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
last Will Succession or by Marriage community or property of the Sea and the rights of Fishing and trading there freedome from Customes and other immunities granted to forreign Merchants Precedency amongst the Embassadours of Princes and Republicks Promises of protection and aide against enemies Entertainment and harbouring of Traytors or Rebels Interpretation of publick Leagues or National Contracts Not admitting of Embassadours or detaining them or using them in any uncivil manner Making of War or contracting of Peace Sending supplies to our enemies or oppressing our friends and confederates Imbargo's seizing upon our Merchants goods at land or stopping our ships or goods at Sea The arbitrating of differences between Nation and Nation frequently referred to Princes or other States Of the force of National Contracts and of their duration whether they shall bind successours or die with the Princes that made them Latitude of Territory and jurisdiction either upon Sea or Land These and such like are the transactions and matters that may be frequently agitated dealt in between us and other Nations wherein before we fall to an open War we chuse to reason and expostulate the matter with them sometimes we think it necessary to remonstrate the right of our cause to other Nations sometimes to declare the state of the business to our own people Neither of which can be done effectually and with advantage nor shall we be able to hold any such argument convincingly if we have not the perfect knowledg of the Law of Nations and the learning of the Civil Law which to be sure is the onely kind of Reason that other Nations knowing no other Common Law or Rule besides it for such matters will encounter us withall And since we have such great need at this time of Armies by Land and Navies by Sea to defend us from factions at home and enemies abroad I would put it to those of the Military order to consider how not onely usefull but necessary that profession is for carrying on of Military business also as well by sea as by land that all the military discipline good government that they have in their Armies and the right which they are enjoyned to afford to their very enemies is directed by the rules and principles of that profession for it must be acknowledged that the Municipal Law as to the carrying on of Martial affairs is altogether impertinent and of no use at all the same being a Law useful but in peace onely But there are peculiar Laws and a proper discipline for the state of War Sunt belli sicut pacis jura and they are accommodated to the very nature and exigencies of it some of which are That there be solemn denouncing of the war intended that all dissenters may withdraw in time and to divert other Nations from adhering That it be prosecuted by just and honourable ways without treachery corruption breach of faith poyson or secret assassination which the gallant Romans did disdaine to act though for never so great a victory That all articles and capitulations made be strictly kept and observed even towards Turkes Pagans Jews or Infidels That they be interpreted in the plainest and most equitable sense without any art or subtilty at all That an enemy after he has yielded himself be not kill'd but kept alive for exchange or ransome That what is gotten from the enemy is good and lawful purchase though it was newly taken from some of our own people or confederates so that it were but once brought safe into the enemies Quarters That the enemies countrey when it offers to yield be not laid waste burnt or destroyed That when a Town is to be stormed women children aged Ecclesiastical persons so far as is possible may be spared That it be free to friends or confederates to trade with the enemy so they carry neither victuals money armes or ammunition That the Countrey through which the Army passes no offence being given be not injured but kept from spoyl and rapine That Heraulds or messengers sent from the enemy be received and dismissed with safety That strictness and severity of discipline greater then in peace be maintained within the Camp the valiant advanced to honours and admitted to partake in the spoyl which he did help to get the cowardly disgraced the disobedient rigorously chastised the incorrigable cashiered and the aged and worn out souldier be dismissed to ease with reward and honour That a difference of degrees be observed and a subordination made as the places of command differ That for Military offences or contracts and promises made between souldier and souldier the conisance thereof be in the Court Marshall and to be tried by the Law of Armes onely That Hostages be taken and kept and may be put to death if the enemy prove perfidious That neither friends goods coming in an enemies bottome nor a friends ship though carrying enemies goods in her be taken as prize That when a victory is gotten the enemy subdued be used with all clemency and moderation That Priviledges be granted to souldiers beyond other men with an infinite number more which are no where to be found collected and laid together but in the books and writings of the Civil Law which is the onely proper learning to teach and instruct in those matters For it has been the Civilians work to draw together as it were into one body and Systeme all that the Civil Law it self does afford and whatsoever else can be gathered from the testimonies of the ancient Philosophers Historians Poets and Orators in what they are all as it were by the light of nature consenting in one and the same judgment also what has been delivered by the ancient Fathers and most approved Canons of the Church on that subject and especially to bring into argument what has been constantly upon the same occurrences in war judg'd and practised by the most War-like and Heroick Nations that have been as the Graecians Assyrians Medes Persians Lacedaemonians Carthaginians but especially the Romans with whom for experience discipline in War and justice and bravery towards their enemies no Nation that ever acted on this great Theatre of the World is to be compared And so by these helps the Laws of War in use at this day have been made and perfected only through the Civilians pains and industry neither are they to be met with any where together but in their books and writings And therefore since this profession is so useful and necessary for the souldiers business also that they cannot promise to themselves any good order wise conduct or happy success with their Martial enterprizes but by that light and direction which it affords it is evident that it could never be worse spared or discountenanced then now at this time Which I humbly leave to be further thought of by the wisdome of those that rule over us And so desiring thee to excuse me this once for appearing thus in publick being upon so pressing
an occasion as to revive if by such weak endeavours it were possible a whole profession almost quite expiring I bid thee farewell and remaine Thine in all possible respects whatsoever Ro. Wiseman The Arguments of the Chapters of the First Book CHAP. I. THat a Law ought to be agreeable to true Reason page 1 CHAP. II. That what Reason teacheth should be made the subject of a Law is no superfluous but a profitable thing p. 22 CHAP. III. What is here meant and intended by Reason p. 24 CHAP. IV. That Reason is not so strictly required in the Law that orders the affairs of State as in that that settles the differences that arise between man and man p. 33 CHAP. V. That the customes of a Nation ought in like manner to agree with reason p. 36 CHAP. VI. Where Law or custome is wanting to judge by president or example has no defence in reason p. 38 CHAP. VII That they are great advantages which a Nation has by ruling by a such a Law as is rational p. 46 CHAP. VIII That Christian Nations having entertained the Civil Law into their Territories have thereby acquired to themselves the most rational Law that has been ordained as by the constitutions thereof will appear p. 51 The Arguments of the Chapters of the Second Book CHAP. I. THat the greatness and the splendour of the Roman Empire does evidence the singular virtue of the Law it self to which as to its proper cause it may be ascribed page 97 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 p. 103 CHAP. III. That time and intervenience of fatal Accidents that has swept away so many States together with all their Laws and has quite abolished the Roman State it self has not yet been of force to abolish the Roman Civil Law but that it is extant still p. 110 CHAP. IV. That forreign Nations in doing of right between man and man do mainly practise and make use of the rules and dictates of the Civil