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
and pretending to I know not what heavenly Revelations and counterfeiting an extraordinary calling insinuated himself into the acquaintance of severall Divines that with inflamed zeal labour'd to bring in the Presbyteriall Discipline of the Church of Geneva into the Church of England amongst whom was one Wigginton a Minister and if ever any an haire-brain'd one and a contemâ—er of Magistrates Then he goes on and relates Hacketts and his Complices most horrid and ridiculous madness such as had not such a worthy Author and others related it we might now doubt of the truth of it as the next Age will probably do of our Modern Fanaticks late pranks there he relates his fearful blasphemous speeches as he expired and was turn'd off the Gallowes upon whom that pious and Learned Author gives this grave censure Ita hostis humani gencris dementat quos sanctitatem simulare ad solrietatem nolle sapere deprehendit Thus the enemy of Mankinde infatuates those whom he perceives to be counterfeitors of holiness and will not be wise with sobriety And then after a line or two upon Arthington and Coppinger two of Hacketts Complices he goes on thus Nec hii soli sed etiam alii qui receptam in Ecclesia Anglicana Doctrinam Episcoporum vocationem damnando Praesules contumeliosè calumniando hactenus frustra impugnarant Nunc pertractis in eorum partes nonullis juris Anglici peritis in corum Jurisdictionem delegatam à Regina in Ecclesiasticis causis authoritatem ut prorsus injustam linguas calamos strinxerunt declamando ubique etiam libris publicatis homines contra Regni leges in Foris Ecclesiasticis indignè opprimi Reginam ejusmodi authoritatem ex jure non posse delegare nec alios exercere delegatam Fora illa non posse a reo Jusjurandum Ex Officio exigere cum Nemo seipsum accusare teneatur Jusjurandum illud homines ad sui condemnationem cum ignominiosa confusione vel in spontaneum perjurium cum animarum exitio praecipitare Praeterea de aliis quam matrimonialibus causis non debere cognoscere ex hujusmodi Veteri Rescripto Mandamus Vice-Comiti Comitatuum nostrorum S. N. c. quod non permittat quod aliqui in Balliva sua in aliquibus locis conveniant ad aliquas Recognitiones per sacramenta sua faciendas nisi in causis Matrimonialibus Testamentariis Contra Juris Ecclesiastici Professores Regiam in Ecclesiasticis authoritatem propugnarunt utique Parlamentariâ Authoritate in Regina investitam Hanc oppugnare nihil aliud esse quam in Majestatem irruere Sacro Sanctae Praerogativae violato obsequii juramento insultare Fora Ecclesiastica de aliis quam Matrimonialibus Testamentariis posse cognoscere ex statuto Circumspecte agatis Articulis Cleri sub Edvardo Primo docuerunt Rescriptum sive legem illam prolatam suspectam esse quia temporis est incerti variae Lectionis Alibi enim legi Ad recognitiones vel sacramenta praestanda Recognitionem item facere non significare testimonium perhibere vel respondere in jure sed debitum agnoscere fateri vel placita de Catalogis vel debitis tenere Juramentum ex officio in foris illis ut in aliis ex omni memoria fuisse exactum ad simoniam adulterium alia tenebrarum opera rimanda praesertim cum Insinuatio ut loquuntur fuerit clamosa Et quamvis nemo teneatur seipsum prodere tamen per famam proditum teneri ostendere utrum possit suam innocentiam defendere seipsum purgare quandoquidem poenitentia imposita non sit poena sed medicina ad peccatores curandos alios à peccato deterrendos scandalum tollendum juxta illud in Sacris Literis Pro anima tua ne confundaris dicere verum Est enim confusio adducens peccatum confusio adducens gloriam gratiam Sed quid de hiis immoror quum dissertationes Richardi Cosini Legum Doctoris Johannis Morrisii Lanceloti Andrewes eruditae hac de re utrinque praestent Regina haud ignara suam authoritatem per Episcoporum latera in hoc negotio peti adversantium impetus tacite infregit Ecclesiasticam Jurisdictionem illaesam conservavit That is Not onely these speaking of Hackett and his Complices but others also who had hitherto though in vain impugned the received Discipline of the Church of England by condemning the calling of Bishops and contumeliously slandering the Praelates having now drawn into their party some Common-Lawyers sharpned both their Tongues and Pens against their Jurisdiction and the Authority which the Queen delegated in Ecclesiasticall Causes as altogether unjust declaiming every where even in Books published that men were unworthily oppressed in the Ecclesiasticall Courts contrary to the Lawes of the Kingdom That the Queen could not by Law delegate such kinde of Authority nor others to whom it was delegated could exercise it That these Courts could not require the Oath ex officio from the defendent party when as no man is bound to accuse himself That Oath precipitates men to condemn themselves with ignominious confusion or into wilful perjury to the destruction of their Souls Besides they ought not to hold cognizance of any other causes then Matrimoniall and Testamentary according to that old Mandate or Rescript We command our Sheriff of our Counties of S. N. c. that they suffer not any in their Balive to come together in any places to make any Recognizances upon their Oaths but in Matrimoniall and Testamentary causes On the other side the Professors of the Ecclesiasticall Lawes maintain'd the Royall Authority in Causes Ecclesiasticall as vested in the Queen by Authority of Parliament To oppose this was nothing else then to offer violence to Royall Majesty and violating the Oath of obedience to insult over the Sacred Prerogative Royall The Ecclesiasticall Courts may hold cognizance of other Causes then Matrimoniall and Testamentary by the Statute of Circumspecte agatis and Articuli Cleri in the time of Edward the first as they made it appeare That Rescript or Law which they produc'd was suspected because it was incertain for the time and is variously read Elsewhere I have read it To perform Recognisances and Oaths and to make recognition or recognizance doth not signifie to give testimony or to answer in Law but to acknowledge and confesse a debt or to hold plea of Inventaries or Debts That the Oath ex officio hath time out of mind been given in these Courts as in others to sift out Simonie Adultery and other works of darkness especially when the Insinuation as they call it becomes loude And though no man is bound to betray himself yet being betrayed by fame he is bound to shew himself whether he can defend his innocence and purge himself seeing the penance enjoyned is not a punishment but a medicine to cure sinners and to deter others from sinning and to take away scandall according to that in
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
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
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
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
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
thought fitting that Juries of life and death as also in other Actions both criminal and civil should be considered of and better Juries impanelled then often are and the Sheriff and Under-Sheriff and other inferiour Officers power in impannelling such Juries be looked after 40 s. per annum as is touched above was in the beginning of that Law or custom of tryal by Juries a good considerable estate and so the persons probably more considerable and knowing They anciently used to be twelve Knights so sayes Sir Edward Coke in his Comment upon Littletons Tenures citing Mr. Lambert Many instances might be given of the strange Verdicts given by some such Juries out of their ignorance or wilfulness or both who oftentimes expresly deny to follow the Judges directions but go quite contrary but I spare to instance them in reverence to the Law under which I was born and live and the practice thereof both which especially in most parts thereof are very excellent And we see what Pamphlets have been published by John Lilburn if not by others too affirming the power of Juries not as is commonly held to be onely in matter of fact but in matter of Law too and how they have controuled learned Judges in their Verdicts and obstinately carried it against them and how the meaning of that Axiom Ex facto jus oritur hath been extremely rack'd The meaning of Legalis homo to qualisie him to be of a Jury is not nor formerly was meant to be onely a man of 40 s. per annum but to be at least in some good measure in legibus peritus as some are of opinion and so as it were a kind of assistant to the Judge New 〈…〉 And also if thought fitting that new Laws should be made upon emergencies and accidents when they happen and are notorious and publickly known be the crimes never so heynous and horrid Till they have happened it may be thought fit not to make a prohibitory Law against them for the reason afore mentioned Neâ—dum prohibent jubent 〈…〉 As namely of making Eunuches of men or women That case may be remembred of the Horse-gelder in Nottinghamshire that spayed