and affections thereunto will appear even when the contrary is performed So true is that of the Civil Law Jura naturalia sunt immutabilia y Parag. 11. Inst De jur nat geut Civil The Laws of nature and the common reason of nations are unchangeable and are not capable to be repealed For if it were once admitted that these Laws were alterable what strange contradictions and sensless incongruities would follow And how would man be ravished as it were from himself his reason one chief part of his essence being taken away Besides how would sins and trespasses against nature multiply How common would natural injustice be and what loud complaints thereof would arise whereby not onely great confusion would break in and the peace of the Common-wealth be disturbed but the common society of Nations would in time also cease The Civil Law then as it is natural essential or rational cannot be repealed Secondly let it be spoken to its praise also that the Civil Law is so far from being made useless to a Nation where the whole state of Government has been subverted as that it is thereby become more useful and necessary It is certain that the Roman people themselves thought it so when they dispatcht certain chosen men on purpose to fetch it from Athens for their use and service after they had driven out their Kings suppressed their Laws and erected a popular government in place of the Regal The like opinion possesseth now adayes the Princes and potentates of the greatest part of Europe as is clearly demonstrated by their admitting the learning and profession thereof into their several Territories that it may be at hand to decide and resolve such cases and questions of right that happen amongst their people wherein a Law of their own is wanting Nay if any such difference or controversie arises between the Princes themselves or between Nation and Nation which is most frequent and common because there never was nor can be by any authority a positive Law made to bind them they debate and argue such differences by arguments fetcht from the Civil Law and allow of the reason thereof as a most competent and equal rule to decide them by And if this supply of justice by the learning and knowledge of the Civil Law were taken away too what ignorance uncertainty arbitrariness injustice and oppression would the people of the world lie under and what hazards of detriment or ruine would their rights fortunes and estates be exposed unto for where all manner of Law is wanting in a Common weale to do the acts of justice and ministration of right by it must be granted that the light of natural reason must of necessity be the Law since that was the onely means which was given to man at first to judge and discern by of humane things before any Law was given But if that should depend upon the wandring fancies and imaginations of men onely and not be illuminated by some right knowledge and learning under how many several shapes and forms must it needs appear when the apprehensions and conceptions of men through the variety of natural gifts education age knowledge and experience are as differing as their visages and persons be And where would the certainty constancy and unity of justice be when the Judges of the same Tribunal furnished with bare natural endowments onely would differ from and oppose one another when one Tribunal shall judge directly opposite to another upon one and the same fact or which is a levity shameful and unbeseeming when the Judges of the same Court in cases of like nature shall judge and order diversly from that which they had done before z Apud Romanos prius quà m sententiam ferrent praeco clara vice judioes hoâ—tabatur Ne se paterentur sui dissimiles esse Bodin de rep lib. 6. ca. 6. Under which uncertainty and discordance how shall people know what to expect when their rights come into question What can any Counsel advise Or what caution or advisedness can be used by men to put themselves or their affairs out of jeopardy when they are never certain of that justice to which they should conform themselves and be secure By the conversion and change of State therefore though the Municipal Law goes to wrack as commonly such great frames are seldome medled withal but all falls a pieces the Civil Law is not the less but rather the more necessary to be retained still First because it hath no coherence or conglutination with the particular customes or government either Regal or Episcopal as the Municipal Law hath and so the one may fall and yet the other stand Secondly because the Civil Law is the proper Art and Science of that right natural reason which for want of other rules in the doing of justice we have said must necessarily be the common standard to try all things by The principles of which Art and Science are not weak or superficial but strong and solid not various or repugnant but certain and agreeing not harsh and rigorous but tender compassionate and equitable not partial to any but alike just to all not obscure and perplexed but clear and perspicuous in the eyes of judicious and right discerning men though above the reach of the vulgar Thirdly because in carries the weight of undeniable authority along with it the decisions thereof being not the sudden fancies and raw conceits of a few men nor do they rest upon the bare Reports of any how learned in the Law soever but they are the clear evidence of Reason and the prudent advisements and mature deliberations of a whole State excelling in wisdome mighty in greatness and famous in renown And howsoever it was at first ordained to be a Law for a particular Nation to be ruled by yet has it since been made universal in use throughout Europe and by the general consent of all the learned sprung up to an Art or Science to teach natural justice and equity to all mankind Fourthly because the reason of the Civil Law does not onely rightly inform and teach the understanding what is just and right but the certainty thereof does keep the judgment steddy and unexposed to those fits of variation and instability which those that are directed by no certain principles are subject to for it is not easie for them to vary who have any fixed rules to guide them So that if this Law were duly applied by those onely that are learned in it since it is not possible to be done by any other sort of men neither ignorance nor errour nor arbitrariness nor uncertainty of justice nor the consequences thereof wrong injustice or oppression would be found at least they would not be so frequent and common as where the guidance and light of such a Law is wanting But besides these foregoing reasons there are yet further and much stronger reasons to be added why those matters and causes which before the present change
as guides and directors in all the actions of his life and thereby to discerne what was good and what was evill by that very light that shined within him When therefore the commands of a Nation are irrationall and senselesse that light is as it were put out and extinguished and Subjects are made to obey rather like Beasts then Men. And therefore Tully said as he is quoted by Carbo c Tractat. de legib lib. 6 disp 2. Nos legem bonam à mala nulla alia ratione nisi naturae normâ dividere possumus We cannot discern a good Law from a bad otherwise then by comparing it with the Law of Nature And therefore he will have it to be justorum injustorumque distinctio ad illam antiquissimam rerum omnium principem naturam expressa a rule discriminating that which is just from that which is unjust delineated and drawn forth by the old Originall of Nature and sayes it is the highest or chief reason grafted in Nature commanding those things which are to be done and forbidding the contrary And again d Lib. 2. De Inven. Initium juris à natura profectum deinde quaedam in consuetudinem ex utilitate rationis venerunt postea res à natura profectas à consuetudine probatas legum metus religio sanxit The beginning of all Law did proceed from Nature it selfe but afterwards there were certain things which were by evidence of Reason found necessary and thereupon brought into common practise and at length the fear and reverence of Laws did settle and enforce what had been so taught by Nature and Custome it selfe had allowed of So that the Act of the Law is but to see that effectually observed and executed which Nature hath ordained and which the common Reason Custome of men doth declare to be just equal and necessary And sometimes the same e Lib. delegus lib. 1. Tully styles Law the very force of Nature the Vnderstanding and Reason of a wise Man the rule of right and wrong And f Lib. 3. de rep defining Law as it ought to be rather then what generally it is he terms it right reason spread over all people durable everlasting which as fire burns every where alike is not one at Rome and another at Athens one now and another hereafter but being the same and unalterable serves for all times and runs through all people which began not when it was first written but when it first sprung forth from Nature Plato g In Min. de rep de legib will also have it a reasonable rule leading and directing men to their due end for a publick good ordaining penalties for them that transgresse and rewards for them that obey And Isidore who requires other properties in a Law requires this of Reason too for in his h Lib. 3. cap. 3. Etymologies he sayes Lex erit omne quòd ratione constiterit duntaxat quòd religioni congruat quòd disciplinae conveniat quòd saluti proficiat A Law shall be that which may stand with Reason agree with Religion suit with the education and dispositions of the people and be beneficiall to the publick welfare With i Prima secundae qu. 97. Ar. 1. Aquinas also Lex humana est quoddam dictamen rationis quo diriguntur humani actus Humane Law is a dictate of Reason by which humane acts are steered And again k Quest 91. Art 4. Lex nihil aliud est quâne quaedam rationis ordinatio ad bonum communt ab eo qui curam communitatis habet promulgata A Law is nothing else but a transferring or applying of Reason to the common good manifested to all the people by him who hath care of the Common-wealth The Civil Law speaks the same thing l Lib. 1. Dig de Legib. Lex est commune praeceptum virerum prudentum consultum A Law is an universall and generally known precept Notitia aequi boni à natura omnibus indita as m Lib. 1. Gothofred explains it ingrafted in Man by Nature and the result of sage and understanding men All n Minfinus Inst de jur Nat. gent. Civ in princ Civilians without any contradiction doe consent and agree that the true Law of a State is but Determinatio juris naturalis a declaring or expounding in such particular cases or accidents as most frequently happen amongst men what the Law of Nature intends by its generall precept or it is a rationall distinguishing upon the Law of Nature making it to be of force in some cases not of force in others with such directions for observing the same and kindes of punishment to the offenders as the wisdome of each state shall judge most rationall and most convenient Not to Steal not to commit Adultery not to Kill Nature it selfe taught in generall but who should be said to Steal who to commit Adultery who to Kill what proof should be sufficient to convict a Man of these crimes who might be the accusers how and in what manner and before what Judges the offenders should be proceeded against what pun shments they should suffer and after what time no accusation for them should be heard because the Naturall Law did not teach in particular therefore the Law of every State doth determine them which as it is done in pursuance of the primary precepts of Nature so must it be done too with the soundest judgement and reason having an eye to the matter of the precepts to the nature of the people and to the state of the Common-wealth it selfe And these severall particulars being thus determined and put into a Law they adopt to themselves the name of a National Law o L. 6. Dig. de Just Jur. Jus Civile sayes Vlpian est quod neque in totum à naturali jure vel gentium recedit neque per omnia ei servit Itaque cùm aliquid addimus vol detrahimus juri communi jue proprium id est Civile intelligimus The Law of a people is that which neither doth wholly estrange it self from the Law of Nature or of Nations nor doth strictly follow them in all things neither when therefore we adde or diminish ought from the Vniversal Law we make it thereby a peculiar Law and give it the denomination of a Civill or Municipal Law so that the Roman Law will have no other materiall difference to be between the Law of Nature and the Dictates of Reason and the Law of a State but that what was before common and universall in notion is now by distinguishing it into cases by fitting it with proper circumstances for more ready execution and by moulding it into a form appropriated to peculiar use The Cansn Law that enumerates all the essentiall properties of a Law doth exact also that it be honest just and agreeable to Nature p Car. 2. Dist 4. Erit lex honesta justa possibilis secundum naturam secundum patriae consuetudinem
them when they offer violence to their Parents or speak reproachfully against them the reverential respect so due by Nature to Parents will soon be turned into contempt and scorn The Civil Law therefore has not onely said Filio semper honesta sancta persona patris videri debet n Lib. 9. digo obseq parent pairon p aeâ—land The person of a Parent ought to be reputed by a Child as Venerable and Religious But in order to this it also has forbidden Children to Marry without their Fathers consent first obtained which if they doe the Marriage is made void o Lib. 18. Dig. de vit nupt l. 7. Co de nupt Inst cod in princ Likewise Si filius matrem aut patrem quos venerari oportet contumeliis afficit vel impias manus ei infert praefectus urbis de lictum ad publicam pietatem pertinens pro modo ejus vindicat If a child shall uttter approbrious words of Father or Mother whom he ought to have in veneration or shall lay wicked hands upon them the Magistrate shall punish it as a publick offence and as the quality thereof deserveth p Lib. 1. Dig. de obseq sect 2. It will not suffer Children to bring any criminal accusation or exception against their Parents whereby their credit may be empaired q L. 2. dig cod nor commence any suit at all against them except special leave from the Judge be first gotten r Lib. 2. 13. Dig de injue voc Nor put a parent to the Oath of calumny Å¿ Lib. 7 sect 3. dig de obsequ as may be done to all parties besides that are in judgement lest it should thereby be suspected that he does calumniate with his own Child Nor shall a Child be heard as evidence against his Parent though he offers himselfe to be a witnesse against him t Lib. 6. Co. de Test Again the Lawes of all States professe to abhor all fraud deceit and circumvention in all contracts and dealings amongst men as Nature it selfe and the common voice of Nations has forbidden for but upon confidence of honest upright and fair dealing no trading intercourse or correspondence could be secure Yet if the Law of a State shall onely admonish all that buy barter or exechange to be cautious and wary at their own peril and when they be cheated with any unsound corrupted Merchandise or in the price beyond all measure if it shall leave them helpless without relief Or if a State shall give licence or toleration to debtors to passe convey away all their Estates thereby to deceive their Creditors so it be done before action brought or if practises of collusion may be used or feigned actions brought under counterfeit and fictitious names and in colourable and fallacious forms on purpose to defeat others of that right which was intended them or to delude the Law by transferring a right thither whither lawfully it ought not to goe where then will honesty truth and faithfulnesse so requisite in all affaires acted amongst men be And therefore the Civill Law does not onely say in the generall In omnibus contractibus bonu fides requiritur And Naturalis suadst aequitas ut ex bona fide contrahatur u Schenidw Inst de action s estionum nu 6. All Contracts must be made with honesty and natural Equity invites us to honest dealing But it comes to particulars also and will allow of deceit no where for if a man be deceived in the price of a Commodity bought supra dimidium above half the value of it for so far as to half inequality of value is born with for avoiding endless challenges Et nt omnis obligatio emptionis venditionis semper sit in incerto that all uncertainty in buying and selling may be removed x l. 2. co de rescind vend the seller at his election shall be enforced either to take his commodity again or restore to the buyer what he has taken above the true worth of it Immodicae laesio excedens dimidium justi pretii gravior est quà m ùt toleretur an immeasurable prejudice which exceeds half the just value is more than can be born withall But if the fraud be not in the price but does infect the contract or act done in another kinde the Judge has commission either to disannull the thing or to take such order that the decriver may not gain by his evil subtilty y l. â— Dig. fiquis â—aut l. 134. s 1. di de reg jur 2. nor the other lose by his simplicity and weakness z l. 155. Dig. de reg jur If a diseased or unmerchantable commodity be sold and the defects thereof not visible the Civil Law will compel the seller to take it again and give the buyer his money back a Dig. De aediâ— edict Or if a seller shall tell the buyer that the thing sold is thus and thus qualified by which the buyer that cannot see whether it be so or no till some good trial had is induced to give the more and afterwards it is found clear otherwise the seller is to give so much back as the thing is lesse worth by those qualities which are wanting Nam ea quae commendandi causa in venditionibus dicuntur venditorem obligant nisi palam sint Those qualities or conditions which any thing that is sold is commended for must bee made good by the seller except they bee such as the buyer may be by his own view certified that they are not so good as they are spoken b l. 43. Dig. de contrab erupt Likewise if a man shall sell Land House or any thing else to which he cannot make a good title but is recovered by another though he never undertakes to warrant it or make it good yet emptorem indemnem servare debet he shall save the buyer harmlesse because it doth naturally arise without any special covenant out of the bargain it self that the buyer shall either quietly enjoy the thing or at least be indemnified by him that sold it c Lib. 11. Dig de act empt 1.6 co de evict And if a man shall pass away his Estate to defraud his Creditors leaving nothing or not enough in himself to satisfie his just debts that he had contracted before the Civil Law without distinguishing whether it was done before action brought or after revokes it out of the hands into which it was put and reinvests the debtor in it and makes it as liable to his debts as if no such thing had been done d Dig. quae in fraud cred Neither does it onely disallow but punish also those that do prevaricate and help the cause of their adversay by waving their own just pleas and wilfully failing to prove what they may and in shew undertook to do e Di de praevaricat It will not suffer any such combination or practise of colluding to
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
chief principles to a perfect conformity with them and so ought the Law of every State to do for that is the true way to make it rational throughout to keep it from being contradictory to it selfe And that particular Law that makes the least deflections from nature and the common reason of man and whose Acts and Edicts carry most of that evidence and demonstration along with them as doubtless some Lawes carry more and others lesse as the wisdome of those that made them was greater or lesser that Law I say must needs be the most rational and thereby the best and perfectest Law of all other CHAP. II. That what Reason teacheth should be made the subject of a Law is no superfluous but a profitable thing IT is not any hard matter to give the reason why the principles of Right and Justice and the duties of a civil life that are already ingraven by nature in the heart of man should notwithstanding be further declared and made known by a Law For First though some principles of reason be in themselves so apparent that they need no illustration yet there be others more secret and more remote from the understanding than that they can be discerned by every mans present conceit without some deeper discourse and judgement In which discourse because there is difficulty and possibility many wayes to erre unlesse such things were set down by Lawes many would be ignorant of their duties which now are not and many that know what they should do would nevertheless dissemble it and to excuse themselves pretend ignorance and simplicity which now they cannot a Tameise nulla perturbatione judices ab aequitate dimoverentur nihilominus tamen legibus opus est quibus vel uti lucerna quadam vel imperiti inâ— densissimis humanarum actionum tenebris dirigantur vel scelerati metu paenarum terreantur Bodin de rep l. 6. c 6. That a Ship and Goods cast away at Sea by tempest if they be driven to Land shall accrue to the publique Exchecquer and the distressed owners shall not by any claim recover them some will not believe it to be barbarous and most unnatural for it is practised by some nations b Sic vivitur ut qui portus habent cam ciudelitatem tum in cives tum in peregrinos exequantur Jus quaeris Errorius facit Bodin de rep l. 1. c 10. and defended by divers learned men And yet a very Heathen by instinct of nature could cry out Absit O Jupiter ut lucrum captemus tale ex hominum infortunio Jove forbid that we should draw such lucre from mans distresses And therefore Constantine the Emperour did by a Law establish this dictate of Nature and Reason and restored them to the owners and charged his Exchecquer-men not to meddle with them Quod enim saith he c Lib. 1. co de Naufrag jus habet fiseusin aliena calamitate ut de re tam luctuosa compendium sectetur What right can anothers calamity bestow upon the publick treasury that it should reap benefit from a sad disaster Secondly Falshood doth so seck to cloath it self with the similitude and appearance of truth that none of the ordinary sort of men and not all of the best rank neither can discover or distinguish true and solid reason from that which is false and counterfeit When therefore our own natural instinct inbred knowledge beares witnesse to any thing we have the warrant and allowance of the Law for it besides no false colours or semblances of reason can deceive us for what the wisdome and experience of a Nation has agreed and declared to be just and convenient and our hearts do own and allow to be so that unquestionably carries it in the greatest evidence and certainty of true and pure reason that mortal men can attain to in things of humane and civil intercourse Thirdly the Lawes of Reason which Man retaining his original integrity had been sufficient to direct each particular person in all his affaires and duties are not of themselves sufficient but do require the accesse of other Lawe now that Man and his off-spring are grown thus corrupt and sinful And because the greatest part of men are such as prefer their own private good before all things even that good which is sensual before whatsoever is most Divine and for that the labour or doing good together with the pleasure arising from the contrary doth make men for the most part slower to the one and proner to the other therefore unto Lawes it hath seemed alwayes needful to adde rewards which more allure unto good then any hardnesse deterreth from it and punishments which may more deter from evil than any sweetnesse thereto allureth wherein as the generality and substance is natural Vertue rewardable and Vice punishable so the particular determination of the reward or punishment and all other circumstances is the proper act of the Law Fourthly when men are rebuked for acting contrary to the Law of Nature and the Light of Reason what one amongst them commonly doth not stomack at such contradiction storm at reproof and hate such as would reform them Notwithstanding even they which brook it worst that men should tell them of their duties when they are told the same by a Law think very well and reasonably of it Because they presume that the Law doth speak with all indifferency that the Law hath no side-respect to their persons that the Law is as it were an Oracle proceeded from wisdome and understanding Thus we see that what Reason it self prescribeth may in sundry considerations be expedient to be ratified by a humane Law and indeed that a humane Law ought in substance to hold forth nothing which Reason allowes not of CHAP. III. What is here meant and intended by Reason BUt lest there should be any mistake touching the necessary quality of Reason which we so stictly require in a Law it is but needful that we should explain what we intend by Reason For certainly there is not a more deceitful thing than Reason it being made use of frequently by false shews and colours to beautifie the foulest and most deformed things and is grown to be the common gloss that every evil does varnish and deck it self withall also it is such a faculty that those that are partakers of it in the meanest measure do infinitely extoll and admire what they apprehend to be reasonable though to a right judgement it be nothing so and what they have not understanding enough to conceive through their own natural weakness they do as much disdain and condemn how judicious and solid soever it be Although therefore the plainer a Law is and the more obvious to the understanding of those that are to be guided by it the better and the more commendable that Law must needs be yet we would not have it thought that we allow no Law to be good but what every man that is bound by it does
