book has by variety of proof so sufficiently made it good already But yet it is worth the setting down what some of our own Countrey-men have in their writings acknowledg'd to the very same purpose and those especially amongst the rest whose interest and high valuation which they pass upon the Laws of their own Countrey will not permit them to ascribe more to the Civil Law then the just truth will bear And it is most observable what King James himself the learnedest of all modern Princes said here in a Speech made to no less solemn assembly then his Lords and Commons of Parliament u 21. Martii 1609. which we have extant amongst his printed works As a King saith he I have least cause of any man to dislike the Common-Law for no Law can be more favourable and advantagious for a King and extendeth further his Prerogative then it doth And for a King of England to despise the the Common-Law it is to neglect his own Crown Yet saith he I do greatly esteem the Civil Law the profession thereof serving more for general learning and being most necessary for matters of Treaty with all forreign Nations And I think that if it should be taken away it would make an entry to Barbarisme in this Kingdome and would blemish the honour of England for it is in a manner lex Gentium and maintaineth entercourse with all forreign Nations But I onely allow it to have course here according to those limits of jurisdiction which the Common-Law it self doth allow it And therefore though it be not fit for the general government of the people here it doth not follow it should be extinct no more then because the Latin tongue is not the mother or radicall Language of any Nation in the World at this time that therefore the English tongue should onely now be learned in this Kingdome which were to bring in barbarisme And in another speech in Star-chamber x 20 Iun. 1616. printed also God forbid saith he the Law of Nations intending thereby chiefly the Civil Law should be barred in this Kingdome and that for two causes one because it is a Law to satisfie strangers which will not hold themselves so well satisfied with other municipal Laws another to satisfie our own subjects in matters of Piracy Marriage Wills and things of like nature And again when he was so mightily pressing to have had an union of England and Scotland under the same policy of Laws as they had but one and the same King in a speech made upon that subject y Ult. Mart. 1607. extant in his printed works he told his two Houses of Parliament that in point of conjunction of Nations the Civil Law ought to bear a great sway it being the Law of Nations These are the expressions of a King the interest of whose Crown and Scepter and the prerogatives thereunto belonging did depend upon the favour of another Law and yet he positively and in down-right termes in the face of all his people avows the Civil Law to be the Law of Nations and that all transactions of Treaty and of Trade with forreign Nations were dispatched by the rule and reason thereof and that the authority thereof was so great in the esteem of strangers that they would rest satisfied therewith when no municipal Law could satisfie them But in that he avers also that when the people of England shall exterminate that Law which must needs be when the practice thereof is quite taken away or thrust into a poor narrow compass their honour will be obscured and they will be in danger to be over-run with barbarisme it was never so well worth the observing as at this present time And it clearly shews that wise and learned King did perfectly understand the true use of the Civil Law for as the language thereof must needs be a means to maintain learning which does civilize soften the minds of men so there is no sort of learning with the which the matter of it does not correspond and participate but above all it does afford more and better rules for civil living and orderly conversation amongst men and for righteous dealing each with other then any other study or learning whatsoever But this practise and usage of the Civil Law in forreign parts is yet better confirmed by the authority of those who studying and professing the Law of England have been alwayes jealous of the rising and growth of the Civil Law in this Nation For though they have desired to keep it low here for what reason I need not mention yet some of them have freely enough owned how much it is in use and practise in other Countreys Sir Francis Bacon in his Epistle Dedicatory to the Queen set before his Maximes of Law after he had told the Queen that Justinian the Emperour did gloriously and yet aptly call the Body of the Roman Laws proprium sanctissimum templum justitiae consecratum a true and a most sacred temple consecrated unto justice he sayes that it is a work of great excellency indeed as may well appear in that France Italy and Spain who have long since shaken off the yoke of the Roman Empire do yet nevertheless continue to use the policy of that Law My Lord Ellesmere Chancellour of England as Sir Francis Bacon was in his speech of the Postnati