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
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
might not have done before the year of our Lord 1639. or to abridge or diminish the Kings Majestics Supremacy in Ecclesiastical matters or affairs nor to confirm the Canons made in the year 1640. I say upon these words some are ready mistaking questionless the words and meaning of that Act to renew that old exploded Opinion or rather groundless Fancy That a several Royal assent to the executing of every particular Canon is required Hereto Doctor Cosin answers That admitting this were true then all the other opinions of those that oppugn the ordinary Jurisdiction Ecclesiastical stand in no stead and might be spared because this would cut off all at once For none that exercise ordinary Jurisdiction Ecclesiastical have it in particularity which by the oppugners seems to be meant otherwise then by permission of Law to every of their proceedings and impossible were it by reason of the infinity of it and troublesomness to procure such particular assent to the execution of every Canon His Majesties Delegates when Appeals are made to His Majesty in Chancery would signifie nothing could not exercise the power to them delegated by reason of the want of such particular assent and it is a gross absurdity to grant as even the Oppugners and Innovators do That Testamentary and Matrimonial causes are of Ecclesiastical cognizance to say nothing of the rest of Ecclesiastical causes and yet cannot by reason of this want be dispatched nor can be dealt in by any other authority according to any Law in force This would speak a defect in the publick Government that the Subject should have a right but no likely or ready mean to come by it and great offences by Law punishable and yet no man sufficiently authorized to execute these Laws Since the abrogation of Papal pretended Supremacy when the ancient rights of the Kings of England of being Supreme Governors over all persons within their Dominions as well in all Spiritual or Ecclesiastical things or causes as Temporal and that no forreign Prince Person Prelate State or Potentate hath or ought to have any jurisdiction power superiority preeminence or authority Ecclesiastical or Spiritual within this Realm and so forth as in the Act and the Oath Since these rights were as it were ex postliminio restored and declared to have been as they ever ought to have been in the Kings of England many Laws have been made in several Parliaments for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution thereof and some of the Ecclesiastical Laws were enlarged astered and explained * 25 H. 8.19 The Statutes for Delegates upon Appeals †27 H 8 130. 32 H 8.7 Not long after two Statutes for assistance of ordinary Ecclesiastical Jurisdiction and for the speedier recovery of Tithes in Courts Ecclesiastical * 34 35 H. 8 19. The like for the recovery of Pensions Procurations c. †1 Ed. 6. c. 2. In the time of Edw. 6. in a Statute since repealed by Queen Mary a great number of particular causes of Jurisdiction Ecclesiastical are there by the way rehearsed that Ordinaries and other Ecclesiastical Judges might and did then put in execution So 1 Mar. c. 3. 1 Eliz. c. 1. 5 Eliz c. 23. 9. That Perjury or Subornation in a Court Ecclesiastical shall and may be punished by such usual and ordinary Laws as heretofore have been and yet are used and frequented in the said Ecclesiastical Courts Which proveth the usual practice of Jurisdiction Ecclesiastical hitherto used without any special assent to be lawful So 13 Eliz. c. 4. c. 10. and many more in the same Queens time and King James and King Charles the First that blessed King and Martyr I say many are the Laws that have been made for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution of it and some of these Laws were enlarged altered and explained But never was there any Law Custom or Act of Parliament that required a several Royal assent to the executing of every particular Canon Many are the reasons which Dr. Cosens gives in the first Chapter of his Apology against that particular Assent wherein he shews his great candor and ingenuity and desire to give abundant satisfaction to all Opponents though never so unreasonable that were it not as clear as the Noon-tide light that no such particular assent is needful some might think that he fear'd his cause and be ready to say that Defensio nimis operosa reatum quasi arguit But touching the validity of the Ecclesiastical Laws there needs I conceive no more be said then what is expressed in that Act of Parliament 25 H. 8.19 the Ecclesiastical Laws that were in use and practice before that Statute are thereby established thus Provided that such Canons Constitutions Ordinances and Synods Provincial being already made which be not contrariant nor repugnant to the Laws Statutes and Customs of this Realm nor to the damage or hurt of the Kings Prerogative Royal shall now still be used and executed as they were before the making of this Act untill such time as they be viewed c. by the 32. persons