The.xvi. chapy • er

HIs.xvi. chapyter begynn[…]th in ye.liiii. lefe, wherin he fyrste recyteth agayne hys own wordes writen in his boke of diuisyon wherin he disputed agaynst the lawe in the chapyter Accusatus, perag. Licet, wherby yt is ordyned yt though one beynge accused & sworne confesse nothyng, and yet afterward he confesseth bothe of hym selfe and other, such thynges as it may wel appere, that yf he were not forsworen in the secunde, he was forsworen in the fyrste, and yet that lawe there admytteth hym for a witnesse in ye same court and in that mater of heresye, yf there appere manifeste tokēs that he doth it not of lightnesse of mynde, nor of hatered, nor for other corrupcyon / whych he sayth is therfore a daungerouse law, and more lyke to cause vntrew and vnlawfull men to cōdemne innocētes, then to cōdēpne offenders.

And you shall vnderstand good reders, yt in his boke of diuisyon, he not onely dyd impugne the lawe that he speketh of here / but also a nother chapyter In fidei fauorem, bycause that therby suche as are accursed, & suche as are partyes to the same offence, shalbe wytnesse in heresye.

This reason of his good reader, all be yt that me then thought and yet thynke so vnresonable, that I r[…]kened yt lytle worth the answeryng, as a reason reproued by ye comen law & by the course & vsage of all realmes chrystened, and in other crymes bysyde heresye playnesy reproued, and y• cōtrary wel vsed in this realm here also: yet in ye.xli. chapiter of myn apo logi[…] fo. cc.xxviii in this maner wyse I answered hym.

This pyece concernynge the testymonye of knowen euyll persons to be receyued and taken in heresye / I haue somewhat touched in the thyrde chapyter of the thyrde boke of my dyaloge / where syth they maye reade yt that wyll, I wyll make here no longe tale agayne therof. But well he woteth that heresye, wherby a Chrysten man becometh a false traitour to god is in all lawes spyrytuall and temporall bothe, accōpted as great a cryme as is the treason commytted agaynst any worldely man. And then why sholde we fynde so great a faute, that suche wytnesse sholde be receyued in a cause of heresye, as are receyued not onely in a cause of treason, but of murder also, and of other more syngle felonye / not onely in fauour of the prynce, and detestacyon of such odyouse crymes, but also for the necessyte whyche the nature of the mater wurketh in y• profe. But syth euyl folke vse not to make good folke of counsayle in doynge of theyre euyll dedes / those that are done, shold passe vnpunyshed, and mo lyke be commytted a freshe, but yf they were receyued for recordes to theyre condempnynge, that were of theyre counsayle and perteners to the doynge. whyche kynde of folke wyll not lette to swere twyse nay, before they confesse ones ye / and yet theyr one ye more trewe vppon theyr bare worde, then theyre twyse naye vppon a solempne othe / and yet confesse they not so symplye, but that it is commenly holpen wyth some suche cyrcumstaunces as make the mater more clere.

Nowe as to those thyngꝭ that I wrote in my dialoge cōcernyng great crymynouse wytnesses to be taken in great criminall causes, he answereth wyth no worde at all. How be yt to say the trouth he the lesse neded. For he geueth ouer here, al that faute that he founde in the chapyter In fidei fauorem, as a thynge[…] wherin hym self seeth now that he was ouersene than and therfore he setteth that here passe by, as though he hadde neuer spoken therof, and stycketh onely vppon yt one case of hym yt is ones forsworen.

But now let vs se what he sayth here cōcernynge this selfe same case. Fyrst he saith yt ye lawes, though they must deuyse suche waysas euyll persons maye be punyshed: yet the makers of the lawes must (as mych as in them is) prouyde that innocentes shalbe saued harmelesse. This is very trew as myche as in them is / the tother poynt beynge prouyded for to, that offendours maye be punyshed. But then say I yt yt is not in all the wittes of the world, for punyshemēt of myscheuouse wreches, to dyuyse a sawe in suche wyse, that men maye be sure that none innocent can take harme therby. And then yf he graunt me this (whyche whyther he graunt or no, yet very trew yt is) then say I that his onely reason agaynst the suit ex officio, and agaynst this lawe to, that is to wytte that innocentes maye take harme therby, if such a reason yt yf it were folowed ī euery law wher by mysseguyded folke are punyssed, there shold no law stand for theyr punyshenēt at al, but lest it myght misse happe that some innocent myght take harme, we sholde lette all myscheuouse folke alone, & therby suffre many mo good innocēt men take harme.

But then goeth this good mā ferther & sayth yt the punishement of an offender must be by a dew & a reasonable order. And y• is very trew also / & therfore we shal agre well in that. But than goth he ferther and sayth, I cā not se what dew or resonable order of tryal it is that he y• vpō his oth hath fyrst clered hym self & h[…]s neyghbour of heresyes, sholbe after contrarye to his fyrste othe, be receyued agayne as a wytnesse, to condemne hym that he cler[…]d byfore, and that in the same courte, and in the same mater.

