the Virtuous and Punishments to the Vitious proportioned to their actings which is now almost wholly devolved upon Publick Authority little remaining but Incouragement and Praise to the Virtuous and Discouragement and Discountenance to the Vitious Commutative Justice is the Inclination to give every man his Right and though the Name is taken from the Interchange of private Rights yet it reacheth to all Prestations which are not by way of Reward or Punishment There being nothing here proposed but the private Rights of Men it is only requisite to consider the Laws by which private Rights are Constitute Conveyed or Destitute and these are either Divine or Humane 3. Divine Law is that mainly which is Written in Mans Heart according to that of the Apostle For when the Gentiles who have not the Law to wit written in the Word do by nature the things contained in the Law these are a Law unto themselves which sheweth the works of the Law written in their hearts their conscience also bearing them witness and their thoughts in the mean while accusing or excusing one another This is called the Law of Nature because it is known Naturally either immediately like unto these Instincts which are in the other Creatures whereby they know what is necessary for their preservation So the first Principles of this Natural Law are known to men without Reasoning or Experience without Art Industry or Education and so are known to men every where through the World though they keep no Communion nor Intercourse together which is an unanswerable demonstration of the being of this Law of Nature It is said to be written in the Hearts of Men because Law useth to be written on Pillars or Tables for certainty or conservation So this Law is written by the Finger of God upon mans Heart there to remain for ever Such are the common practical Principles that God is to be obeyed Parents honoured our selves defended violence repulsed Children to be loved educate and provided for 4. With these common Principles With which God hath sent Men into the World he gave them also Reason that thence they might by consequence deduce his Law in more particular Cases and this part of the Natural Law is called the Light or Law of Reason It is called by Solomon the Candle of the Lord searching the inward parts Proverbs 20. verse 27. 5. This Law is also called Conscience which is said in the forecited place to bear Witness and thereby our thoughts do either accuse or excuse one another according to the Judgement or Testimony we have of our own Thoughts as good or evil consonant to or dissonant from the Law of Nature shining in the heart This Natural Law as it is derived from these Principles the nearer it is thereto it is the clearer and by the more immediate consequences it be derived it is the surer for as the Body in its progressive motion from one step to another walketh surest by the shortest steps so doth the Mind in deducing this Divine Law whence it is that this part of the Law of Nature is not equally evident to all men but the more of Reason they have the more clearness they have of it which hath made men of Reason especially these who have exercised themselves in the inquiry of Right to be had in high esteem and admiration amongst men who though their Invention was not so eminent yet their Judgement closed and went along with that as having a native Obligation in it And so many times these responsa prudentium have been received with as much Authority and more heartiness for Laws than the Dictates of Soveraigns Cicero in his Oration Pro Milone Doth excellently set forth and distinguish this Natural Law from Positive Law for saith he Hac non scripta sed nata lex quam non didicimus accepimus legimus verum ex natura ipsa arripuimus hausimus expressimus ad quam non docti sed facti non instituti sed imbuti sumus ut si vita nostra in aliquas insidias si in vim aut in tela aut inimicorum aut latronum inciderit omnis honesta ratio esset expediendae salutis 6. This Law of Nature is also called Equity from that Equality it keeps in all persons and is not framed or fitted for the Interest of any as many Laws of mens choice be from the rigour whereof recourse ought to be had to this Natural Equity for though mens Laws may be profitable and ne cessar for the most part yet being the Inventions of frail men there occurs many casus incogitati wherein they serve not But Equity takes place and the Limitations and Fallancies Extensions and Ampliations of Humane Laws are brought from Equity though Equity be taken some times for the moderation of the extremity of Humane Laws yet it doth truly comprehend the whole Law of Nature otherwise it could not possibly give remeid to the rigour and extremity of positive Laws in all Cases 7. The Law of Nature is also termed the Moral Law being the absolute and adequat Rule of the Manners of men for all times places and persons and this denomination it hath commonly in opposition to the Judicial and Ceremonial Law The Roman Law doth sometime take the Law of Nature in a most strict sense as it excludeth the Law of Reason and as it is founded in the Nature of man in so far as is common with other Animals and therefore they define it to be quod natura omnia animalia docuit as the conjunction of Male and Female or Marriage the Procreation or Education of Children c. But even in that Law the Law of Nature is extended and distinguished into the Original and Primitive Law and that which is derived thence such as for the most part is the Law of Nations and there is no doubt but there is more of the Law of Nature founded in the rational Nature of man as he is a rational and sociable Creature and even that which appeareth to be in the Sensitive Nature is truely founded in the Rational Nature and therefore is not properly communicable unto the Beasts who have no Law but their natural Instincts having only some resemblance to the Law of Nature The Law of Nature as it is imprest in our hearts so in the goodness of God it is exprest in his Word wherein he hath not only holden forth these Sacred Mysteries which could only be known by Revelation as having no Principle in Nature from whence they are deducible but also because through sin and evil Custome the Natural Law in mans Heart was much defaced disordered and erroniously deduced he hath therefore Re-printed the Law of Nature in a viver Character in the scripture not only having the Moral Principles but many conclusions thence flowing particularly set forth This Analogie of the Law of Nature even in the Hearts of Heathens and as it is set down in the Law of God evidenceth sufficiently that both of them proceed
