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. XV. Enquiry and proceeding of Office, r•…•…thout an accuser, and grounded vpon some other of the meanes (afore) prooued sufficient to enter into such enquiry, is approoued by sundry examples of Scripture.

FOr proceding against crimes by enquirie, and of Office sometimes vpon the denunciation of one, sometimes vpon fame or heare-say, sometimes vpon notoriousnesse of the fact, and sometimes vpon a suspicion onely conceiued: but still without partie to accuse and prosecute; we finde diuers not obscure traces in the Scripture it selfe.

Vnder the law of nature, when 1 1.1 one tolde Iudah prince or head of his familie (and therefore a magistrate) that Thamar his daughter in law in her widowhood was begot with childe, at that mans onely relation without further accusation, and vpon the notorious euidence of the fact, of Office he gaue sentence that she should be burned.

When Ioseph 2 1.2 had caused his siluer cup to be put in Beniamins sacke, & had sent his steward to search them all, who also char∣ged them with this theft, and vpon pretended suspicion only, did enter to an enquirie, and to make further search: yet there was none of them that appealed to the law of nations, as if they were vniustly dealt with, hauing none accuser, but ioyned issue with him, and flatly denied the matter.

In the trial of 3 1.3 ielousy vpon the only suspicion of the husband, (though somthing be extraordinary therein and ceremoniall) yet by that enquiry of the Priests (to the apparant great perill of the woman if she were faultie) we may note this part of iustice in course of that iudgement: viz. that there is none accuser or par∣ty, that pretendes he can or will prooue it. For of the husband (who findes himselfe grieued, and therfore onely denounceth her to the Priest) it is said, this enquirie shall be made, because 4 1.4 the spirit of ielousie is vpon him. It is also there said to be done, when 5 1.5 the sinne is secret, and the husband knoweth it not, but only su∣specteth

it: & when there is no witnes against her, nor she taken in the maner: and therfore such, as it may not be intended the husband becomes the accuser, pretending to make proofe of the very fact: yet neuertheles it is testified there, that for bringing her to so dangerous an enquiry & trial, the 1 1.6 husband shall be free from sinne.

If a man bee entised secretly to Idolatrie, by him or her that is dearest and nearest vnto him; God commandeth thus in this case: 2 1.7 Thou shalt not consent vnto him, nor heare him, neither shall thine eye pitie him, nor shew mercy, nor keepe him secret: but thou shalt euen kill him, thine hand shall bee first vpon him to put him to death, and then the hands of all the people, and thou shalt stone him with stones that he die. In that it is here sayd, Thou shalt not keepe him secret, & that the hands of all the people must be vpon him, it ap∣peareth y^t the iudgement must be publike, & not done by priuate authoritie alone: for 3 1.8 euery one that (by vsurpatiō) taketh the sword, shall perish with the sword. Then, if this iudgement must be publike; where is there any Accuser? for he that reueileth and denounceth it, is a witnesse; in that his hand must be vpon him, according to that other part of the law, viz. The 4 1.9 hands of the witnesses shalbe first vpō him to kill him and afterwards the hands of all the people. Nay, how can such an entiser possibly be condemned, except it be vpon his owne examination; and so by course of enquirie, seeing 5 1.10 one wit∣nesse shall not testifie against a person, to cause him to die? so that here we haue in Gods owne law a iudiciall course, in a capital matter and secret, instituted vpon one priuate mans denunciation: who is so farre from being an Accuser properly taken, that he is a witnes: and the sinne to be found out by course of enquirie vpon the par∣ties owne examination; in so much as there can bee (in this case) none other way of conuiction.

Likewise in the same chapter, it is prescribed thus: that 6 1.11 if thou shalt heare say (concerning any of the cities, which the Lord thy God hath giuen thee to dwel in) wicked men are gone out from among you, and haue drawen away the inhabitants of their citie, saying, Let vs go and serue other gods, which ye haue not knowen: then thou shalt seeke and make search, and enquire diligently: and if it be true & the thing certaine, &c. thou shalt euen slay the inhabitants of that citie with the edge of the sword: destroy it vtterly and all that is therein, & the cat∣tell thereof with the edge of the sword: where we plainly find, dili∣gent

enquirie vpon heare-say and fame commanded, and prosecu∣ted of office euen vnto condemnation and execution; without a∣ny mention of Accuser or prosecuter of the cause.