Though this good man can not se yt: other men can se yt / and haue sene it, & dayly do se it to wel ynough. I haue sene suche thynges as thys is my selfe proued, I can not tell howe often, that in the excuse of a thefe some haue taken an othe, that the felon was with hym in hys owne house at suche tyme as the felonye sholde be done in a nother place. And a man wolde haue wente he hadde ben credyble and sayd trouth. And yet afterwarde hathe hym selfe confessed that the feson and hym selfe also were at the robberye bothe twayne / and hys bare worde then more trewe, then byfore was hys solempne othe. And euery man that hathe medeled myche wyth suche examynacyons, hath a sure experyence, that this ys a commen fashyon of murderers and theuys and such as are theuys receyuours / of whome at the fyrste face some seme honest men, & are so some tyme reputed, and come forth for declaracyon of them that are suspected and in trouble, and depose for them / and yet after vppon some other occasyon in examynynge of the mater, begynne to be suspected theym selfe, and afterwarde confesse yt to, bothe of them selfe and theym whom they came to clere by theyr periury before. And I am very sure there be not a fewe that haue herd suche euydence, geuen in causes of felony dyuerse tymes to the iurye.

But hereuppon bycause I spake in myne apologye of suche witnesses in felonye: thys good man maketh here ad[…]ute / what maner wytnesses I mene / whyther I mene ye.xii. men that are the iury, or other wytnessys that are brought into the court for to enforme thē. And thā fyrst if I mene the.xii. men, than he answereth me certayn thynges, to shew that he can skyll of the law. But veryly as for me, I shal put hym out of that dowt, that I ment not them. For I neuer toke the.xii. men for wytnessys in my lyfe. For why shold I call them witnesses, whose verdycte the iudge taketh for a sure sentence concernynge the facte, without any examynacyon of the cyrcumstaunces, wherby they know or be ledde to byleue theyr verdicte to be trew?

And also wherfore shold I mene to call them wytnesses, whome I se desyre wytnesses at the barre to enforme them in the mater, as wytnessys enforme a iudge? He myghte therfore haue spared hys labour in ye pyece well inough. For I neyther ment tht iurye, nor neuer toke theym for wytnesse.

If he wyll aske me what they be than: I saye they be the iury. And yf he wyll wyt ferthermore what persō they represent of those yt are v̄suall in other courtes wherin there be no iuryes vsed: than can I metely wel tell hym to yf the tale were as necessary as it wolde be longe.

But than cometh he to the tother parte and sayth, And yf mayster More by that terme, witnesse, mene suche wytnesse, as be somtyme brought into the kynges courtes, to geue euydencys to an […]nque[…]t, than to that wytnesse no suche wytnesse, as the wytnesse bene in the spyrytuall courte, that shall acquy[…]e or condempne the partyes: for of those wytnesse so brought into the kynges court to geue euydence to an […]nqueste at the comon lawe, no mencyon shall be made in the recordes, ne the iury be not bound alway to folow tho wytnesse. For yf the iury of theyr owne knowlege or otherwyse know the trouth agayns[…]e the sayenge of suche wytnesse, they be bou[…]den to fynde accordynge to the trouth, and let tho wytnes go. And yet yf it ha[…]ned, that such collaterall wytnes fyrst testyfyed vpon theyr othe, that the partye were not gylty: and after it were informed the iudges, that they reuoked theyr fyrst sayeng, and wold saye that the partye were gylty: I can not thynke, that the iudges wolde any more calle them to here theyr sayenge therin. And though they wolde, yet as I sayd before, it were farre vnlyke to thys case. For theyr sayenge there, is but as an euydence, whiche the iury sholde not be bounde to byleue, but as y• truth is. I can not se therfore, how mayster More can proue his sayenge, that suche wytnesses, that is to say, suche as be periured in […]he same court, shulde be afterward receyued as wytnes in any of the kynges courtes.

Now good readers euer more remember this, that it is not inough for hym that wyl auoyde a resemblaūce bytwen two thynges, it is not inough I saye for hym to proue that in some poyntes those two thynges are vnlyke / (for so muste euery two thynges nedes be, for ellys were they not two but one) but he muste proue that they be vnlyke in the self same point wherin, and to the self same purpose wherfore, they were so resembled to gether.

And now I say that in that poynt for that purpose for whyche I resemble them, I say that they be lyke. I dyd not say that they were lyke in the maner of the examynacyon, and puttynge of theyr names and theyr deposycyons in the recorde, in whych thynges this man sayth & I confesse that they be vnlyke / but I sayde that they were lyke in this point, that lyke as he that hath bene sworne and clered one as farre forth as in hym was of heresy, may yet be receyued swo[…]ē agayn & herd, and by his new cōtrary deposycyon may hurt the same party whom he dyd clere, before the same spyrytuall iudge, whyche lawfully may geue credence vnto hym vppon certayne cyrcūstaunces by his wysedome well wayed / so maye in lyke wyse he that hath ben sworn, and by his othe cl[…]red a man as myche as in hym was of felony, be yet receyued and sworne agayne and herd, and by hys new contrary deposycyon maye hurte the same partye whom he dyd before clere in a temporall court, before the selfe same iudges / by the reason that the iury maye lawfully byleue hym in the seconde othe, vppon certayne consyderacyons by theyr wysedoms wysely wayed, notwithstandyng his formar othe in the same court to the contrary.

And all be it that here before I thought vppon no ferther than vpon such wytnesses taken before the kynges counsayle, or iustyces of ye peace men of wurshyppe in the cuntrey, & afterwarde those deposycyous with such contrary ohtes and all the cyrcū staunces therwith geuen in euydence to the iury at the barre, in the face of the kynges ordinary court, syttynge vppon the deliueraunce of the prysoner: yet syth this good man dissymuleth that poynt, and draweth me forth before the iudges, I am well content to wayte vpon hym thyther. And I nothynge dowt but that euyn there he shold, the case myght so fal, fynde it trewe that I tell hym.

