Ministers are by Act of Parliament severely commanded to do it BY the late Act before mentioned where the Doubt so it is called there about the Coercive power in Ecclesiastical Courts is clear'd and taken away One Proviso is That that Act nor any thing therein conteined shall extend or be construed to extend to give unto any Archbishop or Bishop or any other Spiritual or Ecclesiastical Judge c. any power or authority to exercise c. If any be peccant that way it ought to be amended Another Proviso forbids any Archbishop Bishop c. to tender or administer unto any person the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment This being now forbidden by Act of Parliament every Subject ought to give obedience therein But some now insulting and upbraiding the Ecclesiastical Courts that all this while they have oppressed the Subject with that proceeding which the Parliament hath taken away renewing the old cry in Queen Elizabeths time and ever since against such proceedings which never till now I alwayes except what was done in the late times of usurped government were legally prohibited Though I am far from questioning the reasons whereupon that Act passed but do humbly submit to it both in word and practice yet I hope it will be allowed to make some defence against such persons as so tax such proceedings before the passing of this Act. And herein I shall follow that most able Civilian Richard Cosin Doctor of the Laws and Dean of the Arches in that his Apology for sundry proceedings by Jurisdiction Ecclesiastical c. Mr. Cambden as before mentions him with honour as surely he well deserv'd and that work of his if nothing else evinces it Mr. Swinburn in that Work of his of Last Wills and Testaments printed at London for the Company of Stationers 1611. in the first part sect 6. numb 8. fol. 17. writes thus of him and of that Work of his that Apology I find saith he written by that learned and no less religious man Doctor Cosins at I take it in that worthy Work entituled An Apology for sundry proceedings by Jurisdiction Ecclesiastical c. and so he goes on Upon this subject he hath written so fully that I believe little can be added to it and if any should go about it excepting such additions as well may be added by reason of some emergencies since the time he wrote and some other additions and explications not derogatory from him they would be forced very much to plough with his Heyfer which would but look too much like a Plagiary I could wish the book were reprinted and haply it will be so which may serve for Topicks to this subject For as all the Poets after Homer are said to drink of his Fountain according to that picture or statue of his that denotes as much with that Inscription Ridet anhelantem post se vestigia turbam Even so must I conceive all do from Doctor Cosin that shall write upon this subject I was upon Epitomizing that Apology of his and had made some progress therein but upon second thoughts desisted thinking it better to refer the Reader to him rather then to adventure to abbreviate him and thereby perhaps wrong him an offence that too many Epitomizers are guilty of therefore I say I shall onely make use of some Notes as confessed arrows out of his quiver and sippe of some others elsewhere and point the Reader to his full stream where any that list may drink their fill Upon these words in the late Act Provided that this Act. nor anything therein contained shall extend or be construed to extend or give unto any Archbishop Bishop c. any power or authority to exercise or execute c. any jurisdiction which they might not have done before the year of our Lord 1639. or to abridge or diminish the Kings Majesties 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 altered and explained * 25 H. 8.19 The Statutes for Delegates upon Appeals †27 H 8 130. 32 H 8.7 Not long after two Statues 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.
