they were taken and of their actings and not to remain as they do in the view of the owners perhaps purposely in despight exposed to such publick view This works contrary to His Majesties pious intention and that Act of Oblivion it continues does not abolish the memory of our former divisions when the spoiled shall see as a continual Eye-sore their proper goods in the possession of the spoiler whilest the spoiled for want of them perhaps is ready to starve and perhaps the spoiler makes his livelyhood out of them if not steps of preferment too The Heathen Poet could say of the Civil wars of Rome Bella geri placuit nullos habitura triumphos But surely this looks like a continued triumph after the Warre Reparation to persons spoyled Some have wished that that motion in the last Parliament or Assembly or Convention that ended in December 1660 made in the Lords House might be renewed that the spoyled party might at least in some good measure be repaired by some publick Tax made for that purpose and due consideration to be had of such suffering spoyled persons that constant never-changing Loyalty may have some encouragement and comfort besides that of a good conscience Touching the Long Parliament Some have wished that it might have been by Act of Parliament declared if thought sic that the Long Parliament notwithstanding that Act for the continuing of it till it should be dissolved by Act of Parliament was dissolved or declared void and null from such a day as should have been by advice of the Judges and learned in the Laws agreed upon And that also if thought fit consideration should have been had particularly from what time that dissolution annulling or making void should have commenced whether from the time that His late Majesty was driven from the Parliament by tumults and riots which as is known some if not many Members especially of the then Commons House in that Long Parliament that took up Arms against the King were so far from causing to be suppressed though His Majesty desired it that they were set on by them as is notorious And also if thought fit that if not from that time yet from the time they voted to live and dye with the Earl of Essex by them voted to be their General against the King and upon the matter causing those Members to leave the House that would not vote with them And whether that His Majesty calling them afterwards a Parliament as they alledged when they were in Arms against him though perhaps His Protestation to the contrary was entred in the Council-book could any wayes entitle them to a lawful Parliament And also if thought fitting that it should have been by Act of Parliament declared that any Member of Parliament offending against 25 E. 3. in raising or bearing Arms or maintaining them against the King ipso facto ceases to be a Member of Parliament for that a Rebel and a Parliament-man are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And also if thought fit that the Judges of the Land consulting together should have declared as they did in King James his time in that case about Watson and Clerk the Seminary Priests that the Kings Coronation was but a Ceremony and that without it the King was a complete King that that Long Parliament was dissolved from such a day as they should have found by Law that it was dissolved or annulled whether it was from the time of His late Majesties expulsion from his Parliament as before or from the time of voting to live and dye with the Earl of Essex or of their Votes of no further addresses to the King who called them to consult with him whether they did not then openly dissolve themselves by refusing to consult with him or from his death when they could consult no more with him And also if thought fit that it should have been so declared and enacted that though the King had passed an Act that the Parliament should fit till they were dissolved by an Act of Parliament and that if it had been expressed that it should be so notwithstanding that His Majesty should dye in the interim yet such an Act could not bind him nor his Successor especially when in that Act for continuing that Parliament till by such Act it should be dissolved there is no such mention that it should continue after his death that called it and that the King cannot be concerned at leastwise concluded any wayes in any Act of Parliament to his damage prejudice or diminution of his Royal Prerogative or Authority except at least he explicitely and freely consent to it be specially comprized and named in that Act to that purpose or whether he can though he so consent it following plainly that if by taking up Arms or bearing Arms against the King a Parliament-man ceases to be so nor can sit any longer in the House Then in that case none ought truly to be accounted secluded or excluded Members but onely these that would not then vote to live and dye with the Earl of Essex nor would assent to the raising of arms against the King but thereupon left the House or were expelled thence either by the Votes of the rest or by menaces just fear that might incidere in constantem virum or by tumultuous force so that if the Parliament if not by the reasons aforesaid yet at least by the death of the King being dissolved as to think the contrary is most void of reason or truth if I say it had not been so dissolved then those secluded or excluded Members they onely ought to have been restored and none of the rest that acted against the King by taking up Arms against him or acting against him ought to have been restored Such offended against the Act of 25 E. 3. raising Arms against the King c. counterfeiting or making a new Great Seal c. and their being Members of Parliament being as before inconsistent and for the void places His Majesty to issue out Writs for free legal and new Elections The keeping of the Records in the Tower And also that the keeping of the Records in the Tower should be in the hands of a known trusty Loyalist and none other in regard of the danger of imbezelling or corrupting them by any person of other principles not affected to Monarchical government by Law established to the great damage of the King and his Subjects The Militia And also that the Militia and all Offices and places of trust and concernment for the peace and safety of the Kingdoms and for the prevention of future Faction Sedition and disturbance of such peace and endangering such safety should be committed onely to the hands and especially for a competent space of time as by such free and legal Parliament or by His Majesty shall be agreed upon of known experienc'd Loyalists and not to any that may be reasonably presumed or suspected to be otherwise That rule may somtimes hold and not
Commissary or any other Spiritual or Ecclesiastical Iudge Officer or Minister or any other person having or exercising Spiritual or Ecclesiastical Iurisdiction to tender or administer unto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendered or administred may be charged or compelled to confesse or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment any thing in this Statute or any other Law Custom or Vsage heretofore to the contrary hereof in any wise notwithstanding Provided alwayes that this Act or any thing therein contained shall not extend or be construed to extend to give unto any Archbishop Bishop or any other Spiritual or Ecclesiastical Iudge Officer or other person or persons aforesaid any power or authority to exercise execute inflict or determine any Ecclesiastical Iurisdiction Censure or Coertion which they might not by Law have done before the year of our Lord One thousand six hundred thirty and nine nor to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs nor to confirm the Canons made in the year One thousand six hundred and forty nor any of them nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enacted by Parliament or by the established Laws of the Land as they stood in the year of the Lord One thousand six hundred thirty and nine The Contents of the Chapters Chap. I. THe endeavours of the Innovators to change the course of Ecclesiastical proceedings That stupendious Fanatick Hackett his fearful end Mr. Cambdens judgment touching the Innovators Their perseverance in their design of Innovation in King James his time and afterwards The pretended taking away the Coercive power from the Ecclesiastical Courts how gained what use was made of it by the Innovators and how they boasted of their benefit by it Two passages in the Long Parliament touching two Inconformists Page 1. Chap. II. The two Proviso's in the late Act that takes away the doubt touching Coercive power in Ecclesiastical Courts Dr. Cosens Apologie for sundry proceedings by Jurisdiction Ecclesiastical That groundless Opinion That a several Royal assent to the executing of every particular Canon is required is confuted The validity of the Ecelesiastical Laws The clamours of Inconformists Innovators and Fanaticks against the putting of Ecclesiastical Laws in execution though the Ecclesiastical Officers and Ministers are by Act of Parliament severely commanded to do it p. 10. Chap. III. The Heads of the several Chapters in that Apologie of Doctor Cosens Part 1. p. 27. Chap. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A summary relation of what Dr. Cosens in his Apologie hath asserted and made good by Gods Word the practice of the Primitive Christians the opinion of the Fathers the Laws Canon and Civil and the Laws of the Land allowing and warranting them The like practice at Common Law and at Geneva and other places pretending strict Reformation p. 24. Chap. V. That it is consonant to Gods Word to give such an Oath Ex officio or otherwise p. 28. Chap. VI. That the opinion and practice of the Primitive Christians and the Fathers of the Church was to administer such Oath Ex officio or upon Accusation and for Purgation Canonical with the practice at Geneva p. 33. Chap. VII That the like practice touching these Oaths is and was in all Forreign Christian Nations and other Nations not Christian guided onely by the Light of Nature p. 37. Chap. VIII That by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that Oath according to the Canon and Ecclesiastical Laws p. 39. Chap. IX That Oaths administred to parties touching matters damageable criminal and penal to themselves are urged and required by Temporal Courts and by the Laws of the Realm p. 41. Chap. X. The inconveniences and hurt that probably may follow by the forbidding the ministring of an Oath Ex officio or any other Oath whereby such person to whom the same is tendered or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment Praise of the Civil Laws Civilians first and last and greatest Sufferers Amity 'twixt both Robes His Majesties and the Lord Chancellors savours to Civilians TOUCHING The OATH EX OFFICIO AND CANONICAL PURGATION CHAP. I. The endeavours of the Innovators to change the course of Ecclesiasticall proceedings That stupendious Fanatick Hackett his fearful end Mr. Cambdens judgement touching the Innovators Their perseverance in their design of Innovation in King James his time and afterwards The pretended taking away the coercive power from the Ecclesiasticall Courts how gained what use was made of it by the Innovators and how they boasted of their benefit by it Two passages in the Long-Parliament touching two Inconformists FOR many years together now last past some men have very earnestly endeavoured to have taken away or at leastwise have much alter'd the proceedings in the Ecclesiacal Courts of this Kingdom used according to His Majesties Ecclesiastical Laws touching the Administration of the Oath ex officio and at the instance or promotion of a party accusing or stirring up the Judges Office to any party accus'd or call'd or enquired after by the Judge Ecclesiasticall ex officio or otherwise whereby as they phrase it he must confess or accuse himself and so render himself liable to penalty or censure In the Reign of Queen Elizabeth they prosecuted it vehemently if not violently and as before that time some Anabaptists in Germany had done the like in such Cases Of their practises that way here that most Faithful Learned and Grave Historion of ours Mr. Cambden gives us an account in his Annals of the Reign of Queen Elizabeth printed at Leyden in the Low-Countries 1625. It is in the year 1590. After he hath there given a Relation of that stupendious and blasphemous Fanatick Hackett of his beginning how illiterate insolent fierce and revengeful he was that meeting one that had been his School-Master an ingenuous person under a colour of embracing him bit off his Nose and the poor miserable deformed man beseeching him to give it him again that whilst it was green and fresh he might sow it again to his face he would not do it but like a dogge swallowed it down and so averse was he to all piety that that heavenly Doctrine he had heard in Sermons he made sport with it with his pot-Companions on the Ale-benches Afterwards when he had prodigally wasted his Estate which he had got with a Widow whom he had marryed on a sudain he claps on the vizard of most specious sanctity is wholly taken up in hearing Sermons reading the Scriptures
