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
book has by variety of proof so sufficiently made it good already But yet it is worth the setting down what some of our own Countrey-men have in their writings acknowledg'd to the very same purpose and those especially amongst the rest whose interest and high valuation which they pass upon the Laws of their own Countrey will not permit them to ascribe more to the Civil Law then the just truth will bear And it is most observable what King James himself the learnedest of all modern Princes said here in a Speech made to no less solemn assembly then his Lords and Commons of Parliament u 21. Martii 1609. which we have extant amongst his printed works As a King saith he I have least cause of any man to dislike the Common-Law for no Law can be more favourable and advantagious for a King and extendeth further his Prerogative then it doth And for a King of England to despise the the Common-Law it is to neglect his own Crown Yet saith he I do greatly esteem the Civil Law the profession thereof serving more for general learning and being most necessary for matters of Treaty with all forreign Nations And I think that if it should be taken away it would make an entry to Barbarisme in this Kingdome and would blemish the honour of England for it is in a manner lex Gentium and maintaineth entercourse with all forreign Nations But I onely allow it to have course here according to those limits of jurisdiction which the Common-Law it self doth allow it And therefore though it be not fit for the general government of the people here it doth not follow it should be extinct no more then because the Latin tongue is not the mother or radicall Language of any Nation in the World at this time that therefore the English tongue should onely now be learned in this Kingdome which were to bring in barbarisme And in another speech in Star-chamber x 20 Iun. 1616. printed also God forbid saith he the Law of Nations intending thereby chiefly the Civil Law should be barred in this Kingdome and that for two causes one because it is a Law to satisfie strangers which will not hold themselves so well satisfied with other municipal Laws another to satisfie our own subjects in matters of Piracy Marriage Wills and things of like nature And again when he was so mightily pressing to have had an union of England and Scotland under the same policy of Laws as they had but one and the same King in a speech made upon that subject y Ult. Mart. 1607. extant in his printed works he told his two Houses of Parliament that in point of conjunction of Nations the Civil Law ought to bear a great sway it being the Law of Nations These are the expressions of a King the interest of whose Crown and Scepter and the prerogatives thereunto belonging did depend upon the favour of another Law and yet he positively and in down-right termes in the face of all his people avows the Civil Law to be the Law of Nations and that all transactions of Treaty and of Trade with forreign Nations were dispatched by the rule and reason thereof and that the authority thereof was so great in the esteem of strangers that they would rest satisfied therewith when no municipal Law could satisfie them But in that he avers also that when the people of England shall exterminate that Law which must needs be when the practice thereof is quite taken away or thrust into a poor narrow compass their honour will be obscured and they will be in danger to be over-run with barbarisme it was never so well worth the observing as at this present time And it clearly shews that wise and learned King did perfectly understand the true use of the Civil Law for as the language thereof must needs be a means to maintain learning which does civilize soften the minds of men so there is no sort of learning with the which the matter of it does not correspond and participate but above all it does afford more and better rules for civil living and orderly conversation amongst men and for righteous dealing each with other then any other study or learning whatsoever But this practise and usage of the Civil Law in forreign parts is yet better confirmed by the authority of those who studying and professing the Law of England have been alwayes jealous of the rising and growth of the Civil Law in this Nation For though they have desired to keep it low here for what reason I need not mention yet some of them have freely enough owned how much it is in use and practise in other Countreys Sir Francis Bacon in his Epistle Dedicatory to the Queen set before his Maximes of Law after he had told the Queen that Justinian the Emperour did gloriously and yet aptly call the Body of the Roman Laws proprium sanctissimum templum justitiae consecratum a true and a most sacred temple consecrated unto justice he sayes that it is a work of great excellency indeed as may well appear in that France Italy and Spain who have long since shaken off the yoke of the Roman Empire do yet nevertheless continue to use the policy of that Law My Lord Ellesmere Chancellour of England as Sir Francis Bacon was in his speech of the Postnati does expresly deliver that the Civil Law is taken to be the most universal and general Law in the World Sir John Fortescue himselfe Lord chief Justice of England and afterwards Lord Chancellour in King Henry the sixth's dayes in his book wherein he does so highly magnifie and commend the Laws England above the Civil Law yet he could say z De Laud. legum Angliae ca. 9. That Civiles supra humanas cunctas leges alias fama per orbem extollit gloriosa The Civil Laws throughout the whole World are advanced in glory and renown above all other mans Laws Fulbeck also another of the same profession and of great learning does agree with the former in these words a In his parallel part 1. Epistle to the Reader The Roman Laws saith he in the times of Arcadius Theodosius and Justinian recovered their strength and shining to all the Common-wealths of Europe as the Sun to all the climates of the Earth have for their worthiness and necessary use and employment received entertainment countenance and great reward of Emperours Kings and Princes Likewise Mr Sâ—lden a Graduate in the Common-Law but a great Student in all learning and one that seems to have searched narrowly into the state of the Civil Law as it has stood in use and request in other Countreys as well as in England in all times in his additional discourse upon Fleta wholly spent upon that subject owns the entertainment and use of the Civil Law in the Western Countreys of Europe that had left to acknowledge the Roman Empire long before For in that discourse b Ca.
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
or Indicia or taking with the manner or other notoriety of the fact or impeachment by some of the Complices or collusion of the accuser or the not objecting in due time or when the Enquiry tendeth but to a spiritual punishment may severally any of them serve to warrant such enquiry with some observations touching the nature of most of these C. 8. That to proceed sometimes against an offence otherwise then upon Accusation or Presentment or then upon an Appeal or Indictment which two at the Common Law have respective correspondence unto the two former is no diverse much less any contrary or repugnant course to the Laws Statutes and Customs of this Realm This is proved by Common Law Statutes and practice in proceedings informative and punitive with answer to certain objections made to the contrary C. 9. How the second opinion here to be treated of is that no Lay-person may be cited of office in any cause but Testamentary or Matrimonial and that the drift of that opinlon is against proceeding of office in matters criminal The necessary use and equity of proceeding somtimes criminally by the Judges office in Courts both Temporal and Ecclesiastical C. 10. Conteineth an Answer to some further objections made against the conveniency and reasonableness of proceeding against crimes of office C. 11. That the Laws of the Realm do use Enquiries and Proceedings ex officio that they allow it in Courts Ecclesiastical with answer to some objections that are made to the contrary C. 12. Is set down a Reply to the Note-gatherers answers given to certain reasons that have been made long ago for to shew the like course to be also practised in Temporal Courts and an answer to his reasons brought to prove that in proceeding of office there is some contrariety unto the Laws of England C. 13. That the Enquiry ex officio against crimes is allowed both in Civil and Temporal Courts and in Ecclesiastical also by the two Laws Canon and Civil C. 14 Conteineth an answer to such objections as upon the Civil or Canon Laws are brought against all proceedings of office in causes criminal by the Treatisor and the Note-gatherer C. 15. Enquiry and proceeding of office without an accuser and grounded upon some other of the means afore proved sufficient to enter into such enquiry is approved by sundry examples of Scripture C. 16. An Answer is made to such objections as out of Scripture or Ecclesiastical Writers be made against criminal proceeding of office by the Note-gather and others In the third part he concludes upon the whole matter for which his Apology was made C. 1. Of the lawfulness of Oaths What an Oath is and the reason or original formal cause of the use of Oaths C. 2. An Answer to certain doubts made concerning oaths as namely why in Scripture God is said to have sworn how by Oath he is said to be called to Witness An Oath no tempting of God but a part of his Worship Why nevertheless some are repelled from taking Oaths Whether Adjuration be lawful After whose meaning an Oath is to be understood Whether every promissory Oath be simply to be kept Whether an Oath may be dispensed with and how far and whether a Christian may by mutual Oaths contract with him that sweareth by false gods C. 3. Division of Oaths according to the outward form of taking them according to the matter and inward form of them with plain description of every kind of Oath C. 4. That the Ceremonies used in taking and giving of corporal oaths with laying hands upon the Bible or Testament and swearing by the Contents of it are not unlawful C. 5. The true issue of the next Opinion in question Two sorts of crimes and offences prohibited In what causes an Oath here spoken of may not be ministred and the manifold convenience and necessity of an Oath sometimes to be ministred in a cause criminal and penal unto the party with some few objections touching inconveniences thereof answeted C. 6. That Oaths of men touching matters damageable criminal and penal to themselves are urged and acted by Temporal Courts and by the Laws of this Realm C. 7. Wherein are contained Answers to such Objections and Reasons as be made for proof of a contrariety or repugnancy in these Oaths unto the Statutes Laws or Customs of this Realm and a Reply to the Treatisours Answers made unto certain Objections supposed likely to be made in justification of this kind of Oath by the Temporal Laws C. 8. That ministring of such Oaths is by the Law of the Realm allowed unto Judges of Ecclesiastical Courts and some few Objections made to the contrary answered C. 9. That such Oath touching a mans own crime is allowed both by the Canon and Civil Laws how far and in what sort and that the like is establish'd and thought equal by the Laws and Customs of sundry other Nations as well ancient as modern C. 10. An Answer to some Objections pretended to be made against this kind of Oath from the Laws Civil and Canon C. 11. That not only such an Oath may be taken but also being by Magistrates duly commanded ought not to be refused is approved by Scriptures by practice of the Primitive Church and of late times together with a Reply unto certain Answers made unto some proofs here used C. 12. An answer unto such Objections as be pretended to be gathered from Divinity Divines and from the examples of godly men against ministring Oaths unto parties in matters of their own crimes C. 13. Four several opinions of the Innovators against the parties taking of an Oath in criminal causes with Answers also unto their Reasons and Objections C. 14. That a man being charged by authority to discover his knowledge touching some offence which his Christian brother is supposed to have done is bound to reveal it though it may breed trouble and punishment to his broaher and the Reasons to the contrary are answered and refuted C. 15. their Arguments are answered that condemn the ministring and taking of an Oath as unlawfull because they have not distinct knowledge given unto them of every particular before the taking of it and the like course by Examples is upproved lawful and godly C. 16. That after the party hath answered upon his Oath it is neither unusual unlawful or ungodly to seek to convince him by Witness or other trial if he be suspected not to have delivered a plain and full truth and somewhat also in approbation of Canonical Purgation with answers to the Treatisors Objections against them CHAP. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A Summary relation of what Doctor Cosens in his Apology hath asserted and made good by Gods word the practice of the Primitive Christians the opinion of the Fathers the Laws Canon and Civil and the Laws of the Land allowing and warranting them The like practice at Common Law and
