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
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
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
sentence viz. Sed proditus per famam tenetur seipsum ostendere innocentiam suam purgare The accuser of his brethren cited Scripture to our Saviour sayes he Mat. 4 6. He shall give his Angels charge concerning thee and in their hands they shall bear thee up c. leaving out that in the Text that follows after these words Psal 91.11 He shall give his Angels charge concerning thee that is to keep thee in all thy wayes which alters the case That note or comment upon the Law or if they will needs call it a Rule or Maxime it matters not Nemo tenetur seipsum prodere vel accusare sive propriam turpitudinem revelare is to be understood in crimes simply secret and which are no wayes disclosed or come to light But when such secret sins are by some of those wayes that open a way to enquiry of a person supposed criminous come abroad and so in some sort are manifested then those former rules cease and that of St. Chrysostom comes in Homil. 31. ad Hebraeos Non tibi dico ut te prodas in publicum neque apud alium accuses but upon such disclosing then Proditus tenetur seipsum ostendere innocentiam suam purgare This is for the avoiding of scandal and that the party may be reformed Therefore doth Aquinas himself reason thus Thom. 2.2 Cum quis saith he secundum ordinem juris à judice interrogatur non ipse se prodit sed ab alio proditur dum ei necessitas respondends imponitur per eum cui obedire tenetur As for tendering the Oath to the party where there is an accuser that is not done upon the crime till the fame be proved or sufficient presumptions circumstances indicia or suspitions or semiplena probatio the oath of one sufficient witness at least to induce the judge to give that oath though penal in some sort to the party This practice he proves consonant to Gods Word to the practice of the primitive Christian and the opinion of the holy Doctors and Fathers of the Church as also consonant to the practice of Geneva and other at least seemingly strictly reformed Churches and to the practice of all Christian Nations and other Nations not Christian guided onely by right reason and the Law of Nature as also that by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that oath the Ecclesiastical Laws and Canons being full and clear in that point Then he shews how the proceeding at Common Law in this Land is the same not onely in some criminal but civil causes also For private debts 'twixt private persons penal to them as in Wagers of Law sometimes for a greater sometimes a lesser debt 'twixt two private parties with the parties oath that is accused and his Compurgators too even as in Purgation Canonical in the Ecclesiastical Courts together with other Purgation or Decisory Oaths at Common Law Proceedings in Chancery with the several species and kinds of cases wherein such Oaths at Common Law are tendered being very numerous and are by him cap. 6. in the third part of his Apology and other parts thereof reckoned up and fully set forth And if this may be done in civil causes ought it not much rather be allowed the Church in criminal which works onely medicinaliter to reformation the Common-wealth works ad poenam the Church not so this to the amendment of the party to bring him to a voluntary submission and to take away the offence and scandal which he hath justly given to his Neighbour and to lead a new life that perhaps to the loss of liberty corporal punishment or livelyhood at least besides the infamy of being convicted of doing dishonestly and unworthily CHAP. V. That it is consonant to Gods Word to give such an Oath Ex officio or otherwise Rom. 13. EVery soul is to be subject to the Higher Powers This is to be understood in all commands not contrary to Gods Word in such comes in the Apostles rule Acts 5.29 It is better to obey God then man That the giving such an oath is not contrary to Gods word An oath duly imposed by the Magistrate necessitates the Subject to take it as appears by the commandment of God himself Thou shalt fear the Lord thy God and serve him and shalt swear by his name The like is given by the Lord in the Prophet Jeremy Jer. 4.25 O Israel thou shalt swear The Lord liveth in truth in judgment and righteousness Joshua gave charge to all the Magistrates of Israel that Josh 13.2,7 They shall not make mention of the Gods of other Nations nor shall cause to swear by them Saul did not onely charge the people with an oath but 1 Sam. 14. made them vow with a curse not to eat any food that day till night therefore one of them reported to Jonathan Sauls son That his father had made the people to swear Some would cavil at this as but an Adjuration and would without reason difference that from an Oath but in that Chapter 1 Sam. 14. it is four several times called an Oath The wise King Salomon imposed an oath upon Shime◠in a cause capital to him 2 Kings 41. Did not I make thee saith he swear by the Lord c. So King Saul 1 Sam. 24. urged David to swear unto him For a private offence only between Neighbours King Salomon testifieth that a necessary oath of Purgation may be required by the Complainant 1 Kings 8. When a man shall trespass against his neighbour and he lay upon him an Oath to cause him to swear c. King Josias 2 Chron. 