THE Law of Laws: OR, …

THE Law of Laws: OR, THE EXCELLENCY OF THE CIVIL LAW Above all Humane Laws whatsoever.

By Sir ROBERT WISEMAN, Knight, Doctor of the Civil Laws.

Together with a Discourse concerning the Oath Ex Officio and Canonical Purgation.

LONDON: Printed for R. Royston, Bookseller to the King's most Excellent Majesty. 1664.

The Epistle to the Reader.

Reader,

IF this Book were set forth in any other Language, for Forreigners to read, I were unavoidably driven to give them an ac­count why I had put my self upon so su­perfluous and so unnecessary an underta­king, as to extoll and commend that, whose worth and merit is owned by all the World, and which every where shines so brightly, that it cannot be obscured by any, either Tongue, or Pen.

For it is very well known to them, that the Civil Law is the issue and product of that great and mighty State, the Roman Empire, that led so many Nations and people captive by their Wisdome, as much as by their Valour; that was once the School of all Moral Honesty and goodness, and the stage, whereon the whole variety of humane affairs was represented.

Neither need I tell them, that what through the pros­perous success of that State, for which it was ordained, and what through the natural Equity that is to be read [Page]all along in it, and its being fitted for the general affairs of Europe, the Laws of most of the Europaean Nations (who indeed all of them anciently were subject to the Roman Government) are but as copies drawn from that original, borrowing that lustre of goodness they have, from it; and where their particular Laws faile, thither their Judicatories resort to be supplied.

They cannot be ignorant, That though every particu­lar Nation has some few Laws of their own, proper for their occasions, government, and people; yet no where beyond the Seas is there any profession or science of Law, but this; nor any Law accounted the Law of Nations, but the Civil Law onely: That time, pra­ctise, argument, and applying it to the several affairs of so many Nations where it has been used, has made it so perfect and so sufficient a body to decide all cases by, that are between party and party, and do not concern the publick government, that they stand in need of ve­ry few Laws of their own making; and without it no Laws they can make, would ever be able to serve their turn.

To those therefore that make such continual use of this Law in their Courts, and who suffer none to sit as Judges, nor plead at their Bars, but such as have been brought up in that faculty, and who strive to imploy those onely in all transactions between themselves and other Nations: to them, I say, to praise and applaud this Law, that is dignified by them so many several wayes, is so little needful, that it were almost imper­tinent.

But to make known to the people of this Nation to whom it is rendred now so contemptible, how excel­lent it is in it self, how rational; what a general appro­bation [Page]it has had with other Nations, and how very useful it may be to the publick welfare of this Nation divers wayes, it is a work so seasonable and necessary, that it may be done without either Apology, Preface, or reason premised; and is no more then the present state of things calls for.

For when it is considered, what an account it has been in amongst us for many hundred years together; how many causes, Civil, Ecclesiastical, Maritime, and Military, it dealt in; how the jurisdiction thereof ran through the whole Nation; how very little it was be­neath the profession of the Common-Law it self, how many professours and practisers it maintained, and how much it did enrich them; what a number of students it encouraged; what coercive power it was intrusted with­all, and the many Courts the employment thereof lay in: And when we see, that now the causes thereof are cantonized, and like a spoyl divided; some carried to the Courts of Common-Law, some to the Court of Equity, others sent into the Countrey, some left with­out any rule or regulation at all, and nothing left entire to the Civil Law; and when the solid reason of that Law is crowded out by vulgar reason, the professours thereof scattered, the study thereof discontinued, the very Law-books for want of use here, all transported beyond sea to other Nations, and all coercion taken away; It is so much worth the enquiring what the ground of this great change should be, that to be silent thereat were great stupidity.

That the fall of the Ecclesiastical jurisdiction might be a reason to suspend the exercise of that profession in some causes for a time, till it were again setled, I ad­mit. But why it should not under this present form of [Page]Government (if authority think fit) be restored again [...] as to a civil regulation of those very matters under the Civil Magistrate, no satisfactory reason can be rendred. I am sure, it can neither be rational, nor convenient, that they should be carried from the Civil Law, which was the known, established, and practised Law in those matters, unto the conizance of those, that have neither Law, nor rule, nor skill to try them; especially when the so doing does inevitably draw after it the certain ru­ine of that whole profession.

It is therefore very well worthy the most serious con­sideration of those that sit at the Helme; That, since there must be a triall of those matters still, and again attending thereupon to one or other, (which is the Game every body hunts after:) Whether the Publick is more concerned, that the profit of such conisances should flow into the purses of others, no way apt or skilful, then go to the maintaining and keeping up of such a learned pro­fession, which this Nation cannot be without.

And certainly, whensoever we see that profession laid aside (which for the publick good, I trust, I never shall) we shall find this Common-wealth of ours made very much inferiour and unequal to other Nations, with whom (as it is an Island, and now become an active one) it has and must have many wayes to do. In other things, as in strength, riches, and alliances, we con­tend for advantage and superiority with them, why should we then suffer them to over-match us in wit, dex­terity, skill, knowledge, wisdome, policy, reason, or judgment, which that learning above all other, and ex­perience together gives them?

The dealings that we may have with them, as they are not a few, but innumerable, even as many as there [Page] [Page] [Page]are things in the World to deal in: So some of them are of highest moment and consequence also; As, Right to Kingdomes or Provinces, by Donation, last Will, Suc­cession, or by Marriage; community or property of the Sea, and the rights of Fishing and trading there; free­dome from Customes and other immunities granted to for­reign Merchants; Precedency, amongst the Embassa­dours of Princes and Republicks; Promises of protection and aide against enemies; Entertainment and harbouring of Traytors or Rebels, Interpretation of publick Leagues or National Contracts; Not admitting of Embassadours, or detaining them, or using them in any uncivil manner; Making of War, or contracting of Peace; Sending sup­plies to our enemies, or oppressing our friends and confede­rates; Imbargo's, seizing upon our Merchants goods at land, or stopping our ships or goods at Sea; The arbitra­ting of differences between Nation and Nation, frequently referred to Princes or other States; Of the force of natio­nal Contracts, and of their duration, whether they shall bind successours, or die with the Princes that made them; Latitude of Territory and jurisdiction, either upon Sea or Land. These and such like are the transactions and mat­ters, that may be frequently agitated & dealt in between us and other Nations; wherein before we fall to an open War, we chuse to reason and expostulate the mat­ter with them; sometimes we think it necessary to re­monstrate the right of our cause to other Nations; some­times to declare the state of the business to our own peo­ple: Neither of which can be done effectually and with advantage, nor shall we be able to hold any such argu­ment convincingly, if we have not the perfect knowledg of the Law of Nations and the learning of the Civil Law; which to be sure, is the onely kind of Reason, [Page]that other Nations (knowing no other Common Law or Rule besides it for such matters) will encounter us withall.

And since we have such great need at this time of Ar­mies by Land, and Navies by Sea, to defend us from factions at home, and enemies abroad, I would put it to those of the Military order, to consider, how not onely usefull, but necessary that profession is for carrying on of Military business also, as well by sea, as by land; & that all the military discipline, & good government that they have in their Armies, and the right which they are enjoy­ned to afford to their very enemies, is directed by the rules and principles of that profession: for it must be ac­knowledged, that the Municipal Law, as to the carrying on of Martial affairs, is altogether impertinent, and of no use at all; the same being a Law useful but in peace onely.

But there are peculiar Laws, and a proper discipline for the state of War; Sunt & belli sicut & pacis jura; and they are accommodated to the very nature and exi­gencies of it: some of which are, That there be solemn denouncing of the war intended, that all dissenters may withdraw in time, and to divert other Nations from adhering; That it be prosecuted by just and honourable ways, without treachery, corruption, breach of faith, poyson, or secret assassination, which the gallant Romans did dis­daine to act, though for never so great a victory: That all articles and capitulations made be strictly kept and ob­served, even towards Turkes, Pagans, Jews, or Infidels; That they be interpreted in the plainest and most equitable sense, without any art or subtilty at all; That an enemy af­ter he has yielded himself, be not kill'd, but kept alive for exchange, or ransome; That what is gotten from the ene­my, is good and lawful purchase, though it was newly taken [Page]from some of our own people or confederates, so that it were but once brought safe into the enemies Quarters; That the enemies countrey, when it offers to yield, be not laid waste, burnt, or de­stroyed; That when a Town is to be stormed, women, children, aged, Ecclesiastical persons, so far as is possible, may be spared; That it be free to friends or confederates to trade with the enemy, so they carry neither victuals, money, armes, or ammunition; That the Countrey, through which the Army passes, no offence be­ing given, be not injured, but kept from spoyl and rapine; That Heraulds or messengers sent from the enemy be received and dis­missed with safety; That strictness and severity of discipline, greater then in peace, be maintained within the Camp; the vali­ant advanced to honours, and admitted to partake in the spoyl which he did help to get; the cowardly disgraced, the disobedient rigorously chastised, the incorrigable cashiered, and the aged and worn out souldier be dismissed to ease with reward and honour; That a difference of degrees be observed, and a subordination made, as the places of command differ; That for Military offen­ces, or contracts and promises made between souldier and souldi­er, the conisance thereof be in the Court Marshall, and to be tried by the Law of Armes onely; That Hostages be taken and kept, and may be put to death, if the enemy prove perfidious; That neither friends goods coming in an enemies bottome, nor a friends ship, though carrying enemies goods in her, be taken as prize; That when a victory is gotten, the enemy subdued be used with all clemency and moderation; That Priviledges be granted to souldiers beyond other men; with an infinite number more, which are no where to be found collected and laid together, but in the books and writings of the Civil Law; which is the onely proper learning to teach and instruct in those matters.

For it has been the Civilians work, to draw together as it were into one body and Systeme, all that the Civil Law it self does afford, and whatsoever else can be gathered from [Page]the testimonies of the ancient Philosophers, Historians, Poets, and Orators, in what they are all, as it were by the light of nature, consenting in one and the same judgment; also what has been delivered by the ancient Fathers and most approved Canons of the Church on that subject; and especially to bring into argument, what has been constantly upon the same occurrences in war, judg'd and practised by the most War like and Heroick Nations, that have been; as the Graeci­ans, Assyrians, Medes, Persians, Lacedaemonians, Carthagini­ans, but especially the Romans, with whom for experience & discipline in War, and justice and bravery towards their ene­mies; no Nation that ever acted on this great Theatre of the World, is to be compared: And so by these helps, the Laws of War in use at this day, have been made and perfected, only through the Civilians pains and industry; neither are they to be met with any where together, but in their books and wri­tings.

And therefore since this profession is so useful and necessa­ry for the souldiers business also, that they cannot promise to themselves any good order, wise conduct, or happy success with their Martial enterprizes, but by that light and directi­on which it affords, it is evident, that it could never be worse spared or discountenanced, then now at this time. Which I humbly leave to be further thought of by the wisdome of those that rule over us.

And so desiring thee to excuse me this once, for appearing thus in publick, being upon so pressing an occasion, as to re­vive (if by such weak endeavours it were possible) a whole profession, almost quite expiring, I bid thee farewell, and remaine,

Thine in all possible respects whatsoever, Ro. Wiseman.

The Arguments of the Chapters of the First Book.

  • CHAP. I. THat a Law ought to be agreeable to true Reason. page 1
  • CHAP. II. That what Reason teacheth, should be made the subject of a Law, is no superfluous, but a profitable thing. p. 22
  • CHAP. III. What is here meant and intended by Reason. p. 24
  • CHAP. IV. That Reason is not so strictly required in the Law that or­ders the affairs of State, as in that that settles the diffe­rences that arise between man and man. p. 33
  • CHAP. V. That the customes of a Nation ought in like manner to agree with reason. p. 36
  • CHAP. VI. Where Law or custome is wanting, to judge by president or example, has no defence in reason. p. 38
  • CHAP. VII. That they are great advantages, which a Nation has by ru­ling by a such a Law as is rational. p. 46
  • CHAP. VIII. That Christian Nations having entertained the Civil Law into their Territories, have thereby acquired to them­selves the most rational Law that has been ordained, as by the constitutions thereof will appear. p. 51

The Arguments of the Chapters of the Second Book.

  • CHAP. I. THat the greatness and the splendour of the Roman Empire does evidence the singular virtue of the Law it self, to which, as to its proper cause, it may be ascribed. page 97
  • 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. p. 103
  • CHAP. III. That time and intervenience of fatal Accidents that has swept away so many States, together with all their Laws, and has quite abolished the Roman State it self, has not yet been of force to abolish the Roman Civil Law, but that it is extant still. p. 110
  • CHAP. IV. That forreign Nations in doing of right between man and man, do mainly practise and make use of the rules and dictates of the Civil Law. p. 128
  • CHAP. V. The general admittance and use of the Civil Law in for­reign parts, is acknowledg'd by our selves here in Eng­land. p. 133
  • CHAP. VI. The Civilians themselves do not enlarge the use and pra­ctise of the Civil Law in forreign parts, further then Mr Selden himself in his writtings grants it to extend. p. 139
  • [Page]CHAP. VII. No Municipal Law is sufficient to meet with the multi­tude and variety of cases and questions that will happen at Land, at Sea, and in forreign parts: Which has caused so many Nations to make use of the Civil Law, where it is proper and pertinent to their affairs, to joyn with and help their own, rather then to be without any Law at all, and to be subject to the mischiefs of arbitra­riness, folly, and violence. p. 144
  • CHAP. VIII. That the reasons are strong and weighty, upon which so many forreign States do direct and order the business of their Tribunals most by the prescript, reason, and equity of the Civil Law. p. 153
  • CHAP. IX. The admittance and sway of the Civil Law in forreign parts, is yet further verified by the testimonies of Sr Tho. Smith, and Dr Hakewill, the one a Statesman, the others a famous learned Divine of our own, and by some other remarkable institutions within this Nation. p. 159
  • CHAP. X. The general name of Jus Civile, The Civil Law, is sig­nally for Honours sake peculiarly ascribed to the Roman Civil Law, and to no other Law. p. 164
  • CHAP. XI. The Art and knowledge of doing the purest right and most natural justice, is laid down in the books of the Civil Law; and how it came by degrees to that perfection, that now we see it in. p. 166
  • CHAP. XII. An Answer to the main Objections that are now adayes made against the continuance of the Civil Law within this Nation. p. 173

VVESENBEC. Parat. Dig. De Just. & jur. nu. 17.

IN constituendo expoliendo (que) jus Civile, Populus Romanus tantum reliquis Nationibus, velut & gloria belli praesti­tit; ut si omnia omnium gentium instituta, mores, leges in unum conferantur, nequa­quam sint cum his Romanorum legibus & institutis, prudentia, aequitate, pondere, ubertate, ullo modo comparanda.

The people of Rome did not onely go beyond all Nations in the world besides in renown for their warlike enterpri­zes, but so much in establishing of Laws too; That if all the Laws and customes of all other Nations were all laid together, they would come far short of the Roman Laws, both for wisdom, equity, weight, fulness.

LEX LEGƲM: OR, THE LAW OF LAWS, &c.

CHAP. I.
The first Book.

That a Law ought to be agreeable to true Reason.

THere is nothing under the Sun, that doth more conduce to the Prosperity and Peace of a Na­tion, then fitting and well-composed Laws.

In the framing whereof, those that have the Ordaining Power, most be heedfull to observe many things, to make their Lawes proportio­nable to so happy and so blessed an end.

A Law must not enjoyne any wicked, ignominious, or unbe­seeming things, these being in intendment of the Civill Law impossible. Quae fact [...] laedunt pietatem, existimationem, vere­cundiam nostram, & (ut generaliter dixerim) contra bonus mores [Page 2]stunt, nec facere nos posse credendum est, sayes Papinian. L. 15. Co. de condit. Inst. Those actions which wound Piety, Reputation, Modesty, or in brief, are generally disallowed by the practises of sober men, may be reckoned in the number of those things which Nature admits not to be done.

It must be not obscure, but certain in the Intimation, just in the Precept, profitable in the Execution, agreeing with the form of Government, customes, places and time, where and when it is to be applyed. It must be sufficient for the defence of Propriety, for the encouragement of Labour, for the safeguard of the Subjects persons, for determining Controversies, for re­ward of noble Actions, and excellent Arts, and rare Inventions, for promoting Trade, enriching the People, and must wholly advance the publick good.

But above all things, the care of the Legislative Power ought to be solicitous in nothing more, then to frame and fashion their LawesPlutarch say­ing that Kings ought to be governed by Lawes, ex­plains himself, that this Law must be a word, not writ­ten in Books, and Tables, but dwelling in the mind; a living rule, the interiour guide of their manners, and monitors of their life. by that great and exemplary pattern, the Law of Na­ture, and to enact or decree nothing dissonant unto true inbred and Natural Reason; whereby a Man worketh according to God, according to himself, Nature, the universal order and policy of the world, quietly, sweetly, and as silently without noise, as a Ship that is not driven but by the naturall and ordinary course of the Water: For when the Wisdome and Power of God first be­stowed upon Man Ʋnderstanding and Reason, he intended them as guides and directors in all the actions of his life, and thereby to discerne what was good and what was evill, by that very light that shined within him. When therefore the commands of a Nation are irrationall and senselesse, that light is as it were put out and extinguished, and Subjects are made to obey rather like Beasts them Men.

And therefore Tully said, as he is quoted by Carbe, Tract [...] de legib. lib. 6. dist. [...]. Nos legem bonaurd mala; nulla alia ratione nisi naturae normâ dividere possumus, We cannot discern a good Law from a bad, other­wise, then by comparing it with the Law of Nature. And therefore he will have it to be justorum injustorumque distinctio, ad i [...]am antiquissimans & rerum omnium princip [...]m naturam ex­press [...]: a rule discriminating that which is just, from that which is unjust; delineated and drawn forth by the old Originall of [Page 3]Nature, and sayes it is the highest or chief reason grafted in Nature, commanding those things which are to be done, and forbidding the contrary.

And again:Lib. 2. De Inven. Initium juris à natura profectum, deinde quaedam in consuetudinem ex utilitate ration [...] venerunt, postea res à na­cura profectas & à consuetudine probatas legum metus & religio sanxit: The beginning of all Law did proceed from Nature it selfe, but afterwards there were certain things which were by evidence of Reason found necessary, and thereupon brought into common practise; and at length, the fear and reverence of Laws did settle and enforce what had been so taught by Na­ture, and Custome it selfe had allowed of. So that the Act of the Law, is but to see that effectually observed and executed, which Nature hath ordained, and which the common Reason & Custome of men doth declare to be just, equal, and necessary.

And sometimes the sameLib. deleg [...] lib. 1. Tully, styles Law the very force of Nature, the Ʋnderstanding and Reason of a wise Man, the rule of right and wrong. AndLib. 3. de rep. defining Law as it ought to be, ra­ther then what generally it is, he terms it right reason, spread over all people, durable, everlasting; which, as fire burns eve­ry where alike, is not one at Rome, and another at Athens, one now, and another hereafter, but being the same and unalterable, serves for all times, and runs through all people, which began not when it was first written, but when it first sprung forth from Nature.

Plato In Min. de rep. & delegib. will also have it a reasonable rule, leading and dire­cting men to their due end, for a publick good, ordaining pe­nalties for them that transgresse, and rewards for them that obey. And Isidore, who requires other properties in a Law, requires this of Reason too; for in hisLib. 3. cap. 3. Etymologies he sayes, Lex erit omne quòd ratione constiterit, duntaxat quòd religioni congruat, quòd disciplinae conveniat, quòd saluti proficiat; A Law shall be that, which may stand with Reason, agree with Religi­on, suit with the education and dispositions of the people, and be beneficiall to the publick welfare, WithPrima fecun [...]ae qu. 97. Ar. 1. Aquinas also, Lex humana est quoddam dictamen rationis, quo diriguntur hu­mani actus; Humane Law is a dictate of Reason, by which hu­mane acts are steered. And again,Quest. 91. Art. 4. Lex nihil aliud est, quâm [Page 4]quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata: A Law is nothing else but a transferring or applying of Reason to the common good, ma­nifested to all the people, by him who hath care of the Com­mon-wealth. The Civil Law speaks the same thing,Lib. 1. Dig de Legib. Lex est commune praeceptum, virerum prudentum consultum, A Law is an universall and generally known precept. Notitia aequi & bo­ni à natura omnibus indita, asLib. 1. Gothofred explains it, ingraft­ed in Man by Nature, and the result of sage and understanding men.

AllMinsinus Inst. de jur. Nat. gent. & Civ. in princ. Civilians without any contradiction doe consent and a­gree, that the true Law of a State is but Determinatio juris na­turalis, a declaring or expounding in such particular cases or accidents, as most frequently happen amongst men, what the Law of Nature intends by its generall precept; or it is a rationall distinguishing upon the Law of Nature, making it to be of force in some cases, not of force in others, with such directions for observing the same, and kindes of punishment to the offenders, as the wisdome of each state shall judge most rationall, and most convenient. Not to Steal, not to commit Adultery, not to Kill, Nature it selfe taught in generall: but who should be said to Steal; who to commit Adultery; who to Kill; what proof should be sufficient to convict a Man of these crimes; who might be the accusers, how and in what manner, and before what Judges the offenders should be proceeded against; what punishments they should suffer, and after what time no accusa­tion for them should be heard, because the Naturall Law did not teach in particular, therefore the Law of every State doth determine them; which as it is done in pursuance of the primary precepts of Nature, so must it be done too with the soundest judgement and reason, having an eye to the matter of the pre­cepts, to the nature of the people, and to the state of the Com­mon-wealth it selfe. And these severall particulars being thus determined and put into a Law, they adopt to themselves the name of a National Law. L. 6. Dig. de. Just. & Jur. Jus Civile, sayes Ʋlpian, est, quod neque in totum à naturali jure vel gentium recedit, neque per omnia ei servit; Itaque cùm aliquid addimus vel detrahimus juri communi, jus proprium, id est, Civile intelligimus. The [Page 5]Law of a people is that, which neither doth wholly estrange it self from the Law of Nature, or of Nations, nor doth strictly follow them in all things neither: when therefore we adde or di­minish ought from the Ʋniversal Law, we make it thereby a pe­culiar Law, and give it the denomination of a Civill, or Muni­cipal Law; so that the Roman Law will have no other mate­riall difference to be between the Law of Nature, and the Di­ctates of Reason, and the Law of a State, but that what was be­fore common and universall in nation, is now by distin­guishing it into cases, by fitting it with proper circumstances for more ready execution, and by moulding it into a form, ap­propriated to peculiar use.

The Canon Law that enumerates all the essentiall properties of a Law, doth exact also that it be honest, just, and agreeable to Nature:Cap. 2. Dist. 4. Erit lex honesta, justa, possibilis, secundum natu­ram, secundum patriae consuetudinem, loco temporique conveniens, necessaria, utilis, manifesta quoque, ne aliquid per obscuritatem in captionem contineat; nullo privato commodo, sed pro communi ci­vium utilitate conscriptae: A Law shall be honest, just, possible, according to Nature, suiting with the customes of the Coun­trey, agreeing both with place and time, necessary, usefull, and also plain, lest through obscurity it may ensnare; nor made for private advantage, but for the common good of all the people.

Thus by the judgement of all, Ratio est anima legis; Lex tunc laudatur, quando ratione probatur: Nature is the Fountain, and Reason doth animate and make the Law, and gets it the praise and acceptation. This indeed is a lightning and raye of the Divinity; Ratio nihil aliud est, quam in corpus humanum pars divini spiritus immersae, sayesEpist. 66. Seneca: It is the stream and dependance of the eternall Law, which is God himselfe and his will. Quid natura nisi D [...]us, & divina ratio toti mundo & partibus ejus inserta? What is Nature but God, and Divine rea­son inserted into the whole world, and immixed in all the parts thereofL [...]x nihil ali­ud est, nisi recta, & à numine Deorum tracta ratio, Cicer. Philip. 11.? The Law of Moses in his Decalogue is an outward and publick Coppy, the Law of the twelve Tables and the Ro­man Law, the morall instructions of Divines and Philosophers, the advertisements and counsells of Lawyers, the edicts and ordi­nances [Page 6]of the best Princes are no other but draughts and parti­cular Pourtrayes of it.

If therefore there be any Law, that varieth from this first and originall Mistresse, commanding where she forbids, or forbid­ding where she commands or allowes, it is a monster, falshood, and error. As for example, Adversus periculum naturalis ra­tio permittit se defendere. Itaque si servum tuum latronem insi­diantem mihi occidero, securus ero, sayesLib. 1. Dig. Ad l. Aquil. Gaius. Natural Rea­son gives a man license to defend himself against any danger, therefore I am in no danger of the Law, if I kill thy Servant that lyes in wait to mischief me. Again, Si quis percussorem ad se venientem gladio repulerit, non ut homicida tenetur; qui [...] defensor propriae salutis in nullo peccásse videtur, sayes Gordian theLib. 2. Co. Ad l. Cornel. de Sicar. Emperor: If a Man shall strike him dead that comes to de­stroy him, he shall not be punished as a Man-slayer, because the preserver of his own life offends in nothing. That Law then surely is very unnatural, that inflicts forfeiture of any part of his estate, though it requires not either the whole or his life, up­on any person, for slaying another in his own just and necessa­ry defence; when as if he had not done as he did, he must have been in perill of losing his own life.

It is as prodigious to naturall equity and good reason, that a man that is unhappily peradventure doing of a lawful act, nor purposing the least mischief to any person, but by meer chance author of anothers death, should be subject to any punishment or losse whatsoever. Mera infortunia nec paenam mereutur, nec ad restitutionem damni obligant, sayesDe Ju Bell. Lib. 3. cap. 11. sect. 4. Grotius. No man deserves to be punished, or is bound to make any reparation for pure casualties. If an arrow being shot at a Beast or at Buts, lights upon a Man and kills him; or a stone cast over an house, or an arme of a Tree being cut, and falling, where seasonable war­ning is given to all that are neer to take heed, be the cause of anothers death, such casuall Homicide is not in any kind punish­able.Lib. 5. Co. ad l. Cornel de Si­ [...]ar sect. 5 Inst. de l Aquil. A Law therefore that punisheth a man for such adven­ture or misfortune, is not a just or rationall Law, being indeed repugnant to the Law of God, which protected such persons, and appointed them a City of refuge to flye unto;Numb. 35.15.22. Josh. 20.3. Deut. 19.5 for such an act happening in such sort, seemeth to be the work of God himself.

It is a cruelty also, which Nature and Reason abhorreth, that a King, who ought to be as a Sheepherd and Guardian of his people, should have an established liberty to endanger his Subjects lives and liberties, by a criminal accusation brought against them; and yet they be denyed the natural liberty and freedom to defend themselves, by bringing that Evidence, and assistance of Counsel, that may serve to clear them. Indeed all kind of awfull submission and reverence is due to the Prince from his Subject; but that is no way impeached by a modest and fair defence. And therefore by the Civil Law, in any mat­ter of complaint that was brought by the publick Exchequer, whether Criminal or Civil, the defendant had his full defence most free. Defensionis facultas danda est his quibus aliquam inquietudinem fiscus infert Lib. 7. Co. de Jur. fise.: Liberty of defence ought to be granted to those, whom the Exchequer brings into any trouble. And whosoever is impeached as a Malefactor, that Law is so indulgent to him, till he be convicted, that if he be in Prison, the Magistrate is to make known by open Proclamation, what day he intends to hear him; Ne hi qui defendendi sunt, sayesLib. 18 Sect. 9. Dig. de Quest. Paulus, subitis accusatorum criminibus opprimantur; quamvis defensionem quocunque tempore, postulante reo, negari non oportet; adeo ut propterea & differantur & proferantur custo­diae: Lest they which are to make their defence, be too sud­denly brought to tryall by their Accusers, and thereby destroy­ed: Howbeit the Court shall not deny to hear their defence at any time, when themselves will ask it; for which cause, the Pri­soners may have a certain time set at first, and then if cause be, further day also may be given. And though, when the person accused is not under restraint, if he shall not appear to answer the accusation, some time within a year after Summons had, his estate is irrecoverably lost, and forfeited to the Exchequer, and for that he shall never be heard moreLib. 4. Dig. De requir. vet absent. damn.: yet as to save him from personall punishment, neither the expiration of a year, nor the efflux of any time shall barre him, but that he may still be heard to defend himselfl. 2. co De Requirend. rei.: For self-preservation is soHoc & ratio doct [...], & mor­gentibu [...] & se­r [...] natura ipsa prascripsi [...], ut omnem semper vim à corpore, à capite, à vitae suae propuisarent, Cic. p [...]o M [...]l. natural, that a Law that is set up to infringe it, may justly seem to fight a­gainst nature.

These Laws therefore, and such like, as doe thus crosse and encounter common sense, and natural Reason, are no fitter to be styled Laws, then the dead Carkasse of a Man, that is destitute of the essentials of Life, Soul, and Reason, can be called a Man. And therefore Tully did set down the truth, when he taught,L. 1. de legib. Eos qui perniciosa & injusta populis jussa descripserint, cùm contra fecerint quam polliciti professique sunt, quidvis potius tu­lisse quam leges. They that did promulgate to the people per­nicious and unjust Laws, since they did clean contrary to that that they alwayes promised and professed to doe, they might better be thought to enact any thing else then Laws.

And though it be never or very rarely seen, that any State doth suffer any law to passe them, which doth directly crosse the chiefe and fundamentall Lawes of Nature, or which opposes the first and main principles of common Reason, as to give direct licence to Atheisme, Theft, Adultery, Homicide, invading of the rights or possessions of others, Breach of Faith or Cove­nants, Rebellion against Magistrates, Disobedience to Parents, abandoning of Children or such like, (for this were too odious and detestable, and would presently dissolve all society and go­vernment:) Yet the care of a Legislator doth not determine here, but must extend further also, if they will have their Laws to be of one complexion and likenesse, and all to agree with the Lawes of Nature, and the Dictates of sound Reason; for to each of those first and fundamental principles, there are divers infe­riour things and actions appertaining, which doe mediately or immediately depend upon, and refer unto them, standing some in a nearer, others in a remoter distance from them; but all so knit and conjoyned with the first and main principle, to which they are subordinate, and do as it were wait upon, that if any of them be setled by a Law, or practised otherwise then they ought to be, the first and great principle also by consequence is violated & broken, or at least an occasion offered to violate and break it: and therefore the Legislators care must be to settle these in­ferior and subordinate things also in such wise, as that they may not encounter with any chief or fundamental rule of Nature, to which they may have any reference or application. For in­stance, That Parents should educate their Children, and supply [Page 9]them with maintenance, is a Law proceeding from Nature. And though no humane Law was ever found, that discharged Parents of such their duty, yet if a Law shal leave it free to a Parent when he dyes, to give away all from his own Children to a stranger, or to dispose of all to one child, without making any provisi­on for the rest; is not that fundamentall Law of Nature there­by consequentially infringed and broken? By the Roman Law therefore which does strictly tye all Parents to this DutyCo. de Alend, Liber., there is such a proportion due to Children out of their Parents estates, when they dye, as the Parents, but upon certain cau­ses just and true, cannot give away from them, which was the third part, if there were four children or under; or half of the whole substance, if there were more, amongst them all; the rest they might freely give away to whom they pleased. And this the Law made so sure to them, that though the Father for some offence did suffer Death, and his Estate was confiscate, yet half the Estate should goe to the Children notwithstanding: Ne alieno admisso, graviorem poenam luerent quos nulla contin­geret culpa; Lib. 7. dig. de Bon. damna [...] Lest the Fathers fault should prove a sharper pu­nishment to them that offended not, except the fault were Trea­son, in which case, for terror to others, they lost all: Ʋt chari [...]as liberorum amiciores parentes reip redderet Lib. 8. dig, quod metus caus. sect. fin.; That their very af­fection to their Children, knowing how greatly they were like to suffer after them, might make them timorous how they so offended.

Likewise, if the Parent shall make no Will, nor make any disposition of his Estate in his life time, but dye intestate, if, when one of the Children hath entred upon his Fathers Estate, though by lawfull Aathority, the Law of a State shall adjudge the whole Inheritance unto him, and not admit any of the rest of his Brethren and Sisters, how many soever they be, to divide or to have any share with him, neither in reall Estate, nor per­sonal; surely this is a contradiction to that Original Law of Nature, that bindes Parents to provide for all those that are of the same Flesh & Blood with them; for what themselves cannot doe being dead, their Estates ought to performe. The Civil Law therefore, making no difference between Land and Goods, nor between Eldest and Youngest, nor Male and Female, di­vides [Page 10]the whole Estate, reall and personal, equally amongst the Children. Ratio naturalis quasi lex quaedam tacita, liberis pa­rentum haereditatem addicit, velut ad debitam successionem eos vocando, sayesD. l. 7. Dig. de Ben. damn. l. 7. Dig. si Tab. testam. null. s. 1. Paulus: There is as it were a secret Law made by Nature her selfe, that settles the Parents Estate upon the Children, calling them to succeed as in their proper right. And, Omnia quae nostra sunt, liberis nostris ex voto paramus, sayesLib. 50. Dig. de B [...]u. libert. sect. 2. Tryphoninus; All that we doe possesse, we professedly destine to our Children. Neither does it give one childe any advantage against the rest, that he has first lawfully got into possession, for he has but thereby made himself subject to be sued by the rest, to come to a Partition with themTot. Tit. dig. & Co. Famil. creise.; for Action to divide, being once brought, the Judge is told byLib. 25. sect. 20. Dig. Eod. Paulus, what he must doe; Index familia erciscundae nihil debet indivi­sum relinquere; The Judge of a Partition ought to leave nothing undivided. A Law then that forbids Parents to cast off the care of their Children, as nature does, does not agree with Na­ture, nor with it selfe neither, if it does not as the Civill Law does, make its other constitutions suitable, and put it out of the power both of Parents and Children, by fraudulent wayes to make their grand Law of Nature, and Dictate of Reason fruit­lesse and of no effect.

Likewise it is not sufficient, that the Law of a State has not declared any thing against Honour, Reverence, and awful re­spect, which Nature it selfe has enjoyned Children to yeild unto their Parents, except it does dispose and order the actions and demeanour of Children answerable to that very duty; for if a State shall give Children a freedome to bring like actions and accusations against their Parents as against others, or to Marry without their consent, or to give in evidence against them, or shall not punish them when they offer violence to their Parents, or speak reproachfully against them; the reve­rential respect so due by Nature to Parents, will soon be turned into contempt and scorn. The Civil Law therefore has not onely said, Filio semper honesta & sancta persona patris videri debet Lib. 9. dig [...] obseq. parent. & pat [...]on. p [...]ae­stand.; The person of a Parent ought to be reputed by a Child as Venerable and Religious: But in order to this, it also has forbidden Children to Marry without their Fathers consent first [Page 11]obtained, which if they doe, the Marriage is made voidLib. 18. Dig. de vit nupt. l. 7. Co de nupt. Inst. eod. in princ.. Like­wise, Si filius matrem aut patrem, quos venerari oportet, con­tumeliis afficit, vel impias manus ei infert; praefectus urbis de­lictum ad publicam pietatem pertinens, pro modo ejus vindicat: If a child shall uttter approbrious words of Father or Mother, whom he ought to have in veneration, or shall lay wicked hands upon them, the Magistrate shall punish it as a publick of­fence, and as the quality thereof deservethLib. 1. Dig. de obseq. sect. 2.. It will not suf­fer Children to bring any criminal accusation or exception a­gainst their Parents, whereby their credit may be empairedL. 2. dig. cod.; nor commence any suit at all against them, except special leave from the Judge be first gottenLib. 2. & 13. Dig de inju [...] vot.. Nor put a parent to the Oath of calumny,Lib. 7 sect. 3. dig. de obsequ. as may be done to all parties besides, that are in judgement, lest it should thereby be suspected, that he does ca­lumniate with his own Child. Nor shall a Child be heard as evidence against his Parent, though he offers himselfe to be a witnesse against himLib. 6. Co. de Test.. Again, the Lawes of all States professe to abhor all fraud, deceit, and circumvention in all contracts and dealings amongst men, as Nature it selfe and the common voice of Nations has forbidden; for but upon confidence of honest, upright and fair dealing, no trading, intercourse, or correspondence could be secure. Yet if the Law of a State shall onely admonish all that buy, barter, or excchange, to be cautious and wary at their own peril, and when they be cheated with any unsound & corrupted Merchandise, or in the price be­yond all measure, if it shall leave them helpless & without relief: Or if a State shall give licence or toleration to debtors to passe & convey away all their Estates, thereby to deceive their Credi­tors, so it be done before action brought: or if practises of col­lusion may be used, or feigned actions brought under counter­feit and fictitious names, and in colourable and fallacious forms, on purpose to defeat others of that right which was intended them, or to delude the Law, by transferring a right thither, whither lawfully it ought not to goe; where then will honesty, truth and faithfulnesse, so requisite in all affaires acted amongst men be? And therefore the Civill Law does not onely say in the generall, In omnibus contractibus bona fides requiri­tur; And, Naturalis suadet aequitas, ut ex bona fide contraha­tur: Schenidw. Inst. de action. s. [...]ctionum. nu. 6. [Page 12]All Contracts must be made with honesty, and natural Equity invites us to honest dealing. But it comes to particulars also, and will allow of deceit no where: for if a man be decei­ved in the price of a Commodity bought, supra dimidium, above half the value of it (for so far as to half, inequality of value is born with for avoiding endless challenges, Et n [...] omnis obligatio emptionis & venditionis semper sit in incerto, that all uncertainty in buying and selling may be removedl. 2. co. de re­scind. vend.) the seller at his election shall be enforced either to take his commodity again, or restore to the buyer what he has taken above the true worth of it. Im­modica laesio excedens dimidium justi pretii, gravior est quàm ut toleretur: an immeasurable prejudice, which exceeds half the just value, is more than can be born withall. But if the fraud be not in the price, but does infect the contract or act done in ano­ther kinde, the Judge has commission either to disannull the thing, or to take such order that the deceiver may not gain by his evil subtilty,l. [...]. Dig. fiquis [...]aut. l. 13 q. s. 1. di. de reg. jur. 2. nor the other lose by his simplicity and weak­nessl. 155. Dig. de reg. jur..

If a diseased or unmerchantable commodity be sold, and the defects thereof not visible, the Civil Law will compel the seller to take it again, and give the buyer his money back:Dig. De adi. edict. Or if a seller shall tell the buyer, that the thing fold is thus and thus qualified, by which, the buyer that cannot see whether it be so or no till some good trial had, is induced to give the more, and afterwards it is found clear otherwise, the seller is to give so much back, as the thing is lesse worth by those qualities which are wanting. Nam ea quae commendandi causa in venditionibus dicuntur, venditorem obligant, nisi palam sint: Those qualities or conditions, which any thing that is sold is commended for, must bee made good by the seller, except they bee such as the buyer may be by his own view certified, that they are not so good as they are spoken.l. 43. Dig. de contrab. crupt. Likewise if a man shall sell Land, House, or any thing else, to which he cannot make a good title, but is recovered by another, though he never undertakes to warrant it or make it good, yet emptorem indemnem servare de­bet, he shall save the buyer harmlesse, because it doth naturally arise without any special covenant out of the bargain it self, that the buyer shall either quietly enjoy the thing, or at least be in­demnified [Page 13]by him that sold it.Lib. 11. Dig de act. empt. 16. co. de evict. And if a man shall pass away his Estate to defraud his Creditors, leaving nothing, or not enough in himself to satisfie his just debts that he had contracted be­fore; the Civil Law, without distinguishing whether it was done before action brought, or after, revokes it out of the hands into which it was put, and reinvests the debtor in it, and makes it as liable to his debts, as if no such thing had been done.Dig. quae in fraud. cred. Neither does it onely disallow but punish also those that do prevaricate and help the cause of their adversay, by waving their own just pleas, and wilfully failing to prove what they may, and in shew undertook to do.Di. de prava­ricat. It will not suffer any such combination or practise of colluding to have any effect to the taking away or prejudicing of the right of any person that is concerned. For if the Executor of a Will shall combine with any of the next of kin to make the deceased dye intestate, and there­upon does faintly defend it in Court where it is in question, and subducts or conceales those proofs that should uphold it, whereby for want of proof it comes to be overthrown; this shall not prejudice the legataries; for they shall notwithstan­ding this Judgement thus by fraud obtained, be heard to main­tain and set up this will again.Lib. 14. Dig. de appellat. And as no man shall be pre­judiced, so none shall reap any advantage by the fraudulent pra­ctise of another neither, though he was no party nor actor in the fraud himself; Alterius circumventio alii non praebet actio­nem. Lib. 49. Dig. de reg. jur. One mans-fraud shall not create in another any right to sue.

The Civil Law can as little endure that the true sence and meaning of a Law should be destroyed by a fraudulent interpre­tation that keeps the words, but perverts the end for which it is made: In fraudem legis facit, qui salvis verbis legis, sententi­am ejus circumvenit; fraus legis fit, ubi quod fieri noluit, fieri autem non vetuit, id fit. Lib. 29.30. Dig. de legib. He deales deceitfully with the Law, that transgresseth the true intent of it, though he does not tre­spass against the formal and precise words. And therefore when the Law forbids a man to settle any more upon his Bastard, than what will barely keep him alive, it will not permit him to settle any superfluous estate upon any other person for that Bastards use, or the Bastard to receive any such estate from his Parent by [Page 14]another hand: Cum quid una via prohibetur alicui, ad id alia via non debet admitti: ThatReg. 84. de reg. jur. in 6. which cannot lawfully be done one way, or directly, must not be done indirectly, or by ano­ther.

In like manner, as nothing is more precious among men than Life, Property, good Name, Liberty, and the right of Contracts; in the which the whole civil interest and welfare of all people may be rightly said to be comprised. So it is not enough to provide in a general way for them neither; for it does not suf­fice to declare by a Law, that neither the Life, Property, nor Li­berty of any Subject shall be taken away, but by course of Law, and a lawful trial first had; nor to forbid calumnies and slanders, nor to command that the contracts and agreements of men shall be mutually observed: but a special and most vigilant care is to be had also, that all proceedings of justice, when a suit is brought concerning any of them, be answerable to those great interests, and that nothing be admitted which can any way, though obliquely or afar off, infringe or overthrow any of them. Whereof the Civil Law is so tender, that by bringing the Action, a mans right is rather improved than made worse: Nemo in persequendo deteriorem causam sed meliorem facit: Lib. 87. Dig. de reg. jur. To try a mans right is rather an advantage than any preju­dice.

When therefore any of these rights be in question, if the Law of a State be so short and defective, as that a mischief may be done, and yet no remedy be found, or not a sufficient one; or if a prejudicial act may pass against me, that may endanger my whole right in the end, and I not present thereat, nor called un­to it; or if I have not liberty to examine my adversary upon his oath, to something which will cleare the whole matter, and whereof I have no other testimony but his own conscience; or if I may not be admitted to make out the matter as well by violent and strong presumptions, as by clear and manifest proofs; or if the testimony of one onely witnesse be sufficient in any mat­ter whatsoever to cast and condemn me; or if where I cannot have my witness to the Bar through sickness, or absence be­yond the Seas, there be not some expedient allowed to have his testimony upon his oath sent to the Court where my trial is to [Page 15]be; or if such just exceptions as may take away, or at least ex­tenuate the credit of the evidence brought against me, will not be allowed; or if the Justice of a nation be too quick and over hasty in concluding upon the rights of men, before they can well prepare to defend them; or on the contrary, be too slow and te­dious, as not limit a time, when suits shall determine of them­selves, if they be not judged before; or if one sentence shall be so final, that I may not appeale, nor bring my right to a triall any more: I say, where these proceedings, or such like be al­lowed and and practised, whatsoever is most precious and of highest value amongst men, be it Life, Property, Good name, Liberty, right of Contracts, or whatsoever else is flying to the sanctuary of the Law, it is subject to be destroyed and taken away. For whether the rights of a people be prejudiced by an irregular way of bringing them to trial and iudgement, or by the iniquitie of those Lawes that shall judge them in the end, the mischief is all one. A State therefore that will sufficiently pro­vide, for defence of their peoples rights, must not onely take care that the Lawes that must definitively over-rule and deter­mine them, be equal, just, and rational, but the formes of trial must be the same also, that the same security and just dea­ling, which is the end of both, may be obtained.

And herein the Roman Civil Law has been more exact and careful than some other Lawes of the world have been, for there is nothing, of what nature soever it be, but the Civil Law has or­dained a means to bring it to a discussion and trial, either by giving a special Action in the caseTot. Tit. Inst. de action., or a general oneDig: de prae­script. verb. & in fact. action., relie­ving by ordinary remedies; or if those fail, by such as are ex­traordinaryTot. tit. Dig. & lo. de in in­tegr. res. titu., helping men jure actionis, or officio judicis, that is, by way of complaining in their owne name, or borrowing the name of the MagistrateGl. in s. actio, Inst de Action. verb. quam jur. to make their complaints more ef­fectual, so that one way or other a remedy may be had, what­soever the evil be; nor does it suffer any just complaint to go away unremedied. And although it gives the highest authori­ty to Orders and Decrees of Court, yet it is so tender of, and has such a heedful respect towards the Rights and Interests of men, that whether a man be concerned alone in a cause, or whether others be concerned with him, it allowes of no Act, [Page 16]Order, Decree, or Judgement, but against those onely, that were first call'd to see it done. And therefore every judiciall act done without warning given, is accounted surreptitious, and declared void and nullMarant spec. part 4. Distinct. num. 10.. The effect of which nullity is, that as to him that was absent and not heard, the Cause is to begin a­gaine; Judicatum tantum inter praesentes tenet, sayesLib. 47. dig. de re Judic. Paulus; Those that are in Court onely, are bound by that which is de­creed.

Neither shall a man lose his right for want of witnesses to prove it, for if the matter was transacted between him and his adversary onely, so that his adversary being brought upon his Oath, must need confesse the whole matter; the Law will en­joyn a man to answer, though against himself, and to his own prejudice, rather then that the truth shall suffer, and wrong shall prevaile. I may take the same advantage also, if my wit­nesses live after off, or that I would avoid the trouble and charge of examining them, or that my adversary will confesse more to my benefit, then my witnesses will be able to prove. And he that is cast by his own confession, is more powerfully condemned, then he can be by any kind of evidence whatsoe­ver;Confessio est probit [...]o proba­ta; Neque ulla est probatio illa major. l. 1. Dig. De confess. Vulteii Jurisp. Roman. lit. 2. cap. 2. for that cannot be subject either to mistake or falshood, as other testimony may be.

But witnesses are then of use, if he denies what I charge upon him. Who if they be farre distant, or through Scknesse, Im­prisonment, or other occasions be not able to come, the Law hath a ready way to relieve me, for I may have a commission to examine them where they live. It were too great an oppression that I must lose my right, because my witnesses cannot be brought to the Barre. Insomuch as if they be travailed into forreign parts, I shall have Letters of Request granted me to the Magistrates of the place where they remain, praying them to examine them upon the matter in issue, and to transmit their testimony; else regularly by the Civil Law, they are to be ex­amined in open Court, that it may be seen whether their coun­tenance does not contradict what their tongues declareLib. 3. Sect. 3. dig. de Test. & Gothofred ibid..

Neither does the Civil Law require direct and positive proofs onely, but it will admit of strong and forcible presumptions al­so, that by arguments of conjecture drawn from one thing to [Page 17]another, brings forth the certainty of the thing in issue. Par est probationi praesumptio, quod quidem ad effectum attinet, quia pro probatione habetur, sayesParat. Dig. de prob. & prae­sumpt. num. 14. Wesenbeck; Presumptions are equi­valent to proofes, and there is the same effect in both. And if a presumptive proof were not as effectual to carry the right, as any other kinde of evidence; in vaine did Menochius bestow his paines, when he made that very long and most elaborate Treatise of that subject onely.

But yet no proof, whether it be presumptive onely, or whe­ther it be direct and evident to the thing it selfe, is sufficient, ex­cept it be made out by the testimony of two witnesses: for by that Law, Testimonium unius est testimonium nullius; One wit­nesse and no witnesse at all is all alike. And so Constantine the Emperour hath very emphatically declared in these words: Ma­nifestè sancimus, ut unius omnino testis responsio non audiatur, eti­amsi praeclarae curiae honore praefulgeat L. 9. Colde Test.: We expresly require, that the testimony of one witnesse be not taken, although he hath the stamp of highest dignity upon him, for it were hard and dangerous, that a mans whole right and interest of what value soever it be, should depend upon the testimony of a single person onely, who, if he be honest and sincere, yet through want of good observation, or by a failing memory, may report the matter of fact otherwise then indeed it was. Yet in matters of small prejudice and value; the Civil Law does allow of the testimony of one witnesse, if the Plaintiffe himself can swear, the thing in demand is true; for in that case, his a­verring upon Oath as much as his witnesse hath sworne, doth supply the testimony of another winesseMincing. cent, 1. observ. 68..

Howbeit the Civil Law hath a further care yet, for before it will suffer any mans right to be judg'd away from him, it will see not onely a competent number of witnesses, but they must swear of their knowledge too:L. Ne (que) Nata­les Co. de Prob. and it does cast a very con­siderate eye upon their reputation and quality also. It gives way therefore to the proving of any remarkable exceptions that can be brought against them. Testium fides, sayes Calli­stratus, diligenter examinanda est: Ide [...]que in persona corum ex­ploranda erunt inprimis conditio cujusque; utrum quis decurio, an plebeius sit; & an honestae & inculpatae vitae, aen vero notatus quis [Page 18]& reprehensibilis; an locuples vel egens sit, ut lucri causa quid facilè admittat; vel an inimicus ei sit, adversus quem testimoni­um fert, vel amicus ei sit pro quo testimonium dat. Nam si careat suspicione testimonium, vel propter personam à qua fertur, quòd honesta sit, vel propter causam, quòd neque lucri, neque gratiae, neque inimicitiae causa sit, admittendus est. Lib 3. Dig. de Test. The sincerity of witnesses is strictly to be enquired after. Therefore as to their persons, the condition of every witnesse must be examined, whe­he be a Magistrate, or a common person, whether he be of good and unblameable life, or whether he lye open to just reproof, or hath been any way aspersed; whether he be able or necessitous, so that he may be tempted to transgresse for filthy lucres sake; whether he be an enemy to him against whom he comes to te­stifie, or whether he be gracious with him whose witnesse he is to be, for if his testimony be void of all suspition, either in re­gard of his person, as that he is honest, or in regard of the cause, as that there is neither gain, nor affection, nor enmity to cor­rupt him, he is to be allowed.

Moreover, it leaves a Latitude to every Court of Judicature, to give such a time both to Plaintiffe and Defendant to prove, as the distance of place from whence the proof is to be brought, does necessarily require. Neither does it exact, that Plaintiffe and Defendant should prove within one and the same time, but the Defendant begins to prove his Defence, after the Plaintiffs proof is endedSpeculat. de Test. sect. qua­liter, num. 20.. When both have done, the Judge is to con­clude the cause, by which all further proof is excluded, so that the next step is to judge and pronounce finally upon the whole matter. And although the Roman Empire was the largest and most extended that ever was, and the multitude of causes must be supposed to be great too, yet no Civill cause whatsoever, was to last and continue longer then by the space of tree years, nor any criminall matter could be prosecuted against any person, af­ter two years time ended; so that all the proceedings that should follow, and be made after such time ended, was absolutely null and voidLib. 13. Co. de Judic..

Lastly, so carefull it is to preserve and uphold the rights of men, that it does not make any single judgement to be abso­lutely conclusive and finall, if he that is cast, be desirous to [Page 19]bring his cause to be tryed again by another Tribunall. So much more fitting is it, that the sentence of any Judge should be impeached and overthrown, then that truth should suffer, or any mans right should be injuriously taken away. Within ten dayes therefore after sentence given, he that is condemned may by appealing to the next superiour Judge, complain thereof; and upon sufficient error assigned, or upon some further proof made then was before, he may procure the first sentence to be quite re­versed, or at least reformed: for the end of an Appeale is, Ʋt aut iniquitatem, aut imperitiam judicis corrigat Lib. 1. dig. de appellat.; To rectifie either injustice or errour.

These few instances (for they are intended for no more, and thereby to take a conjecture of the rest also) may suffice to shew, that as the safety of the peoples rights, is the generall end and intention of the Civill Law, so it does dispose and qualifie all its constitutions, and particularly the formes of triall and judiciall proceedings to the self-same end and purpose, and it does constantly hold and prosecute the same course in other matters. For if the Civil Law be rightly understood, it will ap­peare, that they grosly erre, who thinke, that though by the Civil Law, property is sufficiently enough maintained against common men, yet that the Prince or Soveraign has a looser power given him thereby, then other Lawes will allow, to command or dispose thereof at pleasure, because it is a rule in that Law, that Quod Principi placuit legis habet rigorem Lib. 1. dig. de Constit. Princi. sect. 6. Inst. de Jur. Nat. Gent. & Civil.; What pleases the Prince, has the force of a Law: and Princeps legibus solutus est Lib. 31. Dig. de Legib. Novel. 105 c. 2.; A Prince is not tyed to Lawes. Which being literally understood, and not taken in that faire and mo­derate sense, which by the course of the whole Law, and by the current of Interpreters it is expounded in, does import, as if Property, Life, Liberty, and all, were subject, and did hold of the Princes will.

But that this cannot be the meaning, is most evident, for that his meer Lust or appetite, or every inordinate command that goes forth from him should be a Law, is not so believed, that the Civil Law ever intended. But when the Roman State was now changed from being a popular State, and was become an absolute Empire, and that the people had conferred their whole [Page 20]power, that was in themselves before, upon Augustus Caesar (in whose time it was that the Royal Law was made) and his successors, it was meant by those words, that the Legislative po­wer should wholly rest in him, without the concurrence of any other, and that thenceforward the Laws should come from him, and be as obsequiously obeyed, as if they came from the whole people; but yet so, that they should not be repugnant to the Lawes of Nature, the common dictates of Reason, or mischievous to the publick welfare.

And therefore sayes Harprechtus, Verbum placendi, aut Pla­citi, non voluptatis, non libidinis, non etiam absolu [...]ae est voluntatis; sed justitiae, rationis, & consilii. D. sect. 6. Inst. [...]od. The word Pleases or Pleasure, does not denote Ryot, Lust, or absolute Will; but Justice, Reason, and good consideration: so that though the pleasure of a Soveraign, whilst he publishes any thing for a Law, is bind­ing and to be obeyed, because a Law can come from none but him, where the nature of the government is such: Yet it must be equall, just, honest, and profitableHa [...]pre [...]ht. Inst. de rer. div. in p [...]inc. nu. 130.. And what does a So­veraign more in this, then all other sorts of Governors whatso­ever, be they more then one, as in an optimacy; or be the go­vernment in the whole people? or what more power is given in this by the Civil Law, to an absolute Soveraign, which is not by other Laws given to the supreme & highest rules of any Nation?

Again, all Laws in the world do allow those, that have the Su­preme Power in them, to take away Liberty by Imprisonment, where there is any publick danger by Freedom, or where it may be a just punishment for contempt and disobedience, and to take away life too for capitall offences committed: and where pub­lick defence calls for it, to command their very Subjects persons and estates to such a proportion, as the present necessities re­quire; for without this power no community can long endure, nor any peace be preserved. And more then this, nor in any other cases does the Civil Law grant a soveraigne licence to touch either property, life, or libertyHarpretcht. loc. titat. nu. 95..

And where the Civil Law hath declared, that a Prince is ex­empt from Lawes, the meaning is not, that he may violate and trample upon them as himself listeth, as oft as they stand in his way, for that is contradicted expresly by divers Texts of [Page 21]the Civil Law;L. 4 co. de legib. l. 23. de Dig legat. 3. but that he is not punishable, when he breaks them, because he has no humane Superiour to judge or question him, or to exact obedience from him; that in some cases he may give license to his subjects not to observe some certain of them, by way of dispensation; that he may grant pardons to some that have transgressed them, where the nature of the fact will bear it; and that he may also quite abolish them when they are growne useless or hurtful.Harprecht. loc. citat. nu. 120. And under what Law or Go­vernment is it, where all these things are not cleare without any dispute, and held lawful, and continually done?

And generally in all instances of the Civil Law, as well as in those whereof mention is made before, it may be observed, that the imperial Law does not onely ratifie and confirm the gene­ral Lawes of Nature and of Nations, but takes care also to re­duce all its constitutions that might be any way instrumental to the distribution of justice in particular cases, how remote soe­ver they be from the prime and chief principles, to a perfect con­formity with them; and so ought the Law of every State to do; for that is the true way to make it rational throughout, & to keep it from being contradictory to it selfe. And that particular Law that makes the least deflections from nature and the common reason of man, and whose Acts and Edicts carry most of that evidence and demonstration along with them (as doubtless some Lawes carry more, and others lesse, as the wisdome of those that made them was greater or lesser) that Law, I say, must needs be the most rational, and thereby the best and perfectest Law of all other.

CHAP. II.

That what Reason teacheth should be made the subject of a Law, is no superfluous, but a profitable thing.

IT is not any hard matter to give the reason, why the princi­ples of Right and Justice, and the duties of a civil life, that are already ingraven by nature in the heart of man, should not­withstanding be further declared and made known by a Law. For,

First, though some principles of reason be in themselves so apparent, that they need no illustration, yet there be others more secret, and more remote from the understanding, than that they can be discerned by every mans present conceit, without some deeper discourse and judgement. In which discourse, be­cause there is difficulty and possibility many wayes to erre, un­lesse such things were set down by Lawes, many would be igno­rant of their duties, which now are not; and many that know what they should do, would nevertheless dissemble it, and to excuse themselves pretend ignorance and simplicity, which now they cannot.Tametsi nulla perturbatione Judices ab aequitate dimoverentur, nihil ominus tamen legibus opus est, quibus vel uti lucerna quedam, vel imperiti in? denfissimis humanarum actionum tenebris dirigantur, vel scelerati metu paenarum terre­entur. Bodin. de rep. l. 6. c 6.

That a Ship and Goods cast away at Sea by tempest, if they be driven to Land, shall accrue to the publique Exchecquer, and the distressed owners shall not by any claim recover them; some will not believe it to be barbarous and most unnatural; for it is practised by some nations,Sic vivitur, ut qui portus babent, cam c [...]u­delitatem tum; in cives, tum in peregrinos exe­quantur. Jus quaeris? Errori­us facit. Bodin. de rep. l. 1. c 10. and defended by divers learned men. And yet a very Heathen by instinct of nature, could cry out, Absit O Jupiter, ut lucrum captemus tale ex ho­minum infortunio; Jove forbid that we should draw such lucre from mans distresses: And therefore Constantine the Emperour did by a Law establish this dictate of Nature and Reason, and restored them to the owners, and charged his Exchecquer-men [Page 23]not to meddle with them. Quod enim, saith he,Lib. 1. co de Naufrag. jus habet fi­seus in aliena calamitate, ut de re tam luctuosa compendium se­ctetur? What right can anothers calamity bestow upon the publick treasury, that it should reap benefit from a sad disaster?

Secondly, Falshood doth so seek to cloath it self with the simi­litude and appearance of truth, that none of the ordinary sort of men, and not all of the best rank neither, can discover or distinguish true and solid reason from that which is false and counterfeit. When therefore our own natural instinct & inbred knowledge beares witnesse to any thing, & we have the warrant and allowance of the Law for it besides, no false colours or sem­blances of reason can deceive us: for what the wisdome and experience of a Nation has agreed and declared to be just and convenient, and our hearts do own and allow to be so, that un­questionably carries it in the greatest evidence and certainty of true and pure reason, that mortal men can attain to in things of humane and civil intercourse.

Thirdly, the Lawes of Reason, which, Man retaining his ori­ginal integrity, had been sufficient to direct each particular person in all his affaires and duties, are not of themselves suffici­ent, but do require the accesse of other Lawe, now that Man and his off-spring are grown thus corrupt and sinful. And be­cause the greatest part of men are such as prefer their own pri­vate good before all things, even that good which is sensual, be­fore whatsoever is most Divine: and for that the labour or do­ing good, together with the pleasure arising from the contrary, doth make men for the most part slower to the one, and pro­ner to the other; therefore unto Lawes it hath seemed alwayes needful to adde rewards, which more allure unto good then any hardnesse deterreth from it; and punishments which may more deter from evil, than any sweetnesse thereto allureth, wherein as the generality and substance is natural, Vertue rewardable, and Vice punishable; so the particular determination of the reward or punishment, and all other circumstances is the pro­per act of the Laws.

Fourthly, when men are rebuked for acting contrary to the Law of Nature, and the Light of Reason, what one amongst them commonly doth not stomack at such contradiction, storm [Page 24]at reproof, and hate such as would reform them. Notwithstan­ding even they which brook it worst, that men should tell them of their duties, when they are told the same by a Law, think very well and reasonably of it. because they presume that the Law doth speak with all indifferency; that the Law hath no side-respect to their persons; that the Law is as it were an Oracle pro­ceeded from wisdome and understanding.

Thus we see, that what Reason it self prescribeth, may in sun­dry considerations be expedient to be ratified by a humane Law, and indeed that a humane Law ought in substance to hold forth nothing which Reason allowes not of.

CHAP. III.

What is here meant and intended by Reason?

BUt lest there should be any mistake touching the necessary quality of Reason, which we so stictly require in a Law, it is but needful that we should explain what we intend by Reason. For certainly there is not a more deceitful thing than Reason; it being made use of frequently by false shews and colours to beautifie the foulest and most deformed things, and is grown to be the common gloss that every evil does varnish and deck it self withall: also it is such a faculty, that those that are parta­kers of it in the meanest measure, do infinitely extoll and ad­mire what they apprehend to be reasonable, though to a right judgement it be nothing so; and what they have not under­standing enough to conceive through their own natural weak­ness, they do as much disdain and condemn, how judicious and solid soever it be. Although therefore the plainer a Law is, and the more obvious to the understanding of those that are to be guided by it, the better and the more commendable that Law must needs be; yet we would not have it thought, that we allow no Law to be good, but what every man that is bound by it, does immediately understand and approve of. For,

We cannot admit that the capacities of common men are sufficient to judge of Lawes, which may be rational enough, though the reason of them be not seen to them: yet the main principles of reason are in themselves apparent, and discernable by every eye, and it is not easie to finde men ignorant of them; and therefore a Law that is contrary to those common princi­ples, is to be abhorred. But besides those that are universally received and agreed on, there are other principles which are not in themselves so evident, but are deductions and inferences from the first; and which learned and very understanding men onely are capable by much discourse and reasoning to appre­hend. And here besides good natural faculties, and ripenesse of years, there must be added the right helps of true Art and Learning; since Education and Instruction are the means, the one by use, the other by precept, to make our natural faculty of Reason both the better and the sooner able to judge rightly between Truth and Errour, Good and Evil. Nay, it it not all kind of Learning neither, which will give a man a fitness to discern, whether the Law of a Nation be conformable to right Reason or not; but it must be either all Learning and Know­ledge joyned together, or that proper legal knowledge, which is Ars aequi & boni, justi atque injusti Scientia, the art of Equity & a good Conscience, the knowledge of Right & Wrong. Further, the Judgement is not yet come to a full degree of perfectness, nor competent enough, except it be fortified with a practical Knowledge too, and with a Wisdome arising from Experience and Observation; for he that will undertake to judge whether a Law be agreeable to natural Equity and good Reason, he must not take his estimate from the matter of the Law one­ly, but he must consider divers other circumstances be­sides. For,

First. He must see into the Nature, Manners, and Inclinations of the People: for the end of all Law being but to preserve the Publick Peace, and to keep the people in good orderSalus populi suprema lex est., that Law must needs be best and most rational, which does soonest produce that end. And therefore considering that men, even by the very climate they live under, are made to differ so mainly in every thing, Body, Soul, Religion, and Manners, from the [Page 26]strange variety of Lawes which we see and read of throughout the world, we cannot presently conclude any of them to be un­reasonable.

A LawAristot. Poli­tic. there is mentioned amongst the Graecians, whereof Pittacus is reported to have been the Author; by which it was agreed, that he which being overcome with drink, did then strike any man, should suffer punishment double as much as if he had done the same being sober. No man could ever have thought this reasonable,Ebrius si de­lictum commise. rit, clement ùs est puniendus. Menoc. cas 326 l. 2. de Arbitr. Judic. nu. 1. that had intended thereby onely to punish the injury committed, according to the gravity of the fact; for who knoweth not that harm advisedly done, is natu­rally less pardonable, and therefore worthy of sharper punish­ment? But forasmuch as none did so usually offend this way as men in that case, which they wittingly fell into, even because they would be so much the more freely outragious; it was for their publick good where such disorder was grown, to frame a positive Law or Remedy thereof accordingly. And there­fore in that place that was a most rational and a just Laws.

A justification whereof we may finde in the Roman Law it self; Nonnunquam evenit, sayes Saturninus, L. 16. dig. de p [...]en. parag. 10. ut aliquorum ma­lificiorum supplicia exacerbentur, quoties nimium multis personis grassantibus exemplo opus sit; It sometimes comes to pass, that some certain offences are the more sharply chastised, when of­fenders therein grow so numerous, as that it is necessary to make them exemplary; for which severity the Law-givers are no way censurable, but the wicked inclinations of men are to be taxed, which have enforced it from them. Our Saviour him­self did excuse Moses, for suffering the Jewes to put away their wives for lesser causes than for Adultery, because of the hard­ness of their hearts, though from the beginning it was not so Matth. 19., that is, though it was not agreeable to nature, nor to the pra­ctise that had alwayes been. It being the lesser evil to dismiss them fairly, than to prosecute them with continual hatred, out of which greater evils might ensue, to which he knew the Jewes (such was the malignity of their nature) might soon be tem­pted. Likewise it is not void of reason neither, that the same fault should be punished with greater severity in one State, where the opportunities of committing it are greater, the incli­nations [Page 27]of the people more prone to offend therein, and the prejudice thence arising is more considerable than in another where it is not so, Evenit, sayes the same Saturninus, D. l. 16. par. 9. ut ea­dem scelera in quibusdam provinciis gravius plectantur, ut in Africa messium incensores; in Mysia vitium; ubi metalla sunt, adulteratores monetae: It happens that the same foul actions are more heavily punished in certain Provinces, as those that set fire on Corn in Africa, on Vines in Mysia; and corrupters of currant Money, where it is of Mettal. Neither is it any inju­stice or cruelty thus to vary: Non statim debet videri tyrannis, siquid gravius aut remissius publicae necessitatis causa in Legibus statuitur; nam sine tali injuria respublicae non possunt regi, sayes Conradus Lagus; Method. jur. civ. part. 1. c. 4. nu. 7. It ought not to be looked upon as tyranny, if at any time the hand of the Law be sometimes heavier, and sometimes lighter, as publick necessities shall command; for without such inequality of measure, Common wealths cannot be governed. And yet all this while here is no repugnancy to Nature neither; for the general principle of nature and of Nations, which is to punish offences that are past, and to sup­press them for the future, is still observed; onely it being ac­commodated to several nations which are various and differing, it cannot possibly be executed by the same coertion or penal­ties, nor in one and the same manner.

Secondly, the form and kind of Goverment must be respected also; for some Laws may be judged very good and fitting for a Monarchy, which cannot be so accounted of in a Government by a few, or by the whole people, or in such a one as is mixed, and made up out of them all.

Thirdly, when a Justice of the Law is doubted, it must be exa­mined, what urgency of affairs there was at that time when the Law was made, and whether some necessity and great reason of State did not enforce it. For those that guide the stern do see those lets and difficulties in preserving the whole, which others cannot discern; and therefore it is no marvel if such Lawes be enacted sometimes, for which no reason can be rendred. Non omnium quae à majoribus constituta sunt, ratio reddi potest; L. 20. dig. de legib. A reason cannot be given for every thing that our Ancestors have established for a Laws.

Fourthly, A Law that may be mischievous to divers particu­lar persons, though otherwise very innocent, must not there­fore be presently condemned as unreasonable, so that it be con­venient and profitable for the publick welfare. Jura non in sin­gulas personas, sed generaliter constituuntur, L. 8. Dig de legib. Lawes are or­dained for the generalities sake, & not to provide for each indi­vidual person, whose particular interest must suffer, rather than the whole society be brought into jeopardy.Livius l. 4. de. bello Macedon. & l. 11. dig de just. & jur. A particular mis­chief is better than a general inconvenience. Nulla lex satis commoda est omnibus; id tantùm quaeritur, an pluribus, & in sum­ma an prosic; No Law is every way beneficial unto all; that onely is enquired into, whether it be generally profitable, and to the most.

Fifthly, A Nationall Law that is generally and in most of its dictates and principles very just and equitable, and universally so acknowledg'd by the wisest and most judicious men and Na­tions, is not to be censured for some few particular constituti­ons, which may seem hard and rigorous, or whereof the Justice, Equity, or Reason, is not so evident; for this enterprise of ma­king Lawes is the weightiest thing which any man can take upon him. And where a multitude of Laws comes to be made by men (the best of whom are subject unto errors) and for cases of infi­nite number & wonderful variety, some few deviations, if any be, may be excused. It may well suffice that the Body is fair, and the Specks but few.