In the same booke afterwards, and for the crime of idolatrie likewise, it is thus appointed: 1 1.12 If it be told vnto thee, and thou hast heard it, then thou shalt enquire diligently: and if it bee true and the thing certaine, that such abomination is wrought in Israel; then shalt thou bring foorth that man, &c. and shalt stone him with stones till hee die. So that here also we haue a fame, or perhaps but the denuncia∣tion of one man, whereupō the magistrates enquirie is grounded; and vpon the enquirie the magistrates sentence (finding the mat∣ter true and certaine) & the execution of the iudgement; all with∣out Accuser or prosecuter.

For grounding proceeding criminall without accusation, vpon the notoriousnesse of the fact; we haue a course prescribed in these 2 1.13 words: If a man be found lying with a woman maried to a mā, then both twaine shall die. And 3 1.14 againe, If a man find a maid that is not betrothed, and take her and lie with her, and they be found, then shall he giue, &c. therefore vpon taking in the maner, proceeding vnto condemnation and execution is warranted, though there bee none Accuser, but onely the witnesses, that depose it.

So the 4 1.15 Gibeonites for their apparant guilefull dealing, falling out by their owne confession vpon examination; were condem∣ned by Ioshua vnto perpetuall slauerie, without any Accusa∣tion.

When the 5 1.16 children of Israel heard say that Reuben, Gad, and the halfe tribe of Manasseh had built an altar contrarie to Gods word, as they at first conceiued it: they purposed to warre vpon them; yet thought good to delegate tenne princes vnto them first, to take their answere and excuse. So that vpon the fame brought vnto the men of Israel (without any set Accusers) they entred into further Inquisition & examination of this matter. The 6 1.17 prophet Elisha had the sinne of Gehazi his seruant diuinely reueiled vnto him; and was authorized by God to condemne him, & to punish him for it: yet sought he none other to accuse his seruant, & to obiect that crime vnto him, besides himselfe, that was to iudge him. Vpon y^e only outcry 7 1.18 of the multitude against Paul, the chiefe captain (not ignorant of the law of the Romanes)

brought him before the great Councell of the Iewes, without any particular Accuser or Prosecutour there mentioned: notwithstan∣ding that generall Outcrie be 1 1.19 termed an Accusing in that place, but not properly.

Furthermore, at the only 2 1.20 denunciation of an husband, that he found not his wife a Virgin, she is put to her clearing before the Iudges. Wherein if she cleare her selfe, then without her further mediation (the Denouncer) her husband is to be chastised by the Elders, and condemned in a fine to the father of the woman for his calumniation, and vniust bringing her name into question, and life into danger. But if she be not found a mayd, she is to be put to death: so that the one of these sentences, must needes be of the Iudges office alone. For if the husband be the Accuser of the woman, then must the condemnation of him be ex Officio; be∣cause his owne complaint reacheth no further, but to his wiues condemnation or clearing. But if the womans father be saide in this processe to hee the Accuser of the husband, then is the wiues condemnation done ex Officio. So wee finde that Da∣niel 3 1.21 proceeded without any other partie against the wicked Elders ex mero Officio. For hee was both Iudge, examiner, and Accuser.

By the 4 1.22 parable of the wastfull Stewarde we are taught, that vpon credible reports onely, we may enter into examination and enquiry of the misdemeanour of such, as be vnder our authoritie. How is it (saith the rich man there to his Stewarde) that I heare this of thee? giue an account of thy Stewardshippe. And he looked for none other to Accuse, then himselfe that was to iudge.

When by diuine reuelation the hidden and close hypocrisie of Ananias and Saphira 5 1.23 was made knowen vnto Saint Peter; and that by speciall oeconomie, he was publikely to proceede to their examination and condemnation vnto death; hee sought none other Accuser, but himselfe obiected, and by his owne Apostolicall authoritie, proceeded also to sentence against them for that sinne.

And if that be truely which is commonly said, humana iusti∣tia imitatur diuinam: why should not this course of proceeding be diuine and godly? for God doth as it were make Enquirie vp∣on a crie of sinne comming into his eares; and afterward puni∣sheth

without any accuser. The Lord 1 1.24 came downe to see the Citie and tower of Babel, which the sonnes of men builded. And 2 1.25 againe afterward touching Sodome, the Lord sayd, because the crie of So∣dome & Gomorrah is great, & because their sinne is exceeding grie∣uous, I wil go downe now & see, whether they haue done altogether ac∣cording to that cry which is come vnto me, & if not, that I may know.

