their causes are be various and disagreeing From whence it happens that every day produces such accidents as though they be not wholly new yet they come accompanied with one circumstance or other that makes them differ from all that went before them Besides Nature it self brings forth some variety of contingents without any act of man All which being of several natures and differently circumstantiated from what is past or could be thought of though they do too frequently happen and intermix with the affaires of men yet to supply them with a direct peculiar Law or any other express and determinate rule to settle them is an enterprize that was never undertaken by the wisest Law-givers that have been s Legislator non potest omnia declarare quia res in quibus versatur sunt propemodùm infinitae quia in hac vita mortali nihil est perfectum propter ingenii imbecillitatem non possumus cunctae rimari Mantie de tacit ambig convent lib. 1. Tit. 15. nu 19. nor can possibly be effected by any society of men whatsoever For it cannot be understood how such things can be the subject of any established Law or rule that cannot be foreseen neither what nor when nor how they will come to pass Hae varietates infinitae nullis legibus nullis tabulis nullis Pandectis nulla librorum quantumvis immensa mole ac multitudine capiuntur sayes Bodinus t De rep lib. 6. ca. 6. These infinite varieties can in no Laws no Tables no Pandects no Books be they never so many or so voluminous be all of them contained or comprehended And again u Ibidem Non magis legibus singula contineri possunt quà m infinitum quiddam immensum ab eo quod finibus exiguis ac veluti cancellis angustissimis conclusum est sayes the same Bodinus No easier is it to collect all the several cases into one book of Laws then to comprehend that which is in greatness infinite in that which lies in a most narrow compass and is as it were in straitest bounds shut up And yet since there is a necessity of setling such various and so unlike contingencies some rational way or rule must be found out whereby to compose and settle them lest they should be made subject to meer will and pleasure or in default of better means men interested therein should be left to right themselves by forcible and violent wayes It is no less evident and manifest that whilest we have to deal with forreign States as ordinarily we do in the way of trade and commerce and too frequently in the way of War too questions and controversies without number do arise some whereof do concern reflect upon the States themselves as being of publick concernment others be of a more private nature and do concern the interest of some subjects onely But when such controversies of either kind do happen is there any Municipal Law capable to decide them should we not as much disdain to be judg'd by the Law of France or Spain when we have to do with them as they would to be over-ruled by ours when they have to do with us Nay should we not abandon the society of such a Nation that should tie us to their own Laws in matters that are transacted and done out of their proper Territorie as happily upon the open Sea or in the Territory of another Prince and people Of what force or power can a Law be to those who are not subject to the authority of those that make it w Ubi cessat jurisdictio statuemium statuti dispositio non obtinet l. fin Dig. de jutisd omn. Iudic. l. 1. Co. De susp fut And yet when we fall into their hands and controversies are moved against us in their Tribunals we must inevitably stand to and abide their justice and the like they owe to ours But then right must be done by such rules and principles as both sides may be fully satisfied in the equity of them Here therefore does appear the true use of the Civil Law and the ground whereupon all Nations have admitted it into their Courts and acts of justice For although it cannot be said that there is no case which is not contained in the Roman Law Neque leges neque senatusconsulta ita scribi possunt ut omnes casus qui quandoque inciderint comprehendantur sed sufficit ea quae plerunque accidunt contineri sayes the Civil Law it self x L. 10. Dig. De legib Neither Laws nor results of Council can be so sufficiently framed as to provide for all cases that shall happen hereafter but it may suffice if such cases be provided for as in contingency are most familiar and common yet such is the copiousness of that Law beyond any that has yet been and such a wonderful enlargement has been made thereof by the professours of it in all ages ever since as cases and accidents of all sorts and natures and in all Countreys have happened from time to time from study argument and the several resolutions of forreign Courts applied thereunto and all upon the reason and equity of that Law which was written by the Romans that now it may be justly thought no case can fall out or accident arise which the learning of that profession thus polished and perfected either in express termes or by parity of reason will not determine Wherefore it is upon just reason and likewise upon necessity too that so many Nations have recourse to the wisdome and fulness of that Law thus amplified as oft as their own particular constitutions fail them And although there are a sort of men in the world who indeed have some good natural abilities in them as a ready apprehension a quick wit a holding memory and a smooth elocution but were never brought up either in Law or any learning yet they do much presume upon that ordinary and common understanding which they have that they think or at least they would have the World believe so whereby they may be thought worthy of the best places of Judicature that they can by the strength of their poor illiterate reason resolve all questions and doubts of Law whatsoever whether they arise at Land or at Sea be they of publick concernment or of private entrenching upon our own Law or touching upon the Law of Nations be the case between Prince and people subject and stranger one State and another clear in Law or ambiguous setled by express constitution or left undecided yet their capacity as they would have it conceived without any such help as the Civil Law does suffice for all And yet when these presumptuous and high conceited men do sit to judge and administer right on such matters they quickly find what they would not before believe or at least not have believed by others that their understanding is too narrow to comprehend such difficult things and their insufficiency to be too great
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
great Student in all learning and one that seems to have searched narrowly into the state of the Civil Law as it has stood in use and request in other Countreys as well as in England in all times in his additional discourse upon Fleta wholly spent upon that subject owns the entertainment and use of the Civil Law in the Western Countreys of Europe that had left to acknowledge the Roman Empire long before For in that discourse b Ca. 6. parag 4. he hath these words Ita jam id est sub annum 1145 receptus fuit Juris Justinianaei usus ut quoties interpretandi jura sive vetera sive nova sive ratio sive analogia desideraretur aut mos aut lex expressior non reperiretur ad jus illud Justinianaeum tum veluti rationis juridicae promptuarium optimum ac ditissimum tum ut quòd legem in nondum definitis ex ratione seu analogia commodè suppleret esset recurrendum Certe ita ferme Rhodiam recepere veteres Romani legem in rebus nauticis ut etiam apud nos gentes vicinas leges recipiuntur Oleronianae cùm interim nec hae nec illae ex authoritate sui quâ primò conditae sunt vim sic obtinuerint Atque ut Academiae demùm non paucae aliae per Europam Occidentalem hac in re quoad studiorum institutionem Bononiensem Ita etiam Regna alia Respublicae imperium Caesarianum quoad usum juris ejusdem aliquem imitatae sunt retentis semper ac ubique moribus aliâs avitis legibusque sibi pro varia regiminis cujusque formula ante conditis novasque condendi tum libertate tum usu Neque ullibi pro simplici jurïs norma in Occidente inde usurpatum est jus illud Caesareum sed cum temperamentis quae jam diximus That is About the year One thousand one hundred fourty five Justinians Law came to be used in the Westerne part of Europe in such cases as either the State had made no special provision at all in them or that there was no custome to resolve them by or where in default of both the case that fell out was to be setled by right and sound reason or by some other cases that in all circumstances did resemble the matter in question or lastly where the local statutes themselves were not so clear but that they stood in need of interpretation and were so doubtfully penn'd that solid reason and a deep judgment was to be made use of to explain them In all which cases recourse was had to the Law of Justinian as to the best and richest Treasury of legal reason and equitable knowledge and which could best supply the want of a peculiar Law either with concludent reason or with parallelling the case in question with other express cases of the Law as did exactly suit therewith Much after the same sort were the Rhodian Laws embraced by the ancient Romans to regulate such matters as fell out at Sea as the Laws of Oleron have been in England and elsewhere when as notwithstanding neither the one nor the other have had such a binding power in them as they had when and where they were first ordained And as many Universities at last were guided by that of Bononia where learning after it had layen a long time neglected was first revived in setting up the teaching and reading of all kind of literature so did also other Kingdomes and Common-wealths in some measure make use of the Civil Law as the Empire did reserving to themselves such old Laws and Customes as they had proper to their several formes and wayes of government and the freedome of making new which they practised as oft as they had occasion Neither saith he has that Imperial Law been at any time since observed in the Western Countreys for a positive commanding Law but ever under the rules and limits before spoken of The same Mr Selden also in his Mare Clausum c Lib. 1. ca. 24. although he will have the Europaean Nations to practise divers things very opposite to the Civil Law as that there are no Slaves now or right of personal Postliminiage as were by the Civil Law and that goods cast away at sea do by the customes and ordinances of many Countreys accrue to the Princes themselves which by the course of the Civil Law were restored back to the owners or if they claimed not went to the first occupant yet he commends the Princes of Europe for establishing the use of the Civil Law in their Academies and in their Tribunals so far as their own peculiar statutes were not contrary thereunto I cannot also omit what Mr Selden writes in his Review upon his History of Tythes d Ca. 7. Where though he vehemently declaimes against the gross ignorance of those that do not stick to publish here in England commonly that all other States are governed onely by the Civil Law and would have such to understand the difference betwixt the use of Laws in study or argument and the governing authority of them yet he acknowledgeth that in the Empire and a good part of Itaely through the power of Emperours and Popes the authority of the Civil Law doth still continue and that in Poriugal the Roman Civil Law is authorized by an Ordinance of State in cases which are not literally comprehended in the customes or constitutions of the Kingdome And as for other Christian States which acknowledge no superiour or any subjection to the Empire as France Spain Denmark Poland the City of Venice and what also in Germany hath made it self free from the Empire though as it is Law he will not have it to binde or rule with them yet he saith in all of them the reason of it brought into method is used and applied commonly to argument when any of their customes or statutes come in question because the practisers studied it in the Universities and had thence their degrees given them And so the old Imperial Civil Law valet pro ratione non pro inducto jure pro ratione onely quantum Reges Dynastae Respublicae intra potestatis suae fines valere patiuntur that is it is of force as Reason not as an introduced Law and no farther as reason then as Kings Rulers and Common-wealths will have it to prevaile within their severall Territories And yet the same Mr Selden also saith within very few lines after that doubtless custome hath made some parts of the Imperials to be received for Law in all places where they have been studied And albeit he be very vehement in asserting that justice is administred in every State by its own peculiar Laws yet he admits also that the interpretation of those Laws in most places save England and Ireland hath of late time been much directed by the reason of the Imperials and onely by the reason of them and not by their authority and that also in case where they are
