he was that emboldens me to desire your Lordships leave to prefix your Name that this may be as an Accessory to follow its desired Principal And knowing you to be such I cannot but as all that know you as well as I I am confident do wish for the common good that your Lordship were put in statum merendi into the sphere of your proper Activity that the Publick might reap the benefit thereof of and that your Talent might be no longer as it was whilest Rebellious Usurpation caused it and did obicem ponere now removed wrapt up in a Napkin nor your Candle hid under a Bushel So wishes so prayes MY LORD Your Lordships much bounden and most humble Servant EDWARD LAKE Westminster 11. Novemb. 1661. To the READER SOme account may perhaps be expected to be given of this small endeavour touching the passing that Act of clearing the doubt touching Coercive Power in Causes Ecclesiastical wherein is that Proviso that forbids all Ecclesiasticall Judges to tender or administer an Oath to any person Ex Officio or otherwise or Purgation whereby any person may confesse or accuse himself so as to make him or her liable to censure or punishment There were not a few persons unfriends at least to the Discipline of the Church of England that insulted much as is touched hereafter and clamoured of the oppression of the Ecclesiastical Courts that hath been say they all the time before the passing of that Act that took away that Oath It was suitable to their interest to call that oppression When Brutus had murdered Caesar he called him Tyrant Ita enim appellari Caesarem facto ejus expediebat saith Velleius Paterculus Histor lib. 2. From the time of passing that Act till within these few dayes I expected from abler pens some Vindication of the proceedings of Ecclesiasticall Courts as touching such Oath and Canonical Purgation and the lawful andexpedient use thereof before that Act but none that I hear of attempting it I looked upon the cause as a Derelict took it up and though by the late iniquity of the times I being too much severall wayes unfurnished for such a Work yet if but to give some satisfaction to indifferent men and to wipe away at least in part causeless calumny and to stir up others to a further prosecution hereof I conceived I might adventure upon this little Modell or Plat-form and perhaps more fitly at this time then another till a more complete Structure may be raised upon this subject if more be needful being so learnedly and fully handled especially by Doctor Consens sometimes Dean of the Arches and that late glory of our Church Doctor Andrewes lat Lord Bishop of Winchester That I should escape from objections and censures too I can scarce suppose upon such a Subject as this is ingrateful to such men as are haeredes ex asse to the ancient opposers of it and are inveighers against it and those that executed it quos laeserint oderint alwayes excepting the Members of both Houses of Parliament out of that number Some too perhaps may dislike my Dedication of it though no Act more free then that as not to some of my own profession or rather to my own most Learned and Pious Diocesan the Reverend Father in God Doctor Robert Sanderson Lord Bishop of Lincoln having relation to him by Office of Trust To him and then I should rather have made my addresse then Dedication and have herein consulted with them had time and convenience served before I had attempted this and not carry Owles to Athens go about to give instruction to them from whom I should rather have received it But as to that most Noble Person to whom this is inscribed though according to his Birth and Education his motion hath alwayes been in an higher Orbe and Contemplation of affaires of greater moment more immediately enabling him to serve his King and Country But they by being somewhat more particularly concerned in a great part of the subject matter hereof therefore by some may be supposed partiall and interessed Yet even in the subject matter of these Memoranda he is not unversed if not more particularly yet as comprehended in that generality of Learning and Knowledge whereto he hath from his younger yeares been habituated to at the feet of such a States-man as was his most accomplished Father and such Instructors as he by his especial and most discerning choice appointed him and all this perfected up by most advantagious acquisition by travel and residence in forraign parts amongst those who are justly ranked in the number of the most Civil Learned and Wise in Europe and so consequently in the Universe and so need not mine or others instruction herein more then others not professed Lawyers But all that is comprised in this Model both in the Memoranda's and the Notes somewhat grounded upon some yeares experience I have had and tending as before at least in my well-meaning opinion to the publick good solely is so most humbly offered to consideration if by those in Authority it be thought fit He is I conceive very