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. X. An answere to some further obiections made against the conue∣niencie and reasonablenesse of proceeding against crimes of Office.

TO crosse the necessarie practice of proceeding by Office, 1 1.1 the Note-gatherer assigneth sundry inconueniences by him surmised to arise thereof. First, (saith he) In treason and felonie chalenge is admitted to the Accuser: here none. For it is in the Ordinarie to admit one to infourme, and to wit∣nesse againe in the cause, wherein he was before deposed, to the con∣trary. What these last wordes, viz. to the contrarie, doe serue for here; neither I, nor perhaps the Author himselfe of the Notes, can coniecture. If Acouser here be taken for a witnesse (as is afore shewed:) then I must tell him, that challenges and exceptions a∣gainst witnesses not onely be allowed vnto the defendant at the lawe Ciuill and Ecclesiasticall; but in a farre more beneficiall man∣ner, then is receiued by vse at the Common lawe of this Realme. For it is commonly said (howe truely I am not to discusse) that a

witnesse ought not to be receiued nor deposed vpon his oathe for the prisoner, as being against the Queene. And if such be per∣mitted to speake at the prisoners request (as some seldome times hath bin) and be not sworne thereunto: what credite will the Iurie giue vnto his bare wordes? nay what credite may they giue to them, and saue their owne oathes; who are sworne to dealc according to their Euidence; which cānot be so termed, except it be vpō oath, vpon matter of record, or vpō the parties cōfession.

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

That is true in part, which he saith, that in 1 1.2 enquirie of office, a Iudge (by the Ciuill lawe) may examine him which denounced the matter, as a witnesse therein. Yet it is not generall in euery denoun∣ceour or preferrer vp vnto the office, but onely in such as be officers specially appointed, & sworne for that purpose. Now what wāt of equitie, or what iniustice is herein, seeing perhaps such know∣eth the matter best, & was the man that infourmed his fellowes of his particular knowledge therein, which made it to be presē∣ted? May not one single man in a graund Iurie doe the like? And what should hinder such a man afterward to giue also particular euidence therof at time of the triall? For is there any course more vsuall, then for him that preferres vp the enditement, & giues eui∣dence to haue it found; to be also a witnesse, & to giue euidence of the very felonie, &c. at the prisoners triall for life and death?

But if it were true, that euery Infourmer & prosecutour might be examined also as a witnesse (which is very vntrue both by lawe and practice) howe could this proue, that which he aduou∣cheth; viz. that no challenge against the Accuser is admitted in Courtes Ciuill and Ecclesiasticall, seeing both against prosecutors and witnesses by the Ciuill & Canon lawes, exceptions or challen∣ges

may be taken? And though it were true, that this were gene∣rally allowed, and were also an inconuenience: shall therefore the examining of one for another, when he ought not in equitie to be, ouerturne all proceeding of office as vnreasonable, which is the drift at which he aimeth?

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

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

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

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

For when the ecclesiasticall Iudge denieth the copie of the Li∣bel where he ought not, to the preiudice of the partie, in this re∣spect: then the statute of K. Hen. the 5. and a writ therevpon fra∣med, doth relieue him. And denying copies of libels, needed not to * 1.3 haue bin cōplained of at that time as a grieuāce, if the law had bin, that vpon the parties owne suggestion only, without sight of the Libell, the temporal Court might at pleasure award a Prohibition. So that this not expressing of cause in the Citation, and denying copie of the Libel, is so farre from being a meanes to drawe causes from the Common law vnto those Courts; that it is of it selfe suffi∣cient to bring thither by Prohibition causes originally being of ec∣clesiasticall Conisance.

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

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

may stand sound and good; though all that which Sir Thomas More defendeth in dealing against heresie (without Present∣ment, fame, &c: especially where the penaltie is so grieuous) were to be condemned for vniust and vnequall.

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

But this is so farre from any tolerable answere vnto those ob∣iections: that it is (in trueth) nothing else, then a very vntrue and •…•…anderous imputation, that will not, nay cannot be iustified. What? Ministers depriued, yea put in danger of losse of life, or goods, without any matter proued? I cannot cōiecture what further mea∣ning

herein he may haue, otherwise then to slander: except per∣haps he thinke, the Notorious wilfull contumacie of those that re∣fused sundry times vpon their oathes to answere Articles obie∣cted on her Maiesties behalfe (for matters of their owne facts, or within their knowledges, and not touching either their liues or limmes) so farre as by Lawe they were bound; not to be a matter sufficiently appearing and proued to the Iudges: whereas such their contumacie and contempt, euidently appeared to the honourable persons, Iudges, and other sage, prudent, and learned men, not onely to be most vntolerable; but was iudged by them, to tende also vnto the vtter ouerthrow of the whole fundamentall iustice of this Realme, if it should be suffered.