of government did belong to the trial and determination of the Civil Law should be kept within the same cognisance still these alterations notwithstanding First because for many hundreds of years that and no other his been the standing approved and practised Law in those matters and therefore in that regard to be preferred before any new Law though better if such a one could possibly be found Secondly because if it should be laid aside it would be so impossible to finde a better that we should find no Law or rule at all to put in the room thereof that would be able to decide them with any tolerable discretion or knowledge The professours of the Municipal Law must acknowledge that their Book cases the onely learning of their Law must needs here fail them when not any of those matters were ever judg'd or tried before them Where then would the Law or rule be found And surely from that we have before said it were very inconvenient to commit the triall of them to such as have neither Law or knowledge proper for the determination of them Thirdly because thereby so eminent and so useful a profession might be kept up which else to the great dishonour and dammage of this Nation must irrecoverably fall and be quite extinct Fourthly because if these things were suffered to go on in their accustomed way it would make this great change of State to be the less which in all alterations is to be wished and sought after Fifthly because there was nothing in the nature of those causes to tie them to the former government onely but that they may be tried under the name and authority of the present government and yet as much according to the course of the Civil Law as they were before for indeed the Civil Law is fitted to act under any government It can serve the Church as well as the State the Popular government as well as the Regall and the Aristocratical as well as either as we shall clearly find if we look into the States abroad as France Spain the Empire the Territories of the Church of Rome the States of the Low Countreys the States of Italy the State of Venice whose differing in point of government does not hinder but that the Civil Law is used and practised in them all The reason whereof is because it meddles not with matters of government at all but was originally made to order the private affairs of the people and to judge the matter of right between party and party onely as may appear by the very state and purport of the Laws themselves which are as answers made to questions onely concerning matters of private right and interest as they did arise from time to time during the long continuance of the Roman Empire Besides the Romans themselves after they had expulsed their Kings saw several kindes of government and yet the Civil Law served under them all And if it did not stand indifferent in this point of government so many Princes and States herein very much disagreeing would not so freely admit it into their Territories as they do for can we think that they would consent to the admittance of any thing that might endanger their government So that it is clear the change of government that has been amongst us does not at all hinder but that as long as the same causes as well Maritime as others do remain and must necessarily have a Trial the Civil Law that tried them before is the fittest Law to try them still It is of as little force and moment and ought to hinder no more which is objected That the Civil Law is a forreign Law not ordained by the Legislative power and authority of this Nation and therefore very inconvenient it may seem that matters arising here should be ordered by any other Law then which is of our own making or that we should be made to submit to any other Besides to have two Laws tolerated in one State may cause great distraction and uncertainty amongst the people who may under several pretences be troubled and convented under both for one and the same thing Further the entertaining of the Civil Law may in time be a means to supplant and undermine the Municipal Law and customes of this Nation For as to its being a forreign Law what is it more in that then the Laws of the Saxons Danes and Normans of the which our English Antiquaries Cambden a Britann fo 153. Spelman b Glossar verb. lex Anglorum Cowell c Interpr verb. Law and Selden d Notes upon Fortescue ca. 17. in princ all take notice that the Laws of this Nation are but a mixture and composition And yet it is not such a stranger amongst us neither as may be conceived for not onely Antiquity will tell us that when the Romans were possessed of this Nation and during the continuance of their government and power here which was no less then 500 years all the affairs of this Nation were ordered and carried on by the Roman Civil Law and had no Law to assist much less to check it in all that time e Cambdens Britan. fo 63. Seldens Dissertat ad Flet. ca. 4. But also if we look no further back then twenty years ago we shall remember the Civil Law did so far spread it self up and down this Nation that there was not any one County which had not some part of the government thereof managed and exercised by one or more of that profession besides the great employment and practise it had in the Courts in London So that it being thus incorporated and as I may say naturalized by our selves into this Common-wealth it ought not to be reputed or look'd upon by us a stranger any longer Besides right reason from what hand soever it comes presented ought to be embraced by us f Rationabile dictum debet ita movere judicem ed judicandum sicut ipsa lex Quia lex est omne quod ratione consistit Itaque sufficit allegare naturalem rationem licet quis legem non alleget Jas in l. 19. Co. De collat nu 10. and is authority enough to it self to carry the understanding judgment will and affections of all men though it be not put into a Law g Imberillitas est humani intellectus in quacunque causa legem quaerere ubi rationem naturalem inveneris Bald. in l. scire oporiet parag sufficit Dig. De excus Tut. But when besides its own commanding power and vertue it comes withall recommended by such a wise State as the Roman was and framed into a Law by them and has since been allowed of by other Nations also as conforming with the general reason of Man surely it ought not to be lookt upon as strange and forreign unto us or to our affairs carrying about as the same reason and dealing in the same matters that they did meerly because we did not promulgate and enact
the same Moreover if we will deal in forreign affairs and lanch forth into the wide Ocean and converse with forreign people and have to do with shipping negotiation and traffick without which so populous are we grown we are not able so much as to subsist or live or if we would be enabled to stand upon our own defence against a Nation that shall assault us by a war or revenge unsufferable injuries done us by making war upon them we must not then stand upon our own Legislative authority to which other Princes and people will not be obliged h Consuetudines vel statuta sunt localia fie non obligant nisi subditos Gail obs lib 2. obs 124. nu 5. but we must be contented to stand and submit our selves to such a Law how forreign soever as is proper for those very matters and to which other Nations do refer themselves which is the Civil Law that Nature has breathed out it self in and Nations have consented unto And if it be so necessary for the carrying on of forreign affairs that they cannot be transacted without it this shews a necessity of admitting of it also in the agitation of certain matters and causes at home and amongst our selves for the more ample reward and encouragement of that profession which can never be maintained or upheld by the transaction of forreign affairs onely which is not desired neither in any greater latitude or measure then has been alwayes allowed it heretofore and where the common-Common-Law has never known to intermeddle and in which if the Civil Law should not be used questions and differences would arise and there would be no Law or Rule found to settle them which would be a very pernicious thing So that be the authority of the Civil Law forreign which it cannot be except it were imposed upon us by some other Nation or people or be it that it were of no authority at all but what the necessary assent of our own natural reason and the consent of Nations gives it yet it were strange that we should rather chuse to have no Law at all in those matters then to receive or entertain the same for a help to direct our judgments in them It being then so necessary a Law that but by the knowledg and conduct thereof forreign affairs cannot possibly be carried on and there would be a manifest failer of justice in other matters at home without it the supposed inconvenience of having two Laws in one and the same Nation so much urged against it will appear to be a very slender and inconsiderable thing for how can that inconvenience hurt us more then it does other Nations that have Municipal Laws of their own and yet do keep the Civil Law too Besides it is so far from being an inconvenience that it is both a benefit and an honour to a people to abound in justice and to have it rather supplied by two Laws then to fail in the doing thereof by having but one And though where there be two Laws and two distinct professions of them in one State if the matters and causes whereof they are severally allowed the cognizance be not certainly assigned to each that the one may not enterfire with the other there may arise a confusion of jurisdictions and the subject will be uncertain whither to goe for justice and may be in danger to be molested by both Courts for one and the same thing which were an intollerable mischief i Gravius privatorum damno peccatur eùm inter summos magistratus curiasve majores de imperio certatur Bodin de rep lib. 3. ca. 6. Yet the Courts of the Civil Law have alwayes had their limits particularly prescribed them and the causes within their cognisance punctually set down and if they hold plea of any thing else there is a known remedy to be had to stop them by bringing prohibitions from the Common-Law which are never so soon ask'd as granted But if the Common-Law Courts shall draw to their examination such matters as do properly belong to the Civil as they have done too often or do prohibit the Civil from proceeding where they know they can do no right nor give any relief themselves as in the business of allotting portions amongst the deceaseds kindred which they never did nor can do nor will suffer the Civil Law Courts to do it neither this an heavy vexation but the blame must lie upon them But to be sure whilest there is such a correcting hand over the Courts of the Civil Law there is little ground of fear that they can trouble or molest the people further then their just power does authorise them Which may be sufficient also to remove the jealousies of those that fear if the Civil should be admitted it may in time supplant and undermine the Municipal Law of this Nation For it were a vain attempt for subordinate Courts to go about to shake the standing of that Law to whose check and controule they lie continually subject And if in forreign Nations that have their Municipal Laws all of them but no profession nor Lawyers nor Judges but of the Civil Law onely there is not any found so bold and presumptuous that dares at any time to set up the Civil Law above the particular Law or Custome of the place though opportunities to do it are not wanting but that the particular Law or Custome if any be in the case does prevail and has the praeeminence alwayes surely then the Municipal Law and customes of England are much more secure from being invaded and incroched upon when not onely the Law is distinct but there is a distinct profession thereof also from the Civil Law that bears a watchfull eye towards its own greatness and which is more that has a controuling power and as it were a sovereignty over the other Besides the very principles of the Civil Law do run clean counter to any such design it being an express Maxime in that Law That the Municipal Law and custome of any State for what concerns those that are subject to it ought to be preferr'd before any more Universal Law that is to the contrary Lex Municipalis sive consuetudo juri communi derogat k Gail obs lib. 2. obs 124. nu 2. Lex cujusque loci inspicienda est sive scripta sit sive non l Gl. in l. 5. parag 1. Dig. De jur immunit verb. legem Tam in decidendis litigantium controversiis is qui jurisdictioni praeest consuetudines loci in quo contractum est observare debet quà m in delictorum punitione ejus loci consuetudinem in quo peccatum est sequi tenetur l. si sundus Dig. de evict Doct. in l. cunctos Co. De summ Trinit And as I have said before often so I must inculcate it here still The Civil Law where ever it is admitted it comes without the least prejudice to any either Law custome or government nor alters any
