private men We know for certain that at the first erecting of Commonweals when some certain kind of regiment was once approved nothing was then further thought upon for the manner of governing but all permitted unto their wisdome and discretion which were to rule the Princes word beck and rule serving instead of all Laws who both in time of peace and war sent out their edicts from time to time as the present occasion required all depending upon their full and absolute 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 princ writeth the Roman Common-weal to have been at the first governed by Regal power without use of any Law 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 bonestorum ac turpium lex aeterna in mentibus unjuscujus que nostrum ab immortali Deo fit inscripta poenae tamen quibus improbi ab injuriosa facinorosaque vita avocentur in animis inscripta 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 Civil 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
unto Italy when the Gothes came to invade them were also permitted to enjoy the Roman Laws upon the same termes and especially when Honorius and Arcadius surrendred Aquitaine one of the conditions was ut lex testamentorum iis salva esset that their Laws for ordaining or expounding their last wills should not be infringed And Alarick the second one of the Gothish Kings was so affected towards the Roman Laws that in the year 506 he employed his own Chancellour Anianus to make a Collection out of the several parts of the Roman Laws whereof the Theodosian Code was the chief and to write Notes and Expositions upon it which after he had done it was published and set forth to be observed as Law in France And Mr Selden writeth e Dissert ad Flet. ca. 5. parag 4. that the same King did the like in Spain too as well as in France So that albeit ruine devastation and violence had buried all that was Roman besides and for the better and more sure keeping of what was gotten clean another government and another Law was also setled yet the Roman Law either out of necessity because they saw the hearts of that people so set upon that Law that they would never have remained quiet or peaceable without it or out of some good esteeme that such a wilde and barbarous people bore to it themselves finding it to be so wise solid and rational was still retained in some use in Italy France Spain and in Germany too as the same Mr Selden affirmeth amidst its very enemies though much diminished corrected and controuled by their own supereminent and over-ruling Law So good a piece of policy and such a special mark of wisdome was it then accounted to have two Laws in the same Territory the one of the Romans for private matters between man and man for which it was so sufficient full and equal the other of their own to direct and steer the publick upon all accidents which they meant should superintend and reign in chief over and above the other But further not onely the use practise and observation of the Roman Law has been in danger to be quite lost and wholly set aside but the very books and writings of the Law have run very hard fates also ut mirum sit vel has qualescunque juris Romani reliquias superesse sayes Baldwine in his Prolegomena that it may be admired we have such parcels thereof extant at this day It was a most unhappy fate and very worthily lamented by all learned men that after Justinians composition of the Law was perfected and set forth with a command that that onely should be the Law of the Empire omnibusque antiquioribus quieseentibus nemoque audeat vel comparare eas prioribus as Justinians own words are f L. 2. God De Veter jur cuuclcand all the old Laws being quite put to silence nor that any should dare to make comparisons between them the very Law-books themselves being 2000 Volumes as we said before whereof Justinians new work was but a choice Collection raised out of a confused and an indigested heap and thence put into order did thereby lie neglected so long that in process of time they perished quite and were never seen more Questionless had they been preserved and transmitted unto posterity entire they would have acquainted us with much more of the Roman Antiquities then we now know the Civil Law that we have would have been much better understood when we might have gone to the Original from whence it came and the contradictions now contended about so much would have been easily reconciled The sense of this loss did cast Sabinus Floridus who charges it upon Justinian into such an extasie of indignation that he sayes Justinian died mad with the consciousness and horrour of suppressing these books and judges him not worthy ever to have been born But Franciscus Philelphus goes a strain higher plainly imprecating in this manner O ntiuam superi si quid mortalibus usquam Justitiae reliquum te Justiniane sub imis Manibus ardenti plectant Phlegetonte jacentem Post quà m tanta Italis millena volumina legum Principe te clades te principe pestis ademit Now though I fee not any ground to justifie so much bitterness nor indeed deservedly to make that renowned Emperour authour of such a crime being especially thought by the most not guilty yet since those books of Law that are left us which are but an extract from the other are of such high price and value surely when the other perished there was lost a very great treasure Again as there were three Cities famous above all others for the nourishing and maintaining of the study and learning of the Civil Law to wit Rome Berytus and Constantinople In which three Cities onely by an express constitution of Justinian g Digest Proaem parag 7. it