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
Ecclesiastical or Civil within this Realm be not derived or claimed from the Crown as to the execution of it at least then the former objection were of force but another Act of Parliament 8 Eliz. c. 1. shews the contrary sufficiently where all Ecclesiastical Jurisdiction is acknowledged United to the Crown as there fully and that very clause 1 Eliz. 1. together with His Majesties Letters Patents directed forth for confirming Archbishops and Bishops is brought in the preamble thereof as a strong proof without scruple or ambiguity that the authority and jurisdiction by the Clergy executed is thereby given them from Her Majesty This also were there nothing else were sufficient to entitle them the Kings Majesties Ecclesiastical Laws as well as other Laws are called the Kings Majesties Laws But they are up and down in the Acts of Parliament called the Kings and the Queens Ecclesiastical Laws 1 Eliz. c. 2. 5 Eliz. c. 25. 25 H. 8.27 c. and even by the Note-gatherer that great oppugner against whom the Doctor writeth they are called the Ecclesiastical Laws of England And in this late Act above mentioned they are called the Kings Majesties Ecclesiastical Laws Yet for executing of these Laws by the Ecclesiastical Judges what out-cries were made against them especially in the beginning of the late Long Panliament by His late Majesty of blessed memory called the Black Parliament Summa imis miscendo and what favours were then afforded to those Boutefeu's as we have since had sad experience of them God grant we may be cafeful of them for the future I am unwilling to recite Ecclesiastical Judges are not onely tyed by their offices and * Canon 117. Canon Constitut 1604. Oaths but at least in some particulars for which they have though most unjustly been much clamour'd against are most severely by Act of Parliament charged to see the execution of if not of others too yet of one especial Ecclesiastical Law for their care wherein some of them have been well-nigh ruined that is that according to that Act of Parliament 1 Eliz. c. 2. For uniformity of Prayer and Administration of Sacraments every person should diligently and faithfully resort to their Parish Church or Chappel where Common prayer and such Services of God shall be used upon every Sunday and other dayes ordeined and used to be kept as Holy-dayes and then and there to abide orderly and soberly during the time of Common prayer Preaching or other Service of God to be used and ministred c. Then follows thus And for due execution hereof the Queens most excellent Majesty the Lords Temporal and all the Commons in this present Parliament assembled doth in Gods name earnestly require and charge all the Archbishops Bishops and other Ordinaries that they shall endeavour themselves to the utmost of their knowledge that the due and true execution hereof may be had throughout their Dioceses and charges as they will answer before God for such evils and plagues wherewith Almighty God may justly punish his people for neglecting this good and wholsome Law Who would think had we not sadly felt their designs that the great Magnifiers of Parliaments for which I discommend them not so they keep within due compass would have been so bitter against those that acted but according to these strict Parliamentary charges CHAP. III. The Heads of the several Chapters in that Apologie of Doctor Cosens Part 1. C. 1 THe particular distribution of causes proved to be of Ecclesiastical cognizance besides Testamentary and Matrimonial With a discourse of C. 2 Bishops Certificates against persons excommunicated being a special point of their voluntary Jurisdiction where there is no party that prosecuteth C. 3 That matters in the former Chapter adjoyned to Testamentary and Matrimonial causes though properly they be not of Testament or Matrimony are of Ecclesiastical cognizance and how far C. 4 General proofs out of Statutes that sundry other causes besides Testamentary and Matrimonial are of Ecclesiastical cognizance C. 5 That Suits for Tithes of Benefices upon voidance or spoliation likewise that Suits for Tithes Oblations Mortuaries and Pensions Procurations c. are of Ecclesiastical Jurisdiction is proved by Statutes especially C. 6 That Suits for right of Tithes belong to the Ecclesiastical Jurisdiction and how far is shewed out of the books and Reports of the Common Law so of places of Burial and Church-yards and of Pensions Mortuaries Oblations c. C. 7 Of right to have a Curate and of Contributions to Reparations and to other things required in Churches C. 8 Proofs in general that sundry crimes and offences are punishable by Ecclesiastical Jurisdiction and namely Idolatry Heresie Perjury or Laesio fidei and how far the last of these is there to be corrected also of disturbance of Divine Service or not frequenting of it and neglect of the Sacraments C. 9 That Simony Usury Defamation or Slander beating of a Clerk Sacrilege Brawling