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
't is hoped hath no disaffection to that profession or professors of it but rather in a just resentment of their oppression sutable to his birth and noble disposition if so I say they may comfort themselves in this that they were put to the test in the beginning of the Long Parliament when their factious Accusers were sufficiently numerous and virulent and had they been found guilty they had not then escaped punishment severe and infamous enough They could not easily have been highlier justified then that way which made it appear to all the world that that clamorous party through the sides of the Civilians intended to strike at and wound their Superiors and so serve turns and ends and compasse their long-weav'd design If the Civilians do their parts in their Functions uprightly and diligently which their own consciences doubtlesse will prompt them to and the vigilancy of their factious Adversaries over their actions may serve to keep them awake 't is to be hoped they will every way find comfort and encouragement However that peace at the last and the continual Feast in the interim will buoy them up above the greatest waves of envy or malice Good men will be their friends though the contrary be their enemies and one Cato is better then a Theatre And we cannot but be confident that we shall never have cause to say as some said in another case Non nos Resp. sed defuit nobis Respublica We have a gracious KING whom God protect blesse and prolong his dayes Et Spes Ratio studiorum in Caesare He we doubt not will as before him his Royal Father Charles the first King and Martyr and his Grandfather King James of blessed memory look upon us with a favourable eye according as he finds we endeavour faithfully and diligently to serve the Church and State that is to serve him they who faile therein deserve not to be remembred And besides the general His Sacred Majesty hath in particular demonstrated his gracions favour that way by the addition of honour and honourary revenue to the Masters of the Chancery Civilians for the most part an act that if possibly there can be an addition adds to the just obligation of duty service and gratitude which they owe his most excellent Majesty And all due thankfulnesse and honour the same Profession must ever acknowledge and render to the Right Honourable the Earl of Clarendon Lord Chancellor of England for his special favours to that Profession and Professors and for his mediation and being instrumental as none I believe can suppose otherwise in the obtaining that favour and bounty to the Masters of the Chancery and by furthering the continuance of His Majesties gracious inclination towards them We blesse God and His Majesty and his Lordship for it and are I hope and ever shall be most thankful for it ad rejoyce and comfort our selves in it and Rumpatur quisquis rumpitur invidia Now as in the Preface I thought fit to subjoyn that little Manuscript touching the Oath ex officio with that Determination touching the same by that glory of our Church the late Lord Bishop Lancelot Andrews Bishop of Winchester A Manuscript treating of the Oath Ex officio said to be Doctor Davenants late Lord Bishop of Sarisbury 1. THat which the Commons House complained of is that the Commissioners Ecclesiastical proceed Ex officio that is say they without a known Accuser 2. And that they cause men to answer upon their oath that which they would have is this 1. That no man should be dealt with but an Accuser should stand forth and that no Oath should be ministred to a man in his own cause That which your Lordships have enjoyned me is to shew my opinion whether the courses complained of be warrantable by the Word of God or no. Two parts there are distinctly to be spoken to the one of proceeding without a known Accuser the other of proceeding by way of Oath I begin with them generally at large and after as they concern Ecclesiastical proceedings 1. The end of all Judgments in all Courts is to remove evil The Heathen man sayes Interest reipublicae ut malefict tollantur the health of the civil body consisting no lesse in removing evil persons then doth the natural in purging out evil humours And the very same is Gods course in his Common-Wealth ten several times in Deuteronomy he repeats it Vt sic tolletis malum de medio Israëlis 2. Evil then is to be removed not onely civil but Ecclesiastical so doth God take express orders that corrupt Religion contumacy in disobeying his Priest Incontinency Defamation matters all of ecclesiastical cognisance should be removed expresly terming every one of them malum in Israële And so in the New Testament doth the Apostle speak of the case of Incest Vos autem auferetis malum de vobis These then are evils and Ecclesiastical evils and to be removed 3. If they must be removed they must be known for St. Hierom saith well Quod ignorat medicina non curat Physick both corporal and civil must know the peccant humour before they can purge it 4. If know it they must by the parties