book has by variety of proof so sufficiently made it good already But yet it is worth the setting down what some of our own Countrey-men have in their writings acknowledg'd to the very same purpose and those especially amongst the rest whose interest and high valuation which they pass upon the Laws of their own Countrey will not permit them to ascribe more to the Civil Law then the just truth will bear And it is most observable what King James himself the learnedest of all modern Princes said here in a Speech made to no less solemn assembly then his Lords and Commons of Parliament u 21. Martii 1609. which we have extant amongst his printed works As a King saith he I have least cause of any man to dislike the Common-Law for no Law can be more favourable and advantagious for a King and extendeth further his Prerogative then it doth And for a King of England to despise the the common-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-Common-Law it self doth allow it And therefore though it be not fit for the general government of the people here it doth not follow it should be extinct no more then because the Latin tongue is not the mother or radicall Language of any Nation in the World at this time that therefore the English tongue should onely now be learned in this Kingdome which were to bring in barbarisme And in another speech in Star-chamber x 20 Iun. 1616. printed also God forbid saith he the Law of Nations intending thereby chiefly the Civil Law should be barred in this Kingdome and that for two causes one because it is a Law to satisfie strangers which will not hold themselves so well satisfied with other municipal Laws another to satisfie our own subjects in matters of Piracy Marriage Wills and things of like nature And again when he was so mightily pressing to have had an union of England and Scotland under the same policy of Laws as they had but one and the same King in a speech made upon that subject y Ult. Mart. 1607. extant in his printed works he told his two Houses of Parliament that in point of conjunction of Nations the Civil Law ought to bear a great sway it being the Law of Nations These are the expressions of a King the interest of whose Crown and Scepter and the prerogatives thereunto belonging did depend upon the favour of another Law and yet he positively and in down-right termes in the face of all his people avows the Civil Law to be the Law of Nations and that all transactions of Treaty and of Trade with forreign Nations were dispatched by the rule and reason thereof and that the authority thereof was so great in the esteem of strangers that they would rest satisfied therewith when no municipal Law could satisfie them But in that he avers also that when the people of England shall exterminate that Law which must needs be when the practice thereof is quite taken away or thrust into a poor narrow compass their honour will be obscured and they will be in danger to be over-run with barbarisme it was never so well worth the observing as at this present time And it clearly shews that wise and learned King did perfectly understand the true use of the Civil Law for as the language thereof must needs be a means to maintain learning which does civilize soften the minds of men so there is no sort of learning with the which the matter of it does not correspond and participate but above all it does afford more and better rules for civil living and orderly conversation amongst men and for righteous dealing each with other then any other study or learning whatsoever But this practise and usage of the Civil Law in forreign parts is yet better confirmed by the authority of those who studying and professing the Law of England have been alwayes jealous of the rising and growth of the Civil Law in this Nation For though they have desired to keep it low here for what reason I need not mention yet some of them have freely enough owned how much it is in use and practise in other Countreys Sir Francis Bacon in his Epistle Dedicatory to the Queen set before his Maximes of Law after he had told the Queen that Justinian the Emperour did gloriously and yet aptly call the Body of the Roman Laws proprium sanctissimum templum justitiae consecratum a true and a most sacred temple consecrated unto justice he sayes that it is a work of great excellency indeed as may well appear in that France Italy and Spain who have long since shaken off the yoke of the Roman Empire do yet nevertheless continue to use the policy of that Law My Lord Ellesmere Chancellour of England as Sir Francis Bacon was in his speech of the Postnati does expresly deliver that the Civil Law is taken to be the most universal and general Law in the World Sir John Fortescue himselfe Lord chief Justice of England and afterwards Lord Chancellour in King Henry the sixth's dayes in his book wherein he does so highly magnifie and commend the Laws England above the Civil Law yet he could say z De Laud. legum Angliae ca. 9. That Civiles supra humanas cunctas leges alias fama per orbem extollit gloriosa The Civil Laws throughout the whole World are advanced in glory and renown above all other mans Laws Fulbeck also another of the same profession and of great learning does agree with the former in these words a In his parallel part 1. Epistle to the Reader The Roman Laws saith he in the times of Arcadius Theodosius and Justinian recovered their strength and shining to all the Common-wealths of Europe as the Sun to all the climates of the Earth have for their worthiness and necessary use and employment received entertainment countenance and great reward of Emperours Kings and Princes Likewise Mr Sâ—lden a Graduate in the Common-Law but a great Student in all learning and one that seems to have searched narrowly into the state of the Civil Law as it has stood in use and request in other Countreys as well as in England in all times in his additional discourse upon Fleta wholly spent upon that subject owns the entertainment and use of the Civil Law in the Western Countreys of Europe that had left to acknowledge the Roman Empire long before For in that discourse b Ca.
