that in a little space of time it got footing also with the other sciences in France Spain and Italy and in all the Western part of Europe where it has been in greatest use and highest account as well in studies as in Judicatories ever since to this very age of ours Nay the Civil Law after it was once restored and taken notice of having long lain hid and concealed drew the hearts and studies of men after it in such wonderful manner and grew to that mighty eminence and power that the most were intent upon the study of it and but few in comparison lookt after any other learning Giraldus of Oxford charges it as a fault upon the students of his time and tells that one Martin a Clergy-man did sharply reprove the University of Oxford at a publick congregation for devoting themselves wholly to that study neglecting all other learning saying quòd leges Imperiales reliqua scientias omnes suffocaverant the Imperiall Laws had swallowed up all the other Sciences Also Daniel Morlaes in the same Century being in Henry the seconds time writes that the Law was so much studied in Oxford quòd pro Titio Seio Aristoteles Plato penitus oblivioni traderentur that Titius and Seius were minded altogether and Aristotle and Plato were quite forgotten And Roger Bacon that had made himself eminent in all the sciences did upbraid the Bishops of the same age for minding Divinity so little adding quòd cavillationes juris defaedarent Philophiam the sophistry of the Law would corrupt the true Philosophy Stephen Langton Arch-Bishop of Canterbury took up the same complaint in Henry the thirds time against the Monks of his time qui relicto agro veri Booz nempe sacra Scriptura ad alium agrum id est scientiam secularem pro cupiditate terrena transirent who through greediness of filthy lucre which was then to be gotten chiefest from the Law did forsake the knowledge of the Scriptures and hunt after secular knowledge The like lamentation was made by Robert Holcot of the order of the Praedicants in Northampton-shire in Edward the thirds time leges canones saith he istis temporibus innumerabiliter sunt foecundae concipiunt divitias pariunt dignitates ad illas confluunt quasi â—ota multitudo scholarum his diebus The Laws and Canons are immeasurably profitable in these times riches and honours spring from thence almost the whole number of Scholars resort thither for indeed the greatest professours in Theologie that were did so little content themselves with that one way of advancement that they did frequently assume degrees in Law to fit and qualifie them for other preferments also But sure it is these complaints and objurgations of private men could so little keep this luxuriant growth of the Law from spreading that the very Edicts and Decrees of Princes could not bring it down Matthew Paris in his History upon the year 1254. and in the Additions pag. 883. Edit Noviss makes mention of a constitution made and published by Pope Innocent the fourth by which it was ordained that no professour of the Laws should be promoted to any Ecclesiastical dignity in France England Scotland Spain and Hungarie and that from thenceforward the Imperial Laws should not be read in those dominions if the Kings and Princes so thought fit Pope Honorius the third forbad the reading or teaching of the Civil Law in Paris in the year 1220. i Ca. super spetuta ext de privileg Those Popes thought that the restraint of the Imperial Law would be a ready means to bring into request the Canon Law which was as it were but new set up Upon design therefore to bring into credith their own Ecclesiastical Law rather then out of any dislike of the Civil were those prohibitorie Decrees made however they very much failed of that effect that was intended them for we may have observed to this very time that all those Christian States that do acknowledge the Popes authority and power have so equally divided their respect between both those Laws that they have appointed to each their proper function designing the one to be serviceable to Civil matters the other to Ecclesiastical and so by such moderation have done very equal right to both At the same time that the Civil Law was publickly read at Bononia by the means of Lotharius the second it was brought into England by Theobald the Arch-Bishop of Canterbury and being publickly read in Oxford by Vacarius it grew so general a study and other learning was so much neglected upon it that King Stephen incensed thereat sent forth a peremptory command that it should be read in England no more that Vacarius should forbear to teach it any further nor that it should be lawful for any to keep any books of the Roman Laws by them Sed parùm valuit Stephani prohibitio nam eò magis invaluit virtus legis Deo favente quò eam amplius nitebatur impietas subvertere sayes Mr Selden k Dissertat ad Flet. cap. 7. parag 6. But King Stephens prohibition did prevaile but little for the power of the Law God prospering the same waxed the more vigorous when malice did most strive to destroy it Charles the ninth and Henry the third of France did also by sending forth their Edicts forbid the Civil Law to be taught in Paris or that any Degrees should be taken in that faculty Philip the fair and the Parliament of Paris anciently did straitly charge that no man should dare in any pleading to urge or cite the Roman Law against a special Law of the Nation In Spaine it has been made no less then a capital crime to offer or alledge the Roman Law as compulsive or binding And surely it is a high indignity to any Prince to have any forreigne Law set up against and to beat down his own And therefore in the erection of Universities in France the Kings have alwayes declared that their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the subjects should be any way bound thereunto lest they should seem to derogate from the Laws of their own countrey by advancing the Laws of strangers l Bodin de rep lib. 1. ca. 8. These and such like edicts declarations of Princes have been alwayes of full force and power as most justly they ought to be to limit the vast and universal power of the Civil Law and to keep it from getting above and prevailing over the Laws and Customes of their own Territories for that were no less then to worship two Suns in one and the same firmament and to call in the Roman Sovereignty which was long ago cast off But that the Civil Law should not be studied publickly taught no degrees taken in it nor cited in their Judicatories in a ministerial and subordinate way to their own municipal Laws and Customes or that
just rational and honest Laws do deserve to make their memory still famous amongst men because so much use has been made thereof ever since in the governing of so many States Empires and people And well did some of the ancient Fathers of the Church as also some of our later Divines observe that without doubt God did therefore indue the Romans with such admirable skill in government and Law making that after Nations might have a good example to follow It is St Austins judgment i Lib. 5. De civitat Dei ca. 6. That the Roman Empire had that glorious increase not onely to be a fit guerdon to the vertues of such as bore rule there but also that the Citizens of heaven in their pilgrimages upon earth might seriously attentively fix their eyes upon those examples And before him Tully as Lud. Vives hath cited him k Lib. de caus corrupt art being to draw a Model of a Common-wealth and Laws to govern it withall setâ— before his eyes no other pattern but that of the Romans to which in his judgment all people should in prudence shape and conform themselves And that our Saviour Christ himself God Almighty from all eternity so disposing it should be born under the government of the Roman Empire and submit to it too may it not more then probably be inferred that it was Gods secret intent and purpose if not to bring all Christians under subjection to those very Laws under which their head was born and lived yet at least by that signal act of his to recommend that policy and government to their imitation which might be a means to propagate the Gospel of Christ to send it forth to the whole world which that Empire seemed wholly to command St Austin l Lib. 18. de civit Dei ca. 22. makes the Universal rule of the Romans a special design of God for the good of mankind Per populum Romanum placuit Deo terrarum orbem debellare ut in unam societatem reipublicae legumque perductum longè lateque pacaret It was therefore saith he Gods pleasure that the Romans should conquer and command the whole earth that being brought under one communion of government and form of Laws it might the better enjoy peace both