loco temporique conveniens necessaria utilis maenifesta quoque ne aliquid per obscuritatem in captionem contineat nullo privato commodo sed pro communi civium utilitate conscripta 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 tune 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 immersa 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 Drus 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 Lex nihil allud est nifi recta à numite 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 occidere 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 quia defensor propriae salutis in nullo peccâsse videtur sayes Gordian the t Lib. 2. Co. Ad l. Coâ—nel 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 nâ—c ad restitutionem damni obligant sayes uDe Ju Bill 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. Cornâ—l de Sicar sect 5. Inst. dc 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. fisc 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 defexdendi sunt sayes a Lib. 18 Sect. 9. Dig. de Quest Paulus subitis accusatorum criminibus opprimantur quamvis defensionem quecunque tempore post ulante reo negari non oportet adeo ut propterea differantur proferantur custâ—diae 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 vel 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 doctis mos gentibus seris natura ipsa praeseripsis ut omnem semper vim à corpore à capite à vitaesuae propulsarent Cic. pro Mil. 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
further proof is excluded so that the next step is to judge and pronounce finally upon the whole matter And although the Roman Empire was the largest and most extended that ever was and the multitude of causes must be supposed to be great too yet no Civill cause whatsoever was to last and continue longer then by the space of three years nor any criminall matter 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. Go. de Judis 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 f D. sect 6. Inst cod Verbum plicendi aut Placiti non volupt itis non libidinis non etiam absolu'ae est voluntatis sod justitiae rationis consilii 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—precht Inst. de rer dâ—v 〈◊〉 p inc 〈◊〉 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 lifteth as oft as they stand in his way for that is contradicted expresly by divers Texts of the Civil Law b L. 4 co de legib l. 23. de Dâ—g 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 be 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
The Law of Laws OR THE EXCELLENCY OF THE CIVIL LAW Above all other HUMANE LAWS WHATSOEVER Shewing of how great use and necessity the CIVIL LAW is to this Nation By RO WISEMAN Dr of the Civil Law Ea verè praestabilis est scientia quae in foederibus pactionibus conditionibus populorum Regum exterarumque Nationum in omni denique belli jure pacis versatur Cicero That is truly an excellent knowledge which is conversant about Leagues agreements the several constitutions of People Kings and forreign Nations and lastly in the whole Law of War and Peace LONDON Printed by J. G. for R. Royston at the Angel in Ivy-Lane M.DC.LVII 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 again 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 a gain 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
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 teacheth should be made the subject of a Law is no superfluous but a profitable thing p. 22 CHAP. III. What is here meant and intended by Reason p. 24 CHAP. IV. That Reason is not so strictly required in the Law that orders the affairs of State as in that that settles the differences that arise between man and man p. 33 CHAP. V. That the customes of a Nation ought in like manner to agree with reason p. 36 CHAP. VI. Where Law or custome is wanting to judge by president or example has no defence in reason p. 38 CHAP. VII That they are great advantages which a Nation has by ruling by a such a Law as is rational p. 46 CHAP. VIII That Christian Nations having entertained the Civil Law into their Territories have thereby acquired to themselves the most rational Law that has been ordained as by the constitutions thereof will appear p. 51 The Arguments of the Chapters of the Second Book CHAP. I. THat the greatness and the splendour of the Roman Empire does evidence the singular virtue of the Law it self to which as to its proper cause it may be ascribed page 97 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 p. 103 CHAP. III. That time and intervenience of fatal Accidents that has swept away so many States together with all their Laws and has quite abolished the Roman State it self has not yet been of force to abolish the Roman Civil Law but that it is extant still p. 110 CHAP. IV. That forreign Nations in doing of right between man and man do mainly practise and make use of the rules and dictates of the Civil Law p. 128 CHAP. V. The general admittance and use of the Civil Law in forreign parts is acknowledg'd by our selves here in England p. 133 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 p. 139 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 jayn 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 p. 144 CHAP. VIII That the reasons are strong and weighty upon which so many forreign States do direct and order the business of their Tribunals most by the prescript reason and equity of the Civil Law p. 153 CHAP. IX The admittance and sway of the Civil Law in forreign parts is yet further verified by the testimonies of Sr 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 p. 159 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 p. 164 CHAP. XI The Art and knowledge of doing the purest right and most natural justice is laid down in the books of the Civil Law and how it came by degrees to that perfection that now we see it in p. 166 CHAP. XII An Answer to the main Objections that are now adayes made against the continuance of the Civil Law within this Nation