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

SIr Thomas More in his aforesayd Treatises (to shew that it is not simply vniust, vpon some oc∣casion to conceale the names of those that gaue the information) alleageth, that in like sort at the Common law a man may be endited, & none e∣uidence openly giuen at the barre: and that the en∣diters be bound to keepe the kings counsaile close. To this the Note∣gatherer answereth; first that before the partie answere, or bee ar∣raigned, he knoweth the matter wherewith he is charged. So doeth he also in ecclesiasticall courtes, so soone as the matter is obiected vnto him. Secondly, that the inditement goeth to particular matter, & it must be certaine. And so do articles also in a court ecclesiasti∣call. Thirdly, that they which indite him, shall not be Iudges of him nor arraigne him. No more shall they who present or denounce a man to an ecclesiasticall Iudge, be Iudges of him: and therefore (whatsoe∣uer the Note-gatherer say to the contrarie) it is not aliter ex officio. Fourthly, that Iudges in such a case are to proceed circumspectlie. And so must they doe in other cases as well as this: and so must ecclesiasticall Iudges also. Fiftlie, that two witnesses must be at the arraignment, vnlesse the partie willingly confesse the same. And so it is in courts ecclesiastical. For without the parties confession, or two witnesses; none may be absolutely conuicted. And yet this which he here saieth, is not generall in all arraignments. For the statute 1 1.1 made the 1. yeere of K. Edward the 6. (which hereunto he vou∣cheth) mentioneth to this purpose onely treason and misprision thereof. The said statute is also repealed since by Q. Mary. The other statute 2 1.2 1 & 2. of Philip & Mary, that he alleageth, is onely for such triall 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 Commō lawes. But though it were so, that at all trials two witnesses should of necessitie be present: & though it were admitted, that his other foure answers were true in fact, & that the courses of proceedings ecclesiastical were to the contrary: yet these do not any way impugne or ouer∣throw sir Th. Mores reason, viz. that mē may be endited, & not know who gaue the euidence or preferred it; in like sort as some know not who preferred vp matter of crime against them into courts ecclesiasticall, and therefore this must needs be wholy impertinent, and besides the purpose.

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

The Note-gatherers later answere vnto that reason of Mores

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

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

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

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

He further allegeth in three places (as if it were a matter very considerable) out of Hall, and the Actes and Monuments of the Church, that by the statute of 25. H. 8. cap. 14. all proceeding of Office is repealed; and calleth the statute against Heresie, 1. H. 4. the statute ex officio, as if it had bene vnknowen before. First, that very statute 1 1.3 it selfe of H. 8. standeth repealed. Secondly, it is very vntrue, that it did at any time repeale proceeding of Office. For it doth not so much, as once mention it. And there∣fore what any writers do name the sayd statute of H. 4. thereby repealed, as I haue not sought, so is it not materiall; seeing they misunderstand it, if they so write. Yea, the Notegatherer himselfe yeeldeth, that the sayd statute of K. H. 8. doth establish procee∣ding of Office, if he vnderstand what himselfe writeth. For it doth appoint (and so he allegeth it) that from thenceforth pro∣ceedings against Heretikes should be vpon accusation or present∣ment. If vpon Presentment, then of consequence by the Iudges Office. For so all lawes testifie; and Presenters be not Accusers or parties. For they are seuered & counter-diuided euen in that very place, one against the other.

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

The next statute, which to the same purpose he quoteth, 2 1.4 is so farre from impugning proceeding of Office; that for grounding proceeding ecclesiasticall euen in the crime of heresie, it proui∣deth besides Accusation and Presentment, not onely information by two witnesses; but also enquirie, and that is alwayes of Office. But do not these men draw neere the lees, when they are driuen thus to allege the statute of Sixe Articles (being also repea∣led) against proceeding of Office? I had thought their courage in the pretended cause of sinceritie, had bene so great; that they would rather haue quit the place, with losse of their cause, then once to haue borrowed so much as the shadow of a wea∣pon, out of that store house.

Against this course the Note-gatherer also allegeth certeine bookes printed in king Henrie the eights dayes Cum priuilegio.

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

And all that is sayd in that one booke 1 1.5 and one onely place thereof, is no more but thus, worde by worde; viz. Ano∣ther cause of diuision, for that diuers suites haue bene taken ex offi∣cio; so that the parties haue not knowen, who haue accused them: and thereupon they haue bene caused to abiure in cause of heresie, sometime to doe penance, and to pay great summes of money for re∣deeming. Which vexation they thought came by the Iudges and the Officers. Therefore the fault that hee then found, was not the very proceeding of Office; but for that it was handled in such sort, that the partie knew not who gaue the information, which he calleth Accusing; and for that it was in cause of heresie: be∣ing a crime of farre more important danger to the partie, then any other offence Ecclesiasticall: yet not challenging the very proceeding thereby for vnlawfull, but as being (with such cir∣cumstances) some cause of diuision betweene the two states, as he surmised. The soundnesse of which iudgement I minde not here to examine.

The Note-gatherer vrgeth further, that the Popish bishops were depriued in king Edward the sixt his time, by Accusation or Presentment; though (as it seemeth) hee knoweth not by

whether of them. But what if they at that time had bene pro∣ceeded with otherwise then of Office? Woulde this prooue all proceeding of Office to be contrarie to the lawes of England; which is his drift and purpose? Yet I haue often shewed afore, that Presentment is a preparatorie course peculiar onely to pro∣ceeding by speciall enquirie of office. But for plaine proofe in fact, that they were in deed proceeded with ex officio Iudicum; I re∣ferre me to the actes iudiciall of their depriuation yet remaning, and to that also which I haue written in a certeine chapter of the third part of this booke.

