Section 11

How justly may I say, Readers, of these men as the King of Israel said of the King of Syria: See I beseech you, how they seek a quarrel against me? My just defense was, that our Bishops are the same in substance, and effect, with those which were ordained by the Apostles: they come now, and tell me, of an oath ex officio, used in the high Commission, and in our Consistories; as if every particular manner of proceeding in our Courts, and judicatures must either be patterned by the Apostolic, or else they are utterly unjustifiable. Why do they not as well challenge us, that we give men the book to touch, and kiss, in taking an oath? Why do they not ask, how we can prove that those Apostolic Bishops had Notaries, Registers, Advocates, Consistories? What frivolous and delusory exceptions are these to all wise men; and how strangely savoring of a weak judgment, and strong malice? As for your cavil at the oath ex officio, since you will needs draw it in by head and shoulders; however little it concerns us, I return you this answer — That, if any of our profession have in the pressing of it exceeded the lawful bounds, I excuse him not, I defend him not; let him bear away his own load; but in these, surely there is more to be said for it, than you will seem to take notice of. You ask for any precedent of it, in good antiquity: I give a precedent as ancient as Moses (Exodus 2:10-11), and that other oath and real imprecation, in the cause of jealousy (Numbers 5:19). But perhaps it will fit you better, that I instance in M. Calvin's case, who together with the Consistory of Elders, appointed the said oath to be given to Camperell a Minister of Geneva, and to the other parties accused of an offensive dancing in the house of widow Balthasar, in which corporal oath three interrogatories being put to the deponents, two of them are said to be concerning their purposes and intentions. If yet you call for other precedents, I call your eyes home, and will you to look into our Courts of King's Bench, Common Pleas, Exchequer, Star-chamber, wherein the defendant is ordinarily put to answer the bill, and interrogatories, upon oath. As for that old maxim of Nemo tenetur prodere seipsum, you may (if it please you) object it as well to Moses, to Calvin, to our Courts; it is easily thus satisfied, that no man is bound at the suit of a party, so to answer criminous articles, or such as are Propinqui actus, (as lawyers interpret it;) but as Petrus de Ferrariis well determines it, Proditus per famam; tenetur seipsum ostendere, and purgare; when a fame accuses him he may clear himself by an oath. It is to be presupposed, that a man is brought into question by some of those lawful means, which open a way to a further inquiry; and then (as Aquinas well) if there be a Semi-plena probatio, or a strong fame, or evident tokens, an oath is seasonably imposed. But surely, the intention of the oath is quite mistaken, for it is meant to acquit and justify, not to accuse; neither is any man pressed to answer further, than he is bound in law: neither are the compulsions simple and absolute, but only causative, as the learned Apologist has fully declared. If then a Dioclesian or Maximilian (as you call him) shall enact, that the adverse party shall not be required to exhibit such evidences as should create troubles to themselves, it is no other than is every where practiced in all Courts of Judicature, and may well stand with the oath ex officio, as it is formerly limited. Be advised therefore (till you understand the case better) to forbear to talk of the lamp of nature, in the night of Ethnicism; but know, that the light of the law of God, and right reason and common practice, give sufficient allowance to that which your misprision cavils at, in those, whom you ought to acknowledge the Fathers of the Church. You tell us of the custom of the Church, and proceedings in the time of Athanasius, and the rule of Gratian; as if we disallowed those just courses, where there is a direct and manifest accusation and evident proofs to be had; but what does this hinder, that in case of a justly grounded suspicion, and a complaint of a half-proved offense, a man should manifest his innocence by oath? That you might seem to have seen the Canon-law, you tell us that in some cases, it allows trial without witnesses, namely, where the crime may be justly called notorious — and then deeply expound notorium, by manifestum, therein plainly contradicting yourselves; for, if that be manifest which is lawfully known, by confession, or by probation, or by the evidence of the thing; what probation can there be, (besides confession and evidence) without witnesses? But this error is as trifling, as your accusation; and after all this waste of words, notwithstanding some personal abuses of Officers in undue processes of their Courts, our Bishops and the former are not two.