others were these A grave and able Civilian and then a Member of the House of Commons was accused by an Inconformist that he had excommunicated him for not kneeling at the Communion when he received I was present and saw and heard it and to my best remembrance it was for not kneeling at the Communion at least it was for not performing some other Ceremony so that as to this matter 't is all one The Civilian being called up to a Committee of the Lords then in the Long Parliament out of the House of Commons to answer it By his Counsel he desir'd time to send into the Countrey where it was pretended to be done to know whether he had done any such thing it being impossible for him to remember every particular that he had done in his Jurisdiction and that particular he said he did not remember He had time given and informed himself thereof and at the next appointed time of his appearance by his Counsel pleaded that he had done no such thing as he was accused of The Accuser said then it was done by his Deputy or Surrogate That was denyed too Then he said he was sure it was done by the Spiritual Court and so it was but not by any Spiritual Court where that Civilian had to do Then the Civilian pleaded that if he had done that whereof he was accused he doubted not but he could have justified it but since it appears that he was unjustly accus'd and reap'd some discredit by being thus question'd and had been put to trouble and charge thereabouts he desired reparation and charges which by many of the Lords was yielded to yet by the major part it was carried that he ought not to have it and the reason was rendred because it would deter others from complaining Si satis est accusasse quis erit innocens Nay how far may it tend to the ruine of some if some men be maliciously set upon them to multiply accusations against them The other was Another Inconformist complaining of his being question'd in the Ecclesiastical Courts for his Inconformity In defence it was alledged against him and proved that he had said He would as soon bow at the name of Judas as at the Name of JESUS and I diligently enquir'd but never heard he was punish'd for it But would there had been no more then these though these are too much Would some had not gloried had not triumphed in their shame Bella geri placuit nullos habitura triumphos CHAP. II. The two Proviso's in the late Act that takes away the doubt touching Coercive power in Ecclesiastical Courts Dr. Cosens Apology for sundry proceedings by Jurisdiction Ecclesiastical That groundless Opinion That a several Royal assent to the executing of every particular Canon is requir'd is confuted The validity of the Ecclesiastical Laws The clamours of Inconformists Innovators and Fanaticks against the putting of Ecclesiastical Laws in execution though the Ecclesiastical Officers and Ministers are by Act of Parliament severely commanded to do it BY the late Act before mentioned where the Doubt so it is called there about the Coercive power in Ecclesiastical Courts is clear'd and taken away One Proviso is That that Act nor any thing therein conteined shall extend or be construed to extend to give unto any Archbishop or Bishop or any other Spiritual or Ecclesiastical Judge c. any power or authority to exercise c. If any be peccant that way it ought to be amended Another Proviso forbids any Archbishop Bishop c. to tender or administer unto any person the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment This being now forbidden by Act of Parliament every Subject ought to give obedience therein But some now insulting and upbraiding the Ecclesiastical Courts that all this while they have oppressed the Subject with that proceeding which the Parliament hath taken away renewing the old cry in Queen Elizabeths time and ever since against such proceedings which never till now I alwayes except what was done in the late times of usurped government were legally prohibited Though I am far from questioning the reasons whereupon that Act passed but do humbly submit to it both in word and practice yet I hope it will be allowed to make some defence against such persons as so tax such proceedings before the passing of this Act. And herein I shall follow that most able Civilian Richard Cosin Doctor of the Laws and Dean of the Arches in that his Apology for sundry proceedings by Jurisdiction Ecclesiastical c. Mr. Cambden as before mentions him with honour as surely he well deserv'd and that work of his if nothing else evinces it Mr. Swinburn in that Work of his of Last Wills and Testaments printed at London for the Company of Stationers 1611. in the first part sect 6. numb 8. fol. 17. writes thus of him and of that Work of his that Apology I find saith he written by that learned and no less religious man Doctor Cosins as I take it in that worthy Work entituled An Apology for sundry proceedings by Jurisdiction Ecclesiastical c. and so he goes on Upon this subject he hath written so fully that I believe little can be added to it and if any should go about it excepting such additions as well may be added by reason of some emergencies since the time he wrote and some other additions and explications not derogatory from him they would be forced very much to plough with his Heyfer which would but look too much like a Plagiary I could wish the book were reprinted and haply it will be so which may serve for Topicks to this subject For as all the Poets after Homer are said to drink of his Fountain according to that picture or statue of his that denotes as much with that Inscription Ridet anhelantem post se vestigia turbam Even so must I conceive all do from Doctor Cosin that shall write upon this subject I was upon Epitomizing that Apology of his and had made some progress therein but upon second thoughts desisted thinking it better to refer the Reader to him rather then to adventure to abbreviate him and thereby perhaps wrong him an offence that too many Epitomizers are guilty of therefore I say I shall onely make use of some Notes as confessed arrows out of his quiver and sippe of some others elsewhere and point the Reader to his full stream where any that list may drink their fill Upon these words in the late Act Provided that this Act. nor any thing therein contained shall extend or be construed to extend or give unto any Archbishop Bishop c. any power or authority to exercise or execute c. any jurisdiction which they
Ecclesiastical or Civil within this Realm be not derived or claimed from the Crown as to the execution of it at least then the former objection were of force but another Act of Parliament 8 Eliz. c. 1. shews the contrary sufficiently where all Ecclesiastical Jurisdiction is acknowledged United to the Crown as there fully and that very clause 1 Eliz. 1. together with His Majesties Letters Patents directed forth for confirming Archbishops and Bishops is brought in the preamble thereof as a strong proof without scruple or ambiguity that the authority and jurisdiction by the Clergy executed is thereby given them from Her Majesty This also were there nothing else were sufficient to entitle them the Kings Majesties Ecclesiastical Laws as well as other Laws are called the Kings Majesties Laws But they are up and down in the Acts of Parliament called the Kings and the Queens Ecclesiastical Laws 1 Eliz. c. 2. 5 Eliz. c. 25. 25 H. 8.27 c. and even by the Note-gatherer that great oppugner against whom the Doctor writeth they are called the Ecclesiastical Laws of England And in this late Act above mentioned they are called the Kings Majesties Ecclesiastical Laws Yet for executing of these Laws by the Ecclesiastical Judges what out-cries were made against them especially in the beginning of the late Long Panliament by His late Majesty of blessed memory called the Black Parliament Summa imis miscendo and what favours were then afforded to those Boutefeu's as we have since had sad experience of them God grant we may be cafeful of them for the future I am unwilling to recite Ecclesiastical Judges are not onely tyed by their offices and * Canon 117. Canon Constitut 1604. Oaths but at least in some particulars for which they have though most unjustly been much clamour'd against are most severely by Act of Parliament charged to see the execution of if not of others too yet of one especial Ecclesiastical Law for their care wherein some of them have been well-nigh ruined that is that according to that Act of Parliament 1 Eliz. c. 2. For uniformity of Prayer and Administration of Sacraments every person should diligently and faithfully resort to their Parish Church or Chappel where Common prayer and such Services of God shall be used upon every Sunday and other dayes ordeined and used to be kept as Holy-dayes and then and there to abide orderly and soberly during the time of Common prayer Preaching or other Service of God to be used and ministred c. Then follows thus And for due execution hereof the Queens most excellent Majesty the Lords Temporal and all the Commons in this present Parliament assembled doth in Gods name earnestly require and charge all the Archbishops Bishops and other Ordinaries that they shall endeavour themselves to the utmost of their knowledge that the due and true execution hereof may be had throughout their Dioceses and charges as they will answer before God for such evils and plagues wherewith Almighty God may justly punish his people for neglecting this good and wholsome Law Who would think had we not sadly felt their designs that the great Magnifiers of Parliaments for which I discommend them not so they keep within due compass would have been so bitter against those that acted but according to these strict Parliamentary charges CHAP. III. The Heads of the several Chapters in that Apologie of Doctor Cosens Part 1. C. 1 THe particular distribution of causes proved to be of Ecclesiastical cognizance besides Testamentary and Matrimonial With a discourse of C. 2 Bishops Certificates against persons excommunicated being a special point of their voluntary Jurisdiction where there is no party that prosecuteth C. 3 That matters in the former Chapter adjoyned to Testamentary and Matrimonial causes though properly they be not of Testament or Matrimony are of Ecclesiastical cognizance and how far C. 4 General proofs out of Statutes that sundry other causes besides Testamentary and Matrimonial are of Ecclesiastical cognizance C. 5 That Suits for Tithes of Benefices upon voidance or spoliation likewise that Suits for Tithes Oblations Mortuaries and Pensions Procurations c. are of Ecclesiastical Jurisdiction is proved by Statutes especially C. 6 That Suits for right of Tithes belong to the Ecclesiastical Jurisdiction and how far is shewed out of the books and Reports of the Common Law so of places of Burial and Church-yards and of Pensions Mortuaries Oblations c. C. 7 Of right to have a Curate and of Contributions to Reparations and to other things required in Churches C. 8 Proofs in general that sundry crimes and offences are punishable by Ecclesiastical Jurisdiction and namely Idolatry Heresie Perjury or Laesio fidei and how far the last of these is there to be corrected also of disturbance of Divine Service or not frequenting of it and neglect of the Sacraments C. 9 That Simony Usury Defamation or Slander beating of a Clerk Sacrilege Brawling or Fighting in Church or Church-yard Dilapidations or waste of an Ecclesiastical Living and all Incontinency are punishable by Ecclesiastical authority and how far C. 10 Several other matters reckoned in this tenth Chapter as ordeining of real Compositions and disannulling of them suspension ab ingressu Ecclesiae c. Interdiction of a Church Sequestration Excommunication Parish-Clerks fees Goods due to a Church deteined Blasphemy Idolatry Apostasie from Christianity violation and prophanation of the Sabbath Subornation of Perjury Attestation of a womans chastity Drunkenness filthy speech violation of a Sequestration or Induction hindering and disturbance to carry away Tithes enjoyning of Penance corporal contempt of obeying the Decrees of the Ecclesiastical Judge Fees due in Ecclesiastical Courts Curates and Clerks wages Forgery in an Ecclesiastical matter as of Letters Testimonial of Orders of Institution burying of excommunicate persons communicating with excommunicate persons frequenters of Conventicles digging up of Corps buried and generally for any matter Ecclesiastical indefinitely by the Articuls cleri may be cited All these are of Ecclesiastical Jurisdiction and proofs that any Subjeet Lay or other may be cited in any cause Ecclesiastical C. 11 That Lay-men may be cited and urged to take Oaths in other causes then Testamentary and Matrimonial C. 12 The grounds of the opinions to the contrary examined and confuted C. 13 That judgment of Heresie still remaineth at the Common Law in Judges Ecclesiastical and that the Proviso touching Heresie in the Statute 1 Eliz. 1. is onely spoken of Ecclesiastical Commissioners thereby authorized C. 14 That by the Statute Her Majesty may commit authority and they may take and use for Ecclesiastical causes Attachments Imprisonments and Fines Herein he writes also how the Law was at that time C. 15 That an Ecclesiastical person may be deprived of his Benefice without indictment or prosecution of party C. 16 That after forty dayes an excommunicate person may be otherwise punished then upon the Writ De Excommunicato capiendo and that the said Writ may and ought to be awarded