fit to further and advance this both in consideration of his abilities and his being impowred as others of his noble rank and quality in the Supreme Judicatory of this Kingdom and by his own Genius and propensity willing and desirous to effect any thing ayming that way as less cannot be expected from the Son of such a Father and Husband of such a wife his most noble and most vertuous Lady a pair in respect of the mutual parity of their most intense conjugal affection and parentizing love to Loyalty Justice and Honour hereditary vertues flowing in their veines from their most Noble Loyally Gloriously Acting and Suffering Parents not easily parallel'd and therefore I have not so much Dedicated this to him as supplicated his effectual adminicular hand hereto Upon the whole matter as touching my self this Modell as also if not more especially the Notes subjoyn'd I having had no small share of Sufferings in the time of exilement of Monarch and Monarchy and so consequently of joy and gladness in the happy Restauration of both in my due gratitude and obligation both by tie of natural duty and of God and Mans Laws have made it part of my study to endeavour to contribute my well-meaning mite to the publick good and the prevention such miseries for the future as too lately we have had too sad experience of Instances might be given of many that have published their endeavours heretofore to such publick ends which have not proved ineffectual and more especially Mr. Spencer touching the State of Ireland in queen Elizabeths time If in any measure never so remote they may any whit help to attain to that end they aime at I shall be glad of it and with that true candour submissively offering them alwayes protesting as I now do that if there be any thing herein contrary to Gods word Directly or indirectly or to
His Majesties Prerogative or the known Laws of the Land Ecclesiastical or Temporal or the politick Government either in Church or State or which may give just offence I do hereby absolutely retract it as no wayes by me intended or thought of wishing this small taste may stir up others more able to make a further and better progress in this kind Anno 13. CAROLI II. Regis An Act for explanation of a Clause contained in an Act of Parliament made in the seventeenth year of the late King Charles entituled An Act for repeal of a branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical WHereas in an Act of 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
on that subject entituled Tenenda non tollenda or the necessity of preserving Tenures in capite c. and if it should be thought fit still to continue the abolition of Wardships c. whether the Tenures notwithstanding should be continued and whether a fitter retribution to His Majesty should be made then by Excise of Ale c. I need say no more of this but let Mr. Philipps book plead for it And also if it shall be thought fitting Rates to be set upon some Commodities for the sale of them that upon many more commodities then are yet the known rate and value of what they should be sold for should by indifferent and knowing men be set down considering the great hurt done by selling many commodities at unreasonable rates upon some accidental straits in regard of some accidents of time place or persons and many imposing upon the unskilful and unwary buyer very often as is notorious demanding more the double the price they will take In forreign parts both upon books and other commodities fitting rates are by Authority set down whereby the seller may have a just gain and the buyer not be over-reached Certum quid is the great satisfaction to the Subjects as in Fees certain in all Courts so at least in many commodities Also if it be thought fit that in point of dignity and precedency About dignity and precedency a fixt certain plain rule might be set down which probably would take away much emulation and grudging and quarrels oftentimes amongst many if it were clearly once determined And amongst others if it were so determined who should have precedency the eldest son of him whose father was a Knight and the first Knight of the Family or the eldest son of him whose father was but an Esquire but the eldest son of a Knight Senior to the Knight father of the former or whose Grandfather or direct Ancestor from whom he is lineally descended and is eldest son and heir was a Knight the second conceiving it is his right in regard he is the direct descendant and heir to the Senior Knight And that if it shall be thought fitting no person that bore Arms against the late King or His Majesty that now is or had any pretended Commission or authority so to do shall own the Title of General Lieutenant General Major General Commissary General Colonel Lieutenant Colonel Major Captain Lieutenant Cornet Ensign or any other Title by reason of any such pretended Commission or Authority nor any person shall so call them by any such Title under pain of a