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. II. There in is shewed how there are two sortes of prosecution of Crimes and Offences; viz. by a Partie and of Office; and the practise of them in Scripture, and in the seuerall Courtes of this Realme declared.

NOw, the meanes to bring any Crime and Of∣fence into question before Iudges and Superi∣ours in authoritie, must needs be, and so by all lawes, and in all common weales generallie (that I haue read of) are either by prosecution of some partie, or else vpon the Office of the Iudge: the 5 1.1 Office of the Iudge is occasioned, and as it were set on worke, either vpon relation made vnto him by some other, or vpon his owne meere motion, without any relation from o∣thers, which may happen, as when an outrage or misdemeanor is committed in his sight, or in some publike presence, where he then happeneth to be.

In the law of God and examples of holy Scripture, I do not call to my slender remembrance where any criminall matters be appointed & commanded to be prosecuted by a Partie: & but in very few places, where any haue bene vsed, who might proper∣ly be termed an Accuser, or a Partie. For albeit in sundry places of Scripture we finde Accusers mentioned; yet in many of them,

such cannot be accusors or parties (properly and strictly so ter∣med) but onely in a very large signification. because their testi∣monies were receiued against those, whom they denounced of crimes. For where a man is partie himselfe, making it as it were his owne cause, and not the Iudges office; there it is no reason, that his owne testimony should be admitted. 1 1.2 Quia testimoni∣um in propria causa vel quasi propria, non valet. And it may then be said to be a mans owne cause; whereof he may reape benefit or dammage. But more (God willing) shalbe spoken hereof, in his proper place.

Touching bringing crimes into question in Temporal Courts of this Realme, (that deale in matters ciuill or criminall) it is to be first remembred, that these Courts be of two sorts: some vsing the Queenes immediate auctoritie, yet the same still actually be∣ing in her Highnes &c; as all the Courts at Westminster: Others vsing but a kinde of mediate auctoritie, deriued from the Crowne; yet by her Graunt made (in some sort) their owne, as deriued downe thereby vnto them. For sundry subiects, albeit they haue but a deriued power from the Queene (as from whome through the dominions of this Crowne, all iustice, and iurisdiction to ad∣minister it, whether Temporall, or Ecclesiasticall, doth originally flowe:) yet do not their Processes runne in the Queenes name, nor her seale is vsed to them.

Of such Temporall Courts as sit but by such a mediate and de∣riued auctoritie from the Queene vnto them, and therefore vse not her Seale or name; some were in times past established for causes Martiall, as the 2 1.3 Constables of England, and the Earle Marshall his Courts (whereof I haue very small experience:) and some for matters perteyning to the Peace. And of these last, some be for causes growing within the land, as Courts of Coun∣ties Palantine, of cities and townes corporate, Sherifs turnes, and Court-Leets, or views of Francke-pledge: and others be for causes Marine, as all the Courts of the Admiraltie.

In temporal courts of counties Palantine, in courts of townes and cities corporate, fauing where some speciall custome preuai∣leth (as in London many) in Sherifs turnes and in Leetes, the course of the common Lawe is (for the most part) obserued. In Admiral courts, the order of the Ciuill lawe of the Romanes (be∣cause

it is the written Common law of most nations not barba∣rous, with whom wee haue to deale) is especially vsed; sauing where by Statute or Custome, it is otherwise directed.

Of such courts as exercise the Queenes immediate autoritie, some haue no letters Patents of Commission to direct them; as the Parlement, which is called, and sitteth by the Queenes onely writ: the Chauncerie, from whence all originall writs do come; and yet the L. Chauncellour or L. Keeper haue no Commission by letters Patents, but receiue their authority by deliuery vnto them of the great Seale, as I am infourmed: the Starre-Chamber (esta∣blished of the Queenes priuie Counsell, and some others to be called) partly by praescription, and partly by Statute: the court of Requests by custome and praescription: And the Counsaile in the Principalitie and Marches of Wales, auctorised by Act of Parlia∣ment vnto such, and in such maner, as her Maiestie (by instructi∣ons vnder her Roial hand-writing) shal from time to time direct.

But those Courtes Temporall, which sit by Commission and letters Patents for exercising (in stead of her Highnesse) the Queenes owne and immediate autoritie, are either such, as be vsually now holden at Westminster, as the Courts of the Queens Bench, the common Pleas, the Exchequer, and the Court of Wards and Liueries: or in other places of the Realme abroad, as Courts of Generall Assises, Nisipriùs, Gaole deliuerie, Sessions of the Peace, the Counsell established in the North parts, the Court of Stan∣nery in Deuonshire and Cornewall, and (as I haue bene infourmed) the Court for triall of life and death at Halisax, and such like.

