in their mutuall transactions when such a numberlesse number of them came before their own Judicatories they chiefly minded the regulation of such matters the Lawes that are now extant being almost wholly taken up in them and handling the publick very sparingly for of the fifty books of the Digests nine and forty do almost wholly consist of these private controversiall things They have taken up likewise all the Code saving a little of the first book of it the three last Books of all The Institutes are altogether spent herein excepting that one Title De publicis Judiciis which is the last of all Hereof Cujacius and Duarenus render this reason Ideo neglectum est jus publicum say they quod parum videretur ejus cognitie singulis esse necessaria quòd de rebus privatis frequentiores essent lites quodque rarò de jure publico interrogaretur Therefore by the Roman Laws so little was declared concerning the publick because the knowledge of such matters was so little necessary for private men and for that most suits were brought for differences betwixt one subject and another as also because little advice was asked upon that which concerned the generall welfare There is nothing therefore upon which a Controversie may be raised in our dealings with one another in this life but to cast the right where it ought to go there may be found out in the study of the Civil Law that which though it was a Law to the Romans only yet has it the force of profound pure solid reason to all other men so perfect absolute and so rational a Systeme is it of all humane affaires and dealings whatsoever Neither are we able to prize or esteeme the singular benefit that hath grown unto the world by the Roman Civil Law being still extant as the value thereof deserveth For the precepts of Nature and the rules of Natural Reason whereof it aboundeth are either such as we of our selves could not easily have found out and then the benefit is not small to have them readily set down to our hands or if they be so clear and manifest that no man indued with reason can easily be ignorant of them yet the Law as it were borrowing them from the school of Nature to prove other things lesse manifest and to induce a necessary consequence of something which were in it self more hard and dark unlesse it should in such sort be cleared the very applying of them unto cases particular is not without most singular use and profit many wayes for mens instruction Besides be they plain of themselves or obscure the evidence of so renowned a Law added unto the natural assent of reason concerning the certainty of them doth not a little authorize and confirm the same Wherefore in as much as our actions are conversant about things beset with many circumstances which cause men of sundry wits to be also of sundry judgments concerning that which ought to be done beneficial it cannot but seem that the rule of Civil Law has herein helped our infirmity whereby we do so well understand what is right and just and what otherwise Though the first principles of the Law of Nature are easie and discerned generally by all men yet concerning the duty which Natures law doth require at the hands of men in a number of things particular so far hath the natural understanding even of sundry whole Nations been darkned that they have not discerned no not grosse injustice and injury to be so Whereby it appeareth how much we are bound to admire the profound wisdome and even honour the memory of the Roman Lawgivers who have delivered such a Law to the world a Law wherein so many things are laid open cleare and manifest as a light which otherwise might have been buried in darknesse not without the hazard or rather not with the hazard but with the certain losse of the rights of many men and nations For albeit there is in the Civil Law as there is and must be in all Lawes whatsoever a very great intermixture of such things as are established by the voluntary determination and proceed from the meere will and pleasure of those that have ordained them who might limit Times Places Forms Actions Rewards punishments difference Persons might order and dispose of all Circumstances in what way and manner they pleased as the Nature Manners Government and Occasions of the Roman people most required without any respect to common and universall Reason and are therefore neither obligatory nor usefull to any other State or Nation as they were to the Roman yet there is in it a rational and natural part also which belongs unto men as men or to men as they live in politick society consisting of such common and natural notions and so abstracted from such circumstances which should change and alter it that it is alwayes permanent alike known to all men or at least to the wiser sort of men obligatory and useful every where And never was there any Humane Law that abounded so much with this as the Civil Law doth it being to be found every where about the whole Law though intermixed with that which is meerely positive proper and usefull for that State and none else or at least not fitting to be made a Rule for all people By Natural and Rational I understand that which our own natural understanding allowes as good or disallowes as evil though there were no Law to