far and wide Videtur Dominus Monarchiam Romanorum conservasse propagasse at simul propagaretur honesta corum Politia reprimeretur incondita barbaries aliarum gentium sayes Baldwine m In his Prolegom Therefore was the Roman Empire by Gods permission so far extended that their good government might spread the more and the conversation of barbarous and wild Nations be made civil And indeed the continuance of it in such diversity of governments as Kings Consuls Tribunes Dictators Emperours cannot but shew a Divine power and a most prudent managery of affairs there in all vicissitudes For otherwise so many changes might in all likelihood have bred confusion and so consequently suppressed their rising to so great an Empire which as the last so it may be truly stiled the greatest that yet the world ever know or heard of Thus therefore the Roman Empire having climb'd up to such an height of Soveraignty as to be a spectacle an astonishment to all other Nations n Romanitrium pulcberrimarum virâ—utum justiâ—iae inquam fortitudinâ—â— as prudentiae laudibus imperatoriisque artibus cumulati populos omnes in sui admirationem converterum Bodin de rep lib. 5. ca. 6. and their government being generally proposed and look'd upon as a pattern and by some judgments designed as an example by God himself for other States to follow and be directed by What does it witness less then that the Laws of such a Nation and government must needs be singular and incomparable CHAP. II. The fundamentals of the Roman Civil Law were fetch'd from other States which did then excel others most in Policy and Government THe first grounds and foundations of the Civil Law were not of the Romans own composing but were fetch'd from other Nations and those the best governed that were in being for when they had cast off Kingly government and put themselves into the form of a Common wealth they would no longer endure the Laws that their Kings had made partly because they would not suffer any memory of their power to remaine and partly because the setting up of a new government would require necessarily the making also of new Laws which might correspond therewith Therefore since a present supply of Laws was necessary arbitrary rule being intolerable and that to frame a body of Laws themselves in a short time was impossible and not by a new-born State to be effected they appointed three eminent men to go to Athens and other Graecian Cities which had been famous for rule and administration of justice above others to fetch from thence the choicest Laws they could find At the return of those three men the Consuls that had bore the sway were deposed and both their Authority and Ensigne given unto ten men newly elected for the government of the State and were thence called Decemviri whose office it was to select the best of these Laws and by them precisely to rule and do justice to all the people The Laws that they chose and best approved of were written at first in ten Tables of Brass to which two Tables more being added afterwards they were all set up together in the open Market-place to be seen and read by the people which ever after were distinguished by the name of Leges 12 Tabularum The Laws of the 12 Tables To the direction of these Laws the Roman people were subject and conformed themselves for a long time and they were the onely Law they had Of the which Tully o Lib. 1. De Oraâ— gives this high testimony that this one book of these Laws both for usefulness and wisdome did transcend all the books that all the Philosophers of the world had written And although their engravement in brass could not preserve them from the injury of time nor rescue them from that universal change that altered all things in the Roman Empire whereby it came to pass that some reliques onely of them are now extant to the lamentation of all the learned Yet the Historians without any disagreeing tell us that the rise and beginning of all the Civil Law that we have in the books of Justinian came from those Laws Thus Livie Tacitus Sigonius and Rosinus And no less is delivered by Pomponius himself in his large Narrative of the beginning and progress of the Civil Law p l. 2. Dig. De orig jur and as much by Justinian himself q Parag. 10. Inst de ju nat gent. civ And hence it is that every where throughout the Body of the Civil Law frequent and common mention is made of the Laws of the 12 Tables and several of them entirely recited and some of them confirmed and enlarged others quite taken away
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
the word knew it into being conscious of it if he that is so conscious of it shall be called forth to give his testimony if he reveal it not he shall bear his own iniquity Therefore 't is lawful to make inquisition and upon oath And first of all 't is lawful to make Inquisition touching the party guilty or defendant even amongst others though his Brethren though they be religious persons as Obadiah touching Elias 1 Kings 18.10 there is no Nation or Kingdom whither my Lord hath not sent to seek thee and when they said He is not there he took an oath of the Kingdom and Nation that they found thee not And methinks 't is likely when this oath was common to the whole Kingdom it fell also upon those religious men whose Knees were not bowed to Baal nor had their lips kissed him neither did they in this cause though it was to the prejudice of their Elias and that too before wicked Magistrates refuse to give their testimony Neither is it onely lawful to enquire concerning the guilty or defendant party amongst others onely but also to enquire of him himself concerning himself The great Judge gave us a precedent herein in that first Inquisition that ever was Gen. 3.11 Who told thee that thou wast naked hast thou eaten of the tree whereof I commanded thee that thou shouldst not eat So the Princes interrogated Baruch touching Jeremiahs book Tell us how didst thou write all these words at his mouth So Esdras the very parties guilty or defendants touching their own fact Esr 10.11 So the High Priest committed St. Paul to custody to enquire something of him more perfectly Acts 23.20 For oftentimes accusers fall back which the Heathen man long since observed All cannot some will not accuse what 's to be done then Some mens wickednesse because they are truly the works of darknesse nor can be brought to light Ephes 5.11 because they joyn hand in hand nor will discover themselves Prov. 16.5 Because the name of Doeg is harsh and even the very thing to go forth to accuse is now become poor and odious a matter of cost danger and infamy Prov. 25.8 And shall we suffer wickednesse to lye hid and spred abroad and by delay to gather strength till at length it break out to the ruine of the Commonwealth and because no man can or will for it is all one whether he will not or cannot accuse is' t not lawful to enquire surely 't is lawful But 't is in vain to enquire without the bond of an Oath The Holy Ghost in the old Testament expresses it by the word adjure and so the King adjured Micheas In the New Testament also by the word adjure so the High Priest adjured our Saviour Mat. 26.63 and they both made Religion of not answering to the Question Touching the Hebrew word there is no question but that both by the force of the name and the use of it it imports an Oath I adde nor is there of the Greek word neither if Beza and the rest of the Translators render right that request of the Devil which is in Mat. 5.7 I adjure thee that thou torment me not that is assure me by giving me an Oath or swearing to me that thou wilt not torment me So seems it to them but that term of Adjuring I passe by I take the other if it be another of laying an Oath up on the party guilty or defendant that is that by Law it is permitted to the party agent to force him against his will to take an oath Exod. 22.8 1 Kings 8.31 and therefore 't is more then permitted to the Magistrate Surely very bad were the case of our affairs if every private man should have power to require an oath of the party guilty or defendant and the Magistrate should not have power if in the case of a Pawn it should be lawful and not of a Kingdom if one may be forced to swear that he hath not put his hand to his neighbours goods and cannot be forced to his oath that he hath not put forth his hand to the peace of the Commonwealth If as to the Law his case be better that makes troubles in the church of God then his that has done it about his friends money Compare these one with another First the magistrate then the party agent one perhaps of the meanest of the common people then the case of a mans small summe of money and the case of the Commonwealth