or Fighting in Church or Church-yard Dilapidations or waste of an Ecclesiastical Living and all Incontinency are punishable by Ecclesiastical authority and how far C. 10 Several other matters reckoned in this tenth Chapter as ordeining of real Compositions and disannulling of them suspension ab ingressu Ecclesiae c. Interdiction of a Church Sequestration Excommunication Parish-Clerks fees Goods due to a Church deteined Blasphemy Idolatry Apostasie from Christianity violation and prophanation of the Sabbath Subornation of Perjury Attestation of a womans chastity Drunkenness filthy speech violation of a Sequestration or Induction hindering and disturbance to carry away Tithes enjoyning of Penance corporal contempt of obeying the Decrees of the Ecclesiastical Judge Fees due in Ecclesiastical Courts Curates and Clerks wages Forgery in an Ecclesiastical matter as of Letters Testimonial of Orders of Institution burying of excommunicate persons communicating with excommunicate persons frequenters of Conventicles digging up of Corps buried and generally for any matter Ecclesiastical indefinitely by the Articuls cleri may be cited All these are of Ecclesiastical Jurisdiction and proofs that any Subjeet Lay or other may be cited in any cause Ecclesiastical C. 11 That Lay-men may be cited and urged to take Oaths in other causes then Testamentary and Matrimonial C. 12 The grounds of the opinions to the contrary examined and confuted C. 13 That judgment of Heresie still remaineth at the Common Law in Judges Ecclesiastical and that the Proviso touching Heresie in the Statute 1 Eliz. 1. is onely spoken of Ecclesiastical Commissioners thereby authorized C. 14 That by the Statute Her Majesty may commit authority and they may take and use for Ecclesiastical causes Attachments Imprisonments and Fines Herein he writes also how the Law was at that time C. 15 That an Ecclesiastical person may be deprived of his Benefice without indictment or prosecution of party C. 16 That after forty dayes an excommunicate person may be otherwise punished then upon the Writ De Excommunicato capiendo and that the said Writ may and ought to be awarded
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
upon contempts arising on other causes Ecclesiastical then any of those ten crimes mentioned in the Statute 5 Eliz. 23. C. 17 Of a Prohibition what it is where it lyeth not and where it doth and how it ceaseth by a Consultation and of the Writ of Indicavit C. 18 An Analysis or unfolding of the two special Statutes touching Praemunire with sundry questions and doubts about that matter requiring more grave resolution Then in the second part of his Apology the Doctor sets forth his Proofs together with his Answers to the objections made against the manner of practice of Jurisdiction Ecclesiastical by those that oppugn it C. 1 Of the distinction of Offences and several kinds and ends in punishing them with the necessity of punishments C. 2 Of two sorts of prosecution of crimes and offences viz. by a party and of office the practice of them in Scripture and in the several Courts of this Realm C. 3 Of the sundry kinds of objecting crimes by a party mentioned in the Civil Law as by reason of a mans publick charge and function also by way of Exception Supplication Complaint Delation and Accusation The true signification of the word Accusatio its divers acceptions definition and exposition thereof with some reason of the frequency of Accusation in Courts of the Civil Laws in former times is also declared C. 4 That the prosecution of crimes by way of Accusation is in most places forbidden or grown into disuse The reasons hereof be partly the danger to the Accusers and partly the hatefulness of that course Therein also is disputed whether all Accusation be unlawful and certain points delivered to be observed by all them that will accuse others C. 5 Of the several acceptions of the word Officium the signification of the words Inquisitio Questio crimina ordinaria extraordinaria the reason why enquiry by office came in place of Accusation Of Enquiry in general and special of-Enquiry special Ex officio nobih sive mero mixto promoto and of the privileges of proceeding ex mero officio above the other C. 6 Of Denunciation a special means of stirring up the office of the manifold use thereof on the other side the Sea The general acception of that word and of four kinds of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expences and what course of dealing against crimes and offences is holden both in Courts of the Ecclesiastical Commission and in ordinary Courts Ecclesiastical of this Realm C. 7 That the Civil and Canon Laws allow sundry means to ground a special Enquiry of office against a crime besides Accusation and Presentment therein is also conteined an Answer to a supposed Rule end declared how from general they descend to special Enquiry And that besides those two either a fame or clamosa insinuatio or private judicial Denunciation or