That is not so sayth this good man. For yf it happened that such collaterall wytnesses, fyrste testyfyed vpon theyr othe that the party were not gilty / and after it were enformed the iudges that they reuoked theyr fyrst sayenge, and wolde say that the party were gylty: I can not thynke that the iudges wolde any more call them to here theyr sayenge therin.

Here you se good reders that he proueth thys poynt by none other thynge, than onely by his owne thynkyng. Now albe it yt against his thinkynge that they wolde not, it were inough for me to saye that I thynke they wolde: yet wyll I not leue it so bare, but I wyll shew some cause wherfore in some case they sholde / & I wyll also put you some such case, whiche if the case happed I nothyng dowt but they wolde.

Fyrst the cause wherfore a person ones periured is repelled frō beryng wytnesse agayn, is bycause the lawe presumeth that he setteth not so mych by an othe, but that his oth notwithstādyng he were likely inough to lye.

Now syth this presumpcyō is the generall let, and therfore the reason of the generall law: yf the case happen that this presūpcyō be more than coūtrepaysed with a cō […]r[…]ry presūpcyon vpon the tother s[…]de, there is yt cōtrary presūpcyō a reason sufficyēt, to make in yt case a cōtrary law, or a law that shalbe for that case an excepcyon out of that generall rule.

Now syr as he yt on his oth cl[…]reth hym self & his felow to, eyther in heresye or in felonye, doth after cōfesse & swere also the cōtrary: yf we wold not byleue him in ye secūd oth, bicause we fynde hym therby periured in the fyrst / than in that we iudge hym in ye fyrst to haue sworen false, it implieth that euyn therby we iudge hym in the secunde to say trewe.

If he wyll refuse his secund oth, and not thynke hym worthy to be byleued, bycause that he sware the contrary byfore, & therby presume hym a false shrewe whan he sholde by the secunde othe proue hym selfe ones periured, and than we could not tell in whyther othe of the twayne: here I say the fyrste presumpcion is ouer borne wyth the secunde. For it is an other presumpcyon that no man wyl caste awaye his soule for nought. And yet a greater presumpsyon that no man wyll cast awaye his soule, to do hurt eyther to his owne body or to his frendes.

Now loke me than vp this mannes two othes, his fyrst othe and his secund. And though there be a comon presumpcyon therin also, wherupon the credence of all othes resteth, that is to wyt that a man reputed good & honest, wyl not for his frendes body nor for his owne neyther, caste hys soule awaye by periury: yet whan hym selfe after sheweth vppon hys seconde othe, that he was periured in the fyrste, the presumpcyon of hys trouth in his fyrst oth, is taken away by the secunde.

Now the secund if it be to thaccusynge of hym selfe & his frende both, whome his fyrste othe excused, hath these other two presumpcyons for to bere agaynst the fyrst presumpcyon generall of his vntrouth for his periury. The tone, that though it be presumed in the law, yt he wolde be false and forsworen for somwhat: yet is it presumed that he wyll not be forsworen for ryght nought. And yet as I sayed it is more strongely presumed that he wyll not be forsworen to the hurt of hym selfe and hys frend. And therfore hath hys secunde othe inough to bere it agaynste the fyrste, syth in the fyrste he sware for his frendes aduauntage and his owne, for whiche (syth he nowe appereth false in the tone othe or the tother) he was than lykely to be forsworen. And in the secunde yf he were forsworen, it were to theyr both harme. And therfore is that othe presumed to be trewe, though the man hym self be presumed false.

This is I trowe to no man any dowt, but[…] that though a man had ben openly periured thryes: yet yf the worlde myght (as it may not) be sure that in another mater he wold for all that swere trewe, the worlde wolde receyue his othe. Now for as myche as of no mannys oth any man can be so sure, but that he maye be by possybylyte deceyued: the law goth as far forth as it can, and taketh theyr othes for a profe, whych are in that case by presumpcyon lykely to swere trewe. And syth that he therfore whom the respecte of his frendes saufgarde & hys owne, gaue occasyon to be forsworen in the fyrst, in the secund swereth contrary wyse to theyr bothe parell & harme: therfore in y• case reason bereth ye law, yt in such heyghnous crimes his secūd oth shold be receyued.

Here haue I shewed you a reason whych semeth me sufficient, that bothe in heresye and felony, the iudges sholde be content not withstandyng the fyrste othe, in some case to suffer hym swere the contrary.

But now for the tēporal courtes, let vs put some case for a sample, to se whyther ye iudges wolde yf ye case happed so, here ye witnes again or not

I wyl not put the case in treason, wherin th[…]re wolde I wene be no dowte / but that yf after his euydence gyuen vppon his othe in clerynge there the prysoner, he happed euyn sodaynly there at the barre to repent hym selfe, & say that he was hyred to be forsworen, & that he was forsworen in dede, & than wolde tell another tale far cōtrary to ye fyrst, ere euer he went fro the barre: wold his tale not be herd trow you? yes and (the iury so desyrynge as peraduenture they wold the iudges wolde swere hym to I suppose / and very good reason wolde bere it that they sholde.