34. made a covenant and vow and caused all that were found in Jerusalem and Benjamin to stand to it Nehemiah Neh. 5.12 caused the Priests to swear c. It is assigned for a special mark of a Godly man Num 30.3 Psal 15.4 To swear to his neighbour and not to disappoint him though it be to his own hinderance Abraham said thus to his servant I will make thee swear by the Lord God of the Heavens c. Gen. 14.3 this in a private cause much more a Magistrate in a cause wherein the Commonwealth or Church of God hath Interest to have it sincerely dealt in Gen. 25.33 Jacob moved Esau to the sale of his birthright and took an Oath for confirmation of it Deut. 19.17 A man supposed to have born false witness against another is thereof brought in question and re-examined if it be objected it was not upon oath by consequence of reason it must be upon oath when what he has said before upon oath is re-examined and this in a case very penal to him The oath of Adjuration is very frequent in Scripture Prov. 29.14 about not declaring cursing which he heard By the History * Jud 17 1,2 of Micah as we are †1 Cor. 10.3 bound
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
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
also the just privileges of Parliament explicitely have been made known that the Subject might not then have sworn or promised or protested to have maintained and observed them and yet could not possibly know what they were That due care should have been taken that they might have been observed and kept inviolable on all sides neither diminished nor scrued too high and both the Members of the Houses and the People to have had their just rights entire and for this purpose that that Protestation then put in by the The Bishops Protestation Lords Spiritual the Bishops with their Petition to have the force removed that kept them from the Lords House should have been well consider'd on and the right of Protestation in Parliament declared and maintained being a great privilege And whether after a just Protestation unjustly rejected and the Members kept out of the House by force that so protested and petitioned whether the other Members could then have proceeded further in the House In the late Kings time in the beginning of his Reign when the Earl of Arundel was imprisoned in the Tower about his sons marriage of the Duke of Lenox's daughter being of the Bloud Royal without the Kings consent the Lords would do nothing in their House till he was restored in regard he was committed onely for a misdemeanour and neither for Treason Felony nor breach of peace in which cases they then confessed a Member of Parliament in Parliament time might be kept prisoner The King none of the three Estates And the Lords Spiritual being one of the three Estates as 1 Eliz. 3. and elsewhere and the King being none of the three Estates the contrary whereof hath been falsly held but the Head and the Lords Spiritual and Temporal and the Commons being but Members and further the Lords Spiritual being one of the greatest Estates of the Realm as 8 Eliz. 1. Some doubted whether one of the Estates can destroy another and whether that come not near the contradicting that Axiom that the Parliament cannot be Felo de se whether that concerns not the Lords Temporal and Commons as well as the Lords Spiritual As for His late Majesties assent 't is known how far the prevalent power in both Houses then carried that and other things too to the misery of the Kingdom Who knows not in what condition the King then was forced to flye by reason of the tumults from Westminster to remoter places And as touching that Act of Parliament for their expulsion out of the Lords House it is not to be forgotten that when it was first brought into the Lords House it was rejected and ought not to have been brought in again that Session yet afterwards it was contrary to the order and course of Parliament brought in again when a great part of the Lords were absent if not upon just fears frighted out of the House and it being scarce safe for the King to deny them any thing in that dangerous condition he was then in As also that such Concessions or Acts as then contrary to the Kings free will were wrested from the King were not to be accounted legal or good or valid whereof several instances may be given heretofore of such and amongst the rest one 15 E. 3. the King then yielded to and granted certain Articles pretended at least to have the form of an Act or Statute of Parliament expresly contrary to the Laws of the Realm and his own Prerogative to which he had assented to eschew the dangers which by denying