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
these latter ages have not stuck to make open protestation that the Pontificial dignity was rather to give Laws to the Emperours then receive any from them And are not these if there were no other grounds enough to make them tender how they admitted the Civil Law into their Territories yet such has been the power and sorce of that Law that it has got footing even in that Spiritual Monarchy for where sin against God comes not to be restrained or punished nor the soul and conscience disciplined in order to its spiritual welfare which was the main end of ordaining the Canon Law but that the case is meerly temporal and worldly and not decided by the Canon Law there the Civil Law gives the rule even in the Popes dominions non vi sua sayes Suarez n De legib lib. 3. ca. 8. nu 3. sed quia Pontifices ita voluerunt not that it has any authoritative power there inherent in it self but as the Popes have freely entertained the same Nay Maranta in his Speculum o Part. 3. nu 76. adds further and he cites Feline a great Canonist for it That if the Canon Law has declared it self in the case but is too strict and rigid and the Civil Law be more fair and equitable the Civil Law shall be rather followed in that case even in the Churches territory then the Canon Law it self And indeed setting aside some few special differences between the Civil Law and the Canon as to some particulars the Canon Law is nothing else but the Civil Law applied to the use of the Church and Church matters And such a conformity there is between them that Rebuffus p De Nominat quaest 5. nu 14. sayes the Canon Law is but Medulla legum practica juris civilis the marrow and substance of the Civil Law and the practical application of it to cases in fact arising And Cuiacius plainly averreth p Ca. 15. De sent re judic that the Canon Law fere omnia sumpsit ex jure Civili omnino quicquid praeclarum est in hoc jure ex jure Civili est nec hujus interpres idoneus quisquam nisi sit juris Civilis peritissimus it is almost wholly taken out of the Civil but undoubtedly whatsoever is excellent in it it has borrowed from the Civil Law neither can any one throughly understand the Canon Law that is not first perfectly skill'd in the Civil This is not so truly averred of the Canon Law but the same may be as justly affirmed of the particular Law of every Nation that is any thing famous either for Laws or Government For undoubtedly the best governed Nations have wrote their Laws by the copy of the Roman and the Civil Law has been the Womb that has born and brought forth all of them neither can they judiciously clear the obscure meaning doubtful sense of their own Laws without they make use of the learning of the Civil Law from whence they sprang originally for a help to interpret them And therefore which of them soever does cast out of their Territories the Civil Law they do plainly put out the light of their own Laws and do abandon and exile that Mother of which their own Laws for so much as is good in them are but the off-spring since by the testimony of Claudian r De leudib Stilicon lib. 3. Rome was Armorum legumque parens quae fundit in omnes Imperium primique dedit cunabula Juris 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 AMongst other notes and characters of Honour that Nations have bestowed upon the Roman Law this is not the least That it bears to this very day that name and style which not only distinguishes it from the Laws of other Nations but in a way of eminenty extols and sets it above them all for although from that which every City Countrey or Nation does observe for their binding Law is derived that particular appellation of the Civil Law of that particular place as the Municipal Law of England France or Spain may be called The Civil Law of England France or Spain yet he that is to mention the Municipal Law of any one Countrey or Nation besides the Roman if he would express it by the name of the Civil Law he will not be understood except he adds the proper name of that Countrey too whereof he intends to speak But the common use of speaking still to this very day observed by the best and greatest Nations is clean otherwise as oft as mention is to be made of the Law of the Roman State for albeit you may call it The Civil Law of the Romans yet does it pass currently under the simple denomination of The Civil Law and you are intended to speak of that peculiar Law though you do not subjoyn the proper name of that state or people Justinian the Roman Emperour did first enact it as a Law and as a binding direction to the Roman people Quoties non addimus nomen cujus sit civitatis nostrum juâ— significamus Å¿ Parag. 