further that Pawn sometimes may somewhere be discovered but those clandestine conspiracies cannot unless you grant such Inquisition for that 's vanished into the air left no impression behind it Either I am very much mistaken or whether you consider the persons or the matter or the moments or the events of the things the equity and necessity of an oath is here greater Therefore that the party guilty or defendant should be so interrogated in his own cause 't is allowed by Gods Law and that also by the laying on an oath is lawful And this last use of an oath is just and lawful not onely that the state of the question may be settled by the answer of the party guilty or defendant as before is laid down but also that the confirmations of the cause that is the pillars of the proofs may be gathered together whereupon the Judge may relye to determine the suit on one side This may suffice for this purpose unless that as I believe there rest one knot or another not worthy the loosing but that as the world goes now-a-adayes every scruple that men make becomes a rock they complain that by these means men are compelled to an infinite oath except before hand they may have the Question and afterwards take the Oath The reason hereof I have given before and therefore will not here repeat it This onely I maintain that the usual oath given cannot be declined by reason of Infinity for whilest those bounds and as it were ends of an oath the Prophet Jeremiah speaks of Jer. 4.2 which alwayes in Divinity were accounted the bounds and as it were the ends of an oath in truth justice and judgment whilest these were observed there was caution enough had nor other ends doth the Scripture acknowledge or require 1. In Truth that is truly That no man be compelled to swear contrary to that he knows as it was charged upon Micheas 1 Kings 12.16 Tell me nothing but truth in the name of the Lord. Or if any man like better that Attestation of St. Paul Rom. 9.1 I say the truth in Christ I lye not my conscience also bearing me witness in the holy Ghost This is enough for the first part 2. In Justice that is justly That nothing be sworn but what is possible in which case Abrahams servant took care Gen. 24.5 Perhaps the woman will not be willing to follow me c. The Heathen themselves too had that caution So far as I know and am able
sayes Saint Augustine c Lib 3. de Baptismo contra Donatistas cited in the Canolaw Dist 8. c. 4. Let no man preferre Custome before either Truth or Reason because Truth and Reason does drive contrary Custome quite away So that both in a Law and a Custome also it is equally requisite that they should both be rational CHAP. VI. Where Law or Custome is wanting to judge by President or Example has no defence in Reason ANd since Right reason is so essential to that which comes to arbitrate and judge of our Lives Livelyhoods and Interests we must crave leave to disallow of their opinion and practise who when they have neither Law nor Custome of their own countrey to guide their judgements by in any case that comes before them do not resort to the Civil Law as other Nations commonly do but do usually supply that defect by presidents thinking that any case which the Law has not provided in may be judged by a Judgement had in the like case before which certainly cannot be defended by any right reason or good judgement a Si dâ—xcrit aliquis fiâ— vidâ— sic audivâ— en decisiones magis risum quam fidem nostram excitat Maestert Dissertat de Artific dispuâ— parag 9. For First the conformity of one sentence to another to rational and wise men argues nothing as to right or equity but concludes a concurrency in opinion onely both which may be erroneous and mistaken Secondly as in judged cases taken meerly as such there is want of reason to perswade so there is want of authority also to oblige for what force or power can the judgements or sentences of any predecessors have to bind or limit those that shall succeed them in the same Judicatory Par in parem non habet imperium nec aliquis in seipsum Judges of equall power cannot exercise any rule over one another nor indeed can any one tye up ones own self b L. 13. parag 4. Dig ad S. C. Trâ—ble and Gothofr ibid. And therefore as it happens often that de eadem re saepe alius aliud decreverit aut judicaverit upon the same fact one Judge judges one way and another another So it is to be seen too that illi alià s aliud iisdem de rebus sentiunt judicant the very same men do determine the same fact at divers times diversly sayes Erodius c Reâ— Judic lib 1. Tit. 1. c. 18. c. 26. For indeed the Judgements of Men may wax perfecter by age study and experience than they were when they gave their first judgement And those that do succeed may be by many degrees more eminent in wisdome Reason Knowledge and Eperience than those that sate in the same Tribunals before them for there is in this world an undoubted wheeling in all things Knowledge Wit and Understanding does not shine and prosper so in some times as in other succeeding times they do and time to posterity may discover that to be an errour which our Ancestors thought a truth Thirdly there must needs be little value and weight laid upon foregoing Judgements even of the highest and most exemplary tribunals of men nor can they be esteemed such fit patterns for our imitation when it is considered what uncertainties they lye under what failings they are subject to and what artifices subtilties inventions practises and other undue means are too too frequently used to corrupt and poyson them For Sometimes pars major vincit meliorem the greater part weighs down the better Where many Judges are to pronounce Judgement and some one or two of them be eminently qualified above all the rest that which the greater number concurs in onely must prevail and take effect but if the wisest be dissenters numero potius quam scientia judicatur there is more of number than of weight or knowledge in such a sentence Sometimes he in whose favour sentence is given carries it but by one vote more than he against whom it passeth Sometimes some one of the Judges being more renowned or happily more eloquent than his fellowes does either through his greatnesse speech dexterity or wit draw all the rest into errour by his too powerful interposing But the danger of passing wrong and erroneous judgement is greater where the office and power of judging rests in one single person only since it is easier to draw away and overcome one than many And although it is his office to set before his eyes Law Religion Equity and Truth and remove far from him arbitrary licentious Wil Love Hatred Envy Fear Indulgence Covetousnesse all inordinate Affections whatsoever yet here too sayes Quintilian Pecunia quoque persuadet gratia anteritas dicentis dignitas postremò aspectus etiam ipse sine voce quo vel recordatio meritorum cujusque vel facies aliqua miserabilis vel formae pulchritudo sententiam dictat Money does prevail and favour and the graciousness of the suppliant and greatness does draw away and sometimes even the very presence without any speaking either through the remembrance of some eminent deservings or through the countenance being either mournful or sad to pity or to admiration beautiful is a means to melt a Judge and to corrupt and infect the Sentence It is too common also that the wrong cause is follow'd with exactest diligence strengthened with the patronage of the most the best advocates some of them happily too nearly related to the Judge himself and assisted with all other advantages that can make Victory hopeful when Right is destitue of all assistances and but weakly and faintly defended the one side too bold and pressing the other too too modest and bashful shewing a kind of guilt in blushes It is not so rare neither as were to be wished that the Regal or other Supreme power does intermeddle in the very acts of Justice either directly or by some remoter influence especially when a Nation is embroyled in troubles and divided into divers parties for in such case Justice is made subservient and ministerial to the strongest and most prevailing faction These are the difficulties and temptations which all Courts of Justice have to contend withall under which they may more easily fall than withstand and vanquish them he Judgements therefore and Sentences which they deliver though we must acquiesce in and sit down by them as to such cases which the same are purposely given for to decide and as to such persons that are mentioned or concerned therein for else there would be no end of Controversies nor no mans Right would be ever certain and therefore the Civil Law sayes that Prator quque jus reddere dicitur etiam cùm iniquè decernit d L. 11. dig de just juâ— and Res judicata pro veritate accipitur e L. 207. dig de rep jur a Judge is said to minister right even when he decrees unjust things and a Sentence is taken and stands for
