in a Statute since repealed by Queen Mary a great number of particular causes of Jurisdiction Ecclesiastical are there by the way rehearsed that Ordinaries and other Ecclesiastical Judges might and did then put in execution So 1 Mar. c. 3. 1 Eliz. c. 1. 5 Eliz c. 23 9. That Perjury or Subornation in a Court Ecclesiastical shall and may be punished by such usual and ordinary Laws as heretofore have been and yet are used and frequented in the said Ecclesiastical Courts Which proveth the usual practice of Jurisdiction Ecclesiastical hitherto used without any special assent to be lawful So 13 Eliz. c. 4. c. 10. and many more in the same Queens time and King James and King Charles the First that blessed King and Martyr I say many are the Laws that have been made for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution of it and some of these Laws were enlarged altered and explained But never was there any Law Custom or Act of Parliament that required a several Royal assent to the executing of every particular Canon Many are the reasons which Dr. Cosens gives in the first Chapter of his Apology against that particular Assent wherein he shews his great candor and ingenuity and desire to give abundant satisfaction to all Opponents though never so unreasonable that were it not as clear as the Noon-tide light that no such particular assent is needful some might think that he fear'd his cause and be ready to say that Desensio nimis operosa reatum quasi arguit But touching the validity of the Ecclesiastical Laws there needs I conceive no more be said then what is expressed in that Act of Parliament 25 H. 8.19 the Ecclesiastical Laws that were in use and practice before that Statute are thereby established thus Provided that such Canons Constitutions Ordinances and Synods Provincial being already made which be not contrariant nor repugnant to the Laws Statutes and Customs of this Realm nor to the damage or hurt of the Kings Prerogative Royal shall now still be used and execrated as they were before the making of this Act untill such time as they be viewed c. by the 32. persons mentioned in that Act which is not yet done The Ecclesiastical Laws which have been made since that Act and all that ever hereafter shall be made so long as tht Statute stands in force the requisites in that Act being observ'd are thereby I conceive confirmed or to be confirmed The Submission and Petition of the Clergy mentioned in that Act is That they would not enact or put in ure any new Canons c. in their Convocation without the Kings Royal assent and authority in that behalf There it is said That the Convocation in the time coming shall alwayes be assembled by authority of the King Writ and that the Clergy must have the Kings most royal assent and licence to make promulge and execute such Canons Constitutions and Ordinances Provincial and Synodal else they may not enact promulge or constitute any such Canons c. And this course hath ever since been observed Every Convocation called by His Majesties Writ and the Clergy had especial license from His Majesty to enact such Canons c. and to execute them The Provision following being observed which is this Provided that no Canons Constuurions or Ordinances shall be made or put in execution in this Realm by authority of the Convocation of the Clergy which shall be contrariant or repugnant to the Prerogative Royal or the Customs Laws or Statutes of this Realm any thing contained in that Act to the contrary thereof notwithstanding If any be put in execution contrary to this Proviso and contrary to any after-Acts of Parliament whereby His Majesty hath further power acknowledged in causes Ecclesiastical then 't is illegal but that is much sooner alledged than proved The particular Ecclesiastical Laws in force have by Dr. Cosens and others been sufficiently demonstrated I humbly conceive In case any Jurisdiction Ecclesiastical or Civil within this Realm be not derived or claimed from the Crown as to the execution of it at least then the former objection were of force but another Act of Parliament 8 Eliz. c. 1. shews the contrary sufficiently where all Ecclesiastical Jurisdiction is acknowledged United to the Crown as there fully and that very clause 1 Eliz. 1. together with His Majesties Letters Patents directed forth for confirming Archbishops and Bishops is brought in the preamble thereof as a strong proof without scruple or ambiguity that the authority and jurisdiction by the Clergy executed is thereby given them from Her Majesty This also were there nothing else were sufficient to entitle them the Kings Majesties Ecclesiastical Laws as well as other Laws are called the Kings Majesties Laws But they are up and down in the Acts of Parliament called the Kings and the Queens Ecclesiastical Laws 1 Eliz. c. 2. 5 Eliz. c. 25. 25 H. 8.27 c. and even by the Note gatherer that great oppugner against whom the Doctor writeth they are called the Ecclesiastical Laws of England And in this late Act above mentioned they are called the Kings Majesties Ecclesiastical Laws Yet for executing of these Laws by the Ecclesiastical Judges what out-cries were made against them especially in the beginning of the late Long Panliament by His late Majesty of blessed memory called the Black Parliament Summa imis miscendo and what favours were then afforded to those Boutefeu's as we have since had sad experience of them God grant we may be cafeful of them for the future I am unwilling to recite Ecclesiastical Judges are not onely tyed by their offices and * Canon 117. Canon Constitut 1604. Oaths but at least in some particulars for which they have though most unjustly been much clamour'd against are most severely by Act of Parliament charged to see the execution of if not of others too yet of one especial Ecclesiastical Law for their care wherein some of them have been well-nigh ruined that is that according to that Act of Parliament 1 Eliz. c. 2. For uniformity of Prayer and Administration of Sacraments every person should diligently and faithfully resort to their Parish Church or Chappel where Common prayer and such Services of God shall be used upon every Sunday and other dayes ordeined and used to be kept as Holy-dayes and then and there to abide orderly and soberly during the time of Common prayer Preaching or other Service of God to be used and ministred c. Then follows thus And for due execution hereof the Queens most excellent Majesty the Lords Temporal and all the Commons in this present Parliament assembled doth in Gods name earnestly require and charge all the Archbishops Bishops and other Ordinaries that they shall endeavour themselves to the utmost of their knowledge that the due and true execution hereof may be had throughout their Dioceses and charges as they will answer before God for such evils and
not upon just fears frighted out of the House and it being scarce safe for the King to deny them any thing in that dangerous condition he was then in As also that such Concessions or Acts as then contrary to the Kings free will were wrested from the King were not to be accounted legal or good or valid whereof several instances may be given heretofore of such and amongst the rest one 15 E. 3. the King then yielded to and granted certain Articles pretended at least to have the form of an Act or Statute of Parliament expresly contrary to the Laws of the Realm and his own Prerogative to which he had assented to eschew the dangers which by denying the same were like to follow in the same Parliament it was repealed in these very words following It seemed good to the said Earls Barons and other wise men that since the Statute did not proceed of our good will the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void c. And perhaps it deserves to be thought of how far in this case that Act of 42 E. 3. c. 1. reaches where it is set down that the great Charter should be kept in all points and if any Statute be made to the contrary it shall be holden for none And one especial Law in that Charter is for the preservation of the rights and liberties of the Church whereof this of the Lords Spiritual their liberty of sitting and voting in the Lords House is a known special liberty and privilege and most ancient If we look back to the Long Parliament Proceedings of the House of Commons was it not fit that that House of Commons should have been justly regulated to act no further or otherwise then according to their just power and the Commission and Summons by which they were called which Commission or Writ of Summons is the foundation of all power in Parliaments as it is well expressed by the Lords and Commons assembled at Oxford Declaration of the Treaty p. 15. What fearful exorbitances have been that way the more sad it is to remember the more care ought to be taken to prevent it for the future The House of Commons in former times being desired by the Lords House to consult with them de arduis regni negotiis to which the Lords are called and the House of Commons remembring their call and commission ad consentiendū hiis quae tunc ibidem c. as in their Writ of Summons humbly referred it back to the Lords as matters too high for them And it may seem against the honour and gravity of Parliaments or either House as also to the grievance of the Subject for both or either House or the Committees of either of them as in the Long Parliament to trouble themselves with matters of very small or inferiour nature much below them and in cases where the Law hath sufficiently provided remedy and is still in force to be executed by the proper Judges Were it in making new Laws thereabouts that ought to be so but I mean in making orders about the execution of such Laws which properly belong to the ordinary Judges thereof and are usually executed by them especially touching inferiour matters it look'd then in that Long Parliament as though they would have swallowed up all other courts and made a kind of Justitium in them during the time of their Session such as medling with the appointing of Churchwardens and such like petty matters The late Long Parliament deviated much especially the pretended House of Commons then to omit as being too notoriously deplorable the Iliads of miseries this poor Nation hath thereby undergone besides that horrid one of the murther of our late King of ever blessed memory King Charles the first acted by a pretended House of Commons Was not that then too frequently practised worthy then of reformation that is the judiciary power being in the Lords House and the Commons House having power onely over their own Members in some cases and not having power so much as to give an Oath yet how often did they then upon small matters unworthy of their cognisance in regard they might have been so easily remedied by the known ordinary Laws of the Band and the ordinary competent Judges thereof call orthodox conformable and worthy Ministers to appear before them from very distant remote places sometimes near upon 200. miles for setting a rail about the Communion Table according to the command of the Ordinary or matters of such inferiour nature these brought on and fomented by Inconformists then to the great mischief to this Nation too too much favoured promoted and prosecuted by the then prevailing power The Fees and charges were then very high insomuch as some Ministers were almost if not altogether undone before they could get up thither and when they came by reason of multiplicity of businesse in the Commons House they staid there long and upon great charge paying high Fees still to the Serjeant or other Officers of the House whilest they lay under restraint which oftentimes was very long When a charge after long delay was given in then they gave their answer after a long stay too Then a Committee of many Members was appointed to examine witnesses which was done without oath then after a long time the cause was reported many of these Members not having heard the whole cause but some one part some another yet often concurring at the voting and reporting the cause to the house of Commons which was a strange kind of proceeding to call it no worse In the Star-chamber and High-commission none used to give sentence but such as heard all the cause and they usually excused themselves when they had not heard all the cause Now when the House of Commods had proceeded thus far upon the matter yet they had done little or nothing but vexed and undone a poor and perhaps guiltless Minister for they were to transmit the cause to the Lords House and there to begin it de novo examine the witnesses again upon oath which as before the other House could not do And here 't is to be considered whether or no it were not anceps perjurium a dangerous temptation to witnesses that perhaps have spoken too largely being unsworn will if but for fear of loss of Reputation confirm upon Oath what they have said without Oath It is to be feared also some poor men foreseeing this unevitable course of undoing them have either wronged their owne cause and betrayed their innocence by confessing themselves guilty or ad redimendam vexationem compounded with their prosecutors even to their own undoing or well nigh If there had been cause and that it could not properly in an ordinary way have been remedied by the proper competent ordinary Judges why should not the cause have been begun heard and determined in the
been writ about that ridiculous contradiction in adjecto of the two Houses coordination with the King the Monarch when as before is specified the King is the Head the Lords Spiritual and Temporal and the Commons the three Estates by several Acts of Parliament specified Lippis tonsoribus notum yet urged for designs mischievous abominably as we have felt As also that trayterous distinction of the Spensers Spensers Treason 'twixt the Kings Person and Office by two Acts of Parliament declared Treason yet in these late times maintained by too many Goodwins book for the justification of the murther of the late King and many other of that kind Goodwins book justifying the murther of the King Mr. Bucks book of Richard the third wherein he seems to impugne the right of the King from the daughter of King Edward the fourth wife to King Henry the seventh Mr. Bucks book of Richard 3. too much leaning to if not affirming Richard the thirds right by that monstrous Act of Parliament that illegitimates Edward the fourths issue In Sir Edward Cooks book entituled The third part of the Institutes of the Law of England Sir Edw. cooks Writings concerning High Treason and other Pleas of the Crown 1658. Printed at London by M. Flesher for W. Lee and D. Pakeman § Le Roy pag. 7. he puts it down there for Law upon the Statute of 25 E. 3. c. 2. De proditionibus That if Treason be committed against a King de facto and non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon granted by a King de jure that is not also de facto is void Strange would have been the consequence of this if Cromwell had been made King as some desired and a loyal man should have killed him in order to the restitution of the true King de jure our dread Soveraign King Charles the second Or should a loyal man for the same end have killed him though he had but de facto non de jure the title of Protector how far would that have extended by the words in the same § may be considered where he sayes that Statute of E. 3. is to be understood of a King regnant and as follows there and as he sayes most truly a Queen regnant is within these words Nostre Seigneur le Roy for she hath the Office of a King So perhaps it deserves to be examined whether some of note and power in the time of Cromwells Usurpation did not affirm that Cromwell was within these words Nostre Seigneur le Roy. In regard Sir Edward Cooks Writings are by many held in high repute and some have not stuck to style him the Oracle of the Law therefore his Writings require to be more strictly looked into and that if any errors be found therein they may be detected and expunged as being more dangerous then in other mens Writings not of so great repute Corruptio optimi est pessima Also it was advised Illegal and seditious speeches if it shall be thought fit that such Speeches as have been publickly made by any Judges or noted Lawyers upon the Bench or in any publick Assemblies against the Regal or Subjects Right or the Law of Nations which may give just offence to our Neighbours may be taken notice of and publickly declared against Such us that when that Act of 25 E. 3. was alledged to justifie Cromwells Usurpation and that Seigneur le Roy in that Statute included Cromwell the usurping Protector And that speech of a great Lawyer at the tryal of the Portugal Ambassadors brother when it was alledged that he was by the Law of Nations to be sent back cum postulatu to his Master the King of Portugal to be by him punished for his offence committed here and that that Commission for trying him here without the consent of the Portugal Ambassador was the first Commission that ever was granted here to try any Ambassador or his servant without the Ambassadors consent Even the Bishop of Ross Ambassador from Mary Queen of Scotland though she was de facto deposed or forced to renounce the Crown there when he had committed a great offence yet was onely dismiss'd and not further questioned But to all this and much more that Lawyer replied What have we to do with the Law of Nations if it be contrary to the Law of England One pretended afterwards to excuse him and that he spoke but according to the words in the Statute of 21 H. 8.21 where it is said We are free from any subjection to any mans Laws but onely to such as have been devised made and ordeined within this Realm for the wealth of the same c. which words are intended against the Papal Usurpation imposing Laws upon us As also if it be thought fitting The illegal Preface to the Propositions at the Isle of Wight that that Preface to the Propositions sent by the House to the late King at the Isle of Wight which seem to strike at if not to take away the Kings Negative voice in Parliament expresly contrary to many Acts of Parliament the Kings most known Prerogative and the most known Custom and Law of the Land be declared illegal and derogatory to His Majesties Prerogative and just right As also if it shall be thought fitting Rectifying of translation of some words that the translation of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Rom. 13.1 to higher powers altered to the supreme powers for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Pet. 2.13 is translated whether to the King as supreme The two Houses and Powers inferior many degrees to them have by some been interpreted to be meant by higher powers and strangely hath it been wrested if not exclusive of the King As also if it shall be thought fitting that that expression about the time of His Majesties coming over Illegal Declaration in one of the Declarations or Remonstrances that the Government was by the King Lords and Commons being derogatory to His Majesties Prerogative and Legislative power and the Government being in him radically and but derivatively and subordinately in any others for and under him Therefore to be considered of altered and amended As also The Printing-press if it shall be thought fit that the Presse be carefully looked into that no seditious Books or Pamphlets be vented to poyson the people or to confirm any in their bad principles The want of this care hath grown into a great Seminary of mischief which if nothing but our sad experience of it should make us more wary for the future As also A body of the Law to be framed if it shall be thought fit that according as was begun by the late Lord Chancellor the Lord Viscount St. Albanes which as 't is said King James put him upon a Body of the Laws should be digested and compiled
His Majesties Prerogative or the known Laws of the Land Ecclesiastical or Temporal or the politick Government either in Church or State or which may give just offence I do hereby absolutely retract it as no wayes by me intended or thought of wishing this small taste may stir up others more able to make a further and better progress in this kind Anno 13. CAROLI II. Regis An Act for explanation of a Clause contained in an Act of Parliament made in the seventeenth year of the late King Charles entituled An Act for repeal of a branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical WHereas in an Act of Parliantent made in the seventeenth year of the late King Charles entituled An Act for repeal of a branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical it is amongst other things enacted That no Archbishop Bishop nor Micar General nor any Chancellor nor Commissary of any Archbishop Bishop or Micar General nor any Droinary whatsoever nor any other Spiritual or Ecclessastical Judge Dificer or Minister of Justice nor any other person or persons whatsoever exercising Spiritual or Ecclessastical Power Authority or Jurisdiction by any Grant License or Commission of the Kings Majesty his Meirs or Successors or by any Power or Authority derived from the King his Deirs or Successors or otherwise shall from and after the first day of August which then shall be in the year of our Lord Bod One thousand six hundred forty one award impose or inflict any Pain Penalty Fine Amercement Imprisonment or other corporal punishment upon any of the Kings Subjects for any Contempt Misdemeanour Crime Offence matter or thing whatsoever belonging to Spiritual or Ecclestastical Cognilance or Jucisdiction whereupon some doubt hath been made that all ordinary Power of Coertion and Proceedings in Causes Ecclessastical were taken away whereby the ordinary course of Justice in Causes Ecclessastical hath been obstructed Be it therefore declared and Enacted by the King most excellent Majesty by and with the advice and consent of the Lords and Commons in this present Parliament assembled and by the Authority thereof That neither the said Act nor any thing therein contained both or shall take away and ordinary Power or Authority from any of the said Archbishops Bishops of any other person of persons named as aforesaid but that they and every of them evercisting Ecclesiastical Jurisdiction may proceed determine sentence erecute and erecise all manner of Ecclesiastical Jurisdiction and all Censures and Coertions appertaining and belonging to the same before the making of the Act before recited in all causes and matters belonging to Ecclesiastical Jurisdiction according to the Kings Magesties Ecclesiastical Laws used and practised in this Realm in as ample manner and form as they did and might lawfully have none before the making of the said Act. And be it further enacted by the Authority aforesaid that the afore recited Act of decimo septimo Caroli and all the matters and clauses therein contained ercepting what concerns the High Commission Court or the new erection of some such like Court by Commission shall be and is hereby repealed to all intents and parposes whatsoever Any thing clause or sentence in the said Act contained to the contrary notwithstanding Provided alwayes and it is hereby enacted That neither this Act not any thing herein contained shall ertend or he construed to revive or give force to the said branch of the said Statute mave in the said first year of the Reign of the said late Queen Elizabeth mentioned in the said Act of Parliament made in the said seventeenth year of the Reign of the said King Charles but that the said branch of the said Statute made in the said first year of the Reign of the said Queen Elizabeth shall stand and be repealed in such sort as if this Act had never been made Provided also and it is hereby further enacted that it shall not be lawful for any Archbishop Bishop Hicar General Chancellor Commissary or any other Spiritual or Ecclesiastical Judge Officer or Minister or any other person having or erercising Spiritual or Ecclesiastical Jurisdiction to tenver or administer anto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tenvered or administred may be charged or compelled to confesse or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment any thing in this Statute or any other Law Custom or Mage heretofore to the contrary hereof in any wise not withstanding Provided alwayes that this Act or any thing therein contained shall not extend or be construed to extend to give unto any Archbishop Bishop or any other Spiritual or Ecclesiastical Judge Officer or other person or persons aforesaid any power or authority to exercise execute inflict or determine any Ecclesiastical Jurisdiction Censure or Coertion which they might not by Law have done before the year of our Lord One thousand six hundred thirty and nine nor to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs nor to confirm the Canons made in the year One thousand six hundred and forty nor any of them nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enarted by Parliament or by the established Laws of the Land as they stood in the year of the Lord One thousand six hundred thirty and nine The Contents of the Chapters Chap. I. THe endeavours of the Innovators to change the course of Ecclesiastical proceedings That stupendious Fanatick Hackett his fearful end Mr. Cambdens judgment touching the Innovators Their perseverance in their design of Innovation in King James his time and afterwards The pretended taking away the Coercive power from the Ecclesiastical Courts how gained what use was made of it by the Innovators and how they boasted of their benefit by it Two passages in the Long Parliament touching two Inconformists Page 1. Chap. II. The two Proviso's in the late Act that takes away the doubt touching Coercive power in Ecclesiastical Courts Dr. Cosens Apologie for sundry proceedings by Jurisdiction Ecclesiastical That groundless Opinion That a several Royal assent to the executing of every particular Canon in required is confuted The validity of the Ecclesiastical Laws The clamours of Inconformists Innovators and Fanaticks against the putting of Ecclesiastical Laws in execution though the Ecclesiastical Officers and Ministers are by Act of Parliament severely commanded to do it p. 10. Chap. III. The Heads of the several Chapters in that Apologie of Doctor Cosens Part 1. p. 27. Chap. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A summary relation of what Dr. Cosens in his Apologie hath asserted and made good by Gods Word the practice of the Primitive Christians the opinion of the Father the