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 Parliantent 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 it is amongst other things enacted That no Archbishop Bishop nor Micar General nor any Chancellor nor Commissary of any Archbishop Bishop or Micar General nor any Droinary whatsoever nor any other Spiritual or Ecclessastical Judge Dificer or Minister of Justice nor any other person or persons whatsoever exercising Spiritual or Ecclessastical Power Authority or Jurisdiction by any Grant License or Commission of the Kings Majesty his Meirs or Successors or by any Power or Authority derived from the King his Deirs or Successors or otherwise shall from and after the first day of August which then shall be in the year of our Lord Bod One thousand six hundred forty 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 Ecclestastical Cognilance or Jucisdiction whereupon some doubt hath been made that all ordinary Power of Coertion and Proceedings in Causes Ecclessastical were taken away whereby the ordinary course of Justice in Causes Ecclessastical hath been obstructed Be it therefore declared and Enacted by the King 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 both or shall take away and ordinary Power or Authority from any of the said Archbishops Bishops of any other person of persons named as aforesaid but that they and every of them evercisting Ecclesiastical Jurisdiction may proceed determine sentence erecute and erecise all manner of Ecclesiastical Jurisdiction 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 Jurisdiction according to the Kings Magesties Ecclesiastical Laws used and practised in this Realm in as ample manner and form as they did and might lawfully have none 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 ercepting 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 parposes 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 not any thing herein contained shall ertend or he construed to revive or give force to the said branch of the said Statute mave in the said first year of the Reign of the said late Queen Elizabeth mentioned in the said Act of Parliament made in the said seventeenth 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 Queen 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 Hicar General Chancellor Commissary or any other Spiritual or Ecclesiastical Judge Officer or Minister or any other person having or erercising Spiritual or Ecclesiastical Jurisdiction to tenver or administer anto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tenvered or administred may be charged or compelled to confesse or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment any thing in this Statute or any other Law Custom or Mage heretofore to the contrary hereof in any wise not withstanding Provided alwayes that this Act or any thing therein contained shall not extend or be construed to extend to give unto any Archbishop Bishop or any other Spiritual or Ecclesiastical Judge Officer or other person or persons aforesaid any power or authority to exercise execute inflict or determine any Ecclesiastical Jurisdiction Censure or Coertion which they might not by Law have done before the year of our Lord One thousand six hundred thirty and nine nor to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs nor to confirm the Canons made in the year One thousand six hundred and forty nor any of them nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enarted by Parliament or by the established Laws of the Land as they stood in the year of the Lord One thousand six hundred thirty and nine The Contents of the Chapters Chap. I. THe endeavours of the Innovators to change the course of Ecclesiastical proceedings That stupendious Fanatick Hackett his fearful end Mr. Cambdens judgment touching the Innovators Their perseverance in their design of Innovation in King James his time and afterwards The pretended taking away the Coercive power from the Ecclesiastical Courts how gained what use was made of it by the Innovators and how they boasted of their benefit by it Two passages in the Long Parliament touching two Inconformists Page 1. Chap. II. The two Proviso's in the late Act that takes away the doubt touching Coercive power in Ecclesiastical Courts Dr. Cosens Apologie for sundry proceedings by Jurisdiction Ecclesiastical That groundless Opinion That a several Royal assent to the executing of every particular Canon in required is confuted The validity of the Ecclesiastical Laws The clamours of Inconformists Innovators and Fanaticks against the putting of Ecclesiastical Laws in execution though the Ecclesiastical Officers and Ministers are by Act of Parliament severely commanded to do it p. 10. Chap. III. The Heads of the several Chapters in that Apologie of Doctor Cosens Part 1. p. 27. Chap. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A summary relation of what Dr. Cosens in his Apologie hath asserted and made good by Gods Word the practice of the Primitive Christians the opinion of the Father the
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 oftendere 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 qui 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 of 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 Artiouli 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 loud 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 Scripture Be not confounded in speaking truth for thy souls sake for there is a confusion that brings sin and there is a confusion that brings glory and grace But what do I dwelling upon these things when the Learned discourses hereupon on both sides are extant of Richard Cosin Doctor of the Lawes and John Morris and Lancelot Andrewes The Queen not ignorant that Her Authority was in this business struck at through the sides of the Bishops tacitely crusn'd the violence of the Adversaries and conserv'd the Ecclesiasticall Jurisdiction inviolate Thus in a few words he summes up part of them marrow of these Learned dissertations and gives his sound judgement thereupon