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 ....

THE SECOND PART of the Apologie published in defence of sundrie proceedings by Iurisdiction Ecclesiasticall. (Book 2)

CHAP. I. Containing a distinction of offences, and seuerall kindes and ends in punishing them, with the necessitie of punishments.

ALl the controuersies remaining to bee handled in either of the two partes en∣suing, doe rest (chieflie) about the ma∣ner of discouering of such crimes as are punishable by ecclesiasticall Iurisdicti∣on. And because many bee talkers of these matters, who vnderstand but li∣tle the true nature of them; therefore to giue light vnto the whole disputati∣on, & to make it appeare to be a matter of no small consequence, but much to be stood vpon; before I proceed further, I mind to touch some necessarie points seruing for the better vnderstan∣ding of all proceedings against crimes. And first of the diuersitie of faults in generall, then the seuerall kindes of punishment of them, and the ends of such punishing, and of the necessitie of pu∣nishing them: whereupon (by consequence) dependeth a ne∣cessitie also to haue them first discouered.

All 1 1.1 faults are done either by committing; as where in action we doe that which is euill, or forbidden, called properly Pecca∣tum, a sinne, a crime and offence: or else by omitting and leauing vndone, some thing that we ought to do, called Delictum, à delin∣quendo, a default, negligence or contempt. For to him that knoweth how to do well, and doeth it not, to him it is sinne, saieth S. 2 1.2 Iames. And yet these two be often 3 1.3 confounded together, and the one is ta∣ken for the other in sundry writers.

Of both these sortes, some there bee which (by the Ciuill lawes) are called Crimina ordinaria. Such 4 1.4 as bee knowen by a peculiar name, and haue in lawe a certaine penaltie expressed

for the offenders in them, by speciall set Magistrates thereunto appointed, in which respect they are also called Crimina legiti∣ma. And all other be Crimina extraordinaria, so called, either be∣cause they were committed vncertainelie to some, as occasions fell out, or for that they haue no peculiar and proper name in lawe, or else no certaine punishment determinately appointed (by lawe) for those who offend in them; and most of them are therefore for the varietie of them (vpon the great varietie of spots which be in a certaine beast named 1 1.5 Stellio) termed in that lawe Crimina Stellionatus: and may be englished by the general terme of misdemeanors: and such be many of these crimes which vsually are enquired of and examined in the Starre-chamber.

Of animaduersions or chastisements exercised against offen∣ders for either of these kindes of faults: 2 1.6 some be by word onely, and some be by deed. Of those which be by word alone, (which we may English Aduertisements) the one is significantly by the Grecians termed 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 admonition, and the other 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 rebuke or reproofe.

The end of those animaduersions or chastisements which con∣sist in words, is referred onely to the reformation & amendment of him, vpon whom they are vsed, by making him sorowfull for it, & more circumspect & carefull how he carieth himselfe in the like afterward, and thereby is a man said to be won by another.

The punishments which be inflicted in deed and not in word onely, are in the Greeke tongue very aptly distinguished being of three seuerall sorts, according to the seuerall ends vnto which they are referred. For euery actual punishment and penaltie is ei∣ther 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 or 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the first of actual punishments (as Aristotle the most exact obseruer of the proprietie both of words & matters 3 1.7 noteth) is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉: it is such punishment, as especially aimeth at his bettering, vpon whom it is inflicted, being a punishmēt tempered with mercie. For 4 1.8 it is whē the par∣tie is in deed punished as an offender, yet the rigour of the penal∣tie is spared, & he cōmiserated and pitied as a man, and therefore apt inough to offend through humane frailtie. The end of the se∣cond sort of actual punishmēts called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉: that is to say, is done for his cause that prosecuteth it, or is grieued; to the intent there may be some satisfaction.

This may happen in two seuerall sorts. viz. either for the pre∣seruing or reteining the dignitie of the 1 1.9 law, or of the 2 1.10 magi∣strate happening to be violated (non enim licet impunè legesirri∣dere transgrediendo) as by fine or such like: or els for the con∣tentment of some priuate person, that hath receiued iniury by such offence; which in the French lawes is called Amende hono∣rable; and with vs in England are either dammages against him (as is in actions of the case) or els the offenders publik acknow∣ledgement of the fault.

The end whereunto the third sort of actuall punishment, called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, looketh, is especially for the example of others: and may be Englished an Exemplarie punishment: being vsu∣ally inflicted for more heinous crimes. Plato 3 1.11 affirmeth of this, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. It is (saith he) done for others, that they who beholde the punishment, may at least for terrour thereof, become better and amend. And else∣where in the same booke he saith to this effect, It is required, that euery one which is duely punished, be either himselfe reformed, and made better thereby, or to be an example vnto others to reforme themselues, at the least for feare of like punishment. To which pur∣pose the 4 1.12 Greeke Oratour also hath a like sentence of this matter.

Plato in his 5 1.13 bookes of lawes assigneth one other end of a∣ctuall and exemplarie punishment: which is, that they are also inflicted in grieuous offences, vpon a very detestation and ab∣horring of the crime. For which cause euen brute beastes, yea and sometimes insensible creatures also, are (in a sort) punished; by whose occasion some heinous deede happeneth. Of brute beastes slaine in this respect, wee haue example in Gods 6 1.14 owne law. The Romanes did of purpose nourish vp continually dogs in their Capitoll, to giue warning of any secret approch by night; and when the olde Gaules sacking Rome, had almost secretly surprised the Capitoll also: because the dogges at that time did not barke to giue warning, they had their legges broken, and in memorie of a detestation 7 1.15 heereof, some dogges euery yeere afterward were put to a kinde of punishment. for certeine were yerely splitted aliue vpon a twiforked stake made of elder-tree, and set vp in that sort publikely, betwixt the Temples of Iuuen∣tus and Sumanus in Rome.

And we reade, 1 1.16 that amongs the Athenians, insensible crea∣tures, as stones, trees, yron, and such like (which by their fal∣ling had casually occasioned the death of any man) were so∣lemnely, as it were, banished from thence, and remooued from the common vse and sight of men. The 2 1.17 Ciuill lawes do appoint the very houses to be ouerthrowen where forging of mony hath bene vsed. And vpon the same groundes doth the Common law of this Realme, giue Deodands to the Queene, as thinges accur∣sed, and to be either (at her Highnesse pleasure) destroyed, or be∣stowed vpon the poore: and the houses of attainted persons in treasons, to the entent to haue them demolished, and the trees about them to be rooted vp; and so in this behalfe is also the law in France, yet in frequent practices. All which tend to sig∣nifie, in what detestation & abhomination such enormities are to be had; and that men, who are endued with reason, may by such examples of law be admonished, what punishment more iustly abideth them, if they commit the same for which euen brute beastes and insensible thinges are so duely, as it were, pu∣nished. For either it doth, or at least wise ought to worke this effect in men. In which respect Aristotle 3 1.18 saith, that punishment is a remedie or medicine to be vsed against faults. And so 4 1.19 Cassi∣odorus grauely writeth: Remedium est contrapeccatum, accelerata correctio. Quicke punishment of sinne, giues a remedie against sinne. For all crimes and offences be (in truth) but as so many maladies and distemperatures in the body of the Church and Common weale; which if they be tolerated to grow (without restraint & coercion of lawes) will quickly spread like a canc∣ker, either to the destruction, or to the great and apparant dan∣ger of both: so that the necessity of punishments and penalties, by the very endes vnto which they are referred, may sufficient∣ly be thus approoued vnto vs.

The necessarie vse of them might be further enlarged and en∣forced also, by the consideration of sundry, who are interessed in this behalfe. And first in respect of the Magistrate himselfe: for it is said, Non 5 1.20 caret scrupulo societatis occultae qui manifesto fa∣cinori desinit obuiare. He that list not to oppose himselfe against a crime manifested vnto him, may iustly be had in iealousie himselfe, that hee is a partaker with the offender. And againe

1 1.21 Charitas non est sed languor, vbi mali mores digna poena non casti∣gantur. It is not charitie but faintnesse, to be remisse in puni∣shing offences. And of such as haue authoritie to punish offen∣ders, it is said, 2 1.22 Si illos negligant & perire permittant, ista potiùs falsa mansuctudo est crudelitas. And againe, Error cui non resisti∣tur approbatur. But of that Magistrate which punisheth offen∣ders, it is thus said, 3 1.23 Qui emendat verbere, in quem potestas datur, vel coërcet aliqua disciplina &c. eleemosynam facit, quia misericor∣diam praestat. To an offender himselfe it is behouefull, that hee may be recalled thereby from his wicked course. for 4 1.24 malum cùm perseuerat, augetur: and 5 1.25 tanto sunt grauiora peccata, quanto diutiùs animam detinent illigatam. Therefore 6 1.26 non corripere ma∣los est eos occidere. Et consuetudo peccandi tollit sensum peccati.

In respect of others also, that might take encouragement to goe on in wickednesse, or to commit the like, punishments be very necessatie. For in regard heereof, Tullie saith, 7 1.27 Impunitatis spes magna peccandi illecebra. And in law it is said thus: 8 1.28 Iussum est rectoribus prouinciarum, ne sinant crimina coale scere, sed puniant, ne facilit as ventae incentiuum tribuat delinquendi. To like purpose Ambrose 9 1.29 writeth: Nonne etiam cum vni indulget indigno, ad prolapsionis contagium prouocat vniuersos? And therefore it is grauely 10 1.30 said by another: Quae est ista misericordia, quae bonitas, vni parcere, & omnes in discrimen adducere?

Lastly in respect of the whole Church and Common wealth, punishments are most needfull. Examples are plentiful in Scrip∣ture, where for the sinne of a few, whole armies and societies haue bene punished. This we may see in 11 1.31 Achan, whose stea∣ling of the accursed garment, &c. was a cause of the ouerthrow of Israel in battell. So for 12 1.32 the sinne of Ely and his sonnes ma∣ny thousands of Israel were slaine by the Philistims. And to like effect 13 1.33 Salomon speaketh, when he giueth charge to kill Ioab. Smite him, (saith he) that thou mayst take away the bloud which Io∣ab shedde causelesse, from me, and the house of my father. And 14 1.34 for Ionas his disobedience, the whole shippe was in danger to be wrecked. Therefore an ancient Father 15 1.35 saith, That as one dis∣eased sheepe infecteth the whole flocke, so by the fornication or other crime of some one person, often oftentimes the whole people is holden defiled.

Vpon these and such like considerations, the light of nature

did teach euen heathen men thus: 1 1.36 Interest semper Reipub. delicta puniri. And 2 1.37 poenas ob maleficia solui, magna ratio suadet, the whole common wealth hath an especiall and continuall interest, and great reason also mooueth to haue wickednesse punished.

If then vpon so many & weightie causes it be needful to haue crimes punished, can it be denied but that all good means are to be vsed, to bring them to discouerie and conuiction, which must needs goe before the punishment of them? 3 1.38 Multis grassanti∣bus exemplo opus est, saieth the lawe: where there be many trans∣gressers, it is needefull to haue some made an example to the rest: and therefore 4 1.39 Peccata nocentium expedit esse nota: it is most expedient to haue euill mens lewdenesse made knowen and reueiled.

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 1.40 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 1.41 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 1.42 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.

CHAP. III. Of the sundry kindes of obiecting Crimes by a partie mentioned in the Ciuill lawe: as by reason of a mans publique charge and fun∣ction: also by way of Exception, Supplication, Cōplaint, De∣lation, and Accusation. The true signification of the worde Ac∣cusatio, his diuers acceptions, definition, and exposition thereof, with some reason of the frequencie of Accusatio in Courtes of the Ciuill lawes, in former times is also declared.

THe same, and none other maner is likewise pra∣ctised to bring offences into question by the lawes both Ciuill and Ecclesiasticall, in such Courtes, as either of those Lawes haue place and vse: That is to say, either by a partie, or els by the Office of the Iudge.

Crimes in such Courtes may be brought into question be∣fore a Iudge, vpon a parties prosecution (whereof we are first to speake) two maner of wayes. The one Commendablie, the o∣ther not so commendablie. Commendablie in two sortes, either by reason of some office and charge, or by reason of a mans owne necessary interest. By reason of a mans Office and due∣tie, as when Triumuiri regij, Procuratores Fisci, Aduocati regij (as French writers call them) or (as we speake and practise here in England) when the Queenes Atturney generall (who by due∣tie is bound thereunto) preferreth inditement or information a∣gainst some suspected criminous person, or wrong doer. This hath verie neere affinitie with that Denunciation or Presentment (called Iudiciall) which is to be spoken of hereafter. And albeit there be a kinde of partie; yet it is of the nature of proceeding of Office, which I also touched in the Chapter next precedent.

The Commendable prosecution by a partie against an Offence, in respect of a mans owne priuate interest; is either by way of Exception and chalenge, done in his owne necessarie defence, and to auoide punishment; or per viam querelae, by way of Com∣plaint for attayning his right.

Exception is sometimes taken against witnesses that be brought against vs, to this intent onely; that by obiecting and proouing them to be lewde or affectionate persons, there may no credite

be giuen to them in their depositiōs; and not to haue them puni∣shed. And this obiecting of Crimes by way of Exception, hath not y^e force of an Accusation. Or els 1 1.43 it is taken (before issue ioy∣ned) against him that would accuse vs, by our obiecting of some crime also vnto him. Now if this be done onely to the end to repel him from accusing; then hath it not the effect of an Accusation, whereby he may be punished (though he be proued guiltie.) But if he that so excepteth, doe set downe the time, place, &c. of such crime obiected against his aduersarie, and doe also instant the Iudge to condemne him: then shall it be proceeded in, as in Accusation, and may be called a Recrimination, or Crosse-accusa∣tion, made by the defendant.

The prosecution per Querelam, is also of two sortes: the one extraiudiciall, when 2 1.44 a man oppressed, humbly and ciuillie complai∣neth and expostulateth of some wrong done vnto him, desiring reme∣die, not so much to haue the other punished, as that himselfe may, (by ordinarie course of lawe) haue reason done him. This may properly be called Querimonia, a supplication to the Superior. The other Querela, is Iudiciall, being a kinde of Appellation; 3 1.45 and is either done by complaint vnto the soueraigne Prince, of some wrong done by an high Court (such as Praefectus Praetorio kept among the Romanes) from which none Appellation lieth: or els is a Com∣plaint vnto a superiour Iudge, of refusall, or delay to do iustice, by his inferiour Iudge; with vs commonly termed a double Querele. Thus much for the most commendable sortes of prosecution of offences, instituted by a partie.

Of those which be not so commendable prosecutions of of∣fences by parties, one is called Delatio, being the more odious and base; the other is Accusatio, properly so termed.

Delatio like wise is of two sorts. The one may be described to be a 4 1.46 secret accusation or imputation of some crime against any, made vnto a Magistrate, by him that is no way particularly in∣teressed in the cause. Against such, was that law 5 1.47 of Constantinus conceiued, whereby it was prouided, that no priuate person should be a delatour, or preferrer vp of crimes; and that none should be put vp, without the Aduocate of the finances, or reuenues of the crowne; whom we call the Atturney generall. And of such Delatours or Tale-carriers was this woorthy saying of an Emperour meant:

Princeps, qui delatores non castigat, irritat. Priuy accusers & back∣biters take encouragement enough from such a Prince, as will but heare, without giuing them any rebuke. Which saying, Suetonius 1 1.48 attributeth to Domitian; and Plinius 2 1.49 vnto Traian.

There is a second sort of Delatours & preferrers vp of crimes, which deale more openly then the former. And we finde also in law, two kindes of these. The first be a kinde of Calumniatours or Sycophants, 3 1.50 that preferre publikely (yet vnder other mens names and persons by them suborned and excited) some criminall matter a∣gainst any person. The other sort be those, who (for gaine or re∣ward) do in their owne names, preferre vp criminall and poenall matter against others. And of these, some doe informe of con∣ceiled landes or goods; due and escheated to the common trea∣sure of the Crowne; yet supposed to be deteyned wronfully, by any others. And these by the Ciuill lawe 4 1.51 are said to be odious and hated of other men; because they doe it for no duetie to the Prince or common weale; but vpon a greedie desire, to enioye to them selues, part of the gaine by others losse: being (by that law) some time a third, and sometimes a halfe part of that, which they finde (in trueth) to haue bin deteined by wrong, intruded vpon, or vsur∣ped. Others be mentioned there also, who preferre informations against offenders of such lawes, as do inflict mulctes & pecunia∣rie penalties for the offence; vpon hope of such gaine, as (by those lawes) is assigned to come vnto their share. This kind of Delators in this Realme, we call Infourmers, or Promoters: though their prosecutiō in this Realme do much participate (as afore is shew∣ed) with that, which is called ex Officio promoto, & in that respect, be greatly priuiledged. Among the Romanes such were cal∣led Quadruplatores, because commonly the fourth part of the penaltie, was awarded vnto them. So that by like reason our In∣fourmers may be called in Latine Triplatores, when they haue a third part; and Duplatores, when they haue the one halfe, as they haue in this Realme (vpon penall statutes) most vsually.

In what detestation and hatred this kinde of men (though not altogether vnnecessarie) were had amongs the old Romanes, this saying of Quintilian doth manifest, 5 1.52 Ad deferendos reospraemio duci, proximum est latrocinio. To be induced for reward or gaine, to preferre criminall matter against offenders, is next a kin to robberie.

And in deede, Delatours were farre more stomacked, and ma∣ligned, then other Accusours, as may bee gathered by these places in the Ciuill lawe. 1 1.53 Wee doe iudge him that ac∣cuseth in such a crime, to deserue rather rewarde, then to bee called a Delatour. And againe in another place: 2 1.54 Let not such feare either the name or suspicion of Delatours.

The last of those wayes, by which a partie brings offen∣ces into question and discussing before a Iudge, is Accusa∣tion. It is called 3 1.55 Accusatio ab Ad, & Caussa: quia Accusa∣tor quasi ad causam vocat. There bee other wordes of neere signification vnto this, yet not the same altogether, as po∣stulare, when it is vsed with the ablatiue case, Postulare aliquem crimine, insimulare, incusare, and such like. But there is a diffe∣rence noted betwixt this last, and Accusation, which is this: We are saide (saieth 4 1.56 one) properly incusare, such as bee our bet∣ters, and to accuse those, that be our equals or inferiours. But this difference is not much obserued. 5 1.57 This worde Accusation is sometimes so generally taken, that it signifieth an Action in a Ciuill cause; like as, on the contrary side, Action is taken for Accusation. Tullie, pro Milone nameth it Actionem Perduellionis. But most properly it is called Accusation, when it is intended in causes Criminall.

We reade of inwarde, and of externall, or outwarde Accusa∣tions. Internall Accusation is of a mans owne conscience. Such is the Accusation spoken of by Salomon. 6 1.58 Hee that is first in his owne cause, is iust: or as the vulgar Latine translation rea∣deth it, The iust man, is the first Accuser of himselfe.

Externall, or outward Accusation is either Priuate, or Publike. Priuate is either betwixt enemies, or betwixt friendes. That priuate Accusation and imputation which is among enemies, is of three sortes: either spitefull vpbraiding, called of the Grecians by the generall name 7 1.59 of 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, a worde also fit∣ting euery Accusation: or reproche and reuiling called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉: or els Calumniation; that is, malicious or false wresting of his enemies wordes or actions, to an offensiue purpose.

Priuate Accusation of one friend touching another, is nothing els, but a friendly expostulation with him, that is supposed not to haue dealt singlie or considerately, in the course of good friend∣ship,

called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 of the Grecians. That Accusation which is pub∣like, is either ciuillie moued, that is, for priuate amends vnto the partie grieued: or criminallie, that is, for some publike punishment; whether it be 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. And it is that Accusation, which here we especially treate of.

This publike Accusation, is sometimes done ore tenus; that is by bare wordes without writing, which the Grecians doe expresse also by the aforesaide name of 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. But most vsually publike Accusation is made by writing. That, which is conceiued in writing, in a more large signification, conteyneth and rea∣cheth euen vnto those preferrings of crimes (afore spoken of) that are done by Exception or Chalenge, by Complaint, or by Delation. And vnto this publike Accusation, which is of more generall acception, that definition of Aristotle agreeth: viz. that it is a publike declaration against some, of iniuries or crimes committed. But in the strict and proper signification it is taken for that solemne Accusation termed by the Grecians 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, and also sometimes 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; when as this latter is not taken gene∣rally, but for the most especiall kinde thereof onely.

The effect of this Accusation, when the crime declared is proued to bee true, and by arguments conuicted; is called by the Grecians 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; that is, 1 1.60 (as the Latines doe expresse it) arguere.

There is also another different acception from the former, of the worde Accusour, that is not hitherto touched: which is, when that worde is applied 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vnto any, that testifieth some criminall matter against another. And in this signification, wee doe finde it very 2 1.61 vsually taken in holy Scripture, as shall afterwarde more fully appeare. So in sundry statutes of this Realme, as namely in these wordes of a statute; viz. duely ac∣cused or detected by two lawfull witnesses: 25. Hen. 8. cap. 14. and in such other statutes; whereby is required, that the Accusours be brought face to face, against the prisoner: meaning thereby such witnesses as are to giue euidence (vpon their oathes) against the partie conuented. Hereof we haue diuers examples, and namely in these wordes of a statute, 3 1.62 That no person shalbe conuicted &c. or suffer &c. vnlesse the same offendour &c. be accused by two sufficient & lawfull witnesses, as shal willingly without violence cōfesse the same.

Where the witnesses sayings are called Accusation, & their De∣positions, Confession. Likewise in the same Kings dayes, where it is thus prouided, 1 1.63 That no person shalbe convicted &c. for any trea∣sons &c. that nowe be, or hereafter shalbe &c. vnlesse the same of∣fendour be thereof accused by two lawfull accusers: which saide accu∣sers at the time of the arraignment of the partie accused (if they be then liuing) shalbe brought in person before the partie so accused, and auowe and mainteyne that, that they haue to say against the partie, to proue him guiltie of the Treasons or Offences, conteyned in the Bill of inditement. So that here, those that giue euidence to prooue the matter of the enditement (which must needes be the witnesses) are called Accusers. which termein these & like statutes, seemeth to haue bin borrowed from the cōmon speach of men (who of∣ten vse to say thus; Who is able to accuse me of such or such things? meaning, to testifie against them) rather then that the true pro∣prietie of the worde was there followed. For Iustice Brooke in his Abridgement testifieth, 2 1.64 That the common triall at the Com∣mon lawe is by Iurie and witnesses, and not by Accusers. So that al∣beit witnesses touching offences (by some statutes and by vsuall speeche of the vulgar sort) be termed Accusers: yet (by his opinion) they doe (in very deede) differ much, in that the one is (as he saith) the triall of the Common lawe, but not the other. The true difference betwixt them he there prooueth also out of the Ciuill lawe; vpon relation made vnto him, by a Doctour in that facultie; and willeth it to be noted as a saying, which hee well alloweth. By the Ciuill lawe (sayeth 3 1.65 he) Accusers be as parties, and not as witnesses. For witnesses ought to bee indifferent, and not to come till they be called. But accusers doe offer themselues to accuse. For it is a good chalenge of a witnesse to say; that hee was one of his accusers. Quod nota.

Nowe howe vnreasonable were it, to admitte the testimo∣nie of a partie in his owne cause? So that by the Ciuill lawe (by which this prosecution is most properly handled,) Accu∣sation (truely so called) is defined to bee, Ius vlciscendi so∣lenni & poenali iudicio, poenas ac delicta: A right which the lawe yeeldeth to any of prosecuting crimes and offences for reuenge and pu∣nishment, by publique and solemne iudgement.

For the explaning wherof, we haue to note in this behalfe that

crimes or offences be of two sorts. Some be priuate, whereby a cōmon person onely, and no publique person, nor the state of the Common wealth (otherwise then by consequence) is offended. And this kinde cannot be prosecuted, but by the very party grie∣ued, or by some of his kinne and propinquitie. And it may be vr∣ged, either to the end of ciuil reuenge; that is, amends pecuniarie, called actio vel accusatio criminalis ciuiliter: or to the ende of a publique punishment, called accusatio criminalis, criminaliter mo∣ta. The crimes that be publique, are those that be heinous, as more deeply touching the state of the whole cōmon wealth and pub∣lique peace, then the former; and therefore may be prosecuted by any man, being called populares actiones, quia competunt cuilibet de populo: 1 1.66 sauing that certaine persons, for especiall causes, are by lawe from accusation to be repelled.

Vnder the word of solemne iudgement, be three things contei∣ned, and vnderstood, that such an Accusour must vndergoe. First 2 1.67 he must present the name of the accused person in publique iudge∣ment, as an offender in such a speciall crime: Then must he subscribe his owne name, whereby he is said vinculum inscriptionis accipere: And he must also be committed vnto the like custodie and ward, that the Accused (in regard of the qualitie of the fault, and dignitie of the Accusour) is to susteine, vntill the suite be finished. By this bande of Inscription or Subscription, the 3 1.68 Accusour bindeth himselfe to pro∣secute the sute: and professeth withall, that if he proue not the Crime, which he layeth against the Accused; then he himselfe will and shall endure the same punishment; that such crime (when it is in deede committed) doth deserue.

How vnusuall soeuer this be among vs, or how seuere this course of punishment may seeme vnto some: yet do we find the equitie of it in Scripture, and that it is to be inflicted vpon such, that calumniously impute false crimes vnto others. If vpon dili∣gent inquisition (saith 4 1.69 the Lord) it be found by the Iudges, that the witnesse is false, and hath giuen false witnesse against his brother; then shall ye doe vnto him, as he had thought to doe vnto his brother, &c. Thine eye shall haue no compassion, but life for life, eye for eye, toothe for toothe, hand for hand, foote for foote. How much more then vp∣on a wilfull Accuser, which calumniously seeketh for reuenge sake, vpon an vntrue Accusation so knowen vnto himselfe, to

bring another man into so deepe danger? An 1 1.70 example hereof we haue, in the stoning of the two Elders, that calumniously ac∣cused or witnessed against Susanna. This poenatalionis, or retalia∣tion, is also allowed by sundrie ecclesiasticall writers in like case: as by 2 1.71 Eutychianus, and 3 1.72 Sixtus, auncient Bishops of Rome. For witnesses be sometimes compelled to beare witnesse, who per∣haps may slippe by affection, inconsideration, or want of remem∣brance: which is therefore more excusable in them, then in Ac∣cusers; insomuch as these Accusers come willingly, without any excitation of others, to doe it. For nemo inuitus agere vel 4 1.73 accu∣sare compellitur: No man is compelled to bring an Action or an Ac∣cusation, sauing in especial cases, as 5 1.74 in Heresie. Omnes enim haere∣ticum prodere atque accusare debent: and in Treason also thus farre, that he which doth not at least reueile it, (though a man be not bound to prosecute therein as an Accuser) is to be pu∣nished, as partaker of the Treason. But this Inscription, ad poe∣nam Talionis, to endure the penaltie due, if he be not able to prooue his Accusation; is 6 1.75 not required in Accusations of priuate Crimes, whether they be Ciuillie, or Criminallie mooued and pro∣secuted.

Here perhaps some will marueile, how this prosecution of Crimes by way of Accusation, coulde be so vsuall, as it was (in former times) in the common weales of Athens, Rome, and such like, insomuch as it became (there) to be the most ordi∣narie meane of all others, to bring Crimes and offences into question: considering the great troubles and dangers, that by Lawe, did accompany the Accusers. Such therefore are to vn∣derstand, that fewe or none Accusers would deale so vnconsi∣deratly, as to vndertake it, vntill they thought themselues suffi∣ciently furnished with witnesses and other proofes, able to con∣uince them, whom they accused. Next, they are to remem∣ber, the vse of it to haue bene greatest in populare Common weales, where the readiest steppe to attaine vnto most honou∣rable offices and dignities (next vnto seruice in warres) was to be able to speake and deliuer their mindes eloquently be∣fore the whole people; who were the soueraigne Iudges (in most of those causes) either by way of Accusation, or els in D•…•…∣fence of others, being by Accusation called into dangerous que∣stion

of their liues, limmes, honour, libertie, countrey, or of their goods and landes. Thirdly, that when it was in most fre∣quent vse, the people were heathen, and vninstructed in the true knowledge of God: so that they thought, to put vp an iniurie done either to themselues, or to their friendes, to be great pu∣sillanimitie, and a token of a base minded man; and to be (in deede) a vice very discommendable, euen as the contrary vice thereunto is; viz. of doing Iniurie. For so 1 1.76 Aristotle teacheth in his Morall philosophie. In which respect, all danger to them∣selues, was the lesse regarded by them. Lastly, they thought themselues bounde in strict termes of duetie, no lesse to perse∣cute and to plague their enemies by all meanes, then they were to doe good, and to shew kindenesse vnto their friendes. There∣fore the same 2 1.77 Philosopher makes this to be a good argument and consequence; Wee must doe good to our friendes; therefore we must hurt and annoy our enemies. But Christ refuteth this hea∣thenish opinion in the Gospel, Matth. 5. vers. 43. & 44.

Now for proofes of that wee haue saide in this behalfe, we are furnished of them out of the grauest writers among the Greekes and Latines. Plutarch saith thus: 3 1.78 Publique Iudge∣ments and Accusations haue bene of long time ordeined, to th'en∣tent young men might be bredde vp in the studie of Eloquence; and that they might thereby be excited to the valoure of a braue minde: that like as dogs of the best kinde by naturall instinct doe at first sight fiercely assaile wilde beastes: euen so noble youthes should be kindled and inflamed with great courage thus by accusations to set vpon lewde and euill members in a Common weale. To like purpose 4 1.79 writeth Quintilian; Crediti sunt clari Iuuenes, obsidem dare Reipub. ma∣lorum Ciuium accusationem: quia nec odisse improbos, nec simulta∣tem prouocare, nisi exfiduciâ bonae mentis videbantur. Tullie assig∣neth three seuerall motiues, whereby without any discommen∣dation in those times a man might be drawen to become an Ac∣cuser of others. A man may be well induced (saith he) 5 1.80 to be an Accuser, either Pietate, in a duetifull care: by necessitie; or els by reason of his yeeres. If hee willingly enter into it, I doe attribute it to his Pietie: If he were commanded, then vnto necessitie: If in hope to attaine glory and renowne, I ascribe it to his youth. But vpon any other occasion to doe it, doth rather deserue resistance, then pardon.

He also else-where teacheth, for what ende we may enter into Accusation of others. Of accusing, we are not, (saith he) 1 1.81 to make as it were an vsuall trade or profession; neither are we at any time to doe it, but either in behalfe of the Common weale, as the two Luculli did; or for our nearest friends and allies, being tyrannously, and pite∣ously oppressed, whom we haue receiued to our patronizing, as M. Ca∣to, Cn. Domitius, and others did: or els but once onely, as happely in our flourishing youth, for attayning honour thereby. But it seemeth, that the chiefest ende among the rest was, for procuring with the people glorie & reputation of eloquence vnto thēselues. For so Apuleius an auncient writer testifieth, where he 2 1.82 saith thus. He doth not accuse me for to procure vnto himselfe glorie, as M. Anto∣nius did Cn. Carbo &c. For it was vsuall (saith he) with yong men of greatest ripenesse in learning, for their commendation to vndertake to accuse others, thereby to giue an experiment of themselues in Iudi∣ciall Courts, to the entent, that at some notable Iudgement or ar∣raignement they might become knowen vnto the multitude of Ci•…•…i∣zens. Yet this Custome, which in olde time was permitted vnto yong beginners, to set out thereby the forwardnesse and sharpenesse of their wittes, is long agone (saith he) growne into disuse. But what might be the very true causes of the giuing ouer of such Accusations, it will not be amisse here also to examine, as being very requi∣site for the perfite vnderstanding of the nature of it, and of some other discourses following.