question was made whether she had sworn truly or no for proof whereof she was to drink the Bitter waters which would be the confirmers of the Oath if true and the revengers if false Num. 5.24 Against another When the Law had provided that out of the mouth of two or three witnesses who being sworn had given testimony against a man the matter should be established Deut. 19.15 Lest any man should take humane testimonies for Divine Oracles in the next Verse 't is commanded that the suspected witnesse must stand before the Lord the Priests and it must be enquired into whether he hath carried himself sincerely and truly in the testimony he hath given but if he be convicted of falsity then shall he be punished as he should have been whom he complained of But I shall transgress upon the time and upon the Church too the Clock having a while ago called us off if I should further follow these trifles which whoever list my bray with arguments they of their own accord so overflow therefore I restore you to your selves and conclude Isa 28.17 If as the Prophet saith this Judgment which we use be laid to the Line and Righteousnesse to the Plummet of Gods Word there shall be in those things no sin For the Magistrate to require and that from the party guilty or defendant especially if the cause be not capital or a cause of Bloud an Oath and that he may do it so far whether it be that the controversie may thereby be set upon its foundation whilest the state of the cause is sought for or that the truth of the proofs may be made evident whilest the question is handled Nor does the ends of the Oath or the order or the examination offend against Divinity and therefore cannot be declined They that decline it first they do it out of ignorance of Gods Law then the example is dangerous that one may thus for his pleasure enquire into publick judgments without judgment if we may call into question the rest of the affairs of the Kingdom and the moments of the Commonwealth lastly the Law it self if it make not for us That God Almighty may avert this from us to whom turning our selves let us pray that he will give us grace to be modestly wise and sober in all things to see in our minds how irreligious it is how unchristian to decline the judgments of our Nation but rather with all our endeavour with all the strength and force of our Wit to maintain them which maintain the Commonwealth and us all for next after God and his service most true is that saying of Elihu Judgment and Justice maintain all things Job 36.17 Upon the consideration most especially of what hath been written by Dr. Cosens in that Apology touching the Oath Ex officio and Purgation and what is said in that short Manuscript and in the Lord Bishop Andrews Determination thereupon and of the inconveniences and hurt that probably may be feared to ensue upon the prohibiting that Oath and Purgation together with the practice still at Common Law in the like cases and the rest that is here set forth as it is hoped that Act may be thought fit to be revised and re-examined and perhaps altered so with the like humility all that is said or shall be said in this Treatise is most submisly tendered to His Sacred Majesty the Lords Spiritual and Temporal and the Commons in this happy Parliament now assembled to be weighed by them if so to their Wisdoms it shall be thought fit otherwise to be as unsaid and retracted as is every thing there if it be dissonant to Gods Word His Majesties Prerogative the Laws of Church or State or the known Laws of the Land or the just policy and government in Church or State or against Christian charity or brotherly love Should any man object That some Civilians desired that this Act whereby the Oath Ex officio and Purgation is forbidden should passe at the end of the recess of Parliament the latter end of this last Summer 1661. when many other Acts of great concernment were in agitation and some then passed and some stayed supposed that they will be resumed and considered of at the next meeting of Parliament that I say this Act should not stay as some would have had it till that next meeting but rather pass now though with these Proviso's on it I can say no more then this that Certa incertis praeferenda if they could not have all they would have yet to have something that in a manner wanted all was but reasonable prudence it had perhaps savoured of morosity to have done otherwise especially considering that those that have long fasted would be glad to eat though I hope these that administred this food to them did not fear they would as hungry men use to do feed too fast to their hurt not to their nourishment and therefore did set the less meat before them but upon a pause after this refreshment there may be a supply Neither need I humbly conceive any thing that is already done hinder the review or alteration of this Act in that point For it is no new thing nor discommendable but contrary to make Laws upon present reasons or emergencies and yet upon future accidents or contingencies and variation of the times and occasions and other necessary requisites which could not well be foreseen at the making of these Laws nor perhaps dreamt on till they happened to alter change or repeal the former Hereof many instances might be given but so plain a case I shall mention but one and that in a matter of Ecclesiastical cognisance touching Precontracts of Matrimony in 32 H. 8. c. 38. 32 H. 8. cap. 38. What Marriages are lawful and what not WHereas heretofore the usurped power of the Bishop of Rome hath alwayes entangled and troubled the méer jurisdiction and regall power of this Realm of England and also unquieted much the subjects of the same by his usurped power in them as by making that unlawfull which by Gods word is lawfull both in marriages and other things as hereafter shall appear more at length and till now of late in our Soveraign Lords time which is otherwise by learning taught then his predecessors in times past long time have been hath so continued the same whereof yet some sparks be left which hereafter might kindle a greater fire and so remaining his power not to seem utterly extinct Therefore it is thought most convenient to the Kings Highness his Lords spirituall and temporal with the Commons of this Realm assembled in this present Parliament that two things specially for this time be with diligence provided for whereby many inconveniences have ensued and many moe else mought ensue and follow as where heretofore divers and many persons after long continuance together in Matrimony without any allegation of either of the parties or any other at their marriage why the same matrimony should
Parliaments accounting what has been once done there quo jure qua injuria right and good and to be deduced into practice even those strange irregular acts in the tumultuous times of Richard the second and Henry the fourth nay we have seen how Spensers Treason distinguishing the person and office of the King so declared to be Treason by Act of Parliament many ages since even urged for right to instance no more Some have advised that such precedents acts and proceedings should have been examined and by publick Declaration by Act of Parliament purged or abolished or declared illegal And that Acts of Oblivion c. if but for that reason of preventing that male construction of citing ill precedents for Law that an inspection should have been made into the Acts of Amnesty and Oblivion passed in the first years of the Long Parliament and also that passed this last Parliament We have seen especially if we looked Northward how soon after such Acts of Indempnity and Amnesty the Delinquents as though they thought themselves justified in their former crimes fell again into the same And that there should in those past and due care be had for the same in the future have been a specification made of the crimes and offences intended there to have been pardoned and put into oblivion lest otherwise implicitely and insensibly they might have been taken not to be crimes and Loyalty and Fidelity tacitly at least accounted crimes and so creep into precedent and example for the future And that the first Paragraphs in the late Act of Pardon Indempnity and Oblivion might if thought fit be considered of where in the first place are pardoned All and all manner of Treasons Misprisions of Treason Murthers Felonies and Offences crimes c. counselled commanded acted or done since the first day of January 1637. by any persons before the 24 day of June 1660 c. by vertue or colour of any command power authority commission warrant or instructions from His late Majesty King Charles or His Majesty that now is Though there might be some obliquity error or abuse in the execution of Commissions from their Majesties yet some stumble at these expressions of Treasons Murther c. to be committed by Commission from the King as without all question was committed by Commissions granted by others and yet here they look like equal and eaven crimes which no loyal man can own It neither hurts nor hinders the pardon but rather more strengthens it that the crimes pardoned are specified and let the application be made onely to them that are guilty of them not to the guiltlesse and such as deserve honour and reward for that which some would at least imply to be criminal much lesse no ignominy or reproach Surely the Loyal party that acted according to the known Laws for so acting needed not His Majesties pardon Facinus quos inquinat aequat Some men cannot think themselves cleared except they can taint others guiltlesse with the imputation at least of these crimes whereof they themselves onely are culpable and it is a question whether their true meaning be not that they would have an Exculpation a term we have more lately had from the North and even a justification from their known crimes at least to be accounted no greater crimes then the actions of those that acted by the Kings authority according to the known Laws of the Land which they well know are no crimes but the contrary It is obvious to every eye how some have sweat to have justified all the illegal Acts of the Long Parliament Some make little or nothing of the endeavours that then were to have killed the late King in Battel but onely of putting him to death in cold bloud And that Restitution of some goods where the property is not altered if thought fit that such goods whereof the property is not altered as Houshold-stuff Plate Furniture of beds Pictures Hangings eminent Jewels or such like plundered or taken away wrongfully either by pretended Sequestrations spoil or otherwise should be restored to the owners or in some cases a just value repaid for them with a just consideration to be had of the parties from whom they were taken and of their actings and not to remain as they do in the view of the owners perhaps purposely in despight exposed to such publick view This works contrary to His majesties pious intention and that Act of Oblivion it continues does not abolish the memory of our former divisions when the spoiled shall see as a continual Eye-sore their proper goods in the possession of the spoiler whilest the spoiled for want of them perhaps is ready to starve and perhaps the spoiler makes his livelyhood out of them if not steps of preferment too The Heathen Poet could say of the Civil wars of Rome Bella geri placuit nullos habitura triumphos But surely this looks like a continued triumph after the Warre Some have wished that that motion in the last Parliament Reparation to persons spoyled or Assembly or Convention that ended in December 1660. made in the Lords House might be renewed that the spoyed party might at least in some good measure be repaired by some publick Tax made for that purpose and due consideration to be had of such suffering spoyled persons that constant never-changing Loyalty may have some encouragement and comfort besides that of a good conscience Some have wished that it might have been by Act of Parliament declared Touching the Long Parliament if thought fit that the Long Parliament notwithstanding that Act for the continuing of it till it should be dissolved by Act of Parliament was dissolved or declared void and null from such a day as should have been by advice of the Judges and learned in the Laws agreed upon And that also if thought fit consideration should have been had particularly from what time that dissolution annulling or making void should have commenced whether from the time that His late Majesty was driven from the Parliament by tumults and riots which as is known some if not many Members especially of the then Commons House in that Long Parliament that took up Arms against the King were so far from causing to be suppressed though His Majesty desired it that they were set on by them as is notorious And also if thought fit that if not from that time yet from the time they voted to live and dye with the Earl of Essex by them voted to be their General against the King and upon the matter causing those Members to leave the House that would not vote with them And whether that His Majesty calling them afterwards a Parliament as they alledged when they were in Arms against him though perhaps His Protestation to the contrary was entred in the Council-book could any wayes entitle them to a lawful Parliament And also if thought fitting that it should have been by Act of Parliament declared that any Member of Parliament offending
against 25 E. 3. in raising or bearing Arms or maintaining them against the King ipso facto ceases to be a Member of Parliament for that a Rebel and a Parliament-man are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And also if thought fit that the Judges of the Land consulting together should have declared as they did in King James his time in that case about Watson and Clerk the Seminary Priests that the Kings Coronation was but a Ceremony and that without it the King was a complete King that that Long Parliament was dissolved from such a day as they should have found by Law that it was dissolved or annulled whether it was from the time of His late Majesties expulsion from his Parliament as before or from the time of voting to live and dye with the Earl of Essex or of their Votes of no further addresses to the King who called them to consult with him whether they did not then openly dissolve themselves by refusing to consult with him or from his death when they could consult no more with him And also if thought fit that it should have been so declared and enacted that though the King had passed an Act that the Parliament should sit till they were dissolved by an Act of Parliament and that if it had been expressed that it should be so notwithstanding that His Majesty should dye in the interim yet such an Act could not bind him nor his Successor especially when in that Act for continuing that Parliament till by such Act it should be dissolved there is no such mention that it should continue after his death that called it and that the King cannot be concerned at leastwise concluded any wayes in any Act of Parliament to his damage prejudice or diminution of his royal Prerogative or Authority except at least he explicitely and freely consent to it be specially comprized and named in that Act to that purpose or whether he can though he so consent it following plainly that if by taking up Arms or bearing Arms against the King a Parliament-man ceases to be so nor can sit any longer in the House Then in that case none ought truly to be accounted secluded or excluded Members but onely these that would uot then vote to live and dye with the Earl of Essex nor would assent to the raising of arms against the King but thereupon left the House or were expelled thence either by the Votes of the rest or by menaces just fear that might incidere in constantem virum or by tumultuous force so that if the Parliament if not by the reasons aforesaid yet at least by the death of the King being dissolved as to think the contrary is most void of reason or truth if I say it had not been so dissolved then those secluded or excluded Members they onely ought to have been restored and none of the rest that acted against the King by taking up Arms against him or acting against him ought to have been restored Such offended against the Act of 25 E. 3. raising Arms against the King c. counterfeiting or making a new Great Seal c. and their being Members of Parliament being as before inconsistent and for the void places His Majesty to issue out Writs for free legal and new Elections And also that the keeping of the Records in the Tower The keeping of the Records in the Tower should be in the hands of a known trusty Loyalist and none other in regard of the danger of imbezelling or corrupting them by any person of other principles not affected to Monarchical government by Law established to the great damage of the King and his Subjects And also that the Militia The Militia and all Offices and places of trust and concernment for the peace and safety of the Kingdoms and for the prevention of future Faction Sedition and disturbance of such peace and endangering such safety should be committed onely to the hands and especially for a competent space of time as by such free and legal Parliament or by His Majesty shall be agreed upon of known experienc'd Loyalists and not to any that may be reasonably presumed or suspected to be otherwise That rule may somtimes hold and not be rejected Qui semel est malus semper praesumitur esse malus presertim in eodem genere delicti And also if thought fit Oaths of Allegeance and Supremacy explained that the Oaths of Allegeance and Supremacy should have had some explanation alteration or emendation especially in that point of not resisting the King In the second Homily of Obedience which book is confirmed by Act of Parliament it is there expressed in terminis as the Doctrine of the church of Engl. that it is not lawful in any case to resist the King That this should expresly have been put into these Oaths and that all persons whatsoever which are to take the Oaths of Allegeance or Supremacy or that have taken them may take them with such emendations it being too notorious what strange interpretations have been made of these Oaths as that they were made onely against the Papal power and as though nothing else were to be resisted And in the beginning of the Rebellion in Scotland the orthodox Divines of Aberdeen maintaining according to that Doctrine of the Church of England That in no case the King is to be resisted and that so to do was contrary to Gods Words and to the opinion and practice of the primitive Christians The other Divines fomentors of that Rebellion expresly denied this and alledged that the reason why the primitive Christians resisted not was because deerant illis vires the very same reason that Bellarmine gives for he same so well do these two Factions concur Though by the History of those times it appears and Tertullian openly pleads it against the Emperor that it was not for want of strength for they had enough but that it was contrary to their conscience guided by Gods Word so to resist And therefore why not much need that all persons whatsoever should take this Oath to declare their opinion in this point And also Robbery the law to be â—â—tered if thought fit that the Law concerning Robbery ought to be in many cases and especially for the first offence mitigated and not made capital but that restitution be made to the party robbed and if the Robber be not able to do it then to be forced to work it out Which course some think would probably more terrifie idle persons that turn thieves who had rather dye desperately then lead perhaps a long and wearisom life Hereby many may repent and amend and do good service to their King and Countrey The party robbed also hereby gets restitution which seldom or never happens as the Law now is Our Law contrary to the practice in other parts of the Christian world hereby becomes harder then the Levitical Laws Some have hereupon said that the Gospel the Spirit killeth and the Letter giveth
and then by authority of Parliament be ratified Further touching Ecclesiastical matters The Ecclesiastical Courts proceeding according to His Majesties Ecclesiastical Laws Ecclesiastical Courts to be Courts of Record sitting under the same Crown with all other Laws some advise if it shall be thought fit that to all intents and purposes of Law they should be Courts or Record as well as any other Courts By the Statute 31 Eliz. c. 12. Reading the Articles of Religion the Incumbent is to read the Articles of Religion within two moneths after his Induction and 't is said some have not taken Induction at all because they would not read the Articles Had the Statute limited it within that time after Institution it had met with that fallacy In the form for Private Baptism Signing with the Cross in Baptism when the child privately baptised is afterwards brought to the Church to have the Baptism published at the receiving the child then into the Congregation there is no Interrogatory whether in the private Baptisme it had been signed with the sign of the Crosse as commonly if not altogether they are not neither is there any mention then at the publishing of the Baptisme of so signing it And it hath been found that some persons have pretended weaknesse in the Infant when it was no so onely to avoid the signing of it with the Crosse There being no Law that allowes private Churching of women Churching of women privately it is wished it might be alwayes publick in the Church and with a Vail and if within the moneth the woman be not able to come to Church to defer it till the recovery of her health In Cathedral and Collegiate Churches usually one of the Singing-men though in orders gives the Absolution Touching Absolution and the Blessing at the end of Service which some wish might be done by the Bishop of present or Dean or some dignitary or more eminent person present And that the Anthems and other parts of the Service which are performed singing or in a singing tone may be made more intelligible to all the Auditors who many of them are scandalized by the contrary which might be helped by some small alteration in the composure so that as sometimes was practised and that without any hinderance to the harmony first one of the Singing-men to declare out of what Chapter and Verses or part of the Scripture that Anthem is taken or what Hymn or Spiritual Song it is and then immediately before the singing each Verse with a clear audible voice to read it This would help much but the best way were that the Singing-men and Choristers were taught exactly to sing most articulately clearly and plainly and not to drown the words in their mouths that they cannot be understood but openly and distinctly found forth every syllable that they might be as well or better understood then when they onely read them And this hath been most commendably done by some expert Artists that way and might by all Mr. John Frost late _____ Westminster and one of the Gentlemen of His Majesties Chappel Royal gave a most clear and most deservedly worthy to be imitated precedent hereof then whom never any man read more plain and clear and yet what he sung was if possible more plain and clear then what he read By the Statute for the tryal De Excommunicato capiendo Touching the Writ De excommunicate capiendo the person excommunicate is to be published in his Parish Church which sometimes the Minister refuses or there is no Minister In which case 't is wished it might serve to have it fixed upon the Church dore upon the Lords day or a copy left at his dwelling house and the forty dayes to commence from that time FINIS A Table of the Particulars contained in the Notes touching alteration of some Laws TOuching Parliament proceedings Page 97 Ordinance of Parliament ibid. Privilege of Parliament ibid. The Bishops Protestation Page 98 The King none of the three Estates ibid. Proceedings of the House of Commone Page 99 Age of Parliament-men Page 102 Election of Parliament-men Page 103 The great number of Boroughs and Corporations ibid. Touching the manner of proceeding in Parliament Page 104 A competent number of Parliament-men to be at every debate Page 107 The manner how it may be constantly observed ibid. Fees of the Officers of Parliament Page 108 Touching new Laws ibid. Acts of Oblivion c. Page 109 Restitution of some goods where the property is not altered Page 110 Reparation to persons spoyled Page 111 Touching the Long Parliament ibid. The keeping the Records of the Tower Page 113 The Militia ibid. Oaths of Allegeance and Supremacy explained ibid. Robbery the Law to be altered Page 114 Against condemnation upon a single testimony Page 115 Touching Juries Page 116 New Laws to be made upon new accidents Page 117 Making of Eunuchs ibid. Stealing of Winding-sheets ibid. Stealing of men Page 118 Against delayes in Courts ibid. Fees in all Courts ibid. About examination of witnesses in defence ibid. Against the examination of witnesses in the hearing of one another Page 119 Reparation to persons wrongfully accused Page 120 The Act touching the Court of Wards and Tenures to be repeated Page 120 Rates to be set for buying commodities Page 121 About dignity and precedency ibid. Against the Act for limitation of Actions Page 122 Against multiplicity of Statutes upon the same subject ibid. The Clergies Proctors in the House of Commons Page 123 About augmentation of Vicaridges ibid. Against Mensals Page 124 Touching the bounds of Jurisdictions Page 125 The Ordinaries power about distribution of portions ibid. Against concurrence of Jurisdictions ibid. Wills to be transmitted into the several Counties Page 126 Degrees of Marriage prohibited ibid. About the suppression of seditions books Page 127 Spensers Treason ibid. Goodwins book ibid. Bucks book ibid. Sir Edward Cooks writings Page 128 Illegal and seditions Speeches ibid. The illegal Preface to the Propositions at the Isle of Wight Page 129 Rectifying the Translation of some words ibid. Illegal Declarations Page 130 The Printing-press ibid. A body of the Law to be framed ibid. Ecclesiastical Courts to be Courts of Record ibid. Reading the Articles of Religion ibid. Signing with the Cross in Baptism ibid. Churching of women privately Page 131 Touching Absolution ibid. Touching the Writ De excommunicato capiendo Page 132 FINIS