great Mulct toties quoties to be inflicted both upon the person that owns such Title and on the person that gives it or so calls them Nemo ex delicto consequitur beneficium and so bad a cause ought not in any implicite manner to be approved and rightly considered 't is an infamy to the parties to be called so And also Against the Act of limitation of actions in some cases if it be thought fitting that in regard that many who took the Kings part in the late wars could not have their right of suing for their own just due debts owing them and contracted either before the wars or in the time of the wars in the Courts of Justice then in being so that six years were elapsed according to that Act of 21 Jacobi 16. touching limitation of Actions and so they are thereby excluded to their great impoverishment There should be an abrogation or suspension of that Act so as to give remedy in this case that the spoiled may have reparation or retribution of justice if not reward for his Loyalty And also Against multiplicity of Statutes upon one and the same subject if it be thought fit that where Laws are doubtfully penned they may be explained and where there are multiplicity of several Statutes touching the same subject some repealing part of a statute some enlarging and altering so that the true meaning of the Statute becomes difficult and perplexed that in such cases all the said Statutes several so concerning the same subject may be repealed and one plain and clear Statute thereof to be made as namely these several Statutes in the Reigns of King Edward 6. Queen Mary Queen Elizabeth King James and King Charles 1. touching the prohibition of eating Flesh in Lent and other Fish-dayes and concerning Fasting-dayes may be so repealed and made void and one Statute made clearly and plainly to comprehend all that is necessary upon that subject Touching Ecclesiastical Persons Courts and Causes SOme have wished if it were thought fit The Clergies Proctors in the House of Commons that now the Lords Spiritual the Bishops being restored to their right in the Lords House that the Clergy should have their Proctors to sit in the House of Commons if they desired it representing the body of the Clergy as they used to do till about Henry the sixths time or not long before as it was then used since which time it hath been disused Some have affirmed that a Clergy-man of competent temporal estate having in King James's time been chosen Burgesse for a Corporation was not suffered to sit there nor a Clergy-man to say Prayers there Nor will some yield they can vote to chuse a Parliament-man either in County or borough so little of representation have they and yet when in Convocation they give the King Subsidies their grant must be confirmed by Act of Parliament Anciently such care was taken that Bishops should be present in Parliament that in their absence their Chancellors were summoned to sit there Also if it be thought fit About augmentation of Vicaridges that whereas before the dissolution of Monasteries the Bishops had power to augment poor Vicaridges out of the Tithes of Impropriations so they are now commonly called though the true name is Appropriations the Tithes having been appropriated to some Monastery or Religious house or other before the dissolution and after that falling into Lay-mens hands who held them improperly living by the Altar and doing nothing there got the Nick-name of Impropriators and Impropriations which now holds good such is the tyranny of Custom in this and many other cases Or if there were no Vicaridge endowed the Bishops might endow one nay and go so far as to leave to the Appropriator which then was that Religious house to which it was appropriated who then thought themselves as worthy to be kindly used as a man would think our Lay-Impropriators can do now not much more then a 50. part of the Tithes or thereabout It seems hard that the Lay-Impropriator should have a matter of 200. or 300 l. per annum Against Mensals or more and the poor Vicar a matter of 20. marks or 20. Pounds or thereabout and hardest in Mensals that is as it was usual when a Religious house could procure from the Patron the right of Presentation to some Living near their Monastery whither one of their
