Regiae ex-leverunt iterumque caepit Populus Romanus incerto magis jure consuetudine aliqua uti quà m perlata lege ià que prope vig nti annis p ssus est Kings being driven out of the Empire their Lawes presently ceased and the people of Rome did again begin to be governed partly by arbitrary discretion and partly by custome rather then by any written Law and so continued for twenty years together And so it comes to passe that new Lawes are alwaies prepared to suit with a new Government Yet upon no change whatsoever are meer rationall Lawes repealed or grow out of use The reason hereof is because men can never lose their Nature forgoe their Understanding or quit their Reason Neither can a supposition be admitted that such Laws as these can be unsuitable to any Government for what kind of Government hath been hitherto devised by Man or established in any Nation with the which naturall Equity or the dictates of right Reason has not suited Nay it should be rather concluded there may be a Tyranny but there can be no government without them Hereupon it has been that no change that ever happened in the Roman state no nor the overthrow of the State it self could take away the force or use of the Roman Civil Law but that other Nations have assumed it into their territories and have made it serviceable to their occasions and wayes of governing how various and differing soever those occasions and kindes of government have been Furthermore though Lawes with all other worldly things besides have their times to waxe old and as it were decrepite in according to that of Claudian Firmatur senium juris priscamque resumunt Caniciem leges emendanturque vetustae Acceduntque novae Yet those Lawes that are inspired by Nature Reason and pure Equity can never in any time in all places at once lose their esteem or use These are the Lawes that carry a clause of perpetuity with them they were first born with Man and can never dye before him It might well be reckoned amongst the wonders of the World that the Civil Law made so many hundred years agone and which has seen the spoil and overthrow of Rome it selfe and many other States and Empires besides should still flourish in the Europaean Nations as if it were but new sprung up but that surely the eminent wisdome and known reason that is in it hath given that Law a life as lasting as the World it selfe It hath been observed of all Arts and Sciences that there is a kind of circular progresse in them they have their birth their growth their flourishing their failing their fading and within a while after their resurrection and reflourishing again And Aristotle f 1. Decaele ◠Mottor himself who held the Arts Eternall as he did the World yet tells us there was alwaies a rising and a falling of them as of the Starres so as sometimes they flourished in one place and age and sometimes in another as the Starres sometimes shine in our Hemisphere sometimes in the other And so it may fare with that Noble and usefull Science of the Civil Law in like manner it may be obscured and under a dark thick cloud for a while in one place or other but it can never be irrecoverably lost every where but it will still find some place to prosper in till at last it be even courted to return thither from whence it was before expel'd Lastly to shaw the benefit of clear and rationall Justice yet further As it is of highest advantage and benefit to a Nation to purchase the acquaintance and correspondence of other Nations abroad as well for traffique sake by exchanging their Commodities together as also to be confoederated by a league with them to be made the stronger and likewise for doing all good reciprocall offices each to other so nothing can more strongly invite forreigners frequently to resort unto to trade deal and communicate with a Nation then an assurance that in all their dealings if difference happen to arise they shall receive plain and clear justice fetcht as it were from the very bowells of Heaven and Earth and grounded upon the very fame reason they bring into the Nation with them But if in stead of this fair and civil entertainment they shall be led into labyrinths of something call'd Law where they can discover no light of that reason whereof they partake as men nor yet any of those principles which in the acts of Justice are currant amongst all other civill Nations they will conclude it is not safe nor honourable to converse any longer with such a Nation but will forsake and abandon it as barbarous CHAP. VIII That Christian Nations having entertained the Civil Law into their Territories have thereby acquired to themselves the most rationall Law that hath been ordained as by the constitutions thereof will appear THus have I laid down the most excellent fruits that a Nation reaps by framing for it selfe such Lawes as are agreeable to the old and ancient grounds of Reason in Nature the Grandmother of all Law justly so styled Of the which the Nations of Christendome for these many hundreds of years have therefore very plentifully partaken because they have admitted into their Schools and Academies the Study and into their Tribunalls the use and practice of the Roman Civil Law for although all publick businesse and the generall affaires of State wherein the interest of the common welfare lyes are