effectual qualities in Laws that is to contain honesty justice possibility conveniency for the end of Humane Laws is that by the dread of their punishment innocency may be safe in the midst of wicked men There are also certain habilities requisite Certain habilities necessary for Law-makers in those who are Law-makers amongst which the School-men do chiefly esteem these three parts or potential faculties of prudence Ebulia Synesis Providentia The first is the faculty of Counselling and advising aright The second is the habit of judging soundly not so much the Cases of Law already made as the Considerations of Laws to be made The last which is Providence being a fore-sight of future events this hath two parts Circumspection and Caution the one being the consideration of Circumstances lest any thing be defective in the provision of the Law the other searcheth into the Incommodities and Inconveniences whereto such Laws or they for whose safeguard it is made may be exposed The Philosopher requireth to the What the Philosopher requireth in making of Laws making of good Laws Authority Reason general Justice which is honesty and Agreement of the People By the first the Law-maker doth bind by the second he doth know by the third he doth desire to make such Laws as shall be possible and profitable not for himself only or for a few but for all or at the least the greatest number for Suprema Lex Salus Populi The notions and general rules of Nature do teach to shun that which is hurtful but where the Naturalist or Moralist doth not perswade the Politician and Law-maker doth enforce The Moralist doth indeed prescribe general Rules and Precepts what ought to be done But doth not shew so particularly how it should be done The Rules of good and evil prescribed by Nature and set down by the Moralist are by them both enjoyned to be practised by and to our selves but by the Politician and Law-giver those general Rules are applyed and accommodated to the particular Laws of each Nation to be fashioned not only for our selves but for others Therefore it is aptly said Vbi Ethicus desinit ibi incipit Jurisperitus as in Nature Vbi physicus definit incipit medicus Though these positive and politick The necessity and utility of Laws Laws of Men cannot attain to absolute perfection yet that they are of evident utility and urgent necessity I suppose no man doubteth For both nature and necessity the two raisers of Sciences and Invention have as it were conspired to direct and require the use of these Humane Laws because as it is natural unto men to desire and to like that which is others and yet to dislike and abhorr other men from whence come questions controversies quarrels opposition and defence so out of these doth arise an inevitable necessity to lay certain limits which are Laws and Civil Constitutions by which these inordinate desires and designs of men being full of disturbance should be bounded and without which as the appetites and affections of men are restless and of themselves unrestrained so except they were confined and restrained by positive Laws the lawless wills of men would make society uncomfortable and unsafe CHAP. II. The differences betwixt the Laws of Nature of Nations the Civil and Municipal Laws HAving said somewhat of the definition and nature of Laws especially of the Eternal Divine and Natural Law it now followeth that we should descend to discover the differences betwixt the Humane Laws of several sorts These by some are divided into three branches from whence it is supposed that all other particular positive Laws do spring and grow The first is the Law Natural whereof there hath been a little spoken before this is defined to be that which Nature hath taught all living Creatures The second is the Law of Nations which is received amongst all Countries and People The last is the Civil Law which every free Commonwealth ordaineth for it self Caius a Civil Lawyer divideth A division of Laws into two parts these Laws but in two parts that is the Natural and Civil Law for some think that whatsoever Law is Natural the same is also the Law of Nations and so on the other side interchangeably The reason is thus What else is the Law of Nations A question concerning the former division but that which natural Reason hath taught and perswaded all men to be equally good for all So that it is called National or the Law of Nations because all Countries have received it Natural because it had its beginning from natural Reason For the deciding of which doubt The Law of Nature twofold it is to be understood that the Law of Nature is twofold Primary and Secondary the one being that which Nature or rather the God of Nature teacheth all living Creatures the other that which Nature teacheth Men. The first called the instinct of Nature whereby it is common to all living Creatures by the instinct of Nature to procreate and to seek the preservation of their own kind to avoid that which they find to present death and danger to repeal force with force to seek things