at Geneva and other places pretending strict Reformation AS to the proceeding Ex officio or otherwise in the Ecclesiastical Courts according to Law and the due former practise nothing in that late Act is said against it and therefore implicitly at least it is allowed and approved Rati habitio mandato aequiparatur 't is a Rule of Law The Law in that case remains at it was before nothing need be said in justification thereof but only as touching the Oath Ex officio or other Oath not to be administred as there and touching Purgation Touching the Proviso's in that late Act that which forbids Ecclesiastical Judges to exercise any power c. as there and that other Proviso that forbids them to tender or administer unto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment I say touching the former Proviso he hath I conceive given full satisfaction in that his Apology in answering to the objeetions made in his time thereabout Therein also he clearly and fully justifies the proceedings of Ecclesiastical Courts in general and particular cases And to that other Proviso touching the Oath Ex officio or any other Oath and touching Purgation as in that Act I humbly conceive salvo meliore judicio he fully and clearly evinces it that the law and practice thereof was just to tender and administer the Oat◠ex officio or at the instance of a party for the finding ou◠or Simony Adultery and other crimes and deeds of darkness difficidimae probationis so that evil may be removed from the Land Alwayes provided that there was just cause for the Ecclesiastical Judge so to tender and administer that Oath that is that there was before such oath was so administred or tendered to any party due proof made of a common fame that the party was guilty of such crime touching which such oath was to be ministred or at least there was as in some cases denunciatio Evangelica or canonica or insinuatio clamosa or other sufficient indicia praesumptionis or suspicionis to induce the Judge to tender that oath and so the practice alwayes was and if it ever was otherwise as I believe that will scarcely be proved it ought not to have been He sets down the due cautions that ought to be had when it is very probable that the person to whom that oath is tendered will forswear himself then to forbear it and that in capital crimes to the danger of loss of life or limb it is not the practice in any Courts to administer such oath for that very fear of Perjury it being too much to be feared that too too many would rather forswear themselves then endanger either life or limb though in some places of Scripture it appears that even in such cases such oaths have been administred The Father of lies could speak truth in such a case Job 2.4 Skin for skin or rather as some learned in the Hebrew would have it Skin after skin and all that a man hath will he give for his life There also he shews the weakness and inconcludency of that vulgar Saying Nemo tenetur seipsum prodere or accusare being indeed the trite and general objection That a man is not properly said to betray or accuse himself when as publick fame or other sufficient indicia presumptions or suspicions have accused him these are instead of the accusers and it seems dis-ingenuous at least in those especially that pretend to Learning and have or might have examined the Canons and Ecclesiastical Laws in that point to urge one piece of a sentence and leave out the rest where they found or might have found that sentence Nemo tenetur seipsum prodere or accusare they did also or might have found that which follows in that sentence viz. Sed proditus per famam tenetur seipsum ostendere innocentiam suam purgare Mat. 4 6. The accuser of his brethren cited Scripture to our Saviour sayes he He shall give his Angels charge concerning thee and in their hands they shall bear thee up c. leaving out that in the Text that follows after these words Psal 91.11 He shall give his Angels charge concerning thee that is to keep thee in all thy wayes which alters the case That note or comment upon the Law or if they will needs call it a Rule or Maxime it matters not Nemo tenetur seipsum prodere vel accusare sive propriam turpitudinem revelare is to be understood in crimes simply secret and which are no wayes disclosed or come to light But when such secret sins are by some of those wayes that open a way to enquiry of a person supposed criminous come abroad and so in some sort are manifested then those former rules cease and that of St. Chrysostom comes in Homil. 31. ad Hebraeos Non tibi dico ut te prodas in publicum neque apud alium accuses but upon such disclosing then Proditus tenetur seipsum ostendere innocentiam suam purgare This is for the avoiding of scandal and that the party may be reformed Therefore doth Aquinas himself reason thus Thom. 2.2 Cum quis saith he secundum ordinem juris à judice interrogatur non ipse se prodit sed ab alio proditur dum ei necessitas respondendi imponitur per cum cui obedire tenetur As for tendering the Oath to the party where there is an accuser that is not done upon the crime till the fame be proved or sufficient presumptions circumstances indicia or suspitions or semiplena probatio the oath of one sufficient witness at least to induce the judge to give that oath though penal in some sort to the party This practice he proves consonant to Gods Word to the practice of the primitive Christian and the opinion of the holy Doctors and Fathers of the Church as also consonant to the practice of Geneva and other at least seemingly strictly reformed Churches and to the practice of all Christian Nations and other Nations not Christian guided onely by right reason and the Law of Nature as also that by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that oath the Ecclesiastical Laws and Canons being full and clear in that point Then he shews how the proceeding at Common Law in this Land is the same not onely in some criminal but civil causes also For private debts 'twixt private persons penal to them as in Wagers of Law sometimes for a greater sometimes a lesser debt 'twixt two private parties with the parties oath that is accused and his Compurgators too even as in Purgation Canonical in the Ecclesiastical Courts together with other Purgation or Decisory Oaths
at Common Law Proceedings in Chancery with the several species and kinds of cases wherein such Oaths at Common Law are tendered being very numerous and are by him cap. 6. in the third part of his Apology and other parts thereof reckoned up and fully set forth And if this may be done in civil causes ought it not much rather be allowed the Church in criminal which works onely medicinaliter to reformation the Common-wealth works ad poenam the Church not so this to the amendment of the party to bring him to a voluntary submission and to take away the offence and scandal which he hath justly given to his Neighbour and to lead a new life that perhaps to the loss of liberty corporal punishment or livelyhood at least besides the infamy of being convicted of doing dishonestly and unworthily CHAP. V. That it is consonant to Gods Word to give such an Oath Ex Officio or otherwise EVery soul is to be subject to the Higher Powers Rom. 13. This is to be understood in all commands not contrary to Gods Word Acts 5.29 in such comes in the Apostles rule It is better to obey God then man That the giving such an oath is not contrary to Gods word An oath duly imposed by the Magistrate necessitates the Subject to take it as appears by the commandment of God himself Thou shalt the Lord thy God and serve him and shalt swear by his name The like is given by the Lord in the Prophet Jeremy O Israel thou shalt swear The Lord liveth in truth in judgment and righteousness Joshua gave charge to all the Magistrates of Israel Jer. 4.25 that They shall not make mention of the gods of other Nations nor shall cause to swear by them Saul did not onely charge the people with an oath Josh 23.2 7. but made them vow with a curse not to eat any food that day till night therefore one of them reported to Jonathan Sauls son 1 Sam. 14. That his father had made the people to swear Some would cavil at this as but an Adjuration and would without reason difference that from an Oath but in that Chapter 1 Sam. 14. it is four several times called an Oath The wise King Salomon imposed an oath upon Shimei in a cause capital to him Did not I make thee saith he swear by the Lord c. 2 Kings 42. So King Saul urged David to swear unto him 1 Sam. 24. for a private offence only between Neighbours King Salomon testifieth that a necessary oath of Purgation may be required by the Complainant 3 Kings 8. When a man shall trespass against his neighbour and he lay upon him an Oath to cause him to swear c. 2 Chron. 34. King Josias made a covenant and vow and caused all that were found in Jerusalem and Benjamin to stand to it Neh. 5.12 Nehemiah caused the Priests to swear c. It is assigned for a special mark of a Godly man To swear to his neighbour and not to disappoint him though it be to his own hinderance Num. 30.3 Psal 15.4 Abraham said thus to his servant I will make thee swear by the Lord God of the Heavens c. this in a private cause Gen. 24.3 much more a Magistrate in a cause wherein the Commonwealth or Church of God hath Interest to have it sincerely dealt in Jacob moved Esau to the sale of his birthright Gen. 25.33 and took an Oath for confirmation of it A man supposed to have born false witness against another is thereof brought in question Deut. 19.17 and re-examined if it be objected it was not upon oath by consequence of reason it must be upon oath when what he has said before upon oath is re-examined and this in a case very penal to him The oath of Adjuration is very frequent in Scripture Prov. 29.14 about not declaring cursing which he heard By the History * Jud. 17.1 2. of Micah as we are †1 Cor. 10.3 bound to do all to the glory of God so it belongeth to the glory of God for a man by due presumptions burdned with a crime and charged by the Magistrate to confess of himself as appeareth by the history of Achan The lot fell upon him but this was but an inducement to ground a special Inquisition against him if hereupon he might have been executed Joshua needed not to have required any further confession of him but he goes further with a most solemn Adjuration Lev. 5.1 in those dayes used for an oath the Hebrew word signifying both and being translated sometimes juramentum and sometimes adjuratio Son give glory to the Lord God of Israel c. Josh 7.9 albeit the punishment was capital Ezra adjured the Chief Priests c. Calvin in his Institutions gathereth Ezra 10.5 that Achan took an oath When a man is found secretly murdered in the field and the murder is not known nor suspected yet all the Elders of the next City thereunto should use certain Ceremonies and then swear That their hands have not shed this bloud nor their eyes have seen him that shed it Deut. 21. In Leviticus a certain Sacrifice is to be made for certain sins amongst which this is one as Arias Montanus translates it out of the Hebrew If a soul or a man shall have sinned and have heard the voice of an Adjuration or Oath c. That which is here said Lev. â—5 â— if he have heard the voice of an Oath the Geneva Translation offereth it thus in the Margin as if it were nearer to the Hebrew then the other in that Text viz. If the judge hath taken an oath of any other Exod. â—â— When a man delivers money of stuff on trust to be kept by his neighbour if it happen to be imbezelled away and the thief be not certainly known or found by the Low of God be must take a necessary oath of purgation and enquiry The same also is a little after established by God touching any quick goods happening to be left in deposito Ibid. v. 10. A sacrifice of Atonement for such a sin of Perjury is prescribed If any do sin saith the Lord any deny unto his neighbour c. If a man be moved with a jealous mind against his wife Num. 5.14 she is not onely to be charged with an oath but to have further tryal to drink the bitter waters Jer. 38.14 When the Prophet Jeremy was charged by the King in a generality to answer that which he would aske him the Prophet promiseth so it should not be capital to him he would answer it Whether upon oath or not oath for before God 't is the same no doubt he answered the truth (a) Jer. 37.13 The same Prophet when he was charged with a particular high crime refused not to answer or bid them prove it but roundly answers it (b) 2 Kings 5. So Elisha
from such shifts of answering dangerous questions propounded to them by Heathen Magistrates or from answering untruths to them Tertullian is herein very plentiful especially in his book called Apologeticon A Christian saith he if he be indicted or denounced to the Magistrate be rejoyceth in it if he be accused he propoundeth no defence when he is interrogated he mostwillingly confesseth and when he is condemned he giveth them or God thanks Tertul. in Apol. c. 1. And much more hath Tertullian to this purpose St. Aug. serm 28. de verbo Apost cap. 6. Augustine doth plainly establish and allow of Oaths taken concerning a mans open offences being indeed such also in their own nature If perhaps saith he thine Oath he urged meaning a Decisory oath be exacted of thee by a private person say not I will not swear for it cometh of evil which though doest but yet of his evil that exacteth it of thee insomuch as though hast no other means but thine oath to purge and clear thy self of the matter in handling Aug. bid c. 10. In another place he speaks and allows of oaths taken in way of purgation of one suspected for theft and in another place he sayes and approves of the same practice at Millain Aug. ep 137. this was in a civil cause criminally moved and for theft a crime though not simply capital by the Civil Laws In another place In denouncing others saith he Aug. in qu. Lev. speaking of Denunciation of faults to the Magistrate this moderation is alwayes to be used by us that we relate it unto such which may rather help than hurt him in case the party shall swear falsly either by correcting him or by deprecation to God for him so that he will by confessing his fault apply this remedy unto himself Chrys hom 16. ad pop Antioc St. Chrysostom alloweth of Decisory Oaths or Wagers of Law and testifieth that such necessary oaths were in those times imposed to exact mens confessions and whether they had stollen some certain thing or not This he allowes touching meer crimes in their own nature and that upon the instance of a Plaintiff particularly interested but in his goods and chattels This kind of oath was not onely allowed in the old Church but commanded to be put in use as lawful and consonant unto Gods Word against persons convented and had in suspicion even in one Church which the most and hottest oppugners of this oath do reckon to be best yea and almost the onely Reformation that may rightly be so called For in the Discipline of France concluded of in the national Synod there 1559 1561 1563 1565. it was thus declared The faithful may be constrained by the Consistory to tell the truth so far forth as it derogateth nothing from the authority of the Magistrate They may be constreined The Ecclesiastical Senate or Consistory act 12. say they but there is no compulsion but either Civil which they will not arrogate to themselves as torture or racking imprisoning or fining c. or else by the parties oath which upon pain of Perjury if he once swear or of conviction if he will not doth as it were constrein a man to say truth And that an Oath is meant by the Canon of the French Church we are taught both by the History of Camperell a French Minister at Geneva as also by that of those who danced in Widow Balthazar 's house there Camperell was appointed by the Consistory of Elders there Inter epist Calvin in folio pag. 421 422. to be examined upon his Oath upon certain Interrogatories whereof also two concerned what he had in his very purpose and intention of mind Calvin Farello pag. 64. epist in folio The Dancers because at first they denyed it were put to their corporal oaths to declare the whole truth of that merriment And all dancing there is held as an offence and grievous crime as appears by the Ordinances of Geneva and by the very last frame of Discipline concluded 1571. by the French Churches For Purgation Canonical as it was used in the Ecclesiastical Courts of this Kingdom in a word 't is the same in these Courts in a criminal cause as at Common Law a Wager of Law is in a civil cause differs no more then thus this is touching our Lands or goods that touching our Good name and Credit It is so far from being condemned by good and godly Bishops in ancient times that by whole Councils it hath been prescribed Let a Lay-man saith one Council Concil Tribur canon 21. if need be purge himself by his Oath and let a Priest by the consecration of the holy Sacrament be interrogated And another Council thus Let a Priest if he can purge himself of the crime with seven of his Order and a Deacon with three Ivo lib. 5. ex concil Agath So was it decreed by a third Council If a Priest or Minister be infamed amongst his charge and it cannot be proved before the Bishop by witness let him be suspended untill be perform due satisfaction lest the faithful people be scandalized But as our Elders have taught then is the satisfaction due and orderly when according to the Canons or as the Bishops shall judge fit be joyneth unto him seven Compurgators and swears by the holy Gospel laid afore him that he hath not committed the crime laid unto him When he is thus purged then let him again freely execute his office Ivo ibid. ex concil Herden And in another Council we find Purgation prescribed for theft and also for Adultery Concil Worm and according to the prescriptions of these Canons and many others that might be alledged examples of sundry ancient Bishops in the Church that have themselves made their own Purgation for avoiding and removing scandal and offence Sixtus the third and ancient Bishop of Rome 12 qu. 4. c. Mandastis but upon the accusation of one Bassus did willingly make his Purgation upon his oath in a Council And so did Leo Ivo Carn l. 5. another ancient Bishop of the same See purge himself with twelve Bishops Gregory the Great enjoyned unto * Greg. ep 23. ad Iustin Presb. Leo †Id. ep 8. l. 2. Memius and * Id. ep 8. l. 7. ep 79. Maximus three Bishops to clear and purge themselves of several crimes by their oaths whereof the last was for Simony Innocentius also caused the Bishop of Trent to purge himself likewise of the like crime of Simony And what be the Oaths touching Goods stollen or imbezelled which were left with a man upon trust appointed in Exodus Exod. 22.7 8. and those in Salomons Prayer at the Dedication of the Temple other than oaths of Purgation of a crime 2 Kings 8.31 imposed by the party having an interest Lev. 6.2 Likewise the oaths mentioned in Leviticus concerning goods denyed that are pretended to have been left in deposito