and Common-wealths amongst so many thousands of different persons and of different humours there are many so exorbitant and turbulent that no Wit nor power of Man can be able fairely to tame or temper them The Lawes therefore must be fitted to all such publick accidents providing sharp remedies for Diseases that are acute and desperate neither must they tender the private right or safety of a few if their detriment or mischiefe may secure the whole In these cases Legum convenientiam aptitudinem semper expetimus non semper aequitatem The extremities of a Nation must be provided for by fitting and convenient meanes though the exactnesse of Right and Justice seems to be infringed for herein the Common wealth is like unto a Ship in a storm at Sea where the Master may cast over board what private mans goods he will to lighten the Ship and to preserve the whole So where an enemy with an Hostile intent is coming against a great City the City may demolish or set on fire the Suburbs rather then permit the enemy to harbour there thereby to annoy and endanger the whole City The like must the establishments of Law be that are directed to a publick end they must aime to procure the common welfare without any respect to private right or imaginary reason But in such Lawes as are purposely made to defend every mans private interest and to pacifie contentions and quarrels arising thereupon and where the publick is not concerned it not onely may but ought to be otherwise They must hold forth Nature Equity Reason and a sound judgement so as to command every judicious mans assent and approbation and even they that are cast may not complain murmure or dispute the same And in the same manner has Wesenbeck in his Paratitles upon the Digests a Tit. de Just Jur. nu 14. differenced these two sorts of Laws Jus privatum saith he quiae in reddendo cuique quod suum est versatur eò ad normam aequalitatis justitiae congruat oportet sed jus publicum non totum ad normam aequitatis vel aequalitatis ut jura privatorum sed ad id quod reip est opportunum praecipue aptatur The Law that is made for the use of each subject against another because the office of it is to give to every one his own it must measure it out by the precise rule of equality and justice But the Law that is made to order the generall welfare of the whole State is not tyed to any such rule of equity but is such as the advantages and exigencies of State require In all private affaires therefore that happen between party and party wherein there is no mixture of State-interest at all and which come to be determined by a Law we require that the rules by which such Controversies are appointed to be decided have not in circumstances for they may be arbitrary and according to meer will but in substance so sure a ground in Reason and common Equity for the most part as either to be consonant to the dictates of Nature or obvious to vulgar understandings or at least discernable by the wisest and most judicious of men acquainted with the principles of Law and the rules of Right and Justice Neither is it the bare reason of the wisest if it be such as is floating in the brain onely that will here suffice but it must be committed to writing and have such an authority to own it as is authenticall and currant amongst the greatest and best disciplined Nations also which kind of reason thus authorized especially in any ample measure is to be looked for and found onely in the Civill Law b Ratio naturalis secundum hominum captum quandoque variat multi non tam ratione ill quà m phantasia aguntur Leges autem latae à sapientissimis viris judicie omnis scculi approbatae certè cam rationem tenens Alb. Gentil de ju bel lib. 1. c. 1. CHAP. V. That the Customes of a Nation ought in like manner to agree with Reason ANd here I am not unmindfull that besides written Lawes and constitutions there are belonging to every Nation Customes and usages unwritten which have as great an over-ruling power upon the persons and rights of the people after they have been generally allowed and that their observation hath been constant and un-interrupted for a long time together And therefore sayes Modestinus a L. 40 Dig. de Leg. b Omne jus aut consensus fecit aut necessitas constituit aut firmavit consuetudo All Law proceeds either from consent necessity or custome Neither is it rare but common to find in every Nation such usages as doe intermixe themselves with the acts of Justice and the rights of the people and yet they have by long continuance so worn out their Originall that no rationall account can be given of them nor no ground in reason rendred by those that use them and yet they will not stick to sacrifice their most precious enjoyments to preserve them nor will admit of a change of them upon any pretence of greater advantages whatsoever The reason hereof lyes in the affection which the people are apt to bear towards that of which themselves are the Authors Customes being first brought in and consented to by them but Lawes are imposed on them by their Princes whether they will or no. Consuetudines sayes b Rer. Judic l. 3. s. 1. Anaeus Robertus subditis neque graves sunt neque odiosae sed leges istae municipibus videri solent supra caetoras omnes acceptissimae cùm toler abilius sit consuetudinis vinculo quà m legum necessitate astringi Quà m dulce quà m gratum est volun ariae subjicii necessitati illo juris vinculo astringi cujus cùm authores simus puderet iniquitatem aut severitatem accusare At regia edicta non ratio sed sola dominantis voluntas justs sit an injusta sancit moderatur Customes are neither burthensome nor unpleasing to the people but above all other kindes of Law seem most acceptable since it is more tolerable to be tied to Custome than to an imposed Law How sweet and pleasing is it to be subject to a necessity of ones own making and to be bound by such a Law which when we have made our selves we cannot for shame complain that it is either unjust or rigorous But the Edicts of Princes flow not from reason but from meer will without respect either to right or wrong Besides though the reason of some Customes be not now discerned yet it cannot be supposed but when they were first admitted by the people they tended to their common good For Quoties de jure populi agitur apud populum cui mutare cui abrogare cui ferre quas velit leges accipere quas velit rogationes liceat nunquam se ipse diminuet They will never prejudice their owne rights by any Custome or Law which
liveth for as a Civil Law being the act of a whole body politick doth therefore over-rule each severall part of the same body so there is no reason that any one Common-wealth of it selfe should to the prejudice of another annihilate that whereupon the whole world hath agreed for which cause the Lacedaemonians forbidding all accesse of strangers into their Coasts are in that respect both by i Lib 2. Cont. Appion Josephus and k Lib. 9. de sanand Graec. affect Theodoret deservedly blamed as being enemies to that hospitality which for common humanities sake all the Nations on earth should embrace And the Roman Civil Law is of singular use to teach and instruct in this Law too Grotius the Ornament of his Age and Nation for learning and wisdome undertaking in his most singular Book De juri belli Pacis to set down the severall heads of that Law which serves to direct those great transactions of Peace and Warre between Nation and Nation and to reconcile their differences professes to have borrowed towards the perfecting of that admirable worke much from the Books of the Civil Law because saith he l In Prolegom Rationes saepe optimas suppeditant ad demonstrandum id quod juris est naturae eidem juri neque minus gentium juri testimonium saepe praebent They often make very clear discoveries of what is the Law of Nature and doe give frequent instances both of that and of the Law of Nations also And indeed the Law of Nations is no more then that naturall Reason which Nations doe owe and are bound to render each to other whilst they correspond and act together be it in Peace or Warre and but the very same which private men ought to practice amongst themselves in their private dealings Which moved Mt. Hobbs m Lib. de Civ cap. 14. art 4. when for illustration sake he divided the Naturall Law in naturalem hominum naturalem civitatum into that of private Men and that of Nations to adde that praeoepta utriusque eadem sunt sed quia civitates semel institutae induunt proprietates hominum personales n L 76. Dig. de Judic l. 56. dig de Usufrust Popule respectu tetius generis humant privatorum locum obtinent Gâ—ot Mare lib. c. â— lex quam loquentes de hominum singulorum officio naturalem dieimus applicata totis civitalibus nationibus five gentibus vocatur jus Gentium The precepts of both are but one and the same but saith he because severall Common-wealths once setled are but as so many private men the same Law which in reference to single men we terme Naturall being applyed to whole States Nations and people is call'd the Law of Nations their duties being indeed both alike for what one man ought to render to another the same ought one Nation to render to another also So that although what ever we read of in the Text of the Civil Law was not intended by the Roman Legislators to reach or direct beyong the bounds of the Roman Empire neither could they prescribe any Law to other Nations which were in no subjection to them and even those Lawes that doe treat of Military matters Prisoners of Warre Embassies and such like doe but direct what Order Discipline shall be kept among their own Souldiers and how if any of them be taken by the Enemy they forfeit the right of Citizens for the time of their captivity but shall upon returne be restored and how free from being Sued or molested Embassadours that come from their own Provinces not from forreigne States to Rome should be and so all those constitutions and such like have still looked homewards and no further as o Lib 1. de jur Bill cap. 1. Albericus Gentilis has truly observed Yet since there is such a strong stream of Natural Reason continually flowing in the Channell of the Roman Lawes and that there is no affaire or businesse known to any part of the World now which the Roman Empire dealt not in before and their Justice still provided p A Romanis ad omnes populos Juris faecialis totiusque justitiae fontes purissimi manarunt Bodin de rep lib. 5. cap 6. for what should hinder but that the nature of affaires being the same the same generall rule of Justice and dictates of Reason may be as fitly accommodated to forreigners dealing with one another as it is clear they have been by the Civilians of all ages as to those of one and the same Nation when one common Reason is a guide and a light to them both for it is not the Persons but the Case and the Reason therein that is considerable altogether How came the old Law given to the Jewes to be in some measure obligatory to the Christians coming so long after and to be of force still and will be as long as the World endures but because besides the ceremoniall and judiciall part thereof which was observable by the Jewes onely and is now abrogated in as much as it had but a temporary cause of Gods ordaining it there was also a Naturall and a Morall part incorporated in it which all Nations and Men are bound to fulfill and keep and can never cease Haec pars legis vivit sayes q De Legib lib 9. cap. 11. nu 22. Suarez non tamen quia legis Moysis pars sed quia naturae lex est novae legis pars vivetque in sempiternum This part of the Law remains in force but not because it was a part of Moses his Law but because it was given first by Nature and the new Law has since confirmed it and the authority thereof shall remaine for ever So and in like manner there is in the Roman Civil Law a circumstantiall and a positive part which was a Law to the Romans and by them to be obeyed but neither of force or use to others being made for that people climate and government onely But there is in it too a Law whereunto by the light of Reason men find themselves bound in that they are Men a Law by composition for multitudes and politick societies of Men to be guided by a Law that may be applyed to the communion and fellowship of all Mankind or divers Nations linked in amity and friendship together and this part of the Law is naturall perpetuall belonging not to the Romans onely but to all Nations and Men neither can it have any cause of change when that which gave it its first institution remaineth for ever one and the same Yet as the Civil Law is Roman it is of no validity but as it is naturall only for as it was Roman it extended not beyond the bounds of the Roman Empire nor did it take care for any other People or Nation but the Roman onely nor could the commanding power thereof endure longer then the Empire it selfe lasted But when it treats and discusses such matters as are