p. 173. VVESENBEC Parat Dig. De Just jur nu 17. IN constituendo expoliendoque jus Civile Populus Romanus tantum reliquis Nationibus velut gloria belli praestitit ut si omnia omnium gentium instituta mores leges in unum conferantur nequaquam sint cum his Romanorum legibus institutis prudentia aequitate pondere ubertate ullo modo comparanda The people of Rome did not onely go beyond all Nations in the world besides in renown for their warlike enterprizes but so much in establishing of Laws too That if all the Laws and customes of all other Nations were all laid together they would come far short of the Roman Laws both for wisdom equity weight fulness LEX LEGVM OR THE LAW OF LAWS c. CHAP. I. That a Law ought to be agreeable to true Reason The first Book THere is nothing under the Sun that doth more conduce to the Prosperity and Peace of a Nation then fitting and well-composed Laws In the framing whereof those that have the Ordaining Power must be heedfull to observe many things to make their Lawes proportionable to so happy and so blessed an end A Law must not enjoyne any wicked ignominious or unbeseeming things these being in intendment of the Civill Law impossible Quae facta laedunt pietatem existimationem verecundiam nostram ut generaliter dixerim contra bonos more 's fiunt neo facere nos posse credendum est sayes Papinian a L. 15. Co. de condit Inst Those actions which wound Piety Reputation Modesty or in brief are generally disallowed by the practises of sober men may be reckoned in the number of those things which Nature admits not to be done It must be not obscure but certain in the Intimation just in the Precept profitable in the Execution agreeing with the form of Government customes places and time where and when it is to be applyed It must be sufficient for the defence of Propriety for the encouragement of Labour for the safeguard of the Subjects persons for determining Controversies for reward of noble Actions and excellent Arts and rare Inventions for promoting Trade enriching the People and must wholly advance the publick good But above all things the care of the Legislative Power ought to be solicitous in nothing more then to frame and fashion their Lawes b Plutarch saying that Kings ought to be governed by Lawes explains himself that this Law must be a word not written in Books and Tables but dwelling in the mind a living rule the interiour guide of their manners and monitors of their life by that great and exemplary pattern the Law of Nature and to enact or decree nothing dissonant unto true inbred and Natural Reason whereby a Man worketh according to God according to himself Nature the universal order and policy of the world quietly sweetly and as silently without noisâ—… a Ship that is not driven but by the naturall and ordinary coâ—â—â—â— of the Water For when the Wisdome and Power of God first bestowed upon Man Vnderstanding and Reason he intended them
crosse and encounter common sense and natural Reason are no fitter to be styled Laws then the dead Carkasse of a Man that is dest tute 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 contra fecerint quam polliciti professique sunt quidvis potius tulisse quam leges They that did promulgate to the people pernicious and unjust Laws since they did clean contrary to that that they alwayes promised and professed to doe they might better be thought to enact any thing else then Laws And though it be never or very rarely seen that any State doth suffer any law to passe them which doth directly crosse the chiefe and fundamentall Laws of Nature or which opposes the first and main principles of common Reason as to give direct licence to Atheisme Theft Adultery Homicide invading of the rights or possession of others Breach of Faith or Covenants Rebellion against Magistrates Disobedience to Parents abandoning of Children or such like for this were too odious and detestable and would presently dissolve all society and government Yet the care of a Legislator doth not determine here but must extend further also if they will have their Laws to be of one complexion and likenesse and all to agree with the Lawes of Nature and the Dictates of sound Reason for to each of those first and fundamental principles there are divers inferiour things and actions appertaining which doe mediately or immediately depend upon and refer unto them standing some in a nearer others in a remoter distance from them but all so knit and conjoyned with the first and main principle to which they are subordinate and do as it were wait upon that if any of them be setled by a Law or practised otherwise then they ought to be the first and great principle also by consequence is violated broken or at least an occasion offered to violate and break it and therefore the Legislators care must be to settle these inferior and subordinate things also in such wise as that they may not encounter with any chief or fundamental rule of Nature to which they may have any reference or application For instance That Parents should educate their Children and supply them with maintenance is a Law proceeding from Nature And though no humane Law was ever found that discharged Parents of such their duty yet if a Law shal leave it free to a Parent when he dyes to give away all from his own Children to a stranger or to dispose of all to one child without making any provision for the rest is not that fundamentall Law of Nature thereby consequentially infringed and broken By the Roman Law therefore which does strictly tye all Parents to this Duty f Go. de Alend Liber there is such a proportion due to Children out of their Parents estates when they dye as the Parents but upon certain causes just and true cannot give away from them which was the third part if there were four children or under or half of the whole substance if there were more amongst them all the rest they might freely give away to whom they pleased And this the Law made so sure to them that though the Father for some offence did suffer Death and