Selected quad for the lemma: england_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	john_n	lord_n	sir_n	20,088	5	6.7459	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A96725	The law of laws: or, The excellency of the civil lavv, above all humane lavvs whatsoever. Shewing of how great use and necessity the civil law is to this nation. / By Ro: Wiseman, Dr of the civil law.	Wiseman, Robert, Sir, 1613-1684.	1657 (1657)	Wing W3113; Thomason E889_3	165,799	209

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

Aquil. Maestertius who stifly maintains this proceeding in the Roman Law sanè hic juris rigor si aliquis sit utilitate publica compensatur This rigour of the Law if it be any is recompensed with advantage to the whole Common-wealth for by the terrour hereof it is free from the machinations of wicked and lewd men And though there have been some as Ludovicus Vives 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 tormenta veritas exquiraratur in 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 ferè 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. Ordei 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 Hackwill Apolog. of Gods Provid lib. 4. ca 2 sect 5. Isaacksons Chronolog Anno 10●0 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 var. 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 indiciis oneratus argumentis penè convictus reus esse debet Wesenb parat dig eod nu 7. with such an evidence as in some other States would be sufficient to take away life it self it 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 sacient quae elident contraria ita ut amplius ea semiplenam probationem non impleant ad torturam perveniri 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

lib. postum haered inst vel exhaered De exhaered Lib. De Inoffic testam are not capable to receive any practical use or application in those Territories Again the greatest punishment that the Romans inflicted upon simple theft was to pay four-fold where the thief was taken in the act it self or at least seen and cried out upon before he got out of sight i Culac lib. 11. obs 58. or if otherwise the theft was not so manifest to 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 Iust De oblig quae ex delict Howbeit though Justinian will not have any theft punished with the loss of life or member m Novell 134. 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 sicar 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 paen 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 the 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 Nee 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