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
long and great drought The King sent all over the Land to seek for him and to have him apprehended these especially that were thought to be the Professors of the same Religion all denyed him it would not serve the turn he put them to their oaths and they refused them not yet was there none to accuse them at all Yet for the good as it was supposed of the State this course was well allowed So have we Interrogatories administred and the parties sworn to them in cases of the fifth sixth and seventh Commandment And if this may be done in civil causes and be not unlawful in them we argue that much rather it ought to be allowed the Church in her proceedings First for that both Commonwealth and Church be to remove evil yet work they not both one way for the Commonwealth as it is well known doth agere ad poenam the Church never so but doth onely agere ad poenitentiam seeketh to alter mens minds from the evil courses they have entered into seeketh by making them to yield to a voluntary submission themselves to take away the scandal whereof they have been a cause Now there is great odds between those and great reason more means be allowed those that seek for nothing else but the reformation of the party and his souls health and those that end their proceedings alwayes in the loss of life limb or liberty or living as doth the Civil Besides it is well known the civil power hath many wayes and means to sift out the truth though not by this That the Church if Accusations cease hath none but this onely Indeed therefore most proper and peculiar to her because an oath is the bond of the Soul and they be the sole causes the Church hath to deal with The inconvenience is none at all for admit a party should thereby disclose his offence yet groweth thereby no damage unto him in that his repentance onely and reformation is thereby sought and wrought and nothing else Thus reasons the Church but for her practice taketh her ground to be full and good out of the fifth of Numbers in a case of suspected Incontinency which is meerly Ecclesiastical And again out of 1 Esdras 8. 9. in a case Matrimonial which is meerly Ecclesiastical also In both which Interrogatories are ministred with oath the proceeding being by Enquiry without any Accuser at all And that which is to be noted in the case in Esdras they are no wayes forced to it but desire to take their oath first and be examined after Then which there is no case more like to the proceeding at this day against which exception is taken Out of these six it is manifest enough how agreeable to the Will of God this proceeding is But beyond all this is the seventh in the fifth of Leviticus where it appeareth that God is so careful to have all evil removed as leave is given by him upon a fault committed the party being unknown to lay a solemn charge and to bind it with a curse and that at large to take hold of any that were privy to the fault done and did not come and reveal it Which course was clearly of the nature of an Oath as doth plainly appear by 1 Sam. 14. where it is said four several times that Saul bound all the people with an oath not to taste of any thing till the Sun went down that they might pursue their enemies without any intermission Which oath is judged by the Expositors to have been nothing else but the publick denouncing of a curse or adjuring them in the name of god nor to do it seeing it is held a thing impossible that he should call so many thousands in particular to take every man an oath the time being so short and he in such haste to pursue the Enemy But it is a thing as Nazianzen saith not unusual either before Christ or since in the time of the Primitive Church to make such adjurations whereby the Church ever thought quod poena commissi revolvitur in conscium that he that concealed was subject to as great a curse as he that committed it By all which it is evident that such proceeding by oath may be and is not unlawful This as before is by some said to be Dr. Davenants late Lord Bishop of Sarisbury and others say it was the late Lord Bishop of Winchesters that most learned and pious Bishop Dr. Lancelot Andrews Whose soever it was it seems it was to give satisfaction to the Lords of the Council touching such proceedings Ex officio and upon oath and 't is to be believed it gave them satisfaction the Law so long after continuing the same and no wayes altered The Theological Determination of Dr. Lancelot Andrews afterwards Lord Bishop of Winchester had in the publick Divinity-Schools in Cambridge in the Moneth of July 1591. upon this Question following Rendred into English for the use of the meer English Reader Whether by Gods Law it be lawful for the Magistrate to require an Oath of the Party that is the party guilty or Defendant and in what case and how far it is lawful TOuching the questioning of parties guilty or Defendants by the Religion of an Oath as also of such parties taking such Oath or lawfully declining it of late hath a Question arose Whether by Gods Law it be lawful for the Magistrate to require oath of the party that is the party guilty or defendant and in what case and how far it is lawful This question to prevent any confusion upon your memory or my own I will divide into five branches and indeed in this short two dayes space I have not bethought my self of a more distinct method 1. Whether it be lawful to exact or require an oath 2. Whether it be lawful for the Magistrate to do it 3. Whether from the guilty or defendant party 4. Whether it be lawful in every cause or not in capital causes but such as receive a milder punishment 5. How far this is lawful and in what cases Of which questions the first three have nothing of question in them if we be found in Divinity therefore I shall in few words dispatch them And first of all it is a sacred right that such an oath may be lawfully required In which matter I think it is very behooveful as Christ did in the case of Divorcement first of all to enquire what every thing was in the beginning in the revolution of time many things are changed the beginning is the most certain rule Therefore I aske where and when the first mention of an oath is made in Scriptures I finde Gen. 24. Abraham forcing his servant to take an oath in these words and with this ceremony Put thy hand under my Thigh and I will make thee swear that thou shalt take a wife for my son of my Kindred So the first oath mentioned in Scripture is here expressed and as it is the most ancient and first so it
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
not be good just and lawful and after the same Matrimony solemnized and consummate by carnal knowledge and also sometime fruit of children ensued of the same Marriage upon pretence of a former contract made and not consummate by carnal copulation for proof whereof two witnesses by that Law were onely required been divorced and separate contrary to Gods Law and so the true Matrimony both solemnized â—n the face of the Church and consummate with bodily knowledge and confirmed also with the fruit of children had between them clearly frustrate and dissolved Farther also by reason of other prohibitions then Gods Law admitteth for their lucre by that Court invented the dispensations whereof they alwayes reserved to themselves as in kindred or affinity between Cousin-germans and so to the fourth and fourth degree carnal knowledge of any of the same kin or affinity before in such outward degrées which else were lawful and be not prohibited by Gods Law and all because they would get money by it and kéep a reputation of their usurped jurisdiction whereby not onely much discord betwéen lawful married persons hath contrary to Gods Ordinance arisen much debate and suit at the Law with wrongful veration and great damage of the innocent party hath béen procured and many just marriages brought in doubt and danger of undoing and also many times undone and lawful heirs disherited whereof there had never else but for his vain-glorious usurpation béen moved any such question since fréedom in them was given by Gods Law which ought to be most sure and certain But that notwithstanding Marriages have been brought into such an uncertainty thereby that no Marriage could be surely knit and bounden but it should lye in either of the parties power and arbiter casting away the fear of God by means and compasses to prove a precontract a kindred and aliance or a carnal knowledge to defeat the same and so under the pretence of these allegations afore rehearsed to live all the dayes of their life in detestable Adultery to the utter destruction of their own souls and the provocation of the terrible wrath of God upon the places where such abominations were used and suffered Be it therefore enacted by the King our Soveraign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same That from the first day of the Moneth of July next coming in the year of our Lord God 1540. all and every such Marriages as within this Church of England shall be contracted betwéen lawful persons as by this Act we declare all persons to be lawful that be not prohibited by Gods Law to marry such being Marriages contracted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had therein betwéen the parties so married shall be by authority of this present Parliament aforesaid déemed judged and taken to be lawful good just and indissoluble notwithstanding any Precontract or Precontracts or Matrimony not consummate with bodily knowledge which either of the parties so married or both shall have made with any other person or persons before the time of contracting that marriage which is solemnized and consummate or whereof such fruit is ensued or may ensue as afore and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise And that no reservation or prohibition Gods Law except shall trouble or impeach any marriage without the Levitical degrées And that no person of which estate degrée or condition he or she be shall after the said first day of the Moneth of July aforesaid be admitted to any of the Spiritual Courts within this the Kings Realm or any his Graces other Lands and Dominions to any processe plea or allegation contrary to this foresaid Act. Rep. 1 2 P. M. 8. Rep. 1. El. 1. This Act was not many years after repealed as followeth 2 3 Ed. 6. cap. 23. Part of the Statute of Precontracts repealed WHereas in the two and thirtieth year of the reign of the late King of famous memory King Henry the eighth because that many inconveniences had chanced in this Realm by breaking and dissolving good and lawful marriages yea whereupon also sometime issue and children had followed under the colour and pretence of a former contract made with another the which contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the marriage which they liked not and to be coupled with another there was an Act made that all and every such marriages as within the Church of England should be contracted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had between the parties so married should be by authority of the said Parliament deemed judged and taken to be lawful good just and indissoluble notwithstanding any precontract or precontracts of Matrimony not consummate with bodily knowledge which either of the persons so married or both had made with any other person or persons before the time of contracting that marriage which is solemnized or consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly appear Sithence the time of the which Act although the same was godly meant the unrulinesse of men hath ungodly abused the same and divers inconveniences intolerable in manner to Christian ears and eyes followed thereupon women and men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the contract of Matrimony they might have whom they more favoured and desired they could be contented by lightnesse of their nature to overturn all that they had done afore and not afraid in manner even from the very Church door and Marriage feast the man to take another spouse and the espouse to take another husband more for bodily lust and carnal knowledge then for surety of faith and truth or having God in their good remembrance contemning many times also the commandment of the Ecclesiastical Iudge forbidding the parties having made the contract to attempt or do any thing in prejudice of the same Be it therefore enacted by the Kings Highnesse the Lords Spiritual and Temporal and the Commons in this present Parliament assembled that as concerning Precontracts the said former Statute shall from the first day of Day next comming cease be repealed and of no force or effect and be reduced to the estate and order of the Kings Ecclesiastical Laws of this Realm which immediately before the making of the said Estatute in this case were used in this Realm so that from the said first day of Day when any cause or contract of marriage is pretended to have been made it shall be lawful to the Kings Ecclesiastical Iudge of that place to hear and examine the said cause and