Canonical Denunciation or Indicia or taking with the manner or other notoriety of the fact or impeachment by some of the Complices or collusion of the accuser or the not objecting in due time or when the Enquiry tendeth but to a spiritual punishment may severally any of them serve to warrant such enquiry with some observations touching the nature of most of these C. 8 That to proceed sometimes against an offence otherwise then upon Accusation or Presentment or then upon an Appeal or Indictment which two at the Common Law have respective correspondence unto the two former is no diverse much less any contrary or repugnant course to the Laws Statutes and Customs of this Realm This is proved by Common Law Statutes and practice in proceedings informative and punitive with answer to certain objections made to the contrary C. 9 How the second opinion here to be treated of is that no Lay-person may be cited of office in any cause but Testamentary or Matrimonial and that the drift of that opinion is against proceeding of office in matters criminal The necessary use and equity of proceeding somtimes criminally by the Judges office in Courts both Temporal and Ecclesiastical C. 10 Conteineth an Answer to some further objections made against the conveniency and reasonableness of proceeding against crimes of office C. 11 That the Laws of the Realm do use Enquiries and Proceedings ex officio that they allow it in Courts Ecclesiastical with answer to some objections that are made to the contrary C. 12 Is set down a Reply to the Note-gatherers answers given to certain reasons that have been made long ago for to shew the like course to be also practised in Temporal Courts and an answer to his reasons brought to prove that in proceeding of office there is some contrariety unto the Laws of England C. 13 That the Enquiry ex officio against crimes is allowed both in Civil and Temporal Courts and in Ecclesiastical also by the two Laws Canon and Civil C. 14 Conteineth an answer to such objections as upon the Civil or Canon Laws are brought against all proceedings of office in causes criminal by the Treatisor and the Note-gatherer C. 15 Enquiry and proceeding of office without an accuser and grounded upon some other of the means afore proved sufficient to enter into such enquiry is approved by sundry examples of Scripture C. 16 An Answer is made to such objections as out of Scripture or Ecclesiastical Writers be made against criminal proceeding of office by the Note-gather and others In the third part he concludes upon the whole matter for which his Apology was made C. 1 Of the lawfulness of Oaths What an Oath is and the reason or original formal cause of the use of Oaths C. 2 An Answer to certain doubts made concerning oaths as namely why in Scripture God is said to have sworn how by Oath he is said to be called to Witness An Oath no tempting of God but a part of his Worship Why nevertheless some are repelled from taking Oaths Whether Adjuration be lawful After whose meaning an Oath is to be understood Whether every promissory Oath be simply to be kept Whether an Oath may be dispensed with and how far and whether a Christian may by mutual Oaths contract with him that sweareth by false gods C. 3 Division of Oaths according to the outward form of taking them according to the matter and inward form of them with plain description of every kind of Oath C. 4 That the Ceremonies used in taking and giving of corporal oaths with laying hands upon the Bible or Testament and swearing by the Contents of it are not unlawful C. 5 The true issue of the next Opinion in question Two sorts of crimes and offences prohibited In what causes an Oath here spoken of may not be ministred and the manifold convenience and necessity of an Oath sometimes to be ministred in a cause criminal and penal unto the party with some few objections touching inconveniences thereof answered C. 6 That Oaths of men touching
party and sometimes lewd practises and misdemeanours criminal be in the Bill set forth yet must the Defendant make particular answer thereto upon his oath So in the Court of Requests in the Marches of Wales the Court of the Council there and in the North parts so that to the intent of a Defendants being urged by oath somtimes to discover himself in a matter criminal it cometh to as much in these Courts as is challenged for unlawful in Courts Ecclesiastical and the Chancery must needs be the ancientest court of this Realm because from thence all original Writs and commissions do come whereupon the other courts do ground all their proceedings therefore probably as in sundry other points of proceeding there they drew the exacting of the Defendants answer upon oath from the Civil Law For that court of Chancery being here in time and nature the first after the Roman yoke before the coming in of the Saxons was shaked off here it could not take light from other courts of the common Law but from some other that was before both it and them The Romans