themselves they shall never know it The first that ever did trespass were not so ready to commit sin but they were twice as ready to conceal it And as Tertullian saith to good purpose Reliqui omnes congeneres primo All other offenders do as the first did seek to keep their offence from being known The offences themselves ye know are called opera tenebrarum and Incontinency that defileth the body as well as the spiritual Whoredom which is corruption in the Worship of God either of them we know is angularis actio and kept from knowledge as much as may be 5. Then if they must be known and will not by the parties themselves some other means must be used to bring them to light where if there be a party to stand up and accuse 't is well and he not to be refused But we know and I refer my self to your Lordships that it is holden an odious matter to be an Accuser and with the better sort of men more odious Few that be well disposed will be gotten to it and even they that will I refer me to your Lordships again whether Salomon saith not true that One evil will not be accused but out of another evil that is grudge or spleen to wreak our selves upon some party that we conceive hath wronged us otherwise the faintness of men to become Accusers will make that much evil will not be removed if this be onely the way to remove it but God saith All evil must be removed so near as may be 6. For that cause God hath authorized those that hold Judicial places for the removing of evil not onely to receive accusations when they be brought against it but if none be brought to make enquiry after it in the 13 17 and 18 of Deuteronomy that
having the said contract sufficiently and lawfully proved before him to give sentence for Matrimony commanding solemnization cohabitation consummation and fractation as it becometh man and wife to have with inflicting all such pains upon the disobedients and disturbers thereof as in times past before the said Statute the Kings Ecclesiastical Iudge by the Kings Ecclesiastical Laws ought and might have done if the said Statute had never been made any clause article or sentence in the said Statute to the contrary in any wise notwithstanding Provided alwayes and be it enacted that this Act do not extend to disannul dissolve or break any marriage that hath or shall be solemnizated and consummated before the said first day of Day next ensuing by title or colour of any Precontract but that they be and be deemed of like force and effect to all intents constructions and purposes as if this Act had never been had ne made any thing in this present Act notwithstanding Provided also that this Act do not extend to make good any of the other causes to the dissolntion or disannulling of Matrimony which be in the said Act spoken of and disannulled But that in all other causes and other things there mentioned the said former Act of the two and thirtieth year of the late King of famous memory do stand and remain in his full strength and power any thing in this Act notwithstanding Stat. 1 Eliz. 1. By these the inconveniency appeareth of taking away or altering an ancient long-settled Law practised long in all Christian Countries as this way which had it not been good probably the inconveniency and hurt of it had appeared in so long a time and the Law for the Oath Ex officio and Purgation is of like antiquity and practice in all Christian Countries without inconvenience or hurt thereby arising as yet that I ever could hear of therefore such Laws ought to be deeply weighed and considered of before they be repealed or altered And now that I am speaking of repealing and altering old Laws and making new I thought fit to close this Tract with some Notes of mine drawn up almost all of them in the time of the usurped Government and some after His Majesties restauration and communicated to the sight of some of Quality touching the repealing or altering of some old Laws and making new Some are already past and effected as that for the Lords the Bishops sitting again in the Lords House in Parliament and other things These I offer with all humility to be considered of if it shall by those in Authority be thought fit otherwise to be as unsaid Protesting that I retract as before any thing which is here mentioned that shall appear contrary to Gods Word His Majesties Prerogative or the Laws of the Land or the Just policy and government of any of His Majesties Dominions Touching Parliaments AS a Parliament well constituted and acting regularly Parliament proceedings conduces much to the happinesse of King and Subject so any exorbitancy or deviation therein of which surely all unbiassed men cannot but confesse we have had too much sad experience in the Long Parliament works the contrary corruptio optimi pessima In the time of the Long Parliament some as it were idoliz'd it even almost to an opinion even of Infallibility of which they have made too much advantage to the misery of King and People Some advised then that that great Wheel that great Court should have had its sphere of activity