An apologie for sundrie proceedings by iurisdiction ecclesiasticall, of late times by some chalenged, and also diuersly by them impugned By which apologie (in their seuerall due places) all the reasons and allegations set downe as well in a treatise, as in certaine notes (that goe from hand to hand) both against proceeding ex officio, and against oaths ministred to parties in causes criminall; are also examined and answered: vpon that occasion lately reuiewed, and much enlarged aboue the first priuate proiect, and now published, being diuided into three partes: the first part whereof chieflie sheweth what matters be incident to ecclesiasticall conisance; and so allowed by statutes and common law: the second treateth (for the most part) of the two wayes of proceeding in causes criminal ... the third concerneth oaths in generall ... Whereunto ... I haue presumed to adioine that right excellent and sound determination (concerning oaths) which was made by M. Lancelot Androvves ....

CHAP. V. The true issue of the next opinion in question: two sortes of crimes and offences prohibited: in what cases an oath (here spoken of) may not be ministred: and the manifolde conueniencie and ne∣cessitie of an oath (sometimes) to be ministred in a cause crimi∣nall and penall vnto the partie: with some fewe obiections, tou∣ching inconueniencie thereof, answered.

NOwe followeth the most principall chalenge by this sort of men. and it is that, which they make against such oath, as I termed afore, an oath of purgation and of Enquirie. which is, when a Iudge hauing some one or mo of those grounds treated of, and prooued afore suffici∣ent

(in equitie and lawe) to ground an Enquirie ex officio against a crime; doeth (accordingly) proceede, and vrgeth the partie conuented, to answere the matter and circumstances (whereon the Enquirie to the ende of Purgation, or els to punishment and reformation is framed) vpon his corporall oath; though the mat∣ter be criminall, & thereby may happen to be penall to him selfe, and perhaps vnto others also.

Nowe whether such oath may by a Magistrate lawfully be vrged, and therefore not to be refused by the partie; is the very issue of this question.

Crimes and offenses are of two sortes: they are either prohi∣bita quia mala, that is, either mala perse, in their owne nature wicked, & therfore by lawes forbidden: or such as of their owne nature are not simply euill, but therefore made euill, because (for some publike good ende) they are forbidden by positiue lawes. Whether in both these sortes of crimes, those men doe thinke, such oath to bee vnlawfull, or but in the one of them, and in whether of the two; I haue not yet heard any resolution; and therefore will bring my proofes indifferently for either.

But these two cautions you must be forewarned of. First, that it is not holden by any Law in England, nor by practise of any Court here vsed; that a man should be examined vpon his oath, touching a crime, whereby his life or any of his limmes may be endangered. The reason why the lawes thought it vnreasona∣ble to stretch it thus farre, was for feare of periurie. because it cannot be entended of most men, but they will rather hazarde an vntrue oath; then either their life, or limmes. Skinne for 1 1.1 skinne (sayth Satan to God) and all that euer a man hath, will hee giue for his life.

And to this very purpose is the same text (not vnaptly) allea∣ged, euē by the Treatisor himself. which maketh me the more to maruell at the Note-gatherer (pretending to be both so great a Diuine & Statesman also) that he could not see, this to be far the sounder opinion by diuinitie; and that he knewe not the policie and custome of this Realme, to concurre also therewith; howso∣euer he auouche the contrary, as 2 1.2 afore is by me noted.

The next caution is; that if the Iudge haue probable cause to suspect the partie to be such one, as will 3 1.3 forsweare himselfe, ra∣ther

then tell a trueth: there he ought also to abstaine from ten∣dring oath vnto him, especially touching a crime.

This not onely by lawe is required, but (as ancient Fathers iudge) by diuinitie also: 1 1.4 quare (sayth S. Augustine) prouocasti hominem ad iurationem; quem sciebas falsum esse iuraturum? why didst thou prouoke such one to sweare, as thou knewest would sweare falsely? And 2 1.5 againe the same learned Father: he that pro∣uoketh a man to sweare whom he knoweth will sweare falsely, is worse then a man killer: for a man slayer killeth but the body, but this man goeth about to kill the soule: yea two soules; that is, his whome he so prouoketh, and his owne soule.