under whom we were then gave us these Laws most probably so they used as their Histories testifie to most Provinces they subdued Many of the same Laws were taken up and retained by the Saxons especially untill the coming in of the Norman Conqueror who established the customs of Normandy Amongst others they retained till then that Law was one That all brethren should participate alike their fathers Inheritance Cicer sanil ep We read of Trebatius an ancient civil Lawyer often mentioned in the Pandects who lived in Julius Caesars time before our Saviours birth many years did remain at Samarobrina in this Isle of Britain Forcatulus and afterwards that famous Lawyer Aemilius Paulus Papinianus did professe the Law and kept his Tribunal seat at the city of York For the court of Star-chamber and High-commission I mention not the proceedings there because those courts are taken away though as before perhaps the want of them especially if in some things regulated will by many every day be more thought of the proceedings there are in fresh memory to have been in like manner upon oaths in criminal causes In all the courts of Record at Westminster do not the Judges by corporal oath examine any person whom they have cause in discretion to suspect to have dealt falsly about the return of any Writ entry of rule or such like matter not being capital 13 E. 1. stat Winton Men are to be assessed and sworn to have such assessed Armour in their houses a 17 E 2. Prerog Reg. c. 4. The Kings Widows sworn not to marry without the Kings License b 25 E. 3. de serv c. 2 7. Labourers are to take an oath to do the labours appointed c. and if they refuse they are to be put into the Stocks c 27 H. 4. c. 17. Another Statute much to that purpose d 8 H 6.7 The Sheriff may upon oath examine the choosers of Shire-Knights for Parliament e 27 E. 3. stat staple Those that ship over Woolls may be put to their oath by the Mayor c. and several more as 11 H. 7.33 51 H. 3. 27 E. 3.6 23 Eliz 6. c. all which oaths though necessary and equal may bring great damage to the party Other Statutes there are that may tend to make the party discover even matters criminal or penal to himself Stat. de Exen de inquisition supercoronator 14 Ed. 1. The Statute of Inquisition upon Coroners the Enquirers shall make all the Bayliffs swear That they shall well and faithfully do that which they have in charge by the King and his Council and that they shall conceal nothing of it This is general and may be penal to the Bayliff E. 3. stat de mone a c 9. Mayors and Bayliffs in every Port where Merchants and Ships be shall take an oath of Merchants and Masters of Ships that they shall do no fraud against that Ordinance touching Money This may be penal too and to discover their own guilt The Statute 19 H. 7. c. 14. gives authority to divers great persons to examine Defendants informed against for certain offences and breach of Statutes as well by 〈◊〉 as otherwise by their discretion and to adjudge c. In several other Statutes where it is said to examine is meâ—n upon oath otherwise it could not be so understood of the Witnesses as 18 E. 42. 11 H. 7.23 19 H. 7.14 3 H. 7.1 21 H. 8.10 5 Eliz. 9. 24 H. 8.6 Vintners put to their oaths whether they keep their wine to sell by retail or in grosse 34 H. 8.4 Concealers of Bankrupts goods to be examined upon oath c. 5 Eliz. 1. The Lord Chancellor ex officio to give the Oath of Supremacy to whom he thinks fit this may be penal to the refuser 13 Eliz. 3. Such as be supposed to be parties and privy to the fraud used in conveyances by Fugitives over the Seas may be examined upon their corporal oaths c. the refusers to be fined In which as in the other Statutes it is evident that it may many wayes happen that such oaths may tend to the urging them to discover matters criminal and penal to themselves that are appointed to take them and the four last alledged concern oaths given where neither Bill nor yet Information is preferred against the parties examined and therefore to be tendered more then ex mero officio In matters that induce damage to him that sweareth there be sundry examples at the common Law one or two may suffice T. 25 E. 3. fol. 44. A woman covert Baron being to acknowledge a Fine if it be doubted whether she be 21. years of age she shall be examined upon her oath P. 3 H. 6.38 In an Action of Detinue of goods the Plaintiff was examined where they were delivered H. 3 H. 6.30 A Plaintiff examined where an Obligation which he pleaded was made Sheriffs Stewards of Liberties Reeves Bedel of Strayes and Waifes Rent-gatherers c. or other Accomptants to the Prince or other great Lord are usually urged to their Accompts upon their oaths this may be penal and ignominious to them Stamford Pleas of Crown l. 3. c 14. M. 34 E. 3. fol. 3. In an Appeal of murther as before the defender must before battail swear his innocency One sworn of a Jury and departing from his fellows and returning was by the Judges ex officio examined upon his oath whether he had talked with the Defendant T. 7 H. 4. fol. 19. A Tenant of Land was examined by the Judges whether he confessed the Action of the Demandant by covin which was found P. 9 H. 5.1 A woman that brought an Appeal for the death of her husband but supposed by another name then she had indeed was hereupon examined H. 35 H 6. Fitz H. Abridg