carried on by Laws of each Countreys own making fitted to time place persons occasion and accidents that doe happen which the Civil Law cannot be made to serve nor suit withall so vatious each Nations exigencies and occasions are Yet they borrow their greatest if not all their light and direction from the Civil Law in setling the contentious bufinesse a Omnia judicia aut distrabendarum controversiarum aut puniendorum malesiciorum causa reperta sunt Cie pro Caecin of the Subject and the matters that arise in difference betwixt party and party their perfectest Municipall Lawes having contributed so little towards their determination that in comparison of what they have made no provision at all in that which they have seemed to provide for is to be accounted nothing Most States employ their consideration most upon the publick welfare and upon such interests as have an universall effect upon the whole body as easiest to be seen and requiring but one and the same remedy for all But in a numerous multitude and where their transactions and dealings with one another are so various and indeed by different circumstances become infinite to suit each persons case and businesse with a proper and fitting rule to decide it is a work so void of end or bottome and past finishing that no State will set upon the enterprize to begin it especially when the Art and Science of the Civil Law has done it to their hands so excellently well and with so much wisdome
Law and to keep it from getting above and prevailing over the Laws and Customes of their own Territories for that were no less then to worship two Suns in one and the same firmament and to call in the Roman Sovereignty which was long ago cast off But that the Civil Law should not be studied publickly taught no degrees taken in it nor cited in their Judicatories in a ministerial and subordinate way to their own municipal Laws and Customes or that it should not be admitted to teach us true equity and sound reason their restraining Edicts never have so far prevailed so totally to suppress it from the time of Lotharius the second the first restorer and reestablisher of it to this present which is now full 500 years Plurimùm distat lex à jure sayes the same Bodine Jus enim sine jussu ad id quod aequum bonumque est lex autem a◠imperantis majestatem pertinet There is much difference betwixt Right and Law for Right without any command insinuating it self into the soul of a just man recommendeth to that which is good and equal but Law importeth a command of some Sovereigne which may force and hurry the will to such an action which in equity or right reason may not be good or laudable As a Law to bind by its own proper power and vertue or by any authority of those that made it the Imperial Law is not admitted in any Nation Yet no Christian Nation with all the express decrees that that they have at any time made against it has been able to exclude it as it containes veram naturalem rationem optimum inter omnes leges humanas exemplum aequitatis normam authoritatem prudentum veram justitiae rationem artem scientiam juris ut bonos mores complectitur they all admit it as it does propound and hold forth true natural reason and as it is the most imitable pattern amongst all the Laws of men the rule of equity the voice of Sage men the true method of justice the art and knowledg of doing right and as it comprehends instructions for a moral life For thus to shut the door against it were to renounce reason equity justice and to defie all moral goodness Thus much may very well suffice to shew how the Roman Civil Law has had the singular honour and prerogative which no other Law has had to be rescued from that universal deluge of abolition which hath swept away all other ancient Laws besides it and not onely to out-live Rome it self but to out-stand many dangerous assaults and casualties and divers sharpe penal Edicts that have been made against it and to continue to this very time a large and accomplished body This surely next to the providence of God who hath so disposed it must needs be ascribed and the cause must needs be conceived to be some especial excellency and rare wisdome that is in the Law it selfe For else why has not other Laws continued as long as that has done CHAP. IV. That Forreigne Nations in doing of Right between Man and Man do mainly practise and make use of the Rules and dictates of the Civil Law THat the Roman Civil Law framed so many hundred years ago and devised for the use of one Nation onely is still extant and in being at this day the state it self being quite extinct possibly it may not seem commendation and praise sufficient except the use practise and observation of it up and down divers great Nations of the World be also shewed The next thing therefore that we have to say in further praise thereof is that the greatest and best ordered Nations though they manage their publick occasions and affaires of State by rules and directions of their own ordaining having an eye to the nature of their people way of government and present exigencies onely yet in the dispensation of private justice and in pacifying the debates and differences that do arise between their subjects where meer right and equity onely is considerable they use and practise the rules and