testibusque subornatis apud praesidem gravatus qui aut noluit aut non potuit provocare Mulier verò judicem religiosum sortita pudicitiam suam defendet Possibly he might be oppressed with Malice or condemned by false Witnesses or the Judge might be carryed away with smooth words or meer outward shews The Woman coming under a better and more upright Judge may vindicate her chastity and clear her innocence better Neither will any likenesse of one case to another involve an absent person in such accidents as have fallen upon other men for nec in simili negocio res inter alios actas absenti praejudicare saepe constitutum est sayes the Law p L. 4. Co. Quib. res judit It has been frequently over-ruled that though the cases are never so much the same yet a third person that never was a party shall sustaine no detriment by what hath been done between those that were For besides divers Lawes that are set under other Titles there is a whole Title to the same effect q Co. Res inter alios Judicat aliis non nocere Neither does the Law look upon it as any incongruous or strange thing that the same businesse should be judged diversly for it does instance where it does frequently come to passe Circae inofficiosi querelam sayes Paulus evenire plerumque assolet ut in una atque eadem causa diversae sententiae proferantur r L. 24. dig de inoffic Testam And the same sayes Papinian Filius qui de inoffociosi actione adversus duos haeredes expertus diversas sententias judicum tulit unum vicit ab altero superatus est In an action that is brought against the Will made by a Father to the disinheriting of his owne children it is usuall to have contrary sentences pronounced the Sonne to vanquish one Executor and to be overthrown by another And therefore the practicants allow not any such plea in the Court as to say that the case hath been judg'd except there be a concurrence of all these three things together to wit that the cause and processe be the same the right of action the same and the persons the same too Å¿ Gail obs lib. 1. obs 70. nu 17. so that though the causa agendi the ground of suit were the same in all things yet if the same persons never had any such suit depending but that there is a new person in judgement which never appeared before the proceeding must now be made wholly upon a new stock without considering how and in what manner the right has been judg'd before between other persons Neither is it materiall whether the Judge that is to give the present judgement be the same that judg'd the like case before or whether they be diverse for the Law is still the same in both Menochius resolves the one case t Consil 59. Diversae sententiae saith he à diversis judicibus inter diversas personas diversis temporibus ex una cademque facti specie ferri possunt Upon one and the same fact contrary sentences may be given by severall Judges between other persons at severall times and againe u Consil 180 â—um 51. Non aequissimâ— judicù est facere quod ab aliis fuit factum sed quod fieri ab illis â— buit sequi It is not the part of a just Judge to judge as others have done but as they and all ought to doe As to the other Christinaeus notwithstanding the great paines he has taken to gather together as many judgements and decisions of the great Councell of Machlyn in the Empire as take up six volumes yet he does not stick to say x Vol. 1. Decis 2. That Senatus non ligatur suis anterioribus sententiis quin valeat postea contrarium judicare The Senate was not tyed to former judgements but that they might judge the quite contrary afterwards for he accounts it praise-worthy to relinquish an errour and to embrace a truth at any time nor to be possible but that the change of times should introduce change of opinions and judgements also and shews that Afflictis in his time saw that judg'd one way which Grammaticus afterwards reports to have been judg'd the contrary y Ac propterea euria Par siâ—â—â—â— in sententiis saepius haee verbâ— subjecis Neu judicata res ad consequentia trabatur Bodin de rep l. 6. c. 6. Thus then since we require that Reason and naturall Equity should be strong and vigorous both in Law and Custome or at least no meanes repugnant to them when they come to judge us and that we see all manner of Reason to stand against judging by Presidents or foregoing judgements besides the universall Law and practice of Nations we conclude that the way of judging by Presidents is as erroneous a guide to walk by and as little satisfactory to the people as a Law or Custome that is void of all Equity and Reason and therefore by no meanes to be entertained or admitted And yet we must allow what Callistratus reports from the Emperour z L. 38. dig de Legib. Severus That rerum perpetuò similiter judicatarum autoritas vim legis obtinet Cases constantly judg'd one way for a long tract of time together doe set a rule to such as shall succeed for as Cujacius likens it to Custome a L. 7 dig de just ju Consuetudo saith he non vaelet nisi ex tempore longo usuque frequenti It a rerum judicatarum argumentum non valet nisi ex tempore longo sive diuturuo frequentique judicioque simili As custome is of no force except it endures a long time and is frequently put in ure So to argue from foregoing judgements is no weighty argument except they have been many and constantly the same for a long time together In like manner it is most true that Optima legum consuetudinis interpres est res perpetuò similiter judicata The judging of the same thing alwayes in one and the same manner is the best help to understand both Law and Custome by But then it must be saith Cujacius Non quodlibet judicium sed quod numero tempore valet as if he had said It must not be once twice or thrice judged so but the judgements must be many as well as alike and it must hold on so for a long time together before it can have the force or effect of a Law and after it has so long prevailed it may be esteemed not so much Law as Reason for certainly it could not have so long endured if the reason of it had not been evident to those whose judgements were so conformable as never to disagree therein CHAP. VII That they are great advantages which a Nation has by ruling by such a Law as is rationall THe governing and judging by that Law which Reason teacheth us cannot but be effectuall unto that Nations great good that observes