it s known certain bounds publickly declared and not have been like a great River prodigiously overflowing all its banks and bounds Such a Parliament acting regularly is' t not probable the Members thereof would not so much have thirsted to lengthen much lesse to perpetuate it They were called up to consult may not he that calls his Counsellor forbear consulting him when he pleases and dismisse him The extent of an Ordinance of Parliament Ordinance of Parliament having by some been tentor'd then even almost to Infinity might it not have been precisely circumscribed and the exact definition of an Ordinance given As also the just privileges of Parliament explicitely have been made known Privileges of Parliament that the Subject might not then have sworn or promised or protested to have maintained and observed them and yet could not possibly know what they were That due care should have been taken that they might have been observed and kept inviolable on all sides neither diminished nor scrued too high and both the Members of the Houses and the People to have had their just rights entire and for this purpose that that Protestation then put in by the Lords Spiritual the Bishops The Bishops Protestation with their Petition to have the force removed that kept them from the Lords House should have been well consider'd on and the right of Protestation in Parliament declared and maintained being a great privilege And whether after a just Protestation unjustly rejected and the Members kept out of the House by force that so protested and petitioned whether the other Members could then have proceeded further in the House In the late Kings time in the beginning of his Reign when the Earl of Arundel was imprisoned in the Tower about his sons marriage of the Duke of Lenox's daughter being of the Bloud Royal without the Kings consent the Lords would do nothing in their House till he was restored in regard he was committed onely for a misdemeanour and neither for Treason Felony nor breach of peace in which cases they then confessed a Member of Parliament in Parliament time might be kept prisoner The King none of the three Estates And the Lords Spiritual being one of the three Estates as 1 Eliz. 3. and elsewhere and the King being none of the three Estates the contrary whereof hath been falsly held but the Head and the Lords Spiritual and Temporal and the Commons being but Members and further the Lords Spiritual being one of the greatest Estates of the Realm as 8 Eliz. 1. Some doubted whether one of the Estates can destroy another and whether that come not near the contradicting that Axiom that the Parliament cannot be Felo de se whether that concerns not the Lords Temporal and Commons as well as the Lords Spiritual As for His late Majesties assent 't is known how far the prevalent power in both Houses then carried that and other things too to the misery of the Kingdom Who knows not in what condition the King then was forced to flye by reason of the tumults from Westminster to remoter places And as touching that Act of Parliament for their expulsion out of the Lords House it is not to be forgotten that when it was first brought into the Lords House it was rejected and ought not to have been brought in again that Session yet afterwards it was contrary to the order and course of Parliament brought in again when a great part of the Lords were absent if
on that subject entituled Tenenda non tollenda or the necessity of preserving Tenures in capite c. and if it should be thought fit still to continue the abolition of Wardships c. whether the Tenures notwithstanding should be continued and whether a fitter retribution to His Majesty should be made then by Excise of Ale c. I need say no more of this but let Mr. Philipps book plead for it And also if it shall be thought fitting Rates to be set upon some Commodities for the sale of them that upon many more commodities then are yet the known rate and value of what they should be sold for should by indifferent and knowing men be set down considering the great hurt done by selling many commodities at unreasonable rates upon some accidental straits in regard of some accidents of time place or persons and many imposing upon the unskilful and unwary buyer very often as is notorious demanding more the double the price they will take In forreign parts both upon books and other commodities fitting rates are by Authority set down whereby the seller may have a just gain and the buyer not be over-reached Certum quid is the great satisfaction to the Subjects as in Fees certain in all Courts so at least in many commodities Also if it be thought fit that in point of dignity and precedency About dignity and precedency a fixt certain plain rule might be set down which probably would take away much emulation and grudging and quarrels oftentimes amongst many if it were clearly once determined And amongst others if it were so determined who should have precedency the eldest son of him whose father was a Knight and the first Knight of the Family or the