And therefore Tully said as he is quoted by Carbe c Tractâ—â— de legib lib. 6. dist 〈◊〉 Nos legem bonaurd mala nulla alia ratione nisi naturae normâ dividere possumus We cannot discern a good Law from a bad otherwise then by comparing it with the Law of Nature And therefore he will have it to be justorum injustorumque distinctio ad iâ—â—am antiquissimans rerum omnium principâ—m naturam expressâ— a rule discriminating that which is just from that which is unjust delineated and drawn forth by the old Originall of Nature and sayes it is the highest or chief reason grafted in Nature commanding those things which are to be done and forbidding the contrary And again d Lib. 2. De Inven. Initium juris à natura profectum deinde quaedam in consuetudinem ex utilitate rationâ—â— venerunt postea res à nacura profectas à consuetudine probatas legum metus religio sanxit The beginning of all Law did proceed from Nature it selfe but afterwards there were certain things which were by evidence of Reason found necessary and thereupon brought into common practise and at length the fear and reverence of Laws did settle and enforce what had been so taught by Nature and Custome it selfe had allowed of So that the Act of the Law is but to see that effectually observed and executed which Nature hath ordained and which the common Reason Custome of men doth declare to be just equal and necessary And sometimes the same e Lib. delegâ—â— lib. 1. Tully styles Law the very force of Nature the Vnderstanding and Reason of a wise Man the rule of right and wrong And f Lib. 3. de rep defining Law as it ought to be rather then what generally it is he terms it right reason spread over all people durable everlasting which as fire burns every where alike is not one at Rome and another at Athens one now and another hereafter but being the same and unalterable serves for all times and runs through all people which began not when it was first written but when it first sprung forth from Nature Plato g In Min. de rep delegib will also have it a reasonable rule leading and directing men to their due end for a publick good ordaining penalties for them that transgresse and rewards for them that obey And Isidore who requires other properties in a Law requires this of Reason too for in his h Lib. 3. cap. 3. Etymologies he sayes Lex erit omne quòd ratione constiterit duntaxat quòd religioni congruat quòd disciplinae conveniat quòd saluti proficiat A Law shall be that which may stand with Reason agree with Religion suit with the education and dispositions of the people and be beneficiall to the publick welfare With i Prima fecunâ—ae qu. 97. Ar. 1. Aquinas also Lex humana est quoddam dictamen rationis quo diriguntur humani actus Humane Law is a dictate of Reason by which humane acts are steered And again k Quest 91. Art 4. Lex nihil aliud est quâm quaedam rationis ordinatio ad bonum commune ab eo qui curam communitatis habet promulgata A Law is nothing else but a transferring or applying of Reason to the common good manifested to all the people by him who hath care of the Common-wealth The Civil Law speaks the same thing l Lib. 1. Dig de Legib. Lex est commune praeceptum virerum prudentum consultum A Law is an universall and generally known precept Notitia aequi boni à natura omnibus indita as m Lib. 1. Gothofred explains it ingrafted in Man by Nature and the result of sage and understanding men All n Minsinus Inst de jur Nat. gent. Civ in princ Civilians without any contradiction doe consent and agree that the true Law of a State is but Determinatio juris naturalis a declaring or expounding in such particular cases or accidents as most frequently happen amongst men what the Law of Nature intends by its generall precept or it is a rationall distinguishing upon the Law of Nature making it to be of force in some cases not of force in others with such directions for observing the same and kindes of punishment to the offenders as the wisdome of each state shall judge most rationall and most convenient Not to Steal not to commit Adultery not to Kill Nature it selfe taught in generall but who should be said to Steal who to commit Adultery who to Kill what proof should be sufficient to convict a Man of these crimes who might be the accusers how and in what manner and before what Judges the offenders should be proceeded against what punishments they should suffer and after what time no accusation for them should be heard because the Naturall Law did not teach in particular therefore the Law of every State doth determine them which as it is done in pursuance of the primary precepts of Nature so must it be done too with the soundest judgement and reason having an eye to the matter of the precepts to the nature of the people and to the state of the Common-wealth it selfe And these severall particulars being thus determined and put into a Law they adopt to themselves the name of a National Law o L. 6. Dig. de Just Jur. Jus Civile sayes Vlpian est quod neque in totum à naturali jure vel gentium recedit neque per omnia ei servit Itaque cùm aliquid addimus vel detrahimus juri communi jus proprium id est Civile intelligimus The Law of a people is that which neither doth wholly estrange it self from the Law of Nature or of Nations nor doth strictly follow them in all things neither when therefore we adde or diminish ought from the Vniversal Law we make it thereby a peculiar Law and give it the denomination of a Civill or Municipal Law so that the Roman Law will have no other materiall difference to be between the Law of Nature and the Dictates of Reason and the Law of a State but that what was before common and universall in nation is now by distinguishing it into cases by fitting it with proper circumstances for more ready execution and by moulding it into a form appropriated to peculiar use The Canon Law that enumerates all the essentiall properties of a Law doth exact also that it be honest just and agreeable to Nature p Cap. 2. Dist 4. Erit lex honesta justa possibilis secundum naturam secundum patriae consuetudinem loco temporique conveniens necessaria utilis manifesta quoque ne aliquid per obscuritatem in captionem contineat nullo privato commodo sed pro communi civium utilitate conscriptae A Law shall be honest just possible according to Nature suiting with the customes of the Countrey agreeing both with place and time necessary usefull and also plain lest through
obscurity it may ensnare nor made for private advantage but for the common good of all the people Thus by the judgement of all Ratio est anima legis Lex tunc laudatur quando ratione probatur Nature is the Fountain and Reason doth animate and make the Law and gets it the praise and acceptation This indeed is a lightning and raye of the Divinity Ratio nihil aliud est quam in corpus humanum pars divini spiritus immersae sayes q Epist 66. Seneca It is the stream and dependance of the eternall Law which is God himselfe and his will Quid natura nisi Dâ—us divina ratio toti mundo partibus ejus inserta What is Nature but God and Divine reason inserted into the whole world and immixed in all the parts thereof r Lâ—x nihil aliud est nisi recta à numine Deorum tracta ratio Cicer. Philip. 11. The Law of Moses in his Decalogue is an outward and publick Coppy the Law of the twelve Tables and the Roman Law the morall instructions of Divines and Philosophers the advertisements and counsells of Lawyers the edicts and ordinances of the best Princes are no other but draughts and particular Pourtrayes of it If therefore there be any Law that varieth from this first and originall Mistresse commanding where she forbids or forbidding where she commands or allowes it is a monster falshood and error As for example Adversus periculum naturalis ratio permittit se defendere Itaque si servum tuum latronem insidiantem mihi occidero securus ero sayes Å¿ Lib. 1. Dig. Ad l. Aquil. Gaius Natural Reason gives a man license to defend himself against any danger therefore I am in no danger of the Law if I kill thy Servant that lyes in wait to mischief me Again Si quis percussorem ad se venientem gladio repulerit non ut homicida tenetur quiâ— defensor propriae salutis in nullo peccásse videtur sayes Gordian the t Lib. 2. Co. Ad l. Cornel. de Sicar Emperor If a Man shall strike him dead that comes to destroy him he shall not be punished as a Man-slayer because the preserver of his own life offends in nothing That Law then surely is very unnatural that inflicts forfeiture of any part of his estate though it requires not either the whole or his life upon any person for slaying another in his own just and necessary defence when as if he had not done as he did he must have been in perill of losing his own life It is as prodigious to naturall equity and good reason that a man that is unhappily peradventure doing of a lawful act nor purposing the least mischief to any person but by meer chance author of anothers death should be subject to any punishment or losse whatsoever Mera infortunia nec paenam mereutur nec ad restitutionem damni obligant sayes u De Ju Bell. Lib. 3. cap. 11. sect 4. Grotius No man deserves to be punished or is bound to make any reparation for pure casualties If an arrow being shot at a Beast or at Buts lights upon a Man and kills him or a stone cast over an house or an arme of a Tree being cut and falling where seasonable warning is given to all that are neer to take heed be the cause of anothers death such casuall Homicide is not in any kind punishable x Lib. 5. Co. ad l. Cornel de Siâ—ar sect 5 Inst. de l Aquil. A Law therefore that punisheth a man for such adventure or misfortune is not a just or rationall Law being indeed repugnant to the Law of God which protected such persons and appointed them a City of refuge to flye unto y Numb 35.15.22 Josh 20.3 Deut. 19.5 for such an act happening in such sort seemeth to be the work of God himself It is a cruelty also which Nature and Reason abhorreth that a King who ought to be as a Sheepherd and Guardian of his people should have an established liberty to endanger his Subjects lives and liberties by a criminal accusation brought against them and yet they be denyed the natural liberty and freedom to defend themselves by bringing that Evidence and assistance of Counsel that may serve to clear them Indeed all kind of awfull submission and reverence is due to the Prince from his Subject but that is no way impeached by a modest and fair defence And therefore by the Civil Law in any matter of complaint that was brought by the publick Exchequer whether Criminal or Civil the defendant had his full defence most free Defensionis facultas danda est his quibus aliquam inquietudinem fiscus infert z Lib. 7. Co. de Jur. fise Liberty of defence ought to be granted to those whom the Exchequer brings into any trouble And whosoever is impeached as a Malefactor that Law is so indulgent to him till he be convicted that if he be in Prison the Magistrate is to make known by open Proclamation what day he intends to hear him Ne hi qui defendendi sunt sayes a Lib. 18 Sect. 9. Dig. de Quest Paulus subitis accusatorum criminibus opprimantur quamvis defensionem quocunque tempore postulante reo negari non oportet adeo ut propterea differantur proferantur custodiae Lest they which are to make their defence be too suddenly brought to tryall by their Accusers and thereby destroyed Howbeit the Court shall not deny to hear their defence at any time when themselves will ask it for which cause the Prisoners may have a certain time set at first and then if cause be further day also may be given And though when the person accused is not under restraint if he shall not appear to answer the accusation some time within a year after Summons had his estate is irrecoverably lost and forfeited to the Exchequer and for that he shall never be heard more b Lib. 4. Dig. De requir vet absent damn yet as to save him from personall punishment neither the expiration of a year nor the efflux of any time shall barre him but that he may still be heard to defend himself c l. 2. co De Requirend rei For self-preservation is so d Hoc ratio doctâ— morgentibuâ— serâ—â— natura ipsa prascripsiâ— ut omnem semper vim à corpore à capite à vitae suae propuisarent Cic. pâ—o Mâ—l natural that a Law that is set up to infringe it may justly seem to fight against nature These Laws therefore and such like as doe thus crosse and encounter common sense and natural Reason are no fitter to be styled Laws then the dead Carkasse of a Man that is destitute of the essentials of Life Soul and Reason can be called a Man And therefore Tully did set down the truth when he taught e L. 1. de legib Eos qui perniciosa injusta populis jussa descripserint cùm
comes to be overthrown this shall not prejudice the legataries for they shall notwithstanding this Judgement thus by fraud obtained be heard to maintain and set up this will again f Lib. 14. Dig. de appellat And as no man shall be prejudiced so none shall reap any advantage by the fraudulent practise of another neither though he was no party nor actor in the fraud himself Alterius circumventio alii non praebet actionem g Lib. 49. Dig. de reg jur One mans-fraud shall not create in another any right to sue The Civil Law can as little endure that the true sence and meaning of a Law should be destroyed by a fraudulent interpretation that keeps the words but perverts the end for which it is made In fraudem legis facit qui salvis verbis legis sententiam ejus circumvenit fraus legis fit ubi quod fieri noluit fieri autem non vetuit id fit h Lib. 29.30 Dig. de legib He deales deceitfully with the Law that transgresseth the true intent of it though he does not trespass against the formal and precise words And therefore when the Law forbids a man to settle any more upon his Bastard than what will barely keep him alive it will not permit him to settle any superfluous estate upon any other person for that Bastards use or the Bastard to receive any such estate from his Parent by another hand Cum quid una via prohibetur alicui ad id alia via non debet admitti That i Reg. 84. de reg jur in 6. which cannot lawfully be done one way or directly must not be done indirectly or by another In like manner as nothing is more precious among men than Life Property good Name Liberty and the right of Contracts in the which the whole civil interest and welfare of all people may be rightly said to be comprised So it is not enough to provide in a general way for them neither for it does not suffice to declare by a Law that neither the Life Property nor Liberty of any Subject shall be taken away but by course of Law and a lawful trial first had nor to forbid calumnies and slanders nor to command that the contracts and agreements of men shall be mutually observed but a special and most vigilant care is to be had also that all proceedings of justice when a suit is brought concerning any of them be answerable to those great interests and that nothing be admitted which can any way though obliquely or afar off infringe or overthrow any of them Whereof the Civil Law is so tender that by bringing the Action a mans right is rather improved than made worse Nemo in persequendo deteriorem causam sed meliorem facit k Lib. 87. Dig. de reg jur To try a mans right is rather an advantage than any prejudice When therefore any of these rights be in question if the Law of a State be so short and defective as that a mischief may be done and yet no remedy be found or not a sufficient one or if a prejudicial act may pass against me that may endanger my whole right in the end and I not present thereat nor called unto it or if I have not liberty to examine my adversary upon his oath to something which will cleare the whole matter and whereof I have no other testimony but his own conscience or if I may not be admitted to make out the matter as well by violent and strong presumptions as by clear and manifest proofs or if the testimony of one onely witnesse be sufficient in any matter whatsoever to cast and condemn me or if where I cannot have my witness to the Bar through sickness or absence beyond the Seas there be not some expedient allowed to have his testimony upon his oath sent to the Court where my trial is to be or if such just exceptions as may take away or at least extenuate the credit of the evidence brought against me will not be allowed or if the Justice of a nation be too quick and over hasty in concluding upon the rights of men before they can well prepare to defend them or on the contrary be too slow and tedious as not limit a time when suits shall determine of themselves if they be not judged before or if one sentence shall be so final that I may not appeale nor bring my right to a triall any more I say where these proceedings or such like be allowed and and practised whatsoever is most precious and of highest value amongst men be it Life Property Good name Liberty right of Contracts or whatsoever else is flying to the sanctuary of the Law it is subject to be destroyed and taken away For whether the rights of a people be prejudiced by an irregular way of bringing them to trial and iudgement or by the iniquitie of those Lawes that shall judge them in the end the mischief is all one A State therefore that will sufficiently provide for defence of their peoples rights must not onely take care that the Lawes that must definitively over-rule and determine them be equal just and rational but the formes of trial must be the same also that the same security and just dealing which is the end of both may be obtained And herein the Roman Civil Law has been more exact and careful than some other Lawes of the world have been for there is nothing of what nature soever it be but the Civil Law has ordained a means to bring it to a discussion and trial either by giving a special Action in the case l Tot. Tit. Inst de action or a general one m Dig de praescript verb. in fact action relieving by ordinary remedies or if those fail by such as are extraordinary n Tot. tit Dig. lo. de in integr res titu helping men jure actionis or officio judicis that is by way of complaining in their owne name or borrowing the name of the Magistrate o Gl. in s actio Inst de Action verb. quam jur to make their complaints more effectual so that one way or other a remedy may be had whatsoever the evil be nor does it suffer any just complaint to go away unremedied And although it gives the highest authority to Orders and Decrees of Court yet it is so tender of and has such a heedful respect towards the Rights and Interests of men that whether a man be concerned alone in a cause or whether others be concerned with him it allowes of no Act Order Decree or Judgement but against those onely that were first call'd to see it done And therefore every judiciall act done without warning given is accounted surreptitious and declared void and null p Marant spec part 4. Distinct num 10. The effect of which nullity is that as to him that was absent and not heard the Cause is to begin againe Judicatum tantum
could be prosecuted against any person after two years time ended so that all the proceedings that should follow and be made after such time ended was absolutely null and void b Lib. 13. Co. de Judic Lastly so carefull it is to preserve and uphold the rights of men that it does not make any single judgement to be absolutely conclusive and finall if he that is cast be desirous to bring his cause to be tryed again by another Tribunall So much more fitting is it that the sentence of any Judge should be impeached and overthrown then that truth should suffer or any mans right should be injuriously taken away Within ten dayes therefore after sentence given he that is condemned may by appealing to the next superiour Judge complain thereof and upon sufficient error assigned or upon some further proof made then was before he may procure the first sentence to be quite reversed or at least reformed for the end of an Appeale is Vt aut iniquitatem aut imperitiam judicis corrigat c Lib. 1. dig de appellat To rectifie either injustice or errour These few instances for they are intended for no more and thereby to take a conjecture of the rest also may suffice to shew that as the safety of the peoples rights is the generall end and intention of the Civill Law so it does dispose and qualifie all its constitutions and particularly the formes of triall and judiciall proceedings to the self-same end and purpose and it does constantly hold and prosecute the same course in other matters For if the Civil Law be rightly understood it will appeare that they grosly erre who thinke that though by the Civil Law property is sufficiently enough maintained against common men yet that the Prince or Soveraign has a looser power given him thereby then other Lawes will allow to command or dispose thereof at pleasure because it is a rule in that Law that Quod Principi placuit legis habet rigorem d Lib. 1. dig de Constit Princi sect 6. Inst de Jur. Nat. Gent. Civil What pleases the Prince has the force of a Law and Princeps legibus solutus est e Lib. 31. Dig. de Legib. Novel 105 c. 2. A Prince is not tyed to Lawes Which being literally understood and not taken in that faire and moderate sense which by the course of the whole Law and by the current of Interpreters it is expounded in does import as if Property Life Liberty and all were subject and did hold of the Princes will But that this cannot be the meaning is most evident for that his meer Lust or appetite or every inordinate command that goes forth from him should be a Law is not so believed that the Civil Law ever intended But when the Roman State was now changed from being a popular State and was become an absolute Empire and that the people had conferred their whole power that was in themselves before upon Augustus Caesar in whose time it was that the Royal Law was made and his successors it was meant by those words that the Legislative power should wholly rest in him without the concurrence of any other and that thenceforward the Laws should come from him and be as obsequiously obeyed as if they came from the whole people but yet so that they should not be repugnant to the Lawes of Nature the common dictates of Reason or mischievous to the publick welfare And therefore sayes Harprechtus Verbum placendi aut Placiti non voluptatis non libidinis non etiam absoluâ—ae est voluntatis sed justitiae rationis consilii f D. sect 6. Inst â—od The word Pleases or Pleasure does not denote Ryot Lust or absolute Will but Justice Reason and good consideration so that though the pleasure of a Soveraign whilst he publishes any thing for a Law is binding and to be obeyed because a Law can come from none but him where the nature of the government is such Yet it must be equall just honest and profitable g Haâ—preâ—ht Inst de rer div in pâ—inc nu 130. And what does a Soveraign more in this then all other sorts of Governors whatsoever be they more then one as in an optimacy or be the government in the whole people or what more power is given in this by the Civil Law to an absolute Soveraign which is not by other Laws given to the supreme highest rules of any Nation Again all Laws in the world do allow those that have the Supreme Power in them to take away Liberty by Imprisonment where there is any publick danger by Freedom or where it may be a just punishment for contempt and disobedience and to take away life too for capitall offences committed and where publick defence calls for it to command their very Subjects persons and estates to such a proportion as the present necessities require for without this power no community can long endure nor any peace be preserved And more then this nor in any other cases does the Civil Law grant a soveraigne licence to touch either property life or liberty h Harpretcht loc titat nu 95. And where the Civil Law hath declared that a Prince is exempt from Lawes the meaning is not that he may violate and trample upon them as himself listeth as oft as they stand in his way for that is contradicted expresly by divers Texts of the Civil Law i L. 4 co de legib l. 23. de Dig legat 3. but that he is not punishable when he breaks them because he has no humane Superiour to judge or question him or to exact obedience from him that in some cases he may give license to his subjects not to observe some certain of them by way of dispensation that he may grant pardons to some that have transgressed them where the nature of the fact will bear it and that he may also quite abolish them when they are growne useless or hurtful k Harprecht loc citat nu 120. And under what Law or Government is it where all these things are not cleare without any dispute and held lawful and continually done And generally in all instances of the Civil Law as well as in those whereof mention is made before it may be observed that the imperial Law does not onely ratifie and confirm the general Lawes of Nature and of Nations but takes care also to reduce all its constitutions that might be any way instrumental to the distribution of justice in particular cases how remote soever they be from the prime and chief principles to a perfect conformity with them and so ought the Law of every State to do for that is the true way to make it rational throughout to keep it from being contradictory to it selfe And that particular Law that makes the least deflections from nature and the common reason of man and whose Acts and Edicts carry most of that evidence and demonstration along
