that in a little space of time it got footing also with the other sciences in France Spain and Italy and in all the Western part of Europe where it has been in greatest use and highest account as well in studies as in Judicatories ever since to this very age of ours Nay the Civil Law after it was once restored and taken notice of having long lain hid and concealed drew the hearts and studies of men after it in such wonderful manner and grew to that mighty eminence and power that the most were intent upon the study of it and but few in comparison lookt after any other learning Giraldus of Oxford charges it as a fault upon the students of his time and tells that one Martin a Clergy-man did sharply reprove the University of Oxford at a publick congregation for devoting themselves wholly to that study neglecting all other learning saying quòd leges Imperiales reliqua scientias omnes suffocaverant the Imperiall Laws had swallowed up all the other Sciences Also Daniel Morlaes in the same Century being in Henry the seconds time writes that the Law was so much studied in Oxford quòd pro Titio Seio Aristoteles Plato penitus oblivioni traderentur that Titius and Seius were minded altogether and Aristotle and Plato were quite forgotten And Roger Bacon that had made himself eminent in all the sciences did upbraid the Bishops of the same age for minding Divinity so little adding quòd cavillationes juris defaedarent Philophiam the sophistry of the Law would corrupt the true Philosophy Stephen Langton Arch-Bishop of Canterbury took up the same complaint in Henry the thirds time against the Monks of his time qui relicto agro veri Booz nempe sacra Scriptura ad alium agrum id est scientiam secularem pro cupiditate terrena transirent who through greediness of filthy lucre which was then to be gotten chiefest from the Law did forsake the knowledge of the Scriptures and hunt after secular knowledge The like lamentation was made by Robert Holcot of the order of the Praedicants in Northampton-shire in Edward the thirds time leges canones saith he istis temporibus innumerabiliter sunt foecundae concipiunt divitias pariunt dignitates ad illas confluunt quasi â—ota multitudo scholarum his diebus The Laws and Canons are immeasurably profitable in these times riches and honours spring from thence almost the whole number of Scholars resort thither for indeed the greatest professours in Theologie that were did so little content themselves with that one way of advancement that they did frequently assume degrees in Law to fit and qualifie them for other preferments also But sure it is these complaints and objurgations of private men could so little keep this luxuriant growth of the Law from spreading that the very Edicts and Decrees of Princes could not bring it down Matthew Paris in his History upon the year 1254. and in the Additions pag. 883. Edit Noviss makes mention of a constitution made and published by Pope Innocent the fourth by which it was ordained that no professour of the Laws should be promoted to any Ecclesiastical dignity in France England Scotland Spain and Hungarie and that from thenceforward the Imperial Laws should not be read in those dominions if the Kings and Princes so thought fit Pope Honorius the third forbad the reading or teaching of the Civil Law in Paris in the year 1220. i Ca. super spetuta ext de privileg Those Popes thought that the restraint of the Imperial Law would be a ready means to bring into request the Canon Law which was as it were but new set up Upon design therefore to bring into credith their own Ecclesiastical Law rather then out of any dislike of the Civil were those prohibitorie Decrees made however they very much failed of that effect that was intended them for we may have observed to this very time that all those Christian States that do acknowledge the Popes authority and power have so equally divided their respect between both those Laws that they have appointed to each their proper function designing the one to be serviceable to Civil matters the other to Ecclesiastical and so by such moderation have done very equal right to both At the same time that the Civil Law was publickly read at Bononia by the means of Lotharius the second it was brought into England by Theobald the Arch-Bishop of Canterbury and being publickly read in Oxford by Vacarius it grew so general a study and other learning was so much neglected upon it that King Stephen incensed thereat sent forth a peremptory command that it should be read in England no more that Vacarius should forbear to teach it any further nor that it should be lawful for any to keep any books of the Roman Laws by them Sed parùm valuit Stephani prohibitio nam eò magis invaluit virtus legis Deo favente quò eam amplius nitebatur impietas subvertere sayes Mr Selden k Dissertat ad Flet. cap. 7. parag 6. But King Stephens prohibition did prevaile but little for the power of the Law God prospering the same waxed the more vigorous when malice did most strive to destroy it Charles the ninth and Henry the third of France did also by sending forth their Edicts forbid the Civil Law to be taught in Paris or that any Degrees should be taken in that faculty Philip the fair and the Parliament of Paris anciently did straitly charge that no man should dare in any pleading to urge or cite the Roman Law against a special Law of the Nation In Spaine it has been made no less then a capital crime to offer or alledge the Roman Law as compulsive or binding And surely it is a high indignity to any Prince to have any forreigne Law set up against and to beat down his own And therefore in the erection of Universities in France the Kings have alwayes declared that their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the subjects should be any way bound thereunto lest they should seem to derogate from the Laws of their own countrey by advancing the Laws of strangers l Bodin de rep lib. 1. ca. 8. These and such like edicts declarations of Princes have been alwayes of full force and power as most justly they ought to be to limit the vast and universal power of the Civil Law and to keep it from getting above and prevailing over the Laws and Customes of their own Territories for that were no less then to worship two Suns in one and the same firmament and to call in the Roman Sovereignty which was long ago cast off But that the Civil Law should not be studied publickly taught no degrees taken in it nor cited in their Judicatories in a ministerial and subordinate way to their own municipal Laws and Customes or that
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.