does expresly deliver that the Civil Law is taken to be the most universal and general Law in the World Sir John Fortescue himselfe Lord chief Justice of England and afterwards Lord Chancellour in King Henry the sixth's dayes in his book wherein he does so highly magnifie and commend the Laws England above the Civil Law yet he could say z De Laud. legum Angliae ca. 9. That Civiles supra humanas cunctas leges alias fama per orbem extollit gloriosa The Civil Laws throughout the whole World are advanced in glory and renown above all other mans Laws Fulbeck also another of the same profession and of great learning does agree with the former in these words a In his parallel part 1. Epistle to the Reader The Roman Laws saith he in the times of Arcadius Theodosius and Justinian recovered their strength and shining to all the Common-wealths of Europe as the Sun to all the climates of the Earth have for their worthiness and necessary use and employment received entertainment countenance and great reward of Emperours Kings and Princes Likewise Mr Sâ—lden a Graduate in the Common-Law but a great Student in all learning and one that seems to have searched narrowly into the state of the Civil Law as it has stood in use and request in other Countreys as well as in England in all times in his additional discourse upon Fleta wholly spent upon that subject owns the entertainment and use of the Civil Law in the Western Countreys of Europe that had left to acknowledge the Roman Empire long before For in that discourse b Ca.
His Majesties Prerogative or the known Laws of the Land Ecclesiastical or Temporal or the politick Government either in Church or State or which may give just offence I do hereby absolutely retract it as no wayes by me intended or thought of wishing this small taste may stir up others more able to make a further and better progress in this kind Anno 13. CAROLI II. Regis An Act for explanation of a Clause contained in an Act of Parliament made in the seventeenth year of the late King Charles entituled An Act for repeal of a branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical WHereas in an Act of Parliantent made in the seventeenth year of the late King Charles entituled An Act for repeal of a branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical it is amongst other things enacted That no Archbishop Bishop nor Micar General nor any Chancellor nor Commissary of any Archbishop Bishop or Micar General nor any Droinary whatsoever nor any other Spiritual or Ecclessastical Judge Dificer or Minister of Justice nor any other person or persons whatsoever exercising Spiritual or Ecclessastical Power Authority or Jurisdiction by any Grant License or Commission of the Kings Majesty his Meirs or Successors or by any Power or Authority derived from the King his Deirs or Successors or otherwise shall from and after the first day of August which then shall be in the year of our Lord Bod One thousand six hundred forty one award impose or inflict any Pain Penalty Fine Amercement Imprisonment or other corporal punishment upon any of the Kings Subjects for any Contempt Misdemeanour Crime Offence matter or thing whatsoever belonging to Spiritual or Ecclestastical Cognilance or Jucisdiction whereupon some doubt hath been made that all ordinary Power of Coertion and Proceedings in Causes Ecclessastical were taken away whereby the ordinary course of Justice in Causes Ecclessastical hath been obstructed Be it therefore declared and Enacted by the King most excellent Majesty by and with the advice and consent of the Lords and Commons in this present Parliament assembled and by the Authority thereof That neither the said Act nor any thing therein contained both or shall take away and ordinary Power or Authority from any of the said Archbishops Bishops of any other person of persons named as aforesaid but that they and every of them evercisting Ecclesiastical Jurisdiction may proceed determine sentence erecute and erecise all manner of Ecclesiastical Jurisdiction and all Censures and Coertions appertaining and belonging to the same before the making of the Act before recited in all causes and matters belonging to Ecclesiastical Jurisdiction according to the Kings Magesties Ecclesiastical Laws used and practised in this Realm in as ample manner and form as they did and might lawfully have none before the making of the said Act. And be it further enacted by the Authority aforesaid that the afore recited Act of decimo septimo Caroli and all the matters and clauses therein contained ercepting what concerns the High Commission Court or the new erection of some such like Court by Commission shall be and is hereby repealed to all intents and parposes whatsoever Any thing clause or sentence in the said Act contained to the contrary notwithstanding Provided alwayes and it is hereby enacted That neither this Act not any thing herein contained shall ertend or he construed to revive or give force to the said branch of the said Statute mave in the said first year of the Reign of the said late Queen Elizabeth