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 [Page 2]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 an extraordinary calling, insinuated himself into the ac­quaintance of severall Divines, that with inflamed zeal, labour'd to bring in the Presbyteriall Discipline of the Church of Geneva, into the Church of England, amongst whom was one Wigginton a Minister, and if ever any, an haire-brain'd one, and a contem [...]er of Magistrates. Then he goes on and relates Hacketts and his Complices most horrid and ridiculous madness, such as had not such a worthy Author and others related it, we might now doubt of the truth of it, as the next Age will probably do of our Modern Fanaticks late pranks: there he relates his fearful blasphemous speeches, as he expired and was turn'd off the Gallowes, upon whom that pious and Learned Author gives this grave censure, Ita hostis humani gencris, de­mentat quos sanctitatem simulare, & ad solrietatem nolle sapere de­prehendit. Thus the enemy of Mankinde infatuates those whom he perceives to be counterfeitors of holiness, and will not be wise with sobriety.

And then after a line or two upon Arthington and Coppinger, [Page 3]two of Hacketts Complices he goes on thus. ‘"Nec hii so­li, sed etiam alii, qui receptam in Ecclesia Anglicana Do­ctrinam, Episcoporum vocationem damnando, & Praesules contumeliosè calumniando, hactenus frustra impugnarant. Nunc pertractis in eorum partes nonullis, juris Anglici pe­ritis, in corum Jurisdictionem & delegatam à Regina in Ecclesiasticis causis authoritatem, ut prorsus injustam, & linguas & calamos strinxerunt; declamando ubique, etiam libris publicatis, homines contra Regni leges, in Foris Ec­clesiasticis indignè opprimi. Reginam ejusmodi authori­tatem ex jure non posse delegare, nec alios exercere delega­tam. Fora illa non posse a reo Jusjurandum Ex Officio exi­gere, cum Nemo seipsum accusare teneatur. Jusjurandum illud homines ad sui condemnationem cum ignominiosa confusione, vel in spontaneum perjurium cum animarum exitio praecipitare. Praeterea de aliis, quam matrimoniali­bus causis, non debere cognoscere, ex hujusmodi Veteri Rescripto."’

Mandamus Vice-Comiti Comitatuum nostrorum S. N. &c. quod non permittat, quod aliqui in Balliva sua in aliquibus locis con­veniant, ad aliquas Recognitiones, per sacramenta sua faciendas, nisi in causis Matrimonialibus & Testamentariis.

‘"Contra, Juris Ecclesiastici Professores Regiam in Eccle­siasticis authoritatem propugnarunt utique Parlamentariâ Authoritate in Regina investitam. Hanc oppugnare, nihil aliud esse, quam in Majestatem irruere & Sacro Sanctae Praerogativae violato obsequii juramento insultare. Fora Ecclesiastica de aliis quam Matrimonialibus & Testamen­tariis posse cognoscere, ex statuto Circumspecte agatis & Articulis Cleri sub Edvardo Primo, docuerunt. Rescrip­tum sive legem illam prolatam, suspectam esse, quia tem­poris est incerti, & variae Lectionis. Alibi enim legi. Ad recognitiones vel sacramenta praestanda. Recognitionem item fa­cere non significare, testimonium perhibere, vel respondere in jure, sed debitum agnoscere, & fateri vel placita de Catalo­gis vel debitis tenere. Juramentum ex officio, in foris illis, ut in aliis, ex omni memoria fuisse exactum, ad simoniam, adulterium & alia tenebrarum opera rimanda, praesertim [Page 4]cum Insinuatio, ut loquuntur, fuerit clamosa. Et quamvis nemo teneatur seipsum prodere, tamen per famam prodi­tum teneri ostendere, utrum possit suam innocentiam de­fendere, & seipsum purgare, quandoquidem poenitentia imposita, non sit poena sed medicina ad peccatores curan­dos, alios à peccato deterrendos, & scandalum tollendum, juxta illud in Sacris Literis." Pro anima tua ne confundaris di­cere verum. Est enim confusio adducens peccatum, & confusio ad­ducens gloriam & gratiam. "Sed quid de hiis immoror, quum dissertationes Richardi Cosini Legum Doctoris & Johannis Morrisii & Lanceloti Andrewes eruditae hac de re utrinque praestent? Regina haud ignara suam authoritatem per Episcoporum latera in hoc negotio peti, adversantium im­petus tacite infregit, & Ecclesiasticam Jurisdictionem illaesam conservavit. That is, Not onely these, (speaking of Hackett and his Complices) but others also, who had hi­therto, though in vain, impugned the received Discipline of the Church of England, by condemning the calling of Bishops, and contumeliously slandering the Praelates; having now drawn into their party some Common-Lawyers, sharpned both their Tongues and Pens against their Jurisdiction, and the Authority which the Queen delegated in Ecclesiasticall Causes as altogether unjust, de­claiming every where, even in Books published, that men were unworthily oppressed in the Ecclesiasticall Courts, contrary to the Lawes of the Kingdom. That the Queen could not by Law delegate such kinde of Authority, nor others to whom it was delegated could exercise it. That these Courts could not require the Oath ex officio from the defendent party, when as no man is bound to accuse him­self. That Oath precipitates men to condemn themselves with ignominious confusion, or into wilful perjury to the destruction of their Souls. Besides, they ought not to hold cognizance of any other causes then Matrimoniall and Testamentary, according to that old Mandate or Rescript," We command our Sheriff of our Counties of S. N. &c. that they suffer not any in their Balive to come together in any places, to make any Recognizances upon their Oaths, but in Matrimoniall and Te­stamentary [Page 5]causes. "On the other side the Professors of the Ecclesiasticall Lawes maintain'd, the Royall Authority in Causes Ecclesiasticall as vested in the Queen by Authority of Parliament. To oppose this, was nothing else then to offer violence to Royall Majesty, and violating the Oath of obedience, to insult over the Sacred Prerogative Royall. The Ecclesiasticall Courts may hold cognizance of other Causes, then Matrimoniall and Testamentary, by the Sta­tute of Circumspecte agatis and Articuli Cleri, in the time of Edward the first as they made it appeare. That Rescript or Law which they produc'd was suspected, because it was incertain for the time, and is variously read. Elsewhere I have read it, To perform Recognisances and Oaths, and to make recognition or recognizance, doth not signifie to give te­stimony, or to answer in Law, but to acknowledge and confesse a debt, or to hold plea of Inventaries or Debts. That the Oath ex officio hath time out of mind been given in these Courts as in others, to sift out Simonie, Adultery, and other works of darkness; especially, when the Insi­nuation as they call it, becomes loude." And though no man is bound to betray himself, yet being betrayed by fame, he is bound to shew himself whether he can defend his innocence and purge him­self, seeing the penance enjoyned is not a punishment, but a medicine to cure sinners, and to deter others from sinning, and to take away scandall, according to that in Scripture, Be not confounded in speaking truth for thy souls sake, for there is a confusion that brings sin, and there is a confusion that brings glory and grace. "But what do I dwelling upon these things, when the Learned discour­ses hereupon on both sides are extant of Richard Cosin Do­ctor of the Lawes, and John Morris, and Lancelot Andrewes? The Queen not ignorant that Her Authority was in this business struck at through the sides of the Bishops, tacitely crush'd the violence of the Adversaries, and conserv'd the Ecclesiasticall Jurisdiction inviolate."’ Thus in a few words he summes up part of the marrow of these Learned dissertati­ons, and gives his sound judgement thereupon. But still they went on in their design, in which I believe they will ever be found immoveable. We have had sufficient expe­rience [Page 6]that way at what they aime, and that there is no hope of bending without breaking too. In their admonition to the Parliament in that Queens Reign they tell us, to this effect at least, that if they cannot have what they desire by fair meanes, they will have it by a way shall make our hearts ake; and I think they have indifferently well made their words good. Yet blessed be God, we are delivered again from them, God give us care to beware of them, and not to fall again into their snares by those blessed Titles of Mercy and Moderation, heavenly good surely, if rightly ap­plied. Let us but contemplate our fresh miseries, and the murther of our blessed King and Martyr, King Charles the First, and his [...], 'tis well to be hoped 'twill prove as much or more effectual, then the Pages Memento to Philip of Macedon in another case. These men, for they were all of the same Leaven, still persisted in their design, all along the Reign of Queen Elizabeth, and upon King James his com­ing in, thinking upon that change to have wrought some­thing extraordinary upon a Prince that had a great access of Dominion, and probably at his entrance would endeavour to satisfie all or most, so far as with reason it could be expected, and to ingratiate himself as far as fitting with his new Sub­jects. But it was our happiness, though his trouble and ve­xation, that he was well acquainted with the factious and se­ditious humours of that gang in Scotland, (with whom and ours here of the same mould, I believe ever was and will be a correspondence and co-operation.) Ex viridi observantia this is too demonstrable. They then set upon King Iames with their most humble Petition, called The Lincoln-shire Ministers Petition, perhaps denominatio à majori; it was a complication of many parts: there they desire favour for tender Consci­ences, and thereupon was the Conference at Hampton-Court granted, where their Reasons were, as it were, brayed in a Mortar, and they or most of them seem'd satisfied; but ma­ny of them at least, soon returned to their vomit. In that Peti­tion they promise all obedience, and profess they hold it con­trary to Gods Word, and the practice of the Primitive Chri­stians, to resist the Prince, or to get Reformation by force or [Page 7]violence. To this effect they supplicate and hold forth; yet I believe it may be prov'd, that some of these individual per­sons in that Petition, adhered expresly to the late Rebels a­gainst His Majesty, if they were not actually in Arms against him, as most if not all of their Opinions were. How they crept in, or rather marched on furiously, though slily in the the late Kings time, till they had weav'd up their Web to their desire: we have seen and sadly felt. When the High-Commission and Star-Chamber were taken away, a great point was gain'd: To speak of nothing else but the sub­ject upon which I am. Yet by the way it is observable, that many, if not most, moderate men are of opinion, that the Government will not be well settled, till both these Courts, though happily in many particulars altered and regulated, or [...], some other Courts much like them, be establi­shed; where extraordinary crimes and persons may be order­ed: and in the former, the High-Commission, the shifting of criminous persons from one Diocese to another may be met with. It was no small part of their design, to trample upon Ecclesiastical Jurisdiction, and to take away the coercive power, and to make it precarious and ridiculous: as they would interpret that Statute, which, if credible relations be true, was but strangely got; insomuch that a great leading Member in the House of Commons then in that long Parlia­ment, cryed out, Digitus Dei fuit in eo; that though it were not intended, yet the words would bear it, which he rejoy­ced at; though many, and not of the least, able Lawyers in the Kingdom were not of his opinion. That Coercive pow­er, for no other have the Ecclesiastick Courts, (except Su­spension, a degree below it, which amounts but to a small co­ercion to refractory persons, in regard it goes no further, the secular arme cannot be called upon that;) that, I say, that coercive power is Excommunication. That is the power of the Keyes, how far that power may be staid, retarded or for­born, I intend not to dispute; but that it shall be totally ta­ken away from the Church, Quasi non esset Deus in coelis, that surely is not to be believed, that it can be done by any power under Heaven. But that taking away that coercive power [Page 8]from the Ecclesiastical Courts, as they interpreted it, (and they knew they had argumentum à fortiori to maintain it) did not a little further and heighten their design. At the time of their raising their Militia against the late King, a person of no mean quality at a great Assembly made his Harangue to the people, (as I heard it from a very credible person, who said he was then and there present and heard it) and then and there enumerated the many great blessings this Nation had received from that blessed Parliament, (as he call'd it) That Ship-money was taken away, and the Star-Chamber was ta­ken away, and the High-Commission was taken away, and the Spiritual Courts too are taken away: A man could not meddle with a Wench, (his expression was otherwise, which I am not willing to mention) but he must be question'd: Hinc illae lacrymae. Indeed that was a great Eye-sore. Delin­quents never love the Judges that punish them.

