Lords House at first Could the Houses especially the Commons House then have been brought into such due order as not to act extra spheram activitatis suae 't is well to be hoped they would not as above have been desirous to lengthen or perpetuate that Parliament when they can as by right repeal no old nor make no new Law nor tax the Subjects estate nor make Ordinances to have the force of Laws without His Majesties assent King Henry the Eighth suffered the Houses of Parliament in Ireland for a matter of two years or thereabouts to continue petitioning him to dissolve them and dismiss them home which he would not do till he saw cause Though this is not in his commendation yet hereby the just power of the King appeared and the right of his Prerogative which hath been too long and too much trampled upon And surely the Law in this point is the same in England as in Ireland that the just bounds and limits on all sides might be preserved inviolate Touching the Age of Parliament-men In the Lords House none sit there under 21. Age of Parliament-men years of age and some wish none might under 30. though there they are singly for themselves and represent not others as in the House of Commons But in the House of Commons there hath been sometimes as was in the Long Parliament Members about 16. or 17. years of age if not some of them under and their Suffrages and Votes were of as much force as the eldest most experienced in the House And it hath been the observation of some experienced and wise Parliament-men that oftentimes in that House those that had the shortest wings were the highest flyers and such as these could adde number and so consequently weight to a side The inconvenience and hurt that arose from hence is easily demonstrable and hath too much appeared by frequent experience Some have wished that there should have been no Member of the Commons House under the age of 30. years there being so large a field whereout to choose Parliament-men for every place and it being even as it were ex diametro contrary to the nature and denomination of a Parliament which is but a great Senate so called à Senioribus the constituting Members thereof Touching the Election of Parliament-men Some have advised that it should be clearly free Election of Parliament-men without such ambient means as were used in the Long Parliament by some Factions and whereas every man may give his suffrage for Counties that hath 40 s. per annum and in Cities and Corporations without such a value that being the old custom And that which was 40 s. per annum in former Ages is worth now ten times as much well nigh if not more So consequently the Electors should be of better estate There being such a vast disproportion betwixt the Cities The great number of Burroughs Corporations alwayes excepting London and Corporations Burroughs especially and the Counties wherein that Burrough and Corporation is scituate for number of Inhabitants which heightens the concernment In some Counties there being so many Corporations that the County having but two Parliament-men to represent them be the County never so great yet every petty Corporation whereof in many Counties especially in the West there are very many such hath as many to represent it of equal power in the Commons House with any other Member of County or City So that the Parliament-men serving for Cities and Burroughs are in number by many degrees far much more then for Counties which hath been conceived to have been no small cause of our late troubles Some advised for that reason and for other reasons too well known notorious and obvious to every indifferent eye that the number of these Burroughs should be much lessened or at leastwise that power of Electing Parliament-Members Especially so many of these Corporations Cities and Burroughs having in these late troubles so clearly forfeited their Charters Touching the manner of proceeding in Parliament in the Commons House in the Long-Parliament It hath been ordinarily observed as is touched above that in Committees in that Long-Parliament some have given their Suffrage or Vote Negatively or Affirmatively upon the cause when it was to be reported though they have not heard the whole cause and sometimes but a small part of it Great numerous bodies being sometimes too ready to divide into parties and factions as hath been seen too often in that Long-Parliament and so consequently endeavouring to heighten their own side have taken hold of and created all occasions and advantages that might further it Oftentimes the Younger tyring and wearying out the Elder or more incurious Members by long Speeches and continuing the sitting of the House long and late in the night till it was grown thin and by the departure out of it of so many of the more Aged and less sedulous Members that the remaining party according to the destined and strongly preoperated design grew prevalent To instance no more and happy had it been