Law p. 128 CHAP. V. The general admittance and use of the Civil Law in forreign parts is acknowledg'd by our selves here in England p. 133 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 p. 139 CHAP. VII No Municipal Law is sufficient to meet with the multitude and variety of cases and questions that will happen at Land at Sea and in forreign parts Which has caused so many Nations to make use of the Civil Law where it is proper and pertinent to their affairs to jayn with and help their own rather then to be without any Law at all and to be subject to the mischiefs of arbitrariness folly and violence p. 144 CHAP. VIII That the reasons are strong and weighty upon which so many forreign States do direct and order the business of their Tribunals most by the prescript reason and equity of the Civil Law p. 153 CHAP. IX The admittance and sway of the Civil Law in forreign parts is yet further verified by the testimonies of Sr Tho. Smith and Dr Hakewill the one a Statesman the other a famous learned Divine of our own and by some other remarkable institutions within this Nation p. 159 CHAP. X. The general name of Jus Civile The Civil Law is signally for Honours sake peculiarly ascribed to the Roman Civil Law and to no other Law p. 164 CHAP. XI The Art and knowledge of doing the purest right and most natural justice is laid down in the books of the Civil Law and how it came by degrees to that perfection that now we see it in p. 166 CHAP. XII An Answer to the main Objections that are now adayes made against the continuance of the Civil Law within this Nation p. 173. VVESENBEC Parat Dig. De Just jur nu 17. IN constituendo expoliendoque jus Civile Populus Romanus tantum reliquis Nationibus velut gloria belli praestitit ut si omnia omnium gentium instituta mores leges in unum conferantur nequaquam sint cum his Romanorum legibus institutis prudentia aequitate pondere ubertate ullo modo comparanda The people of Rome did not onely go beyond all Nations in the world besides in renown for their warlike enterprizes but so much in establishing of Laws too That if all the Laws and customes of all other Nations were all laid together they would come far short of the Roman Laws both for wisdom equity weight fulness LEX LEGVM OR THE LAW OF LAWS c. CHAP. I. That a Law ought to be agreeable to true Reason The first Book THere is nothing under the Sun that doth more conduce to the Prosperity and Peace of a Nation then fitting and well-composed Laws In the framing whereof those that have the Ordaining Power must be heedfull to observe many things to make their Lawes proportionable to so happy and so blessed an end A Law must not enjoyne any wicked ignominious or unbeseeming things these being in intendment of the Civill Law impossible Quae facta laedunt pietatem existimationem verecundiam nostram ut generaliter dixerim contra bonos more 's fiunt neo facere nos posse credendum est sayes Papinian a L. 15. Co. de condit Inst Those actions which wound Piety Reputation Modesty or in brief are generally disallowed by the practises of sober men may be reckoned in the number of those things which Nature admits not to be done It must be not obscure but certain in the Intimation just in the Precept profitable in the Execution agreeing with the form of Government customes places and time where and when it is to be applyed It must be sufficient for the defence of Propriety for the encouragement of Labour for the safeguard of the Subjects persons for determining Controversies for reward of noble Actions and excellent Arts and rare Inventions for promoting Trade enriching the People and must wholly advance the publick good But above all things the care of the Legislative Power ought to be solicitous in nothing more then to frame and fashion their Lawes b Plutarch saying that Kings ought to be governed by Lawes explains himself that this Law must be a word not written in Books and Tables but dwelling in the mind a living rule the interiour guide of their manners and monitors of their life by that great and exemplary pattern the Law of Nature and to enact or decree nothing dissonant unto true inbred and Natural Reason whereby a Man worketh according to God according to himself Nature the universal order and policy of the world quietly sweetly and as silently without noisâ—… a Ship that is not driven but by the naturall and ordinary coâ—â—â—â— of the Water For when the Wisdome and Power of God first bestowed upon Man Vnderstanding and Reason he intended them
have any effect to the taking away or prejudicing of the right of any person that is concerned For if the Executor of a Will shall combine with any of the next of kin to make the deceased dye intestate and thereupon does faintly defend it in Court where it is in question and subducts or conceales those proofs that should uphold it whereby for want of proof it comes to be overthrown this shall not prejudice the legataries for they shall notwithstanding this Judgement thus by fraud obtained be heard to maintain and set up this will again f Lib. 14. Dig. de appellas And as no man shall be prejudiced so none shall reap any advantage by the fraudulent practise of another neither though he was no party nor actor in the fraud himself Alterius circumventio alii non praebet actionem g Lib. 49. Dig. de reg jur One mans fraud shall not create in another any right to sue The Civil Law can as little endure that the true sence and meaning of a Law should be destroyed by a fraudulent interpretation that keeps the words but perverts the end for which it is made In fraudem legis facit qui salvis verbis legis sententiam ejus circumvenit fraus legis fit ubi quod fieri noluit fieri autem non vetuit id fit h Lib. 29.30 Dig. de legib He deales deceitfully with the Law that transgresseth the true intent of it though he does not trespass against the formal and precise words And therefore when the Law forbids a man to settle any more upon his Bastard than what will barely keep him alive it will not permit him to settle any superfluous estate upon any other person for that Bestards use or the Bastard to receive any such estate from his Parent by another hand Cum quid una via prohibetur alicui ad id alia via non debet admitti That i Reg. 8â— de reg jur in 6. which cannot lawfully be done one way or directly must not be done indirectly or by another In like manner as nothing is more precious among men than Life Property good Name Liberty and the right of Contracts in the which the whole civil interest and welfare of all people may be rightly said to be comprised So it is not enough to provide in a general way for them neither for it does not suffice to declare by a Law that neither the Life Property nor Liberty of any Subject shall be taken away but by course of Law and a lawful trial first had nor to forbid calumnies and slanders nor to command that the contracts and agreements of men shall be mutually observed but a special and most vigilant care is to be had also that all proceedings of justice when a suit is brought concerning any of them be answerable to those great interests and that nothing be admitted which can any way though obliquely or afar off infringe or overthrow any of them Whereof the Civil Law is so tender that by bringing the Action a mans right is rather improved than made worse Neme in persequendo deteriorem causam sed meliorem facit k Lib. â—7 Dig. de reg jur To try a mans right is rather an advantage than any prejudice When therefore any of these rights be in question if the Law of a State be so short and defective as that a mischief may be done and yet no remedy be found or not a sufficient one or if a prejudicial act may pass against me that may endanger my whole right in the end and I not present thereat nor called unto it or if I have not liberty to examine my adversary upon his oath to something which will cleare the whole matter and whereof I have no other testimony but his own conscience or if I may not be admitted to make out the matter as well by violent and strong presumtions as by clear and manifest proofs or if the testimony of one onely witnesse be sufficient in any matter whatsoever to cast and condemn me or if where I cannot have my witness to the Bar through sickness or absence beyond the Seas there be not some expedient allowed to have his testimony upon his oath sent to the Court where my trial is to be or if such just exceptions as may take away or at least extenuate the credit of the evidence brought against me will not be allowed or if the Justice of a nation be too quick and over hasty in concluding upon the rights of men before they can well prepare to defend them or on the contrary be too slow and tedious as not limit a time when suits shall determine of themselves