immediately understand and approve of For We cannot admit that the capacities of common men are sufficient to judge of Lawes which may be rational enough though the reason of them be not seen to them yet the main principles of reason are in themselves apparent and discernable by every eye and it is not easie to finde men ignorant of them and therefore a Law that is contrary to those common principles is to be abhorred But besides those that are universally received and agreed on there are other principles which are not in themselves so evident but are deduction and inferences from the first and which learned and very understanding men onely are capable by much discourse and reasoning to apprehend And here besides good natural faculties and ripe nesse of years there must be added the right helps of true Art and Learning since Education and Instruction are the means the one by use the other by precept to make our natural faculty of Reason both the better and the sooner able to judge rightly between Truth and Errour Good and Evil. Nay it it not all kind of Learning neither which will give a man a fitness to discern whether the Law of a Nation be conformable to right Reason or not but it must be either all Learning and Knowledge joyned together or that proper legal knowledge which is Ars aequi boni justi atque injusti Scientia the art of Equity a good Conscience the knowledge of Right Wrong Further the Judgement is not yet come to a full degree of perfectness nor competent enongh except it be fortified with a practical Knowledge too and with a Wisdome arising from Experience and Observation for he that will undertake to judge whether a Law be agreeable to natural Equity and good Reason he must not take his estimate from the matter of the Law onely but he must consider divers other circumstances besides For First He must see into the Nature Manners and Inclinations of the People for the end of all Law being but to preserve the Publick Peace and to keep the people in good order d Salus populi suprema ltx est that Law must needs be best and most rational which does soonest produce that end And therefore considering that men even by the very climate they live under are made to differ so mainly in every thing Body Soul Religion and Manners from the strange variety of Lawes which we see and read of throughout the world we cannot presently conclude any of them to be unreasonable A Law e Aristot Polltic there is mentioned amongst the Graecians whereof Pittacus is reported to have been the Author by which it was agreed that he which being overcome with drink did then strike any man should suffer punishment double as much as if he had done the same being sober No man could ever have thought this reasonable f Ebrius si delictum commiserit clement ùs est puniendus Menoc cas 326 l. 2. de Arbier Judic nu 1. that had intended thereby onely to punish the injury committed according to the gravity of the fact for who knoweth not that harm advisedly done is naturally less pardonable and therefore worthy of sharper punishment But forasmuch as none did so usually offend this way as men in that case which they wittingly fell into even because they would be so much the more freely outragious it was for their publick good where such disorder was grown to frame a positive Law or Remedy thereof accordingly And therefore in that place that was a most rational and a just Law A justification whereof we may finde in the Roman Law it self Nonnunquam evenit sayes Saturninus g L. 16. dig de poen perag 10. ut aliquorum malificiorum suppliciae exacerbentur quoties nimium multis personis grassantibus exemplo opus sit It sometimes comes to pass that some certain offences are the more sharply chastised when offenders therein grow so numerous as that it is necessary to make them exemplary for which severity the Law-givers are no way censurable but the wicked inclinations of men are to be taxed which have enforced it from them Our Saviour himself did excuse Moses for suffering the Jewes to put away their wives for lesser causes than for Adultery because of the hardness of their hearts though from the beginning it was not so h Matth. 19. that is though it was not agreeable to nature nor to the practise that had alwayes been It being the lesser evil to dismiss them fairly than to prosecute them with continual hatred out of which greater evils might ensue to which he knew the Jewes such was the malignity of their nature might soon be tempted Likewise it is not void of reason neither that the same faule should be punished with greater severity in one State where the opportunities of committing it are greater the inclinations of the people more prone to offend therein and the prejudice thence arising is more considerable than in another where it is not so Evenit sayes the same Saturninus i D.l. 16. par 9. ut eadem scelera in quibusdam provinâ—iis gravius plectantur ut in Africa messium incensores in Mysia vitium ubi metalla sunt adulteratores monetae It happens that the same foul actions are more heavily punished in certain Provinces as those that set fire on Corn in Africa on Vines in Mysia and corrupters of currant Money where it is of Mettal Neither is it any injustice or cruelty thus to vary Non statim debet videri tyrannis siquid gravius aut remissius publicae necessitatis causa in Legibus statuitur nam sine tali injuria respublicae non possunt regi sayes Conradus Lagus k Method jur civ part 1. c. 4. nu 7. It ought not to be looked upon as tyranny if at any time the hand of the Law be sometimes heavier and sometimes lighter as publick necessities shall command for without such inequality of measure Common wealths cannot be governed And yet all this while here is no repugnancy to Nature neither for the general principle of nature and of Nations which is to punish offences that are past and to suppress them for the future is still observed onely it being accommodated to several nations which are various and differing it cannot possibly be executed by the same coertion or penalties nor in one and the same manner Secondly the form and kind of Goverment must be respected also for some Laws may be judged very good and fitting for a Monarchy which cannot be so accounted of in a Government by a few or by the whole people or in such a one as is mixed and made up out of them all Thirdly when a Justice of the Law is doubted it must be examined what urgency of affairs there was at that time when the Law was made and whether some necessity and great reason of State did not enforce it For those that guide the stern
do see those lets and difficulties in preserving the whole which others cannot discern and therefore it is no marvel if such Lawes be enacted sometimes for which no reason can be rendred Non emnium quae à majoribus constituta sunt ratio redda potest l L. 20. dig de legib A reason cannot be given for every thing that our Ancestors have established for a Law Fourthly A Law that may be mischievous to divers particular persons though otherwise very innocent must not therefore be presently condemned as unreasonable so that it be convenient and profitable for the publick welfare Jura non in singulas personas sed generaliter constituuntur m L. 8. Dig. de legib Lawes are ordained for the generalities sake not to provide for each individual person whose particular interest must suffer rather than the whole society be brought into jeopardy n Livius l. 4. de bello Macedon l. 11. dig de just jur A particular mis-chief is better than a general inconvenience Nulla lex satis commoda est omnibus id tantùm quaeritur an pluribus in summa an prosit No Law is every way beneficial unto all that onely is enquired into whether it be generally profitable and to the most Fifthly A Nationall Law that is generally and in most of its dictates and principles very just and equitable and universally so acknowledg'd by the wisest and most judicious men and Nations is not to be censured for some few particular constitutions which may seem hard and rigorous or whereof the Justice Equity or Reason is not so evident for this enterprise of making Lawes is the weightiest thing which any man can take upon him And where a multitude of Laws comes to be made by men the best of whom are subject unto errors and for cases of infinite number wonderful variety some few deviations if any be may be excused It may well suffice that the Body is fair and the Specks but few Sixthly we can by no meanes allow of their way of judging who are ready to measure the goodnesse of Lawes by the corrupt and evill practises of those that are instrumental to administer them Neither are Lawes to be judged such as their execution is Can a fountaine be judged the worse because it is so unhappy as to run through a foule and slimy channell or a chast Matron traduced because violence has polluted her so neither can the Law be justly charged with the exorbitancies of men which it self condemns and was purposely made to revenge and punish them and would do so too if violence power and fraud did not obstruct its course Seventhly we can as little esteem those competent and fitting Judges of a Law that are so forward to asperse and make it infamous because by ancient institution it was once ministerial and attended upon a power and function which they ever disesteemed and have lately seen abolished Upon this ground and no other that can be imagined have divers uttered their bitter and contumelious invectives against the Roman Civil Law having been helpfull in the exercise of the Ecclesiastical jurisdiction of this Nation which because they see eradicated and quite taken away they judge the other quite uselesse and therefore in their conceit ought not to be kept or continued here any longer In which argument were there any strength of Reason it might be more strongly enforc'd against the Commmon Law it selfe the intent and scope whereof being to set up and maintain an absolute successive Monarchy in this Nation and to keep the people in a subjection under it that Government being now thrown down it may be inferr'd that the Law also which did found and support it should never be made use of more and that a Law of greater liberty and freedome should be set up in place of it and so in conclusion the reason of these disputants would allow us no Law at all But these must not be ignorant that the Civil Law was originally made least of all for Ecclesiasticall matters nor yet for so few cases as in this Nation it was permitted to deal in but it was first ordained to guide the mightiest and vastest Empire that the world hath yet known and under it the same grew and prospered to the terror of its enemies the joy and comfort of its friends and confederates and to the astonishment of the whole Earth Indeed before the first foundations of this Law were laid the Romans did not disdaine to fetch their Lawes from Athens that City which was once the nurse of Reason and flourisht in eloquence and brave atchievements more then all Greece whence the learned Fathers of the Church suckt literature Basil his eloquence Nazianzen his strength and others their flowing Oratory that Athens which who had not seen is by Lysippus accounted a very block But since this beautifull fabrick of the Civil Law was reared up and came to the perfection we now see it in it did not onely order and compose all matters of publick Justice and of private Right in that State but is since through the singular treasures of Wisdome and purest Reason laid up there propagated also to other Nations who constantly use it in their Courts in conjunction with their own Lawes And in conformity to other Nations did it come to passe that the use of it was admitted and brought into the Ecclesiasticall and other Courts of this Nation where naturall Equity and the best Reason came to be dispensed in the doing of right and justice and especially for commerce with Nations abroad whereunto that knowledge is most requisite Therefore to say that the Civil Law is uselesse because the Ecclesiasticall power is thrown out is as much as if we said we have no further need of naturall Equity or right Reason nor need to treat with forreign Nations any longer nor now be so wise as we have been and as other Nations are Lastly though the wisest of a people have upon mature deliberation agreed upon a Law and the Legislative power of the Nation has enacted it yet that does not presently conclude the same to be rationall for since the people of other Nations are partakers of the same Nature Reason Learning and Experience with them except it can appear rationall to others also that are taught and guided by the same principles it is not to be deemed rationall And from this single ground onely was it that the Roman Civil Law came to be so universally embraced by other Nations and to passe so generally for a most rationall and just Law because more naturall and common principles of Reason Justice and Equity were found therein then in any other Law of Mans ordaining and because we meet with that reason there that is universall and common to all mankind And if there be any certainty of Reason in matters of humane discourse as we must admit there is else we shall put out one of the chiefest lights that
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
Regiae ex-leverunt iterumque caepit Populus Romanus incerto magis jure consuetudine aliqua uti quà m perlata lege ià que prope vig nti annis p ssus est Kings being driven out of the Empire their Lawes presently ceased and the people of Rome did again begin to be governed partly by arbitrary discretion and partly by custome rather then by any written Law and so continued for twenty years together And so it comes to passe that new Lawes are alwaies prepared to suit with a new Government Yet upon no change whatsoever are meer rationall Lawes repealed or grow out of use The reason hereof is because men can never lose their Nature forgoe their Understanding or quit their Reason Neither can a supposition be admitted that such Laws as these can be unsuitable to any Government for what kind of Government hath been hitherto devised by Man or established in any Nation with the which naturall Equity or the dictates of right Reason has not suited Nay it should be rather concluded there may be a Tyranny but there can be no government without them Hereupon it has been that no change that ever happened in the Roman state no nor the overthrow of the State it self could take away the force or use of the Roman Civil Law but that other Nations have assumed it into their territories and have made it serviceable to their occasions and wayes of governing how various and differing soever those occasions and kindes of government have been Furthermore though Lawes with all other worldly things besides have their times to waxe old and as it were decrepite in according to that of Claudian Firmatur senium juris priscamque resumunt Caniciem leges emendanturque vetustae Acceduntque novae Yet those Lawes that are inspired by Nature Reason and pure Equity can never in any time in all places at once lose their esteem or use These are the Lawes that carry a clause of perpetuity with them they were first born with Man and can never dye before him It might well be reckoned amongst the wonders of the World that the Civil Law made so many hundred years agone and which has seen the spoil and overthrow of Rome it selfe and many other States and Empires besides should still flourish in the Europaean Nations as if it were but new sprung up but that surely the eminent wisdome and known reason that is in it hath given that Law a life as lasting as the World it selfe It hath been observed of all Arts and Sciences that there is a kind of circular progresse in them they have their birth their growth their flourishing their failing their fading and within a while after their resurrection and reflourishing again And Aristotle f 1. Decaele ◠Mottor himself who held the Arts Eternall as he did the World yet tells us there was alwaies a rising and a falling of them as of the Starres so as sometimes they flourished in one place and age and sometimes in another as the Starres sometimes shine in our Hemisphere sometimes in the other And so it may fare with that Noble and usefull Science of the Civil Law in like manner it may be obscured and under a dark thick cloud for a while in one place or other but it can never be irrecoverably lost every where but it will still find some place to prosper in till at last it be even courted to return thither from whence it was before expel'd Lastly to shaw the benefit of clear and rationall Justice yet further As it is of highest advantage and benefit to a Nation to purchase the acquaintance and correspondence of other Nations abroad as well for traffique sake by exchanging their Commodities together as also to be confoederated by a league with them to be made the stronger and likewise for doing all good reciprocall offices each to other so nothing can more strongly invite forreigners frequently to resort unto to trade deal and communicate with a Nation then an assurance that in all their dealings if difference happen to arise they shall receive plain and clear justice fetcht as it were from the very bowells of Heaven and Earth and grounded upon the very fame reason they bring into the Nation with them But if in stead of this fair and civil entertainment they shall be led into labyrinths of something call'd Law where they can discover no light of that reason whereof they partake as men nor yet any of those principles which in the acts of Justice are currant amongst all other civill Nations they will conclude it is not safe nor honourable to converse any longer with such a Nation but will forsake and abandon it as barbarous CHAP. VIII That Christian Nations having entertained the Civil Law into their Territories have thereby acquired to themselves the most rationall Law that hath been ordained as by the constitutions thereof will appear THus have I laid down the most excellent fruits that a Nation reaps by framing for it selfe such Lawes as are agreeable to the old and ancient grounds of Reason in Nature the Grandmother of all Law justly so styled Of the which the Nations of Christendome for these many hundreds of years have therefore very plentifully partaken because they have admitted into their Schools and Academies the Study and into their Tribunalls the use and practice of the Roman Civil Law for although all publick businesse and the generall affaires of State wherein the interest of the common welfare lyes are carried on by Laws of each Countreys own making fitted to time place persons occasion and accidents that doe happen which the Civil Law cannot be made to serve nor suit withall so vatious each Nations exigencies and occasions are Yet they borrow their greatest if not all their light and direction from the Civil Law in setling the contentious bufinesse a Omnia judicia aut distrabendarum controversiarum aut puniendorum malesiciorum causa reperta sunt Cie pro Caecin of the Subject and the matters that arise in difference betwixt party and party their perfectest Municipall Lawes having contributed so little towards their determination that in comparison of what they have made no provision at all in that which they have seemed to provide for is to be accounted nothing Most States employ their consideration most upon the publick welfare and upon such interests as have an universall effect upon the whole body as easiest to be seen and requiring but one and the same remedy for all But in a numerous multitude and where their transactions and dealings with one another are so various and indeed by different circumstances become infinite to suit each persons case and businesse with a proper and fitting rule to decide it is a work so void of end or bottome and past finishing that no State will set upon the enterprize to begin it especially when the Art and Science of the Civil Law has done it to their hands so excellently well and with so much wisdome
pure reason and true naturall equity already The Romans who through the largenesse of their Empire and the long continuance of it had dealings with the greatest part of the World then inhabited and found out and so had beyond other Nations the greatest opportunity to see the wonderfull variety of questions and controversies that fall out between Man and Man in their mutuall transactions when such a numberlesse number of them came before their own Judicatories they chiefly minded the regulation of such matters the Lawes that are now extant being almost wholly taken up in them and handling the publick very sparingly for of the fifty books of the Digests nine and forty do almost wholly consist of these private controversiall things They have taken up likewise all the Code saving a little of the first book of it the three last Books of all The Institutes are altogether spent herein excepting that one Title De public is Judiciis which is the last of all Hereof Cujacius and Duarenus render this reason Ideo neglectum est jus publicum say they quod parum videretur ejus cognitie singulis esse necessaria quòd de rebus privatis frequentiores essent lites quodque rarò de jure publico interrogaretur Therefore by the Roman Laws so little was declared concerning the publick because the knowledge of such matters was so little necessary for private men and for that most suits were brought for differences betwixt one subject and another as also because little advice was asked upon that which concerned the generall welfare There is nothing therefore upon which a Controversie may be raised in our dealings with one another in this life but to cast the right where it ought to go there may be found out in the study of the Civil Law that which though it was a Law to the Romans only yet has it the force of profound pure solid reason to all other men so perfect absolute and so rational a Systeme is it of all humane affaires and dealings whatsoever Neither are we able to prize or esteeme the singular benefit that hath grown unto the world by the Roman Civil Law being still extant as the value thereof deserveth For the precepts of Nature and the rules of Natural Reason whereof it aboundeth are either such as we of our selves could not easily have found out and then the benefit is not small to have them readily set down to our hands or if they be so clear and manifest that no man indued with reason can easily be ignorant of them yet the Law as it were borrowing them from the school of Nature to prove other things lesse manifest and to induce a necessary consequence of something which were in it self more hard and dark unlesse it should in such sort be cleared the very applying of them unto cases particular is not without most singular use and profit many wayes for mens instruction Besides be they plain of themselves or obscure the evidence of so renowned a Law added unto the natural assent of reason concerning the certainty of them doth not a little authorize and confirm the same Wherefore in as much as our actions are conversant about things beset with many circumstances which cause men of sundry wits to be also of sundry judgments concerning that which ought to be done beneficial it cannot but seem that the rule of Civil Law has herein helped our infirmity whereby we do so well understand what is right and just and what otherwise Though the first principles of the Law of Nature are easie and discerned generally by all men yet concerning the duty which Natures law doth require at the hands of men in a number of things particular so far hath the natural understanding even of sundry whole Nations been darkned that they have not discerned no not grosse injustice and injury to be so Whereby it appeareth how much we are bound to admire the profound wisdome and even honour the memory of the Roman Lawgivers who have delivered such a Law to the world a Law wherein so many things are laid open cleare and manifest as a light which otherwise might have been buried in darknesse not without the hazard or rather not with the hazard but with the certain losse of the rights of many men and nations For albert there is in the Civil Law as there is and must be in all Lawes whatsoever a very great intermixture of such things as are established by the voluntary determination and proceed from the meere will and pleasure of those that have ordained them who might limit Times Places Forms Actions Rewards punishments difference Persons might order and dispose of all Circumstances in what way and manner they pleased as the Nature Manners Government and Occasions of the Roman people most required without any respect to common and universall Reason and are therefore neither obligatory nor usefull to any other State or Nation as they were to the Roman yet there is in it a rational and natural part also which belongs unto men as men or to men as they live in politick society consisting of such common and natural notions and so abstracted from such circumstances which should change and alter it that it is alwayes permanent alike known to all men or at least to the wiser sort of men obligatory and useful every where And never was there any Humane Law that abounded so much with this as the Civil Law doth it being to be found every where about the whole Law though intermixed with that which is meerely positive proper and usefull for that State and none else or at least not fitting to be made a Rule for all people By Natural and Rational I understand that which our own natural understanding allowes as good or disallowes as evil though there were no Law to forbid the one or to prescribe the other And this was the same which St. Paul a Rom. 2.14 expresses to be the guide of the Gentiles that is of all men naturally The Gentiles which have not the Law doe by nature the things contained in the Law which shews the work of the Law written in their hearts Also that which is commonly received and practised by all men In re consensio omnium gentium lex naturae putanda est b Cicer. Tuse l. 1. what all Nations agree on is to be esteemed natural Quod mundus probat non audeo improbare sayes Baldus c Consil l. 4. Consil 496. I dare not question that which is generally allowed of Likewise I account that natural and rational which is necessary and behoofefull for those that lead their lives in any well-ordered state of government and without which we take away all possibility of a sociable life in the world Further that justice may well be esteemed natural and rational which is squired by and accommodated to the nature of the thing in question as it is defined and as it generally passes in the account of all or at
they shall become a prey to their luxuriant power and greatnesse to proclaime open Warre against such a Nation or to kindle the fire of dissension and civil discord within her own bowells or to set other Nations upon her back to bring her lower and to make her incapable of offending her weak neighbours is by many deemed a politick a Principum at civitatum imperia stabiliora sunt ab injuria finitimorum tutiora cùm societates ac faedera sic contrabuntur ut aequabilis quaedam cx omnibus potentia existat Bodin de rep l. 5. c. 6. and by some a lawfull way of Anticipation b Sunt qui neutrarum partium se esse verbo detlavant re tamen faces utrisque ad bellum inflemmandum elam suppeditant ferendum illud quidem quodammodo si suae saluti aliter consulere non possint Bodin de rep lib. 5. cap. 6. Which whether it be or no it is not proper here to determine But sure I am to be regardlesse of such an over-spreading Neighbour were a token of great improvidence and stupidity And it were but needfull for the lesser States to confoederate and combine together and to make joynt preparations to oppose her in case she shall offer to molest any one of them for so active is Man by nature that where a sufficient power to hurt is present it is seldome seen that Will is wanting c Una est tenuium adversus potentiores securiatis cautio ut scilicct potentes si necert velint non possint cùm nocendi voluntas ambitiosis bominibus imperandi cupidis nunquam sit defusure Bodin de rep lib. 5. cap. 6. Also since it is neither honourable nor advantageous for any young Prince to intermarry even with the Noblest or Richest of his own Subjects he must of necessity fit himself out of the Royal Families of other Princes here therefore they must be seen known and dealt with also Besides a free and open recourse to forreigne parts is so absolutely necessary to the very being of a Nation that we see oft-times the restraint and shutting up thereof in point of trading does so exasperate and incense a people that the whole frame is ready to be dissolved and the Subjects ready to rend one another in pieces not sparing to discharge their anger even upon the very Prince himselfe These and such like instances doe demonstrate how not only advantageous but unavoidable it is for severall and divided Kingdomes to correspond act and negotiate each with other which it is not possible for them to doe but that controversies both various and difficult and which mainly concern their severall interests even to no lesse value sometimes then whole Kingdomes will fall in that must be debated and must have some determination And when every thing else has a Law to guide it and a rule to examine and try it by insomuch as no one society or petty Common-wealth can stand without some Law the like necessity must there needs be of a Law to maintain and order the communion of Nations corresponding and acting together Si nulla est communit as quae sine jure conservari possit quod memorabili latronum exemplo probabat Aristoteles certe illa quae genus humanum aut populos complures inter se colligat jure indiget sayes d In Prolegom Grotius If there be no association which can be held up without some Law as Aristotle hoth proved by an argument drawn from that close partnership which is usually amongst Theeves and Highway-men then surely is there want of a Law to direct that grand fellowship which linkes all mankind or divers States together And again e Grot. ibid. Sicut cujusque civitatis jura utilitatem suae civitatis respiciunt ita inter civitates aut omnes aut plerasque ex consensu jura quaedam nasci potuerunt nata apparet quae utilitatem respiciciunt non coetuum singulorum sed magnae universitatis As the Laws of every particular Common-wealth are made for the benefit thereof so some certain Lawes might be and were certainly agreed upon by all or most of the Nations of the world which should conduce to the welfare not of any one people but of the great communion of all men Now the Law that guideth those transactions which are usually observed to arise between grand Societies is the Law of Nations which is most naturall and rationall in its kind too being grounded at first upon a common necessity that lay upon all Nations to have reciprocall dealings and negociations with one another which the very Nature of those several dealings and Reason it selfe dictates as necessary to be observed so that without it such communion could not long endure Under the regulation hereof comes Embassies courteous entertainment of forreigners and strangers Laws of Arms freedome of Traffique right of Contracts free passage through each others Borders Reprizalls the preserving and redemption of Captives Leagues Truces Articles and such like The strength and vertue of which Law is such that a people can with as little safety violate it by any act how advantageous soever it may seem to be to the whole Body f Qui civium rationem habendam dicunt exterorum negant hi communionem socictatem humani generis dirimunt Cicer. as a private man can in hope to benefit himselfe infringe the Law of his Countrey Sicut civis qui jus civile perrumpit utilitatis praesentis causa id convellit quo ipsius posteritatisque suae perpetuae utilitates continentur sic populus jura naturae gentiumque violans suae quoque tranquillitatis in posterum rescindit munimenta g Grot. in Prolegom As a Subject trespassing against the Law for a present advantage brings the future happinesse of himselfe and posterity into hazard so a people that shall trample upon the Law of Nature and of Nations strips it selfe of the onely preservative of their peace and safety It is not onely lawfull but honourable for any people either to right or revenge the breach of the Law of Nations And as in the state of one Countrey any man may accuse upon a publick crime so in the state of the World any people may prosecute a common offence for as there is a civil bond among all the people of one Nation so is there a naturall knot among all men in the world which should it be once dissolved it must needs endanger the whole frame of that communion Nay of such power and praeeminence is the Law of Nations that no particular Nation can lawfully prejudice the same by any their severall Laws and Ordinances h Si Princeps velit vel jus gentium primarium vel secundarium intra sui imperii limites abrogare potestate sue abuti censendus est Bar. bos Collect. in c. 9. dist 1. nn 6. more then a Man by his private resolutions the Law of the whole Common wealth or State wherein he