been writ about that ridiculous contradiction in adjecto of the two Houses coordination with the King the Monarch when as before is specified the King is the Head the Lords Spiritual and Temporal and the Commons the three Estates by several Acts of Parliament specified Lippis tonsoribus notum yet urged for designs mischievous abominably as we have felt As also that trayterous distinction of the Spensers Spensers Treason 'twixt the Kings Person and Office by two Acts of Parliament declared Treason yet in these late times maintained by too many Goodwins book for the justification of the murther of the late King and many other of that kind Goodwins book justifying the murther of the King Mr. Bucks book of Richard the third wherein he seems to impugne the right of the King from the daughter of King Edward the fourth wife to King Henry the seventh Mr. Bucks book of Richard 3. too much leaning to if not affirming Richard the thirds right by that monstrous Act of Parliament that illegitimates Edward the fourths issue In Sir Edward Cooks book entituled The third part of the Institutes of the Law of England Sir Edw. cooks Writings concerning High Treason and other Pleas of the Crown 1658. Printed at London by M. Flesher for W. Lee and D. Pakeman § Le Roy pag. 7. he puts it down there for Law upon the Statute of 25 E. 3. c. 2. De proditionibus That if Treason be committed against a King de facto and non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon granted by a King de jure that is not also de facto is void Strange would have been the consequence of this if Cromwell had been made King as some desired and a loyal man should have killed him in order to the restitution of the true King de jure our dread Soveraign King Charles the second Or should a loyal man for the same end have killed him though he had but de facto non de jure the title of Protector how far would that have extended by the words in the same § may be considered where he sayes that Statute of E. 3. is to be understood of a King regnant and as follows there and as he sayes most truly a Queen regnant is within these words Nostre Seigneur le Roy for she hath the Office of a King So perhaps it deserves to be examined whether some of note and power in the time of Cromwells Usurpation did not affirm that Cromwell was within these words Nostre Seigneur le Roy. In regard Sir Edward Cooks Writings are by many held in high repute and some have not stuck to style him the Oracle of the Law therefore his Writings require to be more strictly looked into and that if any errors be found therein they may be detected and expunged as being more dangerous then in other mens Writings not of so great repute Corruptio optimi est pessima Also it was advised Illegal and seditious speeches if it shall be thought fit that such Speeches as have been publickly made by any Judges or noted Lawyers upon the Bench or in any publick Assemblies against the Regal or Subjects Right or the Law of Nations which may give just offence to our Neighbours may be taken notice of and publickly declared against Such us that when that Act of 25 E. 3. was alledged to justifie Cromwells Usurpation and that Seigneur le Roy in that Statute included Cromwell the usurping Protector And that speech of a great Lawyer at the tryal of the Portugal Ambassadors brother when it was alledged that he was by the Law of Nations to be sent back cum postulatu to his Master the King of Portugal to be by him punished for his offence committed here and that that Commission for trying him here without the consent of the Portugal Ambassador was the first Commission that ever was granted here to try any Ambassador or his servant without the Ambassadors consent Even the Bishop of Ross Ambassador from Mary Queen of Scotland though she was de facto deposed or forced to renounce the Crown there when he had committed a great offence yet was onely dismiss'd and not further questioned But to all this and much more that Lawyer replied What have we to do with the Law of Nations if it be contrary to the Law of England One pretended afterwards to excuse him and that he spoke but according to the words in the Statute of 21 H. 8.21 where it is said We are free from any subjection to any mans Laws but onely to such as have been devised made and ordeined within this Realm for the wealth of the same c. which words are intended against the Papal Usurpation imposing Laws upon us As also if it be thought fitting The illegal Preface to the Propositions at the Isle of Wight that that Preface to the Propositions sent by the House to the late King at the Isle of Wight which seem to strike at if not to take away the Kings Negative voice in Parliament expresly contrary to many Acts of Parliament the Kings most known Prerogative and the most known Custom and Law of the Land be declared illegal and derogatory to His Majesties Prerogative and just right As also if it shall be thought fitting Rectifying of translation of some words that the translation of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Rom. 13.1 to higher powers altered to the supreme powers for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Pet. 2.13 is translated whether to the King as supreme The two Houses and Powers inferior many degrees to them have by some been interpreted to be meant by higher powers and strangely hath it been wrested if not exclusive of the King As also if it shall be thought fitting that that expression about the time of His Majesties coming over Illegal Declaration in one of the Declarations or Remonstrances that the Government was by the King Lords and Commons being derogatory to His Majesties Prerogative and Legislative power and the Government being in him radically and but derivatively and subordinately in any others for and under him Therefore to be considered of altered and amended As also The Printing-press if it shall be thought fit that the Presse be carefully looked into that no seditious Books or Pamphlets be vented to poyson the people or to confirm any in their bad principles The want of this care hath grown into a great Seminary of mischief which if nothing but our sad experience of it should make us more wary for the future As also A body of the Law to be framed if it shall be thought fit that according as was begun by the late Lord Chancellor the Lord Viscount St. Albanes which as 't is said King James put him upon a Body of the Laws should be digested and compiled
that in a little space of time it got footing also with the other sciences in France Spain and Italy and in all the Western part of Europe where it has been in greatest use and highest account as well in studies as in Judicatories ever since to this very age of ours Nay the Civil Law after it was once restored and taken notice of having long lain hid and concealed drew the hearts and studies of men after it in such wonderful manner and grew to that mighty eminence and power that the most were intent upon the study of it and but few in comparison lookt after any other learning Giraldus of Oxford charges it as a fault upon the students of his time and tells that one Martin a Clergy-man did sharply reprove the University of Oxford at a publick congregation for devoting themselves wholly to that study neglecting all other learning saying quòd leges Imperiales reliqua scientias omnes suffocaverant the Imperiall Laws had swallowed up all the other Sciences Also Daniel Morlaes in the same Century being in Henry the seconds time writes that the Law was so much studied in Oxford quòd pro Titio Seio Aristoteles Plato penitus oblivioni traderentur that Titius and Seius were minded altogether and Aristotle and Plato were quite forgotten And Roger Bacon that had made himself eminent in all the sciences did upbraid the Bishops of the same age for minding Divinity so little adding quòd cavillationes juris defaedarent Philophiam the sophistry of the Law would corrupt the true Philosophy Stephen Langton Arch-Bishop of Canterbury took up the same complaint in Henry the thirds time against the Monks of his time qui relicto agro veri Booz nempe sacra Scriptura ad alium agrum id est scientiam secularem pro cupiditate terrena transirent who through greediness of filthy lucre which was then to be gotten chiefest from the Law did forsake the knowledge of the Scriptures and hunt after secular knowledge The like lamentation was made by Robert Holcot of the order of the Praedicants in Northampton-shire in Edward the thirds time leges canones saith he istis temporibus innumerabiliter sunt foecundae concipiunt divitias pariunt dignitates ad illas confluunt quasi â—ota multitudo scholarum his diebus The Laws and Canons are immeasurably profitable in these times riches and honours spring from thence almost the whole number of Scholars resort thither for indeed the greatest professours in Theologie that were did so little content themselves with that one way of advancement that they did frequently assume degrees in Law to fit and qualifie them for other preferments also But sure it is these complaints and objurgations of private men could so little keep this luxuriant growth of the Law from spreading that the very Edicts and Decrees of Princes could not bring it down Matthew Paris in his History upon the year 1254. and in the Additions pag. 883. Edit Noviss makes mention of a constitution made and published by Pope Innocent the fourth by which it was ordained that no professour of the Laws should be promoted to any Ecclesiastical dignity in France England Scotland Spain and Hungarie and that from thenceforward the Imperial Laws should not be read in those dominions if the Kings and Princes so thought fit Pope Honorius the third forbad the reading or teaching of the Civil Law in Paris in the year 1220. i Ca. super spetuta ext de privileg Those Popes thought that the restraint of the Imperial Law would be a ready means to bring into request the Canon Law which was as it were but new set up Upon design therefore to bring into credith their own Ecclesiastical Law rather then out of any dislike of the Civil were those prohibitorie Decrees made however they very much failed of that effect that was intended them for we may have observed to this very time that all those Christian States that do acknowledge the Popes authority and power have so