And this did not a little advantage the cause they had then in hand, very many persons that had been justly question'd in these Courts flocking in to their colours. But I take no delight to rekon up these strange passages, (to call them no worse) which were not a few when that storm was in raising, which afterwards shaked all the corners of the Land. Two onely which concerned Ecclesiastical proceedings, (to meddle with no other of higher nature, that the world rang of, and I would the memory of them could be perpetually abolished) I shall briefly touch, which amongst others were these: A grave and able Civilian, and then a Member of the House of Commons, was accused by an Inconformist, that he had excommunicated him, for not kneeling at the Com­munion when he received. I was present, and saw and heard it, and to my best remembrance it was for not kneeling at the Communion, at least it was for not performing some other Ceremony; so that as to this matter 'tis all one. The Civi­lian being called up to a Committee of the Lords, then in the Long Parliament, out of the House of Commons, to answer [Page 9]it. By his Counsel he desir'd time to send into the Countrey, where it was pretended to be done, to know whether he had done any such thing; it being impossible for him to remem­ber every particular that he had done in his Jurisdiction, and that particular, he said, he did not remember. He had time given, and informed himself thereof; and at the next appoin­ted time of his appearance, by his Counsel, pleaded that he had done no such thing, as he was accused of. The Accuser said, then it was done by his Deputy or Surrogate: That was denyed too. Then he said, he was sure it was done by the Spiritual Court; and so it was, but not by any Spiritual Court where that Civilian had to do: Then the Civilian pleaded, that if he had done that whereof he was accused, he doubted not but he could have justified it: but since it ap­pears that he was unjustly accus'd, and reap'd some discredit by being thus question'd, and had been put to trouble and charge thereabouts, he desired reparation and charges: which by many of the Lords was yielded to, yet by the major part it was carried, that he ought not to have it; and the reason was rendred, because it would deter others from complaining. ‘Si satis est accusasse, quis erit innocens?’ Nay, how far may it tend to the ruine of some, if some men be maliciously set upon them, to multiply accusations against them?

The other was: Another Inconformist complaining of his being question'd in the Ecclesiastical Courts for his Inconfor­mity: In defence it was alledged against him and proved, that he had said, He would as soon bow at the name of Judas, as at the Name of JESUS: and I diligently enquir'd, but never heard he was punish'd for it. But would there had been no more then these, though these are too much: Would some had not gloried, had not triumphed in their shame.

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. [Page 11]Though I am far from questioning the reasons where­upon that Act passed, but do humbly submit to it both in word and practice; yet I hope it will be allowed to make some defence against such persons, as so tax such proceedings before the passing of this Act. And herein I shall follow that most able Civilian, Richard Cosin Doctor of the Laws, and Dean of the Arches, in that his Apology for sundry proceedings by Jurisdiction Ecclesiastical, &c. Mr. Cambden, as before, mentions him with honour, as surely he well deserv'd, and that work of his, if nothing else, evinces it. Mr. Swinburn in that Work of his of Last Wills and Testaments, printed at Lon­don for the Company of Stationers, 1611. in the first part, sect. 6. numb. 8. fol. 17. writes thus of him, and of that Work of his, that Apology: I find, saith he, written by that learned and no less religious man, Doctor Cosins (as I take it) in that worthy Work entituled, An Apology for sundry proceedings by Jurisdiction Ecclesiastical, &c. and so he goes on. Upon this subject he hath written so fully, that, I believe, little can be added to it; and if any should go about it (excepting such additions as well may be added, by reason of some emergen­cies since the time he wrote, and some other additions and explications, not derogatory from him) they would be forced very much to plough with his Heyfer, which would but look too much like a Plagiary. I could wish the book were re­printed, and haply it will be so, which may serve for Topicks to this subject. For as all the Poets after Homer are said to drink of his Fountain, according to that picture or statue of his, that denotes as much, with that Inscription, ‘Ridet anhelantem post se vestigia turbam.’ Even so must, I conceive, all do from Doctor Cosin, that shall write upon this subject. I was upon Epitomizing that Apo­logy of his, and had made some progress therein; but upon second thoughts desisted, thinking it better to refer the Rea­der to him, rather then to adventure to abbreviate him, and thereby perhaps wrong him: an offence that too many Epi­tomizers are guilty of; therefore, I say, I shall onely make [Page 12]use of some Notes, as confessed arrows out of his quiver, and sippe of some others elsewhere, and point the Reader to his full stream, where any that list may drink their fill.

Upon these words in the late Act; Provided, that this Act., nor any thing therein contained, shall extend, or be construed to ex­tend, or give unto any Archbishop, Bishop, &c. any power or au­thority to exercise or execute, &c. any jurisdiction which they might not have done before the year of our Lord 1639. or to abridge or di­minish the Kings Majestics Supremacy in Ecclesiastical matters or affairs, nor to confirm the Canons made in the year 1640.

I say, upon these words some are ready (mistaking questi­onless the words and meaning of that Act) to renew that old exploded Opinion, or rather groundless Fancy, That a several Royal assent to the executing of every particular Canon is required. Hereto Doctor Cosin answers, That admitting this were true, then all the other opinions of those that oppugn the ordinary Jurisdiction Ecclesiastical stand in no stead, and might be spared, because this would cut off all at once. For none that exercise ordinary Jurisdiction Ecclesiastical, have it in parti­cularity, (which by the oppugners seems to be meant) other­wise then by permission of Law, to every of their proceed­ings, and impossible were it, by reason of the infinity of it, and troublesomness to procure such particular assent to the execution of every Canon. His Majesties Delegates, when Appeals are made to His Majesty in Chancery, would signi­fie nothing, could not exercise the power to them delegated, by reason of the want of such particular assent; and it is a gross absurdity to grant, (as even the Oppugners and Inno­vators do) That Testamentary and Matrimonial causes are of Ec­clesiastical cognizance, (to say nothing of the rest of Ecclesiasti­cal causes) and yet cannot by reason of this want be dispatch­ed, nor can be dealt in by any other authority, according to any Law in force. This would speak a defect in the publick Government, that the Subject should have a right, but no likely or ready mean to come by it; and great offences by Law punishable, and yet no man sufficiently authorized to execute these Laws. Since the abrogation of Papal pretend­ed Supremacy, when the ancient rights of the Kings of Eng­land, [Page 13]of being Supreme Governors over all persons within their Dominions, as well in all Spiritual or Ecclesiastical things or causes, as Temporal; and that no forreign Prince, Person, Prelate, State or Potentate, hath or ought to have, any jurisdiction, power, superio­rity, preeminence or authority Ecclesiastical or Spiritual within this Realm, and so forth, as in the Act and the Oath.

Since these rights were, as it were, ex postliminio restored, and declared to have been, as they ever ought to have been, in the Kings of England, many Laws have been made in several Parliaments for the strengthning of Ecclesiastical Jurisdicti­on, and the more effectual execution thereof, and some of the Ecclesiastical Laws were enlarged, astered and explained:

• 25 H. 8.19.
  The Statutes for Delegates upon Appeals.
• 27 H 8 130. 32 H 8.7.
  Not long after, two Statutes for assistance of ordinary Ecclesiastical Jurisdiction, and for the speedier recovery of Tithes in Courts Ecclesiastical.
• 34 & 35 H. 8 19.
  The like for the recovery of Pensions, Procurations, &c.
• 1 Ed. 6. c. 2.
  In the time of Edw. 6. in a Statute (since repealed by Queen Mary) a great number of particular causes of Jurisdi­ction Ecclesiastical, are there (by the way) rehearsed, that Ordinaries and other Ecclesiastical Judges might and did then put in execution.

So 1 Mar. c. 3. 1 Eliz. c. 1. 5 Eliz c. 23. & 9. That Perjury or Subornation in a Court Ecclesiastical shall and may be punished by such usual and ordinary Laws, as heretofore have been, and yet are used and frequented in the said Ecclesiastical Courts. Which pro­veth the usual practice of Jurisdiction Ecclesiastical hitherto used (without any special assent) to be lawful.

So 13 Eliz. c. 4. &c. 10. and many more in the same Queens time, and King James, and King Charles the First, that blessed King and Martyr. I say, many are the Laws that have been made for the strengthning of Ecclesiastical Ju­risdiction, and the more effectual execution of it; and some of these Laws were enlarged, altered and explained. But never was there any Law, Custom or Act of Parliament, that required a several Royal assent to the executing of every particular Canon. Many are the reasons which Dr. Cosens gives in the first Chapter of his Apology against that particular Assent; [Page 14]wherein he shews his great candor, and ingenuity, and desire to give abundant satisfaction to all Opponents, though never so unreasonable, that were it not as clear as the Noon-tide light, that no such particular assent is needful, some might think that he fear'd his cause, and be ready to say, that Defen­sio nimis operosa, reatum quasi arguit.

But touching the validity of the Ecclesiastical Laws, there needs, I conceive, no more be said then what is expressed in that Act of Parliament 25 H. 8.19. the Ecclesiastical Laws, that were in use and practice before that Statute, are thereby established thus:

Provided that such Canons, Constitutions, Ordinances and Synods Provincial, being already made, which be not contrariant nor repug­nant to the Laws, Statutes and Customs of this Realm, nor to the da­mage or hurt of the Kings Prerogative Royal, shall now still be used and executed, as they were before the making of this Act, untill such time as they be viewed, &c. by the 32. persons mentioned in that Act: which is not yet done.

The Ecclesiastical Laws, which have been made since that Act, and all that ever hereafter shall be made, so long as that Statute stands in force, (the requisites in that Act being ob­serv'd) are thereby, I conceive, confirmed, or to be confir­med. The Submission and Petition of the Clergy mentio­ned in that Act is, That they would not enact or put in ure any new Canons, &c. in their Convocation, without the Kings Royal assent and authority in that behalf.

There it is said, That the Convocation in the time coming shall alwayes be assembled by authority of the Kings Writ, and that the Clergy must have the Kings most Royal assent and licence, to make, promulge, and execute such Canons, Constitutions and Ordinances, Provincial and Synodal: else they may not enact, promulge or constitute any such Canons, &c. And this course hath ever since been observed. Every Convocation called by His Ma­jesties Writ and the Clergy, had especial license from His Majesty to enact such Canons, &c. and to execute them.

The Provision following being observed, which is this, Provided that no Canons, Constitutions or Ordinances, shall be made or put in execution in this Realm by authority of the Convoca­tion [Page 15]of the Clergy, which shall be contrariant or repugnant to tho Pre­rogative Royal, or the Customs, Laws or Statutes of this Realm, any thing contained in that Act to the contrary thereof notwith­standing.

If any be put in execution contrary to this Proviso, and contrary to any after-Acts of Parliament, whereby His Maje­sty hath further power acknowledged in causes Ecclesiastical, then 'tis 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 [Page 16]to recite. Ecclesiastical Judges are not onely tyed by their offices and Canon. 117. Canon. & Constitut. 1604. Oaths, but▪ at least in some particulars, for which they have, though most unjustly, been much clamour'd against) are most severely by Act of Parliament charged to see the execution of, if not of others too, yet of one especial Ecclesiastical Law; for their care wherein some of them have been well-nigh ruined: that is, that according to that Act of Parliament, 1 Eliz. c. 2. For uniformity of Prayer and Administration of Sacraments, every person should diligently and faithfully resort to their Parish Church or Chappel, where Common prayer and such Services of God shall be used, upon every Sunday and other dayes ordeined and used to be kept as Holy-dayes, and then and there to abide orderly and soberly, during the time of Common prayer, Preaching, or other Service of God to be used and mini­stred, &c. Then follows thus, And for due execution hereof, the Queens most excellent Majesty, the Lords Temporal, and all the Commons in this present Parliament assembled, doth in Gods name earnestly require and charge, all the Archbishops, Bishops, and other Ordinaries, that they shall endeavour themselves to the ut­most of their knowledge, that the due and true execution hereof may be had, throughout their Dioceses and charges, as they will answer before God for such evils and plagues, wherewith Almighty God may justly punish his people for neglecting this good and wholsome Law. Who would think, (had we not sadly felt their de­signs) that the great Magnifiers of Parliaments (for which I discommend them not, so they keep within due compass) would have been so bitter against those, that acted but accor­ding to these strict Parliamentary charges?