a young woman and being a casus omissus the Judge could find it no more then a misdemeanour It hath been anciently forbidden by the Imperial Laws and the punishment is capital Cod. de Eunuchis lib. 4. tit 42. l. 1. The stealing of a Winding-sheet out of a Grave 〈…〉 That abominable basenesse of a woman and a Mastiff-dog not far from Temple-bar London not many years since if the Law be not plain enough in that case that it may be amended Stealing or men c. The stealing of men or women girles or boyes by these extraordinary thieves called Spirits or others to be carried into remote Plantations where probably their Parents shall never hear of them Shall we provide good Laws against the stealing of our Cattel and our Goods and not of our Children Such kind of Plagiaries have been more taken notice of in other parts and severely punished St. Paul 1 Tim. 1.10 amongst those against whom the Laws are made reckons up the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Men-stealers Against delays in Comâ—… And also if thought fitting that a select Committee should be appointed to consider of the dilatory proceedings in all Laws both Ecclesiastical and Temporal delaying of justice being almost as bitter as injustice and the promise is as well not to delay justice as to do justice Many instances might be given of delayes in justice and perhaps none more then in actions upon the Writ of Formedon especially where there are many Copartners which I have heard some Common Lawyers complain of Fees in all Courts And also that such a select Committee should consider of Fees in all Courts and to fix a settled rule for them that onely such may be taken as cannot justly be grievous to the Subject and yet may be sufficient for the Officers that receive them due consideration being had of their respective qualities pains charges and all incidents and circumstances concerning them and of the great rates of all commodities raised exceeding highly since the time that such Fees were settled especially in Ecclesiastical Courts 21 H. 8. this hath alwayes been a consideration for the raising of Fees Against the 〈◊〉 examining of witnesses upon oath in the Defendant defence And also if it shall be thought fitting that the practice of the Laws touching Non-admission of witnesses to be sworn upon oath in defence of the party prosecuted against by the King should be amended And whether it seem not strange to some that A. B. being indicted at London for killing C. D. at Barwick upon Tweed in such a place there on such a day about such time of the day and the accused party endeavouring by the negative pregnant to defend himself would prove that that very day he was perhaps at St. Michaels Mount in Cornwal about the same time of the day and so could not be then at Barwick and he produces sufficient witnesses upon this yet they must not be examined upon oath and why should the Jury rather believe witnesses without oath then sworn witnesses especially when they hear no just exceptions against the sworn witnesses which haply the Defendant cannot at least upon an instant give perhaps having not heard of them till the very time of their production against him at his tryal and the cause being heard so summarily as is usual and so exceeding small time of defence given that he cannot possibly enquire after them to resute their testimony by just exceptions against them The usual answer is Witnesses must not be examined upon oath against the King as though it concerned not the King as much to save a guiltless man as to hang a guilty It was accounted a good speech of that Roman Emperor that said Mallem unum servare civem quam decem occidere hostes Against the examination of witnesses in the hearing of one another And also if it be thought fitting that witnesses should not be examined as usually they are at our common tryals both in civil and criminal causes openly in the hearing of one another when it is to be feared that it hath happened sometimes that the craftiest witnesse has been put on to speak first and he hath thereby given aim dangerously to the rest Should any object that in such summary proceedings it cannot well be otherwise May it not be answered that 't is to be feared there may be more haste then good speed and they might be examined privately and apart not in the hearing of one another even in such summary causes almost in as short time and according to the course of the Civil Law that examines so apart their testimonies when all taken might be published and if need be even in their own presence to confirm them viva voce Daniels hearing of the cause 'twixt the two Elders and Suzanna seems to be summary and yet he
not lawful to question and without an Oath 't is to little purpose theresore God commands that way of Adjuration or giving an Oath * 1 Kings 2â— So the King adjured Micheas †Mat. 26.93 so the High Priest our Saviour and both of them answered But should any question Adjuration even a clear oath was lawfully given even to the actor as Exod. 22.8 1 Kings 8 3. and therefore more then permitted to the Magistrate For surely it were hard if every private man might require an oath of the questioned and not the Magistrate should it be lawful in the case of a Pawn and not of a Kingdom An oath is an end of controversie saith St. Paul Heb. 6.16 then an oath to be taken for that end In a case Matrimonial which is meerly Ecclesiastical Interrogatories were administred with oath as in a cause of Incontinency Num. 5. and the proceedings being by Enquiry without any accuser at all And this which is to be noted in the case in Esdras Esdras 1.8,9 they are no wayes forced to it but desire to take their oath first and to be examined after then which there is no cause more suitable then to the proceedings in Ecclesiastical Courts before the passing of the late Act and against which the Innovators heretofore used to take exceptions In some of these above-mentioned instances we see how oaths were administred even in capital causes much more may they be where there is not that danger nay no danger of losse of Goods Liberty or any other losse but onely for a medicine to the soul for reformation of manners and taking away scandal and offence given They were questioned too we see upon small suspicions signs presumptions or any other causes of question nay nothing at all as to the person questioned upon whom no true colour of suspicion lay something like our Coroners proceedings in some cases but onely a fact was committed that was apparent whereof it was possible that he was not guilty as in the case of a person found slain then much more ought it to be upon great suspicions presumptions or publick fame thereof proved This being thus by Gods Word in the next place we may look into the practice and opinion of the primitive Christians hereupon CHAP. VI. That the Opinion and Practice of the Primitive Christians and the Fathers of the Church was to administer such Oath Ex officio and upon Accusation and for Purgation Canonical with the practice at Geneva IT is well said by an ancient and learned * Cromatius in 5 Mat. Facit canon 36. concil Tolet. quart Writer Dominus inter juramentum loquelam nostram nullam vult esse differentiam And Aquinas saith †Thom. 2.2 qu. 69. art 3. If he which is brought into question and interrogated by the Judge without his oath shall answer untruly that therein he sinneth deadly The old Christians in the primitive Church were far from such shifts of answering dangerous questions propounded to them by Heathen Magistrates or from answering untruths to them Tertullian is herein very plentiful especially in his book called Apologeticon Tertul. in Apol. c. 1. A Christian saith he if he be indicted or denounced to the Magistrate he rejoyceth in it if he be accused he propoundeth no defence when he is interrogated he most willingly confesseth and when he is condemned he giveth them or God thanks And much more hath Tertullian to this purpose St. Augustine Aug. serm 28. de verbo Apost cap. 6. doth plainly establish and allow of Oaths taken concerning a mans open offences being indeed such also in their own nature If perhaps saith he thine Oath be urged meaning a Decisory oath be exacted of thee by a private person say not I will not swear for it cometh of evil which thou doest but yet of his evil that exacteth it of thee insomuch as thou hast no other means but thine oath to purge and clear thy self of the matter in handling Aug. ibid. c. 10. In another place he speaks and allows of oaths taken in way of purgation of one suspected for theft Aug. ep 137. and in another place he sayes and approves of the same practice at Millain this was in a civil cause criminally moved and for theft a crime though not simply capital by the Civil Laws In another place Aug. in qu. Lev. In denouncing others saith he speaking of Denunciation of faults to the Magistrate this moderation is alwayes to be used by us that we relate it unto such which may rather help than hurt him in case the party shall swear falsly