But as I say let treason go, and come but euyn vnto felonye. If two or thre wytnessys wold at the barre excuse vppon theyr othes some one man of felony / and afterward whan they were stepped fro the barre happed to be herde rowne and reioyce to gether, that they had geuyn good euidence for acquytayle of theyr felow, with whom them selfe had ben at the same robbery: if they were sodaynly brought agayn to the iudges, the iury not yet departed fro the barre / and beynge seuerally questyoned in that sodayne abashement, seynge yt god had so vttred theyr falshed, bygan to haue remorce and came forth wyth ye trouth, and agreed in the cyrcumstaū ces and told all one tale, confessynge both the prysoner & them selfe gylty, and wold be contēt to swere that this tale were trew con[…]rary to the othe yt they sware there byfore: wolde not the iudges trowe you geue them the herynge? yes yes I dowte not, and the iury to.

And thus you se clerely good readers, yt in this poynt if this man had wysely wrought, he sholde haue geuen it ouer.

And now albe it yt here I myght ende this chapyter, and haue no nede at all to go any ferther: yet to the ferther openyng, how lytell holde there is in the causes that he layeth of dyssymilitude & vnlykenes, bytwene the wytnessys brought into a spirituall court, & the wytnesses brought in to ye temporal for informacyō of the iury / I meruayle mych yf hym self know not that lyke as the iury may yf they se cause why, way the wytnesses at lyght, and quyte the prysoner for all the wytnesses wordes, so may the ordynary do to. For in his estymacyon the power lyeth, to way and consider the qualytees of the wytnesses / and all suche other cyrcūstaūces as may mynysshe or encreace theyr credence.

Ye and vnto the tother syde, the wytnessys are not in the temporall courtes wayed and estemed so lyght, but that the iury shall yf they byleue them not, be somtyme dreuyn to yeld a good rekenynge why. For though the wordes of the wytnestes be not entred in the recorde, yet in attaynt they shall agayne be geuen in euydence agaynst the petyt iury, and testyfye by the court and by the othes of them yt before herde them depose.

And thanne yf it appere vnto the graund iury in theyr conscyence, that the petyt iury wylfully of some corrupte mynde regarded not the wytnessys, and therfore in the geuyng of theyr verdycte passed agaynste theyr owne conscyence: euery man well woteth that they shalbe attaynted.

And necessyte hath also dreuen the kingꝭ grace & his coūsayle for ye sure punyshmēt of felons, to prouide yt yf the iury lykewyse regard the wytnessys so sleyghtly, yt the iudges thynke they quyte the felon agaynste theyr own cōscyence: they bynde thē sometyme to appere before the kyngꝭ coū sayle. And there haue there dyuerse iuryes bene proued so to haue myssevsed them self therin, that they haue ben punysshed therfore.

Now wyll I good readers come vnto that piece, which (as a thyng all redy cōfuted & of it self vnworthy to be touched) I wold haue passed ouer & not ones vowchsafed to write one word therin, sauyng yt I se him to haue takē such labour therabout, yt he semeth to wene yt he hath defended it well / whiche whither he haue well defended or not, your selfe shal good readers iudge.

These were his wordes in his boke of diuision.

Thys is a daungerous law, and more lyke to caus[…] vntrew and vnlawful men to condempne innocente[…] then to condempne offenders. And it helpeth lytell, that yf there be tokens, that it is not done of hatered nor for corrupcyon of money: that it shold be taken: for somtyme a wolfe may shew hym selfe in the apparell of a lambe. And yf the iudge be par[…]yall, such tokens maye be sone[…] accepted then trewly shewed.

To thys pyece these were my wordes in myne apology folio. 229.

Syth euyll folke vse not to make good folke of theyr counsayle in doynge of theyr euyll dedes / those that are done, sholde passe vnpunyshed, & mo lyke be commytted a fresshe, but yf they were receyued for recordes to theyr condempnynge, that were of theyr counsayle and parteners to the doynge. why[…]he kynde of folke wyll not lette to swere twyse naye before they confesse ones ye / and yet theyr one ye more trewe vppon theyr bare worde, than theyr twyse naye vppon a solempne oth / and yet confesse they not so symply, but that it is comenly holpen with some suche cyrcūstaūces as make the mater more clere.

Nowe se you well that as hym selfe sheweth, the lawe prouydeth well agaynste all lyght receyuynge of such confessyon. And yet thys pacyfyer sayth that all that helpeth lytle, bycause the iudge may be parcyall, and the wytnesse maye be a wolfe, shewynge hym selfe apparelled in the apparell of a lambe, whych apperynge in apparell, pore men that can not apparel theyr speche with apparell of retoryke, vse comenly to cal a woulfe in a lambes skynne.

But what order may serue agaynst suche obieccyons? what place is there in this world spyrituall or temporal, of whyche the iudge maye not haue some saye that he is, or at the lest wise (as he sayth here) maye be parcyall? And therfore not onely such wytnesse shold be by this reason of his reiected in heresye, treason, murder, or felony / but also by his other reson of a woulf in a lambes skynne, all maner of wytnes in euery mater. For i euery mater may it happē, y• he y• semeth a lambe, may be in dede a wolf / and be nought where he semeth good / & swere false where he semeth to say trew. And therfore this patche of this pacifyer cōcernynge witnesse / euery wyse man may bere wytnesse that there is lytle witte therin / and lesse good wolde growe therof, yf folke wolde folowe his inuencyon, and make of the lawes a chaunge.

Now that you haue good reders h[…]rd what we saye bothe before. Now shall you se how substancially this man defendeth his fyrst wordes agayne. These are so in this xvi. chapyter of hys newe boke hys wordes.

