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-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
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
Memoranda TOUCHING THE OATH Ex officio Pretended Self-Accusation and Canonical Purgation Together with some NOTES about the making of some New and alteration and explanation of some Old LAWS All most humbly submitted to the consideration of this PARLIAMENT By EDW. LAKE Philo-Monarcho-phil Justitia Reip. Basis LONDON Printed for R. Royston Bookseller to the Kings most Excellent Majesty at the Angel in Ivy-Lane 1662. To the Right Honourable WILLIAM EARL of STRAFFORD Viscount Wentworth Baron Wentworth of Wentworth Woodhouse Newmarch Oversley and Rabye Knight of the most Honourable Order of the GARTER MY LORD SUch hath been the power of Custom for many Ages that the Authors not onely of just Volumes but of small Treatises too have ever been desirous I know not whether I may say Ambitious to dedicate them to some person of eminent quality and condition as it were Clients to their Patrons for the protecting and crediting them Hereby the Authors have oftentimes gained their desires and the Patrons especially when the excellency of such Books did deservedly acquire it addition of honour and fame and also propagated the continuance thereof to all posterity Numerous instances hereof might be given but Mecaenas may be instar omnium which name of a Nobleman hath in a manner monopolized all noble Patrons as Patron 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 My Lord I am far from having any such opinion of this small Treatise indeed not deserving that name being in great part but an epitomized Collection and the rest brief Memoranda's or Notes rather to excite others to proceed upon that Subject then to rest on this though if by this or any other Act of mine any accesse of Honour could accrue to your Lordship I hold my self justly obliged humbly to present and tender it But my Lord the full scope of my intention in this Model is to the best of my Judgment which I alwayes submit to better and of my skill and power to contribute something tending to the further happinesse and continuance of Truth and Peace with Justice and Honour in this Church and State now by Gods blessing to whom be all Honour and Praise ex post-liminio as it were freed from Slavery and Tyrannical Oppression and restored to a capacity of their pristine Beauty and Splendour by the most happy Restauration of our most Gracious SOVERAIGN whom God preserve This I am sure as my Heart prompts me to speak is my sole intention which aymes onely at the advancement of the Publick Good and is not tainted with any drachm of private Interest And my Lord knowing you do Patrizare that most honoured Father of yours whose Memory must never perish whose Losse this Church and State have too sadly felt but Quis talia fando c. and that I may say as Tertullian de Resurrectione carnis sayes of the Phoenix raised out of the ashes of his dead Sire Alter idem Justitiae Honoris cultor sincerus maximè as he was that emboldens me to desire your Lordships leave to prefix your Name that this may be as an Accessory to follow its desired Principal And knowing you to be such I cannot but as all that know you as well as I I am confident do wish for the common good that your Lordship were put in statum merendi into the sphere of your proper Activity that the Publick might reap the benefit thereof of and that your Talent might be no longer as it was whilest Rebellious Usurpation caused it and did obicem ponere now removed wrapt up in a Napkin nor your Candle hid under a Bushel So wishes so prayes MY LORD Your Lordships much bounden and most humble Servant EDWARD LAKE Westminster 11. Novemb. 1661. To the READER SOme account may perhaps be expected to be given of this small endeavour touching the passing that Act of clearing the doubt touching Coercive Power in Causes Ecclesiastical wherein is that Proviso that forbids all Ecclesiasticall Judges to tender or administer an Oath to any person Ex Officio or otherwise or Purgation whereby any person may confesse or accuse himself so as to make him or her liable to censure or punishment There were not a few persons unfriends at least to the Discipline of the Church of England that insulted much as is touched hereafter and clamoured of the oppression of the Ecclesiastical Courts that hath been say they all the time before the passing of that Act that took away that Oath It was suitable to their interest to call that oppression When Brutus had murdered Caesar he called him Tyrant Ita enim appellari Caesarem facto ejus expediebat saith Velleius Paterculus Histor lib. 2. From the time of passing that Act till within these few dayes I expected from abler pens some Vindication of the proceedings of Ecclesiasticall Courts as touching such Oath and Canonical Purgation and the lawful and expedient use thereof before that Act but none that I hear of attempting it I looked upon the cause as a Derelict took it up and though by the late iniquity of the times I being too much severall wayes unfurnished for such a Work yet if but to give some satisfaction to indifferent men and to wipe away at least in part causeless calumny and to stir up others to a further prosecution hereof I conceived I might adventure upon this little Modell or Plat-form and perhaps more fitly at this time then another till a more complete Structure may be raised upon this subject if more be needful being so learnedly and fully handled especially by Doctor Cosens sometimes Dean of the Arches and that late glory of our Church Doctor Andrewes late Lord Bishop of Winchester That I should escape from objections and censures too I can scarce suppose upon such a Subject as this is ingrateful to such men as are haeredes ex asse to the ancient opposers of it and are inveighers against it and those that executed it quos laeserint oderint alwayes excepting the Members of both Houses of Parliament out of that number Some too perhaps may dislike my Dedication of it though no Act more free then that as not to some of my own profession or rather to my own most Learned and Pious Diocesan the Reverend Father in God Doctor Robert Sanderson Lord Bishop of Lincoln having relation to him by Office of Trust To him and them I should rather have made my addresse then Dedication and have herein consulted with them had time and convenience served before I had attempted this and not carry Owles to Athens go about to give instruction to them from whom I should rather have received it But as to that most Noble Person to whom this is inscribed though according to his Birth and Education his motion hath alwayes been in an higher Orbe and Contemplation of affaires of greater moment more immediately enabling him to serve his King and Country But they by being somewhat more particularly concerned in a great part of the subject matter hereof therefore by some