either by correcting him or by deprecation to God for him so that he will by confessing his fault apply this remedy unto himself Chrys hom 16. ad pop Antioc St. Chrysostom alloweth of Decisory Oaths or Wagers of Law and testifieth that such necessary oaths were in those times imposed to exact mens confessions and whether they had stollen some certain thing or not This he allowes touching meer crimes in their own nature and that upon the instance of a Plaintiff particularly interested but in his goods and chattels This kind of oath was not onely allowed in the old Church but commanded to be put in use as lawful and consonant unto Gods Word against persons convented and had in suspicion even in one Church which the most and hottest oppugners of this oath do reckon to be best yea and almost the onely Reformation that may rightly be so called For in the Discipline of France concluded of in the National Synod there 1559 1561 1563 1565. it was thus declared The Ecclesiastical Senate or Consistory act 12. The faithful may be constrained by the Consistory to tell the truth so far forth as it derogateth nothing from the duthority of the Magistrate They may be constreined say they but there is no compulsion but either Civil which they will not arrogate to themselves as torture or racking imprisoning or fining c. or else by the parties oath which upon pain of Perjury if he once swear or of conviction if he will not doth as it were constrein a man to say truth And that an Oath is meant by the Canon of the French Church we are taught both by the History of Camperell a French Minister at Geneva as also by that of those who danced in Widow Balthazar 's house there Interepist Calvâ—n in folio pag. 421 422. Camperell was appointed by the Consistory of Elders there to be examined upon his Oath upon certain Interrogatories whereof also two concerned what he had in his very purpose and intention of mind Calvin Farello pag. 64. epist in folio The Dancers because at first they denyed it were put to their corporal oaths to declare the whole truth of that merriment And all dancing there is held as an offence and grievous crime as appears by the Ordinances of Geneva and by the very last frame of Discipline
concluded 1571. by the French Churches For Purgation Canonical as it was used in the Ecclesiastical Courts of this Kingdom in a word 't is the same in these Courts in a criminal cause as at Common Law a Wager of Law is in a civil cause differs no more then thus this is touching out Lands or Goods that touching our Good name and Credit It is so far from being condemned by good and godly Bishops in ancient times that by whole Councils it hath been prescribed Concil Tribur canon 21. Let a Lay-man saith one Council if need be purge himself by his Oath and let a Priest by the consecration of the holy Sacrament be interrogated And another Council thus Ivo lib. 5. ex concil Agath Let a Priest if he can purge himself of the crime with seven of his Order and a Deacon with three So was it decreed by a third Council Ivo ibid. ex concil Herdeâ— If a Priest or Minister be infamed amongst his charge and it cannot be proved before the Bishop by witness let him be suspended untill he perform due satisfaction lest the faithful people be scandalized But as our Elders have taught then is the satisfaction due and orderly when according to the Canons or as the Bishops shall judge fit he joyneth unto him seven Compurgators and swears by the holy Gospel laid afore him that he hath not committed the crime laid unto him When he is thus purged then let him again freely execute his office And in another Council we find Concil Worm Purgation prescribed for Theft and also for Adultery and according to the prescriptions of these Canons and many others that might be alledged examples of sundry ancient Bishops in the Church that have themselves made their own Purgation for avoiding and removing scandal and offence 12 qu. 4. c. Mandastis Sixtus the third an ancient Bishop of Rome but upon the accusation of one Bassus did willingly make his Purgation upon his oath in a Council Ivo Carn l. 5. And so did Leo another ancient Bishop of the same See purge himself with twelve Bishops Gregory the Great enjoyned unto * Greg. ep 23. ad Iustin Presb. Leo †Id. ep 8. l. 2. Memius and * Id. ep 8. l. 7. ep 79. Maximus three Bishops to clear and purge themselves of several crimes by their oaths whereof the last was for Simony Innocentius also caused the Bishop of Trent to purge himself likewise of the like crime of Simony And what be the Oaths touching Goods stollen or imbezelled which were left with a man upon trust appointed in Exodus Exod. 22.7,8 and those in Salomons Prayer at the Dedication of the Temple â— Kings 8.31 other than oaths of Purgation of a crime imposed by the party having an interest Likewise the oaths mentioned in Leviticus Lev. 6.2 concerning goods denyed that are pretended to have been left in deposito or goods gotten by robbery or violent oppression or casually found after they were lost yet by the finder denyed are they not for purgation and clearing of the party from the crimes imputed and in some respect also decisory of the whole controversie unlesse sound proofs touching the true guiltinesse of the party may afterwards be found out and used Num. 5 14. The Oath of Jealousie taken with a further solemnity of Purgation and imposed by the Priest a publick Magistrate in that behalf is an oath not onely of Enquiry but of Purgation to the woman denounced for suspicion of Adultery by her husband Duet 21.8 Lastly the oath imposed by Gods Law upon the Elders of the City scituated next unto the corps of a man which is found secretly murdered is a plain and most direct oath of Purgation even in a crime in his own nature evil and capital to the offendors For justifying of the Oath Ex officio and at the instance of a party and of Purgation with Compurgators all in a manner as above the authority of the Civil and Canon Laws is manifoldly extant but that even the oppugners doubt not of nor deny but reject them as in their conceit unreasonable and ungodly and therefore 't is needlesse to name them being so easie to be seen and obvious to every common eye The received use of them amongst most Civil Nations make it to be little lesse than Jus gentium and therefore by moderate and grave men not to be sleighted 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 TO prove this in Christian Commonwealths the Canons of the Church and the practice thereof in all such sorreign Christian Nations evince it then which nothing is more manifest To cite the particulars at leastwise to recite them would be voluminous scattered all along the Civil and Canon Law Dr. Cosens in his third part of that Apology chap. 9. quotes many of them as they were used in the Roman Empire before Constantines time as well as after Consâ—…d Hungar. deâ—…uram purgaâ—… By the customs of Hungary there be many and long Constitutions made for the taking such Oath and of the manner of it Mâ—rian inâ—… qualitâ—… qu. 84. Casonus in Pract. fol. 8â— num 3. It is testified also to be the usual practice of all the Dominions in Italy that the party convented in Temporal Courts whether by way of Accusation or at the Prosecution of another or by way of Enquiry Ex officio judicis must swear to declare the truth in all those things that shall be asked of him even of the crime it self This is much stricter than in the Laws of England Ecclesiastical or Civil Ordenances du France liv 2. tom 2. tit 14. du droit deresâ—… have passage c. pag. 895. For Merchandizes to be carried out of France the Merchant must under his hand particularize the commodities with the weight and measure thereof that there be no deceitful or forbidden Merchandize there and upon the truth thereof he is to swear Ordonance de France premter an 1539. artic 38. In another Ordinance there the Plaintiffs swear to the truth of what is in their Bills and the Defendants answer upon oath to confesse those things which be within their knowledge Marcus deciscor 674. In other matters criminal it is reported to be the custom of France for the party Defendant onely to make faith when they are objected and he is thereupon to answer whether he hath committed them or not but he is not to take a corporal oath betwixt which two before God there is no difference Grand Constumier entre les constumes du Normandy But by the custom of Normandy the Appealed of murther must upon his oath holding his Adversary by the hand solemnly swear whether he hath committed such fact or no and Stamford affirmeth the Law of England to be the same in
