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
might not have done before the year of our Lord 1639. or to abridge or diminish the Kings Majestics Supremacy in Ecclesiastical matters or affairs nor to confirm the Canons made in the year 1640. I say upon these words some are ready mistaking questionless the words and meaning of that Act to renew that old exploded Opinion or rather groundless Fancy That a several Royal assent to the executing of every particular Canon is required Hereto Doctor Cosin answers That admitting this were true then all the other opinions of those that oppugn the ordinary Jurisdiction Ecclesiastical stand in no stead and might be spared because this would cut off all at once For none that exercise ordinary Jurisdiction Ecclesiastical have it in particularity which by the oppugners seems to be meant otherwise then by permission of Law to every of their proceedings and impossible were it by reason of the infinity of it and troublesomness to procure such particular assent to the execution of every Canon His Majesties Delegates when Appeals are made to His Majesty in Chancery would signifie nothing could not exercise the power to them delegated by reason of the want of such particular assent and it is a gross absurdity to grant as even the Oppugners and Innovators do That Testamentary and Matrimonial causes are of Ecclesiastical cognizance to say nothing of the rest of Ecclesiastical causes and yet cannot by reason of this want be dispatched nor can be dealt in by any other authority according to any Law in force This would speak a defect in the publick Government that the Subject should have a right but no likely or ready mean to come by it and great offences by Law punishable and yet no man sufficiently authorized to execute these Laws Since the abrogation of Papal pretended Supremacy when the ancient rights of the Kings of England of being Supreme Governors over all persons within their Dominions as well in all Spiritual or Ecclesiastical things or causes as Temporal and that no forreign Prince Person Prelate State or Potentate hath or ought to have any jurisdiction power superiority preeminence or authority Ecclesiastical or Spiritual within this Realm and so forth as in the Act and the Oath Since these rights were as it were ex postliminio restored and declared to have been as they ever ought to have been in the Kings of England many Laws have been made in several Parliaments for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution thereof and some of the Ecclesiastical Laws were enlarged astered and explained * 25 H. 8.19 The Statutes for Delegates upon Appeals †27 H 8 130. 32 H 8.7 Not long after two Statutes for assistance of ordinary Ecclesiastical Jurisdiction and for the speedier recovery of Tithes in Courts Ecclesiastical * 34 35 H. 8 19. The like for the recovery of Pensions Procurations c. †1 Ed. 6. c. 2. In the time of Edw. 6. in a Statute since repealed by Queen Mary a great number of particular causes of Jurisdiction Ecclesiastical are there by the way rehearsed that Ordinaries and other Ecclesiastical Judges might and did then put in execution So 1 Mar. c. 3. 1 Eliz. c. 1. 5 Eliz c. 23. 9. That Perjury or Subornation in a Court Ecclesiastical shall and may be punished by such usual and ordinary Laws as heretofore have been and yet are used and frequented in the said Ecclesiastical Courts Which proveth the usual practice of Jurisdiction Ecclesiastical hitherto used without any special assent to be lawful So 13 Eliz. c. 4. c. 10. and many more in the same Queens time and King James and King Charles the First that blessed King and Martyr I say many are the Laws that have been made for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution of it and some of these Laws were enlarged altered and explained But never was there any Law Custom or Act of Parliament that required a several Royal assent to the executing of every particular Canon Many are the reasons which Dr. Cosens gives in the first Chapter of his Apology against that particular Assent wherein he shews his great candor and ingenuity and desire to give abundant satisfaction to all Opponents though never so unreasonable that were it not as clear as the Noon-tide light that no such particular assent is needful some might think that he fear'd his cause and be ready to say that Defensio nimis operosa reatum quasi arguit But touching the validity of the Ecclesiastical Laws there needs I conceive no more be said then what is expressed in that Act of Parliament 25 H. 8.19 the Ecclesiastical Laws that were in use and practice before that Statute are thereby established thus Provided that such Canons Constitutions Ordinances and Synods Provincial being already made which be not contrariant nor repugnant to the Laws Statutes and Customs of this Realm nor to the damage or hurt of the Kings Prerogative Royal shall now still be used and executed as they were before the making of this Act untill such time