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. XVI. An answere to such obiections, as out of Scripture or ecclesiasticall writers, be made against criminall proceeding of Office, by the Note-gatherer and others.

AGainst this, are obiected two places out of the Actes of the Apostles. It is not the 1 1.1 manner of the Romanes, for fauour to deliuer any man to the death, before that he which is accused, haue the accusers be∣fore him, and haue place to defende himselfe, concer∣ning the crime. And the 2 1.2 other: I will heare thee when thine accu∣sers also are come. By which they would gather, that the very Heathens knew it to be contrary to equitie, to proceede against a man, otherwise then by Accusation.

But both receiue one answere. In deede the vsuall and most ordinarie way of proceeding among the Romanes in veteri Re∣publica, (before it was reduced to a Monarchie) was at the first in crimes capitall (where the people was Soueraigne Iudge) by way of Accusation, as is more largely touched afore. And (next vnto seruice in warre,) eloquently to accuse a man be∣fore the people, was the readiest steppe, that forward wittes sought 3 1.3 credite and countenance by; being an especiall meane, to beare offices of honour in that Common-wealth. Vpon which occasion, it was in great credite and vse; till through sundry calumniations (to bring men wrongfully into perill of attainder,) they were forced per S. C. Turpilianum, and o∣ther lawes, to lay most grieuous penalties and dangers both

vpon those that did not proue that which they obiected, and therefore were presumed calumniari, or who did praeuaricari, i. collude, tergiuersari, wrangle, or desist from prosecuting. So that, being so dangerous to the accusers in many respects; it became afterwards, to be lesse frequented. Yet alwayes both before and after, this they obserued: that when there was any that woulde be Accuser or partie seriously, without collusion: there the Iudge neuer enquired ex Officio: for vbi adest remedium ordinarium, ibi cessat extraordinarium, as that was holden then, sauing in cer∣taine cases afore by me touched.

But this Crime here obiected against Paul, was accounted ca∣pitall by the Iewes, and he had ynow that were his Accusers, so that there needed to be none Enquirie, ex officio mero, against him. That he had accusers who determined to prosecute him, appeareth by these places: The 1 1.4 Captaine would know the certain∣tie, wherefore he was accused of the Iewes. Againe, 2 1.5 he was accused of questions of their Lawe: and further 3 1.6 Claudius Lysias the Colo∣nell, signifieth plainely by letter to Felix the Gouernour, that he had commanded his accusers to speake (before the Gouernour,) the things, that they had against Paul. So that the Gouernour not knowing the cause, and knowing that the Accusers were com∣maunded to prosecute before him, had iust occasion to say, that he would then heare him, when his Accusers came. And in the next Chapter, Tertullus an 4 1.7 Orator did accordingly come with others of the Iewes, and accused him before Felix. Likewise when he was afterwarde conuented before Porcius Festus, (the Gouernour that succeeded next) the Iewes 5 1.8 that came thither from Ierusalem, layde many and grieuous complaints against him. And af∣ter more plainely thus: against whom when the Accusers stood vp, they brought no Crime of such things as I supposed.

But to make it plaine euen out of that place, that the Romanes besides the way of Accusation vsed also (vpon cause) to enquire of Office: Lysias the Colonell (by occasion of the crie and vprore made against Paul) did without any mans 6 1.9 instigation, (and therefore of Office) commaund that hee should be scourged and exa∣mined; that he might knowe, wherefore they cried so on him. Where (by the way) appeareth, not onely that he was then proceeded with of Office, but also it was meant that hee should be (vpon

those onely enducements) examined by torture, of matters that might be Poenall to himselfe. Neither did Paul take exception against this course as vnlawful, nor the Captaine conceiue feare, that he had done more then he could iustifie, in any other respect but this, because Paul was a Citizen of Rome. For they had a law, 1 1.10 that a Citizen might not be beaten with roddes, nor tortured any way, but by decree of the people. And yet any other of their subiects might be, and were often so vsed.