Jethro's advice should stand in judgment from morning to the evening That last is which some doubtless for want of understanding would have the Oath so given them that after they had taken the Oath there should be no farther enquiry And this they hold grounding themselves upon that sentence of St. Paul An Oath is the end of all strife Heb. 6.16 I stand not upon it that it may be so interpreted that the original Greek word there peràs rather is the State of the Controversie then the End of it But be it so the end let the Oath be the end but not every Oath or by whomsoever taken or howsoever performed this can scarcely be thought to proceed from a man in his right wits but I hope it must be such an Oath of the credit whereof there may be no contradiction in case the Contradiction ought to be ended by that Oath Wherefore if the Judge must end the Suite or Controversie without contradiction it must be so clear that no man even without Examination or after Examination will or can contradict it For to desire to free every Oath of every man from all Inquisition what is it but to plead for perjury What else is it but as it were upon warning given so by this kind of Authority given to sollicite men of loose Consciences to commit this wickednesse For whether the Actor or Defendent or Witness take it the Oath is of the same Conscience of the same face there 's an end if one will swear that what he sues for or complaines of is his is true presently he carries the Cause But afterwards it must be unlawful to enquire whether he hath sworn true or no Because an Oath is the end of all Controversie If this be granted it makes well for perjured men Let them make their peace with God as well as they can from the Law they need fear nothing nor shall be punished by the eare for what they sinned by their mouth How juster is that Yea truly if the Oath be sound let the Inquisition thereupon be twice or thrice or seaven times if it be thought fit it will alwayes as out of a furnace come forth more clear and pure and the very Inqusition it self will become an acquisition of more credit But if the Oath be not of good but doubtful credit or suspected Let it be inquired into and let Justice break unjust bonds Surely this is reason and is it only reason Doth not the Law say the same Whether one contend by oath either in his own cause for himself or in anothers against another for himself For himself The woman of suspected chastity when she had upon her oath denyed the adultery laying a most heavy curse upon her self if she were guilty was she thereupon presently dismiss'd for an Oath is the end of all controversie No a new question was made whether she had sworn truly or no for proof whereof she was to drink the Bitter waters which would be the confirmers of the Oath if true and the revengers if false Num. 5.24 Against another When the Law had provided that out of the mouth of two or three witnesses who being sworn had given testimony against a man the matter should be established Deut. 19.15 Lest any man should take humane testimonies for Divine Oracles in the next Verse 't is commanded that the suspected witnesse must stand before the Lord the Priests and it must be enquired into whether he hath carried himself sincerely and truly in the testimony he hath given but if he be convicted of falsity then shall he be punished as he should have been whom he complained of But I shall transgress upon the time and upon the Church too the Clock having a while ago called us off if I should further follow these trifles which whoever list may bray with arguments they of their own accord so overflow therefore I restore you to your selves and conclude If as the Prophet saith Isa 28.17 this Judgment which we use be laid to the Line and Righteousnesse to the Plummet of Gods Word there shall be in those things no sin For the Magistrate to require and that from the party guilty or defendant especially if the cause be not capital or a cause of Bloud an Oath and that he may do it so far whether it be that the controversie may thereby be set upon its foundation whilest the state of the cause is sought for or that the truth of the proofs may be made evident whilest the question is handled Nor does the ends of the Oath or the order or the examination offend against Divinity and therefore cannot be declined They that decline it first they do it out of ignorance of Gods Law then the example is dangerous that one may thus for his pleasure enquire into publick judgments without judgment if we may call into question the rest of the affairs of the Kingdom and the moments of the Commonwealth lastly the Law it self if it make not for us That God Almighty may avert this from us to whom turning our selves let us pray that he will give us grace to be modestly wise and sober in all things to see in our minds how irreligious it is how unchristian to decline the judgments of our Nation but rather with all our endeavour with all the strength and force of our Wit to maintain them which maintain the Commonwealth and us all for next after God and his service most true is that saying of Elihu Job 36.17 Judgment and Justice maintain all things Upon the consideration most especially of what hath been written by Dr. Cosens in that Apology touching the Oath Ex officio and Purgation and what is said in that short Manuscript and in the Lord Bishop Andrews Determination thereupon and of the inconveniences and hurt that probably may be feared to ensue upon the prohibiting that Oath and Purgation together with the practice still at Common Law in the like cases and the rest that is here set forth as it is hoped that Act may be thought fit to be revised and re-examined and perhaps altered so with the like humility all that is said or shall be said in this Treatise is most submisly tendered to His Sacred Majesty the Lords Spiritual and Temporal and the Commons in this happy Parliament now assembled to be weighed by them if so to their Wisdoms it shall be thought fit otherwise to be as unsaid and retracted as is every thing there if it be dissonant to Gods Word His Majesties Prerogative the Laws of Church or State or the known Laws of the Land or the just policy and government in Church or State or against Christian charity or brotherly love Should any man object That some Civilians desired that this Act whereby the Oath Ex officio and Purgation is forbidden should passe at the end of the recess of Parliament the latter end of this last Summer 1661. when many other Acts of great concernment
were in agitation and some then passed and some stayed supposed that they will be resumed and considered of at the next meeting of Parliament that I say this Act should not stay as some would have had it till that next meeting but rather pass now though with these Proviso's on it I can say no more then this that Certa incertis praferenda if they could not have all they would have yet to have something that in a manner wanted all was but reasonable prudence it had perhaps savoured of morosity to have done otherwise especially considering that those that have long fasted would be glad to eat though I hope these that administred this food to them did not fear they would as hungry men use to do feed too fast to their hurt not to their nourishment and therefore did set the less meat before them but upon a pause after this refreshment there may be a supply Neither need I humbly conceive any thing that is already done hinder the review or alteration of this Act in that point For it is no new thing nor discommendable but contrary to make Laws upon present reasons or emergencies and yet upon future accidents or contingencies and variation of the times and occasions and other necessary requisites which could not well be foreseen at the making of these Laws nor perhaps dreamt on till they happened to alter change or repeal the former Hereof many instances might be given but in so plain a case I shall mention but one and that in a matter of Ecclesiastical cognisance touching Precontracts of Matrimony in 32 H. 8. c. 38. 32 H. 8. cap. 38. What Marriages are lawful and what not WHereas heretofore the usurped power of the Bishop of Rome hath alwayes entangled and troubled the méer jurisdiction and regall power of this Realm of England and also unquieted much the subjects of the same by his usurped power in them as by making that unlawfull which by Gods word is lawfull both in marriages and other things as hereafter shall appear more at length and till now of late in our Soberaign Lords time which is otherwise by learning taught then his predecessors in times past long time have béen hath so continued the same whereof yet some sparks he left which hereafter might kindle a greater fire and so remaining his power not to seem utterly extinct Therefore it is thought most convenient to the Kings Highness his Lords spirituall and temporal with the Commons of this Realm assembled in this present Parliament that two things specially for this time be with diligence provided for whereby many inconveniences have ensued and many moe else mought ensue and follow as where heretofore divers and many persons after long continuance together in Matrimony without any allegation of either of the parties or any other at their marriage why the same matrimony should not be good just and lawful and after the same Matrimony solemnized and consummate by carnal knowledge and also sometime fruit of children ensued of the same Marriage upon pretence of a former contract made and not consummate by carnal copulation for proof whereof two witnesses by that Law were onely required béen divorced and separate contrary to Gods Law and so the true Matrimony both solemnized in the face of the Church and consummate with bodily knowledge and confirmed also with the fruit of children had betwéen them clearly frustrate and dissolved Further also by reason of other prohibitions then Gods Law admitteth for their lucre by that Court invented the dispensations whereof they alwayes reserved to themselves as in kindred or affinity betwéen Cousin-germans and so to the fourth and fourth degrée carnal knowledge of any of the same kin or affinity before in such outward degrées which else were lawful and be not prohibited by Gods Law and all because they would get money by it and kéep a reputation of their usurped jurisdiction whereby not onely much discord betwéen lawful married persons hath contrary to Gods Ordinance arisen much debate and suit at the Law with wrongful vexation and great damage of the innocent party hath béen procured and many just marriages brought in doubt and danger of undoing and also many times undone and lawful heirs disherited whereof there had never else but for his vain-glorious usurpation béen moved any such question since fréedom in them was given by Gods Law which ought to be most sure and certain But that notwithstanding Marriages have béen brought into such an uncertainty thereby that no Marriage could be surely knit and bounden but it should lye in either of the parties power and arbiter casting away the fear of God by means and compasses to prove a precontract a kindred and aliance or a carnal knowledge to defeat the same and so under the pretence of these allegations afore rehearsed to live all the dayes of their life in detestable Adultery to the utter destruction of their own souls and the provocation of the terrible wrath of God upon the places where such abominations were used and suffered Be it therefore enacted by the King our Soveraign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same That from the first day of the Moneth of July next coming in the year of our Lord God 1540. all and every such Marriages as within this Church of England shall be contracted betwéen lawful persons as by this Act we declare all persons to be lawful that be not prohibited by Gods Law to marry such being Marriages contracted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had therein betwéen the parties so married shall be by authority of this present Parliament aforesaid déemed judged and taken to be lawful good just and indissoluble notwithstanding any Precontract or Precontracts of Matrimony not consummate with bodily knowledge which either of the parties so married or both shall have made with any other person or persons before the time of contracting that marriage which is solemnized and consummate or whereof such fruit is ensued or may ensue as afore and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise And that no reservation or prohibition Gods Law except shall trouble or impeach any marriage without the Levitical degrées And that no person of with estate degrée or condition he or she be shall after the said first day of the Moneth of July aforesaid be admitted to any of the Spiritual Courts within this the Kings Realm or any his Graces other Lands and Dominions to any processe plea or allegation contrary to this foresaid Act. Rep. 1 2 P. M. 8. Rep. 1 El. 1. This Act was not many years after repealed as followeth 2 3 Ed. 6. cap. 23. Part of the Statute of Precontracts repealed Whereas in the two and thirtieth year of the reign of the late King of famous
easily done thus The manner how it may be constantly observed In the House of Commons each long seat in the uppermost part thereof down towards the door to contain thirty or forty partitions or more or less as the length of the seat will bear so that in each partition there could not one man sit and an order made which seat should be first filled and which next and so successively one after another and none to go into the second seat till the first were filled nor into the third till the second were filled and so to the rest in like manner And to make it at the first view clear the number of every partition in order to be in great legible figures set over the head of the person that sits in that partition as 1. 2. 3. 4. c. then it being known being made so plain and certain how many persons each seat when filled contained as thirty or forty c. each seat being to contain equal numbers if that may be at least each seat of the side so many and each at the end so many equally It is quickly determined by seeing how many seats are filled or how many are in such seats whether the number required to be at the passing such Vote be then there or not The seats for Privy Counsellors may notwithstanding this be distinct and kept for them and for Committees some such course to be taken too if need were in a due proportion In the Lords House such distinctions of seats and partitions cannot be conveniently so done in regard of the requisite priority of place there which is otherwise then in the House of Commons yet the competent number there that House being not near so numerous as the Commons House which had need be as many in proportion as the Commons House might have been quickly and easily discernable The number of forty in the Commons House and a much lesse in the Lords House though by many accounted to be a competent number to make up an House we have seen how upon design ill use was made of it in the Long Parliament which could not easily perhaps not at all have been done with so great a number To instance no more the pitiful number of Peers present at the passing that pretended Ordinance for the late Lord Archbishop of Canterbury's death may be thought on Fees to the Officers of Parliament Some advised that it might have been considered what Fees should have been taken by the Officers of Parliament Clerks Serjeants and other Officers some then conceiving them to have been very high Touching new Laws Declarations c. to be made and old Laws to be repealed and altered WE have seen in that Long Parliament what ill constructions were made by some men of Precedents in foregoing Parliaments accounting what has been once done there quo jure qua injuria right and good and to be deduced into practice even those strange irregular acts in the tumultuous times of Richard the second and Henry the fourth nay we have seen how Spensers Treason distinguishing the person and office of the King so declared to be Treason by Act of Parliament many ages since even urged for right to instance no more Some have advised that such precedents acts and proceedings should have been examined and by publick Declaration by