AS to the proceeding Ex officio, or otherwise in the Eccle­siastical Courts, according to Law and the due former practise, nothing in that late Act is said against it; and there­sore implicitly, at least, it is allowed and approved. Rati ha­bitio mandato aequiparatur, 'tis a Rule of Law. The Law in that case remains at it was before, nothing need be said in justifi­cation thereof, but only as touching the Oath Ex officio, or other Oath, not to be administred as there, and touching Purgation.

Touching the Proviso's in that late Act, that which forbids Ecclesiastical Judges, to exercise any power, &c. as there; and that other Proviso that forbids them to tender, or admini­ster unto any person whatsoever, the Oath usually called the Oath Ex officio, or any other Oath whereby such person to whom the same is tendred or administred, may be charged or compelled to confess, or accuse him or her self of any crimi­nal matter or thing, whereby he or she may be lyable to any censure or punishment. I say, touching the former Proviso he hath, I conceive, given full satisfaction in that his Apolo­gy, in answering to the objections made in his time there­about. Therein also he clearly and fully justifies the pro­ceedings of Ecclesiastical Courts in general and particular cases. And to that other Proviso touching the Oath Ex officio, or any other Oath; and touching Purgation, as in that Act, [Page 25]I humbly conceive, salvo meliore judicio, he fully and clearly evinces it, that the saw and practice thereof was just, to ten­der and administer the Oath ex of [...]icio, or at the instance of a party, for the finding out of Simony, Adultery, and other crimes and deeds of darkness, [...] mae probationis, so [...] evil may be removed from the [...]nd. Alwayes provided that there was just cause for the Ecclesiastical Judge so to tender and administer that Oath; that is, that there was, before such oath was so administred or tendered to any party, due proof made of a common fame, that the party was guilty of such crime, touching which such oath was to be administred; or at least there was, as in some cases, denunciatio Evangelica, or canonica, or insinuatio clamosa, or other sufficient indicia prae­sumptionis or suspicionis, to induce the Judge to tender that oath; and so the practice alwayes was, and if it ever was otherwise, (as I believe that will scarcely be proved) it ought not to have been. He sets down the due cautions that ought to be had, when it is very probable that the person to whom that oath is tendered, will forswear himself, then to forbear it; and that in capital crimes, to the danger of loss of life or limb, it is not the practice in any Courts to administer such oath, for that very fear of Perjury; it being too much to be feared, that too too many would rather forswear them­selves then endanger either life or limb, (though in some pla­ces of Scripture it appears, that even in such cases such oaths have been administred.) The Father of lies could speak truth in such a case, Skin for skin (or rather as some learned in the Hebrew would have it) Job [...] 4. Skin after skin, and all that a man hath will he give for his life. There also he shews the weak­ness and inconcludency of that vulgar Saying, Nemo tenetur seipsum prodere or accusare, being indeed the trite and general objection. That a man is not properly said to betray or ac­cuse himself, when as publick fame, or other sufficient indicia, presumptions or suspicions have accused him, these are in­stead of the accusers: and it seems dis-ingenuous at least, in those especially that pretend to Learning, and have or might have examined the Canons, and Ecclesiastical Laws in that point, to urge one piece of a sentence and leave out the rest; [Page 26]where they found or might have found that sentence, Nemo tenetur seipsum prodere or accusare, they did also or might have found that which follows in that sentence, viz. Sed proditus per famam, tenetur seipsum ostendere, & innocentiam suam pur­gare. The accuser of his brethren cited Scripture to our Savi­our; sayes he, Mat. 4 6. He shall give his Angels charge concerning thee, and in their hands they shall bear thee up, &c. leaving out that in the Text that follows after these words, Psal. 91.11. He shall give his Angels charge concerning thee, that is, to keep thee in all thy wayes; which alters the case. That note or comment upon the Law, (or if they will needs call it a Rule or Maxime it matters not) Ne­mo tenetur seipsum prodere vel accusare, sive propriam turpitudi­nem revelare, is to be understood in crimes simply secret, and which are no wayes disclosed or come to light. But when such secret sins are by some of those wayes, that open a way to enquiry of a person supposed criminous, come abroad, and so in some sort are manifested; then those former rules cease, and that of St. Chrysostom comes in, Homil. 31. ad He­braeos, Non tibi dico, ut te prodas in publicum, neque apud alium accuses: but upon such disclosing, then Proditus tenetur seip­sum ostendere, & innocentiam suam purgare. This is for the a­voiding of scandal, and that the party may be reformed. Therefore doth Aquinas himself reason thus, Thom. 2.2. Cum quis, saith he, secundum ordinem juris à judice interrogatur, non ipse se prodit, sed ab alio proditur, dum ei necessitas respondends im­ponitur, per eum cui obedire tenetur.

As for tendering the Oath to the party where there is an accuser, that is not done upon the crime till the fame be pro­ved, or sufficient presumptions, circumstances, indicia, or su­spitions, or semiplena probatio, the oath of one sufficient wit­ness at least, to induce the judge to give that oath, though pe­nal in some sort to the party.

This practice he proves consonant to Gods Word, to the practice of the primitive Christian, and the opinion of the holy Doctors and Fathers of the Church; as also consonant to the practice of Geneva, and other at least seemingly strictly reformed Churches: and to the practice of all Christian Na­tions, and other Nations not Christian, guided onely by right [Page 27]reason and the Law of Nature: as also that by the known Laws of this Land, the Ecclesiastical Judges were so warran­ted and commanded to give that oath: the Ecclesiastical Laws and Canons being full and clear in that point. Then he shews how the proceeding at Common Law in this Land is the same, not onely in some criminal but civil causes also. For private debts 'twixt private persons penal to them, as in Wagers of Law, sometimes for a greater, sometimes a lesser debt, 'twixt two private parties, with the parties oath that is accused, and his Compurgators too; even as in Pur­gation Canonical in the Ecclesiastical Courts, together with other Purgation or Decisory Oaths at Common Law. Pro­ceedings in Chancery, with the several species and kinds of cases, wherein such Oaths at Common Law are tendered, being very numerous, and are by him cap. 6. in the third part of his Apology, and other parts thereof reckoned up, and ful­ly set forth. And if this may be done in civil causes, ought it not much rather be allowed the Church in criminal, which works onely, medicinaliter, to reformation? the Common­wealth works ad poenam, the Church not so; this to the a­mendment of the party, to bring him to a voluntary submis­sion, and to take away the offence and scandal which he hath justly given to his Neighbour, and to lead a new life; that (perhaps) to the loss of liberty, corporal punishment, or livelyhood at least, besides the infamy of being convicted of doing dishonestly and unworthily.

Rom. 13. EVery soul is to be subject to the Higher Powers. This is to be understood in all commands not contrary to Gods Word; in such comes in the Apostles rule, Acts 5.29. It is better to obey God then man. That the giving such an oath is not contrary to Gods word: An oath duly imposed by the Magistrate, necessitates the Subject to take it, as appears by the com­mandment of God himself, Thou shalt fear the Lord thy God, and serve him, and shalt swear by his name. The like is given by the Lord in the Prophet Jeremy, Jer. 4.25. O Israel, thou shalt swear, The Lord liveth in truth, in judgment and righteousness. Joshua gave charge to all the Magistrates of Israel, that Josh 13.2,7. They shall not make mention of the Gods of other Nations, nor shall cause to swear by them. Saul did not onely charge the people with an oath, but 1 Sam. 14. made them vow with a curse, not to eat any food that day till night: therefore one of them reported to Jonathan, Sauls son, That his father had made the people to swear. Some would cavil at this, as but an Adjuration, and would without reason diffe­rence that from an Oath; but in that Chapter, 1 Sam. 14. it is four several times called an Oath. The wise King Salo­mon imposed an oath upon Shime [...] in a cause capital to him, 2 Kings 41. Did not I make thee (saith he) swear by the Lord, &c. So King Saul 1 Sam. 24. urged David to swear unto him. For a private offence on­ly between Neighbours, King Salomon testifieth that a ne­cessary oath of Purgation may be required by the Complai­nant, 1 Kings 8. When a man shall trespass against his neighbour, and he lay upon him an Oath to cause him to swear, &c. King Josias 2 Chron. 34. made a covenant and vow, and caused all that were found in Jerusalem and Benjamin to stand to it. Nehemiah Neh. 5.12. caused the Priests to swear, &c. It is assigned for a special mark of a Godly man, Num, 30.3. Psal. 15.4. To swear to his neighbour, and not to disappoint him, though it be to his own hinderance.