But still they went on in their design in which I believe they will ever be found immoveable We have had sufficient experience that way at what they aime and that there is no hope of bending without breaking too In their admonition to the Parliament in that Queens Reign they tell us to this effect at least that if they cannot have what they desire by fair meanes they will have it by a way shall make our hearts ake and I think they have indifferently well made their words good Yet blessed be God we are delivered again from them god give us care to beware of them and not to fall again into their snares by those blessed Titles of Mercy and Moderation heavenly good surely if rightly applied Let us but contemplate our fresh miseries and the murther of our blessed King and Martyr King Charles the First and his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 't is well to be hoped 't will prove as much or more effectual then the Pages Memento to Philip of Macedon in another case These men for they were all of the same Leaven still persisted in their design all along the Reign of Queen Elizabeth and upon King James his coming in thinking upon that change to have wrought something extraordinary upon a Prince that had a great access of Dominion and probably at his entrance would endeavour to satisfie all or most so far as with reason it could be expected and to ingratiate himself as far as fitting with his new Subjects But it was our happiness though his trouble and vexation that he was well acquainted with the factious and seditious humours of that gang in Scotland with whom and ours here of the same mould I believe ever was and will be a correspondence and co-operation Ex virids observantia this is too demonstrable They then set upon King Iames with their most humble Petition called The Lincoln-shire Ministers Petition perhaps denominatio à majori it was a complication of many parts there they desire favour for tender Consciences and thereupon was the Conference at Hampton-Court granted where their Reasons were as it were brayed in a Mortar and they or most of them seem'd satisfied but many of them at least soon returned to their vomit In that Petition they promise all obedience
comes to be overthrown this shall not prejudice the legataries for they shall notwithstanding this Judgement thus by fraud obtained be heard to maintain and set up this will again f Lib. 14. Dig. de appellat And as no man shall be prejudiced so none shall reap any advantage by the fraudulent practise of another neither though he was no party nor actor in the fraud himself Alterius circumventio alii non praebet actionem g Lib. 49. Dig. de reg jur One mans-fraud shall not create in another any right to sue The Civil Law can as little endure that the true sence and meaning of a Law should be destroyed by a fraudulent interpretation that keeps the words but perverts the end for which it is made In fraudem legis facit qui salvis verbis legis sententiam ejus circumvenit fraus legis fit ubi quod fieri noluit fieri autem non vetuit id fit h Lib. 29.30 Dig. de legib He deales deceitfully with the Law that transgresseth the true intent of it though he does not trespass against the formal and precise words And therefore when the Law forbids a man to settle any more upon his Bastard than what will barely keep him alive it will not permit him to settle any superfluous estate upon any other person for that Bastards use or the Bastard to receive any such estate from his Parent by another hand Cum quid una via prohibetur alicui ad id alia via non debet admitti That i Reg. 84. de reg jur in 6. which cannot lawfully be done one way or directly must not be done indirectly or by another In like manner as nothing is more precious among men than Life Property good Name Liberty and the right of Contracts in the which the whole civil interest and welfare of all people may be rightly said to be comprised So it is not enough to provide in a general way for them neither for it does not suffice to declare by a Law that neither the Life Property nor Liberty of any Subject shall be taken away but by course of Law and a lawful trial first had nor to forbid calumnies and slanders nor to command that the contracts and agreements of men shall be mutually observed but a special and most vigilant care is to be had also that all proceedings of justice when a suit is brought concerning any of them be answerable to those great interests and that nothing be admitted which can any way though obliquely or afar off infringe or overthrow any of them Whereof the Civil Law is so tender that by bringing the Action a mans right is rather improved than made worse Nemo in persequendo deteriorem causam sed meliorem facit k Lib. 87. Dig. de reg jur To try a mans right is rather an advantage than any prejudice When therefore any of these rights be in question if the Law of a State be so short and defective as that a mischief may be done and yet no remedy be found or not a sufficient one or if a prejudicial act may pass against me that may endanger my whole right in the end and I not present thereat nor called unto it or if I have not liberty to examine my adversary upon his oath to something which will cleare the whole matter and whereof I have no other testimony but his own conscience or if I may not be admitted to make out the matter as well by violent and strong presumptions as by clear and manifest proofs or if the testimony of one onely witnesse be sufficient in any matter whatsoever to cast and condemn me or if where I cannot have my witness to the Bar through sickness or absence beyond the Seas there be not some expedient allowed to have his testimony upon his oath sent to the Court where my trial is to be or if such just exceptions as may take away or at least extenuate the credit of the evidence brought against me will not be allowed or if the Justice of a nation be too quick and over hasty in concluding upon the rights of men before they can well prepare to defend them or on the contrary be too slow and tedious as not limit a