Act of Parliament purged or abolished or declared illegal Acts of Oblivion c. And that if but for that reason of preventing that male construction of citing ill precedents for Law that an inspection should have been made into the Acts of Amnesty and Oblivion passed in the first years of the Long Parliament and also that passed this last Parliament We have seen especially if we looked Northward how soon after such Acts of Indempnity and Amnesty the Delinquents as though they thought themselves justified in their former crimes fell again into the same And that there should in those past and due care be had for the same in the future have been a specification made of the crimes and offences intended there to have been pardoned and put into oblivion lest otherwise implicitely and insensibly they might have been taken not to be crimes and Loyalty and Fidelity tacitly at least accounted crimes and so creep into precedent and example for the future And that the first Paragraphs in the late Act of Pardon Indempnity and Oblivion might if thought fit be considered of where in the first place are pardoned All and all manner of Treasons Misprisions of Treason Murthers Felonies and Offences crimes c. counselled commanded acted or done since the first day of January 1637. by any persons before the 24. day of June 1660 c. by vertue or colour of any command pâ—…er authority commission warrant or instructions from His late Majesty King Charles or His Majesty that now is Though there might be some obliquity error or abuse in the execution of Commissions from their Majesties yet some stumble at these expressions of Treasons Murther c. to be committed by Commission from the King as without all question was committed by Commissions granted by others and yet here they look like equal and eaven crimes which no loyal man can own It neither hurts nor hinders the pardon but rather more strengthens it that the crimes pardoned are specified and let the application be made onely to them that are guilty of them not to the guiltlesse and such as deserve honour and reward for that which some would at least imply to be criminal much lesse no ignominy or reproach Surely the Loyal party that acted according to the known Laws for so acting needed not His Majesties pardon Facinus quos inquinat aequat Some men cannot think themselves cleared except they can taint others guiltlesse with the imputation at least of these crimes whereof they themselves onely are culpable and it is a question whether their true meaning be not that they would have an Exculpation a term we have more lately had from the North and even a justification from their known crimes at least to be accounted no greater crimes then the actions of those that acted by the Kings authority according to the known Laws of the Land which they well know are no crimes but the contrary It is obvious to every eye how some have sweat to have justified all the illegal Acts of the Long Parliament Some make little or nothing of the endeavours that then were to have killed the late King in Battel but onely of putting him to death in cold bloud Restitution of some goods where the property is not altered And that if thought fit that such goods whereof the property is not altered as Houshold-stuff Plate Furniture of beds Pictures Hangings eminent Jewels or such like plundered or taken away wrongfully either by pretended Sequestrations spoil or otherwise should be restored to the owners or in some cases a just value repaid for them with a just consideration to be had of the parties from whom
pretended afterwards to excuse him and that he spoke but according to the words in the Statute of 21 H. 8.21 where it is said We are free from any subjection to any mans Laws but onely to such as have been devised made and ordeined within this Realm for the wealth of the same c. which words are intended against the Papal Usurpation imposing Laws upon us The illegal Preface to the Propositions at the Isle of Wight As also if it be thought fitting that that Preface to the Propositions sent by the House to the late King at the Isle of Wight which seem to strike at if not to take away the Kings Negative voice in Parliament expresly contrary to many Acts of Parliament the Kings most known Prerogative and the most known Custom and Law of the Land be declared illegal and derogatory to His Majesties Prerogative and just right Rectifying of translation of some words As also if it shall be thought fitting that the translation of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Rom. 13.1 to higher powers altered to the supreme powers for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Pet. 2.13 is translated whether to the King as supreme The two Houses and Powers inferior many degrees to them have by some been interpreted to be meant by higher powers and strangely hath it been wrested if not exclusive of the King As also if it shall be thought fitting that that expression Illegal Declaration about the time of His Majesties coming over in one of the Declarations or Remonstrances that the Government was by the King Lords and Commons being derogatory to His Majesties Prerogative and Legislative power and the Government being in him radically and but derivatively and subordinately in any others for and under him Therefore to be considered of altered and amended The Printing-press As also if it shall be thought fit that the Presse be carefully looked into that no seditious Books or Pamphlets be vented to poyson the people or to confirm any in their bad principles The want of this care hath grown into a great Seminary of mischief which if nothing but our sad experience of it should make us more wary for the future A body of the Law to be framed As also if it shall be thought fit that according as was begun by the late Lord Chancellor the Lord Viscount St. Albanes which as 't is said King James put him upon a Body of the Laws should be digested and compiled and then by authority of Parliament be ratified Further touching Ecclesiastical matters Ecclesiastical Courts to be Courts of Record The Ecclesiastical Courts proceeding according to His Majesties Ecclesiastical Laws sitting under the same Crown with all other Laws some advise if it shall be thought fit that to all intents and purposes of Law they should be Courts of Record as well as any other Courts Reading the Articles of Religion By the Statute 31 Eliz. c. 12. the Incumbent is to read the Articles of Religion within two moneths after his Induction and 't is said some have not taken Induction at all because they would not read the Articles Had the Statute limited it within that time after Institution it had met with that fallacy Signing with the Cross in Baptism In the form for Private Baptism when the child privately baptised is afterwards brought to the Church to have the Baptism published at the receiving the child then into the Congregation there is no Interrogatory whether in the private Baptisme it had been signed with the sign of the Crosse as commonly if not altogether they are not neither is there any mention then at the publishing of the Baptisme of so signing it And it hath been found that some persons have pretended weaknesse in the Infant when it was not so onely to avoid the signing of it with the Crosse Churching of women privately There being no Law that allowes private Churching of women it is wished it might be alwayes publick in the Church and with a Vail and if within the moneth the woman be not able to come to Church to defer it till the recovery of her health Touching Absolution In Cathedral and Collegiate Churches usually one of the Singing-men though in orders gives the Absolution and the Blessing at the end of Service which some wish might be done by the Bishop if present or Dean or some Dignitary or more eminent person present And that the Anthems and other parts of the Service which are performed singing or in a singing tone may be made more intelligible to all the Auditors who many of them are scandalized by the contrary which might be helped by some small alteration in the composure so that as sometimes was practised and that without any hinderance to the harmony first one of the Singing-men to declare out of what Chapter and Verses or part of the Scripture that Anthem is taken or what Hymn or Spiritual Song it is and then immediately before the singing each Verse with a clear audible voice to read it This would help much but the best way were that the Singing-men and Choristers were taught exactly to sing most articulately clearly and plainly and not to drown the words in their mouths that they cannot be understood but openly and distinctly sound forth every syllable that they might be as well or better understood then when they onely read them And this hath been most commendably done by some expert Artists that way and might by all Mr. John Frost late Westminster and one of the Gentlemen of His Majesties Chappel Royal gave a most clear and most deservedly worthy to be imitated precedent hereof then whom never any man read more plain and clear and yet what he sung was if possible more plain and clear then what he read Touching the Writ De excommunicato capiendo By the Statute for the tryal De Excommunicato capiendo the person excommunicate is to be published in his Parish Church which sometimes the Minister refuses or there is no Minister In which case 't is wished it might serve to have it fixed upon the Church dore upon the Lords day or a copy left at his dwelling house and the forty dayes to commence from that time FINIS A Table of the Particulars contained in the Notes touching alteration of some Laws TOuching Parliament proceedings Page 97 Ordinance of Paerliament ibid. Privilege of Parliament ibid. The Bishops Protestation Page 98 The King none of the three Estates ibid. Proceedings of the House of Commons Page 99 Age of Parliament-men Page 102 Election of Parliament-men Page 103 The great number of Boroughs and Corporations ibid. Touching the manner of proceeding in Parliament Page 104 A competent number of Parliament-men to be at every debate Page 107 The manner how it may be constantly observed ibid. Fees of the Officers of Parliament Page 108 Touching new Laws ibid. Acts of Oblivion c. Page 109 Restitution of some goods where the property is not altered Page 110 Reparation to persons spoyled Page 111 Touching the Long Parliament ibid. The keeping the Records of the Tower Page 113 The Militia ibid. Oaths of Allegeance and Supremacy explained ibid. Robbery the Law to be altered Page 114 Against condemnation upon a single testimony Page 115 Touching Juries Page 116 New Laws to be made upon new accidents Page 117 Making of Eunuchs ibid. Stealing of Winding-sheets ibid. Stealing of men Page 118 Against delayes in Courts ibid. Fees in all Courts ibid. About examination of witnesses in defence ibid. Against the examination of witnesses in the hearing of one another Page 119 Reparation to persons wrong fully accused Page 120 The Act touching the Court of Wards and Tenures to be repeated Page 120 Rates to be set for buying commodities Page 121 About dignity and precedency ibid. Against the Act for limitation of Actions Page 122 Against multiplicity of Statutes upon the same subject ibid. The Clergies Proctors in the House of Commons Page 123 About augmentation of Vicaridges ibid. Against Mensals Page 124 Touching the bounds of Jurisdictions Page 125 The Ordinaries power about distribution of portions ibid. Against concurrence of Jurisdictions ibid. Wills to be transmitted into the several Counties Page 126 Degrees of Marriage prohibited ibid. About the suppression of seditious books Page 127 Spensers Treason ibid. Goodwins book ibid. Bucks book ibid. Sir Edward Cooks writings Page 128 Illegal and seditious Speeches ibid. The illegal Preface to the Propositions at the Isle of Wight Page 129 Rectifying the Translation of some words ibid. Illegal Declarations Page 130 The Printing-press ibid. A body of the Law to be framed ibid. Ecclesiastical Courts to be Courts of Record ibid. Reading the Articles of Religion ibid. Signing with the Cross in Baptism ibid. Churching of women privately Page 131 Touching Absolution ibid. Touching the Writ De excommunicato capiendo Page 132 FINIS
