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. IIII. That the prosecution of crimes by way of Accusation is in most places forbidden or growne into disvse: the reasons hereof be partly the dangers to the Accusers, and partly the Hatefulnesse of that course. Therein is also declared whether all Accusation be vn∣lawfull; and certaine points deliuered to be obserued by all them, that will accuse others.

IT is very assured, that how vsual soeuer it was in those populare Common weales; yet of very long time it hath not, nor is now practised in most ciuil Common weales or kingdomes, that I haue read of. But in place thereof, is come either proceeding of meere Office, or

els some way mixt, partly of that proceeding, and partly of prosecutiō by a Partie, who is not properly to be termed an Ac∣cuser.

First in this kingdom how rarely Appeales be brought and prosecuted against any supposed offenders, sauing murderers, & those scarse two in an age, euery one but of meane experience knoweth. I doe call to mind one Appeale of robberie brought by Benet Smith against Giles Rufford in the beginning of Queene Maries raigne; as appeareth by the preamble of a Statute, 2 & 3. Phil. & Mariae, c. 17. And this kind of prosecution of Crimes, though of all those which we haue, it resemble neerest the Ac∣cusation practised amongst the olde Romanes and others: yet in some points it doeth also somewhat differ from it.

In Flanders all Accusation is altogether inhibited. In the king∣dome of Naples it is onely permitted 1 1.1 vnto those, which in that sort will prosecute some iniurie or enormitie, done vpon them or theirs. In the 2 1.2 Venetian common weale, it is wholie forbidden vnto priuate persons to Accuse: so that the care of prosecuting offences, is wholie left to the publike magistrate. In France none but the kings generall Atturneis (whereof there be three) may take vpon him 3 1.3 to be an Accuser: and yet those not properly so to bee called. And this reason is alleaged by a learned writer in Law, of that nation: Least too great opportunitie of calumniation and of op∣pressing the meanest by the power of the mightie, should there by be gi∣uen; and for retaining of publike tranquillitie in the kingdome. It is testified by a graue & learned Ciuilian writer, 4 1.4 that the solemne maner of Accusation mentioned in the Ciuill law of the Romanes, is almost generally now growen in disuse.

The chiefest causes of such disuse thereof (as I doe conie∣cture) hath growen by these two wayes. The first, because it is so full of danger and trouble: The second, because it is and hath bene so odious and abhorred of most men in all ages. The danger and trouble may be considered at the beginning of the fuite: in the course of prosecuting it; and vpon the euent which may ensue of it.

At the entrance of the suite, vpon the Accusers inscription (5 1.5 which contained the hainousnesse of the crime, and the time of com∣mitting it) the Accuser was by and by to 6 1.6 endure Custodiae si∣militudinem,

habitâ tamen dignitatis aestimatione; to bee commit∣ted to the like safe custodie that the defendant was; regard alwayes beyng had to his dignitie. 1 1.7 He was also then bound with good Cauti∣on of suerties to prosecute the suite. Much like to the first of these was that lawe which was established by Crem 2 1.8 the lawe-giuer vnto the Bulgarians; who prouided that none accuser should haue audience giuen, vntill being bound and brought to the torture, it were by his owne examination found out, vpon what probable grounds his accusation rested.

In the course of prosecution much trouble may grow vnto Accusers, especially 3 1.9 in the crimes of Treason or Heresie. For in both these, not onely the defendant, but the Accuser also is subiect to exa∣mination by torture, vbi non subsunt indicia, where no plaine or pro∣bable matter appeareth, whether of them saieth truer.

The Inscription also (aforesayd) bindeth the Accuser to endure some punishment, vpon detection of any rashe or vndue practise in the Accusation. This rashnesse 4 1.10 or lewd practise consisteth in three seuerall points, and euery of them subiect to their punishments. The first is, when the Accuser doeth praeuaricari, that is, collude with the defendant in dealing against him: Dicis causa, & pro for∣ma tantùm, for fashion sake; perhaps to keepe others from it, as by suppressing or concealing the best proofes, and by admitting of false and slender defences brought and alleaged in the defen∣dants excuse. The second is, when he doeth Tergiuersari, that is, giue ouer and desist from his prosecution, vpon corruption, &c. The last is, when hee doeth Calumniari, that is, wilfully 5 1.11 impute false crimes vnto the defendant, which hee cannot prooue; or make any vniust petition, or by any other meanes deale deceitfully & ma∣liciouslie. This may bee resembled to that which wee call at the Common lawe Conspiracie; sauing that onely damages in mo∣ney be giuen thereupon. And this perill doeth fall out chieflie, and is discouered vpon the euent of the suite, when it is brought to an ende. For if the Accuser be pronounced guiltie of such Ca∣lumniation; then must hee endure the same punishment, which the accused partie ought to haue suffered, if hee had bene found guiltie; called by Aristotle 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, and by others poena talionis.