An example hereof may be of him, which knowing the very trueth, yet deferreth an oath decisory. whereas a Iudge, though he know it not, but only haue probable suspition, that the partie is like wilfully to periure; ought not to vrge an Oathe at his hands.

In the handling of this oath ministred to a partie ex officio in a cause criminall, and thereby penall to him; I propound this or∣der to my selfe. First to diduce downe more largely that equitie (which is afore in the ninth Chapter of the second part shew∣ed, to be in the Enquirie of Office) vnto this chiefe and most vsu∣all act in such Enquirie; that is, of examining the partie by his corporall oath, with answere to some fewe obiections made a∣gainst the equitie and reasonablenes of it, by the Treatisour. Next I meane to shew it to be so far from being contrary to the lawes of the Realme; that by them it is often vsed and practised; with answer to such reasons, as be made to proue the contrarie. Then that the lawes of the Realme, doe allowe it in Courtes Ecclesiasticall. Fourthly, that it is practised and allowed by Ca∣non and Ciuill lawes. And that it is in vse amongst other nations, with answere likewise to obiections made to the contrary. Sixt∣ly, that it is practised and allowed in Gods lawe. Lastly I will (God permitting me) answere their obiections, that out of the worde of God and Diuinitie I haue heard made, to the contrary. First therfore touching the equity of such oath. All enquirie of crimes is made in some of these three sortes. First where neither person nor any deede is knowen to the Iudge (in particular) to be cōmitted; And such are enquiries by grand Iuries at the common

lawe, and Enquiries by Churchwardens and Sidemen in visitati∣ons, at the Ecclesiasticall lawe. This is called Inquisitio generalis, Enquirie, or Enquest generall.

Secondly enquirie is made, when a fact is knowen to bee done, but the delinquent is not knowen. As the Inquisition by a Coroner (vpon some murder committed) at the common lawe: and as the Enquirie vpon forgerie committed in some act of an Ecclesiasticall court; in which kinde of Enquirie, the hidden per∣son is enquired after, in respect of the apparant fact.

Lastly, Enquirie is made against a particular person; where there be presumptions and detections, that some certaine crime is by him committed; but whether he haue committed it or not, it is not certainely knowen: and herein the crime being hidden is enquired of, because of the person, apparantly pressed by some probabilities thereof. The second of these is termed also Inqui∣sitio generalis, but it is not so generall as the first: and the last, is most properly termed Inquisitio specialis.

In the first and second of these sortes of Enquiring, it wil not (I take it) be denyed by any; but that such should be assumed (by the seuerall Iudges and Officers in that behalfe) as they (in their discretions) thinke most fit, and to be most likely to knowe the offendors, and the offenses with their circumstances; and that they be charged vpon their oathes, touching their vtmost knowledge, concerning such Offendors. And may it not then thereby happen and fall out; that an oath shalbe ministered to one, who himselfe is such an offendor as is enquired of? For the grand Iurie (as I take it) haue their oath giuen to enquire, and pre∣sent, their owne, their fellowes, and others faultes, that they shall haue in charge. And yet to auoyde this inconuenience, I trust it will not be thought meete, that al Enquiries by oathes, should be therefore giuen ouer. Then if this be a thing equall and agreeable vnto lawe, to vrge an oath; euen where it may happen the partie that takes it, to be the offendor: why should it not stand with more equitie, to vrge it vpon such an one, as al∣beit he be particularly detected by great presumptions and pro∣babilities; yet may happen neuerthelesse to be most cleare from the crime, imputed to him?

Againe, if one of the grand Iurie being to be sworne would

denie to take the oath, except hee might haue some certaine of∣fenses (vsually giuen in charge) left out and foreprised seuerally out of his oath, least otherwise hee should thereby be driuen to accuse himselfe: or if one supposed, most able to giue euidence, and information to the Coroners enquest, vpon a murder commit∣ted; should desire to bee spared from telling his vtmost know∣ledge thereof, vpon his oath; least thereby hee bee driuen to ac∣cuse himselfe: would the Iudges or Officers hereupon, thinke it reasonable to spare these men and let them so goe; and not ra∣ther repute them to be (in deed) guiltie of those crimes, for which they refuse to take oath, to tell and discouer their knowledges? In like so•…•…t therefore, why should such men, as be probably de∣tected of crimes nothing so penall, and who refuse to take oath to answere them, bee iudged by any man to doe it vpon good ground and conscience? and not rather, that they (as those o∣thers) refuse it, vpon guiltines of their owne conscien ces?