his Estate was confiscate yet half the Estate should goe to the Children notwithstanding Ne alieno admisso graviorem poenam luerent quos nulla contingeret culpa g Lib. 7. dig dc Bon. damuat Lest the Fathers fault should prove a sharper punishment to them that offended not except the fault were Treason in which case for terror to others they lost all Vt charitas liberorum amiciores parentes reip redderet h Lib. 8. dig quod metus caus sect fin That their very affection to their Children knowing how greatly they were like to suffer after them might make them timorous how they so offended Likewise if the Parent shall make no Will nor make any disposition of his Estate in his life time dut dye intestate if when one of the Children hath entred upon his Fathers Estate though by lawfull Aathority the Law of a State shall adjudge the whole Inheritance unto him and not admit any of the rest of his Brethren and Sifters how many soever they be to divide or to have any share with him neither in reall Estate nor personal surely this is a contradiction to that Original Law of Nature that bindes Parents to provide for all those that are of the same Flesh Blood with them for what themselves cannot doe being dead their Estates ought to performe The Civil Law therefore making no difference between Land and Goods nor between Eidest and Youngest nor Male and Female divides the whole Estate reall and personal equally amongst the Children Ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem addicit velut ad debitam successienem eosvocando sayes i D. l. 7. Dig. de Ben. damn l. 7. Dig. si Tab. testam null s 1. Paulus There is as it were a secret Law made by Nature her selfe that settles the Parents Estate upon the Children calling them to succeed as in their proper right And Omnia quae nostra sunt liberis nostris ex voto paramus sayes k Lib. 50. Dig. de Bâ—â—â— libert sect 2. Tryphoninus All that we doe possesse we professedly destine to our Children Neither does it give one childe any advantage against the rest that he has first lawfully got into possession for he has but thereby made himself subject to be sued by the rest to come to a Partition with them l Tot. Tit. dig Co. Famil ercise for Action to divide being once brought the Judge is told by m Lib. 25. sect 20. Dig. Eod. Paulus what he must doe Index familiae erciscundae nihil debet indivisum relinquere The Judge of a Partition ought to leave nothing undivided A Law then that forbids Parents to cast off the care of their Children as nature does does not agree with Nature nor with it selfe neither if it does not as the Civill Law does make its other constitutions suitable and put it out of the power both of Parents and Children by fraudulent wayes to make their grand Law of Nature and Dictate of Reason fruitlesse and of no effect Likewise it is not sufficient that the Law of a State has not declared any thing against Honour Reverence and awful respect which Nature it selfe has enjoyned Children to yeild unto their Parents except it does dispose and order the actions and demeanour of Children answerable to that very duty for if a State shall give Children a freedome to bring like actions and accusations against their Parents as against others or to Marry without their consent or to give in evidence against them or shall not punish
Order Decree or Judgement but against those onely that were first call'd to see it done And therefore every judiciall act done without warning given is accounted surreptitious and declared void and null p Marant spec part 4. Distinct num 10. The effect of which nullity is that as to him that was absent and not heard the Cause is to begin againe Judicatum tantum inter praesentes tenet sayes q Lib. 47 dig de re Judic Paulus Those that are in Court onely are bound by that which is decreed Neither shall a man lose his right for want of witnesses to prove it for if the matter was transacted between him and his adversary onely so that his adversary being brought upon his Oath must need confesse the whole matter the Law will enjoyn a man to answer though against himself and to his own prejudice rather then that the truth shall suffer and wrong shall prevaile I may take the same advantage also if my witnesses live afar off or that I would avoid the trouble and charge of examining them or that my adversary will confesse more to my benefit then my witnesses will be able to prove And he that is cast by his own confession is more powerfully condemned then he can be by any kind of evidence whatsoever r Confessio est probatro probata Neque ullae est probatio illa major l. 1. Dig. De confess Vulteii Ju isp Roman lib. 2. cap. 2. for that cannot be subject either to mistake or falshood as other testimony may be But witnesses are then of use if he denies what I charge upon him Who if they be farre distant or through Scknesse Imprisonment or other occasions be not able to come the Law hath a ready way to relieve me for I may have a commission to examine them where they live It were too great an oppression that I must lose my right because my witnesses cannot be brought to the Barre Insomuch as if they be travailed into forreign parts I shall have Letters of Request granted me to the Magistrates of the place where they remain praying them to examine them upon the matter in issue and to transmit their testimony else regularly by the Civil Law they are to be examined in open Court that it may be seen whether their countenance does not contradict what their tongues declare Å¿ Lib. 3. Sect. 3. dig de Test Gothofred ibid. Neither does the Civil Law require direct and positive proofs onely but it will admit of strong and forcible presumptions also that by arguments of conjecture drawn from one thing to another brings forth the certainty of the thing in issue Par est probationi praesumptio quod quidem ad effectum attinet quiae pro probatione habetur sayes t Pâ—rat Dig. de prob praesumpt num 14. Wesenbeck Presumptions are equivalent to proofes and there is the same effect in