refuse an oath nor after it is taken to break it 1. Not to refuse it Solomon wittingly and prudently laid an oath upon Shimei to the loss of his liberty that he should not go beyond Cedron and he lawfully laid this oath on him and when afterwards Shimei having sworn not to pass these bounds yet did it he lost his life for it and justly not onely for passing beyond Cedron but for the violation of his oath 1 Kings 2.43 What would you have even prophane Shimei refuses not an oath though to the loss of his liberty Nor Micheas who by the King was bound up under the Religion of an oath neither was that once onely or that the first time but it had been done sometimes before when he was free refused but being sworn refused not but answered though his certain punishment was before his eyes though for his answer he was to be sent to prison 1 Kings 22.16 By which example it appears as well that it was then the custom in Israel to take an oath to answer as also that the Prophet Micheas durst not perhaps he was ignorant of Gods Law in that point do as we do now-a-dayes either covenant that the oath shall not entangle us or endanger our liberty or if that may not be granted then to use Tergiversation 2. Not to break the oath That is as the principal argument if it may lawfully be performed for except it be so rightly saith St. Augustine Justice breaks unjust bonds I hope the Magistrate shall not have less power then every one of the vulgar and every private person every of them have at least that small power If he be sworn to his loss yet he must not change in that he hath promised to his neighbour Psal 15.4 and if not his promise to his neighbour then not to the Magistrate by a better right sure or equal at least What then even prophane Esau revoked not his oath though it was to the loss of his Inheritance But that private men once for all may know under what Law they are in this case it is not lawful no not for a King to do it Zedekiah took an oath to his loss and as at the first view it seems even as well to his own slavery as the slavery of his people Ezek. 17.13 he changed but God both detested and revenged that fact of his Nor is it lawful for a Commonwealth so to change The Common-wealth of Israel made a League with the Gibeonites and swore to it and this was contrary both to their profit and the publique command of God Joshua Josh 9.15 though not fit to have it chang'd and he thought right The same oath Saul afterwards presumed to change though he did it in zeal towards Israel yet that was expiated first by the danger of the loss of his Kingdom and afterwards by the cutting off his posterity 2 Sam. 21.2 Therefore this is not lawful for a King a Commonwealth nor a private man to do Now I conclude So be it there be not danger of loss of life in it in matters and causes which are punished either by pecuniary Mulcts or by imprisonment it is lawful for the Subject to undergo that oath and for the Magistrate to require it But in this point is much doubting this Oath how far it is lawful and in what manner and case Which whilest I treat of all my action is as they call it the pursuing of the Judicial proceedings by which it may be known at length in which way we may go where we may go no further and hereof I see three parts as far as concerns our purpose which are thus designed in holy Writ 1. The admission of the suit or complaint as the Hebrews call it that is the entrance of the cause into judgment out of Isaiah 1.23 St. Paul calls it receiving an accusation 1 Tim. 5.19 The second is the state and position of the cause that is the foundation of the suit or complaint as the Hebrews give it the name out of Deut. 19.13 The Greeks call it the matter to be judged and determined St. Paul if I be not deceived sayes it is an end of strife Heb. 6.16 The third is Inquisition upon the proofs that is as the Jews call it a Pervestigation or sifting of the suit or complaint out of Iob 29.16 the Greeks call it a Structure of the cause St. Paul calls it a confirmation Heb. 6.16 for with the fourth which all men call the Sentence I have nothing to do Therefore these three things are to be in all Judiciary proceedings That the party ought to be lawfully questioned after that the state of the cause then the proofs are to be looked into And in the first part there is no use of an oath that I know or have read of yet that I should enquire hereof some mens error makes me do it which error I shall lessen this day if it may be done who think themselves not sufficiently accused nay they think they shall accuse themselves except an accuser step forth and shew himself and who