the same were like to follow in the same Parliament it was repealed in these very words following It seemed good to the said Earls Barons and other wise men that since the Statute did not proceed of our good will the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void c. And perhaps it deserves to be thought of how far in this case that Act of 42 E. 3. c. 1. reaches where it is set down that the great Charter should be kept in all points and if any Statute be made to the contrary it shall be holden for none And one especial Law in that Charter is for the preservation of the rights and liberties of the Church whereof this of the Lords Spiritual their liberty of sitting and voting in the Lords House is a known special liberty and privilege and most ancient Proceedings of the House of Commons If we look back to the Long Parliament was it not fit that that House of Commons should have been justly regulated to act no further or otherwise then according to their just power and the Commission and Summons by which they were called which Commission or Writ of Summons is the foundation of all power in Parliaments as it is well expressed by the Lords and Commons assembled at Oxford Declaration of the Treaty p. 15. What fearful exorbitances have been that way the more sad it is to remember the more care ought to be taken to prevent it for the future The House of Commons in former times being desired by the Lords Honse to consult with them de arduis regni negotiis to which the Lords are called and the House of Commons remembring their call and commission ad consentiendū hiis quae tunc ibidem c. as in their Writ of Summons humbly referred it back to the Lords as matters too high for them And it may seem against the honour and gravity of Parliaments or either House as also to the grievance of the Subject for both or either House or the Committees of either of them as in the Long Parliament to trouble themselves with matters of very small or inferiour nature much below them and in cases where the Law hath sufficiently provided remedy and is still in force to be executed by the proper Judges Were it in making new Laws thereabouts that ought to be so but I mean in making orders about the execution of such Laws which properly belong to the ordinary Judges thereof and are usnally executed by them especially touching inferiour matters it look'd then in that Long Parliament as though they would have swallowed up all other courts and made a kind of Justitium in them during the time of their Session such as medling with the appointing of Churchwardens and such like petty matters The late Long Parliament deviated much especially the pretended House of Commons then to omit as being too notoriously deplorable the Iliads of miseries this poor Nation hath thereby undergone besides that horrid one of the murther of our late King of ever blessed memory King Charles the first acted by a pretended House of Commons Was not that then too frequently practised worthy then of reformation that is the judiciary power being in the Lords House and the Commons House having power onely over their own Members in some cases and not having power so
and made void and one Statute made clearly and plainly to comprehend all that is necessary upon that subject Touching Ecclesiastical Persons Courts and Causes The Clergies Proctors in the House of Commons SOme have wished if it were thought fit that now the Lords Spiritual the Bishops being restored to their right in the Lords House that the Clergy should have their Proctors to sit in the House of Commons if they desired it representing the body of the Clergy as they used to do till about Henry the sixths time or not long before as it was then used since which time it hath been disused Some have affirmed that a Clergy-man of competent temporal estate having in King James's time been chosen Burgesse for a Corporation was not suffered to sit there nor a Clergy-man to say Prayers there Nor will some yield they can vote to chuse a Parliament-man either in County or Borough so little of representation have they and yet when in Convocation they give the King Subsidies their grant must be confirmed by Act of Parliament Anciently such care was taken that Bishops should be present in Parliament that in their absence their Chancellors were summoned to sit there About augmentation of Vicaridges Also if it be thought fit that whereas before the dissolution of Monasteries the Bishops had power to augment poor Vicaridges out of the Tithes of Impropriations so they are now commonly called though the true name is Appropriations the Tithes having been appropriated to some Monastery or Religious house or other before the dissolution and after that falling into Lay-mens hands who held them improperly living by the Altar and doing nothing there got the Nick-name of Impropriators and Impropriations which now holds good such is the tyranny of Custom in this and many other cases Or if there were no Vicaridge endowed the