for these miserable Kingdoms that it never could have been instanced that fatal great Declaration or as the late blessed King and Martyr called it the Appeal to the People hammer'd out that way by wearying out so many of the Members by sitting so long even all or the greatest part of the night may witnesse this to all posterity Which gave occasion to some to call it a Nocturnal parliament but very appositely did Sir Benjamin Rudyard one of those ancient Members that was so wearied out when one asked him what he thought of that Vote so carried for that Declaration so late in the night or rather in the next morning answered that it looked like the verdict of a starved Jury Many other indirect wayes to call them no worse were used by interessed parties in that Long Parliament to compass their ends much by surprises when too many Members either wearied out as before or else gone out ither upon their pleasure or private concernments or thereupon absenting themselves from the House then the House being thin'd according to their desires they easily gained the major part of the suffrages or else clap'd in early into the House whilest the negligent party were in bed or absent upon their private business neglecting the publick to which they were called and so carried it and by such like wayes contrived and effected their laboured ends perhaps by their engines so laid to draw away many whose company they would gladly have been rid of out of the House and to keep them out when so absent or to hinder them from coming in at all Such may not improperly be called Parliament Decoyes or rather as in that Long Parliament when some of the Members impeached eleven of their number upon one of them in the charge against him they fixed the stigma of the Parliament-driver and when it made for them imputed it to him for a crime It would be
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
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
power being themselves not bound to any Laws or Customes at all And that is it for which Pomponius b L. 2. Dig. De Orig. jur in print writeth the Roman Common-weal to have been at the first governed by Regal power without use of any Laws Justin c Lib. 2. saith of Athens that there was a time when Nullae civitati leges erant quia libido Regum pro legibus habebatur that the City was without Law because the wills of Kings were Laws And Josephus the Historiographer in his second Book against Appian desirous to shew the most honourable Antiquity of the Hebrews and of their Laws saith that Moses of all others was the first that ever writ Laws and that in five hundred years after the word Law was never heard of alledging in proof thereof that Homer in so many books as were by him written never useth this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Law d Bodin de rep lib. 6. ca. 6. It may therefore well be told us that we have no cause to marvail if we have no Laws at all transmitted unto us from those first times there being then no certain standing Law any where Yet I am sure afterwards when all people saw that to live by one mans will became the cause of all mens misery this did necessitate succeeding ages to come unto Laws established wherein all men might see their duties before-hand and know the penalties of transgressing them e Ut bonesterum ac turpium lex aeterna in memibus unjuscujusque nostrum ab immortali Deo sit inscripta poenae tamen quibus improbi ab injuriosa facinorosaque vita avocentur in animis inscript◠à Deo nullae fuerunt Bodin de rep lib. 6. ca. 6. and be more secure against the irregular passions of their Rulers whom they found by woful experience to be too apt to degenerate into Tyranny And yet they have not rested here neither but have committed the same to writing that their subjects might have them continually before their eyes and to transmit them to posterity also lest they that should come after should vary from those foundations on which the State was first laid and so hasten the downfall of the whole society Hence it has come to pass that the Laws of some certain people have been more famous then the Laws of others and the Authours mentioned with high praise and commendation Solon who made Laws for the Athenians and was accounted one of the seven Sages in Greece is highly commended for his great wisdome in making Laws both by Aristotle and Plato who proposeth him and Lycurgus the Lacedaemonian Law-giver as patterns for all such as shall institute Common-wealths and devise Laws for them Plato also prayseth the Cretensian Laws and Isocrates the Laws of Lacedaemon Zaleucus is upon record too for being a great Law-giver amongst the Locrians and Charondas has got himself a name for the Laws the Thurians had from him And so has Zamolxis Pythagoras his scholar for the Laws he gave the Getae And yet of all these Laws so much extolled and spoken of amongst the Learned there is not one extant to this day in any