forbid the one or to prescribe the other And this was the same which St. Paul a Rom. 2.14 expresses to be the guide of the Gentiles that is of all men naturally The Gentiles which have not the Law doe by nature the things contained in the Law which shews the work of the Law written in their hearts Also that which is commonly received and practised by all men In re consensio omnium gentium lex naturae putanda est b Cicer. Tusc l. 1. what all Nations agree on is to be esteemed natural Quod mundus probat non audeo improbare sayes Baldus c Consild 4. Consil 496. I dare not question that which is generally allowed of Likewise I account that natural and rational which is necessary and behoofefull for those that lead their lives in any well-ordered state of government and without which we take away all possibility of a sociable life in the world Further that justice may well be esteemed natural and rational which is squared by and accommodated to the nature of the thing in question as it is defined and as it generally passes in the account of all or at least the most knowing men Neither do I account that only to be natural rational which was so when the first foundations of the world were laid man became in habitant thereof for then all things were common and men were not gathered into civil societies neither was there any distinction of Nations nor any Cōtracts no waging War nor leading
contra fecerint quam polliciti professique sunt quidvis potius tulisse quam leges They that did promulgate to the people pernicious and unjust Laws since they did clean contrary to that that they alwayes promised and professed to doe they might better be thought to enact any thing else then Laws And though it be never or very rarely seen that any State doth suffer any law to passe them which doth directly crosse the chiefe and fundamentall Lawes of Nature or which opposes the first and main principles of common Reason as to give direct licence to Atheisme Theft Adultery Homicide invading of the rights or possessions of others Breach of Faith or Covenants Rebellion against Magistrates Disobedience to Parents abandoning of Children or such like for this were too odious and detestable and would presently dissolve all society and government Yet the care of a Legislator doth not determine here but must extend further also if they will have their Laws to be of one complexion and likenesse and all to agree with the Lawes of Nature and the Dictates of sound Reason for to each of those first and fundamental principles there are divers inferiour things and actions appertaining which doe mediately or immediately depend upon and refer unto them standing some in a nearer others in a remoter distance from them but all so knit and conjoyned with the first and main principle to which they are subordinate and do as it were wait upon that if any of them be setled by a Law or practised otherwise then they ought to be the first and great principle also by consequence is violated broken or at least an occasion offered to violate and break it and therefore the Legislators care must be to settle these inferior and subordinate things also in such wise as that they may not encounter with any chief or fundamental rule of Nature to which they may have any reference or application For instance That Parents should educate their Children and supply them with maintenance is a Law proceeding from Nature And though no humane Law was ever found that discharged Parents of such their duty yet if a Law shal leave it free to a Parent when he dyes to give away all from his own Children to a stranger or to dispose of all to one child without making any provision for the rest is not that fundamentall Law of Nature thereby consequentially infringed and broken By the Roman Law therefore which does strictly tye all Parents to this Duty f Co. de Alend Liber there is such a proportion due to Children out of their Parents estates when they dye as the Parents but upon certain causes just and true cannot give away from them which was the third part if there were four children or under or half of the whole substance if there were more amongst them all the rest they might freely give away to whom they pleased And this the Law made so sure to them that though the Father for some offence did suffer Death and his Estate was confiscate yet half the Estate should goe to the Children notwithstanding Ne alieno admisso graviorem poenam luerent quos nulla contingeret culpa g Lib. 7. dig de Bon. damnaâ—â— Lest the Fathers fault should prove a sharper punishment to them that offended not except the fault were Treason in which case for terror to others they lost all Vt chariâ—as liberorum amiciores parentes reip redderet h Lib. 8. dig quod metus caus sect fin That their very affection to their Children knowing how greatly they were like to suffer after them might make them timorous how they so offended Likewise if the Parent shall make no Will nor make any disposition of his Estate in his life time but dye intestate if when one of the Children hath entred upon his Fathers Estate though by lawfull Aathority the Law of a State shall adjudge the whole Inheritance unto him and not admit any of the rest of his Brethren and Sisters