Abraham said thus to his servant, I will make thee swear by [Page 29]the Lord God of the Heavens, &c. Gen. 14.3. this in a private cause, much more a Magistrate in a cause wherein the Commonwealth or Church of God hath Interest, to have it sincerely dealt in. Gen. 25.33. Jacob moved Esau to the sale of his birthright, and took an Oath for confirmation of it. Deut. 19.17.A man supposed to have born false witness against another, is thereof brought in question, and re-examined; if it be objected, it was not upon oath, by consequence of reason it must be upon oath, when what he has said before upon oath is re-examined, and this in a case very penal to him. The oath of Adjuration is very frequent in Scripture, Prov. 29.14. about not declaring cursing which he heard. By the History Jud 17 1,2. of Micah, as we are 1 Cor. 10.3. bound to do all to the glory of God; so it belongeth to the glory of God for a man, by due presumptions (burdned with a crime, and charged by the Magistrate) to confess of himself; as appea­reth by the history of Achan. The lot fell upon him, but this was but an inducement to ground a special Inquisition against him; if hereupon he might have been executed, Jo­shua needed not to have required any further confession of him; Lev. 5.1.but he goes further with a most solemn Adjuration, (in those dayes used for an oath, the Hebrew word signisying both, and being translated sometimes juramentum, and some­times adjuratio. Josh 7.9. Son, give glory to the Lord God of Israel, &c. albeit the punishment was capital, Ezra 10. [...]. Ezra adjured the Chief Priests, &c. Calvin in his Institutions gathereth, that Achan took an oath. When a man is found secretly murdered in the field, and the murder is not known, nor suspected; yet all the Elders of the next City thereunto should use certain Ceremonies, and then swear, Deut. 21. That their hands have not shed this bloud, nor their eyes have seen him that shed it In Leviticus a certain Sacrifice is to be made for certain sins, amongst which this is one, as Arias Montanus translates it out of the Hebrew; Levit. 5.1 If a soul, or a man shall have sinned, and have heard the voice of [...] Adjuration or Oath, &c. That which is here said, if he ha [...] heard the voice of an Oath: the Geneva Translation offereth it thus in the Margin, as if it were nearer to the Hebrew [...]en the other in that Text, viz. If the judge hath taken an [...] of [...] other. When a man delivers money or stuff on trust Exod. 22. to be kept [Page 30]by his neighbour, if it happen to be imbezelled away, and the thief be not certainly known or found, by the Law of God he must take a necessary oath of purgation and enquiry. The same also is a little after established by God touching any quick goods happening to be left in deposito. A sacrifice of Atonement for such a sin of Perjury is prescribed, Ibid. v. 10. If any do sin (saith the Lord) and deny unto his neighbour, &c. Num. 5.14.If a man be moved with a jealous mind against his wife, she is not onely to be charged with an oath, but to have further tryal to drink the bitter waters. J [...]r. 38 14.When the Prophet Jeremy was charged by the King in a generality, to answer that which he would aske him, the Prophet promiseth so it should not be capital to him, he would answer it. Whether upon oath or not oath, (for before God 'tis the same) no doubt he answered the truth. Jer. 37.13.The same Prophet, when he was charged with a particular high crime, refused not to answer, or bid them prove it, but roundly answers it. 2 Kings 5.So Elisha examineth Gehaz [...] his servant. Gen 43.3. Joseph in Aegypt gave an oath to his brethren. Ezek. 7.13. Zedckiah took an oath of Subjection, and is blamed and punished for breaking of it. 1 Sam. 21.2.The oath given to the Gibeonites was to be kept, and the violation of it punish­ed. For the manner of proceeding, or the cause of questio­ning, we see many instances: First, in flagranti crimine, John 8.4. if a party be taken in the manner, as we say; or the fact is mani­fest: as Num. 25 8 Zimri's was. Deut. 21.1Or though the fact be manifest, the person committing it is unknown, or the question is of the person, the fact being unknown; as in John 7.18. Achans case. Or by indicia, suspected signs; so Gen. 3.8. Adam hiding himself: So against Gen 4.6. Cain, Abel not appearing: Adam impeacht Eve, and Eve the Serpent, and both were punished upon it. Or upon infamy and cry, Gen. 18.20. The cry of the Sodomites being great, I will descend, saith the Lord. And such kind of Enqui­ries are made both in the Law, Deut. 17.4 If a report shall come to thee, or thou shalt hear; as also in the Gospel, as against the incestu­ous person, 1 Cor. 5.1. It is reported. Or by suggestion or complaint, as in Job [...].11. Jobs cause, where the Devil was Accuser. Joseph one­ly upon suspicion gave his brothers the oath. Evangelical denunciation, as Mat. 18.7. when Church or State are in [Page 31]danger, as in the Valley of Achor, that is against the troublers of Israel, so signifies the word Achor. When Peter and John were examined in the great Council, Acts 4.7. By what power, or in what name they had done that miracle; Peter full of the Holy Ghost answered plainly and truly, though it might have been capi­tal to him. What spirit are they of, who being required by lawful Authority to answer in matters not capital, yet will not answer at all? for upon a mans own confession judicial, though not upon oath, he may be equally convicted. Acts 6.In the proceedings against St. Stephen there were no Accusers in truth, but those who by Subornation denounced him to the Priests, and who are twice-called witnesses, because they de­posed against him; yet he refused not to make answer, though capital to him. Acts 22.When the Captain asked St. Paul, whether he were not that Aegyptian that made a Sedition, &c. he answered directly and denied it. Likewise the same Saint Paul, in all other his conventings before Authority, mentio­ned in the Acts Acts 4.25, &c. (even at the suit and accusation of a party) refused not particularly and truly to answer to all that was objected. And all this is done to the sifting out truth, and punishing crimes, either truly so, or at least thought to be so; and criminous persons are questioned, as well of the fact, as circumstances or fame; Gen 3.9. Hast thou eaten of the fruit of the forbidden tree? So the Princes questioned Baruch about Jere­miahs book, Jer. 26.17. Tell us, how didst thou write these words? So Ezra 10.11. Esras examined the questioned persons concerning their own fact. So the Acts 23.20High-Priest, having committed Saint Paul, examined him further, for oftentimes Accusers (as the Heathen could observe) fall off; all cannot, some will not accuse; what then? many crimes, being the deeds of dark­nesse, cannot be Eph. 5.11.revealed; Prov. 16.5. Because hand is in hand, and they will not bewray themselves. Because the name of Doeg sounds harsh, and to come forth to accuse a man is accounted poor and odious, a matter of cost, danger and Prov. 25.8.Infamy; must Villany therefore be hid, and scattered abroad, and get strength, till they break out to the destruction of the Com­monwealth? Or because none can or will (for 'tis all one, whether one will not accuse or cannot accuse) therefore it is [Page 32]not lawful to question? and without an Oath 'tis to little purpose▪ theresore God commands that way of Adjuration or giving an Oath. 1 Kings 2 [...].So the King adjured Micheas, Mat. 26.93.so the High Priest our Saviour, and both of them answered. But should any question Adjuration, even a clear oath was lawfully given even to the actor; as Exod. 22.8. 1 Kings 8 3. and therefore more then permitted to the Magistrate. For surely it were hard, if every private man might require an oath of the questioned, and not the Magistrate: should it be lawful in the case of a Pawn, and not of a Kingdom? An oath is an end of controversie, saith St. Paul; Heb. 6.16. then an oath to be taken for that end. In a case Matrimonial, which is meerly Ecclesiastical, Interrogatories were administred with oath, (as in a cause of Incontinency, Num. 5.) and the proceedings being by Enquiry, without any accuser at all. And this which is to be noted in the case in Esdras, Esdras 1.8,9. they are no wayes forced to it, but desire to take their oath first, and to be exa­mined after; then which there is no cause more suitable, then to the proceedings in Ecclesiastical Courts before the passing of the late Act, and against which the Innovators heretofore used to take exceptions. In some of these above­mentioned instances, we see how oaths were administred e­ven in capital causes, much more may they be where there is not that danger, nay, no danger of losse of Goods, Liberty, or any other losse; but onely for a medicine to the soul, for reformation of manners, and taking away scandal and of­fence given. They were questioned too, we see, upon small suspicions, signs, presumptions, or any other causes of questi­on, nay, nothing at all as to the person questioned, upon whom no true colour of suspicion lay, (something like our Coroners proceedings in some cases) but onely a fact was committed, that was apparent, whereof it was possible that he was not guilty, as in the case of a person found slain; then much more ought it to be upon great suspicions, presumptions, or publick fame thereof proved. This being thus by Gods Word, in the next place we may look into the practice and opinion of the primitive Christians hereupon.

IT is well said by an ancient and learned Cromatius in 5 Mat. Facit. canon. 36. con­cil. Tolet. quart.Writer, Dominus inter juramentum & loquelam nostram, nullam vult esse differen­tiam. And Aquinas saith, Thom. 2.2. qu. 69. art. 3. If he which is brought into question, and interrogated by the Judge without his oath, shall answer untruly, that therein he sinneth deadly. The old Christians in the primi­tive Church were far from such shifts of answering dangerous questions propounded to them by Heathen Magistrates, or from answering untruths to them. Tertullian is herein very plentiful, especially in his book called Apologeticon: Tertul. in Apol. c. 1. A Chri­stian, saith he, if he be indicted or denounced to the Magistrate, he rejoyceth in it; if he be accused, he propoundeth no defence; when he is interrogated, he most willingly confesseth; and when he is condemned, he giveth them or God thanks. And much more hath Tertullian to this purpose. St. Augustine Aug. serm. 28. de verbo Apost. cap. 6. doth plainly esta­blish and allow of Oaths taken concerning a mans open of­fences, being indeed such also in their own nature, If perhaps (saith he) thine Oath be urged, (meaning a Decisory oath, be exacted of thee by a private person) say not, I will not swear, for it cometh of evil which thou doest, but yet of his evil that exact­eth it of thee; insomuch as thou hast no other means but thine oath to purge and clear thy self of the matter in handling. Aug. ibid. c. 10.In another place he speaks and allows of oaths taken in way of purgati­on of one suspected for theft: Aug. ep. 137.and in another place he sayes and approves of the same practice at Millain; this was in a civil cause criminally moved, and for theft; a crime, though not simply capital by the Civil Laws. In another place; Aug. in qu. Lev. In denouncing others (saith he, speaking of Denunciation of faults to the Magistrate) this moderation is alwayes to be used by us, that we relate it unto such which may rather help than hurt him, (in case the party shall swear falsly) either by correcting him, or by [Page 34]deprecation to God for him, so that he will by confessing his fault ap­ply this remedy unto himself. Chrys. hom. 16. ad pop. Antioc.St. Chrysostom alloweth of Deci­sory Oaths or Wagers of Law, and testifieth that such neces­sary oaths were in those times imposed to exact mens confes­sions, and whether they had stollen some certain thing or not. This he allowes touching meer crimes in their own na­ture, and that upon the instance of a Plaintiff particularly in­terested but in his goods and chattels.

This kind of oath was not onely allowed in the old Church, but commanded to be put in use (as lawful and con­sonant unto Gods Word) against persons convented and had in suspicion, even in one Church, which the most and hottest oppugners of this oath do reckon to be best, yea, and almost the onely Reformation that may rightly be so called: For in the Discipline of France, concluded of in the National Sy­nod there, 1559, 1561, 1563, 1565. it was thus declared; The Ecclesia­stical Senate or Consistory, act. 12. The faithful may be constrained by the Consistory to tell the truth, so far forth as it derogateth nothing from the duthority of the Magistrate.

They may be constreined, say they, but there is no compulsi­on, but either Civil, which they will not arrogate to them­selves, as torture or racking, imprisoning or fining, &c. or else by the parties oath, which upon pain of Perjury, if he once swear, or of conviction if he will not, doth as it were constrein a man to say truth. And that an Oath is meant by the Canon of the French Church, we are taught both by the History of Camperell a French Minister at Geneva, as also by that of those who danced in Widow Balthazars house there. Interepist Cal­v [...]n. in folio pag. 421, 422. Camperell was appointed by the Consistory of Elders there, to be examined upon his Oath upon certain Interrogatories, whereof also two concerned what he had in his very purpose and intention of mind. Calvin. Farello pag. 64. epist. in folio.The Dancers, because at first they denyed it, were put to their corporal oaths, to declare the whole truth of that merriment. And all dancing there is held as an offence and grievous crime, as appears by the Ordinan­ces of Geneva, and by the very last frame of Discipline con­cluded 1571. by the French Churches.

