Laws Canon and Civil and the Laws of the Land allowing and warranting them The like practice at Common Law and at Geneva and other places pretending strict Reformation p. 24. Chap. V. That it is consonant to God Word to give such an Oath Ex officio or otherwise p. 28. Chap. VI. That the opinion and practice of the Primitive Christians and the Father of the Church was to administer such Oath Ex officio or upon Accusation and for Purgation Canonical with the practice at Geneva p. 33. Chap. VII That the like practice touching these Oaths is and was in all Forreign Christian Nations and other Nations not Christian guided onely by the Light of Nature p. 37. Chap. VIII That by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that Oath according to the Canon and Ecclesiastical Laws p. 39. Chap. IX That Oaths administred to parties touching matters damageable criminal and penal to themselves are urged and required by Temporal Courts and by the Laws of the Realm p. 41. Chap. X. The inconveniences and hurt that probably may follow by the forbidding the ministring of an Oath Ex officio or any other Oath whereby such person to whom the same is tendered or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment Praise of the Civil Laws Civilians first and last and greatest Sufferers Amity 'twixt both Robes His Majesties and the Lord Chancellors favours to Civilians TOUCHING The OATH EX OFFICIO AND CANONICAL PURGATION CHAP. I. The endeavours of the innovators to change the course of Ecclesiasticall proceedings That stupendious Fanatick Hackett his fearful end Mr. Cambdens judgment touching the Innovators Their perseverance in their design of Innovation in King James his time and afterwards The pretended taking away the coercive power from the Ecclesiasticall Courts how gained what use was made of it by the Innovators and how they boasted of their benefit by it Two passages in the Long-Parliament touching two Inconformists FOR many years together now last past some men have very earnestly endeavoured to have taken away or at leastwise have much alter'd the proceedings in the Ecclesiacal Courts of this Kingdom used according to His Majesties Ecclesiastical Laws touching the Administration of the Oath ex officio and at the instance or promotion of a party accusing or stirring up the Judges Office to any party accus'd or call'd or enquired after by the Judge Ecclesiasticall ex officio or otherwise whereby as they phrase it he must confess or accuse himself and so render himself liable to penalty or censure In the Reign of Queen Elizabeth they prosecuted it vehemently if not violently and as before that time some Anabaptists in Germany had done the like in such Cases Of their practises that way here that most Faithful Learned and Grave Historion of ours Mr. Cambden gives us an account in his Annals of the Reign of Queen Elizabeth printed at Leyden in the Low-Countries 1625. It is in the year 1590. After he hath there given a Relation of that stupendious and blasphemous Fanatick Hackett of his beginning how illiterate insolent fierce and revengeful he was that meeting one that had been his School-Master an ingenuous person under a colour of embracing him bit off his Nose and the poor miserable deformed man beseeching him to give it him again that whilst it was green and fresh he might sow it again to his face he would not do it but like a dogge swallowed it down and so averse was he to all piety that that heavenly Doctrine he had heard in Sermons he made sport with it with his pot-Companions on the Ale-benches Afterwards when he had prodigally wasted his Estate which he had got with a Widow whom he had marryed on a sudain he claps on the vizard of most specious sanctity is wholly taken up in hearing Sermons reading the Scriptures and pretending to I know not what heavenly Revelations and counterfeiting and extraordinary calling insinuated himself into the acquaintance of severall Divines that with inflamed Zeal labour'd to bring in the Presbyteriall Discipline of the Church of Geneva into the Church of England amongst whom was one Wigginton a Minister and if ever any an haire-brain'd one and a contemner of Magistrates Then he goes on and relates Hacketts and his Complices most horrid and ridiculous madness such as had not such a worthy author and others related it we might now doubt of the truth of it as the next Age will probably do of our Modern Fanaticks late pranks there he relates his fearful blasphemous speeches as he expired and was turn'd off the Gallowes upon whom that pious and Learned Author gives this grave censure Ita hostis humani generis dementas quos sanctitatem simulare ad sobrietatem nolle sapere deprehendit Thus the enemy of Mankinde infatuates those whom he perceives to be counterfeitors of holiness and will not be wise with sobriety And then after a line or two upon Arthington and Coppinger two of Hacketts Complices he goes on thus Nec hii soli sed etiam alii qui receptam in Ecclesia Anglicana Doctrinam Episcoporum vocationem damnando Praesules contumeliosè calumniando hactenus frustra impugnarant Nunc pertractis in eorum partes nonullis juris Anglici peritis in eorum Jurisdictionem delegatam à Regina in Ecclesiasticis causis authoritatem ut prorsus injustam linguas calamos strinxerunt declamando ubique etiam libris publicatis homines contra Regni leges in Foris Ecclesiasticis indignè opprimi Reginam ejusmodi authoritatem ex jure non posse delegare nec alios exercere delegatam Fora illa non posse a reo Jusjurandum Ex Officio exigere cum Nemo seipsum accusare teneatur Jusjurandum illud homines ad sui condemnationem cum ignominiosa confusione vel in spontaneum perjurium cum animarum exitio praecipitare Praeterea de aliis quam matrimonialibus causis non debere cognoscere ex hujusmodi Veteri Rescripto Mandamus Vice-Comiti Comitatuum nostrorum S. N. c. quod non permittat quod aliqui in Balliva sua in aliquibus locis conveniant ad aliquas Recognitiones per sacramenta sua faciendas nisi in causis Matrimonialibus Testamentariis Contra Juris Ecclesiastici Professores Regiam in Ecclesiasticis authoritatem propugnarunt utique Parlamentariâ Authoritate in Regina investitam Hanc oppugnare nihil aliud esse quam in Majestatem irruere Sacro Sanctae Praerogativae violato obsequii juramento insultare Fora Ecclesiastica de aliis quam Matrimonialibus Testamentariis posse cognoscere ex statuto Circumspecte agatis Articulis Cleri sub Edvardo Primo docuerunt Rescriptum sive legem illam prolatam suspectam esse quia temporis est incerti variae Lectionis Alibi enim
or Indicia or taking with the manner or other notoriety of the fact or impeachment by some of the Complices or collusion of the accuser or the not objecting in due time or when the Enquiry tendeth but to a spiritual punishment may severally any of them serve to warrant such enquiry with some observations touching the nature of most of these C. 8. That to proceed sometimes against an offence otherwise then upon Accusation or Presentment or then upon an Appeal or Indictment which two at the Common Law have respective correspondence unto the two former is no diverse much less any contrary or repugnant course to the Laws Statutes and Customs of this Realm This is proved by Common Law Statutes and practice in proceedings informative and punitive with answer to certain objections made to the contrary C. 9. How the second opinion here to be treated of is that no Lay-person may be cited of office in any cause but Testamentary or Matrimonial and that the drift of that opinlon is against proceeding of office in matters criminal The necessary use and equity of proceeding somtimes criminally by the Judges office in Courts both Temporal and Ecclesiastical C. 10. Conteineth an Answer to some further objections made against the conveniency and reasonableness of proceeding against crimes of office C. 11. That the Laws of the Realm do use Enquiries and Proceedings ex officio that they allow it in Courts Ecclesiastical with answer to some objections that are made to the contrary C. 12. Is set down a Reply to the Note-gatherers answers given to certain reasons that have been made long ago for to shew the like course to be also practised in Temporal Courts and an answer to his reasons brought to prove that in proceeding of office there is some contrariety unto the Laws of England C. 13. That the Enquiry ex officio against crimes is allowed both in Civil and Temporal Courts and in Ecclesiastical also by the two Laws Canon and Civil C. 14 Conteineth an answer to such objections as upon the Civil or Canon Laws are brought against all proceedings of office in causes criminal by the Treatisor and the Note-gatherer C. 15. Enquiry and proceeding of office without an accuser and grounded upon some other of the means afore proved sufficient to enter into such enquiry is approved by sundry examples of Scripture C. 16. An Answer is made to such objections as out of Scripture or Ecclesiastical Writers be made against criminal proceeding of office by the Note-gather and others In the third part he concludes upon the whole matter for which his Apology was made C. 1. Of the lawfulness of Oaths What an Oath is and the reason or original formal cause of the use of Oaths C. 2. An Answer to certain doubts made concerning oaths as namely why in Scripture God is said to have sworn how by Oath he is said to be called to Witness An Oath no tempting of God but a part of his Worship Why nevertheless some are repelled from taking Oaths Whether Adjuration be lawful After whose meaning an Oath is to be understood Whether every promissory Oath be simply to be kept Whether an Oath may be dispensed with and how far and whether a Christian may by mutual Oaths contract with him that sweareth by false gods C. 3. Division of Oaths according to the outward form of taking them according to the matter and inward form of them with plain description of every kind of Oath C. 4. That the Ceremonies used in taking and giving of corporal oaths with laying hands upon the Bible or Testament and swearing by the Contents of it are not unlawful C. 5. The true issue of the next Opinion in question Two sorts of crimes and offences prohibited In what causes an Oath here spoken of may not be ministred and the manifold convenience and necessity of an Oath sometimes to be ministred in a cause criminal and penal unto the party with some few objections touching inconveniences thereof answeted C. 6. That Oaths of men touching matters damageable criminal and penal to themselves are urged and acted by Temporal Courts and by the Laws of this Realm C. 7. Wherein are contained Answers to such Objections and Reasons as be made for proof of a contrariety or repugnancy in these Oaths unto the Statutes Laws or Customs of this Realm and a Reply to the Treatisours Answers made unto certain Objections supposed likely to be made in justification of this kind of Oath by the Temporal Laws C. 8. That ministring of such Oaths is by the Law of the Realm allowed unto Judges of Ecclesiastical Courts and some few Objections made to the contrary answered C. 9. That such Oath touching a mans own crime is allowed both by the Canon and Civil Laws how far and in what sort and that the like is establish'd and thought equal by the Laws and Customs of sundry other Nations as well ancient as modern C. 10. An Answer to some Objections pretended to be made against this kind of Oath from the Laws Civil and Canon C. 11. That not only such an Oath may be taken but also being by Magistrates duly commanded ought not to be refused is approved by Scriptures by practice of the Primitive Church and of late times together with a Reply unto certain Answers made unto some proofs here used C. 12. An answer unto such Objections as be pretended to be gathered from Divinity Divines and from the examples of godly men against ministring Oaths unto parties in matters of their own crimes C. 13. Four several opinions of the Innovators against the parties taking of an Oath in criminal causes with Answers also unto their Reasons and Objections C. 14. That a man being charged by authority to discover his knowledge touching some offence which his Christian brother is supposed to have done is bound to reveal it though it may breed trouble and punishment to his broaher and the Reasons to the contrary are answered and refuted C. 15. their Arguments are answered that condemn the ministring and taking of an Oath as unlawfull because they have not distinct knowledge given unto them of every particular before the taking of it and the like course by Examples is upproved lawful and godly C. 16. That after the party hath answered upon his Oath it is neither unusual unlawful or ungodly to seek to convince him by Witness or other trial if he be suspected not to have delivered a plain and full truth and somewhat also in approbation of Canonical Purgation with answers to the Treatisors Objections against them CHAP. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A Summary relation of what Doctor Cosens in his Apology hath asserted and made good by Gods word the practice of the Primitive Christians the opinion of the Fathers the Laws Canon and Civil and the Laws of the Land allowing and warranting them The like practice at Common Law and
at Geneva and other places pretending strict Reformation AS to the proceeding Ex officio or otherwise in the Ecclesiastical Courts according to Law and the due former practise nothing in that late Act is said against it and therefore implicitly at least it is allowed and approved Rati habitio mandato aequiparatur 't is a Rule of Law The Law in that case remains at it was before nothing need be said in justification thereof but only as touching the Oath Ex officio or other Oath not to be administred as there and touching Purgation Touching the Proviso's in that late Act that which forbids Ecclesiastical Judges to exercise any power c. as there and that other Proviso that forbids them to tender or administer unto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment I say touching the former Proviso he hath I conceive given full satisfaction in that his Apology in answering to the objeetions made in his time thereabout Therein also he clearly and fully justifies the proceedings of Ecclesiastical Courts in general and particular cases And to that other Proviso touching the Oath Ex officio or any other Oath and touching Purgation as in that Act I humbly conceive salvo meliore judicio he fully and clearly evinces it that the law and practice thereof was just to tender and administer the Oat◠ex officio or at the instance of a party for the finding ou◠or Simony Adultery and other crimes and deeds of darkness difficidimae probationis so that evil may be removed from the Land Alwayes provided that there was just cause for the Ecclesiastical Judge so to tender and administer that Oath that is that there was before such oath was so administred or tendered to any party due proof made of a common fame that the party was guilty of such crime touching which such oath was to be ministred or at least there was as in some cases denunciatio Evangelica or canonica or insinuatio clamosa or other sufficient indicia praesumptionis or suspicionis to induce the Judge to tender that oath and so the practice alwayes was and if it ever was otherwise as I believe that will scarcely be proved it ought not to have been He sets down the due cautions that ought to be had when it is very probable that the person to whom that oath is tendered will forswear himself then to forbear it and that in capital crimes to the danger of loss of life or limb it is not the practice in any Courts to administer such oath for that very fear of Perjury it being too much to be feared that too too many would rather forswear themselves then endanger either life or limb though in some places of Scripture it appears that even in such cases such oaths have been administred The Father of lies could speak truth in such a case Job 2.4 Skin for skin or rather as some learned in the Hebrew would have it Skin after skin and all that a man hath will he give for his life There also he shews the weakness and inconcludency of that vulgar Saying Nemo tenetur seipsum prodere or accusare being indeed the trite and general objection That a man is not properly said to betray or accuse himself when as publick fame or other sufficient indicia presumptions or suspicions have accused him these are instead of the accusers and it seems dis-ingenuous at least in those especially that pretend to Learning and have or might have examined the Canons and Ecclesiastical Laws in that point to urge one piece of a sentence and leave out the rest where they found or might have found that sentence Nemo tenetur seipsum prodere or accusare they did also or might have found that which follows in that sentence viz. Sed proditus per famam tenetur seipsum ostendere innocentiam suam purgare Mat. 4 6. The accuser of his brethren cited Scripture to our Saviour sayes he He shall give his Angels charge concerning thee and in their hands they shall bear thee up c. leaving out that in the Text that follows after these words Psal 91.11 He shall give his Angels charge concerning thee that is to keep thee in all thy wayes which alters the case That note or comment upon the Law or if they will needs call it a Rule or Maxime it matters not Nemo tenetur seipsum prodere vel accusare sive propriam turpitudinem revelare is to be understood in crimes simply secret and which are no wayes disclosed or come to light But when such secret sins are by some of those wayes that open a way to enquiry of a person supposed criminous come abroad and so in some sort are manifested then those former rules cease and that of St. Chrysostom comes in Homil. 31. ad Hebraeos Non tibi dico ut te prodas in publicum neque apud alium accuses but upon such disclosing then Proditus tenetur seipsum ostendere innocentiam suam purgare This is for the avoiding of scandal and that the party may be reformed Therefore doth Aquinas himself reason thus Thom. 2.2 Cum quis saith he secundum ordinem juris à judice interrogatur non ipse se prodit sed ab alio proditur dum ei necessitas respondendi imponitur per cum cui obedire tenetur As for tendering the Oath to the party where there is an accuser that is not done upon the crime till the fame be proved or sufficient presumptions circumstances indicia or suspitions or semiplena probatio the oath of one sufficient witness at least to induce the judge to give that oath though penal in some sort to the party This practice he proves consonant to Gods Word to the practice of the primitive Christian and the opinion of the holy Doctors and Fathers of the Church as also consonant to the practice of Geneva and other at least seemingly strictly reformed Churches and to the practice of all Christian Nations and other Nations not Christian guided onely by right reason and the Law of Nature as also that by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that oath the Ecclesiastical Laws and Canons being full and clear in that point Then he shews how the proceeding at Common Law in this Land is the same not onely in some criminal but civil causes also For private debts 'twixt private persons penal to them as in Wagers of Law sometimes for a greater sometimes a lesser debt 'twixt two private parties with the parties oath that is accused and his Compurgators too even as in Purgation Canonical in the Ecclesiastical Courts together with other Purgation or Decisory Oaths
the Foundation 2 H. 5. c. 1. Estate and Government of Hospitals being not of the Kings Foundation c. and to make correction and reformation according to the Laws of holy Church as to them belongeth now by those Laws Enquiry touching crimes not capital is made by the Defendants oath as is notorious and before proved and this cannot but be penal to the parties visited when guilty 22 H. 8. c. 5. Executors and Administrators are to take the oath of the truth of the Inventory yet this may imply Perjury or discovery of a mans own fault 1 Eliz. c. 2. Ordinaries are to enquire of as heretofore hath been used by the Queens Majesties Ecclesiastical Laws about uniformity of Common prayer Ordinaries may give the Oath of Supremacy to a Clerk within his Jurisdiction 5 Eliz c. r. In this Act of Perjury the Laws Ecclesiastical have the powers reserved to proceed as before 5 Eliz. c. 9. which was by oaths That allowance is made by Common Law to Courts Ecclesiastical to enquire and so consequently by such oaths appears by two precedents of Consultation set down in the Register Regist tit Consultation fol. 48. the first alloweth of an Inquisition made by the Dean of Yorks Official for defects in a chancel c. The other besides a consultation conteins a commandment to the Ordinary to take full information Ibid. fol. by way of Inquisition and other means touching the value of Tithes Ibid. fol. 51. b. 6. An Ordinary proceeded against a Parishioner ex ' officio as for a crime for Tithes deteined by him Ibid. fol. 49. a. Ad correctionem animae the Ordinary proceeded against a Lay-man for Usury even at the instance of a party grieved so in several other cases as in the same Register mentioned fol. 43 50 51 54 55 57. Upon the cavils of some busie people against Oaths ministred in Courts Ecclesiastical and Temporal a Constitution Provincial was made against it Let no man Constitut Provinc de haereticis c. nullus saith that constitution presume to dispute c. against Oaths which are made either in Ecclesiastical or Temporal courts in cases accustomed and in usual manner c. By this appeareth the practice of such Oaths in both Courts and Quintilius German in Henry the Eighths time A Treatise touching Constitut Provinc and Legatine c. 23. printed by Tho. Godfrey who wrote against some Provincial Constitutions allowes of such Oaths to be taken Many more instances hereof may be given but it being apparent and notorious that such proceeding Ex officio and at the instance of the party and Purgation in manner as before was constantly practised in the Ecclesiastical Courts according to the Canons constitutions and Laws Ecclesiastical before 25 H. 8. and by the aforesaid Statute of 25 H. 8. such Laws and practices have been confirmed not being contrariant to the Kings prerogative or the Law of the Land And it appears that in such cases according as is practised in the Ecclesiastical Courts according to the Ecclesiastical Laws it is so far from being contrariant that it is most consonant and allowed and commanded by the Temporal Laws of the Land say it appearing by the Acts and Records of Ecclesiastical Courts that such proceedings were so constantly upon oath there needs no more be said for justification thereof but it may safely be concluded that before the making of that late Act the Common Laws and Statutes of this Realm allowed such Oaths to be tendered by Ecclesiastical judges and therefore the oath of the party in some matter of crime that might be damageable and penal to him was both in practice and was allowed also to be practised in Courts Ecclesiastical by the Laws of this Land CHAP. IX That Oaths administred to parties toâ—ching matters damageable criminal and penal to themselves are urged are required by Temporal Courts and by the Laws of the Realm IN the Chancery when the proceeding is moved civiliter and not criminaliter not to any publick punishment but to the private Interest of the party and sometimes lewd practises and misdemeanours criminal be in the Bill set forth yet must the Defendant make particular answer thereto upon his oath So in the Court of Requests in the Marches of Wales the court of the Council there and in the North parts so that to the intent of a Defendants being urged by oath somtimes to discover himself in a matter criminal it cometh to as much in these Courts as is challenged for unlawful in Courts Ecclesiastical and the Chancery must needs be the ancientest court of this Realm because from thence all original Writs and commissions do come whereupon the other courts do ground all their proceedings therefore probably as in sundry other points of proceeding there they drew the exacting of the Defendants answer upon oath from the Civil Law For that court of Chancery being here in time and nature the first after the Roman yoke before the coming in of the Saxons was shaked off here it could not take light from other courts of the common Law but from some other that was before both it and them The Romans under whom we were then gave us these Laws most probably so they used as their Histories testifie to most Provinces they subdued Many of the same Laws were taken up and retained by the Saxons especially untill the coming in of the Norman Conqueror who established the customs of Normandy Amongst others they retained till then that Law was one That all brethren should participate alike their fathers Inheritance We read of Trebatius an ancient civil Lawyer Cicer famil ep often mentioned in the Pandects who lived in Julius Caesars time before our Saviours birth many years did remain at Samarobrina in this Isle of Britain and afterwards that famous Lawyer Forcatulus AEmilius Paulus Papinianus did professe the Law and kept his Tribunal seat at the city of York For the court of Star-chamber and High-commission I mention not the proceedings there because those courts are taken away though as before perhaps the want of them especially if in some things regulated will by many every day be more thought of the proceedings there are in fresh memory to have been in like manner upon oaths in criminal causes In all the courts of Record at Westminster do not the Judges by corporal oath examine any person whom they have cause in discretion to suspect to have dealt falsly about the return of any Writ entry of rule or such like matter not being capital 13 E. 1. stat Winton Men are to be assessed and sworn to have such assessed Armour in their houses (a) 17 E 2. Prerog Reg. c. 4. The Kings Widows sworn not to marry without the Kings License (b) 25 E. 3. de serv c. 2 7. Labourers are to take an oath to do the Labours appointed c. and if they refuse they are to be put into the Stocks
(c) 27 H. 4. c. 17. Another Statute much to that purpose (d) 8 H 6.7 The Sheriff may upon oath examine the choosers of Shire-knights for Parliament (e) 27 E. 3. stat staple Those that ship over Wools may be put to their oath by the Mayor c. and several more as 11 H. 7.33 51 H. 3.27 E. 3.6 23. Eliz. 6. c. all which oaths though necessary and equal may bring great damage to the party Other Statutes there are that may tend to make the party discover even matters criminal or penal to himself The Statute of Inquisition upon Coroners Stat. de Exon. de inquisition super coronator 14. Ed. 1. the Enquirers shall make all the Bayliffs swear That they shall well and faithfully do that which they have in charge by the King and his Council and that they shall conceal nothing of it This is general and may be penal to the Bayliff Mayors and Bayliffs in every Port where Merchants and Ships be shall take an oath of Merchants and Masters of Ships that they shall do no fraud against that Ordinance touching Money E. 3. stat de moneâ—a c. 9. This may be penal too and to discover their own guilt The Statute 19 H. 7. c. 14. gives authority to divers great persons to examine Defendants informed against for certain offences and breach of statutes as well by oaths as otherwise by their discretion and to adjudge c. In several other Statutes where it is said to examine is meant upon oath otherwise it could not be so understood of the Witnesses as 8 E. 4.2 11 H. 7.23 19. H. 7.14 3. H. 7.1 21. H. 8.10 5. Eliz. 9. Vintners put to their oaths 24 H. 8.6 whether they keep their wine to sell by retail or in grosse Concealers of Bankrupts goods to be examined upon oath 34 H. 8.4 c. The Lord Chancellor ex officio to give the Oath of Supremacy to whom he thinks fit this may be penal to the refuser 5 Eliz. 1. Such as be supposed to be parties and privy to the fraud used in conveyances by Fugitives over the Seas 13 Eliz. 3. may be examined upon their corporal oaths c. the refusers to be fined In which as in the other Statutes it is evident that it may many wayes happen that such oaths may tend to the urging them to discover matters criminal and penal to themselves that are appointed to take them and the four last alledged concern oaths given where neither bill nor yet Information is preferred against the parties examined and therefore to be tendered more then ex mero officio In matters that induce damage to him that sweareth there be sundry examples at the common Law T. 25 E. 3. fol. 44. one or two may suffice A woman covert Baron being to acknowledge a Fine if it be doubted whether she be 21. years of age she shall be examined upon her oath In an Action of Detinue of goods P. 3 H. 6.38 the Plaintiff was examined where they were delivered A Plaintiff examined where an Obligation H. 3 H. 6.30 which he pleaded was made Sheriffs Stewards of Liberties Reeves Bedel of Strayes and Waifes Rent-gatherers c. or other Accomptants to the Prince or other great Lord are usually urged to their Accompts upon their oaths this may be penal and ignominious to them In an Appeal of murther as before the defender must before battail swear his innocency Stamsord Pleas of Crown l. 3. c 14. M. 34 E. 3. fol. 3. One sworn of a Jury and departing from his fellows and returning was by the Judges ex officio examined upon his oath whether he had talked with the Defendant A Tenant of Land was examined by the Judges T. 7 H. 4. fol. 19. whether he confessed the Action of he Demandant by covin which was found A woman that brought an Appeal for the death of her husband P. 9 H. 5.1 but supposed by another name then she had indeed was hereupon examined A suspected Jury to have received a letter from the Defenfendant H. 35 H 6. Firz H. Abridg tit exâ—minat num 17. were all examined upon their oaths * M. 35 H. 6.11 A Sheriff examined supposed to have made a false return †Brooke tit Ley. gager num 77. They have a custom in London allowed good by the Common Law to cause the Plaintiff to swear to the truth of his Declaration which if he do then the Defendant is condemned if the Plaintiff refuse he is barred The like Decisory Oath at Common Law which is peremptory to the Plaintiff 19 H. 6.43 and so is the Wager of Law ex parte defendentis In an Action of Detinue for a Chest sealed with certain Gold 44 E. 3.41 Silver c. the Defendant tender'd his Law that is his Oath Quod non detinet and the opinion of the Court was he should have it Dr. Cosens chap. 3. in the third part of his Apology writes thus The grand Jury as I take it have their oath given to enquire and present their own their fellows and others faults And Part 3. chap. 14. he sayes that at Assizes and Sessions Grand Juries are urged by oath to enquire and present Treasons Murthers and other Felonies breach of the Peace violation of sundry Laws and Statutes Common Nusances c. Now if one of the Grand Jury being to be sworn would deny to take the Oath except he might have some certain offences usually given in charge left out and foreprised severally out of his Oath left otherwise he should thereby be driven to accuse himself Or if one supposed most able to give evidence to the Coroners Inquest upon a murther committed should desire to be spared from telling his istmost knowledge thereof upon his oath lest thereby he be driven to accuse himself would the Judges spare them and not rather repute them to be guilty of these crimes for which they refuse to take oath and discover their knowledge And why not then other men should not upon crimes nothing so penal who refuse to take the oath to answer them be judged by any man to do it upon good ground and conscience If a Tithingman refuse to make Presentment 10 H. 6.7 the Steward of the court may amerce him Chief Constables and Bayliffs were to give evidences upon their oaths 19 H. 7. c. 14. touching unlawful Retainers within the precinct of their Offices and upon concealment were to be punished And many more such Therefore hereupon may it not be concluded thus That whatsoever the Ecclesiastical Laws do allow and require being not contrary nor repugnant to the Prerogative Royal nor to the Laws Statutes and customs of this Realm that may be lawfully practised by Judges Ecclesiastical But this oath is such by reason that sundry Temporal courts by Law hold the like course and do not prohibite it in Courts Ecclesiastical so
THE Law of Laws OR THE EXCELLENCY OF THE CIVIL LAW Above all Humane Laws whatsoever By Sir ROBERT WISEMAN Knight Doctor of the Civil Laws Together with a Discourse concerning the Oath Ex Officio and Canonical Purgation LONDON Printed for R. Royston Bookseller to the King 's most Excellent Majesty 1664. The Epistle to the Reader Reader IF this Book were set forth in any other Language for Forreigners to read I were unavoidably driven to give them an account why I had put my self upon so superfluous and so unnecessary an undertaking as to extoll and commend that whose worth and merit is owned by all the World and which every where shines so brightly that it cannot be obscured by any either Tongue or Pen. For it is very well known to them that the Civil Law is the issue and product of that great and mighty State the Roman Empire that led so many Nations and people captive by their Wisdome as much as by their Valour that was once the School of all Moral Honesty and goodness and the stage whereon the whole variety of humane affairs was represented Neither need I tell them that what through the prosperous success of that State for which it was ordained and what through the natural Equity that is to be read all along in it and its being fitted for the general affairs of Europe the Laws of most of the Europaean Nations who indeed all of them anciently were subject to the Roman Government are but as copies drawn from that original borrowing that lustre of goodness they have from it and where their particular Laws faile thither their Judicatories resort to be supplied They cannot be ignorant That though every particular Nation has some few Laws of their own proper for their occasions government and people yet no where beyond the Seas is there any profession or science of Law but this nor any Law accounted the Law of Nations but the Civil Law onely That time practise argument and applying it to the several affairs of so many Nations where it has been used has made it so perfect and so sufficient a body to decide all cases by that are between party and party and do not concern the publick government that they stand in need of very few Laws of their own making and without it no Laws they can make would ever be able to serve their turn To those therefore that make such continual use of this Law in their Courts and who suffer none to sit as Judges nor plead at their Bars but such as have been brought up in that faculty and who strive to imploy those onely in all transactions between themselves and other Nations to them I say to praise and applaud this Law that is dignified by them so many several wayes is so little needful that it were almost impertinent But to make known to the people of this Nation to whom it is rendred now so contemptible how excellent it is in it self how rational what a general approbation it has had with other Nations and how very useful it may be to the publick welfare of this Nation divers wayes it is a work so seasonable and necessary that it may be done without either Apology Preface or reason premised and is no more then the present state of things calls for For when it is considered what an account it has been in amongst us for many hundred years together how many causes Civil Ecclesiastical Maritime and Military it dealt in how the jurisdiction thereof ran through the whole Nation how very little it was beneath the profession of the Common-Law it self how many professours and practisers it maintained and how much it did enrich them what a number of students it encouraged what coercive power it was intrusted withall and the many Courts the employment thereof lay in And when we see that now the causes thereof are cantonized and like a spoyl divided some carried to the Courts of Common-Law some to the Court of Equity others sent into the Countrey some left without any rule or regulation at all and nothing left entire to the Civil Law and when the solid reason of that Law is crowded out by vulgar reason the professours thereof scattered the study thereof discontinued the very Law-books for want of use here all transported beyond sea to other Nations and all coercion taken away It is so much worth the enquiring what the ground of this great change should be that to be silent thereat were great stupidity That the fall of the Ecclesiastical jurisdiction might be a reason to suspend the exercise of that profession in some causes for a time till it were again setled I admit But why it should not under this present form of Government if authority think fit be restored againâ— as to a civil regulation of those very matters under the Civil Magistrate no satisfactory reason can be rendred I am sure it can neither be rational nor convenient that they should be carried from the Civil Law which was the known established and practised Law in those matters unto the conizance of those that have neither Law nor rule nor skill to try them especially when the so doing does inevitably draw after it the certain ruine of that whole profession It is therefore very well worthy the most serious consideration of those that sit at the Helme That since there must be a triall of those matters still and again attending thereupon to one or other which is the Game every body hunts after Whether the Publick is more concerned that the profit of such conisances should flow into the purses of others no way apt or skilful then go to the maintaining and keeping up of such a learned profession which this Nation cannot be without And certainly whensoever we see that profession laid aside which for the publick good I trust I never shall we shall find this Common-wealth of ours made very much inferiour and unequal to other Nations with whom as it is an Island and now become an active one it has and must have many wayes to do In other things as in strength riches and alliances we contend for advantage and superiority with them why should we then suffer them to over-match us in wit dexterity skill knowledge wisdome policy reason or judgment which that learning above all other and experience together gives them The dealings that we may have with them as they are not a few but innumerable even as many as there are things in the World to deal in So some of them are of highest moment and consequence also As Right to Kingdomes or Provinces by Donation last Will Succession or by Marriage community or property of the Sea and the rights of Fishing and trading there freedome from Customes and other immunities granted to forreign Merchants Precedency amongst the Embassadours of Princes and Republicks Promises of protection and aide against enemies Entertainment and harbouring of Traytors or Rebels Interpretation of publick Leagues or