mentioned in the said Act of Parliament made in the said seventeenth year of the Reign of the said King Charles but that the said branch of the said Statute made in the said first year of the Reign of the said Queen Elizabeth shall stand and be repealed in such sort as if this Act had never been made Provided also and it is hereby further enacted that it shall not be lawful for any Archbishop Bishop Hicar General Chancellor Commissary or any other Spiritual or Ecclesiastical Judge Officer or Minister or any other person having or erercising Spiritual or Ecclesiastical Jurisdiction to tenver or administer anto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tenvered or administred may be charged or compelled to confesse or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment any thing in this Statute or any other Law Custom or Mage heretofore to the contrary hereof in any wise not withstanding Provided alwayes that this Act or any thing therein contained shall not extend or be construed to extend to give unto any Archbishop Bishop or any other Spiritual or Ecclesiastical Judge Officer or other person or persons aforesaid any power or authority to exercise execute inflict or determine any Ecclesiastical Jurisdiction Censure or Coertion which they might not by Law have done before the year of our Lord One thousand six hundred thirty and nine nor to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs nor to confirm the Canons made in the year One thousand six hundred and forty nor any of them nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enarted by Parliament or by the established Laws of the Land as they stood in the year of the Lord One thousand six hundred thirty and nine The Contents of the Chapters Chap. I. THe endeavours of the Innovators to change the course of Ecclesiastical proceedings That stupendious Fanatick Hackett his fearful end Mr. Cambdens judgment touching the Innovators Their perseverance in their design of Innovation in King James his time and afterwards The pretended taking away the Coercive power from the Ecclesiastical Courts how gained what use was made of it by the Innovators and how they boasted of their benefit by it Two passages in the Long Parliament touching two Inconformists Page 1. Chap. II. The two Proviso's in the late Act that takes away the doubt touching Coercive power in Ecclesiastical Courts Dr. Cosens Apologie for sundry proceedings by Jurisdiction Ecclesiastical That groundless Opinion That a several Royal assent to the executing of every particular Canon in required is confuted The validity of the Ecclesiastical Laws The clamours of Inconformists Innovators and Fanaticks against the putting of Ecclesiastical Laws in execution though the Ecclesiastical Officers and Ministers are by Act of Parliament severely commanded to do it p. 10. Chap. III. The Heads of the several Chapters in that Apologie of Doctor Cosens Part 1. p. 27. Chap. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A summary relation of what Dr. Cosens in his Apologie hath asserted and made good by Gods Word the practice of the Primitive Christians the opinion of the Father the
at Common Law Proceedings in Chancery with the several species and kinds of cases wherein such Oaths at Common Law are tendered being very numerous and are by him cap. 6. in the third part of his Apology and other parts thereof reckoned up and fully set forth And if this may be done in civil causes ought it not much rather be allowed the Church in criminal which works onely medicinaliter to reformation the Common-wealth works ad poenam the Church not so this to the amendment of the party to bring him to a voluntary submission and to take away the offence and scandal which he hath justly given to his Neighbour and to lead a new life that perhaps to the loss of liberty corporal punishment or livelyhood at least besides the infamy of being convicted of doing dishonestly and unworthily CHAP. V. That it is consonant to Gods Word to give such an Oath Ex Officio or otherwise EVery soul is to be subject to the Higher Powers Rom. 13. This is to be understood in all commands not contrary to Gods Word Acts 5.29 in such comes in the Apostles rule It is better to obey God then man That the giving such an oath is not contrary to Gods word An oath duly imposed by the Magistrate necessitates the Subject to take it as appears by the commandment of God himself Thou shalt the Lord thy God and serve him and shalt swear by his name The like is given by the Lord in the Prophet Jeremy O Israel thou shalt swear The Lord liveth in truth in judgment and righteousness Joshua gave charge to all the Magistrates of Israel Jer. 4.25 that They shall not make mention of the gods of other Nations nor shall cause to swear by them Saul did not onely charge the people with an oath Josh 23.2 7. but made them vow with a curse not to eat any food that day till night therefore one of them reported to Jonathan Sauls son 1 Sam. 14. That his father had made the people to swear Some would cavil at this as but an Adjuration and would without reason difference that from an Oath but in that Chapter 1 Sam. 14. it is four several times called an Oath The wise King Salomon imposed an oath upon Shimei in a cause capital to him Did not I make thee saith he swear by the Lord c. 2 Kings 42. So King Saul urged David to swear unto him 1 Sam. 24. for a private offence only between Neighbours King Salomon testifieth that a necessary oath of Purgation may be required by the Complainant 3 Kings 8. When a man shall trespass against his neighbour and he lay upon him an Oath to cause him to swear c. 2 Chron. 