extend FRom what has been cited out of Mr Selden it does appear that there is as much granted by Mr Selden to the Civil Law as ever was challenged by any Civilian or ever ascribed to it by any or that any can wish to be granted to that profession in any Nation He in effect acknowledgeth that when the use thereof came to be renewed in Europe with other learning it was found to be so rich a Treasury of reason judgment and true natural equity and so useful for all matters that respected Civil society and government that by the knowledge and direction of the Civil Law and the rules and principles thereof they knew how to supply with resolution such cases as their National Laws had not made any provision at all in or if they had but were dark or intricate this would help to explain and illustrate them which neither common reason nor any other humane learning would enable them to do The Universities have therefore since made it their common study and commonly given degrees in it and have sent forth the professours thereof into all Tribunals to be the minsters of right and justice there till now at last it is grown to be a common profession throughout Europe And though the original authority which it had in the Roman State is quite worn out no State being now subject to the Roman Sovereignty yet Mr Selden does admit it to be entertained for a binding Law by ordinance in some places that stamp that authority upon it which of it self it hath not in others usually observed as a Law by custome and practise but where it passes not for Law neither way there the reason and wisdome thereof prevailes and every man suffers himself to be convinced thereby non vi necessitatis sed vi rationis not forcing the will as a Law does but as by reason powerfully working upon and at last controuling the understanding Thus far goes Mr Selden himself and by no Civilian has a greater latitude then this been ever given to the Civil Law For what King James spake to his Parliament in the year 1609 touching this matter That there was no Kingdome in the World not onely Scotland but not France nor Spain nor any other Kingdome governed meerly by the Civil Law but every one of them hath their own Municipal Laws agreeable to their customes as this Kingdome hath the Common-Law we all unanimously own to be true And what he told them of Scotland in particular in the year 1607. may be as well and as truly spoken of all the States in Europe If a man saith he plead there that the Law of the Nation is otherwise it is a bar to the Civil and a good Chancellour or President will oftentimes repel and put to silence an argument that the Lawyers bring out of the Civil Law where they have a clear solution in their own Law So as saith he the Civil Law in Scotland is admitted in no other cases but to supply such cases wherein the Municipal Law is defective This is generally reported by others never questioned by our selves For we are of opinion there is no people in the World governed singly by any one kind of Law whatsoever nor indeed can be much less can any State be totally governed by the Roman Law but that there must needs be a superadded and a peculiar Law especially as to government suiting with the climate it self the nature and manners of the people the fashion and form of publick actions divers accidents of the time and sundry other occurrences Nay we often see it fall out that some certain Laws that are specially made for a people and at their first ordaining are found to be most excellent and very wholesome Laws yet in process of time through alteration of things and the very persons themselves for which they were originally made it is as great wisdome and as necessary to change them and quite take them away as it was at first to devise them It is no wonder therefore that divers parts of the Civil Law that were accommodated to the nature of the Roman people onely and the usages then in being should prove incongruous to the men and to the affaires of this present world which is of a clean different face and nature For instance A Roman subject was not such a supreme moderator amongst his Children nor such a free disposer of his own estate as that he could make his Will thereof as he pleased preferring one childe and excluding another or parting it too unequally amongst them or gratifying some stranger without remembring any of them If therefore a childe were quite left out of his fathers Will or were especially disinherited but without any cause mentioned or upon such a cause as the Law did not allow of or if upon a legal cause yet not such as was true in fact the Will was void and null e Wesemb parat Dig De liber posthum The just portion or share that every child might expect from his father if he made a Will and which he could not give from him without lawful cause was if there were but four children in all or under an equal share in the third part of his whole substance both Land and goods for at Civil Law they both came under one reckoning and went one and the same way without any difference but if there were more then four children then a full half of the whole estate was equally shared amongst them all f Novell De trient semist parag haec nos If less was given to any child then this just proportion or if it were clogg'd with any condition or time of payment whereby it could not come presently and freely to him the Will was not absolutely void g L. omni modo Co. de inoffic testam but a complaint might be brought to restore him to his just and equal share and to have it presently and absolutely without condition incumbrance or day for payment given h L. Quoniam in priorâ—bus Co. De â—noffiâ— testam But in those Nations and Countreys where the subjects are such free and absolute propietaries of all the estate they have that they can dispose of the same how they will even from their own children and to them in what inequality they will these tender and indulgent dictates of the Civil Law are useless and unsuitable Those Titles then and constitutions of the Civil Law that treat on that subject Dig. Co. De lib. postum haered inst vel exhaered De exhaered Lib. De Inoffic testam are not capable to receive any practical use or application in those Territories Again the greatest punishment that the Romans inflicted upon simple theft was to pay four-fold where the thief was taken in the act it self or at least seen and cried out upon before he got out of sight i Cuiac lib. 11. obs 58. or if otherwise the theft was not so manifest 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 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
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.
