not confess it, or not so fully in material circumstances, as the judge hath cause to think, may by witnesses or otherwise be proved. Yet if he shall confess so far, as is thought may be proved; then (according to the quality of such his answer) he is presently either proceeded with thereupon unto a judgement, or else dismissed as cleared thereof, by his oath. The examples and other justification hereof, shall more largely (God willing) be showed, in their proper place hereafter. For this is the oath, that the Innovators do so much condemn, and exclaim against. But now touching voluntary judicial oaths, whereof Suppletorium is that, which is tendered to the plaintiff or defendant (according to the quality of the cause) in a civil matter, for supply of proof, made semiplenè tantùm: as (happily) by one singular witness, being without all iu●…t exce●…tion. juramentum in litem, or Aestimatorium is then 1 L. 1. cum l. sequ. ff. de in litem iurando. given by the judge; when the defendant doth not restore the very thing that is in demand. in which respect he is to be condemned in the value thereof, according to such rate, as the plaintiff is endamaged, taking it upon his oath: yet so, as the judge (by equity) may tax and moderate the quantity of the sum, which he may not exceed; and also when the party hath sworn, the judge may defalk thereof, as he seethe cause in equity. Decisorium juramentum delatum is that; which 2 Exod. 22. v. 11. 1. Reg. 8. v. 31. Hebr. 6. v. 16. either the one or the other of the parties, first offereth unto his adversary to take, according to that he affirmeth or standeth in. perhaps upon confidence of his good conscience, or for want of better proof. So that, if he to whom it is so deferred, shall take such oath: then must the matter be adjudged, according to his oath; as if the parties, had so agreed the cause. But if he shall refuse it, and yet will not refer it, that is, will not put it over unto his oath; that first made the offer: then shall he be overthrown in the cause. So that to refer an oath, is nothing else; but to offer it back; to be decided by his oath (according to his own issue) that first made the offer. 3 L. iusiurandum. 34. § ait Praetor. ff. eodem. & l. generaliter. 12. § se liuramento. C. d. But if upon such referring it over back again, he also that made the first offer, will not take the oath: then he that so referred it over again, shall have judgement pass with him, as if he himself had sworn, when it was first offered him: for maximae turpitudinis est, nec delatum subire, nec referre juramentum. Examples of these decisory oaths, there be also at the common law: for, 4 19 H. 6. 43. where the defendant desires that the plaintiff may be examined or sworn; this is peremptory to the plaintiff in this point: and so is the wager of law ex part defendentis. By the custom of London, if the defendant desire to have the plaintiff swear to his declaration, and he do it, the defendant is thereupon condemned. But this oath decisorie (at the 5 jul. Clarus. li. 5. § finali. qu. 63. civil Law) is never used in matters criminal, except they be moved civilly (not criminally) that is for the plaintiffs private amends and satisfaction: or else the cause be but of small value: or the proceeding in such criminal cause criminally; be referred and intended, to no corporal, but to a pecuniary punishment or fine only. Thus far for a general understanding of the nature of every several kind of oath. CHAP. FOUR That the ceremonies used in taking and giving corporal oaths, with laying hands upon the Bible or Testament, and swearing by the contents of it, are not unlawful. THe first challenge (now coming to be spoken of) that is made by some of them against the ceremony used through this Realm in all corporal oaths taken either in Temporal or in Ecclesiastical Courts; is the laying of our hands upon a book, when we take the oath. For the better approbation hereof, it is meet to consider the general end of it, the particular use of it, and the general practice of that or of the like ceremony, reported both in Scripture, and in other writers to have been used in such action. The general and chief end of this, or of any the like ceremony used in this action, is to signify thereby, that we do then advisedly attend, and give heed to the oath wherewith we are charged, and that we do accept of it, and bind ourselves in sort as it is given. The use of this in particular; is to strike a more advised fear & reverence into us: when we consider the reverence due to an oath, as it is described in that book; & the curses there threatened against those, that for swear themselves, or shall take the name of God vainly. This use of such corporal ceremony in taking of an oath is touched in the 1 L. 3. C. si minor se maiorem dixerit. civil law, out of which it is gathered; that, by touching and by corporal taking of it, the oath is holden to be more inviolable, and the harder (upon any plea) to be recalled. The practice of corporal oaths, taken with some like effectual and significant ceremony by the godly; is to be found in Scripture. When 1 Gen. 24. v. 3. & 9 Abraham caused his servant (that was under his authority) to take a corporal, promissory and necessary oath, for the finding out and fetching of a wife for his son Isaac of his own kindred; he willed him to lay his hand under his thigh. with this ceremony likewise 2 Gen. 47. v. 29. did jacob take an oath of his son joseph; that he should not bury him in Egypt; thereby as it were signifying, that simply they were to take the oath, even as they looked for Salvation in the promised Messiah, that was to descend of those two patriarchs, according to the flesh. So doth Saint 3 Aug. de civit. Dei. lib. 16. ca 33 Augustine interpret this ceremony: The hand (saith he) put under the thigh did signify, that the Lord (according to the flesh) was to descend from that person. Another ceremony (besides this) we find used in holy Scripture, when such corporal and more impressive oath was taken: and that is the lifting up of the hand, towards heaven: a gesture so commonly used, that sometimes it is taken for the oath itself. For Abraham 4 Gen. 14. v. 22. 23. said to the king of Sodom, I have lift up my hand unto the Lord, the most high God, possessor of heaven and earth, that I will not, etc. Likewise God saith in 5 Deut. 32. v. 40. Deuteronomie: I lift up mine hand to heaven and say, I live for ever. And likewise where it is 6 Exod. 6. v. 7. said: I will bring you into the land, which I lift up mine hand (id est, swore) that I would give to Abraham, Isaac, and jacob. So the Prophet Ezechiel: I 7 Ezech. 20. v. 15 lift up mine hand unto them in the wilderness; that I would not bring them into the land, etc. That these were oaths taken with that significant ceremony, another 8 Dan. 12. v. 7. Prophet declareth. I heard the man clothed in linen, which was upon the waters of the River; when he held up his right hand and his left hand unto heaven, and swore by him that liveth for ever. with the same pertinent gesture doth the Angel in 9 Apoc. 10. v. 5. the Revelation swear by the living God, & lifted up his hands towards heaven; where (by immutable providence) that was decreed: & from whence cometh swift judgement upon all, that make or love leasings. This gesture in taking a corporal oath was so usual, that from the people of God, it seemeth to have been derived down, and taken up even with the Gentiles. — 1 Virgil. lib 12 Aenead. sequitur sic deinde Latinus, Suspiciens caelum, tenditque ad syderadextram: Haec eadem (Aenea) terram, mare, sydera, iuro: as Virgil writeth. And no less is by some thought to be meant in the Digests of the civil Law, by the word 2 L. quidam. ff. de probationibus. emissamanus. Yea, and the practice of that very ceremony of swearing with laying hand upon the holy Gospels; was both had, and allowed by the Fathers in the Primitive Church, as appeareth by Saint 3 Aug ad Publicol. epist. 154. Augustine in his Epistle ad Publicolam. In the times of the ancient Christian Emperors, it was received and used in Civil Courts. An oath (saith 4 Novel. justin. 8. vel 9 justinian) is then said to be corporally taken; when a man in swearing, doth touch with his hand, the holy Gospels. And again: 5 L. generaliter. § in omnibus. C. de rebus credit. & iureiur. Whether the oath be to be taken in tublike judgement, or in houses, or in holy Oratories, or with touching the holy Scriptures, etc. And it is provided, not 6 L. rem non novam. § patroni. C. de judicijs. only that they shall be taken tactis sacrosanctis Euangelijs: but that 7 Ibidem ante. the Scriptures shall lie continually before the judges sitting in judgement; that both they and the suitors, may be put in mind; that the judgement is Gods, and done in his presence. For touching the holy Gospels at the taking of an oath: we have other testimonies also recorded in 8 L. 2. C. de juramento propter calumniam dando. & § 1. & § nulli de sanctiss. ep. in Auth. ancient laws. So for the laying of holy Scriptures before them, at the time of taking oath, both 9 Auth. sed judex. C. de episcopis & clericis. c. fin. de iuram. calumniae. Clem. 1. de homicide. Clem. 1. § porrò de haereticis. out of Law and Canons. And by the most general custom of all Christendom; the same ceremony in taking a corporal oath, is until this day continued. But it is 10 Panorm. in c. & li Christus. de iureiur. reported, that in Italy, they use to lay their hand upon any Book, Bible, or other. And it seemeth by a 11 Duarenus in tit. ft. de iureiur. ca 11. French Writer, that they which swear there, do use to hold up their hand towards heaven: thereby signifying, that they call God to witness. In some other places they take a corporal oath, by laying their hand on their breast. But where the Treatisor reprehendeth at taking an oath a vain ceremony and fond invention (as he calleth it) of stretching out three middle fingers upon the book, & the thumb and little finger under it; with some mystery (by him supposed) thereby to be signified, as if hereby this Church of England or present regiment thereof (which he oppugneth) were therein to be touched: Truly he might with less show of humour, have spared that vain and fond invention; insomuch as no such matter is either by law commanded, by judges urged, or by any others practised. One other Ceremony or manner of taking an oath, is by some of them also reprehended: that is, for swearing by the book, or by the contents of it. We do find in a very old statute of this Realm (termed the award of Kenelworth) these 1 51. Hen. 3. words: All that have to do in this b●…halfe, shall s●…eare upon the holy Gospels of God, that none shall take revengement, etc. by occasion of the Commotion: And in the same Statute, not only upon, but also by the holy Gospels. For it is there thus 2 Ibidem. contained, Those that have been robbers in wars & roads, and have nothing; shall come and swear by the holy Gospels of God (finding sufficient surety) that from henceforth they shall keep the peace, and suffer satisfaction, and penance, after the judgement of the Church. where (by the way) may be noted, that it seemeth Ordinaries then did, and might enjoin penance and satisfaction to parties delinquent; for wrongs done by them, in temporal goods and chattels. The manner of swearing by the 3 1. Eliz. ca 1. contents of the Book, is prescribed to be used in the oath of the Queen's supremacy. But is this the only cause (think ye) that some of that suit, refuse wholly to take it, or come very hardly unto it? Some of them mince it, and gloze upon it, and I know not with how many interpretations, limitations, and protestations, do (in very deed) take the whole force and true meaning of it away, as deeply as the Papists do, though in other respects. But it will be said, the contents of the Book be creatures, and therefore not lawful to swear by them. Truly it must be confessed, that simply to swear by a creature, is 4 Mat. 5. v. 34. 35. & 36. forbidden. Swear not at all, neither by heaven, etc. nor by earth, etc. saith our Saviour in the Gospel: which must be understood, to be forbidden in any other creature, as well as in those. The prophet Esay saith: He 5 Esay 65. v. 16. that sweareth in the land, shall swear by the God of truth: jeremy 6 jere. 5. v. 7. saith, How should I spare thee for this; thy children have for saken me and sworn by them that are no gods? Therefore are they 7 jere. 12. v. 16. taxed that swear by Baal, and are taught to swear thus, the Lord liveth. Saint Augustine, as to this purpose, writeth 8 Aug ad Publicol. epist. 154. thus: The very swearing by creatures is evil, because it is forbidden by God: but to keep that thou so swearest is good; that thereby thou may avoid the sins of lying, and deceit. The godly ancient 1 E●…seb. lib 4. hist. ca 15. Martyr Polycarpus, did rather choose to be burned to afhes, then to swear by the fortune of Caesar. Saint 2 Hierom. in 5. Matth. Hierome sayeth: He that sweareth, either worshippeth or loveth him, by whom he sweareth. The decrees 3 c. & iurabunt. c. considera c. clericum. c. si quis per. etc. mover te. § sicut etiam. 22. qu. p●…ima. of Gratian do gather the same prohibition, against swearing by creatures; out of sundry old Fathers, and Counsels. Swearing is a kind of religious act, whereby we give worship to God, as most true, most just, and knowing all things; and therefore to be taken only in his name. Yet (these reasons notwithstanding) we find sundry examples, of virtuous and godly personages in the Scriptures; that have sworn by creatures. First it may seem, that God himself so sweareth: where it 4 Amos. 8. ver. 7. is said, the Lord hath sworn by the excellency of jacob. joseph did 5 Gene. 42. V 15. swear thus, By the life of Pharaoh, ye shall not go hence, except your youngest brother come hither. In the communication and treaty of league betwixt David and jonathan, it is said thus: And David swore again, etc. as 6 1. Sam. 20. V 5. the Lord liveth, and as thy soul liveth, there is but a step, between me & death. So did Abigail 7 1. Sam. 25. vers. 26. swear before David: as the Lord liveth, & as thy soul liveth. The Patriarch jacob at the league betwixt him and Laban, swore, by the fear of his father 8 Gen 31. vers. 53 Isaac. And Urias swore thus unto king David, 9 2. Sam. 11. vers. 11. as thou livest, and thy soul liveth. The like oath doth Elisha 10 2. Reg. ca 2. vers. 3. & 6. use to Eliah the Prophet twice in one Chapter; as the Lord liveth, and as thy soul liveth, I will not leave thee. The Sunamite woman sweareth 11 2. Reg. ca 4. vers. 30. thus to Elisha the Prophet; as the Lord liveth, and as thy soul liveth, I will not leave thee. Saint Paul 12 1. Cor. 15. vers. 31. writeth thus: by our rejoicing which I have in Christ jesus our Lord, I die daily. This doth S. 13 Aug. in 1. ca ad Galatas. & ser. 30. de verbis Apostoli. Augustine affirm, and also prove to be an oath in two several places of his works. And so doth 14 Beda in 1. Cor. ca 15. Beda also our countryman, and an ancient Writer. Which none of these holy persons would have done, or suffered in their presence to be done; if it had been either idolatrous or blasphemous. In the times of the Primitive Church; we find records of this form of oath taken, viz. by the holy Gospels. Saint 15 Aug. ad Publicol. epist. 154. Augustine saith, It is a greater matter to swear by God, then to swear by the Gospels. which proveth, that this form of Oath was then in use, and that without reprehension. But Saint 1 Chrysost. Hom. 44. in Matth. in opere imperfecto. chrysostom more fully: If (saith he) there be any cause at all, it is counted but a light matter to swear by God: but he that sweareth by the Gospels, is thought to have done a far greater matter: to whom must be said, Ye fools, the Scriptures were made for God, not God for the Scriptures. The same ancient Father elsewhere also noteth, that manner of ceremony to have been used in his time, in taking corporal oaths: whereas going about to reclaim men from that usual deferring of decisory oaths unto others; he 2 Chrys. Hom. 15. ad pop. Antioch. thus saith: At least (sayeth he) if nothing else will move thee, have a reverend regard of the very Book, which thou reachest to him to swear by; and peruse but the Gospel which thou takest in thine hands, and urgest him to swear by, etc. Ancient Christian Emperors did set down by law; that this form of oath should be 3 justinian. Nou. Coll. 2. const. 3. used. viz. by God Almighty the Father, Son, and holy Ghost, etc. and by the four Gospels, that I do hold in mine hand. And other Emperors (afore) 4 Arcad. & Ho. norius A A. l. 41. C. de transactio. nibus. anno Christi 395. allowed even of this kind of oath: per salutem principis. For resolution of this doubt, I cannot disallow of the Schoolman's answer, that whether the oath be expressly by God, or by implication, it is not material; so that we do not swear simply by the creature. Now there is no man so full of cavil, who will conceive when we swear to the oath of Supremacy thus: So God help us, and by the contents of the book, or, By the holy Gospels; that thereby we swear, either by the cover, paper, ink, or form of letters; but rather by the wisdom and spirit of God, by which it was indicted: and withal, as it were renouncing all the promises, and calling upon us all the curses therein made, if we swear not truly. Therefore ( 5 Bonaventura. Angel. de Clavasio, & alij. say they) there is relatio ad Deum actualis in an oath, when both in words and meaning we swear by him: and when we swear by some excellent creature, not simply, but in respect as there shineth in it a great measure of divine truth, or Majesty, than it is called relatio habitudinalis ad Deum, a secret implied reference to God himself. For as the good that is done to a Prophet, or Disciple, in the name of a Prophet or Disciple; and the despite that is done to them, or unto the poor, redoundeth unto God his Creator, and is said in Scripture to be done unto God himself: So when we swear by a creature, with an especial reference to God the Creator: it is intended (indeed) as done by him, and in his holy name. This their distinction seemeth well confirmed by some of the places before alleged. Where God is said to swear by the excellency of jacob; it cannot be understood, that it was by any worldly excellency, wherein jacob excelled; but (indeed) was by himself, as those words to the 1 Heb. 6. ver. 13. Hebrues do testify: because God had no greater to swear by, he swore by himself. jacobs' oath to Laban, was not by any accidental conceit or passion of his father Isaac's mind: but by the very object of his religious fear, that is by God himself. In like sort, those oaths by the life of the soul of such as they spoke unto, and that which was by Paul's retoycing; must needs be understood. For the oath which 2 1. Sam. 20. ver. 3 David swore unto jonathan, as God liveth, and as thy soul liveth; is (after) in the 3 Ibidem. vers. 42. same Chapter said to be sworn, in the name of the Lord. Therefore where joseph swore by the life of Pharaoh, it may not be taken as if he meant (without any reference to God) to swear simply by acreature; but it was either by way of devoting, and as it were binding of the Prince's life unto God; a thing which (thereby) he signified to them, that he held most dear unto him: or else by way of contesting, and calling to testimony the truth of divine justice; for execution whereof, the Princes of the earth are set: as some of the Schoolmen do answer it. Saint 4 Hom. 44. oper. imperfect. in Mat. chrysostom doth make the swearing by the Gospel's equivalent with the oath, that is made by God himself; where he confuteth the opinion of such, as thought it to be a greater matter to swear by the Gospels, than it was to swore by God. In which regard a 5 Innoc. in c. etsi Chr. de iureiur. Canonist sayeth: paria sunt jurare per Deum, ac. per fidem. Tyndall our countryman (in this behalf) well 6 Tyndall in 5. Matth. pag. 208. suorum operum. interpreteth the meaning of an oath, made by the holy Gospels: when thou swearest (saith he) by the gospel book, or Bible, the meaning is, that God, if thou lie, shall not fulfil unto thee the promises of mercy therein written: but contrariwise to bring upon thee all the curses, plagues, and vengeance therein threatened, unto the disobedient and evil doers. And when the name of a crcature (in which no such measure of divine majesty shineth, as doth in the holy Scriptures) is used in an oath; it is understood to be done with this reference unto Almighty God, whereof we do speak by Saint 1 Aug. de verbis Apostoli. Ser. 28. ca 6. Augustine's judgement. What is it (saith he) to s●…eare by God, but, Ius reddere Deo, to doeright to God? when thou swearest by thine own health or salvation, but to do right to them? But more fully and plainly afterward: When 2 Ibidem. a man saith thus; by mine health or salvation, he bindeth and gageth that unto God: when by his children, he pledgeth them unto God; that what he speaketh may fall upon their heads: if true, than truth; if false, than falsehood. Now seeing whatsoever a man in swearing nameth, whether his children, his own head, or his salvation, he bindeth it thereby unto God; then how much more doth he it, when he falsely sweareth by God himself? Yea when far more mean creatures then these be named in an oath, yet the same reference unto God, is taken to be retained. For the same learned 3 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 perjured: whereupon I infer, that many are deceived, who think in that the thing by which they swear, is of no value; therefore they are not guilty of perjury: truly in this case thou art altogether perjured, in that thou swearest falsely, by that thou takest not to be holy: if thou think the thing itself not to be holy; yet account him holy, to whom in that sort thou swearest: for when thou so swearest, thou dost not swear to thyself or unto a stone, but thou swearest to thy neighbour, thou swearest to a man before a stone; but dost thou not also swear before God? and albeit the stone do not hear thy words, yet God will punish thy falsehood. And Tyndall in the 4 Tynd. in 5. Matth. pag. 208. aforesaid place to like effect: When (saith he) thou swearest by any creature, as by bread or salt, the meaning is, that thou desirest; that the Creator thereof, shall avenge it of thee, if thou lie. Ulpianus, though a great Lawyer, yet but an Heathen man could see this meaning to be in such oaths: viz. both that we ought to swear by God; and that if our oath were conceived by any creature; yet it hath (for the most part) a respect unto God, and thereby binds, as if it were made by God himself. 5 L. 33. Qui per salutem. ff. de jure iurando. Qui per salutem suam jurat (sayeth he) per Deum jurare videtur; respectu eni●… Divini numinis it a jurat. Whereupon a great learned man of 1 Duarenus in tit. de iuteiurando. late years gathereth thus: whosoever sweareth, albeit he make no mention of God, yet is he intended to de●…ote and subject himself to the vengeance of God, if willingly he deceive. And other Heathens (though they named often●…mes something else which they held deate unto them, in taking their oaths) yet, by the light of nature could see thus much; that an oath was an honour proper to the everliving God. Therefore 2 Apuleius de Deo Socratis. Apuleius writeth thus: utrumque idoneum non est, per quod adiures utue per ista iurent, cum sit summi Deorum hic honor proprius: which he proveth out of Ennius (as 3 Lipsius' lib. 1. Elector. ca 18. Lipsius doth read it) in these words: Nam & iovis iurandum dicitur, ut ait Ennius. The verse which he meaneth, is alleged by Tully: Fides alma, apta pennis, iurandum iovis. The same etymology (of jusiurandum quasi iovis iurandum) doth Lipsius in the same place also prove, out of this verse of Naevius; Ius sacratum, iovis iurandum sagmine. So that we may conclude, if the contents of the holy Bible were to be accounted (in each respect) but a creature; yet with such regard, and necessary reference that it hath to God himself; it is neither unusual, nor unlawful. Thus much for the two opinions delivered against the ceremony in taking, and manner of charging by oath. CHAP. V The true issue of the next opinion in question: two sorts of crimes and offences prohibited: in what cases an oath (here spoken of) may not be ministered: and the manifold conveniency and necessity of an oath (sometimes) to be ministered in a cause criminal and penal unto the party: with some few objections, touching inconveniency thereof, answered. Now followeth the most principal challenge 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 judge having some one or more of those grounds treated of, and proved afore sufficient (in equity and law) to ground an Enquirie ex officio against a crime; doth (accordingly) proceed, and urgeth the party convented, to answer the matter and circumstances (whereon the Enquirie to the end of Purgation, or else to punishment and reformation is framed) upon his corporal oath; though the matter be criminal, & thereby may happen to be penal to himself, and perhaps unto others also. Now whether such oath may by a Magistrate lawfully be urged, and therefore not to be refused by the party; is the very issue of this question. Crimes and offences are of two sorts: they are either prohibita quia mala, that is, either mala pierce, in their own nature wicked, & therefore by laws forbidden: or such as of their own nature are not simply evil, but therefore made evil, because (for some public good end) they are forbidden by positive laws. Whether in both these sorts of crimes, those men do think, such oath to be unlawful, or but in the one of them, and in whether of the two; I have not yet heard any resolution; and therefore will bring my proofs 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 practice of any Court here used; that a man should be examined upon his oath, touching a crime, whereby his life or any of his limbs may be endangered. The reason why the laws thought it unreasonable to stretch it thus far, was for fear of perjury. because it cannot be intended of most men, but they will rather hazard an untrue oath; then either their life, or limbs. Skin for 1 job 2. V 4. skin (saith Satan to God) and all that ever a man hath, will he give for his life. And to this very purpose is the same text (not unaptly) alleged, even by the Treatisor himself. which maketh me the more to marvel at the Notegatherer (pretending to be both so great a Divine & Statesman also) that he could not see, this to be far the sounder opinion by divinity; and that he knew not the policy and custom of this Realm, to concur also therewith; howsoever he avouch the contrary, as 2 Part. 2. ca 10. pag. 93. afore is by me noted. The next caution is; that if the judge have probable cause to suspect the party to be such one, as will 3 jul. Clar. lib. 5. § finali. q. 45. forswear himself, rather than tell a truth: there he ought also to abstain from tendering oath unto him, especially touching a crime. This not only by law is required, but (as ancient Father's judge) by divinity also: 1 Aug. de decoll, joh. Bapt. ser. 11. quare (saith S. Augustine) provocasti hominem ad iurationem; quem sciebas falsum esse iuraturum? why didst thou provoke such one to swear, as thou knewest would swear falsely? And 2 Aug. ibidem. again the same learned Father: he that provoketh a man to swear whom he knoweth will swear falsely, is worse than a man killer: for a man slayer killeth but the body, but this man goeth about to kill the soul: yea two souls; that is, his whom he so provoketh, and his own soul. An example hereof may be of him, which knowing the very truth, yet deferreth an oath decisory. whereas a judge, though he know it not, but only have probable suspicion, that the party is like wilfully to perjure; ought not to urge an Oath at his hands. In the handling of this oath ministered to a party ex officio in a cause criminal, and thereby penal to him; I propound this order to myself. First to diduce down more largely that equity (which is afore in the ninth Chapter of the second part showed, to be in the Enquirie of Office) unto this chief and most usual act in such Enquirie; that is, of examining the party by his corporal oath, with answer to some few objections made against the equity and reasonableness of it, by the Treatisour. Next I mean to show it to be so far from being contrary to the laws of the Realm; that by them it is often used and practised; with answer to such reasons, as be made to prove the contrary. Then that the laws of the Realm, do allow it in Courts Ecclesiastical. Fourthly, that it is practised and allowed by Canon and Civil laws. And that it is in use amongst other nations, with answer likewise to objections made to the contrary. Sixtly, that it is practised and allowed in God's law. Lastly I will (God permitting me) answer their objections, that out of the word of God and Divinity I have heard made, to the contrary. First therefore touching the equity of such oath. All enquiry of crimes is made in some of these three sorts. First where neither person nor any deed is known to the judge (in particular) to be committed; And such are inquiries by grand juries at the common law, and Inquiries by Churchwardens and Sidemen in visitations, at the Ecclesiastical law. This is called Inquisitio generalis, Enquirie, or inquest general. Secondly enquiry is made, when a fact is known to be done, but the delinquent is not known. As the Inquisition by a Coroner (upon some murder committed) at the common law: and as the Enquirie upon forgery committed in some act of an Ecclesiastical court; in which kind of Enquirie, the hidden person is inquired after, in respect of the apparent fact. Lastly, Enquirie is made against a particular person; where there be presumptions and detections, that some certain crime is by him committed; but whether he have committed it or not, it is not certainly known: and herein the crime being hidden is inquired of, because of the person, apparently pressed by some probabilities thereof. The second of these is termed also Inquisitio generalis, but it is not so general as the first: and the last, is most properly termed Inquisitio specialis. In the first and second of these sorts of inquiring, it will not (I take it) be denied by any; but that such should be assumed (by the several judges and Officers in that behalf) as they (in their discretions) think most fit, and to be most likely to know the offenders, and the offences with their circumstances; and that they be charged upon their oaths, touching their utmost knowledge, concerning such Offenders. And may it not then thereby happen and fall out; that an oath shallbe ministered to one, who himself is such an offendor as is inquired of? For the grand jury (as I take it) have their oath given to inquire, and present, their own, their fellows, and others faults, that they shall have in charge. And yet to avoid this inconvenience, I trust it will not be thought meet, that all Inquiries by oaths, should be therefore given over. Then if this be a thing equal and agreeable unto law, to urge an oath; even where it may happen the party that takes it, to be the offendor: why should it not stand with more equity, to urge it upon such an one, as albeit he be particularly detected by great presumptions and probabilities; yet may happen nevertheless to be most clear from the crime, imputed to him? Again, if one of the grand jury being to be sworn would deny to take the oath, except he might have some certain offences (usually given in charge) left out and foreprised severally out of his oath, lest otherwise he should thereby be driven to accuse himself: or if one supposed, most able to give evidence, and information to the Coroners inquest, upon a murder committed; should desire to be spared from telling his utmost knowledge thereof, upon his oath; lest thereby he be driven to accuse himself: would the judges or Officers hereupon, think it reasonable to spare these men and let them so go; and not rather repute them to be (in deed) guilty of those crimes, for which they refuse to take oath, to tell and discover their knowledges? In like so●…t therefore, why should such men, as be probably detected of crimes nothing so penal, and who refuse to take oath to answer them, be judged by any man to do it upon good ground and conscience? and not rather, that they (as those others) refuse it, upon guiltiness of their own consciences? As the equity of this oath is showed by the former comparisons; so may it also by consideration of the crimes and the quality of them, whereupon it is tendered in courts Ecclesiastical. None of such crimes have any punishment appointed unto them by the temporal laws of the Realm: and by the ecclesiastical jurisdiction (whereby they only rest punishable) the penalty is far milder than for those crimes, and the like, was inflicted by the judicial law of God, given to his peculiar people: yea not to be accounted (in very truth, and for the most part) so much a punishment as a medicine, tending to the reformation of the delinquent (principally:) and secondarily to the terror or satisfaction of others. Out of this number of medicinable punishments, I only do except incorrigible heresy, Atheism, and Apostasy from Christianity: which (for the horror and danger of them unto others) ense resecantur, ne pars syncera trahatur. Both these three, and the rest are in such abomination with Almighty God, so manifoldly dangerous to the offender's soul, so noisome and prejudicial to the laws, and unto all civil societies of men in a common wealth: that no well advised man will think them meet to be suffered to take root and grow, but rather by all means possible to be discovered, and corrected. But being works of darkness, & by the very remnants of those sparks of the knowledge of honest and unhonest, just and unjust (that continue with us since Adam's fall) even by them that commit them, they are condemned to be such, as had need to be shrouded in all secrecy. And therefore they are of that quality and nature, as cannot (lightly by any possibility) be discovered, but either by the parties themselves, or by other partakers with them in the very crimes; and (thereby) parties also to the same offences. Yet (as Tertullian saith) a malefactor for the most part leaveth some footsteps and traces behind him, which may serve to good purpose, for his discovery. Whereupon it cometh to pass, that presumptions fall out to be known abroad, of great likelihood and probability; that such crimes and offences have been committed and done by such a person. So that when great bruits and fames hereof do fly abroad to the offence of the godly, to a scandal and a stumbling block unto the weak Christian, and to the obloquy of our holy faith and profession, with the common adversary: we must either permit such a supposed delinquent and thus discovered, to be examined by his oath touching the crime, and material circumstances of it: or else must we suffer sins and grievous enormities (so they be closely committed) to grow up and take strength without controlment; till they have gathered that head, that they shall be able even with their poise and grievousness, to ruinated both Church and Common wealth. which if it be unreasonable and ungodly (all things afore weighed) then that whereupon it followeth must needs be absurd also. If in heinous and dangerous crimes to the person of the Prince or state of the kingdom (whereof there be good probabilities and presumptions against some person) it be holden necessary and lawful Policy; to torture the supposed delinquents, that they may confess, albeit it be capital to themselves and to others also in the highest degree: is it not of as great equity in crimes of no less secrecy, and some of them in no less execration with Almighty God than these, to use the means of the party's oath; where no capital, nor (oftentimes) no corporal, yea (for the most part) where no punishment at all (properly) so to be called, but a correcting and reforming of the party, is intended? When there be great presumptions of complots laid, that are dangerous to the Prince and whole state: is it holden good policy, to let the parties alone (without either torture or examination) until some will voluntarily offer himself to be an Accuser, and to be able to make proof of them, though the party be never once examined? I fear me greatly, if this were holden for law and equity; such great and secret offences would never come to justice, till there were no man to administer it, but the offenders themselves. And may not then the like be conceived justly of crimes subject to Ecclesiastical censure and jurisdiction? In the division of the several kinds of oaths, there are mentioned certain, (even where two parties be formally in judgement) that be necessary to be taken by the other party, when as the suit is but betwixt two private persons, and touching their own private commodity and interest. They are tendered by the judge sometimes at the only petition of one of the parties, and then it is called Mercenarium judicis officium, as of more base quality, in that he doth nothing, but that, which he is (in some sort as it were) urged unto: and sometimes are offered by the judge himself ex officio, without petition of either party, as in equity he seethe cause: and then it is called Nobile judicis officium (touched also afore) as being of a more high and worthy respect, and of greater regard. Of these sorts are juramentum calumniae, veritatis, & Purgationis. All these by law are necessary to be taken. for 1 l. 2. & Authen. principales. C. de iuram. calumniae. Marr. de iuram. call nu. 6. Cuiacius. li. 9 obs. ca 37. if they be refused, being so tendered, he is overthrown (in his cause) that refuseth; and is holden pro confesso & convicto. And yet very often it falleth out, that by such oath, the party is drawn to discover his own dolum malum, covine, fraud, or mal-engine, and other also his own lewdness; both prejudicial (by law) to his honesty and good name, and also otherwise penal to himself. For example's sake by the nature of juramentum calumniae, he is to discover (in some sort) even the cogitations of his heart in that behalf; viz. 1 l. 2. C. de iuram. calumniae. That he standeth in law or affirmeth something in a full opinion and confidence; that he hath of his own right, and that the suit, as he maintaineth it, seemeth to him good and just. And 2 Ibid. & d. Authen. principales. §. i. Instit. de poena temerè litig. Nou. 49. c. 3. further, that what soever he shall be asked about that matter; he shall answer it from time to time truly: & that he neither hath fraudulently given, nor will after give, or promise to give any thing, to corrupt the mind of any man, that hath to judge in that cause. Now if in a private cause, betwixt private persons, suing but for private benefit and commodity, and at one of their petitions per mercenarium judicis officium, his adversary must of necessity take such an oath touching matters (perhaps) of his own fraud and lewdness; and to the discovering (oftentimes) of matters criminal and penal to himself, or else must lose his suit, and be condemned as convicted, by his own presumed and implied confession, and this both by the Canon and Civil laws (being the Common law in both courts, of all other nations abroad in Christ endome:) then in a public cause moved by the judge ex nobili officio, where he seethe by his discretion and direction of laws, good cause in equity, for the public interest that the Church and Common wealth have, that sins be punished and repressed; for discharge of his duty according to the trust reposed in him, and not of malice or to pull any private benefit from the party: how much more is it herein equal and necessary, that an oath be ministered to such presumed delinquent, for the discovery of the whole truth? or else if he stubbornly shall refuse, that he be holden (as in the other case afore) pro confesso & convicto? When an enemy of malice or for other sinister respect doth accuse a man of a crime, judicially; and brings him thereupon into question and great danger; if he cannot make sufficient proofs for his condemnation, yet by probable presumptions hath so touched him, as thereby he becometh unto the judge justly to be holden suspected thereof: In this case, (by both the laws aforesaid) the judge is to give an oath of Purgation to the suspected person, touching that crime; which if he shall refuse, he is holden as convicted of it: whereby it may happen, that his accuser is more gratified and pleasured, then by any proofs that himself could bring, or could otherwise procure. Is there not then much more equity, when the question and enquiry of the crime is stirred up for a better purpose; and without any such malicious accuser; that upon like presumptions and probabilities, the like oath should be given and tendered by the judge, to such supposed delinquent? Can any man give a sound reason, why it should seem equal, that when an enemy gave the first occasion, pars reae should then (upon presumptions) be urged to take the oath, or else to be condemned of the crime; And that it should not be much more equity for him to take it; when the judge (for his duties sake, and stirred up by probable inducements) doth originally call him into question? And when a man is pressed with such probabilities as the judge findeth to be sufficient thereunto, he is justly put to his oath of clearing himself, if he so can; and so this tendeth (in some sort) to his own benefit. Is it not much more reason then, that upon the like presumptions appearing to the judge, he be urged to that oath, to tell the whole truth of the matter, with the pertinent circumstances, aswell for the public benefits sake of the common weal, as for his own good, and escaping of punishment? Some may perhaps here ask, why the proceeding by the judge of Office should be more privileged in this behalf, then when a crime is proceeded against, by an accuser or party? For in the very beginning of the suit, the judge proceeding ex officio may require the oath of the supposed delinquent touching both circumstances and crime: but when he proceedeth by way of accusation, albeit in courts Ecclesiastical, the party convented may be examined by oath upon other matter of circumstance, yet he may not so be examined touching the very fact and crime, or any thing nearly or presumptively tending thereunto; until by sufficient presumptions, the judge be induced, to account him greatly to be holden suspected. This question (almost) doth answer itself: for when the judge proceedeth by enquiry; before he offer the oath to the party, the presumptions against the party are known unto the judge: but when by way of accusation, till the accuser have brought in such proofs as he can, they are not known unto him. Besides, the Accuser doth it of malice, or for revenge, or for other satisfaction of his own private humour, for the most part: But the judge (by common intendment) doth it of sincerity of mind, and for the good of the common weal. Again, 1 Panorm. in c. per Inquisitionem: de electione. etc. inquisitionis, extra, de accusat. those that be convicted upon such Enquirie, are (most usually) punished by some milder punishment, then when they are connicted upon an accusation: yea and in ecclesiastical courts sometimes, not so much as punished at all corporally; but means only of inducement to repentance, are used towards them. All which being joined to that which hath been afore spoken of the equity of Enquirie ex officio, do sufficiently (I trust) recommend both the general equity of the use of this oath, and also the great necessity of it in sundry causes, and upon divers occasions. But the Treatisour, towards the very beginning of his disputation against these oaths, surmiseth; that in justification of the equity and conveniency of them, it will by us be alleged, that the same is requisite for the Enquirie, and finding out of suspected faults, whereof there is no proof: and to search and try the evil minds and corrupt consciences of dangerous dissemblers, and so necessary for the government of the Church and common wealth. He that may pen his own Commission, will commonly make it large enough: and he that may be allowed to frame and temper his adversaries armour, is likely to make it thin and slender enough. Were it then any marvel, though this man should thoroughly answer such objections, as be wholly of his own framing? You are to understand, that by this word the same, in this place used; he understandeth general oaths for a man to discover all his thoughts, words and deeds: whereof he had spoken in the sentence afore: and this is the false issue which (in the Epistle to the Reader) I have noted to be by him tendered: against which, if any reason material had been brought by him: yet it were but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, that is, fight with his own shadow, and nothing touching any law or practice in this Realm. In way of retortion against us upon this objection, he inferreth, that all such are justly reproved, who have practised and put in ure this general oath, where otherwise there was sufficient proof. But he may not thus carry away this later point which he interlaceth, viz. that there is no lawful use of any defendants oath touching a matter criminal, where other sufficient proofs may be had. For these absurdities hereupon would follow: First where no witnesses are known to the judges aforehand (though they come in after the party's oath taken) that there a man by his own perjury should be for ever cleared and acquitted, and so (without any punishment or other worldly danger) he might heap one grievous sin upon another. Secondly that a man's own single oath in his own cause, yea and for his own clearing should be as effectual and powerful, as any two * Vide de hoc plura. ca vit. 3. partis. men's oaths (by God's word) are allowed to be, touching another man's fact, whether it tend to acquittal, or to condemnation. Thirdly it would thereof follow, that all oaths in causes criminal should be of purgation) and clearing only, and none at all of Enquirie. But the Treatisour himself reasoneth also in this his book against all cathes for purgation: So that upon the whole matter, he maketh all kinds of oaths by defendants touching their own offences or misdemeanours to be simply unjust and unlawful: The contrary whereof in both will (I trust) be proved. Lastly it would hereupon follow, that not only Ecclesiastical Courts, but (for avoiding like injustice,) the starchamber also should be barred, from giving an oath in any criminal cause to the defendant, where the matter may (perhaps) be proved by witnesses. But (I pray) how can either the Court, or the prosecutour tell precisely, what the witnesses will or can prove, when they come to depose, by virtue of their oaths? For many a man when he is sworn telleth another tale, than he did afore, when his tongue walked at liberty. Therefore (by this opinion) the judges for giving the defendant such an oath, shall so long remain under a doubtful danger to have dealt unjustly; until (by the event of the suit) it might be discovered; that the matter (indeed) could not be proved by witnesses. The Treatisor, in refuting ex absurdo his own absurd objection; bringeth in (by the way) that these general oaths would enforce men to accuse themselves to their public shame, reproach, or condemnation: and their natural parents, dearest friends, and nearest neighbours: or else for avoiding of such mischief and inconvenience, to commit most wilful and damnable perjury: and the Notegatherer saith it is unnatural: which because it will be (perhaps) applied also to all oaths given even in a particular criminal cause, and for that he thinketh this a matter very absurd; therefore it requireth some brief answer. When a man upon some such sufficient inducement, as is spoken of in the second part, is brought before a Magistrate (by special Enquirie) unto examination: his discovery against himself or other, neither by God's Law, nor yet by man's Law is taken for an accusation unnatural; but a necessary confession of truth, whereby God is glorified, sin punished, & the common wealth benefited, howsoever the party sustain thereby some touch in his reputation. Be not 1 Eccles. ca 4. vers. 24. 25. ashamed (saith Ecclesiasticus) to tell truth for the good of thy soul: for there is ashame that bringeth sin: and there is ashame that turneth a man to honour and grace: and therefore, he 2 Ibidem vers. 30. 31. saith afterward: Do not gainsay the truth in any the least point: but be ashamed of an untruth, though it proceed from thine own ignorance. Be not ashamed to confess thy sin: and stop not the course of the flood. And therefore (in such respect) he ought not to refuse to take and perform his oath; as more fully (God willing) remaineth to be showed hereafter. Another objection he also maketh falling not unaptly into this place, viz. that where loss of life, liberty, member of the body, or good name may ensue, there the presumption of perjury is great: and where it is so great, the sentence of the Magistrate trusting to such an oath, is grounded but upon aweake and feeble foundation. So that in this his presumption of perjury, he matcheth (without any good reason) the danger of loss of good name, with danger of life, liberty, and limb. with better reason he might have put in loss of worldly goods: and then by necessary consequence he had taken away the use of all oaths in every subject matter whatsoever. For who knoweth not, that for attaining riches and substance; most worldly men, not only do willingly hazard their good names, honesties and reputation: but that many do also apparently adventure (for them) their liberties, limbs, lives, and souls? Therefore, if for fear of perjury, none oaths may be tendered, whereby a man's good name, may be questioned or impeached, much more than ought they not to be; where a man's wealth and substance (which most men do most thirst after) may be any way thereby impaired, it is upbraided as an affection too common with all men: O cives, cives, quaerenda pecunia primùm, Virius post nummos. Virtue, honesty, and good reputation, are esteemed by many degrees, worthy to come behind riches. and therefore I answer, that where a crime is (in some sort) detected unto the Magistrate already: the presumption is more strong, that most men being sworn, will rather deliver a truth, yea though it touch themselves, or their friends (somewhat) in reputation; then that by perjuring themselves, they will throw both their own bodies and souls into hell: Nemo praesumitur immemor salutis aeternae, saith the law. In deed where the judge hath good and probable inducements against some special person, that he is like (in any cause whatsoever) to forswear himself: there (as was said afore) he ought to forbear, to tender an oath. But it may not therefore be made general, as if no man at all should be urged to take an oath, for fear of being perjured. Yet the Treatisour here doth seem to incline this way: in making an oath to be over feeble a foundation, to ground a sentence upon. Why? if the party confess against himself that which is objected; shall he be thought but to dally, and to have a longing to be punished, so as the judge may not safely take him at his word, and give sentence against him? If a prisoner arraigned plead guilty: what needs either evidence, or jury to be used; Confessio est liquidissima probatio, & plusquam probatio. But if he deny it; yet if the proceeding in a court Ecclesiastical, be to his purgation alone; he is not to be acquitted without a competent number of Compurgators: neither yet is he for ever so to be cleared, by the judges sentence; but that even after such purgation; good proofs touching the very fact itself (if any can be made) are to be admitted. which case happening, he is punishable both for the fact itself, and for his perturie. But when the proceeding is by way of enquiry, for punishment or for reformation: then albeit the defendant deny it, nevertheless witnesses or other proofs (if any may be had, either then or afterward) are to be used against him. And therefore in such case as law alloweth sentence to be given upon the defendants oath; yea or upon judicial confession without oath; it is no feeble, but rather a most strong foundation for the judge to build upon. The Notegatherer no less missing the cushion and matter in issue, than the Treatisour; reasoneth thus against oaths (which they call general, unto all thoughts, words and deeds:) Her highness (saith he) hath oftentimes caused to be openly notified in the starchamber, that her gracious meaning is not, to search into men's consciences; or to force the same; but only to extend the laws upon crimes committed either in word or deed. Belike if a man keep not his conscience (as he calleth it) to himself, but useth some overtword or deed, he will then (I hope) permit the party defendant to be interrogated by oath, (as in the starchamber) touching such a crime. which if he will grant, let him, as much as he thinketh to be for his ease; exclaim still, against all such Ordinaries and Commissioners Ecclesiastical, as shall happen to give such oath more generally, or without any ground precedent of inducement thereunto, by law allowed. for these untrue imputations, will not touch any person or practice, that I have heard of to be used, since her majesties happy reign. Thus much for the equity of the defendants oath in some matters criminal; and in answer of objections, made against the conveniency of it. CHAP. VI That oaths of men touching matters damageable, criminal and penal to themselves, are urged & exacted by temporal Courts, and by the laws of this Realm. HEre I am to show, that the like oath in matters criminal, and that may be penal to a man's self; is practised by the course of the Laws of this Realm; and therefore this proceeding, is no contrary or repugnant course unto them. The Chancery, is a principal and high Court of this Realm; and a court of conscience and equity, to moderate, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, viz. the exact rigour of law. In this court, though the proceedings (for the most part) be moved Civiliter & non criminaliter; that is, not to any public punishment, but for the private interest of the party: Nevertheless, many bills of complaints be there put up against defendants, wherein sundry their lewd practices and misdemeanours criminal be deduced and set forth; and yet must the defendant make perfit and particular answer thereto, upon his oath. The same course is observed in other courts of the nature of Chancery, as in the Court of Requests. And sometimes further also, even quando agitur criminaliter adpoenam partis: as is oftentimes observed in the Court of the Counsel in the Marches and principality of Wales, and before her majesties Counsel, established in the North parts. So that, to the intent of a defendants being urged by oath (sometimes) to discover himself in a matter criminal; it cometh to as much in these courts, as is challenged for unlawful, in Courts ecclesiastical. For though in some of those aforesaid Courtstemporall, no punishment can be inflicted thereupon; yet either discovery of themselves (if they be faulty) with shame and reproach to them; or else perjury is enforced in them all: which is the main inconvenience, that the Treatisour, and Notegatherer do assign, against such oaths. There be sundry considerations touching the court of Chancery, which if we do attentively consider, will argue unto us, the long use and approbation of urging defendants answers to be made upon their corporal oaths: yea though some matter of their own crimes and dishonesty, be therein deduced. It must needs be, that the Chancery is the ancientest court of this Realm: because from thence all original writs & Commissions do come; whereupon the other courts do ground all their proceed. And yet by all probability it is most likely, that as in sundry other points of proceeding there, so in this behalf, they drew the exacting of the defendants answer upon oath, from the Civil law. For that Court being here in time and nature the first, could not take light from other Courts of the Common law, but from some other, that was both afore it and them. Secondly, Answers, Rejoinders, etc. in the other Courts (most usually termed courts of the Common law) are not put in upon oath. Thirdly, the very word of Cancellarius and Cancellaria are Latin words, that are found to have been first used by the Civil law. and did signify such an assistant to the Sovereign prince, or other supreme judge, as for his wisdom and skill in law, was adjoined unto him: and was so called, because he did sit intraeosdem Cancellos cum Principe, in the same Tribunal seat 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 Civil law, that was practised whiles their Commonwealth stood uninuaded, by perpetual Dictator's & Emperor's: nor till above 300. or 400. years after: about which times, and afore; this realm being wholly under the Romans dominion (as the chiefest part of the then known world also was) no doubt their language, but especially their laws, were here received. The sundry Colonies and other towns built and inhabited here by the Roman soldiers, and others; must needs spread that language very far. The old British or Welsh language (at this day) after so many periods of times, vicissitude of Fortune, and mixture of other nations; doth retain very many provincial Latin words. Martial the Poet, that writ in the times of Uespasian and of Domitian Emperors, saith thus of a British 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 Romans. And again the same Poet. Dicitur & nostros cantare Britannia versus: which argueth the use and knowledge of the Latin tongue, to have been (then) rife in this Island. That the Civil law of the Romans was then used here, their histories may testify. for they gave their own laws to most of the Provinces which they subdued, and permitted 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, to very few of them. Many of the same laws were also taken up and retained by the Saxons: even until the Norman conqueror brought hither, & established the customs of Normandy. And namely amongst others, they retained till then the law; that all brethren should, participate alike, their Father's inheritance. And we do 1 Cic. samil. 〈◊〉. read, that Trebatius an ancient Civil Lawyer, and often alleged in the Pandects (who lived in julius Caesar's time, more than forty years before Christ) did remain at Samarobrina in this Island of Britain. Likewise afterward, the 2 Forcatulus. very oracle of that Law Aemilius Paulus Papinianus did profess the law, and kept his Tribunal seat of Praetorship, at the city of York. Fourthly, that the Chancery took this course & many points beside from the Civil law; is apparent, by the whole course of other proceed there, viz. by the defendants answer to the bill upon his oath, and sometimes to interrogatories: by the sundry issues that there may be tendered: by that term, and whole manner of publication of witnesses depositions: by examining witnesses upon Interrogatories: by examining witnesses in perpetuam rei memoriam: by the term and use of final decree, and many other such like points, much varying from the manner of common Law, and jumping, almost wholly, with the Civil. 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 Clergy men, whose study and profession then, was the Civil laws. Therefore this urging to put in answer upon corporal oaths taken (albeit the matter in some degree, happen to be criminal) being a special practice in that chiefest Court of Equity; can hardly be construed to be against equity. and being in the original temporal Court of the land, cannot be contrary to the fundamental laws of the same. and that Court being of so great antiquity and continuance; this answer by oath, can not be an abuse or corruption lately crept in; wherewith the Treatisour (without any ground) chargeth all those temporal Courts that have received it. In the Court of starchamber, the proceed are against crimes criminally moved by way of Enquirie; though (for the most part) at the promotion or solicitation of some private party grieved. namely against forgeries, perjuries, subornations, riots, routs, and other sundry heinous misdemeanours: against which there lieth no capital punishment, nor loss of limb, by the common law. Yet is the defendant there, to answer upon his corporal oath, not only to the bill preferred against him; but to as many other (perhaps sometimes even cross) Interrogatories, as the Counsel of the plaintiff shall devise. But to this (I hear) it is replied by some, that there be two main differences betwixt the course there, and the proceed in a Court Ecclesiastical. The first, that none there is bound to take his oath, but only where there is an accusation preferred against him by an other: so as if he purge himself lawfully, he is to recover damages. Touching recovery of damages (if by damages be meant costs and charges) these for the most part be (in this case) also given even by the high Commission, that is so much impugned. For (except it be immediately for the Queen) there is a party bound to prosecute and pay charges, if the defendant be molested without cause. But if such damages (as they term them) be recoverable in the starchamber; I think they are not very great: and where the matter is preferred once by her majesties learned Counsel; I am told there be no costs adjudged, though the defendant happen to be cleared. But if (in this behalf) there were any difference; yet it makes no difference in the very point in handling: videlicet, that an oath is there given to the party in a cause criminal and penal to himself. The other part of the replic (builded upon an accusation there preferred) is indeed different from the course of Ecclesiastical proceeding: but yet if there be equity for it in the starchamber, it doth much more fortify the giving of such an Oath in Courts Ecclesiastical. For in these Courts, if there be an accuser or any party that informeth or promoteth; then the defendant is never examined by oath upon the very crime. For when a party prosecuteth, who (as the law intendeth) doth it for malice, revenge, or some other particular respect; he is not so much favoured nor privileged in the proceeding; as when the judge ex officio Nobili, even for his duties sake, and for the public commodity of the common weal, doth make the Inquirie. If then it be both equal and lawful in the starchamber, at the prosecution even of a private person (who may be intended for the most part, not to do it of conscience only & zeal of justice, to have vice punished) to examine the defendant upon his oath, for discovery, oft times, of faults and misdemeanours even openly done and committed, and so the more easy to be proved by witnesses, and where the punishments are usually corporal and otherwise far more grievous, then be inflicted in any Court Ecclesiastical: then how can it in an Ecclesiastical court be thought unreasonable; whereas the office, duty, and charge laid upon the judge, are (by common entendment) the only exciters and causes of prosecution: and where (if it be an Ordinary Court) canonical penance (for the reformation of the party) is inflicted: And (if it be before the Commissioners Ecclesiastical) neither their greatest corporal pain is so grievous, nor their fines so deep? And yet many of the crimes are as heinous towards God, & as secretly and closely committed and plotted; as any crimes are, that be punishable before their Lordships, in that most honourable and sincere court of the starchamber. The second difference by some taken (in this behalf) between these proceed; I hear, is this: that in the starchamber a man is not driven to answer directly to the fact itself, but only to the circumstances of the fact, as was in Trussers case, as is said. But I am certainly informed (by those that have better cause to know the practice of that Court, than the Author of these objections and differences) that the practice of that Court is clean otherwise. As for Trussers case, it was the felony only (a matter capital to him) that was ordered not to be inquired of him by Oath. but touching the lewd confederacy itself, and of his other practices about it, he was ordered (by oath) to answer them. So that the reason of the like equity in both courts (these notwithstanding) remaineth still unshaken. To this reason (as is noted else where) the Treatisour also (for his part) doth thus answer, viz. that the starchamber requireth answer to matter in fact, done either to the injury of a private person, or hurt to the public State: as if he would insinuate, that Courts Ecclesiastical urged Oaths in far more unreasonable cases. Truly, if the injury reach only to a private person, without any further offence or scandal: the imposing of any such oath by Civil or Canon law, will not be justified: and other then for answering matters in fact, do one to the breach of laws, or to the offence of Almighty God, and consequently to the hurt of the public State; none oath is at any time there exacted. Yea not only in the Courts above named, but in all the other Courts of Record at Westminster; I am credibly informed, that, (time out of mind) it hath been observed, for the judges by corporal oath to examine any person; whom they had cause (in discretion) to suspect to have dealt lewdly, about any writ, return, entry of rule, pleading, or such like matter (not being capital) touching their several Courts. as namely Sheriffs, & their under Officers & Ministers, Protonotaries, Philizars, Chirographers, keepers of Records or Rules, Clerks, and sometimes councillors and Atturneiss, or the very parties, having suits. But because the Commission (as the Notegatherer collecteth) bindeth them precisely to crimes punishable by the Ecclesiastical law, and to proceed according to the Ecclesiastical laws of the Realm, and not according to the temporal: therefore (saith he) it is a frivolous allegation, to say; such a thing is used in the starchamber, Chancery, or the Benches: ergo the Ecclesiastical Commission may do the like. First, here he calleth them Ecclesiastical laws of the Realm. how then are they foreign, and strange laws, and sinews of the Romish Cerberus, as the Treatisour raveth? Secondly, if Courts Ecclesiastical may not deal according to temporal Laws; why doth the Treatisour threaten them with praemunire, for that the policy of this Realm knoweth no such oaths, as he argueth? What? may they neither deal according to temporal Laws, nor yet in a different course from them? Thirdly, the antecedent is untrue: for by that Commission, the breach of four Statutes be enquirable and punishable: and the punishment also may be other then Ecclesiastical, as is proved in the first part. Lastly, none that stand in defence of these oaths do draw their reason only from the practice of temporal Courts in that sort, as he surmiseth; but thus: Whatsoever the Ecclesiastical Laws do allow and require being not contrary nor repugnant to the Queen's prerogative royal, nor to the Laws, Statutes and Customs of this Realm, that may be lawfully practised by judges Ecclesiastical. But this oath is such; by reason that sundry temporal Courts (by law) hold the like course, and do not prohibit it in courts Ecclesiastical: so that, not being so much as divers courses, they can not be contrary or repugnant: therefore these oaths are lawfully practised in Courts Ecclesiastical. or thus: That which is justice and equity in one court, cannot be unjust, unequal, or cruel, in another court, that is thereunto no less authorized, than the first: but such be these oaths, as appeareth by the practice of the aforesaid temporal courts: therefore they are lawful and equal also in Ecclesiastical courts. But for more particular and fuller proof of these two minor propositions, I will speak first of oaths prescribed by statutes: And in these, first of such as be taken in matters, that may only bring damage to the takers of such oath: and then of oaths taken in matters both criminal and penal to the party that takes them. By the 1 13. Ed. 1. stat. Winton. statute of Winchester, men within certain years of age, are to be assessed, and also sworn; to have all such assessed armour in their houses. The 2 17. Ed. 2. Praerog. Reg. ca 4. king's widows that have dower of lands holden in chief of the king; must be sworn, not to marry without the king's licence. By a 3 25. Ed. 3. de seru. ca 2. & 7. statute of king Edward the third, a tax is set, what labourers shall take: and they are thereby appointed to be sworn, to do those labours, and to take no more than is allotted them: And that they shall not in summer departed, to serve in other places, than where they served in winter. This oath is to be taken twice in a year: and if any of them refuse to take it, he is to be sent to the stocks or jail, till he will reform himself. Likewise by 4 27. H. 4. ca 17. another statute afterward, all labourers and servants are appointed to be sworn both to do service, and to take for the same, according to the statutes: And if they refuse; they shall be set in the stocks (for three days) till they will agree to it; and if they do not, from thence shallbe sent to the common jail. The 5 8. H. 6. ca 7. sheriff hath power (by statute) to examine every chooser of a Knight for the Parliament, upon the Evangelists; how much he may dispend by year. Those that shall 6 27. Ed. 3. stat. stapulae. go about to ship over any wools, and other merchandises, the Mayor of the Staple and Customer shall make them take oath; that they shall not keep Staple of those merchandises on the other side the Sea. 1 11. H. 7. ca 33. Likewise, he that shall ship an horse (to carry over Sea) must swear; that at the time of shipping him, and at that time he sweareth; he is fully purposed not to sell him, but to have him for his use. By the statute or award made at Kenelworth: all that had to do (in that behalf) were appointed to 2 51. H. 3. swear upon the holy Gospels of God; that they should not take revengement, etc. by occasion of the commotion. For the 3 Stat. de stap. 27. Ed. 3. ca 6. value of merchandise brought in by strangers, if they have not letters of credence thereof, from their lords or companies; they are to take an oath. The master, 4 23. Eli. ca 6. owner, or shipper, is to give true information by his oath, concerning the burden of his ship; to the intent the money out of every tun allotted to Dover haven, may be received. All which oaths, though most necessary and equal; yet you see, how they may bring great damage and loss unto the party. Now touching oaths appointed by statutes that may tend and reach to make the party discover even matter criminal or penal to himself: By the 5 Statut. de Exon. de Inquisitione super Coronatores. anno 14. Ed. 1. Rastall. tit. Coroners. nu. 3. statute of Inquisition upon Coroners, the Enquirors shall make all the bailiffs swear, that they shall well and faithfully do that which they shall have in charge by the King and his Counsel, and that they shall conceal nothing of it. Their charge is not only of misdemeanours, of Coroners; but also of concealments of murders and felonies, and letting such escape, etc. done (happily) in default of a whole township in general; and perhaps in default of the very bailiffs particularly, who be sworn: and therefore criminal or penal to them, yet by virtue of their oaths not to be concealed. 