tit exâ—minat num 17 A suspected Jury to have received a letter from the Defenfendant were all examined upon their oaths * M. 35 H. 6.11 A Sheriff examined supposed to have made a false return †Brooke tit Ley-gager num 77. They have a custom in London allowed good by the Common Law to cause the Plaintiff to swear to the truth of his Declaration which if he do then the Defendant is condemned if the Plaintiff refuse he is barred 19 H. 6.43 The like Decisory Oath at Common Law which is peremptory to the Plaintiff and so is the Wager of Law ex parte defendentis 44 E. 3.41 In an Action of Detinue for a Chest sealed with certain Gold Silver c. the Defendant tender'd his Law that is his Oath Quod non detinet and the opinion of the Court was he should have it Dr. Cosens chap. 3. in the third part of his Apology writes thus The grand Jury as I take it have their oath given to enquire and present their own their fellows and others faults And Part 3. chap. 14. he sayes that at Assizes and Sessions Grand Juries are urged by oath to enquire and present Treasons Murthers and other Felonies breach of the Peace violation of sundry Laws and Statutes common Nusances c. Now if one of the Grand Jury being to be sworn would deny to take the Oath except he might have some certain offences usually given in charge left out and foreprised severally out of his Oath lest otherwise he should thereby be driven to accuse himself Or if one supposed most able to give evidence to the Coroners Inquest upon a murther committed should desire to be spared from telling his utmost knowledge thereof upon his oath lest thereby he be driven to accuse himself would the Judges spare them and not rather repute them to be guilty of these crimes for which they refuse to take oath and discover their knowledge And why not then other men should not upon crimes nothing so penal who refuse to take the oath to answer them be judged by any man to do it upon good ground and conscience 10 H. 6.7 If a Tithingman refuse to make Presentment the Steward of the court may amerce him 19 H 7. c. 14. Chief Constables and Bayliffs were to give evidences upon their oaths touching unlawful Retainers within the precinct of their Offices and upon concealment were to be punished And many more such Therefore hereupon may it not be concluded thus That whatsoever the Ecclesiastical Laws do allow and require being not contrary nor repugnant to the Prerogative Royal nor to the Laws Statutes and customs of this Realm that may be lawfully practised by Judges Ecclesiastical But this oath is such by reason that sundry Temporal courts by Law hold the like course and do not prohibite it in Courts Ecclesiastical so that not being so much as divers courses they cannot be contrariant or repugnant therefore these oaths were lawfully practised in courts Ecclesiastical or thus That which is justice and equity in one court cannot be unjust unequal or cruel in another court that is thereunto no lesse authorized than the first But such be these Oaths as appeareth by the practice of the aforementioned Temporal courts therefore they are lawful and equal also in Ecclesiastical courts CHAP. X. The inconvenience 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 favours to Civilians DOctor Cosens hath touched upon some of such inconveniences in general not much in particular sparsìm in that his Apology but not in any one distinct chapter Some of such as I have thought of I shall set down That Evil should be removed is often inculcated in holy Writ and that right and justice should be done in all causes as well criminal as civil publick and private all Laws sacred and prophane command this tending to the well-being even the being of all Kingdoms Commonwealths and Governments whatsoever as the contrary to the desolation and destruction thereof and of all commerce and humane society That in respect of the whole Church and Commonwealth punishments are most needful the sacred Writ shews it and gives many examples where for the sins of a few whole Armies and Societies have been punished Josh 7. Achans stealing of the accursed garment c. was a cause of the overthrow of Israel in battel 1 Sam. 4. So for the sin of Eli and his sons many thousands of the Israelites were slain by the Philistines 1 Kings 1.2 Salomon giving charge to kill Joab sayes Smite him that thou mayest take away the bloud which Joab shed causless from me and the house of my Father And for Jonas his disobedience the whole Ship was in danger to have perished The Heathen could say Justicia est Reipublicae basis Aristot Rhetor. Tâ—…odor c. 14. Aristotle could say that punishment is a remedy to be used against faults and Cassiodor Remedium est contra peccatum accelerata correctio For all crimes and offences are but as so many Maladies and distempers in the body of the Commonwealth which if suffered to grow without the curb of Law will quickly like a Canker disperse either to the destruction or eminent danger of both So that the necessity of punishment and forcing justice to be done both in civil and criminal causes by the very ends unto which it is referred clearly appears a Aâ—g inc◠〈◊〉 tract 7. Charitas non est sed languor ubi mali mores digna poena non castigantur b Idem ep 50 ad Bonifac. c. erroâ— dist 83. Error cui non resistitur approbatur c Cassiod l 3. u. c. epist 14. Malum cum perseveret augetur d Câ—cum Tanto de ceasu tudine Tanto sunt graviora peccata quanto diutiùs animam detinent illigatam Tully sayes e Cicer. pro Mâ—… Impunitatis spes magna peccandi illecebra f Câ—…d Aâ—d dist 45. Quae est ista misericordia quae bonitas um parcere omnes in discrimen adducere The very Light of Nature did teach even Heathen men thus g F. add Aquild Iâ—a vulnerat Interest Reipublicae delicta puniriâ—… and h H. de fide pur l. 7. sect final Poenas ob malesicia solvi magna ratio suadet Now if upon such weighty reasons it be most needful that Justice be duly administred and crimes punished for in criminal matters the greatest care is to be had though no neglect neither to be in commutative and
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
that committed it By all which it is evident that such proceeding by oath may be and is not unlawful This as before is by some said to be Dr. Davenants late Lord Bishop of Sarisbury and others say it was the late Lord Bishop of Winchesters that most learned and pious Bishop Dr. Lancelot Andrews Whose soever it was it seems it was to give satisfaction to the Lords of the Council touching such proceedings Ex officio and upon oath and 't is to be believed it gave them satisfaction the Law so long after continuing the same and no wayes altered The Theological Determination of Dr. Lancelot Andrews afterwards Lord Bishop of Winchester had in the publick Divinity-Schools in Cambridge in the Moneth of July 1591. upon this Question following Rendred into English for the use of the meer English Reader Whether by Gods Law it be lawful for the Magistrate to require an Oath of the Party that is the party guilty or Defendant and in what case and how far it is lawful TOuching the questioning of parties guilty or Defendants by the Religion of an Oath as also of such parties taking such Oath or lawfully declining it of late hath a Question arose Whether by Gods Law it be lawful for the Magistrate to require an oath of the party that is the party guilty or defendant and in what case and how far it is lawful This question to prevent any confusion upon your memory or my own I will divide into five branches and indeed in this short two dayes space I have not bethought my self of a more distinct method 1. Whether it be lawful to exact or require an oath 2. Whether it be lawful for the Magistrate to do it 3. Whether from the guilty or defendant party 4. Whether it be lawful in every cause or not in capital causes but such as receive a milder punishment 5. How far this is lawful and in what cases Of which questions the first three have nothing of question in them if we be sound in Divinity therefore I shall in few words dispatch them And first of all it is a sacred right that such an oath may be lawfully required In which matter I think it is very behooveful as Christ did in the case of Divorcement first of all to enquire what every thing was in the beginning in the revolution of time many things are changed the beginning is the most certain rule Therefore I aske where and when the first mention of an oath is made in Scriptures I finde Gea 24. Abraham forcing his servant to take an oath in these words and with this ceremony Put thy hand under my Thigh and I will make thee swear that thou shalt take a wife for my son of my Kindred So the first oath mentioned in Scripture is here expressed and as it is the most ancient and first so it is the most frequent and onely mention almost of such a thing This very term to Swear you will scarce any where find it in the Old Testament but either under the word Hiphil that is the Imperative commanding conjugation in respect of him that gives the oath or under the word Niphal that is the passive suffering conjugation in respect of him that takes the oath And under the same rule are the Greeks amongst whom Orcos is the name of the oath which almost solely the holy Ghost acknowledges in the New Testament In that word is a kind of straitning necessity and as they say an exigengy no less then there is in the word Orcos for from the same word comes