both And if a presumptive proof were not as effectual to carry the right as any other kinde of evidence in vaine did Menochius bestow his paines when he made that very long and most elaborate Treatise of that subject onely But yet no proof whether it be presumptive onely or whether it be direct and evident to the thing it selfe is sufficient except it be made out by the testimony of two witnesses for by that Law Testimonium unius est testimonium nullius One witnesse and no witnesse at all is all alike And so Constantine the Emperour hath very emphatically declared in these words Manifestè sancimus ut unius omnino testis responsio non audiatur etiamsi praeclarae curiae honore praefulgeat u L. 9. Colde Test We expresly require that the testimony of one witnesse be not taken although he hath the stamp of highest dignity upon him for it were hard and dangerous that a mans whole right and interest of what value soever it be should depend upon the testimony of a single person onely who if he be honest and sincere yet through want of good observation or by a failing memory may report the matter of fact otherwise then indeed it was Yet in matters of small prejudice and value the Civil Law does allow of the testimony of one witnesse if the Plaintiffe himself can swear the thing in demand is true for in that case his averring upon Oath as much as his witnesse hath sworne doth supply the testimony of another winesse x Mincing cent 1. observ 68. Howbeit the Civil Law hath a further care yet for before it will suffer any mans right to be judg'd away from him it will see not onely a competent number of witnesses but they must swear of their knowledge too y L. Neque Natales Co. de Prob. and it does cast a very considerate eye upon their reputation and quality also It gives way therefore to the proving of any remarkable exceptions that can be brought against them Testium fides sayes Callistratus diligenter examinanda est Ideoque in persona eorum exploranda erunt inprimis conditio cujusque utrum quis decurio an plebeius sit an honestae inculpata vitae aen vero notatus quis reprehensibilis an locuples vel egens sit ut lucri causa quid facilè admittat vel an inimicus ei sit adversus quem testimonium fert vel amicus ei sit pro quo testimonium dat Nam si careat suspicione testimonium vel propter personam à quae fertur quòd honesta sit vel propter causam quòd neque lucri neque gratiae neque inimâ—citiae causa sit admittendus est z Lib 3. Dig. de Test The sincerity of witnesses is strictly to be enquired after Therefore as to their persons the condition of every witnesse must be examined whehe be a Magistrate or a common person whether he be of good and unblameable life or whether he lye open to just reproof or hath been any way aspersed whether he be able or necessitous so that he may be tempted to transgresse for filthy lucres sake whether he be an enemy to him against whom he comes to testifie or whether he be gracious with him whose witnesse he is to be for if his testimony be void of all suspition either in regard of his person as that he is honest or in regard of the cause as that there is neither gain nor affection nor enmity to corrupt him he is to be allowed Moreover it leaves a Latitude to every Court of Judicature to give such a time both to Plaintiffe and Defendant to prove as the distance of place from whence the proof is to be brought does necessarily require Neither does it exact that Plaintiffe and Defendant should prove within one and the same time but the defendant begins to prove his Defeuce after the Plaintiffs proof is ended a Speculat de rest sect qualiser num 20. When both have done the Judge is to conclude the cause by which all
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 quicquid 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 judicîum 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 bone malo non pertinet ad singulos omne judicium in civitate est illius qui glaedium belli gladium justitiae gerit Regulae boni mali justi injusti honesti inhonesti sunt leges civiles ideoque quod Legislator praeceperit id pro bono qnod 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 he forbids 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 cas instituunt tamen cùm fuerint institutae firmatae non licebit judici de ipsis 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 give b L. 2. Dig. de constit print In rebus novis constituendis evidens esse utilitas 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 Wills 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
constitution and language soever It was the common c Nihil principe diguius nihil magis optandum quà m dissidiorum ac bellorum inter popules arbitrum â—ieri ut olim Sâ—natus Populufque Romanus propter summam virtutis quam de se ipse concitarat â—pinionem Bodin de rep lib 5. ca. 6. Judge and Umpire to arbitrate the differences of other Princes and people It was the seat of Learning and receptacle of all learned men It continued flourishing many hundreds of years during all which time it dealt in affairs of the greatest consequence and variety and did increase in great plenty and abundance of all things and whatsoever was in any kind rare curious or exquisite in any part of the earth besides it was brought thither And therefore Athenaeus has not doubted to call Rome in express termes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Abridgment and Summary of the whole World as if Rome wanted nothing which all the other parts of the earth afforded or as if we ought to esteem it Orbem in urbs the wide World confined in that one City In congruity therefore of reason must it be concluded that a Nation in all other things so much superiour unto others must also have Laws and rules of conduct proportionable else could they never have brought to pass so great and glorious things as they did For by the benefit of wholsome Laws and prudent order is it that great atchievements are accomplished in a Common-wealth and such mighty works