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 1.83 vnto those, which in that sort will prosecute some iniurie or enormitie, done vpon them or theirs. In the 2 1.84 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 1.85 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 1.86 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 1.87 which contained the hainousnesse of the crime, and the time of com∣mitting it) the Accuser was by and by to 6 1.88 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 1.89 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 1.90 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 1.91 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 1.92 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 1.93 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 1.94 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 1.95 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 1.96 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 1.97 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 1.98 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 1.99 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 1.100 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 1.101 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 1.102 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 1.103 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 1.104 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 1.105 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 1.106 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 1.107 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 1.108 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 1.109 S. Augustine therefore among others greatly reprehendeth. And he saith in another place thus: 4 1.110 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 1.111 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 1.112 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 1.113 Thou shalt not stand against the bloud of thy neighbour; I am the Lord. And a little after: 2 1.114 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 1.115 Be not angry for any wrong with thy neighbour, and doe nothing by iniurious practises. In the Gospell wee are thus commanded: 4 1.116 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 1.117 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 1.118 S. Luke. And to like purpose 7 1.119 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 1.120 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 1.121 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 1.122 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 1.123 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 1.124 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.

CHAP. V. Of the seuerall acceptions of this word Officium: the signification of Inquisitio; Quaestio; Crimina ordinaria & extraordinaria; Cognitio ordinaria or perpetua, & extraordinaria: the reason why Enquirie by Office came in place of Accusation: of En∣quirie generall and speciall: Enquirie speciall ex officio nobili si∣ue mero, mixto, & promoto: and the priuileges of proceeding ex mero officio, aboue the other.

NOw because the aforesaid Cautions be so hard to obserue, and for that Accusation is so odious and of so perillous consequence (albeit these foure points were kept) in case either the Ma∣gistrate or people (among whome wee liue) should not so construe our doings, as perhaps we doe sincerely meane them; therefore where there be so ma∣ny difficulties incident to Accusation, lest crimes and offences should remaine wholly vndiscouered, and so vnpunished, to the great detriment of the whole body of the Common weale and

Church: It was very necessarily prouided in most places of the world, to haue the Iudges office by Enquirie to supply this want and scarsitie of Accusers and parties; which is the other gene∣rall meane afore spoken of, whereby offences may be brought into question & examination. The Office or duetie of the Iudge, is the cause efficient of this prosecution: and Enquirie is the pe∣culiar effect and act, which in Criminall matters that cause pro∣duceth; or the course whereby the Office doth proceed; and is that kinde of prosecution, which is counterdiuided against Ac∣cusation, and prosecution by a partie.

The word Officium in the Ciuill law (from whence it is taken) hath diuers acceptions. It signifieth either priuate dueties and thinges of conueniencie to be regarded and practiced, in the common life and societie of man with man; or els some more publike function. And in this latter signification, we reade of it to be taken two wayes. By the first, for a ministeriall function vn∣to some Court, hauing iurisdiction. And by the second, for the power, authoritie, or iurisdiction it selfe of the Court. I doe ob∣serue three seuerall ministeriall functions termed in the Ciuill lawes by this name Officium. The first are those persons, that were publikely appointed to present crimes vnto the Magi∣strates: as in these words: 1 1.125 Quae per officium praesidibus nunciantur. The second denoteth vnto vs an Apparatour, as in these words: 2 1.126 Officio, quod tuis meritis obsecundat, non Curialem quenquam, nec excaeteris corporibus volumus aggregari &c. The third an Actua∣rie that entred the acts of the Court; as in these lawes: 3 1.127 Officio tuae magnitudinis, datis precibus postulant &c. And againe, 4 1.128 Offici∣um Hellesponti adijt, & rogauit &c. In both which lawes by the word Officium, an Actuarie is vnderstood.

But Officium signifying the authoritie and iurisdiction of the Iudge, is that power, whereby he may deale of himselfe, without the petition or instance of a partie. And this Office is exercised either in actions Ciuill, or in Criminall. In actions Ciuill 5 1.129 some∣times the Iudge doth of Office decree a thing which he findeth to be equall besides the action, and besides the bond (whereup∣on the action riseth:) and 6 1.130 sometimes also (vpon a point in e∣quitie) hee relieueth by his Office such, as the strict law giueth none action vnto. Calistratus reduceth all causes Ciuill, wherein

a Iudge hath conusance extraordinarie, vnto these two gene∣rall heads: Per cognitionem 1 1.131 (viz. extraordinariam, siue officio Iudicis factam) aut de honoribus siue muneribus gerendis agitatur; aut de re pecuniaria disceptatur. A Iudge exerciseth his autho∣ritie extraordinarie in causes Ciuill, either when hee taketh knowledge of bearing offices and functions; or of causes pe∣cuniarie.

But in causes Criminall hee practiseth this authoritie of Of∣fice; aut cum 2 1.132 de existimatione alicuius cognoscitur; aut cùm de capitali crimine quaeritur: when hee sitteth to take know∣ledge, whether a mans honour or reputation ought to be at∣teinted; or when he enquires and makes inquisition of some crime capitall; viz. whereby a mans libertie, countrey, or life may bee endamaged. This Office Ouid touched 3 1.133 in these wordes:

Iudicis Officium est, vt res, ita tempora rerum Quaerere.—

The effect of the Iudges Office, and the course which hee thereupon doth followe, is called Enquirie. Inquirere (saith Bar∣tolus) est 4 1.134 quasi intus quaerere, diligentiùs abdita indagare, secreta detegere, & in iudicium deducere. It is to search into a matter deepely and carefully, that is kept close, to bring it to triall of iudgement, which it deserueth.

This Enquirie in the old common wealth of Rome, was more commonly called 5 1.135 Quaestio. Which word hath two significati∣ons in that lawe. The one more generall, signifying any enqui∣rie: The other, that enquirie and examination, which was vsed vpon bond slaues, and men of the meaner sort, by torture. Quae∣stionem sic accipimus, (sayeth the Ciuill lawe to this purpose) non tormenta tantùm, sed omnem inquisitionem & defensionem (or as another reading hath it) detectionem mortis. Where we see, that the worde Inquisitio is also vsed. Of this worde Quaestio, such as dealt by it, were called Quaesitores: and so doth 6 1.136 Vir∣gil call Minos a Iudge, quaesitorem. Out of which (by abbre∣uiation) came the worde quaestor, and quaestura.

It is here to be remembred, that in the common wealth of Rome, before the people had conueied ouer, and graunted away all their power and authoritie vnto the Emperour; they had in

themselues soueraigne authoritie aswell of punishing heinous crimes, as al other matters of importance. Crimes which be more heinous, were called publica crimina, crimes against the state: and the other, priuata delicta, priuate offences, being of lesse impor∣tance, and done but to priuate persons dammage. The punish∣ment for some of the publike crimes, the people reserued to them selues onely: but some other of them were first put ouer vnto certaine Officers purposely thereunto appointed, called Quaesto∣res siue Quesitores Parricidij; because they dealt in them (for the most part) of Office by way of Enquirie. Yet their dealing there∣in was called Ordinaria cognitio & ordinaria Quaestio: And the crimes which they enquired of, Ordinaria crimina, vpon the same occasion.

In the sixe hundred and fifth yeere from the first foundation of that Citie, it was ordeyned, that out of 1 1.137 the sixe Praetours for the time being, foure shoulde continually after bee cho∣sen to bee Quaesitores of so many crimes allotted vnto their seuerall hearing and determining: and therevpon those En∣quiries were called not onely Ordinariae, but also Quaestiones perpetuae; perpetuall and Ordinarie Enquiries of such crimes, as were so committed ouer by the people. Vnto which num∣ber Sylla in his Dictatorshippe added three other kindes of crimes: and so there became (in all) seuen perpetuae & ordina∣riae quaestiones; and so many Quaesitores of those seuen crimes one∣ly. For the conisance of all other publike crimes, did remaine still in the people, as afore.

But when so euer it happened either afore or after the ap∣pointing of such perpetuall and ordinarie Enquiries, that the people (as it seemed good vnto them for the time) did com∣mit ouer vnto seuerall Magistrates, 2 1.138 whether Dictatours, Cousuls, or Praetours, the conisance of any particular pub∣lique offence; because this was not ordinarilie so done, but vpon that speciall occasion, and for that one Enquirie, and they no set officers for that purpose: therefore it was saide to be committed extra ordinem, and was therevpon called Quaestio vel cognitio extraordinaria.

After this maner extra ordinem was a commission 3 1.139 of Enqui∣rie graunted to Fabius Maximus the Dictatour, against such

of the men of Capua, as were chiefe auctors of the conspiracie, and defection from the Romanes. The like to this here in England we vsually call a speciall Commission of Oier, and terminer, for some one matter. All other priuate and lesse crimes, the coni∣sance whereof was not reserued to the people, 1 1.140 were Enquired of and punished Ordinarilie by him that was Praefectus vrbi: And therefore they were also called Ordinaria crimina, and the coni∣sance which he vsed therein, Cognitio siue Quaestio ordinaria. And this appellation and distinction of Ordinarie and Extraor∣dinarie Crimes and Conisance of them, remayned after the po∣pular Common weale was surprised by Emperours; being by this occasion first begunne. So that Extraordinarie is not that (as some doe ignorantly imagine) which is contrary to good order; but any thing swaruing from the vsuall and more ordi∣narie course, and may bee both allowable and expedient; notwithstanding it be so called. And in this acception those wordes in these two rules are to be vnderstoode and taken: viz. Ubi subest remedium Ordinarium, ibi cessat Extraordinarium: And, Ubi cessat Ordinarium, ibi Extraordinarium remedium est aduocandum.

If it shall here be asked, why both the course of Accusation (which in olde times was more vsuall) is now lesse frequented; and also why Enquirie, that was counted Extraordinarie, 2 1.141 is now become an Ordinarie remedie, and 3 1.142 succeedes into the place of Accusation: for further satisfaction in this behalfe let such con∣sider that which followeth.

First, let that be remembred, which hath bene spoken in the next Chapter afore, touching the Perill and Hatefulnesse of Ac∣cusations. Next, 4 1.143 that things tending to an ende, ought to be directed in such sort, as that ende may best be atteined. And the ende whereunto any Lawe is referred, ought especially to be considered in all both interpretation and practise of Lawes. Whereas then in the times of those frequent Accusations, sun∣dry vniust vexations, conspiracies, and calumniations, with other misdemeanours in that behalfe, were very rife and vsuall: Therefore those in auctoritie were forced (to auoyde innocent men from such dangers) besides the former penalties, to make Lawes frō time to time, wholly to repel and keepe backe sundry

sorts of persons from Accusing: whereby this kinde of prosecu∣tion grew dayly to more and more disuse. So that it was requi∣site for restraint of Offenders, to expect at the Iudges handes for his Office sake, this necessarie duetie of prosecuting Crimes; a course more voyde from suspicion of such calumniation: where∣by that ende which the Law shot at, viz. to haue Offenders found out and punished, was farre better, and with fewer inconueni∣ences effected.

It was further considered by men of wisdome, how the great∣nesse of the mutuall perill on both sides, did dayly driue both the Accuser and the Accused, vnto vntollerable extremities. For when the Accuser had once vndertaken the matter to his owne apparant danger, if he coulde not proue it: was it not as likely (as it was easie) that he would rather secretly suborne vn∣true witnesses; then that by his enemies safetie, himselfe should be punished? A matter of fearefull inconuenience, considering that 1 1.144 it is better, an Offender in deede shoulde escape, then that any man which is innocent, should be punished.

On the contrary side, if the defendant finding himselfe in deede guiltie, should propose his chalenges or exceptions in law against the Accuser (which for his defence with Iustice might not be denied vnto him) can it be doubted, but that he might easily also suborne witnesses, for proofe of all his challenges; and so by auoyding the Plaintife from Accusing, auoyd also the peril he was in, how pregnant matter soeuer did otherwise lie a∣gainst him? Whereby it might often happen, that some vpright Accusers, who euer for pure zeale of Iustice did prosecute, should be endamaged both in their substance and good name; sundry Offenders should escape deserued punishment; and so the whole scope of seuere Lawes prouided against Crimes, should be fru∣strated and quite ouerthrowen. And therefore in great wisdome was this rigorous point of Iustice and hatefull course, thought good to be mitigated; and therefore by insensible degrees of cu∣stome, turned to a more moderate and sase course, not onely for the Prosecuter, but also for the defendant. For mitiùs agitur 2 1.145 cum inquisito conuicto, quàm cum accusato. He that is cōuicted by way of Accusation (especially by the Canon law) is more grieuously punished, then he which is conuicted vpon Enquirie. Which yet

is alwayes so tied, that being a prosecution of Office; the Iudge needs not lend his assistance, but where he seeth good and pro∣bable inducement to ground it vpon.

All Enquirie is either Generall or Speciall. 1 1.146 Generall Enquirie is a preparatoriecourse proceeding of meere Office, purposed to en∣quire and finde out criminous persons, within some certaine ter∣ritorie or compasse. This is of three sortes. The first is generall, in respect of the persons; but speciall in respect of the fault: as when the Coroner inquireth of a murder committed, and no cer∣taine person knowen: or an Ordinarie of a forgerie in some cause Ecclesiasticall. And by this 2 1.147 Enquirie generall, in certaine hainous crimes, euerie priuate person may enquire, to bring the Offenders in by lawe to be iustified. The second is generall in respect of the faultes, but speciall in regard of the persons: as when some Hospitall, College, or Cathedrall Church is visited. The third and last is generall, both in respect of the persons and faults, as a generall visitation of a whole Dioecesse; or an Enqui∣rie made by the grand Iurie at an Assise or Sessions of the Peace for the whole Countie.

3 1.148 Speciall Enquirie is, when some certaine and singular person and crime also, is enquired of, and brought by due course of iudgement vnto triall, to the intent to be punished. This Enqui∣rie is done either when there is a kinde of prosecuter besides the Iudge, albeit the proceeding bee of Office: or when there is absolutelie no prosecuter besides the Iudge himselfe, against the partie conuented. There may besides the Iudge be prosecuters of the Office in two seuerall degrees. One that doeth prosecute throughout the whole suite: as when an Information for the Queene alone, or for the Queene and Informer, is put vp at the Common lawe, and is termed by the lawe Ecclesiasticall, Of∣ficium promotum. The other, which doeth but prosecute or solli∣cite in some part of the suite; as by furnishing the Court with proofes, &c. which is called Officium mixtum, in some temporall courtes, a Relater.

Likewise 4 1.149 Officium promotum is of two sortes. The first is, when a man voluntarilie offereth himselfe to prosecute, called Promotor voluntarius officij; and he differeth a litle from a Partie. The second is, when the Court assigneth one to sollicite the Of∣fice,

who is termed Necessarius promotor officij, because hee may not refuse this emploiment. But when no persecuter at all doeth stirre in the matter: then the Court onely doeth it in duetie to the Common wealth, and to see sinne and disorder punished. Then is this Enquirie termed Officium simplie, or Officium me∣rum by the Canon lawe, and by the Ciuill lawes Officium Nobi∣le, as of more woorth and dignitie, then the other course which is by a Partie, and at his petition and instance. For by a more base appellation (in comparison of the former) that lawe ter∣meth this, Officium Mercenarium, ac si merccde aliquâ propo∣sitâ alterius petitiont quasi deseruiret: that-is, when the Office of the Iudge is (as it were) hired and employed, but at another mans becke, to serue his turne. For albeit in temporall courtes of other realmes, long custome (which is 1 1.150 the Wel-spring of all their iurisdiction) hath 2 1.151 established the verie same course of proceeding in causes criminall, euen at the instance of a Partie, with that which may bee done when the Office of the Court a∣lone proceedeth: neuerthelesse the lawe it selfe hath giuen greater priuiledges vnto proceeding of Meere Office, then vnto the other: which was some occasion also, why it was the ra∣ther called Nobile Officium Iudicis. The first priuiledge is, that whereas by lawe nowe altered by Custome, an Accuser or Par∣tie (properlie so called) is in danger of Poenatalionis, if he faile in his proofes, Propter praesumptam Calumniam: yet the pre∣sumption and entendment 3 1.152 of lawe runneth not so agaynst a Iudge exercising but the publike lawes by his Office, as it doeth against a Partie. And therefore is hee not subiect to that penal∣tie as a prosecuteris. 4 1.153 Non videtur facere iniuriam, qui iure pub∣lico vtitur. The next priuiledge by lawe yeelded vnto, procee∣ding of Office in a Criminall cause, which is denied to a prose∣cuter, yea though he bee not an Accuser or Partie, properlie so called; is, that the Iudge proceeding 5 1.154 of Office may giue an othe to the defendant, to answere some criminall matter. But it is otherwise, when the suite is at the instance of a partie which prosecuteth, because the defendant ought not to bee driuen to furnish vp his aduersaries intention. Thirdly, an Ordinarie or de∣legate Advniuersitatem causarum, that proceedeth of Office, is not bound to make proofes of the 6 1.155 fame (sauing before his

superiour Iudge, if an appellation be brought and doe lie) be∣cause it sufficeth, that the fame is apparant and knowen vnto himselfe. But it is otherwise in a delegate of one cause, or vpon the instance of one, that voluntarily prosecuteth. Fourthly, when the sute is at the instance of a partie, contrarie proofes for proofe of the defendants good fame, are admitted. But this need not be granted vpon proceeding of Office; because 1 1.156 the law doth not entend and presume against the sinceritie of the Iudge, as against the partie prosecuting. Fiftly, vpon the instance of a voluntarie prosecutour or preferrer vnto the Office, 2 1.157 fit litis con∣testatio (as I may English it) an issue is ioyned betweene the two parties. But if either one be but a soliciter and assistant to the Office; or els a preferrer assigned by the Iudge; or that the pro∣ceeding be of meere Office: there is then no contestation in the sute (properly so to be termed) but a kinde of contradiction (in sted thereof) required, betwixt the fame or denunciation &c. on the one side; and the defendants answere by deniall on the o∣ther side. Lastly, when the proceeding is of Office, 4 1.158 (euen af∣ter publication) moe witnesses may be receiued, because the feare of subornation in this case ceaseth, being the onely rea∣son of that rule, viz. that after publication moe witnesses may not be receiued: Insomuch as depositions of witnesses are alwayes published vnto the Iudge: But new witnesses may not be recei∣ued, when it is at the prosecution of a voluntarie partie, for feare of suborning them in the pointes, where he findes the former depositions came too short of his purpose. So that in these respects the rather, this proceeding of meere Office might be termed, Nobile Iudicis Offi∣cium. Thus farre touching Office and Enquirie by vertue thereof.

CHAP. VI. Of Denunciation, a speciall meanes of stirring vp the Office: the manifolde vse thereof in the olde Common weale and Empire of Rome; and at this present on the other side the Sea: the generall acception of that word: foure kindes of Denunciation: how they differ one from another: what is required in them: and when a Denouncer is to be condemned or excused of expenses. And what course of dealing against crimes and offences is holden both in Courts of the Ecclesiasticall commission, and in ordinary Courts Ecclesiasticall in this Realme.

BVt because it is not possible for a Iudge of all o∣ther men by himselfe alone to haue knowledge of most crimes committed, or probably enten∣ded to be committed: therefore haue those lawes deuised sundrie meanes to bring and pre∣ferre them vnto his knowledge and Office. A∣mong which Denunciation is principall, and indeed so gene∣rall; that (by sundry writers) it is made a third and seuerall kinde of proceeding against crimes, and by them counterdiuided a∣gainst Accusation and Enquirie. In which respect, I thinke it not inconuenient for the present purpose, to haue the nature of it also something opened. Neuerthelesse it is in deed no diffe∣rent course from Enquirie, 1 1.159 but a speciall meanes or instrument eliciendi potentiam in Actum: viz. of drawing the Iudges power and Office into action by Enquirie. Denunciation in a generall signification may be described thus; viz. A relating of some mans crime vnto a Iudge, to the end to haue the Offender reformed or punished; yet without that solemne inscription by the Denouncer, which the law requires in an Accusation.

But I holde it requisite first to note, what vse hereof and assi∣stance vnto the Office of Enquiry, the olde Romanes had in their policie by Denunciators; as it is recorded to memorie in the Ci∣uill lawes of that people. Which I do the rather in this place, as in the former discourse I haue done, to meet with the childish and sinister conceit of some; who suppose euery thing deuised and brought in by any Canon, how olde or necessarie soeuer it be; to be no better then Popish & Antichristian; and eo ipso (with∣out

further a doe or iudgement) to bee condemned. For (I hope) they will not iudge the lawes and policie of the Ro∣manes to be Popish, Antichristian, or vnreasonable; being (for ciuill prudence) the wisest and mightiest people that euer was, and altogether Heathens, when those lawes were framed and practised.

Of those, whom we now commonly call Denunciators, the law Ciuill hath two sorts. One sort are those, who (being pri∣uate men) doe willingly (for gaines sake) denounce others. Of these 1 1.160 that law thus speaketh: As no man is at first compelled Nunciare, to denounce any crime against another: so cannot such a Delatour desist, when it pleaseth himselfe. So that these be both Nunciatores and Delatores. Of these Delatours (being a kinde of Parties) I haue spoken before.

The other are such, as by reason of some Office or publicke charge, layed vpon them, are to Denounce offenders vnto the Iudge, to be by him proceeded with, vnto punishment. These (in generall) by the Emperour Constantinus haue this title gi∣uen vnto them; 2 1.161 Publicae solicitudinis cura, the care and regard of publike watchfulnesse. His wordes to that purpose be these: In quacunque causa reo exhibito, siue accusator existat, siue eum publicae solicitudinis cura perduxerit; statim debet Quaestio fieri, vt noxius puniatur, innocens absoluatur. Where (we see) the two kindes of Criminall prosecution are touched, and the proceeding of Office, is there counterdiuided against Accusation.

And these hauing such charge, be also of two seuerall sortes. The first whereof, besides their Denunciation and relating of crimes vnto superiour Magistrates, had authoritie also to enter into some Enquirie and Examination. Of these, certeine were called Curatores Viarum, 3 1.162 who also had a kinde of iurisdiction for meaner faultes committed in the high wayes, and had two Lictores or Sergeants (for that purpose) attending them. They enquired of Office vpon offenders and disturbers of the pub∣like peace in high wayes. Others were called Latrunculatores, who sought vp, and made generall Enquirie for offenders, and persons to be suspected; being not altogether vnlike vnto our Prouost Marshalles. I reade 4 1.163 also of some called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that is, principall conseruatours of common peace and tranquillitie.

These also, praeficiebantur disciplinae publicae & corrigendis mori∣bus. 1 1.164 There were also men hauing charge and Office, not vn∣like to these Conseruatours called Stationarij: whereof one sort called Milites Stationarij & limitibus Imperij praepositi, did 2 1.165 pro∣vide for the common peace, and also for the securitie of way∣faring men in the high wayes, especially about the borders of their prouinces; hauing authoritie to enquire and examine any persons, who they were, of what condition and state of life, from whence, and whither they trauelled. And these made re∣lation to the Magistrates of such suspected persons, as they found; and of the whole state of things abroad. Another sort 3 1.166 called also Stationarij simply (without addition) were onely to make Enquirie generall, and to denounce and present crimes; and after to furnish the Office with proofes of the crimes dete∣cted by them. And these were of the second kinde of such pub∣like denouncers, hauing none authoritie to make examination, but did onely generally enquire of faultes, and present them vp. Such were called also by this appellatiue name, Officium: 4 1.167 as in that law of Gordianus the Emperour, where it is sayd to the purpose in handling, thus; Ea, quae per Officium Praesidibus de∣nunciantur, & citra solemnia Accusationum posse perpendi incogni∣tum non est. Verùm si falsis nécne Notorijs insimulatus sit, perpenso iudicio, dispici debet. These were called also Officiales; and 5 1.168 the chiefe of them that had ouersight of the rest, were named Pri∣mates Officiorum. And of them this law 6 1.169 is to be vnderstood, viz. Siue quicunque alius Accusauerit, vel ad Officium nuncia∣uerit.

Other parts of Christendome (where the Ciuill lawes haue place) euen to this day doe reteine some the like Offices and of∣ficers for the selfe same purpose, though vnder other names. In some countreys men of those functions 7 1.170 being in townes, are called Decani; and in cities, Capita Centenariorum; who haue this ministeriall charge layed vpon them, to enquire of misdemeanours done within that quarter or warde, which is committed to their charge; and to denounce or present them vnto the Magistrates. And by the writers in that law, these be∣ing dealers in temporall Courts, and matters, are resembled vn∣to the like Officiales Iurati, that are there in Courts Ecclesiasti∣call.

The citie of London hath in euery Ward certeine yerely ap∣pointed to a purpose not farre vnlike, who are called the Ward∣mote enquest. And for Courts ecclesiasticall the like be here in e∣uery parish yerely appointed, called Church-wardens, and Side∣men, or Quest-men.

Vnder the generalitie of this word Denunciation, three seue∣rall things be conteined. First, when denunciation is made to the Magistrate, by any hauing a particular interest; it is called Que∣rela, a Supplication or Complaint. Such is that in S. Luke, 1 1.171 Re∣uenge me of mine aduersarie, sayth the widowe vnto the wicked Iudge.

Secondly, when it is made by such, as haue no particular in∣terest; it is called 2 1.172 Delatio. But when it is done per Aduocatos fisci, (such as the Atturney generall) or by other officers purpose∣ly thereunto appointed, then is it properly called Denunciatio, viz. An Information or Presentment. And thus much touching Denunciation in Temporall courts onely.

Denunciation generally taken, as we gather out of both the lawes Ciuill and Canon, is of foure seuerall kindes. The first is called Euangelicall; the second Iudiciall; the third Canonicall; and the fourth Regular.

Euangelicall is that, which proceedeth by those degrees that our Sauiour Christ prescribeth 3 1.173 in the Gospell. There be two ends hereof. 4 1.174 The principall end is, to procure repentance & amend∣ment in him, which offendeth. The secondarie end 5 1.175 where this cannot be effected; is to restreine others from the like, by his punishment spirituall, onely touching the soule; but not any temporall penaltie, either directly or indirectly. But albeit the purpose of this denunciation be the parties reformation; neuer∣thelesse if the crime be such, as hindereth the execution of his ecclesiasticall function; the Iudge of Office, is also to depose him, from his 6 1.176 Orders.

Concerning Denunciation Euangelicall, question is mooued by the Schoolemen (who in my poore opinion doe handle it for many points, both learnedly and iudiciously) whether in this de∣nunciation those degrees of monition first priuately to the partie offending, and afterward before two or three witnesses, bee necessarie, and at all times to be obserued in all crimes and

offences indifferently, before the offender may be denounced of them, vnto the Ecclesiasticall Magistrate?

For resolution whereof; wee are to distinguish betweene hidden or secret, and publike or open crimes or offences. If they be wholly hidden and secret; then indistinctly those degrees 1 1.177 of monition there prescribed, are first to be obserued, before it may be denounced to the Iudge; whether the offender by pro∣mising amendment and shewe of griefe, doe giue any hope of his repentance and reformation; or doe giue none at all: sa∣uing where the crime is of such qualitie, as that 2 1.178 it tendeth to some great and important dammage bodily or ghostly of the whole bodie of Church or Common weale, or of many parti∣cular persons: as, if it be Heresie, Conspiracie, or such like. For insomuch as such one sinneth herein, not only against thee (as the text speaketh) but against others also, albeit they knowe not thereof: therefore thou oughtest forthwith Euangelically to de∣nounce and present such an offence vnto the magistrate; to the entent the publike danger may be speedily preuented: conside∣ring that 3 1.179 the benefite of many is to be preferred before any particular persons fame: and the detriment (whether spirituall or corporall) of the whole Church or Common wealth, is ra∣ther to be regarded and auoided, then an euill fame against one offender, which (heereby) may perhappes be raised and bruited abroad.

Concerning crimes or offences, we are to vnderstand, that they may be sayd to be 4 1.180 publike or open two maner of wayes: either when they are committed openly; or when being secret, yet they be published abroad, and the offender is famed & brui∣ted, to haue committed them. Now if by either of these wayes, an offence be made open and publike; then it is to be denounced vnto him that hath authoritie to correct it; yea though neither of the sayd monitions haue bene precedent. For 5 1.181 we are to pro∣uide, not onely that he which hath offended, may be made bet∣ter and brought to repentance: but also that others to whose knowledge it is come, be not thereby scandalized & offended; according to that rule of S. Paul: 6 1.182 Rebuke a sinner openly before all men, that the rest may haue feare: 7 1.183 And (as a schooleman sayth) that they which haue taken offence by the fault, may be edified

by the punishment. But he goeth in this point further; That if it be but in the way to be published & made knowen abroad, though not as yet bruited; neuerthelesse it is to bee denounced to y^e Iudge, that the scandale which might arise thereof, may be (aforehand) preuented. So that if the chiefe end of this Denunciation cannot: yet the secondarie end may hereby be attained.

Neither let any man in regard of this Denunciation feare to be accounted malicious (saieth 1 1.184 S. Augustine:) for you are rather blame woorthie, if by holding your peace, ye shall suffer your brother to pe∣rish; whom you might haue saued by denouncing of his fault vnto them in authoritie. And againe, 2 1.185 Siue plectendo, siue ignoscendo, hoc benè agitur, vt vita hominum corrigatur. It is very good to bring mē to reforme their liues, whether it be done by punishing them, or by for bearing them.

All Denunciations Euangelicall 3 1.186 (so they be duelie brought afore him) the ecclesiasticall Iudge is to admit, because they be referred onely to the parties reformation, or restraint of him and of others by spirituall correction. But his proceeding in them, is (for the most part) summarilie and not Iudiciallie: and as a spiri∣tuall Father, rather then a Iudge.

The next kinde, termed Denunciation Iudiciall, in respect of the Denouncers and matters denounced, is either publike or priuate. 4 1.187 Publike, is that relation or solemne presentment of some crime, which is made vnto a competent Iudge, whether Ciuill or Ec∣clesiasticall, by publike Officers thereunto appointed: whereup∣on the Iudge of his pure and meere Office proceedeth by due Iu∣diciall course of special enquirie, to the acquital & clearing of the partie denounced, if he be found innocent; or to the punishing of him by some penaltie bodilie and temporall, which is the peculi∣ar end of this Iudiciall denunciation, vnto which also no Monition is required to proceed.

But Iudiciall and priuate denunciation is that, which may bee preferred by a priuate person in respect of a particular interest that hee hath, as being either hurt, or particularlie grieued by some fault or offence committed by another. The ende here of is, not onely the punishment of the offender; but that the denoun∣cer grieued, may be restored or preserued harmelesse.

