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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A02848 An ansvver to the first part of a certaine conference, concerning succession, published not long since vnder the name of R. Dolman Hayward, John, Sir, 1564?-1627. 1603 (1603) STC 12988; ESTC S103906 98,388 178

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to be takē not as though al natiōs haue at any time obserued one vsage alike it is not necessary faith Baldus that the word al● should cary so large a sēce neither hath it euer bin brought into knoledge what customes all nations haue held in vse And it is most certain that ther is not one point or precept of the law of nature but by reasō partly of the weaknes partly of the corruption which the fal of Adam fasten in his posteritie some people haue at all times either neglected or els depraued some being so dull as they could not perceiue others so malicious as they would denie that which nature did lay before them Yea such is either the weakenesse or wilfulnesse of our iudgement that they who are not onely admitted but admired for wise men doe many times disagree in determining what is most agreeable to nature much lesse may we either expect or imagine that al natiōs so differēt so distāt neuer so much as now and yet not now fully discouered should iūpe in one iudgemēt for vniform obseruatiō of any custome neither is that no natural right as Zenophon noteth which many dayly doe transgresse And therefore Donellus did vniustly reiect the discription which Gaius gaue of the law of nations by taking the word al in the amplest sence S. Ambrose and S. Hierome did in this sort declare it that we are to take that for a decree of natiōs which successiuely and at times hath beene obserued by all But as for any one time as it is to be iudged the decree or custome of a whole citty which hath passed by consent of the most part although al haue not allowed and some perhaps haue opposed against it so is it to be esteemed the lawe of nations the common lawe of the whole world which most nations in the world are found to imbrace And because gouernment was not from the beginning but induced as a consequēce of the primary precept of nature to maintaine humane societie therefore whensoeuer wee speake of naturall gouernment we are intended to meane the secondary lawe of nature which is the receiued custōe successiuely of al alwaies of most nations in the world Out of this we may gather that three rules doe chiefly lead vs to the knowledg of this law The first is that which Cicero in the like case giueth to appeale vnto sēce because there is no man but by the light of nature hath some sence of that which nature doth allowe S. Augustine saith I know not by what inward conscience we feele these things and likewise Tertullian Nature hath tainted all euill eyther with feare or with shame Wherto agreeth that which S. Ambrose saith although they deny it they cannot but shew some tokens of shame Herupō the authors of the ciuill lawe do reiect that for vniust which is not demaunded without shew of shame For as Cassiodorus writeth God hath giuē●l men such a sence of iustice that they who know not the lawes cannot but acknowledge the reason of truth But because this light of nature in many men is exceeding dimme the next rule is to obserue what hath bin allowed by those who are of greatest both wisedome and integrity in whom nature doth shew her selfe most cleere For as Aristotle saith that is probable which prooued men do approue Among these the first place pertaineth vnto them who by inspiration of god haue compiled the books of holy scripture to whom as attendants we may adioyne the anciēt counsailes fathers of the church The next place is to be giuē to the authors of the ciuill lawe whose iudgement hath bin these many hundred yeers admired by many approoued by all and is at this daie accepted for lawe almost in all states of the christiā common wealth To these also we may adioyne as attendants their interpreters of most approued note The third place is due to Philosophers historiographers orators and the like who haue not vnprofitably endeauoured to free nature of two cloudes wherewith shee is often ouercast grosse ignorance and subtill errour But because naturall reason as Alciate affirmeth doth sometimes varie according to the capacitie of particulare men euen as the sunne beeing in it selfe alwaies the same giueth neither heate nor light to all alike the third rule followeth to obserue the common vse of all nations which Cicero calleth the voice of nature because as Aristotle hath written it is not done by chance which euery where is done Plato saith this shall be the proofe hereof that no man doth otherwise speake and likewise Baldus I dare not disalow that which the world alloweth And in this cōmon lawe or custome of the world three circumstancies are to be considered antiquitie continuance and generalitie Now then your first position is so cleerelie true that you doe but guild gould in labouring to prooue it for man is not onely sociable by nature but as Aristotle affirmeth more sociable then any other liuing creature These notorious pointes the more we prooue the more we obscure Your second is also true for as Tullie saith Without empire neither house nor citty nor nation nor mankinde can stand nor the nature of all things nor in a word the world it selfe Whereto agreeth that of Aristotle gouernment is both necessary and also profitable But whereas you bring in proofe hereof that there was neuer people founde either in auncient time or of late discouerie which had not some magistrate to gouerne them neither is it necessarie and yet false It is not necessarie to haue so large a consent of nations as I haue declared before and it is false that in all times and nations there haue beene magistrates After the deluge magistrates were not knowne vntil kings did arise as hereafter it shall appeare The Iewes were often without either magistrates or gouernement Whereupon in certaine places of the booke of Iudges it is thus written In those dayes there was no king in Israell but what seemed right to euery man that did hee Sometimes Democraticall gouernement doth drawe to a pure anarchie and so doth the interregnum of electiue principalities Leo Aser reporteth that in Guzala a countrie of Africke the people haue neither king nor forme of gouernement but vpon dayes of mart they elect a captaine to secure their trafficke The same authour deliuereth that the inhabitantes of the mountaine Magnan vpon the frontiers of Fez haue noe forme of common wealth but doe stay trauailers vnpartiall iudges to decide their controuersies Leo himselfe was arrested to bee their iudge and when hee had spent many dayes in determining their debates hee was in the end presented with hennes ducks geese and other of their countrie commodities which serued onelie to discharge his host And if this your reason should bee of force then were not sociabilitie naturall because many men haue made choise