falsly and rashly suppose and yet the suppose it that that oath which is required of them for the stating of the cause that is the second part that is to be required to the first part this is the admission of the suit or complaint So I propose it thus In every suit or complaint the matter either is so apparent as that it is manifest as well concerning the fact as the person whether the person be deprehended in the deed doing that is as they say taken in the manner as she was Iohn 8.4 Or so with an high hand or as we use to say with a notorious boldness as attempted before the Magistrate and all the Congreation as was Zimri's wickedness Numb 25.8 In which cases so openly acted there was no need of accuser or witness or if it be so that the fact is manifest but the person is unknown as in the dead body found but the murtherer is not known Deut. 21.1 or the person is known but the fact unknown as in Achans case Josh 7.18 In which matter so controverted a man may by the judgment of the Divine Law be called into question four manner of wayes For either one may be brought forth upon some signs oâ— presumptions as in that first piece of Gods justice which all humane justice imitates it was done against Adam without an accuser onely upon signs and presumptions that is that he fled and hid himself amongst the Trees a sign of a guilty mind Gen. 3.8 In the second piece of justice against Cain that likewise was upon signs and presumptions that is Abel appearing no where effusion of bloud being found Cains anger or envy towards Abel foregoing it Gen. 4.6,10 This is the first manner The second is Or one may be brought forth upon the impeachment of another as in that very first piece of justice Adam onely was cited but he being questioned as
much as to give an Oath yet how often did they then upon small matters unworthy of their cognisance in regard they might have been so easily remedied by the known ordinary Laws of the Land and the ordinary competent Judges thereof call orthodox conformable and worthy Ministers to appear before them from very distant remote places sometimes near upon 200. miles for setting a rail about the Communion Table according to the command of the Ordinary or matters of such inferiour nature these brought on and fomented by Inconformists then to the great mischief to this Nation too too much favoured promoted and prosecuted by the then prevailing power The Fees and charges were then very high insomuch as some Ministers were almost if not altogether undone before they could get up thither and when they came by reason of multiplicity of businesse in the Commons House they staid there long and upon great charge paying high Fees still to the Serjeant or other Officers of the House whilest they lay under restraint which oftentimes was very long When a charge after long delay was given in then they gave their answer after a long stay too Then a Committee of many Members was appointed to examine witnesses which was done without oath then after a long time the cause was reported many of these Members not having heard the whole cause but some one part some another yet often concurring at the voting and reporting the cause to the House of Commons which was a strange kind of proceeding to call it no worse In the Star-chamber and High-commission none used to give sentence but such as heard all the cause and they usually excused themselves when they had not heard all the cause Now when the House of Commods had proceeded thus far upon the matter yet they had done little or nothing but vexed and undone a poor and perhaps guiltless Minister for they were to transmit the cause to the Lords House and there to begin it de novo examine the witnesses again upon oath which as before the other House could not do And here 't is to be considered whether or no it were not anceps perjurium a dangerous temptation to witnesses that perhaps have spoken too largely being unsworn will if but for fear of loss of Reputation confirm upon Oath what they have said without Oath It is to be feared also some poor men foreseeing this unevitable course of undoing them have either wronged their owne cause and betrayed their innocence by confessing themselves guilty or ad redimendam vexationem compounded with their prosecutors even to their own undoing or well nigh If there had been cause and that it could not properly in an ordinary way have been remedied by the proper competent ordinary Judges why should not the cause have been begun heard and determined in the Lords House at first Could the Houses especially the Commons House then have been brought into such due order as not to act extra spheram activitatis suae 't is well to be hoped they would not as above have been desirous to lengthen or perpetuate that Parliament when they can as by right repeal no old nor make no new Law nor tax the Subjects estate nor make Ordinances to have the force of Laws without His Majesties assent King Henry the Eighth suffered the Houses of