right or safety of a few if their detriment or mischiefe may secure the whole In these cases Legum convenientiam aptitudinem semper expetimus non semper aequitatem The extremities of a Nation must be provided for by fitting and convenient meanes though the exactnesse of Right and Justice seems to be infringed for herein the Common wealth is like unto a Ship in a storm at Sea where the Master may cast over-board what private mans goods he will to lighten the Ship and to preserve the whole So where an enemy with an Hostile intent is coming against a great City the City may demolish or set on fire the Suburbs rather then permit the enemy to harbour there thereby to annoy and endanger the whole City The like must the establishments of Law be that are directed to a publick end they must aime to procure the common welfare without any respect to private right or imaginary reason But in such Lawes as are purposely made to defend every mans privaee interest and to pacifie contentions and quarrels arising thereupon and where the publick is not concerned it not onely may but ought to be otherwise They must hold forth Nature Equity Reason and a sound judgement so at to command every judicious mans assent and approbation and even they that are cast may not complain murmure or dispute the same And in the same manner has Wesenbeck in his Paratitles upon the Digests a Tit. de Just Jur. nu 14. differenced these two sorts of Laws Jus privatum saith he quia in reddendo cuique quod suum est versatur eo ad normam aequalitatis justitiae congruat oportet sed jus publicum non totum ad normam aequitatis vel aequalitatis ut jura privatorum sed ad id quod reip est opportunum praecipue aptatur The Law that is made for the use of each subject against another because the office of it is to give to every one his own it must measure it out by the precise rule of equality and justice But the Law that is made to order the generall welfare of the whole State is not tyed to any such rule of equity but is such as the advantages and exigencies of State require In all private affaires therefore that happen between party and party wherein there is no mixture of State-interest at all and which come to be determined by a Law we require that the rules by which such Controversies are appointed to be decided have not in circumstances for they may be arbitrary and according to meer will but in substance so sure a ground in Reason and common Equity for the most part as either to be consonant to the dictates of Nature or obvious to vulgar understandings or at least discernable by the wisest and most judicious of men acquainted with the principles of Law and the rules of Right and Justice Neither is it the bare reason of the wisest if it be such as is floating in the brain onely that will here suffice but it must be committed to writing and have such an authority to own it as is authenticall and currant amongst the greatest and best disciplined Nations also which kind of reason thus authorized especially in any ample measure is to be looked for and found onely in the Civill Law b Ratio naturalis secundum hominum captum quandoque variat multi non tam ratione ill quà m phantasia aguntur Leges autem latae à sapientissim◠viris judici◠emnis seculi approbatae certè cam rationem tenem Alb. Gentil de ju bel lib. 1. c. 1. CHAP. V. That the Customes of a Nation ought in like manner to agree with Reason ANd here I am not unmindfull that besides written Lawes and constitutions there are belonging to every Nation Customes and usages unwritten which have as great an over-ruling power upon the persons and rights of the people after they have been generally allowed and that their observation hath been constant and un-interrupted for a long time together And therefore sayes Modestinus a L. 40. Dig. de Legib. Omne jus aut consensus fecit aut necessitas constituit aut firmavit consuetudo All Law proceeds either from consent necessity or custome Neither is it rare but common to find in every Nation such usages as doe intermixe themselves with the acts of Justice and the rights of the people and yet they have by long continuance so worn out their Originall that no rationall account can be given of them nor no ground in reason rendred by those that use them and yet they will not stick to sacrifice their most pretious enjoyments to preserve them nor will admit of a change of them upon any pretence of greater advantages whatsoever The reason hereof lyes in the affection which the people are apt to bear towards that of which themselves are the Authors Customes being first brought in and consented to by them but Lawes are imposed on them by their Princes whether they will or no Consuetudines sayes b Rer. Judi◠l. 2. c. 1. Anaeus Robertus subditis neque graves sunt neque odiosae sed leges istae municipibus videri solent supra caetoras omnes acceptissimae cùm toler abilius sit consuerudinis vinculo quà m legum necessitate astringi Quà m dulce quà m gratum est voluntariae subjicii necessitati illo juris vinculo astringi cujus cùm authores simus puderet iniquitatem ant severitatem accusare At regia edicta non ratio sed sola dominantis voluntas justa sit an injusta sancit moderatur Customes are neither burthensome nor unpleasing to the people but above all other kindes of Law seem most acceptable since it is more tolerable to be tied to Custome than to an imposed Law How sweet and pleasing is it to be subject to a necessity of ones own making and to be bound by such a Law which when we have made our selves we cannot for shame complain that it is either unjust or rigorous But the Edicts of Princes flow not from reason but from meer will without respect either to right or wrong Besides though the reason of some Customes be not now discerned yet it cannot be supposed but when they were first admitted by the people they tended to their common good For Quoties de jure populi agitur apud populum cui mutare cui abrogare cui ferre quas velit leges accipere quas velit rogationes liceat nunquam se ipse diminuet They will never prejudice their owne rights by any Custome or Law which themselves establish sayes Quintilian a Declam 254. Howbeit it is no more essentiall to a Law then it is to Custome to be reasonable when it is first ordained b L. 1. 2. co Quae fit longaconsuet Rei non bonae consuetudo pessima est Nemo consuetudinem rationi veritati praeponat quia consuetudinem ratio veritas semper excludit
by any written Law and so continued for twenty years together And so it comes to passe that new Lawes are alwaies prepared to suit with a new Government Yet upon no change whatsoever are meer rationall Lawes repealed or grow out of use The reason hereof is because men can never lose their Nature forgoe their Understanding or quit their Reason Neither can a supposition be admitted that such Laws as these can be unsuitable to any Government for what kind of Government hath been hitherto devised by Man or established in any Nation with the which naturall Equity or the dictates of right Reason has not suited Nay it should be rather concluded there may be a Tyranny but there can be no government without them Hereupon it has been that no change that ever happened in the Roman state no nor the overthrow of the State it self could take away the force or use of the Roman Civil Law but that other Nations have assumed it into their territories and have made it serviceable to their occasions and wayes of governing how various and differing soever those occasions and kindes of government have been Furthermore though Lawes with all other worldly things besides have their times to waxe old and as it were decrepite in according to that of Claudian Firmatur senium juris priscamque resumunt Caniciem leges emendanturque vetustae Acceduntque novae Yet those Lawes that are inspired by Nature Reason and pure Equity can never in any time in all places at once lose their esteem or use These are the Lawes that carry a clause of perpetuity with them they were first born with Man and can never dye before him It might well be reckoned amongst the wonders of the World that the Civil Law made so many hundred years agone and which has seen the spoil and overthrow of Rome it selfe and many other States and Empires besides should still flourish in the Europaean Nations as if it were but new sprung up but that surely the eminent wisdome and known reason that is in it hath given that Law a life as lasting as the World it selfe It hath been observed of all Arts and Sciences that there is a kind of circular progresse in them they have their birth their growth their flourishing their failing their fading and within a while after their resurrection and reflourishing again And Aristotle f 1. Decaelo 1. Meteor himself who held the Arts Eternall as he did the World yet tells us there was alwaies a rising and a falling of them as of the Starres so as sometimes they flourished in one place and age and sometimes in another as the Starres sometimes shine in our Hemisphere sometimes in the other And so it may fare with that Noble and usefull Science of the Civil Law in like manner it may be obscured and under a dark thick cloud for a while in one place or other but it can never be irrecoverably lost every where but it will still find some place to prosper in till at last it be even courted to return thither from whence it was before expel'd Lastly to shew the benefit of câ—ear and rationall Justice yet further As it is of highest advantage and benefit to a Nation to purchase the acquaintance and correspondence of other Nations abroad as well for traffique sake by exchanging their Commodities together as also to be confoederated by a league with them to be made the stronger and likewise for doing all good reciprocall offices each to other so nothing can more strongly invite forreigners frequently to resort unto to trade deal and communicate with a Nation then an assurance that in all their dealings if difference happen to arise they shall receive plain and clear justice fetcht as it were from the very bowells of Heaven and Earth and grounded upon the very same reason they bring into the Nation with them But if in stead of this fair and civil entertainment they shall be led into labyrinths of something call'd Law where they can discover no light of that reason whereof they partake as men nor yet any of those principles which in the acts of Justice are currant amongst all other civill Nations they will conclude it is not safe nor honourable to converse any longer with such a Nation but will forsake and abandon it as barbarous CHAP. VIII That Christian Nations having entertained the Civil Law into their Territories have thereby acquired to themselves the most rationall Law that hath been ordained as by the constitutions thereof will appear THus have I laid down the most excellent fruits that a Nation reaps by framing for it selfe such Lawes as are agreeable to the old and ancient grounds of Reason in Nature the Grandmother of all Law justly so styled Of the which the Nations of Christendome for these many hundreds of years have therefore very plentifully partaken because they have admitted into their Schools and Academies the Study and into their Tribunalls the use and practice of the Roman Civil Law for although all publick businesse and the generall affaires of State wherein the interest of the common welfare lyes are carried on by Laws of each Countreys own making fitted to time place persons occasion and accidents that doe happen which the Civil Law cannot be made to serve nor suit withall so various each Nations exigencies and occasions are Yet they borrow their greatest if not all their light and direction from the Civil Law in setling the contentious businesse a Omnia judicia aut distrahendarum controversiarum aut puniendorum malesiciorum causa reperta sunt Cic. pro Caecin of the Subject and the matters that arise in difference betwixt party and party their perfectest Municipall Lawes having contributed so little to wards their determination that in comparison of what they have made no provision at all in that which they have seemed to provide for is to be accounted nothing Most States employ their consideration most upon the publick welfare and upon such interests as have an universall effect upon the whole body as easiest to be seen and requiring but one and the same remedy for all But in a numerous multitude and where their transactions and dealings with one another are so various and indeed by different circumstances become infinite to suit each persons case and businesse with a proper and fitting rule to decide it is a work so void of end or bottome and past finishing that no state will set upon the enterprize to begin it especially when the Art and Science of the Civil Law has done it to their hands so excellently well and with so much wisdome pure reason and true naturall equity already The Romans who through the largenesse of their Empire and the long continuance of it had dealings with the greatest part of the World then inhabited and found out and so had beyond other Nations the greatest opportunity to see the wonderfull variety of questions and controversies that fall out between Man and Man
Principum accivitatum imperia stabiliora sunt ab injuria finitimorum tutiora cùm soci etates ac foedera sic contrabuntur ut aequabilis quaedam ex omnibus potentia existat Bodin de rep l. 5. c. 6. and by some a lawfull way of Anticipation b Sunt qui neuâ—rarum partium se esse verbo declarant re tamen faces utrisque ad bellum instimmandum clam suppedâ—â—ant ferendum illud quidem quodammodo si sua saluti aliter consulere non possint Bodin de rep lib. 5. cap. 6. Which whether it be or no it is not proper here to determine But sure I am to be regard lesse of such an over-spreading Neighbour were a token of great improvidence and stupidity And it were but needfull for the lesser States to confoederate and combine together and to make joynt preparations to oppose her in case she shall offer to molest any one of them for so active is Man by nature that where a sufficient power to hurt is present it is seldome seen that Will is wanting c Una est tenuium adversus potentiores securitatis cautio ut scilicet potentes si nocere velint non possint cùm nocendi voluntas ambitiosis hominibus imperandi cupidis nunquam sit defutura Bodin de rep lib. 5. cap. 6. Also since it is neither honourable nor advantageous for any young Prince to intermarry even with the Noblest or Richest of his own Subjects he must of necessity fit himself out of the Royal Families of other Princes here therefore they must be seen known and dealt with also Besides a free and open recourse to forreigne parts is so absolutely necessary to the very being of a Nation that we see oft-times the restraint and shutting up thereof in point of trading does so exasperate and incense a people that the whole frame is ready to be dissolved and the Subjects ready to rend one another in pieces not sparing to discharge their anger even upon the very Prince himselfe These and such like instances doe demonstrate how not only advantageous but unavoidable it is for severall and divided Kingdomes to correspond act and negotiate each with other which it is not possible for them to doe but that controversies both various and difficult and which mainly concern their severall interests even to no lesse value sometimes then whole Kingdomes will fall in that must be debated and must have some determination And when every thing else has a Law to guide it and a rule to examine and try it by insomuch as no one society or petty Common-wealth can stand without some Law the like necessity must there needs be of a Law to maintain and order the communion of Nations corresponding and acting together Si nulla est communitas quae sine jure conservari possit quod memorabili latronum exemplo probabat Aristoteles certe illa quae genus humanum aut populos complures inter se colligat jure indiget sayes d In Prolegom Grotius If there be no association which can be held up without some Law as Aristotle hoth proved by an argument drawn from that close partnership which is usually amongst Theeves and Highway-men then surely is there want of a Law to direct that grand fellowship which linkes all mankind or divers States together And again e Grot. ibid. Sicut cujusque civitatis jura utilitatem suae civitatis respiciunt ita inter civitates aut omnes aut plerasque ex consensu jura quaedam nasci potuerunt nata apparet quae utilitatem respiciciunt non coetuum singulorum sed magnae universitatis As the Laws of every particular Common-wealth are made for the benefit thereof so some certain Lawes might be and were certainly agreed upon by all or most of the Nations of the world which should conduce to the welfare not of any one people but of the great communion of all men Now the Law that guideth those transactions which are usually observed to arise between grand Societies is the Law of Nations which is most naturall and rationall in its kind too being grounded at first upon a common necessity that lay upon all Nations to have reciprocall dealings and negociations with one another which the very Nature of those several dealings and Reason it selfe dictates as necessary to be observed so that without it such communion could not long endure Under the regulation hereof comes Embassies courteous entertainment of forreigners and strangers Laws of Arms freedome of Traffique right of Contracts free passage through each others Borders Reprizalls the preserving and redemption of Captives Leagues Truces Articles and such like The strength and vertue of which Law is such that a people can with as little safety violate it by any act how advantageous soever it may seem to be to the whole Body f Qui civium rationem babendam dicum exterorum negant bi communionem societatem humani generis dirimum Cicer. as a private man can in hope to benefit himselfe infringe the Law of his Countrey Sicut civis qui jus civile perrumpit utilitatis praesentis causa id convellit quo ipsius posteritatisque suae perpetuae utilitates continentur sic populus jura naturae gentiumque violans suae quoque tranquillitatis in posterum rescindit munimenta g Grot. in Prolegom As a Subject trespassing against the Law for a present advantage brings the future happinesse of himselfe and posterity into hazard so a people that shall trample upon the Law of Nature and of Nations strips it selfe of the onely preservative of their peace and safety It is not onely lawfull but honourable for any people either to right or revenge the breach of the Law of Nations And as in the state of one Countrey any man may accuse upon a publick crime so in the state of the World any people may prosecute a common offence for as there is a civil bond among all the people of one Nation so is there a naturall knot among all men in the world which should it be once dissolved it must needs endanger the whole frame of that communion Nay of such power and praeeminence is the Law of Nations that no particular Nation can lawfully prejudice the same by any their severall Laws and Ordinances h Si Princeps velit vel jus gentium primarium vel secuâ—darium intra sui imperii limites abrogare potestate sua abuti censeudus est Barbos Collect. in c. 9. dist 1 â—n 6. more then a Man by his private resolutions the Law of the whole Common-wealth or State wherein he liveth for as a Civil Law being the act of a whole body politick doth therefore over-rule each severall part of the same body so there is no reason that any one Common-wealth of it selfe should to the prejudice of another annihilate that whereupon the whole world hath agreed for which cause the Lacedaemonians forbidding all accesse of strangers into their
rationum damonstrationum evidentia sic ordinis praestantia antecellunt The Roman Lawes saith he are made after the likenesse of the Decalogue and do not differ from those notions and principles of Reason which Nature hath implanted in all men And it is out of all question that setting aside Gods Law they are as more ancient so more renowned as of higher authority so truer and clearer in determination as of a more evident demonstration and reason so of a more excellent rank then other Laws that yet have been Which conformity and likenesse of the Civil Law to the Divine and Eternall has been the onely cause that the Casusts and Divines that have created upon cases of Conscience and have laboured to teach men what rules they must walk by to doe justice and to execute righteousness in their dealings and communications with one another they doe every where about their books and writings propose set down the very rules and maxims of the Civil Law as the best lessons of morality justice citing the very Lawes themselves and the authorities of that profession which were incongruous and vain for them to doe were not their justice equity and soundnesse unquestionable and their authority beyond all dispute even in those things for which their authority is brought by them Neither is it they alone that set this high estimate upon the authority of the Civil Law since the Learned in other faculties doe the same with whom there is nothing more frequent then when the duties of men one towards another in their severall relations com to be set forth as between Parents and Children Masters and Servants Husband and Wife Sovereign and Subject Magistrates and private Men Captain and Souldiers one Citizen with another or when the best rules and advantages are to be laid down for the first founding of a Common-wealth or the keeping of it in safety and splendour or when the justice and convenience of a Law is in question or the actions of Men even of Princes themselves be to be approved or condemned In all these cases and the like nothing I say is more usuall with Writers of highest renown for Learning and wisdome then to fort fiâ— their resolutions and dictates one way or other with the practice and discipline of the Roman State and to make the Civil Law their Touch-stone to try all things by and the best and most approved ballance to weigh them in judging the authority thereof to be beyond deniall in any thing that it does either defend or disallow and for such as it is presented does it passe currant with all men The Civil Law requires that an act should be worthy and laudable as well as lawfull that it should be faire equitable ingenuous and candid as well as strictly just Subtilties and niceties of words and those apices juris finesses of Law and fine-spun webs of Wit which are opposite to integrity and honest dealing and which through a precise form of words and strict propriety of speech would frustrate what was purely at first intended it will not allow of or endure Bonae fidei non congruit de apicibus juris disputare says Vlpian t l. 29. Parag 4. Dig Mandat It suits not with sincerity to contend about curiosities Sensum non vana nominum vocabula amplecti oportet u l. 2. Co De coust pecuu The true intended sense and not the bare litteral signification is to be pursued Scriptum sequi calumniatoris est boni verò judicis voluntatem scriptoris autoritatemque defendere says Gail x Lib 2. obs 132. out of Cicer pro Caeâ—inn It is the part of a Caviller to keep close to words but of an upright Judge to uphold the intent and meaning of him that spake them Qui pertinaciter à scripto recedere non vult perniciosè erraet sayes Peckius y Ca 88. De reg ju in 6. in in princ He shall offend perniciously that will grant but what the very words will bear and will be got to yield no further And therefore the Civil Law which we have now had it been in being in the third Punick War when the City of Carthage by a crafty exposition of words was quite demolished by order of the Roman Senate after they had first given their faith to the Carthaginians in these expressions Civitatem Carthaginis salvam fore jura privilegia immunitates easdem habituros quibus antea semper usi fuissent The City of Carthage should be saved and the same rights immunities and priviledges should be continued unto them which they always had would have condemn'd the whole Senate for such their breach of faith and treachery though there was not the life of any person touch'd For who could doubt but that the Carthaginians articling for the safety of the City did aim and intend to have the place preserved as well as the persons And it was a shameful defence to say as the Romans did that when the people of the City were all preserved and kept alive the true City was saved which was as much as they promised though the walls and buildings themselves were destroyed Civitatem maenibus urbis minimè contineri The word City does import the Men and not the Structure or Edifices thereof For although in strict propriety of speech there is that nice difference inter urbem civitatem quò urbs aedificia Civitas incolae sint yet leguleiorum est syllabas apices aucupari non militaris simplicitatis sayes Alberâ—cus Gentilis z De jur Bell lib 2. ca. 4. It is for Lawyers to catch at words and not for Souldiers whose plain meaning admits not of such nice distinctions In fide quid senseris non quid dixeris cogitandum est says Grotius a De Ju. Bell lib 2. ca 16. nu 1. out of Tully Where faith is given what was meant is to be regarded rather then what was spoken The Plataeans were as selfe and unworthy when after they had promised to send home the Prisoners taken slew them first and so sent them home dead quasi cadavera essent captivi mortuus homo esset homo says Albericus Gentilis b d. ca 4. as if it were to be believed that the Carkases were the Prisoners themselves or a man dead could be thought a man And as deceitful were the Baeotians too who having ingaged to restore the City did deliver it up not standing but rased and pulâ—d down So was it an act most treacherous and false in Alexander who first gave a besieged Town an Assurance that they should go forth of the Town safely and then after they were quite gone forth and set forward some part of their way put them all to the sword Grotius c d ca 16. out of Tully says truly ejusmodi fraudibus astringi non dissolvi perjurium by such fraudulent evasisions perjury is rather augmented then wiped away In Contracts between
Princes or several States exuberantior fides requiritur a greater measure of sincereness is required and subtil interpretations ought to be avoided and such a meaning ought to be given to their compacts as not Criticks but vulgar and plain-dealing men may like of and which was most probably intended by him for whose sake and benefit they were originally made And in such sense Divines do agree all Oaths ought to be taken Quacunque arte verborum quis juret Deus tamen qui conscientiae testâ—â— est ita hoc accipit sicut ille cui juratur intelligit says Isidore cited in the Canon Law d c. quacunque caus 22. quaest Let the words by which we swear be never so artificially laid yet God to whom our most secret thoughts are manifest takes every oath in such a sense as it is understood by him to whom such Oath is made For which cause St Austin e Epist 224. has pronounced them perjured qui servatis ve his expectationem corum quibus juratum est decepe unt who having fulfill'd the bare words have frustrated the true expectation of those to whom they sware Even as the Civil and Canon Law both deems them not fulfillers but fraudulent transgressours of a Law that perform the words but act against the true intent and meaning of it Certum est quòd is committit in legem qui verba legis complectens contra legis nititur veluntatem f l. 5. Cod. De legi reg 88. De reg ju in 6. Whosoever keeping strictly to the words of a Law perverts the intent does clearly offend against it For Lex non in verbis sed in sensu non in superficie foliis verborum sed in medulla consistit says Peckius g D. reg 88. nu 7. The Law lies not in the outward bark of the words but in the pith and marrow which is the sense Likewise in last Wills and Testaments it will have the minde and meaning of the Testator if known to be pursued whatsoever the proper signification of the words be Non enim in causa testamentorum says Marcellus h l. 69. Parag. 1. Di. de leg 3. ad definitionem utique descendendum est cùm plerunque abusivè loquantur nec propriis nominibus ac vocabulis semper utantur In questions about Wills we must not flie to that sense that the words will in extremity bear since most do speak improperly and they are but few that can deliver themselves in proper and apt expressions And therefore says Mantica i De conject ult vol. lib. 3. Tit. 3. nu 1. Cavendum est ne dum nimia subtilitate verbonum utimur vera judicia defunctorum subvertantur We must take heed that we do not so precisely observe the words as to disappoint the true intentions of him that uttered them From which sentences and sayings of the Civil Law it is clear that no words forms niceties or propriety of language is of any regard in the Civil Law in comparison of truth faithfulness and integrity For verba menti non mens verbis servire debet Words were made as instruments to serve and express the mind and not to command or controul it Further it takes care to suppress not onely those things which are manifestly evil but some things also which are no otherwise bad then as they are illaudable and undecent Non omne quod licet honestum est k l. 144 Dig. De reg jur Every thing that is lawful the Civil Law does not esteem to be honest If a Divorced wife Marry again and by that marriage has a daughter though she be not daughter in law to the first husband nor any way of kin or allied unto him since the first marriage was quite dissolved yet he cannot marry her l Parag. 9. Inst de Nupâ— Neither will it allow the father to marry his bastard daughter nor the father to marry the sons spouse nor the son to marry the fathers the reason is quoniam in contraheudis matrimoniis naturale jus pudor inspiciendus est m l. 14. Parag. 2 Di. De rit 〈◊〉 in matrimonial copulations it ought to be considered what nature and sobriety does allow of and where it be doubtful whether a marriage may be lawfully had or not this rule â—â— ever prescribed In re dubia certius modestius est hujusmodi nuptiis abstinere n D. l. 14. Par. 3. in an uncertainty it is safest and most modest not to contract such marriages So that in some things Quod non vetat lex hoc vetat fieri pudor and as Bartol ol 8. Dig. De Aliment leg has expressed it Non modo obligatio verum etiam verecundia nos obligat There be some things which for very shame we must forbear to do though otherwise the Law will permit us to do them The Civil Law tels the very Emperour himself that for him to demand a Legacy by a Will that was void inverecundum est it was undecent Decet enim tantam majestatem eas servre leges quibus ipse solutus esse videtur p l. 23. Dig. de legat 3. It is most beseeming his Highness for to keep those Laws whereof he may seem to be free And again Digna vox est majestate regnantis legibus alligatumse profiteri q l. q. co De logib It is language worthy of a Prince to acknowledg himself bound to Laws What did Seneca in his grave Philosophical precepts say more when he cried out Quà m angusta innocentia est ad legem bonum esse quanto latiùs officiorum patet quam juris regula multa pietas humanitas liberalitas justitia fides exigunt quae omnia extra publicas tabulas sunt How poor is that innocence to be but as good as the Law requires How much further does the officious respects which men owe to one another go then the letter and rule of Law How many things be there which Piety Humanity Nobleness Equity and Uprightness do exact which are out of the provision of the Law altogether When any thing in Wills Contracts Laws Statutes or Testimonies is rendred so doubtful that it is capable of a tetrick and severe as well as a mild and temperate of an odious as well as a favourable meaning it does so much affect clemency gentleness and moderation r Nibil nobis tam gratum est quà m humanitas says Justinian lib 57. co De Episcopal audient that the gentlest and the softest interpretation shall be chosen and it shall be taken in the mildest and best sense What is odious and punishing it restrains and keeps in to the utmost and admits of nothing more in that case then the strict propriety of words will enforce But what is favourable gracious and pleasing it enlarges and widens by stretching them even to an improper sense and signification These rules therefore and such like are to be frequently