shortly after this greatest perfection of the Roman Law in the time of Phocas the Emperour who Raigned fourth after Justinian and died in the year 565. The Roman Empire being opprest by the Irruption of the Gothes and Longobards the Roman Law did also lye under Ashes above the space of five hundred years until a new shape of the Roman Empyre being set up in Germany Lothaius the Emperour who flourished in the eleventh Century did again revive and restore the Roman Law which thence was every where Taught in the Schools and inlarged with more vast heaps of Commentaries and Treatises then were these of the Ancient Lawers though not claiming the like Authority 12. In the Interim did the Feudal Law or Customs take rise among the Longobards and other Nations who having expulsed out of Italy the Roman Empyre were willing to change their Barbarity and to be successours to the Romans in Seats and Civility and that they might maintain their Conquests gave out all their Lands to their Souldiers and Assecls as Benefices to them for their Service and Assistance in their Wars the example of which and the new Interest it afforded to Soveraigns to have all their Territories to hold of themselves and most of their Subjects by that new relation to become their Feudatars and Vassals hath given the Feudal Law wings whereby it hath spread it self over most of the World 13. In the declining also of the Roman Empyre the Bishop of Rome having mounted himself unto the Imperial Eminence of Universal Bishop did in imitation of the Emperours Cause Compile the Cannon Law and first that part which is called Decretum which was perfeited by Gratian the Monk out of the Fathers Doctors and Counsels though much thrown and vitiat towards the Interests and Errours of the Roman Church And after the Decretals were Compyled by Pope Gregory the ninth out of the Decretal Epistles of the Popes which Boniface the eighth augmented by addition of the sixth Book of the Decretals The first whereof is in imitation of the Digests made of the Sentences of the ancient Lawers and it out of the Sentences of the Fathers Doctors and Councils of the Church and the latter in resemblance of the Codex compacted of the Rescripts of the Popes and that nothing may be improportional unto the Noval Constitutions do answer the Clementins and Extravagants This Pontifical Law extended unto all persons and things belonging to the Roman Church and separate from the Laity all things that may relate to Pious Uses or which may be claimed to be under the protection of his Holiness as Orphans the Will of Defuncts the matter of Marriage and Divorce all which he had obtained to be exempted from the Civil Authority of these Soveraigns who were devoted to that See These things being holy were not to be temerat by the profane hands of Princes or free people and so deep hath this Canon Law been rooted that even where the Popes Authority is rejected yet consideration must be had to these Laws not only as to these by which Church Benefices have been erected and ordered but as to these which contain many equitable and profitable Laws which because of their weighty matter and being once received may more fitly be retained than rejected 14. Before we come to the Customes of Scotland there lies this Block in the way of all Humane Laws that seing as hath been said Equity and the Law of Nature and Reason is perfect and perpetual all Laws of mens constitution seem not only to be dangerous in that they may Impinge upon the perfect Law of God but also to be useless and unprofitable seing men may live better and more safely by the Divine Dictats of God written in our hearts than by the devices of men so that it may be thought that those who in stead thereof imbrace the Laws of men may meet with the reproof of the Israelites who were said to reject God from raigning over them This Reason is so pressing that if the Law of Nature and of Reason were equally known to all men or that the Dispensers thereofcould be found so knowing and so just as men would and ought to have full confidence and quietness in their Sentences it would not only be a folly but a fault to admit of any other Law but the prime Interests of men being to enjoy their Rights not only in safety and security but in confidence and quietness of mind that they may clearly know what is their Right and may injoy the same Therefore Humane Laws are added not to take away the Law of Nature and of Reason but some of the effects thereof which are in our power And therefore as by the Law of Nature man is a free Creature yet so as he may ingage himself and being ingaged by the same Law of Nature he must perform so mens Laws are nothing else but the publick Sponsions of the people which therefore even by the Law of Nature they may and must perform and therefore are they introduced First For clearing and condescending on the Law of Nature and of Reason such Laws can none quarrel because they do not alter but declare Equity and that very necessarily because though Equity be very clear in its Principles and in thesi yet the deduction of Reason