This appeareth by the Ciuill lawe, and is allowed also by the Ecclesiasticall. By the Ciuill, as namely by the Constitution of the

Emperors Honorius and Theodosius, where it is said to an Accuser; 1 1.12 Necimpunitam fore nouerit licentiam mentiendi, cum calumnian∣tes, ad vindictam poscat similitudo supplicij. Let him not thinke hee hath free libertie giuen falslie to accuse others, & that without punish∣ment; seeing the course of Iustice requireth that for due reuenge Ca∣lumniators doe suffer the like punishment, which they vniustly would haue brought vpon others.

It is also allowed by the lawe Ecclesiasticall. 2 1.13 For, Calumni∣ator si in accusatione defecerit, talionem recipiat. If an Accuser bee found to calumniate, let him receiue the punishment due to the crime imputed. 3 1.14 Qui non probauerit quod obiecit; poenam quam ipse in∣tulerit, patiatur. He that prooueth not his accusation, let him suffer the same punishment, into the danger of which hee brought another man. And to the 4 1.15 verie same effect did Sixtus an ancient bishop of Rome write to the bishops of the East partes. Yea, besides the like penaltie, it was decreed in a Councill, 5 1.16 that the Accuser that fayled in proofe, should bee excommunicate. If the Accuser can not (saieth the Canon of the Councill) prooue by witnesses that which hee obiecteth; then let him endure that excommunication, which the partie accused should haue done, if hee had bene conuicted. Neither can this be thought too grieuous for him, that willing∣lie and maliciouslie without iust cause, will conspire against an other: let him impute his punishment to his own follie. Actor de∣bet venire paratus. Besides the like punishment; such an Accuser by the old 6 1.17 Canons, was also pronounced an infamous person.

But from the grieuousnesse of this poena talionis, or for Calum∣niation presumed, all publike Officers (who 7 1.18 by vertue of their of∣fice are bound to Accuse) bee cleerelie freed and exempted. Such are called Aduocati, & Promotores fiscales, & regij, The kings Attorneis or Solliciters generall. The reason hereof was, because they did not of their owne voluntarie will, or for reuenge, as or∣dinarie Accusers vndertake such prosecution; but for the be∣nefite which redoundeth to the whole common wealth by the punishment of Offenders. Besides, they were not to reape any com∣moditie or gratification thereby 8 1.19 vnto themselues by part of the penal∣tie or fine; whereby they might bee corrupted or drawen to doe more thē otherwise were expedient. And therefore in both these respects such are freed from all suspicion of wilfull Calumniation, or re∣uengefull

bringing of men vnto a dangerous question and triall. Thus much how perilous this Accusation is.

How hatefull it is vnto others, and detested of most men, for one willinglie (as with delite) to become a publike Accu∣ser; may appeare first by the restraint thereof. 1 1.20 Aristotle saieth, That in a well ordered common weale, Accusations ought to be most rare. That very lawe (by authoritie whereof it was most vsed) prouideth, That it shall not be lawfull at any time 2 1.21 for a man to ac∣cuse more then two. And an Accusers voyce is called an abhomina∣ble or deadlie voyce, especiailie his that will Accuse the master of that familie where hee is commorant. Let such an Accusers breath (saieth that lawe) 3 1.22 in the very beginning, before it be heard, be stopped with a sword. Vocem enim funestam amputari oportet, po∣tiùs, quàm audiri.

Furthermore, it is naturallie giuen to vs all, to pitie euen strangers when they bee brought into danger and distresse by others; and in sort to abhorre them that doe wilfullie procure it. They ought (saieth Tullie in this behalfe) 4 1.23 to weie with them∣selues that an Accusation is no meane matter, but of great impor∣tance. It is much for a man to addresse himselfe vnto that, whereby hee may cast another out of his countrey, or take him out of this life; who both standes defended by himselfe and by his friends, yea and by such, as be meere strangers vnto him. For wee all willinglie runne to helpe to keepe off dangers: and when a man is called into triall for his life, libertie or Countrey (if he bee not a very enemie vnto vs) wee doe tender and yeeld vnto him the good offices, wishes, and ende∣uours of most perfect friends; albeit in deed he bee a meere stranger vnto vs.

