The Christian moderator. Third part. Or, The oath of abjuration arraign'd by the common law and common sence, ancient and modern Acts of Parl. declarations of the Army, law of God and consent of reformed divines. And humbly submitted to receive judgment from this honorable representative. — Christian moderator. Part 3

The Christian moderator. Third part. Or, The oath of abjuration arraign'd by the common law and common sence, ancient and modern Acts of Parl. declarations of the Army, law of God and consent of reformed divines. And humbly submitted to receive judgment from this honorable representative. — Christian moderator. Part 3

Table of contents

Title page

THE OATH OF ABJƲRATION Arraign'd, &c.

ERRATA.

THE OATH OF ABJƲRATION Arraign'd, &c.

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Die Sabbathi. 19. Auguſti 1643.

BE it Ordained by the Lords and Commons aſſembled in Parliament; That all ſuch perſons, as being of the Age of one & twenty years or above, ſhall refuſe to take the Oath hereafter expreſſed, which Oath any two or more of the ſaid Committees for Sequeſtration in every County, City or place reſpectively, or any two Iuſtices of the Peace, or the Major, Baliffs or other head Officer of any City or Town Corporate ſhall have power to Adminiſter to any ſuch Perſon or Perſons, ſhall forfeit as Papiſts within this and the former Ordinances, and Seizure & Sequeſtration of two third parts of all their Goods and Eſtates reall and perſonall, and ſale of ſuch proportion of their Goods, ſo Seized and Sequeſtred, ſhall be made, and their Rents and Eſtates diſpoſed of, in ſuch Manner and Proportion, and by ſuch Perſons, as by the ſaid Ordinance of Sequeſtration is appointed for Papiſts. The Tenor of which Oath followeth.

The OATH.

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IA. B. Do abjure and renounce the Popes Supremacy and Authority over the Catholick Church in generall, and over my ſelfe in particular, and I do believe that there is not any Tranſubſtantiation in the Sacrament of the Lords Supper or in the Elements of Bread and Wine after Conſecration thereof by any perſon whatſoever; and I do believe that there is not any Purgatory; and that the conſecrated Host, Crucifix or Images ought not to be worſhipped, neither that any worſhip is due unto them; And alſo believe, that Salvation cannot be merited by Workes; And all Doctrines in affirmation of the ſaid points, I do abjure and renounce without any Equivocation, mentall Reſervation, or ſecret Evaſion whatſoever, taking the words by mee ſpoken, according to the common and uſuall meaning of them. So help me God.

MY Teares are on my Cheekes,Lam. 1. and mine Eyes run down with Water,Lam. 4. 1 becauſe the Comforter, that ſhould relieve my ſoule, is far from me:Jer. 14. 19. how is the Gold become dim, and the moſt fine Gold changed?Lam. 2. 19 How have we looked for the time of healing and behold trouble? Ariſe, cry out in the night, in the beginning of the Watches, poure fourth thy heart like Water before the face of the Lord, for they have healed the hurt of the Daughter of my people ſlightly, they have ſtill left a dangerous wound even in the heart of our liberty. Jer. 8. 22. Is there no Balm in Gilead? is there no Phiſitian? why then is not the health of the Daughter of my people recovered? Why are theſe Oathes continued with ſo ſharpe a double edge, that unavoidably they either cut the purſe or kill the Conſcience?

I confeſſe my own weakneſſe in the Government of my ſelfe, I confeſſe my own ignorance in preſcribing to others; yet the deſires [Page] of proſperity to this Nation have taken ſuch ſtrong hold upon my Soule, and I feel my Spirit ſo powerfully drawn forth to advance the things that belong to its peace, that I cannot refrain my Pen from humbly and earneſtly ſoliciting a more firm and perfect eſtabliſhment of the two principall Pillers of all flouriſhing Common-wealths, Mercy to ſuch as ſuffer for Conſcience; and impartiall Juſtice to all men.

As theſe conſiderations have engaged me once more to expoſe the moſt ſecret and retired thoughts of my heart to be ſeen by others; So I aſſure the Reader this ſhall be their laſt appearance in publique, that he may reſt ſecure from all fear of loſing his time upon any thing of mine hereafter: But leſt I offend too much in the preſent trouble I give him; I ſhall imediatly apply my ſelfe to my task, and endeavour with a gentle, yet faithfull hand, to open the orifice of the neglected wound, humbly imploring the gratious influence of Heaven to govern our Great Colledge in their grave and charitable conſults for the perfect cure of all our ſorrowes.

And in ſearching how mortall a ſtroake ſuch Oathes, as this of Abjuration, give to the known Rights, and Priviledges of the People of this Land, my Method ſhall be directed by theſe Heads.

That they are Fundamentally repugnant to the Common Lawes and ancient Statutes of this Nation. Directly contrary to many Acts even of the laſt Parliament, and Declarations of the preſent Army. Abſolutely prohibited by the Law of God, and inconſiſtent with the generall judgement of all Reformed Churches.

MAgiſtrates being originally inſtituted for this principall end,Thoughts unpuniſht becauſe unoffenſive. to maintain a juſt order & harmony in the outward Motions of the multitude, it neceſſarily followes that the generall deſigne of Government is little concerned, what noat we make in our ſingle ſelves, if we be in tune with our Companions.

Upon which ground the Common Law of this Land directs all its care to rule and treat us, as we are conſidered in reference to one another, and therefore neither limits our private expences, nor obliges to any courſe of Phyſick; becauſe our particular fortunes and health are of very little importance to the Publique, and of very much to our ſelves; And ſince nothing is more reaſonable then to entruſt thoſe with the managery of an affair, whom [Page] the iſſue moſt concernes, it cannot be denyed, but as this freedom (without which we were abſolute Slaves,) is allowed us in relation to our Bodies and Eſtates: So our Souls (as far as may conſiſt with the publique peace) ought to enjoy a juſt and proportionable ſhare in the ſame liberty.

Much leſſe doth the Law either puniſh or reward our thoughts, becauſe they neither diſappoint nor advance its ends; The intention of Murther (though in the higheſt degree of premeditated malice) is no way ſubject to any legall account, if the miſchievous purpoſe ſtay at the fancy, and proceed no farther to any outward attempt: By which neceſſary diſtinction betwixt Divine and Human Juriſdiction, the Law religiouſly preſerves its reverence to the great Tribunall of God, before whom only, we are to anſwer for the private errors and ſecret vices of our hearts, as we are accountable to the Magiſtrate for the open Crimes and ſcandalous Actions of our hand [...].

If any conceive it juſt to enact a Law againſt Erroneous Thoughts in Religion, with an Oath of Aburation to make the ſuſpected accuſe himſelf, why ſhould they not as well impoſe a penalty upon the vicious Thoughts of Hatred, Revenge or Ambition: And then force every one to ſwear whether he be guilty? Certainly Magiſtrates may as lawfully put us to our Oathes, whether we have aſſented to any traiterous thought againſt our Country, or coveted our Neighbours Goods or Wife, as what we think of ſuch a point of Divinity.

Should it be pretended, that the Oath of Abjuration commits no force upon the mind, but only upon the mouth; gives free leave to think what we will, if we ſwear as it commands; Such liberty of Conſcience (to believe in our hearts contrary to what we profeſs with our lips) Nero himſelf allowed; Such liberty of Conſcience (that is, damnable hypocriſy) is indeed the proper and naturall effect of compulſion upon the Conſcience: Surely by this glorious word (liberty) ſomething more is intended to be left us, then what no Tyrant can take from us; Surely it ought at leaſt to be ſo curteouſly interpreted, that by this kind phraſe (Liberty of Conſcience) be underſtood a liberty conſiſtent with Conſcience; a condition, wherein every peaceable Chriſtian may follow our Principles, without renouncing his own honeſty: yet I confeſſe it puzzels all the reaſon I am owner of, that they who take this Oath (though very credibly againſt their Conſciences) ſhall enjoy the [Page] full benefit of tender Conſciences; And if any refuſe it (becauſe againſt his Conſcience) he is wholly excluded from the leaſt mercy provided for tender Conſciences.

Beſides,Thoughts not puniſhed becauſe incapable of proof. this diſpuniſhableneſs of thoughts ariſes as well from the impoſſibility of lawfull proof, as from their innocency in not offending others; And therefore a ſecret promiſe (though moſt ſeriouſly and deliberatly reſolv'd on) if reſerved in the parties own Conſcience, creates no legall Obligation of performance; which could not be true,Doctor and Student p. 104. if the Law did allow any proceeding, whereby the party were compellable to accuſe himſelfe.

And therefore, even in Chancery (though that be a ſwearing Court) if a Bill of Perjury be ſued upon the Statute (5.Dyer 288. 49 Ed 3 [...]1 Challenge 100. Eliz.) the Defendant ſhall not be forced to make Anſwer upon Oath either to the Bill or Interrogatories. So if a Juror be challenged for partiallity, grounded upon ſome indifferent and unreproachfull objection (as Kindred to one of the parties, &c.) he ſhall be admitted to clear ſuch a queſtion by his own Oath; but if the charge be either ignominous or dangerous, as bribery, &c. the challenger muſt maintain his Aſſertion by witneſſes;Crompton in his Juſtice of P. 193. It being unreaſonable (in the wiſe and moderate judgement of the Law) that any one be enforced to become his own accuſer. With theſe agree many other Authorities, all unanimouſly ſubſcribing to this concluſion, as an undeniable Maxime of Law,Dalton 299 Fullers Argument 10. that, None can be lawfully examined upon Oath, concerning any thing that ſounds to his own prejudice.