entire body I say in an entire body because of the Attick Law some fragments may be found which the industry of Petitus has collected out of several Greek Authours as Athenaeus Plato Plutarch Demosthenes and others where they lay dispersed which though they may busie Criticks and those that contemplate upon Antiquity yet are of no use to govern a State by nor to decide differences that arise in common intercourse As it is no small wonder then so does it adde much to the Honour of the Roman Civil Law that it has not been swept away by that common fate under which these and all other ancient Laws have perished but is the sole surviving Law at this time The preservation whereof is the more to be admired if it be considered how by the stormes and persecutions of several ages near it has been to be annihilated and quite supprest as all other Laws besides it have been For as the affairs of State have succeeded and as the Emperours themselves have been vertuously or vitiously inclined so has it fared with this study and the professours of it and indeed after the same manner with all other kind of learning Julius Caesar Augustus Tiberius Claudius Vespasian Trajan Adrian Antonius Pius and Marcus Antoninus the Philosopher Alexander Severus Constantine Theodosius and Justinian that were Emperours vigilant and industrious for the prosperity and weale of the Empire and designed nothing within themselves but actions of vertue and honour well knowing that their true interest lay in the maintaining of the Laws and government without which all things must needs run hastily into disorder and confusion they had the Lawyers of their times in highest esteem preferring them to the publick offices of State both of honour and justice and admitting them into their secretest and most important counsels and seldome was any Law made to which they were not call'd to give their counsel and advise Insomuch as it is written of Alexander Severus one of the before named Emperours that he never established any Law without the presence and assistance of twenty of the most renowned Lawyers and fifty other most judicious and acute men a Baldwin Prolegom ju Givil Forster bist ju civ lib. 2. ca. 77. But there were others that sate in the Empire of a far different nature and disposition who disdaining that their will how vitious and lewd soever should be circumscribed within the bounds of any Law and esteeming it a dishonour that Lawyers who were but private men should undertake to advise Princes or that any thing should be done in State but what themselves absolutely commanded some of them despised the whole Law and slighted those that taught it others proceeded so far in cruelty as to banish some and to put other Lawyers to death for so did Nero Commodus Caracalla Heliogabalus Septimius Severus But to persecute and take away their persons did not satisfie the fury of some implacable Emperours since others did succeed still in their room Therefore it was thought necessary by some that the Law it self should be so dispatch'd as it might be sure it should never renew or rise again b Annae Robert rer judic lib. 2. ca. 1. Caligula therefore put on a more hardy but a most barbarous resolution to burn all the books of the Law that were then extant pretending that equity would run clearer and justice be quicker where the niceties and perplexities of the Law were gone Sed non fuit tam diuturnum ejus imperium ut efficere potuerit quae meditabatur nec passus est Deus rata esse hujus tyranni impia reipublicae perniciosa consilia But his reign did not endure so long as to execute what he did intend neither would God suffer the design of this tyrant that was so
it should not be admitted to teach us true equity and sound reason their restraining Edicts never have so far prevailed so totally to suppress it from the time of Lotharius the second the first restorer and reestablisher of it to this present which is now full 500 years Plurimùm distat lex à jure sayes the same Bodine Jus enim sine jussu ad id quod aequum bonumque est lex autem aâ— imperantis majestatem pertinet There is much difference betwixt Right and Law for Right without any command insinuating it self into the soul of a just man recommendeth to that which is good and equal but Law importeth a command of some Sovereigne which may force and hurry the will to such an action which in equity or right reason may not be good or laudable As a Law to bind by its own proper power and vertue or by any authority of those that made it the Imperial Law is not admitted in any Nation Yet no Christian Nation with all the express decrees that that they have at any time made against it has been able to exclude it as it containes veram naturalem rationem optimum inter omnes leges humanas exemplum aequitatis normam authoritatem prudentum veram justitiae rationem artem scientiam juris ut bonos mores complectitur they all admit it as it does propound and hold forth