Nowe by reason of this obieccyon I wyll speke somwhat father in thys mater, then I dyd in the sayde treatyse. And fyrste I wyll saye thus, that yf ys to me a great meruayle, to se mayster More so faire ouerseen, or el[…]ys yf he be not o[…]rseen therin, that then he wolde yf he coulde, deceyue other and make theym so farre ouerseen, to byleue that yt shulde be one lyke reason of a periured wytnesse, that wyll loke lyke a lambe, and saye contrarye to that he hathe deposed before, and of a wytnesse that cometh to depose in a matter that he was neuer yet sworne vppon. For when a wytnesse ys broughte in, that was neuer sworen vppon the mater byfore / the iudge maye not by the lawe refuse hym, nor iudge any defaulte in hym / oneles he knowe a suffycyent cause hym selfe in that behalfe / or that the partyes do alledge yt: but he muste byleue / that he ys honeste, good and indyff[…]rent / tyll the contrarye be shewed / as euery man ys in charytye bounde to do of hys neyghbour. But when a wytnesse hathe deposed in the courte / and then wyll offre hym sel[…]e to depo[…]e to the contrarye that he sayde byfore: the iudge maye wyth good conscyence mystruste and thynke, that he doth yt of lyghtnes of mynde, hatered, or for cor[…]upcyon of money.

If I were in thys poynte ouersene, I nede not greately to be ashamed of the ouersyghte. For then hathe there bene many suche other men ouersene also, as I wolde not wyshe to be wyser. And I no more entende to deceyue other men in thys mater, thanne many other haue entended, that vsed and allowed thys thynge that I defende now byfore / such men as wyth the cō dycyon that I were neuer worse, I wolde neuer wyshe to be better. This mā maketh as though it were great shame for me, to liken to gether a person ones periured, and a person that was neuer yet ones sworen. I wolde in dede be a shamed to lyken theym to gether in euery poynte, all though there were no more dyfferēce betwene theym, but that the tone had a longe nose and the tother a shorte. But I am not mych ashamed to say that for some purpose, where he speketh of the tone I maye speke of the tother, and lyken them well ynough to gether. For I may say (as I said) that lyke wise as he that hath for sworen hym selfe, may fayne hym selfe to saye trew, and loke lyke a lambe, and yet be a woulfe in dede: euyn so I saye maye he that neuer was sworen byfore.

Ye sayth thys man, but yet these two be not lyke. For he that was neuer sworen, there is no cause to mystruste nor presume that he wyl play the woulfe in a lambes skynne. But he that hath bene forsworen, is of reason to be mystrusted / and yt is to be presumed, yt he wyll play the woulfe in a lambes skynne.

Marke yet in the meane whyle, y• yf I could make no father answere: yet hadde I wonne and he loste. For his fyrst wordꝭ were in his boke of dyuysyon, that he that confesseth hym selfe forsworen, shold in no case be receyued to swere agayne the contrarye / bycause that though there seme a good cause to byleue hym in his seconde othe, yet yt maye be that he dothe but fayne / and I sayde so may he to fayne and dyssemble, that neuer was sworen byfore. And then yf the onely power and habylyte to fayne, were a cause suffycient to put any oue man from berynge witnesse vppon his othe: euery man were by reason repelled / for euery man ys able to fayn. This was as you se ye thynge that I then sayde. Whyche thynge neyther this mānor any man elles is able to confute, nor proue the forsworen man and the man vnsworen vnlyke in the poynte that I lykened them / that is to wit in powre and abylyte to fayne. And farther then that, went not I. For I had no farther cause in answerynge hym there, whyle he wente no farther there, nor sayde none other, but that he that was forsworen may fayne. And nowe reade your selfe his wordes, and loke whyther I say trewe.

But nowe thys beynge proued as yt is proued playne, that he hathe a fall in those wordes whyche he spake byfore: let vs a lytle se whyther wyth thys leysour after hys mater agayne consydered a freshe, he haue caughte any better holde now. And surely me thynketh not one whyt.

For where hys newe reason reste[…]h in thys, that he whyche confesseth hym selfe ones forsworen, is by reason mystrusted, as one not onely to be able to swere false, and wylyly cloke hys falshed vnder a colour of trouthe, but also presumed that he so wyll do in dede: to thys I saye that he sayeth trouthe, as longe as there is no greater presumpcyon on the tother syde to serue for hys seconde othe. But when the case happeth that there is, as yt happeth in the case of this lawe: than ys the presumpcyon that he wyll swere false gone, as I shewed you byfore.

And then that presumpcion by a greater presumpcion beyng purged: this man forworne and the man vnsworn are in the thynge that I resembled them for, waxen well lyke agayne. And that the sayde presumpcyon ys purged: I shewed you byfore, in that it is now a greater presumpcyon for his seconde othe, that he wyll not fo[…] swere hym selfe, to the parell of his frende and hym selfe to.

Then goeth he farther, and enforceth his reason with the reason of the lawe before ye peragraph Licet was made. And therin thus he sayth.

In so mych that byfore that parag. Licet was made the iuge myght none otherwise haue done of iu[…]yce, but to haue refused to haue taken any farther examynacyon of hym. And yf he hadde, and the other had sayde contrarye to that he hadde sayde byfore: hy[…] saynge hadde ben voyde in the lawe.

And thys thynge wherwyth he thynketh his reason made the s[…]renger, maketh his reason a great deale febler. For whyle the generall rule of refusynge suche wytnesse in all cases, was made so longe byfore: it appereth playnely that necessyte found the faute, and caused oute of the generall rule this case to be made an excepcyon / and so the lawe made by better delyberacyon.

