were in agitation and some then passed and some stayed supposed that they will be resumed and considered of at the next meeting of Parliament that I say this Act should not stay as some would have had it till that next meeting but rather pass now though with these Proviso's on it I can say no more then this that Certa incertis praferenda if they could not have all they would have yet to have something that in a manner wanted all was but reasonable prudence it had perhaps savoured of morosity to have done otherwise especially considering that those that have long fasted would be glad to eat though I hope these that administred this food to them did not fear they would as hungry men use to do feed too fast to their hurt not to their nourishment and therefore did set the less meat before them but upon a pause after this refreshment there may be a supply Neither need I humbly conceive any thing that is already done hinder the review or alteration of this Act in that point For it is no new thing nor discommendable but contrary to make Laws upon present reasons or emergencies and yet upon future accidents or contingencies and variation of the times and occasions and other necessary requisites which could not well be foreseen at the making of these Laws nor perhaps dreamt on till they happened to alter change or repeal the former Hereof many instances might be given but in so plain a case I shall mention but one and that in a matter of Ecclesiastical cognisance touching Precontracts of Matrimony in 32 H. 8. c. 38. 32 H. 8. cap. 38. What Marriages are lawful and what not WHereas heretofore the usurped power of the Bishop of Rome hath alwayes entangled and troubled the méer jurisdiction and regall power of this Realm of England and also unquieted much the subjects of the same by his usurped power in them as by making that unlawfull which by Gods word is lawfull both in marriages and other things as hereafter shall appear more at length and till now of late in our Soberaign Lords time which is otherwise by learning taught then his predecessors in times past long time have béen hath so continued the same whereof yet some sparks he left which hereafter might kindle a greater fire and so remaining his power not to seem utterly extinct Therefore it is thought most convenient to the Kings Highness his Lords spirituall and temporal with the Commons of this Realm assembled in this present Parliament that two things specially for this time be with diligence provided for whereby many inconveniences have ensued and many moe else mought ensue and follow as where heretofore divers and many persons after long continuance together in Matrimony without any allegation of either of the parties or any other at their marriage why the same matrimony should not be good just and lawful and after the same Matrimony solemnized and consummate by carnal knowledge and also sometime fruit of children ensued of the same Marriage upon pretence of a former contract made and not consummate by carnal copulation for proof whereof two witnesses by that Law were onely required béen divorced and separate contrary to Gods Law and so the true Matrimony both solemnized in the face of the Church and consummate with bodily knowledge and confirmed also with the fruit of children had betwéen them clearly frustrate and dissolved Further also by reason of other prohibitions then Gods Law admitteth for their lucre by that Court invented the dispensations whereof they alwayes reserved to themselves as in kindred or affinity betwéen Cousin-germans and so to the fourth and fourth degrée carnal knowledge of any of the same kin or affinity before in such outward degrées which else were lawful and be not prohibited by Gods Law and all because they would get money by it and kéep a reputation of their usurped jurisdiction whereby not onely much discord betwéen lawful married persons hath contrary to Gods Ordinance arisen much debate and suit at the Law with wrongful vexation and great damage of the innocent party hath béen procured and many just marriages brought in doubt and danger of undoing and also many times undone and lawful heirs disherited whereof there had never else but for his vain-glorious usurpation béen moved any such question since fréedom in them was given by Gods Law which ought to be most sure and certain But that notwithstanding Marriages have béen brought into such an uncertainty thereby that no Marriage could be surely knit and bounden but it should lye in either of the parties power and arbiter casting away the fear of God by means and compasses to prove a precontract a kindred and aliance or a carnal knowledge to defeat the same and so under the pretence of these allegations afore rehearsed to live all the dayes of their life in detestable Adultery to the utter destruction of their own souls and the provocation of the terrible wrath of God upon the places where such abominations were used and suffered Be it therefore enacted by the King our Soveraign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same That from the first day of the Moneth of July next coming in the year of our Lord God 1540. all and every such Marriages as within this Church of England shall be contracted betwéen lawful persons as by this Act we declare all persons to be lawful that be not prohibited by Gods Law to marry such being Marriages contracted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had therein betwéen the parties so married shall be by authority of this present Parliament aforesaid déemed judged and taken to be lawful good just and indissoluble notwithstanding any Precontract or Precontracts of Matrimony not consummate with bodily knowledge which either of the parties so married or both shall have made with any other person or persons before the time of contracting that marriage which is solemnized and consummate or whereof such fruit is ensued or may ensue as afore and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise And that no reservation or prohibition Gods Law except shall trouble or impeach any marriage without the Levitical degrées And that no person of with estate degrée or condition he or she be shall after the said first day of the Moneth of July aforesaid be admitted to any of the Spiritual Courts within this the Kings Realm or any his Graces other Lands and Dominions to any processe plea or allegation contrary to this foresaid Act. Rep. 1 2 P. M. 8. Rep. 1 El. 1. This Act was not many years after repealed as followeth 2 3 Ed. 6. cap. 23. Part of the Statute of Precontracts repealed Whereas in the two and thirtieth year of the reign of the late King of famous