needful for sustenance and the like This in a general sence is called Jus primaevum or the primary Law of Nature And this doth differ from the Law of Nations which is a Law proper only unto Men and not to other Creatures But the Secondary Law of Nature or of God for both is one and the same containeth and comprehendeth the Precepts of honesty which God and Nature hath infused into Mans heart at his Creation given only unto Mankind and unto him from his beginning as to yield Religious reverence to the Supreme and Divine power to exhibite love and duty towards our Parents and the like This latter part of the Law of Nature doth answer and concurr with some part of the Law of Nations which likewise as the former is twofold that is to The Law of Nations twofold say Primary and Secondary The Primary Law of Nations is that which natural Reason hath insigned all Nations as hath been expressed in the Secondary Law of Nature therefore some have termed the Secondary Law of Nature the antient Law of Nations But there is a Secondary Law of Nations which is no part of the Primary or Secondary Law of Nature this cometh not by nature but by a Judgment gathered out of experience and discourse thereby collecting what is commodious for common society and equally behoofeful to all Nations and this is not ingraffed in nature at first but gotten and gathered by use and necessity which makes thereof a Law as to punish offenders and wrong-doers which is the first head of the Secondary Law of Nature yet not a Rule or Law begotten or bred by Nature But when the perverse nature of Man could not contain it self in temperancy then wrongs offered publick necessity required that they should be punished who would hurt others and trouble the
common peace and society of Men lest the like occasion of wrong doing should grow general and so in the end hurtful to all So by this Secondary Law of Nations grew the division of Goods the distinction of Properties free Commerce betwixt Nations common Contracts and the like By this we see that the Secondary The secondary Law of Nations no part of the Law of Nature Law of Nations is no part of the Law of Nature and differing also from the Primary Law of Nations it self Now let us see next how the Civil Law differeth or is distinguished from these Laws of Nature and of Nations The Civil Law or the appellation The name of the Civil Law taken two wayes thereof is taken in two several significations for either it is in a strict signification accounted particularly and only for the Roman Law first set down by Papirius Papinian Vlpian and others and afterwards collected into the Institutes Pandects or Digests Novels Constitutions and the Feuda by Justinian's commandment or else in a more proper sence it is accepted for the particular Laws which every Kingdom and Commonwealth doth constitute for it self And although Caius with other learned Civilians do confess that the Laws which every City doth make for it self be properly intituled Jus Civile quasi jus proprium ipsius Civitatis yet the Romans having gotten under their subjection the greatest part of the known World gave Laws unto all Nations Conquered by them which by a kind of Excellency they termed Jus nostrum or Jus Civitatis Therefore Justinian after he had caused the Digests to be compiled commanded his Judges that these Laws should be used in all Countries and that his Pretors of the East of Illyria Lybia and other parts should put them in practice Whereby it came to pass that the Roman or Imperial Laws were generally called the Civil Laws and have for the most part in most places been ever since so observed Whereas otherwise in proper sence and signification the particular Laws of each free City and State ought to be called their Civil Laws But both these that is the Roman and Imperial Civil Laws and The Civil and Municipal Laws do not wholly differ from or depend on the Laws of Nature and Nations the particular Civil or Municipal Laws of every City Commonweal or free State do not wholly differ from the Laws of Nature and of Nations nor wholly depend on them in this because the Laws of Nature and of Nations are permanent and perpetual being alwayes the same without any alteration But the other that is to say the Roman Civil Laws have been subject to many The Roman Laws subject to sundry mutations mutations alterations and abrogations So likewise all other Civil and Municipal Laws have been and are according to the variation of Times of States and of sundry circumstances For example in the Roman Laws The Laws of the Kings of Rome whilst the Roman State was under the Government of Kings they made such Laws as they thought fit for that time the present state of the City and their own purposes which were all digested into one Volume by Sextus Papirius as is recorded by Pomponius But the force of these Laws ended with their Reign and as soon as the Commonwealth was transported into a New State at the first they could not frame any certain or constant Laws for the Commons and Gentry