time when suits shall determine of themselves if they be not judged before or if one sentence shall be so final that I may not appeale nor bring my right to a triall any more I say where these proceedings or such like be allowed and and practised whatsoever is most precious and of highest value amongst men be it Life Property Good name Liberty right of Contracts or whatsoever else is flying to the sanctuary of the Law it is subject to be destroyed and taken away For whether the rights of a people be prejudiced by an irregular way of bringing them to trial and iudgement or by the iniquitie of those Lawes that shall judge them in the end the mischief is all one A State therefore that will sufficiently provide for defence of their peoples rights must not onely take care that the Lawes that must definitively over-rule and determine them be equal just and rational but the formes of trial must be the same also that the same security and just dealing which is the end of both may be obtained And herein the Roman Civil Law has been more exact and careful than some other Lawes of the world have been for there is nothing of what nature soever it be but the Civil Law has ordained a means to bring it to a discussion and trial either by giving a special Action in the case l Tot. Tit. Inst de action or a general one m Dig de praescript verb. in fact action relieving by ordinary remedies or if those fail by such as are extraordinary n Tot. tit Dig. lo. de in integr res titu helping men jure actionis or officio judicis that is by way of complaining in their owne name or borrowing the name of the Magistrate o Gl. in s actio Inst de Action verb. quam jur to make their complaints more effectual so that one way or other a remedy may be had whatsoever the evil be nor does it suffer any just complaint to go away unremedied And although it gives the highest authority to Orders and Decrees of Court yet it is so tender of and has such a heedful respect towards the Rights and Interests of men that whether a man be concerned alone in a cause or whether others be concerned with him it allowes of no Act Order Decree or Judgement but against those onely that were first call'd to see it done And therefore every judiciall act done without warning given is accounted surreptitious and declared void and null p Marant spec part 4. Distinct num 10. The effect of which nullity is that as to him that was absent and not heard the Cause is to begin againe Judicatum tantum
rationum damonstrationum evidentia sic ordinis praestantia antecellunt The Roman Lawes saith he are made after the likenesse of the Decalogue and do not differ from those notions and principles of Reason which Nature hath implanted in all men And it is out of all question that setting aside Gods Law they are as more ancient so more renowned as of higher authority so truer and clearer in determination as of a more evident demonstration and reason so of a more excellent rank then other Laws that yet have been Which conformity and likenesse of the Civil Law to the Divine and Eternall has been the onely cause that the Casusts and Divines that have created upon cases of Conscience and have laboured to teach men what rules they must walk by to doe justice and to execute righteousness in their dealings and communications with one another they doe every where about their books and writings propose set down the very rules and maxims of the Civil Law as the best lessons of morality justice citing the very Lawes themselves and the authorities of that profession which were incongruous and vain for them to doe were not their justice equity and soundnesse unquestionable and their authority beyond all dispute even in those things for which their authority is brought by them Neither is it they alone that set this high estimate upon the authority of the Civil Law since the Learned in other faculties doe the same with whom there is nothing more frequent then when the duties of men one towards another in their severall relations com to be set forth as between Parents and Children Masters and Servants Husband and Wife Sovereign and Subject Magistrates and private Men Captain and Souldiers one Citizen with another or when the best rules and advantages are to be laid down for the first founding of a Common-wealth or the keeping of it in safety and splendour or when the justice and convenience of a Law is in question or the actions of Men even of Princes themselves be to be approved or condemned In all these cases and the like nothing I say is more usuall with Writers of highest renown for Learning and wisdome then to fort fiâ— their resolutions and dictates one way or other with the practice and discipline of the Roman State and to make the Civil Law their Touch-stone to try all things by and the best and most approved ballance to weigh them in judging the authority thereof to be beyond deniall in any thing that it does either defend or disallow and for such as it is presented does it passe currant with all men The Civil Law requires that an act should be worthy and laudable as well as lawfull that it should be faire equitable ingenuous and candid as well as strictly just Subtilties and niceties of words and those apices juris finesses of Law and fine-spun webs of Wit which are opposite to integrity and honest dealing and which through a precise form of words and strict propriety of speech would frustrate what was purely at first intended it will not allow of or endure Bonae fidei non congruit de apicibus juris disputare says Vlpian t l. 29. Parag 4. Dig Mandat It suits not with sincerity to contend about curiosities Sensum non vana nominum vocabula amplecti oportet u l. 2. Co De coust pecuu The true intended sense and not the bare litteral signification is to be pursued Scriptum sequi calumniatoris est boni verò judicis voluntatem scriptoris autoritatemque defendere says Gail x Lib 2. obs 132. out of Cicer pro Caeâ—inn It is the part of a Caviller to keep close to words but of an upright Judge to uphold the intent and meaning of him that spake them Qui