established for a Laws Fourthly A Law that may be mischievous to divers particular persons though otherwise very innocent must not therefore be presently condemned as unreasonable so that it be convenient and profitable for the publick welfare Jura non in singulas personas sed generaliter constituuntur m L. 8. Dig de legib Lawes are ordained for the generalities sake not to provide for each individual person whose particular interest must suffer rather than the whole society be brought into jeopardy n Livius l. 4. de bello Macedon l. 11. dig de just jur A particular mischief is better than a general inconvenience Nulla lex satis commoda est omnibus id tantùm quaeritur an pluribus in summa an prosic No Law is every way beneficial unto all that onely is enquired into whether it be generally profitable and to the most Fifthly A Nationall Law that is generally and in most of its dictates and principles very just and equitable and universally so acknowledg'd by the wisest and most judicious men and Nations is not to be censured for some few particular constitutions which may seem hard and rigorous or whereof the Justice Equity or Reason is not so evident for this enterprise of making Lawes is the weightiest thing which any man can take upon him And where a multitude of Laws comes to be made by men the best of whom are subject unto errors and for cases of infinite number wonderful variety some few deviations if any be may be excused It may well suffice that the Body is fair and the Specks but few Sixthly we can by no meanes allow of their way of judging who are ready to measure the goodnesse of Lawes by the corrupt and evill practises of those that are instrumental to administer them Neither are Lawes to be judged such as their execution is Can a fountaine be judged the worse because it is so unhappy as to run through a foule and slimy channell or a chast Matron traduced because violence has polluted her so neither can the Law be justly charged with the exorbitancies of men which it self condemns and was purposely made to revenge and punish them and would do so too if violence power and fraud did not obstruct its course Seventhly we can as little esteem those competent and fitting Judges of a Law that are so forward to asperse and make it infamous because by ancient institution it was once ministerial and attended upon a power and function which they ever disesteemed and have lately seen abolished Upon this ground and no other that can be imagined have divers uttered their bitter and contumelious invectives against the Roman Civil Law having been helpfull in the exercise of the Ecclesiastical jurisdiction of this Nation which because they see eradicated and quite taken away they judge the other quite uselesse and therefore in their conceit ought not to be kept or continued here any longer In which argument were there any strength of Reason it might be more strongly enforc'd against the Commmon Law it selfe the intent and scope whereof being to set up and maintain an absolute successive Monarchy in this Nation and to keep the people in a subjection under it that Government being now thrown down it may be inferr'd that the Law also which did found and support it should never be made use of more and that a Law of greater liberty and freedome should be set up in place of it and so in conclusion the reason of these disputants would allow us no Law at all But these must not be ignorant that the Civil Law was originally made least of all for Ecclesiasticall matters nor yet for so few cases as in this Nation it was permitted to deal in but it was first ordained to guide the mightiest and vastest Empire that the world hath yet known and under it the same grew and prospered to the terror of its enemies the joy and comfort of its friends and confederates and to the astonishment of the whole Earth Indeed before the first foundations of this Law were laid the Romans did not disdaine to fetch their Lawes from Athens that City which was once the nurse of Reason and flourisht in eloquence and brave atchievements more then all Greece whence the learned Fathers of the Church suckt literature Basil his eloquence Nazianzen his strength and others their flowing Oratory that Athens which who had not seen is by Lysippus accounted a very block But since this beautifull fabrick of the Civil Law was reared up and came to the perfection we now see it in it did not onely order and compose all matters of publick Justice and of private Right in that State but is since through the singular treasures of Wisdome and purest Reason laid up there propagated also to other Nations who constantly use it in their Courts in conjunction with their own Lawes And in conformity to other Nations did it come to passe that the use of it was admitted and brought into the Ecclesiasticall and other Courts of this Nation where naturall Equity and the best Reason came to be dispensed in the doing of right and justice and especially for commerce with Nations abroad whereunto that knowledge is most requisite Therefore to say that the Civil Law is uselesse because the Ecclesiasticall power is thrown out is as much as if we said we have no further need of naturall Equity or right Reason nor need to treat with forreign Nations any longer nor now be so wise as we have been and as other Nations are Lastly though the wisest of a people have upon mature deliberation agreed upon a Law and the Legislative power of the Nation has enacted it yet that does not presently conclude the same to be rationall for since the people of other Nations are partakers of the same Nature Reason Learning and Experience with them except it can appear rationall to others also that are taught and guided by the same principles it is not to be deemed rationall And from this single ground onely was it that the Roman Civil Law came to be so universally embraced by other Nations and to passe so generally for a most rationall and just Law because more naturall and common principles of Reason Justice and Equity were found therein then in any other Law of Mans ordaining and because we meet with that reason there that is universall and common to all mankind And if there be any certainty of Reason in matters of humane discourse as we must admit there is else we shall put out one of the chiefest lights that God has given to the world it is to be discovered no where sooner then from that which not onely one whole Nation has agrred upon and established for a Law amongst themselves but which other Nations besides them have allowed for true reason and practised the same also within their severall territories for many hundreds of years together for the most certain token of
evident reason is if the generall perswasion of all men doe so account it and when the judgements of all men generally or for the most part run one and the same way Non potest error contingere ubi omnes idem opinantur quic quid in omnibus individuis unius speciei communiter inest id causam communem habeat oportet quae est eorum individuorum species natura No error is to be feared in such matters where all men are of the same opinion and what is ingrafted in every individuall of the same species must necessarily proceed from one common cause which is nothing but their very nature The generall and perpetuall voice of Men is as the sentence of God himself for that which all men have at all times learned Nature her selfe must needs have taught and God being the Author of Nature her voice is but his instrument By her from him we receive whatsoever in such sort we learne When therefore we say that the Law of a Nation ought to be conformable to Reason we mean and intend such Reason as other Nations and Men doe generally by the instinct of Nature the meanes of good Literature and their insight in Civil affaires understand and agree to be reason in such matters Non enim licet naturale universaleque hominum judicium falsum vanumque existimare It is not fitting to question that which is generally allowed by all men And that Law that approches and comes nearest to such common and universall reason is the truest and perfectest Law of all other and makes the people most happy and quiet that live under it Howbeit since this is a blessing that every Nation does not enjoy froward perverse men must not take an occasion from hence to despise and quarrel with their own Laws upon pretence that they are irrationall Cognitio de bono malo non pertinet ad singulos omne judicium in civitate est illius qui gladium belli gladium justitiae gerit Regulae boni mali justi injusti honesti inhonesti sunt leges civiles ideoque quod Legislator praeceperit id pro bono quod vetuerit id pro malo habendum est To judge what is good and what is evill in a common society belongs not to any that are under rule but to him or them solely in whom the Supreme Power resteth The measures of good and evill just and unjust honest and dishonest are singly the Lawes of every State Therefore what the Law-giver does prescribe with subjects must passe for good and what heforbids they must look upon as evill till he thinks fitting to order and declare otherwise Insomuch as neither the Judges nor Magistrates themselves can dispute or Judge thereof In temporal bus legibus quanquam de his homines judicent cùm â—as instituunt tamen cùm fuerint institutae firmatae non licebit judici de ipsi judicare sed secundum ipsas sayes S. Augustine as he is cited by the Canon Law a Cap. 3. Dist 4. In temporall Lawes though they may be debated by any man whilest they are in making yet when they are once agreed on and fully passed the Judge shall judge by them but of them he ought not to judge In pressing then that a Law ought to be agreeable to right reason the argument is directed to the Law-giver not to the Subject and the scope of it is to shew rather what a Law ought to be then to quarrell with any particular Law because it is not so rationall as it should be and as other Lawes are But withall it professedly aymes to discover the strange weaknesse of those that when other Nations hold fast the Roman Civil Law as being the summe and substance of all humane reason they are willing to forgo it quite when they have had the conjunction and assistance thereof so long in this Nation and may with so much ease and advantage keep it still To whom I shall give no other caution then what Vlpian one of the grave sages of the Civil Law gives b L. 2. Dig. de constit princ In rebus novis constituendis evidens esse utilitaes debet ut recedatur ab eo jure quod diu aequum visum est Amongst other alterations saith he that is be it Government or what ever else that comes to be altered in a state yet it ought to be some apparent advantage that should induce a Nation to part with that Law that has by long use been found to be very equall CHAP. IV. That Reason is not so strictly required in the Law that orders the affaires of State as in that that settles the differences that arise between Man and Man IF then we would know when reason ought to manifest it selfe in a Law and when it is not so strictly required but that some deviation may be permitted we must observe a wide difference between the publick affaires of State and those of the Subjects own in their private dealings and controversies with one another for although all the affaires of a Nation both publick and private must be under the provision and rule of the Law yet is it not necessary that they should both be regulated in one and the same manner nor by one and the same reason for there is a Reason of State as well as a Reason of Nature In the Laws for publick matters because they respect the welfare and preservation of the whole society meerly and so are not to be tyed to the same rules every where a strict adherence to naturall Equity and common Reason is not required Safety and convenience is Reason enough to justifie them so they encourage Vertue punish Vice maintain Trade and Industry and uphold Religion Yet it is the happiest when there is the least aberration from common Equity and known Reason even in those things wherein the whole Common wealth is principally concerned But it is to be considered that there are such multitudes of people such difference of degrees qualities and conditions and such perversity of Willâ— Humours and Affections in every Common-wealth that no humane Wit is able by sweet equitable wayes to reduce them to that perfect temperature and harmony which is requisite for the conservation of civil unity This may partly be judged by the government of a Family be it great or little which is many times turn'd upside down and dissolved by the perverse humour of some one or two not corrigible by any wholsome Counsel or moderate Chastisement of the head of it What marvell is it then if in whole Kingdomes and Common-wealths amongst so many thousands of different persons and of different humours there are many so exorbitant and turbulent that no Wit nor power of Man can be able fairely to tame or temper them The Lawes therefore must be fitted to all such publick accidents providing sharp remedies for Diseases that are acute and desperate neither must they tender the private
it should not be admitted to teach us true equity and sound reason their restraining Edicts never have so far prevailed so totally to suppress it from the time of Lotharius the second the first restorer and reestablisher of it to this present which is now full 500 years Plurimùm distat lex à jure sayes the same Bodine Jus enim sine jussu ad id quod aequum bonumque est lex autem aâ— imperantis majestatem pertinet There is much difference betwixt Right and Law for Right without any command insinuating it self into the soul of a just man recommendeth to that which is good and equal but Law importeth a command of some Sovereigne which may force and hurry the will to such an action which in equity or right reason may not be good or laudable As a Law to bind by its own proper power and vertue or by any authority of those that made it the Imperial Law is not admitted in any Nation Yet no Christian Nation with all the express decrees that that they have at any time made against it has been able to exclude it as it containes veram naturalem rationem optimum inter omnes leges humanas exemplum aequitatis normam authoritatem prudentum veram justitiae rationem artem scientiam juris ut bonos mores complectitur they all admit it as it does propound and hold forth true natural reason and as it is the most imitable pattern amongst all the Laws of men the rule of equity the voice of Sage men the true method of justice the art and knowledg of doing right and as it comprehends instructions for a moral life For thus to shut the door against it were to renounce reason equity justice and to defie all moral goodness Thus much may very well suffice to shew how the Roman Civil Law has had the singular honour and prerogative which no other Law has had to be rescued from that universal deluge of abolition which hath swept away all other ancient Laws besides it and not onely to oâ—t-live Rome it self but to out-stand many dangerous assaults and casualties and divers sharpâ— penal Edicts that have been made against it and to continue to this very time a large and accomplished body This surely next to the providence of God who hath so disposed it must needs be ascribed and the cause must needs be conceived to be some especial excellency and rare wisdome that is in the Law it selfe For else why has not other Laws continued as long as that has done CHAP. IV. That Forreigne Nations in doing of Right between Man and Man do mainly practise and make use of the Rules and dictates of the Civil Law THat the Roman Civil Law framed so many hundred years ago and devised for the use of one Nation onely is still extant and in being at this day the state it self being quite extinct possibly it may not seem commendation and praise sufficient except the use practise and observation of it up and down divers great Nations of the World be also shewed The next thing therefore that we have to say in further praise thereof is that the greatest and best ordered Nations though they manage their publick occasions and affaires of State by rules and directions of their own ordaining having an eye to the nature of their people way of government and present exigencies onely yet in the dispensation of private justice and in pacifying the debates and differences that do arise between their subjects where meer right and equity onely is considerable they use and practise the rules and principles of the Civil Law chiefly Peculiar Statutes Ordinances Customes and municipal Laws every State has of its own making which in the regulation of its proper affairs it does prefer before any other Laws or constitutions whatsoever though in reason and convenience they may seem much better Yet humane occurences are so many in number and in circumstances so greatly differing one from the other that no Nation is perfectly supplied with Laws of their own to answer them but that there is still need of some subsidiary Law more universal and comprehensive then its own And from this ground is it that most States have entertained the Imperial Law to supply and assist where their own is defective making their study and science of Law to consist in that but the use and exercise thereof to be restrained and bounded by their own proper Laws which every Nation requires to have first known and chiefly to be observed Wherefore if you travel into their States and shall ascend up into their Courts and places of Judicature both Judges and Advocates will be every where found to be all Civilians and Graduates in that faculty the proceedings in causes there to be most after the form and manner of the Civil Law And when any case comes to be resolved by final sentence if there be any proper or peculiar Law of their own Countrey to determine it judgment passes as that special Law directeth but if that be wanting as commonly it is presently recourse is had to the Civil Law and by that is it both pleaded and judged Which because it shews the transcendent excellency of this Law being incident to no other Law besides and being not throughly enquired into may seem incredible to many men it is therefore a point worthy of a strict examination and fit to be fully cleared and perfectly understood For peradventure it may not pass without a wonder that a Prince or Common-wealth should not be able to manage their rule and government by Laws of their own devising or that any differences should arise amongst their people which they knew not how to decide of themselves but must consult with the oracles of other Nations It eclipses some may think the Majesty of a State to have rules prescrib'd to it by others And since the time that a divivision of Kingdomes was first made and each had their bounds set them no Potentate no not the Emperour himself has pretended to a power to give Law to any but to such as have been his subjects by birth habitation or conquest Neither can Lawes be made to regulate the whole World or to bind all people sayes Suarez m Lib. 3. de legib ca. 4. nu 7. ca. 7. nu 9. Besides quae leges Romanis congruebant non omnibus jam congruunt mutata est ratio vivendi status rerum mutatus sayes Ludovicus Vives n De caus corrupt art lib. 7. The Laws that were proper for the Romans suit not so well with others the manner of living is not now as it then was the state of affairs is clean changed climates differ and the tempers of people differ too new and strange accidents do frequently arise which will require new constitutions to settle them the form of governing is divers in several times places the Laws therfore cannot possibly be the same Monarchical Laws are of no use to
are embroyled in war and hostility each against other by their unskilful managery Ignorantia judicis plerunque est calamit as innocentis fayes St Austin y De Civit. Dei lib. 19. ca. 6. the ignorance of the Judge is frequently the woe of those that are innocent And indeed though it be nothing else but reason that does render a man capable and fitting to discuss and pronounce upon such questions yet it is not the vulgar common reason that nature does bestow upon every man but it is that reason which is gotten by art and study of the Law and of the rules principles of justice and which is improved and inlightned by a continual use and a long experience and which in truth is to be found no where but in students practisers and Judges of the Civil Law onely And yet there has been a strong conceit taken up but lately but yet very hotly pursued to have the same take effect by solliciting the state to make a Law to that purpose that a certain number of old experienced Merchants are much fitter and better enabled to sit upon the trial and examination of matters of forreign trade and negociation and of business arising upon or beyond the Sea then any students graduats or practisers in the Civil Law whatsoever supposing that if the Court of Admiralty were turned into a Court of Merchants both subjects and strangers would be better satisfied and trade go on and thrive much better Which project some Merchants have been the more emboldened to set on foot because they once prevailed so far as to get an Act of Parliament to be made in the fourty third year of Queen Elizabeth whereby all controversies that should from thenceforth arise upon any assurances made of any goods merchandizes ships and things adventured are committed to the hearing and trial of so many Judges whereof the Civilians are fewest and the Merchants make the greatest number They would have it conceived that none has understanding or skill enough to judge of the my sterie of their employment but themselves onely and that it is equity and a good conscience in a most summary and a compendious way and not the intricate and long Maeanders of the Law that is the fittest to arbitrate and decide their differences crying out for a quick dispatch that their voyages to Sea may not be obstructed They are jealous withall that the profession of the Law is but a design to enrich a company of men with the vexations and spoiles of others grudging that there should be a distinct profession made of the Law which secures themselves and all they have when every Trade and Handicraft hath the like In which suggestions if there could be imagined to be any either truth or soundness yet since the same may be made by other trades and professions as well as by the Merchants it would argue that there were by the State too great care had of them and too little had of others to assign the Merchants onely Judges out of their own order and not to grant the same priviledg to other Tradesmen also And yet to make a peculiar provision general and to erect so many Tribunals as there are Trades and callings was never as yet accustomed or put in practise by any Nation The Romans would not admit any Barterers or Traffiquers into the Camp or to any place of honour in the Civil Government z L. 12. Co. De Cohortat 1. vinc Co. Negociat ne Militent Paulus a L. 44. Dig. De aedilit edict gives the reason Id genus hominum saith he ad lucrum potius vel turpiter faciendum pronius est That sort of men are disposed to gain and unrighteous dealing Saint Chrysostome sayes no less as Gratian cites him ca. ejiciens Distinct 88. Mercator sine mendacio perjurio esse non potest No Merchant can subsist without lying and perjury And Demosthenes b Orat pro Phormione makes it a miracle si idem mercator industrius videatur probus if that man that is sedulous and intent upon Merchandizing can be an honest man And therefore the Thebans would not suffer any man to bear any honourable office in their Common-wealth that had not quite given over Merchandizing for the space of ten years c Arist Polit. lib. 3. ca. 3. in fin Surely their fear was that when those kind of men studied and endeavoured nothing else but amassing of wealth and getting of riches the Tribunal if they sate there might become a Mart and justice be exposed to sale Besides it is most frequent and ordinary for a number of Merchants to joyn in copartnership together and to employ one common and joynt stock beyond the Seas and yet few of the copartners known or taken notice of so that it may happen that a Merchant that sits on the judgment seat may be deeply concerned in the case in question and be judge in his own case and yet his interest not seen or discerned Again there is such a spirit of opposition reigns between the Merchant and the Mariner who is as useful and serviceable at sea as the Merchant can possibly pretend to be that if the Merchant should sit to judge the Mariner in time the company of poor Mariners might be so severely dealt with and kept with such short wages by the Merchant at whose pleasure and command he is that he will not care to serve and so navigation may be quite lost Nay further the controversies in the Admiralty are not between our own Merchants onely but many times between our own and other Merchants of forreign Nations Whereby if ours were Judges there would be given into their hands a great advantage to help and gratifie those of their own Countrey and rank and to oppress strangers Moreover what affinity is there between buying and selling which is the onely skill of the Merchant and judging of the nature and right of contracts injuries debts agreements offences and other accidents and emergencies happening upon the Sea or in forreign parts which they so covet to gain unto themselves Which knowledge and faculty is not to be found in the depth of the Ocean nor to be obtained by Travail but is gotten by serious contemplation and a long study and perfected by the practise of a mans whole life I write not this to debase the true worth nor to lessen the repute of Merchants They are a people that enrich the Nation as well as themselves and for the dangers they run through both personal and real they deserve to have the highest immunities conferred on them But let them keep within their own sphear and not aspire to such a function which neither their breeding capacity or parts does enable them unto nor their employment gives them leisure to discharge d Robert Rer. judicat lib. 2. ca. 16. And therefore upon a solemn debate whether Merchants should be joyned to Civilians to try such matters
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
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
plagues wherewith Almighty God may justly punish his people for neglecting this good and wholsome Law Who would think had we not sadly felt their designs that the great Magnifiers of Parliaments for which I discommend them not so they keep within due compass would have been so bitter against those that acted but according to these strict Parliamentary charges CHAP. III. The Heads of the several Chapters in that Apologie of Doctor Cosens Part 1. C. 1. THE particular distribution of causes proved to be of Ecclesiastical cognizance besides Testamentary and Matrimonial With a discourse of C. 2. Bishops Certificates against persons excommunicated being a special point of their voluntary Jurisdiction where there is no party that prosecuteth C. 3. That matters in the former Chapter adjoyned to Testamentary and Matrimonial causes though properly they be not of Testament or Matrimony are of Ecclesiastical cognizance and how far C. 4. General proofs out of Statutes that sundry other causes besides Testamentary and Matrimonial are of Ecclesiastical cognizance C. 5. That Suits for Tithes of Benefices upon voidance or spoliation likewise that Suits for Tithes Oblations Mortuaries and Pensions Procurations c. are of Ecclesiastical Jurisdiction is proved by Statutes especially C. 6. That Suits for right of Tithes belong to the Ecclesiastical Jurisdiction and how far is shewed out of the books and Reports of the Common Law so of places of Burial and Church-yards and of Pensions Mortuaries Oblations c. C. 7. Of right to have a Curate and of Contributions to Reparations and to other things required in Churches C. 8. Proofs in general that sundry crimes and offences are punishable by Ecclesiastical Jurisdiction and namely Idolatry Heresie Perjury or Laesio fidei and how far the last of these is there to be corrected also of disturbance of Divine Service or not frequenting of it and neglect of the Sacraments C. 9. That Simony Usury Defamation or Slander beating of a Clerk Sacrilege Brawling or Fighting in Church or Church-yard Dilapidations or waste of an Ecclesiastical Living and all Incontinency are punishable by Ecclesiastical authority and how far C. 10. Several other matters reckoned in this tenth Chapter as ordeining of real Compositions and disannulling of them suspension ab ingressu Ecclesiae c. Interdiction of a Church Sequestration Excommunication Parish-Clerks fees Goods due to a Church deteined Blasphemy Idolatry Apostasie from Christianity violation and prophanation of the Sabbath Subornation of Perjury Attestation of a womans chastity Drunkenness filthy speech violation of a Sequestration or Induction hindering and disturbance to carry away Tithes enjoyning of Penance corporal contempt of obeying the Decrees of the Ecclesiastical Judge Fees due in Ecclesiastical Courts Curates and Clerks wages Forgery in an Ecclesiastical matter as of Letters Testimonial of Orders of Institution burying of excommunicate persons communicating with excommunicate persons frequenters of Conventicles digging up of Corps buried and generally for any matter Ecclesiastical indefinitely by the Articuli cleri may be cited All these are of Ecclesiastical Jurisdiction and proofs that any Subjeet Lay or other may be cited in any cause Ecclesiastical C. 11. That Lay-men may be cited and urged to take Oaths in other causes then Testamentary and Matrimonial C. 12. The grounds of the opinions to the contrary examined and confuted C. 13. That judgment of Heresie still remaineth at the Common Law in Judges Ecclesiastical and that the Proviso touching Heresie in the Statute 1 Eliz. 1. is onely spoken of Ecclesiastical Commissioners thereby authorized C. 14. That by the Statute Her Majesty may commit authority and they may take and use for Ecclesiastical causes Attachments Imprisonments and Fines Herein he writes also how the Law was at that time C. 15. That an Ecclesiastical person may be deprived of his Benefice without indictment or prosecution of party C. 16. That after forty dayes an excommunicate person may be otherwise punished then upon the Writ De Excommunicato capiendo and that the said Writ may and ought to be awarded upon contempts arising on other causes Ecclesiastical then any of those ten crimes mentioned in the Statute 5 Eliz. 23. C. 17. Of a Prohibition what it is where it lyeth not and where it doth and how it ceaseth by a Consultation and of the Writ of Indicavit C. 18. An Analysis or unfolding of the two special Statutes touching Praemunire with sundry questions and doubts about that matter requiring more grave resolution Then in the second part of his Apology the Doctor sets forth his Proofs together with his Answers to the objections made against the manner of practice of Jurisdiction Ecclesiastical by those that oppugn it C. 1. Of the distinction of Offences and several kinds and ends in punishing them with the necessity of punishments C. 2. Of two sorts of prosecution of crimes and offences viz. by a party and of office the practice of them in Scripture and in the several Courts of this Realm C. 3. Of the sundry kinds of objecting crimes by a party mentioned in the Civil Law as by reason of a mans publick charge and function also by way of Exception Supplication Complaint Delation and Accusation The true signification of the word Accusatio its divers acceptions definition and exposition thereof with some reason of the frequency of Accusation in Courts of the Civil Laws in former times is also declared C. 4. That the prosecution of crimes by way of Accusation is in most places forbidden or grown into disuse The reasons hereof be partly the danger to the Accusers and partly the hatefulness of that course Therein also is disputed whether all Accusation be unlawful and certain points delivered to be observed by all them that will accuse others C. 5. Of the several acceptions of the word Officium the signification of the words Inquisitio Questio crimina ordinaria extraordinaria the reason why enquiry by office came in place of Accusation Of Enquiry in general and special of Enquiry special Ex officio nobili sive mero mixto promoto and of the privileges of proceeding ex mero officio above the other C. 6. Of Denunciation a special means of stirring up the office of the manifold use thereof on the other side the Sea The general acception of that word and of four kinds of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expences and what course of dealing against crimes and offences is holden both in Courts of the Ecclesiastical Commission and in ordinary Courts Ecclesiastical of this Realm C. 7. That the Civil and Canon Laws allow sundry means to ground a special Enquiry of office against a crime besides Accusation and Presentment therein is also conteined an Answer to a supposed Rule and declared how from general they descend to special Enquiry And that besides those two either a fame or clamosa insinuatio or private judicial Denunciation or Canonical Denunciation
from such shifts of answering dangerous questions propounded to them by Heathen Magistrates or from answering untruths to them Tertullian is herein very plentiful especially in his book called Apologeticon A Christian saith he if he be indicted or denounced to the Magistrate be rejoyceth in it if he be accused he propoundeth no defence when he is interrogated he mostwillingly confesseth and when he is condemned he giveth them or God thanks Tertul. in Apol. c. 1. And much more hath Tertullian to this purpose St. Aug. serm 28. de verbo Apost cap. 6. Augustine doth plainly establish and allow of Oaths taken concerning a mans open offences being indeed such also in their own nature If perhaps saith he thine Oath he urged meaning a Decisory oath be exacted of thee by a private person say not I will not swear for it cometh of evil which though doest but yet of his evil that exacteth it of thee insomuch as though hast no other means but thine oath to purge and clear thy self of the matter in handling Aug. bid c. 10. In another place he speaks and allows of oaths taken in way of purgation of one suspected for theft and in another place he sayes and approves of the same practice at Millain Aug. ep 137. this was in a civil cause criminally moved and for theft a crime though not simply capital by the Civil Laws In another place In denouncing others saith he Aug. in qu. Lev. speaking of Denunciation of faults to the Magistrate this moderation is alwayes to be used by us that we relate it unto such which may rather help than hurt him in case the party shall swear falsly either by correcting him or by deprecation to God for him so that he will by confessing his fault apply this remedy unto himself Chrys hom 16. ad pop Antioc St. Chrysostom alloweth of Decisory Oaths or Wagers of Law and testifieth that such necessary oaths were in those times imposed to exact mens confessions and whether they had stollen some certain thing or not This he allowes touching meer crimes in their own nature and that upon the instance of a Plaintiff particularly interested but in his goods and chattels This kind of oath was not onely allowed in the old Church but commanded to be put in use as lawful and consonant unto Gods Word against persons convented and had in suspicion even in one Church which the most and hottest oppugners of this oath do reckon to be best yea and almost the onely Reformation that may rightly be so called For in the Discipline of France concluded of in the national Synod there 1559 1561 1563 1565. it was thus declared The faithful may be constrained by the Consistory to tell the truth so far forth as it derogateth nothing from the authority of the Magistrate They may be constreined The Ecclesiastical Senate or Consistory act 12. say they but there is no compulsion but either Civil which they will not arrogate to themselves as torture or racking imprisoning or fining c. or else by the parties oath which upon pain of Perjury if he once swear or of conviction if he will not doth as it were constrein a man to say truth And that an Oath is meant by the Canon of the French Church we are taught both by the History of Camperell a French Minister at Geneva as also by that of those who danced in Widow Balthazar 's house there Camperell was appointed by the Consistory of Elders there Inter epist Calvin in folio pag. 421 422. to be examined upon his Oath upon certain Interrogatories whereof also two concerned what he had in his very purpose and intention of mind Calvin Farello pag. 64. epist in folio The Dancers because at first they denyed it were put to their corporal oaths to declare the whole truth of that merriment And all dancing there is held as an offence and grievous crime as appears by the Ordinances of Geneva and by the very last frame of Discipline concluded 1571. by the French Churches For Purgation Canonical as it was used in the Ecclesiastical Courts of this Kingdom in a word 't is the same in these Courts in a criminal cause as at Common Law a Wager of Law is in a civil cause differs no more then thus this is touching our Lands or goods that touching our Good name and Credit It is so far from being condemned by good and godly Bishops in ancient times that by whole Councils it hath been prescribed Let a Lay-man saith one Council Concil Tribur canon 21. if need be purge himself by his Oath and let a Priest by the consecration of the holy Sacrament be interrogated And another Council thus Let a Priest if he can purge himself of the crime with seven of his Order and a Deacon with three Ivo lib. 5. ex concil Agath So was it decreed by a third Council If a Priest or Minister be infamed amongst his charge and it cannot be proved before the Bishop by witness let him be suspended untill be perform due satisfaction lest the faithful people be scandalized But as our Elders have taught then is the satisfaction due and orderly when according to the Canons or as the Bishops shall judge fit be joyneth unto him seven Compurgators and swears by the holy Gospel laid afore him that he hath not committed the crime laid unto him When he is thus purged then let him again freely execute his office Ivo ibid. ex concil Herden And in another Council we find Purgation prescribed for theft and also for Adultery Concil Worm and according to the prescriptions of these Canons and many others that might be alledged examples of sundry ancient Bishops in the Church that have themselves made their own Purgation for avoiding and removing scandal and offence Sixtus the third and ancient Bishop of Rome 12 qu. 4. c. Mandastis but upon the accusation of one Bassus did willingly make his Purgation upon his oath in a Council And so did Leo Ivo Carn l. 5. another ancient Bishop of the same See purge himself with twelve Bishops Gregory the Great enjoyned unto * Greg. ep 23. ad Iustin Presb. Leo †Id. ep 8. l. 2. Memius and * Id. ep 8. l. 7. ep 79. Maximus three Bishops to clear and purge themselves of several crimes by their oaths whereof the last was for Simony Innocentius also caused the Bishop of Trent to purge himself likewise of the like crime of Simony And what be the Oaths touching Goods stollen or imbezelled which were left with a man upon trust appointed in Exodus Exod. 22.7 8. and those in Salomons Prayer at the Dedication of the Temple other than oaths of Purgation of a crime 2 Kings 8.31 imposed by the party having an interest Lev. 6.2 Likewise the oaths mentioned in Leviticus concerning goods denyed that are pretended to have been left in deposito