both that is of straitning Thereupon comes that common Proverb War and Oaths are voluntary evils and that they may be good they ought to be pressed and expressed as St. Augustine of Oaths sayes wittily either by the Authority of him that gives the oath or at leastwise by the hardness of his heart that believes nor So that it is a sin either to swear or to make war except it be at least in some manner exacted and upon some and no light cause Therefore that it may be required or rather that it ought to be the very force of Nature the very force of the term it self evinceth it But whether from the Magistrate this is the second branch Yes surely from the Magistrate So the Divines of old Not onely every body but every soul is to be subject to the Powers Rom. 13.1 Therefore the Powers have power to commit the body to custody by imprisoning it lest it escape And so likewise the soul to commit that to custody by laying an oath upon it lest it should have any subterfuge by which name God himself hath most fitly called an Oath the Bond or prison of the soul Num. 30.13 by which the soul may as it were be tyed up and being so tyed up may be bound to answer appositely and readily But yet it comes nearer If it be lawful for the Master to force his servant to take an oath as Gen. 24.3 Abraham did if a father to his son as Jacob to Joseph Gen. 47.29 if a brother to a brother as the same Jacob to Esan Gen. 25.33 By how much better right is it lawful for the Magistrate to do it to his Subject whose command is more excellent then any other command I adde also about the right settling in marriage of a son if that be lawful as Abraham to his servant of chusing a fitting place of burial as to Joseph of passing away the right to Birth-right as Esau and in private causes I adde also of the least concernment if compared with the publick Then surely by better right may the Magistrate do it in the common cause of the Commonwealth whose Interest is greater then any other Interest And that is provided for by Gods Law Exod. 12.8 in express terms in the case of a Pawn saith God let them come before the Magistrate In which place the Magistrates are named by the name of God himself and not by any name but by that very name which is taken from the force of an oath as though he should say Let them come before the Oath-givers or those who when they give the Law in Gods stead in his Judgment and in his Name may require his Oath to be taken That is Gods Deputies Psal 82.6 in Gods judgment 2 Chro. 19.8 the Oath of God Eccles. 8.2 therefore to the Magistrate It is lawful to the Magistrate I say as well Ecclesiastical as Civil Before him that is the Ecclesiastical Judge by Law the Woman is commanded to purge her self in a case of suspicion of breach of Wedlock bond Num. 5.19 Before him that is the Temporal Judge by Law the man is commanded to purge himself in a cause of suspicion of breach of Social promise or Contract Exod. 22.8 The practice whereof we see and the practice of the Saints is the Interpreter of the Commandments of the Ecclesiastical Judge in Ezra who required an oath in a Matrimonial cause Ezra
10.5 Of the Temporal Judge in Nehemiah who forced an Oath in a cause of Usury Neh. 5.12 Neither hath the pious and religious Magistrate onely right to do this but the Heathen Magistrate too and that to Gods people Zedckiah gave his Oath of Allegeance to Nebuchadnezzar 2 Chron. 36.9 though forced he gave it and rightly too if we believe Ezekiel and afterwards by a sacrilegious boldness he attempted to break it he scaped not unpunished for it Ezek. 17.13 Lastly I adde that this was not lawful to do to their own people onely but also to guests and strangers living within thrir Territories either for trafficking or any other cause In which regard Joseph now become Vice-Roy of Aegypt imposes an Oath upon his Brethren in a case of Treason suspected though both by Law and by Nature they were Canaanites Gen. 43.3 therefore hence it now appears that it is lawful to impose an Oath and that it is lawful also to the Magistrate But whether is it lawful to do it to the party that is the party guilty or defendant the third thing I propounded Nor can that be called into question Exod. 22.8 He to whom the Pawn was concredited is the party guilty or defendant Num. 5.19 The woman suspected by the jealous husband to have wronged his bed is also the party guilty or defendant but to each of them is this oath to be given nor is it lawful for them to decline it In a few words I will summe it up Whether one deceitfully keeps his neighbours goods or perfidiously deteins his friends goods or restores not to the owner his found goods when he requires them Levit. 6.3 or as it seems to me in any other crime for it is mentioned indefinitely 1 Kings 8.31 in whatsoever he shall sin it is lawful for the Plaintiff or Agent to impose an oath upon the party that is the guilty or defendant or to lay an oath upon him as it is in the Hebrew phrase nor is it lawful for the guilty or defendant party to refuse it whether it be imposed by the Agent or Plaintiff or by the Magistrate Indeed I cannot deny but we are fallen into such times that it may be expedient to impose the oath upon the party Agent or Plaintiff and not onely upon the Defendant for it may happen that they may both prevaricate that is the party Agent or Plaintiff by calumniating and the party guilty or defendant by Tergiversation But if we would take the Law from Heaven from the holy Writ to the party guilty or defendant 't is more necessary to be given Examples are thereof Scarce will you find in the Law an oath laid upon the Agent or Plaintiff but very often may you find it upon the party guilty or defendant Moses renders the reason of it The actor who for the most part is the party endamaged he is inflamed with anger he is wholly wrapt up in the Leaven of anger and revenge struck through with the sting of malevolence will be rash with his mouth which the Wiseman forbids to be in an oath Eccl. 5.1 therefore the matter of an Oath herein is altogether unfit But the party guilty or defendant whom the Law alwayes supposes to be guilty of the crime charged till the contrary appear is much fitter In him there is less prejudice less of affections besides perhaps of fear which is as it were the heart of an oath Therefore it is lawful to lay it upon the party guilty or defendant and fitting too to do so Now I come to the fourth branch In what cause this is fitting which is more intricate and hath more question in it And I shall not seek any where else for the division of these causes but in our Law that is the Law of Divines there in the holy Law some are called wrongs or prevarications Exod. 22.9 some capital causes Deut. 21.21 whereof some of those being heinous are punished with loss of life life either by being deprived of natural life or civil that is Banishment or as the holy Writ speaks rooting out Ezra 7.26 To which are allied causes of bloud such as are Deut. 25.12 Lopping off a limb and there in the second Verse inflicting of stripes but these others were not so great and were partly punished by pecuniary Mulcts partly by imprisonment Esth 7.26 Was there any place for such an oath to be given in such crimes as were punished by loss of life truly I do not perswade to that First the practice in Scripture contraries it for I see when Achans life was in question Joshua dealt thus Tell me my son swear not to me So likewise Saul in the like case concerning Jonathan Tell me Jonathan do not swear to me a willing not express confession a simple interrogation not under the bond of an oath But which is the hinge of the question I see the Prophet Jeremy himself interrogated by the King himself I will aske thee a thing hide nothing from me The Prophet covenants with him If I declare it unto thee wilt thou not surely put me to death nor did Jeremy thus covenant without the dictate of the holy Ghost as if in such causes God had given an immunity of answering Jer. 38.14 And indeed Reason perswades the same for indeed so ought Inquisition as far as it may be to be made by the Magistrate that the manifest loss of souls may be avoided When as from the mouth of the greatest Liar that most true sentence proceeded Skin after skin and all that a man hath will he give for his life Job 2.4 it is to be feared that that whatsoever or all that a man hath will comprehend as well the conscience of an oath as the fear of God and what else soever comes under the notion of Religion as men are and as they are disposed Wherefore though I define nothing I know not how in such causes as these in regard of the present danger of Perjury yet I think 't is best to forbear the imposing of an Oath And the Laws which we use at least according to leave or permission judge the same But in other cases being of lesser offense and so punished more easily I think otherwise Except perhaps we take that sentence out of the Comick Poet and place it in Divinity An Oath is for the keeping of a thing not for the losing of it For by that general Law it is provided Lev. 5.4 If a soul swear pronouncing with his lips to do evil or to do good whatsoever it is that a man shall pronounce with an oath and it be hid from him when he knoweth of it then he shall be guilty in one of these And whereas this cannot be understood of the Evil of guilt or of a crime as we speak in the Schools lest an Oath which is a bond of piety should become a bond of Iniquity it follows it must hold in an evil of punishment in which kind it is neither lawful to