How hardlie Tullie himselfe (though sometimes he vsed it) thought hereof in the time of his age, this saying of his decla∣reth. 5 1.24 It is the part of an hard hearted and cruell man, yea rather of no man, to bring manie into danger Capitis, of their liues, liber∣ties or countrey. For besides that it is full of perill, euen to the Ac∣cuser himselfe; it is also very infamous for a man to bring vpon himselfe to be termed an Accuser. Neither can it possibly be done without great wickednesse, that a man for filthie lucres sake should turne eloquence (which was deuised for the helpe and preseruation of men) vnto their plague and vtter ouerthrow.

This course was so hatefull, that oftentimes such as pursued it, were vpbraided with it as odious. For Mamercus Scaurus 1 1.25 when he accused Seianus, hauing this cast in his teeth, sought to excuse himselfe by the examples of their forefathers, that had done the like. But Cornelius Tacitus (who reporteth this storie) iud∣geth it to be an infamous endeuor, whereby noble families are greatly stained and dishonested. Seneca reporteth 2 1.26 that vnder Tiberius the Emperour, this rage of publike accusing (for so he termeth it) was very rife: and sayth, that it did waste that Common weale (euen in that time of peace) more then any ciuill and intestine warre, which they had amongst themselues, had done in times by past.

And not onely these Heathen men, but the Fathers of the Church, had it also in like detestation, that a man by Accusati∣ons should be so carefull to bring other men into danger; which 3 1.27 S. Augustine therefore among others greatly reprehendeth. And he saith in another place thus: 4 1.28 All matters, wherein we suf∣fer any indignitie, are of two sorts: The one is such as cannot be re∣stored; the other which may be. Now for that which cannot be resto∣red, we seeke some comfort by taking reuenge. But (alas) what doth it auaile thee, if thou being smitten doest smite againe, or that ano∣ther doe it, to reuenge thy quarrell? Will that hurt which is in thy bo∣dy, be thereby healed? Which seeing it cannot be truely said, it must needes be, that all these reuengements proceed but from an haughtie and a proud heart. In this regard, 5 1.29 olde Canons do call Accusation, Genus illaudabilis intentionis, a kinde of discommendable endeuour or sute. The reason whereof is, for that it is done (for the most part) vpon a reuengefull and wrathfull minde, whatsoeuer be pretended otherwise. If a man to excuse this, shall thinke that here∣in he pleaseth God, 6 1.30 for that he accuseth offenders; saying, that he doth it for their reformation and amendment; this man (as is testi∣fied) laboureth but vainely, and is in deed carried with a sting of ma∣lice, rather then heat of charitie. So that besides the danger to himselfe, we see how odious a kinde of prosecution, Accusation hath bene holden: and therefore we are not to maruell, that it is either recalled by contrary lawes (as in most places) or grow∣en in a maner to an vniuersall disuse in the world.

Hereupon, and perhaps also vpon occasion of certaine pla∣ces of Scripture, some may gather that the course of Accusation

is altogether vnlawfull to be vsed by any Christian. In deed, thus it is written in Leuiticus: 1 1.31 Thou shalt not stand against the bloud of thy neighbour; I am the Lord. And a little after: 2 1.32 Thou shalt not auenge, nor be mindefull of wrong against the children of thy people, but shalt loue thy neighbour as thy selfe; I am the Lorde. Likewise Iesus the sonne of Syrach sayth: 3 1.33 Be not angry for any wrong with thy neighbour, and doe nothing by iniurious practises. In the Gospell wee are thus commanded: 4 1.34 Ye haue heard, that it hath bene sayd; an eye for an eye, and a tooth for a tooth. But I say vnto you, resist not euill; but whosoeuer shall smite thee on thy right cheeke, turne to him the other also. Againe, 5 1.35 Loue your enemies; blesse them that curse you; doe good to them that hate you, and pray for them which hurt you, and persecute you. Which commande∣ments are also repeated by 6 1.36 S. Luke. And to like purpose 7 1.37 sayth S. Paul: There is vtterly a fault among you, because ye goe to law one with another. Why rather suffer ye not wrong? why rather susteine ye not losse?

Truely it may not be denied, but that the pregnancie of these places is such, that all prosecution of priuate iniuries or crimes, done vpon reuenge, malice, enuie, vaine-glorie, gaine, or any such like particular respect alone, is heereby condemned. For in Accusation it is first required, that a reuengefull minde be wanting, which is presumed to be present, when the iniurie pro∣secuted is but priuate, and such as is not subiect to restitution, according to the former distinction repeated out of S. Augu∣stine. Secondly, it must be done vpon a good zeale; to the en∣tent the offender may be amended, and others not hurt, by the euill example. For by those 8 1.38 wordes of the Gospell, such punishment of sinne, as tendeth to correction, is not forbidden; because that is a part of mercie, sayth S. Augustine. And (sayth hee) 9 1.39 holy men haue punished certeine sinnes euen with death, both to strike a profi∣table feare into the liuing, and that the death it selfe might not hurt them, who were punished by it, but the sinne diminished, which was like rather to be encreased in them, if they shoulde haue liued longer. Thirdly, Accusation by a Christian ought to be referred onely to the publike benefit of the Common weale. In this behalfe Plato (being but an heathen Philosopher) hath a very seuere saying. 10 1.40 It is an holy thing (sayth hee) to draw them into iudgement, that