And in such other horible crymes, the same lawe is vsed in temporall courtꝭ, and was also before that law made by the chyrche.

But agaynste all thys yet, thys man maketh me this reason.

what the makers of the sayde peragragh ment, to put into the dyscrecyon of the iudge, that yf he saw by euydent tokens that yt is not done of lyghtnesse of mynde, nor of hatered, nor for corrupcyon of money, that hys sayenge shall stande as well agaynste hym selfe as agaynste other: I can not tell. For I can not se how there can be any euydent token in any suche case, but that there myght be in suche a periu […]ed wytnesse sometyme inwarde hatered or corrupcyon that the iudge can not knowe, so that he can not iudge of certayntye that there ye none.

Consyder now good readers that all the strēgth of this reason hangeth in this, that the iuge can not surely se somtyme, whether the periured wytnesse do it for the trouth, or haue an hatered in his breste so secret that the iudge can not se yt, & therfore he can not certaynly iuge that he hath none. Consyder here now yt he sayth not yt yt is presumed, or must be presumed, that the periured wytnesse hath so / (for yf he so sayde, he sholde saye to no purpose. For as I haue shewed you how that presumpcyou maye be ouer wayed wyth greater presumpcyons to the contrary) but he sayeth that it may be in dede, that the forsworen wytnesse hath so. And then saye I yet agayne, yf we go to the possybylyte of the dede, and not vnto the presumpcyon and lykelyked / he that was neuer sworen byfore, may haue a secrete hatered whyche the iuge can not se, as well as he maye that was twyse sworen byfore. And theron I saye also yet agayne, that yf the iuge were charged to geue no sentēce but suche as he knew of certaynetye sure to be trewe: he coulde neuer vppon any wytnesses in this worlde geue any sentence at all. For no wytnesse were there but he myght swere false & ye iuge myght wene he sware trew.

Now yf this man wold saye yt he meaneth no farther certayntie, then onely a sure thynkynge in the iudges owne conscyence, and that therfore he modered all his other wordꝭ (with this worde conscyence, sayenge that the iuge could not with cōscyēce iuge of certaintie yt there were no hatered: this meanyng were a very marryng of al yt he goeth about there to proue. For though the ꝑiured witnesse might haue (and happely hadde in dede a secrete hatered in his own breste, as an other witnes myght haue (& happely had in dede) that neuer was swore byfore: yet myght the iuge beyng i[…]duced by certayn tokens & lykelyhedes haue a sure & a certayn ꝑsuasyō & bylyefe in his own cōscyence, yt neyther the tone nor ye tother had any hatered at ye time, but onely deposed ye trouth. And therfore if he wold say yt he mēt thus: he marred all his mater.

But it appereth playn yt he mēt in ye tother maner vpō which there must nedes folowe (yf he were not in his sayeng deceyued) that euery iudge in euery sentēce yt he shold geue vpō any witnesses, were they neuer so honest in apparēce, were in a daunger ineuy table. And that he mea[…]eth ī that maner, that the bylyefe of his owne conscyence iuduced reasonablye thereto, coulde not excuse the iudge yf he were deceyued and the thynge other wyse in dede: he declareth farther by the wordes that next ensewe, where he goeth farther thus.

And therfore me semeth that the makers of the said peragraph layd ouer great a daunger to the iudges, that they sholde haue lybertie to accept yf they wold the sayeng of hym that so offreth hym selfe agaynst hys fyrste othe / for so myche as the iudge can not be sure to saue hys conscyence therin, but yf he clerely refuse to accepte any thynge that the wytnesse wold saye contrarye to hys fyrst othe. For yf the iudge dyd otherwyse, & therupon the witnesses testyfy agaynst the partye, & yet the partie not gylty in dede: I suppose verily yt the iuge were party to the same offens.

And I suppose not the contrarie, but am very sure of ye contrarye. For I am very sure, that where the iuge seeth suche tokens as seme vnto him manyfeste and open tokens, to proue that his seconde othe is not offr[…]d of any corrupt effeccion, but of remor[…]e of his periurye and of a mynde to amende his faute and saye trewe: he falleth in no daungeour of cōscience, though the trouthe be otherwyse in dede. For yf there neuer hadde lawe bene made at all to refuse any wytnesse bycause he was ones periured: ye iuge had ben clere at libertie vpō resons & lekelyhedes ledyng his conscience, to haue receyued him again with out any ꝑell of his own cōsciēce at al, where so euer hym self had thought greater lykelyhed that he wolde saye trouth at the second othe, then he dyd before at the fyrste. And then syth he was now letted to receyue hym, and his lybertye therin restrayned but by a lawe made: what parell can he more fall in when a seconde lawe hathe set hym at large, then yf the formare lawe hadde neuer made the restraynte.

