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

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

qualitates. so that both these runne to one point, sauing that hereby is affirmed, a citation may not be made to the intent a Lay man shall take an othe, sauing in those two cases.

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

But it appeareth by discourse vpon the former opinion, in how many sundry causes of litigious Iurisdiction, (besides Testa∣mentarie and Matrimoniall) Ordinaries may holde Plea (by the Lawes of this Realme) according to the course of the Queenes ecclesiasticall Lawes. That the ecclesiasticall Lawes doe require this course (with the cautions aforesaide,) I thinke no man that knowes any thing in that Lawe, will make doubt. A Plea is a conflict in cause of Iudgement, betwixt one that affirmeth, and another that denieth. There be but two wayes (besides the parties confession, which is not properly called a proofe) to

prooue any thing: that is, by witnesses, or by a publicke instrument, called by the Common Lawe, matter of Record. Now if witnesses might not be vrged to testifie vpon othe, in any causes but Testa∣mentarie or Matrimoniall; then could no Plea be holden in any other cause, when the chiefest and most vsuall meanes of proofe in recent facts, be taken away.

This libertie and priuiledge of holding Plea in the causes a∣fore shewed, and in this maner as is now claimed, 1 1.1 by the goodnes of Princes of this Realme, and by the Lawes and customes of the same (as a statute rehearseth) appertaineth to the Spirituall Iurisdiction of this Realme, and hath bene in all ages, vsed in Courtes Eccle∣siasticall without impeachment, as by the Recordes thereof may appeare. And therefore, vpon any singular conceite (newly taken vp by some priuate persons) it is not safe to be nowe thus questioned, and oppugned. There is an olde Statute in force (as I take it) that may greatly bridle such newe quirkes, ex∣cept men were marueilous well assured of the groundes of so great and so generall an innouation. For it is enacted, that 2 1.2 great Officers about the King, and in his Courtes of Iustice, shall from time to time forwarde, bee sworne when they shall be put in Of∣fice, to keepe and mainteine the priuiledges and franchises of Holy Church, &c.

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

Againe, if no Lay witnesses may be called to testifie in any other matter; then should most men in those causes, be hereby either quite foreclosed of their right; and many grosse sinnes should passe wholly without reformation or punishment: or else

all such matters must needes be prooued, onely by such wit∣nesses that be of least indifferencie; and therefore of least trueth and credite. For those men be alwayes most indifferent, which either be friendes, or at least be no euill-willers, to either partie. Nowe seeing euery deposition must needes tende to the grie∣uance or hinderance of the one partie or the other: can it be pre∣sumed of him which loues both, and doth wish alike well vnto them, that he will willingly and gratis without any processe come and depose, and thereby doe one of his friendes a displea∣sure? there resteth then, that onely such will offer themselues to testifie; who either be enemies vnto both, or friendes to one, and either enemies or strangres to the other (and howe can these be vpright & indifferent witnesses?) or else such who be meere stran∣gers vnto both sides. but it doth most rarely happen, that meere strangers vnto both, shalbe able to depose any thing to purpose: and more rare will it be, that such will offer willingly of them selues, to come in ad testificandum. Besides these and many such like absurdities, necessarily ensuing this opinion; if it be yet still stoode in, that the Common lawe permittes compulsion of lay men (whether parties or witnesses) to take othe in causes testamenta∣rie and matrimoniall, but denies it in all other cases: let vs consi∣der, what may be imagined for a probable reasō of such differēce in proceeding betwixt causes that belong to the conisance of the selfe same courte. For I haue read and often heard, that the Common lawe is grounded vpon good and sound reason. And it cannot be said in this case: quamuis durum sit, tamen ita lex scripta est. for that this is no statute, or written lawe; but onely the re∣ported opinion of one man, whence all the rest haue since taken it. Was it then meant, to giue vnto subiects an ample meanes of comming by their rightes in these two causes: but to restraine or debarre them in al other, as namely for tithes and other rightes demaundable in ecclesiasticall courtes? or was it the purpose of that lawe, to haue men stand conuicted of most grieuous crimes that be of ecclesiasticall conisance (as happely of Heresie) being neither by them confessed, nor yet proued by sincere and vpright witnesses: but onely by such, as doe thrust them selues in to beare witnesse; whom not onely common speach, but also sundry sta∣tutes doe terme Accusers, and therefore doe hold at least for par∣ties