For explanation of the latter of these by examples: first in a

Ciuil or temporal court; 1 1.188 as when he that is oppressed, is a bond∣man, * 1.189 or is subiect to another mans power (as an apprentice is:) so that hee hath none ordinarie action against his superiour that doeth wrong him, but by this Iudiciall denunciation; is forced to flie vnto the Iudges office for remedie. In a court ecclesiasticall: 2 1.190 as when a religious person, who hath no direct action agaynst his Prelate, denounceth some grieuances done vnto him, by his Ab∣bot or other superiour: or when as the poore of an Hospitall doe denounce and relate vnto their visitour some offences or grieuan∣ces done to them by the master thereof, requiring punishment and remedie therein by his office, in due course of lawe. And these two Iudiciall kindes of Denunciation are most frequent in this Realme, both in Ordinarie courtes, and also in courtes of Com∣mission, for causes and misdemeanors ecclesiasticall. But the first of them more vsuall in Ordinarie courts: & the second in courts of Commission.

The third kind of Denunciation is Canonicall, (so called, be∣cause it had his originall from that lawe;) and it hath also vnder it two kindes. The one more speciall, to bee preferred and made by him onely, who hath interest of hauing either his Prelate or Pastour good, or els some ecclesiasticall person good, who is vn∣der his iurisdiction. And 3 1.191 the end of this Denunciation is, to haue such (being criminous) to be remooued from their administrati∣on ecclesiasticall. The other Canonicall denunciation is more ge∣nerall, in that it may be preferred by any whomsoeuer; and con∣cerneth either the hinderance 4 1.192 or dissoluing of some mariage contracted or to be contracted, within the degrees forbidden: or els the desisting from some sinne, which is of that qualitie, that it increaseth by multiplicatiō of Acts in the same kind, or by con∣tinuance of some one Act, and wherein the Denouncer hath none other particular interest, then as euery Christian hath besides.

The last kind called Regular, is that Denunciation 5 1.193 which is published by any person in Chapter, touching some offence of his brother, committed contrarie to the locall and positiue rules or statutes of that place; to the intent he may amend it hereupon, rather then that it should come to a more publike denunciation; and from this, there lieth none Appellation.

The two first kinds of Denunciation, viz. Euangelicall and Iu∣diciall,

doe differ the one from the other, in sundry points, but e∣speciallie in these following. First, 1 1.194 euery one (though he be in∣famous for some crime formerlie committed, so he perseuere not in that crime still) is admitted to denounce another Euangelically: because it is indefinitelie commaunded by Christ, as a necessarie office of Christian duetie, for reclaiming of our brother from of∣fending. But none are to bee admitted to the publike Iudiciall denunciation; besides those which be specially thereunto appoin∣ted: sauing that the Canons 2 1.195 do compell all Clerkes to denounce the crimes of other persons ecclesiasticall: and to the priuate iudi∣ciall, none but such as haue some peculiar interest. And in this case it forceth not, though such do euen then perseuere in a crime; be∣cause vnder pretence of crime, no mā is to be repelled from pro∣secution of his right.

Secondly, Euangelicall denunciation is referred to the amend∣ment of the offender; whereas vpon the publike Iudiciall, his pu∣nishment is propounded for an end thereof: and the priuate is re∣ferred both to such punishment, and that the thing be restored, and the denouncer also preserued harmelesse.

Thirdly, vpon Euangelicall denunciation there is no procee∣ding in foro contentioso, or iudiciallie, but onely in Poemtentiali: whereas vpon Iudiciall denunciation, there ensueth a due course of Iudiciall proceeding; and thereof it hath his name.

Fourthlie and lastly, in priuate iudiciall denunciation or witnes∣ses (other then such as be lawfull and without iust exception) are admitted; because it lieth for restitution of some thing: But in Euangelicall, for proofe of the first priuate monitiō the denoun∣cer alone must (of necessitie) be admitted for the witnesse, if the denounced doe denie the fault: and for proofe of the second mo∣nition, any one other (together with the 3 1.196 denouncer) may bee admitted for two witnesses, though both of them happen to bee infamous for some crime in times past by them commit∣ted; so that at such time of denouncing, they perseuere not in the crime.

But albeit the lawe be thus, for admitting of some and reie∣cting of others from denouncing: yet throughout all Italie, and in other places of Christendom besides; 4 1.197 Custome in both courts hath thus farre preuailed, as to suffer any mā almost to denounce, whe∣ther

hee doe it of his owne voluntarie minde, or by occasion of a Charge and duetie in that behalfe laied vpon him. The reason hereofis; for that the Common wealth hath interest to haue offences punished: which could not so readilie bee done, if by this way of denouncing they were not at all brought vnto the Magistrates notice. A matter otherwise likely to happen by rea∣son of so many difficulties that accompanie Accusation, and so many exceptions, which may (by lawe) be taken both agaynst Accusers and Denouncers.

Those who haue 1 1.198 a publike charge of Denouncing and Pre∣senting, whether they serue in Temporall or in Ecclesiasticall courtes, ought (vpon paines otherwise to be inflicted vpon them) to present such offences as come to their knowledge; yea though otherwise they be not opened or published commonly abroad.

Likewise in courtes Temporall 2 1.199 this kind of publike denuncia∣tours ought to present some matters, which the lawes (perhaps) doe not punish at all: as namelie, if any kill an Outlawe or Ban∣nito, in places where such lawe is still in force. Also such Officers must present all casuall violent deaths: because albeit perhaps nothing doe presently appeare, but that such death did casuallie happen: yet in processe of time, it may fall out to be discouered, that it was by some malefactour.

Lastly, when such as haue charge to enquire generally, and to present, either doe not know certainlie whether an offence be committed or not, (a thing which may happen in such crimes whereof no traces or footesteps after the fact done can remaine; as in Adulterie, diffamation, and such like:) or where a fact doeth appeare, but the Author thereof is not knowen (as may bee in murder, sacrilege, forgerie, &c.) in both these cases, if the commō voyce and fame doe runne against any person in particular, they are bound to present euen such fame of the offender, as wel as the crimes themselues; together with all the circumstances they can learne thereof, & who be more perfectly instructed touching it, that perhaps can giue particular and more full euidence.

He that is a denouncer by vertue of his Office, is alwayes in his presentments to obserue, that he bee not found to haue preferred matter agaynst anie, by manifest calumniation or wilfull conspi∣racie. For 3 1.200 if this appeare euidentlie to the Iudge, euen such a

publique denounceour is not only to pay charges vnto him, whom he hath maliciously vexed; but is otherwise also vpō the Iudges Office to be punished, for a Calumniatour. But for Calumniation 1 1.201 onely presumed (which is then entended and presumed, when the defendant is cleared, onely because nothing can be prooued against him:) then he that is a Denounceour by reason of his charge layd vpon him, shall not be preiudiced. Neuerthelesse he that is a voluntarie Denounceour or preferrer, 2 1.202 if he doe but faile in his proofes, shall be thereupon condemned in expenses, and be otherwise also punished; albeit not so deepely as an Accuser, yet extraordinarily by the Iudges Office; because at his instigati∣on and solliciting, the Office doeth almost no lesse, then an Ac∣cuser doth. The reason hereof is, because in that he proueth not his Complaint; the Lawe presumeth euen hereupon, that he did but moue it by Calumniation, for vniust vexation. Which thing doth often keepe euen many good men backe from all Denun∣ciation of crimes, whereunto they are not specially bound; as S. Augustine 3 1.203 testifieth in these words: Good men (for the most part) doe beare with other mens faults, and holde their peace; because they want sufficient euidence in lawe, to approue that to the Iudges, which themselues knowe.

Yet there be certaine cases, whereby euen a priuate Denounce∣our and Informer shalbe excused frō any Calumniation presumed only: viz. when he makes not proofe of that which he obiecteth. The first is, when he did preferre it by a kinde of Necessitie: 4 1.204 as when the heire prosecuteth the death of him, to whō he is heire. Secondly, when it proceeded 5 1.205 vpon an extreme griefe; as when the husband accuseth his wife of adulterie, and yet perhaps fai∣leth in proofe. Thirdly, when the Crime 6 1.206 is very enormious; as for Coyning, Treason, &c. Fourthly, 7 1.207 when a great euil fame did runne thereupon. Fiftly, 8 1.208 when the Denounceour prooueth, that he heard the infamie spoken of, by men worthy to be credited. Sixtly, 9 1.209 when his witnesses pretending to him they could proue the Crime, doe deceiue him. Lastly, 10 1.210 when he maketh halfe a good proofe, as by one witnes without exception; which the Ci∣uilians terme Semiplenam probationem. For in all these Cases, the praesumed and entended Calumniation (grounded vpon this point onely, for that the Denounceour failed in proofe) doeth iustly

cease. But otherwise, the aforesaide generall rule of condemna∣tion in expenses, &c. is to be obserued. Thus much then of De∣nunciation, the most vsuall and generall inducement of a Iudges descending to Enquirie speciall against a particular person, for some supposed Crime.

Nowe it followeth to shewe (so neere as I can) what course of dealing against Crimes and offences is holden both in the Court of Ecclesiasticall commission (which of the two is more egerly impugned) and also in ordinarie Courts Ecclesiasticall, at least so farre as by Lawe is warrantable, if an appellation be brought.

The matters handled in the Commission Ecclesiasticall, are such Crimes Ecclesiasticall as are spoken of in the first treatise: be∣ing aggrauated (aboue the ordinarie course of them) by some circumstance of moment. Also these besides, attaching, and conuenting of Iesuites, Seminarie Priestes and recusants of both sorts, execution and punishment of the breache of certaine Statutes, as touching her Maiesties lawfull superioritie Ecclesiasticall, yeel∣ded vnto her Highnesse by 1 1.211 Parliament: the Statute for vniformi∣tie of Common prayer, and the Statute to reforme certaine disorders in the Ministers of the Church: punishing of Libellers, slaunde∣rous reports, and disordered preaching against Persons and matters Ecclesiasticall by lawe established: misdemeanours about Mar∣riages: conuenticles, tending to schisme: Abuse and contempt to Ministers: excessiue vsuries, simonies, incests, adulteries and other foule incontinencies, subornations of periuries in matters Eccle∣siasticall, and such like: when (either by reason of the power of the delinquents, or through some materiall circumstance) they be not so readily and easily reformable, by ordinarie iuris∣diction.

These matters are brought thither, when Ordinaries be noted of negligence in giuing redresse: or when they desire aide, either for the greatnesse of the partie, whom poore men dare not pre∣sent or denounce, or for the delinquents often remoouing from one Dioecesse to another, or for the dwelling of the witnesses else where, or for the offenders frequent, friuolous, and chargeable appeales, or for such like considerable occasion: or vpon credible information made by some great personage, or of some that be

in that Commission, or being referred from her Maiestie, or from the Lords of the Counsell: or vpon complaint of some partie iustly grieued, otherwise being without remedie: or by complaint of a whole Parish, or of a great part thereof: or vpon frequent relation of sundry credible persons taking offence and griefe thereat (and setting downe particular euidence of the facte) or in aide and as∣sistance of ordinarie Iurisdiction: as when the delinquent hath no certaine place of abode: or lastly by some notorietie of the fact, as by the parties knowen hand-writing: or for a matter done in great assembly of people, and such like.

Hereupon Articles be framed, wherein are conteined the place, time, and oftentimes the persons able to testifie & informe further, and all such other circumstances and Indicia, (which I in∣terprete as the worde is commonly vsed Euidences,) tending to the plainer manifestation of the Crime. The Articles are perused and allowed to be incident to the conisance of that Court, and conteining sufficient detection to open a way to proceede (by way of further enquirie ex officio, into that crime) by one of those three Commissioners at the least, (whereof one is of the Quorum) that doe subscribe the Processe, for conuenting of the partie.

This Processe is either by way of Citation (commonly there called letters missiue) or by way of attachment, when the partie is fugitiue, or flitting, or the Crimes be grieuous and publikely offen∣siue, so that it may probably be feared, he will lurke or steppe out of the way for a time. But in both courses, some one is bound to the Queenes Maiestie to prosecute, & to furnish the Court with witnesses for proofe of the matter, not to compound it priuately, and to pay charges vnto the partie, if it shal appeare he hath bene (without iust cause) troubled. Yet where the Commissioners themselues are sufficiently enformed Indicijs, viz. with euident matter against the partie, and where no such prosecutor or relator doeth offer to follow it, (so that the Court it selfe takes chiefe care of the prosecution) in some like fewe cases, such bonde is omitted.

Nowe when as the partie appeareth (for such iust conside∣rations as hereafter are debated and prooued lawfull) he is re∣quired on her Maiesties behalfe, to take oathe to answere the Articles or Interrogatories truely, (being matters of his owne

facte and knowledge, so farre foorth as by lawe he is bound) be∣fore euery particular thereof be made knowen vnto him; least after perusall (afore his oath taken) he be drawen by counsell to answere cautelously, indirectly, or wholly to refuse to make an∣swere: perhaps, because he sees they touch him ouer neerely, as coniecturing by whom they may be prooued. But after the oath is taken (in setting downe his answere) he may consider as aduisedly, and deliberate for so long time, as in any reason may be desired.

And thus farre foorth the partie conuented, is (for the most part without any partie at all) proceeded with, but ex officio Iudicum nobili vel mero: to the intent, he may not bee priuile∣ged to say, that he is not bounde to answere; being at the suite of the Office, and duetie of the Iudge (for the publique in∣terest of the Church and Common-weale) as perhaps by Lawe he might, if it were at first preferred and prosecuted by a partie. But after he hath perfitely answered them (for the most part) a partie is then made; who (if sufficient matter be not confessed thereupon to proceede vnto a iudgement, vpon the Articles and answere) doeth take vpon him to prooue it by witnesses; and then Interrogatories, exceptions against witnesses, and other defenses, (for the conuented partie) are vsed almost wholly, as in Ordinarie Courtes. By which making of a partie, that which was merum officium afore, doeth afterward become officium mix∣tum, viz. ex mero & promoto.

When the matter comes to finall iudgement, if the par∣tie bee conuicted, hee is punished either by penance, (for his reformation, and for satisfaction of the Church offended) or by imprisonment, fine, or censures of the Church, or by so ma∣ny of them, as is thought fittest, or by him or others most fea∣red, or to be most conuenient, weighing alwayes the qualitie of the person, and the offence, together with other circumstances thereof.

In ordinarie Iurisdiction, Crimes be vsually proceeded against either ex officio promoto, that is, at the instance and petition of some, that will voluntarily stirre vp and sollicite the Iudge vn∣to his duetie: or else ex officio Iudicis mero. In the first of these, albeit the partie conuented is bound to answere matters

by oathe (if it bee required) so they bee not of the Crime ob∣iected: yet the rule is, that he is not bounde to answere (vpon oathe) touching the very Crime it selfe, notwithstanding a fame doe runne hereupon, vntill he shalbe enioyned his pur∣gation.

But when an Ordinarie proceedeth against a crime, without a partie promouent, viz. ex officio mero: then his proceeding must be grounded either vpon a presentment of a fame, or of the crime (made by such as be specially deputed thereunto, as Church∣wardens, &c.) or proued by other witnesses, or else vpon notorie∣tie of the facte, speeches and information (of credible persons touching such fame or scandale thereupon risen) brought often vnto his eares (which is called clamosa insinuatio) or by some o∣ther course allowed by lawe to be sufficient, to open a way vnto such proceeding.

If it be vpon a perfite presentment of the crime or fame there∣of, the Iudge may safely without doubt of nullitie or grieuance in that behalfe proceede ex officio: and so may vrge the partie presented to answere vpon his oath, touching the very crime it selfe. But if there be no such presentment, but clamosa insinuatio de∣lata ad aures suas, or some equiualent matter, whereby the partie becomes offensiue and scandalous (though no man will prose∣cute or present him) yet the Iudge may and ought ex officio of very duetie, to proceede vn•…•…o the examination of neighbours there abouts, touching such fame or crime: which fame if it shall be by such enquirie found and prooued, then he may proceede as afore. But if vpon such denunciation and notification had from credible persons, and the crime being not declared to be notorius, nor none infamie or scandall prooued or presented, nor any other sufficient meane to open way to such Enquirie, he shal neuerthe∣lesse proceede, and vrge the partie to answere of the very crime vpon his oath: this (of it selfe) shall make none errour or nullitie in the proceeding, albeit not warranted by lawe. For if the par∣tie conuented shall make none opposition (as by saying that he is not presented, nor yet defamed of it &c. but be contented to an∣swere) then the processe shall stand sound by reason of his sub∣mission vnto the proceedings. But if the partie (taking cause of grieuance) shall appeale from such proceeding, then the Ordi∣narie

must be able before the Iudge of the appeale (out of the Actes) to iustifie either the fame, by some presentment thereof made, or by witnesses, or the notorietie of the fact, or else scandall found by way of enquirie, or by some denunciation, sufficient Indi∣cia and euidences (found afore) as the law doth allowe, to open a way vnto him, to proceede by enquirie ex officio. For (otherwise) the Iudge Aquo (being made partie in the second instance) shall be adiudged by his superiour Iudge to haue done him a grie∣uance, to haue his proceedings therein reuersed, and to pay charges to the partie appellant.

These be the courses of proceeding (in this behalfe) of both the said ecclesiasticall Courtes within this Realme: which in the Treatise following (for those aforesaid principall points chalen∣ged) remaine nowe to be particularly iustified: and shall hereaf∣ter (if neede require) be shewed to hold for lawe and equitie a more strict and exact course in many points, then not onely Courtes Ecclesiasticall, but euen Ciuill, (or as we heere speake) Temporall Courtes (on the other side the Sea,) vsually doe ob∣serue: or then (by the Canon, or Ciuill lawes in some respects) were needefull, if it were so thought expedient.

CHAP. VII. The Ciuill and Canon lawes allowe sundry meanes to grounde a speciall Enquirie of Office against a crime, besides Accusa∣tion and Presentment: an answere to a supposed Rule: how from Generall, they descend to speciall Enquirie: That besides these two, either a fame, or clamosa insinuatio; or priuate Iudiciall Denunciation; or Canonical Denunciation; or Indicia; or ta∣king with the maner, or other Notorietie of the fact; or Ap∣peachment by some of the Cōplices; or collusion of the Ac∣cuser; or the not obiecting in due time, that euery of these do wāt: or when the Enquirie tendeth but to a spiritual punishment; may seuerally any of them serue, to warrant such Enquirie: with some obseruations touching the nature of most of these.

THe publike Iudiciall denunciation which is made and preferred vp by speciall Officers assigned for that purpose, in vsuall speache we terme presentment: and is that presentment, which must needes be meant by the autors of the first opinion that is to be

handled in this second part, which is this, viz. that an ecclesiasticall Court may not proceede against any crime, without an Accusation or presentment. And it falleth in now very aptly to be treated of in this place.

But if it should be said, that vnder the worde presentment, any denunciation whatsoeuer were vnderstood by the authors of that opinion: besides that it is neuer so generally taken, the practice of ecclesiastical iurisdiction also, would not then (hereby) be restrai∣ned (which that opinion especially shooteth at) but rather much more enlarged, then they would be willing vnto. And yet though it were so generally to be vnderstood; neuerthelesse this opinion could not be truely defended, as shall here be made manifest God willing.

It is shewed before, that Accusation and Presentment be cour∣ses of proceeding most properly and peculiarly incident to Courtes, guided either by the Ciuill, or by ecclesiasticall lawes. So that we finde the authors of this opinion herein to deale some∣what more liberally, then certaine doe in other points: in that these doe hereby allow vnto an ecclesiasticall Court, some course of proceeding, according to the lawe ecclesiasticall.

I mind first to impugne this opinion, by shewing out of those two lawes, that a Iudge may haue Conisance against crimes, not onely vpon the prosecution of some partie, which is none Accu∣ser; but also of Office by way of speciall enquirie; though no such solemne presentment be preferred vp, by Officers purposely there∣unto appointed: and therefore, that sundry proceedings are war∣ranted against crimes, without Accusation, or presentment.

It hath bin shewed afore, that 1 1.212 vnto euery Accusatiō an Inscriptiō of the Accuser to endure poenam talionis, in case he proue not his intention, is necessarily required. But the proceeding to the coni∣sance of a crime by way of Exceptiō repulsiue only, or both Repul∣siue & Recriminatiue against the Accuser; is done by a partie, that is not to vse such Inscription: And therfore some proceeding may be against crimes by a partie, that is none Accuser. The like is truely to be said of both the sortes of Iudiciall Querelae or com∣plaints, mentioned also in the sixth Chapter of this second part.

Furthermore, at the Ciuill lawe, both Delatours of conceale∣ments or intrusions, and Delatours also vpon pecuniarie penall

lawes, doe omit such Inscription: and therefore are none Accu∣sers. For if we will affirme the proceeding vpon their prosecuti∣on, to be at the instance of a partie; then doth it follow hereupon, that some may be a partie in preferring offences & faultes, which is none Accuser. But if we will call it proceeding of Office, yet is it still without any presentment by officers specially thereunto appointed. And therefore it followeth, that the lawe Ciuill ad∣mitteth some prosecution of offences, without either Accusati∣on or Presentment. The same may be affirmed of Prosecutours or parties at the law ecclesiasticall, prosecuting either exofficio pro∣moto vel mixto. For there is neither Inscription to make them Ac∣cusers, nor presentment by officers thereunto assigned.

Perhaps here (by praeoccupation) that Rule wilbe obiected by some, whereby is said, that No man is to be condemned without an Accusour. Which doth encounter both that which is to be spo∣ken by me against this opinion; and also for, and in behalfe, of all this proceeding of Office: and also doth ouerthrowe the opinion it selfe, that we haue nowe in handling. For presentment, which is one of the courses allowed by this opinion, hath none vse in an Accusation, but onely openeth a way to the Iudges Office for spe∣ciall enquirie against him that is presented. So that if by such Rule no prosecution might be against crimes, otherwise then by Ac∣cusation: then all presentments, which be preparatories to pro∣ceeding of Office, must wholy cease.

For clearing of which doubt, I answere: that if this were a Rule (as is pretended) yet (like as all other Rules) it hath many limi∣tations, or excepted Cases. But 1 1.213 a great learned Ciuilian of late times teacheth vs, that no such Rule can be gathered out of any lawe, and therefore was (through mistaking) framed but by the common sort of Interpretours onely. The wordes of law, whence it is pretended to be gathered, be these: 2 1.214 If a man haue none Ac∣cuser, let him not bee debarred from Offices of credite and honour. Nowe it is not hereby forbidden to condemne an offendour vpon any course of proceeding besides Accusation; but only that a man shal not for a supposed offence, in the meane time be kept from bearing offices, vntill he shalbe iudicially called into que∣stion for it. This will more plainely appeare so to be, if we shall call to our remembrance, how many sundry sortes of Denounci∣atours

(afore spoken of) were receiued and vsed by the Ciuill law in the olde Romane Common weale and Empire, who were not tied to any Inscription. And besides these denunciatours, 1 1.215 the magistrates themselues also, are by that law required (euen with∣out any denunciatours) to search out robbers and other distur∣bers of the Common peace, and to punish them seuerely. And in truth it must needs turne to the great preiudice of the Com∣mon weale, if no Magistrates at all should deale against any of∣fenders, vntill some Accusers, yea or denouncers might be found.

Furthermore, the Emperour Traiane writing to Plinius, would not haue the Christians 2 1.216 (whom as it seemeth, he somewhat fa∣uored) purposely sought vp & enquired for by the Magistrates appointment; but to be punished onely, when they were volun∣tarily preferred vp vnto thē by others. Which doth argue plain∣ly, that the custome was then, to haue other sorts of offenders sought for, and found out by the Iudges and Magistrates; yea though none other man preferred matter against them. Yea, the words of the law in this behalfe are clere. 3 1.217 Mandatis cauetur de sacrilegijs; vt praesides sacrilegos, latrones, plagiarios conquirant; & (prout quis{que} deliquerit) in eum animaduertant. Et sic constitutioni∣bus cauetur, vt sacrilegi extra ordinem, dignâ poenâ puniantur. Ne∣uerthelesse, to the entent that Iudges may put away from them∣selues all suspicion of calumniation and conspiracie against men; the said learned man aduiseth them, not to descend to Enqui∣rie of office against any especiall person, but vpon some publike fame, or other good occasion of inducement to leade them thereunto. But as for generall Enquirie, the Iudge in duetie is bound so often to make it, as the prescript of lawes doth beare; that thereby supposed offenders being found out and discouered, may be brought into question, and vnto speciall triall.

Now therefore I will shew, that there is allowed prosecution of speciall crimes of Office; yet without any such Presentment precedent, as by this opinion is implied. It is true by the Rule of law, that generall Enquiry is precedent as a preparatorie course to make way vnto the Iudges Office of proceeding by speciall Enquirie against such, as thereby shall be detected, denounced, & presented. In which respect it is said, that 4 1.218 as Inscription goeth before Accusation; so doth Presentment before Enquirie.

Now, vpon detection made vnto them, either vpon generall enquirie, or otherwise (as it is testified by learned 1 1.219 writers in the Ciuill law) such Iudges as be discreet and sage, doe customably (in most prouinces) secretly receiue the witnesses depositions in writing (for the information of the Court) before the supposed offender be cited either really by attachment, or verbally by pro∣cesse serued on him. This they doe thus afore-hand, in two re∣spects: both that the defendant be not forewarned to flie or to hide himselfe; and that the witnesses (by subornation or other sinister practise of the defendant) be not drawen away afterward to denie the trueth, and to depose the contrary.

If the defendant shall afterward make his apparance, and de∣nie the matter obiected against him; then be the witnesses re∣examined and sworne againe in his presence. But if he shall still wilfully absent himselfe; in that case the first examination of the witnesses may serue for the Iudge to proceed by, euen vnto de∣finitiue sentence against him.

This first receiuing of information from witnesses, is called in that law Processus informatiuus; and the rest of the whole pro∣ceeding of the Iudge after the defendants apparance, or his wil∣full absence, is processus punitiuus. And vnto the taking of the processe informatiue (though some haue disputed otherwise) it is commonly holden, 2 1.220 not to be necessarie; that the supposed de∣linquent should be called. Which course of taking informations doth very much resemble the examination and enquiry against suspected malefactors, which commonly is vsed by Iustices of the peace and other Magistrates here in England.

But albeit detection rising vpon generall enquirie, doe (in this sort) often and very vsually make way to speciall: yet neuerthe∣lesse both those lawes do mention many and sundry other recei∣ued meanes besides, whereupon to ground a Iudges speciall en∣quirie: So that albeit Presentment be one; yet is it not the onely meanes, to open a way vnto proceeding of Office by enquirie.

The first of such meanes is a Fame of an offence to be by some certeine person committed. For albeit no Fame be presen∣ted by officers specially appointed: yet if there be such a fame in deed to be prooued, when need shall require; 3 1.221 then an Ordina∣rie Iudge may hereupon proceed to speciall enquirie against the

offender so by fame discoured.

This word Fame is deriued from the Greeke word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, and both of them 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 or 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, quasi à fando, of speaking; as a thing often spoken and by many. And therefore is it by Tullie 1 1.222 defined to be testimonium multituainis; the testimony of a multitude.

The proper effect of fame, is thus declared by olde Gramma∣rians writing of the differences of such words, as be of nere sig∣nification: 2 1.223 Opinio ostendit; Rumor tumultuatur; Fama indicat. The opinion or weening of men giues an inckling; Rumour tos∣seth a matter to and fro; but fame giues an euidence.

And albeit Plutarch 3 1.224 do report, that this was a common pro∣uerbe, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. In warre and in heare-say be many vaine and vntrue matters: yet the olde heathen Poets in an admiration of fame, doe attribute a kinde of diuine qualitie, and eternitie vnto it:

4 1.225 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.

Fame being a thing which many people bruite abroad, doth neuer altogether fall to nothing: for it is of a certeine diuine nature. And therefore by law 5 1.226 he that is mooued with fame, or by the assertions of men woorthy to be credited, is said not to be mooued vniustly, or without cause.

Fames be of two seuerall degrees. The one rising 6 1.227 vpon sus∣picion onely, and from an vncerteine authour: and this is not of force to make such proofe, that by reason thereof 7 1.228 the fault should be straight way beleeued, albeit such fame be coadiuuant, vnto other proofes. And it worketh a presumption onely, against the partie, 8 1.229 seruing to put him vnto his purgation.

The second degree in Fame, is when it sprung vp and had his originall from a certeine and likely presumption, and from probable matter. In which case it may of it selfe make proofe, either in a fact done long agone; (as to prooue by Fame, that a man is dead) or of a fact that 9 1.230 cannot easily (by direct proofs) be conuinced, but presumptiuely; as the very fact of adulterie. For a fame with probable presumption growing vpon some knowen acte comming neere vnto such a crime, doth make proofe of the very fact; so that the ende of the prosecution be not of verie 10 1.231 great preiudice: as for example; It may serue for proofe of adulterie, to the effect of debarring a womans

cohabitation or maintenance from her husband; but not 1 1.232 that she may be punished by death, where that penaltie is the Ordi∣narie punishment of that crime.

A fame may then be sayde to be blowen abroad, not onely 2 1.233 when the greater part of the whole neighbour-hood or towne doe speake thereof, as occasion is offered: but also (in case the fact be of that nature, that 3 1.234 it is restrained but vnto certeine per∣sons, which by likelyhood may know of it) then is it a sufficient fame, though none besides the greater part of such certeine per∣sons, doe speake thereof. If it be bruited among some few one∣ly, and not by the greater part of such; then is it 4 1.235 properly to be termed a Rumor and no Fame.

Now whensoeuer a fame touching some offence, runneth a∣gainst any person: the Iudge may thereupon ground his Enqui∣rie. For it is the common opinion of writers 5 1.236 in those lawes, that Fame doth succeed in place of an Accusation. One reason hereof is, because the very people among whom fame flieth, do seeme (in some sort) thereby to preferre matter vp, against a person so infamed: which ought to be as sufficient to excite the Iudge (knowing of it) to doe his Office, as if one certeine person or moe did present it vnto him. For by fame alone 6 1.237 an offence is sayd to be made knowen vnto a Iudge, though not thereby to conuince the partie; yet to the entent of Enquirie, and of descen∣ding to a triall by that occasion. And (as was afore alleged) 7 1.238 a man vpon fame alone, may be said publikly detected of a crime.

Some Diuines (for the times they liued in) most excellently learned, could say 8 1.239 that a publike fame concerning any crime doth stand in stead of an accusation; and thereunto doe applie that of Genesis, where the bloud of Abell is sayd to crie out against Ca∣in, when he had secretly murthered him. What hast thou done? sayd God to Cain. 9 1.240 The voice of thy brothers bloud cryeth vnto me from the earth: as if that crie of the bloud did occasion the Lord to enter vnto the examination of the impeached person. There∣fore doth God (though he knew all things) say vnto Cain; What hast thou done?

If Fame be very brimme and rife, 10 1.241 then is it none in iustice for a Iudge (though he be but an Ordinarie, from whom an Ap∣pellation doth lie) to omit to make any proofe Iudicially in actes

of such fame, before hee proceed. Albeit if an Appellation bee brought, he must then be able to prooue, that there was in trueth such a fame before he proceeded. But if the fame be not so strong and vehement; then it is expedient for such a Iudge to haue the fame (being not presented) to be in Actes, first Iudiciallie proo∣ued, by deposition of two witnesses at least. For 1 1.242 so many will suffice to prooue a fame (though they be none Officers thereun∣to assigned:) But two alone (where a greater number is) cannot make a fame.