It is notorious to them that haue read any thing almost, of the state of that Common-wealth, that the Dictators (who for their halfe yeere had a Soueraigne authoritie) did enquire and pu∣nish euen capitally, ex Officio, as they in discretion thought meete.

The Censors of maners had and practised for their fiue yeeres space, the Enquirie and punishment ex Officio, of sundry misde∣meanors and dissolute courses of life; not capitally, but either by deposing men from their offices and degrees, by noting them with infamie, by corporal punishments of the lighter sort, or by fine, or by all these.

But the Note-gatherer maketh also moe quotations out of the ancient fathers; which because they mention not an othe at all, I doe therefore referre them to this place; as brought by him to prooue, that no proceeding Criminall, may be vpon the Iudges Office alone.

First, none of the places quoted out of Origen haue any resem∣blance of this matter. That which he quoteth out of S. Ambrose 2 1.11 in respect of some difficultie, doth require to be plainly opened. Syagrius bishop of Verona had called afore him one Indicia, san∣ctificata benedictione, a professed Virgin (as I take it) vpon questi∣on of her incontinencie. There was none Accuser that tooke vp∣on him to proue it; neither was any Fame risen thereof; but in∣uidia conflata ipsi, she was depraued by light persons, by hereticks, and infamous men, and that by wicked practises, through bri∣berie and intemperancie: yea by some such as had bene (afore) put out of her house, for actions farre vnseeming that, which they outwardly professed. But it was alledged in iustification of the saide Bishops proceeding with her, that a rumour had bene spread, that the saide Indicia had borne a childe, which she had made away. And that this rumour was so spread by certaine

women (though but base) that ranne vnto the Monasterie, and there first bruited it, from whence it came abroade among the people, and so to the eares of one Maximus. Howbeit, these which were said to be the first authors of that rumour, were con∣ueyed out of the way. Now Syagrius the Bishop there, hearing of such a rumour, and thereupon proceeding against the saide Indicia, did decree, that she should be inspected by Midwiues, for the clearing and proofe of her Virginitie. Which (as he al∣ledged) he did the rather; because certaine (taking scandal here∣at) did affirme; that if she should be tolerated without such in∣spection, they would not communicate any more with their Bi∣shop. But S. Ambrose there taxeth them thus: Quales illi, qui vo∣lunt praescribere Sacerdotibus, quid sequi debeamus? What kinde of persons be these, that will presume to prescribe vnto vs Bishops, what we haue to doe? And albeit the said Maximus was (in very trueth) the Relatour 1 1.12 thereof to the Bishop; yet was there none Accuser in proper termes of Lawe so to be called, nor any that did iudici∣ally denounce her thereof, Quam nullus argueret, nullus deferret.

Now because a woman of her qualitie, in so disorderly sort, vpon no better grounds of inducement, was adiudged to so vn∣comely a course of clearing her Virginitie; and of so great vn∣certaintie, besides the danger, that the Midwiues might be sub∣orned: Therefore S. Ambrose (being Archbishop of Millaine, in whose Prouince Verona stoode) did auocate this cause from the Bishop vnto his owne audience. He therefore hearing it Iudi∣cially, in the presence of his brethren and fellowe Bishops (to whom he imparted it:) besides the former defects, did finde vp∣on examining of the matter, that Renatus and Leontius two wit∣nesses produced vpon the Fame, which it was entended they had heard (though they were suborned) yet did they materially va∣rie one from the other, in the ground of the cause. It fell out likewise by proofe, that they two had sent out of the way, Mer∣curius and Lea; two other supposed witnesses, and but lewde persons. Also that another pretended witnesse, called Theudule was runne away, knowing that it would be obiected in way of exception against her; how she had lien at the saide Renatus his beds feete. Besides, another woman had also confessed, that the said Renatus did commit fornication with her.