if they be not judged before or if one sentence shall be so final that I may not appeale nor bring my right to a triall any more I say where these proceedings or such like be allowed and and practised whatsoever is most precious and of highest value amongst men be it Life Property Good name Liberty right of Contracts or whatsoever else is flying to the sanctuary of the Law it is subject to be destroyed and taken away For whether the rights of a people be prejudiced by an irregular way of bringing them to trial and iudgement or by the iniquitie of those Lawes that shall judge them in the end the mischief is all one A State therefore that will sufficiently provide for defence of their peoples rights must not onely take care that the Lawes that must definitively over-rule and determine them be equal just and rational but the formes of trial must be the same also that the same security and just dealing which is the end of both may be obtained And herein the Roman Civil Law has been more exact and careful than some other Lawes of the world have been for there is nothing of what nature soever it be but the Civil Law has ordained a means to bring it to a discussion and trial either by giving a special Action in the case l Tot. Tit. Inst de action or a general one m Dig de praescript verb. infact action relieving by ordinary remedies or if those fail by such as are extraordinary n Tot. tit Dig. lo. de in intâ—gr res titu helping men jure actionis or officio judicis that is by way of complaining in their owne name or borrowing the name of the Magistrate o Gl. in s actic Inst de Action verb. quam jus to make their complaints more effectual so that one way or other a remedy may be had whatsoever the evil be nor does it suffer any just complaint to go away unremedied And although it gives the highest authority to Orders and Decrees of Court yet it is so tender of and has such a heedful respect towards the Rights and Interests of men that whether a man be concerned alone in a cause or whether others be concerned with him it allowes of no Act
further proof is excluded so that the next step is to judge and pronounce finally upon the whole matter And although the Roman Empire was the largest and most extended that ever was and the multitude of causes must be supposed to be great too yet no Civill cause whatsoever was to last and continue longer then by the space of three years nor any criminall matter could be prosecuted against any person after two years time ended so that all the proceedings that should follow and be made after such time ended was absolutely null and void b Lib. 13. Go. de Judis Lastly so carefull it is to preserve and uphold the rights of men that it does not make any single judgement to be absolutely conclusive and finall if he that is cast be desirous to bring his cause to be tryed again by another Tribunall So much more fitting is it that the sentence of any Judge should be impeached and overthrown then that truth should suffer or any mans right should be injuriously taken away Within ten dayes therefore after sentence given he that is condemned may by appealing to the next superiour Judge complain thereof and upon sufficient error assigned or upon some further proof made then was before he may procure the first sentence to be quite reversed or at least reformed for the end of an Appeale is Vt aut iniquitatem aut imperitiam judicis corrigat c Lib. 1. dig de appellat To rectifie either injustice or errour These few instances for they are intended for no more and thereby to take a conjecture of the rest also may suffice to shew that as the safety of the peoples rights is the generall end and intention of the Civill Law so it does dispose and qualifie all its constitutions and particularly the formes of triall and judiciall proceedings to the self-same end and purpose and it does constantly hold and prosecute the same course in other matters For if the Civil Law be rightly understood it will appeare that they grosly erre who thinke that though by the Civil Law property is sufficiently enough maintained against common men yet that the Prince or Soveraign has a looser power given him thereby then other Lawes will allow to command or dispose thereof at pleasure because it is a rule in that Law that Quod Principi placuit legis habet rigorem d Lib. 1. dig de Constit Princi sect 6. Inst de Jur. Nat. Gent. Civil What pleases the Prince has the force of a Law and Princeps legibus solutus est e Lib. 31. Dig. de Legib. Novel 105. c. 2. A Prince is not tyed to Lawes Which being literally understood and not taken in that faire and moderate sense which by the course of the whole Law and by the current of Interpreters it is expounded in does import as if Property Life Liberty and all were subject and did hold of the Princes will But that this cannot be the meaning is most evident for that his meer Lust or appetite or every inordinate command that goes forth from him should be a Law is not so believed that the Civil Law ever intended But when the Roman State was now changed from being a popular State and was become an absolute Empire and that the people had conferred their whole power that was in themselves before upon Augustus Caesar in whose time it was that the Royal Law was made and his successors it was meant by those words that the Legislative power should wholly rest in him without the concurrence of any other and that thenceforward the Laws should come from him and be as obsequiously obeyed as if they came from the whole people but yet so that they should not be repugnant to the Lawes of Nature the common dictates of Reason or mischievous to the publick welfare And therefore sayes Harprechtus f D. sect 6. Inst cod Verbum plicendi aut Placiti non volupt itis non libidinis non etiam absolu'ae est voluntatis sod justitiae rationis consilii The word Pleases or Pleasure does not denote Ryot Lust or absolute Will but Justice Reason and good consideration so that though the pleasure of a Soveraign whilst he publishes any thing for a Law is binding and to be obeyed because a Law can come from none but him where the nature of the government is such Yet it must be equall just honest and profitable g Haâ—precht Inst. de rer dâ—v 〈◊〉 p inc 〈◊〉 130. And what does a Soveraign more in this then all other sorts of Governors whatsoever be they more then one as in an optimacy or be the government in the whole people or what more power is given in this by the Civil Law to an absolute Soveraign which is not by other Laws given to the supreme highest rules of any Nation Again all Laws in the world do allow those that have the Supreme Power in them to take away Liberty by Imprisonment where there is any publick danger by Freedom or where it may be a just punishment for contempt and disobedience and to take away life too for capitall offences committed and where publick defence calls for it to command their very Subjects persons and estates to such a proportion as the present necessities require for without this power no community can long endure nor any peace be preserved And more then this nor in any other cases does the Civil Law grant a soveraigne licence to touch either property life or liberty h Harpretcht loc titat nu 95. And where the Civil Law hath declared that a Prince is exempt from Lawes the meaning is not that he may violate and trample upon them as himself lifteth as oft as they stand in his way for that is contradicted expresly by divers Texts of the Civil Law b L. 4 co de legib l. 23. de Dâ—g legat 3. but that he is not punishable when he breaks them because he has no humane Superiour to judge or question him or to exact obedience from him that in some cases he may give license to his subjects not to observe some certain of them by way of dispensation that be may grant pardons to some that have transgressed them where the nature of the fact will bear it and that he may also quite abolish them when they are growne useless or hurtful k Harprecht loc citat nu 120. And under what Law or Government is it where all these things are not cleare without any dispute and held lawful and continually done And generally in all instances of the Civil Law as well as in those whereof mention is made before it may be observed that the imperial Law does not onely ratifie and confirm the general Lawes of Nature and of Nations but takes care also to reduce all its constitutions that might be any way instrumental to the distribution of justice in particular cases how remote soever they be from the prime and