6 9 Ed. 3 stat. de ●…oneta. ca 9 Majors and bailiffs in every port (where merchants and ships be) shall take an oath of merchants and masters of ships going and returning; that they shall not do any fraud against that ordinance (touching money) in any point. By which oath, it seemeth they not only are to promise not to do it (for they are to take it at their going) but also that they have not done it being abroad; because they must take that oath also at their returning. And this being concerning fraud not to have been committed, toucheth matter of discovering a man's own turpitude & offence; besides the penalty due to the offender. If a bill or information be put up in any court of Record, against a man, upon the statute of 1 8. Ed. 4. ca 2. Liveries and Retainers (being very criminal and penal to the offenders) after the Informer hath taken oath, that his complaint is rightful (where by the way we may see some use in these courts, of that juramentum calumniae, which is required by the Civil laws, if it be demanded by either of the parties) the defendant shall be brought in, and put to answer to such bill or bills, by such information. And the same judges and every of them in every of the said Courts shall have power in their several jurisdictions, to examine all persons defendants and every of them, upon such information; and to judge him or them convict or attainted, aswell by such examination, as by trial, as the case requireth after the discretion of the judges. Upon 2 11. H. 7. ca 25. complaint by any touching perjury, and certified by a justice of Peace unto the lord Chancellor: it was enacted in the time of King Henry the seventh, that the party complained of, might be compelled to come afore the Chancellor and treasurer of England, the chief justice of either Bench, and Clerk of the Rolls for the time being: and they had full power and authority, 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 be found offenders, aswell in perjury, as in other offences, viz. in maintenance, imbracerie, or corruption in any Officer, etc. In the said Kings days, a statute was afterward made, against Retainers; whereby 3 19 H. 7. 〈◊〉. 14. justices at their Sessions of Peace, were authorized to examine all such by their discretion, as they should think to be suspected of any Reteinour: and their Certificate into the King's Bench, against any examined and found faulty, was against such, as a conviction; and against others, as an Indictment. The same 4 Ibidem. statute also giveth authority to divers great persons, to examine defendants informed against for certain offences and breach of Statutes; as well by oath as otherwise, by their discretion, and to adjudge, etc. Likewise authority is given by 1 3. H 7. ca 1. 21. H. 8. ca 10. 5. Eliz. ca 9 two several statutes, unto certain great officers of the kingdom, Lords &c. to call such grievous offenders (as there be named) upon bill or information: and them, and others (by their discretions, by whom the truth may be known) to examine. That this examination is by a corporal oath taken, the continual custom in that honourable court of starchamber observed, doth show; for the breach of the said statutes is there to be punished. And if examination were not so to be taken for the parties own oath; then could it not so be understood of the witnesses: For the word examine, is indiffererently used for them all. And 2 Brooke tit examination. nu. 32. Brook in his Abridgement doth testify, that examination spoken of in law, is upon oath. If a 3 24. H. 8. ca 6. Vintner shall refuse to sell his wine in gross (without just cause) unto such as offereth him the set price thereof in ready money, he shall forfeit as much, as the price of the wine. Such vintner also may (at the discretion of any Officer there named) be put to affirm and depose upon his bodily oath, what, and how much quantity, and sorts of wines he shall have; and whether he keepeth them to sell by retail or in gross and if after such affirmance of intent to retail them, he shall sell any of them in gross; he forfeits the double value. By a statute of 4 34. H. 8. ca 4. Bankrupts; the lords there named, may (upon relation to them given) call any person, suspected to conceal such offender's goods, and may examine them by their oaths, and otherways (as in discretion they shall think meet) upon the specialty, certainty, true declaration and knowledge of such offender's goods, or debts, owing to him. And if he show not the whole truth to be after proved by witnesses, etc. then he forfeiteth double the goods concealed. The like 5 13. Eliz. ca 7. authority is also given to certain Commissioners, to be appointed (by virtue of a later statute) to tender an oath. But in this later, the double penalty runs against him; If either he do not upon his oath disclose the whole truth, or shall deny to swear. The 6 5. Eliz. ca 1. oath of Supremacy or obedience is a necessary oath to be taken by such, as the L. Chancellor shall think fit ex officio to have it tendered unto. Yet if the party carrying a contrary persuasion shall refuse it, it becomes very criminal, and penal unto him. Such 1 13. Eliz. ca 3. as be supposed to be parties and privy to the fraud, collusion, and covin used in conveyances by fugitives over the sea, which fraud, etc. are there affirmed to be things detested and abhorred by all good laws; may be Commissioners appointed, or by the Barons of the Exchequer; be examined upon their corporal oaths; to open and declare plainly the very truth, to such Interrogatories, as shall be ministered unto them touching the premises, and the circumstances and dependences of the same: upon pain (if they shall refuse) to lose such a fine and fines for the said contempt; as shall be assessed by such, before whom such examination should be made. In which (as in the other Statutes mentioned) it is evident; by how many ways it may happen, that such oaths shall tend to the urging of them to discover matters criminal and penal to themselves, that are appointed to take them. And the four last alleged, concern oaths given; where neither bill, nor yet information is preferred against the parties examined: and therefore to be tendered, more than ex mero officio. In matters that may induce damage to him that sweareth; there be sundry examples at the Common law; one, or two may suffice. If 2 T. 25. Ed. 3. fol. 44. a woman covertbaron (being to acknowledge a fine) it be doubted, whether she be 21. years of age or no, she shall be examined upon her oath. In an 3 P. 3. Hen. 6. 38. action of detinue of goods supposed to be delivered in Fleetstreet, the Plaintiff was examined, where they were delivered. An 4 H. 3. H. 6. 30. obligation bare date in the County of Lincoln, and a scriveners name was put to it that remained in London; hereupon the Plaintiff was examined, where the obligation was made. Besides the damage hereof; the circumstances of this, might be such; as might have urged him to discover (perhaps) a forgery. It is a common practice in this land, straightly to examine persons holden suspected of some crime or offence, and to urge their answers; or else the Magistrate will and must needs hold them, greatly & violently to be suspected, & little less than convicted. If an unlikely person (but suspected at large) be found in a privy search; or stayed, as he passeth, and be brought before a justice of peace or higher Officer: is he not straightly thereupon to be examined of his ability, course of life, trade, and place of abode etc. which may import Roguery, that is both criminal and very penal to him, if he be such an one in deed, and shall choose rather to endure the penalty of law, then to lie before God and his Magistrate? If to this it be answered, that such examination is without oath; I reply, that this is but as it happeneth: but admit it so be, yet the matter is hereby nothing helped. For as to this purpose, of being urged to discover himself (which these men call accusing) in a matter criminal & penal, it comes all to one pass: because he must either hold his peace altogether, or confess the truth plainly: (both which may bring him to punishment) or else he must lie, whereby he grievously offendeth God, though not in so high degree (indeed) as in perjury, nevertheless this bond of not saying untruly before a Magistrate must needs be counted, a kind of causative urging of a man (that hath any conscience) to discover matter of crime against himself, if he be guilty in deed, of that which is asked of him. If a Sheriff, Steward of Liberties, reeve, Bedell of Strays and wayves, rent-gatherer, sheepe-reeve, Bailiff, Bailiff of husbandry, or other accountant to the Prince, or any great Lord, be urged by their Auditor to give up their account upon their oaths, as is usually done: doth not this (in case they have done negligently, or deceitfully) tend to bewray, or (if ye will) accuse themselves, in a matter ignominious to themselves, and in itself criminal? The Treatisour himself, though he bend most of his ordinance against this point; yet when he had more exactly a little waded into, and weighed the matter; seemeth but only to find fault with sifting generally (by oath) of all men's thoughts, words and deeds, and especially (saith he in another place) in matters, of life and death: which his issues if he will not waive and relinquish; there is none (I think) in this Realm, that will impugn that his assertion, either by colour of law, or by rigour of practice. For even at the common law, oaths in matters criminal and penal to the parties, be oftentimes necessarily to be taken, when they are enjoined. For if 1 Stanford. Pleas of the Crown. li. 3. ca 14. a man sue an appeal of murder against another; who will be tried by battle, the defender that is appealed; must (before the battle) holding his adversary by the hand, solemnly swear thus: Hear this, you whom I hold by the hand, who call yourself by such a name; I have not feloniously murdered your father, etc. so help me God and all Saints. Of Oaths ministered at the Common law, tending to the discovery of matter criminal and penal to the party himself; I find these examples. One 1 M. 34. Ed. 3. fol. 3. sworn of a jury, did after depart from his fellows. In the mean time an other was sworn in his room. But when the first returned, he was by the judges ex officio examined, upon his book oath; whether he had talked with the defendant or been in his company, since he was sworn. This (if he had confessedit) as it is an offence, so had it been very penal unto him. Nevertheless for his apparent fault of departure, he was committed and fined. In an action 2 T. 7. H. 4. fol. 19 of Formedon, the tenant of the land was supposed to confess the action of the demandant by covin, and was thereupon examined by the judges; and the covin being thereby found; it was decreed, there should be no judgement, and that he should be punished, by their discretion. A 3 P. 9 H. 5. 1. woman brought an appeal for the death of her husband, but (as it was supposed) by another name than she had in very deed: upon which covin, she should have been fined, and thereupon she was examined. A 4 H. 35. H. 6. & Fitzh. Abridgem. tit. examinat. nu. 17. jury after they were gone together, were supposed to have received a letter on the behalf of the defendant: which in law is said to be a grievous fault, and it is to be grievously fined: yet all the jurours were thereupon examined upon their oaths. A 5 M. 35. H. 6. 11. Sheriff returned, that certain witnesses, who should have appeared, were dead: whereof it was desired, he might be examined, because the return was razed, and two of the witnesses were said to be alive, whereof one was then in the Hall, and had his remaining in the Country. Whereupon the Sheriff was examined, which Prisot informed: and he deposed, that the return was made by a Clerk, and neither by him, nor by his Undersheriff: and that he knew two of the witnesses were living. Now if he could not (with a good conscience) thus have cleared himself upon his oath; had not this crime of razure and false return, been very penal and shameful unto him, being so directly contrary to honesty and to his oath, taken at the entrance into his office? 1 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 court; that they might have examined them, touching their covin and lewd practice, tending to defeat another man, of his lawful action. They have a certain custom in London, and it is allowed for good by the Common law of the Realm: 2 Brooke tit. ley gager. nu. 77. That if the defendant think the plaintiff have made a false declaration in an action of debt; he may desire to have the plaintiff sworn to the truth of his declaration, and shall have it. If the plaintiff swear, the defendant is condemned: and if the plaintiff refuse, he is barred. And may not this delation of such decisory oath, occasion, and (causatively) urge the plaintiff (sometimes) to discover himself to have demanded a debt not due, which is dishonesty and unjustice: or (perhaps) induce him to perjury, partly for filthy lucre's sake, & partly that he may not seem to have dishonestly demanded, what was not due unto him? if than a private person, nevertheless may so defer an oath, but in a private money matter: how much more may a magistrate in a public crime, these doubts and perils notwithstanding? And the like decisory oaths be not only received in that City alone, but also at the common law. For 3 19 H. 6. 43. when the defendant desires, that the plaintiff may be examined, or sworn, this is peremptory to the plaintiff in this point. and so is the wager of law, ex part defendentis. In an action of 4 44. Ed. 3. 41. detinue brought against a Dean, for a chest sealed with certain gold, silver, and Charters in it, as being delivered to his predecessor; the Deane tendered his law (that is his oath) quod non detinet: and the opinion of the court was; that he should have it. Now who seethe not, how many ways, this course may no less induce men unto perjury? For doth not common experience teach us, how readily, for a trifling piece of gain, tradesmen in buying and selling will swear falsely, or else cautelously, which is all one fault before God: yea when as no such matter is required, or expected at their hands? therefore how much more strongly may perjury be feared, in a matter of good weight; especially when men by the vexation and suit of their adversaries are whetted on, and where as, they having (a good while) stood in denial; their credits amongst other men, might otherwise be called in question, and seem to be impaired? And yet this danger that perjury may perhaps ensue, is no sufficient reason to change the common law, in this behalf. How then can most of the Treatisours arguments hold; which are chief grounded upon peril of perjury; which (he saith) is likely a man will fall into, rather than have his good name and honesty brought into question, and hazarded? I have also credibly heard, that in the time of that Reverend judge Dyer, the court of Common pleas, examined certain by their corporal oaths, touching a very lewd plat laid by some of them: and the names of the dealers pro & contra, in that cause, were (as I remember) Grevill, Pyve, and Hockam, which being so found out, was condignly also punished in some of the offenders, both by perpetual infamy, and with other punishment. CHAP. VII. Wherein are contained answers to such objections and reasons, as be made for proof of a contrariety or repugnancy in these oaths, unto the statutes, laws, or Customs of this Realm; and a Reply to the Treatisors answers, made unto certain objections, supposed likely to be made, in justification of this kind of oath by the temporal laws. IN this Chapter I purpose (God willing) to answer those points, which by the Treatisour or Notegatherer are brought, to persuade; that such oath (as here we handle) is either plainly impugned, or closely contraried by the laws temporal of this Realm. Under this consideration do fall certain bare affirmations about this matter; their reasons for this assertion, and their answers to such objections, as are by them supposed may be made, in defence of this kind of oath. Among their bare affirmations about this matter, I reckon some things, which they imagine to be said or practised, by Ecclesiastical Courts or persons: and that which they affirm, the common law either holdeth or practiseth on the one side; or else on the other side forbeareth to put in use, in this behalf. To the point of practice by persons and Courts Ecclesiastical; are referred those the Treatisours imputations; whereby he surmiseth general oaths, for all a man's thoughts, words, and works, to be ministered by them: and that upon the Ecclesiastical judges only jealousy and suspicion, without any other lawful inducement precedent. Likewise that it is tendered in matters tending to loss of life or of limb. All which I have elsewhere showed, to be very untrue, and slanderous. Hither also is to be reduced another speech of the Treatisours: for whereas the defenders of this oath do affirm it, as it is practised (but not in such a catholic or universal manner, as he sporteth himself at) to be warranted by the temporal laws: he saith; that this is a foul slander both to our laws, and to the justice of our land. The truth or falsehood of which his fowl saying, will appear; upon perusal 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 he calleth it, an alien heretofore entruded, as a trouble some guest 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 keep towards his people: so the ecclesiastical judges practising in their Courts and tribunal seats, the self same unjust and unlawful manner of proceed, against the king's people; could not escape the severe sentence of law, pronouncing them offensive butchers, and violatours of the king, and injurious dealers against his Regality, crown, and kingdom; and so consequently, etc. in a Praemunire. But for any testimony of this corrupt dealing of Sir William Thorpes (which here he speaketh of) or of his breaking of the king's oath, and so severe sentence of law passed in that respect against his butchery and violation of the king's Regality etc. though I have sought for it, yet can I not find; neither doth the Treatisour give us any direction for it. His meaning herein (though covered with sly words) is easy to be discerned, through his vizard. For if the oath were made by the king only, how could it be broken by Thorpe, and the king be unblamable? for no man is simply bound (by oath) to perform other men's integrities. and seeing he chargeth ecclesiastical judges, with the self same unjust and unlawful manner of proceeding: though his conclusion (drawn from the likeness betwixt these cases) be only this, videlicet, that they are thereby fallen into Praemunire: yet his very meaning, and what conclusion was by him meant to have followed thereon, by the former part of the comparison, is made apparent, videlicet, a covert, disloyal, and most lewd charge; as if some now had no less broken the oath which they have taken, howbeit procured or induced thereunto, by judges and Courts ecclesiastical. But if such Ecclesiastical judges have neither endeavoured any such breach; neither yet their practice of the oath by him here condemned, be impugned by any law; then can it not be avoided, but that the Treatisour (in very deed) had such an undutiful and slanderous purpose and reach, in his words aforesaid. To the second degree of their bare affirmations, such speeches of Temporal Courts practise, or forbearing to practise (as these following Bee) do belong, videlicet, that such a generalloathe or such like ex officio, was never offered nor taken; for you may perceive, he is not resolved thoroughly; whether of these two he had best insist upon, or take for his issue: And that, the common laws have ever rejected and impugned it. Likewise, that it was never put in ure by any Civil Magistrate of the land, but as it is corruptly crept in amongst other abuses, by the smister practices and pretences of the Romish Prelates and Clergymen. which asseveration, as it is (in that part) void of all likelihood, where it is surmised that the practices & pretences of Clergymen, did first shoulder this oath into Civil or Temporal Courts: so is it yet, an implied kind of confession; that it is not such an Alien to the Civil policy of the Realm, nor by it wholly reiècted & impugned; as in his treatise he beareth us strangely in hand. Besides that, such implication is flat repugnant & contradictory, to the Notegatherer; who writeth, that it was never used here to make men accuse themselves: for by this accusing he meaneth giving of oaths to defendants, touching discovery of some their own offences. Lastly, that where loss of life, liberty, or good name may ensue; the Common law hath forborn oaths. As for loss of life, it is yielded to be true, which he here saith: but not so, for the other two. for the starchamber (being a Temporal or Civil Court) imposeth oaths, where both infamy may and doth follow for punishment; and where liberty is restrained most often by imprisonment, and sometimes also by banishment. Unto the other head of their bare affirmations, which is, what the Common law holdeth, in this behalf: such of their speeches as these following, do appertain, videlicet, to give oath (they mean to the defendants) in causes of life and death, is contrary to the justice of the land. This, albeit, it no way impugn any practice Ecclesiastical: yet is it flat repugnant to the Notegatherers assertion, spoken unto in the 1 ca 10. pag. 93. second part. Again, that the Common laws have not appointed an oath to be used, but according to the right institution thereof: and that in causes capital or criminal, these laws neither urge by oath, nor force by torment, a thing most cruel and barbarous, and therefore against torturing, he allegeth master Fortescue in his book De laudibus legum Angliae. It is wholly besides my purpose either to avow or disavow here, the course of finding out truth by torture; yet much might on both sides (probably) be said therein, both by reason, and also by grave authority. That the defendants oath in causes capital, neither is used nor allowed by the laws of this Realm, I do yield unto him, as afore I have said; but for torture, let me nevertheless put him in mind, that it may perhaps be thought of very hard, to have it thus affirmed; that the torturing of supposed Capital offenders, not only used in Camps, but also (within the Marches & principality of Wales) even in time of peace, well warranted by her majesties instructions, and by Act of Parliament, & in the Tower of London for matters of treason: should all of them be accounted absolutely contrary to law; or (which is more) to be courses most cruel and barbarous. The other point thereof, which is of not urging a defendant by oath in any cause criminal; is the main point here traversed betwixt us; and therefore may not be carried thus away by him, per petitionem principij, without some sound reason. All these aforesaid speeches I do muster amongst their bare affirmations; and have the longer stood upon them, because themselves do not so much as assay or undertake to prove most of them, by any colourable argument or authority: & for that the reasons, which they tack on, unto some of them, do not hang together by any consequence; and for that divers of them might be granted, without any detriment to the cause which we defend. for they be but voluntary speeches, let slip at random. this therefore cometh under his mistaking of the true issue. yet they be such, as seemed not unmeet to be mentioned; lest (if the Author of them do happily hold them for sound reasons) he should complain to have a piece of wrong offered unto him, for that all his book was not spoken unto, and answered. Next do follow those their reasons to be discussed, which they take from the laws of this Realm. and first concerning such of them, as be made out of Statutes; and afterward we will come to their book cases. That which he speaketh of Magna charta, albelt he handle it last, yet for the ancienty, seemeth to deserve the first rank. he avoucheth no particular part thereof: but taking (as granted) a contrariety (belike in his opinion) not traversable, to be betwixt proceeding by this oath, and the said Statute; he only (in high words) telleth us, of a most just curse of Anathematizing, laid by the Bishops then, against all wilful infringers of that Charter. If I should guess what point thereof it is, which he intendeth to be so contrary to these oaths; I would take the nineteenth chapter thereof (if any) to be meant: both because putting to an oath is there mentioned; and for that I have heard it (to like purpose) alleged by some other. Howbeit the Treatisour having far better insight (as seemeth) in law, than he that so alleged it; thought good to skip it over, without all allegation; for fear it would not so well help his turn. The words are these, videlicet, No 1 Magna charta. ca 19 Bailiff shall from henceforth put any man to his open law, nor to an oath, upon his own bare saying; without faithful witnesses, brought in for the same. I must confess, that these words are some thing too obscure and dark for me to understand, what is positively and precisely meant by them. and so much the rather, because I know not the usage afore that time; which (thereby) was meant to be remedied: except I should conjecture, that the bare saying (there) spoken of; is to be referred to the man, that taketh the oath, and not to the bailiff: and then would it seem to establish that practice, which is used in waging of law with two or more witnesses or hands, concurring with his oath that sweareth. Howsoever it be (in very deed) to be understood; it is easy enough to gather, what can not be meant by it. First therefore, it cannot any way be extended to proceed and courts Ecclesiastical. for whatsoever is in that Statute granted, after confirmation of the Church's liberties (except it be otherwise plainly expressed) is referred to Courts and matters Temporal: between which and causes ecclesiastical (as is noted afore) there was made both in those times, and also long after; a plain severance and distinction, in the grounds of their several authorities, and jurisdictions. so that the one was called the King's Court, and the other a Spiritual, or Court Christian. and therefore as nothing was in that Charter anew granted, but confirmed only, unto the Church of England: so is it to be judged on all hands, that the king would not make laws there, to restrain the courses of proceeding ecclesiastical; because it could not be without disannulling and revoking of that which immediately afore (even by the same Act) he had first of all confirmed unto them. Secondly, a bailiff only, is there mentioned, which should put or not put a man to his oath; which cannot well and properly be understood of any, but of some officer temporal. Thirdly, these words are no way appliable, to the practice of courts ecclesiastical: for albeit under the name of bailiff an Ordinary might be understood (which were very harsh, insomuch as a bailiff is but a reeve of a Bail or Liberty) yet is it not holden by any law ecclesiastical; that upon an Ordinaries own bare saying, whether he have witnesses after to be produced or not; a man may be put to an oath. for there must be some better matter of inducement, to open way to the enquiry, whereupon the oath ensueth. Lastly, this statute will rather hurt, then help forward these men's purposes, if an Ordinary might here be understood by a Bailiff. because (if I conceive the matter aright) by this is implied; that so an Ordinary be able to bring in good witnesses; he may then upon his bare saying put a man to his open law, or to an oath. But hereupon would follow, that Criminal prosecution without any accuser or other party, and so ex officio mero; yea and without any presentment too, may be lawfully admitted: and (which is most to our present purpose in handling) that an oath (in such case) by him may be imposed, in any matter aswell Criminal as other. For here is no distinction made of any one kind of cause from another, and they which allege it, do bring it to impugn 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 be considered: the whole words 1 Marlebr. 52. H. 3. cap. 22. whereof are these: none from henceforth may distrain his freeholders; to answer for their free holds, nor for any thing touching their freehold, without the kings writ: nor shall cause his freeholders to swear against their wills, for no man may do that, without the king's commandment. But the Treatisour leaveth out the first part which showeth, how the second that he allegeth, is to be understood. And because (like the lapwing with her diverting c●…ies) he would lead us further and further from the matter (herein) chief to be respected: or for that he thought we would make some advantage hereof; he saith, that the king's commandment importeth here thus much, viz. according to the law & justice of this Realm; and for this quoteth a book thus: 2. R. 3. The book he meaneth (as I guess) is in 2 Mich. 2. R. 3. sol. 11. these words: wheresoever a man for offence, misprision or otherwise, is to make fine or redemption all the justices agreed, that those justices before whom he was committed, etc. should take surety and pledges for the fine, etc. and after by their discretion they should assess the fine, and not the king in his chamber; nor otherwise before him; but by his justices. and so is the kings will (in statute) to be taken, viz. by his justices and his law, which to say, in effect is all one etc. Where you see, that the book speaking of justices (viz. the men before whom the conviction was made) he referreth this to the justice of the land. But though it be neither off nor on, to our Principal purpose; nevertheless it seemeth, this book is not truly applied by him unto this statute: and that by the king's commandment in the statute; the king's writ is to be understood, (as in the first part of that statute is plainly expressed) rather than any determination or Act of his justices of the Bench. Touching the statute itself; the words do evidently show, that neither oath in cause criminal, nor any Court Ecclesiastical is thereby meant. there is only forbidden, that lords of manors shall not enforce their Freeholders that hold land of them, whether it be by distress or oaths, to answer in their Courts baron, touching the estates they have in their lands. because neither the lords own courts (in such a case) be competent or indifferent, for fear of unlawful eviction; nor the goodness or weakness of the states men hold, are meet to be fished out by their own oaths in satisfaction of their lords greediness, to have their lands: except the king by his writ shall so especially command. And yet hereby we see, the statute leaveth it at large at the king's pleasure, to warrant even this course: and therefore this is not simply unjust, but inconvenient only, for lords so to urge their tenants. He allegeth further (against these oaths) a statute (as he saith) made 43. Ed. 3. ca 9 that no man be put to answer without presentment before justice, or matter of Record, or by due process, or by writ original after the ancient laws of this land. But I do find no such statute either in that year, 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 prove an unlawfulness of oaths ministered unto defendants in matters criminal, whereof there is no shadow of mention? it rather speaketh of matters that ought to go afore proceed criminal at the common law. and what makes this against Courts Ecclesiastical? would he have them to proceed in the self same manner, that common law courts do? he might aswell exact of them, Indictments, and afterward trials by juries of twelve. and yet Ecclesiastical courts put none to answer, but upon more than one of these, or at least that which is equivalent at that law, unto these at the common law. For first, courts Ecclesiastical have great use of presentments and complaints or denunciations before the party be called to answer; as is showed in the second part. Then the defendant is not called neither, but by due process; as by letters missive, or by attachment in Courts of Commission; & by primary citation, in Ordinary Courts: which have a correspondence unto original writs at the common law. So that of four matters, whereof some one or other of them is thereby required; three of them be used in Ecclesiastical proceed against crimes. His next proof (of this kind) coming to be discussed, is out of the 1 25. H. 8. cap. 14. preamble of a statute of king Henry the 8. which preamble (for brevity sake) he omitteth: yet he omitteth not to gather therefrom, that which was never scattered, viz. so we see (saith he) that under cloaked and covert terms (of Canonical sanctions, viz. used in the statute 2. H. 4.) the clergy men usurped (unjustly) jurisdiction over the people, ministering unto them captious and snarling Interrogatories: and (as it should seem by histories) upon oath, contrary to the true meaning of the law and lawmakers, and against the right order of justice and all good equity: impugning thereby the royal prerogative, the imperial Crown, the Princely sceptre, laws, and policy of this kingdom: for which cause he saith it was repealed. These be imputations of great and high matters; which he avowcheth to be by such oath impugned. which though he say we see by that preamble (though indeed he would not let us see it) yet when all is cast up, his proofs are no more but thus, viz. as it should seem; but how much hereof may (in truth) thence be seen either plainly, or by any seeming; I would the clearest sighted of that opinion, would take the pains to peruse; that he may withal discern, with what upright minds and sincerity, some of his chief complices do write of this matter. For the very true and only causes of repeal of the statute of heresy, 2. H. 4. by the preamble of the said statute 25. H. 8. (now likewise standing also itself repealed) are assigned to be these, viz. the not declaring thereby what should be heresy. The term of Canonical sanctions, and other terms thereof, so general: that the best learned could scarce avoid the danger of heresy, if he should be examined upon captious Interrogatories: the unreasonableness of being put to loss of life etc. upon suspicion, and without accusation or presentment: whereas for treason it must be upon presentment, verdict, confession, or process of outlawry: and, for that speaking or doing against the Canons etc., of Popes (being but humane, yea, and many of them contrary to the king's Prerogative Royal) is by the said Canons, made to be heresy. so that there is not one word mentioning, much less tending to the condemnation of ministering oath; no not so much as in the crime of heresy, which is capital: nor yet any of the other great thunderclaps which the Treatisour pretendeth he saw or heard of in that Preamble, against oaths in some criminal causes. To this purpose he would have us further note, that the statute of six Articles doth not enact nor allow, but that it seemeth rather to disallow, and ●…iect these oaths. Why Sir, it speaketh not of them at all: and can you therefore gather, that it doth not allow, but rather disallow them? you might so reason against them, from all the statutes that ever were made touching any different matter whatsoever. But (say you) it seemeth rather to disallow them: is not this seeming a sound demonstrative argument, to overthrow a course so long and so manifoldly used, and that in the courts of both sorts? but why doth it so seem? forsooth, because the king is by that statute authorised to direct Commissions to Ordinaries and others, to take information and accusation, by the oaths of two sufficient persons at the least, or by verdict of twelve men. What then? therefore the examination of the party upon his own oath (when he is found out) because it is omitted, is disallowed? Though this lose reason should follow; yet none oath should thereby be touched, other then ministered in matters of heresy. But if he might reason thus: because those Commissioners might begin and ground their proceed done by way of special enquiry in processu punitivo, upon such information, accusation, or verdict; therefore they might not proceed afterward, according to any course of the law ecclesiastical: then might he as well also argue, that they might not deal upon an heretics own voluntary confession. for confession is no more mentioned in that Statute, than the defendants oath is. But what if that Statute had expressly disallowed that oath, is it not now repealed? and is it worthy to be alleged, seeing he elsewhere chargeth it, to be A bloody and cruel Statute? I perceive it is very lose and bad stuff, which he will not take hold of; where he may have but as much as a shadow or glimpse of any thing to his purpose. May it be thought, that any man of judgement can be (in deed) ignorant; but that such sharp and pregnant conclusions, as throughout his whole Treatise he inferreth; cannot (possibly) be grounded upon so feeble and unconsequent premises? yet he sticketh not upon these allegations aforesaid, even as if he took them for good and sound arguments; as a well-willer of Ordinaries, to dissuade them from further practice of such oath; lest they be found thereby, not only impugners of the Royal Prerogative, but discredited further by the breach of their own oaths, taken to the Queen's supremacy. Nevertheless, lest I be mistaken by any, it is to be remembered, that he (commonly) limiteth all his hot conclusions with some wary words of restraint, as these, videlicet, such oaths, and such like, etc. always conveying under them, a reference unto general oaths, according to his first untrue issue. Well, this helpeth his cause never a deal. for if none of his reasons brought, do so much as overthrow those unreasonable oaths (which are by no man defended) how much less can they touch those particular oaths to matter in fact only, that we do reason and treat of? The reasons which he setteth down as taken from the Reports of the common law, do now follow. which are partly by propounding some examples, how oaths be there used: & partly by avouching some cases, seeming unto him, to infer a condemnation of defendants oaths, in any causes criminal. Before he come to the first of these two, there be sundry conclusions propounded by him: for proof whereof, all his reports out of the Common law, be laid down. First, that he may (as he saith) deliver our laws & justice of our land from so foul a slander; as that they should be said to allow of such Catholic oaths: Next, to assure others (like as himself is sure) that such a general oath, or such like ex officio was never offered by any Magistrate, nor taken by any subject, by authority of the common law. Thirdly, that the Common laws have not imposed, or appointed an oath to be used, otherwise then according to the right institution thereof, and the godly rules before (by him) remembered: What those rules are, I have noted in the Epistle to the Reader. Now if by these words, videlicet, (such like ex officio) he mean only such general oaths, as afore he had (untruly) imputed to Ecclesiastical courts; then will I not traverse any of these conclusions, whether the oath shall be ministered upon the judges office only, or at a party's instance. Yet upon view of his proofs for them, which shall follow; I would the Reader might be pleased to consider; whether I had not just cause to put them down for bare affirmations unaccompanied (in truth) with any reason. Fourthly, those book cases are brought, to show; that the common laws, yea the common wealth itself hath ever rejected, and impugned this manner of swearing, whereof we now entreat, as a thing unlawful, and injurious: But this last we may not so easily yield unto him, without betraying the truth; as we yet (verily) take the matter. The examples then which he bringeth in proof of those conclusions, and withal to show how oaths be ministered at the Common law, are of witnesses deposing betwixt Prince and subject, or betwixt subject and subject: of defendants waging their law in personal actions, with two other swearing with them: which wager is never admitted, where there is witness (though but one) or matter of record, or the parties own hand writing: of a tenant in a real action waging his law of non summons, for safeguard of his land, as having none other way to relieve himself against the false return of the Sheriff: Of examining the garnishours, returned (when the plaintiff recovereth in a Scire facias by default) upon an action of deceit, brought by the defendant against the Sheriff: and of a Tenant in a Praecipe of land, casting an Essoigne of the King's service, where the Essoigner shall swear, that it is no feigned excuse. Out of these being granted unto him, I trust neither he, nor any Logician in the world, shall be able ever to draw any sound reason so much as against those general and Catholic oaths; with which (throughout) he chargeth Ecclesiastical Courts, howbeit very unjustly. but much less against those special oaths of defendants in some criminal cause, whereof we here entreat. for the reason from these, must thus of necessity be gathered: these oaths are used, and are lawful, therefore the use of oaths in any other sort, is unlawful. Therefore to press us yet further by some examples out of that law, he saith: It hath wholly forborn to minister oaths in criminal causes. for that in wisdom it was foreseen (by reason of man's frailty) what danger of perjury a man was likely to fall into for safeguard of his life, for preservation of his liberty, credit, and estimation. The great presumption and danger of perjury, if a man should be sworn in a cause Capital unto him, I can easily yield unto. and that the sentence out of job (to that end) is very apposite. but for avoiding some restraint of his liberty for a time, or for the only retaining of his wonted credit and estimation, that a man which hath any fear of God at all, or but any slender spark of godliness and true religion; would wilfully (through perjury) throw his own body and soul into hell; neither law, nor yet any nation in the world, that I can read of, did ever presume. And if great likelihood and doubt of perjury be so effectual a motive for all wise Magistrates to forbear giving of an oath: then must he also condemn oaths, in most of the said examples by himself afore alleged and commended. for who is ignorant, but that (in most men) there is more danger of perjury by swearing about debt and detinue to save their goods, then for their goodname, as is somewhat touched 1 Vide 3. par. c●… afore? Hereupon than all wagers of law, should be unlawful, yea not only for getting, or keeping of goods; but especially for lands, this danger of men's own perjury is apparently great; in that it is much more common to suborn others thereunto, for this end; then for preservation either of liberty, or of good name and honesty, when these hap to be likewise questioned. so that, for danger & presumption of perjury; the tenants oath of non summons (who is otherwise to lose his land) should not be admitted by his own reason. Again, if this fear and doubt be so forcible and necessary a ground of forbearing to minister oath: then what will the Treatisour say unto those wagers of law allowed of, & made (as by the books 1 M. 8. H 6. fo. 15 H. 20. H. 6 fo. 16. H. 22. H. 6. fol. 41 of terms & years doth appear) whereas both the plaintiffs were upon their intention, examined by their own oaths; & the defendants also were permitted to wage their law? do not these crosse-oaths infer periculum periurij, either on the one side, or the other (seeing thereupon oath may be against oath, either directly or by implication) much more than any oath doth, whether it be general or special, in criminal causes, that he or others do impugn? Furthermore in these wagers of law upon actions of debt or detinue, or in actions real; this danger of perjury is enforced, not only by the consideration of the extraordinary care, which most men have, of keeping, or getting goods & riches by hook or crook; but somewhat also in regard of their own worldly credits and honesty; if the retaining of that be of such moment, to induce perjury, as the Treatisour imagineth. For when one of these defendants, hath (a good while) stoutly & publicly stood in denial of the matter, for which he is sued: will he not take it to be a reproach unto him, to have it discovered (by his refusal to swear) that he hath so confidently & so long avouched an untruth, even to defeat another man of his due and right? and therefore by all likelihood, what to avoid loss on the one side, and shame or obloquy on the other; will scarcely stick, to hazard an untrue oath. Lastly, it is both lawful & received by practice also, when 2 Brooke titulo jurisdiction. nu. 105. juries for trials of matters betwixt man and man, or upon life and death, cannot agree within the time of the abode of the justices of Assizes in that County; that then they shall be carried along with the judges in carts; till they shall all condescend & agree; and in the mean time they are to be kept from all meat, drink, and candle light. and may not this course, drive such of them, as cannot satisfy and conform their own consciences to the rest of their fellows; to yield (at length) even unto damnable and wilful perjury, rather than miserably to famish, and to perish for want of food? We may therefore conclude, that every presumption or peril of perjury ought not to be holden sufficient; to take away the use of oaths (otherwise being expedient) from amongst the societies of men. The Treatisour bringeth one other example of oaths, out of the reports of the common law: it is the vicar of Saltash his case, 2. H. 4. by which (he saith) the unlawful imposing of an oath upon him appeareth. But it is not any unlawfulness (simply) of imposing an oath that there appeareth, or which was condemned by denial of a consultation; neither was it imposed, but voluntarily taken: but it was, for that the Pope's Collector (who had in England no jurisdiction) did convent the said vicar afore him ecclesiastically (at the suit of the Dean of Windsor) for breaking his oath taken afore the said Collector, to perform the condition of an obligation, that he the said vicar had entered into, which is a temporal cause. What then doth this make against oaths imposed upon defendants in some criminal causes? For I trust (though the Collector had unlawfully imposed it) the Treatisour will not thence reason thus mightily against us, viz. This was an imposed oath in a civil cause, but it was unlawful, therefore all imposed oaths in any criminal cause are also unlawful: For this reason is ex meris particularibus, & hath quatuor terminos: & beside, is a fallacy of the Accident. Seeing is was not therefore unlawful because it was imposed; but upon the other grounds alone. Hitherto touching examples of oaths, alleged out of the reports of the common law. Now follow these reasons that are used, as for a more direct condemnation (by the common law) of oaths imposed upon defendants, in some Criminal cases: in which behalf, the Notegatherer saith; that nemo tenetur seipsum prodere, is the common custom of England. I will not greatly stick with him herein, so it be truly understood. albeit this maxim being taken notoriously out of the Interpreters of Civil and Canon laws: I think he would have much a do to find it (by any book of the common law) to be the common custom of England. It is true, that when a mans own fault is secret, and not any way bruited and published abroad: he himself is not bound by law to make confession thereof, to any Magistrate or officer Civil or Ecclesiastical; whether he be urged to swear thereupon, or otherwise. for in such case, it is simply secret, and the Magistrate (except he should minister a general oath, like unto the Popish charge at shrift, not warranted by any law) cannot possibly in special or particular manner interrogate him of that, whereof he never heard, nor once dreamt. But if a man be once discovered thereof by Presentment, denunciation, Fame, or such like, according to law: then is not the fault simply secret, but revealed (in some sort) abroad, or to the Magistrate. who for avoiding scandal to Christian religion, and for reformation of the party, may thus inquire 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, etc. tenetur seipsum ostendere. Any more exact or further discussing hereof, is not of this place: I do 1 2. part. ca 6. & 7 3. part. ca 9 therefore refer the reader, to the places of this Apology here quoted in the margin. The only case carrying any show or colour of condemnation of oaths in any cause criminal, at the course of proceeding by common law; is alleged by the Treatisour out of the 2 Li. Assisar. 4. 9 E. 3. Assis. 1. sol. 316. book of Assizes. there, certain returned of a jury, being ready to be empaneled with others, were challenged: some of them, for that it was supposed they had declared the right for the one party, 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. Now it is thereupon further reported; that such of them as were (in the first respect) challenged; were sworn to give evidience to the jurours: and that it shall be so in like case, where the challenge sounds not in reproof or dishonour of them. but for those which were challenged, that they had received money of the party; this challenge was tried by the tryours, without having any evidence by their own oaths, Causa qua supra. whereby he would gather, that an oath may not be given in any cause at all, where the parties own honesty may be touched. But he might with better reason have gathered (out of the former part of this case) the very contradictory hereof. because it is very small honesty, for any man, (in some sort) to offer himself to be sworn as an indifferent jurour: when he is (indeed) unindifferent, & his judgement so forestalled; as that he hath taken upon him to scan the right for the one party, before he be sworn, or have heard the evidence for the other. yet nevertheless these challenged persons were put to give evidence (hereof) to the jurours, upon their corporal oaths. Concerning the other persons (challenged to have received some money or fee of the one party) that it was thought good, that they should not be examined by oath hereof; (because it was a matter, that might tend to their reproach and dishonesty) cannot infer this general conclusion, viz. that in no cause whatsoever, a man may be put to an oath, whereby his own turpitude and dishonesty, may be discovered. For this was, but in a particular point of challenge, where the persons challenged were no defendants, but came in to be jurours, a kind of tryours and judges; and against whom, there was no lawful inducement for the judges, to impose such oath; other than the challengers own exception. But that is not sufficient to cast over the clearing or proving of the point objected; upon him, that is challenged, and so from the challenger; who (by law) is to come prepared, and to make proofs of his own intention, which he affirmeth: because nemo praesumitur malus, donec contrarium probetur. and therefore the putting of the trial of the challengers assertion here, unto the tryours: was a favour done unto him, by the judges: more than the Civil laws (used abroad in other nations) would have admitted. For he that will except, must (at his own peril) of losing the advantage thereof, without any help of the judges office or of the parties own oath, be able to prove his exceptions. And therefore, if this very case had been in a Civil or in an Ecclesiastical court, that is guided by those two laws: the parties so challenged, yea, though they had been Accusers or witnesses, and much more being returned for jurours, who are a kind of Recuperatores or Pedanei judices; should not, ne are bound to answer such exception touching their crimes, upon their own oaths. For further declaration of which point, that when an answer in a criminal cause ought to be made by virtue of a man's oath, and when it may be refused; I refer you to the ninth Chapter of this third part. So that the judges did (herein) very gravely, considerately, and but according to equity, and to the common law of all other civil nations. The Treatisours next objection to like purpose, is out of judge 1 12. Reg. Eli. fol. 288. titul. Periuric. nu. 51. Dyers book, and it is in the very book itself, thus word for word: A bill of perjury was sued in the Chancery, as for perjury committed contra formam statuti anno 5. Reginae nunc. and it was doubted, if the defendant would plead not guilty, whether he should be sworn to his Plea and also to answer to Interrogatories, as is used in the starchamber: And it was resolved by the opinion of Catline, Dyer, Saunders, and Whiddon; that he should not be examined nor sworn upon Interrogatories: except the court of Chancery had absolute authority, and had used to examine perjuries in that court, before the Statute: for then this is still reserved by the last Proviso of the Statute, as it is also for the starchamber: Otherwise if the court of Chancery will examine perjury, committed there (as it may by Statute) this must be by Latin Bill, and be pleaded in Latin, and issue must be joined there, to be tried in the King's Bench, as in like cases is wont. In this whole report, as there is nothing that tendeth to the absolute impugnation of oaths, in some causes criminal: so is there not any point, which we do not willingly embrace, and like of. For the Chancery being a court (by the institution whereof) to handle by Bill and answer in English, no crimes but civilly laid, and not criminally moved, to the intents of any punishment: unto which Bill, the defendants must answer upon their oaths: therefore it is no marvel, when (by Statute) any new authority is given thereunto, as in this case; that then the course of the common law should be followed; except such Statute do otherwise determine. But hereupon might well be gathered, that defendants oaths to English Bills (there always used) albeit criminal matters touching their shame and dishonesty, be deduced; and in other courts thereunto authorized, the continual use of such oaths, even for crimes criminally moved: are no way, against the Law of the land. For we see, that it is here yielded to be lawful, in case the Chancery had used such course afore. Also that it is usual and lawful in the starchamber: and that these judges opinions reach no further; but that the party accused of perjury, should not be examined by oath, upon Interrogatories in the Chancery, for answering of Interrogatories upon oath, is not used there; no not when the crime is but civilly prosecuted; except the other party will be contented, to be wholly concluded by his adversaries answers, that shall be so made, to his Interrogatories. Another case at the common law is alleged by the 1 Notes. tit. the laws of England. Notegatherer thus: It appeareth (saith he) by the Lord Dyers book, that one Hind being called before the Commissioners Ecclesiastical, for usury; refused to swear; whereupon he was committed; but upon an Information in the common Pleas, he had a Corpus cum causa, to remove him: so (as it seemeth) that the judges were then of opinion that the Commissioners could not then give them any such oath. hereof he gives us not any direction to find out the particular place of this report. All that I can (to any such effect) hit upon; is only this marginal note, viz. Simile M. 18. fol. per hind qui noluit jurare coram justiciarijs ecclesiasticis, super articulos pro usura. so that if this be the place; being but a Marginal note, it can not (necessarily) be fathered, as a Report of the Lord Dyers; the rather, because it is not likely that he would term ecclesiastical Commissioners, by the name of justiciarij ecclesiastici. for the perfectness thereof it might seem rather, to be some note of the Notegatherers own, than any of judge Dyers gathering. Secondly, here is no mention of hinds commitment, nor of corpus cum causa, nor that the said writ (upon information) was granted out of that court of common Pleas: so that these be but the Notegatherers own surmises and guesses. Thirdly, before it might be inferred thereof, that the justices than were of opinion, that Commissioners Ecclesiastical might not give any oath in a matter of usury; and so by like reason (as h●…e gathereth) in none other criminal cause: this case in the Margin must first be made like unto that case, which is in the text itself. Now that containeth no more, but that one Skrogges appearing before certain special Commissioners by 〈◊〉 Majesty appointed to hear and determine the validity of two several Patents of an Office; the one granted to the said Skrogges, and the other to Coleshill; and refusing to make any other answer, than a demur upon the Bill, and to the jurisdiction granted them, by that Commission; and being committed to the Fleet for such contempt by the said Commissioners; was nevertheless by a Corpus cum causa, out of the common Pleas, removed from prison, because he was a person belonging to that court, and a necessary member thereof. But where doth it appear, that this Hind was likewise a member of that court? Or how can these be like cases; when as in Skrogges cause, none oath was urged, neither was the Plea betwixt him and Coleshill criminal; as this was betwixt the office of the Commissioners, and Hind? Or where may hinds case at large be found in Michaelmas Term 18. Eliz. seeing no such matter is in the L. Dyers reports of that year? Or how can it be made to appear; that the Commission Ecclesiastical was then perused; the Statute whereon it is grounded, considered of; the whole matter argued, and debated; any such opinions yielded; or yet that Hind was not by the court sent back again to prison (though it were admitted he had once such writ) as many other (in like cases) before, and since that time, have been? for all the similitude, which that Note mentioneth; might rest in this one only point, viz. that as the one being committed for contempt, by virtue of the Queen's special Commission; had notwithstanding, his writ of Corpus cum causa; so the other had it likewise granted. But there might also be (in the eighteenth year of her Majesty) other good cause, to deliver Hind clearly out of prison, being called before the Commissioners into question for usury, if it were not above ten in the hundred. and yet oaths in any criminal cause beside, ministered by Commissioners Ecclesiastical; shall be no whit thereby impeached, or prejudiced. because afore that, viz. in the thirteenth year of the Reign of her Majesty, a 1 〈◊〉. Eliz. ca 8. Statute was made; forbidding any punishment, then that which is contained in that Act, to be inflicted by laws Ecclesiastical upon usurers; so their usury amount not above the rate of ten in the hundred for one year. therefore it might well have been, that Hind was so delivered from his commitment; not in respect of any unlawfulness by the judges deemed to be in such oath; but for that the conysance punishment of his crime (by reason of that Statute) belonged not then, and in that case, to an Ecclesiastical Court. This point the Treatisour further enforceth also; by the forms of a piece of a precedent of a prohibition, and another of Attachment thereupon, laid down in the printed Register; especially by these words of them; Recognitiones & sacramenta, provoluntate sua; & ipsis invitis. For full answer whereof, to avoid unnecessary length and vain repetition; I must refer the Reader over unto the xj. and xii. Chapters, in the first part of this Apology. He affirmeth also: that the practisers of such oaths, are for that cause in a Pramunire; and therefore gathereth, the oath to be contrary and repugnant to the common law. I grant the consequence to be good and sound: but how doth he prove them to be thereupon in a Praemunire? For proof of this, he assumeth; that this manner of oath is contrary to the Queen's regality and crown. as if his reasons afore brought, had sufficiently evinced so much, which we do utterly and resolutely deny unto him. And yet, as if he had fully cleared that point; he addresseth himself to prove that; whereof there was less controversy, viz. that what is done by a Bishop, or by an Ecclesiastical Court, against the King's regality and crown, hath been heretofore adjudged to be within the compass of this word Alibi, contained in the Statute of Praemwire 16. Ric. 2. For this he allegeth two books of the common law: yet 1 5. Ed. 4. sol. 6. Praemunire. the first of them, doth but speak of an excommunication by a Bishop, & not of every dealing whatsoever in a matter belonging to the King's regality. And what if it had been twice so adjudged; both of them in such corrupt times, when as the royal prerogative of the Kings of this land, to be Supreme Governors in all jurisdiction Ecclesiastical, due to them in right and by God's Law; was not de facto united to the crown. For the Bishops then, did not claim their jurisdictions Ecclesiastical, next, and immediately under God, from the Crown, as now they do. But seeing this part of Regal power is now no less truly and fully vested in the crown, then is the Temporal; so as the Laws allowed for the government Ecclesiastical are termed by sundry Parliaments, The Queen's Ecclesiastical laws, and, Laws of the Realm; as well as those which were first and originally made here. And the Bishops are proved to have their authority, and jurisdiction Ecclesiastical, derived down unto them from the Queen's Highness, under the great Seal of England, as upon sundry incident occasions hath been showed afore: Is it then the like reason still, to comprise their jurisdictions and Courts, under that word of Alibi; as if their Courts and jurisdictions were not now the Queens; nor yet belonging unto her Regality? Nay, let such as shall so affirm, beware they incur not (hereby) the danger of implied, if not direct denial; of a part of her highness Royal style; and the breach also of their oaths taken, for assistance and defence of all Prerogatives, etc. united or belonging to this Imperial crown. Yea, and though this might be truly verified of ordinary Courts Ecclesiastical, yet is there no colour at all so to affirm; of the Commission Ecclesiastical, exercised under the great Seal of England, by force of the same Statute, that restores the Supremacy Ecclesiastical to the Crown. I omit here, what is touched else where, viz. how by sundry learned, it hath been thought; that by Alibi, there was included or meant nothing else; but matters of that quality there specified, which were enterprised by, and under the Papal authority; though the Pope (perhaps) resided not then at Rome itself. Therefore (seeing this is not pregnant enough for him) to drive this matter nearer home to his purpose; he sayeth it is against the King's Regality, and so a Praemunire for an Ecclesiastical Court to hold plea of a matter appertaining to the judgement of a Common Law Court, or to deal in any cause not belonging to Ecclesiastical jurisdiction. The first of these he proveth; by the pardon sued by Barlow Bishop of bath and Welles in king Ed. 6. his time; by reason he had deprived the Dean there, being a mere donative of the Kings. If there were but any probable doubt, whether (thereby) he were fallen into a Praemunire; it was wisdom for him, to procure a pardon (afore hand) if he could. Alealitis, resincertissima. yet depriving of one, placed by the King; is much more than bare holding of some plea, that appertaineth to a temporal Court: beside that there was a further matter in it, than I last here to open. The other allegation of his to like end; taken from a 1 38. Ed. 3. of Provisours. Statute, doth make no show of proof thereof: for it is but thus, viz. the King chief desireth to sustain his people in tranquility and peace, and to govern according to the Laws, Usages, and Franchises of his land, as he is bound by his oath, made at his coronation. And are not Ecclesiastical persons now part of the Queen's people? Are not the Liberties and Franchises, that be given and confirmed unto them, by the goodness of Princes, for holding plea in certain matters, the usages of this Realm? Are not the received Laws, which lawfully they may practise, termed Ecclesiastical Laws of this Realm, no less than temporal be? And is not the Prerogative royal, in and for causes Ecclesiastical as high, and as rightfully settled in the Prince, and incident to her highness Crown and Regality; as the same is, for temporal power and authority? What cause is there then, seeing seu Alibi in the Statute; signifieth (in true construction) any place whatsoever besides Rome: that every holding plea by an Ecclesiastical Court of a matter wherein it ought not to hold; should at this time be reckoned, a thing contrary to the Queeenes' Regality; more than dealing in an Ecclesiastical cause, should be in any temporal Court at Westminster? For no Statute of Provision or Praemunire, assigneth these for causes; which have (indeed) but grown since by collections; whiles the Pope's usurpation was continued in this land; against which (oftentimes) the remedy by Prohibition, could not serve the turn. I grant it is a contempt or great misprision in any. but for this, a Prohibition, and attachment thereupon, etc. (as afore those Statutes they did) might sufficiently serve the turn. Nevertheless, all these matters are wholly impertinent to his purpose, till he shall have proved; the particular issue, viz. that such oath (as we treat of) is against the Queen's Regality, etc. But if that might be proved; then upon so general interpretation of Alibi; these oaths would fall into the case of Praemunire; by what Court soever, whether temporal or Ecclesiastical, they should be tendered. And that which he vowcheth to the same effect, out of Saint Germane book of Doctor & Student, receiveth the like answer. In the next place, I set some of the Treatisors reasons, that 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 oaths, and would prove the Imposers of them to be in a Praemunire, for encroaching upon the King's rights and prerogatives: and for conventing subjects by foreign made Laws: and for practising Antichristian Decrees, and Popish Canons: which (he sayeth) appeareth, by the Praemunire brought by Hun, against a person suing the said Hun for his young deceased infants bearing-cloth (by the name of a mortuary) in an Ecclesiastical Court. how doth this infer, that it is Praemunire; either to encroach upon the King's rights & prerogatives, (though this peradventure by some circumstances may amount sometimes to no less) or to convent subjects by foreign made laws? It may not be thought, that every intrusion, deteiner, or concealment (which is encroaching upon the King's right) or ravishment of his wards, which he ought to have by his Prerogative Royal; is straightway, and necessarily a Praemunire. neither were the King's Temporal Courts (in this case) encroached upon; because they could not give remedy for detaining a Mortuary, if this were so (in truth) to be accounted. neither yet is there so much as any mention made of foreign laws, which the Ecclesiastical Court then proceeded by, or practised. This course of the Treatisour, is rather to prophesy, then to reason; thus to tell us afore hand, upon the very bringing of the action of Praemunire by Hun: what the judgement was in that matter yea, and upon what ground the judgement was given in a cause, which never received judgement, for any thing I can learn. 