as they be viewed c. by the 32. persons mentioned in that Act which is not yet done The Ecclesiastical Laws which have been made since that Act and all that ever hereafter shall be made so long as that Statute stands in force the requisites in that Act being observ'd are thereby I conceive confirmed or to be confirmed The Submission and Petition of the Clergy mentioned in that Act is That they would not enact or put in ure any new Canons c. in their Convocation without the Kings Royal assent and authority in that behalf There it is said That the Convocation in the time coming shall alwayes be assembled by authority of the Kings Writ and that the Clergy must have the Kings most Royal assent and licence to make promulge and execute such Canons Constitutions and Ordinances Provincial and Synodal else they may not enact promulge or constitute any such Canons c. And this course hath ever since been observed Every Convocation called by His Majesties Writ and the Clergy had especial license from His Majesty to enact such Canons c. and to execute them The Provision following being observed which is this Provided that no Canons Constitutions or Ordinances shall be made or put in execution in this Realm by authority of the Convocation of the Clergy which shall be contrariant or repugnant to tho Prerogative Royal or the Customs Laws or Statutes of this Realm any thing contained in that Act to the contrary thereof notwithstanding If any be put in execution contrary to this Proviso and contrary to any after-Acts of Parliament whereby His Majesty hath further power acknowledged in causes Ecclesiastical then 't is illegal but that is much sooner alledged than proved The particular Ecclesiastical Laws in force have by Dr. Cosens and others been sufficiently demonstrated I humbly conceive In case any Jurisdiction
canses of Defamation Matrimonial causes Tithes if not Legacies also and several other branches of Ecclesiastical Jurisdiction were all along dispatched at Common Law or Chancery contrary to all Law and equity Probate of Wills and granting of Letters of Administration with all the connexes and incidents thereunto belonging and from thence arising were by Commission from that usurping Power committed to a few persons of their own gang at London so that the Subjects from all parts of the Kingdom were to prove the Wills of the dead and take Administration of Intestates Goods passe their Accompts and act the rest concerning them there before them at London The Executors and Administrators must either come up thither personally to them to take their oaths or else have Commissions down into their Countries to do it and the charges to the Subject for such Probate of Wills Letters of Administration and the rest whether they went up themselves to London to dispatch them or more especially if they sent up by others thither to have them done as most commonly they did and not scare one in forty did otherwise and it was the cheapest way probably for them so to do in regard of the charges to send up by others that also had other business of their own there Yet I say by these means and the great Fees taken the charges for proving every Will taking Letters of Administration and the rest came ordinarily to about six times sometimes much more as much as was taken and due before these troublesom irregular times by the Ecclesiastical Judges and Officers to whom of right they appertained that is the Fees and charges usually came to 50 s. or 3 l. or 4 l. or 5 l. and sometimes to 6 l. or more Had such a Grievance and so general throughout the Kingdom reigned in the time of Kingship when faithful and peaceable men acted according to the known Laws of the Land surely the fall of Nilus to the Cadupes would not have made such a noise as our factious Stentors would have then bellowed out And too much of the grievance still remains such Wills Inventories Bonds so Administration with the dependancies thereupon remaining still at London whether the Subject when they have occasion to see or use any of them or sue for any thing concerning them must either personally repair or send for them or sue there which is well hoped will by this happy Parliament be remedied and a course taken that they may be transmitted into every County whence they came for the Subjects ease and that they there may sue upon occasion for any Legacy or other matter concerning them Should it be demanded at whose charge this should be done the dictate of Reason I humbly conceive answers it Qui commodum habet idem onus habere debet And thus for no small number of years our Places our Livelyhoods were unjustly taken from us onely for our Loyalty whilest others that did it gloried in their shame took our bread out of our mouths and did eat whilest we fasted and well nigh starved and yet such is the unsatiablenesse and unreasonablenesse of some of our causelesse persecutors that they could well be content we should still continue in the same oppressed and miserable condition