how many soever they be to divide or to have any share with him neither in reall Estate nor personal surely this is a contradiction to that Original Law of Nature that bindes Parents to provide for all those that are of the same Flesh Blood with them for what themselves cannot doe being dead their Estates ought to performe The Civil Law therefore making no difference between Land and Goods nor between Eldest and Youngest nor Male and Female divides the whole Estate reall and personal equally amongst the Children Ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem addicit velut ad debitam successionem eos vocando sayes i D. l. 7. Dig. de Ben. damn l. 7. Dig. si Tab. testam null s 1. Paulus There is as it were a secret Law made by Nature her selfe that settles the Parents Estate upon the Children calling them to succeed as in their proper right And Omnia quae nostra sunt liberis nostris ex voto paramus sayes k Lib. 50. Dig. de Bâ—u libert sect 2. Tryphoninus All that we doe possesse we professedly destine to our Children Neither does it give one childe any advantage against the rest that he has first lawfully got into possession for he has but thereby made himself subject to be sued by the rest to come to a Partition with them l Tot. Tit. dig Co. Famil creise for Action to divide being once brought the Judge is told by m Lib. 25. sect 20. Dig. Eod. Paulus what he must doe Index familia erciscundae nihil debet indivisum relinquere The Judge of a Partition ought to leave nothing undivided A Law then that forbids Parents to cast off the care of their Children as nature does does not agree with Nature nor with it selfe neither if it does not as the Civill Law does make its other constitutions suitable and put it out of the power both of Parents and Children by fraudulent wayes to make their grand Law of Nature and Dictate of Reason fruitlesse and of no effect Likewise it is not sufficient that the Law of a State has not declared any thing against Honour Reverence and awful respect which Nature it selfe has enjoyned Children to yeild unto their Parents except it does dispose and order the actions and demeanour of Children answerable to that very duty for if a State shall give Children a freedome to bring like actions and accusations against their Parents as against others or to Marry without their consent or to give in evidence against them or shall not punish them when they offer violence to their Parents or speak reproachfully against them the reverential respect so due by Nature to Parents will soon be turned into contempt and scorn The Civil Law therefore has not onely said Filio semper honesta sancta persona patris videri debet n Lib. 9. digâ— obseq parent patâ—on pâ—aestand The person of a Parent
with them as doubtless some Lawes carry more and others lesse as the wisdome of those that made them was greater or lesser that Law I say must needs be the most rational and thereby the best and perfectest Law of all other CHAP. II. That what Reason teacheth should be made the subject of a Law is no superfluous but a profitable thing IT is not any hard matter to give the reason why the principles of Right and Justice and the duties of a civil life that are already ingraven by nature in the heart of man should notwithstanding be further declared and made known by a Law For First though some principles of reason be in themselves so apparent that they need no illustration yet there be others more secret and more remote from the understanding than that they can be discerned by every mans present conceit without some deeper discourse and judgement In which discourse because there is difficulty and possibility many wayes to erre unlesse such things were set down by Lawes many would be ignorant of their duties which now are not and many that know what they should do would nevertheless dissemble it and to excuse themselves pretend ignorance and simplicity which now they cannot a Tametsi nulla perturbatione Judices ab aequitate dimoverentur nihil ominus tamen legibus opus est quibus vel uti lucerna quedam vel imperiti in denfissimis humanarum actionum tenebris dirigantur vel scelerati metu paenarum terreentur Bodin de rep l. 6. c 6. That a Ship and Goods cast away at Sea by tempest if they be driven to Land shall accrue to the publique Exchecquer and the distressed owners shall not by any claim recover them some will not believe it to be barbarous and most unnatural for it is practised by some nations b Sic vivitur ut qui portus babent cam câ—udelitatem tum in cives tum in peregrinos exequantur Jus quaeris Errorius facit Bodin de rep l. 1. c 10. and defended by divers learned men And yet a very Heathen by instinct of nature could cry out Absit O Jupiter ut lucrum captemus tale ex hominum infortunio Jove forbid that we should draw such lucre from mans distresses And therefore Constantine the Emperour did by a Law establish this dictate of Nature and Reason and restored them to the owners and charged his Exchecquer-men not to meddle with them Quod enim saith he c Lib. 1. co de Naufrag jus habet fiseus in aliena calamitate ut de re tam luctuosa compendium sectetur What right can anothers calamity bestow upon the publick treasury that it should reap benefit