But when the prince or such magistrates (from whom none Appellation lieth) doe proceed vpon a fame not presented; whe∣ther it be verie brimme and vehement, or otherwise: yet in them it is not requisite to be prooued in Acts 2 1.243 that there was such fame precedent; because it is sufficient to bee so, vpon information made knowen vnto them extraiudiciallie. For the law presumeth more stronglie for their integrities, and freedome from Calumni∣ation, Conspiracie, and wilfull vniust vexation; then of euerie in∣feriour ordinarie Iudges.

That Rule which is set downe by Interpreters, that A fame ought to appeare or be prooued, before a Iudge doe proceed, when as there is no Presentment; is subiect to diuers exceptions in lawe. For first, it hath 3 1.244 no place in the crime of heresie, wherein (by the common opinion of writers) a vehement suspicion (grounded vpon any credible relation) doeth suffice to begin a speciall enqui∣rie. Secondly, that Rule faileth 4 1.245 when special enquiries be framed either by commandement, or by knowledge of the prince him∣selfe; so such commission be obtained motuproprio, & for the prin∣ces own seruice; but not at the instance of any partie particular∣lie interessed therein: and such is the Commission ecclesiasticall. Thirdly, it holdeth not 5 1.246 when such enquirie is made, not to the end of punishing corporallie; but of reforming the partie spiritu∣ally for his soules health. Fourthly, fame is not required, 6 1.247 where the enquirie is neither made for any punishment corporall or spiri∣tuall; but onely to the end to find out, whether he that is presen∣ted or elected to an ecclesiastical function, be worthie thereof or not. For in such case, to the end of keeping backe an vnwoorthie person; the superiour without either fame or other inducement, ought to enquire of meere office, very carefully touching him. But

it is otherwise, when enquirie touching a fault is instituted against one that is already admitted into that function, whether the pro∣ceeding be then for his remoouing, or for other punishment.

On the contrary side it is receiued by the lawe Canon, that al∣beit an euil fame yea 1 1.248 though it be not scandalous and offensiue, be sufficient to ground enquirie against a priuate or commō per∣son: yet euery fame (except it be also scandalous) will not suffice so to proceed against a Prelate.

The whole course by lawe prescribed touching infamie or e∣uill fame going afore a speciall enquirie, in other 2 1.249 realmes abroad (euen where the Ciuill and Canon lawes haue place) is long since quite growen in disuse and left vnpractised in both courts, not onely in those excepted, but in all other cases also besides, as by sundry writers of those countries is testified.

Neuerthelesse in the courtes Ciuill and Ecclesiasticall within this Realme, this kind of proceeding vpon an Infamie according to the very prescript forme of those lawes, is still required to be practised and obserued. So that by this discourse (how fame doeth open a way to enquirie) may appeare, the vntrue and iniu∣rious Calumniations of those men, who being led by ignorance, or some worse matter; doe buzze abroad, that Ordinaries may make a fame, when and how often themselues list. But if they could; to what purpose should they be so vniustly minded, ha∣uing (by lawe) so many sundry other sufficient inducements be∣sides fame, to ground their speciall enquiries vpon; as partly haue bene, and partly yet remaine to be here opened?

For another & a second means besides presentmēt, which doeth also opē way vnto speciall enquirie, is Clamosa insinuatio, being not very vnlike to a fame, yet not the same. And it is, 3 1.250 when as a Iudge stirred vp by sundry frequent reports of credible persons (yet with∣out their depositions) doeth descend to speciall enquirie, euen with∣out any preferrer or prosecuter. And this is to be done by him, whē as without scandale and offence, it cannot be dissembled or win∣ked at. For in this case, not only the iudge may, but also he ought to proceed vnto enquirie of his meere office, against him which is so detected and scandalous.

A third means of grounding speciall enquirie besides present∣ment, is Cōplaint, made either by priuate Iudiciall, or by Canonicall

denunciation. For if such be made (yea though no fame doeth ap∣peare) the Iudge is bound 1 1.251 to frame enquirie of Office against the partie denounced; or els he is to be punished, no lesse then he is to be, when publike denunciation or presentment is made by officers, 2 1.252 if he shall not proceed thereupon. But the priuate Iudiciall and generall Canonicall denunciation doe herein differ from publike de∣nunciation; because after publike presentment 3 1.253 bee made to the Iudge, the Prosecuters are not bound to deale any further there∣in, but doe leaue it to the Iudges meere Office: whereas in the o∣ther two denunciations last mentioned, the Denouncer doeth pro∣secute and sollicite the office.

4 1.254 This denunciation commeth in place of a publike fame, and thereby openeth a way to enquirie. And by Custome 5 1.255 now ge∣nerally receiued in other countries, any man is admitted in this sort to denounce an offender, no lesse then those which be officers specially deputed.

The maner of preferring denunciations in the partes on the o∣ther side, is in effect thus: Hee that denounceth, 6 1.256 doeth make knowen to the Iudge in Acts, that at such a time by such a man, this or that misdemeanor was committed; and that N. and A. &c. are more sufficientlic informed in the particulars of that mat∣ter. In preferring vp Presentments it is to be obserued, 7 1.257 that if the crime be done by committing any thing; the place must bee ex∣pressed: but if by omitting; then the setting downe of the place, is not required of necessitie.

Here perhaps some will obiect against this, & all other means of opening a way to speciall enquirie, besides fame; sundry spee∣ches of writers in both these lawes, whereby they doe seeme to require, that a fame necessarilie goe before euery such enquirie. But we are taught 8 1.258 how they ought to be vnderstood; & that in all such places, they do but speake thereof, as of one especial and principall means, not excluding all other: and therefore must be thus takē: that by law a fame is but thē necessarily required; whē there is neither denunciatiō, cōplaint, nor any other means besides, y^t be allowed to be sufficiēt, whereupō to groūd a special enquirie.

A fourth means besides Presentment, whereupō a special enqui∣rie may be entred vnto, are Indicia, so called ab Indicando, which (according as y^e english word w^t vs is cōmonly vsed) I do interprete

Euidences, or certaine markes and tokens. For when other in∣ducements thereunto doe want, these may serue that turne. In which respect it is sayd 1 1.259 that Indicium sufficiens aequiparatur Fa∣m•…•…: a sufficient euidence or signe is aequiualent vnto a Fame. Like as on the contrarie side, when such euidence cannot bee had, a Fame may serue in stead thereof. Therfore in forreine parts where the course of hauing a Fame to go before Enquirie speciall, is by cu∣stome disused: yet neuerthelesse, if no sufficient Indicia or euidē∣ces for the matter doe appeare; 2 1.260 euen in those countries it is still required, that at least a Fame do run thereof. So that these and all the rest of the meanes, that open a way vnto speciall enquiries, are like the Physitians 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; i. things that may serue to be vsed, one of them instead of another that wanteth.

These Indicia be in lawe taken two seuerall wayes: either in a more large acception: as when they signifie such presumpti∣ons which be expreslie set downe in law, to make a full proofe, 3 1.261 so that no proofes may be made to the contrary, commonly called praesumptio iuris, & de iure: or els they be of a more strict and pro∣per acception; importing some signe of a crime or other matter, 4 1.262 which may serue to the finding out of Trueth. And this sorte of Indicia are to be considered in three 5 1.263 seuerall degrees.

The first are called Leuia Indicia, light inducements or su∣spicions: The second be Probabilia Indicia, more strong & pro∣bable: & the third are Indicia violenta, vel indubitata; most preg∣nant and forcible euidences.

The first degree of them doeth produce these two effects; First, that the partie detected may thereupon be arrested & atta∣ched (by courtes hauing this authoritie) lest he flie: and second∣lie, that the Iudge may enter into the taking of further particu∣lar informations thereof In processu informatiuo: but they are not sufficient straight way to frame thereupon processum punitiuū. For to take further informations 6 1.264 onely touching a crime, any probable su∣spicion suffiseth; by which the Iudge may (with reason) be induced to beleeue, that the crime was cōmitted by such an one. And it is no mar∣uel y^t such reasonable suspiciō may serue a Iudge so farre, as to take further informatiōs; seeing it excuseth an Accuser frō manifest ca∣lumniatiō by Tullies iudgement, as he testifieth in these words. It may happen (saieth he) 7 1.265 that a mā accused is innocent. But notwith∣standing

he be cleere from the fault; yet is he not without suspicion. In which case (albeit it be lamentable in respect of the accused:) yet the Accuser (in some sort) may for such suspicions sake be pardoned. For seeing he hath something to say criminously grounded vpon good suspi∣cion; therefore may be not be taken wilfully to misuse, and manifestly to calumniate or conspire against him, which is guiltlesse.

The second sort of Euidences (properly and most vsually ter∣med by the generall name of Indicia) though they be of lesse force, then to make probationem semiplenam: yet arethey 1 1.266 suffici∣ent to ground a speciall Enquirie vpon. Inquisitio potest fieri, quan∣do extant indicia propinqua ipsi male ficio; quia tunc surrogantur loco infamiae. And of this sort are those lawes to be vnderstood, 2 1.267 which affirme Indicia non sufficere ad conuincendum: such inducements are not strong ynough to condemne a man. Yet 3 1.268 if moe of them together doe happen to fall out in one matter, each of them be∣ing seuerally (in his owne nature) perfect: then may they all be ioyned together, and may suffice to the condemning of him, vn∣to a mulcte pecuniarie or fine; but not to condemne him vnto any corporall punishment; sauing when the Soueraigne Prince, or his chiefe Counsell of State, doe thereupon proceede. And yet euen in this Case, such corporall punishment ought to be extraordinarie onely: that is, some lesse and milder punishment, then the pre∣script of lawe prouideth for an offendour in such a crime; if he had bin conuicted either vpon his owne confession, or by witnes∣ses; and not alone per Indicia; that is, but by presumtiue proofes, or probable Euidences. For it is to be vnderstood, that in most forreine partes, the maner of al punishments, are arbitrarie to the Iudge, according to circumstances.

The third degree of them are such, and so strong euidences, as that not onely speciall Enquirie for punishment may vpon any of them be framed: but the partie may 4 1.269 thereupon alone, be also condemned; as is commonly holden by writers in lawe; especi∣ally in secret treaties, hidden crimes, and al such, as (in their owne nature) be of difficult proofe.

That such indicia indubitata or violent presumptions may serue for full proofe in matters of very difficult proofe, we haue an example in Scripture of Salomon; 5 1.270 whose wisedome is there∣fore highly commended, because he grounded his iudgement

(whether of the two women that contended, was the true mo∣ther) vpon the motherly pitie which he found in her, that would rather forgoe her naturall childe, then to see it dismembred and parted in twaine.

Nowe because of this diuersitie among these Indicia, if any shal require a true note of distinction, how these three sortes may be exactly discerned one from another: it is to be answered, first generally out of the wordes of lawe: Quae 1 1.271 argumenta, ad quem modum probandae cui{que} rei sufficiant, nullo certo modo satis definiri po∣test. And according to this is the Rule; Omnes probationes sunt arbitrariae. But particularly in this point, ye must knowe, that 2 1.272 the whole matter Indiciorum, of Euidences, must be left to the arbi∣trarie iudgement of an vpright and syncere man̄, such as a Iudge is presumed to be: That hee according to the qualitie of the person, crime, and manner of the suspicions and presumptions may iudge, in which of these three degrees euery Indicium, or seuerall Euidence is to be taken.

A fift meanes (besides Presentment) of opening way to spe∣ciall Enquirie, in processu punitiuo, is that detection which the Gre∣cians call 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. 3 1.273 So was the woman taken in the very acte of adulterie in the Gospel. The Latines terme it thus; Deprehen∣sio in flagranti crimine. And vpon the borders of England, taking one with the bloodie hand; or (as it is more commonly expressed) taking an offendour with the manner. For of this it is testified, 4 1.274 that it openeth way to speciall Enquirie. And the like is to be saide, when a Iudge himselfe (sitting publikely) seeth some crime committed. Whereof writers in lawe doe assigne for rea∣son (in this behalfe) the Iudges iust griefe, vpon the indignitie of the facte, and vpon the audaceous boldnesse of the offendour.

A sixth meanes producing speciall Enquirie, is Notorietas fa∣cti, vel Euidentia sceleris. 5 1.275 When the matter is so notorious, that by no colour or wrangling it can be concealed, shadowed, or excused; as when the whole people be able to testifie it. For then 6 1.276 (as saieth Saint Augustine) which saying is also repea∣ted in the Canon lawe. Euidentia patrati sceleris non indiget cla∣more accusatoris. What shoulde a Iudge require an Accu∣sers prosecution, where the crime is notoriously and plainely committed? So it is testified els where, 7 1.277 Si crimen ita publicum est,

vt meritò debeat appellari Notorium; in eo casu nec testis, nec accu∣sator est necessarius; cum huiusmodi crimen nulla possit tergiuersa∣tione celari. But this worde Notorium, hath three acceptions in Law. The first is Notorietas vel euidentia facti, whereof we here speake. The second is 1 1.278 publicum vel Notorium per famam. The third is that 2 1.279 Notorium, or (as others read it in the feminine gen∣der) Notoria, which is a relation or a presentment vnto a Iudge of some crime. And so it is taken in those words of the Ciuil law, 3 1.280 Nuntiatores notorijs suis assistere iubentur. Presenters, viz. vo∣luntarie relatours and not Officers thereunto specially appointed (except their Calumniation be manifest and apparant, as the best writers doe interpret) must make good and iustifie that which they present. And againe, 4 1.281 Verùm si falsis necne Notorijs insimu∣latus sit, perpenso iudicio dispici debet.

Now the second of these two Notoria doeth open sufficient way to special Enquirie: but the first 5 1.282 serueth not onely hereun∣to, but euen to the conuiction also of such Notorious offender. Yet before the party may vpon such Notorietie be pronoun∣ced conuicted; it is required, 6 1.283 that this Notorietie be made to ap∣peare iudicially in Actes vnto the Iudge (vnto the speeding whereof, the Defendant also must be called) and not onely by extraiudiciall in∣formation brought vnto him. Vpon which Iudiciall 7 1.284 proceeding had, the Iudge, (before he proceede to sentence of condemna∣tion) must by interlocutorie decree pronounce such a fact to be notorious.

A seuenth meanes seruing to produce first Enquirie in Proces∣su informatiuo, and after in punitiuo is that, which is called inci∣dens cognitio: when vpon examination of one offendour, it fal∣leth out another of his complices to be discouered. For thereup∣on (as it is the common opinion 8 1.285 of writers) the Iudge may ground his further enquirie and taking of Informations; albeit the supposed offendour 9 1.286 be not at first cited thereunto. But this appeachment made by him that is partaker in a crime; is not to be holden so good, as the saying of a witnesse, 10 1.287 but as of a bare Relatour: which yet may giue iust occasion vnto the Iudge to en∣ter into further Enquirie thereof, by taking Informations, as the saying of any other meane or bad person also might, in like case.

An eight meanes to open way, and to occasion the Iudges spe∣ciall

enquirie in processu punitiuo is, Enormitas criminis; the great heinousnesse of some crime. For it is holden, 1 1.288 that euen in strict termes of law, against such a grieuous crime, a Iudge hath pow∣er so to proceede, yea without any fame or Indicia, viz. Euidences iudicially proued and set downe in the Actes of the Court afore.

Ninthly, the Iudge may lawfully descend to speciall enquirie of office, if he shal perceiue the Accuser 2 1.289 to collude with the accused or to goe about to transact, & by secret cōposition, to shut vp the matter betwixt them. So if he which is supposed to be robbed, 3 1.290 will collude with the theefe, and say that he was not robbed: yet if there be likelihood to the contrary, he is not to be beleeued; but the Iudge there∣vpon is to make speciall enquirie; Quia interest reipub. puniri furtum.

A tenth meanes besides presentment, or any of the former, which may iustifie a Iudges proceeding in this behalfe, is when it is growen so farre (without 4 1.291 the defendants alledging) that none infamie, or any of the former meanes lieth against him, as that it is come to some act vsually spedde post litis contestationem, that is, after issue ioyned. For then (by the common 5 1.292 opinion of writers in lawe) it shalbe too late for the defendant to obiect the want of fame, and of other Inducements, &c. So that the procee∣ding (for want of the defendants reclaiming in time) shall stand sound, and shall not be auoyded hereupon, for nullitie or any errour.

The last occasion of a Iudges iustifiable proceeding by enqui∣rie against an offendour without any of the former inducements hitherto spoken of, is: when his proceeding 6 1.293 tendeth to a father∣ly and spirituall correction for the soules health onely: and not vnto any publike, corporall, and exemplarie punishment. So that vpon all, which hath bin spoken in this behalfe, we may conclude in the very contradictorie of this opinion: That a Courte ecclesiasticall (by the lawes both Ciuill and Canon) may many wayes proceede against an offen∣dour, without either Accusa∣tion or Presentment.

CHAP. VIII. That to proceede sometimes against an offence, otherwise then vpon an Accusation or Presētment, or then vpon an Appeale or Endite∣ment (which two at the common lawe haue respectiue correspon∣dence vnto the two former) is no diuerse, much lesse any Contra∣rie or repugnant course to the lawes, statutes, and customes of this Realme. This is proued by common lawe, statutes, and practice in proceeding informatiue and punitiue: with answeres to certaine obiections made to the contrary.

SEeing then that not only by Canon, but also by the Ciuill lawes (within the compasse of which two learnings Accusation and Presentment doe properly fall) there be so many other meanes besides either of them, to open way to a Iudges proceeding against a crime: let it now be consi∣dered, why an ecclesiastical court may not be allowed an ecclesia∣sticall course of proceeding; or whether by the statutes or cōmon law of this Realme, an ecclesiastical Iudge be any way restrained and prohibited to proceede vpō any other groundes besides the one of them two. For if the Common or statute Lawe prohibite this; then are such Canons, &c: thereby in trueth reuersed and voyd, as contrary and repugnant to the Lawes and statutes of this land. But if no such contrarietie, repugnancie, or prohibition shall be found: then will there be no cause, why the proceedings of Iudges ecclesiastical against Crimes, may not (in this behalfe) stil continue, as in all times by-past they haue done.

Notwithstāding there be great diuersities in proceedings eccle∣siastical frō proceedings at the Cōmon law; as in the frame of the Libel; in the answering of it; in the ioyning of issue; in the pro∣duction, examination, & publication of witnesses; in exceptions or chalenges against them, & Corroboratories of them; in the gi∣uing of sentence or Iudgement in writing, and in very many other points besides, too long here to be rehearsed: yet such diuersitie a∣lone notwithstāding (so that the Cōmon law, or statute, do neither contrary nor contradict them) those proceedings shalbe neuerthe∣lesse iustifiable. For by statute 1 1.294 All such Canons, cōstitutions, ordi∣nances, & synodals prouincial, being already made, which be not cōtra∣riant nor repugnant to the lawes, statutes, & customes of this Realme,

nor to the dammage or hurt of the Kings prerogatiue royall; shall now still bee vsed and executed, as they were afore the making of that Acte, &c. So that no Canons establishing proceedings onely diuerse, but Canons contrariant or repugnant to the Lawes, &c. be thereby repealed. Nowe we are taught by the rules of Reason, that two propositions reteyning otherwise the same termes, the one being vniuersally negatiue, and the other vni∣uersally affirmatiue, be contrariant one to another. And though in materia contingenti both such may be false; yet they can ne∣uer be both of them true. Therefore if the one be true, the other of them must needes be false. For example of contraries; the Common Lawe holdeth that All aduowsons or right of patronage may lawfully, and without Simonie, be bought and solde. This pro∣position then being true; the contrary proposition hereunto, which is established by the Canon Lawe: viz. that no right of pa∣tronage may lawfully or without Simonie be bought and solde, must needes be false; and therefore by the Common Lawe, doth stand in this Realme repealed, in respect of this contrarietie.

The word Repugnant in the saide statute (we see) is put after Contrariant, as of a greater force and efficacie: and therefore is to be vnderstoode, according to the common course of our speach, (albeit the Logicians doe not so vse that worde) for the contradictorie opposition; consisting of an vniuersall affirmatiue and a particular negatiue; or of an vniuersall negatiue and particu∣lar affirmatiue. And these be so opposite ex diametro, and doe alwayes so directly thwart one another; that in euery subiect matter whatsoeuer, the one of them being true, the other must needs be false: & è conuerso. As for example; The Canon Lawe holdeth, that All fighting in Duello, that is to say, triall by battaile of one single man against another, is vnlawfull. But the Common Lawe (contradicting this) doth holde, that some triall by battaile (as in a writ of right, and in an Appeale of murder or robberie) is not vnlawful. And againe, the Canon Lawe holdeth, that none aduowsons or right of Patronages may be in grosse. But the Common Lawe is in the flat Contradictorie hereof, that some aduowsons be in grosse, as well as others be appurtenant to a manoure. And there∣fore in neither of those Cases such Canons haue place in this Realme, in respect of this Contradiction and Repugnancie.

If then it may be shewed, that some proceedings of the Com∣mon Lawe against crimes, be also entred into without either Ac∣cusation or Presentment going afore: then where the course of both Courts be not so much as diuers; there cannot possibly be found either Contrarietie or Repugnancie: vnlesse we should say, that the Lawes and statutes doe condemne that, as vnequall and vniust in Courts Ecclesiasticall, which they establish and practise in Temporall Courts for good and iust.

As then an Appeale brought at the Common Lawe, doth most neerely resemble an Accusation in the Ciuil and Common Lawes: so hath enditement a correspondence, and doeth answere vnto their Presentments, being also in statute, often called by the name of Presentment. These two kinds of prosecution of Crimes, at the Common Lawe be mentioned in a statute of K. Henry the fift, in these words: 1 1.295 Diuers men of malice and enmitie, and for gaine, and vengeance, haue often caused to be indited and appealed diuers of our true liege people, of treasons or felonies in the Countie of Lan∣caster; pretending by those Appeales and Inditements, &c. And though these two be the courses of bringing a man in processu punitiuo into trial of matters Capitall: yet for infinite other offen∣ces and crimes not Capitall, the Cōmon Law hath vse of Bils in the Starre-Chamber, and of Informations in the other Courts, at West-minster. Neither of which can be truely called either Present∣ment or Accusation. Not Presentment, because no such peculiar charge of preferring vpon their oathes is layde vpon them, as is vpon Iurors at Enquests, that finde Inditements; or as is vpon Church-wardens and Side-men, who make Presentments. Not Ac∣cusation, because (as is aforeshewed) such Bils and Informations, be both of them put vp, ex officio promoto. Againe, they cannot be called Accusations, because those, who put them vp, are not parties; but the King is the partie. For it is thus said in Statute, 2 1.296 He that will sue for the King to attaint them, that pay or receiue such coyne (as is there forbidden) &c; shall haue the one halfe of the for∣faiture. And after in the same Kings dayes: 3 1.297 He that will sue for the King in this behalfe, shall haue the thirde part of that pecuniarie paine. So that whosoeuer doth preferre or follow them; yet the suite is the Kings, and he the partie; whose also the Court is, where the suite is prosecuted.

It may appeare, that at the Common Lawe, other meanes be∣sides Appeale and Enditements (which respectiuely doe resemble Accusation and Presentment) be receiued to ground a Iudges Enquirie vpon, in Processu informatiuo; whereupon also follow∣eth oftentimes processus punitiuus; that is, the triall of the Offen∣der. As first, by the common custome and practise of the land. For doe not some seuerall Iustices of the Peace, vpon their owne suspicion conceiued, or vpon secret relation of others (whome they credite) send for men by warrant to be apprehended and brought afore them? doe they not take informations sometimes against supposed offenders, vpon depositions of witnesses, be∣fore the partie be sent for? Doe they not also without any such witnesses, often-times examine the partie himselfe, and (accor∣ding to their discretion) binde him to the Peace, or to his good behauiour: or perhaps send him to the common gaole to be im∣prisoned? Doe they not receiue and sometimes preferre and procure enditements to be found (as of common Barattarie and such like Crimes) vpon their owne onely suspicions, or by infor∣mation of some one other (perhaps an enemie) and vpon other as meane presumptions? Are not sundrie persons trauelling through some towne, or founde in some priuie searche lodging there (with good reason) oftentimes brought to a straite exami∣nation and enquirie of matters Criminall; vpon the onely view of their persons and deportment, without all further intelligence or cause of suspicion? Yet be all these without Appeale or endite∣ment; and many times vpon as light and perhaps lighter suspici∣ons, and informations lesse likely and credible, then any be ad∣mitted (in like case) by the Commissioners ecclesiasticall; and much lesse by Ordinaries, who must (in case an Appellation be brought) in a more strict course of Lawe, be able soundly to iustifie the in∣ducements, that they had to leade them into those criminall que∣stions and enquiries. Yet vpon these grounds alone, not onely the apprehension of the parties, their examinations personall, and the taking of informations from others against them, is founded: but also (as often falleth out) other penalties and disgraces be in∣flicted; as binding to the Peace, or to their good behauiour, ma∣king them to answere enditements of Barattarie, or such like; im∣prisonment of them by a good space, sometimes till the next

Sessions or generall Assises; and sometime extending discretion euen to condemne men to be whipped publickely vpon the sin∣gle Denunciation of a woman being infamous, and partie in the pretended Crime: one who is as easie to be suborned to speake and charge a man falsely, as to deale lewdly; and whose testi∣monie (though it were not singular) is of no weight and credite. Much lesse therefore (being but one) ought she to be taken for sufficient to condemne any, flat contrary to Gods owne Morall Lawe.

I haue also knowen Articles put vp against a good Minister and Preacher, to haue bene reiected in respect of their insufficien∣cie, by the Commission ecclesiasticall. Yet the same Articles (being preferred euen by his aduersarie, but assisted with some of coun∣tenance in the Countrey) haue afterwards serued to haue an En∣ditement found against him, to be a Common Barattour: yea by those and before those, who perhaps might all of them be appo∣sed, to tell directly, what Barattaria truely signifieth and impor∣teth; and whence it is deriued.

Likewise doe we not see, that vpon the like grounds to some of these, a man may be touched with great disgrace and discre∣dite; and that not vniustly? As when some great and potent man in a Countrey (against whom fewe or none there abouts dare openly deale) is put out of all Commissions and publicke charge in his Countrey, vpon priuate (yet credible) information giuen to some of the great officers of the Kingdome, touching his oppression, or other ill demeanour of himselfe?

Doe not the like grounds of Suspicion, of priuate Complaint and Information exhibited vnto them, iustly and sufficiently (of∣ten times) mooue and warrant the Lords of the Counsell, to call some great malefactours into question, and to deteine them, till they be acquited or condemned by due triall?

Besides this vsuall practise, doe not the very Lawes of the land allow of these and like inducements to take informations, and to enquire into matters Criminall? 1 1.298 For in an Action of false imprisonment, it is a good plea for the defendant to shewe the fe∣lonie, and to pleade that he tooke the plaintife for suspicion of such felonie: per Frowick. And why then, may not three or moe of the Queenes Commissioners ecclesiasticall, be in reason as deepely

trusted vpon their suspicions (though in trueth they vse it not in this sort) as some one single Iustice of Peace may be, vpon his owne onely suspicion? And is it not 〈◊〉〈◊〉 •…•…ikely, that they will haue as good ground of their suspicion, as he hath of his; and as much care of Iustice and of their owne credite?

In an old 1 1.299 statute we finde, that Notoriousnes of a facte, an euill name of a man, yea and light suspicion also of Felonie, may any of them serue, to imprison a man. Albeit in the two first cases such a person is by that statute appointed to endure hard and strong im∣prisonment: yet aske whether in the originall Rolles, this statute doe speake of imprisoning; or else of strong and hard poenance, which such be appointed to suffer, that refuse to be iustified by the Common lawe of the land.

And as these and like inducements doe serue to ground the processe informatiue: so doe they no lesse, euen in Processe punitiue, when the enquirie and examination is to punish the offender. For if any the Iudges at Westminster or of Assises, haue iust occa∣sion of suspicion ministred of a misdemeanour to be committed by some belonging to that Court, touching matters of their Courts and present iurisdiction: may they not, and is it not vsu∣all with them, euen hereupon onely, without any enditement or other prosecution of partie, to call such supposed offender vnto examination before them, to the effect of punishing him, according as the qualitie of the facte shall fall out to require?

In the time of King Henry the seuenth it was prouided by 2 1.300 Par∣liament, for suppressing of Retainours; That two Iustices (where∣of one to be of the Quorum) might call all such persons, as they shall thinke to be suspected of any Retaynour, and them to examine of all such Retaynours by their discretion: and their certificate into the K. Benche against all of them so examined, and by that examination found in default, to be against them as a conuiction: and their certi∣ficate of any persons by that examination accused to be Retainours, to be of like effect and strength against them, as an Enditement.

By the same it was also 3 1.301 enacted, that such Iustices (as afore) or the Lord Chaunceller, or Lord Keeper, or three of the Kings Coun∣sell attending him, shoulde haue full power and auctoritte without any sute or information made or put before them or any of them, to sende for by Writte, Sub poena, Priuie seale, Warrant, or otherwise

by their discretion, for any person so offending; and the same person to examine by othe or otherwise by their discretion: and to adiudge such as should bee founde guiltie by verdict, confession, examina∣tion, proues, or otherwise, in the forfeitures and paines, as though they were condemned after the course of the Common lawe, &c. So that it was thought then by the whole state of the Realme, none vn∣iust course (no not in a Temporall Court) for Magistrates to call some offenders into question criminall, whom they did but thinke to be suspected, and to condemne them without either Endite∣ment, Appeale, suite, or Information made.

By a Statute made in her Maiesties time it is enacted; 1 1.302 That if any man be in prison for supposed speaking in behalfe of forreigne Supremacie, and happen not to be endited within one halfe yeere of the offence committed; that then he shall be set at libertie. Where∣by appeareth, that a man may happen to be brought into Que∣stion criminall, and to be in prison also (which is an Attachment, and some punishment) without any Enditement or Appeale precedent.

The statute for 2 1.303 Uniformitie in Common prayer, mentioneth three meanes of Conuiction by the course of the Temporall lawe: viz. Verdict of twelue men; the parties confession; and the notorious euidence of the facte. If then the Notorious euidence of the fact without Appeale or Enditement, Verdict, or Confession, may (at that Lawe) serue for a Conuiction: may it not with as good iustice, and equitie serue for the same purpose, at the Ecclesiastical lawe, without either Accusation or Presentment?

If here it be said by any, that though such practise of Tempo∣rall Iudges be lawfull, and the Lawes and Statutes be iust in this behalfe; yet perhaps the Common Lawe will not giue so large a scope vnto Iudges ecclesiasticall: against such doubters I will ob∣iect those wordes of 3 1.304 Magna Charta, where it is not a newe graunted, but Confirmed onely, That for euermore the Church of England shalbe free, and shall haue all her whole rights and liberties inuiolable. And this is a confirmation of their rights and liber∣ties, before any graunt was made to the rest of the Realme be∣sides: being yeelded at such time, when as (through generall ig∣norance) it was vntruly holden, that the state Ecclesiasticall (signified there by those wordes, The Church of England) had

not their Iurisdictions from the Prince, but from God alone, de∣riued downe to them by the meanes of the Pope: and therefore that their Courtes and Lawes, (whereby they proceeded) were not in any respect to be accounted for Courts holden by the Kings auctoritie, or their Lawes the Kings Lawes. Whereupon arose that vntrue and preiudiciall phrase of seuerance of a Court Chri∣stian, from the Kings Court. So that if they were confirmed to them, when their Iurisdictions (in facte) were not holden of the King, as now they be, and ought to be by Gods Lawe: is there not then more iust cause so to continue them at this time; seeing they be not so much as a diuerse course from the Customes and Lawes of the Realme in Courts Temporall?