Now because hereupon, no sinister or bad fame against Indicia was in Lawe sufficiently proued; but rather to the contrary a good fame was proued by one Paterna, and by the nurse of Indi∣cia: therefore S. Ambrose absolued and dismissed her from such inspection, restoring her to her former good name, but cōdemning Maximus, and excommunicating Renatus and Leontius for their indirect, vniust, and calumnious dealings. Yet did he not (as he saith) simply cōdemne that kinde of purgation and proofe of Vir∣ginitie, by inspection. For he saith thus: Quid ergo? Negamus in∣spiciendas virgines interim, quòd nusquam legerim? Non adstruo, nec verum arbitror.

In which Processe, many pointes may be noted, to auoche the Iurisdiction of Archbishops and Bishops, and sundrie their proceedings Ecclesiasticall at this day: but I finde no footesteps or colour of any mislike. If these wordes of his, be alledged to proue, that no Criminall Processe should be made without an Accuser properly so called: viz. It is requisite, that the witnesses be voyd of partialitie; yet so that there first appeare an Accusour; this very Epistle will shewe, that such Accusour (though then they were more vsuall) is not necessarily alwayes to be required. For he findeth fault, that she was conuented, although there would appeare, neque author criminationis, neque accusator, neque professor delationis; Maximus (in trueth) being vnder-hand both a Re∣latour, and a kinde of Prosecutour. So that (no Fame being there∣of) if any one would but haue shewed himselfe as a Relatour, or a Denounceour; it might haue sufficed, though he were not a ve∣ry Accusour, Qui delationis se nexu obligabat; as S. Ambrose there speaketh of the Inscription required (by Lawe) adpoenam Talionis, for him, which should faile in proofe. And in trueth, if Enquire of office were not lawfull, and none Accusour were to be receiued, but as Lawe and olde Canons appoint; assuredly there would be fewe or no Crimes at all in any Court euer prosecuted. So great is the trouble and danger.

Besides if the want of an Accusour, had bene sufficient to haue reuersed Syagrius his sentence, and to haue quashed the whole Processe: then what needed S. Ambrose so carefully to haue exa∣mined her Fame good or bad, by so many witnesses? But that he knew (if an euill Fame had bene proued) the Iudge might by

Lawe haue proceeded as he did, without any either Accusour or Denunceour.

So that we see, he thought it meete, and by Lawe required at his handes, for her clearing and absoluing, to make Enquirie of the Fame; albeit eche of those were wanting. And therefore he did of meere Office by way of Enquirie, proceede to the final sen∣tencing of that cause. In like sort was that his condemnation of Maximus, Renatus, and Leontius, done of his meere Office, without somuch as prosecution by any other man.

Furthermore to shewe, that hee required not of necessitie an Accusour in euery Criminall cause; he maketh there a plaine se∣uerance betweene the Ciuill Lawes (as in that behalfe they were then most practised) from the Lawes Ecclesiasticall, euen at that time. For (saith he) Si leges publicas interrogemus, accusatorem exigunt: Si Ecclesiae, duobus (in quit) aut tribus testibus stat omne verbum. Then where witnesses might bee had to prooue the matter, there was not in an Ecclesiasticall cause (no not in Saint Ambroses time) any Accusour necessarilie required, besides the Iudges Office.

In the 136. Epistle of S. Augustine by him also quoted, there is nothing sounding that way. Hee there onely sheweth, that Bonifacius a Priest, was not detected before him of any Crime, and that he had not commaunded his name to be razed out of the number of Priests.

In the next Epistle is contained, that the saide Bonifacius be∣ing of S. Augustines householde, and perceiuing the lewde in∣clination of another in that house, would neither agree vnto it, nor yet conceile it. The other being complained of by him to S. Augustine their Bishoppe, did replie; that Bonifacius, seeing hee could not (as he would) abuse his chastitie, did seeke (of spite) in that sort to touche his good name. Touching this reciprocall Crimination of one of them against the other, S. Augustine 1 1.13 saith thus: When this matter had long troubled mee (saith he) fin∣ding no meane, whereby the one of the two might be conuinced (albeit I beleeued the Priest better) I thought at first to leaue them both to God, vntill some such iust and plaine cause might appeare in th'one of them (whom in deede I greatly held suspected) whereby I might turne him out of mine house. But afterwards calling to minde, that at the

Sepulchers of some Martyrs, it pleased God sometimes to worke myra∣culously; I willed them both to goe to the place where the Martyr Foe∣lix of Nola was buried; because from thence whatsoeuer should happen from God to be reueiled vpon either of them, might most easily and faithfully be signified vnto me by writing. Can any thing hereof be gathered against Criminall Processe made of Office? Why? It mentioneth neither the one course, nor the other.