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
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
memory King Henry the eighth because that many inconveniences had chanced in this Realm by breaking and dissolving good and lawful marriages yea whereupon also sometime issue and children had followed under the colour and pretence of a former contract made with another the which contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the marriage which they liked not and to be coupled with another there was an Act made that all and every such marriages as within the Church of England should be contrcted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had betwéen the parties so married should be by authority of the said Parliament déemed judged and taken to be lawful good just and indissoluble notwithstanding any precontract or precontracts of Matrimony not consummate with bodily knowledge which either of the persons so married or both had made with any other person or persons before the time of contracting that marriage which is solemnized or consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly appear Sithence the time of the which Act although the same was godly meant the unrulinesse of men hath ungodly abused the same and divers inconveniences intolerable in manner to Christian ears and eyes followed thereupon women and men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the contract of Matrimony they might have whom they more favoured and destred they could be contented by lightnesse of their nature to overturn all that they had done afore and not afraid in manner even from the very Church door and Matriage feast the man to take another spouse and the espouse to take another husband more for bodily lust and carnal knowledge then for surety of faith and truth or having God in their good remembrance contemning many times also the commandment of the Ecclesiastical Iudge forbidding the parties having made the contract to attempt or do any thing in prejudice of the same Be it therefore enacted by the Kings Highnesse the Lords Spiritual and Temporal and the Commons in this present Parliament assembled that as concerning Precontracts the said former Statute shall from the first day of May next comming cease be repealed and of no force or effect and be reduced to the estate and order of the Kings Ecclesiastical Laws of this Realm which immediately before the making of the said Estatute in this case were used in this Realm so that from the said first day of May when any cause or contract of marriage is pretended to have béen made it shall be lawful to the Kings Ecclesiastical Iudge of that place to hear and examine the said cause and having the said contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding solemnization cohabitation consummation and tractation as it becometh man and wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the Kings Ecclesiastical Iudge by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never béen made any clause article or sentence in the said Statute to the contrary in any wise notwithstanding Provided alwayes and be it enacted that this Act do not extend to disannul dissolve or break any marriage that hath or shall be solemnizated and consummated before the said first day of May next ensuing by title or colour of any Precontract but that they be and be déemed of like force and effect to all intents constructions and purposes as if this Act had never béen had ne made any thing in this present Act notwithstanding Provided also that this Act do not extend to make good any of the other causes so the dissolution or disannulling of Matrimony which he in the said Act spoken of and disannulled But that in all other causes and other things there mentioned the said former Act of the two and thirtieth year of the late King of famous memory do stand and remain in his full strength and power any thing in this Act notwithstanding Stat. 1 Eliz. 1. By these the inconveniency appeareth of taking away or altering an ancient long-settled Law practised long in all Christian Countries as this was which had it not been good probably the inconveniency and hurt of it had appeared in so long a time and the Law for the Oath Ex officio and Purgation is of like antiquity and practice in all Christian Countries without inconvenience or hurt thereby arising as yet that I ever could hear of therefore such Laws ought to be deeply weighed and considered of before they be repealed or altered And now that I am speaking of repealing and altering old Laws and making new I thought fit to close this Tract with some Notes of mine drawn up almost all of them in the time of the usurped Government and some after His Majesties restauration and communicated to the sight of some of Quality touching the repealing or altering of some old Laws and making new Some are already past and effected as that for the Lords the Bishops sitting again in the Lords House in Parliament and other things These I offer with all humility to be considered of if it shall by those in Authority be thought fit otherwise to be as unsaid Protesting that I retract as before any thing which is here mentioned that shall appear contrary to Gods Word His Majesties Prerogative or the Laws of the Land or the just policy and government of any of His Majesties Dominions Touching Parliaments Parliament proceedings AS a Parliament well constituted and acting regularly conduces much to the happinesse of King and Subject so any exorbitancy or deviation therein of which surely all unbiassed men cannot but confesse we have had too much sad experience in the Long Parliament works the contrary corruptio optimi pessima In the time of the Long Parliament some as it were idoliz'd it even almost to an opinion even of Infallibility of which they have made too much advantage to the misery of King and People Some advised then that that great Wheel that great Court should have had its sphere of activity it s known certain bounds publickly declared and not have been like a great River prodigiously overflowing all its banks and bounds Such a Parliament acting regularly is' t not probable the Members thereof would not so much have thirsted to lengthen much lesse to perpetuate it They were called up to consult may not he that calls his Counsellor forbear consulting him when he pleases and dismisse him Ordinance of Parliament The extent of an Ordinance of Parliament having by some been tentor'd then even almost to Infinity might it not have been precisely circumscribed and the exact definition of an Ordinance given Privileges of Parliament As