that not being so much as divers courses they cannot be contrariant or repugnant therefore these oaths were lawfully practised in courts Ecclesiastical or thus That which is justice and equity in one court cannot be unjust unequal or cruel in another court that is thereunto no lesse authorized than the first But such be these Oaths as appeareth by the practice of the aforementioned Temporal courts therefore they are lawful and equal also in Ecclesiastical courts CHAP. X. The inconvenience and hurt that probably may follow by the forbidding the ministring of an Oath Ex officio or any other Oath whereby such person to whom the same is tendered or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment Praise of the Civil Laws Civilians first and last and greatest Sufferers Amity 'twixt both Robes His Majesties and the Lord Chancellors favours to Civilians DOctor Cosens hath touched upon some of such inconveniences in general not much in particular sparsìm in that his Apology but not in any one distinct chapter Some of such as I have thought of I shall set down That Evil should be removed is often inculcated in holy Writ and that right and justice should be done in all causes as well criminal as civil publick and private all Laws sacred and prophane command this tending to the well-being even the being of all Kingdome Commonwealths and Governments whatsoever as the contrary to the desolation and destruction thereof and of all commerce and humane society That in respect of the whole Church and Commonwealth punishments are most needful the sacred Writ shews it and gives many examples where for the sins of a few whole Armies and Societies have been punished Josh 7. Achans stealing of the accursed garment c. was a cause of the overthrow of Israel in battel 1 Sam. 4. So for the sin of Eli and his sons many thousands of the Israelites were slain by the Philistines Salomon giving charge to kill Joab sayes 1 Kings 1.2 Smite him that thou mayest take away the bloud which Joab shed causless from me and the house of my Father And for Jonas his disobedience the whole Ship was in danger to have perished Aristot Rhetor. Theodor. c. 14. The Heathen could say Justicia est Reipublicae basis Aristotle could say that punishment is a remedy to be used against faults and Cassiodor Remedium est contra peccatum accclerata correctio For all crimes and offences are but as so many Maladies and distempers in the body of the Commonwealth which if suffered to grow without the curb of Law will quickly like a Canker disperse either to the destruction or eminent danger of both So that the necessity of punishment and forcing justice to be done both in civil and criminal causes by the very ends unto which it is referred clearly appears (a) Aug. in ep Joan. tract 7. Charitas non est sed languor ubi mali mores digna poena non castigantur (b) Idem ep 50. ad Bonifac. c. error dist 83. Error cui non resistitur approbatur (c) Cassiod l. 3. Uac epist 14. Malum cum perseveret augetur (d) C. cum Tanto de consu tudine Tanto sunt graviora peccata quanto diutiùs animam detinent illigatam Tully sayes (e) Cicer. pro Mâ—lone Impunitatis spes magna peccandi illecebra (f) C. sed And. dist 45. Quae est ista misericordia quae bonitas uni parcere omnes in discrimen adducere The very Light of Nature did teach even Heathen men thus (g) F. ad l. Aquil l. Ita vulnerat Interest Reipublicae delicta puniri and (h) H. de fide pur l. 7. sect final Poenas ob maleficia solvi magna ratio suadet Now if upon such weighty reasons it be most needful that Justice be duly administred and crimes punished for in criminal matters the greatest care is to be had though no neglect neither to be in commutative and distributive justice to have that rightly performed it must be granted that all due and good means may be used to attain that end Qui dat finem dat media ad finem (i) F. de injur Peccata nocentium expedit esse nota Now when crimes cease to be secret but are by fame or by such wayes as is aforesaid so far discovered if there be as very often there is not no other way to discover them that so the evil and the scandal may be taken away but by putting the party to his oath thereby to clear himself if further due proof thereof cannot be made or by refusal of the oath to be taken pro confesso then it follows the evil and scandal must still remain and all the sad effects thereof to Church and State may be expected to follow Be the fame of a crime Adultery or the like never so pregnant that Town and countrey even the Kingdom ring of it though an Adulterer and Adulteresse have cohabited together a long time yet if they were not taken or seen in flagranti crimine or seen in bed together which is a violent presumption equivalent to a proof and the parties deny the fact some make it disputable whether or no any manner of punishment the fact being neither proved nor confessed can be laid upon the 〈◊〉 for this great scandal to the Church Some hold that by the words of this late Act that an innocent party upon whom a fame is unjustly raised and the beginning of it cannot be found as often hath happened yet though he offer to purge himself the Ecclesiastical Judge is not to tender or administer the oath to him though this seems otherwise because the oath is forbidden but onely in such cases whereby the person to whom the same is tendered or administred may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment But in this case of voluntary offer to take the oath that reason of censure or punishment ceaseth Volenti non fit injuria neque dolus Reg. juris Such course by way of oath to find out the sin being forbidden how great an encouragement it may prove to commit such sins is obvious to the easiest judgment It was extreme to make Adultery punishable by death though that extreme be to be avoided the contrary too must be shunned If it be lawful at common Law as in a Wager at Law and many other cases as before touched to tender and administer such oaths and in such causes as need it not so much as these causes ordinarily do wherein before that late Act it was administred in Ecclesiastical courts then why not in Ecclesiastical courts Except it be said that the fame course shall be
taken to forbid it also at common Law which I suppose is not intended since Jury men as Dr. Cosens as before in that his Apology affirms had an oath given them to present their own and their fellows faults Now such in Ecclesiastical proceedings The inequality of the punishment as to the difference of Sex Indeed the permission of punishment as to one Sex the Man and the punishment to the weaker Sex the Woman who therefore deserves more commiseration that inequality I say cannot at best but seem strange For the man will alwayes probably except either by Gods grace he will glorifie him by confessing his fault or else as before be taken in flagranti crimine or with such violent presumption as before escape punishment though never so guilty It is peccatum concatenatum there must be two to act it In that sin the man without the woman or the woman without the man signifie no more then the letter q without an u following it to make it into a syllable As for the man his crime is transiens leaves no vestigia behind it to discover him not so oftentimes in the woman the infallible indiciū of her fault her crimen manens appearing to every eye though she is no more guilty thereof then the man whom if she rightly name or accuse yet that works nothing against him except to keep the Bastard child as the reputed father thereof wherein not a few light women probably name not the right father so her single testimony serves to punish either the right to wrong father but not to take away the scandal or evil caused by the man that offended Our English Nation hath been accounted very friendly and favourable to the weaker Sex and very many are the privileges and honoraries we give them more then in other Nations for which in the opinion of generous minds we are accounted more honourable then others insomuch as some have said If there were a bridge 'twixt Dover and Callis all the women in the Continent would come into our Island But by this we may seem to hazard that honour In Simony Usury and many other crimes of Ecclesiastical cognisance be the fame circumstances suspicions and all other inducements never so strong yet this oath being not to be administred the offender scapes neither the evil nor scandal is removed Bishops by the Statute 1 Eliz. 1. are to give the Oaths of Allegeance and Supremacy ex offieio to others or whether it be ex officio or ad instantiam partis the matter is all one 't is forbidden to give it to any person whereby he may be charged or compelled to confess or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment The refusal of this oath is penal and perhaps the person was so accused to the Bishop or there was a common fame thereof or other sufficient inducement to enquire thereof if the party refuse to take this oath thus tendered to him then is he by the Law lyable to censure and punishment for it and I conceive it is not thought fit that such a person be he a Recusant of what kind soever should plead this Statute that this Oath should not be tendered to them By the Law all Bishops and Ecclesiastical Judges when they give Institution into Benefices or give license to preach teach school serve Cures and in other cases are to give to the parties the Oath of Allegeance and supremacy should these parties refuse to take these oaths it were penal to them When the Bishops make their Chancellors Commissaries Advocates Registers Proctors or the Deans and Chapters their Commissaries Officials or Auditores causarum or the Archdeacons their Officials or any other Ecclesiastical Officers whatsoever the same oaths are to be given them should these parties refuse to take these oaths it were penal to them So a greater part of the course of proceeding in Ecclesiastical Courts is taken away then perhaps many think of So in the Oath of Calumny and of Malice to be tendered in the proceedings in ecclesiastical Courts if the party refuse to take them 't is penal to him And in many other cases easie to be enumerated but this may suffice The guiltless and innocent have no benefit by taking away this oath especially that of Purgation nay admitting that which as above some affirm That though they offer to take the oath of Purgation the Ecclesiastical Judge is not to minister it in that case they are endamaged by it and cannot make their innocency appear in such a way and means as the Law did afford and to be restored to all intents and purposes to their good name and fame of which they were in a great part though unjustly bereaved and might have a good Action against any that after such Purgation defamed them The guilty hereby escapes punishment which he may in some sort lucri loco reponere if it may not be said of him as Virgil of the stinging Bee animam in vulnere ponit Reg. juris The rule of Law is Nemo ex delicto consequitur beneficium The great Hypocrisie of those Innovators and Fanaticks in Queen Elizabeths King James's and in the late blessed King and martyrs reign King Charles the First to go no further that then pressed the taking away of that Oath and some of them we have seen go much further of late who would be thought to be and so hold it forth that they are the greatest Zelots to have those sins punished that by that means would escape it yet cry like the Lapwing furthest from their nest they would not have the means left to find them out that so they might be punished and other use for their ends which we have sadly felt they made of it as is touched above Herein they somewhat resemble Julian the Apostate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 He would seem to be a hater of a long incompt Beard and entitles that Tract of his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 An hater of beards and yet he sayes there of himself 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Longam istam barbam addidi c. ideo discurrentes in ea pediculos perfero tanquam feras aliquas in sylva Many other inconveniences and hurts that too probably may be feared to arise from the prohibition of these oaths in such cases as before might upon further consideration be enumerated and though in the last place yet even that too of adding further discouragement to the professors of the Civil and Ecclesiastical Laws who have not had a few for a long time together may perhaps deserve to be thought upon It is too visible that there are not a few that would not have them enjoy so much of practice and power as that without which the State can scarce spare them that is in maritime causes touching Traffick and commerce with Forreigners a point eminently
our Places our Livelyhoods were unjustly taken from us onely for our Loyalty whilest others that did it gloried in their shame took our bread out of our mouths and did eat whilest we fasted and well nigh starved and yet such is the unsatiablenesse and unreasonablenesse of some of our causelesse persecutors that they could well be content we should still continue in the same oppressed and miserable condition And when His Majesty was happily restored for which all thanks praise and glory be ever rendred to the God of miracles and mercy the Civilians as they were as is before touched the first and earliest sufferers so were the last not a small time after the most reverend Bishops and especially after the rest of the Loyal Clergy were restored that were re-admitted to their places and Offices and when that was done still for a considerable time they were but precarious and of little use or value as before till the doubt touching coercive power was by Parliament taken away which was not till the later end of Summer 1661. and then with the Proviso against the Oath Ex officio and Purgation which not a little diminishes these Offices besides upon reasons known the forbearance of the full execution of such Offices as yet so far as by Law they might execute them is considerable Some Civilians who in contemplation of their natural duty and of their Oaths of Allegeance and Supremacy served His majesty in his wars against his then rebellious Subjects thereby lost all their Fortunes both real and personal that their enemies could find and certainly never were more sedulous and rigid scrutators or more rapacious Harpies that would not let scarce any thing passe their clutches Non fuit Autolyci tam piceata manus And such suffering Civilians both so in their Livelyhoods their quotidianum and their persons and liberties every often humbly hoped when a time of re-settlement should come that they should have been looked upon as well as others of the same profession that sate still underwent none of these dangers or hazards nor suffered perhaps any thing or but little in their Estates or otherwise especially in comparison with the others or as well as others that had some competency by reason of practice under the usurped Powers as to take and execute Offices under them of great benefit and I had almost said that way if not otherwise also immediately acted against His Majesty and his Authority contrary to their natural duty and Oaths of Allegeance and Supremacy To plead before the usurping Powers even after the end of the war it was not at least for a long time permitted to those Civilians of the Kings party especially those that had served him in his wars here For my own part though I could never satisfie my Conscience so far as to plead before any of the usurped powers not so far to acknowledge their power though some years before His Majesties happy restauration I was both here and in Ireland invited and desired to do it yet I would not do it nor ever did that way or any other give any acknowledgment of their power or touch any of their Pitch more then by a forced acquiescence and sitting quiet and still when I was constrained so to do Yet I say I am far from censuring any of these worthy and learned persons of either Robe that did either agere or defendere before that usurping power by way of pleading I would not be mis-understood as to be thought so much as to think amisse of the noble Profession or Professors at Common Law both which I love and honour and do very well known and have heard many of them suitable to their Births Breedings and loyal and generous Minds commiserate the oppression of the Profession and Professors of the Civil Law and wish that the proceedings in the Ecclesiastical Courts by the Oath Ex officio and Purgation might continue as it was before that last Act that took it away even for the justice of it as they conceive as also lest it might seem at leastwise in some mens judgments to savour of a kind of partiality that these Oaths Ex officio and Purgation should continue in proceeding at Common Law and not in the Spiritual and Ecclesiastical Courts or Courts Christian as at Common Law by the Laws of the Land they are styled a Title we like well and surely that Nick-name suitable to such debauched and dissolute persons that gave it because in these Courts their unclean crimes were punished and that did commovere bilem though they were punished there onely as before Medicinally to acknowledge their crimes to aske God and the congregation forgivenesse and to take away the evil and scandal and not mulcted or corporally punished by imprisonment or otherwise I say that Nick-name should it be given at all to any court as it ought not it would rather lean to such courts as inflict corporal punishments and mulcts upon such criminous persons by Imprisonment keeping the Bastard children whipping or otherwise corporally punishing them I wish and hope that as both the professions of both Robes sit as sisters under one Crown derive from one and the same head and draw from one and the same Fountain so each knowing their certain bounds and limits of Jurisdiction which if not clearly and explicitely settled I wish and hope will be may proceed christianly charitably and friendly in their several spheres of activity without clashing or the least dissention to Gods glory the good of this Church and Srate and the just distribution of Justice to the benefit and comfort of all the subjects in His Majesties Dominions Let us all remember that not long since there was a generation of men then too much in power that had an equal tooth against both the Professions would gladly have seen the destruction of both and made too great a progresse in it The noble Profession and Professors of the common Law could then expect little more favour then Polyphemus promised Vlysses that he should be the last that should be devoured And probably enough some of them stirred up some of the lesse-considerable common Lawyers and such as favoured their side too much for in all Professions there is good and bad to be iustrumental in the abolition of the Civil Law and when that was done when the out-works were taken in then to have about with the Fort it self They have shewed their Method No Bishop no King But concord and peace it is to be hoped will duly and indissolubly cement there two Professions if amongst our selves we do not ponere obicem and dis-joyne the union Let us never forget St. Pauls good counsel and caution All the Law is fulfilled in one word even in this Thou shalt love thy neighbour as thy self But if ye bite and devour one another take heed ye be not consumed one of another For the Civilians if they have many enemies and but few friends as was said by one that
is the most frequent and onely mention almost of such a thing This very term to Swear you will scarce any where find it in the Old Testament but either under the word Hiphil that is the Imperative commanding conjugation in respect of him that gives the oath or under the word Niphal that is the passive suffering conjugation in respect of him that takes the oath And under the same rule are the Greeks amongst whom Orcos is the name of the oath which almost solely the holy Ghost acknowledges in the New Testament In that word is a kind of straitning necessity and as they say an exigengy no less then there is in the word Orcos for from the same word comes both that is of straitning Thereupon comes that common Proverb War and Oaths are voluntary evils and that they may be good they ought to be pressed and expressed as St. Augustine of Oaths sayes wittily either by the Authority of him that gives the oath or at leastwise by the hardness of his heart that believes not So that it is a sin either to swear or to make war except it be at least in some manner exacted and upon some and no light cause Therefore that it may be required or rather that it ought to be the very force of Nature the very force of the term it self evinceth it But whether from the Magistrate this is the second branch Yes surely from the Magistrate So the Divines of old Not onely every body but every soul is to be subject to the Powers Rom. 13.1 Therefore the Powers have power to commit the body to custody by imprisoning it lest it escape And so likewise the soul to commit that to custody by laying an oath upon it lest it should have any subterfuge by which name God himself hath most fitly called an Oath the Bond or prison of the soul Num. 30.13 by which the soul may as it were be tyed up and being so tyed up may be bound to answer appositely and readily But yet it comes nearer If it be lawful for the Master to force his servant to take an oath as Gen. 24.3 Abraham did if a father to his son as Jacob to Joseph Gen. 47.29 if a brother to a brother as the same Jacob to Esau Gen. 25.33 By how much better right is it lawful for the Magistrate to do it to his Subject whose command is more excellent then any other command I adde also about the right settling in marriage of a son if that be lawful as Abraham to his servant of chusing a fitting place of burial as to Joseph of passing away the right of Birth-right as Esau and in private causes I adde also of the least concernment if compared with the publick Then surely by better righr may the Magistrate do it in the common cause of the Commonwealth whose Interest is greater then any other Interest And that is provided for by Gods Law Exod. 12.8 in express terms in the case of a Pawn saith God let them come before the Magistrate In which place the Magistrates are named by the name of God himself and not by any name but by that very name which is taken from the force of an oath as though he should say Let them come before the Oath-givers or those who when they give the Law in Gods stead in his Judgment and in his Name may require his Oath to be taken That is Gods Deputies Psal 82.6 in Gods judgment 2 Chro. 19.8 the Oath of God Eccles. 8.2 therefore to the Magistrate It is lawful to the Magistrate I say as well Ecclesiastical as Civil Before him that is the Ecclesiastical Judge by Law the Woman is commanded to purge her self in a case of suspicion of breach of Wedlock bond Num. 5.19 Before him that is the Temporal Judge by law the man is commanded to purge himself in a cause of suspicion of breach of Social promise or Contract Exod. 22.8 The practice whereof we see and the practice of the Saints is the Interpreter of the Commandments of the Ecclesiastical Judge in Ezra who required an oath in a Matrimonial cause Ezra 10.5 Of the Temporal Judge in Nehemiah who forced an Oath in a cause of Usury Neh. 5.12 Neither hath the pious and religious Magistrate onely right to do this but the Heathen Magistrate too and that to Gods people Zedekiah gave his Oath of Allegeance to Nebuchadnezzar 2 Chron. 36.9 though forced he gave it and rightly too if we believe Ezekiel and afterwards by a sacrilegious boldness he attempted to break it he scaped not unpunished for it Ezek. 17.13 Lastly I adde that this was not lawful to do to their own people onely but also to guests and strangers living within their Territories either for trafficking or any other cause In which regard Joseph now become Vice-Roy of Aegypt imposes an Oath upon his Brethren in a case of Treason suspected though both by Law and by Nature they were Canaanites Gen. 43.3 therefore hence it now appears that it is lawful to impose an Oath and that it is lawful also to the Magistrate But whether is it lawful to do it to the party that is the party guilty or defendant the third thing I propounded Nor can that be called into question Exod. 22.8 He to whom the Pawn was concredited is the party guilty or defendant Num. 5.19 The woman suspected by the jealous husband to have wronged his bed is also the party guilty or defendant but to each of them is this oath to be given nor is it lawful for them to decline it In a few words I will summe it up Whether one deceitfully keeps his neighbours goods or perfidiously deteins his friends goods or restores not to the owner his found goods when he requires them Levit. 6.3 or as it seems to me in any other crime for it is mentioned indefinitely 1 Kings 8.31 in whatsoever he shall sin it is lawful for the Plaintiff or Agent to impose an oath upon the party that is the guilty or defendant or to lay an oath upon him as it is in the Hebrew phrase nor is it lawful for the guilty or defendant party to refuse it whether it be imposed by the Agent or Plaintiff or by the Magistrate Indeed I cannot deny but we are fallen into such times that it may be expedient to impose the oath upon the party Agent or Plaintiff and not onely upon the Defendant for it may happen that they may both prevaricate that is the party Agent or Plaintiff by calumniating and the party guilty or defendant by Tergiversation But if we would take the Law from Heaven from the holy Writ to the party guilty or defendant 't is more necessary to be given Examples are thereof Scarce will you find in the Law an oath laid upon the Agent or Plaintiff but very often may you find it upon the party guilty or defendant Moses renders the reason of it The actor who for the most part is the party
National Contracts Not admitting of Embassadours or detaining them or using them in any uncivil manner Making of War or contracting of Peace Sending supplies to our enemies or oppressing our friends and confederates Imbargo's seizing upon our Merchants goods at land or stopping our ships or goods at Sea The arbitrating of differences between Nation and Nation frequently referred to Princes or other States Of the force of national Contracts and of their duration whether they shall bind successours or die with the Princes that made them Latitude of Territory and jurisdiction either upon Sea or Land These and such like are the transactions and matters that may be frequently agitated dealt in between us and other Nations wherein before we fall to an open War we chuse to reason and expostulate the matter with them sometimes we think it necessary to remonstrate the right of our cause to other Nations sometimes to declare the state of the business to our own people Neither of which can be done effectually and with advantage nor shall we be able to hold any such argument convincingly if we have not the perfect knowledg of the Law of Nations and the learning of the Civil Law which to be sure is the onely kind of Reason that other Nations knowing no other Common Law or Rule besides it for such matters will encounter us withall And since we have such great need at this time of Armies by Land and Navies by Sea to defend us from factions at home and enemies abroad I would put it to those of the Military order to consider how not onely usefull but necessary that profession is for carrying on of Military business also as well by sea as by land that all the military discipline good government that they have in their Armies and the right which they are enjoyned to afford to their very enemies is directed by the rules and principles of that profession for it must be acknowledged that the Municipal Law as to the carrying on of Martial affairs is altogether impertinent and of no use at all the same being a Law useful but in peace onely But there are peculiar Laws and a proper discipline for the state of War Sunt belli sicut pacis jura and they are accommodated to the very nature and exigencies of it some of which are That there be solemn denouncing of the war intended that all dissenters may withdraw in time and to divert other Nations from adhering That it be prosecuted by just and honourable ways without treachery corruption breach of faith poyson or secret assassination which the gallant Romans did disdaine to act though for never so great a victory That all articles and capitulations made be strictly kept and observed even towards Turkes Pagans Jews or Infidels That they be interpreted in the plainest and most equitable sense without any art or subtilty at all That an enemy after he has yielded himself be not kill'd but kept alive for exchange or ransome That what is gotten from the enemy is good and lawful purchase though it was newly taken from some of our own people or confederates so that it were but once brought safe into the enemies Quarters That the enemies countrey when it offers to yield be not laid waste burnt or destroyed That when a Town is to be stormed women children aged Ecclesiastical persons so far as is possible may be spared That it be free to friends or confederates to trade with the enemy so they carry neither victuals money armes or ammunition That the Countrey through which the Army passes no offence being given be not injured but kept from spoyl and rapine That Heraulds or messengers sent from the enemy be received and dismissed with safety That strictness and severity of discipline greater then in peace be maintained within the Camp the valiant advanced to honours and admitted to partake in the spoyl which he did help to get the cowardly disgraced the disobedient rigorously chastised the incorrigable cashiered and the aged and worn out souldier be dismissed to ease with reward and honour That a difference of degrees be observed and a subordination made as the places of command differ That for Military offences or contracts and promises made between souldier and souldier the conisance thereof be in the Court Marshall and to be tried by the Law of Armes onely That Hostages be taken and kept and may be put to death if the enemy prove perfidious That neither friends goods coming in an enemies bottome nor a friends ship though carrying enemies goods in her be taken as prize That when a victory is gotten the enemy subdued be used with all clemency and moderation That Priviledges be granted to souldiers beyond other men with an infinite number more which are no where to be found collected and laid together but in the books and writings of the Civil Law which is the onely proper learning to teach and instruct in those matters For it has been the Civilians work to draw together as it were into one body and Systeme all that the Civil Law it self does afford and whatsoever else can be gathered from the testimonies of the ancient Philosophers Historians Poets and Orators in what they are all as it were by the light of nature consenting in one and the same judgment also what has been delivered by the ancient Fathers and most approved Canons of the Church on that subject and especially to bring into argument what has been constantly upon the same occurrences in war judg'd and practised by the most War like and Heroick Nations that have been as the Graecians Assyrians Medes Persians Lacedaemonians Carthaginians but especially the Romans with whom for experience discipline in War and justice and bravery towards their enemies no Nation that ever acted on this great Theatre of the World is to be compared And so by these helps the Laws of War in use at this day have been made and perfected only through the Civilians pains and industry neither are they to be met with any where together but in their books and writings And therefore since this profession is so useful and necessary for the souldiers business also that they cannot promise to themselves any good order wise conduct or happy success with their Martial enterprizes but by that light and direction which it affords it is evident that it could never be worse spared or discountenanced then now at this time Which I humbly leave to be further thought of by the wisdome of those that rule over us And so desiring thee to excuse me this once for appearing thus in publick being upon so pressing an occasion as to revive if by such weak endeavours it were possible a whole profession almost quite expiring I bid thee farewell and remaine Thine in all possible respects whatsoever Ro. Wiseman The Arguments of the Chapters of the First Book CHAP. I. THat a Law ought to be agreeable to true Reason page 1 CHAP. II. That what Reason
And therefore Tully said as he is quoted by Carbe c Tractâ—â— de legib lib. 6. dist 〈◊〉 Nos legem bonaurd mala nulla alia ratione nisi naturae normâ dividere possumus We cannot discern a good Law from a bad otherwise then by comparing it with the Law of Nature And therefore he will have it to be justorum injustorumque distinctio ad iâ—â—am antiquissimans rerum omnium principâ—m naturam expressâ— a rule discriminating that which is just from that which is unjust delineated and drawn forth by the old Originall of Nature and sayes it is the highest or chief reason grafted in Nature commanding those things which are to be done and forbidding the contrary And again d Lib. 2. De Inven. Initium juris à natura profectum deinde quaedam in consuetudinem ex utilitate rationâ—â— venerunt postea res à nacura profectas à consuetudine probatas legum metus religio sanxit The beginning of all Law did proceed from Nature it selfe but afterwards there were certain things which were by evidence of Reason found necessary and thereupon brought into common practise and at length the fear and reverence of Laws did settle and enforce what had been so taught by Nature and Custome it selfe had allowed of So that the Act of the Law is but to see that effectually observed and executed which Nature hath ordained and which the common Reason Custome of men doth declare to be just equal and necessary And sometimes the same e Lib. delegâ—â— lib. 1. Tully styles Law the very force of Nature the Vnderstanding and Reason of a wise Man the rule of right and wrong And f Lib. 3. de rep defining Law as it ought to be rather then what generally it is he terms it right reason spread over all people durable everlasting which as fire burns every where alike is not one at Rome and another at Athens one now and another hereafter but being the same and unalterable serves for all times and runs through all people which began not when it was first written but when it first sprung forth from Nature Plato g In Min. de rep delegib will also have it a reasonable rule leading and directing men to their due end for a publick good ordaining penalties for them that transgresse and rewards for them that obey And Isidore who requires other properties in a Law requires this of Reason too for in his h Lib. 3. cap. 3. Etymologies he sayes Lex erit omne quòd ratione constiterit duntaxat quòd religioni congruat quòd disciplinae conveniat quòd saluti proficiat A Law shall be that which may stand with Reason agree with Religion suit with the education and dispositions of the people and be beneficiall to the publick welfare With i Prima fecunâ—ae qu. 97. Ar. 1. Aquinas also Lex humana est quoddam dictamen rationis quo diriguntur humani actus Humane Law is a dictate of Reason by which humane acts are steered And again k Quest 91. Art 4. Lex nihil aliud est quâm quaedam rationis ordinatio ad bonum commune ab eo qui curam communitatis habet promulgata A Law is nothing else but a transferring or applying of Reason to the common good manifested to all the people by him who hath care of the Common-wealth The Civil Law speaks the same thing l Lib. 1. Dig de Legib. Lex est commune praeceptum virerum prudentum consultum A Law is an universall and generally known precept Notitia aequi boni à natura omnibus indita as m Lib. 1. Gothofred explains it ingrafted in Man by Nature and the result of sage and understanding men All n Minsinus Inst de jur Nat. gent. Civ in princ Civilians without any contradiction doe consent and agree that the true Law of a State is but Determinatio juris naturalis a declaring or expounding in such particular cases or accidents as most frequently happen amongst men what the Law of Nature intends by its generall precept or it is a rationall distinguishing upon the Law of Nature making it to be of force in some cases not of force in others with such directions for observing the same and kindes of punishment to the offenders as the wisdome of each state shall judge most rationall and most convenient Not to Steal not to commit Adultery not to Kill Nature it selfe taught in generall but who should be said to Steal who to commit Adultery who to Kill what proof should be sufficient to convict a Man of these crimes who might be the accusers how and in what manner and before what Judges the offenders should be proceeded against what punishments they should suffer and after what time no accusation for them should be heard because the Naturall Law did not teach in particular therefore the Law of every State doth determine them which as it is done in pursuance of the primary precepts of Nature so must it be done too with the soundest judgement and reason having an eye to the matter of the precepts to the nature of the people and to the state of the Common-wealth it selfe And these severall particulars being thus determined and put into a Law they adopt to themselves the name of a National Law o L. 6. Dig. de Just Jur. Jus Civile sayes Vlpian est quod neque in totum à naturali jure vel gentium recedit neque per omnia ei servit Itaque cùm aliquid addimus vel detrahimus juri communi jus proprium id est Civile intelligimus The Law of a people is that which neither doth wholly estrange it self from the Law of Nature or of Nations nor doth strictly follow them in all things neither when therefore we adde or diminish ought from the Vniversal Law we make it thereby a peculiar Law and give it the denomination of a Civill or Municipal Law so that the Roman Law will have no other materiall difference to be between the Law of Nature and the Dictates of Reason and the Law of a State but that what was before common and universall in nation is now by distinguishing it into cases by fitting it with proper circumstances for more ready execution and by moulding it into a form appropriated to peculiar use The Canon Law that enumerates all the essentiall properties of a Law doth exact also that it be honest just and agreeable to Nature p Cap. 2. Dist 4. Erit lex honesta justa possibilis secundum naturam secundum patriae consuetudinem loco temporique conveniens necessaria utilis manifesta quoque ne aliquid per obscuritatem in captionem contineat nullo privato commodo sed pro communi civium utilitate conscriptae A Law shall be honest just possible according to Nature suiting with the customes of the Countrey agreeing both with place and time necessary usefull and also plain lest through
