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 Sâ—lden a Graduate in the Common-Law but a great Student in all learning and one that seems to have searched narrowly into the state of the Civil Law as it has stood in use and request in other Countreys as well as in England in all times in his additional discourse upon Fleta wholly spent upon that subject owns the entertainment and use of the Civil Law in the Western Countreys of Europe that had left to acknowledge the Roman Empire long before For in that discourse b Ca.
writing upon St Austin o De civit Dei lib 19. ca. 6. and Sir p ca. 22. John Fortescue in his praises of the Laws of England who have with very much acrimony-defended the contrary yet I must say to them as the q l. 3. Co. Theodosian De defensor civitat three Emperours Valentinian Theodosius and Arcadius once said Removeantur patrocinia quae favorem reis auxilium facinorosis impertiendo maturari scelera fecerunt Away with those Apologies that by assisting persons that are accused and pleading on the behalf of wicked men are an occasion for wickedness to spring up and fructifie for surely it must needs grow most and wax most vigorous there where it is most gently dealt withall though as to the first unquestionably a most learned man whosoever reads him in that place he may see that he there condemns this trial by torture looking upon it in the general onely and as used arbitrarily and without any rule or measure at all and not as it was practised under the rules and cautions of the Roman Law As for the other though he is zealous to prefer the Law of this Nation before the Civil Law and all other Laws of the World besides yet he could not have been so bitter in censuring the Civil Law in this particular if he had remembred with what measure of severity those that are arraigned for capital crimes are handled by that Law that he does so much commend which because others of that profession have lately taken such free notice of themselves need not mention And yet was not this practised amongst the Romans onely nor r More majorum introductum esse inquit Cicero ut per tormenia veritas exquiraratur an Partit Orator they the first authors of it for they took it from the Graecians and from the people of Rhodes whom they followed in most things And ſ Parat Dig. de Quaestion nu 3. Wesenbeck sayes of it that it was mos antiquissimus omnium fere bene institutorum populorum communis ut non immeritò pro lege ac jure quodam gentium habeatur It was an ancient observation common almost to all well ordered Common-wealths that it may very justly be accounted of as it were a Law of Nations And if we look into our own Historians and t Cowels Interp. verb. Ordel◠Books of Law we shall find that there has been a kind of trial very anciently in use amongst our selves here in England very near to this of the Romans and in severity no whit inferiour For there were certain Ordeal Laws which were used in such doubtful cases whereby when clear and manifest proofs were wanting they did try and find out whether the accused were guilty or guiltless And this they were wont to execute one of these three wayes either by fire or by water or by combate For sometimes men were enforced to decide matters in controversie not onely criminal but civil by the death of one another in a Duel Sometimes they were adjudged to take red-hot Irons into their bare hands and sometimes to u Which was practised upon Queen Emma the Mother of King Edward the Confessor to clear her self of Adultery with Allwin Bishop of Winchester or as some write upon Allwin himself Harkwill Apolog. of Gods Provid lib. 4. ca 2. sect 5. Isaacksons Chronolog Anno 1050. walk bare-foot over red hot plough-shares blind-fold Their judgment by water was either by appointing the party accused to thrust his armes up to his elbows in seething hot water or by having a cord tied about him under his armes to be cast into some river In these cases if the accused parties go over seven plough-shares laid a little distance one from another and either tread besides them or treading upon them with their bare feet or taking the hot irons in their bare hands did receive no harm and so if the parties putting their armes into the hot water were not scalded or they that were cast into a river did sink down into the bottom thereof until they were drawn up they were pronounced innocent and not guilty but if they were burnt by the hot irons or scalded by the hot water or could not sink to the bottome of the river or were slain or vanquished in the combate in such cases they were pronounced guilty But further this great but most wholsome severity of the Romans was tempered with a very great allay of tenderness and care towards the accused offender as may be seen by the many and most prudent cautions that were observed in it For First the offence in which such trial was allowed was to be enormous and not so little x Gomez ver Resol Tom. 3. ca. 13. nu 2. as was to be punished by banishment or pecuniary satisfaction but either death or corporal punishment was to follow it Secondly it never could be had where there could be gotten a full and a sufficient proof to condemn without it For this was to be the last means to bring forth the truth when y l 12. co de Quaestion all other means did fail Thirdly before a man could be brought to the rack the offence was to be made out z Multis inditiis oneratus argumentis penè convictus reu◠esse debet Wesenb parat dig cod nu 7. with such an evidence as in some other States would be sufficient to take away life it self if the crime were capital for either it must be proved by one witness who saw it done or if it could no otherwise be made out then by circumstances they must be very pregnant and convincing and such circumstances must be a Gomez dict ca. 13. nu 18. proved at least by two witnesses Fourthly the accused person had all free license given him to disable the accusers proof to disparage his witnesses or to offer any b Si quaedam indicia pro reo faciant quae elident contraria ita ut amplius ca semiplenam probationem non impleant ad torturam parveniri non debet Wesemb parat Dig. De quaest nu 7.11 evidence to the contrary and if the Judge did at last condemn him to be brought to the rack he c L. 2. Dig. De appellat recipiend might yet appeal Fifthly it must be executed with a respect had to the strength or weakness of the body that is to suffer and no further then may serve to draw out the truth ut moderatae rationis temperamenta desiderant sayes d l. 10. parag 3. Dig. De quaest Arcadius and ut homo salvus sit vel innocentiae vel supplicio as may stand with all fitting and reasonable moderation and that he may be preserved either to innocence or to punishment Sixthly The Law notwithstanding gave so little credit to any confession made under such bitter sufferings because it might be extored by force and out of a hope to be rid of the present pain rather then