equally divided their respect between both those Laws that they have appointed to each their proper function designing the one to be serviceable to Civil matters the other to Ecclesiastical and so by such moderation have done very equal right to both At the same time that the Civil Law was publickly read at Bononia by the means of Lotharius the second it was brought into England by Theobald the Arch-Bishop of Canterbury and being publickly read in Oxford by Vacarius it grew so general a study and other learning was so much neglected upon it that King Stephen incensed thereat sent forth a peremptory command that it should be read in England no more that Vacarius should forbear to teach it any further nor that it should be lawful for any to keep any books of the Roman Laws by them Sed parùm valuit Stephani prohibitio nam eò magis invaluit virtus legis Deo favente quò eam amplius nitebatur impietas subvertere sayes Mr Selden k Dissertat ad Flet. cap. 7. parag 6. But King Stephens prohibition did prevaile but little for the power of the Law God prospering the same waxed the more vigorous when malice did most strive to destroy it Charles the ninth and Henry the third of France did also by sending forth their Edicts forbid the Civil Law to be taught in Paris or that any Degrees should be taken in that faculty Philip the fair and the Parliament of Paris anciently did straitly charge that no man should dare in any pleading to urge or cite the Roman Law against a special Law of the Nation In Spaine it has been made no less then a capital crime to offer or alledge the Roman Law as compulsive or binding And surely it is a high indignity to any Prince to have any forreigne Law set up against and to beat down his own And therefore in the erection of Universities in France the Kings have alwayes declared that their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the subjects should be any way bound thereunto lest they should seem to derogate from the Laws of their own countrey by advancing the Laws of strangers l Bodin de rep lib. 1. ca. 8. These and such like edicts declarations of Princes have been alwayes of full force and power as most justly they ought to be to limit the vast and universal power of the Civil Law and to keep it from getting above and prevailing over the Laws and Customes of their own Territories for that were no less then to worship two Suns in one and the same firmament and to call in the Roman Sovereignty which was long ago cast off But that the Civil Law should not be studied publickly taught no degrees taken in it nor cited in their Judicatories in a ministerial and subordinate way to their own municipal Laws and Customes or that
the Canon Law the better 124. yet be does make use of the Civil Law 163 Parents were bound to leave a cerâ—â—in part of their estate to their children 9. 141 Penalties added to Laws argue the power but not the justness of them 158 Punishments for the same offence may justly be greater in one place then in anothes 26 R Reason was given to be mans guide in all his actions 2. it is a beame of the divine light 5. the principles thereof all of them not to be discerned by all 21. is sometimes covered with falshood and is much darkened by other natural corruptions 23. not a more deceitful thing then it 24. then most evident when generally allow'd by all 30. not so requisite in publick Laws as in private 33. private politick and that of Nations to be gathered out of the Civil Law 53 Romes greatness and flourishing does demonstrate the excellency of the Laws wherewith it was governed 98 Rome was as it were the City of the whole World 98 Romes greatness to be imputed rather to their Laws then Arms. 99 Romans very greedy of honour in pursuit whereof they did many gallant acts and especially made such good Laws as they did 100 Romes universal rule a special design of God for the good of man which was the cause that Christ was born under that government 102 Romans when they conquered a nation did not disdain to take such Laws from them as they found to be very honest and rational 107 Roman Emperours some favourable to the Civil Law others bitter enemies against it and the professours of it 112 Robbery in the High way or at Sea or with Burglary punished by death at Civil Law 142 Roman antiquities would have been better known if the old books of the Roman Laws had been preserved 121 Reason vulgar and ordinary not suffient to judge of legal matters 147. 154 Romans through their universal sovereignty dealt in greater variety of business then any Nation 52. 155 Rome came under several formes of government and yet some part of the Civil Law was under all of them 157 Ransome paid for another though without his directions is recoverable from him 91 Roman Laws do onely carry away the name of The Civil Law 166 S Society Civil what the benefits thereof be 56 Succession to intestates goods how regulated by the Civil Law 84 Stoppage is an allowed way of payment at Civil Law 89 Ship or goods when saved by the pains or loss of another the Law will allow salvage or other recompence for it 90 Slavery and servitude out of use amongst Christians 143 Sea matters to be judg'd and tried by Civilians onely 148 T Torture as it is allowed by Civil Law justified 72 Theft by Civil Law punished by pecuniary satisfaction 142 V Vniversities of England why they practise the Civil Law 161 Vniversities of the World teach no other nor give degrees in any other Law but the Civil Law 152. 153. 172. W Wrecks by the Civil Law restored to the owners and go not to the King 21. ERRATA The Reader is first desired to take notice that the Printer by the absence of the Author and being not acquainted with the quotations of Civil Law has from fol. 4. to fol. 23. in divers places in the Margent erroneously set down the books for the Law printing lib. instead of l. which stands for lege When therefore the Law is quoted out of the Digests or Code within that compass instead of lib. read l. as in fol. 4. in the Margent liâ—t l. for lib. 1. r. l. 1. Fol. 4. in the marg litt r. for Minfinus r. Minsing fol. 19. lin 24. rigorem r. vigorem l. 33. for is not so r. is not to be fol. 20. l. 22. for rules r. rulers fol. 71. in the margent litt r. for lib. 57. r. l. 57. fol. 75. l. 10. for need not r. I need not fol. 158. l. 20. for they r. it fol. 175. l. 33. for natural r. unnatural fol. 181. l. 16. for as r. us The End Memoranda TOUCHING THE OATH Ex officio Pretended Self-Accusation and Canonical Purgation Together with some NOTES about the making of some New and alteration and explanation of some Old LAWS All most humbly submitted to the consideration of this PARLIAMENT By EDW. LAKE Philo-Monarcho-phil Justitia Reip. Basis LONDON Printed for R. Royston Bookseller to the Kings most Excellent Majesty at the Angel in Ivy-Lane 1662. To the Right Honourable WILLIAM EARL of STRAFFORD Viscount Wentworth Baron Wentworth of Wentworth Woodhouse Newmarch Oversley and Rabye Knight of the most Honourable Order of the GARTER MY LORD SUch hath been the power of Custom for many Ages that the Authors not onely of just Volumes but of small Treatises too have ever been desirous I know not whether I may say Ambitious to dedicate them to some person of eminent quality and condition as it were Clients to their Patrons for the protecting and crediting them Hereby the Authors have oftentimes gained their desires and the Patrons especially when the excellency of such Books did deservedly acquire it addition of honour and same and also propagated the continuance thereof to all posterity Numerous instances hereof might be given but Mecaenas may be instar omnium which name of a Nobleman hath in a manner monopolized all noble Patrons as Patron 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 My Lord I am far from having any such opinion of this small Treatise indeed not deserving that name being in great part but an epitomized Collection and the rest brief Memoranda's or Notes rather to excite others to proceed upon that Subject then to rest on this though if by this or any other Act of mine any accesse of Honour could accrue to your Lordship I hold my self justly obliged humbly to present and tender it But my Lord the full scope of my intention in this Model is to the best of my Judgment which I alwayes submit to better and of my skill and power to contribute something tending to the further happinesse and continuance of Truth and Peace with Justice and Honour in this Church and State now by Gods blessing to whom be all Honour and Praise ex post-liminio as it were freed from Slavery and Tyrannical Oppression and restored to a capacity of their pristine Beauty and Splendour by the most happy Restauration of our most Gracious SOVERAIGN whom God preserve This I am sure as my Heart prompts me to speak is my sole intention which aymes onely at the advancement of the Publick Good and is not tainted with any drachm of private Interest And my Lord knowing you do Patrizare that most honoured Father of yours whose Memory must never perish whose Losse this Church and State have too sadly felt but Quis talia fando c. and that I may say as Tertullian de Resurrectione carnis sayes of the Phoenix raised out of the ashes of his dead Sire Alter idem Justitiae Honoris cultor sincerus maximè as
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 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 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 't is 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 to recite Ecclesiastical Judges are not onely tyed by their offices and * Canon 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
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 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 expoliendoque 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 LEGVM OR THE LAW OF LAWS c. CHAP. I. That a Law ought to be agreeable to true Reason The first Book 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 factâ— laedunt pietatem existimationem verecundiam nostram ut generaliter dixerim contra bonus mores stunt nec facere nos posse credendum est sayes Papinian a 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 Lawes b Plutarch 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 Vnderstanding 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.