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 Desensio 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 execrated 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 tht 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 King 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 Constuurions 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 the Prerogative Royal or the Customs Laws or Statutes of this Realm any thing contained in that Act to the contrary thereof notwithstanding If any be put in execution contrary to this Proviso and contrary to any after-Acts of Parliament whereby His Majesty hath further power acknowledged in causes Ecclesiastical then 't is illegal but that is much sooner alledged than proved The particular Ecclesiastical Laws in force have by Dr. Cosens and others been sufficiently demonstrated I humbly conceive In case any Jurisdiction Ecclesiastical or Civil within this Realm be not derived or claimed from the Crown as to the execution of it at least then the former objection were of force but another Act of Parliament 8 Eliz. c. 1. shews the contrary sufficiently where all Ecclesiastical Jurisdiction is acknowledged United to the Crown as there fully and that very clause 1 Eliz. 1. together with His Majesties Letters Patents directed forth for confirming Archbishops and Bishops is brought in the preamble thereof as a strong proof without scruple or ambiguity that the authority and jurisdiction by the Clergy executed is thereby given them from Her Majesty This also were there nothing else were sufficient to entitle them the Kings Majesties Ecclesiastical Laws as well as other Laws are called the Kings Majesties Laws But they are up and down in the Acts of Parliament called the Kings and the Queens Ecclesiastical Laws 1 Eliz. c. 2. 5 Eliz. c. 25. 25 H. 8.27 c. and even by the Note gatherer that great oppugner against whom the Doctor writeth they are called the Ecclesiastical Laws of England And in this late Act above mentioned they are called the Kings Majesties Ecclesiastical Laws Yet for executing of these Laws by the Ecclesiastical Judges what out-cries were made against them especially in the beginning of the late Long Panliament by His late Majesty of blessed memory called the Black Parliament Summa imis miscendo and what favours were then afforded to those Boutefeu's as we have since had sad experience of them God grant we may be cafeful of them for the future I am unwilling to recite Ecclesiastical Judges are not onely tyed by their offices and * Canon 117. Canon Constitut 1604. Oaths but at least in some particulars for which they have though most unjustly been much clamour'd against are most severely by Act of Parliament charged to see the execution of if not of others too yet of one especial Ecclesiastical Law for their care wherein some of them have been well-nigh ruined that is that according to that Act of Parliament 1 Eliz. c. 2. For uniformity of Prayer and Administration of Sacraments every person should diligently and faithfully resort to their Parish Church or Chappel where Common prayer and such Services of God shall be used upon every Sunday and other dayes ordeined and used to be kept as Holy-dayes and then and there to abide orderly and soberly during the time of Common prayer Preaching or other Service of God to be used and ministred c. Then follows thus And for due execution hereof the Queens most excellent Majesty the Lords Temporal and all the Commons in this present Parliament assembled doth in Gods name earnestly require and charge all the Archbishops Bishops and other Ordinaries that they shall endeavour themselves to the utmost of their knowledge that the due and true execution hereof may be had throughout their Dioceses and charges as they will answer before God for such evils and
Lords House at first Could the Houses especially the Commons House then have been brought into such due order as not to act extra spheram activitatis suae 't is well to be hoped they would not as above have been desirous to lengthen or perpetuate that Parliament when they can as by right repeal no old nor make no new Law nor tax the Subjects estate nor make Ordinances to have the force of Laws without His Majesties assent King Henry the Eighth suffered the Houses of Parliament in Ireland for a matter of two years or thereabouts to continue petitioning him to dissolve them and dismiss them home which he would not do till he saw cause Though this is not in his commendation yet hereby the just power of the King appeared and the right of his Prerogative which hath been too long and too much trampled upon And surely the Law in this point is the same in England as in Ireland that the just bounds and limits on all sides might be preserved inviolate Touching the Age of Parliament-men In the Lords House none sit there under 21. Age of Parliament-men years of age and some wish none might under 30. though there they are singly for themselves and represent not others as in the House of Commons But in the House of Commons there hath been sometimes as was in the Long Parliament Members about 16. or 17. years of age if not some of them under and their Suffrages and Votes were of as much force as the eldest most experienced in the House And it hath been the observation of some experienced and wise Parliament-men that oftentimes in that House those that had the shortest wings were the highest flyers and such as these could adde number and so consequently weight to a side The inconvenience and hurt that arose from hence is easily demonstrable and hath too much appeared by frequent experience Some have wished that there should have been no Member of the Commons House under the age of 30. years there being so large a field whereout to choose Parliament-men for every place and it being even as it were ex diametro contrary to the nature and denomination of a Parliament which is but a great Senate so called à Senioribus the constituting Members thereof Touching the Election of Parliament-men Some have advised that it should be clearly free Election of Parliament-men without such ambient means as were used in the Long Parliament by some Factions and whereas every man may give his suffrage for Counties that hath 40 s. per annum and in Cities and Corporations without such a value that being the old custom And that which was 40 s. per annum in former Ages is worth now ten times as much well nigh if not more So consequently the Electors should