But perhaps it will be saide, that S. Augustine put neither of them to a Corporallothe. Therein he did most orderly and accor∣ding to Lawe. For no Lawe would permit it in this case, the Crime being not manifested abroade by any Fame &c. And the Criminations being mutual, eche of them being Denounced and charged by the other to be Criminous. But for treating of such othes, this is not the peculiar place.

Another of his places quoted out of S. Augustine, I cannot coniecture why hee bringeth; except hee meant to alledge it against Accusation, because speaking to a Donatist of a Dona∣tist, 1 1.14 he saith thus: Emeritum certè non decet defendere Optatum, sed fortasse nec accusare.

By the quotation out of 2 1.15 Gregorius Magnus, writing to Ma∣ximus (that had entred into the Bishopricke of Salona, and was ac∣cused of Simony) I thinke he meant these wordes, if any: Seeing (saith he) the charge of making proofes is not layde vpon thee, but vp∣on him that accuseth; see thou repaire vnto vs without delay: and then there shall either an Accuser be readie, which shall duely prooue that which is obiected touching Simoniacall heresie and other matters: or else some other wholesome & due course (as the exigence of the cause doth require) shalbe taken, &c. What? Because the Accuser must proue (where that course is pursued) doth it therefore fol∣low, that none other maner of proceeding is lawfull? Nay ra∣ther this place (though somewhat obscurely) insinuateth that though the Accuser come not at all; yet the fault shall not be wincked at, or left vndealt with. By the way, let me note vnto you out of this place; that Gregorie did in the meane time su∣spend the said Bishop from celebration of the Sacrament; till triall of his matter might be had.

In the place which he quoteth out of Theodoret, concerning proceeding of Bishops, no matter sounding any thing that way,

can I finde. S. Basil in the place 1 1.16 by him quoted, complayning of the iniurious persecutions then vsed against Christian Bishops, saith thus: Whereas no wicked man is cōdemned sine certis indicijs, without certaine Euidence: yet Bishops are condemned by meere ca∣lumnies. And a litle after he saith thus: Some know not their Ac∣cusers, nor haue at any time appeared in the Iudiciall place, nor haue bene complained of at all: and yet being taken away at midnight, haue bene straight-way driuen into banishment. Who denieth, when the proceeding is by Accusation, but that the defendant should know his Accuser, that hee may be allowed his iust exceptions? But what is this to proue, that no course is lawfull, besides Accu∣sation? And the fault is not alone assigned hereupon; but also be∣cause they were banished, before euer they were either complained of, or were brought vnto any Iudiciall place.

In Concilio Triburiensi by him quoted, and likewise in the ninth Canon of any of the seuen Councils holden at Carthage, there is nothing (lesse or more) touching either Accusation, Othe, or proceeding of Office, to be found. And that which is in Balsa∣mon in the ninth Canon of the Carthaginian Councill holden sub Honorio & Theodosio Paruo; is nothing but a Decree, that an ex∣communicate person shall not bee receiued to the Communion, by any other Bishoppe or Priest, vpon paine of the like Excommunication to him that receiueth him. And the Tripartite historie in the tenth booke and foureteenth chapter, hath no more, then the said for∣mer places haue, that way. In the seuenth Chapter of the same booke quoted also by him, it is said, that the old Accusers of Iohn Chrysostome were againe excited against him.