memory King Henry the eighth because that many inconveniences had chanced in this Realm by breaking and dissolving good and lawful marriages yea whereupon also sometime issue and children had followed under the colour and pretence of a former contract made with another the which contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the marriage which they liked not and to be coupled with another there was an Act made that all and every such marriages as within the Church of England should be contrcted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had betwéen the parties so married should be by authority of the said Parliament déemed judged and taken to be lawful good just and indissoluble notwithstanding any precontract or precontracts of Matrimony not consummate with bodily knowledge which either of the persons so married or both had made with any other person or persons before the time of contracting that marriage which is solemnized or consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly appear Sithence the time of the which Act although the same was godly meant the unrulinesse of men hath ungodly abused the same and divers inconveniences intolerable in manner to Christian ears and eyes followed thereupon women and men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the contract of Matrimony they might have whom they more favoured and destred they could be contented by lightnesse of their nature to overturn all that they had done afore and not afraid in manner even from the very Church door and Matriage feast the man to take another spouse and the espouse to take another husband more for bodily lust and carnal knowledge then for surety of faith and truth or having God in their good remembrance contemning many times also the commandment of the Ecclesiastical Iudge forbidding the parties having made the contract to attempt or do any thing in prejudice of the same Be it therefore enacted by the Kings Highnesse the Lords Spiritual and Temporal and the Commons in this present Parliament assembled that as concerning Precontracts the said former Statute shall from the first day of May next comming cease be repealed and of no force or effect and be reduced to the estate and order of the Kings Ecclesiastical Laws of this Realm which immediately before the making of the said Estatute in this case were used in this Realm so that from the said first day of May when any cause or contract of marriage is pretended to have béen made it shall be lawful to the Kings Ecclesiastical Iudge of that place to hear and examine the said cause and having the said contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding solemnization cohabitation consummation and tractation as it becometh man and wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the Kings Ecclesiastical Iudge by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never béen made any clause article or sentence in the said Statute to the contrary in any wise notwithstanding Provided alwayes and be it enacted that this Act do not extend to disannul dissolve or break any marriage that hath or shall be solemnizated and consummated before the said first day of May next ensuing by title or colour of any Precontract but that they be and be déemed of like force and effect to all intents constructions and purposes as if this Act had never béen had ne made any thing in this present Act notwithstanding Provided also that this Act do not extend to make good any of the other causes so the dissolution or disannulling of Matrimony which he in the said Act spoken of and disannulled But that in all other causes and other things there mentioned the said former Act of the two and thirtieth year of the late King of famous memory do stand and remain in his full strength and power any thing in this Act notwithstanding Stat. 1 Eliz. 1. By these the inconveniency appeareth of taking away or altering an ancient long-settled Law practised long in all Christian Countries as this was which had it not been good probably the inconveniency and hurt of it had appeared in so long a time and the Law for the Oath Ex officio and Purgation is of like antiquity and practice in all Christian Countries without inconvenience or hurt thereby arising as yet that I ever could hear of therefore such Laws ought to be deeply weighed and considered of before they be repealed or altered And now that I am speaking of repealing and altering old Laws and making new I thought fit to close this Tract with some Notes of mine drawn up almost all of them in the time of the usurped Government and some after His Majesties restauration and communicated to the sight of some of Quality touching the repealing or altering of some old Laws and making new Some are already past and effected as that for the Lords the Bishops sitting again in the Lords House in Parliament and other things These I offer with all humility to be considered of if it shall by those in Authority be thought fit otherwise to be as unsaid Protesting that I retract as before any thing which is here mentioned that shall appear contrary to Gods Word His Majesties Prerogative or the Laws of the Land or the just policy and government of any of His Majesties Dominions Touching Parliaments Parliament proceedings AS a Parliament well constituted and acting regularly conduces much to the happinesse of King and Subject so any exorbitancy or deviation therein of which surely all unbiassed men cannot but confesse we have had too much sad experience in the Long Parliament works the contrary corruptio optimi pessima In the time of the Long Parliament some as it were idoliz'd it even almost to an opinion even of Infallibility of which they have made too much advantage to the misery of King and People Some advised then that that great Wheel that great Court should have had its sphere of activity it s known certain bounds publickly declared and not have been like a great River prodigiously overflowing all its banks and bounds Such a Parliament acting regularly is' t not probable the Members thereof would not so much have thirsted to lengthen much lesse to perpetuate it They were called up to consult may not he that calls his Counsellor forbear consulting him when he pleases and dismisse him Ordinance of Parliament The extent of an Ordinance of Parliament having by some been tentor'd then even almost to Infinity might it not have been precisely circumscribed and the exact definition of an Ordinance given Privileges of Parliament As
also the just privileges of Parliament explicitely have been made known that the Subject might not then have sworn or promised or protested to have maintained and observed them and yet could not possibly know what they were That due care should have been taken that they might have been observed and kept inviolable on all sides neither diminished nor scrued too high and both the Members of the Houses and the People to have had their just rights entire and for this purpose that that Protestation then put in by the The Bishops Protestation Lords Spiritual the Bishops with their Petition to have the force removed that kept them from the Lords House should have been well consider'd on and the right of Protestation in Parliament declared and maintained being a great privilege And whether after a just Protestation unjustly rejected and the Members kept out of the House by force that so protested and petitioned whether the other Members could then have proceeded further in the House In the late Kings time in the beginning of his Reign when the Earl of Arundel was imprisoned in the Tower about his sons marriage of the Duke of Lenox's daughter being of the Bloud Royal without the Kings consent the Lords would do nothing in their House till he was restored in regard he was committed onely for a misdemeanour and neither for Treason Felony nor breach of peace in which cases they then confessed a Member of Parliament in Parliament time might be kept prisoner The King none of the three Estates And the Lords Spiritual being one of the three Estates as 1 Eliz. 3. and elsewhere and the King being none of the three Estates the contrary whereof hath been falsly held but the Head and the Lords Spiritual and Temporal and the Commons being but Members and further the Lords Spiritual being one of the greatest Estates of the Realm as 8 Eliz. 1. Some doubted whether one of the Estates can destroy another and whether that come not near the contradicting that Axiom that the Parliament cannot be Felo de se whether that concerns not the Lords Temporal and Commons as well as the Lords Spiritual As for His late Majesties assent 't is known how far the prevalent power in both Houses then carried that and other things too to