bona Paraphernalia or bona extra dotem and thirdly goods or estate that she kept in her own hands which never came to the hands of her husband p Paul de castr in l. maritus 21. co de procurat And because by the course of the Civil Law both her dower and the goods that she brought besides over and above her husband being dead came back to her again the husband having but the use of them during life q l. 4. co solut matrimon therefore where there was either children or kindred it did not admit the wife to have any part or portion in the husbands estate but did leave her to enjoy her own But if the case were such that she had no portion to bring in marriage or had but a slender one and that she has nothing or not enough of her own to subsist with nor otherwise be provided for by her husband the Law does then allow her a fourth part out of her husbands estate if there be three children or under but if there be more she shall then have an equal share with them for her life But if there be kindred onely and no children or if the children that be be not her children but children of another marriage she shall have the property thereof for ever r Auth praeteres co Unde vir Uxor schneidw loc citat Tit. De succes inter vir ux nu 14. But there is nothing that the Civil Law is more strict and sollicitous in then to keep men fast to such promises covenants and free gifts that they have made to others though made never so liberally and freely and without any consideration at all Nihil ita fidei congruit humanae quà m ea quae placuerant custodiri ſ l. 20 Co. De Transact Nothing suits better with common honesty then that those things which have been once assented unto should be observed Which it will have binding and obligatory though any right or property that a man has be there by passed and conveighed away Nihil tam conveniens est naturali aequitati quà m voluntatem domini volentis rem suam in alium transferri ratam haberi t Parag. 1. Inst De verb. obligat Nothing does nearer approch unto natural equity then that the minde of any man who once puts over any thing that he has to another should stand of force And the Law is the same when a man without any asking does of himself freely give any thing to another though he does not presently part with the possession u l. 35. parag ult Co. de Donat. The reason that is given by the Law is Cùm in arbitrio cujuscunque sit hoc facere quod instituit oportet eum vel minimè ad hoe prosilire vel cùm venire ad hoc proper averit non quibusdam excogitatis artibus suum propositum defraudare tantamque indevetionem quibusdam quasi legitimis velamentis protegere When it is in every mans free power to do as he purposes at first he ought either not to offer it at all or when he has gone so far as to pass his word he should not seek by any devised artifices to slip from his first intention or to prop up so much unworthiness with any fair or colourable pretences Onely a free giver has this favour shewed him that he shall not be urged to make good his word any further then in quantum facere potest habita ratione ne egeat so far as he is able to perform and not want himself x l. 28 Dig. de reg jur Nor shall he be so severely dealt with as one that has debts to pay Pinguius donatori succurrere debemus quà m ei qui verum debitum persolvere compellitur ne liberali tate sua inops fieri periclitetur sayes the Law y l. 49 50. Dig. De re judic We must lend a more favourable hand to a free benefactor then to one that is to pay a just debt lest a mans freeness should expose him to the danger of extreme want and penury And albeit it be a rule in the Civil Law that a bare promise or compact call'd Nudum Pactum is not obligatory nor shall give any cause of action z l. 45. Dig. de pact Yet when there is discerned a seriousness and an advised purpose in the promiser so that he does not do it suddenly and ad captandam benevolentiam to get favour onely or if it be manifest that he does it out of pure liberality the want of recompence compence or consideration will not make it Nudum Pactum but that an action shall arise upon it and he shall be bound to perform it Or if such promise or compact be put into writing which may argue it to be serious and deliberate the defect of a valuable