was to be read and taught to others and no where else throughout the Roman Empire so it was not possible but the books and writings thereof must be lost and destroyed as indeed they were in the direful events of those Cities For Rome was often spoiled sack'd and laid waste by rude and savage people who would not spare books or learning that they knew would detest condemn and censure them and their barbarous actions Berytus was so utterly swallowed up in an Earthquake that nothing of the whole City was left above ground Constantinople in Zeno the Emperours time in the year 478 was almost wholly destroyed by fire in which perished amongst othings an hundred and twenty thousand books and is since fallen into the power and hands of the Turks professed enemies to civility and learning the same being taken by Mahomet the Great in the time of Constantine Palaeogolus the last of the Graecian Emperours in the year 1452. Thus has it fared with the very books and writings of the Civil Law but such has been the providence of the Almighty in preserving this necessary piece of learning that neither any nor all of these disasters have been powerful enough to extinguish it For although it seemed sometimes to be buried and no where visible yet at last by one means or other it was restored and brought to light But to none more is the honour of this restitution given then to the Emperour Lotharius the second who undertaking a war against Roger King of Sicily and Naples after he had taken by storm the City of Amalphis in Apulia he there found the chiefest and most authentick part of the Civil Law the Digests which was from thence conveyed to Pisa and afterwards to Florence where they have been kept with the greatest care and had in much veneration and esteem h Mr Selden sayes it is there kept in the Dukes Palace and is never brought forth but with Torch-light and other reverence Notes upon Fortescue ad cap. 17. in tin and this was in or about the year 1137. The other parts of
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 considerations whatsoever much lesse did they look at the particular benefit of any private men But as in publick matters salus populi was suprema lex so in private quod aequum bonumque fuit was that which made up the Law with them the dispensation of true right and pure equity was thought the most effectuall means to preserve the whole And hence it is that the sincere equity of the Roman Civil Law has been owned and the wisdome of it greatly admired by those to whom the exigencies of the Roman State and the interest of the Rulers of it could not be known Ninthly this Law is so well tempered and so indifferently composed that it may be accommodated to any kind or form of government so that be the Supreme power in one or be it in few or be it in the whole people it is equally useful for them all for Rome came under all these severall formes of government and some part of the Civil Law was made under each of them Lastly Triall that is the true Touchstone of Laws as of all things else whatsoever has exalted it above all other Laws of Man First in the general use of it every where about the World Secondly in the continuance of it to this present time after the State and Government of Rome has long ago ceased to be and against all stormes and tempests that have come Thirdly in that all States and Common-wealths have exceedingly flourished that have made use thereof And yet we are not such vain exalters of our own profession as to think or boast that the Civil Law has the force or property of a Law within it so as to prescribe to or bind forreign Nations h Leges non allegantur in curiâ—s Principum aut regum pro authoritate sed prorationâ— sui Jas in l. 19. co de Collat. nu 10. Non quia sunt leges Imperatorum sed quia sum natuâ—â—les bonae non quia lex hâ—â— dicat sed quia Retio sic vult Baâ—d in l. 13. co Desent interloc onâ—â— judic But we rather say by any authority of its own it commands and necessitates no where and yet as reason must alwayes prevaile with men that are rational it informes illuminates and perswades every where We say this further that though in matters of publick government the Municipal Law bears sway and is practised altogether in every Nation for those must be managed by such prudent wayes and means as the supreme Governours from time to time shall think most necessary without being tied up to any certain rules even of their own much less to any of the Roman Empire yet in private controversial things arising between man and man some special matters of more publick and general concernment excepted the Civil Law is much more practised and more frequently used then the Municipal Because in respect of the great variety and multitude of such cases the Municipal Law can declare but little that is certain in them So that though we cannot say that forreign States are governed by the Civil Law yet the suits and differences their subjects have one with another are for the most part judg'd and ended by it But the admittance of the Civil Law in these cases how general soever they be is voluntary and free without either necessity or constraint And we do so little think that the want of a compulsive and binding power does in any part obscure the lustre of it as in our judgments that very consideration does commend it much more and makes the merit of it much more conspicuous and splendid for to be awed by an imposed Law argues the superiority of the power that imposes it and the servility and subjection of the people that are under it but no worth and excellency in the Law it selfe for peradventure if they were left to their full freedome