Bishops might endow one nay and go so far as to leave to the Appropriator which then was that Religious house to which it was appropriated who then thought themselves as worthy to be kindly used as a man would think our Lay-Impropriators Impropriators can do now not much more then a 50. part of the Tithes or thereabout Against Mensals It seems hard that the Lay-Impropriator should have a matter of 200. or 300 l. per annum or more and the poor Vicar a matter of 20. Marks or 20. Pounds or thereabout and hardest in Mensals that is as it was usual when a Religious house could procure from the Patron the right of Presentation to some Living near their Monastery whither one of their Monastery might repair to officiate and return home to his D'orter at night then they often procured these Livings from the Popes to be annexed and appropriated to their House ad supportandam mensam thereupon called Mensals the Cure to be so discharged by one of their House and no Vicaridge to be endowed and all the Tithes and profits to come to the Monastery And thus it stood at their dissolution and such small care was taken that so they came into Lay-mens hands who allow them something or nothing as they please some inconsiderable small Tithes or some pety small pension of 5. or 6 l. per annum or sometimes somthing more or lesse Near Market Towns and great Towns commonly were one or more Monasteries scituared and the Abbots and Priors ordinarily got all or the most of the Livings in such Towns for Mensals as before so that wee see them at this day such pittyful small things as they are and tenuitatem beneficiorum necessariò sequitur ignorantia clericorum and in such Market Towns to supply the Vicar or Curate Lecturers are taken in and they must live of the benevolence of the people which is usually or at least amongst many of them more or lesse as the Lecturers preaching pleases them so he must humour their fancies or fast And there must be a Lecture-day commonly on the Market-day too that the Countrey people coming thither may drink in his Doctrine which oftentimes has been very strange and what the conseouence of this has been we have sadly felt of late years being not the least cause of our miseries God grant it may be prevented for the future It is alledged that the power of the Bishops in use and practice before the dissolution of Monasteries for augmentation and endowment of Vicaridges is taken away these Impropriations being turned into Lay-fees Yet I humbly conceive salvo meliore judicio that the King had no more transferred upon him then what the Abbots and Religious persous had Nemo dat quod non habet Nemo plus juris in alium transferre potest quam ipse habuit Reg. juris Nor was more transferred to the possessors or their Ancestors then what the King had If so then what was legally done in such cases by the Bishops before the dissolution why may it not now be done too and yet some moderate remedy should be found for the purchasers especially those that have so long enjoyed them and the Bishops Deans and Chapters and others namely the Bishop of Lincoln who had very many great Mannors taken from his Bishoprick which are at this day in Lay-mens hands and a competency such as it is made up to him almost altogether out of small Impropriations He and others should be duly considered and not detrimented hereby Touching the bounds of Jurisdiction Ecclesiastical and Civil And also if it shall be thought fit that the bounds of Jurisdiction Ecclesiastical and Temporal may be clearly set down and fixed to take away all matter of contention that for want of it may arise so that probably as few prohibitions as may be need be sued forth But as they now are two Sisters under one and the same Crown so they may live peaceably and friendly for ever The Ordinaries power about distribution of Portions c. And also if it be thought fitting that whereas the Ordinary according to Law and long practice hath distributed portions to the widow and children upon Intestates goods upon the Administrators giving up their Accompts to him for which they enter Bond upon their taking out of Letters of Administration which distribution and bonds and bonds taken for performance of Wills are by some excepted against that that and all other just powers of the Ordinary may by Act be ratified Against concurrence of Jurisdiction Peculiars c. And also if it shall be thought fitting that for the quiet and ease of the Countrey and in regard sometimes of the inconvenience and disorder in the execution of Jurisdiction Ecclesiastical no peculiar Jurisdiction nor concurrency of Jurisdiction be suffered the parties that have Interest therein to be otherwise satisfied The instances of the inconveniences of such peculiar and concurrent Jurisdiction may be given but I forbear lest I might seem partial All Wills c. proved at London from remote Counties to be transmitted into the several Counties That all Wills Inventories Bonds for Administrations and Accompts and other