S. Paul vpon the credible 3 1.26 fame and hearesay, touching the incestuous Corinthian, without any accuser or partie to sollicite him thereto, determined and adiudged hee should bee committed to Satan. For it is thus sayd in that place, it is heard certainly that there is fornication among you, &c. It is thus written in the booke of Nombers: 4 1.27 Whosoeuer killeth any person, the Iudge shall slay the murderer through witnesses. Where we see this duetie and office required at the Iudges hand (so there bee proofe made of the crime, by two witnesses at least) and that indistinctlie and sim∣plie; without any mention of Accusing or prosecuting by any third person.

Nay, to say that which the trueth is; it is so farre off, that (by Scripture) an Accuser should be required in all criminall procee∣dings: that as yet (for my part) I haue not found many places, where it is so much as mentioned to haue bene vsed, at least as Accusation is properly taken. One I read of in the lawe of God, viz. 5 1.28 Where there shalbe strife betweene men, and they shall come vn∣to iudgement, and sentence shalbe giuen vpon them, and the righteous shalbe iustified, and the wicked condemned: then if so be the wicked be woorthy to be beaten, the Iudge shall cause him to lie downe, and to bee beaten before his face, &c.

In the Acts of the Apostles, in the speach of the Recorder or town-clerke of Ephesus, the course of Accusatiō is in these words mentioned. If 6 1.29 Demetrius (saieth hee) and the crafts-men which are with him, haue a matter against any man, the law is open, & there are deputies, let them accuse one another. And it was practised af∣terwards against Paul, as appeareth by the seuerall places of the Acts, handled in the next chapter of this treatise.

But albeit Accusing and Accusers be else-where also sundrie times mentioned, yet vpon particular discussing and view of the places it will appeare; that none other Accuser be there∣by meant, but witnesses onely: who in a large signification,

sometimes are vnproperly termed Accusers, as I haue afore shewed. When the wicked high Priestes, Scribes, & other Elders of the great Council of that nation, proceeded against our Saui∣our Christ, whom they knew and perceiued (by the mouing of all Ierusalem at his triumphant receiuing thither) to be in great repu∣tation with most of the people: it is no doubte, but they kept in outward apparence a colour of a due and Iudiciall course of pro∣ceeding with him, were it but for feare onely. Let vs see then, whether they retained Accusation as the onely lawfull course.

It is true, 1 1.30 three of the Euangelists doe report, that the chiefe Priests and Elders accused him before Pilate: and 2 1.31 as one of them saith, of many things: & as 3 1.32 another of them saith, they accused him before Herod vehemently. Yet whoso will attentiuely way and consider of that historie, shal well perceiue, that our Sauiour was condemned (afore) by the Eldership, and that these imputati∣ons of crimes against him before Pilate and Herode (called there Accusing) was nothing else, but to approoue vnto them the iu∣stice of the sentence formerly giuen by the Sanedrin or great Councill vpon him: to the intent that they might obteine a de∣cree for his executing, at Pilates, or at Herodes handes. For albe∣it the Iewes (after they were conquered by Pompeius Magnus) had 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, their owne lawes, ordinances, and ceremonies left vnto them: yet had they not iu•…•… gladij, the power of life and death in them: and so they signifie vnto Pilate, when he was willing to haue shaken them off, and to haue had no dealing at all in that action. For when he saide, 4 1.33 take ye him, and iudge him after your owne lawe: then the Iewes saide vnto him, It is not lawfull for vs to put any man to death. And Pilates decree was nothing else; but that it shouldbe 5 1.34 as they required. What that was, two other Euangelistes doe expresse, viz. that he might be 6 1.35 deliuered vnto them to be crucified. Lo whereunto his decree tended, vnto Christs execution, but not to condemnation; for he had afore washed his handes, and pronounced Iesus innocent.