further from the Fountain through the byass and corruption of Interest may make it much more dubious in hypothesi when it comes to the Decision of a particular Case in all its Circumstances and therefore it is necessar it be so fixed and cleared by Statutes and Customs suitable thereto that the people may be secured Secondly There be many points of Rights competent to men in Equity as it may be more profitable for the people to forbear the pursuance of them than to be at the trouble and expenses of the pursuit as when Humane Laws do cut offmatters of less concernment and in them rathertake themselves to the honesty of their party than to compulsion by remeids of Law such are the Remuneratory Obligations of Gratitude and the inward Obligations of the Mind as of Affection Love Kindness c. according to the Proverb we cannot poind for unkindness It is not to be doubted but there be more such obligations than are the Obligations relating to outward performances of some palpable or sensible thing and it might easily appear what vexation it might breed if not only the latter but also the former might all be pursued and extorted by compulsion of Law And none can think the Law of Nature injured because of common consent men will spare themselves the labour to pursue those things which they may easily dispense with and so likewise for the same reason though by the Moral Law we are obliged to love our Neighbour as our Selves From whence arise Duties of Charity and Mercy Assistance and Relief yet for the most part men do not compel for the negative of these Commands but only for the
that God is to be obeyed by man 2. That man is a free creature having power to dispose of himself and of all things in so far as by his obedience to God he is not restrained 3. That this freedom of man is in his own power and may be restrained by his voluntar ingagements which he is bound to fulfil or take them up more Summarly The first principles of Right are Obedience Freedom and Ingagement There are also three prime Principles of the positive Law whose aim and terest is the profite and utility of man as the Natural Law is in equo so the positive Law is in bono or utili and upon those two legs doth Justice move in giving every man his Right If man had not fallen there had been no distinction betwixt bonum and equum nor had there been anything more profitable than the full following of the Natural Law but man being now depraved and wanting Justice or that willingness to give every man his Right and apt to fraud or force therefore in this estate it is profitable for him to quite something of that which by equity is his due for peace and quietness sake rather than to use compulsion and quarrelling in all things and to find out expedients and helps to make equity effectual And therefore to make up societies of men that they may mutually defend one another and procure to one another their Rights and also to set clear limits to every mans Property and to maintain Traffick and Commerce among themselves and with others so that the three Principles of Positive Law may be Society Property and Commerce The Principles of Equity are the efficient cause of Rights and Laws the Principles of Positive Law are the final causes or ends for which Laws are made and Rights constitute and ordered and all of them may aim at the maintenance flourishing and Peace of Society the security of Property and the freedom of Commerce and so the Narratives of Statutes do commonly bear the motives introductory towards some of these Heads 18. Obedience is that submission and sequacity of the mind and will of man to the Authority and Will of his Maker immediately oblieging without any tye upon him by himself intimate to him by the Law of Nature Light of Reason and the Conscience whereby man distinguisheth betwixt Right and Wrong betwixt what is Duty and what is not Duty hence do arise these Obligations upon man which are not by his own consent or ingagement nor by the Will of Man but by the Will of God and therefore these are fitly called Obediential Obligations The first and most general of these is To Love the Lord our God with all our heart and our Neighbour as our Selves upon which saith our Saviour hangeth all the Law and the Prophets Matth. 22. vers 40. which is a clear demonstration from his Mouth of the dependence of the Moral Law upon this Principle such are also the Obligations betwixt Husband and Wife Parents and Children and the Obligations of Restitution Reparation and Remuneration in all which we are ingaged not by our will and consent and such are the Obligations which the Civilians call Quasi ex contractu because they find them Obligatory and yet not by Contract and not adverting this their rise from Obedience reduce them to Contracts by a quast 19. Where Obedience ends there Freedom begins and man by Nature is Free in all things where this Obedience has not tyed him until he obliege himself It is a great mercy to man that God hath oblieged him only in a few necessar moral duties and has left him free in much more without any tye upon him as to the matter but with a liberty ad contradictoria that he may do or not do and ad contraria that he may do this or the contrair providing that whatsoever he do even where he is free be ordered and directed to the Glory of God It hath been the opinion of some both Learned and pious that there is nothing indifferent in actu exercito or as it is invested with the Circumstances but that then every thing is a duty or a sin and that because all things must be done to the Glory of God and to mutual edification from whence there is no exception and so are not free that we must make account of every idle word and that we are oblieged to try all things and to hold that which is best These Reasons indeed conclude that there is nothing free as to this contradiction either to be