effected Hereupon Tully contemplating the Laws of Rome as well as their riches does deelare tautam sapientiam majoribus suis in jure constituendo fuisse quanta fuit in his tantis opibus imperii comparandia they shewed as great wisdome in framing their Laws as they did in getting the infinite wealth which their State then had And well it is observed and delivered by many later writers that in the Romane Empire the greatness thereof is rather to be imputed and ascribed to the wisdome of their Laws and Government then to their armes and valour And although in Vegetius his opinion Disciplina militaris acriter retenta principatam terrarum Romano imperio peperit Their strict holding to the rules of Martial discipline made the Romans Masters of the world yet Sulpitius the Poet will not give it to that onely for in his judgment Duo sunt quibus extulit ingens Roma caput virtus belli sapientia Pacis it was their wise government in peace as well as their success in war that did so highly advance their City for what their armes did get their Laws did keep according to the saying of Florus Viribus parantur provinciae jure retinentur Thomas Aquinas d Lib. 3. de Re. gim Prineip ca. 5. sayes that though they got the Empire first by injustice rapine and bloud-shed yet they did deserve to hold it and to have it established upon them for the good Laws they had ordained Saint Austin e Lib. 5. De civit Dei ca 12. designing to set down how it came to pass that God did so exalt and enlarge the Roman Empire and what actions were the cause thereof imputes it to their virtues and to their heroick and gallant mindes to their prudence and honesty rather then to their strength and power For he brings in Cato speaking to the Romans of his own time that had much degenerated from their Ancestors Think not saith he that our Ancestry brought the City into this height by armes if it were so we should make it far more admirable then ever for we have greater plenty and abundance of men more confederates a greater store also of armes and horses then they had But they had other means which we want industry at home equity abroad freedome in consultation and purity of minds in all men free from lust and enormity For these we have gotten riot and avarice publick beggery and private wealth riches we praise and sloth we follow good and bad are now undistinguished ambition devouring all the rewards due to vertue Nor wonder at it when each one patcheth up a private estate when you serve your lusts at home and your profit and partiality here in the Senate This is it that laies the State open to all incursion of others Again in the same place he sayes of them That they were greedy of praise and bountiful of their purses they loved glory and wealth honestly gotten Honour they dearly affected but through virtue offering willingly both their lives and their estates for renown The zealous desire of this one thing made them set aside all other inordinate affections whatsoever and hence they desired to keep their Country first in freedome and then in Soveraignty because they saw how baseness went with servitude and glory with dominion f Amorc primitùs libertatis post etiam demin â—tionis cupidit te laudis glo i. e multa magna seterunt And then concludes Wherefore saith he whereas the Monarchies of the East had been a long time glorious God resolvèd to erect one now in the West also which although it were after them in time yet should be before them in greatness and dignity And this he left in the hands of such men which he supposes were not the generality of the people but some few only but those very good and gallant men to punish the loud and crying guilt of other Nations And those men were such as for honour and dominations sake would have an absolute care of their Country whence they received this honour and would not stick to lay down their own lives for their fellows suppressing covetousness and all other vices onely with the desire of honour g Pro islouno vitio id est amore laudis pecuniae cupiditatem multâ— alit vitia corrum pentes And then in the fifteenth Chapter of the same Book speaking still of the Romans and the course they took in the prudent conduct of their affairs he closeth thus most excellently His emnibus artibus tanquam vera via nisi sunt ad honores imperium gloriam honor ati sunt in omnibus fere gentibus imperii sui leges imposuerunt multis gentibus hodieque liter is historia gloriosi sunt pene in omnibus gentibus Non est quòd de summi veri Dei justitia conquerantur perceperunt mercedem suam By these Arts as by sure steps they climbed to honour rule glory their name was magnified almost in all Nations they sent out their Laws to many Nations and they were obeyed there is almost no Nation but their Histories and writings mention them No reason have they to murmur at the justice of the true and high God they have had their reward h Terrenam gloriam excellentissimi imperii Deus â—orcessit ut redderctur merces bonis artibus corum id est virtutibus quibus ad tan tam gloriam pervenire nitebantur Although therefore the Romans
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
