contra fecerint quam polliciti professique sunt quidvis potius tulisse quam leges They that did promulgate to the people pernicious and unjust Laws since they did clean contrary to that that they alwayes promised and professed to doe they might better be thought to enact any thing else then Laws And though it be never or very rarely seen that any State doth suffer any law to passe them which doth directly crosse the chiefe and fundamentall Lawes of Nature or which opposes the first and main principles of common Reason as to give direct licence to Atheisme Theft Adultery Homicide invading of the rights or possessions of others Breach of Faith or Covenants Rebellion against Magistrates Disobedience to Parents abandoning of Children or such like for this were too odious and detestable and would presently dissolve all society and government Yet the care of a Legislator doth not determine here but must extend further also if they will have their Laws to be of one complexion and likenesse and all to agree with the Lawes of Nature and the Dictates of sound Reason for to each of those first and fundamental principles there are divers inferiour things and actions appertaining which doe mediately or immediately depend upon and refer unto them standing some in a nearer others in a remoter distance from them but all so knit and conjoyned with the first and main principle to which they are subordinate and do as it were wait upon that if any of them be setled by a Law or practised otherwise then they ought to be the first and great principle also by consequence is violated broken or at least an occasion offered to violate and break it and therefore the Legislators care must be to settle these inferior and subordinate things also in such wise as that they may not encounter with any chief or fundamental rule of Nature to which they may have any reference or application For instance That Parents should educate their Children and supply them with maintenance is a Law proceeding from Nature And though no humane Law was ever found that discharged Parents of such their duty yet if a Law shal leave it free to a Parent when he dyes to give away all from his own Children to a stranger or to dispose of all to one child without making any provision for the rest is not that fundamentall Law of Nature thereby consequentially infringed and broken By the Roman Law therefore which does strictly tye all Parents to this Duty f Co. de Alend Liber there is such a proportion due to Children out of their Parents estates when they dye as the Parents but upon certain causes just and true cannot give away from them which was the third part if there were four children or under or half of the whole substance if there were more amongst them all the rest they might freely give away to whom they pleased And this the Law made so sure to them that though the Father for some offence did suffer Death and his Estate was confiscate yet half the Estate should goe to the Children notwithstanding Ne alieno admisso graviorem poenam luerent quos nulla contingeret culpa g Lib. 7. dig de Bon. damnaâ—â— Lest the Fathers fault should prove a sharper punishment to them that offended not except the fault were Treason in which case for terror to others they lost all Vt chariâ—as liberorum amiciores parentes reip redderet h Lib. 8. dig quod metus caus sect fin That their very affection to their Children knowing how greatly they were like to suffer after them might make them timorous how they so offended Likewise if the Parent shall make no Will nor make any disposition of his Estate in his life time but dye intestate if when one of the Children hath entred upon his Fathers Estate though by lawfull Aathority the Law of a State shall adjudge the whole Inheritance unto him and not admit any of the rest of his Brethren and Sisters how many soever they be to divide or to have any share with him neither in reall Estate nor personal surely this is a contradiction to that Original Law of Nature that bindes Parents to provide for all those that are of the same Flesh Blood with them for what themselves cannot doe being dead their Estates ought to performe The Civil Law therefore making no difference between Land and Goods nor between Eldest and Youngest nor Male and Female divides the whole Estate reall and personal equally amongst the Children Ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem addicit velut ad debitam successionem eos vocando sayes i D. l. 7. Dig. de Ben. damn l. 7. Dig. si Tab. testam null s 1. Paulus There is as it were a secret Law made by Nature her selfe that settles the Parents Estate upon the Children calling them to succeed as in their proper right And Omnia quae nostra sunt liberis nostris ex voto paramus sayes k Lib. 50. Dig. de Bâ—u libert sect 2. Tryphoninus All that we doe possesse we professedly destine to our Children Neither does it give one childe any advantage against the rest that he has first lawfully got into possession for he has but thereby made himself subject to be sued by the rest to come to a Partition with them l Tot. Tit. dig Co. Famil creise for Action to divide being once brought the Judge is told by m Lib. 25. sect 20. Dig. Eod. Paulus what he must doe Index familia erciscundae nihil debet indivisum relinquere The Judge of a Partition ought to leave nothing undivided A Law then that forbids Parents to cast off the care of their Children as nature does does not agree with Nature nor with it selfe neither if it does not as the Civill Law does make its other constitutions suitable and put it out of the power both of Parents and Children by fraudulent wayes to make their grand Law of Nature and Dictate of Reason fruitlesse and of no effect Likewise it is not sufficient that the Law of a State has not declared any thing against Honour Reverence and awful respect which Nature it selfe has enjoyned Children to yeild unto their Parents except it does dispose and order the actions and demeanour of Children answerable to that very duty for if a State shall give Children a freedome to bring like actions and accusations against their Parents as against others or to Marry without their consent or to give in evidence against them or shall not punish 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. digâ— obseq parent patâ—on pâ—aestand The person of a Parent
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 publicis 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 albeit 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. Tusc l. 1. what all Nations agree on is to be esteemed natural Quod mundus probat non audeo improbare sayes Baldus c Consild 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 squared 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 least the most knowing men Neither do I account that only to be natural rational which was so when the first foundations of the world were laid man became in habitant thereof for then all things were common and men were not gathered into civil societies neither was there any distinction of Nations nor any Cōtracts no waging War nor leading
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 Prelâ—gom 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 Mr. 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 praecepta utriusque eadem sunt sed quia civitates semel institutae induunt proprietates hominum personales n L 76. Dig. de Judic l. 56. dig de Usufruct Populi respectu totius generis hamant privatorum loâ—â—m obtâ—nem Gâ—ot Mare lib. c. â— lex quam loquentes de hominum singulorum officio naturalem dicimus applicata totis civitatibus nationibus sive gentibus vocatur jus Gentimu 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 beyond 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 Bell. 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 Romanls ad omner 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 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 successions 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
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. Co. de Judic 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 Verbum placendi aut Placiti non voluptatis non libidinis non etiam absoluâ—ae est voluntatis sed justitiae rationis consilii f D. sect 6. Inst â—od 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—preâ—ht Inst de rer div in pâ—inc nu 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 listeth as oft as they stand in his way for that is contradicted expresly by divers Texts of the Civil Law i L. 4 co de legib l. 23. de Dig 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 he 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