consideration will not make it to be a Nudum Pactum but that it shall bind and he that made it shall be enjoyned to perform it also though he received nothing at all in recompence for it a Maestert de just Roman Leg. lib. 1. ca. 31 33. When the Civil Law gives way to two that are indebted each to other that when either sues the other may plead in bar the debt which the complainant ows him which if it be equal it strikes it off wholly or lessens it if it be under and so by discounting a mutual discharge arises without any money paid or not so much as is demanded who sees not that this part of the Civil Law is established upon so much natural equity and reason that it had been a Law of it self if the Romans had not made it so and ought to be of force every where throughtout the World it is so full of pure justice and reason Interest enim nostra potius non solvere quam solutum repetere b l. 3. Dig. de compensat It is an advantage rather not to pay at all then to pay once and be put to demand the same again And dolo facit qui petit id quod mox redditurus est c l. in condemnatione parag 3. Dig. de reg-jur His intent must needs be fraudulent that will exact that which he must render again to him from whom he receives it Besides he that will rightly ask his due must yeeld to another what is due to him And albeit it may be said that he may also sue to recover that which is owing unto him yet frustra fit per plura quod fieri potest per pauciora d l. 10. Co. De Judic A second action is a needless trouble and charge which may be brought to an end by one Stoppage therefore is unquestionably the most natural equal and easie way of payment provided that the debt that is set against the debt demanded be of the same kind and clear without dispute which if it be it may be pleaded even after judgment to hinder execution
which all men are to submit 126. 138. 157 Cases that do happen are to be all setled by some rule or other 145 Civil Law perfected as it is at this day very sufficient to resolve all cases that can happen 15. 53. 147. 155 171. and is the true Art and Science of Law 166 Canon Law and Civil Law have been at variance which should spread most 163. 185. yet both of them have been admitted by Princes for several uses 125. 185. that they are not inseparable as some do imagine 184. Canon Law is but the Civil Law applied to the use of the Church and church matters and is in most things the same with the Civil 163. 186 orders divers things meerly temporal under pretence of being spiritual 186 Causes that were tried by the Civil Law before the government changed why they should be tried by the same Law still 178. and in the Epistle D Defence legal ought not even in capital matters be denied a subject against his King 7 Dead bodies not to be arrested nor touch'd in their graves 80 E Exarchate of Ravenna after Constantinople was the seat of the Empire was still governed by the Civil Law 118 England had the Civil Law read publickly in it as soon as it was restored in Italy by Lotharius 125 Ecclesiastical men and Ecclesiastical matters have been and may be regulated by temporal Princes 186. 162 Ecclesiastical men have through favour of Princes rather then of right been suffered to order some causes which are meerly temporal 186 F Fraud so detested by the Civil Law that sometimes it did dissolve the whole bargain sometimes it did enjoyn the whole true value to be paid where one was deceived in more then half the worth 12. never suffered to bring any advantage to the deceiver or to any one else 13. most detestable in those that the Law does most priviledge when deceived 13 Forreign States not to be judg'd by Municipal Laws 146 Forreign States why they do judge so much by the rules of the Civil Law 153 G Great men are not suffered to assume or protect the controversies or litigious suits of others 62 Guardians may husband but not sell the estates of their pupils 106 Government was at first without any Law at all 110 Government being changed the Laws seldome remain the same 116 Government howsoever changed yet the Civil Law is of use 157. 176 I Ingratitude does make a free gift revocable from him that is ungrateful 84 Italy was seven times brought almost to utter desolation in less then eighty years 114 Justinians body of the Law was compiled at Constantinople and kept out of Italy 500 years together 118. but prevailed altogether in the East ibid. Italy when it was possessed by the Gothes and Lombards some parts of the Civil Law were in use there still 119 Justinian is by some made instrumental in suppressing the old books of the Roman Laws after his collection was finished but without just ground 121 K Killing in ones own defence ought to receive no punishment 6. nor killing by chance ibid. A King by the Civil Law is no more absolved from the observation of the Law nor has any looser power over the lives liberties or goods of his subjects then by other Laws 19 Kings being driven out of Rome their Laws were never in use more 103 L Law what properties it ought to have and that chiefly it ought to agree with reason 1. 