pay double the value of that which he stole and the reparation was made onely to the party damnified And if there were divers persons taken or discovered to be actors of one and the same theft they all underwent but one and the same penalty amongst them yet either of them might be sued for the whole k L. 21. parag 9. Dig. de furt But by the Civil Law it is not onely theft privily to take and carry away something that is anothers with an intent to defraud him of it but it is a theft also when one that has lent money upon a Pawn does employ the pawn to any private use of his own or when one that is intrusted with the safe keeping of any thing for me does use or wear it himself or when one has borrowed a thing of me for a certain use and he does otherwise imploy it or for a certain time and he detains it longer or carries it whither he should not and further then he promised to do l L. Si pignore 54. Dig. De furt parag furtum autem Inst De oblig quae ex delict Howbeit though Justinian will not have any theft punished with the loss of life or member m Novell r 34. ca. fin vers pro furto autem yet he leaves High-way-men and breakers into houses and pyrates at sea to be chastised by death n Ca. Ult. No. 134. l. Dig. ad l. Cornel. de ficar for such acts as these are accounted more then theft by the Civil Law And for want of ability to make pecuniary reparation he will have all thieves punished at the Judges discretion o L. ult Dig. de furt l. 1. parag generaliter Dig. de poen corporally not capitally Surely then in a case of simple theft it were very improper to bring into argument or to cite any Text of the Civil Law De furtis in any State or Countrey when theft is look'd upon rather as a publick crime then as a private injury and is punished with death it self without any satisfaction made to the party Likewise Slavery as it was under the Romans not well suiting with Christian Religion which looks upon all men alike proceeding from one common parent and created for one and the same end is in all Christian Nations worn out and abolished Because it seems to be against Christian charity and that brotherly communion which we stand obliged by to one another to exercise such an absolute dominion over any that nature and religion has made our equals Those hard and severe Laws of servitude therefore which were in use amongst the Romans whereby slaves were excluded from the participation of any civil right whatsoever p L. 32. Dig. de reg ju and could not so much as marry nor have any estate of their own nor bring any action or complaint in their own name but as to civil communion were accounted as plainly dead q L. 209. Dig. de reg jur wanting in a Christian Common-wealth that subject matter for which they were first ordained they must needs fail also of their use and vigour and be esteemed incongruous and improper there These and such like instances do shew that the Law of a Nation must necessarily be fitted to the government of it and to the disposition of the people and such affairs as they use to deal in and that it is not possible that the Civil Law alone without they help of a peculiar Law proper to each Nation should be sufficient to steer and carry on all the affairs of every Nation so differing from and as I may say directly opposite to the Roman But what are a few instances of Laws abrogated or out of use and that sometimes but in part neither and which chiefly refer to publick Government to a whole Body of justice both distributive and commutative which that Law comprehends and takes in 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 joyn 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 IT is the practise of the whole world to adhere and stand to the dictates of their own Laws and in no case to admit of any other Rule either of Civil Law or acutest reason against that which their own National Laws have declared and directed to be done r Nec judicibus contra leges judicare nec de legibus in republica probatis ac susceptis disputare fas est Bodin de rep lib. 1. ca. 10. in fin But then it is visible to every discerning eye that the Laws that are made are oft times drawn so short and put into such obscure and ambiguous termes that it is but requisite some other Law or rule should be found out to supply clear and explain them And every where the body of the Municipal constitutions appears so narrow and slender and comprehends so little that the number of cases that are expresly resolved by Law is not by many degrees comparable to the number of those that do frequently and almost daily happen wherein the Law of the Nation has not made any decision at all Sir John Davis in his Preface to the Irish Reports does not stick to acknowledge this to be most true in the Municipal Law of England though in his praises of it he sets it above all the Laws of the World besides For saith he if the Rules and Maximes of the Law were a thousand times as many as they be indeed yet would they carry no proportion with the infinite diversitie of mens actions and of other accidents which make the cases that are to be decided by the Law How great need is there therefore to keep the Civil Law in England still that out of its store and plenty it may be instrumental to resolve those doubts and questions of right which as yet have no special Law of the Nation made for them Indeed as the humours and inclinations of men do differ and their occasions are divers and the ends they pursue various and the way and course they take to obtain them not the same so is it impossible that the actions that proceed from them should be like and uniform but must needs as their causes are be various and disagreeing From whence it happens that every day produces such accidents as though they be not wholly new yet they come accompanied with one circumstance or other that makes them differ from all that went before them Besides Nature it self brings forth some variety of contingents without any act of man All which being of several natures and differently circumstantiated from what is past or could be thought of though they do too