Also where the lawe there prouydeth, that the iudge shall styll reiecte that witnesse, which offreth to tel the trouth vpon a second oth contrary to his fyrste, but if there appere manyfest tokens that he do it not of any corrupt effeccion: it meaneth none other but that yf the tokens seme suche vnto the iudge, that they induce hym in his conscyence so to byleue & thynke and not that he shalbe certayne & sure that ye thynge is so in dede, by lokyng into the secrete corners of the mānes harte / no more then the kynges iuges at the comen lawe, by what wordes so euer they geue thenqueste an oth, nor by what precyse wordes so euer they receyue theyre verdycte, meane not to charge theym vppon parell of theyre soules to say none other wyse thenne the trouthe of the thynge shal be in dede / but as the trouthe shall seme to theym to be, vppon suche thynges as they shall perceyue eyther by the euydence geuyn theym at the barre, or otherwyse ere they came there. Nor the iudges theym selfe in the iudgynge of a matter of lawe, neuer meane precisely that the lawe is so. For then yf other iudges after reuersed that iudgement or iudged the same case otherwyse in a nother tyme bytwene other men, the tone iudges or the tother hadde putte theyr soules in parell, doynge bothe twayne theyre beste to iudge as well as they coulde.

But syth no man can se farther then his eyen wyll serue hym, no nor no mā can se farther thē his own reason can vppon the mater thorowly debated perceyue: yf eyther the.xii. men or the iuges, neyther neglygent nor corrupt, iuge as they thinke trew, theyr soules are saufe ynough / as saufe as is the soule of the carpenter, that putteth in hys frame no tymber but such as is good & sounde as farre as men can se / and yet some of yt secretely may be suche in very dede, as soon after shall fayle and fall downe all the rofe. His soule is saufe ynough, though his purse may happe to swete, yf he bounde hym selfe to prouyde the tymber at hys owne parell. But so byndeth hym selfe neyther iudge nor iurye for the wytnesse on parell of theyre owne soules, that the tother shall swere trewe.

And thus you se good reders that the iudge is oute of parell, vsynge dylygence and trouth, though the witnesse be false and haue hatered in his harte / where the iudge weneth none vpon tokēs yt he thynketh manifeste, al though the witnesse were forsworē before. And thus is this good man in this mater all gone quyte awry.

But yet beynge sore troubled wyth the wylde woulfe, that maye swere false and seme trew, nothyng mystrusted bycase he cometh lapped in a lambes skynne: thys good man goeth ferther yet and therin thus he sayth.

And where I sayde in the sayd treatyse, as before appereth, that somtyme a wolfe may shew hym self in the apparell of a lambe, and that yf the iudge be parcyall, suche tokens maye soner be accepted then truely shewed: If is euydent inough, that by those wordes I note no iudge to be parcyal, but I say that yf the iudge be parcyall, suche tokens may be […]o[…]ner accepted then truely shewed. As who sayth, the iudge may accepte such a token to be true, though there appe[…]e some suspycyon of vntruth in the wytnes. In whyche acceptaunce he shal more lyberally and wythout offence of the lawe do wronge to the party that is accused / then he could do by acceptyng of any other wytnesse agayns[…]e the law, that were neuer sworne before. For yf he accepte any suche wytnes cōtrary to the rules of the lawe, it appereth to all theym that knowe the lawe, that he doth agaynst the law therin: and that wyll sounde somwhat to hys rebuke, and that wyll make hym the more loth to do it. But yf the iudge accepte suche a periured wytnesse where there is no suffycyent token to proue that he doth it not for lyghtnesse of mynde, hatered, corrupcyon, nor such other: yet he breketh no lawe therin. For all is commytted to his dyscrecyon. And that may hapely gyue a boldnes to some iudge to accepte suche a periured wytnes where he ought not to accepte hym. And though the […]ayde Peragr. say that yf there be suche tokens as before appereth, that then in fauour of the fayth hys wytnes shall be taken: yet I can not se, yf the party accused be gyltlesse in dede, as he maye be for all that wytnesse, how it can be taken in fauour of the fayth, to accepte the wytnesse. For it can not be sayd in fauour of the fayth to condempne an innocent.

All thys tale whan it is all tolde, wayeth vnto no more, but that yf the iudge be parcyall, than he may abuse the lawe, and than that lawe in that case may do harme in heresy.

Now besyde that the quest herynge the same wytnesse sworne fyrste, and after contrarye, maye yf they be parcyall, do lyke harme in felonye: what lawe was there euer made, wherein the iudge coulde do none harme yf he wold be parcyall? what lawes maye there serue, yf the mynystres wolde be false? Thys man is content that to a mannes condempnacyon, the presumpcyon shall serue that the wytnesses wyll swere but trewe, suche wytnesses at the leste wyse as are not proued false before / and yet maye they marre all yf they be false a[…]d parcyall. And whan he presumeth suche indyfferē cye in a wytnesse: why fereth he so sore parcyalyte in a iudge? yf he saye he mystruste the iudges, bycause of some Some sayes: […]hanne muste he mystruste wytnesses, iuryes, and iudges, and all togyther. For suche Some sayes there lacke not that can say well by no man.

Thys reason of hys dothe but putte a suspycyon in mennys heddes agaynste the iudges, for euery thynge that is putte in theyr dyscrecyon. But surely ([…]s I haue often harde that greate wyse and ryghte wursshypefull manne syre Iohn̄ Fineu[…] say, late chyefe iustyce of the kynges benche) who so taketh from a iustyce the order of hys dyscrecyon, taketh surely frome hym more thanne halfe hys offyce. If thys realme sholde mystruste iustyces: it must in the lawes than make many suche chaunges, as I neuer sawe nede yet, nor truste I neuer shall. What harme myghte any iustyce of the peace do, yf he were dysposed to be false and parcyall? And euer shall be able to do make what lawes men wyll, but yf men wolde vtterly put a waye that offyce And than in stede of one harme that maye happe, we shall haue an hundred happe in very dede.