mentioned in that Act which is not yet done The Ecclesiastical Laws which have been made since that Act and all that ever hereafter shall be made so long as that Statute stands in force the requisites in that Act being observ'd are thereby I conceive confirmed or to be confirmed The Submission and Petition of the Clergy mentioned in that Act is That they would not enact or put in ure any new Canons c. in their Convocation without the Kings Royal assent and authority in that behalf There it is said That the Convocation in the time coming shall alwayes be assembled by authority of the Kings Writ and that the Clergy must have the Kings most Royal assent and licence to make promulge and execute such Canons Constitutions and Ordinances Provincial and Synodal else they may not enact promulge or constitute any such Canons c. And this course hath ever since been observed Every Convocation called by His Majesties Writ and the Clergy had especial license from His Majesty to enact such Canons c. and to execute them The Provision following being observed which is this Provided that no Canons Constitutions or Ordinances shall be made or put in execution in this Realm by authority of the Convocation of the Clergy which shall be contrariant or repugnant to tho Prerogative Royal or the Customs Laws or Statutes of this Realm any thing contained in that Act to the contrary thereof notwithstanding If any be put in execution contrary to this Proviso and contrary to any after-Acts of Parliament whereby His Majesty hath further power acknowledged in causes Ecclesiastical then 't is illegal but that is much sooner alledged than proved The particular Ecclesiastical Laws in force have by Dr. Cosens and others been sufficiently demonstrated I humbly conceive In case any Jurisdiction Ecclesiastical
canses of Defamation Matrimonial causes Tithes if not Legacies also and several other branches of Ecclesiastical Jurisdiction were all along dispatched at Common Law or Chancery contrary to all Law and equity Probate of Wills and granting of Letters of Administration with all the connexes and incidents thereunto belonging and from thence arising were by Commission from that usurping Power committed to a few persons of their own gang at London so that the Subjects from all parts of the Kingdom were to prove the Wills of the dead and take Administration of Intestates Goods passe their Accompts and act the rest concerning them there before them at London The Executors and Administrators must either come up thither personally to them to take their oaths or else have Commissions down into their Countries to do it and the charges to the Subject for such Probate of Wills Letters of Administration and the rest whether they went up themselves to London to dispatch them or more especially if they sent up by others thither to have them done as most commonly they did and not scare one in forty did otherwise and it was the cheapest way probably for them so to do in regard of the charges to send up by others that also had other business of their own there Yet I say by these means and the great Fees taken the charges for proving every Will taking Letters of Administration and the rest came ordinarily to about six times sometimes much more as much as was taken and due before these troublesom irregular times by the Ecclesiastical Judges and Officers to whom of right they appertained that is the Fees and charges usually came to 50 s. or 3 l. or 4 l. or 5 l. and sometimes to 6 l. or more Had such a Grievance and so general throughout the Kingdom reigned in the time of Kingship when faithful and peaceable men acted according to the known Laws of the Land surely the fall of Nilus to the Cadupes would not have made such a noise as our factious Stentors would have then bellowed out And too much of the grievance still remains such Wills Inventories Bonds so Administration with the dependancies thereupon remaining still at London whether the Subject when they have occasion to see or use any of them or sue for any thing concerning them must either personally repair or send for them or sue there which is well hoped will by this happy Parliament be remedied and a course taken that they may be transmitted into every County whence they came for the Subjects ease and that they there may sue upon occasion for any Legacy or other matter concerning them Should it be demanded at whose charge this should be done the dictate of Reason I humbly conceive answers it Qui commodum habet idem onus habere debet And thus for no small number of years our Places our Livelyhoods were unjustly taken from us onely for our Loyalty whilest others that did it gloried in their shame took our bread out of our mouths and did eat whilest we fasted and well nigh starved and yet such is the unsatiablenesse and unreasonablenesse of some of our causelesse persecutors that they could well be content we should still continue in the same oppressed and miserable condition And when His Majesty was happily restored for which all thanks praise and glory be ever rendred to the God of miracles