done to the Glory of God or not and to Edification and Use or not but do not conclude that there is duty or necessity in the matter of the Action it self of which either part of the contradiction may be chosen so that either part be useful and ordered to the Glory of God as saith the Apostle He that observeth a day observeth it to the Lord and he that observeth not doth so to the Lord. And likewife in that undenyable instance of Marriage wherein the Apostle debating of the conveniency to Marry or not to Marry doth conclude so that he that Marrieth doth well but he that Marrieth not doth better whereby both parts of the contradiction are approven and that which is less profitable is said to be well done Therefore there is a great difference betwixt duty which is necessar and wherein we are oblieged though we mistake or be wilfully ignorant by the very weight of the matter and absoluteness of the Command wherein the ordering of what is forbidden to Gods Glory will not justifie as we may not do evil that good may come of it as those who killed the Apostles were far from being justified though they thought they did God good service thereby These things are bona honesta mala inhonesta but matters of expediency are but bona utilia or mala inutilia and not inhonesta and therefore our duty in these is that which we conceive most to be for the Glory of God and good of our selves and others but if we do mistake and choose that which is less expedient for these ends we are free God seemeth to do with men as Princes do with their Ambassadors to whom they give some express instructions wherein they have no latitude in their Negotiations and for the rest to do as they shall judge most fit upon the place wherein if acting bona fide they mistake and do not that which is most fit they are not culpable So man being sent into the World to behold the Works of God and to Glorifie him for doing whereof he hath some Rules written in his Heart by the Law of Nature and in the Word of God and for the rest is allowed to do as he conceiveth most conducible thereto that whether heeat or drink or whatsoever else he do he do all to the glory of God It were a sad Rack to the Consciences of men if their errors and mistakes in the matters of
from the same Omniscient Author 8. Beside this natural necessar and perpetual Law God hath also given to men voluntar and positive Laws which though not at the pleasure of men yet in themselves are mutable and as they had a beginning so some of them had and others of them shall have an end when the occasion exigence and utility for which they were constitute shall cease such were the Ceremonial Laws which containing a Figurative and Typical Administration of the Worship of God shadowing forth Christ and his Propitiatory Sacrifice of himself now when the Sun of Righteousness hath arisen these shadows have flown away and are in the Scripture repealed in lieu whereof is the outward Order of the Worship and Government of the Christian Church and the Laws of God relating thereto though we are to expect no change of them while Time is and are as binding to all to whom their Lines are gone as the Natural Law yet are they no part of it for they are not written in the heart of man nor deducible by Reason from any such Principle Such are the Sabboth on the first day of the week the particular Offices in the Church their Authority and Maintainance for though the Law of Nature doth teach that God is to be acknowledged and adored yet the impowering of some certain persons to be leaders in the Publick Adoration and the fixed time thereof either as it was under the Law or as it is under the Gospel cannot be reached thence but had its beginning and hath been altered Some also do account Marriage and the degrees forbidden in Levit. to be a positive Law of God though they acknowledge it not only to be given to the Jews but to all men yet the natural and universal aversion of Marriage in these degrees and abhorrence of that brutish commixtion without discretion of degrees which is observed in all Nations whom corrupt custome hath not so far depraved as to forget not only this but most of the uncontroverted Laws of Nature do sufficiently evince the contrair for if Parents and Posterity be all accounted as one Degree there is nothing prohibited by the Law of God but the very next degree of these who are in the place of Parents as Uncles and Aunts or in the place of Children as Nephews Neices or Brethren and Sisters so that there can be no doubt but the prohibition of commixtion of Ascendents and Descendents is purely Natural 9. The prime Positive Law of God is the Judicial Law which God by the Ministry of Moses prescribed to the People of Israel wherein the Lord was pleased to be the particular Law-giver and Judge of that People whom he had chosen from among all Nations for a peculiar People to himself and to whose Inclinations it is befitted there are not a few who esteem the Judicial Law oblieging to all Nations mainly because it doth not appear in the Gospel to be abolished as the Ceremonial Laws are and because of its excellency beyond the Laws of Heathens or other men who might not only err in expediency rendring their Laws unprofitable but also might make them unjust and inconsistent with the Immutable moral Law of Nature which Reasons do sufficiently infer that in the constitution of Humane Laws chief respect ought to be had to the Judicial Laws of God and they assumed where the Inclination of the People and their condition do not render them inconvenient But that these Laws were accommodate unto their proper temper is evident in the Law concerning the Bill of Divorcement which beareth to be permitted for the hardness of their hearts which was natural and peculiar to them of Jealousie and bitterness against their Wives therefore the Lord not only appointed tryal neither