liveth for as a Civil Law being the act of a whole body politick doth therefore over-rule each severall part of the same body so there is no reason that any one Common-wealth of it selfe should to the prejudice of another annihilate that whereupon the whole world hath agreed for which cause the Lacedaemonians forbidding all accesse of strangers into their Coasts are in that respect both by i Lib 2. Cont. Appion Josephus and k Lib. 9. de sanand Graec. affect Theodoret deservedly blamed as being enemies to that hospitality which for common humanities sake all the Nations on earth should embrace And the Roman Civil Law is of singular use to teach and instruct in this Law too Grotius the Ornament of his Age and Nation for learning and wisdome undertaking in his most singular Book De juri belli Pacis to set down the severall heads of that Law which serves to direct those great transactions of Peace and Warre between Nation and Nation and to reconcile their differences professes to have borrowed towards the perfecting of that admirable worke much from the Books of the Civil Law because saith he l In Prolegom Rationes saepe optimas suppeditant ad demonstrandum id quod juris est naturae eidem juri neque minus gentium juri testimonium saepe praebent They often make very clear discoveries of what is the Law of Nature and doe give frequent instances both of that and of the Law of Nations also And indeed the Law of Nations is no more then that naturall Reason which Nations doe owe and are bound to render each to other whilst they correspond and act together be it in Peace or Warre and but the very same which private men ought to practice amongst themselves in their private dealings Which moved Mt. Hobbs m Lib. de Civ cap. 14. art 4. when for illustration sake he divided the Naturall Law in naturalem hominum naturalem civitatum into that of private Men and that of Nations to adde that praeoepta utriusque eadem sunt sed quia civitates semel institutae induunt proprietates hominum personales n L 76. Dig. de Judic l. 56. dig de Usufrust Popule respectu tetius generis humant privatorum locum obtinent Gâ—ot Mare lib. c. â— lex quam loquentes de hominum singulorum officio naturalem dieimus applicata totis civitalibus nationibus five gentibus vocatur jus Gentium The precepts of both are but one and the same but saith he because severall Common-wealths once setled are but as so many private men the same Law which in reference to single men we terme Naturall being applyed to whole States Nations and people is call'd the Law of Nations their duties being indeed both alike for what one man ought to render to another the same ought one Nation to render to another also So that although what ever we read of in the Text of the Civil Law was not intended by the Roman Legislators to reach or direct beyong the bounds of the Roman Empire neither could they prescribe any Law to other Nations which were in no subjection to them and even those Lawes that doe treat of Military matters Prisoners of Warre Embassies and such like doe but direct what Order Discipline shall be kept among their own Souldiers and how if any of them be taken by the Enemy they forfeit the right of Citizens for the time of their captivity but shall upon returne be restored and how free from being Sued or molested Embassadours that come from their own Provinces not from forreigne States to Rome should be and so all those constitutions and such like have still looked homewards and no further as o Lib 1. de jur Bill cap. 1. Albericus Gentilis has truly observed Yet since there is such a strong stream of Natural Reason continually flowing in the Channell of the Roman Lawes and that there is no affaire or businesse known to any part of the World now which the Roman Empire dealt not in before and their Justice still provided p A Romanis ad omnes populos Juris faecialis totiusque justitiae fontes purissimi manarunt Bodin de rep lib. 5. cap 6. for what should hinder but that the nature of affaires being the same the same generall rule of Justice and dictates of Reason may be as fitly accommodated to forreigners dealing with one another as it is clear they have been by the Civilians of all ages as to those of one and the same Nation when one common Reason is a guide and a light to them both for it is not the Persons but the Case and the Reason therein that is considerable altogether How came the old Law given to the Jewes to be in some measure obligatory to the Christians coming so long after and to be of force still and will be as long as the World endures but because besides the ceremoniall and judiciall part thereof which was observable by the Jewes onely and is now abrogated in as much as it had but a temporary cause of Gods ordaining it there was also a Naturall and a Morall part incorporated in it which all Nations and Men are bound to fulfill and keep and can never cease Haec pars legis vivit sayes q De Legib lib 9. cap. 11. nu 22. Suarez non tamen quia legis Moysis pars sed quia naturae lex est novae legis pars vivetque in sempiternum This part of the Law remains in force but not because it was a part of Moses his Law but because it was given first by Nature and the new Law has since confirmed it and the authority thereof shall remaine for ever So and in like manner there is in the Roman Civil Law a circumstantiall and a positive part which was a Law to the Romans and by them to be obeyed but neither of force or use to others being made for that people climate and government onely But there is in it too a Law whereunto by the light of Reason men find themselves bound in that they are Men a Law by composition for multitudes and politick societies of Men to be guided by a Law that may be applyed to the communion and fellowship of all Mankind or divers Nations linked in amity and friendship together and this part of the Law is naturall perpetuall belonging not to the Romans onely but to all Nations and Men neither can it have any cause of change when that which gave it its first institution remaineth for ever one and the same Yet as the Civil Law is Roman it is of no validity but as it is naturall only for as it was Roman it extended not beyond the bounds of the Roman Empire nor did it take care for any other People or Nation but the Roman onely nor could the commanding power thereof endure longer then the Empire it selfe lasted But when it treats and discusses such matters as are
by Pomponius himself in his large Narrative of the beginning and progress of the Civil Law p l. 2. Dig. De orig jur and as much by Justinian himself q Parag. 10. Inst de ju nat gent. civ And hence it is that every where throughout the Body of the Civil Law frequent and common mention is made of the Laws of the 12 Tables and several of them entirely recited and some of them confirmed and enlarged others quite taken away some of them diminished onely as to some circumstances others interpreted as being very obscure and doubtful some declared in what cases they shall be of force and in what not and others stretch'd to other cases not provided for in express words but in presumption thereby intended because so much alike to them that were expressed It was a Law of the 12 Tables Vt si quis hostem concitasset civemve hosti tradidisset capite poenas lueret r Part. 2. ca. â— that is if any shall stir up an enemy or betray to the enemy any subject he shall be punished with death The same Law is cited in l. 3. Dig. Ad l. Jul. Majest where and in other Laws of that Title it is declared it shall be high treason for any man to contrive any mischief against the State either in raising tumults or levying war against the supreme power of it or even against the enemies of it without commission or in holding correspondence with the enemy or sending any manner of aid unto them or in helping to bring them into the Territories of the Common-wealth or to betray the army or any part thereof or any place of strength into the enemies hand or indeed to surrender it cowardly without fighting when it may be kept or to plot how publick hostages may escape or for a General to leave the army without leave obtained or not to give up his charge to him that by publick appointment is to succeed him after the State has once discharged him The punishment whereof is not onely capital but the memory and name of the offender is to be remembred no more his goods are confiscated and not to go to his own children s Li 5. Co. ad l. Iul. Majest parag 1. Again by the Law of the 12 Tables it was provided first that the custody of such as were mad and the managing of their estate should be in the hands of the next heir male Also if any one come to be a prodigal or spend-thrift the Magistrate first examining the matter should forbid him the ordering of his own estate and the administration thereof should be in the next heir male t Part. 3. ca. 5 6. The last of which laws may be found single in l. 1. Dig. De curator furios and both of them joyned together Inst De curator parag 3. Where the care of the Law in providing governours for those that are not able to help themselves nor follow their affairs is extended to Idiots to persons that are deaf and dumb and to such as labour under such an incurable disease as is never like to leave them and renders them unfit to attend their business as well as to mad men prodigals declaring him to be a prodigal Qui neque tempus neque finem expensarum habet sed bona sua dilacerando dissipando profundit who wastes without regard either of time or measure a mad man qui rabie quadam animi agitur who is in a violeut fury an idiot qui sine tumultu ac clamoribus desipit who is void of understanding but never rages And further the Law proceedeth in avoiding and disanulling all contracts negotiations and dealings which such persons shall have made for themselves after Guardians are once assigned them yet with this difference that a Prodigal or such as have common reason though otherwise very impotent and needing a curator may contract to advantage themselves though not to their loss and hinderance But such as want capacitie and understanding can do no good for themselves u L. 6. Dig. De verb. oblig l. 5. Dig-dereg jur And although the Law of the 12 Tables seems to bestow upon the Guardian of such disabled persons absolute power over their estates yet the Civil Law will have that understood to reach no further then to the husbanding of their estates for their use and benefit for it will not permit them to sell aliene or mortgage any thing that does belong unto them except that upon examination of the Magistrate it be found advantageable and fit to be done and that the Magistrate does expresly make his decree to that purpose Insomuch as if money be taken up by the Guardian for the need and to the use of any such person and his land mortgaged for payment of it yet if it be not done by the license of the Magistrate the serving of that impotent mans necessity how extreme soever will not make that mortgage the more forcible such care has the Law to preserve the patrimony of such from being pass'd away Yet since the money lent was so well imployed the Law that suffers no man to be enriched with anothers detriment gives the lender a personal action whereby to recover what he lent x L. 2. Co. de curat furios Lastly does the Civil Law afford more plentiful provision on any subject then that of last Wills and Testaments Yet the first rise and foundation of all that is written therein came first from that Law of the 12 Tables Vti quisque rei sui legasset ita jus esto y Part. 3. ca. 11. that is As a man shall order by his will in any thing that is his own so let it be The very words of which Law are repeated Inst De leg Falcid in princ and l. 120. Dig. De verb. signific But the questions falling under this head do not onely take up whole titles in the Law and those very large ones too but also many of them lie dispersed up and down in all places and parts of the Law So that generally it may be observed what Laws soever are written almost on any subject are but as so many explanations or enlargements made by the old primitive Lawyers such as Gaius Scaevola Papinian Vlpian Paulus Affrican and the rest of those Worthies and are as it were their Comments on the Law of Nature and of Nations and upon this Law of the 12 Tables at first a forreign Law but brought into the Roman Common-wealth by a common consent of all the people from such Nations as for rule and government might justly be an example to all their neighbours In like manner the Sea Laws that were admitted into the Roman State and incorporated amongst their Laws were fetch'd from another people namely the people of Rhodes Islanders in the Carpathian Sea bordering upon Caria in Asia who in respect of the mighty concourse of seafaring-men thither and their continual trade and
potency by Sea grew so expert in the regulation of all matters and differences thereto appertaining and their determinations therein were esteemed so just and equitable that their Laws in such affairs have been held oracles ever since And therefore Antoninus the Emperour to a complaint that was made unto him by Eudaemon whose goods had been seized by some publick officers upon a shipwrack gave him this answer Ego quidem Mundi Dominus lex autem Maris Lege id Rhodia quae de rebus nauticis praescripta est judicetur quatenus ei nulla nostrarum legum adversatur z L. 9. Dig. De lege Rhod. That is I am the Lord of the world but the Law is the Empress of the Sea Let the Rhodian Law which has the regulating of Sea matters decide it so that none of our own Laws be opposite thereunto And generally it was their custome and usage that whensoever they conquered any Nation they did not onely give them Laws as conquerours use to do to those whom they subdue but I may say they received Laws from them too For what Laws practises or wayes of government they found there or any where else where they came that were laudable and useful in their State they carried them home and there put them in practise observing them rather with humility then rejecting them with disdain Majoribus nostris saith Salust as Baldwine quotes him in his Prolegomena speaking of the Romans superbia non obstabat quo minus aliena instituta si modò proba erant imitarentur Imitari quà m invidere bonis malebant quòd utique apud socios vel hostes idoneum videbatur cum summo studio domi exequebantur Our Ancestors were not so high minded as not to imitate such rules and customes of other Nations as they found to be good chusing rather to tread in the steps of vertuous and well disposed people then to envy them Therefore what either their allies or enemies afforded that was useful and fitting they greedily embraced and practised it in their own State And if Salust may be thought partial because a Roman writer let Polybius speak that was a Graecian They were always so wise saith he as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to take and apply the best customes of other Nations to their own use Athenaeus saith the same and declares it at large how from the beginning and first founding of the Common-wealth they took from others the best points of policy and government And so in these Laws of ours we have what all the wisest and noblest men in that Common-wealth which was the most flourishing and potent that ever was in the world could of themselves by their wisdome and reason devise or could learn from other States in about a thousand years for about so many years it was from the time of the Decemvirate unto Justinians death Tantae molis erat Romanas condere leges From this example of the Romans who admitted so freely other Laws besides their own and would rather send about to borrow Laws from others then want such as were necessary and convenient for themselves we may learn to esteem it neither shameful nor inconvenient for the people of this Nation to give such an admittance to the Roman Civil Law here as the Romans did in their State to the Laws of other Nations For it must needs draw after it much benefit and no prejudice if it be done with these cautions First that it be a free and a voluntary act of our own and not imposed upon us by a forreign power Secondly that it be admitted meerly to supply the defects of our own Laws and to have a resolving power in such cases onely where our own Laws have made no determination at all Thirdly so little to be made use of in opposition to our own municipal Law as not so much as to be compared with it Fourthly that it be of greatest force in all cases where there is greatest need of equity and a good conscience whereof there is more to be found in that Law then in any other Law of Man Fifthly that it may order and determine all matters transacted and arising upon the Sea or contracted and done in forreign parts to which the Laws of the Land are most incongruous and less satisfactory to those whom they concern being chiefly strangers and of another Nation Lastly that if at any time the use and exercise thereof should be stretch'd beyond the bounds that are allowed it it should be penall but be check'd by such equal and indifferent Umpires as are parties in neither of both professions For where an incrochment is pretended to be made by either Law upon the other neither seems to be competent enough to judge the difference or to condemn the other Under these cautions to admit the use of the Civil Law into this Nation that in the doing of justice where our own Laws fail we may be sure to be supplied by another is no more then what the Romans themselves a renowned and wise people did by the Laws of other Nations and what other Nations do at this day by the Civil Law it self which they do practise and use as frequently as they do their own 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 BEsides that this Law was at first derived from such Nations as in their time were renowned for Policy and Wisdome and was a chief means to convey the Romans to their greatness this also may be said thereof that can be said of no other humane Law besides That though it has been never seen that any Law has lasted longer then the State it self for whch it was first ordained but both have been buried in the same sepulchre together yet this Law is in being to this very day after the Roman State it self has so long laine intombed in its own ashes Jus Justiniani praescriptum libris non Civitatis tantùm est sed Gentium naturae aptatum sic est ad naturam universam ut imperio extincto ipsum jus-diu sepultum surrexerit tamen in omnes se effuderit gentes humanas Ergo Principibus stat etsi est privatis conditum à Justiniano sayes Albericus Gentilis a Lib. 1. De ju Bell. ca. 3. The Law that is set down in the books of Justinian is not the Law of one City onely but is the Law of Nature and Nations and is so throughout fitted to very Nature it self that when the Roman Empire was quite extinct yet the Law of the Empire after it had lain long as it were buried sprung up again and spread it self into all Nations Therefore now it is become a standing Law to Princes although made at first by Justinian for the use of
lib. 7. The Laws that were proper for the Romans suit not so well with others the manner of living is not now as it then was the state of affairs is clean changed climates differ and the tempers of people differ too new and strange accidents do frequently arise which will require new constitutions to settle them the form of governing is divers in several times places the Laws therfore cannot possibly be the same Monarchical Laws are of no use to a Popular government and Popular Laws do not fit a Monarchical State Severe edicts will not suit with a milde and gentle people and contrariwise barbarous or untractable natures must not be dealt withall by gentleness or clemency It may therefore be questioned how the Civil Law that was made so many hundred years ago and for one single Nation can be accomodated to other Nations coming in so long a tract of time after them and differing from them in habit language situation manners and form of govermnent Besides to hear of the general use of the Civil Law in forreign parts is so odious and offensive a thing to some humorous Anticivilians that although they be so learned that they must needs know it to be true and having travailed abroad must needs have seen it yet to take away all belief thereof from the people of this Nation lest they should look too favourably upon it they do too frequently suggest in their writings That in France it has been forbidden under a penalty to read the Civil Law to any publick audience and those that should hear the same read were also to undergo the same punishment And that in Spain to cite the authority of the Civil Law in Court has been made an offence no less then capital But they do not add withall which they know they may as truly that these sharp edicts lasted not long but grew out of use very long ago and that the Civil Law does flourish no where so much as in those two great Monarchies and so has done for a long time together and have both sent forth men as famous and renowned in that profession as in any other of whom mention shall be made hereafter For both the study and practice of the Civil Law has been found of such absolute use and necessity that those States that have been brought upon some pretence of convenience to suppress it have been glad after some little want thereof to reestablish it and set it up again Baldwine in his Prolegomena takes in all Christendome in this particular Religio Christiana saith he probavit retinuitque politicas Romanorum leges quas aequitate summa subnixas naturalium notionum honestati proximas esse videbat easque reverita est tanquam Dei dona beneficia Christian Religion hath allowed of and kept the Roman Laws which it saw were grounded upon pure equity and came nearest to natural integrity it self and hath ever since reverenced them as the gifts of God and blessings bestow'd on Man Jus Civile Romanorum sayes Wesenbeck o Parat Dig. De legib nu 9. propter summam aequitatem prudentiam jus quasi gentium omnium populorum bene institutorum commune est The Civil Law of the Romans for its special equity and wisdome is come to be as it were the Law of Nations and of all well ordered people Jus Romanum tam aequum est rationi consentaneum sayes Molinaeus p Ad consuetud Paris Tit. Des fiefs nu 110. ut omnium fere Christianarum gentium usu approbatione commune sit effectum The Roman Law is so equal and so coming up to reason it self that by the usage and acceptation of almost all Christian Nations it is turn'd into a generall and common Law Hoc jus commune saith Peckius q Ca. 28. De Reg. jur in 6. in princip quod tantis vigiliis excogitatum inventum est adeo bonum aequum semper visum fuit omnibus ut hi quos Romani imperii leges non tenent hoc ipsum jus tanquam aequitati naturali maximè consentaneum libenter sequantur ubique probent suasque leges per hoc interpretentur This common Law meaning the Roman invented and wrought out by so hard and so long labour has alwayes seemed unto all States so good and conscionable as even those Nations whom the Law of the Roman Empire does not oblige at all do notwithstanding freely follow and approve thereof as most agreeable to natural equity and do interpret their own peculiar Laws by them Particularly for France Equinarius Baro r Inst De ju nat gent. Civil sayes that si more statutore regionis aut lege Regia controversiae dirimi non possint ad jus Caesareum velut ad 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Judices regii caeterique laici confugiunt If there be no custome or constitution to determine the controversie both Judges and people go to the imperiall Law as the best that ever was And a little after Jus Romanum saith he commune jus Franci appellant interdum absolutè jus vel jus civile quòd eo jure communiter omnes regiones utantur ubi pactum mos lex regia desideratur We Frenchmen call the Roman Law the common Law and sometimes simply the Law or the Civil Law because that Law all Nations do commonly use where agreement custome and particular Law is wanting Annaeus Robertus s Rer. Judic lib. 2. ca. 1. another French Lawyer sayes that some Provinces in France either by special priviledge or by grant from their Kings heretofore made do use the Roman Laws as the Territory of Tholose and that of Daulphine and some others and these are call'd Provinciae juris scripti the provinces of the written Law some others saith he and indeed the most and best Provinces are governed by unwritten customes but in the end he adds for the whole Kingdome thus Civile Romanorum jus in senatu tribunalibus Franciae citare licet non quòd Romanis legibus parere necesse habeamus sed ut aequitatis ratio ex tot clarissimorum prudentissimorum Jurisconsultorum responsis attendi inspici queat The Civil Law of the Romans is alledged in the judicatories of France not that we think our selves bound to them but that out of the resolutions of so many most famous and most prudent Lawyers the rule of equity might be extracted For Spain Fernandus Vasquius t De succes creat lib. 3. parag 26. limitat 31. nu 71. one of their own Lawyers shall give testimony how the Imperial Law and the Law of their own Nation goes hand in hand conjoyned and link'd together Jus Civile Hispanorum saith he hospitio voluntari recepit jus civile Romanorum jamque nostrum jus civile Hispanicum jus civile Romanorum simul pariterque coeunt licet ex vi jurisdictionis illud recipere nos Hispani non teneremur The Law of Spain hath given a free admittance to