having the said contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding solemnization cohabitation consummation and fractation as it becometh man and wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the Kings Ecclesiastical Iudge by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never been made any clause article or sentence in the said Statute to the contrary in any wise notwithstanding Provided alwayes and be it enacted that this Act do not extend to disannul dissolve or break any marriage that hath or shall be solemnizated and consummated before the said first day of Day next ensuing by title or colour of any Precontract but that they be and be deemed of like force and effect to all intents constructions and purposes as if this Act had never been had ne made any thing in this present Act notwithstanding Provided also that this Act do not extend to make good any of the other causes to the dissolntion or disannulling of Matrimony which be in the said Act spoken of and disannulled But that in all other causes and other things there mentioned the said former Act of the two and thirtieth year of the late King of famous memory do stand and remain in his full strength and power any thing in this Act notwithstanding Stat. 1 Eliz. 1. By these the inconveniency appeareth of taking away or altering an ancient long-settled Law practised long in all Christian Countries as this way which had it not been good probably the inconveniency and hurt of it had appeared in so long a time and the Law for the Oath Ex officio and Purgation is of like antiquity and practice in all Christian Countries without inconvenience or hurt thereby arising as yet that I ever could hear of therefore such Laws ought to be deeply weighed and considered of before they be repealed or altered And now that I am speaking of repealing and altering old Laws and making new I thought fit to close this Tract with some Notes of mine drawn up almost all of them in the time of the usurped Government and some after His Majesties restauration and communicated to the sight of some of Quality touching the repealing or altering of some old Laws and making new Some are already past and effected as that for the Lords the Bishops sitting again in the Lords House in Parliament and other things These I offer with all humility to be considered of if it shall by those in Authority be thought fit otherwise to be as unsaid Protesting that I retract as before any thing which is here mentioned that shall appear contrary to Gods Word His Majesties Prerogative or the Laws of the Land or the Just policy and government of any of His Majesties Dominions Touching Parliaments AS a Parliament well constituted and acting regularly Parliament proceedings conduces much to the happinesse of King and Subject so any exorbitancy or deviation therein of which surely all unbiassed men cannot but confesse we have had too much sad experience in the Long Parliament works the contrary corruptio optimi pessima In the time of the Long Parliament some as it were idoliz'd it even almost to an opinion even of Infallibility of which they have made too much advantage to the misery of King and People Some advised then that that great Wheel that great Court should have had its sphere of activity it s known certain bounds publickly declared and not have been like a great River prodigiously overflowing all its banks and bounds Such a Parliament acting regularly is' t not probable the Members thereof would not so much have thirsted to lengthen much lesse to perpetuate it They were called up to consult may not he that calls his Counsellor forbear consulting him when he pleases and dismisse him The extent of an Ordinance of Parliament Ordinance of Parliament having by some been tentor'd then even almost to Infinity might it not have been precisely circumscribed and the exact definition of an Ordinance given As also the just privileges of Parliament explicitely have been made known Privileges of Parliament that the Subject might not then have sworn or promised or protested to have maintained and observed them and yet could not possibly know what they were That due care should have been taken that they might have been observed and kept inviolable on all sides neither diminished nor scrued too high and both the Members of the Houses and the People to have had their just rights entire and for this purpose that that Protestation then put in by the Lords Spiritual the Bishops The Bishops Protestation with their Petition to have the force removed that kept them from the Lords House should have been well consider'd on and the right of Protestation in Parliament declared and maintained being a great privilege And whether after a just Protestation unjustly rejected and the Members kept out of the House by force that so protested and petitioned whether the other Members could then have proceeded further in the House In the late Kings time in the beginning of his Reign when the Earl of Arundel was imprisoned in the Tower about his sons marriage of the Duke of Lenox's daughter being of the Bloud Royal without the Kings consent the Lords would do nothing in their House till he was restored in regard he was committed onely for a misdemeanour and neither for Treason Felony nor breach of peace in which cases they then confessed a Member of Parliament in Parliament time might be kept prisoner The King none of the three Estates And the Lords Spiritual being one of the three Estates as 1 Eliz. 3. and elsewhere and the King being none of the three Estates the contrary whereof hath been falsly held but the Head and the Lords Spiritual and Temporal and the Commons being but Members and further the Lords Spiritual being one of the greatest Estates of the Realm as 8 Eliz. 1. Some doubted whether one of the Estates can destroy another and whether that come not near the contradicting that Axiom that the Parliament cannot be Felo de se whether that concerns not the Lords Temporal and Commons as well as the Lords Spiritual As for His late Majesties assent 't is known how far the prevalent power in both Houses then carried that and other things too to the misery of the Kingdom Who knows not in what condition the King then was forced to flye by reason of the tumults from Westminster to remoter places And as touching that Act of Parliament for their expulsion out of the Lords House it is not to be forgotten that when it was first brought into the Lords House it was rejected and ought not to have been brought in again that Session yet afterwards it was contrary to the order and course of Parliament brought in again when a great part of the Lords were absent if
be amended The stealing of men or women Stealing of men c. girles or boyes by these extraordinary thieves called Spirits or others to be carried into remote Plantations where probably their Parents shall ever hear of them Shall we provide good Laws against the stealing of our Cattel and our Goods and not of our Children Such kind of Plagiaries have been more taken notice of in other parts and severely punished St. Paul 1 Tim. 1.10 amongst those against whom the Laws are made reckons up the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Men-stealers And also Against delays in Courts if thought fitting that a select Committee should be appointed to consider of the dilatory proceedings in all Laws both Ecclesiastical and Temporal delaying of justice being almost as bitter as injustice and the promise is as well not to delay justice as to do justice many instances might be given of delayes in justice and perhaps none more then in actions upon the Writ of Formedon especially where there are many Copartners which I have heard some Common Lawyers complain of And also that sueh a select Committee should consider of Fees in all Courts Fees in all Courts and to fix a settled rule for them that onely such may be taken as cannot justly be grievous to the Subject and yet may be sufficient for the Officers that receive them due consideration being had of their respective qualities pains charges and all incidents and circumstances concerning them and of the great rates of all commodities raised exceeding highly since the time that such Fees were settled especially in Ecclesiastical Courts 21 H. 8. this hath alwayes been a consideration for the raising of Fees And also Against the non-examining of witnesses upon oath in the Defendants defence if it shall be thought fitting that the practice of the Laws touching Non-admission of witnesses to be sworn upon oath in defence of the party prosecuted against by the King should be amended And whether it seem not strange to some that A. B. being indicted at London for killing C. D. at Barwick upon Tweed in such a place there on such a day about such time of the day and the accused party endeavouring by the negative pregnant to defend himself would prove that that very day he was perhaps at St. Michaels Mount in Cornwal about the same time of the day and so could not be then at Barwick and he produces sufficient witnesses upon this yet they must not be examined upon oath and why should the Jury rather believe witnesses without oath then sworn witnesses especially when they hear no just exceptions against the sworn witnesses which haply the Defendant cannot at least upon an instant give perhaps having not heard of them till the very time of their production against him at his tryal and the cause being heard so summarily as is usual and so exceeding small time of defence given that he cannot possibly enquire after them to refute their testimony by just exceptions against them The usual answer is Witnesses must not be examined upon oath against the King as though it concerned not the King as much to save a guiltless man as to hang a guilty It was accounted a good speech of that Roman Emperor that said Mallem unum servare civem quam decem occidere hostes And also if it be thought fitting Against the examination of witnesses in the hearing of one another that witnesses should not be examined as usually they are at our common tryals both in civil and criminal causes openly in the hearing of one another when it is to be feared that it hath happened sometimes that the craftiest witnesse has been put on to speak first and he hath thereby given aim dangerously to the rest Should any object that in such summary proceedings it cannot well be otherwise May it not be answered that 't is to be feared there may be more haste then good speed and they might be examined privately and apart not in the hearing of one another even in such summary causes almost in as short time and according to the course of the Civil Law that examines so apart their testimonies when all taken might be published and if need be even in their own presence to confirm them viva voce Daniels hearing of the cause 'twixt the two Elders and Suzanna seems to be summary and yet he takes that course had he not done so probably it had gone hard with Suzanna for it scarce can be supposed but if the two Elders had been examined in the hearing of one another they would have jumped in their testimony and not varied as they did in the species of the Trees no doubt the latter would have concurred with the former And also That persons wrongfully accused may have reparations from the accuser if it be thought fit that though the parties be accused in the Kings behalf as commonly they are in cases of Extortion or other crimes of offences yet if upon the traverse they defend themselves and prove themselves to be guiltless they should have due reparation both in point of reputation and trouble and charges from the party that caused them to be so indicted otherwise 't is very possible and probable especially in point of supposed Extortion for any man to be undone when one or many malitious or ignorant men or both may so and very often indict any man who though he prove himself never so guiltless and that it is no extortion but that the accuser was mistaken and that it proceeded from his ignorance or malice or both yet he shall have no reparation and it is well known that some so indicted could have proved themselves guiltless but knowing it was very chargeable and to have justified themselves so often as some malicious or ignorant men would have indicted them would have quite ruined them in their fortunes therefore to prevent that have betrayed their own innocence confessed themselves guilty of the accusation and paid the Fine or Mulct as many degrees easier This is hard Crudelis est sibi ipsi qui famam suam negligit what then qui prodit May it not be enquired then if it be not fitting that both a more easie and less chargeable course might be taken upon the traverse and also that the guiltless accused party should be duly repaired both in reputation and in charges and trouble though I am not so rigid as to think upon a Lex talionis but in some few special cases Also That the Act for abolishing the Court of Wards and Tenures may be repealed if it be thought fitting that the Tenures and Privileges taken away from His Majesty in that Act of abolishing of the Court of Wards and the Wardships also should be restored onely if any abuses have been crept in in the execution they may be regulated and amended as that very able and most industrious Gentleman Fabian Philipps Esquire hath learnedly aad fully set forth in that book of his
inter praesentes tenet sayes q Lib. 47. dig de re Judic Paulus Those that are in Court onely are bound by that which is decreed Neither shall a man lose his right for want of witnesses to prove it for if the matter was transacted between him and his adversary onely so that his adversary being brought upon his Oath must need confesse the whole matter the Law will enjoyn a man to answer though against himself and to his own prejudice rather then that the truth shall suffer and wrong shall prevaile I may take the same advantage also if my witnesses live after off or that I would avoid the trouble and charge of examining them or that my adversary will confesse more to my benefit then my witnesses will be able to prove And he that is cast by his own confession is more powerfully condemned then he can be by any kind of evidence whatsoever r Confessio est probitâ—o probata Neque ulla est probatio illa major l. 1. Dig. De confess Vulteii Jurisp Roman lit 2. cap. 2. for that cannot be subject either to mistake or falshood as other testimony may be But witnesses are then of use if he denies what I charge upon him Who if they be farre distant or through Scknesse Imprisonment or other occasions be not able to come the Law hath a ready way to relieve me for I may have a commission to examine them where they live It were too great an oppression that I must lose my right because my witnesses cannot be brought to the Barre Insomuch as if they be travailed into forreign parts I shall have Letters of Request granted me to the Magistrates of the place where they remain praying them to examine them upon the matter in issue and to transmit their testimony else regularly by the Civil Law they are to be examined in open Court that it may be seen whether their countenance does not contradict what their tongues declare Å¿ Lib. 3. Sect. 3. dig de Test Gothofred ibid. Neither does the Civil Law require direct and positive proofs onely but it will admit of strong and forcible presumptions also that by arguments of conjecture drawn from one thing to another brings forth the certainty of the thing in issue Par est probationi praesumptio quod quidem ad effectum attinet quia pro probatione habetur sayes t Parat Dig. de prob praesumpt num 14. Wesenbeck Presumptions are equivalent to proofes and there is the same effect in both And if a presumptive proof were not as effectual to carry the right as any other kinde of evidence in vaine did Menochius bestow his paines when he made that very long and most elaborate Treatise of that subject onely But yet no proof whether it be presumptive onely or whether it be direct and evident to the thing it selfe is sufficient except it be made out by the testimony of two witnesses for by that Law Testimonium unius est testimonium nullius One witnesse and no witnesse at all is all alike And so Constantine the Emperour hath very emphatically declared in these words Manifestè sancimus ut unius omnino testis responsio non audiatur etiamsi praeclarae curiae honore praefulgeat u L. 9. Colde Test We expresly require that the testimony of one witnesse be not taken although he hath the stamp of highest dignity upon him