be of better estate There being such a vast disproportion betwixt the Cities The great number of Burroughs Corporations alwayes excepting London and Corporations Burroughs especially and the Counties wherein that Burrough and Corporation is scituate for number of Inhabitants which heightens the concernment In some Counties there being so many Corporations that the County having but two Parliament-men to represent them be the County never so great yet every petty Corporation whereof in many Counties especially in the West there are very many such hath as many to represent it of equal power in the Commons House with any other Member of County or City So that the Parliament-men serving for Cities and Burroughs are in number by many degrees far much more then for Counties which hath been conceived to have been no small cause of our late troubles Some advised for that reason and for other reasons too well known notorious and obvious to every indifferent eye that the number of these Burroughs should be much lessened or at leastwise that power of Electing Parliament-Members Especially so many of these Corporations Cities and Burroughs having in these late troubles so clearly forfeited their Charters Touching the manner of proceeding in Parliament in the Commons House in the Long-Parliament It hath been ordinarily observed as is touched above that in Committees in that Long-Parliament some have given their Suffrage or Vote Negatively or Affirmatively upon the cause when it was to be reported though they have not heard the whole cause and sometimes but a small part of it Great numerous bodies being sometimes too ready to divide into parties and factions as hath been seen too often in that Long-Parliament and so consequently endeavouring to heighten their own side have taken hold of and created all occasions and advantages that might further it Oftentimes the Younger tyring and wearying out the Elder or more incurious Members by long Speeches and continuing the sitting of the House long and late in the night till it was grown thin and by the departure out of it of so many of the more Aged and less sedulous Members that the remaining party according to the destined and strongly preoperated design grew prevalent To instance no more and happy had it been for these miserable Kingdoms that it never could have been instanced that fatal great Declaration or as the late blessed King and Martyr called it the Appeal to the People hammer'd out that way by wearying out so many of the Members by sitting so long even all or the greatest part of the night may witnesse this to all posterity Which gave occasion to some to call it a Nocturnal parliament but very appositely did Sir Benjamin Rudyard one of those ancient Members that was so wearied out when one asked him what he thought of that Vote so carried for that Declaration so late in the night or rather in the next morning answered that it looked like the verdict of a starved Jury Many other indirect wayes to call them no worse were used by interessed parties in that Long Parliament to compass their ends much by surprises when too many Members either wearied out as before or else gone out ither upon their pleasure or private concernments or thereupon absenting themselves from the House then the House being thin'd according to their desires they easily gained the major part of the suffrages or else clap'd in early into the House whilest the negligent party were in bed or absent upon their private business neglecting the publick to which they were called and so carried it and by such like wayes contrived and effected their laboured ends perhaps by their engines so laid to draw away many whose company they would gladly have been rid of out of the House and to keep them out when so absent or to hinder them from coming in at all Such may not improperly be called Parliament Decoyes or rather as in that Long Parliament when some of the Members impeached eleven of their number upon one of them in the charge against him they fixed the stigma of the Parliament-driver and when it made for them imputed it to him for a crime It would be
Parliaments accounting what has been once done there quo jure qua injuria right and good and to be deduced into practice even those strange irregular acts in the tumultuous times of Richard the second and Henry the fourth nay we have seen how Spensers Treason distinguishing the person and office of the King so declared to be Treason by Act of Parliament many ages since even urged for right to instance no more Some have advised that such precedents acts and proceedings should have been examined and by publick Declaration by Act of Parliament purged or abolished or declared illegal And that Acts of Oblivion c. if but for that reason of preventing that male construction of citing ill precedents for Law that an inspection should have been made into the Acts of Amnesty and Oblivion passed in the first years of the Long Parliament and also that passed this last Parliament We have seen especially if we looked Northward how soon after such Acts of Indempnity and Amnesty the Delinquents as though they thought themselves justified in their former crimes fell again into the same And that there should in those past and due care be had for the same in the future have been a specification made of the crimes and offences intended there to have been pardoned and put into oblivion lest otherwise implicitely and insensibly they might have been taken not to be crimes and Loyalty and Fidelity tacitly at least accounted crimes and so creep into precedent and example for the future And that the first Paragraphs in the late Act of Pardon Indempnity and Oblivion might if thought fit be considered of where in the first place are pardoned All and all manner of Treasons Misprisions of Treason Murthers Felonies and Offences crimes c. counselled commanded acted or done since the first day of January 1637. by any persons before the 24 day of June 1660 c. by vertue or colour of any command power authority commission warrant or instructions from His late Majesty King Charles or His Majesty that now is Though there might be some obliquity error or abuse in the execution of Commissions from their Majesties yet some stumble at these expressions of Treasons Murther c. to be committed by Commission from the King as without all question was committed by Commissions granted by others and yet here they look like equal and eaven crimes which no loyal man can