Heere it will not be vnseasonable to admonish the Reader once for all of a palpable 1 1.6 mistaking both of the Note-gatherer and Treatisour in a materiall point; who by the whole course of their writings and titles of their bookes, seeme to imagine, proceeding ex Officio to signifie nothing els, then ministring of an oath to the suspected partie in a cause criminall: Whereas (in verie trueth) there may be some proceeding of Office, though that oath be not at all vrged or vsed; yea and where it ought not to be imposed, though it were vrged. Like as on the con∣trarie side, there may be proceeding euen by way of Accusa∣tion, where the oath may and ought to be exacted for the par∣ties purgation: perhappes burthened by great probabilities, yet not being so pregnant, as to conuict him. And therefore with∣out all colour of reason, and ignorantlie doe they and some o∣thers (as the late Petitioner to her Maiestie) confound pro∣ceeding of Office, with ministring of an oath, being but one Act thereof: which is in deed sometimes, but not alwayes, no; nor yet alonely vsed in that course of proceeding. Neuerthelesse, taking it whether way they lust, the sayd Popish bishops were in trueth proceeded with of Office, though denounced by certeine, and (as is expreslie set downe of some of them) were vrged, and did answere the Articles obiected vpon their corporall oathes; which (by lawe) they needed not, and therefore (as it is likely) would not haue done, if the Denunciatours had beene parties.

To prooue this course to be against law, he allegeth also out of a booke made 2 1.7 by D. Parker sometime Archbishop of Canter∣bury these words: viz. The very front of her Graces articles (mea∣ning

Queene Marie) chargeth the ecclesiasticall Ordinaries to put in execution the Canons and Ecclesiasticall lawes, none other but such, as were vsed in the time of king Henrie the eight. And com∣mandeth also moreouer, that those should no further be put in exe∣cution, but as they may stand with the lawes and statutes of the land. What then? Ergo, all proceeding of Office (though continu∣allie practiced in sundrie matters in both their reignes, with∣out contradiction) is contrarie to the Lawes of the Realme? Truely, if there be one methode of sound reasoning (as Ramus holdeth concerning teaching of Artes) I would be sorie this kinde of disputing should be it. For I haue not bene taught, nor shall euer learne (I thinke) either to reason thus, or to put such Enthymemata into true Syllogismes; viz. Such Canons onely were then to be put in execution, as might stand with the lawes of the Realme. Ergo, proceeding of Office is contrarie to the lawes of the Realme.

His last allegation (falling into this place to be discussed) that he bringeth in maymed also, to prooue this proceeding to be against the lawes of England, is out of one of her Maiesties Iniunctions, 1 1.8 Against slanderous and infamous wordes, which is thus verbatim: viz. Her Maiestie straitly commandeth all ma∣ner her subiects, to forbeare all vaine and contentious disputations in matters of religion: and not to vse in despight or rebuke of any person, these conuicious wordes, Papist or Papisticall heretike, Schismatike, or Sacramentarie; or any such like wordes of reproch: But if any maner of person shall deserue the accusation of any such; that first he be charitablie admonished thereof: and if that shall not amend him, then to denounce the offender to the Ordinarie, or to some higher power, hauing authoritie to correct the same. But what (I pray) can be gathered hereof, more then a care to reteine priuate persons in a charitable course, one towardes another, without reprochfull wordes, vpon any differences of opinions? Or doth this reach to the abrogating of any course of proceeding? Nay, rather it doeth establish it, seeing vpon Denunciation (which is heere mentioned) proceeding of Office may be grounded, but not Accusation.

But the Treatiser saith that heereby the same man is Iudge and Accuser: which is contrary to the policy of this Realme, that suffereth

not an Accusor to be a witnesse, nor an Enditour to be a Iuror for triall of the fact. I answer, that the first is vntrue. For that which ope∣neth way to the Iudges Enquirie is holden (by Lawe) as the Ac∣cusour, and not the Iudge. Touching the second, I haue shewed out of statutes, that witnesses be called Accusors: therefore that is not contrary to the policie of the Realme: and yet is it contrary to Ciuill and Canon Lawes. For the thirde; if his reason a simili be good, then is the Iuror as a Iudge, and the Enditour as an Ac∣cusour. And in deede what doe their affections differ? and yet what more frequent then for an Enditour to giue in euidence vp∣on his othe; or for one Iurour vpon his owne knowledge, to get an Enditement found? Therefore for a witnesse, to be a kinde of Accusour; and an Accusour to be a kinde of Iudge, is not contra∣ry to the policie of this Realme.

Hitherto in answere of allegations, and obiections made a∣gainst proceeding of Office, and brought for proofe of some con∣trarietie, vnto the Lawes of the Realme.

Notes

• 1 1.1

  1. Edw. 6. c. 12.
• 2 1.2

  1 & 2. Ph. & Mar. cap. 10.
• 1 1.3

  1. Eliz. cap. 1.
• 2 1.4

  31. H. 8. ca. 14.
• 1 1.5

  Of diuision be∣twixt the tempo∣raltie and spiritu∣altie. cap. 7.
• 1 1.6

  Aduertisement of an errour.
• 2 1.7

  Defence of Priests marria∣ges. pag. 175.
• 1 1.8

  Iniunction. 50.