And when His Majesty was happily restored for which all thanks praise and glory be ever rendred to the God of miracles and mercy the Civilians as they were as is before touched the first and earliest sufferers so were the last not a small time after the most reverend Bishops and especially after the rest of the Loyal Clergy were restored that were re-admitted to their places and Offices and when that was done still for a considerable time they were but precarious and of little use or value as before till the doubt touching coercive power was by Parliament taken away which was not till the later end of Summer 1661. and then with the Proviso against the Oath Ex officio and Purgation which not a little diminishes these Offices besides upon reasons known the forbearance of the full execution of such Offices as yet so far as by Law they might execute them is considerable Some Civilians who in contemplation of their natural duty and of their Oaths of Allegeance and Supremacy served His Majesty in his wars against his then rebellious Subjects thereby lost all their Fortunes both real and personal that their enemies could find and certainly never were more sedulous and rigid scrutators or more rapacious Harpies that would not let scarce any thing passe their clutches Non fuit Autolyci tam piceata manus And such suffering Civilians both so in their Livelyhoods their quotidianum and their persons and liberties very often humbly hoped when a time of re-settlement should come that they should have been looked upon as well as others of the same profession that sate still underwent none of these dangers or hazards nor suffered perhaps any thing or but little in their Estates or otherwise especially in comparison with the others or as well as others that had some competency by reason of practice under the usurped Powers as to take and execute Offices under them of great benefit and I had almost said that way if not otherwise also immediately acted against His Majesty and his Authority contrary to their natural duty and Oaths of Allegeance and Supremacy To plead before the usurping powers even after the end of the war it was not at least for a long time permitted to those Civilians of the Kings party especially those that had served him in his wars here For my own part though I could never satisfie my Conscience so far as to plead before any of the usurped powers not so far to acknowledge their power though some years before His Majesties happy restauration I was both here and in Ireland invited and desired to do it yet I would not do it nor ever did that way or any other give any acknowledgment of their power or touch any of their Pitch more then by a forced acquiescence and sitting quiet and still when I was constrained so to do Yet I say I am far from censuring any of these worthy and learned persons of either Robe that did either agere or defendere before that usurping power by way of pleading I would not be mis-understood as to be thought so much as to think amisse of the noble Profession or Professors at Common Law both which I love and honour and do very well know and have heard many of them suitable to their Births Breedings and loyal and generous Minds commiserate the oppression of the Profession and Professors of the Civil Law and wish that the proceedings in the Ecclesiastical Courts by the Oath Ex officio and Purgation might continue as it was before that last Act that took it away even for the justice of it as they conceive as also lest it might seem at leastwise in some mens judgments to savour of a kind of partiality
they were taken and of their actings and not to remain as they do in the view of the owners perhaps purposely in despight exposed to such publick view This works contrary to His Majesties pious intention and that Act of Oblivion it continues does not abolish the memory of our former divisions when the spoiled shall see as a continual Eye-sore their proper goods in the possession of the spoiler whilest the spoiled for want of them perhaps is ready to starve and perhaps the spoiler makes his livelyhood out of them if not steps of preferment too The Heathen Poet could say of the Civil wars of Rome Bella geri placuit nullos habitura triumphos But surely this looks like a continued triumph after the Warre Reparation to persons spoyled Some have wished that that motion in the last Parliament or Assembly or Convention that ended in December 1660 made in the Lords House might be renewed that the spoyled party might at least in some good measure be repaired by some publick Tax made for that purpose and due consideration to be had of such suffering spoyled persons that constant never-changing Loyalty may have some encouragement and comfort besides that of a good conscience Touching the Long Parliament Some have wished that it might have been by Act of Parliament declared if thought sic that the Long Parliament notwithstanding that Act for the continuing of it till it should be dissolved by