Nay ſo great an abhorrence has the Common Law of the parties being forced to proſecute and condemn himſelf, that it employs an extraordinary diligence to prevent ſo deſtructive an abuſe; And therefore in Fitzherberts Natura Brevium, if any had been cited into the Spirituall Court to accuſe himſelf pro ſalute Animae, as they call'd it, a Prohibition lay at the Common Law to ſtop and ſuperſede their proceedings; And it is a caſe adjudged, that, if in a paenall Law, the juriſdiction of the Ordinary be ſaved, as in 1 Eliz. Coke mag. circa 657. 2. for hearing of Maſſe, the party ſhall not be examined upon Oath before the Ordinary concerning that point, becauſe it might becom an evidence againſt himſelfe,Leighes caſe. & 18. if queſtioned afterwards in the temporall Courts, which is a direct Authority in the very point out of a Book licenſed and Printed by ſpeciall Order of the laſt Parliament, Eliz. Dyer 175. cleerly proving, that as the Papiſts ought to be tryed by witneſſes,Hinds caſe. and not themſelves examined upon Oath, [Page] concerning their going to Maſſe; So, much leſs concerning their inward belief, eſpecially when ſuch ruine attends them in their Eſtates, if they dare refuſe to ſweare againſt their Conſciences.

It is true by the Common Law in ſome perſonall Actions the Defendant is admitted (not compelld) to his Oath, as in Caſe of wager of Law, 21 Ed. 3. 10. &c. 33. H. 6. 10. of non ſummons in a Praecipe quod reddat, and of garniſhment, upon a Scire Facias, &c. But all theſe Oathes are either voluntarily offered by the party himſelf, not enforced upon him by the Judges, and go in diſcharge, not condemnation of him; or elſe concern only ſome collaterall paſſage of little importance to the deciſion of the main controverſie, nor is the leaſt ſhadow of ſuch practiſe to be ſeen in any penall Law, which is the only point we diſpute upon, and which we here undertake to prove; a proceeding altogether unknown to our Lawes, that any one ſhould be conſtrained to inform againſt himſelf, and ſo become his own Executioner.

Upon this ground Sir Thomas Moore (a perſon compleatly learned in the Lawes of this Land, and univerſally famous for courage and reſolution, according to his principles) refuſed the then new Oath concerning the Kings Supreamacy and Divorce, alleadging for his defence at the Bar, that he never ſpake or acted any thing againſt that Statute, and upon this Plea he relyed, as an evident juſtification in Law, which never (ſaid he) was ſtrained ſo far as to reach our thoughts; and for his inward judgement, he freely profeſt that Oath to be againſt it, offering before the Judges to ſweare, that the unſatisfaction of his Conſcience therein was the onely cauſe of his refuſall to comply with their Commands.

And if we look back upon times behind us, we ſhall often ſee the outward words and actions cenſured by the Magiſtrate, but never the leaſt attempt upon theThoughts not puniſht by Acts of Parliament before the Reformation. inward belief; though the principles heretofore entertained concerning the uſe of force in Religion have generally been far more rigid, then thoſe we now profeſſe.

Therefore in the Acts of 5. Hen. 2. 5. & 2. Hen. 4. 14. & 2. Hen. 5. 1. (made even in Popiſh times which we ſo much condemn for cruelty) thoſe that began new opinions contrary to the received Religion of the Nation,5 Hen. 2. 5 2 He. 4 14. 2 Hen. 5. 1. are prohibited to Preach publickly any doctrine deſtructive of the Eſtabliſhed Lawes, or by their ſubtile [Page] Sermons to draw the people after them; But not a word of forcing to ſwear the contrary.

They are forbidden to write Books in defence of their ſingularities, or make unlawfull Conventicles to the endangering of the publique Peace; But not a ſillable of renouncing what they believed in their heart.

The Statute of 31.31 & 34 Hen 8. Nor in the beginning of the Reformation. Hen. 8. 14. layes a forfeiture upon any that by Word, Writing, Printing, Publiſhing, Preaching or Teaching, ſhall maintaine any of the Opinions in ſix Articles therein prohibited: But not a Letter of Abjuring their inward perſwaſion.

And what the Lord Herbert in his Hiſtory of Henry the 8.Lord Herberts Hen. 8 fol. 447, 448. ſaith concerning this Statute is worth conſideration, his words are theſe. The ſix Articles being now publiſhed, gave no little occaſion of murmur, ſince to revoke the Conſcience not only from its own Court, but from the ordinary wayes of reſolving Controverſies, to ſuch an abrupt deciſion of the Common Law, as is there ſet down, was thought to be a deturning of Religion from its right and uſuall courſe; ſince the Conſcience muſt be taught, not forced; without that it ſhould at any time be handled roughly, as being of ſo delicate a temper, as though it ſuffer an edge to be put on, who doth more, diminiſheth or breakes it: Beſides to make the contravening of Doctrines, to be capitall, before they be fully proved, is prejudiciall to that liberty, without which none can juſtify himſelf before God or Man: For if it be death (and Sequeſtration is a kind of death) to believe otherwiſe then wee are commanded; how unſafe will it be to make exact enquiry? and without it, who can ſay his Religion is beſt? Beſides the Example is dangerous; For if Infidels and Heathens (to retain their People in obedience) ſhould do the like, who would ever turne Chriſtian? Therefore Cranmer for three dayes together in the open Aſſembly oppos'd theſe Articles boldly, &c. Thus far this learned Hiſtorian.

The Statute of 1 Edw. 6. 1. (in the beginning of the Reformation) continued the ſame ſtile of puniſhing only the outward Act, whilſt it declares, if any ſhall deprave, despiſe or contemn the Sacrament of the Altar (ſo called in the Act, according to the Language of thoſe times) he ſhould ſuffer impriſonment and make fine and ranſom at the Kings pleaſure. Nor ſince the Reformation.

In the Statutes of 1. Eliz. 1. & 8. Eliz. 10. it is Enacted; That if any perſon ſhall by Writing,1 El [...]z. 1. 8 Eliz. 10. Printing, Teaching or Preaching extoll, &c. The authority of the Biſhop of Rome, or by any Speeches, [Page] Deed or open Act attribute any authority here in England to the ſaid Biſhop, hee ſhall incur the penalty mentioned in that Statute.

Agreeable to the former Statutes is (13 Eliz.13 Eliz. 12 c. 12.) being the Act made for the ſubſcription to the Articles of Religion, then newly modelled into a publique forme of confeſſion of Faith. The words of the Act are theſe. If any ſuch Eccleſiaſticall perſon ſhall adviſedly maintain or affirme any doctrine directly contrary or repugnant to the ſaid 39 Articles, and ſhall perſiſt therein and not revoke his errour, ſuch maintaining or affirming and perſiſting, ſhall be juſt cauſe to deprive ſuch perſon of his Eccleſiaſticall promotions. Upon which Statute theſe things are obſervable.

Firſt, that theſe ſubſcriptions being concerning matters of Faith are required of Schollers and Divines upon their pretence to Church preferments, not of lay perſons, to diſpoſſeſſe them of their temporall inheritances.

Secondly, they muſt maintaine or affirm ſome doctrine oppoſite to theſe Articles, to bring them within the penalty of that Law. So that the believing only of the contrary is not ſufficient.

Thirdly, ſuch maintaining or affirming is to be voluntary, and not drawn out of them by the rack of an Oath.

Fourthly, it, being made a cauſe of Deprivation, muſt be by witneſſes, and not by the enforced abjuration of the party.

Fifthly, they are to loſe only their Eccleſiaſticall promotions, and not to be deprived of their temporall Eſtate. Not one of theſe ſo rationall and neceſſary cautions is at all now conſidered in the modern proceedings againſt Papiſts; but the moſt unlearned Tradeſman and ignorant Woman amongſt them are compel'd to accuſe themſelves, their Judges never asking after witneſſes; And this under forfeiture of full two thirds of all their Goods and Lands.

And even in the laſt Parliament many Ordinances have followed the ſame way of prohibiting externall diſorders, Norby the laſt Parliament it ſelf. occaſioned from difference in opinions, but not preciſely for the bare difference in opinion; As that of the 11 Aug. 1645. made by the Lords and Commons. 11 Aug. 1645. Wherein it is Ordained, that what perſon ſoever ſhall endeavour to bring the Directory into contempt, or raiſe any oppoſition against it, or ſhall practiſe, write or Print, or cauſe to be written or Printed any thing in derogation or depraving of the ſaid Directory, ſhall loſe and forfeit for ſuch offence ſuch a ſum of money, as ſhall at the time of his conviction be thought fit to be impoſed [Page] upon him, by him before whom he ſhall have his tryall.