Agent and Defendant which as we cannot endure here in the Schools much lesse ought it to be suffered in Judicature whose proceeding thoroughout ought to be solemn and sacred and the very Justice of Justice as it is Deut. 16.20 This subject matter to be judged or state of the cause or if any would rather call it so the bounder of the controversie is to be sought out either in the behalf of the guilty or defendant party or of the Agent Not of the Agent oftentimes he cannot because oftentimes there is none such when one is called into question upon presumption or else upon fame and when there is he is almost rapt and transposed or is driven on either out of hatred or some other oblique desire that he himself is unstated so that from him in vain is the state of the cause required Wherefore to the party guilty or defendant is this favour granted or rather this honor is given who is alwayes a person certain and whom the Law accounts not convicted for guiltlesse that he should either by affirming or denying fix to himself the state of the cause yea that by his answer onely the state of the whole controversie may be setled and not onely the state of the controversie but except he be convinced of falshood by the testimony of two witnesses beyond all exception an end too of the controversie But that he may not if he be loose and free depart from that state so by him sixed and afterwards not stand to that state but shall recoil and go back from his purpose a bond a bond of the soul as God gave it the name he is to enter into that is a religious affirmation by which his soul is as it were bound up with a chain to speak out the truth holily and sincerely that is the truth not that absolutely but as he knows it or believes it nor must go contrary to his conscience which we call lying but even as he were acting with God himself so must he act with the Magistrate that is Gods Lieutenant that represents him and requires right That Israel and the people of God proceeded thus that is swore to make true answer that practice of Michaeas of which I made mention above and that which is much apter that other in that questioning of Elias 1 Kings 18.10 evince it where when they had expresly answered He is not with us the King not herewith contented forced them to an oath that they had not found him as if no Law could compell a man to rest on the answer of a man unsworn Wherefore as it is altogether fit that the party guilty or defendant should be bound up lest he might evade or change the state of the cause and thereupon one state and then another follows and indeed so there will be no place of consistency or settling the cause So he ought to be bound up not with his bare naked answer or as others would have it with a pecuniary Mulct these are not bonds of the soul which is the Interpreter of Truth but with that alone true and onely bond of the soul that is by an Oath And thus at length the whole hinge of the cause being fixed as it ought to be let us proceed to those Confirmations as St. Paul calls them Neither is it fitting as I hear some complain that the guilty or defendant party should be so bound up and the Agent altogether free Nor is our Law so but as it is not safe for the party agent to be sworn for the reasons that I have twice named Apot. 12.10 and God himself suffers Satan whom he knows to be a Calumniator to be also an Accuser yet the accusation is so to be put into suit or action and the accuser is so by contract to give security under the penalty of a certain pecuniary Mulct or of a certain note of Infamy under the price of the loss of his time Exod. 11.19 as the Law speaks except he prosecute and prove the suggestion and accusation he hath given in So it is provided for on both sides on the one side by the Religion of an Oath on the other side by a double Mulct and no simple Infamy so that the Agent cannot calumniate nor the party guilty or defendant cannot fly back Now that first of all the guilty or defendant party should be sworn and then answer which some cannot away withall it is just and lawful for if he should do it unsworn he should do it but in a trifling manner that is being free from the Religion of an Oath if any clause in the action should more closely presse him he should refuse to answer should turn himself to and fro seek shifts diversions and cautels should answer nothing explicitely and home that which in conscience of Religiou he is tyed to do after he has bound himself by oath to do all things holily and clearly that he had rather be guilty of doing an injury then of Perjury and would rather subject himself to losse then damnation Shall we take a form hereof from the Law and the holy Writ none seems to me fitter for that purpose then that questioning of Ezra in the 9. and 10. Chapters of Ezra where the parties guilty or defendant answer but first were sworn The order and course of which judicial proceeding was this some of the principal persons come and relate the matter to Ezra of Marriages contracted by many suppose an hundred and ten with strangers chap. 9.1 Ezra forces those guilty or defendant parties even many of them not guilty or complained of to take an oath chap. 10.5 he forces them too in a cause in which they might be convinced by witnesses but first he forces them After that as in the 5. chap. 16. verse Esdras with the rest to whom the care of that cause was delegated sit upon the cause which the third Moneth after they bring to effect Which form being used by Ezra a ready Scribe and skilful in the Law of his God it may answer the desires of any man not unjust as to the practice of the Law as they speak and the knowledge of the rules thereof And this is the former use of an oath just and lawful in the settling of the foundation of a suit or controversie The other is when arguments are used to make good the snit or controversie begun Now the arguments or these Confirmations to which the Judge gives credit are partly marks and presumptions such as the nature of the cause bears certain and undoubted partly in corrupt and sound testimonies Presumptions or marks such as are brought forth by the Parents in the case of the slandered Virgin Deut. 22.17 Testimonies upon whose credit the whole action is confirmed Deut. 19.15 In the number of which I say of Testimonies I place an Oath and that bounder of controversie or as they speak that decisory oath of controversie Heb. 6.16 The Hebrews out of the old Canon make
the Commonwealth If as to the Law his case be better that makes troubles in the Church of God then his that has done it about his friends money Compare these one with another First the Magistrate then the party agent one perhaps of the meanest of the common people then the case of a mans small summe of money and the case of the Commonwealth further that Pawn sometimes may somewhere be discovered but those clandestine conspiracies cannot unless you grant such Inquisition for that 's vanished into the air left no impression behind it Either I am very much mistaken or whether you consider the persons or the matter or the moments or the events of the things the equity and necessity of an oath is here greater Therefore that the party guilty or defendant should be so interrogated in his own cause 't is allowed by Gods Law and that also by the laying on an oath is lawful And this last use of an oath is just and lawful not onely that the state of the question may be settled by the answer of the party guilty or defendant as before is laid down but also that the confirmations of the cause that is the pillars of the proofs may be gathered together whereupon the Judge may relye to determine the suit on one side This may suffice for this purpose unless that as I believe there rest one knot or another not worthy the loosing but that as the world goes now-a-adayes every scruple that men make becomes a rock they complain that by these means men are compelled to an infinite oath except before hand they may have the Question and afterwards take the Oath The reason hereof I have given before and therefore will not here repeat it This onely I maintain that the usual oath given cannot be declined by reason of Infinity For whilest those bounds and as it were ends of an oath the Prophet Jeremiah speaks of Jer. 4.2 which alwayes in Divinity were accounted the bounds and as it were the ends of an oath in truth justice and judgment whilest these were observed there was caution enough had nor other ends doth the Scripture acknowledge or require 1. In Truth