for it were hard and dangerous that a mans whole right and interest of what value soever it be should depend upon the testimony of a single person onely who if he be honest and sincere yet through want of good observation or by a failing memory may report the matter of fact otherwise then indeed it was Yet in matters of small prejudice and value the Civil Law does allow of the testimony of one witnesse if the Plaintiffe himself can swear the thing in demand is true for in that case his averring upon Oath as much as his witnesse hath sworne doth supply the testimony of another winesse x Mincing cent 1. observ 68. Howbeit the Civil Law hath a further care yet for before it will suffer any mans right to be judg'd away from him it will see not onely a competent number of witnesses but they must swear of their knowledge too y L. Neque Natales Co. de Prob. and it does cast a very considerate eye upon their reputation and quality also It gives way therefore to the proving of any remarkable exceptions that can be brought against them Testium fides sayes Callistratus diligenter examinanda est Ideâ—que in persona corum exploranda erunt inprimis conditio cujusque utrum quis decurio an plebeius sit an honestae inculpatae vitae aen vero notatus quis reprehensibilis an locuples vel egens sit ut lucri causa quid facilè admittat vel an inimicus ei sit adversus quem testimonium fert vel amicus ei sit pro quo testimonium dat Nam si careat suspicione testimonium vel propter personam à qua fertur quòd honesta sit vel propter causam quòd neque lucri neque gratiae neque inimicitiae causa sit admittendus est z Lib 3. Dig. de Test The sincerity of witnesses is strictly to be enquired after Therefore as to their persons the condition of every witnesse must be examined whehe be a Magistrate or a common person whether he be of good and unblameable life or whether he lye open to just reproof or hath been any way aspersed whether he be able or necessitous so that he may be tempted to transgresse for filthy lucres sake whether he be an enemy to him against whom he comes to testifie or whether he be gracious with him whose witnesse he is to be for if his testimony be void of all suspition either in regard of his person as that he is honest or in regard of the cause as that there is neither gain nor affection nor enmity to corrupt him he is to be allowed Moreover it leaves a Latitude to every Court of Judicature to give such a time both to Plaintiffe and Defendant to prove as the distance of place from whence the proof is to be brought does necessarily require Neither does it exact that Plaintiffe and Defendant should prove within one and the same time but the Defendant begins to prove his Defence after the Plaintiffs proof is ended a Speculat de Test sect qualiter num 20. When both have done the Judge is to conclude the cause by which all further proof is excluded so that the next step is to judge and pronounce finally upon the whole matter And although the Roman Empire was the largest and most extended that ever was and the multitude of causes must be supposed to be great too yet no Civill cause whatsoever was to last and continue longer then by the space of tree years nor any criminall matter
Principum accivitatum imperia stabiliora sunt ab injuria finitimorum tutiora cùm soci etates ac foedera sic contrabuntur ut aequabilis quaedam ex omnibus potentia existat Bodin de rep l. 5. c. 6. and by some a lawfull way of Anticipation b Sunt qui neuâ—rarum partium se esse verbo declarant re tamen faces utrisque ad bellum instimmandum clam suppedâ—â—ant ferendum illud quidem quodammodo si sua saluti aliter consulere non possint Bodin de rep lib. 5. cap. 6. Which whether it be or no it is not proper here to determine But sure I am to be regard lesse of such an over-spreading Neighbour were a token of great improvidence and stupidity And it were but needfull for the lesser States to confoederate and combine together and to make joynt preparations to oppose her in case she shall offer to molest any one of them for so active is Man by nature that where a sufficient power to hurt is present it is seldome seen that Will is wanting c Una est tenuium adversus potentiores securitatis cautio ut scilicet potentes si nocere velint non possint cùm nocendi voluntas ambitiosis hominibus imperandi cupidis nunquam sit defutura Bodin de rep lib. 5. cap. 6. Also since it is neither honourable nor advantageous for any young Prince to intermarry even with the Noblest or Richest of his own Subjects he must of necessity fit himself out of the Royal Families of other Princes here therefore they must be seen known and dealt with also Besides a free and open recourse to forreigne parts is so absolutely necessary to the very being of a Nation that we see oft-times the restraint and shutting up thereof in point of trading does so exasperate and incense a people that the whole frame is ready to be dissolved and the Subjects ready to rend one another in pieces not sparing to discharge their anger even upon the very Prince himselfe These and such like instances doe demonstrate how not only advantageous but unavoidable it is for severall and divided Kingdomes to correspond act and negotiate each with other which it is not possible for them to doe but that controversies both various and difficult and which mainly concern their severall interests even to no lesse value sometimes then whole Kingdomes will fall in that must be debated and must have some determination And when every thing else has a Law to guide it and a rule to examine and try it by insomuch as no one society or petty Common-wealth can stand without some Law the like necessity must there needs be of a Law to maintain and order the communion of Nations corresponding and acting together Si nulla est communitas quae sine jure conservari possit quod memorabili latronum exemplo probabat Aristoteles certe illa quae genus humanum aut populos complures inter se colligat jure indiget sayes d In Prolegom Grotius If there be no association which can be held up without some Law as Aristotle hoth proved by an argument drawn from that close partnership which is usually amongst Theeves and Highway-men then surely is there want of a Law to direct that grand fellowship which linkes all mankind or divers States together And again e Grot. ibid. Sicut cujusque civitatis jura utilitatem suae civitatis respiciunt ita inter civitates aut omnes aut plerasque ex consensu jura quaedam nasci potuerunt nata apparet quae utilitatem respiciciunt non coetuum singulorum sed magnae universitatis As the Laws of every particular Common-wealth are made for the benefit thereof so some certain Lawes might be and were certainly agreed upon by all or most of the Nations of the world which should conduce to the welfare not of any one people but of the great communion of all men Now the Law that guideth those transactions which are usually observed to arise between grand Societies is the Law of Nations which is most naturall and rationall in its kind too being grounded at first upon a common necessity that lay upon all Nations to have reciprocall dealings and negociations with one another which the very Nature of those several dealings and Reason it selfe dictates as necessary to be observed so that without it such communion could not long endure Under the regulation hereof comes Embassies courteous entertainment of forreigners and strangers Laws of Arms freedome of Traffique right of Contracts free passage through each others Borders Reprizalls the preserving and redemption of Captives Leagues Truces Articles and such like The strength and vertue of which Law is such that a people can with as little safety violate it by any act how advantageous soever it may seem to be to the whole Body f Qui civium rationem babendam dicum exterorum negant bi communionem societatem humani generis dirimum Cicer. as a private man can in hope to benefit himselfe infringe the Law of his Countrey Sicut civis qui jus civile perrumpit utilitatis praesentis causa id convellit quo ipsius posteritatisque suae perpetuae utilitates continentur sic populus jura naturae gentiumque violans suae quoque tranquillitatis in posterum rescindit munimenta g Grot. in Prolegom As a Subject trespassing against the Law for a present advantage brings the future happinesse of himselfe and posterity into hazard so a people that shall trample upon the Law of Nature and of Nations strips it selfe of the onely preservative of their peace and safety It is not onely lawfull but honourable for any people either to right or revenge the breach of the Law of Nations And as in the state of one Countrey any man may accuse upon a publick crime so in the state of the World any people may prosecute a common offence for as there is a civil bond among all the people of one Nation so is there a naturall knot among all men in the world which should it be once dissolved it must needs endanger the whole frame of that communion Nay of such power and praeeminence is the Law of Nations that no particular Nation can lawfully prejudice the same by any their severall Laws and Ordinances h Si Princeps velit vel jus gentium primarium vel secuâ—darium intra sui imperii limites abrogare potestate sua abuti censeudus est Barbos Collect. in c. 9. dist 1 â—n 6. more then a Man by his private resolutions the Law of the whole Common-wealth or State wherein he liveth for as a Civil Law being the act of a whole body politick doth therefore over-rule each severall part of the same body so there is no reason that any one Common-wealth of it selfe should to the prejudice of another annihilate that whereupon the whole world hath agreed for which cause the Lacedaemonians forbidding all accesse of strangers into their
rationum damonstrationum evidentia sic ordinis praestantia antecellunt The Roman Lawes saith he are made after the likenesse of the Decalogue and do not differ from those notions and principles of Reason which Nature hath implanted in all men And it is out of all question that setting aside Gods Law they are as more ancient so more renowned as of higher authority so truer and clearer in determination as of a more evident demonstration and reason so of a more excellent rank then other Laws that yet have been Which conformity and likenesse of the Civil Law to the Divine and Eternall has been the onely cause that the Casusts and Divines that have created upon cases of Conscience and have laboured to teach men what rules they must walk by to doe justice and to execute righteousness in their dealings and communications with one another they doe every where about their books and writings propose set down the very rules and maxims of the Civil Law as the best lessons of morality justice citing the very Lawes themselves and the authorities of that profession which were incongruous and vain for them to doe were not their justice equity and soundnesse unquestionable and their authority beyond all dispute even in those things for which their authority is brought by them Neither is it they alone that set this high estimate upon the authority of the Civil Law since the Learned in other faculties doe the same with whom there is nothing more frequent then when the duties of men one towards another in their severall relations com to be set forth as between Parents and Children Masters and Servants Husband and Wife Sovereign and Subject Magistrates and private Men Captain and Souldiers one Citizen with another or when the best rules and advantages are to be laid down for the first founding of a Common-wealth or the keeping of it in safety and splendour or when the justice and convenience of a Law is in question or the actions of Men even of Princes themselves be to be approved or condemned In all these cases and the like nothing I say is more usuall with Writers of highest renown for Learning and wisdome then to fort fiâ— their resolutions and dictates one way or other with the practice and discipline of the Roman State and to make the Civil Law their Touch-stone to try all things by and the best and most approved ballance to weigh them in judging the authority thereof to be beyond deniall in any thing that it does either defend or disallow and for such as it is presented does it passe currant with all men The Civil Law requires that an act should be worthy and laudable as well as lawfull that it should be faire equitable ingenuous and candid as well as strictly just Subtilties and niceties of words and those apices juris finesses of Law and fine-spun webs of Wit which are opposite to integrity and honest dealing and which through a precise form of words and strict propriety of speech would frustrate what was purely at first intended it will not allow of or endure Bonae fidei non congruit de apicibus juris disputare says Vlpian t l. 29. Parag 4. Dig Mandat It suits not with sincerity to contend about curiosities Sensum non vana nominum vocabula amplecti oportet u l. 2. Co De coust pecuu The true intended sense and not the bare litteral signification is to be pursued Scriptum sequi calumniatoris est boni verò judicis voluntatem scriptoris autoritatemque defendere says Gail x Lib 2. obs 132. out of Cicer pro Caeâ—inn It is the part of a Caviller to keep close to words but of an upright Judge to uphold the intent and meaning of him that spake them Qui pertinaciter à scripto recedere non vult perniciosè erraet sayes Peckius y Ca 88. De reg ju in 6. in in princ He shall offend perniciously that will grant but what the very words will bear and will be got to yield no further And therefore the Civil Law which we have now had it been in being in the third Punick War when the City of Carthage by a crafty exposition of words was quite demolished by order of the Roman Senate after they had first given their faith to the Carthaginians in these expressions Civitatem Carthaginis salvam fore jura privilegia immunitates easdem habituros quibus antea semper usi fuissent The City of Carthage should be saved and the same rights immunities and priviledges should be continued unto them which they always had would have condemn'd the whole Senate for such their breach of faith and treachery though there was not the life of any person touch'd For who could doubt but that the Carthaginians articling for the safety of the City did aim and intend to have the place preserved as well as the persons And it was a shameful defence to say as the Romans did that when the people of the City were all preserved and kept alive the true City was saved which was as much as they promised though the walls and buildings themselves were destroyed Civitatem maenibus urbis minimè contineri The word City does import the Men and not the Structure or Edifices thereof For although in strict propriety of speech there is that nice difference inter urbem civitatem quò urbs aedificia Civitas incolae sint yet leguleiorum est syllabas apices aucupari non militaris simplicitatis sayes Alberâ—cus Gentilis z De jur Bell lib 2. ca. 4. It is for Lawyers to catch at words and not for Souldiers whose plain meaning admits not of such nice distinctions In fide quid senseris non quid dixeris cogitandum est says Grotius a De Ju. Bell lib 2. ca 16. nu 1. out of Tully Where faith is given what was meant is to be regarded rather then what was spoken The Plataeans were as selfe and unworthy when after they had promised to send home the Prisoners taken slew them first and so sent them home dead quasi cadavera essent captivi mortuus homo esset homo says Albericus Gentilis b d. ca 4. as if it were to be believed that the Carkases were the Prisoners themselves or a man dead could be thought a man And as deceitful were the Baeotians too who having ingaged to restore the City did deliver it up not standing but rased and pulâ—d down So was it an act most treacherous and false in Alexander who first gave a besieged Town an Assurance that they should go forth of the Town safely and then after they were quite gone forth and set forward some part of their way put them all to the sword Grotius c d ca 16. out of Tully says truly ejusmodi fraudibus astringi non dissolvi perjurium by such fraudulent evasisions perjury is rather augmented then wiped away In Contracts between
