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A66733 The law of laws, or, The excellencie of the civil law above all humane laws whatsoever by Sir Robert Wiseman ... ; together with a discourse concerning the oath ex officio and canonical purgation. Wiseman, Robert, Sir, 1613-1684.; Lake, Edward, Sir, 1596 or 7-1674. 1664 (1664) Wing W3113A; ESTC R33680 273,497 368

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the word knew it into being conscious of it if he that is so conscious of it shall be called forth to give his testimony if he reveal it not he shall bear his own iniquity Therefore 't is lawful to make inquisition and upon oath And first of all 't is lawful to make Inquisition touching the party guilty or defendant even amongst others though his Brethren though they be religious persons as Obadiah touching Elias 1 Kings 18.10 there is no Nation or Kingdom whither my Lord hath not sent to seek thee and when they said He is not there he took an oath of the Kingdom and Nation that they found thee not And methinks 't is likely when this oath was common to the whole Kingdom it fell also upon those religious men whose Knees were not bowed to Baal nor had their lips kissed him neither did they in this cause though it was to the prejudice of their Elias and that too before wicked Magistrates refuse to give their testimony Neither is it onely lawful to enquire concerning the guilty or defendant party amongst others onely but also to enquire of him himself concerning himself The great Judge gave us a precedent herein in that first Inquisition that ever was Gen. 3.11 Who told thee that thou wast naked hast thou eaten of the tree whereof I commanded thee that thou shouldst not eat So the Princes interrogated Baruch touching Jeremiahs book Tell us how didst thou write all these words at his mouth So Esdras the very parties guilty or defendants touching their own fact Esr 10.11 So the High Priest committed St. Paul to custody to enquire something of him more perfectly Acts 23.20 For oftentimes accusers fall back which the Heathen man long since observed All cannot some will not accuse what 's to be done then Some mens wickednesse because they are truly the works of darknesse nor can be brought to light Ephes 5.11 because they joyn hand in hand nor will discover themselves Prov. 16.5 Because the name of Doeg is harsh and even the very thing to go forth to accuse is now become poor and odious a matter of cost danger and infamy Prov. 25.8 And shall we suffer wickednesse to lye hid and spred abroad and by delay to gather strength till at length it break out to the ruine of the Commonwealth and because no man can or will for it is all one whether he will not or cannot accuse is' t not lawful to enquire surely 't is lawful But 't is in vain to enquire without the bond of an Oath The Holy Ghost in the old Testament expresses it by the word adjure and so the King adjured Micheas In the New Testament also by the word adjure so the High Priest adjured our Saviour Mat. 26.63 and they both made Religion of not answering to the Question Touching the Hebrew word there is no question but that both by the force of the name and the use of it it imports an Oath I adde nor is there of the Greek word neither if Beza and the rest of the Translators render right that request of the Devil which is in Mat. 5.7 I adjure thee that thou torment me not that is assure me by giving me an Oath or swearing to me that thou wilt not torment me So seems it to them but that term of Adjuring I passe by I take the other if it be another of laying an Oath up on the party guilty or defendant that is that by Law it is permitted to the party agent to force him against his will to take an oath Exod. 22.8 1 Kings 8.31 and therefore 't is more then permitted to the Magistrate Surely very bad were the case of our affairs if every private man should have power to require an oath of the party guilty or defendant and the Magistrate should not have power if in the case of a Pawn it should be lawful and not of a Kingdom if one may be forced to swear that he hath not put his hand to his neighbours goods and cannot be forced to his oath that he hath not put forth his hand to the peace of the Commonwealth If as to the Law his case be better that makes troubles in the church of God then his that has done it about his friends money Compare these one with another First the magistrate then the party agent one perhaps of the meanest of the common people then the case of a mans small summe of money and the case of the Commonwealth further that Pawn sometimes may somewhere be discovered but those clandestine conspiracies cannot unless you grant such Inquisition for that 's vanished into the air left no impression behind it Either I am very much mistaken or whether you consider the persons or the matter or the moments or the events of the things the equity and necessity of an oath is here greater Therefore that the party guilty or defendant should be so interrogated in his own cause 't is allowed by Gods Law and that also by the laying on an oath is lawful And this last use of an oath is just and lawful not onely that the state of the question may be settled by the answer of the party guilty or defendant as before is laid down but also that the confirmations of the cause that is the pillars of the proofs may be gathered together whereupon the Judge may relye to determine the suit on one side This may suffice for this purpose unless that as I believe there rest one knot or another not worthy the loosing but that as the world goes now-a-adayes every scruple that men make becomes a rock they complain that by these means men are compelled to an infinite oath except before hand they may have the Question and afterwards take the Oath The reason hereof I have given before and therefore will not here repeat it This onely I maintain that the usual oath given cannot be declined by reason of Infinity for whilest those bounds and as it were ends of an oath the Prophet Jeremiah speaks of Jer. 4.2 which alwayes in Divinity were accounted the bounds and as it were the ends of an oath in truth justice and judgment whilest these were observed there was caution enough had nor other ends doth the Scripture acknowledge or require 1. In Truth that is truly That no man be compelled to swear contrary to that he knows as it was charged upon Micheas 1 Kings 12.16 Tell me nothing but truth in the name of the Lord. Or if any man like better that Attestation of St. Paul Rom. 9.1 I say the truth in Christ I lye not my conscience also bearing me witness in the holy Ghost This is enough for the first part 2. In Justice that is justly That nothing be sworn but what is possible in which case Abrahams servant took care Gen. 24.5 Perhaps the woman will not be willing to follow me c. The Heathen themselves too had that caution So far as I know and am able
'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