natural necessar nor accustomed elsewhere by those tokens of Virginity for evidencing the Wifes faithfulness in not giving a polluted Woman for a chast but also the extraordinar and miraculous Tryal by the Water of Jealousie and therefore Christ did expresly abrogate that Law and shew us that Moses did not command to Divorce but for the hardness of their hearts only permitted it and did command that when the Husband would put away his Wife he should give her a Bill of Divorce but it doth not follow that the Judicial Law is in it self a Law to all Nations or that the Lord purposed it so to be but on the contrar it appeareth that his Purpose was only to deliver it for a peculiar Law to Israel when he saith What Nation is so great that hath Statutes and Judgements sorighteous as is all this Law which I set before you this day Deut. 4. vers 8. And again he sheweth his Word unto Jacob his Statutes and Judgements to Israel he hath not dealt so with every Nation and as for his Judgements they have not known them Psal. 147. vers 19. And therefore the same Law was not to Israelits and to Strangers even to Proselytes as appeareth in the matter of Usury and Bondage which were allowed as to Strangers but the former simply forbidden and the latter limited as to Israelits neither is there any necessity of an abolition express of this Law in the Gospel seing it was not given to all Nations and it doth yet bind the Jews so far as it doth not build upon the Ceremonial Law And therefore that part of the Judicial Law which is founded upon or conducible to the Moral Law may be well received by other Nations to whose Inclinations the same expediencies will agree as most of the Criminal Laws are And though they could suit with the frame and current of the Laws already established yet would they be far from making up a Law to rule any Nation now after mans Pravity hath so much increased Vice and Deceit that which was sufficient in the simplicity of these times would come far short 10. Humane Law is that which for Utilities sake is introduced by men which is either by tacit consent by consuetude or custome or by express Will or Command of these in Authority having the Legislative power and these were ofttimes written though sometimes also they were not written as were Licurgus Laws which not only were not written but a Law against it that they should not be written Hence is the distinction of Laws in written and unwritten because of their Original for ex post facto Customes or other unwritten Laws may be written by private persons but they were not at first written by the Law Giver It is true the Law is sometimes strictly taken in opposition to Custome as it comprehendeth Equity or the Natural Law and the Edicts and Statutes of Nations and their Law givers And sometimes more strictly as in the Vulgar Distinction of Law Statute and Custome in which Law signifieth Equity or the Common Law as Statutes and Customes do the peculiar recent Laws of several Nations And though that be only the Law of man which is voluntar and positive constitute by
Inconsistency if that power were in many and so behoved to resolve in a management by the common consent of the Wives 4. The Degrees in which Marriage is allowed or forbidden are by divine Institution for the next Degree collateral is only forbidden for of Asscendents and Descendents there is properly no Degree the great Grandmother being in that regard as near as the Mother and so the next collateral to all Ascendents and Descendents is in the same Degree with Brothers and Sisters and Uncles and Aunts Nephews and Nieces are alike in the Propinquity of Blood with these and the great Grandmother's Sister with the Mothers Sister else if these were different Degrees there would many Degrees interveen betwixt a Person and his great Grand Aunt But that there is a natural abhorrence of that Promiscuous Commixtion of Blood it is commonly acknowledged over all the World as to all Ascendents and Descendents And as to the next Collaterals the Word of God cleareth it not to have been a Positive Law given to the Jews but to have been a Common Law to the Gentiles also and therefore Lev. 18. where the Degrees of Marriage are exprest and unlawful Commixtion forbidden It is subjoyned v. 24 25. Defile not your selves in any of these things for in all these the Nations are defiled which I cast out before you and the Land is defiled therefore do I visit the Iniquity thereof upon it But unless these Degrees of prohibite Marriage were a part of the Law of Nature written in Man's heart or a common positive Law known to the Nations the Lord who hath declared that he will judge men by that Law which is known would not so have judged the Caananites 5. The Perpetuitie of Marriage is also evident by our Saviour's Sentence against Arbitrary Divorce which was permitted by the Law of Moses for the hardness of that Peoples hearts but the Lord cleareth up the Ancient Law of Nature from the beginning it was not so which sheweth the Perpetuity of that Law and that it was before the Judicial Law and therefore he concludeth that whosoever putteth away his Wife except for Fornication is an Adulterer 11. For understanding of these Conjugal Rights it will be necessar 1. To consider the Constitution of Marriage 2. The Dissolution of it 3. The Rights and Interests thence arising For the first Marriage is defined by Modestinus to be the Conjunction of Man and Woman to be Consorts for all their Life with a Communication of Rights Divine and Humane l. 1. ff de ritu nuptiarum so the essence of it consists in the Conjugal Society the special nature of which Society appeareth by the state Interest and Terms that the married Persons have thereby It may be questioned whether the Conjunction wherein Marriage consists be a Conjunction of mindes by mutual consent to the married state and that