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
the same else the Law will strike it out upon the score of affection and natural obligation And so did Alexander Severus declare to Mother Hereunia who when she had fed and maintained at her Table her children and laid out money besides for their other uses when they came of age she demanded satisfaction of all from the but being denied it she complained to the Emperour who made her this answer Alimenta quidem quae filiis tuis prastitisti tibi reddi non justa ratâ—one postulas cùm id exigonte materna pietate feceris Si quid autem in rebus eorum utiliter probabili more impendisti si non hoc materna liberalitate sed recipiendi animo fecisse te estenderis negociorum gestorum actione id consequi potes p l. 11. Co. eod Thou hast no just reason to demand payment for that alimony and sustenance which thou didst afford thy children for very natural piety did require it of thee But if thou hast usefully and in a probable hope to advantage them expended also money about their business if thou canst make it good that thou didst it not out of a free mind nor meerly as a Mother but with an expectation to be reimbursed thereof by thy children the Law will enforce them to pay it thee back again Lastly he that will voluntarily and of himself being not commissioned act in anothers business if he intends to ground any demand upon it he must be sure not onely to think and intend a benefit or advantage to him whom he is about to serve but it must be really so For let him think it never so beneficial and wish â—t never so much yet if it be not so indeed the loss will be his and he can challenge no satisfaction for what he does or expendeth Vt enim eventum non spectemus sayes Ulpian negocium debet utiliter esse coeptum q l 10. parag 1. Dig. eod Though we value not the success yet it is requisite that it should be evidently useful or necessary when it is first undertaken Lastly not to sail any longer in an Ocean so vast and infinite having given instances enough to measure the rest of the Law by tanquam ex pede Herculem though it is the proper work of every Law that is made to declare to the people what things they ought to do and from what they must abstain and wherein they may take their full freedome r Legis virtuâ— est imperare vetare permittere punire l. 7. Dig. de legib yet no Law has ever done it so fully and perfectly as this has done For Princes Rulers Councellours of State Judges subordinate Magistrates Advocates and Clients Proctors Registers and Notaries Masters of families Husbands and Wives Children and Servants Masters and Scholars Tutours and Pupils Merchants Factours Buyers and Sellers Letters and Hirers Borrowers and Lenders Officers and Souldiers open Enemies as well as allies and Confederates Embassadours and Nuntios Conquerours and Conquered Owners Masters and Captains of Ships Pilots Mariners and Passengers Aliens and Natives Fiduciaries Mediatours Substitutes and lastly all sorts of people of what age degree or condition soever they be may read their truest duties in this Learning and be directed how to order and demean themselves aright in their several offices and functions So that when the learning of this Law is thus universal running through the several negociations and matters of intercourse between Man and Man Nation and Nation and having a resolution ready for all such questions as arise upon them and is so rational withall that its decisions are rather the strong enforcements of reason then any commands of will it ought to be no matter of wonder to us that it has found so much credit and authority with Christian Nations as to make it the rule to end their greatest Controversies The End of the First Book LEX LEGVM OR THE EXCELLENCY Of the Roman CIVIL LAW Above all other HUMANE LAWS WHATSOEVER The Second Part. London Printed for R. Royston at the Angel in Ivy-Lane 1656. LEX LEGUM OR THE EXCELLENCY Of the Roman CIVIL LAW Above all other HUMANE LAVVS WHATSOEVER CHAP. I. That the greatness and splendour of the Roman Empire does evidence the singular vertue of the Law it self to which as to its proper cause it may be ascribed ALbeit it be praise sufficient for the Roman Civil Law that it hath more of natural equity and pure reason in it then any other Law of Man and that more need not be said to divert a Nation or people from throwing it out of their Territories or disesteeming it then that they may thereby seem to abandon their own reason and stifle the very dictates of nature and even stop up that fountain from whence all their own particular Laws were at first derived for lex Romanorum legum omnium Mater nuncapatur a Addit ad Capitul Lud. Imper ca. 4. in God leg Antiqu. the Roman Law is called the Mother of all Laws that have since been made Yet because there are many other grounds upon which it may he yet further extoll'd and set up above other Laws I think I cannot spend time and pains better then to set them down especially when I see every thing is laid hold on to cry that profession down And surely if the dispensation of right justice be a principal means to make a State glorious and flourishing this Law must needs surpass in excellency all other Laws by how much the Roman State whch was all along carried on by that Law did in greatness exceed and in splendor out-shine all other States and Empires that have yet been Touching which the Roman story every where gives us to undestand that the Roman State in process of time grew so large in Dominion and Power that it spread it self almost over the whole World there being few Nations which were not brought under its rule and government and indeed was esteemed the common countrey of all men and the Center of the whole earth Tantae erant Romanorum vires ut Asia Africa maxim Europae parte subactis iisdem ferme quibus Solis cursus metis imperium suum finirent sayes Loccenius b Period Imper lib 4. ca. 5. The potency of the Romans was grown to be such that Asia Africa and the greatest part of Europe being Conquered the Sun and the Empire did almost run the same race It maintained intercourse of Trade and held correspondence with all other Nations of what sort constitution and language soever It was the common c Nihil principe dignius nihil magis optandum quà m dissidiorum ac bellorum inter popules arbitrum eieri ut olim Senatus Populusque Romanue propter summant virtutis quam de se ipse concitarat epinionem Bodin de rep lib â— ca. 6. Judge and Umpire to arbitrate the differences of other Princes and people It was the seat of Learning and receptacle of
encouragement Next Gods Laws saith he those of the Empire seem to challenge their place howbeit with us having neither that reward nor employment as they deserve they have lost both their rank and dignity but in forreign parts where they are cherished and honoured they marvellously flourish insomuch as in some transmarine Kingdomes their Lawyers are held and for the most part are undoubtedly more sufficient Scholars they their Divines and within this last Centenary much more sufficient then the writers and professours of the same faculty in many precedent ages as well in that part which is professed in Schools as the practick expressed in judgments and pleadings Now for the latter part which is the practick saith he it may easily be evidenced to any who will be pleased to look into it that by the observations experience paines and learning of the Lawyers of those latter ages it is grown to much more exactness and perfection then former ages had Which appears by the judgments decisions arrests and pleadings of the highest Courts of the greatest part of the Christian Nations which are extant in great numbers as the Decisions of the several Rotes of Italy at Rome at Naples at Florence at Genoa at Bononia at Mantua and Perusium and the rest the judgments of the Imperial Chamber at Spire which is the last resort of the German Nation and the arrests of the several Courts of Parliament in France as Paris Aiz Burdeaux Grenoble and the rest To which may be added the pleadings of Monsieur Servine the French Kings Advocate and others of that nature which are all published and extant partly in Latin and partly in their own Languages with that variety and learning as much exceeds the former ages But to pass from what is observed by our own Countrey-men in this particular is not there an ancient institution of England that does clearly demonstrate the same thing for if we were not sure that the Civil Law did pass for currant and were generally embraced in forreign parts why should we alwayes to this very day observe to try and decide all differences that arise between our own Countrey-men and Strangers either upon or beyond the Sea in the Court of Admiralty where the proceedings are onely after the forme of the Civil Law And were it not to please forreigners in the Law they like and allow of we might when we had them here strictly hold them to our own Laws But since we must trade and traffick with them it were no indifferency to call them from the trial of that Law which they in some part know and is the Law of their Countrey as themselves make it to the trial of a Law which they know in no part and is meer forreign unto them Likewise if the Treaties that we have had with forreign Princes were surveyed it would be found that they run in the language and are transacted by the skill and knowledge of the same Law It is evident therefore that it is used and accepted of every where upon and beyond the seas since that where we deal with strangers most and have most variance with them there it is most used even amongst our selves And to the same ground and reason does Mr Selden in his discourse upon Fleta k Ca. 8. parag 4. impute it that the practise of the Civil Law has been continued alwayes in the Marshals Court here in England where divers causes might arise that might concern strangers as also in the Judiciall Courts in both Universities where strangers for study sake do frequently come to settle though for my part I cannot think that the Universities use it for any other reason then for the pure natural equity and sound reason that is in it above all the Laws in the World besides nor for any other end then that young men trained up and made expert in that profession when they come abroad might be more ready in all matters of negotiation and commerce that the Prince or State should in their dealing with forreign Nations have occasion to use them in when ever they were call'd to any such imployment to which the Laws of this Land serve nothing at all It is needless in so clear a matter to offer any further proof to convince our Countrey-men that all their neighbours beyond the Seas that are nevertheless wise rich and potent do suffer themselves to be judg'd and directed by the Civil Law and the professours of it I shall therefore as touching this particular add but two things which in my judgment are very well worth the observation The first is that Justinians Code which is a collection of the Emperours Laws onely from the dayes of Adrian unto the age of Justinian himself is in use even amongst the Turkes l Stephan Prooeâ—n in Novel nu 64. In order to which it was as Mr Selden saith in his discourse upon Fleta m Ca. 5. parag 5. that Mahomet the second but the first Emperour of the Turkes so called when he had won Constantinople from the Christians he commanded Maximus the Patriarch with other books to translate also into Arabick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the Imperial Codes which was done in futurum ut videtur Mahumedici imperii usum sayes Mr Selden that is to be useful for the Turkish Empire The second is that even in the territory of the Church where the patrimony and the jurisdiction of the Popes lieth this Law has in some cases an interest of guidance in the Tribunals there too And yet if the precious worth that is in it did not captivate them there are not forcible and weighty reasons wanting to make them abhor and decline the same For First some of the Christian Roman Emperours as Constantine Theodosius Martian and Justinian did ordaine divers Laws for the ordering of Church-matters and Church-men which since the Popes look'd upon as an usurpation and an incroachment upon their spiritual jurisdiction Temporal Princes being the disposers of temporal things onely as they suppose and not to meddle with spiritual it might well beget in them an animosity and dislike against the Law it self Secondly the Church has a large Law of their own the Canon Law and so large that it may be thought sufficient to set a rule to all that Churches affairs whatsoever and need not borrow help from any other Laws Thirdly there has alwayes been as it were an emulous contention which of these two Laws should be the most potent and spread furthest in the Christian World Fourthly the Popes in these latter ages have not stuck to make open protestation that the Pontificial dignity was rather to give Laws to the Emperours then receive any from them And are not these if there were no other grounds enough to make them tender how they admitted the Civil Law into their Territories yet such has been the power and force of that Law that it has got footing even in that Spiritual Monarchy for where sin against God comes