〈◊〉 Inst De ju nat gent. â—iv As often as we say The Civil Law and do not add the name of any City to which it does belong we mean our own Law But now it is become the voluntary and free language of such people as are not subject to the Imperial Law And it is a sure token of a superlative excellency when a general appellation that is common to all things of the same rank and quality is specially and by common consent bestowed upon one peculiar thing of the same kind What was the reason that Rome was call'd The City when there was such a multitude of Cities besides it but because none came near it in power greatness riches or magnificence Or that Aristotlé when there were so many known Philosophers besides should be signally named The Philosopher but because the rest knew not the true essence of things so well as he nor had dived so deeply into the secrets of nature as he had done Or that Virgil should be styled the Poet amongst the Latines and Homer amongst the Greeks amidst so many other Poets contemporary with and a great many others since succeeding them but because they two far exceeded them all Or that Solomon should be termed The Wise man and St Paul The Apostle when certainly wisdome was to be found in others and in a great proportion too as well as in Solomon and Saint Paul was but one of twelve Apostles but because the Wisdome of Solomon did surpass the wisdome of all men under the Sun and Saint Paul was thought to be more inspired and to have greater gifts and endowments given him then other Apostles had In like manner and upon the same ground is it that although every Nation that is brought under rule
of government did belong to the trial and determination of the Civil Law should be kept within the same cognisance still these alterations notwithstanding First because for many hundreds of years that and no other his been the standing approved and practised Law in those matters and therefore in that regard to be preferred before any new Law though better if such a one could possibly be found Secondly because if it should be laid aside it would be so impossible to finde a better that we should find no Law or rule at all to put in the room thereof that would be able to decide them with any tolerable discretion or knowledge The professours of the Municipal Law must acknowledge that their Book cases the onely learning of their Law must needs here fail them when not any of those matters were ever judg'd or tried before them Where then would the Law or rule be found And surely from that we have before said it were very inconvenient to commit the triall of them to such as have neither Law or knowledge proper for the determination of them Thirdly because thereby so eminent and so useful a profession might be kept up which else to the great dishonour and dammage of this Nation must irrecoverably fall and be quite extinct Fourthly because if these things were suffered to go on in their accustomed way it would make this great change of State to be the less which in all alterations is to be wished and sought after Fifthly because there was nothing in the nature of those causes to tie them to the former government onely but that they may be tried under the name and authority of the present government and yet as much according to the course of the Civil Law as they were before for indeed the Civil Law is fitted to act under any government It can serve the Church as well as the State the Popular government as well as the Regall and the Aristocratical as well as either as we shall clearly find if we look into the States abroad as France Spain the Empire the Territories of the Church of Rome the States of the Low Countreys the States of Italy the State of Venice whose differing in point of government does not hinder but that the Civil Law is used and practised in them all The reason whereof is because it meddles not with matters of government at all but was originally made to order the private affairs of the people and to judge the matter of right between party and party onely as may appear by the very state and purport of the Laws themselves which are as answers made to questions onely concerning matters of private right and interest as they did arise from time to time during the long continuance of the Roman Empire Besides the Romans themselves after they had expulsed their Kings saw several kindes of government and yet the Civil Law served under them all And if it did not stand indifferent in this point of government so many Princes and States herein very much disagreeing would not so freely admit it into their Territories as they do for can we think that they would consent to the admittance of any thing that might endanger their government So that it is clear the change of government that has been amongst us does not at all hinder but that as long as the same causes as well Maritime as others do remain and must necessarily have a Trial the Civil Law that tried them before is the fittest