the misery of the Kingdom Who knows not in what condition the King then was forced to flye by reason of the tumults from Westminster to remoter places And as touching that Act of Parliament for their expulsion out of the Lords House it is not to be forgotten that when it was first brought into the Lords House it was rejected and ought not to have been brought in again that Session yet afterwards it was contrary to the order and course of Parliament brought in again when a great part of the Lords were absent if not upon just fears frighted out of the House and it being scarce safe for the King to deny them any thing in that dangerous condition he was then in As also that such Concessions or Acts as then contrary to the Kings free will were wrested from the King were not to be accounted legal or good or valid whereof several instances may be given heretofore of such and amongst the rest one 15 E. 3. the King then yielded to and granted certain Articles pretended at least to have the form of an Act or Statute of Parliament expresly contrary to the Laws of the Realm and his own Prerogative to which he had assented to eschew the dangers which by denying the same were like to follow in the same Parliament it was repealed in these very words following It seemed good to the said Earls Barons and other wise men that since the Statute did not proceed of our good will the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void c. And perhaps it deserves to be thought of how far in this case that Act of 42 E. 3. c. 1. reaches where it is set down that the great Charter should be kept in all points and if any Statute be made to the contrary it shall be holden for none And one especial Law in that Charter is for the preservation of the rights and liberties of the Church whereof this of the Lords Spiritual their liberty of sitting and voting in the Lords House is a known special liberty and privilege and most ancient Proceedings of the House of Commons If we look back to the Long Parliament was it not fit that that House of Commons should have been justly regulated to act no further or otherwise then according to their just power and the Commission and Summons by which they were called which Commission or Writ of Summons is the foundation of all power in Parliaments as it is well expressed by the Lords and Commons assembled at Oxford Declaration of the Treaty p. 15. What fearful exorbitances have been that way the more sad it is to remember the more care ought to be taken to prevent it for the future The House of Commons in former times being desired by the Lords Honse to consult with them de arduis regni negotiis to which the Lords are called and the House of Commons remembring their call and commission ad consentiendū hiis quae tunc ibidem c. as in their Writ of Summons humbly referred it back to the Lords as matters too high for them And it may seem against the honour and gravity of Parliaments or either House as also to the grievance of the Subject for both or either House or the Committees of either of them as in the Long Parliament to trouble themselves with matters of very small or inferiour nature much below them and in cases where the Law hath sufficiently provided remedy and is still in force to be executed by the proper Judges Were it in making new Laws thereabouts that ought to be so but I mean in making orders about the execution of such Laws which properly belong to the ordinary Judges thereof and are usnally executed by them especially touching inferiour matters it look'd then in that Long Parliament as though they would have swallowed up all other courts and made a kind of Justitium in them during the time of their Session such as medling with the appointing of Churchwardens and such like petty matters The late Long Parliament deviated much especially the pretended House of Commons then to omit as being too notoriously deplorable the Iliads of miseries this poor Nation hath thereby undergone besides that horrid one of the murther of our late King of ever blessed memory King Charles the first acted by a pretended House of Commons Was not that then too frequently practised worthy then of reformation that is the judiciary power being in the Lords House and the Commons House having power onely over their own Members in some cases and not having power so
proceedings touching them which in the late Usurpation were out of all places brought to London and no Record thereof in the County or Diocese where the deceased dyed so that the Subject is put to great trouble and charge sending to London when he hath occasion to use any of them and may be forced to sue at London when he would recover his right thereupon That all such Wills Inventories Bonds Accompts and all other proceedings concerning the same or true copies thereof to be made valid and authentick by Act of Parliament be transmitted at the charge of the Register at that time into the Registry of the Bishop of that Diocese where the party deceased dyed or had his principal mansion or dwelling house at the time of his death or rather in regard of the largenesse of some Bishops Dioceses including many Archdeaconries and many Counties they should be so transmitted into the respective Registries of every Archdeacon or Commissary of the said Archdeaconry and that every person concerned may sue for their right thereupon before the Bishop of the Diocese or his Chancellor or such Commissary or Archdeacon or his Official During the late troubles the Episcopal and Archidiaconal power having been de facto abolished or suppressed the Subjects have been forced to their great charge and trouble to prove all Wills and take Administrations c. at London before Commissioners or pretended Judges there for proving of Wills and granting of Administrations c. Degrees of Marriage That the Act of 32 H. 8. about the prohibited degrees of Marriage be by Act of Parliament explained Traytors heads That the late Traytors Heads and Quarters of the Murtherers of our late Soveraign of blessed memory and the others that are set upon wooden stakes should be set upon Iron pikes or stakes as Piercy and Catesby's Heads were upon the Parliament House Touching the suppressing of all Books and Writings published against the Regal Rights or the Right of the Subject About the suppression of seditious books SOme have advised if it be thought sit that a most choice and able Committee be appointed to enquire after all Books and Writings whatsoever which have spoke against the Regal Right or the Right of the Subject that they may as many as can be got either be purged or burnt and declared against by Authority and not remain as apt fuel for a new flame but be buried as far as can be in perpetual oblivion And perhaps in the first place as most pestilent those Tracts that have been writ about that ridiculous contradiction in adjecto of the two Houses coordination with the King the Monarch when as before is specified the King is the Head the Lords Spiritual and Temporal and the Commons the three Estates by several Acts of Parliament specified Lippis tonsoribus notum yet urged for designs mischievous abominably as we have felt Spensers Treason As also that trayterous distinction of the Spensers 'twixt the Kings Person and Office by two Acts of Parliament declared Treason yet in these late times maintained by too many Goodwins book justifying the murther of the King Goodwins book for the justification of the murther of the late King and many other of that kind Mr. Bucks book of Richard 3. Mr. Bucks book of Richard the third wherein he seems to impugne the right of the King from the daughter of King Edward the fourth wife to King Henry the seventh too much