Conformable to this was an Order made in Parliament Decemb.22 Decemb: 1646. 22. 1646. The Parliament taking into conſideration, that ſome Anabaptiſts and other Sectaries have diſturbed the Miniſters and Congregations in ſome Churches of this Realme, in disparagement of the Lawes, Statutes and Governments thereof, do Order that the Conſtables and Headboroughs within their ſeverall Pariſhes, &c. ſhall arreſt the bodies of all ſuch perſons as ſhall diſturbe any Miniſters in holy Orders, whilſt he is in place of exerciſing his publique Calling, by ſpeaking to him, or uſing irreverent geſtures or actions; and that they carry the bodies of ſuch Offenders before ſome Juſtice of Peace of the ſame County to be dealt with, as to Juſtice ſhall appertain.

So likewiſe 9.9 Aug. 1650. Aug. 1650. It is Enacted, that every perſon that ſhall preſume avowedly by words to profeſſe, or ſhall by writing proceed to affirm any Blaſphemous, Atheiſticall or execrable Opinions derogatory to the Honour of God, ſuch perſons ſo avowedly profeſſing, maintaining or publiſhing the ſaid Opinions or any of them, ſhall incurr the penalties of the ſaid Statute. Which ſhewes plainly that the laſt Parliament thought it not fit to puniſh any for erroneous Opinions, (though of the higheſt nature) If the party ſhall onely believe them in his heart, and keep them within his own breaſt.

Laſtly, (as a finall deciſion of this point and full ſatisfaction of thoſe objections, which ſome make againſt the validity of an Ordinance) it was Enacted (17 Car.) by the King, Lords, and Commons, That no perſon whatſoever exercizing any Eccleſiaſticall (much leſſe temporall) juriſdiction ſhall tender any Oath to any perſon, either Ex Officio or at the inſtance of any whoſoever, whereby he may be charged to confeſſe or accuſe himſelf of any crime, and ſo expoſe himſelfe to puniſhment: then which no clearer or more definitive ſentence can be imagined.

And (which is very obſervable) never in former times was any Abjuration required, but of ſuch, as were firſt legally convict of Hereſy; Never till theſe times, was the Abjuration it ſelf made the conviction,2 Hen. 4. 15 and therefore in the Statute of 2 Hen. 4. 15. Theſe two conditions are punctually expreſt, That in caſe of Abjuration the opinion to be abjured be a known hereſy, and the party to abjure be legally found guilty, before they proceed to exact his Abjuration.

[Page] According to this tenor run many other Statutes both ancient and modern, which my deſign of brevity enforces me to omit, and the full ſufficiency of the Lawes already cited renders altogether unneceſſary; only I ſhall deſire leave to extract theſe few ſound and excellent words out of the Petition of Right, 3 Car. That no free men be compelled to take any Oath, not warranted by the Lawes of the Realme.

This being then concluded, that thoughts are free from all humane Lawes, and ſelf accuſation contrary to the Engliſh Lawes; it is very ſuitable to our Method, to conſider next what proviſion our Common-wealth has made for diſcovery and conviction of Offenders; Wherein after I have ſlightly toucht ſome of the Arguments mentioned in the firſt part of this Moderator, I ſhall paſs on to thoſe aditionall reaſons I have ſince collected,

And that the way of Indictment and conviction of witneſſes and Jury is the only proceeding owned by the fundamentall Lawes of this Land,

IS abundantly proved by the chief Author and ſureſt defender of all our Liberties, Magna Carta, ſo often confirmed in our ancient Parliaments, ſo reverently upon all occaſions cited by the laſt: where every Engliſh man may read with joy theſe precious words. No free man may be arreſted or impriſoned, but by due Proces of Law. No man ſhall be put out of his freehold by either the King himſelf, Coke Mag. Carta. 45. & 46. or any Commiſſioners, but every ones right to be tryed by a Jury of his equalls. Of which happy-freedom the Papiſts (who long ſince procured it for this Nation) enjoy not now the leaſt ſhadow.

5 Ed. 3. 9. It is enacted that no man from hence forth ſhall be attached upon any occaſion, nor his Lands, Tenements, Goods, or Chattells ſeized againſt the form of the great Charter or againſt the Law of the Land. To this regular form of proceeding Thieves and Robbers have a cleer and allowed right, only Papiſts upon the ſingle account of Religion are altogether excluded.

25. Ed. 3. c. 4. None is to be convicted of any offence, unleſſe by indictment, or preſentment of good, and lawfull men, where ſuch offence is ſuppoſed to be done. This Juſtice every Murtherer can claim and no Judge dare deny; only the Papiſt whom we can accuſe of no other crime; then difference of judgement in Religion, is forced to convict himſelf by his own Oath, without the leaſt colour of any [Page] legall Indictment, ſo expreſly contrary to the known Lawes and ancient liberties of this Nation.

28. Ed. 3. c. 3. No man of what Condition or Eſtate ſoever ſhall be put out of his Lands or Tenements without being brought to anſwer by due proces of Law. This priviledge the moſt triviall fellow, that has but a Cottage to hide his head in, may uncontrollably challenge, and God forbid it ſhould be refuſed him; but then how is it reaſonable that Recuſants (many of them perſons of very conſiderable, quality) be diſpoſſeſt of ſo great Eſtates, upon their own enforced Oaths without any due proceſs of Law?

42. Ed. 3. cap. 1. It is enacted that the great Charter ſhall be held, and kept in all points, and if any Statute be made to the contrary it ſhall be void. Nay ſo great account have our wiſeſt Anceſtors made of this Magna Carta, ſo carefully provided for its preſervation and univerſall obſervance, that it has no leſſe then 30 times been ſolemnly confirmed by Authority of Parliament, as is at large declared in Sir Ed. Coke's 5. Report fol. 64. B. and in his 8. Report fol. 19. B.

42. Ed. 3. cap. 3. It is Enacted, That no man ſhall be put to anſwer without preſentment before Juſtices or matter of Record, or by due proces, according to the Law of the Land, and if any thing from henceforth be done to the contrary, it ſhall be void in Law and holden for error. No Court diſallowes this advantage to the worſt of Traitours; no Committee allowes it to the quieteſt of Recuſants.

All theſe ſo excellent Lawes (ſuch as no People under Heaven enjoy) were made when the Legiſlative power was abſolutely in the hands of Papiſts; all theſe Priviledge (ſo high and extraordinary that they deſerve the name, rather of the Peoples Prerogatives then their Liberties) the Papiſts obtain'd and eſtabliſhd in their times, & carefully tranſmitted to their poſterities: All theſe wiſe and prudent Cautions (which ſo ſafely fence and preſerve our Common Freedom from the encroachment of Arbitrary power) were providently contrived by the Papiſts, and from them are happily deſcended upon us. And ſhall we now, (having reform'd their Faith) forget our own reaſon ſo far, as to deprive our Brethren of the benefit of thoſe Lawes, which their Fathers made, only becauſe they reſemble them moſt in Religion? Shall we ſo far yeild to paſſion, as utterly deny them the immmunities of their Anceſters? [Page] Or can we poſſibly arrive at this degree of partiality, as not permit the greateſt Malefactor to be his own accuſer, and yet enforce the moſt peaceable Recuſant to be his own condemner? Nay though the Thief (arraign'd at the Bar) confeſſe his guilt, our Judges mercifully decline to condemn him, without ſome Teſtimony of witneſſes: But if a Recuſant will not voluntarily both arraign and condemn himſelf, the practiſe of Haberdaſhers Hall is, (without thinking of further proof) immediatly to proceed to Execution.

Nor was this tendernes towards the liberty of the ſubject regarded only in thoſe old dayes, but we have freſh Examples of a greater zeal and jealouſie, then ever thoſe times were acquainted with; For in the great Petition of Right (3. Car.) all theſe Statutes were particularly recited and earneſtly inſiſted upon by the Parliament then aſſembled. And yet a freſher inſtance is that of the laſt Parliament, who (in their Act for Regulation of the Privy Councell and abolition of the Star-chamber) did punctually repeat again all thoſe Statutes, and rely upon them as the Fundamentall and unchangeable Law of the Land.

Beſides, whereas Copy-hold Eſtates by the ancient Lawes and Cuſtomes of this Nation, were never comprehended within the generall words of any Act of Parliament, which alters the intereſt of the Land or the Cuſtome of the Mannor, to the prejudice either of Lord or Tennant, as is reſolved in Sir Edw. Coke's ſecond Report, fol. 8. Sir Fran. More's Reports 199. 428, &c. Becauſe no ſtranger can become Tennant of any Copyhold Eſtate, without the Lords ſpeciall aſſent and admiſſion; For which cauſe no Copyholds were ever lyable to any Execution of Statutes or Recognizances in debts or Formdon, nor were within the Statute of 2 Hen. 5. cap. 15. for Hereſy, nor were ſeizable within the Statute 29 Eliz. cap. 6. nor 3. Jac. cap. 4. for Recuſancy; Yet (contrary to this ancient fundamentall Law) the Copyhold Eſtates of every ſuſpected Recuſant are ſeized upon and ſequeſtred, although there be no Ordinance or Act of Parliament expreſly warranting any ſuch proceedings.

Thus have we clearly demonſtrated, that the onely courſe allowed by the Law for determination of all Controverſies, is the ordinary Proces by Writ in Civill Cauſes, and by indictment in Criminall and in both by Witneſſes and a Jury of the Neighbourhood, [Page] where the ſcene of the queſtion lies. And now we ſhall fully ſatisfy our undertaking, if we can alſo prove

That the late Parliament often engaged by ſolemn Acts and Declarations to maintaine the Lawes of the Land.