For proofe that he was first condemned by the Eldership, and then execution only sought for, by Pilates authoritie: it appeareth in the 26. chapter of 7 1.36 S. Matthew thus; behold, nowe ye haue heard his blasphemie: what thinke ye? they answered and said, he is worthie to die. And this Council was holden ouernight, immediatly after

his apprehension. This action Saint Marke sheweth plainely to haue bin his condemnation. They 1 1.37 all condemned him (saith he) to be worthy of death. Thus hauing condemned him, when 2 1.38 the mor∣ning was come, they helde a Councill againe, to put him to death; and thereupon ledde him bounde to Pilate the gouernour, to procure a decree for his execution. For in the next verse after, it is directly said 3 1.39 thus: then when Iudas &c. sawe that he was condemned, he repented himselfe &c. which was afore his appearance before Pi∣late, and afore he had dealt with him at all.

What then was the course whereby the great Coūcill procee∣ded with him? not by Accusation made by any other then them∣selues: but vpon witnesses (though false, & by them suborned) and vpon pretence of his owne cōfession. 4 1.40 They sought false witnesses &c. at the last came two false witnesses &c. & a litle after, what 5 1.41 haue we more neede of witnesses? behold now ye haue heard his blasphemie. And S. Luke 6 1.42 thus: then said they, what neede we any further wit∣nesses? for we haue heard it of his owne mouth. Whereby it is made manifest, that albeit the Priestes and other Elders, sought by all meanes possible (outwardly) to approue their proceeding a∣gainst Christ vnto Pilate and the people: yet did they neuer seeke or require any third person, to preferre vp Accusation a∣gainst him: and therefore a course of proceeding not of necessity to be obserued by Gods law, as they al then conceiued & vnder∣stood it. Likewise when the first martyr S. Steuen was proceeded with by the same Councill & Eldership residing at Ierusalem, none accuser, but 7 1.43 witnesses only were vsed For though the Libertines & Cyreniās (vpō spite toward Steuē) did suborne the witnesses, yet did they not appeare themselues openly in the action, as Accusers. Neuerthelesse it bare the shew at first of a 8 1.44 due and Iudicial pro∣ceeding in Councill, howsoeuer the execution of him after was done without iudgement giuen, and 9 1.45 by tumult of the people.

Nowe least any man should surmise, that this was but a cor∣rupt custome crept into those later times; we will therfore looke something higher, what was done in former ages.

In the proceeding against Naboth, though it was a most wic∣ked iudgement, grounded vpon periury and subornation, yet we may 10 1.46 see, the plot was so laid, as it might seeme to cary apre∣tēce of a due Iudiciall course; whereupon may be truely gathered

something touching the maner of proceeding then vsed. For in a solemne fast, when Naboth sate Iudicially with the rest of the Elders, and chiefe of the people; vpon the onely witnessing of two wicked men in his presence (that he blasphemed God and the king) Naboth was condemned to be stoned.

The matter for which I note it, is this: that the processe was without any Accuser or party. For there are named onely the witnesses, the elders, and gouernours, & Naboth the party condemned.

By which, (together with the historie of the adulteresse 1 1.47 men∣tioned in the Gospel, being conferred with 2 1.48 Deuteronomie) I do gather; that ostentimes, in their Iudiciall proceedings, the Iewes had none other persons that any way dealt, but witnesses, Iudges, and the party against whom they proceeded. For in the Gospel, albeit those that told Christ of the womans adultery, are 3 1.49 called Accusers in these wordes, Where be those thine accusers? yet such of 4 1.50 them as were without sinne, were willed by him, to cast the first stone at her: Alluding therein to that lawe, 5 1.51 that the hands of the witnesses, shalbe first vpon an offendour condemned, to kill him. So that there were none other Accusers, but the witnesses.

This is more plainely proued out of the same booke 6 1.52 after∣wardes. For where it is saide, that one witnesse shall not rise against a man for any trespasse, or for any sinne, or for any fault that he of∣fendeth in, but in the mouth of two or three witnesses shall the matter be established: it is foorthwith added thus: If a false witnesse rise vp against a man to accuse him of trespasse: then both the men which striue together, shall stand before the Lord, euen before the Priests and the Iudges, which shall be in those dayes, and the Iudges shall make di∣ligent inquisition: and if the witnesse be found false, and hath giuen false witnesse against his brother, then shall ye doe vnto him, as he had thought to doe vnto his brother. Whereby may appeare that he that is said to accuse, is termed a witnesse three times, and his falsehood is to be found out by the Iudges inquisition. This also appeareth more plainely by the story 7 1.53 of Susanna, where the Elders were witnesses, and there were none other Accusers.