that was prescribed them by their former Rulers Nor is the danger of their revolting quite over till they have quite forgotten their first condition and till a total change is made of Laws Customes Habit and Language And who knows not that it is in the power of the Sword being well fortified to impose what Laws and Rules it self will upon a people who after a tedious and a destructive war will rather embrace an ill conditioned peace then run the hazard of a new war where they are sure to be swallowed up in spoil and rapine In this declining therefore of the Roman Empire many Provinces thereof being possessed by several invaders it is certain that the conquering people gave their own Laws to the conquered but ruled most a Iuxta illud Silii Vis colitur jurisque locum sibi vendicat ensis by power and arbitrary will In iis seculis sayes Dr Duck b Lib. 1. de Author ju civ ca. 7. speaking of the declension of the Roman greatness non erat aliud parendi dominandive jus quà m armorum potentia crassa literarum omnium ignorantia leges omnes barbaricae Gothicae Francicae Lombardicaeve sepultis jam legibus Romanis rerum omnium morumque confusio In those times there was no other rule but what the sword did give a gross ignorance of all literature the Laws all barbarous had from the Gothes Francks Lombards the Roman Laws lying now in the grave and indeed a plain confusion of civility and all things whatsoever Ludovicus Vives c Lib. 1. de caus corrupt Art mentioning the utter downfall that was of all learning at that time tells us also the politick reason that animated that savage people to deal so tragically with it Irrisae sunt ab eis linguae ac studia omnia saith he Nec solùm eis detractum est pretium sed contumelia addita seu quòd nollent quenque in victis plus sapere quà m victorem ut quisque esset doctissimus ita crassis illis hominibus inprimis erat suspectus tanquam vafer ad fraudes ac dolos maximè appositus sen quòd emolliri per haec veram virtutem opinarentur ac minus bello idoneos reddi cui omnia illi tum tribuebant laudem gloriam decus ex bello uno verum germanumque etiam sempiternum oriri rati They laugh'd at the variety of tongues and at all literature Neither did they onely distesteem them but they cast reproches upon them also either because they were not willing that any that they had now brought under subjection should be wiser then themselves who being blockish did cast a jealous eye upon those that were most knowing men as they that were subtil and fitted for all politick and wily practises or because they had a conceit that learning did too much soften and enervate valour and render men unfit for war in the which they thought all praise glory and renown did lie and that no where true and immortal honour was to be won but in war onely Which torrent of ruine then happening was the more unfortunate and fatal in regard through Italy and the Europaean Nations being thus infested that which is the Roman Civil Law now and was collected and put together by Justinian himself and doth bear his name though selected out of a great confused mass consisting of near two thousand Volumes that had been 1400 years a laying together by several Lawyers could not have any place then in Italy nor could ever get entrance into those parts for 500 years together after the death of Justinian Because this body of the Law that is now extant was compiled and put together at Constantinople after the Roman Emperours had removed themselves thither and kept out of Italy and the Western part of the Empire for all that time that those Barbarians were possessed of the same Howbeit it is no less certain that the ancient Civil Law that was in being long before Justinians time and that very frame and model thereof which was drawn together and raised out of those ancient foundations by Justinian himself was the sovereign and ruling Law at Constantinople and all over the East where the Roman Empire then was and was translated into the Greek tongue for the use of the people and there continued flourishing at that time when the West would not admit it So that it is to be noted that when it was driven or kept out it was by a barbarous people that followed all with fire and sword and that it did not suffer alone but all civility and learning was banish'd with it too and that it was never so extirpated from off the earth but it had a being and continuance somewhere And yet there was a part of Italie also namely the Exarchate of Ravenna consisting of ten Cities with the territories belonging to them which the barbarous people could not subdue nor make them change their governours government or Lawes who being still ruled by the Viceroys and Lieutenants of the Constantinopolitan Emperours were totally governed by the Roman Lawes also as they were before And after the collection of Lawes made by Iustinian was perfected and published and was now to be the onely Law for the whole Empire it was sent to and embraced by the Exarchate of Ravenna and there practised though no where else throughout Italie for 500 yeares together Notwithstanding it cannot be truly affirmed neither that even those parts of Italie which the Romans had quite lost and were made subject to this barbarous people were totally guided by another Law and had none of the Roman Law to guide them For although the Gothes ruled much by Lawes of their own prescribing yet Cassiodore writes that in the time of Theodorick and some of his successours the Roman Law that had been in use there before was also used still though but in a way of Subserviency to their own And Ataulphus fully purposing Romana omnia adeo in Gothicum nomen moresque mutare ut Romanum planè obliteraretur so to change all that was Roman into the way and fashion of the Gothick Nation that nothing that was Roman should remain any longer Mr. Selden out of Orosius d Lib. 7. ca. 43. sayes upon better consideration had he changed his resolution quite and did by all meanes strive ut Romanae restitutionis autor haberetur postquam esse non poterat immutator to be the chiefe setter up of the Roman policie which he saw he should not be able to throw down For the time therefore that the Gothes and Lombards were possessed of Italie the Code of Theodosius and some things taken out of the Gregorian and Hermogenian Codes and Gajus his Institutions Vlpians fragments and the Notes and sentences of Paulus all parts of the Civill Law and antienter then that body of Lawes whereof Justinian was the compiler were taken in and admitted into use together with their own Laws Those Provinces of France that are nearest