pertinaciter à scripto recedere non vult perniciosè erraet sayes Peckius y Ca 88. De reg ju in 6. in in princ He shall offend perniciously that will grant but what the very words will bear and will be got to yield no further And therefore the Civil Law which we have now had it been in being in the third Punick War when the City of Carthage by a crafty exposition of words was quite demolished by order of the Roman Senate after they had first given their faith to the Carthaginians in these expressions Civitatem Carthaginis salvam fore jura privilegia immunitates easdem habituros quibus antea semper usi fuissent The City of Carthage should be saved and the same rights immunities and priviledges should be continued unto them which they always had would have condemn'd the whole Senate for such their breach of faith and treachery though there was not the life of any person touch'd For who could doubt but that the Carthaginians articling for the safety of the City did aim and intend to have the place preserved as well as the persons And it was a shameful defence to say as the Romans did that when the people of the City were all preserved and kept alive the true City was saved which was as much as they promised though the walls and buildings themselves were destroyed Civitatem maenibus urbis minimè contineri The word City does import the Men and not the Structure or Edifices thereof For although in strict propriety of speech there is that nice difference inter urbem civitatem quò urbs aedificia Civitas incolae sint yet leguleiorum est syllabas apices aucupari non militaris simplicitatis sayes Alberâ—cus Gentilis z De jur Bell lib 2. ca. 4. It is for Lawyers to catch at words and not for Souldiers whose plain meaning admits not of such nice distinctions In fide quid senseris non quid dixeris cogitandum est says Grotius a De Ju. Bell lib 2. ca 16. nu 1. out of Tully Where faith is given what was meant is to be regarded rather then what was spoken The Plataeans were as selfe and unworthy when after they had promised to send home the Prisoners taken slew them first and so sent them home dead quasi cadavera essent captivi mortuus homo esset homo says Albericus Gentilis b d. ca 4. as if it were to be believed that the Carkases were the Prisoners themselves or a man dead could be thought a man And as deceitful were the Baeotians too who having ingaged to restore the City did deliver it up not standing but rased and pulâ—d down So was it an act most treacherous and false in Alexander who first gave a besieged Town an Assurance that they should go forth of the Town safely and then after they were quite gone forth and set forward some part of their way put them all to the sword Grotius c d ca 16. out of Tully says truly ejusmodi fraudibus astringi non dissolvi perjurium by such fraudulent evasisions perjury is rather augmented then wiped away In Contracts between
all learned men It continued flourishing many hundreds of years during all which time it dealt in affairs of the greatest consequence and variety and did increase in great plenty and abundance of all things and whatsoever was in any kind rare curious or exquisite in any part of the earth besides it was brought thither And therefore Athenaeus has not doubted to call Rome in express termes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Abridgment and Summary of the whole World as if Rome wanted nothing which all the other parts of the earth afforded or as if we ought to esteem it Orbem in urbe the wide World confined in that one City In congruity therefore of reason must it be concluded that a Nation in all other things so much superiour unto others must also have Laws and rules of conduct proportionable else could they never have brought to pass so great and glorious things as they did For by the benefit of wholsome Laws and prudent order is it that great atchievements are accomplished in a Common-wealth and such mighty works effected Hereupon Tully contemplating the Laws of Rome as well as their riches does declare tantam sapientiam majoribus suis in jure constituendo fuisse quanta fuit in his tantis opibus imperii comparandis they shewed as great wisdome in framing their Laws as they did in getting the infinite wealth which their State then had And well it is observed and delivered by many later writers that in the Romane Empire the greatness thereof is rather to be imputed and ascribed to the wisdome of their Laws and Government then to their armes and valour And although in Vegetius his opinion Disciplina militaris acriter retenta principatum terrarum Romans imperio peperit Their strict holding to the rules of Martial discipline made the Romans Masters of the world yet Sulpitius the Poet will not give it to that onely for in his judgment Duo sunt quibus extulit ingens Roma caput virtus belli sapientia Pacis it was their wise government in peace as well as their success in war that did so highly advance their City for what their armes did get their Laws did keep according to the saying of Florus Viribus parantur provinciae jure retinentur Thomas Aquinas d Lib. 3. de Regim Princip ca. 5. sayes that though they got the Empire first by injustice rapine and bloud-shed yet they did deserve to hold it and to have it established upon them for the good Laws they had ordained Saint Austin e Lib. 5. De civit Dei ca. 12. designing to set down how it came to pass that God did so exalt and enlarge the Roman Empire and what actions were the cause thereof imputes it to their virtues and to their heroick and gallant mindes to their prudence and honesty rather then to their strength and power For he brings in Cato speaking to the Romans of his own time that had much degenerated from their Ancestors Think not saith he that our Ancestry brought the City into this height by armes if it were so we should make it far more admirable then ever for we have greater plenty and abundance of men more confederates a greater store also of armes and horses then they had But they had other means which we want industry at home equity abroad freedome