flow And therefore when the learned of that profession sate in divers Judicatories of England distribution of justice was ever after the same rules in such cases wherein no special Law was or could be made to guide them Secondly it cannot be devised how such cases as neither the Law nor the custome of the place has specially provided in can be well understood and receive a true and right judgment without the help of that profession All other learning besides that is taken up in the consideration of things that are clean of another nature and does not consider what dealings there are between man and man subjects and forreigners and what justice and equity does require in each of them as that exactly doth As for vulgar and common reason it is of use in matters that are obvious to sense and to the first apprehension and which are ministerial to the maintaining of life and livelyhood But where the discursive faculty must be employed and great reasoning and a long experience is required as in the things we now speak of ordinary reason if we presume upon it will sooner lead us into errour then be any advantage towards a solid and right judgment Nay so unable are the common capacities to discern and judge of them that it is usual for the Judges of the Law themselves to be at a stand and to spend some time in study and counsel ere they can resolve some questions that do arise so intricate and perplexed are they Thirdly it is the nature and practice of all States and people besides their own proper Laws to use such as are common to all other Nations and men and so no strange thing to cherish two Laws in one Common-wealth as some do too vainly imagine Omnes populi qui legibus moribus reguntur partim suo proprio partim communi omnium hominum jure utuntur sayes Gaius f L. 9. Dig. De just jur and Justinian g Parag. 1. Inst Deju nat gent. civ All people that are guided by any Law or custome at all are guided by a Law common to others as well as by that that is peculiar to themselves for if the Law of a Nation be not universal enough as indeed none is but that in the ministration of justice there will every day arise such questions which the particular Law has not touch'd upon if there be not some other Law to flie to there must necessarily ensue either a failer of justice as to those cases which would draw on a self-revenge or else the setling them must be arbitrary and at will which a people will not long endure Besides there is no Nation in the World that abounds with all things There is no people so well fortified but that they may stand in need of the assistance of others either in matter of commerce or to joyn in opposing a common enemy who watches to destroy them both When as therefore the imploring of this forreign help or the transportation of our native commodities to those that can supply us with theirs which we have not drives us to a necessity of dealing with other people it is substantially needfull also to order such dealings by to have some Law or rules generally known and unquestionably just to both There being therefore a necessity of another Law besides the particular Law of each Countrey the Civil Law has been chosen by most forreign States because it has from the time of the Romans run through all Nations and has been so generally applauded and allowed of by all that now at last it has purchased to it self the honour to be styled Jus Gentium the Law of Nations or jus commune the common Law of all Europe because it hath more in it of the Law of Nature that is common to all mankind then any other Law of Man Fourthly the Civil Law is of such large extent and so vast a comprehension that nothing can fall out wherein the ministration of Law equity or any part of justice may be necessary which either the words of that Law or the reason thereof will not decide For indeed the Romans through the Universal power they had over a great part of the World and their conversing several wayes with the rest were brought acquainted with the nature and state of all Humane affairs of what kind soever Fifthly it provides not for the welfare and interest of one Nation onely as a particular Law does but contemplates and takes care for the general affairs of all people For it treats of all manner of differences arising between one State and another of the Laws of war and articles of peace of leagues truces reprizals rights and priviledges of Embassadours and redemption of prisoners of precedencies due to Princes of the freedome of trade to forreiguers and of the restraint thereof upon just and weighty reasons of the free and common use of the Sea and how it may be interdicted or limited of all contracts in and about shipping or transportation of damages or injuries done at Sea of Customes Wrecks Pyracies Salvage or contribution of assurances made upon ships or goods of the carrying of Armes Money or Men to furnish or strengthen our enemies of the conditions given for the surrendring besieged places by whom they may be effectually made and how far they may be extended whether change of governour and government can dissolve amity friendship and respect between us and other States These and such like are matters of concernment to other States as well as to our selves and are not medled with by Municipal Laws but fall under the learning of the Civil Law onely whereby it must needs be accounted a most noble and usefull science the profit thereof being not confin'd to one Territory but communicable to the whole society of Men. Sixthly the precepts and rules of this Law are but the dictates of natural reason and which command the assent and approbation of the most judicious when first propounded And so satisfactory and convincing is the justice thereof both to subjects and strangers of other Nations that it silenceth the complaints of those who are thereby condemned their own reason and consciousness concurring in that condemnation Seventhly it is the use of the Civil Law that holds up the entercourse and correspondence of nations each with other for where the rules of judging controversies as oft as they do arise are certainly known and allowed of there any Prince or people will be strongly invited to Trade make Leagues intermarry send their Embassadours and communicate all other offices of love and friendship whatsoever because they know what dealing they shall have from them and what justice to expect at their hands But where illud justum est quod est utile that is where advantage does rather set the rule for justice then right reason or where it must be administred by prescriptions of their own devising which none can discern any equity or reason in nor understand
World Therefore what high applause soever may be given to the local constitutions of any people as questionless they are all useful within their proper territories yet it is a truth unquestionable that in the account of other Nations whatsoever the case or question be be it between their own subjects so that their own National Laws and customes do not specially order it or be it between them and other Princes or their subjects the Civil Law is the straitest rule and the best guide to decide it by and the art and skill to dispense equal right and exact justice to all men is to be learnt from the study of no other Law of mans creation but that Law onely Nihil aliud est jus Civile quà m sententiae quaedam à veteribus Jurisconsult is pronunciatae quae in certum redactae ordinem dijudicandi rationem nostr is Jurisperit is ostendunt says Machiavell himself in his Prooem to his books de republica The Civil Law is nothing more then certain dictates or principles declared by the ancient lawyers undoubtedly meaning Papinian Vlpian Scaevola Africanus Pomponius Neratins Celsus Marcianus and the rest whose names are prefixed before their several Laws in the Digest which being put into good order do instruct others in the wayes of administring right and justice And hence is it that in all the Universities throughout the World I will not except England the Law that is studied the Law that is publickly read and taught in their Schools the Law wherein degrees are taken is the Civil Law CHAP. XII An Answer to the main Objections that are now adayes made against the continuance of the Civil Law within this Nation THese things that have been thus truly delivered to the praise and commendation of the Civil Law being clear and evident our Adversaries the Anticivilians will not so vainly contend as to oppose them or to detract from the worth of that learning which has been so generally owned by all the World nor was ever brought into any question since it was first propagated and made known to other Nations besides the Roman They will as they must admit and acknowledge that the Civil Law doth more abound with natural reason and equity then any other Law of mans establishing that it has spread further into the World then any Law ever did and has been more studied and adorned with the writings of the learned of all Nations and languages then any Law that yet has been that the profession thereof is of so large a compass that it takes in and treats of all the affairs contracts and dealings of the World that Princes freely entertain it into their Judicatories and minister right and justice onely by the learned and Graduates of that profession that the principles of solid wisdome and best Moral Honesty are taught thereby that it has described and set down the duties of all people of what relation soever more amply and more to the pattern of nature and right reason then any other Law has done Yet this free and ample acknowledgment notwithstanding they will not admit the use and practise thereof in the ministration of justice within this nation to be cōvenient or necessary suggesting to themselves certain reasons strong and important as they pretend why that profession how learned and wise soever in it self yet since it is become useless as to the people of this Nation it cannot conveniently as our affairs are now changed be continued here any longer as they imagine Which opinion how well it is grounded it is meet and requisite we should in the next place examine for except it may be maintained that it is also usefull and very necessary for the Common-wealth under which we now live and no way or at least in comparison of the great benefits thereof not considerably inconvenient all the other excellencies and rare qualities that can be spoken thereof will turn but into a speculative and ayrie discourse and will move nothing towards the begetting of a publick settlement thereof within the Nation for they will say all rules and instructions that are useful to inform the understanding and fashion the manners and actions of private men or of Princes as they are men onely may not presently be fitting or necessary to regulate and direct a State in the carrying on of publick business Let it therefore be added for a further commendation of the Imperial Law first that as it containes the dictates of nature the conclusions of right reason and as it sets forth the natural and essential properties of such humane things contracts and dealings of men whereof it treats of all which without comparison the greatest plenty lies recorded in the writings of the Civil Law I say as it containes all these it is so essentially necessary to the well ordering of all States and the common affairs of men that it cannot be a bolished through any change of Law or government whatsoever but at the same instant the peace and well being of that State and people must needs vanish and dissolve also For can the Sun fall from the firmament and the world not be at an end or the soule expire and the body not be void of life or motion No more can the splendour of that people endure any longer where the sun of natural equity and justice has left to shine amongst them nor can the body of a Common-wealth grow prosperous or flourishing that is fallen from the soundness of right reason which is the very soul and spirit of all Law and government for in this it is no otherwise with a whole society of men then it is with one individual person If a man shall be unnatural and cares not to observe true right and just reason in his dealings with other men he presently renders himself odious and detestable to all men and it is lookt upon as dangerous to have any dealings or to be familiar with such a person So if a State which is a collective body of men when they are appealed to for common right either by their own people or by other Nations shall administer that for right which crosses natural justice and the notions of right reason it exposes it self to scorn and obloquie it gaules and exasperates their own subjects and makes their neighbours stand at a distance with them and the condition of that State must needs be dangerous and unsure having lost their reputation both at home and abroad Onely here is the difference and it is a sad one The danger of particular injustice determines in some detriment of a few but national injustice drawes after it ofttimes the ruine and confusion of many Nations Besides the impressions of nature and reason are so strong in man and so great a part of his essence that they cannot be quite expunged or deleted in him neither can they be so long discontinued but they will at length have their return Naturam expellas furcalicet usque recurret and inclinations
the same Moreover if we will deal in forreign affairs and lanch forth into the wide Ocean and converse with forreign people and have to do with shipping negotiation and traffick without which so populous are we grown we are not able so much as to subsist or live or if we would be enabled to stand upon our own defence against a Nation that shall assault us by a war or revenge unsufferable injuries done us by making war upon them we must not then stand upon our own Legislative authority to which other Princes and people will not be obliged h Consuetudines vel statuta sunt localia fie non obligant nisi subditos Gail obs lib 2. obs 124. nu 5. but we must be contented to stand and submit our selves to such a Law how forreign soever as is proper for those very matters and to which other Nations do refer themselves which is the Civil Law that Nature has breathed out it self in and Nations have consented unto And if it be so necessary for the carrying on of forreign affairs that they cannot be transacted without it this shews a necessity of admitting of it also in the agitation of certain matters and causes at home and amongst our selves for the more ample reward and encouragement of that profession which can never be maintained or upheld by the transaction of forreign affairs onely which is not desired neither in any greater latitude or measure then has been alwayes allowed it heretofore and where the Common-Law has never known to intermeddle and in which if the Civil Law should not be used questions and differences would arise and there would be no Law or Rule found to settle them which would be a very pernicious thing So that be the authority of the Civil Law forreign which it cannot be except it were imposed upon us by some other Nation or people or be it that it were of no authority at all but what the necessary assent of our own natural reason and the consent of Nations gives it yet it were strange that we should rather chuse to have no Law at all in those matters then to receive or entertain the same for a help to direct our judgments in them It being then so necessary a Law that but by the knowledg and conduct thereof forreign affairs cannot possibly be carried on and there would be a manifest failer of justice in other matters at home without it the supposed inconvenience of having two Laws in one and the same Nation so much urged against it will appear to be a very slender and inconsiderable thing for how can that inconvenience hurt us more then it does other Nations that have Municipal Laws of their own and yet do keep the Civil Law too Besides it is so far from being an inconvenience that it is both a benefit and an honour to a people to abound in justice and to have it rather supplied by two Laws then to fail in the doing thereof by having but one And though where there be two Laws and two distinct professions of them in one State if the matters and causes whereof they are severally allowed the cognizance be not certainly assigned to each that the one may not enterfire with the other there may arise a confusion of jurisdictions and the subject will be uncertain whither to goe for justice and may be in danger to be molested by both Courts for one and the same thing which were an intollerable mischief i Gravius privatorum damno peccatur eùm inter summos magistratus curiasve majores de imperio certatur Bodin de rep lib. 3. ca. 6. Yet the Courts of the Civil Law have alwayes had their limits particularly prescribed them and the causes within their cognisance punctually set down and if they hold plea of any thing else there is a known remedy to be had to stop them by bringing prohibitions from the Common-Law which are never so soon ask'd as granted But if the Common-Law Courts shall draw to their examination such matters as do properly belong to the Civil as they have done too often or do prohibit the Civil from proceeding where they know they can do no right nor give any relief themselves as in the business of allotting portions amongst the deceaseds kindred which they never did nor can do nor will suffer the Civil Law Courts to do it neither this an heavy vexation but the blame must lie upon them But to be sure whilest there is such a correcting hand over the Courts of the Civil Law there is little ground of fear that they can trouble or molest the people further then their just power does authorise them Which may be sufficient also to remove the jealousies of those that fear if the Civil should be admitted it may in time supplant and undermine the Municipal Law of this Nation For it were a vain attempt for subordinate Courts to go about to shake the standing of that Law to whose check and controule they lie continually subject And if in forreign Nations that have their Municipal Laws all of them but no profession nor Lawyers nor Judges but of the Civil Law onely there is not any found so bold and presumptuous that dares at any time to set up the Civil Law above the particular Law or Custome of the place though opportunities to do it are not wanting but that the particular Law or Custome if any be in the case does prevail and has the praeeminence alwayes surely then the Municipal Law and customes of England are much more secure from being invaded and incroched upon when not onely the Law is distinct but there is a distinct profession thereof also from the Civil Law that bears a watchfull eye towards its own greatness and which is more that has a controuling power and as it were a sovereignty over the other Besides the very principles of the Civil Law do run clean counter to any such design it being an express Maxime in that Law That the Municipal Law and custome of any State for what concerns those that are subject to it ought to be preferr'd before any more Universal Law that is to the contrary Lex Municipalis sive consuetudo juri communi derogat k Gail obs lib. 2. obs 124. nu 2. Lex cujusque loci inspicienda est sive scripta sit sive non l Gl. in l. 5. parag 1. Dig. De jur immunit verb. legem Tam in decidendis litigantium controversiis is qui jurisdictioni praeest consuetudines loci in quo contractum est observare debet quà m in delictorum punitione ejus loci consuetudinem in quo peccatum est sequi tenetur l. si sundus Dig. de evict Doct. in l. cunctos Co. De summ Trinit And as I have said before often so I must inculcate it here still The Civil Law where ever it is admitted it comes without the least prejudice to any either Law custome or government nor alters any
of little use when for the ordering of those matters we may be supplied from the fountain it self from whence the Canon Law has got it But suppose there were such a necessary concomitancy between these two Laws and that the use and practise of the one would be a sure inlet to the other as some do too fondly imagine does it therefore follow that the errours and superstitions of the Church of Rome must needs creep in too No more surely then it follows that because the old Law that is full of Jewish rights and ceremonies is joyned to the Gospel and that we read both together we must therefore presently all become Jews And thus having satisfied all scruples that are usually made against the continuing the Civil Law within this Nation I shall but shut up all in this conclusion That seing the Roman State out of their wonderful wisdome and great experience in government and the several affairs of the World did devise a Law not onely proper for themselves but so mainly useful to other Nations also and that the industry of the learned working upon that foundation has by method order Rules expositions illustrations and treatises of all kinds reduced it to a perfect and compleat Art and Science of Law whereby the right skill and way of doing the purest and most natural justice whatsoever the case be may be taught and known And when it has from thence been ingrafted into our own and the other Universities of Europe and made one of the three chief Sciences there to which the rest of the Arts serve as it were as handmaids and servants and all for the directing of men and Nations how they should deal honestly and uprightly with one another seeing also that our very Martial affairs cannot proceed wel nor be rightly regulated without it and that those Nations whom we have most dealings and intercourse withall and to whom we should despise to be any whit inferiour do not onely keep it but also have no other profession of Law besides it and do think their own private Laws to be very insufficient and lame without it and that divers matters and causes amongst our selves will remain without any Law at all except the Civil Law be kept to order them as it did before Lastly when the Civil Law comes to help and assist and not to infringe or take away from the Municipal Law at all If we shall now abandon it and cast it out of our coasts or which is all one if we shall reward and encourage it so slenderly that no man will either think it worth his pains to study or his cost to take any degree in it to which pass it is most visibly come already I say if we shall still thus neglect or despise it either way we shall not onely set light by the Policy and Wisdome of the Romans which all other people are studious to imitate and come as near as possibly they can but we shall also deprive our selves of one excellent means to improve our knowledge and reason by our justice without it being guided by illiterate and irrational principles will be less satisfactory to the people our skill in the discipline of War and in the Laws of Armes will be very defective the very harmony of learning that has so long flourished amongst us will be dissolved when so considerable a part as the Civil Law is broken off from it other Nations will grow too wise and subtil for us and will turn and winde us as they lift and our justice at home will be lamed not being competent enough for the matters we deal in The consequence of all which will be mischief at home and dishonour abroad which all good Patriots and lovers of their Countrey will lament to see An Index of the principal matters contained in this Book A ARts and Sciences have their beginning growing falling and rising again fol. 50 Argument drawn from like case is unsufficient fol. 41 Admiralty Court proper to be managed by Civilians onely fol. 148 Athens was the place from whence the Civil Law first came fol. 29 103 B Business of other men if I expend any money or care upon though without their privity the Civil Law will see me satisfied fol. 90 Books of the Roman Laws when and where found after that learning had lain neglected a long time fol. 122 Barbarisme will be let in where the Civil Law is expell'd fol. 134 Books of the Roman Laws that were before Justinians Collection after that came forth were quite lost fol. 121 C Children if no disposition at all were made by the father did equally divide the whole estate between them by the Civil Law fol. 15. Enjoyned so to reverence their parents that they could not sue them without leave nor be witnesses against them nor marry without their consent nor charge them with any criminal act fol. 11 Collusion odious by the Civil Law and makes the act void fol. 13 The Civil Law agreeable not onely to the first principles of nature but also to others never so much remote fol. 21. made to rule the mightiest Empire that ever was and since propagated to other Nations 29. and how it came so 30. it teaches men to be virtuous and innocent 48. though sometimes in obscurity yet never to be quite lost 50. it handles publick matters very sparingly 52. custome must agree with reason 36. customes are more acceptable to the people then Laws are ibid. Cases commonly all differ from one another fol. 41 The Civil Law containes the whole reason of man both private politick and that of Nations 53 63. it runs more in a convincing then commanding style 65. most conformable to the Divine and eternal Law 66. grown to be the common authority to justifie or condemn humane actions 67. it avoids niceties and follows the true intent onely 67. it will not allow of some things because they are not worthy nor honourable though otherwise lawful 70. it is full of elemency mildness 71. it prefers equity before rigour 78. all persons of what condition soever may read their duties in it 93. The fundamentals thereof fetcht from other states the best governed that then were fol. 103. 29 Civil Law how it may be admitted into England without any inconvenience fol. 108 Civil Law almost distroyed when the Roman Empire was invaded by barbarous people 114. 116. the first books thereof being lost did much hurt and injury to those that we have now being but an extract of them 121 many of the books thereof to an infinite number perished and were lost by the sad fates that befel Rome Berytus and Constantinople 122. yet under Lotharius the Emperour it was again restored ib. and afterwards grew so great that other learning was neglected and all did study that onely 123. The Edicts of Princes how severe soever were not able to suppress it 124. no where so much in use as in Spain and France though they have both made sharpe
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
last Will Succession or by Marriage community or property of the Sea and the rights of Fishing and trading there freedome from Customes and other immunities granted to forreign Merchants Precedency amongst the Embassadours of Princes and Republicks Promises of protection and aide against enemies Entertainment and harbouring of Traytors or Rebels Interpretation of publick Leagues or National Contracts Not admitting of Embassadours or detaining them or using them in any uncivil manner Making of War or contracting of Peace Sending supplies to our enemies or oppressing our friends and confederates Imbargo's seizing upon our Merchants goods at land or stopping our ships or goods at Sea The arbitrating of differences between Nation and Nation frequently referred to Princes or other States Of the force of National Contracts and of their duration whether they shall bind successours or die with the Princes that made them Latitude of Territory and jurisdiction either upon Sea or Land These and such like are the transactions and matters that may be frequently agitated dealt in between us and other Nations wherein before we fall to an open War we chuse to reason and expostulate the matter with them sometimes we think it necessary to remonstrate the right of our cause to other Nations sometimes to declare the state of the business to our own people Neither of which can be done effectually and with advantage nor shall we be able to hold any such argument convincingly if we have not the perfect knowledg of the Law of Nations and the learning of the Civil Law which to be sure is the onely kind of Reason that other Nations knowing no other Common Law or Rule besides it for such matters will encounter us withall And since we have such great need at this time of Armies by Land and Navies by Sea to defend us from factions at home and enemies abroad I would put it to those of the Military order to consider how not onely usefull but necessary that profession is for carrying on of Military business also as well by sea as by land that all the military discipline good government that they have in their Armies and the right which they are enjoyned to afford to their very enemies is directed by the rules and principles of that profession for it must be acknowledged that the Municipal Law as to the carrying on of Martial affairs is altogether impertinent and of no use at all the same being a Law useful but in peace onely But there are peculiar Laws and a proper discipline for the state of War Sunt belli sicut pacis jura and they are accommodated to the very nature and exigencies of it some of which are That there be solemn denouncing of the war intended that all dissenters may withdraw in time and to divert other Nations from adhering That it be prosecuted by just and honourable ways without treachery corruption breach of faith poyson or secret assassination which the gallant Romans did disdaine to act though for never so great a victory That all articles and capitulations made be strictly kept and observed even towards Turkes Pagans Jews or Infidels That they be interpreted in the plainest and most equitable sense without any art or subtilty at all That an enemy after he has yielded himself be not kill'd but kept alive for exchange or ransome That what is gotten from the enemy is good and lawful purchase though it was newly taken from some of our own people or confederates so that it were but once brought safe into the enemies Quarters That the enemies countrey when it offers to yield be not laid waste burnt or destroyed That when a Town is to be stormed women children aged Ecclesiastical persons so far as is possible may be spared That it be free to friends or confederates to trade with the enemy so they carry neither victuals money armes or ammunition That the Countrey through which the Army passes no offence being given be not injured but kept from spoyl and rapine That Heraulds or messengers sent from the enemy be received and dismissed with safety That strictness and severity of discipline greater then in peace be maintained within the Camp the valiant advanced to honours and admitted to partake in the spoyl which he did help to get the cowardly disgraced the disobedient rigorously chastised the incorrigable cashiered and the aged and worn out souldier be dismissed to ease with reward and honour That a difference of degrees be observed and a subordination made as the places of command differ That for Military offences or contracts and promises made between souldier and souldier the conisance thereof be in the Court Marshall and to be tried by the Law of Armes onely That Hostages be taken and kept and may be put to death if the enemy prove perfidious That neither friends goods coming in an enemies bottome nor a friends ship though carrying enemies goods in her be taken as prize That when a victory is gotten the enemy subdued be used with all clemency and moderation That Priviledges be granted to souldiers beyond other men with an infinite number more which are no where to be found collected and laid together but in the books and writings of the Civil Law which is the onely proper learning to teach and instruct in those matters For it has been the Civilians work to draw together as it were into one body and Systeme all that the Civil Law it self does afford and whatsoever else can be gathered from the testimonies of the ancient Philosophers Historians Poets and Orators in what they are all as it were by the light of nature consenting in one and the same judgment also what has been delivered by the ancient Fathers and most approved Canons of the Church on that subject and especially to bring into argument what has been constantly upon the same occurrences in war judg'd and practised by the most War-like and Heroick Nations that have been as the Graecians Assyrians Medes Persians Lacedaemonians Carthaginians but especially the Romans with whom for experience discipline in War and justice and bravery towards their enemies no Nation that ever acted on this great Theatre of the World is to be compared And so by these helps the Laws of War in use at this day have been made and perfected only through the Civilians pains and industry neither are they to be met with any where together but in their books and writings And therefore since this profession is so useful and necessary for the souldiers business also that they cannot promise to themselves any good order wise conduct or happy success with their Martial enterprizes but by that light and direction which it affords it is evident that it could never be worse spared or discountenanced then now at this time Which I humbly leave to be further thought of by the wisdome of those that rule over us And so desiring thee to excuse me this once for appearing thus in publick being upon so pressing