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 book has by variety of proof so sufficiently made it good already But yet it is worth the setting down what some of our own Countrey-men have in their writings acknowledg'd to the very same purpose and those especially amongst the rest whose interest and high valuation which they pass upon the Laws of their own Countrey will not permit them to ascribe more to the Civil Law then the just truth will bear And it is most observable what King James himself the learnedest of all modern Princes said here in a Speech made to no less solemn assembly then his Lords and Commons of Parliament u 21. Martii 1609. which we have extant amongst his printed works As a King saith he I have least cause of any man to dislike the Common-Law for no Law can be more favourable and advantagious for a King and extendeth further his Prerogative then it doth And for a King of England to despise the the Common-Law it is to neglect his own Crown Yet saith he I do greatly esteem the Civil Law the profession thereof serving more for general learning and being most necessary for matters of Treaty with all forreign Nations And I think that if it should be taken away it would make an entry to Barbarisme in this Kingdome and would blemish the honour of England for it is in a manner lex Gentium and maintaineth entercourse with all forreign Nations But I onely allow it to have course here according to those limits of jurisdiction which the Common-Law it self doth allow it And therefore though it be not fit for the general government of the people here it doth not follow it should be extinct no more then because the Latin tongue is not the mother or radicall Language of any Nation in the World at this time that therefore the English tongue should onely now be learned in this Kingdome which were to bring in barbarisme And in another speech in Star-chamber x 20 Iun. 1616. printed also God forbid saith he the Law of Nations intending thereby chiefly the Civil Law should be barred in this Kingdome and that for two causes one because it is a Law to satisfie strangers which will not hold themselves so well satisfied with other municipal Laws another to satisfie our own subjects in matters of Piracy Marriage Wills and things of like nature And again when he was so mightily pressing to have had an union of England and Scotland under the same policy of Laws as they had but one and the same King in a speech made upon that subject y Ult. Mart. 1607. extant in his printed works he told his two Houses of Parliament that in point of conjunction of Nations the Civil Law ought to bear a great sway it being the Law of Nations These are the expressions of a King the interest of whose Crown and Scepter and the prerogatives thereunto belonging did depend upon the favour of another Law and yet he positively and in down-right termes in the face of all his people avows the Civil Law to be the Law of Nations and that all transactions of Treaty and of Trade with forreign Nations were dispatched by the rule and reason thereof and that the authority thereof was so great in the esteem of strangers that they would rest satisfied therewith when no municipal Law could satisfie them But in that he avers also that when the people of England shall exterminate that Law which must needs be when the practice thereof is quite taken away or thrust into a poor narrow compass their honour will be obscured and they will be in danger to be over-run with barbarisme it was never so well worth the observing as at this present time And it clearly shews that wise and learned King did perfectly understand the true use of the Civil Law for as the language thereof must needs be a means to maintain learning which does civilize soften the minds of men so there is no sort of learning with the which the matter of it does not correspond and participate but above all it does afford more and better rules for civil living and orderly conversation amongst men and for righteous dealing each with other then any other study or learning whatsoever But this practise and usage of the Civil Law in forreign parts is yet better confirmed by the authority of those who studying and professing the Law of England have been alwayes jealous of the rising and growth of the Civil Law in this Nation For though they have desired to keep it low here for what reason I need not mention yet some of them have freely enough owned how much it is in use and practise in other Countreys Sir Francis Bacon in his Epistle Dedicatory to the Queen set before his Maximes of Law after he had told the Queen that Justinian the Emperour did gloriously and yet aptly call the Body of the Roman Laws proprium sanctissimum templum justitiae consecratum a true and a most sacred temple consecrated unto justice he sayes that it is a work of great excellency indeed as may well appear in that France Italy and Spain who have long since shaken off the yoke of the Roman Empire do yet nevertheless continue to use the policy of that Law My Lord Ellesmere Chancellour of England as Sir Francis Bacon was in his speech of the Postnati does expresly deliver that the Civil Law is taken to be the most universal and general Law in the World Sir John Fortescue himselfe Lord chief Justice of England and afterwards Lord Chancellour in King Henry the sixth's dayes in his book wherein he does so highly magnifie and commend the Laws England above the Civil Law yet he could say z De Laud. legum Angliae ca. 9. That Civiles supra humanas cunctas leges alias fama per orbem extollit gloriosa The Civil Laws throughout the whole World are advanced in glory and renown above all other mans Laws Fulbeck also another of the same profession and of great learning does agree with the former in these words a In his parallel part 1. Epistle to the Reader The Roman Laws saith he in the times of Arcadius Theodosius and Justinian recovered their strength and shining to all the Common-wealths of Europe as the Sun to all the climates of the Earth have for their worthiness and necessary use and employment received entertainment countenance and great reward of Emperours Kings and Princes Likewise Mr Selden a Graduate in the Common-Law but a