in consultation and purity of minds in all men free from lust and enormity For these we have gotten riot and avarice publick beggery and private wealth riches we praise and sloth we follow good and bad are now undistinguished ambition devouring all the rewards due to vertue Nor wonder at it when each one patcheth up a private estate when you serve you lusts at home and your profit and partiality here in the Senate This is it that laies the State open to all incursion of others Again in the same place he sayes of them That they were greedy of praise and bountiful of their purses they loved glory and wealth honestly gotten Honour they dearly affected but through virtue offering willingly both their lives and their estates for renown The zealous desire of this one thing made them set aside all other inordinate affections whatsoever and hence they desired to keep their Country first in freedome and then in Soveraignty because they saw how baseness went with servitude and glory with dominion f Amore primitùs libertaris post ctiam deminationis cupiditate laudis glo iae multa magna â—â—cerunt And then concludes Wherefore saith he whereas the Monarchies of the East had been a long time glorious Godresolved to erect one now in the West also which although it were after them in time yet should be before them in greatness and dignity And this he left in the hands of such men which he supposes were not the generality of the people but some few only but those very good and gallant men to punish the loud and crying guilt of other Nations And those men were such as for honour and dominations sake would have an absolute care of their Country whence they received this honour and would not stick to lay down their own lives for their fellows suppressing covetousness and all other vices onely with the desire of honour g Pro isto uno vitio id est amore laudis pecuniae eupiditatem multa alia vitia corrum pentes And then in the fifteenth Chapter of the same Book speaking still of the Romans and the course they took in the prudent conduct of their affairs he closeth thus most excellently His omnibus artibus tanquam vera via nisi sunt ad honores imperium gloriam honorati sunt in omnibus fere gentibus imperii sui leges imposuerunt multis gentibus hodieque literis historia gloriosi sunt pene in omnibus gentibus Non est quòd de summi veri Dei justitia conquerantur perceperunt mercedem suam By these Arts as by sure steps they climbed to honour rule glory their name was magnified almost in all Nations they sent out their Laws to many Nations and they were obeyed there is almost no Nation but their Histories and writings mention them No reason have they to murmur at the justice of the true and high God they have had their reward h Terrenam gloriam excellentissimi imperii Deus â—oâ—eâ—ssit ut redderetur merces bonis aptibus corum id est virtutibus quibus ad tantam gloriam pervenire nitebantur Although therefore the Romans in their gallant and heroick minds they bore did propose to themselves no other end but their temporal honour and earthly greatness not once thinking of doing honour to the great God nor looking towards any heavenly felicity that might follow after this life ended having not yet been taught or heard of any such thing yet it must be acknowledg'd that the effects which have flowed from their desire of glory and rule have been singular and admirable amongst which their
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 Articuli 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 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 nobili 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 and 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
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 not 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 Esau 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 of Birth-right as Esau and in private causes I adde also of the least concernment if compared with the publick Then surely by better righr 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 Zedekiah 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 their 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
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 Apoc. 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. 21.19 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 Religion 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 two parts or rather if you will two kinds of an Oath The former is a solemn contestation wherein any call God to witnesse for want of other witnesses who either cannot or will not bear witnesse even God they call to witnesse who is present every where and in all actions and hath the right of a witnesse The Lord Jehova lives before whom I speak this is a form of contestation Iudges 8.19 The later I may call it an Execration wherein a man gives oath to his contestation or joyning issue in the cause as 't is called pawning as it were his salvation and renouncing all the hope and help he hath from God if he bear witnesse falsly So do the Lord to me and so let him adde there is a form of Execration 1 Sam. 14.44 Neither have Divines thought it of lesse concernment or that the guilty or defendant party was lesse bound whether he used either of those forms or both I adde also whether the Magistrate contest the guilty or defendant party or by adjuration he be execrated or he do it to himself by taking an oath for 't is all one whether this or that be done whether an oath be laid upon the guilty or defendant party by the Judge or he lay it upon himself And that they take for granted as well by Prov 29.24 in regard of the position as by Iudges 17.2 by reason of the condition But this controversie brings another I prosecute not that I prosecute that I begun touching Arguments Now God hath given power to the Judge to enquire of the Arguments touching the crime and of citing the Testimonies as also to the giving of oaths and that for the collecting the confirmations of the cause That power is mentioned Deut. 13.14 Thou shalt