obscurity it may ensnare nor made for private advantage but for the common good of all the people Thus by the judgement of all Ratio est anima legis Lex tunc laudatur quando ratione probatur Nature is the Fountain and Reason doth animate and make the Law and gets it the praise and acceptation This indeed is a lightning and raye of the Divinity Ratio nihil aliud est quam in corpus humanum pars divini spiritus immersae sayes q Epist 66. Seneca It is the stream and dependance of the eternall Law which is God himselfe and his will Quid natura nisi Dâ—us divina ratio toti mundo partibus ejus inserta What is Nature but God and Divine reason inserted into the whole world and immixed in all the parts thereof r Lâ—x nihil aliud est nisi recta à numine Deorum tracta ratio Cicer. Philip. 11. The Law of Moses in his Decalogue is an outward and publick Coppy the Law of the twelve Tables and the Roman Law the morall instructions of Divines and Philosophers the advertisements and counsells of Lawyers the edicts and ordinances of the best Princes are no other but draughts and particular Pourtrayes of it If therefore there be any Law that varieth from this first and originall Mistresse commanding where she forbids or forbidding where she commands or allowes it is a monster falshood and error As for example Adversus periculum naturalis ratio permittit se defendere Itaque si servum tuum latronem insidiantem mihi occidero securus ero sayes Å¿ Lib. 1. Dig. Ad l. Aquil. Gaius Natural Reason gives a man license to defend himself against any danger therefore I am in no danger of the Law if I kill thy Servant that lyes in wait to mischief me Again Si quis percussorem ad se venientem gladio repulerit non ut homicida tenetur quiâ— defensor propriae salutis in nullo peccásse videtur sayes Gordian the t Lib. 2. Co. Ad l. Cornel. de Sicar Emperor If a Man shall strike him dead that comes to destroy him he shall not be punished as a Man-slayer because the preserver of his own life offends in nothing That Law then surely is very unnatural that inflicts forfeiture of any part of his estate though it requires not either the whole or his life upon any person for slaying another in his own just and necessary defence when as if he had not done as he did he must have been in perill of losing his own life It is as prodigious to naturall equity and good reason that a man that is unhappily peradventure doing of a lawful act nor purposing the least mischief to any person but by meer chance author of anothers death should be subject to any punishment or losse whatsoever Mera infortunia nec paenam mereutur nec ad restitutionem damni obligant sayes u De Ju Bell. Lib. 3. cap. 11. sect 4. Grotius No man deserves to be punished or is bound to make any reparation for pure casualties If an arrow being shot at a Beast or at Buts lights upon a Man and kills him or a stone cast over an house or an arme of a Tree being cut and falling where seasonable warning is given to all that are neer to take heed be the cause of anothers death such casuall Homicide is not in any kind punishable x Lib. 5. Co. ad l. Cornel de Siâ—ar sect 5 Inst. de l Aquil. A Law therefore that punisheth a man for such adventure or misfortune is not a just or rationall Law being indeed repugnant to the Law of God which protected such persons and appointed them a City of refuge to flye unto y Numb 35.15.22 Josh 20.3 Deut. 19.5 for such an act happening in such sort seemeth to be the work of God himself It is a cruelty also which Nature and Reason abhorreth that a King who ought to be as a Sheepherd and Guardian of his people should have an established liberty to endanger his Subjects lives and liberties by a criminal accusation brought against them and yet they be denyed the natural liberty and freedom to defend themselves by bringing that Evidence and assistance of Counsel that may serve to clear them Indeed all kind of awfull submission and reverence is due to the Prince from his Subject but that is no way impeached by a modest and fair defence And therefore by the Civil Law in any matter of complaint that was brought by the publick Exchequer whether Criminal or Civil the defendant had his full defence most free Defensionis facultas danda est his quibus aliquam inquietudinem fiscus infert z Lib. 7. Co. de Jur. fise Liberty of defence ought to be granted to those whom the Exchequer brings into any trouble And whosoever is impeached as a Malefactor that Law is so indulgent to him till he be convicted that if he be in Prison the Magistrate is to make known by open Proclamation what day he intends to hear him Ne hi qui defendendi sunt sayes a Lib. 18 Sect. 9. Dig. de Quest Paulus subitis accusatorum criminibus opprimantur quamvis defensionem quocunque tempore postulante reo negari non oportet adeo ut propterea differantur proferantur custodiae Lest they which are to make their defence be too suddenly brought to tryall by their Accusers and thereby destroyed Howbeit the Court shall not deny to hear their defence at any time when themselves will ask it for which cause the Prisoners may have a certain time set at first and then if cause be further day also may be given And though when the person accused is not under restraint if he shall not appear to answer the accusation some time within a year after Summons had his estate is irrecoverably lost and forfeited to the Exchequer and for that he shall never be heard more b Lib. 4. Dig. De requir vet absent damn yet as to save him from personall punishment neither the expiration of a year nor the efflux of any time shall barre him but that he may still be heard to defend himself c l. 2. co De Requirend rei For self-preservation is so d Hoc ratio doctâ— morgentibuâ— serâ—â— natura ipsa prascripsiâ— ut omnem semper vim à corpore à capite à vitae suae propuisarent Cic. pâ—o Mâ—l natural that a Law that is set up to infringe it may justly seem to fight against nature These Laws therefore and such like as doe thus crosse and encounter common sense and natural Reason are no fitter to be styled Laws then the dead Carkasse of a Man that is destitute of the essentials of Life Soul and Reason can be called a Man And therefore Tully did set down the truth when he taught e L. 1. de legib Eos qui perniciosa injusta populis jussa descripserint cùm
ought to be reputed by a Child as Venerable and Religious But in order to this it also has forbidden Children to Marry without their Fathers consent first obtained which if they doe the Marriage is made void o Lib. 18. Dig. de vit nupt l. 7. Co de nupt Inst eod in princ Likewise Si filius matrem aut patrem quos venerari oportet contumeliis afficit vel impias manus ei infert praefectus urbis delictum ad publicam pietatem pertinens pro modo ejus vindicat If a child shall uttter approbrious words of Father or Mother whom he ought to have in veneration or shall lay wicked hands upon them the Magistrate shall punish it as a publick offence and as the quality thereof deserveth p Lib. 1. Dig. de obseq sect 2. It will not suffer Children to bring any criminal accusation or exception against their Parents whereby their credit may be empaired q L. 2. dig cod nor commence any suit at all against them except special leave from the Judge be first gotten r Lib. 2. 13. Dig de injuâ— vot Nor put a parent to the Oath of calumny Å¿ Lib. 7 sect 3. dig de obsequ as may be done to all parties besides that are in judgement lest it should thereby be suspected that he does calumniate with his own Child Nor shall a Child be heard as evidence against his Parent though he offers himselfe to be a witnesse against him t Lib. 6. Co. de Test Again the Lawes of all States professe to abhor all fraud deceit and circumvention in all contracts and dealings amongst men as Nature it selfe and the common voice of Nations has forbidden for but upon confidence of honest upright and fair dealing no trading intercourse or correspondence could be secure Yet if the Law of a State shall onely admonish all that buy barter or excchange to be cautious and wary at their own peril and when they be cheated with any unsound corrupted Merchandise or in the price beyond all measure if it shall leave them helpless without relief Or if a State shall give licence or toleration to debtors to passe convey away all their Estates thereby to deceive their Creditors so it be done before action brought or if practises of collusion may be used or feigned actions brought under counterfeit and fictitious names and in colourable and fallacious forms on purpose to defeat others of that right which was intended them or to delude the Law by transferring a right thither whither lawfully it ought not to goe where then will honesty truth and faithfulnesse so requisite in all affaires acted amongst men be And therefore the Civill Law does not onely say in the generall In omnibus contractibus bona fides requiritur And Naturalis suadet aequitas ut ex bona fide contrahatur u Schenidw Inst de action s â—ctionum nu 6. All Contracts must be made with honesty and natural Equity invites us to honest dealing But it comes to particulars also and will allow of deceit no where for if a man be deceived in the price of a Commodity bought supra dimidium above half the value of it for so far as to half inequality of value is born with for avoiding endless challenges Et nâ— omnis obligatio emptionis venditionis semper sit in incerto that all uncertainty in buying and selling may be removed x l. 2. co de rescind vend the seller at his election shall be enforced either to take his commodity again or restore to the buyer what he has taken above the true worth of it Immodica laesio excedens dimidium justi pretii gravior est quà m ut toleretur an immeasurable prejudice which exceeds half the just value is more than can be born withall But if the fraud be not in the price but does infect the contract or act done in another kinde the Judge has commission either to disannull the thing or to take such order that the deceiver may not gain by his evil subtilty y l. â— Dig. fiquis â—aut l. 13 q. s 1. di de reg jur 2. nor the other lose by his simplicity and weakness z l. 155. Dig. de reg jur If a diseased or unmerchantable commodity be sold and the defects thereof not visible the Civil Law will compel the seller to take it again and give the buyer his money back a Dig. De adi edict Or if a seller shall tell the buyer that the thing fold is thus and thus qualified by which the buyer that cannot see whether it be so or no till some good trial had is induced to give the more and afterwards it is found clear otherwise the seller is to give so much back as the thing is lesse worth by those qualities which are wanting Nam ea quae commendandi causa in venditionibus dicuntur venditorem obligant nisi palam sint Those qualities or conditions which any thing that is sold is commended for must bee made good by the seller except they bee such as the buyer may be by his own view certified that they are not so good as they are spoken b l. 43. Dig. de contrab crupt Likewise if a man shall sell Land House or any thing else to which he cannot make a good title but is recovered by another though he never undertakes to warrant it or make it good yet emptorem indemnem servare debet he shall save the buyer harmlesse because it doth naturally arise without any special covenant out of the bargain it self that the buyer shall either quietly enjoy the thing or at least be indemnified by him that sold it c Lib. 11. Dig de act empt 16. co de evict And if a man shall pass away his Estate to defraud his Creditors leaving nothing or not enough in himself to satisfie his just debts that he had contracted before the Civil Law without distinguishing whether it was done before action brought or after revokes it out of the hands into which it was put and reinvests the debtor in it and makes it as liable to his debts as if no such thing had been done d Dig. quae in fraud cred Neither does it onely disallow but punish also those that do prevaricate and help the cause of their adversay by waving their own just pleas and wilfully failing to prove what they may and in shew undertook to do e Di. de pravaricat It will not suffer any such combination or practise of colluding to have any effect to the taking away or prejudicing of the right of any person that is concerned For if the Executor of a Will shall combine with any of the next of kin to make the deceased dye intestate and thereupon does faintly defend it in Court where it is in question and subducts or conceales those proofs that should uphold it whereby for want of proof it
could be prosecuted against any person after two years time ended so that all the proceedings that should follow and be made after such time ended was absolutely null and void b Lib. 13. Co. de Judic Lastly so carefull it is to preserve and uphold the rights of men that it does not make any single judgement to be absolutely conclusive and finall if he that is cast be desirous to bring his cause to be tryed again by another Tribunall So much more fitting is it that the sentence of any Judge should be impeached and overthrown then that truth should suffer or any mans right should be injuriously taken away Within ten dayes therefore after sentence given he that is condemned may by appealing to the next superiour Judge complain thereof and upon sufficient error assigned or upon some further proof made then was before he may procure the first sentence to be quite reversed or at least reformed for the end of an Appeale is Vt aut iniquitatem aut imperitiam judicis corrigat c Lib. 1. dig de appellat To rectifie either injustice or errour These few instances for they are intended for no more and thereby to take a conjecture of the rest also may suffice to shew that as the safety of the peoples rights is the generall end and intention of the Civill Law so it does dispose and qualifie all its constitutions and particularly the formes of triall and judiciall proceedings to the self-same end and purpose and it does constantly hold and prosecute the same course in other matters For if the Civil Law be rightly understood it will appeare that they grosly erre who thinke that though by the Civil Law property is sufficiently enough maintained against common men yet that the Prince or Soveraign has a looser power given him thereby then other Lawes will allow to command or dispose thereof at pleasure because it is a rule in that Law that Quod Principi placuit legis habet rigorem d Lib. 1. dig de Constit Princi sect 6. Inst de Jur. Nat. Gent. Civil What pleases the Prince has the force of a Law and Princeps legibus solutus est e Lib. 31. Dig. de Legib. Novel 105 c. 2. A Prince is not tyed to Lawes Which being literally understood and not taken in that faire and moderate sense which by the course of the whole Law and by the current of Interpreters it is expounded in does import as if Property Life Liberty and all were subject and did hold of the Princes will But that this cannot be the meaning is most evident for that his meer Lust or appetite or every inordinate command that goes forth from him should be a Law is not so believed that the Civil Law ever intended But when the Roman State was now changed from being a popular State and was become an absolute Empire and that the people had conferred their whole power that was in themselves before upon Augustus Caesar in whose time it was that the Royal Law was made and his successors it was meant by those words that the Legislative power should wholly rest in him without the concurrence of any other and that thenceforward the Laws should come from him and be as obsequiously obeyed as if they came from the whole people but yet so that they should not be repugnant to the Lawes of Nature the common dictates of Reason or mischievous to the publick welfare And therefore sayes Harprechtus Verbum placendi aut Placiti non voluptatis non libidinis non etiam absoluâ—ae est voluntatis sed justitiae rationis consilii f D. sect 6. Inst â—od The word Pleases or Pleasure does not denote Ryot Lust or absolute Will but Justice Reason and good consideration so that though the pleasure of a Soveraign whilst he publishes any thing for a Law is binding and to be obeyed because a Law can come from none but him where the nature of the government is such Yet it must be equall just honest and profitable g Haâ—preâ—ht Inst de rer div in pâ—inc nu 130. And what does a Soveraign more in this then all other sorts of Governors whatsoever be they more then one as in an optimacy or be the government in the whole people or what more power is given in this by the Civil Law to an absolute Soveraign which is not by other Laws given to the supreme highest rules of any Nation Again all Laws in the world do allow those that have the Supreme Power in them to take away Liberty by Imprisonment where there is any publick danger by Freedom or where it may be a just punishment for contempt and disobedience and to take away life too for capitall offences committed and where publick defence calls for it to command their very Subjects persons and estates to such a proportion as the present necessities require for without this power no community can long endure nor any peace be preserved And more then this nor in any other cases does the Civil Law grant a soveraigne licence to touch either property life or liberty h Harpretcht loc titat nu 95. And where the Civil Law hath declared that a Prince is exempt from Lawes the meaning is not that he may violate and trample upon them as himself listeth as oft as they stand in his way for that is contradicted expresly by divers Texts of the Civil Law i L. 4 co de legib l. 23. de Dig legat 3. but that he is not punishable when he breaks them because he has no humane Superiour to judge or question him or to exact obedience from him that in some cases he may give license to his subjects not to observe some certain of them by way of dispensation that he may grant pardons to some that have transgressed them where the nature of the fact will bear it and that he may also quite abolish them when they are growne useless or hurtful k Harprecht loc citat nu 120. And under what Law or Government is it where all these things are not cleare without any dispute and held lawful and continually done And generally in all instances of the Civil Law as well as in those whereof mention is made before it may be observed that the imperial Law does not onely ratifie and confirm the general Lawes of Nature and of Nations but takes care also to reduce all its constitutions that might be any way instrumental to the distribution of justice in particular cases how remote soever they be from the prime and chief principles to a perfect conformity with them and so ought the Law of every State to do for that is the true way to make it rational throughout to keep it from being contradictory to it selfe And that particular Law that makes the least deflections from nature and the common reason of man and whose Acts and Edicts carry most of that evidence and demonstration along
with them as doubtless some Lawes carry more and others lesse as the wisdome of those that made them was greater or lesser that Law I say must needs be the most rational and thereby the best and perfectest Law of all other CHAP. II. That what Reason teacheth should be made the subject of a Law is no superfluous but a profitable thing IT is not any hard matter to give the reason why the principles of Right and Justice and the duties of a civil life that are already ingraven by nature in the heart of man should notwithstanding be further declared and made known by a Law For First though some principles of reason be in themselves so apparent that they need no illustration yet there be others more secret and more remote from the understanding than that they can be discerned by every mans present conceit without some deeper discourse and judgement In which discourse because there is difficulty and possibility many wayes to erre unlesse such things were set down by Lawes many would be ignorant of their duties which now are not and many that know what they should do would nevertheless dissemble it and to excuse themselves pretend ignorance and simplicity which now they cannot a Tametsi nulla perturbatione Judices ab aequitate dimoverentur nihil ominus tamen legibus opus est quibus vel uti lucerna quedam vel imperiti in denfissimis humanarum actionum tenebris dirigantur vel scelerati metu paenarum terreentur Bodin de rep l. 6. c 6. That a Ship and Goods cast away at Sea by tempest if they be driven to Land shall accrue to the publique Exchecquer and the distressed owners shall not by any claim recover them some will not believe it to be barbarous and most unnatural for it is practised by some nations b Sic vivitur ut qui portus babent cam câ—udelitatem tum in cives tum in peregrinos exequantur Jus quaeris Errorius facit Bodin de rep l. 1. c 10. and defended by divers learned men And yet a very Heathen by instinct of nature could cry out Absit O Jupiter ut lucrum captemus tale ex hominum infortunio Jove forbid that we should draw such lucre from mans distresses And therefore Constantine the Emperour did by a Law establish this dictate of Nature and Reason and restored them to the owners and charged his Exchecquer-men not to meddle with them Quod enim saith he c Lib. 1. co de Naufrag jus habet fiseus in aliena calamitate ut de re tam luctuosa compendium sectetur What right can anothers calamity bestow upon the publick treasury that it should reap benefit from a sad disaster Secondly Falshood doth so seek to cloath it self with the similitude and appearance of truth that none of the ordinary sort of men and not all of the best rank neither can discover or distinguish true and solid reason from that which is false and counterfeit When therefore our own natural instinct inbred knowledge beares witnesse to any thing we have the warrant and allowance of the Law for it besides no false colours or semblances of reason can deceive us for what the wisdome and experience of a Nation has agreed and declared to be just and convenient and our hearts do own and allow to be so that unquestionably carries it in the greatest evidence and certainty of true and pure reason that mortal men can attain to in things of humane and civil intercourse Thirdly the Lawes of Reason which Man retaining his original integrity had been sufficient to direct each particular person in all his affaires and duties are not of themselves sufficient but do require the accesse of other Lawe now that Man and his off-spring are grown thus corrupt and sinful And because the greatest part of men are such as prefer their own private good before all things even that good which is sensual before whatsoever is most Divine and for that the labour or doing good together with the pleasure arising from the contrary doth make men for the most part slower to the one and proner to the other therefore unto Lawes it hath seemed alwayes needful to adde rewards which more allure unto good then any hardnesse deterreth from it and punishments which may more deter from evil than any sweetnesse thereto allureth wherein as the generality and substance is natural Vertue rewardable and Vice punishable so the particular determination of the reward or punishment and all other circumstances is the proper act of the Laws Fourthly when men are rebuked for acting contrary to the Law of Nature and the Light of Reason what one amongst them commonly doth not stomack at such contradiction storm at reproof and hate such as would reform them Notwithstanding even they which brook it worst that men should tell them of their duties when they are told the same by a Law think very well and reasonably of it because they presume that the Law doth speak with all indifferency that the Law hath no side-respect to their persons that the Law is as it were an Oracle proceeded from wisdome and understanding Thus we see that what Reason it self prescribeth may in sundry considerations be expedient to be ratified by a humane Law and indeed that a humane Law ought in substance to hold forth nothing which Reason allowes not of CHAP. III. What is here meant and intended by Reason BUt lest there should be any mistake touching the necessary quality of Reason which we so stictly require in a Law it is but needful that we should explain what we intend by Reason For certainly there is not a more deceitful thing than Reason it being made use of frequently by false shews and colours to beautifie the foulest and most deformed things and is grown to be the common gloss that every evil does varnish and deck it self withall also it is such a faculty that those that are partakers of it in the meanest measure do infinitely extoll and admire what they apprehend to be reasonable though to a right judgement it be nothing so and what they have not understanding enough to conceive through their own natural weakness they do as much disdain and condemn how judicious and solid soever it be Although therefore the plainer a Law is and the more obvious to the understanding of those that are to be guided by it the better and the more commendable that Law must needs be yet we would not have it thought that we allow no Law to be good but what every man that is bound by it does immediately understand and approve of For We cannot admit that the capacities of common men are sufficient to judge of Lawes which may be rational enough though the reason of them be not seen to them yet the main principles of reason are in themselves apparent and discernable by every eye and it is not easie to finde men ignorant of them and therefore a Law that
right or safety of a few if their detriment or mischiefe may secure the whole In these cases Legum convenientiam aptitudinem semper expetimus non semper aequitatem The extremities of a Nation must be provided for by fitting and convenient meanes though the exactnesse of Right and Justice seems to be infringed for herein the Common wealth is like unto a Ship in a storm at Sea where the Master may cast over-board what private mans goods he will to lighten the Ship and to preserve the whole So where an enemy with an Hostile intent is coming against a great City the City may demolish or set on fire the Suburbs rather then permit the enemy to harbour there thereby to annoy and endanger the whole City The like must the establishments of Law be that are directed to a publick end they must aime to procure the common welfare without any respect to private right or imaginary reason But in such Lawes as are purposely made to defend every mans privaee interest and to pacifie contentions and quarrels arising thereupon and where the publick is not concerned it not onely may but ought to be otherwise They must hold forth Nature Equity Reason and a sound judgement so at to command every judicious mans assent and approbation and even they that are cast may not complain murmure or dispute the same And in the same manner has Wesenbeck in his Paratitles upon the Digests a Tit. de Just Jur. nu 14. differenced these two sorts of Laws Jus privatum saith he quia in reddendo cuique quod suum est versatur eo ad normam aequalitatis justitiae congruat oportet sed jus publicum non totum ad normam aequitatis vel aequalitatis ut jura privatorum sed ad id quod reip est opportunum praecipue aptatur The Law that is made for the use of each subject against another because the office of it is to give to every one his own it must measure it out by the precise rule of equality and justice But the Law that is made to order the generall welfare of the whole State is not tyed to any such rule of equity but is such as the advantages and exigencies of State require In all private affaires therefore that happen between party and party wherein there is no mixture of State-interest at all and which come to be determined by a Law we require that the rules by which such Controversies are appointed to be decided have not in circumstances for they may be arbitrary and according to meer will but in substance so sure a ground in Reason and common Equity for the most part as either to be consonant to the dictates of Nature or obvious to vulgar understandings or at least discernable by the wisest and most judicious of men acquainted with the principles of Law and the rules of Right and Justice Neither is it the bare reason of the wisest if it be such as is floating in the brain onely that will here suffice but it must be committed to writing and have such an authority to own it as is authenticall and currant amongst the greatest and best disciplined Nations also which kind of reason thus authorized especially in any ample measure is to be looked for and found onely in the Civill Law b Ratio naturalis secundum hominum captum quandoque variat multi non tam ratione ill quà m phantasia aguntur Leges autem latae à sapientissim◠viris judici◠emnis seculi approbatae certè cam rationem tenem Alb. Gentil de ju bel lib. 1. c. 1. CHAP. V. That the Customes of a Nation ought in like manner to agree with Reason ANd here I am not unmindfull that besides written Lawes and constitutions there are belonging to every Nation Customes and usages unwritten which have as great an over-ruling power upon the persons and rights of the people after they have been generally allowed and that their observation hath been constant and un-interrupted for a long time together And therefore sayes Modestinus a L. 40. Dig. de Legib. Omne jus aut consensus fecit aut necessitas constituit aut firmavit consuetudo All Law proceeds either from consent necessity or custome Neither is it rare but common to find in every Nation such usages as doe intermixe themselves with the acts of Justice and the rights of the people and yet they have by long continuance so worn out their Originall that no rationall account can be given of them nor no ground in reason rendred by those that use them and yet they will not stick to sacrifice their most pretious enjoyments to preserve them nor will admit of a change of them upon any pretence of greater advantages whatsoever The reason hereof lyes in the affection which the people are apt to bear towards that of which themselves are the Authors Customes being first brought in and consented to by them but Lawes are imposed on them by their Princes whether they will or no Consuetudines sayes b Rer. Judi◠l. 2. c. 1. Anaeus Robertus subditis neque graves sunt neque odiosae sed leges istae municipibus videri solent supra caetoras omnes acceptissimae cùm toler abilius sit consuerudinis vinculo quà m legum necessitate astringi Quà m dulce quà m gratum est voluntariae subjicii necessitati illo juris vinculo astringi cujus cùm authores simus puderet iniquitatem ant severitatem accusare At regia edicta non ratio sed sola dominantis voluntas justa sit an injusta sancit moderatur Customes are neither burthensome nor unpleasing to the people but above all other kindes of Law seem most acceptable since it is more tolerable to be tied to Custome than to an imposed Law How sweet and pleasing is it to be subject to a necessity of ones own making and to be bound by such a Law which when we have made our selves we cannot for shame complain that it is either unjust or rigorous But the Edicts of Princes flow not from reason but from meer will without respect either to right or wrong Besides though the reason of some Customes be not now discerned yet it cannot be supposed but when they were first admitted by the people they tended to their common good For Quoties de jure populi agitur apud populum cui mutare cui abrogare cui ferre quas velit leges accipere quas velit rogationes liceat nunquam se ipse diminuet They will never prejudice their owne rights by any Custome or Law which themselves establish sayes Quintilian a Declam 254. Howbeit it is no more essentiall to a Law then it is to Custome to be reasonable when it is first ordained b L. 1. 2. co Quae fit longaconsuet Rei non bonae consuetudo pessima est Nemo consuetudinem rationi veritati praeponat quia consuetudinem ratio veritas semper excludit
truth yet there is nothing either of Equity or Reason to make them so authoritative and powerful as that they should be drawn into example for the future and be made patterns to determine other though never so like cases by since the wayes and means of obtaining them may not be fair and their integrity and soundnesse be questionable Fourthly whereas similitude and likeness of cases is the onely reason to perswade the walking by the light of such Judgements as have been before pronounced upon facts that are supposed to have had the same circumstances Quintilian f Institut l. 5. c. 2. sayes very truly Vix ulla est causa per omnia alteri similis there is scarce any cause that suits or agrees with another in all circumstances and again g Lib. 7. iupraefat he sayes Tot seculis nulla reperia est causa quae est totae alteri similis In so many ages and in such a multitude of cases that have occur'd there has not been found one wholly like another for indeed the dissimilitude and difformity that is amongst our selves and the whole off-spring of man not in outward form visage lineaments or stature onely but even in our natures tempers inclinations and humours also makes all the matters we deal in and the actions that flow from us disagreeing too Also in the other productions of nature and the accidents that are commonly ascribed to Chance and Fortune there is such a strange and wonderful variety that nothing is acted produced or happens like another but that there is some circumstance or other that does diversifie it and make it differ When therfore cases are either wholly diverse differing though in never so small a circumstance their determinations cannot be the same h Res per se ipsa valde perniciosa est exemplis non legibus judicare cum ex levissima personarum vel locorum vel temporum varietare judicia mutentur Bodin de rep l. 6. c. 6. for diversity of Fact must needs beget a diversity of Law too and a very small Circumstance will change and alter the state of any business and require clean another Judgement than can be had from Cases that do not exactly parallel them in all things And this has made all Lawyers to agree that argumentum ductum a simili est multùm fragile infirmum nec procedit quaudo datur dissimilitudo etiam parva i â—verard Topi. loc à simili nu 12. An Argument drawn from a like case is very weak and impotent and falls to the ground when the least dissimilitude is found Fifthly since before former presidents can be made fitting rules to decide judge other cases by it is absolutely necessary that the cases should agree punctually in all such circumstances as were the prime efficient cause of such finall and definitive judgement how shall this Concordance be made evident and certain for it must either depend upon the memory and truth of a Reporter and the Judge together or else upon the safe keeping of all that was alledged and proved in the case in some Rgistry or Office and the exact search and perusal of all upon occasion neither of which is authentical and sure enough whereby to judge and condemne another man for either the report may be very easily mistaken or some leading circumstance may slip out of the Judges remembrance or some of the Records be lost or mislay'd so that a part of the Case whereupon the Judgement passed may be wanting and not rightly known Upon these and sucâ— like considerations is it that the Civil Law does so frequently express it self in disallowance of judging by president or example and directs Judges to reflect onely upon that which Truth and the Law will bear and not upon any thing that has been done by others Licet is qui provinciae praeest omnium Romae magistratuum vice officio fungi debeat non tamen spectandum est quid Romae factuÌ„ est quam quid fieri debeat sayes Proculus k L. 12. Dig. de offâ— Praesâ—a Though the provincial and inferiour Magistrate does exercise the same power and office that the Magistrates do in Rome yet he must not loook so much at what they doe in Rome though the chief and head City as what indeed and in right they ought to do Justinian also did by an express constitution made in his time command all the Judges to pursue strictly Truth Justice and the Lawes and not in judging to take their example from the most solemn sentences of the highest and most eminent Judges in the whole Empire no nor to follow such resolutions as himself should make to emergent doubts propounded unto him if he had otherwise decided them then they ought to be Non enim saith he si quid non bene dirimatur hoc in aliorum judicum vitium extendi oportet cùm non exemplis sed legibus judicandum sit l L. 13. Co. de sent inter l. omn. jud for if a case has been once determined amisse this should not spread to the corrupting of other Judges since we ought to Judge by the Lawes and not by example And therefore Gordian the Emperour makes it a strange and an unwonted thing in Rome that Judgements had between other parties should either profit or prejudice those who were neither present then in Court nor ever called Res inter alios judicatae saith he neque emolumentum afforre his qui judicio non interfuerunt neque praejudicium solent irrogare m L. 2. Co. Quibus res judic non noc Which holds not onely in civil matters but as to prejudice reaches to criminall also Juris manifestissimi sayes Dioclesian and Maximinian Emperours n L. 3. Co. Eod. in accusationibus his qui congressi in judicio non sunt officere non posse siquâ—d forte prejudicii videatur oblatum There is nothing more manifest in Law then that in criminal prosecutions a condemnation had can do no manner of hurt or hinderance to him that was not accused I therefore say as to prejudice because when Life or Honour is in Jeopardy by a criminous impeachment the Law is so carefull to preserve the same that the acquittall of one offender is an acquittall of the other also the Law being more prone to absolve then to condemne and so Vlpian answered in the case of Adultery o L. 17. Parag. 6. dig ad l. Jul. de Adulter Expectabit mulier saith he sententiam de adultero latam Si absolutus fuerit mulier per eum vincet noc ultra accusari potest Let the Woman waite the doom of the Man if he be quitted she is thereby free and can never be accused but if he be cast that does not cast her but she shall defend her selfe notwithstanding And the reason that is assigned is observeable Quid enim si adulter inimicitiis oppressus est vel falsis argumentis
by any written Law and so continued for twenty years together And so it comes to passe that new Lawes are alwaies prepared to suit with a new Government Yet upon no change whatsoever are meer rationall Lawes repealed or grow out of use The reason hereof is because men can never lose their Nature forgoe their Understanding or quit their Reason Neither can a supposition be admitted that such Laws as these can be unsuitable to any Government for what kind of Government hath been hitherto devised by Man or established in any Nation with the which naturall Equity or the dictates of right Reason has not suited Nay it should be rather concluded there may be a Tyranny but there can be no government without them Hereupon it has been that no change that ever happened in the Roman state no nor the overthrow of the State it self could take away the force or use of the Roman Civil Law but that other Nations have assumed it into their territories and have made it serviceable to their occasions and wayes of governing how various and differing soever those occasions and kindes of government have been Furthermore though Lawes with all other worldly things besides have their times to waxe old and as it were decrepite in according to that of Claudian Firmatur senium juris priscamque resumunt Caniciem leges emendanturque vetustae Acceduntque novae Yet those Lawes that are inspired by Nature Reason and pure Equity can never in any time in all places at once lose their esteem or use These are the Lawes that carry a clause of perpetuity with them they were first born with Man and can never dye before him It might well be reckoned amongst the wonders of the World that the Civil Law made so many hundred years agone and which has seen the spoil and overthrow of Rome it selfe and many other States and Empires besides should still flourish in the Europaean Nations as if it were but new sprung up but that surely the eminent wisdome and known reason that is in it hath given that Law a life as lasting as the World it selfe It hath been observed of all Arts and Sciences that there is a kind of circular progresse in them they have their birth their growth their flourishing their failing their fading and within a while after their resurrection and reflourishing again And Aristotle f 1. Decaelo 1. Meteor himself who held the Arts Eternall as he did the World yet tells us there was alwaies a rising and a falling of them as of the Starres so as sometimes they flourished in one place and age and sometimes in another as the Starres sometimes shine in our Hemisphere sometimes in the other And so it may fare with that Noble and usefull Science of the Civil Law in like manner it may be obscured and under a dark thick cloud for a while in one place or other but it can never be irrecoverably lost every where but it will still find some place to prosper in till at last it be even courted to return thither from whence it was before expel'd Lastly to shew the benefit of câ—ear and rationall Justice yet further As it is of highest advantage and benefit to a Nation to purchase the acquaintance and correspondence of other Nations abroad as well for traffique sake by exchanging their Commodities together as also to be confoederated by a league with them to be made the stronger and likewise for doing all good reciprocall offices each to other so nothing can more strongly invite forreigners frequently to resort unto to trade deal and communicate with a Nation then an assurance that in all their dealings if difference happen to arise they shall receive plain and clear justice fetcht as it were from the very bowells of Heaven and Earth and grounded upon the very same reason they bring into the Nation with them But if in stead of this fair and civil entertainment they shall be led into labyrinths of something call'd Law where they can discover no light of that reason whereof they partake as men nor yet any of those principles which in the acts of Justice are currant amongst all other civill Nations they will conclude it is not safe nor honourable to converse any longer with such a Nation but will forsake and abandon it as barbarous CHAP. VIII That Christian Nations having entertained the Civil Law into their Territories have thereby acquired to themselves the most rationall Law that hath been ordained as by the constitutions thereof will appear THus have I laid down the most excellent fruits that a Nation reaps by framing for it selfe such Lawes as are agreeable to the old and ancient grounds of Reason in Nature the Grandmother of all Law justly so styled Of the which the Nations of Christendome for these many hundreds of years have therefore very plentifully partaken because they have admitted into their Schools and Academies the Study and into their Tribunalls the use and practice of the Roman Civil Law for although all publick businesse and the generall affaires of State wherein the interest of the common welfare lyes are carried on by Laws of each Countreys own making fitted to time place persons occasion and accidents that doe happen which the Civil Law cannot be made to serve nor suit withall so various each Nations exigencies and occasions are Yet they borrow their greatest if not all their light and direction from the Civil Law in setling the contentious businesse a Omnia judicia aut distrahendarum controversiarum aut puniendorum malesiciorum causa reperta sunt Cic. pro Caecin of the Subject and the matters that arise in difference betwixt party and party their perfectest Municipall Lawes having contributed so little to wards their determination that in comparison of what they have made no provision at all in that which they have seemed to provide for is to be accounted nothing Most States employ their consideration most upon the publick welfare and upon such interests as have an universall effect upon the whole body as easiest to be seen and requiring but one and the same remedy for all But in a numerous multitude and where their transactions and dealings with one another are so various and indeed by different circumstances become infinite to suit each persons case and businesse with a proper and fitting rule to decide it is a work so void of end or bottome and past finishing that no state will set upon the enterprize to begin it especially when the Art and Science of the Civil Law has done it to their hands so excellently well and with so much wisdome pure reason and true naturall equity already The Romans who through the largenesse of their Empire and the long continuance of it had dealings with the greatest part of the World then inhabited and found out and so had beyond other Nations the greatest opportunity to see the wonderfull variety of questions and controversies that fall out between Man and Man