eod In all its constitutions it opposeth and setteth it self against the oppression of great ones and hateth that wrong that comes from the potency or greatness of any person If a person of honour shall forcibly carry away a Virgin or invade the possession of another he shall be tried by the ordinary Judge of the place where he offendeth and not be allowed any higher or more noble Judge which else he may claim to have for omnem hujusmodi honorem reatus excludit sayes the Text of the Law b l. Co. Ubi senato vel clariss His guilt renders him uncapable of any such Honourable Priviledge Neque honos ei servatur qui se in tantum scelus deduxit c l. 47. Dig. de ritu nupt Honour is no protection for him that hath stained it with such an odious crime It will not allow persons of great power or high place to interest themselves in the controversies or litigious estates of others neither by solliciting them in Court nor having their names used to countenance them ne tenuiores importunis potentium intercessionibus opprimantur sayes the Text d l. 1. Co. Ne liciat potent patrocin that is lest might should bear down and be too hard for right Nay it will not admit either the publick Exchequer or the Common-wealth upon any pretence of debt gift or assignment to them made to lend their name or patronage for the asserting of others rights e Tot. Tit. Co. Ne fiscus vel resp proturation Ne inde injuriarum nascatur occasio unde jura nascuntur f l. 6. Co. unde vi that is lest they that should do most right should be the occasion of doing the greatest wrong And it is remarkable how disdaining the expressions of the Law are in that particular and yet but such as upon the like occasion are frequent and common in the Law every where Petition being made to Gordian the Emperour that he would suffer it his answer was Contra juris rationem desider as g l. 1. Co. Ne fiscus vel resp The request was opposite to right reason The same Emperour being asked again the same thing said Hoc temporum meorum disciplina non patitur Vnde jus tuum si quod tibi competit citra invidiam fisci mei tueri solenniter cura h l. 2. Co. eod that is it agrees not with my fashion or government so to do If therefore you have a right prosecute it in your own name without drawing into odium my Exchequer The Emperours Dioclesian and Maximilian to the same thing peremptorily say Abhorret à seculo nostro i l. 3. Co. eod It was a thing that he and all of his time abhorred And again k l. 4. Co. eod that it was contra seculi sui tranquillitatem It would be an inlet to a general distemper to permit it It will not endure any fraudulent fallacious or deceitful dealing l Tot. Tit. Dig. Co. de Dol. mal If a man does wilfully alien to defraud his adversary his act is vain for in the eye of the Law he is taken to be in possession still Qui dolo desierit possidere pro possidente damnatur quia pro possessione dolus est m l. 131. Dig. de reg jur Especially it hates deceit most in those whom it is most forward to relieve when they are deceived The Civil Law allows not a woman a capacity to be surety or to be bound for others though she might contract for her self propter inbecillitatem sexus being prone to be drawn in and to be wrought upon n Tot. Tit. Dig. ad S. C. Vellcian Which restraint did bind her from being bound for her own husband o l. 2. Dig. eod But if when she knows her priviledge and will cunningly dissemble it and offer to be bound notwithstanding and the creditor is such a one as may be justly ignorant of the Law in that particular or if she presents herself in mans apparel the Law will not relieve her but she remains subject to action For ita demum mulieribus subvenitur si non callidè sint versatae Infirmitas foeminarum non calliditas auxilium meruit p d. l. 2. parag 3. It is their ignorance and weakness that the Law favours and not their craft and subtilty So no act is binding to him that is under age q Tot. Tit. Dig. de minor But if he shall fallaci majoris aetatis mendacio aliquem decipere say and pretend to him that deals with him that he is of full age when he is not in that case he stands obliged and is remediless Nam errantibus non fallentibus publica jura subveniunt r l. 2. Co. si min. se major dixer It is errour and imprudence and not fraud that the Law will succour Ingratitude is so odious in the Civil Law that if a slave that has been manumised shall bear himself unthankful towards his Master or if a son shall recompence the benefit of being quit of his fathers power and command with some injurious act or office against his father they may both for their ingratitude be brought into their former yoke again ſ Welenb Parat Dig de obsequ parent patron praestand And generally if I have out of my free bounty bestowed any thing upon another if he shall attempt to betray my life or estate to mischief or pass upon me any weighty injury I need not suffer my bounty to remain with so unworthy a person but may recall it again from him t l. 10. Co. De revocand Donat. Cùm magis in eos collata liberalitas ad obsequium eos inclinare deberet quà m ad insolentiam erigere u l. 1. Co. eod Since bounty to ought to invite men to be rather obsequious then insolent Howbeit my heir if I die shall not sue to recovet it Etenim si ipse qui hoc passus est tacuerit silentium ejus maneat semper sayes the Law x d. l. 10. If I against whom the ingratitude was committed did not complain let it be buried in silence for ever The elegance wherewith it has expressed its detestation and severity against the odious and unnatural sin of men carnally mixing with one another is very remarkable Cùm vir nubit in foeminam viris porrecturam quid cupiatur ubi sexus perdidit locum ubi scelus est id quod non proficit scire Vbi Venus mutatur in alteram formam Vbi amor quaeritur nec videtur Jubemus insurgere leges armari jura gladio ultore ut exquisitis poenis subdantur infames qui sunt vel futuri sunt rei y l. 31. Co. ad l. Jul. de Adult The state and quality of the matter requires me not to translate the words though most elegant The order that the Civil Law has setled for the sharing of a mans estate who dies intestate is very
e Siâ—hard in Rubr. Co. de compensat Yet it will not suffer me to plead a debt against him that has put into my hands a summe of money in trust to keep for him because my faithfulness and truth was here relied upon nor against the Exchequer that demands tribute or custome for that the safety of the people is therein concerned f Parag. 30. Inst de act l. 3. Co. de compensat The Romans did so throughly see the necessity that lay upon men to perform mutual offices and kindnesses each to other that to encourage men the more to pay these reciprocal duties so necessary to each others common being the scope of their Laws tended to secure all men from sustaining any prejudice by being officious or active for the benefit of other men If therefore in my friends absence I expend money or contract a debt upon my self to accommodate and improve his business though I did it without his privity or knowledge the Civil Law will see all that I have laid out shall be restored me and will compell him to save me harmless where either I have or can possibly suffer detriment for his sake For sicut aequum est sayes Gaius negociorum gestorem actus sui rationem reddere eo nomine condemnari quicquid vel non ut oportuit gessit vel ex his negociis retinet ita ex diverso justum est si utiliter gessit praestari ei quicquid eo nominâ— vel abest ei vel abfuturum est g l. 1. Dig. de negoâ— gest As it is but fitting when I undertake to act in another mans business I should give an account for what I do and answer for any thing I have done amiss therein and render unto him such profits as his affairs and goods have yeelded So on the otherside it is but just where I have served him with success and advantage that there he should reimburse me all that I have usefully expended and free me of all present and future prejudice whatsoever Hence is it that if I pay another mans debt with my own money or free from captivity anothers son or such neer kinsman whom nature would oblige him to redeem or if being a Physitian I attend and prosecute the cure and recovery of anothers servant that is sick or wounded in none of these cases will the Law suffer me to be a loser in any measure for what cost I have been at or whatsoever I have disbursed shall be allowed me Iniquum est sayes Gaius officium suum alicui esse damnosum h l. 7 Dig. Testam quemadm aper It is unreasonable that a man for his courtesie and goodness should reap a prejudice Upon the equity hereof is that proceeding in the Admiralty Court clearly justified whereby if a Ship being set upon by Pyrats or by enenemies shall be rescued by anothers Sâ—ip seasonably coming in to her rescue it charges the Ship that is thus redeemed with salvage money to the other that did so endanger herself to preserve her that recompence being but in lieu of all dammages thereby sustained and for future encouragement to other to fight in the defence of those that they see assailed hereafter Upon the same equity is it that when a Ship is in danger to be cast away through a raging tempest if to lighten the Ship some of the heaviest goods belonging to others be thrown overboard and thereby the Ship and the rest of the goods comes safe home the loss is made common and reparable by the whole AEquissimum enim est sayes Paulus commune detrimentum fieri eorum qui propter amissas res aliorum consecuti sunt ut merces suas salvas haberent i l 2. Dig Ad leg Rhod. It is most equitable that their wares should joyn to make up that loss which was the onely means whereby they were preserved In like manner though goods taken at Sea by Pyrats from the true owners may be challenged and regained from any hands where ever they shall be found and met with though it is otherwise in goods taken by an enemy in a just and open war yet if a man shall expend his own money to redeem them out of the Pyrats hands not for his own use or to make a good bargain for himself but with an intent to bring them home to their true owner in this case if the owner will have them he must first lay dawn the purchase money k l. 6. Dig. de Captiv postlim revers l. 2. parag 3. Dig. ad leg Rhod. Nay sometimes the Law will enjoyn a man to pay for that which he had got before For if three be taken prisoners in war and one be permitted to go home to procure mony to pay for the ransoming of them all a condition added that if he that is let go returns not the two that are left behind shall stand ingaged for his ransome as well as for their own in this case what money soever they lay down for him he is bound to repay them though he had gotten his liberty before l l. 21. Dig. de Negoe gest For the Law will not suffer a man to be damnified by any act which is done usefully in contemplation of another And herein the Law does not so much look upon the success or sequel as the good will and probable undertaking And therefore if I should fence or cast a wall about another mans Island to keep it from overflowing and it is overflown notwithstanding or if I bestow paines and cost to cure another mans child or servant and he dies yet the Law will see me satisfied Nam sufficit si utiliter gessi etsi effectum non habuit negocium sayes Vlpian m l. 10. Dig. deâ—negoc gest It is sufficient that I did what was to be done though the intended effect did not ensue But here some caution and wariness must be used For he that thus acteth for another must be sure that he does no more then he that he acteth for would have done for himself neither must he expend any more then is profitable and necessary and he can bear n l. 10. parag 1. Dig eod Also he must not act after any countermand be once sent him or that he be once bidden to desist o l uls Co. eod For in neither of these cases will the Law help him Further if he be a father or other of most near relation that deals for the benefit in the concernments of such an one as the Law may possibly presume he does it rather to testifie his natural affection towards him then to demand any thing of him for the same I say if there be any such proximity or nearness and yet an eye to to future satisfaction he must declare and make protestation that it is done with that intent and not donandi animo not out of any mind to bestow it freely but to be allowed for
the same else the Law will strike it out upon the score of affection and natural obligation And so did Alexander Severus declare to Mother Hereunia who when she had fed and maintained at her Table her children and laid out money besides for their other uses when they came of age she demanded satisfaction of all from the but being denied it she complained to the Emperour who made her this answer Alimenta quidem quae filiis tuis prastitisti tibi reddi non justa ratâ—one postulas cùm id exigonte materna pietate feceris Si quid autem in rebus eorum utiliter probabili more impendisti si non hoc materna liberalitate sed recipiendi animo fecisse te estenderis negociorum gestorum actione id consequi potes p l. 11. Co. eod Thou hast no just reason to demand payment for that alimony and sustenance which thou didst afford thy children for very natural piety did require it of thee But if thou hast usefully and in a probable hope to advantage them expended also money about their business if thou canst make it good that thou didst it not out of a free mind nor meerly as a Mother but with an expectation to be reimbursed thereof by thy children the Law will enforce them to pay it thee back again Lastly he that will voluntarily and of himself being not commissioned act in anothers business if he intends to ground any demand upon it he must be sure not onely to think and intend a benefit or advantage to him whom he is about to serve but it must be really so For let him think it never so beneficial and wish â—t never so much yet if it be not so indeed the loss will be his and he can challenge no satisfaction for what he does or expendeth Vt enim eventum non spectemus sayes Ulpian negocium debet utiliter esse coeptum q l 10. parag 1. Dig. eod Though we value not the success yet it is requisite that it should be evidently useful or necessary when it is first undertaken Lastly not to sail any longer in an Ocean so vast and infinite having given instances enough to measure the rest of the Law by tanquam ex pede Herculem though it is the proper work of every Law that is made to declare to the people what things they ought to do and from what they must abstain and wherein they may take their full freedome r Legis virtuâ— est imperare vetare permittere punire l. 7. Dig. de legib yet no Law has ever done it so fully and perfectly as this has done For Princes Rulers Councellours of State Judges subordinate Magistrates Advocates and Clients Proctors Registers and Notaries Masters of families Husbands and Wives Children and Servants Masters and Scholars Tutours and Pupils Merchants Factours Buyers and Sellers Letters and Hirers Borrowers and Lenders Officers and Souldiers open Enemies as well as allies and Confederates Embassadours and Nuntios Conquerours and Conquered Owners Masters and Captains of Ships Pilots Mariners and Passengers Aliens and Natives Fiduciaries Mediatours Substitutes and lastly all sorts of people of what age degree or condition soever they be may read their truest duties in this Learning and be directed how to order and demean themselves aright in their several offices and functions So that when the learning of this Law is thus universal running through the several negociations and matters of intercourse between Man and Man Nation and Nation and having a resolution ready for all such questions as arise upon them and is so rational withall that its decisions are rather the strong enforcements of reason then any commands of will it ought to be no matter of wonder to us that it has found so much credit and authority with Christian Nations as to make it the rule to end their greatest Controversies The End of the First Book LEX LEGVM OR THE EXCELLENCY Of the Roman CIVIL LAW Above all other HUMANE LAWS WHATSOEVER The Second Part. London Printed for R. Royston at the Angel in Ivy-Lane 1656. LEX LEGUM OR THE EXCELLENCY Of the Roman CIVIL LAW Above all other HUMANE LAVVS WHATSOEVER CHAP. I. That the greatness and splendour of the Roman Empire does evidence the singular vertue of the Law it self to which as to its proper cause it may be ascribed ALbeit it be praise sufficient for the Roman Civil Law that it hath more of natural equity and pure reason in it then any other Law of Man and that more need not be said to divert a Nation or people from throwing it out of their Territories or disesteeming it then that they may thereby seem to abandon their own reason and stifle the very dictates of nature and even stop up that fountain from whence all their own particular Laws were at first derived for lex Romanorum legum omnium Mater nuncapatur a Addit ad Capitul Lud. Imper ca. 4. in God leg Antiqu. the Roman Law is called the Mother of all Laws that have since been made Yet because there are many other grounds upon which it may he yet further extoll'd and set up above other Laws I think I cannot spend time and pains better then to set them down especially when I see every thing is laid hold on to cry that profession down And surely if the dispensation of right justice be a principal means to make a State glorious and flourishing this Law must needs surpass in excellency all other Laws by how much the Roman State whch was all along carried on by that Law did in greatness exceed and in splendor out-shine all other States and Empires that have yet been Touching which the Roman story every where gives us to undestand that the Roman State in process of time grew so large in Dominion and Power that it spread it self almost over the whole World there being few Nations which were not brought under its rule and government and indeed was esteemed the common countrey of all men and the Center of the whole earth Tantae erant Romanorum vires ut Asia Africa maxim Europae parte subactis iisdem ferme quibus Solis cursus metis imperium suum finirent sayes Loccenius b Period Imper lib 4. ca. 5. The potency of the Romans was grown to be such that Asia Africa and the greatest part of Europe being Conquered the Sun and the Empire did almost run the same race It maintained intercourse of Trade and held correspondence with all other Nations of what sort constitution and language soever It was the common c Nihil principe dignius nihil magis optandum quà m dissidiorum ac bellorum inter popules arbitrum eieri ut olim Senatus Populusque Romanue propter summant virtutis quam de se ipse concitarat epinionem Bodin de rep lib â— ca. 6. Judge and Umpire to arbitrate the differences of other Princes and people It was the seat of Learning and receptacle of
just rational and honest Laws do deserve to make their memory still famous amongst men because so much use has been made thereof ever since in the governing of so many States Empires and people And well did some of the ancient Fathers of the Church as also some of our later Divines observe that without doubt God did therefore indue the Romans with such admirable skill in government and Law making that after Nations might have a good example to follow It is St Austins judgment i Lib. 5. De civitat Dei ca. 6. That the Roman Empire had that glorious increase not onely to be a fit guerdon to the vertues of such as bore rule there but also that the Citizens of heaven in their pilgrimages upon earth might seriously attentively fix their eyes upon those examples And before him Tully as Lud. Vives hath cited him k Lib. de caus corrupt art being to draw a Model of a Common-wealth and Laws to govern it withall setâ— before his eyes no other pattern but that of the Romans to which in his judgment all people should in prudence shape and conform themselves And that our Saviour Christ himself God Almighty from all eternity so disposing it should be born under the government of the Roman Empire and submit to it too may it not more then probably be inferred that it was Gods secret intent and purpose if not to bring all Christians under subjection to those very Laws under which their head was born and lived yet at least by that signal act of his to recommend that policy and government to their imitation which might be a means to propagate the Gospel of Christ to send it forth to the whole world which that Empire seemed wholly to command St Austin l Lib. 18. de civit Dei ca. 22. makes the Universal rule of the Romans a special design of God for the good of mankind Per populum Romanum placuit Deo terrarum orbem debellare ut in unam societatem reipublicae legumque perductum longè lateque pacaret It was therefore saith he Gods pleasure that the Romans should conquer and command the whole earth that being brought under one communion of government and form of Laws it might the better enjoy peace both far and wide Videtur Dominus Monarchiam Romanorum conservasse propagasse at simul propagaretur honesta corum Politia reprimeretur incondita barbaries aliarum gentium sayes Baldwine m In his Prolegom Therefore was the Roman Empire by Gods permission so far extended that their good government might spread the more and the conversation of barbarous and wild Nations be made civil And indeed the continuance of it in such diversity of governments as Kings Consuls Tribunes Dictators Emperours cannot but shew a Divine power and a most prudent managery of affairs there in all vicissitudes For otherwise so many changes might in all likelihood have bred confusion and so consequently suppressed their rising to so great an Empire which as the last so it may be truly stiled the greatest that yet the world ever know or heard of Thus therefore the Roman Empire having climb'd up to such an height of Soveraignty as to be a spectacle an astonishment to all other Nations n Romanitrium pulcberrimarum virâ—utum justiâ—iae inquam fortitudinâ—â— as prudentiae laudibus imperatoriisque artibus cumulati populos omnes in sui admirationem converterum Bodin de rep lib. 5. ca. 6. and their government being generally proposed and look'd upon as a pattern and by some judgments designed as an example by God himself for other States to follow and be directed by What does it witness less then that the Laws of such a Nation and government must needs be singular and incomparable CHAP. II. The fundamentals of the Roman Civil Law were fetch'd from other States which did then excel others most in Policy and Government THe first grounds and foundations of the Civil Law were not of the Romans own composing but were fetch'd from other Nations and those the best governed that were in being for when they had cast off Kingly government and put themselves into the form of a Common wealth they would no longer endure the Laws that their Kings had made partly because they would not suffer any memory of their power to remaine and partly because the setting up of a new government would require necessarily the making also of new Laws which might correspond therewith Therefore since a present supply of Laws was necessary arbitrary rule being intolerable and that to frame a body of Laws themselves in a short time was impossible and not by a new-born State to be effected they appointed three eminent men to go to Athens and other Graecian Cities which had been famous for rule and administration of justice above others to fetch from thence the choicest Laws they could find At the return of those three men the Consuls that had bore the sway were deposed and both their Authority and Ensigne given unto ten men newly elected for the government of the State and were thence called Decemviri whose office it was to select the best of these Laws and by them precisely to rule and do justice to all the people The Laws that they chose and best approved of were written at first in ten Tables of Brass to which two Tables more being added afterwards they were all set up together in the open Market-place to be seen and read by the people which ever after were distinguished by the name of Leges 12 Tabularum The Laws of the 12 Tables To the direction of these Laws the Roman people were subject and conformed themselves for a long time and they were the onely Law they had Of the which Tully o Lib. 1. De Oraâ— gives this high testimony that this one book of these Laws both for usefulness and wisdome did transcend all the books that all the Philosophers of the world had written And although their engravement in brass could not preserve them from the injury of time nor rescue them from that universal change that altered all things in the Roman Empire whereby it came to pass that some reliques onely of them are now extant to the lamentation of all the learned Yet the Historians without any disagreeing tell us that the rise and beginning of all the Civil Law that we have in the books of Justinian came from those Laws Thus Livie Tacitus Sigonius and Rosinus And no less is delivered by Pomponius himself in his large Narrative of the beginning and progress of the Civil Law p l. 2. Dig. De orig jur and as much by Justinian himself q Parag. 10. Inst de ju nat gent. civ And hence it is that every where throughout the Body of the Civil Law frequent and common mention is made of the Laws of the 12 Tables and several of them entirely recited and some of them confirmed and enlarged others quite taken away