writing upon St Austin o De civit Dei lib 19. ca. 6. and Sir p ca. 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 the q l. 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 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 nor r More 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 And ſ Parat 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 and t Cowels 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 to u Which 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 plough-shares laid a little distance one from another and either tread 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 little x Gomez 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 when y l 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 out z Multis 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 be a Gomez 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 any b Si 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 he c L. 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 sayes d l. 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
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 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 o 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 p 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 q 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 r 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 the Law or the Civil Law because that Law all Nations do commonly use where agreement custome and particular Law is wanting Annaeus Robertus s 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 t 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
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 Justiniaâ—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 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 â—â—nder the rules and limits before spoken of The same Mr Selden also in his Mare Clausum c 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 â—r right of personal Postliminiage as were by the Civil Law and that goods cast away at sea do by the customes and ordiâ—ances of many Countreys accrue to the Princes themselves which by the course of the Civil Law were restored back to the â—wners or if they claimed not went to the first occupant â—t he commends the Princes of Europe for establishing the use 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 d 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 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
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 k 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 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 m 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 n 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 o L. ult Dig. de furt l. 1. parag generaliter Dig. de poen corporally not capitally Surely then in a 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 p 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 q 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 r 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 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
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 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 e Lâ— 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 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 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
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 bonumque 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 h 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 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 â—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 quià que 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 i 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 and partly in their own Languages with that variety and learning as much exceeds the former ages But to pass from what is observed by our own Countrey-men in this particular is not there an ancient institution of England that does clearly demonstrate the same thing for if we were not sure that the Civil Law did pass for currant and were generally embraced in forreign parts why should we alwayes to this very day observe to try and decide all differences that arise between our own Countrey-men and Strangers either upon or beyond the Sea in the Court of Admiralty where the proceedings are onely after the forme of the Civil Law And were it not to please forreigners in the Law they like and allow of we might when we had them here strictly hold them to our own Laws But since we must trade and traffick with them it were no indifferency to call them from the trial of that Law which they in some part know and is the Law of their Countrey as themselves make it to the trial of a Law which they know in no part and is meer forreign unto them Likewise if the Treaties that we have had with forreign Princes were surveyed it would be found that they run in the language and are transacted by the skill and knowledge of the same Law It is evident therefore that it is used and accepted of every where upon and beyond the seas since that where we deal with strangers most and have most variance with them there it is most used even amongst our selves And to the same ground and reason does Mr Selden in his discourse upon Fleta k Ca. 8. parag 4. impute it that the practise of the Civil Law has been continued alwayes in the Marshals Court here in England where divers causes might arise that might concern strangers as also in the Judiciall Courts in both Universities where strangers for study sake do frequently come to settle though for my part I cannot think that the Universities use it for any other reason then for the pure natural equity and sound reason that is in it above all the Laws in the World besides nor for any other end then that young men trained up and made expert in that profession when they come abroad might be more ready in all matters of negotiation and commerce that the Prince or State should in their dealing with forreign Nations have occasion to use them in when ever they were call'd to any such imployment to which the Laws of this Land serve nothing at all It is needless in so clear a matter to offer any further proof to convince our Countrey-men that all their neighbours beyond the Seas that are nevertheless wise rich and potent do suffer themselves to be judg'd and directed by the Civil Law and the professours of it I shall therefore as touching this particular add but two things which in my judgment are very well worth the observation The first is that Justinians Code which is a collection of the Emperours Laws onely from the dayes of Adrian unto the age of Justinian himself is in use even amongst the Turkes l Stephan Prooeâ—n in Novel nu 64. In order to which it was as Mr Selden saith in his discourse upon Fleta m Ca. 5. parag 5. that Mahomet the second but the first Emperour of the Turkes so called when he had won Constantinople from the Christians he commanded Maximus the Patriarch with other books to translate also into Arabick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the Imperial Codes which was done in futurum ut videtur Mahumedici imperii usum sayes Mr Selden that is to be useful for the Turkish Empire The second is that even in the territory of the Church where the patrimony and the jurisdiction of the Popes lieth this Law has in some cases an interest of guidance in the Tribunals there too And yet if the precious worth that is in it did not captivate them there are not forcible and weighty reasons wanting to make them abhor and decline the same For First some of the Christian Roman Emperours as Constantine Theodosius Martian and Justinian did ordaine divers Laws for the ordering of Church-matters and Church-men which since the Popes look'd upon as an usurpation and an incroachment upon their spiritual jurisdiction Temporal Princes being the disposers of temporal things onely as they suppose and not to meddle with spiritual it might well beget in them an animosity and dislike against the Law it self Secondly the Church has a large Law of their own the Canon Law and so large that it may be thought sufficient to set a rule to all that Churches affairs whatsoever and need not borrow help from any other Laws Thirdly there has alwayes been as it were an emulous contention which of these two Laws should be the most potent and spread furthest in the Christian World Fourthly the Popes in these latter ages have not stuck to make open protestation that the Pontificial dignity was rather to give Laws to the Emperours then receive any from them And are not these if there were no other grounds enough to make them tender how they admitted the Civil Law into their Territories yet such has been the power and force of that Law that it has got footing even in that Spiritual Monarchy for where sin against God comes