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
and Common-wealths amongst so many thousands of different persons and of different humours there are many so exorbitant and turbulent that no Wit nor power of Man can be able fairely to tame or temper them The Lawes therefore must be fitted to all such publick accidents providing sharp remedies for Diseases that are acute and desperate neither must they tender the private right or safety of a few if their detriment or mischiefe may secure the whole In these cases Legum convenientiam aptitudinem semper expetimus non semper aequitatem The extremities of a Nation must be provided for by fitting and convenient meanes though the exactnesse of Right and Justice seems to be infringed for herein the Common wealth is like unto a Ship in a storm at Sea where the Master may cast over board what private mans goods he will to lighten the Ship and to preserve the whole So where an enemy with an Hostile intent is coming against a great City the City may demolish or set on fire the Suburbs rather then permit the enemy to harbour there thereby to annoy and endanger the whole City The like must the establishments of Law be that are directed to a publick end they must aime to procure the common welfare without any respect to private right or imaginary reason But in such Lawes as are purposely made to defend every mans private interest and to pacifie contentions and quarrels arising thereupon and where the publick is not concerned it not onely may but ought to be otherwise They must hold forth Nature Equity Reason and a sound judgement so as to command every judicious mans assent and approbation and even they that are cast may not complain murmure or dispute the same And in the same manner has Wesenbeck in his Paratitles upon the Digests a Tit. de Just Jur. nu 14. differenced these two sorts of Laws Jus privatum saith he quiae in reddendo cuique quod suum est versatur eò ad normam aequalitatis justitiae congruat oportet sed jus publicum non totum ad normam aequitatis vel aequalitatis ut jura privatorum sed ad id quod reip est opportunum praecipue aptatur The Law that is made for the use of each subject against another because the office of it is to give to every one his own it must measure it out by the precise rule of equality and justice But the Law that is made to order the generall welfare of the whole State is not tyed to any such rule of equity but is such as the advantages and exigencies of State require In all private affaires therefore that happen between party and party wherein there is no mixture of State-interest at all and which come to be determined by a Law we require that the rules by which such Controversies are appointed to be decided have not in circumstances for they may be arbitrary and according to meer will but in substance so sure a ground in Reason and common Equity for the most part as either to be consonant to the dictates of Nature or obvious to vulgar understandings or at least discernable by the wisest and most judicious of men acquainted with the principles of Law and the rules of Right and Justice Neither is it the bare reason of the wisest if it be such as is floating in the brain onely that will here suffice but it must be committed to writing and have such an authority to own it as is authenticall and currant amongst the greatest and best disciplined Nations also which kind of reason thus authorized especially in any ample measure is to be looked for and found onely in the Civill Law b Ratio naturalis secundum hominum captum quandoque variat multi non tam ratione ill quà m phantasia aguntur Leges autem latae à sapientissimis viris judicie omnis scculi approbatae certè cam rationem tenens Alb. Gentil de ju bel lib. 1. c. 1. CHAP. V. That the Customes of a Nation ought in like manner to agree with Reason ANd here I am not unmindfull that besides written Lawes and constitutions there are belonging to every Nation Customes and usages unwritten which have as great an over-ruling power upon the persons and rights of the people after they have been generally allowed and that their observation hath been constant and un-interrupted for a long time together And therefore sayes Modestinus a L. 40 Dig. de Leg. b Omne jus aut consensus fecit aut necessitas constituit aut firmavit consuetudo All Law proceeds either from consent necessity or custome Neither is it rare but common to find in every Nation such usages as doe intermixe themselves with the acts of Justice and the rights of the people and yet they have by long continuance so worn out their Originall that no rationall account can be given of them nor no ground in reason rendred by those that use them and yet they will not stick to sacrifice their most precious enjoyments to preserve them nor will admit of a change of them upon any pretence of greater advantages whatsoever The reason hereof lyes in the affection which the people are apt to bear towards that of which themselves are the Authors Customes being first brought in and consented to by them but Lawes are imposed on them by their Princes whether they will or no. Consuetudines sayes b Rer. Judic l. 3. s. 1. Anaeus Robertus subditis neque graves sunt neque odiosae sed leges istae municipibus videri solent supra caetoras omnes acceptissimae cùm toler abilius sit consuetudinis vinculo quà m legum necessitate astringi Quà m dulce quà m gratum est volun ariae subjicii necessitati illo juris vinculo astringi cujus cùm authores simus puderet iniquitatem aut severitatem accusare At regia edicta non ratio sed sola dominantis voluntas justs sit an injusta sancit moderatur Customes are neither burthensome nor unpleasing to the people but above all other kindes of Law seem most acceptable since it is more tolerable to be tied to Custome than to an imposed Law How sweet and pleasing is it to be subject to a necessity of ones own making and to be bound by such a Law which when we have made our selves we cannot for shame complain that it is either unjust or rigorous But the Edicts of Princes flow not from reason but from meer will without respect either to right or wrong Besides though the reason of some Customes be not now discerned yet it cannot be supposed but when they were first admitted by the people they tended to their common good For Quoties de jure populi agitur apud populum cui mutare cui abrogare cui ferre quas velit leges accipere quas velit rogationes liceat nunquam se ipse diminuet They will never prejudice their owne rights by any Custome or Law which
themselves establish sayes Quintilian a Detlam 254. Howbeit it is no more essentiall to a Law then it is to Custome to be reasonable when it is first ordained b L. 1. 2. co Quaesit longa consuet Rei non bonae consuetudo pessima est Nemo consuetudinem rationi veritati praeponat quia consuetudinem ratio veritas semper excludit sayes Saint Augustine c Lib 3. de Baptismo contra Donatistas cited in the Canon-law Dist 8. c. 4. Let no man preferre Custome before either Truth or Reason because Truth and Reason does drive contrary Custome quite away So that both in a Law and a Custome also it is equally requisite that they should both be rational CHAP. VI. Where Law or Custome is wanting to judge by President or Example has no defence in Reason ANd since Right reason is so essential to that which comes to arbitrate and judge of our Lives Livelyhoods and Interests we must crave leave to disallow of their opinion and practise who when they have neither Law nor Custome of their own countrey to guide their judgements by in any case that comes before them do not resort to the Civil Law as other Nations commonly do but do usually supply that defect by presidents thinking that any case which the Law has not provided in may be judged by a Judgement had in the like case before which certainly cannot be defended by any right reason or good judgement a Si dixcrit aliquis si vidi sic audivt en dccisiones magis risum quam fidem nostram excitat Maestert Dissertat de Artific disput parag 9. For First the conformity of one sentence to another to rational and wise men argues nothing as to right or equity but concludes a concurrency in opinion onely both which may be erroneous and mistaken Secondly as in judged cases taken meerly as such there is want of reason to perswade so there is want of authority also to oblige for what force or power can the judgements or sentences of any predecessors have to bind or limit those that shall succeed them in the same Judicatory Par in parem non habet imperium nec aliquis in seipsum Judges of equall power cannot exercise any rule over one another nor indeed can any one tye up ones own self b L. 13. parag 4. Dig ad S. C. Trâ—ble and Gothofr ibid. And therefore as it happens often that de eadem resaepe alius aliud decreverit aut judicaverit upon the same fact one Judge judges one way and another another So it is to be seen too that illi alià s aliud iisdem de rebus sentiunt judicant the very same men do determine the same fact at divers times diversly sayes Erodius c Rer. Judic lib 1. Tit. 1. c. 18. c. 26. For indeed the judgements of Men may wax perfecter by age study and experience than they were when they gave their first judgement And those that do succeed may be by many degrees more eminent in wisdome Reason Knowledge and Eperience than those that sate in the same Tribunals before them for there is in this world an undoubted wheeling in all things Knowledge Wit and Understanding does not shine and prosper so in some times as in other succeeding times they do and time to posterity may discover that to be an errour which our Ancestors thought a truth Thirdly there must needs be little value and weight laid upon foregoing Judgements even of the highest and most exemplary tribunals of men nor can they be esteemed such fit patterns for our imitation when it is considered what uncertainties they lye under what failings they are subject to and what artifices subtilties inventions practises and other undue means are too too frequently used to corrupt and poyson them For Sometimes pars major vincit meliorem the greater part weighs down the better Where many Judges are to pronounce Judgement and some one or two of them be eminently qualified above all the rest that which the greater number concurs in onely must prevail and take effect but if the wisest be dissenters numero potius quam scientia judicatur there is more of number than of weight or knowledge in such a sentence Sometimes he in whose favour sentence is given carries it but by one vote more than he against whom it passeth Sometimes some one of the Judges being more renowned or happily more eloquent than his fellowes does either through his greatnesse speech dexterity or wit draw all the rest into errour by his too powerful interposing But the danger of passing wrong and erroneous judgement is greater where the office and power of judging rests in one single person only since it is easier to draw away and overcome one than many And although it is his office to set before his eyes Law Religion Equity and Truth and remove far from him arbitrary licentious Wil Love Hatred Envy Fear Indulgence Covetousnesse all inordinate Affections whatsoever yet here too sayes Quintilian Pecunia quoque persuadet gratia autoritas dicentis dignitas postremò aspectus etiam ipse sine voce quo vel recordatio merltorum cujusque vel favies aliqua miserabilis vel formae pulchritudo sententiam dictat Money does prevail and favour and the graciousness of the suppliant and greatness does draw away and sometimes even the very presence without any speaking either through the remembrance of some eminent deservings or through the countenance being either mournful or sad to pity or to admiration beautiful is a means to melt a Judge and to corrupt and infect the Sentence It is too common also that the wrong cause is follow'd with exactest diligence strengthened with the patronage of the most the best advocates some of them happily too nearly related to the Judge himself and assisted with all other advantages that can make Victory hopeful when Right is destitue of all assistances and but weakly and faintly defended the one side too bold and pressing the other too too modest and bashful shewing a kind of guilt in blushes It is not so rare neither as were to be wished that the Regal or other Supreme power does intermeddle in the very acts of Justice either directly or by some remoter influence especially when a Nation is embroyled in troubles and divided into divers parties for in such case Justice is made subservient and ministerial to the strongest and most prevailing faction These are the dissiculties and temptations which all Courts of Justice have to contend withall under which they may more easily fall than withstand and vanquish them The Judgements therefore and Sentences which they deliver though we must acquiesce in and sit down by them as to such cases which the same are purposely given for to decide and as to such persons that are mentioned or concerned therein for else there would be no end of Controversies nor no mans Right would be
ultra accusari potest Let the Woman waite the doom of the Man if he be quitted she is thereby free and can never be accused but if he be cast that does not cast her but she shall defend her selfe notwithstanding And the reason that is assigned is observeable Quid euim si adulter inimicitiis oppressus est vel falsis argumentis testibusque subornatis apud praesidem gravatus qui aut noluit aut non petuit provocare Mulier verò judicem religiosum sortita pudicitiam suam defendet Possibly he might be oppressed with Malice or condemned by false Witnesses or the Judge might be carryed away with smooth words or meer outward shews The Woman coming under a better and more upright Judge may vindicate her chastity and clear her innocence better Neither will any likenesse of one case to another involve an absent person in such accidents as have fallen upon other men for nee in simili negoeio res inter alios actas absenti praejudicare sape constitutum est sayes the Law p L. 4. Co. Quib. res judis It has been frequently over-ruled that though the cases are never so much the same yet a third person that never was a party shall sustaine no detriment by what hath been done between those that were For besides divers Lawes that are set under other Titles there is a whole Title to the same effect q Co. Res inter alios judicas aliis non nocere Neither does the Law look upon it as any incongruous or strange thing that the same businesse should be judged diversly for it does instance where it does frequently come to passe Circa inofficiosi querelam sayes Paulus evenire plerumque assolet ut in una atqne eadom causa diversae sententiae proferantur r L. 24. dig de inoffic Testum And the same sayes Papinian Filius qui de inofficiosi actione adversus duos haeredes expertus diversas sententias judicum tulit unum vicit ab altero superatus est In an action that is brought against the Will made by a Father to the disinheriting of his owne children it is usuall to have contrary sentences pronounced the Sonne to vanquish one Executor and to be overthrown by another And therefore the practicants allow not any such plea in the Court as to say that the case hath been judg'd except there be a concurrence of all these three things together to wit that the cause and processe be the same the right of action the same and the persons the same too Å¿ Gail obs lib. 1. obs 70. nu 17. so that though the causa agendi the ground of suit were the same in all things yet if the same persons never had any such suit depending but that there is a new person in judgement which never appeared before the proceeding must now be made wholly upon a new stock without considering how and in what manner the right has been judg'd before between other persons Neither is it materiall whether the Judge that is to give the present judgement be the same that judg'd the like case before or whether they be diverse for the Law is still the same in both Menochius resolves the one case t Consil 59. Diversae sententiae saith he à diversis judicibus inter diversas personas diversis temporibus ex una eademque facti specie ferri possunt Upon one and the same fact contrary sentences may be given by severall Judges between other persons at severall times and againe u Consil 180. Cum. 51. Non aequissimi judicis est facere quod ab aliis fuit factum sed quod fieri ab illis 〈◊〉 buit sequi It is not the part of a just Judge to judge as others have done but as they and all ought to doe As to the other Christinaeus notwithstanding the great paines he has taken to gather together as many judgements and decisions of the great Councell of Machlyn in the Empire as take up six volumes yet he does not stick to say x Vol. 1. Dicis 2. That Senatus non ligatur suis anterioribus sententiis quin valeat postea contrarium judicare The Senate was not tyed to former judgements but that they might judge the quite contrary afterwards for he accounts it praise-worthy to relinquish an errour and to embrace a truth at any time nor to be possible but that the change of times should introduce change of opinions and judgements also and shews that Afflictis in his time saw that judg'd one way which Grammaticus afterwards reports to have been judg'd the contrary y Ac proptereae curia Par siâ—â—â— in sintentiis saepius haec veâ—ba subjecit Neu julicatares ad consequentia tâ—ahatur Bodin de rep l. 6. c. 6. Thus then since we require that Reason and naturall Equity should be strong and vigorous both in Law and Custome or at least no meanes repugnant to them when they come to judge us and that we see all manner of Reason to stand against judging by Presidents or foregoing judgements besides the univerfall Law and practice of Nations we conclude that the way of judging by Presidents is as erroneous a guide to walk by and as little satisfactory to the people as a Law or Custome that is void of all Equity and Reason and therefore by no meanes to be entertained or admitted And yet we must allow what Callistratus reports from the Emperour z L. 38. dig de Legib. Severus That rerum perpetuò similiter judicatarum autoritas vim legis obtinet Cases constantly judg'd one way for a long tract of time together doe set a rule to such as shall succeed for as Cujacius likens it to Custome a L. 7. dig de just ju Consuetudo saith he non valet nisi ex tempore longo usuque frequenti Ita rerum judicatarum argumentum non valet nisi ex tempore longo sive diuturnâ— frequentique judicioque simili As custome is of no force except it endures a long time and is frequently put in ure So to argue from foregoing judgements is no weighty argument except they have been many and constantly the same for a long time together In like manner it is most true that Optima legum consuetudinis interpres est res perpetuò similiter judicata The judging of the same thing alwayes in one and the same manner is the best help to understand both Law and Custome by But then it must be saith Cujacius Non quodlibet judicium sed quod numero tempore valet as if he had said It must not be once twice or thrice judged so but the judgements must be many as well as alike and it must hold on so for a long time together before at can have the force or effect of a Law and after it has so long prevailed it may be esteemed not so much Law as Reason for certainly it could not have so long endured if
the reason of it had not been evident to those whose judgements were so conformable as never to disagree therein CHAP. VII That they are great advantages which a Nation has by ruling by such a Law as is rationall THe governing and judging by that Law which Reason teacheth us cannot but be effectuall unto that Nations great good that observes the same for we see the whole world and each part thereof so compacted that as long as each thing performeth onely that worke which is naturall unto it it thereby preserveth both other things and also it selfe Contrariwise let any principall thing as the Sun the Moon any one of the Heavens or Elements but once cease or faile or swerve and who doth not easily conceive that the sequell thereof would be ruine both to it selfe and whatsoever dependeth on it As therefore the obedience of other Creatures unto the Law of Nature is the stay of the whole World so nothing is more effectuall to the upholding of any communion amongst men then to command the peoples obedience to nothing more then what Nature and Reason prompts them to and to determine their Rights by Rules which themselves cannot gainsay for when the judgements of a people are satisfied in the Reason and Justice of that which is commanded either by their own understandings or as they are taught by more knowing men they sit down in a quiet and contented submission and looking upon their Governors with the greatest Reverence and Honor they obey without complaining and thereby the publick peace is also secured But when the Lawes of a Nation that should be most clear and rationall are wrapt up in a strange language delivered in termes most intricate and the matter thereof not intelligible by any degree of true Reason or Learning the people are presently possest with a jealousie that their dearest rights and most pretious interests may miscarry under them and their surest possessions snatcht from them under pretence of a Law which they cannot discerne any Justice or Reason in till at last they fall into open rage and distemper thereby disturbing the publick peace and oft-times shaking the very Government it selfe in their fury a Legum at Ma gistratuum con temptum sequun tue populi sediti osae voces adve sus priucipes ipsos conjurationes ac defectiones Bodin de rep l. 3. c. 1. for there is no bondage like to the slavery of the Judgement and the captivity of the Will neither is there any greater occasion or ground of fear then when a man is constrained to tread such steps where his understanding cannot guide him But especially for ones fortune or personall safety to be exposed to danger in such unknown and undiscernable wayes it must needs draw on a greater distemper in the minde because of the great consequence thereon depending Moreover when the dictates and proceedings of Law are rationall we are much assisted by our Reason in a conformity and obedience to them even when we doe not exactly know the Law it selfe and we doe not so soon slip into danger or mischiefe under it when we have an inward guide to direct us in the way we are to walk in but when we are to walk in a path we know not in any kind and to observe rules which we cannot understand it is then that we wander out of one Labyrinth into another till mischiese and the penalty of the Law surprizeth us unawares Besides Lawes that carry in them honest rationall and clear principles are as so many lessons for the people to fashion their lives and actions by whose nature and manners will be much tempered by the discipline of the Law they live under for since it is the onely guard and security that they have for their lives and fortunes they will be studious in it inquisitive after it and attentive to it and so whilst they study and learne the Law to keep themselves and their estates in safety at the same time they also learn all the duties of a Morall life and suck in the truest principles of practicall integrity and civill conversation And this amongst many others hath been one very powerfull inducement to Christian Nations to receive and cherish the use of the Civil Law to much as they doe because no humane Law or Learning does so well teach men to be just vertuous innocent in all the actions of this life as that Law doth Iustitiam colimus boni aequi notitiam profitemur aequum de iniquo separantes licitum ab illicito discernentes bononon solū metu poenarū verùm etiā proemiorū quoque exhortatione efficere cupientes veram nist fallor philosophiam non simulatam affectantes saves Vlpian b L. 1. dig de Just. jur in the name of all the Lawyers We adore Justice and the knowledge of Right and Equity is our profession dividing Equity from what is unequall discerning lawfull things from unlawfull aiming to make men vertuous as well by rewarding them where they doe well as punishing them when they doe ill teaching such wisdome if I mistake not saith he as is not for shew and ostentation but is true solid and substantiall For Cujacius explaining the last words of that Law makes it the proper office of a Lawyer to teach men to bridle their Lusts and Appetites to study the common good to defend their own to keep their desires hands and eyes from the goods of others which are but the lessons of a true Philosopher Likewise the summe and substance of all that a man owes morally either to himselfe or others is comprized in the three generall precepts of the Civil Law Honestè vivere alterum non laedere suum cuique tribuere c L 10 dig de Just Jur. Parag. 1. To live soberly not to hurt another to give every one his own The first duty concernes our own selves and is the fruit of Modesty forbidding us to doe any thing whereby we may seem lewd or vitious nor to shew any kind of dissolutenesse either in our speech habit or manners and to refraine from any act quod vel nos commaculet solos sayes d D. l. 10. Cujacius that is which may stain our persons though none be privy to it but our selves The other two are the proper effects of Temperance and Justice and owing to others whom we are to live converse and deal with teaching us to abstain from theft violence rapine and injury to render back to all men what we have of theirs or doe owe them reward to vertuous actions and to evill punishment and to make full satisfaction for dammage or detriment done to others through our meanes Again though Laws very rarely continue when the stare of Government comes to be quite changed as it fell out in the Roman state at first long before the time of the Civil Law where e L. 2. Dig. de Orig. Jur. Pomponius writes that Exactis Regibus omnes leget