de rebus nauticis praescripta est judicetur quatenus ei nulla nostrarum legum adversatur z L. 9. Dig. De lege Rhod. That is I am the Lord of the world but the Law is the Empress of the Sea Let the Rhodian Law which has the regulating of Sea matters decide it so that none of our own Laws be opposite thereunto And generally it was their custome and usage that whensoever they conquered any Nation they did not onely give them Laws as conquerours use to do to those whom they subdue but I may say they received Laws from them too For what Laws practises or wayes of government they found there or any where else where they came that were laudable and useful in their State they carried them home and there put them in practise observing them rather with humility then rejecting them with disdain Majoribus nostris saith Salust as Baldwine quotes him in his Prolegomena speaking of the Romans superbia non obstabat quo minus aliena instituta si modò proba erant imitarentur Imitari quà m invidere bonis malebant quòd utique apud socios vel hostes idoneum videbatur cum summo studio domi exequebantur Our Ancestors were not so high minded as not to imitate such rules and customes of other Nations as they found to be good chusing rather to tread in the steps of vertuous and well disposed people then to envy them Therefore what either their allies or enemies afforded that was useful and fitting they greedily embraced and practised it in their own State And if Salust may be thought partial because a Roman writer let Polybius speak that was a Graecian They were always so wise saith he as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to take and apply the best customes of other Nations to their own use Athenaeus saith the same and declares it at large how from the beginning and first founding of the Common-wealth they took from others the best points of policy and government And so in these Laws of ours we have what all the wisest and noblest men in that Common-wealth which was the most flourishing and potent that ever was in the world could of themselves by their wisdome and reason devise or could learn from other States in about a thousand years for about so many years it was from the time of the Decemvirate unto Justinians death Tantae molis erat Romanas condere leges From this example of the Romans who admitted so freely other Laws besides their own and would rather send about to borrow Laws from others then want such as were necessary and convenient for themselves we may learn to esteem it neither shameful nor inconvenient for the people of this Nation to give such an admittance to the Roman Civil Law here as the Romans did in their State to the Laws of other Nations For it must needs draw after it much benefit and no prejudice if it be done with these cautions First that it be a free and a voluntary act of our own and not imposed upon us by a forreign power Secondly that it be admitted meerly to supply the defects of our own Laws and to have a resolving power in such cases onely where our own Laws have made no determination at all Thirdly so little to be made use of in opposition to our own municipal Law as not so much as to be compared with it Fourthly that it be of greatest force in all cases where there is greatest need of equity and a good conscience whereof there is more to be found in that Law then in any other Law of Man Fifthly that it may order and determine all matters transacted and arising upon the Sea or contracted and done in forreign parts to which the Laws of the Land are most incongruous and less satisfactory to those whom they concern being chiefly strangers and of another Nation Lastly that if at any time the use and exercise thereof should be stretch'd beyond the bounds that are allowed it it should be penall but be check'd by such equal and indifferent Umpires as are parties in neither of both professions For where an incrochment is pretended to be made by either Law upon the other neither seems to be competent enough to judge the difference or to condemn the other Under these cautions to admit the use of the Civil Law into this Nation that in the doing of justice where our own Laws fail we may be sure to be supplied by another is no more then what the Romans themselves a renowned and wise people did by the Laws of other Nations and what other Nations do at this day by the Civil Law it self which they do practise and use as frequently as they do their own CHAP. III. That time and intervenience of fatal Accidents that has swept away so many States together with all their Laws and has quite abolished the Romans State it self has not yet been of force to abolish the Roman Civil Law but that it is extant still BEsides that this Law was at first derived from such Nations as in their time were renowned for Policy and Wisdome and was a chief means to convey the Romans to their greatness this also may be said thereof that can be said of no other humane Law besides That though it has been never seen that any Law has lasted longer then the State it self for whch it was first ordained but both have been buried in the same sepulchre together yet this Law is in being to this very day after the Roman State it self has so long laine intombed in its own ashes Jus Justiniani praescriptum libris non Civitatis tantùm est sed Gentium naturae aptatum sic est ad naturam universam ut imperio extincto ipsum jus diu sepultum surrexerit tamen in omnes se effuderit gentes humanas Ergo Principibus stat etst est privatis conditum à Justiniano sayes Albericus Gentilis a Lib. 1. De ju Bell. ca. 3. The Law that is set down in the books of Justinian is not the Law of one City onely but is the Law of Nature and Nations and is so throughout fitted to very Nature it self that when the Roman Empire was quite extinct yet the Law of the Empire after it had lain long as it were buried sprung up again and spread it self into all Nations Therefore now it is become a standing Law to Princes although made at first by Justinian for the use of private men We know for certain that at the first erecting of Commonweals when some certain kind of regiment was once approved nothing was then further thought upon for the manner of governing but all permitted unto their wisdome and discretion which were to rule the Princes word beck and rule serving instead of all Laws who both in time of peace and war sent out their edicts from time to time as the present occasion required all depending upon their full and absolute
frequently happen and intermix with the affaires of men yet to supply them with a direct peculiar Law or any other express and determinate rule to settle them is an enterprize that was never undertaken by the wisest Law-givers that have been s Legislator non potest omnia declarare quia res in quibus versatur sunt propemodùm infinitae quia in hac vita mortali nihil est perfectum propter ingenii imbecillitatem non possumus cuncta rimari Mantie de tacit ambig convent lib. 1. Tit. 15. nu 19. nor can possibly be effected by any society of men whatsoever For it cannot be understood how such things can be the subject of any established Law or rule that cannot be foreseen neither what nor when nor how they will come to pass Hae varietates infinitae nullis legibus nullis tabulis nullis Pandectis nulla librorum quaentumvis immensa mole ac multitudine capiuntur sayes Bodinus t De rcp lib. 6. ca. 6. These infinite varieties can in no Laws no Tables no Pandects no Books be they never so many or so voluminous be all of them contained or comprehended And again u Ibidem Non magis legibus singula contineri possunt quà m infinitum quiddam immensum ab eo quod finibus exiguis ac veluti cancellis angustissimis conclusum est sayes the same Bodinus No easier is it to collect all the several cases into one book of Laws then to comprehend that which is in greatness infinite in that which lies in a most narrow compass and is as it were in straitest bounds shut up And yet since there is a necessity of setling such various and so unlike contingencies some rational way or rule must be found out whereby to compose and settle them left they should be made subject to meer will and pleasure or in default of better means men interested therein should be left to right themselves by forcible and violent wayes It is no less evident and manifest that whilest we have to deal with forreign States as ordinarily we do in the way of trade and commerce and too frequently in the way of War too questions and controversies without number do arise some whereof do concern reflect upon the States themselves as being of publick concernment others be of a more private nature and do concern the interest of some subjects onely But when such controversies of either kind do happen is there any Municipal Law capable to decide them should we not as much disdain to be judg'd by the Law of France or Spain when we have to do with them as they would to be over-ruled by ours when they have to do with us Nay should we not abandon the society of such a Nation that should tie us to their own Laws in matters that are transacted and done out of their proper Territorie as happily upon the open Sea or in the Territory of another Prince and people Of what force or power can a Law be to those who are not subject to the authority of those that make it w Ubi cessat jurisdictio statuentium statuti dispositio non obtinet l. fin Dig. de jurisd omn. Iudic. l. r. Co. De susp fut And yet when we fall into their hands and controversies are moved against us in their Tribunals we must inevitably stand to and abide their justice and the like they owe to ours But then right must be done by such rules and principles as both sides may be fully satisfied in the equity of them Here therefore does appear the true use of the Civil Law and the ground whereupon all Nations have admitted it into their Courts and acts of justice For although it cannot be said that there is no case which is not contained in the Roman Law Neque leges neque senatusconsulta ita scribi possunt ut omnes casus qui quandoque inciderint comprehendantur sed sufficit ea quae plerunque accidunt contineri sayes the Civil Law it self x L. 10. Dig. De legib Neither Laws nor results of Council can be so sufficiently framed as to provide for all cases that shall happen hereafter but it may suffice if such cases be provided for as in contingency are most familiar and common yet such is the copiousness of that Law beyond any that has yet been and such a wonderful enlargement has been made thereof by the professours of it in all ages ever since as cases and accidents of all sorts and natures and in all Countreys have happened from time to time from study argument and the several resolutions of forreign Courts applied thereunto and all upon the reason and equity of that Law which was written by the Romans that now it may be justly thought no case can fall out or accident arise which the learning of that profession thus polished and perfected either in express termes or by parity of reason will not determine Wherefore it is upon just reason and likewise upon necessity too that so many Nations have recourse to the wisdome and fulness of that Law thus amplified as oft as their own particular constitutions fail them And although there are a sort of men in the world who indeed have some good natural abilities in them as a ready apprehension a quick wit a holding memory and a smooth elocution but were never brought up either in Law or any learning yet they do much presume upon that ordinary and common understanding which they have that they think or at least they would have the World believe so whereby they may be thought worthy of the best places of Judicature that they can by the strength of their poor illiterate reason resolve all questions and doubts of Law whatsoever whether they arise at Land or at Sea be they of publick concernment or of private entrenching upon our own Law or touching upon the Law of Nations be the case between Prince and people subject and stranger one State and another clear in Law or ambiguous setled by express constitution or left undecided yet their capacity as they would have it conceived without any such help as the Civil Law does suffice for all And yet when these presumptuous and high conceited men do sit to judge and administer right on such matters they quickly find what they would not before believe or at least not have believed by others that their understanding is too narrow to comprehend such difficult things and their insufficiency to be too great to determine them and are therefore driven to consult with the learned of that profession to whose skill it does belong not without some shame to themselves And it were to be wished that the onely effect of such mens ambition and confidence might rest there and that it did no greater mischief But it commonly falls out to be fatal to the interest of many which is taken away or prejudiced by their errour ignorance and sometime States also
were from himself his reason one chief part of his essence being taken away Besides how would sins and trespasses against nature multiply How common would natural injustice be and what loud complaints thereof would arise whereby not onely great confusion would break in and the peace of the Common-wealth be disturbed but the common society of Nations would in time also cease The Civil Law then as it is natural essential or rational cannot be repealed Secondly let it be spoken to its praise also that the Civil Law is so far from being made useless to a Nation where the whole state of Government has been subverted as that it is thereby become more useful and necessary It is certain that the Roman people themselves thought it so when they dispatcht certain chosen men on purpose to fetch it from Athens for their use and service after they had driven out their Kings suppressed their Laws and erected a popular government in place of the Regal The like opinion possesseth now adayes the Princes and potentates of the greatest part of Europe as is clearly demonstrated by their admitting the learning and profession thereof into their several Territories that it may be at hand to decide and resolve such cases and questions of right that happen amongst their people wherein a Law of their own is wanting Nay if any such difference or controversie arises between the Princes themselves or between Nation and Nation which is most frequent and common because there never was nor can be by any authority a positive Law made to bind them they debate and argue such differences by arguments fetcht from the Civil Law and allow of the reason thereof as a most competent and equal rule to decide them by And if this supply of justice by the learning and knowledge of the Civil Law were taken away too what ignorance uncertainty arbitrariness injustice and oppression would the people of the world lie under and what hazards of detriment or ruine would their rights fortunes and estates be exposed unto for where all manner of Law is wanting in a Common-weale to do the acts of justice and ministration of right by it must be granted that the light of natural reason must of necessity be the Law since that was the onely means which was given to man at first to judge and discern by of humane things before any Law was given But if that should depend upon the wandring fancies and imaginations of men onely and not be illuminated by some right knowledge and learning under how many several shapes and forms must it needs appear when the apprehensions and conceptions of men through the variety of natural gifts education age knowledge and experience are as diffeâ—ing as their visages and persons be And where would the certainty constancy and unity of justice be when the Judges of the same Tribunal furnished with bare natural endowments onely would differ from and oppose one another when one Tribunal shall judge directly opposite to another upon one and the same fact or which is a levity shameful and unbeseeming when the Judges of the same Court in cases of like nature shall judge and order diversly from that which they had done before z Apud Romanos prius quà m sententiam ferrent praeâ—o clara vâ—ce judices bortabatur Ne se paterentur sui dissimiles esse Bodin de rep lib. 6. ca. 6. Under which uncertainty and discordance how shall people know what to expect when their rights come into question What can any Counsel advise Or what caution or advisedness can be used by men to put themselves or their affairs out of jeopardy when they are never certain of that justice to which they should conform themselves and be secure By the conversion and change of State therefore though the Municipal Law goes to wrack as commonly such great frames are seldome medled withal but all falls a pieces the Civil Law is not the less but rather the more necessary to be retained still First because it hath no coherence or conglutination with the particular customes or government either Regal or Episcopal as the Municipal Law hath and so the one may fall and yet the other stand Secondly because the Civil Law is the proper Art and Science of that right natural reason which for want of other rules in the doing of justice we have said must necessarily be the common standard to try all things by The principles of which Art and Science are not weak or superficial but strong and solid not various or repugnant but certain and agreeing not harsh and rigorous but tender compassionate and equitable not partial to any but alike just to all not obscure and perplexed but clear and perspicuous in the eyes of judicious and right discerning men though above the reach of the vulgar Thirdly because it carries the weight of undeniable authority along with it the decisions thereof being not the sudden fancies and raw conceits of a few men nor do they rest upon the bare Reports of any how learned in the Law soever but they are the clear evidence of Reason and the prudent advisements and mature deliberations of a whole State excelling in wisdome mighty in greatness and famous in renown And howsoever it was at first ordained to be a Law for a particular Nation to be ruled by yet has it since been made universal in use throughout Europe and by the general consent of all the learned sprung up to an Art or Science to teach natural justice and equity to all mankind Fourthly because the reason of the Civil Law does not onely rightly inform and teach the understanding what is just and right but the certainty thereof does keep the judgment steddy and unexposed to those fits of variation and instability which those that are directed by no certain principles are subject to for it is not easie for them to vary who have any fixed rules to guide them So that if this Law were duly applied by those onely that are learned in it since it is not possible to be done by any other sort of men neither ignorance nor errour nor arbitrariness nor uncertainty of justice nor the consequences thereof wrong injustice or oppression would be found at least they would not be so frequent and common as where the guidance and light of such a Law is wanting But besides these foregoing reasons there are yet further and much stronger reasons to be added why those matters and causes which before the present change of government did belong to the trial and determination of the Civil Law should be kept within the same cognisance still these alterations notwithstanding First because for many hundreds of years that and no other has been the standing approved and practised Law in those matters and therefore in that regard to be preferred before any new Law though better if such a one could possibly be found Secondly because if it should be laid aside it would be so impossible to
it follows that because the old Law that is full of Jewish rights and ceremonies is joyned to the Gospel and that we read both together we must therefore presently all become Jews And thus having satisfied all scruples that are usually made against the continuing the Civil Law within this Nation I shall but shut up all in this conclusion That seing the Roman State out of their wonderful wisdome and great experience in government and the several affairs of the World did devise a Law not onely proper for themselves but so mainly useful to other Nations also and that the industry of the learned working upon that foundation has by method order Rules expositions illustrations and treatises of all kinds reduced it to a perfect and compleat Art and Science of Law whereby the right skill and way of doing the purest and most natural justice whatsoever the case be may be taught and known And when it has from thence been ingrafted into our own and the other Universities of Europe and made one of the three chief Sciences there to which the rest of the Arts serve as it were as handmaids and servants and all for the directing of men and Nations how they should deal honestly and uprightly with one another seeing also that our very Martial affairs cannot proceed wel nor be rightly regulated without it and that those Nations whom we have most dealings and intercourse withall and to whom we should despise to be any whit inferiour do not onely keep it but also have no other profession of Law besides it and do think their own private Laws to be very insufficient and lame without it and that divers matters and causes amongst our selves will remain without any Law at all except the Civil Law be kept to order them as it did before Lastly when the Civil Law comes to help and assist and not to infringe or take away from the Municipal Law at all If we shall now abandon it and cast it out of our coasts or which is all 〈◊〉 if we shall reward and encourage it so slenderly that no man will either think it worth his pains to study or his cost to take any degree in it to which pass it is most visibly come already I say if we shall still thus neglect or despise it either way we shall not onely set light by the Policy and Wisdome of the Romans which all other people are studious to imitate and come as near as possibly they can but we shall also deprive our selves of one excellent means to improve our knowledge and reason by our justice without it being guided by illiterate and irrational principles will be less satisfactory to the people our skill in the discipline of War and in the Laws of Armes will be very defective the very harmony of learning that has so long flourished amongst us will be dissolved when so considerable a part as the Civil Law is broken off from it other Nations will grow too wise and subtil for us and will turn and winde us as they lift and our justice at home will be lamed not being competent enough for the matters we deal in The consequence of all which will be mischief at home and dishonour abroad which all good Patriots and lovers of their Countrey will lament to see An Index of the principal matters contained in this Book A ARts and Sciences have their beginning growing falling and rising again fol. 50 Argument drawn from like case is unsufficient fol. 41 Admiralty Court proper to be managed by Civilians onely 148 Athens was the place from whence the Civil Law first came 29 103 B Business of other men if I expend any money or care upon though without their privity the Civil Law will see me satisfied 90 Books of the Roman Laws when and where found after that learning had lain neglected a long time 122 Barbarisme will be let in where the Civil Law is expell'd 134 Books of the Roman Laws that were before Justinians Collection after that came forth were quite lost 121 C Children if no disposition at all were made by the father did equally divide the whole estate between them by the Civil Law fol. 15. Enjoyned so to reverence their parents that they could not sue them without leave nor be witnesses against them nor marry without their consent nor charge them with any criminal act 11 Collusion odious by the Civil Law and makes the act void 13 The Civil Law agreeable not onely to the first principles of nature but also to others never so much remote fol. 21. made to rule the mightiest Empire that ever was and since propagated to other Nations 29. and how it came so 30. it teaches men to be vertuous and innocent 48. though sometimes in obscurity yet never to be quite lost 50. it handles publick matters very sparingly 52. custome must agree with reason 36. customes are more acceptable to the people then Laws are ibid. Cases commonly all differ from one another 41 The Civil Law containes the whole reason of man both private politick and that of Nations 53 63. it runs more in a convincing then commanding style 65. most conformable to the Divine and eternal Law 66. grown to be the common authority to justifie or condemn humane actions 67. it avoids niceties and follows the true intent onely 67. it will not allow of some things because they are not worthy nor honourable though otherwise lawful 70. it is full of clemency mildness 71. it prefers equity before rigour 78. all persons of what condition soever may read their duties in it 93. The fundamentals thereof fetcht from other states the best governed that then were 103. 29 Civil Law how it may be admitted into England without any inconvenience 108 Civil Law almost destroyed when the Roman Empire was invaded by barbarous people 114. 116. the first books thereof being lost did much hurt and injury to those that we have now being but an extract of them 121 many of the books thereof to an infinite number perished and were lost by the sad fates that befel Rome Berytus and Constantinople 122. yet under Lotharius the Emperour is was again restored ib. and afterwards grew so great that other learning was neglected and all did study that onely 123. The Edicts of Princes how severe soever were not able to suppress it 124. no where so much in use as in Spain and France though they have both made sharpe decrees against it 130. How it came into that forme order and method which now we set it in 167. what a multitude of writers there are in this Law 170 Civil Law is not proper to govern every State by 140. 51 Cities three above all others most famous for the study of the Civil Law Rome Berytus Constantinople 122 Civil Law has not of it self any authoritative force to binde as a Law in any Nation but is and must be of force every where as it contains true and solid reason to