WHerein it is impoſſible for any that can reade Engliſh, to retain the leaſt doubt, when he has peruſed theſe few Citations.

26 May,Exact collections, fol. 267. Ib. fol. 660 1642. The Lords and Commons declare, That they will be very tender of the Lawes, which they acknowledge to be the ſafegard and cuſtody of all publique and private intereſt.

23 October 1642. They further declare, That they muſt owne it, as their duty, to uſe their beſt endeavours that the meaneſt of the Common-wealth may enjoy their own Birth-rights, Freedome and Liberty of the Lawes of the Land, being equally entituled thereunto with the greateſt Subject.

November 1642.1642. Ibi [...] fol. 694. They further declare, That ſlavery muſt be the Peoples condition, if the two Houſes ſhould goe about to overthrow the Lawes of the Land and the property of every Mans Eſtate.

26.Exact col. fol. 78. May 1642. If ſuch things may be done by Law without due proces, the ſubject hath a very poor defence, and a very ſmall, if any proportion of property thereby.

17 April 1646.Booke of Ordinances fol. 878 The Parliament declared, That they will not, nor any, by colour of any authority derived from them, ſhall interrupt the ordinary courſe of Juſtice.

The Parliament declared, 15 Junii. 1647. That they will preſerve unto the People their Lawes, and will Govern by them. And before and after they ſeverall times declared, that the Lawes of the Land are the undoubted birth-right and inheritance of the meaneſt Subject.

By a ſpeciall Act, 9 Febr. 1648. the Parliament of England declared, That they are fully reſolved to maintaine and preſerve the Fundamentall Lawes of this Nation, for and concerning the properties of the people with all things incident thereunto.

Now after all theſe Ordinances, who could be ſo undutifull as to entertain the leaſt fear of being ever hereafter forc'd to accuſe himſelf? Upon theſe ſo many ſo ſolemn Declarations, who could have excuſed the preſumption and perverſneſs of his heart, if he dared to doubt of their obſervance; Eſpecially ſince the Parliament did not [Page] proclaim to us its ſence by bare words, but advanced farther to ſevere Executions, and by the Example of the Earle of Strafford ſtrictly prohibited the introducement of any novelty in the practice of the Law. Againſt whom the Parliament in their third Article brought this charge, That he had proceeded ſummarily in the matter of the Lord Mont-Norris; And in the ſixth Article, his accuſation was, that he had diſpoſſeſt the Lord Mont-Norris of his Lands by a ſummary proces contrary to Law; And in the ſeaventh Article the like charge was againe repeated; That hee had deprived the Lady Hibbots of her poſſeſſions by a ſummary way of proceeding.

Theſe miſdemeanours (though not the only Crimes of which he was accuſed, yet) added ſuch a weight to his other offences that altogether they ſunk him into his Grave. In the whole courſe of whoſe tryall I meet with nothing more worthy to be ſtaid upon, then this conſideration; That the Parliament did not ſo much urge againſt him the illegality, as the unlawfulneſſe of his proceedings, nor condemn him barely for want of a Commiſſion or authority, but becauſe his Actions were in themſelves tirannicall, and dangerous encroachments upon the Fundamentall Liberty of this Nation; Yet he examined Witneſſes, but after a faſhion of his own deviſing, and left the common road of tryall by the verdict of a Jury.

And can there be a more ſummary Proces, then to accuſe any whom we ſuſpect of a Crime, and (unleſſe he immediatly ſweare himſelf unguilty) immediately condemn him, as guilty? Can there be a more quick and cutting diſpatch, then in half an houre to turne a juſt owner out of his ancient poſſeſſion, becauſe he will not ſwear againſt his Conſcience? and (which is yet worſe) can there be a more compendious (if not prepoſterous) way, then firſt to ſeize upon and ſecure the Eſtate, and then hear the party ſpeak for himſelf?Booke of O [...]dinances for ſequeſtrations fol 40 Yet theſe are the expreſs Inſtructions to the Committees for Sequeſtrations in the Year 1643. That where they find any doubt concerning any perſon whether hee be comprehended within the ſaid Ordinance (for Sequeſtration) they are to certify the ſame to the Committee of Lords and Commons for that ſervice, and in the meane time to ſecure the Eſtate of ſuch perſons, untill they receive further Inſtructions.

[Page] And now when I conſider the Office of a Parliament, which is principally to reform the abuſes, that time (conſpiring with our corrupted nature) brings into the adminiſtration of the Lawes, when I conſider the quality of the laſt Parliament, profeſſing ſo ſcrupulous and preciſe a reſpect to the preſervation of our ancient Liberties: I cannot ſufficiently wonder from what cauſe this unhappy effect ſhould flow, by which a free-born Engliſh-man is compell'd to be his own accuſer in matters of ſo tender a nature, as Conſcience and Religion, and of ſo high a concernment, as the utter impoveriſhment of himſelfe and his family; But after a little ranging about I ſoon diſcovered the fountain head in a dark hollow place, where three or four hundred ſprings of freſh water met together in one channell, of which, ſome having paſſed through hot and ſulphurous veines, quite changed the taſt and colour of the reſt, and the ſtormy weather of that ſeaſon quickly raiſed the whole ſtream into a fierce and violent current, whoſe fury ſoon broke the common banks and bore down all before it like a deluge. The truth of which Metaphor, is as eaſily proved, as the ſence of it underſtood; being no more then that the Introducer of this cruell Oath, was an Ordinance haſtily huddled up in the deſtroying time of Presbytery and War.

For then it was,Auguſt 17. 1643. that where the people had thown in their Rings and Jewels, there came forth the golden Covenant, before which all the Nation muſt fall down and worſhip.Book of O [...]dinan. 289. 408. Jul 19. 1643

Then it was the Presbyter-Divines petitioned both Houſes for a perfect Reformation and ſettling of the Kirk Diſcipline and Claſſicall Government.

Then it was that penalties began to be impoſed upon all Refuſers of the Covenant, G [...]eat Boo. of O [...]din. and none to bear Office but ſuch as had taken the Covenant;fol 240. 30. Nov. 1643. nay all be puniſht as ſpyes, that deny'd to take the Covenant.Ordin. 390. 399. 20 [...]. 1643.

Not long after was publiſhed the Directory or new Almanack to pray by, taken out of the Ephemerides of Scotland, and calculated for the Elevation of the new Kirk of England by the Aſſembly of well wiſhers to Divinity.Ordi. 404.

Not long after were the Apocriphall Elders brought in,Ordi. 802. and Tyrannicall Claſſes erected;November 26. 1644. Both the Houſes declaring their intentions to ſettle Religion in the purity thereof according to the Covenant, Gr. Booke of Ordin. 809. which ſurely was a miſtake in the Printer, to ſay Covenant inſtead of the Word of God. Thus plainly it appeares, that [Page] the Presbyterian Starres (or Comets rather, by the ſhortneſſe and terrour of their blaze) raigned in the firmament of our State at the birth of this unlucky Oath of Abjuration, and long after.

The ſecond branch of the task I undertook was, That theſe ſuddain and ſharp proceedings of ſequeſtring upon the bare refuſall of an Oath, without any legall proceſs, were occaſioned by the exigencies of the War; an aſſertion moſt fully and evidently proved by the firſt Ordinance againſt Delinquents and Papiſts;1. Apr. 1643 In the preamble whereof the Lords and Commons (reciting the calamities of the War) declare, That all the ſequeſtred Eſtates ſhould be applyed towards the ſupportation of the great charges of the Commonwealth; And in the firſt Inſtructions to the Committees, they are charged to uſe their beſt care and diligence for the ſpeedy execution of the Ordinance for Sequeſtration, as being a matter of great neceſſity and importance for the ſubſiſtence of the Army.Great Book of Ordin. fol. 360. and 511. And obſerving ſome ſlowneſs in the Committee, the Earl of Mancheſter (a Commander in chiefe) was empowred to execute that Ordinance; and the Sequeſtrators commanded to pay the money they raiſed, to the Committee of the Army.

One other argument there is, that inclines me to believe the Parliament intended this Ordinance only as a proviſion in thoſe diſtracted times, and not as a ſtanding Law for ever; elſe ſurely they would never have put into their Commiſſion ſo ſlight a thing as a Bayliff of a Corporation. Were it handſome that the Mayor of Riſing ſhould come down from thatching ſome triviall Alehouſe, to tender the Oath of Abjuration to the noble Earle of Arundell? or indeed how ſhould a common tradeſman (whom without breach of charity we may preſume can neither write nor read) know what he does, when he commands others to forſwear ſuch hard long words, as Supremacy, Purgatory, and Tranſubſtantiation? what ſhall we (that accuſe the Papiſts of blind obedience) ſay to our ſelves, when our very leaders are ſo ſhort-ſighted?

Tis true, all theſe fair and juſt exceptions are fully anſwered by this one word Neceſſity, a Heteroclyte that hath no Rule, no Law, and therefore, as it is without Law, to be judged without Law. But then at leaſt it ought to be a Law unto it ſelfe, that is, confined to circumſtances, wherein there is a true and reall neceſſity, and therefore during the furious violence and careir of war, ſuch ſummary [Page] proceedings (to prove without Witneſs and condemn without Jurors) might eaſily find excuſe, but being reſtored now to a perfect calm and univerſall peace, we are certainly obliged to return again to the known Engliſh tryall by Indictment and Conviction, and not continue ſtill throwing our neighbours goods overboard, ſo long after the ſtorm is ended.