and men not indifferent? May not many other ecclesiasticall causes be of as great importance & preiudice, as (perhaps) a will of goods vnder xl. s. or a trifling legacie, or a x. pound matter, pro∣mised with a woman in mariage? and if the law had bin so, could no man hit of it from the Conquest, vntill our fathers time, when Fitzherbert writ his nouanatura breuiū? was none of skil in Edw. the 1. time, to put it into the statute of circūspectè agatis: or in Ed. the 2. times, to mention it in the statute of Articuli Cleri? did none reade it in the Register that vnderstoode it, before Fitzher∣bert? or was it not put downe there, but in some late copies, as is most likely? And after he had set it downe, would not the law in that behalfe haue bin vrged against sundry Bishops, that practised the contrary in K. Hen. the 8. time, & continually since, if that o∣pinion had bin holden for good lawe? Touching this matter, the Treatisour saith thus in effect: that the not cōpelling of witnesses to sweare & to depose their knowledges, brings none other preiudice; but that the partie plaintife, faileth in his proofes thereby. Why? is that no small preiudice, for a man (which hath in deede a right) to haue the causes goe against him, through the wilfulnesse of witnesses, y^t neither will come of thēselues, nor may be cōpelled by others, as this opiniō importeth? Is not this to giue cause of ac∣quiting the wrōg doer, & of cōdemning him that hath the very right? and doth it not nourish or at least tolerate that sinne in the witnes, which i•…•… cōdemned by the law of God in these 1 1.3 wordes, viz. If any haue thus sinned, that is, if he haue heard the voyce of an oath, & he can be a witnes, whether he hath seene or knowen of it, if he doe not vtter it, he shall beare his iniquitie? In which place I doubt not, but all such be included; who knowing the matter which is in examination or question before a Magistrate; shall refuse ne∣uerthelesse (being duely called) to giue testimonie to the trueth, according to their knowledges. The Treatisour further saith: that it may be sufficiēt for a court ecclesiastical, to haue no better meanes for bringing in of witnesses to testifie, then tēporall courts haue. Truely if they might be allowed the same; I thinke none of them would desire any better. For when a witnesse is vnwilling to depose, vnlesse he be vrged by processe: what is more vsuall in tēporall courts, then to haue a sub-poena to charge him to appeare, and to testifie, at such a time & place? But because by this his say∣ing

(it seemeth) he entendeth, that the course of vrging witnesses to testifie (as is claimed, & alwaies hath bin vsed by courts eccle∣siasticall) conteineth some repugnancie against the lawes of the Realme: therefore, for cleering of that point, I wil briefely shew, that it is not so much as a diuerse, and much lesse a contrary or re∣pugnant order, vnto the lawes of this Realme.

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

It would be ouer tedious to set downe the sundry cases repor∣ted by the booke of Assiles to this effect: viz. that where a deede is pleaded & denied; and processe against the witnesses is desired; that it shall go out to call them to testifie. It wilbe sufficient to referre you, to 1 1.4 Brookes Abridgemēt, where they be gathered: (yea though the actiō be 2 1.5 personall) if a deede with witnesses at it be pleaded & denied: pro∣cesse shalbe awarded for the witnesses per Markham & Rolfe.

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

By statute; 3 1.6 Iurours for triall of Periurie, are appointed to be fined, if they refuse to make apparance.