That which he pointeth at by his quotation of Marcellus Ei∣shop of Rome (as I coniecture) is conteined in these wordes. Hee dehorteth Maxentius from persecuting Christian Bishops, and wisheth that they be not called in question, till that which hath bene wrongfully taken away, be restored vnto them. 2 1.17 And then (saith he) let him answere his Accusers; and if it bee needefull, let him haue a competent time of deliberation, to wey those things that bee obiected against him; lest being innocent, hee be ouer-throwen by any fraude or deceite. Because it is not lawfull to iudge or condemne any man, before hee haue lawfull Accusers present, and haue libertie for his defence to auoyde the Crimes imputed to him.

Another B. of Romes authoritie he also voucheth to the same effect. The wordes he meaneth (I take it) are these: 1 1.18 Let not the same men be Accusers & Iudges; but Accusers by themselues, Iudges by themselues, witnesses by themselues, and the accused by themselues, euery one in his due order. For first of all Inscription must alwayes be made, to the ende that he which accuseth (if he doe calumniate) may himselfe receiue the punishment appointed for that Crime. For before this Inscription, no man may be iudged or condemned; seeing euen the 2 1.19 temporall Lawes doe retaine the same course.

Both which places doe shew, what things are required, when the proceeding is by Accusation; but speake nothing to the con∣demnation of any other course. But would they, who (to abolish all proceeding of Office) do bring these places; yea, or would any other in these dayes (thinke you) for conscience sake and onely to see reformation, aduenture this Inscription ad poenam talionis, in case the defendant shalbe acquited, & custodiae similitudinem, which these places, and the Lawes doe require: and also endure excōmunication, which the Canons do (in that case) establish to be inflicted? For they may not with reason thinke it ouer hard to be bound by those Lawes and Canons, wherewith they hoped they could haue bound others. Quod quis{que} iuris in alium statuit, eodem ipse vtatur. Hitherto in answere of their obiections pre∣tended to be taken from the Scriptures and ancient Fathers.

Now for closing vp of this second part, and for proofe (which with this kinde of men, I trust wilbe impregnable) that an Accu∣sation is not of necessity required in proceeding Ecclesiastical cri∣minallie; let them heare what is established by the Discipline 3 1.20 of the French Churches, compiled together, when Beza was presi∣dent of their Synode. For in this behalfe they determined, no more to be required, for calling a man before the Consistory, but that it be not done without cause, & sufficient reason. Where you see, no men∣tion of Accusation to be made, either for the first preferring vp, or for further prosecution of the cause: And therefore their mea∣ning was (as the ordinarie practise of all their Presbyterial Elder∣ships is) to proceed Criminally against any Denounced vnto them, though it be but by one Elder in his Ward; or by any other per∣son (vnto whom they giue credite, neuer knowen vnto the partie conuented) without other Presentment or Prosecution of Accuser

or partie: and therefore of their owne meere Office.

That this interpretation is not forced, and that the practice of their Consistorial Elderships is according thereunto; may be made manifest by one 1 1.21 of Caluins Epistles vnto Farellus. But you are first to vnderstand, that by their discipline, all dauncing is simply and absolutely forbidden, as a grieuous sinne, matched with whoredome; and is such, as for which a minister must be depo∣sed from his function, no lesse for the one, then for the other. Nowe it happened, that sundry in Geneua had daunced toge∣ther in the house of one Balthasars widowe, amongst whom one was a Syndicke (which is one of the foure chiefe magistrates ofthat Towne) and another of them was an Elder of the Church, for that yeere. This matter comming (I knowe not howe) vn∣to Caluins eare, they were called to the Consistorie, and charged with that offence, without any Accuser or partie (and therefore of meere office) vpon none other ground, but because, Resmihi comperta fuit: saith Caluin, I knewe the matter well ynough. Neuerthelesse, all (almost) that were conuented, denied it at first very constantly. At length Caluin iudged, that they should be driuen to confesse the trueth, vpō their corporal othes. This was done accordingly, & the matter was thereupon confessed: the ra∣ther, bcause Corneus (one of the same companie) gaue them war∣ning, that he would not suffer any of them to be forsworne. Yet for all this, one Elder Henrich, seeing he was to be deposed from his Eldership for it, he would not so easely giue ouer his hold; but alledged against their course of proceeding with him (as in the very like case Tho. Cartwright did not long since in the Consisto∣rie at Paules, before sundry honorable persons in Commission, and * 1.22 others) that place of Saint Paul: viz. Receiue not an Accusation against an Elder, vnder two or three witnesses. But both did it with the like successe. For Caluin put him off (he saith) with a Di∣lemma, & made litle lesse then a ieast, at his so impertinent an al∣legation. For he saith, it was altercatio non illepida, a pleasant kinde of controuersie. Well, notwithstanding this poore de∣fence, Henrich the Elder, being first reviled and rated of all; was deposed from his Eldership, and also shut vp in prison; where he did exasperate against Caluin (the chiefe cause thereof) the ha∣tred of so many, as did beare vnto him but sclender good will