Act of Parliament was dissolved or declared void and null from such a day as should have been by advice of the Judges and learned in the Laws agreed upon And that also if thought fit consideration should have been had particularly from what time that dissolution annulling or making void should have commenced whether from the time that His late Majesty was driven from the Parliament by tumults and riots which as is known some if not many Members especially of the then Commons House in that Long Parliament that took up Arms against the King were so far from causing to be suppressed though His Majesty desired it that they were set on by them as is notorious And also if thought fit that if not from that time yet from the time they voted to live and dye with the Earl of Essex by them voted to be their General against the King and upon the matter causing those Members to leave the House that would not vote with them And whether that His Majesty calling them afterwards a Parliament as they alledged when they were in Arms against him though perhaps His Protestation to the contrary was entred in the Council-book could any wayes entitle them to a lawful Parliament And also if thought fitting that it should have been by Act of Parliament declared that any Member of Parliament offending against 25 E. 3. in raising or bearing Arms or maintaining them against the King ipso facto ceases to be a Member of Parliament for that a Rebel and a Parliament-man are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And also if thought fit that the Judges of the Land consulting together should have declared as they did in King James his time in that case about Watson and Clerk the Seminary Priests that the Kings Coronation was but a Ceremony and that without it the King was a complete King that that Long Parliament was dissolved from such a day as they should have found by Law that it was dissolved or annulled whether it was from the time of His late Majesties expulsion from his Parliament as before or from the time of voting to live and dye with the Earl of Essex or of their Votes of no further addresses to the King who called them to consult with him whether they did not then openly dissolve themselves by refusing to consult with him or from his death when they could consult no more with him And also if thought fit that it should have been so declared and enacted that though the King had passed an Act that the Parliament should fit till they were dissolved by an Act of Parliament and that if it had been expressed that it should be so notwithstanding that His Majesty should dye in the interim yet such an Act could not bind him nor his Successor especially when in that Act for continuing that Parliament till by such Act it should be dissolved there is no such mention that it should continue after his death that called it and that the King cannot be concerned at leastwise concluded any wayes in any Act of Parliament to his damage prejudice or diminution of his Royal Prerogative or Authority except at least he explicitely and freely consent to it be specially comprized and named in that Act to that purpose or whether he can though he so consent it following plainly that if by taking up Arms or bearing Arms against the King a Parliament-man ceases to be so nor can sit any longer in the House Then in that case none ought truly to be accounted secluded or excluded Members but onely these that would not then vote to live and dye with the Earl of Essex nor would assent to the raising of arms against the King but thereupon left the House or were expelled thence either by the Votes of the rest or by menaces just fear that might incidere in constantem virum or by tumultuous force so that if the Parliament if not by the reasons aforesaid yet at least by the death of the King being dissolved as to think the contrary is most void of reason or truth if I say it had not been so dissolved then those secluded or excluded Members they onely ought to have been restored and none of the rest that acted against the King by taking up Arms against him or acting against him ought to have been restored Such offended against the Act of 25 E. 3. raising Arms against the King c. counterfeiting or making a new Great Seal c. and their being Members of Parliament being as before inconsistent and for the void places His Majesty to issue out Writs for free legal and new Elections The keeping of the Records in the Tower And also that the keeping of the Records in the Tower should be in the hands of a known trusty Loyalist and none other in regard of the danger of imbezelling or corrupting them by any person of other principles not affected to Monarchical government by Law established to the great damage of the King and his Subjects The Militia And also that the Militia and all Offices and places of trust and concernment for the peace and safety of the Kingdoms and for the prevention of future Faction Sedition and disturbance of such peace and endangering such safety should be committed onely to the hands and especially for a competent space of time as by such free and legal Parliament or by His Majesty shall be agreed upon of known experienc'd Loyalists and not to any that may be reasonably presumed or suspected to be otherwise That rule may somtimes hold and not