chief principles to a perfect conformity with them and so ought the Law of every State to do for that is the true way to make it rational throughout to keep it from being contradictory to it selfe And that particular Law that makes the least deflections from nature and the common reason of man and whose Acts and Edicts carry most of that evidence and demonstration along 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 Tameise nulla perturbatione judices ab aequitate dimoverentur nihilominus tamen legibus opus est quibus vel uti lucerna quadam vel imperiti inâ— densissimis humanarum actionum tenebris dirigantur vel scelerati metu paenarum terreantur 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 habent cam ciudelitatem 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 fiseusin 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 seck 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 Law 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 is contrary to those common principles is to be abhorred But besides those that are universally received and agreed on there are other principles which are not in themselves so evident but are deduction and inferences from the first and which learned and very understanding men onely are capable by much discourse and reasoning to apprehend And here besides good natural faculties and ripe nesse of years there must be added the right helps of true Art and Learning since Education and Instruction are the means the one by use the other by precept to make our natural faculty of Reason both the better and the sooner able to judge rightly between Truth and Errour Good and Evil. Nay it it not all kind of Learning neither which will give a man a fitness to discern whether the Law of a Nation be conformable to right Reason or not but it must be either all Learning and Knowledge joyned together or that proper legal knowledge which is Ars aequi boni justi atque injusti Scientia the art of Equity a good Conscience the knowledge of Right Wrong Further the Judgement is not yet come to a full degree of perfectness nor competent enongh except it be fortified with a practical Knowledge too and with a Wisdome arising from Experience and Observation for he that will undertake to judge whether a Law be agreeable to natural Equity and good Reason he must not take his estimate from the matter of the Law onely but he must consider divers other circumstances besides For First He must see into the Nature Manners and Inclinations of the People for the end of all Law being but to preserve the Publick Peace and to keep the people in good order d Salus populi suprema ltx est that Law must needs be best and most rational which does soonest produce that end And therefore considering that men even by the very climate they live under are made to differ so mainly in every thing Body Soul Religion and Manners from the strange variety of Lawes which we see and read of throughout the world we cannot presently conclude any of them to be unreasonable A Law e Aristot Polltic there is mentioned amongst the Graecians whereof Pittacus is reported to have been the Author by which it was agreed that he which being overcome with drink did then strike any man should suffer punishment double as much as if he had done the same being sober No man could ever have thought this reasonable f Ebrius si delictum commiserit clement ùs est puniendus Menoc cas 326 l. 2. de Arbier Judic nu 1. that had intended thereby onely to punish the injury committed according to the gravity of the fact for who knoweth not that harm advisedly done is naturally less pardonable and therefore worthy of sharper punishment But forasmuch as none did so usually offend this way as men in that case which they wittingly fell into even because they would be so much the more freely outragious it was for their publick good where such disorder was grown to frame a positive Law or Remedy thereof accordingly And therefore in that place that was a most rational and a just Law A justification whereof we may finde in the Roman Law it self Nonnunquam evenit sayes Saturninus g L. 16. dig de poen perag 10. ut aliquorum malificiorum suppliciae exacerbentur quoties nimium multis personis grassantibus exemplo opus sit It sometimes comes to pass that some certain offences are the more sharply chastised when offenders therein grow so numerous as that it is necessary to make them exemplary for which severity the Law-givers are no way censurable but the wicked inclinations of men are to be taxed which have enforced it from them Our Saviour himself did excuse Moses for suffering the Jewes to put away their wives for lesser causes than for Adultery because of the hardness of their hearts though from the beginning it was not so h Matth. 19. that is though it was not agreeable to nature nor to the practise that had alwayes been It being the lesser evil to dismiss them fairly than to prosecute them with continual hatred out of which greater evils might ensue to which he knew the Jewes such was the malignity of their nature might soon be tempted Likewise it is not void of reason neither that the same faule should be punished with greater severity in one State where the opportunities of committing it are greater the inclinations of the people more prone to offend therein and the prejudice thence arising is more considerable than in another where it is not so Evenit sayes the same Saturninus i D.l. 16. par 9. ut eadem scelera in quibusdam provinâ—iis gravius plectantur ut in Africa messium incensores in Mysia vitium ubi metalla sunt adulteratores monetae It happens that the same foul actions are more heavily punished in certain Provinces as those that set fire on Corn in Africa on Vines in Mysia and corrupters of currant Money where it is of Mettal Neither is it any injustice or cruelty thus to vary Non statim debet videri tyrannis siquid gravius aut remissius publicae necessitatis causa in Legibus statuitur nam sine tali injuria respublicae non possunt regi sayes Conradus Lagus k Method jur civ part 1. c. 4. nu 7. It ought not to be looked upon as tyranny if at any time the hand of the Law be sometimes heavier and sometimes lighter as publick necessities shall command for without such inequality of measure Common wealths cannot be governed And yet all this while here is no repugnancy to Nature neither for the general principle of nature and of Nations which is to punish offences that are past and to suppress them for the future is still observed onely it being accommodated to several nations which are various and differing it cannot possibly be executed by the same coertion or penalties nor in one and the same manner Secondly the form and kind of Goverment must be respected also for some Laws may be judged very good and fitting for a Monarchy which cannot be so accounted of in a Government by a few or by the whole people or in such a one as is mixed and made up out of them all Thirdly when a Justice of the Law is doubted it must be examined what urgency of affairs there was at that time when the Law was made and whether some necessity and great reason of State did not enforce it For those that guide the stern
do see those lets and difficulties in preserving the whole which others cannot discern and therefore it is no marvel if such Lawes be enacted sometimes for which no reason can be rendred Non emnium quae à majoribus constituta sunt ratio redda potest l L. 20. dig de legib A reason cannot be given for every thing that our Ancestors have established for a Law Fourthly A Law that may be mischievous to divers particular persons though otherwise very innocent must not therefore be presently condemned as unreasonable so that it be convenient and profitable for the publick welfare Jura non in singulas personas sed generaliter constituuntur m L. 8. Dig. de legib Lawes are ordained for the generalities sake not to provide for each individual person whose particular interest must suffer rather than the whole society be brought into jeopardy n Livius l. 4. de bello Macedon l. 11. dig de just jur A particular mis-chief is better than a general inconvenience Nulla lex satis commoda est omnibus id tantùm quaeritur an pluribus in summa an prosit No Law is every way beneficial unto all that onely is enquired into whether it be generally profitable and to the most Fifthly A Nationall Law that is generally and in most of its dictates and principles very just and equitable and universally so acknowledg'd by the wisest and most judicious men and Nations is not to be censured for some few particular constitutions which may seem hard and rigorous or whereof the Justice Equity or Reason is not so evident for this enterprise of making Lawes is the weightiest thing which any man can take upon him And where a multitude of Laws comes to be made by men the best of whom are subject unto errors and for cases of infinite number wonderful variety some few deviations if any be may be excused