common to all mankind and not onely the Roman Nation did but all Nations and People doe still deal in as of contracts of all kindes both at Land and at Sea dispositions testamentary succssions in deceaseds Estates where no Will is made good offices done at anothers charge or detriment of the relations between Father and Son Husband and Wife Master and Servant Governours and Governed Magistrates supreme and subordinate of matters of property and possession injuries done to the persons or scandalls to the credit or dammages done to the goods of Men of servitudes due from Houses or Lands to other Houses Lands or Persons Crimes and Offences of all sorts and the punishments greater or lesser that attend them explanation of Lawes or Statutes or of any obscure clause in any Contract Speech or Writing whatsoever of Customes and other publick duties payable to the Exchequer Authorities Powers or Commissions granted to others Deeds of free gift Writings obligatory Instruments Pattents Charters priviledges in Writing or by prescription Customes and prescriptions to take away or diminish the right and property of others of reparations upon fraud non-age absence or other impediments unavoidable and necessary Nusances done in publick places or High-wayes or from one House to another obstructions in Rivers or Water-courses Mortgages in Law as well as Fact of goods lost in Ships Taverns Inns or delivered to Carriers to convey to other places or left with other Men to keep services due to the Common-wealth patrimoniall personall and mixt Souldiers and the exemptions and discipline belonging to them Of judiciall Tryalls in all these cases and many more where the quality of the Judge his kind of Jurisdiction the manner of Tryall the Officers assisting the kind of Evidence the Judgement the Execution thereof or remedy by way of Appeale come to be considered I say when the consideration of these severall matters is as incident to all other Nations and times that live under Order and Government as it was to the Roman and that there be delivered and laid down in the Roman Civil Law such rules and dictates as are most naturall essentiall and necessary to be observed in each of them it must needs be that the use of the Roman Civil Law in these particulars as to the matter of it can neither be locall nor temporary neither be limited to that Empire nor determine with it but must be of use every where and for so long time as the businesse to which those rules are applyed comes to be acted and dealt in which will be as long as the World it selfe endures and untill men leave to traffique and converse with one another Now as in the matters before specified the difference that arises may be sometimes between the publike and some private person sometimes between one private man and another within the same Nation so it may be also between a subject and a stranger or between strangers only or between Nation and Nation and yet the same measure of justice will hold and serve for all For look what justice may be rightly afforded between one man and another upon the generall rule of naturall equity and right reason the same may as warrantably be dispensed between one Nation and another as oft as any variance happens between them And hence it is that all those Writers that handle and treat of those controversiall things which frequently come to be disputed between one Nation and another as they are all Civilians so though they doe make use of other authorities besides yet the strongest and most convincing arguments that they bring to resolve them by are fetcht from the generall rules of Equity and right Reason set down in the Civil Law And were it not for them we had no certainty to rest upon nor any peaceable determination could be made of such controversies but the sharpest Sword must be drawn out to cut the knot asunder For what can Histories and the examples drawn from them doe towards a composure Errant qui quod exemplo fit id etiam jure fieri putant sayes r De ju offic Bellic lib. 1. ca. 2 Ayala out of Cicero It is an errour in any to think that what has once been done may therefore be lawfully done againe The force of example is weak and insufficient Sana ratio exemplis anteponitur sayes s De ju Bell. lib. 2. ca. 18. Albericus Gentilis Sound reason is far above examples Besides the integrity and truth of Histories is questionable Saepe tempori saepe affectibus serviunt and they too too often afford examples contrary each to other And moreover by as it were a generall consent of Nations there is an appealing to and a resting in the voice and judgement of the Civil Law in these cases between Nation and Nation The reason whereof is because any thing that is irrationall unnatural absurd partial injust immodest ignoble treacherous or unfaithfull that Law abhorreth and for that it is the most perfect image and representation of Nature and of the Equity and Reason Nature prescribes to humane actions that was ever yet presented or set forth to the World in a Law And therefore whosoever will observe the style of the Imperiall Law he shall find it least of all to run in this strain Sancimus Mandamus praecipimus jubemus imperamus volumus We decree command will enjoyn enact or in the like imperious and commanding way but most in a gentle soft rationall and a convincing way thus Non est aequum Nulla juris ratio aut aequitaetis benignitas patitur Bona fides non patitur Divinè admodum Non est dubium Nimis grave est Non sine ratione Nihil tam naturale Naturalem habet intellectum Dolo facit Absurdum est Contra bonos more 's est Cùm satis inhumanum est Cùm nulla ratio sit Humanitatis ac religionis Ratio Humanitatis intuitu Humanum esse probamus Ita nobis cordi pudor est Indignum est Iniquissimum est Cùm ratio naturalis A plerisque prudentum generaliter definitum est Improbum quidem criminosum Periniquum est Aequissimum visum est Aequissimum putavit Praetor Boni viri arbitratu Juxta arbitrium boni viri Hic titulus aequitatem habet naturalem Hoc edictum summam habet aequitatem sine cujusquam indignatione justa Vt moderatae rationis temperamenta defiderant Nec verecundiae nec dignitati convenit Nemo est qui nesciat and the like as if nothing were offered for a Law but what is evident in it selfe and all men must own and presently apprehend to be just and equall There was never any Law more agreeable to the Divine and to the rules of Conscience and exact righteousnesse then that Law Tertullian in his Apologetick against the Romans did acknowledg Eorum leges ad innocentiam pergere de divina lege ut antiquiore ferme mutuatas that their Laws did walk in the way to innocence and
were almost the same with the Divine Law Philip Melancthon another Divine and a Protestant sayes that and more Ad normam effictam in mentibus humanis Decalogi voce declaratam atque illustratam congruunt humanae leges quae citra controversiam post Mosaicas caeteris ut antiquitate sic dignitate ut auctoritate sic veritatis certitudine ut rationum demonstrationum evidentia sic ordinis praestantia antecellunt The Roman Lawes saith he are made after the likenesse of the Decalogue and do not differ from those notions and principles of Reason which Nature hath implanted in all men And it is out of all question that setting aside Gods Law they are as more ancient so more renowned as of higher authority so truer and clearer in determination as of a more evident demonstration and reason so of a more excellent rank then other Laws that yet have been Which conformity and likenesse of the Civil Law to the Divine and Eternall has been the onely cause that the Casuists and Divines that have treated upon cases of Conscience and have laboured to teach men what rules they must walk by to doe justice and to execute righteousnesse in their dealings and communications with one another they doe every where about their books and writings propose set down the very rules and maxims of the Civil Law as the best lessons of morality justice citing the very Lawes themselves and the authorities of that profession which were incongruous and vain for them to doe were not their justice equity and soundnesse unquestionable and their authority beyond all dispute even in those things for which their authority is brought by them Neither is it they alone that set this high estimate upon the authority of the Civil Law since the Learned in other faculties doe the same with whom there is nothing more frequent then when the duties of men one towards another in their severall relations come to be set forth as between Parents and Children Masters and Servants Husband and Wife Sovereign and Subject Magistrates and private Men Captain and Souldiers one Citizen with another or when the best rules and advantages are to be laid down for the first founding of a Common-wealth or the keeping of it in safety and splendour or when the justice and convenience of a Law is in question or the actions of Men even of Princes themselves be to be approved or condemned In all these cases and the like nothing I say is more usuall with Writers of highest renown for Learning and wisdome then to fort fie their resolutions and dictates one way or other with the practice and discipline of the Roman State and to make the Civil Law their Touch-stone to try all things by and the best and most approved ballance to weigh them in judging the authority thereof to be beyond deniall in any thing that it does either defend or disallow and for such as it is presented does it passe currant with all men The Civil Law requires that an act should be worthy and laudable as well as lawfull that it should be faire equitable ingenuous and candid as well as strictly just Subtilties and niceties of words and those apices juris finesses of Law and fine-spun webs of Wit which are opposite to integrity and honest dealing and which through a precise form of words and strict propriety of speech would frustrate what was purely at first intended it will not allow of or endure Bonae fidei non congruit de apicibus juris disputare says Vlpian t l. 29. Paragt 4. Dig Mandat It suits not with sincerity to contend about curiosities Sensum non vana nominum vocabula amplecti oportet u l. 2. Co De constipecun The true intended sense and not the bare litteral signification is to be pursued Scriptum sequi calumniatoris est boni verò judicis voluntatem scriptoris autoritatemque defendere says Gail x Lib 2. obs 132. out of Cicer pro Caetinu It is the part of a Caviller to keep close to words but of an upright Judge to uphold the intent and meaning of him that spake them Qui pertinaciter à scripto recedere non vult perniciosè errat sayes Peckius y Ga 88. De reg ju in 6. in in prine He shall offend perniciously that will grant but what the very words will bear and will be got to yield no further And therefore the Civil Law which we have now had it been in being in the third Punick War when the City of Carthage by a crafty exposition of words was quite demolished by order of the Roman Senate after they had first given their faith to the Carthaginians in these expressions Civitatem Carthaginis salvam fore jura privilegia immunitates easdem habituros quibus antea semper usi fuissent The City of Carthage should be saved and the same rights immunities and priviledges should be continued unto them which they always had would have condemn'd the whole Senate for such their breach of faith and treachery though there was not the life of any person touch'd For who could doubt but that the Carthaginians articling for the safety of the City did aim and intend to have the place preserved as well as the persons And it was a shameful defence to say as the Romans did that when the people of the City were all preserved and kept alive the true City was saved which was as much as they promised though the walls and buildings themselves were destroyed Civitatem maenibus urbis minimè contineri The word City does import the Men and not the Structure or Edifices thereof For although in strict propriety of speech there is that nice difference inter urbam civitatem quòd urbs aedificia Civitas incolae sint yet legulciorum est syllabas apices aucupari non militaris simplicitatis sayes Albericus Gentilis z De jur Bell lib 2. ca. 4. It is for Lawyers to catch at words and not for Souldiers whose plain meaning admits not of such nice distinctions In fide quid senseris non quid dixeris cogitandum est says Grotius a De ju Bâ—ll lib 2. ca 16. nu 1 out of Tully Where faith is given what was meant is to be regarded rather then what was spoken The Plataeans were as false and unworthy when after they had promised to send home the Prisoners taken slew them first and so sent them home dead quasi cadavera essent captivi mortuus homo esset homo says Albericus Gentilis b d. ca 4. as if it were to be believed that the Carkases were the Prisoners themselves or a man dead could be thought a man And as deceitful were the Baeotians too who having ingaged to restore the City did deliver it up not standing but rased and pull'd down So was it an act most treacherous and false in Alexander who first gave a besieged Town an Assurance that they