whether privatly or in the publick Solemnity or whether rather it be a Conjunction or Commixtion of Bodies For clearing whereof consider that it is not every consent to the married state that makes Matrimony but a consent de presenti and not a promise de futuro Matrimonio for this Promise is only the Espousals which are premised to Marriage and that so solemn an Act might be with dew Deliberation and therefore though as other Promises and Pactions Espousals be naturally obligatorie and effectual also by the Canon Law whereby the espoused Persons may be compelled to perfect the Marriage unless there arise some eminent Discoverie of the Corruption or Pollution of either Party or defect or Deformity through Sickness or some other Accident C. de literis extravag de sponsalibus cap. 2. eodem c. ult de Conjug yet by the Civil Law there is place for either party to repent and renunce the Espousals l. 1. Cod. de sponsalibus which is also the custom of this Nation for Marriage uses not to be pursued before Solemnization râ— integris so that the matter it self consists not in the Promise but in the present Consent whereby they accept each other as Husband and Wife whether that be by words expresly or tacitly by marital Cohabitation or Acknowledgment or by natural Commixtion where there hath been a Promise or Espousals proceeding for therein is presumed a conjugal Consent de presentâ— The publick Solemnity is a matter of Order justly introduced by positive Law for the certainty ofso important a Contract but not essential to Marriage thence arises only the distinction of publick and solemn privat or clandestine Marriages and though the Contraveeners may be justly punished as in some Nations by the Exclusion of the Issue of such Marriages from Succession yet the Marriage cannot be declared void and annulled and such exclusions seem very unequal against the innocent Children But by our Custome Cohabitation and being commonly repute Man and Wife validats the Marriage and gives the wife right to her Terce who cannot be excluded therefrom if she were reputed a lawful Wife and not questioned during the Husbands life till the contrary be clearly decerned Par. 1503. cap. 77. So also a Contract of Marriage was found valid against the Husbands Heir though the Marriage was never solemnized in Kirk nor Congregation Hope t. Husband c. William Barklay contra Anna Naper The like found to exclude the bastardy of the Children by the Father and Mothers being repute Married and keeping house and society together for several years Nicolson de Agnoscendis liberis Brok contra but the contrair was found where it was positively proven that the Defunct had another Wife Ibid. Archibald Chirnside contra Isobel Grieve and John Williamson So likewise in the former case a Contract of Marriage was found valid and the Man thereby oblieged to Solemnize the Marriage seing he had procreate Children with the Woman and by his missives had acknowledged he had Married her though by a Contract posterior to the Contract of Marriage she had renunced the same Nicol. de sponsalibus Barclay contra Janet Kelly But where a Man by his Write had acknowledged that such a Child was got under promise of Marriage and promised to solemnize the same yet the Lords on the mans alledgance that the woman had born a Child to another and her answer that it behoved to be presumed his would not sustain that presumption without instructing their conversing together medio tempore January 31. 1665. Christian Barclay contra George Baptie It was also found lately relevant for validating a Contract of Marriage sixteen years Cohabitation and being repute Man and Wife Elizabeth Grierson contra Laird of Craigdarroch As to the other point though the commixtion of bodies seem necessar for the constitution of Affinity arising from Marriage yet the opinion of the Canon Law is true consensus non coitus facit Matrimonium but this consent must specially relate to that Conjunction of Bodies as being then in the consenters capacity otherwise it is void so the consent of persons naturally impotent or
consequence form the Law of Nature and seing there is no different proportion held forth by this Text or by the Light of Nature The Succession of all Children must be in Equal shares whether Male or Female for in all Communions and Partnerships an Equal Division takes place except an Unequal be expressed 4. It is more dark whether by the Law of Nature there be competent the Right of Representation whereby the Issue of the Defunct Children represent them and come in with the surviving Children to get that Share which their Defunct Parent would have got if alive whereby they would not succeed in capita the whole Successors getting Equal Share but in stirpes Whereby the Issue of the Defunct Children though they succeed equally among themselves yet unequally with the surviving Children because the whole Issue of the Defunct get but an equal share with each of the surviving Children As if a Father having three Children the eldest dying before him leaves one Child and two Oyes by another Child if there be place for representation the Heritage would divide in three the two surviving Children will have two third parts the other third will divide in two whereof the Child of the Defuncts will get one half and the other half will divide equally betwixt the two Oyes So then the question is whether the Descendents will thus succeed or if the Survivers will wholly exclude the Issue of the Deceasing This Right of Representation taketh place with us and most other Nations in the Right of Immoveables Which we call Heritable Rights whether it be of Descendents or Collaterals But doubtless in that the Course of the Law of Nature is altered for the preservation of the Stock or Stem of the Familie So that it is clear that there is no Right of Representation in Collaterals