opposing each other for The Laws of the Consuls and Commons of Rome twenty years together such Laws as were then made did rather seem to cross and contend one with the other than to concurr in any mutual harmony for the good of the Commonwealth For the Consuls made Laws according to the minds of the Senate and the Tribunes of the people according to their affections untill they agreed to send certain Legates unto Athens and other Cities of Greece famous at that time for good Laws and Government that they might be better pleased with Foreign Laws who envied and held not their own indifferent Which done they drew those Laws brought The Laws of the 12 Tables fetch'd from Greece to Rome from thence into Ten Tables to which they added two more of their own these they called the Twelve Tables being the grounds of the Roman Laws But yet two years after these Laws were brought to Rome and established there the Authority of the Decemviri upon which the force of these Laws did depend ceased and was extinguished by the lust and licentious life of Appius Claudius being one of them And although those Laws of the Twelve Tables continued afterwards as grounds of other Laws yet were they still added to and altered as the Roman State did change For when The Emperors of Rome make and change Laws at their pleasure the Emperors set up their Soveraign and supreme Authority they made such Laws Edicts and Constitutions as were answerable to their own ends the succeeding Emperor often disannulling what his predecessor had ordained And as they abrogated the Laws of others so did they not long uphold their own For who almost was there amongst them that did not change their own Constitutions Besides as the state of the Empire The admixture of divers Laws in the City of Rome grew greater they were forced to alter their Laws with admixture of their Decrees of the Senate Statutes of the Commons Ordinances of the Magistrates As the Pretorian Laws called Jus honorarium which were of great force for the time but of no long continuance for they were founded upon the Authority of the Pretors and did often end with their years Thus the Roman Laws remained in much uncertainty till the Reign of Adrian the Emperor who with consent of the Senate did cause these Laws to be made perpetual whence grew the name of Edictum Adrian's Edictum perpetuum infringed perpetuum But yet in divers succeeding Ages sundry of these Laws were also abrogated and even the Laws compiled in the Pandects and Codes by Justinian's commandment were some of them by him altered and many taken away in a latter Book called the Authenticks All which is alledged to shew the instability change and uncertainty of the Roman Laws The like might be said of the Laws of other Nations which have been found uncertain in their grounds and unstable in their continuance Secondly We may see that there is difference betwixt the Civil Roman Laws and the Municipal Laws of other States For though the Roman Imperial called the Civil Laws do bear much sway in most Countries of Christendom and have place in All Countries have some particular Laws and Ordinances different from the Civil Roman Laws their proceedings of Justice but least of any place within this Kingdom of England yet have all Countries their several Customs Statutes and particular Ordinances discrepant in divers points from the Rules of the Roman Imperial Civil Laws which is no marvel since in the Digests there
is delivered as from Papinian some distinction betwixt the Roman Civil Laws and the Pretorian Laws made in the same City For it is said there that the Civil Laws did consist of the Statutes of the People the Ordinances of the Senate and Decrees of the Princes with the Authority of Wise men But the Pretorian Laws were those which the Pretors did introduce to supply to help or to correct the Civil Law So is there alledged in the same Digests out of Paulus another division of Laws The first is the Law of Nature the second is the Civil Law the first is freed from Injustice the second is deemed profitable to all or the greatest part of the City and there is added Jus The Pretorian Law differing from and correcting the Civil Law honorarium or the Pretorian Law as if it were no part of the Civil Law wherein it is said the Pretor doth give Law though he doth determine unjustly having relation not unto that which the Pretor doth but to that which is convenient for him to do So that it is not to be wondered that the Municipal Laws of every Country do differ from the Civil or Roman Law or that the Civil Roman Law hath not his full force in all Countries or that it is not the only Law that governeth in any Country Because the City of Rome it self did admit some other Law to be administred within the City than that which was called and accounted their own Civil Law or Jus Civile And where there was question made before concerning the Civil Law whether the same were only the Roman Laws or as well other Municipal Laws Some Civilians do distinguish A division of the