34. King Josias made a covenant and vow and caused all that were found in Jerusalem and Benjamin to stand to it Neh. 5.12 Nehemiah caused the Priests to swear c. It is assigned for a special mark of a Godly man To swear to his neighbour and not to disappoint him though it be to his own hinderance Num. 30.3 Psal 15.4 Abraham said thus to his servant I will make thee swear by the Lord God of the Heavens c. this in a private cause Gen. 24.3 much more a Magistrate in a cause wherein the Commonwealth or Church of God hath Interest to have it sincerely dealt in Jacob moved Esau to the sale of his birthright Gen. 25.33 and took an Oath for confirmation of it A man supposed to have born false witness against another is thereof brought in question Deut. 19.17 and re-examined if it be objected it was not upon oath by consequence of reason it must be upon oath when what he has said before upon oath is re-examined and this in a case very penal to him The oath of Adjuration is very frequent in Scripture Prov. 29.14 about not declaring cursing which he heard By the History * Jud. 17.1 2. of Micah as we are †1 Cor. 10.3 bound to do all to the glory of God so it belongeth to the glory of God for a man by due presumptions burdned with a crime and charged by the Magistrate to confess of himself as appeareth by the history of Achan The lot fell upon him but this was but an inducement to ground a special Inquisition against him if hereupon he might have been executed Joshua needed not to have required any further confession of him but he goes further with a most solemn Adjuration Lev. 5.1 in those dayes used for an oath the Hebrew word signifying both and being translated sometimes juramentum and sometimes adjuratio Son give glory to the Lord God of Israel c. Josh 7.9 albeit the punishment was capital Ezra adjured the Chief Priests c. Calvin in his Institutions gathereth Ezra 10.5 that Achan took an oath When a man is found secretly murdered in the field and the murder is not known nor suspected yet all the Elders of the next City thereunto should use certain Ceremonies and then swear That their hands have not shed this bloud nor their eyes have seen him that shed it Deut. 21. In Leviticus a certain Sacrifice is to be made for certain sins amongst which this is one as Arias Montanus translates it out of the Hebrew If a soul or a man shall have sinned and have heard the voice of an Adjuration or Oath c. That which is here said Lev. â—5 â— if he have heard the voice of an Oath the Geneva Translation offereth it thus in the Margin as if it were nearer to the Hebrew then the other in that Text viz. If the judge hath taken an oath of any other Exod. â—â— When a man delivers money of stuff on trust to be kept by his neighbour if it happen to be imbezelled away and the thief be not certainly known or found by the Low of God be must take a necessary oath of purgation and enquiry The same also is a little after established by God touching any quick goods happening to be left in deposito Ibid. v. 10. A sacrifice of Atonement for such a sin of Perjury is prescribed If any do sin saith the Lord any deny unto his neighbour c. If a man be moved with a jealous mind against his wife Num. 5.14 she is not onely to be charged with an oath but to have further tryal to drink the bitter waters Jer. 38.14 When the Prophet Jeremy was charged by the King in a generality to answer that which he would aske him the Prophet promiseth so it should not be capital to him he would answer it Whether upon oath or not oath for before God 't is the same no doubt he answered the truth (a) Jer. 37.13 The same Prophet when he was charged with a particular high crime refused not to answer or bid them prove it but roundly answers it (b) 2 Kings 5. So Elisha