Commissary or any other Spiritual or Ecclesiastical Iudge Officer or Minister or any other person having or exercising Spiritual or Ecclesiastical Iurisdiction to tender or administer unto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendered 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 Vsage heretofore to the contrary hereof in any wise notwithstanding 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 Iudge Officer or other person or persons aforesaid any power or authority to exercise execute inflict or determine any Ecclesiastical Iurisdiction 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 enacted 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 is required is confuted The validity of the Ecelesiastical 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 Fathers the Laws Canon and Civil and the Laws of the Land allowing and warranting them The like practice at Common Law and at Geneva and other places pretending strict Reformation p. 24. Chap. V. That it is consonant to Gods Word to give such an Oath Ex officio or otherwise p. 28. Chap. VI. That the opinion and practice of the Primitive Christians and the Fathers of the Church was to administer such Oath Ex officio or upon Accusation and for Purgation Canonical with the practice at Geneva p. 33. Chap. VII That the like practice touching these Oaths is and was in all Forreign Christian Nations and other Nations not Christian guided onely by the Light of Nature p. 37. Chap. VIII That by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that Oath according to the Canon and Ecclesiastical Laws p. 39. Chap. IX That Oaths administred to parties touching matters damageable criminal and penal to themselves are urged and required by Temporal Courts and by the Laws of the Realm p. 41. Chap. X. The inconveniences and hurt that probably may follow by the forbidding the ministring of an Oath Ex officio or any other Oath whereby such person to whom the same is tendered 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 Praise of the Civil Laws Civilians first and last and greatest Sufferers Amity 'twixt both Robes His Majesties and the Lord Chancellors savours to Civilians TOUCHING The OATH EX OFFICIO AND CANONICAL PURGATION CHAP. I. The endeavours of the Innovators to change the course of Ecclesiasticall proceedings That stupendious Fanatick Hackett his fearful end Mr. Cambdens judgement 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 Ecclesiasticall 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 FOR many years together now last past some men have very earnestly endeavoured to have taken away or at leastwise have much alter'd the proceedings in the Ecclesiacal Courts of this Kingdom used according to His Majesties Ecclesiastical Laws touching the Administration of the Oath ex officio and at the instance or promotion of a party accusing or stirring up the Judges Office to any party accus'd or call'd or enquired after by the Judge Ecclesiasticall ex officio or otherwise whereby as they phrase it he must confess or accuse himself and so render himself liable to penalty or censure In the Reign of Queen Elizabeth they prosecuted it vehemently if not violently and as before that time some Anabaptists in Germany had done the like in such Cases Of their practises that way here that most Faithful Learned and Grave Historion of ours Mr. Cambden gives us an account in his Annals of the Reign of Queen Elizabeth printed at Leyden in the Low-Countries 1625. It is in the year 1590. After he hath there given a Relation of that stupendious and blasphemous Fanatick Hackett of his beginning how illiterate insolent fierce and revengeful he was that meeting one that had been his School-Master an ingenuous person under a colour of embracing him bit off his Nose and the poor miserable deformed man beseeching him to give it him again that whilst it was green and fresh he might sow it again to his face he would not do it but like a dogge swallowed it down and so averse was he to all piety that that heavenly Doctrine he had heard in Sermons he made sport with it with his pot-Companions on the Ale-benches Afterwards when he had prodigally wasted his Estate which he had got with a Widow whom he had marryed on a sudain he claps on the vizard of most specious sanctity is wholly taken up in hearing Sermons reading the Scriptures
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