As the equitie of this oathe is shewed by the former com∣parisons; so may it also by consideration of the crimes and the qualitie of them, whereupon it is tendered in courtes Eccle∣siasticall.

None of such crimes haue any punishment appointed vnto them by the temporall lawes of the Realme: and by the ecclesia∣sticall Iurisdiction (whereby they onely rest punishable) the pe∣naltie is farre milder then for those crimes, and the like, was in∣flicted by the Iudiciall lawe of God, giuen to his peculiar people: yea not to be accounted (in very trueth, and for the most part) so much a punishment as a medicine, tending to the reformation of the delinquent (principally:) and secondarilie to the terrour or satisfaction of others.

Out of this number of medicinable punishments, I onely do ex∣cept incorrigible heresie, Atheisme, and Apostacie from Christia∣nitie: which (for the horrour and danger of them vnto others) ense resecantur, ne pars syncera trahatur. Both these three, and the rest are in such abhomination with Almightie God, so mani∣foldly dangerous to the offenders soule, so noisome and preiu∣diciall to the lawes, and vnto all ciuill societies of men in a com∣mon wealth: that no well aduised man will thinke them meete

to be suffered to take roote and growe, but rather by all meanes possible to bee discouered, and corrected. But being workes of darknes, & by the very remnants of those sparkes of the know∣ledge of honest and vnhonest, iust and vniust (that continue with vs since Adams fall) euen by them that commit them, they are cōdemued to be such, as had need to be shrowded in all secrecie. And therefore they are of that qualitie and nature, as cannot (lightly by any possibilitie) be discouered, but either by the par∣ties themselues, or by other partakers with them in the verie crimes; and (thereby) parties also to the same offences. Yet (as Tertullian saieth) a malefactor for the most part leaueth some footesteps and traces behinde him, which may serue to good purpose, for his discouerie. Whereupon it commeth to passe, that presumptions fall out to be knowen abroad, of great likelihood and probabilitie; that such crimes and offences haue bene com∣mitted and done by such a person. So that when great bruites and fames hereof doe flie abroad to the offence of the godly, to a scandall and a stumbling blocke vnto the weake Christian, and to the obloquie of our holy faith and profession, with the com∣mon aduersarie: wee must either permit such a supposed delin∣quent and thus discouered, to bee examined by his oath touching the crime, and materiall circumstances of it: or else must wee suffer sinnes and grieuous enormities (so they bee closelie com∣mitted) to growe vp and take strength without controlment; till they haue gathered that head, that they shall bee able euen with their peize and grieuousnesse, to ruinate both Church and Common wealth. which if it bee vnreasonable and vngodly (all things afore weied) then that whereupon it followeth must needs be absurd also.

If in hainous and daungerous crimes to the person of the Prince or state of the kingdome (whereof there be good pro∣babilities and presumptions agaynst some person) it bee hol∣den necessarie and lawfull Policie; to torture the supposed de∣linquents, that they may confesse, albeit it bee capitall to themselues and to others also in the highest degree: is it not of as great equitie in crimes of no lesse secrecie, and some of them in no lesse execration with Almightie God then these, to

vse the meanes of the parties oath; where no capitall, nor (often∣times) no corporall, yea (for the most part) where no punishment at all (properly) so to be called, but a correcting and reforming of the partie, is intended?

When there be great presumptions of complots laied, that are dangerous to the Prince and whole state: is it holden good policie, to let the parties alone (without either torture or exami∣nation) vntill some will voluntarilie offer himselfe to be an Ac∣cuser, and to bee able to make proofe of them, though the par∣tie bee neuer once examined? I feare mee greatlie, if this were holden for lawe and equitie; such great and secrete offences would neuer come to Iustice, till there were no man to admi∣nister it, but the offenders themselues. And may not then the like be conceiued iustlie of crimes subiect to Ecclesiasticall cen∣sure and Iurisdiction?