then stand upon our own Legislative authority to which other Princes and people will not be obliged h Consuetudines vel statuta sunt localia sic non obligant nisi subditos Gail obs lib. 2. obs 124. nu 5. but we must be contented to stand and submit our selves to such a Law how forreign soever as is proper for those very matters and to which other Nations do refer themselves which is the Civil Law that Nature has breathed out it self in and Nations have consented unto And if it be so necessary for the carrying on of forreign affairs that they cannot be transacted without it this shews a necessity of admitting of it also in the agitation of certain matters and causes at home and amongst our selves for the more ample reward and encouragement of that profession which can never be maintained or upheld by the transaction of forreign affairs onely which is not desired neither in any greater latitude or measure then has been alwayes allowed it heretofore and where the Common-Law has never known to intermeddle and in which if the Civil Law should not be used questions and differences would arise and there would be no Law or Rule found to settle them which would be a very pernicious thing So that be the authority of the Civil Law forreign which it cannot be except it were imposed upon us by some other Nation or people or be it that it were of no authority at all but what the necessary assent of our own natural reason and the consent of Nations gives it yet it were strange that we should rather chuse to have no Law at all in those matters then to receive or entertain the same for a help to direct our judgments in them It being then so necessary a Law that but by the knowledg and conduct thereof forreign affairs cannot possibly be carried on and there would be a manifest failer of justice in other matters at home without it the supposed inconvenience of having two Laws in one and the same Nation so much urged against it will appear to be a very slender and inconsiderable thing for how can that inconvenience hurt us more then it does other Nations that have Municipal Laws of their own and yet do keep the Civil Law too Besides it is so far from being an inconvenience that it is both a benefit and an honour to a people to abound in justice and to have it rather supplied by two Laws then to fail in the doing thereof by having but one And though where there be two Laws and two distinct professions of them in one State if the matters and causes whereof they are severally allowed the cognizance be not certainly assigned to each that the one may not enterfire with the other there may arise a confusion of jurisdictions and the subject will be uncertain whither to goe for justice and may be in danger to be molested by both Courts for one and the same thing which were an intollerable mischief i Gravius privatorum damno peccatur eùm inter summos magistratus curiasve majores de imperio certatur Bodin de rep lib. 3. ca. 6. Yet the Courts of the Civil Law have alwayes had their limits particularly prescribed them and the causes within their cognisance punctually set down and if they hold plea of any thing else there is a known remedy to be had to stop them by bringing prohibitions from the Common-Law which are never so soon ask'd as granted But if the Common-Law Courts shall draw to their examination such matters as do properly belong to the Civil as they have done too often or do prohibit the Civil from proceeding where they know they can do no right nor give any relief themselves as in the business of allotting portions amongst the deceaseds kindred which they never did nor can do nor will suffer the Civil Law Courts to do it neither this an heavy vexation but the blame must lie upon them But to be sure whilest there is such a correcting hand over the Courts of the Civil Law there is little ground of fear that they can trouble or molest the people further then their just power does authorise them Which may be sufficient also to remove the jealousies of those that fear if the Civil should be admitted it may in time supplant and undermine the Municipal Law of this Nation For it were a vain attempt for subordinate Courts to go about to shake the standing of that Law to whose check and controule they lie continually subject And if in forreign Nations that have their Municipal Laws all of them but no profession nor Lawyers nor Judges but of the Civil Law onely there is not any found so bold and presumptuous that dares at any time to set up the Civil Law above the particular Law or Custome of the place though opportunities to do it are not wanting but that the particular Law or Custome if any be in the case does prevail and has the praeeminence alwayes surely then the Municipal Law and customes of England are much more secure from being invaded and incroched upon when not onely the Law is distinct but there is a distinct profession thereof also from the Civil Law that bears a watchfull eye towards its own greatness and which is more that has a controuling power and as it were a sovereignty over the other Besides the very principles of the Civil Law do run clean counter to any such design it being an express Maxime in that Law That the Municipal Law and custome of any State for what concerns those that are subject to it ought to be preferr'd before any more Universal Law that is 〈◊〉 the contrary Lex Municipalis sive consuetudo juri communi derogat k Gail obs lib. 3. obs 124. nu 2. Lex cujusque loci inspicienda est sive scripta sit sive non l Gl. in l. 5. parag 1. Dig. De jur immunit verb. legem Tam in decidendis litigantium controversiis is qui urâ—sdictiouâ— prâ—â—est conâ—uctud nâ—â— loâ—i in quo conâ—â—actum est observare â—ebet quà m in delictorum puntâ—â—â—ne ejus loci consuâ—tudinem in quo peccatum est â—sequi tenetur l. si fundus Dig. de evict Doct. in l. cunctos Co. De summ Trinit And as I have said before often so I must inculcate it here still The Civil Law where ever it is admitted it comes without the least prejudice to any either Law custome or government nor alters any thing but is an auxiliary supplement or a knowledg assisting in the administration of right and justice both to subjects and between Nation and Nation where there is no Municipal Law in the case or where it is imperfect and obscure or where a locall Law is of no authority at all In the one it supplies in the other it interprets in the last it moderates as a most indifferent Umpire So that of these two Laws the proper office and
't is hoped hath no disaffection to that profession or professors of it but rather in a just resentment of their oppression sutable to his birth and noble disposition if so I say they may comfort themselves in this that they were put to the test in the beginning of the Long Parliament when their factious Accusers were sufficiently numerous and virulent and had they been found guilty they had not then escaped punishment severe and infamous enough They could not easily have been highlier justified then that way which made it appear to all the world that that clamorous party through the sides of the Civilians intended to strike at and wound their Superiors and so serve turns and ends and compasse their long-weav'd design If the Civilians do their parts in their Functions uprightly and diligently which their own consciences doubtlesse will prompt them to and the vigilancy of their factious Adversaries over their actions may serve to keep them awake 't is to be hoped they will every way find comfort and encouragement However that peace at the last and the continual Feast in the interim will buoy them up above the greatest waves of envy or malice Good men will be their friends though the contrary be their enemies and one Cato is better then a Theatre And we cannot but be confident that we shall never have cause to say as some said in another case Non nos Resp. sed defuit nobis Respublica We have a gracious KING whom God protect blesse and prolong his dayes Et Spes Ratio studiorum in Caesare He we doubt not will as before him his Royal Father Charles the first King and Martyr and his Grandfather King James of blessed memory look upon us with a favourable eye according as he finds we endeavour faithfully and diligently to serve the Church and State that is to serve him they who faile therein deserve not to be remembred And besides the general His Sacred Majesty hath in particular demonstrated his gracions favour that way by the addition of honour and honourary revenue to the Masters of the Chancery Civilians for the most part an act that if possibly there can be an addition adds to the just obligation of duty service and gratitude which they owe his most excellent Majesty And all due thankfulnesse and honour the same Profession must ever acknowledge and render to the Right Honourable the Earl of Clarendon Lord Chancellor of England for his special favours to that Profession and Professors and for his mediation and being instrumental as none I believe can suppose otherwise in the obtaining that favour and bounty to the Masters of the Chancery and by furthering the continuance of His Majesties gracious inclination towards them We blesse God and His Majesty and his Lordship for it and are I hope and ever shall be most thankful for it ad rejoyce and comfort our selves in it and Rumpatur quisquis rumpitur invidia Now as in the Preface I thought fit to subjoyn that little Manuscript touching the Oath ex officio with that Determination touching the same by that glory of our Church the late Lord Bishop Lancelot Andrews Bishop of Winchester A Manuscript treating of the Oath Ex officio said to be Doctor Davenants late Lord Bishop of Sarisbury 1. THat which the Commons House complained of is that the Commissioners Ecclesiastical proceed Ex officio that is say they without a known Accuser 2. And that they cause men to answer upon their oath that which they would have is this 1. That no man should be dealt with but an Accuser should stand forth and that no Oath should be ministred to a man in his own cause That which your Lordships have enjoyned me is to shew my opinion whether the courses complained of be warrantable by the Word of God or no. Two parts there are distinctly to be spoken to the one of proceeding without a known Accuser the other of proceeding by way of Oath I begin with them generally at large and after as they concern Ecclesiastical proceedings 1. The end of all Judgments in all Courts is to remove evil The Heathen man sayes Interest reipublicae ut malefict tollantur the health of the civil body consisting no lesse in removing evil persons then doth the natural in purging out evil humours And the very same is Gods course in his Common-Wealth ten several times in Deuteronomy he repeats it Vt sic tolletis malum de medio Israëlis 2. Evil then is to be removed not onely civil but Ecclesiastical so doth God take express orders that corrupt Religion contumacy in disobeying his Priest Incontinency Defamation matters all of ecclesiastical cognisance should be removed expresly terming every one of them malum in Israële And so in the New Testament doth the Apostle speak of the case of Incest Vos autem auferetis malum de vobis These then are evils and Ecclesiastical evils and to be removed 3. If they must be removed they must be known for St. Hierom saith well Quod ignorat medicina non curat Physick both corporal and civil must know the peccant humour before they can purge it 4. If know it they must by the parties themselves they shall never know it The first that ever did trespass were not so ready to commit sin but they were twice as ready to conceal it And as Tertullian saith to good purpose Reliqui omnes congeneres primo All other offenders do as the first did seek to keep their offence from being known The offences themselves ye know are called opera tenebrarum and Incontinency that defileth the body as well as the spiritual Whoredom which is corruption in the Worship of God either of them we know is angularis actio and kept from knowledge as much as may be 5. Then if they must be known and will not by the parties themselves some other means must be used to bring them to light where if there be a party to stand up and accuse 't is well and he not to be refused But we know and I refer my self to your Lordships that it is holden an odious matter to be an Accuser and with the better sort of men more odious Few that be well disposed will be gotten to it and even they that will I refer me to your Lordships again whether Salomon saith not true that One evil will not be accused but out of another evil that is grudge or spleen to wreak our selves upon some party that we conceive hath wronged us otherwise the faintness of men to become Accusers will make that much evil will not be removed if this be onely the way to remove it but God saith All evil must be removed so near as may be 6. For that cause God hath authorized those that hold Judicial places for the removing of evil not onely to receive accusations when they be brought against it but if none be brought to make enquiry after it in the 13 17 and 18 of Deuteronomy that
endamaged he is inflamed with anger he is wholly wrapt up in the Leaven of anger and revenge struck through with the sting of malevolence will be rash with his mouth which the Wiseman forbids to be in an oath Eccl. 5.1 therefore the matter of an Oath herein is altogether unfit But the party guilty or defendant whom the Law alwayes supposes to be guilty of the crime charged till the contrary appear is much fitter In him there is less prejudice less of affections besides perhaps of fear which is as it were the heart of an oath Therefore it is lawful to lay it upon the party guilty or defendant and fitting too to do so Now I come to the fourth branch In what cause this is fitting which is more intricate and hath more question in it And I shall not seek any where else for the division of these causes but in our Law that is the Law of Divines there in the holy Law some are called wrongs or prevarications Exod. 22.9 some capital causes Deut. 21.21 whereof some of those being heinous are punished with loss of life life either by being deprived of natural life or civil that is Banishment or as the holy Writ speaks rooting out Ezra 7.26 To which are allied causes of bloud such as are Deut. 25.12 Lopping off a limb and there in the second Verse inflicting of stripes but these others were not so great and were partly punished by pecuniary Mulcts partly by imprisonment Esth 7.26 Was there any place for such an oath to be given in such crimes as were punished by loss of life truly I do not perswade to that First the practice in Scripture contraries it for I see when Achans life was in question Joshua dealt thus Tell me my son swear not to me So likewise Saul in the like case concerning Jonathan Tell me Jonathan do not swear to me a willing not express confession a simple interrogation not under the bond of an oath But which is the hinge of the question I see the Prophet Jeremy himself interrogated by the King himself I will aske thee a thing hide nothing from me The Prophet covenants with him If I declare it unto thee will thou not surely put me to death nor did Jeremy thus covenant without the dictate of the holy Ghost as if in such causes God had given an immunity of answering Jer. 38.14 And indeed Reason perswades the same for indeed so ought Inquisition as far as it may be to be made by the Magistrate that the manifest loss of souls may be avoided When as from the mouth of the greatest Liar that most true sentence proceeded Skin after skin and all that a man hath will he give for his life Job 2.4 it is to be feared that that whatsoever or all that a man hath will comprehend as well the conscience of an oath as the fear of God and what else soever comes under the notion of Religion as men are and as they are disposed Wherefore though I define nothing I know not how in such causes as these in regard of the present danger of Perjury yet I think 't is best to forbear the imposing of an Oath And the Laws which we use at least according to leave or permission judge the same But in other cases being of lesser offense and so punished more easily I think otherwise Except perhaps we take that sentence out of the Comick Poet and place it in Divinity An Oath is for the keeping of a thing not for the losing of it For by that general Law it is provided Lev. 5.4 If a soul swear pronouncing with his lips to do evil or to do good whatsoever it is that a man shall pronounce with an oath and it be hid from him when he knoweth of it then he shall be guilty in one of these And whereas this cannot be understood of the Evil of guilt or of a crime as we speak in the Schools lest an Oath which is a bond of piety should become a bond of Iniquity it follows it must hold in an evil of punishment in which kind it is neither lawful to refuse an oath nor after it is taken to break it 1. Not to refuse it Solomon wittingly and prudently laid an oath upon Shimei to