enquire saith that Lord and that in general whereof he subjoynes two kinds the first Thou shalt search that is presumptions and arguments The second Thou shalt aske that is witnesses and those that are knowing of the passages concerning that cause The Arguments So it was lawful for Joseph to search his Brethrens sacks that he might find the Cup taken away by theft Gen. 44.5 So is it lawful for our Magistrates to search the hidden corners and secretest rooms of the house so to find out marks or presumptions of suspected crimes Testimonies So it is provided by Gods Law Lev. 5.1 If a soul hear the voice of swearing the Chaldee Paraphrast a most ancient Interpreter of the Law hath added to it * Here seems to be some mistake in the printed Latine nor where we have erred nor is it to be doubted but that it was according to the sense of the ancient church even before Christs time made or given by the Judge and he can be a witness of that matter as one that saw it and knew it in which place the Septuagint turns
having the said contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding solemnization cohabitation consummation and fractation 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 been 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 Day next ensuing by title or colour of any Precontract but that they be and be deemed of like force and effect to all intents constructions and purposes as if this Act had never been 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 to the dissolntion or disannulling of Matrimony which be 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 way 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 AS a Parliament well constituted and acting regularly Parliament proceedings 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 The extent of an Ordinance of Parliament 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 As also the just privileges of Parliament explicitely have been made known Privileges of Parliament that the Subject might not then have sworn or promised or protested to have maintained and observed them and yet could not possibly know what they were That due care should have been taken that they might have been observed and kept inviolable on all sides neither diminished nor scrued too high and both the Members of the Houses and the People to have had their just rights entire and for this purpose that that Protestation then put in by the Lords Spiritual the Bishops The Bishops Protestation with their Petition to have the force removed that kept them from the Lords House should have been well consider'd on and the right of Protestation in Parliament declared and maintained being a great privilege And whether after a just Protestation unjustly rejected and the Members kept out of the House by force that so protested and petitioned whether the other Members could then have proceeded further in the House In the late Kings time in the beginning of his Reign when the Earl of Arundel was imprisoned in the Tower about his sons marriage of the Duke of Lenox's daughter being of the Bloud Royal without the Kings consent the Lords would do nothing in their House till he was restored in regard he was committed onely for a misdemeanour and neither for Treason Felony nor breach of peace in which cases they then confessed a Member of Parliament in Parliament time might be kept prisoner The King none of the three Estates And the Lords Spiritual being one of the three Estates as 1 Eliz. 3. and elsewhere and the King being none of the three Estates the contrary whereof hath been falsly held but the Head and the Lords Spiritual and Temporal and the Commons being but Members and further the Lords Spiritual being one of the greatest Estates of the Realm as 8 Eliz. 1. Some doubted whether one of the Estates can destroy another and whether that come not near the contradicting that Axiom that the Parliament cannot be Felo de se whether that concerns not the Lords Temporal and Commons as well as the Lords Spiritual As for His late Majesties assent 't is known how far the prevalent power in both Houses then carried that and other things too to the misery of the Kingdom Who knows not in what condition the King then was forced to flye by reason of the tumults from Westminster to remoter places And as touching that Act of Parliament for their expulsion out of the Lords House it is not to be forgotten that when it was first brought into the Lords House it was rejected and ought not to have been brought in again that Session yet afterwards it was contrary to the order and course of Parliament brought in again when a great part of the Lords were absent if
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 England as in Ireland that the just bounds and limits on all sides might be preserved inviolate Touching the Age of Parliament-men In the Lords House none sit there under 21. Age of Parliament-men 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 Some have advised that it should be clearly free Election of Parliament-men 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 There being such a vast disproportion betwixt the Cities The great number of Burroughs Corporations 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 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-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