I know, that by speach, and by vse also (in sundry mens wri∣tings) touching the aforenamed Courts; such only (as it were by a kinde of appropriation) be most vsually called Courts of the Common lawe, wherein matters of fact, touching hereditaments, contracts, or misdemeanours be tried by a Iurie of twelue men, be∣cause this triall is more frequent then any other. But yet we are not to thinke, that none but these may truely so be named, as though the other were contrary to the Lawe Common; seeing they be also allowed by the Lawes, Statutes, or Customes of this Realme, aswell as those which proceede to triall by Iuries.

In the Courts afore specified that proceede to the triall of crimes, by Iuries of twelue; if there be any Appellour, as of mur∣der,

robberie, or such like; then may the prosecution most properly and truely be said to be done by an Accuser, and at the prosecu∣tion of a partie. If it be for the Queene, whether it be by way of enditemen•…•… and be preferred by the Iudges themselues, or by the Queenes Atturney generall, or by some priuate person; o•…•… be by way of Information put vp against some offence made poenall, and not capitall, (and this either by the Atturney generall, or by some other person) then all such proceedings, are in trueth done ex of∣ficio Iud•…•…: And this, either of meere and entire office, as when the Iudge himselfe preferreth it; or ex officio promoto, as when it is first related and preferred vp vnto him, and prosecuted by any other. But in this last case, there is a kinde of mixt proceeding betwixt both. And albeit the Informer do prosecute partly for himselfe; yet is it for the Queene also whose the Court is, and so may be truly said to be of office.

This appeareth plainely, in that the Appeller (because he Is a meere partie) is not so fauoured, assisted, and p•…•…iuileged in many respects; as when the prosecution is instituted of Office for the Queene. For the Appellee may put it to triall of battell with the Appellour, which he cannot doe vpon enditement; at the suite of the Queene. Like wise, whosoeuer doth preferre the endi•…•…ement; or information, though the defendant happen to be acquited: yet the preferrer payeth neither costs, nor dammages, nor is sub∣iect to any action in that behalfe, as an Accuser and partie both is, and ought to be. But if the defendant be conuicted (so the crime be not capitall, but fineable:) then is the fine, if it be impo∣sed by the Court, to come wholly to the Queene: If by poen•…•…ll statute; then (most commonly) it accrueth (by disposition there∣of) partly to her Highnesse, and partly to such priuate person as informeth. And the enditements be termed vpon their begin∣ning, Enquiries or Inquisitions, which are alwayes ex officio.

Now these and such like; be notes and markes; whereby you may discerne proceedings of these Courtes in criminall causes prosecuted by an Accusour or partie, from that which is done vpon the office of the Court: for these two prosecutions doe dif∣fer in the end; and they differ also in certeine priuileged points, which that of Office hath, aboue that which is by a partie. In the end, thus they differ; because prosecution of Office aimeth at

publicam vindictam, a publique punishment, whether pecunia∣rie, to acerue to the Queene, or corporall. In deed, in all capitall causes, vindicta is (in truth) publique, and exemplarie, albeit both the Appellour, onely doe prosecute (perhaps after the Queene haue pardoned it) and that he also seeke nothing els, but priuate reuenge for his owne iniurie receiued rather then for an exam∣ple to be made of the offender, or for the Common weales satis∣faction, and contentment. Of the contrary side, prosecution in these Courtes of an offence criminall (being not capitall) by an Accuser or partie, propoundeth (for the most part) but a Ciuill end, that is, some satisfaction and amends to be made vnto the complainant damaged: as in actions of sundry trespasses, in a∣ctions of the case &c. And then doe the Ciuilians terme this Causa criminalis ciuiliter; and the former, Causa criminalis cri∣minaliter mota.

Besides such difference in the end, there be also some priuile∣ges that are granted to the one course of proceeding, which are denied to the other; whereby those two kindes of prosecution doe differ. As that in proceeding of Office for the Queene (as was touched afore) the defendant may not gage battell against the preferrer, as he may doe against the Appellour: neither hath any defendant in an enditement or information (though he be ac∣quited) any costs allowed, when the suite is for the Queene, as he both hath and ought (in iustice) to haue, when the suite a∣gainst him, is onely prosecuted by a priuate and wrongfull Ac∣cuser; that was not able to iustifie his declaration (as wee may terme it) accusatorie, of such priuate offence or misdemeanour, whereupon he sued him.