principles of the Civil Law chiefly Peculiar Statutes Ordinances Customes and municipal Laws every State has of its own making which in the regulation of its proper affairs it does prefer before any other Laws or constitutions whatsoever though in reason and convenience they may seem much better Yet humane occurences are so many in number and in circumstances so greatly differing one from the other that no Nation is perfectly supplied with Laws of their own to answer them but that there is still need of some subsidiary Law more universal and comprehensive then its own And from this ground is it that most States have entertained the Imperial Law to supply and assist where their own is defective making their study and science of Law to consist in that but the use and exercise thereof to be restrained and bounded by their own proper Laws which every Nation requires to have first known and chiefly to be observed Wherefore if you travel into their States and shall ascend up into their Courts and places of Judicature both Judges and Advocates will be every where found to be all Civilians and Graduates in that faculty the proceedings in causes there to be most after the form and manner of the Civil Law And when any case comes to be resolved by final sentence if there be any proper or peculiar Law of their own Countrey to determine it judgment passes as that special Law directeth but if that be wanting as commonly it is presently recourse is had to the Civil Law and by that is it both pleaded and judged Which because it shews the transcendent excellency of this Law being incident to no other Law besides and being not throughly enquired into may seem incredible to many men it is therefore a point worthy of a strict examination and fit to be fully cleared and perfectly understood For peradventure it may not pass without a wonder that a Prince or Common-wealth should not be able to manage their rule and government by Laws of their own devising or that any differences should arise amongst their people which they knew not how to decide of themselves but must consult with the oracles of other Nations It eclipses some may think the Majesty of a State to have rules prescrib'd to it by others And since the time that a divivision of Kingdomes was first made and each had their bounds set them no Potentate no not the Emperour himself has pretended to a power to give Law to any but to such as have been his subjects by birth habitation or conquest Neither can Lawes be made to regulate the whole World or to bind all people sayes Suarez m Lib. 3. de legib ca. 4. nu 7. ea 7. nu 9. Besides quae leges Romanis congruebant non omnibus jam congruunt mutata est ratio vivendi status rerum mutatus sayes Ludovicus Vives n De caus corrupt art
the Roman Law and now they are as it were united together albeit there lies no tie of command upon us in Spain to enforce a submission to it CHAP. V. The general admittance and use of the Civil Law in forreign parts is acknowledg'd by our selves here in England I Shall not travail any further to cite any more forreign testimony to prove that this Law is generally received and practised by other Nations and the rather because Dr Duck in his book has by variety of proof so sufficiently made it good already But yet it is worth the setting down what some of our own Countrey-men have in their writings acknowledg'd to the very same purpose and those especially amongst the rest whose interest and high valuation which they pass upon the Laws of their own Countrey will not permit them to ascribe more to the Civil Law then the just truth will bear And it is most observable what King James himself the learnedest of all modern Princes said here in a Speech made to no less solemn assembly then his Lords and Commons of Parliament u 21. Martii 1609. which we have extant amongst his printed works As a King saith he I have least cause of any man to dislike the Common-Law for no Law can be more favourable and advantagious for a King and extendeth further his Prerogative then it doth And for a King of England to despise the the Common-Law it is to neglect his own Crown Yet saith he I do greatly esteem the Civil Law the profession thereof serving more for general learning and being most necessary for matters of Treaty with all forreign Nations And I think that if it should be taken away it would make an entry to Barbarisme in this Kingdome and would blemish the honour of England for it is in a manner lex Gentium and maintaineth entercourse with all forreign Nations But I onely allow it to have course here according to those limits of jurisdiction which the Common-Law it self doth allow it And therefore though it be not fit for the general government of the people here it doth not follow it should be extinct no more then because the Latin tongue is not the mother or radicall Language of any Nation in the World at this time that therefore the English tongue should onely now be learned in this Kingdome which were to bring in barbarisme And in another speech in Star-chamber x 20 Iun. 1616. printed also God forbid saith he the Law of Nations intending thereby chiefly the Civil Law should be barred in this Kingdome and that for two causes one because it is a Law to satisfie strangers which will not hold themselves so well