Likewise if any 4 1.7 witnesse be serued to testifie in a court of Re∣corde, and hauing tendred (according to his countenance) his necessa∣rie charges, doe not appeare: he shall forfeite tenne poundes, and make further recompence, according to the losse. So that we see, it is no contrary or repugnant course to the Common lawes, to haue witnesses vrged to testifie; being there also practised. But if here it be replied, that the Common lawe forbiddeth it vnto courtes ecclesiasticall, sauing in those two cases: it will easily appeare, that it is so farre from being forbidden, that it is indeede allowed vn∣to them, by Common lawe and by statutes. There be very many precedents in the Register of consultations graunted, vpō debating of the seuerall matters there, after that prohibitions had bene pur∣chased: in euery of which almost general wordes of allowance of the maner of proceedings, according to the lawe ecclesiasticall, be conteined, as 5 1.8 namely allowing of the proceeding iuxta Canoni∣cas sāctiones. & setting in the end of euery cōsultatiō there (except

two or three) these or the like wordes in effect, viz. Cicitè proce∣dere, & vlteriùs facere poteritis, prout ad forum ecclesiasticum noue∣ritis pertinere prohibitione nostra non obstante.

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

Iustice Brooke in his Abridgement, both testifieth that by the Ciuill lawe, witnesses (which wilbe holden indifferent) should not come till they be called, and setteth it downe as a matter woorth the noting; whereby may be gathered his allowance thereof. The 1 1.9 wordes be these: By the Ciuill lawe, Accusers be as parties, and not as witnesses; for witnesses ought to be indifferent, and not to come till they be called: but Accusers doe offer themselues to Accuse &c. quod nota.

That by the Ciuill and Canon lawe witnesses may be vrged to giue testimonie, and in what sort, wil appeare by this distinction. By the Ciuill lawe, 2 1.10 witnesses may be vrged to giue testimonie, and that without distinction, whether the cause be Ciuil or Cri∣minall: be Ciuilly or Criminally, directly, or by way of exception moued: except their persons be priuiledged. As by 3 1.11 the law Ciuill men of 70. yeeres of age be in this behalfe; viz. that they may not (against their willes) be vrged to testifie.

By the Canon lawe, if the cause be Ciuill and not criminall, wit∣nesses may be compelled (without distinction also) except they be persons priuileged. Neuerthelesse euen 4 1.12 priuileged persōs may be cōpelled, in want and defect of other proofes; that the trueth may be found out.

If the 5 1.13 cause be criminall, whether Ciuilly or criminally moued, so the action be directly moued for the crime, and not by way of exception or barre onely: witnesses are to be compelled. sauing that by later Canons; Clerkes were not to be compelled to testi∣fie, 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 punish∣ment, (as vpon excepting a man to be criminous, who then is to be preferred to a dignitie, to a benefice, or vnto orders) in which case any witnesse may be compelled to giue testimonie: or else no penaltie can thereupon follow, (as when the exception is ta∣ken onely to repell a man from testimonie or accusation) and in this case witnesses are not compellable, except the partie who excepteth, be like to be grieuously thereby preiudiced; if his witnesses cannot be gotten to depose.

There is nothing more conuenient, then that euery court should vse his peculiar course of proceeding, by that law (wher∣in they deale) prescribed. And therefore 1 1.14 lay mens matters in a Court ecclesiasticall, are to be handled according to the maner of proceeding by that law required: euen as 2 1.15 clerkes shall and ought to be dealt with in temporall or ciuill courts, after the maners and or∣ders of those courts.

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

But to descend yet to more particulars: the Kings tenants may 3 1.16 be cited before their Ordinaries as others. Therefore both they and others (though Lay persons) may be cited in all causes of that iurisdiction: neither is it there distinguished, whether they come in as witnesses, or as parties. Also they may 4 1.17 as others be excommunicated, for their manifest contumacie. This contumacie (after appearance) groweth onely vpon peremptorie refusall to performe some decree or commandement of the Iudge, as in re∣fusing to be sworne, or to be examined, being sworne. Seeing then for manifest contumacie the Kings tenants or others may be excommunicated, and this is indefinitely set downe: it will fol∣low, that as in any other not performance of the decrees of the Iudge (according to the ecclesiasticall lawes) so in refusall to be

sworne, whether he be partie principall or witnes, there is mani∣fest contumacie. Vbi lex non distinguit, nec nos distinguere debemus.