If any object, though the reaſon of Neceſſity remains now no longer, ſince the gates of Weſtminſter Hall are open, and the old crowd of Suitors march peaceably there under the Scotch Colours; yet the Supream Authority of the Nation is bound to render no other account of their Acts, then the French King of his Edicts, which alwayes cloſe with this Frank and reſolute Period, Car tel eſt noſtre plaiſir.

1 I reply, firſt, That ſuch Objection ſeemes rather to accuſe the Government of Tyranny, then faithfully defend its Authority; no ſound approaching ſo nigh Antipathy to an Engliſh Eare, as that of being under an abſolute and unlimited Maſter, whether that boundleſſe and uncontrollable Power be lodged in the ſingle perſon of a King or the multiplyed of a Councill.

2 When by the change of circumſtances, any Law becomes unfit to be continued, we are not forbidden to repreſent, even to the higheſt Powers, our reaſons for a Repeale; if we carry our Addreſſes with ſuch regard, that they appeare to intend a Reformation of the Errour, not correction of our Superiors.

In which reſpect, never did any Parliament give ſuch high hopes of a thorow redreſs, as that which lately ſate, by erecting ſo carefully thoſe two grand Committees for regulating the Law and propagating the Goſpel, by inviting ſo ſolemnly all that would offer their propoſalls to come into their aſſiſtance. And as the whole Nation remains infinitely bound to the ſolicitude of the Army, for whoſe ſatisfaction both thoſe Committees were eſtabliſh'd: So are we all no leſs oblig'd to the Zeal of the Generall, by whoſe perſonall preſence every day at that of Religion it received ſo great Countenance and Encouragement. And therefore I ſhall not entertain the leaſt ſuſpition that theſe few thoughts of mine ſhould beget any offence, ſince they aim only to propoſe the unſuitableneſs of this new uncharitable Oath of Abjuration to the ancient and beſt Lawes of the Land.

Even the Pope admits his Subjects (when they apprehend ſome errour in the proceedings) to appeale from himſelfe miſ-informed, [Page] to himſelf better informed and yet we call his abſolute neſs, a Tyranny, and their obedience, blindneſs. How much more then may thoſe true lovers of their Countreys happineſs promiſe themſelves ſecurity, if not acceptance from the Parliament, who either by humble Petition or other modeſt and untumultuous way repreſent to their conſideration any miſ-practiſeor inconvenience, which in time might prove a dangerous precedent to the juſt liberties of their Country.

3 What ever the Supream Authority of a Nation may by abſolute prerogative command, yet the Supream Authority of this hath alwayes diſclaim'd ſuch Arbitrary Dominion, as Tyrannicall, and often engag'd by moſt ſolemn Declarations for the perpetuall continuance to the people of the Lawes they are acquainted with; amongſt which as there is none more fundamentall and ſingular to the Nation▪ then the ancient tryall by Witneſſes and Verdict, ſo we ſhall ſtill endeavour to make more evident ſo important a truth, by propoſing

A ſhort Paralell betweene this Oath of Abjuration and that Ex Officio.

IN the grand Petition ſigned by the 9.Sept. 1640. Lords, and preſented to the late King at York, we find this recorded as one of the principall grievances; That many innovations in Oathes and Canons had beene lately impoſed upon the Clergy and other his Majeſties Subjects, &c. In redreſſe of which miſchievous encroachment upon our juſt libertyes, In 17. Caroli. the late long Parliament enacted; That no perſon exerciſing any Eccleſiaſticall Power or Authority ſhall ex Officio or at the inſtance or promotion of any perſon whatſoever urge, enforce, tender, give, or miniſter to any perſon whatſoever any Oath, whereby he ſhall or may be charged to confeſſe or accuſe himſelfe of any crime, offence, delinquency, miſdemeanour, matter or thing▪ by reaſon whereof he ſhall or may be lyable to any penalty or puniſhment whatſoever.

Before which Statute (viz. 1607.) the unreaſonableneſs and illegality of that Oath had been clearly convinced by a learned Treatiſe of Oaths purpoſely written againſt it, as alſo by M. Fuller in his arguments at the then Kings Bench againſt ſome branches of the High Commiſſion Court▪ both which purſued their points ſo efficaciouſly, that the grievances they oppoſed were unanimouſly [Page] condemn'd as intollerable abuſes. And certainly no Mathematicall Demonſtration can bear a higher and clearer evidence, then that the principall reaſons (which I have here collected out of both thoſe Treatiſes) againſt that Oath Ex Officio are more ſtrongly appiable to this of Abjuration.

Thus then they begin their juſt charge upon that unjuſt Oath.1 Firſt, That contrary to the Law of Nature and the Fundamentall Lawes and Cuſtomes of this Nation, the party examined is thereby forced to ſweare againſt himſelfe in a criminall cauſe before he knows his Accuſer, and conſequently compell'd to be inſtrumentall to his owne puniſhment. This was condemned in the beginning of the laſt Parliament with infinite applauſe, as a moſt unſufferable Tyranny; but the Oath of Abjuration far exceeds it, even in its two worſt qualities, cruelty and illegality. Every Recuſant (whoſe Conſcience cannot down with the Oath) being unavoidably neceſſitated either to ruine his Soul by taking it againſt Conſcience, or his Eſtate by loſs of two thirds, if he refuſe it: Wherein there is one circumſtance practiſed, that raiſeth this Oath to a moſt exorbitant unconſcionableneſs; For as to thoſe, whoſe Judgements take any other road, as Antinomians, Socinians, or even Jewes, their courſe is ſmooth and free, but if we eſpy one whom we gueſs to be a Papiſt, and whoſe Conſcience we think is not plyant and nimble enough to leap over the block, then preſently this break-neck Oath of Abjuration is clapt in his way; againſt which our own hearts (if we but lay our hands upon them) will tell us, he muſt neceſſarily either ſtumble into a desperate poverty, or (which is worſe) fall down-right into a damnable perjury.

2 The Oath Ex Officio was aver'd to be a meer Alien, introduc'd by the Prelates, upon pretext of purging their Provinces of ſeduc'd people; but indeed to maintain their Hierarchy and tyrannize over the Conſciences of all diſſenters contrary to Law and Equity; This of Abjuration is a greater ſtranger, never heard of till 1643, when the Presbyterian faction thought it a fit engine to skrew up their intended Kirk-tyranny.

3 By the Oath Ex Officio, men were examined upon captious queſtions concerning their very Thoughts, to the ſifting and ranſacking of their Hearts and Conſciences, and were therein ſubjected to a farre greater Tyranny then that of the Spaniſh Inquiſition, which extends to words and actions onely. This of Abjuration compells even women and illiterate perſons poſitively to renounce (by meer adventure [Page] or implicite Faith) many controverſiall Doctrines, about which the greateſt Divines of Europe have ſo long diſputed, and are like perhaps never to agree; Nor is this Oath contented with a modeſt and ſimple profeſſing, that they do not believe there is a Purgatory: but abſolutely exacts of them to ſwear down right there is none, in the laſt period of the Oath, where they are enforced, to abjure and renounce all Doctrines in affirmation of the ſaid points. For my part, as I thinke it a wilde conceit, to hold there is a new World in the Moon; So I am ſure it is a deſperate preſumption poſitively to ſwear the contrary.

That Oath Ex Officio (being commonly tendered to ſuch as are ſuspected guilty of the crimes, whereof they are to cleer themſelves by their own Oath, or otherwiſe to undergo a penalty) muſt in all probability be an occaſion of frequent perjuries, to the loſſe not only of many Soules, but to the great abuſe of the name and majeſty of God. This of Abjuration expoſes men to the ſame danger, and God to the ſame diſhonour; And beſides hath been ſo far from ever gaining any true convert to the Proteſtant Religion, that it hath made many ſwear away that little Religion they had, and ever after profeſſe none: For ſuch indifferent and luke-warme Papiſts, as take this Oath, uſually ſay, they will rather truſt God with their Soules then the Common-wealth with their eſtates.

Whence certainly it was that the famous Judge,Cokes fourth Report, f. 95. Sir Edward Coke, breaks out into this complaint; Experience now proveth, the Conſciences of men are grown ſo large, that the respect of their private intereſts and commodities doth for the moſt part induce them to perjury. According to which he there ſets it down for a Rule, that, to ſwear in a mans owne caſe is frequently in this Age, the Devills precipice, whereby to throw men headlong into Hell. And yet to theſe ſtraits (which my heart even bleeds to think) hath this cruell Oath of Abjuration driven all Recuſants, live they never ſo peaceably and unoffenſively; This dangerous ſnare (for it deſerves no milder name, ſince we never think of endeavouring by any rationall motives to perſwade them out of their errours) lyes continually before their feet to entrap them. Where is our charity to Chriſtians, profeſſing the ſame Saviour, and believing the ſame Scriptures, with our ſelves? Where is our Juſtice to neighbours, equally entitled by their birthright to the ſame freedom with our ſelves? Is the extraordinary Liberty, we held forth to all the World, ſhrunk into this narrowneſſe, that any peaceable perſon, [Page] who profeſſes the Goſpell of Chriſt (though in ſome things miſtaken) ſhould by us be compel'd to this ſad neceſſity, either of abſolute forſwearing himſelf, or utter impoveriſhing his family, which in plain Engliſh ſignifies (I tremble to utter it) either Devill take his Soul, or Sequeſtrator his Eſtate. I acknowledg this a very harſh expreſſion, but he that reflects upon the generall proceedings hitherto with Recuſants, that we appoint no godly and gifted men to convert them, but only Committeemen to ruine them, will I feare finde too much truth in my words.