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; judges Ecclesiastical are in Praemunire, whensoever they exceed their judicial authority. But if every exceeding of authority were a Praemunire; then what judge is there of any court (of either sort) so skilful, or always so advised; but might justly fear that at one time or other he shall not escape this rigorous doom of Praemunire? In truth, this example proveth all his three points, just alike; that is, none of them at all. I do verily believe, the Treatisour never saw that Record. if he have, either he makes very bold with his Reader, or else with the Art of reasoning, thus to collect. I have perused the Record 1 H. 25 H. 8. Rot. 42. Suffolk. itself: it containeth a suit of Praemunire brought against the said Bishop by the King's Attourny general, on the Friday after the P●…rification, pleading the Statute of 16. Ric. 2; and adding, that all Indictments, Presentments, and Impetitions in any court of the Kings, 2 B. Nixe his condemnation in a Praemunite. or in any Court of a subjects (which is in any sort derived or deduced from the King's crown) duly taken or found, are to be tried & judged in that Court, where they were found, or in some of the King's Courts; and not in any Ecclesiastical Court: and that, whereas there was an old custom in the Town of Thetford, that whosoever should trouble any of the Kings or Duke of Lancaster's tenants, commorant in that Town, and should call them by citation into an Ecclesiastical Court, out of the Deanery of the said Town; should thereby forfeit, and he also that should execute such process should also forfeit 6 shillings 8. pence. which custom, by a jury of twelve men, being (accordingly) presented before the Mayor, the said B. cited the Mayor & two others to appear personally before him, in his Manor and Chapel at Hoxne or Hoxstone in Suffolk. The Mayor and the one of the other two appearing; and having nothing objected but that presentment made; were by the B. enjoined, upon pain of excommunication, at the next court of the Kings to be holden in Thetford; to call the same jurours together, and therepublikely to adnull and revoke the said presentment, as being against God's Law. so that (saith the Record) the B. did in an Ecclesiastical Court, judge of the presentment, being duly made in the King's court: and enjoined the revoking and disannulling of it, against the King, his regality, crown, etc. whereupon immediately, the Bishop appeared, and desired liberty of imparlance till monday next after; and had it granted, upon good mainprize, etc. On the prefixed monday, the B. appeared again; and said he could not deny, but that he was culpable in all the premises, & put himself thereupon, into the King's hands, etc. & so had judgement to be from thenceforth out of the King's protection, and all his lands and tenements, goods & chattels to be forfeited to the King; and that he should remain in the custody of the Marshal, quousque etc. but presently (upon special grace of of the Court) he was let to bail, in a far less sum than afore, for his appearance in Easter term next after. At what time he appeared by his Attorney; and both he and his pledges were discharged, by virtue of an Act of Parliament made the same year. Whereby we may see, that encroaching upon the King's rights, etc. is not here specially assigned, for any cause of such judgement; and much less, is the practising of any Canons, or foreign made Laws; for they are not once mentioned: and lest of all, that every exceeding of their authority by any Court, should be a Praemunire. For the original and only cause hereof was; the B. enjoining of the Mayor, and of another townsman of Thetford, upon pain of censures; to adnull and make void a presentment, first duly made, in a temporal Court of the Kings. It is also to be noted out of the general attorneys bill in this Record: where it is said, that presentments, etc. found or made in the Kings, or in a subjects Court, which is (in any sort) derived from the King's crown, must be tried there, or in some of the King's Courts, and not in an ecclesiastical Court: that at this time, Courts ecclesiastical were not holden to be derived any way from the King's Crown, as no we they are, and so be acknowledged. and (indeed) by conferring the times, I find, that this fault of the Bishop was done in November 24. H. 8. he was attainted in Hilary term 25. H. 8. which is a year and more after, and it was in a Parliament time, that was continued till 30. Martij next aster. Now the supremeheadship over the English Church, was not yielded unto the King, until the Parliament (by prorogation) holden the third of November, than next following, viz. 26. H. 8. That which the Treatisour collecteth by Cardinal Wolsey's Praemunire, and the whole Clergies also; for assenting to, and assisting the Court Legative, which the said Wolsey had erected; he himself doth sufficiently confute: for albeit he do affirm; that Wolsey was in a Praemunire for prejudicing but ecclesiastical Courts, and not the Kings; and thence gathereth thus: How much more those, which practise Antichristian Laws, and Popish Canons, repugnant to the royal majesty, and policy of this laend? yet doth he (by implication) contrary his own said affirmation; in that he confesseth, Wolsey did grant benefices by way of Provision. for thereby, he was within the very letter of the Statutes of Provision, and Praemunire; and so consequently, he prejudiced also the King's regality and crown, and not Ecclesiastical courts alone. Yea, and what is all this to the imposing of an oath, that we treat of? seeing (if it were true, that every practice of Antichristian decrees, and Popish Canons, were a Praemunire) yet it may be truly affirmed, that the very temporal Laws of this Realm, do allow unto Ecclesiastical Courts to minister such oaths (as shall be proved in the next chapter) & therefore not to be said to be practised by virtue of Canons only. And also, for that no Canons, that are agreeing to those conditions, and qualities which are required by the 1 25. H. 8. 27. H. 8. Statute of Submission of the Clergy, are Antichristian, or Popish, or foreign Laws; but are the Queen's Ecclesiastical Laws, and Laws of this Realm; no less than such as were originally made within the land, as is afore (by occasion) 2 Vide 1. part. ca 14. pag. 102. & 103. showed and proved. Insomuch, as the Notegatherer himself calleth them the ecclesiastical Laws of England. He also telleth us, as to this purpose of a complaint by the Commons made 21. H. 8. unto the said King touching grievances by the Clergy offered: but telleth not, that it was this matter; nor how just or unjust the complaint was found to be; nor yet of any remedy therein given. He discourseth also of the particulars of an other complaint likewise made 23. H. 8. but he doth not assign oaths tendered in some criminal matter, to be any part of that complaint. The Notegatherer saith, the L. Audley then chosen Speaker, did exhibit it; and that it was for proceeding ex officio: albeit the Treatisour do tell us, of many points beside; which (belike) if he had penned that complaint, it should have contained: This I have answered in the second part of this Apology. Another reason by way of collection, the Treatisor maketh at large thus, viz. What if a justice by colour of his office, should offer this general oath, to answer to all he will ask, & commit the party refusing; could any man justify his doing; but rather cry out against him, as a subverter, & c? Well, how strange a course soever he maketh this, and therefore so crieth out; nevertheless it may be, that little better hath been used by some justices of Peace. But I neither accuse any thereof, nor will excuse either them or any others, which shall so deal; either from the Treatisors, or from any other man's 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 ministering oath: No Canons 1 25. H. 8. ca 19 may be practised but such, as be not contrary nor repugnant to the Prerogative royal, nor to the laws and Customs of this Realm: but this Canon Law, is not any part or portion of such laws. Whereupon it seemeth he would have his Reader to conclude; that no Canon at all may be practised. First it is untrue (if you take the Canon Law indefinitely for all Canons) absolutely and indistinctly to say; that it is no portion of the Laws and Customs of this Realm, as hath been afore showed. yea, there was here an use and custom thereof, long afore it was accounted any part of the Law of the Realm. Secondly there be quatuor termini in this reason. Lastly, it consisteth all of Negatives; In both which respects, it is utterly inconcludent. So that by all hitherto delivered we may perceive; that albeit there be some diversity in sundry the courses of proceeding, betwixt the Ecclesiastical, and the temporal Laws: yet there is found not so much as any great diversity in the very point; which is of ministering oaths in certain criminal causes: and much less, is there any contrariety or repugnancy in that behalf. Besides, there is not so great diversity, betwixt any part of the law Ecclesiastical (being now of force within this Realm) and the Laws temporal; as is betwixt sundry points of the customs of London, the customs of the Stannerie, the customs of Kent, the customs of Halifax, both in trying and executing offenders, and by dealing by virtue of the Queen's Instructions at the Counsel of the Marches of Wales, on the one side: and betwixt sundry parts of the Common law, on the other side: as might (but for avoiding of tediousness) by sundry particulars, be exemplified. & yet none of those which practise them; are by reason of any such notable diversity only, thus threatened with danger of Praemunire. In the last rank of matters brought by him to this purpose; I do marshal the Treatisours shifting answers, unto such objections; as himself imagineth will be, or may be made by those, who defend this kind of oath, whereof we are now treating. First, to the objection made, of the like oaths ministered to defendants in causes criminal, both in the Courts of starchamber and Chancery: he answereth, that, if it were granted, that the like oaths be there used: yet would it not follow, that the same might be practised in courts Ecclesiastical. and why would it not follow? unless (saith he) the like allowance thereto, and consent of the whole Realm, might be proved. Belike, if it were not most evident; he would also deny the like oaths to be used in those two courts. The whole Realm is said to allow, and to consent unto that, which is enacted by Parliament. Shall the same course than used also in the Chancery, that hath none Act of Parliament to establish it, be unlawful in his judgement? for he cannot say, that the whole Realm, either indeed or representatively hath given consent hereunto; albeit the prescription thereof be most ancient; because all & every one in particular, have not had from time to time, judicial matters there. But yet, since this prescription is good; and will serve to maintain that course there: why shall it not also alike serve for Ecclesiastical courts, which have retained the practice of such oath, beyond all memory of man, and beyond most Records now extant? Nevertheless, there be also Acts of Parliament to warrant the practice of these oaths in courts Ecclesiastical; unless they could be proved; to be either contrary or repugnant to the Prerogative Royal; or else to the Statutes, laws and customs of this Realm. Neither yet are the examples of starchamber and Chancery, to any other end by us alleged: but thereby only to show; that such defendants oaths, inferring confession of some his own crimes; is neither to be holden unjust, unlawful, unequal, barbarous, cruel; nor yet Antichristian or Popish, as they be challenged. For a second answer hereunto, he saith: that, examples and Precedents be weak, where an express law, or certain policy, is to the contrary. as if he should say, though these two high Temporal courts do practise it: yet is it contrary to an express law, or certain policy. for else, he saith just nothing to the purpose. and yet he doth no less dutifully say it; then he proves it substantially; even out of the Civil law. viz. ius non ex regula sumatur, sed ex iure quod est, regula fiat. I pray ye, who ever heard afore, that regula here signifieth an example, or a Precedent. The true understanding therefore of that part of Civil law, is this: when many cases run one way, so that (for roundness, or better memories sake) they have been (by judicious men) contrived into a summary rule: than whatsoever might be comprised under the generality of the words of such rule, was not strait way to be reckoned for law. because it is not possible (in this great weakness of man's wit) so to comprehend the law, being to guide such infinite variety of men's particular external actions in a brief rule; as that it shall not have sundry exceptions and limitations: and therefore rarò est quin regula fallat. And again in this place, non ex regula ius sumitur, etc. that is, you can not conclude it necessarily to be law: because you may apply unto it, some rule of law: but because the law runneth accordingly in sundry cases: you may therefore conveniently draw them into a short rule, which some do call maxims in law, yet abusively. Thirdly he saith to this objection: that by better Logic we might conclude thus, viz. because in these two courts, answers be put in upon oath; therefore the same may be used in the King's Bench, and common Pleas: which nevertheless were an absurd conclusion. No Sir, it is so far from better, that it is not any Logic at all so to conclude; except you add more unto it. for if you could truly add, that the King's Bench and common Pleas had time out of mind used that course for answers to Bills in crimes not capital, nor tending to mutilation of limb; which may be verified of courts Ecclesiastical, besides the direction of that law, by which they proceed: then, with very good Logic might you conclude thus: the same course hath time out of mind been used in all those courts, and it is not unjust nor cruel etc. in the one, and therefore not in the other. for the diversity of places where they sit, nor diversity of persons which do sit as judges, nor any other like circumstance; cannot make a matter just and equal, if (in his own nature and simply) it were unjust, cruel, or barbarous, as this is often by him, and others challenged to be. Fourthly he saith, that in the starchamber, there is a bill of complaint formerly exhibited: and so be there Articles in an Ecclesiastical court. Fiftly, that, there is also a known accuser: Not always an accuser; for the office or common Interest of the Prince (whose the court is) oftentimes is there excited & stirred up by her majesties Attorney or Solicitor; without any danger of them, to be punished, or condemned in charges, though the matter should not fall out fully against the defendants: even as it is in courts Ecclesiastical, when they proceed of Office. albeit these more often proceed, having a private Prosecutour (especially in the court of Commission) than they do ex mero officio. Sixtly; that, in the starchamber, they have a copy of the complaint: yet he himself doth limit it thus, viz. so it be not o'er tenus. Well then (upon some good occasion) it is none unjustice; though the defendant want a copy altogether, of the matter objected, but in all ordinary courts, and in the Commission Ecclesiastical (at the furthest when they have answered the articles) they have copies of them. Seventhly, in the starchamber, the defendants are allowed counsel in answering the Bill: and yet, when this is over tenus, he knoweth they cannot have counsel, neither are they there allowed any counsel for answering to Interrogatories; nor yet to have a copy of them, till they have fully answered to them. which Interrogatories upon crimes in that court, have a correspondence unto articles criminal, preferred in Ecclesiastical courts. Lastly, (saith he) in the starchamber, if the Interrogatories be impertinent; the defendant (without offence) may refuse to answer them: and so may he refuse also to answer such articles in an Ecclesiastical court. But who shall then judge, whether they be impertinent, or not? shall the party himself? no verily, but, (as it is in the starchamber) the court itself: or else some of them that are skilful in law; being thereunto required by the rest. Whereupon, what great difference there is in any circumstance, much less in matter of substance, betwixt the proceed in these courts, may easily be considered: howsoever he do largely conclude thereupon (after his old manner) that there be mighty and great dissimilitudes. For in his conclusion hereof, he includeth also other differences more bitterly, and not spoken of at all in any his premises, whereupon he inferreth it, albeit that such his additions be also very untrue: as that, Ecclesiastical courts give oaths without all course of judgement: that the oaths there, are made suddenly, without all discretion; upon uncertain demands: that their oaths do foolishly wander, at the doubtful will of a subtle and sly opposer: and that the oath in Ecclesiastical courts, constraineth the revealing of words, deeds, and thoughts, though never offensive to any. Belike then, where others be offended, he minds and will not stick to allow unto those courts, the ministering even of these general oaths: which he so often (besides the purpose) harpeth upon. Let us then lay aside these imputations (being utterly untrue) which he coucheth together in his conclusion, made of this point, viz. concerning the like course objected to be used in the starchamber. what then do all, or any the former differences of proceeding by him noted; betwixt the starchamber, and courts Ecclesiastical make, to prove the unlawfulness of ministering an oath in a criminal cause, which is the matter only in issue here betwixt us? yea, though they were admitted to be (indeed) differences, which is showed, to be far otherwise? For albeit, these courts should differ in many other points, yet such difference cannot prove an equity to be in the very like oath, when it is used in the starchamber, and an iniquity to be in it, when an Ecclesiastical court doth (in the like case) minister it. Truly, he might out of those differences as well conclude thus: the starchamber is kept, and the oath is ministered at Westminster: and they have in that court, but three or four Attorneys: therefore the very like oath ministered in the Consistory at Paul's, where there be a dozen Procurators sometimes present, is unjust, and unequal. This therefore falleth into that point, which (in the Epistle to the Reader) I affirmed to be his sophistical answering of objections. He also doubteth, that the Statute authorizing the attaching of heretics by Ordinaries, made 2. H. 4. ca 15. which he termeth, the twice damned, and repealed Statute, and a bloody and boiling law: will be alleged, for proof of these oaths. In truth we should be brought to a very strait exigend; if we were forced (as he is) to run unto such repealed statutes, for proof of any principal point in controversy. Yet let us see how he assayeth to untie this knot; which he doth two ways. First he saith, it appeareth not; that thereby any authority was given to impose any such general oath. if then no such thing appear, why doth the Notegatherer, so confidently, Repugnancy between the Treatisour and Notegatherer. and so often affirm; that this oath was then first brought in and established: and therefore he 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 ministering an oath. The Treatisour goeth further, and saith; it appeareth not, that any authority was thereby given, to compel by oath, the prisoner to become his own Accuser: for that (and especially in causes of life and death) had been against the laws and justice of the land. By which restraint in this word (especially) he seemeth little less than to yield, that in other cases not capital; this oath is not against the laws, nor justice of the land. But it is very untrue to think, that whatsoever is wholly forborn in Temporal courts, should therefore (strait way) be accounted to be against them. For there is great difference betwixt not using, or forbearing, and plain forbidding of a thing to be done. Furthermore, we are commanded in 1 1. Pet. ca 3. ver. 15. Scripture, to be ready to give an account to every one that asketh us a reason, of the hope that is in us, with meekness and fear. If to every one, much more to a Magistrate. What then if he (having also authority to impose oaths) will exact it in this case? may he not as lawfully do it, as without oath, he may ask and interrogate the party? Now it is no more lawful before God, for us (being but asked of our faith, or hope, even by a private man) to dally with him, or to say untruly, though it might save our life: then we may say untruly, when we be sworn to tell the truth thereof unto a Magistrate. 2 Ecclesiast. 4. ver. 30. do not gain say the truth in any case (saith the wiseman:) and again, be 3 Ecclesiast. 41. ver. 21. ashamed of untruth before a Magistrate; or a man in authority. So that hereupon it may seem, to be against God's law; to set any man at liberty from answering truly, touching his faith and hope; and so in heresy: when, how, and by whomsoever, he shallbe interrogated; yea though danger of death might ensue thereby unto him. His second answer to that statute, is, that, if this oath be implied under the word of Canonical sanctions, mentioned in that statute, than was it no binding law; nor gave sufficient authority, etc. because all laws of man, repugnant to the law of God, are merely void. Where he assumeth as granted; that this oath is repugnant to God's law, which shall (God willing) be proved far otherwise. The last point, which to this purpose he supposeth will be objected, is; that, the kings heretofore have granted Commissions to examine by oath. This, he thinketh, cannot be proved: and though it could; yet (saith he) such Commissions are against law, and therefore void. Therefore, until they be proved to be herein against law, this answer will fall to nought; and the objection will remain till then good and sound. And so I end this tedious Chapter, made in answer of all that which I find brought for proof; that these oaths (whereof we argue) should be contrary or repugnant, unto the statutes, common law, or customs of this Realm. CHAP. VIII. That ministering of such oaths, is by the Laws of the Realm, allowed unto judges of Ecclesiastical courts: and some few objections made to the contrary, are answered. THat the laws of the Realm allow it unto courts Ecclesiastical (which point comes next to be declared) these few allegations following, may suffice. 1 〈◊〉. H. 5. ca 〈◊〉. Ordinaries are authorized, to inquire of the foundation, estate, and governance of Hospitals (being not of the King's foundation) and of all other matters necessary in that behalf; and upon that, to make correction and reformation: how? after the laws of holy Church, as to them belongeth. Now by those laws, Enquirie, touching crimes not capital, is made by the defendants oath: as in the next Chapter following is declared. So that (if any such faults be) the persons visited are to discover them, upon their oaths: which cannot be intended, but that they may be criminal and penal to themselves: because the statute saith, that they are to be corrected and reform. If 2 Clerks be convicted before Ordinaries of incontinency, by examination, and by other lawful proof requisite by the laws of holy Church, they may be committed to ward. But it is showed afore, that examination (even at the common law, like as at the Ecclesiastical) is upon oath. So that such oath is (by the judgement of that statute) deemed a lawful proof, requisite by the laws of holy Church. Executors & 1 21. H. 8. ca 5. administrators must give oath (before Ordinaries) of the truth of such Inuentaries, as they do exhibit. Yet this may imply in it, either perjury, or some discovery of a man's own fault; if he have dealt therein corruptly and fraudulently. And another 2 27. H. 8. ca 10. statute (though standing repealed) yet giveth good testimony, that not only Enquirie at an Ordinaries visitation; but also, that the parties own examination, of whom the enquiry criminal ex officio is made; is holden for a due course of the law ecclesiastical, not disallowed of by the laws of the Realm. And such examination is done by oath, according both to that law, and to the Temporal in like behalf; as hath been showed out of justice Brookes abridgement. Moreover 3 1. Eliz. ca 2. Ordinaries are authorized to inquire & to punish, etc. the violation of the Act made for uniformity of common prayer: how? even, as heretofore hath been used in like cases, by the Queen's ecclesiastical laws. But such enquiry general is prescribed, and so was always practised, by the oaths of men: and the enquiry special is, and was used by the defendants own oath, in case he should stand in denial. The oath of 4 5. Eliz. ca 1. Supremacy may be given ex officio (by any Ordinary) to a Clerk, being within his jurisdiction: yet if such Clerk do carry a contrary persuasion, it urgeth him to reveal, and discover himself, and his erroneous opinion, by refusal of the oath, or else to be forsworn. which if he list not to be, but rather refuse; then falleth he (thereby) into a Praemunire, which putteth him out of the Queen's protection, forfeiteth all his lands, etc. and condemneth him to perpetual imprisonment. In a statute made against 5 5. Eliz. ca 9 perjury the same time; this proviso is contained: that the said Act, nor any thing therein contained, shall not extend to any spiritual or ecclesiastical court, or courts within the Realm of England or Wales, or the Marches of the same: but that all & every such offender and offenders, that shall offend in form aforesaid; shall, and may be punished, by such usual and ordinary laws, as heretofore hath been, and yet is used and frequented, in the said Ecclesiastical courts: any thing in this present Act to the contrary notwithstanding. Where (I think) it will not be doubted, but that under that word punish, is understood, the whole course also used by those laws, which must needs go afore and do tend to the convicting of such faults, as be (thereby) to be punished. It was never claimed, nor used by any Ecclesiastical courts either afore or after; to punish any perjury or subornation of perjury; but either for breach of oaths voluntarily taken, called laesio fidei (in sort as is showed in the first part) or else for perjury or subornation thereof committed in an Ecclesiastical court, & matter. So that it can not be intended; but that this statute, meaning to reserve unto courts Ecclesiastical if not more, yet at least the punishment of all false oaths there made, did mind withal, rather to establish then to prejudice oaths there appointed to be taken, by such usual and ordinary laws Ecclesiastical. For if oaths (especially in criminal causes) were never there to be taken: there could then be none at all, or at least there would be much less danger, of any perjury and breach of oath. In the 1 5. Eliz. ca 23. statute de excommunicato capiendo, sundry grievous crimes (being of ecclesiastical conusance) are reckoned up. thereby it is also provided, that the significavit from the Ordinary, upon any of them, must contain, that the excommunication proceeded upon some cause or contempt of some original matter of some of the said crimes, there mentioned. Now it is sure, that after appearance yielded; contempts most usually are committed, by not performing something that is commanded, according to that law. as by refusing to swear; or being sworn, to answer directly, as a man aught. So that this statute leaveth the determination of all such contempts to the disposition of that law, by which the proceeding is made. I have touched (afore in the second part) certain cases; where the common law not only alloweth, but also (in some sort above the other course) doth privilege unto courts Ecclesiastical the proceeding ex officio, against crimes punishable by that juridiction. As namely, that in proceeding against an offence, for laying violent hands upon a Clerk; Bryan and Littleton held (no man gainsaying it) that the 2 M. 20. Ed. 4. 10. spiritual court may punish it ex officio, but not at the suit of the party, lest the cannoneers be thereby kept from his absolution, till some temporal duty, be contented and paid. And 1 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 sum of money promised; there shall lie a prohibition: yet if the judge ecclesiastical shall do it ex officio, that then no prohibition shall lie. And a judgement given long afore in the book of 2 Lib. 22. Assis. fol. 70. Assizes, seemeth to accord herewith, and to strengthen this opinion. Fitzherbert in his Novanaturabrevium, reporteth the Law to be: that an 3 Nou. nat. breu. tit. consultation. foe 50. & deinceps. Ordinary may cite, & proceed against a man ex officio. pro violenta manuum iniectione in clericum. Likewise for tithes detained in the time of the vacation of a Benefice: so also he may cite those, who refuse to maintain a Curate or Chaplain, and for fornication and like offences. But by the law ecclesiastical, according to which the proceeding is, the course of proceeding against crimes and offences (for the most part) is by the parties corporal oath unto articles or positions of the very crime itself, so there be precedent, a donunciation, a fame, notoriousness of the fact, taking in the manner, or any other matter, sufficient in law, to open a way to such Enquirie. That enquiry is allowed by common law unto Courts ecclesiastical (and so consequently these oaths) appeareth also further, by two precedents of consultations, set down in the Register. The 4 Register. tit. Consultat. fol. 48. a. former of them mentioneth & alloweth of an Inquisition made by the Dean of York's Official, and of his proceeding thereupon, for defects in a Chancel, and for want of sundry ornaments, and other requisites in a Church. The 5 Ibid. fol. 54. b. other (beside a consultation) doth contain also a commandment to the Ordinary, to take full information, even by way of Inquisition, and by other means, touching the value of tithes, and to certify into the Chancery. Now all Enquirie generally (as is showed afore) is ex officio; and is by oaths of other men in general enquiry; and in processu informativo: and may be by the oath of the defendant, in processu punitivo, so the crime be not capital, or of multilation of limb. But to speak more particularly for proceeding of Office; we find there, that an 6 Ibid. fol. 51. b. Ordinary proceeded ex officio, as for a crime; against a parishioner for tithes detained by him, whiles a benefice was vacant. That it is 7 Ibid. fol. 49. 〈◊〉. allowed unto them to proceed against crimes, ad correctionem animae, we have a precedent there, of an Ordinaries proceeding against a lay man for usury, even at the instance of a party grieved. That against crimes, defects, and excesses, they may proceed & object articles ex ossicio; 1 Ibid. fo. 51. b. appeareth by the precedent there set down; where an Ordinary proceeded ex officio, to the interdicting of a church; by reason a part of divine service (as it was then holden) founded to be used in that Church, was withdrawn. Where an 2 Ibid. fo. 43. b. Ordinary proceeded ex officij sui debito, to the correcting of crimes and excesses of those, that were under his jurisdiction: and among others, objected articles against a Knight, for not sufficient reparations of a Church, tending to the correction of his soul, by reason of his detaining of that which he ought not: this is there allowed, to belong to the court Ecclesiastical, and to the liberties of the Church. Likewise we find there, an 3 Ibid. fo. 51. a. Ordinaries dealing allowed; who proceeded ex officio against one, that had laid violent hands upon a Clerk, so far forth as he dealt but for correction of the delinquent, to the excommunication of him, & punishment of his sin, without adjudging any amends to the party wronged: for this belongeth to a Temporal Court. 4 Ibid. fo. 50. a. & b. Upon a public fame arisen, that a certain parishioner did with hold his due oblations, refused to be confessed to the priest, & to receive the communion at least once a year: the Ordinary ex officio did call him, to the intent to inflict some corporal pain upon him, for correction of his soul: and this proceeding is there allowed unto Ordinaries, to be of their jurisdiction, and lawful. One 5 Ibid. 54. b. & 55. a. Lindsey a public Notary, being infamed aswell of a crimeof fornication (for so I take it, that it ought to be read) by him committed; as for contempts done to that court: was ex officio proceeded against, by the Deane of the Arches, for correction of his soul & manners. both which are there allowed (together with such proceeding) to belong to the liberty of the church, & to eccles. jurisdiction. In which copy of consultation it is to be noted, that towards the end thereof, & also in the title of it in the margin; this word defamationis, is used in steed of the word fornicationis: for actions of defamation be seldom, or never sued ex officio, but at the instance of some party grieved. Besides mention is there made of committing it within that jurisdiction; which, in desamation (that is not properly said to be committed) is not material, so the defendant remain then in that jurisdiction. and therefore, where in the beginning of that Writ, the words are printed, Super formationis, etc. and converso (which hath no sense nor yet is any Latin) no doubt it ought to be super crimine fornicationis etc. commisso. As for the 1 Ibid. fol. 45. 〈◊〉. crime of fornication, it is twice (besides) noted by the Register, that Ordinaries proceeded against it, in that form. In the first whereof it is said, that the Ordinary, proceeded ex officij debito (as bound by his office & duty) against a chaplain that kept a concubine publicly to the danger of his own soul, & with scandal of others. Therefore this crime was objected against him ex officio, for his correction, and for reformation of his manners. In the 2 Ibid. fol. 57 b. later of them, the Official of Canterb. proceeded ex officio against a vicar (for the same crime, & for contempts also by him made against that court) ad correctionem animae suae. And there it is said of both the faults, as in all the former consultations to like effect: that this is cognitio spiritualis quae ad forum Ecclesiasticum pertinet, in praemissis. And the said writ runneth thus: Cùm vos nuper ex officio vestro, fama publica referent, quod T. etc. vestrae jurisdictionis C. in amplexibus fornicarijs tenet: ipsum coram vobis in curia christianitatis pro correctione animae suae, in hac part citari feceritis, procedentes contra eum (ibidem) juxta canonicas sanctiones etc. vobis significamus, quod in causis praedictis ex officio vestro, quatenus ad correctionem ipsius vicarij, & non concernunt placita de catallis & debitis, in curia Christianitatis procedere, & ulterius ibidem pro salute animae suae statuere & facere poteritis, quod ad officium vestrum speciale noveritis de iure pertinere, prohibition nostra praedicta non obstante. So that by these so many precedents of consultations, by citations, & proceeding against crimes &c. (being of that jurisdiction) by way of inquisition or inquiry, & by the authorising of ecclesiastical judges in all of them, to proceed therein, & to do, quod ad forum ecclesiasticum noverint pertinere: & by the objecting of the crimes to the parties inquired of, ex officio juxta canonicas sanctiones, ius, & libertatem eccl. (which maybe by oath, in matters aswell prohibita quia mala, as mala quia prohibita) & against lay, aswell as ecclesiastical persons; we do conclude, & gather; that by so many judgements of the common law for crimes of ecclesiastical cognisance (and consequently in matters neither Testamentary, nor Matrimonial) any persons, whether lay or ecclesiastical, being under that jurisdiction, may be cited, (though against their wills) by Ordinaries & judges Ecclesiastical ex officio ipsorum mero. And upon appearance, may by censures ecclesiastical etc. be urged upon their oaths unto examination; & to answer matter, though it concern their own crimes. And therefore, that the laws of this land do warrant & allow, the ministering of that oath (whereof we entreat) unto Courts ecclesiastical. We do only say, that the defendant may lawfully be urged, in due proceeding of office to answer concerning some crimes of his own, by virtue of his oath. But according to the Treatisour, Notegatherer, and others, who seem to confound all proceeding ex officio; with the very ministering of an oath to a defendant, touching a crime objected against him; we might a great deal more peremptorily conclude; that if these two (as they hold) be but (in truth) all one thing, then wheresoever proceeding of office is, there such oath (of necessity) must be also ministered and taken. These proofs (last alleged) are gathered out of Writes of Consultation, after that (by the parties convented) Prohibitions had been brought, to remove the causes from ecclesiastical Courts. And therefore no doubt, but that the Law (before the Consultations awarded) was thoroughly debated; and that the parties delinquent were cited, and proceeded with altogether against their wills. For, can any be so simple, as once to imagine, that a man who is cited to answer, in a cause criminal, and to be punished or corrected for it, will willingly appear and answer; if he need not to come at all, and were therein also, by Law protected? Or that he will be at cost, to procure a prohibition to stay the dealing; where he is willing enough to be proceeded with? But besides allowance hereof, by the Statutes and Common Law unto Courts ecclesiastical; the practice also by time immemorial hath run accordingly; as may positively appear by Acts of Ecclesiastical Courts, and (by way of abnegation) may be showed from the Records at the common Law. In that (as I think) it will not in them be found; that any Prohibition (hath upon this point only) been awarded thence: or at least, upon debate for obtaining of a Consultation, such hath not stood, nor been maintained. And albeit, either upon this consideration, or some other as weak, certain evil disposed and factious persons; have long agone disputed and maintained opinion, against oaths ministered both in Courts temporal and Ecclesiastical; yet upon general mislike of such fond opinions (as may be gathered) a Provincial constitution was then agreed upon and concluded; to make even all disputations, against oaths, ministered in either court, to be heresy. which Constitution I have not hitherto found to have been misliked, much less condemned at any time since; as contrary to any the laws or policy of this land. Let 1 Constit proud haereticis. c, nullus. no man (saith that Constitution) presume to dispute etc. against oaths which are made either in Ecclesiastical or temporal Courts in cases accustomed, and in usual manner, etc. and from henceforth, let it be commonly taught and preached; that oaths may lawfully be taken by all (to whom it appertaineth) by touching the holy Gospels, and upon them; in all cases by law expressed, and which are usual in both courts. Seeing then it is most apparent, that the oaths (which we here dispute of) are both expressed and prescribed by laws Civil and Ecclesiastical; and were also there used, both at the very time of such Constitution, and long afore: it will hereupon follow, that the like oaths were then also used in temporal Courts, and were (by that Constitution) aswell allowed unto Ecclesiastical courts, as they were in their own temporal 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. even against sundry such Constitutions, both Legatine and Provincial; yet saith thus of this very point, viz. 2 A Treatise concerning Constit. Provincial and Legatine. ca 23. printed by Tho. Godfrey. though such a man's saying viz against usual oaths, in both courts be untrue; yet it is none heresy. He yieldeth then, that, in all cases then accustomed in both courts; oaths might lawfully, and also aught to be taken. The practice of this oath (as in all former times) so was it also received and used, in the time of king Henry the eight, as well after the Papacy was overthrown here, as afore: and so hath it continued ever since. And after his time, the 3 Acts and Mon. 2. edit. 2. tom. fol. 1495. Lords of the Counsel, finding Bonner them B. of London, something slack in his duty; did enjoin him to call afore him all refusers to come to divine service, & to search out, convent, & punish all adulterers, according to the ecclesiastical laws. The 1 Ibid. fol. 1501. king's commissioners visiting the Church of Paul's did examine all them of that church by virtue of their oath; touching their doctrine and conversation of life. Whereupon one john Painter and others, did confess adultery even by themselves to have been committed. yet this was a general enquiry. The King's 2 Ibid. fol. 1511. commission to proceed against Bonner, affirmeth; that the commissioner, shall proceed, aswell by mere office: as also by way of denunciation, & by either of them, or by any other means, by their discretions. By virtue 3 Ibid. fol. 1512. whereof, they charged him with a corporal oath, ex officio, in form of law, to answer the positions, that should be ministered: which upon his oath taken, were after ministered unto him. But 4 Ibid. fol. 1516. for that he would not answer them fully, he was pronounced contumax & pro confesso, & was remaunded back to prison as afore. The 5 Ibid. fol. 1536. proceed about that time also, against Ste. Gardiner, & the oath ministered to him, was ex officio, in matters criminal & penal: as appeareth by the sentence of deprivation from his Bishopric of Winchester. And yet besides Bishops, there were some of the King's counsel, some Civilians, and also some judges of the land, and other common lawyers, who were then commissioners in that cause: and knew the laws as sufficiently well; as any doth, which now impugneth this course. In her 6 Circa 3. aut 4. regni domninae Elizabethae reginae. majesties time that now is, a special commission was directed forth by her highness unto certain great persons both ecclesiastical, & lay; whereof divers were of the privy counsel, to proceed, by way of inquiry ex officio, against 2. great & honourable personages, in a cause of correction for incontinency, for so the commission did run. Whereupon they were accordingly called, and proceeded with; and were put to answer the criminal articles, upon their corporal oaths. Not only at all general visitations holden in the beginning of her majesties reign, by special commissions grounded upon the stat. 1. El. c. 1. but also ever since, by virtue of the commissions ecclesiastical, this course of exacting such oaths, hath been practised and continued. was it then so long together, against papists and other delinquenis, a most just, & necessary oath, & such as against which, no good subject (bearing the name of a professor of the gospel) ever did open his mouth in any dislike: and is it now become on a sudden, a bloody, cruel, unjust, & more than Spanish Inquisition; because a few vain, & factious Reformatists, are urged with the self same manner of oath? Belike laws themselves are but partial, which in respect of acception of some men's persons, do so quickly turn their nature, from sweet to sour, and from just to unjust? When D. Grindal late Archb. of Canterb. was B. of London; he complained to the Lords & others of her Ma. most honourable privy counsel; for that by virtue of the commission ecclesiastical, he could not so duly & thoroughly proceed, to the discovery & punishment of certain knights, & other great possessioners being Recusants (as he ought) because some Civilians & common lawyers (supposed them by him to be like affected) did sinisterly animate and advise them not to take oath, to answer unto any articles objected ex officio; unless some fame by presentment, or such like, were first found against them, which would prove (said the B.) a long, troublesome, and chargeable course, if it should be pursued; seeing some of them dwelled in remote places of the Realm, where as the people also stood like affected; so that they would never be induced, to make any such presentment or discovery. and yet that the matter was by denunciations, by vehement presumptions, and by good evidence given unto the commissioners; sufficiently otherwise detected; or was so notorious, as that (by law) they might ground an inquiry of office, against them; as by others, no less sound Lawyers, he was informed. For redress whereof, and for furtherance of justice, it pleased their honourable LL. to call some both of the Civilians, & common lawyers afore them; to the Counsel board, that had given such advise. & thereupon, three of the doctors, and one counsellor at law, were by them committed to the Fleet. which (I think) some of their honourable LL. & others yet remaining, can & do well remember. By all which here premised it doth appear, how sufficiently & manifoldly our intention (in this behalf) is grounded: & likewise to how small purpose the Treatisor reasoneth, where he gathereth; that ecclesiast. courts must be restrained by the Q. prerogative royal, & common laws, in that their jurisdiction is from the Crown. Considering, none of the defenders of this oath will deny, either the antecedent, or consequence hereof. But that which covertly he would thence infer, viz. that therefore they may not give oaths, but as the common law doth; will not any way follow thereupon: because the Q. prerogative royal, and common laws, are so far from restraining or forbidding these oaths; that (as it hath been proved) they allow them. and the Temporal Courts (in many like cases) use not so much as a different course from this; which is in special controversy. 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 Majesty, warranteth, and alloweth this manner of oath: then to show this to be (as he conceiveth it) absurd; he telleth us of some other points also defended (upon the general words of that Act, and of the Commission) by the said learned men; which seem unto him to be also no less absurdities, then is the ministering an oath in a cause criminal; & therefore the one no better warranted thereby, than the other, for to what other purpose then this, he should bring them, I cannot possibly conjecture. The first fault he findeth with such learned men's sayings, is: for that they judge it to be warranted by the Act, and by the Commission to put men to oaths; none accusation, suit, or lawful information, presentment, or indictment, judicially preceding, or depending. He may father upon such learned men what he please: but is it likely that he himself would thus object; as if he required bills of Information & Inditements (as it is at the common law) to be used also in courts ecclesiastical, seeing both himself, and the Notegatherer do tie the Commission to causes only ecclesiastical, and they also to be dealt in, only ecclesiastically? Such learned men's sayings, may well & truly be defended: as namely, when either the offence is notorious, or is known to the judges themselves, to be dangerous & scandalous to be suffered. For these two cases be out of all those that he nameth: yea though he should (most universally) take suit for any prosecution by another, and information for any private credible suggestion, or denunciation made. The second error 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 laws, and well governed common wealths, have such hidden backbiters, for apparent accusers. But if all good Laws and well governed commonweals do (indeed) hold such men for apparent accusers; then doth it follow; that, when such Information is given, there is no want of an apparent accusation. Yet in very deed, every relation made to a Magistrate by such, as will not prosecute, nor (perhaps) be seen in the cause, for some good consideration; is not by any law, nor in any common weal that I know of; holden for an accusation, for a malicious calumniation, or for any secret backbiting, nor yet deservedly (by any necessity) is so to be accounted. For besides other countries which I have read of; such private informations have (oftentimes) their manifold good use, even in this Realm, yea and amongst each degree of Magistrates. And if they should be 1 Vide 2. part, pag. 85. wholly rejected, or neglected; might (sometime) bring an whole subversion unto us all. I pray, were those that gave the first information of Babingtons' damnable conspiracy, to be misliked, as secret backbiters? or was the examination of these traitors, and the proceed unjust; because the names of the intelligence-givers', were to this day suppressed? By this example than you may weigh, & consider, of sundry the like. Howbeit such informations in ordinary courts Ecclesiastical, be not holden for sufficient ground of Special Enquirie; except they be very frequent, and the offence scandalous: and in Commission courts, they be as rarely received, as in any courts Temporal of this Realm whatsoever, and then but from very great, and credible persons. The third fault he findeth with such learnedmens' opinions, is; that, the judge may profess himself to be an Accuser: which lawless proceeding, the justice of this land (he saith) detesteth: for that no man may be accuser, and witness: or Inditour, and a jurour: therefore much less may the judge be an Accuser. For answer whereof, first the laws civil and ecclesiastical, hold not the judge proceeding of office to be any accuser: but that whereupon the inquiry is grounded, to represent the accusation, and so there is no need for them to plead such plea, as he here surmiseth. Secondly, that, an accuser may (in some case and sort) be a witness, etc. is 2 Vide 2. part. pag. 110. & 111. elsewhere declared: and so his antecedent false. Thirdly, his reason followeth not: for why might not a judge be an accuser: albeit neither an accuser could be a witness, nor the Inditour a jurour? Fourthly, if it were true, that the justice of this land, and the common law did not use something, which an Ecclesiastical court doth: may it thereupon be inferred, that therein is a contrariety, and thereby (for such difference only) a detestation of the other course? This manner of reasoning is more common with him & others, in these causes; then any way sound & substantial. For the one court doth it, & the other doth 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 do import no more, but a diversity. For is this (which is the very like) any good reason, viz. an Ecclesiastical court readeth dissinitive sentences de scripto, but a Temporal court doth it not, in giving judgement, therefore there is contrariety betwixt these courts? & so the reading de scripto, in a court ecclesiastical utterly unlawful? Whereof I thought it not amiss, once for all to advertise the Reader, because this erroneous argument is so usual. Lastly, if all these were to be granted unto the Treatisour, even as he setteth them down; yet what would it avail his cause? For admit these collections were absurdly gathered, from the generality of the words of the Act & Commission; would it therefore follow, that authority, to minister oaths to defendants in causes criminal, could not thence be argued without absurdities, being wholly another point? why? if every thing cannot well be inferred thereon, may therefore nothing at all be? Yet upon these & such like speeches, rather than reasons of his, (elsewhere by sundry occasions touched) the Treatisour wisheth; the said learned men wiselier to advise these Commissioners ecclesiastical, to respect the ends expressed in the statute, viz. the pleasure of God, increase of virtue, conservation of peace and unity of this Realm: rather than the ample and large words of the statute, and height of their jurisdiction, as if these ends, could not possibly concur, with tender of such oaths. But whensoever, he, or any other learned or unlearned, have sufficiently (indeed) proved, that these cannot stand together; I doubt not, but that the Commissioners, will take it, as a great benefit, to have been instructed by them in a point touching the pleasure of God, increase of virtue, & conservation of unity; which by most of their large travels in Divinity, by themselves they have not hitherto found. Howbeit, this last part of his saying seemeth unto me to sound; as if he would not stick any more, to grant unto us, that the large words of the Act do allow of this oath. So that we find nothing any way material by him alleged, to impeach our former conclusion, viz. that the common laws, and statutes of this Realm, allow such oaths to be tendered by Ecclesiastical judges. & therefore the oath of the party in some matter of crime, that may be damageable & penal unto him; is both in practice, & is allowed also to be practised (in courts ecclesiastical) by the laws of this realm. CHAP. IX. That such oath touching a man's own crime is allowed, both by the Canon and Civil laws: how far, and in what sort: and that the like is established, and thought equal, by the laws & customs of sundry other nations, aswell ancient, as modern. seeing then the giving of an oath in a cause criminal, & penal to a man's own self; is practised by the laws of the Realm, and allowed by them, unto courts Ecclesiastical: in both which respects, such Canons, as prescribe it, are by statute warranted to be still used, as they were before the making of the Act. 25. H. 8. and in truth have been always since: let us therefore see, whether this course be justifiable also by Canon and Civil laws, and by them allowed and practised. First, the laws of the realm, that do allow certain matters to be of ecclesiastical conusance, cannot be intended, but to allow an ecclesiastical form of proceeding, by such laws received. For it were as unreasonable to bar them from proceeding in a cause ecclesiastical, according to that law: as it would be to require of them to deal, by way of Inditements and juries. Those laws are so plentisull in this point, that it were vain to set down but a tenth part of that, which in this behalf, might be said. Therefore I hold it best to show unto you, what is the law herein (agreeable also to the practice in ordinary courts ecclesiastical) as I conceive it; in as great briefness, as I can. which may bo●…h declare, that by those laws it is allowed, how far, and why it is lawful: & may also serve to answer (by true distinction) unto all objections, drawn out of either of those laws, against this course. An oath touching a criminal position, or matter, is either taken by a witness, or by a party. A witness (by the very nature of testimony) must depose indifferently, aswell for the party against whom he is produced, as for him, which produceth him. And therefore is to answer truly, not only to the positions and articles, given in by him, by whom he is produced: but also, unto the lawful and pertinent Interrogatories, ministered even by the adverse part. In which Interrogatories, two several sorts of matters may be contained; tending to disable him, from giving testimony. The first is an Interrogatory tending to the discovery of his own turpitude: and unto 1 Felinus in ca cum causam. de testibus. nu. 10. per communem opinionem. this, whether it concern any crime supposed to be committed by the witness, or his confession thereof; or the fame and infamy 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 upon his oath, though he have done penance for it, and thereby be presumed, to be reform. The reason hereof, is truly alleged to be this; 2 Io. Andr. in ca 2. de confessis. nu. 6. per c. ex tu. arum. de purgat. Canon. etc. because; the end of such a criminous Interrogatory, ministered by way of exception or bar to a witness, or to an accuser; is only to disable him, from accusing, or witnessing, & not to the acquittal or condemnation of the person so challenged of the crime; as the end is, where a Purgation of a man's own self, is to be enjoined: & therefore, no reason to ask it of himself. For (as one well saith) by the 3 Alph. Villag. in Pract. Can. li. 3. c. 13. conclus. 3. order of charity, each man is bound, to love his own body, and fame, one degree sooner and nearer, than his neighbours: insomuch, as the love towards ourselves, is made the rule, how to love our neighbours; in which respect it is said, that, ordinaria charitas incipit a seipsa. and therefore no man is bound to furnish one that standeth & opposeth himself against him; even against himself, in matter of crimes. but (saith he) it is otherwise, when a man is urged to the like, by a Magistrate, that is his competent judge. Whereby the reason of the 4 Vide 2. Part. pag. 36. privilege of an oath ministered ex officio; above that, which is at the instance of a party, appeareth. The second sort of Interrogatories; tending to the disabling of a witness, is such, as contain no turpitude in themselves. as 5 Felin. ibid. per Baldum. Interrogatories, touching his condition, as whether he be bond or free, or of his poverty, kindred, or alliance, and such like, and to these, he is bound to answer. When a criminal matter is objected, as to be answered by him that is party unto the suit: it either toucheth the crime of some witness by him produced, or else the party his own crime: if 1 Specul. de teste. § iam. de interrogat. it toucheth a crime of his own witness; he must answer it by the virtue of that part of juramentum calumniae, by him taken; which is, that he shall not burden (more than needs) his adversary, in making his proofs; but shall himself confess a truth therein, when he is asked. But when it toucheth the parties own crime, it is of two divers considerations: for either, the cause is Civilly moved for the private interest of the prosecutor: or else criminally, for public punishment. If the suit be but civilly moved, the criminous position or interrogatory, may concern such a crime; as being concealed, brings benefit, & commodity to him, with another man's loss. And in 2 Bartol. in l. Manellus. §. qui rerum. nu. 30. ff. rerum amotarum. this case (albeit there be no fame, or no detection precedent) the party is bound to answer it upon his oath. But if the concealing of it, cannot procure his gain, with another man's loss; 3 L. qui iurasse. §. qui pater. ff. de iureiur. & ibi glow. l. si a te. ff. de excep. rei. iudic. then is not the party himself (in such case) bound to answer a position criminous so moved by his oath. yet even in this 4 Bartol. ubi supra remissive. case, if such crime be notorious, or be otherwise sufficiently discovered by fame etc. then is he bound to answer it, upon his oath. Now if it be moved criminally, to the intent of public punishment; it is either touching a crime altogether hidden, or a crime which (in some sort) is bruited abroad and manifested. if it be simply hidden, and secret, the 5 L qui iurassè. §. si pater. d. c. inquisitionis ex. de accusat. c. dudum. el. 2. de electione gl. & Innoc. ibi Specultit de Positionibus. §. 7. nu. 40. & est communis regula secundum Decium. L. sin. C. de edendo. c. qualiter. el. 〈◊〉. de accusat. c. si peccaverit. 2. q. 1. rule is; that a man is not bound to answer such crime, upon his oath: quia nemo tenetur, propriam turpitudinem revelare. And it is 6 De poenitentis. dist. 1. c. quis aliquando. ibi. non tibi dico. alleged out of chrysostom in the Decrees: Non tibi dico ut te prodas in publicum, etc. One reason hereof is; 7 Arg. 6. q. 1. c. si omnia. because mecre secret sins need not be published, but are to be left unto God alone: De occultis Ecclesia non judicat. And another Canon to like effect, 8 Vrbanus 〈◊〉. c. erubescant. dist. 32. sayeth thus: We speak of sins manifested: but as for mere secrets, God (alone) is he, that knoweth them, and will judge them: where, by secret sins, he understandeth such; as are by none inkling and probability brought unto light, and therefore cannot possibly be denounced in any particularity, unto the judge. Therefore in general Inquiries (as at visitations) the law prescribeth this form of oath to be taken by them, who are to 1 e. qualiter. el. 1. de accusat. denounce and present, viz. touching such matters as they know, or believe, & have in charge (excepting always crimes merely hidden) they shall say the full truth, and nothing but the truth. In which respect, it is said, that if 2 Salicet. in l. ea quidem. 17. q. C. de accusat. an Officer of a Town (as such, which be called in Italy Decani villarum) by prescript of some statute, be to denounce all misdemeanours committed in that town, upon a grievous punishment otherwise to be inflicted upon him: yet is he not thereby bound, to present any secret offence committed by himself. Nevertheless, I have heard it in the form of the oath (given to grand juries at Assizes and Sessions) contained; that they should inquire of their own, their fellows, and other men's misdemeanours, which they should have in charge. A great learned 3 Aquin. in quodlib. 