given their Suffrage or Vote Negatively or Affirmatively upon the cause when it was to be reported though they have not heard the whole cause and sometimes but a small part of it Great numerous bodies being sometimes too ready to divide into parties and factions as hath been seen too often in that long-Long-Parliament and so consequently endeavouring to heighten their own side have taken hold of and created all occasions and advantages that might further it Oftentimes the Younger tyring and wearying out the Elder or more incurious Members by long Speeches and continuing the sitting of the House long and late in the night till it was grown thin and by the departure out of it of so many of the more Aged and less sedulous Members that the remaining party according to the destined and strongly preoperated design grew prevalent To instance no more and happy had it been for these miserable Kingdoms that it never could have been instanced that fatal great Declaration or as the late blessed King and Martyr called it the Appeal to the People hammer'd out that way by wearying out so many of the Members by sitting so long even all or the greatest part of the night may witnesse this to all posterity Which gave occasion to some to call it a Nocturnal Parliament but very appositely did Sir Benjamin Rudyard one of those ancient Members that was so wearied out when one asked him what he thought of that Vote so carried for that Declaration so late in the night or rather in the next morning answered that it looked like the verdict of a starved Jury Many other indirect wayes to call them no worse were used by interessed parties in that Long Parliament to compass their ends much by surprises when too many Members either wearied out as before or else gone out ither upon their pleasure or private concernments or thereupon absenting themselves from the House then the House being thin'd according to their desires they easily gained the major part of the suffrages or else clap'd in early into the House whilest the negligent party were in bed or absent upon their private business neglecting the publick to which they were called and so carried it and by such like wayes contrived and effected their laboured ends perhaps by their engines so laid to draw away many whose company they would gladly have been rid of out of the House and to keep them out when so absent or to hinder them from coming in at all Such may not improperly be called Parliament Decoyes or rather as in that Long Parliament when some of the Members impeached eleven of their number upon one of them in the charge against him they fixed the stigma of the Parliament-driver and when it made for them imputed it to him for a crime It would be voluminous to reckon up the several species of the sinister artifices and gins which were then dexterously us'd in that Long Parliament to promote unrighteous ends very often by tumults which were at the best of some factious persons by clamours and menaces as it were to force away such Members as they knew would oppose their designs By Petitions too which were but a kind of Tumults too in another dress and most shamefully carried on and gained many times whether we consider the inconsiderableness of the Petitioners Oyster-women Barbers School-boyes as in some Petitions against Bishops if not others as much if not more contemptible or whether we consider the number of the Petitioners many subscribing them that knew nothing of the contents of the Petition if not sometimes giving power with a strange implicite faith to cerrain men of their Faction to set to their hands to what Petitions soever their party should frame the Petitions perhaps framed in London and never sent into the Country but thousands of hands sent up in Schedules to be put to whatsoever the framers should please if not also which is much the same some Petitions sent up out of far distant remote parts from London with very many hands subscribed and the Petitions after they were come up to London altered and yet the same hands continued or set to it Insomuch as in the time of that Long Parliament it was at least once observed that some Petitions or a Petition with some thousands of hands subscribed and coming from some parts remote from London and brought into the House of Commons and there read in the morning took notice being mentioned in the body of the Petition of some passages of words spoken in the House the foregoing evening whereupon one merrily asked What notable Mercury had that last night gone from London into those remote parts and got so many hands in a nights time and brought them back thither that morning This did almost put some to the blush if that had been possible happy could it have suffundere sanguinem ruborem the want whereof did effundere sanguinem cruorem So common was this stratagem of Petitioning grown that it gave occasion to some Satyrist to paste up that Distich upon one of the Back-doors leading to the Lords House viz. Bellua multorum capitum â—…pulus suit olim At nunc multarum bellua fit manuum It was long before the Romans would publish a Law against Parricide and such unnatural and horrid crimes and the Historian gives the reason Ne dum prohibent jubent and haply that reason may well forbid me and others from too much enumerating the unjust subtilties and deceitful wayes of this kind and rather were it to be wished that if possible they were buried in perpetual oblivion and no Topicks were left of them except as Land-marks to avoid and detest them For which ends to good purpose perhaps it might be time well spent to ruminate upon the Journals of the Long Parliament with their Declarations Ordinances and Remonstrances and His Majesties Declarations answering and confuting them especially that of Aug. 12. 1642. For reformation of such obliquities of tireing out the Members and surprising of them in a thin House for as to that way of Petitions and Tumults 't is to be hoped it will not be attempted again Some wished this might have been remedied if thought fit by fixing a competent time for so many hours of the day to sit in not to be exceeded but by consent of the major part of the Houses to be constituted as hereafter followeth A competent number of Parliament-men to be at every debate That no Vote should have been passed in either House without a matter of two parts of three or more as should be agreed upon of the House heard the matter fully debated and that no matter to be debated should be propounded till such a number had been visibly present in the House which might at the first sight have been easily discerned if the seats in the House had been so particularly disposed that without telling their particular number by the Clerks or any other it might have been known which might have been