the Canon Law the better 124. yet be does make use of the Civil Law 163 Parents were bound to leave a cerâ—â—in part of their estate to their children 9. 141 Penalties added to Laws argue the power but not the justness of them 158 Punishments for the same offence may justly be greater in one place then in anothes 26 R Reason was given to be mans guide in all his actions 2. it is a beame of the divine light 5. the principles thereof all of them not to be discerned by all 21. is sometimes covered with falshood and is much darkened by other natural corruptions 23. not a more deceitful thing then it 24. then most evident when generally allow'd by all 30. not so requisite in publick Laws as in private 33. private politick and that of Nations to be gathered out of the Civil Law 53 Romes greatness and flourishing does demonstrate the excellency of the Laws wherewith it was governed 98 Rome was as it were the City of the whole World 98 Romes greatness to be imputed rather to their Laws then Arms. 99 Romans very greedy of honour in pursuit whereof they did many gallant acts and especially made such good Laws as they did 100 Romes universal rule a special design of God for the good of man which was the cause that Christ was born under that government 102 Romans when they conquered a nation did not disdain to take such Laws from them as they found to be very honest and rational 107 Roman Emperours some favourable to the Civil Law others bitter enemies against it and the professours of it 112 Robbery in the High way or at Sea or with Burglary punished by death at Civil Law 142 Roman antiquities would have been better known if the old books of the Roman Laws had been preserved 121 Reason vulgar and ordinary not suffient to judge of legal matters 147. 154 Romans through their universal sovereignty dealt in greater variety of business then any Nation 52. 155 Rome came under several formes of government and yet some part of the Civil Law was under all of them 157 Ransome paid for another though without his directions is recoverable from him 91 Roman Laws do onely carry away the name of The Civil Law 166 S Society Civil what the benefits thereof be 56 Succession to intestates goods how regulated by the Civil Law 84 Stoppage is an allowed way of payment at Civil Law 89 Ship or goods when saved by the pains or loss of another the Law will allow salvage or other recompence for it 90 Slavery and servitude out of use amongst Christians 143 Sea matters to be judg'd and tried by Civilians onely 148 T Torture as it is allowed by Civil Law justified 72 Theft by Civil Law punished by pecuniary satisfaction 142 V Vniversities of England why they practise the Civil Law 161 Vniversities of the World teach no other nor give degrees in any other Law but the Civil Law 152. 153. 172. W Wrecks by the Civil Law restored to the owners and go not to the King 21. ERRATA The Reader is first desired to take notice that the Printer by the absence of the Author and being not acquainted with the quotations of Civil Law has from fol. 4. to fol. 23. in divers places in the Margent erroneously set down the books for the Law printing lib. instead of l. which stands for lege When therefore the Law is quoted out of the Digests or Code within that compass instead of lib. read l. as in fol. 4. in the Margent liâ—t l. for lib. 1. r. l. 1. Fol. 4. in the marg litt r. for Minfinus r. Minsing fol. 19. lin 24. rigorem r. vigorem l. 33. for is not so r. is not to be fol. 20. l. 22. for rules r. rulers fol. 71. in the margent litt r. for lib. 57. r. l. 57. fol. 75. l. 10. for need not r. I need not fol. 158. l. 20. for they r. it fol. 175. l. 33. for natural r. unnatural fol. 181. l. 16. for as r. us The End Memoranda TOUCHING THE OATH Ex officio Pretended Self-Accusation and Canonical Purgation Together with some NOTES about the making of some New and alteration and explanation of some Old LAWS All most humbly submitted to the consideration of this PARLIAMENT By EDW. LAKE Philo-Monarcho-phil Justitia Reip. Basis LONDON Printed for R. Royston Bookseller to the Kings most Excellent Majesty at the Angel in Ivy-Lane 1662. To the Right Honourable WILLIAM EARL of STRAFFORD Viscount Wentworth Baron Wentworth of Wentworth Woodhouse Newmarch Oversley and Rabye Knight of the most Honourable Order of the GARTER MY LORD SUch hath been the power of Custom for many Ages that the Authors not onely of just Volumes but of small Treatises too have ever been desirous I know not whether I may say Ambitious to dedicate them to some person of eminent quality and condition as it were Clients to their Patrons for the protecting and crediting them Hereby the Authors have oftentimes gained their desires and the Patrons especially when the excellency of such Books did deservedly acquire it addition of honour and same and also propagated the continuance thereof to all posterity Numerous instances hereof might be given but Mecaenas may be instar omnium which name of a Nobleman hath in a manner monopolized all noble Patrons as Patron 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 My Lord I am far from having any such opinion of this small Treatise indeed not deserving that name being in great part but an epitomized Collection and the rest brief Memoranda's or Notes rather to excite others to proceed upon that Subject then to rest on this though if by this or any other Act of mine any accesse of Honour could accrue to your Lordship I hold my self justly obliged humbly to present and tender it But my Lord the full scope of my intention in this Model is to the best of my Judgment which I alwayes submit to better and of my skill and power to contribute something tending to the further happinesse and continuance of Truth and Peace with Justice and Honour in this Church and State now by Gods blessing to whom be all Honour and Praise ex post-liminio as it were freed from Slavery and Tyrannical Oppression and restored to a capacity of their pristine Beauty and Splendour by the most happy Restauration of our most Gracious SOVERAIGN whom God preserve This I am sure as my Heart prompts me to speak is my sole intention which aymes onely at the advancement of the Publick Good and is not tainted with any drachm of private Interest And my Lord knowing you do Patrizare that most honoured Father of yours whose Memory must never perish whose Losse this Church and State have too sadly felt but Quis talia fando c. and that I may say as Tertullian de Resurrectione carnis sayes of the Phoenix raised out of the ashes of his dead Sire Alter idem Justitiae Honoris cultor sincerus maximè as
Ministers are by Act of Parliament severely commanded to do it BY the late Act before mentioned where the Doubt so it is called there about the Coercive power in Ecclesiastical Courts is clear'd and taken away One Proviso is That that Act nor any thing therein conteined shall extend or be construed to extend to give unto any Archbishop or Bishop or any other Spiritual or Ecclesiastical Judge c. any power or authority to exercise c. If any be peccant that way it ought to be amended Another Proviso forbids any Archbishop Bishop c. to tender or administer unto any person the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment This being now forbidden by Act of Parliament every Subject ought to give obedience therein But some now insulting and upbraiding the Ecclesiastical Courts that all this while they have oppressed the Subject with that proceeding which the Parliament hath taken away renewing the old cry in Queen Elizabeths time and ever since against such proceedings which never till now I alwayes except what was done in the late times of usurped government were legally prohibited Though I am far from questioning the reasons whereupon that Act passed but do humbly submit to it both in word and practice yet I hope it will be allowed to make some defence against such persons as so tax such proceedings before the passing of this Act. And herein I shall follow that most able Civilian Richard Cosin Doctor of the Laws and Dean of the Arches in that his Apology for sundry proceedings by Jurisdiction Ecclesiastical c. Mr. Cambden as before mentions him with honour as surely he well deserv'd and that work of his if nothing else evinces it Mr. Swinburn in that Work of his of Last Wills and Testaments printed at London for the Company of Stationers 1611. in the first part sect 6. numb 8. fol. 17. writes thus of him and of that Work of his that Apology I find saith he written by that learned and no less religious man Doctor Cosins at I take it in that worthy Work entituled An Apology for sundry proceedings by Jurisdiction Ecclesiastical c. and so he goes on Upon this subject he hath written so fully that I believe little can be added to it and if any should go about it excepting such additions as well may be added by reason of some emergencies since the time he wrote and some other additions and explications not derogatory from him they would be forced very much to plough with his Heyfer which would but look too much like a Plagiary I could wish the book were reprinted and haply it will be so which may serve for Topicks to this subject For as all the Poets after Homer are said to drink of his Fountain according to that picture or statue of his that denotes as much with that Inscription Ridet anhelantem post se vestigia turbam Even so must I conceive all do from Doctor Cosin that shall write upon this subject I was upon Epitomizing that Apology of his and had made some progress therein but upon second thoughts desisted thinking it better to refer the Reader to him rather then to adventure to abbreviate him and thereby perhaps wrong him an offence that too many Epitomizers are guilty of therefore I say I shall onely make use of some Notes as confessed arrows out of his quiver and sippe of some others elsewhere and point the Reader to his full stream where any that list may drink their fill Upon these words in the late Act Provided that this Act. nor anything therein contained shall extend or be construed to extend or give unto any Archbishop Bishop c. any power or authority to exercise or execute c. any jurisdiction which they might not have done before the year of our Lord 1639. or to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters or affairs nor to confirm the Canons made in the year 1640. I say upon these words some are ready mistaking questionless the words and meaning of that Act to renew that old exploded Opinion or rather groundless Fancy That a several Royal assent to the executing of every particular Canon is required Hereto Doctor Cosin answers That admitting This were true then all the other opinions of those that oppugn the ordinary Jurisdiction Ecclesiastical stand in no stead and might be spared because this would cut off all at once For none that exercise ordinary Jurisdiction Ecclesiastical have it in particularity which by the oppugners seems to be meant otherwise then by permission of Law to every of their proceedings and impossible were it by reason of the infinity of it and troublesomness to procure such particular assent to the execution of every Canon His Majesties Delegates when Appeals are made to His Majesty in Chancery would signifie nothing could not exercise the power to them delegated by reason of the want of such particular assent and it is a gross absurdity to grant as even the Oppugners and Innovators do That Testamentary and Matrimonial causes are of Ecclesiastical cognizance to say nothing of the rest of Ecclesiastical causes and yet cannot by reason of this want be dispatched nor can be dealt in by any other authority according to any Law in force This would speak a defect in the publick Government that the Subject should have a right but no likely or ready mean to come by it and great offences by Law punishable and yet no man sufficiently authorized to execute these Laws Since the abrogation of Papal pretended Supremacy when the ancient rights of the Kings of England of being Supreme Governors over all persons within their Dominions as well in all spiritual or Ecclesiastical things or causes as Temporal and that no forreign Prince Person Prelate State or Potentate hath or ought to have any jurisdiction power superiority preeminence or authority Ecclesiastical or Spiritual within this Realm and so forth as in the Act and the Oath Since these rights were as it were ex postliminio restored and declared to have been as they ever ought to have been in the Kings of England many Laws have been made in several Parliaments for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution thereof and some of the Ecclesiastical Laws were enlarged altered and explained * 25 H. 8.19 The Statutes for Delegates upon Appeals †27 H 8 130. 32 H 8.7 Not long after two Statues for assistance of ordinary Ecclesiastical Jurisdiction and for the speedier recovery of Tithes in Courts Ecclesiastical * 34 35 H. 8 19. The like for the recovery of Pensions Procurations c. †1 Ed. 6. c. 2. In the time of Edw. 6.
at Geneva and other places pretending strict Reformation 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 therefore implicitly at least it is allowed and approved Rati habitio mandato aequiparatur 't is 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 objeetions 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 I humbly conceive salvo meliore judicio he fully and clearly evinces it that the law and practice thereof was just to tender and administer the Oat◠ex officio or at the instance of a party for the finding ou◠or Simony Adultery and other crimes and deeds of darkness difficidimae probationis so that evil may be removed from the Land 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 ministred 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 Job 2.4 Skin for skin or rather as some learned in the Hebrew would have it 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 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 Mat. 4 6. The accuser of his brethren cited Scripture to our Saviour sayes he 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 respondendi imponitur per cum 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 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
the Foundation 2 H. 5. c. 1. 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 Ordinaries may give the Oath of Supremacy to a Clerk within his Jurisdiction 5 Eliz c. r. In this Act of Perjury the Laws Ecclesiastical have the powers reserved to proceed as before 5 Eliz. c. 9. 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. The other besides a consultation conteins a commandment to the Ordinary to take full information Ibid. fol. by way of Inquisition and other means touching the value of Tithes Ibid. fol. 51. b. 6. An Ordinary proceeded against a Parishioner ex ' officio as for a crime for Tithes deteined by him Ibid. fol. 49. a. 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 Let no man Constitut Provinc de haereticis c. nullus 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 and Quintilius German in Henry the Eighths time A Treatise touching Constitut Provinc and Legatine c. 23. printed by Tho. Godfrey 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 CHAP. IX That Oaths administred to parties toâ—ching matters damageable criminal and penal to themselves are urged are required by Temporal Courts and by the Laws of the Realm 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 We read of Trebatius an ancient civil Lawyer Cicer famil ep often mentioned in the Pandects who lived in Julius Caesars time before our Saviours birth many years did remain at Samarobrina in this Isle of Britain and afterwards that famous Lawyer Forcatulus 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 (a) 17 E 2. Prerog Reg. c. 4. The Kings Widows sworn not to marry without the Kings License (b) 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
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 CHAP. X. The inconvenience and hurt that probably may follow by the forbidding the ministring of an Oath Ex officio or any other Oath whereby such person to whom the same is tendered or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment Praise of the Civil Laws Civilians first and last and greatest Sufferers Amity 'twixt both Robes His Majesties and the Lord Chancellors favours to Civilians 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 Kingdome 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 Salomon giving charge to kill Joab sayes 1 Kings 1.2 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 Aristot Rhetor. Theodor. c. 14. The Heathen could say Justicia est Reipublicae basis Aristotle could say that punishment is a remedy to be used against faults and Cassiodor Remedium est contra peccatum accclerata 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) Aug. in ep Joan. tract 7. Charitas non est sed languor ubi mali mores digna poena non castigantur (b) Idem ep 50. ad Bonifac. c. error dist 83. Error cui non resistitur approbatur (c) Cassiod l. 3. Uac epist 14. Malum cum perseveret augetur (d) C. cum Tanto de consu tudine Tanto sunt graviora peccata quanto diutiùs animam detinent illigatam Tully sayes (e) Cicer. pro Mâ—lone Impunitatis spes magna peccandi illecebra (f) C. sed And. dist 45. Quae est ista misericordia quae bonitas uni parcere omnes in discrimen adducere The very Light of Nature did teach even Heathen men thus (g) F. ad l. Aquil l. Ita vulnerat Interest Reipublicae delicta puniri and (h) H. de fide pur l. 7. sect final Poenas ob maleficia 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 (i) 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 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 〈◊〉 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 Volenti non fit injuria neque dolus Reg. juris 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 fame course shall be
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 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 Cic. famil epist in the time of Julius Caesar Trebatius 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 Papinianus 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 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 Church-men 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 causes of Defamation Matrimonial causes Tithes if not Legacies also and several other branches of Ecclesiastical Jurisdiction were all along dispatched at Common Law or Chancery contrary to all Law and equity Probate of Wills and granting of Letters of Administration with all the connexes and incidents thereunto belonging and from thence arising were by Commission from that usurping Power committed to a few persons of their own gang at London so that the Subjects from all parts of the Kingdom were to prove the Wills of the dead and take Administration of Intestates Goods passe their Accompts and act the rest concerning them there before them at London The Executors and Administrators must either come up thither personally to them to take their oaths or else have Commissions down into their Countries to do it and the charges to the Subject for such Probate of Wills Letters of Administration and the rest whether they went up themselves to London to dispatch them or more especially if they sent up by others thither to have them done as most commonly they did and not scare one in forty did otherwise and it was the cheapest way probably for them so to do in regard of the charges to send up by others that also had other business of their own there Yet I say by these means and the great Fees taken the charges for proving every Will taking Letters of Administration and the rest came ordinarily to about six times sometimes much more as much as was taken and due before these troublesom irregular times by the Ecclesiastical Judges and Officers to whom of right they appertained that is the Fees and charges usually came to 50 s. or 3 l. or 4. l. or 5. l. and sometimes to 6 l. or more Had such a Grievance and so general throughout the Kingdom reigned in the time of Kingship when faithful and peaceable men acted according to the known Laws of the Land surely the fall of Nilus to the Cadupes would not have made such a noise as our factious Stentors would have then bellowed out And too much of the grievance still remains such Wills Inventories Bonds so Administration with the dependancies thereupon remaining still at London whether the Subject when they have occasion to see or use any of them or sue for any thing concerning them must either personally repair or send for them or sue there which is well hoped will by this happy Parliament be remedied and a course taken that they may be transmitted into every County whence they came for the Subjects ease and that they there may sue upon occasion for any Legacy or other matter concerning them Should it be demanded at whose charge this should be done the dictate of Reason I humbly conceive answers it qui commodum habet idem onus habere debet And thus for no small number of years
our Places our Livelyhoods were unjustly taken from us onely for our Loyalty whilest others that did it gloried in their shame took our bread out of our mouths and did eat whilest we fasted and well nigh starved and yet such is the unsatiablenesse and unreasonablenesse of some of our causelesse persecutors that they could well be content we should still continue in the same oppressed and miserable condition And when His Majesty was happily restored for which all thanks praise and glory be ever rendred to the God of miracles and mercy the Civilians as they were as is before touched the first and earliest sufferers so were the last not a small time after the most reverend Bishops and especially after the rest of the Loyal Clergy were restored that were re-admitted to their places and Offices and when that was done still for a considerable time they were but precarious and of little use or value as before till the doubt touching coercive power was by Parliament taken away which was not till the later end of Summer 1661. and then with the Proviso against the Oath Ex officio and Purgation which not a little diminishes these Offices besides upon reasons known the forbearance of the full execution of such Offices as yet so far as by Law they might execute them is considerable Some Civilians who in contemplation of their natural duty and of their Oaths of Allegeance and Supremacy served His majesty in his wars against his then rebellious Subjects thereby lost all their Fortunes both real and personal that their enemies could find and certainly never were more sedulous and rigid scrutators or more rapacious Harpies that would not let scarce any thing passe their clutches Non fuit Autolyci tam piceata manus And such suffering Civilians both so in their Livelyhoods their quotidianum and their persons and liberties every often humbly hoped when a time of re-settlement should come that they should have been looked upon as well as others of the same profession that sate still underwent none of these dangers or hazards nor suffered perhaps any thing or but little in their Estates or otherwise especially in comparison with the others or as well as others that had some competency by reason of practice under the usurped Powers as to take and execute Offices under them of great benefit and I had almost said that way if not otherwise also immediately acted against His Majesty and his Authority contrary to their natural duty and Oaths of Allegeance and Supremacy To plead before the usurping Powers even after the end of the war it was not at least for a long time permitted to those Civilians of the Kings party especially those that had served him in his wars here For my own part though I could never satisfie my Conscience so far as to plead before any of the usurped powers not so far to acknowledge their power though some years before His Majesties happy restauration I was both here and in Ireland invited and desired to do it yet I would not do it nor ever did that way or any other give any acknowledgment of their power or touch any of their Pitch more then by a forced acquiescence and sitting quiet and still when I was constrained so to do Yet I say I am far from censuring any of these worthy and learned persons of either Robe that did either agere or defendere before that usurping power by way of pleading I would not be mis-understood as to be thought so much as to think amisse of the noble Profession or Professors at Common Law both which I love and honour and do very well known 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 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 Profession and Professors of the common Law could then expect little more favour then Polyphemus promised Vlysses 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 about 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 there 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 love thy neighbour as thy self But if ye bite and devour one another take heed ye be not consumed one of another For the Civilians if they have many enemies and but few friends as was said by one that