2. seq 46. it is but a determination of the Law of Nature 4. it must not onely not cross the first and chief principles of nature but not such neither as are any way though remotely depending on them 8. to be fairly and candidly interpreted and without any fraud 13. may profitably containe the very maximes of Reason 21. common capacities no good judges of Laws 25. and who are and what must be considered to judge rightly of them ibid. the severity of them to be imputed to the demerits of men 26. though not so rational as others subjects must acquiess in them till they be altered 31 Law of Nations is that which orders all affairs between Nation and Nation 59. to be known out of the Civil Law 61 Laws of the twelve Tables the ground-work and foundation of the Civil Law 104 Laws of all other Nations are gone and extinct with the States themselves excepting the Roman 110 Laws of some people more famous then others 111 Lotharius the Emperour was the restorer of the Civil Law when it was as it were extinct in Europe 122 Law forreign not to be preferred before the proper Law of the Countrey 125. 140. 144 Law of no Nation so sufficient but that another Law is needful 128. 144. 154 Law of government proper for the state it self is necessary in every Nation 129. 140 Laws of all Nations too imperfect for the multitude of cases that do happen 52. 144. 145 Laws not to be measured by their abuse or execution 28 Legal matters are to be judg'd by Lawyers onely 25. 151 Lawyers none in forreign parts but Civilians 152 Lawyers of the latter age more learned then those before them 160 Two Laws in one state not inconvenient 120. 154. 182 M Municipal Laws must be in every Nation 129. 140. and they to be preferred before any other Law or reason 103. 125. 140. 143. 144 Municipal Laws are too short and scanty to take in all cases that do arise 144 Merchants no fitting judges to trie and decide Sea causes 148 Men how much they differ in their tempers and so in their actions 25. 41. 53. 145 Monarchy is no looser government then any other 19 Military questions to be regulated by the Civil Law In the Epistle Municipal Laws have no degrees taken nor Lectures read in them any where but in England 152. 153. all that is good in them is taken out of the Civil Law 98. 164. N Nations not so abounding in all things but that they do or may stand in need one of another 155 Nations abroad do mainly practise the Civil Law in matters between man and man 128. 133. 159 Nations abroad are best satisfied by justice done according to the rules of the Civil Law 134 Nations in their dealing with one another must have some common Law to guide them 59. 146. 155 National differences not to be debated but by the Law of Nations and the reason of the Civil Law In the Epist and fol. 65. Natural Laws cannot be repealed 49. 174 O Offences though the same may be punished with more severity in one State then in another 26 P Parents could not give away nor forfeit their whole estate from their children by the Civil Law except in case of Treason 9 Proceedings legal how rationally ordered by the Civil Law 15 President or example no rule to judge by 38. 65 Promises if serious though without consideration are to be performed by Civil Law 87 Pope of Rome did make edicts against the Civil Law thereby to advance
So he ought to be bound up not with his bare naked answer or as others would have it with a pecuniary Mulct these are not bonds of the soul which is the Interpreter of Truth but with that alone true and onely bond of the soul that is by an Oath And thus at length the whole hinge of the cause being fixed as it ought to be let us proceed to those Confirmations as St. Paul calls them Neither is it fitting as I hear some complain that the guilty or defendant party should be so bound up and the Agent altogether free Nor is our Law so but as it is not safe for the party agent to be sworn for the reasons that I have twice named Apoc. 12.10 and God himself suffers Satan whom he knows to be a Calumniator to be also an Accuser yet the accusation is so to be put into suit or action and the accuser is so by contract to give security under the penalty of a certain pecuniary Mulct or of a certain note of Infamy under the price of the loss of his time Exod. 21.19 as the Law speaks except he prosecute and prove the suggestion and accusation he hath given in So it is provided for on both sides on the one side by the Religion of an Oath on the other side by a double Mulct and no simple Infamy so that the Agent cannot calumniate nor the party guilty or defendant cannot fly back Now that first of all the guilty or defendant party should be sworn and then answer which some cannot away withall it is just and lawful for if he should do it unsworn he should do it but in a trifling manner that is being free