It may well suffice that the Body is fair and the Specks but few Sixthly we can by no meanes allow of their way of judging who are ready to measure the goodnesse of Lawes by the corrupt and evill practises of those that are instrumental to administer them Neither are Lawes to be judged such as their execution is Can a fountaine be judged the worse because it is so unhappy as to run through a foule and slimy channell or a chast Matron traduced because violence has polluted her so neither can the Law be justly charged with the exorbitancies of men which it self condemns and was purposely made to revenge and punish them and would do so too if violence power and fraud did not obstruct its course Seventhly we can as little esteem those competent and fitting Judges of a Law that are so forward to asperse and make it infamous because by ancient institution it was once ministerial and attended upon a power and function which they ever disesteemed and have lately seen abolished Upon this ground and no other that can be imagined have divers uttered their bitter and contumelious invectives against the Roman Civil Law having been helpfull in the exercise of the Ecclesiastical jurisdiction of this Nation which because they see eradicated and quite taken away they judge the other quite uselesse and therefore in their conceit ought not to be kept or continued here any longer In which argument were there any strength of Reason it might be more strongly enforc'd against the Commmon Law it selfe the intent and scope whereof being to set up and maintain an absolute successive Monarchy in this Nation and to keep the people in a subjection under it that Government being now thrown down it may be inferr'd that the Law also which did found and support it should never be made use of more and that a Law of greater liberty and freedome should be set up in place of it and so in conclusion the reason of these disputants would allow us no Law at all But these must not be ignorant that the Civil Law was originally made least of all for Ecclesiasticall matters nor yet for so few cases as in this Nation it was permitted to deal in but it was first ordained to guide the mightiest and vastest Empire that the world hath yet known and under it the same grew and prospered to the terror of its enemies the joy and comfort of its friends and confederates and to the astonishment of the whole Earth Indeed before the first foundations of this Law were laid the Romans did not disdaine to fetch their Lawes from Athens that City which was once the nurse of Reason and flourisht in eloquence and brave atchievements more then all Greece whence the learned Fathers of the Church suckt literature Basil his eloquence Nazianzen his strength and others their flowing Oratory that Athens which who had not seen is by Lysippus accounted a very block But since this beautifull fabrick of the Civil Law was reared up and came to the perfection we now see it in it did not onely order and compose all matters of publick Justice and of private Right in that State but is since through the singular treasures of Wisdome and purest Reason laid up there propagated also to other Nations who constantly use it in their Courts in conjunction with their own Lawes And in conformity to other Nations did it come to passe that the use of it was admitted and brought into the Ecclesiasticall and other Courts of this Nation where naturall Equity and the best Reason came to be dispensed in the doing of right and justice and especially for commerce with Nations abroad whereunto that knowledge is most requisite Therefore to say that the Civil Law is uselesse because the Ecclesiasticall power is thrown out is as much as if we said we have no further need of naturall Equity or right Reason nor need to treat with forreign Nations any longer nor now be so wise as we have been and as other Nations are Lastly though the wisest of a people have upon mature deliberation agreed upon a Law and the Legislative power of the Nation has enacted it yet that does not presently conclude the same to be rationall for since the people of other Nations are partakers of the same Nature Reason Learning and Experience with them except it can appear rationall to others also that are taught and guided by the same principles it is not to be deemed rationall And from this single ground onely was it that the Roman Civil Law came to be so universally embraced by other Nations and to passe so generally for a most rationall and just Law because more naturall and common principles of Reason Justice and Equity were found therein then in any other Law of Mans ordaining and because we meet with that reason there that is universall and common to all mankind And if there be any certainty of Reason in matters of humane discourse as we must admit there is else we shall put out one of the chiefest lights that
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
ever certain and therefore the Civil Law sayes that Prator quoque jus reddere dicitur etiam cùm iniquè decernit d L. 11. dig de just jur and Res judicata pro veritate accipitur e L. 207. dig de rap jur a Judge is said to minister right even when he decrees unjust things and a Sentence is taken and stands for truth yet there is nothing either of Equity or Reason to make them so authoritative and powerful as that they should be drawn into example for the future and be made patterns to determine other though never so like cases by since the wayes and means of obtaining them may not be fair and their integrity and foundnesse be questionable Fourthly whereas similitude and likeness of cases is the onely reason to perswade the walking by the light of such Judgements as have been before pronounced upon facts that are supposed to have had the same circumstances Quintilian f Institut l. 5. c. 2. sayes very truly Vix ulla est causa per omnia alteri similis there is scarce any cause that suits or agrees with another in all circumstances and again g Lib. 7. iupraejat he sayes Tot seculis nulla repertae est causa quae est tota alteri similis In so many ages and in such a multitude of cases that have occur'd there has not been found one wholly like another for indeed the dissimilitude and difformity that is amongst our selves and the whole off-spring of man not in outward form visage lineaments or stature onely but even in our natures tempers inclinations and humours also makes all the matters we deal in and the actions that flow from us disagreeing too Also in the other productions of nature and the accidents that are commonly ascribed to Chance and Fortune there is such a strange and wonderful variety that nothing is acted produced or happens like another but that there is some circumstance or other that does diversifie it and make it differ When therfore cases are eitherwholly diverse differing though in never so small a circumstance their determinations cannot be the same h Reâ—per se ipse valde pernicioà est exemplis non legibus judicare cum ex levissima personarum vel locorum vel temporum varietaâ—e judicia mutentuâ— Bodin de rep l. 6. c 6. for diversity of Fact must needs beget a diversity of Law too and a very small Circumstance will change and alter the state of any business and require clean another Judgement than can be had from Cases that do not exactly parallel them in all things And this has made all Lawyers to agree that argumentum ductum a simili est multùm fragite infirmum nec procedit quando datur dissimilitudo etiam parva i Fverard Topi. loc à simili nu 12. An Argument drawn from a like case is very weak and impotent and falls to the ground when the least dissimilitude is found Fifthly since before former presidents can be made fitting rules to decide judge other cases by it is absolutely necessary that the cases should agree punctually in all such circumstances as were the prime efficient cause of such finall and definitive judgement how shall this Concordance be made evident and certain for it must either depend upon the memory and truth of a Reporter and the Judge together or else upon the safe keeping of all that was alledged and proved in the case in some Rgistry or Office and the exact search and perusal of all upon occasion neither of which is authentical and sure enough whereby to judge and condemne another man for either the report may be very easily mistaken or some leading circumstance may slip out of the Judges remembrance or some of the Records be lost or mislay'd so that a part of the Case whereupon the Judgement passed may be wanting and not rightly known Upon these and such like considerations is it that the Civil Law does so frequently express it self in disallowance of judging by president or example and directs Judges to reflect onely