detestable in it self and so destructive to the Common-wealth to be brought to pass sayes Baldwine in his Prolegomena Notwithstanding how odious soever this intendment was and though it proved ineffectual in Caligula yet did Licinius the Emperour attempt to do the very same thing but God would not suffer such a barbarous act to be done by him neither sayes the same Baldwine So that as often as it is call'd to mind what extremities fell upon the Lawyers in the sufferances of their persons and how near the whole body of the Law it self was to be swallowed up and at once devoured and that from no forreign enemy but from the Roman Emperours themselves who should have protected both it must also be remembred that those Emperours were such whose actions are hated and abhorred by all that read them and themselves stigmatized for cruel and unnatural tyrants and esteemed rather Monsters then Men. Let it be considered also that they did it to make way for their unbridled and tyrannical wills which they thought might be more licentious when there was neither person nor Law left to awe them And let it withall be spoken to the eternal honour of that Law that it stood flourishing notwithstanding after so many Emperours had vainly attempted to throw it down But never was it so near to utter extirpation as when a combined strength of barbarous people over-ran the Western part of the Empire For we read that in less time then the compass of eighty years Italy though anciently the strength and seat of that Empire was seven times brought almost unto desolation by the fire and sword of the Barbarians viz. First by Alarick King of the Gothes who sack'd Rome Naples and other places Secondly By Attila King of the Huns who razed Florence wasted Lombardy and not without much difficulty was diverted from the spoil of Rome by the intercession of Pope Leo. Thirdly by Gensericus King of the Vandals who also had the sackage of Rome it self Fourthly by Biorgus King of the Alani in the time of the Emperour Majoranus Fifthly by Odoacer King of the Heruli who drove Augustulus the last Western Emperour out of his estate and twice in thirteen years laid the Countrey desolate Sixthly by Theodorick King of the Gothes called in by Zeno Emperour of Constantinople to expel Odoacer and the Heruli And seventhly by Gundebald King of the Burgundians who having ransack'd all Lombardy returned home again leaving possession to the Gothes And when the Gothes had reigned in Italy under eight of their Kings for the space of seventy two years they were at last subdued by Belisarius and Narses and Italy united once more to the Empire in the time of Justinian But Narses having governed Italy about seventeen years and being after such good service most despitefully used by Sophia the wife of the Emperour Justinus in revenge opened the passages of the Countrey to Alboinus King of the Lombards then possessed of Pannonia who coming into Italy with their Wives and Children possessed themselves of all that Countrey which anciently was inhabited by the Cisalpine Galls calling it by their own names Longobardia now corruptly Lombardy And afterwards in process of time they grew so mighty and spreading there that there are reckoned no less then twenty three Kings of that line succeeding one another in Italy and their Kingdome endured no less then 206 years Italy therefore being thus rent from the Roman Empire and the Imperial seat being quite carried out of the West and fixed in the East at Constantinople the power thereof came to be less feared and other of the Roman provinces were likewise assaulted For France after it had been long harrassed by the incursions first of the Burgundians and then of the Gothes was afterwards invaded and quite possessed by the Franks who having long hovered on the banks of the Rhene at last took advantage of the distractions of the Empire and ventured over the River under the conduct of their first King Pharamond and quite expelled the Romans and laid such a strong foundation of government there that they have in a constant and uninterrupted succession continued there ever since Spain did not long remain in subjection to the Romans neither out of which they were driven by the Gothes also who kept the quiet possession thereof very near three hundred years till the Moors and Sarracens dispossessed them who there reigned full seven hundred years As for Germany it was never wholly subdued by the Romans but what they had gained thereof the French Burgundians Almans and other Dutch Nations took from them till in the end the French prevailing over the rest extended their Empire over all the modern Germany chiefly performed by the valour of Charles the Great King of France created Emperour of the West by the people of Rome and Crowned with the Imperial Crown by Pope Leo the fourth with whom and his successours it remained above an hundred years till at last by alienating whole countreys from it some titulary acknowledgment onely excepted and by dismembring it into many Principalities and inferiour States and those made absolute and independent that great Empire came to be nothing in effect but magni nominis umbra the shadow of a mighty body a meer empty Title having no resemblance of the Roman Empire from the which in the person of Charles the Great it was quite divided England also that was made a perfect member of the Roman Empire being invaded by the Scots and Picts and the Romans being enforced to recall their Legions they had here for the defence of Italy it self then wasted and destroyed by the Barbarous Nations was relinquished and given up as a province that was to be held by the Romans no longer Honorius being at that time the Roman Emperour and Victorinus the last governour for the Empire in the Isle of Britain the Romans having been in it full five hundred years and their Laws also Thus the Roman Empire being rent in sunder it is easie to imagine that the Roman Laws which constantly attended the Romans whereever they went were also dissipated in the same tempest Laws and Government being like Hippocrates twins they laugh and cry live and die together For Conquerours never think their Conquests perfect till they have overthrown the ancient Government Laws and Customes and have put all into a new mould after their own way Neither is a people throughly brought under subjection to their new masters till they have utterly renounced all that was prescribed them by their former Rulers Nor is the danger of their revolting quite over till they have quite forgotten their first condition and till a total change is made of Laws Customes Habit and Language And who knows not that it is in the power of the Sword being well fortified to impose what Laws and Rules it self will upon a people who after a tedious and a destructive war will rather embrace an ill conditioned peace then run the hazard of
the Canon Law the better 124. yet be does make use of the Civil Law 163 Parents were bound to leave a cerâ—â—in part of their estate to their children 9. 141 Penalties added to Laws argue the power but not the justness of them 158 Punishments for the same offence may justly be greater in one place then in anothes 26 R Reason was given to be mans guide in all his actions 2. it is a beame of the divine light 5. the principles thereof all of them not to be discerned by all 21. is sometimes covered with falshood and is much darkened by other natural corruptions 23. not a more deceitful thing then it 24. then most evident when generally allow'd by all 30. not so requisite in publick Laws as in private 33. private politick and that of Nations to be gathered out of the Civil Law 53 Romes greatness and flourishing does demonstrate the excellency of the Laws wherewith it was governed 98 Rome was as it were the City of the whole World 98 Romes greatness to be imputed rather to their Laws then Arms. 99 Romans very greedy of honour in pursuit whereof they did many gallant acts and especially made such good Laws as they did 100 Romes universal rule a special design of God for the good of man which was the cause that Christ was born under that government 102 Romans when they conquered a nation did not disdain to take such Laws from them as they found to be very honest and rational 107 Roman Emperours some favourable to the Civil Law others bitter enemies against it and the professours of it 112 Robbery in the High way or at Sea or with Burglary punished by death at Civil Law 142 Roman antiquities would have been better known if the old books of the Roman Laws had been preserved 121 Reason vulgar and ordinary not suffient to judge of legal matters 147. 