eldest son of him whose father was but an Esquire but the eldest son of a Knight Senior to the Knight father of the former or whose Grandfather or direct Ancestor from whom he is lineally descended and is eldest son and heir was a Knight the second conceiving it is his right in regard he is the direct descendant and heir to the Senior Knight And that if it shall be thought fitting no person that bore Arms against the late King or His Majesty that now is or had any pretended Commission or authority so to do shall own the Title of General Lieutenant General Major General Commissary General Colonel Lieutenant Colonel Major Captain Lieutenant Cornet Ensign or any other Title by reason of any such pretended Commission or Authority nor any person shall so call them by any such Title under pain of a great Mulct toties quoties to be inflicted both upon the person that owns such Title and on the person that gives it or so calls them Nemo ex delicto consequitur beneficium and so bad a cause ought not in any implicite manner to be approved and rightly considered 't is an infamy to the parties to be called so And also Against the Act of limitation of actions in some cases if it be thought fitting that in regard that many who took the Kings part in the late wars could not have their right of suing for their own just due debts owing them and contracted either before the wars or in the time of the wars in the Courts of Justice then in being so that six years were elapsed according to that Act of 21 Jacobi 16. touching limitation of Actions and so they are thereby excluded to their great impoverishment There should be an abrogation or suspension of that Act so as to give remedy in this case that the spoiled may have reparation or retribution of justice if not reward for his Loyalty And also Against multiplicity of Statutes upon one and the same subject if it be thought fit that where Laws are doubtfully penned they may be explained and where there are multiplicity of several Statutes touching the same subject some repealing part of a statute some enlarging and altering so that the true meaning of the Statute becomes difficult and perplexed that in such cases all the said Statutes several so concerning the same subject may be repealed and one plain and clear Statute thereof to be made as namely these several Statutes in the Reigns of King Edward 6. Queen Mary Queen Elizabeth King James and King Charles 1. touching the prohibition of eating Flesh in Lent and other Fish-dayes and concerning Fasting-dayes may be so repealed and made void and one Statute made clearly and plainly to comprehend all that is necessary upon that subject Touching Ecclesiastical Persons Courts and Causes SOme have wished if it were thought fit The Clergies Proctors in the House of Commons that now the Lords Spiritual the Bishops being restored to their right in the Lords House that the Clergy should have their Proctors to sit in the House of Commons if they desired it representing the body of the Clergy as they used to do till about Henry the sixths time or not long before as it was then used since which time it hath been disused Some have affirmed that a Clergy-man of competent temporal estate having in King James's time been chosen Burgesse for a Corporation was not suffered to sit there nor a Clergy-man to say Prayers there Nor will some yield they can vote to chuse a Parliament-man either in County or borough so little of representation have they and yet when in Convocation they give the King Subsidies their grant must be confirmed by Act of Parliament Anciently such care was taken that Bishops should be present in Parliament that in their absence their Chancellors were summoned to sit there Also if it be thought fit About augmentation of Vicaridges that whereas before the dissolution of Monasteries the Bishops had power to augment poor Vicaridges out of the Tithes of Impropriations so they are now commonly called though the true name is Appropriations the Tithes having been appropriated to some Monastery or Religious house or other before the dissolution and after that falling into Lay-mens hands who held them improperly living by the Altar and doing nothing there got the Nick-name of Impropriators and Impropriations which now holds good such is the tyranny of Custom in this and many other cases Or if there were no Vicaridge endowed the Bishops might endow one nay and go so far as to leave to the Appropriator which then was that Religious house to which it was appropriated who then thought themselves as worthy to be kindly used as a man would think our Lay-Impropriators can do now not much more then a 50. part of the Tithes or thereabout It seems hard that the Lay-Impropriator should have a matter of 200. or 300 l. per annum Against Mensals or more and the poor Vicar a matter of 20. marks or 20. Pounds or thereabout and hardest in Mensals that is as it was usual when a Religious house could procure from the Patron the right of Presentation to some Living near their Monastery whither one of their