haue committed any murther or sacrilege, whether it be thy father, mother, or any other whosoeuer, that hath so offended: so it be done for this end, to ridde the Common weale of them, as of a contagious plague vnto it. Lastly, Accusation may not be vsed for gaine and lucres sake. For such Accusers especially are odious to all men. Another heathen writer could say thus heereof: 1 1.41 The vse of this gainefull and bloudie eloquence, is sprung vp of late times by corrupt custome; and was deuised (as one Aper was woont to say) but instead of a iaueline or dart to thrust men thorow with: In locum teli repertus.

So that if men could keepe themselues strictly within these former boundes; then prosecution by Accusation would neither be so perilous to the Accuser, nor yet so hurtfull vnto others, but that it might still haue a tollerable and profitable vse in Christian Common weales. And then, that which Tullie wri∣teth, might haue place, where hee sayth; that 2 1.42 it is profitable to haue many Accusers in a Common weale; yet so, as that men be not abused by such Accusations. And thus much for prosecution of crimes by a partie.

Notes

• 1 1.1

  Clarus. q. 10.
• 2 1.2

  Decianus.
• 3 1.3

  Gul. Bened. in c. Rainutius. V. mortuo. nu. 200. de testam.
• 4 1.4

  Clarus li. 5. §. fin. q. 11.
• 5 1.5

  l. 16. C. de ac∣cus. & inscrip.
• 6 1.6

  l. 17. ibidem.
• 1 1.7

  l. Qui crimen. C. Qui accus. non possunt.
• 2 1.8

  Suidas in verbo Bulgar.
• 3 1.9

  Carrer. de Hae. res. cons. 117.
• 4 1.10

  l. 1. ad S. C. Turpillianum.
• 5 1.11

  Gloss. in Clem. 1. de sentent. & re iudicat.
• 1 1.12

  l. 17. C. de ac∣cus. & inscrip.
• 2 1.13

  Damalus ep. 3. ad Steph. Ar∣chiepisc.
• 3 1.14

  Had•…•…ianus 2. q 3. c. qui non.
• 4 1.15

  Sixtus c. 4. in 1. volum. concil.
• 5 1.16

  Concil. Brac∣car. 2. Can. 8. An. Dom. 610.
• 6 1.17

  Gelasius ibid. c. si quis.
• 7 1.18

  l. post legatum. §. Aduocatum. ff. de his quibus vt indignis. l. qui cum maior. §. penult. ff. de bo∣nis libert.
• 8 1.19

  Bart. & alij in l. Si quis in graui. §. vtrum. ff. ad S. C. Syllanianum.
• 1 1.20

  Arist. 6. l. Polit. cap. 5.
• 2 1.21

  l. Hos accusa. §. l. Iulia. ff. de accus. l. cum ra∣tionib. C. qui ac∣cus. non possunt.
• 3 1.22

  l. 20. C. Qui accus. non pos∣sunt.
• 4 1.23

  Cic. pro Mu∣raena.
• 5 1.24

  Cic. li. 2. Offic.
• 1 1.25

  Tacitus. l. 3. Annalium.
• 2 1.26

  Senec. li. 3. de benefic.
• 3 1.27

  August. li. 1. confess. cap. 18.
• 4 1.28

  August. in Ser∣mone Domini in monte.
• 5 1.29

  c. Si quis episc. 2. q. 7.
• 6 1.30

  Anaclet. ep. 1. de oppres. episco∣porum.
• 1 1.31

  Leu. cap. 19. V. 16.
• 2 1.32

  Vers. 18. ibid.
• 3 1.33

  Ecclesiasticus cap. 10. V. 6.
• 4 1.34

  Matth. 5. V. 38 & 39.
• 5 1.35

  Vers. 44. ibid.
• 6 1.36

  Luke cap. 6. V. 27. &c.
• 7 1.37

  1. Cor. 6. V. 7.
• 8 1.38

  August. in ser. Domini in mōte.
• 9 1.39

  August. ibid.
• 10 1.40

  Plato in Eu∣thyph.
• 1 1.41

  Quintil. siue Tacitus de claris Orator.
• 2 1.42

  Pro S. Roscio Amer.