Consyder also good readers, that by the lawes afore made, there was not onely forboden to bere wytnesse, he that appered to be ones forsworē, but also many other maner of cryminouse persons, for the generall presumpcyon that they were vnworthy credence / and yet haue bene by other lawes after made, receyued to bere wytnesse agaynst them selfe & theyr felowes in heresye & in […]reason both, for the necessyte as I haue sayd and vppon presumpcions more probable that they were in that case wel likely to swere trewe.

Now yf this good man for fere of suche harme as maye by possybylyte fall vppon an innocent, wyl put one of these frome witnessynge: he must repell them all. For as the latter lawes haue synnys receyued all: so the formar lawes generally dyd fyrste refuse them all. For the generall rule is naturally before hys partycular excepcyons.

And than yf he wold in lykewyse repell them all, than for one harme yt may happe, and happely neuer shall: he sholde haue many myschyeuouse people very bold, whyle they myght be sure they muste nedes passe vnpunyshed, bycause theyr priuy myschief coulde neuer well be proued, but yf they wold whan they went about it, take honest men wyth theym to bere recorde of it.

And thus you se good readers very clere and playne, that this good man hath hytherto brought you forth no reason. And I thynke he saw that hym selfe / and therfore he though he wolde saye beter at last, and not leue it so. For thanne goeth he ferther and sayeth.

And ferthermore it appereth also, that the wordes of the sayd treatyse e[…]tende no fe[…]ther, but to suche as be iudges, where there is before them suche a periured wytnes, and not to al iudges. And in lykewyse those wordes, that a w[…]e maye shew hym se[…]e in the apparel[…] of a lambe, sitetche onely to suche a periured wytnes. For there is no other wytnesse spoken of in the sayd treatyse in that place.

Thys man goeth to his wordes and forg[…]tteth what I saye / whyche is that though his wordes go no ferther, yet the reason of his wordes (yf it were reason as I haue proued it none) wolde stretche so farre farther that it wold marre all. And this point haue I proued you very clere and playne.

And therby is ment, that suche a periured wytnesse maye haply shewe hym selfe to denye that he sayde before, of a compuncte harte and of a new knowlege of the treuth, and of a very zele vnto the […]ayth: and yet do it in dede of couetyse, falshod, rancoure, and malyce to the party. And so as the gospell sayth, he may happe outwarde to appere in the apparell of a shepe, and within forth be a raumpynge wolfe. And suche one maye that periured wytnesse be, that i[…] spoken of in the sayde treatyse. And of suche a wytnes in heresye the sayd treatyse speketh onely there and of none other witnesse, as to the readers wyll appere. And therfore as me semeth, mayster More fyndeth defaute in thys behalfe, where he hadde no cause reasonable so to do.

Now good reders where as this man sayeth, that he ment that suche a forsworen wytnesse maye happely play the woulfe in a lambes skynne: I graunt that he ment so. But as I graunte yt to hym: so muste he graūt thys agayne to me, that so maye he playe to, that was neuer sworen before. And than whyle he goeth no ferther, but that the tone happely may, and can not hym selfe saye naye but that the tother happely maye so to: there foloweth vppon that the thyng that I sayd before, whyche this man sayth he merueyleth mych yt I wold say, that ys to wytte, that by that wyse reason there sholde be receyued in suche crimynall causes, no maner wytnesse at all.

Now yf he leue his may happely and say that it is lykely, that the forsworen witnesses wyll say false, and the tother trew that neuer was swo / ren before / and that the witnesse ones forsworen afore, is in his secund othe contrary to his fyrste, more lykly to playe the wyly woulfe in the lambes skynne, than suche a playne symple man as was neuer sworen before: I wyll be so bolde for thys ones as in some case to tell hym boldely nay. For where he sayd a lytell afore, yt he coulde not se how there coulde be any suche euydent token in any suche case, but that such a periured wytnes myghte do it of a secrete hatered, and seme charytable, and so play ye wyly woulfe in the simple lambes skynne: I can se well inough, yt in some case there may be an euydent token, that some suche wytnesse as was so fyrst forsworen, were after in his secunde othe swerynge the contrary, lesse lykely to lye & play the wyly woulfe in the lambes skynne, than were an other that neuer was in hys lyfe before neyther forsworē nor sworen.

For yf he that was before vppon his o[…]h examyned both of hym selfe & his sone, or of hym self & his father, or his other specyall knowē frende, & on his othe clered them all, do at an other tyme vppon a new oth confesse them all gyltye, and hym selfe also / and where peraduenture hym selfe must to the fyre, bycause he was abiured before, & they maye turne yet in tyme & be but abiured: were not thys an euident token that he doth it not of any secrete hatered, nor playeth not the wyly woulf in a lambes skynne? For i wys to confesse hym selfe gylty in such case, and puttyng hym self in worse case than hys felowes, were but a pore poynt of a wyly woulfe And as I putte thys case for ensample: so may there be many other. For the tokens myght be playne inough though they were lesse playne thanne thus. And therfore to conclude in this mater, this man hath no reasō in this worlde to defende hys fyrste booke wythall.

And therfore where he spendeth a patche in the ende, about his declaracyon, that it may be lawfull for hym to fynde defaute at lawes made by the chyrche, so that he fynde them vppon a suffycyent reason, bycause all that poynt nothyng helpeth hym here in this law, agaynst whych he sheweth no reason reasonable, but a reasō as vnreasonable as euer reasonable man herde: I shall I saye therfore let that piece passe by, and here make an ende of hys.xvi. chapyter.