may be supposed partiall and interessed Yet even in the subject matter of these Memoranda he is not unversed if not more particularly yet as comprehended in that generality of Learning and Knowledge whereto he hath from his younger yeares been habituated to at the feet of such a States-man as was his most accomplished Father and such Instructors as he by his especial and most discerning choice appointed him and all this perfected up by most advantagious acquisition by travel and residence in forraign parts amongst those who are justly ranked in the number of the most Civil Learned and Wise in Europe and so consequently in the Universe and so need not mine or others instruction herein more then others not professed Lawyers But all that is comprised in this Model both in the Memoranda's and the Notes somewhat grounded upon some yeares experience I have had and tending as before at least in my well-meaning opinion to the publick good solely is so most humbly offered to consideration if by those in Authority it be thought fit He is I conceive very fit to further and advance this both in consideration of his abilities and his being impowred as others of his noble rank and quality in the Supreme Judicatory of this Kingdom and by his own Genius and propensity willing and desirous to effect any thing ayming that way as less cannot be expected from the Son of such a Father and Husband of such a wife his most noble and most vertuous Lady a pair in respect of the mutual parity of their most intense conjugal affection and parentizing love to Loyalty Justice and Honour hereditary vertues flowing in their veines from their most Noble Loyally Gloriously Acting and Suffering Parents not easily parallel'd and therefore I have not so much Dedicated this to him as supplicated his effectual adminicular hand hereto Upon the whole matter as touching my self this Modell as also if not more especially the Notes subjoyn'd I having had no small share of Sufferings in the time of exilement of Monarch and Monarchy and so consequently of joy and gladness in the happy Restauration of both in my due gratitude and obligation both by tie of natural duty and of God and Mans Laws have made it part of my study to endeavour to contribute my well-meaning mite to the publick good and the prevention of such miseries for the future as too lately we have had too sad experience of Instances might be given of many that have published their endeavours heretofore to such publick ends which have not proved ineffectual and more especially Mr. Spencer touching the State of Ireland in Queen Elizabeths time If in any measure never so remote they may any whit help to attain to that end they aime at I shall be glad of it and with that true candour submissively offering them alwayes protesting as I now do that if there be any thing herein contrary to Gods word directly or indirectly or to His Majesties Prerogative or the known Laws of the Land Ecclesiastical or Temporal or the politick Government either in Church or State or which may give just offence I do hereby absolutely retract it as no wayes by me intended or thought of wishing this small taste may stir up others more able to make a further and better progress in this kind Anno 13. CAROLI II. Regis An Act for explanation of a Clause contained in an Act of Parliament made in the seventeenth year of the late King Charles entituled An Act for repeal of a branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical WHereas in an Act of Parliament made in the seventéenth year of the late King Charles entituled An Act for repeal of a branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical it is amongst other things enacted That no Archbishop Bishop nor Vicar General nor any Chancellor nor Commissary of any Archbishop Bishop or Vicar General nor any Ordinary whatsoever nor any other Spiritual or Ecclesiastical Iudge Officer or Minister of Iustice nor any other person or persons whatsoever exercising Spiritual or Ecclesiastical Power Authority or Iurisdiction by any Grant License or Commission of the Kings Majesty his Heirs or Successors or by any Power or Authority derived from the King his Heirs or Successors or otherwise shall from and after the first day of August which then shall be in the year of our Lord God One thousand six hundred for y one award impose or inflict any Pain Penalty Fine Amercement Imprisonment or other corporal punishment upon any of the Kings Subjects for any Contempt Misdemeanour Crime Offence matter or thing whatsoever belonging to Spiritual or Ecclesiastical Cognisance or Iurisdiction whereupon some doubt hath béen made that all ordinary Power of Coertion and Procéedings in Causes Ecclesiastical were taken away whereby the ordinary course of Iustice in Causes Ecclesiastical hath béen obstructed Be it therefore declared and Enacted by the Kings most excellent Majesty by and with the advice and consent of the Lords and Commons in this present Parliament assembled and by the Authority thereof That neither the said Act nor any thing therein contained doth or shall take away any ordinary Power or Authority from any of the said Archbishops Bishops or any other person or persons named as aforesaid but that they and every of them exercising Ecclesiastical Iurisdiction may procéed determine sentence execute and exercise all manner of Ecclesiastical Iurisdiction and all Censures and Coertions appertaining and belonging to the same before the making of the Act before recited in all causes and matters belonging to Ecclesiastical Iurisdiction according to the Kings Majesties Ecclesiastical Laws used and practised in this Realm in as ample manner and form as they did and might lawfully have done before the making of the said Act. And be it further enacted by the Authority aforesaid that the afore recited Act of decimo septimo Caroli and all the matters and clauses therein contained excepting what concerns the High Commission Court or the new erection of some such like Court by Commission shall be and is hereby repealed to all intents and purposes whatsoever Any thing clause or sentence in the said Act contained to the contrary notwithstanding Provided alwayes and it is hereby enacted That neither this Act nor any thing herein contained shall extend or be constâ—ued to revive or give force to the said branch of the said Statute made in the said first year of the Reign of the said late Quéen Elizabeth mentioned in the said Act of Parliament made in the said seventéenth year of the Reign of the said King Charles but that the said branch of the said Statute made in the said first year of the Reign of the said Quéen Elizabeth shall stand and be repealed in such sort as if this Act had never been made Provided also and it is hereby further enacted that it shall not be lawful for any Archbishop Bishop Vicar General Chancellor
might not have done before the year of our Lord 1639. or to abridge or diminish the Kings Majestics Supremacy in Ecclesiastical matters or affairs nor to confirm the Canons made in the year 1640. I say upon these words some are ready mistaking questionless the words and meaning of that Act to renew that old exploded Opinion or rather groundless Fancy That a several Royal assent to the executing of every particular Canon is required Hereto Doctor Cosin answers That admitting this were true then all the other opinions of those that oppugn the ordinary Jurisdiction Ecclesiastical stand in no stead and might be spared because this would cut off all at once For none that exercise ordinary Jurisdiction Ecclesiastical have it in particularity which by the oppugners seems to be meant otherwise then by permission of Law to every of their proceedings and impossible were it by reason of the infinity of it and troublesomness to procure such particular assent to the execution of every Canon His Majesties Delegates when Appeals are made to His Majesty in Chancery would signifie nothing could not exercise the power to them delegated by reason of the want of such particular assent and it is a gross absurdity to grant as even the Oppugners and Innovators do That Testamentary and Matrimonial causes are of Ecclesiastical cognizance to say nothing of the rest of Ecclesiastical causes and yet cannot by reason of this want be dispatched nor can be dealt in by any other authority according to any Law in force This would speak a defect in the publick Government that the Subject should have a right but no likely or ready mean to come by it and great offences by Law punishable and yet no man sufficiently authorized to execute these Laws Since the abrogation of Papal pretended Supremacy when the ancient rights of the Kings of England of being Supreme Governors over all persons within their Dominions as well in all Spiritual or Ecclesiastical things or causes as Temporal and that no forreign Prince Person Prelate State or Potentate hath or ought to have any jurisdiction power superiority preeminence or authority Ecclesiastical or Spiritual within this Realm and so forth as in the Act and the Oath Since these rights were as it were ex postliminio restored and declared to have been as they ever ought to have been in the Kings of England many Laws have been made in several Parliaments for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution thereof and some of the Ecclesiastical Laws were enlarged astered and explained * 25 H. 8.19 The Statutes for Delegates upon Appeals †27 H 8 130. 32 H 8.7 Not long after two Statutes for assistance of ordinary Ecclesiastical Jurisdiction and for the speedier recovery of Tithes in Courts Ecclesiastical * 34 35 H. 8 19. The like for the recovery of Pensions Procurations c. †1 Ed. 6. c. 2. In the time of Edw. 6. in a Statute since repealed by Queen Mary a great number of particular causes of Jurisdiction Ecclesiastical are there by the way rehearsed that Ordinaries and other Ecclesiastical Judges might and did then put in execution So 1 Mar. c. 3. 1 Eliz. c. 1. 5 Eliz c. 23. 9. That Perjury or Subornation in a Court Ecclesiastical shall and may be punished by such usual and ordinary Laws as heretofore have been and yet are used and frequented in the said Ecclesiastical Courts Which proveth the usual practice of Jurisdiction Ecclesiastical hitherto used without any special assent to be lawful So 13 Eliz. c. 4. c. 10. and many more in the same Queens time and King James and King Charles the First that blessed King and Martyr I say many are the Laws that have been made for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution of it and some of these Laws were enlarged altered and explained But never was there any Law Custom or Act of Parliament that required a several Royal assent to the executing of every particular Canon Many are the reasons which Dr. Cosens gives in the first Chapter of his Apology against that particular Assent wherein he shews his great candor and ingenuity and desire to give abundant satisfaction to all Opponents though never so unreasonable that were it not as clear as the Noon-tide light that no such particular assent is needful some might think that he fear'd his cause and be ready to say that Defensio nimis operosa reatum quasi arguit But touching the validity of the Ecclesiastical Laws there needs I conceive no more be said then what is expressed in that Act of Parliament 25 H. 8.19 the Ecclesiastical Laws that were in use and practice before that Statute are thereby established thus Provided that such Canons Constitutions Ordinances and Synods Provincial being already made which be not contrariant nor repugnant to the Laws Statutes and Customs of this Realm nor to the damage or hurt of the Kings Prerogative Royal shall now still be used and executed as they were before the making of this Act untill such time as they be viewed c. by the 32. persons mentioned in that Act which is not yet done The Ecclesiastical Laws which have been made since that Act and all that ever hereafter shall be made so long as that Statute stands in force the requisites in that Act being observ'd are thereby I conceive confirmed or to be confirmed The Submission and Petition of the Clergy mentioned in that Act is That they would not enact or put in ure any new Canons c. in their Convocation without the Kings Royal assent and authority in that behalf There it is said That the Convocation in the time coming shall alwayes be assembled by authority of the Kings Writ and that the Clergy must have the Kings most Royal assent and licence to make promulge and execute such Canons Constitutions and Ordinances Provincial and Synodal else they may not enact promulge or constitute any such Canons c. And this course hath ever since been observed Every Convocation called by His Majesties Writ and the Clergy had especial license from His Majesty to enact such Canons c. and to execute them The Provision following being observed which is this Provided that no Canons Constitutions or Ordinances shall be made or put in execution in this Realm by authority of the Convocation of the Clergy which shall be contrariant or repugnant to tho Prerogative Royal or the Customs Laws or Statutes of this Realm any thing contained in that Act to the contrary thereof notwithstanding If any be put in execution contrary to this Proviso and contrary to any after-Acts of Parliament whereby His Majesty hath further power acknowledged in causes Ecclesiastical then 't is illegal but that is much sooner alledged than proved The particular Ecclesiastical Laws in force have by Dr. Cosens and others been sufficiently demonstrated I humbly conceive In case any Jurisdiction
matters damageable criminal and penal to themselves are urged and acted by Temporal Courts and by the Laws of this Realm C. 7 Wherein are contained Answers to such Objections and Reasons as be made for proof of a contrariety or repugnancy in these Oaths unto the Statutes Laws or Customs of this Realm and a Reply to the Treatisours Answers made unto certain Objections supposed likely to be made in justification of this kind of Oath by the Temporal Laws C. 8 That ministring of such Oaths is by the Law of the Realm allowed unto Judges of Ecclesiastical Courts and some few Objections made to the contrary answered C. 9 That such Oath touching a mans own crime is allowed both by the Canon and Civil Laws how far and in what sort and that the like is establish'd and thought equal by the Laws and Customs of sundry other Nations as well ancient as modern C. 10 An Answer to some Objections pretended to be made against this kind of Oath from the Laws Civil and Canon C. 11 That not only such an Oath may be taken but also being by Magistrates duly commanded ought not to be refused is approved by Scriptures by practice of the Primitive Church and of late times together with a Reply unto certain Answers made unto some proofs here used C. 12 An answer unto such Objections as be pretended to be gathered from Divinity Divines and from the examples of godly men against ministring Oaths unto parties in matters of their own crimes C. 13 Four several opinions of the Innovators against the parties taking of an Oath in criminal causes with Answers also unto their Reasons and Objections C. 14 That a man being charged by authority to discover his knowledge touching some offence which his Christian brother is supposed to have done is bound to reveal it though it may breed trouble and punishment to his broaher and the Reasons to the contrary are answered and refuted C. 15 Their Arguments are answered that condemn the ministring and taking of an Oath as unlawfull because they have not distinct knowledge given unto them of every particular before the taking of it and the like course by Examples is upproved lawful and godly C. 16 That after the party hath answered upon his Oath it is neither unusual unlawful or ungodly to seek to convince him by Witness or other trial if he be suspected not to have delivered a plain and full truth and somewhat also in approbation of Canonical Purgation with answers to the Treatisors Objections against them CHAP. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A Summary relation of what Doctor Cosens in his Apology hath asserted and made good by Gods word the practice of the Primitive Christians the opinion of the Fathers the Laws Canon and Civil and the Laws of the Land allowing and warranting them The like practice at Common Law and at Geneva and other places pretending strict Reformation AS to the proceeding Ex officio or otherwise in the Ecclesiastical Courts according to Law and the due former practise nothing in that late Act is said against it and theresore implicitly at least it is allowed and approved Rati habitio mandato aequiparatur 't is a Rule of Law The Law in that case remains at it was before nothing need be said in justification thereof but only as touching the Oath Ex officio or other Oath not to be administred as there and touching Purgation Touching the Proviso's in that late Act that which forbids Ecclesiastical Judges to exercise any power c. as there and that other Proviso that forbids them to tender or administer unto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment I say touching the former Proviso he hath I conceive given full satisfaction in that his Apology in answering to the objections made in his time thereabout Therein also he clearly and fully justifies the proceedings of Ecclesiastical Courts in general and particular cases And to that other Proviso touching the Oath Ex officio or any other Oath and touching Purgation as in that Act I humbly conceive salvo meliore judicio he fully and clearly evinces it that the saw and practice thereof was just to tender and administer the Oath ex ofâ—icio or at the instance of a party for the finding out of Simony Adultery and other crimes and deeds of darkness 〈◊〉 mae probationis so 〈◊〉 evil may be removed from the â—…nd Alwayes provided that there was just cause for the Ecclesiastical Judge so to tender and administer that Oath that is that there was before such oath was so administred or tendered to any party due proof made of a common fame that the party was guilty of such crime touching which such oath was to be administred or at least there was as in some cases denunciatio Evangelica or canonica or insinuatio clamosa or other sufficient indicia praesumptionis or suspicionis to induce the Judge to tender that oath and so the practice alwayes was and if it ever was otherwise as I believe that will scarcely be proved it ought not to have been He sets down the due cautions that ought to be had when it is very probable that the person to whom that oath is tendered will forswear himself then to forbear it and that in capital crimes to the danger of loss of life or limb it is not the practice in any Courts to administer such oath for that very fear of Perjury it being too much to be feared that too too many would rather forswear themselves then endanger either life or limb though in some places of Scripture it appears that even in such cases such oaths have been administred The Father of lies could speak truth in such a case Skin for skin or rather as some learned in the Hebrew would have it Job â— 4. Skin after skin and all that a man hath will he give for his life There also he shews the weakness and inconcludency of that vulgar Saying Nemo tenetur seipsum prodere or accusare being indeed the trite and general objection That a man is not properly said to betray or accuse himself when as publick fame or other sufficient indicia presumptions or suspicions have accused him these are instead of the accusers and it seems dis-ingenuous at least in those especially that pretend to Learning and have or might have examined the Canons and Ecclesiastical Laws in that point to urge one piece of a sentence and leave out the rest where they found or might have found that sentence Nemo tenetur seipsum prodere or accusare they did also or might have found that which follows in that
like case of Appeal Amongst Nations of far elder times in most flourishing Commonweals oaths were taken by Plaintiffs and Defendants in all causes whether civilly or criminally moved Ex Polluce Sigâ—nius l 4. c. 4. deâ—…pub Athen. So among the Athenians besides a summe deposited to be forfeited by the failer Aeschines contra Timarâ—…um pag 7. Grae è. When Aeschines accused Timarcâ—us of a foul crime perpetrated upon him by one Misgolas Misgolas was to be put to his oath Plato lib. 11. de legibus Plato commends Rhadamanthus that strict Justicier feigned by the Poets as Aeacus and Minos also were to be a Judge in another world over Ghosts deceased for his justice I say he commends him for exacting an oath in every cause in controversie Arist Polit. lib. 3 10. Aristotle Plato's Scholer testifieth and commendeth the like course Herodotus in â—rato lib. 6. The history of Glancus an ancient Spartan that most just people of Greece evidences this there the oath of a thing left in Pawn was usually given Glaucus and his whole Family rooted out for denying such a Pawn left with him Dâ—ctis Cretens lib. 2. beth Trojani King Agamemnon solemnly and publickly took his oath that he had never polluted Hippodamia by Incontinency so was the custom in Greece in matters criminal Homer Iliad l. 19. v. 257. Homer mentioneth the same King purged himself also in another form but with an oath too that he had not violated Briseâ—s Pausanias Eliacis In the Olympick Games the Gamesters with their Parents and Brethren swore they had used no fraud nor deceit Cato de re Rust c. 144 145. In the old Roman Commonwealth private Housholders put an oath to thâ—ir Labourers that gathered Olives that they had not stollen nor imbezelled any c. Aâ—c sinalâ— sect 1. de juram calum c. inter solicitudines Xâ—philanus in Comodo Tacit. lib. 2. Anal. So the old Roman Law is upon presumptions he that refuseth to take the oath though the came be criminal is taken for convicted Victoriaâ—us General of Germany displaced his Legate or Lieutenant for refusing to take an oath that he was not bribed So Tacitus speaks of a solemne oath which the Senate caused to be taken by way of Purgation in high criminal matters When the Praetor one of the chief Magistrates in Rome had made choice of 450. Judges to decide causes Lex Servilia Glauciae apud Sigonium l. 2. c. 6. deâ—…udâ—… he was to swear he had chosen none of them dolo malo or for any sinister respect And much more might be instanced to this purpose to shew the justice of such proceeding CHAP. VIII That by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that Oath according to the Canon and Ecclesiastical Laws 2 H. 5. c 1. ORdinaries are authorized to enquire of the Foundation Estate and Government of Hospitals being not of the Kings Foundation c. and to make correction and reformation according to the Laws of holy Church as to them belongeth now by those Laws Enquiry touching crimes not capital is made by the Defendants oath as is notorious and before proved and this cannot but be penal to the parties visited when guilty 22 H. 8. c. 5. Executors and Administrators are to take the oath of the truth of the Inventory yet this may imply Perjury or discovery of a mans own fault 1 Eliz. c. 2. Ordinaries are to enquire of as heretofore hath been used by the Queens Majesties Ecclesiastical Laws about uniformity of Common prayer 5 Eliz c. 1. Ordinaries may give the Oath of Supremacy to a Clerk within his Jurisdiction 5 Eliz. c. 9. In this Act of Perjury the Laws Ecclesiastical have the powers reserved to proceed as before which was by oaths That allowance is made by Common Law to Courts Ecclesiastical to enquire and so consequently by such oaths appears by two precedents of Consultation set down in the Register Regist tit Consultation fol. 48. the first alloweth of an Inquisition made by the Dean of Yorks Official for defects in a Chancel c. Ibid. fol. The other besides a consultation conteins a commandment to the Ordinary to take full information by way of Inquisition and other means touching the value of Tithes Ibid. fol. 5â— b. An Ordinary proceeded against a Parishioner ex officio as for a crime for Tithes deteined by him Ibid. fol. 49. â— Ad correctionem animae the Ordinary proceeded against a Lay-man for Usury even at the instance of a party grieved so in several other cases as in the same Register mentioned fol. 43 50 51 54 55 57. Upon the cavils of some busie people against Oaths ministred in Courts Ecclesiastical and Temporal a Constitution Provincial was made against it Constitut Provinc de haercticis c. nullus Let no man saith that Constitution presume to dispute c. against Oaths which are made either in Ecclesiastical or Temporal Courts in cases accustomed and in usual manner c. By this appeareth the practice of such Oaths in both Courts A Treatise touching Constitut Proâ—…ine and Legatine c. 23. printed by Tho. Godfrey and Quintilius German in Henry the Eighths time who wrote against some Provincial Constitutions allowes of such Oaths to be taken Many more instances hereof may be given but it being apparent and notorious that such proceeding Ex officio and at the instance of the party and Purgation in manner as before was constantly practised in the Ecclesiastical Courts according to the Canons Constitutions and Laws Ecclesiastical before 25 H. 8. and by the aforesaid Statute of 25 H. 8. such Laws and practices have been confirmed not being contrariant to the Kings Prerogative or the Law of the Land And it appears that in such cases according as is practised in the Ecclesiastical Courts according to the Ecclesiastical Laws it is so far from being contrariant that it is most consonant and allowed and commanded by the Temporal Laws of the Land say it appearing by the Acts and Records of Ecclesiastical Courts that such proceedings were so constantly upon oath there needs no more be said for justification thereof but it may safely be concluded that before the making of that late Act the Common Laws and Statutes of this Realm allowed such Oaths to be tendered by Ecclesiastical Judges and therefore the oath of the party in some matter of crime that might be damageable and penal to him was both in practice and was allowed also to be practised in Courts Ecclesiastical by the Laws of this Land CHAP. IX That Oaths administred to parties touching matters damageable criminal and penal to themselves are urged and required by Temporal Courts and by the Laws of the Realm IN the Chancery when the proceeding is moved civiliter and not criminaliter not to any publick punishment but to the private Interest of the
distributive justice to have that rightly performed it must be granted that all due and good means may be used to attain that end Qui dat finem dat media ad finem i F. de injur Peccata nocentium expedit esse nota Now when crimes cease to be secret but are by fame or by such wayes as is aforesaid so far discovered if there be as very often there is not no other way to discover them that so the evil and the scandal may be taken away but by putting the party to his oath thereby to clear himself if further due proof thereof cannot be made or by refusal of the oath to be taken pro confesso then it follows the evil and scandal must still remain and all the sad effects thereof to Church and State may be expected to follow Be the fame of a crime Adultery or the like never so pregnant that Town and countrey even the Kingdom ring of it though an Adulterer and Adulteresse have cohabited together a long time yet if they were not taken or seen in flagranti crimine or seen in bed together which is a violent presumption equivalent to a proof and the parties deny the fact some make it disputable whether or no any manner of punishment the fact being neither proved nor confessed can be laid upon the parties for this great scandal to the Church Some hold that by the words of this late Act that an innocent party upon whom a fame is unjustly raised and the beginning of it cannot be found as often hath happened yet though he offer to purge himself the Ecclesiastical Judge is not to tender or administer the oath to him though this seems otherwise because the oath is forbidden but onely in such cases whereby the person to whom the same is tendered or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment But in this case of voluntary offer to take the oath that reason of censure or punishment ceaseth Reg. juris Volenti non fit injuria neque dolus Such course by way of oath to find out the sin being forbidden how great an encouragement it may prove to commit such sins is obvious to the easiest judgment It was extreme to make Adultery punishable by death though that extreme be to be avoided the contrary too must be shunned If it be lawful at common Law as in a Wager at Law and many other cases as before touched to tender and administer such oaths and in such causes as need it not so much as these causes ordinarily do wherein before that late Act it was administred in Ecclesiastical courts then why not in Ecclesiastical courts Except it be said that the same course shall be taken to forbid it also at common Law which I suppose is not intended since Jury men as Dr. Cosens as before in that his Apology affirms had an oath given them to present their own and their fellows faults Now such in Ecclesiastical proceedings The inequality of the punishment as to the difference of Sex Indeed the permission of punishment as to one Sex the Man and the punishment to the weaker Sex the Woman who therefore deserves more commiseration that inequality I say cannot at best but seem strange For the man will alwayes probably except either by Gods grace he will glorifie him by confessing his fault or else as before be taken in flagranti crimine or with such violent presumption as before escape punishment though never so guilty It is peccatum concatenatum there must be two to act it In that sin the man without the woman or the woman without the man signifie no more then the letter q without an u following it to make it into to a syllable As for the man his crime is transiens leaves no vestigia behind it to discover him not so oftentimes in the woman the infallible indiciū of her fault her crimen manens appearing to every eye though she is no more guilty thereof then the man whom if she rightly name or accuse yet that works nothing against him except to keep the Bastard child as the reputed father thereof wherein not a few light women probably name not the right father so her single testimony serves to punish either the right or wrong father but not to take away the scandal or evil caused by the man that offended Our English Nation hath been accounted very friendly and favourable to the weaker Sex and very many