In the diuision of the seuerall kindes of oathes, there are men∣tioned certaine, (euen where two parties bee formally in iudge∣ment) that be necessarie to bee taken by the other partie, when as the suite is but betwixt two priuate persons, and touching their owne priuate commoditie and interest. They are tendered by the Iudge sometimes at the onely petition of one of the par∣ties, and then it is called Mercenarium Iudicis officium, as of more base qualitie, in that he doeth nothing, but that, which he is (in some sort as it were) vrged vnto: and sometimes are offe∣red by the Iudge himself ex officio, without petition of either par∣tie, as in equitie he seeth cause: and then it is called Nobile Iudi∣cis officium (touched also afore) as being of a more high and wor∣thie respect, and of greater regard.

Of these sortes are Iuramentum calumniae, veritatis, & Pur∣gationis. All these by lawe are necessarie to be taken. for 1 1.6 if they be refused, being so tendered, hee is ouerthrowen (in his cause) that refuseth; and is holden pro confesso & conuicto. And yet very often it falleth out, that by such oathe, the partie is drawen to discouer his owne dolum malum, couine, fraude, or mal-engine, and other also his owne lewdnesse; both preiudiciall (by lawe) to his honestie and good name, and also otherwise penall to himselfe. For examples sake by the nature of Iuramentum ca∣lumniae, hee is to discouer (in some sorte) euen the cogitations

of his heart in that behalfe; viz. 1 1.7 That he standeth in lawe or af∣firmeth something in a full opinion and confidence; that hee hath of his owne right, and that the suite, as hee mainteineth it, seemeth to him good and iust. And 2 1.8 further, that what soeuer he shall be asked a∣bout that matter; he shall answere it from time to time truly: & that he neither hath fraudulently giuen, nor will after giue, or promise to giue any thing, to corrupt the minde of any man, that hath to iudge in that cause.

Nowe if in a priuate cause, betwixt priuate persons, suing but for priuate benefite and commoditie, and at one of their petiti∣ons per mercenarium Iudicis officium, his aduersarie must of ne∣cessitie take such an oathe touching matters (perhaps) of his owne fraude and lewdnesse; and to the discouering (often∣times) of matters criminall and penall to himselfe, or else must loose his suite, and bee condemned as conuicted, by his owne presumed and implied confession, and this both by the Canon and Ciuill lawes (being the Common lawe in both courtes, of all other nations abroad in Christ endome:) then in a publike cause mooued by the Iudge ex nobili officio, where hee seeth by his dis∣cretion and direction of lawes, good cause in equitie, for the pub∣like interest that the Church and Common wealth haue, that sinnes be punished and repressed; for discharge of his duetie according to the trust reposed in him, and not of malice or to pull any pri∣uate benefite from the partie: how much more is it herein equal and necessarie, that an oath be ministred to such presumed delin∣quent, for the discouerie of the whole trueth? or else if hee stub∣burnely shall refuse, that he bee holden (as in the other case a∣fore) pro confesso & conuicto?

When an enemie of malice or for other sinister respect doeth accuse a man of a crime, iudiciallie; and brings him there∣upon into question and great danger; if he cannot make suffi∣cient proofes for his condemnation, yet by probable presump∣tions hath so touched him, as thereby hee becommeth vnto the Iudge iustly to bee holden suspected thereof: In this case, (by both the lawes aforesaid) the Iudge is to giue an oath of Purga∣tion to the suspected person, touching that crime; which if he shall refuse, he is holden as conuicted of it: whereby it may hap∣pen, that his accuser is more gratified and pleasured, then by any

proofes that him selfe could bring, or could otherwise procure. Is there not then much more equitie, when the question and en∣quirie of the crime is stirred vp for a better purpose; and with∣out any such malitious accuser; that vpon like presumptions and probabilities, the like oath should be giuen and tendered by the Iudge, to such supposed delinquent?

Can any man giue a sound reason, why it should seeme equall, that when an enemie gaue the first occasion, pars reae should then (vpon presumptions) be vrged to take the oath, or els to be condemned of the crime; And that it should not bee much more equitie for him to take it; when the Iudge (for his dueties sake, and stirred vp by probable inducements) doeth originally call him into question?