But that this course of proceeding in causes Criminall, some∣times without either Accusation or Presentment, is in trueth a right and libertie of the Church of England, may appeare by that, which to this point hath bene afore deliuered; and by the continuall practise also of those Courts, in all ages: as the Acts thereof from time to time doe make very manifest.

Yet, this is more particularly and neerely prooued, in the very point that we handle, by a 1 1.305 statute made in her Maiesties reigne; where it is prouided, that Ordinaries not only at any other time and place, then at their visitations and Synods may take accusations and informations (a word of farre more large signification, then Pre∣sentment:) but may also enquire else-where within their iurisdiction. Which Enquirie is afore shewed to be alwayes ex Officio; and (being absolutely spoken without further addition, and in some sort seuered from all ki•…•…de of Informations) must necessarily be without Presentment.

But how farre and in what maner may they so doe? Truely in like fourme as heretofore hath bene vsed in like cases, by the Queenes ecclesiastical Lawes. If then to proceed Criminally with∣out either of them two, be warranted & practised by the Queenes ecclesiasticall Lawes (as afore is shewed) assuredly this Statute doth auouche and iustifie them.

To this disputation may be referred that obiection, which the Notegatherer maketh touching a 2 1.306 statute of K. Henry the seuenth; * 1.307 whereupon (he saith) Empson and Dudley proceeded, that was 3 1.308 repealed by another in the time of K. Henry the eight; although

he putteth it vnder his title of the lawes of England, as by them seeking to impugne al proceeding ex officio; albeit vnder present∣ment (which this opinion alloweth) proceeding ex Officio, is necessarily implied, and presupposed.

For answere whereof; it is true, that the saide statute was so repealed: but whether it were the same and the onely statute, whereupon Empson and Dudley proceeded, is left there vncer∣taine and vntouched. Howsoeuer it was in this behalfe, seeing it authorised all Iustices of Assise and of the Peace, to proceede thereby; it is most probable, that many besides them two, did also deale by vertue thereof.

The effect of the saide statute was, that vpon information to be made for the King afore Iustices vpō any penal statute not extending to life or member, they might (without enditement) heare and deter∣mine all offences against the forme of any statute in force.

The reason of making the said statute, is signified by the pre∣amble to haue bin; for that, although at Sessions charge was giuen to enquire of many offences against statutes; and Enquests to that ef∣fect were straightly sworne and charged to enquire and to preferre the trueth: yet they were letted to be found by imbracerie, maintenance, corruption, and fauour; by occasion whereof the statutes coulde not be put in due execution. And againe in the same place: The twelue men, for the causes afore rehearsed, will not finde, nor present the trueth. Howesoeuer this were at that time, it may bee feared, that it is in some place too true still, euen vntill this day. So that if this were then a sufficient cause to make such a statute; the cause still continuing, if not encreasing; that statute will seeme to haue beene (in that regarde) lesse vnreasonable.

In the statute of Repeale thereof, for the reason of abrogating * 1.309 it, is onely assigned; That thereby many sinister, craftie, feigned, and forged informations haue beene pursued, to the great damage and wrongfull vexation of the subiectes. But this might aswell happen, euen when men be prosecuted by way of enditement. For is it not vsuall to finde them vpon any one mans euidence and information, the Iurie not regarding (oftentimes) what enimitie rests betwixt them? Therefore it was not the course by information that displeased; but the badnes of the informations

that gaue occasion of repeale. For by statute, euen in K. Hen. 8. * 1.310 his dayes, an Information was made equiualent vnto a presentment by verdict of twelue, in matter of heresie, that is far more penal, then the former. Which cruell statute I would not haue alledged, but that the Note-gatherer groundeth himselfe thereupon, for ano∣ther purpose.

And we see, that there is no such cause alledged, as the Note∣gatherer insinuateth; either as if it were an vniust & vnreasonable course, or in respect that it was ex officio, at the instigation and so∣licitation of some one person; or yet, that it was without Appeale or Enditement. For if it had bin simply vniust; then all the treasure which had bin leuied by colour thereof, should haue bin resto∣red. And it is euident, that Bils and Informations against offenders, are still in frequent vse, and may be preferred for the Queene by any, and against any, whomseuer. And those which be found of∣fenders, may (without either Appeale or Enditement) be condem∣ned and punished thereupon in sundry geat penalties and losses both pecuniarie, corporall, and of their good name and credite.

And for further proofe, that it is at this day holden none vn∣iustice by the tempor all lawes for to ground an enquirie, yea, and also a Conuiction without either Appeale or enditement, is plainely prooued by a latter statute, which is yet in force. For Iustices of * 1.311 Peace at their Sessions haue authoritie to enquire of the offences of them, which be admitted to keepe Ale-houses, not onely by Present∣ment, but by Information, or otherwise by their discretion &c. and may heare and determine the same by all such wayes and meanes, as by their discretion shall be thought good. And a litle after it is there enacted; that the Certificate of the Iustices touching euery such Recognisance and offence, shall be a sufficient conuiction in the lawe of such offence. So that for this one kinde of offence, as much is established by this statute, as was for sundry others, by the aforesaid repealed Acte. And therefore it is no course of proceeding condemned as simplie vniust; howsoeuer the fa∣mous King Henrie the eight, was willing at the very entrance of his reigne, to gratifie his subiectes by that Repeale.

Another obiection in this behalfe is taken out of the preamble of the repealed statute for heresie, made in the time of the afore∣said king Henrie the 8. the wordes are these: viz. It standeth not * 1.312

with the right order of Iustice, nor good equitie, that any person should be conuict, and put to the losse of his life, good name, or goods; vnlesse it were by due accusation and witnesse, or by presentment, verdict, confession, or processe of outlawrie. Which wordes (you see) doe speake of conuiction, and of being put to losse of one of those three, and not of the calling into question and maner of pro∣ceeding. This doeth appeare, in that to the worde Accusation is ioyned Witnesse, with a copulatiue: whereas the opinion (whereof we treate) implieth, that either vpon any Accusation or yet vpon Presentment (without any more adoe) an Ordinary may grounde his further proceeding. But a man may not be conuicted in a Court Ecclesiasticall, either vpon a bare Accusa∣tion or Presentment without witnesses, or his owne confession: to which (I thinke) may well and with good reason be added, wil∣full contumacte, and not presumed onely; which contumacie both in Ecclesiasticall Courtes, and some others of this Realme, a∣mounteth to as much (in construction of lawe) as a confession: and it hath a correspondence vnto an Outlawrie, that is a kind of conuiction, at the Common lawe, grounded vpon wilfulnesse onely presumed.

Moreouer, this preamble doth not rest in the two wordes of Accusation or Presentment, being the onely things required (by this opinion) to warrant proceeding Ecclesiasticall; but addeth also witnesse, verdict, confession, or processe of outlawrie: and there∣fore cannot (by any meanes) be referred vnto enducements, to ground proceedings vpon, but onely vnto meanes of conuiction: and the rather, because in that whole sentence, no verbe passiue is vsed, but conuicting and putting to losse, &c. which maketh me the more to maruell, how the word Presentment, with a disiunctiue, came in amongst the rest: as if by a Presentment alone, a man might be conuicted, or put to losse of any of these three.

Some other wordes following in the same preamble, are also * 1.313 brought for this purpose, viz. wherefore it is not reasonable, that any Ordinarie, by any suspicion conceiued of his owne fant asie with∣out due Accusation or Presentment, shoulde put any subiect of this Realme, in the infamie and slaunder of heresie, to the perill of losse of life, losse of name and goods. These wordes are inferred vpon the former, and are directed vnto none other crime but Heresie,

where the perill and penaltie is so grieuous, as losse of life, losse of name and goods, ioyntly together; & therefore can by no reason be drawne & stretched vnto euery other crime ecclesiastical, where no such perill of penaltie, or of punishment resteth. For wordes of statutes are of strict interpretation, and are most strict in mat∣ters criminall and penall, and therefore may not be extended vn∣to other crimes, then are expressely mentioned; yea though there were (in both) a like reason. Whereas (in trueth) betwixt the punishment of Heresie, Atheisme or Apostacie, and other crimes ecclesiastical, there is as great dissimilitude as may be. For death in those three is not inflicted, but when all hope of amendement and reformation of the partie himselfe is past, and he is therefore taken away by death, to the intent others may be terrified by the example, and that he haue none opportunitie to entise any moe to his heresies, or to continue in his blasphemies against God. But in the correcting of all other crimes ecclesiasticall (though secondarily sometimes the terrour of others is sought) yet principally the parties owne reformation, and bringing vnto penitency and amendement, is intended. For hereby he sustai∣neth no losse at all, not so much as of his good name, but rather a gaine; because after his reformation and repentance, he ought to be (of al Christians) holden as deare and precious in Gods sight, * 1.314 as if by falling into the sinne, his credite had neuer bin impaired. In which respect those Canonicall penances were by the fathers of the Church, and by the olde and pure Canons said to be medicinae animae, rather then poenae: yet not as satisfactorie for the sinne, but as good inducements vnto, and also testimonies of repentance.

And you knowe, how absurd a kind of reasoning it is, either to argue from one thing to another à dissimilibus: or to reason from that which is more likely to be, vnto that which is much lesse likely (viz. à maiori ad minus) affirmatiuely, as must needes be out of this place: for thus their obiection must bee gathered: Without accusation or presentment of heresie; none shalbe put in perill of losse of life, losse of name, and goods: therefore without the one of these two, an Ordinarie may not proceede to the punishment of any other lesse offence ecclesiasticall. Yea though no one of these three, and much lesse all of them be any way thereby hazarded, or brought into perill.

Furthermore in these last recited wordes there lieth a plaine op∣position, betwixt any suspicion conceiued of the Ordinaries owne fantasie: and a due accusation or Presentment. Therefore, if sound and credible information, notice, euidence, or other sufficient matter may appeare to be brought vnto him, so that hee cannot be sayd suspiciouslie to conceiue it of his owne fantasie onely, then the true intent hereof is thereby satisfied. But shall the Preamble of this repealed Statute stand for sound authoritie, and shall not the equitie and reason of the very bodie of the Statute it selfe, 11. H. 7. though afterward repealed (much rather then a Preamble) be receiued for a good argument; proouing that it is neither vniust nor vnreasonable, at some times to ground a Iudges proceeding criminall, without either Appeale or Inditement?

Lastlie, here seemeth a due accusation or els a due Present∣ment of Heresie, in reason and equitie to bee required: but it is not here, neither (as I take it) else-where by the lawes of the Realme determined, what may bee accounted a due accusa∣tion or a due Presentment of a crime in an Ecclesiasticall court. Then (as I construe the lawe) must it bee left vnto the lawe ec∣clesiasticall to determine, when these may bee sayd to bee due∣lie done, either preciselie, or by that which is aequiualent vnto them.

And so we may conclude, that to proceed in an Ecclesiasti∣call Court agaynst a crime, otherwise then either by Accusati∣on or such Presentment, is not contrary or repugnant vn∣to the lawes of the Realme, but rather the like course often practised by them: and thereby the Iu∣stice & equitie of such proceeding more stronglie confirmed and iustified vnto vs, and the contrarie opinion quite ouer∣throwen.

CHAP. IX. The second opinion (here to be treated of) is, that No laie person may be cited of Office in any cause, but Testamentarie or Matrimoniall: the drift of that opinion is against proceeding of Office in matters criminall: the necessarie vse and equitie of proceeding criminallie, sometimes by the Iudges office, in courtes both temporall and ecclesiasticall.

THe very drift of the second opinion (that com∣meth here to be disputed of) is; that a Iudge ec∣clesiasticall may not proceed at all of Office, or make speciall Enquirie, (which is the effect pro∣duced by that cause) against any crimes or offen∣ces of late persons. For in debarring them frō Ci∣ting any such, the very whole proceeding against them (vnto which that is the introduction) is thereby also debarred: and by restraining their citing of Office vnto causes onely Testamentarie or Matrimoniall, all dealing against Crimes (without there be an Accuser) is thereby taken away. Which second opinion therfore quite ouerthroweth the presenting of any laie persons (though cri∣minous) allowed by the generalitie of the next precedent opini∣on; insomuch as vpon Presentments, followeth proceeding of Of∣fice by Enquirie; and yet both these opinions had one Author. So well bee these mens conceits digested. But let vs first examine what may be the colourable occasion of this second opinion, o∣uer and aboue the impounding of all ecclesiastical proceeding vn∣to those two heads (spoken of in the first part) sauing where the partie conuented himselfe is willing. Which willingnesse in the partie for rights that may be supposed to be by him deteined; but especially for crimes supposed by him to bee committed, can ne∣uer with any reason be intended, that it shall bee obtained at his hands (considering there is so small vse of any proceeding by office, but against crimes; and least of all in causes Matrimoniall or Testamentarie.

That no laie persons then should be delt with at all, for such crimes, as I haue before prooued to bee of ecclesiasticall cogni∣sance; but be suffred to do them without controlment: I thinke (in charitie) not to be their meaning. It must needs then follow, that it is the proceeding against crimes ex officio Iudicis, viz. with∣out

an Accuser, which is hereby principallie condemned, as vn∣reasonable or vniust.

Therefore to prooue it reasonable; I mind here (somewhat fur∣ther) to shew the necessarie vse & equitie thereof, as well in the one court as in the other. And to cleare it from vniustice; I wil de∣clare first, that it is both practised by the temporall lawes, & also is by common and statute law, an allowed proceeding vnto courtes ecclesiastical: next, that it is practised not onely by the law Canon (which many would take for a sufficient disallowance of it:) but also by the Ciuill lawes, subiect to no such exception; insomuch as they are vsed by the rest of Christendome for their Common law, by the grounds whereof, all their customarie lawes & ordi∣nances be argued & disputed. And lastly, that such course of pro∣ceeding was vsed & is allowed by sundry exāples in holy Scrip∣ture: together with answeres vnto the obiections made to the contrary, as they fall fittest into each of the seuerall parts of this disputation.

The equitie and necessarie vse of this course to bee holden, may be shewed by the partie, which (by lawe) is supposed to be the exciter & stirrer vp of a Iudge vnto it, whē none other person is found that wil prosecute. This partie I meane, is the 1 1.315 publike in∣terest which the Church or Commō welth hath, to haue crimes punished: Interest Reip. prouinciā purgari malis hominibus: & ne ma∣leficia remaneant impunita: poena enim vnius, terror est multorū. Bo∣nis nocet, qui malis parcit. Sicut est misericordia puniēs, sic est crudeli∣tas parcens: w^t sundry other like rules of law & Canon, partly afore touched. Now the publike interest doth not only rest in this, when some benefite is comming towards the common treasure, but is chieflie shewed by procuring common tranquillitie and repose of the subiect; with sinceritie of religion, and integritie of con∣uersation. And it was called by the Romanes (especially after the popular state was turned into a monarchie) by the name of Fiscus: and may well and significantly with vs (in respect of the mea∣ning) be termed, the interest of the crowne & dignitie royall, which by all offences are sayd to be violated. Therefore doe the 2 1.316 Ciui∣lians of other nations say, In quocun{que} crimine fiscus est accusator: against euery crime the benefit of the Common-wealth is an accuser. And another 3 1.317 saieth, that in what crime soeuer a Iudge may proceed

of office, there Fiscus, the common benefite stands in stead of a Partie. And it is testified to bee a 1 1.318 common rule, that euen in an offence but against a priuate person principally, the iudge oftentimes is of of∣fice to proceed to the inflicting of some penaltie not expreslie set downe in lawe, against such an offence (for so is poena extraordinaria ment in the Ciuill lawe) by reason of the very interest the Common wealth hath, to haue misdemeanors punished. In which 2 1.319 respect some mā that by law may not vse action, yet is not forbidden implorare officium Iu∣dicis, to stirre vp the Iudge (by petition) to proceed for his owne office and duties sake.

If her Maiesties most honourable councell together, and eue∣rie one apart; if the Iudges of the land; if carefull and vpright gentlemen of the Commission of Peace in euery countrey; of of∣fice, and for their dueties sake (for the most part) without any so much as priuate complaint (much lesse professed Accuser or Par∣tie) but perhaps vpon some generall muttering; yea and some∣times without so much, for a care and vpon a feare (at large) onely conceiued, what may happen: did not, or should not en∣quire, looke into, and take informations of riots, violences, di∣sturbances of peace, conspiracies, felonies, murders, and of o∣ther misdemeanors and outrages, and so seeke further to disco∣uer them, and to punish them, or bring them to Iustice; might it not iustly be feared, that the realme would much more abound, and ouerflow in all kinde of mischiefe? Would the Constables abroad, Headboroughs, Bursholders; and such other inferior of∣ficers and ministers of themselues preferre such vp, or being found out and presented by others; would they effectually folow and prosecute them as appertaineth, so that the magistrates need not to take further care? I thinke it will not be so supposed. The like then may be sayd of Ecclesiasticall officers and offences, notwithstanding all generall Enquiries in Senes or Synodes, and in visitations.

But it will perhaps be sayd; in the one Court, they may bee presented by the sworne men, and in the other by enditement of the grand Iurie, at Sessions and Assises, &c. It is true, they may be; but how many, I pray you, are so found out, and endited (from time to time) by the grand Iuries of their own enquiries & know∣ledges: if either some partie (grieued in particular) doe not

giue euidence; or the Iudges or Iustices of themselues do not in∣forme them, and vrge them; notwithstanding the straitnesse of their charge and oath, and that they be taken out of the seuerall parts of euery shire? But be it, that some notorious murtherer or felon, is soby them endited at some times: how many other offenders in penall statutes (being men of any reckoning in the shire) are endited at all, thorowout the Realme, in many yeeres, if none of the bench do take care to vrge the Iuries? as Recusants in comming to diuine seruice, such as haue and keepe Reteiners, and giue liueries contrary to statute, onely to band in quarrels, and to mainteine bad actions; or yet such as goe excessiuely in apparell, or which violate the statutes appointed for not eating flesh, vpon certeine dayes. Nay, it falleth out often times, that the more to giue edge to such Iuries to do their duties, euidence hath bene giuen vnto them in these offences: yea, such and so good, as vpon lesse euidence, they would perhaps haue endited a man of felonie, to the hazzard of his life, especially if he were but some base fellow. Now, when none almost will be found to giue euidence (sauing in such a cause where he findes himselfe or some of his pinched) yea, and not in such neither, if the other partie be a man of any tolerable reckoning or ability; and very few (albeit themselues do perfectly know it, or haue reasonable good euidence giuen, against some man of power) that will finde an enditement against such an one, although both he that giueth the euidence secretly, and all the Iurie may be in some hope, not to be knowen, who it was that did principally stirre in it, because they be sworne to keepe the Queenes counsell, their fellowes, and their owne: can it then with reason be ima∣gined, that any man (almost) will be found voluntarily to be∣come an Accuser, and to prosecute at his owne costs and char∣ges? Experience teacheth that most men will not, few that dare, and those onely such, as take themselues in some particu∣lar respect, wronged.

We see in a great multitude of penall statutes at the Common law, how men by third parts and moities of forfeitures (besides great priuileges in proceeding) are as it were allured and enti∣sed to informe against offenders: yet very few (notwithstan∣ding such great gaine as thereby might be got) are found (be∣sides

such as make an occupation of it) that will voluntarily pre∣ferre informations: albeit there be enow that want the money, and could well be content to finger it, out of what male factours purse soeuer it came.

The reasons of this backwardnesse in informing, I take to be the charge, trouble, common obloquie, and offence taken by them that be prosecuted, and thereby feare and perill to come vn∣to some further mischiefe vpon their procurement, or for their fauour. Now, where men that are so well hired, and (by reason the Queene is partie to such informations) so fully in all reason protected, will not, lust not, or dare not preferre matter penall against others: shall wee looke for better courage to be shew∣ed by priuate persons, against offenders in Ecclesiasticall crimes; where they can expect no such countenance nor remunerati∣on, to lighten the other burthens and dangers? and therefore either of Office to be prosecuted, or must be wholly left vnpu∣nished.

In riots committed and done vpon others, we see iust cause of griefe for the iniury receiued: and thereby occasion giuen to seeke lawfull reuenge. There was good remedy also prouided for them at the Common law. Yet in the time of king Henrie the seuenth, for a further remedie and repressing of them by the Lords of the Starre-chamber, the State was driuen, to make a sta∣tute. By authority whereof their Lordships proceed in that and others ex officio, albeit (in many causes) they haue some partie grieued, that by way of complaint promoteth and prosecuteth the office. Yet the proceeding is (as was touched afore) by way of enquirie; in that no man (there) sueth for priuate recompense; but the scope of the whole processe is criminall, & ad vindictam publicam, vel corporalem vel pecuniariam, applicand•…•…m fisco, non parti. So that where men haue •…•…ust cause of griefe, yet was it thought very expedient & requisite, to prouide a sharper course by way of enquirie of office. How much more then is this course needfull to be holden, for punishing Ecclesiasticall crimes, which (by the policy of this Realme) haue no other punishment: and where no man hath (for the most part) any priuate iniury, wher∣vpon to complaine himselfe?

Here perhaps it will be said, that he which can giue informa∣tion

of a crime to a iudge; may accuse, or procure a presentment in an Eccelesiasticall Court (if it be of that iurisdiction) or may informe and procure an enditement, if the cause be Temporall: or els that it were meet his information be not beleeued, but that he should be holden as a slanderer and a malicious person. We are to remember, that if this Dilemma (viz. either thou must accuse and prosecute him, &c. or else thou art but a slande∣rer) had not quiddam tertium to minister answere vnto it; many grieuous faults should passe vnpunished, and many poore men should be sore pinched. For experience teacheth, that 1 1.320 often times euen in crimes publikly committed, you shall hardly finde wit∣nesses, that will depose their direct knowledge, when it tendeth to the offence of some man of countenance, that may do them a displeasure after. And therefore they will either say, they saw it not, heard it not, marked it not, or at that time remember it not. Yet it is knowen, that a witnesse is vrged by the religion of an oath, and is not entended to thrust himselfe into the matter willingly: which as it ought to serue to take away all offence conceiued by him whom he toucheth; so ought it to wash away all feare and other affection, in the witnesse.

Then how much more probably may it be supposed, that there is many a meane man, (though otherwise able to giue good and true information, perhaps of three or foure witnesses, which doe know the matter more fully, and touching other par∣ticularities, sufficient for a Iudge to enquire, and to looke into the partie so denounced) who neuerthelesse in many respectes dare not become an open Accuser, or a preferrer of presentment, of enditement, or of information? because there is more cause to take offence at such, then at one, who is called and vrged to te∣stifie. So that if there were no meanes for a Iudge Ecclesiasticall to take knowledge, nor to proceed, but vpon the voluntarie prosecution and accusation of some partie, (which is the course opposite vnto proceeding ex officio) then surely many execrable offences that are most displeasing to Almightie God, offensiue to the godly, dangerous to mens inheritances, and to the offen∣ders owne soules health; yea and some that be pernicious banes to all religion, vnto professing of God, and to Christianitie it selfe, were like (through want of discouerie and impunitie)

to spread themselues ouer both Church and Common-wealth in very short time, before Accusers would be found: Namely, Atheisme, Apostasie from Christianitie, Heresie, Idolatrie, Schisme, Errour in matter of Religion, Sacrilege, Periurie Ecelesi∣asticall, Blasphemie, Subornation of periurie aswell in matters of ma∣riage and testament (being of speciall consequence) as in others; Hor∣rible swearing, Polygamy or many wiues, Incest, Adulterie, and o∣ther vncleannesse, Drunkennesse, excessiue Vsurie, Simonie, Forge∣ries of Ecclesiasticall seales for testimonie, Vsurpation of the holy Ministerie, dangerous Conuenticles, vngodly libelling, and such like.

For who are commonly made priuie to such sinnes, but men of like humour and affection? in whom we may not presuppose such sinceritie of conscience, that for reformation of the partie delinquent, they will abandon all friendship, and aduenture any displeasure; euen but to take a triall (with their great charge and trouble) howe they shall be able to make proofe of such matters against them.

Besides these inconueniences, that otherwise would ensue; there be many others, all which (in particularitie) to rehearse, would be ouer tedious. As after an accusation be begun, & that the Iudge seeth violent presumptions against the partie conuen∣ted: if the prosecutour for feare, for tediousnesse, for bribes, or by collusion would desist: were it not meet that the Iudge, of of∣fice should neuerthelesse proceed by enquirie; that the delin∣quent may reape, as he hath deserued? is it not meet that a Iudge should be more carefull of the publike good of the Common-weale, then euery common person? and if he be so in deede, shall he not be allowed as good meanes to doe these good offices to his Prince and Countrey, as any priuate person? And shall he not be as much cherished and allowed vpon his owne care, and for his dueties sake, to procure the suppressing of sinne and re∣formation of offenders, as to do it, at the instigation of any pri∣uate partie? Nay is there not lesse danger of suborning, corrup∣ting, or instructing of witnesses by a Iudge (who hath no pri∣uate interest to see a man punished) then there is in the prosecu∣tion by a partie; who (for the most part) doth it but of malice, or vpon some other sinister respect? And what if any that is in deed a friend, should be 1 1.321 purposely framed to be an Accuser;

to the intent some delinquent may escape, and not be called a∣gaine into perill, vpon the same crime? If it be saide hereunto, that the penaltie of calumniation, viz. poena taltonis which is to be inflicted vpon him that faileth in proofe of his accusation, will take away this suspicion; it may be replied, that in most coun∣tries, this poenatalionis is growen in disuse: but chiefely this may be answered (euen where that penaltie still hath place) that the Accuser may make halfe a good proofe (as by one vpright wit∣nesse) and 1 1.322 so should both the delinquent escape punishment; and himselfe also (by lawe) be freed from danger of the penaltie of calumniation presumed, and of enduring retaliatio.

Besides, the like equitie may also often happen, when onely two sufficient witnesses can testifie of a crime: for if the one of these should be driuen (of necessitie) to be a partie, then the full proofes (required in such cases) were thereby cleare taken away; and so the offendour should escape punishment. And therefore there is both necessary vse, and good equitie, to warrant procee∣ding ex Officio, in matters criminall.

CHAP. X. An answere to some further obiections made against the conue∣niencie and reasonablenesse of proceeding against crimes of Office.

TO crosse the necessarie practice of proceeding by Office, 1 1.323 the Note-gatherer assigneth sundry inconueniences by him surmised to arise thereof. First, (saith he) In treason and felonie chalenge is admitted to the Accuser: here none. For it is in the Ordinarie to admit one to infourme, and to wit∣nesse againe in the cause, wherein he was before deposed, to the con∣trary. What these last wordes, viz. to the contrarie, doe serue for here; neither I, nor perhaps the Author himselfe of the Notes, can coniecture. If Acouser here be taken for a witnesse (as is afore shewed:) then I must tell him, that challenges and exceptions a∣gainst witnesses not onely be allowed vnto the defendant at the lawe Ciuill and Ecclesiasticall; but in a farre more beneficiall man∣ner, then is receiued by vse at the Common lawe of this Realme. For it is commonly said (howe truely I am not to discusse) that a

witnesse ought not to be receiued nor deposed vpon his oathe for the prisoner, as being against the Queene. And if such be per∣mitted to speake at the prisoners request (as some seldome times hath bin) and be not sworne thereunto: what credite will the Iurie giue vnto his bare wordes? nay what credite may they giue to them, and saue their owne oathes; who are sworne to dealc according to their Euidence; which cānot be so termed, except it be vpō oath, vpon matter of record, or vpō the parties cōfession.

But if he take Accuser here, for him that voluntarily prosecu∣teth and soliciteth the office; then he may remember, that against such, the very Cōmon lawe giueth no challenge; because any man may preferre Enditements & follow them for the Queene: where∣as the Ciuil law hath whole titles of chalenges that may be made against Accusers; which lawes be also retained in those Courtes, against all voluntarie preferrers to the office, who are holden as parties. But if the Iudge alone at the Common law cause an Endite∣ment to be put vp; may the prisoner challenge the Iudge, when as he shall not challenge any common person, which doth it?

That is true in part, which he saith, that in 1 1.324 enquirie of office, a Iudge (by the Ciuill lawe) may examine him which denounced the matter, as a witnesse therein. Yet it is not generall in euery denoun∣ceour or preferrer vp vnto the office, but onely in such as be officers specially appointed, & sworne for that purpose. Now what wāt of equitie, or what iniustice is herein, seeing perhaps such know∣eth the matter best, & was the man that infourmed his fellowes of his particular knowledge therein, which made it to be presē∣ted? May not one single man in a graund Iurie doe the like? And what should hinder such a man afterward to giue also particular euidence therof at time of the triall? For is there any course more vsuall, then for him that preferres vp the enditement, & giues eui∣dence to haue it found; to be also a witnesse, & to giue euidence of the very felonie, &c. at the prisoners triall for life and death?

But if it were true, that euery Infourmer & prosecutour might be examined also as a witnesse (which is very vntrue both by lawe and practice) howe could this proue, that which he aduou∣cheth; viz. that no challenge against the Accuser is admitted in Courtes Ciuill and Ecclesiasticall, seeing both against prosecutors and witnesses by the Ciuill & Canon lawes, exceptions or challen∣ges

may be taken? And though it were true, that this were gene∣rally allowed, and were also an inconuenience: shall therefore the examining of one for another, when he ought not in equitie to be, ouerturne all proceeding of office as vnreasonable, which is the drift at which he aimeth?

Another of his Inconueniences hereof is; that hereby a Bishop may (vpon his owne suspicion) supplie the place of an Infourmer, a Witnesse, and a Iudge. That his owne suspicion alone, will not serue to open way to such proceeding, is shewed afore in the seuenth Chapter. And howe the Bishop being Iudge, should be vsed as a witnesse in the same cause, wherein he is a Iudge; there is no colour in al the lawe or practice, that I haue knowen, or can ima∣gine. Except it be in a matter done in his owne presence, whiles he sits iudicially; and appearing also notoriously vnto others there besides himselfe; or espied onely by himselfe.

Now if the preiudice to the partie be not very great, why the Iudge alone, aswell as any cōmon person there, that might hap∣pen to haue heard it or seene it, may not be trusted for a sounde witnesse; I for my part can see no cause. Hath the Note-gatherer neuer heard of a Cut-purse espied by the Iudge himselfe sitting on the bench, by him caused to be staied, and being endited vpon his relation, presently tried and condemned?

For a third inconuenience hereof, hee assigneth: that it is a meanes to drawe causes from the Common lawe, when neither in the Citation nor Bill, men shall knowe the cause, why they be conuented: and so are depriued of the meanes of suing a Prohibition at the Com∣mon lawe. This he termeth Addere forum foro.