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 been divorced and separate contrary to Gods Law and so the true Matrimony both solemnized â—n the face of the Church and consummate with bodily knowledge and confirmed also with the fruit of children had between them clearly frustrate and dissolved Farther 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 between Cousin-germans and so to the fourth and fourth degree 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 veration 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 been 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 or 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 which 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 contracted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had between the parties so married should be by authority of the said Parliament deemed 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 desired 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 Marriage 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 Day 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 Day when any cause or contract of marriage is pretended to have been made it shall be lawful to the Kings Ecclesiastical Iudge of that place to hear and examine the said cause 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 at I take it in that worthy Work entituled An Apology for sundry proceedings by Jurisdiction Ecclesiastical c. and so he goes on Upon this subject he hath written so fully that I believe little can be added to it and if any should go about it excepting such additions as well may be added by reason of some emergencies since the time he wrote and some other additions and explications not derogatory from him they would be forced very much to plough with his Heyfer which would but look too much like a Plagiary I could wish the book were reprinted and haply it will be so which may serve for Topicks to this subject For as all the Poets after Homer are said to drink of his Fountain according to that picture or statue of his that denotes as much with that Inscription Ridet anhelantem post se vestigia turbam Even so must I conceive all do from Doctor Cosin that shall write upon this subject I was upon Epitomizing that Apology of his and had made some progress therein but upon second thoughts desisted thinking it better to refer the Reader to him rather then to adventure to abbreviate him and thereby perhaps wrong him an offence that too many Epitomizers are guilty of therefore I say I shall onely make use of some Notes as confessed arrows out of his quiver and sippe of some others elsewhere and point the Reader to his full stream where any that list may drink their fill Upon these words in the late Act Provided that this Act. nor anything therein contained shall extend or be construed to extend or give unto any Archbishop Bishop c. any power or authority to exercise or execute c. any jurisdiction which they might not have done before the year of our Lord 1639. or to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters or affairs nor to confirm the Canons made in the year 1640. I say upon these words some are ready mistaking questionless the words and meaning of that Act to renew that old exploded Opinion or rather groundless Fancy That a several Royal assent to the executing of every particular Canon is required Hereto Doctor Cosin answers That admitting This were true then all the other opinions of those that oppugn the ordinary Jurisdiction Ecclesiastical stand in no stead and might be spared because this would cut off all at once For none that exercise ordinary Jurisdiction Ecclesiastical have it in particularity which by the oppugners seems to be meant otherwise then by permission of Law to every of their proceedings and impossible were it by reason of the infinity of it and troublesomness to procure such particular assent to the execution of every Canon His Majesties Delegates when Appeals are made to His Majesty in Chancery would signifie nothing could not exercise the power to them delegated by reason of the want of such particular assent and it is a gross absurdity to grant as even the Oppugners and Innovators do That Testamentary and Matrimonial causes are of Ecclesiastical cognizance to say nothing of the rest of Ecclesiastical causes and yet cannot by reason of this want be dispatched nor can be dealt in by any other authority according to any Law in force This would speak a defect in the publick Government that the Subject should have a right but no likely or ready mean to come by it and great offences by Law punishable and yet no man sufficiently authorized to execute these Laws Since the abrogation of Papal pretended Supremacy when the ancient rights of the Kings of England of being Supreme Governors over all persons within their Dominions as well in all spiritual or Ecclesiastical things or causes as Temporal and that no forreign Prince Person Prelate State or Potentate hath or ought to have any jurisdiction power superiority preeminence or authority Ecclesiastical or Spiritual within this Realm and so forth as in the Act and the Oath Since these rights were as it were ex postliminio restored and declared to have been as they ever ought to have been in the Kings of England many Laws have been made in several Parliaments for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution thereof and some of the Ecclesiastical Laws were enlarged altered and explained * 25 H. 8.19 The Statutes for Delegates upon Appeals †27 H 8 130. 32 H 8.7 Not long after two Statues for assistance of ordinary Ecclesiastical Jurisdiction and for the speedier recovery of Tithes in Courts Ecclesiastical * 34 35 H. 8 19. The like for the recovery of Pensions Procurations c. †1 Ed. 6. c. 2. In the time of Edw. 6.