satisfied with other municipal Laws another to satisfie our own subjects in matters of Piracy Marriage Wills and things of like nature And again when he was so mightily pressing to have had an union of England and Scotland under the same policy of Laws as they had but one and the same King in a speech made upon that subject y Ult. Mart. 1607. extant in his printed works he told his two Houses of Parliament that in point of conjunction of Nations the Civil Law ought to bear a great sway it being the Law of Nations These are the expressions of a King the interest of whose Crown and Scepter and the prerogatives thereunto belonging did depend upon the favour of another Law and yet he positively and in down-right termes in the face of all his people avows the Civil Law to be the Law of Nations and that all transactions of Treaty and of Trade with forreign Nations were dispatched by the rule and reason thereof and that the authority thereof was so great in the esteem of strangers that they would rest satisfied therewith when no municipal Law could satisfie them But in that he avers also that when the people of England shall exterminate that Law which must needs be when the practice thereof is quite taken away or thrust into a poor narrow compass their honour will be obscured and they will be in danger to be over-run with barbarisme it was never so well worth the observing as at this present time And it clearly shews that wise and learned King did perfectly understand the true use of the Civil Law for as the language thereof must needs be a means to maintain learning which does civilize soften the minds of men so there is no sort of learning with the which the matter of it does not correspond and participate but above all it does afford more and better rules for civil living and orderly conversation amongst men and for righteous dealing each with other then any other study or learning whatsoever But this practise and usage of the Civil Law in forreign parts is yet better confirmed by the authority of those who studying and professing the Law of England have been alwayes jealous of the rising and growth of the Civil Law in this Nation For though they have desired to keep it low here for what reason I need not mention yet some of them have freely enough owned how much it is in use and practise in other Countreys Sir Francis Bacon in his Epistle Dedicatory to the Queen set before his Maximes of Law after he had told the Queen that Justinian the Emperour did gloriously and yet aptly call the Body of the Roman Laws proprium sanctissimum templum justitiae consecratum a true and a most sacred temple consecrated unto justice he sayes that it is a work of great excellency indeed as may well appear in that France Italy and Spain who have long since shaken off the yoke of the Roman Empire do yet nevertheless continue to use the policy of that Law My Lord Ellesmere Chancellour of England as Sir Francis Bacon was in his speech of the Postnati does expresly deliver that the Civil Law is taken to be the most universal and general Law in the World Sir John Fortescue himselfe Lord chief Justice of England and afterwards Lord Chancellour in King Henry the sixth's dayes in his book wherein he does so highly magnifie and commend the Laws England above the Civil Law yet he could say z De Laud. legum Angliae ca. 9. That Civiles supra humanas cunctas leges alias fama per orbem extollit gloriosa The Civil Laws throughout the whole World are advanced in glory and renown above all other mans Laws Fulbeck also another of the same profession and of great learning does agree with the former in these words a In his parallel part 1. Epistle to the Reader The Roman Laws saith he in the times of Arcadius Theodosius and Justinian recovered their strength and shining to all the Common-wealths of Europe as the Sun to all the climates of the Earth have for their worthiness and necessary use and employment received entertainment countenance and great reward of Emperours Kings and Princes Likewise Mr Selden a Graduate in the Common-Law but a
decrees against it 130. How it came into that forme order and method which now we see it in 167. what a multitude of writers there are in t' is Law fol. 170 Civil Law is not proper to govern every State by fol. 140. 51 Cities three above all others most famous for the study of the Civil Law Rome Berytus Constantinope fol. 122 Civil Law has not of it self any authoritative force to binde as a Law in any Nation but is and must be of force every where as it contains true and solid reason to which all men are to submit fol. 126. 138. 157 Cases that do happen are to be all setled by some rule or other fol. 145 Civil Law perfected as it is at this day very sufficient to resolve all cases that can happen 15. 53. 147. 155 171. and is the true Art and Science of Law fol. 166 Canon Law and Civil Law have been at variance which should spread most 163. 185. yet both of them have been admitted by Princes for several uses 125. 185. that they are not inseparable as some do imagine 184. Canon Law is but the Civil Law applied to the use of the Church and church matters and is in most things the same with the Civil 163. 