by the Law of Nature as that the Child or Grand-child of a Brother should come in with a Brother because the Propinquitie of Blood Natural Affection and so the Presumed Will of the Defunct is diminished But it is not so clear in Descendents neither shall we be positive in it but it seems most suitable to Reason and the Text adduced That if the Issue of Defunct Children remain in the Familie that they should come in by Representation in the place of their Defunct Parent for these that are in the Family extendeth to all that are not Forisfamiliat whether Children or Grand-children to whom there remaineth like affection in the common Parent but when the Defunct Child was forisfamiliat and so presumed to have been provided and to have gotten a Share and therewith put out of the Familie to live in a distinct Familie In that case there seems no ground for Representation which doth agree to our Custom in the Succession of Moveables wherein there is no Right of Representation but the nearest of Kin exclude the Issue of the Defuncts which were of the same degree which Suceession is certainly more near unto the Natural Succession What hath been said may sufficiently clear the Natural Succession of the Defuncts descendents whether Children or Grand-children and while there are any Descendents there is place for no other 5. The third Branch of Natural Succession failing the express will of Defuncts and their Descendents or the Issue of their Bodies is of Parents among whom these in the nearest degree are preferable as Father and Mother And if the Father be dead there seems to be place for Representation to his Father to come in with the surviving Mother Equally But other Parents of or by the Female Line who are in another Family from the ground laid in the Text of providing these in the Family seem not to come in to exclude Brothers and Sisters and other Collaterals in that Family as the Grand-father and Grand-mother on the Mother side It will not be opposite to this which is said Children are not to lay up for Parents but Parents for Children which is not to be understood absolutely but comparatively and according to the ordinar course of Nature 6. The fourth Link of Natural Succession is Brethren and Sisters among whom Brethren and Sisters German being related by both Bloods exclude these who are only of one Blood by the Fathers side the reason is because the presumed will of the Defunct being from their Interest and Relation these of double Relation by both Bloods are preferable to these of single Relation 7. The last degree of Natural Succession is of Uncles Aunts Nepheus Neices all which being in equal propinquity to the Defunct come in together And failling these the Succession would befall equally to the nearest degree of Cousines among whom the nearest degree excludeth the father without Right of Representation And these conjoyned by both Bloods exclude these onjoyned by one Husband and Wife doth not succeed properly either to other but having a communion of goods there is a Division by the Death of either 8. The main question is here whether there be Naturally any difference in Succession betwixt the Collaterals on the Fathers side who are called Agnats and the Collaterals on the Mothers side who are called Cognats Justinian in his novel Constitutions cap. 4. 127. took off all distinction of Agnats and Cognats in Succession For which he is generally reprehended by Interpreters Who behold such a difference even in equity Cognats being conjoyned by Women who ordainarily are under the power of others even naturally by Marriage And so being of another Family they are not of the Defuncts own Family as the Agnats are amongst these the Mother Fathers Mother or other Ascendents on the Fathers side in his Family are not hereby excluded and so neither these or other by their express nor presumed will can transmit any Goods or Estates Yet this point remaineth more dark And I conceive what hath come by the Mothers side or by the Grand-mother c. therein the Cognats of her Blood would naturally succeed because there are two grounds of Presumption joyned Propinquity of Blood and Gratitude or Remuneration to that Linage by whom such things by Succession came So that Paterna Paternis Materna Maternis ought to take place in equity as the presumed will of the Defunct unless the express will or the Law or Custom of the place be to the contrare So much for the Natural course of Succession which hath been the more insisted in not only to shew the goodness and righteousness of GOD instructing man with an in-bred Law written in his heart though he were destitute of any humane constitution or custom so that he might walk justly in this important matter of Succession Albeit all the Lines of this Divine impression be no clear to our Sin-dimmed eyes But also that where positive Law or Custom is dubious in the matter of Succession or is defective therein Emendation and Extention may be fetched thereto from the Law of Nature we shall now proceed to the positive Law of God given to Israel concerning