upon that which Truth and the Law will bear and not upon any thing that has been done by others Licet is qui provinciae praeest omnium Romae magistratuum vice officio fungi debeat non tamen spectandum est quid Romae factuÌ„ est quam quid fieri debeat sayes Proculus k L. 11. Dig. de offiâ—â— Praesid Though the provincial and inferiour Magistrate does exercise the same power and office that the Magistrates do in Rome yet he must not loook so much at what they doe in Rome though the chief and head City as what indeed and in right they ought to do Justinian also did by an express constitution made in his time command all the Judges to pursue strictly Truth Justice and the Lawes and not in judging to take their example from the most solemn sentences of the highest and most eminent Judges in the whole Empire no nor to follow such resolutions as himself should make to emergent doubts propounded unto him if he had otherwise decided them then they ought to be Non enim saith he si quid non bene dirimatur hoc in aliorum judicum vitium extendi oportet cùm non exemplis sed legibus judicandum sit l L. 13. Go. de sent inter l. omn. jud for if a case has been once determined amisse this should not spread to the corrupting of other Judges since we ought to Judge by the Lawes and not by example And therefore Gordian the Emperour makes it a strange and an unwonted thing in Rome that Judgements had between other parties should either profit or prejudice those who were neither present then in Court nor ever called Res inter alios judicatae saith he neque emolumentum affâ—rre his qui judicio non interfuerunt neque praejudicium soâ—ent irrogare m L. 2. Co. Quibue res judic non noc Which holds not onely in civil matters but as to prejudice reaches to criminall also Juris manifestissimi sayes Dioclesian and Maximinian Emperours n L. 3. Co. Eod. in accusationibus his qui congressi in judicio non sunt officere non posse siquid forte prejudicii videatur oblatum There is nothing more manifest in Law then that in criminal prosecutions a condemnation had can do no manner of hurt or hinderance to him that was not accused I therefore say as to prejudice because when Life or Honour is in Jeopardy by a criminous impeachment the Law is so carefull to preserve the same that the acquittall of one offender is an acquittall of the other also the Law being more prone to absolve then to condemne and so Vlpian answered in the case of Adultery o L. 17. Parag. 6. dig ad l. Jul. de Adulter Expectabit mulier saith he sententiam de adultero latam Si absolutus fuerit mulier per eum vincet noc
Regiae ex-leverunt iterumque caepit Populus Romanus incerto magis jure consuetudine aliqua uti quà m perlata lege ià que prope vig nti annis p ssus est Kings being driven out of the Empire their Lawes presently ceased and the people of Rome did again begin to be governed partly by arbitrary discretion and partly by custome rather then by any written Law and so continued for twenty years together And so it comes to passe that new Lawes are alwaies prepared to suit with a new Government Yet upon no change whatsoever are meer rationall Lawes repealed or grow out of use The reason hereof is because men can never lose their Nature forgoe their Understanding or quit their Reason Neither can a supposition be admitted that such Laws as these can be unsuitable to any Government for what kind of Government hath been hitherto devised by Man or established in any Nation with the which naturall Equity or the dictates of right Reason has not suited Nay it should be rather concluded there may be a Tyranny but there can be no government without them Hereupon it has been that no change that ever happened in the Roman state no nor the overthrow of the State it self could take away the force or use of the Roman Civil Law but that other Nations have assumed it into their territories and have made it serviceable to their occasions and wayes of governing how various and differing soever those occasions and kindes of government have been Furthermore though Lawes with all other worldly things besides have their times to waxe old and as it were decrepite in according to that of Claudian Firmatur senium juris priscamque resumunt Caniciem leges emendanturque vetustae Acceduntque novae Yet those Lawes that are inspired by Nature Reason and pure Equity can never in any time in all places at once lose their esteem or use These are the Lawes that carry a clause of perpetuity with them they were first born with Man and can never dye before him It might well be reckoned amongst the wonders of the World that the Civil Law made so many hundred years agone and which has seen the spoil and overthrow of Rome it selfe and many other States and Empires besides should still flourish in the Europaean Nations as if it were but new sprung up but that surely the eminent wisdome and known reason that is in it hath given that Law a life as lasting as the World it selfe It hath been observed of all Arts and Sciences that there is a kind of circular progresse in them they have their birth their growth their flourishing their failing their fading and within a while after their resurrection and reflourishing again And Aristotle f 1. Decaele ◠Mottor himself who held the Arts Eternall as he did the World yet tells us there was alwaies a rising and a falling of them as of the Starres so as sometimes they flourished in one place and age and sometimes in another as the Starres sometimes shine in our Hemisphere sometimes in the other And so it may fare with that Noble and usefull Science of the Civil Law in like manner it may be obscured and under a dark thick cloud for a while in one place or other but it can never be irrecoverably lost every where but it will still find some place to prosper in till at last it be even courted to return thither from whence it was before expel'd Lastly to shaw the benefit of clear and rationall Justice yet further As it is of highest advantage and benefit to a Nation to purchase the acquaintance and correspondence of other Nations abroad as well for traffique sake by exchanging their Commodities together as also to be confoederated by a league with them to be made the stronger and likewise for doing all good reciprocall offices each to other so nothing can more strongly invite forreigners frequently to resort unto to trade deal and communicate with a Nation then an assurance that in all their dealings if difference happen to arise they shall receive plain and clear justice fetcht as it were from the very bowells of Heaven and Earth and grounded upon the very fame reason they bring into the Nation with them But if in stead of this fair and civil entertainment they shall be led into labyrinths of something call'd Law where they can discover no light of that reason whereof they partake as men nor yet any of those principles which in the acts of Justice are currant amongst all other civill Nations they will conclude it is not safe nor honourable to converse any longer with such a Nation but will forsake and abandon it as barbarous CHAP. VIII That Christian Nations having entertained the Civil Law into their Territories have thereby acquired to themselves the most rationall Law that hath been ordained as by the constitutions thereof will appear THus have I laid down the most excellent fruits that a Nation reaps by framing for it selfe such Lawes as are agreeable to the old and ancient grounds of Reason in Nature the Grandmother of all Law justly so styled Of the which the Nations of Christendome for these many hundreds of years have therefore very plentifully partaken because they have admitted into their Schools and Academies the Study and into their Tribunalls the use and practice of the Roman Civil Law for although all publick businesse and the generall affaires of State wherein the interest of the common welfare lyes are carried on by Laws of each Countreys own making fitted to time place persons occasion and accidents that doe happen which the Civil Law cannot be made to serve nor suit withall so vatious each Nations exigencies and occasions are Yet they borrow their greatest if not all their light and direction from the Civil Law in setling the contentious bufinesse a Omnia judicia aut distrabendarum controversiarum aut puniendorum malesiciorum causa reperta sunt Cie pro Caecin of the Subject and the matters that arise in difference betwixt party and party their perfectest Municipall Lawes having contributed so little towards their determination that in comparison of what they have made no provision at all in that which they have seemed to provide for is to be accounted nothing Most States employ their consideration most upon the publick welfare and upon such interests as have an universall effect upon the whole body as easiest to be seen and requiring but one and the same remedy for all But in a numerous multitude and where their transactions and dealings with one another are so various and indeed by different circumstances become infinite to suit each persons case and businesse with a proper and fitting rule to decide it is a work so void of end or bottome and past finishing that no State will set upon the enterprize to begin it especially when the Art and Science of the Civil Law has done it to their hands so excellently well and with so much wisdome