leaning to if not affirming Richard the thirds right by that monstrous Act of Parliament that illegitimates Edward the fourths issue In Sir Edward Cooks book entituled The third part of the Sir Edw. Cooks Writings Institutes of the Law of England concerning High Treasen and other Pleas of the Crown 1658. Printed at London by M. Flesher for W. Lee and D. Pakeman § Le Roy pag. 7. he puts it down there for Law upon the Statute of 25 E. 3. c. 2. De proditionibus That if Treason be committed against a King de facto and non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon granted by a King de jure that is not also de facto is void Strange would have been the consequence of this if Cromwell had been made King as some desired and a loyal man should have killed him in order to the restitution of the true King de jure our dread Soveraign King Charles the second Or should a loyal man for the same end have killed him though he had but de facto non de jure the title of Protector how far would that have extended by the words in the same sect may be considered where he sayes that Statute of E. 3. is to be understood of a King regnant and as follows there and as he sayes most truly a Queen regnant is within these words Nostre Seigneur le Roy for she hath the Office of a King So perhaps it deserves to be examined whether some of note and power in the time of Cromwells Usurpation did not affirm that Cromwell was within these words Nostre Seigneur le Roy. In regard Sir Edward Cooks Writings are by many held in high repute and some have not stuck to style him the Oracle of the Law therefore his Writings require to be more strictly looked into and that if any errors be found therein they may be detected and expunged as being more dangerous then in other mens Writings not of so great repute Corruptio optimi est pessima Illegal and seditious speeches Also it was advised if it shall be thought fit that such Speeches as have been publickly made by any Judges or noted Lawyers upon the Bench or in any publick Assemblies against the Regal or Subjects Right or the Law of Nations which may give just offence to our Neighbours may be taken notice of and publickly declared against Such us that when that Act of 25 E. 3. was alledged to justifie Cromwells Usurpation and that Seigneur le Roy in that Statute included Cromwell the usurping Protector And that speech of a great Lawyer at the tryal of the Portugal Ambassadors brother when it was alledged that he was by the Law of Nations to be sent back cum postulatu to his Master the King of Portugal to be by him punished for his offence committed here and that that Commission for trying him here without the consent of the Portugal Ambassador was the first Commission that ever was granted here to try any Ambassador or his servant without the Ambassadors consent Even the Bishop of Ross Ambassador from Mary Queen of Scotland though she was de facto deposed or forced to renounce the Crown there when he had committed a great offence yet was onely dismiss'd and not further questioned But to all this and much more that Lawyer replied What have we to do with the Law of Nations if it be contrary to the Law of England One
pretended afterwards to excuse him and that he spoke but according to the words in the Statute of 21 H. 8.21 where it is said We are free from any subjection to any mans Laws but onely to such as have been devised made and ordeined within this Realm for the wealth of the same c. which words are intended against the Papal Usurpation imposing Laws upon us The illegal Preface to the Propositions at the Isle of Wight As also if it be thought fitting that that Preface to the Propositions sent by the House to the late King at the Isle of Wight which seem to strike at if not to take away the Kings Negative voice in Parliament expresly contrary to many Acts of Parliament the Kings most known Prerogative and the most known Custom and Law of the Land be declared illegal and derogatory to His Majesties Prerogative and just right Rectifying of translation of some words As also if it shall be thought fitting that the translation of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Rom. 13.1 to higher powers altered to the supreme powers for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Pet. 2.13 is translated whether to the King as supreme The two Houses and Powers inferior many degrees to them have by some been interpreted to be meant by higher powers and strangely hath it been wrested if not exclusive of the King As also if it shall be thought fitting that that expression Illegal Declaration about the time of His Majesties coming over in one of the Declarations or Remonstrances that the Government was by the King Lords and Commons being derogatory to His Majesties Prerogative and Legislative power and the Government being in him radically and but derivatively and subordinately in any others for and under him Therefore to be considered of altered and amended The Printing-press As also if it shall be thought fit that the Presse be carefully looked into that no seditious Books or Pamphlets be vented to poyson the people or to confirm any in their bad principles The want of this care hath grown into a great Seminary of mischief which if nothing but our sad experience of it should make us more wary for the future A body of the Law to be framed As also if it shall be thought fit that according as was begun by the late Lord Chancellor the Lord Viscount St. Albanes which as 't is said King James put him upon a Body of the Laws should be digested and compiled and then by authority of Parliament be ratified Further touching Ecclesiastical matters Ecclesiastical Courts to be Courts of Record The Ecclesiastical Courts proceeding according to His Majesties Ecclesiastical Laws sitting under the same Crown with all other Laws some advise if it shall be thought fit that to all intents and purposes of Law they should be Courts of Record as well as any other Courts Reading the Articles of Religion By the Statute 31 Eliz. c. 12. the Incumbent is to read the Articles of Religion within two moneths after his Induction and 't is said some have not taken Induction at all because they would not read the Articles Had the Statute limited it within that time after Institution it had met with that fallacy Signing with the Cross in Baptism In the form for Private Baptism when the child privately baptised is afterwards brought to the Church to have the Baptism published at the receiving the child then into the Congregation there is no Interrogatory whether in the private Baptisme it had been signed with the sign of the Crosse as commonly if not altogether they are not neither is there any mention then at the publishing of the Baptisme of so signing it And it hath been found that some persons have pretended weaknesse in the Infant when it was not so onely to avoid the signing of it with the Crosse Churching of women privately There being no Law that allowes private Churching of women it is wished it might be alwayes publick in the Church and with a Vail and if within the moneth the woman be not able to come to Church to defer it till the recovery of her health Touching Absolution In Cathedral and Collegiate Churches usually one of the Singing-men though in orders gives the Absolution and the Blessing at the end of Service which some wish might be done by the Bishop if present or Dean or some Dignitary or more eminent person present And that the Anthems and other parts of the Service which are performed singing or in a singing tone may be made more intelligible to all the Auditors who many of them are scandalized by the contrary which might be helped by some