true natural reason and as it is the most imitable pattern amongst all the Laws of men the rule of equity the voice of Sage men the true method of justice the art and knowledg of doing right and as it comprehends instructions for a moral life For thus to shut the door against it were to renounce reason equity justice and to defie all moral goodness Thus much may very well suffice to shew how the Roman Civil Law has had the singular honour and prerogative which no other Law has had to be rescued from that universal deluge of abolition which hath swept away all other ancient Laws besides it and not onely to oâ—t-live Rome it self but to out-stand many dangerous assaults and casualties and divers sharpâ— penal Edicts that have been made against it and to continue to this very time a large and accomplished body This surely next to the providence of God who hath so disposed it must needs be ascribed and the cause must needs be conceived to be some especial excellency and rare wisdome that is in the Law it selfe For else why has not other Laws continued as long as that has done CHAP. IV. That Forreigne Nations in doing of Right between Man and Man do mainly practise and make use of the Rules and dictates of the Civil Law THat the Roman Civil Law framed so many hundred years ago and devised for the use of one Nation onely is still extant and in being at this day the state it self being quite extinct possibly it may not seem commendation and praise sufficient except the use practise and observation of it up and down divers great Nations of the World be also shewed The next thing therefore that we have to say in further praise thereof is that the greatest and best ordered Nations though they manage their publick occasions and affaires of State by rules and directions of their own ordaining having an eye to the nature of their people way of government and present exigencies onely yet in the dispensation of private justice and in pacifying the debates and differences that do arise between their subjects where meer right and equity onely is considerable they use and practise the rules and principles of the Civil Law chiefly Peculiar Statutes Ordinances Customes and municipal Laws every State has of its own making which in the regulation of its proper affairs it does prefer before any other Laws or constitutions whatsoever though in reason and convenience they may seem much better Yet humane occurences are so many in number and in circumstances so greatly differing one from the other that no Nation is perfectly supplied with Laws of their own to answer them but that there is still need of some subsidiary Law more universal and comprehensive then its own And from this ground is it that most States have entertained the Imperial Law to supply and assist where their own is defective making their study and science of Law to consist in that but the use and exercise thereof to be restrained and bounded by their own proper Laws which every Nation requires to have first known and chiefly to be observed Wherefore if you travel into their States and shall ascend up into their Courts and places of Judicature both Judges and Advocates will be every where found to be all Civilians and Graduates in that faculty the proceedings in causes there to be most after the form and manner of the Civil Law And when any case comes to be resolved by final sentence if there be any proper or peculiar Law of their own Countrey to determine it judgment passes as that special Law directeth but if that be wanting as commonly it is presently recourse is had to the Civil Law and by that is it both pleaded and judged Which because it shews the transcendent excellency of this Law being incident to no other Law besides and being not throughly enquired into may seem incredible to many men it is therefore a point worthy of a strict examination and fit to be fully cleared and perfectly understood For peradventure it may not pass without a wonder that a Prince or Common-wealth should not be able to manage their rule and government by Laws of their own devising or that any differences should arise amongst their people which they knew not how to decide of themselves but must consult with the oracles of other Nations It eclipses some may think the Majesty of a State to have rules prescrib'd to it by others And since the time that a divivision of Kingdomes was first made and each had their bounds set them no Potentate no not the Emperour himself has pretended to a power to give Law to any but to such as have been his subjects by birth habitation or conquest Neither can Lawes be made to regulate the whole World or to bind all people sayes Suarez m Lib. 3. de legib ca. 4. nu 7. ca. 7. nu 9. Besides quae leges Romanis congruebant non omnibus jam congruunt mutata est ratio vivendi status rerum mutatus sayes Ludovicus Vives n De caus corrupt art lib. 7. The Laws that were proper for the Romans suit not so well with others the manner of living is not now as it then was the state of affairs is clean changed climates differ and the tempers of people differ too new and strange accidents do frequently arise which will require new constitutions to settle them the form of governing is divers in several times places the Laws therfore cannot possibly be the same Monarchical Laws are of no use to