6. q. 8. art. 12. in corpore quaest. vide plura 2. part. ca 6. pag. 42. schoolman (by distinction) doth thus determine of this point: If the Adultery be altogether secret, a man is not bound judicially to confess his sin: neither in this case, ought an oath of telling the truth, to be exacted of him: because hidden faults are reserved to Gods own judgement, according to the 1. Cor. 4. Chap. But when an evil fame runneth of adultery committed, or when there appear some evident tokens, which may induce great suspicion thereof: or else when it is proved Semiplene, that is, by one good witness, without exception: then ought an oath (to declare the truth) to be imposed upon him, and he is then bound to confess the very truth. Another reason thereof is; that a 4 L. 8. §. 1. & §. illud. quaeritur. ff. de interrog. judge may not interrogate judicially: but where he is led thereunto by good equity. But there is none equity to inquire, of faults that are absolutely secret and hidden. And yet there be also certain cases, which are excepted out of this rule: The first 5 d. c. inquisition is Barthol. in d. l. Marcellus. Abb. in c. cum super de confessis. Specula. tit. de positionibus. §. 7. nu. 40. is, when the hidden crime is such, as doth (by law) hinder the execution of function Ecclesiastical, or the retaining of a benfice, as Simony, Irregularity, or such like. An example 6 Conc. Cartha. 4. relatum a Gratiano di. 50. c. ex poenitentibus. hereof, we have also in the old Canons of Counsels; where it was thus decreed: Though he be otherwise a very good man, yet let not such be ordained a Clerk, which is a solemn penitent, viz. such, as (for some crime) hath been put to such grievous and public penance, as was very usual in those straighter times. But if such happen to be ordained, through the Bishops want of knowledge of his state; let him be deposed from the Clergy; because at the time of his ordination, non se prodidit esse poenitentem, he himself bewrayed not so much. Then much more ought he to open it, upon his oath. The reason, that in all 1 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 Ecclesiastical function, the party himself is to answer, though it be otherwise secret; or that he have done penance for it) is this: because, (thereby) his own good and safety of conscience, is procured: lest he should (else) wrongfully live upon, and spend that, which (by law and right) belongs in deed and right to another, and not unto him. And this holdeth 2 Bartol. in d. L. Marcellus. nu. 3 generally, whether the matter be civilly, or criminally moved; in case by concealing, the party, that is to answer, shall win and gain, with another's loss: saving, when by such answer of the party; some matter that was fully afore decided, is called (afresh) into question: for than is he not compellable to answer it again. The second 3 Specul. ibidem. c. qualiter 2. extra. de accusat. 22. q. 1. c. si quis per capillum. exception of the aforesaid rule, touching not urging to reveal secret faults; is: when as by concealing of the offence, great peril doth grow, to the Church, as in heresy, and dilapidating or spoil and waste, of an Ecclesiastical living. If here it be asked, whether a party be compellable to answer an Interrogatory, or position touching his own being excommunicated, or not? it is to be remembered, there be (in law) two kinds of excommunication: One is, 4 Specul. ibidem. nu. 42. & 43. excommunicatio Canonis, when as the law inflicteth that censure ipso facto: as (by statute) for fight with drawn weapon in the Church, or Churchyard. Now because this censure so by law inflicted, is always presumed to be just, & to bind: therefore, we are not bound (by oath) to answer unto a position, or interrogatory, diducing our own being excommunicated; no more than we are, touching our secret faults. The second, is excommunicatio hominis, when as the censure is but decreed by the judge. which because it may be unjust, and without good cause, (in which case it is called Clavis errans) or void and erroneous (as being decreed, after an appellation is made &c.) therefore it doth not (necessarily) bind, and consequently ought therefore to be answered by the parties own oath. Hitherto of offences merely secret. But when they are by signs or otherwise (in some lawful sort) manifested abroad, they are then of a far different consideration. And yet if they be but blown abroad, by reason of an Accusation commenced, or by one, who voluntarily maketh himself a party, and so is presumed to do it of malice, or for some other sinister respect: in this case, the defendant is not to be urged, upon his oath to answer the truth of the crime; nor yet any thing, which very nearly & presumptively inferreth it. for no man is bound (simply) to furnish up his adversaries intention, who (at his own pe●…ill) ought to come (otherwise) sufficiently prepared. Nevertheless, if the Accuser, or party, do make an half proof, as by one upright, and untouched witness, or by any thing equivalent thereunto in law: then may the judge tender to the defendant an oath (which he cannotrefuse) de veritate ipsius criminis, in way of his purgation, or more clear conviction: by reason of the interest, which the common weal, or Church hath, to have sin punished, and all scandal thereupon arising, removed. To this effect, a 1 Alph. Villag. lib. Pract. Can. 1. cap. 5. conclu. 1. Canonist writeth thus: Seeing God alone doth know, & is judge of thoughts merely secret: and that each man is bound to preserve his own good name, according to that of S. Augustine's, viz. that man is cruel, who is careless of his good name: it doth thereupon follow, that if nothing at all be proved by the accuser; that then a man is not bound to confess anything against himself. And 2 Diaz. cap. 140. another to like purpose, viz. albeit when the judge proceedeth of office, and the crime is not fully proved, he may enjoin purgation unto the defendant: yet is he not bound to do it at the petition of him, who voluntarily offered himself to be promoter officij: but it is otherwise, when a necessary promoter, who is assigned by the judge, doth make such petition. But when the proceeding is to be of mere office, & where the crime is manifested, and discovered abroad, by some ways and means (sufficient to ground an Enquirie upon) yet those means not proved before an Ordinary judge; the judge is not thereupon to urge the party's oath, upon the very crime itself: albeit 3 Spec. ibld. c. qualiter 1. §. finali. c. qualiter 2. V nos igitur. de accusationib. he may require him to swear, whether he believe such an infamy do run of him; or whether he have been adjudged by sentence to be convicted of it: whether he have at any time confessed it, or whether he believe it, to be notorious. If he shall deny to take oath to answer but unto these, upon his credulity: he doth thereby incur contumacy, and may be proceeded against, as convicted of so much, as he wilfully refuseth to answer. One reason hereof is this: because he offendeth; to charge the office with proof of a matter of this nature, being of itself no crime, and whereof he knoweth the very truth. Another reason is, for that he is not hereby accounted to bewray himself of any hidden fault; because these points import no crimes of themselves, and (by common intendment) may be otherwise sufficiently known. Now if the 1 Specul. ibidem nu. 41. & 42. party defendant shall deny upon his oath, all these aforesaid matters, whereof he is interrogated; & none other sufficient detection beside, being against him, then cannot the Ordinary judge proceed; to give him an oath touching the truth of the very crime itself objected: until he shall have made proof by witnesses, that the party is (in deed) thereof infamed, hath elsewhere confessed it, is convicted thereof, or some such like. For when all of these, or any of them, is either proved, or by the party himself confessed judicially: then may the judge lawfully give unto the party defendant, an oath; touching the truth of the very crime itself: to the 2 Io. Andr. in c. dudum. el. 2. de electione. intent (if the matter fall out true) by due tokens of penitency to be enjoined him; he may be reform, the scandal, and offence removed, and others terrified from the like. The equity hereof is manifest: for 3 c. omnibus etc. Presbyter. 2. q. 5. de purgat. canon. per totum. upon such infamy, etc. running upon him, and so proved, or confessed, he may be put to his oath, with his Compurgators; which is 4 Arg. c. ex part. 3. de decimis etc. per venerabilem. qui filii sunt legitimi. much more and harder for him to do, then to deliver the truth, upon his own only confession. Nevertheless you are not to understand, that this compulsion here spoken of, to take such oaths; is an absolute, simple, or precise compulsion, but only causative, as Interpreters do call it: 5 Arg. l. deaetate. ff. de interrog. §. qui tacuit. c. fin. §. poena. de iura. calumniae. that is to say, if he refuse to answer, or to purge and clear himself being infamed, etc. and thereby scandalous, for some fault; he is but therefore to be declared for convicted, to be suspended, or otherwise to be proceeded against, as the quality of the cause and law requireth: and none other corporal violence to wring out his assent unto such oath, is to be used. Yet to prove further, that by these laws, an oath is appointed and may be ministered in some cases touching a cause criminal: I will (for avoiding of tediousness) set down only the 1 l. 13. § idem julianus. ff. de jureiur. 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. justinia. A. l. ubi. 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. novo iure. C. de poena jud. qui malè iudicavit. Auth ut litigatores iurent. §. si vero. l. cum apud veteres. §. sin autem, in fine. C. de bonis author. iud. possidendis. l. penult. C. de probationibus. l. in bonae fidei. C. derebus creditis, & jure iurando; & ibi Apostilla. Nou. 8. const. 7. & ibid. glossae & DD. Vide Decianun. 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. etc. si quis de gradu. 4. etc. sequ. ex. de purga. Canonica. etc. 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. jul. Clar. q. 45. v. sed quaeso. places of law by quotations: and first out of the Civil (before the Emperors were Christians,) and then after they were Christians, as they be reported in Cod●…ce justiniani; and then out of the Canon law, taken especially out of the ancient Fathers and Counsels. that by perusal thereof (as your leisure may serve) you may discern, unto what member and part of the former distinction, each of them may severally be reduced. This point might be further enlarged, both by authorities of law, & by argument. If he that hath 2 l. Marcel. §. 1. & fin. cum ll. seq. ff. rerum amotarum. action for embezelling his goods (which is but a private, yet a criminal action at the Civil law) will put it to the defendants oath to swear; that he hath not embezzled them, the defendant then must either take it, or else be convicted thereof: Neither may he return the oath back upon the plaintiff: the like is observed in an action of theft: which is no public criminal action, at the Civil law. And the defendant may not answer 3 Bartol. ibid. & in l. inter omnes. ff. de furtis. & in l. de aetate. §. nihil. ff. de Interrog. act. unto these Interrogatories criminal by the word credit vel non credit, as he may do in Civil actions: but is to answer them directly, yea, or no. Though it be but at the suit of a 4 l. de aetate. 12. §. qui. tacuit. ff. de Interr. c. si post. 2. de confessis in 6. private person; if he that is judicially interrogated, will not answer at all, or doth answer obscurely and perversely; he shall be holden pro confesso, and be condemned; no less, then if he had confessed it, because he therein contemneth the laws, and the Magistrate. Likewise, at a private persons suit and petition, the oath of 5 c fin. & ibi DD. de iuram. calumniae. juramentum calumniae, de veritate dicenda, & purgationis, is given by the judge, and 6 Abb. in. c. veritatis. nu. 27. de dolo & contu. must necessarily, be taken by the party, albeit the matter be criminal; or else he shall be taken, as convicted thereof. And when the Accuser in a criminal cause, hath proved nothing 7 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 judge if he will may minister of Office unto the party convented, an oath, touching the truth of the crime, called juramentum purgationis, according to a former distinction. And this kind of necessary oath, and the former, have place in 1 Clarus. li. 5. §. fin 63. q. per Anaman. & alios. all temporal or Civil courts abroad in the world, as well as in courts Ecclesiastical. Then, if where but a common person sueth, either, for his own private interest, or for revenge, the judge (by the Civil law) may exact such necessary oaths of the other party, importing oftentimes discovery of matter criminal, and penal to the defendant: how much more than may the judge, and ought he to do it (after good presumptions, and probabilities had) where there is a public interest grown unto the Church or Common weal, to have the very truth known, for reformation of the party and suppressing of the sin or offence? By all which premised, we may see the equity, necessity, and true use of such oaths, by those two laws Canon and Civil. Besides those laws, it is also received and used by the Municipal and Customary laws, of many nations of Christendom. By the law 2 c. Sacramentum. §. & cum datur. de consuetudine rectifeudi. Feudall, or (as we here speak) of Tenors; such oath, hath use in crimes. For if the objected crime be denied by the party, and cannot sufficiently be proved; he must then have twelve compurgators to swear of their consciences, and credulities for his clearing, after himself have taken the oath, De veritate vel falsitate criminis. By the 3 Ord. Camerae Imper. tit. de Purgatione. ordinances and custo●…s of the Imperial chamber (serving for all the Empire) the like oath is used; saving, that a Nobleman is permitted to take it by his Procurator, authorized by him, to swear in animamsuam. By the 4 Consuet. Hungariae de juram. Purgat. customs of Hungary, there be many, and long constitutions made, for the taking of it, and of the manner, of this kind of oath. It is testified 5 Marian. in c. qualiter. q. 84. Casonus in Pract. fol. 84. nu. 3. also to be the usual practice of all the several dominions of Italy, that the party convented in Temporal courts, whether by way of Accusation, or at the prosecution of another, or by way of Enquirie ex officio judicis: must swear to declare the truth, in all those things, that shall be asked of him, even of the crime itself. Which proceeding, is far more grievous and strict, then is or may be used, in any ecclesiastical courts, or any other in England. For at the suit of a party, a man is not in any ecclesiastical court (here) to be sworn De veritate ipsius criminis, except there be cause for the judge ex officio, to enjoin him his purgation. And an other point of greater rigour there is; that they give such an oath, not only, where some corporal punishment is to be inflicted, as in the starchamber is used: but, where it is capital to the party, or tendeth to the mutilation of limbs: a course not allowed by the laws and policy of this land. For 1 Ordonnances du France. liu. 2. tom. 2. tilt. 14 du droict, de refue haut passage, etc. pag. 1195. merchandise to be carried out of the Realm of France, the Merchant must make a declaration under his own hand, of the particulars thereof, and the weight, or measure, in what ship, and whither he will carry it, and that there is no more, then is there set down; and that there be no deceitful nor forbidden merchandise there: and for the truth of such note, or declaration; he must take an oath, upon the holy Evangelists. They have also another ordinance in France to like purpose of swearing; reaching to all Plaintiffs declarations, etc. and to all ●…fendants answers, etc. without any distinction, whether the same tend to discover any crime of either of them, or no. For 2 Ordonnance du France premier, an. 1539. art. 38. the parties are bound by oath to affirm, touching the facts contained in their bills and additions: and by their answer upon oath unto Interrogatories, to confess those; which be within their knowledge. In other matters criminal, it is reported to be the 3 Marcus. decision, 674. custom of France, for the party defendant, only to make faith, when they are objected. and he is thereupon to answer; whether he have committed them, or not: but he is not to take a corporal oath. betwixt which two (before God) there is no difference. But by the 4 Grand Coustu●…er entre les customs, de Normandy. customs of Normandy, I find; that the appealed of murder, or such like, (when it is to be tried by battle) must upon his oath (holding his adversary by the hand) solemnly swear, whether he hath committed such fact or no; in the very self same words, and manner, as Stanford (afore alleged) affirmeth to be the law of England, in like case of Appeal. Generally, that to give 5 B●…tol. in l. inter omnes. §. re●…. fl. de furtis. an oath to the party convented in a cause criminal, to tell the truth; is the present usual practice of most nations abroad: and 1 August. ad Angel. de maleficijs: in ver. comparuerunt. Bertrand. consil. 321. nu. 3. li. 3. in prima part. Marsil. in l. quaestio. habendae. 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 laws is; that it may be so given, even by the law Civil (which is their common law) doth appear by the places of Authors here quoted, in the margin. Amongst nations of far elder times (in most flourishing common weals) we find oaths in all causes, whether Civilly or criminally moved; to have been taken, both by the plaintiffs, and also by the defendants. Amongst the 2 Ex Polluce Sigonius. li 4. ca 4. de republica Atheniensi. Suidas in verbo. Athenians, both parties took oaths; and besides that, did lay down a certain sum of money, to be forfeited by him that should be overthrown. The Plaintiffs, or Accusers oath was; that he would object nothing but true crimes and matters. This was called: 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉: and the defendant swore, that he would deal, and answer plainly, not fraudulently, and cautelously, and this was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. When Aeschines accused Timarchus of a fowl crime, supposed to be done upon him by one 3 Aeschines contra Timarchum. pag. 7. Graece. Misgolas, he saith thus: that if Misgolas being called, and urged to bear witness, shall deny it, to the intent to gratify Timarchus: he shall thereby do him no good, because Aeschines can prove it by witnesses: but shall only for swear himself, and withal show how cunningly he can cover such villainies. Whereby appeareth, that (in that common wealth) oaths might be given in matters criminal, tending to the opening of their own turpitude, as well as of other men's. Radamanthus' for his severe, and strict course of justice holden; was feigned by Poets (like as Aeacus and Minos also were) to be a judge in another world, over ghosts deceased. Of him 4 Plato lib. 12. de legibus. Plato thus writeth to our purpose: I am persuaded (saith he) that Radamanthus deserved to be had in great admiration. for he perceived, how in those days, all men confessed, that there were gods, which had regard over human actions. therefore he thought best, to commit deciding of matters in judgement, unto gods, and not unto men. So that by a very plain and easy course, he ended all matters of judgement; for he exacting an oath in every cause in controversy, used thereby, no less speedily, then safely, to give his judgements. 5 Libr. 3. Polit. c. 10. Aristotle also Plato his scholar testifieth the like; that in old times, supposed offenders that were called into question, were some of them proceeded with upon their oaths, & other without. and their oath was performed by holding up of a sceptre. The history of Glaucus 1 Herodotus in Etato. lib. 6. an ancient Spartan, doth give plain evidence; that amongst that most just people of Greece, a man that would deny a thing to have been left with him in deposito, that is, in trust to keep; was to take his oath, whether it was so left with him, or not; and consequently was to swear of matter tending either to perjury, or to his dishonesty, and shame, having once unjustly denied it afore, to the defeating of his right, who had trusted him. For the said Glaucus his whole house and posterity was rooted out by God's vengeance; only for that a while he denied it, and had once in purpose, to have forsworn the money, which was (in deed) left with him, upon trust: and thereupon consulted with the Oracle at Delphos, whether he had best forswear himself, or deliver the money. The use of an oath in matters criminal, amongst the people of Greece, may be proved to be most ancient, by that purgation, which king Agamemnon made to clear himself, that he had not lived incontinently with Hippodamia. this his purgation is recorded to have been made in this form: 2 Dicty●…. Cretensis. lib. 2. belli Troiani. He commanded two Sergeants to bring the host or sacrifice: which being by two lifted up from the earth; Agamemnon drew out his sword, and therewith divided it into two parts, and caused it in the presence of all, to be laid down; then holding in his hand the bloody sword, he went betwixt the two parts of the sacrifice, and when he was passed through, he then swore, that he had never polluted Hippodamia, by incontinency. Homer 3 Homer. lib. 19 Iliad. v. 257. mentioneth, that the same king, in another form cleared himself, that he had not violated Briseis. For at that purgation, a Boar was offered up by Talthibius; then Agamemnon cut off some of the Boars bristles, and offered them to jupiter: swearing withal, that he had not violated Briseis, and the Boar was after, tumbled into the sea. For clearing men from suspicion of all lewd and sinister dealing, not only those which came to strive 4 Pausanias' in Eliacis. at the solemn exercises and games of Olympus, but their parents also, and brethren, were sworn over the entrails of a sacrificed hog; that they had used no fraud, or deceit whatsoever: nor done otherwise, than the ordinnances for Olympus, did permit. So much then for the use thereof among the old Grecians. In the old Roman common 1 Cato de re rust. ca 144. & 145. wealth, we read, that, even private householders did lawfully impose such an oath upon their labourers, that gathered Olives: videlicet, that, neither themselves nor yet any other by their covin, or fraud, had stolen, or embezzled away either oil, or olives: which oath if they refused, they neither had any wages, nor any oil or olives. For as it is by 2 c. fin. §. 1. de iuram. calum. etc. inter solicitudines. d. law, that when probable tokens or presumptions, etc. do appear; he that refuseth to take oath (though the cause be criminal) is reputed convicted thereof: So was it holden among the old Romans for an assured note of guiltiness, to refuse to take such oath. as may be noted by the history of Victorinus, when he was lord General of Germany. for 3 Xiphilinus in Commodo. having his Legate or Lieutenant in some suspicion for corruption, he did (privately) seek to persuade with him, to take an oath; that he would not suffer himself to be bribed. which when he could not obtain of him, the General himself came into the Tribunal seat; and there did swear, that he neither had, nor ever would accept of any bribes. than he commanded his Legate to take and bind himself with the like oath; which because he refused, the General commanded, that he should give over his office and place. And that it might be better discerned, whether any man upon guiltiness of his own conscience, would at taking his oath, blanche, & alter the very words of the oath: they sometimes devied to have a solemn oath, whereby he that gave the oath, did utter certain set, and conceived words, as he thought fittest; which he that swore was precisely to follow, or else it served not his turn, as afore hath been noted. This they called Conceptis verbis jurare, and the Grecians termed it, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, a solemn imposed oath. An example hereof in a very fowl cause, we read in 4 Tacit. lib. 〈◊〉. Annalium. Cornelius Tacitus. The Senate couceived a form of oath, and the chief of them first beginning to take it, provoked by their example all the rest of the Magistrates as they were asked their voices, to call God to witness; that by their means, nothing had been done, whereby the safety of any citizen might be hurt; nor that they had gotten either reward or honour, through the calamity of any other Citizens. but it was perceived, that such as had a guilty conscience herein, did come but tremblinglie to it, and changed the set conceived words of the oath, like as those are wont to do, who swear falsely or cautelouslte. When the Praetor one of the 1 Lex Seruilia Glauciae, apud Sigonium. li. 2. ca 6, de judicijs. chief Magistrates of Rome, had made choice of 450. Judges, for deciding of causes; he was (by law, for his own clearing) to swear; that he had not wittingly chosen any of them dolo malo, viz. by fraud, mal-engine, or for any other sinister respect. By all which the premises out of the Canon, Civil, and the laws, and customs, of other nations, may appear; how lawful and equal a course it was by them also holden (upon sundry occasions) to urge oaths; though some matter criminal in the party himself, might thereby be disclosed. CHAP. X. An answer to some objections, pretended to be made against this kind of oath, from the laws Civil, or Canon. IN this Chapter, such objections, as already are, and some which perhaps hereafter may be made against this kind of oath from the Civil, or Canon laws; come to be answered. Of these, most be made by the Treatisour, etc. and some may hereafter be objected (perhaps) by others. The Treatisours, be either against some circumstances about it; or else against the oath itself. But first, touching his by-matters, or circumstances. Because the private Schedule (concerning these oaths) which was set down by certain Doctors, (as is mentioned in the epistle to the Reader) containeth; that, the defendant in a cause criminal, is to answer other Articles, so they be not tending to the crime itself, though it be at the suit of a party: he saith, that the Maxim, of nemo tenetur seipsum prodere, is (thereby) so weakened, as it will scarcely now serve for a Minime. For reason of this consequence; he asketh, if this be not to go like the crab, obliqne, and to proceed the same way, although not to tread the direct steps? and asketh also, what should be meant by other articles, but such as concern circumstances, and inducements to the crimes? He is therefore to understand, that at the suit of a party, a man (by those laws) is neither to answer criminous articles diducing 1 Angelus de maleficijs. the very crime itself, nor yet such, as have any near coherence thereto, or be propinqui Actus ipsi maleficio. But of other matters having none affinity with the very crime; as whether he be of that jurisdiction, and such like; the defendant is by virtue of his oath (even at another man's suit) to answer: and therefore no such crooked measure is offered herein at all. But he seethe no reason (he saith) why there should be any difference between the suit, and instance of the party, and the proceeding ex officio: in that, the reason alleged for to make a difference, is but this: Penancies enjoined by Ordinaries, are not taken in law for poenae, but medicina. If he see not this, why there should be any difference between those two proceed; I marvel then, what cause he can see, so highly elsewhere, to magnify the course of proceeding by an accuser, as very equal, and just: but to condemn (simply) all proceeding of Office, as unjust, foreign, cruel, heathenish, and profane, and I know not what. That he may therefore see great cause of difference betwixt these two; let him a little weigh with himself, what the reason (at the common law) should be; why an Appellee is allowed more freedom in sundry respects, than a man indited at the Q. suit ex officio simply? and why, he may then put it to trial by battle with the appellor; but cannot have that trial, upon an Indictment? And also, why a defendant, against whom an Information is preferred for some criminal matter in the Courts of the Q. Bench, common pleas, or Exchequer (which nevertheless is by a kind of proceeding mixed of both the kinds) shall not be urged to answer, the bill, or any interrogatories upon his oath, as all defendants in Criminal causes, be forced to do in the Starchamber? He is also to be put in mind, that men use not in such brief schedules as that was; to allege for every matter, all the reasons they can: yet that one alleged, is of itself a reason sufficient, of such diversity. for is there as great reason, that I should upon mine oath discover my crimes, being no way thereof duly infamed, or they otherwise proved, for the satisfaction only of mine adversaries malicious humour by mine own more grievous punishment: as there is (when these or some like be precedent) that I should to mine Ordinary or Spiritual father; who in a far milder course, for his duties sake, & in charity, seeketh my good, by reformation of me, & amendment in me; and by removing the scandal, which else might justly be taken against me? And (by the Canon law) as is elsewhere touched, mitiùs agitur cum inquisito convicto, quàm cum accusato convicto. Seeing then upon conviction by way of accusation, the very ordinary penalty by law appointed, is (for the terror of others) imposed without any mitigation: therefore the oath cannot so reasonably thereupon be exacted, as it may upon the judges proceed, by his mere office, unto a far other more mild end, for the most part. But as if those Doctors had absolutely denied penances, which be enjoined ex officio judicis, to be any punishments at all, because they are said to be medicinae: he asketh, whether penance, although it be but standing in a sheet, aswell as the standing on the Pillory (in respect of public shame grievous and odious to all men) shall not be accounted a punishment? I answer, that neither the law, nor those Doctors in saying they be medicinae, non poenae, do thereby deny absolutely (as he reasoneth) that they be punishments. For this saying of the law, is a Negative by comparison only; which the Treatisor either would not, or did not understand, to be none absolute denial. and that penancies (in deed) be so, we may learn by S. 1 August. epistola. 159. ad Marcellum. Augustine speaking hereof in this manner: quis non intelligit magis beneficium, quàm supplicium nuncupandum, ubi nec saeviendi relaxatur audacia, nec poenitendi salutaris medicina subtrahitur? Standing on the Pillory which (as I take it) by a word borrowed of the Grecians, may be termed catamidtatio; it was even of ancient times, (aswell as at this day) accounted an infamous punishment unto the party, that endured it: and is allowed, for a good proof of infamy by law. but he that hath done public penance, is not (in law) to be accounted therefore infamous: but rather to be a man amended and reform; and such, as at whose conversion, the Angels in heaven do rejoice. and therefore his company is not afterward to be shunned or avoided, by any discreet or moderate Christian; as if he were still a man of stained credit, or conversation. So that the great diversity of the ends, whereunto these be referred; do make a very notable difference in the punishments themselves. For in the one of them, the delinquent is propounded for a public spectacle of shame & reproach, to be shunned of all men: the other, by these outward tokens of humility & submission, testifieth his inward sorrow & grief for the sin, and as it were thereby craveth (in pity and compassion) to be received again, into the Christian fellowship, as a man (by repentance) fully reconciled again unto God, and unto his Church. Hitherto in answer of his objections made against some by-circumstances of such oath. Against the oath itself, the Treatisour bringeth some reasons, some allegations from lawyers, & some out of the laws themselves. First he saith, there is no justice in the proceeding, at giving such oath: because there be not three in judgement, viz. the plaintiff, the defendant, and the judge; and thereunto allegeth Bracton. But what if the manner of proceeding ex officio were unjust, which in the second part is showed to be otherwise; can this prove the ministering of an oath to the defendant in a Criminal cause, to be unlawful? For first, proceeding ex officio may be, even where the matter is Civil, or criminal, howbeit but Civilly moved, and there (for the most part) none oath is used. Secondly, it may be, when none oath touching any crime, is to be ministered to the defendant at all. Lastly, an oath in a cause criminal may sometimes be tendered, where the proceeding is not of office at all, but having all these three persons in judgement, and that not by implication or representatively only: but even formally. and therefore (in all those respects) his argument doth not follow. yet for further answer, I must also tell him, that in all due proceeding of office, there be three persons in judgement. For (as hath been said) that which openeth way to such Enquirie, doth represent, and standeth in stead of a Plaintiff, for preferring up of the matter. Again, that an expressed and formal plaintiff to prefer up matter criminal, is not always required; is 1 Cap. 15. & 16. 2. part. manifoldly showed, by often practices recorded in the word of God itself, to the contrary. He concludeth also against general oaths, and against extorting (by oath) of the ground and foundation of Inquisition from the party convented: out of the said little schedule of the Doctors. From which conclusion albeit not following of those premises; we do not any way debar him; seeing no such practice is either allowed, or (I think) in this Realm heard of. and therefore he wrongeth all Ecclesiastical courts the more, who so often heapeth up these untrue and unlikely imputations against them. An other of his allegations, is out of 1 Clar. in pract. Crim. q. 3. julius Clarus; to prove (forsooth) by Canons, and Canonists, this kind of oath to be a profane, and more than heathenish manner of Inquisition, (for such is the mildness of the man's spirit) and contrary (if he be not deceived) to the rules and Canons of the Antichristian Church of Rome, which be more just (he saith) or less unjust a great deal then such, as have taken upon them to judge, by colour of the same. for procedere (saith Clarus) ex officio mero, est quando judex a seipso, & ex officio assumit informationes, contra deliquentem, & contra eum procedit etc. whereupon, he gathereth, that to proceed by Inquisition, is not to make the party by oath or examination to be his own accuser; but to receive information, and witnesses against him. This, which he thence collecteth, of not compelling the party defendant by oath, to become his own Accuser is true, if it be as truly understood, though it be not inferred truly from that allegation. for no man is by oath, so compelled: but rather by discovery of the whole truth, to clear himself of the crime after he be (as it were) accused, and brought into question by some of those lawful means, which open a way unto special Enquirie. Besides, this allegation maketh nothing for proof of the unlawfulness of such oath, after sufficient detection. For Clarus in this place, speaketh only of the process, or enquiry informative, grounded upon some Clamosa insinuatio, or scandal; and not of any part of process punitive, which followeth upon the former: at what time the oath of the party, is to be taken. which thing, the same Author, (throughout his whole book) most plainly showeth: if it had pleased the Treatisour to have perused but a little more of it. This therefore is a fallacy, of not disputing ad idem: besides, Ignoratio Elenchi. inciuile est, nisitotalege perspecta, judicare. The next of his allegations, is out of a mere 2 10. Petr. Ferrar. forma Inquisit. ver. forma publica. Civilian writer and no Canonist, as he supposed: with whom he hath the same, and no better luck, than he had afore with the other; for want of knowledge to distinguish, betwixt Process informative, and Punitive: for thereof only Petr. de Ferrarijs there speaketh, not once mentioning an oath: Albeit the Treatisour do gather, both that and other things also thereof, which be not there contained; which I will not now traverse with him; because they tend not to our principal purpose. Out of the law itself, he taketh hold of that Rule, which the said Doctors did allege, viz. nemo tenetur seipsum prodere. but that proditus per famam etc. tenetur seipsum ostendere & purgare, etc. (which they did also adjoin) he cannot in any sort brook, or digest, as a gloss, (he sayeth) confounding the text. yet is it not any gloss, but aswell warranted by law; as the rule itself. neither doth it confound, but show, how that rule is (truly) to be understood: so that one part of the law (without any antinomie) may stand with another. This himself might have remembered to be law, even by occasion of his own allegation elsewhere, viz. that such as refuse to swear or answer unto Articles, are by the Ecclesiastical law, to be holden pro confessis. If then that law do so deeply punish the contemptuous in that behalf; as to convict them therefore, of the very crime imputed: may we not gather, that the laws Civil and Canon, require men to answer even matters Criminal, upon their oaths? But if the Canon lawe-shall be by others alleged, to avouch such oath, as we here treat of: to this allegation in several places the Treatisour maketh these several answers following. First, he sayeth, that such oath is against God's word, and therefore no binding law: for which consequence, he allegeth Saint German, in his book of Doctor and Student. Secondly, that the two statutes of Submission of the Clergy, made in king Henry the eight his time (still 1 25. H. 8. 27. H. 8. continuing in force) do take away the Canon law. Thirdly, that this kind of oath is contrary to the laws of the Realm. All which asseverations are nothing else, but begging of that, which is the principal controversy. Touching the first of these, it cometh in the next Chapter to be disoussed; whether, ministering of such oath, be against God's word, or no. For the second, those two statutes are so far, from taking the Canon law away, that both of them do (in truth) establish, all Canons being of that quality, as is there expressed; unto all which we aver, this oath to be consonant. The Clergy (in deed) do there promise, not to enact or put in ure, any new Canons, etc. without the kings express assent: of which sort, this oath is none; for it hath been proved by far elder Canons, than that time. Concerning the third, we have showed; that there is not any great diversity betwixt those two laws in this point: & therefore much less, can there be any contrariety, or repugnancy. Lastly, hereto he answereth; that if any man shall seek by long practice and continuance, to give a new probate unto the Pontifical law, after so public a condemnation, and firing thereof by Doctor Luther: such must understand from him, that this kingdom is not subject to any foreign made laws, save such, as 1 25. H. 8. ca 21. agree to the Preamble of the statute, establishing dispensations. A man would think, if any part of Canon law should serve from those conditions required to make them English laws: that dispensations, (which of all other are most strict, and never afore that time sped in this Realm) should be holden for foreign laws, rather than this kind of oath, so usual afore and since in most courts. yet these dispensations are also there approved for English laws. Let him therefore understand; that, all those things there required (viz. sufferance, consent, and custom:) to make the Canons establishing such oaths to be accounted the customed, and ancient laws of this Realm, originally established as laws of the same; do in these oaths so aptly concur (as hath been proved) that none of his confident denials thereof, can or shall be able any more, to impeach them from so being: then the burning of the Canon law at Wittenberg by Luther (when the Pope had burnt his books at Rome) either did, was meant, or yet could abrogate the continual use of a great part thereof in Germany, even until this day; or than it could, or aught to have any force to disannul it here in England. for the statute establishing such Canons as there be mentioned, was made in the self same Parliament and Session thereof; that this Preamble was before the statute of Dispensations, whereby he would now overthrow the Canon law wholly. And both of those statutes, at the beginning of her majesties reign, were revived again in one Act. How can there then be any such contrariety, or abrogation general of the Canon law, as this man dreameth of: except all that were present in those two Parliaments, had been fast on sleep, when they twice passed them both together for statutes? Others perhaps (to as good purpose) will object; that ancient custom of Rome, viz. 1 Gell. lib. 10. cap. 15. Fenest. de Sacerd. cap. 6. Virginem Vestalem, & Flaminem Dialem, in me a jurisdictione jurare non cogam. hereof 2 Plutarch. probl. 43. Plutarch doth set down three reasons: first, that an oath is a kind of torture to a free man: Secondly, for that it is absurd in smaller causes not to credit their words; 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 he should be forsworn: which seemeth to be a detestable omination, towards the Priests of God. First, than we see hereby, in so much as this was a peculiar privilege granted to these: that therefore all others might (by Magistrates) be put to their oaths. And secondly, that it was from all swearing absolutely; and not in matters criminal only, which is our present controversy. For so Livy also 3 Livius lib. 32. testifieth hereof, where he saith, that Flamen Dialis amongst the Romans, might in no case at all swear, least at any time he should for swear. which in him was holden, as the most heinous thing, that could happen. Thus far in answer unto objections, made out of those two laws. CHAP. XI. That not only such an oath may be taken, but also being by Magistrates duly commanded, ought not to be refused, is approved by Scriptures; by practice of the Primitive Church; and of late times; together with a Reply unto certain answers, made unto some proofs here used. THe Innovators finding but small relief in the laws (being rightly understood) do flee, (as it is meet) unto the word of God. yet as hoping (fall worst that may) to be judges thereof in their own causes; and so to shroud their disobedience in refusing to be examined upon oath; under pretence of conscience, and of a religious care not to offend God thereby. And therefore they hold; that, they are by God's law bound, not to answer (in that sort) upon their oath: which is more than if they had only said; that they are not bound, and so left at liberty, either to answer, or not, as themselves should think good. whereby they would leave a dangerous impression in the people's minds; that such laws of this land (wherein they are borne subjects, and by which they are to be governed) may not be obeyed of God's people, with a safe conscience; as being contrary to the word of God. A matter assuredly of most perilous consequence, to leave unto the only scanning and final determination of every private subject; how far he need to obey the positive laws of his country. As it cometh therefore orderly in this place, so is it also a matter most fit to be discussed: whether the oath of a party in a cause criminal, & penal to himself, may be exacted, & urged by the Magistrate, without breach of God's law: and consequently not to be refused by the subject. It is said in 1 Rom. 13. ver. 1. 2. & 5. Scripture, that every soul must be subject unto the higher powers, for there is no power but of God; & the powers that be, are ordained of God: and therefore whosoever resisteth the power, resisteth the ordinance of God, and that they which resist, shall receive to themselves judgement: That we 2 Tit. 3. ver. 1. must be subject, not because of wrath only, but also for conscience sake. And 3 1. Pet. 2. ver. 13. we are commanded to be subject to Principalities and Powers, and to be obedient. And to submit ourselves 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, to all manner ordinance of man, viz. public government, for the Lords sake. By which power, ordinance of man, or public government, are not only understood all kinds of Magistracy, and superior authority; and that we may not resist, do violence, or offer contempt to their persons; but much more, that we are to fulfil, and observe all their politic laws, without wilful breach of them, so they be not repugnant unto God's word. For if this happen, then that hath 1 Act. Apost. ca 5. v. 29. place, It is better to obey God then man. And if they command contrary things, we must remember that we 2 Matt. 6. v. 24. cannot serve two masters. Yet Godsword doth not abrogate laws, common wealths, nor civil policies, but doth establish them. Therefore, except they which refuse to take such oath, can show some direct Prohibition either expressed, or to be necessarily, and immediately gathered out of God's word against it; they must know, that their contempt and disobedience (in this behalf) reacheth unto God himself; whose ordinance, both the Magistrate, and his laws be. S. 3 August. de verb. Domini serm. 57 Augustine hereof writeth thus; contumaciae crimen est, quod iubetur contemnere; quod praecipitur nolle; quod imperatum est, declinare. But more particularly to our purpose in handling, it may be proved by a general Council; that he which holdeth his peace, when he is asked, or will not directly answer; is wilfully disobedient, and may be convicted for such his stubbornness. For 4 Synod. General. 8. Actione. 5. when as one Photius was demanded by the Council, whether he would admit of the ordinances of the holy Fathers, and he answered not any thing thereto; the Precedents of the Synod signified unto him, that by his silence, he should not escape from being condemned; which (thereby) was made more manifest. And to like purpose, a late schoolman writeth: 5 Sotus de just. & iure. lib. 5. q. 6. When any thing is asked of the defendant, but according to order of law, he is uponpaine of deadly sin, bound to reveal the truth, yea though he be not sworn, but much more upon his oath. Therefore is it well gathered, that he, which being duly interrogated (though it be touching an offence) and refuseth to answer as he ought: first offendeth against justice, and against the 6 josu. 7. glory of God. secondly, he offendeth against the reverence of the judge, whom he is bound to obey, if he be under his jurisdiction. Lastly, against the Commonweal, which hath 1 l. ita vulneratus. §. ad l. Aquil. a great interest to have crimes discovered, and punished. Concerning the second of these; it is by great, and (some of them) ancient 2 Cyws & alij in l. 2. §. quod si actor. C. de iuram. calum. Civil interpreters delivered: If a man (who hath sworn that he will never take oath) yet having a suit, shall be commanded by the judge (according to law) to take iuramentum calumniae, and thereupon doth take it; that he shall not (thereby) be accounted to be perjured, because such commandment of the judge, doth excuse him. For mine own part, I have always taken it to be a 3 T. C. gross error in Divinity to affirm; that a man may not hold any human matter with a certain persuasion, nor do any thing in external actions, but such only as we have a positive, or affirmative warrant for, in the word of God. For if this were a true position; then a man might believe no history to be true, which is not in the Bible; no Maxims, or grounds of any sciences, nor common principles, left known unto us by the light of nature (as that two and two make four) nor that there is any such country as America, etc. neither might a man (with safe conscience) do infinite many things permitted by human laws, and sundry of them also commanded to be done: because all these histories and Principles, and the most of these laws be such; as can never (by any sound reason) be positively, immediately, and particularly proved out of Scripture: but only by this generality, that therefore they may be believed, or done; because they are not contrary to Scripture, are agreeable to the uncorrupted light of nature, or to sundry credible men's experience, or are by the politic laws of our country, received. For who can give any other sound reason directly drawn from the Scripture; that theft shall be punished with death: that matters of fact shall be tried by a jury of twelve, led sometimes not by witnesses, but by circumstances and probable inducements: that the eldest son shall have all his father's land (by descent) from the rest of his brethren, though they be never so many; who no less than the eldest are descending from him: that my kinsman removed (perhaps five or six degrees) descending of the whole blood from my father's brother, shall, and lawfully may inherit my land, before mine own father's son by another wife: that at one and twenty years, a man may effectually sell his land, but not the day before, albeit he have received my money: that the wreck of the sea, albeit the owner of the goods be certainly known, shall be confiscated, and belong to the Prince: that a stray proclaimed (according to law) after a year and a day, shall belong to the lord of the Manor, where it was taken up: with infinite such like? Therefore, it is no good, nor safe ground, that the Innovatours do stand upon: when as (being pressed to take such oath according to the laws of the Realm) they allege; that in conscience they may not do it, because they find no direct warrant for it by Scripture, whereupon to stay their consciences. For if it were granted unto them, that there be no commandments, no examples, no footsteps or traces thereof in Scriptures: yet if it be not by them prohibited, or condemned, the general obedience of subjects will tie them thereunto. But I purpose also (here) to show, the lawfulness of it, even positively out of the word of God. First, declaring that Magistrates may lay oaths upon their Subjects, which are necessarily by them to be taken: Then that they may be tendered and taken in causes criminal and penal to the parties themselves: and lastly, I mind in the next chapter (God willing) to answer the objections, that I find brought to the contrary. That when an oath is duly imposed, there is a necessity enjoined the subject to take it; doth appear by the commandment of God himself: Thoushalt fear the Lord thy God, and serve him, and shalt swear by his name. which words being dispositive, not only to the manner of the oath, viz. by Godsname; but also to the action itself offwearing: doth argue evidently, that there be oaths, as well necessary, as there be voluntary. The like commandment is given by the Lord in the prophet 1 jere. 4. v. 2. jeremy: O Israel, thoushalt swear, The Lord liveth, in truth, in judgement, and in righteousness. Wherein, there is both a commandment, of that action; and an instruction, in what sort, an oath is to be taken, and with what necessary adjuncts. In the charge that 1 josh. 23. v. 2. josua gave to all the Magistrates of Israel; viz. to their Elders, to their heads, their judges, and their Officers, this (amongst other things) is contained; that, they shall not make mention of 2 Ver. 7. the Gods of other nations, nor shall cause to swear by them. And therefore Magistrates have authority, to cause (those that be under them) to swear, and to take oaths. For an example of such charge given, we have that of king Saul, who not only 3 1. Sam. 14. v. 24 & 28. charged the people with an oath; but made them vow with a curse, not to eat any food that day till night. Therefore one of them reported thus to jonathan, saul's son; that his Father had made the people to swear. The most wise king Solomon, when he meant (for a punishment) to confine and imprison Shimei, within the compass of jerusalem, for his revilings of king David; telleth what he did 4 1. Reg. 2. v. 42. & 43. unto him: Did I not make thee (saith he) to swear by the Lord, and protested unto thee, saying, etc. why then hast thou not kept the oath of the Lord, and the commandment, 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 go out of the City: and therefore did bring apparent danger with it, to entangle him as deep as his life. And albeit the cause which he had of going afterward out of the City, might seem something reasonable, in that he 5 Ibid. v. 39 & 40. went forth but to fetch home two of his servants, that had run away from him: yet did this breach of his oath, and of the king's adjuration to him, (wherewith he had charged him) most justly cost Shimei his life. So king Saul 6 1. Sam. 24. v. 22. 23. urged David to swear unto him; that he would not destroy his posterity after him. For a private offence and injury, only between neighbour and neighbour, king Solomon testifieth; that a necessary oath of purgation, may be required by the 7 1. Reg. ca 8. v. 31. & 32. complainant: When a man shall trespass against his neighbour, and he lay upon him an oath to cause him to swear, and the swearer shall come before thine altar in this house: then hear (O Lord) in heaven, and do and judge thy servants, that thou condemn the wicked, to bring his way upon his own head, and justify the righteous, according to his righteousness. Where we see, that a private person upon a supposed offence, and trespass against him; may urge his adversary unto a necessary oath, albeit the matter be criminal, and penal to him, if either he shall refuse it, or be afterwards otherwise convicted. How much more than may a Magistrate urge it, for the public interest, especially for an offence supposed to be done, against the Church or Commonwealth? King josias also meaning to reform religion, and to restore the true worship of God, greatly then decayed; did make a 1 2. Chro. 34. v. 31. & 32. covenant and vow, and caused all that were found in jerusalem and Benjamin to stand to it. So 2 Ezra. ca 10. v. 5. Ezra the Scribe (being also a Magistrate) caused the chief Priests, the Levites, and all Israel, to swear; that they would, do according to this word. which oath, that by virtue of his office, it was imposed necessarily upon them; and not only voluntarily by them taken; we have good testimony, in the words 3 Ibid. v. 4. next going before: Rise (saith Sechaniah unto Ez-ra) for this matter belongeth to thee, and we will be with thee, or assist thee: confirmare, be thou resolute, and effect it. And likewise out of the book of 4 1. Esdr. Apocr. ca 8. v. 92. 93. Esdras Apocryphal, where that story is reported, for it is there said thus: To thee it doth appertain, and we are with thee to make thee strong. whereupon is added: And 5 Ibid. v. 94. 95. he made them swear. By which we may gather; that if any of them would not have sworn upon his commandment; they should have been compelled thereunto, by some Civil constraint. When the richer jews had received the lands of the poorer sort to Mortgage, and they were forfeited unto them; yea and their very sons and daughters were drawn into bondage, for satisfaction of such things, as they had borrowed for their necessary sustentation: 6 Nehe. 5. v. 11. 12. & 13. Nehemias' caused the Priests to swear, to restore these again, and to forgive the hundredth part of the very principal, due unto them. So by the premises, we see; that Magistrates may exact oaths of those that be under them, which ought not to be refused. The Treatisour himself will not be strait with us in this point. for he yieldeth that the Magistrate may impose oaths, so these conditions following, be observed, videlicet, that either the glory of God be thereby maintained, or the good of the Common wealth, or of our neighbours furthered: also that it be not in matters of trifles: which though it be true, yet he proveth it, even triflingly: because (saith he) de minimis non curat lex. Likewise, that it be not over frequent: that, it be not touching matters impossible or beyond a man's power: that the Deponent be not circumvented with captious questions; and that it be not given to men of suspected faith, or credit. which last, is neither by any law, nor Divinity (that I know of) required: except he thus understand it; that an oath is not to be ministered unto any who is probably suspected to be likely, to forswear himself. For a man may be suspected, yea and defamed also for conversation of life, and yet without just cause: yea, and though there be cause of the fame and suspicion; yet is it not (in charity) to be presumed that every one, who (through frailty) hath offended; will therefore forswear himself, when he shall be put to an oath. These afore recited, be his proofs, and all his premises (taken from Divinity,) whereupon he buildeth his frequent and vehement conclusions against the oath which we speak of, to make it contrary unto God's word. which premises and conclusion, I believe, can never be truly drawn together, into a good consequence; by any strength of man's wit, or by art of reasoning. For though these mayor propositions may be such as will be yielded; yet his assumptions will always be untrue, and not to be proved. The next point to be handled, is, that oaths may lawfully be taken, even in matters criminal and penal to him, that taketh them. If an oath must be kept, though it be to a man's own hindrance and damage, then may it also be taken. For that which we need not keep, and may lawfully break, was unlawful at first, to be taken. But sundry oaths made, though happily tending to our own hindrance, must be kept; for so it is commanded indefinitely, and indistinctly, by God. And it is 1 Num. 30. v. 3. Psal. 15. v. 4. assigned for a special mark of a godly man, to swear to his neighbour, and not to disappoint him, though it be to his own hindrance. How much more then, must it be kept, being commanded by a Magistrate; then when it is made to a private person only? and being by virtue of his obedience imposed, then when it is only voluntarily taken? And therefore being to be kept, may also (lawfully) be taken. 1 Gen. 24. v. 3. Abraham said thus to his servant, I will make thee swear by the Lord God of the heavens, and of the earth, that thoushalt not take a wife unto my son, of the daughters of the Canaanites. whereby appeareth, that a Superior, may cause him, that is under him, to swear to do his endeavour in a private matter appertaining to him. Much more therefore, may a public Magistrate, cause those that be under him, to swear: touching a matter, wherein the common wealth or Church of God, hath interest, to have it sincerely dealt in. When 2 Gen. 25. v. 33. Esau was greatly distressed by famine, so that he was almost dead; jacob moved him to the sale of his birthright, and took an oath for confirmation of it: and the right continued thereby ratified in jacob. which argueth, that an oath may be kept, and shall stand, even where he that sweareth, is thereby greatly endamaged, prejudiced, and overreached, so it be not by fraud and mal-engine. We are forbidden to 3 Col. 3. v. 9 speak untruth, or to lie one unto another, even in private affairs amongst ourselves: and are 4 Ephe. 4. v. 25. commanded, not only to cast off lying, but also to speak the truth every one to his neighbour, because we are members one of another. Signifying thereby, that in all matters this is to be done, where it is expedient for our neighbour, and he hath interest, to know the very truth. How much more then, ought we to tell, and manifest a truth, being commanded by a public Magistrate, for a common benefit, seeing we are all members of one Commonwealth, and of one Church; howsoever it may turn to our private damage, or of our friends? For if a man be bound to avouch the truth (oftentimes) even with his blood; how much more is he to do it, in his words? Where a man is supposed to have borne false witness against another, & is thereof brought into question: the law of God appointeth the 5 Deut. 19 v. 17. 18. & 19 men which strive together, to stand before the Lord, even before the Priests, and the judges which shall be in those days: and the judges shall make diligent inquisition: and if the witness be found false, and hath given false witness against his brother, then shall ye (saith God) do unto him, as he had thought to do unto his brother. Now, how can this diligent Inquisition be made, or the witness by any possibility, or likelihood be ever found false, but by re-examination of him again (as Daniel did with the two Elders) touching every circumstance, for the bolting forth of the truth? For it cannot be imagined that more good witnesses may be had in every matter of perjury, that are able to depose in the flat contrary. But because the matter is criminal to condemn him of perjury and very penal (even as deep as the punishment of the other should have been, if the matter had been found true,) which may happen to be capital: It will (perhaps therefore) be said, that the supposed false witness, may not be urged to answer his reexamination, upon his oath. But the very like reason and allegation may be made, that he may not be urged to answer either yea, or nay, to any question at all thereabouts. For if the question demanded be true, it is no more lawful for him in the sight of God to deny it without oath, than it is with an oath. And so could there be no likelihood of any possible means, ever to find out a false witness. and then that law of God should serve to none use; which were absurd and impious to imagine. And what cause, (I pray) have the judges of that Inquisition to believe him upon his own bare word, (if he list to answer at all, which is to do more, then by the Innovators is thought needful) whose very oath, they have just occasion to suspect, and do therefore make Inquisition against the truth of his former oath? So that hereof it must needs (by due consequence of reason) be gathered; that it may happen, a man may be examined upon his oath, in a matter criminal, of his own turpitude, and very penal to himself, and that justly. There seemeth to me a very direct and plain place in the Proverbs of Solomon; for proof, that an adjuration & curse made but indefinitely, & generally against any whomsoever, that had committed an offence: did before God, bind the offender (for avoiding of sin) to reveal the matter, though it concerned, even his own turpitude. He 1 Prou. 29. V 24. that is partner with a thief (saith Solomon) hateth his own soul; he heareth cursing, and declareth it not. To be partner with a thief, is (no doubt) a filthy crime. and such a man cannot be aptly said, to hate his own soul, unless the fault itself were a grievous sin. The reason, why such one is noted by the holy Ghost so grievously to sin, as that he is thereby accounted an enemy to his own soul, is; because he heareth cursing, and revealeth not the theft, wherein he is partaker. It resteth then only to know, what that cursing is, which in this place is meant. The Hebrew interpreters (as I have learned of those, who be very skilful, and conversant in them) do expound it of that curse with adjuration; which the Priests usually gave against any, whosoever had done or known of some certain offence, which was committed; if they would not reveal, who were the offenders. whereupon doth follow, that even the partner with a thief, upon such a general and indefinite curse; was bound in conscience, to reveal the theft; though it touched, both another's, and also his own shame, and dishonesty: and albeit he was not called into question, nor (perhaps) had in any suspicion thereof. Then how much more, when God's Priest, or the judge (who is God's Lieutenant) upon probable grounds and inducements afore discovered to him, doth charge a singular person with such a crime, is he bound before God, to reveal the whole truth? This kind of Adjuration with curse, to the intent to have revealed, by whom goods were stolen; was also in use, amongst private persons in the people of God: and they had a conscience (being but charged indefinitely amongst others, without any discovery or cause of suspicion against any of them in particular) not to conceal the theft: as 2 judic. 17. ver. 1. 2, 3. appeareth, by the history of Michah, and his mother. for that which the latin interpreter there, readeth thus: quos separaveras: Arias 3 Montan. ibid. in lib. de varia Republica. Montanus, by the Hebrew, Chaldee, and Greek copies, proveth; that it ought to be expounded in this sort, viz. quos furto amiseras, viz. the 1100. sickles, or half ounces, which were stolen from thee, and for which thou did curse, or adjure (faith Michah her son) I have them. Furthermore we are 1 1. Cor. 10. v. 31. bound to do all to the glory of God; but it belongeth to the glory of God, for a man (by due presumptions burdened with a crime, and charged by the Magistrate) to confess of himself, as appeareth by the history of Achan. For, albeit the lot fell upon him; yet was this nothing but an inducement to ground a special Inquisition against him, being so detected upon the general Inquirie. For if hereupon only, he might have been executed (because the discovery by lot, was by divine providence directed to fall upon him) than joshua needed not to have required any further confession of him. Yet he doth not rest in that detection, but goeth further with a most solemn adjuration (in those days used for 2 Levit. 