small alteration in the composure so that as sometimes was practised and that without any hinderance to the harmony first one of the Singing-men to declare out of what Chapter and Verses or part of the Scripture that Anthem is taken or what Hymn or Spiritual Song it is and then immediately before the singing each Verse with a clear audible voice to read it This would help much but the best way were that the Singing-men and Choristers were taught exactly to sing most articulately clearly and plainly and not to drown the words in their mouths that they cannot be understood but openly and distinctly sound forth every syllable that they might be as well or better understood then when they onely read them And this hath been most commendably done by some expert Artists that way and might by all Mr. John Frost late Westminster and one of the Gentlemen of His Majesties Chappel Royal gave a most clear and most deservedly worthy to be imitated precedent hereof then whom never any man read more plain and clear and yet what he sung was if possible more plain and clear then what he read Touching the Writ De excommunicato capiendo By the Statute for the tryal De Excommunicato capiendo the person excommunicate is to be published in his Parish Church which sometimes the Minister refuses or there is no Minister In which case 't is wished it might serve to have it fixed upon the Church dore upon the Lords day or a copy left at his dwelling house and the forty dayes to commence from that time FINIS A Table of the Particulars contained in the Notes touching alteration of some Laws TOuching Parliament proceedings Page 97 Ordinance of Paerliament ibid. Privilege of Parliament ibid. The Bishops Protestation Page 98 The King none of the three Estates ibid. Proceedings of the House of Commons Page 99 Age of Parliament-men Page 102 Election of Parliament-men Page 103 The great number of Boroughs and Corporations ibid. Touching the manner of proceeding in Parliament Page 104 A competent number of Parliament-men to be at every debate Page 107 The manner how it may be constantly observed ibid. Fees of the Officers of Parliament Page 108 Touching new Laws ibid. Acts of Oblivion c. Page 109 Restitution of some goods where the property is not altered Page 110 Reparation to persons spoyled Page 111 Touching the Long Parliament ibid. The keeping the Records of the Tower Page 113 The Militia ibid. Oaths of Allegeance and Supremacy explained ibid. Robbery the Law to be altered Page 114 Against condemnation upon a single testimony Page 115 Touching Juries Page 116 New Laws to be made upon new accidents Page 117 Making of Eunuchs ibid. Stealing of Winding-sheets ibid. Stealing of men Page 118 Against delayes in Courts ibid. Fees in all Courts ibid. About examination of witnesses in defence ibid. Against the examination of witnesses in the hearing of one another Page 119 Reparation to persons wrong fully accused Page 120 The Act touching the Court of Wards and Tenures to be repeated Page 120 Rates to be set for buying commodities Page 121 About dignity and precedency ibid. Against the Act for limitation of Actions Page 122 Against multiplicity of Statutes upon the same subject ibid. The Clergies Proctors in the House of Commons Page 123 About augmentation of Vicaridges ibid. Against Mensals Page 124 Touching the bounds of Jurisdictions Page 125 The Ordinaries power about distribution of portions ibid. Against concurrence of Jurisdictions ibid. Wills to be transmitted into the several Counties Page 126 Degrees of Marriage prohibited ibid. About the suppression of seditious books Page 127 Spensers Treason ibid. Goodwins book ibid. Bucks book ibid. Sir Edward Cooks writings Page 128 Illegal and seditious Speeches ibid. The illegal Preface to the Propositions at the Isle of Wight Page 129 Rectifying the Translation of some words ibid. Illegal Declarations Page 130 The Printing-press ibid. A body of the Law to be framed ibid. Ecclesiastical Courts to be Courts of Record ibid. Reading the Articles of Religion ibid. Signing with the Cross in Baptism ibid. Churching of women privately Page 131 Touching Absolution ibid. Touching the Writ De excommunicato capiendo Page 132 FINIS
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
others were these A grave and able Civilian and then a Member of the House of Commons was accused by an Inconformist that he had excommunicated him for not kneeling at the Communion when he received I was present and saw and heard it and to my best remembrance it was for not kneeling at the Communion at least it was for not performing some other Ceremony so that as to this matter 't is all one The Civilian being called up to a Committee of the Lords then in the Long Parliament out of the House of Commons to answer it By his Counsel he desir'd time to send into the Countrey where it was pretended to be done to know whether he had done any such thing it being impossible for him to remember every particular that he had done in his Jurisdiction and that particular he said he did not remember He had time given and informed himself thereof and at the next appointed time of his appearance by his Counsel pleaded that he had done no such thing as he was accused of The Accuser said then it was done by his Deputy or Surrogate That was denyed too Then he said he was sure it was done by the Spiritual Court and so it was but not by any Spiritual Court where that Civilian had to do Then the Civilian pleaded that if he had done that whereof he was accused he doubted not but he could have justified it but since it appears that he was unjustly accus'd and reap'd some discredit by being thus question'd and had been put to trouble and charge thereabouts he desired reparation and charges which by many of the Lords was yielded to yet by the major part it was carried that he ought not to have it and the reason was rendred because it would deter others from complaining Si satis est accusasse quis erit innocens Nay how far may it tend to the ruine of some if some men be maliciously set upon them to multiply accusations against them The other was Another Inconformist complaining of his being question'd in the Ecclesiastical Courts for his Inconformity In defence it was alledged against him and proved that he had said He would as soon bow at the name of Judas as at the Name of JESUS and I diligently enquir'd but never heard he was punish'd for it But would there had been no more then these though these are too much Would some had not gloried had not triumphed in their shame Bella geri placuit nullos habitura triumphos CHAP. II. The two Proviso's in the late Act that takes away the doubt touching Coercive power in Ecclesiastical Courts Dr. Cosens Apology for sundry proceedings by Jurisdiction Ecclesiastical That groundless Opinion That a several Royal assent to the executing of every particular Canon is requir'd is confuted The validity of the Ecclesiastical Laws The clamours of Inconformists Innovators and Fanaticks against the putting of Ecclesiastical Laws in execution though the Ecclesiastical Officers and Ministers are by Act of Parliament severely commanded to do it BY the late Act before mentioned where the Doubt so it is called there about the Coercive power in Ecclesiastical Courts is clear'd and taken away One Proviso is That that Act nor any thing therein conteined shall extend or be construed to extend to give unto any Archbishop or Bishop or any other Spiritual or Ecclesiastical Judge c. any power or authority to exercise c. If any be peccant that way it ought to be amended Another Proviso forbids any Archbishop Bishop c. to tender or administer unto any person the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment This being now forbidden by Act of Parliament every Subject ought to give obedience therein But some now insulting and upbraiding the Ecclesiastical Courts that all this while they have oppressed the Subject with that proceeding which the Parliament hath taken away renewing the old cry in Queen Elizabeths time and ever since against such proceedings which never till now I alwayes except what was done in the late times of usurped government were legally prohibited Though I am far from questioning the reasons whereupon that Act passed but do humbly submit to it both in word and practice yet I hope it will be allowed to make some defence against such persons as so tax such proceedings before the passing of this Act. And herein I shall follow that most able Civilian Richard Cosin Doctor of the Laws and Dean of the Arches in that his Apology for sundry proceedings by Jurisdiction Ecclesiastical c. Mr. Cambden as before mentions him with honour as surely he well deserv'd and that work of his if nothing else evinces it Mr. Swinburn in that Work of his of Last Wills and Testaments printed at London for the Company of Stationers 1611. in the first part sect 6. numb 8. fol. 17. writes thus of him and of that Work of his that Apology I find saith he written by that learned and no less religious man Doctor Cosins as I take it in that worthy Work entituled An Apology for sundry proceedings by Jurisdiction Ecclesiastical c. and so he goes on Upon this subject he hath written so fully that I believe little can be added to it and if any should go about it excepting such additions as well may be added by reason of some emergencies since the time he wrote and some other additions and explications not derogatory from him they would be forced very much to plough with his Heyfer which would but look too much like a Plagiary I could wish the book were reprinted and haply it will be so which may serve for Topicks to this subject For as all the Poets after Homer are said to drink of his Fountain according to that picture or statue of his that denotes as much with that Inscription Ridet anhelantem post se vestigia turbam Even so must I conceive all do from Doctor Cosin that shall write upon this subject I was upon Epitomizing that Apology of his and had made some progress therein but upon second thoughts desisted thinking it better to refer the Reader to him rather then to adventure to abbreviate him and thereby perhaps wrong him an offence that too many Epitomizers are guilty of therefore I say I shall onely make use of some Notes as confessed arrows out of his quiver and sippe of some others elsewhere and point the Reader to his full stream where any that list may drink their fill Upon these words in the late Act Provided that this Act. nor any thing therein contained shall extend or be construed to extend or give unto any Archbishop Bishop c. any power or authority to exercise or execute c. any jurisdiction which they
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
Jethro's advice should stand in judgment from morning to the evening That last is which some doubtless for want of understanding would have the Oath so given them that after they had taken the Oath there should be no farther enquiry And this they hold grounding themselves upon that sentence of St. Paul An Oath is the end of all strife Heb. 6.16 I stand not upon it that it may be so interpreted that the original Greek word there peràs rather is the State of the Controversie then the End of it But be it so the end let the Oath be the end but not every Oath or by whomsoever taken or howsoever performed this can scarcely be thought to proceed from a man in his right wits but I hope it must be such an Oath of the credit whereof there may be no contradiction in case the Contradiction ought to be ended by that Oath Wherefore if the Judge must end the Suite or Controversie without contradiction it must be so clear that no man even without Examination or after Examination will or can contradict it For to desire to free every Oath of every man from all Inquisition what is it but to plead for perjury What else is it but as it were upon warning given so by this kind of Authority given to sollicite men of loose Consciences to commit this wickednesse For whether the Actor or Defendent or Witness take it the Oath is of the same Conscience of the same face there 's an end if one will swear that what he sues for or complaines of is his is true presently he carries the Cause But afterwards it must be unlawful to enquire whether he hath sworn true or no Because an Oath is the end of all Controversie If this be granted it makes well for perjured men Let them make their peace with God as well as they can from the Law they need fear nothing nor shall be punished by the eare for what they sinned by their mouth How juster is that Yea truly if the Oath be sound let the Inquisition thereupon be twice or thrice or seaven times if it be thought fit it will alwayes as out of a furnace come forth more clear and pure and the very Inqusition it self will become an acquisition of more credit But if the Oath be not of good but doubtful credit or suspected Let it be inquired into and let Justice break unjust bonds Surely this is reason and is it only reason Doth not the Law say the same Whether one contend by oath either in his own cause for himself or in anothers against another for himself For himself The woman of suspected chastity when she had upon her oath denyed the adultery laying a most heavy curse upon her self if she were guilty was she thereupon presently dismiss'd for an Oath is the end of all controversie No a new question was made whether she had sworn truly or no for proof whereof she was to drink the Bitter waters which would be the confirmers of the Oath if true and the revengers if false Num. 5.24 Against another When the Law had provided that out of the mouth of two or three witnesses who being sworn had given testimony against a man the matter should be established Deut. 19.15 Lest any man should take humane testimonies for Divine Oracles in the next Verse 't is commanded that the suspected witnesse must stand before the Lord the Priests and it must be enquired into whether he hath carried himself sincerely and truly in the testimony he hath given but if he be convicted of falsity then shall he be punished as he should have been whom he complained of But I shall transgress upon the time and upon the Church too the Clock having a while ago called us off if I should further follow these trifles which whoever list may bray with arguments they of their own accord so overflow therefore I restore you to your selves and conclude If as the Prophet saith Isa 28.17 this Judgment which we use be laid to the Line and Righteousnesse to the Plummet of Gods Word there shall be in those things no sin For the Magistrate to require and that from the party guilty or defendant especially if the cause be not capital or a cause of Bloud an Oath and that he may do it so far whether it be that the controversie may thereby be set upon its foundation whilest the state of the cause is sought for or that the truth of the proofs may be made evident whilest the question is handled Nor does the ends of the Oath or the order or the examination offend against Divinity and therefore cannot be declined They that decline it first they do it out of ignorance of Gods Law then the example is dangerous that one may thus for his pleasure enquire into publick judgments without judgment if we may call into question the rest of the affairs of the Kingdom and the moments of the Commonwealth lastly the Law it self if it make not for us That