186 orders divers things meerly temporal under pretence of being spiritual fol. 186 Causes that were tried by the Civil Law before the government changed why they should be tried by the same Law still 178. and in the Epistle D Defence legal ought not even in capital matters be denied a subject against his King fol. 7 Dead bodies not to be arrested nor touch'd in their graves fol. 80 E Exarchate of Ravenna after Constantinople was the seat of the Empire was still governed by the Civil Law fol. 118 England had the Civil Law read publickly in it as soon as it was restered in Italy by Lotharius fol. 125 Ecclesiastical men and Ecclesiastical matters have been and may be regulated by temporal Princes fol. 186. 162 Ecclesiastical men have through favour of Princes rather then of right been suffered to order some causes which are meerly temporal fol. 186 F Fraud so detested by the Civil Law that sometimes it did dissolve the whole bargain sometimes it did enjoyn the whole true value to be paid where one was deceived in more then half the worth 12. never suffered to bring any advantage to the deceiver or to any one else 13. most detestable in those that the Law does most priviledge when deceived fol. 13 Forreign States not to be judg'd by Municipal Laws fol. 146 Forreign States why they do judge so much by the rules of the Civil Law fol. 153 G Great men are not suffered to assume or protect the controversies or litigious suits of others fol. 62 Guardians may husband but not sell the estates of their pupils fol. 106 Government was at first without any Law at all fol. 110 Government being changed the Laws seldome remain the same fol. 116 Government howsoever changed yet the Civil Law is of use fol. 157. 176 I Ingratitude does make a free gift revocable from him that is ungrateful fol. 84 Italy was seven times brought almost to utter desolation in less then eighty years fol. 114 Justinians body of the Law was compiled at Constantinople and kept out of Italy 500 years together 118. but prevailed altogether in the East ibid. Italy when it was possessed by the Gothes and Lombards some parts of the Civil Law were in use there still fol. 119 Justinian is by somes made instrumental in suppressing the old books of the Roman Laws after his collection was finished but without just ground fol. 121 K Killing in ones own defence ought to receive no punishment 6. nor killing by chance ibid. A King by the Civil Law is no more absolved from the observation of the Law nor has any looser power over the lives liberties or goods of his subjects then by other Laws fol. 19 Kings being driven out of Rome their Laws were never in use more fol. 103 L Law what properties it ought to have and that chiefly it ought to agree with reason 1.2 seq 46. it is but a determination of the Law of Nature 4. it must not onely not cross the first and chief principles of nature but not such neither as are any way though remotely depending on them 8. to be fairly and candidly interpreted and without any fraud 13. may profitably containe the very maximes of Reason 21. common capacities no good judges of Laws 25. and who are and what must be considered to judge rightly of them ibid. the severity of them to be imputed to the demerits of men 26. though not so rational as others subjects must acquitss in them till they be altered fol. 31 Law of Nations is that which orders all affairs between Nation and Nation 59. to be known out of the Civil Law fol. 61 Laws of the twelve Tables the ground-work and foundation of the Civil Law fol. 104 Laws of all other Nations are gone and extinct with the States themselves excepting the Roman fol. 110 Laws of some people more famous then others fol. 111 Lotharius the Emperour was the restorer of the Civil Law when it was as it were extinct in Europe fol. 122 Law forreign not to be preferred before the proper Law of the Countrey fol. 125. 140. 144 Law of no Nation so sufficient but that another Law is needful fol. 128. 144. 154 Law of government proper for the state it self is necessary in every Nation fol. 129. 140 Laws of all Nations too imperfect for the multitude of cases that do happen fol. 52. 144. 145 Laws not to be measured by their abuse or execution fol. 28 Legal matters are to be judg'd by Lawyers onely fol. 25. 151 Lawyers none in forreign parts but Civilians fol. 152 Lawyers of the latter age more learned then those before them fol. 160 Two Laws in one state not inconvenient fol. 120. 154. 182 M Municipal Laws must be in every Nation 129. 140. and they to be preferred before any other Law or reason fol. 103. 125. 140. 143. 144 Municipal Laws are too short and scanty to take in all cases that do arise fol. 144 Merchants no fitting judges to trie and decide Sea causes fol. 148 Men how much they differ in their tempers and so in their actions fol. 25. 41. 53. 145 Monarchy is no looser government then any other fol. 19 Military questions to be regulated by the Civil Law In the Epistle Municipal Laws have no degrees taken nor Lectures read in them any where but in England 152. 153. all that is good in them is taken out of the Civil Law fol. 98. 164. N Nations not so abounding in all things but that they do or may stand in need one of another fol. 155 Nations abroad do mainly practise the Civil Law in matters between man and man fol. 128. 133. 159 Nations abroad are best satisfied by justice done according to the rules