having the said contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding solemnization cohabitation consummation and fractation as it becometh man and wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the Kings Ecclesiastical Iudge by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never been made any clause article or sentence in the said Statute to the contrary in any wise notwithstanding Provided alwayes and be it enacted that this Act do not extend to disannul dissolve or break any marriage that hath or shall be solemnizated and consummated before the said first day of Day next ensuing by title or colour of any Precontract but that they be and be deemed of like force and effect to all intents constructions and purposes as if this Act had never been had ne made any thing in this present Act notwithstanding Provided also that this Act do not extend to make good any of the other causes to the dissolntion or disannulling of Matrimony which be in the said Act spoken of and disannulled But that in all other causes and other things there mentioned the said former Act of the two and thirtieth year of the late King of famous memory do stand and remain in his full strength and power any thing in this Act notwithstanding Stat. 1 Eliz. 1. By these the inconveniency appeareth of taking away or altering an ancient long-settled Law practised long in all Christian Countries as this way which had it not been good probably the inconveniency and hurt of it had appeared in so long a time and the Law for the Oath Ex officio and Purgation is of like antiquity and practice in all Christian Countries without inconvenience or hurt thereby arising as yet that I ever could hear of therefore such Laws ought to be deeply weighed and considered of before they be repealed or altered And now that I am speaking of repealing and altering old Laws and making new I thought fit to close this Tract with some Notes of mine drawn up almost all of them in the time of the usurped Government and some after His Majesties restauration and communicated to the sight of some of Quality touching the repealing or altering of some old Laws and making new Some are already past and effected as that for the Lords the Bishops sitting again in the Lords House in Parliament and other things These I offer with all humility to be considered of if it shall by those in Authority be thought fit otherwise to be as unsaid Protesting that I retract as before any thing which is here mentioned that shall appear contrary to Gods Word His Majesties Prerogative or the Laws of the Land or the Just policy and government of any of His Majesties Dominions Touching Parliaments AS a Parliament well constituted and acting regularly Parliament proceedings conduces much to the happinesse of King and Subject so any exorbitancy or deviation therein of which surely all unbiassed men cannot but confesse we have had too much sad experience in the Long Parliament works the contrary corruptio optimi pessima In the time of the Long Parliament some as it were idoliz'd it even almost to an opinion even of Infallibility of which they have made too much advantage to the misery of King and People Some advised then that that great Wheel that great Court should have had its sphere of activity it s known certain bounds publickly declared and not have been like a great River prodigiously overflowing all its banks and bounds Such a Parliament acting regularly is' t not probable the Members thereof would not so much have thirsted to lengthen much lesse to perpetuate it They were called up to consult may not he that calls his Counsellor forbear consulting him when he pleases and dismisse him The extent of an Ordinance of Parliament Ordinance of Parliament having by some been tentor'd then even almost to Infinity might it not have been precisely circumscribed and the exact definition of an Ordinance given As also the just privileges of Parliament explicitely have been made known Privileges of Parliament that the Subject might not then have sworn or promised or protested to have maintained and observed them and yet could not possibly know what they were That due care should have been taken that they might have been observed and kept inviolable on all sides neither diminished nor scrued too high and both the Members of the Houses and the People to have had their just rights entire and for this purpose that that Protestation then put in by the Lords Spiritual the Bishops The Bishops Protestation with their Petition to have the force removed that kept them from the Lords House should have been well consider'd on and the right of Protestation in Parliament declared and maintained being a great privilege And whether after a just Protestation unjustly rejected and the Members kept out of the House by force that so protested and petitioned whether the other Members could then have proceeded further in the House In the late Kings time in the beginning of his Reign when the Earl of Arundel was imprisoned in the Tower about his sons marriage of the Duke of Lenox's