Upon occaſion of the Oath Ex Officio, See Book of Speeches, pag. 314. a learned Member moved in Parliament, (December, 1640.) That the Law might puniſh, not make Offenders; That words and actions might be ſubject to Law, Maſter Bagſhaw, ibid. p. 347 but thoughts be free. Another of the ſame learning and dignity (in a ſpeech in Parliament againſt the Oath Ex Officio) ſet upon it this publique Brand,Novemb. 7. 1640. That it was grown monſtrous, and become indeed no other then Carnificina Conſcientiae. Upon the ſame ground was built the fourth Article of the charge againſt the Biſhop of Bath and Wells, ibid p. 319 that he queſtioned one Maſter James a Miniſter of his Dioceſſe, not only for matters of outward fact, but likewiſe concerning ſecret thoughts.

All which extream and unſufferable inconveniences I confeſſe are ſo evidently appliable to the Oath of Abjuration, that you need but only change names, to make them exactly true of either except that in the one both far more difficult queſtions are required, and far greater penalties impoſed, whereas in the other, the point in doubt was very eaſie to reſolve, whether you had ſlept with your neighbours wife, and the puniſhment a little peece of money to repair Pauls.

And certainly it was with reflection upon this Oath of Abjuration, Maſter Hobbs in his Chriſtian Commonwealth, p. 378. that the learned Maſter Hobbs ſayes, There is another errour, to extend the power of the Law (which is the Rule of actions only) to the bare thoughts and Conſciences of men, by examination and inquiſition of what they hold; whereby men are either puniſhed for their very thoughts, or conſtrained to anſwer an untruth for fear of puniſhment; By which meanes they are forced to accuſe themſelves of their opinions, which is againſt the Law of Nature.

Nor doth this Oath of Abjuration extort the ſecret thoughts only, but compells the renouncing of ſome poſitions, which (in the opinion of divers venerable writers) are more receivable, then the Doctrine of ſome avowed Proteſtants. I inſtance in the [Page] point of Tranſubſtantiation (one of the Articles to be abjured) whichIn conſens. de re Sacram. Art. 24. p. 75 [...]. Calvin ſayes is more rationall then the Doctrine of Conſubſtantiation, and yet this the Lutherans (our brethren) unanimouſly hold.Part. 2. Hiſtor Sacram. fol. 754. Hospinian (another Proteſtant writer) ſayes the like; AndDe Coena Domini. p. 216. Beza acknowledges Tranſubſtantiation to be an inevitably conſequent of the Doctrine of the Reall preſence, which all Lutherans maintain, and is not againſt this Oath.

How then comes it to paſſe that the Reall preſence in the Lords Supper may be lawfully, at leaſt ſafely maintained, which many Proteſtants herein England do, and all Lutherans every where; yer under moſt ſevere penalties the intrinſick belief of Tranſubſtantiation muſt be abjur'd, which (in the judgement of thoſe famous Reformers) is an inevitable conſequence of it, and more rationall, then the opinion of Conſubſtantiation, yet this may be defended without being ſubject to the leaſt queſtion; Nay more, there is no Oath nor penalty againſt the publique profeſſing of Conſubſtantiation, no nor againſt the publick practiſe according to that opinion, and yet the very inward belief of Tranſubſtantiation is made ſo heinous a crime, ſo ſeverely puniſhable, that they who are but lookers on, and only ſee the burthens laid upon refuſers of this Oath, feel in their breſts a certain inſtinct by which they proteſt themſelves ſecretly and ſtrangely enforc'd to grieve and ſigh at the cruell and rigorous proceedings even of their own Party.

And that this compaſſion towards ſufferers, upon the account of Religion, riſes not ſo much from ſoftneſſe of Nature, as from the tenderneſſe of the Spirit, will certainly finde an eaſie belief, if, in ſtead of a flock of tame and weeping women, we can pick out an Army of victorious Soldiers, whoſe courage neither knows to fear the face of ſuch as threaten war, nor conſcience endures to force the heart of thoſe that will live in peace; Of which too evident truths, if any deny the firſt, let him read their paſt victories, if doubt of the ſecond, I deſire him to peruſe their following

DECLARATIONS.

NOw to the comfort and even amazement of the Spirit, let us contemplat the conſtant pious intentions held forth by the Army. No ſooner had their many victories rendred them the terror [Page] of the World, (our own as fearfully as neighbouring Nations expecting what great deſigne of blood they next would enterprize) but they threw aſide the cruelty and oſtentation of Conqueſt, and took into themſelves the bowells of mercy; They preſently look'd round about them on their afflicted Chriſtian Brethren: and, knowing nothing more precious, nothing more comfortable to the godly then liberty of conſcience, by their frequent Declarations to the World, and zealous addreſſes to the late Parliament, they manifeſted how unalterable they were in their holy Principles. No licentious avarice emboldned them to divide the ſpoile, no wantonneſſe provoked them to ſurfeit with the fruit of the Land they had ſubdued; So far from growing inſolent with ſucceſſe, that even their enemies have confeſt, There was never in any age known ſo great a modeſty in ſo continued a victory, nor ſuch excellent diſcipline in a conquering Army. Their own intereſt never regarded by themſelvs, only to improve the quiet & repoſe of the Conſciencious, was their endeavour, which they purſued with ſo religious a noble courage, that they took their lives into their hands, and with the greateſt hazard to ſelf-preſervation, removed that Power which grew ſloathfull, and halted in the way of Godlineſſe, and have moddel'd ſuch a Government, as ſhall intend chiefly to give balſome to the many wounds of the afflicted. This relief is the expectation and hope of many Conſciences now in anguiſh and tribulation, who cannot but with comfort remember, how the Army ever had that compaſſion which the Clergy wanted, and the Millitary piety hath beene ſtill eminent above the Civill or Eccleſiaſtick. What their godlineſſe will be, we cheerfully and confidently expect; what hitherto it hath, theſe enſuing Expreſſions will declare.

It was humbly deſired by the Army; Armies Declaration 14. Iune 1647. p. 12 That (according to the Declaration of the Parliament, promiſing a proviſion for tender Conſciences) there might be ſome effectuall courſe taken according to the intent thereof, and that ſuch, as upon conſcientious grounds differ from the eſtabliſhed formes, may not for that be debarred from the common rights, libertie and benifits equally belonging to all, as Members of the Common-wealth,Narration of the Army printed at Oxford. 1647. Pag. 11. whileſt they live ſoberly and inoffenſively to others, and peaceably and faithfully to the State.

Likewiſe, That ſufficient care be taken for the liberty and protection of thoſe, who cannot ſubmit to the externall worſhip of this Nation, though otherwiſe conformable to the civill power and authority therof.

[Page] They deſired, Army's Declaration 2. Aug 1647. That an Act might be paſſed to take away all Coercive Power extending to any Civill penalties upon any, for matters of Conſcience; and expreſly, That Papiſts be ſubject to puniſhment, onely for diſturbing the State,Page 7. and that men may not be compelled to take any Oath againſt their judgement and conſciences,Their Propoſals, 16 September 1647. but that all Orders and Ordinances to that purpoſe may be repealed.

That none may be compelled by penalties to anſwer to queſtions tending to accuſe themſelves;Page 8. And that conſideration might be had of all Statutes and Ordinances,Page 10. impoſing any Oaths, and that they might be either repealed or at leaſt ſo qualified, that they might not extend or be conſtrued to the moleſtation or puniſhment of Religious and peaceable people for non-conformity to fixed formes, bounds, and limits, thereby to confine Gods holy Spirit; as if Religion conſiſted more in ſuch outward formes and rites, according to the manner of Moſes, then in power and vertue according to the Goſpel.

Againe, Proceedings of the Army, 15 Novem. 1647. That matters of Religion and the wayes of Gods worſhip are not by them intruſted to any humane power, becauſe therein they cannot remit or exceede a tittle of what their conſciences dictate unto them, to be the word of God, without wilfull ſinne: nevertheleſſe the publique way of inſtructing the Nation, ſo it be not compulſive, is referred to the diſcretion of the Parliament.Page 9.

His Excellency and Council of War declare, That the Covenant be not enforced,Lord Gen. Cromwel's Declaration 1647. nor any penalties impoſed on the Refuſers, whereby men might be conſtrained to take it againſt their judgements, but that all Orders & Ordinances to that purpoſe might be repealed. That conſideration be had of Statutes,Pag. 10. 13 Laws & Cuſtomes of Corporations, impoſing any Oaths, & that they may be either repealed or ſo qualified, that they may not extend or be construed to the moleſtation or enſnaring of Religious & peaceable People, meerly for a non-conformity in Religion.