own It neither hurts nor hinders the pardon but rather more strengthens it that the crimes pardoned are specified and let the application be made onely to them that are guilty of them not to the guiltlesse and such as deserve honour and reward for that which some would at least imply to be criminal much lesse no ignominy or reproach Surely the Loyal party that acted according to the known Laws for so acting needed not His Majesties pardon Facinus quos inquinat aequat Some men cannot think themselves cleared except they can taint others guiltlesse with the imputation at least of these crimes whereof they themselves onely are culpable and it is a question whether their true meaning be not that they would have an Exculpation a term we have more lately had from the North and even a justification from their known crimes at least to be accounted no greater crimes then the actions of those that acted by the Kings authority according to the known Laws of the Land which they well know are no crimes but the contrary It is obvious to every eye how some have sweat to have justified all the illegal Acts of the Long Parliament Some make little or nothing of the endeavours that then were to have killed the late King in Battel but onely of putting him to death in cold bloud And that Restitution of some goods where the property is not altered if thought fit that such goods whereof the property is not altered as Houshold-stuff Plate Furniture of beds Pictures Hangings eminent Jewels or such like plundered or taken away wrongfully either by pretended Sequestrations spoil or otherwise should be restored to the owners or in some cases a just value repaid for them with a just consideration to be had of the parties from whom 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 Some have wished that that motion in the last Parliament Reparation to persons spoyled or Assembly or Convention that ended in December 1660. made in the Lords House might be renewed that the spoyed 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 Some have wished that it might have been by Act of Parliament declared Touching the Long Parliament if thought fit 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 sit 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 uot 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 And also that the keeping of the Records in the Tower 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 And also that the Militia 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 be rejected Qui semel est malus semper praesumitur esse malus presertim in eodem genere delicti And also if thought fit Oaths of Allegeance and Supremacy explained that the Oaths of Allegeance and Supremacy should have had some explanation alteration or emendation especially in that point of not resisting the King In the second Homily of Obedience which book is confirmed by Act of Parliament it is there expressed in terminis as the Doctrine of the church of Engl. that it is not lawful in any case to resist the King That this should expresly have been put into these Oaths and that all persons whatsoever which are to take the Oaths of Allegeance or Supremacy or that have taken them may take them with such emendations it being too notorious what strange interpretations have been made of these Oaths as that they were made onely against the Papal power and as though nothing else were to be resisted And in the beginning of the Rebellion in Scotland the orthodox Divines of Aberdeen maintaining according to that Doctrine of the Church of England That in no case the King is to be resisted and that so to do was contrary to Gods Words and to the opinion and practice of the primitive Christians The other Divines fomentors of that Rebellion expresly denied this and alledged that the reason why the primitive Christians resisted not was because deerant illis vires the very same reason that Bellarmine gives for he same so well do these two Factions concur Though by the History of those times it appears and Tertullian openly pleads it against the Emperor that it was not for want of strength for they had enough but that it was contrary to their conscience guided by Gods Word so to resist And therefore why not much need that all persons whatsoever should take this Oath to declare their opinion in this point And also Robbery the law to be â—â—tered if thought fit that the Law concerning Robbery ought to be in many cases and especially for the first offence mitigated and not made capital but that restitution be made to the party robbed and if the Robber be not able to do it then to be forced to work it out Which course some think would probably more terrifie idle persons that turn thieves who had rather dye desperately then lead perhaps a long and wearisom life Hereby many may repent and amend and do good service to their King and Countrey The party robbed also hereby gets restitution which seldom or never happens as the Law now is Our Law contrary to the practice in other parts of the Christian world hereby becomes harder then the Levitical Laws Some have hereupon said that the Gospel the Spirit killeth and the Letter giveth
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
and then by authority of Parliament be ratified Further touching Ecclesiastical matters The Ecclesiastical Courts proceeding according to His Majesties Ecclesiastical Laws Ecclesiastical Courts to be Courts of Record sitting under the same Crown with all other Laws some advise if it shall be thought fit that to all intents and purposes of Law they should be Courts or Record as well as any other Courts By the Statute 31 Eliz. c. 12. Reading the Articles of Religion the Incumbent is to read the Articles of Religion within two moneths after his Induction and 't is said some have not taken Induction at all because they would not read the Articles Had the Statute limited it within that time after Institution it had met with that fallacy In the form for Private Baptism Signing with the Cross in Baptism when the child privately baptised is afterwards brought to the Church to have the Baptism published at the receiving the child then into the Congregation there is no Interrogatory whether in the private Baptisme it had been signed with the sign of the Crosse as commonly if not altogether they are not neither is there any mention then at the publishing of the Baptisme of so signing it And it hath been found that some persons have pretended weaknesse in the