For Purgation Canonical, as it was used in the Ecclesiasti­cal Courts of this Kingdom, in a word 'tis the same in these [Page 35]Courts in a criminal cause, as at Common Law a Wager of Law is in a civil cause; differs no more then thus, this is touching out Lands or Goods, that touching our Good name and Credit. It is so far from being condemned by good and godly Bishops in ancient times, that by whole Councils it hath been prescribed: Concil. Tribur. canon. 21. Let a Lay-man, saith one Council, if need be, purge himself by his Oath, and let a Priest by the consecra­tion of the holy Sacrament, be interrogated. And another Coun­cil thus, Ivo. lib. 5. ex concil. Agath. Let a Priest, if he can, purge himself of the crime with seven of his Order, and a Deacon with three. So was it decreed by a third Council, Ivo. ibid. ex concil. Herde [...]. If a Priest or Minister be infamed amongst his charge, and it cannot be proved before the Bishop by witness, let him be suspended untill he perform due satisfaction, lest the faithful people be scandalized: But, as our Elders have taught, then is the satisfaction due and orderly, when according to the Canons, or as the Bishops shall judge fit, he joyneth unto him seven Compurgators, and swears by the holy Gospel laid afore him, that he hath not com­mitted the crime laid unto him: When he is thus purged, then let him again freely execute his office. And in another Council we find Concil. Worm. Purgation prescribed for Theft, and also for Adultery; and according to the prescriptions of these Canons and many o­thers that might be alledged, examples of sundry ancient Bi­shops in the Church, that have themselves made their own Purgation, for avoiding and removing scandal and offence. 12 qu. 4. c. Mandastis. Sixtus the third, an ancient Bishop of Rome, but upon the ac­cusation of one Bassus, did willingly make his Purgation up­on his oath in a Council. Ivo. Carn. l. 5.And so did Leo, another ancient Bishop of the same See, purge himself with twelve Bishops. Gregory the Great enjoyned unto Greg. ep. 23. ad Iustin. Presb. Leo, Id. ep. 8. l. 2. Memius and Id. ep. 8. l. 7. & ep. 79. Maximus, three Bishops, to clear and purge themselves of several crimes by their oaths, whereof the last was for Simo­ny. Innocentius also caused the Bishop of Trent to purge him­self likewise of the like crime of Simony. And what be the Oaths touching Goods stollen or imbezelled, which were left with a man upon trust appointed in Exodus, Exod. 22.7,8. and those in Sa­lomons Prayer at the Dedication of the Temple; [...] Kings 8.31. other than oaths of Purgation of a crime, imposed by the party having an interest? Likewise the oaths mentioned in Leviticus Lev. 6.2. con­cerning [Page 36]goods denyed, that are pretended to have been left in deposito; or goods gotten by robbery or violent op­pression, or casually found after they were lost, yet by the fin­der denyed; are they not for purgation and clearing of the party from the crimes imputed? and in some respect also de­cisory of the whole controversie, unlesse sound proofs touch­ing the true guiltinesse of the party may afterwards be found out and used? Num. 5 14.The Oath of Jealousie taken with a further so­lemnity of Purgation, and imposed by the Priest, a publick Magistrate in that behalf, is an oath not onely of Enquiry, but of Purgation, to the woman denounced for suspicion of Adultery by her husband. Duet. 21.8Lastly, the oath imposed by Gods Law, upon the Elders of the City scituated next unto the corps of a man which is found secretly murdered; is a plain and most direct oath of Purgation, even in a crime (in his own nature) evil and capital to the offendors. For justify­ing of the Oath Ex officio, and at the instance of a party, and of Purgation with Compurgators, all in a manner as above, the authority of the Civil and Canon Laws is manifoldly extant; but that even the oppugners doubt not of, nor deny, but reject them, as in their conceit unreasonable and ungod­ly; and therefore 'tis needlesse to name them, being so easie to be seen, and obvious to every common eye. The recei­ved use of them, amongst most Civil Nations, make it to be little lesse than Jus gentium, and therefore by moderate and grave men not to be sleighted,

TO prove this in Christian Commonwealths, the Canons of the Church, and the practice thereof in all such sor­reign Christian Nations evince it; then which nothing is more manifest: To cite the particulars, at leastwise to recite them, would be voluminous; scattered all along the Civil and Canon Law. Dr. Cosens, in his third part of that Apo­logy, chap. 9. quotes many of them, as they were used in the Roman Empire, before Constantines time as well as after. Cons [...]d. Hungar. de [...]u­ram purga [...]By the customs of Hungary there be many and long Constituti­ons made for the taking such Oath, and of the manner of it. M [...]rian. in [...] qualit [...] qu. 84. Casonus in Pract. fol. 8 [...], num. 3.It is testified also to be the usual practice of all the Domini­ons in Italy, that the party convented in Temporal Courts, whether by way of Accusation, or at the Prosecution of ano­ther, or by way of Enquiry, Ex officio judicis, must swear to declare the truth, in all those things that shall be asked of him, even of the crime it self. This is much stricter than in the Laws of England, Ecclesiastical or Civil.

Ordenances du France, liv. 2. tom. 2. tit. 14. du droit deres [...] have passage, &c. pag. 895.For Merchandizes to be carried out of France, the Mer­chant must under his hand particularize the commodities with the weight and measure thereof, that there be no de­ceitful or forbidden Merchandize there, and upon the truth thereof he is to swear.

Ordonance de France premter an. 1539. ar­tic. 38.In another Ordinance there, the Plaintiffs swear to the truth of what is in their Bills, and the Defendants answer up­on oath, to confesse those things which be within their know­ledge. Marcus deci­scor 674. In other matters criminal it is reported to be the cu­stom of France, for the party Defendant onely to make faith when they are objected, and he is thereupon to answer, whe­ther he hath committed them or not; but he is not to take a corporal oath, betwixt which two (before God) there is no difference. Grand Constu­mier entre les constumes du Normandy. But by the custom of Normandy, the Appealed of [Page 38]murther must upon his oath (holding his Adversary by the hand) solemnly swear whether he hath committed such fact or no: and Stamford affirmeth the Law of England to be the same in like case of Appeal.

Amongst Nations of far elder times (in most flourishing Commonweals) oaths were taken by Plaintiffs and Defen­dants, in all causes whether civilly or criminally moved. Ex Polluce Si­g [...]nius l 4. c. 4. de [...]pub. Athen.So among the Athenians, besides a summe deposited to be forfei­ted by the failer. Aeschines con­tra Timar [...]um; pag 7. Grae è.When Aeschines accused Timarc [...]us of a foul crime perpetrated upon him by one Misgolas, Misgolas was to be put to his oath. Plato lib. 11. de legibus. Plato commends Rhadamanthus, that strict Justicier, feigned by the Poets (as Aeacus and Mi­nos also were) to be a Judge in another world over Ghosts deceased, for his justice; I say, he commends him for exact­ing an oath in every cause in controversie. Arist. Polit. lib. 3, 10. Aristotle, Plato's Scho­ler, testifieth and commendeth the like course. Herodotus in [...]rato, lib. 6.The history of Glancus, an ancient Spartan, that most just people of Greece, evidences this; there the oath of a thing left in Pawn was usu­ally given, Glaucus and his whole Family rooted out for de­nying such a Pawn left with him.

D [...]ctis Cretens. lib. 2. beth Tro­jani.King Agamemnon solemnly and publickly took his oath, that he had never polluted Hippodamia by Incontinency: so was the custom in Greece in matters criminal. Homer. Iliad l. 19. v. 257. Homer mentio­neth the same King purged himself also in another form, but with an oath too, that he had not violated Brise [...]s.

Pausanias Eli­acis.In the Olympick Games, the Gamesters with their Parents and Brethren swore they had used no fraud nor deceit.

Cato de re Rust. c. 144, 145.In the old Roman Commonwealth, private Housholders put an oath to th [...]ir Labourers that gathered Olives, that they had not stollen nor imbezelled any, &c. A [...]c sinal [...] sect. 1. de juram. ca­lum. &c. inter solicitudines. X [...]philanus in Comodo. Tacit. lib. 2. Anal.So the old Roman Law is upon presumptions, he that refuseth to take the oath, though the came be criminal, is taken for convicted. Victo­ria [...]us, General of Germany, displaced his Legate or Lieute­nant, for refusing to take an oath that he was not bribed. So Tacitus speaks of a solemne oath, which the Senate cau­sed to be taken by way of Purgation in high criminal matters.

When the Praetor, one of the chief Magistrates in Rome, [Page 39]had made choice of 450. Judges to decide causes, Lex Servilia Glauciae apud Sigonium, l. 2. c. 6. de [...]ud [...]. he was to swear he had chosen none of them dolo malo, or for any sinister respect. And much more might be instanced to this purpose, to shew the justice of such proceeding.

2 H. 5. c 1.ORdinaries are authorized to enquire of the Foundation, Estate and Government of Hospitals, being not of the Kings Foundation, &c. and to make correction and refor­mation according to the Laws of holy Church, as to them be­longeth: now by those Laws Enquiry touching crimes not capital is made by the Defendants oath, as is notorious and before proved, and this cannot but be penal to the parties vi­sited when guilty. 22 H. 8. c. 5.Executors and Administrators are to take the oath of the truth of the Inventory; yet this may imply Perjury, or discovery of a mans own fault. 1 Eliz. c. 2.Ordinaries are to enquire of, as heretofore hath been used by the Queens Majesties Ecclesiastical Laws, about uniformity of Common prayer.

5 Eliz c. 1.Ordinaries may give the Oath of Supremacy to a Clerk within his Jurisdiction.

5 Eliz. c. 9.In this Act of Perjury the Laws Ecclesiastical have the powers reserved to proceed as before, which was by oaths.

That allowance is made by Common Law to Courts Ec­clesiastical to enquire, (and so consequently by such oaths) appears by two precedents of Consultation set down in the Register; Regist. tit. Consultation. fol. 48.the first alloweth of an Inquisition made by the Dean of Yorks Official for defects in a Chancel, &c. Ibid. fol.The o­ther besides a consultation conteins a commandment to the Ordinary to take full information, by way of Inquisition and other means, touching the value of Tithes. Ibid. fol. 5 [...]. b.An Ordinary proceeded against a Parishioner ex officio, as for a crime for [Page 40]Tithes deteined by him. Ibid. fol. 49. [...]. Ad correctionem animae, the Ordi­nary proceeded against a Lay-man for Usury, even at the instance of a party grieved: so in several other cases, as in the same Register mentioned, fol. 43, 50, 51, 54, 55, 57. Upon the cavils of some busie people against Oaths mini­stred in Courts Ecclesiastical and Temporal, a Constitution Provincial was made against it: Constitut Pro­vinc de haercti­cis, c. nullus. Let no man, saith that Con­stitution, presume to dispute, &c. against Oaths, which are made either in Ecclesiastical or Temporal Courts, in cases accustomed, and in usual manner, &c. By this appeareth the practice of such Oaths in both Courts: A Treatise touching Constitut. Pro [...]ine. and Legatine, c. 23. printed by Tho. Godfrey.and Quintilius German in Henry the Eighths time, who wrote against some Provincial Con­stitutions, allowes of such Oaths to be taken. Many more instances hereof may be given, but it being apparent and no­torious, that such proceeding Ex officio, and at the instance of the party, and Purgation in manner as before, was constantly practised in the Ecclesiastical Courts, according to the Ca­nons, Constitutions, and Laws Ecclesiastical, before 25 H. 8. and by the aforesaid Statute of 25 H. 8. such Laws and pra­ctices have been confirmed, not being contrariant to the Kings Prerogative, or the Law of the Land: And it appears that in such cases, according as is practised in the Ecclesiasti­cal Courts according to the Ecclesiastical Laws, it is so far from being contrariant, that it is most consonant, and allow­ed and commanded by the Temporal Laws of the Land. say, it appearing by the Acts and Records of Ecclesiastical Courts, that such proceedings were so constantly upon oath; there needs no more be said for justification thereof, but it may safely be concluded, that (before the making of that late Act) the Common Laws and Statutes of this Realm al­lowed such Oaths to be tendered by Ecclesiastical Judges; and therefore the oath of the party, in some matter of crime that might be damageable and penal to him, was both in practice, and was allowed also to be practised (in Courts Ec­clesiastical) by the Laws of this Land.

IN the Chancery, when the proceeding is moved civiliter, and not criminaliter, not to any publick punishment, but to the private Interest of the party, and sometimes lewd pra­ctises and misdemeanours criminal be in the Bill set forth; yet must the Defendant make particular answer thereto upon his oath. So in the Court of Requests, in the Marches of Wales the Court of the Council there, and in the North parts; so that to the intent of a Defendants being urged by oath (somtimes) to discover himself in a matter criminal, it co­meth to as much in these Courts, as is challenged for unlaw­ful in Courts Ecclesiastical: and the Chancery must needs be the ancientest court of this Realm, because from thence all original Writs and commissions do come, whereupon the other courts do ground all their proceedings; therefore pro­bably, as in sundry other points of proceeding there, they drew the exacting of the Defendants answer upon oath from the Civil Law: For that court of Chancery being here in time and nature the first, (after the Roman yoke, before the coming in of the Saxons, was shaked off here) it could not take light from other courts of the common Law, but from some other, that was before both it and them. The Romans, under whom we were then, gave us these Laws most proba­bly; so they used, as their Histories testifie, to most Provin­ces they subdued. Many of the same Laws were taken up and retained by the Saxons, especially untill the coming in of the Norman Conqueror, who established the customs of Nor­mandy. Amongst others they retained, till then, that Law was one, That all brethren should participate alike their fathers In­heritance. Cicer sanil. ep.We read of Trebatius, an ancient civil Lawyer, of­ten mentioned in the Pandects, (who lived in Julius Caesars [Page 42]time, before our Saviours birth many years) did remain at Samarobrina in this Isle of Britain; Forcatulus.and afterwards that fa­mous Lawyer, Aemilius Paulus Papinianus, did professe the Law, and kept his Tribunal seat at the city of York.