Yet enquirie by office prescribeth no such generalitie of Cita∣tion. And therefore if this were true, it maketh nothing against that proceeding. But that a Libel doth not conteine the cause of the conuenting, is a very strange, and no lesse bold assertion. If his meaning in this obiection be, that a man cannot procure a Prohibition, till he haue the copie of the Libell; thereby to shewe the temporal Iudge, that something is there in demaunde or pro∣secution, that is not of ecclesiasticall Conisance: then he might more plainely haue declared it. And for mine owne opinion, hereunto I wil agree, that (in most cases) the law is so; howsoeuer late practice be otherwise.

For when the ecclesiasticall Iudge denieth the copie of the Li∣bel where he ought not, to the preiudice of the partie, in this re∣spect: then the statute of K. Hen. the 5. and a writ therevpon fra∣med, doth relieue him. And denying copies of libels, needed not to * 1.325 haue bin cōplained of at that time as a grieuāce, if the law had bin, that vpon the parties owne suggestion only, without sight of the Libell, the temporal Court might at pleasure award a Prohibition. So that this not expressing of cause in the Citation, and denying copie of the Libel, is so farre from being a meanes to drawe causes from the Common law vnto those Courts; that it is of it selfe suffi∣cient to bring thither by Prohibition causes originally being of ec∣clesiasticall Conisance.

But what serueth this not expressing of the cause of conuenting, (if it were so) for condēnation of all proceeding by Office; seeing this might no lesse happen to be omitted, though the prosecution were at the instance of a partie or Accuser? Yet further to satis∣fie both him and others herein; Citations in causes Criminall out of ordinarie Courtes, Letters missiue, and Attachements out of Commission Courtes, doe all import, that there be misdemeanors of ecclesiasticall Conisance, to be obiected against the partie con∣uented. Albeit to expresse al the particulars, would be both ouer tedious and chargeable to the subiect, and (in many respectes) inconuenient besides. And why should this be accounted any more inconuenient or vnreasonable, then writtes of sub poena out of the Starre-Chamber or Chauncerie are, which conteine not so much particularitie of the matters obiected, as those Citations in ecclesiasticall Courtes?

In the reigne of K. Hen. the 8. there were contrary writings published betwixt S. German a common lawyer, and Sir Thomas More, about proceeding onely against heresie ex officio mero; and without any of those allowed meanes precedent, which (by law) may open a way to such Enquirie. These reasons of Sir Thomas Mores, the Note-gatherer assaieth summarily to answere; and I minde not to defende; further then I finde them coincident with some by me vsed, and not fully answered by him. And the rather, because hauing not Sir Th. Mores bookes in readines with me, I cānot know how truely they be gathered: & for that proceeding of office against other crimes, & vpon allowed groūdes by lawe,

may stand sound and good; though all that which Sir Thomas More defendeth in dealing against heresie (without Present∣ment, fame, &c: especially where the penaltie is so grieuous) were to be condemned for vniust and vnequall.

Sir Thomas More in iustification of such proceeding against heresie, alledgeth the like course to be holden, in ministring of temporall Iustice, viz. that Iudges vpon secret information, binde a man to his good abearing, and awarde out a Writ to enquire De ge∣stu & fama, against any man whome they please: and that the Lorde Chaunceller vpon like secret information, putteth men out of Com∣mission. For answere of these, the Note-gatherer saith thus: But they doe not without matter prooued, put a man from his free-holde, or in danger of life, losse of goods, &c: as Ministers be depriued, and put from their freeholde. By which his answere appeareth, that he yeeldeth these obiections (in facte) to be true: and the conse∣quence cannot be denied For if the same course be iust and rea∣sonable in them; why should it be vnreasonable in others? As for the grieuousnesse of the penaltie surmised to be in the one greater then in y^e other; this is not material to make it of iust, vn∣iust. For Magis & minus non variant speciem: more or lesse makes not things to be of diuers kindes. And what will he say then, against that Criminall proceeding of Office, where neither life, free-holde, nor goods is called into question? Shall that then (in his iudgement) be reasonable and iust? Furthermore, what doth this particular recrimination hinder the conueniencie of proceeding by office? For doth that course of proceeding teach or require, that men be punished without any matter proued? There∣fore if this should happen so to be; yet is it onely the personall fault of the men, and not of Law, which establisheth proceeding ex Officio. For though an Accuser should prosecute; yet the Iudges (if they were so vngodly minded) might (de facto) offer this vniustice. Yet this ought not to be any cause to condemne all proceeding by Accusation, to be vnreasonable or vnequall.

But this is so farre from any tolerable answere vnto those ob∣iections: that it is (in trueth) nothing else, then a very vntrue and •…•…anderous imputation, that will not, nay cannot be iustified. What? Ministers depriued, yea put in danger of losse of life, or goods, without any matter proued? I cannot cōiecture what further mea∣ning

herein he may haue, otherwise then to slander: except per∣haps he thinke, the Notorious wilfull contumacie of those that re∣fused sundry times vpon their oathes to answere Articles obie∣cted on her Maiesties behalfe (for matters of their owne facts, or within their knowledges, and not touching either their liues or limmes) so farre as by Lawe they were bound; not to be a matter sufficiently appearing and proued to the Iudges: whereas such their contumacie and contempt, euidently appeared to the honourable persons, Iudges, and other sage, prudent, and learned men, not onely to be most vntolerable; but was iudged by them, to tende also vnto the vtter ouerthrow of the whole fundamentall iustice of this Realme, if it should be suffered.

I do read in deed, 1 1.326 that the Ministers of Geneua do in a letter of their owne, written to the Ministers of Berne (against one Cum∣perell a Minister also of Geneua) testifie no lesse of the Eldership there, then here is traduced. For because Cumperell 2 1.327 did not an∣swere directly (as they thought) before the Consistory or Eldership vnto their Interrogatories by them of meere Office ministred vn∣to him (whereof two concerned his thoughts, and the very cogi∣tations of his heart) so that they helde him thereupon as conui∣cted: and for that there were vehementia indicia, great presumpti∣ons, with a common fame, that he being ordeined Minister for a pa∣rish in their territorie, called Drallian, had neuerthelesse vnder hand sought to place himselfe in the territorie of Berne (for this was his heinous fault whereof they then enquired:) Therefore the Consistorie pronounced, Quòd erant iustae causae, cur Ministe∣rio abdicaretur; that they were iust causes to depose him from his Ministerie. So that albeit we haue no such Lawe or practise in England (thanks be to God, whatsoeuer the Note-gatherer saith) to condemne a man, without any matter proued: yet some other Churches (whom he & his Consorts doe more admire, then their owne) thinke they haue warrant ynough, euen vpon a fame and some tokens, to depose a minister, when they shal find that course meete to be vsed.

Another reason in that behalfe is alledged by Sir Th. More; that the Lords of the Counsel vpon secret information call men of Office, without any prosecutor, vnto examination of matters cri∣minall. To which the Notegatherer answereth thus: viz. that this

is, in matters concerning the state of the Prince and of the Realme; in matters of allegeance: and that a Iesuite or Seminarie priest may be examined by othe, quia ipso facto a traitour.

First, all the matters that their Lordships doe, or may examine, are not of such hie qualitie. And if they were, it is not the impor∣tance or hemousnes of the matter, that can make Iustice of that, which is Iniustice in it selfe; as was touched by me afore. And so be also sundry matters dealt with, in some Courts Ecclesiasticall neerely touching the state of the Prince and Realme. Besides, it is a very strange allegation to say, The Iesuits or Seminarie Priests may be examined by othe, quia ipso facto traitours. As if all, or any traitours, might be examined by othe of their treasons; conside∣ring, that to examine the partie by othe, of matters touching losse of his life, or limmes, is flat contrary to the Lawes, policie, and custome of this Realme in both sorts of Courts: yea and perhaps contrarie to diuinitie too, as the Treatisoure his owne Camerade (though fighting in the selfe same quarrell and following the same Coloures) can and doth tell him.

That which hath bene said to these two last obiections, may also serue to retoyne vnto his replie, made against the obiection, that the like course is vsed by Martiall Lawe.

But if this proceeding of office by Speciall enquirie be so reaso∣nable and oftentimes necessarie; how commeth it to passe (may some man aske) that the names of Inquisition and Inquisitours be holden so odious? Admit those names be odious vnto many: yet this (without further reason) may not serue to cōdemne y^e course it selfe. For many sorts of men be also odious, perhaps without any iust desert or particular abuse in themselues, other then for their office sake, who are not therefore wholly to be reiected: as, Informers of concealments of poenal statutes, Takers, Purueyers, Bai∣lifes errand: yea and some administers of Iustice too, if they be any thing exact & seuere therein. Neither is this odiousnes generall against all Inquisition whatsoeuer; but only against one particular course of proceeding thereby in the crime of heresie practised in some Popish dominions: but of al other most rigorously and cru∣elly in Spaine; yea (as is supposed) farre beyond their owne Com∣mission, that they haue from the Pope: and yet their Commission is also in many points exorbitant from all Lawe and reason.

A writer in the Ciuil Law assigneth a speciall cause of the hate∣fulnes vnto the Cōmon people of the Spanish Inquisition for mat∣ters of heresie. 1 1.328 Inquisitors of heresie (saith he) are hatefull and su∣spected of all Lay-men, because of a long time it hath bene beleeued, that they are wont to proceede vpon most light suspicions, especially a∣gainst those that be riche. Nay in deede how can it be otherwise, seeing their dealing by that Inquisition is especially against men of greatest wealth; because vpon their condemnation their goods and lands are confiscated to the house of Inquisition: that is, to the Inquisitours themselues?

Now seeing none of these strange courses be vsed in any Cri∣minall proceeding in this Realme; there is therefore no iust cause here, to make it hateful vnto any. Yet the Treatiser doth imagine this kind of proceeding to be more frequent in Courts ecclesiasti∣cal within this Realme in respect of the Iudges owne fees, there∣by arising. For answere whereof: First in Courts of Commission Ecclesiasticall (against which some haue the greatest edge and egernesse) the Commissioners haue no fees at all; no not so much as iiij. s. towards their charges, that Iustices of Peace be allowed by Statute, at such times as they serue at Sessions of the Peace, &c: whereas Commissioners are employed, and serue therein freely at their owne charges, with losse of time and intermitting their owne businesse, only of dutie and conscience to her Maiestie and to the Common weale. So that if it were not in this respect, the Commissioners ecclesiasticall both might and would sit still, with more ease to themselues, and lesse obloquie; howbeit by the worst of euery sort of Subiects.

As for Courts of Ordinaries, I knowe some of the greatest of them in England, that haue not two matters ex Officio mero pro∣secuted in them, in three yeeres space. And for such ordinarie Courts as haue some moe causes of that nature: alas, what great fee is it, for the Iudge ecclesiasticall to haue iij. pence for a Citation, or vj. pence for examination of a witnesse, or vpon an acte of Ab∣solution, or such like; to make him desirous (in that respect) to entertaine the cause; seeing hee will hardly be excused with xx. pound charges (that euery such seuerall matter may put him vnto) if an Appellation be brought vpon any errour or mista∣king, that may happen to be found, in his proceedings of Office?

Besides that, the like fees are due to the Iudge, no lesse vpon the prosecution of a partie, then they be vpon proceeding by office: and therefore none inconuenience heereupon more in the one course (which this opinion alloweth) then there is in the other.

Yea, may some say, all prooue not offenders, that be so cal∣led, and that are thereby put vnto trouble and charges. It is true; yet meet to be called, if the law be obserued in this point, that there must be (afore) a sufficient ground of inducement thereto. Neither doe all those prooue to be offenders, that are prosecuted by a partie or by an Accuser; and thereby be put to no lesse charges and trouble, euen when (besides the malice of the preferrer) there was no colourable ground of the accusation. The like may be also truely said of many others, who be called euen before temporall Iudges and Iustices of the peace, either by warrant, writte, or otherwise. Yet is this no cause, heereupon wholly to disallow these conuentings. And there is no more reason to finde fault with the fees due vnto the Iudges ecclesia∣sticall, in regard that euery one which happeneth to be conuen∣ted, prooueth not guiltie of the matter imputed to him: then there ought to be with the fees, that are due to Iudges in tempo∣rall Courts for iudiciall or originall writtes &c. because many of such suites be commenced (as often falleth out in the end) with∣out good matter on the Plaintifs or Informers behalfe. Thus much in answere to the obiections made against the reasona∣blenesse, and conueniencie of proceeding by Office.

CHAP. XI. That the lawes of the Realme do vse Enquiries and proceedings ex officio, and that they allow it in Courts Ecclesiasticall, with an∣swere to some obiections that are made to the contrary.

IN the next place I am to shew, that dealing by way of enquirie or enquest, ex officio, without suite of a partie; called by the Common law Office del Court, are both mentioned and pra∣ctised by the lawes of the Realme. In 1 1.329 Magna Charta mention is made of a writ of Inquisition of life and member. In an olde statute of king Edward the first, a

seuerance is made betwixt the suite of the King from the suite of a partie: and the King is thereby (as it were) bound to sue, and to lend his office, for prosecution of the misdemeanours. For it is 1 1.330 thus prouided, that if any take away a woman by force &c. the King at his suite that will sue, shall doe common right within fortie dayes: and if none commence his suite within fortie dayes, the King shall sue. Which suite being in his owne Court, and before him∣selfe, must needs be of office. For where there is Inquisitio, Enqui∣rie, there the King is partie: as by another statute of the same 2 1.331 Kings dayes appeareth: De Inquisitionibus coram Iusticiarijs qui∣buscunque capiendis, & in quibus D. Rex est pars qualitercun{que} con∣cordatum est &c. In a statute of 3 1.332 king Edward the third, arreign∣ment at the suite of the King (which is ex officio) as a distinct mat∣ter from that which is at the suite of a partie, is spoken of: and so 4 1.333 are also Commissions of inquisition afterward. Furthermore in K. 5 1.334 Henrie the sixt his time, en quest or inquisition of office is mentio∣ned: and in sundrie 6 1.335 statutes both after and afore, which are needlesse to be repeated. For (as I take the matter) euery en∣ditement is an Inquisition: which if it be at the prosecution of a partie, it is, as officium promotum: but if it be by the Iudges, for the Queene (in respect of the interest of the Common-wealth) then is it officium merum or nobile, as afore is declared.

This maner of dealing, in sundrie cases is so vsuall at the Com∣mon law; that there be whole titles made in the Abridgements, touching Inquisition and office del Court: viz. of enquiries and matters done by the Iudges vpon their discretions, without the instance of any partie.

In reports at the Common law, we finde it said, 7 1.336 that Iudges ex officio did charge an enquest to make enquirie of their owne collusi∣on, supposed to be committed among them. 8 1.337 Further: One of a Iurie, that departed from his fellowes after that he was sworne, was exami∣ned at his returne by the Iudges ex officio, whether he had since spo∣ken with the defendant or no? Likewise it is said, 9 1.338 that the Court ex officio ought to award an Assise to enquire (whether the disseisin were with force) by reason of the kings fine. In the booke of 10 1.339 Assises: The Court ex officio sent a man to prison, because they found he had not made fine. And a great number of particular articles are there set down, wherupon 11 1.340 enquest or inquisition ex officio in the Kings bench

is to be made. We finde of elder time by 1 1.341 Bracton, where the appel∣lor that prosecuteth, makes default or dieth, there the king may proceed ex officio. And againe there: Let the king ex officio suo, & for his peace proceed to inquisitiō, for the suspicion that he hath of the appeale.

Moreouer, where a Parson and Vicar were both willing e∣nough to sue before the Temporall Iudges: yet 2 1.342 the Iudges fin∣ding the plea to be of Ecclesiasticall iurisdiction, did ex officio, at no mans instance, dismisse it out of that court, as not perteining to their iurisdiction. And do we not often see the ordinarie course for en∣ditements, much assisted and holpen by the Iudges and Iustices search, examinations and dealing therein, (of office and duetie onely) both in treasons & felonies, and in other causes of more priuate interest, that be preferred by others? doe they not also vpon their owne discretion, & for causes knowen to themselues, without prosecution of any partie, (and so ex officio onely) often times commit persons of suspected behauiour to prison; and not dismisse them, till by a writ of enquirie de bono gestu & fama, they be found worthie to be set at libertie? So that by these few, and sundry other that might be brought, it may appeare; that pro∣ceeding and enquirie ex officio, is so farre from being, so much as a diuers course from the lawes of the Realme, that it is often pra∣ctised thereby, when no partie besides the Iudges themselues, do entermeddle.

But it is not onely by that law practised, but also allowed (by it) for a lawfull course of proceeding in Ecclesiasticall Courts a∣gainst crimes and offences. By a statute of 3 1.343 Henrie the fift, such an Inquisition of Hospitals of the Kings foundation, is appointed vn∣to Ordinaries: and in those that be of any other mans foundation, Ordinaries are authorised not onely to enquire of the foundation, e∣state, and gouernance of them, and of all other matters necessarie in that behalfe, but also to make thereof correction & reformation, after the lawes of holy Church, as to them belongeth. So that if Ecclesia∣sticall lawes doe warrant this enquirie and course of reformation and correction, then this statute will giue force vnto it. By 4 1.344 an∣other statute: If any Clerkes be conuicted of incontinent liuing in their bodies (being but afore perhaps openly noised thereof) before whom conuicted? afore Ordinaries. How? by examination, & o∣ther lawfull proofe requisite by the law of the Church, they may by the

Ordinarie, at his discretion, be committed to ward. Which toge∣ther with the committing, must needs be both done ex officio: for that no partie to prosecute is there mentioned to be required; and because the Ordinarie thereby may proceed, vpon the pub∣like infamie noised abroad.

The statute of 1 1.345 Citations made afterward, mentioneth a case where an inferior Ordinarie may be partie to a suite holden afore him: which may aswell be vnderstood in a cause mooued of Of∣fice for an offence, as in any other matter. But more plainely afterward: for there the very word ex Officio is vsed; and it is prouided, that the forfeiture of that statute, for calling a man out of the iurisdiction where he dwelleth, shall runne against him that cited, whether he proceed by vertue of his office, or at the suite of any person. Whereof may be gathered, that the lawes of the Realme take knowledge of that course ex officio to be as warrantable as the o∣ther, made at the suite of a partie: so that other requisites be ob∣serued. And though the statute against Heresie stand 2 1.346 now re∣pealed, yet it may serue to prooue, that not onely inquirie, but ex∣amination also of the partie himselfe, in a visitation by Ordinaries (both which are done ex officio) is holden for a course of the law ecclesiasticall not to be condemned or disallowed by the lawes of the Realme.

In a statute touching 3 1.347 Ordinaries seales now also repealed, certeine ecclesiasticall causes be rehearsed: among which, causes of instance betwixt partie and partie, are plainly seuered & distin∣guished from causes of correction: thereby giuing vs to vnder∣stand also, how rarely causes of correction be prosecuted by any partie; but by the Iudge ecclesiasticall himselfe alone proceeding of Office. And 4 1.348 by a statute in the first yeere of her Maiesties reigne, made for vniformitie of Common prayer, Ordinaries are au∣thorised to inquire and to punish &c. the violation of that act, as heretofore hath bene vsed in like cases, by the Queenes ecclesiasticall lawes. But that an enquiry is alwayes of office, and what the lawes ecclesiasticall be in this behalfe, and how the continuall vse hath bene, is shewed afore: so that none need remaine doubtfull in these points.

The very Common law not onely taketh knowledge of this course holden in Courts ecclesiasticall: but in some respect doth

also priuiledge it, euen aboue the proceeding by a partie. 1 1.349 For if an Ordinarie doe sequester goods of the dead for any contumacie, or ex Officio; which giueth no possession to him, the court spirituall (in this case) shall haue Iurisdiction. And it seemeth by that case, the lawe to be otherwise, when it is at the suite of a Partie. So in a case 2 1.350 of violent hands laied vpon a Clerke, both Brian and Litle∣ton held (no man gaine saying of it) that the spirituall court may pu∣nish it ex officio, but not at the suite of the partie: least the beater thereby bee kept from his absolution, till some temporall duetie bee con∣tented and paied. And Mordant 3 1.351 was of opinion; that if a man bee sued by a partie pro laesione fidei in not paying a summe of money promised, there shall lie a Prohibition: yet if the iudge ecclesia∣sticall shall doe it ex officio, that then no Prohibition shall lie. Neither doeth any gaine say him herein. Vnto which opinion of his, ano∣ther iudgement giuen in the 4 1.352 booke of Assises in like case, see∣meth to accord. To like effect also 5 1.353 Fitzherbert reporteth, that an Ordinarie may cite and proceed against a man ex Officio, pro vio∣lenta manuum iniectione in Clericum: likewise for tithes detained in the time of vacation of a benefice: so he may cite also such as re∣fuse to maintaine a Curate or Chaplaine: and for fornication or like offences.

Fitzherbert 6 1.354 in another place also thus writeth: If a man (saieth he) be sued in court Christian, or if the bishop sue and cite him ex Officio and excommunicate him, &c. And againe 7 1.355 thus: Signi∣ficauit lieth not, but where the partie is excommunicate by name, ma∣iori excōmunicatione: vpon a spectall suite against him ex Officio, or by a partie: therefore both are alike lawfull, and allowable by the common lawe. And that for wrongfull detaining of tithes in time of vacation of a benefice, the ecclesiasticall Iudge may cite and proceed ex Officio, doeth plainly appeare euen by 8 1.356 one of those books which the Note gatherer doth alleage against this course; though (in trueth) it haue no one word tending that way. Belike he thought no man had the booke but himselfe; because (it may be) he casuallie happened vpon it in rifeling amongst other olde bookes cast aside in some Stationers shoppe. To like effect the same booke hath; that 9 1.357 if a man bequeath a bullocke to a church for reparation of it, or of the churchyard: if he that hath him will not de∣liuer him, either the Church-wardens may sue for such detinue in a

court ecclesiasticall, or the Ordinarie may ex Officio call him, and vrge him to deliuerie. And the like is there testified (being taken out of the Register) in a more grieuous crime of ecclesiasticall cognisance. For (saieth he) 1 1.358 if the Iudge ecclesiasticall cite a man of office for fornication, &c. & a prohibition or appeale being brought, he after renounceth all delayes, and submitteth himselfe: the Iudge shall proceed ad poenam Canonicam imponendam, vpon a consul∣tation or writ vnto him to be directed.

Likewise the Register is very plentifull in this behalfe; as first where 2 1.359 Enquirie (which is alwayes ex officio) is not onely allow∣ed, but commanded to be made by a Iudge ecclesiasticall: 3 1.360 Uo∣bis mandamus, quòd habita super praemissis per Inquisitionem & alios modos informatione pleniori, &c. and for the very word of procee∣ding ex officio: as where it was written vnto the Officiall of the court of Canterbury or his Commissarie thus: 4 1.361 Cum vos nuper ex Officio vestro, fama publica referente, quod T. &c. vestrae iurisdictio∣nis C. in amplexibus fornicarijs tenet, ipsam corā vobis in curia chri∣stianitatis pro correctione animae suae in hac parte citari feceritis, pro∣cedentes contra eum (ibidem) iuxta Canonicas sanctiones, &c. vobis significamus, quòd in causis praedictis, ex officio vestro, quatenus ad correctionem animae, &c. procedere & facere poteritis, quod ad offici∣um vestrum speciale de iure noueritis pertinere, &c.

Likewise in another Consultation it is conteined thus: viz. Cum vos 5 1.362 nuper (vt acce•…•…imus) iuxta officij vestri debitum obieceritis Io∣anni de E. parochiano de C. quòd ipse, &c. detinet, &c. vobis significa∣mus quòd in causa praedicta quatenus adrestitutionem, &c. & ad poe∣nam canonicam eidem I. pro detentione eorundem legatorum impo∣nendam coram vobis agitur licite procedere &c. poteritis. And a∣gaine thus: Cumper 6 1.363 vos contra H. de Lyndesey Notariū publicum super 7 1.364 fornicationis crimine infra iurisdictionem vestram commisso grauiter infamatum, tum super dicto crimine, quam super eo quòd iu∣risdictionem vestram per tumultum & rixas, executionésque vestras in hac parte debitè faciendas nequiter impediuit, ex officio ad animae suae correctionem fuisset processum, &c. vobis significamus, &c. quod procedere poteritis. Mention is also there made in a precedent of a Consultation, of proceeding 8 1.365 ex officio ad promotionem parochiano∣rū, in these words: Cum ex officio ad promotionē dictorum parochia∣norum,

traxeritis in placitum, &c. vobis significamus, quòd procede∣re poteritis, &c. Furthermore, there is mention made of one, who by that course was proceeded lawfullie with, for refusing to pay his vsuall oblations, to be confessed to the Priest, and to receiue the Communion, in these wordes: 1 1.366 cum ipsum ex Officio vestro coram vobis ex causis praemissis euocari feceritis, ad procedendum contra eum, ad poenam corporalem sibi pro correctione animae suae in hac parte infligendam, &c. vobis significamus, quòd in dicto placito, sic coram vobis ex Officio vestro, moto; procedere & vlterius facere poteritis in curia Christianitatis, quod ad vos, & ad forum ecclesi∣asticum noueritis pertinere, prohibitione nostra non obstante. And vpon a prohibition brought by a knight to his Ordinarie, that proceeded ex Officio agaynst him, for certaine his crimes and excesses; a Consultation was 2 1.367 granted: the wordes of the Regi∣ster are these: Cum vos nuper ad corrigendum crimina & excessus subditorum vestrorum iuxta Officij vestri debitum procedentes, R. de C. militi obieceritis, &c.

The like consultation is there founde agaynst a Chaplaine proceeded with ex Officio for fornication; that had also brought a prohibition. The wordes 3 1.368 of the Writ vnto the Ordinarie be these, videlicet, Cum vos T. de W. capellano, ex Officij vestri debito obieceritis, quòd ipse carnaliter cognouit, &c. in animae suae periculum & scandalum aliorum, vnde contra eundem ad correcti∣onem animae, &c. As in other consultations there, after prohi∣bitions (vpon vntrue suggestions) had bene purchased.

An example is also 4 1.369 there of allowing (by Consultation) of proceeding ex Officio; to the ende of enioyning corporall pu∣nishment; agaynst one that laied violent hands vpon a Clerke; whereby hee incurreth (saieth the Writ) excommunication ip∣so facto.

Likewise an 5 1.370 Ordinaries proceeding ex. Officio, to the in∣terdicting of a Church, and to the inflicting of other Canonicall paines for with-holding and not finding of a Chaplaine or Cu∣rate to serue, (according to an ordination or reall composition there∣of made) is there approoued lawfull by Consultation gran∣ted. And so is the like proceeding of Office allowed for 6 1.371 tithes with-holden, falling due to the Bishop and Archdeacon in the time of vacation of the benefice; for by the lawe and custome

then, in 1 1.372 most Dioecesses of this realme, tithes of vacant benefices were due to them.

In the writ of Consultation alleaged afore out of the 57. page of the Register for allowing proceeding ex Officio against a fornica∣tor: it is 2 1.373 also conteined; that the partie before prohibition by him brought, had submitted himselfe: for which cause of the parties violating his owne submission, and for his contempt mandatorum sibi factorum: the Ordinarie is authorized and war∣ranted to deale against him, (as afore he had begun) ex officio. By all which may appeare, both the practise of Inquisition, and proceeding ex officio in some cases by the lawes of the Realme, and the allowance also by those lawes, of such course holden in courtes ecclesiasticall both in offences and in other causes also, that be neither testamentarie nor matrimoniall.

But it may perhaps be sayd, that great abuse may hereupon folow, if the Iudge list to vexe a man wrongfully: for he may pre∣tend strong Euidence and Information or a common fame to be a∣gainst a man, or such like afore shewed, whereof he is crediblie aduertised. Well, if it be but so much, that the ecclesiasticall Iudge (when he is called by his superiour) must be able to make proofe of some such: it is more then a Iudge or Iustice of Peace neede shew, why he calleth any man into question, or bindeth him to the peace, or to the good behauiour. And what lawes can be de∣uised, but they may be abused? whatsoeuer hath an vse, hath also an abuse, sauing vertue, saieth 3 1.374 Aristotle. Yet if he be an Ordinarie (as hath bin aforeshewed) such grounds of his proceeding must appeare in Acts Iudiciallie, or be well prooued: or else (vpon an Appellation) his proceeding is to be refourmed.

Besides, is it not more probable that a Partie which will ac∣cuse, shall doe it of malice to vexe oftentimes an innocent, and to bring him into perill; then a Iudge who reapeth no commodi∣tie thereby, but satisfaction of his duetie? and is not he more like to deale in these causes with sinceritie, then quilibet è vulgo? yet by this opinion, such are permitted to accuse and to preferre mat∣ter against any, though no fame nor other matter, no not so much as suspicion doe appeare against them.

Is it not then all one, whether the innocent man be wrong∣fully vexed by the Iudge, or by a priuate person, who (in a maner)

professeth, that he doeth it of malice? neuerthelesse for all this in∣conuenience and abuse that may happen, it will not be thought conuenient (I trust) to damme vp the way from euery man both Iudge & partie, to preferre suites against offenders. For if it should so be, in short time there would bee neither Iudge nor other, but lewd persons onely; and they might liue as they list.

Yea, but it seemeth vnreasonable (will some man say) that a man should be called into question and not to know his Ac∣cuser. Surelie if the way of proceeding by Accusation be taken, he is to know him: but when by Enquirie, though for the most part the Denouncer is knowen, yet there be many weightie and very considerable causes, why euen witnesses in cause of heresie: and much lesse those that gaue the information, should not bee knowen; which euerie man of himselfe, without rehearsall, can weie and call to mind.

Besides, this obiection maketh nothing against all proceeding ex officio. For when it is grounded and instituted vpon a Present∣ment by officers speciallie appointed, their names are knowen to him whose processe is made. Yet I must tell you, that hereby it commeth oft times to passe, that meane men in parishes abroad, and for very foule crimes, do rather make choise to be bold with their oath and conscience, then with a delinquent, whom they haue some occasion to feare.

But (I pray) what necessitie is there (in Iustice) of knowing the Relatours? may not a Iurie endite a man without any cause openly appearing, as when the matter is either knowen to some of them aforehand, or the Euidence (as some times happeneth) is not giuen openlie? which cases happening; the partie endited shall neuer know who gaue the information, because they are sworne to keepe secret the Queenes, their owne, & their felowes counsell. Which course for the trouble of the partie supposed to be delinquent, doeth amount to as much, as if the Iudge ex officio mero had done it.

When the Lords of the Counsell haue a supposed malefactor in examination, are they bound in Iustice, or were it but good poli∣cie to signifie vnto him, who it is that giues the information; and to confront them together at first dash? but howsoeuer these (by circumstances) should be thought fit to be caried, it is neither to

nor fro, to the condemnation of all proceeding vpon the office of the Iudges onely, as vniust, whether a man know or be ignorant, who made the Denunciation.

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 1.375 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 1.376 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 1.377 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 1.378 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 1.379 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 1.380 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 1.381 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 1.382 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.

CHAP. XIII. That the Enquirie ex Officio against Crimes, is allowed both in Ciuill or Temporall Courts and in Ecclesiasticall also, by the two Lawes Canon and Ciuill.