been writ about that ridiculous contradiction in adjecto of the two Houses coordination with the King the Monarch when as before is specified the King is the Head the Lords Spiritual and Temporal and the Commons the three Estates by several Acts of Parliament specified Lippis tonsoribus notum yet urged for designs mischievous abominably as we have felt As also that trayterous distinction of the Spensers Spensers Treason 'twixt the Kings Person and Office by two Acts of Parliament declared Treason yet in these late times maintained by too many Goodwins book for the justification of the murther of the late King and many other of that kind Goodwins book justifying the murther of the King Mr. Bucks book of Richard the third wherein he seems to impugne the right of the King from the daughter of King Edward the fourth wife to King Henry the seventh Mr. Bucks book of Richard 3. too much leaning to if not affirming Richard the thirds right by that monstrous Act of Parliament that illegitimates Edward the fourths issue In Sir Edward Cooks book entituled The third part of the Institutes of the Law of England Sir Edw. cooks Writings concerning High Treason and other Pleas of the Crown 1658. Printed at London by M. Flesher for W. Lee and D. Pakeman § Le Roy pag. 7. he puts it down there for Law upon the Statute of 25 E. 3. c. 2. De proditionibus That if Treason be committed against a King de facto and non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon granted by a King de jure that is not also de facto is void Strange would have been the consequence of this if Cromwell had been made King as some desired and a loyal man should have killed him in order to the restitution of the true King de jure our dread Soveraign King Charles the second Or should a loyal man for the same end have killed him though he had but de facto non de jure the title of Protector how far would that have extended by the words in the same § may be considered where he sayes that Statute of E. 3. is to be understood of a King regnant and as follows there and as he sayes most truly a Queen regnant is within these words Nostre Seigneur le Roy for she hath the Office of a King So perhaps it deserves to be examined whether some of note and power in the time of Cromwells Usurpation did not affirm that Cromwell was within these words Nostre Seigneur le Roy. In regard Sir Edward Cooks Writings are by many held in high repute and some have not stuck to style him the Oracle of the Law therefore his Writings require to be more strictly looked into and that if any errors be found therein they may be detected and expunged as being more dangerous then in other mens Writings not of so great repute Corruptio optimi est pessima Also it was advised Illegal and seditious speeches if it shall be thought fit that such Speeches as have been publickly made by any Judges or noted Lawyers upon the Bench or in any publick Assemblies against the Regal or Subjects Right or the Law of Nations which may give just offence to our Neighbours may be taken notice of and publickly declared against Such us that when that Act of 25 E. 3. was alledged to justifie Cromwells Usurpation and that Seigneur le Roy in that Statute included Cromwell the usurping Protector And that speech of a great Lawyer at the tryal of the Portugal Ambassadors brother when it was alledged that he was by the Law of Nations to be sent back cum postulatu to his Master the King of Portugal to be by him punished for his offence committed here and that that Commission for trying him here without the consent of the Portugal Ambassador was the first Commission that ever was granted here to try any Ambassador or his servant without the Ambassadors consent Even the Bishop of Ross Ambassador from Mary Queen of Scotland though she was de facto deposed or forced to renounce the Crown there when he had committed a great offence yet was onely dismiss'd and not further questioned But to all this and much more that Lawyer replied What have we to do with the Law of Nations if it be contrary to the Law of England One pretended afterwards to excuse him and that he spoke but according to the words in the Statute of 21 H. 8.21 where it is said We are free from any subjection to any mans Laws but onely to such as have been devised made and ordeined within this Realm for the wealth of the same c. which words are intended against the Papal Usurpation imposing Laws upon us As also if it be thought fitting The illegal Preface to the Propositions at the Isle of Wight that that Preface to the Propositions sent by the House to the late King at the Isle of Wight which seem to strike at if not to take away the Kings Negative voice in Parliament expresly contrary to many Acts of Parliament the Kings most known Prerogative and the most known Custom and Law of the Land be declared illegal and derogatory to His Majesties Prerogative and just right As also if it shall be thought fitting Rectifying of translation of some words that the translation of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Rom. 13.1 to higher powers altered to the supreme powers for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Pet. 2.13 is translated whether to the King as supreme The two Houses and Powers inferior many degrees to them have by some been interpreted to be meant by higher powers and strangely hath it been wrested if not exclusive of the King As also if it shall be thought fitting that that expression about the time of His Majesties coming over Illegal Declaration in one of the Declarations or Remonstrances that the Government was by the King Lords and Commons being derogatory to His Majesties Prerogative and Legislative power and the Government being in him radically and but derivatively and subordinately in any others for and under him Therefore to be considered of altered and amended As also The Printing-press if it shall be thought fit that the Presse be carefully looked into that no seditious Books or Pamphlets be vented to poyson the people or to confirm any in their bad principles The want of this care hath grown into a great Seminary of mischief which if nothing but our sad experience of it should make us more wary for the future As also A body of the Law to be framed if it shall be thought fit that according as was begun by the late Lord Chancellor the Lord Viscount St. Albanes which as 't is said King James put him upon a Body of the Laws should be digested and compiled