154 Romans through their universal sovereignty dealt in greater variety of business then any Nation 52. 155 Rome came under several formes of government and yet some part of the Civil Law was under all of them 157 Ransome paid for another though without his directions is recoverable from him 91 Roman Laws do onely carry away the name of The Civil Law 166 S Society Civil what the benefits thereof be 56 Succession to intestates goods how regulated by the Civil Law 84 Stoppage is an allowed way of payment at Civil Law 89 Ship or goods when saved by the pains or loss of another the Law will allow salvage or other recompence for it 90 Slavery and servitude out of use amongst Christians 143 Sea matters to be judg'd and tried by Civilians onely 148 T Torture as it is allowed by Civil Law justified 72 Theft by Civil Law punished by pecuniary satisfaction 142 V Vniversities of England why they practise the Civil Law 161 Vniversities of the World teach no other nor give degrees in any other Law but the Civil Law 152. 153. 172. W Wrecks by the Civil Law restored to the owners and go not to the King 21. ERRATA The Reader is first desired to take notice that the Printer by the absence of the Author and being not acquainted with the quotations of Civil Law has from fol. 4. to fol. 23. in divers places in the Margent erroneously set down the books for the Law printing lib. instead of l. which stands for lege When therefore the Law is quoted out of the Digests or Code within that compass instead of lib. read l. as in fol. 4. in the Margent liâ—t l. for lib. 1. r. l. 1. Fol. 4. in the marg litt r. for Minfinus r. Minsing fol. 19. lin 24. rigorem r. vigorem l. 33. for is not so r. is not to be fol. 20. l. 22. for rules r. rulers fol. 71. in the margent litt r. for lib. 57. r. l. 57. fol. 75. l. 10. for need not r. I need not fol. 158. l. 20. for they r. it fol. 175. l. 33. for natural r. unnatural fol. 181. l. 16. for as r. us The End Memoranda TOUCHING THE OATH Ex officio Pretended Self-Accusation and Canonical Purgation Together with some NOTES about the making of some New and alteration and explanation of some Old LAWS All most humbly submitted to the consideration of this PARLIAMENT By EDW. LAKE Philo-Monarcho-phil Justitia Reip. Basis LONDON Printed for R. Royston Bookseller to the Kings most Excellent Majesty at the Angel in Ivy-Lane 1662. To the Right Honourable WILLIAM EARL of STRAFFORD Viscount Wentworth Baron Wentworth of Wentworth Woodhouse Newmarch Oversley and Rabye Knight of the most Honourable Order of the GARTER MY LORD SUch hath been the power of Custom for many Ages that the Authors not onely of just Volumes but of small Treatises too have ever been desirous I know not whether I may say Ambitious to dedicate them to some person of eminent quality and condition as it were Clients to their Patrons for the protecting and crediting them Hereby the Authors have oftentimes gained their desires and the Patrons especially when the excellency of such Books did deservedly acquire it addition of honour and same and also propagated the continuance thereof to all posterity Numerous instances hereof might be given but Mecaenas may be instar omnium which name of a Nobleman hath in a manner monopolized all noble Patrons as Patron 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 My Lord I am far from having any such opinion of this small Treatise indeed not deserving that name being in great part but an epitomized Collection and the rest brief Memoranda's or Notes rather to excite others to proceed upon that Subject then to rest on this though if by this or any other Act of mine any accesse of Honour could accrue to your Lordship I hold my self justly obliged humbly to present and tender it But my Lord the full scope of my intention in this Model is to the best of my Judgment which I alwayes submit to better and of my skill and power to contribute something tending to the further happinesse and continuance of Truth and Peace with Justice and Honour in this Church and State now by Gods blessing to whom be all Honour and Praise ex post-liminio as it were freed from Slavery and Tyrannical Oppression and restored to a capacity of their pristine Beauty and Splendour by the most happy Restauration of our most Gracious SOVERAIGN whom God preserve This I am sure as my Heart prompts me to speak is my sole intention which aymes onely at the advancement of the Publick Good and is not tainted with any drachm of private Interest And my Lord knowing you do Patrizare that most honoured Father of yours whose Memory must never perish whose Losse this Church and State have too sadly felt but Quis talia fando c. and that I may say as Tertullian de Resurrectione carnis sayes of the Phoenix raised out of the ashes of his dead Sire Alter idem Justitiae Honoris cultor sincerus maximè as
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
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 p. 24. Chap. V. That it is consonant to God Word to give such an Oath Ex officio or otherwise p. 28. Chap. VI. That the opinion and practice of the Primitive Christians and the Father of the Church was to administer such Oath Ex officio or upon Accusation and for Purgation Canonical with the practice at Geneva p. 33. Chap. VII That the like practice touching these Oaths is and was in all Forreign Christian Nations and other Nations not Christian guided onely by the Light of Nature p. 37. Chap. VIII That by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that Oath according to the Canon and Ecclesiastical Laws p. 39. Chap. IX That Oaths administred to parties touching matters damageable criminal and penal to themselves are urged and required by Temporal Courts and by the Laws of the Realm p. 41. Chap. X. The inconveniences 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 TOUCHING The OATH EX OFFICIO AND CANONICAL PURGATION CHAP. I. The endeavours of the innovators to change the course of Ecclesiasticall 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 Ecclesiasticall 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 FOR many years together now last past some men have very earnestly endeavoured to have taken away or at leastwise have much alter'd the proceedings in the Ecclesiacal Courts of this Kingdom used according to His Majesties Ecclesiastical Laws touching the Administration of the Oath ex officio and at the instance or promotion of a party accusing or stirring up the Judges Office to any party accus'd or call'd or enquired after by the Judge Ecclesiasticall ex officio or otherwise whereby as they phrase it he must confess or accuse himself and so render himself liable to penalty or censure In the Reign of Queen Elizabeth they prosecuted it vehemently if not violently and as before that time some Anabaptists in Germany had done the like in such Cases Of their practises that way here that most Faithful Learned and Grave Historion of ours Mr. Cambden gives us an account in his Annals of the Reign of Queen Elizabeth printed at Leyden in the Low-Countries 1625. It is in the year 1590. After he hath there given a Relation of that stupendious and blasphemous Fanatick Hackett of his beginning how illiterate insolent fierce and revengeful he was that meeting one that had been his School-Master an ingenuous person under a colour of embracing him bit off his Nose and the poor miserable deformed man beseeching him to give it him again that whilst it was green and fresh he might sow it again to his face he would not do it but like a dogge swallowed it down and so averse was he to all piety that that heavenly Doctrine he had heard in Sermons he made sport with it with his pot-Companions on the Ale-benches Afterwards when he had prodigally wasted his Estate which he had got with a Widow whom he had marryed on a sudain he claps on the vizard of most specious sanctity is wholly taken up in hearing Sermons reading the Scriptures and pretending to I know not what heavenly Revelations and counterfeiting and extraordinary calling insinuated himself into the acquaintance of severall Divines that with inflamed Zeal labour'd to bring in the Presbyteriall Discipline of the Church of Geneva into the Church of England amongst whom was one Wigginton a Minister and if ever any an haire-brain'd one and a contemner of Magistrates Then he goes on and relates Hacketts and his Complices most horrid and ridiculous madness such as had not such a worthy author and others related