Sixthly, we can by no meanes allow of their way of judging, who are ready to measure the goodnesse of Lawes by the cor­rupt and evill practises of those that are instrumental to admini­ster them. Neither are Lawes to be judged such as their execu­tion is. Can a fountaine be judged the worse, because it is so unhappy as to run through a foule and slimy channell? or a chast Matron traduced, because violence has polluted her? so neither can the Law be justly charged with the exorbitancies of men, which it self condemns, and was purposely made to revenge and punish them; and would do so too, if violence, power, and fraud did not obstruct its course.

Seventhly, we can as little esteem those competent and fitting Judges of a Law, that are so forward to asperse and make it in­famous, [Page 29]because by ancient institution it was once ministerial, and attended upon a power and function which they ever dise­steemed, and have lately seen abolished.

Upon this ground and no other that can be imagined, have divers uttered their bitter and contumelious invectives against the Roman Civil Law, having been helpfull in the exercise of the Ecclesiastical jurisdiction of this Nation: which because they see eradicated and quite taken away, they judge the other quite uselesse, and therefore in their conceit ought not to be kept or continued here any longer.

In which argument were there any strength of Reason, it might be more strongly enforc'd against the Commmon Law it selfe; the intent and scope whereof, being to set up and main­tain an absolute successive Monarchy in this Nation, and to keep the people in a subjection under it; that Government be­ing now thrown down, it may be inferr'd, that the Law also which did found and support it, should never be made use of more, and that a Law of greater liberty and freedome should be set up in place of it: and so in conclusion, the reason of these disputants would allow us no Law at all.

But these must not be ignorant, that the Civil Law was ori­ginally made least of all for Ecclesiasticall matters, nor yet for so few cases, as in this Nation it was permitted to deal in: but it was first ordained, to guide the mightiest and vastest Empire that the world hath yet known; and under it the same grew and prospered, to the terror of its enemies, the joy and com­fort of its friends and confederates, and to the astonishment of the whole Earth. Indeed before the first foundations of this Law were laid, the Romans did not disdaine to fetch their Lawes from Athens, that City which was once the nurse of Reason, and flourisht in eloquence and brave atchievements more then all Greece, whence the learned Fathers of the Church suckt literature; Basil his eloquence, Nazianzen his strength, and others their flowing Oratory; that Athens, which who had not seen, is by Lysippus accounted a very block. But since this beautifull fabrick of the Civil Law was reared up, and came to the perfection we now see it in, it did not onely order and compose all matters of publick Justice, and of private Right [Page 30]in that State, but is since, through the singular treasures of Wisdome and purest Reason laid up there, propagated also to other Nations, who constantly use it in their Courts, in conjun­ction with their own Lawes. And in conformity to other Na­tions did it come to passe, that the use of it was admitted, and brought into the Ecclesiasticall, and other Courts of this Nati­on, where naturall Equity and the best Reason came to be dispensed, in the doing of right and justice; and especially for commerce with Nations abroad, whereunto that knowledge is most requisite.

Therefore to say that the Civil Law is uselesse, because the Ecclesiasticall power is thrown out, is as much as if we said, we have no further need of naturall Equity, or right Reason, nor need to treat with forreign Nations any longer, nor now be so wise as we have been, and as other Nations are.

Lastly, though the wisest of a people have upon mature de­liberation agreed upon a Law, and the Legislative power of the Nation has enacted it, yet that does not presently conclude the same to be rationall: for since the people of other Nations are partakers of the same Nature, Reason, Learning, and Ex­perience with them, except it can appear rationall to others al­so that are taught and guided by the same principles, it is not to be deemed rationall.

And from this single ground onely was it, that the Roman Civil Law came to be so universally embraced by other Nations, and to passe so generally for a most rationall and just Law, be­cause more naturall and common principles of Reason, Justice and Equity were found therein, then in any other Law of Mans ordaining; and because we meet with that reason there, that is universall and common to all mankind.

And if there be any certainty of Reason in matters of hu­mane discourse, (as we must admit there is, else we shall put out one of the chiefest lights that God has given to the world) it is to be discovered no where sooner, then from that, which not onely one whole Nation has agrred upon and established for a Law amongst themselves, but which other Nations besides them, have allowed for true reason, and practised the same al­so within their severall territories for many hundreds of years [Page 31]together; for the most certain token of evident reason is, if the generall perswasion of all men doe so account it, and when the judgements of all men generally, or for the most part, run one and the same way. Non potest error contingere, ubi omnes idem opinantur; & quic quid in omnibus individuis unius speciei com­muniter inest, id causam communem habeat oportet, quae est eo­rum individuorum species & natura. No error is to be feared in such matters where all men are of the same opinion; and what is ingrafted in every individuall of the same species, must necessarily proceed from one common cause, which is nothing but their very nature. The generall and perpetuall voice of Men, is as the sentence of God himself; for that which all men have at all times learned, Nature her selfe must needs have taught; and God being the Author of Nature, her voice is but his instrument: By her from him we receive, whatsoever in such sort we learne.

When therefore we say, that the Law of a Nation ought to be conformable to Reason, we mean and intend such Reason, as other Nations and Men doe generally by the instinct of Na­ture, the meanes of good Literature, and their insight in Civil affaires, understand and agree to be reason in such matters. Non enim licet naturale universaleque hominum judicium falsum va­numque existimare: It is not fitting to question that which is generally allowed by all men. And that Law that approches and comes nearest to such common and universall reason, is the truest and perfectest Law of all other, and makes the people most happy and quiet that live under it.

Howbeit, since this is a blessing that every Nation does not enjoy, froward & perverse men must not take an occasion from hence, to despise and quarrel with their own Laws, upon pre­tence that they are irrationall. Cognitio de bono & malo non pertinet ad singulos: omne judicium in civitate est illius qui gla­dium belli & gladium justitiae gerit. Regulae boni & mali, justi & injusti, honesti & inhonesti, sunt leges civiles; ideoque quod Le­gislator praeceperit, id pro bono, quod vetuerit, id pro malo haben­dum est. To judge what is good, and what is evill in a common society, belongs not to any, that are under rule; but to him or them solely, in whom the Supreme Power resteth: The mea­sures [Page 32]of good and evill, just and unjust, honest and dishonest, are singly the Lawes of every State. Therefore what the Law­giver does prescribe, with subjects must passe for good; and what heforbids, they must look upon as evill, till he thinks fitting to order and declare otherwise: Insomuch as neither the Judges nor Magistrates themselves can dispute or Judge thereof. In temporal bus legibus, quanquam de his homines judicent, cùm [...]as instituunt; tamen cùm fuerint institutae & firmatae, non lice­bit judici de ipsi, judicare, sed secundum ipsas, sayes S. Augustine, as he is cited by the Canon LawCap. 3. Dist. 4.: In temporall Lawes, though they may be debated by any man whilest they are in making, yet when they are once agreed on, and fully passed, the Judge shall judge by them, but of them he ought not to judge.

In pressing then that a Law ought to be agreeable to right reason, the argument is directed to the Law-giver, not to the Subject; and the scope of it is to shew, rather what a Law ought to be, then to quarrell with any particular Law, because it is not so rationall as it should be, and as other Lawes are. But withall, it professedly aymes to discover the strange weak­nesse of those, that when other Nations hold fast the Roman Civil Law, as being the summe and substance of all humane reason, they are willing to forgo it quite, when they have had the conjunction and assistance thereof so long in this Nation, and may with so much ease and advantage keep it still. To whom I shall give no other caution, then what Ʋlpian, one of the grave sages of the Civil Law gives;L. 2. Dig. de constit princ. In rebus novis constitu­endis evidens esse utilitaes debet, ut recedatur ab eo jure quod diu aequum visum est: Amongst other alterations, saith he, that is, be it Government or what ever else, that comes to be altered in a state, yet it ought to be some apparent advantage that should induce a Nation to part with that Law that has by long use been found to be very equall.

CHAP. IV.

That Reason is not so strictly required in the Law that or­ders the affaires of State, as in that that settles the diffe­rences that arise between Man and Man.

IF then we would know, when reason ought to manifest it selfe in a Law, and when it is not so strictly required, but that some deviation may be permitted, we must observe a wide difference between the publick affaires of State, and those of the Subjects own in their private dealings and controversies with one another; for although all the affaires of a Nation both pub­lick and private, must be under the provision and rule of the Law, yet is it not necessary, that they should both be regulated in one and the same manner, nor by one and the same reason; for there is a Reason of State, as well as a Reason of Na­ture.

In the Laws for publick matters, because they respect the wel­fare and preservation of the whole society meerly, and so are not to be tyed to the same rules every where, a strict adherence to naturall Equity and common Reason is not required: Safety and convenience is Reason enough to justifie them; so they en­courage Vertue, punish Vice, maintain Trade and Industry, and uphold Religion. Yet it is the happiest, when there is the least aberration from common Equity and known Reason, even in those things wherein the whole Common wealth is princi­pally concerned.

But it is to be considered, that there are such multitudes of peo­ple, such difference of degrees, qualities and conditions, and such perversity of Will [...] Humours, and Affections in every Common­wealth, that no humane Wit is able by sweet equitable wayes, to reduce them to that perfect temperature and harmony, which is requisite for the conservation of civil unity. This may partly be judged by the government of a Family, be it great or little, which is many times turn'd upside down, and dissolved by [Page 34]the perverse humour of some one or two, not corrigible by any wholsome Counsel, or moderate Chastisement of the head of it. What marvell is it then, if in whole Kingdomes and Common-wealths, amongst so many thousands of different per­sons, and of different humours, there are many so exorbitant and turbulent, that no Wit nor power of Man can be able fairely to tame or temper them?

The Lawes therefore must be fitted to all such publick acci­dents, providing sharp remedies for Diseases that are acute and desperate: neither must they tender the private right or safety of a few, if their detriment or mischiefe may secure the whole. In these cases, Legum convenientiam & aptitudinem semper expetimus, non semper aequitatem: The extremities of a Nation must be provided for by fitting and convenient meanes, though the exactnesse of Right and Justice seems to be infring­ed: for herein the Common wealth is like unto a Ship in a storm at Sea, where the Master may cast over-board what private mans goods he will, to lighten the Ship, and to preserve the whole: So where an enemy with an Hostile intent is coming against a great City, the City may demolish or set on fire the Suburbs, rather then permit the enemy to harbour there, there­by to annoy and endanger the whole City. The like must the establishments of Law be, that are directed to a publick end, they must aime to procure the common welfare, without any respect to private right, or imaginary reason.

But in such Lawes as are purposely made to defend every mans privaee interest, and to pacifie contentions and quarrels arising thereupon, and where the publick is not concerned, it not onely may but ought to be otherwise. They must hold forth Nature, Equity, Reason and a sound judgement, so at to command every judicious mans assent and approbation; and even they that are cast may not complain, murmure, or dispute the same. And in the same manner has Wesenbeck in his Pa­ratitles upon the Digests, Tit. de Just. & Jur. nu. 14. differenced these two sorts of Laws: Jus privatum, saith he, quia in reddendo cuique quod suum est, versatur, eo ad normam aequalitatis & justitiae congruat oportet: sed jus publicum, non totum ad normam aequitatis vel aequali­tatis, ut jura privatorum, sed ad id quod reip. est opportunum, [Page 35]praecipue aptatur. The Law that is made for the use of each subject against another, because the office of it is, to give to e­very one his own, it must measure it out by the precise rule of equality and justice. But the Law that is made to order the ge­nerall welfare of the whole State, is not tyed to any such rule of equity, but is such as the advantages and exigencies of State require.

In all private affaires therefore that happen between party and party, wherein there is no mixture of State-interest at all, and which come to be determined by a Law, we require, that the rules by which such Controversies are appointed to be de­cided, have not in circumstances (for they may be arbitrary, and according to meer will) but in substance so sure a ground in Reason and common Equity for the most part, as either to be consonant to the dictates of Nature, or obvious to vulgar understandings, or at least discernable by the wisest and most judicious of men, acquainted with the principles of Law, and the rules of Right and Justice. Neither is it the bare reason of the wisest, if it be such as is floating in the brain onely, that will here suffice; but it must be committed to writing, and have such an authority to own it, as is authenticall and currant amongst the greatest and best disciplined Nations also, which kind of reason thus authorized, especially in any ample measure, is to be looked for and found onely in the Civill LawRatio natura­lis secundum ho­minum captum quandoque vari­at, & multi non tam ratione ill. quàm phantasia aguntur. Leges autem latae à sapientissim [...] viris, & judici [...] emnis seculi approbatae, certè cam rationem tenem. Alb. Gentil. de ju. bel. lib. 1. c. 1..

CHAP. V.

That the Customes of a Nation ought in like manner to a­gree with Reason.

ANd here I am not unmindfull, that besides written Lawes and constitutions, there are belonging to every Nation, Customes and usages unwritten, which have as great an over­ruling power upon the persons and rights of the people, after they have been generally allowed, and that their observation hath been constant and un-interrupted for a long time together: And therefore sayes Modestinus, L. 40. Dig. de Legib. Omne jus aut consensus fecit, aut necessitas constituit, aut firmavit consuetudo: All Law pro­ceeds either from consent, necessity, or custome. Neither is it rare but common, to find in every Nation such usages as doe intermixe themselves with the acts of Justice, and the rights of the people, and yet they have by long continuance so worn out their Originall, that no rationall account can be given of them, nor no ground in reason rendred by those that use them, and yet they will not stick to sacrifice their most pretious enjoy­ments to preserve them, nor will admit of a change of them, upon any pretence of greater advantages whatsoever.

The reason hereof lyes in the affection which the people are apt to bear towards that, of which themselves are the Au­thors, Customes being first brought in and consented to by them: but Lawes are imposed on them by their Princes, whe­ther they will or no Consuetudines, sayesRer. Judi [...]. l. 2. c. 1. Anaeus Robertus, subditis neque graves sunt neque odiosae, sed leges istae municipibus videri solent supra caetoras omnes acceptissimae, cùm toler abilius sit, consuerudinis vinculo, quàm legum necessitate astringi. Quàm dulce, quàm gratum est voluntariae subjicii necessitati, & illo ju­ris vinculo astringi, cujus cùm authores simus, puderet iniqui­tatem ant severitatem accusare? At regia edicta non ratio sed sola dominantis voluntas, justa sit an injusta, sancit & mode­ratur: Customes are neither burthensome nor unpleasing to the people, but above all other kindes of Law seem most accep­table, [Page 37]since it is more tolerable to be tied to Custome, than to an imposed Law. How sweet and pleasing is it to be subject to a necessity of ones own making, and to be bound by such a Law, which when we have made our selves, we cannot for shame complain, that it is either unjust or rigorous? But the Edicts of Princes flow not from reason, but from meer will, without re­spect either to right or wrong.

Besides, though the reason of some Customes be not now di­scerned, yet it cannot be supposed but when they were first ad­mitted by the people, they tended to their common good. For, Quoties de jure populi agitur apud populum, cui mutare, cui abrogare, cui ferre quas velit leges, accipere quas velit rogationes liceat, nunquam se ipse diminuet; They will never prejudice their owne rights by any Custome or Law which themselves establish, sayes Quintilian. Declam. 254. Howbeit it is no more essentiall to a Law then it is to Custome, to be reasona­ble when it is first ordained.L. 1. & 2. co. Quae fit longa­consuet. Rei non bonae consuetudo pes­sima est: Nemo consuetudinem rationi & veritati praeponat; quia consuetudinem ratio & veritas semper excludit, sayes Saint Augustine 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.Si d [...]xcrit ali­quis, fi [...] vid [...], sic audiv [...]; en decisiones; magis risum quam fidem nostram excitat. Maestert. Dissertat. de Artific. dispu [...] 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.L. 13. parag. 4. Dig ad S. C. Tr [...]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 aliàs aliud iisdem de rebus & sentiunt & judicant, the very same men do determine the same fact at divers times diversly, sayes Erodius Re [...] Judic. lib 1. Tit. 1. c. 18. &c. 26.. For indeed the Judgements [Page 39]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 quo (que) persuadet, & gratia, & an­teritas [Page 40]dicentis, & dignitas, & postremò aspectus etiam ipse sine voce, quo vel recordatio meritorum cujus (que), 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 qu (que) jus reddere dicitur, etiam cùm iniquè decernit, L. 11. dig. de just. & ju [...]. and Res judica­ta pro veritate accipitur; 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 truth;) yet there is nothing either of Equity or Reason to make them so authoritative and powerful, as that [Page 41]they should be drawn into example for the future, and be made patterns to determine other, though never so like cases, by; since the wayes and means of obtaining them may not be fair, and their integrity and soundnesse be questionable.

Fourthly, whereas similitude and likeness of cases is the onely reason to perswade the walking by the light of such Judgements as have been before pronounced upon facts that are supposed to have had the same circumstances; Quintilian Institut l. 5. c. 2. sayes very truly, Vix ulla est causa per omnia alteri similis, there is scarce any cause that suits or agrees with another in all circumstan­ces: and againLib. 7. iuprae­fat. he sayes, Tot seculis nulla reperia est causa, quae est totae alteri similis, In so many ages, and in such a multi­tude of cases that have occur'd, there has not been found one wholly like another; for indeed the dissimilitude and difformi­ty that is amongst our selves and the whole off-spring of man, not in outward form, visage, lineaments, or stature onely, but even in our natures, tempers, inclinations, and humours also, makes all the matters we deal in, and the actions that flow from us, disagreeing too. Also in the other productions of na­ture, and the accidents that are commonly ascribed to Chance and Fortune, there is such a strange and wonderful variety, that nothing is acted. produced, or happens like another, but that there is some circumstance or other that does diversifie it and make it differ.

When therfore cases are either wholly diverse & differing, though in never so small a circumstance, their determinations cannot be the sameRes per se ipsa valde perniciosa est. exemplis non legibus judicare, cum ex levissima personarum, vel locorum, vel temporum varie­tare judicia mu­tentur Bodin. de rep. l. 6. c. 6.; for diversity of Fact must needs beget a diversity of Law too; and a very small Circumstance will change and al­ter the state of any business, and require clean another Judge­ment than can be had from Cases that do not exactly parallel them in all things.

And this has made all Lawyers to agree, that, argumentum du­ctum a simili est multùm fragile & infirmum; nec procedit, quaudo datur dissimilitudo etiam parva [...]verard. Topi. loc à simili. nu 12.; An Argument drawn from a like case is very weak and impotent, and falls to the ground when the least dissimilitude is found.

Fifthly, since before former presidents can be made fitting rules to decide & judge other cases by, it is absolutely necessary [Page 42]that the cases should agree punctually in all such circumstances as were the prime efficient cause of such finall and definitive judgement; how shall this Concordance be made evident and certain? for it must either depend upon the memory and truth of a Reporter and the Judge together, or else upon the safe keeping of all that was alledged and proved in the case in some Rgistry or Office, and the exact search and perusal of all upon occasion; neither of which is authentical and sure enough, whereby to judge and condemne another man: for either the report may be very easily mistaken, or some leading circum­stance may slip out of the Judges remembrance, or some of the Records be lost or mislay'd, so that a part of the Case whereupon the Judgement passed, may be wanting, and not rightly known.

Upon these and suc [...] like considerations is it, that the Civil Law does so frequently express it self in disallowance of judging by president or example, and directs Judges to reflect onely up­on that which Truth and the Law will bear, and not upon any thing that has been done by others. Licet is qui provinciae prae­est, omnium Romae magistratuum vice & officio fungi debeat, non tamen spectandum est quid Romae factū est, quam quid fieri debeat, sayes Proculus L. 12. Dig. de off [...]. Praes [...]a.. Though the provincial and inferiour Magistrate does exercise the same power and office that the Magistrates do in Rome, yet he must not loook so much at what they doe in Rome, though the chief and head City, as what indeed and in right they ought to do.

Justinian also did by an express constitution made in his time, command all the Judges to pursue strictly Truth, Justice, and the Lawes; and not in judging to take their example from the most solemn sentences of the highest and most eminent Judges in the whole Empire; no nor to follow such resolutions as himself should make to emergent doubts propounded unto him, if he had otherwise decided them then they ought to be: Non enim saith he, si quid non bene dirimatur, hoc & in aliorum judicum vi­tium extendi oportet, cùm non exemplis sed legibus judicandum sit, L. 13. Co. de sent. & inter l. omn. jud. for if a case has been once determined amisse, this should not spread to the corrupting of other Judges, since we ought to Judge by the Lawes and not by example.

And therefore Gordian the Emperour makes it a strange and [Page 43]an unwonted thing in Rome, that Judgements had between o­ther parties, should either profit or prejudice those who were neither present then in Court, nor ever called. Res inter alios judicatae, saith he, neque emolumentum afforre his qui judicio non interfuerunt, neque praejudicium solent irrogare L. 2. Co. Qui­bus res judic. non noc.. Which holds not onely in civil matters, but as to prejudice reaches to cri­minall also: Juris manifestissimi, sayes Dioclesian and Maximi­nian Emperours,L. 3. Co. Eod. & in accusationibus, his qui congressi in judicio non sunt, officere non posse, siqu [...]d forte prejudicii videatur ob­latum. There is nothing more manifest in Law, then that in criminal prosecutions, a condemnation had can do no manner of hurt or hinderance to him that was not accused.

I therefore say, as to prejudice, because when Life or Honour is in Jeopardy by a criminous impeachment, the Law is so care­full to preserve the same, that the acquittall of one offender is an acquittall of the other also, the Law being more prone to ab­solve, then to condemne, and so Ʋlpian answered in the case of Adultery:L. 17. Parag. 6. dig. ad l. Jul. de Adulter. Expectabit mulier, saith he, sententiam de a­dultero latam; Si absolutus fuerit, mulier per eum vincet, noc ultra accusari potest: Let the Woman waite the doom of the Man, if he be quitted, she is thereby free and can never be ac­cused; but if he be cast, that does not cast her, but she shall de­fend her selfe notwithstanding. And the reason that is assigned is observeable. Quid enim si adulter inimicitiis oppressus est, vel falsis argumentis testibusque subornatis apud praesidem gravatus, qui aut noluit aut non potuit provocare? Mulier verò judicem religiosum sortita, pudicitiam suam defendet? Possibly he might be oppressed with Malice, or condemned by false Witnesses, or the Judge might be carryed away with smooth words, or meer outward shews: The Woman coming under a better and more upright Judge, may vindicate her chastity, and clear her in­nocence better. Neither will any likenesse of one case to ano­ther, involve an absent person in such accidents as have fallen upon other men; for, nec in simili negocio res inter alios actas ab­senti praejudicare, saepe constitutum est, sayes the LawL. 4. Co. Quib. res judit.: It has been frequently over-ruled, that though the cases are never so much the same, yet a third person that never was a party, shall sustaine no detriment by what hath been done between those [Page 44]that were. For besides divers Lawes that are set under other Titles, there is a whole Title to the same effectCo. Res inter alios Judicat. ali­is non nocere..

Neither does the Law look upon it as any incongruous or strange thing, that the same businesse should be judged diversly, for it does instance where it does frequently come to passe. Circae inofficiosi querelam, sayes Paulus, evenire plerumque assolet, ut in una atque eadem causa diversae sententiae proferantur L. 24. dig. de inoffic. Testam.. And the same sayes Papinian; Filius qui de inoffociosi actione adversus duos haeredes expertus, diversas sententias judicum tulit, & unum vicit, ab altero superatus est; In an action that is brought against the Will made by a Father to the disinheriting of his owne children, it is usuall to have contrary sentences pronounced, the Sonne to vanquish one Executor, and to be overthrown by another.

And therefore the practicants allow not any such plea in the Court, as to say, that the case hath been judg'd, except there be a concurrence of all these three things together, to wit, that the cause and processe be the same, the right of action the same, and the persons the same tooGail. obs. lib. 1. obs. 70. nu. 17.; so that though the causa agendi, the ground of suit were the same in all things, yet if the same persons never had any such suit depending, but that there is a new person in judgement which never appeared before, the proceeding must now be made wholly upon a new stock, with­out considering how and in what manner the right has been judg'd before between other persons. Neither is it materiall, whether the Judge that is to give the present judgement, be the same that judg'd the like case before, or whether they be diverse; for the Law is still the same in both. Menochius resolves the one case,Consil. 59. Diversae sententiae, saith he, à diversis judicibus, inter diversas personas, diversis temporibus, ex una cademque facti specie ferri possunt: Upon one and the same fact contrary sentences may be given by severall Judges, between other per­sons, at severall times; and againe,Consil. 180. [...]um. 51. Non aequissim [...] ju­dicù est facere quod ab aliis fuit factum, sed quod fieri ab illis [...] buit, sequi. It is not the part of a just Judge to judge as others have done, but as they and all ought to doe. As to the other, Christinaeus, notwithstanding the great paines he has taken, to gather together as many judgements and decisions of the great [Page 45]Councell of Machlyn in the Empire, as take up six volumes, yet he does not stick to sayVol. 1. Decis. 2., That Senatus non ligatur suis an­terioribus sententiis, quin valeat postea contrarium judicare. The Senate was not tyed to former judgements, but that they might judge the quite contrary afterwards; for he accounts it praise­worthy, to relinquish an errour, and to embrace a truth at any time: nor to be possible, but that the change of times should introduce change of opinions and judgements also, and shews that Afflictis in his time saw that judg'd one way, which Gram­maticus afterwards reports to have been judg'd the contraryAc propterea euria Par si [...] in sententiis sae­pius haee verb [...] subjecis; Neu judicata res ad consequentia trabatur. Bo­din. de rep. l. 6. c. 6.. Thus then, since we require that Reason and naturall Equity should be strong and vigorous both in Law and Custome, or at least no meanes repugnant to them, when they come to judge us; and that we see all manner of Reason to stand against judg­ing by Presidents or foregoing judgements, besides the univer­sall Law and practice of Nations; we conclude that the way of judging by Presidents, is as erroneous a guide to walk by, and as little satisfactory to the people, as a Law or Custome that is void of all Equity and Reason, and therefore by no meanes to be entertained or admitted.

And yet we must allow what Callistratus reports from the EmperourL. 38. dig. de Legib. Severus; That rerum perpetuò similiter judicata­rum autoritas vim legis obtinet: Cases constantly judg'd one way for a long tract of time together, doe set a rule to such as shall succeed: for as Cujacius likens it to Custome,L. 7 dig. de just & ju. Con­suetudo, saith he, non vaelet nisi ex tempore longo, usuque frequen­ti. It a rerum judicatarum argumentum non valet, nisi ex tem­pore longo sive diuturuo frequentique, judicioque simili: As cu­stome is of no force, except it endures a long time, and is fre­quently put in ure: So to argue from foregoing judgements, is no weighty argument, except they have been many, and con­stantly the same for a long time together. In like manner, it is most true, that Optima legum & consuetudinis interpres est res perpetuò similiter judicata, The judging of the same thing al­wayes in one and the same manner, is the best help to under­stand both Law and Custome by: But then it must be, saith Cu­jacius, Non quodlibet judicium, sed quod numero & tempore valet, as if he had said, It must not be once, twice, or thrice [Page 46]judg­ed so, but the judgements must be many, as well as alike; and it must hold on so for a long time together, before it can have the force or effect of a Law, and after it has so long pre­vailed, it may be esteemed not so much Law, as Reason; for certainly it could not have so long endured, if the reason of it had not been evident to those, whose judgements were so con­formable as never to disagree therein.

CHAP. VII.

That they are great advantages which a Nation has by ru­ling by such a Law as is rationall.

THe governing and judging by that Law which Reason teacheth us, cannot but be effectuall unto that Nations great good that observes the same; for we see the whole world and each part thereof so compacted, that as long as each thing performeth onely that worke which is naturall unto it, it there­by preserveth both other things, and also it selfe. Contrariwise, let any principall thing, as the Sun, the Moon, any one of the Heavens or Elements, but once cease, or faile, or swerve, and who doth not easily conceive, that the sequell thereof would be ruine both to it selfe, and whatsoever dependeth on it?

As therefore the obedience of other Creatures unto the Law of Nature is the stay of the whole World, so nothing is more effectuall to the upholding of any communion amongst men, then to command the peoples obedience to nothing more, then what Nature and Reason prompts them to, and to determine their Rights by Rules, which themselves cannot gainsay; for when the judgements of a people are satisfied in the Reason and Justice of that which is commanded, either by their own understandings, or as they are taught by more knowing men; they sit down in a quiet and contented submission, and looking upon their Governors with the greatest Reverence and Honor, they obey without complaining, and thereby the publick peace is also secured.

But when the Lawes of a Nation, that should be most clear and rationall, are wrapt up in a strange language, delivered in termes most intricate, and the matter thereof not intelligible by any degree of true Reason or Learning; the people are pre­sently possest with a jealousie, that their dearest rights and most pretious interests may miscarry under them, and their surest possessions snatcht from them, under pretence of a Law which they cannot discerne any Justice or Reason in; till at last they fall into open rage and distemper, thereby disturbing the pub­lick peace, and oft times shaking the very Government it selfe in their furyLegum ac M [...] gistratuum con temptum sequun tu [...] popul. sed [...]ti osae voces, & adversus priu­cipes ipsos conju­rationes ac defe­ctiones. Bodin. de rep. l. 3. c. 1.: for there is no bondage like to the slavery of the Judgement, and the captivity of the Will; neither is there any greater occasion or ground of fear, then when a man is con­strained to tread such steps, where his understanding cannot guide him. But especially for ones fortune or personall safety to be exposed to danger in such unknown and undiscernable wayes, it must needs draw on a greater distemper in the minde, because of the great consequence thereon depending. Moreover, when the dictates and proceedings of Law are rationall, we are much assisted by our Reason in a conformity and obedience to them, even when we doe not exactly know the Law it selfe, and we doe not so soon slip into danger or mischiefe under it, when we have an inward guide to direct us in the way we are to walk in: but when we are to walk in a path we know not in any kind, and to observe rules which we cannot understand, it is then that we wander out of one Labyrinth into another, till mischiese and the penalty of the Law surprizeth us una­wares.

Besides, Lawes that curry in them honest, rationall, and clear principles, are as so many lessons for the people to fashion their lives and actions by, whose nature and manners will be much tempered by the discipline of the Law they live under; for since it is the onely guard and security that they have for their lives and fortunes, they will be studious in it, inquisitive after it, and attentive to it; and so whilst they study and learne the Law, to keep themselves and their estates in safety, at the same time they also learn all the duties of a Morall life, and suck in the truest principles of practicall integrity, and civill conver­sation. [Page 48]And this amongst many others, hath been one very powerfull inducement to Christian Nations, to receive and che­rish the use of the Civil Law so much as they doe, because to humane Law or Learning does so well teach men to be just, ver­tuous, & innocent in all the actions of this life, as that Law doth. Iustitiam colimus, & boni & aequi notitiam profitemur; aequum de iniquo separantes, licitum ab illicito discernentes; bonosnon solū metu poenarū verùm etiā proemiorū quo (que) exhortatione efficere cupientes; veram, nisi fallor, philosophiam, non simulatam affectantes, sayes Ʋlpian b­ L. 1. dig. de Just & jur., in the name of all the Lawyers. We adore Justice, and the knowledge of Right and Equity is our profession; di­viding Equity from what is unequall; discerning lawfull things from unlawfull; aiming to make men vertuous, as well by re­warding them where they doe well, as punishing them when they doe ill; teaching such wisdome, if I mistake not, saith he, as is not for shew and ostentation. but is true, solid, and sub­stantiall: For Cujacius explaining the last words of that Law, makes it the proper office of a Lawyer, to teach men to bridle their Lusts and Appetites, to study the common good, to de­send their own, to keep their desires, hands and eyes from the goods of others; which are but the lessons of a true Philo­sopher.

Likewise the summe and substance of all that a man owes morally either to himselfe or others, is comprized in the three generall precepts of the Civil Law: Honestè vivere, alterum non laedere, suum cuique tribuere L 10 dig. de Just. & Jur. Parag. 1.; To live soberly not to hurt another, to give every one his own. The first duty concernes our own selves, and is the fruit of Modesty, forbidding us to doe any thing whereby we may seem lewd or vitious; nor to shew any kind of dissolutenesse either in our speech, habit or man­ners, and to refraine from any act, qu [...]d vel nos commaculet so­los, sayesD. l. 10. Cuja [...]ius, that is, which may stain our persons, though none be privy to it but our selves. The other two are the pro­per effects of Temperance and Justice, and owing to others, whom we are to live, converse and deal with; teaching us to ab­stain from theft, violence, rapine and injury; to render back to all men what we have of theirs, or doe owe them; reward to vertuous actions, and to evill punishment; and to make full sa­tisfaction [Page 49]for dammage or detriment done to others through our meanes. Again, though Laws very rarely continue, when the stare of Government comes to be quite changed; as it fell out in the Roman state at first, long before the time of the Civil Law: whereL. 2. Dig. de Orig. Jur. Pomponius writes, that Exactis Regibus, omues leges Regiae ex leverunt, iterumque caepit Popul [...] Romanus in­certo magis jure & consuetudine aliqua uti, quàm perlata lege, idque prope viginti annis p [...]ssus est: Kings being driven out of the Empire, their Lawes presently ceased, and the people of Rome did again begin to be governed, partly by arbitrary dis­cretion, and partly by custome, rather then by any written Law, and so continued for twenty years together: And so it comes to passe, that new Lawes are alwaies prepared to suit with a new Government. Yet upon no change whatsoever, are meer rati­onall Lawes repealed, or grow out of use.

The reason hereof is, because men can never lose their Na­ture, forgoe their Understanding, or quit their Reason. Nei­ther can a supposition be admitted, that such Laws as these can be unsuitable to any Government; for what kind of Government hath been hitherto devised by Man, or established in any Nati­on, with the which, naturall Equity, or the dictates of right Reason has not suited? Nay, it should be rather concluded, there may be a Tyranny, but there can be no government without them.

Hereupon it has been, that no change that ever happened in the Roman state, no nor the overthrow of the State it self, could take away the force or use of the Roman Civil Law, but that other Nations have assumed it into their territories, and have made it serviceable to their occasions and wayes of governing. how va­rious and differing soever those occasions and kindes of government have been.

Furthermore, though Lawes with all other worldly things besides, have their times to waxe old, and as it were decrepite in, according to that of Claudian.

Firmatur senium juris, priscamque resumunt
Caniciem leges, emendanturque vetustae,
Acceduntque novae.—

Yet those Lawes that are inspired by Nature, Reason, and pure Equity, can never in any time, in all places at once lose their esteem or use. These are the Lawes that carry a clause of perpetuity with them, they were first born with Man, and can never dye before him. It might well be reckoned amongst the wonders of the World, that the Civil Law made so many hundred years agone, and which has seen the spoil and over­throw of Rome it selfe, and many other States and Empires be­sides, should still flourish in the Europaean Nations, as if it were but new sprung up; but that surely the eminent wisdome and known reason that is in it, hath given that Law a life as lasting as the World it selfe.

It hath been observed of all Arts and Sciences, that there is a kind of circular progresse in them: they have their birth, their growth, their flourishing, their failing, their fading, and within a while after, their resurrection and reflourishing again. And Aristotle 1. Decaelo. 1. Meteor. himself, who held the Arts Eternall, as he did the World, yet tells us, there was alwaies a rising and a falling of them as of the Starres, so as sometimes they flourished in one place and age, and sometimes in another, as the Starres some­times shine in our Hemisphere, sometimes in the other. And so it may fare with that Noble and usefull Science of the Civil Law in like manner; it may be obscured and under a dark thick cloud for a while in one place or other, but it can never be irre­coverably lost every where, but it will still find some place to prosper in, till at last it be even courted to return thither from whence it was before expel'd.

Lastly, to shew the benefit of c [...]ear and rationall Justice yet further: As it is of highest advantage and benefit to a Nation, to purchase the acquaintance and correspondence of other Na­tions abroad, as well for traffique sake by exchanging their Com­modities together, as also to be confoederated by a league with them to be made the stronger, and likewise for doing all good reciprocall offices each to other; so nothing can more strongly invite forreigners frequently to resort unto, to trade, deal, and communicate with a Nation, then an assurance that in all their dealings, if difference happen to arise, they shall receive plain and clear justice, fetcht as it were from the very bowells of Hea­ven [Page 51]and Earth, and grounded upon the very same reason they bring into the Nation with them. But if in stead of this fair and civil entertainment, they shall be led into labyrinths of some­thing call'd Law, where they can discover no light of that rea­son whereof they partake as men, nor yet any of those princi­ples, which in the acts of Justice are currant amongst all other civill Nations: they will conclude, it is not safe nor honourable to converse any longer with such a Nation, but will forsake and abandon it as barbarous.

CHAP. VIII.

That Christian Nations having entertained the Civil Law into their Territories, have thereby acquired to them­selves the most rationall Law that hath been ordained, as by the constitutions thereof will appear.

THus have I laid down the most excellent fruits that a Nati­on reaps, by framing for it selfe such Lawes, as are agree­able to the old and ancient grounds of Reason in Nature, the Grandmother of all Law, justly so styled. Of the which, the Nations of Christendome for these many hundreds of years, have therefore very plentifully partaken, because they have admitted into their Schools and Academies the Study, and into their Tribunalls the use and practice of the Roman Civil Law: for although all publick businesse, and the generall affaires of State wherein the interest of the common welfare lyes, are car­ried on by Laws of each Countreys own making, fitted to time, place, persons, occasion, and accidents that doe happen, which the Civil Law cannot be made to serve nor suit withall; so va­rious each Nations exigencies and occasions are: Yet they bor­row their greatest, if not all their light and direction from the Civil Law, in setling the contentious businesseOmnia judicia aut distrahenda­rum controversi­arum, aut puni­endorum malesi­ciorum causa re­perta sunt. Cic. pro Caecin. of the Subject, and the matters that arise in difference betwixt party and party; [Page 52]their perfectest Municipall Lawes, having contributed so little to wards their determination, that in comparison of what they have made no provision at all in, that which they have seemed to provide for, is to be accounted nothing.

Most States employ their consideration most upon the publick welfare, and upon such interests as have an universall effect up­on the whole body, as easiest to be seen, and requiring but one and the same remedy for all. But in a numerous multitude, and where their transactions and dealings with one another are so various, and indeed by different circumstances become infinite; to suit each persons case and businesse with a proper and fitting rule to decide it, is a work so void of end or bottome, and past finishing, that no state will set upon the enterprize to begin it; especially when the Art and Science of the Civil Law has done it to their hands so excellently well, and with so much wisdome, pure reason, and true naturall equity al­ready.

The Romans (who through the largenesse of their Empire, and the long continuance of it, had dealings with the greatest part of the World then inhabited and found out, and so had beyond other Nations, the greatest opportunity to see the won­derfull variety of questions and controversies, that fall out be­tween Man and Man in their mutuall transactions, when such a numberlesse number of them came before their own Judicato­ries) they chiefly minded the regulation of such matters; the Lawes that are now extant, being almost wholly taken up in them, and handling the publick very sparingly; for of the fifty books of the Digests, nine and forty do almost wholly consist of these private controversiall things. They have taken up likewise all the Code, saving a little of the first book of it, & the three last Books of all. The Institutes are altogether spent herein, except­ing that one Title De publicis Judiciis, which is the last of all.

Hereof Cujacius and Duarenus render this reason: Ideo neg­lectum est jus publicum, say they, quod parum videretur ejus cognitie singulis esse necessaria, quòd de rebus privatis frequenti­ores essent lites, quodque rarò de jure publico interrogaretur: Therefore by the Roman Laws so little was declared concerning the publick, because the knowledge of such matters was so little [Page 53]necessary for private men, and for that most suits were brought for differences betwixt one subject and another, as also because little advice was asked upon that which concerned the generall welfare.

There is nothing therefore upon which a Controversie may be raised in our dealings with one another in this life, but to cast the right where it ought to go, there may be found out in the study of the Civil Law, that, which though it was a Law to the Romans only, yet has it the force of profound, pure, solid reason to all other men; so perfect, absolute, and so rational a Sy­steme is it of all humane affaires and dealings whatsoever. Nei­ther are we able to prize or esteeme the singular benefit that hath grown unto the world by the Roman Civil Law, being still extant, as the value thereof deserveth.

For the precepts of Nature, and the rules of Natural Reason, whereof it aboundeth, are either such as we of our selves could not easily have found out, and then the benefit is not small to have them readily set down to our hands; or if they be so clear and manifest, that no man indued with reason can easily be ig­norant of them, yet the Law as it were borrowing them from the school of Nature, to prove other things lesse manifest, and to induce a necessary consequence of something which were in it self more hard and dark, unlesse it should in such sort be clea­red, the very applying of them unto cases particular, is not without most singular use and profit many wayes for mens in­struction.

Besides, be they plain of themselves or obscure, the evidence of so renowned a Law added unto the natural assent of reason concerning the certainty of them, doth not a little authorize and confirm the same. Wherefore in as much as our actions are conversant about things beset with many circumstances, which cause men of sundry wits to be also of sundry judgments concer­ning that which ought to be done, beneficial it cannot but seem, that the rule of Civil Law has herein helped our infirmity, whereby we do so well understand what is right and just, and what otherwise.

Though the first principles of the Law of Nature are easie and discerned generally by all men, yet concerning the duty which [Page 54]Natures law doth require at the hands of men in a number of things particular, so far hath the natural understanding even of sundry whole Nations been darkned, that they have not discer­ned, no not grosse injustice and injury to be so. Whereby it ap­peareth how much we are bound to admire the profound wis­dome, and even honour the memory of the Roman Lawgivers, who have delivered such a Law to the world; a Law wherein so many things are laid open, cleare, and manifest as a light which otherwise might have been buried in darknesse, not without the hazard, or rather not with the hazard, but with the certain losse of the rights of many men and nations.

For albeit there is in the Civil Law, as there is and must be in all Lawes whatsoever, a very great intermixture of such things as are established by the voluntary determination, and proceed from the meere will and pleasure of those that have ordained them, who might limit Times, Places, Forms, Actions, Rewards, punishments; & difference Persons, & might order and dispose of all Circumstances in what way and manner they pleased, as the Nature, Manners, Government, and Occasions of the Roman people most required, without any respect to common and uni­versall Reason, and are therefore neither obligatory nor usefull to any other State or Nation, as they were to the Roman: yet there is in it a rational and natural part also, which belongs un­to men as men, or to men as they live in politick society, consi­sting of such common and natural notions, and so abstracted from such circumstances which should change and alter it, that it is alwayes permanent, alike known to all men, or at least to the wiser sort of men, obligatory, and useful every where. And never was there any Humane Law that abounded so much with this, as the Civil Law doth, it being to be found every where about the whole Law, though intermixed with that which is meerely positive, proper and usefull for that State and none else, or at least not fitting to be made a Rule for all people.

By Natural and Rational I understand that which our own natural understanding allowes as good, or disallowes as evil, though there were no Law to forbid the one, or to prescribe the other. And this was the same, which St. Paul Rom. 2.14. expresses to be [Page 55]the guide of the Gentiles, that is, of all men naturally. The Gentiles which have not the Law, doe by nature the things con­tained in the Law; which shews the work of the Law written in their hearts. Also that which is commonly received and practi­sed by all men: In re consensio omnium gentium lex naturae pu­tanda est; Cicer. Tusc. l. 1. what all Nations agree on is to be esteemed natural. Quod mundus probat, non audeo improbare, sayes Baldus, Consild. 4. Consil. 496. I dare not question that which is generally allowed of.

Likewise I account that natural and rational which is neces­sary and behoofefull for those that lead their lives in any well­ordered state of government, and without which we take away all possibility of a sociable life in the world.

Further, that justice may well be esteemed natural and ratio­nal, which is squared by and accommodated to the nature of the thing in question, as it is defined, and as it generally passes in the account of all, or at least the most knowing men.

Neither do I account that only to be natural & rational which was so when the first foundations of the world were laid, & man became in habitant thereof; for then all things were common, and men were not gathered into civil societies; neither was there any distinction of Nations, nor any Cōtracts, no waging War, nor leading Captive, nor servitudes, nor conjunction of Dwellings, nor any limits set to the property of each Man & Nation, as we see at this day. Therefore that must be looked upon as natural and rational, which suits with the present state of affairs, as they now stand in the world at this time: for though the Natural Law be alwaes the same, yet some parts of it are primely neces­sary, others by supposition and accident, and both are of the same necessity, that is, equally necessary in the several cases. Thus, to obey a King is as necessary and naturally reasonable as to obey a Father, though the first Governour of all; that is, supposing there be a King, as it is certain naturally a man can­not be, but a father must be supposed. If it be made necessary that I promise, it is also necessary that I perform it; for else I shall return to that inconvenience which I sought to avoid, when I made the promise: And though the instance be very far removed from the first necessities and accidents of our [Page 56]prime being and production; yet the reason still pursues us, and natural reason reaches out to the very last minutes, and or­ders the most remote particulars of our well being. Moreover, besides the natural and rational part before spo­ken of, which either simply concerneth men as men, or which belongeth unto them as they are men linked with others in some form of politick society; there is another sort thereof, which serves to order and direct all such several bodies politick, so far forth as one of them hath publick cōmerce with another: for although civil society doth more content the nature of man than any private kind of solitary living, because in society this good of mutual participation is so much larger than otherwise: yet we are not satisfied herewith, but we covet (if it might be) to have a kinde of society and fellowship with all mankind. And therefore Themistius speaking to Vaelens the Roman Emperour, he told him,Grot. Proleg. lib. de ju. bell. & pac. that Kings if they would act by the rule of true wisdome, they must, non unius sibi creditae gentis habere ra­tionðilde;, sed totius humani generis, & esse non [...] tantùm, aut [...], sed [...], not take care of their own peo­ple onely, but bear a tender regard towards all societies and companies of men whatsoever, and be lovers of men generally, not of the Macedonians or Romans onely. And surely God in his wise disposal of all things here below, would therefore not suffer any one part of the earth to be enriched with all his worldly benefits and blessings, but chose rather to sprinkle them up and down, making one nation to abound with one thing, another with another, but none to possess all things; that there­by the several societies of men standing in need of one another, might be driven to seek & preserve one anothers friendship and correspondence, if it were but to purchase these outward tem­poral things, and to gain those great advantages which are to be had onely in a combined multitude, and for which a single Na­tion is too weak and impotent. Nulla est tam valida civitas, sayes Grotius, In Prolegom. quae non aliquando aliarum extra se ope indigere possit, vel ad commercia, vel etiam ad arcendas multarum exter­narum gentium junctas in se vires; unde etiam à potentissimis populis & regibus foedera appeti videmus. There is no countrey so strongly fortified within it self, but that it may at one time or [Page 57]other be put to implore the aid of other Nations, either in the way of trade, to put off their own commodities in exchange for others, or else to secure themselves against a collected force that is about to invade them. Hence we often see, even mighty Princes and people so strongly sollicit to be in league with o­ther States.

This naturall inclination that is in the men of the World, to have the knowledge of, and acquaintance and friendship each with other, how farre distant soever they be, did appear so much in Socrates, that he professed himselfe a Citizen, not of this or that Common-wealth, but of the World. And an effect of that very naturall desire in us (a manifest token that we wish after a sort an universall fellowship with all men) shewes it selfe by the wonderfull delight men have, some to visit forreigne Coun­treyes, some to discover Nations not heard of in former ages; we all, to know the affaires and dealings of other people, yea to be in league of amity with them, and this not onely for traf­fique sake, or to the end that when many are Confoederated, each may make the other more strong; but for such cause also as moved the Queen of Sheba to visit Solomon; and in a word, because Nature doth presume, that how many men there are in the World, so many Gods as it were there are, or at leastwise such they should be towards Men. Further, this conversing with forreigne States gets us an opportunity to discerne their inclinations, know their strength and riches, or find their weaknesse, and sometimes to discover their secret machinations against our selves.

Thus whilst we travaile and send out into other Nations, in pursuit of our severall ends and interests, we fall at length to contract, exchange, transport, and so by degrees establish a fixed trade for return of commodities each to other. This draws on firme leagues of amity and friendship, capitulations to fight against our common enemies, and mutually to defend our selves. And this cannot be transacted without the help of Embassies, and the mediation of Ministers, by whom the mindes of both are made known, and our agreements sealed and confirmed. Sometimes injury is done by our neighbour Nations, or their sub­jects, either in staying our Ships, seizing our goods, restraining [Page 58]our persons, or protecting the publick and declared enemies of the Nation, which causeth us to demand redresse and reparati­on. Which if it be denyed or delayed us, if the offence comes from particular men, we right our selves upon some subjects onely by way of reprizall; if from the State it selfe, or the most considerable part thereof, then followes the denouncing of o­pen Warre, and all the concomitants thereof. Besides, when disturbances at home are outragious, and over-violent, we are sometimes driven to call in forrreign forces to appease them.

Moreover, if there be any Nation that grows so great in do­minion, strength, and riches, as to strike terrour and amaze­ment into all the neighbour Nations round about it, so as they may justly fear they shall become a prey to their luxuriant power and greatnesse, to proclaime open Warre against such a Nation, or to kindle the fire of dissension and civil discord with­in her own bowells, or to set other Nations upon her back to bring her lower, and to make her incapable of offending her weak neighbours, is by many deemed a politick,Principum ac­civitatum impe­ria stabiliora sunt, & ab inju­ria finitimorum tutiora, cùm soci etates ac foedera sic contrabuntur, ut aequabilis quaedam ex om­nibus potentia existat. Bodin. de rep. l. 5. c. 6. and by some a lawfull way of AnticipationSunt qui neu­ [...]rarum partium se esse verbo declarant, re tamen faces utrisque ad bellum instimmandum clam suppe­d [...]ant: ferendum illud quidem quodammodo, si sua saluti aliter consulere non possint. Bodin. de rep. lib. 5. cap. 6.. Which whether it be or no, it is not proper here to determine. But sure I am, to be regard lesse of such an over-spreading Neighbour, were a token of great impro­vidence and stupidity. And it were but needfull for the lesser States to confoederate and combine together, and to make joynt preparations to oppose her, in case she shall offer to molest any one of them; for so active is Man by nature, that where a suf­ficient power to hurt is present, it is seldome seen that Will is wantingUna est tenuium adversus potentiores securitatis cautio, ut scilicet potentes, si nocere velint, non possint; cùm nocendi voluntas ambitiosis hominibus & imperandi cupidis nunquam sit defu­tura. Bodin. de rep. lib. 5. cap. 6..

Also, since it is neither honourable nor advantageous for any young Prince to intermarry even with the Noblest or Richest of his own Subjects, he must of necessity fit himself out of the Roy­al Families of other Princes; here therefore they must be seen, known, and dealt with also. Besides a free and open recourse to [Page 59]forreigne parts, is so absolutely necessary to the very being of a Nation, that we see oft-times the restraint and shutting up thereof in point of trading, does so exasperate and incense a people, that the whole frame is ready to be dissolved, and the Subjects ready to rend one another in pieces, not sparing to dis­charge their anger even upon the very Prince himselfe.

These and such like instances doe demonstrate, how, not on­ly advantageous, but unavoidable it is, for severall and divided Kingdomes to correspond, act, and negotiate each with other: which it is not possible for them to doe, but that controversies both various and difficult, and which mainly concern their severall interests, even to no lesse value sometimes then whole Kingdomes, will fall in, that must be debated, and must have some determination. And when every thing else has a Law to guide it, and a rule to examine and try it by, insomuch as no one society, or petty Common-wealth can stand without some Law; the like necessity must there needs be of a Law to main­tain and order the communion of Nations corresponding and acting together. Si nulla est communitas quae sine jure conser­vari possit, quod memorabili latronum exemplo probabat Aristo­teles; certe & illa quae genus humanum aut populos complures inter se colligat, jure indiget, sayesIn Prolegom. Grotius: If there be no as­sociation which can be held up without some Law, as Aristotle hoth proved by an argument drawn from that close partnership which is usually amongst Theeves and Highway-men; then sure­ly is there want of a Law to direct that grand fellowship, which linkes all mankind, or divers States together. And again,Grot. ibid. Si­cut cujusque civitatis jura utilitatem suae civitatis respiciunt, ita inter civitates aut omnes aut plerasque ex consensu jura quae­dam nasci potuerunt, & nata apparet, quae utilitatem respiciciunt non coetuum singulorum, sed magnae universitatis; As the Laws of every particular Common-wealth are made for the benefit thereof, so some certain Lawes might be and were certainly a­greed upon by all or most of the Nations of the world, which should conduce to the welfare, not of any one people, but of the great communion of all men.

Now the Law that guideth those transactions which are u­sually observed to arise between grand Societies, is the Law of [Page 60]Nations: which is most naturall and rationall in its kind too, being grounded at first upon a common necessity that lay upon all Nations, to have reciprocall dealings and negociations with one another, & which the very Nature of those several dealings, and Reason it selfe dictates as necessary to be observed, so that without it such communion could not long endure.

Under the regulation hereof comes Embassies, courteous en­tertainment of forreigners and strangers, Laws of Arms, free­dome of Traffique, right of Contracts, free passage through each others Borders, Reprizalls, the preserving and redemption of Captives, Leagues, Truces, Articles, and such like. The strength and vertue of which Law is such, that a people can with as little safety violate it by any act, how advantageous soever it may seem to be to the whole BodyQui civium rationem baben­dam dicum, ex­terorum negant, bi communionem & societatem humani generis dirimum. Cicer., as a private man can, in hope to benefit himselfe, infringe the Law of his Countrey. Sicut civis qui jus civile perrumpit utilitatis praesentis causa, id convellit quo ipsius posteritatisque suae perpetuae utilitates con­tinentur; sic & populus jura naturae gentiumque violans, suae quo­que tranquillitatis in posterum rescindit munimenta Grot. in Pro­legom.: As a Sub­ject trespassing against the Law for a present advantage, brings the future happinesse of himselfe and posterity into hazard, so a people that shall trample upon the Law of Nature and of Na­tions, strips it selfe of the onely preservative of their peace and safety. It is not onely lawfull but honourable for any people, either to right or revenge the breach of the Law of Nations. And as in the state of one Countrey, any man may accuse upon a publick crime, so in the state of the World, any people may prosecute a common offence: for as there is a civil bond among all the people of one Nation, so is there a naturall knot among all men in the world, which should it be once dissolved, it must needs endanger the whole frame of that communion. Nay, of such power and praeeminence is the Law of Nations, that no par­ticular Nation can lawfully prejudice the same by any their se­verall Laws and Ordinances,Si Princeps velit vel jus gentium prima­rium vel secu [...] ­darium intra sui imperii limites abrogare, potesta­te sua abuti cen­seudus est. Bar­bos. Collect. in c. 9. dist. 1 [...]n. 6. more then a Man by his private resolutions, the Law of the whole Common-wealth or State wherein he liveth: for as a Civil Law, being the act of a whole body politick, doth therefore over-rule each severall part of the same body, so there is no reason that any one Com­mon-wealth [Page 61]of it selfe, should to the prejudice of another, an­nihilate that whereupon the whole world hath agreed: for which cause, the Lacedaemonians forbidding all accesse of stran­gers into their Coasts, are in that respect both byLib. 2. Cont. Appion. Josephus andLib. 9. de sa­nand. Graec. affect. Theodoret deservedly blamed, as being enemies to that hospitality, which for common humanities sake all the Nations on earth should embrace.

And the Roman Civil Law is of singular use to teach and in­struct in this Law too. Grotius the Ornament of his Age and Nation for learning and wisdome, undertaking in his most sin­gular Book De juri belli & Pacis, to set down the severall heads of that Law which serves to direct those great transacti­ons of Peace and Warre between Nation and Nation, and to reconcile their differences, professes to have borrowed to­wards the perfecting of that admirable worke, much from the Books of the Civil Law, because, saith he,In Prel [...]gom. Rationes saepe op­timas suppeditant ad demonstrandum id quod juris est naturae; & eidem juri, neque minus gentium juri testimonium saepe praebent; They often make very clear discoveries of what is the Law of Nature, and doe give frequent instances both of that, and of the Law of Nations also.

And indeed the Law of Nations is no more then that naturall Reason which Nations doe owe, and are bound to render each to other, whilst they correspond and act together, be it in Peace or Warre; and but the very same which private men ought to practice amongst themselves in their private dealings. Which moved Mr. Hobbs Lib. de Civ. cap. 14. art. 4., when for illustration sake he di­vided the Naturall Law, in naturalem hominum, & naturalem civitatum, into that of private Men and that of Nations, to adde, that praecepta utriusque eadem sunt; sed quia civitates semel institutae induunt proprietates hominum personales L 76. Dig. de Judic l. 56. dig. de Usufruct. Populi respectu totius generis hamant priva­torum lo [...]m ob­t [...]nem. G [...]ot, Mare lib. c. [...]., lex quam, loquentes de hominum singulorum officio, naturalem dicimus, ap­plicata totis civitatibus, nationibus sive gentibus, vocatur jus Gentimu: The precepts of both are but one and the same; but saith he, because severall Common-wealths once setled are but as so many private men; the same Law which in reference to single men we terme Naturall, being applyed to whole States, Nations and people, is call'd the Law of Nations, their duties [Page 62]being indeed both alike: for what one man ought to render to another, the same ought one Nation to render to another also.

So that although what ever we read of in the Text of the Civil Law, was not intended by the Roman Legislators, to reach or direct beyond the bounds of the Roman Empire, neither could they prescribe any Law to other Nations which were in no sub­jection to them, and even those Lawes that doe treat of Military matters, Prisoners of Warre, Embassies, and such like, doe but direct what Order & Discipline shall be kept among their own Souldiers, and how if any of them be taken by the Enemy, they forfeit the right of Citizens for the time of their captivity, but shall upon returne be restored; and how free from being Sued or molested, Embassadours that come from their own Provin­ces, not from forreigne States to Rome, should be; and so all those constitutions and such like, have still looked homewards, and no further, asLib 1. de jur. Bell. cap. 1. Albericus Gentilis has truly observed: Yet since there is such a strong stream of Natural Reason continually flowing in the Channell of the Roman Lawes, and that there is no affaire or businesse known to any part of the World now, which the Roman Empire dealt not in before, and their Justice still providedA Romanls ad omner populos juris faecialis to­tiusque justitiae fontes purissimi manarunt. Bodin. de rep. lib. 5. cap 6. for; what should hinder, but that the nature of af­faires being the same, the same generall rule of Justice and di­ctates of Reason may be as fitly accommodated to forreigners dealing with one another, (as it is clear they have been by the Civilians of all ages) as to those of one and the same Nati­on, when one common Reason is a guide and a light to them both? for it is not the Persons, but the Case, and the Reason therein that is considerable altogether. How came the old Law given to the Jewes to be in some measure obligatory to the Christians coming so long after, and to be of force still, and will be as long as the World endures, but because, besides the ceremoniall and judiciall part thereof, (which was observable by the Jewes onely, and is now abrogated, in as much as it had but a temporary cause of Gods ordaining it) there was also a Na­turall and a Morall part incorporated in it, which all Nations and Men are bound to fulfill and keep, and can never cease? Haec pars legis vivit, sayesDe Legib lib. 9. cap. 11. nu. 22. Suarez, non tamen quia legis Moysis [Page 63]pars, sed quia naturae lex est, & novae legis pars, vivetque in sempiternum: This part of the Law remains in force, but not because it was a part of Moses his Law, but because it was given first by Nature, and the new Law has since confirmed it, and the authority thereof shall remaine for ever.

So and in like manner, there is in the Roman Civil Law a cir­cumstantiall and a positive part, which was a Law to the Romans, and by them to be obeyed, but neither of force or use to others, being made for that people, climate, and government onely. But there is in it too a Law whereunto by the light of Reason men find themselves bound in that they are Men; a Law by composition, for multitudes and politick societies of Men to be guided by; a Law that may be applyed to the communion and fellowship of all Mankind, or divers Nations linked in amity and friendship together; and this part of the Law is naturall, perpetuall, belonging not to the Romans onely, but to all Nati­ons and Men; neither can it have any cause of change, when that which gave it its first institution remaineth for ever one and the same.

Yet as the Civil Law is Roman, it is of no validity, but as it is naturall only: for as it was Roman, it extended not beyond the bounds of the Roman Empire, nor did it take care for any other People or Nation but the Roman onely, nor could the com­manding power thereof endure longer then the Empire it selfe lasted. But when it treats and discusses such matters as are com­mon to all mankind, and not onely the Roman Nation did, but all Nations and People doe still deal in; as of contracts of all kindes, both at Land and at Sea, dispositions testamentary, suc­cessions in deceaseds Estates where no Will is made, good of­fices done at anothers charge or detriment; of the relations between Father and Son, Husband and Wife, Master and Ser­vant, Governours and Governed, Magistrates supreme and sub­ordinate; of matters of property and possession, injuries done to the persons, or scandalls to the credit, or dammages done to the goods of Men; of servitudes due from Houses or Lands to other Houses, Lands or Persons, Crimes and Offences of all sorts, and the punishments greater or lesser that attend them; explanation of Lawes or Statutes, or of any obscure clause in any [Page 64]Contract, Speech or Writing whatsoever; of Customes and other publick duties payable to the Exchequer, Authorities, Powers or Commissions granted to others: Deeds of free gift, Writings obligatory, Instruments, Pattents, Charters, pri­viledges in Writing or by prescription; Customes and pre­scriptions to take away or diminish the right and property of others: of reparations upon fraud, non-age, absence, or other impediments unavoidable and necessary; Nusances done in publick places or High-wayes, or from one House to another, obstructions in Rivers or Water-courses, Mortgages in Law as well as Fact: of goods lost in Ships, Taverns, Inns, or delivered to Carriers to convey to other places, or left with other Men to keep; services due to the Common-wealth, patrimoniall, personall, and mixt, Souldiers, and the exemptions and discipline belonging to them: Of judiciall Tryalls in all these cafes and many more, where the quality of the Judge, his kind of Juris­diction, the manner of Tryall, the Officers assisting, the kind of Evidence, the Judgement, the Execution thereof, or remedy by way of Appeale come to be considered: I say, when the consideration of these severall matters is as incident to all other Nations and times that live under Order and Government, as it was to the Roman, and that there be delivered and laid down in the Roman Civil Law such rules and dictates as are most naturall, essentiall, and necessary to be observed in each of them; it must needs be, that the use of the Roman Civil Law in these particulars, as to the matter of it, can neither be locall nor temporary, neither be limited to that Empire, nor determine with it, but must be of use every where and for so long time as the businesse to which those rules are applyed, comes to be acted and dealt in, which will be as long as the World it selfe endures, and untill men leave to traffique and converse with one another.

Now as in the matters before specified, the difference that a­rises may be sometimes between the publike and some private person, sometimes between one private man and another with­in the same Nation; so it may be also between a subject and a stranger, or between strangers only, or between Nation and Na­tion; and yet the same measure of justice will hold and serve for all. For look what justice may be rightly afforded between one [Page 65]man and another upon the generall rule of naturall equity and right reason, the same may as warrantably be dispensed between one Nation and another, as oft as any variance happens between them.

And hence it is that all those Writers that handle and treat of those controversiall things, which frequently come to be di­sputed between one Nation and another, as they are all Civili­ans, so though they doe make use of other authorities besides, yet the strongest and most convincing arguments that they bring to resolve them by, are fetcht from the generall rules of Equi­ty and right Reason set down in the Civil Law. And were it not for them, we had no certainty to rest upon, nor any peace­able determination could be made of such controversies, but the sharpest Sword must be drawn out to cut the knot asunder: For what can Histories and the examples drawn from them doe to­wards a composure? Errant, qui quod exemplo fit id etiam ju­re fieri putant, sayesDe ju & offic. Bellic. lib. 1. ca. 2 Ayala out of Cicero; It is an errour in any to think, that what has once been done, may therefore be lawfully done againe. The force of example is weak and in­sufficient, Sana ratio exemplis anteponitur, sayesDe ju. Bell. lib. 2. ca. 18. Albericus Gen­tilis; Sound reason is far above examples. Besides, the in­tegrity and truth of Histories is questionable, Saepe tempori, saepe affectibus serviunt; and they too too often afford examples con­trary each to other.

And moreover, by as it were a generall consent of Nations, there is an appealing to, and a resting in the voice and judge­ment of the Civil Law, in these cases between Nation and Nati­on. The reason whereof is, because any thing that is irrationall, unnatural, absurd, partial, injust, immodest, ignoble, treacherous or unfaithfull, that Law abhorreth; and for that it is the most perfect image and representation of Nature, and of the Equity and Reason Nature prescribes to humane actions, that was ever yet presented or set forth to the World in a Law. And there­fore whosoever will observe the style of the Imperiall Law, he shall find it least of all to run in this strain; Sancimus, Man­damus, praecipimus, jubemus, imperamus, volumus; We decree, command, will, enjoyn, enact, or in the like imperious and com­manding way, but most in a gentle, soft, rationall, and a [Page 66]convincing way, thus; Non est aequum. Nulla juris ratio, aut aequitatis benignitas patitur. Bona fides non patitur. Divinè ad­modum. Non est dubium. Nimis grave est. Non sine ratione. Nihil tam naturale. Naturalem habet intellectum. Dolo facit. Absurdum est. Contra bonos mores est. Cùm satis inhumanum est. Cùm nulla ratio sit. Humanitatis ac religionis Ratio. Hu­manitatis intuitu. Humanum esse probamus. Ita nobis cordi pu­dor est. Indignum est. Iniquissimum est Cùm ratio naturalis. A plerisque prudentum generaliter definitum est. Improbum qui­dem & criminosum. Periniquum est. AEquissimum visum est. AEquissimum putavit Praetor. Boni viri arbitratu. Juxta arbitri­um boni viri. Hic titulus aequitatem habet naturalem. Hoc edi­ctum summam habet aequitatem, & sine cujusquam indigna­tione justae. Ʋt moderatae rationis temperamenta desiderant. Nec verecundiae nec dignitati convenit. Nemo est qui nesciat, and the like, as if nothing were offered for a Law, but what is evident in it selfe, and all men must own, and presently apprehend to be just and equall.

There was never any Law more agreeable to the Divine, and to the rules of Conscience and exact righteousnesse, then that Law. Tertullian in his Apologetick against the Romans did ac­knowledg, Eorum leges ad innocentiam pergere, & de divina lege ut antiquiore, ferme mutuatas; that their Laws did walk in the way to innocence, and were almost the same with the Divine Law. Philip Melancthon another Divine and a Protestant, sayes that and more: Ad normam effictam in mentibus humanis, & De­calogi voce declaratam atque illustratam congruunt humanae leges, quae citra controversiam post Mosaicas caeteris ut antiquitate, sic dignitate; ut auctoritate sic veritatis certitudine; ut rationum & damonstrationum evidentia, sic ordinis praestantia antecellunt: The Roman Lawes, saith he, are made after the likenesse of the Decalogue, and do not differ from those notions and principles of Reason which Nature hath implanted in all men. And it is out of all question, that setting aside Gods Law, they are as more ancient, so more renowned; as of higher authority, so truer and clearer in determination; as of a more evident demon­stration and reason, so of a more excellent rank then other Laws that yet have been.

Which conformity and likenesse of the Civil Law to the Di­vine and Eternall, has been the onely cause, that the Casusts and Divines that have created upon cases of Conscience, and have laboured to teach men what rules they must walk by, to doe justice, and to execute righteousness in their dealings and communications with one another, they doe every where about their books and writings, propose & set down the very rules and maxims of the Civil Law as the best lessons of morality & justice, citing the very Lawes themselves, and the authorities of that pro­fession; which were incongruous and vain for them to doe, were not their justice, equity, and soundnesse unquestionable, and their authority beyond all dispute, even in those things for which their authority is brought by them. Neither is it they a­lone that set this high estimate upon the authority of the Civil Law, since the Learned in other faculties doe the same: with whom there is nothing more frequent, then when the duties of men one towards another in their severall relations com to be set forth, as between Parents and Children, Masters and Ser­vants, Husband and Wife, Sovereign and Subject, Magistrates and private Men, Captain and Souldiers, one Citizen with ano­ther; or when the best rules and advantages are to be laid down for the first founding of a Common-wealth, or the keeping of it in safety and splendour; or when the justice and convenience of a Law is in question; or the actions of Men, even of Princes themselves, be to be approved or condemned: In all these cases and the like, nothing I say is more usuall with Writers of highest renown for Learning and wisdome, then to fort fi [...] their resolu­tions and dictates one way or other, with the practice and dis­cipline of the Roman State; and to make the Civil Law their Touch-stone to try all things by, and the best and most appro­ved ballance to weigh them in; judging the authority thereof to be beyond deniall in any thing that it does either defend or disallow, and for such as it is presented, does it passe currant with all men.