examineth Gehazi his servant (c) Gen 43.3 Joseph in AEgypt gave an oath to his brethren (d) Ezek. 7.13 Zedekiah took an oath of Subjection and is blamed and punished for breaking of it (e) 1 Sam. 21.2 The oath given to the Gibeonites was to be kept and the violation of it punished For the manner of proceeding or the cause of questioning we see many instances First in flagranti crimine * John 8.4 if a party be taken in the manner as we say or the fact is manifest as (f) Num. 25 8 Zimri's was (g) Deut. 21.3 Or though the fact be manifest the person committing it is unknown or the question is of the person the fact being unknown as in (b) John 7.18 Achans case Or by indicia suspected signs so (i) Gen. 3.8 Adam hiding himself So against (k) Gen 4.6 Cam Abel not appearing Adam impeacht Eve and Eve the Serpent and both were punished upon it Or upon infamy and cry (l) Gen. 18.10 The cry of the Sodomites being great I will descend saith the Lord. And such kind of Enquiries are made both in the Law (m) Deut. 17.4 If a report shall come to thee or thou shalt hear as also in the Gospel as against the incestuous person (n) 1 Cor. 5.1 It is reported Or by suggestion or complaint as in (o) Job 1.11 Jobs cause where the Devil was Accuser Joseph onely upon suspicion gave his brothers the oath Evangelical denunciation as Mat. 18.7 when Church or state are in danger as in the Valley of Achor that is against the troublers of Israel so signifies the word Achor When Peter and John were examined in the great Council By what power Acts 4.7 or in what name they had done that miracle Peter full of the Holy Ghost answered plainly and truly though it might have been capital to him What spirit are they of who being required by lawful Authority to answer in matters not capital yet will not answer at all for upon a mans own confession judicial though not upon oath he may be equally convicted In the proceedings against St. Acts 6. Stephen there were no Accusers in truth but those who by Subornation denounced him to the Priests and who are twice-called witnesses because they deposed against him yet he refused not to make answer though capital to him When the Captain asked St. Paul Acts 22. whether he were not that AEgyptian that made a Sedition c. he answered directly and denied it Likewise the same Saint Paul in all other his conventings before Authority mentioned in the Acts even at the suit and accusation of a p arty refused not particularly and truly to answer to all that was objected Acts 4.25 c. And all this is done to the sifting out truth and punishing crimes either truly so or at least thought to be so and criminous persons are questioned as well of the fact as circumstances or fame (a) Gen 3.9 Hast thou eaten of the fruit of the ferbidden tree So the Princes questioned Baruch about Jeremiahs book (b) Jer. 36.17 Tell us how didst thou write these words So (c) Ezra 10.11 Esras examined the questioned persons concerning their own fact So the (d) Acts 23.20 High-Priest having committed Saint Paul examined him further for oftentimes Accusers as the Heathen could observe fall off all cannot some will not accuse what then many crimes being the deeds of darknesse cannot be (e) Eph. 5.11 revealed (f) Prov. 16.5 Because hand is in hand and they will not bewray themselves Because the name of Doeg founds harsh and to come forth to accuse a man is accounted poor and odious a matter of cost danger and (g) Prov. 25.8 Infamy must Villany therefore be hid and scattered abroad and get strength till they break out to the destruction of the Commonwealth Or because none can or will for 't is all one whether one will not accuse or cannot accuse therefore it is not lawful to question and without an Oath 't is to little purpose therefore God commands that way of Adjuration or giving an oath * 2 Kings 22. So the King adjured Micheas †Mat. 26.93 so the High-Priest our Saviour and both of them answered But should any question Adjuration even a clear oath was lawfully given even to the actor as Exod. 22.8 1 Kings 8.3 and therefore more then permitted to the Magistrate For surely it were hard if every private man might require an oath of the questioned and not the Magistrate should it be lawful in the cafe of a Pawn and not of a Kingdom An oath is an end of controversie Heb. 6.16 saith St. Paul then an oath to be taken for that end In a case Matrimonial which is meerly ecclesiastical Interrogatories were administred with oath as in a cause of Incontinency Num. 5. and the proceedings being by Enquiry without any accuser at all And