it we might now doubt of the truth of it as the next Age will probably do of our Modern Fanaticks late pranks there he relates his fearful blasphemous speeches as he expired and was turn'd off the Gallowes upon whom that pious and Learned Author gives this grave censure Ita hostis humani generis dementas quos sanctitatem simulare ad sobrietatem nolle sapere deprehendit Thus the enemy of Mankinde infatuates those whom he perceives to be counterfeitors of holiness and will not be wise with sobriety And then after a line or two upon Arthington and Coppinger two of Hacketts Complices he goes on thus Nec hii soli sed etiam alii qui receptam in Ecclesia Anglicana Doctrinam Episcoporum vocationem damnando Praesules contumeliosè calumniando hactenus frustra impugnarant Nunc pertractis in eorum partes nonullis juris Anglici peritis in eorum Jurisdictionem delegatam à Regina in Ecclesiasticis causis authoritatem ut prorsus injustam linguas calamos strinxerunt declamando ubique etiam libris publicatis homines contra Regni leges in Foris Ecclesiasticis indignè opprimi Reginam ejusmodi authoritatem ex jure non posse delegare nec alios exercere delegatam Fora illa non posse a reo Jusjurandum Ex Officio exigere cum Nemo seipsum accusare teneatur Jusjurandum illud homines ad sui condemnationem cum ignominiosa confusione vel in spontaneum perjurium cum animarum exitio praecipitare Praeterea de aliis quam matrimonialibus causis non debere cognoscere ex hujusmodi Veteri Rescripto Mandamus Vice-Comiti Comitatuum nostrorum S. N. c. quod non permittat quod aliqui in Balliva sua in aliquibus locis conveniant ad aliquas Recognitiones per sacramenta sua faciendas nisi in causis Matrimonialibus Testamentariis Contra Juris Ecclesiastici Professores Regiam in Ecclesiasticis authoritatem propugnarunt utique Parlamentariâ Authoritate in Regina investitam Hanc oppugnare nihil aliud esse quam in Majestatem irruere Sacro Sanctae Praerogativae violato obsequii juramento insultare Fora Ecclesiastica de aliis quam Matrimonialibus Testamentariis posse cognoscere ex statuto Circumspecte agatis Articulis Cleri sub Edvardo Primo docuerunt Rescriptum sive legem illam prolatam suspectam esse quia temporis est incerti variae Lectionis Alibi enim
Ministers are by Act of Parliament severely commanded to do it BY the late Act before mentioned where the Doubt so it is called there about the Coercive power in Ecclesiastical Courts is clear'd and taken away One Proviso is That that Act nor any thing therein conteined shall extend or be construed to extend to give unto any Archbishop or Bishop or any other Spiritual or Ecclesiastical Judge c. any power or authority to exercise c. If any be peccant that way it ought to be amended Another Proviso forbids any Archbishop Bishop c. to tender or administer unto any person the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment This being now forbidden by Act of Parliament every Subject ought to give obedience therein But some now insulting and upbraiding the Ecclesiastical Courts that all this while they have oppressed the Subject with that proceeding which the Parliament hath taken away renewing the old cry in Queen Elizabeths time and ever since against such proceedings which never till now I alwayes except what was done in the late times of usurped government were legally prohibited Though I am far from questioning the reasons whereupon that Act passed but do humbly submit to it both in word and practice yet I hope it will be allowed to make some defence against such persons as so tax such proceedings before the passing of this Act. And herein I shall follow that most able Civilian Richard Cosin Doctor of the Laws and Dean of the Arches in that his Apology for sundry proceedings by Jurisdiction Ecclesiastical c. Mr. Cambden as before mentions him with honour as surely he well deserv'd and that work of his if nothing else evinces it Mr. Swinburn in that Work of his of Last Wills and Testaments printed at London for the Company of Stationers 1611. in the first part sect 6. numb 8. fol. 17. writes thus of him and of that Work of his that Apology I find saith he written by that learned and no less religious man Doctor Cosins at I take it in that worthy Work entituled An Apology for sundry proceedings by Jurisdiction Ecclesiastical c. and so he goes on Upon this subject he hath written so fully that I believe little can be added to it and if any should go about it excepting such additions as well may be added by reason of some emergencies since the time he wrote and some other additions and explications not derogatory from him they would be forced very much to plough with his Heyfer which would but look too much like a Plagiary I could wish the book were reprinted and haply it will be so which may serve for Topicks to this subject For as all the Poets after Homer are said to drink of his Fountain according to that picture or statue of his that denotes as much with that Inscription Ridet anhelantem post se vestigia turbam Even so must I conceive all do from Doctor Cosin that shall write upon this subject I was upon Epitomizing that Apology of his and had made some progress therein but upon second thoughts desisted thinking it better to refer the Reader to him rather then to adventure to abbreviate him and thereby perhaps wrong him an offence that too many Epitomizers are guilty of therefore I say I shall onely make use of some Notes as confessed arrows out of his quiver and sippe of some others elsewhere and point the Reader to his full stream where any that list may drink their fill Upon these words in the late Act Provided that this Act. nor anything therein contained shall extend or be construed to extend or give unto any Archbishop Bishop c. any power or authority to exercise or execute c. any jurisdiction which they might not have done before the year of our Lord 1639. or to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters or affairs nor to confirm the Canons made in the year 1640. I say upon these words some are ready mistaking questionless the words and meaning of that Act to renew that old exploded Opinion or rather groundless Fancy That a several Royal assent to the executing of every particular Canon is required Hereto Doctor Cosin answers That admitting This were true then all the other opinions of those that oppugn the ordinary Jurisdiction Ecclesiastical stand in no stead and might be spared because this would cut off all at once For none that exercise ordinary Jurisdiction Ecclesiastical have it in particularity which by the oppugners seems to be meant otherwise then by permission of Law to every of their proceedings and impossible were it by reason of the infinity of it and troublesomness to procure such particular assent to the execution of every Canon His Majesties Delegates when Appeals are made to His Majesty in Chancery would signifie nothing could not exercise the power to them delegated by reason of the want of such particular assent and it is a gross absurdity to grant as even the Oppugners and Innovators do That Testamentary and Matrimonial causes are of Ecclesiastical cognizance to say nothing of the rest of Ecclesiastical causes and yet cannot by reason of this want be dispatched nor can be dealt in by any other authority according to any Law in force This would speak a defect in the publick Government that the Subject should have a right but no likely or ready mean to come by it and great offences by Law punishable and yet no man sufficiently authorized to execute these Laws Since the abrogation of Papal pretended Supremacy when the ancient rights of the Kings of England of being Supreme Governors over all persons within their Dominions as well in all spiritual or Ecclesiastical things or causes as Temporal and that no forreign Prince Person Prelate State or Potentate hath or ought to have any jurisdiction power superiority preeminence or authority Ecclesiastical or Spiritual within this Realm and so forth as in the Act and the Oath Since these rights were as it were ex postliminio restored and declared to have been as they ever ought to have been in the Kings of England many Laws have been made in several Parliaments for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution thereof and some of the Ecclesiastical Laws were enlarged altered and explained * 25 H. 8.19 The Statutes for Delegates upon Appeals †27 H 8 130. 32 H 8.7 Not long after two Statues for assistance of ordinary Ecclesiastical Jurisdiction and for the speedier recovery of Tithes in Courts Ecclesiastical * 34 35 H. 8 19. The like for the recovery of Pensions Procurations c. †1 Ed. 6. c. 2. In the time of Edw. 6.