and mercy the Civilians as they were as is before touched the first and earliest sufferers so were the last not a small time after the most reverend Bishops and especially after the rest of the Loyal Clergy were restored that were re-admitted to their places and Offices and when that was done still for a considerable time they were but precarious and of little use or value as before till the doubt touching coercive power was by Parliament taken away which was not till the later end of Summer 1661. and then with the Proviso against the Oath Ex officio and Purgation which not a little diminishes these Offices besides upon reasons known the forbearance of the full execution of such Offices as yet so far as by Law they might execute them is considerable Some Civilians who in contemplation of their natural duty and of their Oaths of Allegeance and Supremacy served His Majesty in his wars against his then rebellious Subjects thereby lost all their Fortunes both real and personal that their enemies could find and certainly never were more sedulous and rigid scrutators or more rapacious Harpies that would not let scarce any thing passe their clutches Non fuit Autolyci tam piceata manus And such suffering Civilians both so in their Livelyhoods their quotidianum and their persons and liberties very often humbly hoped when a time of re-settlement should come that they should have been looked upon as well as others of the same profession that sate still underwent none of these dangers or hazards nor suffered perhaps any thing or but little in their Estates or otherwise especially in comparison with the others or as well as others that had some competency by reason of practice under the usurped Powers as to take and execute Offices under them of great benefit and I had almost said that way if not otherwise also immediately acted against His Majesty and his Authority contrary to their natural duty and Oaths of Allegeance and Supremacy To plead before the usurping powers even after the end of the war it was not at least for a long time permitted to those Civilians of the Kings party especially those that had served him in his wars here For my own part though I could never satisfie my Conscience so far as to plead before any of the usurped powers not so far to acknowledge their power though some years before His Majesties happy restauration I was both here and in Ireland invited and desired to do it yet I would not do it nor ever did that way or any other give any acknowledgment of their power or touch any of their Pitch more then by a forced acquiescence and sitting quiet and still when I was constrained so to do Yet I say I am far from censuring any of these worthy and learned persons of either Robe that did either agere or defendere before that usurping power by way of pleading I would not be mis-understood as to be thought so much as to think amisse of the noble Profession or Professors at Common Law both which I love and honour and do very well know and have heard many of them suitable to their Births Breedings and loyal and generous Minds commiserate the oppression of the Profession and Professors of the Civil Law and wish that the proceedings in the Ecclesiastical Courts by the Oath Ex officio and Purgation might continue as it was before that last Act that took it away even for the justice of it as they conceive as also lest it might seem at leastwise in some mens judgments to savour of a kind of partiality
Ecclesiastical Courts if the party refuse to take them 't is penal to him And in many other cases easie to be enumerated but this may suffice The guiltless and innocent have no benefit by taking away this oath especially that of Purgation nay admitting that which as above some affirm That though they offer to take the oath of Purgation the Ecclesiastical Judge is not to minister it in that case they are endamaged by it and cannot make their innocency appear in such a way and means as the Law did afford and to be restored to all intents and purposes to their good name and fame of which they were in a great part though unjustly bereaved and might have a good Action against any that after such Purgation defamed them The guilty hereby escapes punishment which he may in some sort lucri loco reponere if it may not be said of him as Virgil of the stinging Bee ammam in vulnere ponit Reg. juris The rule of Law is Nemo ex delicto consequitur beneficium The great Hypocrisie of those Innovators and Fanaticks in Queen Elizabeths King James's and in the late blessed King and Martyrs reign King Charles the First to go no further that then pressed the taking away of that Oath and some of them we have seen go much further of late who would be thought to be and so hold it forth that they are the greatest Zelots to have those sins punished that by that means would escape it yet cry like the Lapwing furthest from their nest they would not have the means left to find them out that so they might be punished and other use for their ends which we have sadly felt they made of it as is touched above Herein they somewhat