this which is to be noted in the case in Esdras Esdras 1.8 9. they are no wayes forced to it but desire to take their oath first and to be examined after then which there is no cause more suitable then to the proceedings in Ecclesiastical Courts before the Passing of the late Act and against which the Innovators heretofore used to take exceptions In some of these above-mentioned instances we see how oaths were administred even in capital causes much more may they be where there is not that danger nay no danger of losse of Goods Liberty or any other losse but onely for a medicine to the soul for reformation of manners and taking away scandal and offence given They were questioned too we set upon small su7spicions signs presumptions or any other causes of question nay nothing at all as to the person questioned upon whom no true colour of suspicion lay something like our Coroners proceedings in some cases but onely a fact was committed that was apparent whereof it was possible that he was not guilty as in the case of a person found slain then much more ought it to be upon great suspicions presumptions or publick fame thereof proved This being thus by Gods Word in the next place we may look into the practice and opinion of the primitive Christians hereupon CHAP. VI. That the Opinion and Practice of the Primitive Christians and the Fathers of the Church was to administer such Oath Ex officio and upon Accusation and for Purgation Canonical with the practice at Geneva IT is well said by an ancient and learned * Cromatius in 5 Mat. Facit canon 36. concil Tolet. quart Writer Dominus inter juramentum loquelam nostram nullam vult esse differentiam And Aquinas saith †Thom. 2.2 qu. 69. art 3. If he which is brought into question and interrogated by the Judge without his oath shall answer untruly that therein he sinneth deadly The old Christians in the primitive Church were far
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
is the most frequent and onely mention almost of such a thing This very term to Swear you will scarce any where find it in the Old Testament but either under the word Hiphil that is the Imperative commanding conjugation in respect of him that gives the oath or under the word Niphal that is the passive suffering conjugation in respect of him that takes the oath And under the same rule are the Greeks amongst whom Orcos is the name of the oath which almost solely the holy Ghost acknowledges in the New Testament In that word is a kind of straitning necessity and as they say an exigengy no less then there is in the word Orcos for from the same word comes both that is of straitning Thereupon comes that common Proverb War and Oaths are voluntary evils and that they may be good they ought to be pressed and expressed as St. Augustine of Oaths sayes wittily either by the Authority of him that gives the oath or at leastwise by the hardness of his heart that believes not So that it is a sin either to swear or to make war except it be at least in some manner exacted and upon some and no light cause Therefore that it may be required or rather that it ought to be the very force of Nature the very force of the term it self evinceth it But whether from the Magistrate this is the second branch Yes surely from the Magistrate So the Divines of old Not onely every body but every soul is to be subject to the Powers Rom. 13.1 Therefore the Powers have power to commit the body to custody by imprisoning it lest it escape And so likewise the soul to commit that to custody by laying an oath upon it lest it should have any subterfuge by which name God himself hath most fitly called an Oath the Bond or prison of the soul Num. 30.13 by which the soul may as it were be tyed up and being so tyed up may be bound to answer appositely and readily But yet it comes nearer If it be lawful for the Master to force his servant to take an oath as Gen. 24.3 Abraham did if a father to his son as Jacob to Joseph Gen. 47.29 if a brother to a brother as the same Jacob to Esau Gen. 25.33 By how much better right is it lawful for the Magistrate to do it to his Subject whose command is more excellent then any other command I adde also about the right settling in marriage of a son if that be lawful as Abraham to his servant of chusing a fitting place of burial as to Joseph of passing away the right of Birth-right as Esau and in private causes I adde also of the least concernment if compared with the publick Then surely by better righr may the Magistrate do it in the common cause of the Commonwealth whose Interest is greater then any other Interest And that is provided for by Gods Law Exod. 12.8 in express terms in the case of a Pawn saith God let them come before the Magistrate In which place the Magistrates are named by the name of God himself and not by any name but by that very name which is taken from the force of an oath as though he should say Let them come before the Oath-givers or those who when they give the Law in Gods stead in his Judgment and in his Name may require his Oath to be taken That is Gods Deputies Psal 82.6 in Gods judgment 2 Chro. 19.8 the Oath of God Eccles. 