Law to try them still It is of as little force and moment and ought to hinder no more which is objected That the Civil Law is a forreign Law not ordained by the Legislative power and authority of this Nation and therefore very inconvenient it may seem that matters arising here should be ordered by any other Law then which is of our own making or that we should be made to submit to any other Besides to have two Laws tolerated in one State may cause great distraction and uncertainty amongst the people who may under several pretences be troubled and convented under both for one and the same thing Further the entertaining of the Civil Law may in time be a means to supplant and undermine the Municipal Law and customes of this Nation For as to its being a forreign Law what is it more in that then the Laws of the Saxons Danes and Normans of the which our English Antiquaries Cambden a Britann fo 153. Spelman b Glossar verb. lex Anglorum Cowell c Interpr verb. Law and Selden d Notes upon Fortescue ca. 17. in princ all take notice that the Laws of this Nation are but a mixture and composition And yet it is not such a stranger amongst us neither as may be conceived for not onely Antiquity will tell us that when the Romans were possessed of this Nation and during the continuance of their government and power here which was no less then 500 years all the affairs of this Nation were ordered and carried on by the Roman Civil Law and had no Law to assist much less to check it in all that time e Cambdens Britan. fo 63. Seldens Dissertat ad Flet. ca. 4. But also if we look no further back then twenty years ago we shall remember the Civil Law did so far spread it self up and down this Nation that there was not any one County which had not some part of the government thereof managed and exercised by one or more of that profession besides the great employment and practise it had in the Courts in London So that it being thus incorporated and as I may say naturalized by our selves into this Common-wealth it ought not to be reputed or look'd upon by us a stranger any longer Besides right reason from what hand soever it comes presented ought to be embraced by us f Rationabile dictum debet ita movere judicem ed judicandum sicut ipsa lex Quia lex est omne quod ratione consistit Itaque sufficit allegare naturalem rationem licet quis legem non alleget Jas in l. 19. Co. De collat nu 10. and is authority enough to it self to carry the understanding judgment will and affections of all men though it be not put into a Law g Imberillitas est humani intellectus in quacunque causa legem quaerere ubi rationem naturalem inveneris Bald. in l. scire oporiet parag sufficit Dig. De excus Tut. But when besides its own commanding power and vertue it comes withall recommended by such a wise State as the Roman was and framed into a Law by them and has since been allowed of by other Nations also as conforming with the general reason of Man surely it ought not to be lookt upon as strange and forreign unto us or to our affairs carrying about as the same reason and dealing in the same matters that they did meerly because we did not promulgate and enact
decrees against it 130. How it came into that forme order and method which now we see it in 167. what a multitude of writers there are in t' is Law fol. 170 Civil Law is not proper to govern every State by fol. 140. 51 Cities three above all others most famous for the study of the Civil Law Rome Berytus Constantinope fol. 122 Civil Law has not of it self any authoritative force to binde as a Law in any Nation but is and must be of force every where as it contains true and solid reason to which all men are to submit fol. 126. 138. 157 Cases that do happen are to be all setled by some rule or other fol. 145 Civil Law perfected as it is at this day very sufficient to resolve all cases that can happen 15. 53. 147. 155 171. and is the true Art and Science of Law fol. 166 Canon Law and Civil Law have been at variance which should spread most 163. 185. yet both of them have been admitted by Princes for several uses 125. 185. that they are not inseparable as some do imagine 184. Canon Law is but the Civil Law applied to the use of the Church and church matters and is in most things the same with the Civil 163. 186 orders divers things meerly temporal under pretence of being spiritual fol. 186 Causes that were tried by the Civil Law before the government changed why they should be tried by the same Law still 178. and in the Epistle D Defence legal ought not even in capital matters be denied a subject against his King fol. 7 Dead bodies not to be arrested nor touch'd in their graves fol. 80 E Exarchate of Ravenna after Constantinople was the seat of the Empire was still governed by the Civil Law fol. 118 England had the Civil Law read publickly in it as soon as it was restered in Italy by Lotharius fol. 125 Ecclesiastical men and Ecclesiastical matters have been and may be regulated by temporal Princes fol. 186. 