in their gallant and heroick minds they bore did propose to themselves no other end but their temporal honour and earthly greatness not once thinking of doing honour to the great God nor looking towards any heavenly felicity that might follow after this life ended having not yet been taught or heard of any such thing yet it must be acknowledg'd that the effects which have flowed from their desire of glory and rule have been singular and admirable amongst which their just rational and honest Laws do deserve to make their memory still famous amongst men because so much use has been made thereof ever since in the governing of so many States Empires and people And well did some of the ancient Fathers of the Church as also some of our later Divines observe that without doubt God did therefore indue the Romans with such admirable skill in government and Law making that after Nations might have a good example to follow It is St Austins judgment i Lib. 5. De civitat Dei ca. 6. That the Roman Empire had that glorious increase not onely to be a fit guerdon to the vertues of such as bore rule there but also that the Citizens of heaven in their pilgrimages upon earth might seriously and attentively fix their eyes upon those examples And before him Tully as Lnd. Vives hath cited him k Lib. de caus corrupt art being to draw a Model of a Common-wealth and Laws to govern it withall sets before his eyes no other pattern but that of the Romans to which in his judgment all people should in prudence shape and conform themselves And that our Saviour Christ himself God Almighty from all eternity so disposing it should be born under the government of the Roman Empire and submit to it too may it not more then probably be inferred that it was Gods secret intent and purpose if not to bring all Christians under subjection to those very Laws under which their head was born and lived yet at least by that signal act of his to recommend that policy and government to their imitation which might be a means to propagate the Gospel of Christ to send it forth to the whole world which that Empire seemed wholly to command St Austin l Lib. 18. de civit Dei ca. 22. makes the Universal rule of the Romans a special design of God for the good of mankind Per populum Romanum placuit Deo terrarum orbem debellare ut in unam societatem reipublicae legumque perductum longè lateque pacaret It was therefore saith he Gods pleasure that the Romans should conquer and command the whole earth that being brought under one communion of government and form of Laws it might the better enjoy peace both far and wide Videtur Dominus Monarchiall Romanorum conservasse propâ—gasse ut simul propagaretur honesta eorum Politia reprimeretur incondita barbaries aliarum gentium sayes Baldwine m In his Prolegom Therefore was the Roman Empire by Gods permission so far extended that their good government might spread the more and the conversation of barbarous and wild Nations be made civil And indeed the continuance of it in such diversity of governments as Kings Consuls Tribunes Dictators Emperours cannot but shew a Divine power and a most prudent managery of affairs there in all vicissitudes For otherwise so many changes might in all likelihood have bred confusion and so consequently suppressed their rising to so great an Empire which as the last so it may be truly stiled the greatest that yet the world ever knew or heard of Thus therefore the Roman Empire having climb'd up to such an height of Soveraignty as to be a spectacle an astonishment to all other Nations n Romani trium pulcherr â—imarum virtutum justitiae inquam fortitudinâ—s ac prudentiae laudibus imperatoriisque artibus cumulaeti populos omnes in sui admirationem converteruâ—s Bodinde rep lib. 5. ca. 6. and their government being generally proposed and look'd upon as a pattern and by some judgments designed as an example by God himself for other States to follow and be directed by What does it witness less then that the Laws of such a Nation and government must needs be singular and incomparable CHAP. II. The fundamentals of the Roman Civil Law were fetch'd from other States which did then excel others most in Policy and Government THe first grounds and foundations of the Civil Law were not of the Romans own composing but were fetch'd from other Nations and those the best governed that were in being for when they had cast off Kingly government and put themselves into the form of a Common-wealth they would no longer endure the Laws that their Kings had made partly because they would not suffer any memory of their power to remaine and partly because the setting up of a new government would require necessarily the making also of new Laws which might correspond therewith Therefore since a present supply of Laws was necessary arbitrary rule being intolerable and that to frame a body of Laws themselves in a short time was impossible and not by a new-born State to be effected they appointed three eminent men to go to Athens and other Graecian Cities which had been famous for rule and administration of justice above others to fetch from thence the choicest Laws they could find At the return of those three men the Consuls that had bore the sway were deposed and both their Authority and Ensigns given unto ten men newly elected for the government of the State and were thence called Decemviri whose office it was to select the best of these Laws and by them precisely to rule and do justice to all the people The Laws that they chose and best approved of were written at first in ten Tables of Brass to which two Tables more being added afterwards they were all set up together in the open Market-place to be seen and read by the people which ever after were distinguished by the name of Leges 12 Tabularum The Laws of the 12 Tables To the direction of these Laws the Roman people were subject and conformed themselves for a long time and they were the onely Law they had Of the which Tully o Lib. 1. De Orat. gives this high testimony that this one book of these Laws both for usefulness and wisdome did transcend all the books that all the Philosophers of the world had written And although their engravement in brass could not preserve them from the injury of time nor rescue them from that universal change that altered all things in the Roman Empire whereby it came to pass that some reliques onely of them are now extant to the lamentation of all the learned Yet the Historians without any disagreeing tell us that the rise and beginning of all the Civil Law that we have in the books of Justinian came from those Laws Thus Livie Tacitus Sigonius and Rosinus And no less is delivered
Justinians frame and Collection were found at Ravenna about the same time These books were no sooner pull'd as it were out of the dust but by the same Emperours command they were every where divulged taught in Schools and Universities up and down the Empire the barbarous Laws as it were silenced and these in practise made the rule for all Tribunals And indeed the fame and reputation of them so spread all kind of learning reviving with it at the same time that in a little space of time it got footing also with the other sciences in France Spain and Italy and in all the Western part of Europe where it has been in greatest use and highest account as well in studies as in Judicatories ever since to this very age of ours Nay the Civil Law after it was once restored and taken notice of having long lain hid and concealed drew the hearts and studies of men after it in such wonderful manner and grew to that mighty eminence and power that the most were intent upon the study of it and but few in comparison lookt after any other learning Giraldus of Oxford charges it as a fault upon the students of his time and tells that one Martin a Clergy-man did sharply reprove the University of Oxford at a publick congregation for devoting themselves wholly to that study neglecting all other learning saying quòd leges Imperiales reliqua scientias omnes suffecaverant the Imperiall Laws had swallowed up all the other Sciences Also Daniel Morlaes in the same Century being in Henry the seconds time writes that the Law was so much studied in Oxford quòd pro Titio Seio Aristoteles Plato penitus oblivioni traderentur that Titius and Seius were minded altogether and Aristotle and Plato were quite forgotten And Roger Bacon that had made himself eminent in all the sciences did upbraid the Bishops of the same age for minding Divinity so little adding quòd cavillationes juris defaedarent Philophiam the sophistry of the Law would corrupt the true Philosophy Stephen Langton Arch-Bishop of Canterbury took up the same complaint in Henry the thirds time against the Monks of his time qui relicto agro veri Booz nempe sacra Scriptura ad alium agrum id est scientiam secularem pro cupiditate terrena transirent who through greediness of filthy lucre which was then to be gotten chiefest from the Law did forsake the knowledge of the Scriptures and hunt after secular knowledge The like lamentation was made by Robert Holcot of the order of the Praedicants in Northampton-shire in Edward the thirds time leges canones saith he istis temporibus innumerabiliter sunt foecundae concipiunt divitias pariunt dignitates ad illas confluunt quasi tota multitudo scholarum his diebus The Laws and Canons are immeasurably profitable in these times riches and honours spring from thence almost the whole number of Scholars resort thither for indeed the greatest professours in Theologie that were did so little content themselves with that one way of advancement that they did frequently assume degrees in Law to fit and qualifie them for other preferments also But sure it is these complaints and objurgations of private men could so little keep this luxuriant growth of the Law from spreading that the very Edicts and Decrees of Princes could not bring it down Matthew Paris in his History upon the year 1254 and in the Additions pag. 883. Edit Noviss makes mention of a constitution made and published by Pope Innocent the fourth by which it was ordained that no professour of the Laws should be promoted to any Ecclesiastical dignity in France England Scotland Spain and Hungarie and that from thenceforward the Imperial Laws should not be read in those dominions if the Kings and Princes so thought fit Pope Honorius the third forbad the reading or teaching of the Civil Law in Paris in the year 1220. i Ca super specuta ext de privileg Those Popes thought that the restraint of the Imperial Law would be a ready means to bring into request the Canon Law which was as it were but new set up Upon design therefore to bring into credit their own Ecclesiastical Law rather then out of any dislike of the Civil were those prohibitorie Decrees made however they very much failed of that effect that was intended them for we may have observed to this very time that all those Christian States that do acknowledge the Popes authority and power have so equally divided their respect between both those Laws that they have appointed to each their proper function designing the one to be serviceable to Civil matters the other to Ecclesiastical and so by such moderation have done very equal right to both At the same time that the Civil Law was publickly read at Bononia by the means of Lotharius the second it was brought into England by Theobald the Arch-Bishop of Canterbury and being publickly read in Oxford by Vacarius it grew so general a study and other learning was so much neglected upon it that King Stephen incensed thereat sent forth a peremptory command that it should be read in England no more that Vacarius should forbear to teach it any further nor that it should be lawful for any to keep any books of the Roman Laws by them Sed parùm valuit Stephani prohibitio nam eò magis invaluit virtus legis Deo favente quò cam amplius nitebatur impietas subvertere sayes Mr Selden k Dissertat ad Flet. cap. 7. parag 6. But King Stephens prohibition did prevaile but little for the power of the Law God prospering the same waxed the more vigorous when malice did most strive to destroy it Charles the ninth and Henry the third of France did also by sending forth their Edicts forbid the Civil Law to be taught in Paris or that any Degrees should be taken in that faculty Philip the fair and the Parliament of Paris anciently did straitly charge that no man should dare in any pleading to urge or cite the Roman Law against a special Law of the Nation In Spaine it has been made no less then a capital crime to offer or alledge the Roman Law as compulsive or binding And surely it is a high indignity to any Prince to have any sorreigne Law set up against and to beat down his own And therefore in the erection of Universities in France the Kings have alwayes declared that their purpose was to have the Civil and Canon Laws in them publickly professed and taught to make use thereof at their discretion but not that the subjects should be any way bound thereunto lest they should seem to derogate from the Laws of their own countrey by advancing the Laws of strangers l Bodin de rep lib. 1. ca. 8. These and such like edicts declarations of Princes have been alwayes of full force and power as most justly they ought to be to limit the vast and universal power of the Civil