from a sad disaster Secondly Falshood doth so seek to cloath it self with the similitude and appearance of truth that none of the ordinary sort of men and not all of the best rank neither can discover or distinguish true and solid reason from that which is false and counterfeit When therefore our own natural instinct inbred knowledge beares witnesse to any thing we have the warrant and allowance of the Law for it besides no false colours or semblances of reason can deceive us for what the wisdome and experience of a Nation has agreed and declared to be just and convenient and our hearts do own and allow to be so that unquestionably carries it in the greatest evidence and certainty of true and pure reason that mortal men can attain to in things of humane and civil intercourse Thirdly the Lawes of Reason which Man retaining his original integrity had been sufficient to direct each particular person in all his affaires and duties are not of themselves sufficient but do require the accesse of other Lawe now that Man and his off-spring are grown thus corrupt and sinful And because the greatest part of men are such as prefer their own private good before all things even that good which is sensual before whatsoever is most Divine and for that the labour or doing good together with the pleasure arising from the contrary doth make men for the most part slower to the one and proner to the other therefore unto Lawes it hath seemed alwayes needful to adde rewards which more allure unto good then any hardnesse deterreth from it and punishments which may more deter from evil than any sweetnesse thereto allureth wherein as the generality and substance is natural Vertue rewardable and Vice punishable so the particular determination of the reward or punishment and all other circumstances is the proper act of the Laws Fourthly when men are rebuked for acting contrary to the Law of Nature and the Light of Reason what one amongst them commonly doth not stomack at such contradiction storm at reproof and hate such as would reform them Notwithstanding even they which brook it worst that men should tell them of their duties when they are told the same by a Law think very well and reasonably of it because they presume that the Law doth speak with all indifferency that the Law hath no side-respect to their persons that the Law is as it were an Oracle proceeded from wisdome and understanding Thus we see that what Reason it self prescribeth may in sundry considerations be expedient to be ratified by a humane Law and indeed that a humane Law ought in substance to hold forth nothing which Reason allowes not of CHAP. III. What is here meant and intended by Reason BUt lest there should be any mistake touching the necessary quality of Reason which we so stictly require in a Law it is but needful that we should explain what we intend by Reason For certainly there is not a more deceitful thing than Reason it being made use of frequently by false shews and colours to beautifie the foulest and most deformed things and is grown to be the common gloss that every evil does varnish and deck it self withall also it is such a faculty that those that are partakers of it in the meanest measure do infinitely extoll and admire what they apprehend to be reasonable though to a right judgement it be nothing so and what they have not understanding enough to conceive through their own natural weakness they do as much disdain and condemn how judicious and solid soever it be Although therefore the plainer a Law is and the more obvious to the understanding of those that are to be guided by it the better and the more commendable that Law must needs be yet we would not have it thought that we allow no Law to be good but what every man that is bound by it does immediately understand and approve of For We cannot admit that the capacities of common men are sufficient to judge of Lawes which may be rational enough though the reason of them be not seen to them yet the main principles of reason are in themselves apparent and discernable by every eye and it is not easie to finde men ignorant of them and therefore a Law that
the straitest rule and the best guide to decide it by and the art and skill to dispense equal right and exact justice to all men is to be learnt from the study of no other Law of mans creation but that Law onely Nihil aliud est jus Civile quà m sententiae quaedam à veteribus Jurisconsultis pronunciatae quae in certum redactae ordinem dijudicandi rationem nostris Jurisperitis ostendunt says Machiavell himself in his Prooem to his books de republica The Civil Law is nothing more then certain dictates or principles declared by the ancient lawyers undoubtedly meaning Papinian Vlpian Scaevola Africanus Pomponius Neratins Celsus Marcianus and the rest whose names are prefixed before their several Laws in the Digest which being put into good order do instruct others in the wayes of administring right and justice And hence is it that in all the Universities throughout the World I will not except England the Law that is studied the Law that is publickly read and taught in their Schools the Law wherein degrees are taken is the Civil Laws CHAP. XII An Answer to the main Objections that are