in their mutuall transactions when such a numberlesse number of them came before their own Judicatories they chiefly minded the regulation of such matters the Lawes that are now extant being almost wholly taken up in them and handling the publick very sparingly for of the fifty books of the Digests nine and forty do almost wholly consist of these private controversiall things They have taken up likewise all the Code saving a little of the first book of it the three last Books of all The Institutes are altogether spent herein excepting that one Title De publicis Judiciis which is the last of all Hereof Cujacius and Duarenus render this reason Ideo neglectum est jus publicum say they quod parum videretur ejus cognitie singulis esse necessaria quòd de rebus privatis frequentiores essent lites quodque rarò de jure publico interrogaretur Therefore by the Roman Laws so little was declared concerning the publick because the knowledge of such matters was so little necessary for private men and for that most suits were brought for differences betwixt one subject and another as also because little advice was asked upon that which concerned the generall welfare There is nothing therefore upon which a Controversie may be raised in our dealings with one another in this life but to cast the right where it ought to go there may be found out in the study of the Civil Law that which though it was a Law to the Romans only yet has it the force of profound pure solid reason to all other men so perfect absolute and so rational a Systeme is it of all humane affaires and dealings whatsoever Neither are we able to prize or esteeme the singular benefit that hath grown unto the world by the Roman Civil Law being still extant as the value thereof deserveth For the precepts of Nature and the rules of Natural Reason whereof it aboundeth are either such as we of our selves could not easily have found out and then the benefit is not small to have them readily set down to our hands or if they be so clear and manifest that no man indued with reason can easily be ignorant of them yet the Law as it were borrowing them from the school of Nature to prove other things lesse manifest and to induce a necessary consequence of something which were in it self more hard and dark unlesse it should in such sort be cleared the very applying of them unto cases particular is not without most singular use and profit many wayes for mens instruction Besides be they plain of themselves or obscure the evidence of so renowned a Law added unto the natural assent of reason concerning the certainty of them doth not a little authorize and confirm the same Wherefore in as much as our actions are conversant about things beset with many circumstances which cause men of sundry wits to be also of sundry judgments concerning that which ought to be done beneficial it cannot but seem that the rule of Civil Law has herein helped our infirmity whereby we do so well understand what is right and just and what otherwise Though the first principles of the Law of Nature are easie and discerned generally by all men yet concerning the duty which Natures law doth require at the hands of men in a number of things particular so far hath the natural understanding even of sundry whole Nations been darkned that they have not discerned no not grosse injustice and injury to be so Whereby it appeareth how much we are bound to admire the profound wisdome and even honour the memory of the Roman Lawgivers who have delivered such a Law to the world a Law wherein so many things are laid open cleare and manifest as a light which otherwise might have been buried in darknesse not without the hazard or rather not with the hazard but with the certain losse of the rights of many men and nations For albeit there is in the Civil Law as there is and must be in all Lawes whatsoever a very great intermixture of such things as are established by the voluntary determination and proceed from the meere will and pleasure of those that have ordained them who might limit Times Places Forms Actions Rewards punishments difference Persons might order and dispose of all Circumstances in what way and manner they pleased as the Nature Manners Government and Occasions of the Roman people most required without any respect to common and universall Reason and are therefore neither obligatory nor usefull to any other State or Nation as they were to the Roman yet there is in it a rational and natural part also which belongs unto men as men or to men as they live in politick society consisting of such common and natural notions and so abstracted from such circumstances which should change and alter it that it is alwayes permanent alike known to all men or at least to the wiser sort of men obligatory and useful every where And never was there any Humane Law that abounded so much with this as the Civil Law doth it being to be found every where about the whole Law though intermixed with that which is meerely positive proper and usefull for that State and none else or at least not fitting to be made a Rule for all people By Natural and Rational I understand that which our own natural understanding allowes as good or disallowes as evil though there were no Law to forbid the one or to prescribe the other And this was the same which St. Paul a Rom. 2.14 expresses to be the guide of the Gentiles that is of all men naturally The Gentiles which have not the Law doe by nature the things contained in the Law which shews the work of the Law written in their hearts Also that which is commonly received and practised by all men In re consensio omnium gentium lex naturae putanda est b Cicer. Tusc l. 1. what all Nations agree on is to be esteemed natural Quod mundus probat non audeo improbare sayes Baldus c Consild 4. Consil 496. I dare not question that which is generally allowed of Likewise I account that natural and rational which is necessary and behoofefull for those that lead their lives in any well-ordered state of government and without which we take away all possibility of a sociable life in the world Further that justice may well be esteemed natural and rational which is squared by and accommodated to the nature of the thing in question as it is defined and as it generally passes in the account of all or at least the most knowing men Neither do I account that only to be natural rational which was so when the first foundations of the world were laid man became in habitant thereof for then all things were common and men were not gathered into civil societies neither was there any distinction of Nations nor any Cōtracts no waging War nor leading
Principum accivitatum imperia stabiliora sunt ab injuria finitimorum tutiora cùm soci etates ac foedera sic contrabuntur ut aequabilis quaedam ex omnibus potentia existat Bodin de rep l. 5. c. 6. and by some a lawfull way of Anticipation b Sunt qui neuâ—rarum partium se esse verbo declarant re tamen faces utrisque ad bellum instimmandum clam suppedâ—â—ant ferendum illud quidem quodammodo si sua saluti aliter consulere non possint Bodin de rep lib. 5. cap. 6. Which whether it be or no it is not proper here to determine But sure I am to be regard lesse of such an over-spreading Neighbour were a token of great improvidence and stupidity And it were but needfull for the lesser States to confoederate and combine together and to make joynt preparations to oppose her in case she shall offer to molest any one of them for so active is Man by nature that where a sufficient power to hurt is present it is seldome seen that Will is wanting c Una est tenuium adversus potentiores securitatis cautio ut scilicet potentes si nocere velint non possint cùm nocendi voluntas ambitiosis hominibus imperandi cupidis nunquam sit defutura Bodin de rep lib. 5. cap. 6. Also since it is neither honourable nor advantageous for any young Prince to intermarry even with the Noblest or Richest of his own Subjects he must of necessity fit himself out of the Royal Families of other Princes here therefore they must be seen known and dealt with also Besides a free and open recourse to forreigne parts is so absolutely necessary to the very being of a Nation that we see oft-times the restraint and shutting up thereof in point of trading does so exasperate and incense a people that the whole frame is ready to be dissolved and the Subjects ready to rend one another in pieces not sparing to discharge their anger even upon the very Prince himselfe These and such like instances doe demonstrate how not only advantageous but unavoidable it is for severall and divided Kingdomes to correspond act and negotiate each with other which it is not possible for them to doe but that controversies both various and difficult and which mainly concern their severall interests even to no lesse value sometimes then whole Kingdomes will fall in that must be debated and must have some determination And when every thing else has a Law to guide it and a rule to examine and try it by insomuch as no one society or petty Common-wealth can stand without some Law the like necessity must there needs be of a Law to maintain and order the communion of Nations corresponding and acting together Si nulla est communitas quae sine jure conservari possit quod memorabili latronum exemplo probabat Aristoteles certe illa quae genus humanum aut populos complures inter se colligat jure indiget sayes d In Prolegom Grotius If there be no association which can be held up without some Law as Aristotle hoth proved by an argument drawn from that close partnership which is usually amongst Theeves and Highway-men then surely is there want of a Law to direct that grand fellowship which linkes all mankind or divers States together And again e Grot. ibid. Sicut cujusque civitatis jura utilitatem suae civitatis respiciunt ita inter civitates aut omnes aut plerasque ex consensu jura quaedam nasci potuerunt nata apparet quae utilitatem respiciciunt non coetuum singulorum sed magnae universitatis As the Laws of every particular Common-wealth are made for the benefit thereof so some certain Lawes might be and were certainly agreed upon by all or most of the Nations of the world which should conduce to the welfare not of any one people but of the great communion of all men Now the Law that guideth those transactions which are usually observed to arise between grand Societies is the Law of Nations which is most naturall and rationall in its kind too being grounded at first upon a common necessity that lay upon all Nations to have reciprocall dealings and negociations with one another which the very Nature of those several dealings and Reason it selfe dictates as necessary to be observed so that without it such communion could not long endure Under the regulation hereof comes Embassies courteous entertainment of forreigners and strangers Laws of Arms freedome of Traffique right of Contracts free passage through each others Borders Reprizalls the preserving and redemption of Captives Leagues Truces Articles and such like The strength and vertue of which Law is such that a people can with as little safety violate it by any act how advantageous soever it may seem to be to the whole Body f Qui civium rationem babendam dicum exterorum negant bi communionem societatem humani generis dirimum Cicer. as a private man can in hope to benefit himselfe infringe the Law of his Countrey Sicut civis qui jus civile perrumpit utilitatis praesentis causa id convellit quo ipsius posteritatisque suae perpetuae utilitates continentur sic populus jura naturae gentiumque violans suae quoque tranquillitatis in posterum rescindit munimenta g Grot. in Prolegom As a Subject trespassing against the Law for a present advantage brings the future happinesse of himselfe and posterity into hazard so a people that shall trample upon the Law of Nature and of Nations strips it selfe of the onely preservative of their peace and safety It is not onely lawfull but honourable for any people either to right or revenge the breach of the Law of Nations And as in the state of one Countrey any man may accuse upon a publick crime so in the state of the World any people may prosecute a common offence for as there is a civil bond among all the people of one Nation so is there a naturall knot among all men in the world which should it be once dissolved it must needs endanger the whole frame of that communion Nay of such power and praeeminence is the Law of Nations that no particular Nation can lawfully prejudice the same by any their severall Laws and Ordinances h Si Princeps velit vel jus gentium primarium vel secuâ—darium intra sui imperii limites abrogare potestate sua abuti censeudus est Barbos Collect. in c. 9. dist 1 â—n 6. more then a Man by his private resolutions the Law of the whole Common-wealth or State wherein he liveth for as a Civil Law being the act of a whole body politick doth therefore over-rule each severall part of the same body so there is no reason that any one Common-wealth of it selfe should to the prejudice of another annihilate that whereupon the whole world hath agreed for which cause the Lacedaemonians forbidding all accesse of strangers into their
Coasts are in that respect both by i Lib. 2. Cont. Appion Josephus and k Lib. 9. de sanand Graec. affect Theodoret deservedly blamed as being enemies to that hospitality which for common humanities sake all the Nations on earth should embrace And the Roman Civil Law is of singular use to teach and instruct in this Law too Grotius the Ornament of his Age and Nation for learning and wisdome undertaking in his most singular Book De juri belli Pacis to set down the severall heads of that Law which serves to direct those great transactions of Peace and Warre between Nation and Nation and to reconcile their differences professes to have borrowed towards the perfecting of that admirable worke much from the Books of the Civil Law because saith he l In Prelâ—gom Rationes saepe optimas suppeditant ad demonstrandum id quod juris est naturae eidem juri neque minus gentium juri testimonium saepe praebent They often make very clear discoveries of what is the Law of Nature and doe give frequent instances both of that and of the Law of Nations also And indeed the Law of Nations is no more then that naturall Reason which Nations doe owe and are bound to render each to other whilst they correspond and act together be it in Peace or Warre and but the very same which private men ought to practice amongst themselves in their private dealings Which moved Mr. Hobbs m Lib. de Civ cap. 14. art 4. when for illustration sake he divided the Naturall Law in naturalem hominum naturalem civitatum into that of private Men and that of Nations to adde that praecepta utriusque eadem sunt sed quia civitates semel institutae induunt proprietates hominum personales n L 76. Dig. de Judic l. 56. dig de Usufruct Populi respectu totius generis hamant privatorum loâ—â—m obtâ—nem Gâ—ot Mare lib. c. â— lex quam loquentes de hominum singulorum officio naturalem dicimus applicata totis civitatibus nationibus sive gentibus vocatur jus Gentimu The precepts of both are but one and the same but saith he because severall Common-wealths once setled are but as so many private men the same Law which in reference to single men we terme Naturall being applyed to whole States Nations and people is call'd the Law of Nations their duties being indeed both alike for what one man ought to render to another the same ought one Nation to render to another also So that although what ever we read of in the Text of the Civil Law was not intended by the Roman Legislators to reach or direct beyond the bounds of the Roman Empire neither could they prescribe any Law to other Nations which were in no subjection to them and even those Lawes that doe treat of Military matters Prisoners of Warre Embassies and such like doe but direct what Order Discipline shall be kept among their own Souldiers and how if any of them be taken by the Enemy they forfeit the right of Citizens for the time of their captivity but shall upon returne be restored and how free from being Sued or molested Embassadours that come from their own Provinces not from forreigne States to Rome should be and so all those constitutions and such like have still looked homewards and no further as o Lib 1. de jur Bell. cap. 1. Albericus Gentilis has truly observed Yet since there is such a strong stream of Natural Reason continually flowing in the Channell of the Roman Lawes and that there is no affaire or businesse known to any part of the World now which the Roman Empire dealt not in before and their Justice still provided p A Romanls ad omner populos juris faecialis totiusque justitiae fontes purissimi manarunt Bodin de rep lib. 5. cap 6. for what should hinder but that the nature of affaires being the same the same generall rule of Justice and dictates of Reason may be as fitly accommodated to forreigners dealing with one another as it is clear they have been by the Civilians of all ages as to those of one and the same Nation when one common Reason is a guide and a light to them both for it is not the Persons but the Case and the Reason therein that is considerable altogether How came the old Law given to the Jewes to be in some measure obligatory to the Christians coming so long after and to be of force still and will be as long as the World endures but because besides the ceremoniall and judiciall part thereof which was observable by the Jewes onely and is now abrogated in as much as it had but a temporary cause of Gods ordaining it there was also a Naturall and a Morall part incorporated in it which all Nations and Men are bound to fulfill and keep and can never cease Haec pars legis vivit sayes q De Legib lib. 9. cap. 11. nu 22. Suarez non tamen quia legis Moysis pars sed quia naturae lex est novae legis pars vivetque in sempiternum This part of the Law remains in force but not because it was a part of Moses his Law but because it was given first by Nature and the new Law has since confirmed it and the authority thereof shall remaine for ever So and in like manner there is in the Roman Civil Law a circumstantiall and a positive part which was a Law to the Romans and by them to be obeyed but neither of force or use to others being made for that people climate and government onely But there is in it too a Law whereunto by the light of Reason men find themselves bound in that they are Men a Law by composition for multitudes and politick societies of Men to be guided by a Law that may be applyed to the communion and fellowship of all Mankind or divers Nations linked in amity and friendship together and this part of the Law is naturall perpetuall belonging not to the Romans onely but to all Nations and Men neither can it have any cause of change when that which gave it its first institution remaineth for ever one and the same Yet as the Civil Law is Roman it is of no validity but as it is naturall only for as it was Roman it extended not beyond the bounds of the Roman Empire nor did it take care for any other People or Nation but the Roman onely nor could the commanding power thereof endure longer then the Empire it selfe lasted But when it treats and discusses such matters as are common to all mankind and not onely the Roman Nation did but all Nations and People doe still deal in as of contracts of all kindes both at Land and at Sea dispositions testamentary successions in deceaseds Estates where no Will is made good offices done at anothers charge or detriment of the relations between Father and Son Husband and Wife Master and
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
that they were the words of truth that it would never condemn upon any such confession except the party accused being redeemed from his pain and in his full liberty did again confess the very same thing nor then neither if that which was confessed were more probable to be false then true Lastly the Judge that examined him in such extremities was directed to bear himself so cautiously e l. 1. parag 21. Dig. cod ut non suggerere interregato sed ab eo potius veritatem requirere videatur that the truth should rather come freely from himself then any thing should be suggested to him He was also diligently to mind with what voice he spake high or low how freely such confession fell from him or whether it came with reluctancy and to enquire what his credit and condition of life had been in the place where he lived Plurimum in excutienda veritate says f l. 10. parag 5. De cod Arcadius etiam vox ipsa cognitionis subtilis diligentia affert Nam ex sermone ex eo qua quis constantia qua trepidatione quid diceret vel cujus existimationis quisque in civitate sua est quaedam ad illuminandam veritatem in lucem emergunt These were the cautions which the Roman State did prescribe to be used in this sharp but as their policy stood who did not love upon a slender proof to take away the lives of their people very necessary course of trial by torture which peaceable and just men could not be offended with because it was to g Quippe eùm ne â—e quidem inter tot cruces supplicia sontium satis tuta fit innocenâ— tia sayes Grotius de jur Bell. lib. 2. ca. 20. nu 12. defend and secure them from the rage and the rapine of vile men And if evil men did groan under that severity they had their desert and might h Damnum quod quis sua culpa sentit sibi debet non altis imputare Reg. 86. De reg jur in 6. thank themselves And though it might possibly howbeit very rarely happen that some innocent man might wrongfully suffer sometimes under that trial yet what so perfect or exact a trial can there be devised or thought of under which that rare accident may not also be for when we have done all that we can yet we can still but judge as Men. In defence whereof I have therefore taken the liberty to insist the longer because once at a publick solemn meeting where the keeping up of this Profession came to be considered of I took notice that this small part of the Civil Law was enforced by a worthy Gentleman quem honoris causa non nomino as a main objection upon which he would have that whole Law to be quite laid aside by which rule I know not what Law there is or ever was that would stand and for this reason also to shew how wise and rational that Law is even in that which those that do not fully understand it would so much condemn it for and how easily in all other matters it may be defended if so well maintain'd in this To go on therefore in pursuit of my first design The Civil Law will have rigour alwayes give place to equity Placuit in omnibus rebus praecipuam esse justitiae aequitatisque quà m stricti juris rationem i l. 8. Co de Judic sayes the Law It is enacted that in all things there ought to be a greater consideration of right and equity then of strict and exact rule For if every case when circumstances be clean different should be measured by one and the same rule sub authoritate juris scientiae perniciosè aliquando erraretur sayes Paulus k l si ser vum dig de verb. cblig parag 3. Under pretence of observing Law we may at one time or other fall into dangerous errour If a man leaves goods in my hands to keep for him the Law doth strictly enjoyn me to restore them when they are demanded l l. Tot Tit dig Depos But if afterwards this mans goods shall be confiscate as being condemn'd for some capital crime or if it appears that these goods were stollen and that the true owner comes to claim them I should erre injuriously to keep my self to the strict rule of restoring the goods precisely from whence I had them and not to deliver them up to the State or to return them to the true and just owner Haec est bona fides sayes Tryphor inus m l. 31. dig Depos parag 1. ut commissam rem recipiat is qui dedit Sed si totius rei aequitatem quae ex omnibus personis quae negecio isto continguntur impletur mihi reddenda sunt à quo facto scelestissimo adempta sunt Et probo hanc esse justitiam quae suum cuique ita tribuit ut non distrahatur ab ullius justiore repetitione It is honesty to return the goods to him that left them with me But if the equity of the whole case be considered and the persons that are concerned in it they are better returned to him from whom they were unjustly taken I allow that justice sayes he which does so render back to every one his own as that thereby no injury is done to another who has a better right therein And from this equity is it that several wayes and means are ordained of restoring men to their first state and condition from whence in strictness of Law they are fallen For if a man through threats or any crafty practice of another or by his want of full age or by his being not present or through some slâ—p or errour which a wiser then he might have committed be fallen into some great mischief equity in such cases will relieve him against the Law n Tot Tit. Dig. de in integ rest Hence is it that the Law appoints the Judge aequitatem semper ante oculos habere o l. 4. parag 1. Dig de eo quod cert loc to have equity before his eyes and that upon the entrance into his office he shall take an oath quòd in judicando velit aequitatem sequi p Nevell 8. that he will judge according to equity and that all bargains are to be interpreted by equity q l. 81. Dig. Pro socio Also sometimes we may depart from the very nature of the contract and the very words of the will to follow equity r Bronch l. 90. Dig de reg jur Also solemnities and formes of Law though they ought to be most carefully observed because they are ordained as rules for all cases yet upon the ground of manifest equity there may be a deviation from them too Etsi nihil facile mutandum est ex solennibus tamen ubi aequitas evidens poscit subveniendum est Å¿ l. 7. Dig. de in integr rest And yet will not the Law allow of the
relief of equity in any case which is specially even with all its circumstances settled by Law how rigorous soever the determination of the Law be for written rigour shall be preferr'd before unwritten equity t l. 12. parag 1 Dig Qui à quib man Vetantis legit major est potestas quà m aequitatis câ—jus speciem obâ—endere suae cupiditati cuique liceret Bodin de repâ— lib. 1. ca. 8. Clementiores lege judices esse non oportet Judges ought not to be merciful above that that the Law it self is But it lets in equity where the Law is general and the case in fact is accompanied with such special circumstances that in all likelihood the Law never took it into consideration which if it had it would and must have made an exception in that case For as Aristotle sayes aequitas nihil aliud est quà m supplementum ejus quod lex praetermisit equity is no more then a providing specially for that which the Law is silent in Neither does it allow of a wandering imaginary or unrestrained equity but what is either written and authentick from the Law it self or what is manifest and evident to wise rational and the best discerning men I mean those that are skill'd and well studied in the Civil Law and not your vulgar rational men by deductions and reasonings from the Law given in the like cases Non possunt omnes articuli sigillatim aut legibus aut senatusconsultis comprehendi sed cùm in aliqua causa sententia eorum manifesta est is qui jurisdictioni praeest ad similia precedere atque ita jus dicere debet Laws and decrees cannot hit every circumstance but when their determination is certain in any one case by that the Judge may do right in other cases that are like it u l. 12. Dig. De Legib. As it treats the living with all gentleness and equity so it extends its humanity and tender consideration to the dead too and is indulgent to those that lie in their very graves And therefore it will have the heirs and executors of a deceased person to be so free to bury the dead and to pay all such funeral respects as are due that it will not suffer any action to be brought or any demand to be made of any thing that was owing by him that is dead by the space of nine dayes x Novell 115. ca. 5. Nor can any legal process be served upon those that are accompanying the corps to burial y l. 2. 3. Dig. De in jus vocand And so far is it from conniving at the barbarous inhumanity of those that for money owing by the deceased will arrest and stay the body from burial till payment made or full security given that it inflicts a sharp punishment upon such transgressours for they do not onely quite lose that which they labour to recover by so foul an action but also forfeit as much in value to the deceaseds heirs and a third part of their estate is confiscate and they make themselves infamous z Ut defunct seu funer cor non injur ca. 5. And if there be such a custome which I have heard is pretended to by some-parishes within this Nation and practised also that when a dead corps is carried through towards some further place of burial it may be staied upon the way and not suffered to proceed till some fee or toll be paid it is such a custome which the Civil Law is against For that Law expresly provides ne corpora aut ossa mortuorum detinerentur aut vexarentur neve prohiberentur quo minus via publica transferrentur aut quò minus sepelirentur that the bodies and bones of the dead be not staied or troubled nor that any restraint be to hinder their passage along the high-way to and fro or to obstruct their burial a l. 38. Dig. de Mortu Infer And generally without exception either of place or person sayes directly that no such see or toll shall be paid b Graec. Cod. de relig sumpt fun l. 15. In nullo quopiam loco vectigal ab aliqua persona pro corporibus ex uno loco in alium translatis praestetur No fee shall be paid by any person in any place for the removing of a corps from one place to another And surely if the first ground from whence that custome came were known we should be willing for Religion sake to lay it down For our superstitious ancestours believing that the prayers of the living were useful to the souls of the dead were wont as often as they carried forth any dead body to be buried to stay in every convenient Town through which they went to receive the prayers of the devout people for the soul of their deceased Brother In recompence whereof it is probable that something was in charity bestowed for the poor of that place or to some other end Which at first proceeding from bounty we have no cause to turn it into a duty especially to pass an indignity upon the dead and when we bestow not the prayers as they did nor indeed can think them profitable as they applied them Neither is the Law so careful to conduct the dead quietly to their graves as it is severe in punishing those that shall disturb their bodies there or shall demolish or deface their sepulchres The place where the dead body lies is esteemed Religious and the injury done to the body it self or to the monument thereof is accounted no less then sacriledge x l Co. De sepulch viol If it be done riotously and with Armes the crime is capital if without it is to be considered whether the body be pull'd out of the grave and then it is capital to those of the meaner sort but others of better rank are banished or condemned to work in the Mines But if the sepulchre be onely demolished or defaced a penalty is paid to the Exchequer and good reparation given to the next heirs and divers other punishments besides inflicted y Tot. Tit. Dig. Cod. de sepulch viol Nay though the body be interr'd in another mans private ground though it does not allow of the act but will order the body to be removed or the value thereof to be paid to the owner of the soyl yet it will not suffer the owner of the ground of his own head to unbury or take away the body propter reverentiam manium quia corpus sepultum non est inquietandum for the honour due to the Ghosts of the dead and because dead men once interr'd ought not to be disturb'd but either the Prince or the chief Priest must give authority or warrant for the same z l 8.39 Dig. de relig sumpt fuâ— Finally the debt contracted by the deceased in the time of his sickness or about his burial shall be paid before all other debts whatsoever a l. pen. Dig. de relig sumpt fund 3. Co
eod In all its constitutions it opposeth and setteth it self against the oppression of great ones and hateth that wrong that comes from the potency or greatness of any person If a person of honour shall forcibly carry away a Virgin or invade the possession of another he shall be tried by the ordinary Judge of the place where he offendeth and not be allowed any higher or more noble Judge which else he may claim to have for omnem hujusmodi honorem reatus excludit sayes the Text of the Law b l. Co. Ubi senato vel clariss His guilt renders him uncapable of any such Honourable Priviledge Neque honos ei servatur qui se in tantum scelus deduxit c l. 47. Dig. de ritu nupt Honour is no protection for him that hath stained it with such an odious crime It will not allow persons of great power or high place to interest themselves in the controversies or litigious estates of others neither by solliciting them in Court nor having their names used to countenance them ne tenuiores importunis potentium intercessionibus opprimantur sayes the Text d l. 1. Co. Ne liciat potent patrocin that is lest might should bear down and be too hard for right Nay it will not admit either the publick Exchequer or the Common-wealth upon any pretence of debt gift or assignment to them made to lend their name or patronage for the asserting of others rights e Tot. Tit. Co. Ne fiscus vel resp proturation Ne inde injuriarum nascatur occasio unde jura nascuntur f l. 6. Co. unde vi that is lest they that should do most right should be the occasion of doing the greatest wrong And it is remarkable how disdaining the expressions of the Law are in that particular and yet but such as upon the like occasion are frequent and common in the Law every where Petition being made to Gordian the Emperour that he would suffer it his answer was Contra juris rationem desider as g l. 1. Co. Ne fiscus vel resp The request was opposite to right reason The same Emperour being asked again the same thing said Hoc temporum meorum disciplina non patitur Vnde jus tuum si quod tibi competit citra invidiam fisci mei tueri solenniter cura h l. 2. Co. eod that is it agrees not with my fashion or government so to do If therefore you have a right prosecute it in your own name without drawing into odium my Exchequer The Emperours Dioclesian and Maximilian to the same thing peremptorily say Abhorret à seculo nostro i l. 3. Co. eod It was a thing that he and all of his time abhorred And again k l. 4. Co. eod that it was contra seculi sui tranquillitatem It would be an inlet to a general distemper to permit it It will not endure any fraudulent fallacious or deceitful dealing l Tot. Tit. Dig. Co. de Dol. mal If a man does wilfully alien to defraud his adversary his act is vain for in the eye of the Law he is taken to be in possession still Qui dolo desierit possidere pro possidente damnatur quia pro possessione dolus est m l. 131. Dig. de reg jur Especially it hates deceit most in those whom it is most forward to relieve when they are deceived The Civil Law allows not a woman a capacity to be surety or to be bound for others though she might contract for her self propter inbecillitatem sexus being prone to be drawn in and to be wrought upon n Tot. Tit. Dig. ad S. C. Vellcian Which restraint did bind her from being bound for her own husband o l. 2. Dig. eod But if when she knows her priviledge and will cunningly dissemble it and offer to be bound notwithstanding and the creditor is such a one as may be justly ignorant of the Law in that particular or if she presents herself in mans apparel the Law will not relieve her but she remains subject to action For ita demum mulieribus subvenitur si non callidè sint versatae Infirmitas foeminarum non calliditas auxilium meruit p d. l. 2. parag 3. It is their ignorance and weakness that the Law favours and not their craft and subtilty So no act is binding to him that is under age q Tot. Tit. Dig. de minor But if he shall fallaci majoris aetatis mendacio aliquem decipere say and pretend to him that deals with him that he is of full age when he is not in that case he stands obliged and is remediless Nam errantibus non fallentibus publica jura subveniunt r l. 2. Co. si min. se major dixer It is errour and imprudence and not fraud that the Law will succour Ingratitude is so odious in the Civil Law that if a slave that has been manumised shall bear himself unthankful towards his Master or if a son shall recompence the benefit of being quit of his fathers power and command with some injurious act or office against his father they may both for their ingratitude be brought into their former yoke again ſ Welenb Parat Dig de obsequ parent patron praestand And generally if I have out of my free bounty bestowed any thing upon another if he shall attempt to betray my life or estate to mischief or pass upon me any weighty injury I need not suffer my bounty to remain with so unworthy a person but may recall it again from him t l. 10. Co. De revocand Donat. Cùm magis in eos collata liberalitas ad obsequium eos inclinare deberet quà m ad insolentiam erigere u l. 1. Co. eod Since bounty to ought to invite men to be rather obsequious then insolent Howbeit my heir if I die shall not sue to recovet it Etenim si ipse qui hoc passus est tacuerit silentium ejus maneat semper sayes the Law x d. l. 10. If I against whom the ingratitude was committed did not complain let it be buried in silence for ever The elegance wherewith it has expressed its detestation and severity against the odious and unnatural sin of men carnally mixing with one another is very remarkable Cùm vir nubit in foeminam viris porrecturam quid cupiatur ubi sexus perdidit locum ubi scelus est id quod non proficit scire Vbi Venus mutatur in alteram formam Vbi amor quaeritur nec videtur Jubemus insurgere leges armari jura gladio ultore ut exquisitis poenis subdantur infames qui sunt vel futuri sunt rei y l. 31. Co. ad l. Jul. de Adult The state and quality of the matter requires me not to translate the words though most elegant The order that the Civil Law has setled for the sharing of a mans estate who dies intestate is very