The Civil Law requires that an act should be worthy and laudable as well as lawfull, that it should be faire, equitable, ingenuous, and candid, as well as strictly just. Subtilties and ni­ceties of words, and those apices juris, finesses of Law, and [Page 68]fine-spun webs of Wit, which are opposite to integrity and ho­nest dealing, and which through a precise form of words and strict propriety of speech, would frustrate what was purely at first intended, it will not allow of or endure. Bonae fidei non congruit de apicibus juris disputare, says Ʋlpian. l. 29. Parag: 4. Dig Mandat: It suits not with sincerity, to contend about curiosities: Sensum non va­na nominum vocabula amplecti oportet, l. 2. Co: De coust: pecuu: The true intended sense and not the bare litteral signification is to be pursued. Scri­ptum sequi calumniatoris est, boni verò judicis, voluntatem scriptoris autoritatemque defendere, says Gail. Lib: 2. obs: 132. out of Cicer: pro Cae­ [...]inn: It is the part of a Caviller to keep close to words, but of an upright Judge, to uphold the intent and meaning of him that spake them; Qui pertinaciter à scripto recedere non vult, perniciosè erraet, sayes Peckius; Ca: 88. De reg: ju: in 6. in in princ: He shall offend perniciously, that will grant but what the very words will bear, and will be got to yield no fur­ther.

And therefore the Civil Law which we have now, had it been in being in the third Punick War, when the City of Car­thage by a crafty exposition of words was quite demolished by order of the Roman Senate, after they had first given their faith to the Carthaginians, in these expressions; Civitatem Carthaginis salvam fore, jura, privilegia, immunitates easdem habituros quibus antea semper usi fuissent, The City of Car­thage should be saved, and the same rights, immunities, and priviledges should be continued unto them which they always had; would have condemn'd the whole Senate for such their breach of faith and treachery, though there was not the life of any person touch'd. For who could doubt, but that the Car­thaginians articling for the safety of the City, did aim and in­tend to have the place preserved as well as the persons? And it was a shameful defence to say, as the Romans did, that when the people of the City were all preserved and kept alive, the true City was saved, which was as much as they promised, though the walls and buildings themselves were destroyed; Civitatem maenibus urbis minimè contineri, The word City does import the Men, and not the Structure or Edifices thereof.

For although in strict propriety of speech there is that nice difference inter urbem & civitatem, quò urbs aedificia, Civi­tas [Page 69]incolae sint; yet leguleiorum est, syllabas & apices aucupari, non militaris simplicitatis, sayes Alber [...]cus Gentilis; De jur; Bell: lib: 2. ca. 4. It is for Lawyers to catch at words, and not for Souldiers, whose plain meaning admits not of such nice distinctions. In fide, quid sen­seris non quid dixeris cogitandum est, says Grotius; De Ju. Bell: lib: 2. ca: 16. nu: 1. out of Tully. Where faith is given, what was meant is to be regarded rather then what was spoken. The Plataeans were as selfe and unworthy, when after they had promised to send home the Prisoners taken, slew them first, and so sent them home dead, quasi cadavera essent captivi, & mortuus homo esset homo, says Albericus Gen­tilis; d. ca: 4. as if it were to be believed, that the Carkases were the Prisoners themselves, or a man dead could be thought a man. And as deceitful were the Baeotians too, who having ingaged to restore the City, did deliver it up, not standing, but rased and pul [...]d down. So was it an act most treacherous and false in Alexander, who first gave a besieged Town an Assurance that they should go forth of the Town safely, and then after they were quite gone forth, and set forward some part of their way, put them all to the sword. Grotius d ca: 16. out of Tully. says truly, ejusmodi frau­dibus astringi non dissolvi perjurium, by such fraudulent evasi­sions perjury is rather augmented then wiped away.

In Contracts between Princes or several States, exuberantior fides requiritur, a greater measure of sincereness is required, and subtil interpretations ought to be avoided, and such a mean­ing ought to be given to their compacts, as not Criticks, but vulgar and plain-dealing men may like of, and which was most probably intended by him for whose sake and benefit they were originally made. And in such sense Divines do agree all Oaths ought to be taken; Quacunque arte verborum quis juret, Deus tamen qui conscientiae test [...] est, ita hoc accipit sicut ille cui juratur intelligit, says Isidore, cited in the Canon Law.c. quacunque caus: 22. quaest: Let the words by which we swear be never so artificially laid, yet God to whom our most secret thoughts are manifest, takes every oath in such a sense, as it is understood by him to whom such Oath is made. For which cause St Austin Epist: 224. has pronoun­ced them perjured, qui servatis ve his, expectationem corum quibus juratum est decepe unt, who having fulfill'd the bare words, have frustrated the true expectation of those to whom [Page 70]they sware. Even as the Civil and Canon Law both, deems them not fulfillers but fraudulent transgressours of a Law, that perform the words, but act against the true intent and mean­ing of it. Certum est, quòd is committit in legem qui verba le­gis complectens, contra legis nititur veluntatem: l. 5. Cod. De legi. reg 88. De reg. ju. in 6. Whosoever keeping strictly to the words of a Law, perverts the intent, does clearly offend against it: For Lex non in verbis sed in sensu, non in superficie & foliis verborum, sed in medulla consistit, says Peckius. D. reg. 88. nu. 7. The Law lies not in the outward bark of the words, but in the pith and marrow, which is the sense.

Likewise in last Wills and Testaments, it will have the minde and meaning of the Testator, if known, to be pursued, what­soever the proper signification of the words be. Non enim in causa testamentorum, says Marcellus, l. 69. Parag. 1. Di. de leg. 3. ad definitionem utique descendendum est, cùm plerunque abusivè loquantur, nec propriis nominibus ac vocabulis semper utantur: In questions about Wills, we must not flie to that sense that the words will in ex­tremity bear, since most do speak improperly, and they are but few that can deliver themselves in proper and apt expressions. And therefore says Mantica, De conject. ult. vol. lib. 3. Tit. 3. nu. 1. Cavendum est, ne dum nimia subtilitate verbonum utimur, vera judicia defunctorum subver­tantur; We must take heed, that we do not so precisely ob­serve the words, as to disappoint the true intentions of him that uttered them. From which sentences and sayings of the Civil Law it is clear, that no words, forms, niceties, or pro­priety of language is of any regard in the Civil Law, in com­parison of truth, faithfulness and integrity. For verba menti, non mens verbis servire debet; Words were made as instruments to serve and express the mind, and not to command or con­troul it.

Further, it takes care to suppress not onely those things which are manifestly evil, but some things also which are no otherwise bad, then as they are illaudable and undecent. Non omne quod licet honestum est; l. 144 Dig. De reg. jur. Every thing that is lawful, the Civil Law does not esteem to be honest. If a Divorced wife Marry again, and by that marriage has a daughter, though she be not daughter in law to the first husband, nor any way of kin or allied unto him, since the first marriage was quite dissol­ved, [Page 71]yet he cannot marry her:Parag. 9. Inst. de Nup [...]. Neither will it allow the father to marry his bastard daughter; nor the father to marry the sons spouse, nor the son to marry the fathers; the reason is, quoni­am in contraheudis matrimoniis naturale jus & pudor inspicien­dus est; l. 14. Parag. 2: Di. De rit. [...]. in matrimonial copulations it ought to be considered, what nature and sobriety does allow of; and where it be doubt­ful, whether a marriage may be lawfully had or not, this rule [...] ever prescribed; In re dubia certius & modestius est hujusmodi nuptiis abstinere; D. l. 14. Par. 3. in an uncertainty it is safest and most mo­dest not to contract such marriages. So that in some things, Quod non vetat lex, hoc vetat fieri pudor; and as Bartol o­l. 8. Dig. De Aliment. leg. has expressed it, Non modo obligatio, verum etiam verecundia nos obligat; There be some things, which for very shame we must forbear to do, though otherwise the Law will permit us to do them.

The Civil Law tels the very Emperour himself, that for him to demand a Legacy by a Will that was void, inverecundum est, it was undecent. Decet enim tantam majestatem eas servre leges quibus ipse solutus esse videtur; l. 23. Dig. de legat. 3. It is most beseeming his High­ness for to keep those Laws whereof he may seem to be free. And again, Digna vox est majestate regnantis, legibus alligatum­se profiteri; l. q. co. De lo­gib. It is language worthy of a Prince, to acknow­ledg himself bound to Laws. What did Seneca in his grave Philosophical precepts say more, when he cried out; Quàm angusta innocentia est, ad legem bonum esse? quanto latiùs officio­rum patet quam juris regula? multa pietas, humanitas, libe­ralitas, justitia, fides exigunt, quae omnia extra publicas tabulas sunt. How poor is that innocence, to be but as good as the Law requires? How much further does the officious respects which men owe to one another go, then the letter and rule of Law? How many things be there, which Piety, Humanity, Nobleness, Equity, and Uprightness do exact, which are out of the provision of the Law altogether?

When any thing in Wills, Contracts, Laws, Statutes, or Testimonies, is rendred so doubtful, that it is capable of a te­trick and severe as well as a mild and temperate, of an odious as well as a favourable meaning; it does so much affect clemen­cy, gentleness, and moderation,Nibil nobis tam gratum est quàm humani­tas, says Justi­nian lib 57. co. De Episcopal. audient. that the gentlest and the sof­test [Page 72]interpretation shall be chosen, and it shall be taken in the mildest and best sense. What is odious and punishing, it re­strains and keeps in to the utmost, and admits of nothing more in that case, then the strict propriety of words will enforce. But what is favourable, gracious, and pleasing, it enlarges and widens, by stretching them even to an improper sense and signification. These rules therefore and such like are to be fre­quently met withall. Semper in dubiis benigniora praeferenda sunt. l. 56. Dig. De reg. ju. Rapienda occasio est quae praebet benignius responsum l. 168. Dig. cod.. In re dubia benigniorem interpretationem sequi, non minus justius est quàm tutius. l. 119. Dig. cod. In poenalibus causis benignius est interpre­tandum. l. 155. Parag. fin. Dig. cod. ca. 49. ext. cod. Satius est impunitum manere facinus nocentis, quàm innocentem condemnare. l. 5. Dig. De poen. Semper in obscuris, quod minimum est sequimur l 9. Dig. De reg. jur. Odia restringi, & favores convenit ampliari; Ga. 15. ext. cod. and the like to an infinite number. Not any thing short of the same Seneca, Epist. 81. when he sayes; Reus sententiis paribus absolvitur, & semper quicquid dubium est, humanitas inclinat in melius; Where the suffrages of a Court are equal, the defendant stands acquitted; and where any thing happens to be doubtful, cle­mency will alwayes pitch upon the gentlest resolution.

Neither does it derogate from the clemency of the Civil Law, that it seems to deal so sharply with those (against whom there are grounds enough to suspect them of some enormous crimes whereof they are accused, but not evidence full enough to condemn them) as to allow such persons to beDig. & Co. de Quaestion. set upon the Rack, thereby to manifest their innocence by an obstinate denial, or to discover their guilt by a plain confession. For the onely ground of this austere proceeding was a great tender­ness not to take away the lives of any, but upon most manifest and undeniable proof; and yet with a care notwithstanding, that for want of such full and clear proof (which offenders through their secret workings would alwayes labour to prevent) offences should not go unpunished, to the endangering of the publick peace and welfare of other men.

When a man is criminally accused, there are but two wayes to convict him, either by his confession, or by proof. As to confession; where is it seen that he that dares to offend high­ly, when he comes to be examined, does not deny it as boldly? [Page 73]and who is there that does not excuse him for seeking thus to preserve himself? Ignoscendum est ei qui sanguinem suum qualiter qualiter redemptum voluit, sayes thel. 1. Dig. De bonis eorum qui ante. Civil Law it self; that is, He is to be pardoned, meaning as to punishment, that labours by any means to avoid the shedding of his own bloud. As to proof, the Romans were so tender of the lives and personal safety of their people, that to convict a man by proof it was no easie thing, but very difficult; for they would neither inflict any corporal punishment, nor condemn any man to death, as some Christian States do at this day, upon the testimony of one single witness, though present when the act was done.Gomez. var. resol. Tom. 3. ca. 12. De Probat. delict. And in this it did exactly follow the best pattern of all other, the Law of God;Deut. 19.15.17.6. Numb. 35.30. One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses shall the matter be established.

By the Roman Law therefore, before death or other perso­nal punishment could be inflicted, there were to be two witnes­ses; they must be free from all exception, and especially they must be none of the accuseds complices, whol Final. co. de accusat. could not be evidence against one another; they must not by remote circum­stances, or by any lightl. absentem parag. 1. Dig. De poen. presumptions, but clearly and conclu­dently depose the thing; and their testimony must be agreeing also not onely as to the act done, but as to place, time, person, and other material circumstances, wherein if they did vary or disagree, the proof was insufficient. Three of the Roman Em­perours, Gratian, Valentinian, and Theodosius, did all agree in giving to all publick accusers this advertisement:l. 25 co. De Probat. Sciant cuncti accusatores eam se rem deferre in publicam notionem debere, quae munita sit idoneis testibus, vel instructa apertissimis documen­tis, vel indiciis ad probatïonem indubitatis & luce clarioribus expedita; Let all accusers take notice, that they must offer that to publick Trial which is furnished with legal witnesses, or at­tended with most luculent proof, or may be made out by argu­ments of unquestionable conviction, and clearer then the light it self.

The case therefore thus standing, that the wickedness of Men was grown luxuriant and abounding, that it acted in secret [Page 74]altogether, that it would never betray it self, and witnesses sufficient enough to condemn them could hardly be found; It was but necessaryBonum inno­cemis bono no­centis, bonum commune priva­to ante haben­dum est ordinatae d [...]e [...]tionis lege; ex dilectione autem innocen­tium capitalia judicia nata sunt. Grot. de jur-bell. lib. 1. ca. 2. sect 8. for the publick peace, and the safety of innocent and quiet men, to make them by a vigorous course of trial either fear to offend, or be instrumental to condemn themselves, rather then they should be encouraged to offend freely, out of a presumption that their evil actings should never be brought to light. For if there were but one positive witness that saw the thing done, as it was mercy and clemency in the Law not to condemn the accused presently upon so short a proof; yet were it safe, were it notSicut est ali­quando miseri­cordia puniens, ita est crudelitas parcens. Augu­stin. cruelty to all the people, were it not of ill example to absolve him quite without a further trial, meerly because there was no better proof; which their ill-minded subtilty, making an ill use of the favour of the Law, was a cause of too? So that to bring men to the rack in such cases for trials sake, is not to be censured for cruelty; Non ex saevitia, sed ex bonitate talia faciunt homines, saithl. ad Corin. 3.12. de poenis humanis agens. St Chrysostome; Such things are done by men, not out of cruelty but goodness. And I must say withDe justit. Roman. leg. lib 2. dubit. 64. arg. l. 51. parag. ult. Dig. ad l. Aquil. Maestertius, who stifly mantains this proceeding in the Roman Law: sanè hic juris rigor (si aliquis sit) utilitate publica compensatur; This rigour of the Law (if it be any) is recompensed with advantage to the whole Common-wealth; for by the terrour hereof it is free from the machinations of wicked and lewd men. And though there have been some, as Ludovicus Vives writing upon St Austin De civit. Dei lib, 19. ca. 6., and Sirca. 22. John For­tescue in his praises of the Laws of England, who have with ve­ry much acrimony-defended the contrary; yet I must say to them as thel. 3. Co. Theo­dosian. De defen­sor. civitat. three Emperours, Valentinian, Theodosius, and Ar­cadius once said; Removeantur patrocinia, quae favorem reis, & auxilium facinorosis impertiendo, maturari scelera fecerunt; Away with those Apologies, that by assisting persons that are accused, and pleading on the behalf of wicked men, are an oc­casion for wickedness to spring up and fructifie; for surely it must needs grow most, and wax most vigorous there, where it is most gently dealt withall: though as to the first, (unquestiona­bly a most learned man) whosoever reads him in that place, he may see that he there condemns this trial by torture, look­ing upon it in the general onely, and as used arbitrarily and [Page 75]without any rule or measure at all, and not as it was practised under the rules and cautions of the Roman Law. As for the other, though he is zealous to prefer the Law of this Nation before the Civil Law, and all other Laws of the World besides, yet he could not have been so bitter in censuring the Civil Law in this particular, if he had remembred with what measure of severity those that are arraigned for capital crimes, are handled by that Law that he does so much commend; which, because others of that profession have lately taken such free notice of, themselves need not mention.

And yet was not this practised amongst the Romans onely, norMore majorum introductum esse inquit Cicero, ut per tormenia veritas exquira­ratur an Partit. Orator. they the first authors of it; for they took it from the Graecians, and from the people of Rhodes, whom they follow­ed in most things. AndParat. Dig. de Quaestion. nu 3. Wesenbeck sayes of it, that it was mos antiquissimus, omnium fere bene institutorum populorum commu­nis; ut non immeritò pro lege ac jure quodam gentium habeatur; It was an ancient observation, common almost to all well or­dered Common-wealths, that it may very justly be accounted of as it were a Law of Nations. And if we look into our own Historians, andCowels Interp. verb. Ordel [...] Books of Law, we shall find that there has been a kind of trial very anciently in use amongst our selves here in England, very near to this of the Romans, and in severity no whit inferiour: For there were certain Ordeal Laws which were used in such doubtful cases, whereby when clear and ma­nifest proofs were wanting, they did try and find out whether the accused were guilty or guiltless. And this they were wont to execute one of these three wayes, either by fire, or by water, or by combate. For sometimes men were enforced to decide matters in controversie not onely criminal but civil, by the death of one another in a Duel. Sometimes they were adjudg­ed to take red-hot Irons into their bare hands; and sometimes toWhich was practised upon Queen Emma the Mother of King Edward the Confessor, to clear her self of Adultery with Allwin Bishop of Win­chester, or as some write, up­on Allwin him­self. Harkwill. Apolog. of Gods Provid. lib. 4. ca 2. sect. 5. Isaacksons Chro­nolog. Anno 1050. walk bare-foot over red hot plough-shares blind-fold. Their judgment by water was either by appointing the party accused to thrust his armes up to his elbows in seething hot water, or by having a cord tied about him under his armes, to be cast into some river.

In these cases, if the accused parties go over seven plough­shares laid a little distance one from another, and either tread [Page 76]besides them, or treading upon them with their bare feet, or taking the hot irons in their bare hands, did receive no harm: and so if the parties putting their armes into the hot water, were not scalded; or they that were cast into a river, did sink down into the bottom thereof until they were drawn up; they were pronounced innocent and not guilty: but if they were burnt by the hot irons, or scalded by the hot water, or could not sink to the bottome of the river, or were slain or vanquished in the combate, in such cases they were pronounced guilty.

But further, this great but most wholsome severity of the Ro­mans, was tempered with a very great allay of tenderness and care towards the accused offender; as may be seen by the many and most prudent cautions that were observed in it. For

First, the offence in which such trial was allowed, was to be enormous, and not so littleGomez, ver Resol. Tom. 3. ca. 13. nu. 2. as was to be punished by banish­ment or pecuniary satisfaction, but either death or corporal punishment was to follow it.

Secondly, it never could be had where there could be got­ten a full and a sufficient proof to condemn without it. For this was to be the last means to bring forth the truth, whenl 12. co. de Quaestion. all other means did fail.

Thirdly, before a man could be brought to the rack, the offence was to be made outMultis inditi­is oneratus, & argumentis penè convictus reu [...] esse debet. We­senb. parat. dig. cod. nu. 7. with such an evidence, as in some other States would be sufficient to take away life it self, if the crime were capital: for either it must be proved by one witness who saw it done, or if it could no otherwise be made out then by circumstances, they must be very pregnant and convincing, and such circumstances must beGomez. dict. ca. 13. nu. 18. proved at least by two witnes­ses.

Fourthly, the accused person had all free license given him to disable the accusers proof, to disparage his witnesses, or to offer anySi quaedam indicia pro reo faciant, quae el­ident contraria, ita ut amplius ca semiplenam probationem non impleant, ad torturam parveniri non debet. Wesemb. parat. Dig. De quaest. nu. 7.11. evidence to the contrary; and if the Judge did at last condemn him to be brought to the rack, heL. 2. Dig. De appellat. recipiend. might yet appeal.

Fifthly, it must be executed with a respect had to the strength or weakness of the body that is to suffer, and no further then may serve to draw out the truth, ut moderatae rationis tempera­menta desiderant, sayesl. 10. parag. 3. Dig. De quaest. Arcadius; and, ut homo salvus sit vel innocentiae vel supplicio; as may stand with all fitting and rea­sonable moderation; and that he may be preserved either to innocence or to punishment.

Sixthly, The Law notwithstanding gave so little credit to any confession made under such bitter sufferings, because it might be extored by force, and out of a hope to be rid of the pre­sent pain, rather then that they were the words of truth, that it would never condemn upon any such confession, except the party accused being redeemed from his pain, and in his full li­berty, did again confess the very same thing; nor then neither, if that which was confessed were more probable to be false then true.

Lastly, the Judge that examined him in such extremities, was directed to bear himself so cautiously,l. 1. parag. 21. Dig. cod. ut non suggerere inter­regato, sed ab eo potius veritatem requirere videatur; that the truth should rather come freely from himself, then any thing should be suggested to him. He was also diligently to mind with what voice he spake, high or low, how freely such confes­sion fell from him, or whether it came with reluctancy; and to enquire what his credit and condition of life had been in the place where he lived. Plurimum in excutienda veritate, saysl. 10. parag. 5. De cod. Ar­cadius, etiam vox ipsa, & cognitionis subtilis diligentia affert. Nam & ex sermone, & ex eo, qua quis constantia, qua trepida­tione quid diceret; vel cujus existimationis quisque in civitate sua est, quaedam ad illuminandam veritatem in lucem emer­gunt.

These were the cautions which the Roman State did prescribe to be used in this sharp, but as their policy stood (who did not love upon a slender proof to take away the lives of their peo­ple) very necessary course of trial by torture; which peace­able and just men could not be offended with, because it was toQuippe eùm ne [...]e quidem inter tot cruces & supplicia sontium satis tuta fit innocen [...] tia, sayes Gro­tius de jur. Bell. lib. 2. ca. 20. nu. 12. defend and secure them from the rage and the rapine of vile men: And if evil men did groan under that severity, they had their desert, and mightDamnum quod quis sua culpa sentit, sibi debet non altis imputare. Reg. 86. De reg jur. in 6. thank themselves. And though it [Page 78]might possibly, howbeit very rarely happen, that some innocent man might wrongfully suffer sometimes under that trial; yet what so perfect or exact a trial can there be devised or thought of, under which that rare accident may not also be? for when we have done all that we can, yet we can still but judge as Men.

In defence whereof I have therefore taken the liberty to insist the longer, because once at a publick solemn meeting, where the keeping up of this Profession came to be considered of, I took notice that this small part of the Civil Law was enforced by a worthy Gentleman, quem honoris causa non nomino, as a main obje­ction, upon which he would have that whole Law to be quite laid aside; by which rule I know not what Law there is, or ever was, that would stand: and for this reason also, to shew how wise and rational that Law is, even in that which those that do not fully understand it, would so much condemn it for; and how ea­sily in all other matters it may be defended, if so well main­tain'd in this. To go on therefore in pursuit of my first design.

The Civil Law will have rigour alwayes give place to equity. Placuit in omnibus rebus praecipuam esse justitiae aequitatisque, quàm stricti juris rationem, l. 8. Co de Ju­dic. sayes the Law; It is enacted that in all things there ought to be a greater consideration of right and equity then of strict and exact rule. For if every case, when circumstances be clean different, should be measured by one and the same rule, sub authoritate juris scientiae perniciosè ali­quando erraretur, sayes Paulus l si ser vum. dig. de verb. cblig. parag. 3.; Under pretence of obser­ving Law, we may at one time or other fall into dangerous er­rour. If a man leaves goods in my hands to keep for him, the Law doth strictly enjoyn me to restore them when they are de­mandedl. Tot Tit dig. Depos.: But if afterwards this mans goods shall be confiscate, as being condemn'd for some capital crime; or if it appears that these goods were stollen, and that the true owner comes to claim them, I should erre injuriously to keep my self to the strict rule of restoring the goods precisely from whence I had them, and not to deliver them up to the State, or to return them to the true and just owner. Haec est bona fides, sayes Try­phor inus,l. 31. dig. Depos parag. 1. ut commissam rem recipiat is, qui dedit. Sed si toti­us rei aequitatem, quae ex omnibus personis quae negecio isto con­tinguntur, [Page 79]impletur, mihi reddenda sunt, à quo, facto scelestissimo adempta sunt. Et probo hanc esse justitiam, quae suum cuique ita tribuit, ut non distrahatur ab ullius justiore repetitione; It is honesty to return the goods to him that left them with me. But if the equity of the whole case be considered, and the persons that are concerned in it, they are better returned to him from whom they were unjustly taken. I allow that justice, sayes he, which does so render back to every one his own, as that thereby no injury is done to another who has a better right therein.

And from this equity is it that several wayes and means are ordained, of restoring men to their first state and condition, from whence in strictness of Law they are fallen: For if a man through threats, or any crafty practice of another, or by his want of full age, or by his being not present, or through some sl [...]p or errour which a wiser then he might have commit­ted, be fallen into some great mischief, equity in such cases will relieve him against the Law.Tot Tit. Dig. de in integ. rest. Hence is it that the Law appoints the Judge, aequitatem semper ante oculos habere, l. 4. parag 1. Dig de eo quod cert. loc. to have equi­ty before his eyes; and that upon the entrance into his office he shall take an oath, quòd in judicando velit aequitatem sequi, Nevell. 8. that he will judge according to equity; and that all bargains are to be interpreted by equity.l. 81. Dig. Pro socio. Also sometimes we may depart from the very nature of the contract, and the very words of the will, to follow equity.Bronch. l. 90. Dig de reg. jur. Also solemnities and formes of Law, though they ought to be most carefully observed, because they are or­dained as rules for all cases; yet upon the ground of manifest equity there may be a deviation from them too. Etsi nihil faci­le mutandum est ex solennibus, tamen ubi aequitas evidens po­scit, subveniendum est. l. 7. Dig. de in integr. rest.

And yet will not the Law allow of the relief of equity in any case, which is specially even with all its circumstances settled by Law, how rigorous soever the determination of the Law be: for written rigour shall be preferr'd before unwritten equity.l. 12. parag 1: Dig Qui & à quib man. Vetantis legit major est pote­stas, quàm aequi­tatis c [...]jus speci­em ob [...]endere suae cupiditati cuique liceret. Bodin de rep [...] lib. 1. ca. 8. Clementiores lege judices esse non oportet; Judges ought not to be merciful above that that the Law it self is. But it lets in equi­ty where the Law is general, and the case in fact is accompanied with such special circumstances, that in all likelihood the Law ne­ver took it into consideration; which if it had, it would and [Page 80]must have made an exception in that case; For as Aristotle sayes, aequitas nihil aliud est quàm supplementum ejus quod lex praetermisit; equity is no more then a providing specially for that which the Law is silent in. Neither does it allow of a wan­dering, imaginary, or unrestrained equity, but what is either written and authentick from the Law it self, or what is manifest and evident to wise, rational, and the best discerning men (I mean those that are skill'd and well studied in the Civil Law, and not your vulgar rational men) by deductions and reasonings from the Law given in the like cases. Non possunt omnes articuli sigillatim aut legibus aut senatusconsultis comprehendi; sed cùm in aliqua causa sententia eorum manifesta est, is qui juris­dictioni praeest, ad similia precedere, at (que) ita jus dicere debet; Laws and decrees cannot hit every circumstance; but when their determination is certain in any one case, by that the Judge may do right in other cases that are like itl. 12. Dig. De Legib..

As it treats the living with all gentleness and equity, so it ex­tends its humanity and tender consideration to the dead too, and is indulgent to those that lie in their very graves. And there­fore it will have the heirs and executors of a deceased person to be so free to bury the dead, and to pay all such funeral respects as are due, that it will not suffer any action to be brought, or any demand to be made of any thing that was owing by him that is dead, by the space of nine dayes.Novell. 115. ca. 5. Nor can any legal process be served upon those that are accompanying the corps to burial.l. 2. & 3. Dig. De in jus vo­cand. And so far is it from conniving at the barbarous inhumanity of those, that for money owing by the deceased will arrest and stay the body from burial till payment made, or full security given, that it inflicts a sharp punishment upon such transgressours; for they do not onely quite lose that which they labour to recover by so foul an action, but also forfeit as much in value to the deceaseds heirs; and a third part of their estate is confiscate, and they make themselves infamousUt defunct. seu funer. cor. non injur. ca. 5..

And if there be such a custome which I have heard is preten­ded to by some-parishes within this Nation, and practised also, that when a dead corps is carried through towards some further place of burial, it may be staied upon the way, and not suffered to proceed till some fee or toll be paid; it is such a custome [Page 81]which the Civil Law is against. For that Law expresly provides, ne corpora aut ossa mortuorum detinerentur aut vexarentur; ne­ve prohiberentur, quo minus via publica transferrentur, aut quò minus sepelirentur; that the bodies and bones of the dead be not staied or troubled, nor that any restraint be to hinder their passage along the high-way to and fro, or to obstruct their burial.l. 38. Dig. de Mortu Infer. And generally without exception either of place or person, sayes directly, that no such see or toll shall be paid.Graec. Cod. de relig. & sumpt fun l. 15. In nullo quopiam loco vectigal ab aliqua per­sona pro corporibus ex uno loco in alium translatis praestetur; No fee shall be paid by any person in any place for the removing of a corps from one place to another.

And surely if the first ground from whence that custome came were known, we should be willing for Religion sake to lay it down. For our superstitious ancestours believing that the pray­ers of the living were useful to the souls of the dead, were wont as often as they carried forth any dead body to be buried, to stay in every convenient Town through which they went, to receive the prayers of the devout people for the soul of their deceased Brother; In recompence whereof it is probable, that something was in charity bestowed for the poor of that place, or to some other end. Which at first proceeding from bounty, we have no cause to turn it into a duty, especially to pass an indig­nity upon the dead, and when we bestow not the prayers as they did, nor indeed can think them profitable as they applied them.

Neither is the Law so careful to conduct the dead quietly to their graves, as it is severe in punishing those that shall disturb their bodies there, or shall demolish or deface their sepulchres. The place where the dead body lies is esteemed Religious, and the injury done to the body it self, or to the monument thereof, is accounted no less then sacriledge.l Co. De se­pulch. viol.

If it be done riotously and with Armes, the crime is capital; if without, it is to be considered whether the body be pull'd out of the grave, and then it is capital to those of the meaner sort, but others of better rank are banished, or condemned to work in the Mines. But if the sepulchre be onely demolished or defa­ced, a penalty is paid to the Exchequer, and good reparation given to the next heirs, and divers other punishments besides inflictedTot. Tit. Dig. & Cod. de se­pulch. viol..

Nay, though the body be interr'd in another mans private ground, though it does not allow of the act, but will order the body to be removed, or the value thereof to be paid to the ow­ner of the soyl, yet it will not suffer the owner of the ground, of his own head to unbury or take away the body, propter re­verentiam manium, & quia corpus sepultum non est inquietan­dum; for the honour due to the Ghosts of the dead, and be­cause dead men once interr'd ought not to be disturb'd; but ei­ther the Prince or the chief Priest must give authority or war­rant for the same.l 8.39. Dig. de relig. & sumpt. fu [...]. Finally, the debt contracted by the decea­sed in the time of his sickness or about his burial, shall be paid before all other debts whatsoever.l. pen. Dig. de relig. & sumpt. fund, 3. Co eod.

In all its constitutions it opposeth and setteth it self against the oppression of great ones, and hateth that wrong that comes from the potency or greatness of any person. If a person of honour shall forcibly carry away a Virgin, or invade the pos­session of another, he shall be tried by the ordinary Judge of the place where he offendeth, and not be allowed any higher or more noble Judge, which else he may claim to have: for omnem hujusmodi honorem reatus excludit, sayes the Text of the Law;l. Co. Ubi sena­to. vel clariss. His guilt renders him uncapable of any such Honoura­ble Priviledge. Neque honos ei servatur qui se in tantum scelus deduxit; l. 47. Dig. de ritu nupt. Honour is no protection for him that hath stained it with such an odious crime.

It will not allow persons of great power or high place to in­terest themselves in the controversies or litigious estates of others, neither by solliciting them in Court, nor having their names used to countenance them; ne tenuiores importunis po­tentium intercessionibus opprimantur, sayes the Text;l. 1. Co. Ne li­ciat potent. pa­trocin. that is, lest might should bear down and be too hard for right. Nay, it will not admit either the publick Exchequer or the Common­wealth, upon any pretence of debt, gift, or assignment to them made, to lend their name or patronage for the asserting of others rights.Tot. Tit. Co. Ne fiscus vel resp. proturation. Ne inde injuriarum nascatur occasio, unde ju­ra nascuntur; l. 6. Co. unde vi. that is, lest they that should do most right, should be the occasion of doing the greatest wrong.

And it is remarkable, how disdaining the expressions of the Law are in that particular, and yet but such as upon the like [Page 83]occasion are frequent and common in the Law every where. Petition being made to Gordian the Emperour, that he would suffer it, his answer was, Contra juris rationem desider as; l. 1. Co. Ne fiscus vel resp. The request was opposite to right reason. The same Emperour be­ing asked again the same thing, said, Hoc temporum meorum disciplina non patitur. Ʋnde jus tuum, si quod tibi competit, ci­tra invidiam fisci mei tueri solenniter cura; l. 2. Co. eod. that is, it agrees not with my fashion or government so to do. If therefore you have a right, prosecute it in your own name, without drawing into odium my Exchequer. The Emperours Dioclesian and Maximilian to the same thing peremptorily say, Abhorret à seculo nostro; l. 3. Co. eod. It was a thing that he and all of his time abhor­red: And again,l. 4. Co. eod. that it was contra seculi sui tranquillitatem; It would be an inlet to a general distemper to permit it.

It will not endure any fraudulent, fallacious, or deceitful dealing.Tot. Tit. Dig. & Co. de Dol. mal. If a man does wilfully alien to defraud his adversary, his act is vain; for in the eye of the Law he is taken to be in possession still. Qui dolo desierit possidere, pro possidente damna­tur; quia pro possessione dolus est. l. 131. Dig. de reg. jur. Especially it hates deceit most in those, whom it is most forward to relieve when they are deceived. The Civil Law allows not a woman a capacity to be surety or to be bound for others, though she might contract for her self, propter inbecillitatem sexus, being prone to be drawn in and to be wrought upon;Tot. Tit. Dig. ad S. C. Vellcian. Which restraint did bind her from being bound for her own husband.l. 2. Dig. eod. But if when she knows her priviledge, and will cunningly dissemble it, and offer to be bound notwithstanding, and the creditor is such a one as may be justly ignorant of the Law in that particular; or if she presents herself in mans apparel, the Law will not relieve her, but she remains subject to action: For, ita demum mulieribus subvenitur, si non callidè sint versatae: Infirmitas foeminarum, non calliditas, auxilium meruit; d. l. 2. parag. 3. It is their ignorance and weak­ness that the Law favours, and not their craft and subtilty. So no act is binding to him that is under age.Tot. Tit. Dig. de minor. But if he shall fallaci majoris aetatis mendacio aliquem decipere, say and pretend to him that deals with him that he is of full age when he is not, in that case he stands obliged and is remediless. Nam erranti­bus, non fallentibus, publica jura subveniunt; l. 2. Co. si min. se major, dixer. It is errour and [Page 84]imprudence, and not fraud, that the Law will succour.

Ingratitude is so odious in the Civil Law, that if a slave that has been manumised shall bear himself unthankful towards his Master, or if a son shall recompence the benefit of being quit of his fathers power and command, with some injurious act or of­fice against his father, they may both for their ingratitude be brought into their former yoke again.Welenb. Pa­rat. Dig de ob­sequ parent & patron. praestand. And generally, if I have out of my free bounty bestowed any thing upon another, if he shall attempt to betray my life or estate to mischief, or pass upon me any weighty injury, I need not suffer my bounty to remain with so unworthy a person, but may recall it again from him;l. 10. Co. De revocand. Donat. Cùm magis in eos collata liberalitas ad obsequium eos incli­nare deberet, quàm ad insolentiam erigere; l. 1. Co. eod. Since bounty to ought to invite men to be rather obsequious then insolent. How­beit my heir, if I die, shall not sue to recovet it: Etenim si ipse qui hoc passus est, tacuerit, silentium ejus maneat semper, sayes the Law:d. l. 10. If I against whom the ingratitude was com­mitted did not complain, let it be buried in silence for ever.

The elegance wherewith it has expressed its detestation and severity against the odious and unnatural sin of men carnally mixing with one another, is very remarkable: Cùm vir nubit in foeminam viris porrecturam, quid cupiatur, ubi sexus perdidit locum? ubi scelus est id, quod non proficit, scire? Ʋbi Venus mu­tatur in alteram formam? Ʋbi amor quaeritur, nec videtur? Jubemus insurgere leges, armari jura gladio ultore, ut exquisitis poenis subdantur infames, qui sunt vel futuri sunt rei. l. 31. Co. ad l. Jul. de Adult. The state and quality of the matter requires me not to translate the words, though most elegant.

The order that the Civil Law has setled for the sharing of a mans estate who dies intestate, is very natural, just, and ratio­nal. It sets no difference between land and goods, nor between eldest and youngest, nor male and female, but divides the whole equally amongst them; yet it has a respect to distance and pro­pinquity of degrees, and considers the whole bloud and the half after a different manner. It calls first children; if they fail, then parents; if they fail too, then the next collateral kin­dred.Novel. 118. de haered. ab in­test. venient. in [...] princ. And when I say that children shall succeed in the first place, I do thereby exclude and bar. Grand-children, so long [Page 85]as their parents are alive; for proximior in gradu semper remoti­orem excludit; Parag. si plu­res Inst. de legit. agnat. succes. the nearer in degree shuts out those that are further off. Yet if there were divers children at first, and one of them is dead, who has left children, such Children and Grand-children shall succeed together, but they shall not all share alike: for as the children amongst themselves shall par­take equally; so the children of him that is dead, if there be never so many of them, yet all representing their father and coming under his right, they shall all have but that portion which he should have had if he had lived.Parag. [...]um filius Inst. De haered. quae ab intest. defer. And this the Law calls a succession in stirpes, there being no consideration had of their number, but of their stocks onely. And though all the children of the first degree should die, each of them leaving their several children, be the number equal or unequal; yet still the children of each child shall have but the fathers or mothers part;Parag. fin. Inst. eod. for still they succeed in right of their ancestour, and not in any right of their own.Wesent. Parat. dig. Unde cog [...]a [...].

When children and all of the descendent line do sail, the Law does not onely admit the father and mother in the next place to succeed equally; but if they fail, the next in degree above them in the ascendent line, as Grand-father and Grand-mother, shall come in to inherit. And if there be both Grand father and Grand-mother by the fathers side, and Grand-father and Grand-mother by the mothers side, the estate shall be divided into two equal parts; the Grand father and Grand-mother by the father side to have one, and the Grand-father and Grand­mother by the mothers side to have the other; and though there be but one of one side, and two of the other, yet the division must be the same.Ca. 2. dict. Novel. 118.

But if the person that is dead intestate, left Parents in the ascendent line, and near kindred in the collateral line, as bro­thers and sisters; the one shall not exclude the other, but they shall all be admitted together, to divide the estate equally, every person carrying away an equal share;d cap. 2. and if there be children of a brother that is dead, they shall come in too, but no further, then to carry away their fathers part.Schneidw. Inst. de haered: quae ab int. Tit. de se [...]und. ordin. suc [...]ed. nu. 29. Howbeit, they must be brothers or sisters of the whole bloud to him that is dead, who would come in with the parents: for brothers or [Page 86]sisters of the half bloud shall not concur with them.schneidw. lot. citat. nu. 30.

Where the descendent and ascendent line doe both fail, if there be brothers alone, they have all alike; but if there be children of a brother that is dead concurring with them, they must yeeld to the children their fathers part. But if there be brothers and sisters children onely, the brothers and sisters be­ing all dead, though there be never so many of one brother, and but one of another, and two of one sister and but one of ano­ther, yet all these brothers and sisters children standing alone, how unequal soever they be in number, yet they shall all share equally; not each stock having what their fathers should have had, but every person having his equal part in the whole:s [...]hneidw. loc. cit. Tit. de Tertio ord. Jucced nu. 29. And this the Law calls sucessio in capita, a succession by the poll. The reason why they succeed thus differently when they are alone, from that which they do when they concur with brothers and sisters to the deceased, is, because here they derive no right from their ancestour, but succeed by a right of their own, being now the deceaseds next of kin: whereas in the other case they succeed by way of representation, and in the right of their pa­rent only.

But if brothers and sisters and their children do both fail, it is a certain and uncontrouled rule, That whosoever is next in de­gree to him that is dead, after these in the collateral line, bars and shuts out all of any degree that is further off.Auth. post. fratres. Co. de legitim, haered. For the right of representation reaches no further, not to any other then to brothers children in the collateral line.Ca. 3. dict. Novel. 118. Wherefore if a man dies leaving Uncles and Aunts both by father and mo­ther, they are all admitted to have equal shares; but no chil­dren of any Uncle or Aunt that is dead, shall be admitted to come in with them. And so much the Civil Law prefers the whole bloud before the half, that if a man dies, leaving Brothers of the whole bloud, and Brothers of the half, the whole bloud onely are admitted, the half being quite excluded.Auth. Ces­sante co. De legi­tim. haered. Nay further, a Brothers son of the whole bloud shall carry away the estate from the Brother of the half. But if there be no Brothers or Brothers children of the whole bloud, then the Brothers and Sisters of the half and their children are let in, to exclude remo­ter kindred.d. Auth. post fratres autem. Howbeit though the being of the half bloud be a [Page 87]bar to succession in Brothers and Brothers children, yet does it bar no other further off then they. If therefore a man dies lea­ving two Uncles, the one Brother of the whole bloud to his fa­ther, the other Brother of the half, the whole bloud here shall not exclude the half, but they shall both succeed alike. For in the collateral line, after Brothers and Brothers children, solùm consideratur proximitas & paritas graduum, non duplex vincu­lum conjunctionis; the nearness in degree is onely to be respect­ed, and not the bloud. Wherefore they being both in an equal degree, they are to be dealt withall in this point of succession equally.s [...]hneidw [...] loc: citat. Tit: De tertio erd: suc­ced: nu: 34.

As for the wife, because under the Roman state she might have a three-fold patrimony of her own; First her dower, se­condly, the goods that she brought in marriage to her husband over and above, call'd bona Paraphernalia, or bona extra dotem; and thirdly goods or estate that she kept in her own hands, which never came to the hands of her husband:Paul de castr: in l. maritus. 21. co: de procurat: And because by the course of the Civil Law, both her dower and the goods that she brought besides over and above, her husband being dead, came back to her again, the husband having but the use of them during life;l. 4. co: solut: matrimon: therefore where there was either chil­dren or kindred, it did not admit the wife to have any part or portion in the husbands estate, but did leave her to enjoy her own.

But if the case were such, that she had no portion to bring in marriage, or had but a slender one, and that she has nothing or not enough of her own to subsist with, nor otherwise be provided for by her husband, the Law does then allow her a fourth part out of her husbands estate, if there be three children or under; but if there be more, she shall then have an equal share with them for her life. But if there be kindred onely, and no children, or if the children that be, be not her children, but children of another marriage, she shall have the property there­of for ever.Auth: praeteres. co: Unde vir & Uxor: schneidw: loc: citat: Tit. De succes: inter vir: & ux: nu: 14.

But there is nothing that the Civil Law is more strict and sol­licitous in, then to keep men fast to such promises, covenants, and free gifts that they have made to others, though made ne­ver so liberally and freely, and without any consideration at all. [Page 88] Nihil ita fidei congruit humanae, quàm ea quae placuerant, custo­diri; l. 20 Co. De Transact. Nothing suits better with common honesty, then that those things which have been once assented unto should be ob­served. Which it will have binding and obligatory, though any right or property that a man has, be there by passed and con­veighed away. Nihil tam conveniens est naturali aequitati, quàm voluntatem domini volentis rem suam in alium transferri, ratam haberi; Parag. 1. Inst. De verb. obligat. Nothing does nearer approch unto natural equity, then that the minde of any man who once puts over any thing that he has to another, should stand of force. And the Law is the same, when a man without any asking does of himself free­ly give any thing to another, though he does not presently part with the possession.l. 35. parag. ult Co. de Donat. The reason that is given by the Law is, Cùm in arbitrio cujuscunque sit hoc facere quod instituit, oportet eum vel minimè ad hoe prosilire, vel cùm venire ad hoc proper ave­rit, non quibusdam excogitatis artibus suum propositum defraudare, tantamque indevetionem quibusdam quasi legitimis velamentis protegere; When it is in every mans free power to do as he pur­poses at first, he ought either not to offer it at all, or when he has gone so far as to pass his word, he should not seek by any devised artifices to slip from his first intention, or to prop up so much unworthiness with any fair or colourable pretences. Onely a free giver has this favour shewed him, that he shall not be ur­ged to make good his word any further, then in quantum facere potest, habita ratione ne egeat, so far as he is able to perform, and not want himself.l. 28 Dig. de reg jur. Nor shall he be so severely dealt with, as one that has debts to pay. Pinguius donatori succurrere debemus, quàm ei qui verum debitum persolvere compellitur; ne liberali. tate sua inops fieri periclitetur, sayes the Law;l. 49, 50. Dig. De re judic. We must lend a more favourable hand to a free benefactor, then to one that is to pay a just debt; lest a mans freeness should expose him to the danger of extreme want and penury. And albeit it be a rule in the Civil Law, that a bare promise or compact, call'd Nu­dum Pactum, is not obligatory, nor shall give any cause of acti­on:l. 45. Dig. de pact. Yet when there is discerned a seriousness and an advised purpose in the promiser, so that he does not do it suddenly, and ad captandam benevolentiam, to get favour onely; or if it be manifest, that he does it out of pure liberality, the want of re­compence [Page 89]compence or consideration will not make it Nudum Pactum, but that an action shall arise upon it, and he shall be bound to perform it. Or if such promise or compact be put into wri­ting, which may argue it to be serious and deliberate; the de­fect of a valuable consideration will not make it to be a Nudum Pactum, but that it shall bind, and he that made it shall be en­joyned to perform it also, though he received nothing at all in recompence for it.Maestert. de just. Roman. Leg. lib. 1. ca. 31, 33.

When the Civil Law gives way to two that are indebted each to other, that when either sues, the other may plead in bar the debt which the complainant ows him; which if it be equal, it strikes it off wholly, or lessens it if it be under, and so by discounting, a mutual discharge arises without any money paid; or not so much as is demanded; who sees not that this part of the Civil Law is established upon so much natural equity and reason, that it had been a Law of it self, if the Romans had not made it so, and ought to be of force every where throughtout the World, it is so full of pure justice and reason? Interest enim nostra potius non solvere quam solutum repetere; l. 3. Dig. de compensat. It is an advantage rather not to pay at all, then to pay once, and be put to demand the same again. And, dolo facit qui petit id quod mox redditurus est. l. in condem­natione. parag. 3. Dig. de reg-jur. His intent must needs be fraudu­lent, that will exact that which he must render again to him from whom he receives it. Besides, he that will rightly ask his due, must yeeld to another what is due to him. And albeit it may be said, that he may also sue to recover that which is ow­ing unto him; yet, frustra fit per plura quod fieri potest per pau­ciora; l. 10. Co. De Judic. A second action is a needless trouble and charge, which may be brought to an end by one. Stoppage therefore is unque­stionably the most natural, equal, and easie way of payment; provided, that the debt that is set against the debt demanded, be of the same kind, and clear without dispute; which if it be, it may be pleaded even after judgment, to hinder execution.Si [...]hard. in Rubr. Co. de compensat. Yet it will not suffer me to plead a debt against him that has put into my hands a summe of money in trust to keep for him, be­cause my faithfulness and truth was here relied upon; nor against the Exchequer that demands tribute or custome, for that the safety of the people is therein concerned.Parag. 30. Inst. de act. l. 3. Co. de compensat.

The Romans did so throughly see the necessity that lay upon men to perform mutual offices and kindnesses each to other, that to encourage men the more to pay these reciprocal du­ties, so necessary to each others common being, the scope of their Laws tended to secure all men from sustaining any pre­judice by being officious or active for the benefit of other men. If therefore in my friends absence I expend money, or contract a debt upon my self to accommodate and improve his business, though I did it without his privity or knowledge, the Civil Law will see all that I have laid out shall be restored me, and will compell him to save me harmless, where either I have or can possibly suffer detriment for his sake. For, sicut aequum est, sayes Gaius, negociorum gestorem actus sui rationem reddere, & eo nomine condemnari, quicquid vel non ut oportuit gessit, vel ex his negociis retinet: ita ex diverso justum est, si utiliter gessit, prae­stari ei, quicquid eo nomin [...] vel abest ei, vel abfuturum est; l. 1. Dig. de ne­go [...]. gest. As it is but fitting, when I undertake to act in another mans bu­siness, I should give an account for what I do, and answer for any thing I have done amiss therein, and render unto him such profits as his affairs and goods have yeelded: So on the other­side it is but just, where I have served him with success and ad­vantage, that there he should reimburse me all that I have usefully expended, and free me of all present and future preju­dice whatsoever. Hence is it, that if I pay another mans debt with my own money; or free from captivity anothers son or such neer kinsman, whom nature would oblige him to redeem, or if being a Physitian I attend and prosecute the cure and reco­very of anothers servant that is sick or wounded: in none of these cases will the Law suffer me to be a loser in any measure; for what cost I have been at, or whatsoever I have disbursed shall be allowed me: Iniquum est, sayes Gaius, officium suum alicui esse damnosum; l. 7 Dig. Te­stam. quemadm. aper. It is unreasonable, that a man for his courtesie and goodness should reap a prejudice. Upon the equi­ty hereof is that proceeding in the Admiralty Court clearly ju­stified, whereby, if a Ship being set upon by Pyrats or by ene­nemies, shall be rescued by anothers S [...]ip seasonably coming in to her rescue; it charges the Ship that is thus redeemed with salvage money to the other that did so endanger herself, to pre­serve [Page 91]her; that recompence being but in lieu of all dammages thereby sustained, and for future encouragement to other to fight in the defence of those that they see assailed hereafter. Upon the same equity is it, that when a Ship is in danger to be cast away through a raging tempest, if to lighten the Ship, some of the heaviest goods belonging to others be thrown overboard, and thereby the Ship and the rest of the goods comes safe home, the loss is made common and reparable by the whole. AEquis­simum enim est, sayes Paulus, commune detrimentum fieri eorum, qui propter amissas res aliorum consecuti sunt ut merces suas sal­vas haberent; l 2. Dig Ad leg. Rhod. It is most equitable, that their wares should joyn to make up that loss, which was the onely means whereby they were preserved.

In like manner, though goods taken at Sea by Pyrats from the true owners, may be challenged and regained from any hands, where ever they shall be found and met with (though it is other­wise in goods taken by an enemy in a just and open war) yet if a man shall expend his own money to redeem them out of the Pyrats hands, not for his own use, or to make a good bargain for himself, but with an intent to bring them home to their true owner; in this case, if the owner will have them, he must first lay dawn the purchase money.l. 6. Dig. de Captiv. & post­lim. revers l. 2. parag. 3. Dig. ad leg. Rhod. Nay, sometimes the Law will enjoyn a man to pay for that which he had got before. For if three be taken prisoners in war, and one be permitted to go home to procure mony to pay for the ransoming of them all, & a condition added, that if he that is let go returns not, the two that are left behind shall stand ingaged for his ransome as well as for their own; in this case what money soever they lay down for him, he is bound to repay them, though he had gotten his liberty before.l. 21. Dig. de Negoe. gest. For the Law will not suffer a man to be damnified by any act which is done usefully in contemplation of another.

And herein the Law does not so much look upon the success or sequel, as the good will and probable undertaking. And therefore if I should fence or cast a wall about another mans Island to keep it from overflowing, and it is overflown not­withstanding; or if I bestow paines and cost to cure another mans child or servant, and he dies, yet the Law will see me sa­tisfied. Nam sufficit, si utiliter gessi, etsi effectum non habuit ne­gocium, sayes Ʋlpian; l. 10. Dig. de [...] ­negoc. gest. It is sufficient that I did what was to [Page 92]be done, though the intended effect did not ensue.

But here some caution and wariness must be used. For he that thus acteth for another, must be sure that he does no more then he that he acteth for would have done for himself, neither must he expend any more then is profitable and necessary, and he can bear.l. 10. parag 1. Dig eod. Also he must not act after any countermand be once sent him, or that he be once bidden to desist.l uls. Co. eod. For in neither of these cases will the Law help him.

Further, if he be a father, or other of most near relation, that deals for the benefit & in the concernments of such an one, as the Law may possibly presume he does it rather to testifie his natural affection towards him, then to demand any thing of him for the same; I say, if there be any such proximity or nearness, and yet an eye to to future satisfaction, he must declare and make protestation, that it is done with that intent, and not do­nandi animo, not out of any mind to bestow it freely, but to be allowed for the same; else the Law will strike it out upon the score of affection and natural obligation. And so did Alexan­der Severus declare to Mother Hereunia, who when she had fed and maintained at her Table her children, and laid out mo­ney besides for their other uses; when they came of age, she de­manded satisfaction of all from the, but being denied it, she complained to the Emperour, who made her this answer, Ali­menta quidem quae filiis tuis prastitisti, tibi reddi non justa rat [...] ­one postulas; cùm id exigonte materna pietate feceris. Si quid au­tem in rebus eorum utiliter & probabili more impendisti, si non & hoc materna liberalitate sed recipiendi animo fecisse te estende­ris, negociorum gestorum actione id consequi potes; l. 11. Co. eod. Thou hast no just reason to demand payment for that alimony and suste­nance which thou didst afford thy children, for very natural piety did require it of thee. But if thou hast usefully and in a probable hope to advantage them, expended also money about their business; if thou canst make it good that thou didst it not out of a free mind, nor meerly as a Mother, but with an expe­ctation to be reimbursed thereof by thy children, the Law will enforce them to pay it thee back again.

Lastly, he that will voluntarily and of himself, being not com­missioned, act in anothers business, if he intends to ground any demand upon it, he must be sure, not onely to think and intend [Page 93]a benefit or advantage to him whom he is about to serve, but it must be really so. For let him think it never so beneficial, and wish [...]t never so much, yet if it be not so indeed, the loss will be his; and he can challenge no satisfaction for what he does or expendeth. Ʋt enim eventum non spectemus, sayes Ulpian, nego­cium debet utiliter esse coeptum; l 10. parag. 1. Dig. eod. Though we value not the success, yet it is requisite that it should be evidently useful or necessary when it is first undertaken.

Lastly, (not to sail any longer in an Ocean so vast and infi­nite, having given instances enough to measure the rest of the Law by, tanquam ex pede Herculem) though it is the proper work of every Law that is made, to declare to the people what things they ought to do, and from what they must abstain, and wherein they may take their full freedome;Legis virtu [...] est imperare, vetare, permitte­re, punire. l. 7. Dig. de legib. yet no Law has ever done it so fully and perfectly as this has done. For Princes, Rulers, Councellours of State, Judges, subordinate Magistrates, Advocates and Clients, Proctors, Registers and Notaries, Masters of families, Husbands and Wives, Children and Servants, Masters and Scholars, Tutours and Pupils, Mer­chants, Factours, Buyers and Sellers, Letters and Hirers, Bor­rowers and Lenders, Officers and Souldiers, open Enemies as well as allies and Confederates, Embassadours and Nuntios, Conquerours and Conquered, Owners, Masters, and Captains of Ships, Pilots, Mariners and Passengers, Aliens and Natives, Fiduciaries, Mediatours, Substitutes; and lastly, all sorts of people of what age, degree, or condition soever they be, may read their truest duties in this Learning, and be directed how to order and demean themselves aright in their several offices and functions. So that when the learning of this Law is thus uni­versal, running through the several negociations and matters of intercourse between Man and Man, Nation and Nation, and ha­ving a resolution ready for all such questions as arise upon them; and is so rational withall, that its decisions are rather the strong enforcements of reason, then any commands of will; it ought to be no matter of wonder to us, that it has found so much credit and authority with Christian Nations, as to make it the rule to end their greatest Controversies.

The End of the First Book.
…

LEX LEGƲM: OR, THE EXCELLENCY Of the Roman CIVIL LAW, Above all other HUMANE LAWS WHATSOEVER.

The Second Part.

London, Printed for R. Royston, at the Angel in Ivy-Lane. 1656.

LEX LEGUM: OR, THE EXCELLENCY Of the Roman CIVIL LAW, Above all other HUMANE LAVVS WHATSOEVER.

CHAP. I.

That the greatness and splendour of the Roman Empire does evidence the singular vertue of the Law it self, to which, as to its proper cause, it may be ascribed.

ALbeit it be praise sufficient for the Roman Civil Law, that it hath more of natural equity and pure reason in it then any other Law of Man; and that more need not be said, to divert a Nation or people from throwing it out of their Territories, or disesteeming it, then that they may thereby seem to aban­don their own reason, and stifle the very dictates of nature. [Page 98]and even stop up that fountain from whence all their own par­ticular Laws were at first derived (for, lex Romanorum legum omnium Mater nuncapatur, Addit. ad Ca­pitul. Lud. Im­per. ca. 4. in God. leg. Antiqu. the Roman Law is called the Mo­ther of all Laws that have since been made:) Yet because there are many other grounds upon which it may he yet further ex­toll'd and set up above other Laws, I think I cannot spend time and pains better then to set them down, especially when I see every thing is laid hold on to cry that profession down.

And surely if the dispensation of right justice be a principal means to make a State glorious and flourishing, this Law must needs surpass in excellency all other Laws, by how much the Roman State, whch was all along carried on by that Law, did in greatness exceed, and in splendor out-shine all other States and Empires that have yet been. Touching which the Roman story every where gives us to undestand, that the Roman State in process of time grew so large in Dominion and Power, that it spread it self almost over the whole World, there being few Nations which were not brought under its rule and govern­ment and indeed was esteemed the common countrey of all men, and the Center of the whole earth. Tantae erant Romanorum vires, ut Asia, Africa, & maxim Europae parte subactis, iisdem ferme quibus Solis cursus metis, imperium suum finirent, sayes Loccenius; Period. Im­per. lib 4. ca. 5. The potency of the Romans was grown to be such, that Asia, Africa, and the greatest part of Europe being Conquered, the Sun and the Empire did almost run the same race.

It maintained intercourse of Trade, and held correspon­dence with all other Nations, of what sort constitution, and language soever: It was the commonNihil princi­pe dignius, nihil magis optan­dum, quàm dis­sidiorum ac bel­lorum inter po­pules arbitrum eieri; ut olim Senatus Popu­lusque Romanue propter summant virtutis quam de se ipse concitarat epinionem. Bo­din. de rep, lib: [...]. ca. 6. Judge and Umpire to arbitrate the differences of other Princes and people: It was the seat of Learning, and receptacle of all learned men: It con­tinued flourishing many hundreds of years; during all which time it dealt in affairs of the greatest consequence and variety, and did increase in great plenty and abundance of all things; and whatsoever was in any kind rare, curious, or exquisite in any part of the earth besides, it was brought thither. And therefore Athenaeus has not doubted to call Rome in express termes, [...], the Abridgment and Summary [Page 99]of the whole World; as if Rome wanted nothing which all the other parts of the earth afforded; or as if we ought to esteem it Orbem in urbe, the wide World confined in that one City.

In congruity therefore of reason must it be concluded, that a Nation in all other things so much superiour unto others, must also have Laws and rules of conduct proportionable; else could they never have brought to pass so great and glorious things as they did: For by the benefit of wholsome Laws and prudent order is it, that great atchievements are accomplished in a Common-wealth, and such mighty works effected. Here­upon Tully contemplating the Laws of Rome as well as their riches, does declare, tantam sapientiam majoribus suis in jure constituendo fuisse, quanta fuit in his tantis opibus imperii compa­randis; they shewed as great wisdome in framing their Laws, as they did in getting the infinite wealth which their State then had.

And well it is observed and delivered by many later writers, that in the Romane Empire, the greatness thereof is rather to be imputed and ascribed to the wisdome of their Laws and Go­vernment, then to their armes and valour. And although in Ve­getius his opinion, Disciplina militaris acriter retenta principa­tum terrarum Romans imperio peperit, Their strict holding to the rules of Martial discipline made the Romans Masters of the world; yet Sulpitius the Poet will not give it to that onely, for in his judgment,

Duo sunt quibus extulit ingens
Roma caput, virtus belli, & sapientia Pacis.

it was their wise government in peace, as well as their success in war that did so highly advance their City; for what their armes did get, their Laws did keep, according to the saying of Florus, Viribus parantur provinciae, jure retinentur. Thomas Aquinas Lib. 3. de Re­gim. Princip. ca. 5. sayes, that though they got the Empire first by inju­stice, rapine, and bloud-shed, yet they did deserve to hold it and to have it established upon them, for the good Laws they had ordained.

Saint Austin Lib. 5. De civit. Dei ca. 12. designing to set down how it came to pass that God did so exalt and enlarge the Roman Empire, and what actions were the cause thereof, imputes it to their virtues, and to their heroick and gallant mindes; to their prudence and ho­nesty, rather then to their strength and power. For he brings in Cato speaking to the Romans of his own time, that had much degenerated from their Ancestors: Think not, saith he, that our Ancestry brought the City into this height by armes; if it were so, we should make it far more admirable then ever, for we have greater plenty and abundance of men, more confe­derates, a greater store also of armes and horses then they had. But they had other means which we want, industry at home, equity abroad, freedome in consultation, and purity of minds in all men, free from lust and enormity: For these we have gotten riot and avarice, publick beggery and private wealth: riches we praise, and sloth we follow: good and bad are now undistinguished, ambition devouring all the rewards due to ver­tue. Nor wonder at it, when each one patcheth up a private estate; when you serve you lusts at home, and your profit and partiality here in the Senate. This is it that laies the State open to all incursion of others. Again, in the same place he sayes of them, That they were greedy of praise, and bountiful of their purses; they loved glory and wealth honestly gotten; Honour they dearly affected, but through virtue, offering willingly both their lives and their estates for renown. The zealous desire of this one thing made them set aside all other inordinate affecti­ons whatsoever; and hence they desired to keep their Coun­try first in freedome, and then in Soveraignty; because they saw how baseness went with servitude, and glory with do­minion.Amore primi­tùs libertaris, post ctiam de­minationis, & cupiditate laudis & glo iae multa magna [...]cerunt.

And then concludes; Wherefore, saith he, whereas the Mo­narchies of the East had been a long time glorious, Godresol­ved to erect one now in the West also, which although it were after them in time, yet should be before them in greatness and dignity. And this he left in the hands of such men, (which he supposes were not the generality of the people but some few on­ly, but those very good and gallant men) to punish the loud and crying guilt of other Nations. And those men were such, [Page 101]as for honour and dominations sake would have an absolute care of their Country, whence they received this honour; and would not stick to lay down their own lives for their fellows, suppressing covetousness and all other vices onely with the de­sire of honour.Pro isto uno vitio, id est, amore laudis, pecuniae eupidi­tatem, & multa alia vitia cor­rum pentes.

And then in the fifteenth Chapter of the same Book, speaking still of the Romans, and the course they took in the prudent conduct of their affairs, he closeth thus most excellently, His omnibus artibus tanquam vera via nisi sunt ad honores, imperium, gloriam: honorati sunt in omnibus fere gentibus: imperii sui le­ges imposuerunt multis gentibus: hodie (que) literis & historia glorio­si sunt pene in omnibus gentibus. Non est quòd de summi & veri Dei justitia conquerantur; perceperunt mercedem suam; By these Arts as by sure steps they climbed to honour, rule, glory: their name was magnified almost in all Nations; they sent out their Laws to many Nations, and they were obeyed: there is almost no Nation, but their Histories and writings mention them. No reason have they to murmur at the justice of the true and high God; they have had their reward.Terrenam glo­riam excellen­tissimi imperii Deus [...]o [...]e [...]ssit, ut redderetur merces bonis ap­tibus corum, id est, virtutibus, quibus ad tan­tam gloriam pervenire nite­bantur.

Although therefore the Romans in their gallant and heroick minds they bore, did propose to themselves no other end but their temporal honour and earthly greatness, not once think­ing of doing honour to the great God, nor looking towards any heavenly felicity that might follow after this life ended, having not yet been taught or heard of any such thing: yet it must be acknowledg'd that the effects which have flowed from their desire of glory and rule, have been singular and admira­ble; amongst which their 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,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 [Page 102]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,Lib. de caus. corrupt. art. being to draw a Model of a Common-wealth, and Laws to govern it withall, set [...] 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 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 legum (que) perductum longè late (que) 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; 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;Romanitrium pulcberrimarum vir [...]utum, justi­ [...]iae inquam, for­titudin [...], 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 [Page 104]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 Lib. 1. De Ora [...]. 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;l. 2. Dig. De orig. jur. and as much by Justinian himself.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; some of them diminished onely, as to some circumstances; others interpreted, as being very obscure and doubtful; some declared in what cases they shall be of force, and in what not: and others stretch'd to other cases not provided for in express words, but in presumption thereby intended, because so much alike to them that were expressed.

It was a Law of the 12 Tables, Ʋt si quis hostem concitasset, civemve hosti tradidisset, capite poenas lueret; Part. 2. ca. 8. that is, if any shall [Page 105]stir up an enemy, or betray to the enemy any subject, he shall be punished with death. The same Law is cited in l. 3. Dig. Ad l. Jul. Majest. where and in other Law of that Title it is decla­red, it shall be high treason for any man to contrive any mis­chief against the State, either in raising tumults or levying war against the supreme power of it, or even against the enemies of it with out commission; or in holding correspondence with the enemy, or sending any manner of aid unto them, or in help­ing to bring them into the Territories of the Common-wealth, or to betray the army or any part thereof, or any place of strength into the enemies hand, or indeed to surrender it cowardly without fighting when it may be kept, or to plot how publick hostages may escape, or for a General to leave the ar­my without leave obtained, or not to give up his charge to him that by publick appointment is to succeed him, after the State has once discharged him: The punishment whereof is not onely capital, but the memory and name of the offender is to be re­membred no more, his goods are confiscated, and not to go to his own children.L. 5 Co. ed l. Iul. Maject. pa­rag. 1.

Again, by the Law of the 12 Tables it was provided, first, that the custody of such as were mad, and the managing of their estate should be in the hands of the next heir male: Also if any one come to be a prodigal or spend-thrift, the Magistrate first examining the matter, should forbid him the ordering of his own estate, and the administration there of should be in the next heir male.Part. 3. ca. 5, 6. The last of which laws may be found single in l. 1. Dig. De curator. furios. and both of them joyned together Inst. De curator-parag. 3. Where the care of the Law in providing governours for those that are not able to help themselves, nor follow their affairs, is extended to Idiots, to persons that are deaf and dumb, and to such as labour under such an incurable disease as is never like to leave them, and renders them unfit to attend their business, as well as to mad men & prodigals; declaring him to be a prodigal, Qui ne (que) tempus ne (que) finem expensarum habet, sed bona sua dilacerando & dissipando profundit, who wastes without regard either of time or measure; a mad man, qui rabie quadam animi agitur, who is in a violeut fury; an idiot, qui sine tumultu ac clamoribus desipit, who is void of understanding, but never [Page 106]rages. And further, the Law proceedeth in avoiding and dis­anulling all contracts, negotiations and dealings, which such persons shall have made for themselves, after Guardians are once assigned them; yet with this difference, that a Prodigal, or such as have common reason, though otherwise very impo­tent and needing a curator, may contract to advantage them­selves, though not to their loss and hinderance: But such as want capacitie and understanding, can do no good for them­selves.L. 6. Dig. De verb oblig. l. 5. Dig-de reg jur.

And although the Law of the 12 Tables seems to bestow up­on the Guardian of such disabled persons absolute power over their estates, yet the Civil Law will have that understood to reach no further then to the husbanding of their estates for their use and benefit; for it will not permit them to sell, aliene, or mortgage any thing that does belong unto them, except that upon examination of the Magistrate it be found advantageable and fit to be done, and that the Magistrate does expresly make his decree to that purpose. Insomuch as if money be taken up by the Guardian for the need and to the use of any such person, and his land mortgaged for payment of it, yet if it be not done by the license of the Magistrate, the serving of that impotent mans necessity how extreme soever, will not make that mort­gage the more forcible; such care has the Law to preserve the patrimony of such from being pass'd away. Yet since the mo­ney lent was so well imployed, the Law that suffers no man to be enriched with anothers detriment, gives the lender a perso­nal action whereby to recover what he lent.L. 2. Co. de cu­rat. furio [...].

Lastly, does the Civil Law afford more plentiful provision on any subject then that of last Wills and Testaments? Yet the first rise and foundation of all that is written therein, came first from that Law of the 12 Tables; Ʋti quisque rei sui legasset, ita jus esto, Part. 3. ca. 11. that is, As a man shall order by his will in any thing that is his own, so let it be. The very words of which Law are repeated, Inst. De leg. Falcid. in princ. and l. 120. Dig. De verb. signific. But the questions falling under this head, do not onely take up whole titles in the Law, and those very large ones too, but also many of them lie dispersed up and down in all places and parts of the Laws.