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 n 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 o 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 p De Nominat quaest 5. nu 14. Ca. 15. De sent re judiâ— 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 r De laudib Stilicon lib. 3. Rome was Armorum legumque parens quae fundit in omnes Imperium primique 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 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 Å¿ 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 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
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 quà m 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 Vlpian 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 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 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 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 y 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
then stand upon our own Legislative authority to which other Princes and people will not be obliged h Consuetudines vel statuta sunt localia sic non obligant nisi subditos Gail obs lib. 2. obs 124. nu 5. but we must be contented to stand and submit our selves to such a Law how forreign soever as is proper for those very matters and to which other Nations do refer themselves which is the Civil Law that Nature has breathed out it self in and Nations have consented unto And if it be so necessary for the carrying on of forreign affairs that they cannot be transacted without it this shews a necessity of admitting of it also in the agitation of certain matters and causes at home and amongst our selves for the more ample reward and encouragement of that profession which can never be maintained or upheld by the transaction of forreign affairs onely which is not desired neither in any greater latitude or measure then has been alwayes allowed it heretofore and where the Common-Law has never known to intermeddle and in which if the Civil Law should not be used questions and differences would arise and there would be no Law or Rule found to settle them which would be a very pernicious thing So that be the authority of the Civil Law forreign which it cannot be except it were imposed upon us by some other Nation or people or be it that it were of no authority at all but what the necessary assent of our own natural reason and the consent of Nations gives it yet it were strange that we should rather chuse to have no Law at all in those matters then to receive or entertain the same for a help to direct our judgments in them It being then so necessary a Law that but by the knowledg and conduct thereof forreign affairs cannot possibly be carried on and there would be a manifest failer of justice in other matters at home without it the supposed inconvenience of having two Laws in one and the same Nation so much urged against it will appear to be a very slender and inconsiderable thing for how can that inconvenience hurt us more then it does other Nations that have Municipal Laws of their own and yet do keep the Civil Law too Besides it is so far from being an inconvenience that it is both a benefit and an honour to a people to abound in justice and to have it rather supplied by two Laws then to fail in the doing thereof by having but one And though where there be two Laws and two distinct professions of them in one State if the matters and causes whereof they are severally allowed the cognizance be not certainly assigned to each that the one may not enterfire with the other there may arise a confusion of jurisdictions and the subject will be uncertain whither to goe for justice and may be in danger to be molested by both Courts for one and the same thing which were an intollerable mischief i Gravius privatorum damno peccatur eùm inter summos magistratus curiasve majores de imperio certatur Bodin de rep lib. 3. ca. 6. Yet the Courts of the Civil Law have alwayes had their limits particularly prescribed them and the causes within their cognisance punctually set down and if they hold plea of any thing else there is a known remedy to be had to stop them by bringing prohibitions from the Common-Law which are never so soon ask'd as granted But if the Common-Law Courts shall draw to their examination such matters as do properly belong to the Civil as they have done too often or do prohibit the Civil from proceeding where they know they can do no right nor give any relief themselves as in the business of allotting portions amongst the deceaseds kindred which they never did nor can do nor will suffer the Civil Law Courts to do it neither this an heavy vexation but the blame must lie upon them But to be sure whilest there is such a correcting hand over the Courts of the Civil Law there is little ground of fear that they can trouble or molest the people further then their just power does authorise them Which may be sufficient also to remove the jealousies of those that fear if the Civil should be admitted it may in time supplant and undermine the Municipal Law of this Nation For it were a vain attempt for subordinate Courts to go about to shake the standing of that Law to whose check and controule they lie continually subject And if in forreign Nations that have their Municipal Laws all of them but no profession nor Lawyers nor Judges but of the Civil Law onely there is not any found so bold and presumptuous that dares at any time to set up the Civil Law above the particular Law or Custome of the place though opportunities to do it are not wanting but that the particular Law or Custome if any be in the case does prevail and has the praeeminence alwayes surely then the Municipal Law and customes of England are much more secure from being invaded and incroched upon when not onely the Law is distinct but there is a distinct profession thereof also from the Civil Law that bears a watchfull eye towards its own greatness and which is more that has a controuling power and as it were a sovereignty over the other Besides the very principles of the Civil Law do run clean counter to any such design it being an express Maxime in that Law That the Municipal Law and custome of any State for what concerns those that are subject to it ought to be preferr'd before any more Universal Law that is 〈◊〉 the contrary Lex Municipalis sive consuetudo juri communi derogat k Gail obs lib. 3. obs 124. nu 2. Lex cujusque loci inspicienda est sive scripta sit sive non l Gl. in l. 5. parag 1. Dig. De jur immunit verb. legem Tam in decidendis litigantium controversiis is qui urâ—sdictiouâ— prâ—â—est conâ—uctud nâ—â— loâ—i in quo conâ—â—actum est observare â—ebet quà m in delictorum puntâ—â—â—ne ejus loci consuâ—tudinem in quo peccatum est â—sequi tenetur l. si fundus Dig. de evict Doct. in l. cunctos Co. De summ Trinit And as I have said before often so I must inculcate it here still The Civil Law where ever it is admitted it comes without the least prejudice to any either Law custome or government nor alters any thing but is an auxiliary supplement or a knowledg assisting in the administration of right and justice both to subjects and between Nation and Nation where there is no Municipal Law in the case or where it is imperfect and obscure or where a locall Law is of no authority at all In the one it supplies in the other it interprets in the last it moderates as a most indifferent Umpire So that of these two Laws the proper office and