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 Lev. 5.1 but he goes further with a most solemn Adjuration in those dayes used for an oath the Hebrew word signisying both and being translated sometimes juramentum and sometimes adjuratio Josh 7.9 Son give glory to the Lord God of Israel c. albeit the punishment was capital Ezra 10. â— Ezra adjured the Chief Priests c. Calvin in his Institutions gathereth 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 Deut. 21. That their hands have not shed this bloud nor their eyes have seen him that shed it 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 Levit. 5.1 If a soul or a man shall have sinned and have heard the voice of 〈◊〉 Adjuration or Oath c. That which is here said if he haâ—… heard the voice of an Oath the Geneva Translation offereth it thus in the Margin as if it were nearer to the Hebrew â—…en the other in that Text viz. If the judge hath taken an 〈◊〉 of 〈◊〉 other When a man delivers money or stuff on trust Exod. 22. to be kept by his neighbour if it happen to be imbezelled away and the thief be not certainly known or found by the Law of God he 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 A sacrifice of Atonement for such a sin of Perjury is prescribed Ibid. v. 10. If any do sin saith the Lord and deny unto his neighbour c. Num. 5.14 If a man be moved with a jealous mind against his wife she is not onely to be charged with an oath but to have further tryal to drink the bitter waters Jâ—r 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 examineth Gehazâ— his servant c Gen 43.3 Joseph in Aegypt gave an oath to his brethren d Ezek. 7.13 Zedckiah took an oath of Subjection and is blamed and punished for breaking of it e 1 Sam. 21.2 The oath given to the Gibeonites was to be kept and the violation of it punished For the manner of proceeding or the cause of questioning we see many instances First in flagranti crimine * John 8.4 if a party be taken in the manner as we say or the fact is manifest as f Num. 25 8 Zimri's was g Deut. 21.1 Or though the fact be manifest the person committing it is unknown or the question is of the person the fact being unknown as in h John 7.18 Achans case Or by indicia suspected signs so i Gen. 3.8 Adam hiding himself So against k Gen 4.6 Cain Abel not appearing Adam impeacht Eve and Eve the Serpent and both were punished upon it Or upon infamy and cry l Gen. 18.20 The cry of the Sodomites being great I will descend saith the Lord. And such kind of Enquiries are made both in the Law m Deut. 17.4 If a report shall come to thee or thou shalt hear as also in the Gospel as against the incestuous person n 1 Cor. 5.1 It is reported Or by suggestion or complaint as in o Job â— 11 Jobs cause where the Devil was Accuser Joseph onely upon suspicion gave his brothers the oath Evangelical denunciation as Mat. 18.7 when Church or State are in danger as in the Valley of Achor that is against the troublers of Israel so signifies the word Achor When Peter and John were examined in the great Council Acts 4.7 By what power or in what name they had done that miracle Peter full of the Holy Ghost answered plainly and truly though it might have been capital to him What spirit are they of who being required by lawful Authority to answer in matters not capital yet will not answer at all for upon a mans own confession judicial though not upon oath he may be equally convicted Acts 6. In the proceedings against St. Stephen there were no Accusers in truth but those who by Subornation denounced him to the Priests and who are twice-called witnesses because they deposed against him yet he refused not to make answer though capital to him Acts 22. When the Captain asked St. Paul whether he were not that Aegyptian that made a Sedition c. he answered directly and denied it Likewise the same Saint Paul in all other his conventings before Authority mentioned in the Acts Acts 4.25 c. even at the suit and accusation of a party refused not particularly and truly to answer to all that was objected And all this is done to the sifting out truth and punishing crimes either truly so or at least thought to be so and criminous persons are questioned as well of the fact as circumstances or fame a Gen 3.9 Hast thou eaten of the fruit of the forbidden tree So the Princes questioned Baruch about Jeremiahs book b Jer. 26.17 Tell us how didst thou write these words So c Ezra 10.11 Esras examined the questioned persons concerning their own fact So the d Acts 23.20 High-Priest having committed Saint Paul examined him further for oftentimes Accusers as the Heathen could observe fall off all cannot some will not accuse what then many crimes being the deeds of darknesse cannot be e Eph. 5.11 revealed f Prov. 16.5 Because hand is in hand and they will not bewray themselves Because the name of Doeg sounds harsh and to come forth to accuse a man is accounted poor and odious a matter of cost danger and g Prov. 25.8 Infamy must Villany therefore be hid and scattered abroad and get strength till they break out to the destruction of the Commonwealth Or because none can or will for 't is all one whether one will not accuse or cannot accuse therefore it is
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