Particularly in matter of tithes (being neither a cause Testa∣mentarie nor Matrimoniall) the 1 1.18 contemners of the processe, lawes and decrees of the Ecclesiasticall courts of this Realme, are by sta∣tute condemned: but an vrging to answer or testifie vpon oath, is a decree of an Ecclesiasticall Court, ergo, may not be contem∣ned. The Ordinarie 2 1.19 in a suite of tithes for any contempt, contu∣macie, disobedience, or other misdemeanours (vpon complaint) may haue the partie committed, till he shall be bound to giue due obedience to the processe, &c. decrees, and sentences of the Ecclesiasticall court of the Roalme: but requiring a parties or a witnesses oath, is such a decree. Therefore, &c.

Likewise by another statute, 3 1.20 the Ordinarie may conuent for withholding tithes according to the lawes Ecclesiasticall: therefore he may conuent and cite a man Lay or other (if he be supposed to be a withholder) to answere vpon his oath. For so is the Ec∣clesiasticall law.

Further, by that statute, the 4 1.21 Ordinarie may proceed to hearing and determination &c. according to the course and processe of the ec∣clesiasticall lawes: but the processe and course of hearing by that law, is by the parties personall answere vpon oath, if it be required; and by compulsories of witnesses to depose by oath, as is afore touched. Therefore, &c.

The statute of 5 1.22 king Edward (touching tithes) prouideth, that both they and the costs, charges, and expenses in the suite shall be reco∣uered before the Ecclesiasticall Iudge, according to the kings Ecclesi∣asticall lawes: but for recouery of them, those lawes require (in cases aforesaid) both oath of partie and of witnesses: ergo, &c. By that statute is established, that the 6 1.23 Ordinarie euen for perso∣nall tithes may call the partie afore him, and by his discretion examine him by all lawfull and reasonable meanes, other then the parties owne corporall oath, concerning the true payment of such personall tithes. Ergo a corporall oath is in other ecclesiasticall causes a lawfull and reasonable means: for, exceptions are alwayes of the nature of the rule, and should be within the rule, if they were not excepted; and therefore also in all other tithes, as prediall and mixt, it is a lawfull and reasonable meanes to put the partie vnto his oath, quia

exceptio firmat regulam in casibus non exceptis.

The statute for Vniformity of Common 1 1.24 prayer, authoriseth ec∣clesiasticall Iudges to enquire, to take accusations, and informations, and to punish the breaches of that act &c. in like forme as before had bene vsed in like cases by the Queenes Ecclesiasticall lawes: but in like cases (by those lawes) oathes both of parties & witnesses haue bene vsually taken. Therefore, &c.

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

Notes

• 1 1.1

  24. H. 8. c. 12.
• 2 1.2

  15. Ed. 3. c. 3.
• 1 1.3

  Leuit. 5. V. 1.
• 1 1.4

  Brooke titulo testmoignes.
• 2 1.5

  1. H. 6. 5.
• 3 1.6

  23. H. 8. ca. 3.
• 4 1.7

  5. Eliz. ca. 9.
• 5 1.8

  Reg. in br. orig. fol. 56. b. & fol. 57. b.
• 1 1.9

  Brooke tit. Corone. nu. 220.
• 2 1.10

  l. si quando C. de testibus.
• 3 1.11

  l. inviti. ff. de testibus.
• 4 1.12

  Panor. min c. dilectorum. de testibus cogendis.
• 5 1.13

  Alphon. Villag. lib. 3. ca. 15. con∣clus. 12.
• 1 1.14

  Anton. in c. quod clericis. de foro compe∣tenti.
• 2 1.15

  Bartol. in l. 3. § fin. ff. de testibus.
• 3 1.16

  Artic. Cleri. 9. Ed. 2 cap. 12.
• 4 1.17

  Ibidem.
• 1 1.18

  27. H. 8.
• 2 1.19

  Ibidem.
• 3 1.20

  32. H. 8. cap. 7.
• 4 1.21

  Ibidem.
• 5 1.22

  2. & 3. Edw. 6. cap. 13.
• 6 1.23

  Ibidem.
• 1 1.24

  1. El•…•…z. cap. 2. ad finem.