So that generally it may be observed, what Laws soever are written almost on any subject, are but as so many explanations or enlargements, made by the old primitive Lawyers, such as Gaius, Scaevola, Papinian, Ʋlpian, Paulus, Affrican, and the rest of those Worthies, and are as it were their Comments on the Law of Nature and of Nations, and upon this Law of the 12 Tables; at first a forreign Law, but brought into the Roman Common-wealth by a common consent of all the people, from such Nations as for rule and government might justly be an example to all their neighbours.

In like manner the Sea Laws that were admitted into the Ro­man State, and incorporated amongst their Laws, were fetch'd from another people, namely the people of Rhodes, Islanders in the Carpathian Sea, bordering upon Caria in Asia, who in re­spect of the mighty concourse of seafaring-men thither, and their continual trade and potency by Sea, grew so expert in the regu­lation of all matters and differences thereto appertaining, and their determinations therein were esteemed so just and equita­ble, that their Laws in such affairs have been held oracles ever since. And therefore Antoninus the Emperour to a complaint that was made unto him by Eudaemon, whose goods had been seized by some publick officers upon a shipwrack, gave him this answer, Ego quidem Mundi Dominus, lex autem Ma­ris. Lege id Rhodia, quae de rebus nauticis praescripta est, judicetur, quatenus ei nulla nostrarum legum adversatur; L. 9. Dig. De lege Rhod. That is, I am the Lord of the world, but the Law is the Empress of the Sea. Let the Rhodian Law which has the regulating of Sea matters decide it, so that none of our own Laws be opposite there­unto.

And generally it was their custome and usage, that whenso­ever they conquered any Nation, they did not onely give them Laws, as conquerours use to do to those whom they subdue, but I may say, they received Laws from them too: For what Laws, practises, or wayes of government they found there or any where else where they came, that were laudable and useful in their State, they carried them home, and there put them in practise; observing them rather with humility, then rejecting them with disdain. Majoribus nostris, saith Salust, as Baldwine [Page 108]quotes him in his Prolegomena, speaking of the Romans; superbia non obstabat, quo minus aliena instituta, si modò proba erant, imi­tarentur. Imitari quàm invidere bonis malebant, & quòd uti (que) apud socios vel hostes idoneum videbatur, cum summo studio domi exequebantur; Our Ancestors were not so high minded, as not to imitate such rules and customes of other Nations as they found to be good, chusing rather to tread in the steps of vertu­ous and well disposed people then to envy them. Therefore what either their allies or enemies afforded that was useful and fitting, they greedily embraced and practised it in their own State.

And if Salust may be thought partial, because a Roman writer, let Polybius speak, that was a Graecian: They were always so wise, saith he, as, [...] to take and apply the best customes of other Nations, to their own use. Athenaeus saith the same, and declares it at large, how from the beginning and first founding of the Common-wealth, they took from others the best points of policy and government.

And so in these Laws of ours we have what all the wisest and noblest men in that Common-wealth (which was the most flou­rishing and potent that ever was in the world) could of them­selves by their wisdome and reason devise, or could learn from other States in about a thousand years; for about so many years it was from the time of the Decemvirate unto Justinians death. Tantae molis erat Romanas condere leges.

From this example of the Romans, who admitted so freely other Laws besides their own, and would rather send about to borrow Laws from others, then want such as were necessary and convenient for themselves, we may learn to esteem it nei­ther shameful nor inconvenient for the people of this Nation, to give such an admittance to the Roman Civil Law here, as the Romans did in their State to the Laws of other Nations: For it must needs draw after it much benefit, and no prejudice, if it be done with these cautions.

First, that it be a free and a voluntary act of our own, and not imposed upon us by a forreign power.

Secondly, that it be admitted meerly to supply the defects of our own Laws, and to have a resolving power in such cases [Page 109]onely, where our own Laws have made no determination at all.

Thirdly, so little to be made use of in opposition to our own municipal Law, as not so much as to be compared with it.

Fourthly, that it be of greatest force in all cases where there is greatest need of equity and a good conscience, whereof there is more to be found in that Law then in any other Law of Man.

Fifthly, that it may order and determine all matters transact­ed and arising upon the Sea, or contracted and done in forreign parts, to which the Laws of the Land are most incongruous, and less satisfactory to those whom they concern, being chiefly strangers and of another Nation.

Lastly, that if at any time the use and exercise thereof should be stretch'd beyond the bounds that are allowed it, it should be penall; but be check'd by such equal and indifferent Umpires, as are parties in neither of both professions: For where an in­crochment is pretended to be made by either Law upon the o­ther, neither seems to be competent enough to judge the diffe­rence, or to condemn the other.

Under these cautions, to admit the use of the Civil Law into this Nation, that in the doing of justice, where our own Laws fail, we may be sure to be supplied by another, is no more then what the Romans themselves, a renowned and wise people, did by the Laws of other Nations, and what other Nations do at this day by the Civil Law it self, which they do practise and use as frequently as they do their own.

CHAP. III.

That time and intervenience of fatal Accidents, that has swept away so many States together with all their Laws, and has quite abolished the Romans State it self, has not yet been of force to abolish the Roman Civil Law, but that it is extant still.

BEsides that this Law was at first derived from such Nations as in their time were renowned for Policy and Wisdome, and was a chief means to convey the Romans to their greatness; this also may be said thereof that can be said of no other hu­mane Law besides, That though it has been never seen that any Law has lasted longer then the State it self for whch it was first ordained, but both have been buried in the same sepulchre to­gether; yet this Law is in being to this very day, after the Ro­man State it self has so long laine intombed in its own ashes. Jus Justiniani praescriptum libris, non Civitatis tantùm est, sed & Gentium & naturae; & aptatum sic est ad naturam univer­sam, ut imperio extincto, ipsum jus diu sepultum surrexerit ta­men, & in omnes se effuderit gentes humanas. Ergo & Principibus stat, etst est privatis conditum à Justiniano, sayes Albericus Gentilis; Lib. 1. De ju. Bell. ca. 3. The Law that is set down in the books of Justinian, is not the Law of one City onely, but is the Law of Nature and Nations; and is so throughout fitted to very Nature it self, that when the Roman Empire was quite extinct, yet the Law of the Empire, after it had lain long as it were buried, sprung up again, and spread it self into all Nations. Therefore now it is become a standing Law to Princes, although made at first by Justinian for the use of private men.

We know for certain, that at the first erecting of Common­weals, when some certain kind of regiment was once approved, nothing was then further thought upon for the manner of go­verning, but all permitted unto their wisdome and discretion, [Page 111]which were to rule; the Princes word, beck, and rule, serving instead of all Laws; who both in time of peace and war, sent out their edicts from time to time, as the present occasion re­quired, all depending upon their full and absolute power, being themselves not bound to any Laws or Customes at all. And that is it, for which Pomponius L. 2. Dig. De Orig. jur. in print. writeth, the Roman Common­weal to have been at the first governed by Regal power, without use of any Laws.

Justin Lib. 2. saith of Athens, that there was a time, when Nullae civitati leges erant, quia libido Regum pro legibus habebatur, that the City was without Law, because the wills of Kings were Laws. And Josephus the Historiographer in his second Book against Appian, desirous to shew the most honourable Anti­quity of the Hebrews, and of their Laws, saith, that Moses of all others was the first that ever writ Laws; and that in five hundred years after, the word Law was never heard of; alledging in proof thereof, that Homer in so many books as were by him written, never useth this word, [...], Law. Bodin de rep. lib. 6. ca. 6. It may there­fore well be told us, that we have no cause to marvail, if we have no Laws at all transmitted unto us from those first times, there being then no certain standing Law any where.

Yet I am sure, afterwards, when all people saw that to live by one mans will became the cause of all mens misery; this did necessitate succeeding ages to come unto Laws established, wherein all men might see their duties before-hand, and know the penalties of transgressing them,Ut bonesterum ac turpium lex aeterna in memi­bus unjuscujus­que nostrum ab immortali Deo sit inscripta, poe­nae tamen qui­bus improbi ab injuriosa facino­rosaque vita avocentur, in animis inscript [...] à Deo nullae fu­erunt. Bodin. de rep. lib. 6. ca. 6. and be more secure against the irregular passions of their Rulers, whom they found by wo­ful experience to be too apt to degenerate into Tyranny. And yet they have not rested here neither, but have committed the same to writing, that their subjects might have them continu­ally before their eyes; and to transmit them to posterity also, lest they that should come after, should vary from those foun­dations on which the State was first laid, and so hasten the downfall of the whole society.

Hence it has come to pass, that the Laws of some certain peo­ple have been more famous then the Laws of others, and the Authours mentioned with high praise and commendation. So­lon, who made Laws for the Athenians, and was accounted one [Page 112]of the seven Sages in Greece, is highly commended for his great wisdome in making Laws both by Aristotle and Plato, who proposeth him and Lycurgus the Lacedaemonian Law-giver, as patterns for all such as shall institute Common-wealths, and de­vise Laws for them. Plato also prayseth the Cretensian Laws, and Isocrates the Laws of Lacedaemon. Zaleucus is upon record too for being a great Law-giver amongst the Locrians: and Charondas has got himself a name for the Laws the Thurians had from him; And so has Zamolxis, Pythagoras his scholar, for the Laws he gave the Getae.

And yet of all these Laws so much extolled and spoken of amongst the Learned, there is not one extant to this day in any entire body; I say, in an entire body, because of the Attick Law some fragments may be found, which the industry of Peti­tus has collected out of several Greek Authours, as Athenaeus, Plato, Plutarch, Demosthenes, and others, where they lay disper­sed; which though they may busie Criticks and those that con­template upon Antiquity, yet are of no use to govern a State by, nor to decide differences that arise in common intercourse. As it is no small wonder then, so does it adde much to the Ho­nour of the Roman Civil Law, that it has not been swept away by that common fate under which these and all other ancient Laws have perished, but is the sole surviving Law at this time. The preservation whereof is the more to be admired, if it be considered, how by the stormes and persecutions of several ages, near it has been to be annihilated and quite supprest, as all other Laws besides it have been. For as the affairs of State have suc­ceeded, and as the Emperours themselves have been vertuously or vitiously inclined, so has it fared with this study and the pro­fessours of it, and indeed after the same manner with all other kind of learning.

Julius Caesar, Augustus, Tiberius, Claudius, Vespasian, Tra­jan, Adrian, Antonius Pius, and Marcus Antoninus the Philo­sopher, Alexander Severus, Constantine, Theodosius, and Ju­stinian, that were Emperours vigilant and industrious for the prosperity and weale of the Empire, and designed nothing with­in themselves but actions of vertue and honour; & well knowing that their true interest lay in the maintaining of the Laws and [Page 113]government, without which all things must needs run hastily in­to disorder and confusion; they had the Lawyers of their times in highest esteem, preferring them to the publick offices of State, both of honour and justice; and admitting them into their secretest and most important counsels, and seldome was any Law made, to which they were not call'd to give their coun­sel and advise: Insomuch as it is written of Alexander Severus, one of the before named Emperours, that he never established any Law without the presence and assistance of twenty of the most renowned Lawyers, and fifty other most judicious and acute men.Baldwin Pro­legom. ju. Givil. Forster bist. ju. civ. lib. 2. ca. 77.

But there were others that sate in the Empire of a far different nature and disposition, who disdaining that their will, how vi­tious and lewd soever, should be circumscribed within the bounds of any Law; and esteeming it a dishonour, that Law­yers, who were but private men, should undertake to advise Prin­ces; or that any thing should be done in State, but what them­selves absolutely commanded; some of them despised the whole Law, and slighted those that taught it; others proceeded so far in cruelty, as to banish some, and to put other Lawyers to death; for so did Nero, Commodus, Caracalla, Heliogabalus, Septimius Severus.

But to persecute and take away their persons did not satisfie the fury of some implacable Emperours, since others did suc­ceed still in their room. Therefore it was thought necessary by some, that the Law it self should be so dispatch'd, as it might be sure it should never renew or rise again.Annae. Robert. rer. judic. lib. 2. ca. 1. Caligula therefore put on a more hardy but a most barbarous resolution, to burn all the books of the Law that were then extant; pretending that equity would run clearer, and justice be quicker, where the niceties and perplexities of the Law were gone. Sed non fuit tam diuturnum ejus imperium, ut efficere potuerit quae medi­tabatur; nec passus est Deus rata esse hujus tyranni impia & rei­publicae perniciosa consilia; But his reign did not endure so long as to execute what he did intend; neither would God suffer the design of this tyrant, that was so detestable in it self, and so de­structive to the Common-wealth, to be brought to pass, sayes Baldwine in his Prolegomena. Notwithstanding how odious [Page 114]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 [Page 115]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 [Page 116]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 [Page 117]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 a new war, where they are sure to be swallowed up in spoil and rapine?

In this declining therefore of the Roman Empire, many Provinces thereof being possessed by several invaders, it is cer­tain that the conquering people gave their own Laws to the conquered, but ruled mostIuxta illud Silii; Vis coli­tur, jurisque lo­cum sibi vendi­cat [...]nsis. by power and arbitrary will. In iis seculis, sayes Dr Duck, Lib. 1. de Au­thor. ju. civ. ca. 7. speaking of the declension of the Roman greatness, non erat aliud parendi dominandive jus quàm armorum potentia, crassa literarum omnium ignorantia, leges omnes barbaricae, Gothicae, Francicae, Lombardicaeve, sepultis jam legibus Romanis, rerum omnium morumque confusio: In those times there was no other rule, but what the sword did give, a gross ignorance of all literature, the Laws all barbarous, had from the Gothes, Francks, Lombards, the Roman Laws lying now in the grave, and indeed a plain confusion of civility, and all things whatsoever. Ludovicus Vives Lib. 1. de caus. corrupt. Art. mentioning the utter downfall that was of all learning at that time, tells us also the politick reason that animated that savage people to deal so tragically with it: Irrisae sunt ab eis linguae ac studiae omnia, saith he; Nec solùm eis detractum est pretium, sed contu­melia addita; seu quòd nollent quenque in victis plus sape­re quàm victorem, & ut quisque esset doctissimus, ita cras­sis illis hominibus inprimis erat suspectus, tanquam vafer & ad fraudes ac dolos maximè appositus; seu quòd emolliri per haec veram virtutem opinarentur, ac minus bello idoneos red­di, cui omnia illi tum tribuebant, laudem, gloriam, decus; ex bello uno verum germanumque, etiam sempiternum oriri rati: They laugh'd at the variety of tongues, and at all li­terature; Neither did they onely distesteem them, but they cast reproches upon them also; either because they were not willing, that any that they had now brought under subjection should be wiser then themselves, who being blockish, did cast a jea­lous eye upon those that were most knowing men as they that [Page 118]were subtil, and fitted for all politick and wily practises: or because they had a conceit, that learning did too much soften and enervate valour, and render men unfit for war, in the which they thought all praise, glory, and renown did lie; and that no where true and immortal honour was to be won, but in war onely.

Which torrent os ruine then happening, was the more unfor­tunate and fatal, in regard through Italy and the Europaean Na­tions being thus infested, that which is the Roman Civil Law now, and was collected and put together by Justinian himself, and doth bear his name (though selected out of a great confu­sed mass, consisting of near two thousand Volumes, that had been 1400 years a laying together by several Lawyers) could not have any place then in Italy, nor could ever get entrance into those parts for 500 years together after the death of Justi­nian: Because this body of the Law that is now extant, was compiled and put together at Constantinople, after the Roman Emperours had removed themselves thither, and kept out of Italy and the Western part of the Empire for all that time that those Barbarians were possessed of the same.

Howbeit it is no less certain, that the ancient Civil Law that was in being long before Justinians time, and that very frame and model thereof which was drawn together and raised out of those ancient foundations by Justinian himself, was the sove­reign and ruling Law at Constantinople and all over the East, where the Roman Empire then was, and was translated into the Greek tongue for the use of the people, and there continued flourishing at that time when the West would not admit it. So that it is to be noted, that when it was driven or kept out, it was by a barbarous people that followed all with fire and sword; and that it did not suffer alone, but all civility and lear­ning was banish'd with it too: and that it was never so extirpa­ted from off the earth, but it had a being and continuance some­where.

And yet there was a part of Italie also, namely the Exar­chate of Ravenna, consisting of ten Cities with the territories belonging to them, which the barbarous people could not sub­due, nor make them change their governours, government, or [Page 119]Lawes; who being still ruled by the Viceroys and Lieutenants of the Constantinopolitan Emperours, were totally governed by the Roman Lawes also as they were before. And after the col­lection of Lawes made by Iustinian was perfected and publish­ed, and was now to be the onely Law for the whole Empire, it was sent to and embraced by the Exarchate of Ravenna, and there practised, though no where else throughout Italie for 500 yeares together.

Notwithstanding, it cannot be truly affirmed neither, that even those parts of Italie which the Romans had quite lost, and were made subject to this barbarous people, were totally guided by another Law, and had none of the Roman Law to guide them.

For, although the Gothes ruled much by Lawes of their own prescribing, yet Cassiodore writes, that in the time of Theodo­rick, and some of his successours, the Roman Law that had been in use there before, was also used still, though but in a way of Subserviency to their own.

And Ataulphus fully purposing Romana omnia ades in Gothi­cum nomen moresque mutare, ut Romanum planè obliteraretur, so to change all that was Roman into the way and fashion of the Gothick Nation, that nothing that was Roman should remain any longer; Mr. Selden out of Orosius Lib. 7. ca. 43. sayes, upon better con­sideration had, he changed his resolution quite, and did by all meanes strive, ut Romanae rostitutionis autor haberetur, postquam esse non poterat immutator, to be the chiefe setter up of the Ro­man policie, which he saw he should not be able to throw down.

For the time therefore that the Gothes and Lombards were possessed of Italie, the Code of Theodosius, and some things taken out of the Gregerian and Hermogenian Codes, and Gajus his Institutions, Vlpians fragments, and the Notes and senten­ces of Paulus, all parts of the Civill Law, and antienter then that body of Lawes whereof Justinian was the compiler, were taken in and admitted into use together with their own Laws. Those Provinces of France that are nearest unto Italy, when the Gothes came to invade them, were also permitted to enjoy the Roman Laws upon the same termes; and especially when [Page 120] Honorìus and Arcadius surrendred Aquitaine, one of the con­ditions was, ut lex testamentorum iis salva esset, that their Laws for ordaining or expounding their last wills should not be in­fringed.

And Alarick the second, one of the Gothish Kings, was so affected towards the Roman Laws, that in the year 506, he employed his own Chancellour Anianus to make a Collection out of the several parts of the Roman Laws, whereof the Theo­dosian Code was the chief, and to write Notes and Expositions upon it; which after he had done, it was published and set forth to be observed as Law in France. And Mr Selden wri­teth,Dissert. ad Flet. ca. 5. parag. 4. that the same King did the like in Spain too as well as in France.

So that albeit ruine, devastation, and violence had buried all that was Roman besides; and for the better and more sure kee­ping of what was gotten, clean another government and ano­ther Law was also setled; yet the Roman Law, either out of necessity, because they saw the hearts of that people so set upon that Law, that they would never have remained quiet or peace­able without it, or out of some good esteeme that such a wilde and barbarous people bore to it themselves, finding it to be so wise, solid, and rational, was still retained in some use in Italy, France, Spain, and in Germany too, as the same Mr Selden af­firmeth, amidst its very enemies; though much diminished, corrected, and controuled by their own supereminent and over­ruling Law. So good a piece of policy, and such a special mark of wisdome was it then accounted, to have two Laws in the same Territory; the one of the Romans for private matters between man and man, for which it was so sufficient, full, and equal; the other of their own, to direct and steer the pub­lick upon all accidents, which they meant should superintend and reign in chief over and above the other.

But further, not onely the use, practise, and observation of the Roman Law has been in danger to be quite lost and wholly set aside, but the very books and writings of the Law have run very hard fates also; ut mirum sit vel has qualescun­que juris Romani reliquias superesse, sayes Baldwine in his Pro­legomena; that it may be admired we have such parcels there­of [Page 121]extant at this day. It was a most unhappy fate, and very worthily lamented by all learned men, that after Justinians composition of the Law was perfected and set forth, with a com­mand, that that onely should be the Law of the Empire, omni­busque antiquioribus quiescentibus, nemoque audeat vel compa­rare eas prioribus, as Justinians own words are;L. 2. Cod. De Veter jur. cuu­cleand. all the old Laws being quite put to silence, nor that any should dare to make comparisons between them; the very Law-books them­selves being 2000 Volumes, as we said before (whereof Justini­ans new work was but a choice Collection, raised out of a con­fused and an indigested heap, and thence put into order) did thereby lie neglected so long, that in process of time, they pe­rished quite, and were never seen more.

Questionless had they been preserved, and transmitted unto posterity entire, they would have acquainted us with much more of the Roman Antiquities then we now know; the Civil Law that we have, would have been much better understood, when we might have gone to the Original from whence it came; and the contradictions now contended about so much, would have been easily reconciled.

The sense of this loss did cast Sabinus Floridus, who charges it upon Justinian, into such an extasie of indignation, that he sayes, Justinian died mad with the consciousness and horrour of suppressing these books, and judges him not worthy ever to have been born. But Franciscus Philelphus goes a strain higher, plainly imprecating in this manner:

O utinam superi, si quid mortalibus usquam
Justitiae reliquum, te, Justiniane, sub imis
Manibus ardenti plectant Phlegetonte jacentem;
Post quàm tanta Italis millena volumina legum
Principe te clades, te principe pest is ademit.

Now though I see not any ground to justifie so much bitterness, nor indeed deservedly to make that renowned Emperour au­thour of such a crime, being especially thought by the most not guilty; yet since those books of Law that are left us, which are but an extract from the other, are of such high price and value; [Page 122]surely when the other perished, there was lost a very great trea­sure.

Again, as there were three Cities famous above all others, for the nourishing and maintaining of the study and learning of the Civil Law, to wit, Rome, Berytus, and Constantinople; In which three Cities onely by a express constitution of Justinian, Digest Pro­aem. parag. 7. it was to be read and taught to others, and no where else throughout the Roman Empire; so it was not possible but the books and writings thereof must be lost and destroyed, as indeed they were, in the direful events of those Cities: For Rome was often spoiled, sack'd, and laid waste, by rude and savage peo­ple, who would not spare books or learning, that they know would detest, condemn, and censure them, and their barbarous actions. B [...]rytus was so utterly swallowed up in an Earthquake, that nothing of the whole City was left above ground. Con­stantinople in Zeno the Emperours time, in the year 478 was al­most wholly destroyed by fire; in which perished, amongst o­things, an hundred and twenty thousand books; and is since fallen into the power and hands of the Turks, professed enemies to civility and learning, the same being taken by Mahomet the Great, in the time of Constantine Palaeogolus the last of the Graecian Emperours, in the year 1452.

Thus has it fared with the very books and writings of the Civil Law; but such has been the providence of the Almighty in pre­serving this necessary piece of learning, that neither any nor all of these disasters have been powerful enough to extinguish it. For although it seemed sometimes to be buried, and no where visible, yet at last by one means or other it was restored and brought to light.

But to none more is the honour of this restitution given, then to the Emperour Lotharius the second, who undertaking a war against Roger King of Sicily and Naples, after he had taken by storm the City of Amalphis in Apulia, he there found the chiefest and most authentick part of the Civil Law, the Digests; which was from thence conveyed to Pisa, and afterwards to Florence, where they have been kept with the greatest care, and had in much veneration and esteem;Mr Selden sayes it is there kept in the Dukes Palace, and is never brought forth but with To c [...]ight and other re­verence, Notes upon Fortej [...]ue ad cap. 17. in tin. and this was in or about the year, 1137. The other parts of Justinians frame and Collecti­on [Page 123]were found at Ravenna about the same time.

These books were no sooner pull'd as it were out of the dust, but by the same Emperours command, they were every where divulged, taught in Schools and Universities up and down the Empire, the barbarous Laws as it were silenced, and these in practise made the rule for all Tribunals.

And indeed the same and reputation of them so spread, all kind of learning reviving with it at the same time, 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; [Page 124]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 [...]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.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 [Page 125]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; 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 [Page 126]should seem to derogate from the Laws of their own countrey, by advancing the Laws of strangers.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 it should not be admitted to teach us true equity and sound reason, their restraining Edicts never have so far prevailed so totally to suppress it, from the time of Lothari­us the second, the first restorer and reestablisher of it, to this present, which is now full 500 years. Plurimùm distat lex à jure, sayes the same Bodine; Jus enim sine jussu ad id quod aequum bonumque est; lex autem a [...] imperantis majestatem perti­net: There is much difference betwixt Right and Law; for Right without any command insinuating it self into the soul of a just man, recommendeth to that which is good and equal; but Law importeth a command of some Sovereigne, which may force and hurry the will to such an action, which in equity or right reason may not be good or laudable. As a Law to bind by its own proper power and vertue, or by any authority of those that made it, the Imperial Law is not admitted in any Na­tion. Yet no Christian Nation with all the express decrees that that they have at any time made against it, has been able to ex­clude it, as it containes veram naturalem rationem, optimum inter omnes leges humanas exemplum, aequitatis normam autho­ritatem prudentum, veram justitiae rationem, artem & scienti­am juris, & ut bonos mores complectitur; they all admit it, as it does propound and hold forth true natural reason, and as it is the most imitable pattern amongst all the Laws of men, the rule of equity, the voice of Sage men, the true method of justice, the art and knowledg of doing right, and as it comprehends in­structions for a moral life: For thus to shut the door against it, [Page 127]were to renounce reason, equity, justice; and to defie all moral goodness.

Thus much may very well suffice to shew how the Roman Civil Law has had the singular honour and prerogative which no other Law has had, to be rescued from that universal deluge of abolition, which hath swept away all other ancient Laws be­sides it, and not onely to o [...]t-live Rome it self, but to out-stand many dangerous assaults and casualties, and divers sharp [...] penal Edicts that have been made against it, and to continue to this very time a large and accomplished body. This surely next to the providence of God who hath so disposed it, must needs be ascribed, and the cause must needs be conceived to be, some especial excellency and rare wisdome that is in the Law it selfe; For else why has not other Laws continued as long, as that has done?

CHAP. IV.

That Forreigne Nations in doing of Right between Man and Man, do mainly practise and make use of the Rules and dictates of the Civil Law.

THat the Roman Civil Law, framed so many hundred years ago, and devised for the use of one Nation onely, is still extant and in being at this day, the state it self being quite extinct; possibly it may not seem commendation and praise suf­ficient, except the use, practise, and observation of it up and down divers great Nations of the World be also shewed. The next thing therefore that we have to say in further praise there­of is, that the greatest and best ordered Nations, though they manage their publick occasions and affaires of State by rules and directions of their own ordaining, having an eye to the nature of their people, way of government, and present exigencies onely; yet in the dispensation of private justice, and in pacify­ing the debates and differences that do arise between their subjects, where meer right and equity onely is considerable, they use and practise the rules and principles of the Civil Law chiefly.

Peculiar Statutes, Ordinances, Customes, and municipal Laws every State has of its own making, which in the regulation of its proper affairs it does prefer before any other Laws or con­stitutions whatsoever, though in reason and convenience they may seem much better. Yet humane occurences are so many in number, and in circumstances so greatly differing one from the other, that no Nation is perfectly supplied with Laws of their own to answer them, but that there is still need of some subsidiary Law, more universal and comprehensive then its own.

And from this ground is it, that most States have entertained the Imperial Law, to supply and assist where their own is defe­ctive; [Page 129]making their study and science of Law to consist in that, but the use and exercise thereof to be restrained and bounded by their own proper Laws, which every Nation requires to have first known, and chiefly to be observed. Wherefore if you tra­vel into their States, and shall ascend up into their Courts and places of Judicature, both Judges and Advocates will be every where found to be all Civilians and Graduates in that faculty; & the proceedings in causes there, to be most after the form and manner of the Civil Law. And when any case comes to be re­solved by final sentence, if there be any proper or peculiar Law of their own Countrey to determine it, judgment passes, as that special Law directeth; but if that be wanting, as commonly it is, presently recourse is had to the Civil Law, and by that is it both pleaded and judged.

Which because it shews the transcendent excellency of this Law, being incident to no other Law besides, and being not throughly enquired into, may seem incredible to many men, it is therefore a point worthy of a strict examination, and fit to be fully cleared and perfectly understood.

For peradventure it may not pass without a wonder, that a Prince or Common-wealth should not be able to manage their rule and government by Laws of their own devising; or that any differences should arise amongst their people, which they knew not how to decide of themselves, but must consult with the oracles of other Nations.

It eclipses, some may think, the Majesty of a State, to have rules prescrib'd to it by others. And since the time that a divi­vision of Kingdomes was first made, and each had their bounds set them, no Potentate, no not the Emperour himself has pre­tended to a power to give Law to any, but to such as have been his subjects by birth, habitation, or conquest. Neither can Lawes be made to regulate the whole World, or to bind all people, sayes Suarez. Lib. 3. de le­gib. ca. 4. nu. 7. & ca. 7. nu. 9. Besides, quae leges Romanis congrue­bant, non omnibus jam congruunt: mutata est ratio vivendi, status rerum mutatus, sayes Ludovicus Vives; De caus. cor­rupt. art. lib. 7. The Laws that were proper for the Romans, suit not so well with others; the manner of living is not now as it then was, the state of affairs is clean changed, climates differ, and the tempers of people differ [Page 130]too; new and strange accidents do frequently arise, which will require new constitutions to settle them; the form of governing is divers in several times & places, the Laws therfore cannot pos­sibly be the same; Monarchical Laws are of no use to a Popular government; and Popular Laws do not fit a Monarchical State: Severe edicts will not suit with a milde and gentle people; and contrariwise, barbarous or untractable natures must not be dealt withall by gentleness or clemency. It may therefore be questi­oned, how the Civil Law that was made so many hundred years ago, and for one single Nation, can be accomodated to other Nations, coming in so long a tract of time after them, and dif­fering from them in habit, language, situation, manners, and form of government.

Besides, to hear of the general use of the Civil Law in forreign parts, is so odious and offensive a thing to some humorous Anti­civilians, that although they be so learned, that they must needs know it to be true, and having travailed abroad must needs have seen it; yet to take away all belief thereof from the peo­ple of this Nation, lest they should look too favourably upon it, they do too frequently suggest in their writings, That in France it has been forbidden under a penalty to read the Civil Law to any publick audience, and those that should hear the same read, were also to undergo the same punishment; And that in Spain to cite the authority of the Civil Law in Court, has been made an offence no less then capital. But they do not add withall (which they know they may as truly) that these sharp edicts lasted not long, but grew out of use very long ago; and that the Civil Law does flourish no where so much as in those two great Monarchies, and so has done for a long time toge­ther; and have both sent forth men as famous and renowned in that profession as in any other; of whom mention shall be made hereafter. For both the study and practice of the Civil Law has been found of such absolute use and necessity, that those States that have been brought upon some pretence of convenience to suppress it, have been glad after some little want thereof to reestablish it and set it up again.

Baldwine in his Prolegomena takes in all Christendome in this particular; Religio Christiana, saith he, probavit retinuitque [Page 131]politicas Romanorum leges, quas aequitate summa subnixas & na­turalium notionum honestati proximas esse videbat; easque reve­rita rita est tanquam Dei dona & beneficia: Christian Religion hath allowed of and kept the Roman Laws, which it saw were groun­ded upon pure equity, and came nearest to natural integrity it self, and hath ever since reverenced them as the gifts of God and blessings bestow'd on Man. Jus Civile Romanorum, sayes Wesenbeck,Parat. Dig: De legib. nu. 9. propter summam aequitatem & prudentiam, jus quasi gentium, & omnium populorum bene institutorum commune est: The Civil Law of the Romans, for its special equity and wisdome, is come to be as it were the Law of Nations and of all well ordered people. Jus Romanum tam aequum est & rationi consentaneum, sayes Molinaeus,Ad consuetud. Paris. Tit. Des fiefs. nu. 110. ut omnium fere Christianarum gentium usu & approbatione commune sit effectum: The Roman Law is so equal and so coming up to reason it self, that by the usage and acceptation of almost all Christian Nations, it is turn'd into a generall and common Law. Hoc jus commune, saith Peckius,Ca. 28. De Reg. jur. in 6. in princip. quod tantis vigiliis excogitatum & inventum est, adeo bonum & aequum semper visum fuit omnibus, ut hi quos Ro­mani imperii leges non tenent, hoc ipsum jus tanquam aequitati naturali maximè consentaneum, libenter sequantur & ubique probent, suasque leges per hoc interpretentur; This common Law, meaning the Roman, invented and wrought out by so hard and so long labour, has alwayes seemed unto all States so good and conscionable, as even those Nations whom the Law of the Ro­man Empire does not oblige at all, do notwithstanding freely follow and approve thereof, as most agreeable to natural equi­ty, and do interpret their own peculiar Laws by them. Parti­cularly for France, Equinaerius Baro Inst. De ju. nat. gent. & Ci­vil. sayes, that, si more sta­tutore regionis aut lege Regiae controversiae dirimi non possint, ad jus Caesareum velut ad [...] Judices regii caeterique laici con­fugiunt; If there be no custome or constitution to determine the controversie, both Judges and people go to the imperiall Law as the best that ever was. And a little after, Jus Roma­num, saith he, commune jus Franci appellant, & interdum abso­lutè jus, vel jus civile, quòd eo jure communiter omnes regiones utantur, ubi pactum, mos, lex regia desideratur; We French­men call the Roman Law the common Law, and sometimes sim­ply [Page 132]the Law, or the Civil Law, because that Law all Nations do commonly use, where agreement, custome, and particular Law is wanting. Annaeus Robertus, Rer Judic. lib. 2. ca. 1. another French Lawyer sayes, that some Provinces in France, either by special privi­ledge, or by grant from their Kings heretofore made do use the Roman Laws; as the Territory of Tholose, and that of Daul­phine, and some others, and these are call'd Provinciae juris scri­pti, the provinces of the written Law: some others, saith he, and indeed the most and best Provinces are governed by unwrit­ten customes; but in the end he adds for the whole Kingdome thus, Civile Romanorum jus in senatu & tribunalibus Franciae citare licet, non quòd Romanis legibus parere necesse habeamus, sed ut aequitatis ratio ex tot clarissimorum & prudentissimorum Juris­consultorum responsis attendi & inspici queat; The Civil Law of the Romans is alledged in the judicatories of France, not that we think our selves bound to them, but that out of the resolu­tions of so many most famous and most prudent Lawyers, the rule of equity might be extracted. For Spain, Fernandus Vas­quius, De succes. cre­at. lib. 3. parag. 26. limitat. 31. nu. 71. one of their own Lawyers, shall give testimony, how the Imperial Law and the Law of their own Nation goes hand in hand conjoyned and link'd together: Jus Civile Hispanorum, saith he, hospitio voluntari recepit jus civile Romanorum: jamque nostrum jus civile Hispanicum & jus civile Romanorum simul pariterque coeunt, licet ex vi jurisdictionis illud recipere nos Hispani non teneremur: The Law of Spain hath given a free admittance to the Roman Law, and now they are as it were united together, albeit there lies no tie of command upon us in Spain to enforce a submission to it.

CHAP. V.

The general admittance and use of the Civil Law in for­reign parts, is acknowledg'd by our selves here in England.

I Shall not travail any further to cite any more forreign testi­mony, to prove that this Law is generally received and pra­ctised by other Nations; and the rather, because Dr Duck in his book, has by variety of proof so sufficiently made it good already. But yet it is worth the setting down, what some of our own Countrey-men have in their writings acknowledg'd to the very same purpose; and those especially amongst the rest, whose interest and high valuation which they pass upon the Laws of their own Countrey, will not permit them to ascribe more to the Civil Law, then the just truth will bear.

And it is most observable, what King James himself, the learnedest of all modern Princes, said here in a Speech made to no less solemn assembly, then his Lords and Commons of Parlia­ment,21. Martii 1609. which we have extant amongst his printed works. ‘As a King, saith he, I have least cause of any man to dislike the Common-Law; for no Law can be more favourable and advantagious for a King, and extendeth further his Preroga­tive, then it doth. And for a King of England to despise the the Common-Law, it is to neglect his own Crown. Yet, saith he, I do greatly esteem the Civil Law, the profession thereof serving more for general learning, and being most necessary for matters of Treaty with all forreign Nations. And I think, that if it should be taken away, it would make an entry to Barbarisme in this Kingdome, and would blemish the ho­nour of England; for it is in a manner lex Gentium, and maintaineth entercourse with all forreign Nations. But I onely allow it to have course here, according to those limits of jurisdiction, which the Common-Law it self doth allow it. [Page 134]And therefore though it be not fit for the general govern­ment of the people here, it doth not follow it should be ex­tinct; no more, then because the Latin tongue is not the mother or radicall Language of any Nation in the World at this time, that therefore the English tongue should onely now be learned in this Kingdome, which were to bring in bar­barisme.’

And in another speech in Star-chamber,20 Iun. 1616. printed also; ‘God forbid, saith he, the Law of Nations (intending thereby chiefly the Civil Law) should be barred in this Kingdome, and that for two causes; one, because it is a Law to satisfie strangers, which will not hold themselves so well satisfied with other municipal Laws; another, to satisfie our own sub­jects in matters of Piracy, Marriage, Wills, and things of like nature.’

And again, when he was so mightily pressing to have had an union of England and Scotland under the same policy of Laws, as they had but one and the same King; in a speech made upon that subject,Ult. Mart. 1607. extant in his printed works, he told his two Houses of Parliament, that in point of conjunction of Nations, the Civil Law ought to bear a great sway, it being the Law of Nations. These are the expressions of a King, the interest of whose Crown and Scepter, and the prerogatives thereunto be­longing did depend upon the favour of another Law; and yet he positively and in down-right termes in the face of all his peo­ple, avows the Civil Law to be the Law of Nations; and that all transactions of Treaty and of Trade with forreign Nations were dispatched by the rule and reason thereof; and that the authority thereof was so great in the esteem of strangers, that they would rest satisfied therewith, when no municipal Law could satisfie them. But in that he avers also, that when the people of England shall exterminate that Law, (which must needs be when the practice thereof is quite taken away or thrust into a poor narrow compass) their honour will be obscured, and they will be in danger to be over-run with barbarisme; it was never so well worth the observing, as at this present time. And it clearly shews, that wise and learned King did perfectly understand the true use of the Civil Law; for as the language [Page 135]thereof must needs be a means to maintain learning, which does civilize & soften the minds of men; so there is no sort of learning with the which the matter of it does not correspond and partici­pate; but above all it does afford more and better rules for civil living and orderly conversation amongst men, and for righte­ous dealing each with other, then any other study or learning whatsoever.

But this practise and usage of the Civil Law in forreign parts is yet better confirmed by the authority of those, who study­ing and professing the Law of England, have been alwayes jealous of the rising and growth of the Civil Law in this Nation. For though they have desired to keep it low here (for what reason I need not mention) yet some of them have freely enough owned, how much it is in use and practise in other Countreys.

Sir Francis Bacon in his Epistle Dedicatory to the Queen, set before his Maximes of Law, after he had told the Queen, that Justinian the Emperour did gloriously, and yet aptly call the Body of the Roman Laws, proprium & sanctissimum templum justitiae consecratum, a true and a most sacred temple consecra­ted unto justice; he sayes, that it is a work of great excellency indeed, as may well appear, in that France, Italy, and Spain, who have long since shaken off the yoke of the Roman Em­pire, do yet nevertheless continue to use the policy of that Law.

My Lord Ellesmere Chancellour of England as Sir Francis Bacon was, in his speech of the Postnati, does expresly deliver, that the Civil Law is taken to be the most universal and general Law in the World.

Sir John Fortescue himselfe, Lord chief Justice of England, and afterwards Lord Chancellour in King Henry the sixth's dayes, in his book, wherein he does so highly magnifie and com­mend the Laws England above the Civil Law, yet he could say,De Laud. le­gum Angliae. ca. 9. That Civiles supra humanas cunctas leges alias fama per orbem extollit gloriosa; The Civil Laws throughout the whole World, are advanced in glory and renown above all other mans Laws.

Fulbeck also, another of the same profession, and of great [Page 136]learning, does agree with the former in these words;In his paral­lel part. 1. E­pistle to the Reader. The Roman Laws, saith he, in the times of Arcadius, Theodosius, and Justinian, recovered their strength; and shining to all the Com­mon-wealths of Europe, as the Sun to all the climates of the Earth, have for their worthiness, and necessary use and em­ployment, received entertainment, countenance, and great re­ward of Emperours, Kings and Princes.

Likewise Mr S [...]lden, a Graduate in the Common-Law, but a great Student in all learning, and one that seems to have sear­ched narrowly into the state of the Civil Law, as it has stood in use and request in other Countreys as well as in England, in all times, in his additional discourse upon Fleta, wholly spent upon that subject, owns the entertainment and use of the Civil Law in the Western Countreys of Europe, that had left to acknowledge the Roman Empire long before. For in that dis­courseCa. 6. parag 4. he hath these words:

Ita jam, id est sub annum 1145, receptus suit Juris Justinia­naei usus, ut quoties interpretandi jura sive vetera sive nova sive ratio sive analogia desideraretur, aut mos aut lex expressior non reperiretur, ad jus illud Justinia [...]aeum tum veluti rationis juridi­cae promptuarium optimum ac ditissimum, tum ut quòd legem in nondum definitis ex ratione seu analogia commodè suppleret, esset recurrendum. Certe ita ferme Rhodiam recepere veteres Romani legem in rebut nauticis, ut etiam apud nos & gentes vicinas leges recipiuntur Oleronianae; cùm interim nec hae nec illae ex authori­tate sui, quà primò conditae sunt vim sic obtinuerint. Atque ut Academiae demùm non paucae aliae per Europam Occidentalem hac in re, quoad studiorum institutionem. Bononiensem; Ita etiam Regna alia & Respublicae imperium Caesarianum quoad usum ju­ris ejusdem aliquem imitatae sunt, retentis semper ac ubique moribus aliâs avitis legibusque sibi, pro varia regiminis cujusque formula, ante conditis, novasque condendi tum libertate tum usu. Neque ullibi pro simplici juris norma in Occidente inde usurpatum est jus illud Caesareum, sea cum temperamentis quae jam diximus: That is, About the year One thousand one hundred fourty five, Justinians Law came to be used in the Westerne part of Europe, in such cases, as either the State had made no special provision at all in them, or that there was no custome to resolve them by: [Page 137]or where in default of both the case that fell out was to be set­led by right and sound reason, or by some other cases that in all circumstances did resemble the matter in question; or lastly, where the local statutes themselves were not so clear, but that they stood in need of interpretation, and were so doubtfully penn'd, that solid reason and a deep judgment was to be made use of to explain them. In all which cases recourse was had to the Law of Justinian, as to the best and richest Treasury of legal reason and equitable knowledge; and which could best supply the want of a peculiar Law either with concludent reason, or with parallelling the case in question with other express cases of the Law, as did exactly suit therewith. Much after the same sort were the Rhodian Laws embraced by the ancient Romans to regulate such matters as fell out at Sea, as the Laws of Ole­ron have been in England, and elsewhere; when as notwith­standing neither the one nor the other have had such a binding power in them, as they had when and where they were first or­dained. And as many Universities at last were guided by that of Bononia (where learning, after it had layen a long time neg­lected, was first revived) in setting up the teaching and read­ing of all kind of literature; so did also other Kingdomes and Common-wealths in some measure make use of the Civil Law, as the Empire did, reserving to themselves such old Laws and Customes, as they had proper to their several formes and wayes of government, and the freedome of making new, which they practised as oft as they had occasion. Neither, saith he, has that Imperial Law been at any time since observed in the Western Countreys for a positive commanding Law, but ever [...]nder the rules and limits before spoken of.

The same Mr Selden also in his Mare Clausum, Lib. 1. ca. 24. although he will have the Europaean Nations to practise divers things ve­ry opposite to the Civil Law, as that there are no Slaves now, [...]r right of personal Postliminiage, as were by the Civil Law; and that goods cast away at sea, do by the customes and ordi­ [...]ances of many Countreys accrue to the Princes themselves, which by the course of the Civil Law were restored back to the [...]wners, or if they claimed not, went to the first occupant; [...]t he commends the Princes of Europe for establishing the use [Page 138]of the Civil Law in their Academies and in their Tribunals so far, as their own peculiar statutes were not contrary there­unto.

I cannot also omit what Mr Selden writes in his Review upon his History of Tythes; Ce. 7. Where though he vehemently de­claimes against the gross ignorance of those, that do not stick to publish here in England commonly, that all other States are governed onely by the Civil Law; and would have such to un­derstand the difference betwixt the use of Laws in study or argu­ment, and the governing authority of them: yet he acknow­ledgeth, that in the Empire and a good part of Itaely, through the power of Emperours and Popes, the authority of the Civil Law doth still continue; and that in Portugal the Roman Civil Law is authorized by an Ordinance of State, in cases which are not literally comprehended in the customes or constitutions of the Kingdome. And as for other Christian States, which ac­knowledge no superiour, or any subjection to the Empire, as France, Spain, Denmark, Poland, the City of Venice, and what also in Germany hath made it self free from the Empire, though as it is Law, he will not have it to binde or rule with them; yet he saith, in all of them, the reason of it brought in­to method, is used and applied commonly to argument, when any of their customes or statutes come in question; because the practisers studied it in the Universities, and had thence their degrees given them. And so the old Imperial Civil Law valet pro ratione, non pro inducto jure; & pro ratione, onely quantum Reges, Dynastae, & Respublicae intra potestatis suae fines valere patiuntur; that is, it is of force as Reason, not as an introdu­ced Law; and no farther as reason, then as Kings, Rulers, and Common-wealths will have it to prevaile within their seve­rall Territories.

And yet the same Mr Selden also saith within very few lines after, that doubtless custome hath made some parts of the Impe­rials to be received for Law in all places, where they have been studied. And albeit he be very vehement in asserting, that ju­stice is administred in every State by its own peculiar Laws, yet he admits also, that the interpretation of those Laws in most places, save England and Ireland, hath of late time been much [Page 139]directed by the reason of the Imperials, and onely by the reason of them, and not by their authority; and that also in case where they are not opposite at all to the special Law of the place, but seem to agree with the Law of Nations or common reason. And he grants moreover, that ever since Frederick Barbarossa's time (which is near 500 years ago) the Civil Law has grown into a common profession in this Westerne World.

CHAP. VI.

The Civilians themselves do not enlarge the use and practise of the Civil Law in forreign parts, fur­ther then Mr Selden himself in his writings grants it to extend.

FRom what has been cited out of Mr Selden, it does appear, that there is as much granted by Mr Selden to the Civil Law, as ever was challenged by any Civilian, or ever ascribed to it by any, or that any can wish to be granted to that profession in any Nation.

He in effect acknowledgeth, that when the use thereof came to be renewed in Europe with other learning, it was found to be so rich a Treasury of reason, judgment, and true natural equity; and so useful for all matters that respected Civil society and government, that by the knowledge and direction of the Civil Law, and the rules and principles thereof they knew how to supply with resolution such cases, as their National Laws had not made any provision at all in; or if they had, but were dark or intricate, this would help to explain and illustrate them; which neither common reason nor any other humane learning would enable them to do. The Universities have therefore since made it their common study, and commonly given [Page 140]degrees in it, and have sent forth the professours thereof into all Tribunals to be the minsters of right and justice there; till now at last it is grown to be a common profession throughout Europe. And though the original authority which it had in the Roman State, is quite worn out, no State being now subject to the Roman Sovereignty; yet Mr Selden does admit it to be entertained for a binding Law by ordinance in some places, that stamp that authority upon it which of it self it hath not; in o­thers usually observed as a Law by custome and practise; but where it passes not for Law neither way, there the reason and wisdome thereof prevailes, and every man suffers himself to be convinced thereby, non vi necessitatis sed vi rationis, not for­cing the will, as a Law does, but as by reason powerfully work­ing upon, and at last controuling the understanding.

Thus far goes Mr Selden himself; and by no Civilian has a greater latitude then this been ever given to the Civil Law. For what King James spake to his Parliament in the year 1609, tou­ching this matter; That there was no Kingdome in the World, not onely Scotland, but not France, nor Spain, nor any other Kingdome governed meerly by the Civil Law, but every one of them hath their own Municipal Laws agreeable to their cu­stomes, as this Kingdome hath the Common-Law; we all unani­mously own to be true.

And what he told them of Scotland in particular, in the year 1607. may be as well and as truly spoken of all the States in Europe. If a man, saith he, plead there, that the Law of the Nation is otherwise, it is a bar to the Civil; and a good Chan­cellour or President will oftentimes repel and put to silence an argument that the Lawyers bring out of the Civil Law, where they have a clear solution in their own Law. So as, saith he, the Civil Law in Scotland is admitted in no other cases, but to supply such cases, wherein the Municipal Law is defective. This is generally reported by others, never questioned by our selves: For we are of opinion, there is no people in the World govern­ed singly by any one kind of Law whatsoever, nor indeed can be; much less can any State be totally governed by the Roman Law, but that there must needs be a superadded and a peculiar Law, especially as to government, suiting with the climate it [Page 141]self, the nature and manners of the people, the fashion and form of publick actions, divers accidents of the time, and sundry other occurrences. Nay, we often see it fall out, that some certain Laws that are specially made for a people, and at their first ordaining are found to be most excellent and very whole­some Laws; yet in process of time through alteration of things, and the very persons themselves for which they were original­ly made, it is as great wisdome and as necessary to change them and quite take them away, as it was at first to devise them. It is no wonder therefore, that divers parts of the Civil Law, that were accommodated to the nature of the Roman people onely, and the usages then in being, should prove incongruous to the men and to the affaires of this present world, which is of a clean different face and nature. For instance:

A Roman subject was not such a supreme moderator amongst his Children, nor such a free disposer of his own estate, as that he could make his Will thereof, as he pleased, preferring one childe, and excluding another, or parting it too unequally amongst them, or gratifying some stranger without remembring any of them.

If therefore a childe were quite left out of his fathers Will, or were especially disinherited, but without any cause mention­ed, or upon such a cause as the Law did not allow of, or if up­on a legal cause, yet not such as was true in fact, the Will was void and null.Wesemb. pa­rat. Dig De li­ber. & posthum. The just portion or share that every child might expect from his father, if he made a Will, and which he could not give from him without lawful cause, was, if there were but four children in all, or under, an equal share in the third part of his whole substance both Land and goods; (for at Civil Law they both came under one reckoning, and went one and the same way without any difference) but if there were more then four children, then a full half of the whole estate was equally shared amongst them all.Novell. De trient. & semist parag. haec nos.

If less was given to any child then this just proportion, or if it were clogg'd with any condition, or time of payment, where­by it could not come presently and freely to him, the Will was not absolutely void,L. omni modo. Co. de inoffic. testam. but a complaint might be brought to restore him to his just and equal share, and to have it presently [Page 142]and absolutely without condition, incumbrance, or day for payment given.L. Quoniam in prior [...]bus. Co. De [...]noffi [...], testam.

But in those Nations and Countreys where the subjects are such free and absolute propietaries of all the estate they have, that they can dispose of the same how they will, even from their own children, and to them in what inequality they will, these tender and indulgent dictates of the Civil Law are useless and unsuitable. Those Titles then and constitutions of the Civil Law, that treat on that subject, Dig. & Co. De lib. & postum. haered. inst. vel exhaered. De exhaered. Lib. De Inoffic. testam. are not capable to receive any practical use or application in those Territories.

Again, the greatest punishment that the Romans inflicted upon simple theft, was to pay four-fold, where the thief was taken in the act it self, or at least seen and cried out upon be­fore he got out of sight,Cuiac lib. 11. obs. 58. or if otherwise the theft was not so manifest, to pay double the value of that which he stole, and the reparation was made onely to the party damnified. And if there were divers persons taken or discovered to be actors of one and the same theft, they all underwent but one and the same penalty amongst them, yet either of them might be sued for the whole.L. 21. parag. 9. Dig. de furt.

But by the Civil Law it is not onely theft, privily to take and carry away something that is anothers with an intent to defraud him of it; but it is a theft also, when one that has lent money upon a Pawn does employ the pawn to any private use of his own; or when one that is intrusted with the safe keeping of any thing for me, does use or wear it himself; or when one has bor­rowed a thing of me for a certain use, and he does otherwise im­ploy it, or for a certain time, and he detains it longer, or carries it whither he should not, and further then he promised to do.L. Si pignore. 54. Dig. De furt. parag. fur­tum autem. Inst. De oblig. quae ex delict.

Howbeit, though Justinian will not have any theft punished with the loss of life or member,Novell. r 34. ca. fin. vers. pro furto autem. yet he leaves High-way-men, and breakers into houses, and pyrates at sea, to be cha­stised by death;Ca. Ult. No. 134. l. Dig. ad l. Cornel. de ficar. for such acts as these are accounted more then theft by the Civil Law. And for want of ability to make pecuniary reparation, he will have all thieves punished at the Judges discretion,L. ult. Dig. de furt. l. 1. parag. generaliter. Dig. de poen. corporally not capitally. Surely then in a [Page 143]case of simple theft it were very improper to bring into argu­ment, or to cite any Text of the Civil Law De furtis, in any State or Countrey, when theft is look'd upon rather as a pub­lick crime, then as a private injury, and is punished with death it self, without any satisfaction made to the party.

Likewise Slavery, as it was under the Romans, not well sui­ting with Christian Religion (which looks upon all men alike, proceeding from one common parent, and created for one and the same end) is in all Christian Nations worn out and abolish­ed. Because it seems to be against Christian charity and that brotherly communion which we stand obliged by to one ano­ther, to exercise such an absolute dominion over any, that na­ture and religion has made our equals.

Those hard and severe Laws of servitude therefore, which were in use amongst the Romans, whereby slaves were excluded from the participation of any civil right whatsoever,L. 32. Dig. de reg. ju. and could not so much as marry, nor have any estate of their own, nor bring any action or complaint in their own name, but as to civil communion were accounted as plainly dead;L. 209. Dig. de reg. jur. wanting in a Christian Common-wealth that subject matter for which they were first ordained, they must needs fail also of their use and vi­gour, and be esteemed incongruous and improper there.

These and such like instances do shew, that the Law of a Na­tion must necessarily be fitted to the government of it, and to the disposition of the people, and such affairs as they use to deal in; and that it is not possible, that the Civil Law alone without they help of a peculiar Law proper to each Nation, should be sufficient to steer and carry on all the affairs of every Nation, so differing from, and as I may say, directly opposite to the Roman. But what are a few instances of Laws abrogated, or out of use, and that sometimes but in part neither, and which chiefly refer to publick Government, to a whole Body of ju­stice, both distributive, and commutative, which that Law com­prehends, and takes in?

CHAP. VII.

No Municipal Law is sufficient to meet with the multitude and variety of cases and questions that will happen at Land, at Sea, and in forreign parts: Which has caused so many Nations to make use of the Civil Law, where it is proper and pertinent to their affairs, to joyn with and help their own; rather then to be without any Law at all, and to be subject to the mischiefs of arbi­trariness, folly, and violence.

IT is the practise of the whole world to adhere and stand to the dictates of their own Laws, and in no case to admit of any other Rule, either of Civil Law, or acutest reason against that which their own National Laws have declared and direct­ed to be done.Nec judicibus contra leges ju­dicare, nec de le­gibus in republi­ca probatis ac susceptis dispu­tare fas est. Bo­din. de rep. lib. 1. ca. 10. in fin. But then it is visible to every discerning eye, that the Laws that are made, are oft times drawn so short, and put into such obscure and ambiguous termes, that it is but re­quisite some other Law or rule should be found out to supply, clear, and explain them. And every where the body of the Muni­cipal constitutions appears so narrow and slender, and compre­hends so little, that the number of cases that are expresly re­solved by Law, is not by many degrees comparable to the num­ber of those, that do frequently and almost daily happen, wherein the Law of the Nation has not made any decision at all.

Sir John Davis in his Preface to the Irish Reports, does not stick to acknowledge this to be most true in the Municipal Law of England, though in his praises of it he sets it above all the Laws of the World besides. For, saith he, if the Rules and Maximes of the Law were a thousand times as many as they be indeed, yet would they carry no proportion with the infinite diversitie of mens actions, and of other accidents, which make the cases that are to be decided by the Law. How great need is there therefore to keep the Civil Law in England still, that out of its [Page 145]store and plenty it may be instrumental to resolve those doubts and questions of right, which as yet have no special Law of the Nation made for them?

Indeed as the humours and inclinations of men do differ, and their occasions are divers, and the ends they pursue, various, and the way and course they take to obtain them, not the same; so is it impossible, that the actions that proceed from them, should be like and uniform, but must needs, as their causes are, be various and disagreeing: From whence it happens, that eve­ry day produces such accidents, as though they be not wholly new, yet they come accompanied with one circumstance or other, that makes them differ from all that went before them. Besides, Nature it self brings forth some variety of contingents without any act of man.

All which being of several natures, and differently circum­stantiated from what is past or could be thought of, though they do too frequently happen and intermix with the affaires of men, yet to supply them with a direct peculiar Law, or any other express and determinate rule to settle them, is an enter­prize that was never undertaken by the wisest Law-givers that have been;Legislator non potest omnia de­clarare, quia res in quibus versa­tur, sunt prope­modùm infinitae; & quia in hac vita mortali ni­hil est perfectum; & propter ingenii imbecil­litatem non pos­sumus cuncta rimari. Mantie. de tacit. & am­big convent. lib. 1. Tit. 15. nu. 19. nor can possibly be effected by any society of men whatsoever. For it cannot be understood, how such things can be the subject of any established Law or rule, that cannot be foreseen, neither what, nor when, nor how they will come to pass. Hae varietates infinitae nullis legibus, nullis tabulis, nullis Pandectis, nulla librorum quaentumvis immensa mole ac multitu­dine capiuntur, sayes Bodinus; De rcp. lib. 6. ca. 6. These infinite varieties can in no Laws, no Tables, no Pandects, no Books, be they never so ma­ny or so voluminous, be all of them contained or comprehended. And again,Ibidem. Non magis legibus singula contineri possunt, quàm infinitum quiddam & immensum ab eo quod finibus exiguis, ac veluti cancellis angustissimis conclusum est, sayes the same Bodi­nus; No easier is it to collect all the several cases into one book of Laws, then to comprehend that which is in greatness infinite, in that which lies in a most narrow compass, and is as it were in straitest bounds shut up. And yet since there is a necessity of setling such various and so unlike contingencies, some rational way or rule must be found out whereby to compose and settle [Page 146]them, left they should be made subject to meer will and plea­sure, or in default of better means, men interested therein should be left to right themselves by forcible and violent wayes.

It is no less evident and manifest, that whilest we have to deal with forreign States, as ordinarily we do in the way of trade and commerce, and too frequently in the way of War too, que­stions and controversies without number do arise, some whereof do concern & reflect upon the States themselves, as being of pub­lick concernment; others be of a more private nature, and do concern the interest of some subjects onely. But when such con­troversies of either kind do happen, is there any Municipal Law capable to decide them? should we not as much disdain to be judg'd by the Law of France, or Spain, when we have to do with them, as they would to be over-ruled by ours, when they have to do with us? Nay, should we not abandon the society of such a Nation, that should tie us to their own Laws, in matters that are transacted and done out of their proper Territorie, as happily upon the open Sea, or in the Territory of another Prince and people? Of what force or power can a Law be to those who are not subject to the authority of those that make itUbi cessat ju­risdictio statu­entium, statuti dispositio non obtinet. l. fin. Dig. de jurisd. omn. Iudic. l. r. Co. De susp. fut.? And yet when we fall into their hands, and controversies are moved against us in their Tribunals, we must inevitably stand to and abide their justice, and the like they owe to ours: But then right must be done by such rules and principles, as both sides may be fully satisfied in the equity of them.

Here therefore does appear the true use of the Civil Law, and the ground whereupon all Nations have admitted it into their Courts and acts of justice: For although it cannot be said, that there is no case which is not contained in the Roman Law: Neque leges neque senatusconsulta ita scribi possunt, ut omnes casus qui quandoque inciderint, comprehendan­tur; sed sufficit, & ea quae plerunque accidunt, contineri; sayes the Civil Law it self:L. 10. Dig. De legib. Neither Laws nor results of Council can be so sufficiently framed, as to provide for all cases that shall happen hereafter; but it may suffice, if such cases be pro­vided for, as in contingency are most familiar and common: yet such is the copiousness of that Law, beyond any that has yet been; and such a wonderful enlargement has been made [Page 147]thereof by the professours of it in all ages ever since, as cases and accidents of all sorts and natures, and in all Countreys, have happened from time to time, from study, argument, and the several resolutions of forreign Courts applied thereunto, and all upon the reason and equity of that Law which was written by the Romans; that now it may be justly thought, no case can fall out or accident arise, which the learning of that pro­fession thus polished and perfected, either in express termes, or by parity of reason, will not determine. Wherefore it is upon just reason, and likewise upon necessity too, that so many Na­tions have recourse to the wisdome and fulness of that Law thus amplified, as oft as their own particular constitutions fail them.

And although there are a sort of men in the world (who indeed have some good natural abilities in them, as a ready apprehen­sion, a quick wit, a holding memory, and a smooth elocution, but were never brought up either in Law or any learning) yet they do much presume upon that ordinary and common understand­ing which they have, that they think, or at least they would have the World believe so, whereby they may be thought worthy of the best places of Judicature, that they can by the strength of their poor illiterate reason resolve all questions and doubts of Law whatsoever, whether they arise at Land or at Sea; be they of publick concernment or of private; entrenching upon our own Law, or touching upon the Law of Nations; be the case between Prince and people; subject and stranger; one State and another; clear in Law or ambiguous; setled by express constitution, or left undecided; yet their capacity, as they would have it conceived, without any such help as the Civil Law, does suffice for all.

And yet when these presumptuous and high conceited men do sit to judge and administer right on such matters, they quick­ly find what they would not before believe, or at least not have believed by others, that their understanding is too narrow to comprehend such difficult things, and their insufficiency to be too great to determine them: and are therefore driven to consult with the learned of that profession, to whose skill it does belong, not without some shame to themselves. And it were [Page 148]to be wished, that the onely effect of such mens ambition and confidence might rest there, and that it did no greater mischief. But it commonly falls out to be fatal to the interest of many, which is taken away or prejudiced by their errour & ignorance: and sometime States also are embroyled in war and hostility each against other by their unskilful managery; Ignorantia judicis plerunque est calamit as innocentis, fayes St Austin; De Civit. Dei. lib. 19. ca. 6. the igno­rance of the Judge is frequently the woe of those that are inno­cent.

And indeed though it be nothing else but reason, that does render a man capable and fitting to discuss and pronounce upon such questions, yet it is not the vulgar & common reason that na­ture does bestow upon every man; but it is that reason which is gotten by art and study of the Law and of the rules & principles of justice, and which is improved and inlightned by a continual use, and a long experience, and which in truth is to be found no where but in students, practisers and Judges of the Civil Law onely.

And yet there has been a strong conceit, taken up but lately, but yet very hotly pursued, to have the same take effect, by solliciting the state to make a Law to that purpose; that a cer­tain number of old experienced Merchants are much fitter and better enabled to sit upon the trial and examination of matters of forreign trade and negociation, and of business arising upon or beyond the Sea, then any students, graduats, or practisers in the Civil Law whatsoever; supposing, that if the Court of Ad­miralty were turned into a Court of Merchants, both subjects and strangers would be better satisfied, and trade go on and thrive much better.

Which project some Merchants have been the more embol­dened to set on foot, because they once prevailed so far, as to get an Act of Parliament to be made in the fourty third year of Queen Elizabeth, whereby all controversies that should from thenceforth arise upon any assurances made of any goods, mer­chandizes, ships, and things adventured, are committed to the hearing and trial of so many Judges, whereof the Civilians are fewest, and the Merchants make the greatest number. They would have it conceived, that none has understanding or skill [Page 149]enough to judge of the my sterie of their employment but them­selves onely; and that it is equity and a good conscience, in a most summary and a compendious way, and not the intricate and long Maeanders of the Law, that is the fittest to arbitrate and decide their differences; crying out for a quick dispatch, that their voyages to Sea may not be obstructed. They are jealous withall, that the profession of the Law is but a design to en­rich a company of men with the vexations and spoiles of others; grudging, that there should be a distinct profession made of the Law, which secures themselves and all they have, when every Trade and Handicraft hath the like.

In which suggestions if there could be imagined to be any either truth or soundness, yet since the same may be made by o­ther trades and professions as well as by the Merchants; it would argue, that there were by the State too great care had of them, and too little had of others, to assign the Merchants onely Judges out of their own order, and not to grant the same privi­ledg to other Tradesmen also. And yet to make a peculiar pro­vision general, and to erect so many Tribunals as there are Trades and callings, was never as yet accustomed or put in pra­ctise by any Nation.

The Romans would not admit any Barterers or Traffiquers into the Camp, or to any place of honour in the Civil Govern­mentL. 12. Co. De Cohortat. 1. vinc. Co. Negociat. ne Militent. Paulus L. 44. Dig. De aedilit edict. gives the reason; Id genus hominum, saith he, ad lucrum potius vel turpiter faciendum pronius est; That sort of men are disposed to gain, and unrighteous dealing. Saint Chrysostome sayes no less, as Gratian cites him, ca. ejiciens. Di­stinct. 88. Mercator sine mendacio & perjurio esse non potest; No Merchant can subsist without lying and perjury. And De­mosthenes Orat: pro Phormione. makes it a miracle, si idem mercator industrius vide­atur & probus; if that man that is sedulous and intent upon Merchandizing, can be an honest man. And therefore the Thebans would not suffer any man to bear any honourable of­fice in their Common-wealth, that had not quite given over Merchandizing for the space of ten years.Arist. Polit. lib. 3. ca. 3. in fin. Surely their fear was, that when those kind of men studied and endeavoured nothing else but amassing of wealth and getting of riches, the Tribunal; if they sate there, might become a Mart, and justice be exposed to sale.

Besides, it is most frequent and ordinary for a number of Merchants to joyn in copartnership together, and to employ one common and joynt stock beyond the Seas, and yet few of the copartners known or taken notice of; so that it may happen, that a Merchant, that sits on the judgment seat, may be deep­ly concerned in the case in question, and be judge in his own case, and yet his interest not seen or discerned.

Again, there is such a spirit of opposition reigns between the Merchant and the Mariner, who is as useful and serviceable at sea as the Merchant can possibly pretend to be, that if the Merchant should sit to judge the Mariner, in time, the com­pany of poor Mariners might be so severely dealt with, and kept with such short wages by the Merchant, at whose pleasure and command he is, that he will not care to serve, and so naviga­tion may be quite lost.

Nay further, the controversies in the Admiralty are not be­tween our own Merchants onely, but many times between our own and other Merchants of forreign Nations. Whereby, if ours were Judges, there would be given into their hands a great advantage to help and gratifie those of their own Countrey and rank, and to oppress strangers.

Moreover, what affinity is there between buying and selling, (which is the onely skill of the Merchant) and judging of the nature and right of contracts, injuries, debts, agreements, of­fences, and other accidents and emergencies happening upon the Sea or in forreign parts, which they so covet to gain unto themselves? Which knowledge and faculty is not to be found in the depth of the Ocean, nor to be obtained by Travail, but is gotten by serious contemplation and a long study, and per­fected by the practise of a mans whole life.

I write not this to debase the true worth nor to lessen the re­pute of Merchants. They are a people that enrich the Nation as well as themselves; and for the dangers they run through, both personal and real, they deserve to have the highest immu­nities conferred on them. But let them keep within their own sphear, and not aspire to such a function, which neither their breeding, capacity, or parts does enable them unto, nor their employment gives them leisure to discharge.Robert Rer. judicat. lib. 2. ca. 16. And therefore [Page 151]upon a solemn debate, whether Merchants should be joyned to Civilians to try such matters, it was denied, and judg'd against in France, in the year 1584.

Besides, that it should be thought that men (whose know­ledge of the Law and skill to do right and justice is no greater, then bare nature and their illiterate education has affoorded them) should be able to do it quicker, and at less charge to those that seek it, then those that have made it their whole stu­dy and employment, is to me an imagination strange and be­yond belief; for unquestionably the skilful and expert Judge, that by his study and practise is accustomed to such business, as he does best understand it, so he must needs soonest dispatch it also. Because custome and knowledge hath made all things of that nature obvious and easie to him; and such a judge will not allow any thing to be spoken impertinently and beside the matter in question; and so a multitude of business goes off quickest under him, and both delay and much charge is avoid­ed. But when they come to judge thereof, who never medi­tated or dealt in such things, it must needs be, that they must run into many impertinent questions, and that they must toyle and perplex themselves to understand the true point in issue; meeting every where with knots and difficulties, and scarce any thing that is easie & clear to them; wherby they cannot without long and frequent debates and much time spent resolve any case in question. And though it be rightly decided in the end, which it is twenty to one if it be, and is an act of chance rather then judgment; yet in a multitude of other business, before any comes to be judg'd, the attendance, I am sure, is most tedious, and the charge intollerable: so that to put the Maritime and forreign affairs to be judg'd by Merchants, is to augment delay and charge, rather then to lessen either.