Infant when it was no so onely to avoid the signing of it with the Crosse There being no Law that allowes private Churching of women Churching of women privately it is wished it might be alwayes publick in the Church and with a Vail and if within the moneth the woman be not able to come to Church to defer it till the recovery of her health In Cathedral and Collegiate Churches usually one of the Singing-men though in orders gives the Absolution Touching Absolution and the Blessing at the end of Service which some wish might be done by the Bishop of present or Dean or some dignitary or more eminent person present And that the Anthems and other parts of the Service which are performed singing or in a singing tone may be made more intelligible to all the Auditors who many of them are scandalized by the contrary which might be helped by some small alteration in the composure so that as sometimes was practised and that without any hinderance to the harmony first one of the Singing-men to declare out of what Chapter and Verses or part of the Scripture that Anthem is taken or what Hymn or Spiritual Song it is and then immediately before the singing each Verse with a clear audible voice to read it This would help much but the best way were that the Singing-men and Choristers were taught exactly to sing most articulately clearly and plainly and not to drown the words in their mouths that they cannot be understood but openly and distinctly found forth every syllable that they might be as well or better understood then when they onely read them And this hath been most commendably done by some expert Artists that way and might by all Mr. John Frost late _____ Westminster and one of the Gentlemen of His Majesties Chappel Royal gave a most clear and most deservedly worthy to be imitated precedent hereof then whom never any man read more plain and clear and yet what he sung was if possible more plain and clear then what he read By the Statute for the tryal De Excommunicato capiendo Touching the Writ De excommunicate capiendo the person excommunicate is to be published in his Parish Church which sometimes the Minister refuses or there is no Minister In which case 't is wished it might serve to have it fixed upon the Church dore upon the Lords day or a copy left at his dwelling house and the forty dayes to commence from that time FINIS A Table of the Particulars contained in the Notes touching alteration of some Laws TOuching Parliament proceedings Page 97 Ordinance of Parliament ibid. Privilege of Parliament ibid. The Bishops Protestation Page 98 The King none of the three Estates ibid. Proceedings of the House of Commone Page 99 Age of Parliament-men Page 102 Election of Parliament-men Page 103 The great number of Boroughs and Corporations ibid. Touching the manner of proceeding in Parliament Page 104 A competent number of Parliament-men to be at every debate Page 107 The manner how it may be constantly observed ibid. Fees of the Officers of Parliament Page 108 Touching new Laws ibid. Acts of Oblivion c. Page 109 Restitution of some goods where the property is not altered Page 110 Reparation to persons spoyled Page 111 Touching the Long Parliament ibid. The keeping the Records of the Tower Page 113 The Militia ibid. Oaths of Allegeance and Supremacy explained ibid. Robbery the Law to be altered Page 114 Against condemnation upon a single testimony Page 115 Touching Juries Page 116 New Laws to be made upon new accidents Page 117 Making of Eunuchs ibid. Stealing of Winding-sheets ibid. Stealing of men Page 118 Against delayes in Courts ibid. Fees in all Courts ibid. About examination of witnesses in defence ibid. Against the examination of witnesses in the hearing of one another Page 119 Reparation to persons wrongfully accused Page 120 The Act touching the Court of Wards and Tenures to be repeated Page 120 Rates to be set for buying commodities Page 121 About dignity and precedency ibid. Against the Act for limitation of Actions Page 122 Against multiplicity of Statutes upon the same subject ibid. The Clergies Proctors in the House of Commons Page 123 About augmentation of Vicaridges ibid. Against Mensals Page 124 Touching the bounds of Jurisdictions Page 125 The Ordinaries power about distribution of portions ibid. Against concurrence of Jurisdictions ibid. Wills to be transmitted into the several Counties Page 126 Degrees of Marriage prohibited ibid. About the suppression of seditions books Page 127 Spensers Treason ibid. Goodwins book ibid. Bucks book ibid. Sir Edward Cooks writings Page 128 Illegal and seditions Speeches ibid. The illegal Preface to the Propositions at the Isle of Wight Page 129 Rectifying the Translation of some words ibid. Illegal Declarations Page 130 The Printing-press ibid. A body of the Law to be framed ibid. Ecclesiastical Courts to be Courts of Record ibid. Reading the Articles of Religion ibid. Signing with the Cross in Baptism ibid. Churching of women privately Page 131 Touching Absolution ibid. Touching the Writ De excommunicato capiendo Page 132 FINIS
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 God 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 Father 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 favours 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 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 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-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 and pretending to I know not what heavenly Revelations and counterfeiting and extraordinary calling insinuated himself into the acquaintance of severall Divines that with inflamed Zeal labour'd to bring in the Presbyteriall Discipline of the Church of Geneva into the Church of England amongst whom was one Wigginton a Minister and if ever any an haire-brain'd one and a contemner of Magistrates Then he goes on and relates Hacketts and his Complices most horrid and ridiculous madness such as had not such a worthy author and others related it we might now doubt of the truth of it as the next Age will probably do of our Modern Fanaticks late pranks there he relates his fearful blasphemous speeches as he expired and was turn'd off the Gallowes upon whom that pious and Learned Author gives this grave censure Ita hostis humani generis dementas quos sanctitatem simulare ad sobrietatem nolle sapere deprehendit Thus the enemy of Mankinde infatuates those whom he perceives to be counterfeitors of holiness and will not be wise