God Almighty may avert this from us to whom turning our selves let us pray that he will give us grace to be modestly wise and sober in all things to see in our minds how irreligious it is how unchristian to decline the judgments of our Nation but rather with all our endeavour with all the strength and force of our Wit to maintain them which maintain the Commonwealth and us all for next after God and his service most true is that saying of Elihu Job 36.17 Judgment and Justice maintain all things Upon the consideration most especially of what hath been written by Dr. Cosens in that Apology touching the Oath Ex officio and Purgation and what is said in that short Manuscript and in the Lord Bishop Andrews Determination thereupon and of the inconveniences and hurt that probably may be feared to ensue upon the prohibiting that Oath and Purgation together with the practice still at Common Law in the like cases and the rest that is here set forth as it is hoped that Act may be thought fit to be revised and re-examined and perhaps altered so with the like humility all that is said or shall be said in this Treatise is most submisly tendered to His Sacred Majesty the Lords Spiritual and Temporal and the Commons in this happy Parliament now assembled to be weighed by them if so to their Wisdoms it shall be thought fit otherwise to be as unsaid and retracted as is every thing there if it be dissonant to Gods Word His Majesties Prerogative the Laws of Church or State or the known Laws of the Land or the just policy and government in Church or State or against Christian charity or brotherly love Should any man object That some Civilians desired that this Act whereby the Oath Ex officio and Purgation is forbidden should passe at the end of the recess of Parliament the latter end of this last Summer 1661. when many other Acts of great concernment
much as to give an Oath yet how often did they then upon small matters unworthy of their cognisance in regard they might have been so easily remedied by the known ordinary Laws of the Land and the ordinary competent Judges thereof call orthodox conformable and worthy Ministers to appear before them from very distant remote places sometimes near upon 200. miles for setting a rail about the Communion Table according to the command of the Ordinary or matters of such inferiour nature these brought on and fomented by Inconformists then to the great mischief to this Nation too too much favoured promoted and prosecuted by the then prevailing power The Fees and charges were then very high insomuch as some Ministers were almost if not altogether undone before they could get up thither and when they came by reason of multiplicity of businesse in the Commons House they staid there long and upon great charge paying high Fees still to the Serjeant or other Officers of the House whilest they lay under restraint which oftentimes was very long When a charge after long delay was given in then they gave their answer after a long stay too Then a Committee of many Members was appointed to examine witnesses which was done without oath then after a long time the cause was reported many of these Members not having heard the whole cause but some one part some another yet often concurring at the voting and reporting the cause to the House of Commons which was a strange kind of proceeding to call it no worse In the Star-chamber and High-commission none used to give sentence but such as heard all the cause and they usually excused themselves when they had not heard all the cause Now when the House of Commods had proceeded thus far upon the matter yet they had done little or nothing but vexed and undone a poor and perhaps guiltless Minister for they were to transmit the cause to the Lords House and there to begin it de novo examine the witnesses again upon oath which as before the other House could not do And here 't is to be considered whether or no it were not anceps perjurium a dangerous temptation to witnesses that perhaps have spoken too largely being unsworn will if but for fear of loss of Reputation confirm upon Oath what they have said without Oath It is to be feared also some poor men foreseeing this unevitable course of undoing them have either wronged their owne cause and betrayed their innocence by confessing themselves guilty or ad redimendam vexationem compounded with their prosecutors even to their own undoing or well nigh If there had been cause and that it could not properly in an ordinary way have been remedied by the proper competent ordinary Judges why should not the cause have been begun heard and determined in the Lords House at first Could the Houses especially the Commons House then have been brought into such due order as not to act extra spheram activitatis suae 't is well to be hoped they would not as above have been desirous to lengthen or perpetuate that Parliament when they can as by right repeal no old nor make no new Law nor tax the Subjects estate nor make Ordinances to have the force of Laws without His Majesties assent King Henry the Eighth suffered the Houses of Parliament in Ireland for a matter of two years or thereabouts to continue petitioning him to dissolve them and dismiss them home which he would not do till he saw cause Though this is not in his commendation yet hereby the just power of the King appeared and the right of his Prerogative which hath been too long and too much trampled upon And surely the Law in this point is the same in Englaud as in Ireland that the just bounds and limits on all sides might be preserved inviolate Touching the Age of Parliament-men Age of Parliament-men In the Lords House none sit there under 21. years of age and some wish none might under 30. though there they are singly for themselves and represent not others as in the House of Commons But in the House of Commons there hath been sometimes as was in the Long Parliament Members about 16. or 17. years of age if not some of them under and their Suffrages and Votes were of as much force as the eldest most experienced in the House And it hath been the observation of some experienced and wise Parliament-men that oftentimes in that House those that had the shortest wings were the highest flyers and such as these could adde number and so consequently weight to a side The inconvenience and hurt that arose from hence is easily demonstrable and hath too much appeared by frequent experience Some have wished that there should have been no Member of the Commons House under the age of 30. years there being so large a field whereout to choose Parliament-men for every place and it being even as it were ex diametro contrary to the nature and denomination of a Parliament which is but a great Senate so called à Senioribus the constituting Members thereof Touching the Election of Parliament-men Election of Parliament-men Some have advised that it should be clearly free without such ambient means as were used in the Long Parliament by some Factions and whereas every man may give his suffrage for Counties that hath 40 s. per annum and in Cities and Corporations without such a value that being the old custom And that which was 40 s. per annum in former Ages is worth now ten times as much well nigh if not more So consequently the Electors should be of better estate The great number of Burroughs Corporations There being such a vast disproportion betwixt the Cities alwayes excepting London and Corporations Burroughs especially and the Counties wherein that Burrough and Corporation is scituate for number of Inhabitants which heightens the concernment In some Counties there being so many Corporations that the County having but two Parliament-men to represent them be the County never so great yet every petty Corporation whereof in many Counties especially in the West there are very many such hath as many to represent it of equal power in the Commons House with any other Member of County or City So that the Parliament-men serving for Cities and Burroughs are in number by many degrees far much more then for Counties which hath been conceived to have been no small cause of our late troubles Some advised for that reason and for other reasons too well known notorious and obvious to every indifferent eye that the number of these Burroughs should be much lessened or at leastwise that power of Electing Parliament-Members Especially so many of these Corporations Cities and Burroughs having in these late troubles so clearly forfeited their Charters Touching the manner of proceeding in Parliament in the Commons House in the Long-Parliament It hath been ordinarily observed as is touched above that in Committees in that Long-Parliament some have