And when a man is pressed with such probabilities as the Iudge findeth to be sufficient thereunto, hee is iustly put to his oath of clearing himselfe, if hee so can; and so this tendeth (in some sort) to his owne benefit. Is it not much more reason then, that vpon the like presumptions appearing to the Iudge, hee be vrged to that oath, to tell the whole trueth of the matter, with the pertinent circumstances, aswell for the publike benefites sake of the common weale, as for his owne good, and escaping of punishment?

Some may perhaps here aske, why the proceeding by the Iudge of Office should bee more priuiledged in this behalfe, then when a crime is proceeded against, by an accuser or party? For in the very beginning of the sute, the Iudge proceeding ex officio may require the oath of the supposed delinquent tou∣ching both circumstances and crime: but when hee proceedeth by way of accusation, albeit in courts Ecclesiasticall, the partie conuented may be examined by oath vpon other matter of cir∣cumstance, yet hee may not so be examined touching the very fact and crime, or any thing neerely or presumptiuely tending thereunto; vntill by sufficient presumptions, the Iudge be indu∣ced, to account him greatly to be holden suspected.

This question (almost) doeth answere it selfe: for when the Iudge proceedeth by enquirie; before hee offer the oath to the partie, the presumptions against the partie are knowen vnto the Iudge: but when by way of accusation, till the accuser haue

brought in such proofes as hee can, they are not knowen vnto him. Besides, the Accuser doeth it of malice, or for reuenge, or for other satisfaction of his owne priuate humour, for the most part: But the Iudge (by common entendement) doeth it of sin∣ceritie of minde, and for the good of the common weale.

Againe, 1 1.9 those that be conuicted vpon such Enquirie, are (most vsually) punished by some milder punishment, then when they are connicted vpon an accusation: yea and in ecclesiastical courts sometimes, not so much as punished at all corporally; but meanes onely of inducement to repentance, are vsed towards them.

All which being ioyned to that which hath bene afore spo∣ken of the equitie of Enquirie ex officio, doe sufficiently (I trust) recommend both the generall equitie of the vse of this oath, and also the great necessitie of it in sundry causes, and vpon diuers occasions.

But the Treatisour, towards the very beginning of his dispu∣tation against these oaths, surmiseth; that in iustification of the equitie and conueniencie of them, it will by vs be alledged, that the same is requisite for the Enquirie, and finding out of suspected faultes, whereof there is no proofe: and to search and trie the euill mindes and corrupt consciences of dangerous dissemblers, and so ne∣cessarie for the gouernement of the Church and common wealth. He that may penne his owne Commission, will commonly make it large enough: and he that may be allowed to frame and tem∣per his aduersaries armour, is likely to make it thinne and slen∣der inough. Were it then any maruell, though this man should throughly answer such obiections, as be wholy of his owne fra∣ming? You are to vnderstand, that by this worde the same, in this place vsed; he vnderstandeth generall oathes for a man to dis∣couer all his thoughtes, wordes and deedes: whereof he had spo∣ken in the sentence afore: and this is the false issue which (in the Epistle to the Reader) I haue noted to bee by him tendered: agaynst which, if any reason materiall had bene brought by him: yet it were but 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that is, fighting with his owne shadowe, and nothing touching any lawe or practise in this Realme.

In way of retortion against vs vpon this obiection, he infer∣reth, that all such are iustly reprooued, who haue practised and put in

vre this generall oath, where otherwise there was sufficient proofe. But he may not thus cary away this later point which he inter∣laceth, viz. that there is no lawfull vse of any defendants oath touching a matter criminall, where other sufficient proofes may be had. For these absurdities hereupon would followe: First where no witnesses are knowen to the Iudges aforehand (though they come in after the parties oath taken) that there a man by his owne periurie should bee for euer cleared and acquited, and so (without any punishment or other worldly danger) hee might heape one grieuous sinne vpon another. Secondly that a mans owne single oathe in his owne cause, yea and for his owne clearing should bee as effectuall and powerfull, as any two * 1.10 mens oathes (by Gods worde) are allowed to be, tou∣ching another mans fact, whether it tende to acquitall, or to condemnation. Thirdly it would thereof follow, that all oathes in causes criminall should be of purgation) and clearing onely, and none at all of Enquirie.