Parliament in Ireland for a matter of two years or thereabouts to continue petitioning him to dissolve them and dismiss them home which he would not do till he saw cause Though this is not in his commendation yet hereby the just power of the King appeared and the right of his Prerogative which hath been too long and too much trampled upon And surely the Law in this point is the same in Englaud as in Ireland that the just bounds and limits on all sides might be preserved inviolate Touching the Age of Parliament-men Age of Parliament-men In the Lords House none sit there under 21. years of age and some wish none might under 30. though there they are singly for themselves and represent not others as in the House of Commons But in the House of Commons there hath been sometimes as was in the Long Parliament Members about 16. or 17. years of age if not some of them under and their Suffrages and Votes were of as much force as the eldest most experienced in the House And it hath been the observation of some experienced and wise Parliament-men that oftentimes in that House those that had the shortest wings were the highest flyers and such as these could adde number and so consequently weight to a side The inconvenience and hurt that arose from hence is easily demonstrable and hath too much appeared by frequent experience Some have wished that there should have been no Member of the Commons House under the age of 30. years there being so large a field whereout to choose Parliament-men for every place and it being even as it were ex diametro contrary to the nature and denomination of a Parliament which is but a great Senate so called à Senioribus the constituting Members thereof Touching the Election of Parliament-men Election of Parliament-men Some have advised that it should be clearly free without such ambient means as were used in the Long Parliament by some Factions and whereas every man may give his suffrage for Counties that hath 40 s. per annum and in Cities and Corporations without such a value that being the old custom And that which was 40 s. per annum in former Ages is worth now ten times as much well nigh if not more So consequently the Electors should be of better estate The great number of Burroughs Corporations There being such a vast disproportion betwixt the Cities alwayes excepting London and Corporations Burroughs especially and the Counties wherein that Burrough and Corporation is scituate for number of Inhabitants which heightens the concernment In some Counties there being so many Corporations that the County having but two Parliament-men to represent them be the County never so great yet every petty Corporation whereof in many Counties especially in the West there are very many such hath as many to represent it of equal power in the Commons House with any other Member of County or City So that the Parliament-men serving for Cities and Burroughs are in number by many degrees far much more then for Counties which hath been conceived to have been no small cause of our late troubles Some advised for that reason and for other reasons too well known notorious and obvious to every indifferent eye that the number of these Burroughs should be much lessened or at leastwise that power of Electing Parliament-Members Especially so many of these Corporations Cities and Burroughs having in these late troubles so clearly forfeited their Charters Touching the manner of proceeding in Parliament in the Commons House in the Long-Parliament It hath been ordinarily observed as is touched above that in Committees in that Long-Parliament some have
matters damageable criminal and penal to themselves are urged and acted by Temporal Courts and by the Laws of this Realm C. 7 Wherein are contained Answers to such Objections and Reasons as be made for proof of a contrariety or repugnancy in these Oaths unto the Statutes Laws or Customs of this Realm and a Reply to the Treatisours Answers made unto certain Objections supposed likely to be made in justification of this kind of Oath by the Temporal Laws C. 8 That ministring of such Oaths is by the Law of the Realm allowed unto Judges of Ecclesiastical Courts and some few Objections made to the contrary answered C. 9 That such Oath touching a mans own crime is allowed both by the Canon and Civil Laws how far and in what sort and that the like is establish'd and thought equal by the Laws and Customs of sundry other Nations as well ancient as modern C. 10 An Answer to some Objections pretended to be made against this kind of Oath from the Laws Civil and Canon C. 11 That not only such an Oath may be taken but also being by Magistrates duly commanded ought not to be refused is approved by Scriptures by practice of the Primitive Church and of late times together with a Reply unto certain Answers made unto some proofs here used C. 12 An answer unto such Objections as be pretended to be gathered from Divinity Divines and from the examples of godly men against ministring