our Places our Livelyhoods were unjustly taken from us onely for our Loyalty whilest others that did it gloried in their shame took our bread out of our mouths and did eat whilest we fasted and well nigh starved and yet such is the unsatiablenesse and unreasonablenesse of some of our causelesse persecutors that they could well be content we should still continue in the same oppressed and miserable condition And when His Majesty was happily restored for which all thanks praise and glory be ever rendred to the God of miracles and mercy the Civilians as they were as is before touched the first and earliest sufferers so were the last not a small time after the most reverend Bishops and especially after the rest of the Loyal Clergy were restored that were re-admitted to their places and Offices and when that was done still for a considerable time they were but precarious and of little use or value as before till the doubt touching coercive power was by Parliament taken away which was not till the later end of Summer 1661. and then with the Proviso against the Oath Ex officio and Purgation which not a little diminishes these Offices besides upon reasons known the forbearance of the full execution of such Offices as yet so far as by Law they might execute them is considerable Some Civilians who in contemplation of their natural duty and of their Oaths of Allegeance and Supremacy served His majesty in his wars against his then rebellious Subjects thereby lost all their Fortunes both real and personal that their enemies could find and certainly never were more sedulous and rigid scrutators or more rapacious Harpies that would not let scarce any thing passe their clutches Non fuit Autolyci tam piceata manus And such suffering Civilians both so in their Livelyhoods their quotidianum and their persons and liberties every often humbly hoped when a time of re-settlement should come that they should have been looked upon as well as others of the same profession that sate still underwent none of these dangers or hazards nor suffered perhaps any thing or but little in their Estates or otherwise especially in comparison with the others or as well as others that had some competency by reason of practice under the usurped Powers as to take and execute Offices under them of great benefit and I had almost said that way if not otherwise also immediately acted against His Majesty and his Authority contrary to their natural duty and Oaths of Allegeance and Supremacy To plead before the usurping Powers even after the end of the war it was not at least for a long time permitted to those Civilians of the Kings party especially those that had served him in his wars here For my own part though I could never satisfie my Conscience so far as to plead before any of the usurped powers not so far to acknowledge their power though some years before His Majesties happy restauration I was both here and in Ireland invited and desired to do it yet I would not do it nor ever did that way or any other give any acknowledgment of their power or touch any of their Pitch more then by a forced acquiescence and sitting quiet and still when I was constrained so to do Yet I say I am far from censuring any of these worthy and learned persons of either Robe that did either agere or defendere before that usurping power by way of pleading I would not be mis-understood as to be thought so much as to think amisse of the noble Profession or Professors at Common Law both which I love and honour and do very well known and have heard many of them suitable to their Births Breedings and loyal and generous Minds commiserate the oppression of the Profession and Professors of the Civil Law and wish that the proceedings in the Ecclesiastical Courts by the Oath Ex officio and Purgation might continue as it was before that last Act that took it away even for the justice of it as they conceive as also lest it might seem at leastwise in some mens judgments to savour of a kind of partiality that these Oaths Ex officio and Purgation should continue in proceeding at Common Law and not in the Spiritual and Ecclesiastical Courts or Courts Christian as at Common Law by the Laws of the Land they are styled a Title we like well and surely that Nick-name suitable to such debauched and dissolute persons that gave it because in these Courts their unclean crimes were punished and that did commovere bilem though they were punished there onely as before Medicinally to acknowledge their crimes to aske God and the congregation forgivenesse and to take away the evil and scandal and not mulcted or corporally punished by imprisonment or otherwise I say that Nick-name should it be given at all to any court as it ought not it would rather lean to such courts as inflict corporal punishments and mulcts upon such criminous persons by Imprisonment keeping the Bastard children whipping or otherwise corporally punishing them I wish and hope that as both the professions of both Robes sit as sisters under one Crown derive from one and the same head and draw from one and the same Fountain so each knowing their certain bounds and limits of Jurisdiction which if not clearly and explicitely settled I wish and hope will be may proceed christianly charitably and friendly in their several spheres of activity without clashing or the least dissention to Gods glory the good of this Church and Srate and the just distribution of Justice to the benefit and comfort of all the subjects in His Majesties Dominions Let us all remember that not long since there was a generation of men then too much in power that had an equal tooth against both the Professions would gladly have seen the destruction of both and made too great a progresse in it The noble Profession and Professors of the common Law could then expect little more favour then Polyphemus promised Vlysses that he should be the last that should be devoured And probably enough some of them stirred up some of the lesse-considerable common Lawyers and such as favoured their side too much for in all Professions there is good and bad to be iustrumental in the abolition of the Civil Law and when that was done when the out-works were taken in then to have about with the Fort it self They have shewed their Method No Bishop no King But concord and peace it is to be hoped will duly and indissolubly cement there two Professions if amongst our selves we do not ponere obicem and dis-joyne the union Let us never forget St. Pauls good counsel and caution All the Law is fulfilled in one word even in this Thou shalt love thy neighbour as thy self But if ye bite and devour one another take heed ye be not consumed one of another For the Civilians if they have many enemies and but few friends as was said by one that
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
not upon just fears frighted out of the House and it being scarce safe for the King to deny them any thing in that dangerous condition he was then in As also that such Concessions or Acts as then contrary to the Kings free will were wrested from the King were not to be accounted legal or good or valid whereof several instances may be given heretofore of such and amongst the rest one 15 E. 3. the King then yielded to and granted certain Articles pretended at least to have the form of an Act or Statute of Parliament expresly contrary to the Laws of the Realm and his own Prerogative to which he had assented to eschew the dangers which by denying the same were like to follow in the same Parliament it was repealed in these very words following It seemed good to the said Earls Barons and other wise men that since the Statute did not proceed of our good will the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void c. And perhaps it deserves to be thought of how far in this case that Act of 42 E. 3. c. 1. reaches where it is set down that the great Charter should be kept in all points and if any Statute be made to the contrary it shall be holden for none And one especial Law in that Charter is for the preservation of the rights and liberties of the Church whereof this of the Lords Spiritual their liberty of sitting and voting in the Lords House is a known special liberty and privilege and most ancient If we look back to the Long Parliament Proceedings of the House of Commons was it not fit that that House of Commons should have been justly regulated to act no further or otherwise then according to their just power and the Commission and Summons by which they were called which Commission or Writ of Summons is the foundation of all power in Parliaments as it is well expressed by the Lords and Commons assembled at Oxford Declaration of the Treaty p. 15. What fearful exorbitances have been that way the more sad it is to remember the more care ought to be taken to prevent it for the future The House of Commons in former times being desired by the Lords House to consult with them de arduis regni negotiis to which the Lords are called and the House of Commons remembring their call and commission ad consentiendū hiis quae tunc ibidem c. as in their Writ of Summons humbly referred it back to the Lords as matters too high for them And it may seem against the honour and gravity of Parliaments or either House as also to the grievance of the Subject for both or either House or the Committees of either of them as in the Long Parliament to trouble themselves with matters of very small or inferiour nature much below them and in cases where the Law hath sufficiently provided remedy and is still in force to be executed by the proper Judges Were it in making new Laws thereabouts that ought to be so but I mean in making orders about the execution of such Laws which properly belong to the ordinary Judges thereof and are usually executed by them especially touching inferiour matters it look'd then in that Long Parliament as though they would have swallowed up all other courts and made a kind of Justitium