But the Treatisour himselfe reasoneth also in this his booke against all cathes for purgation: So that vpon the whole mat∣ter, hee maketh all kindes of oathes by defendants touching their owne offenses or misdemeanors to be simply vniust and vnlawfull: The contrary whereof in both will (I trust) be proo∣ued. Lastly it would hereupon follow, that not onely Ecclesia∣sticall Courts, but (for auoyding like iniustice,) the Starre-cham∣ber also should be barred, from giuing an oath in any criminall cause to the defendant, where the matter may (perhaps) bee prooued by witnesses.

But (I pray) howe can either the Court, or the prosecu∣tour tell precisely, what the witnesses will or can prooue, when they come to depose, by vertue of their oathes? For many a man when he is sworne telleth another tale, then he did afore, when his tongue walked at libertie.

Therefore (by this opinion) the Iudges for giuing the defen∣dant such an oath, shall so long remaine vnder a doubtfull dan∣ger to haue dealt vniustly; vntill (by the euent of the sute) it might be discouered; that the matter (indeede) coulde not bee proued by witnesses.

The Treatisor, in refuting ex absurdo his own absurd obiectiō; bringeth in (by the way) that these general oathes would enforce men to accuse themselues to their publike shame, reproch, or condem∣nation: and their naturall parents, deerest friends, and neerest neigh∣bours: or else for auoyding of such mischiefe and inconuenience, to commit most wilfull and damnable periurie: and the Notegathe∣rer sayth it is vnnaturall: which because it will be (perhappes) applied also to all oathes giuen euen in a particular criminall cause, and for that he thinketh this a matter very absurde; there∣fore it requireth some briefe answere.

When a man vpon some such sufficient inducement, as is spo∣ken of in the second part, is brought before a Magistrate (by spe∣ciall Enquirie) vnto examination: his discouery against himselfe or other, neither by Gods Lawe, nor yet by mans Lawe is taken for an accusation vnnaturall; but a necessary confession of trueth, whereby God is glorified, sin punished, & the common wealth benefited, howsoeuer the partie susteine thereby some touch in his reputation. Be not 1 1.11 ashamed (saith Ecclesiasticus) to tell trueth for the good of thy soule: for there is ashame that bringeth sinne: and there is ashame that turneth a man to honour and grace: and there∣fore, he 2 1.12 saieth afterward: Doe not gainesay the trueth in anie the least point: but be ashamed of an vntrueth, though it proceede from thine owne ignorance. Be not ashamed to confesse thy sinne: and stop not the course of the floude. And therefore (in such respect) hee ought not to refuse to take and performe his oathe; as more ful∣ly (God willing) remaineth to be shewed hereafter.

Another obiectiō he also maketh falling not vnaptly into this place, viz. that where losse of life, libertie, member of the bodie, or good name may ensue, there the presumption of periurie is great: and where it is so great, the sentence of the Magistrate trusting to such an oathe, is grounded but vpon aweake and feeble foundation. So that in this his presumptiō of periurie, he matcheth (without any good reason) the danger of losse of good name, with danger of life, libertie, and limme. with better reason he might haue put in losse of worldly goodes: and then by necessary consequence hee had ta∣ken away the vse of al oaths in euery subiect matter whatsoeuer. For who knoweth not, that for attaining riches and substance; most worldly men, not onely doe willingly hazard their good