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 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 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 matters be denied a subject against his King 7 Dead bodies not to be arrested nor touch'd in their graves 80 E Exarchate of Ravenna after Constantinople was the seat of the Empire was still governed by the Civil Law 118 England had the Civil Law read publickly in it as soon as it was restored in Italy by Lotharius 125 Ecclesiastical men and Ecclesiastical matters have been and may be regulated by temporal Princes 186. 162 Ecclesiastical men have through favour of Princes rather then of right been suffered to order some causes which are meerly temporal 186 F Fraud so detested by the Civil Law that sometimes it did dissolve the whole bargain sometimes it did enjoyn the whole true value to be paid where one was deceived in more then half the worth 12. never suffered to bring any advantage to the deceiver or to any one else 13. most detestable in those that the Law does most priviledge when deceived 13 Forreign States not to be judg'd by Municipal Laws 146 Forreign States why they do judge so much by the rules of the Civil Law 153 G Great men are not suffered to assume or protect the controversies or litigious suits of others 62 Guardians may husband but not sell the estates of their pupils 106 Government was at first without any Law at all 110 Government being changed the Laws seldome remain the same 116 Government howsoever changed yet the Civil Law is of use 157. 176 I Ingratitude does make a free gift revocable from him that is ungrateful 84 Italy was seven times brought almost to utter desolation in less then eighty years 114 Justinians body of the Law was compiled at Constantinople and kept out of Italy 500 years together 118. but prevailed altogether in the East ibid. Italy when it was possessed by the Gothes and Lombards some parts of the Civil Law were in use there still 119 Justinian is by some made instrumental in suppressing the old books of the Roman Laws after his collection was finished but without just ground 121 K Killing in ones own defence ought to receive no punishment 6. nor killing by chance ibid. A King by the Civil Law is no more absolved from the observation of the Law nor has any looser power over the lives liberties or goods of his subjects then by other Laws 19 Kings being driven out of Rome their Laws were never in use more 103 L Law what properties it ought to have and that chiefly it ought to agree with reason 1. 2. seq 46. it is but a determination of the Law of Nature 4. it must not onely not cross the first and chief principles of nature but not such neither as are any way though remotely depending on them 8. to be fairly and candidly interpreted and without any fraud 13. may profitably containe the very maximes of Reason 21. common capacities no good judges of Laws 25. and who are and what must be considered to judge rightly of them ibid. the severity of them to be imputed to the demerits of men 26. though not so rational as others subjects must acquiess in them till they be altered 31 Law of Nations is that which orders all affairs between Nation and Nation 59. to be known out of the Civil Law 61 Laws of the twelve Tables the ground-work and foundation of the Civil Law 104 Laws of all other Nations are gone and extinct with the States themselves excepting the Roman 110 Laws of some people more famous then others 111 Lotharius the Emperour was the restorer of the Civil Law when it was as it were extinct in Europe 122 Law forreign not to be preferred before the proper Law of the Countrey 125. 140. 144 Law of no Nation so sufficient but that another Law is needful 128. 144. 154 Law of government proper for the state it self is necessary in every Nation 129. 140 Laws of all Nations too imperfect for the multitude of cases that do happen 52. 144. 145 Laws not to be measured by their abuse or execution 28 Legal matters are to be judg'd by Lawyers onely 25. 151 Lawyers none in forreign parts but Civilians 152 Lawyers of the latter age more learned then those before them 160 Two Laws in one state not inconvenient 120. 154. 182 M Municipal Laws must be in every Nation 129. 140. and they to be preferred before any other Law or reason 103. 125. 140. 143. 144 Municipal Laws are too short and scanty to take in all cases that do arise 144 Merchants no fitting judges to trie and decide Sea causes 148 Men how much they differ in their tempers and so in their actions 25. 41. 53. 145 Monarchy is no looser government then any other 19 Military questions to be regulated by the Civil Law In the Epistle Municipal Laws have no degrees taken nor Lectures read in them any where but in England 152. 153. all that is good in them is taken out of the Civil Law 98. 164. N Nations not so abounding in all things but that they do or may stand in need one of another 155 Nations abroad do mainly practise the Civil Law in matters between man and man 128. 133. 159 Nations abroad are best satisfied by justice done according to the rules of the Civil Law 134 Nations in their dealing with one another must have some common Law to guide them 59. 146. 155 National differences not to be debated but by the Law of Nations and the reason of the Civil Law In the Epist and fol. 65. Natural Laws cannot be repealed 49. 174 O Offences though the same may be punished with more severity in one State then in another 26 P Parents could not give away nor forfeit their whole estate from their children by the Civil Law except in case of Treason 9 Proceedings legal how rationally ordered by the Civil Law 15 President or example no rule to judge by 38. 65 Promises if serious though without consideration are to be performed by Civil Law 87 Pope of Rome did make edicts against the Civil Law thereby to advance
Ministers are by Act of Parliament severely commanded to do it BY the late Act before mentioned where the Doubt so it is called there about the Coercive power in Ecclesiastical Courts is clear'd and taken away One Proviso is That that Act nor any thing therein conteined shall extend or be construed to extend to give unto any Archbishop or Bishop or any other Spiritual or Ecclesiastical Judge c. any power or authority to exercise c. If any be peccant that way it ought to be amended Another Proviso forbids any Archbishop Bishop c. to tender or administer unto any person the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment This being now forbidden by Act of Parliament every Subject ought to give obedience therein But some now insulting and upbraiding the Ecclesiastical Courts that all this while they have oppressed the Subject with that proceeding which the Parliament hath taken away renewing the old cry in Queen Elizabeths time and ever since against such proceedings which never till now I alwayes except what was done in the late times of usurped government were legally prohibited Though I am far from questioning the reasons whereupon that Act passed but do humbly submit to it both in word and practice yet I hope it will be allowed to make some defence against such persons as so tax such proceedings before the passing of this Act. And herein I shall follow that most able Civilian Richard Cosin Doctor of the Laws and Dean of the Arches in that his Apology for sundry proceedings by Jurisdiction Ecclesiastical c. Mr. Cambden as before mentions him with honour as surely he well deserv'd and that work of his if nothing else evinces it Mr. Swinburn in that Work of his of Last Wills and Testaments printed at London for the Company of Stationers 1611. in the first part sect 6. numb 8. fol. 17. writes thus of him and of that Work of his that Apology I find saith he written by that learned and no less religious man Doctor Cosins at I take it in that worthy Work entituled An Apology for sundry proceedings by Jurisdiction Ecclesiastical c. and so he goes on Upon this subject he hath written so fully that I believe little can be added to it and if any should go about it excepting such additions as well may be added by reason of some emergencies since the time he wrote and some other additions and explications not derogatory from him they would be forced very much to plough with his Heyfer which would but look too much like a Plagiary I could wish the book were reprinted and haply it will be so which may serve for Topicks to this subject For as all the Poets after Homer are said to drink of his Fountain according to that picture or statue of his that denotes as much with that Inscription Ridet anhelantem post se vestigia turbam Even so must I conceive all do from Doctor Cosin that shall write upon this subject I was upon Epitomizing that Apology of his and had made some progress therein but upon second thoughts desisted thinking it better to refer the Reader to him rather then to adventure to abbreviate him and thereby