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A18109 A treatise of vse and custome Casaubon, Meric, 1599-1671. 1638 (1638) STC 4753; ESTC S107685 65,850 196

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in sensibus hos naturâ certos putamus illa quae alii sic aliis secus nec isdem semper uno modo videntur ficta esse dicimus So learned and judicious Tullie of the vulgar opinions and judgements of his dayes and had hee lived in ours it is very probable hee would have said as much of ours Instances to this purpose taken from ancient times concerning the varietie of mens judgements in point of right and wrong wee have many in ancient Authors who either of purpose upon this very occasion or upon some other occasion and to another end have treated of the different Lawes and customes of severall nations See Plato in his Politico or Minoe Bardesanes in Euseb de Praepar Evangel lib. vi 10 Sextus Empiricus Pyrr hypot. Nicolaus de Mor. gentium in Stobaeus not to mention any more Certainely should wee take all nations of the World such as have beene accounted moralized and civilized nations I meane the wild and barbarous being laid aside into consideration wee may generally conclude that there is scarce any vertue so much in request in one place but will be found to bee a vice in another scarce any vice so much abhorred at one time in one place but at another time hath beene thought in the same place if not a vertue yet no unlawfull thing Those Authors that I have but now mentioned shall bee my warrant for what I have said if any will not take it upon my credit But in point of right and wrong wee need not to goe so farre to fetch our instances neerer times and places unto our selves and such as wee in many respects are better acquainted with will afford us sufficient instances The Civill Law of the Romans if any Law might bee thought to be grounded upon reason both in regard of the Authors of it men of great worth and fame for their learning and of the credit that it hath found with most nations in Europe even to this day That law thought it good reason to give absolute power unto fathers upon their children power even of life and death as long as they lived except by volutary emancipation or otherwise they had made them free Children that dispose of themselves in marriage without the consent of their parents are not by that law lawfully married and are lyable to great punishments Neither of these is now any where thought either Law or reason though Bodinus I know in his Politicks is very eager for the one and Espenseus a learned Sorbonist hath written a learned discourse concerning the latter whereby he doth endeavour to proove that it is not onely against Lawes but even contra aequitatem naturalem that liberi invitis parentibus should contrahere matrimonia sub quorum authoritate saith hee in quorum potestate Natura Scriptura Deus homines liberos esse voluerunt cap. 8. Which I take the rather notice of because hee layes the blame of all this that it is not so every where as hee would have it upon vim consuetudinis expresly the power and tyranny of custome which hee treates of in the thirteenth chapter And to the same power of custome it seemes it must be imputed that some Nations by their lawes and customes have beene so favourable to stealers of young heires to dispose of them in marriage at their owne will against the will of the parents or guardians of which kind of men you may read at large Decr. par ii Causa 36. contrary to the practice of other nations and to the dictates of reason and a man would thinke of common sense it selfe By the Roman Lawes at lest in Trajans time the Father if a sonne dyed without Issue and intestate but however hee was to have legitimam portionem was to inherit hee alone sine diminutione ne socium haberet haereditatis qui non haberet luctus saith Plinie in his Panegyrick which was thought a good reason For although according to the course of nature votum parentum it bee more proper to children to inherit of their Fathers then otherwise yet turbato ordine mortalitatis as the Civilians speake when nature her selfe doth alter her course and takes the child away before the Father Cur posteris amplior honor quàm majoribus haberetur curve retrò quoque non recurreret aequitas eadem saith Plinie who therefore doth highly extoll Trajan for a Constitution of his to that purpose And Aristotle upon the same grounds of Nature goes yet further 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That it is not lawfull in point of right and reason grounded upon nature for any son upon any termes to disinherit abdicare is more but includes disinheriting his Father though a Father have power to disinherit his son Arist Eth. Nicom lib. viii cap ult Yet in some Countries though the Sonne die never so wealthy and the Father survive never so poore and decaid the Vncle shall inherit before the Father by reason of a certaine Maxime in Law that Haereditas descendit non ascendit inheritance doth descend and not ascend not in the right line that is but in the collaterall it may else the Vncle also were excluded Yet is the Father granted to be neerer of blood but nevertheles eo nomine because hee is Father he is conceived uncapable On the other side that inheritance which they call jure representationis whereby the Issue of the Eldest sonne doth inherit before the next in bloud to witte the younger sonne is Legall by the Civill Law and approoved by the practice of most Countreys Yet till within these few yeares it was otherwise in France generally for many ages together amongst all sorts of persons both great and small But instances in this kind of the difference of Iudgements and opinions in point of right and wrong are so many and so obvious to any man that shall but conferre together the Lawes of severall Countries now in force in the principall places of Europe that one or two are as good as a hundred and a hundred if need were as easie to bee found as one or two And though some Countries are more constant in their Lawes and customes then some other are yet I know none that hath beene so constant where divers things may not be observed once forbidden and punishable some now legall and lawfull others now prohibited which in former times were lawfull in a word no Nation or Countrey neither Medes nor Persians excepted where cancelling reversing and repealing of Lawes and enacting of others much different if not contrary in their place and stead hath not beene usuall I speake not this of such alterations onely as have necessarily proceeded from alterations of times and circumstances of which Durantus in his Speculo Iuris well and pertinently Nam secundùm varietatem temporum jura variantur humana Et nihil pene in semetipso manet sed currit Natura multas evolvens mutationes quas neque praevidere facile est neque praedicere Therefore