I do read in deed, 1 1.4 that the Ministers of Geneua do in a letter of their owne, written to the Ministers of Berne (against one Cum∣perell a Minister also of Geneua) testifie no lesse of the Eldership there, then here is traduced. For because Cumperell 2 1.5 did not an∣swere directly (as they thought) before the Consistory or Eldership vnto their Interrogatories by them of meere Office ministred vn∣to him (whereof two concerned his thoughts, and the very cogi∣tations of his heart) so that they helde him thereupon as conui∣cted: and for that there were vehementia indicia, great presumpti∣ons, with a common fame, that he being ordeined Minister for a pa∣rish in their territorie, called Drallian, had neuerthelesse vnder hand sought to place himselfe in the territorie of Berne (for this was his heinous fault whereof they then enquired:) Therefore the Consistorie pronounced, Quòd erant iustae causae, cur Ministe∣rio abdicaretur; that they were iust causes to depose him from his Ministerie. So that albeit we haue no such Lawe or practise in England (thanks be to God, whatsoeuer the Note-gatherer saith) to condemne a man, without any matter proued: yet some other Churches (whom he & his Consorts doe more admire, then their owne) thinke they haue warrant ynough, euen vpon a fame and some tokens, to depose a minister, when they shal find that course meete to be vsed.

Another reason in that behalfe is alledged by Sir Th. More; that the Lords of the Counsel vpon secret information call men of Office, without any prosecutor, vnto examination of matters cri∣minall. To which the Notegatherer answereth thus: viz. that this

is, in matters concerning the state of the Prince and of the Realme; in matters of allegeance: and that a Iesuite or Seminarie priest may be examined by othe, quia ipso facto a traitour.

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

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

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

A writer in the Ciuil Law assigneth a speciall cause of the hate∣fulnes vnto the Cōmon people of the Spanish Inquisition for mat∣ters of heresie. 1 1.6 Inquisitors of heresie (saith he) are hatefull and su∣spected of all Lay-men, because of a long time it hath bene beleeued, that they are wont to proceede vpon most light suspicions, especially a∣gainst those that be riche. Nay in deede how can it be otherwise, seeing their dealing by that Inquisition is especially against men of greatest wealth; because vpon their condemnation their goods and lands are confiscated to the house of Inquisition: that is, to the Inquisitours themselues?

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

As for Courts of Ordinaries, I knowe some of the greatest of them in England, that haue not two matters ex Officio mero pro∣secuted in them, in three yeeres space. And for such ordinarie Courts as haue some moe causes of that nature: alas, what great fee is it, for the Iudge ecclesiasticall to haue iij. pence for a Citation, or vj. pence for examination of a witnesse, or vpon an acte of Ab∣solution, or such like; to make him desirous (in that respect) to entertaine the cause; seeing hee will hardly be excused with xx. pound charges (that euery such seuerall matter may put him vnto) if an Appellation be brought vpon any errour or mista∣king, that may happen to be found, in his proceedings of Office?

Besides that, the like fees are due to the Iudge, no lesse vpon the prosecution of a partie, then they be vpon proceeding by office: and therefore none inconuenience heereupon more in the one course (which this opinion alloweth) then there is in the other.

Yea, may some say, all prooue not offenders, that be so cal∣led, and that are thereby put vnto trouble and charges. It is true; yet meet to be called, if the law be obserued in this point, that there must be (afore) a sufficient ground of inducement thereto. Neither doe all those prooue to be offenders, that are prosecuted by a partie or by an Accuser; and thereby be put to no lesse charges and trouble, euen when (besides the malice of the preferrer) there was no colourable ground of the accusation. The like may be also truely said of many others, who be called euen before temporall Iudges and Iustices of the peace, either by warrant, writte, or otherwise. Yet is this no cause, heereupon wholly to disallow these conuentings. And there is no more reason to finde fault with the fees due vnto the Iudges ecclesia∣sticall, in regard that euery one which happeneth to be conuen∣ted, prooueth not guiltie of the matter imputed to him: then there ought to be with the fees, that are due to Iudges in tempo∣rall Courts for iudiciall or originall writtes &c. because many of such suites be commenced (as often falleth out in the end) with∣out good matter on the Plaintifs or Informers behalfe. Thus much in answere to the obiections made against the reasona∣blenesse, and conueniencie of proceeding by Office.

Notes

• 1 1.1

  In his title of Inconueniences.
• 1 1.2

  Bartol. in 1. Diuus. ff. de cu∣stod. reorum.
• * 1.3

  2. Hen. 5. ca. 3. Register. pag. 58.
• 1 1.4

  Inter epist. Caluini in folio: pag. 421. & 422.
• 2 1.5

  Two meanes to occasion En∣quirie and exa∣mination of Of∣fice, euen at Ge∣neua.
• 1 1.6

  Albericus de Rosate. in rub. C. de haeret. nu. 6.