common to all mankind and not onely the Roman Nation did but all Nations and People doe still deal in as of contracts of all kindes both at Land and at Sea dispositions testamentary succssions in deceaseds Estates where no Will is made good offices done at anothers charge or detriment of the relations between Father and Son Husband and Wife Master and Servant Governours and Governed Magistrates supreme and subordinate of matters of property and possession injuries done to the persons or scandalls to the credit or dammages done to the goods of Men of servitudes due from Houses or Lands to other Houses Lands or Persons Crimes and Offences of all sorts and the punishments greater or lesser that attend them explanation of Lawes or Statutes or of any obscure clause in any Contract Speech or Writing whatsoever of Customes and other publick duties payable to the Exchequer Authorities Powers or Commissions granted to others Deeds of free gift Writings obligatory Instruments Pattents Charters priviledges in Writing or by prescription Customes and prescriptions to take away or diminish the right and property of others of reparations upon fraud non-age absence or other impediments unavoidable and necessary Nusances done in publick places or High-wayes or from one House to another obstructions in Rivers or Water-courses Mortgages in Law as well as Fact of goods lost in Ships Taverns Inns or delivered to Carriers to convey to other places or left with other Men to keep services due to the Common-wealth patrimoniall personall and mixt Souldiers and the exemptions and discipline belonging to them Of judiciall Tryalls in all these cases and many more where the quality of the Judge his kind of Jurisdiction the manner of Tryall the Officers assisting the kind of Evidence the Judgement the Execution thereof or remedy by way of Appeale come to be considered I say when the consideration of these severall matters is as incident to all other Nations and times that live under Order and Government as it was to the Roman and that there be delivered and laid down in the Roman Civil Law such rules and dictates as are most naturall essentiall and necessary to be observed in each of them it must needs be that the use of the Roman Civil Law in these particulars as to the matter of it can neither be locall nor temporary neither be limited to that Empire nor determine with it but must be of use every where and for so long time as the businesse to which those rules are applyed comes to be acted and dealt in which will be as long as the World it selfe endures and untill men leave to traffique and converse with one another Now as in the matters before specified the difference that arises may be sometimes between the publike and some private person sometimes between one private man and another within the same Nation so it may be also between a subject and a stranger or between strangers only or between Nation and Nation and yet the same measure of justice will hold and serve for all For look what justice may be rightly afforded between one man and another upon the generall rule of naturall equity and right reason the same may as warrantably be dispensed between one Nation and another as oft as any variance happens between them And hence it is that all those Writers that handle and treat of those controversiall things which frequently come to be disputed between one Nation and another as they are all Civilians so though they doe make use of other authorities besides yet the strongest and most convincing arguments that they bring to resolve them by are fetcht from the generall rules of Equity and right Reason set down in the Civil Law And were it not for them we had no certainty to rest upon nor any peaceable determination could be made of such controversies but the sharpest Sword must be drawn out to cut the knot asunder For what can Histories and the examples drawn from them doe towards a composure Errant qui quod exemplo fit id etiam jure fieri putant sayes r De ju offic Bellic lib. 1. ca. 2 Ayala out of Cicero It is an errour in any to think that what has once been done may therefore be lawfully done againe The force of example is weak and insufficient Sana ratio exemplis anteponitur sayes s De ju Bell. lib. 2. ca. 18. Albericus Gentilis Sound reason is far above examples Besides the integrity and truth of Histories is questionable Saepe tempori saepe affectibus serviunt and they too too often afford examples contrary each to other And moreover by as it were a generall consent of Nations there is an appealing to and a resting in the voice and judgement of the Civil Law in these cases between Nation and Nation The reason whereof is because any thing that is irrationall unnatural absurd partial injust immodest ignoble treacherous or unfaithfull that Law abhorreth and for that it is the most perfect image and representation of Nature and of the Equity and Reason Nature prescribes to humane actions that was ever yet presented or set forth to the World in a Law And therefore whosoever will observe the style of the Imperiall Law he shall find it least of all to run in this strain Sancimus Mandamus praecipimus jubemus imperamus volumus We decree command will enjoyn enact or in the like imperious and commanding way but most in a gentle soft rationall and a convincing way thus Non est aequum Nulla juris ratio aut aequitaetis benignitas patitur Bona fides non patitur Divinè admodum Non est dubium Nimis grave est Non sine ratione Nihil tam naturale Naturalem habet intellectum Dolo facit Absurdum est Contra bonos more 's est Cùm satis inhumanum est Cùm nulla ratio sit Humanitatis ac religionis Ratio Humanitatis intuitu Humanum esse probamus Ita nobis cordi pudor est Indignum est Iniquissimum est Cùm ratio naturalis A plerisque prudentum generaliter definitum est Improbum quidem criminosum Periniquum est Aequissimum visum est Aequissimum putavit Praetor Boni viri arbitratu Juxta arbitrium boni viri Hic titulus aequitatem habet naturalem Hoc edictum summam habet aequitatem sine cujusquam indignatione justa Vt moderatae rationis temperamenta defiderant Nec verecundiae nec dignitati convenit Nemo est qui nesciat and the like as if nothing were offered for a Law but what is evident in it selfe and all men must own and presently apprehend to be just and equall There was never any Law more agreeable to the Divine and to the rules of Conscience and exact righteousnesse then that Law Tertullian in his Apologetick against the Romans did acknowledg Eorum leges ad innocentiam pergere de divina lege ut antiquiore ferme mutuatas that their Laws did walk in the way to innocence and
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 Å¿ 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 10â—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
an one as the Law may possibly presume he does it rather to testifie his natural affection towards him then to demand any thing of him for the same I say if there be any such proximity or nearness and yet an eye to to future satisfaction he must declare and make protestation that it is done with that intent and not donandi animo not out of any mind to bestow it freely but to be allowed for the same else the Law will strike it out upon the score of affection and natural obligation And so did Alexander Severus declare to Mother Herennia who when she had fed and maintained at her Table her children and laid out money besides for their other uses when they came of age she demanded satisfaction of all from them but being denied it she complained to the Emperour who made her this answer Alimenta quidem quae filiis tuis praestitisti tibi reddi non justa ratione postulas cùm id exigente materna pietate feceris Si quid autem in rebus eorum utiliter probabili more impendisti si non hoc materna liberalitate sed recipiendi animo secisse te ostenderis negociorum gestorum actione id consequi potes p l. 11. Co. eod Thou hast no just reason to demand payment for that alimony and sustenance which thou didst afford thy children for very natural piety did require it of thee But if thou hast usefully and in a probable hope to advantage them expended also money about their business if thou canst make it good that thou didst it not out of a free mind nor meerly as a Mother but with an expectation to be reimbursed thereof by thy children the Law will enforce them to pay it thee back again Lastly he that will voluntarily and of himself being not commissioned act in anothers business if he intends to ground any demand upon it he must be sure not onely to think and intend a benefit or advantage to him whom he is about to serve but it must be really so For let him think it never so beneficial and wish it never so much yet if it be not so indeed the loss will be his and he can challenge no satisfaction for what he does or expendeth Vt enim eventum non spectemus sayes Uâ—pian negocium debet utiliter esse coeptum q l 10. parag 1. Dig. eod Though we value not the success yet it is requisite that it should be evidently useful or necessary when it is first undertaken Lastly not to sail any longer in an Ocean so vast and infinite having given instances enough to measure the rest of the Law by tanquam ex pede Herculem though it is the proper work of every Law that is made to declare to the people what things they ought to do and from what they must abstain and wherein they may take their full freedome r I egis viâ—us est in perare vetaâ—t permiâ—tere puntre l. 7. Dig. de legth yet no Law has ever done it so fully and perfectly as this has done For Princes Rulers Councellours of State Judges subordinate Magistrates Advocates and Clients Proctors Registers and Notaries Masters of families Husbands and Wives Children and Servants Masters and Scholars Tutours and Pupils Merchants Factours Buyers and Sellers Letters and Hirers Borrowers and Lenders Officers and Souldiers open Enemies as well as allies and Confederates Embassadours and Nuntios Conquerours and Conquered Owners Masters and Captains of Ships Pilots Mariners and Passengers Aliens and Natives Fiduciaries Mediatours Substitutes and lastly all sorts of people of what age degree or condition soever they be may read their truest duties in this Learning and be directed how to order and demean themselves aright in their several offices and functions So that when the learning of this Law is thus universal running through the several negociations and matters of intercourse between Man and Man Nation and Nation and having a resolution ready for all such questions as arise upon them and is so rational withall that its decisions are rather the strong enforcements of reason then any commands of will it ought to be no matter of wonder to us that it has found so much credit and authority with Christian Nations as to make it the rule to end their greatest Controversies The End of the First Book LEX LEGVM OR THE EXCELLENCY Of the Roman CIVIL LAW Above all other HUMANE LAWS WHATSOEVER The Second Part. London Printed for R. Royston at the Angel in Ivy-Lane 1656. LEX LEGUM OR THE EXCELLENCY Of the Roman CIVIL LAW Above all other HUMANE LAVVS WHATSOEVER CHAP. I. That the greatness and splendour of the Roman Empire does evidence the singular vertue of the Law it self to which as to its proper cause it may be ascribed ALbeit it be praise sufficient for the Roman Civil Law that it hath more of natural equity and pure reason in it then any other Law of Man and that more need not be said to divert a Nation or people from throwing it out of their Territories or disesteeming it then that they may thereby seem to abandon their own reason and stifle the very dictates of nature and even stop up that fountain from whence all their own particular Laws were at first derived for lex Romanorum legum omnium Mater nuncupatur a Addit ad Capitul Lud. Imper ca. a. tn God leg Antiqu. the Roman Law is called the Mother of all Laws that have since been made Yet because there are many other grounds upon which it may be yet further extoll'd and set up above other Laws I think I cannot spend time and pains better then to set them down especially when I see every thing is laid hold on to cry that profession down And surely if the dispensation of right justice be a principal means to make a State glorious and flourishing this Law must needs surpass in excellency all other Laws by how much the Roman State whch was all along carried on by that Law did in greatness exceed and in splendor out-shine all other States and Empires that have yet been Touching which the Roman story every where gives us to undestand that the Roman State in process of time grew so large in Dominion and Power that it spread it self almost over the whole World there being few Nations which were not brought under its rule and government and indeed was esteemed the common countrey of all men and the Center of the whole earth Tantae erant Romanorum vires ut Asia Africa maxima Europae parte subactis iisdem serme quibus Solis cursus metis imperium suum finirent sayes Loccenius b Peâ—iod Imper lib. 4. ca. 5. The potency of the Romans was grown to be such that Asia Africa and the greatest part of Europe being Conquered the Sun and the Empire did almost run the same race It maintained intercourse of Trade and held correspondence with all other Nations of what sort
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
in their gallant and heroick minds they bore did propose to themselves no other end but their temporal honour and earthly greatness not once thinking of doing honour to the great God nor looking towards any heavenly felicity that might follow after this life ended having not yet been taught or heard of any such thing yet it must be acknowledg'd that the effects which have flowed from their desire of glory and rule have been singular and admirable amongst which their just rational and honest Laws do deserve to make their memory still famous amongst men because so much use has been made thereof ever since in the governing of so many States Empires and people And well did some of the ancient Fathers of the Church as also some of our later Divines observe that without doubt God did therefore indue the Romans with such admirable skill in government and Law making that after Nations might have a good example to follow It is St Austins judgment i Lib. 5. De civitat Dei ca. 6. That the Roman Empire had that glorious increase not onely to be a fit guerdon to the vertues of such as bore rule there but also that the Citizens of heaven in their pilgrimages upon earth might seriously and attentively fix their eyes upon those examples And before him Tully as Lnd. Vives hath cited him k Lib. de caus corrupt art being to draw a Model of a Common-wealth and Laws to govern it withall sets before his eyes no other pattern but that of the Romans to which in his judgment all people should in prudence shape and conform themselves And that our Saviour Christ himself God Almighty from all eternity so disposing it should be born under the government of the Roman Empire and submit to it too may it not more then probably be inferred that it was Gods secret intent and purpose if not to bring all Christians under subjection to those very Laws under which their head was born and lived yet at least by that signal act of his to recommend that policy and government to their imitation which might be a means to propagate the Gospel of Christ to send it forth to the whole world which that Empire seemed wholly to command St Austin l Lib. 18. de civit Dei ca. 22. makes the Universal rule of the Romans a special design of God for the good of mankind Per populum Romanum placuit Deo terrarum orbem debellare ut in unam societatem reipublicae legumque perductum longè lateque pacaret It was therefore saith he Gods pleasure that the Romans should conquer and command the whole earth that being brought under one communion of government and form of Laws it might the better enjoy peace both far and wide Videtur Dominus Monarchiall Romanorum conservasse propâ—gasse ut simul propagaretur honesta eorum Politia reprimeretur incondita barbaries aliarum gentium sayes Baldwine m In his Prolegom Therefore was the Roman Empire by Gods permission so far extended that their good government might spread the more and the conversation of barbarous and wild Nations be made civil And indeed the continuance of it in such diversity of governments as Kings Consuls Tribunes Dictators Emperours cannot but shew a Divine power and a most prudent managery of affairs there in all vicissitudes For otherwise so many changes might in all likelihood have bred confusion and so consequently suppressed their rising to so great an Empire which as the last so it may be truly stiled the greatest that yet the world ever knew or heard of Thus therefore the Roman Empire having climb'd up to such an height of Soveraignty as to be a spectacle an astonishment to all other Nations n Romani trium pulcherr â—imarum virtutum justitiae inquam fortitudinâ—s ac prudentiae laudibus imperatoriisque artibus cumulaeti populos omnes in sui admirationem converteruâ—s Bodinde rep lib. 5. ca. 6. and their government being generally proposed and look'd upon as a pattern and by some judgments designed as an example by God himself for other States to follow and be directed by What does it witness less then that the Laws of such a Nation and government must needs be singular and incomparable CHAP. II. The fundamentals of the Roman Civil Law were fetch'd from other States which did then excel others most in Policy and Government THe first grounds and foundations of the Civil Law were not of the Romans own composing but were fetch'd from other Nations and those the best governed that were in being for when they had cast off Kingly government and put themselves into the form of a Common-wealth they would no longer endure the Laws that their Kings had made partly because they would not suffer any memory of their power to remaine and partly because the setting up of a new government would require necessarily the making also of new Laws which might correspond therewith Therefore since a present supply of Laws was necessary arbitrary rule being intolerable and that to frame a body of Laws themselves in a short time was impossible and not by a new-born State to be effected they appointed three eminent men to go to Athens and other Graecian Cities which had been famous for rule and administration of justice above others to fetch from thence the choicest Laws they could find At the return of those three men the Consuls that had bore the sway were deposed and both their Authority and Ensigns given unto ten men newly elected for the government of the State and were thence called Decemviri whose office it was to select the best of these Laws and by them precisely to rule and do justice to all the people The Laws that they chose and best approved of were written at first in ten Tables of Brass to which two Tables more being added afterwards they were all set up together in the open Market-place to be seen and read by the people which ever after were distinguished by the name of Leges 12 Tabularum The Laws of the 12 Tables To the direction of these Laws the Roman people were subject and conformed themselves for a long time and they were the onely Law they had Of the which Tully o Lib. 1. De Orat. gives this high testimony that this one book of these Laws both for usefulness and wisdome did transcend all the books that all the Philosophers of the world had written And although their engravement in brass could not preserve them from the injury of time nor rescue them from that universal change that altered all things in the Roman Empire whereby it came to pass that some reliques onely of them are now extant to the lamentation of all the learned Yet the Historians without any disagreeing tell us that the rise and beginning of all the Civil Law that we have in the books of Justinian came from those Laws Thus Livie Tacitus Sigonius and Rosinus And no less is delivered
Justinians frame and Collection were found at Ravenna about the same time These books were no sooner pull'd as it were out of the dust but by the same Emperours command they were every where divulged taught in Schools and Universities up and down the Empire the barbarous Laws as it were silenced and these in practise made the rule for all Tribunals And indeed the fame and reputation of them so spread all kind of learning reviving with it at the same time that in a little space of time it got footing also with the other sciences in France Spain and Italy and in all the Western part of Europe where it has been in greatest use and highest account as well in studies as in Judicatories ever since to this very age of ours Nay the Civil Law after it was once restored and taken notice of having long lain hid and concealed drew the hearts and studies of men after it in such wonderful manner and grew to that mighty eminence and power that the most were intent upon the study of it and but few in comparison lookt after any other learning Giraldus of Oxford charges it as a fault upon the students of his time and tells that one Martin a Clergy-man did sharply reprove the University of Oxford at a publick congregation for devoting themselves wholly to that study neglecting all other learning saying quòd leges Imperiales reliqua scientias omnes suffecaverant the Imperiall Laws had swallowed up all the other Sciences Also Daniel Morlaes in the same Century being in Henry the seconds time writes that the Law was so much studied in Oxford quòd pro Titio Seio Aristoteles Plato penitus oblivioni traderentur that Titius and Seius were minded altogether and Aristotle and Plato were quite forgotten And Roger Bacon that had made himself eminent in all the sciences did upbraid the Bishops of the same age for minding Divinity so little adding quòd cavillationes juris defaedarent Philophiam the sophistry of the Law would corrupt the true Philosophy Stephen Langton Arch-Bishop of Canterbury took up the same complaint in Henry the thirds time against the Monks of his time qui relicto agro veri Booz nempe sacra Scriptura ad alium agrum id est scientiam secularem pro cupiditate terrena transirent who through greediness of filthy lucre which was then to be gotten chiefest from the Law did forsake the knowledge of the Scriptures and hunt after secular knowledge The like lamentation was made by Robert Holcot of the order of the Praedicants in Northampton-shire in Edward the thirds time leges canones saith he istis temporibus innumerabiliter sunt foecundae concipiunt divitias pariunt dignitates ad illas confluunt quasi tota multitudo scholarum his diebus The Laws and Canons are immeasurably profitable in these times riches and honours spring from thence almost the whole number of Scholars resort thither for indeed the greatest professours in Theologie that were did so little content themselves with that one way of advancement that they did frequently assume degrees in Law to fit and qualifie them for other preferments also But sure it is these complaints and objurgations of private men could so little keep this luxuriant growth of the Law from spreading that the very Edicts and Decrees of Princes could not bring it down Matthew Paris in his History upon the year 1254 and in the Additions pag. 883. Edit Noviss makes mention of a constitution made and published by Pope Innocent the fourth by which it was ordained that no professour of the Laws should be promoted to any Ecclesiastical dignity in France England Scotland Spain and Hungarie and that from thenceforward the Imperial Laws should not be read in those dominions if the Kings and Princes so thought fit Pope Honorius the third forbad the reading or teaching of the Civil Law in Paris in the year 1220. i Ca super specuta ext de privileg Those Popes thought that the restraint of the Imperial Law would be a ready means to bring into request the Canon Law which was as it were but new set up Upon design therefore to bring into credit their own Ecclesiastical Law rather then out of any dislike of the Civil were those prohibitorie Decrees made however they very much failed of that effect that was intended them for we may have observed to this very time that all those Christian States that do acknowledge the Popes authority and power have so equally divided their respect between both those Laws that they have appointed to each their proper function designing the one to be serviceable to Civil matters the other to Ecclesiastical and so by such moderation have done very equal right to both At the same time that the Civil Law was publickly read at Bononia by the means of Lotharius the second it was brought into England by Theobald the Arch-Bishop of Canterbury and being publickly read in Oxford by Vacarius it grew so general a study and other learning was so much neglected upon it that King Stephen incensed thereat sent forth a peremptory command that it should be read in England no more that Vacarius should forbear to teach it any further nor that it should be lawful for any to keep any books of the Roman Laws by them Sed parùm valuit Stephani prohibitio nam eò magis invaluit virtus legis Deo favente quò cam amplius nitebatur impietas subvertere sayes Mr Selden k Dissertat ad Flet. cap. 7. parag 6. But King Stephens prohibition did prevaile but little for the power of the Law God prospering the same waxed the more vigorous when malice did most strive to destroy it Charles the ninth and Henry the third of France did also by sending forth their Edicts forbid the Civil Law to be taught in Paris or that any Degrees should be taken in that faculty Philip the fair and the Parliament of Paris anciently did straitly charge that no man should dare in any pleading to urge or cite the Roman Law against a special Law of the Nation In Spaine it has been made no less then a capital crime to offer or alledge the Roman Law as compulsive or binding And surely it is a high indignity to any Prince to have any sorreigne Law set up against and to beat down his own And therefore in the erection of Universities in France the Kings have alwayes declared that their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the subjects should be any way bound thereunto lest they should seem to derogate from the Laws of their own countrey by advancing the Laws of strangers l Bodin de rep lib. 1. ca. 8. These and such like edicts declarations of Princes have been alwayes of full force and power as most justly they ought to be to limit the vast and universal power of the Civil
Law and to keep it from getting above and prevailing over the Laws and Customes of their own Territories for that were no less then to worship two Suns in one and the same firmament and to call in the Roman Sovereignty which was long ago cast off But that the Civil Law should not be studied publickly taught no degrees taken in it nor cited in their Judicatories in a ministerial and subordinate way to their own municipal Laws and Customes or that it should not be admitted to teach us true equity and sound reason their restraining Edicts never have so far prevailed so totally to suppress it from the time of Lotharius the second the first restorer and reestablisher of it to this present which is now full 500 years Plurimùm distat lex à jure sayes the same Bodine Jus enim sine jussu ad id quod aequum bonumque est lex autem a◠imperantis majestatem pertinet There is much difference betwixt Right and Law for Right without any command insinuating it self into the soul of a just man recommendeth to that which is good and equal but Law importeth a command of some Sovereigne which may force and hurry the will to such an action which in equity or right reason may not be good or laudable As a Law to bind by its own proper power and vertue or by any authority of those that made it the Imperial Law is not admitted in any Nation Yet no Christian Nation with all the express decrees that that they have at any time made against it has been able to exclude it as it containes veram naturalem rationem optimum inter omnes leges humanas exemplum aequitatis normam authoritatem prudentum veram justitiae rationem artem scientiam juris ut bonos mores complectitur they all admit it as it does propound and hold forth true natural reason and as it is the most imitable pattern amongst all the Laws of men the rule of equity the voice of Sage men the true method of justice the art and knowledg of doing right and as it comprehends instructions for a moral life For thus to shut the door against it were to renounce reason equity justice and to defie all moral goodness Thus much may very well suffice to shew how the Roman Civil Law has had the singular honour and prerogative which no other Law has had to be rescued from that universal deluge of abolition which hath swept away all other ancient Laws besides it and not onely to out-live Rome it self but to out-stand many dangerous assaults and casualties and divers sharpe penal Edicts that have been made against it and to continue to this very time a large and accomplished body This surely next to the providence of God who hath so disposed it must needs be ascribed and the cause must needs be conceived to be some especial excellency and rare wisdome that is in the Law it selfe For else why has not other Laws continued as long as that has done CHAP. IV. That Forreigne Nations in doing of Right between Man and Man do mainly practise and make use of the Rules and dictates of the Civil Law THat the Roman Civil Law framed so many hundred years ago and devised for the use of one Nation onely is still extant and in being at this day the state it self being quite extinct possibly it may not seem commendation and praise sufficient except the use practise and observation of it up and down divers great Nations of the World be also shewed The next thing therefore that we have to say in further praise thereof is that the greatest and best ordered Nations though they manage their publick occasions and affaires of State by rules and directions of their own ordaining having an eye to the nature of their people way of government and present exigencies onely yet in the dispensation of private justice and in pacifying the debates and differences that do arise between their subjects where meer right and equity onely is considerable they use and practise the rules and principles of the Civil Law chiefly Peculiar Statutes Ordinances Customes and municipal Laws every State has of its own making which in the regulation of its proper affairs it does prefer before any other Laws or constitutions whatsoever though in reason and convenience they may seem much better Yet humane occurences are so many in number and in circumstances so greatly differing one from the other that no Nation is perfectly supplied with Laws of their own to answer them but that there is still need of some subsidiary Law more universal and comprehensive then its own And from this ground is it that most States have entertained the Imperial Law to supply and assist where their own is defective making their study and science of Law to consist in that but the use and exercise thereof to be restrained and bounded by their own proper Laws which every Nation requires to have first known and chiefly to be observed Wherefore if you travel into their States and shall ascend up into their Courts and places of Judicature both Judges and Advocates will be every where found to be all Civilians and Graduates in that faculty the proceedings in causes there to be most after the form and manner of the Civil Law And when any case comes to be resolved by final sentence if there be any proper or peculiar Law of their own Countrey to determine it judgment passes as that special Law directeth but if that be wanting as commonly it is presently recourse is had to the Civil Law and by that is it both pleaded and judged Which because it shews the transcendent excellency of this Law being incident to no other Law besides and being not throughly enquired into may seem incredible to many men it is therefore a point worthy of a strict examination and fit to be fully cleared and perfectly understood For peradventure it may not pass without a wonder that a Prince or Common-wealth should not be able to manage their rule and government by Laws of their own devising or that any differences should arise amongst their people which they knew not how to decide of themselves but must consult with the oracles of other Nations It eclipses some may think the Majesty of a State to have rules prescrib'd to it by others And since the time that a divivision of Kingdomes was first made and each had their bounds set them no Potentate no not the Emperour himself has pretended to a power to give Law to any but to such as have been his subjects by birth habitation or conquest Neither can Lawes be made to regulate the whole World or to bind all people sayes Suarez m Lib. 3. de legib ca. 4. nu 7. ea 7. nu 9. Besides quae leges Romanis congruebant non omnibus jam congruunt mutata est ratio vivendi status rerum mutatus sayes Ludovicus Vives n De caus corrupt art