e Siâ—hard in Rubr. Co. de compensat Yet it will not suffer me to plead a debt against him that has put into my hands a summe of money in trust to keep for him because my faithfulness and truth was here relied upon nor against the Exchequer that demands tribute or custome for that the safety of the people is therein concerned f Parag. 30. Inst de act l. 3. Co. de compensat The Romans did so throughly see the necessity that lay upon men to perform mutual offices and kindnesses each to other that to encourage men the more to pay these reciprocal duties so necessary to each others common being the scope of their Laws tended to secure all men from sustaining any prejudice by being officious or active for the benefit of other men If therefore in my friends absence I expend money or contract a debt upon my self to accommodate and improve his business though I did it without his privity or knowledge the Civil Law will see all that I have laid out shall be restored me and will compell him to save me harmless where either I have or can possibly suffer detriment for his sake For sicut aequum est sayes Gaius negociorum gestorem actus sui rationem reddere eo nomine condemnari quicquid vel non ut oportuit gessit vel ex his negociis retinet ita ex diverso justum est si utiliter gessit praestari ei quicquid eo nominâ— vel abest ei vel abfuturum est g l. 1. Dig. de negoâ— gest As it is but fitting when I undertake to act in another mans business I should give an account for what I do and answer for any thing I have done amiss therein and render unto him such profits as his affairs and goods have yeelded So on the otherside it is but just where I have served him with success and advantage that there he should reimburse me all that I have usefully expended and free me of all present and future prejudice whatsoever Hence is it that if I pay another mans debt with my own money or free from captivity anothers son or such neer kinsman whom nature would oblige him to redeem or if being a Physitian I attend and prosecute the cure and recovery of anothers servant that is sick or wounded in none of these cases will the Law suffer me to be a loser in any measure for what cost I have been at or whatsoever I have disbursed shall be allowed me Iniquum est sayes Gaius officium suum alicui esse damnosum h l. 7 Dig. Testam quemadm aper It is unreasonable that a man for his courtesie and goodness should reap a prejudice Upon the equity hereof is that proceeding in the Admiralty Court clearly justified whereby if a Ship being set upon by Pyrats or by enenemies shall be rescued by anothers Sâ—ip seasonably coming in to her rescue it charges the Ship that is thus redeemed with salvage money to the other that did so endanger herself to preserve her that recompence being but in lieu of all dammages thereby sustained and for future encouragement to other to fight in the defence of those that they see assailed hereafter Upon the same equity is it that when a Ship is in danger to be cast away through a raging tempest if to lighten the Ship some of the heaviest goods belonging to others be thrown overboard and thereby the Ship and the rest of the goods comes safe home the loss is made common and reparable by the whole AEquissimum enim est sayes Paulus commune detrimentum fieri eorum qui propter amissas res aliorum consecuti sunt ut merces suas salvas haberent i l 2. Dig Ad leg Rhod. It is most equitable that their wares should joyn to make up that loss which was the onely means whereby they were preserved In like manner though goods taken at Sea by Pyrats from the true owners may be challenged and regained from any hands where ever they shall be found and met with though it is otherwise in goods taken by an enemy in a just and open war yet if a man shall expend his own money to redeem them out of the Pyrats hands not for his own use or to make a good bargain for himself but with an intent to bring them home to their true owner in this case if the owner will have them he must first lay dawn the purchase money k l. 6. Dig. de Captiv postlim revers l. 2. parag 3. Dig. ad leg Rhod. Nay sometimes the Law will enjoyn a man to pay for that which he had got before For if three be taken prisoners in war and one be permitted to go home to procure mony to pay for the ransoming of them all a condition added that if he that is let go returns not the two that are left behind shall stand ingaged for his ransome as well as for their own in this case what money soever they lay down for him he is bound to repay them though he had gotten his liberty before l l. 21. Dig. de Negoe gest For the Law will not suffer a man to be damnified by any act which is done usefully in contemplation of another And herein the Law does not so much look upon the success or sequel as the good will and probable undertaking And therefore if I should fence or cast a wall about another mans Island to keep it from overflowing and it is overflown notwithstanding or if I bestow paines and cost to cure another mans child or servant and he dies yet the Law will see me satisfied Nam sufficit si utiliter gessi etsi effectum non habuit negocium sayes Vlpian m l. 10. Dig. deâ—negoc gest It is sufficient that I did what was to be done though the intended effect did not ensue But here some caution and wariness must be used For he that thus acteth for another must be sure that he does no more then he that he acteth for would have done for himself neither must he expend any more then is profitable and necessary and he can bear n l. 10. parag 1. Dig eod Also he must not act after any countermand be once sent him or that he be once bidden to desist o l uls Co. eod For in neither of these cases will the Law help him Further if he be a father or other of most near relation that deals for the benefit in the concernments of such an one as the Law may possibly presume he does it rather to testifie his natural affection towards him then to demand any thing of him for the same I say if there be any such proximity or nearness and yet an eye to to future satisfaction he must declare and make protestation that it is done with that intent and not donandi animo not out of any mind to bestow it freely but to be allowed for
just rational and honest Laws do deserve to make their memory still famous amongst men because so much use has been made thereof ever since in the governing of so many States Empires and people And well did some of the ancient Fathers of the Church as also some of our later Divines observe that without doubt God did therefore indue the Romans with such admirable skill in government and Law making that after Nations might have a good example to follow It is St Austins judgment i Lib. 5. De civitat Dei ca. 6. That the Roman Empire had that glorious increase not onely to be a fit guerdon to the vertues of such as bore rule there but also that the Citizens of heaven in their pilgrimages upon earth might seriously attentively fix their eyes upon those examples And before him Tully as Lud. Vives hath cited him k Lib. de caus corrupt art being to draw a Model of a Common-wealth and Laws to govern it withall setâ— before his eyes no other pattern but that of the Romans to which in his judgment all people should in prudence shape and conform themselves And that our Saviour Christ himself God Almighty from all eternity so disposing it should be born under the government of the Roman Empire and submit to it too may it not more then probably be inferred that it was Gods secret intent and purpose if not to bring all Christians under subjection to those very Laws under which their head was born and lived yet at least by that signal act of his to recommend that policy and government to their imitation which might be a means to propagate the Gospel of Christ to send it forth to the whole world which that Empire seemed wholly to command St Austin l Lib. 18. de civit Dei ca. 22. makes the Universal rule of the Romans a special design of God for the good of mankind Per populum Romanum placuit Deo terrarum orbem debellare ut in unam societatem reipublicae legumque perductum longè lateque pacaret It was therefore saith he Gods pleasure that the Romans should conquer and command the whole earth that being brought under one communion of government and form of Laws it might the better enjoy peace both far and wide Videtur Dominus Monarchiam Romanorum conservasse propagasse at simul propagaretur honesta corum Politia reprimeretur incondita barbaries aliarum gentium sayes Baldwine m In his Prolegom Therefore was the Roman Empire by Gods permission so far extended that their good government might spread the more and the conversation of barbarous and wild Nations be made civil And indeed the continuance of it in such diversity of governments as Kings Consuls Tribunes Dictators Emperours cannot but shew a Divine power and a most prudent managery of affairs there in all vicissitudes For otherwise so many changes might in all likelihood have bred confusion and so consequently suppressed their rising to so great an Empire which as the last so it may be truly stiled the greatest that yet the world ever know or heard of Thus therefore the Roman Empire having climb'd up to such an height of Soveraignty as to be a spectacle an astonishment to all other Nations n Romanitrium pulcberrimarum virâ—utum justiâ—iae inquam fortitudinâ—â— as prudentiae laudibus imperatoriisque artibus cumulati populos omnes in sui admirationem converterum Bodin de rep lib. 5. ca. 6. and their government being generally proposed and look'd upon as a pattern and by some judgments designed as an example by God himself for other States to follow and be directed by What does it witness less then that the Laws of such a Nation and government must needs be singular and incomparable CHAP. II. The fundamentals of the Roman Civil Law were fetch'd from other States which did then excel others most in Policy and Government THe first grounds and foundations of the Civil Law were not of the Romans own composing but were fetch'd from other Nations and those the best governed that were in being for when they had cast off Kingly government and put themselves into the form of a Common wealth they would no longer endure the Laws that their Kings had made partly because they would not suffer any memory of their power to remaine and partly because the setting up of a new government would require necessarily the making also of new Laws which might correspond therewith Therefore since a present supply of Laws was necessary arbitrary rule being intolerable and that to frame a body of Laws themselves in a short time was impossible and not by a new-born State to be effected they appointed three eminent men to go to Athens and other Graecian Cities which had been famous for rule and administration of justice above others to fetch from thence the choicest Laws they could find At the return of those three men the Consuls that had bore the sway were deposed and both their Authority and Ensigne given unto ten men newly elected for the government of the State and were thence called Decemviri whose office it was to select the best of these Laws and by them precisely to rule and do justice to all the people The Laws that they chose and best approved of were written at first in ten Tables of Brass to which two Tables more being added afterwards they were all set up together in the open Market-place to be seen and read by the people which ever after were distinguished by the name of Leges 12 Tabularum The Laws of the 12 Tables To the direction of these Laws the Roman people were subject and conformed themselves for a long time and they were the onely Law they had Of the which Tully o Lib. 1. De Oraâ— gives this high testimony that this one book of these Laws both for usefulness and wisdome did transcend all the books that all the Philosophers of the world had written And although their engravement in brass could not preserve them from the injury of time nor rescue them from that universal change that altered all things in the Roman Empire whereby it came to pass that some reliques onely of them are now extant to the lamentation of all the learned Yet the Historians without any disagreeing tell us that the rise and beginning of all the Civil Law that we have in the books of Justinian came from those Laws Thus Livie Tacitus Sigonius and Rosinus And no less is delivered by Pomponius himself in his large Narrative of the beginning and progress of the Civil Law p l. 2. Dig. De orig jur and as much by Justinian himself q Parag. 10. Inst de ju nat gent. civ And hence it is that every where throughout the Body of the Civil Law frequent and common mention is made of the Laws of the 12 Tables and several of them entirely recited and some of them confirmed and enlarged others quite taken away
some of them diminished onely as to some circumstances others interpreted as being very obscure and doubtful some declared in what cases they shall be of force and in what not and others stretch'd to other cases not provided for in express words but in presumption thereby intended because so much alike to them that were expressed It was a Law of the 12 Tables Vt si quis hostem concitasset civemve hosti tradidisset capite poenas lueret r Part. 2. ca. 8. that is if any shall stir up an enemy or betray to the enemy any subject he shall be punished with death The same Law is cited in l. 3. Dig. Ad l. Jul. Majest where and in other Law of that Title it is declared it shall be high treason for any man to contrive any mischief against the State either in raising tumults or levying war against the supreme power of it or even against the enemies of it with out commission or in holding correspondence with the enemy or sending any manner of aid unto them or in helping to bring them into the Territories of the Common-wealth or to betray the army or any part thereof or any place of strength into the enemies hand or indeed to surrender it cowardly without fighting when it may be kept or to plot how publick hostages may escape or for a General to leave the army without leave obtained or not to give up his charge to him that by publick appointment is to succeed him after the State has once discharged him The punishment whereof is not onely capital but the memory and name of the offender is to be remembred no more his goods are confiscated and not to go to his own children s L. 5 Co. ed l. Iul. Maject parag 1. Again by the Law of the 12 Tables it was provided first that the custody of such as were mad and the managing of their estate should be in the hands of the next heir male Also if any one come to be a prodigal or spend-thrift the Magistrate first examining the matter should forbid him the ordering of his own estate and the administration there of should be in the next heir male t Part. 3. ca. 5 6. The last of which laws may be found single in l. 1. Dig. De curator furios and both of them joyned together Inst De curator-parag 3. Where the care of the Law in providing governours for those that are not able to help themselves nor follow their affairs is extended to Idiots to persons that are deaf and dumb and to such as labour under such an incurable disease as is never like to leave them and renders them unfit to attend their business as well as to mad men prodigals declaring him to be a prodigal Qui neque tempus neque finem expensarum habet sed bona sua dilacerando dissipando profundit who wastes without regard either of time or measure a mad man qui rabie quadam animi agitur who is in a violeut fury an idiot qui sine tumultu ac clamoribus desipit who is void of understanding but never rages And further the Law proceedeth in avoiding and disanulling all contracts negotiations and dealings which such persons shall have made for themselves after Guardians are once assigned them yet with this difference that a Prodigal or such as have common reason though otherwise very impotent and needing a curator may contract to advantage themselves though not to their loss and hinderance But such as want capacitie and understanding can do no good for themselves u L. 6. Dig. De verb oblig l. 5. Dig-de reg jur And although the Law of the 12 Tables seems to bestow upon the Guardian of such disabled persons absolute power over their estates yet the Civil Law will have that understood to reach no further then to the husbanding of their estates for their use and benefit for it will not permit them to sell aliene or mortgage any thing that does belong unto them except that upon examination of the Magistrate it be found advantageable and fit to be done and that the Magistrate does expresly make his decree to that purpose Insomuch as if money be taken up by the Guardian for the need and to the use of any such person and his land mortgaged for payment of it yet if it be not done by the license of the Magistrate the serving of that impotent mans necessity how extreme soever will not make that mortgage the more forcible such care has the Law to preserve the patrimony of such from being pass'd away Yet since the money lent was so well imployed the Law that suffers no man to be enriched with anothers detriment gives the lender a personal action whereby to recover what he lent x L. 2. Co. de curat furioâ— Lastly does the Civil Law afford more plentiful provision on any subject then that of last Wills and Testaments Yet the first rise and foundation of all that is written therein came first from that Law of the 12 Tables Vti quisque rei sui legasset ita jus esto y Part. 3. ca. 11. that is As a man shall order by his will in any thing that is his own so let it be The very words of which Law are repeated Inst De leg Falcid in princ and l. 120. Dig. De verb. signific But the questions falling under this head do not onely take up whole titles in the Law and those very large ones too but also many of them lie dispersed up and down in all places and parts of the Laws So that generally it may be observed what Laws soever are written almost on any subject are but as so many explanations or enlargements made by the old primitive Lawyers such as Gaius Scaevola Papinian Vlpian Paulus Affrican and the rest of those Worthies and are as it were their Comments on the Law of Nature and of Nations and upon this Law of the 12 Tables at first a forreign Law but brought into the Roman Common-wealth by a common consent of all the people from such Nations as for rule and government might justly be an example to all their neighbours In like manner the Sea Laws that were admitted into the Roman State and incorporated amongst their Laws were fetch'd from another people namely the people of Rhodes Islanders in the Carpathian Sea bordering upon Caria in Asia who in respect of the mighty concourse of seafaring-men thither and their continual trade and potency by Sea grew so expert in the regulation of all matters and differences thereto appertaining and their determinations therein were esteemed so just and equitable that their Laws in such affairs have been held oracles ever since And therefore Antoninus the Emperour to a complaint that was made unto him by Eudaemon whose goods had been seized by some publick officers upon a shipwrack gave him this answer Ego quidem Mundi Dominus lex autem Maris Lege id Rhodia quae
power being themselves not bound to any Laws or Customes at all And that is it for which Pomponius b L. 2. Dig. De Orig. jur in print writeth the Roman Common-weal to have been at the first governed by Regal power without use of any Laws Justin c Lib. 2. saith of Athens that there was a time when Nullae civitati leges erant quia libido Regum pro legibus habebatur that the City was without Law because the wills of Kings were Laws And Josephus the Historiographer in his second Book against Appian desirous to shew the most honourable Antiquity of the Hebrews and of their Laws saith that Moses of all others was the first that ever writ Laws and that in five hundred years after the word Law was never heard of alledging in proof thereof that Homer in so many books as were by him written never useth this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Law d Bodin de rep lib. 6. ca. 6. It may therefore well be told us that we have no cause to marvail if we have no Laws at all transmitted unto us from those first times there being then no certain standing Law any where Yet I am sure afterwards when all people saw that to live by one mans will became the cause of all mens misery this did necessitate succeeding ages to come unto Laws established wherein all men might see their duties before-hand and know the penalties of transgressing them e Ut bonesterum ac turpium lex aeterna in memibus unjuscujusque nostrum ab immortali Deo sit inscripta poenae tamen quibus improbi ab injuriosa facinorosaque vita avocentur in animis inscript◠à Deo nullae fuerunt Bodin de rep lib. 6. ca. 6. and be more secure against the irregular passions of their Rulers whom they found by woful experience to be too apt to degenerate into Tyranny And yet they have not rested here neither but have committed the same to writing that their subjects might have them continually before their eyes and to transmit them to posterity also lest they that should come after should vary from those foundations on which the State was first laid and so hasten the downfall of the whole society Hence it has come to pass that the Laws of some certain people have been more famous then the Laws of others and the Authours mentioned with high praise and commendation Solon who made Laws for the Athenians and was accounted one of the seven Sages in Greece is highly commended for his great wisdome in making Laws both by Aristotle and Plato who proposeth him and Lycurgus the Lacedaemonian Law-giver as patterns for all such as shall institute Common-wealths and devise Laws for them Plato also prayseth the Cretensian Laws and Isocrates the Laws of Lacedaemon Zaleucus is upon record too for being a great Law-giver amongst the Locrians and Charondas has got himself a name for the Laws the Thurians had from him And so has Zamolxis Pythagoras his scholar for the Laws he gave the Getae And yet of all these Laws so much extolled and spoken of amongst the Learned there is not one extant to this day in any entire body I say in an entire body because of the Attick Law some fragments may be found which the industry of Petitus has collected out of several Greek Authours as Athenaeus Plato Plutarch Demosthenes and others where they lay dispersed which though they may busie Criticks and those that contemplate upon Antiquity yet are of no use to govern a State by nor to decide differences that arise in common intercourse As it is no small wonder then so does it adde much to the Honour of the Roman Civil Law that it has not been swept away by that common fate under which these and all other ancient Laws have perished but is the sole surviving Law at this time The preservation whereof is the more to be admired if it be considered how by the stormes and persecutions of several ages near it has been to be annihilated and quite supprest as all other Laws besides it have been For as the affairs of State have succeeded and as the Emperours themselves have been vertuously or vitiously inclined so has it fared with this study and the professours of it and indeed after the same manner with all other kind of learning Julius Caesar Augustus Tiberius Claudius Vespasian Trajan Adrian Antonius Pius and Marcus Antoninus the Philosopher Alexander Severus Constantine Theodosius and Justinian that were Emperours vigilant and industrious for the prosperity and weale of the Empire and designed nothing within themselves but actions of vertue and honour well knowing that their true interest lay in the maintaining of the Laws and government without which all things must needs run hastily into disorder and confusion they had the Lawyers of their times in highest esteem preferring them to the publick offices of State both of honour and justice and admitting them into their secretest and most important counsels and seldome was any Law made to which they were not call'd to give their counsel and advise Insomuch as it is written of Alexander Severus one of the before named Emperours that he never established any Law without the presence and assistance of twenty of the most renowned Lawyers and fifty other most judicious and acute men a Baldwin Prolegom ju Givil Forster bist ju civ lib. 2. ca. 77. But there were others that sate in the Empire of a far different nature and disposition who disdaining that their will how vitious and lewd soever should be circumscribed within the bounds of any Law and esteeming it a dishonour that Lawyers who were but private men should undertake to advise Princes or that any thing should be done in State but what themselves absolutely commanded some of them despised the whole Law and slighted those that taught it others proceeded so far in cruelty as to banish some and to put other Lawyers to death for so did Nero Commodus Caracalla Heliogabalus Septimius Severus But to persecute and take away their persons did not satisfie the fury of some implacable Emperours since others did succeed still in their room Therefore it was thought necessary by some that the Law it self should be so dispatch'd as it might be sure it should never renew or rise again b Annae Robert rer judic lib. 2. ca. 1. Caligula therefore put on a more hardy but a most barbarous resolution to burn all the books of the Law that were then extant pretending that equity would run clearer and justice be quicker where the niceties and perplexities of the Law were gone Sed non fuit tam diuturnum ejus imperium ut efficere potuerit quae meditabatur nec passus est Deus rata esse hujus tyranni impia reipublicae perniciosa consilia But his reign did not endure so long as to execute what he did intend neither would God suffer the design of this tyrant that was so
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
extend FRom what has been cited out of Mr Selden it does appear that there is as much granted by Mr Selden to the Civil Law as ever was challenged by any Civilian or ever ascribed to it by any or that any can wish to be granted to that profession in any Nation He in effect acknowledgeth that when the use thereof came to be renewed in Europe with other learning it was found to be so rich a Treasury of reason judgment and true natural equity and so useful for all matters that respected Civil society and government that by the knowledge and direction of the Civil Law and the rules and principles thereof they knew how to supply with resolution such cases as their National Laws had not made any provision at all in or if they had but were dark or intricate this would help to explain and illustrate them which neither common reason nor any other humane learning would enable them to do The Universities have therefore since made it their common study and commonly given degrees in it and have sent forth the professours thereof into all Tribunals to be the minsters of right and justice there till now at last it is grown to be a common profession throughout Europe And though the original authority which it had in the Roman State is quite worn out no State being now subject to the Roman Sovereignty yet Mr Selden does admit it to be entertained for a binding Law by ordinance in some places that stamp that authority upon it which of it self it hath not in others usually observed as a Law by custome and practise but where it passes not for Law neither way there the reason and wisdome thereof prevailes and every man suffers himself to be convinced thereby non vi necessitatis sed vi rationis not forcing the will as a Law does but as by reason powerfully working upon and at last controuling the understanding Thus far goes Mr Selden himself and by no Civilian has a greater latitude then this been ever given to the Civil Law For what King James spake to his Parliament in the year 1609 touching this matter That there was no Kingdome in the World not onely Scotland but not France nor Spain nor any other Kingdome governed meerly by the Civil Law but every one of them hath their own Municipal Laws agreeable to their customes as this Kingdome hath the Common-Law we all unanimously own to be true And what he told them of Scotland in particular in the year 1607. may be as well and as truly spoken of all the States in Europe If a man saith he plead there that the Law of the Nation is otherwise it is a bar to the Civil and a good Chancellour or President will oftentimes repel and put to silence an argument that the Lawyers bring out of the Civil Law where they have a clear solution in their own Law So as saith he the Civil Law in Scotland is admitted in no other cases but to supply such cases wherein the Municipal Law is defective This is generally reported by others never questioned by our selves For we are of opinion there is no people in the World governed singly by any one kind of Law whatsoever nor indeed can be much less can any State be totally governed by the Roman Law but that there must needs be a superadded and a peculiar Law especially as to government suiting with the climate it self the nature and manners of the people the fashion and form of publick actions divers accidents of the time and sundry other occurrences Nay we often see it fall out that some certain Laws that are specially made for a people and at their first ordaining are found to be most excellent and very wholesome Laws yet in process of time through alteration of things and the very persons themselves for which they were originally made it is as great wisdome and as necessary to change them and quite take them away as it was at first to devise them It is no wonder therefore that divers parts of the Civil Law that were accommodated to the nature of the Roman people onely and the usages then in being should prove incongruous to the men and to the affaires of this present world which is of a clean different face and nature For instance A Roman subject was not such a supreme moderator amongst his Children nor such a free disposer of his own estate as that he could make his Will thereof as he pleased preferring one childe and excluding another or parting it too unequally amongst them or gratifying some stranger without remembring any of them If therefore a childe were quite left out of his fathers Will or were especially disinherited but without any cause mentioned or upon such a cause as the Law did not allow of or if upon a legal cause yet not such as was true in fact the Will was void and null e Wesemb parat Dig De liber posthum The just portion or share that every child might expect from his father if he made a Will and which he could not give from him without lawful cause was if there were but four children in all or under an equal share in the third part of his whole substance both Land and goods for at Civil Law they both came under one reckoning and went one and the same way without any difference but if there were more then four children then a full half of the whole estate was equally shared amongst them all f Novell De trient semist parag haec nos If less was given to any child then this just proportion or if it were clogg'd with any condition or time of payment whereby it could not come presently and freely to him the Will was not absolutely void g L. omni modo Co. de inoffic testam but a complaint might be brought to restore him to his just and equal share and to have it presently and absolutely without condition incumbrance or day for payment given h L. Quoniam in priorâ—bus Co. De â—noffiâ— testam But in those Nations and Countreys where the subjects are such free and absolute propietaries of all the estate they have that they can dispose of the same how they will even from their own children and to them in what inequality they will these tender and indulgent dictates of the Civil Law are useless and unsuitable Those Titles then and constitutions of the Civil Law that treat on that subject Dig. Co. De lib. postum haered inst vel exhaered De exhaered Lib. De Inoffic testam are not capable to receive any practical use or application in those Territories Again the greatest punishment that the Romans inflicted upon simple theft was to pay four-fold where the thief was taken in the act it self or at least seen and cried out upon before he got out of sight i Cuiac lib. 11. obs 58. or if otherwise the theft was not so manifest to
pay double the value of that which he stole and the reparation was made onely to the party damnified And if there were divers persons taken or discovered to be actors of one and the same theft they all underwent but one and the same penalty amongst them yet either of them might be sued for the whole 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
frequently happen and intermix with the affaires of men yet to supply them with a direct peculiar Law or any other express and determinate rule to settle them is an enterprize that was never undertaken by the wisest Law-givers that have been s Legislator non potest omnia declarare quia res in quibus versatur sunt propemodùm infinitae quia in hac vita mortali nihil est perfectum propter ingenii imbecillitatem non possumus cuncta rimari Mantie de tacit ambig convent lib. 1. Tit. 15. nu 19. nor can possibly be effected by any society of men whatsoever For it cannot be understood how such things can be the subject of any established Law or rule that cannot be foreseen neither what nor when nor how they will come to pass Hae varietates infinitae nullis legibus nullis tabulis nullis Pandectis nulla librorum quaentumvis immensa mole ac multitudine capiuntur sayes Bodinus t De rcp lib. 6. ca. 6. These infinite varieties can in no Laws no Tables no Pandects no Books be they never so many or so voluminous be all of them contained or comprehended And again u Ibidem Non magis legibus singula contineri possunt quà m infinitum quiddam immensum ab eo quod finibus exiguis ac veluti cancellis angustissimis conclusum est sayes the same Bodinus No easier is it to collect all the several cases into one book of Laws then to comprehend that which is in greatness infinite in that which lies in a most narrow compass and is as it were in straitest bounds shut up And yet since there is a necessity of setling such various and so unlike contingencies some rational way or rule must be found out whereby to compose and settle them left they should be made subject to meer will and pleasure or in default of better means men interested therein should be left to right themselves by forcible and violent wayes It is no less evident and manifest that whilest we have to deal with forreign States as ordinarily we do in the way of trade and commerce and too frequently in the way of War too questions and controversies without number do arise some whereof do concern reflect upon the States themselves as being of publick concernment others be of a more private nature and do concern the interest of some subjects onely But when such controversies of either kind do happen is there any Municipal Law capable to decide them should we not as much disdain to be judg'd by the Law of France or Spain when we have to do with them as they would to be over-ruled by ours when they have to do with us Nay should we not abandon the society of such a Nation that should tie us to their own Laws in matters that are transacted and done out of their proper Territorie as happily upon the open Sea or in the Territory of another Prince and people Of what force or power can a Law be to those who are not subject to the authority of those that make it w Ubi cessat jurisdictio statuentium statuti dispositio non obtinet l. fin Dig. de jurisd omn. Iudic. l. r. Co. De susp fut And yet when we fall into their hands and controversies are moved against us in their Tribunals we must inevitably stand to and abide their justice and the like they owe to ours But then right must be done by such rules and principles as both sides may be fully satisfied in the equity of them Here therefore does appear the true use of the Civil Law and the ground whereupon all Nations have admitted it into their Courts and acts of justice For although it cannot be said that there is no case which is not contained in the Roman Law Neque leges neque senatusconsulta ita scribi possunt ut omnes casus qui quandoque inciderint comprehendantur sed sufficit ea quae plerunque accidunt contineri sayes the Civil Law it self x L. 10. Dig. De legib Neither Laws nor results of Council can be so sufficiently framed as to provide for all cases that shall happen hereafter but it may suffice if such cases be provided for as in contingency are most familiar and common yet such is the copiousness of that Law beyond any that has yet been and such a wonderful enlargement has been made thereof by the professours of it in all ages ever since as cases and accidents of all sorts and natures and in all Countreys have happened from time to time from study argument and the several resolutions of forreign Courts applied thereunto and all upon the reason and equity of that Law which was written by the Romans that now it may be justly thought no case can fall out or accident arise which the learning of that profession thus polished and perfected either in express termes or by parity of reason will not determine Wherefore it is upon just reason and likewise upon necessity too that so many Nations have recourse to the wisdome and fulness of that Law thus amplified as oft as their own particular constitutions fail them And although there are a sort of men in the world who indeed have some good natural abilities in them as a ready apprehension a quick wit a holding memory and a smooth elocution but were never brought up either in Law or any learning yet they do much presume upon that ordinary and common understanding which they have that they think or at least they would have the World believe so whereby they may be thought worthy of the best places of Judicature that they can by the strength of their poor illiterate reason resolve all questions and doubts of Law whatsoever whether they arise at Land or at Sea be they of publick concernment or of private entrenching upon our own Law or touching upon the Law of Nations be the case between Prince and people subject and stranger one State and another clear in Law or ambiguous setled by express constitution or left undecided yet their capacity as they would have it conceived without any such help as the Civil Law does suffice for all And yet when these presumptuous and high conceited men do sit to judge and administer right on such matters they quickly find what they would not before believe or at least not have believed by others that their understanding is too narrow to comprehend such difficult things and their insufficiency to be too great to determine them and are therefore driven to consult with the learned of that profession to whose skill it does belong not without some shame to themselves And it were to be wished that the onely effect of such mens ambition and confidence might rest there and that it did no greater mischief But it commonly falls out to be fatal to the interest of many which is taken away or prejudiced by their errour ignorance and sometime States also