In like manner, those that study and profess onely the Law of their own Countrey, (which as I said before, is commonly but of narrow extent, and serves but for a few particular occasions onely) may be as justly deemed incapable to judge and sit upon triall of such matters (though they do concern the dispensing of Law and justice too) wherein the Municipal Law is silent, and has made no provision at all; or peradventure is not capable [Page 152]to make any determination in them; as when they fall out up­on the main and open Sea, or in a forreign State, or are contro­versies arising between two several Nations, or their subjects, to which no Municipal Law can be applied. In brief, where the Laws stand distinct, and the professions thereof distinct also, the exercise of them ought not to be confounded by the ones thrusting into the others function and calling. And therefore much less reason have they to prohibit the Civilians, who have the knowledge, the triall of those cases; and assume it to them­selves who have it not.

Hereupon therefore we say it is, that though every Nation has Laws and Statutes of their own, proper for their affairs and people, and those within their several confines, so far as they do prescribe, have the preeminence above any other Law or reason in the world, as has been said before: Yet there is no forreign Nation in the World, that has a distinct study and pro­fession of the Municipal Law of the Nation, apart and divided from the Roman Civil Law: neither are there any where else students and professours of any Municipal Law distinctly so cal­led and dignified, as there are in England. But the study and profession of Law that is to be found in the other parts of the World, and is serviceable for the government of the Civil State, is the study and profession of the Roman Civil Law onely.

All which, and whatsoever else we shall say hereafter to the same purpose, we would have understood as humble proposals onely, to be considered of in order to a future settlement which we hope and long for. But if the Authority of this Nation (who best can judge what is fittest for the people, and what suits best with the present Government) shall in the end commit and dispose of those Trials which formerly did belong to the pro­fession of the Civil Law, into the hands of others, that do not partake of that excellent knowledge; it does behove all per­sons to sit down satisfied therewith, and to submit unto it, with­out any murmuring or disputing; for I do greatly approve of that golden saying of the Civil Law.L [...] 3. Co. De crim sacrileg. Disputare de principali judicio non oportet. Sacrilegii enim instar est, dubitare an is dig­nus sit quem Imperator elegerit; No man ought to question that which the supreme Magistrate has once decided. For it is a [Page 153]kind of sacriledg, to doubt of that persons merit, whom the highest magistrate by his immediate election has thought fit to dignifie.

CHAP. VIII.

The reasons are strong and weighty, upon which so many forreign States do direct and order the bu­siness of their Tribunals most by the praescript, reason, and equity of the Civil Law.

IT is from the Roman Civil Law that the students in forreign Nations do derive their first principles of Law and justice, and in this are all publick Lectures read and degrees taken, and not in any Municipal Law.

Yet it is true, that before they practise or sit in places of Ju­dicature, they read and throughly inform themselves in the Laws of their own Countrey; by which, where there is posi­tive and express constitution in the point, their pleadings and judgments must be directed wholly. But in cases where there is none, as the cases be but few where there is, in comparison of those where there is not; or where that which is, is either in sense ambiguous, or in words obscure, and must be interpre­ted; or where no Municipal Law can be of any force or use at all, as in the cases above specified, there they generally make the Civil Law, or the reason thereof, their onely rule and guide, to administer right and justice by both to their own people, and to forreigners also.

To this they are led by divers necessary and most important reasons.

First, for them to do so, is but answerable to their education, as they are all Civilians, and to those principles which their learning hath ingrafted in them: For since they have been bred and disciplined under it, it is no wonder if their judgments and [Page 154]results be steered by it: it being natural, that waters should have the true relish of the fountain from whence they flow. And therefore when the learned of that profession sate in di­vers Judicatories of England, distribution of justice was ever af­ter the same rules in such cases, wherein no special Law was, or could be made to guide them.

Secondly, it cannot be devised, how such cases as neither the Law nor the custome of the place has specially provided in, can be well understood, and receive a true and right judgment, with­out the help of that profession. All other learning besides that is taken up in the consideration of things that are clean of ano­ther nature; and does not consider what dealings there are be­tween man and man, subjects and forreigners; and what ju­stice and equity does require in each of them, as that ex­actly doth.

As for vulgar and common reason, it is of use in matters that are obvious to sense, and to the first apprehension, and which are ministerial to the maintaining of life and livelyhood. But where the discursive faculty must be employed, and great reasoning and a long experience is required, as in the things we now speak of, ordinary reason, if we presume upon it, will sooner lead us into errour, then be any advantage towards a solid and right judgment. Nay, so unable are the common ca­pacities to discern and judge of them, that it is usual for the Judges of the Law themselves to be at a stand, and to spend some time in study and counsel, ere they can resolve some questions that do arise; so intricate and perplexed are they.

Thirdly, it is the nature and practice of all States and people, besides their own proper Laws, to use such as are common to all other Nations and men, and so no strange thing to cherish two Laws in one Common-wealth, as some do too vainly ima­gine. Omnes populi, qui legibus & moribus reguntur, partim suo proprio, partim communi omnium hominum jure utuntur, sayes Gaius: L. 9. Dig. De just. & jur. and Justinian: Parag. 1. Inst. Deju. nat. gent. & civ. All people that are guided by any Law or custome at all, are guided by a Law common to others, as well as by that that is peculiar to themselves; for if the Law of a Nation be not universal enough (as indeed none is) but that in the ministration of justice there will every day arise [Page 155]such questions, which the particular Law has not touch'd upon; if there be not some other Law to flie to, there must necessari­ly ensue either a failer of justice as to those cases, which would draw on a self-revenge; or else the setling them must be arbi­trary and at will, which a people will not long endure.

Besides, there is no Nation in the World, that abounds with all things. There is no people so well fortified, but that they may stand in need of the assistance of others, either in matter of commerce, or to joyn in opposing a common enemy, who watches to destroy them both. When as therefore the implo­ring of this forreign help, or the transportation of our native commodities to those that can supply us with theirs, which we have not, drives us to a necessity of dealing with other people; it is substantially needfull also to order such dealings by, to have some Law or rules generally known, and unquestionably just to both.

There being therefore a necessity of another Law, besides the particular Law of each Countrey, the Civil Law has been chosen by most forreign States, because it has from the time of the Romans run through all Nations, and has been so gene­rally applauded and allowed of by all, that now at last it has purchased to it self the honour to be styled, Jus Gentium, the Law of Nations, or jus commune, the common Law of all Europe, because it hath more in it of the Law of Nature, that is com­mon to all mankind, then any other Law of Man.

Fourthly, the Civil Law is of such large extent, and so vast a comprehension, that nothing can fall out, wherein the mini­stration of Law, equity, or any part of justice may be necessary, which either the words of that Law, or the reason thereof will not decide: For indeed the Romans, through the Universal power they had over a great part of the World, and their con­versing several wayes with the rest, were brought acquainted with the nature and state of all Humane affairs of what kind so­ever.

Fifthly, it provides not for the welfare and interest of one Nation onely, as a particular Law does, but contemplates and takes care for the general affairs of all people: For it treats of all manner of differences arising between one State and another, [Page 156]of the Laws of war and articles of peace, of leagues, truces, re­prizals, rights and priviledges of Embassadours, and redemp­tion of prisoners; of precedencies due to Princes; of the free­dome of trade to forreigners, and of the restraint thereof upon just and weighty reasons; of the free and common use of the Sea, and how it may be interdicted or limited; of all contracts in and about shipping or transportation; of da­mages or injuries done at Sea; of Customes, Wrecks, Pyra­cies, Salvage, or contribution; of assurances made upon ships or goods; of the carrying of Armes, Money, or Men, to fur­nish or strengthen our enemies; of the conditions given for the surrendring besieged places, by whom they may be effectually made, and how far they may be extended; whether change of governour and government can dissolve amity, friendship and respect between us and other States. These and such like are matters of concernment to other States as well as to our selves, and are not medled with by Municipal Laws, but fall under the learning of the Civil Law onely; whereby it must needs be ac­counted a most noble and usefull science, the profit thereof be­ing not confin'd to one Territory, but communicable to the whole society of Men.

Sixthly, the precepts and rules of this Law are but the di­ctates of natural reason, and which command the assent and approbation of the most judicious, when first propounded. And so satisfactory and convincing is the justice thereof both to subjects and strangers of other Nations, that it silenceth the complaints of those, who are thereby condemned, their own reason and consciousness concurring in that condemnation.

Seventhly, it is the use of the Civil Law that holds up the entercourse and correspondence of nations each with other; for where the rules of judging controversies, as oft as they do arise, are certainly known and allowed of, there any Prince or people will be strongly invited to Trade, make Leagues, inter­marry, send their Embassadours, and communicate all other offices of love and friendship whatsoever: because they know what dealing they shall have from them, and what justice to ex­pect at their hands. But where illud justum est quod est utile, that is, where advantage does rather set the rule for justice then [Page 157]right reason; or where it must be administred by prescriptions of their own devising, which none can discern any equity or reason in, nor understand but themselves, such a Nation must make much of themselves, and be contented to subsist of what they have of their own; for no other Prince or people will ad­venture to deal or correspond with them.

Eighthly, those that are the composers of this Law, in the ordaining thereof had not, as is usuall in the making of other Laws, the advantages of State in their eye, nor the honour and greatness of those that had the government, nor any meerly po­litick considerations whatsoever; much lesse did they look at the particular benefit of any private men. But as in publick mat­ters salus populi was suprema lex, so in private, quod aequum bo­num (que) fuit, was that which made up the Law with them; the dis­pensation of true right and pure equity was thought the most effectuall means to preserve the whole. And hence it is, that the sincere equity of the Roman Civil Law has been owned, and the wisdome of it greatly admired by those, to whom the exi­gencies of the Roman State, and the interest of the Rulers of it could not be known.

Ninthly, this Law is so well tempered, and so indifferently composed, that it may be accommodated to any kind or form of government; so that be the Supreme power in one, or be it in few, or be it in the whole people, it is equally useful for them all: for Rome came under all these severall formes of go­vernment, and some part of the Civil Law was made under each of them.

Lastly, Triall, that is the true Touchstone of Laws as of all things else whatsoever, has exalted it above all other Laws of Man. First, in the general use of it every where about the World. Secondly, in the continuance of it to this present time, after the State and Government of Rome has long ago ceased to be, and against all stormes and tempests that have come. Thirdly, in that all States and Common-wealths have exceedingly flourish­ed, that have made use thereof.

And yet we are not such vain exalters of our own pro­fession, as to think, or boast, that the Civil Law has the force or property of a Law within it, so as to prescribe to or bind forreign Nations.Leges non alle­gantur in curiis Principum aut regum pro au­thoritate, sed prorationc sui. Jas. in l. 19. co. de Collat. nu. 10. Non quia sunt leges Imperato­rum; sed quia sunt naturales & bonae; non quia lex hoc di­cat, sed quia Ra­tio sic vult. Bald. in l. 13. co. De sent. & interloc. omn. judic. But we rather say, by any authority [Page 158]of its own, it commands and necessitates no where, and yet (as reason must alwayes prevaile with men that are rational) it in­formes, illuminates, and perswades every where. We say this further, that though in matters of publick government the Mu­nicipal Law [...]ears sway, and is practised altogether in every Na­tion: for those must be managed by such prudent wayes and means, as the supreme Governours from time to time shall think most necessary; without being tied up to any certain rules even of their own, much less to any of the Roman Empire: yet in private controversial things, arising between man and man, some special matters of more publick and general concernment excepted, the Civil Law is much more practised and more fre­quently used, then the Municipal. Because in respect of the great variety and multitude of such cases, the Municipal Law can declare but little that is certain in them: So that though we cannot say, that forreign States are governed by the Civil Law, yet the suits and differences their subjects have one with another, are for the most part judg'd and ended by it. But the admittance of the Civil Law in these cases, how general so­ever they be, is voluntary and free, without either necessity or constraint.

And we do so little think, that the want of a compulsive and binding power does in any part obscure the lustre of it, as in our judgments that very consideration does commend it much more, and makes the merit of it much more conspicuous and splendid; for to be awed by an imposed Law, argues the supe­riority of the power that imposes it, and the servility and subje­ction of the people that are under it, but no worth and excellency in the Law it selfe: for peradventure if they were left to their full freedome, they would chuse to live under some more natural and more reasonable Law. But when a Prince and people shall of their own accord without direction or command from any other, freely embrace a Law, and desire to be tried and judg'd thereby (as forreign States do by the Ci­vil Law) it is an evident token, that this free assuming of such a Law, proceeds from some known singular vertue and rare good­ness that is in it; for else they would not, being at liberty, be so unanimously guided and directed by the same.

CHAP. IX.

The admittance and sway of the Civil Law in forreign parts, is yet further verified by the testimonies of Sir Tho. Smith, and Dr Hakewill, the one a States­man, the other a famous learned Divine of our own, and by some other remarkable institutions within this Nation.

I Have before told you, what a great and renowned King of this Nation, and five great Sages of the National Law have said concerning the fame and practise of the Civil Law in for­reign Nations. I connot pass by what Sir Tho. Smith, a most famous Scholar and States-man of this Nation, and one who in Queen Elizabeths time went Embassadour to the King of France, and so had the opportunity to know more of this mat­ter then those that sit at home, has written obiter to the very same purpose, in his book De Republica Anglorum. Wherein after he has delineated and set forth the true state of the policy and forme of government within this Common-wealth, and wherein the Laws thereof do greatly differ from that, which other States do observe and follow, in his third book, ca. 11. he closes in this manner. Administrationis & Politiae Anglica­nae formam quasi in tabula breviter vobis ad intuendum proposui; Quid suum habeat, quiàque ab aliis rebuspublicis, Gallorum, Ita­lorum, Hispanorum, Germanorum, diversum, quae civilibus legibus Romanorum in Pandectas & Codicem à Justiniano redactis reguntur, enarravi. The form of Policy and government of England, saith he, I have as it were in a Map briefly set down before you to be seen, what it has proper to it self, and what differing from other Common-wealths, to wit, of France, Ita­ly, Spain, Germany, which, saith he, are swayed by those Civil Laws of the Romans, that Justinian did put into the Di­gests and the Code, I have likewise shewed you.

The testimony also of Dr Hakewill, a great Divine of this Countrey also, is as full to the same matter; for in his learn­ned Apologie of the power and providence of God,Lib. 3. ca. 7. sect. 3. he does not onely rank the Civil Law next to the Law of God, but also avows the professours thereof in some forreign parts to be gene­rally better scholars then their Divines; and the Lawyers of this last age to be much more able in their learning and skill, then the Lawyers of former ages have been. Of the which he will have the reason to be, the great sway, interest and employ­ment, which they have had in the Judicial Courts of Christen­dome, that has given them such encouragement. Next Gods Laws, saith he, those of the Empire seem to challenge their place; howbeit with us, having neither that reward nor em­ployment as they deserve, they have lost both their rank and dignity: but in forreign parts, where they are cherished and honoured, they marvellously flourish; insomuch as in some trans­marine Kingdomes their Lawyers are held, and for the most part are undoubtedly more sufficient Scholars they their Di­vines; and within this last Centenary, much more sufficient then the writers and professours of the same faculty in many precedent ages, as well in that part which is professed in Schools, as the practick expressed in judgments and pleadings. Now for the latter part, which is the practick, saith he, it may easily be evidenced to any who will be pleased to look into it, that by the observations, experience, paines, and learning of the Lawyers of those latter ages, it is grown to much more ex­actness and perfection then former ages had. Which appears by the judgments, decisions, arrests, and pleadings of the high­est Courts of the greatest part of the Christian Nations, which are extant in great numbers; as the Decisions of the several Rotes of Italy, at Rome, at Naples, at Florence, at Genoa, at Bononia, at Mantua, and Perusium, and the rest: the judg­ments of the Imperial Chamber at Spire, which is the last re­sort of the German Nation; and the arrests of the several Courts of Parliament in France, as Paris, Aiz, Burdeaux, Gre­noble, and the rest. To which may be added the pleadings of Monsieur Servine, the French Kings Advocate, and others of that nature, which are all published and extant, partly in Latin, [Page 161]and partly in their own Languages, with that variety and learn­ing, as much exceeds the former ages.

But to pass from what is observed by our own Countrey-men in this particular, is not there an ancient institution of England, that does clearly demonstrate the same thing? for if we were not sure that the Civil Law did pass for currant, and were ge­nerally embraced in forreign parts, why should we alwayes to this very day observe to try and decide all differences, that arise between our own Countrey-men and Strangers either upon or beyond the Sea, in the Court of Admiralty; where the pro­ceedings are onely after the forme of the Civil Law? And were it not to please forreigners in the Law they like and allow of, we might when we had them here, strictly hold them to our own Laws. But since we must trade and traffick with them, it were no indifferency to call them from the trial of that Law which they in some part know, and is the Law of their Coun­trey, as themselves make it, to the trial of a Law which they know in no part, and is meer forreign unto them.

Likewise, if the Treaties that we have had with forreign Princes were surveyed, it would be found, that they run in the language, and are transacted by the skill and knowledge of the same Law. It is evident therefore, that it is used and accepted of every where upon and beyond the seas; since that where we deal with strangers most, and have most variance with them, there it is most used even amongst our selves:

And to the same ground and reason does Mr Selden in his discourse upon Fleta Ca. 8. parag. 4. impute it, that the practise of the Civil Law has been continued alwayes in the Marshals Court here in England, where divers causes might arise, that might concern strangers; as also in the Judiciall Courts in both Universities, where strangers for study sake do fre­quently come to settle: though for my part I cannot think, that the Universities use it for any other reason, then for the pure natural equity and sound reason that is in it above all the Laws in the World besides; nor for any other end, then that young men trained up and made expert in that profession, when they come abroad, might be more ready in all matters of ne­gotiation and commerce, that the Prince or State should in [Page 162]their dealing with forreign Nations have occasion to use them in, when ever they were call'd to any such imployment; to which the Laws of this Land serve nothing at all.

It is needless in so clear a matter to offer any further proof to convince our Countrey-men, that all their neighbours beyond the Seas (that are nevertheless wise, rich, and potent) do suf­fer themselves to be judg'd and directed by the Civil Law and the professours of it. I shall therefore as touching this par­ticular add but two things, which in my judgment are very well worth the observation.

The first is, that Justinians Code (which is a collection of the Emperours Laws onely, from the dayes of Adrian unto the age of Justinian himself) is in use even amongst the Turkes.Stephan. Pro­oe [...]n. in Novel. nu. 64. In order to which it was, as Mr Selden saith in his discourse upon Fleta; Ca. 5. parag. 5. that Mahomet the second, but the first Emperour of the Turkes so called, when he had won Constantinople from the Christians, he commanded Maximus the Patriarch with other books to translate also into Arabick [...], that is, the Imperial Codes, which was done; in futu­rum, ut videtur, Mahumedici imperii usum, sayes Mr Selden; that is, to be useful for the Turkish Empire.

The second is, that even in the territory of the Church, where the patrimony and the jurisdiction of the Popes lieth, this Law has in some cases an interest of guidance in the Tribunals there too. And yet if the precious worth that is in it, did not cap­tivate them, there are not forcible and weighty reasons want­ing to make them abhor and decline the same: For,

First, some of the Christian Roman Emperours, as Constan­tine, Theodosius, Martian, and Justinian, did ordaine divers Laws for the ordering of Church-matters and Church-men; which since the Popes look'd upon as an usurpation, and an in­croachment upon their spiritual jurisdiction, Temporal Princes being the disposers of temporal things onely, as they suppose, and not to meddle with spiritual; it might well beget in them an animosity and dislike against the Law it self.

Secondly, the Church has a large Law of their own, the Ca­non Law; and so large, that it may be thought sufficient to set a rule to all that Churches affairs whatsoever, and need not bor­row help from any other Laws.

Thirdly, there has alwayes been as it were an emulous con­tention, which of these two Laws should be the most potent, and spread furthest in the Christian World.

Fourthly, the Popes in these latter ages have not stuck to make open protestation, that the Pontificial dignity was rather to give Laws to the Emperours, then receive any from them.

And are not these, if there were no other, grounds enough to make them tender how they admitted the Civil Law into their Territories? yet such has been the power and force of that Law, that it has got footing even in that Spiritual Monarchy; for where sin against God comes not to be restrained, or puni­shed, nor the soul and conscience disciplined in order to its spi­ritual welfare (which was the main end of ordaining the Canon Law) but that the case is meerly temporal and worldly, and not decided by the Canon Law, there the Civil Law gives the rule even in the Popes dominions; non visua, sayes Suarez, De legib. lib. 3. ca. 8. nu. 3. sed quia Pontifices ita voluerunt, not that it has any authorita­tive power there inherent in it self, but as the Popes have freely entertained the same. Nay, Marantae in his Speculum, Part. 3. nu. 76. adds further, and he cites Feline, a great Canonist for it; That if the Canon Law has declared it self in the case, but is too strict and rigid, and the Civil Law be more fair and equitable, the Civil Law shall be rather followed in that case, even in the Churches territory, then the Canon Law it self.

And indeed setting aside some few special differences be­tween the Civil Law and the Canon as to some particulars, the Canon Law is nothing else but the Civil Law applied to the use of the Church and Church matters. And such a conformity there is between them, that Rebuffus De Nominat. quaest. 5. nu. 14. Ca. 15. De sent. & re judi [...]. sayes, the Canon Law is but Medulla legum & practica juris civilis; the marrow and substance of the Civil Law, and the practical application of it to cases in fact arising. And Cuiacius plainly averreth, that the Canon Law fere omnia sumpsit ex jure Civili, & omnino quic­quid praeclarum est in hoc jure, ex jure Civili est, nec hujus inter­pres idoneus quisquam, nisi sit juris Civilis peritissimus; it is al­most wholly taken out of the Civil, but undoubtedly whatso­ever is excellent in it, it has borrowed from the Civil Law, nei­ther can any one throughly understand the Canon Law, that is not first perfectly skill'd in the Civil.

This is not so truly averred of the Canon Law, but the same may be as justly affirmed of the particular Law of every Nation that is any thing famous either for Laws or Government. For undoubtedly, the best governed Nations have wrote their Laws by the copy of the Roman, and the Civil Law has been the Womb that has born and brought forth all of them; neither can they judiciously clear the obscure meaning & doubtful sense of their own Laws, without they make use of the learning of the Civil Law, from whence they sprang originally, for a help to interpret them. And therefore which of them soever does cast out of their Territories the Civil Law, they do plainly put out the light of their own Laws, and do abandon and exile that Mo­ther, of which their own Laws, for so much as is good in them, are but the off-spring; since by the testimony of Claudian De laudib. Stilicon, lib. 3. Rome was,

Armorum legum (que) parens, quae fundit in omnes
Imperium, primi (que) dedit cunabula Juris.

CHAP. X.

The general name of Jus Civile, The Civil Law, is sig­nally for Honours sake peculiarly ascribed to the Ro­man Civil Law, and to no other Law.

AMongst other notes and characters of Honour, that Nations have bestowed upon the Roman Law, this is not the least; That it bears to this very day that name and style, which not only distinguishes it from the Laws of other Nations, but in a way of eminency extols and sets it above them all: for although from that which every City, Countrey, or Na­tion does observe for their binding Law, is derived that particu­lar appellation of the Civil Law of that particular place; as the Municipal Law of England, France, or Spain, may be called The Civil Law of England, France, or Spain: yet he that is to mention [Page 165]the Municipal Law of any one Countrey or Nation, besides the Roman, if he would express it by the name of the Civil Law, he will not be understood, except he adds the proper name of that Countrey too, whereof he intends to speak.

But the common use of speaking still to this very day obser­ved by the best and greatest Nations, is clean otherwise, as oft as mention is to be made of the Law of the Roman State; for albe­it you may call it, The Civil Law of the Romans, yet does it pass currently under the simple denomination of The Civil Law; and you are intended to speak of that peculiar Law, though you do not subjoyn the proper name of that state or people. Justinian the Roman Emperour did first enact it as a Law and as a binding direction to the Roman people; Quoties non addimus nomen, cujus sit civitatis, nostrum jus significamus; Parag. 2. Inst. De ju. nat. gent. & civ. As often as we say, The Civil Law, and do not add the name of any City to which it does belong, we mean our own Law. But now it is become the voluntary and free language of such people as are not subject to the Imperial Laws.

And it is a sure token of a superlative excellency, when a ge­neral appellation that is common to all things of the same rank and quality, is specially and by common consent bestowed upon one peculiar thing of the same kind. What was the reason that Rome was call'd, The City, when there was such a multi­tude of Cities besides it, but because none came near it in power, greatness, riches, or magnificence? Or that Aristotle, when there were so many known Philosophers besides, should be sig­nally named, The Philosopher, but because the rest knew not the true essence of things so well as he, nor had dived so deeply into the secrets of nature as he had done? Or that Virgil should be styled the Poet amongst the Latines, and Homer amongst the Greeks, amidst so many other Poets contemporary with and a great many others since succeeding them, but because they two far exceeded them all? Or that Solomon should be termed, The Wise man, and St Paul, The Apostle, when certainly wisdome was to be found in others, and in a great propor­tion too, as well as in Solomon; and Saint Paul was but one of twelve Apostles, but because the Wisdome of Solomon did surpass the wisdome of all men under the Sun, and Saint Paul [Page 166]was thought to be more inspired, and to have greater gifts and endowments given him, then other Apostles had? In like man­ner and upon the same ground is it, that although every Na­tion that is brought under rule and government, and is not bar­barous, has a certain peculiar Civil Law, under which it lives and is governed; yet out of a general belief, that no other hu­mane Law whatsoever is to be compared with the Roman Law, does it still, as anciently it did, carry away the name and title of, The Civil Law, from them all, as being the exactest and perfectest of all other Laws in the World besides.

CHAP. XI.

The Art and knowledge of doing the purest right and most natural justice, is laid down in the books of the Civil Law; and how it came by degrees to that per­fection, that now we see it in.

THe Roman Civil Law has not the praeeminence of other Laws in title and denomination onely, but it is thought also, that in the books thereof there are laid up such treasures of humane Wisdome, Policy, Justice, Equity, and natural Rea­son, that the art of doing equal justice, and the doctrine of true and uncorrupted right is taught by them onely. Jus, said Celsus,Lib. 1 Dig. De just. & ju. est ars aequi & boni; Law is an art informing what is just and good: And Jurisprudentia, said the Emperour,Parag. 1. Inst. e [...]d. est rerum divinarum atque bumanarum notitia, justi atque injusti scientia; The science of the Law teaches what is the right both in Holy and Worldly things, and what is just and unjust; both speaking of the Roman Law: so was it accounted then, and no otherwise is it accounted now too. For,

Whereas the learned of the world do reckon upon three supreme Arts and Sciences, Divinity, Law, and Physick, which do so mainly support and hold up the whole frame of Man, that [Page 167]without them this goodly linke of things here below must needs dissolve and fall away to nothing; by the Art of Law, it is far from their meaning to comprehend the Municipal Law of any Nation, which is fitted for the climate of one people onely, and serves for the exigencies and occasions of the State, and varies as times and occasions, and the dispositions of the men do vary; which commands rather then teaches; which has an eye more to what is profitable to the publick, then what is just and equi­table; and which deals more in the great advantages of State, then in setling private interests, or composing differences be­tween man and man: (for this is the true state of the locall constitutions of the several and respective Nations and King­domes of the World; each of them being far short of deciding those many doubts and questions, that must needs happen in great variety between their subjects, whilest they trade and deal together.) But they understand some more Universal Law, that is commonly embraced and allowed of by the best and most potent Nations; that is full of pure equity and true reason, and being grounded upon dictates of nature and common reason, is unchangeable; whose method is to teach and instruct by certain rules and principles orderly and handsomly digested, as well as to command and order; and which amongst the frequent and various dealings of men, does leave few cases that can happen undecided.

And it is evident, that by this Art of Law, they intend no other but the Roman Civil Law: for although the Laws have been a making almost ever since Rome was first built, and were ordained as questions did arise from time to time, and under se­veral forms of government; Rome being sometimes under the rule of one, sometimes of more, and sometimes of the whole people; and grew at last to an infinite multitude, and lay in a confused and indigested heap, void of all order or method: Yet at last Justinian, when he came to the Empire, did set upon that opus desperatum, as he calls it in his Prooeme to the Insti­tutes, that desperate enterprize of disposing them into that admirable order that now we see them in; and indeed was the first that laid the foundation for the building up of the Art and Science of Laws.

By his means it was, that after the best and most usefull Laws were selected and chosen out of a vast and tumultuous heap, they were distributed into Titles, and the Titles into Books, every Title contains those Laws that are proper and pertinent to that principal subject whereof that Title treateth; sometimes by definition opening the true state and nature of it; sometimes if it be various, dividing it into its several kinds and branches: also subjoyning a resolution of the several cases and questions that come under it, rather by the still voice of right reason, and as all men by their natural instinct, and practical experience would agree to determine them, then by sovereign command or imperial will.

After this method is that principal part of the Law the Digests, otherwise called the Pandects composed; which Duarenus cals the Magazine and Store-house of all equity, justice, and learning, and the artificial framing thereof Cuiacius Parat. Dig. Mandat. does so much admire, that he judges them to be fools and illiterate, and not to under­stand, neither what Art is, nor what the principles of Law are, nor how well the Pandects are made, that should require any other Art then what is to be found in them. Tully, sayes Alciat, had long and sollicitous thoughts, de jure Civili in artem redigendo, of making an Art of the Civil Law; but Justinian in the Digests hath done that work.

But to make this science of the Law yet perfecter, Justinian hath also added his book of Institutions, for no other end, but, as himself testifies, ut sint totius legitimae scientiae prima elementa, the introduction to the whole Law, they being indeed the summe and substance of it: and he directs it, cupidae legum juventuti, to those that shall desire to enter upon that study; intending it as a help to the younger students onely, whereby they might be enabled after the reading thereof, the better to undertake the more difficult and voluminous books of the Law: for he consi­dering, that the other volumes of the Law would prove too hard and tedious for young beginners, and so it might come to pass, that the whole study of the Law might be quite laid aside, and utterly perish for want of some to study the same, he command­ed this little book of Institutions to be made, whereby young men might be invited partly with the briefness, and partly with [Page 169]the easiness thereof, to the study and profession of it. Here then is a great body of Law orderly and methodically disposed, and a book of praeliminary Institutions also, to make the entrance into it easier and more beneficial.

But there are two Volumes more of this Law also, the one collected by Justinian as the Digests were, and that's the Code; the other ordained by him, as the Institutions were, and that's the Authenticks, otherwise called the Novell Constitutions: for the first is but a bare collection of such decisions, as the Em­perours that had sate in the Roman Empire even to Justinians time had made to the questions that had been propounded to them, sometimes by Judges, and sometimes by private persons, as in contingency they fell; and are ranked in the same order and method as the Digests are. In the Authenticks there is not that order observed in the disposition of Laws as is either in the Di­gests, or the Code, but as occasion was offered of any doubt, wherein the Princes resolution was necessary to every thing, so it is set down without any other method or form. And they were call'd the Novels, because they were new Laws, compa­red to the Laws of the Digests, Institutions, or the Code; and sometimes they alter and correct the Laws of the other three.

Thus far went Justinian himself in his design of a general survey and disposure of the Roman Laws; sometimes ordaining Laws of his own, and sometimes gathering together the Laws of others, till he had made an exact and absolute composition. Which enterprise that renowned scholar and Statesman of our Countrey Sir Francis Bacon does so much commend and ad­mire, in his Epistle to Queen Elizabeth, set before his book of Maxims of Law, that when he understood, that she had the like purpose in her breast, to enter into a general amendment of the state of her Laws, and to reduce them to more brevity and certainty; he saith, it struck him with great admiration, when he heard it; and acknowledges it to be one of the most chosen works, and of highest merit and beneficence towards the subject, that ever entred into the mind of any King; but ad­deth, that there be rare presidents of it in government, as it cometh to pass in things so excellent, there being no president [Page 170]full in view but that of Justinian, as he confesseth. Whose work is the more to be admired, because the use thereof is not local, nor restrained to the state and policy of one Nation one­ly, as hers would have been, but may serve for the use and bene­fit of any state or people whatsoever, and is subservient to all accidents and occasions that can happen in common inter­course, and inded has for its object such things, as commonly arise every where throughout the World, and have no Muni­cipal or customary Law to determine them.

But if Justinian should be thought to have failed in any thing of bringing this Art to a full perfection, yet what the learned of Christendome from his time downward to this present, has done towards the perfecting thereof, will make it up: for the infinite number of writers of all sorts, of all Nations, and in all ages, that have wrote hereupon, are prodigious to behold, and wonderful to consider.

What Glosses, Notes, Lectures, Repetitions, Commenta­ries, Paratitles, Analyses, Intellects, are there upon the very Laws themselves? There is hardly any Text of Law that is not copiously written on, either in stating the true reading of it, or in clearing it from obscurity, or in enlarging upon the matter of it. Then as to the general subjects of the Law, and the par­ticular cases and questions that fall under them, both specula­tive and practicall, the Tractats, Discourses, Counsels, Que­stions, Reports, common Opinions, Controversies, Resolutions, Practices, Observations, and Singulars, are without number.

Even this latter age of ours, besides all that which foregoing antiquity has produced, has brought forth every where in all Countreys of renown so many famous writers in this kind, that every Nation has seemed to be at an emulous contention each with other, which should most excel in such men.

For France, are reckoned Cuiacius, Brissonius, Molinaeus, Antonie Faber, Peter Faber, Rebuffus, Bodinus, Tholosanus, Gothofred, Choppinus, Bellonus, Papo, Charondas, Hottoman, all of high account in that faculty.

For Spain, there are famous to this day, Covarruvias, Ge­mezius, Vasquius, Alvarez, Gregorie Lopez, Bernardus Diaz, Villagut, Pinellus, Franciscus Salgado de Somoza, Sarmientus, Rodericus Suarez, Johannes Lupus.

For Italy, Gabrìel Romanus, Stiaticus, Asinius, Cephalus, Gigas, Gratus, Palaeotus, Peregrinus, Bossius, Balbus, Pute­us, Farinacius, Mascard, Zunt, Surdus, Vincentius de Fran­chis, Mozzius, Sfortia Oddos.

From Germany came forth not without much estimation and honour, Gail, Wesenbeck, Minsinger, Schneidwine, Peckius, Hopperus, Raevardus, Vulteius, Thomingius, Althusius, Si­chardus, Freigius, Pacius, Forsterus, Melchier Kling.

Every one of these has left such writings behind him in the Civil Law, as will makes their memories immortal. Neither can it be any wonder, that the Civil Law it self, and the books thereof are grown so voluminous and almost infinite. Because indeed that Science does comprehend that vast and great variety of affairs and worldly business, that the large Nation of the Ro­mans dealt in during the long continuance of that great and large Empire. And since have been added unto it, and squa­red as it were by the rule thereof, and applied unto it, the af­fairs of many Nations, which must in all changes and accidents, and in each Nation be many, various, and several from the time of the Empire down to this present. Which being seve­rally writ upon, by several fancies, and in several wayes and methods, must needs produce throughout the World large and copious writings in this faculty, as it has in all other Arts and Sciences besides. But the benefit that the world reaps thereby, lies in this, that there neither is or can be any contract made, or any human affair transacted, either Domestick, Civil, or Military, either between governours and governed, or between the people themselves one with another, or between Nation and Nation, either upon sea or upon land, but by the help of that study and the writings thereof, there may be found most ratio­nal rules and directions; sometimes to discern the true nature of the thing it self; sometimes to discern its kinds; sometimes to resolve the doubts and questions that fall under it; some­times to justifie it as wholly good and lawful; and sometimes to condemn it as altogether unjust and evil. And if the action be not uniform, but various, and may be in some cases good and in others evil, it will distinguish upon the several cases; that dealers may walk securely and safely, if they will guide their [Page 172]actions by the prescript of that Law, where the Laws and customes of their own Countrey doe not direct them other­wise.

No part of this pains has been taken or honour done by the learned of forreign States to the Municipal Law of any Na­tion, besides the Roman; for although every State may won­derfully affect and be delighted with their own Laws, and so it may come to pass, that they may be greatly extoll'd and set up, and sometimes with much industry and great benefit to the sub­jects interpreted, explained, and writ upon by the writings of their own Countrey-men; yet are they of so little esteem and account with forreigners, that they almost disdain to read them. But where any have imployed their pens in writing upon a Law of another Nation, no one example can be given, but in the Civil Law onely; which has busied and set on work the learned of the whole World.

Therefore, what high applause soever may be given to the local constitutions of any people (as questionless they are all useful within their proper territories) yet it is a truth unquesti­onable, that in the account of other Nations, whatsoever the case or question be; be it between their own subjects, so that their own National Laws and customes do not specially order it; or be it between them and other Princes, or their subjects, the Civil Law is the straitest rule and the best guide to decide it by; and the art and skill to dispense equal right and exact justice to all men, is to be learnt from the study of no other Law of mans creation but that Law onely. Nihil aliud est jus Civile, quàm sententiae quaedam à veteribus Jurisconsultis pronunciatae, quae in certum redactae ordinem, dijudicandi rationem nostris Jurispe­ritis ostendunt, says Machiavell himself in his Prooem to his books de republica The Civil Law is nothing more then certain dictates or principles declared by the ancient lawyers (undoubtedly mea­ning Papinian, Ʋlpian, Scaevola, Africanus, Pomponius, Neratins, Celsus, Marcianus, and the rest, whose names are prefixed before their several Laws in the Digest) which being put into good or­der, do instruct others in the wayes of administring right and justice. And hence is it, that in all the Universities through­out the World, I will not except England, the Law that is stu­died, [Page 173]the Law that is publickly read and taught in their Schools, the Law wherein degrees are taken, is the Civil Laws.

CHAP. XII.

An Answer to the main Objections that are now adayes made against the continuance of the Civil Law with­in this Nation.

THese things that have been thus truly delivered to the praise and commendation of the Civil Law, being clear and evident, our Adversaries the Anticivilians will not so vain­ly contend, as to oppose them, or to detract from the worth of that learning, which has been so generally owned by all the World, nor was ever brought into any question, since it was first propagated and made known to other Na­tions besides the Roman. They will, as they must, admit and acknowledge, that the Civil Law doth more abound with natural reason and equity, then any other Law of mans esta­blishing; that it has spread further into the World, then any Law ever did; and has been more studied and adorn­ed with the writings of the learned of all Nations and langua­ges, then any Law that yet has been; that the profession thereof is of so large a compass, that it takes in and treats of all the affairs, contracts, and dealings of the World; that Princes freely entertain it into their Judicatories, and minister right and justice onely by the learned and Graduates of that profession; that the principles of solid wisdome and best Mo­ral Honesty are taught thereby; that it has described and set down the duties of all people of what relation soever, more amply, and more to the pattern of nature and right reason then any other Law has done. Yet this free and ample acknowledgment notwithstanding, they will not ad­mit the use and practise thereof in the ministration of [Page 174]justice within this nation to be cōvenient or necessary, suggesting to themselves certain reasons strong and important, as they pre­tend, why that profession how learned and wise soever in it self, yet since it is become useless, as to the people of this Nation, it cannot conveniently, as our affairs are now changed, be con­tinued here any longer, as they imagine. Which opinion how well it is grounded, it is meet and requisite we should in the next place examine; for except it may be maintained that it is also usefull and very necessary for the Common-wealth under which we now live, and no way, or at least, in comparison of the great benefits thereof, not considerably inconvenient, all the other excellencies and rare qualities that can be spoken thereof, will turn but into a speculative and ayrie discourse, and will move nothing towards the begetting of a publick settlement thereof within the Nation: for, they will say, all rules and in­structions that are useful to inform the understanding, and fa­shion the manners and actions of private men or of Princes, as they are men onely, may not presently be fitting or necessary to regulate and direct a State in the carrying on of publick business.

Let it therefore be added for a further commendation of the Imperial Law; first, that as it containes the dictates of nature, the conclusions of right reason, and as it sets forth the natural and essential properties of such humane things, contracts and dealings of men, whereof it treats, (of all which without com­parison the greatest plenty lies recorded in the writings of the Civil Law) I say, as it containes all these, it is so essentially ne­cessary to the well ordering of all States and the common affairs of men, that it cannot be abolished through any change of Law or government whatsoever, but at the same instant the peace and well-being of that State and people must needs vanish and dissolve also: For can the Sun fall from the firmament, and the world not be at an end? or the soule expire, and the body not be void of life or motion? No more can the splendour of that people endure any longer, where the sun of natural equity and justice has left to shine amongst them; nor can the body of a Common-wealth grow prosperous or flourishing, that is fal­len from the soundness of right reason, which is the very soul [Page 175]and spirit of all Law and government: for in this it is no other­wise with a whole society of men, then it is with one individual person.

If a man shall be unnatural, and cares not to observe true right and just reason in his dealings with other men, he present­ly renders himself odious and detestable to all men, and it is lookt upon as dangerous to have any dealings or to be familiar with such a person. So if a State, which is a collective body of men, when they are appealed to for common right, either by their own people, or by other Nations, shall administer that for right, which crosses natural justice, and the notions of right reason, it exposes it self to scorn and obloquie, it gaules and exasperates their own subjects, and makes their neighbours stand at a distance with them: and the condition of that State must needs be dangerous and unsure, having lost their reputa­tion both at home and abroad. Onely here is the difference, and it is a sad one; The danger of particular injustice deter­mines in some detriment of a few; but national injustice drawes after it ofttimes the ruine and confusion of many Nations.

Besides, the impressions of nature and reason are so strong in man and so great a part of his essence, that they cannot be quite expunged or deleted in him; neither can they be so long dis­continued, but they will at length have their return —Natu­ram expellas furcalicet, usque recurret— and inclinations and affections thereunto will appear, even when the contrary is performed. So true is that of the Civil Law, Jura naturalia sunt immutabilia; Parag. 11. Inst. De jur. nat. geut. & Civil. The Laws of nature and the common rea­son of nations are unchangeable, and are not capable to be re­pealed.

For if it were once admitted, that these Laws were alterable, what strange contradictions and sensless incongruities would follow? And how would man be ravished as it were from him­self, his reason one chief part of his essence being taken away? Besides, how would sins and trespasses against nature multiply? How common would natural injustice be? and what loud com­plaints thereof would arise? whereby not onely great confusion would break in, and the peace of the Common-wealth be di­sturbed, [Page 176]but the common society of Nations would in time also cease. The Civil Law then, as it is natural, essential, or rational, cannot be repealed.

Secondly, let it be spoken to its praise also, that the Civil Law is so far from being made useless to a Nation, where the whole state of Government has been subverted, as that it is thereby become more useful and necessary.

It is certain, that the Roman people themselves thought it so, when they dispatcht certain chosen men on purpose to fetch it from Athens for their use and service, after they had driven out their Kings, suppressed their Laws, and erected a popular government in place of the Regal. The like opinion posses­seth now adayes the Princes and potentates of the greatest part of Europe, as is clearly demonstrated by their admitting the learning and profession thereof into their several Territories, that it may be at hand to decide and resolve such cases and que­stions of right, that happen amongst their people, wherein a Law of their own is wanting:

Nay, if any such difference or controversie arises between the Princes themselves, or between Nation and Nation, which is most frequent and common; because there never was nor can be by any authority a positive Law made to bind them, they de­bate and argue such differences by arguments fetcht from the Civil Law, and allow of the reason thereof as a most competent and equal rule to decide them by.

And if this supply of justice by the learning and knowledge of the Civil Law were taken away too, what ignorance, uncer­tainty, arbitrariness, injustice, and oppression would the peo­ple of the world lie under? and what hazards of detriment or ruine would their rights, fortunes, and estates be exposed unto? for where all manner of Law is wanting in a Common-weale, to do the acts of justice and ministration of right by, it must be granted, that the light of natural reason must of necessity be the Law; since that was the onely means which was given to man at first to judge and discern by of humane things, before any Law was given. But if that should depend upon the wan­dring fancies and imaginations of men onely, and not be illumi­nated by some right knowledge and learning, under how many [Page 177]several shapes and forms must it needs appear, when the appre­hensions and conceptions of men through the variety of natural gifts, education, age, knowledge, and experience, are as diffe [...] ­ing, as their visages and persons be?

And where would the certainty, constancy, and unity of ju­stice be, when the Judges of the same Tribunal furnished with bare natural endowments onely, would differ from and oppose one another? when one Tribunal shall judge directly opposite to another upon one and the same fact, or (which is a levity shameful and unbeseeming) when the Judges of the same Court in cases of like nature, shall judge and order diversly from that which they had done before?Apud Roma­nos prius quàm sententiam fer­rent, prae [...]o clara v [...]ce judices bor­tabatur, Ne se paterentur sui dissimiles esse. Bodin. de rep. lib. 6. ca. 6. Under which uncertainty and discordance how shall people know what to expect, when their rights come into question? What can any Counsel advise? Or what caution or advisedness can be used by men, to put them­selves or their affairs out of jeopardy, when they are never cer­tain of that justice to which they should conform themselves, and be secure?

By the conversion and change of State therefore, though the Municipal Law goes to wrack (as commonly such great frames are seldome medled withal, but all falls a pieces) the Civil Law is not the less, but rather the more necessary to be retained still; First, because it hath no coherence or conglutination with the particular customes or government, either Regal or Episco­pal, as the Municipal Law hath, and so the one may fall, and yet the other stand. Secondly, because the Civil Law is the proper Art and Science of that right natural reason, which for want of other rules in the doing of justice, we have said must necessarily be the common standard to try all things by. The principles of which Art and Science are not weak or superficial, but strong and solid; not various or repug­nant, but certain and agreeing; not harsh and rigorous, but tender, compassionate, and equitable; not partial to any, but alike just to all; not obscure and perplexed, but clear and per­spicuous in the eyes of judicious and right discerning men, though above the reach of the vulgar. Thirdly, because it carries the weight of undeniable authority along with it, the decisions thereof being not the sudden fancies and raw conceits [Page 178]of a few men, nor do they rest upon the bare Reports of any, how learned in the Law soever, but they are the clear evidence of Reason, and the prudent advisements and mature deliberati­ons of a whole State, excelling in wisdome, mighty in greatness, and famous in renown.

And howsoever it was at first ordained to be a Law for a par­ticular Nation to be ruled by, yet has it since been made univer­sal in use throughout Europe; and by the general consent of all the learned sprung up to an Art or Science, to teach natural justice and equity to all mankind. Fourthly, because the rea­son of the Civil Law does not onely rightly inform and teach the understanding what is just and right, but the certainty there­of does keep the judgment steddy, and unexposed to those fits of variation and instability, which those that are directed by no certain principles, are subject to; for it is not easie for them to vary, who have any fixed rules to guide them: So that if this Law were duly applied by those onely that are learned in it (since it is not possible to be done by any other sort of men) neither ignorance, nor errour, nor arbitrariness, nor uncer­tainty of justice, nor the consequences thereof, wrong, inju­stice, or oppression would be found, at least they would not be so frequent and common, as where the guidance and light of such a Law is wanting.

But besides these foregoing reasons, there are yet further and much stronger reasons to be added, why those matters and causes, which before the present change of government did be­long to the trial and determination of the Civil Law, should be kept within the same cognisance still, these alterations notwith­standing. First, because for many hundreds of years, that and no other has been the standing, approved, and practised Law in those matters, and therefore in that regard to be preferred before any new Law, though better, if such a one could possi­bly be found. Secondly, because if it should be laid aside, it would be so impossible to finde a better, that we should find no Law or rule at all, to put in the room thereof, that would be able to decide them with any tolerable discretion or knowledge. The professours of the Municipal Law must acknowledge, that their Book cases (the onely learning of their Law) must needs [Page 179]here fail them, when not any of those matters were ever judg'd or tried before them. Where then would the Law or rule be found? And surely from that we have before said, it were ve­ry inconvenient to commit the triall of them to such as have neither Law or knowledge proper for the determination of them. Thirdly, because thereby so eminent and so useful a profession might be kept up; which else to the great dishonour and dammage of this Nation must irrecoverably fall, and be quite extinct. Fourthly, because if these things were suffered to go on in their accustomed way, it would make this great change of State to be the less, which in all alterations is to be wished and sought after. Fifthly, because there was nothing in the nature of those causes to tie them to the former govern­ment onely; but that they may be tried under the name and authority of the present government, and yet as much accord­ing to the course of the Civil Law, as they were before; for in­deed the Civil Law is fitted to act under any government. It can serve the Church, as well as the State; the Popular govern­ment, as well as the Regall; and the Aristocratical, as well as either; as we shall clearly find if we look into the States abroad, as France, Spain, the Empire, the Territories of the Church of Rome, the States of the Low Countreys, the States of Italy, the State of Venice, whose differing in point of government does not hinder, but that the Civil Law is used and practised in them all.

The reason whereof is, because it meddles not with matters of government at all, but was originally made to order the pri­vate affairs of the people, and to judge the matter of right be­tween party and party onely; as may appear by the very state and purport of the Laws themselves, which are as answers made to questions onely concerning matters of private right and inte­rest, as they did arise from time to time, during the long con­tinuance of the Roman Empire. Besides, the Romans them­selves after they had expulsed their Kings, saw several kindes of government, and yet the Civil Law served under them all. And if it did not stand indifferent in this point of government, so many Princes and States herein very much disagreeing, would not so freely admit it into their Territories, as they do; for can [Page 180]we think, that they would consent to the admittance of any thing that might endanger their government? So that it is clear, the change of government that has been amongst us, does not at all hinder, but that as long as the same causes as well Mari­time as others, do remain, and must necessarily have a Trial, the Civil Law, that tried them before, is the fittest Law to try them still.

It is of as little force and moment, and ought to hinder no more, which is objected, That the Civil Law is a forreign Law, not ordained by the Legislative power and authority of this Nation; and therefore very inconvenient it may seem, that matters arising here should be ordered by any other Law, then which is of our own making, or that we should be made to sub­mit to any other. Besides, to have two Laws tolerated in one State, may cause great distraction and uncertainty amongst the people, who may under several pretences be troubled and con­vented under both for one and the same thing. Further, the entertaining of the Civil Law, may in time be a means to sup­plant and undermine the Municipal Law and customes of this Nation.

For as to its being a forreign Law, what is it more in that, then the Laws of the Saxons, Danes, and Normans; of the which our English Antiquaries, Cambden, Britann. fo. 153. Spelman, Glossar. verb. lex Anglorum. Co­well, Interpr. verb. Law. and Seiden, Notes upon Fortescue. ca. 17. in princ. all take notice, that the Laws of this Na­tion are but a mixture and composition? And yet it is not such a stranger amongst us neither, as may be conceived; for not onely Antiquity will tell us, that when the Romans were pos­sessed of this Nation, and during the continuance of their go­vernment and power here (which was no less then 500 years) all the affairs of this Nation were ordered and carried on by the Roman Civil Law; and had no Law to assist, much less to check it in all that time.Cambdens Britan. fo. 63. Seldens Dis­sertat. ad Flet. ca. 4. But also if we look no further back then twenty years ago, we shall remember the Civil Law did so far spread it self up and down this Nation, that there was not any one County, which had not some part of the govern­ment thereof managed and exercised by one or more of that profession, besides the great employment and practise it had in the Courts in London. So that it being thus incorporated, and [Page 181]as I may say, naturalized by our selves into this Common-wealth, it ought not to be reputed or look'd upon by us a stran­ger any longer.

Besides, right reason from what hand soever it comes presented, ought to be embraced by us;Rationabile dictum debet ita movere judicem ad judicandum, sicut ipsa lex. Quia lex est om­ne quod ratione consistit. Ita­que sufficit allegare naturalem rationem, li [...]et quis legem non alleget. Jas. in l. 19. Co. De collat. nu. 10. and is authority enough to it self, to car­ry the understanding, judgment, will, and affe­ctions of all men, though it be not put into a Law.Imbecillitas est humani intel­lectus in quacunque causa legem quaerere, ubi rationem natura­lem inveneris. Bald. in l. scire opor [...]et. parag. sufficit. Dig. De excus. Tut. But when besides its own commanding power and vertue, it comes withall recommen­ded by such a wise State as the Roman was, and framed into a Law by them, and has since been allowed of by other Nations also, as con­forming with the general reason of Man; surely it ought not to be lookt upon as strange and forreign unto us or to our affairs, carrying about as the same reason, and dealing in the same mat­ters that they did, meerly because we did not promulgate and enact the same.

Moreover, if we will deal in forreign affairs, and lanch forth into the wide Ocean, and converse with forreign people, and have to do with shipping, negotiation, and traffick, without which (so populous are we grown) we are not able so much as to subsist or live; or if we would be enabled to stand upon our own defence against a Nation that shall assault us by a war; or revenge unsufferable injuries done us by making war upon them; we must not then stand upon our own Legisla­tive authority, to which other Princes and people will not be obliged;Consuetudines vel statuta sunt localia, & sic non obligant nisi subditos. Gail. obs. lib. 2. obs. 124. nu. 5. but we must be contented to stand and submit our selves to such a Law how forreign soever, as is proper for those very matters, and to which other Nations do refer themselves; which is the Civil Law, that Nature has breathed out it self in, and Nations have consented unto.

And if it be so necessary for the carrying on of forreign affairs, that they cannot be transacted without it, this shews a neces­sity of admitting of it also in the agitation of certain matters and causes at home and amongst our selves, for the more am­ple reward and encouragement of that profession; which can [Page 182]never be maintained or upheld by the transaction of forreign affairs onely; which is not desired neither in any greater lati­tude or measure, then has been alwayes allowed it heretofore, and where the Common-Law has never known to intermeddle: and in which if the Civil Law should not be used, questions and differences would arise, and there would be no Law or Rule found to settle them, which would be a very pernicious thing: So that be the authority of the Civil Law forreign, which it can­not be, except it were imposed upon us by some other Nation or people; or be it that it were of no authority at all, but what the necessary assent of our own natural reason, and the con­sent of Nations gives it; yet it were strange that we should ra­ther chuse to have no Law at all in those matters, then to re­ceive or entertain the same for a help to direct our judgments in them.

It being then so necessary a Law, that but by the knowledg and conduct thereof forreign affairs cannot possibly be carried on, and there would be a manifest failer of justice in other matters at home without it, the supposed inconvenience of having two Laws in one and the same Nation, so much urged against it, will appear to be a very slender and inconsiderable thing; for how can that inconvenience hurt us more, then it does other Nations, that have Municipal Laws of their own, and yet do keep the Civil Law too? Besides, it is so far from being an inconveni­ence, that it is both a benefit and an honour to a people to a­bound in justice, and to have it rather supplied by two Laws, then to fail in the doing thereof by having but one.

And though where there be two Laws, and two distinct pro­fessions of them in one State, if the matters and causes where­of they are severally allowed the cognizance, be not certainly assigned to each, that the one may not enterfire with the other, there may arise a confusion of jurisdictions, and the subject will be uncertain whither to goe for justice, and may be in danger to be molested by both Courts for one and the same thing, which were an intollerable mischief:Gravius pri­vatorum damno peccatur, eùm inter summos magistratus, curiasve majores de imperio cer­tatur. Bodin. de rep. lib. 3. ca. 6. Yet the Courts of the Civil Law have alwayes had their limits particu­larly prescribed them, and the causes within their cognisance punctually set down; and if they hold plea of any thing else, [Page 183]there is a known remedy to be had to stop them, by bringing prohibitions from the Common-Law, which are never so soon ask'd, as granted. But if the Common-Law Courts shall draw to their examination such matters as do properly belong to the Civil, (as they have done too often) or do prohibit the Civil from proceeding, where they know they can do no right nor give any relief themselves, as in the business of allotting porti­ons amongst the deceaseds kindred, which they never did nor can do, nor will suffer the Civil Law Courts to do it neither, this an heavy vexation, but the blame must lie upon them. But to be sure, whilest there is such a correcting hand over the Courts of the Civil Law, there is little ground of fear that they can trouble or molest the people further then their just pow­er does authorise them. Which may be sufficient also to remove the jealousies of those that fear, if the Civil should be admit­ted, it may in time supplant and undermine the Municipal Law of this Nation: For it were a vain attempt for subordinate Courts to go about to shake the standing of that Law, to whose check and controule they lie continually subject.

And if in forreign Nations (that have their Municipal Laws all of them, but no profession, nor Lawyers, nor Judges, but of the Civil Law onely) there is not any found so bold and presumptuous, that dares at any time to set up the Civil Law above the particular Law or Custome of the place, though op­portunities to do it are not wanting, but that the particular Law or Custome, if any be in the case, does prevail, and has the praeeminence alwayes; surely then the Municipal Law and customes of England are much more secure from being inva­ded and incroched upon, when not onely the Law is distinct, but there is a distinct profession thereof also from the Civil Law, that bears a watchfull eye towards its own greatness, and which is more, that has a controuling power, and as it were a sovereignty over the other. Besides, the very principles of the Civil Law do run clean counter to any such de­sign, it being an express Maxime in that Law, That the Municipal Law and custome of any State for what con­cerns those that are subject to it, ought to be preferr'd before any more Universal Law that is [...] the contrary. [Page 184] Lex Municipalis sive consuetudo juri communi derogat; Gail. obs. lib. 3. obs. 124. nu. 2. Lex cujusque loci inspicienda est, sive scripta sit, sive non. Gl. in l. 5. parag. 1. Dig. De jur. immunit verb. legem. Tam in decidendis litigantium contro­versiis, is qui ur [...]sdictiou [...] pr [...] ­est, con [...]uctud n [...] lo [...]i, in quo con [...]actum est, observare [...]ebet, quàm in delictorum punt [...]ne, ejus loci consu [...]tudinem, in quo peccatum est, [...]sequi tenetur. l. si fundus. Dig. de evict. Doct. in l. cunctos. Co. De summ. Trinit. And as I have said before often, so I must inculcate it here still; The Civil Law, where ever it is admitted, it comes with­out the least prejudice to any, either Law, cu­stome, or government, nor alters any thing; but is an auxiliary supplement or a knowledg as­sisting in the administration of right and justice both to subjects, and between Nation and Na­tion, where there is no Municipal Law in the case, or where it is imperfect and obscure, or where a locall Law is of no authority at all. In the one it supplies, in the other it interprets, in the last it moderates, as a most indifferent Umpire.

So that of these two Laws the proper office and function is, without drawing several wayes, and clashing one against ano­ther, or questioning each others power, sweetly to joyn both in that most excellent and divine work of justice, which may render the people of this Nation most quiet within themselves, and honourably esteemed by others.

But lastly, there is a strange conceit that has got into the heads of some men, That the Civil and Canon Law are one and the same, that they cannot be severed that if the one be admit­ted, the other will have access also, and the letting in of the Canon Law, which was ordained by the Popes and the Church of Rome, will open a wide gap to introduce all their superstition, erroneous doctrine, and prelatical discipline; and so in time we shall become wholly Romish and Antichristian. And truly I must confess, that such a cause, that might produce so dan­gerous an effect, is not to be neglected, but is to be very care­fully look'd after. But as in the one the supposition is great­ly mistaken, so there is no such cause of fear in the other, nor any such danger as is surmised: for that these two Laws are the same, or that they are inseparable, is more then a small mistake. They were made at several times, long distant each from other, by several authors, and for several ends and purposes.

The Civil Law, after it had been growing by degrees in a [Page 187]very long process of time, as well under the people, when Rome was a free State, as under the Emperours; being become vo­luminous and indigested, the choycest thereof was pickt out and laid together, by Justinian; and that Collection was perfected in the year 533, and made the Law of the Empire, whereof Rome was now no part or member, but become the land of the Church, the place for the Popes and Bishops of Rome to sit in. Who though they made canons for the rule of the Church and Church-men long before, yet the Canon Law, that is now so styled, came not forth into the world till above 500 years af­ter; the first part thereof, which is Gratians decree, being not published till the year 1151.

The intent and purpose of the Civil Law was, to order and direct all the Civil affairs of the great and spacious Roman Em­pire: And the business of the Canon Law was to guide and go­vern the spiritual and ecclesiastical matters of the See of Rome; the one was ordained to rule a State, the other to discipline a Church. These considerations then dividing and setting apart these two Laws each from other, do manifestly shew, that they are neither the same, nor for the same end made, nor yet inseparable; for if that mighty State of the Romans could man­nage and carry on so much business as they dealt in, by the Ci­vil Law onely, what need has any lesser Nation now to make use of the Canon Law at all? Besides, there has been alwayes such a contention between these two Laws for superiority, and which should have most esteem with the Nations of Europe, that they have been rather ready to fight as foes, then unite and agree as friends. Nay, Mr Selden Dissert ad Flct. ca. 6. nu. 5. writes, that when Pope Inno­cent the second did sollicit the Europaean Princes and people to give admittance to the Canon Law within their Territories, think­ing thereby to enlarge his own jurisdiction and greatness, they did the more freely receive and entertain the Civil Law, that they might the better keep off both the Pope and his Law too. So that it should rather seem they are so far from being insepa­rable, that to entertain the one, is the onely means to shut out the other.

And indeed the Canon Law is unnecessary where the Civil is in use; for it is well known, that the latter Roman [Page 188]Emperours didBilson a Bi­shop of our Church doth defend Justini­an and the o­ther Emperors, and all Princes in so doing. Christian sub­ject part. 2. ci [...]ca princip. as they might justly do, make divers and sundry Laws from time to time for the ordering and regulating of eccesiastical matters and ecclesiastical men, as is evident by divers Titles in the Code, De summa Trinitate & fide catholica; De sacrosanctis ecclesiis; De episcopis & clericis; De haereticis; Ne sanctum baptisma iteretur; De Apostatis; De Judaeis & Coelicolis; De his qui ad ecclesias confugiunt, and the like. And it is as certain, thatAs may be seen in the Hi­story of the Councel of Trent. Lib. 4. fol 332, 333. and lib. 7. fo. 790. there is a multitude of things, which the Popes and the Church of Rome have taken upon them to order and make Canons in, in ordine ad spiritualia, in order to the spi­ritual welfare of mens souls, as they pretend, which are Tem­poral, and matters of civil intercourse between man and man; as may be seen in these Titles, De pactis. De precario. De commodato. De Deposito. De emptione & venditione. De locato & conducto. De rerum Permutatione. De pignoribus. De Donationibus. De Testa­mentis. De Treuga & Pace. De transactionibus. De Decimis, primi­tiis & oblationibus. De jure Patronatus. De sponsalibus & ma­trimoniis. De successionibus ab intestato. De Homicidio voluntario vel casuali. De Raptoribus. De furtis. And divers others.

And all these things in their true nature are but temporal, and meer matters of Negociation or actings between man and man, though some of them, as Tythes, presentations to Benefices, Marriages, Testaments, successions to Dead mens goods that have died intestate, & other such like, are by the Church of Rome accounted spiritual, and through indulgence of divers Princes for the Honour of the Church, the jurisdiction in them has been granted unto spiritual men. But that has proceeded rather from the favour of Princes, then from theBishop Bilson saith, That the Popes decrees, judgments, and executions in these cases, if claimed from Christ as things spiritual, and not granted by Caesar, are but open invasions of Princes rights, calling those thing; spiritual, which indeed be civil and temporal. Christian subject. part. 2. cirea med. nature of the things themselves.

And whosoever does take a survey of the Canon Law in the Titles above mentioned, and in divers others, he shall finde it most taken out, and speak the very language of the Civil Law: and so much is noted and observed all along by the very Gloss and Canonists themselves. So that hereby the Canon Law ap­pears [Page 189]to be of little use, when for the ordering of those matters, we may be supplied from the fountain it self, from whence the Canon Law has got it. But suppose there were such a necessary concomitancy between these two Laws, and that the use and practise of the one would be a sure inlet to the other, as some do too fondly imagine; does it therefore follow, that the er­rours and superstitions of the Church of Rome must needs creep in too? No more surely, then it follows, that because the old Law, that is full of Jewish rights and ceremonies, is joyned to the Gospel, and that we read both together, we must therefore presently all become Jews.

And thus having satisfied all scruples, that are usually made against the continuing the Civil Law within this Nation; I shall but shut up all in this conclusion: That seing the Roman State, out of their wonderful wisdome and great experience in go­vernment and the several affairs of the World, did devise a Law not onely proper for themselves, but so mainly useful to other Nations also; and that the industry of the learned working upon that foundation, has by method, order, Rules, expositions, illustrations, and treatises of all kinds, reduced it to a perfect and compleat Art and Science of Law, whereby the right skill and way of doing the purest and most natural justice, whatsoe­ver the case be, may be taught and known; And when it has from thence been ingrafted into our own and the other Univer­sities of Europe, and made one of the three chief Sciences there, to which the rest of the Arts serve as it were as handmaids and servants; and all for the directing of men and Nations, how they should deal honestly and uprightly with one another; see­ing also that our very Martial affairs cannot proceed wel, nor be rightly regulated without it; and that those Nations whom we have most dealings and intercourse withall, and to whom we should despise to be any whit inferiour, do not onely keep it, but also have no other profession of Law besides it, and do think their own private Laws to be very insufficient and lame without it; and that divers matters and causes amongst our selves will remain without any Law at all, except the Civil Law be kept to order them, as it did before; Lastly, when the Civil Law comes to help and assist, and not to infringe or take away from the Municipal Law at all: If we shall now abandon it, and cast it [Page 190]out of our coasts, or which is all [...], if we shall reward and encourage it so slenderly, that no man will either think it worth his pains to study, or his cost to take any degree in it (to which pass it is most visibly come already) I say, if we shall still thus neglect or despise it either way; we shall not onely set light by the Policy and Wisdome of the Romans, which all o­ther people are studious to imitate and come as near as possibly they can; but we shall also deprive our selves of one excellent means to improve our knowledge and reason by; our justice without it, being guided by illiterate and irrational principles, will be less satisfactory to the people; our skill in the discipline of War, and in the Laws of Armes will be very defective; the very harmony of learning, that has so long flourished amongst us, will be dissolved, when so considerable a part as the Civil Law is broken off from it; other Nations will grow too wise and subtil for us, and will turn and winde us as they lift; and our justice at home will be lamed, not being competent enough for the matters we deal in. The consequence of all which will be, mischief at home, and dishonour abroad, which all good Patriots and lovers of their Countrey will lament to see.

An Index of the principal matters con­tained in this Book.

A
  • ARts and Sciences have their begin­ning, growing, falling, and rising again. fol. 50
  • Argument drawn from like case is unsufficient. fol. 41
  • Admiralty Court proper to be mana­ged by Civilians onely. 148
  • Athens was the place from whence the Civil Law first came. 29, 103
B
  • Business of other men, if I expend any money or care upon, though without their privity, the Civil Law will see me satisfied. 90
  • Books of the Roman Laws when and where found, after that learning had lain neglected a long time. 122
  • Barbarisme will be let in, where the Civil Law is expell'd. 134
  • Books of the Roman Laws that were before Justinians Collection, after that came forth, were quite lost. 121
C
  • Children, if no disposition at all were made by the father, did equally divide the whole estate between them, by the Civil Law. fol. 15. Enjoyned so to reverence their parents, that they could not sue them without leave, nor be wit­nesses against them, nor marry without their consent, nor charge them with any criminal act. 11
  • Collusion odious by the Civil Law, and makes the act void. 13
  • The Civil Law agreeable not onely to the first principles of nature, but also to others never so much remote. fol. 21. made to rule the mightiest Empire that ever was, and since propagated to other Nations. 29. and how it came so. 30. it teaches men to be vertuous and inno­cent. 48. though sometimes in obscu­rity, yet never to be quite lost. 50. it handles publick matters very sparingly. 52. custome must agree with reason. 36. customes are more acceptable to the people, then Laws are. ibid.
  • Cases commonly all differ from one ano­ther. 41
  • The Civil Law containes the whole reason of man, both private, politick, and that of Nations. 53, 63. it runs more in a convincing then commanding style. 65. most conformable to the Divine [Page]and eternal Law. 66. grown to be the common authority to justifie or condemn humane actions. 67. it avoids niceties, and follows the true intent onely. 67. it will not allow of some things, because they are not worthy nor honourable, though o­therwise lawful. 70. it is full of clemen­cy & mildness. 71. it prefers equity be­fore rigour. 78. all persons of what con­dition soever may read their duties in it. 93. The fundamentals thereof fetcht from other states, the best governed that then were. 103. 29
  • Civil Law how it may be admitted in­to England without any inconvenience. 108
  • Civil Law almost destroyed when the Roman Empire was invaded by barba­rous people, 114. 116. the first books thereof being lost, did much hurt and injury to those that we have now, being but an extract of them 121 many of the books thereof to an infinite number perished and were lost by the sad fates that befel Rome, Berytus, and Con­stantinople. 122. yet under Lotharius the Emperour is was again restored. ib. and afterwards grew so great, that other learning was neglected, and all did stu­dy that onely. 123. The Edicts of Princes how severe soever, were not able to suppress it. 124. no where so much in use as in Spain and France, though they have both made sharpe decrees against it. 130. How it came into that forme, order, and method which now we set it in. 167. what a multitude of writers there are in this Law. 170
  • Civil Law is not proper to govern eve­ry State by. 140. 51
  • Cities three above all others most fa­mous for the study of the Civil Law, Rome, Berytus & Constantinople. 122
  • Civil Law has not of it self any au­thoritative force to binde as a Law in any Nation, but is and must be of force every where, as it contains true and so­lid reason, to 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 [Page]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 [Page]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 ground­work 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
  • [Page]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 Canon Law the better. 124. yet be does make use of the Civil Law. 163
  • Parents were bound to leave a cer [...]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 [Page]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
  • Ʋniversities of England, why they practise the Civil Law. 161
  • [Page]Ʋniversities 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 li [...]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 …

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 [Page]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 [Page]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 he was; that emboldens me to desire your Lordships leave to prefix your Name, that this may be as an Acces­sory to follow its desired Principal: And knowing you to be such, I cannot but (as all, that know you as well as I, I am con­fident do) wish for the common good, that your Lordship were put in statum merendi, into the sphere of your proper Activity, that the Publick might reap the benefit there­of, [Page]of, and that your Talent might be no lon­ger (as it was whilest Rebellious Usurpa­tion caused it, and did obicem ponere; now removed) wrapt up in a Napkin, nor your Candle hid under a Bushel: So wishes, so prayes,

MY LORD,
Your Lordships much bounden and most humble Servant, EDWARD LAKE.
Westminster 11. Novemb. 1661.