lib. 7. The Laws that were proper for the Romans suit not so well with others the manner of living is not now as it then was the state of affairs is clean changed climates differ and the tempers of people differ too new and strange accidents do frequently arise which will require new constitutions to settle them the form of governing is divers in several times places the Laws therfore cannot possibly be the same Monarchical Laws are of no use to a Popular government and Popular Laws do not fit a Monarchical State Severe edicts will not suit with a milde and gentle people and contrariwise barbarous or untractable natures must not be dealt withall by gentleness or clemency It may therefore be questioned how the Civil Law that was made so many hundred years ago and for one single Nation can be accomodated to other Nations coming in so long a tract of time after them and differing from them in habit language situation manners and form of govermnent Besides to hear of the general use of the Civil Law in forreign parts is so odious and offensive a thing to some humorous Anticivilians that although they be so learned that they must needs know it to be true and having travailed abroad must needs have seen it yet to take away all belief thereof from the people of this Nation lest they should look too favourably upon it they do too frequently suggest in their writings That in France it has been forbidden under a penalty to read the Civil Law to any publick audience and those that should hear the same read were also to undergo the same punishment And that in Spain to cite the authority of the Civil Law in Court has been made an offence no less then capital But they do not add withall which they know they may as truly that these sharp edicts lasted not long but grew out of use very long ago and that the Civil Law does flourish no where so much as in those two great Monarchies and so has done for a long time together and have both sent forth men as famous and renowned in that profession as in any other of whom mention shall be made hereafter For both the study and practice of the Civil Law has been found of such absolute use and necessity that those States that have been brought upon some pretence of convenience to suppress it have been glad after some little want thereof to reestablish it and set it up again Baldwine in his Prolegomena takes in all Christendome in this particular Religio Christiana saith he probavit retinuitque politicas Romanorum leges quas aequitate summa subnixas naturalium notionum honestati proximas esse videbat easque reverita est tanquam Dei dona beneficia Christian Religion hath allowed of and kept the Roman Laws which it saw were grounded upon pure equity and came nearest to natural integrity it self and hath ever since reverenced them as the gifts of God and blessings bestow'd on Man Jus Civile Romanorum sayes Wesenbeck o Parat Dig. De legib nu 9. propter summam aequitatem prudentiam jus quasi gentium omnium populorum bene institutorum commune est The Civil Law of the Romans for its special equity and wisdome is come to be as it were the Law of Nations and of all well ordered people Jus Romanum tam aequum est rationi consentaneum sayes Molinaeus p Ad consuetud Paris Tit. Des fiefs nu 110. ut omnium fere Christianarum gentium usu approbatione commune sit effectum The Roman Law is so equal and so coming up to reason it self that by the usage and acceptation of almost all Christian Nations it is turn'd into a generall and common Law Hoc jus commune saith Peckius q Ca. 28. De Reg. jur in 6. in princip quod tantis vigiliis excogitatum inventum est adeo bonum aequum semper visum fuit omnibus ut hi quos Romani imperii leges non tenent hoc ipsum jus tanquam aequitati naturali maximè consentaneum libenter sequantur ubique probent suasque leges per hoc interpretentur This common Law meaning the Roman invented and wrought out by so hard and so long labour has alwayes seemed unto all States so good and conscionable as even those Nations whom the Law of the Roman Empire does not oblige at all do notwithstanding freely follow and approve thereof as most agreeable to natural equity and do interpret their own peculiar Laws by them Particularly for France Equinarius Baro r Inst De ju nat gent. Civil sayes that si more statutore regionis aut lege Regia controversiae dirimi non possint ad jus Caesareum velut ad 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Judices regii caeterique laici confugiunt If there be no custome or constitution to determine the controversie both Judges and people go to the imperiall Law as the best that ever was And a little after Jus Romanum saith he commune jus Franci appellant interdum absolutè jus vel jus civile quòd eo jure communiter omnes regiones utantur ubi pactum mos lex regia desideratur We Frenchmen call the Roman Law the common Law and sometimes simply the Law or the Civil Law because that Law all Nations do commonly use where agreement custome and particular Law is wanting Annaeus Robertus s Rer. Judic lib. 2. ca. 1. another French Lawyer sayes that some Provinces in France either by special priviledge or by grant from their Kings heretofore made do use the Roman Laws as the Territory of Tholose and that of Daulphine and some others and these are call'd Provinciae juris scripti the provinces of the written Law some others saith he and indeed the most and best Provinces are governed by unwritten customes but in the end he adds for the whole Kingdome thus Civile Romanorum jus in senatu tribunalibus Franciae citare licet non quòd Romanis legibus parere necesse habeamus sed ut aequitatis ratio ex tot clarissimorum prudentissimorum Jurisconsultorum responsis attendi inspici queat The Civil Law of the Romans is alledged in the judicatories of France not that we think our selves bound to them but that out of the resolutions of so many most famous and most prudent Lawyers the rule of equity might be extracted For Spain Fernandus Vasquius t De succes creat lib. 3. parag 26. limitat 31. nu 71. one of their own Lawyers shall give testimony how the Imperial Law and the Law of their own Nation goes hand in hand conjoyned and link'd together Jus Civile Hispanorum saith he hospitio voluntari recepit jus civile Romanorum jamque nostrum jus civile Hispanicum jus civile Romanorum simul pariterque coeunt licet ex vi jurisdictionis illud recipere nos Hispani non teneremur The Law of Spain hath given a free admittance to
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
not opposite at all to the special Law of the place but seem to agree with the Law of Nations or common reason And he grants moreover that ever since Frederick Barbarossa's time which is near 500 years ago the Civil Law has grown into a common profession in this Westerne World CHAP. VI. The Civilians themselves do not enlarge the use and practise of the Civil Law in forreign parts further then Mr Selden himself in his writings grants it to extend FRom what has been cited out of Mr Selden it does appear that there is as much granted by Mr Selden to the Civil Law as ever was challenged by any Civilian or ever ascribed to it by any or that any can wish to be granted to that profession in any Nation He in effect acknowledgeth that when the use thereof came to be renewed in Europe with other learning it was found to be so rich a Treasury of reason judgment and true natural equity and so useful for all matters that respected Civil society and government that by the knowledge and direction of the Civil Law and the rules and principles thereof they knew how to supply with resolution such cases as their National Laws had not made any provision at all in or if they had but were dark or intricate this would help to explain and illustrate them which neither common reason nor any other humane learning would enable them to do The Universities have therefore since made it their common study and commonly given degrees in it and have sent forth the professours thereof into all Tribunals to be the minsters of right and justice there till now at last it is grown to be a common profession throughout Europe And though the original authority which it had in the Roman State is quite worn out no State being now subject to the Roman Sovereignty yet Mr Selden does admit it to be entertained for a binding Law by ordinance in some places that stamp that authority upon it which of it self it hath not in others usually observed as a Law by custome and practise but where it passes not for Law neither way there the reason and wisdome thereof prevailes and every man suffers himself to be convinced thereby non vi necessitatis sed vi rationis not forcing the will as a Law does but as by reason powerfully working upon and at last controuling the understanding Thus far goes Mr Selden himself and by no Civilian has a greater latitude then this been ever given to the Civil Law For what King James spake to his Parliament in the year 1609 touching this matter That there was no Kingdome in the World not onely Scotland but not France nor Spain nor any other Kingdome governed meerly by the Civil Law but every one of them hath their own Municipal Laws agreeable to their customes as this Kingdome hath the Common-Law we all unanimously own to be true And what he told them of Scotland in particular in the year 1607. may be as well and as truly spoken of all the States in Europe If a man saith he plead there that the Law of the Nation is otherwise it is a bar to the Civil and a good Chancellour or President will oftentimes repel and put to silence an argument that the Lawyers bring out of the Civil Law where they have a clear solution in their own Law So as saith he the Civil Law in Scotland is admitted in no other cases but to supply such cases wherein the Municipal Law is defective This is generally reported by others never questioned by our selves For we are of opinion there is no people in the World governed singly by any one kind of Law whatsoever nor indeed can be much less can any State be totally governed by the Roman Law but that there must needs be a superadded and a peculiar Law especially as to government suiting with the climate it self the nature and manners of the people the fashion and form of publick actions divers accidents of the time and sundry other occurrences Nay we often see it fall out that some certain Laws that are specially made for a people and at their first ordaining are found to be most excellent and very wholesome Laws yet in process of time through alteration of things and the very persons themselves for which they were originally made it is as great wisdome and as necessary to change them and quite take them away as it was at first to devise them It is no wonder therefore that divers parts of the Civil Law that were accommodated to the nature of the Roman people onely and the usages then in being should prove incongruous to the men and to the affaires of this present world which is of a clean different face and nature For instance A Roman subject was not such a supreme moderator amongst his Children nor such a free disposer of his own estate as that he could make his Will thereof as he pleased preferring one childe and excluding another or parting it too unequally amongst them or gratifying some stranger without remembring any of them If therefore a childe were quite left out of his fathers Will or were especially disinherited but without any cause mentioned or upon such a cause as the Law did not allow of or if upon a legal cause yet not such as was true in fact the Will was void and null e Wesemb parat Dig. De liber posthum The just portion or share that every child might expect from his father if he made a Will and which he could not give from him without lawful cause was if there were but four children in all or under an equal share in the third part of his whole substance both Land and goods for at Civil Law they both came under one reckoning and went one and the same way without any difference but if there were more then four children then a full half of the whole estate was equally shared amongst them all f Novell De trient semiss parag haec nos If less was given to any child then this just proportion or if it were clogg'd with any condition or time of payment whereby it could not come presently and freely to him the Will was not absolutely void g L. omni modo Co. de inoffic testam but a complaint might be brought to restore him to his just and equal share and to have it presently and absolutely without condition incumbrance or day for payment given h L. Quoniam in prioribus Co. De inoffic testam But in those Nations and Countreys where the subjects are such free and absolute propietaries of all the estate they have that they can dispose of the same how they will even from their own children and to them in what inequality they will these tender and indulgent dictates of the Civil Law are useless and unsuitable Those Titles then and constitutions of the Civil Law that treat on that subject Dig. Co. De