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
an one as the Law may possibly presume he does it rather to testifie his natural affection towards him then to demand any thing of him for the same I say if there be any such proximity or nearness and yet an eye to to future satisfaction he must declare and make protestation that it is done with that intent and not donandi animo not out of any mind to bestow it freely but to be allowed for the same else the Law will strike it out upon the score of affection and natural obligation And so did Alexander Severus declare to Mother Herennia who when she had fed and maintained at her Table her children and laid out money besides for their other uses when they came of age she demanded satisfaction of all from them but being denied it she complained to the Emperour who made her this answer Alimenta quidem quae filiis tuis praestitisti tibi reddi non justa ratione postulas cùm id exigente materna pietate feceris Si quid autem in rebus eorum utiliter probabili more impendisti si non hoc materna liberalitate sed recipiendi animo secisse te ostenderis negociorum gestorum actione id consequi potes p l. 11. Co. eod Thou hast no just reason to demand payment for that alimony and sustenance which thou didst afford thy children for very natural piety did require it of thee But if thou hast usefully and in a probable hope to advantage them expended also money about their business if thou canst make it good that thou didst it not out of a free mind nor meerly as a Mother but with an expectation to be reimbursed thereof by thy children the Law will enforce them to pay it thee back again Lastly he that will voluntarily and of himself being not commissioned act in anothers business if he intends to ground any demand upon it he must be sure not onely to think and intend a benefit or advantage to him whom he is about to serve but it must be really so For let him think it never so beneficial and wish it never so much yet if it be not so indeed the loss will be his and he can challenge no satisfaction for what he does or expendeth Vt enim eventum non spectemus sayes Uâ—pian negocium debet utiliter esse coeptum q l 10. parag 1. Dig. eod Though we value not the success yet it is requisite that it should be evidently useful or necessary when it is first undertaken Lastly not to sail any longer in an Ocean so vast and infinite having given instances enough to measure the rest of the Law by tanquam ex pede Herculem though it is the proper work of every Law that is made to declare to the people what things they ought to do and from what they must abstain and wherein they may take their full freedome r I egis viâ—us est in perare vetaâ—t permiâ—tere puntre l. 7. Dig. de legth yet no Law has ever done it so fully and perfectly as this has done For Princes Rulers Councellours of State Judges subordinate Magistrates Advocates and Clients Proctors Registers and Notaries Masters of families Husbands and Wives Children and Servants Masters and Scholars Tutours and Pupils Merchants Factours Buyers and Sellers Letters and Hirers Borrowers and Lenders Officers and Souldiers open Enemies as well as allies and Confederates Embassadours and Nuntios Conquerours and Conquered Owners Masters and Captains of Ships Pilots Mariners and Passengers Aliens and Natives Fiduciaries Mediatours Substitutes and lastly all sorts of people of what age degree or condition soever they be may read their truest duties in this Learning and be directed how to order and demean themselves aright in their several offices and functions So that when the learning of this Law is thus universal running through the several negociations and matters of intercourse between Man and Man Nation and Nation and having a resolution ready for all such questions as arise upon them and is so rational withall that its decisions are rather the strong enforcements of reason then any commands of will it ought to be no matter of wonder to us that it has found so much credit and authority with Christian Nations as to make it the rule to end their greatest Controversies The End of the First Book LEX LEGVM OR THE EXCELLENCY Of the Roman CIVIL LAW Above all other HUMANE LAWS WHATSOEVER The Second Part. London Printed for R. Royston at the Angel in Ivy-Lane 1656. LEX LEGUM OR THE EXCELLENCY Of the Roman CIVIL LAW Above all other HUMANE LAVVS WHATSOEVER CHAP. I. That the greatness and splendour of the Roman Empire does evidence the singular vertue of the Law it self to which as to its proper cause it may be ascribed ALbeit it be praise sufficient for the Roman Civil Law that it hath more of natural equity and pure reason in it then any other Law of Man and that more need not be said to divert a Nation or people from throwing it out of their Territories or disesteeming it then that they may thereby seem to abandon their own reason and stifle the very dictates of nature and even stop up that fountain from whence all their own particular Laws were at first derived for lex Romanorum legum omnium Mater nuncupatur a Addit ad Capitul Lud. Imper ca. a. tn God leg Antiqu. the Roman Law is called the Mother of all Laws that have since been made Yet because there are many other grounds upon which it may be yet further extoll'd and set up above other Laws I think I cannot spend time and pains better then to set them down especially when I see every thing is laid hold on to cry that profession down And surely if the dispensation of right justice be a principal means to make a State glorious and flourishing this Law must needs surpass in excellency all other Laws by how much the Roman State whch was all along carried on by that Law did in greatness exceed and in splendor out-shine all other States and Empires that have yet been Touching which the Roman story every where gives us to undestand that the Roman State in process of time grew so large in Dominion and Power that it spread it self almost over the whole World there being few Nations which were not brought under its rule and government and indeed was esteemed the common countrey of all men and the Center of the whole earth Tantae erant Romanorum vires ut Asia Africa maxima Europae parte subactis iisdem serme quibus Solis cursus metis imperium suum finirent sayes Loccenius b Peâ—iod Imper lib. 4. ca. 5. The potency of the Romans was grown to be such that Asia Africa and the greatest part of Europe being Conquered the Sun and the Empire did almost run the same race It maintained intercourse of Trade and held correspondence with all other Nations of what sort
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
potency by Sea grew so expert in the regulation of all matters and differences thereto appertaining and their determinations therein were esteemed so just and equitable that their Laws in such affairs have been held oracles ever since And therefore Antoninus the Emperour to a complaint that was made unto him by Eudaemon whose goods had been seized by some publick officers upon a shipwrack gave him this answer Ego quidem Mundi Dominus lex autem Maris Lege id Rhodia quae de rebus nauticis praescripta est judicetur quatenus ei nulla nostrarum legum adversatur z L. 9. Dig. De lege Rhod. That is I am the Lord of the world but the Law is the Empress of the Sea Let the Rhodian Law which has the regulating of Sea matters decide it so that none of our own Laws be opposite thereunto And generally it was their custome and usage that whensoever they conquered any Nation they did not onely give them Laws as conquerours use to do to those whom they subdue but I may say they received Laws from them too For what Laws practises or wayes of government they found there or any where else where they came that were laudable and useful in their State they carried them home and there put them in practise observing them rather with humility then rejecting them with disdain Majoribus nostris saith Salust as Baldwine quotes him in his Prolegomena speaking of the Romans superbia non obstabat quo minus aliena instituta si modò proba erant imitarentur Imitari quà m invidere bonis malebant quòd utique apud socios vel hostes idoneum videbatur