daughter being of the Bloud Royal without the Kings consent the Lords would do nothing in their House till he was restored in regard he was committed onely for a misdemeanour and neither for Treason Felony nor breach of peace in which cases they then confessed a Member of Parliament in Parliament time might be kept prisoner The King none of the three Estates And the Lords Spiritual being one of the three Estates as 1 Eliz. 3. and elsewhere and the King being none of the three Estates the contrary whereof hath been falsly held but the Head and the Lords Spiritual and Temporal and the Commons being but Members and further the Lords Spiritual being one of the greatest Estates of the Realm as 8 Eliz. 1. Some doubted whether one of the Estates can destroy another and whether that come not near the contradicting that Axiom that the Parliament cannot be Felo de se whether that concerns not the Lords Temporal and Commons as well as the Lords Spiritual As for His late Majesties assent 't is known how far the prevalent power in both Houses then carried that and other things too to the misery of the Kingdom Who knows not in what condition the King then was forced to flye by reason of the tumults from Westminster to remoter places And as touching that Act of Parliament for their expulsion out of the Lords House it is not to be forgotten that when it was first brought into the Lords House it was rejected and ought not to have been brought in again that Session yet afterwards it was contrary to the order and course of Parliament brought in again when a great part of the Lords were absent if
on that subject entituled Tenenda non tollenda or the necessity of preserving Tenures in capite c. and if it should be thought fit still to continue the abolition of Wardships c. whether the Tenures notwithstanding should be continued and whether a fitter retribution to His Majesty should be made then by Excise of Ale c. I need say no more of this but let Mr. Philipps book plead for it And also if it shall be thought fitting Rates to be set upon some Commodities for the sale of them that upon many more commodities then are yet the known rate and value of what they should be sold for should by indifferent and knowing men be set down considering the great hurt done by selling many commodities at unreasonable rates upon some accidental straits in regard of some accidents of time place or persons and many imposing upon the unskilful and unwary buyer very often as is notorious demanding more the double the price they will take In forreign parts both upon books and other commodities fitting rates are by Authority set down whereby the seller may have a just gain and the buyer not be over-reached Certum quid is the great satisfaction to the Subjects as in Fees certain in all Courts so at least in many commodities Also if it be thought fit that in point of dignity and precedency About dignity and precedency a fixt certain plain rule might be set down which probably would take away much emulation and grudging and quarrels oftentimes amongst many if it were clearly once determined And amongst others if it were so determined who should have precedency the eldest son of him whose father was a Knight and the first Knight of the Family or the eldest son of him whose father was but an Esquire but the eldest son of a Knight Senior to the Knight father of the former or whose Grandfather or direct Ancestor from whom he is lineally descended and is eldest son and heir was a Knight the second conceiving it is his right in regard he is the direct descendant and heir to the Senior Knight And that if it shall be thought fitting no person that bore Arms against the late King or His Majesty that now is or had any pretended Commission or authority so to do shall own the Title of General Lieutenant General Major General Commissary General Colonel Lieutenant Colonel Major Captain Lieutenant Cornet Ensign or any other Title by reason of any such pretended Commission or Authority nor any person shall so call them by any such Title under pain of a great Mulct toties quoties to be inflicted both upon the person that owns such Title and on the person that gives it or so calls them Nemo ex delicto consequitur beneficium and so bad a cause ought not in any implicite manner to be approved and rightly considered 't is an infamy to the parties to be called so And also Against the Act of limitation of actions in some cases if it be thought fitting that in regard that many who took the Kings part in the late wars could not have their right of suing for their own just due debts owing them and contracted either before the wars or in the time of the wars in the Courts of Justice then in being so that six years were elapsed according to that Act of 21 Jacobi 16. touching limitation of Actions and so they are thereby excluded to their great impoverishment There should be an abrogation or suspension of that Act so as to give remedy in this case that the spoiled may have reparation or retribution of justice if not reward for his Loyalty And also