Again his Excellency thus learnedly and religiouſly, If outward things may not be contended for,Lord Gen. Declarat. 21. March 1650. much leſſe may the doctrines of Faith (which are the works of Grace and the Spirit) be endeavoured by unſuitable meanes: He that bids us contend for the Faith once delivered to the Saints, tells us we ſhould doe it by building up our ſelves in the moſt holy Faith,Pag. 2. 3. not pinning it upon other mens ſleeves, keeping our ſelves in the love of God, not deſtroying men, becauſe they will not be of our faith, &c.

As for the people (ſpeaking of Ireland) what thoughts they have in matters of Religion in their owne breaſt, I cannot reach, but thinke is my duty, if they walke honeſtly and peaceably, not to cauſe them in [Page] the least degree to ſuffer for the ſame,Pag. 5. but to endeavour to walke patiently, and in love towards them; to ſee if at any time it ſhall pleaſe God to give them another or a better minde.

And in a Letter to the then Governour of Roſſe in Ireland, Lord Generals Letter dat. 19. Octob. 1649. his Excellency (ſpeaking of Religion) ſayes, He meddles not with any mans private Conſcience.

The Army further declare, Narrarive of the Army 30. April 1649. That they doe not impower or intruſt their Repreſentatives to continue in Force or make any Lawes, Oaths, or Covenants, whereby to compell by penalties or otherwiſe, any perſon to any thing,Page 5. in or about matters of Faith, Religion, or Gods worſhip, or to reſtraine any perſon from the profeſſion of his Faith, or excerciſe of Religion, according to his Conſcience. Or to puniſh any perſon for refuſing to anſwer to queſtions in criminall cauſes.

Theſe Declarations of the Army were ſeconded by a Petition from the Cityes of London and Weſtminſter,Petition preſented 11. Sept. 1648. & Burrough of Southwark, to the Parliament, in theſe words, That they would exempt matters of Religion and Gods worſhip from the compulſive and reſtrictive power of any authority upon earth, and referre them to the ſupream power of Almighty God. And that the Parliament would not proceed in making Ordinances, or Lawes, or in appointing puniſhments concerning opinions, wherein themſelves may eaſily be miſtaken, &c.

On all oportunities, thus hath the Army declared what was the light they walk'd by in the dark thorny wayes of their precedent dangers; And in the endeavour that every Conſcience may have a comfortable repoſe, they continue conſtant ſtill, and vigorous; Nor can there be the leaſt ſuſpition of ſtraying from theſe religious Principles, having for their Guide, his Excellency, who hath fought his enemies as much into confuſion, by an unexampled regularity of manners, and holy encouraging to piety, by frequent exhortations, tears, and prayers, as by the ſharpneſſe of his ſword, and a courage ever invincible.

Our next Progreſſe ſhall be to evince the truth and holineſſe of theſe principles of the Army, againſt the enforcing of Oaths, & coertion in Religion, to be clearly eſtabliſh'd upon that ſure foundation

THE LAW OF GOD.

OF which three words, being of greater weight then three thouſand volumes of mens Diſcourſes, I ſhall content my ſelfe, and hope to content my Reader with the citation of theſe few Texts;

One witneſſe ſhall not riſe up againſt a man for any iniquity, Deut. 19 15. fault, &c. (much leſſe ſhall a man riſe up againſt himſelf) [Page] but in the mouth of two or three witneſſes ſhall the matter be eſtabliſhed; which Rule is confirmed in the Goſpel,Mat. 18. 16. In the mouth of two or three witneſſes ſhall every word be eſtabliſhed, And our Lord Chriſt himſelfe ſaid to the woman accuſed of Adultery,John. 8 11. Where be thy accuſers, if they condemn thee not, neither do I. In the proceedings upon this Oath of Abjuration, there is no accuſer, no witneſſe; the party himſelfe muſt be both againſt himſelf; and what can be more oppoſite to Scripture, then ſuch enforcement?

And that carnall men, and they, who build on the Authority of Academick learning, may ſee how abhorring to truth all force and violence offered to the Conſcience is: let their patience go a little forward and finde what have been

The Opinions of the moſt eminent Divines in the Reformed Churches.

NOne are to be compelled to profeſſe the true Religion,Ofiander Cent. 7. fol. 94. by impriſonment or loſſe of goods; The Magiſtrate ought to force no man to ſubſcribe Articles concerning Religion,Bucer Comment. Evangel. fol. 428. but that is to be left to the grace of God in every one, as the Lord ſhall direct.

The Magiſtrate miſuſes his power,Bucan. in loc. com fol 33. if he impoſe Lawes upon our Conſciences; For Paul did not ſubject the Conſciences of Chriſtians to humane Lawes,Sect. 18. but to the Ordinances of God.

Men are to be perſwaded to Religion by reaſon,Fox. Acts and Mon. fol. 1650. and 1638. not compelled thereunto by puniſhment: The Gospel allowes not the Law of compulſion to be put upon the Conſcience,Beza in his Theologicall Tract. fol. 90. and 118. but only of councell and exhortation.

The Scripture commands, that they who are weake in faith are to be borne withall, untill the Lord ſhall reveale unto them all ſuch things wherein they are ignorant, and in the meane while they ought to be inſtructed, not puniſhed.Calvin. Comment. in 1 Cor. 8. 7.

All men erring from the true Religion are to be reclaim'd by fatherly exhortations,Polanus Syntag. liber. 10. ca. 65. hearing the Word, and good inſtructions, not by force & violence. The Lord hath definitively declared, that the Magiſtrates are not fit Judges in matters of Religion,Jac. Acontius in Strat. Satan. fol. 158. and 161. and therefore hath interdicted them all uſe of ſuch Jurisdiction, and reſerved it to himſelfe, who at the laſt day by his Angels ſhall ſeparate the Tares from the Wheat.Perkins in 6. Galat. fol. 477.

God alone is Lord of the Conſcience, and hath left it free from the Doctrines and Commandements of men, which are in any thing beſide his Word in matters of Faith:Aſſembly of Divines Conf. of Faith, chap. 19. ſect. 2. ſo that to believe ſuch Doctrines, or to obey ſuch Commands out of Conſcience, is to betray our liberty of Conſcience, and the requiring of an abſolute obedience, is to deſtroy liberty of Conſcience and Reaſon alſo.

[Page] Faith hath no relation unto,Mr Hobs in his Chriſtian Commonwealth fo. 270. nor dependency at all upon compulſion and commandement, but onely upon certainty and probability of arguguments, drawn from reaſon, or from ſomething which men beleeve already: Therefore the Miniſters of Chriſt in this world have no power to puniſh any for not beleeving;1 Corinth. 1. 24 Fol. 271. ſince Paul himſelfe profeſſeth, We have no dominion over your faith. Epheſ. 2. Faith (both in reſpect of the Object and of the Aſſent) being the free gift of God; which Man can neither give nor take away by promiſe of rewards nor menace of tortures.Fol. 26 [...]. There is no coercive power left by our Saviour upon earth in matters of Religion, but onely a power to proclaim the Kingdome of Chriſt, and perſwade men to ſubmit themſelves thereunto, and by precepts & good counſel to teach them that have ſubmitted what to do, that they may be received into the Kingdome of God when it comes, &c.

Q.Camdens El [...]z. Eliz. in her owne private judgement often declared, That ſhe never thought it fit that the Conſciences of her Subjects ought to be enforced;Annis 1577. fol. 86. and 1581. fol 11. albeit the Biſhops prevailed with her againſt her own judgment to the contrary.

Nothing is more againſt Religion,M▪ [...]h [...]ll [...]ngworth. then to force Religion; For as Paul ſaith, the weapons of Chriſtian warfare are not carnall;Page 167. Humane violence may make men counterfeit, but cannot make them beleeve, and is therefore fit for nothing but to breed Form without, and Atheiſme within; and infinite prejudice to the Kingdome of Chriſt, and conſequently to the propagation of the Gospel doth follow thereby. Such who have their portions in this life, who ſerve no higher State; then England, nor this neither any farther then they ſerve themſelves, who think of no other happineſſe, but the preſervation of their owne Fortunes in this world, and of no other meanes to preſerve States but human policy, and beleeve no other Creed, but Regi aut Civitati imperium habenti, nihil injuſtum quod utile, ſuch it may become to maintaine by worldly power, and violence their State-inſtrument Religion; But they, who are indeed ſervants and lovers of Chriſt, know, that to no State any thing can be profitable, which is unjuſt and that nothing can be more evidently unjuſt, then to force men to the profeſſion of ſuch points of Religion, which they beleeve not.

They who run into extreames in oppoſition to the Church of Rome,M. Chil. in his Preface, fol. 7. they who put downe the Infallibility of the Church of Rome, and ſet up their owne, they who declaime againſt the tyranny of that Church, and themſelves exerciſe as great or greater over others, are the men that give the Church of Rome the greateſt advantage; whereas men of more moderate ſpirits, ſuch as require of Chriſtians to beleeve onely [Page] in Chriſt, upon ſuch as theſe the Church of Rome cannot tell how to faſten.Fol. 100. Nor can it be any way advantageous to the Civill State, that Men, without warrant from God, ſhould uſurp a Tyrannie over other mens conſciences, and preſcribe unto them without reaſon, and ſometimes againſt reaſon,Fol. 179. what they ſhould beleeve; We therefore are willing to leave all men to their liberty, provided they improve it not to a tyrannie over others.