5. ver. 1. an oath; the Hebrew word signifying both, and being translated sometimes juramentum, and sometimes adiuratio) in this 3 josh. 7. ver. 19 manner: Son, give glory to the Lord God of Israel, and make confession unto him, & show me now, what thou hast done. urging him upon this general detection by lot; to a particular confession of the hidden crime, and the circumstances thereof; albeit the punishment of it was capital. In which history we find; first a fear conceived by joshua: but at large, upon the bad success they had in battle; that it was likely, God was offended with them: then a care in him to enter into a general enquiry, for the finding out of some probable and presumptive matter of inducement, against particular persons, who were likely, to be the offenders, that had stolen something which was accursed, and for which God was so displeased. therefore, according to the direction given by God himself, and the custom of those times, when as God did more miraculously, and extraordinarily work among his people; knowing, that albeit the lots were cast confusedly together into the lap; yet God by his wonderful providence disposeth of them, as to his own divine wisdom seemeth best; he followed that course in his general Enquirie, of casting lots. A general Enquirie, I call it, because, albeit it was most probable, some heinous offence to have been committed amongst them; yet was it not known (till God himself revealed it) what kind of crime it was, nor who was likely to be the committer of it. But after the lot was fallen upon Achan, whereby a sufficient inducement was given to proceed specially against him: joshua then entered into a special Enquirie; by examining and charging him, as he tendered the glory of God, to tell the whole truth, what he had done. For as yet, albeit by the lot fallen upon him, there was good probability against him, to be that grievous offender: nevertheless joshua had no conjecture, what the very particular thing was, which he had stolen, nor whether he had any partners, nor yet knew he any other circumstances of place, time, etc. so that this second Inquirie was special in respect of the person, but (in some sort) general in respect of the manner of the fault. which consideration greatly fortifieth our cause in handling: wherein, after good inducements found, these Inquiries are special both for person, and for particularity of crime. Whereby, is also argued a fortiori, that whereas by fame, or other good presumptions and evidence; a man is detected of crimes most secret afore: there the Magistrate may exact the parties own confession: especially if it be not so penal, as either life or limb, which this of Achan, was. Next may be gathered, that to confess unto a Magistrate duly charging a man, is to confess unto God: thirdly, that to make such confession to God, is to glorify him: And lastly, that in like cases, the party is bound to disclose the particular circumstances, though perhaps he be not severally and in particular interrogated of every one: for it is there said, show me now what thou hast done. Whereupon Achan being touched in conscience, & knowing his duty to the Magistrate; confessed his fault, with all the particularities thereof. If this were done upon his oath (as many learned interpreters do hold) then may an oath be urged in a matter criminal, and most penal to the party. If he thus confessed, and was bound so to do, though it were without oath: then how much more, when the party is tied by an oath, given by the Magistrate, as it is proved, it may be lawfully. And albeit the Treatisour himself confess the effect of that which we have gathered touching this History: yet he saith, the Magistrates charge unto him; that (remembering the glory of God) he should confess the truth: is none oath. For it were a hard conclusion (saith he) together, that he is peri●…red, who being so charged, confesseth not the truth. For answer whereof, if being so charged, the party answer not at all, then incurreth he wilful disobedience; which is no less a crime then Perjury: and is (thereby) also, to be convicted. But if he answer untruly; then falleth he into another grievous sin. for (as it resteth hereafter to be showed) it is no more lawful or tolerable, to lie unto God's Magistrate; than it is to swear falsely afore him. And if this were an Adjuration (as himself seemeth to incline) and were lawfully done of joshua: then by the charge of an oath was Achan bound, to discover the whole truth, for so we read in the place of Ezra afore alleged, according to junius and Tremellius translation: he 1 Ezra 10. V 5. adjured the chief Pr●…stes, Levites, and all Israel, that they should do according to that point, and they swore. Whereas Caluin, by the form of ●…ose conceived words, which were used in other oaths, ●…ongs the people of God, gathereth in his Institutions, that Achan there took an oath: the Treatisour nevertheless, to confute that excellent, and learned light of God's Church (for so he calleth him) writeth thus, viz. though that form of words, give glory to God etc. were used in oaths: yet it followeth not, that wheresoever it was used, that was an oath. In deed 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 conceived, or set words of solemn oaths amongst the people of God: And because in this action, being for finding out of a truth (otherwise kept secret) it was necessary to be done as sincerely, as mought be: therefore the argument of Caluin is very probable; to prove that it was done by his oath. But the Treatisour seemeth also to admit it, and herein to let this hold go: and withal little less; then to yield up the whole cause. For an offence being made known, which is dangerous to the state, & the party being found by due, and lawful trial: if after (saith he) these rigorous exacters in so mild, & courteous manner, in the name of God shall entreat, or (if they think good) depose him to reveal the truth in particular (he meaneth, give him an oath to that effect) no man (I suppose) would find himself grieved, with their proceed. Whereby, saving, that he here seemeth to suppose the falling of the lot upon Achan, to be a trial and a full and sufficient conviction of itself: he doth in these words, as plainly establish the oaths that we defend, as may be. But when a trial, and full conviction is already made; to what purpose, (other then to feed the hearers curiosity) were it; to minister an oath to the party condemned, (especially having no complices more than in this case) that he shall unfold & recount up every particular circumstance, of the crime that was by him committed. But if by those his words, of due and lawful trial, he means nothing else but some lawful discovery, opening way, and occasioning the judge, to enter into the parties special examination by oath: then is he come home jump unto them, whom he so vehemently shaked up afore. When a man is 1 Deve. 21. v. 〈◊〉. usque ad 9 found secretly murdered in the field, and the murderer is not known, nor suspected: God appointed in his Law, that all the Elders of the next City thereunto, should use certain ceremonies before the Priests (by whose 2 Ibid. ver. 5. appointment, each controversy of blood, and of wound was determined) and then swear, according to this conceived form of words, viz. 3 Ibid. ver. 7. our hands have not shed this blood, neither our eyes have seen him who shed it: that is, none of us (every man swearing severally for himself) have done it, nor any of us know, who is the murderer. Where we see, there was none other detection, nor cause of presumption, but the only vicinage, and nearness of place. yet even hereupon, the wisdom of God thought good to press them of the next City, with this necessary oath, partly of purgation, and partly of Enquirie, even in a crime capital. For if any of those Elders were the murderer, or were an accessary thereunto: was he not thereby driven, either to damn his soul by perjury: or else to reveal his own shame, to the loss, not of his honesty only, but also of his life? If this being Gods own law, be but equal, then how can the exacting, of party's oaths, being upon far more probable, and strong presumptions detected, and called in question, and that for crimes not tending to any mutilation of limb, and much less capital: be thus absolutely challenged for tyrannical, or unequal; as they be by some, now of late times? But this argument of ours, the Treatisour goeth about to answer by a very strange question, viz. where is (saith he) oath (in this case) given to any particular person? as if that oath, which were lawful to be imposed upon many for one matter; were not also lawful to be given unto one alone, where he only is suspected thereof? Where there be many several persons, there must needs be some particular persons, I think. Well, he will then (belike) allow this oath to be given, so there be many defendants in one cause. But (saith he further) where is oath to answer Interrogatories upon unknown, secret, or barely suspected matter? for the felony is apparent, the offendor only lieth hidden: whereas the Inquisitors ex officio have the man afore them, whom they will examine; but the matter (for the most part) is secret, etc. and many times but a fame of a crime never committed. As if this difference (though it were, as it is not general) could make any diversity for proving a lawfulness in the one, & an unlawfulness in the other? This therefore falleth under that head of his Sophistical devise of such differences, as touch not the very point in controversy. Besides, there be Inquiries of office (which absolutely he impugneth) some, aswell where the offendor unknown, is inquired of in respect of the apparent crime; as for example in Forgery, libeling, Murder, etc. as there be, when the Crime (being but presumptive) is inquired of; and the person suspected, is apparent, as in adultery. Hath not the treatisour learned to note the difference which is, betwixt Crimina transeuntia, viz. where no traces of the crime do remain after the fact, as of secret conspiracies, seditious words, and adulteries, & c? and such crimes, as be Permanentia, viz. where some evidence of the crime committed, doth still remain and continue; as in Murder, Forgery, lybelling, & c? and yet the inquiry by the party's examination upon his oath (so it be neither Capital, nor for Mutilation) is no less lawful and necessary in the one, than it is in the other. In 1 〈◊〉 Levit. 5. v. 1. Leviticus, a sacrifice is appointed to be made for certain sins, amongst which this is one, according as Arias Montanus doth translate it forth of the Hebrew. And if a soul, or a man shall have sinned, and have heard the voice of an Adjuration or oath, and he a witness either hath seen it, or doth know it: if he do not reveal it, he shall bear his own iniquity. That which is here said; If he have heard the voice of an oath, the Geneva translation uttereth thus in the Margin, (as if it were nearer to the Hebrew than the other in that text) viz. If the judge hath taken an oath of any other. If this than be the meaning, we are hereby bound to reveal what we have seen, or known touching that; which the judge seeketh to find out, by another man's Oath: yea, though we be not at all pressed therein; much more ought we then to tell what we know or have seen, touching the matter; when we ourselves are particularly so commanded by the judge. Saint 1 Ang. in quaest. Levit. ad ca 5. quaest. 1. Angustine expoundeth it of this case, viz. where a man heareth another swear, and depose falsely. For (saith he) this, that place seemeth to say, that a man sinneth, who heareth another swear something, that he knows to be false, if he hold his peace. But he is then said to know, either when he is a witness of the matter deposed of, or did see it, or was privy to it, that is, did by any means know it, as either by seeing it, or by hearing him speak of it, that now sweareth otherwise. So that he leaveth it at large, to extend to Oaths (falsely) taken, either before a Magistrate; or privately, or how else soever. junius in his second edition of Annotations upon this chapter, restraineth it only unto such vain, and rash oaths, as men swear extraiudicially: making him that heareth another to swear (without reprehending him) to be guilrie of sin himself, as no doubt he is. But surely this interpretation of his, cannot be grounded upon this place: at least the place cannot (by any means) be only restrained unto this case. For the matter concerning which a man heareth another swear, is the thing (here) principally considerable; and not the very Oath itself: because it is not only said: If a man hear the voice of an oath: but it is also added (as most material) & ipse testis vidit, & scivit, which matter he, as a witness hath seen, or otherwise, by some means hath knowledge of; if he shall not declare it, or reveal it, he shall bear his own iniquity and sin. Therefore it is the matter which the by-stander is able to witness of (by reason of his sight, or some other means of knowing it) that (for the avoiding of sin) must be declared. Again, if it were only meant of him, that heareth another blaspheme, or vainly, and falsely, swear, and doth not reprehend, and rebuke him for it: then could not the verb of Declaring have been used, but rather some word of rebuke, or reprehension. Thirdly, if it were meant only of the Act of swearing that is not rebuked; then needed no mention to have been made, of any other sense, but of hearing only. But we see, that there is mentioned seeing; and also (with a disjunctive) any other means of knowing it, besides hearing of the oath: and therefore, that meaning which junius giveth thereof, cannot (possibly) be the very true sense of this place. Nay junius himself in his first Annotations, confesseth the most to hold, that it ought to be understood thus: viz. that he sinneth, who heareth an oath given to another man touching any matter, whereof he hath knowledge; if he do not therein disclose what he knoweth. So that whether the other depose vainly, falsely, or not, is not here spoken of, or to be attended: but whether a man conceal his knowledge of a matter in question, that is convenient to be known unto a judge. for it is he, that hath authority to use the voice of an oath, or of that adjuration or charge unto another, which is here spoken of. By this sense hereof, given by the most, and flowing easily from the very words themselves, may be gathered; that an oath may be given to the party inquired of indefinitely, as the judge (according to law) shall think good to proceed, even before any witnesses be produced against the party: that this voice of an oath and charge to swear, may be given; before it be known whether any, or what witnesses can testify therein: and that a man knowing the truth touching a matter whereof another is inquired of by oath, ought (for avoiding of sin) to testify, and to declare his knowledge therein. Yet because in that place, no mention is (expressly) made, of any other person but of him, that heareth such oath, who also hath seen or known something, and who is to declare and reveal it, or else to bear his own sin: therefore it is also (very probably) by some taken to have place, when a mans own self is adjured or charged by the Magistrate, to take oath. For the person of the Magistrate, or some other must needs be understood beside, though none be expressed; because it is said: If a man have heard the voice of an oath, whereby some other person, than the hearer himself, is necessarily implied. For albeit the Hebrew interpreters do understand it of that adjuration with curse, which was done by the Priest: whereby he (usually) cursed any whosoever had committed some particular apparent crime, though the person were unknown & unsuspected, if they would not reveal it, according to the place afore alleged, out of the 29. Chapter of the Proverbs: yet the Chaldee Paraphraste, that writ in, or before Christ's time, and of all Interpreters is of highest and most uncontrolled authority, understandeth it of the judge, and reads it thus, viz. the voice of Adjuration or Execration made by the judge. And then out of both these Interpretations doth follow: that (without sin) a man cannot but testific, both against another inquired of; for it is said, whether he have seen: & also against himself (if it be required) for it is said, or have known of it. which may as properly be referred to a man's own fact, as to any other man's: & the rather to his own; because, a man is least ignorant of his own facts. And upon this latter acception of the place, it doth follow; that a judge, and Magistrate may lawfully tender & urge such oath, and a subject ought not to refuse it: because he shall bear his own sin, for hearing the voice of an oath given, and for not revealing his knowledge in that matter. When a man doth deliver money or stuff, of trust, 1 Exod. 22. V 7. & 8. to be kept by his neighbour; if it happen to be embezzled away, and therefore thought to be stolen, if the thief be not certainly known, or found: he, to whom they were so delivered in deposito, though he had nothing for his pains, nor there be any presumptions against him, that he hath withdrawn it: yet (by the law of God) must take a necessary oath, of purgation and Enquirie (upon the other man's only suspicion) before the judges; not only, that it is stolen (which might justly perhaps be doubted) but also, whether he himself hath put his hand; that is by any direct, or indirect means have fraudulently dealt, touching his neighbours said goods, or no? The same is also a little after established by God, touching any 2 Ibid. V 10. &. 11. quick goods, happening to be left in deposito: For if a man deliver unto his neighbour to keep; ass, ox, sheep, or any other beast, and it die, or be hurt, or be taken away by enemies, and no man see it: An oath of the Lord shall be between them twain, that he hath not put his hand unto his neighbour's goods, and the owner of it shall take the oath, and he shall not make it good. where appeareth, that upon the mutual suspicion only, of the one against the other, both the parties are to take such oath, which, though it do tend to the discovery of a man's own shame, dishonesty, fraud and damage (if he happen to be guilty) yet is he of necessity to take it, or else to be holden pro confesso & convicto; and is so well allowed also to be given by the judges, and to be taken by the parties; that it is there called, an oath of the Lord. Now that he must necessarily take such oath, though the cause be criminal, so that he must either discover his own turpitude, be sinfully forsworn (if he be indeed guilty thereof) or else be convicted as guilty for his contumacy; doth very plainly 1 Levit. 6. ver. 2, 3. 4 & 5. appear by Leviticus: where a sacrifice of atonement for such a sin of perjury is prescribed, besides satisfaction unto the party wronged. If any do sin (saith the Lord) and deny unto his neighbour that which was taken him to keep, or that which was put to him of trust, or doth by robbery or by violence oppress his neighbour, or hath found that which was lost, and denieth it, and sweareth falsely: for any of these things that a man doth, wherein he sinneth: when (I say) he thus sinneth and trespasseth, he shall then restore the robbery, etc. So that hereby is manifest, that in sundry criminal matters, even of a man's own turpitude such as be prohibita quia mala, he may be urged to a necessary oath, and namely touching his detaining (with denial) of goods left (upon trust) with him: also touching robbery, violence, and oppression by him supposed to be committed against his neighbour. But there could never be any possibility in a matter secretly carried, either of bewraying a man's self to his own shame, loss, or else for swearing himself, as is noted by this place; if he might safely, nay if he were bound in conscience to do (as these Innovators now pretend, and practise) viz. to refuse to answer directly, and particularly, to any of these crimes that be asked of him, with oath, or without his oath, but might lawfully put it over to be proved only by witnesses. and then were it wholly in vain to appoint sacrifice for a sin: into the danger of which sin a man could not possibly fall, except he would first commit another sin. Seeing then by the equity of Gods own judicial Law, in a matter criminal, and of a man's own turpitude, he may be examined, and must necessarily answer by oath, or else shall be holden convicted, even upon a private man's suspicion alone, seeking therein but his own particular interest and satisfaction: how much rather upon sound, and good detections, and presumptions, may this be urged by a Magistrate, and ought not to be denied by the subject, where a common good to an whole Christian state is sought, and the parties own reformation, by due correction and punishment, concurring beside, with the laws of the Land, that iequireth this part of obedience in all subjects? This judicial, and decisory oath here spoken of, the Treatisour calleth a public oath, in respect (as it seemeth) it is openly, and judicially given before the Magistrate; and confesseth it to be necessary: notwithstanding it be but touching a private matter of goods, betwixt party and party. and therefore à minori ad maius: or (as Lawyers speak) à fortiori, it must needs be more necessary for a public crime, then for a private trespass; because the poison and malignity of the public, may prejudice, and plague the whole common weal: if not always directly, yet by the lewdness of the example, and may give cause of offence unto the well disposed. If a man 1 Num. 5. ver. 14. bemooved with a jealous mind, or (as the Hebrew uttereth it) if the spirit of jealousy come upon him, so that he is jealous of his wife, that (perhaps) is defiled: or if he have a jealous mind, so that he is jealous over his wife which is not defiled, and so the matter doubtful: 2 Ibid. vers. 13. Ibid. vers. 15. Ibid. vers. 19 20, 21 & 22. then the Lord in such case appointeth, that the man shall bring his wife to the Priest, etc. and the Priest shall charge her by an oath, and say unto the woman: If no man hath lain with thee, neither thou hast turned to uncleanness from thine husband, be free from this bitter and cursed water. But if thou hast turned from thine husband, and so thou art defiled, and some man hath lain with thee besides thine husband, (than the Priest shall charge the woman with an Oath of cursing) and he shall say unto her: The Lord make thee to be accursed, and detestable for the oath, among thy people, and the Lord cause thy thigh to rot, and thy belly to swell: and that this c●…rsed water may go into thy bowels, to cause thy belly to swell, an●… thy thigh to rot: then the woman shall answer, Amen, Amen. In which course of proceeding, I observe to the purpose in handling, that this strait Enquirie most dangerous to the body and soul of the woman, if she swear falsely: is grounded only upon the jealous suspicion of her husband: that it is in a crime capital to her, if she be guilty, and shall choose to confess it; rather then to forswear herself (with hazard of soul, and of a most loathsome disease of the body) for an adulteress (by the same law) was to be stoned to death: and that it is of great turpitude unto her, and is prohibitum quia malum: and lastly, that it is in a hidden, and secret crime even in thesi, of his own nature, and in general. For the slender remnants of honest, and unhonest, left even to the very reprobate, ever since the fall of our first parent, doth remove this action (even where it may be lawfully committed) from the sight, and knowledge of others, so much as may be. And in this 1 Ibid. V 13. place, it is hidden and secret exipsa hypothesi: because the case is put, that there neither be witness, nor she taken with the manner, and yet the husband hath her in jealousy. So that if God (in his divine wisdom) found it equal and just, for satisfaction only of the strange humour of jealousy, not only (upon pain of conviction) to make her undertake so perilous a kind of purgation, but also to charge her by an oath, and a most solemn curse, to declare the truth in a crime of this quality, and consequence to her life: how can the wisdom of those, that challenge oaths of far more apparent mildness in divers points noted, stand so opposite to the wisdom of an whole Realm for many ages together: and being so strongly warranted by the wisdom of God, both in this, and the former judicials, serving for the governance of his own peculiar people? In answer of this example out of God's law, the Treatisour saith, that the woman is not here called for ex officio: but upon the complaint of her husband. But if it be convenient and equal, upon that most slender ground of jealousy, and upon the husbands suspicious denunciation, who perhaps is weary of his wife, and mindeth to put her away, if his jealous humour in that behalf, be not satisfied: how much more than is it equal and just upon the judges office to be done, who is no way privately interessed, & for the satisfaction or preservation of the church, or common weal, to remove a common scandal and offence, by the parties clearing, or by his punishment? The consequence of this mine argument to be good, for proof of a far greater equity, in the one then in the other, viz. rather to minister such oath of office, then upon an Accusers complaint, the laws, both Civil and Canon, and the customs of all nations abroad, do warrant unto us. all which, do permit an oath touching a crime, to be ministered unto the defendant ex officio judicis, and yet they all do deny it upon an accusation, or upon a complaint made by a voluntary and private party. And therefore this difference by him taken is such, as maketh flat against him: without working of any diversity, to infer an equity in the one, and an unjustice in the other, as is pretended. therefore untruly, and vainly doth he surmise, that out of this example we will conclude, that every judge Ecclesiastical, to satisfy his jealous suspicion of any crime, may appose by oath, and compel men to their purgation: a matter repugnant unto reason, unto law, and unto all practice. For no mans only bare suspicion, besides an husbands; can (by any equity) work an interest to drive an other to purgation of such a crime, by his, or her oath. The examples also of godly men reported in Scriptures, do sufficiently condemn the froward disobedience of refusers of such oaths, in these days. For they being asked (sometimes) particular questions dangerous to themselves (if they had not stood clear) and, sometimes charged (even but in generality) to answer what should be demanded of them, they used not any such frivolous tergiversations, and evasions, as this sort of people, and as Seminary Priests do. that is to say; Let me know every point afore, that you will ask me, and then I will tell you what I will do: or I will answer so far as I am bound by law, and by a good conscience, whereof (by your leave) I myself will be judge. or I will not swear to accuse myself, or my brother, for that is contrary to charity: or where be mine accusers, let them stand forth? or if you have any thing against me, prove it by witnesses: with such like a number. For when the Prophet jeremy 1 jerem. 38. vers. 14, 15. was charged by the King in a generality, to answer that which he would ask him; he stood not upon refusal, till he might know what it was, but made this doubt only, whether if he told truth, the King would not kill him. which when the King had promised he would not, than jeremy condescended to answer what he would demand of him. signifying thereby to us, that being asked by a Magistrate, if it were not a matter capital unto him, he ought, and would discover it. If this were done upon an oath, then must we do the like, in the like case also. If he did yield to answer unto Interrogatories uncertain, and unknown unto him both in generality, and also in particularity, and yet thought himself bound to say the truth without oath: then much the rather would he have done it unto those, whereof the quality he should have known afore hand; but especially upon his oath. And so ought we, being so deeply charged. Yet these questions so generally to be propounded unto him, might have been of matters, both criminal and very penal unto himself, and unto others also. When the same 2 jerem. 37. vers. 13. & 14. Prophet was charged, with a particular crime, of intended defection and fleeing to the Chaldeans, by Irijah a chief officer, sitting judicially in the gate of Benjamin: he did not refuse directly to answer, by putting him off to prove it by witnesses, or by any such like dilatory: but answereth roundly, and truly, in the very contradictory (as it were joining issue with him) and sayeth: That is false, I flee not to the Chaldeans. Now, if the Prophet had been guilty, would he have falsely denied it, or have made any shifts to avoid it, think ye? or would he say untruly, being unsworne, more than being sworn? I think no man will so imagine of the holy Prophet. and therefore (by this example) a Magistrate in authority or a superior, must be directly dealt with, in questions pertinent, that he shall ask; whether upon oath, or without oath; so far as godly Laws do require, albeit the matter be criminal, (as it was in this case) unto the party Interrogated. When 3 2. Reg. ca 5. Elisha the Prophet (upon none other detection but divine revelation) entered to the examination of Gehazi his servant, touching a criminal matter; and that without any accuser formal, or representative, besides himself: did he not require an answer of him; and was not the servant (before God) bond to answer him, and that truly? If here it be said, that he ministered none oath unto him, it is true: yet was it no more lawful for Gehazi being his servant, and under his authority, to deny it by falsehood, (as he did) or to have answered not directly, or else nothing at all; than it would have been for him, to have slatly forsworn it. So that every one in authority, that requireth an answer of a guilty person (being under his power) in a matter of crime: must needs either drive him to a lie, which 1 Sapient. 1. slayeth the soul; or else to accuse himself of a matter dishonest, as these men speak, and gainsay. When Peter, and john 2 Act. 4. V 7. & 8 were examined in the great Council upon this Interrogatory; By what power, or in what name they had done that miracle? Peter full of the holy Ghost, answered plainly and truly; though (happily) it might have been capital unto him. Then what are they full of, who being required by authority to answer unto matters of no such danger, unto them; do nevertheless refuse to answer directly, or who will not answer at all? for upon a man's own confession judicial, though he be not sworn, he may aswell be convicted, as if he had answered upon his oath. In the proceeding 3 Act. 6. vers. 11. against Saint Stephen, there were (in truth) none Accusers, but those, who (by subornation) denounced him to the Priests, and who are twice 4 Ibid. V 13. & ca 7. vers. 58. called witnesses, because they deposed against him. yet when the high Priest asked him 5 Act. ca 7. vers. 1. etc. thus: Are these things so? Stephen refused not to make answer, and that truly; howbeit, they made his Apology to be capital unto him. Likewise when the 6 Act. 21. vers. 38. & 39 Captain asked of Saint Paul, whether he were not that Egyptian, which had made a sedition etc. Paul answered directly, and slatly denied it. Likewise the same Saint Paul 7 Act. c. 24, 25. & 26. in all his other several conventing before authority, mentioned in the Acts (even at the suit & accusation of a party) refused not particularly, & truly to answer to all that was objected, by confessing some, & denying other some of the crimes, by his adversaries, and accusers imputed to him. But if he had learned the ready way that is now devised, not only to answer accusers objections, but the Magistrates own questions: he might have wiped them off quickly (without such long Apologies) and have willed them only to prove what they said: yet neither (expressly) affirming, nor denying any thing. No doubt, though the Apostle, or any of those other godly men mentioned, had been guilty of any thing: yet being duly asked, they would not have stood mute, nor have answered doubtfully, neither would they have affirmed more without it, than they would have done upon their oaths, if the course of the proceeding had admitted it, and that their oaths had been required. It is therefore well 1 Chromatius in 5. Matth. facit. can. 36. council. Tolet. quart. said by an ancient, and learned Writer thus: Dominus inter juramentum, & loquelam nostram, nullam vult esse differentiam: God makes no difference betwixt our speech, whether it be without oath, or upon our oath. And 2 Thom. 2. secundae. qu. 69. art. 1. Aquinas saith; if he which is brought into question, and interrogated by the judge without his oath, shall answer untruly, that therein he sinneth deadly. The old Christians in the Primitive Church, were as far off from these shifts of answering unto most dangerous Interrogatories demanded of them, even by heathen Magistrates; as they were from all untrue answers thereunto. which point I mind to make apparent out of such of the Ancient Fathers especially, as be avouched by the Notegatherer, for condemnation of these examinations, and of exacting men to confess their own crimes. so that hereby it may be the better judged, how slenderly their writings by him quoted, do serve this turn. Tertullian herein is very plentiful, especially in his Book called Apologeticon: yet is he quoted by the Notegatherer, for a condemner of examining and interrogating men, touching their own crimes, of which sort the very profession of Christianity was then accounted to be. A Christian ( 3 Tertull. in Apolog. cap: 1. saith he) if he be indited, or denounced to the Magistrate, he rejoiceth in it: if he be accused, he propoundeth no defence, when he is interrogated, he most willingly confesseth: and when he is condemned, he giveth them, or God thanks. By his complaint in the same place, for that Christians were not dealt with as other offenders were, he both showeth, what then was practised in Criminal proceed, by the laws Civil: and also, his own good liking thereof. At the christians hands ( 1 Tertul. ibidem. saith he) that only is expected which sufficeth to stir up the people's hatred against them; that is, an only confession of the name of a Christian, not an examination of his crime: whereas if you hold cognisance against any offender, as a mansleaer, sacrilegious, incestuous person, or public enemy to the state, (these being usual praises given unto us Christians) you do not pronounce sentence upon the bare confession of the name of the crime: but you inquire also of the quality of the fact, the number, place, manner, time privies, and partners. But concerning us, you observe no such matter, which you ought no less to do, then with those others. And again: 2 Ibid. Apolog. cap. 7. We are still said to be murderers of infants, and incestuous persons: yet you have no care to find that out, which of so long time hath been said of us. Therefore either get it out of us, if ye believe it: or else refuse to believe it, because you cannot find it to be so. Then 3 Ibidem. followeth this: You command Christians by a far stranger kind of torture, viz. not that they should declare, what they do commit: but that they should deny themselves to be the men, which in deed they are. Which urging of Christians to declare what they had committed, that Tertullian doth not disallow, if the Magistrates would have taken that course with them, appeareth also by 4 Tertull. Apo log. cap. 3. another place. Whatsoever we are charged (saith he) to have committed secretly, though by others the same be committed openly: yet we will answer it point by point, or every jot; yea even that, for which we are reputed as pestilent persons, as vain, and as men, worthy to be scorned and condemned by others. Saint Augustine also in his very book alleged by the Notegatherer, doth plainly establish and allow of Oaths taken concerning a man's own offences, being in deed such also in their own nature. If perhaps (saith he) 5 August. serm. 28. de verbis Apostol. cap. 6. thine oath be urged, (meaning a decisory oath be exacted of thee by a private person) say not, I will not swear: for it cometh of evil which thou dost, but yet of his evil, that doth exact it of thee. Insomuch as thou hast none other means but thine oath, to purge, and clear thyself, of the matter in handling. But it may (perhaps) be said, that the oath here meant, may be aswell in a cause pecuniary, as criminal: hear therefore his judgement in that 1 August. ibid. cap. 10. pointalso. When one that is in deed a wicked thief (saith he) heareth another, who knoweth not whether he have committed that theft, say unto him; swear, whether thou hast stolen it or not: if then he shall answer and say, it is against my conscience, for a Christian may not swear: then watch me such a fellow; turn from him but a little; let that matter alone which thou wast then in hand with; talk with him, of other by-matters: and (no doubt) thou shalt take him swearing a thousand times: who (under colour of godliness) refused afore, but to take one oath. And the same Father again, touching the self same crime of theft: 2 August. ep. 137. We knew (saith he) at Milan in that place where the memory of Saints is celebrated, and whereas devils very strangely, and terribly do confess and discover themselves: that a certain thief that came to that place, with purpose even there to forswear the theft, and so to deceive him, that put him to the oath: yet was compelled to confess the theft, and to restore again the things stolen. both which places do plainly show, that even for matter of theft, (a crime not simply capital by the Civil laws which there ruled) it was both lawful, and usual to tender oaths. And the same father speaking of those who denounce other men's crimes to have them reform; he noteth unto us, the use of oaths therein at that time: 3 August. in qu. Levitic. In denouncing others (saith he) this moderation is always to be used by us, that we relate it unto such, which may rather help then hurt him, (in case the party shall swear falsely) either by correcting him, or by deprecation to God for him: so that he will by confessing his fault, apply this remedy unto himself. Saint chrysostom albeit he adviseth men (as unto the better) rather to lose a piece of their money, then to tender a decisory oath, or wager of law unto him, whom they see forward enough to swear, though perhaps it be falsely: yet doth he not deny, but they also might lawfully do it: and withal testifieth, that such necessary oath was in those times imposed to exact men's confessions, whether they had stolen some certain thing or not. It is 4 Ch●…ysost. Homil. 16. ad pop. Antioch. better (saith he) to lose your money, then to tender that oath to your neighbours: for to remit this when you might, is no small honour given to God. For when thou shalt say to God, that for his glory I have not adjured, or urged an oath of him, who had done naughtily by stealing from me: for such honour, God will give thee great meed. By the which sayings of the said ancient fathers it is made manifest: that oaths, touching not only matters supposed to be offences and crimes; were, and might then be imposed upon defendants, by Magistrates: but also touching mere crimes in their own nature, & that upon the Instance of a plaintiff particularly interessed, but in his goods, and chattels. And yet be all these places (almost) quoted by the Notegatherer, in condemnation of such oath: so hard was his hap to heap up such store of places out of Authors, which make directly against his own intention. This sort of oath was not only thus allowed in the old church: but commanded to be put in ure (as lawful and consonant unto God's word) against persons convented, and had in suspicion for some offence, even by the discipline of one Church; which the most, and hottest oppugners of this oath, do reckon to be best, yea, and (almost) to be the only reformation, that may rightly be so called. For in the discipline of France concluded of in the Nationall Synods there, holden in the years 1559. 61. 63. and 65. it was 1 Tit. Eccles. Senate or Consistory art. 12. thus decreed: the faithful may be constrained by the consistory to tell the truth; so far forth as it derogateth nothing, from the authority of the Magistrate. They may be constrained, sayeth that discipline: but there is no compulsion but either Civil, which they will not arrogate to themselves, as torture, or racking, imprisoning, fining, etc. or else by the party's oath, which upon pain of perjury, if he once swear, or upon pain of conviction, if he will not; doth, as it were, constrain a man to say truth. And that an oath is meant (indeed) by this Canon, of the French Churches; we are taught both by the history of Camperell a Minister of Geneva: and also by that, of those who danced in one widow Balthasar's house, there. For by this City's example and model, the French discipline, was (almost wholly) plotted. For as I have touched (howbeit to other purposes in the second part of this Apology) the said Camperell was 2 Inter epistola●… Caluin. in fol. pag. 421. & 422. vide 2. part. pag. 91. appointed by the consistory of elders there, to be examined upon his oath, touching 3. Interrogatories; whereof also two concerned what he had in his very purpose, and intention of mind. The dancers (because at first they denied it) were 1 Calu. Farello. pag. 64. epistol. in fol. vide 2. part. pag. 139. put to their corporal oaths to declare the whole truth of that merriment. But that all Dancing is holden there as an offence, and grievous Crime; appeareth by the Ordonnances of Geneva; and by the very last frame of Discipline concluded 1571. by the French Churches. So that we may conclude this place, that this oath in a Criminal matter, tendered by one in authority, being warranted by the politic laws of the Realm, or the Church: ought not to be refused, except there were some direct Prohibition thereof, by the law of God. But least of all, may it (without the wilful sin of Disobedience against the Ordinance of God) be refused by any, being so manifoldly thus approved unto us even positively; by the holy Scriptures, by the ancient Fathers, and by other Modern Churches reform, in every of the points afore challenged. CHAP. XII. An answer to such objections, as be pretended to be gathered from Divinity, Divines, and from the Examples of godly men; against ministering oaths unto parties, in matters of their own crimes. AFter so many, and (to mine understanding) plain proofs made out of the word of God, with some testimonies of the practice, and allowance of this oath in the Primitive Church: it may be marveled (perhaps) that any thing (as from Divinity) should to the contrary be alleged. Nevertheless, besides four discrepant opinions, one of them varying from another, & holden by the Innovators about this matter, howbeit, each of them tending either to the abridging, or else to the whole condemnation of this oath; (which four come to be discussed in the next Chapter) there be also sundry other objections made against it, which are here to be considered. Whereof some are pretended to be gathered out of the word of God; and some are taken from Divines. And of these later sort, sundry are by way of Allegation out of their writings; and some others are brought from their Examples. Of those reasons that are pretended to be drawn from the word of God, I place that of the Treatisour in the first place, as most general; where he sayeth; that by this oath God's sacredinstitution is greatly perverted, and forced to another end and purpose, than he in his divine wisdom hath appointed. And the Notegatherer saith, it is contrary to God's word. But why, and how it should be found contrary to God's institution in his word, otherwise then is in part afore showed, in mine Epistle to the Reader, and in other places of this Apology, as occasion hath been offered; they bring no proof at all. And yet without any better underpropping, the Treatisour affirmeth this; even for proof of another point; viz. that by this oath, no due honour can be given to God, but that he is thereby rather dishonoured. In deed if it were contrary to God's institution; then, no doubt, God is thereby dishonoured. For having laid down, that the true use and end of an oath is, that due honour may be given unto God, the truth confirmed, justice maintained, innocency protected, and an end had of strife, and controversy: he thereupon avoucheth his said former assertion. It seemeth to me, that all these ends cannot concur, and meet in every oath, though otherwise it will be yielded most lawful. For in case the party himself, by an assertory oath do untruly swear (being guilty of some crime or offence) or whether witnesses shall truly swear touching the said parties guiltiness: it is most clear, that (by such oaths) none innocency is protected, but nocencie either more heaped up upon the party himself; or else discovered by the witnesses. Besides, when Abraham's servant swore to him, that he would not take a wife for his son, from amongst the Infidels of other nations: Or when a man sweareth allegiance, homage, or fealty: or faithful service and obedience to his general, or taketh oath of her majesties supremacy, and such like: what strife and controversy (I pray) do these make any end of? Yea, or what innocency is thereby protected? seeing these oaths be rather for retaining the party in his innocency, if he stand (afore) well affected: or else do serve, for discovery o his hollow, and treacherous heart; in case he shall make refufall of them. But let us see how he proveth; that the oath which we treat of, answereth not unto the other ends, which are by himself propounded. The truth in controversy (he saith) is not thereby confirmed, since there is none issue joined in this case, between parties affirming and denying. As if the truth of no matter need to be confirmed by oath, saving where there is first a judicial controversy. Yet he himself speaking afore of the ends of an oath, made no mention of this truth in controversy; unless he will say, that he confounded the second of these ends with the last. Furthermore, what controversy was there betwixt Abraham, and his servant: or betwixt one that tendereth, and a justice of peace, or other, that taketh an oath to the Supremacy? Nevertheless, it hath been often declared, that the very means, or inducements which open way to Enquirie in proceeding of Office; are as a party that chargeth the other; and so a judicial controversy dependeth. And that there need not to be any other formal party always in judgement, is many ways showed in the second part, even by 1 Vide part. 2. ca 15. criminal proceed mentioned in Scripture. yea what Scripture is there to require always a party promovent, as of necessity? Thirdly, there is even here a kind of contestatio litis, or joining of issue in the proceeding of mere Office: viz. betwixt the denunciation, fame, or some other inducement as it were affirming, and charging: and the party's denial, that is convented. which point answereth also to that other argument of his, by which he would prove; that justice thereby is not maintained, because there be not three persons in judgement. Furthermore, if such justice and judicial course by three, were necessary in every lawful oath, by the word of God: then should all promissory oaths be utterly unlawful. In which, there be but the party promising, and he to whom the promise is made: yet not judicially, for the most part. He goeth further, and to prove that an end of controversy cannot ensue upon such oath; he useth (in effect) his next precedent reason, viz. because no quarrel, nor complaint is anyway depending. First there is a complaint made, and depending, before such oath be tendered; and I have showed how. Secondly, if there were not, yet an end of controversy might thereupon ensue, in that the party burdened by presumptions; might (perhaps) thereupon be cleared and dismissed; and so the matter in question, ended. Thirdly, do not the Lords of the Counsel, and do not judges and justices of Peace (oftentimes) lawfully examine sometimes parties only, and sometimes witnesses; even where no judicial suit dependeth? Lastly, he mistaketh the place in the Epistle to the Hebrews; if he imagine that upon any single man's oath taken, every controversy, should (thereby) presently be decided and determine, according to that oath: which matter resteth to be showed * Cap. huius part. ultimo. hereafter. He sayeth also, that it rather maketh more contention, then endeth controversy. Indeed, he, or such other mislikers have thereupon (of very late time) taken occasion to make great stirs and contentions in this Church, and common weal. But assuredly, this oath (otherwise) tendeth to ending of matters doubtful, 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 known and entered into, afore any oath be tendered. Yet Innocents' hereby (saith he) are not cleared, since there is no complaint or accusation, judicially exhibited. as though a man privately charged with some offence towards his neighbour; may not also privately clear, and approve his innocency, and integrity unto him, by his oath; except there were first a public judicial complaint, or accusation presented up betwixt them. Besides, I have afore showed, that many oaths may lawfully be tendered and taken, where none end of clearing Innocents', but rather of charging nocents, is propounded. Thirdly, it may fall out, that by such oath, Innocents' shallbe cleared; in case no pregnant proof shall afterward be brought. But if all these ends must concur unto every lawful oath; how is the Treatisour constant with himself: at least, how doth his former argument hold, whereby he would confute these oaths, for that they were neither (saith he) for assurance of duty, covenant, contract, or promise, neither yet for confirmation of truth in controversy? for if any one of these last recited will serve, to maintain the lawfulness of an oath; then what need all the other ends jointly? & if some one of these must (necessarily) be found in every lawful oath; then to what purpose serve those other several ends of oaths, here not required, nor mentioned: viz. that honour may be given to God, innocency protected, and justice maintained? Seeing there may be assurance of duty, covenant, contract, or promise given, without any seeking to glorify God thereby: as heathens oaths of obedience to their superiors; & any other men's oaths, for assurance of promises, etc. without respect to protection of innocency, and without such judicial course; namely, as may happen in private commerce, betwixt man & man. From these reasons by him simply propounded; I will now come to his reasons, by way of comparison. He condemneth this oath by comparing it to Herod's oath; that as that was general, to give whatsoever the damsel would ask; so these are to answer, whatsoever shall be demanded. This his imputation unto Ecclesiastical courts of tendering such general oaths, which he so often, and almost only beateth upon, to the intent to give a better lustre to the weakness of the cause he defendeth: I have (as several occasions have been given) declared to be a mere slander. Nevertheless, it was not the generality of Herod's oath which was condemned. For the prophet jeremy made unto the king, as general a promise of answering what he would demand of him; as Herod made of giving, unto the dancing damsel. But it was the rash unadvisedness of it, rising upon a carnal delight: and when he had made it, a more unlawful 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 answers unto objections; which are supposed may be made for establishing general oaths, or other more particular, yet in causes criminal to the party examined. The first of which; is that of 1 Ioann. 18. v. 19 20. 21. the high Priests, who examined Christ of his disciples and doctrine: & he put them of, to those that heard him: saying, he had spoken nothing in secret. But, neither answering to interrogatories being so general, as this was, nor general oaths are defended. And if they were, yet it is not the example of the high Priest, refelled by Christ, that any would allege; as he pleasantly doth insinuate, to burden them, and the cause with the greater weight of envy, and prejudice. But touching this objection & the true understanding thereof, more fully in the next Chapter, as in a more fit place. Touching the next supposed objection, (he saith) It is not any sufficient allegation to say; that the party deponent is no further bound to answer, than the law requireth, how general soever his oath be; since it is not safe for the conscience of such a deponent, to stand upon terms, and questions; how far by law, and by what law, he is bound to answer. Not safe for his conscience, & c? is not this plainly and directly to leave it unto the liberty, & free choice of each deponent, in every cause whatsoever, to refuse to take any oath? then which, what can give greater strength unto that detestable error of Anabaptism? for if it be not safe for his conscience, to put it upon the question, how far by law he is bound: then may, and also ought the Anabaptist, and every other fantastic, to be a judge for himself; whether to take any oath at all, or only so far, and in what cause himself listeth, under pretence of his conscience. In that he saith, how far by law, etc. it seemeth to me, that he is in doubt; both, that God's law and all the laws of the land are against the refusal of such oath; and yet that he would (nevertheless) arm all deponents against taking this oath, because it may not be done (forsooth) with a safe conscience. In that he further addeth, and by what law; it is probable, he would thereby insinuate; that howsoever it will not be thought good by many of them to be resused, when it shallbe 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, unto the deponents conscience. Assuredly, it is most strange, that men pretending such piety, and sincerity; will teach others thus to dally, with laws, and with their own consciences. as if the thing were godly enough to be exacted in one court; but perilous to conscience in another Court: albeit as well authorised unto the one, as it is unto the other. Insomuch, as here he yieldeth, that this condition of not being bound by any such oath taken further than law requireth; is observed, or understood, in ministering the oaths which he impugneth: doth he not thereby plainly discover himself, to be an oppugner of that, which is but by law urged? and an encourager of others to oppose themselves against laws? or else it must follow, that none that be in authority do know the law therein, besides himself; or at least will not deliver it truly. doth he not also therein imply, that (in some cases) the laws allow of such oaths; and that his charge, of ministering oaths that are general, unto all a man's thoughts, words and deeds, is a plain slander? insomuch as no law requireth that, and yet the takers of this oath; are no further bound, than the law itself bindeth. And lastly it appeareth hereby, if these oaths (restrained but unto that which law requires) be nevertheless unjust, cruel, ungodly, & tyrannical. that then the laws of this realm establishing them, must needs endure, his like hard, untrue, and disloyal censure. It hath been often, and no less truly said; that none but jesuits, Seminary priests, & such like obstinate Papists have refused this oath in her majesties time, or have charged it to be ungodly; until these new reforming Innovators did start up: & that both the sorts of them do build upon the self same grounds of argument. In answer of this, he saith; that by the ancient & godly writing entitled, The prayer, and complaint of the Ploughman, it appeareth; that this kind of general oaths, and examinations ex officio mero were not first misliked by jesuits, and Seminary Priests; and from them derived to others, that mislike government, and would bring the Church to an Anarchy; as the world hath been borne in hand. For general oaths, we stand not: but who first misliked examination ex officio mero, or which of these two sorts of mislikers have trodden in the others steps by imitation; is not so material: as with what truth, or soundness of reason, it is misliked by either of them. I have not the Ploughman's book to peruse, what is (indeed) there said here of; neither greatly skilleth it, though he were (perhaps) a good divine, disguised under a ploughman's title and style. If he had used any reason for his saying, I doubt not but the Treatisour would have enforced it. But it followeth not, that whatsoever in elder times hath been by some one, (though otherwise learned, & godly) misliked (happily) upon some particular occasion, or upon private pique of humour: that thereupon the thing itself should be simply condemned. and if the condemnation by one, have any such great force; I hope the allowance thereof by many, and the manifold reasons which commend the lawfulness, and necestie of it; will be of much more force, then one man's breath, and bare saying can be. Now follow the Notegatherers quotations of divines against this oath: how beit without any allegation set down. But first let us speak of those, which are from the ancient Fathers. In the treatise of 1 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 use of Adjuring; as in the book of 2 Num. 5. V 19 Numbers, and in the book 3 1. Reg. 2. V 16. of Kings, but I am of opinion, that a man which will live according to the Gospel, ought not to adjure another. for not to adjure at all, is like to that commandment of the Lord himself in the gospel; thou shalt not swear at all. And again, it had not been seemly, that the Lord, upon the adjuration of the high priest, should have answered him, as though he had been thereunto compelled against his own will: and therefore he neither denied himself to be the Christ the son of God, nor yet plainly confessed it. But if here by adjuring be meant all urging of any other to swear in what cause soever, whether it be by a Magistrate, or by a private person; for a private, or a public cause; in judgement, or out of judgement, as the first of them, by the generality of the words may import: then doth this saying condemn all oaths simply (other than such as be voluntarily taken) no less than it doth those oaths, that are imposed, touching a man's own crime, whereof we speak. so that, in such an understanding, the Notegatherer himself (I trust) will not allow it: lest both his own, and the judgement also that he imputeth to Origen; be both touched, with a spice of Anabaptism. Therefore for clearing of Origen, and also some other of the fathers (hereafter by occasion of his quotations to be alleged) from so foul an error; and from contrariety also unto themselves in other places: the generality of certain their speeches, as it were in an absolute condemnation of oaths, as might seem at first sight; must be all of them restrained, either unto accustomable vain swearing, which men use in common talk; or else to the exacting and driving of defendants, to swear, & to wage their law by necessary decisory, and judicial oaths, for a trifling piece of money, or goods: notwithstanding, the plaintiff perfectly knoweth asorehand, that if the defendant take it, he is thereby induced into perjury: Or lastly unto rash, & unadvised oaths, or not being in the takers power to perform. That all their speeches seeming absolutely to condemn all oaths, ought none otherwise to be understood; you shall have clear testimonies from themselves, even in those very places (for the most part) that be quoted by the Notegatherer. So far is it of, 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 divers of such their invectives, are directed against vain, and customable swearing in common talk. Saint 1 Aug. Ser. de decoll. S. joan. B. p. Ser. 10. Augustine sayeth, it is no sin to swear truly: but in that it is agreevous sin to swear that which is false; no doubt he is far from the sin of perjury, who sweareth not at all. Saint chrysostom, who in every of his Homilies (almost) to the people of Antioch, is most earnest against swearing; insomuch as in one place he 2 Chrys. Homil. 15 add pop. Antioch. saith, the nature of an oath is to pierce further, and more dangerously, than a sword: yet he showeth how his speeches thereof (in part) are to be expounded; and that he doth not condemn all oaths simply. which absurdity, the Notegatherer must first yield unto; before he can make one drop of that his own thick mist of quotations, to serve the turn that he intendeth. It is no mastery (saith 3 Chrys. Homil. 4. in sine, ad pop. Antioch. chrysostom) to overcome the custom of swearing, if we will but afford a little endeavour to that end. And a little afore that thus: Cast out of your mouths that wicked custom of swearing. And elsewhere, to like purpose: an oath (saith he) hath this evil in it, that whether it be broken, or kept, it maketh a man subject to punishment. But that he here meaneth only the private custom of swearing; appeareth by the reason added; for 4 Idem. hom. 14. the continual swearer, sometimes willingly, sometimes unwillingly; sometimes when he knoweth it, & sometimes when he knoweth it not; when he speaketh in earnest, and when he speaketh in jest; & ofientimes being carried away by anger, or other perturbation; can not choose but for swear himself withal. To the second point, viz. that their meaning elsewhere is of waging law, by judicial and decisory oaths, tendered by private men abou●… debts, and chattels, when by such oath, the party to swear is most likely to be forsworn: First 5 Athan de pass. & crace Dom. col. 3. Athanasius saith; Let your yea be yea, and your nay nay: thus far we that be Christians may confirm our speeches: but let us not proceed so far as to fly unto oaths, and to call God unto witness, for corruptible money's sake. And in that sense is it to be taken, which he saith a little after: men do 6 Athan. Ibidem. not swear only for worldly business sake, ●…ut rather to confirm truth; and to show that which they say to be void of falsehood. therefore if he that sweareth be true, and to be trusted, what need is there of his oath: but if he be not to be trusted, why do we commit such wickedness, as that for wretched, and mortal men's cause, we should call God, who is above all, unto witness? S. 1 Chry. Hom. 15. ad pop. Antioch. chrysostom also saith thus in this behalf: Let us not drive our brethren to an oath. O man, dost thou know what thou dost herein? in that thou makest him swear upon the holy table, where Christ offered up, is laid: wilt thou even there sacrifice thy brother? And again, it 2 Idem. hom. 16. is better that we lost our money, then to offer our brother an oath, that he had it not from us, or owes it not unto us. Likewise, if a man say unto me (saith 3 Chrys. hom. 26. ad pop. Antioch. he) take thine oath: let him hear, that Christ hath forbidden it; and so I shall not need to swear. But how this is meant by him, is declared in the same Homily: but 4 Ibid. hom. 26. you will say unto me (saith he) there be many, which if they be not sworn, will not stick to defraud me of my money: yet will they not deny it upon their oaths. Man, thou deceivest thyself; for he that is used to steal, and to injury his neighbour, will not make doubt (for the most part) to for swear himself. Where, we may note, that albeit chrysostom dissuadeth plainetifes from it; yet oaths in those days lawfully were tendered to such, as were sup●…osed to have stolen other men's goods. Which kind of oath for stolen goods decisorily, or judicially tendered; that chrysostom did not simply condemn; may be gathered by his words then next following. But 5 Hom. 26. ad pop. Antioch. what should I speak (saith he) of such oaths, and omit judicial oaths, that are used in courts, for which so much can not be said: for there, even for a matter of ten half pence; oaths are taken, and perjuries also be committed. And therefore a little after; Lo, I say unto you and protest, that ye reform these superfluous judicial oaths, and bring rather all such matters unto me. Saint 6 Aug. serm. altero viz. 11. de decollat. sanct. 