that is truly That no man be compelled to swear contrary to that he knows as it was charged upon Micheas 1 Kings 12.16 Tell me nothing but truth in the name of the Lord. Or if any man like better that Attestation of St. Paul Rom. 9.1 I say the truth in Christ I lye not my conscience also bearing me witness in the holy Ghost This is enough for the first part 2. In Justice that is justly That nothing be sworn but what is possible in which case Abrahams servant took care Gen. 24.5 Perhaps the woman will not be willing to follow me c. The Heathen themselves too had that caution So far as I know and am able And also to the honesty of it wherein they in Ezra 10.3 made provision that is According to the Law St. Paul also Acts 23.3 Commandest thou me to be smitten contrary to the Law This is sufficient for the second part 3. In Judgment that is maturely not rashly for so do the Interpreters distinguish it Of which sayes Solomon Eccl. 5.1 whilest thou art speaking to God Be not rash with thy mouth but taking due time to deliberate thereupon answer These are the ends of an oath which the Scripture acknowledges nor do they require more as it is defined if these three ends be kept 1. I will speak nothing but truth in the name of the Lord 2. Of such things I know and as far as I am able and according to Law 3. Taking so much time to think on 't that there can be no danger from an infinity or endlesnesse Though every petty question is not clear which often happens from the occasion 't will be safe enough to contain within these bounds not to answer any thing falsly or rashly nor to answer concerning such things which he remembers not or is not bound by Law to it that is he will do that which without an oath he is bound to do And he that desires to be more safe then thus in my judgment rather desires to arrogate an infinite liberty then to decline an infinite oath or he is guilty or something else that I will not speak of And now whilest thou art taking care how to avoid a sin by swearing I think it matters not much whether before hand thou promisest by a promissory oath to speak truth or afterwards thou swearest by an assertory oath that that which thou hast spoken is true It comes to the same passe before answer by promissory oath to promise to deal truly or after answer by an assertory oath to attest that thou hast dealt truly I have said and I will say I have done and I will do there are two times but the Oath is the same Wherefore as to the matter I think it matters not much yet thus far it may that it much conduces to the managing of suits at Law both that they may be clear and explicite as also readily dispatched That they may be clear and explicite lest if the party guilty or defendant being not tyed by the bond of an Oath may seem to be at liberty to prevaricate the whole controverted action may float up and down and have neither foundation nor hinge That they may be readily dispatched lest in case the party guilty having answered will not swear to the truth of his answer the Judge should be compelled osten to iterate the questions and act the same thing over and over It is also considerable too because in that form of judgment which is most agreeable to Gods Law Ezâ—a 10.5 and sutable to this Law of ours which is called into question this order is observed first of the oath and then of the question and thâ—… at their request concerning whom the question is made For whereas for the dispatching of controversies Gods Law has made accurate provision nor in Scripture is there no sooner made mention of judgment to be given Exod. 8.14 then that it should be done speedily lest if it be long in doing it become â—our Rightly did they require Ezra 10.13 that he might not be necessitated upon the judgment-seat to give answer to all questions It was tedious not the work of one day therefore after he had in a solemn place given them the oath they might come afterwards at leasure at times appointed and enquiry might be made into the several circumstances of the fact by virtue of the oath before taken The same practice is used now by us and the same custom prevails which whether you look upon the advice is most just or the Ordinance it is most like the Divine Law For if the Questions must go before the Oath so that it should be unlawful for any to take an oath but in open Court surely one day would scarce suffice for one cause and the people contrary to
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
much as to give an Oath yet how often did they then upon small matters unworthy of their cognisance in regard they might have been so easily remedied by the known ordinary Laws of the Land and the ordinary competent Judges thereof call orthodox conformable and worthy Ministers to appear before them from very distant remote places sometimes near upon 200. miles for setting a rail about the Communion Table according to the command of the Ordinary or matters of such inferiour nature these brought on and fomented by Inconformists then to the great mischief to this Nation too too much favoured promoted and prosecuted by the then prevailing power The Fees and charges were then very high insomuch as some Ministers were almost if not altogether undone before they could get up thither and when they came by reason of multiplicity of businesse in the Commons House they staid there long and upon great charge paying high Fees still to the Serjeant or other Officers of the House whilest they lay under restraint which oftentimes was very long When a charge after long delay was given in then they gave their answer after a long stay too Then a Committee of many Members was appointed to examine witnesses which was done without oath then after a long time the cause was reported many of these Members not having heard the whole cause but some one part some another yet often concurring at the voting and reporting the cause to the House of Commons which was a strange kind of proceeding to call it no worse In the Star-chamber and High-commission none used to give sentence but such as heard all the cause and they usually excused themselves when they had not heard all the cause Now when the House of Commods had proceeded thus far upon the matter yet they had done little or nothing but vexed and undone a poor and perhaps guiltless Minister for they were to transmit the cause to the Lords House and there to begin it de novo examine the witnesses again upon oath which as before the other House could not do And here 't is to be considered whether or no it were not anceps perjurium a dangerous temptation to witnesses that perhaps have spoken too largely being unsworn will if but for fear of loss of Reputation confirm upon Oath what they have said without Oath It is to be feared also some poor men foreseeing this unevitable course of undoing them have either wronged their owne cause and betrayed their innocence by confessing themselves guilty or ad redimendam vexationem compounded with their prosecutors even to their own undoing or well nigh If there had been cause and that it could not properly in an ordinary way have been remedied by the proper competent ordinary Judges why should not the cause have been begun heard and determined in the Lords House at first Could the Houses especially the Commons House then have been brought into such due order as not to act extra spheram activitatis suae 't is well to be hoped they would not as above have been desirous to lengthen or perpetuate that Parliament when they can as by right repeal no old nor make no new Law nor tax the Subjects estate nor make Ordinances to have the force of Laws without His Majesties assent King Henry the Eighth suffered the Houses of Parliament in Ireland for a matter of two years or thereabouts to continue petitioning him to dissolve them and dismiss them home which he would not do till he saw cause Though this is not in his commendation yet hereby the just power of the King appeared and the right of his Prerogative which hath been too long and too much trampled upon And surely the Law in this point is the same in Englaud as in Ireland that the just bounds and limits on all sides might be preserved inviolate Touching the Age of Parliament-men Age of Parliament-men In the Lords House none sit there under 21. years of age and some wish none might under 30. though there they are singly for themselves and represent not others as in the House of Commons But in the House of Commons there hath been sometimes as was in the Long Parliament Members about 16. or 17. years of age if not some of them under and their Suffrages and Votes were of as much force as the eldest most experienced in the House And it hath been the observation of some experienced and wise Parliament-men that oftentimes in that House those that had the shortest wings were the highest flyers and such as these could adde number and so consequently weight to a side The inconvenience and hurt that arose from hence is easily demonstrable and hath too much appeared by frequent experience