expediency were to lyeas a guilt upon their Consciences but that bona fides or conscientia illesa so much spoken of in the Law is that which cleareth and acquitteth men in such mistakes From this Freedom doth arise not only our Personal Freedom and Liberty whereby men are sui juris but also their power of the disposel of other things within their reach or that Dominion which God hath given them over the Creatures 20. As Freedom began where Obedience ended so Ingagement begins where Freedom ends it being our voluntar oblieging of our selves where by Nature we are Free every such Obligation is a diminution of that Freedom for thereby we are either restrained from that power of disposel of the Creatures or may be constrained to some performances contrair to our Natural Liberty Some hold it not lawful for us To give away our Native Freedoom in whole or in part or to bind our selves where God has left us free and that such Ingagements except where they are profitable for us or for an equivalent cause are not obligatory which shall be more proper to debate when we come to the Obligations by Paction Promise or Contract all which do arise from the Principle of Ingagement but it shall be sufficient here to conclude with the Law that there is nothing more Natural than to stand to the Faith of our Pactions This much for the Common Principles of Law 21. As to the Object thereof the formal and proper Objects of Law are the Rights of men a Right is a power given by the Law of disposing of things or exacting from persons that which they are due this will be evident if we consider the several kinds of Rights which are three our Personal Liberty Dominion and Obligation Personal Liberty is the power to dispose of our Persons and to live where and as we please except in so far as by Obedience or Ingagement we are bound Dominion is the power of disposal of the Creatures in their Substance Fruits and Use Obligation is that which is correspondent to a Personal Right which hath no proper Name as it is in the Creditor but hath the Name of Obligation as it is in the Debitor and it is nothing else but a legal tye whereby the Debitor may be compelled to pay or perform something to which he is bound by obedience to God or by his own consent and ingagement unto which Bond the Correlate in the Creditor is the power of exaction whereby he may exact obtain or compel the Debitor to pay or perform what is due and this is called a personal Right as looking directly to the person oblieged but to things indirectly as they belong to that person So Dominion is called a real Right because it respecteth things directly but persons as they have medled with these things by which it is clear that all Rights consist in a Power or Faculty the Act whereof is Possession Injoyment or Use which is a matter of Fact and no point of Right and which may be where no Right is as Right may be where these are not 22. The Roman Law taketh up for its Object Persons things and Actions and according to these orders it self but these are only the extrinsick Object and matter about which Law and Right are versant but the proper Object is the Right it self whether it concerns Persons Things or Actions and according to the several Rights and their natural order the order of 〈◊〉 may be taken up in a threefold consideration First in their Constitution and Nature Secondly in their Conveyance or Translation from one person to another whether it be among the living or from the dead Thirdly in their Cognition which comprehends the Tryal Decision and Execution of every Right by the legal remeids whereby the whole method may be clearly thus First of the Nature of the several Rights and because Liberty standeth in the midst betwixt Obligations of Obedience which are anterior and of Ingagements which are posterior but both these being of the same Nature must be handled together and therefore Liberty must have the first place and next Obligations Obediential and then Conventional and after these Dominion in all its parts And in the Second place shall follow the conveyance of these several Rights And Lastly Cognition of all the judicial Process and Executions Rights in respect of the matter are divided in publick and private Rights publick Rights are these which concern the State of the Common-wealth private Rights are the Rights of Persons and particular Incorporations of which in their places TITLE II. Of Liberty 1. Liberty described 2. Liberty distinct from Dominion and Obligations 3. The Principle whence Liberty ariseth 4. Restraint and Constraint 5. Liberty is bounded by Obedience 6. It is diminished by Delinquence 7. By Ingagements 8. By Subjection 9. Liberty is lost by Bondage 10. Bondage introduced by the Law of Nations 11. Bondage lawful 12. Manrent 13. Manumission 14. Patronage 15. The condition of our Servants 16. Injuries against Liberty how obviat 1. LIBERTY is that Natural Power which man hath of his own person whence a Free Man is said to be suae potestatis in his own power and it is defined in the Law to be a Natural Faculty to do that which every man pleaseth unless he be hindred by Law or Force 2. That there is such a Right distinct from the Dominion of the Creatures and from Obligation it is evident from this that it can be referred to none of these and yet is the most native and delightful Right of man without which he is capable of no other Right so Bondage exeemeth man from the account of persons and brings him rather in among things quae sunt in Patrimonio nostro and the incroachments upon and injuries against the Right of Liberty of all others are the most bitter and attrocious for the non-performance of Obligations or Duties to us or the taking away or detaining of the things of our Property are not to be compared with the laying violent hands on our persons 3. This Right ariseth from that Principle of Freedom that man hath of himself and of other things beside man to do in relation thereto as he pleaseth except where he is tyed thereunto by his Obedience or Ingagement and this part of it which concerneth Personal Freedom is maintained by that Common received Principle in the Law of Nature of self-defence and preservation for as Cicero saith in his Oration Pro Millone Haec ratio doctis necessitas barbaris mos Gentibus feris natura ipsa prescripsit ut omnem semper vim quacunque ope a corpore a capite a vita sua pro pulsarint And as saith Gains Adver sus periculum naturalis ratio permittit se defendere which is only to be extended to private and unlawful violence 4. Opposite unto Liberty are Restraint and Constraint Restraint hindereth man to be where and go whither he will and Constraint forceth him