they would chuse to live under some more natural and more reasonable Law But when a Prince and people shall of their own accord without direction or command from any other freely embrace a Law and desire to be tried and judg'd thereby as forreign States do by the Civil Law it is an evident token that this free assuming of such a Law proceeds from some known singular vertue and rare goodness that is in it for else they would not being at liberty be so unanimously guided and directed by the same CHAP. IX The admittance and sway of the Civil Law in forreign parts is yet further verified by the testimonies of Sir Tho. Smith and Dr Hakewill the one a Statesman the other a famous learned Divine of our own and by some other remarkable institutions within this Nation I Have before told you what a great and renowned King of this Nation and five great Sages of the National Law have said concerning the fame and practise of the Civil Law in forreign Nations I connot pass by what Sir Tho. Smith a most famous Scholar and States-man of this Nation and one who in Queen Elizabeths time went Embassadour to the King of France and so had the opportunity to know more of this matter then those that sit at home has written obiter to the very same purpose in his book De Republica Anglorum Wherein after he has delineated and set forth the true state of the policy and forme of government within this Common-wealth and wherein the Laws thereof do greatly differ from that which other States do observe and follow in his third book ca. 11. he closes in this manner Administrationis Politiae Anglicanae formam quasi in tabula breviter vobis ad intuendum proposui Quid suum habeat quidque ab aliis rebuspublicis Gallorum Italorum Hispanorum Germanorum diversum quae civilibus legibus Romanorum in Pandectas Codicem à Justiniano redactis reguntur enarravi The form of Policy and government of England saith he I have as it were in a Map briefly set down before you to be seen what it has proper to it self and what differing from other Common-wealths to wit of France Italy Spain Germany which saith he are swayed by those Civil Laws of the Romans that Justinian did put into the Digests and the Code I have likewise shewed you The testimony also of Dr Hakewill a great Divine of this Countrey also is as full to the same matter for in his learnned Apologie of the power and providence of God i Lib. 3. ca. 7. sect 3. he does not onely rank the Civil Law next to
in their gallant and heroick minds they bore did propose to themselves no other end but their temporal honour and earthly greatness not once thinking of doing honour to the great God nor looking towards any heavenly felicity that might follow after this life ended having not yet been taught or heard of any such thing yet it must be acknowledg'd that the effects which have flowed from their desire of glory and rule have been singular and admirable amongst which their 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 and attentively fix their eyes upon those examples And before him Tully as Lnd. 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 sets 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 Monarchiall Romanorum conservasse propâ—gasse ut simul propagaretur honesta eorum 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 knew 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 Romani trium pulcherr â—imarum virtutum justitiae inquam fortitudinâ—s ac prudentiae laudibus imperatoriisque artibus cumulaeti populos omnes in sui admirationem converteruâ—s Bodinde 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 Ensigns 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 Orat. 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
Justinians frame and Collection were found at Ravenna about the same time These books were no sooner pull'd as it were out of the dust but by the same Emperours command they were every where divulged taught in Schools and Universities up and down the Empire the barbarous Laws as it were silenced and these in practise made the rule for all Tribunals And indeed the fame and reputation of them so spread all kind of learning reviving with it at the same time that in a little space of time it got footing also with the other sciences in France Spain and Italy and in all the Western part of Europe where it has been in greatest use and highest account as well in studies as in Judicatories ever since to this very age of ours Nay the Civil Law after it was once restored and taken notice of having long lain hid and concealed drew the hearts and studies of men after it in such wonderful manner and grew to that mighty eminence and power that the most were intent upon the study of it and but few in comparison lookt after any other learning Giraldus of Oxford charges it as a fault upon the students of his time and tells that one Martin a Clergy-man did sharply reprove the University of Oxford at a publick congregation for devoting themselves wholly to that study neglecting all other learning saying quòd leges Imperiales reliqua scientias omnes suffecaverant the Imperiall Laws had swallowed up all the other Sciences Also Daniel Morlaes in the same Century being in Henry the seconds time writes that the Law was so much studied in Oxford quòd pro Titio Seio Aristoteles Plato penitus oblivioni traderentur that Titius and Seius were minded altogether and Aristotle and Plato were quite forgotten And Roger Bacon that had made himself eminent in all the sciences did upbraid the Bishops of the same age for minding Divinity so little adding quòd cavillationes juris defaedarent Philophiam the sophistry of the