dangers they run through both personal and real they deserve to have the highest immunities conferred on them But let them keep within their own sphear and not aspire to such a function which neither their breeding capacity or parts does enable them unto nor their employment gives them leisure to discharge d Robert Rer. judicat lib. 2. ca. 16. And therefore upon a solemn debate whether Merchants should be joyned to Civilians to try such matters it was denied and judg'd against in France in the year 1584. Besides that it should be thought that men whose knowledge of the Law and skill to do right and justice is no greater then bare nature and their illiterate education has affoorded them should be able to do it quicker and at less charge to those that seek it then those that have made it their whole study and employment is to me an imagination strange and beyond belief for unquestionably the skilful and expert Judge that by his study and practise is accustomed to such business as he does best understand it so he must needs soonest dispatch it also Because custome and knowledge hath made all things of that nature obvious and easie to him and such a judge will not allow any thing to be spoken impertinently and beside the matter in question and so a multitude of business goes off quickest under him and both delay and much charge is avoided But when they come to judge thereof who never meditated or dealt in such things it must needs be that they must run into many impertinent questions and that they must toyle and perplex themselves to understand the true point in issue meeting every where with knots and difficulties and scarce any thing that is easie clear to them wherby they cannot without long and frequent debates and much time spent resolve any ease in question And though it be rightly decided in the end which it is twenty to one if it be and is an act of chance rather then judgment yet in a multitude of other business before any comes to be judg'd the attendance I am sure is most tedious and the charge intollerable so that to put the Maritime and forreign affairs to be judg'd by Merchants is to augment delay and charge rather then to lessen either In like manner those that study and profess onely the Law of their own Countrey which as I said before is commonly but of narrow extent and serves but for a few particular occasions onely may be as justly deemed incapable to judge and sit upon triall of such matters though they do concern the dispensing of Law and justice too wherein the Municipal Law is silent and has made no provision at all or peradventure is not capable to make any determination in them as when they fall out upon the main and open Sea or in a forreign State or are controversies arising between two several Nations or their subjects to which no Municipal Law can be applied In brief where the Laws stand distinct and the professions thereof distinct also the exercise of them ought not to be confounded by the ones thrusting into the others function and calling And therefore much less reason have they to prohibit the Civilians who have the knowledge the triall of those cases and assume it to themselves who have it not Hereupon therefore we say it is that though every Nation has Laws and Statutes of their own proper for their affairs and people and those within their several confines so far as they do prescribe have the preeminence above any other Law or reason in the world as has been said before Yet there is no forreign Nation in the World that has a distinct study and profession of the Municipal Law of the Nation apart and divided from the Roman Civil Law neither are there any where else students and professours of any Municipal Law distinctly so called and dignified as there are in England But the study and profession of Law that is to be found in the other parts of the World and is serviceable for the government of the Civil State is the study and profession of the Roman Civil Law onely All which and whatsoever else we shall say hereafter to the same purpose we would have understood as humble proposals onely to be considered of in order to a future settlement which we hope and long for But if the Authority of this Nation who best can judge what is fittest for the people and what suits best with the present Government shall in the end commit and dispose of those Trials which formerly did belong to the profession of the Civil Law into the hands of others that do not partake of that excellent knowledge it does behove all persons to sit down satisfied therewith and to submit unto it without any murmuring or disputing for I do greatly approve of that golden saying of the Civil Law e Lâ— 3. Co. De grim sacrileg Disputare de principali judicio non oportet Sacrilegii enim instar est dubitare an is dignus sit quem Imperator elegerit No man ought to question that which the supreme Magistrate has once decided For it is a kind of sacriledg to doubt of that persons merit whom the highest magistrate by his immediate election has thought fit to dignifie CHAP. VIII The reasons are strong and weighty upon which so many forreign States do direct and order the business of their Tribunals most by the praescript reason and equity of the Civil Law IT is from the Roman Civil Law that the students in forreign Nations do derive their first principles of Law and justice and in this are all publick Lectures read and degrees taken and not in any Municipal Law Yet it is true that before they practise or sit in places of Judicature they read and throughly inform themselves in the Laws of their own Countrey by which where there is positive and express constitution in the point their pleadings and judgments must be directed wholly But in cases where there is none as the cases be but few where there is in comparison of those where there is not or where that which is is either in sense ambiguous or in words obscure and must be interpreted or where no Municipal Law can be of any force or use at all as in the cases above specified there they generally make the Civil Law or the reason thereof their onely rule and guide to administer right and justice by both to their own people and to forreigners also To this they are led by divers necessary and most important reasons First for them to do so is but answerable to their education as they are all Civilians and to those principles which their learning hath ingrafted in them For since they have been bred and disciplined under it it is no wonder if their judgments and results be steered by it it being natural that waters should have the true relish of the fountain from whence they
and affections thereunto will appear even when the contrary is performed So true is that of the Civil Law Jura naturalia sunt immutabilia y Parag. 11. Inst De jur nat geut Civil The Laws of nature and the common reason of nations are unchangeable and are not capable to be repealed For if it were once admitted that these Laws were alterable what strange contradictions and sensless incongruities would follow And how would man be ravished as it were from himself his reason one chief part of his essence being taken away Besides how would sins and trespasses against nature multiply How common would natural injustice be and what loud complaints thereof would arise whereby not onely great confusion would break in and the peace of the Common-wealth be disturbed but the common society of Nations would in time also cease The Civil Law then as it is natural essential or rational cannot be repealed Secondly let it be spoken to its praise also that the Civil Law is so far from being made useless to a Nation where the whole state of Government has been subverted as that it is thereby become more useful and necessary It is certain that the Roman people themselves thought it so when they dispatcht certain chosen men on purpose to fetch it from Athens for their use and service after they had driven out their Kings suppressed their Laws and erected a popular government in place of the Regal The like opinion possesseth now adayes the Princes and potentates of the greatest part of Europe as is clearly demonstrated by their admitting the learning and profession thereof into their several Territories that it may be at hand to decide and resolve such cases and questions of right that happen amongst their people wherein a Law of their own is wanting Nay if any such difference or controversie arises between the Princes themselves or between Nation and Nation which is most frequent and common because there never was nor can be by any authority a positive Law made to bind them they debate and argue such differences by arguments fetcht from the Civil Law and allow of the reason thereof as a most competent and equal rule to decide them by And if this supply of justice by the learning and knowledge of the Civil Law were taken away too what ignorance uncertainty arbitrariness injustice and oppression would the people of the world lie under and what hazards of detriment or ruine would their rights fortunes and estates be exposed unto for where all manner of Law is wanting in a Common weale to do the acts of justice and ministration of right by it must be granted that the light of natural reason must of necessity be the Law since that was the onely means which was given to man at first to judge and discern by of humane things before any Law was given But if that should depend upon the wandring fancies and imaginations of men onely and not be illuminated by some right knowledge and learning under how many several shapes and forms must it needs appear when the apprehensions and conceptions of men through the variety of natural gifts education age knowledge and experience are as differing as their visages and persons be And where would the certainty constancy and unity of justice be when the Judges of the same Tribunal furnished with bare natural endowments onely would differ from and oppose one another when one Tribunal shall judge directly opposite to another upon one and the same fact or which is a levity shameful and unbeseeming when the Judges of the same Court in cases of like nature shall judge and order diversly from that which they had done before z Apud Romanos prius quà m sententiam ferrent praeco clara vice judioes hoâ—tabatur Ne se paterentur sui dissimiles esse Bodin de rep lib. 6. ca. 6. Under which uncertainty and discordance how shall people know what to expect when their rights come into question What can any Counsel advise Or what caution or advisedness can be used by men to put themselves or their affairs out of jeopardy when they are never certain of that justice to which they should conform themselves and be secure By the conversion and change of State therefore though the Municipal Law goes to wrack as commonly such great frames are seldome medled withal but all falls a pieces the Civil Law is not the less but rather the more necessary to be retained still First because it hath no coherence or conglutination with the particular customes or government either Regal or Episcopal as the Municipal Law hath and so the one may fall and yet the other stand Secondly because the Civil Law is the proper Art and Science of that right natural reason which for want of other rules in the doing of justice we have said must necessarily be the common standard to try all things by The principles of which Art and Science are not weak or superficial but strong and solid not various or repugnant but certain and agreeing not harsh and rigorous but tender compassionate and equitable not partial to any but alike just to all not obscure and perplexed but clear and perspicuous in the eyes of judicious and right discerning men though above the reach of the vulgar Thirdly because in carries the weight of undeniable authority along with it the decisions thereof being not the sudden fancies and raw conceits of a few men nor do they rest upon the bare Reports of any how learned in the Law soever but they are the clear evidence of Reason and the prudent advisements and mature deliberations of a whole State excelling in wisdome mighty in greatness and famous in renown And howsoever it was at first ordained to be a Law for a particular Nation to be ruled by yet has it since been made universal in use throughout Europe and by the general consent of all the learned sprung up to an Art or Science to teach natural justice and equity to all mankind Fourthly because the reason of the Civil Law does not onely rightly inform and teach the understanding what is just and right but the certainty thereof does keep the judgment steddy and unexposed to those fits of variation and instability which those that are directed by no certain principles are subject to for it is not easie for them to vary who have any fixed rules to guide them So that if this Law were duly applied by those onely that are learned in it since it is not possible to be done by any other sort of men neither ignorance nor errour nor arbitrariness nor uncertainty of justice nor the consequences thereof wrong injustice or oppression would be found at least they would not be so frequent and common as where the guidance and light of such a Law is wanting But besides these foregoing reasons there are yet further and much stronger reasons to be added why those matters and causes which before the present change