Now let vs consider also how those Courtes which haue none vsuall triall by Iuries, doe proceed against offences. First the high Court of Parliament hath no great vse (that I know) of dealing against Offences: but such as happen to be committed either by some member of the house, during the time of Parlia∣ment; or against the liberties and orders of that Court. In both which cases they proceed to examination of them, either vpon the Notoriety of the fact happening among them, or vpon cre∣dible relation of some; but wholly without any Accuser or par∣tie taking vpon him the proofe thereof, with any hazzard, of

so much as Charges for wrongfull vexation; if it should so fall out to be accounted. And therefore such proceeding, is also of meere Office.

In the Starre Chamber, onely crimes and misdemeanours bee inquired of; but especially those, which I called afore Extraordi∣naria Crimina: viz. such as haue either no certaine name, or at least no set and determinate punishment, by Lawe appointed; and may not be punished there, by losse of life or of limme; but either by Fine, by open shame and infamie, by imprisonment, by nayling or cutting of eares, or deforming the face, by banishing from some certaine place of the Realme, or foorth of all the Queenes dominions, or vnto a certaine place abroad; or by condemnation vnto the Galleis perpetually, or for a time, &c.

The misdemeanours punishable in the Starre Chamber, bee brought thither into question for the Queene onely, either by her Maiesties Atturney generall (and that is by bill of informati∣on, or Ore tenus) or els be brought vpon bill preferred by some priuate person, that is grieued. In all which Cases, albeit there be found one which doth prosecute: yet can he not truely be called an Accusour, or a partie; for the reasons before alleaged, viz. of the end propounded, which is publica vindicta; and for other great assistance and priuiledge, which that Court giueth to the prosecutor against the def. in respect that it is for the Queene.

And namelie that he is to answere not onely to the Bill vpon his oath, but also to Interrogatories more particularly criminall then the Bill, and the Interrogatories without counsell: which (in trueth) therefore needeth not, because they are brieflie drawen article-wise, and concerne but matters of fact, within his owne knowledge as is entended. Vpon all which matter it followeth, that the prosecutour there is but as a relatour, partly to stirre vp, and partly to ease the office of that Court, by furnishing it with proofes.

Neuerthelesse I am not ignorant, that sometimes, when it ap∣peareth manifestlie to their Lordships: that the plaintife (being some priuate person) hath calumniously, and of malice onely, vexed the def. then such plaintife there, is (and iustly also may be) condemned in costes and damages, for his apparant calumnia∣tion and wrongfull molestation of the def. Vnto which courses

of the Starre Chamber, I take the Courts of the Queenes Coun∣sell established in the Marches of Wales, and in the North partes, to bee also agreeable in their inquiries and examinations of crimes and misdemeanors.

In the Chancerie and Court of Requests, (being both Courtes of equitie) if any misdemeanours or crimes be diduced and laied downe in the Bils (which happeneth very often:) yet are they not Criminallie laid, to haue the def. punished for them: but one∣ly Ciuilly, to the intent, that the plaintife may haue an amends and priuate satisfaction, as shall be deemed to bee equitie. And therefore such prosecution, is not by Office of the Court; but one∣ly at the parties suite: albeit the Office in the Chancerie doe thus farre assist the plaintife, for sifting out of a trueth; that the def. must answere, euen to the Criminall points of the Bill, vpon his corporall oath: But he may not (in those two Courts) be put to answere the plaintifes interrogatories vpon his oath; except the plaintife will be concluded by the def. answere vnto them, and seeke to make no further proofes.

But of all the Courts temporall aforesaid, aswell those which proceed to the triall of misdemeanours by Iurie, as of others; I thinke this may bee generally affirmed; That when any lewde practice, abuse, or contempt (not capitall, not tending to muti∣lation) is supposed to be done against the Court; there (euen of meere Office without any Accusation or prosecution of any par∣tie by Bill) the Iudges of such Courts, doe Enquire thereof, by examining and by interrogating euery one that is holden suspe∣cted thereof, or to be priuie thereto, vpon their corporall oathes first taken. Let thus much then suffice for the two sortes of prosecution, and bringing Crimes into question, by the course mentioned in Scripture; and by vse and practice in Temporall courts of this Realme.

Notes

• 5 1.1

  Iul. Cla. lib. 5. § fin. q. 3.
• 1 1.2

  L. 1. §. in pro∣pria. ff. Quando appell.
• 2 1.3

  Ric. 2. cap.