afore. The Syndick also, was for the same offence put out of his * 1.23 Magistracie; vntill he should shewe foorth some publike testi∣monie of his penitencie.

Diuers others of that merie companie, were likewise for the same crime imprisoned. And Perinus, though for a time he were stept out of the way as farre as to Lions; yet doe what he coulde, Caluin there protesteth, that he should not scape vnpunished. So that we see, it was made no Peccadillo, or trifling sinne, but an heinous criminall matter (worthie of degradation, of publike penance, and also of imprisonment) against which that Consistorie so proceeded without Accusation or Presentment, and of meere of∣fice, euen against one of the Elders of their Church, and also a∣gainst a principall Magistrate of their Citie; and for which, all that denied it, were compelled to make answere vpon their cor∣porall oathes first taken; to answere the whole trueth, which in that behalfe they should be asked, by those of the Consistorie. Which not onely touched euery mans owne acte, but (no doubt) reached vnto all their Complices also, which had troden the same dismall daunce together with them.

Thus much of this second part touching the two sortes of proceeding criminall; viz. by Accusation, and vpon the Iudges Office by way of enquirie; and for the iustification of the latter of them, by reason, by lawes temporall of this Realme, by lawes Ciuill of the Romanes, by Canons, by examples and proofes out of Gods worde, by auncient Fathers and Councils, and by practice of such moderne Churches, as the greatest oppugners of this course doe ac∣count to be best reformed: And there∣fore is manifoldly warranted, both by humane and diuine approbation.

Notes

• 1 1.1

  Act. 25. V. 16.
• 2 1.2

  Act. 23. V. vlt.
• 3 1.3

  Cicero 2. offic. Plutar. in Lucul.
• 1 1.4

  Acts. 22. V. vlt.
• 2 1.5

  Acts. 33. V. 29.
• 3 1.6

  Acts. 23. V. 30.
• 4 1.7

  Acts. 24. V. 2.
• 5 1.8

  Acts. 25. V. 7. & 18.
• 6 1.9

  Acts. 22. V. 24.
• 1 1.10

  Duodecim Tab.
• 2 1.11

  Ambr. li. 8. •…•…pist. 64.
• 1 1.12

  Sermone suo accusationem de∣tulit: aures tuas impleuit clamo∣re: testes audi∣tionis deduxit: cognitionem po∣poscit.
• 1 1.13

  August. Epist. 137.
• 1 1.14

  August. Ep. 164.
• 2 1.15

  Greg. Ep. ex Regist. li. 5. ca. 125.
• 1 1.16

  Basil. Ep. 70.
• 2 1.17

  Marcel. ad Maxentium, inter opera Clementis,
• 1 1.18

  Damasus Pa∣pa Ep. 3. ad Steph. & Concil. Afric. in 1. vol. Concil.
• 2 1.19

  Leges seculi.
• 3 1.20

  Discipl. of France. tit. Eccles. Senate or Con∣sistorie. Art. 11. being the 6. Ar∣ticle in the Sy∣node at Lions.
• 1 1.21

  Calu. Farello. pa 64. Epistola∣rum in folio.
• * 1.22

  Cartwrightes al∣legation against the othe ex officia in a criminall cause, by Caluin answered long agoe.
• * 1.23

  A chiefe Ciuill magistrate, depo∣sed by the Elder∣ship of Geneua, for dauncing.