thing but is an auxiliary supplement or a knowledg assisting in the administration of right and justice both to subjects and between Nation and Nation where there is no Municipal Law in the case or where it is imperfect and obscure or where a locall Law is of no authority at all In the one it supplies in the other it interprets in the last it moderates as a most indifferent Umpire So that of these two Laws the proper office and function is without drawing several wayes and clashing one against another or questioning each others power sweetly to joyn both in that most excellent and divine work of justice which may render the people of this Nation most quiet within themselves and honourably esteemed by others But lastly there is a strange conceit that has got into the heads of some men That the Civil and Canon Law are one and the same that they cannot be severed that if the one be admitted the other will have access also and the letting in of the Canon Law which was ordained by the Popes and the Church of Rome will open a wide gap to introduce all their superstition erroneous doctrine and prelatical discipline and so in time we shall become wholly Romish and Antichristian And truly I must confess that such a cause that might produce so dangerous an effect is not to be neglected but is to be very carefully look'd after But as in the one the supposition is greatly mistaken so there is no such cause of fear in the other not any such danger as is surmised for that these two Laws are the same or that they are inseparable is more then a small mistake They were made at several times long distant each from other by several authors and for several ends and purposes The Civil Law after it had been growing by degrees in a very long process of time as well under the people when Rome was a free State as under the Emperours being become voluminous and indigested the choycest thereof was pickt out and laid together by Justinian and that Collection was perfected in the year 533 and made the Law of the Empire whereof Rome was now no part or member but become the land of the Church the place for the Popes and Bishops of Rome to sit in Who though they made canons for the rule of the Church and Church-men long before yet the Canon Law that is now so styled came not forth into the world till above 500 years after the first part thereof which is Gratians decree being not published till the year 1151. The intent and purpose of the Civil Law was to order and direct all the Civil affairs of the great and spacious Roman Empire And the business of the Canon Law was to guide and govern the spiritual and ecclesiastical matters of the See of Rome the one was ordained to rule a State the other to discipline a Church These considerations then dividing and setting apart these two Laws each from other do manifestly shew that they are neither the same nor for the same end made nor yet inseparable for if that mighty State of the Romans could mannage and carry on so much business as they dealt in by the Civil Law onely what need has any lesser Nation now to make use of the Canon Law at all Besides there has been alwayes such a contention between these two Laws for superiority and which should have most esteem with the Nations of Europe that they have been rather ready to fight as foes then unite and agree as friends Nay Mr Selden a Dissert ad Flet. ca. 6. nu 5. writes that when Pope Innocent the second did sollicit the Europaean Princes and people to give admittance to the Canon Law within their Territories thinking thereby to enlarge his own jurisdiction and greatness they did the more freely receive and entertain the Civil Law that they might the better keep off both the Pope and his Law too So that it should rather seem they are so far from being inseparable that to entertain the one is the onely means to shut out the other And indeed the Canon Law is unnecessary where the Civil is in use for it is well known that the latter Roman Emperours did b Bilson a Bishop of our Church doth defend Justinian and the other Emperors and all Princes in so doing Christian subject part 2. circa princip as they might justly do make divers and sundry Laws from time to time for the ordering and regulating of eccesiastical matters and ecclesiastical men as is evident by divers Titles in the Code De summa Trinitate fide catholica De sacrosanctis ecclesiis De episcopis clericis De haereticis Ne sanctum baptisma iteretur De Apostatis De Judaeis Coelicolis De bis qui ad ecclesias confugiunt and the like And it is as certain that c As may be seen in the History of the Councel of Trent Lib. 4. fol 332 333. and lib. 7. fo 790. there is a multitude of things which the Popes and the Church of Rome have taken upon them to order and make Canons in in ordine ad spiritualia in order to the spiritual welfare of mens souls as they pretend which are Temporal and matters of civil intercourse between man and man as may be seen in these Titles De pactis De precario De commodate De Deposito De emptione venditione De locato conducto De rerum Permutatione De pignoribus De Donationibus De Testamentis De Trenga Pace De transactionibus De Decimis primitiis oblationibus De jure Paetronatus De sponsalibus matrimonîis De successionibus ab intestato De Homicidio voluntario vel casuali De Raptoribus De furtis And divers others And all these things in their true nature are but temporal and meer matters of Negociation or actings between man and man though some of them as Tythes presentations to Benefices Marriages Testaments successions to Dead mens goods that have died intestate other such like are by the Church of Rome accounted spiritual and through indulgence of divers Princes for the Honour of the Church the jurisdiction in them has been granted unto spiritual men But that has proceeded rather from the favour of Princes then from the d Bishop Bilson saith That the Popes decrees judgments and executions in these cases if claimed from Christ as things spiritual and not granted by Caesar are but open invasions of Princes rights calling those things spiritual which indeed be civil and temporal Christian subject part 2. circa med nature of the things themselves And whosoever does take a survey of the Canon Law in the Titles above mentioned and in divers others he shall finde it most taken out and speak the very language of the Civil Law and so much is noted and observed all along by the very Gloss and Canonists themselves So that hereby the Canon Law appears to be
of little use when for the ordering of those matters we may be supplied from the fountain it self from whence the Canon Law has got it But suppose there were such a necessary concomitancy between these two Laws and that the use and practise of the one would be a sure inlet to the other as some do too fondly imagine does it therefore follow that the errours and superstitions of the Church of Rome must needs creep in too No more surely then it follows that because the old Law that is full of Jewish rights and ceremonies is joyned to the Gospel and that we read both together we must therefore presently all become Jews And thus having satisfied all scruples that are usually made against the continuing the Civil Law within this Nation I shall but shut up all in this conclusion That seing the Roman State out of their wonderful wisdome and great experience in government and the several affairs of the World did devise a Law not onely proper for themselves but so mainly useful to other Nations also and that the industry of the learned working upon that foundation has by method order Rules expositions illustrations and treatises of all kinds reduced it to a perfect and compleat Art and Science of Law whereby the right skill and way of doing the purest and most natural justice whatsoever the case be may be taught and known And when it has from thence been ingrafted into our own and the other Universities of Europe and made one of the three chief Sciences there to which the rest of the Arts serve as it were as handmaids and servants and all for the directing of men and Nations how they should deal honestly and uprightly with one another seeing also that our very Martial affairs cannot proceed wel nor be rightly regulated without it and that those Nations whom we have most dealings and intercourse withall and to whom we should despise to be any whit inferiour do not onely keep it but also have no other profession of Law besides it and do think their own private Laws to be very insufficient and lame without it and that divers matters and causes amongst our selves will remain without any Law at all except the Civil Law be kept to order them as it did before Lastly when the Civil Law comes to help and assist and not to infringe or take away from the Municipal Law at all If we shall now abandon it and cast it out of our coasts or which is all one if we shall reward and encourage it so slenderly that no man will either think it worth his pains to study or his cost to take any degree in it to which pass it is most visibly come already I say if we shall still thus neglect or despise it either way we shall not onely set light by the Policy and Wisdome of the Romans which all other people are studious to imitate and come as near as possibly they can but we shall also deprive our selves of one excellent means to improve our knowledge and reason by our justice without it being guided by illiterate and irrational principles will be less satisfactory to the people our skill in the discipline of War and in the Laws of Armes will be very defective the very harmony of learning that has so long flourished amongst us will be dissolved when so considerable a part as the Civil Law is broken off from it other Nations will grow too wise and subtil for us and will turn and winde us as they lift and our justice at home will be lamed not being competent enough for the matters we deal in The consequence of all which will be mischief at home and dishonour abroad which all good Patriots and lovers of their Countrey will lament to see An Index of the principal matters contained in this Book A ARts and Sciences have their beginning growing falling and rising again fol. 50 Argument drawn from like case is unsufficient fol. 41 Admiralty Court proper to be managed by Civilians onely fol. 148 Athens was the place from whence the Civil Law first came fol. 29 103 B Business of other men if I expend any money or care upon though without their privity the Civil Law will see me satisfied fol. 90 Books of the Roman Laws when and where found after that learning had lain neglected a long time fol. 122 Barbarisme will be let in where the Civil Law is expell'd fol. 134 Books of the Roman Laws that were before Justinians Collection after that came forth were quite lost fol. 121 C Children if no disposition at all were made by the father did equally divide the whole estate between them by the Civil Law fol. 15. Enjoyned so to reverence their parents that they could not sue them without leave nor be witnesses against them nor marry without their consent nor charge them with any criminal act fol. 11 Collusion odious by the Civil Law and makes the act void fol. 13 The Civil Law agreeable not onely to the first principles of nature but also to others never so much remote fol. 21. made to rule the mightiest Empire that ever was and since propagated to other Nations 29. and how it came so 30. it teaches men to be virtuous and innocent 48. though sometimes in obscurity yet never to be quite lost 50. it handles publick matters very sparingly 52. custome must agree with reason 36. customes are more acceptable to the people then Laws are ibid. Cases commonly all differ from one another fol. 41 The Civil Law containes the whole reason of man both private politick and that of Nations 53 63. it runs more in a convincing then commanding style 65. most conformable to the Divine and eternal Law 66. grown to be the common authority to justifie or condemn humane actions 67. it avoids niceties and follows the true intent onely 67. it will not allow of some things because they are not worthy nor honourable though otherwise lawful 70. it is full of elemency mildness 71. it prefers equity before rigour 78. all persons of what condition soever may read their duties in it 93. The fundamentals thereof fetcht from other states the best governed that then were fol. 103. 29 Civil Law how it may be admitted into England without any inconvenience fol. 108 Civil Law almost distroyed when the Roman Empire was invaded by barbarous people 114. 116. the first books thereof being lost did much hurt and injury to those that we have now being but an extract of them 121 many of the books thereof to an infinite number perished and were lost by the sad fates that befel Rome Berytus and Constantinople 122. yet under Lotharius the Emperour it was again restored ib. and afterwards grew so great that other learning was neglected and all did study that onely 123. The Edicts of Princes how severe soever were not able to suppress it 124. no where so much in use as in Spain and France though they have both made sharpe