with sobriety And then after a line or two upon Arthington and Coppinger two of Hacketts Complices he goes on thus Nec hii soli sed etiam alii qui receptam in Ecclesia Anglicana Doctrinam Episcoporum vocationem damnando Praesules contumeliosè calumniando hactenus frustra impugnarant Nunc pertractis in eorum partes nonullis juris Anglici peritis in eorum Jurisdictionem delegatam à Regina in Ecclesiasticis causis authoritatem ut prorsus injustam linguas calamos strinxerunt declamando ubique etiam libris publicatis homines contra Regni leges in Foris Ecclesiasticis indignè opprimi Reginam ejusmodi authoritatem ex jure non posse delegare nec alios exercere delegatam Fora illa non posse a reo Jusjurandum Ex Officio exigere cum Nemo seipsum accusare teneatur Jusjurandum illud homines ad sui condemnationem cum ignominiosa confusione vel in spontaneum perjurium cum animarum exitio praecipitare Praeterea de aliis quam matrimonialibus causis non debere cognoscere ex hujusmodi Veteri Rescripto Mandamus Vice-Comiti Comitatuum nostrorum S. N. c. quod non permittat quod aliqui in Balliva sua in aliquibus locis conveniant ad aliquas Recognitiones per sacramenta sua faciendas nisi in causis Matrimonialibus Testamentariis Contra Juris Ecclesiastici Professores Regiam in Ecclesiasticis authoritatem propugnarunt utique Parlamentariâ Authoritate in Regina investitam Hanc oppugnare nihil aliud esse quam in Majestatem irruere Sacro Sanctae Praerogativae violato obsequii juramento insultare Fora Ecclesiastica de aliis quam Matrimonialibus Testamentariis posse cognoscere ex statuto Circumspecte agatis Articulis Cleri sub Edvardo Primo docuerunt Rescriptum sive legem illam prolatam suspectam esse quia temporis est incerti variae Lectionis Alibi enim
question was made whether she had sworn truly or no for proof whereof she was to drink the Bitter waters which would be the confirmers of the Oath if true and the revengers if false Num. 5.24 Against another When the Law had provided that out of the mouth of two or three witnesses who being sworn had given testimony against a man the matter should be established Deut. 19.15 Lest any man should take humane testimonies for Divine Oracles in the next Verse 't is commanded that the suspected witnesse must stand before the Lord the Priests and it must be enquired into whether he hath carried himself sincerely and truly in the testimony he hath given but if he be convicted of falsity then shall he be punished as he should have been whom he complained of But I shall transgress upon the time and upon the Church too the Clock having a while ago called us off if I should further follow these trifles which whoever list my bray with arguments they of their own accord so overflow therefore I restore you to your selves and conclude Isa 28.17 If as the Prophet saith this Judgment which we use be laid to the Line and Righteousnesse to the Plummet of Gods Word there shall be in those things no sin For the Magistrate to require and that from the party guilty or defendant especially if the cause be not capital or a cause of Bloud an Oath and that he may do it so far whether it be that the controversie may thereby be set upon its foundation whilest the state of the cause is sought for or that the truth of the proofs may be made evident whilest the question is handled Nor does the ends of the Oath or the order or the examination offend against Divinity and therefore cannot be declined They that decline it first they do it out of ignorance of Gods Law then the example is dangerous that one may thus for his pleasure enquire into publick judgments without judgment if we may call into question the rest of the affairs of the Kingdom and the moments of the Commonwealth lastly the Law it self if it make not for us That God Almighty may avert this from us to whom turning our selves let us pray that he will give us grace to be modestly wise and sober in all things to see in our minds how irreligious it is how unchristian to decline the judgments of our Nation but rather with all our endeavour with all the strength and force of our Wit to maintain them which maintain the Commonwealth and us all for next after God and his service most true is that saying of Elihu Judgment and Justice maintain all things Job 36.17 Upon the consideration most especially of what hath been written by Dr. Cosens in that Apology touching the Oath Ex officio and Purgation and what is said in that short Manuscript and in the Lord Bishop Andrews Determination thereupon and of the inconveniences and hurt that probably may be feared to ensue upon the prohibiting that Oath and Purgation together with the practice still at Common Law in the like cases and the rest that is here set forth as it is hoped that Act may be thought fit to be revised and re-examined and perhaps altered so with the like humility all that is said or shall be said in this Treatise is most submisly tendered to His Sacred Majesty the Lords Spiritual and Temporal and the Commons in this happy Parliament now assembled to be weighed by them if so to their Wisdoms it shall be thought fit otherwise to be as unsaid and retracted as is every thing there if it be dissonant to Gods Word His Majesties Prerogative the Laws of Church or State or the known Laws of the Land or the just policy and government in Church or State or against Christian charity or brotherly love Should any man object That some Civilians desired that this Act whereby the Oath Ex officio and Purgation is forbidden should passe at the end of the recess of Parliament the latter end of this last Summer 1661. when many other Acts of great concernment 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 praeferenda 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 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 Soveraign Lords time which is otherwise by learning taught then his predecessors in times past long time have been hath so continued the same whereof yet some sparks be 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 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
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
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