162 Ecclesiastical men have through favour of Princes rather then of right been suffered to order some causes which are meerly temporal fol. 186 F Fraud so detested by the Civil Law that sometimes it did dissolve the whole bargain sometimes it did enjoyn the whole true value to be paid where one was deceived in more then half the worth 12. never suffered to bring any advantage to the deceiver or to any one else 13. most detestable in those that the Law does most priviledge when deceived fol. 13 Forreign States not to be judg'd by Municipal Laws fol. 146 Forreign States why they do judge so much by the rules of the Civil Law fol. 153 G Great men are not suffered to assume or protect the controversies or litigious suits of others fol. 62 Guardians may husband but not sell the estates of their pupils fol. 106 Government was at first without any Law at all fol. 110 Government being changed the Laws seldome remain the same fol. 116 Government howsoever changed yet the Civil Law is of use fol. 157. 176 I Ingratitude does make a free gift revocable from him that is ungrateful fol. 84 Italy was seven times brought almost to utter desolation in less then eighty years fol. 114 Justinians body of the Law was compiled at Constantinople and kept out of Italy 500 years together 118. but prevailed altogether in the East ibid. Italy when it was possessed by the Gothes and Lombards some parts of the Civil Law were in use there still fol. 119 Justinian is by somes made instrumental in suppressing the old books of the Roman Laws after his collection was finished but without just ground fol. 121 K Killing in ones own defence ought to receive no punishment 6. nor killing by chance ibid. A King by the Civil Law is no more absolved from the observation of the Law nor has any looser power over the lives liberties or goods of his subjects then by other Laws fol. 19 Kings being driven out of Rome their Laws were never in use more fol. 103 L Law what properties it ought to have and that chiefly it ought to agree with reason 1.2 seq 46. it is but a determination of the Law of Nature 4. it must not onely not cross the first and chief principles of nature but not such neither as are any way though remotely depending on them 8. to be fairly and candidly interpreted and without any fraud 13. may profitably containe the very maximes of Reason 21. common capacities no good judges of Laws 25. and who are and what must be considered to judge rightly of them ibid. the severity of them to be imputed to the demerits of men 26. though not so rational as others subjects must acquitss in them till they be altered fol. 31 Law of Nations is that which orders all affairs between Nation and Nation 59. to be known out of the Civil Law fol. 61 Laws of the twelve Tables the ground-work and foundation of the Civil Law fol. 104 Laws of all other Nations are gone and extinct with the States themselves excepting the Roman fol. 110 Laws of some people more famous then others fol. 111 Lotharius the Emperour was the restorer of the Civil Law when it was as it were extinct in Europe fol. 122 Law forreign not to be preferred before the proper Law of the Countrey fol. 125. 140. 144 Law of no Nation so sufficient but that another Law is needful fol. 128. 144. 154 Law of government proper for the state it self is necessary in every Nation fol. 129. 140 Laws of all Nations too imperfect for the multitude of cases that do happen fol. 52. 144. 145 Laws not to be measured by their abuse or execution fol. 28 Legal matters are to be judg'd by Lawyers onely fol. 25. 151 Lawyers none in forreign parts but Civilians fol. 152 Lawyers of the latter age more learned then those before them fol. 160 Two Laws in one state not inconvenient fol. 120. 154. 182 M Municipal Laws must be in every Nation 129. 140. and they to be preferred before any other Law or reason fol. 103. 125. 140. 143. 144 Municipal Laws are too short and scanty to take in all cases that do arise fol. 144 Merchants no fitting judges to trie and decide Sea causes fol. 148 Men how much they differ in their tempers and so in their actions fol. 25. 41. 53. 145 Monarchy is no looser government then any other fol. 19 Military questions to be regulated by the Civil Law In the Epistle Municipal Laws have no degrees taken nor Lectures read in them any where but in England 152. 153. all that is good in them is taken out of the Civil Law fol. 98. 164. N Nations not so abounding in all things but that they do or may stand in need one of another fol. 155 Nations abroad do mainly practise the Civil Law in matters between man and man fol. 128. 133. 159 Nations abroad are best satisfied by justice done according to the rules