For the court of Star-chamber and High-commission, I mention not the proceedings there, because those courts are taken away, though (as before) perhaps the want of them, especially if in some things regulated, will by many every day be more thought of: the proceedings there are in fresh memory, to have been in like manner upon oaths in criminal causes.

In all the courts of Record at Westminster, do not the Jud­ges by corporal oath examine any person, whom they have cause, in discretion, to suspect to have dealt falsly about the return of any Writ, entry of rule, or such like matter, not being capital? 13 E. 1. stat. Winton. Men are to be assessed, and sworn to have such assessed Armour in their houses.

17 E 2. Prerog Reg. c. 4.The Kings Widows sworn not to marry without the Kings License, 25 E. 3. de serv. c. 2, 7.Labourers are to take an oath to do the labours appointed, &c. and if they refuse they are to be put into the Stocks. 27 H. 4. c. 17.Another Statute much to that purpose. 8 H 6.7.The Sheriff may upon oath examine the choosers of Shire-Knights for Parliament. 27 E. 3. stat. staple.Those that ship over Woolls may be put to their oath by the Mayor, &c. and se­veral more, as 11 H. 7.33. 51 H. 3. 27 E. 3.6. 23 Eliz 6. &c. all which oaths, though necessary and equal, may bring great damage to the party.

Other Statutes there are, that may tend to make the party discover even matters criminal or penal to himself. Stat. de Exen. de inquisition. supercoronator. & 14 Ed. 1.The Statute of Inquisition upon Coroners, the Enquirers shall make all the Bayliffs swear, That they shall well and faithfully do that which they have in charge by the King and his Council, and that they shall conceal nothing of it. This is general, and may be pe­nal to the Bayliff.

E. 3. stat. de mone. a c 9.Mayors and Bayliffs in every Port where Merchants and Ships be, shall take an oath of Merchants and Masters of Ships, that they shall do no fraud against that Ordinance touching Money. This may be penal too, and to discover their own guilt.

The Statute 19 H. 7. c. 14. gives authority to divers great persons, to examine Defendants informed against for certain offences, and breach of Statutes, as well by [...] as otherwise, by their discretion, and to adjudge, &c. In seve­ral other Statutes, where it is said to examine, is me [...]n, upon oath, otherwise it could not be so understood of the Witnes­ses; as 18 E. 42. 11 H. 7.23. 19 H. 7.14. 3 H. 7.1. 21 H. 8.10. 5 Eliz. 9.

24 H. 8.6. Vintners put to their oaths, whether they keep their wine to sell by retail or in grosse.

34 H. 8.4. Concealers of Bankrupts goods to be examined upon oath, &c.

5 Eliz. 1.The Lord Chancellor ex officio to give the Oath of Supre­macy to whom he thinks fit: this may be penal to the re­fuser.

13 Eliz. 3.Such as be supposed to be parties and privy to the fraud used in conveyances by Fugitives over the Seas, may be exa­mined upon their corporal oaths, &c. the refusers to be fined. In which, as in the other Statutes, it is evident, that it may many wayes happen, that such oaths may tend to the urging them to discover matters criminal and penal to themselves, that are appointed to take them: and the four last alledged concern oaths given, where neither Bill nor yet Information is preferred against the parties examined, and therefore to be tendered more then ex mero officio.

In matters that induce damage to him that sweareth, there be sundry examples at the common Law; one or two may suffice. T. 25 E. 3. fol. 44.A woman covert Baron (being to acknowledge a Fine) if it be doubted whether she be 21. years of age, she shall be examined upon her oath.

P. 3 H. 6.38.In an Action of Detinue of goods, the Plaintiff was exa­mined where they were delivered.

H. 3 H. 6.30.A Plaintiff examined where an Obligation, which he plea­ded, was made.

Sheriffs, Stewards of Liberties, Reeves, Bedel of Strayes and Waifes, Rent-gatherers, &c. or other Accomptants to the Prince, or other great Lord, are usually urged to their Accompts upon their oaths: this may be penal and ignomi­nious to them.

Stamford Pleas of Crown, l. 3. c 14. M. 34 E. 3. fol. 3.In an Appeal of murther (as before) the defender must be­fore battail swear his innocency.

One sworn of a Jury, and departing from his fellows, and returning, was by the Judges ex officio examined upon his oath, whether he had talked with the Defendant.

T. 7 H. 4. fol. 19.A Tenant of Land was examined by the Judges, whether he confessed the Action of the Demandant by covin, which was found.

P. 9 H. 5.1.A woman that brought an Appeal for the death of her hus­band, but supposed by another name then she had indeed, was hereupon examined.

H. 35 H 6. & Fitz H. A­bridg. tit. ex [...] ­minat. num. 17A suspected Jury to have received a letter from the Defen­fendant,were all examined upon their oaths.

M. 35 H. 6.11.A Sheriff examined supposed to have made a false return,

Brooke tit. Ley-gager, num. 77.They have a custom in London, allowed good by the Common Law, to cause the Plaintiff to swear to the truth of his Declaration; which if he do, then the Defendant is con­demned; if the Plaintiff refuse, he is barred.

19 H. 6.43.The like Decisory Oath at Common Law, which is pe­remptory to the Plaintiff, and so is the Wager of Law ex parte defendentis.

44 E. 3.41.In an Action of Detinue for a Chest sealed, with certain Gold, Silver, &c. the Defendant tender'd his Law, (that is, his Oath) Quod non detinet, and the opinion of the Court was, he should have it.

Dr. Cosens, chap. 3. in the third part of his Apology, writes thus: The grand Jury (as I take it) have their oath given to en­quire and present, their own, their fellows, and others faults. And Part 3. chap. 14. he sayes, that at Assizes and Sessions Grand Juries are urged by oath to enquire and present Treasons, Murthers, and other Felonies, breach of the Peace, violation of sundry Laws and Statutes, common Nusances, &c. Now if one of the Grand Jury, being to be sworn, would deny to take the Oath, except he might have some certain offences (usually given in charge) left out and foreprised severally out of his Oath, lest otherwise he should thereby be driven to accuse himself: Or if one supposed most able to give evidence to the Coroners Inquest, upon a murther committed, should desire to be spared from telling his utmost knowledge thereof [Page 45]upon his oath, lest thereby he be driven to accuse himself: would the Judges spare them, and not rather repute them to be guilty of these crimes, for which they refuse to take oath and discover their knowledge? And why not then, other men should not, upon crimes nothing so penal, who refuse to take the oath to answer them, be judged by any man to do it upon good ground and conscience?

10 H. 6.7.If a Tithingman refuse to make Presentment, the Steward of the court may amerce him.

19 H 7. c. 14.Chief Constables and Bayliffs were to give evidences upon their oaths, touching unlawful Retainers, within the precinct of their Offices, and upon concealment were to be punished. And many more such.

Therefore hereupon may it not be concluded thus? That whatsoever the Ecclesiastical Laws do allow and require, being not contrary nor repugnant to the Prerogative Royal, nor to the Laws Statutes and customs of this Realm, that may be lawfully practised by Judges Ecclesiastical. But this oath is such, by reason that sundry Temporal courts (by Law) hold the like course, and do not prohibite it in Courts Eccle­siastical; so that not being so much as divers courses, they cannot be contrariant or repugnant, therefore these oaths were lawfully practised in courts Ecclesiastical: or thus, That which is justice and equity in one court, cannot be un­just, unequal, or cruel in another court, that is thereunto no lesse authorized than the first: But such be these Oaths, as appeareth by the practice of the aforementioned Temporal courts, therefore they are lawful and equal also in Ecclesiasti­cal courts.

DOctor Cosens hath touched upon some of such inconve­niences in general, not much in particular, sparsìm in that his Apology, but not in any one distinct chapter. Some of such as I have thought of I shall set down.

That Evil should be removed is often inculcated in holy Writ, and that right and justice should be done in all causes, as well criminal as civil, publick and private, all Laws sacred and prophane command: this tending to the well-being, even the being of all Kingdoms, Commonwealths and Govern­ments whatsoever; as the contrary to the desolation and de­struction thereof, and of all commerce and humane society. That in respect of the whole Church and Commonwealth punishments are most needful; the sacred Writ shews it, and gives many examples, where for the sins of a few, whole Ar­mies and Societies have been punished. Josh. 7. Achans stealing of the accursed garment, &c. was a cause of the overthrow of Israel in battel. 1 Sam. 4.So for the sin of Eli and his sons, many thou­sands of the Israelites were slain by the Philistines. 1 Kings 1.2. Salomon gi­ving charge to kill Joab, sayes, Smite him, that thou mayest take away the bloud which Joab shed causless, from me and the house of my Father. And for Jonas his disobedience the whole Ship was in danger to have perished. The Heathen could say, Justicia est Reipublicae basis. Aristot. Rhetor. T [...]odor. c. 14. Aristotle could say, that punish­ment [Page 47]is a remedy to be used against faults; and Cassiodor, Re­medium est contra peccatum accelerata correctio.

For all crimes and offences are but as so many Maladies and distempers in the body of the Commonwealth, which if suffered to grow without the curb of Law, will quickly like a Canker disperse, either to the destruction or eminent dan­ger of both: So that the necessity of punishment, and forcing justice to be done, both in civil and criminal causes, by the very ends unto which it is referred, clearly appears. A [...]g inc [...]. [...] tract. 7. Charitas non est sed languor, ubi mali mores digna poena non ca­stigantur. Idem ep. 50 ad Bonifac. c. erro [...]. dist. 83. Error, cui non resistitur, approbatur. Cassiod l 3. u. c. epist 14. Ma­lum, cum perseveret, augetur. C [...]cum Tanto de cea­su tudine. Tanto sunt graviora peccata, quanto diutiùs animam detinent illigatam. Tully sayes, Cicer. pro M [...]. Impuni­tatis spes, magna peccandi illecebra. C [...]d A [...]d. dist. 45. Quae est ista misericordia, quae bonitas um parcere, & omnes in discrimen adducere? The ve­ry Light of Nature did teach even Heathen men thus, F. add. A­quild. I [...]a vul­nerat. In­terest Reipublicae delicta puniri [...] and H. de fide pur. l. 7. sect. final. Poenas ob malesicia solvi, magna ratio suadet. Now, if upon such weighty reasons, it be most needful that Justice be duly administred, and crimes punished, (for in criminal matters the greatest care is to be had, though no neglect neither to be in commutative and di­stributive justice to have that rightly performed) it must be granted, that all due and good means may be used to attain that end: Qui dat finem dat media ad finem. F. de injur Peccata nocentium expedit esse nota. Now when crimes cease to be secret, but are by fame, or by such wayes as is aforesaid, so far discove­red; if there be (as very often there is not) no other way to discover them, that so the evil and the scandal may be taken away, but by putting the party to his oath, thereby to clear himself, if further due proof thereof cannot be made, or by refusal of the oath to be taken pro confesso: then it follows, the evil and scandal must still remain, and all the sad effects thereof to Church and State may be expected to follow.

Be the fame of a crime, Adultery or the like, never so preg­nant, that Town and countrey, even the Kingdom ring of it: though an Adulterer and Adulteresse have cohabited together a long time, yet if they were not taken or seen in flagranti cri­mine, or seen in bed together, which is a violent presumption, [Page 48]equivalent to a proof; and the parties deny the fact: some make it disputable, whether or no any manner of punishment (the fact being neither proved nor confessed) can be laid up­on the parties for this great scandal to the Church.