learning besides that is taken up in the consideration of things that are clean of another nature and does not consider what dealings there are between man and man subjects and forreigners and what justice and equity does require in each of them as that exactly doth As for vulgar and common reason it is of use in matters that are obvious to sense and to the first apprehension and which are ministerial to the maintaining of life and livelyhood But where the discursive faculty must be employed and great reasoning and a long experience is required as in the things we now speak of ordinary reason if we presume upon it will sooner lead us into errour then be any advantage towards a solid and right judgment Nay so unable are the common capacities to discern and judge of them that it is usual for the Judges of the Law themselves to be at a stand and to spend some time in study and counsel ere they can resolve some questions that do arise so intricate and perplexed are they Thirdly it is the nature and practice of all States and people besides their own proper Laws to use such as are common to all other Nations and men and so no strange thing to cherish two Laws in one Common-wealth as some do too vainly imagine Omnes populi qui legibus moribus reguntur partim suo proprio partim communi omnium hominum jure utuntur sayes Gaius f L. 9. Dig. De just jur and Justinian g Parag. 1. Inst Deju nat gent. civ All people that are guided by any Law or custome at all are guided by a Law common to others as well as by that that is peculiar to themselves for if the Law of a Nation be not universal enough as indeed none is but that in the ministration of justice there will every day arise such questions which the particular Law has not touch'd upon if there be not some other Law to flie to there must necessarily ensue either a failer of justice as to those cases which would draw on a self-revenge or else the setling them must be arbitrary and at will which a people will not long endure Besides there is no Nation in the World that abounds with all things There is no people so well fortified but that they may stand in need of the assistance of others either in matter of commerce or to joyn in opposing a common enemy who watches to destroy them both When as therefore the imploring of this forreign help or the transportation of our native commodities to those that can supply us with theirs which we have not drives us to a necessity of dealing with other people it is substantially needfull also to order such dealings by to have some Law or rules generally known and unquestionably just to both There being therefore a necessity of another Law besides the particular Law of each Countrey the Civil Law has been chosen by most forreign States because it has from the time of the Romans run through all Nations and has been so generally applauded and allowed of by all that now at last it has purchased to it self the honour to be styled Jus Gentium the Law of Nations or jus commune the common Law of all Europe because it hath more in it of the Law of Nature that is common to all mankind then any other Law of Man Fourthly the Civil Law is of such large extent and so vast a comprehension that nothing can fall out wherein the ministration of Law equity or any part of justice may be necessary which either the words of that Law or the reason thereof will not decide For indeed the Romans through the Universal power they had over a great part of the World and their conversing several wayes with the rest were brought acquainted with the nature and state of all Humane affairs of what kind soever Fifthly it provides not for the welfare and interest of one Nation onely as a particular Law does but contemplates and takes care for the general affairs of all people For it treats of all manner of differences arising between one State and another of the Laws of war and articles of peace of leagues truces reprizals rights and priviledges of Embassadours and redemption of prisoners of precedencies due to Princes of the freedome of trade to forreigners and of the restraint thereof upon just and weighty reasons of the free and common use of the Sea and how it may be interdicted or limited of all contracts in and about shipping or transportation of damages or injuries done at Sea of Customes Wrecks Pyracies Salvage or contribution of assurances made upon ships or goods of the carrying of Armes Money or Men to furnish or strengthen our enemies of the conditions given for the surrendring besieged places by whom they may be effectually made and how far they may be extended whether change of governour and government can dissolve amity friendship and respect between us and other States These and such like are matters of concernment to other States as well as to our selves and are not medled with by Municipal Laws but fall under the learning of the Civil Law onely whereby it must needs be accounted a most noble and usefull science the profit thereof being not confin'd to one Territory but communicable to the whole society of Men. Sixthly the precepts and rules of this Law are but the dictates of natural reason and which command the assent and approbation of the most judicious when first propounded And so satisfactory and convincing is the justice thereof both to subjects and strangers of other Nations that it silenceth the complaints of those who are thereby condemned their own reason and consciousness concurring in that condemnation Seventhly it is the use of the Civil Law that holds up the entercourse and correspondence of nations each with other for where the rules of judging controversies as oft as they do arise are certainly known and allowed of there any Prince or people will be strongly invited to Trade make Leagues intermarry send their Embassadours and communicate all other offices of love and friendship whatsoever because they know what dealing they shall have from them and what justice to expect at their hands But where illud justum est quod est utile that is where advantage does rather set the rule for justice then right reason or where it must be administred by prescriptions of their own devising which none can discern any equity or reason in nor understand but themselves such a Nation must make much of themselves and be contented to subsist of what they have of their own for no other Prince or people will adventure to deal or correspond with them Eighthly those that are the composers of this Law in the ordaining thereof had not as is usuall in the making of other Laws the advantages of State in their eye nor the honour and greatness of those that had the government nor any meerly politick
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
so it is set down without any other method or form And they were call'd the Novels because they were new Laws compared to the Laws of the Digests Institutions or the Code and sometimes they alter and correct the Laws of the other three Thus far went Justinian himself in his design of a general survey and disposure of the Roman Laws sometimes ordaining Laws of his own and sometimes gathering together the Laws of others till he had made an exact and absolute composition Which enterprise that renowned scholar and Statesman of our Countrey Sir Francis Bacon does so much commend and admire in his Epistle to Queen Elizabeth set before his book of Maxims of Law that when he understood that she had the like purpose in her breast to enter into a general amendment of the state of her Laws and to reduce them to more brevity and certainty he saith it struck him with great admiration when he heard it and acknowledges it to be one of the most chosen works and of highest merit and beneficence towards the subject that ever entred into the mind of any King but addeth that there be rare presidents of it in government as it cometh to pass in things so excellent there being no president full in view but that of Justinian as he confesseth Whose work is the more to be admired because the use thereof is not local nor restrained to the state and policy of one Nation onely as hers would have been but may serve for the use and benefit of any state or people whatsoever and is subservient to all accidents and occasions that can happen in common intercourse and inded has for its object such things as commonly arise every where throughout the World and have no Municipal or customary Law to determine them But if Justinian should be thought to have failed in any thing of bringing this Art to a full perfection yet what the learned of Christendome from his time downward to this present has done towards the perfecting thereof will make it up for the infinite number of writers of all sorts of all Nations and in all ages that have wrote hereupon are prodigious to behold and wonderful to consider What Glosses Notes Lectures Repetitions Commentaries Paratitles Analyses Intellects are there upon the very Laws themselves There is hardly any Text of Law that is not copiously written on either in stating the true reading of it or in clearing it from obscurity or in enlarging upon the matter of it Then as to the general subjects of the Law and the particular cases and questions that fall under them both speculative and practicall the Tractats Discourses Counsels Questions Reports common Opinions Controversies Resolutions Practices Observations and Singulars are without number Even this latter age of ours besides all that which foregoing antiquity has produced has brought forth every where in all Countreys of renown so many famous writers in this kind that every Nation has seemed to be at an emulous contention each with other which should most excel in such men For France are reckoned Cuiacius Brissonius Molinaeus Antonie Faber Peter Faber Rebuffus Bodinus Tholosanus Gothofred Choppinus Bellonus Papo Charondas Hottoman all of high account in that faculty For Spain there are famous to this day Covarruvias Gemezius Vasquius Alvarez Gregorie Lopez Bernardus Diaz Villagut Pinellus Franciscus Salgado de Somoza Sarmientus Rodericus Suarez Johannes Lupus For Italy Gabrìel Romanus Stiaticus Asinius Cephalus Gigas Gratus Palaeotus Peregrinus Bossius Balbus Puteus Farinacius Mascard Zunt Surdus Vincentius de Franchis Mozzius Sfortia Oddos From Germany came forth not without much estimation and honour Gail Wesenbeck Minsinger Schneidwine Peckius Hopperus Raevardus Vulteius Thomingius Althusius Sichardus Freigius Pacius Forsterus Melchier Kling Every one of these has left such writings behind him in the Civil Law as will makes their memories immortal Neither can it be any wonder that the Civil Law it self and the books thereof are grown so voluminous and almost infinite Because indeed that Science does comprehend that vast and great variety of affairs and worldly business that the large Nation of the Romans dealt in during the long continuance of that great and large Empire And since have been added unto it and squared as it were by the rule thereof and applied unto it the affairs of many Nations which must in all changes and accidents and in each Nation be many various and several from the time of the Empire down to this present Which being severally writ upon by several fancies and in several wayes and methods must needs produce throughout the World large and copious writings in this faculty as it has in all other Arts and Sciences besides But the benefit that the world reaps thereby lies in this that there neither is or can be any contract made or any human affair transacted either Domestick Civil or Military either between governours and governed or between the people themselves one with another or between Nation and Nation either upon sea or upon land but by the help of that study and the writings thereof there may be found most rational rules and directions sometimes to discern the true nature of the thing it self sometimes to discern its kinds sometimes to resolve the doubts and questions that fall under it sometimes to justifie it as wholly good and lawful and sometimes to condemn it as altogether unjust and evil And if the action be not uniform but various and may be in some cases good and in others evil it will distinguish upon the several cases that dealers may walk securely and safely if they will guide their actions by the prescript of that Law where the Laws and customes of their own Countrey doe not direct them otherwise No part of this pains has been taken or honour done by the learned of forreign States to the Municipal Law of any Nation besides the Roman for although every State may wonderfully affect and be delighted with their own Laws and so it may come to pass that they may be greatly extoll'd and set up and sometimes with much industry and great benefit to the subjects interpreted explained and writ upon by the writings of their own Countrey-men yet are they of so little esteem and account with forreigners that they almost disdain to read them But where any have imployed their pens in writing upon a Law of another Nation no one example can be given but in the Civil Law onely which has busied and set on work the learned of the whole World Therefore what high applause soever may be given to the local constitutions of any people as questionless they are all useful within their proper territories yet it is a truth unquestionable that in the account of other Nations whatsoever the case or question be be it between their own subjects so that their own National Laws and customes do not specially order it or be it between them and other Princes or their subjects the Civil Law is
the straitest rule and the best guide to decide it by and the art and skill to dispense equal right and exact justice to all men is to be learnt from the study of no other Law of mans creation but that Law onely Nihil aliud est jus Civile 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
were from himself his reason one chief part of his essence being taken away Besides how would sins and trespasses against nature multiply How common would natural injustice be and what loud complaints thereof would arise whereby not onely great confusion would break in and the peace of the Common-wealth be disturbed but the common society of Nations would in time also cease The Civil Law then as it is natural essential or rational cannot be repealed Secondly let it be spoken to its praise also that the Civil Law is so far from being made useless to a Nation where the whole state of Government has been subverted as that it is thereby become more useful and necessary It is certain that the Roman people themselves thought it so when they dispatcht certain chosen men on purpose to fetch it from Athens for their use and service after they had driven out their Kings suppressed their Laws and erected a popular government in place of the Regal The like opinion possesseth now adayes the Princes and potentates of the greatest part of Europe as is clearly demonstrated by their admitting the learning and profession thereof into their several Territories that it may be at hand to decide and resolve such cases and questions of right that happen amongst their people wherein a Law of their own is wanting Nay if any such difference or controversie arises between the Princes themselves or between Nation and Nation which is most frequent and common because there never was nor can be by any authority a positive Law made to bind them they debate and argue such differences by arguments fetcht from the Civil Law and allow of the reason thereof as a most competent and equal rule to decide them by And if this supply of justice by the learning and knowledge of the Civil Law were taken away too what ignorance uncertainty arbitrariness injustice and oppression would the people of the world lie under and what hazards of detriment or ruine would their rights fortunes and estates be exposed unto for where all manner of Law is wanting in a Common-weale to do the acts of justice and ministration of right by it must be granted that the light of natural reason must of necessity be the Law since that was the onely means which was given to man at first to judge and discern by of humane things before any Law was given But if that should depend upon the wandring fancies and imaginations of men onely and not be illuminated by some right knowledge and learning under how many several shapes and forms must it needs appear when the apprehensions and conceptions of men through the variety of natural gifts education age knowledge and experience are as diffeâ—ing as their visages and persons be And where would the certainty constancy and unity of justice be when the Judges of the same Tribunal furnished with bare natural endowments onely would differ from and oppose one another when one Tribunal shall judge directly opposite to another upon one and the same fact or which is a levity shameful and unbeseeming when the Judges of the same Court in cases of like nature shall judge and order diversly from that which they had done before z Apud Romanos prius quà m sententiam ferrent praeâ—o clara vâ—ce judices bortabatur Ne se paterentur sui dissimiles esse Bodin de rep lib. 6. ca. 6. Under which uncertainty and discordance how shall people know what to expect when their rights come into question What can any Counsel advise Or what caution or advisedness can be used by men to put themselves or their affairs out of jeopardy when they are never certain of that justice to which they should conform themselves and be secure By the conversion and change of State therefore though the Municipal Law goes to wrack as commonly such great frames are seldome medled withal but all falls a pieces the Civil Law is not the less but rather the more necessary to be retained still First because it hath no coherence or conglutination with the particular customes or government either Regal or Episcopal as the Municipal Law hath and so the one may fall and yet the other stand Secondly because the Civil Law is the proper Art and Science of that right natural reason which for want of other rules in the doing of justice we have said must necessarily be the common standard to try all things by The principles of which Art and Science are not weak or superficial but strong and solid not various or repugnant but certain and agreeing not harsh and rigorous but tender compassionate and equitable not partial to any but alike just to all not obscure and perplexed but clear and perspicuous in the eyes of judicious and right discerning men though above the reach of the vulgar Thirdly because it carries the weight of undeniable authority along with it the decisions thereof being not the sudden fancies and raw conceits of a few men nor do they rest upon the bare Reports of any how learned in the Law soever but they are the clear evidence of Reason and the prudent advisements and mature deliberations of a whole State excelling in wisdome mighty in greatness and famous in renown And howsoever it was at first ordained to be a Law for a particular Nation to be ruled by yet has it since been made universal in use throughout Europe and by the general consent of all the learned sprung up to an Art or Science to teach natural justice and equity to all mankind Fourthly because the reason of the Civil Law does not onely rightly inform and teach the understanding what is just and right but the certainty thereof does keep the judgment steddy and unexposed to those fits of variation and instability which those that are directed by no certain principles are subject to for it is not easie for them to vary who have any fixed rules to guide them So that if this Law were duly applied by those onely that are learned in it since it is not possible to be done by any other sort of men neither ignorance nor errour nor arbitrariness nor uncertainty of justice nor the consequences thereof wrong injustice or oppression would be found at least they would not be so frequent and common as where the guidance and light of such a Law is wanting But besides these foregoing reasons there are yet further and much stronger reasons to be added why those matters and causes which before the present change of government did belong to the trial and determination of the Civil Law should be kept within the same cognisance still these alterations notwithstanding First because for many hundreds of years that and no other has been the standing approved and practised Law in those matters and therefore in that regard to be preferred before any new Law though better if such a one could possibly be found Secondly because if it should be laid aside it would be so impossible to
the Canon Law the better 124. yet be does make use of the Civil Law 163 Parents were bound to leave a cerâ—â—in part of their estate to their children 9. 141 Penalties added to Laws argue the power but not the justness of them 158 Punishments for the same offence may justly be greater in one place then in anothes 26 R Reason was given to be mans guide in all his actions 2. it is a beame of the divine light 5. the principles thereof all of them not to be discerned by all 21. is sometimes covered with falshood and is much darkened by other natural corruptions 23. not a more deceitful thing then it 24. then most evident when generally allow'd by all 30. not so requisite in publick Laws as in private 33. private politick and that of Nations to be gathered out of the Civil Law 53 Romes greatness and flourishing does demonstrate the excellency of the Laws wherewith it was governed 98 Rome was as it were the City of the whole World 98 Romes greatness to be imputed rather to their Laws then Arms. 99 Romans very greedy of honour in pursuit whereof they did many gallant acts and especially made such good Laws as they did 100 Romes universal rule a special design of God for the good of man which was the cause that Christ was born under that government 102 Romans when they conquered a nation did not disdain to take such Laws from them as they found to be very honest and rational 107 Roman Emperours some favourable to the Civil Law others bitter enemies against it and the professours of it 112 Robbery in the High way or at Sea or with Burglary punished by death at Civil Law 142 Roman antiquities would have been better known if the old books of the Roman Laws had been preserved 121 Reason vulgar and ordinary not suffient to judge of legal matters 147. 154 Romans through their universal sovereignty dealt in greater variety of business then any Nation 52. 155 Rome came under several formes of government and yet some part of the Civil Law was under all of them 157 Ransome paid for another though without his directions is recoverable from him 91 Roman Laws do onely carry away the name of The Civil Law 166 S Society Civil what the benefits thereof be 56 Succession to intestates goods how regulated by the Civil Law 84 Stoppage is an allowed way of payment at Civil Law 89 Ship or goods when saved by the pains or loss of another the Law will allow salvage or other recompence for it 90 Slavery and servitude out of use amongst Christians 143 Sea matters to be judg'd and tried by Civilians onely 148 T Torture as it is allowed by Civil Law justified 72 Theft by Civil Law punished by pecuniary satisfaction 142 V Vniversities of England why they practise the Civil Law 161 Vniversities of the World teach no other nor give degrees in any other Law but the Civil Law 152. 153. 172. W Wrecks by the Civil Law restored to the owners and go not to the King 21. ERRATA The Reader is first desired to take notice that the Printer by the absence of the Author and being not acquainted with the quotations of Civil Law has from fol. 4. to fol. 23. in divers places in the Margent erroneously set down the books for the Law printing lib. instead of l. which stands for lege When therefore the Law is quoted out of the Digests or Code within that compass instead of lib. read l. as in fol. 4. in the Margent liâ—t l. for lib. 1. r. l. 1. Fol. 4. in the marg litt r. for Minfinus r. Minsing fol. 19. lin 24. rigorem r. vigorem l. 33. for is not so r. is not to be fol. 20. l. 22. for rules r. rulers fol. 71. in the margent litt r. for lib. 57. r. l. 57. fol. 75. l. 10. for need not r. I need not fol. 158. l. 20. for they r. it fol. 175. l. 33. for natural r. unnatural fol. 181. l. 16. for as r. us The End Memoranda TOUCHING THE OATH Ex officio Pretended Self-Accusation and Canonical Purgation Together with some NOTES about the making of some New and alteration and explanation of some Old LAWS All most humbly submitted to the consideration of this PARLIAMENT By EDW. LAKE Philo-Monarcho-phil Justitia Reip. Basis LONDON Printed for R. Royston Bookseller to the Kings most Excellent Majesty at the Angel in Ivy-Lane 1662. To the Right Honourable WILLIAM EARL of STRAFFORD Viscount Wentworth Baron Wentworth of Wentworth Woodhouse Newmarch Oversley and Rabye Knight of the most Honourable Order of the GARTER MY LORD SUch hath been the power of Custom for many Ages that the Authors not onely of just Volumes but of small Treatises too have ever been desirous I know not whether I may say Ambitious to dedicate them to some person of eminent quality and condition as it were Clients to their Patrons for the protecting and crediting them Hereby the Authors have oftentimes gained their desires and the Patrons especially when the excellency of such Books did deservedly acquire it addition of honour and same and also propagated the continuance thereof to all posterity Numerous instances hereof might be given but Mecaenas may be instar omnium which name of a Nobleman hath in a manner monopolized all noble Patrons as Patron 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 My Lord I am far from having any such opinion of this small Treatise indeed not deserving that name being in great part but an epitomized Collection and the rest brief Memoranda's or Notes rather to excite others to proceed upon that Subject then to rest on this though if by this or any other Act of mine any accesse of Honour could accrue to your Lordship I hold my self justly obliged humbly to present and tender it But my Lord the full scope of my intention in this Model is to the best of my Judgment which I alwayes submit to better and of my skill and power to contribute something tending to the further happinesse and continuance of Truth and Peace with Justice and Honour in this Church and State now by Gods blessing to whom be all Honour and Praise ex post-liminio as it were freed from Slavery and Tyrannical Oppression and restored to a capacity of their pristine Beauty and Splendour by the most happy Restauration of our most Gracious SOVERAIGN whom God preserve This I am sure as my Heart prompts me to speak is my sole intention which aymes onely at the advancement of the Publick Good and is not tainted with any drachm of private Interest And my Lord knowing you do Patrizare that most honoured Father of yours whose Memory must never perish whose Losse this Church and State have too sadly felt but Quis talia fando c. and that I may say as Tertullian de Resurrectione carnis sayes of the Phoenix raised out of the ashes of his dead Sire Alter idem Justitiae Honoris cultor sincerus maximè as
His Majesties Prerogative or the known Laws of the Land Ecclesiastical or Temporal or the politick Government either in Church or State or which may give just offence I do hereby absolutely retract it as no wayes by me intended or thought of wishing this small taste may stir up others more able to make a further and better progress in this kind Anno 13. CAROLI II. Regis An Act for explanation of a Clause contained in an Act of Parliament made in the seventeenth year of the late King Charles entituled An Act for repeal of a branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical WHereas in an Act of Parliantent made in the seventeenth year of the late King Charles entituled An Act for repeal of a branch of a Statute primo Elizabethae concerning Commissioners for Causes Ecclesiastical it is amongst other things enacted That no Archbishop Bishop nor Micar General nor any Chancellor nor Commissary of any Archbishop Bishop or Micar General nor any Droinary whatsoever nor any other Spiritual or Ecclessastical Judge Dificer or Minister of Justice nor any other person or persons whatsoever exercising Spiritual or Ecclessastical Power Authority or Jurisdiction by any Grant License or Commission of the Kings Majesty his Meirs or Successors or by any Power or Authority derived from the King his Deirs or Successors or otherwise shall from and after the first day of August which then shall be in the year of our Lord Bod One thousand six hundred forty one award impose or inflict any Pain Penalty Fine Amercement Imprisonment or other corporal punishment upon any of the Kings Subjects for any Contempt Misdemeanour Crime Offence matter or thing whatsoever belonging to Spiritual or Ecclestastical Cognilance or Jucisdiction whereupon some doubt hath been made that all ordinary Power of Coertion and Proceedings in Causes Ecclessastical were taken away whereby the ordinary course of Justice in Causes Ecclessastical hath been obstructed Be it therefore declared and Enacted by the King most excellent Majesty by and with the advice and consent of the Lords and Commons in this present Parliament assembled and by the Authority thereof That neither the said Act nor any thing therein contained both or shall take away and ordinary Power or Authority from any of the said Archbishops Bishops of any other person of persons named as aforesaid but that they and every of them evercisting Ecclesiastical Jurisdiction may proceed determine sentence erecute and erecise all manner of Ecclesiastical Jurisdiction and all Censures and Coertions appertaining and belonging to the same before the making of the Act before recited in all causes and matters belonging to Ecclesiastical Jurisdiction according to the Kings Magesties Ecclesiastical Laws used and practised in this Realm in as ample manner and form as they did and might lawfully have none before the making of the said Act. And be it further enacted by the Authority aforesaid that the afore recited Act of decimo septimo Caroli and all the matters and clauses therein contained ercepting what concerns the High Commission Court or the new erection of some such like Court by Commission shall be and is hereby repealed to all intents and parposes whatsoever Any thing clause or sentence in the said Act contained to the contrary notwithstanding Provided alwayes and it is hereby enacted That neither this Act not any thing herein contained shall ertend or he construed to revive or give force to the said branch of the said Statute mave in the said first year of the Reign of the said late Queen Elizabeth mentioned in the said Act of Parliament made in the said seventeenth year of the Reign of the said King Charles but that the said branch of the said Statute made in the said first year of the Reign of the said Queen Elizabeth shall stand and be repealed in such sort as if this Act had never been made Provided also and it is hereby further enacted that it shall not be lawful for any Archbishop Bishop Hicar General Chancellor Commissary or any other Spiritual or Ecclesiastical Judge Officer or Minister or any other person having or erercising Spiritual or Ecclesiastical Jurisdiction to tenver or administer anto any person whatsoever the Oath usually called the Oath Ex officio or any other Oath whereby such person to whom the same is tenvered or administred may be charged or compelled to confesse or accuse or to purge him or her self of any criminal matter or thing whereby he or she may be lyable to any censure or punishment any thing in this Statute or any other Law Custom or Mage heretofore to the contrary hereof in any wise not withstanding Provided alwayes that this Act or any thing therein contained shall not extend or be construed to extend to give unto any Archbishop Bishop or any other Spiritual or Ecclesiastical Judge Officer or other person or persons aforesaid any power or authority to exercise execute inflict or determine any Ecclesiastical Jurisdiction Censure or Coertion which they might not by Law have done before the year of our Lord One thousand six hundred thirty and nine nor to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs nor to confirm the Canons made in the year One thousand six hundred and forty nor any of them nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enarted by Parliament or by the established Laws of the Land as they stood in the year of the Lord One thousand six hundred thirty and nine The Contents of the Chapters Chap. I. THe endeavours of the Innovators to change the course of Ecclesiastical proceedings That stupendious Fanatick Hackett his fearful end Mr. Cambdens judgment touching the Innovators Their perseverance in their design of Innovation in King James his time and afterwards The pretended taking away the Coercive power from the Ecclesiastical Courts how gained what use was made of it by the Innovators and how they boasted of their benefit by it Two passages in the Long Parliament touching two Inconformists Page 1. Chap. II. The two Proviso's in the late Act that takes away the doubt touching Coercive power in Ecclesiastical Courts Dr. Cosens Apologie for sundry proceedings by Jurisdiction Ecclesiastical That groundless Opinion That a several Royal assent to the executing of every particular Canon in required is confuted The validity of the Ecclesiastical Laws The clamours of Inconformists Innovators and Fanaticks against the putting of Ecclesiastical Laws in execution though the Ecclesiastical Officers and Ministers are by Act of Parliament severely commanded to do it p. 10. Chap. III. The Heads of the several Chapters in that Apologie of Doctor Cosens Part 1. p. 27. Chap. IV. By the late Act the manner of proceeding in Ecclesiastical Courts is not altered but left as it was A summary relation of what Dr. Cosens in his Apologie hath asserted and made good by Gods Word the practice of the Primitive Christians the opinion of the Father the
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
at Common Law Proceedings in Chancery with the several species and kinds of cases wherein such Oaths at Common Law are tendered being very numerous and are by him cap. 6. in the third part of his Apology and other parts thereof reckoned up and fully set forth And if this may be done in civil causes ought it not much rather be allowed the Church in criminal which works onely medicinaliter to reformation the Common-wealth works ad poenam the Church not so this to the amendment of the party to bring him to a voluntary submission and to take away the offence and scandal which he hath justly given to his Neighbour and to lead a new life that perhaps to the loss of liberty corporal punishment or livelyhood at least besides the infamy of being convicted of doing dishonestly and unworthily CHAP. V. That it is consonant to Gods Word to give such an Oath Ex Officio or otherwise EVery soul is to be subject to the Higher Powers Rom. 13. This is to be understood in all commands not contrary to Gods Word Acts 5.29 in such comes in the Apostles rule It is better to obey God then man That the giving such an oath is not contrary to Gods word An oath duly imposed by the Magistrate necessitates the Subject to take it as appears by the commandment of God himself Thou shalt the Lord thy God and serve him and shalt swear by his name The like is given by the Lord in the Prophet Jeremy O Israel thou shalt swear The Lord liveth in truth in judgment and righteousness Joshua gave charge to all the Magistrates of Israel Jer. 4.25 that They shall not make mention of the gods of other Nations nor shall cause to swear by them Saul did not onely charge the people with an oath Josh 23.2 7. but made them vow with a curse not to eat any food that day till night therefore one of them reported to Jonathan Sauls son 1 Sam. 14. That his father had made the people to swear Some would cavil at this as but an Adjuration and would without reason difference that from an Oath but in that Chapter 1 Sam. 14. it is four several times called an Oath The wise King Salomon imposed an oath upon Shimei in a cause capital to him Did not I make thee saith he swear by the Lord c. 2 Kings 42. So King Saul urged David to swear unto him 1 Sam. 24. for a private offence only between Neighbours King Salomon testifieth that a necessary oath of Purgation may be required by the Complainant 3 Kings 8. When a man shall trespass against his neighbour and he lay upon him an Oath to cause him to swear c. 2 Chron. 34. King Josias made a covenant and vow and caused all that were found in Jerusalem and Benjamin to stand to it Neh. 5.12 Nehemiah caused the Priests to swear c. It is assigned for a special mark of a Godly man To swear to his neighbour and not to disappoint him though it be to his own hinderance Num. 30.3 Psal 15.4 Abraham said thus to his servant I will make thee swear by the Lord God of the Heavens c. this in a private cause Gen. 24.3 much more a Magistrate in a cause wherein the Commonwealth or Church of God hath Interest to have it sincerely dealt in Jacob moved Esau to the sale of his birthright Gen. 25.33 and took an Oath for confirmation of it A man supposed to have born false witness against another is thereof brought in question Deut. 19.17 and re-examined if it be objected it was not upon oath by consequence of reason it must be upon oath when what he has said before upon oath is re-examined and this in a case very penal to him The oath of Adjuration is very frequent in Scripture Prov. 29.14 about not declaring cursing which he heard By the History * Jud. 17.1 2. of Micah as we are †1 Cor. 10.3 bound to do all to the glory of God so it belongeth to the glory of God for a man by due presumptions burdned with a crime and charged by the Magistrate to confess of himself as appeareth by the history of Achan The lot fell upon him but this was but an inducement to ground a special Inquisition against him if hereupon he might have been executed Joshua needed not to have required any further confession of him but he goes further with a most solemn Adjuration Lev. 5.1 in those dayes used for an oath the Hebrew word signifying both and being translated sometimes juramentum and sometimes adjuratio Son give glory to the Lord God of Israel c. Josh 7.9 albeit the punishment was capital Ezra adjured the Chief Priests c. Calvin in his Institutions gathereth Ezra 10.5 that Achan took an oath When a man is found secretly murdered in the field and the murder is not known nor suspected yet all the Elders of the next City thereunto should use certain Ceremonies and then swear That their hands have not shed this bloud nor their eyes have seen him that shed it Deut. 21. In Leviticus a certain Sacrifice is to be made for certain sins amongst which this is one as Arias Montanus translates it out of the Hebrew If a soul or a man shall have sinned and have heard the voice of an Adjuration or Oath c. That which is here said Lev. â—5 â— if he have heard the voice of an Oath the Geneva Translation offereth it thus in the Margin as if it were nearer to the Hebrew then the other in that Text viz. If the judge hath taken an oath of any other Exod. â—â— When a man delivers money of stuff on trust to be kept by his neighbour if it happen to be imbezelled away and the thief be not certainly known or found by the Low of God be must take a necessary oath of purgation and enquiry The same also is a little after established by God touching any quick goods happening to be left in deposito Ibid. v. 10. A sacrifice of Atonement for such a sin of Perjury is prescribed If any do sin saith the Lord any deny unto his neighbour c. If a man be moved with a jealous mind against his wife Num. 5.14 she is not onely to be charged with an oath but to have further tryal to drink the bitter waters Jer. 38.14 When the Prophet Jeremy was charged by the King in a generality to answer that which he would aske him the Prophet promiseth so it should not be capital to him he would answer it Whether upon oath or not oath for before God 't is the same no doubt he answered the truth (a) Jer. 37.13 The same Prophet when he was charged with a particular high crime refused not to answer or bid them prove it but roundly answers it (b) 2 Kings 5. So Elisha