To the READER.

SOme account may perhaps be expected to be given of this small endeavour, touching the passing that Act of clearing the doubt touching Coercive Power in Causes Ecclesiastical; wherein is that Proviso that forbids all Ecclesiasticall Judges to tender or admi­nister an Oath to any person Ex Officio or otherwise, or Purgation; whereby any person may confesse or ac­cuse himself, so as to make him or her liable to cen­sure or punishment. There were not a few persons, un­friends at least to the Discipline of the Church of Eng­land, that insulted much (as is touched hereafter) and clamoured of the oppression of the Ecclesiastical Courts, that hath been (say they) all the time before the passing of that Act, that took away that Oath: It was suitable to their interest to call that oppression. When Brutus had murdered Caesar, he called him Tyrant; Ita enim appellari Caesa­rem facto ejus expediebat, saith Velleius Paterculus, Histor. lib. 2. From the time of passing that Act, till within these few dayes, I expected from abler pens some Vindication of the proceedings of Ecclesiasticall Courts, as touching such Oath and Canonical Purgation, and the lawful andexpedient use thereof before that Act; but none that I hear of attempting it: I looked upon the cause as a Derelict, took it up, and though (by the late iniquity of the times) I being too much severall wayes unfurnished for such a Work; yet, if but to give some satisfaction to indif­ferent men, and to wipe away at least in part causeless ca­lumny, and to stir up others to a further prosecution hereof; I conceived I might adventure upon this little Modell or Plat-form, and perhaps more fitly at this time then ano­ther, [Page]till a more complete Structure may be raised upon this subject, if more be needful; being so learnedly and fully handled, especially by Doctor Consens sometimes Dean of the Arches, and that late glory of our Church Doctor An­drewes, lat Lord Bishop of Winchester. That I should escape from objections and censures too, I can scarce sup­pose, upon such a Subject as this is, ingrateful to such men as are haeredes ex asse, to the ancient opposers of it, and are inveighers against it; and those that executed it, quos lae­serint, oderint, alwayes excepting the Members of both Houses of Parliament out of that number. Some too per­haps may dislike my Dedication of it (though no Act more free then that) as not to some of my own profession, or rather to my own most Learned and Pious Diocesan, the Reverend Father in God, Doctor Robert Sanderson Lord Bishop of Lincoln; having relation to him by Office of Trust: To him and then I should rather have made my addresse then Dedication, and have herein consulted with them, had time and convenience served before I had attempted this, and not carry Owles to Athens, go about to give instructi­on to them, from whom I should rather have received it. But as to that most Noble Person, to whom this is inscribed, though according to his Birth and Education, his motion hath alwayes been in an higher Orbe and Contemplation of affaires of greater moment, more immediately enabling him to serve his King and Country: But (they by being somewhat more particularly concerned in a great part of the subject matter hereof) therefore by some may be supposed par­tiall and interessed. Yet even in the subject matter of these Memoranda he is not unversed, if not more particularly; yet as comprehended in that generality of Learning and Knowledge, whereto he hath from his younger yeares been habituated to, at the feet of such a States-man, as was his [Page]most accomplished Father, and such Instructors as he by his especial and most discerning choice appointed him; and all this perfected up by most advantagious acquisiti­on by travel and residence in forraign parts, amongst those who are justly ranked in the number of the most Civil, Learned, and Wise in Europe, and so consequently in the Universe; and so need not mine or others instruction here­in more then others, not professed Lawyers. But all that is comprised in this Model, both in the Memoranda's and the Notes, somewhat grounded upon some yeares experi­ence I have had, and tending, as before, at least in my well-meaning opinion to the publick good solely; is so most humbly offered to consideration, if by those in Authority it be thought fit. He is, I conceive, very fit to further and advance this, both in consideration of his abilities, and his being impowred as others of his noble rank and quality in the Supreme Judicatory of this Kingdom; and by his own Genius and propensity, willing and desirous to effect any thing ayming that way, as less cannot be expected from the Son of such a Father, and Husband of such a wife, his most noble and most vertuous Lady, (a pair in respect of the mu­tual parity of their most intense conjugal affection, and pa­rentizing love to Loyalty, Justice and Honour, hereditary vertues flowing in their veines from their most Noble Loy­ally, Gloriously Acting and Suffering Parents; not easily parallel'd) and therefore I have not so much Dedicated this to him, as supplicated his effectual adminicular hand hereto.

Upon the whole matter as touching my self, this Modell, as also, if not more especially the Notes subjoyn'd; I ha­ving had no small share of Sufferings in the time of exile­ment of Monarch and Monarchy, and so consequently of joy and gladness in the happy Restauration of both; in my due gratitude and obligation, both by tie of natural duty, [Page]and of God and Mans Laws, have made it part of my study to endeavour to contribute my well-meaning mite to the publick good, and the prevention such miseries for the future, as too lately we have had too sad experience of. In­stances might be given of many that have published their endeavours heretofore to such publick ends, which have not proved ineffectual, and more especially Mr. Spencer touch­ing the State of Ireland in queen Elizabeths time. If in any measure never so remote, they may any whit help to at­tain to that end they aime at; I shall be glad of it, and with that true candour submissively offering them, alwayes pro­testing as I now do, that if there be any thing herein, con­trary to Gods word Directly or indirectly, or to His Maje­sties Prerogative, or the known Laws of the Land, Eccle­siastical or Temporal, or the politick Government either in Church or State, or which may give just offence: I do here­by absolutely retract it, as no wayes by me intended or thought of, wishing this small taste may stir up others (more able) to make a further and better progress in this kind.

Anno 13. CAROLI II. Regis.
An Act for explanation of a Clause contained in an Act of Parliament made in the seventeenth year of the late King Charles, entituled, An Act for repeal of a branch of a Statute primo Elizabethae, concerning Commissioners for Causes Ecclesiastical.

WHereas in an Act of Parliantent made in the seven­teenth year of the late King Charles, entituled, An Act for repeal of a branch of a Statute, primo Elizabethae, con­cerning Commissioners for Causes Ecclesiastical; it is (amongst other things) enacted, That no Archbishop, Bishop, nor Micar General, nor any Chancellor, nor Commissary of any Archbishop, Bishop, or Micar General, nor any Droinary whatsoever, nor any other Spiritual or Ecclessastical Judge, Dificer, or Minister of Justice, nor any other person or persons whatsoever, exercising Spiritual or Ecclessastical Power, Authority or Jurisdiction, by any Grant, License or Commis­sion of the Kings Majesty, his Meirs or Successors, or by any Power or Authority derived from the King, his Deirs or Suc­cessors, or otherwise, shall from and after the first day of Au­gust, (which then shall be in the year of our Lord Bod, One thousand six hundred forty one) award, impose or inflict any Pain, Penalty, Fine, Amercement, Imprisonment, or other corporal punishment upon any of the Kings Subjects, for any Contempt, Misdemeanour, Crime, Offence, matter or thing whatsoever, belonging to Spiritual or Ecclestastical Cogni­lance or Jucisdiction, whereupon some doubt hath been made, that all ordinary Power of Coertion and Proceedings in Cau­ses Ecclessastical were taken away, whereby the ordinary course of Justice in Causes Ecclessastical hath been obstructed: Be it therefore declared and Enacted by the King; most excel­lent Majesty, by and with the advice and consent of the Lords and Commons in this present Parliament assembled, and by the Authority thereof, That neither the said Act, nor any thing [Page]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 [Page]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.
  • [Page]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 [Page 2]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, [Page 3]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 legi. Ad recognitiones vel sacramenta praestanda. Recognitionem item fa­cere non significare, testimonium perhibere, vel respondere in jure, sed debitum agnoscere, & fateri vel placita de Catalo­gis vel debitis tenere. Juramentum ex officio, in foris illis, ut in aliis, ex omni memoria fuisse exactum, ad simoniam, adulterium & alia tenebrarum opera rimanda, praesertim [Page 4]cum Insinuatio, ut loquuntur, fuerit clamosa. Et quamvis nemo teneatur seipsum prodere, tamen per famam prodi­tum teneri oftendere, utrum possit suam innocentiam de­fendere, & seipsum purgare, quandoquidem poenitentia imposita, non sit poena sed medicina ad peccatores curan­dos, alios à peccato deterrendos, & scandalum tollendum, juxta illud in Sacris Literis.’ Pro anima tua ne confundaris di­cere verum. Est enim confusio adducens peccatum, & confusio ad­ducens gloriam & gratiam. ‘Sed qui de hiis immoror, quum dissertationes Richardi Cosini Legum Doctoris & Johannis Morrisii & Lanceloti Andrewes eruditae hac de re utrinque praestent? Regina haud ignara suam authoritatem per Episcoporum latera in hoc negotio peti, adversantium im­petus tacite infregit, & Ecclesiasticam Jurisdictionem illaesam conservavit. That is, Not onely these, (speaking of Hackett and his Complices) but others also, who had hi­therto, though in vain, impugned the received Discipline of the Church of England, by condemning the calling of Bishops, and contumeliously slandering the Praelates; having now drawn into their party some Common-Lawyers, sharpned both their Tongues and Pens against their Jurisdiction, and the Authority which the Queen delegated in Ecclesiasticall Causes as altogether unjust, de­claiming every where, even in Books published, that men were unworthily oppressed in the Ecclesiasticall Courts, contrary to the Lawes of the Kingdom. That the Queen could not by Law delegate such kinde of Authority, nor others to whom it was delegated could exercise it. That these Courts could not require the Oath ex officio from the defendent party, when as no man is bound to accuse him­self. That Oath precipitates men to condemn themselves with ignominious confusion, or into wilful perjury to the destruction of their Souls. Besides, they ought not to hold cognizance of any other causes then Matrimoniall and Testamentary, according to that old Mandate of Rescript,’ We command our Sheriff of our Counties of S. N. &c. that they suffer not any in their Balive to come together in any places, to make any Recognizances upon their Oaths, but in Matrimoniall and Te­stamentary [Page 5]causes. ‘On the other side the Professors of the Ecclesiasticall Lawes maintain'd, the Royall Authority in Causes Ecclesiasticall as vested in the Queen by Authority of Parliament. To oppose this, was nothing else then to offer violence to Royall Majesty, and violating the Oath of obedience, to insult over the Sacred Prerogative Royall. The Ecclesiasticall Courts may hold cognizance of other Causes, then Matrimoniall and Testamentary, by the Sta­tute of Circumspecte agatis and Artiouli Cleri, in the time of Edward the first as they made it appeare. That Rescript or Law which they produc'd was suspected, because it was incertain for the time, and is variously read. Elsewhere I have read it, To perform Recognisances and Oaths, and to make recognition or recognizance, doth not signifie to give te­stimony, or to answer in Law, but to acknowledge and confesse a debt, or to hold plea of Inventaries or Debts. That the Oath ex officio hath time out of mind been given in these Courts as in others, to sift out Simonie, Adultery, and other works of darkness; especially, when the Insi­nuation as they call it, becomes loud.’ And though no man is bound to betray himself, yet being betrayed by fame, he is bound to shew himself whether he can defend his innocence and purge him­self, seeing the penance enjoyned is not a punishment, but a medicine to cure sinners, and to deter others from sinning, and to take away scandall, according to that in Scripture, Be not confounded in speaking truth for thy souls sake, for there is a confusion that brings sin, and there is a confusion that brings glory and grace. ‘But what do I dwelling upon these things, when the Learned discour­ses hereupon on both sides are extant of Richard Cosin Do­ctor of the Lawes, and John Morris, and Lancelot Andrewes? The Queen not ignorant that Her Authority was in this business struck at through the sides of the Bishops, tacitely crusn'd the violence of the Adversaries, and conserv'd the Ecclesiasticall Jurisdiction inviolate.’ Thus in a few words he summes up part of them marrow of these Learned dissertati­ons, and gives his sound judgement thereupon. But still they went on in their design, in which I believe they will ever be found immoveable. We have had sufficient expe­rience [Page 6]that way at what they aime, and that there is no hope of bending without breaking too. In their admonition to the Parliament in that Queens Reign they tell us, to this effect at least, that if they cannot have what they desire by fair meanes, they will have it by a way shall make our hearts ake; and I think they have indifferently well made their words good. Yet blessed be God, we are delivered again from them, god give us care to beware of them, and not to fall again into their snares by those blessed Titles of Mercy and Moderation, heavenly good surely, if rightly ap­plied. Let us but contemplate our fresh miseries, and the murther of our blessed King and Martyr, King Charles the First, and his [...], 'tis well to be hoped 'twill prove as much or more effectual, then the Pages Memento to Philip of Macedon in another case. These men, for they were all of the same Leaven, still persisted in their design, all along the Reign of Queen Elizabeth, and upon King James his com­ing in, thinking upon that change to have wrought some­thing extraordinary upon a Prince that had a great access of Dominion, and probably at his entrance would endeavour to satisfie all or most, so far as with reason it could be expected, and to ingratiate himself as far as fitting with his new Sub­jects. But it was our happiness, though his trouble and ve­xation, that he was well acquainted with the factious and se­ditious humours of that gang in Scotland, (with whom and ours here of the same mould, I believe ever was and will be a correspondence and co-operation.) Ex virids observantia this is too demonstrable. They then set upon King Iames with their most humble Petition, called The Lincoln-shire Ministers Petition, perhaps denominatio à majori; it was a complication of many parts: there they desire favour for tender Consci­ences, and thereupon was the Conference at Hampton-Court granted, where their Reasons were, as it were, brayed in a Mortar, and they or most of them seem'd satisfied; but ma­ny of them at least, soon returned to their vomit. In that Peti­tion they promise all obedience, and profess they hold it con­trary to Gods Word, and the practice of the Primitive Chri­stians, to resist the Prince, or to get Reformation by force or [Page 7]violence. To this effect they supplicate and hold forth; yet I believe it may be prov'd, that some of these individual per­sons in that Petition, adhered expresly to the late Rebels a­gainst His Majesty, if they were not actually in Arms against him, as most if not all of their Opinions were. How they crept in, or rather marched on furiously, though slily in the the late King time, till they had weav'd up their Web to their desire: we have seen and sadly felt. When the High-Commission and Star-Chamber were taken away, a great point was gain'd: To speak of nothing else but the sub­ject upon which I am. Yet by the way it is observable, that many, if not most, moderate men are of opinion, that the Government will not be well settled, till both these Courts, though happily in many particulars altered and regulated. or [...], some other Courts much like them, be establi­shed; where extraordinary crimes and persons may be order­ed: and in the former, the High-Commission, the shifting of criminous persons from one Diocese to another may be met with. It was no small part of their design, to trample upon Ecclesiastical Jurisdiction, and to take away the coercive power, and to make it precarious and ridiculous: as they would interpret that Statute, which, if credible relations be true, was but strangely got; insomuch that a great leading Member in the House of Commons then in that long Parlia­ment, cryed out, Digitus Dei suit in eo; that though it were not intended, yet the words would bear it, which he rejoy­ced at; though many, and not of the least, able Lawyers in the Kingdom were not of his opinion. That Coercive pow­er, for no other have the Ecclesiastick Courts, (except Su­spension, a degree below it, which amounts but to a small co­ercion to refractory persons, in regard it goes not further, the secular arme cannot be called upon that;) that, I say, that coercive power is Excommunication. That is the power of the Keyes, how far that power may be staid, retarded or for­born, I intend not to dispute; but that it shall be totally ta­ken away from the Church, Quasinon esset Deus in coelis, that surely is not to be believed, that it can be done by any power under Heaven. But that taking away that coercive power [Page 8]from the Ecclesiastical Courts, as they interpreted it, (and they knew they had argumentum à fortiori to maintain it) did not a little further and heighten their design. At the time of their raising their Militia against the late King, a person of no mean quality at a great Assembly made his Harangue to the people, (as I heard it from a very credible person, who said he was then and there present and heard it) and then and there enumerated the many great blessings this Nation had received from that blessed Parliament, (as he call'd it) That Ship-money was taken away, and the Star-Chamber was ta­ken away, and the High-Commission was taken away, and the Spiritual Courts too are taken away: A man could not meddle with a Wench, (his expression was otherwise, which I am not willing to mention) but he must be question'd: Hinc illae lacrymae. Indeed that was a great Eye-sore. Delin­quents never love the Judges that punish them.

At laus summa, viris displicuisse malis.

And this did not a little advantage the cause they had then in hand, very many persons that had been justly question'd in these Courts flocking in to their colours. But I take no delight to rekon up these strange passages, (to call them no worse) which were not a few when that storm was in raising, which afterwards shaked all the corners of the Land. Two onely which concerned Ecclesiastical proceedings, (to meddle with no other of higher nature, that the world rang of, and I would the memory of them could be perpetually abolished) I shall briefly touch, which amongst others were these: A grave and able Civilian, and then a Member of the House of Commons, was accused by an Inconformist, that he had excommunicated him, for not kneeling at the Com­munion when he received. I was present, and saw and heard it, and to my best remembrance it was for not kneeling at the Communion, at least it was for not performing some other Ceremony; so that as to this matter 'tis all one. the Civi­lian being called up to a Committee of the Lords, then in the Long Parliament, out of the House of Commons, to answer [Page 9]it. By his Counsel he desir'd time to send into the Countrey, where it was pretended to be done, to know whether he had done any such thing; it being impossible for him to remem­ber every particular that he had done in his jurisdiction, and that particular, he said, he did not remember. He had time given, and informed himself thereof; and at the next appoin­ted time of his appearanee, by his Counsel, pleaded that he had done no such thing, as he was accused of. The Accuser said, then it was done by his Deputy or surrogate: That was denyed too. Then he said, he was sure it was done by the Spiritual Court; and so it was, but not by any Spiritual Court where that Civilian had to do: Then the Civilian pleaded, that if he had done that whereof he was accused, he doubted not but he could have justified it: but since it ap­pears that he was unjustly accus'd, and reap'd some discredit by being thus question'd, and had been put to trouble and charge thereabouts, he desired reparation and charges: which by many of the Lords was yielded to, yet by the major part it was carried, that he ought not to have it; and the reason was rendred, because it would deter others from complaining. ‘Si satis est accusasse, quis erit innocens?’ Nay, how far may it tend to the ruine of some, if some men be maliciously set upon them, to multiply accusations against them?

The other was: Another Inconformist complaining of his being question'd in the Ecclesiastical Courts for his Inconfor­mity: In defence it was alledged against him and proved, that he had said, He would as soon how at the name of Judas, as at the Name of JESUS: and I diligently enquir'd, but never heard he was punish'd for it. But would there had been no more then these, though these are too much: Would some had not gloried, had not triumphed in their shame.

Bella gert placuit nullos habitura triumphos.

CHAP II.

The two Proviso's in the late Act that takes away the doubt touching Coercive power in Ecclesiastical Courts. Dr. Cosens Apology for sundry proceedings by Jurisdiction Ecclesiastical. That groundless Opinion, That a seve­ral Royal assent to the executing of every particular Canon is requir'd, is confuted. The validity of the Ec­clesiastical Laws. The clamours of Inconformists, Inno­vators and Fanaticks, against the putting of Ecclesiasti­cal Laws in execution, though the Ecclesiastical Of ficers and 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. [Page 11]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 [Page 12]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, [Page 13]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. in a Statute (since repealed by Queen Mary) a great number of particular causes of Jurisdi­ction Ecclesiastical, are there (by the way) rehearsed, that Ordinaries and other Ecclesiastical Judges might and did then put in execution.

So 1 Mar. c. 3. 1 Eliz. c. 1. 5 Eliz c. 23 & 9. That Perjury or Subornation in a Court Ecclesiastical shall and may be punished by such usual and ordinary Laws, as heretofore have been, and yet are used and frequented in the said Ecclesiastical Courts. Which pro­veth the usual practice of Jurisdiction Ecclesiastical hitherto used (without any special assent) to be lawful.

So 13 Eliz. c. 4. &c. 10. and many more in the same Queens time, and King James, and King Charles the First, that blessed King and Martyr. I say, many are the Laws that have been made for the strengthning of Ecclesiastical Ju­risdiction, and the more effectual execution of it; and some of these Laws were enlarged, altered and explained. But never was there any Law, Custom or Act of Parliament, that required a several Royal assent to the executing of every particular Canon. Many are the reasons which Dr. Cosens gives in the first Chapter of his Apology against that particular Assent; [Page 14]wherein he shews his great candor, and ingenuity, and desire to give abundant satisfaction to all Opponents, though never so unreasonable, that were it not as clear as the Noon-tide light, that no such particular assent is needful, some might think that he fear'd his cause, and be ready to say, that Desen­sio nimis operosa, reatum quasi arguit.

But touching the validity of the Ecclesiastical Laws, there needs, I conceive, no more be said then what is expressed in that Act of Parliament 25 H. 8.19. the Ecclesiastical Laws, that were in use and practice before that Statute, are thereby established thus:

Provided that such Canons, Constitutions, Ordinances and Synods Provincial, being already made, which be not contrariant nor repug­nant to the Laws, Statutes and Customs of this Realm, nor to the da­mage or hurt of the Kings Prerogative Royal, shall now still be used and execrated, as they were before the making of this Act, untill such time as they be viewed, &c. by the 32. persons mentioned in that Act: which is not yet done.

The Ecclesiastical Laws, which have been made since that Act, and all that ever hereafter shall be made, so long as tht Statute stands in force, (the requisites in that Act being ob­serv'd) are thereby, I conceive, confirmed, or to be confir­med. The Submission and Petition of the Clergy mentio­ned in that Act is, That they would not enact or put in ure any new Canons, &c. in their Convocation, without the Kings Royal assent and authority in that behalf.

There it is said, That the Convocation in the time coming shall alwayes be assembled by authority of the King Writ, and that the Clergy must have the Kings most royal assent and licence, to make, promulge, and execute such Canons, Constitutions and Ordinances, Provincial and Synodal: else they may not enact, promulge or constitute any such Canons, &c. And this course hath ever since been observed. Every Convocation called by His Ma­jesties Writ and the Clergy, had especial license from His Majesty to enact such Canons, &c. and to execute them.

The Provision following being observed, which is this, Provided that no Canons, Constuurions or Ordinances, shall be made or put in execution in this Realm by authority of the Convoca­tion [Page 15]of the Clergy, which shall be contrariant or repugnant to the Pre­rogative Royal, or the Customs, Laws or Statutes of this Realm, any thing contained in that Act to the contrary thereof notwith­standing.

If any be put in execution contrary to this Proviso, and contrary to any after-Acts of Parliament, whereby His Maje­sty hath further power acknowledged in causes Ecclesiastical, then 'tis illegal: but that is much sooner alledged than pro­ved. The particular Ecclesiastical Laws in force, have by Dr. Cosens and others been sufficiently demonstrated, I hum­bly conceive. In case any Jurisdiction Ecclesiastical or Ci­vil within this Realm, be not derived or claimed from the Crown, as to the execution of it at least; then the former ob­jection were of force; but another Act of Parliament, 8 Eliz. c. 1. shews the contrary sufficiently: where all Ecclesiastical Jurisdiction is acknowledged United to the Crown, as there fully: and that very clause 1 Eliz. 1. together with His Ma­jesties Letters Patents directed forth for confirming Archbi­shops and Bishops, is brought in the preamble thereof as a strong proof, without scruple or ambiguity, that the authority and jurisdiction by the Clergy executed, is thereby given them from Her Majesty. This also, were there nothing else, were suf­ficient to entitle them the Kings Majesties Ecclesiastical Laws, as well as other Laws, are called the Kings Majesties Laws. But they are up and down in the Acts of Parliament called the Kings and the Queens Ecclesiastical Laws, 1 Eliz. c. 2. 5 Eliz. c. 25. 25 H. 8.27. &c. and even by the Note ga­therer, that great oppugner, against whom the Doctor wri­teth, they are called the Ecclesiastical Laws of England. And in this late Act above mentioned they are called the Kings Majesties Ecclesiastical Laws.

Yet for executing of these Laws by the Ecclesiastical Jud­ges, what out-cries were made against them? especially in the beginning of the late Long Panliament, by His late Ma­jesty, of blessed memory, called the Black Parliament, Summa imis miscendo; and what favours were then afforded to those Boutefeu's, as we have since had sad experience of them, God grant we may be cafeful of them for the future, I am un­willing [Page 16]to recite. Ecclesiastical Judges are not onely tyed by their offices andCanon. 117. Canon. & Constitut. 1604. Oaths, but at least in some particulars, for which they have, though most unjustly, been much clamour'd against) are most severely by Act of Parliament charged to see the execution of, if not of others too, yet of one especial Ecclesiastical Law; for their care wherein some of them have been well-nigh ruined: that is, that according to that Act of Parliament, 1 Eliz. c. 2. For uniformity of Prayer and Administration of Sacraments, every person should diligently and faithfully resort to their Parish Church or Chappel, where Common prayer and such Services of God shall be used, upon every Sunday and other dayes ordeined and used to be kept as Holy-dayes, and then and there to abide orderly and soberly, during the time of Common prayer, Preaching, or other Service of God to be used and mini­stred, &c. Then follows thus, And for due execution hereof, the Queens most excellent Majesty, the Lords Temporal, and all the Commons in this present Parliament assembled, doth in Gods name earnestly require and charge, all the Archbishops, Bishops, and other Ordinaries, that they shall endeavour themselves to the ut­most of their knowledge, that the due and true execution hereof may be had, throughout their Dioceses and charges, as they will answer before God for such evils and plagues, wherewith Almighty God may justly punish his people for neglecting this good and wholsome Law. Who would think, (had we not sadly felt their de­signs) that the great Magnifiers of Parliaments (for which I discommend them not, so they keep within due compass) would have been so bitter against those, that acted but accor­ding to these strict Parliamentary charges?

CHAP. III.

The Heads of the several Chapters in that Apologie of Doctor Cosens. Part 1.

C. 1. THE particular distribution of causes proved to be of Ecclesiastical cognizance, besides Testamentary and Matrimonial. With a discourse of

C. 2. Bishops Certificates against persons excommunica­ted, being a special point of their voluntary Jurisdiction, where there is no party that prosecuteth.

C. 3. That matters in the former Chapter adjoyned to Te­stamentary and Matrimonial causes (though properly they be not of Testament or Matrimony) are of Ecclesiastical cogni­zance, and how far.

C. 4. General proofs out of Statutes, that sundry other causes besides Testamentary and Matrimonial, are of Eccle­siastical cognizance.

C. 5. That Suits for Tithes of Benefices upon voidance or spoliation, likewise that Suits for Tithes, Oblations, Mortu­aries, and Pensions, Procurations, &c. are of Ecclesiastical Jurisdiction, is proved by Statutes especially.

C. 6. That Suits for right of Tithes belong to the Ecclesia­stical Jurisdiction, and how far, is shewed out of the books and Reports of the Common Law; so of places of Burial and Church-yards, and of Pensions, Mortuaries, Oblati­ons, &c.

C. 7. Of right to have a Curate, and of Contributions to Reparations, and to other things required in Churches.

C. 8. Proofs in general, that sundry crimes and offences are punishable by Ecclesiastical Jurisdiction, and namely Idola­try, Heresie, Perjury, or Laesio fidei; and how far the last of these is there to be corrected: also of disturbance of Divine Service, or not frequenting of it, and neglect of the Sacra­ments.

C. 9. That Simony, Usury, Defamation or Slander, beat­ing of a Clerk, Sacrilege, Brawling or Fighting in Church [Page 16] [...] [Page 17] [...] [Page 18]or Church-yard, Dilapidations or waste of an Ecclesiastical Living, and all Incontinency; are punishable by Ecclesiasti­cal authority, and how far.

C. 10. Several other matters reckoned in this tenth Chap­ter, as ordeining of real Compositions, and disannulling of them, suspension ab ingressu Ecclesiae, &c. Interdiction of a Church, Sequestration, Excommunication, Parish-Clerks fees, Goods due to a Church deteined, Blasphemy, Idolatry, Apostasie from Christianity, violation and prophanation of the Sabbath, Subornation of Perjury, Attestation of a wo­mans chastity, Drunkenness, filthy speech, violation of a Sequestration or Induction, hindering and disturbance to car­ry away Tithes, enjoyning of Penance corporal, contempt of obeying the Decrees of the Ecclesiastical Judge, Fees due in Ecclesiastical Courts, Curates and Clerks wages, Forgery in an Ecclesiastical matter, as of Letters Testimonial, of Or­ders of Institution, burying of excommunicate persons, com­municating with excommunicate persons, frequenters of Conventicles, digging up of Corps buried, and generally for any matter Ecclesiastical indefinitely, by the Articuli cleri, may be cited: All these are of Ecclesiastical Jurisdiction; and proofs that any Subjeet, Lay or other, may be cited in any cause Ecclesiastical.

C. 11. That Lay-men may be cited and urged to take Oaths in other causes then Testamentary and Matrimonial.

C. 12. The grounds of the opinions to the contrary exami­ned and confuted.

C. 13. That judgment of Heresie still remaineth (at the Common Law) in Judges Ecclesiastical, and that the Proviso touching Heresie in the Statute 1 Eliz. 1. is onely spoken of Ecclesiastical Commissioners thereby authorized.

C. 14. That by the Statute Her Majesty may commit au­thority, and they may take and use for Ecclesiastical causes Attachments, Imprisonments and Fines. Herein he writes also how the Law was at that time.

C. 15. That an Ecclesiastical person may be deprived of his Benefice without indictment or prosecution of party.

C. 16. That after forty dayes an excommunicate person [Page 19]may be otherwise punished then upon the Writ De Excom­municato capiendo, and that the said Writ may and ought to be awarded upon contempts arising on other causes Ecclesiasti­cal, then any of those ten crimes mentioned in the Statute 5 Eliz. 23.

C. 17. Of a Prohibition, what it is, where it lyeth not, and where it doth, and how it ceaseth by a Consultation, and of the Writ of Indicavit.

C. 18. An Analysis or unfolding of the two special Statutes touching Praemunire, with sundry questions and doubts about that matter, requiring more grave resolution.

Then in the second part of his Apology the Doctor sets forth his Proofs, together with his Answers, to the ob­jections made against the manner of practice of Jurisdi­ction Ecclesiastical by those that oppugn it.

C. 1. Of the distinction of Offences, and several kinds and ends in punishing them, with the necessity of punishments.

C. 2. Of two sorts of prosecution of crimes and offences, viz. by a party, and of office; the practice of them in Scrip­ture, and in the several Courts of this Realm.

C. 3. Of the sundry kinds of objecting crimes by a party mentioned in the Civil Law, as by reason of a mans publick charge and function; also by way of Exception, Supplicati­on, Complaint, Delation and Accusation. The true signifi­cation of the word Accusatio, its divers acceptions, definition and exposition thereof, with some reason of the frequency of Accusation in Courts of the Civil Laws in former times, is also declared.

C. 4. That the prosecution of crimes by way of Accusati­on, is in most places forbidden, or grown into disuse. The reasons hereof be, partly the danger to the Accusers, and part­ly the hatefulness of that course. Therein also is disputed, whether all Accusation be unlawful, and certain points deli­vered to be observed by all them that will accuse others.

C. 5. Of the several acceptions of the word Officium, the signification of the words Inquisitio, Questio, crimina ordinaria & extraordinaria, the reason why enquiry by office came in place of Accusation. Of Enquiry in general and special, of [Page 20]Enquiry special, Ex officio nobili sive mero, mixto & promoto, and of the privileges of proceeding ex mero officio above the other.

C. 6. Of Denunciation, a special means of stirring up the office, of the manifold use thereof on the other side the Sea. The general acception of that word, and of four kinds of De­nunciation, how they differ one from another, what is requi­red in them, and when a Denouncer is to be condemned or excused of expences, and what course of dealing against crimes and offences, is holden both in Courts of the Ecclesi­astical Commission, and in ordinary Courts Ecclesiastical of this Realm.

C. 7. That the Civil and Canon Laws allow sundry means to ground a special Enquiry of office against a crime, besides Accusation and Presentment: therein is also conteined an Answer to a supposed Rule, and declared how from general they descend to special Enquiry. And that besides those two, either a fame, or clamosa insinuatio, or private judicial Denun­ciation, or Canonical Denunciation, or Indicia, or taking with the manner, or other notoriety of the fact, or impeachment by some of the Complices, or collusion of the accuser, or the not objecting in due time, or when the Enquiry tendeth but to a spiritual punishment, may severally any of them serve to warrant such enquiry, with some observations touching the nature of most of these.

C. 8. That to proceed sometimes against an offence, other­wise then upon Accusation or Presentment, or then upon an Appeal or Indictment, (which two at the Common Law have respective correspondence unto the two former) is no di­verse, much less any contrary or repugnant course to the Laws, Statutes and Customs of this Realm. This is proved by Common Law, Statutes, and practice in proceedings in­formative and punitive, with answer to certain objections made to the contrary.

C. 9. How the second opinion (here to be treated of) is, that no Lay-person may be cited of office in any cause but Testamentary or Matrimonial; and that the drift of that opinlon is against proceeding of office in matters criminal. [Page 21]The necessary use and equity of proceeding (somtimes) cri­minally by the Judges office in Courts both Temporal and Ecclesiastical.

C. 10. Conteineth an Answer to some further objections, made against the conveniency and reasonableness of proceed­ing against crimes, of office.

C. 11. That the Laws of the Realm do use Enquiries and Proceedings ex officio, that they allow it in Courts Ecclesiasti­cal, with answer to some objections that are made to the contrary.

C. 12. Is set down a Reply to the Note-gatherers answers, given to certain reasons, that have been made long ago, for to shew the like course to be also practised in Temporal Courts; and an answer to his reasons brought to prove, that in proceeding of office there is some contrariety unto the Laws of England.

C. 13. That the Enquiry ex officio against crimes, is allow­ed both in Civil and Temporal Courts, and in Ecclesiastical also, by the two Laws Canon and Civil.

C. 14 Conteineth an answer to such objections, as upon the Civil or Canon Laws are brought against all proceedings of office in causes criminal, by the Treatisor and the Note-gatherer.

C. 15. Enquiry and proceeding of office, without an accu­ser, and grounded upon some other of the means, afore pro­ved sufficient to enter into such enquiry, is approved by sun­dry examples of Scripture.

C. 16. An Answer is made to such objections, as out of Scripture or Ecclesiastical Writers, be made against criminal proceeding of office, by the Note-gather and others.

In the third part he concludes upon the whole matter, for which his Apology was made.

C. 1. Of the lawfulness of Oaths. What an Oath is, and the reason or original formal cause of the use of Oaths.

C. 2. An Answer to certain doubts made concerning oaths, as namely, why in Scripture God is said to have sworn, how by Oath he is said to be called to Witness. An Oath no tempting of God, but a part of his Worship. Why never­theless [Page 22]some are repelled from taking Oaths. Whether Adjuration be lawful. After whose meaning an Oath is to be understood. Whether every promissory Oath be simply to be kept. Whether an Oath may be dispensed with, and how far, and whether a Christian may by mutual Oaths, con­tract with him that sweareth by false gods.

C. 3. Division of Oaths according to the outward form of taking them, according to the matter and inward form of them, with plain description of every kind of Oath.

C. 4. That the Ceremonies used in taking and giving of corporal oaths, with laying hands upon the Bible or Testa­ment, and swearing by the Contents of it, are not unlawful.

C. 5. The true issue of the next Opinion in question. Two sorts of crimes and offences prohibited. In what causes an Oath here spoken of may not be ministred, and the manifold convenience and necessity of an Oath, sometimes to be mini­stred in a cause criminal and penal unto the party, with some few objections touching inconveniences thereof, answeted,

C. 6. That Oaths of men touching matters damageable, criminal, and penal to themselves, are urged and acted by Temporal Courts, and by the Laws of this Realm.

C. 7. Wherein are contained Answers to such Objections and Reasons, as be made for proof of a contrariety or repug­nancy in these Oaths, unto the Statutes, Laws, or Customs of this Realm, and a Reply to the Treatisours Answers made unto certain Objections, supposed likely to be made in justi­fication of this kind of Oath, by the Temporal Laws.

C. 8. That ministring of such Oaths, is by the Law of the Realm, allowed unto Judges of Ecclesiastical Courts, and some few Objections made to the contrary answered.

C. 9. That such Oath touching a mans own crime is al­lowed both by the Canon and Civil Laws; how far, and in what sort, and that the like is establish'd and thought equal, by the Laws and Customs of sundry other Nations, as well ancient as modern.

C. 10. An Answer to some Objections pretended to be made against this kind of Oath from the Laws Civil and Canon.

C. 11. That not only such an Oath may be taken, but also being by Magistrates duly commanded, ought not to be re­fused, is approved by Scriptures, by practice of the Primitive Church, and of late times; together with a Reply unto cer­tain Answers made unto some proofs here used.

C. 12. An answer unto such Objections, as be pretended to be gathered from Divinity, Divines, and from the exam­ples of godly men against ministring Oaths unto parties in matters of their own crimes.

C. 13. Four several opinions of the Innovators against the parties taking of an Oath in criminal causes, with Answers also unto their Reasons and Objections.

C. 14. That a man being charged by authority to discover his knowledge touching some offence, which his Christian brother is supposed to have done, is bound to reveal it, though it may breed trouble and punishment to his broaher, and the Reasons to the contrary are answered and refuted.

C. 15. their Arguments are answered, that condemn the ministring and taking of an Oath, as unlawfull, because they have not distinct knowledge given unto them of every parti­cular before the taking of it, and the like course by Examples, is upproved lawful and godly.

C. 16. That after the party hath answered upon his Oath, it is neither unusual, unlawful, or ungodly to seek to convince him by Witness, or other trial, if he be suspected not to have delivered a plain and full truth; and somewhat also in appro­bation of Canonical Purgation, with answers to the Treati­sors Objections against them.

CHAP. IV.

By the late Act, the manner of proceeding in Ecclesiasti­cal Courts, is not altered, but left as it was. A Summary relation of what Doctor Cosens in his Apology hath asserted and made good by Gods word, the practice of the Primitive Christians, the opinion of the Fathers, the Laws Canon and Civil, and the Laws of the Land allowing and warranting them. The like practice at Common Law, and at Geneva and other places, pre­tending strict Reformation.

AS to the proceeding Ex officio, or otherwise in the Eccle­siastical Courts, according to Law and the due former practise, nothing in that late Act is said against it; and there­fore implicitly, at least, it is allowed and approved. Rati ha­bitio mandato aequiparatur, 'tis a Rule of Law. The Law in that case remains at it was before, nothing need be said in justifi­cation thereof, but only as touching the Oath Ex officio, or other Oath, not to be administred as there, and touching Purgation.

Touching the Proviso's in that late Act, that which forbids Ecclesiastical Judges, to exercise any power, &c. as there; and that other Proviso that forbids them to tender, or admini­ster unto any person whatsoever, the Oath usually called the Oath Ex officio, or any other Oath whereby such person to whom the same is tendred or administred, may be charged or compelled to confess, or accuse him or her self of any crimi­nal matter or thing, whereby he or she may be lyable to any censure or punishment. I say, touching the former Proviso he hath, I conceive, given full satisfaction in that his Apolo­gy, in answering to the objeetions made in his time there­about. Therein also he clearly and fully justifies the pro­ceedings of Ecclesiastical Courts in general and particular cases. And to that other Proviso touching the Oath Ex officio, or any other Oath; and touching Purgation, as in that Act, [Page 25]I humbly conceive, salvo meliore judicio, he fully and clearly evinces it, that the law and practice thereof was just, to ten­der and administer the Oat [...] ex officio, or at the instance of a party, for the finding ou [...] or Simony, Adultery, and other crimes and deeds of darkness, difficidimae probationis, so that evil may be removed from the Land. Alwayes provided that there was just cause for the Ecclesiastical Judge so to tender and administer that Oath; that is, that there was, before such oath was so administred or tendered to any party, due proof made of a common fame, that the party was guilty of such crime, touching which such oath was to be ministred; or at least there was, as in some cases, denunciatio Evangelica, or canonica, or insinuatio clamosa, or other sufficient indicia prae­sumptionis or suspicionis, to induce the Judge to tender that oath; and so the practice alwayes was, and if it ever was otherwise, (as I believe that will scarcely be proved) it ought not to have been. He sets down the due cautions that ought to be had, when it is very probable that the person to whom that oath is tendered, will forswear himself, then to forbear it; and that in capital crimes, to the danger of loss of life or limb, it is not the practice in any Courts to administer such oath, for that very fear of Perjury; it being too much to be feared, that too too many would rather forswear them­selves then endanger either life or limb, (though in some pla­ces of Scripture it appears, that even in such cases such oaths have been administred.) The Father of lies could speak truth in such a case,Job 2.4. Skin for skin (or rather as some learned in the Hebrew would have it) Skin after skin, and all that a man hath will he give for his life. There also he shews the weak­ness and inconcludency of that vulgar Saying, Nemo tenetur seipsum prodere or accusare, being indeed the trite and general objection. That a man is not properly said to betray or ac­cuse himself, when as publick fame, or other sufficient indicia, presumptions or suspicions have accused him, these are in­stead of the accusers: and it seems dis-ingenuous at least, in those especially that pretend to Learning, and have or might have examined the Canons, and Ecclesiastical Laws in that point, to urge one piece of a sentence and leave out the rest; [Page 26]where they found or might have found that sentence, Nemo tenetur seipsum prodere or accusare, they did also or might have found that which follows in that sentence, viz. Sed proditus per famam, tenetur seipsum ostendere, & innocentiam suam pur­gare. Mat. 4 6. The accuser of his brethren cited Scripture to our Savi­our; sayes he, He shall give his Angels charge concerning thee, and in their hands they shall bear thee up, &c. leaving out that in the Text that follows after these words,Psal 91.11. He shall give his Angels charge concerning thee, that is, to keep thee in all thy wayes; which alters the case. That note or comment upon the Law, (or if they will needs call it a Rule or Maxime it matters not) Ne­mo tenetur seipsum prodere vel accusare, sive propriam turpitudi­nem revelare, is to be understood in crimes simply secret, and which are no wayes disclosed or come to light. But when such secret sins are by some of those wayes, that open a way to enquiry of a person supposed criminous, come abroad, and so in some sort are manifested; then those former rules cease, and that of St. Chrysostom comes in, Homil. 31. ad He­braeos, Non tibi dico, ut te prodas in publicum, neque apud alium accuses but upon such disclosing, then Proditus tenetur seip­sum ostendere, & innocentiam suam purgare. This is for the a­voiding of scandal, and that the party may be reformed. Therefore doth Aquinas himself reason thus, Thom. 2.2. Cum quis, saith he, secundum ordinem juris à judice interrogatur, non ipse se prodit, sed ab alio proditur, dum ei necessitas respondendi im­ponitur, per cum cui obedire tenetur.

As for tendering the Oath to the party where there is an accuser, that is not done upon the crime till the fame be pro­ved, or sufficient presumptions, circumstances, indicia, or su­spitions, or semiplena probatio, the oath of one sufficient wit­ness at least, to induce the judge to give that oath, though pe­nal in some sort to the party.

This practice he proves consonant to Gods Word, to the practice of the primitive Christian, and the opinion of the holy Doctors and Fathers of the Church; as also consonant to the practice of Geneva, and other at least seemingly strictly reformed Churches: and to the practice of all Christian Na­tions, and other Nations not Christian, guided onely by right [Page 27]reason and the Law of Nature: as also that by the known Laws of this Land, the Ecclesiastical Judges were so warran­ted and commanded to give that oath; the Ecclesiastical Laws and Canons being full and clear in that point. Then he shews how the proceeding at Common Law in this Land is the same, not onely in some criminal but civil causes also. For private debts 'twixt private persons penal to them, as in Wagers of Law, sometimes for a greater, sometimes a lesser debt, 'twixt two private parties, with the parties oath that is accused, and his Compurgators too; even as in Pur­gation Canonical in the Ecclesiastical Courts, together with other Purgation or Decisory Oaths at Common Law. Pro­ceedings in Chancery, with the several species and kinds of cases, wherein such Oaths at Common Law are tendered, being very numerous, and are by him cap. 6. in the third part of his Apology, and other parts thereof reckoned up, and ful­ly set forth. And if this may be done in civil causes, ought it not much rather be allowed the Church in criminal, which works onely, medicinaliter, to reformation? the Common-wealth works ad poenam, the Church not so; this to the a­mendment of the party, to bring him to a voluntary submis­sion, and to take away the offence and scandal which he hath justly given to his Neighbour, and to lead a new life; that (perhaps) to the loss of liberty, corporal punishment, or livelyhood at least, besides the infamy of being convicted of doing dishonestly and unworthily.

CHAP. V.

That it is consonant to Gods Word to give such an Oath Ex Officio, or otherwise.

EVery soul is to be subject to the Higher Powers. Rom. 13. This is to be understood in all commands not contrary to Gods Word;Acts 5.29. in such comes in the Apostles rule, It is better to obey God then man. That the giving such an oath is not contrary to Gods word: An oath duly imposed by the Magistrate, necessitates the Subject to take it, as appears by the com­mandment of God himself, Thou shalt the Lord thy God, and serve him, and shalt swear by his name. The like is given by the Lord in the Prophet Jeremy, O Israel, thou shalt swear, The Lord liveth in truth, in judgment and righteousness. Joshua gave charge to all the Magistrates of Israel, Jer. 4.25. that They shall not make mention of the gods of other Nations, nor shall cause to swear by them. Saul did not onely charge the people with an oath,Josh. 23.2, 7. but made them vow with a curse not to eat any food that day till night: therefore one of them reported to Jonathan, Sauls son,1 Sam. 14. That his father had made the people to swear. Some would cavil at this, as but an Adjuration, and would without reason diffe­rence that from an Oath; but in that Chapter, 1 Sam. 14. it is four several times called an Oath. The wise King Salo­mon imposed an oath upon Shimei in a cause capital to him, Did not I make thee (saith he) swear by the Lord, &c. 2 Kings 42. So King Saul urged David to swear unto him. 1 Sam. 24. for a private offence on­ly between Neighbours, King Salomon testifieth that a ne­cessary oath of Purgation may be required by the Complai­nant,3 Kings 8. When a man shall trespass against his neighbour, and he lay upon him an Oath to cause him to swear, &c. 2 Chron. 34. King Josias made a covenant and vow, and caused all that were found in Jerusalem and Benjamin to stand to it. Neh. 5.12. Nehemiah caused the Priests to swear, &c. It is assigned for a special mark of a Godly man, To swear to his neighbour, and not to disappoint him, though it be to his own hinderance. Num. 30.3. Psal. 15.4.

Abraham said thus to his servant, I will make thee swear by [Page 29]the Lord God of the Heavens, &c. this in a private cause,Gen. 24.3. much more a Magistrate in a cause wherein the Commonwealth or Church of God hath Interest, to have it sincerely dealt in. Jacob moved Esau to the sale of his birthright,Gen. 25.33. and took an Oath for confirmation of it. A man supposed to have born false witness against another, is thereof brought in question,Deut. 19.17. and re-examined; if it be objected, it was not upon oath, by consequence of reason it must be upon oath, when what he has said before upon oath is re-examined, and this in a case very penal to him. The oath of Adjuration is very frequent in Scripture, Prov. 29.14. about not declaring cursing which he heard. By the HistoryJud. 17.1, 2. of Micah, as we are1 Cor. 10.3. bound to do all to the glory of God; so it belongeth to the glory of God for a man, by due presumptions (burdned with a crime, and charged by the Magistrate) to confess of himself; as appea­reth by the history of Achan. The lot fell upon him, but this was but an inducement to ground a special Inquisition against him; if hereupon he might have been executed, Jo­shua needed not to have required any further confession of him; but he goes further with a most solemn Adjuration,Lev. 5.1. (in those dayes used for an oath, the Hebrew word signifying both, and being translated sometimes juramentum, and some­times adjuratio. Son, give glory to the Lord God of Israel, &c. Josh. 7.9. albeit the punishment was capital, Ezra adjured the Chief Priests, &c. Calvin in his Institutions gathereth,Ezra 10.5. that Achan took an oath. When a man is found secretly murdered in the field, and the murder is not known, nor suspected; yet all the Elders of the next City thereunto should use certain Ceremonies, and then swear, That their hands have not shed this bloud, nor their eyes have seen him that shed it. Deut. 21. In Leviticus a certain Sacrifice is to be made for certain sins, amongst which this is one, as Arias Montanus translates it out of the Hebrew; If a soul, or a man shall have sinned, and have heard the voice of an Adjuration or Oath, &c. That which is here said,Lev. [...]5, [...]. if he have heard the voice of an Oath: the Geneva Translation offereth it thus in the Margin, as if it were nearer to the Hebrew then the other in that Text, viz. If the judge hath taken an oath of any other. Exod. [...]. When a man delivers money of stuff on trust to be kept [Page 30]by his neighbour, if it happen to be imbezelled away, and the thief be not certainly known or found, by the Low of God be must take a necessary oath of purgation and enquiry. The same also is a little after established by God touching any quick goods happening to be left in deposito. Ibid. v. 10. A sacrifice of Atonement for such a sin of Perjury is prescribed, If any do sin (saith the Lord) any deny unto his neighbour, &c. If a man be moved with a jealous mind against his wife,Num. 5.14. she is not onely to be charged with an oath, but to have further tryal to drink the bitter waters.Jer. 38.14. When the Prophet Jeremy was charged by the King in a generality, to answer that which he would aske him, the Prophet promiseth so it should not be capital to him, he would answer it. Whether upon oath or not oath, (for before God 'tis the same) no doubt he answered the truth.Jer. 37.13. The same Prophet, when he was charged with a particular high crime, refused not to answer, or bid them prove it, but roundly answers it.2 Kings 5. So Elisha examineth Gehazi his servant.Gen 43.3. Joseph in AEgypt gave an oath to his brethren.Ezek. 7.13. Zedekiah took an oath of Subjection, and is blamed and punished for breaking of it.1 Sam. 21.2. The oath given to the Gibeonites was to be kept, and the violation of it punish­ed. For the manner of proceeding, or the cause of questio­ning, we see many instances: First, in flagranti crimine, John 8.4. if a party be taken in the manner, as we say; or the fact is mani­fest: asNum. 25 8 Zimri's was.Deut. 21.3 Or though the fact be manifest, the person committing it is unknown, or the question is of the person, the fact being unknown; as inJohn 7.18. Achans case. Or by indicia, suspected signs; soGen. 3.8. Adam hiding himself: So againstGen 4.6. Cam, Abel not appearing: Adam impeacht Eve, and Eve the Serpent, and both were punished upon it. Or upon infamy and cry,Gen. 18.10. The cry of the Sodomites being great, I will descend, saith the Lord. And such kind of Enqui­ries are made both in the Law,Deut. 17.4. If a report shall come to thee, or thou shalt hear; as also in the Gospel, as against the incestu­ous person,1 Cor. 5.1. It is reported. Or by suggestion or complaint, as inJob 1.11. Jobs cause, where the Devil was Accuser. Joseph one­ly upon suspicion gave his brothers the oath. Evangelical denunciation, as Mat. 18.7. when Church or state are in [Page 31]danger, as in the Valley of Achor, that is against the troublers of Israel, so signifies the word Achor. When Peter and John were examined in the great Council, By what power,Acts 4.7.or in what name they had done that miracle; Peter full of the Holy Ghost answered plainly and truly, though it might have been capi­tal to him. What spirit are they of, who being required by lawful Authority to answer in matters not capital, yet will not answer at all? for upon a mans own confession judicial, though not upon oath, he may be equally convicted. In the proceedings against St.Acts 6. Stephen there were no Accusers in truth, but those who by Subornation denounced him to the Priests, and who are twice-called witnesses, because they de­posed against him; yet he refused not to make answer, though capital to him. When the Captain asked St. Paul, Acts 22. whether he were not that AEgyptian that made a Sedition, &c. he answered directly and denied it. Likewise the same Saint Paul, in all other his conventings before Authority, mentio­ned in the Acts (even at the suit and accusation of a p[arty) refused not particularly and truly to answer to all that was objected.Acts 4.25, &c. And all this is done to the sifting out truth, and punishing crimes, either truly so, or at least thought to be so; and criminous persons are questioned, as well of the fact, as circumstances or fame;Gen 3.9. Hast thou eaten of the fruit of the ferbidden tree? So the Princes questioned Baruch about Jere­miahs book,Jer. 36.17. Tell us, how didst thou write these words? SoEzra 10.11. Esras examined the questioned persons concerning their own fact. So theActs 23.20. High-Priest, having committed Saint Paul, examined him further, for oftentimes Accusers (as the Heathen could observe) fall off; all cannot, some will not accuse; what then? many crimes, being the deeds of dark­nesse, cannot beEph. 5.11. revealed;Prov. 16.5. Because hand is in hand, and they will not bewray themselves. Because the name of Doeg founds harsh, and to come forth to accuse a man is accounted poor and odious, a matter of cost, danger andProv. 25.8. Infamy; must Villany therefore be hid, and scattered abroad, and get strength, till they break out to the destruction of the Com­monwealth? Or because none can or will (for 'tis all one, whether one will not accuse or cannot accuse) therefore it is [Page 32]not lawful to question? and without an Oath 'tis to little purpose; therefore God commands that way of Adjuration or giving an oath.2 Kings 22. So the King adjured Micheas, Mat. 26.93. so the High-Priest our Saviour, and both of them answered. But should any question Adjuration, even a clear oath was lawfully given even to the actor; as Exod. 22.8. 1 Kings 8.3. and therefore more then permitted to the Magistrate. For surely it were hard, if every private man might require an oath of the questioned, and not the Magistrate: should it be lawful in the cafe of a Pawn, and not of a Kingdom? An oath is an end of controversie,Heb. 6.16. saith St. Paul; then an oath to be taken for that end. In a case Matrimonial, which is meerly ecclesiastical, Interrogatories were administred with oath, (as in a cause of Incontinency, Num. 5.) and the proceedings being by Enquiry, without any accuser at all. And this which is to be noted in the case in Esdras, Esdras 1.8, 9. they are no wayes forced to it, but desire to take their oath first, and to be exa­mined after; then which there is no cause more suitable, then to the proceedings in Ecclesiastical Courts before the Passing of the late Act, and against which the Innovators heretofore used to take exceptions. In some of these above­mentioned instances, we see how oaths were administred e­ven in capital causes, much more may they be where there is not that danger, nay, no danger of losse of Goods, Liberty, or any other losse; but onely for a medicine to the soul, for reformation of manners, and taking away scandal and of­fence given. They were questioned too, we set, upon small su7spicions, signs, presumptions, or any other causes of questi­on, nay, nothing at all as to the person questioned, upon whom no true colour of suspicion lay, (something like our Coroners proceedings in some cases) but onely a fact was committed, that was apparent, whereof it was possible that he was not guilty, as in the case of a person found slain; then much more ought it to be upon great suspicions, presumptions, or publick fame thereof proved. This being thus by Gods Word, in the next place we may look into the practice and opinion of the primitive Christians hereupon.

CHAP. VI.

That the Opinion and Practice of the Primitive Christi­ans, and the Fathers of the Church, was to administer such Oath Ex officio, and upon Accusation, and for Purgation Canonical, with the practice at Geneva.

IT is well said by an ancient and learnedCromatius in 5 Mat. Facit. canon. 36. con­cil. Tolet. quart. Writer, Dominus inter juramentum & loquelam nostram, nullam vult esse differen­tiam. And Aquinas saith,Thom. 2.2. qu. 69. art. 3. If he which is brought into question, and interrogated by the Judge without his oath, shall answer untruly, that therein he sinneth deadly. The old Christians in the primi­tive Church were far from such shifts of answering dangerous questions propounded to them by Heathen Magistrates, or from answering untruths to them. Tertullian is herein very plentiful, especially in his book called Apologeticon: A Chri­stian, saith he, if he be indicted or denounced to the Magistrate, be rejoyceth in it; if he be accused, he propoundeth no defence; when he is interrogated, he mostwillingly confesseth; and when he is condemned, he giveth them or God thanks. Tertul. in Apol. c. 1. And much more hath Tertullian to this purpose. St.Aug. serm. 28. de verbo Apost. cap. 6. Augustine doth plainly esta­blish and allow of Oaths taken concerning a mans open of­fences, being indeed such also in their own nature, If perhaps (saith he) thine Oath he urged, (meaning a Decisory oath, be exacted of thee by a private person) say not, I will not swear, for it cometh of evil which though doest, but yet of his evil that exact­eth it of thee; insomuch as though hast no other means but thine oath to purge and clear thy self of the matter in handling. Aug. bid. c. 10. In another place he speaks and allows of oaths taken in way of purgati­on of one suspected for theft: and in another place he sayes and approves of the same practice at Millain; Aug. ep. 137. this was in a civil cause criminally moved, and for theft: a crime, though not simply capital by the Civil Laws. In another place; In denouncing others (saith he,Aug. in qu. Lev. speaking of Denunciation of faults to the Magistrate) this moderation is alwayes to be used by us, that we relate it unto such which may rather help than hurt him, (in case the party shall swear falsly) either by correcting him, or by [Page 34]deprecation to God for him, so that he will by confessing his fault ap­ply this remedy unto himself. Chrys. hom. 16. ad pop. Antioc. St. Chrysostom alloweth of Deci­sory Oaths or Wagers of Law, and testifieth that such neces­sary oaths were in those times imposed to exact mens confes­sions, and whether they had stollen some certain thing or not. This he allowes touching meer crimes in their own na­ture, and that upon the instance of a Plaintiff particularly in­terested but in his goods and chattels.

This kind of oath was not onely allowed in the old Church, but commanded to be put in use (as lawful and con­sonant unto Gods Word) against persons convented and had in suspicion, even in one Church, which the most and hottest oppugners of this oath do reckon to be best, yea, and almost the onely Reformation that may rightly be so called: For in the Discipline of France, concluded of in the national Sy­nod there, 1559, 1561, 1563, 1565. it was thus declared; The faithful may be constrained by the Consistory to tell the truth, so far forth as it derogateth nothing from the authority of the Magistrate.

They may be constreined, The Ecclesia­stical Senate or Consistory, act. 12. say they, but there is no compulsi­on, but either Civil, which they will not arrogate to them­selves, as torture or racking, imprisoning or fining, &c. or else by the parties oath, which upon pain of Perjury, if he once swear, or of conviction if he will not, doth as it were constrein a man to say truth. And that an Oath is meant by the Canon of the French Church, we are taught both by the History of Camperell a French Minister at Geneva, as also by that of those who danced in Widow Balthazars house there. Camperell was appointed by the Consistory of Elders there,Inter epist Cal­vin. in folio pag. 421, 422. to be examined upon his Oath upon certain Interrogatories, whereof also two concerned what he had in his very purpose and intention of mind.Calvin. Farello pag. 64. epist: in folio. The Dancers, because at first they denyed it, were put to their corporal oaths, to declare the whole truth of that merriment. And all dancing there is held as an offence and grievous crime, as appears by the Ordinan­ces of Geneva, and by the very last frame of Discipline con­cluded 1571. by the French Churches.

For Purgation Canonical, as it was used in the Ecclesiasti­cal Courts of this Kingdom, in a word 'tis the same in these [Page 35]Courts in a criminal cause, as at Common Law a Wager of Law is in a civil cause; differs no more then thus, this is touching our Lands or goods, that touching our Good name and Credit. It is so far from being condemned by good and godly Bishops in ancient times, that by whole Councils it hath been prescribed: Let a Lay-man, saith one Council,Concil. Tribur. canon. 21. if need be, purge himself by his Oath, and let a Priest by the consecra­tion of the holy Sacrament, be interrogated. And another Coun­cil thus, Let a Priest, if he can, purge himself of the crime with seven of his Order, and a Deacon with three. Ivo. lib. 5. ex concil. Agath. So was it decreed by a third Council, If a Priest or Minister be infamed amongst his charge, and it cannot be proved before the Bishop by witness, let him be suspended untill be perform due satisfaction, lest the faithful people be scandalized: But, as our Elders have taught, then is the satisfaction due and orderly, when according to the Canons, or as the Bishops shall judge fit, be joyneth unto him seven Compurgators, and swears by the holy Gospel laid afore him, that he hath not com­mitted the crime laid unto him: When he is thus purged, then let him again freely execute his office. Ivo. ibid. ex concil. Herden. And in another Council we find Purgation prescribed for theft, and also for Adultery; Concil. Worm. and according to the prescriptions of these Canons and many o­thers that might be alledged, examples of sundry ancient Bi­shops in the Church, that have themselves made their own Purgation, for avoiding and removing scandal and offence. Sixtus the third, and ancient Bishop of Rome, 12 qu. 4. c. Mandastis. but upon the ac­cusation of one Bassus, did willingly make his Purgation up­on his oath in a Council. And so did Leo, Ivo. Carn. l. 5. another ancient Bishop of the same See, purge himself with twelve Bishops. Gregory the Great enjoyned untoGreg. ep. 23. ad Iustin. Presb. Leo, Id. ep. 8. l. 2. Memius andId. ep. 8. l. 7. & ep. 79. Maximus, three Bishops, to clear and purge themselves of several crimes by their oaths, whereof the last was for Simo­ny. Innocentius also caused the Bishop of Trent to purge him­self likewise of the like crime of Simony. And what be the Oaths touching Goods stollen or imbezelled, which were left with a man upon trust appointed in Exodus, Exod. 22.7, 8. and those in Sa­lomons Prayer at the Dedication of the Temple; other than oaths of Purgation of a crime,2 Kings 8.31. imposed by the party having an interest?Lev. 6.2. Likewise the oaths mentioned in Leviticus con­cerning [Page 36]goods denyed, that are pretended to have been left in deposito; or goods gotten by robbery or violent op­pression, or casually found after they were lost, yet by the fin­der denyed; are they not for purgation and clearing of the party from the crimes imputed? and in some respect also de­cisory of the whole controversie, unlesse found proofs touch­ing the true guiltinesse of the party may afterwards be found out and used?Num. 5 14. The Oath of Jealousie taken with a further so­lemnity of Purgation, and imposed by the Priest, a publick Magistrate in that behalf, is an oath not onely of Enquiry, but of Purgation, to the woman denounced for suspicion of Adultery by her husband.Deut. 21.8. Lastly, the oath imposed by Gods Law, upon the elders of the City scituated next unto the corps of a man which is found secretly murdered; is a plain and most direct oath of Purgation, even in a crime (in his own nature) evil and capital to the offendors. For justify­ing of the Oath Ex officio, and at the instance of a party, and of Purgation with Compurgators, all in a manner as above, the authority of the Civil and Canon Laws is manifoldly extant; but that even the oppugners doubt not of, nor deny, but reject them, as in their conceit unreasonable and ungod­ly; and therefore 'tis needlesse to name them, being so easie to be seen, and obvious to every common eye. The recei­ved use of them, amongst most Civil Nations, make it to be little lesse than Jus gentium, and therefore by moderate and grave men not to be sleighted.

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.

TO prove this in Christian Commonwealths, the Canons of the church, and the practice thereof in all such for­reign Christian Nations evince it; then which nothing is more manifest; To cite the particulars, at leastwise to recite them, would be voluminous; scattered all along the Civil and Canon Law. Dr. Cosens, in his third part of that Apo­logy, chap. 9. quotes many of them, as they were used in the Roman Empire, before Constantines time as well as after. By the customs of Hungary there be many and long Constituti­ons made for the taking such Oath, and of the manner of it.Consuetud. Hungar: de ju ram purgat. It is testified also to e the usual practice of all the Domini­ons in Italy, that the party convented in Temporal Courts,Marian. in c. qualiter qu. 84. Casonus in Pract. fol. 8. num. 3. whether by way of Accusation, or at the Prosecution of ano­ther, or by way of Enquiry, Ex officio judicis, must swear to declare the truth, in all those things that shall be asked of him, even of the crime it self. This is much stricter than in the Laws of England, Ecclesiastical or Civil.

For Merchandizes to be carried out of France, Ordonances du France, liv. 2. tom. 2. tit. 14. du droit derefue have passage, &c. pag. 895. the Mer­chant must under his hand particularize the commodities with the weight and measure thereof, that there be no de­ceitful or forbidden Merchandize there, and upon the truth thereof he is to swear.

In another Ordinance there, the Plaintiffs swear to the truth of what is in their Bills,Ordonance de France premier an. 1539. ar­tic. 38. and the Defendants answer up­on oath, to confesse those things which be within their know­ledge. In other matters criminal it is reported to be the cu­stom of France, Marcus deci­scor 674. for the party Defendant onely to make faith when they are objected, and he is thereupon to answer, whe­ther he hath committed them or not; but he is not to take a corporal oath,Grand Constu­mier entre les constumes du Normandy. betwixt which two (before God) there is no difference. But by the custom of Normandy, the Appealed of [Page 38]murther must upon his oath (holding his Adversary by the hand) solemnly swear whether he hath committed such fact or no: and Stamford affirmeth the Law of England to be the same in like case of Appeal.

Amongst Nations of far elder times (in most flourishing Commonweals) oaths were taken by Plaintiffs and Defen­dants,Ex Polluce Si­gonius l 4. c. 4. de repub. Athen. in all causes whether civilly or crminally moved. So among the Athenians, besides a summe deposited to be forfei­ted by the failer. When Aeschines accused Timarchus of a foul crime perpetrated upon him by one Misgolas, Misgolas was to be put to his oath.Aeschines con­tra Timarchum: pag 7. Grae è. Plato commends Rhadamanthus, that strict Justicier, feigned by the Poets (as Aeacus and Mi­nos also were)Platolib. 12. de legibus. to be a Judge in another world over Ghosts deceased, for his justice; I say, he commends him for exact­ing an oath in every cause in controversie. Aristotle, Plato's Scho­ler,Arist. Polit. lib. 3, 10. testifieth and commendeth the like course. The history of Glaucus, an ancient Spartan, that most just people of Greece, evidences this; there the oath of a thing left in Pawn was usu­ally given,Herodotus in Brato, lib. 6. Glaucus and his whole Family rooted out for de­nying such a Pawn left with him.

King Agamemnon solemnly and publickly took his oath,D [...]ctis cretens. lib. 2. belli Tro­jani. that he had never polluted Hippodamia by Incontinency: so was the custom in Greece in matters criminal. Homer mentio­neth the same King purged himself also in another form,Homer. Iliad l. 19. v. 257. but with an oath too, that he had not violated Briseis.

In the Olympick Games,Pausanias Eli­acis. the Gamesters with their Parents and Brethren swore they had used no fraud nor deceit.

In the old Roman Commonwealth,Cato de re Rust. c. 144, 145. private Housholders put an oath to their Labourers that gathered Olives, that they had not stollen nor imbezelled any,A c final; sect. 1. de juram. ca­lum. &c. inter solici [...]udines. X [...]philanus in Comodo. Tacit. lib. 2. Anal. &c. So the old Roman Law is upon presumptions, he that refuseth to take the oath, though the cause be criminal, is taken for convicted. Victo­rianus, general of Germany, displaced his Legate or Lieute­nant, for refusing to take an oath that he was not bribed. So Tacitus speaks of a solemne oath, which the Senate cau­sed to be taken by way of Purgation in high criminal matters.

When the Prator, one of the chief Magistrates in Rome, [Page 39]had made choice of 450. Judges to decide causes,Lex Servilia Glauciae apud Sigonium, l. 2. c. 6. de judiciis. he was to swear he had chosen none of them dolo malo, or for any sinister respect. And much more might be instanced to this purpose, to shew the justice of such proceeding.