Monastery might repair to officiate and return home to his D'orter at night then they often procured these Livings from the Popes to be annexed and appropriated to their House ad supportandam mensam thereupon called Mensals the Cure to be so discharged by one of their House and no Vicaridge to be endowed and all the tithes and profits to come to the Monastery And thus it stood at their dissolution and such small care was taken that so they came into Lay-mens hands who allow them something or nothing as they please some inconsiderable small Tithes or some pety small pension of 5. or 6 l. per annum or sometimes somthing more or lesse Near Market Towns and great Towns commonly were one or more Monasteries scituared and the Abbots and Priors ordinarily got all or the most of the Livings in such Towns for Mensals as before so that wee see them at this day such pittyful small things as they are and tenuitatem beneficiorum necessariò sequitur ignorantia clericorum and in such Market Towns to supply the Vicar or Curate Lecturers are taken in and they must live of the benevolence of the people which is usually or at least amongst many of them more or lesse as the Lecturers preaching pleases them so he must humour their fancies or fast And there must be a Lecture-day commonly on the Market-day too that the Countrey people coming thither may drink in his Doctrine which oftentimes has been very strange and what the consequence of this has been we have sadly felt of late years being not the least cause of our miseries God grant it may be prevented for the future It is alledged that the power of the Bishops in use and practice before the dissolution of Monasteries for augmentation and endowment of Vicaridges is taken away these Impropriations being turned into Lay-fees Yet I humbly conceive salvo meliore judicio that the King had no more transferred upon him then what the Abbots and Religious persous had Nemo dat quod non habet Nemo plus juris in alium transferre potest quam ipse habuit Reg. juris Nor was more transferred to the possessors or their Ancestors then what the King had If so then what was legally done in such cases by the Bishops before the dissolution why may it not now be done too and yet some moderate remedy should be found for the purchasers especially those that have so long enjoyed them and the Bishops Deans and Chapters and others namely the Bishop of Lincoln who had very many great Mannors taken from his Bishoprick which are at this day in Lay-mens hands and a competency such as it is made up to him almost altogether out of small Impropriations He and others should be duly considered and not detrimented hereby And also if it shall be thought fit Touching the bounds of Jurisdiction Ecclesiastical and Civil that the bounds of Jurisdiction Ecclesiastical and Temporal may be clearly set down and fixed to take away all matter of contention that for want of it may arise so that probably as few prohibitions as may be need be sued forth But as they now are two Sisters under one and the same Crown so they may live peaceably and friendly for ever And also if it be thought fitting The Ordinaries power about distribution of Portions c. that whereas the Ordinary according to Law and long practice hath distributed portions to the widow and children upon Intestates goods upon the Administrators giving up their Accompts to him for which they enter Bond upon their taking out of Letters of Administration which distribution and bonds and bonds taken for performance of Wills are by some excepted against that that and all other just powers of the Ordinary may by Act be ratified And also if it shall be thought fitting Against concurrence of Jurisdiction Peculiars c. that for the quiet and ease of the Countrey and in regard sometimes of the inconvenience and disorder in the execution of Jurisdiction Ecclesiastical no peculiar Jurisdiction nor concurrency of Jurisdiction be suffered the parties that have Interest therein to be otherwise satisfied The instances of the inconveniences of such peculiar and concurrent Jurisdiction may be given but I forbear lest I might seem partial That all Wills All Wills c. proved at London from remote Counties to be transmitted into the several Counties Inventories Bonds for Administrations and Accompts and other proceedings touching them which in the late Usurpation were out of all places brought to London and no Record thereof in the County or Diocese where the deceased dyed so that the Subject is put to great trouble and charge sending to London when he hath occasion to use any of them and may be forced to sue at London when he would recover his right thereupon That all such Wills Inventories Bonds Accompts and all other proceedings concerning the same or true copies thereof to be made valid and authentick by Act of Parliament be transmitted at the charge of the Register at that time into the Registry of the Bishop of that Diocese where the party deceased dyed or had his principal mansion or dwelling house at the time of his death or rather in regard of the largenesse of some Bishops Dioceses including many Archdeaconries and many counties they should be so transmitted into the respective Registries of every Archdeacon or Commissary of the said Archdeaconry and that every person concerned may sue for their right thereupon before the Bishop of the Diocese or his Chancellor or such Commissary or Archdeacon or his Official During the late troubles the Episcopal and Archidiaconal power having been de facto abolished or suppressed the Subjects have been forced to their great charge and trouble to prove all Wills and take Administrations c. at London before Commissioners or pretended Judges there for proving of Wills and granting of Administrations c. That the Act of 32 H. 8. about the prohibited degrees of Marriage Degrees of Marriage be by Act of Parliament explained That the late Traytors Heads and Quarters Traytors heads of the Murtherers of our late Soveraign of blessed memory and the others that are set upon wooden stakes should be set upon Iron pikes or stakes as Piercy and Catesby's Heads were upon the Parliament House Touching the suppressing of all Books and Writings published against the Regal Rights or the Right of the Subject SOme have advised if it be thought fit About the suppression of seditious books that a most choice and able Committee be appointed to enquire after all Books and Writings whatsoever which have spoke against the Regal Right or the Right of the Subject that they may as many as can be got either be purged or burnt and declared against by Authority and not remain as apt fuel for a new flame but be buried as far as can be in perpetual oblivion And perhaps in the first place as most pestilent those Tracts that have