Oaths unto parties in matters of their own crimes C. 13 Four several opinions of the Innovators against the parties taking of an Oath in criminal causes with Answers also unto their Reasons and Objections C. 14 That a man being charged by authority to discover his knowledge touching some offence which his Christian brother is supposed to have done is bound to reveal it though it may breed trouble and punishment to his broaher and the Reasons to the contrary are answered and refuted C. 15 Their Arguments are answered that condemn the ministring and taking of an Oath as unlawfull because they have not distinct knowledge given unto them of every particular before the taking of it and the like course by Examples is upproved lawful and godly C. 16 That after the party hath answered upon his Oath it is neither unusual unlawful or ungodly to seek to convince him by Witness or other trial if he be suspected not to have delivered a plain and full truth and somewhat also in approbation of Canonical Purgation with answers to the Treatisors Objections against them CHAP. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A Summary relation of what Doctor Cosens in his Apology hath asserted and made good by Gods word the practice of the Primitive Christians the opinion of the Fathers the Laws Canon and Civil and the Laws of the Land allowing and warranting them The like practice at Common Law and at Geneva and other places pretending strict Reformation AS to the proceeding Ex officio or otherwise in the Ecclesiastical Courts according to Law and the due former practise nothing in that late Act is said against it and theresore implicitly at least it is allowed and approved Rati habitio mandato aequiparatur 't is a Rule of Law The Law in that case remains at it was before nothing need be said in justification thereof but only as touching the Oath Ex officio or other Oath not to be administred as there and touching Purgation Touching the Proviso's in that late Act that which forbids Ecclesiastical Judges to exercise any power c. as there and that other Proviso that forbids them to tender or administer unto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment I say touching the former Proviso he hath I conceive given full satisfaction in that his Apology in answering to the objections made in his time thereabout Therein also he clearly and fully justifies the proceedings of Ecclesiastical Courts in general and particular cases And to that other Proviso touching the Oath Ex officio or any other Oath and touching Purgation as in that Act I humbly conceive salvo meliore judicio he fully and clearly evinces it that the saw and practice thereof was just to tender and administer the Oath ex ofâ—icio or at the instance of a party for the finding out of Simony Adultery and other crimes and deeds of darkness 〈◊〉 mae probationis so 〈◊〉 evil may be removed from the â—…nd Alwayes provided that there was just cause for the Ecclesiastical Judge so to tender and administer that Oath that is that there was before such oath was so administred or tendered to any party due proof made of a common fame that the party was guilty of such crime touching which such oath was to be administred or at least there was as in some cases denunciatio Evangelica or canonica or insinuatio clamosa or other sufficient indicia praesumptionis or suspicionis to induce the Judge to tender that oath and so the practice alwayes was and if it ever was otherwise as I believe that will scarcely be proved it ought not to have been He sets down the due cautions that ought to be had when it is very probable that the person to whom that oath is tendered will forswear himself then to forbear it and that in capital crimes to the danger of loss of life or limb it is not the practice in any Courts to administer such oath for that very fear of Perjury it being too much to be feared that too too many would rather forswear themselves then endanger either life or limb though in some places of Scripture it appears that even in such cases such oaths have been administred The Father of lies could speak truth in such a case Skin for skin or rather as some learned in the Hebrew would have it Job â— 4. Skin after skin and all that a man hath will he give for his life There also he shews the weakness and inconcludency of that vulgar Saying Nemo tenetur seipsum prodere or accusare being indeed the trite and general objection That a man is not properly said to betray or accuse himself when as publick fame or other sufficient indicia presumptions or suspicions have accused him these are instead of the accusers and it seems dis-ingenuous at least in those especially that pretend to Learning and have or might have examined the Canons and Ecclesiastical Laws in that point to urge one piece of a sentence and leave out the rest where they found or might have found that sentence Nemo tenetur seipsum prodere or accusare they did also or might have found that which follows in that