perhaps wrong him an offence that too many Epitomizers are guilty of therefore I say I shall onely make use of some Notes as confessed arrows out of his quiver and sippe of some others elsewhere and point the Reader to his full stream where any that list may drink their fill Upon these words in the late Act Provided that this Act. nor anything therein contained shall extend or be construed to extend or give unto any Archbishop Bishop c. any power or authority to exercise or execute c. any jurisdiction which they might not have done before the year of our Lord 1639. or to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters or affairs nor to confirm the Canons made in the year 1640. I say upon these words some are ready mistaking questionless the words and meaning of that Act to renew that old exploded Opinion or rather groundless Fancy That a several Royal assent to the executing of every particular Canon is required Hereto Doctor Cosin answers That admitting This were true then all the other opinions of those that oppugn the ordinary Jurisdiction Ecclesiastical stand in no stead and might be spared because this would cut off all at once For none that exercise ordinary Jurisdiction Ecclesiastical have it in particularity which by the oppugners seems to be meant otherwise then by permission of Law to every of their proceedings and impossible were it by reason of the infinity of it and troublesomness to procure such particular assent to the execution of every Canon His Majesties Delegates when Appeals are made to His Majesty in Chancery would signifie nothing could not exercise the power to them delegated by reason of the want of such particular assent and it is a gross absurdity to grant as even the Oppugners and Innovators do That Testamentary and Matrimonial causes are of Ecclesiastical cognizance to say nothing of the rest of Ecclesiastical causes and yet cannot by reason of this want be dispatched nor can be dealt in by any other authority according to any Law in force This would speak a defect in the publick Government that the Subject should have a right but no likely or ready mean to come by it and great offences by Law punishable and yet no man sufficiently authorized to execute these Laws Since the abrogation of Papal pretended Supremacy when the ancient rights of the Kings of England of being Supreme Governors over all persons within their Dominions as well in all spiritual or Ecclesiastical things or causes as Temporal and that no forreign Prince Person Prelate State or Potentate hath or ought to have any jurisdiction power superiority preeminence or authority Ecclesiastical or Spiritual within this Realm and so forth as in the Act and the Oath Since these rights were as it were ex postliminio restored and declared to have been as they ever ought to have been in the Kings of England many Laws have been made in several Parliaments for the strengthning of Ecclesiastical Jurisdiction and the more effectual execution thereof and some of the Ecclesiastical Laws were enlarged altered and explained * 25 H. 8.19 The Statutes for Delegates upon Appeals †27 H 8 130. 32 H 8.7 Not long after two Statues for assistance of ordinary Ecclesiastical Jurisdiction and for the speedier recovery of Tithes in Courts Ecclesiastical * 34 35 H. 8 19. The like for the recovery of Pensions Procurations c. †1 Ed. 6. c. 2. In the time of Edw. 6.
or Indicia or taking with the manner or other notoriety of the fact or impeachment by some of the Complices or collusion of the accuser or the not objecting in due time or when the Enquiry tendeth but to a spiritual punishment may severally any of them serve to warrant such enquiry with some observations touching the nature of most of these C. 8. That to proceed sometimes against an offence otherwise then upon Accusation or Presentment or then upon an Appeal or Indictment which two at the Common Law have respective correspondence unto the two former is no diverse much less any contrary or repugnant course to the Laws Statutes and Customs of this Realm This is proved by Common Law Statutes and practice in proceedings informative and punitive with answer to certain objections made to the contrary C. 9. How the second opinion here to be treated of is that no Lay-person may be cited of office in any cause but Testamentary or Matrimonial and that the drift of that opinlon is against proceeding of office in matters criminal The necessary use and equity of proceeding somtimes criminally by the Judges office in Courts both Temporal and Ecclesiastical C. 10. Conteineth an Answer to some further objections made against the conveniency and reasonableness of proceeding against crimes of office C. 11. That the Laws of the Realm do use Enquiries and Proceedings ex officio that they allow it in Courts Ecclesiastical with answer to some objections that are made to the contrary C. 12. Is set down a Reply to the Note-gatherers answers given to certain reasons that have been made long ago for to shew the like course to be also practised in Temporal Courts and an answer to his reasons brought to prove that in proceeding of office there is some contrariety unto the Laws of England C. 13. That the Enquiry ex officio against crimes is allowed both in Civil and Temporal Courts and in Ecclesiastical also by the two Laws Canon and Civil C. 14 Conteineth an answer to such objections as upon the Civil or Canon Laws are brought against all proceedings of office in causes criminal by the Treatisor and the Note-gatherer C. 15. Enquiry and proceeding of office without an accuser and grounded upon some other of the means afore proved sufficient to enter into such enquiry is approved by sundry examples of Scripture C. 16. An Answer is made to such objections as out of Scripture or Ecclesiastical Writers be made against criminal proceeding of office by the Note-gather and others In the third part he concludes upon the whole matter for which his Apology was made C. 1. Of the lawfulness of Oaths What an Oath is and the reason or original formal cause of the use of Oaths C. 2. An Answer to certain doubts made concerning oaths as namely why in Scripture God is said to have sworn how by Oath he is said to be called to Witness An Oath no tempting of God but a part of his Worship Why nevertheless some are repelled from taking Oaths Whether Adjuration be lawful After whose meaning an Oath is to be understood Whether every promissory Oath be simply to be kept Whether an Oath may be dispensed with and how far and whether a Christian may by mutual Oaths contract with him that sweareth by false gods C. 3. Division of Oaths according to the outward form of taking them according to the matter and inward form of them with plain description of every kind of Oath C. 4. That the Ceremonies used in taking and giving of corporal oaths with laying hands upon the Bible or Testament and swearing by the Contents of it are not unlawful C. 5. The true issue of the next Opinion in question Two sorts of crimes and offences prohibited In what causes an Oath here spoken of may not be ministred and the manifold convenience and necessity of an Oath sometimes to be ministred in a cause criminal and penal unto the party with some few objections touching inconveniences thereof answeted C. 6. That Oaths of men touching matters damageable criminal and penal to themselves are urged and acted by Temporal Courts and by the Laws of this Realm C. 7. Wherein are contained Answers to such Objections and Reasons as be made for proof of a contrariety or repugnancy in these Oaths unto the Statutes Laws or Customs of this Realm and a Reply to the Treatisours Answers made unto certain Objections supposed likely to be made in justification of this kind of Oath by the Temporal Laws C. 8. That ministring of such Oaths is by the Law of the Realm allowed unto Judges of Ecclesiastical Courts and some few Objections made to the contrary answered C. 9. That such Oath touching a mans own crime is allowed both by the Canon and Civil Laws how far and in what sort and that the like is establish'd and thought equal by the Laws and Customs of sundry other Nations as well ancient as modern C. 10. An Answer to some Objections pretended to be made against this kind of Oath from the Laws Civil and Canon C. 11. That not only such an Oath may be taken but also being by Magistrates duly commanded ought not to be refused is approved by Scriptures by practice of the