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.

OR dinaries are authorized to enquire of the Foundation,2 H. 5. c. 1. Estate and Government of Hospitals, being not of the Kings Foundation, &c. and to make correction and refor­mation according to the Laws of holy Church, as to them be­longeth: now by those Laws Enquiry touching crimes not capital is made by the Defendants oath, as is notorious and before proved, and this cannot but be penal to the parties vi­sited when guilty.22 H. 8. c. 5. Executors and Administrators are to take the oath of the truth of the Inventory; yet this may imply Perjury, or discovery of a mans own fault.1 Eliz. c. 2. Ordinaries are to enquire of, as heretofore hath been used by the Queens Majesties Ecclesiastical Laws, about uniformity of Common prayer.

Ordinaries may give the Oath of Supremacy to a Clerk within his Jurisdiction.5 Eliz c. r.

In this Act of Perjury the Laws Ecclesiastical have the powers reserved to proceed as before,5 Eliz. c. 9. which was by oaths.

That allowance is made by Common Law to Courts Ec­clesiastical to enquire, (and so consequently by such oaths) appears by two precedents of Consultation set down in the Register;Regist. tit. Consultation, fol. 48. the first alloweth of an Inquisition made by the Dean of Yorks Official for defects in a chancel, &c. The o­ther besides a consultation conteins a commandment to the Ordinary to take full information,Ibid. fol. by way of Inquisition and other means, touching the value of Tithes.Ibid. fol. 51. b. 6. An Ordinary proceeded against a Parishioner ex' officio, as for a crime for [Page 40]Tithes deteined by him.Ibid. fol. 49. a. Ad correctionem animae, the Ordi­nary proceeded against a Lay-man for Usury, even at the instance of a party grieved: so in several other cases, as in the same Register mentioned, fol. 43, 50, 51, 54, 55, 57. Upon the cavils of some busie people against Oaths mini­stred in Courts Ecclesiastical and Temporal, a Constitution Provincial was made against it: Let no man, Constitut Pro­vinc. de haereti­cis, c. nullus. saith that con­stitution, presume to dispute, &c. against Oaths, which are made either in Ecclesiastical or Temporal courts, in cases accustomed, and in usual manner, &c. By this appeareth the practice of such Oaths in both Courts: and Quintilius German in Henry the Eighths time.A Treatise touching Constitut. Provinc. and Legatine, c. 23. printed by Tho. Godfrey. who wrote against some Provincial Con­stitutions, allowes of such Oaths to be taken. Many more instances hereof may be given, but it being apparent and no­torious, that such proceeding Ex officio, and at the instance of the party, and Purgation in manner as before, was constantly practised in the Ecclesiastical Courts, according to the Ca­nons, constitutions, and Laws Ecclesiastical, before 25 H. 8. and by the aforesaid Statute of 25 H. 8. such Laws and pra­ctices have been confirmed, not being contrariant to the Kings prerogative, or the Law of the Land: And it appears that in such cases, according as is practised in the Ecclesiasti­cal Courts according to the Ecclesiastical Laws, it is so far from being contrariant, that it is most consonant, and allow­ed and commanded by the Temporal Laws of the Land. say, it appearing by the Acts and Records of Ecclesiastical Courts, that such proceedings were so constantly upon oath; there needs no more be said for justification thereof, but it may safely be concluded, that (before the making of that late Act) the Common Laws and Statutes of this Realm al­lowed such Oaths to be tendered by Ecclesiastical judges; and therefore the oath of the party, in some matter of crime that might be damageable and penal to him, was both in practice, and was allowed also to be practised (in Courts Ec­clesiastical) by the Laws of this Land.

CHAP. IX.

That Oaths administred to parties to [...]ching matters da­mageable, criminal and penal to themselves, are urged are required by Temporal Courts, and by the Laws of the Realm.

IN the Chancery, when the proceeding is moved civiliter, and not criminaliter, not to any publick punishment, but to the private Interest of the party, and sometimes lewd pra­ctises and misdemeanours criminal be in the Bill set forth; yet must the Defendant make particular answer thereto upon his oath. So in the Court of Requests, in the Marches of Wales the court of the Council there, and in the North parts; so that to the intent of a Defendants being urged by oath (somtimes) to discover himself in a matter criminal, it co­meth to as much in these Courts, as is challenged for unlaw­ful in Courts Ecclesiastical: and the Chancery must needs be the ancientest court of this Realm, because from thence all original Writs and commissions do come, whereupon the other courts do ground all their proceedings; therefore pro­bably, as in sundry other points of proceeding there, they drew the exacting of the Defendants answer upon oath from the Civil Law: For that court of Chancery being here in time and nature the first, (after the Roman yoke, before the coming in of the Saxons, was shaked off here) it could not take light from other courts of the common Law, but from some other, that was before both it and them. The Romans, under whom we were then, gave us these Laws most proba­bly; so they used, as their Histories testifie, to most Provin­ces they subdued. Many of the same Laws were taken up and retained by the Saxons, especially untill the coming in of the Norman Conqueror, who established the customs of Nor­mandy. Amongst others they retained, till then, that Law was one, That all brethren should participate alike their fathers In­heritance. We read of Trebatius, an ancient civil Lawyer,Cicer famil. ep. of­ten mentioned in the Pandects, (who lived in Julius Caesars [Page 42]time, before our Saviours birth many years) did remain at Samarobrina in this Isle of Britain; and afterwards that fa­mous Lawyer,Forcatulus. AEmilius Paulus Papinianus, did professe the Law, and kept his Tribunal seat at the city of York.

For the court of Star-chamber and High-commission, I mention not the proceedings there, because those courts are taken away, though (as before) perhaps the want of them, especially if in some things regulated, will by many every day be more thought of: the proceedings there are in fresh memory, to have been in like manner upon oaths in criminal causes.

In all the courts of Record at Westminster, do not the Jud­ges by corporal oath examine any person, whom they have cause, in discretion, to suspect to have dealt falsly about the return of any Writ, entry of rule, or such like matter, not being capital?13 E. 1. stat. Winton. Men are to be assessed, and sworn to have such assessed Armour in their houses.

17 E 2. Prerog. Reg. c. 4.The Kings Widows sworn not to marry without the Kings License,25 E. 3. de serv. c. 2, 7. Labourers are to take an oath to do the Labours appointed, &c. and if they refuse they are to be put into the Stocks.27 H. 4. c. 17. Another Statute much to that purpose.8 H 6.7. The Sheriff may upon oath examine the choosers of Shire-knights for Parliament.27 E. 3. stat. staple. Those that ship over Wools may be put to their oath by the Mayor, &c. and se­veral more, as 11 H. 7.33. 51 H. 3.27. E. 3.6. 23. Eliz. 6. &c. all which oaths, though necessary and equal, may bring great damage to the party.

Other Statutes there are, that may tend to make the party discover even matters criminal or penal to himself. The Statute of Inquisition upon Coroners,Stat. de Exon. de inquisition. super coronator. & 14. Ed. 1. the Enquirers shall make all the Bayliffs swear, That they shall well and faithfully do that which they have in charge by the King and his Council, and that they shall conceal nothing of it. This is general, and may be pe­nal to the Bayliff.

Mayors and Bayliffs in every Port where Merchants and Ships be, shall take an oath of Merchants and Masters of Ships, that they shall do no fraud against that Ordinance touching Money. E. 3. stat. de mone [...]a c. 9. This may be penal too, and to discover their own guilt.

The Statute 19 H. 7. c. 14. gives authority to divers great persons, to examine Defendants informed against for certain offences, and breach of statutes, as well by oaths as otherwise, by their discretion, and to adjudge, &c. In seve­ral other Statutes, where it is said to examine, is meant upon oath, otherwise it could not be so understood of the Witnes­ses; as 8 E. 4.2. 11 H. 7.23. 19. H. 7.14. 3. H. 7.1. 21. H. 8.10. 5. Eliz. 9.

Vintners put to their oaths,24 H. 8.6. whether they keep their wine to sell by retail or in grosse.

Concealers of Bankrupts goods to be examined upon oath,34 H. 8.4. &c.

The Lord Chancellor ex officio to give the Oath of Supre­macy to whom he thinks fit: this may be penal to the re­fuser.5 Eliz. 1.

Such as be supposed to be parties and privy to the fraud used in conveyances by Fugitives over the Seas,13 Eliz. 3. may be exa­mined upon their corporal oaths, &c. the refusers to be fined. In which, as in the other Statutes, it is evident, that it may many wayes happen, that such oaths may tend to the urging them to discover matters criminal and penal to themselves, that are appointed to take them: and the four last alledged concern oaths given, where neither bill nor yet Information is preferred against the parties examined, and therefore to be tendered more then ex mero officio.

In matters that induce damage to him that sweareth, there be sundry examples at the common Law;T. 25 E. 3. fol. 44. one or two may suffice. A woman covert Baron (being to acknowledge a Fine) if it be doubted whether she be 21. years of age, she shall be examined upon her oath.

In an Action of Detinue of goods,P. 3 H. 6.38. the Plaintiff was exa­mined where they were delivered.

A Plaintiff examined where an Obligation,H. 3 H. 6.30. which he plea­ded, was made.

Sheriffs, Stewards of Liberties, Reeves, Bedel of Strayes and Waifes, Rent-gatherers, &c. or other Accomptants to the Prince, or other great Lord, are usually urged to their Accompts upon their oaths: this may be penal and ignomi­nious to them.

In an Appeal of murther (as before) the defender must be­fore battail swear his innocency.Stamsord Pleas of Crown, l. 3. c 14. M. 34 E. 3. fol. 3.

One sworn of a Jury, and departing from his fellows, and returning, was by the Judges ex officio examined upon his oath, whether he had talked with the Defendant.

A Tenant of Land was examined by the Judges,T. 7 H. 4. fol. 19. whether he confessed the Action of he Demandant by covin, which was found.

A woman that brought an Appeal for the death of her hus­band,P. 9 H. 5.1. but supposed by another name then she had indeed, was hereupon examined.

A suspected Jury to have received a letter from the Defen­fendant,H. 35 H 6. & Firz. H. A­bridg. tit. ex [...] ­minat. num. 17. were all examined upon their oaths.

M. 35 H. 6.11.A Sheriff examined supposed to have made a false return,

Brooke tit. Ley. gager, num. 77.They have a custom in London, allowed good by the Common Law, to cause the Plaintiff to swear to the truth of his Declaration; which if he do, then the Defendant is con­demned; if the Plaintiff refuse, he is barred.

The like Decisory Oath at Common Law, which is pe­remptory to the Plaintiff,19 H. 6.43. and so is the Wager of Law ex parte defendentis.

In an Action of Detinue for a Chest sealed, with certain Gold,44 E. 3.41. Silver, &c. the Defendant tender'd his Law, (that is, his Oath) Quod non detinet, and the opinion of the Court was, he should have it.

Dr. Cosens, chap. 3. in the third part of his Apology, writes thus: The grand Jury (as I take it) have their oath given to en­quire and present, their own, their fellows, and others faults. And Part 3. chap. 14. he sayes, that at Assizes and Sessions Grand Juries are urged by oath to enquire and present Treasons, Murthers, and other Felonies, breach of the Peace, violation of sundry Laws and Statutes, Common Nusances, &c. Now if one of the Grand Jury, being to be sworn, would deny to take the Oath, except he might have some certain offences (usually given in charge) left out and foreprised severally out of his Oath, left otherwise he should thereby be driven to accuse himself: Or if one supposed most able to give evidence to the Coroners Inquest, upon a murther committed, should desire to be spared from telling his istmost knowledge thereof [Page 45]upon his oath, lest thereby he be driven to accuse himself: would the Judges spare them, and not rather repute them to be guilty of these crimes, for which they refuse to take oath and discover their knowledge? And why not then, other men should not, upon crimes nothing so penal, who refuse to take the oath to answer them, be judged by any man to do it upon good ground and conscience?

If a Tithingman refuse to make Presentment,10 H. 6.7. the Steward of the court may amerce him.

Chief Constables and Bayliffs were to give evidences upon their oaths,19 H. 7. c. 14. touching unlawful Retainers, within the precinct of their Offices, and upon concealment were to be punished, And many more such.

Therefore hereupon may it not be concluded thus? That whatsoever the Ecclesiastical Laws do allow and require, being not contrary nor repugnant to the Prerogative Royal, nor to the Laws Statutes and customs of this Realm, that may be lawfully practised by Judges Ecclesiastical. But this oath is such, by reason that sundry Temporal courts (by Law) hold the like course, and do not prohibite it in Courts Eccle­siastical; so that not being so much as divers courses, they cannot be contrariant or repugnant, therefore these oaths were lawfully practised in courts Ecclesiastical: or thus, That which is justice and equity in one court, cannot be un­just unequal, or cruel in another court, that is thereunto no lesse authorized than the first: But such be these Oaths, as appeareth by the practice of the aforementioned Temporal courts, therefore they are lawful and equal also in Ecclesiasti­cal courts.

CHAP. X.

The inconvenience and hurt that probably may follow, by the forbidding the ministring of an Oath Ex officio, or any other Oath, whereby such person, to whom the same is tendered or administred, may be charged or compelled to confess or accuse, or to purge him or her self of any criminal matter or thing, whereby he or she may be lyable to any censure or punishment. Praise of the Civil Laws. Civilians first, and last, and greatest Sufferers. Amity 'twixt both Robes. His Majesties and the Lord Chan­cellors favours to Civilians.

DOctor Cosens hath touched upon some of such inconve­niences in general, not much in particular, sparsìm in that his Apology, but not in any one distinct chapter. Some of such as I have thought of I shall set down.

That Evil should be removed is often inculcated in holy Writ, and that right and justice should be done in all causes, as well criminal as civil, publick and private, all Laws sacred and prophane command: this tending to the well-being, even the being of all Kingdome, Commonwealths and Govern­ments whatsoever; as the contrary to the desolation and de­struction thereof, and of all commerce and humane society. That in respect of the whole Church and Commonwealth punishments are most needful; the sacred Writ shews it, and gives many examples, where for the sins of a few, whole Ar­mies and Societies have been punished.Josh. 7. Achans stealing of the accursed garment, &c. was a cause of the overthrow of Israel in battel.1 Sam. 4. So for the sin of Eli and his sons, many thou­sands of the Israelites were slain by the Philistines. Salomon gi­ving charge to kill Joab, sayes,1 Kings 1.2. Smite him, that thou mayest take away the bloud which Joab shed causless, from me and the house of my Father. And for Jonas his disobedience the whole Ship was in danger to have perished.Aristot. Rhetor. Theodor. c. 14. The Heathen could say, Justicia est Reipublicae basis Aristotle could say, that punish­ment [Page 47]is a remedy to be used against faults; and Cassiodor, Re­medium est contra peccatum accclerata correctio.

For all crimes and offences are but as so many Maladies and distempers in the body of the Commonwealth, which if suffered to grow without the curb of Law, will quickly like a Canker disperse, either to the destruction or eminent dan­ger of both: So that the necessity of punishment, and forcing justice to be done, both in civil and criminal causes, by the very ends unto which it is referred, clearly appears.Aug. in ep. Joan. tract. 7. Charitas non est sed languor, ubi mali mores digna poena non ca­stigantur. Idem ep. 50. ad Bonifac. c. error. dist. 83. Error, cui non resistitur, approbatur. Cassiod. l. 3. Uac. epist 14. Ma­lum, cum perseveret, augetur. C. cum Tanto de con­su tudine. Tanto sunt graviora peccata, quanto diutiùs animam detinent illigatam. Tully sayes,Cicer. pro M [...]lone. Impuni­tatis spes, magna peccandi illecebra. C. sed And. dist. 45. Quae est ista misericordia, quae bonitas uni parcere, & omnes in discrimen adducere? The ve­ry Light of Nature did teach even Heathen men thus,F. ad l. A­quil. l. Ita vul­nerat. In­terest Reipublicae delicta puniri: andH. de fide pur. l. 7. sect. final. Poenas ob maleficia solvi, magna ratio suadet. Now, if upon such weighty reasons, it be most needful that Justice be duly administred, and crimes punished, (for in criminal matters the greatest care is to be had, though no neglect neither to be in commutative and di­stributive justice to have that rightly performed) it must be granted, that all due and good means may be used to attain that end: Qui dat finem dat media ad finem. F. de injur. Peccata nocentium expedit esse nota. Now when crimes cease to be secret, but are by fame, or by such wayes as is aforesaid, so far discove­red; if there be (as very often there is not) no other way to discover them, that so the evil and the scandal may be taken away, but by putting the party to his oath, thereby to clear himself, if further due proof thereof cannot be made; or by refusal of the oath to be taken pro confesso: then it follows, the evil and scandal must still remain, and all the sad effects thereof to Church and State may be expected to follow.

Be the fame of a crime, Adultery or the like, never so preg­nant, that Town and countrey, even the Kingdom ring of it: though an Adulterer and Adulteresse have cohabited together a long time, yet if they were not taken or seen in flagranti cri­mine, or seen in bed together, which is a violent presumption, [Page 48]equivalent to a proof; and the parties deny the fact: some make it disputable, whether or no any manner of punishment (the fact being neither proved nor confessed) can be laid up­on the [...] for this great scandal to the Church.

Some hold, that by the words of this late Act, that an in­nocent party, upon whom a fame is unjustly raised, and the beginning of it cannot be found, as often hath happened, yet though he offer to purge himself, the Ecclesiastical Judge is not to tender or administer the oath to him; though this seems otherwise, because the oath is forbidden but onely in such cases, whereby the person to whom the same is tendered or ad­ministred, may be charged or compelled to confess or accuse, or to purge him or her self, of any criminal matter or thing, whereby he or she may be lyable to any censure or punishment. But in this case of voluntary offer to take the oath, that reason of censure or punishment ceaseth.

Volenti non fit injuria neque dolus. Reg. juris.

Such course by way of oath to find out the sin being for­bidden, how great an encouragement it may prove to com­mit such sins, is obvious to the easiest judgment. It was ex­treme to make Adultery punishable by death, though that ex­treme be to be avoided the contrary too must be shunned.

If it be lawful at common Law, as in a Wager at Law, and many other cases, as before touched, to tender and admini­ster such oaths, and in such causes as need it not so much, as these causes ordinarily do; wherein before that late Act it was administred in Ecclesiastical courts: then why not in Ecclesiastical courts? Except it be said, that the fame course shall be taken to forbid it also at common Law, which, I sup­pose, is not intended; since Jury men, as Dr. Cosens (as be­fore) in that his Apology affirms, had an oath given them to present their own and their fellows faults. Now such in Ecclesia­stical proceedings.

The inequality of the punishment as to the difference of Sex. Indeed the permission of punishment as to one Sex, the Man, and the punishment to the weaker Sex, the Woman, [Page 49]who therefore deserves more commiseration: that inequali­ty, I say, cannot at best but seem strange. For the man will alwayes probably (except either by Gods grace he will glo­rifie him, by confessing his fault; or else, as before, be taken in flagranti crimine; or with such violent presumption as be­fore) escape punishment though never so guilty: It is pecca­tum concatenatum, there must be two to act it. In that sin the man without the woman, or the woman without the man, signifie no more then the letter q without an u following it, to make it into a syllable. As for the man, his crime is transiens, leaves no vestigia behind it to discover him: not so oftentimes in the woman, the infallible indiciū of her fault, her crimen ma­nens appearing to every eye, though she is no more guilty thereof then the man: whom if she rightly name or accuse, yet that works nothing against him, except to keep the Ba­stard child as the reputed father thereof; wherein not a few light women probably name not the right father; so her sin­gle testimony serves to punish either the right to wrong fa­ther, but not to take away the scandal or evil caused by the man that offended. Our English Nation hath been accoun­ted very friendly and favourable to the weaker Sex, and very many are the privileges and honoraries we give them more then in other Nations; for which in the opinion of generous minds we are accounted more honourable then others; inso­much as some have said, If there were a bridge 'twixt Dover and Callis, all the women in the Continent would come into our Island. But by this we may seem to hazard that honour.

In Simony, Usury, and many other crimes of Ecclesiasti­cal cognisance, be the fame, circumstances, suspicions, and all other inducements never so strong; yet this oath being not to be administred, the offender scapes, neither the evil nor scandal is removed.

Bishops by the Statute 1 Eliz. 1. are to give the Oaths of Allegeance and Supremacy ex offieio to others, or whether it be ex officio or ad instantiam partis, the matter is all one; 'tis forbidden to give it to any person, whereby he 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 [Page 50]lyable to any censure or punishment. The refusal of this oath is penal, and perhaps the person was so accused to the Bishop, or there was a common fame thereof, or other sufficient inducement to enquire thereof; if the party refuse to take this oath thus tendered to him, then is he by the Law lyable to censure and punishment for it: and I conceive it is not thought fit, that such a person, be he a Recusant of what kind soever, should plead this Statute, that this Oath should not be tendered to them.

By the Law all Bishops and Ecclesiastical Judges, when they give Institution into Benefices, or give license to preach, teach school, serve Cures, and in other cases, are to give to the parties the Oath of Allegeance and supremacy: should these parties refuse to take these oaths, it were penal to them.

When the Bishops make their Chancellors, Commissaries, Advocates, Registers, Proctors, or the Deans and Chapters, their Commissaries, Officials, or Auditores causarum, or the Archdeacons their Officials, or any other Ecclesiastical Offi­cers whatsoever, the same oaths are to be given them: should these parties refuse to take these oaths, it were penal to them. So a greater part of the course of proceeding in Ecclesiastical Courts is taken away, then perhaps many think of.

So in the Oath of Calumny and of Malice, to be tendered in the proceedings in ecclesiastical Courts; if the party re­fuse to take them, 'tis penal to him. And in many other ca­ses easie to be enumerated, but this may suffice.

The guiltless and innocent have no benefit by taking away this oath, especially that of Purgation; nay, (admitting that which, as above, some affirm, That though they offer to take the oath of Purgation, the Ecclesiastical Judge is not to mini­ster it) in that case they are endamaged by it, and cannot make their innocency appear in such a way and means as the Law did afford, and to be restored to all intents and purposes to their good name and fame, of which they were in a great part (though unjustly) bereaved; and might have a good Action against any, that after such Purgation defamed them.

The guilty hereby escapes punishment, which he may in some sort lucri loco reponere, if it may not be said of him as Vir­gil of the stinging Bee, animam in vulnere ponit. Reg. juris. The rule of Law is, Nemo ex delicto consequitur beneficium.

The great Hypocrisie of those Innovators and Fanaticks in Queen Elizabeths, King James's, and in the late blessed King and martyrs reign, King Charles the First, (to go no further) that then pressed the taking away of that Oath, and some of them we have seen go much further of late; who would be thought to be, and so hold it forth, that they are the greatest Zelots to have those sins punished, that by that means would escape it; yet cry, like the Lapwing, furthest from their nest; they would not have the means left to find them out, that so they might be punished: and other use for their ends (which we have sadly felt) they made of it, as is touched above. Herein they somewhat resemble Julian the Apostate, [...]. He would seem to be a hater of a long incompt Beard, and entitles that Tract of his [...], An hater of beards; and yet he sayes there of himself, [...] &c. [...]. Longam istam barbam addidi, &c. ideo discur­rentes in ea pediculos perfero, tanquam feras aliquas in sylva.

Many other inconveniences and hurts, that too probably may be feared to arise from the prohibition of these oaths, in such cases as before, might upon further consideration be enumerated: and though in the last place, yet even that too, of adding further discouragement to the professors of the Ci­vil and Ecclesiastical Laws, who have not had a few for a long time together, may perhaps deserve to be thought upon. It is too visible that there are not a few, that would not have them enjoy so much of practice and power, as that without which the State can scarce spare them, that is in maritime causes touching Traffick and commerce with Forreigners; a point eminently considerable as to the benefit of this Nati­on. For the Law it self, surely all Scholers and ingenuous men, of what Robe or Profession soever, cannot but honour it for the Antiquity, and in a sort Universality, and Excellen­cy of it, and the great number of Nations, and so many, and [Page 52]noble, and well-civilized exercise, that were anciently, and in great part, and yet are governed by the rules thereof, and the helps received from it even by our own Nation too; many wayes demonstrable. Before our Saviours time, as is touched before,Cic. famil. epist. in the time of Julius Caesar, Trebatius an anci­ent Civil-Lawyer, and often alledged in the Pandects, remai­ned at Samarobrina in this Island of Britain; and after that the Oracle of that Law,Forcatulus. Aemilius Paulus Papinianus, profes­sed the Law, and kept his Tribunal seat of Praetorship in the City of York: and no inconsiderable part of the Municipal Laws of our Nation have flowed from that Fountain, and drawn many Rules and Maxims thence. So that it may, as that learned Civilian, Sir Rob. Wiseman Knight, Doctor of the Laws, His Majesties Advocate general for the Kingdom of Engl. in that Treatise of his of the Excellency of the Civil Law, be truly styled The Law of Laws; and as it was said to that Roman orator highly commending eloquence, that he lifted her up to the skies, that he also with her might be raised up thither; so he in that learned and judicious Tract of his, setting forth the due and just honour and Encomium of the Civil Laws, de­serves to be thereby perpetually honoured. And for the pro­fessors of the Civil Law in this Nation, their share of suffer­ings in these late tempestuous times was the earliest, began first, some years before the Loyal Clergy were destroyed: For upon the passing that Act for the taking away the High Commission, in the tail of it was that sting, which (as the then more powerful part interpreted it) took away the coercive power from the Ecclesiastical Courts, and so in a manner made them useless and precarious, if not ridiculous; and within a very few dayes after passed that Act for Poll-money, where every Ecclesiastical Judge, that had any Ecclesiastical Office of Judicature, (though some of those places were not worth 30 l. per annum, nor 20 l. per annum, and some less) paid 15 l. a greater summe then some men paid of 10000 l. per annum, and more in Land of Inheritance: So sharp-sighted was that Act towards that then in a manner even ruined pro­fession. The reason of it was visible enough, and no wayes dishonourable to that profession or professors, who acted [Page 53]justly according to the known Laws of the Land; had they done otherwise, surely they had not wanted legal punish­ment, as the times then were, and the cry that was then un­justly raised against them; when the furious flame of Civil war broke forth, that wasted the church, all loyal Church­men, and all that had dependance or relation to them, in re­gard of any Offices or Places, as most, if not all, Civilians had then. As to the Civilians, Sublatum fuit questionis subje­ctum, their Offices and Places were quite taken away. Indeed the most reverend Fathers the Lords Archbishops and Bi­shops, with Deans, Chapters, Archdeacons, and other Dig­nitaries in Cathedral and Collegiate Churches, tasted of the same cup, were A la mode then, but not so soon as the Civili­ans, root and branch destroyed: but the Beneficed Rectors and Vicars that for their Loyalty were thrust out of their Be­nefices, had a small pittance reserved them, (though when paid at all, miserably shrunk and lessened almost to nothing) that is, as they called it, the Fifths of their Livings: But as to the reverend Prelates and Dignitaries, and the Civilians, there was nothing left, under such pitiful Step-fathers, were the then nick-named Fathers of their Country, the prevailing party in that Long Parliament, during the time of the long continued usurping Power, even till His Sacred Majesties happy Restauration; those causes and businesses, which of right ought to have been agitated and dispatched by Civili­ans in their several Offices and places, many of them, as cau­ses of Defamation, Matrimonial causes, Tithes, if not Le­gacies also, and several other branches of Ecclesiastical Juris­diction, were all along dispatched at Common Law or Chan­cery, contrary to all Law and equity; Probate of Wills, and granting of Letters of Administration, with all the connexes and incidents thereunto belonging, and from thence arising; were by Commission from that usurping Power, committed to a few persons of their own gang at London, so that the Subjects from all parts of the Kingdom were to prove the Wills of the dead, and take Administration of Intestates Goods, passe their Accompts, and act the rest concerning them, there before them at London. The Executors and Ad­ministrators [Page 54]must either come up thither personally to them, to take their oaths, or else have Commissions down into their Countries to do it; and the charges to the Subject for such Probate of Wills, Letters of Administration, and the rest, whether they went up themselves to London to dispatch them, or more especially if they sent up by others thither to have them done, as most commonly they did, and not scare one in forty did otherwise, and it was the cheapest way probably for them so to do, in regard of the charges, to send up by o­thers that also had other business of their own there: Yet, I say, by these means, and the great Fees taken, the charges for proving every Will, taking Letters of Administration, and the rest, came ordinarily to about six times (sometimes much more) as much as was taken and due before these trouble­som irregular times, by the Ecclesiastical Judges and Officers to whom of right they appertained: that is, the Fees and charges usually came to 50 s. or 3 l. or 4. l. or 5. l. and some­times to 6 l. or more. Had such a Grievance, and so general throughout the Kingdom, reigned in the time of Kingship, when faithful and peaceable men acted according to the known Laws of the Land; surely the fall of Nilus to the Ca­dupes would not have made such a noise, as our factious Sten­tors would have then bellowed out. And too much of the grievance still remains, such Wills, Inventories, Bonds so Administration, with the dependancies thereupon, remain­ing still at London, whether the Subject, when they have oc­casion to see or use any of them, or sue for any thing concer­ning them, must either personally repair or send for them, or sue there: which is well hoped will by this happy Parlia­ment be remedied, and a course taken that they may be trans­mitted into every County whence they came, for the Subjects ease, and that they there may sue upon occasion, for any Le­gacy or other matter concerning them. Should it be deman­ded at whose charge this should be done; the dictate of Rea­son, I humbly conceive, answers it; qui commodum habet, idem & onus habere debet. And thus for no small number of years our Places, our Livelyhoods, were unjustly taken from us, onely for our Loyalty; whilest others, that did it, gloried [Page 55]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 [Page 56]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 [Page 57]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 Ʋlysses, 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 [Page 58]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 'tis hoped hath no disaffection to that profession or professors of it, but rather in a just resentment of their op­pression, sutable to his birth and noble disposition) if so, I say, they may comfort themselves in this, that they were put to the test in the beginning of the Long Parliament, when their factious Accusers were sufficiently numerous and viru­lent, and had they been found guilty, they had not then esca­ped punishment, severe and infamous enough. They could not easily have been highlier justified then that way, which made it appear to all the world, that that clamorous party, through the sides of the Civilians, intended to strike at and wound their Superiors, and so serve turns and ends, and com­passe their long-weav'd design. If the Civilians do their parts in their Functions, uprightly and diligently, which their own consciences doubtlesse will prompt them to, and the vigilancy of their factious Adversaries over their actions, may serve to keep them awake; 'tis to be hoped they will every way find comfort and encouragement: However that peace at the last, and the continual Feast in the interim, will buoy them up above the greatest waves of envy or ma­lice. Good men will be their friends, though the contrary be their enemies: and one Cato is better then a Theatre. And we cannot but be confident, that we shall never have cause to say, as some said in another case; Non nos Resp. sed defuit nobis Respublica.

We have a gracious KING, whom God protect, blesse, and prolong his dayes: ‘Et Spes & Ratio studiorum in Caesare.’ He, we doubt not, will, as before him his Royal Father, Charles the first, King and Martyr, and his Grandfather King James, of blessed memory; look upon us with a favourable eye, according as he finds we endeavour faithfully and dili­gently to serve the Church and State, that is to serve him: [Page 59]they who faile therein deserve not to be remembred. And besides the general, His Sacred Majesty hath in particular de­monstrated his gracions favour that way, by the addition of honour and honourary revenue to the Masters of the Chan­cery, Civilians for the most part: an act that, if possibly there can be an addition, adds to the just obligation of duty, service and gratitude which they owe his most excellent Ma­jesty. And all due thankfulnesse and honour the same Pro­fession must ever acknowledge and render to the Right Ho­nourable the Earl of Clarendon, Lord Chancellor of England, for his special favours to that Profession and Professors, and for his mediation and being instrumental (as none, I believe, can suppose otherwise) in the obtaining that favour and bounty to the Masters of the Chancery, and by furthering the continuance of His Majesties gracious inclination to­wards them. We blesse God, and His Majesty and his Lord­ship for it, and are, I hope, and ever shall be most thankful for it, ad rejoyce and comfort our selves in it, and ‘Rumpatur quisquis, rumpitur invidia.’

Now (as in the Preface) I thought fit to subjoyn that little Manuscript, touching the Oath ex officio, with that Deter­mination touching the same, by that glory of our Church, the late Lord Bishop Lancelot Andrews Bishop of Winchester.

A Manuscript treating of the Oath Ex officio, said to be Doctor Davenants, late Lord Bishop of Sarisbury.

1. THat which the Commons House complained of is, that the Commissioners Ecclesiastical proceed Ex officio, that is, (say they) without a known Ac­cuser.

2. And that they cause men to answer upon their oath, that which they would have is this.

1. That no man should be dealt with, but an Accuser should stand forth, and that no Oath should be ministred to a man in his own cause.

That which your Lordships have enjoyned me, is to shew my opinion, whether the courses complained of be warrant­able by the Word of God or no.

Two parts there are distinctly to be spoken to, the one of proceeding without a known Accuser, the other of proceed­ing by way of Oath.

I begin with them generally at large, and after as they con­cern Ecclesiastical proceedings.

1. The end of all Judgments in all Courts, is to remove evil. The Heathen man sayes, Interest reipublicae ut malefict tollantur: the health of the civil body consisting no lesse in re­moving evil persons, then doth the natural in purging out evil humours. And the very same is Gods course in his Common-Wealth; ten several times in Deuteronomy he repeats it, Ʋt sic tolletis malum de medio Israëlis.

2. Evil then is to be removed, not onely civil but Ec­clesiastical; so doth God take express orders, that corrupt Religion, contumacy in disobeying his Priest, Incontinency, Defamation, (matters all of ecclesiastical cognisance) should be removed, expresly terming every one of them malum in Is­raële. And so in the New Testament doth the Apostle speak of the case of Incest; Vos autem auferetis malum de vobis. [Page 61]These then are evils, and Ecclesiastical evils, and to be re­moved.

3. If they must be removed they must be known; for St. Hierom saith well, Quod ignorat medicina, non curat. Phy­sick both corporal and civil must know the peccant humour, before they can purge it.

4. If know it they must, by the parties themselves they shall never know it. The first that ever did trespass, were not so ready to commit sin, but they were twice as ready to conceal it. And as Tertullian saith to good purpose, Reliqui omnes congeneres primo: All other offenders do as the first did, seek to keep their offence from being known. The offences themselves, ye know, are called opera tenebrarum, and Incon­tinency, that defileth the body as well as the spiritual Whore­dom, which is corruption in the Worship of God; either of them, we know, is angularis actio, and kept from knowledge as much as may be.

5. Then, if they must be known, and will not by the par­ties themselves, some other means must be used to bring them to light; where if there be a party to stand up and accuse, 'tis well, and he not to be refused. But we know, and I refer my self to your Lordships, that it is holden an odious matter to be an Accuser, and with the better sort of men more odi­ous: Few that be well disposed will be gotten to it, and even they that will, I refer me to your Lordships again, whether Salomon saith not true, that One evil will not be accused but out of another evil: that is, grudge or spleen to wreak our selves up­on some party, that we conceive hath wronged us; other­wise the faintness of men to become Accusers will make that much evil will not be removed, if this be onely the way to remove it; but God saith, All evil must be removed so near as may be.

6. For that cause God hath authorized those that hold Ju­dicial places for the removing of evil, not onely to receive accusations when they be brought against it, but if none be brought to make enquiry after it, in the 13, 17, and 18 of Deuteronomy, that by enquiry it may be found, and found it may be removed: Which Enquiry is not left at large pro­miscuously, [Page 62]hand over head, but hath his limitation upon what ground to proceed. Now, if you aske what ground we can have, no better rule for it, then if we follow Gods own proceeding in his judicial courses; for the judgment is Gods properly, and not Mans; and there is nothing more to be desired, then that God would give the King his judgments; for the judgments of all those that be in place, are then best when they are likest Gods: the rather for that God, needing not to hold any course of Enquiry, because to him all things are clear and manifest, not onely then but before they be done, and yet binding himself to a certain way in his pro­ceeding, no other reason is or can be rendred, why he should so do, but onely to instruct us how to proceed by his exam­ple. In Gods court, true it is, there is an accuser allowed, even the accuser of us and our brethren, who (we see) is som­times heard and received, though his suggestions be untrue; as in Jobs case. But is there no proceeding but upon accu­sation? I take it to be very clear, that it will fall out, divers judgments of his having been given upon another ground.

In Adams case no accuser stood forth, what was done was as yet not known, onely he was taken in suspicious manner, flying from God, lurking in a Thicket; which was plainly species mali, and God thought it meet to be enquired on: and so may we upon like suspicion, though there be no accuser, even by his Warrant.

In Eves case neither had she any accuser, but by examining Adam she came to be impeached tanquam particeps criminis, at the least; which, as we know, was by way of detection, which is not properly accusation, yet sufficient enough to ground a sentence upon, as (we see) God did, and they that sit in his place may do the like.

In Cains case it fell out clear otherwise then in Adams, for in Adams the fact was unknown, in Cains onely the party, for the murther was evident.

Now to find out the party, the way which God taketh is by presumption, for that there had been malice born Abel by Cain, and he admonished thereof, his very countenance bewraying as much; this did God hold cause enough to [Page 63]ground an Enquiry upon, and so may we. In the case of So­dom there is yet another way; clamor multus est, saith God, there is a great rumour or fame runneth upon Sodoms naughti­ness, I will go down and enquire of it, saith God in express words. So that whether there be accusation or no, vehement suspici­on, or detection, or strong presumption, or fame will supply the want of an Accuser; and the Judge even by very duty is authorized to proceed to enquire upon any of these.

A little to insist on this of fame, whereof our Savour Christ in the Gospel hath made that a branch which we call denunciatio Evangelica; when a party of good credit discloseth unto the Judge a fault, but will not sustain either the hazard, trouble or charge of an Accuser. Yet doth our Saviour Christ give warrant to the Church, even in that case to call the party, and take order with him. But this point of pro­ceeding upon fame, hath not onely warrant of proceeding in Gods example, but in his express charge; two several places of the Law where the ground is, Deut. 30.12. Deut. 17.4. If it be told thee that such or such a fault is done, the proceeding is perscrutando & interrogando. Perscrutando, that is, by search­ing and evidence; Interrogando, that is, by interrogating the party about the fault suggested. And we see plainly in a case of Ecclesiastical correction for matter of Incest, the Apostle goeth no further, but layeth this for his ground, There goeth a report, that such a party there is among you. As therefore when an accuser offereth himself, he is not to be rejected; so though none do, rather then faults should go uncensurable, the Judge even of very duty is to search them out: In his search not proceeding without some of these that have been mentioned, but with these he hath good warrant, even as good as Gods own example and commandment.

Sufficient hath been said to shew, that without an Accuser a Judge may proceed by enquiry to interrogate a party, but whether upon his Oath, that is the second point to be shewed, no less warrantable by the Word of God then the former.

In the case of the Woman suspected to have made a fault to her husband, and that upon no other ground, but upon her husbands own jealousie; the Ecclesiastical Judge was not [Page 64]onely authorized to examine her concerning it, and then to rest on her denyal; but also to put her to her oath, and make her to abjure it with execration, as it is plainly, Num. 5. And it is a case of a sin against the seventh Commandment.

In a sin against the eighth Commandment, betwixt man and man: If one had committed ought to anothers trust, and were perswaded that he had played false with him, he might bring him before the Judge, and have the matter searched into, and at the Plaintiffs instance the Judge was to lay an oath upon him, and the other not to refuse it. And of this there are more cases then one, Exod. 21. And if in private causes be­twixt man and man this manner of proceeding be allowed, it will follow à fortiori, if for the private benefit, much more that which God granteth to a private man, it is to be presu­med he will not deny to a Magistrate: that which to satisfie one party he licenseth, he will likewise think meet to license for the taking away of offence, and giving satisfaction unto many. And the chastity of a mans Wife shall never be more precious to him, then the keeping of his own Spouse the Church, free from the like stains of pollution.

In a sin against the sixth Commandment, a case of Mur­ther, one is found slain; no man can be accused or suspected for doing it: In this case the Governors of the next City to the body so found, are by the Law to come to the place to offer a sacrifice, to invocate the name of God, and solemnly to testifie by that Invocation, that they are no wayes privy to the murther. This is the course in the Law of Moses, but before ever the Law was written, we see the very same hol­den by Joseph under the Law of Nature. In a matter of State, in a suspicion of a sin against the fifth Commandment: It pleased him to charge his ten Brethren as Spies coming to discover the weakness of the Land; there was no party to accuse or to say ought against them, yet for all that he put them to it sub attestatione juramenti, to answer, They were no such men.

The very like course was holden in the search for Elias; he was thought to be the cause of the long and great drought: The King sent all over the Land to seek for him, and to have [Page 56]him apprehended; these especially that were thought to be the Professors of the same Religion, all denyed him; it would not serve the turn, he put them to their oaths, and they re­fused them not, yet was there none to accuse them at all. Yet for the good (as it was supposed) of the State, this course was well allowed.

So have we Interrogatories administred, and the parties sworn to them, in cases of the fifth, sixth and seventh Com­mandment.

And if this may be done in civil causes, and be not unlaw­ful in them, we argue that much rather it ought to be allowed the Church in her proceedings.

First, for that both Commonwealth and Church be to re­move evil, yet work they not both one way; for the Com­monwealth, as it is well known, doth agere ad poenam; the Church never so, but doth onely agere ad poenitentiam, seeketh to alter mens minds, from the evil courses they have entered into, seeketh by making them to yield to a voluntary submis­sion themselves, to take away the scandal, whereof they have been a cause.

Now there is great odds between those, and great reason more means be allowed those, that seek for nothing else, but the reformation of the party and his souls health; and those that end their proceedings alwayes in the loss of life, limb or liberty, or living, as doth the Civil.

Besides, it is well known the civil power hath many wayes and means to sift out the truth, though not by this, That the Church (if Accusations cease) hath none, but this onely. In­deed therefore most proper and peculiar to her, because an oath is the bond of the Soul, and they be the sole causes the Church hath to deal with.

The inconvenience is none at all: for admit a party should thereby disclose his offence, yet groweth thereby no damage unto him, in that his repentance onely and reformation is thereby sought, and wrought, and nothing else.

Thus reasons the Church, but for her practice taketh her ground to be full and good out of the fifth of Numbers, in a case of suspected Incontinency, which is meerly Ecclesiasti­cal. [Page 66]And again, out of 1 Esdras 8. & 9. in a case Matrimo­nial, which is meerly Ecclesiastical also. In both which In­terrogatories are ministred with oath, the proceeding being by Enquiry, without any Accuser at all. And that which is to be noted in the case in Esdras, they are no wayes forced to it, but desire to take their oath first, and be examined after. Then which there is no case more like to the proceeding at this day, against which exception is taken.

Out of these six it is manifest enough how agreeable to the Will of God this proceeding is: But beyond all this is the seventh in the fifth of Leviticus, where it appeareth that God is so careful to have all evil removed, as leave is given by him upon a fault committed, the party being unknown, to lay a solemn charge, and to bind it with a curse, and that at large, to take hold of any that were privy to the fault done, and did not come and reveal it.

Which course was clearly of the nature of an Oath, as doth plainly appear by 1 Sam. 14. where it is said four several times, that Saul bound all the people with an oath, not to taste of any thing till the Sun went down, that they might pursue their enemies without any intermission: Which oath is judged by the Expositors to have been nothing else but the publick denouncing of a curse, or adjuring them in the name of god nor to do it, seeing it is held a thing impossible, that he should call so many thousands in particular, to take every man an oath, the time being so short, and he in such haste to pursue the Enemy. But it is a thing, as Nazianzen saith, not unusual, either before Christ or since, in the time of the Primitive Church, to make such adjurations, whereby the Church ever thought, quod poena commissi revolvitur in con­scium, that he that concealed was subject to as great a curse as he that committed it.

By all which it is evident, that such proceeding by oath may be, and is not unlawful.

This, as before, is by some said to be Dr. Davenants, late Lord Bishop of Sarisbury, and others say it was the late Lord Bishop of Winchesters, that most learned and pious Bishop, [Page 67]Dr. Lancelot Andrews. Whose soever it was, it seems it was to give satisfaction to the Lords of the Council touching such proceedings Ex officio, and upon oath; and 'tis to be believed it gave them satisfaction, the Law so long after continuing the same, and no wayes altered.

The Theological Determination of Dr. Lancelot Andrews, afterwards Lord Bishop of Win­chester, had in the publick Divinity-Schools in Cambridge, in the Moneth of July 1591. upon this Question following.

Rendred into English for the use of the meer English Reader.

Whether by Gods Law it be lawful for the Magistrate to require an Oath of the Party, (that is, the party guilty or Defendant?) and in what case, and how far it is lawful?

TOuching the questioning of parties guilty or Defen­dants by the Religion of an Oath, as also of such par­ties taking such Oath, or lawfully declining it; of late hath a Question arose, Whether by Gods Law it be lawful for the Magistrate to require oath of the party (that is, the party guilty or defendant) and in what case, and how far it is lawful? This question, to prevent any confusion upon your memory or my own, I will divide into five branches; and in­deed in this short two dayes space I have not bethought my self of a more distinct method.

1. Whether it be lawful to exact or require an oath?

2. Whether it be lawful for the Magistrate to do it?

3. Whether from the guilty (or defendant) party?

4. Whether it be lawful in every cause, or not in capital causes, but such as receive a milder punishment?

5. How far this is lawful, and in what cases?

Of which questions the first three have nothing of question in them, if we be found in Divinity; therefore I shall in few words dispatch them.

And first of all, it is a sacred right that such an oath may be lawfully required: In which matter I think it is very be­hooveful (as Christ did in the case of Divorcement) first of all to enquire what every thing was in the beginning: in the revolution of time many things are changed; the beginning is the most certain rule. Therefore I aske where and when the first mention of an oath is made in Scriptures? I finde Gen. 24. Abraham forcing his servant to take an oath, in these words, and with this ceremony; Put thy hand under my Thigh, and I will make thee swear, that thou shalt take a wife for my son, of my Kindred. So the first oath mentioned in Scripture, is here expressed: and as it is the most ancient and first, so it is the most frequent and onely mention almost of such a thing. This very term (to Swear) you will scarce any where find it in the Old Testament, but either under the word Hi­phil, that is the Imperative, commanding conjugation, in re­spect of him that gives the oath: or under the word Niphal, that is the passive suffering conjugation, in respect of him that takes the oath. And under the same rule are the Greeks, a­mongst whom Orcos is the name of the oath, which almost solely the holy Ghost acknowledges in the New Testament. In that word is a kind of straitning necessity, and as they say, an exigengy no less then there is in the word Orcos; for from the same word comes both, that is of straitning. Thereupon comes that common Proverb, War and Oaths are voluntary evils; and that they may be good, they ought to be pressed and expressed (as St. Augustine of Oaths sayes wittily) either by the Authority of him that gives the oath, or at leastwise by the hardness of his heart that believes not So that it is a sin ei­ther to swear or to make war, except it be at least in some manner exacted, and upon some and no light cause. There­fore that it may be required, or rather that it ought to be, the very force of Nature, the very force of the term it self evinceth it.

But whether from the Magistrate? (this is the second branch.) Yes surely from the Magistrate.

So the Divines of old; Not onely every body but every soul is to be subject to the Powers, Rom. 13.1. Therefore the Powers have power to commit the body to custody, by imprisoning it, lest it escape: And so likewise the soul, to commit that to custody, by laying an oath upon it, lest it should have any subterfuge, by which name God himself hath most fitly cal­led an Oath, the Bond or prison of the soul, Num. 30.13. by which the soul may as it were be tyed up; and being so tyed up, may be bound to answer appositely and readily. But yet it comes nearer: If it be lawful for the Master to force his servant to take an oath, as Gen. 24.3. Abraham did; if a father to his son, as Jacob to Joseph, Gen. 47.29. if a brother to a brother, as the same Jacob to Esau, Gen. 25.33. By how much better right is it lawful for the Magistrate to do it to his Subject, whose command is more excellent then any other command? I adde also about the right settling in marriage of a son, if that be lawful, as Abraham to his servant; of chu­sing a fitting place of burial, as to Joseph; of passing away the right of Birth-right, as Esau; and in private causes, I adde also of the least concernment, if compared with the pub­lick: Then surely by better righr may the Magistrate do it, in the common cause of the Commonwealth, whose Interest is greater then any other Interest. And that is provided for by Gods Law, Exod. 12.8. in express terms; in the case of a Pawn, saith God, let them come before the Magistrate: In which place the Magistrates are named by the name of God him­self, and not by any name, but by that very name which is taken from the force of an oath: as though he should say, Let them come before the Oath-givers, or those who (when they give the Law in Gods stead) in his Judgment and in his Name may require his Oath to be taken: That is, Gods De­puties, Psal. 82.6. in Gods judgment: 2 Chro. 19.8. the Oath of God: Eccles. 8.2. therefore to the Magistrate. It is law­ful to the Magistrate, I say, as well Ecclesiastical as Civil. Before him that is the Ecclesiastical Judge by Law, the Wo­man is commanded to purge her self in a case of suspicion of [Page 70]breach of Wedlock bond, Num. 5.19. Before him that is the Temporal Judge by law, the man is commanded to purge himself in a cause of suspicion of breach of Social promise or Contract, Exod. 22.8. The practice whereof we see (and the practice of the Saints is the Interpreter of the Commandments) of the Ecclesiastical Judge in Ezra, who required an oath in a Matrimonial cause, Ezra 10.5. Of the Temporal Judge in Nehemiah, who forced an Oath in a cause of Usury, Neh. 5.12. Neither hath the pious and religious Magistrate onely right to do this, but the Heathen Magistrate too, and that to Gods people; Zedekiah gave his Oath of Allegeance to Nebuchad­nezzar, 2 Chron. 36.9. though forced he gave it, and rightly too, if we believe Ezekiel; and afterwards by a sacrilegious boldness he attempted to break it, he scaped not unpunished for it, Ezek. 17.13. Lastly, I adde that this was not lawful to do to their own people onely, but also to guests and stran­gers, living within their Territories, either for trafficking or any other cause: In which regard Joseph, now become Vice-Roy of Aegypt, imposes an Oath upon his Brethren in a case of Treason suspected, though both by Law and by Nature they were Canaanites, Gen. 43.3. therefore hence it now ap­pears, that it is lawful to impose an Oath, and that it is law­ful also to the Magistrate.

But whether is it lawful to do it to the party, that is, the party guilty or defendant? (the third thing I propounded.) Nor can that be called into question, Exod. 22.8. He to whom the Pawn was concredited is the party guilty or defendant, Num. 5.19. The woman suspected by the jealous husband to have wronged his bed, is also the party guilty or defendant: but to each of them is this oath to be given, nor is it lawful for them to decline it. In a few words I will summe it up: Whether one deceitfully keeps his neighbours goods, or per­fidiously deteins his friends goods, or restores not to the ow­ner his found goods, when he requires them, Levit. 6.3. or (as it seems to me) in any other crime, (for it is mentioned indefinitely, 1 Kings 8.31. in whatsoever he shall sin) it is law­ful for the Plaintiff or Agent to impose an oath upon the party, that is the guilty or defendant, or to lay an oath upon him, as [Page 71]it is in the Hebrew phrase; nor is it lawful for the guilty or defendant party to refuse it, whether it be imposed by the Agent or Plaintiff, or by the Magistrate. Indeed I cannot deny, but we are fallen into such times, that it may be expedi­ent to impose the oath upon the party, Agent or Plaintiff, and not onely upon the Defendant; for it may happen that they may both prevaricate, that is, the party Agent or Plain­tiff by calumniating, and the party guilty or defendant by Tergiversation. But if we would take the Law from Hea­ven, from the holy Writ, to the party guilty or defendant, 'tis more necessary to be given. Examples are thereof: Scarce will you find in the Law an oath laid upon the Agent or Plaintiff, but very often may you find it upon the party guil­ty or defendant: Moses renders the reason of it; The actor (who for the most part is the party endamaged) he is infla­med with anger, he is wholly wrapt up in the Leaven of an­ger and revenge, struck through with the sting of malevo­lence, will be rash with his mouth, which the Wiseman forbids to be in an oath, Eccl. 5.1. therefore the matter of an Oath herein is altogether unfit. But the party guilty or defendant, whom the Law alwayes supposes to be guilty of the crime charged, till the contrary appear, is much fitter: In him there is less prejudice, less of affections, besides perhaps of fear, which is as it were the heart of an oath. Therefore it is lawful to lay it upon the party guilty or defendant, and fitting too to do so.

Now I come to the fourth branch; In what cause this is fitting: which is more intricate, and hath more question in it. And I shall not seek any where else for the division of these causes, but in our Law, that is, the Law of Divines: there in the holy Law some are called wrongs or prevarica­tions, Exod. 22.9. some capital causes, Deut. 21.21. whereof some of those being heinous, are punished with loss of life, life either by being deprived of natural life, or civil, that is, Banishment, or (as the holy Writ speaks) rooting out, Ezra 7.26. To which are allied causes of bloud, such as are Deut. 25.12. Lopping off a limb; and there in the second Verse, inflict­ing of stripes: but these others were not so great, and were [Page 72]partly punished by pecuniary Mulcts, partly by imprison­ment, Esth. 7.26.

Was there any place for such an oath to be given, in such crimes as were punished by loss of life? truly I do not per­swade to that. First, the practice in Scripture contraries it; for I see when Achans life was in question, Joshua dealt thus, Tell me, my son, swear not to me. So likewise Saul in the like case concerning Jonathan, Tell me Jonathan, do not swear to me: a willing, not express confession; a simple interroga­tion, not under the bond of an oath. But (which is the hinge of the question) I see the Prophet Jeremy himself interrogated by the King himself, I will aske thee a thing, hide nothing from me: The Prophet covenants with him, If I declare it unto thee, will thou not surely put me to death? (nor did Jeremy thus cove­nant without the dictate of the holy Ghost:) as if in such causes God had given an immunity of answering, Jer. 38.14. And indeed Reason perswades the same; for indeed so ought Inquisition (as far as it may be) to be made by the Magistrate, that the manifest loss of souls may be avoided. When as from the mouth of the greatest Liar that most true sentence proceeded, Skin after skin, and all that a man hath will he give for his life, Job 2.4. it is to be feared that that, whatsoever, or all that a man hath, will comprehend as well the conscience of an oath, as the fear of God, and what else soever comes under the notion of Religion, as men are, and as they are disposed. Wherefore, though I define nothing (I know not how) in such causes as these, in regard of the present danger of Perju­ry: yet I think 'tis best to forbear the imposing of an Oath. And the Laws which we use (at least according to leave or permission) judge the same. But in other cases, being of les­ser offense, and so punished more easily, I think otherwise: Except perhaps we take that sentence out of the Comick Poet, and place it in Divinity; An Oath is for the keeping of a thing, not for the losing of it: For by that general Law it is provided, Lev. 5.4. —If a soul swear, pronouncing with his lips, to do evil or to do good, whatsoever it is that a man shall pronounce with an oath, and it be hid from him when he knoweth of it, then he shall be guilty in one of these. And whereas this cannot be [Page 73]understood of the Evil of guilt or of a crime (as we speak in the Schools) lest an Oath, which is a bond of piety, should become a bond of Iniquity: it follows, it must hold in an evil of punish­ment; in which kind it is neither lawful to refuse an oath, nor after it is taken to break it.

1. Not to refuse it. Solomon wittingly and prudently laid an oath upon Shimei, to the loss of his liberty, that he should not go beyond Cedron; and he lawfully laid this oath on him: and when afterwards Shimei (having sworn not to pass these bounds) yet did it, he lost his life for it, and justly, not onely for passing beyond Cedron, but for the violation of his oath, 1 Kings 2.43. What would you have? even prophane Shimei refuses not an oath, though to the loss of his liberty. Nor Micheas, who by the King was bound up under the Religion of an oath, (neither was that once onely, or that the first time, but it had been done sometimes before) when he was free, re­fused; but being sworn, refused not, but answered: though his certain punishment was before his eyes, though for his an­swer he was to be sent to prison, 1 Kings 22.16. By which example it appears, as well that it was then the custom in Is­rael to take an oath to answer, as also that the Prophet Mi­cheas durst not (perhaps he was ignorant of Gods Law in that point) do as we do now-a-dayes, either covenant that the oath shall not entangle us, or endanger our liberty; or if that may not be granted, then to use Tergiversation.

2. Not to break the oath. That is, (as the principal argu­ment) if it may lawfully be performed: for except it be so, rightly saith St. Augustine, Justice breaks unjust bonds. I hope the Magistrate shall not have less power then every one of the vulgar, and every private person: every of them have at least that small power. If he be sworn to his loss, yet he must not change in that he hath promised to his neighbour, Psal. 15.4. and if not his promise to his neighbour, then not to the Magi­strate, by a better right sure, or equal at least. What then? even prophane Esau revoked not his oath, though it was to the loss of his Inheritance. But that private men, once for all, may know under what Law they are in this case, it is not lawful, no not for a King, to do it: Zedekiah took an oath to his loss, [Page 74]and as at the first view it seems, even as well to his own sla­very, as the slavery of his people, Ezek. 17.13. he changed: but God both detested and revenged that fact of his. Nor is it lawful for a Commonwealth so to change: The Common-wealth of Israel made a League with the Gibeonites, and swore to it, and this was contrary both to their profit and the pub­lique command of God: Joshua (Josh. 9.15.) thought not fit to have it chang'd, and he thought right: The same oath Saul afterwards presumed to change, though he did it in zeal to­wards Israel, yet that was expiated, first, by the danger of the loss of his Kingdom, and afterwards by the cutting off his posterity, 2 Sam. 21.2. Therefore this is not lawful for a King, a Commonwealth, nor a private man to do. Now I conclude: So be it there be not danger of loss of life in it, in matters and causes, which are punished either by pecuniary Mulcts, or by imprisonment, it is lawful for the Subject to undergo that oath, and for the Magistrate to require it. But in this point is much doubting; this Oath, how far it is law­ful, and in what manner an case? Which whilest I treat of, all my action is (as they call it) the pursuing of the Judicial pro­ceedings, by which it may be known at length, in which way we may go where we may go no further: and hereof I see three parts, (as for as concerns our purpose) which are thus designed in holy Writ, 1. The admission of the suit or com­plaint, as the Hebrews call it; that is, the entrance of the cause into judgment, out of Isaiah 1.23. St. Paul calls it receiving an accusation, 1 Tim. 5.19. The second is the state and positi­on of the cause, that is, the foundation of the suit or complaint, as the Hebrews give it the name out of Deut. 19.13. The Greeks call it, the matter to be judged and determined. St. Paul (if I be not deceived) sayes it is an end of strife, Heb. 6.16. The third is, Inquisition upon the proofs, that is, as the Jews call it a Per­vestigation or sifting of the suit or complaint, out of Iob 29.16. the Greeks call it a Structure of the cause. St. Paul calls it a confirmation, Heb. 6.16. (for with the fourth, which all men call the Sentence, I have nothing to do.) Therefore these three things are to be in all Judiciary proceedings, That the party ought to be lawfully questioned; after that, the state of the [Page 75]cause; then, the proofs are to be looked into. And in the first part there is no use of an oath, that I know or have read of: yet that I should enquire hereof, some mens error makes me do it, which error I shall lessen this day, (if it may be done) who think themselves not sufficiently accused, nay they think they shall accuse themselves, except an accuser step forth and shew himself; and who falsly and rashly suppose, and yet they suppose it, that that oath which is required of them for the stating of the cause, that is the second part, that is to be required to the first part, this is the admission of the suit or complaint.

So I propose it thus: In every suit or complaint the matter either is so apparent, as that it is manifest as well concerning the fact as the person: whether the person be deprehended in the deed doing, that is, (as they say) taken in the manner, as she was, Iohn 8.4. Or so with an high hand, or (as we use to say) with a notorious boldness, as attempted before the Ma­gistrate and all the Congreation, as was Zimri's wickedness, Numb. 25.8. In which cases so openly acted there was no need of accuser or witness: or if it be so, that the fact is ma­nifest, but the person is unknown; as in the deed body found, but the murtherer is not known, Deut. 21.1. or the person is known, but the fact unknown, as in Achans case, Josh. 7.18. In which matter so controverted, a man may, by the judgment of the Divine Law, be called into question four manner of wayes.

For either one may be brought forth upon some signs or presumptions, as in that first piece of Gods justice, (which all humane justice imitates) it was done against Adam, without an accuser, onely upon signs and presumptions, that is, that he fled, and hid himself amongst the Trees, (a sign of a guilty mind) Gen. 3.8. In the second piece of justice against Cain, that likewise was upon signs and presumptions, (that is, Abel appearing no where) effusion of bloud being found, Cains an­ger or envy towards Abel foregoing it, Gen. 4.6.10. This is the first manner.

The second is, Or one may be brought forth upon the im­peachment of another, as in that very first piece of justice; [Page 76] Adam onely was cited, but he being questioned (as usually it happens) impeaches Eve, she likewise the Serpent, Gen. 3.12. and so they two hereby were made parties guilty or de­fendant.

The third is, by Fame, or rather Infamy, as for the most part suspicion follows in the neck of the facts of wicked men, talk or fame follows the suspicion, and insinuation or complaint follows the talk or fame: And thus was the course against the Sodomites, Gen. 18.20. The cry of the sodomites is great, I will go down now and see, &c. saith the Lord. And af­ter the same manner were Inquisitions made both in the Law, If it be told thee, and thou hast heard it, Deut. 17.4. and in the Go­spel against the incestuous person, 1 Cor 5.1. It is reported.

The fourth is by Suggestion or Complaint, as in Iobs case, cap. 1.11. where the Accuser of our brethren (as St. Iohn calls him) would have made that holy man guilty of Hypocrisie, a false crime, yet a crime; and that partly juridically, un­der which name amongst the Hebrews they were called Ma­sters of the suit or controversie, Isaiah 50.8. (we translate it Ad­versary.) And here the punishment of the offending party was sought after, that he might give satisfaction to the per­son wronged; partly (as it is called) Evangelically, wherein one is denounced or reported to the Church, where onely the medicine or remedy is sought after, that the Church may have satisfaction in cause of scandal: In the first, the thing it self (as we use to say) speaks and impeaches the party guilty; in the second, one guilty person impeaches another; in the third, the speech of the people is the Accuser; in the fourth, any one under the proper and true name of an Accuser.

To this I adde a Fifth, but not (as these) as an ordinary re­medy to determine the controversie; but plainly an extraor­dinary one, not to be put in practice but in the Valley of A­chor, that is, against the troublers of Israel; (for so the word Achor sounds) that is, in some heinous wickedness, or the state of the Church and Kingdom being in danger: in such cases we run to extraordinary remedies, that is, to Lots as Io­shua did, which in certain causes is not granted, Iosh. 7.16. In this Ioseph made use onely of his own suspicion, Are not [Page 77]you Spies? (saith he) to see the nakedness of the Land ye are come, Gen 42 9. and when they denyed, yet without sign or token, fame or any Accuser, he questioned them, thrust Simeon into prison, and forced the rest to take an oath: Nor did they ap­peal to the Law of Nations, or complain that they were used contrary to Law and right. For where the peace of the Commonwealth is concerned, that is of such moment, that I doubt not, that God suffers his spirit of jealousie to come upon the Magistrate, touching the safety of his Israel, no less then he suffers the Husband to have his, touching the chastity of his Wife, Num. 5 14. For the matter in question, it is in a main degree, dangerous, that it ought not to be dissembled: and the persons with whom 'tis acted use not to bring in any witnesses, (but such as are guilty themselves) by whom hey may be convinced. And as to the crime we speak of, it is of that kind of wickednesse that leaves no prints, footsteps or marks behind it, by which they may be taken hold of: Wherefore in those cases it is no lesse lawful to question or accuse upon suspicion onely, then it is by the Pillory, Stocks, orA punish­ment amongst the Heathens, where the party was put into a Boat, and another Boat whelm'd over him. Boat, (for such purpose these things were in GodsJer. 29.26. Com­monwealth.) Either of which in other, either controversies or crimes, no man allowes. Well does Seneca (if I remember well) render the reason hereof, Where Villanies run riot beyond measure, 'tis unjust that justice should be tyed to degrees: to which that plainly extraordinary question of him, who about that wicked extraordinary act of Achan betook himself to lots, is not very unlike. The God of Israel would have them to be troubled, that go about to trouble the Israel of God: and hereof the Valley of Achor is a perpetual monument. Now, whomsoever the Magistrate calls in question by any one of these four, (or if it concern the peace of the Commonwealth, or of the Church, the fifth way either) foregoing, the partie is lawfully called. Nor is there any reason he should fear, that he should accuse or bewray himself, he is now lawfully accused and bewrayed. He is, now that he is accused and be­wrayed, to take care how he shall lawfully defend himself. And hitherto of the right of Accusation.

Now I assume the second. The matter being thus before [Page 78]the Judge brought into doubt, the party guilty or defendant, either confesses the crime committed, as Achan did, and then the Judge hath no more to do but to pronounce sentence; or (which is most commonly done) denies it: which Solomon most elegantly expresses, Prov. 18.17. He that is first in his own cause seemeth just, but his neighbour cometh and searcheth him. Now the party guilty or defendant denying, by repelling the objection, and the Agent or Plaintiff affirming his intention: thereon arises that contradiction St. Paul speaks of, Heb. 6.16. the bounder or end of which contradiction is, that which is every Judicature is sought for, as there the Apostle observes; but no bounder will be found, till the matter be put in an equal ballance, except the one party have a better confirmation then the other; 'tis the Apostles word in the same place, therefore 'tis the Judges part to enquire on which part that lyes. 'Tis but a light labour and little praise to end such con­tentions, as are easie and plain; but that's the worth of a Judge, to sift out such causes, where the right is obscure and perplexed: The cause which I knew not, I searched out, saith Iob of himself, Iob 29.16. And to do that dexterously and fitly is the honour of a Magistrate, saith Solomon, Prov. 25.1. to whom himself, that sentence he pronounced, in that most dif­ficult cause 'twixt the two Harlots, touching the uncertain mother of the surviving child, was an high honour, 1 Kings 3.27. But before these confirmations, that is, the foundati­ons of the cause, ought to be or can be set forth, it is necessary some state of the cause must be settled; or as it were a hinge must be, on which the cause may be turned, and that first of all to be made manifest, what and how far he affirms and the other denies, wherein each of the Litigants may rightly call the other, to set foot to foot and hand to hand. Sayes the Iew, and prudently does he say it, First of all place me the controversie upon his foundation; which except you do, (as very aptly some speak out of Prov. 21.) the whole Action is but meer vanity, tossed on this side and that side, this way and that way, 'twixt the Agent and Defendant: which as we cannot endure here in the Schools, much lesse ought it to be suffered in Judicature, whose proceeding thoroughout, ought to be solemn and [Page 79]sacred, and the very Justice of Justice, as it is, Deut. 16.20.

This subject matter to be judged, or state of the cause, or (if any would rather call it so) the bounder of the controver­sie, is to be sought out, either in the behalf of the guilty or defendant party, or of the Agent: Not of the Agent, often­times he cannot, because oftentimes there is none such, when one is called into question upon presumption, or else upon fame; and when there is, he is almost rapt and transposed, or is driven on, either out of hatred or some other oblique de­sire, that he himself is unstated; so that from him in vain is the state of the cause required: Wherefore to the party guilty or defendant is this favour granted, or rather this honor is given, (who is alwayes a person certain, and whom the Law ac­counts not convicted for guiltlesse) that he should either by affirming or denying fix to himself the state of the cause; yea, that by his answer onely the state of the whole controversie may be setled, and not onely the state of the controversie, but (except he be convinced of falshood by the testimony of two witnesses beyond all exception) an end too of the controver­sie. But that he may not, if he be loose and free, depart from that state so by him sixed, and afterwards not stand to that state, but shall recoil and go back from his purpose; a bond, a bond of the soul (as God gave it the name) he is to enter into, that is, a religious affirmation, by which his soul is as it were bound up with a chain, to speak out the truth holily and sin­cerely, that is, the truth (not that absolutely, but) as he knows it or believes it; nor must go contrary to his conscience, which we call lying, but even as he were acting with God himself, so must he act with the Magistrate, that is Gods Lieutenant, that represents him, and requires right.

That Israel and the people of God proceeded thus, (that is, swore to make true answer) that practice of Michaeas (of which I made mention above) and that, which is much apter, that other in that questioning of Elias, 1 Kings 18.10. evince it; where, when they had expresly answered, He is not with as, the King not herewith contented, forced them to an oath, that they had not found him: as if no Law could compell a man, to rest on the answer of a man unsworn. Wherefore as [Page 80]it is altogether fit, that the party guilty or defendant should be bound up, lest he might evade or change the state of the cause, and thereupon one state, and then another follows, and indeed so there will be no place of consistency or settling the cause: So he ought to be bound up, not with his bare naked answer, or (as others would have it) with a pecuniary Mulct, (these are not bonds of the soul, which is the Interpreter of Truth) but with that alone, true and onely bond of the soul, that is, by an Oath. And thus at length the whole hinge of the cause being fixed as it ought to be, let us proceed to those Confirmations, as St. Paul calls them.