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-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-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
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. 6. parag 4. he hath these words Ita jam id est sub annum 1145 receptus fuit Juris Justinianaei usus ut quoties interpretandi jura sive vetera sive nova sive ratio sive analogia desideraretur aut mos aut lex expressior non reperiretur ad jus illud Justinianaeum tum veluti rationis juridicae promptuarium optimum ac ditissimum tum ut quòd legem in nondum definitis ex ratione seu analogia commodè suppleret esset recurrendum Certe ita ferme Rhodiam recepere veteres Romani legem in rebus nauticis ut etiam apud nos gentes vicinas leges recipiuntur Oleronianae cùm interim nec hae nec illae ex authoritate sui quâ primò conditae sunt vim sic obtinuerint Atque ut Academiae demùm non paucae aliae per Europam Occidentalem hac in re quoad studiorum institutionem Bononiensem Ita etiam Regna alia Respublicae imperium Caesarianum quoad usum juris ejusdem aliquem imitatae sunt retentis semper ac ubique moribus aliâs avitis legibusque sibi pro varia regiminis cujusque formula ante conditis novasque condendi tum libertate tum usu Neque ullibi pro simplici jurïs norma in Occidente inde usurpatum est jus illud Caesareum sed cum temperamentis quae jam diximus That is About the year One thousand one hundred fourty five Justinians Law came to be used in the Westerne part of Europe in such cases as either the State had made no special provision at all in them or that there was no custome to resolve them by or where in default of both the case that fell out was to be setled by right and sound reason or by some other cases that in all circumstances did resemble the matter in question or lastly where the local statutes themselves were not so clear but that they stood in need of interpretation and were so doubtfully penn'd that solid reason and a deep judgment was to be made use of to explain them In all which cases recourse was had to the Law of Justinian as to the best and richest Treasury of legal reason and equitable knowledge and which could best supply the want of a peculiar Law either with concludent reason or with parallelling the case in question with other express cases of the Law as did exactly suit therewith Much after the same sort were the Rhodian Laws embraced by the ancient Romans to regulate such matters as fell out at Sea as the Laws of Oleron have been in England and elsewhere when as notwithstanding neither the one nor the other have had such a binding power in them as they had when and where they were first ordained And as many Universities at last were guided by that of Bononia where learning after it had layen a long time neglected was first revived in setting up the teaching and reading of all kind of literature so did also other Kingdomes and Common-wealths in some measure make use of the Civil Law as the Empire did reserving to themselves such old Laws and Customes as they had proper to their several formes and wayes of government and the freedome of making new which they practised as oft as they had occasion Neither saith he has that Imperial Law been at any time since observed in the Western Countreys for a positive commanding Law but ever under the rules and limits before spoken of The same Mr Selden also in his Mare Clausum c Lib. 1. ca. 24. although he will have the Europaean Nations to practise divers things very opposite to the Civil Law as that there are no Slaves now or right of personal Postliminiage as were by the Civil Law and that goods cast away at sea do by the customes and ordinances of many Countreys accrue to the Princes themselves which by the course of the Civil Law were restored back to the owners or if they claimed not went to the first occupant yet he commends the Princes of Europe for establishing the use of the Civil Law in their Academies and in their Tribunals so far as their own peculiar statutes were not contrary thereunto I cannot also omit what Mr Selden writes in his Review upon his History of Tythes d Ca. 7. Where though he vehemently declaimes against the gross ignorance of those that do not stick to publish here in England commonly that all other States are governed onely by the Civil Law and would have such to understand the difference betwixt the use of Laws in study or argument and the governing authority of them yet he acknowledgeth that in the Empire and a good part of Itaely through the power of Emperours and Popes the authority of the Civil Law doth still continue and that in Poriugal the Roman Civil Law is authorized by an Ordinance of State in cases which are not literally comprehended in the customes or constitutions of the Kingdome And as for other Christian States which acknowledge no superiour or any subjection to the Empire as France Spain Denmark Poland the City of Venice and what also in Germany hath made it self free from the Empire though as it is Law he will not have it to binde or rule with them yet he saith in all of them the reason of it brought into method is used and applied commonly to argument when any of their customes or statutes come in question because the practisers studied it in the Universities and had thence their degrees given them And so the old Imperial Civil Law valet pro ratione non pro inducto jure pro ratione onely quantum Reges Dynastae Respublicae intra potestatis suae fines valere patiuntur that is it is of force as Reason not as an introduced Law and no farther as reason then as Kings Rulers and Common-wealths will have it to prevaile within their severall Territories And yet the same Mr Selden also saith within very few lines after that doubtless custome hath made some parts of the Imperials to be received for Law in all places where they have been studied And albeit he be very vehement in asserting that justice is administred in every State by its own peculiar Laws yet he admits also that the interpretation of those Laws in most places save England and Ireland hath of late time been much directed by the reason of the Imperials and onely by the reason of them and not by their authority and that also in case where they are
not opposite at all to the special Law of the place but seem to agree with the Law of Nations or common reason And he grants moreover that ever since Frederick Barbarossa's time which is near 500 years ago the Civil Law has grown into a common profession in this Westerne World 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 FRom what has been cited out of Mr Selden it does appear that there is as much granted by Mr Selden to the Civil Law as ever was challenged by any Civilian or ever ascribed to it by any or that any can wish to be granted to that profession in any Nation He in effect acknowledgeth that when the use thereof came to be renewed in Europe with other learning it was found to be so rich a Treasury of reason judgment and true natural equity and so useful for all matters that respected Civil society and government that by the knowledge and direction of the Civil Law and the rules and principles thereof they knew how to supply with resolution such cases as their National Laws had not made any provision at all in or if they had but were dark or intricate this would help to explain and illustrate them which neither common reason nor any other humane learning would enable them to do The Universities have therefore since made it their common study and commonly given degrees in it and have sent forth the professours thereof into all Tribunals to be the minsters of right and justice there till now at last it is grown to be a common profession throughout Europe And though the original authority which it had in the Roman State is quite worn out no State being now subject to the Roman Sovereignty yet Mr Selden does admit it to be entertained for a binding Law by ordinance in some places that stamp that authority upon it which of it self it hath not in others usually observed as a Law by custome and practise but where it passes not for Law neither way there the reason and wisdome thereof prevailes and every man suffers himself to be convinced thereby non vi necessitatis sed vi rationis not forcing the will as a Law does but as by reason powerfully working upon and at last controuling the understanding Thus far goes Mr Selden himself and by no Civilian has a greater latitude then this been ever given to the Civil Law For what King James spake to his Parliament in the year 1609 touching this matter That there was no Kingdome in the World not onely Scotland but not France nor Spain nor any other Kingdome governed meerly by the Civil Law but every one of them hath their own Municipal Laws agreeable to their customes as this Kingdome hath the common-Common-Law we all unanimously own to be true And what he told them of Scotland in particular in the year 1607. may be as well and as truly spoken of all the States in Europe If a man saith he plead there that the Law of the Nation is otherwise it is a bar to the Civil and a good Chancellour or President will oftentimes repel and put to silence an argument that the Lawyers bring out of the Civil Law where they have a clear solution in their own Law So as saith he the Civil Law in Scotland is admitted in no other cases but to supply such cases wherein the Municipal Law is defective This is generally reported by others never questioned by our selves For we are of opinion there is no people in the World governed singly by any one kind of Law whatsoever nor indeed can be much less can any State be totally governed by the Roman Law but that there must needs be a superadded and a peculiar Law especially as to government suiting with the climate it self the nature and manners of the people the fashion and form of publick actions divers accidents of the time and sundry other occurrences Nay we often see it fall out that some certain Laws that are specially made for a people and at their first ordaining are found to be most excellent and very wholesome Laws yet in process of time through alteration of things and the very persons themselves for which they were originally made it is as great wisdome and as necessary to change them and quite take them away as it was at first to devise them It is no wonder therefore that divers parts of the Civil Law that were accommodated to the nature of the Roman people onely and the usages then in being should prove incongruous to the men and to the affaires of this present world which is of a clean different face and nature For instance A Roman subject was not such a supreme moderator amongst his Children nor such a free disposer of his own estate as that he could make his Will thereof as he pleased preferring one childe and excluding another or parting it too unequally amongst them or gratifying some stranger without remembring any of them If therefore a childe were quite left out of his fathers Will or were especially disinherited but without any cause mentioned or upon such a cause as the Law did not allow of or if upon a legal cause yet not such as was true in fact the Will was void and null e Wesemb parat Dig. De liber posthum The just portion or share that every child might expect from his father if he made a Will and which he could not give from him without lawful cause was if there were but four children in all or under an equal share in the third part of his whole substance both Land and goods for at Civil Law they both came under one reckoning and went one and the same way without any difference but if there were more then four children then a full half of the whole estate was equally shared amongst them all f Novell De trient semiss parag haec nos If less was given to any child then this just proportion or if it were clogg'd with any condition or time of payment whereby it could not come presently and freely to him the Will was not absolutely void g L. omni modo Co. de inoffic testam but a complaint might be brought to restore him to his just and equal share and to have it presently and absolutely without condition incumbrance or day for payment given h L. Quoniam in prioribus Co. De inoffic testam But in those Nations and Countreys where the subjects are such free and absolute propietaries of all the estate they have that they can dispose of the same how they will even from their own children and to them in what inequality they will these tender and indulgent dictates of the Civil Law are useless and unsuitable Those Titles then and constitutions of the Civil Law that treat on that subject Dig. Co. De
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
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 frequently happen and intermix with the affaires of men yet to supply them with a direct peculiar Law or any other express and determinate rule to settle them is an enterprize that was never undertaken by the wisest Law-givers that have been s Legislator non potest omnia declarare quia res in quibus versatur sunt propemodùm infinitae quia in hac vita mortali nihil est perfectum propter ingenii imbecillitatem non possumus cunctae rimari Mantie de tacit ambig convent lib. 1. Tit. 15. nu 19. nor can possibly be effected by any society of men whatsoever For it cannot be understood how such things can be the subject of any established Law or rule that cannot be foreseen neither what nor when nor how they will come to pass Hae varietates infinitae nullis legibus nullis tabulis nullis Pandectis nulla librorum quantumvis immensa mole ac multitudine capiuntur sayes Bodinus t De rep lib. 6. ca. 6. These infinite varieties can in no Laws no Tables no Pandects no Books be they never so many or so voluminous be all of them contained or comprehended And again u Ibidem Non magis legibus singula contineri possunt quà m infinitum quiddam immensum ab eo quod finibus exiguis ac veluti cancellis angustissimis conclusum est sayes the same Bodinus No easier is it to collect all the several cases into one book of Laws then to comprehend that which is in greatness infinite in that which lies in a most narrow compass and is as it were in straitest bounds shut up And yet since there is a necessity of setling such various and so unlike contingencies some rational way or rule must be found out whereby to compose and settle them lest they should be made subject to meer will and pleasure or in default of better means men interested therein should be left to right themselves by forcible and violent wayes It is no less evident and manifest that whilest we have to deal with forreign States as ordinarily we do in the way of trade and commerce and too frequently in the way of War too questions and controversies without number do arise some whereof do concern reflect upon the States themselves as being of publick concernment others be of a more private nature and do concern the interest of some subjects onely But when such controversies of either kind do happen is there any Municipal Law capable to decide them should we not as much disdain to be judg'd by the Law of France or Spain when we have to do with them as they would to be over-ruled by ours when they have to do with us Nay should we not abandon the society of such a Nation that should tie us to their own Laws in matters that are transacted and done out of their proper Territorie as happily upon the open Sea or in the Territory of another Prince and people Of what force or power can a Law be to those who are not subject to the authority of those that make it w Ubi cessat jurisdictio statuemium statuti dispositio non obtinet l. fin Dig. de jutisd omn. Iudic. l. 1. Co. De susp fut And yet when we fall into their hands and controversies are moved against us in their Tribunals we must inevitably stand to and abide their justice and the like they owe to ours But then right must be done by such rules and principles as both sides may be fully satisfied in the equity of them Here therefore does appear the true use of the Civil Law and the ground whereupon all Nations have admitted it into their Courts and acts of justice For although it cannot be said that there is no case which is not contained in the Roman Law Neque leges neque senatusconsulta ita scribi possunt ut omnes casus qui quandoque inciderint comprehendantur sed sufficit ea quae plerunque accidunt contineri sayes the Civil Law it self x L. 10. Dig. De legib Neither Laws nor results of Council can be so sufficiently framed as to provide for all cases that shall happen hereafter but it may suffice if such cases be provided for as in contingency are most familiar and common yet such is the copiousness of that Law beyond any that has yet been and such a wonderful enlargement has been made thereof by the professours of it in all ages ever since as cases and accidents of all sorts and natures and in all Countreys have happened from time to time from study argument and the several resolutions of forreign Courts applied thereunto and all upon the reason and equity of that Law which was written by the Romans that now it may be justly thought no case can fall out or accident arise which the learning of that profession thus polished and perfected either in express termes or by parity of reason will not determine Wherefore it is upon just reason and likewise upon necessity too that so many Nations have recourse to the wisdome and fulness of that Law thus amplified as oft as their own particular constitutions fail them And although there are a sort of men in the world who indeed have some good natural abilities in them as a ready apprehension a quick wit a holding memory and a smooth elocution but were never brought up either in Law or any learning yet they do much presume upon that ordinary and common understanding which they have that they think or at least they would have the World believe so whereby they may be thought worthy of the best places of Judicature that they can by the strength of their poor illiterate reason resolve all questions and doubts of Law whatsoever whether they arise at Land or at Sea be they of publick concernment or of private entrenching upon our own Law or touching upon the Law of Nations be the case between Prince and people subject and stranger one State and another clear in Law or ambiguous setled by express constitution or left undecided yet their capacity as they would have it conceived without any such help as the Civil Law does suffice for all And yet when these presumptuous and high conceited men do sit to judge and administer right on such matters they quickly find what they would not before believe or at least not have believed by others that their understanding is too narrow to comprehend such difficult things and their insufficiency to be too great
dangers they run through both personal and real they deserve to have the highest immunities conferred on them But let them keep within their own sphear and not aspire to such a function which neither their breeding capacity or parts does enable them unto nor their employment gives them leisure to discharge d Robert Rer. judicat lib. 2. ca. 16. And therefore upon a solemn debate whether Merchants should be joyned to Civilians to try such matters it was denied and judg'd against in France in the year 1584. Besides that it should be thought that men whose knowledge of the Law and skill to do right and justice is no greater then bare nature and their illiterate education has affoorded them should be able to do it quicker and at less charge to those that seek it then those that have made it their whole study and employment is to me an imagination strange and beyond belief for unquestionably the skilful and expert Judge that by his study and practise is accustomed to such business as he does best understand it so he must needs soonest dispatch it also Because custome and knowledge hath made all things of that nature obvious and easie to him and such a judge will not allow any thing to be spoken impertinently and beside the matter in question and so a multitude of business goes off quickest under him and both delay and much charge is avoided But when they come to judge thereof who never meditated or dealt in such things it must needs be that they must run into many impertinent questions and that they must toyle and perplex themselves to understand the true point in issue meeting every where with knots and difficulties and scarce any thing that is easie clear to them wherby they cannot without long and frequent debates and much time spent resolve any ease in question And though it be rightly decided in the end which it is twenty to one if it be and is an act of chance rather then judgment yet in a multitude of other business before any comes to be judg'd the attendance I am sure is most tedious and the charge intollerable so that to put the Maritime and forreign affairs to be judg'd by Merchants is to augment delay and charge rather then to lessen either In like manner those that study and profess onely the Law of their own Countrey which as I said before is commonly but of narrow extent and serves but for a few particular occasions onely may be as justly deemed incapable to judge and sit upon triall of such matters though they do concern the dispensing of Law and justice too wherein the Municipal Law is silent and has made no provision at all or peradventure is not capable to make any determination in them as when they fall out upon the main and open Sea or in a forreign State or are controversies arising between two several Nations or their subjects to which no Municipal Law can be applied In brief where the Laws stand distinct and the professions thereof distinct also the exercise of them ought not to be confounded by the ones thrusting into the others function and calling And therefore much less reason have they to prohibit the Civilians who have the knowledge the triall of those cases and assume it to themselves who have it not Hereupon therefore we say it is that though every Nation has Laws and Statutes of their own proper for their affairs and people and those within their several confines so far as they do prescribe have the preeminence above any other Law or reason in the world as has been said before Yet there is no forreign Nation in the World that has a distinct study and profession of the Municipal Law of the Nation apart and divided from the Roman Civil Law neither are there any where else students and professours of any Municipal Law distinctly so called and dignified as there are in England But the study and profession of Law that is to be found in the other parts of the World and is serviceable for the government of the Civil State is the study and profession of the Roman Civil Law onely All which and whatsoever else we shall say hereafter to the same purpose we would have understood as humble proposals onely to be considered of in order to a future settlement which we hope and long for But if the Authority of this Nation who best can judge what is fittest for the people and what suits best with the present Government shall in the end commit and dispose of those Trials which formerly did belong to the profession of the Civil Law into the hands of others that do not partake of that excellent knowledge it does behove all persons to sit down satisfied therewith and to submit unto it without any murmuring or disputing for I do greatly approve of that golden saying of the Civil Law e Lâ— 3. Co. De grim sacrileg Disputare de principali judicio non oportet Sacrilegii enim instar est dubitare an is dignus sit quem Imperator elegerit No man ought to question that which the supreme Magistrate has once decided For it is a kind of sacriledg to doubt of that persons merit whom the highest magistrate by his immediate election has thought fit to dignifie CHAP. VIII The reasons are strong and weighty upon which so many forreign States do direct and order the business of their Tribunals most by the praescript reason and equity of the Civil Law IT is from the Roman Civil Law that the students in forreign Nations do derive their first principles of Law and justice and in this are all publick Lectures read and degrees taken and not in any Municipal Law Yet it is true that before they practise or sit in places of Judicature they read and throughly inform themselves in the Laws of their own Countrey by which where there is positive and express constitution in the point their pleadings and judgments must be directed wholly But in cases where there is none as the cases be but few where there is in comparison of those where there is not or where that which is is either in sense ambiguous or in words obscure and must be interpreted or where no Municipal Law can be of any force or use at all as in the cases above specified there they generally make the Civil Law or the reason thereof their onely rule and guide to administer right and justice by both to their own people and to forreigners also To this they are led by divers necessary and most important reasons First for them to do so is but answerable to their education as they are all Civilians and to those principles which their learning hath ingrafted in them For since they have been bred and disciplined under it it is no wonder if their judgments and results be steered by it it being natural that waters should have the true relish of the fountain from whence they