Some hold, that by the words of this late Act, that an in­nocent party, upon whom a fame is unjustly raised, and the beginning of it cannot be found, as often hath happened, yet though he offer to purge himself, the Ecclesiastical Judge is not to tender or administer the oath to him; though this seems otherwise, because the oath is forbidden but onely in such cases, whereby the 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. But in this case of voluntary offer to take the oath, that reason of censure or punishment ceaseth.

Such course by way of oath to find out the sin being for­bidden, how great an encouragement it may prove to com­mit such sins, is obvious to the easiest judgment. It was ex­treme to make Adultery punishable by death, though that ex­treme be to be avoided, the contrary too must be shunned.

If it be lawful at common Law, as in a Wager at Law, and many other cases, as before touched, to tender and admini­ster such oaths, and in such causes as need it not so much, as these causes ordinarily do; wherein before that late Act it was administred in Ecclesiastical courts: then why not in Ecclesiastical courts? Except it be said, that the same course shall be taken to forbid it also at common Law, which, I sup­pose, is not intended; since Jury men, as Dr. Cosens (as be­fore) in that his Apology affirms, had an oath given them to present their own and their fellows faults. Now such in Ecclesia­stical proceedings.

The inequality of the punishment as to the difference of Sex. Indeed the permission of punishment as to one Sex, the Man, and the punishment to the weaker Sex, the Woman, [Page 49]who therefore deserves more commiseration: that inequali­ty, I say, cannot at best but seem strange. For the man will alwayes probably (except either by Gods grace he will glo­rifie him, by confessing his fault; or else, as before, be taken in flagranti crimine; or with such violent presumption as be­fore) escape punishment though never so guilty: It is pecca­tum concatenatum, there must be two to act it. In that sin the man without the woman, or the woman without the man, signifie no more then the letter q without an u following it, to make it into to a syllable. As for the man, his crime is transiens, leaves no vestigia behind it to discover him: not so oftentimes in the woman, the infallible indiciū of her fault, her crimen ma­nens appearing to every eye, though she is no more guilty thereof then the man: whom if she rightly name or accuse, yet that works nothing against him, except to keep the Ba­stard child as the reputed father thereof; wherein not a few light women probably name not the right father; so her sin­gle testimony serves to punish either the right or wrong fa­ther, but not to take away the scandal or evil caused by the man that offended. Our English Nation hath been accoun­ted very friendly and favourable to the weaker Sex, and very many are the privileges and honoraries we give them more then in other Nations; for which in the opinion of generous minds we are accounted more honourable then others; inso­much as some have said, If there were a bridge 'twixt Dover and Callis, all the women in the Continent would come into our Island. But by this we may seem to hazard that honour.

In Simony, Usury, and many other crimes of Ecclesiasti­cal cognisance, be the fame, circumstances, suspicions, and all other inducements never so strong; yet this Oath being not to be administred, the offender scapes, neither the evil nor scandal is removed.

Bishops by the Statute 1 Eliz. 1. are to give the Oaths of Allegeance and Supremacy ex officio to others, or whether it be ex officio or ad instantiam partis, the matter is all one; 'tis forbidden to give it to any person, whereby he 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 [Page 50]lyable to any censure or punishment. The refusal of this oath is penal, and perhaps the person was so accused to the Bishop, or there was a common fame thereof, or other sufficient inducement to enquire thereof; if the party refuse to take this oath thus tendered to him, then is he by the Law lyable to Censure and punishment for it: and I conceive it is not thought fit, that such a person, be he a Recusant of what kind soever, should plead this Statute, that this Oath should not be tendered to them.

By the Law all Bishops and Ecclesiastical Judges, when they give Institution into Benefices, or give license to preach, teach school, serve Cures, and in other cases, are to give to the parties the Oath of Allegeance and Supremacy: should these parties refuse to take these oaths, it were penal to them.

When the Bishops make their Chancellors, Commissaries, Advocates, Registers, Proctors, or the Deans and Chapters, their Commissaries, Officials, or Auditores causarum, or the Archdeacons their Officials, or any other Ecclesiastical Offi­cers whatsoever, the same oaths are to be given them: should these parties refuse to take these oaths, it were penal to them. So a greater part of the course of proceeding in Ecclesiastical Courts is taken away, then perhaps many think of.

So in the Oath of Calumny and of Malice, to be tendered in the proceedings in Ecclesiastical Courts; if the party re­fuse to take them, 'tis penal to him. And in many other ca­ses, easie to be enumerated, but this may suffice.

The guiltless and innocent have no benefit by taking away this oath, especially that of Purgation; nay, (admitting that which, as above, some affirm, That though they offer to take the oath of Purgation, the Ecclesiastical Judge is not to mini­ster it) in that case they are endamaged by it, and cannot make their innocency appear in such a way and means as the Law did afford, and to be restored to all intents and purposes to their good name and fame, of which they were in a great part (though unjustly) bereaved; and might have a good Action against any, that after such Purgation defamed them,

The guilty hereby escapes punishment, which he may in some sort lucri loco reponere, if it may not be said of him as Vir­gil of the stinging Bee, ammam in vulnere ponit. Reg. juris.The rule of Law is, Nemo ex delicto consequitur beneficium.

The great Hypocrisie of those Innovators and Fanaticks in Queen Elizabeths, King James's, and in the late blessed King and Martyrs reign, King Charles the First, (to go no further) that then pressed the taking away of that Oath, and some of them we have seen go much further of late; who would be thought to be, and so hold it forth, that they are the greatest Zelots to have those sins punished, that by that means would escape it; yet cry, like the Lapwing, furthest from their nest; they would not have the means left to find them out, that so they might be punished: and other use for their ends (which we have sadly felt) they made of it, as is touched above. Herein they somewhat resemble Julian the Apostate, [...]. He would seem to be a hater of a long incompt Beard, and entitles that Tract of his [...], An hater of Beards; and yet he sayes there of himself, [...], &c. [...]. Longam istam barbam addidi, &c. ideo diseur­rentes in ea pediculos perfero, tanquam feras aliquas in sylva.

Many other inconveniences and hurts, that too probably may be feared to arise from the prohibition of these oaths, in such cases as before, might upon further consideration be enumerated: and though in the last place, yet even that too, of adding further discouragement to the professors of the Ci­vil and Ecclesiastical Laws, who have not had a few for a long time together, may perhaps deserve to be thought upon. It is too visible that there are not a few, that would not have them enjoy so much of practice and power, as that without which the State can scarce spare them, that is in maritime causes touching Traffick and Commerce with Forreigners; a point eminently considerable as to the benefit of this Nati­on. For the Law it self, surely all Scholers and ingenuous men, of what Robe or Profession soever, cannot but honour it for the Antiquity, and in a sort Universality, and Excellen­cy of it, and the great number of Nations, and so many, and [Page 52]noble, and well-civilized exercise, that were anciently, and in great part, and yet are governed by the rules thereof, and the helps received from it even by our own Nation too; many wayes demonstrable. Before our Saviours time, as is touched before, in the time of Julius Caesar, Cic. famil epist. 0 an anci­ent Civil-Lawyer, and often alledged in the Pandects, remai­ned at Samarobrina in this Island of Britain; and after that the Oracle of that Law, Forcatulus. Aemilius Paulus Papiniamus, profes­sed the Law, and kept his Tribunal seat of Praetorship in the City of York: and no inconsiderable part of the Municipal Laws of our Nation have flowed from that Fountain, and drawn many Rules and Maxims thence. So that it may, as that learned Civilian, Sir Rob. Wiseman Knight, Doctor of the Laws, His Majesties Advocate general for the Kingdom of Engl. in that Treatise of his of the Excellency of the Civil Law, be truly styled The Law of Laws; and as it was said to that Roman orator highly commending Eloquence, that he lifted her up to the skies, that he also with her might be raised up thither; so he in that learned and judicious Tract of his, setting forth the due and just honour and Encomium of the Civil Laws, de­serves to be thereby perpetually honoured. And for the pro­fessors of the Civil Law in this Nation, their share of suffer­ings in these late tempestuous times was the earliest, began first, some years before the Loyal Clergy were destroyed: For upon the passing that Act for the taking away the High Commission, in the tail of it was that sting, which (as the then more powerful part interpreted it) took away the coercive power from the Ecclesiastical Courts, and so in a manner made them useless and precarious, if not ridiculous; and within a very few dayes after passed that Act for Poll-money, where every Ecclesiastical Judge, that had any Ecclesiastical Office of Judicature, (though some of those places were not worth 30 l. per annum, nor 20 l. per annum, and some less) paid 15. l. a greater summe then some men paid of 10000 l. per annum, and more in Land of Inheritance: So sharp-sighted was that Act towards that then in a manner even ruined pro­fession. The reason of it was visible enough, and no wayes dishonourable to that profession or professors, who acted [Page 53]justly according to the known Laws of the Land; had they done otherwise, surely they had not wanted legal punish­ment, as the times then were, and the cry that was then un­justly raised against them; when the furious flame of Civil war broke forth, that wasted the Church, all loyal Church­men, and all that had dependance or relation to them, in re­gard of any Offices or Places, as most, if not all, Civilians had then. As to the Civilians, Sublatum fuit questionis subje­ctum, their Offices and Places were quite taken away. Indeed the most reverend Fathers the Lords Archbishops and Bi­shops, with Deans, Chapters, Archdeacons, and other Dig­nitaries in Cathedral and Collegiate Churches, tasted of the same cup, were A la mode then, but not so soon as the Civili­ans, root and branch destroyed: but the Beneficed Rectors and Vicars that for their Loyalty were thrust out of their Be­nefices, had a small pittance reserved them, (though when paid at all, miserably shrunk and lessened almost to nothing) that is, as they called it, the Fifths of their Livings: But as to the reverend Prelates and Dignitaries, and the Civilians, there was nothing left, under such pitiful Step-fathers, were the then nick-named Fathers of their Country, the prevailing party in that Long Parliament, during the time of the long continued usurping Power, even till His Sacred Majesties happy Restauration; those causes and businesses, which of right ought to have been agitated and dispatched by Civili­ans in their several Offices and places, many of them, as can­ses of Defamation, Matrimonial causes, Tithes, if not Le­gacies also, and several other branches of Ecclesiastical Juris­diction, were all along dispatched at Common Law or Chan­cery, contrary to all Law and equity; Probate of Wills, and granting of Letters of Administration, with all the connexes and incidents thereunto belonging, and from thence arising; were by Commission from that usurping Power, committed to a few persons of their own gang at London, so that the Subjects from all parts of the Kingdom were to prove the Wills of the dead, and take Administration of Intestates Goods, passe their Accompts, and act the rest concerning them, there before them at London. The Executors and Ad­ministrators [Page 54]must either come up thither personally to them, to take their oaths, or else have Commissions down into their Countries to do it; and the charges to the Subject for such Probate of Wills, Letters of Administration, and the rest, whether they went up themselves to London to dispatch them, or more especially if they sent up by others thither to have them done, as most commonly they did, and not scare one in forty did otherwise, and it was the cheapest way probably for them so to do, in regard of the charges, to send up by o­thers that also had other business of their own there: Yet, I say, by these means, and the great Fees taken, the charges for proving every Will, taking Letters of Administration, and the rest, came ordinarily to about six times (sometimes much more) as much as was taken and due before these trouble­som irregular times, by the Ecclesiastical Judges and Officers to whom of right they appertained: that is, the Fees and charges usually came to 50 s. or 3 l. or 4 l. or 5 l. and some­times to 6 l. or more. Had such a Grievance, and so general throughout the Kingdom, reigned in the time of Kingship, when faithful and peaceable men acted according to the known Laws of the Land; surely the fall of Nilus to the Ca­dupes would not have made such a noise, as our factious Sten­tors would have then bellowed out. And too much of the grievance still remains, such Wills, Inventories, Bonds so Administration, with the dependancies thereupon, remain­ing still at London, whether the Subject, when they have oc­casion to see or use any of them, or sue for any thing concer­ning them, must either personally repair or send for them, or sue there: which is well hoped will by this happy Parlia­ment be remedied, and a course taken that they may be trans­mitted into every County whence they came, for the Subjects ease, and that they there may sue upon occasion, for any Le­gacy or other matter concerning them. Should it be deman­ded at whose charge this should be done; the dictate of Rea­son, I humbly conceive, answers it; Qui commodum habet, idem & onus habere debet. And thus for no small number of years our Places, our Livelyhoods, were unjustly taken from us, onely for our Loyalty; whilest others, that did it, gloried [Page 55]in their shame, took our bread out of our mouths, and did eat whilest we fasted and well nigh starved; and yet such is the unsatiablenesse and unreasonablenesse of some of our causelesse persecutors, that they could well be content we should still continue in the same oppressed and miserable con­dition: And when His Majesty was happily restored, (for which all thanks, praise and glory be ever rendred to the God of miracles and mercy) the Civilians, as they were (as is be­fore touched) the first and earliest sufferers, so were the last (not a small time after the most reverend Bishops, and espe­cially after the rest of the Loyal Clergy were restored) that were re-admitted to their places and Offices; and when that was done, still for a considerable time they were but preca­rious, and of little use or value as before, till the doubt tou­ching coercive power was by Parliament taken away, which was not till the later end of Summer 1661. and then with the Proviso against the Oath Ex officio and Purgation, which not a little diminishes these Offices, besides upon reasons known, the forbearance of the full execution of such Offi­ces, as yet, so far as by Law they might execute them, is con­siderable.