in them during the time of their Session such as medling with the appointing of Churchwardens and such like petty matters The late Long Parliament deviated much especially the pretended House of Commons then to omit as being too notoriously deplorable the Iliads of miseries this poor Nation hath thereby undergone besides that horrid one of the murther of our late King of ever blessed memory King Charles the first acted by a pretended House of Commons Was not that then too frequently practised worthy then of reformation that is the judiciary power being in the Lords House and the Commons House having power onely over their own Members in some cases and not having power so much as to give an Oath yet how often did they then upon small matters unworthy of their cognisance in regard they might have been so easily remedied by the known ordinary Laws of the Band and the ordinary competent Judges thereof call orthodox conformable and worthy Ministers to appear before them from very distant remote places sometimes near upon 200. miles for setting a rail about the Communion Table according to the command of the Ordinary or matters of such inferiour nature these brought on and fomented by Inconformists then to the great mischief to this Nation too too much favoured promoted and prosecuted by the then prevailing power The Fees and charges were then very high insomuch as some Ministers were almost if not altogether undone before they could get up thither and when they came by reason of multiplicity of businesse in the Commons House they staid there long and upon great charge paying high Fees still to the Serjeant or other Officers of the House whilest they lay under restraint which oftentimes was very long When a charge after long delay was given in then they gave their answer after a long stay too Then a Committee of many Members was appointed to examine witnesses which was done without oath then after a long time the cause was reported many of these Members not having heard the whole cause but some one part some another yet often concurring at the voting and reporting the cause to the house of Commons which was a strange kind of proceeding to call it no worse In the Star-chamber and High-commission none used to give sentence but such as heard all the cause and they usually excused themselves when they had not heard all the cause Now when the House of Commods had proceeded thus far upon the matter yet they had done little or nothing but vexed and undone a poor and perhaps guiltless Minister for they were to transmit the cause to the Lords House and there to begin it de novo examine the witnesses again upon oath which as before the other House could not do And here 't is to be considered whether or no it were not anceps perjurium a dangerous temptation to witnesses that perhaps have spoken too largely being unsworn will if but for fear of loss of Reputation confirm upon Oath what they have said without Oath It is to be feared also some poor men foreseeing this unevitable course of undoing them have either wronged their owne cause and betrayed their innocence by confessing themselves guilty or ad redimendam vexationem compounded with their prosecutors even to their own undoing or well nigh If there had been cause and that it could not properly in an ordinary way have been remedied by the proper competent ordinary Judges why should not the cause have been begun heard and determined in the
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
been writ about that ridiculous contradiction in adjecto of the two Houses coordination with the King the Monarch when as before is specified the King is the Head the Lords Spiritual and Temporal and the Commons the three Estates by several Acts of Parliament specified Lippis tonsoribus notum yet urged for designs mischievous abominably as we have felt As also that trayterous distinction of the Spensers Spensers Treason 'twixt the Kings Person and Office by two Acts of Parliament declared Treason yet in these late times maintained by too many Goodwins book for the justification of the murther of the late King and many other of that kind Goodwins book justifying the murther of the King Mr. Bucks book of Richard the third wherein he seems to impugne the right of the King from the daughter of King Edward the fourth wife to King Henry the seventh Mr. Bucks book of Richard 3. too much leaning to if not affirming Richard the thirds right by that monstrous Act of Parliament that illegitimates Edward the fourths issue In Sir Edward Cooks book entituled The third part of the Institutes of the Law of England Sir Edw. cooks Writings concerning High Treason and other Pleas of the Crown 1658. Printed at London by M. Flesher for W. Lee and D. Pakeman § Le Roy pag. 7. he puts it down there for Law upon the Statute of 25 E. 3. c. 2. De proditionibus That if Treason be committed against a King de facto and non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon granted by a King de jure that is not also de facto is void Strange would have been the consequence of this if Cromwell had been made King as some desired and a loyal man should have killed him in order to the restitution of the true King de jure our dread Soveraign King Charles the second Or should a loyal man for the same end have killed him though he had but de facto non de jure the title of Protector how far would that have extended by the words in the same § may be considered where he sayes that Statute of E. 3. is to be understood of a King regnant and as follows there and as he sayes most truly a Queen regnant is within these words Nostre Seigneur le Roy for she hath the Office of a King So perhaps it deserves to be examined whether some of note and power in the time of Cromwells Usurpation did not affirm that Cromwell was within these words Nostre Seigneur le Roy. In regard Sir Edward Cooks Writings are by many held in high repute and some have not stuck to style him the Oracle of the Law therefore his Writings require to be more strictly looked into and that if any errors be found therein they may be detected and expunged as being more dangerous then in other mens Writings not of so great repute Corruptio optimi est pessima Also it was advised Illegal and seditious speeches if it shall be thought fit that such Speeches as have been publickly made by any Judges or noted Lawyers upon the Bench or in any publick Assemblies against the Regal or Subjects Right or the Law of Nations which may give just offence to our Neighbours may be taken notice of and publickly declared against Such us that when that Act of 25 E. 3. was alledged to justifie Cromwells Usurpation and that Seigneur le Roy in that Statute included Cromwell the usurping Protector And that speech of a great Lawyer at the tryal of the Portugal Ambassadors brother when it was alledged that he was by the Law of Nations to be sent back cum postulatu to his Master the King of Portugal to be by him punished for his offence committed here and that that Commission for trying him here without the consent of the Portugal Ambassador was the first Commission that ever was granted here to try any Ambassador or his servant without the Ambassadors consent Even the Bishop of Ross Ambassador from Mary Queen of Scotland though she was de facto deposed or forced to renounce the Crown there when he had committed a great offence yet was onely dismiss'd and not further questioned But to all this and much more that Lawyer replied What have we to do with the Law of Nations if it be contrary to the Law of England One pretended afterwards to excuse him and that he spoke but according to the words in the Statute of 21 H. 8.21 where it is said We are free from any subjection to any mans Laws but onely to such as have been devised made and ordeined within this Realm for the wealth of the same c. which words are intended against the Papal Usurpation imposing Laws upon us As also if it be thought fitting The illegal Preface to the Propositions at the Isle of Wight that that Preface to the Propositions sent by the House to the late King at the Isle of Wight which seem to strike at if not to take away the Kings Negative voice in Parliament expresly contrary to many Acts of Parliament the Kings most known Prerogative and the most known Custom and Law of the Land be declared illegal and derogatory to His Majesties Prerogative and just right As also if it shall be thought fitting Rectifying of translation of some words that the translation of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Rom. 13.1 to higher powers altered to the supreme powers for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Pet. 2.13 is translated whether to the King as supreme The two Houses and Powers inferior many degrees to them have by some been interpreted to be meant by higher powers and strangely hath it been wrested if not exclusive of the King As also if it shall be thought fitting that that expression about the time of His Majesties coming over Illegal Declaration in one of the Declarations or Remonstrances that the Government was by the King Lords and Commons being derogatory to His Majesties Prerogative and Legislative power and the Government being in him radically and but derivatively and subordinately in any others for and under him Therefore to be considered of altered and amended As also The Printing-press if it shall be thought fit that the Presse be carefully looked into that no seditious Books or Pamphlets be vented to poyson the people or to confirm any in their bad principles The want of this care hath grown into a great Seminary of mischief which if nothing but our sad experience of it should make us more wary for the future As also A body of the Law to be framed if it shall be thought fit that according as was begun by the late Lord Chancellor the Lord Viscount St. Albanes which as 't is said King James put him upon a Body of the Laws should be digested and compiled