are the privileges and honoraries we give them more then in other Nations for which in the opinion of generous minds we are accounted more honourable then others insomuch as some have said If there were a bridge 'twixt Dover and Callis all the women in the Continent would come into our Island But by this we may seem to hazard that honour In Simony Usury and many other crimes of Ecclesiastical cognisance be the fame circumstances suspicions and all other inducements never so strong yet this Oath being not to be administred the offender scapes neither the evil nor scandal is removed Bishops by the Statute 1 Eliz. 1. are to give the Oaths of Allegeance and Supremacy ex officio to others or whether it be ex officio or ad instantiam partis the matter is all one 't is forbidden to give it to any person whereby he may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment The refusal of this oath is penal and perhaps the person was so accused to the Bishop or there was a common fame thereof or other sufficient inducement to enquire thereof if the party refuse to take this oath thus tendered to him then is he by the Law lyable to Censure and punishment for it and I conceive it is not thought fit that such a person be he a Recusant of what kind soever should plead this Statute that this Oath should not be tendered to them By the Law all Bishops and Ecclesiastical Judges when they give Institution into Benefices or give license to preach teach school serve Cures and in other cases are to give to the parties the Oath of Allegeance and Supremacy should these parties refuse to take these oaths it were penal to them When the Bishops make their Chancellors Commissaries Advocates Registers Proctors or the Deans and Chapters their Commissaries Officials or Auditores causarum or the Archdeacons their Officials or any other Ecclesiastical Officers whatsoever the same oaths are to be given them should these parties refuse to take these oaths it were penal to them So a greater part of the course of proceeding in Ecclesiastical Courts is taken away then perhaps many think of So in the Oath of Calumny and of Malice to be tendered in the proceedings in
Ecclesiastical Courts if the party refuse to take them 't is penal to him And in many other cases easie to be enumerated but this may suffice The guiltless and innocent have no benefit by taking away this oath especially that of Purgation nay admitting that which as above some affirm That though they offer to take the oath of Purgation the Ecclesiastical Judge is not to minister it in that case they are endamaged by it and cannot make their innocency appear in such a way and means as the Law did afford and to be restored to all intents and purposes to their good name and fame of which they were in a great part though unjustly bereaved and might have a good Action against any that after such Purgation defamed them The guilty hereby escapes punishment which he may in some sort lucri loco reponere if it may not be said of him as Virgil of the stinging Bee ammam in vulnere ponit Reg. juris The rule of Law is Nemo ex delicto consequitur beneficium The great Hypocrisie of those Innovators and Fanaticks in Queen Elizabeths King James's and in the late blessed King and Martyrs reign King Charles the First to go no further that then pressed the taking away of that Oath and some of them we have seen go much further of late who would be thought to be and so hold it forth that they are the greatest Zelots to have those sins punished that by that means would escape it yet cry like the Lapwing furthest from their nest they would not have the means left to find them out that so they might be punished and other use for their ends which we have sadly felt they made of it as is touched above Herein they somewhat resemble Julian the Apostate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 He would seem to be a hater of a long incompt Beard and entitles that Tract of his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 An hater of Beards and yet he sayes there of himself 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Longam istam barbam addidi c. ideo diseurrentes in ea pediculos perfero tanquam feras aliquas in sylva Many other inconveniences and hurts that too probably may be feared to arise from the prohibition of these oaths in such cases as before might upon further consideration be enumerated and though in the last place yet even that too of adding further discouragement to the professors of the Civil and Ecclesiastical Laws who have not had a few for a long time together may perhaps deserve to be thought upon It is too visible that there are not a few that would not have them enjoy so much of practice and power as that without which the State can scarce spare them that is in maritime causes touching Traffick and Commerce with Forreigners a point eminently considerable as to the benefit of this Nation For the Law it self surely all Scholers and ingenuous men of what Robe or Profession soever cannot but honour it for the Antiquity and in a sort Universality and Excellency of it and the great number of Nations and so many and noble and well-civilized exercise that were anciently and in great part and yet are governed by the rules thereof and the helps received from it even by our own Nation too many wayes demonstrable Before our Saviours time as is touched before in the time of Julius Caesar Cic. famil epist 0 an ancient Civil-Lawyer and often alledged in the Pandects remained at Samarobrina in this Island of Britain and after that the Oracle of that Law Forcatulus Aemilius Paulus Papiniamus professed the Law and kept his Tribunal seat of Praetorship in the City of York and no inconsiderable part of the Municipal Laws of our Nation have flowed from that Fountain and drawn many Rules and Maxims thence So that it may as that learned Civilian Sir Rob. Wiseman Knight Doctor of the Laws His Majesties Advocate general for the Kingdom of Engl. in that Treatise of his of the Excellency of the Civil Law be truly styled The Law of Laws and as it was said to that Roman orator highly commending Eloquence that he lifted her up to the skies that he also with her might be raised up thither so he in that learned and judicious Tract of his setting forth the due and just honour and Encomium of the Civil Laws deserves to be thereby perpetually honoured And for the professors of the Civil Law in this Nation their share of sufferings in these late tempestuous times was the earliest began first some years before the Loyal Clergy were destroyed For upon the passing that Act for the taking away the High Commission in the tail of it was that sting which as the then more powerful part interpreted it took away the coercive power from the Ecclesiastical Courts and so in a manner made them useless and precarious if not ridiculous and within a very few dayes after passed that Act for Poll-money where every Ecclesiastical Judge that had any Ecclesiastical Office of Judicature though some of those places were not worth 30 l. per annum nor 20 l. per annum and some less paid 15. l. a greater summe then some men paid of 10000 l. per annum and more in Land of Inheritance So sharp-sighted was that Act towards that then in a manner even ruined profession The reason of it was visible enough and no wayes dishonourable to that profession or professors who acted justly according to the known Laws of the Land had they done otherwise surely they had not wanted legal punishment as the times then were and the cry that was then unjustly raised against them when the furious flame of Civil war broke forth that wasted the Church all loyal Church-men and all that had dependance or relation to them in regard of any Offices or Places as most if not all Civilians had then As to the Civilians Sublatum fuit questionis subjectum their Offices and Places were quite taken away Indeed the most reverend Fathers the Lords Archbishops and Bishops with Deans Chapters Archdeacons and other Dignitaries in Cathedral and Collegiate Churches tasted of the same cup were A la mode then but not so soon as the Civilians root and branch destroyed but the Beneficed Rectors and Vicars that for their Loyalty were thrust out of their Benefices had a small pittance reserved them though when paid at all miserably shrunk and lessened almost to nothing that is as they called it the Fifths of their Livings But as to the reverend Prelates and Dignitaries and the Civilians there was nothing left under such pitiful Step-fathers were the then nick-named Fathers of their Country the prevailing party in that Long Parliament during the time of the long continued usurping Power even till His Sacred Majesties happy Restauration those causes and businesses which of right ought to have been agitated and dispatched by Civilians in their several Offices and places many of them as
canses of Defamation Matrimonial causes Tithes if not Legacies also and several other branches of Ecclesiastical Jurisdiction were all along dispatched at Common Law or Chancery contrary to all Law and equity Probate of Wills and granting of Letters of Administration with all the connexes and incidents thereunto belonging and from thence arising were by Commission from that usurping Power committed to a few persons of their own gang at London so that the Subjects from all parts of the Kingdom were to prove the Wills of the dead and take Administration of Intestates Goods passe their Accompts and act the rest concerning them there before them at London The Executors and Administrators must either come up thither personally to them to take their oaths or else have Commissions down into their Countries to do it and the charges to the Subject for such Probate of Wills Letters of Administration and the rest whether they went up themselves to London to dispatch them or more especially if they sent up by others thither to have them done as most commonly they did and not scare one in forty did otherwise and it was the cheapest way probably for them so to do in regard of the charges to send up by others that also had other business of their own there Yet I say by these means and the great Fees taken the charges for proving every Will taking Letters of Administration and the rest came ordinarily to about six times sometimes much more as much as was taken and due before these troublesom irregular times by the Ecclesiastical Judges and Officers to whom of right they appertained that is the Fees and charges usually came to 50 s. or 3 l. or 4 l. or 5 l. and sometimes to 6 l. or more Had such a Grievance and so general throughout the Kingdom reigned in the time of Kingship when faithful and peaceable men acted according to the known Laws of the Land surely the fall of Nilus to the Cadupes would not have made such a noise as our factious Stentors would have then bellowed out And too much of the grievance still remains such Wills Inventories Bonds so Administration with the dependancies thereupon remaining still at London whether the Subject when they have occasion to see or use any of them or sue for any thing concerning them must either personally repair or send for them or sue there which is well hoped will by this happy Parliament be remedied and a course taken that they may be transmitted into every County whence they came for the Subjects ease and that they there may sue upon occasion for any Legacy or other matter concerning them Should it be demanded at whose charge this should be done the dictate of Reason I humbly conceive answers it Qui commodum habet idem onus habere debet And thus for no small number of years our Places our Livelyhoods were unjustly taken from us onely for our Loyalty whilest others that did it gloried in their shame took our bread out of our mouths and did eat whilest we fasted and well nigh starved and yet such is the unsatiablenesse and unreasonablenesse of some of our causelesse persecutors that they could well be content we should still continue in the same oppressed and miserable condition And when His Majesty was happily restored for which all thanks praise and glory be ever rendred to the God of miracles and mercy the Civilians as they were as is before touched the first and earliest sufferers so were the last not a small time after the most reverend Bishops and especially after the rest of the Loyal Clergy were restored that were re-admitted to their places and Offices and when that was done still for a considerable time they were but precarious and of little use or value as before till the doubt touching coercive power was by Parliament taken away which was not till the later end of Summer 1661. and then with the Proviso against the Oath Ex officio and Purgation which not a little diminishes these Offices besides upon reasons known the forbearance of the full execution of such Offices as yet so far as by Law they might execute them is considerable Some Civilians who in contemplation of their natural duty and of their Oaths of Allegeance and Supremacy served His Majesty in his wars against his then rebellious Subjects thereby lost all their Fortunes both real and personal that their enemies could find and certainly never were more sedulous and rigid scrutators or more rapacious Harpies that would not let scarce any thing passe their clutches Non fuit Autolyci tam piceata manus And such suffering Civilians both so in their Livelyhoods their quotidianum and their persons and liberties very often humbly hoped when a time of re-settlement should come that they should have been looked upon as well as others of the same profession that sate still underwent none of these dangers or hazards nor suffered perhaps any thing or but little in their Estates or otherwise especially in comparison with the others or as well as others that had some competency by reason of practice under the usurped Powers as to take and execute Offices under them of great benefit and I had almost said that way if not otherwise also immediately acted against His Majesty and his Authority contrary to their natural duty and Oaths of Allegeance and Supremacy To plead before the usurping powers even after the end of the war it was not at least for a long time permitted to those Civilians of the Kings party especially those that had served him in his wars here For my own part though I could never satisfie my Conscience so far as to plead before any of the usurped powers not so far to acknowledge their power though some years before His Majesties happy restauration I was both here and in Ireland invited and desired to do it yet I would not do it nor ever did that way or any other give any acknowledgment of their power or touch any of their Pitch more then by a forced acquiescence and sitting quiet and still when I was constrained so to do Yet I say I am far from censuring any of these worthy and learned persons of either Robe that did either agere or defendere before that usurping power by way of pleading I would not be mis-understood as to be thought so much as to think amisse of the noble Profession or Professors at Common Law both which I love and honour and do very well know and have heard many of them suitable to their Births Breedings and loyal and generous Minds commiserate the oppression of the Profession and Professors of the Civil Law and wish that the proceedings in the Ecclesiastical Courts by the Oath Ex officio and Purgation might continue as it was before that last Act that took it away even for the justice of it as they conceive as also lest it might seem at leastwise in some mens judgments to savour of a kind of partiality