Some Civilians, who in contemplation of their natural du­ty, and of their Oaths of Allegeance and Supremacy, served His Majesty in his wars against his then rebellious Subjects, thereby lost all their Fortunes both real and personal, that their enemies could find: and certainly never were more se­dulous and rigid scrutators, or more rapacious Harpies, that would not let scarce any thing passe their clutches. ‘Non fuit Autolyci tam piceata manus.’ And such suffering Civilians, both so in their Livelyhoods, their quotidianum, and their persons and liberties very often, humbly hoped when a time of re-settlement should come, that they should have been looked upon as well as others of the same profession, that sate still, underwent none of these dangers or hazards, nor suffered perhaps any thing, or but little in their Estates or otherwise, especially in comparison [Page 56]with the others, or as well as others that had some competen­cy by reason of practice under the usurped Powers, as to take and execute Offices under them of great benefit, and I had almost said that way, if not otherwise also, immediately act­ed against His Majesty and his Authority, contrary to their natural duty, and Oaths of Allegeance and Supremacy. To plead before the usurping powers, even after the end of the war, it was not, at least for a long time, permitted to those Civilians of the Kings party, especially those that had served him in his wars here. For my own part, though I could ne­ver satisfie my Conscience so far, as to plead before any of the usurped powers, not so far to acknowledge their power, though some years before His Majesties happy restauration, I was both here and in Ireland invited and desired to do it, yet I would not do it, nor ever did that way or any other give any acknowledgment of their power, or touch any of their Pitch, more then by a forced acquiescence, and sitting quiet and still when I was constrained so to do. Yet, I say, I am far from censuring any of these worthy and learned per­sons of either Robe, that did either agere or defendere before that usurping power, by way of pleading: I would not be mis-understood, as to be thought so much as to think amisse of the noble Profession or Professors at Common Law, both which I love and honour, and do very well know, and have heard many of them, suitable to their Births, Breedings, and loyal and generous Minds, commiserate the oppression of the Profession and Professors of the Civil Law, and wish that the proceedings in the Ecclesiastical Courts, by the Oath Ex officio and Purgation, might continue as it was before that last Act that took it away; even for the justice of it, as they conceive, as also lest it might seem, at leastwise in some mens judgments, to savour of a kind of partiality, that these Oaths Ex officio and Purgation should continue in proceeding at Common Law, and not in the Spiritual and Ecclesiastical Courts, or Courts Christian, as at Common Law by the Laws of the Land they are styled; a Title we like well, and surely that Nick-name, suitable to such debauched and disso­lute persons that gave it, because in these Courts their unclean [Page 57]crimes were punished, and that did commovere bilem; though they were punished there onely, as before, Medicinally, to acknowledge their crimes, to aske God and the congregation forgivenesse, and to take away the evil and scandal, and not mulcted or corporally punished by imprisonment or other­wise: I say, that Nick-name, should it be given at all to any court, as it ought not, it would rather lean to such courts as inflict corporal punishments and mulcts upon such criminous persons, by Imprisonment, keeping the Bastard children, whipping, or otherwise corporally punishing them. I wish and hope, that as both the professions of both Robes sit as sisters under one Crown, derive from one and the same head, and draw from one and the same Fountain; so each knowing their certain bounds and limits of Jurisdiction, (which, if not clearly and explicitely settled, I wish and hope will be) may proceed christianly, charitably and friendly in their several spheres of activity, without clashing or the least dissention, to Gods glory, the good of this Church and Srate, and the just distribution of Justice, to the benefit and comfort of all the Subjects in His Majesties Dominions. Let us all remem­ber, that not long since there was a generation of men, then too much in power, that had an equal tooth against both the Professions, would gladly have seen the destruction of both, and made too great a progresse in it. The noble Professon and Professors of the common Law, could then expect little more favour then Polyphemus promised Ʋlysses, that he should be the last that should be devoured. And probably enough some of them stirred up some of the lesse-considerable com­mon Lawyers, and such as favoured their side too much, (for in all Professions there is good and bad) to be iustrumental in the abolition of the Civil Law; and when that was done, when the out-works were taken in, then to have a bout with the Fort it self. They have shewed their Method: No Bi­shop, no King. But concord and peace, it is to be hoped, will duly and indissolubly cement these two Professions, if amongst our selves we do not ponere obicem, and dis-joyne the union. Let us never forget St. Pauls good counsel and cau­tion; All the Law is fulfilled in one word, even in this, Thou shalt [Page 58]love thy neighbour as thy self. But if ye bite and devour one another, take heed ye he not consumed one of another. For the Civilians, if they have many enemies and but few friends, (as was said by one, that 'tis hoped hath no disaffection to that profession or professors of it, but rather in a just resentment of their op­pression, sutable to his birth and noble disposition) if so, I say, they may comfort themselves in this, that they were put to the test in the beginning of the Long Parliament, when their factious Accusers were sufficiently numerous and viru­lent, and had they been found guilty, they had not then esca­ped punishment, severe and infamous enough. They could not easily have been highlier justified then that way, which made it appear to all the world, that that clamorous party, through the sides of the Civilians, intended to strike at and wound their Superiors, and so serve turns and ends, and com­passe their long-weav'd design. If the Civilians do their parts in their Functions, uprightly and diligently, which their own consciences doubtlesse will prompt them to, and the vigilancy of their factious Adversaries over their actions, may serve to keep them awake; 'tis to be hoped they will every way find comfort and encouragement: However that peace at the last, and the continual Feast in the interim, will buoy them up above the greatest waves of envy or ma­lice. Good men will be their friends, though the contrary be their enemies: and one Cato is better then a Theaire. And we cannot but be confident, that we shall never have cause to say, as some said in another case; Non nos Resp. sed defuit nobis Respublica.

We have a gracious KING, whom God protect, blesse, and prolong his dayes: ‘Et Spes & Ratio studiorum in Caesare.’ He, we doubt not, will, as before him his Royal Father, Charles the first, King and Martyr, and his Grandfather King James, of blessed memory; look upon us with a favourable eye, according as he finds we endeavour faithfully and dili­gently to serve the Church and State, that is to serve him: [Page 59]they who faile therein deserve not to be remembred. And besides the general, His Sacred Majesty hath in particular de­monstrated his gracious favour that way, by the addition of honour and honourary revenue to the Masters of the Chan­cery, Civilians for the most part: an act that, if possibly there can be an addition, adds to the just obligation of duty, service and gratitude which they owe his most excellent Ma­jesty. And all due thankfulnesse and honour the same Pro­fession must ever acknowledge and render to the Right Ho­nourable the Earl of Clarendon, Lord Chancellor of England, for his special favours to that Profession and Professors, and for his mediation and being instrumental (as none, I believe, can suppose otherwise) in the obtaining that favour and bounty to the Masters of the Chancery, and by furthering the continuance of His Majesties gracious inclination to­wards them. We blesse God, and His Majesty and his Lord­ship for it, and are, I hope, and ever shall be most thankful for it, and rejoyce and comfort our selves in it, and ‘Rumpatur quisquis, rumpitur invidia.’

Now (as in the Preface) I thought fit to subjoyn that little Manuscript, touching the Oath ex officio, with that Deter­mination touching the same, by that glory of our Church, the late Lord Bishop Lancelot Andrews Bishop of Winchester.

This, as before, is by some said to be Dr. Davenants, late Lord Bishop of Sarisbury, and others say it was the late Lord Bishop of Winchesters, that most learned and pious Bishop, [Page 67]Dr. Lancelot Andrews. Whose soever it was, it seems it was to give satisfaction to the Lords of the Council touching such proceedings Ex officio, and upon oath; and 'tis to be believed it gave them satisfaction, the Law so long after continuing the same, and no wayes altered.

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 praferenda; if they could not have all they would have, yet to have something, that in a manner wanted all, was but rea­sonable prudence: it had perhaps savoured of morosity to [Page 91]have done otherwise, especially considering that those that have long fasted would be glad to eat; though, I hope, these that administred this food to them, did not fear they would (as hungry men use to do) feed too fast, to their hurt, not to their nourishment, and therefore did set the less meat before them; but upon a pause after this refreshment there may be a supply: Neither need (I humbly conceive) any thing that is already done, hinder the review or alteration of this Act in that point. For it is no new thing nor discommendable, (but contrary) to make Laws upon present reasons or emer­gencies, and yet upon future accidents or contingencies, and variation of the times and occasions, and other necessary re­quisites, which could not well be foreseen at the making of these Laws, nor perhaps dreamt on till they happened; to al­ter, change or repeal the former. Hereof many instances might be given, but in so plain a case I shall mention but one, and that in a matter of Ecclesiastical cognisance, touching Precontracts of Matrimony, in 32 H. 8. c. 38.

This Act was not many years after repealed, as followeth,

By these the inconveniency appeareth, of taking away or altering an ancient long-settled Law, practised long in all Christian Countries, as this was; which had it not been good, probably the inconveniency and hurt of it had appeared in so long a time; and the Law for the Oath Ex officio and Purga­tion is of like antiquity and practice in all Christian Coun­tries, without inconvenience or hurt thereby arising as yet, that I ever could hear of; therefore such Laws ought to be deeply weighed and considered of, before they be repealed or altered.

And now that I am speaking of repealing and altering old Laws, and making new, I thought fit to close this Tract with some Notes of mine, drawn up almost all of them in the time of the usurped Government, and some after His Majesties re­stauration, and communicated to the sight of some of Qua­lity, touching the repealing or altering of some old Laws, and making new. Some are already past and effected, as that for the Lords the Bishops sitting again in the Lords House in Parliament, and other things. These I offer with all hu­mility to be considered of, if it shall by those in Authority be thought fit, otherwise to be as unsaid: Protesting that I re­tract, as before, any thing which is here mentioned, that shall appear contrary to Gods Word, His Majesties Prerogative, or the Laws of the Land, or the just policy and government of any of His Majesties Dominions.