Some have wished that there should have been no Member of the Commons House under the age of 30. years there being so large a field whereout to choose Parliament-men for every place and it being even as it were ex diametro contrary to the nature and denomination of a Parliament which is but a great Senate so called à Senioribus the constituting Members thereof Touching the Election of Parliament-men Election of Parliament-men Some have advised that it should be clearly free without such ambient means as were used in the Long Parliament by some Factions and whereas every man may give his suffrage for Counties that hath 40 s. per annum and in Cities and Corporations without such a value that being the old custom And that which was 40 s. per annum in former Ages is worth now ten times as much well nigh if not more So consequently the Electors should be of better estate The great number of Burroughs Corporations There being such a vast disproportion betwixt the Cities alwayes excepting London and Corporations Burroughs especially and the Counties wherein that Burrough and Corporation is scituate for number of Inhabitants which heightens the concernment In some Counties there being so many Corporations that the County having but two Parliament-men to represent them be the County never so great yet every petty Corporation whereof in many Counties especially in the West there are very many such hath as many to represent it of equal power in the Commons House with any other Member of County or City So that the Parliament-men serving for Cities and Burroughs are in number by many degrees far much more then for Counties which hath been conceived to have been no small cause of our late troubles Some advised for that reason and for other reasons too well known notorious and obvious to every indifferent eye that the number of these Burroughs should be much lessened or at leastwise that power of Electing Parliament-Members Especially so many of these Corporations Cities and Burroughs having in these late troubles so clearly forfeited their Charters Touching the manner of proceeding in Parliament in the Commons House in the Long-Parliament It hath been ordinarily observed as is touched above that in Committees in that Long-Parliament some have
upon contempts arising on other causes Ecclesiastical then any of those ten crimes mentioned in the Statute 5 Eliz. 23. C. 17 Of a Prohibition what it is where it lyeth not and where it doth and how it ceaseth by a Consultation and of the Writ of Indicavit C. 18 An Analysis or unfolding of the two special Statutes touching Praemunire with sundry questions and doubts about that matter requiring more grave resolution Then in the second part of his Apology the Doctor sets forth his Proofs together with his Answers to the objections made against the manner of practice of Jurisdiction Ecclesiastical by those that oppugn it C. 1 Of the distinction of Offences and several kinds and ends in punishing them with the necessity of punishments C. 2 Of two sorts of prosecution of crimes and offences viz. by a party and of office the practice of them in Scripture and in the several Courts of this Realm C. 3 Of the sundry kinds of objecting crimes by a party mentioned in the Civil Law as by reason of a mans publick charge and function also by way of Exception Supplication Complaint Delation and Accusation The true signification of the word Accusatio its divers acceptions definition and exposition thereof with some reason of the frequency of Accusation in Courts of the Civil Laws in former times is also declared C. 4 That the prosecution of crimes by way of Accusation is in most places forbidden or grown into disuse The reasons hereof be partly the danger to the Accusers and partly the hatefulness of that course Therein also is disputed whether all Accusation be unlawful and certain points delivered to be observed by all them that will accuse others C. 5 Of the several acceptions of the word Officium the signification of the words Inquisitio Questio crimina ordinaria extraordinaria the reason why enquiry by office came in place of Accusation Of Enquiry in general and special of-Enquiry special Ex officio nobih sive mero mixto promoto and of the privileges of proceeding ex mero officio above the other C. 6 Of Denunciation a special means of stirring up the office of the manifold use thereof on the other side the Sea The general acception of that word and of four kinds of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expences and what course of dealing against crimes and offences is holden both in Courts of the Ecclesiastical Commission and in ordinary Courts Ecclesiastical of this Realm C. 7 That the Civil and Canon Laws allow sundry means to ground a special Enquiry of office against a crime besides Accusation and Presentment therein is also conteined an Answer to a supposed Rule end declared how from general they descend to special Enquiry And that besides those two either a fame or clamosa insinuatio or private judicial Denunciation or Canonical Denunciation or Indicia or taking with the manner or other notoriety of the fact or impeachment by some of the Complices or collusion of the accuser or the not objecting in due time or when the Enquiry tendeth but to a spiritual punishment may severally any of them serve to warrant such enquiry with some observations touching the nature of most of these C. 8 That to proceed sometimes against an offence otherwise then upon Accusation or Presentment or then upon an Appeal or Indictment which two at the Common Law have respective correspondence unto the two former is no diverse much less any contrary or repugnant course to the Laws Statutes and Customs of this Realm This is proved by Common Law Statutes and practice in proceedings informative and punitive with answer to certain objections made to the contrary C. 9 How the second opinion here to be treated of is that no Lay-person may be cited of office in any cause but Testamentary or Matrimonial and that the drift of that opinion is against proceeding of office in matters criminal The necessary use and equity of proceeding somtimes criminally by the Judges office in Courts both Temporal and Ecclesiastical C. 10 Conteineth an Answer to some further objections made against the conveniency and reasonableness of proceeding against crimes of office C. 11 That the Laws of the Realm do use Enquiries and Proceedings ex officio that they allow it in Courts Ecclesiastical with answer to some objections that are made to the contrary C. 12 Is set down a Reply to the Note-gatherers answers given to certain reasons that have been made long ago for to shew the like course to be also practised in Temporal Courts and an answer to his reasons brought to prove that in proceeding of office there is some contrariety unto the Laws of England C. 13 That the Enquiry ex officio against crimes is allowed both in Civil and Temporal Courts and in Ecclesiastical also by the two Laws Canon and Civil C. 14 Conteineth an answer to such objections as upon the Civil or Canon Laws are brought against all proceedings of office in causes criminal by the Treatisor and the Note-gatherer C. 15 Enquiry and proceeding of office without an accuser and grounded upon some other of the means afore proved sufficient to enter into such enquiry is approved by sundry examples of Scripture C. 16 An Answer is made to such objections as out of Scripture or Ecclesiastical Writers be made against criminal proceeding of office by the Note-gather and others In the third part he concludes upon the whole matter for which his Apology was made C. 1 Of the lawfulness of Oaths What an Oath is and the reason or original formal cause of the use of Oaths C. 2 An Answer to certain doubts made concerning oaths as namely why in Scripture God is said to have sworn how by Oath he is said to be called to Witness An Oath no tempting of God but a part of his Worship Why nevertheless some are repelled from taking Oaths Whether Adjuration be lawful After whose meaning an Oath is to be understood Whether every promissory Oath be simply to be kept Whether an Oath may be dispensed with and how far and whether a Christian may by mutual Oaths contract with him that sweareth by false gods C. 3 Division of Oaths according to the outward form of taking them according to the matter and inward form of them with plain description of every kind of Oath C. 4 That the Ceremonies used in taking and giving of corporal oaths with laying hands upon the Bible or Testament and swearing by the Contents of it are not unlawful C. 5 The true issue of the next Opinion in question Two sorts of crimes and offences prohibited In what causes an Oath here spoken of may not be ministred and the manifold convenience and necessity of an Oath sometimes to be ministred in a cause criminal and penal unto the party with some few objections touching inconveniences thereof answered C. 6 That Oaths of men touching
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