resemble Julian the Apostate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 He would seem to be a hater of a long incompt Beard and entitles that Tract of his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 An hater of Beards and yet he sayes there of himself 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Longam istam barbam addidi c. ideo diseurrentes in ea pediculos perfero tanquam feras aliquas in sylva Many other inconveniences and hurts that too probably may be feared to arise from the prohibition of these oaths in such cases as before might upon further consideration be enumerated and though in the last place yet even that too of adding further discouragement to the professors of the Civil and Ecclesiastical Laws who have not had a few for a long time together may perhaps deserve to be thought upon It is too visible that there are not a few that would not have them enjoy so much of practice and power as that without which the State can scarce spare them that is in maritime causes touching Traffick and Commerce with Forreigners a point eminently considerable as to the benefit of this Nation For the Law it self surely all Scholers and ingenuous men of what Robe or Profession soever cannot but honour it for the Antiquity and in a sort Universality and Excellency of it and the great number of Nations and so many and noble and well-civilized exercise that were anciently and in great part and yet are governed by the rules thereof and the helps received from it even by our own Nation too many wayes demonstrable Before our Saviours time as is touched before in the time of Julius Caesar Cic. famil epist 0 an ancient Civil-Lawyer and often alledged in the Pandects remained at Samarobrina in this Island of Britain and after that the Oracle of that Law Forcatulus Aemilius Paulus Papiniamus professed the Law and kept his Tribunal seat of Praetorship in the City of York and no inconsiderable part of the Municipal Laws of our Nation have flowed from that Fountain and drawn many Rules and Maxims thence So that it may as that learned Civilian Sir Rob. Wiseman Knight Doctor of the Laws His Majesties Advocate general for the Kingdom of Engl. in that Treatise of his of the Excellency of the Civil Law be truly styled The Law of Laws and as it was said to that Roman orator highly commending Eloquence that he lifted her up to the skies that he also with her might be raised up thither so he in that learned and judicious Tract of his setting forth the due and just honour and Encomium of the Civil Laws deserves to be thereby perpetually honoured And for the professors of the Civil Law in this Nation their share of sufferings in these late tempestuous times was the earliest began first some years before the Loyal Clergy were destroyed For upon the passing that Act for the taking away the High Commission in the tail of it was that sting which as the then more powerful part interpreted it took away the coercive power from the Ecclesiastical Courts and so in a manner made them useless and precarious if not ridiculous and within a very few dayes after passed that Act for Poll-money where every Ecclesiastical Judge that had any Ecclesiastical Office of Judicature though some of those places were not worth 30 l. per annum nor 20 l. per annum and some less paid 15. l. a greater summe then some men paid of 10000 l. per annum and more in Land of Inheritance So sharp-sighted was that Act towards that then in a manner even ruined profession The reason of it was visible enough and no wayes dishonourable to that profession or professors who acted justly according to the known Laws of the Land had they done otherwise surely they had not wanted legal punishment as the times then were and the cry that was then unjustly raised against them when the furious flame of Civil war broke forth that wasted the Church all loyal Church-men and all that had dependance or relation to them in regard of any Offices or Places as most if not all Civilians had then As to the Civilians Sublatum fuit questionis subjectum their Offices and Places were quite taken away Indeed the most reverend Fathers the Lords Archbishops and Bishops with Deans Chapters Archdeacons and other Dignitaries in Cathedral and Collegiate Churches tasted of the same cup were A la mode then but not so soon as the Civilians root and branch destroyed but the Beneficed Rectors and Vicars that for their Loyalty were thrust out of their Benefices had a small pittance reserved them though when paid at all miserably shrunk and lessened almost to nothing that is as they called it the Fifths of their Livings But as to the reverend Prelates and Dignitaries and the Civilians there was nothing left under such pitiful Step-fathers were the then nick-named Fathers of their Country the prevailing party in that Long Parliament during the time of the long continued usurping Power even till His Sacred Majesties happy Restauration those causes and businesses which of right ought to have been agitated and dispatched by Civilians in their several Offices and places many of them as