not be good just and lawful and after the same Matrimony solemnized and consummate by carnal knowledge and also sometime fruit of children ensued of the same Marriage upon pretence of a former contract made and not consummate by carnal copulation for proof whereof two witnesses by that Law were onely required been divorced and separate contrary to Gods Law and so the true Matrimony both solemnized â—n the face of the Church and consummate with bodily knowledge and confirmed also with the fruit of children had between them clearly frustrate and dissolved Farther also by reason of other prohibitions then Gods Law admitteth for their lucre by that Court invented the dispensations whereof they alwayes reserved to themselves as in kindred or affinity between Cousin-germans and so to the fourth and fourth degree carnal knowledge of any of the same kin or affinity before in such outward degrées which else were lawful and be not prohibited by Gods Law and all because they would get money by it and kéep a reputation of their usurped jurisdiction whereby not onely much discord betwéen lawful married persons hath contrary to Gods Ordinance arisen much debate and suit at the Law with wrongful veration and great damage of the innocent party hath béen procured and many just marriages brought in doubt and danger of undoing and also many times undone and lawful heirs disherited whereof there had never else but for his vain-glorious usurpation béen moved any such question since fréedom in them was given by Gods Law which ought to be most sure and certain But that notwithstanding Marriages have been brought into such an uncertainty thereby that no Marriage could be surely knit and bounden but it should lye in either of the parties power and arbiter casting away the fear of God by means and compasses to prove a precontract a kindred and aliance or a carnal knowledge to defeat the same and so under the pretence of these allegations afore rehearsed to live all the dayes of their life in detestable Adultery to the utter destruction of their own souls and the provocation of the terrible wrath of God upon the places where such abominations were used and suffered Be it therefore enacted by the King our Soveraign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same That from the first day of the Moneth of July next coming in the year of our Lord God 1540. all and every such Marriages as within this Church of England shall be contracted betwéen lawful persons as by this Act we declare all persons to be lawful that be not prohibited by Gods Law to marry such being Marriages contracted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had therein betwéen the parties so married shall be by authority of this present Parliament aforesaid déemed judged and taken to be lawful good just and indissoluble notwithstanding any Precontract or Precontracts or Matrimony not consummate with bodily knowledge which either of the parties so married or both shall have made with any other person or persons before the time of contracting that marriage which is solemnized and consummate or whereof such fruit is ensued or may ensue as afore and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise And that no reservation or prohibition Gods Law except shall trouble or impeach any marriage without the Levitical degrées And that no person of which estate degrée or condition he or she be shall after the said first day of the Moneth of July aforesaid be admitted to any of the Spiritual Courts within this the Kings Realm or any his Graces other Lands and Dominions to any processe plea or allegation contrary to this foresaid Act. Rep. 1 2 P. M. 8. Rep. 1. El. 1. This Act was not many years after repealed as followeth 2 3 Ed. 6. cap. 23. Part of the Statute of Precontracts repealed WHereas in the two and thirtieth year of the reign of the late King of famous memory King Henry the eighth because that many inconveniences had chanced in this Realm by breaking and dissolving good and lawful marriages yea whereupon also sometime issue and children had followed under the colour and pretence of a former contract made with another the which contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the marriage which they liked not and to be coupled with another there was an Act made that all and every such marriages as within the Church of England should be contracted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had between the parties so married should be by authority of the said Parliament deemed judged and taken to be lawful good just and indissoluble notwithstanding any precontract or precontracts of Matrimony not consummate with bodily knowledge which either of the persons so married or both had made with any other person or persons before the time of contracting that marriage which is solemnized or consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly appear Sithence the time of the which Act although the same was godly meant the unrulinesse of men hath ungodly abused the same and divers inconveniences intolerable in manner to Christian ears and eyes followed thereupon women and men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the contract of Matrimony they might have whom they more favoured and desired they could be contented by lightnesse of their nature to overturn all that they had done afore and not afraid in manner even from the very Church door and Marriage feast the man to take another spouse and the espouse to take another husband more for bodily lust and carnal knowledge then for surety of faith and truth or having God in their good remembrance contemning many times also the commandment of the Ecclesiastical Iudge forbidding the parties having made the contract to attempt or do any thing in prejudice of the same Be it therefore enacted by the Kings Highnesse the Lords Spiritual and Temporal and the Commons in this present Parliament assembled that as concerning Precontracts the said former Statute shall from the first day of Day next comming cease be repealed and of no force or effect and be reduced to the estate and order of the Kings Ecclesiastical Laws of this Realm which immediately before the making of the said Estatute in this case were used in this Realm so that from the said first day of Day when any cause or contract of marriage is pretended to have been made it shall be lawful to the Kings Ecclesiastical Iudge of that place to hear and examine the said cause and
having the said contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding solemnization cohabitation consummation and fractation as it becometh man and wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the Kings Ecclesiastical Iudge by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never been made any clause article or sentence in the said Statute to the contrary in any wise notwithstanding Provided alwayes and be it enacted that this Act do not extend to disannul dissolve or break any marriage that hath or shall be solemnizated and consummated before the said first day of Day next ensuing by title or colour of any Precontract but that they be and be deemed of like force and effect to all intents constructions and purposes as if this Act had never been had ne made any thing in this present Act notwithstanding Provided also that this Act do not extend to make good any of the other causes to the dissolntion or disannulling of Matrimony which be in the said Act spoken of and disannulled But that in all other causes and other things there mentioned the said former Act of the two and thirtieth year of the late King of famous memory do stand and remain in his full strength and power any thing in this Act notwithstanding Stat. 1 Eliz. 1. By these the inconveniency appeareth of taking away or altering an ancient long-settled Law practised long in all Christian Countries as this way which had it not been good probably the inconveniency and hurt of it had appeared in so long a time and the Law for the Oath Ex officio and Purgation is of like antiquity and practice in all Christian Countries without inconvenience or hurt thereby arising as yet that I ever could hear of therefore such Laws ought to be deeply weighed and considered of before they be repealed or altered And now that I am speaking of repealing and altering old Laws and making new I thought fit to close this Tract with some Notes of mine drawn up almost all of them in the time of the usurped Government and some after His Majesties restauration and communicated to the sight of some of Quality touching the repealing or altering of some old Laws and making new Some are already past and effected as that for the Lords the Bishops sitting again in the Lords House in Parliament and other things These I offer with all humility to be considered of if it shall by those in Authority be thought fit otherwise to be as unsaid Protesting that I retract as before any thing which is here mentioned that shall appear contrary to Gods Word His Majesties Prerogative or the Laws of the Land or the Just policy and government of any of His Majesties Dominions Touching Parliaments AS a Parliament well constituted and acting regularly Parliament proceedings conduces much to the happinesse of King and Subject so any exorbitancy or deviation therein of which surely all unbiassed men cannot but confesse we have had too much sad experience in the Long Parliament works the contrary corruptio optimi pessima In the time of the Long Parliament some as it were idoliz'd it even almost to an opinion even of Infallibility of which they have made too much advantage to the misery of King and People Some advised then that that great Wheel that great Court should have had its sphere of activity it s known certain bounds publickly declared and not have been like a great River prodigiously overflowing all its banks and bounds Such a Parliament acting regularly is' t not probable the Members thereof would not so much have thirsted to lengthen much lesse to perpetuate it They were called up to consult may not he that calls his Counsellor forbear consulting him when he pleases and dismisse him The extent of an Ordinance of Parliament Ordinance of Parliament having by some been tentor'd then even almost to Infinity might it not have been precisely circumscribed and the exact definition of an Ordinance given As also the just privileges of Parliament explicitely have been made known Privileges of Parliament that the Subject might not then have sworn or promised or protested to have maintained and observed them and yet could not possibly know what they were That due care should have been taken that they might have been observed and kept inviolable on all sides neither diminished nor scrued too high and both the Members of the Houses and the People to have had their just rights entire and for this purpose that that Protestation then put in by the Lords Spiritual the Bishops The Bishops Protestation with their Petition to have the force removed that kept them from the Lords House should have been well consider'd on and the right of Protestation in Parliament declared and maintained being a great privilege And whether after a just Protestation unjustly rejected and the Members kept out of the House by force that so protested and petitioned whether the other Members could then have proceeded further in the House In the late Kings time in the beginning of his Reign when the Earl of Arundel was imprisoned in the Tower about his sons marriage of the Duke of Lenox's daughter being of the Bloud Royal without the Kings consent the Lords would do nothing in their House till he was restored in regard he was committed onely for a misdemeanour and neither for Treason Felony nor breach of peace in which cases they then confessed a Member of Parliament in Parliament time might be kept prisoner The King none of the three Estates And the Lords Spiritual being one of the three Estates as 1 Eliz. 3. and elsewhere and the King being none of the three Estates the contrary whereof hath been falsly held but the Head and the Lords Spiritual and Temporal and the Commons being but Members and further the Lords Spiritual being one of the greatest Estates of the Realm as 8 Eliz. 1. Some doubted whether one of the Estates can destroy another and whether that come not near the contradicting that Axiom that the Parliament cannot be Felo de se whether that concerns not the Lords Temporal and Commons as well as the Lords Spiritual As for His late Majesties assent 't is known how far the prevalent power in both Houses then carried that and other things too to the misery of the Kingdom Who knows not in what condition the King then was forced to flye by reason of the tumults from Westminster to remoter places And as touching that Act of Parliament for their expulsion out of the Lords House it is not to be forgotten that when it was first brought into the Lords House it was rejected and ought not to have been brought in again that Session yet afterwards it was contrary to the order and course of Parliament brought in again when a great part of the Lords were absent if
voluminous to reckon up the several species of the sinister artifices and gins which were then dexterously us'd in that Long Parliament to promote unrighteous ends very often by tumults which were at the best of some factious persons by clamours and menaces as it were to force away such Members as they knew would oppose their designs By Petitions too which were but a kind of Tumults too in another dress and most shamefully carried on and gained many times whether we consider the inconsiderableness of the Petitioners Oyster-women Barbers School-boyes as in some Petitions against Bishops if not others as much if not more contemptible or whether we consider the number of the Petitioners many subscribing them that knew nothing of the contents of the Petition if not sometimes giving power with a strange implicite faith to cerrain men of their Faction to set to their hands to what Petitions soever their party should frame the Petitions perhaps framed in London and never sent into the Country but thousands of hands sent up in Schedules to be put to whatsoever the framers should please if not also which is much the same some Petitions sent up out of far distant remote parts from London with very many hands subscribed and the Petitions after they were come up to London altered and yet the same hands continued or set to it Insomuch as in the time of that Long Parliament it was at least once observed that some Petitions or a Petition with some thousands of hands subscribed and coming from some parts remote from London and brought into the House of Commons and there read in the morning took notice being mentioned in the body of the Petition of some passages of words spoken in the House the foregoing evening whereupon one merrily asked What notable Mercury had that last night gone from London into those remote parts and got so many hands in a nights time and brought them back thither that morning This did almost put some to the blush if that had been possible happy could it have suffundere sanguinem ruborem the want whereof did effundere sanguinem cruorem So common was this stratagem of Petitioning grown that it gave occasion to some Satyrist to paste up that Distich upon one of the Back-doors leading to the Lords House viz. Bellua multorum capitum populus fuit olim At nunc multarum bellua fit manuum It was long before the Romans would publish a Law against Parricide and such unnatural and horrid crimes and the Historian gives the reason Ne dum prohibent jubent and haply that reason may well forbid me and others from too much enumerating the unjust subtilties and deceitful wayes of this kind and rather were it to be wished that if possible they were buried in perpetual oblivion and no Topicks were left of them except as Land-marks to avoid and detest them For which ends to good purpose perhaps it might be time well spent to ruminate upon the Journals of the Long Parliament with their Declarations Ordinances and Remonstrances and His Majesties Declarations answering and confuting them especially that of Aug. 12. 1642. For reformation of such obliquities of tireing out the Members and surprising of them in a thin House for as to that way of Petitions and Tumults 't is to be hoped it will not be attempted again Some wished this might have been remedied if thought fit by fixing a competent time for so many hours of the day to sit in not to be exceeded but by consent of the major part of the Houses to be constituted as hereafter followeth That no Vote should have been passed in either House A competent number of Parliament-men to be at every debate without a matter of two parts of three or more as should be agreed upon of the House heard the matter fully debated and that no matter to be debated should be propounded till such a number had been visibly present in the House which might at the first sight have been easily discerned if the seats in the House had been so particularly disposed that without telling their particular number by the Clerks or any other it might have been known which might have been easily done thus In the House of Commons The manner how it may be constantly observed each long seat in the uppermost part thereof down towards the door to contain thirty or forty partitions or more or less as the length of the seat will bear so that in each partition there could but one man sit and an order made which seat should be first filled and which next and so successively one after another and none to go into the second seat till the first were filled nor into the third till the second were filled and so to the rest in like manner And to make it at the first view clear the number of every partition in order to be in great legible figures set over the head of the person that sits in that partition as 1.2.3.4 c. then it being known being made so plain and certain how many persons each seat when filled contained as thirty or forty c. each seat being to contain equal numbers if that may be at least each seat of the side so many and each at the end so many equally It is quickly determined by seeing how many seats are filled or how many are in such seats whether the number required to be at the passing such vote be then there or not The seats for Privy Counsellors may notwithstanding this be distinct and kept for them and for Committees some such course to be taken too if need were in a due proportion In the Lords House such distinctions of seats and partitions cannot be conveniently so done in regard of the requisite priority of place there which is otherwise then in the House of Commons yet the competent number there that House being not near so numerous as the Commons House which had need be as many in proportion as the Commons House might have been quickly and easily discernable The number of forty in the Commons House and a much lesse in the Lords House though by many accounted to be a competent number to make up an House we have seen how upon design ill use was made of it in the Long Parliament which could not easily perhaps not at all have been done with so great a number To instance no more the pitiful number of Peers present at the passing that pretended Ordinance for the late Lord Archbishop of Canterbury's death may be thought on Some advised Fees to the Officers of Parliament that it might have been considered what Fees should have been taken by the Officers of Parliament Clerks Serjeants and other Officers some then conceiving them to have been very high Touching new Laws Declarations c. to be made and old Laws to be repealed and altered WE have seen in that Long Parliament what ill constructions were made by some men of Precedents in foregoing
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 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 King 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 suit 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 not 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 Quasinon 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 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 At laus summa viris displicuisse malis 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 't is all one the Civilian being called up to a Committee of the Lords then in the Long Parliament out of the House of Commons to answer it By his Counsel he desir'd time to send into the Countrey where it was pretended to be done to know whether he had done any such thing it being impossible for him to remember every particular that he had done in his jurisdiction and that particular he said he did not remember He had time given and informed himself thereof and at the next appointed time of his appearanee 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 how at the name of Judas as at the Name of JESUS and I diligently enquir'd but never heard he was punish'd for it But would there had been no more then these though these are too much Would some had not gloried had not triumphed in their shame Bella gert placuit nullos habitura triumphos CHAP II. The two Proviso's in the late Act that takes away the doubt touching Coercive power in Ecclesiastical Courts Dr. Cosens Apology for sundry proceedings by Jurisdiction Ecclesiastical That groundless Opinion That a several Royal assent to the executing of every particular Canon is requir'd is confuted The validity of the Ecclesiastical Laws The clamours of Inconformists Innovators and Fanaticks against the putting of Ecclesiastical Laws in execution though the Ecclesiastical Of ficers and
or Indicia or taking with the manner or other notoriety of the fact or impeachment by some of the Complices or collusion of the accuser or the not objecting in due time or when the Enquiry tendeth but to a spiritual punishment may severally any of them serve to warrant such enquiry with some observations touching the nature of most of these C. 8. That to proceed sometimes against an offence otherwise then upon Accusation or Presentment or then upon an Appeal or Indictment which two at the Common Law have respective correspondence unto the two former is no diverse much less any contrary or repugnant course to the Laws Statutes and Customs of this Realm This is proved by Common Law Statutes and practice in proceedings informative and punitive with answer to certain objections made to the contrary C. 9. How the second opinion here to be treated of is that no Lay-person may be cited of office in any cause but Testamentary or Matrimonial and that the drift of that opinlon is against proceeding of office in matters criminal The necessary use and equity of proceeding somtimes criminally by the Judges office in Courts both Temporal and Ecclesiastical C. 10. Conteineth an Answer to some further objections made against the conveniency and reasonableness of proceeding against crimes of office C. 11. That the Laws of the Realm do use Enquiries and Proceedings ex officio that they allow it in Courts Ecclesiastical with answer to some objections that are made to the contrary C. 12. Is set down a Reply to the Note-gatherers answers given to certain reasons that have been made long ago for to shew the like course to be also practised in Temporal Courts and an answer to his reasons brought to prove that in proceeding of office there is some contrariety unto the Laws of England C. 13. That the Enquiry ex officio against crimes is allowed both in Civil and Temporal Courts and in Ecclesiastical also by the two Laws Canon and Civil C. 14 Conteineth an answer to such objections as upon the Civil or Canon Laws are brought against all proceedings of office in causes criminal by the Treatisor and the Note-gatherer C. 15. Enquiry and proceeding of office without an accuser and grounded upon some other of the means afore proved sufficient to enter into such enquiry is approved by sundry examples of Scripture C. 16. An Answer is made to such objections as out of Scripture or Ecclesiastical Writers be made against criminal proceeding of office by the Note-gather and others In the third part he concludes upon the whole matter for which his Apology was made C. 1. Of the lawfulness of Oaths What an Oath is and the reason or original formal cause of the use of Oaths C. 2. An Answer to certain doubts made concerning oaths as namely why in Scripture God is said to have sworn how by Oath he is said to be called to Witness An Oath no tempting of God but a part of his Worship Why nevertheless some are repelled from taking Oaths Whether Adjuration be lawful After whose meaning an Oath is to be understood Whether every promissory Oath be simply to be kept Whether an Oath may be dispensed with and how far and whether a Christian may by mutual Oaths contract with him that sweareth by false gods C. 3. Division of Oaths according to the outward form of taking them according to the matter and inward form of them with plain description of every kind of Oath C. 4. That the Ceremonies used in taking and giving of corporal oaths with laying hands upon the Bible or Testament and swearing by the Contents of it are not unlawful C. 5. The true issue of the next Opinion in question Two sorts of crimes and offences prohibited In what causes an Oath here spoken of may not be ministred and the manifold convenience and necessity of an Oath sometimes to be ministred in a cause criminal and penal unto the party with some few objections touching inconveniences thereof answeted C. 6. That Oaths of men touching matters damageable criminal and penal to themselves are urged and acted by Temporal Courts and by the Laws of this Realm C. 7. Wherein are contained Answers to such Objections and Reasons as be made for proof of a contrariety or repugnancy in these Oaths unto the Statutes Laws or Customs of this Realm and a Reply to the Treatisours Answers made unto certain Objections supposed likely to be made in justification of this kind of Oath by the Temporal Laws C. 8. That ministring of such Oaths is by the Law of the Realm allowed unto Judges of Ecclesiastical Courts and some few Objections made to the contrary answered C. 9. That such Oath touching a mans own crime is allowed both by the Canon and Civil Laws how far and in what sort and that the like is establish'd and thought equal by the Laws and Customs of sundry other Nations as well ancient as modern C. 10. An Answer to some Objections pretended to be made against this kind of Oath from the Laws Civil and Canon C. 11. That not only such an Oath may be taken but also being by Magistrates duly commanded ought not to be refused is approved by Scriptures by practice of the Primitive Church and of late times together with a Reply unto certain Answers made unto some proofs here used C. 12. An answer unto such Objections as be pretended to be gathered from Divinity Divines and from the examples of godly men against ministring Oaths unto parties in matters of their own crimes C. 13. Four several opinions of the Innovators against the parties taking of an Oath in criminal causes with Answers also unto their Reasons and Objections C. 14. That a man being charged by authority to discover his knowledge touching some offence which his Christian brother is supposed to have done is bound to reveal it though it may breed trouble and punishment to his broaher and the Reasons to the contrary are answered and refuted C. 15. their Arguments are answered that condemn the ministring and taking of an Oath as unlawfull because they have not distinct knowledge given unto them of every particular before the taking of it and the like course by Examples is upproved lawful and godly C. 16. That after the party hath answered upon his Oath it is neither unusual unlawful or ungodly to seek to convince him by Witness or other trial if he be suspected not to have delivered a plain and full truth and somewhat also in approbation of Canonical Purgation with answers to the Treatisors Objections against them CHAP. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A Summary relation of what Doctor Cosens in his Apology hath asserted and made good by Gods word the practice of the Primitive Christians the opinion of the Fathers the Laws Canon and Civil and the Laws of the Land allowing and warranting them The like practice at Common Law and