the loss of his liberty that he should not go beyond Cedron and he lawfully laid this oath on him and when afterwards Shimei having sworn not to pass these bounds yet did it he lost his life for it and justly not onely for passing beyond Cedron but for the violation of his oath 1 Kings 2.43 What would you have even prophane Shimei refuses not an oath though to the loss of his liberty Nor Micheas who by the King was bound up under the Religion of an oath neither was that once onely or that the first time but it had been done sometimes before when he was free refused but being sworn refused not but answered though his certain punishment was before his eyes though for his answer he was to be sent to prison 1 Kings 22.16 By which example it appears as well that it was then the custom in Israel to take an oath to answer as also that the Prophet Micheas durst not perhaps he was ignorant of Gods Law in that point do as we do now-a-dayes either covenant that the oath shall not entangle us or endanger our liberty or if that may not be granted then to use Tergiversation 2. Not to break the oath That is as the principal argument if it may lawfully be performed for except it be so rightly saith St. Augustine Justice breaks unjust bonds I hope the Magistrate shall not have less power then every one of the vulgar and every private person every of them have at least that small power If he be sworn to his loss yet he must not change in that he hath promised to his neighbour Psal 15.4 and if not his promise to his neighbour then not to the Magistrate by a better right sure or equal at least What then even prophane Esau revoked not his oath though it was to the loss of his Inheritance But that private men once for all may know under what Law they are in this case it is not lawful no not for a King to do it Zedekiah took an oath to his loss and as at the first view it seems even as well to his own slavery as the slavery of his people Ezek. 17.13 he changed but God both detested and revenged that fact of his Nor is it lawful for a Commonwealth so to change The Common-wealth of Israel made a League with the Gibeonites and swore to it and this was contrary both to their profit and the publique command of God Joshua Josh 9.15 thought not fit to have it chang'd and he thought right The same oath Saul afterwards presumed to change though he did it in zeal towards Israel yet that was expiated first by the danger of the loss of his Kingdom and afterwards by the cutting
his touching the chastity of his Wife Num. 5 14. For the matter in question it is in a main degree dangerous that it ought not to be dissembled and the persons with whom 't is acted use not to bring in any witnesses but such as are guilty themselves by whom hey may be convinced And as to the crime we speak of it is of that kind of wickednesse that leaves no prints footsteps or marks behind it by which they may be taken hold of Wherefore in those cases it is no lesse lawful to question or accuse upon suspicion onely then it is by the Pillory Stocks or * A punishment amongst the Heathens where the party was put into a Boat and another Boat whelm'd over him Boat for such purpose these things were in Gods †Jer. 29.26 Commonwealth Either of which in other either controversies or crimes no man allowes Well does Seneca if I remember well render the reason hereof Where Villanies run riot beyond measure 't is unjust that justice should be tyed to degrees to which that plainly extraordinary question of him who about that wicked extraordinary act of Achan betook himself to lots is not very unlike The God of Israel would have them to be troubled that go about to trouble the Israel of God and hereof the Valley of Achor is a perpetual monument Now whomsoever the Magistrate calls in question by any one of these four or if it concern the peace of the Commonwealth or of the Church the fifth way either foregoing the partie is lawfully called Nor is there any reason he should fear that he should accuse or bewray himself he is now lawfully accused and bewrayed He is now that he is accused and bewrayed to take care how he shall lawfully defend himself And hitherto of the right of Accusation Now I assume the second The matter being thus before the Judge brought into doubt the party guilty or defendant either confesses the crime committed as Achan did and then the Judge hath no more to do but to pronounce sentence or which is most commonly done denies it which Solomon most elegantly expresses Prov. 18.17 He that is first in his own cause seemeth just but his neighbour cometh and searcheth him Now the party guilty or defendant denying by repelling the objection and the Agent or Plaintiff affirming his intention thereon arises that contradiction St. Paul speaks of Heb. 6.16 the bounder or end of which contradiction is that which is every Judicature is sought for as there the Apostle observes but no bounder will be found till the matter be put in an equal ballance except the one party have a better confirmation then the other 't is the Apostles word in the same place therefore 't is the Judges part to enquire on which part that lyes 'T is but a light labour and little praise to end such contentions as are easie and plain but that 's the worth of a Judge to sift out such causes where the right is obscure and perplexed The cause which I knew not I searched out saith Iob of himself Iob 29.16 And to do that dexterously and fitly is the honour of a Magistrate saith Solomon Prov. 25.1 to whom himself that sentence he pronounced in that most difficult cause 'twixt the two Harlots touching the uncertain mother of the surviving child was an high honour 1 Kings 3.27 But before these confirmations that is the foundations of the cause ought to be or can be set forth it is necessary some state of the cause must be settled or as it were a hinge must be on which the cause may be turned and that first of all to be made manifest what and how far he affirms and the other denies wherein each of the Litigants may rightly call the other to set foot to foot and hand to hand Sayes the Iew and prudently does he say it First of all place me the controversie upon his foundation which except you do as very aptly some speak out of Prov. 21. the whole Action is but meer vanity tossed on this side and that side this way and that way 'twixt the Agent and Defendant which as we cannot endure here in the Schools much lesse ought it to be suffered in Judicature whose proceeding thoroughout ought to be solemn and sacred and the very Justice of Justice as it is Deut. 16.20 This subject matter to be judged or state of the cause or if any would rather call it so the bounder of the controversie is to be sought out either in the behalf of the guilty or defendant party or of the Agent Not of the Agent oftentimes he cannot because oftentimes there is none such when one is called into question upon presumption or else upon fame and when there is he is almost rapt and transposed or is driven on either out of hatred or some other oblique desire that he himself is unstated so that from him in vain is the state of the cause required Wherefore to the party guilty or defendant is this favour granted or rather this honor is given who is alwayes a person certain and whom the Law accounts not convicted for guiltlesse that he should either by affirming or denying fix to himself the state of the cause yea that by his answer onely the state of the whole controversie may be setled and not onely the state of the controversie but except he be convinced of falshood by the testimony of two witnesses beyond all exception an end too of the controversie But that he may not if he be loose and free depart from that state so by him sixed and afterwards not stand to that state but shall recoil and go back from his purpose a bond a bond of the soul as God gave it the name he is to enter into that is a religious affirmation by which his soul is as it were bound up with a chain to speak out the truth holily and sincerely that is the truth not that absolutely but as he knows it or believes it nor must go contrary to his conscience which we call lying but even as he were acting with God himself so must he act with the Magistrate that is Gods Lieutenant that represents him and requires right That Israel and the people of God proceeded thus that is swore to make true answer that practice of Michaeas of which I made mention above and that which is much apter that other in that questioning of Elias 1 Kings 18.10 evince it where when they had expresly answered He is not with as the King not herewith contented forced them to an oath that they had not found him as if no Law could compell a man to rest on the answer of a man unsworn Wherefore as it is altogether fit that the party guilty or defendant should be bound up lest he might evade or change the state of the cause and thereupon one state and then another follows and indeed so there will be no place of consistency or settling the cause
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
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
by enquiry it may be found and found it may be removed Which Enquiry is not left at large promiscuously hand over head but hath his limitation upon what ground to proceed Now if you aske what ground we can have no better rule for it then if we follow Gods own proceeding in his judicial courses for the judgment is Gods properly and not Mans and there is nothing more to be desired then that God would give the King his judgments for the judgments of all those that be in place are then best when they are likest Gods the rather for that God needing not to hold any course of Enquiry because to him all things are clear and manifest not onely then but before they be done and yet binding himself to a certain way in his proceeding no other reason is or can be rendred why he should so do but onely to instruct us how to proceed by his example In Gods court true it is there is an accuser allowed even the accuser of us and our brethren who we see is somtimes heard and received though his suggestions be untrue as in Jobs case But is there no proceeding but upon accusation I take it to be very clear that it will fall out divers judgments of his having been given upon another ground In Adams case no accuser stood forth what was done was as yet not known onely he was taken in suspicious manner flying from God lurking in a Thicket which was plainly species mali and God thought it meet to be enquired on and so may we upon like suspicion though there be no accuser even by his Warrant In Eves case neither had she any accuser but by examining Adam she came to be impeached tanquam particeps criminis at the least which as we know was by way of detection which is not properly accusation yet sufficient enough to ground a sentence upon as we see God did and they that sit in his place may do the like In Cains case it fell out clear otherwise then in Adams for in Adams the fact was unknown in Cains onely the party for the murther was evident Now to find out the party the way which God taketh is by presumption for that there had been malice born Abel by Cain and he admonished thereof his very countenance bewraying as much this did God hold cause enough to ground an Enquiry upon and so may we In the case of Sodom there is yet another way clamor multus est saith God there is a great rumour or fame runneth upon Sodoms naughtiness I will go down and enquire of it saith God in express words So that whether there be accusation or no vehement suspicion or detection or strong presumption or fame will supply the want of an Accuser and the Judge even by very duty is authorized to proceed to enquire upon any of these A little to insist on this of fame whereof our Savour Christ in the Gospel hath made that a branch which we call denunciatio Evangelica when a party of good credit discloseth unto the Judge a fault but will not sustain either the hazard trouble or charge of an Accuser Yet doth our Saviour Christ give warrant to the Church even in that case to call the party and take order with him But this point of proceeding upon fame hath not onely warrant of proceeding in Gods example but in his express charge two several places of the Law where the ground is Deut. 30.12 Deut. 17.4 If it be told thee that such or such a fault is done the proceeding is perscrutando interrogando Perscrutando that is by searching and evidence Interrogando that is by interrogating the party about the fault suggested And we see plainly in a case of Ecclesiastical correction for matter of Incest the Apostle goeth no further but layeth this for his ground There goeth a report that such a party there is among you As therefore when an accuser offereth himself he is not to be rejected so though none do rather then faults should go uncensurable the Judge even of very duty is to search them out In his search not proceeding without some of these that have been mentioned but with these he hath good warrant even as good as Gods own example and commandment Sufficient hath been said to shew that without an Accuser a Judge may proceed by enquiry to interrogate a party but whether upon his Oath that is the second point to be shewed no less warrantable by the Word of God then the former In the case of the Woman suspected to have made a fault to her husband and that upon no other ground but upon her husbands own jealousie the Ecclesiastical Judge was not onely authorized to examine her concerning it and then to rest on her denyal but also to put her to her oath and make her to abjure it with execration as it is plainly Num. 5. And it is a case of a sin against the seventh Commandment In a sin against the eighth Commandment betwixt man and man If one had committed ought to anothers trust and were perswaded that he had played false with him he might bring him before the Judge and have the matter searched into and at the Plaintiffs instance the Judge was to lay an oath upon him and the other not to refuse it And of this there are more cases then one Exod. 21. And if in private causes betwixt man and man this manner of proceeding be allowed it will follow à fortiori if for the private benefit much more that which God granteth to a private man it is to be presumed he will not deny to a Magistrate that which to satisfie one party he licenseth he will likewise think meet to license for the taking away of offence and giving satisfaction unto many And the chastity of a mans Wife shall never be more precious to him then the keeping of his own Spouse the Church free from the like stains of pollution In a sin against the sixth Commandment a case of Murther one is found slain no man can be accused or suspected for doing it In this case the Governors of the next City to the body so found are by the Law to come to the place to offer a sacrifice to invocate the name of God and solemnly to testifie by that Invocation that they are no wayes privy to the murther This is the course in the Law of Moses but before ever the Law was written we see the very same holden by Joseph under the Law of Nature In a matter of State in a suspicion of a sin against the fifth Commandment It pleased him to charge his ten Brethren as Spies coming to discover the weakness of the Land there was no party to accuse or to say ought against them yet for all that he put them to it sub attestatione juramenti to answer They were no such men The very like course was holden in the search for Elias he was thought to be the cause of the