now adayes made against the continuance of the Civil Law within this Nation THese things that have been thus truly delivered to the praise and commendation of the Civil Law being clear and evident our Adversaries the Anticivilians will not so vainly contend as to oppose them or to detract from the worth of that learning which has been so generally owned by all the World nor was ever brought into any question since it was first propagated and made known to other Nations besides the Roman They will as they must admit and acknowledge that the Civil Law doth more abound with natural reason and equity then any other Law of mans establishing that it has spread further into the World then any Law ever did and has been more studied and adorned with the writings of the learned of all Nations and languages then any Law that yet has been that the profession thereof is of so large a compass that it takes in and treats of all the affairs contracts and dealings of the World that Princes freely entertain it into their Judicatories and minister right and justice onely by the learned and Graduates of that profession that the principles of solid wisdome and best Moral Honesty are taught thereby that it has described and set down the duties of all people of what relation soever more amply and more to the pattern of nature and right reason then any other Law has done Yet this free and ample acknowledgment notwithstanding they will not admit the use and practise thereof in the ministration of justice within this nation to be cōvenient or necessary suggesting to themselves certain reasons strong and important as they pretend why that profession how learned and wise soever in it self yet since it is become useless as to the people of this Nation it cannot conveniently as our affairs are now changed be continued here any longer as they imagine Which opinion how well it is grounded it is meet and requisite we should in the next place examine for except it may be maintained that it is also usefull and very necessary for the Common-wealth under which we now live and no way or at least in comparison of the great benefits thereof not considerably inconvenient all the other excellencies and rare qualities that can be spoken thereof will turn but into a speculative and ayrie discourse and will move nothing towards the begetting of a publick settlement thereof within the Nation for they will say all rules and instructions that are useful to inform the understanding and fashion the manners and actions of private men or of Princes as they are men onely may not presently be fitting or necessary to regulate and direct a State in the carrying on of publick business Let it therefore be added for a further commendation of the Imperial Law first that as it containes the dictates of nature the conclusions of right reason and as it sets forth the natural and essential properties of such humane things contracts and dealings of men whereof it treats of all which without comparison the greatest plenty lies recorded in the writings of the Civil Law I say as it containes all these it is so essentially necessary to the well ordering of all States and the common affairs of men that it cannot be abolished through any change of Law or government whatsoever but at the same instant the peace and well-being of that State and people must needs vanish and dissolve also For can the Sun fall from the firmament and the world not be at an end or the soule expire and the body not be void of life or motion No more can the splendour of that people endure any longer where the sun of natural equity and justice has left to shine amongst them nor can the body of a Common-wealth grow prosperous or flourishing that is fallen from the soundness of right reason which is the very soul and spirit of all Law and government for in this it is no otherwise with a whole society of men then it is with one individual person If a man shall be unnatural and cares not to observe true right and just reason in his dealings with other men he presently renders himself odious and detestable to all men and it is lookt upon as dangerous to have any dealings or to be familiar with such a person So if a State which is a collective body of men when they are appealed to for common right either by their own people or by other Nations shall administer that for right which crosses natural justice and the notions of right reason it exposes it self to scorn and obloquie it gaules and exasperates their own subjects and makes their neighbours stand at a distance with them and the condition of that State must needs be dangerous and unsure having lost their reputation both at home and abroad Onely here is the difference and it is a sad one The danger of particular injustice determines in some detriment of a few but national injustice drawes after it ofttimes the ruine and confusion of many Nations Besides the impressions of nature and reason are so strong in man and so great a part of his essence that they cannot be quite expunged or deleted in him neither can they be so long discontinued but they will at length have their return Naturam expellas furcalicet usque recurret and inclinations 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