This preſumptuous impoſing of the ſenſes of men upon the words of God,Fol. 180. and the ſpeciall ſenſes of men upon the generall words of God, and laying them upon mens conſciences together under ſevere penalties; the deifying of mens owne interpretations, and tyrannically impoſing them upon others, the reſtraining of the underſtanding of men, wherein Chriſt and his Apoſtles left them free, is and hath been the only Fountain of the Schiſmes of the Church. Take away this perſecuting of men for not ſubſcribing to the words of men, as the words of God; require of Chriſtians only to beleeve Chriſt; In a word, take away Tyrannie (which is the Devills inſtrument to ſupport Errors) and reſtore Chriſtians to their juſt and full liberty, and it may well be hoped by Gods bleſſing, that univerſall liberty, thus moderated, may quickly reduce Chriſtendome to truth & unity, the contrary effects whereof happen by the tyrannous impoſition of opinions upon other mens Conſciences,Fol. 198. whereby they are, as it were grievoſly exulcerated.

All the power of the world is neither fit to convince, nor able to compell a mans conſcience to conſent to any thing; indeed worldly terror may prevaile ſo far, as to make men profeſſe a Religion, which they beleeve not; ſuch men, who know not that there is a Heaven provided for Martyrs, and a Hell for thoſe that diſſemble ſuch Truths as are neceſſary to be profeſſed; But to force any man to beleeve what he knows not, or any honeſt man to diſſemble what he doth believe, if God commands him to profeſſe it, or to profeſſe what he doth not beleeve, all the ſwords in the world are too weak, with all the powers of Hell to aſſiſt them.Fol. 16.

It is a damnable ſin for any man to profeſſe an error againſt his Conſcience, though the error in it ſelfe and to him that beleeves it be not damnable; Nay the profeſſion not only of an error but of a truth, if not beleeved, is a mortall ſin, unleſſe hypocriſie and diſſimulation in Religion be not ſo.

If a Papiſt be convinced or perſwaded in conſcience,Fol. 19. that the Proteſtant Religion is irroneous, the profeſſion of it, though in it ſelfe moſt true, would be to him damnable. See his Reaſons, fol. 132.

[Page] Thus in a full ſpeed I have run over all that I could obſerve, to ſatisfy my Spirit concerning the illegality of this Oath in Common Law or Common Reaſon, in ancient or moderne Acts of Parliament, in the Declarations of the Army (when ſucceſſe had left them no employment but their piety) in the Opinions of the moſt Learned Reformed Divines, and above all in the Law of God; And the charity I owe my afflicted Brethren hath forc'd me to communicate this to the Godly and Religious, that they may with compaſſion reflect on thoſe who eat their Bread moiſtned with their Teares, and weep over their Houſes, become deſolate, becauſe they would keep up their Conſciences from ruine.

I have collected this for information of ſuch, who have bowels, and diſdain a glory or benefit that may riſe by treading on their necks, who ſuffer only for Religion; Who (if they err) err to their own temporall prejudice, and can in their error have no deſign of fleſh and bloud; Whom diſcover'd to have any conſpiracy againſt Government I would have moſt ſeverely puniſhed, & whom quiet and inoffenſive in practiſe of their own Conſciences, I would have pittied and relieved; And this I ſeriouſly deſire all religious ſpirits to weigh in their moſt godly and moſt prudent thoughts; That looking back on the laſt hundred years, they ſhall finde every ſubverſion of Government in this Nation (either Papall, Prelaticall, or Presbyterian) to have bin wrought by a too rigorous coertion of the Conſcience; Religion ever falling down to the duſt, when it leanes too much on the weak treacherous Prop of humane Policy, or endeavours to ſtand only by puniſhment of their brethren, modeſtly diſſenting in ſome opinions.

And why may not I with an humble boldneſs lay down theſe Obſervations at the door of the ſupream Autority the Parliament, &c. now ſitting at Weſtminſter? Why may I not ſolicite their mercy (by contemplating, what a ſeries of providences have fettled them in the preſent Power, and redeemed their Conſciences from a deſign'd ſlavery) to take into their firſt conſideration the deplorable condition of the moſt oppreſs'd people in the world? Why may not the ſeverity of the Eternall Juſtice, executed on former Governements, inſtruct them to meekneſs towards their Brethren in ſuch a ſad forlorn affliction? and thereby preſerve themſelves and their ſucceſſors to a continued bleſſing by that Hand, which ſhakes down the Pallaces of the proud and uncompaſſionate, and out of their rubbiſh builds up a Tabernacle of glory for the humble and mercifull.

[Page] Nor can I at any diſtance how remote ſoever (though we ſquint on carnall intereſts) diſcover whence any the leaſt prejudice can reach the Government, in not offering violence by Oaths to the Conſcience; unleſs we reckon on the loſs of that Rent is annually extorted by violence from the Conſcience? And how unhandſom and (above that) unchriſtian will it appear, that we can tenderly maintain every Congregation, but only that, the not protecting which is for our temporall emolument and ſupplies of the Treaſury; In recompence whereof, we may bring in the univerſall comfort of the whole Nation, when liberty of Conſcience ſhall be ſo generall, that in that harmony no one ſtring ſhall be out of tune; Every ſpirit charitably embracing each other, and though not fully conſenting in every circumſtance, yet all agreeing in one belief of one God, and one acknowledging of one Mediator.

And thus in a perfect unity at home, how ſafe ſhall we be againſt the ſordidly avaritious, or diſorderly ambitious of our enemies abroad; who as they feare that Sword, which the Almighty hath put into our hands; So will they court that Nations friendſhip, which is ſo piouſly frindly in it ſelfe. How religious will they believe all leagues? how happy all commerce with a people ſo conſcientious, that (only on the account of tenderneſs) throwes away the covetous ſeverity of their Predeceſſors, and takes into one common liberty every Conſcience under their protection. To offer the reputation and honour hereby to be gain'd with our moſt powerfull Neighbours (which notwithſtanding the wiſeſt and nobleſt Republiques have ever highly valued) may perhaps be rejected, as a carnall vanity; But the many bleſſings which the Eternall Mercy may be humbly hoped, will hereupon plentifully ſhowre down upon the mercifull, is comfortably to be reflected on. Every Conſcience thus ſet at liberty, being obliged in all Chriſtian duty, continually to invoak a happineſſe on thoſe Governors, who have broken aſunder the fetters in which ſo many were ſadly bound up, and who have enlarg'd them to ſing Hymnes of praiſe for ſo great, ſo charitable a Deliverance.

WILL. BIRCHLEY.

FINIS.

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THE Chriſtian Moderator. THIRD PART. OR, The OATH of ABJƲRATION ARRAIGN'D BY THE

Common Law and Common ſence,

Ancient and modern Acts of Parl.

Declarations of the Army,

Law of GOD and conſent of Reformed Divines.

AND Humbly ſubmitted to receive JƲDGMENT From this Honorable Repreſentative.

ESAY. 58. 6. 8.

Diſſolve the Bonds of Iniquity, take off all heavy Burthens, break every Yoke, and let the oppreſſed goe free.

Then ſhall your light break out as the morning, and your health spring forth ſpeedily: your Righteouſneſſe ſhall go before you, and the Glory of the Lord gather you up.

LONDON▪ Printed by J. G. for Richard Lowndes at the White-Lyon in S. Pauls Church-yard, 1653.

ERRATA.

PAge 11. lin. 28. read Priviledges, p. 14. l. 14. r. all together, p. 22. l. 30. r. two evident.

Information about this book

Title statement

The Christian moderator. Third part. Or, The oath of abjuration arraign'd by the common law and common sence, ancient and modern Acts of Parl. declarations of the Army, law of God and consent of reformed divines. And humbly submitted to receive judgment from this honorable representative.Christian moderator. Part 3

Birchley, William, 1613-1669.

Edition statement

1653

Publication

Publisher

Text Creation Partnership,

Place of publication

Ann Arbor, MI ; Oxford (UK) :

Date

2008-09 (EEBO-TCP Phase 1).

ID [DLPS]

A75812

ID [STC]

Wing A4248

ID [STC]

Thomason E705_15

ID [STC]

ESTC R207108

ID [EEBO-CITATION]

99866179

ID [PROQUEST]

99866179

ID [VID]

118443

Availability

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.

Series

Early English books online.

Notes

(EEBO-TCP ; phase 1, no. A75812)

Transcribed from: (Early English Books Online ; image set 118443)

Images scanned from microfilm: (Thomason Tracts ; 109:E705[15])

Source

— The Christian moderator. Third part. Or, The oath of abjuration arraign'd by the common law and common sence, ancient and modern Acts of Parl. declarations of the Army, law of God and consent of reformed divines. And humbly submitted to receive judgment from this honorable representative., Christian moderator. Part 3, Birchley, William, 1613-1669..

Extent

[2], 30 p.

Printed by J.G. for Richard Lowndes at the White-Lyon in S. Pauls-Church-yard,. London, :: 1653.. (Signed at end "Will. Birchley", the pseudonym of John Austin.) (Title page and A2v in red and black.) (The words "common law .. divines." are bracketed together on title page.) (Annotation on Thomason copy: "July. 14".) (Reproduction of the original in the British Library.)

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