Primitive Church and of late times together with a Reply unto certain Answers made unto some proofs here used C. 12. An answer unto such Objections as be pretended to be gathered from Divinity Divines and from the examples of godly men against ministring Oaths unto parties in matters of their own crimes C. 13. Four several opinions of the Innovators against the parties taking of an Oath in criminal causes with Answers also unto their Reasons and Objections C. 14. That a man being charged by authority to discover his knowledge touching some offence which his Christian brother is supposed to have done is bound to reveal it though it may breed trouble and punishment to his broaher and the Reasons to the contrary are answered and refuted C. 15. their Arguments are answered that condemn the ministring and taking of an Oath as unlawfull because they have not distinct knowledge given unto them of every particular before the taking of it and the like course by Examples is upproved lawful and godly C. 16. That after the party hath answered upon his Oath it is neither unusual unlawful or ungodly to seek to convince him by Witness or other trial if he be suspected not to have delivered a plain and full truth and somewhat also in approbation of Canonical Purgation with answers to the Treatisors Objections against them CHAP. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A Summary relation of what Doctor Cosens in his Apology hath asserted and made good by Gods word the practice of the Primitive Christians the opinion of the Fathers the Laws Canon and Civil and the Laws of the Land allowing and warranting them The like practice at Common Law and
not be good just and lawful and after the same Matrimony solemnized and consummate by carnal knowledge and also sometime fruit of children ensued of the same Marriage upon pretence of a former contract made and not consummate by carnal copulation for proof whereof two witnesses by that Law were onely required been divorced and separate contrary to Gods Law and so the true Matrimony both solemnized â—n the face of the Church and consummate with bodily knowledge and confirmed also with the fruit of children had between them clearly frustrate and dissolved Farther also by reason of other prohibitions then Gods Law admitteth for their lucre by that Court invented the dispensations whereof they alwayes reserved to themselves as in kindred or affinity between Cousin-germans and so to the fourth and fourth degree carnal knowledge of any of the same kin or affinity before in such outward degrées which else were lawful and be not prohibited by Gods Law and all because they would get money by it and kéep a reputation of their usurped jurisdiction whereby not onely much discord betwéen lawful married persons hath contrary to Gods Ordinance arisen much debate and suit at the Law with wrongful veration and great damage of the innocent party hath béen procured and many just marriages brought in doubt and danger of undoing and also many times undone and lawful heirs disherited whereof there had never else but for his vain-glorious usurpation béen moved any such question since fréedom in them was given by Gods Law which ought to be most sure and certain But that notwithstanding Marriages have been brought into such an uncertainty thereby that no Marriage could be surely knit and bounden but it should lye in either of the parties power and arbiter casting away the fear of God by means and compasses to prove a precontract a kindred and aliance or a carnal knowledge to defeat the same and so under the pretence of these allegations afore rehearsed to live all the dayes of their life in detestable Adultery to the utter destruction of their own souls and the provocation of the terrible wrath of God upon the places where such abominations were used and suffered Be it therefore enacted by the King our Soveraign Lord the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the authority of the same That from the first day of the Moneth of July next coming in the year of our Lord God 1540. all and every such Marriages as within this Church of England shall be contracted betwéen lawful persons as by this Act we declare all persons to be lawful that be not prohibited by Gods Law to marry such being Marriages contracted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had therein betwéen the parties so married shall be by authority of this present Parliament aforesaid déemed judged and taken to be lawful good just and indissoluble notwithstanding any Precontract or Precontracts or Matrimony not consummate with bodily knowledge which either of the parties so married or both shall have made with any other person or persons before the time of contracting that marriage which is solemnized and consummate or whereof such fruit is ensued or may ensue as afore and notwithstanding any Dispensation Prescription Law or other thing granted or confirmed by Act or otherwise And that no reservation or prohibition Gods Law except shall trouble or impeach any marriage without the Levitical degrées And that no person of which estate degrée or condition he or she be shall after the said first day of the Moneth of July aforesaid be admitted to any of the Spiritual Courts within this the Kings Realm or any his Graces other Lands and Dominions to any processe plea or allegation contrary to this foresaid Act. Rep. 1 2 P. M. 8. Rep. 1. El. 1. This Act was not many years after repealed as followeth 2 3 Ed. 6. cap. 23. Part of the Statute of Precontracts repealed WHereas in the two and thirtieth year of the reign of the late King of famous memory King Henry the eighth because that many inconveniences had chanced in this Realm by breaking and dissolving good and lawful marriages yea whereupon also sometime issue and children had followed under the colour and pretence of a former contract made with another the which contract divers times was but very slenderly proved and often but surmised by the malice of the party who desired to be dissolved from the marriage which they liked not and to be coupled with another there was an Act made that all and every such marriages as within the Church of England should be contracted and solemnized in the face of the Church and consummate with bodily knowledge or fruit of children or child being had between the parties so married should be by authority of the said Parliament deemed judged and taken to be lawful good just and indissoluble notwithstanding any precontract or precontracts of Matrimony not consummate with bodily knowledge which either of the persons so married or both had made with any other person or persons before the time of contracting that marriage which is solemnized or consummated or whereof such fruit is ensued or may ensue as by the same Act more plainly appear Sithence the time of the which Act although the same was godly meant the unrulinesse of men hath ungodly abused the same and divers inconveniences intolerable in manner to Christian ears and eyes followed thereupon women and men breaking their own promises and faiths made by the one unto the other so set upon sensuality and pleasure that if after the contract of Matrimony they might have whom they more favoured and desired they could be contented by lightnesse of their nature to overturn all that they had done afore and not afraid in manner even from the very Church door and Marriage feast the man to take another spouse and the espouse to take another husband more for bodily lust and carnal knowledge then for surety of faith and truth or having God in their good remembrance contemning many times also the commandment of the Ecclesiastical Iudge forbidding the parties having made the contract to attempt or do any thing in prejudice of the same Be it therefore enacted by the Kings Highnesse the Lords Spiritual and Temporal and the Commons in this present Parliament assembled that as concerning Precontracts the said former Statute shall from the first day of Day next comming cease be repealed and of no force or effect and be reduced to the estate and order of the Kings Ecclesiastical Laws of this Realm which immediately before the making of the said Estatute in this case were used in this Realm so that from the said first day of Day when any cause or contract of marriage is pretended to have been made it shall be lawful to the Kings Ecclesiastical Iudge of that place to hear and examine the said cause and