easily done thus The manner how it may be constantly observed In the House of Commons each long seat in the uppermost part thereof down towards the door to contain thirty or forty partitions or more or less as the length of the seat will bear so that in each partition there could not one man sit and an order made which seat should be first filled and which next and so successively one after another and none to go into the second seat till the first were filled nor into the third till the second were filled and so to the rest in like manner And to make it at the first view clear the number of every partition in order to be in great legible figures set over the head of the person that sits in that partition as 1. 2. 3. 4. c. then it being known being made so plain and certain how many persons each seat when filled contained as thirty or forty c. each seat being to contain equal numbers if that may be at least each seat of the side so many and each at the end so many equally It is quickly determined by seeing how many seats are filled or how many are in such seats whether the number required to be at the passing such Vote be then there or not The seats for Privy Counsellors may notwithstanding this be distinct and kept for them and for Committees some such course to be taken too if need were in a due proportion In the Lords House such distinctions of seats and partitions cannot be conveniently so done in regard of the requisite priority of place there which is otherwise then in the House of Commons yet the competent number there that House being not near so numerous as the Commons House which had need be as many in proportion as the Commons House might have been quickly and easily discernable The number of forty in the Commons House and a much lesse in the Lords House though by many accounted to be a competent number to make up an House we have seen how upon design ill use was made of it in the Long Parliament which could not easily perhaps not at all have been done with so great a number To instance no more the pitiful number of Peers present at the passing that pretended Ordinance for the late Lord Archbishop of Canterbury's death may be thought on Fees to the Officers of Parliament Some advised that it might have been considered what Fees should have been taken by the Officers of Parliament Clerks Serjeants and other Officers some then conceiving them to have been very high Touching new Laws Declarations c. to be made and old Laws to be repealed and altered WE have seen in that Long Parliament what ill constructions were made by some men of Precedents in foregoing Parliaments accounting what has been once done there quo jure qua injuria right and good and to be deduced into practice even those strange irregular acts in the tumultuous times of Richard the second and Henry the fourth nay we have seen how Spensers Treason distinguishing the person and office of the King so declared to be Treason by Act of Parliament many ages since even urged for right to instance no more Some have advised that such precedents acts and proceedings should have been examined and by publick Declaration by Act of Parliament purged or abolished or declared illegal Acts of Oblivion c. And that if but for that reason of preventing that male construction of citing ill precedents for Law that an inspection should have been made into the Acts of Amnesty and Oblivion passed in the first years of the Long Parliament and also that passed this last Parliament We have seen especially if we looked Northward how soon after such Acts of Indempnity and Amnesty the Delinquents as though they thought themselves justified in their former crimes fell again into the same And that there should in those past and due care be had for the same in the future have been a specification made of the crimes and offences intended there to have been pardoned and put into oblivion lest otherwise implicitely and insensibly they might have been taken not to be crimes and Loyalty and Fidelity tacitly at least accounted crimes and so creep into precedent and example for the future And that the first Paragraphs in the late Act of Pardon Indempnity and Oblivion might if thought fit be considered of where in the first place are pardoned All and all manner of Treasons Misprisions of Treason Murthers Felonies and Offences crimes c. counselled commanded acted or done since the first day of January 1637. by any persons before the 24. day of June 1660 c. by vertue or colour of any command pâ—…er authority commission warrant or instructions from His late Majesty King Charles or His Majesty that now is Though there might be some obliquity error or abuse in the execution of Commissions from their Majesties yet some stumble at these expressions of Treasons Murther c. to be committed by Commission from the King as without all question was committed by Commissions granted by others and yet here they look like equal and eaven crimes which no loyal man can own It neither hurts nor hinders the pardon but rather more strengthens it that the crimes pardoned are specified and let the application be made onely to them that are guilty of them not to the guiltlesse and such as deserve honour and reward for that which some would at least imply to be criminal much lesse no ignominy or reproach Surely the Loyal party that acted according to the known Laws for so acting needed not His Majesties pardon Facinus quos inquinat aequat Some men cannot think themselves cleared except they can taint others guiltlesse with the imputation at least of these crimes whereof they themselves onely are culpable and it is a question whether their true meaning be not that they would have an Exculpation a term we have more lately had from the North and even a justification from their known crimes at least to be accounted no greater crimes then the actions of those that acted by the Kings authority according to the known Laws of the Land which they well know are no crimes but the contrary It is obvious to every eye how some have sweat to have justified all the illegal Acts of the Long Parliament Some make little or nothing of the endeavours that then were to have killed the late King in Battel but onely of putting him to death in cold bloud Restitution of some goods where the property is not altered And that if thought fit that such goods whereof the property is not altered as Houshold-stuff Plate Furniture of beds Pictures Hangings eminent Jewels or such like plundered or taken away wrongfully either by pretended Sequestrations spoil or otherwise should be restored to the owners or in some cases a just value repaid for them with a just consideration to be had of the parties from whom