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 function is without drawing several wayes and clashing one against another or questioning each others power sweetly to joyn both in that most excellent and divine work of justice which may render the people of this Nation most quiet within themselves and honourably esteemed by others But lastly there is a strange conceit that has got into the heads of some men That the Civil and Canon Law are one and the same that they cannot be severed that if the one be admitted the other will have access also and the letting in of the Canon Law which was ordained by the Popes and the Church of Rome will open a wide gap to introduce all their superstition erroneous doctrine and prelatical discipline and so in time we shall become wholly Romish and Antichristian And truly I must confess that such a cause that might produce so dangerous an effect is not to be neglected but is to be very carefully look'd after But as in the one the supposition is greatly mistaken so there is no such cause of fear in the other not any such danger as is surmised for that these two Laws are the same or that they are inseparable is more then a small mistake They were made at several times long distant each from other by several authors and for several ends and purposes The Civil Law after it had been growing by degrees in a very long process of time as well under the people when Rome was a free State as under the Emperours being become voluminous and indigested the choycest thereof was pickt out and laid together by Justinian and that Collection was perfected in the year 533 and made the Law of the Empire whereof Rome was now no part or member but become the land of the Church the place for the Popes and Bishops of Rome to sit in Who though they made canons for the rule of the Church and Church-men long before yet the Canon Law that is now so styled came not forth into the world till above 500 years after the first part thereof which is Gratians decree being not published till the year 1151. The intent and purpose of the Civil Law was to order and direct all the Civil affairs of the great and spacious Roman Empire And the business of the Canon Law was to guide and govern the spiritual and ecclesiastical matters of the See of Rome the one was ordained to rule a State the other to discipline a Church These considerations then dividing and setting apart these two Laws each from other do manifestly shew that they are neither the same nor for the same end made nor yet inseparable for if that mighty State of the Romans could mannage and carry on so much business as they dealt in by the Civil Law onely what need has any lesser Nation now to make use of the Canon Law at all Besides there has been alwayes such a contention between these two Laws for superiority and which should have most esteem with the Nations of Europe that they have been rather ready to fight as foes then unite and agree as friends Nay Mr Selden a Dissert ad Flet. ca. 6. nu 5. writes that when Pope Innocent the second did sollicit the Europaean Princes and people to give admittance to the Canon Law within their Territories thinking thereby to enlarge his own jurisdiction and greatness they did the more freely receive and entertain the Civil Law that they might the better keep off both the Pope and his Law too So that it should rather seem they are so far from being inseparable that to entertain the one is the onely means to shut out the other And indeed the Canon Law is unnecessary where the Civil is in use for it is well known that the latter Roman Emperours did b Bilson a Bishop of our Church doth defend Justinian and the other Emperors and all Princes in so doing Christian subject part 2. circa princip as they might justly do make divers and sundry Laws from time to time for the ordering and regulating of eccesiastical matters and ecclesiastical men as is evident by divers Titles in the Code De summa Trinitate fide catholica De sacrosanctis ecclesiis De episcopis clericis De haereticis Ne sanctum baptisma iteretur De Apostatis De Judaeis Coelicolis De bis qui ad ecclesias confugiunt and the like And it is as certain that c As may be seen in the History of the Councel of Trent Lib. 4. fol 332 333. and lib. 7. fo 790. there is a multitude of things which the Popes and the Church of Rome have taken upon them to order and make Canons in in ordine ad spiritualia in order to the spiritual welfare of mens souls as they pretend which are Temporal and matters of civil intercourse between man and man as may be seen in these Titles De pactis De precario De commodate De Deposito De emptione venditione De locato conducto De rerum Permutatione De pignoribus De Donationibus De Testamentis De Trenga Pace De transactionibus De Decimis primitiis oblationibus De jure Paetronatus De sponsalibus matrimonîis De successionibus ab intestato De Homicidio voluntario vel casuali De Raptoribus De furtis And divers others And all these things in their true nature are but temporal and meer matters of Negociation or actings between man and man though some of them as Tythes presentations to Benefices Marriages Testaments successions to Dead mens goods that have died intestate other such like are by the Church of Rome accounted spiritual and through indulgence of divers Princes for the Honour of the Church the jurisdiction in them has been granted unto spiritual men But that has proceeded rather from the favour of Princes then from the d Bishop Bilson saith That the Popes decrees judgments and executions in these cases if claimed from Christ as things spiritual and not granted by Caesar are but open invasions of Princes rights calling those things spiritual which indeed be civil and temporal Christian subject part 2. circa med nature of the things themselves And whosoever does take a survey of the Canon Law in the Titles above mentioned and in divers others he shall finde it most taken out and speak the very language of the Civil Law and so much is noted and observed all along by the very Gloss and Canonists themselves So that hereby the Canon Law appears to be