from the Religion of an Oath if any clause in the action should more closely presse him he should refuse to answer should turn himself to and fro seek shifts diversions and cautels should answer nothing explicitely and home that which in conscience of Religion he is tyed to do after he has bound himself by oath to do all things holily and clearly that he had rather be guilty of doing an injury then of Perjury and would rather subject himself to losse then damnation Shall we take a form hereof from the Law and the holy Writ none seems to me fitter for that purpose then that questioning of Ezra in the 9. and 10. Chapters of Ezra where the parties guilty or defendant answer but first were sworn The order and course of which judicial proceeding was this some of the principal persons come and relate the matter to Ezra of Marriages contracted by many suppose an hundred and ten with strangers chap. 9.1 Ezra forces those guilty or defendant parties even many of them not guilty or complained of to take an oath chap. 10.5 he forces them too in a cause in which they might be convinced by witnesses but first he forces them After that as in the 5. chap. 16. verse Esdras with the rest to whom the care of that cause was delegated sit upon the cause which the third Moneth after they bring to effect Which form being used by Ezra a ready Scribe and skilful in the Law of his God it may answer the desires of any man not unjust as to the practice of the Law as they speak and the knowledge of the rules thereof And this is the former use of an oath just and lawful in the settling of the foundation of a suit or controversie The other is when arguments are used to make good the snit or controversie begun Now the arguments or these Confirmations to which the Judge gives credit are partly marks and presumptions such as the nature of the cause bears certain and undoubted partly in corrupt and sound testimonies Presumptions or marks such as are brought forth by the Parents in the case of the slandered Virgin Deut. 22.17 Testimonies upon whose credit the whole action is confirmed Deut. 19.15 In the number of which I say of Testimonies I place an oath and that bounder of controversie or as they speak that decisory oath of controversie Heb. 6.16 The Hebrews out of the old Canon make two parts or rather if you will two kinds of an Oath The former is a solemn contestation wherein any call God to witnesse for want of other witnesses who either cannot or will not bear witnesse even God they call to witnesse who is present every where and in all actions and hath the right of a witnesse The Lord Jehova lives before whom I speak this is a form of contestation Iudges 8.19 The later I may call it an Execration wherein a man gives oath to his contestation or joyning issue in the cause as 't is called pawning as it were his salvation and renouncing all the hope and help he hath from God if he bear witnesse falsly So do the Lord to me and so let him adde there is a form of Execration 1 Sam. 14.44 Neither have Divines thought it of lesse concernment or that the guilty or defendant party was lesse bound whether he used either of those forms or both I adde also whether the Magistrate contest the guilty or defendant party or by adjuration he be execrated or he do it to himself by taking an oath for 't is all one whether this or that be done whether an oath be laid upon the guilty or defendant party by the Judge or he lay it upon himself And that they take for granted as well by Prov 29.24 in regard of the position as by Iudges 17.2 by reason of the condition But this controversie brings another I prosecute not that I prosecute that I begun touching Arguments Now God hath given power to the Judge to enquire of the Arguments touching the crime and of citing the Testimonies as also to the giving of oaths and that for the collecting the confirmations of the cause That power is mentioned Deut. 13.14 Thou shalt enquire saith that Lord and that in general whereof he subjoynes two kinds the first Thou shalt search that is presumptions and arguments The second Thou shalt aske that is witnesses and those that are knowing of the passages concerning that cause The Arguments So it was lawful for Joseph to search his Brethrens sacks that he might find the Cup taken away by theft Gen. 44.5 So is it lawful for our Magistrates to search the hidden corners and secretest rooms of the house so to find out marks or presumptions of suspected crimes Testimonies So it is provided by Gods Law Lev. 5.1 If a soul hear the voice of swearing the Chaldee Paraphrast a most ancient Interpreter of the Law hath added to it * Here seems to be some mistake in the printed Latine nor where we have erred nor is it to be doubted but that it was according to the sense of the ancient church even before Christs time made or given by the Judge and he can be a witness of that matter as one that saw it and knew it in which place the Septuagint turns