Neither is it fitting (as I hear some complain) that the guilty or defendant party should be so bound up, and the Agent altogether free. Nor is our Law so: but as it is not safe for the party agent to be sworn, for the reasons that I have twice named,Apoc. 12.10. (and God himself suffers Satan, whom he knows to be a Calumniator, to be also an Accuser) yet the ac­cusation is so to be put into suit or action, and the accuser is so by contract to give security, under the penalty of a certain pecuniary Mulct, or of a certain note of Infamy, under the price of the loss of his time, Exod. 21.19. (as the Law speaks) except he pro­secute and prove the suggestion and accusation he hath given in: So it is provided for on both sides; on the one side by the Religion of an Oath, on the other side by a double Mulct, and no simple Infamy; so that the Agent cannot calumni­ate, nor the party guilty or defendant cannot fly back. Now that first of all the guilty or defendant party should be sworn, and then answer, (which some cannot away withall) it is just and lawful; for if he should do it unsworn, he should do it but in a trifling manner, (that is, being free from the Religion of an Oath) if any clause in the action should more closely presse him, he should refuse to answer, should turn himself to and fro, seek shifts, diversions and cautels, should answer nothing explicitely and home; that which in consci­ence of Religion he is tyed to do, after he has bound himself by oath to do all things holily and clearly, that he had rather be guilty of doing an injury then of Perjury, and would rather subject himself to losse then damnation.

Shall we take a form hereof from the Law and the holy Writ? none seems to me fitter for that purpose, then that questioning of Ezra, in the 9. and 10. Chapters of Ezra, where the parties guilty or defendant answer, but first were sworn: The order and course of which judicial proceeding was this; some of the principal persons come, and relate the matter to Ezra, of Marriages contracted by many (suppose an hundred and ten) with strangers, chap. 9.1. Ezra forces those guilty or defendant parties, even many of them not guilty or complained of, to take an oath, chap. 10.5. he forces them too in a cause, in which they might be convinced by witnes­ses: but first he forces them. After that, as in the 5. chap. 16. verse, Esdras with the rest, to whom the care of that cause was delegated, sit upon the cause, which the third Moneth after they bring to effect. Which form being used by Ezra, a ready Scribe, and skilful in the Law of his God, it may an­swer the desires of any man not unjust, as to the practice of the Law, as they speak) and the knowledge of the rules there­of. And this is the former use of an oath, just and lawful, in the settling of the foundation of a suit or controversie.

The other is, when arguments are used to make good the snit or controversie begun. Now the arguments, or these Confirmations, to which the Judge gives credit, are partly marks and presumptions, (such as the nature of the cause bears) certain and undoubted, partly in corrupt and sound testimonies.

Presumptions or marks, such as are brought forth by the Parents in the case of the slandered Virgin, Deut. 22.17. Te­stimonies, upon whose credit the whole action is confirmed, Deut. 19.15. In the number of which (I say of Testimonies) I place an oath, and that bounder of controversie, or (as they speak) that decisory oath of controversie, Heb. 6.16. The Hebrews out of the old Canon make two parts, or rather, if you will, two kinds of an Oath.

The former is a solemn contestation, wherein any call God to witnesse for want of other witnesses, who either cannot or will not bear witnesse, even God they call to witnesse, who is present every where and in all actions, and hath the right [Page 82]of a witnesse: The Lord Jehova lives, before whom I speak; this is a form of contestation, Iudges 8.19. The later I may call it an Execration, wherein a man gives oath to his contestati­on (or joyning issue in the cause, as 'tis called) pawning as it were his salvation, and renouncing all the hope and help he hath from God, if he bear witnesse falsly: So do the Lord to me, and so let him adde; there is a form of Execration, 1 Sam. 14.44. Neither have Divines thought it of lesse concern­ment, or that the guilty or defendant party was lesse bound, whether he used either of those forms, or both. I adde also, whether the Magistrate contest the guilty or defendant par­ty, or by adjuration he be execrated, or he do it to himself by taking an oath; for 'tis all one whether this or that be done: whether an oath be laid upon the guilty or defendant party by the Judge, or he lay it upon himself. And that they take for granted, as well by Prov 29.24. in regard of the po­sition, as by Iudges 17.2. by reason of the condition. But this controversie brings another: I prosecute not that, I pro­secute that I begun, touching Arguments.

Now God hath given power to the Judge to enquire of the Arguments touching the crime, and of citing the Testimo­nies; as also to the giving of oaths, and that for the collect­ing the confirmations of the cause. That power is mentioned Deut. 13.14. Thou shalt enquire (saith that Lord) and that in general; whereof he subjoynes two kinds, the first, Thou shalt search, that is, presumptions and arguments. The second, Thou shalt aske, that is, witnesses and those that are knowing of the passages concerning that cause.

The Arguments. So it was lawful for Joseph to search his Brethrens sacks, that he might find the Cup taken away by theft, Gen. 44.5. So is it lawful for our Magistrates to search the hidden corners and secretest rooms of the house, so to find out marks or presumptions of suspected crimes.

Testimonies. So it is provided by Gods Law, Lev. 5.1. If a soul hear the voice of swearing (the Chaldee Paraphrast, a most ancient Interpreter of the Law, hath added to it,Here seems to be some mi­stake in the printed La­tine. nor where we have erred; nor is it to be doubted but that it was according to the sense of the ancient church, even before [Page 83]Christs time) made or given by the Judge, and he can be a witness of that matter, as one that saw it and knew it, (in which place the Septuagint turns 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 'tis lawful to make inquisition, and upon oath.

And first of all 'tis 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 'tis 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 [Page 84]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 'tis lawful. But 'tis 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 'tis 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 [Page 85]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, 'tis 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 [Page 86]and am able. And also to the honesty of it; wherein they in Ezra 10.3. made provision, that is, According to the Law. St. Paul also, Acts 23.3. Commandest thou me to be smitten con­trary to the Law? This is sufficient for the second part.

3. In Judgment: that is, maturely not rashly; (for so do the Interpreters distinguish it.) Of which, sayes Solomon, Eccl. 5.1. whilest thou art speaking to God, Be not rash with thy mouth; but taking due time to deliberate thereupon, an­swer. These are the ends of an oath, which the Scripture acknowledges; nor do they require more, as it is defined, if these three ends be kept: 1. I will speak nothing but truth in the name of the Lord: 2. Of such things I know and as far as I am able, and according to Law: 3. Taking so much time to think on't, that there can be no danger from an infinity or endlesnesse. Though every petty question is not clear, (which often happens from the occasion) 'twill be safe e­nough to contain within these bounds; not to answer any thing falsly or rashly, nor to answer concerning such things which he remembers not, or is not bound by Law ot it: that is, he will do that, which without an oath he is bound to do. And he that desires to be more safe then thus, in my judgment rather desires to arrogate an infinite liberty, then to decline an infinite oath; or he is guilty, or something else that I will not speak of.

And now, whilest thou art taking care how to avoid a sin by swearing, I think it matters not much, whether before hand thou promisest by a promissory oath to speak truth, or af­terwards thou swearest by an assertory oath, that that which thou hast spoken is true: It comes to the same passe before answer, by promissory oath to promise to deal truly, or after answer by an assertory oath to attest, that thou hast dealt truly: I have said, and I will say: I have done, and I will do: there are two times, but the Oath is the same. Wherefore as to the matter I think it matters not much, yet thus far it may, that it much conduces to the managing of suits at Law, both that they may be clear and explicite, as also readily dispatch­ed. That they may be clear and explicite, lest (if the party guilty or defendant, being not tyed by the bond of an Oath, [Page 87]may seem to be at liberty to prevaricate) the whole contro­verted action may float up and down, and have neither foun­dation nor hinge. That they may be readily dispatched, lest (in case the party guilty having answered, will not swear to the truth of his answer) the Judge should be compelled of­ten to iterate the questions, and act the same thing over and over. It is also considerable too, because in that form of judgment, which is most agreeable to Gods Law,Era 10.5. and sutable to this Law of ours which is called into question, this order is observed; first of the Oath, and then of the question; and that at their request concerning whom the question is made. For whereas for the dispatching of controversies, Gods Law has made accurate provision; nor in Scripture is there no sooner made mention of judgment to be given,Exod. 8.14. then that it should be done speedily, lest if it be long in doing it become sour. Rightly did they require, Ezra 10.13. that he might not be necessitated upon the judgment-seat, to give answer to all questions: It was tedious, not the work of one day; there­fore after he had in a solemn place given them the oath, they might come afterwards at leasure, at times appointed, and enquiry might be made into the several circumstances of the fact, by virtue of the oath before taken. The same practice is used now by us, and the same custom prevails; which, whether you look upon the advice, is most just; or the Or­dinance, it is most like the Divine Law. For if the Questi­ons must go before the Oath, (so that it should be unlawful for any to take an oath but in open Court) surely one day would scarce suffice for one cause, and the people (contrary to Jethro's advice) should stand in judgment from morning to the evening.

That last is, which some (doubtless for want of under­standing) would have the Oath so given them; that after they had taken the Oath, there should be no farther enquiry: And this they hold, grounding themselves upon that sentence of St. Paul, An Oath is the end of all strife. Heb. 6.16. I stand not upon it that it may be so interpreted, that the original Greek word there peràs, rather is the State of the controversie then the End of it: But be it so, the end; let the Oath be the end, [Page 88]but not every Oath, or by whomsoever taken, or howsoever performed (this can scarcely be thought to proceed from a man in his right wits) but I hope it must be such an Oath, of the credit whereof there may be no contradiction: in case the Contradiction ought to be ended by that Oath. Wherefore if the Judge must end the Suite or Controversie without con­tradiction, it must be so clear, that no man even without Ex­amination, or after Examination, will or can contradict it. For to desire to free every Oath of every man from all Inqui­sition, what is it but to plead for perjury? What else is it, but as it were upon warning given, so by this kind of Au­thority given; to sollicite men of loose Consciences to com­mit this wickednesse? For whether the Actor, or Defendent, or Witness take it, the Oath is of the same Conscience, of the same face, there's an end: if one will swear that what he sues for, or complaines of is his, is true, presently he carries the Cause: But afterwards, it must be unlawful to enquire whether he hath sworn true or no, Because an Oath is the end of all Controversie. If this be granted, it makes well for per­jured men. Let them make their peace with God as well as they can; from the Law they need fear nothing, nor shall be punished by the eare for what they sinned by their mouth. How juster is that? Yea truly if the Oath be sound, let the Inquisition thereupon be twice, or thrice, or seaven times, if it be thought fit, it will alwayes as out of a furnace come forth more clear and pure, and the very Inqusition it self, will become an acquisition of more credit. But if the Oath be not of good, but doubtful credit or suspected: let it be in­quired into, and let Justice break unjust bonds. Surely this is reason, and is it only reason? Doth not the Law say the same? Whether one contend by oath, either in his own cause for himself, or in anothers against another for himself. For himself: The woman of suspected chastity, when she had upon her oath denyed the adultery, laying a most heavy curse upon her self if she were guilty; was she thereupon presently dismiss'd? (for an Oath is the end of all controversie:) No, a new question was made, whether she had sworn truly or no? for proof whereof she was to drink the Bitter waters, [Page 89]which would be the confirmers of the Oath if true, and the revengers if false, Num. 5.24.

Against another: When the Law had provided, that out of the mouth of two or three witnesses, who being sworn had given testimony against a man, the matter should be establi­shed, Deut. 19.15. Lest any man should take humane testimo­nies for Divine Oracles, in the next Verse 'tis commanded, that the suspected witnesse must stand before the Lord, the Priests, and it must be enquired into whether he hath carried himself sincerely and truly in the testimony he hath given; but if he be convicted of falsity, then shall he be punished as he should have been whom he complained of. But I shall transgress upon the time, and upon the Church too, (the Clock having a while ago called us off) if I should further follow these trifles, which whoever list my bray with argu­ments, they of their own accord so overflow: therefore I restore you to your selves and conclude.Isa. 28.17. If (as the Prophet saith) this Judgment, which we use, be laid to the Line, and Righteousnesse to the Plummet of Gods Word, there shall be in those things no sin. For the Magistrate to require, and that from the party guilty or defendant, (especially if the cause be not capital, or a cause of Bloud) an Oath; and that he may do it so far, whether it be that the controversie may thereby be set upon its foundation, whilest the state of the cause is sought for: or that the truth of the proofs may be made evident, whilest the question is handled. Nor does the ends of the Oath, or the order, or the examination, offend against Divinity, and therefore cannot be declined. They that decline it, first they do it out of ignorance of Gods Law: then the example is dangerous, that one may thus for his pleasure enquire into publick judgments without judgment: if we may call into question the rest of the affairs of the Kingdom, and the moments of the Commonwealth: lastly the Law it self if it make not for us. That God Almighty may avert this from us, to whom turning our selves let us pray, that he will give us grace to be modestly wise and sober in all things, to see in our minds how irreligious it is, how unchristian to decline the judgments of our Nation: but rather with all [Page 90]our endeavour, with all the strength and force of our Wit to maintain them, which maintain the Commonwealth and us all; for next after God and his service most true is that saying of Elihu, Judgment and Justice maintain all things. Job 36.17.

Upon the consideration most especially of what hath been written by Dr. Cosens, in that Apology touching the Oath Ex officio, and Purgation, and what is said in that short Manu­script, and in the Lord Bishop Andrews Determination there­upon, and of the inconveniences and hurt that probably may be feared to ensue upon the prohibiting that Oath and Pur­gation, together with the practice still at Common Law in the like cases, and the rest that is here set forth; as it is hoped that Act may be thought fit to be revised and re-examined, and perhaps altered: so with the like humility, all that is said or shall be said in this Treatise, is most submisly tendered to His Sacred Majesty, the Lords Spiritual and Temporal, and the Commons in this happy Parliament now assembled, to be weighed by them, if so to their Wisdoms it shall be thought fit; otherwise to be as unsaid and retracted, as is eve­ry thing there, if it be dissonant to Gods Word, His Maje­sties Prerogative, the Laws of Church or State, or the known Laws of the Land, or the just policy and government in Church or State, or against Christian charity or brother­ly love.

Should any man object, That some Civilians desired that this Act, whereby the Oath Ex officio and Purgation is for­bidden, should passe at the end of the recess of Parliament, the latter end of this last Summer, 1661. when many other Acts of great concernment were in agitation, and some then pas­sed, and some stayed, supposed that they will be resumed and considered of at the next meeting of Parliament: that, I say, this Act should not stay (as some would have had it) till that next meeting, but rather pass now, though with these Pro­viso's on it. I can say no more then this, that Certa incertis praeferenda; if they could not have all they would have, yet to have something, that in a manner wanted all, was but rea­sonable prudence: it had perhaps savoured of morosity to [Page 91]have done otherwise, especially considering that those that have long fasted would be glad to eat; though, I hope, these that administred this food to them, did not fear they would (as hungry men use to do) feed too fast, to their hurt, not to their nourishment, and therefore did set the less meat before them; but upon a pause after this refreshment there may be a supply: Neither need (I humbly conceive) any thing that is already done, hinder the review or alteration of this Act in that point. For it is no new thing nor discommendable, (but contrary) to make Laws upon present reasons or emer­gencies, and yet upon future accidents or contingencies, and variation of the times and occasions, and other necessary re­quisites, which could not well be foreseen at the making of these Laws, nor perhaps dreamt on till they happened; to al­ter, change or repeal the former. Hereof many instances might be given, but so plain a case I shall mention but one, and that in a matter of Ecclesiastical cognisance, touching Precontracts of Matrimony, in 32 H. 8. c. 38.

32 H. 8. cap. 38. What Marriages are lawful, and what not.

WHereas heretofore the usurped power of the Bishop of Rome, hath alwayes entangled and troubled the méer jurisdiction and regall power of this Realm of England, and also unquieted much the subjects of the same, by his usurped power in them, as by making that unlawfull which by Gods word is lawfull, both in marriages, and other things, as here­after shall appear more at length, and till now of late in our Soveraign Lords time, which is otherwise by learning taught then his predecessors in times past long time have been, hath so continued the same, whereof yet some sparks be left, which hereafter might kindle a greater fire, and so remaining, his power not to seem utterly extinct.

Therefore it is thought most convenient to the Kings High­ness, his Lords spirituall and temporal, with the Commons of this Realm assembled in this present Parliament, that two things specially for this time be with diligence provided [Page 92]for, whereby many inconveniences have ensued, and many moe else mought ensue and follow: as where heretofore di­vers and many persons, after long continuance together in Matrimony, without any allegation of either of the parties, or any other at their marriage, why the same matrimony should not be good, just and lawful, and after the same Matri­mony solemnized, and consummate by carnal knowledge, and also sometime fruit of children ensued of the same Marriage, upon pretence of a former contract made, and not consummate by carnal copulation, (for proof whereof two witnesses by that Law were onely required) been divorced and separate, contrary to Gods Law, and so the true Matrimony, both solemnized [...]n the face of the Church, and consummate with bodily know­ledge, and confirmed also with the fruit of children had be­tween them, clearly frustrate and dissolved: Farther also, by reason of other prohibitions then Gods Law admitteth, for their lucre by that Court invented, the dispensations whereof they alwayes reserved to themselves, as in kindred or affinity between Cousin-germans, and so to the fourth and fourth de­gree, carnal knowledge of any of the same kin or affinity be­fore in such outward degrées, which else were lawful, and be not prohibited by Gods Law, and all because they would get money by it, and kéep a reputation of their usurped jurisdicti­on, whereby not onely much discord betwéen lawful married persons hath (contrary to Gods Ordinance) arisen, much de­bate and suit at the Law, with wrongful veration, and great damage of the innocent party hath béen procured, and many just marriages brought in doubt and danger of undoing, and also many times undone, and lawful heirs disherited, whereof there had never else, but for his vain-glorious usurpation, béen moved any such question, since fréedom in them was given by Gods Law, which ought to be most sure and certain. But that notwithstanding Marriages have been brought into such an uncertainty thereby, that no Marriage could be surely knit and bounden, but it should lye in either of the parties power and arbiter, casting away the fear of God, by means and com­passes to prove a precontract, a kindred and aliance, or a car­nal knowledge, to defeat the same, and so under the pretence [Page 93]of these allegations afore rehearsed, to live all the dayes of their life in detestable Adultery, to the utter destruction of their own souls, and the provocation of the terrible wrath of God, upon the places where such abominations were used and suf­fered. Be it therefore enacted by the King our Soveraign Lord, the Lords Spiritual and Temporal, and the Commons in this present Parliament assembled, and by the authority of the same, That from the first day of the Moneth of July next coming, in the year of our Lord God, 1540. all and every such Marriages, as within this Church of England shall be contracted betwéen lawful persons, (as by this Act we declare all persons to be lawful, that be not prohibited by Gods Law to marry) such being Marriages contracted and solemnized in the face of the Church, and consummate with bodily knowledge, or fruit of children, or child being had therein betwéen the par­ties so married, shall be by authority of this present Parlia­ment aforesaid, déemed, judged, and taken to be lawful, good, just and indissoluble, notwithstanding any Precontract or Pre­contracts, or Matrimony not consummate with bodily know­ledge, which either of the parties so married, or both shall have made with any other person or persons, before the time of contracting that marriage, which is solemnized and consum­mate, or whereof such fruit is ensued or may ensue as afore, and notwithstanding any Dispensation, Prescription, Law, or other thing granted or confirmed by Act or otherwise. And that no reservation or prohibition, Gods Law except, shall trouble or impeach any marriage without the Levitical de­grées. And that no person of wc estate, degrée or condition he or she be, shall after the said first day of the Moneth of July afore­said, be admitted to any of the Spiritual Courts within this the Kings Realm, or any his Graces other Lands and Do­minions, to any processe, plea or allegation, contrary to this foresaid Act. Rep. 1 & 2 P. & M. 8. Rep. 1. El. 1.

This Act was not many years after repealed, as followeth.

2 & 3 Ed. 6. cap. 23. Part of the Statute of Precontracts repealed.

WHereas in the two and thirtieth year of the reign of the late King of famous memory, King Henry the eighth, because that many inconveniences had chanced in this Realm, by breaking and dissolving good and lawful marriages, yea, whereupon also sometime issue and children had followed, un­der the colour and pretence of a former contract made with a­nother, the which contract divers times was but very slender­ly proved, and often but surmised by the malice of the party who desired to be dissolved from the marriage which they liked not, and to be coupled with another: there was an Act made, that all and every such marriages, as within the Church of England should be contracted and solemnized in the face of the Church, and consummate with bodily knowledge, or fruit of children or child, being had between the parties so married, should be by authority of the said Parliament deemed, judged, and taken to be lawful, good, just, and indissoluble, notwith­standing any precontract or precontracts of Matrimony, not consummate with bodily knowledge, which either of the per­sons so married or both, had made with any other person or persons, before the time of contracting that marriage which is solemnized or consummated, or whereof such fruit is ensued or may ensue, as by the same Act more plainly appear: Si­thence the time of the which Act, although the same was godly meant, the unrulinesse of men hath ungodly abused the same, and divers inconveniences (intolerable in manner to Christian ears and eyes) followed thereupon, women and men break­ing their own promises and faiths made by the one unto the other, so set upon sensuality and pleasure, that if after the con­tract of Matrimony, they might have whom they more favou­red and desired, they could be contented by lightnesse of their nature, to overturn all that they had done afore, and not a­fraid in manner, even from the very Church door and Marri­age feast, the man to take another spouse, and the espouse to take another husband, more for bodily lust and carnal know­ledge, [Page 95]then for surety of faith and truth, or having God in their good remembrance, contemning many times also the com­mandment of the Ecclesiastical Iudge, forbidding the parties having made the contract, to attempt or do any thing in preju­dice of the same.

Be it therefore enacted by the Kings Highnesse, the Lords Spiritual and Temporal, and the Commons in this present Parliament assembled, that as concerning Precontracts, the said former Statute shall from the first day of Day next com­ming, cease, be repealed, and of no force or effect, and be redu­ced to the estate and order of the Kings Ecclesiastical Laws of this Realm, which immediately before the making of the said Estatute, in this case were used in this Realm: so that from the said first day of Day, when any cause or con­tract of marriage is pretended to have been made, it shall be lawful to the Kings Ecclesiastical Iudge of that place, to hear and examine the said cause: and (having the said contract suf­ficiently and lawfully proved before him) to give sentence for Matrimony, commanding solemnization, cohabitation, con­summation and fractation, as it becometh man and wife to have, with inflicting all such pains upon the disobedients and disturbers thereof, as in times past before the said Statute, the Kings Ecclesiastical Iudge, by the Kings Ecclesiastical Laws, ought and might have done, if the said Statute had never been made: any clause, article or sentence in the said Statute to the contrary in any wise notwithstanding.

Provided alwayes and be it enacted, that this Act do not ex­tend to disannul, dissolve or break any marriage that hath or shall be solemnizated and consummated, before the said first day of Day next ensuing, by title or colour of any Precontract, but that they be, and be deemed of like force and effect, to all intents, constructions and purposes, as if this Act had never been had ne made: any thing in this present Act notwith­standing.

Provided also that this Act do not extend to make good any of the other causes, to the dissolntion or disannulling of Matri­mony, which be in the said Act spoken of and disannulled. But that in all other causes and other things there mentioned, the [Page 96]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, its 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 [Page 98]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, 'tis 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 [Page 99]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 [Page 100]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 [Page 101]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 'tis 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 [Page 102]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, 'tis 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 [Page 103]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, [Page 105]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 voluminous to reckon up the several species of the sinister artifices and gins, which were then dexterously us'd in that Long Parliament, to promote unrighteous ends; very often by tumults, which were at the best of some factious persons, by clamours and menaces, as it were, to force away such Members as they knew would oppose their designs. By Petitions too, which were but a kind of Tumults too in ano­ther dress, and most shamefully carried on and gained many times; whether we consider the inconsiderableness of the Petitioners, Oyster-women, Barbers, School-boyes, (as in some Petitions against Bishops) if not others, as much if not more contemptible: or whether we consider the number of the Petitioners, many subscribing them that knew nothing of the contents of the Petition, if not sometimes giving power, with a strange implicite faith, to cerrain men of their Facti­on, to set to their hands to what Petitions soever their party should frame; the Petitions perhaps framed in London, and never sent into the Country, but thousands of hands sent up in Schedules, to be put to whatsoever the framers should please; if not also, which is much the same, some Petitions sent up out of far distant remote parts from London, with very many [Page 106]hands subscribed, and the Petitions after they were come up to London altered, and yet the same hands continued or set to it: Insomuch as in the time of that Long Parliament it was at least once observed, that some Petitions, or a Petition, with some thousands of hands subscribed, and coming from some parts remote from London, and brought into the House of Commons, and there read in the morning, took notice, be­ing mentioned in the body of the Petition, of some passages of words spoken in the House the foregoing evening: where­upon one merrily asked, What notable Mercury had that last night gone from London into those remote parts, and got so many hands in a nights time, and brought them back thither that morning? This did almost put some to the blush, if that had been possible; happy could it have suffundere sanguinem, ruborem; the want whereof did effundere sanguinem, cruorem: So common was this stratagem of Petitioning grown, that it gave occasion to some Satyrist, to paste up that Distich upon one of the Back-doors leading to the Lords House, viz.

Bellua multorum capitum populus fuit olim,
At nunc multarum bellua fit manuum.

It was long before the Romans would publish a Law a­gainst Parricide, and such unnatural and horrid crimes, and the Historian gives the reason, Ne dum prohibent, jubent; and haply that reason may well forbid me and others from too much enumerating the unjust subtilties and deceitful wayes of this kind; and rather were it to be wished, that if possible they were buried in perpetual oblivion, and no Topicks were left of them, except as Land-marks to avoid and detest them: For which ends, to good purpose perhaps it might be time well spent, to ruminate upon the Journals of the Long Parliament, with their Declarations, Ordinances and Re­monstrances, and His Majesties Declarations answering and confuting them, especially that of Aug. 12. 1642.

For reformation of such obliquities, of tireing out the Members, and surprising of them in a thin House, (for as to that way of Petitions and Tumults, 'tis to be hoped it will [Page 107]not be attempted again.) Some wished this might have been remedied, if thought fit, by fixing a competent time for so many hours of the day to sit in, not to be exceeded but by consent of the major part of the Houses, to be constituted as hereafter followeth.

That no Vote should have been passed in either House,A competent number of Parliament-men to be at every debate. without a matter of two parts of three, or more, (as should be agreed upon) of the House heard the matter fully debated; and that no matter to be debated should be propounded till such a number had been visibly present in the House, which might at the first sight have been easily discerned, if the seats in the House had been so particularly disposed, that without telling their particular number by the Clerks, or any other, it might have been known: which might have been easily done thus:

In the House of Commons,The manner how it may be constantly ob­served. each long seat in the upper­most part thereof, down towards the door, to contain thirty or forty partitions, or more or less, as the length of the seat will bear, so that in each partition there could but one man sit, and an order made which seat should be first filled, and which next, and so successively one after another, and none to go into the second seat till the first were filled, nor into the third till the second were filled, and so to the rest in like man­ner. And to make it at the first view clear, the number of every partition in order to be in great legible figures set over the head of the person that sits in that partition, as 1.2.3.4. &c. then it being known (being made so plain and certain) how many persons each seat, when filled, contained, as thirty or forty, &c. each seat being to contain equal numbers, if that may be, at least each seat of the side, so many and each at the end, so many equally. It is quickly determined, by seeing how many seats are filled, or how many are in such seats: whether the number required to be at the passing such vote, be then there or not. The seats for Privy Counsellors may, notwithstanding this, be distinct and kept for them, and for Committees some such course to be taken too, if need were, in a due proportion.

In the Lords House such distinctions of seats and partitions [Page 108]cannot be conveniently so done, in regard of the requisite priority of place there, which is otherwise then in the House of Commons; yet the competent number there, (that House being not near so numerous as the Commons House) which had need be as many in proportion as the Commons House, might have been quickly and easily discernable.

The number of forty in the Commons House, and a much lesse in the Lords House, though by many accounted to be a competent number to make up an House; we have seen how upon design ill use was made of it in the Long Parliament, which could not easily (perhaps not at all) have been done with so great a number. To instance no more, the pitiful number of Peers present at the passing that pretended Ordi­nance for the late Lord Archbishop of Canterbury's death, may be thought on.

Some advised,Fees to the Officers of Parliament. that it might have been considered, what Fees should have been taken by the Officers of Parliament, Clerks, Serjeants, and other Officers: some then conceiving them to have been very high.

Touching new Laws, Declarations, &c. to be made, and old Laws to be repealed and altered.

WE have seen in that Long Parliament what ill con­structions were made by some men of Precedents in foregoing Parliaments, accounting what has been once done there, quo jure, qua injuria, right and good, and to be deduced into practice; even those strange irregular acts in the tumultuous times of Richard the second, and Henry the fourth: nay, we have seen how Spen­sers Treason, distinguishing the person and office of the King, so declared to be Treason by Act of Parliament many ages since, even urged for right; to instance no more.

Some have advised, that such precedents, acts and pro­ceedings should have been examined, and by publick Decla­ration [Page 109]by Act of Parliament purged or abolished, or decla­red illegal.

And that,Acts of Obli­vion, &c. if but for that reason of preventing that male construction of citing ill precedents for Law, that an inspe­ction should have been made into the Acts of Amnesty and Oblivion, passed in the first years of the Long Parliament, and also that passed this last Parliament. We have seen, especi­ally if we looked Northward, how soon after such Acts of Indempnity and Amnesty, the Delinquents (as though they thought themselves justified in their former crimes) fell again into the same.

And that there should in those past (and due care be had for the same in the future) have been a specification made of the crimes and offences intended there to have been pardo­ned and put into oblivion, lest otherwise implicitely and in­sensibly they might have been taken not to be crimes, and Loyalty and Fidelity (tacitly at least) accounted crimes, and so creep into precedent and example for the future.

And that the first Paragraphs in the late Act of Pardon, In­dempnity and Oblivion, might, if thought fit, be considered of; where in the first place are pardoned, All and all manner of Treasons, Misprisions of Treason, Murthers, Felonies and Of­fences, crimes, &c. counselled, commanded, acted or done, since the first day of January, 1637. by any persons before the 24 day of June, 1660, &c. by vertue or colour of any command, power, au­thority commission, warrant or instructions from His late Ma­jesty King Charles, or His Majesty that now is.

Though there might be some obliquity, error or abuse in the execution of Commissions from their Majesties, yet some stumble at these expressions of Treasons, Murther, &c. to be committed by Commission from the King, as without all question was committed by Commissions granted by others, and yet here they look like equal and eaven crimes: which no loyal man can own. It neither hurts nor hinders the par­don, but rather more strengthens it, that the crimes pardoned are specified: and let the application be made onely to them that are guilty of them, not to the guiltlesse, and such as de­serve honour and reward, for that which some would at [Page 110]least imply to be criminal; much lesse no ignominy or re­proach.

Surely the Loyal party that acted according to the known Laws, for so acting needed not His Majesties pardon: Faci­nus quos inquinat aequat. Some men cannot think themselves cleared, except they can taint others guiltlesse with the impu­tation at least of these crimes, whereof they themselves onely are culpable; and it is a question, whether their true mean­ing be not, that they would have an Exculpation (a term we have more lately had from the North) and even a justificati­on from their known crimes, at least to be accounted no grea­ter crimes, then the actions of those that acted by the Kings authority, according to the known Laws of the Land, which they well know are no crimes, but the contrary.

It is obvious to every eye, how some have sweat to have justified all the illegal Acts of the Long Parliament. Some make little or nothing of the endeavours, that then were, to have killed the late King in Battel, but onely of putting him to death in cold bloud.

And that,Restitution of some goods where the pro­perty is not altered. if thought fit, that such goods whereof the pro­perty is not altered, as Houshold-stuff, Plate, Furniture of beds, Pictures, Hangings, eminent Jewels, or such like, plun­dered or taken away wrongfully, either by pretended Seque­strations, spoil or otherwise, should be restored to the ow­ners, or (in some cases) a just value repaid for them, with a just consideration to be had of the parties from whom they were taken, and of their actings; and not to remain, as they do, in the view of the owners, perhaps purposely in despight exposed to such publick view. This works contrary to His majesties pious intention, and that Act of Oblivion; it con­tinues, does not abolish, the memory of our former divisions, when the spoiled shall see, as a continual Eye-sore, their pro­per goods in the possession of the spoiler; whilest the spoiled for want of them perhaps is ready to starve, and perhaps the spoiler makes his livelyhood out of them, if not steps of pre­ferment too. The Heathen Poet could say of the Civil wars of Rome, ‘Bella geri placuit nullos habitura triumphos.’ [Page 111]But surely this looks like a continued triumph after the Warre.

Some have wished that that motion in the last Parliament,Reparation to persons spoy­led. or Assembly, or Convention, that ended in December, 1660. made in the Lords House, might be renewed, that the spoy­ed party might at least in some good measure be repaired by some publick Tax made for that purpose, and due considera­tion to be had of such suffering spoyled persons, that con­stant never-changing Loyalty may have some encourage­ment and comfort, besides that of a good conscience.

Some have wished that it might have been by Act of Par­liament declared,Touching the Long Parlia­ment. if thought fit, that the Long Parliament (notwithstanding that Act for the continuing of it till it should be dissolved by Act of Parliament) was dissolved or declared void and null, from such a day as should have been by advice of the Judges and learned in the Laws agreed upon.

And that also, if thought fit, consideration should have been had particularly from what time that dissolution, an­nulling or making void should have commenced; whether from the time that His late Majesty was driven from the Par­liament by tumults and riots; which, as is known, some, if not many Members, especially of the then Commons House, (in that Long Parliament) that took up Arms against the King, were so far from causing to be suppressed, though His Majesty desired it, that they were set on by them; as is notorious.

And also, if thought fit, that if not from that time, yet from the time they voted to live and dye with the Earl of Es­sex, by them voted to be their General against the King, and upon the matter causing those Members to leave the House that would not vote with them. And whether that His Ma­jesty calling them afterwards a Parliament, as they alledged, when they were in Arms against him, (though perhaps His Protestation to the contrary was entred in the Council-book) could any wayes entitle them to a lawful Parliament?

And also, if thought fitting, that it should have been by Act of Parliament declared, that any Member of Parliament [Page 112]offending against 25 E. 3. in raising or bearing Arms, or maintaining them against the King, ipso facto ceases to be a Member of Parliament, for that a Rebel and a Parliament­man are [...].

And also, if thought fit, that the Judges of the Land, con­sulting together, should have declared (as they did in King James his time, in that case about Watson and Clerk, the Semi­nary Priests, that the Kings Coronation was but a Ceremony, and that without it the King was a complete King) that that Long Parliament was dissolved from such a day, as they should have found by Law that it was dissolved or annulled; whether it was from the time of His late Majesties expulsion from his Parliament, as before; or from the time of voting to live and dye with the Earl of Essex, or of their Votes of no further addresses to the King, who called them to consult with him; whether they did not then openly dissolve them­selves, by refusing to consult with him? or from his death, when they could consult no more with him?

And also, if thought fit, that it should have been so decla­red and enacted, that though the King had passed an Act, that the Parliament should sit till they were dissolved by an Act of Parliament; and that if it had been expressed that it should be so, notwithstanding that His Majesty should dye in the interim; yet such an Act could not bind him nor his Succes­sor, especially when in that Act for continuing that Parlia­ment, till by such Act it should be dissolved, there is no such mention that it should continue after his death that called it; and that the King cannot be concerned, at leastwise con­cluded any wayes in any Act of Parliament, to his damage, prejudice or diminution of his royal Prerogative or Autho­rity, except at least) he explicitely and freely consent to it, & be specially comprized and named in that Act to that pur­pose; or whether he can though he so consent: it following plainly, that if by taking up Arms, or bearing Arms against the King, a Parliament-man ceases to be so, nor can sit any longer in the House. Then in that case none ought truly to be accounted secluded or excluded Members, but onely these that would uot then vote to live and dye with the Earl of [Page 113] Essex, nor would assent to the raising of arms against the King; but thereupon left the House, or were expelled thence either by the Votes of the rest, or by menaces, just fear, that might incidere in constantem virum, or by tumultuous force: so that if the Parliament (if not by the reasons aforesaid, yet) at least by the death of the King being dissolved, as to think the con­trary is most void of reason or truth; if, I say, it had not been so dissolved, then those secluded or excluded Members, they onely ought to have been restored, and none of the rest that acted against the King by taking up Arms against him, or acting against him, ought to have been restored: Such of­fended against the Act of 25 E. 3. raising Arms against the King, &c. counterfeiting or making a new Great Seal, &c. and their being Members of Parliament, being as before in­consistent; and for the void places His Majesty to issue out Writs for free, legal and new Elections.

And also, that the keeping of the Records in the Tower,The keeping of the Records in the Tower. should be in the hands of a known trusty Loyalist, and none other, in regard of the danger of imbezelling or corrupting them, by any person of other principles not affected to Mo­narchical government by Law established, to the great da­mage of the King and his Subjects.

And also, that the Militia,The Militia. and all Offices and places of trust and concernment, for the peace and safety of the King­doms, and for the prevention of future Faction, Sedition and disturbance of such peace, and endangering such safety, should be committed onely to the hands (and especially for a competent space of time, as by such free and legal Parlia­ment, or by His Majesty shall be agreed upon) of known ex­perienc'd Loyalists, and not to any that may be reasonably presumed or suspected to be otherwise. That rule may som­times hold, and not be rejected: Qui semel est malus, semper praesumitur esse malus, presertim in eodem genere delicti.

And also, if thought fit,Oaths of Alle­geance and Supremacy explained. that the Oaths of Allegeance and Supremacy, should have had some explanation, alteration or emendation, especially in that point of not resisting the King.

In the second Homily of Obedience, which book is confir­med by Act of Parliament, it is there expressed in terminis, as [Page 114]the Doctrine of the church of Engl. that it is not lawful in any case to resist the King. That this should expresly have been put into these Oaths, and that all persons whatsoever, which are to take the Oaths of Allegeance or Supremacy, or that have ta­ken them, may take them with such emendations; it being too notorious what strange interpretations have been made of these Oaths, as that they were made onely against the Pa­pal power, and as though nothing else were to be resist­ed. And in the beginning of the Rebellion in Scotland, the orthodox Divines of Aberdeen maintaining, according to that Doctrine of the Church of England, That in no case the King is to be resisted, and that so to do was contrary to Gods Words, and to the opinion and practice of the primitive Chri­stians: The other Divines, fomentors of that Rebellion ex­presly denied this, and alledged that the reason why the pri­mitive Christians resisted not, was because deerant illis vires; the very same reason that Bellarmine gives for he same: so well do these two Factions concur. Though by the History of those times it appears, and Tertullian openly pleads it against the Emperor, that it was not for want of strength, for they had enough, but that it was contrary to their conscience, gui­ded by Gods Word, so to resist. And therefore why not much need, that all persons whatsoever should take this Oath, to declare their opinion in this point?

And also,Robbery, the law to be [...] ­tered. if thought fit, that the Law concerning Robbe­ry ought to be in many cases, and especially for the first of­fence, mitigated, and not made capital: but that restitution be made to the party robbed, and if the Robber be not able to do it, then to be forced to work it out. Which course, some think, would probably more terrifie idle persons that turn thieves , who had rather dye desperately, then lead per­haps a long and wearisom life. Hereby many may repent and amend, and do good service to their King and Countrey. The party robbed also hereby gets restitution, which seldom or never happens as the Law now is. Our Law (contrary to the practice in other parts of the Christian world) hereby be­comes harder then the Levitical Laws: Some have hereupon said, that the Gospel, the Spirit killeth, and the Letter giveth [Page 115]life, contrary to St. Paul, which seemeth something Anti-Evangelical; The yoke of the Gospel should be easie.

And also,Against con­demnation upon a single testimony. if thought fit, that none should be condemned to dye upon a single testimony, when there is no other kind of proof by circumstances, or violent or vehement presumpti­ons, equivalent to a witness, that makes a kind of semiplena probatio at the least, as in the Canon Law: In the mouth of two or three witnesses every saying shall be confirmed, sayes the Leviti­cal Law: which is repeated in the New Testament, and in a manner at least is made Lex Evangelizata. The Law-maker (Truth, Justice in the abstract) could as well have said, In ore unius vel duorum testium, as duorum vel trium, if he had thought it so fitting: and yet (as before) the Gospel seems to pinch harder then the Law. To that Objection, That then many Malefactors would escape; it may be answered, That secret things belong to the Lord, and to him they are to be left, and that it is better ten Knaves should escape, then one guiltless man should be hanged. We have seen and heard, how even in a manner miraculously God hath often revealed murther and great crimes, that we may suppose, that when such crimes cannot be in the ordinary way detected, it pleases God they shall be done extraordinarily. Many instances might be gi­ven of the sad consequences, by putting to death upon the testimony of a single witnesse: Judge Fortescue, in his book De laudibus legum Angliae, relates a passage about a Gentle­woman in Sarisbury, that was put to death, even burnt at a stake, for murdering her husband, and that sentence given upon the testimony of a single witness, which witness not long after upon his death, voluntarily and in a most penitent manner confessed, he had given false witness against that Gentlewoman, and that she was no wayes guilty of that mur­ther for which she was put to death: And Judge Fortescue there speaking of the Judge that gave sentence against her, hath these words, (as I take it, or to this effect, the book is not now by me) as they are there in the Latine version out of the Law-French; Soepius iste judex mihi fassus est, quod nunquam in vita sua animum suum super hoc facto purgaret.

A notable instance this way (to relate no more, being nu­merous) [Page 116]happened in London not many years since, as 'tis cre­dibly reported: A young man, a Lawyers Clerk, made love to a Gentlewomans Chamber-maid, and a fellow-servant of the Chamber-maids, keeping company much with her, and the young man using also kind dalliance towards her, she con­ceived that he loved her better then the Chamber-maid; but afterwards perceiving she was mistaken, she boyled with re­venge against him, and the Devil watching as a roaring Li­on whom he may devour, instigated her to accuse him of theft, that he had stoln from her Masters house, and taken a­way under his cloak a Silver Boll: Upon this bare single testimony of hers the Jury found him guilty, he was condem­ned and dyed for it. Not long after the Chamber-maid, grieving for the loss of her espoused husband, seeing her fel­low-servants Trunk or Box unlocked, list up the Cover, and there saw that very Boll, which she very well knew, for which the young man was condemned and suffered; she calls up her master, who found it to be the same Boll, which she, he shewing it to her, could not deny; upon this she was pro­secuted, condemned and suffered death; and the Chamber­maid fell mad with grief, and dyed: And all this came from this judgment upon the testimony of a single witnesse. Should any object, That this might happen upon the testi­mony of two or more witnesses: It is possible, but not so probable; and the safe way is to follow the Rule afore-men­tioned.

In the case of Treason two witnesses are required, and ve­ry requisite: and in other crimes, capital especially when also in many cases that are not capital two witnesses are re­quired, why might it not be reasonably expected? though the atrocity of Treason is high, yet as to the person offend­ing and suffering the punishment by losse of life is little different.

And also,Touching Ju­ries. if though sitting, that Juries of life and death, as also in other Actions both criminal and civil, should be considered of, and better Juries impanelled then often are; and the Sheriff and Under-Sheriff, and other inferiour Offi­cers power in impannelling such Juries, be looked after. [Page 117]40 s. per annum, as is touched above, was in the beginning of that Law or custom of tryal by Juries, a good considerable estate, and so the persons probably more considerable and knowing. They anciently used to be twelve Knights, so sayes Sir Edward Coke in his Comment upon Littletons Tenures, ci­ting Mr. Lambert. Many instances might be given of the strange Verdicts given by some such Juries, out of their ig­norance, or wilfulness, or both; who oftentimes expresly deny to follow the Judges directions, but go quite contrary: but I spare to instance them, in reverence to the Law under which I was born and live, and the practice thereof, both which especially in most parts thereof, are very excellent. And we see what Pamphlets have been published by John Lilburn, if not by others too, affirming the power of Juries, not as is commonly held, to be onely in matter of fact, but in matter of Law too; and how they have controuled learned Judges in their Verdicts, and obstinately carried it against them: and how the meaning of that Axiom, Ex facto jus oritur, hath been extremely rack'd. The meaning of Legalis homo, to qualifie him to be of a Jury, is not, nor formerly was, meant to be onely a man of 40 s. per annum, but to be at least in some good measure in legibus peritus, as some are of opinion, and so as it were a kind of assistant to the Judge.

And also, if thought sitting,New Laws to be made upon new accidents. that new Laws should be made upon emergencies and accidents, when they happen, and are notorious and publickly known, be the crimes never so heynous and horrid. Till they have happened it may be thought fit, not to make a prohibitory Law against them for the reason afore mentioned, Ne dum prohibent, jubent.

As namely of making Eunuches of men or women.Making of Eunuchs. That case may be remembred of the Horse-gelder in Nottingham­shire, that spayed a young woman: and being a casus omissus, the Judge could find it no more then a misdemeanour. It hath been anciently forbidden by the Imperial Laws, and the punishment is capital. Cod. de Eunuchis lib 4 tit. 4.2. l. 1.

The stealing of a Winding-sheet out of a Grave.

That abominable basenesse of a woman and a Mastiff­dog,Stealing of the Winding-sheet out of the Grave. not far from Temple-bar London, not many years since: [Page 118]if the Law be not plain enough in that case, that it may be amended.

The stealing of men or women,Stealing of men, &c. girles or boyes, by these extraordinary thieves called Spirits, or others, to be carried into remote Plantations, where probably their Parents shall ever hear of them. Shall we provide good Laws against the stealing of our Cattel and our Goods, and not of our Chil­dren? Such kind of Plagiaries have been more taken notice of in other parts, and severely punished. St. Paul, 1 Tim. 1.10, amongst those against whom the Laws are made, reckons up the [...], Men-stealers.

And also,Against delays in Courts. if thought fitting, that a select Committee should be appointed to consider of the dilatory proceedings in all Laws both Ecclesiastical and Temporal, delaying of justice being almost as bitter as injustice, and the promise is as well not to delay justice, as to do justice. many instances might be given of delayes in justice, and perhaps none more then in actions upon the Writ of Formedon, especially where there are many Copartners, which I have heard some Common Law­yers complain of.

And also that sueh a select Committee should consider of Fees in all Courts,Fees in all Courts. and to fix a settled rule for them, that one­ly such may be taken as cannot justly be grievous to the Sub­ject, and yet may be sufficient for the Officers that receive them: due consideration being had of their respective qua­lities, pains, charges, and all incidents and circumstances concerning them; and of the great rates of all commodities, raised exceeding highly since the time that such Fees were settled, especially in Ecclesiastical Courts, 21 H. 8. this hath alwayes been a consideration for the raising of Fees.

And also,Against the non-examin­ing of witnes­ses upon oath in the Defen­dants defence. if it shall be thought fitting, that the practice of the Laws touching Non-admission of witnesses to be sworn upon oath, in defence of the party prosecuted against by the King, should be amended. And whether it seem not strange to some, that A. B. being indicted at London, for killing C. D. at Barwick upon Tweed, in such a place there, on such a day, about such time of the day; and the accused party endeavour­ing by the negative pregnant to defend himself, would prove, [Page 119]that that very day he was perhaps at St. Michaels Mount in Cornwal, about the same time of the day, and so could not be then at Barwick, and he produces sufficient witnesses upon this, yet they must not be examined upon oath; and why should the Jury rather believe witnesses without oath, then sworn witnesses, especially when they hear no just exceptions against the sworn witnesses? which haply the Defendant cannot at least upon an instant give, perhaps having not heard of them, till the very time of their production against him at his tryal; and the cause being heard so summarily as is usual, and so exceeding small time of defence given, that he cannot possibly enquire after them, to refute their testimony by just exceptions against them. The usual answer is, Witnesses must not be examined upon oath against the King, as though it concerned not the King as much to save a guiltless man, as to hang a guilty. It was accounted a good speech of that Ro­man Emperor, that said, Mallem unum servare civem, quam decem occidere hostes.

And also, if it be thought fitting,Against the examination of witnesses in the hearing of one another. that witnesses should not be examined, as usually they are at our common tryals, both in civil and criminal causes, openly in the hearing of one ano­ther; when it is to be feared that it hath happened some­times, that the craftiest witnesse has been put on to speak first, and he hath thereby given aim dangerously to the rest.

Should any object that in such summary proceedings it cannot well be otherwise: May it not be answered, that 'tis to be feared there may be more haste then good speed? and they might be examined privately and apart, not in the hear­ing of one another, even in such summary causes, almost in as short time, and according to the course of the Civil Law, that examines so apart; their testimonies, when all taken, might be published, and if need be even in their own presence, to confirm them viva voce. Daniels hearing of the cause 'twixt the two Elders and Suzanna seems to be summary, and yet he takes that course: had he not done so, probably it had gone hard with Suzanna; for it scarce can be supposed, but if the two Elders had been examined in the hearing of one another, they would have jumped in their testimony, and not varied, [Page 120]as they did in the species of the Trees; no doubt the latter would have concurred with the former.

And also,That persons wrongfully accused may have reparati­ons from the accuser. if it be thought fit, that though the parties be ac­cused in the Kings behalf, as commonly they are in cases of Extortion, or other crimes of offences; yet if upon the tra­verse they defend themselves, and prove themselves to be guiltless, they should have due reparation, both in point of reputation, and trouble, and charges, from the party that cau­sed them to be so indicted; otherwise 'tis very possible and probable, especially in point of supposed Extortion, for any man to be undone, when one or many, malitious or ignorant men, or both, may so, and very often indict any man, who, though he prove himself never so guiltless, and that it is no extortion but that the accuser was mistaken, and that it pro­ceeded from his ignorance or malice, or both: yet he shall have no reparation, and it is well known that some so indict­ed, could have proved themselves guiltless, but knowing it was very chargeable, and to have justified themselves so of­ten, as some malicious or ignorant men would have indicted them, would have quite ruined them in their fortunes; there­fore to prevent that, have betrayed their own innocence, con­fessed themselves guilty of the accusation, and paid the Fine or Mulct, as many degrees easier: This is hard, Crudelis est sibi ipsi, qui famam suam negligit; what then, qui prodit? May it not be enquired then, if it be not fitting, that both a more easie and less chargeable course might be taken upon the tra­verse, and also that the guiltless accused party should be duly repaired both in reputation, and in charges and trouble? though I am not so rigid as to think upon a Lex talionis, but in some few special cases.

Also,That the Act for abolishing the Court of Wards and Tenures may be repealed. if it be thought fitting, that the Tenures and Privileges taken away from His Majesty, in that Act of abolishing of the Court of Wards, and the Wardships also should be restored, (onely if any abuses have been crept in, in the execution, they may be regulated and amended) as that very able and most industrious Gentleman, Fabian Philipps Esquire, hath learned­ly aad fully set forth in that book of his on that subject, enti­tuled, Tenenda, non tollenda, or the necessity of preserving Te­nures [Page 121] in capite, &c. and if it should be thought fit still to con­tinue the abolition of Wardships, &c. whether the Tenures notwithstanding should be continued? and whether a fitter retribution to His Majesty should be made, then by Excise of Ale, &c. I need say no more of this, but let Mr. Philipps book plead for it.

And also, if it shall be thought fitting,Rates to be set upon some Commodities for the sale of them. that upon many more commodities then are yet, the known rate and value of what they should be sold for, should by indifferent and know­ing men be set down, considering the great hurt done by sel­ling many commodities at unreasonable rates, upon some ac­cidental straits, in regard of some accidents of time, place or persons; and many imposing upon the unskilful and unwary buyer very often, as is notorious, demanding more the dou­ble the price they will take. In forreign parts, both upon books and other commodities, fitting rates are by Authority set down, whereby the seller may have a just gain, and the buyer not be over-reached. Certum quid is the great satisfa­ction to the Subjects, as in Fees certain in all Courts, so at least in many commodities.

Also, if it be thought fit, that in point of dignity and pre­cedency,About digni­ty and prece­dency. a fixt certain plain rule might be set down; which probably would take away much emulation and grudging, and quarrels oftentimes, amongst many, if it were clear­ly once determined: And amongst others, if it were so deter­mined, who should have precedency, the eldest son of him whose father was a Knight, and the first Knight of the Fami­ly; or the eldest son of him whose father was but an Esquire, but the eldest son of a Knight, Senior to the Knight, father of the former, or whose Grandfather or direct Ancestor from whom he is lineally descended, and is eldest son and heir, was a Knight: the second conceiving it is his right, in regard he is the direct descendant and heir to the Senior Knight.

And that, if it shall be thought fitting, no person that bore Arms against the late King, or His Majesty that now is, or had any pretended Commission or authority so to do, shall own the Title of General, Lieutenant General, Major Gene­ral, Commissary General, Colonel, Lieutenant Colonel, Ma­jor, [Page 122]Captain, Lieutenant, Cornet, Ensign, or any other Title, by reason of any such pretended Commission or Authority; nor any person shall so call them by any such Title under pain of a great Mulct toties quoties to be inflicted, both upon the person that owns such Title, and on the person that gives it, or so calls them. Nemo ex delicto consequitur beneficium; and so bad a cause ought not in any implicite manner to be approved; and rightly considered, 'tis an infamy to the par­ties to be called so.

And also,Against the Act of limita­tion of actions in some cases. if it be thought fitting, that in regard that many, who took the Kings part in the late wars, could not have their right of suing for their own just due debts, owing them and contracted either before the wars, or in the time of the wars, in the Courts of Justice then in being; so that six years were elapsed, according to that Act of 21 Jacobi 16. touching limitation of Actions, and so they are thereby excluded to their great impoverishment. There should be an abrogation or suspension of that Act, so as to give remedy in this case, that the spoiled may have reparation or retribution of justice, (if not reward) for his Loyalty.

And also,Against mul­tiplicity of Statutes upon one and the same subject. if it be thought fit, that where Laws are doubt­fully penned, they may be explained, and where there are multiplicity of several Statutes touching the same subject, some repealing part of a statute, some enlarging and alter­ing, so that the true meaning of the Statute becomes difficult and perplexed, that in such cases all the said Statutes several so concerning the same subject, may be repealed, and one plain and clear Statute thereof to be made; as namely these several Statutes in the Reigns of King Edward 6. Queen Ma­ry, Queen Elizabeth, King James, and King Charles 1. touch­ing the prohibition of eating Flesh in Lent, and other Fish-dayes, and concerning Fasting-dayes, may be so repealed and made void; and one Statute made, clearly and plainly to comprehend all that is necessary upon that subject.

Touching Ecclesiastical Persons, Courts and Causes.

SOme have wished, if it were thought fit,The Clergies Proctors in the House of Commons. that now the Lords Spiritual the Bishops being restored to their right in the Lords House, that the Clergy should have their Proctors to sit in the House of Commons, (if they desired it) representing the body of the Clergy, as they used to do till about Henry the sixths time, or not long before, as it was then used, since which time it hath been disused. Some have affirmed, that a Clergy-man of competent tempo­ral estate, having in King James's time been chosen Burgesse for a Corporation, was not suffered to sit there, nor a Clergy­man to say Prayers there. Nor will some yield they can vote to chuse a Parliament-man, either in County or borough: so little of representation have they; and yet when in Con­vocation they give the King Subsidies, their grant must be confirmed by Act of Parliament. Anciently such care was taken that Bishops should be present in Parliament, that in their absence their Chancellors were summoned to sit there.

Also, if it be thought fit,About aug­mentation of Vicaridges. that whereas before the dissoluti­on of Monasteries, the Bishops had power to augment poor Vicaridges out of the Tithes of Impropriations, so they are now commonly called, though the true name is Appropria­tions, the Tithes having been appropriated to some Mona­stery or Religious house or other, before the dissolution, and after that falling into Lay-mens hands, who held them im­properly, living by the Altar and doing nothing there, got the Nick-name of Impropriators and Impropriations, which now holds good; such is the tyranny of Custom in this and many other cases. Or if there were no Vicaridge endowed, the Bishops might endow one, nay, and go so far as to leave to the Appropriator (which then was that Religious house to which it was appropriated, who then thought themselves as worthy to be kindly used, as a man would think our Lay-Impropriators [Page 124]can do now) not much more then a 50. part of the Tithes, or thereabout.

It seems hard that the Lay-Impropriator should have a matter of 200. or 300 l. per annum, Against Men­sals. or more, and the poor Vicar a matter of 20. marks, or 20. Pounds, or thereabout; and hardest in Mensals, that is, as it was usual, when a Reli­gious house could procure from the Patron the right of Pre­sentation to some Living near their Monastery, whither one of their Monastery might repair to officiate, and return home to his D'orter at night; then they often procured these Li­vings from the Popes, to be annexed and appropriated to their House, ad supportandam mensam, thereupon called Men­sals, the Cure to be so discharged by one of their House, and no Vicaridge to be endowed, and all the tithes and profits to come to the Monastery. And thus it stood at their dissolu­tion, and such small care was taken, that so they came into Lay-mens hands, who allow them something or nothing as they please, some inconsiderable small Tithes, or some pety small pension of 5. or 6 l. per annum, or sometimes somthing more or lesse.

Near Market Towns and great Towns commonly were one or more Monasteries scituared, and the Abbots and Pri­ors ordinarily got all or the most of the Livings in such Towns for Mensals, as before: so that wee see them at this day such pittyful small things as they are, and tenuitatem bene­ficiorum necessariò sequitur ignorantia clericorum: and in such Market Towns to supply the Vicar or Curate, Lecturers are taken in, and they must live of the benevolence of the people, which is usually, or at least amongst many of them more or lesse, as the Lecturers preaching pleases them; so he must hu­mour their fancies or fast. And there must be a Lecture-day commonly on the Market-day too, that the Countrey people coming thither may drink in his Doctrine; which often­times has been very strange, and what the consequence of this has been, we have sadly felt of late years, being not the least cause of our miseries; God grant it may be prevented for the future.

It is alledged, that the power of the Bishops in use and [Page 125]practice before the dissolution of Monasteries for augmentation and endowment of Vicaridges is taken away, these Im­propriations being turned into Lay-fees. Yet, I humbly conceive, (salvo meliore judicio) that the King had no more transferred upon him, then what the Abbots and Religious persous had: Nemo dat quod non habet. Nemo plus juris in ali­um transferre potest, quam ipse habuit. Reg. juris. Nor was more transferred to the possessors or their Ancestors, then what the King had: If so, then what was legally done in such cases, by the Bishops before the dissolution; why may it not now be done too? and yet some moderate remedy should be found for the purchasers, especially those that have so long enjoyed them; and the Bishops, Deans and Chap­ters, and others, namely the Bishop of Lincoln, who had very many great Mannors taken from his Bishoprick, which are at this day in Lay-mens hands, and a competency, such as it is, made up to him, almost, altogether out of small Impropri­ations. He and others should be duly considered, and not de­trimented hereby.

And also, if it shall be thought fit,Touching the bounds of Ju­risdiction Ec­clesiastical and Civil. that the bounds of Ju­risdiction Ecclesiastical and Temporal, may be clearly set down and fixed, to take away all matter of contention, that for want of it may arise; so that probably as few prohi­bitions as may be, need be sued forth. But as they now are two Sisters, under one and the same Crown, so they may live peaceably and friendly for ever.

And also, if it be thought fitting,The Ordina­ries power a­bout distribu­tion of Porti­ons, &c. that whereas the Ordina­ry, according to Law and long practice, hath distributed portions to the widow and children upon Intestates goods, upon the Administrators giving up their Accompts to him, for which they enter Bond upon their taking out of Letters of Administration, which distribution and bonds, and bonds taken for performance of Wills, are by some excepted a­gainst: that that and all other just powers of the Ordinary may by Act be ratified.

And also, if it shall be thought fitting,Against con­currence of Jurisdiction, Peculiars, &c. that for the quiet and ease of the Countrey, and in regard sometimes of the in­convenience and disorder in the execution of Jurisdiction [Page 126]Ecclesiastical, no peculiar Jurisdiction, nor concurrency of Jurisdiction be suffered, (the parties that have Interest there­in to be otherwise satisfied.) The instances of the inconve­niences of such peculiar and concurrent Jurisdiction may be given, but I forbear lest I might seem partial.

That all Wills,All Wills, &c. proved at Lon­don from re­mote Coun­ties, to be transmitted into the seve­ral Counties. Inventories, Bonds for Administrations and Accompts, and other proceedings touching them, which in the late Usurpation were out of all places brought to London, and no Record thereof in the County or Diocese, where the deceased dyed; so that the Subject is put to great trouble and charge, sending to London when he hath occasion to use any of them, and may be forced to sue at London when he would recover his right thereupon.

That all such Wills, Inventories, Bonds, Accompts, and all other proceedings concerning the same, or true copies thereof, to be made valid and authentick by Act of Parlia­ment, be transmitted at the charge of the Register at that time, into the Registry of the Bishop of that Diocese, where the party deceased dyed, or had his principal mansion or dwelling house at the time of his death, or rather in regard of the largenesse of some Bishops Dioceses, including many Archdeaconries and many counties, they should be so trans­mitted into the respective Registries of every Archdeacon or Commissary of the said Archdeaconry, and that every person concerned may sue for their right thereupon before the Bi­shop of the Diocese or his Chancellor, or such Commissary or Archdeacon, or his Official.

During the late troubles the Episcopal and Archidiaconal power having been de facto abolished or suppressed, the Sub­jects have been forced to their great charge and trouble, to prove all Wills, and take Administrations, &c. at London, be­fore Commissioners or pretended Judges there for proving of Wills, and granting of Administrations, &c.

That the Act of 32 H. 8. about the prohibited degrees of Marriage,Degrees of Marriage. be by Act of Parliament explained.

That the late Traytors Heads and Quarters,Traytors heads. of the Murthe­rers of our late Soveraign, of blessed memory, and the others, that are set upon wooden stakes, should be set upon Iron [Page 127]pikes or stakes, as Piercy and Catesby's Heads were upon the Parliament House.

Touching the suppressing of all Books and Writings, published against the Regal Rights, or the Right of the Subject.

SOme have advised, if it be thought fit,About the sup­pression of se­ditious books. that a most choice and able Committee be appointed to enquire af­ter all Books and Writings whatsoever, which have spoke against the Regal Right, or the Right of the Sub­ject; that they may, as many as can be got, either be purged or burnt, and declared against by Authority, and not remain as apt fuel for a new flame, but be buried as far as can be in perpetual oblivion. And perhaps in the first place, as most pestilent, those Tracts that have 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 [Page 128]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 [Page 129]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 [Page 130]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 Printing­press. 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 'tis said King James put him upon) a Body of the Laws should be digested and compiled, and then by au­thority of Parliament be ratified.

Further touching Ecclesiastical matters.

The Ecclesiastical Courts proceeding according to His Majesties Ecclesiastical Laws,Ecclesiastical Courts to be Courts of Re­cord. sitting under the same Crown with all other Laws, some advise, if it shall be thought fit, that to all intents and purposes of Law they should be Courts or Record, as well as any other Courts.

By the Statute 31 Eliz. c. 12.Reading the Articles of Religion. the Incumbent is to read the Articles of Religion within two moneths after his Inducti­on: and 'tis said, some have not taken Induction at all, be­cause they would not read the Articles. Had the Statute li­mited it within that time after Institution, it had met with that fallacy.

In the form for Private Baptism,Signing with the Cross in Baptism. when the child privately baptised is afterwards brought to the Church to have the Baptism published, at the receiving the child then into the Congregation there is no Interrogatory, whether in the pri­vate Baptisme it had been signed with the sign of the Crosse, (as commonly, if not altogether they are not;) neither is [Page 131]there any mention then at the publishing of the Baptisme, of so signing it. And it hath been found, that some persons have pretended weaknesse in the Infant, when it was no so, onely to avoid the signing of it with the Crosse.

There being no Law that allowes private Churching of women,Churching of women pri­vately. it is wished it might be alwayes publick in the Church, and with a Vail: and if within the moneth the wo­man be not able to come to Church, to defer it till the reco­very of her health.

In Cathedral and Collegiate Churches usually one of the Singing-men (though in orders) gives the Absolution,Touching Ab­solution. and the Blessing at the end of Service; which some wish might be done by the Bishop of present, or Dean, or some dignita­ry, or more eminent person present.

And that the Anthems and other parts of the Service, which are performed singing, or in a singing tone, may be made more intelligible to all the Auditors; who many of them are scandalized by the contrary, which might be helped by some small alteration in the composure: so that (as sometimes was practised, and that without any hinderance to the harmony) first one of the Singing-men to declare out of what Chapter and Verses, or part of the Scripture, that Anthem is taken; or what Hymn or Spiritual Song it is: and then immediately before the singing each Verse, with a clear audible voice to read it. This would help much, but the best way were, that the Singing-men and Choristers were taught exactly to sing most articulately, clearly and plainly, and not to drown the words in their mouths that they cannot be understood; but openly and distinctly found forth every syllable, that they might be as well or better understood, then when they onely read them. And this hath been most commendably done by some expert Artists that way, and might by all: Mr. John Frost, late [...] Westminster, and one of the Gentlemen of His Majesties Chappel Royal, gave a most clear and most deservedly worthy to be imitated precedent hereof; then whom never any man read more plain and clear, and yet what he sung was (if possible) more plain and clear then what he read.

By the Statute for the tryal De Excommunicato capiendo, Touching the Writ De ex­communicate capiendo. the person excommunicate is to be published in his Parish Church, which sometimes the Minister refuses, or there is no Minister: In which case 'tis wished it might serve to have it fixed upon the Church, dore upon the Lords day, or a copy left at his dwelling house, and the forty dayes to commence from that time.

FINIS.

A Table of the Particulars contained in the Notes touching alteration of some Laws.

  • TOuching Parliament proceedings. Page 97
  • Ordinance of Parliament ibid.
  • Privilege of Parliament. ibid.
  • The Bishops Protestation. Page 98
  • The King none of the three Estates. ibid.
  • Proceedings of the House of Commone. Page 99
  • Age of Parliament-men. Page 102
  • Election of Parliament-men. Page 103
  • The great number of Boroughs and Corporations. ibid.
  • Touching the manner of proceeding in Parliament. Page 104
  • A competent number of Parliament-men to be at every debate. Page 107
  • The manner how it may be constantly observed. ibid.
  • Fees of the Officers of Parliament. Page 108
  • Touching new Laws. ibid.
  • Acts of Oblivion, &c. Page 109
  • Restitution of some goods where the property is not altered. Page 110
  • Reparation to persons spoyled. Page 111
  • Touching the Long Parliament. ibid.
  • The keeping the Records of the Tower. Page 113
  • The Militia. ibid.
  • Oaths of Allegeance and Supremacy explained. ibid.
  • Robbery the Law to be altered. Page 114
  • Against condemnation upon a single testimony. Page 115
  • Touching Juries. Page 116
  • New Laws to be made upon new accidents. Page 117
  • Making of Eunuchs. ibid.
  • Stealing of Winding-sheets. ibid.
  • Stealing of men. Page 118
  • Against delayes in Courts. ibid.
  • Fees in all Courts. ibid.
  • About examination of witnesses in defence. ibid.
  • Against the examination of witnesses in the hearing of one ano­ther. Page 119
  • Reparation to persons wrongfully accused. Page 120
  • [Page]The Act touching the Court of Wards and Tenures to be re­peated. Page 120
  • Rates to be set for buying commodities. Page 121
  • About dignity and precedency. ibid.
  • Against the Act for limitation of Actions. Page 122
  • Against multiplicity of Statutes upon the same subject. ibid.
  • The Clergies Proctors in the House of Commons. Page 123
  • About augmentation of Vicaridges. ibid.
  • Against Mensals. Page 124
  • Touching the bounds of Jurisdictions. Page 125
  • The Ordinaries power about distribution of portions. ibid.
  • Against concurrence of Jurisdictions. ibid.
  • Wills to be transmitted into the several Counties. Page 126
  • Degrees of Marriage prohibited. ibid.
  • About the suppression of seditions books. Page 127
  • Spensers Treason. ibid.
  • Goodwins book. ibid.
  • Bucks book. ibid.
  • Sir Edward Cooks writings. Page 128
  • Illegal and seditions Speeches. ibid.
  • The illegal Preface to the Propositions at the Isle of Wight. Page 129
  • Rectifying the Translation of some words. ibid.
  • Illegal Declarations. Page 130
  • The Printing-press. ibid.
  • A body of the Law to be framed. ibid.
  • Ecclesiastical Courts to be Courts of Record. ibid.
  • Reading the Articles of Religion. ibid.
  • Signing with the Cross in Baptism. ibid.
  • Churching of women privately. Page 131
  • Touching Absolution. ibid.
  • Touching the Writ De excommunicato capiendo. Page 132
FINIS.

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