voluminous to reckon up the several species of the sinister artifices and gins which were then dexterously us'd in that Long Parliament to promote unrighteous ends very often by tumults which were at the best of some factious persons by clamours and menaces as it were to force away such Members as they knew would oppose their designs By Petitions too which were but a kind of Tumults too in another dress and most shamefully carried on and gained many times whether we consider the inconsiderableness of the Petitioners Oyster-women Barbers School-boyes as in some Petitions against Bishops if not others as much if not more contemptible or whether we consider the number of the Petitioners many subscribing them that knew nothing of the contents of the Petition if not sometimes giving power with a strange implicite faith to cerrain men of their Faction to set to their hands to what Petitions soever their party should frame the Petitions perhaps framed in London and never sent into the Country but thousands of hands sent up in Schedules to be put to whatsoever the framers should please if not also which is much the same some Petitions sent up out of far distant remote parts from London with very many hands subscribed and the Petitions after they were come up to London altered and yet the same hands continued or set to it Insomuch as in the time of that Long Parliament it was at least once observed that some Petitions or a Petition with some thousands of hands subscribed and coming from some parts remote from London and brought into the House of Commons and there read in the morning took notice being mentioned in the body of the Petition of some passages of words spoken in the House the foregoing evening whereupon one merrily asked What notable Mercury had that last night gone from London into those remote parts and got so many hands in a nights time and brought them back thither that morning This did almost put some to the blush if that had been possible happy could it have suffundere sanguinem ruborem the want whereof did effundere sanguinem cruorem So common was this stratagem of Petitioning grown that it gave occasion to some Satyrist to paste up that Distich upon one of the Back-doors leading to the Lords House viz. Bellua multorum capitum populus fuit olim At nunc multarum bellua fit manuum It was long before the Romans would publish a Law against Parricide and such unnatural and horrid crimes and the Historian gives the reason Ne dum prohibent jubent and haply that reason may well forbid me and others from too much enumerating the unjust subtilties and deceitful wayes of this kind and rather were it to be wished that if possible they were buried in perpetual oblivion and no Topicks were left of them except as Land-marks to avoid and detest them For which ends to good purpose perhaps it might be time well spent to ruminate upon the Journals of the Long Parliament with their Declarations Ordinances and Remonstrances and His Majesties Declarations answering and confuting them especially that of Aug. 12. 1642. For reformation of such obliquities of tireing out the Members and surprising of them in a thin House for as to that way of Petitions and Tumults 't is to be hoped it will not be attempted again Some wished this might have been remedied if thought fit by fixing a competent time for so many hours of the day to sit in not to be exceeded but by consent of the major part of the Houses to be constituted as hereafter followeth That no Vote should have been passed in either House A competent number of Parliament-men to be at every debate without a matter of two parts of three or more as should be agreed upon of the House heard the matter fully debated and that no matter to be debated should be propounded till such a number had been visibly present in the House which might at the first sight have been easily discerned if the seats in the House had been so particularly disposed that without telling their particular number by the Clerks or any other it might have been known which might have been easily done thus In the House of Commons The manner how it may be constantly observed each long seat in the uppermost part thereof down towards the door to contain thirty or forty partitions or more or less as the length of the seat will bear so that in each partition there could but one man sit and an order made which seat should be first filled and which next and so successively one after another and none to go into the second seat till the first were filled nor into the third till the second were filled and so to the rest in like manner And to make it at the first view clear the number of every partition in order to be in great legible figures set over the head of the person that sits in that partition as 1.2.3.4 c. then it being known being made so plain and certain how many persons each seat when filled contained as thirty or forty c. each seat being to contain equal numbers if that may be at least each seat of the side so many and each at the end so many equally It is quickly determined by seeing how many seats are filled or how many are in such seats whether the number required to be at the passing such vote be then there or not The seats for Privy Counsellors may notwithstanding this be distinct and kept for them and for Committees some such course to be taken too if need were in a due proportion In the Lords House such distinctions of seats and partitions cannot be conveniently so done in regard of the requisite priority of place there which is otherwise then in the House of Commons yet the competent number there that House being not near so numerous as the Commons House which had need be as many in proportion as the Commons House might have been quickly and easily discernable The number of forty in the Commons House and a much lesse in the Lords House though by many accounted to be a competent number to make up an House we have seen how upon design ill use was made of it in the Long Parliament which could not easily perhaps not at all have been done with so great a number To instance no more the pitiful number of Peers present at the passing that pretended Ordinance for the late Lord Archbishop of Canterbury's death may be thought on Some advised Fees to the Officers of Parliament that it might have been considered what Fees should have been taken by the Officers of Parliament Clerks Serjeants and other Officers some then conceiving them to have been very high Touching new Laws Declarations c. to be made and old Laws to be repealed and altered WE have seen in that Long Parliament what ill constructions were made by some men of Precedents in foregoing
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-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