but themselves such a Nation must make much of themselves and be contented to subsist of what they have of their own for no other Prince or people will adventure to deal or correspond with them Eighthly those that are the composers of this Law in the ordaining thereof had not as is usuall in the making of other Laws the advantages of State in their eye nor the honour and greatness of those that had the government nor any meerly politick considerations whatsoever much lesse did they look at the particular benefit of any private men But as in publick matters salus populi was suprema lex so in private quod aequum bonumque fuit was that which made up the Law with them the dispensation of true right and pure equity was thought the most effectuall means to preserve the whole And hence it is that the sincere equity of the Roman Civil Law has been owned and the wisdome of it greatly admired by those to whom the exigencies of the Roman State and the interest of the Rulers of it could not be known Ninthly this Law is so well tempered and so indifferently composed that it may be accommodated to any kind or form of government so that be the Supreme power in one or be it in few or be it in the whole people it is equally useful for them all for Rome came under all these severall formes of government and some part of the Civil Law was made under each of them Lastly Triall that is the true Touchstone of Laws as of all things else whatsoever has exalted it above all other Laws of Man First in the general use of it every where about the World Secondly in the continuance of it to this present time after the State and Government of Rome has long ago ceased to be and against all stormes and tempests that have come Thirdly in that all States and Common-wealths have exceedingly flourished that have made use thereof And yet we are not such vain exalters of our own profession as to think or boast that the Civil Law has the force or property of a Law within it so as to prescribe to or bind forreign Nations h Leges non allegantur in curiâ—s Principum aut regum pro authoritate sed prorationâ— sui Jas in l. 19. co de Collat. nu 10. Non quia sunt leges Imperatorum sed quia sum natuâ—â—les bonae non quia lex hâ—â— dicat sed quia Retio sic vult Baâ—d in l. 13. co Desent interloc onâ—â— judic But we rather say by any authority of its own it commands and necessitates no where and yet as reason must alwayes prevaile with men that are rational it informes illuminates and perswades every where We say this further that though in matters of publick government the Municipal Law bears sway and is practised altogether in every Nation for those must be managed by such prudent wayes and means as the supreme Governours from time to time shall think most necessary without being tied up to any certain rules even of their own much less to any of the Roman Empire yet in private controversial things arising between man and man some special matters of more publick and general concernment excepted the Civil Law is much more practised and more frequently used then the Municipal Because in respect of the great variety and multitude of such cases the Municipal Law can declare but little that is certain in them So that though we cannot say that forreign States are governed by the Civil Law yet the suits and differences their subjects have one with another are for the most part judg'd and ended by it But the admittance of the Civil Law in these cases how general soever they be is voluntary and free without either necessity or constraint And we do so little think that the want of a compulsive and binding power does in any part obscure the lustre of it as in our judgments that very consideration does commend it much more and makes the merit of it much more conspicuous and splendid for to be awed by an imposed Law argues the superiority of the power that imposes it and the servility and subjection of the people that are under it but no worth and excellency in the Law it selfe for peradventure if they were left to their full freedome they would chuse to live under some more natural and more reasonable Law But when a Prince and people shall of their own accord without direction or command from any other freely embrace a Law and desire to be tried and judg'd thereby as forreign States do by the Civil Law it is an evident token that this free assuming of such a Law proceeds from some known singular vertue and rare goodness that is in it for else they would not being at liberty be so unanimously guided and directed by the same CHAP. IX The admittance and sway of the Civil Law in forreign parts is yet further verified by the testimonies of Sir Tho. Smith and Dr Hakewill the one a Statesman the other a famous learned Divine of our own and by some other remarkable institutions within this Nation I Have before told you what a great and renowned King of this Nation and five great Sages of the National Law have said concerning the fame and practise of the Civil Law in forreign Nations I connot pass by what Sir Tho. Smith a most famous Scholar and States-man of this Nation and one who in Queen Elizabeths time went Embassadour to the King of France and so had the opportunity to know more of this matter then those that sit at home has written obiter to the very same purpose in his book De Republica Anglorum Wherein after he has delineated and set forth the true state of the policy and forme of government within this Common-wealth and wherein the Laws thereof do greatly differ from that which other States do observe and follow in his third book ca. 11. he closes in this manner Administrationis Politiae Anglicanae formam quasi in tabula breviter vobis ad intuendum proposui Quid suum habeat quidque ab aliis rebuspublicis Gallorum Italorum Hispanorum Germanorum diversum quae civilibus legibus Romanorum in Pandectas Codicem à Justiniano redactis reguntur enarravi The form of Policy and government of England saith he I have as it were in a Map briefly set down before you to be seen what it has proper to it self and what differing from other Common-wealths to wit of France Italy Spain Germany which saith he are swayed by those Civil Laws of the Romans that Justinian did put into the Digests and the Code I have likewise shewed you The testimony also of Dr Hakewill a great Divine of this Countrey also is as full to the same matter for in his learnned Apologie of the power and providence of God i Lib. 3. ca. 7. sect 3. he does not onely rank the Civil Law next to
the Law of God but also avows the professours thereof in some forreign parts to be generally better scholars then their Divines and the Lawyers of this last age to be much more able in their learning and skill then the Lawyers of former ages have been Of the which he will have the reason to be the great sway interest and employment which they have had in the Judicial Courts of Christendome that has given them such encouragement Next Gods Laws saith he those of the Empire seem to challenge their place howbeit with us having neither that reward nor employment as they deserve they have lost both their rank and dignity but in forreign parts where they are cherished and honoured they marvellously flourish insomuch as in some transmarine Kingdomes their Lawyers are held and for the most part are undoubtedly more sufficient Scholars then their Divines and within this last Centenary much more sufficient then the writers and professours of the same faculty in many precedent ages as well in that part which is professed in Schools as the practick expressed in judgments and pleadings Now for the latter part which is the practick saith he it may easily be evidenced to any who will be pleased to look into it that by the observations experience paines and learning of the Lawyers of those latter ages it is grown to much more exactness and perfection then former ages had Which appears by the judgments decisions arrests and pleadings of the highest Courts of the greatest part of the Christian Nations which are extant in great numbers as the Decisions of the several Rotes of Italy at Rome at Naples at Florence at Genoa at Bononia at Mantua and Perusium and the rest the judgments of the Imperial Chamber at Spire which is the last resort of the German Nation and the arrests of the several Courts of Parliament in France as Paris Aiz Burdeaux Grenoble and the rest To which may be added the pleadings of Monsieur Servine the French Kings Advocate and others of that nature which are all published and extant partly in Latin and partly in their own Languages with that variety and learning as much exceeds the former ages But to pass from what is observed by our own Countrey-men in this particular is not there an ancient institution of England that does clearly demonstrate the same thing for if we were not sure that the Civil Law did pass for currant and were generally embraced in forreign parts why should we alwayes to this very day observe to try and decide all differences that arise between our own Countrey-men and Strangers either upon or beyond the Sea in the Court of Admiralty where the proceedings are onely after the forme of the Civil Law And were it not to please forreigners in the Law they like and allow of we might when we had them here strictly hold them to our own Laws But since we must trade and traffick with them it were no indifferency to call them from the trial of that Law which they in some part know and is the Law of their Countrey as themselves make it to the trial of a Law which they know in no part and is meer forreign unto them Likewise if the Treaties that we have had with forreign Princes were surveyed it would be found that they run in the language and are transacted by the skill and knowledge of the same Law It is evident therefore that it is used and accepted of every where upon and beyond the seas since that where we deal with strangers most and have most variance with them there it is most used even amongst our selves And to the same ground and reason does Mr Selden in his discourse upon Fleta k Ca. 8. parag â— impute it that the practise of the Civil Law has been continued alwayes in the Marshals Court here in England where divers causes might arise that might concern strangers as also in the Judiciall Courts in both Universities where strangers for study sake do frequently come to settle though for my part I cannot think that the Universities use it for any other reason then for the pure natural equity and sound reason that is in it above all the Laws in the World besides nor for any other end then that young men trained up and made expert in that profession when they come abroad might be more ready in all matters of negotiation and commerce that the Prince or State should in their dealing with forreign Nations have occasion to use them in when ever they were call'd to any such imployment to which the Laws of this Land serve nothing at all It is needless in so clear a matter to offer any further proof to convince our Countrey-men that all their neighbours beyond the Seas that are nevertheless wise rich and potent do suffer themselves to be judg'd and directed by the Civil Law and the professours of it I shall therefore as touching this particular add but two things which in my judgment are very well worth the observation The first is that Justinians Code which is a collection of the Emperours Laws onely from the dayes of Adrian unto the age of Justinian himself is in use even amongst the Turkes l Stephan Proâ—â—m in Novel â—u 64. In order to which it was as Mr Selden saith in his discourse upon Fleta m Ca. 5 parag 5. that Mahomet the second but the first Emperour of the Turkes so called when he had won Constantinople from the Christians he commanded Maximus the Patriarch with other books to translate also into Arabick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the Imperial Codes which was done in futurum ut videtur Mahumedici imperii usum sayes Mr Selden that is to be useful for the Turkish Empire The second is that even in the territory of the Church where the patrimony and the jurisdiction of the Popes lieth this Law has in some cases an interest of guidance in the Tribunals there too And yet if the precious worth that is in it did not captivate them there are not forcible and weighty reasons wanting to make them abhor and decline the same For First some of the Christian Roman Emperours as Constantine Theodosius Martian and Justinian did ordaine divers Laws for the ordering of Church-matters and Church-men which since the Popes look'd upon as an usurpation and an incroachment upon their spiritual jurisdiction Temporal Princes being the disposers of temporal things onely as they suppose and not to meddle with spiritual it might well beget in them an animosity and dislike against the Law it self Secondly the Church has a large Law of their own the Canon Law and so large that it may be thought sufficient to set a rule to all that Churches affairs whatsoever and need not borrow help from any other Law Thirdly there has alwayes been as it were an emulous contention which of these two Laws should be the most potent and spread furthest in the Christian World Fourthly the Popes in
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
and government and is not barbarous has a certain peculiar Civil Law under which it lives and is governed yet out of a general belief that no other humane Law whatsoever is to be compared with the Roman Law does it still as anciently it did carry away the name and title of The Civil Law from them all as being the exactest and perfectest of all other Laws in the World besides 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 THe Roman Civil Law has not the praeeminence of other Laws in title and denomination onely but it is thought also that in the books thereof there are laid up such treasures of humane Wisdome Policy Justice Equity and natural Reason that the art of doing equal justice and the doctrine of true and uncorrupted right is taught by them onely Jus said Celsus t Lib. 1 Dig. Dt just ju est ars aequi boni Law is an art informing what is just and good And Jurisprudentia said the Emperour u Parag. 1. Inst cod est rerum divinarum atque humanarum notitia justi atque injusti scientia The science of the Law teaches what is the right both in Holy and Worldly things and what is just and unjust both speaking of the Roman Law so was it accounted then and no otherwise is it accounted now too For Whereas the learned of the world do reckon upon three supreme Arts and Sciences Divinity Law and Physick which do so mainly support and hold up the whole frame of Man that without them this goodly linke of things here below must needs dissolve and fall away to nothing by the Art of Law it is far from their meaning to comprehend the Municipal Law of any Nation which is fitted for the climate of one people onely and serves for the exigencies and occasions of the State and varies as times and occasions and the dispositions of the men do vary which commands rather then teaches which has an eye more to what is profitable to the publick then what is just and equitable and which deals more in the great advantages of State then in setling private interests or composing differences between man and man for this is the true state of the locall constitutions of the several and respective Nations and Kingdomes of the World each of them being far short of deciding those many doubts and questions that must needs happen in great variety between their subjects whilest they trade and deal together But they understand some more Universal Law that is commonly embraced and allowed of by the best and most potent Nations that is full of pure equity and true reason and being grounded upon dictates of nature and common reason is unchangeable whose method is to teach and instruct by certain rules and principles orderly and handsomly digested as well as to command and order and which amongst the frequent and various dealings of men does leave few cases that can happen undecided And it is evident that by this Art of Law they intend no other but the Roman Civil Law for although the Laws have been a making almost ever since Rome was first built and were ordained as questions did arise from time to time and under several forms of government Rome being sometimes under the rule of one sometimes of more and sometimes of the whole people and grew at last to an infinite multitude and lay in a confused and indigested heap void of all order or method Yet at last Justinian when he came to the Empire did set upon that opus desperatum as he calls it in his Proaeme to the Institutes that desperate enterprize of disposing them into that admirable order that now we see them in and indeed was the first that laid the foundation for the building up of the Art and Science of Law By his means it was that after the best and most usefull Laws were selected and chosen out of a vast and tumultuous heap they were distributed into Titles and the Titles into Books every Title contains those Laws that are proper and pertinent to that principal subject whereof that Title treateth sometimes by definition opening the true state and nature of it sometimes if it be various dividing it into its several kinds and branches also subjoyning a resolution of the several cases and questions that come under it rather by the still voice of right reason and as all men by their natural instinct and practical experience would agree to determine them then by sovereign command or imperial will After this method is that principal part of the Law the Digests otherwise called the Pandects composed which Duarenus cals the Magazine and Store-house of all equity justice and learning and the artificial framing thereof Cuiacius x Parat Dig. Mandat does so much admire that he judges them to be fools and illiterate and not to understand neither what Art is nor what the principles of Law are nor how well the Pandects are made that should require any other Art then what is to be found in them Tully sayes Alciat had long and sollicitous thoughts de jure Civili in artem redigendo of making an Art of the Civil Law but Justinian in the Digests hath done that work But to make this science of the Law yet perfecter Justinian hath also added his book of Institutions for no other end but as himself testifies ut sint totius legitimae scientiae prima elementa the introduction to the whole Law they being indeed the summe and substance of it and he directs it cupidae legum juventuti to those that shall desire to enter upon that study intending it as a help to the younger students onely whereby they might be enabled after the reading thereof the better to undertake the more difficult and voluminous books of the Law for he considering that the other volumes of the Law would prove too hard and tedious for young beginners and so it might come to pass that the whole study of the Law might be quite laid aside and utterly perish for want of some to study the same he commanded this little book of Institutions to be made whereby young men might be invited partly with the briefness and partly with the easiness thereof to the study and profession of it Here then is a great body of Law orderly and methodically disposed and a book of praeliminary Institutions also to make the entrance into it easier and more beneficial But there are two Volumes more of this Law also the one collected by Justinian as the Digests were and that 's the Code the other ordained by him as the Institutions were and that 's the Authenticks otherwise called the Novell Constitutions for the first is but a bare collection of such decisions as the Emperours that had sate in the Roman Empire even
to Justinians time had made to the questions that had been propounded to them sometimes by Judges and sometimes by private persons as in contingency they fell and are ranked in the same order and method as the Digests are In the Authenticks there is not that order observed in the disposition of Laws as is either in the Digests or the Code but as occasion was offered of any doubt wherein the Princes resolution was necessary to every thing so it is set down without any other method or form And they were call'd the Novels because they were new Laws compared to the Laws of the Digests Institutions or the Code and sometimes they alter and correct the Laws of the other three Thus far went Justinian himself in his design of a general survey and disposure of the Roman Laws sometimes ordaining Laws of his own and sometimes gathering together the Laws of others till he had made an exact and absolute composition Which enterprise that renowned scholar and Statesman of our Countrey Sir Francis Bacon does so much commend and admire in his Epistle to Queen Elizà beth set before his book of Maxims of Law that when he understood that she had the like purpose in her breast to enter into a general amendment of the state of her Laws and to reduce them to more brevity and certainty he saith it struck him with great admiration when he heard it and acknowledges it to be one of the most chosen works and of highest merit and beneficence towards the subject that ever entred into the mind of any King but addeth that there be rare presidents of it in government as it cometh to pass in things so excellent there being no president full in view but that of Justinian as he confesseth Whose work is the more to be admired because the use thereof is not local nor restrained to the state and policy of one Nation onely as hers would have been but may serve for the use and benefit of any state or people whatsoever and is subservient to all accidents and occasions that can happen in common intercourse and inded has for its object such things as commonly arise every where throughout the World and have no Municipal or customary Law to determine them But if Justinian should be thought to have failed in any thing of bringing this Art to a full perfection yet what the learned of Christendome from his time downward to this present has done towards the perfecting thereof will make it up for the infinite number of writers of all sorts of all Nations and in all ages that have wrote hereupon are prodigious to behold and wonderful to consider What Glosses Notes Lectures Repetitions Commentaries Paratitles Analyses Intellects are there upon the very Laws themselves There is hardly any Text of Law that is not copiously written on either in stating the true reading of it or in clearing it from obscurity or in enlarging upon the matter of it Then as to the general subjects of the Law and the particular cases and questions that fall under them both speculative and practicall the Tractats Discourses Counsels Questions Reports common Opinions Controversies Resolutions Practices Observations and Singulars are without number Even this latter age of ours besides all that which foregoing antiquity has produced has brought forth every where in all Countreys of renown so many famous writers in this kind that every Nation has seemed to be at an emulous contention each with other which should most excel in such men For France are reckoned Cuiacius Brissonius Molinaus Antonie Faber Peter Faber Rebuffus Bodinus Tholosanus Gothofred Choppinus Bellonus Papo Charondas Hottoman all of high account in that faculty For Spain there are famous to this day Covarruvias Gemezius Vasquius Alvarez Gregorie Lopez Bernardus Diaz Villagut Pinellus Franciscus Salgado de Somoza Sarmientus Rodericus Suarez Johannes Lupus For Italy Gabrìel Romanus Stiaticus Asinius Cephalus Gigas Gratus Palaeotus Peregrinus Bossius Balbus Puteus Farinacius Mascard Zunt Surdus Vincentius de Franchis Mozzius Sfortia Oddos From Germany came forth not without much estimation and honour Gail Wesenbeck Minsinger Schneidwine Peckius Hopperus Raevardus Vulteius Thomingius Althusius Sichardus Freigius Pacius Forsterus Melchier Kling Every one of these has left such writings behind him in the Civil Law as will makes their memories immortal Neither can it be any wonder that the Civil Law it self and the books thereof are grown so voluminous and almost infinite Because indeed that Science does comprehend that vast and great variety of affairs and worldly business that the large Nation of the Romans dealt in during the long continuance of that great and large Empire And since have been added unto it and squared as it were by the rule thereof and applied unto it the affairs of many Nations which must in all changes and accidents and in each Nation be many various and several from the time of that Empire down to this present Which being severally writ upon by several fancies and in several wayes and methods must needs produce throughout the World large and copious writings in this faculty as it has in all other Arts and Sciences besides But the benefit that the world reaps thereby lies in this that there neither is or can be any contract made or any human affair transacted either Domestick Civil or Military either between governours and governed or between the people themselves one with another or between Nation and Nation either upon sea or upon land but by the help of that study and the writings thereof there may be found most rational rules and directions sometimes to discern the true nature of the thing it self sometimes to discern its kinds sometimes to resolve the doubts and questions that fall under it sometimes to justifie it as wholly good and lawful and sometimes to condemn it as altogether unjust and evil And if the action be not uniform but various and may be in some cases good and in others evil it will distinguish upon the several cases that dealers may walk securely and safely if they will guide their actions by the prescript of that Law where the Laws and customes of their own Countrey doe not direct them otherwise No part of this pains has been taken or honour done by the learned of forreign States to the Municipal Law of any Nation besides the Roman for although every State may wonderfully affect and be delighted with their own Laws and so it may come to pass that they may be greatly extoll'd and set up and sometimes with much industry and great benefit to the subjects interpreted explained and writ upon by the writings of their own Countrey-men yet are they of so little esteem and account with forreigners that they almost disdain to read them But where any have imployed their pens in writing upon a Law of another Nation no one example can be given but in the Civil Law onely which has busied and set on work the learned of the whole
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
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
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
of the Civil Law fol. 134 Nations in their dealing with one another must have some common Law to guide them fol. 59. 146. 155 National differences not to be debated but by the Law of Nations and the reason of the Civil Law In the Epist and fol. 65. Natural Laws cannot be repealed fol. 49. 174 O Offences though the same may be punished with more severity in one State then in another fol. 26 P Parents could not give away nor forfeit their whole estate from their children by the Civil Law except in case of Treason fol. 9 Proceedings legal how rationally ordered by the Civil Law fol. 15 President or example no rule to judge by fol. 38. 65 Promises if serious though without consideration are to be performed by Civil Law fol. 87 Pope of Rome did make edicts against the Civil Law thereby to advance the Canon Law the better 124. yet he does make use of the Civil Law fol. 163 Parents were bound to leave a certain part of their estate to their children fol. 9. 141 Penalties added to Laws argue the power but not the justness of them fol. 158 Punishments for the same offence may justly be greater in one place then in anothes fol. 26 R Reason was given to be mans guide in all his actions 2. it is a beame of the divine light 5. the principles thereof all of them not to be discerned by all 21. is sometimes covered with falshood and is much darkened by other natural corruptions 23. not a more deceitful thing then it 24. then most evident when generally allow'd by all 30. not so requisite in publick Laws as in private 33. private politick and that of Nations to be gathered out of the Civil Law fol. 53 Romes greatness and flourishing does demonstrate the excellency of the Laws wherewith it was governed fol. 98 Rome was as it were the City of the whole World fol. 98 Romes greatness to be imputed rather to their Laws then Arms. fol. 99 Romans very greedy of honour in pursuit whereof they did many gallant acts and especially made such good Laws as they did fol. 100 Romes universal rule a special design of God for the good of man which was the cause that Christ was born under that government fol. 102 Romans when they conquered a nation did not disdain to take such Laws from them as they found to be very honest and rational fol. 107 Roman Emperours some favourable to the Civil Law others bitter enemies against it and the professours of it fol. 112 Robbery in the High-way or at Sea or with Burglary punished by death at Civil Law fol. 142 Roman antiquities would have been better known if the old books of the Roman Laws had been preserved fol. 121 Reason vulgar and ordinary not suffient to judge of legal matters fol. 147. 154 Romans through their universal sovereignty dealt in greater variety of business then any Nation fol. 52. 155 Rome came under several formes of government and yee some part of the Civil Law was under all of them fol. 157 Ransome paid for another though without his directions is recoverable from him fol. 91 Roman Laws do onely carry away the name of The Civil Law fol. 166 S Society Civil what the benefits thereof be fol. 56 Succession to intestates goods how regulated by the Civil Law fol. 84 Stoppage is an allowed way of payment at Civil Law fol. 89 Ship or goods when saved by the pains or loss of another the Law will allow salvage or other recompence for it fol. 90 Slavery and servitude out of use amongst Christians fol. 143 Sea matters to be judg'd and tried by Civilians onely fol. 148 T Torture as it is allowed by Civil Law justified fol. 72 These by Civil Law punished by pecuniary satisfaction fol. 142 V Vniversities of England why they practise the Civil Law fol. 161 Vniversities of the World teach no other nor give degrees in any other Law but the Civil Law fol. 152. 153. 172. W Wrecks by the Civil Law restored to the owners and go not to the King fol. 21. ERRATA The Reader is first desired to take notice that the Printer by the absence of the Author and being not acquainted with the quotations of Civil Law has from fol. 4 to fol. 23. in divers places in the Margent erroneously set down the book for the Law printing lib. instead of l. which stands for lege When therefore the Law is quoted out of the Digests or Code within that compass instead of lib. read l. as in fol. 4. in the Margent litt l. for lib. 1. r. l. 1. Fol. 4. in the marg litt n. for Minfinus r. Minsing fol. 19. lin 24. rigorem r. vigorem l. 33. for is not so r. is not to be fol. 20. l. 22. for rules r. rulers fol. 71. in the mangent litt r. for lib. 57. r. l. 57. fol. 75. l. 10. for need not r. l need not fol. 158. l. 20. for they r. it fol. 175. l. 33. for natural r. unnatwal fol. 181. l. 16. for as r. us The End