TO proue that the Canon and Ciuill lawes both, doe allow of the course, I shall not neede to stand long: because so much hath by the way very often, (though hitherto not of purpose) bene declared. To alledge therefore for the former once for all, it is the 1 1.383 common opinion, that by the Canons, Iudges Ecclesiasticall may indifferently in euery Crime being within their Iurisdiction, proceede ex Officio, for the common benefite. And (as was vpon another occasion alledged afore) 2 1.384 when the Enquirie is made to the purpose of correcting for the soules health, and not of punishing, the Iudge may proceed ex Officio, though no fame were precedent. And againe; 3 1.385 when an Enquirie is made of any Crime committed against the Maiestie of God, as he∣resie, blasphemie, &c. the enquirie is of validitie, though it be without the solemnities of place, time, &c.

By the Ciuill Lawe it is so allowed of, as it is called a procee∣ding per Nobile Iudicis Officium. In the olde Common weale of Rome, what was more vsuall with their great Magistrates then habere quaestionem, to make speciall enquiries and trials of suppo∣sed offenders? one 1 1.386 or two in steade of many may suffice. L. Post∣humius the Praetour had Tarentum assigned vnto him for his Pro∣uince; and there he made seuere Inquisition against such Shepheards that had conspired and lincked themselues together, and made all High wayes and Commons (by their robberies) most dangerous to be passed. Of which sort of persons hee thereupon condemned seuen thousand. Those Magistrates that 2 1.387 were called Aediles, had au∣thoritie by their Office vpon a summary knowledge had of the cause (such as is vsed in Pie-powder Courts here) to breake all vnlawfull measures, to ouerthrowe, destroy, and marre false and corrupted wares, and to punish those that offered them to sale: yea and sometimes al∣so to beate with roddes. This proceeding was so well knowen to all in those times, that Tertullian an auncient father of the Church doth put the Emperours to whom he writes, in minde of their owne lawes, whereof he there vrgeth 3 1.388 execution. If I be not deceiued (saith he) the Ciuill Lawes doe commaunde, that male∣factours be sought vp and found out; and not to be concealed, &c. This is appointed by the decrees of the Senate, by the Ordinances of Em∣perours, and by the very Empire it selfe; whose ministers you are. And againe 4 1.389 in another place thus: Nulla lex vetat discuti, quod prohibet admitti. Whatsoeuer any Lawe forbids to be done, as∣suredly it permits to be sought out, & sifted. Let vs see (saith the 5 1.390 Ciuill Lawe) whether a Gardein of an infant that is suspected, may be remooued from his Gardeinship without any accusation. and it is receiued that he ought to be, if by euident tokens it appeare to the Prae∣tour, that such a Tutour is to be suspected.

And albeit the 6 1.391 glosse say, that ordinarily (by that Lawe) the Iudge proceedeth not ex Officio: yet by reason of the strait course holden thereby with all Accusours, so that Accusation is now al∣most generally through the worlde growen in disuse: it is there∣fore by 7 1.392 such generall custome made lawfull in euery cause, for a Iudge to proceede (at the Ciuill Lawe) ex Officio. So that (consi∣dering such 8 1.393 custome) it is as ordinarie a remedy now, as Accusation. And some reason hereof is assigned to be this, that the Lawe

iudgeth euen an Accusour not to be wanting in such procee∣ding, for that 1 1.394 in euery Crime, Fiscus est Accusator, the common interest is the Accusour: and it is so farre from being a course disallowed by that Lawe, that 2 1.395 (albeit there were no such cu∣stome at all) yet there be very many cases, wherein by the very ex∣presse disposition of that lawe, the Iudge may proceede ex Officio. Nay it is thus testified by a great Lawyer, that 3 1.396 in any case what∣soeuer euen by the Ciuill lawe, it is permitted to the Iudge to proceede of Office, and so by way of Enquirie.

And this is receiued, not onely in publicke and popular mis∣demeanours, but also in priuate offences. For 4 1.397 in these (without either complaint or Accusation) the Iudge may proceede of Office by way of Enquirie. Albeit the Lawe set not downe for such, any certaine (either corporall or pecuniarie) penaltie; for then such an offendour is punishable, by some extraordinary penaltie. The reason of this proceeding in priuate Crimes is, the very interest, that the Com∣mon wealth hath, to haue such offences punished. By reason of which common interest, 5 1.398 euen where there is an Accuser, yet if hee be away, the Iudge ex Officio may proceed and go on in the cause. And so it is obserued by common practise, in Ciuill lawe Courts. The like is to be saide when the partie wil collude with the 6 1.399 malefactour: for if he that was robbed will collude with the thiefe, and say hee was not robbed: yet if there be likelyhood to the contrary, the partie is not beleeued, but the Iudge proceedeth ex Officio, quia interest Reipub. puniri furtum.

Touching the penaltie due, vpon such proceeding, some wri∣ters holde, that 7 1.400 the ordinarie paine appointed by Lawe, is not to be inflicted vpon proceeding of Office. But they also make these ex∣ceptions: viz. that this doth not holde, 8 1.401 where the Crime is noto∣rious: nor 9 1.402 where the defendant vpon the enquirie confesseth the Crime: nor by the 10 1.403 course of the Ciuill Lawe. For in these cases they affirme that the very ordinarie paine (expressed in the Law) may be imposed. But it is assured, 11 1.404 that by Custome at both these Lawes not onely a milder paine, but the very set paine of Lawe it selfe may be inflicted, euen when a Iudge hath proceeded of Office.

But here some may obiect, that those Lawes do seeme some∣times to require an Accuser. It is true: but neither alwayes, nor of necessitie, as hath bene opened. And it is shewed afore,

that publike interest stands in steede of an Accuser. Likewise the 1 1.405 Lawe accounteth fame precedent to be a kinde of Accuser. And where fame wanteth, other 2 1.406 presumptions, and Indicia or euidences are (in this behalfe) equiualent vnto a fame.

It may further perhaps be vrged, that by Ciuill lawe, this En∣quirie ex officio, is counted an extraordinarie remedie. If it were so admitted to be, what would this auaile those, that oppugne it simply? for the rule is, Vbi cessat remedium Ordinarium, ibi de∣curritur ad extraordinarium. And it is not holden, nor is other∣wise likely, if a partie will seriously and with effect prosecute, but that the Ordinarie Iudge will cease further to deale therein, ex officio: yet it is a little afore signified, that by reason of such generall custome, this Enquirie ex officio, is become, euen by the Ciuill Lawe, to be an Ordinarie remedie. And besides that cu∣stome, wheresoeuer 3 1.407 Enquirie of office is specially permitted either by Lawe (as in many cases) or by statute, there it is as ordinarie a reme∣die as Accusation. And by the 4 1.408 Canon Lawe, it is absolutely an ordinarie remedie.

I haue also heard it to haue bene obiected against this course, that bad and infamous persons suggestions haue bene accepted. If it be so, it is but the fault of persons, not of the Lawe. And if by an Appellation from any ordinarie Court, this point come to ham∣mering; it wil not be found absolutely iustifiable. yet experience teacheth, that not onely Relatours (that be infamous and bad per∣sons) be in some cases admitted by the Lawes of this Realme, but (which is more) they are permitted also to be witnesses. As both infamous persons, and those that be partakers with the ap∣peached in treasons, murders, and felonies: which is permitted in fauour of the Prince and common wealth, in detestation of such grieuous crimes, and for the very nature of the crimes, which are (for the most part) so perfourmed; as none honest persons, but such as themselues, are or can be priuie vnto them.

Vpon the same grounds, the Ciuil Law also admitteth the like witnesses. Therefore is it testified to be 4 1.409 the common opinion of writers in that Law, that for the horriblenes of some crimes, witnesses otherwise disabled in Law, may be receiued, as in here sie and in Trea∣son. Also when the trueth of the matter cannot otherwise bee had: therefore the rule is, that when the facte is of such qualitie, that other

witnesses cannot by any possibilitie be had, in such case those shalbe ad∣mitted, that are in other cases forbidden by lawe. Therefore none of these, nor any such like friuolous obiections, will be able to ouerthrowe this course so manifoldly grounded both vpon those former seuerall lawes, and also vpon reason.

CHAP. XIIII. An answere to such obiections, as vpon the Ciuill or Canon lawes are brought against all proceeding of Office in causes Criminall by the Treatisour and the Note-gatherer.

AGainst all that is or may be brought out of those two lawes for confirmation hereof, the Treati∣sour rather exclaimeth, then obiecteth; that they are strange lawes, strange and forreigne pro∣ceedings; and I knowe not against what pre∣tended strange courses, he bitterly inueieth: as if nothing that is vsed els-where in the world, could sauour of Iu∣stice besides our owne; or might be receiued amongst vs, howe apt or beneficiall soeuer it be otherwise. Neuerthelesse, we finde in the bookes of termes and yeeres, many things reported out of the Ciuill and Canon lawes; yea & many rules taken out of them, which are there both alledged and allowed of. That sage and prudent Senate, with the whole people of Rome, when of twelue Tables (which conteined the ground of all their lawes) tenne of them were transcribed & taken out of the lawes of sundry com∣mon weales then in Greece: they neither helde it any disparage to their owne Nation; nor in that respect accounted them the lesse to be Romane lawes.

Though it were graunted, that the proceeding of office in Courtes Ciuil and Ecclesiasticall with vs, was drawen at first from those two lawes: yet the same or like proceeding, which is vsed in sundry temporall Courtes here; perhaps will not be iudged to haue bin taken and borrowed from those two lawes; but rather to haue bin the very olde originall custome and Common lawe of the land. Which consideration (if it be true) must needes (in mine opinion) make much for the approuing of the reasonable∣nesse and equitie of that proceeding: when as seuerall nations, by

one instinct of the light of reason, haue so long iumped & hitte vpō one & the same course; without borrowing it, the one of the other. But frō whencesoeuer any of these courtes in this lād, haue borrowed their proceeding of office; seeing temporall Courts of the Realme haue practice of the like course, & those lawes do al∣low it also vnto Courtes ecclesiastical according to the vse euen of so many hundreths of yeeres, as this Nation hath bin Christian: therefore these 1 1.410 proceedings ought not now at length to be ac∣counted either forreine or strange from our policy, but rather as our owne homebred English lawes, and her Maiesties lawes eccle∣siastical, as they be often termed in actes of Parliament. It is true which is said out of the Ciuil law, Ea nostra facimus, quibus aucto∣ritatem 2 1.411 nostram impartimur: Those things we make ours, vpon which we bestowe our authoritie, whether expresly, or by implica∣tion, vpon long continuance of practice.

The Note-gatherer to the intent to proue (as may be gathe∣red) that the Ciuil lawes doe disallow this proceeding, saith: It is to be proued, that the Pagan Greekes and Romanes, ordinarily vsed In criminibus violatae religionis, no such maner of proceeding, but Per accusationem.

It is warely said by him, that it is to be proued; because as yet it is not done. But if it could be proued, that they vsed none other (the contrary whereof is made apparant) doth it thereupō follow, that we may not; or that al other courses be vniust? or if they vsed not any other, then Accusation ordinarily; that therefore they vsed not proceeding of office at all? or if not in that one crime violatae religionis; that therefore in none other crime whatsoeuer?

Vnto this Chapter are many of those quotations to be refer∣red, which the Note-gatherer hath mustered and thronged toge∣ther in his first title, which is this, viz. testimonies out of the aunci∣ent fathers, that doe mislike the proceeding ex officio, and othe nowe vsed. But like as many of them be altogether mutes, both in the one point and the other: so sundry of them that are compelled to giue euidence and to say somewhat; doe not once mention an othe; yet happely speake somewhat of Inquirie or Accasation. Yea, and his maine conclusion, which he propoundeth vnto him selfe in that title to prooue, reacheth no further, nor is otherwise then thus: Inquisitio ab imperatoribus prohibita. Such of them there∣fore belong to this disputatiō. But this conclusion of his might be

true; and yet neither the parties oath in a criminall cause any whit impeached; nor all proceeding of office thereby disallowed. Ne∣uerthelesse whether all proceding by enquirie be prohibited by the Emperors shal appeare. For I mind here to examine euery of his quotations falling into this place by peece-meale. In that his quotation out of Eusebius 3. booke and 30. Chapter, no matter (sounding to either of these wayes) is conteined: but he writeth there of S. Ignatius. Likewise in his 4. booke. & 13. Chap. nothing is touched, but of Polycarpus. And in the 17. Chapter of the same booke, no more. For he only mentioneth there the writings of Iustinus Martyr. 1 1.412 Paulus Diaconus in the place by him quoted, but not alledged (for he alledgeth no place at all in that whole title) saith thus: Traianus the Emperour writ backe to Plinius Secundus, Christianos profide nullatenus inquirendos: that Christiās for that they beleeued, should not at all be enquired after, or sought for. To the like effect Tertullian 2 1.413 saith in the place by him quoted, viz. Traianus rescripsit hoc genus inquirēdos quidem non esse; oblatos verò puniri o∣portere; Traian by his rescript decreed, that this kind of men should not be enquired after: but being offered or hit vpon should be punished.

It is manifest therefore hereby, that albeit in some fauour to the Christiās (whō he saw so cōstantly & in such multitudes, litle lesse then to offer thēselues vnto death for professiō of Christ) he cō∣manded, that they should not of purpose be enquired after and sought vp, which is done by general enquirie, & not by special: yet notwithstanding neither the one enquirie, nor the other was by him cōdemned or forbidden. For special enquirie is not spoken of there at al: & general enquirie (as I shewed afore 3 1.414 out of Duarenus) is hereby plainely established; insomuch as this course (being but nowe newly forbidden) doth proue, that it was lawfull and in vse afore: and being but cōcerning Christians only, it argueth that al malefactors besides, were stil (as they had bin before) en∣quired after, and d•…•…ligently sought vp, the lawe Ciuill being left, as it was afore. But how lawfull & expedient Tertullian thought enquirie to be (if the Christians had bene malefactours in deede, as the Emperor & other heathen then held them) the next words following 4 1.415 conteyning his iudgement touching that decree) doe plainely shew. Oh (saith he) what a decree is this, that necessarily ouerthroweth & confoundeth it self? He denieth that they are to be en∣quired, as holding them innocents; & yet appoints thē to be punished as

malefactors: he spares them, and is cruell towards them: he winkes at them, and yet doeth punish them. How falles it out (ô Emperour) that thou entanglest thy selfe by thine owne iudgement? Si damnas, cur non & inquiris? If thou condemnest them, why doest thou not also vse en∣quirie against them? If thou wilt not vse enquirie towards them, why doest thou not quit them, as guiltlesse? Through all thy Prouinces, for searching vp of Robbers, Militaris statio sortitur, certaine set souldi∣ers (called Stationarij) are by lotte assigned: and against traytours and common enemies euery man is as largely authorised, as any such soul∣dier. Yea, and Inquisition doth reach also vnto Complices and concea∣lers. Then belike of all other, onely a Christian may not be enquired a∣gainst, and yet he may be offered vnto punishment.

Hereunto also serueth that, which the same auncient father writeth in that booke afterwardes, and is alledged by Nicepho∣rus in one of the places 1 1.416 that are quoted by the Note-gatherer: so farre is it from seruing his turne any way. What vniustice then doe such Iudges to vs (saith Tertullian) which make enquiries alonely against vs, and that wickedly, vniustly, and cruelly? Whom Vespasia∣nus albeit a conquerour of the Iewes, commaunded not to be straitlie watched: For whose sake, Traiane in part disanulled the publike lawes, in that he forbade Christians to be enquired after: and whom neither * 1.417 Hadrian (albeit he was a most curious searcher into all matters) nor he that was named Pius, would allowe to be persecuted.

Yet if this prohibition of Traiane had bin so to be vnderstood, that speciall enquirie should not be vsed against Christians: howe litle neuerthelesse this would make for the absolute condemna∣tion of all proceeding in that course, may appeare by the like de∣crees, which were also made by Emperours in fauour of Christi∣ans, that they should not so much as be accused. For the same fa∣ther else-where saith thus: 2 1.418 Tiberius Caesar persisted in his opinion, and threatned great dangers to all Accusers of Christians. Nicepho∣rus likewise, in the next aforesaid place, 3 1.419 alledged by the Note∣gatherer himselfe, thus writeth out of Tertullian: That Marcus Antoninus the Emperour, after that the Christian Legton in great distresse of his whole hoste (being readie to perish for thirst) had by prayer obteyned a shower at Gods hand; did appoint a fearefull kinde of death to all that woulde institute Accusation against any Christians.

To the same purpose both Eusebius, 1 1.420 and the sayd 2 1.421 Nicepho∣rus, doe write in two places (quoted also by the Note-gatherer, as if they serued his purpose) out of Antoninus his edict. My father (saith the edict) did decree, that this sort of men should not be troubled, except they commit some crime against the Romane em∣pire. And therefore, if any shall hereafter dare to trouble or impute crime vnto any Christian, only for that he is a Christian; let him that is so accused, be acquited; albeit he be found indeed to be a Christian. But let him that accused him be duely punished, as he hath deserued.

Now because in fauor of the Christians, these seuerall Empe∣rours did command aswell that they should not be accused, as Traian did that they should not be enquired after & sought vp: shall we therefore hereupon gather, that neither accusation nor inquisition might be vsed by the law of the Romanes against any offenders? or that these ancient fathers (which report thē) mis∣liked of both those proceedings, and so (vpon the matter) con∣demned all proceeding & punishing of any offenders whatsoe∣uer? But if this be most absurdly gathered; then consequently are these his allegations friuolously and absurdly alleged, to proue, either an absolute or simple prohibition, or any mislike at all of proceeding by enquirie and of Office against offenders.

In Dion Cassius (whom to like end he quoteth) the life of the Emperor Nerua is not found. In Dion Nicaeus abridged by Xiphi∣linus, 3 1.422 these words be read in the life of Nerua, which it may be he meant. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. The emperour would not permit the rest, to accuse certeine persons ei∣ther of impiety, or of Iewish profession: by which terme the Christian religion is thought to be meant. What? Because he forbad cer∣teine to be acused of those crimes, doth it hereupon follow that enquirie of Office (which is a seuerall course from accusation) was wholly mislliked? This might therefore with some more colour (considering that which followeth) haue bene brought against the course of proceeding by accusation, and yet impertinenly e∣nough also. For in the same place 4 1.423 it is recorded thus: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. No small tumult was stirred vp hereupon, for that euery one did accuse whom he listed.

There remaineth yet one quotation to be spoken of, that is to be referred to this place, which he bringeth out of Eusebius 5 1.424 and

Nicephorus; where Adrian the Emperor thus writeth vnto Mi∣nutius Fundanus. If the men of that prouince in iustification of their request can bring and affirme any thing truely and plainly against the Christians, whereby before the tribunall seat by due course of iudge∣ment they may be conuicted: then let them onely bend themselues to that purpose. But I can by no meanes endure it, that they should be put to death, onely vpon the petitions and out-cries of the multitude. But this hath no kinde of shew, either against Accusation or Enquirie of Office. For it condemneth only the mercilesse and cruell iniu∣stice of some Deputies; who to gratifie the clamorous common people, were contented to execute the poore Christians without any proofs.

To this place perteine also the Note-gatherers allegations 1 1.425 out of the Canon law: yet they are so far from impugning pro∣ceeding by way of Enquirie, that they do very especially establish it. Which though he be not ignorant of, and being so plaine, cannot dissemble: neuerthelesse he doth summe them, & with∣all affirmeth (though vntruly) that the bishops proceedings are to the contrarie; whereas all ecclesiasticall Iudges will yeeld vnto him, that those Canons both are and ought to be obserued, so far as the statutes of the Realme doth warrant them; sauing in such points as himselfe hath misreported them. For first, where a Bi∣shop (as was then for the most part vsed, but now by long pre∣scription worne out, which prescription 2 1.426 is also of validitie and force) did in all weighty matters perscrutari diligentiùs causam coram ecclesiae Senioribus: that is, examined thē before his Chap∣ter, or so many of them as would be present; this he peruerteth thus: causa perscrutanda ab ecclesiae Senioribus: as if from the Ca∣non law he could hammer vs out the Lay elderships, that be drea∣med of; and could make them in euery parish the Iudges of that which was onely done by Bishops, coràm, in the presence of the Praebendaries of the Cathedrall Church, but not by them. Se∣condly, whereas only in proceeding against a Prelate it is requi∣red, that the excesse be grieuous; this he doth make generall and indifferent to all enquiries against any whomsoeuer. Thirdly, he hath forged of his owne head besides the text there, that to the entent of degradation, a Iudge ecclesiasticall may not proceed by way of Inquisition, but by accusation onely.

And for specification of such contrarieties as he surmiseth to be in bishops proceedings against those alleged Canons, he first sayth; that their oath is not abiurationis or purgationis. It is true, that besides these two, some oathes which they minister, are ve∣ritatis dicendae, vpon the crime enquired of. Which oath one of his owne Canons by him quoted, might haue taught him, if he had read it ouer. viz. 1 1.427 Coram Inquisitoribus iurantes, tam de se, quàm de alijs, super facto haeresis dicere veritatem. If then in heresie, much more in other crimes. And in truth there is not one word in any of those Canons tending to restreine al othes vnto abiuration & purgation alone; as to any that list peruse them, wil be manifest.

The next contrarietie vnto them he assigneth, 2 1.428 for that Ordi∣naries and Commissioners ecclesiasticall deale by way of Enquiry in o∣ther matters then heresie. Heerein hee childishly mistaketh his booke; and yet will he be dealing in matters, wherein he see∣meth to me, to haue no insight at all, howsoeuer (perhaps) he do flatter himselfe otherwise. For no Canons doe forbid Ordinaries to deale in any matters criminall, being of ecclesiasticall coni∣sance; nor any others in causes duely committed vnto them; whether they deale by the one course of proceeding, or by the other. But Inquisitours for heresie, hauing that matter onely dele∣gated vnto them by their Commission, are in deed there forbid∣den; that by colour thereof, they should not reach out their au∣thoritie, vnto matters no way touching the crime of heresie. So that the prohibition there, is for matters that are out of their Com∣mission; and not for any maner of proceeding. For they may not deale in matters, that are not committed to them, any more vpon Accusation, then they may do by way of Enquirie.

The third contrariety surmised by him to be in Bishops procee∣dings against the Canons 3 1.429 is; that they suffer not publication to be made of the witnesses depositions: which is a meere slander, without any colour of truth. Neuerthelesse, when by publication of the witnesses names that haue deposed in matter of heresie, great perill might grow vnto them through the friends of the impeached, or otherwise: in that case only the Canons (with cer∣teine moderation and cautions) do permit (vpon the Iudges dis∣cretion) the names of the witnesses to be suppressed from the defendant, and to be kept from being published abroad at all.

Thus much concerning obiections made by the Treatiser & Note-gatherer out of the Ciuill and Canon lawes, against all pro∣ceeding of Offfce with offenders.

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 1.430 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 1.431 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 1.432 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 1.433 the spirit of ielousie is vpon him. It is also there said to be done, when 5 1.434 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 1.435 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 1.436 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 1.437 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 1.438 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 1.439 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 1.440 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 1.441 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 1.442 words: If a man be found lying with a woman maried to a mā, then both twaine shall die. And 3 1.443 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 1.444 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 1.445 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 1.446 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 1.447 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 1.448 termed an Accusing in that place, but not properly.

Furthermore, at the only 2 1.449 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 1.450 proceeded without any other partie against the wicked Elders ex mero Officio. For hee was both Iudge, examiner, and Accuser.

By the 4 1.451 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 1.452 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 1.453 came downe to see the Citie and tower of Babel, which the sonnes of men builded. And 2 1.454 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 1.455 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 1.456 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 1.457 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 1.458 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 1.459 three of the Euangelists doe report, that the chiefe Priests and Elders accused him before Pilate: and 2 1.460 as one of them saith, of many things: & as 3 1.461 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 1.462 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 1.463 as they required. What that was, two other Euangelistes doe expresse, viz. that he might be 6 1.464 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 1.465 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 1.466 all condemned him (saith he) to be worthy of death. Thus hauing condemned him, when 2 1.467 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 1.468 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 1.469 They sought false witnesses &c. at the last came two false witnesses &c. & a litle after, what 5 1.470 haue we more neede of witnesses? behold now ye haue heard his blasphemie. And S. Luke 6 1.471 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 1.472 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 1.473 due and Iudicial pro∣ceeding in Councill, howsoeuer the execution of him after was done without iudgement giuen, and 9 1.474 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 1.475 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 1.476 men∣tioned in the Gospel, being conferred with 2 1.477 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 1.478 called Accusers in these wordes, Where be those thine accusers? yet such of 4 1.479 them as were without sinne, were willed by him, to cast the first stone at her: Alluding therein to that lawe, 5 1.480 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 1.481 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 1.482 of Susanna, where the Elders were witnesses, and there were none other Accusers.

So in the 8 1.483 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.

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 1.484 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 1.485 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 1.486 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 1.487 Captaine would know the certain∣tie, wherefore he was accused of the Iewes. Againe, 2 1.488 he was accused of questions of their Lawe: and further 3 1.489 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 1.490 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 1.491 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 1.492 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 1.493 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 1.494 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 1.495 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 1.496 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 1.497 he saith thus: Emeritum certè non decet defendere Optatum, sed fortasse nec accusare.

By the quotation out of 2 1.498 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 1.499 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 1.500 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 1.501 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 1.502 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 1.503 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 1.504 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 * 1.505 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 * 1.506 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.

The ende of the second part.

Notes

• 1 1.1

  Gl. in c. pecca∣tum de reg. Iur. in 6. gl. in c. si pec∣catum. dist. 1. de poenit. August. in quaest. in Leui∣ticum.
• 2 1.2

  Iacob c. 4. V. 17.
• 3 1.3

  c. d. si pecca∣tum.
• 4 1.4

  L. 3. § poena ff. de crim. stellio∣natus.
• 1 1.5

  Plinius.
• 2 1.6

  Aul. Gelli∣us, lib. 6. c. 14.
• 3 1.7

  Aristot. 1. Rhe∣thor.
• 4 1.8

  c. duo. 33. q. 4. c. fraternitas. 12. q. 2. c. qui sincera, &c. disciplina. dist. 45.
• 1 1.9

  L. 1. & 2. ff. de legibus.
• 2 1.10

  L. obseruandū. ff. de ossic. Praes.
• 3 1.11

  Plato in Goe∣gia.
• 4 1.12

  Demosth. con∣tra Neoeram.
• 5 1.13

  Plato 9. de le∣gibus.
• 6 1.14

  Leu. 20. V. 15. & 16. Ioseph. lib. 4. an∣tiqui•…•…. c. fin.
• 7 1.15

  Liuius lib. 7. Plin. lib. 19. c. 3. & 4. & lib. 1. cap. 22.
• 1 1.16

  Aeschines con∣tra Ctesiphon∣tem.
• 2 1.17

  L. 1. C. de falsa moneta.
• 3 1.18

  Arist. 1. Rhet. ad Theod. c. 14.
• 4 1.19

  Lib 3. Var. epist. 14.
• 5 1.20

  c. dilecto. de sent. excomm. 〈◊〉〈◊〉. 6.
• 1 1.21

  August. in ep. Ioan. tract. 7.
• 2 1.22

  Aug. epist. 50. ad Boni•…•…. c. error. dist. 83.
• 3 1.23

  Aug. in Enchi∣rid. cap. 72.
• 4 1.24

  Cassiod. lib. 3. Var. epist. 14.
• 5 1.25

  c. cum tanto. de consuetudine.
• 6 1.26

  Iuo. lib. 8.
• 7 1.27

  Pro Milone.
• 8 1.28

  c. vt clerico∣rum. § 1. de vita & hon. cler.
• 9 1.29

  Serm. 8. in psal. 118. V. 2.
• 10 1.30

  c. sed illud. dist. 45.
• 11 1.31

  Iosua. 7.
• 12 1.32

  1. Sam. c. 4.
• 13 1.33

  1. Reg. c. 2.
• 14 1.34

  Ion. c. 1.
• 15 1.35

  c. sed illud. dist. 45.
• 1 1.36

  l. ita vulnera∣tus. ff. ad l. Aquil.
• 2 1.37

  l. 7. § finali. ff. de fideiuss.
• 3 1.38

  l. aut facta. ff. de Poenis.
• 4 1.39

  l. eum qui. ff. de iniutijs.
• 5 1.40

  Iul. Cla. lib. 5. § fin. q. 3.
• 1 1.41

  L. 1. §. in pro∣pria. ff. Quando appell.
• 2 1.42

  Ric. 2. cap.
• 1 1.43

  l. 1. ff. vi. bon. rapt. l. 2. ff. de tab. exhib.
• 2 1.44

  l. 1 C. Retum amotatum.
• 3 1.45

  l. Arbitrio. vbi gloss. & Bart. ff. qui satisdare co∣guntur,
• 4 1.46

  l. 10. §. Qui nomen. ff. de iure patr.
• 5 1.47

  l. pen. C. de De∣latorib. lib. 10.
• 1 1.48

  Sueto. in Domit.
• 2 1.49

  Plin. in Panegy. de Traiano.
• 3 1.50

  l. nostris C. de Calumniator.
• 4 1.51

  l. ex varia C. de Delatorib. lib. x.
• 5 1.52

  Quintil. lib. vlti. cap. 7.
• 1 1.53

  l. 3. C. de Ma∣lefic.
• 2 1.54

  l. Nulli. in fine, C. de. Epis. & Cleric.
• 3 1.55

  Isidor. vt in c. forus. de verb. signif.
• 4 1.56

  Servius in prim. Aeneid.
• 5 1.57

  l. Qui accusare, C. de edendo. l. Si maritus. § Si negauer. ff. de adulter.
• 6 1.58

  Prouerb. 18. vers. 17.
• 7 1.59

  Plutarch in vi∣ta Publicol.
• 1 1.60

  l. indicasse. ff. de verb. signific.
• 2 1.61

  Vide infr•…•…. cap. 15.
• 3 1.62

  1. Ed. 6. ca. 12. in fine.
• 1 1.63

  5. & 6. Edw. 6. cap. 11.
• 2 1.64

  Tit. Corone. nu. 220.
• 3 1.65

  Brooke. ibid.
• 1 1.66

  l. de his. C. qui accusare non possunt.
• 2 1.67

  l. finali. C. de accus.
• 3 1.68

  l. qui crimen. C. qui accusare non possunt.
• 4 1.69

  Deut. 19. V. 16. & sequent.
• 1 1.70

  Dan. cap. 13.
• 2 1.71

  Epist. 2. ad E∣piscopos Siciliae.
• 3 1.72

  Sixtus 3. Epist. 2. ca. 4. ad Episco∣pos Orientales.
• 4 1.73

  l. 1. C. vt nemo inuitus ag.
• 5 1.74

  l. Manichaeos. C. de haeret.
• 6 1.75

  l. Fin. ff. de priu. delict. l. fin. ff. de furtis.
• 1 1.76

  Arist. lib. 5. Ethic.
• 2 1.77

  Arist. 2. li. Topic.
• 3 1.78

  Plut. in vita Luculli.
• 4 1.79

  Quintil. li. 1•…•…. ca. 7.
• 5 1.80

  Cic. pro 〈◊〉〈◊〉.
• 1 1.81

  Cic. li. 2. Offic.
• 2 1.82

  Apuleius in 2. defens. Mag.
• 1 1.83

  Clarus. q. 10.
• 2 1.84

  Decianus.
• 3 1.85

  Gul. Bened. in c. Rainutius. V. mortuo. nu. 200. de testam.
• 4 1.86

  Clarus li. 5. §. fin. q. 11.
• 5 1.87

  l. 16. C. de ac∣cus. & inscrip.
• 6 1.88

  l. 17. ibidem.
• 1 1.89

  l. Qui crimen. C. Qui accus. non possunt.
• 2 1.90

  Suidas in verbo Bulgar.
• 3 1.91

  Carrer. de Hae. res. cons. 117.
• 4 1.92

  l. 1. ad S. C. Turpillianum.
• 5 1.93

  Gloss. in Clem. 1. de sentent. & re iudicat.
• 1 1.94

  l. 17. C. de ac∣cus. & inscrip.
• 2 1.95

  Damalus ep. 3. ad Steph. Ar∣chiepisc.
• 3 1.96

  Had•…•…ianus 2. q 3. c. qui non.
• 4 1.97

  Sixtus c. 4. in 1. volum. concil.
• 5 1.98

  Concil. Brac∣car. 2. Can. 8. An. Dom. 610.
• 6 1.99

  Gelasius ibid. c. si quis.
• 7 1.100

  l. post legatum. §. Aduocatum. ff. de his quibus vt indignis. l. qui cum maior. §. penult. ff. de bo∣nis libert.
• 8 1.101