memory King Henry the eighth because that many inconveniences had chanced in this Realm by breaking and dissolving good and lawful marriages yea whereupon also sometime issue and children had followed under the colour and pretence of a former contract made with another the which contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the marriage which they liked not and to be coupled with another there was an Act made that all and every such marriages as within the Church of England should be contrcted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had betwéen the parties so married should be by authority of the said Parliament déemed judged and taken to be lawful good just and indissoluble notwithstanding any precontract or precontracts of Matrimony not consummate with bodily knowledge which either of the persons so married or both had made with any other person or persons before the time of contracting that marriage which is solemnized or consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly appear Sithence the time of the which Act although the same was godly meant the unrulinesse of men hath ungodly abused the same and divers inconveniences intolerable in manner to Christian ears and eyes followed thereupon women and men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the contract of Matrimony they might have whom they more favoured and destred they could be contented by lightnesse of their nature to overturn all that they had done afore and not afraid in manner even from the very Church door and Matriage feast the man to take another spouse and the espouse to take another husband more for bodily lust and carnal knowledge then for surety of faith and truth or having God in their good remembrance contemning many times also the commandment of the Ecclesiastical Iudge forbidding the parties having made the contract to attempt or do any thing in prejudice of the same Be it therefore enacted by the Kings Highnesse the Lords Spiritual and Temporal and the Commons in this present Parliament assembled that as concerning Precontracts the said former Statute shall from the first day of May next comming cease be repealed and of no force or effect and be reduced to the estate and order of the Kings Ecclesiastical Laws of this Realm which immediately before the making of the said Estatute in this case were used in this Realm so that from the said first day of May when any cause or contract of marriage is pretended to have béen made it shall be lawful to the Kings Ecclesiastical Iudge of that place to hear and examine the said cause and having the said contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding solemnization cohabitation consummation and tractation as it becometh man and wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the Kings Ecclesiastical Iudge by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never béen made any clause article or sentence in the said Statute to the contrary in any wise notwithstanding Provided alwayes and be it enacted that this Act do not extend to disannul dissolve or break any marriage that hath or shall be solemnizated and consummated before the said first day of May next ensuing by title or colour of any Precontract but that they be and be déemed of like force and effect to all intents constructions and purposes as if this Act had never béen had ne made any thing in this present Act notwithstanding Provided also that this Act do not extend to make good any of the other causes so the dissolution or disannulling of Matrimony which he in the said Act spoken of and disannulled But that in all other causes and other things there mentioned the said former Act of the two and thirtieth year of the late King of famous memory do stand and remain in his full strength and power any thing in this Act notwithstanding Stat. 1 Eliz. 1. By these the inconveniency appeareth of taking away or altering an ancient long-settled Law practised long in all Christian Countries as this was which had it not been good probably the inconveniency and hurt of it had appeared in so long a time and the Law for the Oath Ex officio and Purgation is of like antiquity and practice in all Christian Countries without inconvenience or hurt thereby arising as yet that I ever could hear of therefore such Laws ought to be deeply weighed and considered of before they be repealed or altered And now that I am speaking of repealing and altering old Laws and making new I thought fit to close this Tract with some Notes of mine drawn up almost all of them in the time of the usurped Government and some after His Majesties restauration and communicated to the sight of some of Quality touching the repealing or altering of some old Laws and making new Some are already past and effected as that for the Lords the Bishops sitting again in the Lords House in Parliament and other things These I offer with all humility to be considered of if it shall by those in Authority be thought fit otherwise to be as unsaid Protesting that I retract as before any thing which is here mentioned that shall appear contrary to Gods Word His Majesties Prerogative or the Laws of the Land or the just policy and government of any of His Majesties Dominions Touching Parliaments Parliament proceedings AS a Parliament well constituted and acting regularly conduces much to the happinesse of King and Subject so any exorbitancy or deviation therein of which surely all unbiassed men cannot but confesse we have had too much sad experience in the Long Parliament works the contrary corruptio optimi pessima In the time of the Long Parliament some as it were idoliz'd it even almost to an opinion even of Infallibility of which they have made too much advantage to the misery of King and People Some advised then that that great Wheel that great Court should have had its sphere of activity it s known certain bounds publickly declared and not have been like a great River prodigiously overflowing all its banks and bounds Such a Parliament acting regularly is' t not probable the Members thereof would not so much have thirsted to lengthen much lesse to perpetuate it They were called up to consult may not he that calls his Counsellor forbear consulting him when he pleases and dismisse him Ordinance of Parliament The extent of an Ordinance of Parliament having by some been tentor'd then even almost to Infinity might it not have been precisely circumscribed and the exact definition of an Ordinance given Privileges of Parliament As
proceedings touching them which in the late Usurpation were out of all places brought to London and no Record thereof in the County or Diocese where the deceased dyed so that the Subject is put to great trouble and charge sending to London when he hath occasion to use any of them and may be forced to sue at London when he would recover his right thereupon That all such Wills Inventories Bonds Accompts and all other proceedings concerning the same or true copies thereof to be made valid and authentick by Act of Parliament be transmitted at the charge of the Register at that time into the Registry of the Bishop of that Diocese where the party deceased dyed or had his principal mansion or dwelling house at the time of his death or rather in regard of the largenesse of some Bishops Dioceses including many Archdeaconries and many Counties they should be so transmitted into the respective Registries of every Archdeacon or Commissary of the said Archdeaconry and that every person concerned may sue for their right thereupon before the Bishop of the Diocese or his Chancellor or such Commissary or Archdeacon or his Official During the late troubles the Episcopal and Archidiaconal power having been de facto abolished or suppressed the Subjects have been forced to their great charge and trouble to prove all Wills and take Administrations c. at London before Commissioners or pretended Judges there for proving of Wills and granting of Administrations c. Degrees of Marriage That the Act of 32 H. 8. about the prohibited degrees of Marriage be by Act of Parliament explained Traytors heads That the late Traytors Heads and Quarters of the Murtherers of our late Soveraign of blessed memory and the others that are set upon wooden stakes should be set upon Iron pikes or stakes as Piercy and Catesby's Heads were upon the Parliament House Touching the suppressing of all Books and Writings published against the Regal Rights or the Right of the Subject About the suppression of seditious books SOme have advised if it be thought sit that a most choice and able Committee be appointed to enquire after all Books and Writings whatsoever which have spoke against the Regal Right or the Right of the Subject that they may as many as can be got either be purged or burnt and declared against by Authority and not remain as apt fuel for a new flame but be buried as far as can be in perpetual oblivion And perhaps in the first place as most pestilent those Tracts that have been writ about that ridiculous contradiction in adjecto of the two Houses coordination with the King the Monarch when as before is specified the King is the Head the Lords Spiritual and Temporal and the Commons the three Estates by several Acts of Parliament specified Lippis tonsoribus notum yet urged for designs mischievous abominably as we have felt Spensers Treason As also that trayterous distinction of the Spensers 'twixt the Kings Person and Office by two Acts of Parliament declared Treason yet in these late times maintained by too many Goodwins book justifying the murther of the King Goodwins book for the justification of the murther of the late King and many other of that kind Mr. Bucks book of Richard 3. Mr. Bucks book of Richard the third wherein he seems to impugne the right of the King from the daughter of King Edward the fourth wife to King Henry the seventh too much leaning to if not affirming Richard the thirds right by that monstrous Act of Parliament that illegitimates Edward the fourths issue In Sir Edward Cooks book entituled The third part of the Sir Edw. Cooks Writings Institutes of the Law of England concerning High Treasen and other Pleas of the Crown 1658. Printed at London by M. Flesher for W. Lee and D. Pakeman § Le Roy pag. 7. he puts it down there for Law upon the Statute of 25 E. 3. c. 2. De proditionibus That if Treason be committed against a King de facto and non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon granted by a King de jure that is not also de facto is void Strange would have been the consequence of this if Cromwell had been made King as some desired and a loyal man should have killed him in order to the restitution of the true King de jure our dread Soveraign King Charles the second Or should a loyal man for the same end have killed him though he had but de facto non de jure the title of Protector how far would that have extended by the words in the same sect may be considered where he sayes that Statute of E. 3. is to be understood of a King regnant and as follows there and as he sayes most truly a Queen regnant is within these words Nostre Seigneur le Roy for she hath the Office of a King So perhaps it deserves to be examined whether some of note and power in the time of Cromwells Usurpation did not affirm that Cromwell was within these words Nostre Seigneur le Roy. In regard Sir Edward Cooks Writings are by many held in high repute and some have not stuck to style him the Oracle of the Law therefore his Writings require to be more strictly looked into and that if any errors be found therein they may be detected and expunged as being more dangerous then in other mens Writings not of so great repute Corruptio optimi est pessima Illegal and seditious speeches Also it was advised if it shall be thought fit that such Speeches as have been publickly made by any Judges or noted Lawyers upon the Bench or in any publick Assemblies against the Regal or Subjects Right or the Law of Nations which may give just offence to our Neighbours may be taken notice of and publickly declared against Such us that when that Act of 25 E. 3. was alledged to justifie Cromwells Usurpation and that Seigneur le Roy in that Statute included Cromwell the usurping Protector And that speech of a great Lawyer at the tryal of the Portugal Ambassadors brother when it was alledged that he was by the Law of Nations to be sent back cum postulatu to his Master the King of Portugal to be by him punished for his offence committed here and that that Commission for trying him here without the consent of the Portugal Ambassador was the first Commission that ever was granted here to try any Ambassador or his servant without the Ambassadors consent Even the Bishop of Ross Ambassador from Mary Queen of Scotland though she was de facto deposed or forced to renounce the Crown there when he had committed a great offence yet was onely dismiss'd and not further questioned But to all this and much more that Lawyer replied What have we to do with the Law of Nations if it be contrary to the Law of England One