10. han. Bapt. Augustine's allowance (in some sort) of the like oaths, is also manifest. If any (saith he) shall provoke thee to swear, as (happily) supposing he may thereby be satisfied, if thou shalt swear touching such a matter which he suspecteth thou hast committed, and (perhaps) thou hast not done it: if in this case (I say) thou shalt swear, to remove that false suspicion from him, thou dost not sin, as he doth who provoked thee. But an other more full determination of Saint Augustine, touching that which is meant to be condemned in imposing oaths in private causes; seems to me, to be apt, & very sound. In him that exacteth an 1 Aug serm 28. de verbis Domini. oath (saith he) there is great difference, whether he know not, that the other will swear false, or indeed knoweth that he wil For if he know not, and therefore do say, swear unto me: it is not sin then to swear for his satisfaction, howbeit it is an human weakness in the exacter. But if the case be so, that he which exacteth it, knoweth the other party to have done it; and yet will compel him to swear, who is ready thereupon to swear falsely; then is the exacter a very murderer. for though the one do murder his own soul, by his perjury: yet the other that so exacted it, did * Manum interficien: is impressit, & pressit. thrust forward, and harden the said murderers hand. Touching the third, and last point, viz. if their writings by him quoted against oaths, be not directed against them in any of the 2. former respects: than it is, in regard of the unadvisedness of such oaths taken, or for that the matter whereof the party swore, was not in his own power to perform. This may be showed by a place yet unexamined, which he quoted out of chrysostom. For he 2 Chrys. hom. 14. ad pop. Antioch. saith, Not only those who forswear, but also those, that impose such necessity of perjury upon others, & those who swear, are guilty of the like crimes, That this is spoken of rash oaths, not lying in their power to perform, and imposed also by private persons, his words following do show. In shops (saith he) in stage-plays, yeathe Artificer of his apprentice, the Schoolmaster of his scholar, the Mistress of her maid servant, do now adays exact oaths, for performing of their task enjoined. And Saint 3 Ambros. in psal. 118. ser. 14. col. 4. Ambrose in the place quoted, speaketh to none other purpose. for writing upon these words, I have sworn, and have purposed to keep the judgements of thy righteousness, saith thus: No man swears well, but he that may know what he swears: to swear then is the judgement of knowledge, and the witness of the conscience, etc. have light, that is the knowledge of the truth afore thee, when thou disposest thyself to take an oath, so shall not the bond thereof hurt thee. The Lord, who came to teach the young ones, to instruct novices, and to confirm the perfect; saith in the Gospel, swear not at all: because he spoke to those, that were weak. to be short, he spoke not this to the Apostles apart, but to the multitudes. for he therefore would not have thee to swear, lest thou for swear etc. and a little afterward thus: Fellow not therefore any man's example in swearing, if it lie not in thy power to observe, and fulfil what thou swearest. But the Notegatherer willeth us also (for this purpose) to see an example of chrysostom, refusing the oath (as he speaketh) and thereto quoteth two Ecclesiasticallhistories. That 1 Sozom. l. 4. c. 17 which is found in Sozomen, is so far from noting Chrysostoms' refusal of an oath, in respect it concerned some crime imputed to himself; that there is not so much as mention of an oath, nor of any particular crime. For there is declared only, how the Synod under Theophi●…us cited chrysostom to appear. and that he sent unto them a Bishop signifying; that he refused not to be judged: but that he was ready, (so he might know who accused him, and of what crime) to defend himself; yet always provided, that it should be in a more ample Synod then that was. for he was not (he said) so foolish, to endure them to be his judges, who were his manifest enemies. The two Chapters by him also 2 Tripartit. hist. li. 10. c. 14. & 37 quoted out of the Tripartite history, have no more colour than the other, of Chrysostom's refusal of an oath. for none oath is mentioned at all in either of them, much less to have been ministered, and therefore none could be refused by him. The first of them containeth, the return, and calling home of chrysostom forth of banishment, and the particular occasion of the tumult that thereupon ensued. For his enemies being incensed against him, for that he preached to the people, they sought to depose him from his archbishopric, upon colour that he had ordained one Heraclides, whom they (though in his absence) accused to have caused certain to be whipped, and carried about bound in chains thorough Ephesus. so that when Chrysostom's friends desired to have a more due course of proceeding used in accusing Heraclides; which the faction of Theophilus of Alexandria withstood; there fell out thereupon, betwixt the two factions great bloodshed, and some murder. The second of these 2. places showeth, how when Chrysostoms' accusers were much afraid, lest (to their great peril) he should be acquitted: yet his partial judges were content to condemn him: only upon pretence; that without the decree of a Synod, he had (being indeed disorderly afore suspended) taken upon him to sit in the Episcopal chair. These two points (I assure you) are in mine understanding the nearest in any of those chapters; to that purpose, for which they are brought, in which respect, I am ashamed, that we which profess the gospel, should (by perturbation) so far be carried: as either not to discern, that no refusal of oath can hence be gathered, or if we will understand it; should so untruly, & frivolously by number, & not by weight; quote places that look nothing that way. Of Gregory's writing upon the book of Kings (which he also quoteth) I find no mention in my book. But I find it noted, that he writ such, & others also, which were burnt after his death upon emulation, as johannes Diaconus in Gregory's life, complaineth. His other quotation out of Gregory, toucheth not this matter of oath, and is answered elsewhere. And so what here, and what in other places afore (as they fell in most fitly) I have answered (I trust) althe Notegatherers quotations taken out of the ancient Fathers, and other old Writers. Whereby (I hope) is justified that which I writ in the epistle to the Reader; that most of them that pertain to this matter of oaths; may seem to have been collected together, against all taking of oaths whatsoever (though being truly understood as the same places do expound, no such matter followeth thereon) rather than to make any show against oaths in criminal causes; which some of those places do (in truth, as you have heard) plainly establish, and none do condemn or disallow. And it appeareth likewise, that they can no way be wretched out, to touch oaths in causes of crimes; except we expound them absolutely to condemn all oaths: which to impute unto those fathers were great injury and untruth; and yet no way advantageable to this cause. But both he and the Treatisor, do also assail us (in this point) with some allegations out of Canons, and later divines: as first, where 1 6. q. 5. c. quod autem. Gratian allegeth the said Gregory's authority, that no reason doth lay necessity of proof upon the defendant. What he imagineth may follow hereof to his purpose, I know not: except he think the defendants confession upon oath, being first burdened by fame, presentment, or such like; may be accounted for a proof, undertaken against himself. Besides, that place speaketh, when there is an accusation preferred; and then may not the defendant (by Law, or Canon) be examined of the crime upon his oath, unless it be at the time of his purgation. He likewise quoteth 2 2. q. 4. c. consuluisti. Gratian; alleging an epistle of Steven the fift, a Bishop of Rome. the words thereof, which he meaneth, I take it, are these: public crimes are committed to my judgement, upon the parties willing confession, or upon proof by witnesses: but those that are hidden, and unknown, are to be left to him, who only knoweth the hearts of the children of men. In that the confession (here spoken of) is required to be voluntary; perhaps he meant absolutely to infer; that no man may be urged (by his oath) to confess a crime. But what the matter was, and the circumstances, are first well to be weighed. The doubt there propounded, and to be answered, was this: When young infants are found dead in bed with their parents; whether the parents were to be put to the vulgar purgation, of enduring hot burning iron, or scalding water, thereby to t●…ye whether they had not oppessed, nor smothered them? And the answer is; that these kinds of vulgar purgation, are superstitious, and condemned by the Canons, as being a tempting of God: and then followeth that which is afore alleged. The case then being such; the parents might not (by law) be put to any purgation at all. For the vulgar aforesaid, is unlawful; and they could not be put to their Canonical purgation: insomuch as thereby 1 c. quotiens de purgat. Can. they should be sworn, touching the very truth of the matter, and that would induce anceps periurium: in which case an oath 2 L. Videamus. ff. de in litem iurando. may not be imposed. For if they should directly have sworn that they did not oppress, or smother their infant; in so great uncertainty thereof (as must needs be, whiles men be on sleep) it might happen: that thereby they should (in deed) be perjured; though not knowing certainly, whether they had so done or not. And 3 Archid. m. d. cap. consuluisti. nu. 2. Geminianus ibid. nu. 2. & 3. Praeposit. ibid. nu. 5. Interpreters do wholly agree, that this was the only reason, why an oath might not (in that case) be imposed: & not any regard which was had (simply) to condemn all urging of men, unto confession of their crimes. That which the Notegatherer 4 c. vlt. de purge. vulgari. allegeth out of the decretal Epistles only toucheth the condemnation of that vulgar purgation, in those times much used. We may read even in our own histories of a Q. mother in this land before that conquest; who being charged (by great presumptions) of incontinent life, with the then Bishop of Winchester: is said in the course of vulgar purgation to have cleared herself, by going barefooted and unhurt, over nine red-hotte ploughshares, if we may believe stories. Oflater Divines, he also quoteth Tyndall, in several places of his works. In the first of these, I take it these 1 Tyndall in 5. Matth. pag 208. words of Tyndal be meant: neither ought a judge (saith Tyndall) to compel a man to swear against himself, that he make him not sin and forswear. he yieldeth then (by implication) that in some cases a superior may compel his inferior to swear: and so much do his words next precedent import. Indeed we all confess, that where there is great & apparent probability, that the party is such a man, who will rather for swear, then confess a truth against himself; upon such a man, an oath should not be imposed: But where the penalty is not capital, nor of mutilation, nor none other particular strong presumption to induce such suspicion touching the party; and especially where he stands afore charged upon good, and probable grounds, to have (in deed) committed such a fact; there the law will not intend, or presume; but that he will make further discovery, rather than to be forsworn: quia nemo praesumitur immemor salutis aeternae, as afore hath been alleged. Albeit Tyndall seem in this place to insinuate (& that truly) that in some other cases, an inferior may be compelled to take an oath: Yet in the next place quoted, he taketh away all necessary oaths, and leaveth none but voluntary. whereby his judgement in this matter of oaths (though otherwise a godly martyr) is much lightened. No judge (saith he) ought to make a man swear 2 Tyndall in resp. ad Morum. pag. 309. against his will, for many inconveniences. If a man receive an office, he that putteth him in the room, aught to charge him to do it truly, and may, and happily aught, to take an oath of him. If a man offer himself to bear witness, the judge may, and of some (happily) ought to take an oath: but to compel a man to bear witness, he ought not. I would gladly hereupon ask a question of the Notegatherer (who presseth us with this man's judgement) whether he himself do (as the words lie) allow absolutely of this, and of other his writings; both concerning oaths and other matters? If he do not, but somewhere reject him; then must he give us leave also to leave him; and not to believe him; in case he condemn all necessary oaths imposed by Superiors upon inferiors, so well warranted unto us by Scripture, both in human, and in divine matters. But if Tyndall mean but hereby to disallow, absolute compulsion to take oaths in worldly matters, then may his speech be better accepted. For upon refusal thereof in these matters, the laws appoint not the parties to be tortured till he do it, which were an absolute compulsion: but either do punish his contumacy, and disobedience, to the example of others; or else do pronounce him pro confesso, which is but a causative compulsion. And if Tyndall be thought in his words (afore) to condemn also every causative or inducing compulsion: then doth he contrary himself. for in his own example of an oath given at taking of an office, there is this causative 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 causative compulsion in case he desire the office. but if he be unwilling to have such Office, and yet may have (as Tyndall saith) an oath imposed, than some oaths may be exacted, and all be not voluntary only. It is not safe, nor sound, to embrace without all choice, or difference, whatsoever any godly, or learned man hath holden. for being men, sometime they fail, and sometimes (through heat of contradiction) they have their affections like unto others. And there is no kind of men (I think) now living, who with greater facility, yea & disdain too; do shake off all learned writers authorities, not only new, but also of the oldest, (where they fit not their purposes) than such as now be the chiefest, and almost the only oppugners of this kind of oath; amongst those, who make profession of the Gospel. If this our plea (nevertheless) will not be accepted: I wish the Notegatherer would tell me, whether he also will allow of Tyndal's judgement in the points following, viz. though the 1 Obed. of 〈◊〉, Christian pag. 137. kings (saith he) by the fal●…hood of the Bishops and Abbots be sworn to defend the liberties of the Church: yet ought they not to keep their oaths, but to break them. then (in his judgement) not only they may, but they ought to break their oaths taken, for observance of Magna Charta, and other matters, at their Coronations. He elsewhere also writeth, 2 Tyndall. pag. ope●…m. 209. that the lie of David unto Achish king of Gath, whenhe had killed the people, & sacked the countries 3 1. San. 27. v. 10. of the Gesharites, Girsites, & Amalekites; was no sin in him: In that, to persuade a sick man, that bitter medicine is sweet, is charity. & no sin: And by the like 4 2. Sam. 17. v●… 7. etc. example of the dissimulation of Chushai. Furthermore tindal thus 1 Tind pag. 207. writeth: If a man go out of the country from his wife, & come not at a certain day to be prefixed, as within a year, or so; let his wife be free to marry where she wil And again, 2 Tin. pag. 208. If the woman depart causeless, and will not be reconciled; though she commit none adultery; the man ought (of right) to be free to marry again. And towards the end of his book of practice of Prelates, as it was first printed in octavo in a Dutch letter; he not only defendeth it to be lawful for a brother to marry his deceased brother's wife (dying without issue) albeit carnally known by him: but urgeth it vehemently, as a matter of necessity, and of God's moral law, at this day to be performed of all Christians. which (no doubt) he writ in hatred of king Henry the eight, and of his then marriage, with the Q. majesties mother. In which respect (I think) those who after gathered together, & printed his whole works; did leave out all that unsound disputation of his. But if the Notegatherer, or any other will say, they have good reason to dissent from him in those points: let them then permit it like wise unto us (in this behalf) upon no less reason; especially, if Tindal meant to condemn all oaths simply, which are not merely voluntary. From their allegations out of Canons, and later divines writings, I come to their examples. some whereof be urged positively, and some negatively, that is, where this oath was omitted. Of positive, that example of Sir john Oldecastell L. Cobham and martyr; mentioned by the Notegatherer, cometh here to be handled, for his mislike and refusal of this oath, as is pretended. Yet M. Fox 3 〈◊〉. Vol. pag. 666. 2. edit. mentioneth no such refusal of an oath by him, in respect it was criminal; but for that he would not be sworn in all things to submit himself to the Church, and so take what penance the Archbishop would enjoin him. The Notegatherer further sayeth, That many examples of like refusing might be showed out of the books 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 ready; it is likely would not have spared his pains herein, though in truth, it would have given small furtherance, or advantage to his cause. for vivendum est legibus, non exemplis: Every refusal of a matter by a godly man, cannot bring in an absolute condemnation thereof. But if those examples he could have brought, be like (as he saith) to that of Sir john Oldcastles, Philpot's, Cranmers, or lambert's: then are they not like to serve his turn; for none of them refused, in respect they were to be examined of matters criminal, as it cometh to be discussed hereafter. But he saith also, that all the late fiery Placarts in case of heresy, in France, Flanders, Germany, and Spain were by inquisition upon the party's oath, post accusationem, & denunciationem, so as the party knew the matter first. If he had showed this which he saith, to be true; and that oaths in case of heresy were not given in those countries to the defendants, to the contrary whereof we have direct evidence from writers of those nations: yet serveth it nothing at all to prove an unlawfulness in this oath, much less absolutely: for a non facto ad non ius, will prove but a sorry argument. And this answer may serve unto all his quotations touching examples of omission; as of William Swinderby, and others, which are brought by him to show, proceed to have been in England against Heretics, without exacting an oath. Besides, it is not the exacting of an oath in heresy, but in other crimes Ecclesiastical, that we do principally maintain: howsoever he do seem, rather to allow it in matter of faith, then in others of less 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 unto that of the (aforenamed) martyrs of England. And by this word first, he seemeth at unawares, to imply a confession, that they were nevertheless examined afterward by their oaths: howsoever in the self same sentence he deny it. Fourthly, if by the copulative which he puts betwixt accusation, and denunciation, he meaneth both them jointly together; then doth he affirm impossibilities: for they be divers courses of proceeding. Fifthly, the ground of his mislike, is rather upon the order of time, when the oath is ministered; then for the Criminal matter, which we speak of. Lastly, upon an accuser's instance, an oath cannot be ministered in any crime by the Civil law, which those Countries mentioned, do most follow; much less than upon an accusation of heresy. Furthermore, in that (he saith) no Martyr in Q. Mary's time was forced to an oath until the statute exofficio (so he calleth 2. H. 4. then revived for attaching of heretics) and the Pope's authority were restored: which authority is now abolished. It seemeth he would collect, that to minister an oath in a criminal cause is ungodly, as being only builded upon the Pope's authority. Indeed, if it were only so grounded; then were it no less impious in this Realm to build it upon the unlawful authority, than his other usurpations are. But there were none martyred, nor (I think) so much as examined of heresy, till that statute was established, viz. in the 1 1. & 2. Phil. & Mar. ca●…. An. 1554. Parliament begun 11. Novemb. & ended 16. januar. For the sentence against Rogers, who first of all was condemned to be burned; was 2 Fox. pag. 1030. 〈◊〉. edit. pronounced 19 januarie 1555. viz. the year after. Then what marvel is it, when as further than imprisonment, they were not dealt with, or examined: though an oath were not ministered to any of them? But that in any ordinary Ecclesiastical court, from the commingin of Q. Marry, till the end of that Parliament, wherein that statute was revived, such oath was not, for any other crimes tendered: is (I believe) over pregnant a Negative, then that it can be proved by him, or by any man. And therefore neither the examples of those who are pretended to have misliked it, nor the supposed omitting of it, unto some that were dealt with for heresy; do not, nor can serve to prove any unlawfulness, or ungodliness to be in such oath, as we defend. So that we may conclude, that our former reasons used to prove the lawfulness of it by God's word; do rest yet unshaken; notwithstanding any objections hitherto made to the contrary. CHAP. XIII. Four several opinions of the Innovators, against the parties taking of oath in criminal causes, with answers also unto their reasons, and objections. AGainst the ministering and taking of this oath by a man's own self; the Innovatours do also hold sundry opinions; and do make many other objections and arguments, meet to be viewed, and briefly, as may be, answered. It may not be looked for, that I should touch them all; because not many of them are come to mine hands; neither (if they were) will leisure serve, nor if it would serve, were it worth the while, they be so frivolous. but especially because their conceits, and opinions (in this behalf) are so manifold, so variable, and intricated with such contradictions one against another, and of the same man against himself; as (I do assure you) it is a work of more labour, to set down certainly, what they hold about this matter; then to confute them. But it is meet that errors should so be, viz. divided into many heads, one of them hissing against another: howsoever they be tied together by the tails like Samsons foxes, to set both Church & Common wealth on fire. So near as I can collect them, their opinions be of four sorts. The first is of those; who being required to take such oath, truly to answer the matters, whereof they be brought into question (the chief heads whereof, are also made known first unto them) will answer neither yea, nor nay, either touching the truth of the matters, or what they resolve to do, but only thus, viz. if you have matters against me that be manifest, then proceed to prove them by witnesses: if they be hidden, then tarry till the Lord come, who will 1 1. Cor. 4. V 5. lighten things that are hidden in darkness, and make the Counsels of the hearts manifest. And these (commonly) will call for an accuser. And if it be told them, that the common voice, a presentment, or other judicial denunciation, or the public interest etc. is their accuser, that brings them into question, then come they again to the first point, and bid their accusers, and their witnesses to come, and stand forth against them. This dealing, as it is most peremptory and frantic of all the rest, so it is most unreasonable and dangerous: for it tendeth to the taking away of all judicial courses, both criminal, and Civil. To what purpose should a man produce witnesses, before the defendant hath answered directly, what he confesseth, and what he denieth, and would have proved? Neither is this to deal sincerely, justly, and uprightly, as we would have others to deal with us. For we should speak the truth one to another, and not seek to cirumvent any, by cautels, and frustratory shifts; but least of all in matter of judgement: where, by law, and by the Magistrate (that is lex loquens) we are required, and be (in conscience) also bound to procure, that controversies doubtful, may be composed with least ado, and trouble. to the intent, that which is right and truth in every cause (expedient to be known) may quickly be known, and come to light. Such froward answers as this is, do rather put off the judge with contempt and disda●…e, then yield any good reason, why such oath should be refused. This pretended dilemma of theirs, hath many media or means, to make it easy to be dissolved. First, a crime may be so manifested, that the supposed offender becomes (thereby) noted, infamed and scandalous; and therefore fit to be inquired of; albeit happily the thing be done so covertly, or of his own nature be so hidden; as it cannot be exactly proved by witnesses. For wicked, and lewd persons make all provision that may be, that there may be no witnesses, of their wickedness. And therefore it is meet, that such (being probably touched) that witness instar omnium be used, and called on by them; who knoweth all things, & before whom the whole world stands as a 1 Apocal. 4. v. 6. sea of pure Crystal. Some examples of such crimes are showed in the eleventh Chapter, by the Scriptures. And what shall witnesses need, if the party himself will not deny it? Or what if the witnesses be not meet to be known at first, lest the party upon his oath, or otherwise, discover no more (when he once knoweth them) than he supposeth by them can be deposed? Or what if (at the parties first conventing) no witnesses be known, that can testify, but do come afterward unto the judges knowledge? Touching hidden crimes (if they be simply hidden, and in such sort, as is meant by that place of S. Paul, and by the like rules in law) it is very true; that they are not to be inquired after, by any Magistrate, neither is any man bound to reveal such. Therefore it may not be asked of any man (as was done in Popish shrift) what faults and sins he knoweth by himself. Such be the counsels, and secret thoughts of men's hearts, spoken of by Saint Paul in that place, and all actions also not come abroad at all, nor manifested, either by fame, or by other good presumptions, or evidences. For before they be (at least) so manifested, it is not of any possibility, to make enquiry or question after particular crimes, when they be not so much as supposed to be done. Concerning which crimes, what the law Ecclesiastical, and practice is, I refer 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 simply hidden, but in part is manifested, and brought to light; and therefore is it fit, and convenient; that the party be either cleared of it, or corrected for it. Besides, that place of S. Paul is not meant of any judicial proceed; but of private, rash, and uncharitable judging of our brother (in the worst part) without any just ground thereof; as if we would take upon us Gods own office, and would judge the inward cogitations of another man's heart. Such perverse judging, our Saviour Christ also 1 Matth. 7. v. 1. Rom. 2. v. 1. condemneth in the Gospel. But it pertaineth nothing unto such enquiry by oath, as the Magistrate hath good enducements, and presumptions for, to enter into. Another sort, no less pernicious than the former are those, who will pretend not to refuse to take an oath in a cause criminal: but yet they will do it with this limitation and protestation, that they intend not thereby to be bound, either to accuse themselves, or their brethren. By accusation, meaning the revealing of any thing; for which they, or their brethren, may be troubled or punished. Upon what ground, other than the general reasons of the rest, and of the jesuits (as if it were against nature, and charity, etc.) these should build this opinion; I (for my part) cannot well conjecture. But it sorteth to this pass; that seeing we are all brethren, and members one of another; therefore it shall not be lawful for the Magistrate to punish any sin or transgression, saving where himself doth take the offender with the manner: yea and scarce then too. For they will hardly (I believe) allow, that the same man shall be accuser, witness, and judge. For they conceive (howbeit erroneously) the judge who proceedeth of office; to be an accuser. This plainly followeth of it, because no sin may lawfully be punished, but where the party is convicted. There can be none other conviction, but either by the parties own confession, or upon depositions of witnesses. So that if no Christian be bound, nor ought (before a Magistrate) to reveal either his own, or his brother's offences; then doth it follow, that crimes shall never be punished, till the offenders themselves (being moved in conscience, if happily they shall even then, by these men be suffered, to accuse, or discover themselves) shall wilfully come in, and desire (for God's sake) to be hanged up, or otherwise punished; as the quality of their offence leadeth. Amongst the heathens, I read of no nation, but they used and had oaths in great estimation, and necessary practice; saving 1 Alex. ab Alex. Genial. Dierum. li. 5. cap. 10. the foolish Phrygians, who only condemned them. And amongst Christians, the old heretics Manichees; of later times, the Anabaptistes; and now lastly these fellows. who (albeit not in plain words) yet in very deed, do (upon the matter) take away all oaths in matters criminal, and consequently all, both Civil, and Ecclesiastical punishments and censures, from among men. For 2 Cyprian. in exposit. Symboli. Manes the old heretic taught; that it was not lawful for Christians to swear at all. The third sort of opinions (being delivered by divers of the more learned sort of the Innovatours) are of such, as hold; that they may reveal both their own, and their brother's crimes and offences, to remove evil from the land (as they speak) when they are duly charged thereunto by oath. But some actions there be, which they believe to be well, and lawfully done; and yet by law, or iniquity of the time, they hold to be such, as may bring trouble, and punishment upon them. And those, (they say) they are bound in conscience, not to declare at all. This opinion for the first part thereof, is directly contrary, to the next afore precedent. But who shall judge, whether such matters, as they be inquired of, aught to be accounted for faults and offences, and which being punished, will remove evil from the land; or whether they be (in deed and truth) good & virtuous actions? I greatly fear, that these men will not (in this point) be content to be overruled, either by the laws of the Realm, or by the Magistrates, & judges, that be interpreters of the laws. But (no remedy) an oath they will not take, till they shallbe satisfied, and resolved (which they can make as long in doing, as themselves lust) that such actions be justly and lawfully to be condemned, for Crimes and offences, by God's law. So that this is nothing else, then to permit unto every private subject the judgement how far, in what causes, and against whom he needeth to declare his knowledge, of anymatter: how expedient soever for her Majesty, and unto the whole commonwealth it be, to be known. Is not this to put a sure buckler into the hands of jesuits, other traitors, murderers, felons, and every lewd companion, to hold forth against the lawful examination of Magistrates, touching themselves, or their complices? For if they need not declare any thing by oath; much less will they have conscience to do it, when they are not sworn: which forbearing of the parties own oath in examination of crimes (that may be capital to him) is always observed in this Realm. Perhaps, unto this absurdity, following of their opinion, it will be said; that those above rehearsed, are known and manifest crimes to almen, even by the light of nature: but so are not their Disciplinarie, and Synodical Constitutions etc. It is true, that treason, murder, theft, and such like; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, even in their general nature, are condemned for crimes by all men. Yet when men come ad 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the particular application of their own facts unto the general crime: they are then contented to flatter with their consciences, and to please themselves in their own actions; and so with such, and such circumstances to deny theirs, to be in any like degree. Do the jesuits (think ye) when they are convented, condemn their lewd seducing of her majesties subjects, as treasonable? did the damnable conspirators with Babington the traitor (albeit they were not ignorant, what the laws of the land did adjudge of their actions) when they went about their treasons, condemn themselves as traitors: and not rather lewdly flatter themselves upon some circumstances, which they thought should assoil them of all guilt afore God? Therefore this opinion, though it carry a colourable show of some greater obedience: yet when the reckonning is cast up, it jumpeth (in very deed) with the second. For it cometh to this point, that every man shallbe his own judge, how fa●…e he need to obey laws, and Magistrates, that require him to deliver his knowledge, touching his own or other men's facts; so he himself will account them, lawfully done. Besides the absurdities, that follow this opinion, it is also in it self very unreasonable: For if a man may reveal his brothers, or his own sin, may he not much more his virtue? If God be glorified in detecting of sin, much more in making virtues known. If truth must needs be uttered of sin, much more of virtue; for wisdom is justified of her children. If their doings be good, & instifiable, then to conceal the truth, is (in very truth) nothing less, then to betray and forsake the truth. And that this is but a vain gloss, devised, in truth, to cover their misdemeanours, and to escape from deserved punishment: may appear, by the desire they carry (by all ways, & means) to cloak their said actions. If their works were not of darkness, and secrecy; they would not fly the light. For it is a property of those which do evil, to fly from the light. If their doings be works of the light, let that light shine forth before men, that they may see those their goodworks, and glorify their father which is in heaven. If they stand assured, they have done but well, what punishment soever should light upon them for it, they should confess their obedience, and T. C. practice of the whole Gospel of Christ, (whereof they make their discipline a necessary part) and rejoice with the Apostles, that they are found worthy to suffer punishment, for the Disciplinarian part of the Gospel. But is not this strange, that where the most part of this Disciplinarian humour, do think that they ought to discover nothing of themselves, nor of their brethren, that is criminal: that yet these others, being fewer, shooting at the same marks, will (as they say) reveal their crimes only, but nothing else; no not their own, and their brethren's virtues and good deeds; belike for fear, lest they should be counted to do it, upon some vain glory. Yet this opinion giveth us this advantage, that if a man may lawfully reveal, and discover, not only his brothers, but his own crimes and offences, if they beetruely crimes: then have they no colour, but they must do it, when by the Magistrate, (according to law) and upon their oath, they are so commanded. That which they may lawfully do, that may the Magistrate lawfully enjoin: and they (without disobedience to God's ordinance) may not refuse. So that for the lawfulness of ministering an oath to a party, in a cause verily criminal, and thereby penal to himself (being a main, and principal controversy betwixt the State, and them) we have allowance by some of their complices own positions; but yet we cannot get their practice unto it. But more hereof in the next Chapter. The fourth and last of their opinions touching such oaths; seemeth to be something better, (and even perhaps Classicallie or Synodicallie) digested by them. Yet it carries no small contradiction in itself. which (to their most advantage, that they can possibly have it understood) I will seek, (by distinction) to reconcile, and to make stand together. These therefore may be thought generally to hold, that for anything, whereof witnesses may be had, the party may not be examined upon his oath. Out of which general, they diduce this: that the judge may not examine a Preacher upon his oath, touching his doctrine delivered in public place. And if he go about it, the Preacher without breach of duty to the Magistrate, may lawfully refuse to swear. But if the crime be so hidden, and secret, that witnesses may not be had; then a man may be charged (say they) by oath. But this they also limit, and restrain thus: so it be not to draw matter of accusation against themselves. And to this purpose, they do use seven reasons. Albeit the same men also say, that to remove evil from the land, they will take such oath. They will, etc. But they tell us not plainly whether they take themselves bound to do 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 themselves evil (that is prohibita quia mala) they will be pleased to take an oath to reveal them: but things that be secret, where no witness can be had, and be none otherways evil, but because they be prohibited; such they may, and will refuse to declare, by oath. which if they mean in deed, (as it is very probable they do) then do they run quite contrary to the opinions of all men beside. For if it might be left to most men's choice; they would rather discover of themselves and others, some breaches of Statutes, not directly sorbidden by God's law: then such their own crimes as be forbidden, and therefore contain more turpitude in them, as adultery, perjury, and such like. But it must be remembered, that these men have an odd grace in framing opinions of divinity, Pro re nata, even as present occasions do lead them. And they temper not their actions (oftentimes) unto their former conceived opinions; but they conceive opinions, and coin conceits: as may best stand for defence of their own, and their favourers present actions. Now, because many of them hope to be found clear (in their own persons) from gross and actual crimes so expressly forbidden by God's law; but not so clear (perhaps) in breach of the laws of this Realm, and peace of the Church: therefore is this new opinion stamped by them, to stop up this gap. For the proof of this their assertion; that where winesses may be had, there a man may not be examined upon his oath: First they say, for judges finding out by Inquisition what is spoken, or done, they find two ways in Scripture. One by witness of others, where they may be had; which they go about to prove by these 1 Deut. 13. v. 12. & 15. Deut. 17 v. 2. & 7. Num. 35. v. 30. Deut. 19 v. 15. joan. 18. v. 20. & 21. 1. Tim. 5. v. 19 places quoted in the margin. The other way, by the parties own testimony, where witness cannot be had, for the thing spoken, or done, whereof necessary inquisition is made, which they would prove, by these other 2 josu. 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 ways be mentioned in Scripture: Ergo, there be no more but two? or if it were admitted, there be no more ways mentioned for Inquisition of crimes; doth it follow, that therefore all positive laws of Commonweals, & kingdoms, for inquisition, and trial of crimes, in any other sort are unlawful, & against God's word? what is this else, then plainly to overthowe, & condemn (as ungodly) not only the Inquisition and trial by juries and verdicts of twelve men, used in this Realm, and not mentioned in Scripture: but also the proceed judicial of all the world beside, if they do not wholly jump in manner & form; with the Inquisitions & trials mentioned in scripture? * This erroneous couceit Barrow held, in his last book printed at Dordrecht. And so (instead of all our positive laws) to bring in place, the judicials of Moses' (given only to the people of the jews) not only for the equity of them, but for the very substance, & form of them also? whereby the Priests shallbe judges what is law, in every difficult, & controversed point; in whose judgements (upon pain of death) every man must rest contented. Nevertheless, by this their own position, I thus prove against themselves; that they do wickedly in refusing to take their oaths. Wheresoever in an Inquisition of a crime, no witnesses can be had, there (by the law of God) the parties themselves must take their oaths, and declare the whole truth. But of their framing of a book of new Discipline Ecclesiastical, and Synodical; of their subscribing to it, of putting some of it in practice; of meeting in Classical assemblies, or Conferences; in Synods, and general assemblies; of matters there treated of, & concluded against the laws and government of this Church of England; of secret writing, and dispersing of their slanderous books, and libels, containing erroneous, and heretical opinions, and seditious incitements: which last points are Prohibita quia mala: And touching the circumstances of these, and every of them, no witnesses can be had (as experience itself showeth) for they were kept as close, & secret, as could be; they were done in private places, & chambers; from whence all other were secluded, saving the very parties themselves (being all principal delinquents) and not called thither, or being there as witnesses. Therefore (by the law of God) they ought hereupon to take their oaths, and to declare the whole truth in these matters. For so is their own position. Now I will examine their several proofs, brought for this opinion. The first is this: 1 Deut. 13. v. 12. 13. 14. 15. etc. If thou shalt hear say concerning any of the cities which the Lord thy God hath given thee to dwell in: wicked men are gone out from among you, and have drawn away the inhabitants of their City, saying, let us go and serve other Gods, which ye have not known: then thou shalt seek, and make search, and inquire diligently: and if it be true, and the thing certain, that such abomination is wrought among you, thou shalt even slay the inhabitants of the City with the edge of the sword; destroy it utterly, and all that is therein, & the cattle thereof, with the edge of the sword. Where you see, the punishment is universal (though the first persuasion came happily from a few) and therefore the defection from God unto Idolatry, was there, amongst the men also general. For the justice of God is; that 2 Ezech. 18. v. 4. the soul which sinneth, that shall die. How can this prove, that no party to the sin was examined, but that they were convinced only by witnesses? Nay, the contrary rather is manifest. For who is so fit, and so likely to have knowledge of things done in a City, as those that dwell in it? and therefore the law alloweth Citizens, for good witnesses of matters there done, even when it is for their own benefit: because (by common intendment) others cannot be had. I will ask then, whether this general condemnation and execution against a whole city, might proceed only upon hearsay? this were very unjust and cruel; and it is said in the text, it must be known certainly. But if upon certain, and sure conviction; then cannot it be otherwise, then by the examination of some persons of that city, who only can know the certainty thereof. But these are all parties, Quia quos par culpa, eosdem tenet & par poena, & è converso. For God hath appointed this negative justice in his law: that 1 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 every man shall be put to death for his own sin. And in the Affirmative, it was decreed in a Council thus: 2 Concil. Tolet. 4. Can. 78. Oportet ut una poena teneat obnoxios, quos, similis error invenerit implicatos: such as be guilty of the same fault, must needs be subject to the self same punishment. And therefore it followeth, that this Inquisition here spoken of, was found out by some of the parties own examinations: rather than by any other witnesses dwelling abroad, and therefore not able to deliver any certainty. But in so penal a matter, a man will hardly confess, without torture or oath: and 3 Hebr. 6. v. 16. an oath is for confirmation. And therefore it may happen (by the equity of God's law) that a man (in a matter criminal, and even capital to himself) may be examined by his oath. How much more then, of a crime not so penal? That other place of the 17. of Deuteronomie, is left at large, without expressing, whether the party condemned there of Idolatry, were to be examined upon his own oath, or not. Besides, in matters capital, and where there is an Accuser (as in some sort is there) no man in this Realm urgeth an oath. But it is necessarily to be gathered, that at least the party convented, did answer the Accusation, or Inquisition there, by denial, before the witnesses were produced: which many of this sort of men will not do, either the one way, or the other. The other two places of the 30. of Numbers, and 19 of Deuteronomie, do only determine; that no man shallbe condemned upon one witnesses deposition only: and do make nothing to prove either off, or on; whether a party may be examined by oath, where witnesses may be had, or not had? except they mind to gather it thus: there be mentioned only depositions of witnesses, to the conviction of a matter: therefore no course beside, or in any other form, may be used. But this cannot be; for though the party deny it, (yea with oath) yet upon two witnesses, shall the matter be established. And if such collection were consequent upon these two places; then albeit a man would willingly confess the matter against himself, he might not be cast and convicted, till witnesses also should depose no less. But this is absurd; in that nullae sunt partes judicis in confessum, nisi ut ferat sententiam: and in the Gospel, ex ore tuo teipsum judico. Besides this, the condemnation by juries, were then quite to be condemned, for ungodly. For they may give verdict sometimes but upon one witnesses testimony, and sometime without any; upon violent, and strong presumptions only, which (in hidden crimes) are good proofs. Neither are they of the jury to be accounted as witnesses; but are as a kind of judges of the fact. Therefore in Magna Charta, it is called judicium per pares, and they much resemble Pedanei judices, or Recuperatores in the Civil law, and pares Curiae in the feudal law, which is practised (chief) in Italy, Germany, and France. The place in the 1 john 18. ver. 19, 20, 21. Gospel of S. john, where Christ being asked by the high Priest, of his disciples and doctrine; doth answer thus: Why askest thou me, ask them that heard me: for I spoke openly in the world: I ever taught in the Synagogues, and in the Temple; whither the jews resort continually, and in secret have I said nothing: they do greatly insist upon, and urge; as a commandment to this purpose: viz. that where any witnesses may be had, there a man may not be examined himself; but especially touching doctrine publicly delivered. but they are manifoldly deceived. Every action of Christ is for our instruction saith S. Augustine, but not every one for our imitation. Therefore of any particular action done or not done, according to several circumstances by our Saviour Christ (being the wisdom of his Father) we may not gather a general doctrine of imitation; except we were sure of all the causes and circumstances then concurring, that so did move him, at that time. When 1 Matth. 26. v. 62, 63, & 64. jesus was falsely charged by untrue witnesses, he answered nothing, though he were urged greatly thereunto by the Priest, but held his peace. And of holding our peace in like case, Origen 2 Origen. tract. 35 in Matth. thus speaketh: to what purpose is it, to gainsay those, who gainsay and overthrow themselves, by their own contrarieties: especially seeing it is more worthy, freely and resolutely to be silent; then to stand in defence to no purpose: for so shall not false, and lewd witnesses insult over us? Yet when the Priest presently thereupon, adjured him by the living God, to tell them if he were the Christ, the son of God: he made them an answer; albeit in his divine wisdom he knew, that they meant to make it capital unto him. Now, shall we hereupon gather that whensoever our words before a judge, be calumniously detorted by false witnesses, to our great danger; and we urged: by him to make answer, that we are therefore bound to hold our peace? When Saint john Baptist was 3 joan. 1. v. 19 & 20. asked by the Priests and Levites, a dangerous question, such as if he had been (as they seemed to doubt) the Messiah; might have turned him to great danger: viz: what he was: he confessed, and denied not, but said plainly, I am not Christ. So that we see, such a general doctrine as they gather, may not be collected out of the former answer of our Saviour. We are therefore to know, that the answer was very apposite and fit unto: the question, which was infinite, and general, touching his doctrine. which no man (otherwise then in generality) can answer, and therefore the answer was correspondent to the question. For it was, as if he had said thus unto them: you ask me of the whole doctrine by me taught, this is impossible for me to answer, and to recount up unto you. If you think any thing therein (particularly) to be erroneous, or seditious; inform yourselves by those that have heard me, and then what you shall so object, I will be ready to answer. This you may easily do: for that which I have taught, I have done it publicly in the Temple, and in Synagogues, and not in corners. so that you shall not need to make me take upon me, such an endless, and impossible work, as you might have just occasion to do, and to make me yield account, if my teaching had been in secret. Whereupon thus I gather against them: if Christ being willed to give an account of his whole course of doctrine, did therefore refuse, because it was too general a question to be answered, and also because it was in public places only delivered by him, (so that they might easily first inform themselves what they took to be amiss, and worthy to be objected against him) in somuch, as he had said nothing in secret; which if he had, might have given (in truth) just cause unto them to examine himself, what points they were, that he so carefully did avoid the light to teach them in: then these men, that be asked not of their doctrine in general, but of their particular actions in this and that point, in this place, at that time, done not publicly, but (of set purpose) so covertly, as might be, so that no witnesses (but such as be also parties) can be had: have no just defence nor colour of it, out of this place. And therefore of such hidden crimes (by their own position) they ought to answer by their oaths. Besides, Christ was not detected (afore) of any particular matter, wherewith they might charge him: neither if he had been, was it his principal purpose (otherwise then that he would leave testimony, that he died an innocent) to stand to clear, and excuse himself particularly; that the determinate Counsel of God, might take place with him. By the premises may appear, that the three reasons which they bring, to prove this manner of question, and Inquisition, moved by the Priest, to be unlawful; are altogether needless, seeing no man defendeth the like. But for proof either of that more general position, viz. where witnesses may be had, a party may not be examined: or of the more particular, viz. that a Preacher may not be asked of any points of his doctrine, by him publicly delivered: neither doth this example of Christ, nor the places which they bring, and are here 1 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 have leisure, would but turn to them; that they may know, with how little either judgement, or else sincerity, these men do handle the word of God. The place to Timothy, that against an Elder or Priest, an accusation shall not be admitted, without two, or three witnesses: maketh neither hot, nor cold to prove, that wheresoever witnesses may be had, the party may not be examined upon oath. I have heard it brought, to exempt them from being inquired into at all; except two witnesses did first verify the accusation, before it be preferred. But it serveth both these turns alike. First, that place is meant, that it shall not be holden otherwise as sufficient to convict him: the word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, allow it not. If it were meant of the first entertaining of an accusation, than these inconveniences would follow. that the accuser who at his own peril debet venire paratus, should (by the very receiving or rejecting of it) know afore hand; what his witnesses have deposed, or can depose. Secondly, that witnesses might be examined to a man's prejudice, part rea non citata, or else that they must be twice examined; once before the accused do appear, and once afterwards. which is a needless trouble, where process informative is not used. Besides, those men (that claim 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 sort) of their crimes, before the accusation be received. For if upon the fame they be called, than a multitude (as it were) testifieth against them. if upon judicia, Evidences, or presumptions, the like is to be said: because these are equivalent unto a fame, as hath been touched before. And to satisfy them the more herein, the law requireth not upon an accusation; that the party should be examined upon his oath, touching the crime. But they (because they will be wayward, and overth wart in all things) pretend it to be lawful in a court ecclesiastical, for a man (when there is a prosecutor, as in the Starchamber) to be put unto his oath, for the truth of the very crime: but not when it is ex officio judicis. which, if the law ecclesiastical, would warrant; the judges thereof might soon have the oaths of these men, by their own position, and grant. For who knoweth not, how easy it were to enjoin any officer of the Court, or one of the Commissioners friends, or servants; to prefer the matter, and to stand forth (as they term it) an accuser? The two places remaining out of the 22. of Exodus, & the 5. of Numbers, I have touched in the eleventh chapter afore. showing there, how they prove, that a man may be examined upon his own oath, in a criminal cause, though there be no witness, but a bare suspicion of the adverse party. But that a man may in no other case beside, be examined, where (perhaps) witness may be had (which is their purpose in this place) there is no colour, nor shadow in either of them: execpt they have learned to reason out of every single place of Scripture, both affirmatively and negatively thus, viz. This may be done in that case: and therefore, nothing else may be done. For the proof of that second position, viz. that if a Magistrate do require a Preacher to answer upon his oath, touching any doctrine by him publicly delivered, he may without breach of his duty, lawfully refuse to swear: I do see nothing further by them brought, that is worthy the answering. For whereas Caluin, and other Divines say, that the use of oaths is upon necessity, and for matters hidden: it is not meant by hidden, that an oath cannot lawfully be given, where witnesses may be had: but where the thing is neither notoriously apparent, nor confessed by the party. For so long is it hidden to the judge who must proceed secundum allegata, & probata. otherwise, it would follow hereof, that an oath might not be given to a witness, because the matter is known, and not hidden unto him. And for the necessary cause of giving it; what can be more necessary, than the discovery & suppressing of sins, and offences, both in Church and Common wealth? But these men's grief is, that themselves are not made the judges; whether the things they are to be examined of, be necessary, and of importance to be declared. All that is spoken of the conventing of S. Paul before several Magistrates, in the 1 Act. capitibus 24, 25, 26. Acts of the Apostles, is spoken unto afore, and no way fits this purpose. For where there be accusers, there the party's oath, is not required. And yet S. Paul there, doth answer particularly; confessing something, and denying other some, of doctrine, and actions objected. Neit●…er is it to be thought, that he would say otherwise being not sworn, than he would have done though he had been sworn. Now whereas they say, that to remove evil from the land, they will swear (though the sin be secret) but restrain it thus: so it be not to draw matter of accusation and conviction against themselves, out of their confession: it is (in effect) as if they had said, that in whatsoever cause criminal, and penal to themselves, they will take none oath at all. except they mean that mala quia prohibita, be no such evils, as are to be discovered or removed at all from the land. And according unto this interpretation; their seven reasons (being all that I have hitherto happened of) do indistinctly tend. First, they say, it is an approved maxima of the law: Nemo tenetur seipsum accusare vel prodere; sive propriam tur pitudinem revelare. But I have 1 Cap. 9 3. part. showed afore by true distinction (out of the same law, whence this is drawn) that it is to be understood 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 ways (that do open a way to an enquiry, of a person supposed criminous) are come abroad, and so (in some sort) are manifested: then those former rules, and that of chrysostom, 2 Chrys. hom. 31. ad Hebraeos. Non tibi dico ut 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 avoiding of scandal, and that the party may be reform. Therefore doth Aquinas himself very gravely resolve thus: 3 Thom. 2. 2. Cum quis (saith he) secundum ordinem juris, à judice interrogatur, non ipse se prodit, sed ab alio proditur: dum ei necessitas respondendi imponitur per eum, cui obedire tenetur. And again, very pertinently to this purpose, of giving & taking an oath: Quicunque facit contra debitum justitiae, peccat: sed pertinet ad debitum justitiae, ut quis suo superiori obediat in ijs, quae exigit, secundum formam juris. This distinction of the said rule, is strongly confirmed by that, which is alleged of the oath of jealousy, and of him which is depositarius in the law of God, handled in the eleventh Chapter afore. For if they that be bewrayed by the only (perhaps) vain suspicion of another party pretending grief; must undergo so straight a course of purgation, or else bewray themselves, to their app●…ant shame, and dishonesty, besides the grievousness of the punishment: how much more than is it equal; that those, who by fame, or vehement presumption, or such like arisen; are discovered to the Magistrate; and by him (not for any private satisfaction, but for the public good and benefit of the Church) are urged to such oath, and for their own reformation: should either take it, or else (according to those examples, and to all good laws) be reputed convicted, by their own implied confessions? To this point, is that not impertinent, which is alleged by 1 De poenitentia. dist. 1. c. quia aliquando. in fine. Gratian out of an ancient Father: Taciturnitas peccati, ex superbia nascitur cordis: ideo enim peccatum suum quisque celare desiderat, ne iniquitas sua, alijs manifesta fiat: ne talis reputetur apud homines foris, qualem se, tamdudum exhibuit divino conspectui. Their other six reasons to this purpose (I assure you) I do blush (in their behalf) once to mention them: they are so childish, so vain, and flashie. the very rehearsing of them doth carry a sufficient confutation, and answer on his back: as that, he which is put to this oath, is bound to prove a Negative, against law: that it doth pervert the end of the Civil law, which is to be safe: belike, they mean the last law of the twelve tables: Salus reipub. suprema lex esto. that it transferreth the glory of God unto man, by searching men's consciences: that it is contrary to the equity of God's law, in that witnesses should stand forth, and not he accuse himself. this is coincident with the first of the seven. that it is of the nature of auricular confession: that it is a nowrisher of slanderoous persons, because not the slanderer, but the party accused, must take his oath. If the reasons hereupon to be framed were to be put into form of Syllogisms; then these propositions must be used for assumptions. but they are not only very untrue, and to be denied; but are not at all proved by their Prosyllogismes, or reasons; which are joined unto them; to uphold, and underprop them. So that to conclude this main point of ministering oath to a defendant touching his own crime or offence: these their four opinions against this kind of oath are neither reasonable; nor their, or any others reasons used against it, are of any force or weight; and therefore, though no further confirmation had been used by us; such oath would have been justifiable: which is now (as you have heard) otherwise also manifoldly approved. CHAP. XIIII. That a man being charged by authority to discover his knowledge touching some offence which his Christian brother is supposed to have done, is bound to reveal it, though it may breed trouble, and punishment to his brother. and the reasons to the contrary are answered, & refuted. IN the general distribution made in the Preface before the second part, for matters after to be handled; and which are challenged of unlawfulness, or of impiety by the Innovators: I there noted; that fault is found by them, not only because oaths be given (in criminal causes) unto the parties themselves: but because they are examined as witnesses also, touching other their complices, and brethren's actions. This their challenge is made, in this respect: for that it is sought (they say) by virtue of their oath, to draw out of them, such their brethren's actions; as albeit the laws of the Realm, and those who are their judges, do hold to be crimes, and offences, and mind to punish them in that quality; yet they who are to be examined, are persuaded; that they are well, and commendably done, whether by themselves, or any other their brethren. And therefore they do think, that they are bound in conscience, not to take an oath; whereby they may be tied to so ungodly a discovery of their brethren's good actions, whereby they shall bring them to trouble, or punishment. For if they were offences, and crimes, than (say some of them) to remove evil from the land, they would be ready to reveal them upon their oath. but being, as they take them to be, (whatsoever other men do) by no means they may discover them. And this point is now by most of them (that seem to be of any skill) chief rested upon (letting other more easily go) albeit they deliver it abroad charily, and somewhat fearfully. But the absurdities, and inconsequence of this opinion; I have somewhat also (by occasion) touched, in the 13. Chapter of this part. Howsoever it is now newly taken up, and an opinion, which they greatly please themselves in: yet did the Fathers in the Primitive Church condemn it for erroneous, and the practice of it, as ungodly. Both are 1 Augustin. ad Casulanum. guilty (saith S. Augustine) that is aswell he which hideth the truth, as he which telleth an untruth: because the first of these will do no good, the other seeketh to do hurt. So that these two are matched together by him, as being not much unlike. A sufficient reason hereof in crimes, may be taken from those 2 2. Timoth. c●…, 3. v. 13. words of the Apostle, where he saith: Evil men, and seducers will go forward from worse to worse, both continuing in error themselves, and leading others into it. And therefore their wickedness, is meet to be discovered; that the mischief may be prevented. But to this it will be said, that the case is put, and the controversy is made, only where the parties to be examined, do not think such their brethren's actions, & practices to be evil, or their opinions erroneous: howsoever the Magistrates do otherwise conceive of them. Let us therefore consider, what is to be thought, & determined concerning the bewraying of our complices and friends, about matter of heresy, and error in faith. In which crime of all other, such as know their heresies, & join therein with them; are most resolutely persuaded, their cause to be passing good. Nevertheless, if this crime also aught to be discovered & manifested, then much more are all other sorts of criminous persons, especially when (in some sort) they be discovered before, unto the Magistrate. S. 2 jacob. ca 5. v. 20. james saith: let him know, that he which converteth a sinner from his erroneous way, viz. being afore seduced from 3 Ibid. v. 19 the truth; he saves that soul from death, and shall cover a multitude of sins. This covering of sins is no merit of the converters; as if his sins were thereby to be wiped a way in the sight of God; as the Papists have dreamt: but it is the hiding & covering of the sins of him, who is converted. That this is the true sense of the place, appeareth by the circumstance of salomon's words, from whom that phrase is borrowed: hatred (saith he) 4 Prou. ca 10. v. 12. stirreth up strife, but charity covereth a multitude of sins: even so far as with a good conscience may be done, as Tremellius noteth. If then upon a seduced man's conversion, a multitude of his sins are kept hidden by him, who converted him: it will follow, that if he be not converted, but still go on in his error, such his sins may; yea, and aught to be manifested abroad, and discovered. Therefore much more, when (in some degree) they are before revealed unto the Magistrate, that makes the Inquirie. Nay, a persuasion unto Idolatry (which is a kind of heresy, & also is a putting of it in practice) we have an express commandment of God, voluntarily & of ourselves to reveal it, how secretly, or by how dear a friend soever it be committed, or we by him enticed unto it. If thy 1 Deut. 13. v. 6. 7. 8. brother the son of thy mother, do secretly entice thee; or if thine own son or thy daughter, or thy wife, that lieth in thy bosom, or thy friend, which is to thee as thine own self: saying, let us go and worship other gods, etc. thou shalt not consent unto him, nor hear him; neither shall thine eye pity him, nor show him mercy, nor thou shalt not keep him secret. Where, albeit we be commanded not to consent unto such seduction: yet is that other part of the precept of not concealing him, simple, and absolute in itself; and without any distinction, whether the party enticed, take hold of the persuasion, or not. For shall not the concealing, be aswell a sin to him that yieldeth unto the seduction, as it is to him who resisteth it? Saint Augustine sayeth: let 2 Aug. ep. 74. ad Deuterium. us then, and not before, trust an heretic, who desireth to be received upon his repentance: when he shall be content to reveal unto us, such other; as he knoweth to be of the same opinion. Therefore to discover their secret complices, was by him holden to be no sin, nor yet performance of any bad office. S. chrysostom to the same effect 3 Chrysost. in psal. 5. saith: This is the office of an especial wise mind, not to revenge his own, but to prosecute mightily the injuries done to God. And else where 4 Chrysost hom. 5. in opere imperf. more fully: let us learn (saith he) by Christ's example, courageously to bear the injuries that are done to ourselves: but not to endure so much as the hearing of injuries done to God. For it is commendable to be patiented in our own injuries: but to dissemble the injuries which are done to God, is ungodly and wicked. Leo the great, an ancient Bishop of Rome, thus exhorteth men to the revealing of heretics: 5 Leo magnus ser. 4. de collectis. wheresoever the Manichees do hide themselves, show it unto your priests: for it is a great part of godliness, to bewray the lurking places of the wicked, and to vanquish the devil himself, in those who serve him. And the same Father 6 Idem. serm 4. de jeiunio decimi mensis. elsewhere more fully: dearly beloved, I beseech and warn you; that if any of you do know where any heretics do dwell, where they teach, whose company they frequent, and in whose society they are delighted; that you would truly show it unto me, who am most careful hereof. And further a little after: Those who think such are not to be bewrayed, are to fear; least at the judgement day of Christ, they be holden guilty by reason of their silence, yea albeit they be not defiled with assenting unto them. The same, which he taught by doctrine, he also 1 Prosper. Aquitan. in Chronico. put in ure, by his practice: for it is reported of him, that when Paternus, & Maximus were Consuls; by the careful diligence of the said Leo, it was brought to light; that many Manichees lurked privily in the City: Who bringing them forth of their secret corners into the public sight of all the Church; he made them both reveal all their foul opinions, and also to condemn or abjure them: and withal he burned their books, 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 only 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 Bishops and what Priests those of that sect had, and in what provinces and Cities they were. And many Bishops of the East parts followed this careful, and good example of this Apostolic Bishop. For as 2 Thom. Aqui. 2. 2. q. 33. art. 7. Thomas sayeth; By the very law of charity, the good of religion is always to be preferred, above the fame, yea, or the very lives of the wicked. 