Law would corrupt the true Philosophy Stephen Langton Arch-Bishop of Canterbury took up the same complaint in Henry the thirds time against the Monks of his time qui relicto agro veri Booz nempe sacra Scriptura ad alium agrum id est scientiam secularem pro cupiditate terrena transirent who through greediness of filthy lucre which was then to be gotten chiefest from the Law did forsake the knowledge of the Scriptures and hunt after secular knowledge The like lamentation was made by Robert Holcot of the order of the Praedicants in Northampton-shire in Edward the thirds time leges canones saith he istis temporibus innumerabiliter sunt foecundae concipiunt divitias pariunt dignitates ad illas confluunt quasi tota multitudo scholarum his diebus The Laws and Canons are immeasurably profitable in these times riches and honours spring from thence almost the whole number of Scholars resort thither for indeed the greatest professours in Theologie that were did so little content themselves with that one way of advancement that they did frequently assume degrees in Law to fit and qualifie them for other preferments also But sure it is these complaints and objurgations of private men could so little keep this luxuriant growth of the Law from spreading that the very Edicts and Decrees of Princes could not bring it down Matthew Paris in his History upon the year 1254 and in the Additions pag. 883. Edit Noviss makes mention of a constitution made and published by Pope Innocent the fourth by which it was ordained that no professour of the Laws should be promoted to any Ecclesiastical dignity in France England Scotland Spain and Hungarie and that from thenceforward the Imperial Laws should not be read in those dominions if the Kings and Princes so thought fit Pope Honorius the third forbad the reading or teaching of the Civil Law in Paris in the year 1220. i Ca super specuta ext de privileg Those Popes thought that the restraint of the Imperial Law would be a ready means to bring into request the Canon Law which was as it were but new set up Upon design therefore to bring into credit their own Ecclesiastical Law rather then out of any dislike of the Civil were those prohibitorie Decrees made however they very much failed of that effect that was intended them for we may have observed to this very time that all those Christian States that do acknowledge the Popes authority and power have so equally divided their respect between both those Laws that they have appointed to each their proper function designing the one to be serviceable to Civil matters the other to Ecclesiastical and so by such moderation have done very equal right to both At the same time that the Civil Law was publickly read at Bononia by the means of Lotharius the second it was brought into England by Theobald the Arch-Bishop of Canterbury and being publickly read in Oxford by Vacarius it grew so general a study and other learning was so much neglected upon it that King Stephen incensed thereat sent forth a peremptory command that it should be read in England no more that Vacarius should forbear to teach it any further nor that it should be lawful for any to keep any books of the Roman Laws by them Sed parùm valuit Stephani prohibitio nam eò magis invaluit virtus legis Deo favente quò cam amplius nitebatur impietas subvertere sayes Mr Selden k Dissertat ad Flet. cap. 7. parag 6. But King Stephens prohibition did prevaile but little for the power of the Law God prospering the same waxed the more vigorous when malice did most strive to destroy it Charles the ninth and Henry the third of France did also by sending forth their Edicts forbid the Civil Law to be taught in Paris or that any Degrees should be taken in that faculty Philip the fair and the Parliament of Paris anciently did straitly charge that no man should dare in any pleading to urge or cite the Roman Law against a special Law of the Nation In Spaine it has been made no less then a capital crime to offer or alledge the Roman Law as compulsive or binding And surely it is a high indignity to any Prince to have any sorreigne Law set up against and to beat down his own And therefore in the erection of Universities in France the Kings have alwayes declared that their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the subjects should be any way bound thereunto lest they should seem to derogate from the Laws of their own countrey by advancing the Laws of strangers l Bodin de rep lib. 1. ca. 8. These and such like edicts declarations of Princes have been alwayes of full force and power as most justly they ought to be to limit the vast and universal power of the Civil
of little use when for the ordering of those matters we may be supplied from the fountain it self from whence the Canon Law has got it But suppose there were such a necessary concomitancy between these two Laws and that the use and practise of the one would be a sure inlet to the other as some do too fondly imagine does it therefore follow that the errours and superstitions of the Church of Rome must needs creep in too No more surely then it follows that because the old Law that is full of Jewish rights and ceremonies is joyned to the Gospel and that we read both together we must therefore presently all become Jews And thus having satisfied all scruples that are usually made against the continuing the Civil Law within this Nation I shall but shut up all in this conclusion That seing the Roman State out of their wonderful wisdome and great experience in government and the several affairs of the World did devise a Law not onely proper for themselves but so mainly useful to other