Against multiplicity of Statutes upon one and the same subject if it be thought fit that where Laws are doubtfully penned they may be explained and where there are multiplicity of several Statutes touching the same subject some repealing part of a statute some enlarging and altering so that the true meaning of the Statute becomes difficult and perplexed that in such cases all the said Statutes several so concerning the same subject may be repealed and one plain and clear Statute thereof to be made as namely these several Statutes in the Reigns of King Edward 6. Queen Mary Queen Elizabeth King James and King Charles 1. touching the prohibition of eating Flesh in Lent and other Fish-dayes and concerning fasting-Fasting-dayes may be so repealed and made void and one Statute made clearly and plainly to comprehend all that is necessary upon that subject Touching Ecclesiastical Persons Courts and Causes SOme have wished if it were thought fit The Clergies Proctors in the House of Commons that now the Lords Spiritual the Bishops being restored to their right in the Lords House that the Clergy should have their Proctors to sit in the House of Commons if they desired it representing the body of the Clergy as they used to do till about Henry the sixths time or not long before as it was then used since which time it hath been disused Some have affirmed that a Clergy-man of competent temporal estate having in King James's time been chosen Burgesse for a Corporation was not suffered to sit there nor a Clergy-man to say Prayers there Nor will some yield they can vote to chuse a Parliament-man either in County or borough so little of representation have they and yet when in Convocation they give the King Subsidies their grant must be confirmed by Act of Parliament Anciently such care was taken that Bishops should be present in Parliament that in their absence their Chancellors were summoned to sit there Also if it be thought fit About augmentation of Vicaridges that whereas before the dissolution of Monasteries the Bishops had power to augment poor Vicaridges out of the Tithes of Impropriations so they are now commonly called though the true name is Appropriations the Tithes having been appropriated to some Monastery or Religious house or other before the dissolution and after that falling into Lay-mens hands who held them improperly living by the Altar and doing nothing there got the Nick-name of Impropriators and Impropriations which now holds good such is the tyranny of Custom in this and many other cases Or if there were no Vicaridge endowed the Bishops might endow one nay and go so far as to leave to the Appropriator which then was that Religious house to which it was appropriated who then thought themselves as worthy to be kindly used as a man would think our Lay-Impropriators can do now not much more then a 50. part of the Tithes or thereabout It seems hard that the Lay-Impropriator should have a matter of 200. or 300 l. per annum Against Mensals or more and the poor Vicar a matter of 20. marks or 20. Pounds or thereabout and hardest in Mensals that is as it was usual when a Religious house could procure from the Patron the right of Presentation to some Living near their Monastery whither one of their
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 As also that trayterous distinction of the Spensers Spensers Treason 'twixt the Kings Person and Office by two Acts of Parliament declared Treason yet in these late times maintained by too many Goodwins book for the justification of the murther of the late King and many other of that kind Goodwins book justifying the murther of the King 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 Mr. Bucks book of Richard 3. 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 Institutes of the Law of England Sir Edw. cooks Writings concerning High Treason 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 § 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 Also it was advised Illegal and seditious speeches 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 As also if it be thought fitting The illegal Preface to the Propositions at the Isle of Wight 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 As also if it shall be thought fitting Rectifying of translation of some words 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 about the time of His Majesties coming over Illegal Declaration 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 As also The Printing-press 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 As also A body of the Law to be framed 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
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 If we look back to the Long Parliament Proceedings of the House of Commons 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 House 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 usually 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 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 Band 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