3 Plato. li. 10. de legibus. Plato but an heathen Philosopher, thought good to tie, all in his commonwealth unto this law: viz. If any man deal impiously or ungodly, either by words, or deeds; let him that is present stand in defence of God's cause, and also relate it unto the Magistrates. Saint Hierome 4 Hierom. in 15. cap. job. requireth of all humble Christians, this duty, of revealing, not only heresies, and erroneous opinions of other men; but also other offences. those (saith he) are truly wise in Christ, who being converted unto God, do faithfully confess, and do by public repentance satisfy the Church, whether for their sins or their heresies: and who not only do this, but also discover those that are means to bring them into those crimes, or erroneous opinions. I have not hitherto heard of any, besides certain heretics; who at any time held the like opinion unto this of the Innovatours, and factious persons in this Church. Saint Augustine reporteth, that the old 5 August. in lib. de haeresibus. heretics called Priscillianistae, did te●…che their scholars, not to reveal the doctrine which they learned, yea though they were examined thereof upon their oaths. affirming withal, that rather than fail, it were better to be for sworn, then to discover it: And therefore this saying was rife in their mouths; jura, periura, secretáque prodere nolt: Swear (say they) yea and for swear yourselves too, rather than reveal these secrets. This heresy was also afterward holden, by an 1 Bernard. Serm. 65. & 66. in canticum. other sort of heretics, in the time of Bernard, that were termed Apostolici. And by certain other (as it is written) that were called Flagellantes where (by the way) we may observe, that none in those days had learned absolutely to refuse an oath in a matter made by the Examiner's criminous unto the parties examined; or yet to their complices, and brethren. But for not revealing their own, or their brethren's secrets, those heretics of old time had learned perfectly enough to conceal the true●…h; yea, albeit they incurred flat perjury, by such their concealment or denial of the truth. I will now assay, to answer the reasons, which I have heard brought, for the establishing of this their conceit. But first I must put you in mind, how unreasonable, & inconvenient it is to be accounted, in all practice of laws. For when the defendant hath denied a crime objected, or refused to answer yea or nay, if it might be free (for all that by likelihood can testify thereof) to make such pretence, to the intent to excuse themselves from that necessary duty unto the commonwealth; what criminous person could, or were likely to be ever directly convicted? whereas, (by the civil 2 〈◊〉. 6. § 4. C. de his qui ad eccles. consugiunt. laws) sometimes, he that is supposed to have appointed the delinquent to do the fact; he that is his surety; he that is called into question for the same crime; he that is fellow, or familiar with the suspected person, may be compelled to swear & depose of a crime. By the common law, if such (as are supposed can give evidaece for the Queen) should not oftentimes be compelled thereunto by authority; would there not (in many causes) want due proof, for iusticeing and for execution of offenders? But to this it is said, that men are but bound in an obligation or recognisance to prosecute the felony. It is true: what other bond should any man enter for his appearance? But if he refuse that, may he not be sent to the jail himself? And when he cometh before the judges, he is bound also by a necessary oath, to give true evidence (to the utmost of his knowledge) against the prisoner, or person to be tried. Which, if he shall refuse; he is like to stand in bolts with him, whose fault he mindeth to conceal, as he well deserveth: and happily may be condemned to pay a round fine beside, for his notorious contempt, and for abetting of offenders, in their lewdness. If it be said (as some have objected) that it is not amiss to certify, so the party be willing: but that it is hard to bind him (upon his oath) to testify, whatsoever he knoweth against the defendant, touching that matter: truly I cannot guess whereunto this speech may tend; except witnesses might say what, and how little they list of the truth; or else that they would have men's words to be believed against others (to their conviction) without any oath. But what matter can be confirmed without oath in any outward actions of men, not known by some sense unto the judge? it is the law of nature and nations, to believe no man against another, without an oath. For why should not any man's bare denial for his own clearing; be as strong as many other men's bare words, for his condemnation? quia proniores esse debemus ad absoluēdū quàm ad condemnandum. Therefore the holy Ghost noting it to be a law of nations, that no man's word (unsworn) should be received, thus testifieth; that an 1 Heb. 6. v. 16. oath for confirmation, is amongst men (indefinitely, & therefore most universally) an end of all strife. It is 2 Alex. ab Alex. Gen. Dierum. Lib. 5. cap. 10. told as amaruaile of one (only) amongst the heathen, 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 uprightness, & integrity. Touching their reasons, I make this to be the first, as most general: viz. Because they have not justly incurred the Magistrate's displeasure by any offence, therefore they cannot hold themselves bound in conscience, to be the Magistrates iustruments against such; as be none offenders. To which may be added, that they are bound to seek rather the deliverance of the Innocent, because it is said: 3 Proverb. 24. ver. 11. Deliver them that are drawn to death: and wilt thou not preserve them, that are led to be slain? And it is noted as a sin in S. Paul himself, that he 4 Acts 22. v. 20. stood by, consented to Stevens death, and kept the clothes of them that slew him. As if they should say, We have gone (in this matter) as far as our brethren; we know our course to be good, whatsoever the laws or the Magistrates determine or think to the contrary; that do but seek to punish us for it. And seeing we are so well persuaded of all our innocencies, we may not be any instruments of our own or their further detection: for this were to consent, to have guiltless men punished. But is not this to take upon them (being but witnesses of the fact) to judge also, of the law, what it ought to be, and to condemn it as it is? and is it not (in effect) as much, as to condemn the laws of unjustice, and the magistrates of tyranny, persecution, and of seeking the vexation of innocents? But if the laws were such, yet (at the commandment of the magistrate) to tell the particulars of these their actions, so justifiable (as they think) whereof the Magistrates already know the generality; is not to consent, unto the punishment of innocents. Doth every one that confesseth his own crime, & pleadeth guilty in a cause capital, consent to his own death, or is thereby guilty of his own blood? then why is he more consenting or guilty to their punishing (due by law for these actions) who only declareth them truly as they are; more than he that confesseth (being in deed guilty) may be said to be guilty of his own death? It is a subjects duty (most especially in causes not capital to himself) if he be required by authority; not to dally, nor to lie unto the Magistrate, but to tell the fact truly as it was; whomsoever beside, it may concern. Now, if thereupon, either the Magistrate punish it where he ought not, or more grievously than law permitteth; or if the law punish that as a crime, which is a virtue the fault and guilt before God is not in them that declare the truth, but either in the judges, or in the law. Nay, to enforce this point a little further; I would ask this question of every of them that be of the side: A man being of necessity to plead either guilty, or not guilty to a crime capital unto him, or else to be pressed to death; if he be guilty of the fact, and yet (happily) he knoweth there can be no pregnant (no nor any likely) evidence brought against him: whether in foro conscientiae, without any sin, may such a man plead not guilty unto the matter of indictment? for the time, place, and other words of form and course, are not traversable. on the other side, if (in this case) he plead guilty (being so in deed) whether is he (thereby) guilty of his own death, or not? But if for avoiding of sin before God, such one ought (in conscience) to plead guilty, rather than lyen; and yet shall not (thereby) be made guilty of his own death: why shall the declaring of the truth, touching other men's actions, make him that revealeth it (being charged thereunto) guilty or consenting unto their punishments, how unjust soever (otherwise) they might be surmised to be? for if any man's faults may be spared, a man might most lawfully spare himself: quia Ordinaria charitas incipit à seipsa. And to press this reason (à Paribus at least, if not à fortiori) a little further: If such a man should choose rather to be pressed to death for standing wilfully mute, and not answering directly unto either; should he not de iure poli (even in true terms of Divinity) be accounted guilty of his own death, & to be (in the sight of God) a murderer of himself? the very like therefore is to be judged of these persons, viz. that their punishment (as convicted of the crime) is most just; that their blood is upon their own heads; & that none are causes of the punishment inflicted upon them, but themselves; for standing obstinately mute, without direct answering (in form of law) as they ought: though it were admitted, that such their actions, whereof they be interrogated, were all good, and they innocents. And as the revealing of other men's actions (when we are duly charged) maketh us not guilty, or consenting to their punishment: so our refusing to answer, neither is any means (in deed) nor yet is so appointed of God, to serve for their deliverance. For God will not allow to have innocents delivered, by our disobedience to his Lieutenants on earth; nor by concealment of any truth, expedient to be known, & (according to law) commanded to be declared. And therefore the place of the proverbs by them 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 deliver but the very plain truth (how unjustly soever the magistrate may seem to deal afterward) yet shall not the discoverer of the truth, be a partaker of the magistrates sin. For it is but he 1 Proverb. 24. ver. 8. which imagineth to do evil, whom men shall call an author of wickedness, as is recorded in the same Chapter. The other place out of the Acts is nothing like to the matter & case, that we have in hand. For Paul was not there charged by authority, to bewray any thing he knew against Steven, much less to deal at all in that action. But he (willingly) as one forward of himself and of a malice against the very profession (which he then detested) did thrust himself into the cause, and rather than he would not be some stickler in it; he thought good to do some office of kindness unto the torments & executioners of that holy Martyr, though it were but by keeping their clothes: & thereby he directly, gave approbation and consent, unto Stevens death. Yea, this their opinion is without any other like example in any text of Scripture; except perhaps they will gather it from an observation and note pretended to be collected from the next Chapter following. For I find an opinion collected thence, which jumpeth with theirs, in this behalf. 1 Rhemish Testament, in annotat. cap. 23. Act. A. post. ver. 12. If thou be put to an oath (saith that note) to accuse Catholics for serving God as they ought to do; or to utter any innocent man unto God's enemies and his: thou oughtest first to refuse such unlawful oaths. But if thou have not constancy and courage so to do, yet know thou that such oaths bind not at all in conscience, and law of God: but may and must be broken, under pain of damnation. They will not confess, that they have sucked this opinion from hence: and they may not be endured to flap us out with T. C. their old dog trick; and to say they borrowed it not of the Papists, but observed so much themselves, by reading of the Bible. For this were both to justify their own; and withal, this corrupt doctrine of the jesuits, as if they both (so well agreeing together) were arightly grounded upon the word of God. But they bring several places and examples, whereby they think this is proved. The officers of the children of Israel, that were appointed by Pharaohs taskmasters, to look; that the people should make as much Brick by day (and gather the straw themselves) as they did when straw was found to their hands; seeing that the people were not able to perform it, and yet were beaten for not doing it; did signify the impossibility & unreasonableness of this, unto the king. But the king gave them a resolute answer; that they should do it; upbraiding them, that it was but idleness, which made them pretend, that they would go to offer sacrifice unto their God. Which thing was the ground of Moses and Aaron's suit unto him, that the people might have leave, to go into the wilderness. So when these officers coming with this hard answer from the king; did meet with Moses and Aaron, they expostulated thus with them: Ye 1 Exod. 5. v●…. 21. have made our savour to stink before Pharaoh and his servants, in that ye have put a sword in their hands to slay us: meaning that their suit for going forth to sacrifice, did so discontent the king; that he would (in that respect) oppress them, even unto death. But what is this to purpose? doth this phrase of putting a sword into another man's hand so please these men, that they will imagine; by what occasion soever a wicked man picks quarrel to oppress God's children; that such a thing whereupon the occasion is taken (of necessity) is unlawful 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? Even in this place, the message that Moses and Aaron brought to Pharaoh (which occasioned such oppression to the children of Israel) was put in their mouths by the Lord. And therefore they sinned not, albeit this was like to have turned to be as a sword, to destroy up all the children of Israel: but rather these officers did offend, that thus did mutiny and grudge against those, who fulfilled God's commandment, and did but as they ought to do. Even so shall they offend likewise, that shall be displeased with such, as do what they are lawfully commanded; albeit trouble and punishment by that occasion shall happen unto them, that so take offence. So that this example doth make flat against their own purpose and intention, and can no way help them. Another example they bring, of 2 1. Reg. 1●…. ver. 4, 13. Obadiah: who hide 100 Prophets in two caves secretly, and sustained them with necessaries, when jesabel slew the other Prophets, whom she could hit upon. But this cometh far short of the purpose, for which it is brought. For who ever denied it to be lawful to show charity unto the Lords Prophets? then, there appeareth no commandment to the contrary, but that he might receive them. again, it doth not appear, that he was ever (by authority) charged to reveal them; or to tell his knowledge what was become of those Prophets: and therefore it is unlike to the case in handling. furthermore, it was (wholly) an unjust, wilful, and tyrannous persecution, without warrant of law, or colour of any judicial proceeding. beside, if he had been charged by jesabel to discover where they were, or had been commanded by her to relieve none such; yet had it been no disobedience towards the Magistrate. for it is not noted to be the doings of the king, but that jesabel slew them. Now, the king's wife is no sovereign; but a subject herself. Moreover the kill of the Prophets, for no pretence or colour of cause at all; is in itself so apparent an evil, as no man can have any shadow, to give a lawful consent unto it. Lastly, a man cannot gather a general doctrine (in a matter doubtful, and not plainly delivered else where in Scripture) out of any particular man's fact: because all the circumstances which then fell out, are not known. But most especially, an example can never serve to the overthrow of the general commandment, of obeying the Magistrate. And, vivendum est legibus, non exemplis. Out of the first book of Samuel, they bring three other examples. 1. Sam. 19 ver. 1. 2. The first, that Saul spoke to jonathan his son and to all his servants, that they should kill David: but jonathan saul's son, had a great favour unto David, and bade him take heed etc. The second, when Saul said to jonathan: Send and fetch David unto 1. Sam. 20. ver. 31. & 32. me, for he shall surely die: jonathan answered, Wherefore shall he die? What hath he done? the third, that when Saul commanded his servants to fall upon the Priests of the Lord, & to slay them; they would 1. Sam. 22. ver. 17. not move their hands, to fall upon the Priests of the Lord. To these three, one answer may serve, and therefore they are thus set together. First, these commandments (though of the king) yet they were, when he was enraged and in a fury; after the Lord was departed from him, & an evil spirit was come upon him. Again, it is apparently ungodly in itself for any to kill an Innocent, upon the tyrannous and unadvised commandment of the king; even without all colour of any lawful judicial course. Lastly, David was known unto them, to be afore appointed, yea, & their anointed king from the Lord; howsoever Saul was tolerated de facto to continue in place: till the measure of his iniquity was fulfilled. And therefore (in this respect) was it unlawful to kill, either him, or those that favoured him; especially the Lords Priests: whose linen Ephod should be a protection unto them, against Ibid. ver. 18. all such precipitate executions: where neither cognisance of their cause, nor any due conviction and judgement, was precedent. Another example they bring, of the mid wives of the Israelites, to prove their intention. It is thus written, they feared God, and did Exod. 1. ver. 17. not as the king of Egypt commanded them, but preserved (alive) the men children. This objection carrieth his answer with him. For it is said, they feared God, & therefore did not herein, as the king commanded: noting unto us, that the commandment was such, as could no way stand with the fear of God. There is no Prince in the world to be obeyed, when he commandeth any thing directly forbidden by God: for it is better to obey God then man. The Prince is no God, nor yet God's Lieutenant, but a mere man; in that which he commandeth directly contrary to God. That this was of that kind, it appeareth: for to kill, is (manifestly) by the moral law of God & nature, forbidden. Yet this hath his exception: viz. that it is no murder, when we execute the penalty of law, upon murderers & other wicked persons, duly convicted & condemned. For he that Gene. 9 ver. 6. sheddeth man's blood, his blood shall be shed by man, saith the Lord. But there could be no colour or appearance of any actual wickedness in children newly borne, why they should be executed: being but by a general judgement condemned most wickedly and tyrannously; even before they were. non censetur existere (saith the law) qui adhuc est in utero matris. Now let us compare these last four examples, with the scope and purpose, for which they are used. The very act of murdering a person notoriously innocent, in that he is neither convicted, nor condemned, is malumper see: a thing simply and absolutely in his own nature evil, without any further circumstance. But to declare what a man knoweth to be done by another; the very authors themselves of this opinion, must needs confess to be sometimes lawful and requisite: and therefore they must at least grant it to be medius Actus: such as (by circumstance) may be lawful; howsoever by the circumstances of this case (as it is propounded) they will (perhaps) hold it unlawful. And therefore there is such dissimilitude and diversity betwixt these examples, and that which they hold; as they can never serve this purpose. Therefore to fit their turn, in the very point of the issue, they must prove unto us: that it is ungodly, for any man (though charged by lawful authority) to declare his knowledge of another man's actions; if he that is urged so to make declaration, do judge aforehand; that the Magistrate minds to punish such action, either where he ought not at all, or in other sort, than God's law permitteth. For this purpose, they allege as strongest, the example 1 josh. 2. ver. 3. & 4. of Rahab: who would not tell the king of jericho, where the two spies of Israel were; though she were by him commanded to bring them forth; and she is commended for it, by the 2 Heb. 11. ver. 31. holy Ghost. In answer hereof I say: we read not, that the king asked her, whether they were there still, or not; albeit she 3 josu. 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 been so asked. Secondly, by 4 Heb. ibid. & josu ibid. V. 10. faith (upon hearing the miracles that God had done, and wrought for the children of Israel) and by special revelation; Rahab knew, that God, 5 Ibid. ver. 11. even the God of heaven above, and earth beneath, whose the earth is, and the fullness thereof, and who (according to his providence and wisdom) doth translate and establish kingdoms, as it seemeth best to his divine pleasure: had afore that, given that whole 6 josu. Ibid. V 9 land, unto the children of Israel. So that in very right and truth, she did owe no more obedience to the late king of jericho; but was by God discharged thereof, and lawfully might (as she did) submit herself, & capitulate (for her safeguard) with the ambassadors of those; to whom (of very right) her subjection then belonged, and therefore could not (without sin) have betrayed them, being sent from joshua her lawful sovereign; into the hands of an usurper; whom she knew perfitly the Lord had deposed, & 7 Ibid. ver. 13. meant soon after, to destroy accordingly. This interpretation is evidently & very strongly confirmed by that place of Scripture, where she is, for this, commended. By 8 Hebr. ibid. faith (saith that place) the harlot Rahab perished not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, with the disobedient, when she had received the spies peaceably. If then the rest of jericho were disobedient (in respect of which, Rahabs obedience & peaceable receiving of them are commended) & therefore they perished by the hand of joshua & the people: is it not manifest, that joshua was their lawful Magistrate in right, and that they ought to have taken knowledge thereof, and to have obeyed him, at their own perils? Lastly, there is in this fact something extraordinary, as done by spectall economy, which, by us may not safely be followed. As the lie that she made, in 1 jos. 2. v. 4. & 5. saying, she witted not whence they were, and that they went out in the evening. And likewise, it is not to be presumed by any subjects in these days (when as miraculous, and special revelations are ceased) to adjudge themselves either wholly, or in some particular actions & circumstances, to stand discharged of their obedience and allegiance towards their Sovereign or undermagistrates; when, and how far, themselves will fancy. For if by this and such like extraordinary examples (or by that of Obadiah's hiding of the hundred Prophets) such presumption were lawful or tolerable: what a goodly colour might all disobedient and rebellious subjects have, namely unnatural fugitives over sea, jesuits, Seminarimen, recusants, concealers & harberours' of these, and such like boutifeux & bellows of sedition, for all their godless attempts? are they not, or at least will they not pretend, to be as assured and resolute of the goodness of their cause, as the Disciplinarians are touching theirs, & their designments? so that for these men, that would be counted most sincere professors of the Gospel, to hold the like dangerous positions, & to seek to confirm them, with the same & no better reasons and examples than the Papists do theirs: for my part, I do reckon it to be the practice and part, neither of grounded and judicious Divines, nor of well advised or dutiful subjects, quorum vestigijs insistunt, eorundem exitus perhorrescant. But they say further: that by such oath, they should be drawn to discover unadvised speeches, that sometimes pass men in private fellowship, as at table etc. or such as come unto them for counsel, and for private resolution of their consciences. First, there is no man bound to answer more matters than be contained in the Article or Interrogatory, whereof he is examined. But if any matter be therein laid down in such sort, as it leadeth (pertinently & directly) to such discovery: then is it likely, that by some means it is detected unto the Magistrate afore, and by him thought expedient (for some necessary public cause) worthy of such Enquirie. Again, if such private talk or ask of counsel have been concerning some plat or practise laid or to be laid, that shall (in discretion) be adjudged by the Magistrate expedient (for the common wealth's sake) to be known and discovered; and therefore if they shall inquire directly of it: I can not see, how it may stand with any man's duty to God, unto the Prince, unto Laws, & to the Common wealth to conceal it, being charged to the contrary. But of other secret speeches, treaties, and resolutions of men's consciences; no Magistrate is of so slender discretion, as to inquire; nor can by law (though he would) for want of those indicia and special presumptions and inducements that are required, to ground an enquiry upon: and therefore this is but matter devised, ad concitandam & conflandam invidiam, against lawful authority. They allege also, that by their discovery, some that be very poor may be undone: and that the most of the matters and persons being already known unto authority, there can be none use for them to appeach any, but to alienate their mutual affections, and to have one another in jealousy. This is very lose & simple, to reason upon a casual event which may happen, thereby to prove a thing unlawful. for of a good matter, an ill event may, and doth often fall out, & è converso. Careat successibus opto, quisquis ab eventis facta notanda putat, could the very heathen Poet say. And why should a man withdraw his duty to Magistrates, only for particular & private respects touching himself, and some few other private persons? Whatsoever may happen, let him do as he ought: Fiat justitia, & ruat mundus. Particularly to the first, why should any man pity his poverty, that pitieth not himself, but wilfully runneth into danger of laws? & shall a man hold a poor man more dear unto him, than the common quiet & peace of the Church and Common wealth both? The second part implieth a contradiction in itself: for if the matters and persons were sufficiently known; then (in truth) were it of no use, for the Magistrate to inquire further, yet if they be so known already, then what wilfulness is it in these men, thus obstinately to persist to their own hurt, and yet to do others no good thereby? They object further, that to discover their brother's secrets, is condemned as a fault, by the Holy ghost: for 1 Prou. 11. v. 13. he that goeth about as a slanderer, discovereth a secret, but he that is of a faithful heart concealeth a matter. And seeing they have met in some men's houses that did it for good affection and opinion unto them; if they should discover such, it were a very unthankful requital (they say) towards them. And for that their fellowship is in the truth, & the course they walk holy, therefore (even by the law of love and fellowship) they may not detect one another: for that were a note of a false brother. As for the truth of the matters that they meet about, & the holiness of the course they walk, it is not of this place to discuss: how holy and true soever it is, it dare not look out at noon days: and yet we live in a state professing the Gospel. Num sic Apostoli? num sic Martyrs, & c? but the more true & holy it is, the less ought they to be ashamed to reveal it (being called into question for it) as is signified afore. Here (we see) that the law of their love and fellowship, and ius hospitale, towards such their private friends, as have received them; is by them, more esteemed & accounted of; then either the public laws and statutes of the realm, or, than their duty to the Christian Magistrate, and to their country, quae 1 Cicero office li. 〈◊〉. omnes omnium in se charitates complectitur. As for the discovering of a secret, of concealing a matter, & false brotherhood there spoken of; who doth not see, that it is meant of needless, slanderous, malicious, and treacherous bewraying of our friends, or of others secrets; and not of any judicial deposing of our knowledges, when we are brought before a Magistrate? For if this were not lawful and godly, then might no witness testify a truth in any matter whatsoever, that is not known abroad afore, or unto the Magistrate: for that it can not but turn to the declaring of some matter, doubted of or not perfitly known. The common translation fortifieth this interpretation, viz. qui ambulat fraudulenter, revelat arcana, qui autem fidelis est, celat amici commissum. Therefore Aquinas 2 The. Aquin●… 2. 2. expounding the true meaning of that place of the Proverbs, saith: that such matters as tend to the corrupting either of the souls or bodies of a number; or to the great detriment of any one private person, a man that knoweth them, is (in conscience) bond straightway to reveal them. Thus far in answer of their reasons, who (of such as profess the Gospel) gave the first example of disobedience in our days, by refusal to take oath, in this respect; viz. for that they were urged to testify of their fellows, aswell as of their own actions, whereof they were interrogated. But an example of William Thorpe, who is said by the Treatisor to have refused an oath, about 160 years since, upon this consideration amongst others: doth most aptly (I think) take his place here. For when 1 Fox. fol. 146. 147. 148. 1. editi. Archbishop Arundel (before whom he was convented, under pretence of Lollardie) offered him favour, if, amongst other matters he would be sworn to forsake his opinions, to withstand all such as should hold the same opinions, & (in case they should not be reform) to put them up in every Diocese, where he came unto the Bishops: he refused this favour upon any such condition: because, he would not (as he said) become every Bishops espy, and Summoner of all England: nor give such offence, as to be accounted to have forsaken the truth. In answer whereof, I say, that this was but a favour voluntarily offered unto him upon that condition; and that oath was none otherwise exacted of him, nor yet by law might be exacted. Insomuch, as no man is (by law) bond to make any such promise, or to enter into such a course. Again, there was no special opinion in particularity charged upon him, which he should be sworn to forsake, & should detect others of; except he should be bound to forsake all that he had learned in Scripture concerning the fear & service of God. and therefore it is nothing like unto the case, against which, we do here argue. For those Innovators, which were authors of this opinion, had particular articles concerning their own, and others actions, treaties and conclusions objected unto them: which were also aforehand conveniently (though not in every necessary particular) known, and discovered afore unto the Magistrates. unto which (albeit after many tergiversations, and much a do) they answered at last in the starchamber upon their oaths that which touched their own facts only: yet unto no more thereof would they answer, than they presupposed & gathered to be afore known, sufficient for their conviction, though they should have concealed it. But what other company they had, than those who were defendants at that time, or in whose houses such Synods, and treaties were held; they pretended themselves bound in conscience, not to answer. And yet the judges of the land, twice, or thrice overruled it, and signified so much under their hands; that (by law) they ought, and were bound, to answer the Interrogatories preferred concerning each of their complices and partakers. It may be, that the Notegatherer also by one of his quotations, meant to enforce 1 Tindal. in respon ad Moru●… pag. 309. tindal's authority against us, in this behalf. For he writeth, that if a wicked judge ask him that hath sworn, of things hurtful to his neighbour, and against the love that is in Christ: then he must repent that he hath sworn, but not sin again to fulfil his oath. I make no doubt, nor do gainsay it, but if mine answer shallbe, both against the love that is in Christ, & also to my neighbour hurtful: that an oath cannot tie me, to answer in such a case; yet if tindal thought, the whatsoever may bring punishment upon my neighbour is of that nature: then must he give me leave to doubt of the soundness of his judgement herein; no less then, the Notegatherer himself will do upon the points afore touched; and many other contained in Tindalles works; and no less than he will do upon the Rhemish note agreeing wholly with tindal here, and touched by me afore. He seeketh also to overthrow (howbeit but general oaths, which none defends) by comparing them to the doings of Longland sometimes Bishop of Lincoln, against whom he most bitterly inveigheth, for constraining children (by oath) to accuse their parents etc. of heresy: whereof some (he saith) choose rather to be forsworn: and bringeth Master Fox his condemnation thereof. But I guess what it is which chief pincheth the man in this sort: belike, because certain of his Clients whom he would patronise; were lately required to discover their complices in their disciplinary assemblies. I can easily yield, that where great presumption or peril of perjury is, rather than a man will discover a truth, that there, and unto such, it is no good discretion to minister an oath. but especially against the life of those, who attain so near unto us in proximity of blood, or other no less strong affection. For the civil law saith, Filius non torquetur in caput patris; a child ought not to be tortured in a point of peril, unto his father's life. And the like reason, which is in torture, may (by some perhaps) be thought to be also in an oath. against his father's life. But we may not make this a general doctrine; as if in no case whatsoever a child, or such like might be examined in a point capital to his father etc. For if the matter do concern treason against the Prince, or the common wealth; I make no doubt, but that, a man may, & aught to be tortured, even against his natural father, and others, how near soever. But if this be lawful for treason against man, much more then, for that which is heresy indeed; being no less than treason against the divine majesty of God himself, who is King of kings, and Lord of all lords. Thus far touching their reasons, and allegations from d●…uinitie and divines. So that all their objections being refuted, I will now press them in this point, but with one pregnant place out of 1 Leult. 5. vers. 1. Leviticus; which is also handled more fully by me in the 11. chapter of this third part, viz. If any have sinned, that is, if he have heard the voice of an oath, and he can be a witness whether he hath seen, or known of it. if he do not utter it, he shall bear his iniquity. But these (of whom we speak) have heard the voice, and form of the oath, have been adjured in God, and in her majesties name; and by authority charged and recharged, and they can bear witness, for they have seen, and know the matters (whereof the charge is, as themselves do confess) and yet they will not utter them in particular, but obstinately, without any good ground (as may appear) do persist in refusal: and therefore they do grossly sin, and shall bear their own iniquity, indistinctly; whether the matters to be uttered be commendable in their brethren, or not; & whether they shall (thereby) be brought into trouble, & unto punishment, or otherwise. Much might be alleged out of the common law, and statutes to prove thereby, the lawful exacting of a necessary oath, for discovery of our christian neighbours crimes and offences; aswell such of them, as be but mala quia prohibita; as those which in their own nature be evil, and be therefore forbidden. As that grand juries at Assizes, & Sessions are urged by oath to inquire, & present treasons, murders, & other felonies, breach of the peace, violation of sundry laws & statutes, common Nuisances etc. That if a 2 10. H. 6. 7. tythingman, etc. refuse to make presentment, the steward of the Leete may amerce him: And in an action of debt brought he shall not wage his law, upon that amercement. That by a 3 19 H. 7. ca 14. Statute, chief constables, and bailiffs were to give evidence upon their oaths, touching unlawful retainers within the precinct of their offices: and upon concealment, were to be punished. with such like a great number. But because the Innovators, who are now the most especial defenders of this opinion, both by argument & practice, do make no account at all of any human laws: whensoever they list to fancy unto themselves a condemnation & contrariety of such laws unto the word of God, as in this case they do: therefore I will no further trouble myself, or the Reader, in that course. CHAP. XV. Their arguments are answered, that condemn the ministering & taking of an oath as unlawful, because they have not distinct knowledge given unto them of every particular before the taking of it, & the like course (by examples) is approved lawful, and godly. ANother challenge of theirs, made unto the manner of proceeding against crimes in Ecclesiastical courts (& concurring with the very tender of the oath) is: for that they are urged to take the oath to answer truly, before sight and perusal of the articles & Interrogatories by them had; whereby they might have special, and distinct knowledge, of every particular, therein contained. The cause why this exception is by them taken, is not for that all such refusers do purpose to take the oath, when they shall have seen the articles; but if they shall find them to be such as they think either cannot be proved (in case they shall deny them) or to be of that sort, as they can easily wade through with them: then some of them (heretofore) have not stuck, nor made any bones to take their oaths, whatsoever they will do now. And therefore certain of them will not so much, as promise by their word to take oath, to answer them after perusal. So that it may appear, this is but a quarrel picked by them, (of purpose to advertise their complices how far they also may be touched) rather than that there is any serious matter of scruple herein, which they stand upon. Some of the causes why it is not thought convenient (by those that be in authority) to let them always know the several particularities aforehand, & so to leave it in their liberty either to refuse, or to take oath afterward to answer them; are sufficient, and weighty. One is, because it is sometimes impossible in itself; for that one Interrogatory often riseth of an other, especially where a man answereth affirmatively: so that the oath cannot conveniently be in each case restrained unto such of them, as are set down afore; seeing necessary occasion of circumstance ministered, may lead unto a further examination. Another is, because (as some of them have done when this favour hath been showed) they use it but as a means, to instruct their confederates for concealing, or disguising of the truth: which may appear, for that after perusal, they themselves remain as obstinate in refusal, as they were before. And albeit no law (that I know) doth of necessity require articles to be showed to them, at such proceeding, before they resolve, whether they will take the oath, or not: yet if any will swear (afore) but thus; that he will peruse them, and after he hath perused them, he will then take the oath, directly, and truly to answer them, so far as by law he is bound: assuredly then, the sight of them aforehand neither hath been, nor will (I think) at any time hereafter be denied unto any, in such a case. Some reasons I have heard to have by them been used, to prove it ungodly. It is thus written in the ¹ Proverbs; He that answereth Prou. 18. ver. 13 a matter before he hear it, it is folly, and shame to him. Much more than (say they) is it folly, to swear to answer a matter, before a man hear it. In very deed, it is not possible directly to answer any matter, before a man hear it, and know what it is. But the meaning of the holy Ghost there, is to tax such; as upon a pretence, or for ostentation of pregnancy of wit, and quickness of conceit, or upon some other rashness; will take upon them to understand a matter and to answer to it, before half the tale, and material points of it, be opened unto them. Whereupon grossly (ofttimes) mistaking the whole matter; such a man is shamed, and folly is also justly imputed unto him for it. Besides; this their collection hereof is out of the rule, that is in controversy, and practise. For there are never any sworn to answer a matter before they hear it. But (indeed) they take an oath (aforehand) to answer the matter truly, when they shall come to their examination: and then they do hear all the matters objected, before they need make answer unto them. The grand Inquests do take alike, yet a lawful oath; which is, that they shall diligently inquire, and truly present all offenders against any such point, as shallbe given unto them in charge, which charge is given, after their oath is taken. Their next reason is, that for a man to take an oath; without a sure persuasion that it tendeth to 1 Rom. 14. ver. 〈◊〉 glorify God, and to further his brethren, is sin: because whatsoever is not of faith, is sin. And that this oath is such for that a man knoweth not what the matter is, whereof he taketh his oath. Herein, the assumption is to be denied, & prosyllogism or reason, which is brought to prove it: for it is of, and also according to every honest man's faith, to believe himself bound in conscience, to obey the positive laws of his country (which require him to take such oath) so they be not contrary to God's commandment. And albeit every particular neither is used to be, nor yet is meet, nor (indeed oft times) can be aforehand declared, which is requisite to be asked of him, as one question will grow of another: nevertheless, the general heads are signified & opened unto him. and it is withal declared, that he shall but answer matters of his own fact, or knowledge: that they touch neither his life, nor limb, & that (if he think good) he may challenge any of them at the time of his examination, as not being bound by law to answer them, & he shall therein (if law do not bind him) be allowed to refuse. For the judges of each court are appointed to yield unto every man indifferent justice, according to law. So that the examinate may have as sure persuasion hereof by this course: as if every particular were read unto them. Their third reason is: that this kind of oath is infinite, and therefore a snare to a man's conscience, and not like the oath that Abraham 2 Gen. 24. à princip. usque ad versum 9 gave to his servant. Though it be not like in this point, because 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 promissory; yet the performance of it is assertory, by telling the truth of matters, either past, or present: nevertheless such dissimilitude doth not hinder, but that this may be no less lawful, than that promissory oath was, which Abraham made Eleazar his servant to take. There is none infiniteness in it: for it is not general, either concerning his own, or other men's thoughts, words, or works, as very untruly, & slanderously is (by some) given forth: but it hath sufficient certainty, upon the certain reference unto articles afore exhibited; which also are then declared, to contain particular diducing, & laying forth of such, & such especial misdemeanours, with some of their pertinent circumstances, of time person, place, & manner. Their fourth & last objection is: that a man ought to swear, 1 jerem. 4. vers. 2. the Lord liveth in righteousues, in judgement, & in truth. This judgement, & discretion (they say) they cannot use in such swearing, because they know not every particular aforehand, whereunto they must answer. And this objection is also propounded and enforced by the Treatisour. But (if it be well weighed) it is a childish fallacy, 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 inconveniences, & infinity of trouble, which would else grow unto the judges) 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 given openly in Court, yet the very examination is dispatched afterward, by the examiner: and then it is acknowledged before a judge, as in divers Courts temporal is usual, in like cases of Articles or Interrogatories. The Iudgem●… (spoken of there by the Prophet) that aught to be used; is not to be referred only to the very action of the oath, when we take it corporally: but it is specially meant of the advised maturity, & consideration that we ought to use; in the depositions & setting down of our answers. so that the not knowing of every particular, when by oath we only promise to answer truly at the time of our examination, doth no way impeach or hinder the judgement, which is meet, and required to be used, in our answering: at what time, we may consider fully & deliberately, of every 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 unto an oath, viz. that we swear in truth. for in the very action of taking the oath, that truth there meant, cannot be used; but must be showed by the upright and faithful answering, at the time of the examination; yea though the examinate know them all so well, as that he had them without book, because, as he that giveth the oath, doth but charge; so by the receiving of the oath, a man doth but promise to answer truly, afterwards. And a promise doth neither affirm nor deny the truth of a matter: but is to be made a true vow and promise, by the due performance of it, according as the promise runneth, and it is truly meant. It may be, that one of the Notegatherers quotations out of tindal, was by him set down to enforce also this point; namely where he thus writeth: If 1 Tindal in resp. ad 3. lib. Mori pag. 309. a judge put a man to an oath, that he shall answer to all, that he shallbe demanded of, he ought to refuse. Is it any marvel that he which holdeth a little afore, that no judge ought to make a man swear against his will in any case; should also infer thereupon, that such a general oath, as this he speaketh of, which no law or practice (simply) requireth, need not be taken? But what is this to the refusal of oath, when it is not general, but restrained unto certain articles, and points; the heads whereof are also opened afore unto him, who is to swear? or what serveth it, to justify a refusal; for that the defendant may not first peruse every Interrogatory particularly, before he will resolve whether he will take the oath, or refuse it? The Treatisor also allegeth (to this point especially as I gather) a saying of joh. Lambert. Martyr in his 2 Fox pag. 565. 1. edit. answer unto the 41. article ministered unto him: The fault which (in this behalf) he findeth, is; for that a man is charged by virtue of the contents of the evangely, to make true relation of all, that they shall demand of him: he not knowing, what they will demand, neither whether it be lawful, for to show them the truth of their demands or no: for such things there be, that are not lawful to be showed. 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 swear to bewray any other, that I have known to offendin that vice; I suppose it were expedient etc. not to follow their will etc. He also further findeth fault with such judges for that sometimes not knowing by any due proof, that such as have to do afore them, are culpable; yet will enforce them by an oath, to detect themselves, in opening before them their hearts. For answer hereunto: First there is none that defendeth any such general exacting of an oath, to answer whatsoever shall be demanded. Besides, what is here any way sounding to the condemnation of ministering an oath for answering to particular Interrogatories. touching certain known points, opened before unto the party? Seconndly, the judgement of Lambert, that a man is not bound (in distinctly) to bewray whomsoever he knoweth to have offended, is also allowable. For a man being so generally asked, is not bound (by any law that I know) to take oath, to bewray whatsoever he knows, touching all other men's faults; so they be merely secret, not manifested at all abroad, nor bringing any scandal or apparent danger, either to the church or common weal, or unto the souls of a multitude, & where of he may & ought (in charity) presume; that the offenders be repentant. Thirdly, I take this judgement also to be very sound both in divinity and law; that a man may not be urged in any human court, to disclose what he thinketh in his heart: unless by word or deed, it be come unto some overt Act. For if it come so far, there may be then sundry occasions, why a man should be examined, what he thinketh or believeth. As if a man will allege judicially something, & desire it to be admitted which ought so to be, in case he propound it bonafide, & not calumniously: the judge may here urge him, to declare by his oath; whether he believeth the said matter to be true, & that he thinketh it may be proved. Likewise, he that shall be detected to have spoken like an Atheist; or an Heretic against God, may be examined upon his oath touching his belief. neither is the bewraying of himself herein, capital unto him, unless he shall wilfully persist in his error, and blasphemy. and therefore I think, that by the laws and policy of this realm, it is otherwise in a person, which hath once abjured, & is again relapsed. & that he ought not to be examined by oath, touching his heresies by him uttered and holden. because if he be convinced to have relapsed; he ought (by law) to be burned, notwithstanding he shall then again pretend revocation of his error and hearty repentance. Out of this answer of lambert's unto that article; I observe, that the Treatisour (in my copy at least) hath some what changed these words, viz. and none could be found in me, if then they should require me, etc. for instead of if then, he hath put these, viz. or if: because he would not have them sound any way, as if Lambert meant, that a man might be sworn touching the crime of fornication imputed to himself; albeit he were not bound to bewray all others, whom he knew to have offended that way. Besides, by lambert's said answer it appeareth, that he thought, Magistrates might cause subjects to swear (though against their wills) & that they are bound to obey them therein: which he exemplifieth by that which Solomon might have done with the two women, which contended about the child; if otherwise he could not have found out the truth thereof. And he concludeth his answer to that article thus: viz. that he thinketh it lawful at the commandment of a judge to take an oath to say the truth: specially if the judge require it duly, and in lawful wise. whereby we see Tyndal's judgement by Lambert to be controlled, where he writeth absolutely; that no judge ought to make a man swear against his will. last, Lambert there concludeth, that a judge may cause a man to make an oath in any other case convenient, and that also for purgation of infamy, when any infamy is lawfully laid against a man. So that the Treatisour himself, who condemneth all such oaths of clearing, as purgations poisonful, for that they may induce perjury; is by this his own allegation, (which he may notrefuse) well confuted. The Notegatherer avoucheth also three examples, where men were proceeded with, for matter of pretended heresy; and yet had a copy of the Articles delivered unto them. But he telleth not, whether they were afore that, or afterward sworn. But howsoever some were then thought good to be proceeded with; yet cannot this prove, that it was holden to be unlawful, to do otherwise. For I have also known the like favour used, unto sundry pretending scruple in this point: who (in very deed) little deserved it: for they were never the nearer afterward, to make oath to answer them. The equity of this proceeding, yea far above the lawful practice of courts on the other side the sea, in their proceeding against crimes (even capital) by the course of the Civil laws may appear; by comparing of them in some points together. They have there, two Processes in most criminal matters: the first is called processus informatiws, which containeth all the Indicia, or the Evidences, presumptions, & sayings of those, which can testify against the party inquired of. These be taken aforehand for the private instruction of the judge, even in the absence of the party, & serve for to ground his Enquirie. The other, is the very Process criminal or punitive, whereunto the party convented is to answer: and resembleth much our Inditements at the common law. which inditing in France, they call making a man's Process. Now, it is by 1 Conrade. fol. 255. & Foller. in Pract. crim fol. 165. nu. 9 & jodoc. in Pract. fol. 24. nu. 18. Maranta in Specul. fol. 8. nu. 8. a general custom observed (where the Civil law in that behalf hath place) that the supposed delinquent is interrogated, and examined; and the witnesses also (after production in his presence) are again upon their oaths repeated, in the process punitive: before the party may have a copy of the euid●…nces and presumptions, that were taken against him; upon the process informative. And it is testified; that the judge should do evil, if he should otherwise observe it. For 1 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 received interpretation, & approbation of equity, by continual practice, & long custom; ought not by any singular person, to be changed. The reason of this course by them holden is weighty: For 2 Clarus lib. 5. § fin. q. 49. otherwise by the publication and copies of the Process Informative given up unto them; the supposed delinquents (being instructed thereby, what Evidence is to be used and given against them) might, and by likelihood, would (for their own safeguard) practise with the witnesses; and either withdraw them clean away, or else suborn, and corrupt them. This Process informative; I mean the particular points of the evidence and presumptions (yea and sometimes also the witnesses names, that can testify, & may be used) in the court of Commission, and in ordinary courts ecclesiastical, are inserted into, and contained in the Articles objected. Now assoon as the convented party hath answered the Articles; in this Realm (of course) he is, if he will, to have a copy delivered; both of them, and of his answers made unto them before any witnesses be called, or used: albeit (indeed) great inconuevience of subornation (for avoiding punishment) might thereby happen, and be occasioned. So little cause have these men to complain, of any rigorous or strict course used towards them: as by the example of the general custom of the world abroad, might be followed. Neither have they any cause to complain hereof, as of a thing unusual: for not having (other than a general knowledge) of the matters against them, before they do swear. If that 3 c. qualiter & quando. ●…l. 2. de accusat. Canon be objected; viz. exponenda sunt ei illa capitula de quibus fuerit inquirendum, ut facultatem habeat seipsum defendendi: I answer; that in ecclesiastical courts of this realm, this is observed, even before the oath is tendered & after the party hath answered, he hath a copy not only of the heads of the matters objected; but of every particularalso. Howbeit this Canon distinguisheth not at what time these are to be opened unto him: otherwise, then when he is to use his defence: which (commonly) is after the witnesses be published: when as he challengeth and excepteth against their sayings or persons. But if the Civil law be also urged (to this point) which 1 L. unius. §. cogniturum. ff. de quastionibus. L. 3. §. si ad diem ff. de ●…e militari. requireth copies indiciorum of the inducements, or evidences to be given to defendants: I answer, that it is but before he is tortured; that he may have opportunity to answer, and to avoid such presumptions, before he sustain so irrevocable a damage: which reason hath no place in that matter, which we now handle. Besides, this rule hath many limitations, or excepted cases: For first it 2 Campeg. in addit. ad Zanchinun de heretic. ca 9 is otherwise, when the party inquired of, or accused, was afore that time of evil fame. Secondly, when a copy of them, is not desired by the defendant. Thirdly, when he purposeth no defence, but only would labour to prove the Indicia to be false. Fourthly, when the proceeding is by Enquirie, accord●…ng to the form of somestatute. Fifthly, where there may be probable fear, that the witnesses shall thereby be hurt, or prejudiced. Sixtly, when the crime is notorious. Seventhly, when the proceeding is of mere office. Eightly, when the defendant varieth & faultreth in his answers. Lastly, when he afore refused to answer to the Interrogatories. By all which we see, both that the said rule is to be understood of delivering copies, after publication of witnesses, & not before the defendants first examination: & also, that such disobedient persons, as refuse to answer the Interrogatories as they ought (though they were not proceeded with of Office) yet are by law debarred, from having copies of any necessity, otherwise then of courtesy. And if the oath to be taken were so general as they pretend, whereas it is (indeed by way of reference) very particular, & certain: yet they might find examples for approving of the equity of oaths more general than this; both in the laws of the Realm, & in the word of God: whereof all the particularities neither at the taking of it were, nor could be judged of, afore the oath taken. First, at the common law, is not the oath of jurors in the grand inquest at all Sessions, & assizes; to inquire, & present all within that shire, that be culpable of breach of any the laws & statutes which they shall have in charge (afterward to be given:) as large, yea and a more general oath, then to swear to answer half a dozen, or a dozen articles, or interrogatories remaining afore in court, preferred? By statute it is appointed, that 1 Statut de Exon. de Inquisit. super Coronatores. Enquirors against Coroners, shall make all the bailiffs swear, that they shall well, and faithfully do that, which they shall have in charge by the king and his Counsel, and shall conceal nothing of it. justices of Peace (by an old 2 12. Ric. 2. ca 7. statute of Richard the second) are to be sworn, duly, and without favour, to keep; and put in execution, all the statutes and ordinances, touching their Office. The like oath, and somewhat more general is appointed unto them by a later 3 27. H. 8. ca 5. statute, to be taken; viz. that they shall keep all statutes made, and to be made. The oath established to be taken by great Officers of the State and of justice (upon another occasion afore alleged) is also of greater generality. For it is 4 15. Ed. 3. ca 3. enacted, that great Officers about the king, and in his courts of justice, shall from time to time forward be sworn (when they shallbe put in office) to keep, and maintain the privileges, 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 now repealed statute against heresy was very general: and yet that point, thought agreeable enough, to equity. for this was not any ground of the repealing of it. By it was determined that the 5 2. H. ca 7. Chancellor, treasurer, justices of the one Bench, and of the other, justices of Peace, majors, and bailiffs of cities & towns, & all other Officers having governance of people, should make an oath; to put their whole power, and diligence to destroy all manner of heresies, and errors, etc. and to assist the Ordinaries, and their Commissaries: and them favour and maintain, when they shallbe required. The circumstance of time (in that the oath is tendered before the defendant hath particularly perused the Articles, or Interrogatories) is sufficiently justified by the like general practice in the starchamber, and Chancery; and in examinations criminal made by other judges and Magistrates. In all which, the oath (as I am credibly informed) is taken, before the examinates have any copy, or may peruse the Interrogatories, where written Interrogatories be used: and where they are not written, there is no possibility of knowing all (particularly) that shallbe demanded; insomuch as one question (necessarily) riseth upon the answers, that shall be made to the former. I read a report of the Canon law, where in an 1 15. E. 4. 〈◊〉. action of debt brought against the husband, and his wife for the wives debt before the coverture; the woman without the husband could not be suffered to wage her law. And is not this oath of the husband's part (though lawful) as far from that assured persuasion of the very truth thereof: and is there not as great want of the husband's certain judgement herein, as when an oath is taken to answer articles (in themselves finite, and certain) though particularly not perused by him afore? For nothing to the contrary can be here (I think) alleged; saving that it may be, the husband himself had, afore the wager of law, paid the said debt of his wife. There is a 2 2. H. 5. ca 9 statute (saith the Notegatherer) which requireth a copy of the Libel (put up in a court Ecclesiastical) to be delivered to the defendant: and thereupon is there a writ framed, and put in the Register, pro copia libelli deliberanda. It is very true which by him is alleged. the reason was, for that the defendants could not then procure prohibitions from temporal courts without their view of the Libel: which (in that respect) was sometime by judges Ecclesiastical denied; and the law (as it seemeth) was at that time so taken. but if the law were not only so taken, but so practised still; for my part, I should hold it more agreeable to reason, and that it would prevent many long delays, and other great inconveniences. Nevertheless, when one thing seemeth (cautelously) to be in demand by the Libel, and another thing (in truth) not incident to an Ecclesiastical court, is under hand shot at: then, and in such case only, upon apparent probabilities thereof showed unto the temporal judges; it cannot be thought inconvenient for them to grant a Prohibition, yea though the Libel be not viewed afore by them, nor contain expressly any matter, belonging to a temporal court. But seeing the statute speaketh but of a Libel; it cannot be extended to all articles or Interrogatories whatsoever, ministered in a Criminal cause: especially, where there is no likelihood, or colour, but that the cause is merely Ecclesiastical: or where it is handled by virtue of Commission under the great Seal of England grounded upon the statute. For if her majesties Supreme Royal authority and power Ecclesiastical granted by commission to others, be as highly vested in her crown as is her Temporal: then will it be probably gathered, both of them being in their several kinds supreme, and the exercise of them committed over to others, under the great seal; that the one of them is not to be abridged, restrained, or controlled by the other. In 1 Gen. 21. V 23. Scripture, by the oath that Abimelech ministered to Abraham, and which he took, appeareth; that thereby Abraham, was to deal well with him, (or as the Hebrew word is, not to deal falsely or lye) unto him, nor unto his children: and that he should deal well both with him, and the whole Country, according to the mercy and kindness (there) showed unto him. which points be of greater largeness, and generality; then that all the particulars (falling under that oath) can possibly before-thought or called to mind, at the very taking of it. By jacobs' 2 Gen. 25. V 33. requiring an oath of Esau, for confirmation of the sale of his birthright (a thing of greater generality, yea & consequence also, then Esau could, or did then consider) may be gathered; that an oath may be ministered, though every particular included therein, be not specially rehearsed: for this oath was approved, and stood ratified. The like general league, and covenant, that was betwixt Abimelech and Abraham; was also 3 Gen. 26. v. 29. & 31. made, & sworn, betwixt Isaac, and the said Abimelech. And albeit, it be not directly set down, that the king exacted an oath of the Prophet jeremy; yet we 4 jerem. 38. ver. 14. & 15. find a promise of the said Prophets then made (after the king's charge was laid upon him) of answering truly, what he should ask him: yea without expressing any particular matters aforehand, what the king would ask. Yet may we not therefore charge the Prophet to have done this without faith, or foolishly; unadvisedly, or without judgement. And it is sure, that a godly man ought to have no less regard to perform what he promiseth, & to deal truly (when by his Sovereign Prince he is in like sort charged) then if he were to answer it, upon his Corporal oath. So that we may conclude, that it is not unlawful, or ungodly, to take an oath: that we will perform some such matter, whereof every particular is not aforehand, or at the very time remembered unto us; or then can be called to mind or known by us, in distinct and special manner. CHAP. XVI. That after the party hath answered upon his oath, it is neither unusual, unlawful, nor ungodly; to seek to convince him, by witnesses, or other trial; if he be supposed, not to have delivered a plain & full truth: and somewhat also in approbation of Canonical purgations, with answer to the Treatisours objections against them. THeir next exception (set out afore in this order to be spoken of,) which this sort of men do make unto the manner of proceeding Ecclesiastical, (being of a thing ensuing after the oath and examination) is; for that judges Ecclesiastical do not always rest in that which is affirmed or denied, upon the party's oath: but do oft times proceed to a further enquiry, by examination of witnesses, upon the points denied by the party. A man might justly marvel; what should move them thus to require all other men to think so well of their single oaths, (and especially in their own cause) as if they had some indignity offered unto them, only because their own single oaths are not perfectly believed; but that proofs (by witnesses) are after made to convince them, of that, which is denied by them. But for this they bring also some pretence (as for the rest of their opinions) out of the Scriptures. It is said in the Epistle to 1 Heb. 6. v. 16. the Hebrews: that an oath for confirmation, is amongst men, an end of all strife. Whereupon they gather, that whatsoever they shall deliver upon their oaths, it ought to be final & peremptory, to conclude the cause of necessity, without any more ado. The use of the oath, which is in that place spoken of, is (especially and most properly) appliable, to two kinds of oaths. The first is an oath promissory, when (for more assurance of the promise to be kept) the parties agree, that it shall be taken. which thing is argued by the circumstance of the place, as being brought to prove the certainty of the promissory oath, which God made unto Abraham: and also by the word of Confirmation there used. Secondly, this place hath use very properly also, in an oath decisory: when 2 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, upon his adversaries own oath: which if he thereupon shall take, it maketh an end of the whole suit and strife. For in this case, he that so offered it, shall not be permitted to use any contrary proofs afterwards: because he made choice to have the whole cause in variance betwixt them, composed in that fort. It may also truly be answered to that place, that an oath indefinitely taken; is (in deed) a means provided, and tending to make end of all strifes amongst men: but not that in every cause and matter whatsoever, one man's single oath should therefore be sufficient. because many absurdities would follow of such an interpretation. as namely, that a man's oath in his own cause, should be as good and forcible; as any other two men's oaths touching the same matter. But the law saith: dictum unius, dictum nullius. One singular deposition, though of a witness (who is not interessed in the cause, and therefore the more indifferent) is not to be taken for a full proof. Then how much less should the party's oath (whom the law presumes to be partial in his own cause) be admitted for a concludent proof, especially to his own clearing or benefit? Besides, if such their interpretation of that place should be followed; then were this place contrary, to sundry other places in the Scripture; which is blasphemy to imagine. For 1 Num. 35. v. 30. one witness shall not testify against a person to cause him to die, but witnesses, therefore more than one. And by consequence, a man's own witness (in his own behalf) is not sufficient. At the 2 Deut. 17. v. 6. mouth of two or three witnesses, shall he that is worthy of death, die: but at the mouth of one witness, he shall not die. Again: 3 Deut. 19 v. 15. One witness shall not rise against a man for any trespass, or for any sin, or for any fault that he offendeth in: but at the mouth of two witnesses, or at the mouth of three witnesses, shall every word be established. 