8.2 therefore to the Magistrate It is lawful to the Magistrate I say as well Ecclesiastical as Civil Before him that is the Ecclesiastical Judge by Law the Woman is commanded to purge her self in a case of suspicion of breach of Wedlock bond Num. 5.19 Before him that is the Temporal Judge by law the man is commanded to purge himself in a cause of suspicion of breach of Social promise or Contract Exod. 22.8 The practice whereof we see and the practice of the Saints is the Interpreter of the Commandments of the Ecclesiastical Judge in Ezra who required an oath in a Matrimonial cause Ezra 10.5 Of the Temporal Judge in Nehemiah who forced an Oath in a cause of Usury Neh. 5.12 Neither hath the pious and religious Magistrate onely right to do this but the Heathen Magistrate too and that to Gods people Zedekiah gave his Oath of Allegeance to Nebuchadnezzar 2 Chron. 36.9 though forced he gave it and rightly too if we believe Ezekiel and afterwards by a sacrilegious boldness he attempted to break it he scaped not unpunished for it Ezek. 17.13 Lastly I adde that this was not lawful to do to their own people onely but also to guests and strangers living within their Territories either for trafficking or any other cause In which regard Joseph now become Vice-Roy of Aegypt imposes an Oath upon his Brethren in a case of Treason suspected though both by Law and by Nature they were Canaanites Gen. 43.3 therefore hence it now appears that it is lawful to impose an Oath and that it is lawful also to the Magistrate But whether is it lawful to do it to the party that is the party guilty or defendant the third thing I propounded Nor can that be called into question Exod. 22.8 He to whom the Pawn was concredited is the party guilty or defendant Num. 5.19 The woman suspected by the jealous husband to have wronged his bed is also the party guilty or defendant but to each of them is this oath to be given nor is it lawful for them to decline it In a few words I will summe it up Whether one deceitfully keeps his neighbours goods or perfidiously deteins his friends goods or restores not to the owner his found goods when he requires them Levit. 6.3 or as it seems to me in any other crime for it is mentioned indefinitely 1 Kings 8.31 in whatsoever he shall sin it is lawful for the Plaintiff or Agent to impose an oath upon the party that is the guilty or defendant or to lay an oath upon him as it is in the Hebrew phrase nor is it lawful for the guilty or defendant party to refuse it whether it be imposed by the Agent or Plaintiff or by the Magistrate Indeed I cannot deny but we are fallen into such times that it may be expedient to impose the oath upon the party Agent or Plaintiff and not onely upon the Defendant for it may happen that they may both prevaricate that is the party Agent or Plaintiff by calumniating and the party guilty or defendant by Tergiversation But if we would take the Law from Heaven from the holy Writ to the party guilty or defendant 't is more necessary to be given Examples are thereof Scarce will you find in the Law an oath laid upon the Agent or Plaintiff but very often may you find it upon the party guilty or defendant Moses renders the reason of it The actor who for the most part is the party
off his posterity 2 Sam. 21.2 Therefore this is not lawful for a King a Commonwealth nor a private man to do Now I conclude So be it there be not danger of loss of life in it in matters and causes which are punished either by pecuniary Mulcts or by imprisonment it is lawful for the Subject to undergo that oath and for the Magistrate to require it But in this point is much doubting this Oath how far it is lawful and in what manner an case Which whilest I treat of all my action is as they call it the pursuing of the Judicial proceedings by which it may be known at length in which way we may go where we may go no further and hereof I see three parts as for as concerns our purpose which are thus designed in holy Writ 1. The admission of the suit or complaint as the Hebrews call it that is the entrance of the cause into judgment out of Isaiah 1.23 St. Paul calls it receiving an accusation 1 Tim. 5.19 The second is the state and position of the cause that is the foundation of the suit or complaint as the Hebrews give it the name out of Deut. 19.13 The Greeks call it the matter to be judged and determined St. Paul if I be not deceived sayes it is an end of strife Heb. 6.16 The third is Inquisition upon the proofs that is as the Jews call it a Pervestigation or sifting of the suit or complaint out of Iob 29.16 the Greeks call it a Structure of the cause St. Paul calls it a confirmation Heb. 6.16 for with the fourth which all men call the Sentence I have nothing to do Therefore