Nations also and that the industry of the learned working upon that foundation has by method order Rules expositions illustrations and treatises of all kinds reduced it to a perfect and compleat Art and Science of Law whereby the right skill and way of doing the purest and most natural justice whatsoever the case be may be taught and known And when it has from thence been ingrafted into our own and the other Universities of Europe and made one of the three chief Sciences there to which the rest of the Arts serve as it were as handmaids and servants and all for the directing of men and Nations how they should deal honestly and uprightly with one another seeing also that our very Martial affairs cannot proceed wel nor be rightly regulated without it and that those Nations whom we have most dealings and intercourse withall and to whom we should despise to be any whit inferiour do not onely keep it but also have no other profession of Law besides it and do think their own private Laws to be very insufficient and lame without it and that divers matters and causes amongst our selves will remain without any Law at all except the Civil Law be kept to order them as it did before Lastly when the Civil Law comes to help and assist and not to infringe or take away from the Municipal Law at all If we shall now abandon it and cast it out of our coasts or which is all one if we shall reward and encourage it so slenderly that no man will either think it worth his pains to study or his cost to take any degree in it to which pass it is most visibly come already I say if we shall still thus neglect or despise it either way we shall not onely set light by the Policy and Wisdome of the Romans which all other people are studious to imitate and come as near as possibly they can but we shall also deprive our selves of one excellent means to improve our knowledge and reason by our justice without it being guided by illiterate and irrational principles will be less satisfactory to the people our skill in the discipline of War and in the Laws of Armes will be very defective the very harmony of learning that has so long flourished amongst us will be dissolved when so considerable a part as the Civil Law is broken off from it other Nations will grow too wise and subtil for us and will turn and winde us as they lift and our justice at home will be lamed not being competent enough for the matters we deal in The consequence of all which will be mischief at home and dishonour abroad which all good Patriots and lovers of their Countrey will lament to see An Index of the principal matters contained in this Book A ARts and Sciences have their beginning growing falling and rising again fol. 50 Argument drawn from like case is unsufficient fol. 41 Admiralty Court proper to be managed by Civilians onely fol. 148 Athens was the place from whence the Civil Law first came fol. 29 103 B Business of other men if I expend any money or care upon though without their privity the Civil Law will see me satisfied fol. 90 Books of the Roman Laws when and where found after that learning had lain neglected a long time fol. 122 Barbarisme will be let in where the Civil Law is expell'd fol. 134 Books of the Roman Laws that were before Justinians Collection after that came forth were quite lost fol. 121 C Children if no disposition at all were made by the father did equally divide the whole estate between them by the Civil Law fol. 15. Enjoyned so to reverence their parents that they could not sue them without leave nor be witnesses against them nor marry without their consent nor charge them with any criminal act fol. 11 Collusion odious by the Civil Law and makes the act void fol. 13 The Civil Law agreeable not onely to the first principles of nature but also to others never so much remote fol. 21. made to rule the mightiest Empire that ever was and since propagated to other Nations 29. and how it came so 30. it teaches men to be virtuous and innocent 48. though sometimes in obscurity yet never to be quite lost 50. it handles publick matters very sparingly 52. custome must agree with reason 36. customes are more acceptable to the people then Laws are ibid. Cases commonly all differ from one another fol. 41 The Civil Law containes the whole reason of man both private politick and that of Nations 53 63. it runs more in a convincing then commanding style 65. most conformable to the Divine and eternal Law 66. grown to be the common authority to justifie or condemn humane actions 67. it avoids niceties and follows the true intent onely 67. it will not allow of some things because they are not worthy nor honourable though otherwise lawful 70. it is full of elemency mildness 71. it prefers equity before rigour 78. all persons of what condition soever may read their duties in it 93. The fundamentals thereof fetcht from other states the best governed that then were fol. 103. 29 Civil Law how it may be admitted into England without any inconvenience fol. 108 Civil Law almost distroyed when the Roman Empire was invaded by barbarous people 114. 116. the first books thereof being lost did much hurt and injury to those that we have now being but an extract of them 121 many of the books thereof to an infinite number perished and were lost by the sad fates that befel Rome Berytus and Constantinople 122. yet under Lotharius the Emperour it was again restored ib. and afterwards grew so great that other learning was neglected and all did study that onely 123. The Edicts of Princes how severe soever were not able to suppress it 124. no where so much in use as in Spain and France though they have both made sharpe