  Bart. & alij in l. Si quis in graui. §. vtrum. ff. ad S. C. Syllanianum.
• 1 1.102

  Arist. 6. l. Polit. cap. 5.
• 2 1.103

  l. Hos accusa. §. l. Iulia. ff. de accus. l. cum ra∣tionib. C. qui ac∣cus. non possunt.
• 3 1.104

  l. 20. C. Qui accus. non pos∣sunt.
• 4 1.105

  Cic. pro Mu∣raena.
• 5 1.106

  Cic. li. 2. Offic.
• 1 1.107

  Tacitus. l. 3. Annalium.
• 2 1.108

  Senec. li. 3. de benefic.
• 3 1.109

  August. li. 1. confess. cap. 18.
• 4 1.110

  August. in Ser∣mone Domini in monte.
• 5 1.111

  c. Si quis episc. 2. q. 7.
• 6 1.112

  Anaclet. ep. 1. de oppres. episco∣porum.
• 1 1.113

  Leu. cap. 19. V. 16.
• 2 1.114

  Vers. 18. ibid.
• 3 1.115

  Ecclesiasticus cap. 10. V. 6.
• 4 1.116

  Matth. 5. V. 38 & 39.
• 5 1.117

  Vers. 44. ibid.
• 6 1.118

  Luke cap. 6. V. 27. &c.
• 7 1.119

  1. Cor. 6. V. 7.
• 8 1.120

  August. in ser. Domini in mōte.
• 9 1.121

  August. ibid.
• 10 1.122

  Plato in Eu∣thyph.
• 1 1.123

  Quintil. siue Tacitus de claris Orator.
• 2 1.124

  Pro S. Roscio Amer.
• 1 1.125

  L. ea quidem C. de accus. & inscrip.
• 2 1.126

  L. 1. C. de Ap. parit. Procoss. lib. 12.
• 3 1.127

  L. 11. C. de Nu∣merarijs, Actua∣rijs. li. 12.
• 4 1.128

  L. 1. C. de offic. Comitis sacri pa∣trimonij.
• 5 1.129

  L. 56. ff. locati. l. 51. §. fin. ff. de act. empti.
• 6 1.130

  L. Si longiùs. §. 1 ff de iudic. l. cum siliusfam. ff. de reb. credi∣tis. l. 7. C. de iudic. & alibi passim.
• 1 1.131

  L. 5. ff. de ex∣traord. cognit.
• 2 1.132

  Callistratus ibid.
• 3 1.133

  Ouid. lib. 1. de Tristib.
• 4 1.134

  Bartol. in l. transigere. nu. 13. C. de trans∣action.
• 5 1.135

  l. 1. § item illud. ff. de S. C. Syllan.
• 6 1.136

  Virgil. 6. Aeneid.
• 1 1.137

  Tullie in Bruto & pro Cluentio.
• 2 1.138

  Vide totum ti∣tulum ff. de ex∣traord. crimin. & titulos plurimos sequentes.
• 3 1.139

  Liui. lib. 19.
• 1 1.140

  l. 1. ff. de Offic. Praefect. vrbi.
• 2 1.141

  c. Super his. de accusat.
• 3 1.142

  Bart. in l. infa∣mem. ff. de public. iud. Bald. in l. 4. §. 1. ff. de con∣dict. ob turpem causam.
• 4 1.143

  Tho. 2. 2. q. 3. 3. art. 6.
• 1 1.144

  l. Absentem. ff. de poenis.
• 2 1.145

  Abbas in ca. inquis. de accu∣sat.
• 1 1.146

  Bald. in l. ea quidem. C. de accusat.
• 2 1.147

  l. 1. C. de falsa moneta. l. 1. C. de rapt. Virgin.
• 3 1.148

  Summa Anto∣nini. part. 3. t. 9. c. 7.
• 4 1.149

  Abbas in e. cum dilectis. de Purg. canonica.
• 1 1.150

  Crauetta. Con∣sil. 238. nu. 7.
• 2 1.151

  Alph. lib. 3. c. 11.
• 3 1.152

  Arg. c. in no∣str. de procur. & in c. ad audi∣entiam. de prae∣scrip.
• 4 1.153

  l. iniuriarū. §. 1. ff. de iniurijs.
• 5 1.154

  Panor. in c. qualiter. el. 2. de accusat.
• 6 1.155

  Pan. ibid. & alij DD.
• 1 1.156

  Arg. c. in nostr. de procur. &c. ad audientiam de praescrip.
• 2 1.157

  Hostiens. in c. cum clamor. de testibus.
• 4 1.158

  Arg. c. cum cla∣mor. de testibus.
• 1 1.159

  Spec. tit. de de∣•…•…unc, nu. 16.
• 1 1.160

  L. Res quae. § vlt. ft. ad S. C. Turpill.
• 2 1.161

  L. 1. C. de cu∣stodia reorum.
• 3 1.162

  L. pen. ff. de via publica. Dion Cassius li. 54.
• 4 1.163

  L. D. Adrianus. ff de custod. & exhib. reis.
• 1 1.164

  L. vlt. ff. de mun. & honor.
• 2 1.165

  L. 1. §. fin. ff. de offic. prae•…•…. vrbi.
• 3 1.166

  L. 1. C. de cu∣riosis & Statio∣nar. li. 12.
• 4 1.167

  L. 7. ea quidem. C. de Accusat.
• 5 1.168

  L. 1. C de pri∣uat. carcer.
• 6 1.169

  L. Qui sepul. chra. C. de sepul. viol.
• 7 1.170

  Bartol. in l. Di∣uus. ff. de custo∣dia reorum. An∣gelus in l. Si Va∣cantia. C. de bo∣nis vacantib.
• 1 1.171

  Luk 18. V. 3.
• 2 1.172

  L. delator. ff. de iure fisci.
• 3 1.173

  Matt. 18. V. 15
• 4 1.174

  Spec. tit. d.
• 5 1.175

  Panor. c. no∣uit. de iudic.
• 6 1.176

  Alph. li. 2. ca. 9. conclus. vlt. pract. Can. Criminalis.
• 1 1.177

  Ricar. in 4. Sent. dist. 19.
• 2 1.178

  Thom. 2. 2. q. 33. art 2. & Ri∣car. vbi supra.
• 3 1.179

  Gabr. Biel.
• 4 1.180

  Petrus de Pa∣lude. in. 4. Sent. 19. q. 4.
• 5 1.181

  Thom. 2. 2. q. 33. art. 2.
• 6 1.182

  1. Tim. 5.
• 7 1.183

  Ricar. vbi su∣pra.
• 1 1.184

  August. ad Ma∣cedonium.
• 2 1.185

  August. ibid.
• 3 1.186

  10. And. & alij DD. in c. Nouit. de iudicijs.
• 4 1.187

  l. Dious. ff. de Cust. & exh. reis. l. ea quidē. C. de accusationib. l. 1. §. sanè ff. de off. Praef. vrbi. c. epis∣copus in Synodo. 35. q. 6.
• 1 1.188

  vel alieni. l. 1. §. Quid autem. ff. de off. praef. vrb.
• * 1.189

  §. pen. Inst. de his qui sunt sui
• 2 1.190

  Innoc. in c. In∣sinuante. Qui cler. vel vov.
• 3 1.191

  c. 1. de offi. Custod. c. licet Heli. de simon.
• 4 1.192

  c. praeterea. de Sponsalib. c. cum inhibitio. de cland. despons.
• 5 1.193

  Specul. tit. de Denunt. §. 2. vers. vt. autem.
• 1 1.194

  Pan. in c. noult. de Iudiciis. addie. Vlt.
• 2 1.195

  c. Causam. Qui filii sint legitimi. c. Quapropter. 2. q. 7. c. Quisquis. 1. q. 1. c. primo. 5. q. 5.
• 3 1.196

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Mat. 18. V. 16.
• 4 1.197

  Alphons. Villa. li. 2. de denunc. Cano. concl. 8.
• 1 1.198

  Salycetus in l. ea quidem. C. de accus. Clarus. li. 5. §. fin. q. 7.
• 2 1.199

  Clarus vbi su∣pra. vers. Sed quaero.
• 3 1.200

  Alph vbi supra.
• 1 1.201

  l. 2. C. qui aceu∣sare non possunt.
• 2 1.202

  Gloss. final. in c. dilecti. de dolo & contumacia. vide Angel. de malef. & Marian. c. Qualiter. cl. 2. de accusat.
• 3 1.203

  August. Hom. 50. de poeniten∣tia.
• 4 1.204

  l. cum fratrem. C. de his quib. vt indignis.
• 5 1.205

  l. Quamuis, C. de adult.
• 6 1.206

  l. 1. C. de falsâ Monetâ.
• 7 1.207

  l. Miles. §. mu∣lier. ff. de adulter.
• 8 1.208

  c. de Sent. excom.
• 9 1.209

  Gl. in c. Pau∣lum. 2. q. 3.
• 10 1.210

  10. And. in c. cum dilect. de Elect.
• 1 1.211

  7. & 5. Eliz. 1. Eliz. cap. 2. 13. El. cap. 12.
• 1 1.212

  l. libellorum. ff de accus. l. 5. C. de his qui accu∣sare non possunt.
• 1 1.213

  Duaren. disput. anniuer. li. 1. c. 38.
• 2 1.214

  l. Rescrip. § si quis. ff. de mu∣nerib. & honor.
• 1 1.215

  L. 1. §. Quo∣ties. ff. de offic. prat. vibi. l 4. ff. ad L. Iuli. pe∣cul. l. 3 ff. de offi. praes. §. vlt. D. Collat. in Nou•…•…l. l. 1. C. de custod. reorum. l. si quis in hoc. C. de epis.
• 2 1.216

  Lib. 10. epist. Plinij.
• 3 1.217

  L. 4. §. 1. ff. ad L. Iul. Peculatus.
• 4 1.218

  c. qualiter el. 2. deaccusat.
• 1 1.219

  Salycetus in l. fin. C. de Quaest. Iul. Clarus. lib. 5. §. fin. q 11.
• 2 1.220

  Ferretus. Con∣sil. 31. num. 11.
• 3 1.221

  Panor. in c. In∣quisitionis. de ac∣cusat.
• 1 1.222

  Cic. in Topicis.
• 2 1.223

  Cornel. Fronto in differentijs.
• 3 1.224

  Plutar. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• 4 1.225

  Hesiodus.
• 5 1.226

  Arg. l. sin. ff. de haered. institu∣endis.
• 6 1.227

  c. Sanctum. dist. 4. de con secrat.
• 7 1.228

  c. Cum in iu∣uentute de purg. Can. l. Decurio∣nes. C. de poenis.
• 8 1.229

  c. Tua nos. de cohab. cler. & mulier.
• 9 1.230

  D D. in l. Si∣quidem. C. de adulter.
• 10 1.231

  L. vbi adhuc. C. de iure dot.
• 1 1.232

  D D. in c. Ve∣niens de testio.
• 2 1.233

  c. inquisitionis. in fin de Accus.
• 3 1.234

  Panor. in c. cū oporteat. de Ac∣cus.
• 4 1.235

  c. super co. de co qui cognouit consang. vxor.
• 5 1.236

  Card. A'exan. in c. de Accus. col. 14.
• 6 1.237

  Alph. Villag. li. 3. c. 6 conc. 3.
• 7 1.238

  Petr. de Palud. in 4. Sent. 19. q 4.
• 8 1.239

  Thom. 2. 2.
• 9 1.240

  Gen. 4. V. 10.
• 10 1.241

  Panor. c. Ter∣tio loco. de pro∣bat. &c. Tua nos. de appellat.
• 1 1.242

  Clarus vbi su∣pra. q. 6.
• 2 1.243

  Panor. in c. cum oporteat, de accusationib.
• 3 1.244

  Felyn. in c. Qualiter. el. 2. de accusat. Clar. q. 6.
• 4 1.245

  Bald. in l. Nul∣lus. nu. 1. C. ad l. Iul. Maiest. Innoc. in c. cū oporteat. nu. 5. de accusat.
• 5 1.246

  Abbas. in c. 1. de offi. Ordinar.
• 6 1.247

  Innoc. in c. Qualiter. el. 2. de accusat.
• 1 1.248

  Panor. in c. qualiter. el. 2. de accus.
• 2 1.249

  Clarus. vbi su∣pra. q. 6. Alphons. Villag. passim.
• 3 1.250

  c. qualiter. el. 2. de accus. &c. licet Heli. de Simonia.
• 1 1.251

  Bald. in l. Man∣cipia. C. de seru. fugit. nu. 1.
• 2 1.252

  Bald. in l. inue∣nimus. C. de pro∣bat.
• 3 1.253

  Pract. Conradi. fol. 236. nu. 21.
• 4 1.254

  Clarus. ibid. q. 7.
• 5 1.255

  Alberic. in l. ea quidem. c. de ac∣cus. nu. 9.
• 6 1.256

  Angel. de Ma∣leficijs.
• 7 1.257

  Clarus. ibid. q. 12.
• 8 1.258

  Bossius. tit. de Inquisit. nu. 27.
• 1 1.259

  Bartol. in l. congruit. ff. de offic. praes.
• 2 1.260

  Alphon. Villag. lib. 3. c. 15. con∣clu. 8.
• 3 1.261

  Arg. l. Indicia. 19. C. de rei vin∣dicatione.
• 4 1.262

  l. Solent. ff. de Praescript.
• 5 1.263

  Clarus. §. fin. q. 20.
• 6 1.264

  Salycetus in l. ta quidem. c. de Accusat.
• 7 1.265

  Cic. pro Rosc. Ametino.
• 1 1.266

  Bartol in l. fin. ff. de Quaestion.
• 2 1.267

  •…•…nor. c. 3. loco dt •…•…oat.
• 3 1.268

  Clarus. li. 5. § fin. qu. 63. & ibi remissiuè.
• 4 1.269

  Practica. Car. fol. 72.
• 5 1.270

  1. Reg. c. 3. V 27. c. afferte de praesumpt.
• 1 1.271

  l. 3. § 1. ff. de Testib.
• 2 1.272

  Angel. de ma∣lef. ver. fama pub∣li. nu. 9. Pract. Ca∣soni. fol. 14. nu. 2.
• 3 1.273

  Ioan. 8.
• 4 1.274

  Clar. ibid. qu. 8.
• 5 1.275

  Cynus in l. ea quidem. C. de ac∣cusat.
• 6 1.276

  Aug. super Gen. c. euiden∣tia. de accusat.
• 7 1.277

  ••. Tua nos. de cohab. cler. & mulier.
• 1 1.278

  c. Tua. ibid.
• 2 1.279

  l. Diuus. § Nu•…•…∣tiatoris. ff. ad S. C. Turpillian.
• 3 1.280

  l. ea quidem. C. de accusat.
• 4 1.281

  Vide August. epist. 150. & 160. & Trebel. Pol. in Claudio.
• 5 1.282

  Clarus. ibid. qu. 9.
• 6 1.283

  Pract. Conrad. fol. 240.
• 7 1.284

  Ferret. Cons. 31. nu. 5. & 35.
• 8 1.285

  Lud. Rom. in l. & si certus. ff. ad S. C. Syllan.
• 9 1.286

  Bart. in l. 2. ff. de adult. § si. publico.
• 10 1.287

  Clarus. ibid. q. 21.
• 1 1.288

  Arg. l. Si quis in hoc. C. de Epis. & Clericis. Bart. in l. 2. ff. ad l. Iul. de adulterijs.
• 2 1.289

  Alph. Villag li. 3. c. 17. concl. 18.
• 3 1.290

  Bart. in l. inter omnes. § rectè. ff. de furtis.
• 4 1.291

  gl. in c. 1. de elect. c. 2. de ac∣cus. in 6.
• 5 1.292

  Aretin. in c. Qualiter. cl. 〈◊〉〈◊〉. de accusat. Foller. Pract. cri. fol. 102.
• 6 1.293

  Alph. li. 10. concl. 5.
• 1 1.294

  25. H. 8. c. 19.
• 1 1.295

  7. H. 5. ca. vnico.
• 2 1.296

  3. H. 5. ca. vnico.
• 3 1.297

  8. H. 5. ca. 3.
• 1 1.298

  10. H. 7. fol. 17.
• 1 1.299

  3. Ed. x. ca. 12.
• 2 1.300

  19. H. 7. ca. 14.
• 3 1.301

  Ibidem.
• 1 1.302

  1. Eliz. ca. 1.
• 2 1.303

  1. Eliz. ca. 2.
• 3 1.304

  Magna Char∣ta. cap. 1.
• 1 1.305

  1. Eliz. ca. 2.
• 2 1.306

  11. H. 7. ca. 3.
• * 1.307

  Note gathe∣rer.
• 3 1.308

  1. H. 8. ca. 6.
• * 1.309

  1. Hen. 8. c. 6.
• * 1.310

  31. Hen. 8. c. 14.
• * 1.311

  5. & 6. Edw. 6. cap. 25.
• * 1.312

  25. H. 8. ca. 14.
• * 1.313

  Ibidem.
• * 1.314

  The Angels re∣ioyce at the con∣uersion of a sin∣ner, and doe not vpbraide.
• 1 1.315

  Clarus. ibid. q. 7
• 2 1.316

  Practica Millei fol. 3. nu. 31.
• 3 1.317

  Clarus. ibid. q. 10.
• 1 1.318

  Decius consi∣lio 170. nu. 1.
• 2 1.319

  Clarus ibid. q. 12.
• 1 1.320

  Clarus ibid. q. 6.
• 1 1.321

  Ioh. Andr. in add. ad Spec. tit. deinquisitionib.
• 1 1.322

  c, 1. de elect. in 6.
• 1 1.323

  In his title of Inconueniences.
• 1 1.324

  Bartol. in 1. Diuus. ff. de cu∣stod. reorum.
• * 1.325

  2. Hen. 5. ca. 3. Register. pag. 58.
• 1 1.326

  Inter epist. Caluini in folio: pag. 421. & 422.
• 2 1.327

  Two meanes to occasion En∣quirie and exa∣mination of Of∣fice, euen at Ge∣neua.
• 1 1.328

  Albericus de Rosate. in rub. C. de haeret. nu. 6.
• 1 1.329

  Mag. Charta. cap. 26.
• 1 1.330

  3. Ed. 1. cap. 13.
• 2 1.331

  Star. de Inquis. capiend. 33. Ed. 1.
• 3 1.332

  18. Edw. 3. pro Clero. c. 2.
• 4 1.333

  42. Ed. 3. c. 4.
• 5 1.334

  8. H. 6. c. 16.
• 6 1.335

  11 H. 7. c. 25. & 1. H. 8 c. 12.
• 7 1.336

  M. 20. H. 6. 38.
• 8 1.337

  34. Edw. 3. 3.
• 9 1.338

  11. H. 4. 17.
• 10 1.339

  Assis. lib. 16. pag. 4.
• 11 1.340

  Assis. lib. 27. pag. 138.
• 1 1.341

  Bracton. li. 4. c. 8. fol. 302.
• 2 1.342

  M. 22. Ed. 4. 23.
• 3 1.343

  2. H. 5. cap. 1.
• 4 1.344

  1. H. 7. cap. 4.
• 1 1.345

  23. H. 8. ca. 9.
• 2 1.346

  27. H. 8. ca. 10
• 3 1.347

  1. Ed. 6. cap. 2.
• 4 1.348

  1. Eliz. cap. 2.
• 1 1.349

  7. H. 4. 18.
• 2 1.350

  M. 20. E. 4. 10.
• 3 1.351

  T. 12. H. 7. sol. 22.
• 4 1.352

  Assis. lib. 22. pag. 70.
• 5 1.353

  Fitzh. nou. nat. breu. tit. Consultation, fol. 50. &c.
• 6 1.354

  Nou. nat. br. pag. 64. E.
• 7 1.355

  Ibid. litera F.
• 8 1.356

  Liberties of the Clergie, out of the lawes of the realme, by Iohn Gooddall. Printed by Rob. Wier.
• 9 1.357

  Ibid.
• 1 1.358

  Ibid. ex Re∣gist. in br. orig. pag. 45. a.
• 2 1.359

  Berous in rubr. de accusa∣tionibus, nu. 10.
• 3 1.360

  Register, pag. 54 b.
• 4 1.361

  Register. pag. 57. b.
• 5 1.362

  Register. pag. 57. a.
• 6 1.363

  Register. pag. 54 b.
• 7 1.364

  Vide 3. part. c.
• 8 1.365

  Register. pag. 51. b.
• 1 1.366

  Register. pag. 50. b.
• 2 1.367

  Register. pag. 44. b.
• 3 1.368

  Reg. pag. 45. a.
• 4 1.369

  Reg. pag. 51. a.
• 5 1.370

  Reg. pag. 51. b. & 52. a.
• 6 1.371

  Reg. pag. 51. a.
• 1 1.372

  Changed by the statute, 28. H. 8.
• 2 1.373

  Reg. pag. 57. B.
• 3 1.374

  Aristot. in Rhetoric.
• 1 1.375

  1. Edw. 6. c. 12.
• 2 1.376

  1 & 2. Ph. & Mar. cap. 10.
• 1 1.377

  1. Eliz. cap. 1.
• 2 1.378

  31. H. 8. ca. 14.
• 1 1.379

  Of diuision be∣twixt the tempo∣raltie and spiritu∣altie. cap. 7.
• 1 1.380

  Aduertisement of an errour.
• 2 1.381

  Defence of Priests marria∣ges. pag. 175.
• 1 1.382

  Iniunction. 50.
• 1 1.383

  Archid. in c. foelicis §. sin. de pactis in 6. & Marianus in c. qualiter & quan∣do. de accus. nu. 108.
• 2 1.384

  Abb. in c. 1. de officio Ordinarii.
• 3 1.385

  Angel. in §. fin. Auth. quom. oport. epis.
• 1 1.386

  Liuius lib. 39.
• 2 1.387

  L. 12. ff. de peric. rei vend. l. 14 ff locati. l. 12. ff. de decu∣rion bus.
• 3 1.388

  Tertullian. in Apolog. ca. 2.
• 4 1.389

  Tertullian. ibid. c. 4.
• 5 1.390

  L. 3. §. Prae∣terea. ff. desuspect. tutoribus.
• 6 1.391

  Gloss. in l. 2. §. si publico. ff. de adult.
• 7 1.392

  Gandinus de malefic. tit. quo∣modo cognos. nu. 6. & passim alii.
• 8 1.393

  Bald. in l. 1. §. in initio. ff. de offic. praesidis.
• 1 1.394

  Prae. Millei. fol. 3. nu. 31.
• 2 1.395

  Angel. de ma∣lef. ver. haec est quaedam. & ibi Aug. in addit. a. nu. 12. vsque ad 48.
• 3 1.396

  Io. Andr. in add. Specul. tit. de Inquisitione. §. quando autem.
• 4 1.397

  Decius cons. 170. nu. 1. quòd est communis opinio.
• 5 1.398

  Bald. in l. 1. C. qui accusare non possunt.
• 6 1.399

  Bartolus in l. inter omnes §. rectè ff. de furtis.
• 7 1.400

  D D. in c. qua∣liter. el. 2. de accus.
• 8 1.401

  Innoc in d. ca.
• 9 1.402

  Card. Alex∣and. in c. de ac∣cusat. col. 39.
• 10 1.403

  Plerique om∣nes D D.
• 11 1.404

  Clarus lib. 5. § fin. qu. 49.
• 1 1.405

  c. qualiter & quando cl. 2. de accusat.
• 2 1.406

  Bartol. in l. congruit. ff. de Off. praesidis.
• 3 1.407

  Specul. Mar∣ran. de Inquisit. nu. 39.
• 4 1.408

  Ibid. nu. 48.
• 4 1.409

  Decius con∣silio 342. nu. 8.
• 1 1.410

  Vide preamb. stat. 25. H. 8. c. 21.
• 2 1.411

  l. 1. C. de Vet. iure emendando.
• 1 1.412

  Paul. Diaco•…•… lib. 10. in v. ta Traiani.
• 2 1.413

  Tertul Apolog. c. 2. Nicephor. li. 3. ca. 17.
• 3 1.414

  2. part. c. 7.
• 4 1.415

  Tertul. Apolog. cap. 2. 1
• 1 1.416

  Tertul. Apolo. c. 6. Niceph. li. 4. cap. 12.
• * 1.417

  The olde Ciuill lawes appointed enquiries.
• 2 1.418

  Tertul. Apolog. cap. 5.
• 3 1.419

  Niceph. li. 4. c. 12.
• 1 1.420

  Euseb l. 4. c. 12.
• 2 1.421

  Niceph. li. 3. c. 28.
• 3 1.422

  Xiph. in Ne•…•…ua.
• 4 1.423

  Ibidem.
• 5 1.424

  Euseb. li. 4. c. 9. Niceph. li. 3. e. 37.
• 1 1.425

  c. qualiter & quando. el. 2. de accusat. c. ad abolendam. &c. excommunica∣mus. § Qui au∣tem. de haereticis. c. cum contuma∣cia. de haereticis. in 6.
• 2 1.426

  Panor. d. c. Qualiter.
• 1 1.427

  c. accusatus. §. licet verò. de haeret. in 6.
• 2 1.428

  c. accusatus. de haeret. in 6. Clem. 1. de haereticis.
• 3 1.429

  c. statuta. de haeret. in 6.
• 1 1.430

  Gene. 38. V. 24. & 25.
• 2 1.431

  Gen. 44. V. 5, 6, 7, 8, 9, & 10.
• 3 1.432

  Num. 5. V. 12. & deinceps.
• 4 1.433

  Vers. 14.
• 5 1.434

  Vers. 13.
• 1 1.435

  Ibid. V. 31.
• 2 1.436

  Deut. 13. V. 6, 7, 8, 9, 10.
• 3 1.437

  Mat. 26. V. 52.
• 4 1.438

  Deut. 17. V. 7.
• 5 1.439

  Nomb. 35. V. 30. Deut. 17. V. 6.
• 6 1.440

  Deut. 13. V. 12 13, 14, 15.
• 1 1.441

  Deut. 17. V. 4, 5
• 2 1.442

  Deut. 22. V. 22.
• 3 1.443

  Ibid. V. 28.
• 4 1.444

  Iosu. 9. V. 22, 23.
• 5 1.445

  Iosu. 22. V. 11. &c.
• 6 1.446

  2. Reg. 5.
• 7 1.447

  Act. 22. & 23.
• 1 1.448

  Acts. 22. V. 30. & 23. V. 6.
• 2 1.449

  Deut. c. 22. V. 14. &c.
• 3 1.450

  Dan. 13. V. 51. & sic deinceps.
• 4 1.451

  Luke 16. V. 2.
• 5 1.452

  Acts. 5. V. 3. &c.
• 1 1.453

  Gen. 11. V. 5.
• 2 1.454

  Gen. 18. V. 20. & 21.
• 3 1.455

  1. Cor. cap. 5. V. 1. &c.
• 4 1.456

  Nom. 35. V. 30
• 5 1.457

  Deut. 25. V. 1, 2, 3.
• 6 1.458

  Act. 19. V. 38.
• 1 1.459

  Mat. 27. V. 12. Luke 23. V. 2.
• 2 1.460

  Mark. 15. V. 3.
• 3 1.461

  Luk. 23. V. 10.
• 4 1.462

  Ioh. 19. V. 31.
• 5 1.463

  Luk. 23. V. 24.
• 6 1.464

  Mat. 27. V. 23. Iohn 19. V. 16.
• 7 1.465

  Vers. 65. 66.
• 1 1.466

  Mar. 14. V. 64.
• 2 1.467

  Mat. 27. V. 1. 2
• 3 1.468

  Ibid. V. 3.
• 4 1.469

  Mat. 26. V. 59, 60.
• 5 1.470

  Ibid. V. 65.
• 6 1.471

  Luk. 22. V. vlt.
• 7 1.472

  Act. 6. V. 11. 13
• 8 1.473

  Ibid. V. 15.
• 9 1.474

  Act. 7. V. 57, 58, 59.
• 10 1.475

  1. Reg. cap. 21. V. 9, 10, 11, 12, 13.
• 1 1.476

  Ioh. 8. cap. 10.
• 2 1.477

  Deut. 17.
• 3 1.478

  Ioh. 8. V. 10.
• 4 1.479

  Verse 7.
• 5 1.480

  Deut. 17. V. 7.
• 6 1.481

  Deut. ca. 19. V. 15, 16, 17, 18, 19.
• 7 1.482

  Dan. 13. V. 34, 40, & 62.
• 8 1.483

  Deu. cap. 21. V. 18, 19, &c.
• 1 1.484

  Act. 25. V. 16.
• 2 1.485

  Act. 23. V. vlt.
• 3 1.486

  Cicero 2. offic. Plutar. in Lucul.
• 1 1.487

  Acts. 22. V. vlt.
• 2 1.488

  Acts. 33. V. 29.
• 3 1.489

  Acts. 23. V. 30.
• 4 1.490

  Acts. 24. V. 2.
• 5 1.491

  Acts. 25. V. 7. & 18.
• 6 1.492

  Acts. 22. V. 24.
• 1 1.493

  Duodecim Tab.
• 2 1.494

  Ambr. li. 8. •…•…pist. 64.
• 1 1.495

  Sermone suo accusationem de∣tulit: aures tuas impleuit clamo∣re: testes audi∣tionis deduxit: cognitionem po∣poscit.
• 1 1.496

  August. Epist. 137.
• 1 1.497

  August. Ep. 164.
• 2 1.498

  Greg. Ep. ex Regist. li. 5. ca. 125.
• 1 1.499

  Basil. Ep. 70.
• 2 1.500

  Marcel. ad Maxentium, inter opera Clementis,
• 1 1.501

  Damasus Pa∣pa Ep. 3. ad Steph. & Concil. Afric. in 1. vol. Concil.
• 2 1.502

  Leges seculi.
• 3 1.503

  Discipl. of France. tit. Eccles. Senate or Con∣sistorie. Art. 11. being the 6. Ar∣ticle in the Sy∣node at Lions.
• 1 1.504

  Calu. Farello. pa 64. Epistola∣rum in folio.
• * 1.505

  Cartwrightes al∣legation against the othe ex officia in a criminall cause, by Caluin answered long agoe.
• * 1.506

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