these three things are to be in all Judiciary proceedings That the party ought to be lawfully questioned after that the state of the cause then the proofs are to be looked into And in the first part there is no use of an oath that I know or have read of yet that I should enquire hereof some mens error makes me do it which error I shall lessen this day if it may be done who think themselves not sufficiently accused nay they think they shall accuse themselves except an accuser step forth and shew himself and who falsly and rashly suppose and yet they suppose it that that oath which is required of them for the stating of the cause that is the second part that is to be required to the first part this is the admission of the suit or complaint So I propose it thus In every suit or complaint the matter either is so apparent as that it is manifest as well concerning the fact as the person whether the person be deprehended in the deed doing that is as they say taken in the manner as she was Iohn 8.4 Or so with an high hand or as we use to say with a notorious boldness as attempted before the Magistrate and all the Congreation as was Zimri's wickedness Numb 25.8 In which cases so openly acted there was no need of accuser or witness or if it be so that the fact is manifest but the person is unknown as in the deed body found but the murtherer is not known Deut. 21.1 or the person is known but the fact unknown as in Achans case Josh 7.18 In which matter so controverted a man may by the judgment of the Divine Law be called into question four manner of wayes For either one may be brought forth upon some signs or presumptions as in that first piece of Gods justice which all humane justice imitates it was done against Adam without an accuser onely upon signs and presumptions that is that he fled and hid himself amongst the Trees a sign of a guilty mind Gen. 3.8 In the second piece of justice against Cain that likewise was upon signs and presumptions that is Abel appearing no where effusion of bloud being found Cains anger or envy towards Abel foregoing it Gen. 4.6.10 This is the first manner The second is Or one may be brought forth upon the impeachment of another as in that very first piece of justice Adam onely was cited but he being questioned as usually it happens impeaches Eve she likewise the Serpent Gen. 3.12 and so they two hereby were made parties guilty or defendant The third is by Fame or rather Infamy as for the most part suspicion follows in the neck of the facts of wicked men talk or fame follows the suspicion and insinuation or complaint follows the talk or fame And thus was the course against the Sodomites Gen. 18.20 The cry of the sodomites is great I will go down now and see c. saith the Lord. And after the same manner were Inquisitions made both in the Law If it be told thee and thou hast heard it Deut. 17.4 and in the Gospel against the incestuous person 1 Cor 5.1 It is reported The fourth is by Suggestion or Complaint as in Iobs case cap. 1.11 where the Accuser of our brethren as St. Iohn calls him would have made that holy man guilty of Hypocrisie a false crime yet a crime and that partly juridically under which name amongst the Hebrews they were called Masters of the suit or controversie Isaiah 50.8 we translate it Adversary And here the punishment of the offending party was sought after that he might give satisfaction to the person wronged partly as it is called Evangelically wherein one is denounced or reported to the Church where onely the medicine or remedy is sought after that the Church may have satisfaction in cause of scandal In the first the thing it self as we use to say speaks and impeaches the party guilty in the second one guilty person impeaches another in the third the speech of the people is the Accuser in the fourth any one under the proper and true name of an Accuser To this I adde a Fifth but not as these as an ordinary remedy to determine the controversie but plainly an extraordinary one not to be put in practice but in the Valley of Achor that is against the troublers of Israel for so the word Achor sounds that is in some heinous wickedness or the state of the Church and Kingdom being in danger in such cases we run to extraordinary remedies that is to Lots as Ioshua did which in certain causes is not granted Iosh 7.16 In this Ioseph made use onely of his own suspicion Are not you Spies saith he to see the nakedness of the Land ye are come Gen 42 9. and when they denyed yet without sign or token fame or any Accuser he questioned them thrust Simeon into prison and forced the rest to take an oath Nor did they appeal to the Law of Nations or complain that they were used contrary to Law and right For where the peace of the Commonwealth is concerned that is of such moment that I doubt not that God suffers his spirit of jealousie to come upon the Magistrate touching the safety of his Israel no less then he suffers the Husband to have