names, honesties and reputation: but that many doe also appa∣rantly aduenture (for them) their liberties, limmes, liues, and soules? Therefore, if for feare of periurie, none oaths may be ten∣dered, whereby a mans good name, may be questioned or impea∣ched, much more then ought they not to be; where a mans welth and substance (which most men doe most thirst after) may be a∣ny way thereby impaired, it is vpbraided as an affectiō too com∣mon with all men: O ciues, ciues, quaerenda pecunia primùm, Virius post nummos. Vertue, honestie, and good reputation, are esteemed by many degrees, woorthie to come behind riches. and there∣fore I answere, that where a crime is (in some sorte) detected vnto the Magistrate alreadie: the presumption is more strong, that most men being sworne, will rather deliuer a trueth, yea though it touch themselues, or their friends (somewhat) in repu∣tation; then that by periuring themselues, they wil throwe both their owne bodies and soules into hell: Nemo praesumitur imme∣mor salutis aeternae, saieth the lawe. In deed where the Iudge hath good and probable inducements against some speciall person, that he is like (in any cause whatsoeuer) to forsweare himselfe: there (as was said afore) he ought to forbeare, to tender an oath. But it may not therefore bee made generall, as if no man at all should be vrged to take an oath, for feare of being periured. Yet the Treatisour here doeth seeme to encline this way: in making an oath to bee ouer feeble a foundation, to ground a sentence vpon. Why? if the partie confesse against himselfe that which is obie∣cted; shall he be thought but to dallie, and to haue a longing to be punished, so as the Iudge may not safely take him at his word, and giue sentence against him? If a prisoner arrained pleade guiltie: what needes either euidence, or Iurie to be vsed; Confes∣sio est liquidissima probatio, & plusquam probatio. But if he denie it; yet if the proceeding in a court Ecclesiasticall, be to his purgation alone; he is not to be acquited without a competent number of Compurgators: neither yet is he for euer so to be cleared, by the Iudges sentence; but that euen after such purgation; good proofes touching the very fact it selfe (if any can be made) are to be ad∣mitted. which case happening, he is punishable both for the fact it selfe, and for his perturie.

But when the proceeding is by way of enquirie, for punishment

or for reformation: then albeit the defendant deny it, neuerthe∣lesse witnesses or other proofes (if any may be had, either then or afterward) are to be vsed against him. And therefore in such case as lawe alloweth sentence to bee giuen vpon the defen∣dants oath; yea or vpon iudiciall confession without oath; it is no feeble, but rather a most strong foundation for the Iudge to build vpon.

The Note-gatherer no lesse missing the cushion and matter in issue, then the Treatisour; reasoneth thus against oaths (which they call generall, vnto all thoughts, wordes and deeds:) Her high∣nesse (saieth he) hath oftentimes caused to bee openly notified in the Starre-chamber, that her gracious meaning is not, to search into mens consciences; or to force the same; but onely to extend the lawes vpon crimes committed either in word or deed. Belike if a man keepe not his conscience (as he calleth it) to himselfe, but vseth some ouertword or deede, hee will then (I hope) permit the partie de∣fendant to bee interrogated by oath, (as in the Starre-chamber) touching such a crime. which if he will grant, let him, as much as he thinketh to bee for his ease; exclaime still, against all such Ordinaries and Commissioners Ecclesiasticall, as shall happen to giue such oath more generally, or without any ground prece∣dent of inducement thereunto, by lawe allowed. for these vn∣true imputations, will not touch any person or practise, that I haue heard of to bee vsed, since her Maiesties happy raigne. Thus much for the equitie of the defendants oath in some mat∣ters criminall; and in answere of obiections, made agaynst the conueniencie of it.

Notes

• 1 1.1

  Iob 2. V. 4.
• 2 1.2

  Part. 2. ca. 10. pag. 93.
• 3 1.3

  Iul. Clar. lib. 5. § finali. q. 45.
• 1 1.4

  Aug. de decoll, Ioh. Bapt. ser. 11.
• 2 1.5

  Aug. ibidem.
• 1 1.6

  l. 2. & Authen. principales. C. de iuram. calum∣niae. Marr. de iu∣ram. cal nu. 6. Cuiacius. li. 9. obs. ca. 37.
• 1 1.7

  l. 2. C. de iu∣ram. calumniae.
• 2 1.8

  Ibid. & d. Au∣then. principales. §. i. Instit. de poena temerè li∣tig. Nou. 49. c. 3.
• 1 1.9

  Panorm. in c. per Inquisitio∣nem: de electio∣ne. &c. inquisi∣tionis, extra, de accusat.
• * 1.10

  Vide de hoc plura. ca. vit. 3. partis.
• 1 1.11

  Eccles. ca. 4. vers. 24. 25.
• 2 1.12

  Ibidem vers. 30. 31.