4 Matt. 18. v. 16. Likewise in the Gospel: by the mouth of two or three witnesses, every word may be confirmed. Furthermore, it is 5 john 8. v. 17. written (saith Christ) in your law, that the testimony of two men is true. 6 2. Cor. 13. v. 1. Moreover, S. Paul saith: in the mouth of two or three witnesses, shall every word stand. And 7 Heb. 10. v. 28. again: he that despiseth Moses' law, dieth without mercy, under two or three witnesses. And to 8 1. Tim. 5. v. 19 Timothy in like manner: receive none accusation against an Elder or Minister, but under two or three witnesses. Much less than (of any necessity) shall a man's own testimony of himself, and for his own benefit or clearing, be received for an undoubted truth. The blind Pharisees could see so much; that it was absurd, for any sinful man to arrogate so much to himself, that his own witness touching himself, should suffice. Therefore they say 1 joan. 8. v. 13. to Christ, whom they took to be but man only; thou bearest record of thyself, thy record is not true. And Christ himself signifieth the like, for he saith: 2 joan. 5. v. 31. If I should bear witness of myself, my witness were not true. meaning, that where there is no further testimony for a man, than his own: there is nosufficient cause, that other men should hold his speech for true, or rest in it, as certain. And therefore we see; that albeit the woman, whom her husband hath in Iclousie, is put 3 Num. 5. v. 22. usque ad 28. unto 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 trial, and she is also to drink the cursed water. which (by God's secret operation giving might unto it) was of force, both to reveal, and to punish her perjury (if she were forsworn) by making her (most loathsomely) to rot above the ground, being yet alive. Of further inquiry and the equity of it, after the oath taken, and denial or qualifying of the matter by the party: we have also sundry examples in the 4 l. 13. C. derebus creditis & iureiur. Civil law of the Romans. If an oath be taken by any man touching a legacy left unto 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 again revoked upon proofs, made against that oath; lest the laws should seem to permit a man to reap benefit by his own wicked perjury. So 5 l. admonendi. 31. ff. de iureiur. if the judge (and not the party) do tender and defer an oath to the other party, if by some public instrument, (viz. matter of record) or any like sufficient matter proof may afterwards be made, of the falsehood of such oath: it shall be revoked, and all that dependeth upon it. The reason hereof 6 Duarenus' 2. disp. annivers. cap. 33. is assigned, for that the parties own oath is but a kind of doubtful proof. Furthermore, 7 Auth. novo iure. C. de poena iud. qui malè iudicavit. Novel. const. 124. if either of the parties suing, do take oath that he hath neither given, nor promised any thing to the judge; yet if within ten months (after the sentence given) it shall be proved, that herein he hath sworn falsely: both the giver and the taker, shall have all their goods and lands confiscated, and shall be banished. So is that 8 jason in l. scimu●…. §. licentia. C. de iure deliberandi. num. 1. law also, after an oath is taken of the truth of an inventary: and (in respect of the proof) is daily practised. For any of the Creditors or Legataries, may take upon them to prove, that something is left out of the inventary. Which if they do, the heir or executor shall forfeit double as much by that law, where (in this behalf) it hath his place, and use. Yet that which in the two former examples is said of punishing; is 1 Alex. in Apostil. ad Bartol. in l. 1. nu. 1. ff. de bonis corum, etc. special unto those two cases, & to such like; as the law doth (specially) so determine of. For (ordinarily) the rule is, that if it happen, (and so fall out upon proofs afterward) that the defendant hath deposed falsely in his personal answers (the cause being moved by way of litigious jurisdiction) thereupon he is not to be punished as a person 2 Bossius. tit. de Periuris. nu. 3. perjured; but is left unto the vengeance of God, to fall upon him for it. And so is it usually practised in Courts of that nature. According unto which laws of inquiring by witnesses, after the defendants oath taken; we also 3 Ord. Cam. Imper. tit. de Purgatione. §. vnd so er sollich. find the customs and ordinances of the great Court of the Imperial Chamber in Germany, to be. For if a man clear himself (there) by his oath, of any crime imputed unto him; yet may any man take upon him to accuse, and to prove it afterwards against him. In which case (by those Ordonnances) if the party defendant happen to be convicted, then shall he be punished, not only for the principal crime; but for his perjury also that he hath committed, in denying it. This their municipal law, is agreeable to the Civil and Canon laws, there practised. For (as hath been touched afore, by other occasion) a purgation shall not so finally clear a man; but that if good proofs may be (after) made of the truth of the very crime itself, he shall be punished; both for that fact, & for perjury also: & therefore an oath of the party, yea, though his compurgatours do join with him (upon their credulities) is not final, nor can debar further proceedings. I had occasion afore, to allege out of the 3 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 unlading of merchandises, to be shipped out thence: & that there was no deceitful or forbidden wares amongst them. Yet (this oath notwithstanding) it is there further provided, that if upon inquisition to be made, any thing shall be found contrary to the declaration made by the party upon his oath; he shall lose his merchandise, he is grievously to be fined, and beside shall be punished as a forger, called Falsarius, in the Civil laws. By the laws of this Realm, such further trial is usually practised; and proofs are very often made to the contrary of that, which the defendant hath delivered in, upon his oath. In the Court of Chancery, if plaintiffs should always rest, and might proceed to no further proofs, after the defendant hath answered upon his oath: they should (for the most part) have very cold suits, and small relief or remedy could be given, by that high Court. The like is to be thought of the Courts before the Queen's Counsels established in Wales, and in the North parts, and of the Court of Requests. In that most honourable Court of the Star Chamber, the defendants do not only answer the Bills preferred (by virtue of their oaths,) but also unto sundry Interrogatories, serving to the like purpose. And yet after all this, it is thought necessary to use further proofs also by witnesses; and not to be convenient, to rest only upon the honesty and conscience, of the supposed delinquent. Besides this practice and long continued custom (quae est optimus legum Interpres) there be also statutes in the very point. By the statute of 1 34. H. 8. ca 4. Bankrupts in K. Henry the 8. time, authority is given to certain there named, to call and examine such as are suspected to conceal such offender's goods; and to examine them by their oaths, and by other ways (as in discretion they shall think meet) upon the specialty, certainty, true declaration, & knowledge of such offender's goods or debts owing to him: and if he show not the whole truth (to be after proved by witnesses, etc.) than he forfeiteth double the goods concealed. 2 13. Eliz. cap. 7. And the very like clause in that matter of Bankrupts, is established by a statute, made in her majesties time. At the Common law, the judges do not always rest in an oath of a party; but do sometimes inquire further of the truth of it; and do punish him also for taking a false oath, if he be thereof convicted. 3 P. 5. H. 6. ●…ol. 25. One was brought into the Court as a pledge, and did swear he might dispend forty shillings land by year: yet the Court rested not in this oath, but examined the matter more straightly; upon occasion that one then present, & dwelling in the same place, did affirm that the other might dispend nothing, and it being found, that he could dispend but twenty shillings by year, he was committed to the Fleet, till he had paid his fine. So that (both by divine and human laws) we see neither reason, equity, nor practise; for judges (necessarily) to rest in a man's answer made upon his oath; without proceeding to the taking of any further proofs, whereby, the lawfulness of that oath (which I termed partly of Purgation and partly of Enquirie) is more particularly also approved. But the Treatisour condemneth all Canonical purgations, as contrary unto equity: and therefore termeth them deadly purgations, not healthful but hurtful, and poisoning purgations, dangerously given for preservatives. Which if it were true, would take away not only our reason taken from proofs which may be made, even 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 be amiss, briefly to consider: & to add also somewhat, for clearing of laws and courts Ecclesiastical from unjustice herein; and for the defence of the use of purgations, by the parties own oath, etc. The conclusion which (in this behalf) he taketh upon him to prove: is, that proceeding ex officio, to forced purgations is hard, and unjust dealing towards men; and a great abuse of the name and majesty of Almighty God, cloaked and shadowed nevertheless, under glorious and painted glosses, etc. But he mistaketh the matter greatly, to think that those matters which (in the aforesaid doctor's schedule) he challengeth for no better than painted glosses, beautiful shows, and feigned pretences, were by them set down, for justifying of purgations: for they were (in deed) principally by them mentioned, to show the necessity of inquiring 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 would then remit the Reader unto that, which hath been spoken thereof, in the second part. For proof of Injustice thereby offered unto men; he presseth those Doctors with their own maxim, viz. Nemo tenetur * Vide cap. 9 3. part. seipsum prodere. But why he that is otherwise very presumptively detected; should not be driven to show, and declare his innocency upon his oath, or else yield to the detect (which they also add for the true understanding thereof) he showeth no reason: other than that, as a gloss confounding the text, It wholly (he saith) destroyeth that rule and principle. But how can it be verified, that this principle is thereby wholly destroyed: when as the detection made by fame, by denunciation, or presentment, etc. cometh from others, and is not a man's own detection of himself? therefore it is not so much as a limitation properly: but rather a true exposition, how that rule ought to be understood. By as good reason it might be said; that because a man, is not at first, by any course of justice, bound to discover the very fact against himself; that therefore, being called into question, and touched by great presumptions, and arraigned for it; there is no justice to urge him, to plead either not guilty, and so to lie; or else guilty, and so to bewray himself. For proof of an abuse of God's name and Majesty by purgations: he sayeth, to offer an oath unto persons defamed, concerning their own corrupt life; argueth a lightness, and want of good discretion in the Magistrate. For that he wittingly doth minister an occasion of perjury. I have spoken of this point (by occasion) afore: and I trust the Readers will pardon my necessary repetitions (sometime) of one matter in divers places: considering the Treatisour upon one reason, seeketh very often to build many several, & distinct conclusions. First no man ought by any occasion whatsoever, be drawn to go against his oath, or to perjure himself; a word (most properly) verified in an oath assertory, such as that of purgation is. Secondly, it is to be denied, that whatsoever a man of a bad mind, may take for an occasion to forswear himself; that in every such case, it is lightness, and undiscretion in the Magistrate to offer an oath. Which may appear, by decisory oaths, or wagers of law in actions real, or personal for lands and goods: being such things, which be as deeply (by most men) tendered, and affected; as their own good names, or honest reputations. Thirdly, it is too grievous a charge, to bring every lightness or undiscretion of a Magistrate, within the compass of abusing God's name & majesty; though this were admitted to be such lightness. Fourthly, no law presumeth so uncharitably, as though every one detected, or presented of corrupt life, were straightway, of necessity, and in very deed, guilty of such crime: nor yet is it to be intended, that most which be (in truth) guilty, will rather forswear themselves then confess the truth: considering the penalty inflicted by courts Ecclesiastical are not very grievous; and the chief end therein aimed at, is but an inducement unto, & a testification of the delinquents repentance. Fiftly, every one who upon a fame is detected or presented, cannot be truly said, to be thereupon defamed, infamia juris. For a fame may rise, yea, & very probable cause of suspicion of a crime, may also be given; where, nevertheless the fact is not at all committed. Lastly, it is not every person suspected of any crime, who in discretion of the Magistrate, is not to be urged with an oath: but it is such an one who is probably suspected; to be more likely to forswear himself, then to confess a truth. But herein he presseth us yet further, with a piece of old counsel, viz. Dedecus magis quàm periculum vites. Whosoever gives this counsel, if he should mean, that the peril of a man's soul were rather to be embraced, than any worldly shame: it were very unsound, and wicked counsel. For it is better, to lose, not only our whole credits in the world, yea, & all the world beside, rather than our own souls. It is (in truth) but an exhortation unto valour, and courage: and that a man in a good cause, should rather incur any bodily peril, then impair or distain his honour, and loyalty to his country, by cowardice. Besides, in matters spiritual, and belonging to the soul; there is a shame which bringeth honour, as Ecclesiasticus writeth. He inveigheth also against them ex absurdo: because if purgations should be used (he saith) at the Common Law upon inditements of felony, or other criminal causes; perjury would overflow the land. I am also of this mind, that if for matters of life & death a man might be acquitted upon his own oath, and his Compurgators: that many wilful perjuries would be committed. But oaths of purgation be not imposed, any more at the Ecclesiastical law, than they be at the Common law, in any matters capital. And as purgation, is only a presumptive kind of clearing, to remove the offence, & for safeguard of his credit, who being infamed, can justly and truly perform it: so is it no such final acquittal, but that the party purged may again be convented for the same: if any man (by law allowed) will undertake the proof, not of the same, but of the very crime and offence itself, whereof he was afore purged. As for other criminal causes, which endanger not life, nor limb: diverse Temporal courts (though not upon inditements) without such fear of driving men to perjury, do minister, & urge the parties oaths, as hath been showed. Yet not holding them purged, or cleared thereby, albeit they deny the crimes; but inquiring further, and examining witnesses also afterwards, touching the truth of the offence. Besides, such oaths be ministered in those Temporal courts, upon no detection of fame, or other presumption, grounded upon the oaths of any: but upon the private vindicative mind of him, which putteth in the bill, and prosecuteth. Lastly, there be few or none of the crimes called transeuntia, and not capital, which be enquirable in any courts temporal: or if any be, they are not (in their own nature) so secretly and without possibility of direct proof performed: as the crime of incontinency is; touching which, most purgations fall out in Ecclesiastical courts. There was therefore small cause of that his question here, viz. Why Ecclesiastical courts offer not to the laity, the like good measure, and upright, and sincere justice; that themselves find in courts temporal? Besides that by the same question, he indirectly also taxeth all courts whatsoever, that impose oath on the party; for want of good measure, and of upright and sincere justice. Upon the former reasons against purgation, he groundeth another question also, viz. Why these ordinaries (which challenge, or assume to themselves the goodly name, and title of spiritual men) do not proceed to condemnation, by good proof of lawful witnesses: and again absolve the party defamed, where such sufficient proof fails them? I answer, first, Ordinaries do not in these days, either challenge, or assume to themselves such goodly name, as he solaceth himself at: but rather, the title of persons, or judges Ecclesiastical. In deed, that other name (in times past) was willingly embraced by the Clergy: and (as they thought) without any injury to other callings, in respect of the subject matter of their profession, which is spiritual. And by no man's writings or speeches, is it more often attributed unto them, even until this day; than it is in statutes of the Realm, in reports, and usual speeches at the Common law. Therefore was there the less colour, that Ordinaries should be upbraided with it: as if they of their own heads did vainly arrogate, that title unto themselves. Secondly, Ordinaries do in all causes not confessed; proceed to condemnation upon witnesses, and matter of Record: or unto absolution, upon failing in proof: saving in crimes, which be of that secrecy in their own nature; so as witnesses of the very crime, by no likelihood can be had: yet always, where such probable inducements thereof do lie; as do infer a fame, or give scandal to the well affected, and are evil examples to the weak, and unstaid. Thirdly, if no condemnation of a man be just in any court; but upon good proof of lawful witnesses, deposing of their own sights and knowledges; then doth he withal impugn, the usual, and lawful justice of this land, by juries: who in crimes of very high quality, are often, & may be led, sometimes by one witness: yea, and he, the party that prefers up the Indictment: and sometimes though by more witnesses than one; yet all deposing upon probabilities, presumptions, and other pregnant, or likely inducements, to prove the party to be guilty. Like wise he overthrows also hereby, all waging of law by the parties judicial oath, taken in courts of the Common law, about chattels, debts, and lands. For a man having but two hands of Compurgators, swearing for the truth of his oath, upon their own credulities: shall be thereby relieved and acquitted against his adversary, without any witness at all. For the Treatisour himself telleth us; that wager of law is not permitted, where any one witness, or writing may be had. and if the party will not take such oath, being offered; then is he (without witness, writing, or other confession) condemned for the matter, in demand. Now, saving that it is not in a cause criminal; what doth this wager of law else, differ from a purgation? and what less danger of deadlines, poison, or perjury, is there herein, especially, if the matter be of any weight and moment; then there is in purgations, at the law Ecclesiastical? and yet nevertheless, both of them be good measure, upright, & sincere dealing, in all course of good justice. Lastly, if in crimes of that hidden nature, he would have all defamed persons without more ado, discharged and absolved; where two witnesses of the very fact cannot be had: he might then in steed of fear, that perjury (in the other case) would overflow the land: stand well assured in this, that adultery, and lechery, might, and would more freely overflow it, without all touch or controlment. Admitting that which the Treatisour further allegeth, out of the grievances of Germany to this purpose, to be truly by him set down: yet there is nothing there objected, which condemneth these purgations. For the first fault there found, is only, for that men upon false reports & slanders being brought before Ordinaries, & having purged themselves; do nevertheless pay for their letters of absolution, which ought rather to be paid by such, as falsely accused them. Whether any such thing were practised then in Germany or no, I know not. heat of opposition, & sharpness of humour, makes men sometimes, either wilfully, or by mistaking, to misreport matters happening even at their own doors. But I stand not to defend abuses, by any man offered against law. The law is, that upon an accusation, a man shall not be put to oath of purgation: except the proofs made (though they do not convince) yet do greatly burden and charge him, by vehement presumptions, or scandal. And if he do then purge, & clear himself, the accuser is to be condemned in charges. And though by Accuser here, any private prosecutor were to be understood, yet (upon the purgation) even such must likewise, defray the charges; because it is calumnia praesumpta. But if public Officers, that are appointed to present, do make denunciation; then are they to pay no charges: unless not only the presumed calumniation, and conspiracy; but also, a true and formal calumniation, be found against them. The next grievances there pretended, & by him alleged, are: for that upon diffaming one of another through anger; both the party that did diffame, must take oath, that what was spoken by him, was not deliberately, but upon displeasure uttered: and the party defamed, that he or she, is not an adulterer, etc. as they were by the other slandered to be. whereby is inferred, as inconuiences; that both unlawful gain, is thereby sought, and wilful perjury forced. It is no marvel in deed, though such, & greater inconveniences also should hap, where due proceeding in law is not observed. for neither of these two last courses, is warranted by any law, nor yet followed by any practice in this Realm, that I know, or have heard of: therefore culpateneat autores. So that Purgation in itself, is not assigned (we see) for any of those German grievances. But because the Treatisour surmised, his reasons could not otherwise be answered, nor Purgations justified; unless Compurgators (who concur in that action, & swear upon their credulities) were thereunto vouched, to help the cause: therefore to meet also with this point; he saith, the matter is thereby no whit amended; but rather made worse, & impaired. because compurgators do (in effect) justify him to be honest, whose fame, & the former deponents have proved to be dishonest, & very near (the circumstances considered) convinced of the crime objected? where may be observed, how light account soever elsewhere he do make of fame without direct proofs; & therefore would have the party dismissed, without more ado: that nevertheless, he maketh it here, to be very near a conviction. Albeit a fame and those who depose thereof, do burden and charge a man's honesty: yet do they not convince him of the fact, and therefore do not prove him to be dishonest. Furthermore, the number of Compurgators cannot make worse nor impair (any way) either the credit of the man, or of the matter: though it were granted, that there oaths (for his reason afore alleged) were rash, and unconsiderate. whereas, in truth, the fame or such like inducement, being but a charge, importing some presumption against the party: is most aptly cleared, and taken away as with a more strong presumption, viz. by the party himself, who taketh oath of his own innocency from the very fact: & is beside assisted with the oaths of sundry others (who are privy to his former conversation, and fear of God) deposing upon their credulities; that weighing the whole matter indifferently, they verily think the party hath taken a true oath. Again, if by fame, and by the presenters oaths thereof; the party be in deed proved dishonest: why doth he say, that it is but near unto a Conviction? for if dishonestic were thereby proved by him; why should he not also stand thereupon convicted? But I would have thought till now, that none who thinketh reverently, and but as he ought of the common laws of this his own country, howsoever he do of all other: could thus absolutely, and advisedly have condemned all kind 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 law, is touching our lands, or goods? Nevertheless, the common law is not wholly destitute neither, of example of this purgatory oath, even in matter of secret crimes. For the party appealed of murder or robbery, who putteth it to trial by battle (as hath by other occasion been afore alleged) before the combat, must take an oath; that he hath not committed such offence. and herein the law yet resteth not, but requireth also afterward, a further trial by battle, betwixt them: whether the appealed party, will thereby fall out to be tried clear, or culpable. And if either the party appealed refuse the one, or be vanquished in the other: the law pronounceth and holdeth him for a man convicted of the hidden crime itself, that was imputed to him. If 1 c. 1. & 2. de purgat. vulgari. 2. q. 4. c. monomachiam. this oath of purgation, with such further trial; being both of deadly danger, and of great doubt, (when all is done) in a matter capital; yea and upon the appeal, or accusation of another; be but good measure, sincere, and upright justice, a trier, and preserver of innocencies, not hurtful, but healthful to the common weal, nor no poisoning purgation; whereof (I hope) the Treatisour will make no scruple: then, where the purgation for a secret crime, and upon no less presumptions is imposed, not by an enemy, or accuser, but by the judges office; not importing any danger of bodily death, but tending to the good of his soul, and satisfaction of other Christian men's consciences, wounded, and grieved; there must needs be much less cause, of any such challenge. For further justifying of Purgation by the party's oath with Compurgators: I mind not to allege the authority, either of Canon, or Civil laws, because they are like with such great facility to be rejected by him. For he saith, that it is no matter what their laws presume or teach; but with what reason they do it. Well, there be not a few, nor those unwise nations in the world: where the authority of the laws he meaneth is such; as that they are even presumed and intended, to be grounded upon good reason: albeit a reason of every law, cannot well, and aptly be yielded, as those laws doc testific. The received use of this purgation, amongst most Civil nations; doth make it to be little less than Ius gentium, and therefore by moderate and grave men, it is not meet, so lightly, and slightly without good grounds, to be condemned. Besides, purgation Canonical, is so far from being condemned by good, & godly Bishops in ancient times: that by whole Counsels it hath been prescribed. Let 1 Concil. Tribur. Can. 21. a lay man (saith one Council) if need be, purge himself by his oath: and let a priest by the Consecration of the holy Sacrament be interrogated. And another Council thus: 2 Iuo. li. 5. ex Concil Agathensi. Let a Priest (if he can) purge himself of the crime with seven of his order: and a Deacon with three. So was it decreed by a third Council: 3 Iuo. ibidem ex Concil. I●…densi. if a Priest or minister, be infamed amongst his charge, and it cannot be proved before the Bishop, by witnesses; let him be suspended, until he perform due satisfaction, lest the faithful people be scandalised. But (as our Elders have taught) then is the satisfaction due, and orderly, when according to the Canons, or as the Bishops shall judge fit, he joineth unto him seven Compurgators, and swears by the holy Gospels laid afore him, that he hath not committed the crime laid unto him, and when he is thus purged, then let him again freely execute his office. And in another 4 Concil. Worm●…c. Council, we find purgation prescribed for theft, and also for adultery. Besides these, sundry others also might be alleged. and according to the prescription of such Canons; examples have gone. for sundry ancient Bishops in the Church, have themselves made their own purgations, for avoiding, or removing of scandal & offence. 5 12. q. 4. c. manda●…is. Sixtus, the third, an ancient Bishop of Rome, but upon the accusation of one Bassus, did willingly make his purgation upon his oath in a Council; which (in that case) was more than he needed to have done. And so did 6 Iuo. Car. li. 5. Leo another ancient Bishop of the same See, purge himself with twelve Bishops. Gregory the great enjoined unto 7 Greg. ep. 23. ad justinum. presbyt. Leo, 8 Idem. ep. 8. li. 2. Memius, and 9 Idem. ep. 8. li. 7. & ep. 75. li. d. Maximus three Bishops, to clear & purge themselves of several crimes by their oaths: whereof the last was for Simony. Innocentius also caused the Bishop of Trent, to purge himself of the like crime of Simony. And what be the oaths, touching goods stolen, or embezeled which were left with a man upon trust; appointed in 10 Exo. 22. v. 7. 8. 10. 11. Exodus: and those in salomon's prayer, at the 11 1. Reg. ca 8. ver. 31. 32. dedication of the Temple: other than oaths of purgation of a crime, imposed by the party, having an interest? Likewise, the oaths mentioned in 12 Levit. 6. ver. 2, 3, 4, 5. Leviticus concerning goods denied, that are pretended to have been left in deposito; or goods gotten by robbery, or by violent oppression; or casually found after they were lost, yet by the finder denied; are they not for purgation, and clearing of the party, from the crimes imputed? and (in some respect also) decisory of the whole controversy; unless sound proofs touching the true guiltiness of the party, may be afterward found out and used? Again, the 1 Num. 5. v. 14. etc. oath of jealousy taken with a further solemnity of purgation, and imposed by the Priest a public Magistrate in that behalf: is an oath not only of Enquirie, but of purgation to the woman denounced for suspicion of adultery, by her husband. Lastly, the 2 Deu. ca 21. v. 1. oath imposed by God's law upon the Elders of the City situated next unto the corpse of a man which is found secretly murdered: is a plain and most direct oath of purgation, even in a crime (in his own nature) evil, & capital to the offenders. To conclude therefore; we do find it lawful, and godly, sometime to make further Enquirie, and trial, than a defendants own oath, who thereupon denieth the matter: and that purgations Canonical be convenient, allowable, and manifoldly lawful, yea, by the very word of God itself. The Epilogue unto him, for whom the first draft of this Apology, was privately addressed. THus have I as plainly as I could, and as briefly as the matter would suffer (in my rude manner) showed unto you, my simple opinion, in the points aforesaid, lately called into controversy: and (by the way) in others also, wherein you have so earnestly (almost) importuned me to travel. If it do (but as it is like) not satisfy you; impute it to the shortness of time, lack of good leisure, and chief to your own bad choice of me. If any thing be mistaken by ignorance, or overslipped (as I doubt not but very much is, and may be) keep you promise with me: and let this simple Treatise have no more, nor other readers of it, than I wish. and so shall I have less cause to doubt, but that the censures of it, will be nothing so sharp, as (I fear) they may be just, for want of skill in me, to deal in matters of this quality. FINIS. QVAESTIONIS: NUNQVID PER IUS Divinum, Magistratuiliceat, a Reo jusiurandum exigere? & id, Quatenus ac quousque liceat? Theologica Determinatio: Habita In publica Schola Theolog. Cantabrigiae, mense julio, Anni 1591. Per LANCELOTUM ANDREW: S. Theologiae Doctorem. NUNQVID PER IUS divinum Magistratuiliceat a Reo jusiurandum exigere? Et id, quatenus ac quousque liceat? DE quaestione in reos habenda sub religione juramenti, déque eius per reos vel susceptione, vel declinatione legitima; nuper quaesitum est: Nunquid per ius fásque divinum, 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. ¹ An exigere juramentum liceat? ² An Magistratui liceat? ³ An à part rea id liceat? ⁴ An omni in causa liceat, an verò non in Capitalibus; sed quae mitiore poena luuntur? ⁵ Quousque 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 interesse puto, (quod Christus fecit in causa divortij) qualis quaeque res ab initio fuerit, id primum inquirere. Aetatis flexu multa mutantur: Principium Index certissimus. Quaero igitur, ubi, & quando, prima juramenti mentio in sacris literis? Reperio Gen. 24. Abrahae scilicet a digentis ad iusiurandum servum suum sub hijs verbis, hácque caeremonia: Pone nunc manum sub femore meo, ut iurciurando te obstringam, accepturum te uxorem filio meo, è cognatione mea. Ita; quod primum est in sacra pagina juramentum, expressum est. Ac ut antiquissima & prima; ita frequentissima & penè so la huiusce mentio. Hoc ipsum (jurare,) vix reperias usquam in Testamento veteri, nisi vel sub Hiphil: i coniugatione praeceptiva, ratione deferentis: vel sub Niphal: i coniugatione passiva, ratione suscipientis. Eodémque iure & Graeci sunt, apud quos 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, juramenti nomen est; quod ferè solum in Testamento Novo Spiritus sanctus agnoscit. Est in ea voce coarctans quaedam necessitas, & (ut loquuntur) exigentia, non minus quàm in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Ab eadem enim voce, vox utraque, nempè 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, coarctandi. Móxque proverbio decantatum est, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, Bellum & iusiurandum, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, i. spontanea mala esse: & ut bona sint, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, esse debere; id est, pressa & expressa (ut scitè Augustinus de iuramentis) vel auctoritate deferentis, vel saltem duritie non credentis. Vt nisi aliquo saltem modo, atque aliqua (nec levi) causa, exigatur; peccetur, tum jure iurando, tum belligerando. Exigi ergo posse, vel debere potiùs; ipsa naturae, ipsa vocis vis, evincit. Sed nunquid à Magistratu? (secunda iam haec propago est.) Certe à magistratu. Sic olim Theologi, Non modò quodque corpus, sed animam adeo quamque, Potestatibus subiectam esse, Rom. 13. 1. Esse igitur Potestati, factam potestatem, ut corpus tradat custodiae incarcerando, ne quò aufugiat: Esse itidem, ut animam quoque tradat custodiae suae, jure iurando; ne quò scilicet subterfugiat. Quo nomine aptissimè Deus ipse dixit, jusiurandum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. i. animae vinculum sive carcerem. Nu. 30. 13. quo quasi constringatur anima: constricta appositè & expeditè respondere teneatur. Verùm intro adhuc magis. Si Domino hoc licet in servum, ut Abrahae, Gen. 24. 3. si patri in filium, ut jacobo in josephum, Gen. 47. 29. si fratri in fratrem, ut eidem jacobo in Esawm, Gen. 25. 33. nempe adigere ad juramentum: 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, ut Abrahae servum: si de commodo sepulturae loco deligendo, ut josephum: si de iure primogeniturae transigendo, ut Esawm; privatis in causis, addo etiam & minutissimis, si cum publicis conferantur: utique meliore hoc iure licebit magistratui, in communi Reipub. causa, cuius interesse, est maius omni alio interesse. Idque cautum est lege divina, Exo. 22. 8. disertis verbis. In causa depositi, sistant se coram Magistratibus, ait Deus. Quo in loco, Dei ipsius nomine, nominantur Magistratus: Nec quovis nomine, sedillo ipso quod ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 -- i. adiurandi vi transumptum est. Quasi dicat, Coram juratoribus se sistant, aut ijs, qui (cum Dei vice, ius dicant) in judicio ipsius, ipsius nomine, juramentum ipsius exigere possunt. Nempe Vicarij Dei, Psal. 82. 6. in judicio Dei. 2. Chr. 19 8. juramentum Dei. Eccl. 8. 2. Magistratui ergo licet; Magistratui (dico) cùm Ecclesiastico, tum Civili. Coram illo, nempe Ecclesiastico, lege purgare se juramento iubetur mulier, in causa suspectae fidei coniugalis. Nu. 5. 19 Coram hoc, Civili scilicet, lege purgare se juramento, iubetur vir in causa suspectae fidei socialis. Exo. 22. 8. Cuius praxim videmus (est autem praxis sanctorum, interpres praeceptorum) Ecclesiastici quidem in Esra, qui juramentum exegit in causa matrimonij, Esr. 10. 5. Civilis vero in Nehemia, qui ad juramentum adegit in causa foenoris, Neh. 5. 12. Neque verò Magistratui solùm pio & religioso, hoc juris est; verùm & Ethnico; idque in populum Dei. Praestitit Nebucadnezzaro juramentum 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, sive commercij, sive alia de causa haerentes. Quo ipso nomine, josephus AEgypti iam prorex juramentum 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 vocari potest. Ex. 22. 8. Depositarius pars rea est. Num. 5. 19 Mulier viro zelotypo suspecta violati thori, pars rea quoque. At utrique defertur iusiurandum, nec declinare fas fuit. Paucis complectar: sive quis dolo rem proximi interuortit, sive mala fide amici rem procuravit, sive rem repertam, repetenti non restituit, Leu. 6. 3. siue (ut mihi quidem videtur) ullo praeterea in crimine (indefinitè enim ponitur, 1. Reg. 8. 31. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉— i. quicquid peccaverit) licuit actori 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, id est, juramentum reo impingere, vel levare super eo juramentum (Hebraica phrasi.) Nec reo detrectare licuit, ab actore quidem ipso, nedum à magistratu delatum. Equidem incidere non negem tempora, ut vel ipsi actori deferri expediat, non solum reo. utrique namque praevaricari contingit; Actori, calumniando; Reo, tergiversando. sed si ius, è caelo petimus, i. è sacris literis; reo magis. Exempla quidem ab ea part ferè sunt. vix unquam reperias in lege, delatum actori iusiurandum; Reo reperias quàm saepissimè. Rationem reddit Moses: Actori (quip qui plaerunque pars laesa sit) incalescit animus, totus in fermento est, irae, vindictae, malevolentiae aestro percitus, acceleraret ore suo; quod in juramento vetat sapiens. Eccl. 5. 1. Quare inepta planè materia juramenti. Reus, quem falsi criminis reum, lex semper autumat, quoad constet contrarium, multo aptior. Minus in eo praeiudicij, minus affectionum, praeter fortè timoris, qui ipse eos est quasi juramenti. Quare, à reo exigi, & licet, & verò par est. Accedo ad quartam: Qua tandem in causa isthuc par sit; quae paulo spissior est, & plus quaestionis habet. Ac causarum quidem non aliundè divisionem petam, quàm è iure nostro: id est, Theologorum. Ibi, lege sacra, aliae, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est, Noxae seu praevaricationes censentur. Ex. 22. 9 aliae 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est, causae capitales. Deu. 21. 21. Quarum atroces hae, vita quidem sanciuntur: vita, sive naturali morte moriatur: sive Civili, id est, exilio: seu (ut 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 graves, 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, josuam sic agentem: Narramihi fi●…imi; non iura mihi. Cum de jonathanis, Saulem identidem: Dic mihi jonathan: non deiera mihi. Spontanea, non expressa confessione; interrogatione simplici, non religione juramenti. 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 dictant) Tantùm ne capitale mihi sit responsum meum. Ac si in ijs quidem causis immunitatem Deus dedisset respondendendi. jere. 38. 14. Ac ratio quidem favet. Sic enim (quoad eius fieri potest) quaestiones à Magistratu habendae sunt; ut 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. job. 2. 4.) verendum, ne illud (Quicquid) tum conscientiam ipsam juramenti, tum timorem numinis, tum quicquid praetereà religionis est (ut homines sunt, utque mentem habent) comprehendat. Quare, etsi nihil definio: tamen (nescio quomodo) in hijs quidem causis, propter periurij periculum praesens, iuriiurando parcendum censeo; legésque quibus utimur (〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saltem idem hoc censuerunt. In alijs verò ijs, quae minore noxa cum sint, mitiore poena plectuntur; non censeo. Nisi fortè, comicum quoque illud iam in Theologia receptum sit: juramentum rei seruandae, non perdundae conditum est. Cautum est enim lege generali, Leu. 5. 4. Quod qui iuraverit sive benè se facturum, sive malè id fuerit; teneri debitorem, ut faciat: Idque cum de malo culpae intelligi ne queat (ut in scholis loquimur) ne sit enim sacramentum pietatis, vinculum iniquitatis: in malo poenae teneat necesse est. quo in genere nec renuere juramentum licuit, nec datam in eo fidem pòst rescindere. Non renuere: Sciens prudens exegit à Schimeio juramentum Solomon, in 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 juramenti sui, 1. Reg. 2. 43. Quid quaeritis? Quanquam prophanus Schimei, juramentum nullus detrectavit; etsi in dispendium libertatis suae. Neque verò Micheas, qui juramenti 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 jurare: tum id, quanquam prophetam Micheam, non ausum tamen (inscitiâ id fortè juris diuin●…) quod nos hîc hody facimus; aut stipulari, ne fraudi sibi sit juramentum suum, libertati suae; aut si id non detur, tergiversari. Non rescindere: Quod ipsum summo scilicet argumento est, legitimè praestari: Nam ni ita sit, Rectè Augustinus: Iniusta vincula, rumpat justitia. Non erit (spero) deteriore iure magistratus, quàm quivis de plebe. Atqui privati 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, juramentum nullus revocavit, etsi in dispendium haereditatis suae. Verùm enim, ut quo iure sint privati, hac in re semel sciant; neque regi fas istud. juravit in damnum suum Zedechias, idque prima facie; servitutem scilicet, tum suam, tum populi sui. Ezech. 17. 13. mutavit; sed & detestante factum Deo, & vindicante. Neque verò reipublicae. Respub. Israëlis, juramenti interuentu, foedus cum Gibeonitis sancivit. Contrà venit illud, tum commodo suo, tum politico Dei praecepto. Non censuit mutandum, rectè censuit. los. 9 15. Idémque cum Saulus post à mutandum censeret, etsi zelo id Israëlis factum, periculo id primùm regni sui, excidio pòst posteritatis expiavit. 2. Sam. 21. 2. Non regi, non reip. nec privato igitur. Concludo iam; Absit modò capitis periculum: in rebus causisque, quaeve mulcta, quaeve carcere plectuntur; Et subdito praestare juramentum fas esse; & magistratui postulare. Verùm in eo haesitationis plurimum; hoc ipsum quousque liceat, & quatenus. Quod ego dum expedio: actio mihi tota, sive (ut loquuntur) processus iudicialis obeundus est; ut, qu●…tandem prodire tenus, ubi non datur ultrà, 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 judicium; ex Esaiae 1. 23. Diws 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, pervestigationem litis judaei appellant, ex job. 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 judicio; Legitimè quis vocari in ius debet: Pòst status causae fieri: Probationes demùm inquiri. Ac in prima quidem, haud ullus (quod sciam legerimue) juramenti usus. De ea tamen ut 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 juramentum 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 de facto, tum de persona: Sive 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 depraehensa sit pars rea: id est, (ut loquuntur) infacti flagrantia, ut illa, joan. 8. 4. sive ita manu elata, vel ausu (ut dici solet) notorio, ut coram magistratu coetúque universo tentata fuerit, quale Zamri facinus, Nu. 25. 8. In quibus ita propalam gestis, nihil accusatore, nihil teste opus est: vel sanè e●…usmodi, ut aut de facto constet incognita persona, ut in cadavere reperto, cuius percussor ignoratur. Deut. 21. 1. aut de persona quidem, incognito facto, ut in Achanis. jos. 7. 18. Qua quidem in re sie controversa, vocari quispiam in ius poterit, modis quatuor, ex divinae legis sententia. Etenim vel indicijs prodi quis poterit, ut in prima illa justitia divina (quam 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 sive ira, sive invidia Caïni. Gen. 4. 6, 10. Primus hic modus est. Secundus; vel insimulante altero prodi quis poterit; ut illa ipsa in justitia prima, solus Adam citatus: sed is in quaestione (ut fit) Euam insimulavit; Eva itidem serpentem. Gen. 3. 12. Atque ita illi quoque rei peracti sunt. Tertius, vel porrò infamia, (ut plaerunque improbo●…um facta suspitio consequitur, 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: Siperlata ad te fama fuerit, aut si fando fortè inaudie●…is. Deut. 17. 4. tum in evangelio, ut contra incestum. 1. Cor. 5. 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Quartus, vel denique suggestione seu querela, ut in jobi causa. ca 1. 11. ubi accusator fratrum nostrorum, (ut eum Diws johannes 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. ubi poena rei quaeritur, ut laesae parti satisfiat, in causa iniuriae: partim (ut loquuntur) evangelica, qua Ecclesiae denunciatur quispiam. Mat. 18. 17. ubi medicina tantùm rei quaeritur, ut Ecclesiae satisfiat, in causa scandali. In prima, res ipsa loquitur (ut dici solet) reúmque insimulat. In secunda, reus alter alterum. In tertia, populi vox delator est. In quarta, unus quispiam, proprij verique nominis accusator. Addo etiam hijs quintum adhuc, verum non (ut 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 josua, quod quibusuis in causis, non datum est. jos. 7. 16. In ijs, sua solùm suspitione fretus joseph; 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 juramentum. Nec illi ad ius gentium provocant tamen, aut contra ius fásque secum agi conqucruntur. Vbi enim de reipub. pace agetur, tanti illa est; ut 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, ut 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 divina repub.) Quorum utrumuis, in alijs, sive litibus, sive criminibus, jere. 29. 26. nemo permiserit. Rectè (si benè memini) Seneca reirationem reddit. Vbi scelera per abruptum eunt, iniquum est justitiam 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: eiúsque rei vallis Achor, perpetuum monumentum. I am verò quemcunque in ius vocarit magistratus, praeeunte ex quatuor illis uno (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 judice, in dubium vocata, vel fatetur reus admissum scelus, quod fecit Achan; ac tum in confessum, nullae sunt judicis partes, nisi ut feratsententiam: Velure, (quod ferè fit,) negat; quod eleganter inprimis expressit Solomon, Pro. 18. 7. justus est, qui primus in lite est, donec superueniente proximo, pervestiget eum judex. 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 judicio quaeritur, ut ibidem Apostolus animaduertit. Terminus autem nullus reperietur, donec in aequilibrio res; id est, nisi altera causa uberiorem habeat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, quàm altera. Apostoli ea vox est eodem in loco. Eam ergo, qua part lareat inquirere, judicis partes sunt. Tenuis enim labor, tenuis laus, lites dirimere quae in proclivi sunt. Illas, quarum obscurum ius est & perplexum, excutere; id demum judice dignum. Causam quam non cognovi, pervestigavi eam, de se ait job cap. 29. 16. idque ipsum dextrè commodéque praestare, honor est magistratus, ait Solomon 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 uterque ac sese iure manu-consertum, vocare possint. Dicit judaeus, omnino prudenter dicit: Ante omnia repone mihi litem supra basin suam, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Quod nifacias, erit (uti aptè quidem loquuntur ex proverb. 21.) actio tota 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, id est, mera vanitas, inter actorem & reum, hinc illinc, ultrò citroque agitata. Quod cùm nec in scholis hîc ferri possit: multo minus in judicio debet, cuius esse debet, sacer ac solennis processus omnis, ipsaque justitia justitiae, ut est Deut. 16. 20. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 iam hoc, sive status (seu quis appellare malit) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, aut est ex part rei quaerendus, aut ex actoris. Non ex Actoris: Non potest saepe, quia is saepe nullus; ubi aut Indicijs quis in ius vocatur, aut famâ. Et cum est; transuersus fere rapitur: sive odio, sive cupiditate aliqua obliqua impulsus est, ipse ut sine statusit, ut frustrà ab ipso starum quaeras. Quare reo facta haec gratia, seu potiùs hic honor habitus est (qui & semper persona est certa, quemque lex non convictum habet, pro insonte) ut ipse sibi sua vel affirmatione vel negatione statum figat: imo verò ut illius solo responso totius controversiae status fiat: nec status modò controversiae, sed (nisi falsi convincatur sub teste duplici, omni exceptione maiori) controversiae finis quoque. Sed enim ne statu sic à se desixo, si solutus & liber eat, statui pòst suo non stet; sed tergiversetur, ac recedat ab instituto: adhibetur illi vinculum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 animae vinculum (ut Deus ei nomen fecit) religiosa scilicet juramenti affirmatio; qua nempe, illius anima quasi constricta vinculo, veritatem, (non eam quidem absolutè) sed proutipsam sciverit, 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, (ut nempe iuretur in responsa) evincunt & illa Micheae praxis (de qua ante mihi mentio) & verò multo aptiùs, altera illa in quaestione de Elia 1. Reg. 18. 10. ubi cùm disertè respondissent, non est apud nos, non eo contentus rex, adegit eos insuper ad juramentum, qüod non invenissent eum: quasi nulla lex cogeret, responso acquiescere hominis iniurati. Quare ut aequum omnino est, constringi reum, nè elabi denuò & statum mutare pos●…it; ut subindè alius atque alius, atque ita (revera) nullus sit consistendi locus: ita constringi non aut nudo responso, aut (ut alijs videtur) pecuniae mulcta (animae haec vincula non sunt; quae sola interpres est veritatis) sed solo, vero, & unico animae vinculo, id est, jure iurando. Atque ita demum cardine totius causae sic (ut par est) posito; ad illas quas nominat Apostolus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, progredi fas. Neque verò (quod quosdam criminari audio) reum sic astrictum esse convenit, actorem omni modo liberum. Neque verò hoc iure utimur. sed, ut iureiurare actorem, non sanè tutum, propter, quas bis iam nominavi, 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. suámque insuper syngraphâ fidem obligare, sub certa mulcta pecuniae, sub certa nota infamiae, sub precio reddendae cessationis (ut loquitur lex) ni quam suggessit, accusationem & prosequatur, & probet. Ita utrinque Exod. 21. 19 cautum est; illinc iurisiurandi religione; hinc mulcta duplici, infamia non simplici; ne aut calumniari actor, aut reus tergiversari possit. I am verò iureiurare reum primò, ac dein respondere (quod nonnullos 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, diverticula, cautelas quaereret; nihil aut explicitè, aut appositè, responderet. Id quod religio erit facere, postquam juramento obstrinxit se, sanctè tum omnia, candidéque 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 judicij ordo hic. Accedunt viri primarij, atque rem referunt ad Es●…am, de inito per nonnullos (centum put●… & decem) cum alienigenis coniugio, c. 9 1. Adigit Esras reos ipsos, etiam plerosque ne reos quidem, ad juramentum c. 10. 5. Adigit autem, in causa, in qua convinci 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 (ut loquuntur) & instituta cognoscenda. Atque hic iurisiurandi usus prior; justus ac legitimus, in basi nempè l●…tis stabilienda. Alter est, cum de argumentis agitur ad fidem auspicatae iam liti faciendam. Argumenta verò, sive 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 illae, quibus judici fides fit; partim notae sunt atque indicia (quae rei natura fert) certa atque indubitata: partim testimonia 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 (ut loquuntur) litis decisorium, Heb. 6. 16. jurisiurandi autem ex veteri canone, Hebraei partes duas, seu malit quis, genera duo, fecêre. Priorem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, i. solennem contestationem, qua quis aliorum defectutestium, sive qui non possint, sive qui nolint, testimonium ferre; Deum ipsum ubique & in omnib. praesentem, ac ius testis habentem, testem advocate. Vivit Ieboua coram quo loquor, contestationis formula, jud. 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 testem fecerit. Sic faciat mihi Dominus, & sic addat: execration is formula. 1. Sa. 14. 44. Neque verò minus interesse put ârunt Theologi, neque minus teneri reum, sive alterutr â utatur, sive utraque. Addo etiam; sive contestetur reum magistratus, aut execretur adiurando; sive ipse se, iurando. Perinde enim esse, fiat hoc, an illud: levetur juramentum supra reum à judice; an levet ipse supra se. Idque constare volunt tum ex Prou. 29. 24. ratione 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉: tum ex jud. 17. 2. ratione hypotheseôs. verùm lis ista aliam in litem in currit. Non prosequor: prosequor quod institui, de argumentis. I am verò judici 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, ut sublatum furto calicem depraehenderet. Gen 44. 5. Sic Magistratui nostro, aedium penetralia & recessus intimos, ad indicia sceleris eruenda. Testimonia. Sic cautum est lege divina, Leu. 5. 1. Si vocem quis audierit adiurati●…nis (Paraphrastes autem Chaldaeus legis interpres longè antiquissimus, necubi erretur à nobis, apposuit; nec dubium, quin de sensu veteris Ecclesiae, etiam quae ante Christum) à judice factae veldelatae; & ipse eius rei testis esse possit, ut qui viderit ipse, sciveritque (quo loco sciverit Septuaginta vertunt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉) si quis ita conscius ad testimonium evocatus sit: ni indicârit, feret iniquitatem suam. Quaestionem ergo habere licet, vel sub juramento. Ac primò quidem, quaestionem habere de reo apud alios quantumuis fratres, quantumuis religiosos. sic Obadias Eliae, 1. Reg. 18. 10. Non est provinciae aut regni locus; quò non miserit Dominus meus quaesitum te, cúmque responderent, Non est apud nos; etiam adiuramentum adegit provinciam illam, quòd non invenissent 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) testimonium dicere detrectâsse. Neque verò de reo tantùm apud alios habere quaestionem fas: sed & apud ipsum de se. Exemplo magni judicis in lite omnium primâ. Gen. 3. 9 Quis indicavit tibi, nudum esse te? Et, nunquid comedisti de fructis arboris interdictae? Sic Principes Baruchum interrogant de libro jeremiae. Indica nobis, quomodo scripseris verba haec. jer. 36. 17. Sic Esras reos ipsos de facto suo. Esr. 10. 11. sic Pontifices à Paulo●… 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 atque 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 adiuravit: In Novo per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, sicque Pontifex Christum Matt. 26. 63. & utrique religio fuit, ad quaesita non respondere. Ac de Hebraea quidem voce quaestio nulla, quin & vi nominis, & usu, juramentum 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 jure iurando interposito, fore, ut ne me torqueas: ut illis videtur. Sed ego adiurandi vocem mitto. Sumo alteram, levandi super reum ipsum, juramenti (si altera modò sit) id est, vel invitum ad juramentum 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 cuivis de plebe actori, exigendi à reo juramenti potestas foret; non foret Magistratui. Si in causâ depositi id liceret, in causâ regni non liceret: si adigi quis posset ad juramentum, non extendisse se manum ad remproximi sui: adigi non posset ad juramentum, 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 (sive personas spectes, sive res, & rerum sive momenta, sive exitus) maior hîc necessitas, maior aequitas incumbit juramenti. Quare & interrogarireum in causa sua, ius fásque divinum est; & id interuentu sacramenti fieri, fas quoque. Atque hic iurisiurandi usus posterior, justus ac legitimus, non modò ut quaestioni status fiat ex responso rei (quod ante positum est:) sed etiam ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quoque causae, id est, probationum statumina colligantur, quibus ludici fides fiat, ad litem ex altera part terminandam. Possent haec iam satis esse huic instituto; nisi quòd restet adhuc unus (credo) aut alter, vix dignus vindice nodus: nisi quòd (ut est hoc seculum nostrum) quorundam hominum quivis scrupulus, scopulus est. Causantur adigi hoc pacto homines ad iusiurandum infinitum; nisi ante, quaestionem habere; pòst, juramentum deferre liceat. Eiusce rei ratio iam ante à me reddita. Nolo iam hîc recoquere. Tantum id contendo, quòd defertur ijs, de more, juramentum, infinitatis nomine declinari non posse. Dum enim Ieremiae illi, (qui semper in Theologia habiti sunt iurisiurandi limites & quasi fines) adhibeantur, jer. 4. 2. In veritate, justitia, judicio, abunde satis circumscriptum est; nec alios scriptura fines aut agnoscit, aut postulat. 1. In veritate, verè scilicet; 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 part finitum est. 2. In justitia, justè scilicet, nempe ut, & de possibili iuretur, dequo cavit servus Abrahae Gen. 24. 5. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, id est, Fortasse nondabitur. Ethnici quoque ipsi: De quibus sciam poteroque. Et de honesto, de quo caverunt illi, Esrae 10. 3. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, id est, prout forma juris exigit. Diws Paulus quoque Act. 23. 3. secundùm id quod in lege est. Sat à secunda part finitum est. 3. Iniudicio, id est, maturè (sic enim distinguunt interprete) ut ne temerè. De quo Solomon Eccl. 5. 1. Ne proferens quid coram Deo, accelerare orecogatur; sed spatio ad deliberandum interposito, ita demùm respondere. Hij sunt quos juramenti fines sacrae litterae agnoscunt, nec praetereà quicquam postulant, ut definitum sit. Tres isti si adhibeantur: 1. Non loquar nisi veritatem in nomine Domini. 2. De quibus sciam poteroque, & prout à me forma juris 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 juramentum 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. jam verò, dum ne peccetur jure iurando, haud quicquam credo interest, anténe promittas te dicturum juramento promissorio; an pòst deieres, te dixisse 〈◊〉. Eodem redit; priusquam respondeas, profitearis te id sine fraud facturum, praemisso: an postquam respondisti, attesteris, te id sine fraud fecisse, submisso juramento. Dixi quidem, & dicam; Feci, & faciam; duo sunt tempora: juramentum idem est. Quare ad rem quidem, haud quicquam interesse puto: interesse tamen hoc, quod plurimum conducat hoc litibus; tum ut explicitae sint, tum ut expeditae, si omnium primò iuretur. Vt explicitae; ne (si reo praevaricari libeat, cum nondum sacramento obstrictus sit) fluctuet lis rota, nec basin cardinémque consequatur. Vt expeditae; ne (si nolit reus ubi respondit, in responsa jurare) easdem saepe quaestiones itera●…e, atque ita actum agere, judex cogatur. Interesse denique quod in illa judicij formulâ, divinae legiinprimis consentanea, & nostrae huic quae in dubium vocatur, quàm maximè affini: is ordo sit; juramenti primùm, dein, quaestionis: Esra. 10. 5. Idque ipsorum postulato, de quibus habita est quaestio. Cùm enim de litibus expediendis accuratissimè divina lege caveatur; neque prior in scriptura mentio judicij, ut fiat; quàm ut 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 unius diei. Quare post praestitum à se loco solenni solemn juramentum, venturos se pòst per otium, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, id est, designatis temporibus: ut in singulas facti circumstantias, virtute priùs praestiti juramenti, inquiratur. Eadem nunc praxis apud nos; idem mos obtiner; & quidem sive consilium spectes, aequissimus; sive institutum, divino quàm simillimus. Nam si juramentum praecedere debeant quaestiones (cum nisi pro consessu iureiurare quemquam nefas:) certè vix unus dies, uni causae sufficiat, cogaturque (quod Iethro factum damnavit) ast●…re judicio populus à manè usque ad vesperam. Vltimum id est: quod quidam (vitio mentis procul dubio) deferri sibi postulant; ne in emissum à se iusiurandum, inquiratur; Idque Paulinae sententiae fiducia; Cuiusque contradictionis terminus, juramentum. Mitto, quòd id ita interpretari Heb. 6. 16. liceat, ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 illud status potiùs sit, quàm exitus controversiae. Verùm, ne liceat; sed esto sanè. sit terminus juramentum; at non qualecunque tamen, aut a quocunque, quomodocunque praestitum (vix hoc sani cerebri postulatum:) verùm eiusmodi (spero) ut de eius fide nulla sit contradictio; si modo contradictio per illud terminari debeat. Quare si litem sine contradictione terminare debet; ita liquidum esse debet, ut ei nemo vel citra examen, vel pòst, aut velit, aut possit contradicere. jusiurandum 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 sive id actor, sive reus, seu testis praestet; eadem juramenti religio, idem valor sit: actum est, si quis jurare in litem velit, statim causam obtineat, pòst autem, recténe iuratum an secus, inquirere nefas: quip 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, purúmque exibit: ipsáque semper inquisitio, uberioris fidei acquisitio futura est. Sin non bonae, vel dubiae fidei sit, vel suspectae; inquiratur, & tum; quò iniusta vincula rumpat justitia. Ratio quidem haec, ratió-ne sola? Nónne & lex eadem dicit? Sive 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 controversiae iusiurandum) imo vero recténe iurata an secus, quaestio nova. Cui rei, ebibendas habuit aquas amaras, juramenti sui, vel veri indices, vel falsi vindices futuras. Num. 5. 24. Contra alium. Cum enim statam rem fore cavisset lex ex ore duorum triúmve testium, qui iurati testimonium dixissent in quempiam, Deut. 19 16. ne quis humana testimonia quasi divina oracula haberet; proximo versu edicit, sisti tamen posse denuò testem suspectum; & inquiri adeò, an castè integréque versatus fuerit in testimonio ferendo: sin falsi convictus 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 avocavit) si ulteriùs insecter hasce ineptias, quas quivis cum volet, obterere poterit argumentis, ita suâ sponte diffluunt. Reddo igitur vos vobis, & concludo. Si (ut ait propheta) disponatur judicium hoc, (quo utimur) ad lineam; & Es. 28. 17. justitia haec ad perpendiculum verbi divini; nusquam in ijs peccari: Exigere posse magistratum, idque à reo, (praesertim dum ne capitalis causa sit, aut sanguinaria) iusiurandum suum: idque eousque posse, sive ut lis basin suam obtineat, dum status quaeritur: sive ut probationum veritas elucescat, dum quaestio habetur. Neque verò juramenti aut fines, aut ordmem, aut examen peccare in Theologiam: ac proin detrectari non posse. Qui detrectant; primùm inscitia diui●… juris id facere: periculoso dein exemplo, si sic liccat animi gratia, in judicia publica, sine judicio inquirere; si caeteras regni res, momentáque reipub.; denique ius ipsum (si pro nobis non faciat,) in ius vocare. Quod avertat à nobis Deus opt. max. ad quem conversi precemur, uti det nobis modestè sapere, & sentire in omnibus, cernere animis quàm non religiosum sit, quàm non Christianum, inclinare judicia 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, justitiam ac judicium, sustentare omnia. job 36. 17. Atque ita determinata mihi sit lis ista, atque utinam etiam terminata. Faults escaped. In the Epistle to the Reader. In E. j in the 9 line, for honour read haviour. In the next leaf afore D. line 19 for employing: read implying. In the 1. part. Pag. 3. quotation 3. for ca 4. read 8. Pag. 27. lin. 13. betwixt the word those, and the word opinions, add great. Pag. 35. line vlt. in steed of for tithes, read, from paying tithes. Pag. 37. lin. 4 after the word three: add these, need be paid. Pag 41. lin. 21. for it, read in. Pag. 50. lin. 2. for And: read As. Pag. 53. lin. 23. after his: add, heirs. Pag. 65. lin. 22. betwixt the words otherwise and doth, add And. Pag. 72. lin. 19 for causes, read cause. Pag. 73. lin. 8. for euiden●…, read evidence In the twelfth Chapter in most places where it is goods and chattels: read 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. read primo. Pag 110. lin. 29. after this word Law, add 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 word king, add these, is not. Pag. 127. lin. 34. for the drawn, read be drawn. 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 ever read even. Pag. 35. lin. penult. put out the first a. Pag. 36. lin. 2. for pers●…cuter, read prosecutour. Pag. 43. lin. 31. for proceed, read praeceede. Pag. 45. lin. 24. for or, read 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, read T. but the whole case itself, 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. read 2. H. 4. Pag. 110. lin. 9 betwixt be, and one, add but. Pag. 127. lin. penult. for Accuser, read accusers. Pag. 134. lin. 30. for Inquire read Enquirie. In the 3. part. Pag. 11. lin. 3. for that, read of. Pag. 65. lin. 14. for Pive, read Pine. Pag. 75. and so on, is quoted for 73. etc. Pag. 81. lin. penult. put out that. Pag. 109. lin. 14. for these, read those. Pag. 114. lin. 33. for benfice, read benefice. Pag. 120. lin. 9 for policy, read polity. Pag. 123. lin 25. for devied, read devised. Pag. 165. lin. 21. for temporal, read temporal. Pag. 172. lin. 4. for will, read well. Pag. 184. lin. 19 these letters T. C. should be in the margin. Pa g. 186. lin. 29. for overthowe, read overthrow. Pag. 201. lin. 6. for certify, read testify.