or goods gotten by robbery or violent oppression or casually found after they were lost yet by the finder denyed are they not for purgation and clearing of the party from the crimes imputed and in some respect also decisory of the whole controversie unlesse found proofs touching the true guiltinesse of the party may afterwards be found out and used Num. 5 14. The Oath of Jealousie taken with a further solemnity of Purgation and imposed by the Priest a publick Magistrate in that behalf is an oath not onely of Enquiry but of Purgation to the woman denounced for suspicion of Adultery by her husband Deut. 21.8 Lastly the oath imposed by Gods Law upon the elders of the City scituated next unto the corps of a man which is found secretly murdered is a plain and most direct oath of Purgation even in a crime in his own nature evil and capital to the offendors For justifying of the Oath Ex officio and at the instance of a party and of Purgation with Compurgators all in a manner as above the authority of the Civil and Canon Laws is manifoldly extant but that even the oppugners doubt not of nor deny but reject them as in their conceit unreasonable and ungodly and therefore 't is needlesse to name them being so easie to be seen and obvious to every common eye The received use of them amongst most Civil Nations make it to be little lesse than Jus gentium and therefore by moderate and grave men not to be sleighted CHAP. VII That the like practice touching these Oaths is and was in all Forreign Christian Nations and other Nations not Christian guided onely by the Light of Nature TO prove this in Christian Commonwealths the Canons of the church and the practice thereof in all such forreign Christian Nations evince it then which nothing is more manifest To cite the particulars at leastwise to recite them would be voluminous scattered all along the Civil and Canon Law Dr. Cosens in his third part of that Apology chap. 9. quotes many of them as they were used in the Roman Empire before Constantines time as well as after By the customs of Hungary there be many and long Constitutions made for the taking such Oath and of the manner of it Consuetud Hungar de ju ram purgat It is testified also to e the usual practice of all the Dominions in Italy that the party convented in Temporal Courts Marian. in c. qualiter qu. 84. Casonus in Pract. fol. 8. num 3. whether by way of Accusation or at the Prosecution of another or by way of Enquiry Ex officio judicis must swear to declare the truth in all those things that shall be asked of him even of the crime it self This is much stricter than in the Laws of England Ecclesiastical or Civil For Merchandizes to be carried out of France Ordonances du France liv 2. tom 2. tit 14. du droit derefue have passage c. pag. 895. the Merchant must under his hand particularize the commodities with the weight and measure thereof that there be no deceitful or forbidden Merchandize there and upon the truth thereof he is to swear In another Ordinance there the Plaintiffs swear to the truth of what is in their Bills Ordonance de France premier an 1539. artic 38. and the Defendants answer upon oath to confesse those things which be within their knowledge In other matters criminal it is reported to be the custom of France Marcus deciscor 674. for the party Defendant onely to make faith when they are objected and he is thereupon to answer whether he hath committed them or not but he is not to take a corporal oath Grand Constumier entre les constumes du Normandy betwixt which two before God there is no difference But by the custom of Normandy the Appealed of murther must upon his oath holding his Adversary by the hand solemnly swear whether he hath committed such fact or no and Stamford affirmeth the Law of England to be the same in like case of Appeal Amongst Nations of far elder times in most flourishing Commonweals oaths were taken by Plaintiffs and Defendants Ex Polluce Sigonius l 4. c. 4. de repub Athen. in all causes whether civilly or crminally moved So among the Athenians besides a summe deposited to be forfeited by the failer When Aeschines accused Timarchus of a foul crime perpetrated upon him by one Misgolas Misgolas was to be put to his oath Aeschines contra Timarchum pag 7. Grae è. Plato commends Rhadamanthus that strict Justicier feigned by the Poets as Aeacus and Minos also were Platolib 12. de legibus to be a Judge in another world over Ghosts deceased for his justice I say he commends him for exacting an oath in every cause in controversie Aristotle Plato's Scholer Arist Polit. lib. 3 10. testifieth and commendeth the like course The history of Glaucus an ancient Spartan that most just people of Greece evidences this there the oath of a thing left in Pawn was usually given Herodotus in Brato lib. 6. Glaucus and his whole Family rooted out for denying such a Pawn left with him King Agamemnon solemnly and publickly took his oath Dâ—ctis cretens lib. 2. belli Trojani that he had never polluted Hippodamia by Incontinency so was the custom in Greece in matters criminal Homer mentioneth the same King purged himself also in another form Homer Iliad l. 19. v. 257. but with an oath too that he had not violated Briseis In the Olympick Games Pausanias Eliacis the Gamesters with their Parents and Brethren swore they had used no fraud nor deceit In the old Roman Commonwealth Cato de re Rust c. 144 145. private Housholders put an oath to their Labourers that gathered Olives that they had not stollen nor imbezelled any A c final sect 1. de juram calum c. inter soliciâ—udines Xâ—philanus in Comodo Tacit. lib. 2. Anal. c. So the old Roman Law is upon presumptions he that refuseth to take the oath though the cause be criminal is taken for convicted Victorianus general of Germany displaced his Legate or Lieutenant for refusing to take an oath that he was not bribed So Tacitus speaks of a solemne oath which the Senate caused to be taken by way of Purgation in high criminal matters When the Prator one of the chief Magistrates in Rome had made choice of 450. Judges to decide causes Lex Servilia Glauciae apud Sigonium l. 2. c. 6. de judiciis he was to swear he had chosen none of them dolo malo or for any sinister respect And much more might be instanced to this purpose to shew the justice of such proceeding CHAP. VIII That by the known Laws of this Land the Ecclesiastical Judges were so warranted and commanded to give that Oath according to the Canon and Ecclesiastical Laws OR dinaries are authorized to enquire of
considerable as to the benefit of this Nation For the Law it self surely all Scholers and ingenuous men of what Robe or Profession soever cannot but honour it for the Antiquity and in a sort Universality and Excellency of it and the great number of Nations and so many and noble and well-civilized exercise that were anciently and in great part and yet are governed by the rules thereof and the helps received from it even by our own Nation too many wayes demonstrable Before our Saviours time as is touched before Cic. famil epist in the time of Julius Caesar Trebatius an ancient Civil-Lawyer and often alledged in the Pandects remained at Samarobrina in this Island of Britain and after that the Oracle of that Law Forcatulus Aemilius Paulus Papinianus professed the Law and kept his Tribunal seat of Praetorship in the City of York and no inconsiderable part of the Municipal Laws of our Nation have flowed from that Fountain and drawn many Rules and Maxims thence So that it may as that learned Civilian Sir Rob. Wiseman Knight Doctor of the Laws His Majesties Advocate general for the Kingdom of Engl. in that Treatise of his of the Excellency of the Civil Law be truly styled The Law of Laws and as it was said to that Roman orator highly commending eloquence that he lifted her up to the skies that he also with her might be raised up thither so he in that learned and judicious Tract of his setting forth the due and just honour and Encomium of the Civil Laws deserves to be thereby perpetually honoured And for the professors of the Civil Law in this Nation their share of sufferings in these late tempestuous times was the earliest began first some years before the Loyal Clergy were destroyed For upon the passing that Act for the taking away the High Commission in the tail of it was that sting which as the then more powerful part interpreted it took away the coercive power from the Ecclesiastical Courts and so in a manner made them useless and precarious if not ridiculous and within a very few dayes after passed that Act for Poll-money where every Ecclesiastical Judge that had any Ecclesiastical Office of Judicature though some of those places were not worth 30 l. per annum nor 20 l. per annum and some less paid 15 l. a greater summe then some men paid of 10000 l. per annum and more in Land of Inheritance So sharp-sighted was that Act towards that then in a manner even ruined profession The reason of it was visible enough and no wayes dishonourable to that profession or professors who acted justly according to the known Laws of the Land had they done otherwise surely they had not wanted legal punishment as the times then were and the cry that was then unjustly raised against them when the furious flame of Civil war broke forth that wasted the church all loyal Church-men and all that had dependance or relation to them in regard of any Offices or Places as most if not all Civilians had then As to the Civilians Sublatum fuit questionis subjectum their Offices and Places were quite taken away Indeed the most reverend Fathers the Lords Archbishops and Bishops with Deans Chapters Archdeacons and other Dignitaries in Cathedral and Collegiate Churches tasted of the same cup were A la mode then but not so soon as the Civilians root and branch destroyed but the Beneficed Rectors and Vicars that for their Loyalty were thrust out of their Benefices had a small pittance reserved them though when paid at all miserably shrunk and lessened almost to nothing that is as they called it the Fifths of their Livings But as to the reverend Prelates and Dignitaries and the Civilians there was nothing left under such pitiful Step-fathers were the then nick-named Fathers of their Country the prevailing party in that Long Parliament during the time of the long continued usurping Power even till His Sacred Majesties happy Restauration those causes and businesses which of right ought to have been agitated and dispatched by Civilians in their several Offices and places many of them as causes of Defamation Matrimonial causes Tithes if not Legacies also and several other branches of Ecclesiastical Jurisdiction were all along dispatched at Common Law or Chancery contrary to all Law and equity Probate of Wills and granting of Letters of Administration with all the connexes and incidents thereunto belonging and from thence arising were by Commission from that usurping Power committed to a few persons of their own gang at London so that the Subjects from all parts of the Kingdom were to prove the Wills of the dead and take Administration of Intestates Goods passe their Accompts and act the rest concerning them there before them at London The Executors and Administrators must either come up thither personally to them to take their oaths or else have Commissions down into their Countries to do it and the charges to the Subject for such Probate of Wills Letters of Administration and the rest whether they went up themselves to London to dispatch them or more especially if they sent up by others thither to have them done as most commonly they did and not scare one in forty did otherwise and it was the cheapest way probably for them so to do in regard of the charges to send up by others that also had other business of their own there Yet I say by these means and the great Fees taken the charges for proving every Will taking Letters of Administration and the rest came ordinarily to about six times sometimes much more as much as was taken and due before these troublesom irregular times by the Ecclesiastical Judges and Officers to whom of right they appertained that is the Fees and charges usually came to 50 s. or 3 l. or 4. l. or 5. l. and sometimes to 6 l. or more Had such a Grievance and so general throughout the Kingdom reigned in the time of Kingship when faithful and peaceable men acted according to the known Laws of the Land surely the fall of Nilus to the Cadupes would not have made such a noise as our factious Stentors would have then bellowed out And too much of the grievance still remains such Wills Inventories Bonds so Administration with the dependancies thereupon remaining still at London whether the Subject when they have occasion to see or use any of them or sue for any thing concerning them must either personally repair or send for them or sue there which is well hoped will by this happy Parliament be remedied and a course taken that they may be transmitted into every County whence they came for the Subjects ease and that they there may sue upon occasion for any Legacy or other matter concerning them Should it be demanded at whose charge this should be done the dictate of Reason I humbly conceive answers it qui commodum habet idem onus habere debet And thus for no small number of years
So he ought to be bound up not with his bare naked answer or as others would have it with a pecuniary Mulct these are not bonds of the soul which is the Interpreter of Truth but with that alone true and onely bond of the soul that is by an Oath And thus at length the whole hinge of the cause being fixed as it ought to be let us proceed to those Confirmations as St. Paul calls them Neither is it fitting as I hear some complain that the guilty or defendant party should be so bound up and the Agent altogether free Nor is our Law so but as it is not safe for the party agent to be sworn for the reasons that I have twice named Apoc. 12.10 and God himself suffers Satan whom he knows to be a Calumniator to be also an Accuser yet the accusation is so to be put into suit or action and the accuser is so by contract to give security under the penalty of a certain pecuniary Mulct or of a certain note of Infamy under the price of the loss of his time Exod. 21.19 as the Law speaks except he prosecute and prove the suggestion and accusation he hath given in So it is provided for on both sides on the one side by the Religion of an Oath on the other side by a double Mulct and no simple Infamy so that the Agent cannot calumniate nor the party guilty or defendant cannot fly back Now that first of all the guilty or defendant party should be sworn and then answer which some cannot away withall it is just and lawful for if he should do it unsworn he should do it but in a trifling manner that is being free from the Religion of an Oath if any clause in the action should more closely presse him he should refuse to answer should turn himself to and fro seek shifts diversions and cautels should answer nothing explicitely and home that which in conscience of Religion he is tyed to do after he has bound himself by oath to do all things holily and clearly that he had rather be guilty of doing an injury then of Perjury and would rather subject himself to losse then damnation Shall we take a form hereof from the Law and the holy Writ none seems to me fitter for that purpose then that questioning of Ezra in the 9. and 10. Chapters of Ezra where the parties guilty or defendant answer but first were sworn The order and course of which judicial proceeding was this some of the principal persons come and relate the matter to Ezra of Marriages contracted by many suppose an hundred and ten with strangers chap. 9.1 Ezra forces those guilty or defendant parties even many of them not guilty or complained of to take an oath chap. 10.5 he forces them too in a cause in which they might be convinced by witnesses but first he forces them After that as in the 5. chap. 16. verse Esdras with the rest to whom the care of that cause was delegated sit upon the cause which the third Moneth after they bring to effect Which form being used by Ezra a ready Scribe and skilful in the Law of his God it may answer the desires of any man not unjust as to the practice of the Law as they speak and the knowledge of the rules thereof And this is the former use of an oath just and lawful in the settling of the foundation of a suit or controversie The other is when arguments are used to make good the snit or controversie begun Now the arguments or these Confirmations to which the Judge gives credit are partly marks and presumptions such as the nature of the cause bears certain and undoubted partly in corrupt and sound testimonies Presumptions or marks such as are brought forth by the Parents in the case of the slandered Virgin Deut. 22.17 Testimonies upon whose credit the whole action is confirmed Deut. 19.15 In the number of which I say of Testimonies I place an oath and that bounder of controversie or as they speak that decisory oath of controversie Heb. 6.16 The Hebrews out of the old Canon make two parts or rather if you will two kinds of an Oath The former is a solemn contestation wherein any call God to witnesse for want of other witnesses who either cannot or will not bear witnesse even God they call to witnesse who is present every where and in all actions and hath the right of a witnesse The Lord Jehova lives before whom I speak this is a form of contestation Iudges 8.19 The later I may call it an Execration wherein a man gives oath to his contestation or joyning issue in the cause as 't is called pawning as it were his salvation and renouncing all the hope and help he hath from God if he bear witnesse falsly So do the Lord to me and so let him adde there is a form of Execration 1 Sam. 14.44 Neither have Divines thought it of lesse concernment or that the guilty or defendant party was lesse bound whether he used either of those forms or both I adde also whether the Magistrate contest the guilty or defendant party or by adjuration he be execrated or he do it to himself by taking an oath for 't is all one whether this or that be done whether an oath be laid upon the guilty or defendant party by the Judge or he lay it upon himself And that they take for granted as well by Prov 29.24 in regard of the position as by Iudges 17.2 by reason of the condition But this controversie brings another I prosecute not that I prosecute that I begun touching Arguments Now God hath given power to the Judge to enquire of the Arguments touching the crime and of citing the Testimonies as also to the giving of oaths and that for the collecting the confirmations of the cause That power is mentioned Deut. 13.14 Thou shalt enquire saith that Lord and that in general whereof he subjoynes two kinds the first Thou shalt search that is presumptions and arguments The second Thou shalt aske that is witnesses and those that are knowing of the passages concerning that cause The Arguments So it was lawful for Joseph to search his Brethrens sacks that he might find the Cup taken away by theft Gen. 44.5 So is it lawful for our Magistrates to search the hidden corners and secretest rooms of the house so to find out marks or presumptions of suspected crimes Testimonies So it is provided by Gods Law Lev. 5.1 If a soul hear the voice of swearing the Chaldee Paraphrast a most ancient Interpreter of the Law hath added to it * Here seems to be some mistake in the printed Latine nor where we have erred nor is it to be doubted but that it was according to the sense of the ancient church even before Christs time made or given by the Judge and he can be a witness of that matter as one that saw it and knew it in which place the Septuagint turns
question was made whether she had sworn truly or no for proof whereof she was to drink the Bitter waters which would be the confirmers of the Oath if true and the revengers if false Num. 5.24 Against another When the Law had provided that out of the mouth of two or three witnesses who being sworn had given testimony against a man the matter should be established Deut. 19.15 Lest any man should take humane testimonies for Divine Oracles in the next Verse 't is commanded that the suspected witnesse must stand before the Lord the Priests and it must be enquired into whether he hath carried himself sincerely and truly in the testimony he hath given but if he be convicted of falsity then shall he be punished as he should have been whom he complained of But I shall transgress upon the time and upon the Church too the Clock having a while ago called us off if I should further follow these trifles which whoever list my bray with arguments they of their own accord so overflow therefore I restore you to your selves and conclude Isa 28.17 If as the Prophet saith this Judgment which we use be laid to the Line and Righteousnesse to the Plummet of Gods Word there shall be in those things no sin For the Magistrate to require and that from the party guilty or defendant especially if the cause be not capital or a cause of Bloud an Oath and that he may do it so far whether it be that the controversie may thereby be set upon its foundation whilest the state of the cause is sought for or that the truth of the proofs may be made evident whilest the question is handled Nor does the ends of the Oath or the order or the examination offend against Divinity and therefore cannot be declined They that decline it first they do it out of ignorance of Gods Law then the example is dangerous that one may thus for his pleasure enquire into publick judgments without judgment if we may call into question the rest of the affairs of the Kingdom and the moments of the Commonwealth lastly the Law it self if it make not for us That God Almighty may avert this from us to whom turning our selves let us pray that he will give us grace to be modestly wise and sober in all things to see in our minds how irreligious it is how unchristian to decline the judgments of our Nation but rather with all our endeavour with all the strength and force of our Wit to maintain them which maintain the Commonwealth and us all for next after God and his service most true is that saying of Elihu Judgment and Justice maintain all things Job 36.17 Upon the consideration most especially of what hath been written by Dr. Cosens in that Apology touching the Oath Ex officio and Purgation and what is said in that short Manuscript and in the Lord Bishop Andrews Determination thereupon and of the inconveniences and hurt that probably may be feared to ensue upon the prohibiting that Oath and Purgation together with the practice still at Common Law in the like cases and the rest that is here set forth as it is hoped that Act may be thought fit to be revised and re-examined and perhaps altered so with the like humility all that is said or shall be said in this Treatise is most submisly tendered to His Sacred Majesty the Lords Spiritual and Temporal and the Commons in this happy Parliament now assembled to be weighed by them if so to their Wisdoms it shall be thought fit otherwise to be as unsaid and retracted as is every thing there if it be dissonant to Gods Word His Majesties Prerogative the Laws of Church or State or the known Laws of the Land or the just policy and government in Church or State or against Christian charity or brotherly love Should any man object That some Civilians desired that this Act whereby the Oath Ex officio and Purgation is forbidden should passe at the end of the recess of Parliament the latter end of this last Summer 1661. when many other Acts of great concernment were in agitation and some then passed and some stayed supposed that they will be resumed and considered of at the next meeting of Parliament that I say this Act should not stay as some would have had it till that next meeting but rather pass now though with these Proviso's on it I can say no more then this that Certa incertis praeferenda if they could not have all they would have yet to have something that in a manner wanted all was but reasonable prudence it had perhaps savoured of morosity to have done otherwise especially considering that those that have long fasted would be glad to eat though I hope these that administred this food to them did not fear they would as hungry men use to do feed too fast to their hurt not to their nourishment and therefore did set the less meat before them but upon a pause after this refreshment there may be a supply Neither need I humbly conceive any thing that is already done hinder the review or alteration of this Act in that point For it is no new thing nor discommendable but contrary to make Laws upon present reasons or emergencies and yet upon future accidents or contingencies and variation of the times and occasions and other necessary requisites which could not well be foreseen at the making of these Laws nor perhaps dreamt on till they happened to alter change or repeal the former Hereof many instances might be given but so plain a case I shall mention but one and that in a matter of Ecclesiastical cognisance touching Precontracts of Matrimony in 32 H. 8. c. 38. 32 H. 8. cap. 38. What Marriages are lawful and what not WHereas heretofore the usurped power of the Bishop of Rome hath alwayes entangled and troubled the méer jurisdiction and regall power of this Realm of England and also unquieted much the subjects of the same by his usurped power in them as by making that unlawfull which by Gods word is lawfull both in marriages and other things as hereafter shall appear more at length and till now of late in our Soveraign Lords time which is otherwise by learning taught then his predecessors in times past long time have been hath so continued the same whereof yet some sparks be left which hereafter might kindle a greater fire and so remaining his power not to seem utterly extinct Therefore it is thought most convenient to the Kings Highness his Lords spirituall and temporal with the Commons of this Realm assembled in this present Parliament that two things specially for this time be with diligence provided for whereby many inconveniences have ensued and many moe else mought ensue and follow as where heretofore divers and many persons after long continuance together in Matrimony without any allegation of either of the parties or any other at their marriage why the same matrimony should
not be good just and lawful and after the same Matrimony solemnized and consummate by carnal knowledge and also sometime fruit of children ensued of the same Marriage upon pretence of a former contract made and not consummate by carnal copulation for proof whereof two witnesses by that Law were onely required been divorced and separate contrary to Gods Law and so the true Matrimony both solemnized 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
not upon just fears frighted out of the House and it being scarce safe for the King to deny them any thing in that dangerous condition he was then in As also that such Concessions or Acts as then contrary to the Kings free will were wrested from the King were not to be accounted legal or good or valid whereof several instances may be given heretofore of such and amongst the rest one 15 E. 3. the King then yielded to and granted certain Articles pretended at least to have the form of an Act or Statute of Parliament expresly contrary to the Laws of the Realm and his own Prerogative to which he had assented to eschew the dangers which by denying the same were like to follow in the same Parliament it was repealed in these very words following It seemed good to the said Earls Barons and other wise men that since the Statute did not proceed of our good will the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void c. And perhaps it deserves to be thought of how far in this case that Act of 42 E. 3. c. 1. reaches where it is set down that the great Charter should be kept in all points and if any Statute be made to the contrary it shall be holden for none And one especial Law in that Charter is for the preservation of the rights and liberties of the Church whereof this of the Lords Spiritual their liberty of sitting and voting in the Lords House is a known special liberty and privilege and most ancient If we look back to the Long Parliament Proceedings of the House of Commons was it not fit that that House of Commons should have been justly regulated to act no further or otherwise then according to their just power and the Commission and Summons by which they were called which Commission or Writ of Summons is the foundation of all power in Parliaments as it is well expressed by the Lords and Commons assembled at Oxford Declaration of the Treaty p. 15. What fearful exorbitances have been that way the more sad it is to remember the more care ought to be taken to prevent it for the future The House of Commons in former times being desired by the Lords House to consult with them de arduis regni negotiis to which the Lords are called and the House of Commons remembring their call and commission ad consentiendū hiis quae tunc ibidem c. as in their Writ of Summons humbly referred it back to the Lords as matters too high for them And it may seem against the honour and gravity of Parliaments or either House as also to the grievance of the Subject for both or either House or the Committees of either of them as in the Long Parliament to trouble themselves with matters of very small or inferiour nature much below them and in cases where the Law hath sufficiently provided remedy and is still in force to be executed by the proper Judges Were it in making new Laws thereabouts that ought to be so but I mean in making orders about the execution of such Laws which properly belong to the ordinary Judges thereof and are usually executed by them especially touching inferiour matters it look'd then in that Long Parliament as though they would have swallowed up all other courts and made a kind of Justitium in them during the time of their Session such as medling with the appointing of Churchwardens and such like petty matters The late Long Parliament deviated much especially the pretended House of Commons then to omit as being too notoriously deplorable the Iliads of miseries this poor Nation hath thereby undergone besides that horrid one of the murther of our late King of ever blessed memory King Charles the first acted by a pretended House of Commons Was not that then too frequently practised worthy then of reformation that is the judiciary power being in the Lords House and the Commons House having power onely over their own Members in some cases and not having power so much as to give an Oath yet how often did they then upon small matters unworthy of their cognisance in regard they might have been so easily remedied by the known ordinary Laws of the Band and the ordinary competent Judges thereof call orthodox conformable and worthy Ministers to appear before them from very distant remote places sometimes near upon 200. miles for setting a rail about the Communion Table according to the command of the Ordinary or matters of such inferiour nature these brought on and fomented by Inconformists then to the great mischief to this Nation too too much favoured promoted and prosecuted by the then prevailing power The Fees and charges were then very high insomuch as some Ministers were almost if not altogether undone before they could get up thither and when they came by reason of multiplicity of businesse in the Commons House they staid there long and upon great charge paying high Fees still to the Serjeant or other Officers of the House whilest they lay under restraint which oftentimes was very long When a charge after long delay was given in then they gave their answer after a long stay too Then a Committee of many Members was appointed to examine witnesses which was done without oath then after a long time the cause was reported many of these Members not having heard the whole cause but some one part some another yet often concurring at the voting and reporting the cause to the house of Commons which was a strange kind of proceeding to call it no worse In the Star-chamber and High-commission none used to give sentence but such as heard all the cause and they usually excused themselves when they had not heard all the cause Now when the House of Commods had proceeded thus far upon the matter yet they had done little or nothing but vexed and undone a poor and perhaps guiltless Minister for they were to transmit the cause to the Lords House and there to begin it de novo examine the witnesses again upon oath which as before the other House could not do And here 't is to be considered whether or no it were not anceps perjurium a dangerous temptation to witnesses that perhaps have spoken too largely being unsworn will if but for fear of loss of Reputation confirm upon Oath what they have said without Oath It is to be feared also some poor men foreseeing this unevitable course of undoing them have either wronged their owne cause and betrayed their innocence by confessing themselves guilty or ad redimendam vexationem compounded with their prosecutors even to their own undoing or well nigh If there had been cause and that it could not properly in an ordinary way have been remedied by the proper competent ordinary Judges why should not the cause have been begun heard and determined in the
life contrary to St. Paul which seemeth something Anti-Evangelical The yoke of the Gospel should be easie And also Against condemnation upon a single testimony if thought fit that none should be condemned to dye upon a single testimony when there is no other kind of proof by circumstances or violent or vehement presumptions equivalent to a witness that makes a kind of semiplena probatio at the least as in the Canon Law In the mouth of two or three witnesses every saying shall be confirmed sayes the Levitical Law which is repeated in the New Testament and in a manner at least is made Lex Evangelizata The Law-maker Truth Justice in the abstract could as well have said In ore unius vel duorum testium as duorum vel trium if he had thought it so fitting and yet as before the Gospel seems to pinch harder then the Law To that Objection That then many Malefactors would escape it may be answered That secret things belong to the Lord and to him they are to be left and that it is better ten Knaves should escape then one guiltless man should be hanged We have seen and heard how even in a manner miraculously God hath often revealed murther and great crimes that we may suppose that when such crimes cannot be in the ordinary way detected it pleases God they shall be done extraordinarily Many instances might be given of the sad consequences by putting to death upon the testimony of a single witnesse Judge Fortescue in his book De laudibus legum Angliae relates a passage about a Gentlewoman in Sarisbury that was put to death even burnt at a stake for murdering her husband and that sentence given upon the testimony of a single witness which witness not long after upon his death voluntarily and in a most penitent manner confessed he had given false witness against that Gentlewoman and that she was no wayes guilty of that murther for which she was put to death And Judge Fortescue there speaking of the Judge that gave sentence against her hath these words as I take it or to this effect the book is not now by me as they are there in the Latine version out of the Law French Soepius iste judex mihi fassus est quod nunquam in vita sua animum suum super hoc facto purgaret A notable instance this way to relate no more being numerous happened in London not many years since as 't is credibly reported A young man a Lawyers Clerk made love to a Gentlewomans Chamber-maid and a fellow-servant of the Chamber-maids keeping company much with her and the young man using also kind dalliance towards her she conceived that he loved her better then the Chamber-maid but afterwards perceiving she was mistaken she boyled with revenge against him and the Devil watching as a roaring Lion whom he may devour instigated her to accuse him of theft that he had stoln from her Masters house and taken away under his cloak a Silver Boll Upon this bare single testimony of hers the Jury found him guilty he was condemned and dyed for it Not long after the Chamber-maid grieving for the loss of her espoused husband seeing her fellow-servants Trunk or Box unlocked list up the Cover and there saw that very Boll which she very well knew for which the young man was condemned and suffered she calls up her master who found it to be the same Boll which she he shewing it to her could not deny upon this she was prosecuted condemned and suffered death and the Chamber-maid fell mad with grief and dyed And all this came from this judgment upon the testimony of a single witnesse Should any object That this might happen upon the testimony of two or more witnesses It is possible but not so probable and the safe way is to follow the Rule afore-mentioned In the case of Treason two witnesses are required and very requisite and in other crimes capital especially when also in many cases that are not capital two witnesses are required why might it not be reasonably expected though the atrocity of Treason is high yet as to the person offending and suffering the punishment by losse of life is little different And also Touching Juries if though sitting that Juries of life and death as also in other Actions both criminal and civil should be considered of and better Juries impanelled then often are and the Sheriff and Under-Sheriff and other inferiour Officers power in impannelling such Juries be looked after 40 s. per annum as is touched above was in the beginning of that Law or custom of tryal by Juries a good considerable estate and so the persons probably more considerable and knowing They anciently used to be twelve Knights so sayes Sir Edward Coke in his Comment upon Littletons Tenures citing Mr. Lambert Many instances might be given of the strange Verdicts given by some such Juries out of their ignorance or wilfulness or both who oftentimes expresly deny to follow the Judges directions but go quite contrary but I spare to instance them in reverence to the Law under which I was born and live and the practice thereof both which especially in most parts thereof are very excellent And we see what Pamphlets have been published by John Lilburn if not by others too affirming the power of Juries not as is commonly held to be onely in matter of fact but in matter of Law too and how they have controuled learned Judges in their Verdicts and obstinately carried it against them and how the meaning of that Axiom Ex facto jus oritur hath been extremely rack'd The meaning of Legalis homo to qualifie him to be of a Jury is not nor formerly was meant to be onely a man of 40 s. per annum but to be at least in some good measure in legibus peritus as some are of opinion and so as it were a kind of assistant to the Judge And also if thought sitting New Laws to be made upon new accidents that new Laws should be made upon emergencies and accidents when they happen and are notorious and publickly known be the crimes never so heynous and horrid Till they have happened it may be thought fit not to make a prohibitory Law against them for the reason afore mentioned Ne dum prohibent jubent As namely of making Eunuches of men or women Making of Eunuchs That case may be remembred of the Horse-gelder in Nottinghamshire that spayed a young woman and being a casus omissus the Judge could find it no more then a misdemeanour It hath been anciently forbidden by the Imperial Laws and the punishment is capital Cod. de Eunuchis lib 4 tit 4.2 l. 1. The stealing of a Winding-sheet out of a Grave That abominable basenesse of a woman and a Mastiff-dog Stealing of the Winding-sheet out of the Grave not far from Temple-bar London not many years since if the Law be not plain enough in that case that it may