Civil Law them into two parts the Roman Laws they call Jus Civile commune and the other Jus Civile particulare To the first they referr also some Municipal Laws especially those Constitutions of the Empire since it was translated to Germany as the Aurea Bulla of Charles the 4th Also the Constitutions and Edicts of The Municipal or Civil Laws of Germany the German Emperors in their Diets or Parliaments which are reckoned and referred to the common Civil Laws because they are ordained by Authority of the Emperor and yet they are in true construction but particular Civil or Municipal Laws because they bind none but such as are subject to the Empire or to those places of the Empire for which they are made and which do submit themselves thereto So hath the Kingdom of France The Municipal Laws of France certain particular Civil or Municipal Laws made in their Parliaments which were anciently the Councils of their Kings but when the Kings of France did separate their Councils of State from those Parliaments yet the Parliaments have been held in certain Cities of France as saith Brison President of the Parliament of Paris at certain times of the year The first and principal held at Paris established by Philip the Fair or as some say by Lewis Huttin his Son the second at Tholose for Languedoe the third at Bourdeaux for Aquitain the fourth at Grenoble for Daulphine the fifth at Dijon for Burgoigne the sixth at Rouen for Normandy the seventh at Aix for Provence the eighth for Bretaign instituted by Henry the 2d Anno 1553. They have also Municipal and particular The Municipal Laws of Spain Civil Laws ordained for the Kingdom of Spain as those set down by Alphonsus the 9th And the like for that and other Countries are extant and in use The Kingdom of Scotland hath as The Municipal Laws of Scotland and of England not altogether different this Realm of England several and particular Municipal Laws differing from the Roman Civil Laws As for the Laws of Scotland they are not so far different from the Laws of this Kingdom of England as divers do conceive and that the Laws of Scotland are not altogether unlike these of England but in many points do concurr with them is not improbable For that there is a Book concerning The Law Book of Regia Majestas in Scotland like to Glanvil's Book of the English Laws the antient Laws of that Kingdom termed Regia Majestas which as some Students having read the same do affirm and as it is set forth in the Printers Epistle to Glanvil's Book do agree much and in many places word for word with the said Glanvil's Book and doth often vouch him So that it is supposed the antient Laws of both these Realms did then agree and do yet in most points which have not been altered by Statute since in either of these Realms Also King James in one of his Speeches made to the Knights and Burgesses of the lower House of Parliament did pronounce and declare that the Tryal in the Chancery of Scotland was brought from this of England shewing the time Author and occasion thereof Therefore it An opinion that the Laws of both these Kingdoms may in main points be conveniently made all one may be conceived that there is not such great discrepancy or contrariety betwixt the Laws of both these Kingdoms but that by due examination it will be found that there is or at least may be a consonance betwixt them in many if not in most points But for the Laws of England how they do differ from the Civil and other Laws shall be shewed in the next ensuing Chapter CHAP. III. Of the grounds of the Laws of England and how they do differ from other Laws OUr Laws of England do differ as in name so in divers other circumstances considerations and conditions from the Laws of other Kingdoms and Commonweals First for the name they receive a common appellation of the Common Laws of England a name scarce given to the Laws of any other Nation Why our Laws are called the Common Laws of England Therefore whence it received this denomination of the Common Law may breed some question Some say that it is called the Common Law to distinguish it from the Laws of particular Customs or of Customs allowed for lawful within this Realm But this is not certain nor scarce probable as shall be shewed anon when it shall be demonstrated that these Customs allowed for Law are rather made parts than distinguished from the Common Law Some others suppose that it is called the Common Law of this Kingdom to make difference betwixt it and the Statute Laws which as they are of another kind of constitution than is the Common Law as will be made evident so are they of several sorts in themselves as some of these Statutes are general and ordained for all the Subjects some are particular and made for the settling of particular mens Estates and of particular Trades Corporations and Faculties Therefore these cannot be nor may not be called the Common Laws of the Kingdom that is common to all but only in this sence because they are constituted with the common consent of all The third opinion is that they