So in the 8 1.54 condemnation of a disobedient sonne, there is none other Accuser, but the very parents that make the complaint, and beare witnesse also.

So that we finde in Scripture, proceedings of office, grounded

vpon Denunciation of one person, vpon heare-say, vpon suspi∣cion, and vpon Notorietie of the fact, aswell by Iudges Ciuill or Temporall, adiudging vnto a temporall punishment, & by Iudges being both Ciuill and Ecclesiasticall, and by ecclesiasticall alone, inflicting the like penalty: as also by ecclesiasticall Iudges, pro∣ceeding to censures ecclesiasticall, without any accusation or par∣tie to prosecute, other then the Iudges themselues. And therefore criminal proceeding of office, (& consequently without Accuser) and likewise without any solemne presentment; is by manifolde examples of Scripture, sufficiently approued for lawfull & godly.

Notes

• 1 1.1

  Gene. 38. V. 24. & 25.
• 2 1.2

  Gen. 44. V. 5, 6, 7, 8, 9, & 10.
• 3 1.3

  Num. 5. V. 12. & deinceps.
• 4 1.4

  Vers. 14.
• 5 1.5

  Vers. 13.
• 1 1.6

  Ibid. V. 31.
• 2 1.7

  Deut. 13. V. 6, 7, 8, 9, 10.
• 3 1.8

  Mat. 26. V. 52.
• 4 1.9

  Deut. 17. V. 7.
• 5 1.10

  Nomb. 35. V. 30. Deut. 17. V. 6.
• 6 1.11

  Deut. 13. V. 12 13, 14, 15.
• 1 1.12

  Deut. 17. V. 4, 5
• 2 1.13

  Deut. 22. V. 22.
• 3 1.14

  Ibid. V. 28.
• 4 1.15

  Iosu. 9. V. 22, 23.
• 5 1.16

  Iosu. 22. V. 11. &c.
• 6 1.17

  2. Reg. 5.
• 7 1.18

  Act. 22. & 23.
• 1 1.19

  Acts. 22. V. 30. & 23. V. 6.
• 2 1.20

  Deut. c. 22. V. 14. &c.
• 3 1.21

  Dan. 13. V. 51. & sic deinceps.
• 4 1.22

  Luke 16. V. 2.
• 5 1.23

  Acts. 5. V. 3. &c.
• 1 1.24

  Gen. 11. V. 5.
• 2 1.25

  Gen. 18. V. 20. & 21.
• 3 1.26

  1. Cor. cap. 5. V. 1. &c.
• 4 1.27

  Nom. 35. V. 30
• 5 1.28

  Deut. 25. V. 1, 2, 3.
• 6 1.29

  Act. 19. V. 38.
• 1 1.30

  Mat. 27. V. 12. Luke 23. V. 2.
• 2 1.31

  Mark. 15. V. 3.
• 3 1.32

  Luk. 23. V. 10.
• 4 1.33

  Ioh. 19. V. 31.
• 5 1.34

  Luk. 23. V. 24.
• 6 1.35

  Mat. 27. V. 23. Iohn 19. V. 16.
• 7 1.36

  Vers. 65. 66.
• 1 1.37

  Mar. 14. V. 64.
• 2 1.38

  Mat. 27. V. 1. 2
• 3 1.39

  Ibid. V. 3.
• 4 1.40

  Mat. 26. V. 59, 60.
• 5 1.41

  Ibid. V. 65.
• 6 1.42

  Luk. 22. V. vlt.
• 7 1.43

  Act. 6. V. 11. 13
• 8 1.44

  Ibid. V. 15.
• 9 1.45

  Act. 7. V. 57, 58, 59.
• 10 1.46

  1. Reg. cap. 21. V. 9, 10, 11, 12, 13.
• 1 1.47

  Ioh. 8. cap. 10.
• 2 1.48

  Deut. 17.
• 3 1.49

  Ioh. 8. V. 10.
• 4 1.50

  Verse 7.
• 5 1.51

  Deut. 17. V. 7.
• 6 1.52

  Deut. ca. 19. V. 15, 16, 17, 18, 19.
• 7 1.53

  Dan. 13. V. 34, 40, & 62.
• 8 1.54

  Deu. cap. 21. V. 18, 19, &c.