cum summo studio domi exequebantur Our Ancestors were not so high minded as not to imitate such rules and customes of other Nations as they found to be good chusing rather to tread in the steps of vertuous and well disposed people then to envy them Therefore what either their allies or enemies afforded that was useful and fitting they greedily embraced and practised it in their own State And if Salust may be thought partial because a Roman writer let Polybius speak that was a Graecian They were always so wise saith he as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to take and apply the best customes of other Nations to their own use Athenaeus saith the same and declares it at large how from the beginning and first founding of the Common-wealth they took from others the best points of policy and government And so in these Laws of ours we have what all the wisest and noblest men in that Common-wealth which was the most flourishing and potent that ever was in the world could of themselves by their wisdome and reason devise or could learn from other States in about a thousand years for about so many years it was from the time of the Decemvirate unto Justinians death Tantae molis erat Romanas condere leges From this example of the Romans who admitted so freely other Laws besides their own and would rather send about to borrow Laws from others then want such as were necessary and convenient for themselves we may learn to esteem it neither shameful nor inconvenient for the people of this Nation to give such an admittance to the Roman Civil Law here as the Romans did in their State to the Laws of other Nations For it must needs draw after it much benefit and no prejudice if it be done with these cautions First that it be a free and a voluntary act of our own and not imposed upon us by a forreign power Secondly that it be admitted meerly to supply the defects of our own Laws and to have a resolving power in such cases onely where our own Laws have made no determination at all Thirdly so little to be made use of in opposition to our own municipal Law as not so much as to be compared with it Fourthly that it be of greatest force in all cases where there is greatest need of equity and a good conscience whereof there is more to be found in that Law then in any other Law of Man Fifthly that it may order and determine all matters transacted and arising upon the Sea or contracted and done in forreign parts to which the Laws of the Land are most incongruous and less satisfactory to those whom they concern being chiefly strangers and of another Nation Lastly that if at any time the use and exercise thereof should be stretch'd beyond the bounds that are allowed it it should be penall but be check'd by such equal and indifferent Umpires as are parties in neither of both professions For where an incrochment is pretended to be made by either Law upon the other neither seems to be competent enough to judge the difference or to condemn the other Under these cautions to admit the use of the Civil Law into this Nation that in the doing of justice where our own Laws fail we may be sure to be supplied by another is no more then what the Romans themselves a renowned and wise people did by the Laws of other Nations and what other Nations do at this day by the Civil Law it self which they do practise and use as frequently as they do their own CHAP. III. That time and intervenience of fatal Accidents that has swept away so many States together with all their Laws and has quite abolished the Roman State it self has not yet been of force to abolish the Roman Civil Law but that it is extant still BEsides that this Law was at first derived from such Nations as in their time were renowned for Policy and Wisdome and was a chief means to convey the Romans to their greatness this also may be said thereof that can be said of no other humane Law besides That though it has been never seen that any Law has lasted longer then the State it self for whch it was first ordained but both have been buried in the same sepulchre together yet this Law is in being to this very day after the Roman State it self has so long laine intombed in its own ashes Jus Justiniani praescriptum libris non Civitatis tantùm est sed Gentium naturae aptatum sic est ad naturam universam ut imperio extincto ipsum jus-diu sepultum surrexerit tamen in omnes se effuderit gentes humanas Ergo Principibus stat etsi est privatis conditum à Justiniano sayes Albericus Gentilis a Lib. 1. De ju Bell. ca. 3. The Law that is set down in the books of Justinian is not the Law of one City onely but is the Law of Nature and Nations and is so throughout fitted to very Nature it self that when the Roman Empire was quite extinct yet the Law of the Empire after it had lain long as it were buried sprung up again and spread it self into all Nations Therefore now it is become a standing Law to Princes although made at first by Justinian for the use of
private men We know for certain that at the first erecting of Commonweals when some certain kind of regiment was once approved nothing was then further thought upon for the manner of governing but all permitted unto their wisdome and discretion which were to rule the Princes word beck and rule serving instead of all Laws who both in time of peace and war sent out their edicts from time to time as the present occasion required all depending upon their full and absolute power being themselves not bound to any Laws or Customes at all And that is it for which Pomponius b L. 2. Dig. De Orig. jur in princ writeth the Roman Common-weal to have been at the first governed by Regal power without use of any Law Justin c Lib. 2. saith of Athens that there was a time when Nullae civitati leges erant quia libido Regum pro legibus habebatur that the City was without Law because the wills of Kings were Laws And Josephus the Historiographer in his second Book against Appian desirous to shew the most honourable Antiquity of the Hebrews and of their Laws saith that Moses of all others was the first that ever writ Laws and that in five hundred years after the word Law was never heard of alledging in proof thereof that Homer in so many books as were by him written never useth this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Law d Bodin de rep lib. 6. ca. 6. It may therefore well be told us that we have no cause to marvail if we have no Laws at all transmitted unto us from those first times there being then no certain standing Law any where Yet I am sure afterwards when all people saw that to live by one mans will became the cause of all mens misery this did necessitate succeeding ages to come unto Laws established wherein all men might see their duties before-hand and know the penalties of transgressing them e Ut bonestorum ac turpium lex aeterna in mentibus unjuscujus que nostrum ab immortali Deo fit inscripta poenae tamen quibus improbi ab injuriosa facinorosaque vita avocentur in animis inscripta à Deo nullae fuerunt Bodin de rep lib. 6. ca. 6. and be more secure against the irregular passions of their Rulers whom they found by woful experience to be too apt to degenerate into Tyranny And yet they have not rested here neither but have committed the same to writing that their subjects might have them continually before their eyes and to transmit them to posterity also lest they that should come after should vary from those foundations on which the State was first laid and so hasten the downfall of the whole society Hence it has come to pass that the Laws of some certain people have been more famous then the Laws of others and the Authours mentioned with high praise and commendation Solon who made Laws for the Athenians and was accounted one of the seven Sages in Greece is highly commended for his great wisdome in making Laws both by Aristotle and Plato who proposeth him and Lycurgus the Lacedaemonian Law-giver as patterns for all such as shall institute Common-wealths and devise Laws for them Plato also prayseth the Cretensian Laws and Isocrates the Laws of Lacedaemon Zaleucus is upon record too for being a great Law-giver amongst the Locrians and Charondas has got himself a name for the Laws the Thurians had from him And so has Zamolxis Pythagoras his scholar for the Laws he gave the Getae And yet of all these Laws so much extolled and spoken of amongst the Learned there is not one extant to this day in any entire body I say in an entire body because of the Attick Law some fragments may be found which the industry of Petitus has collected out of several Greek Authours as Athenaeus Plato Plutarch Demosthenes and others where they lay dispersed which though they may busie Criticks and those that contemplate upon Antiquity yet are of no use to govern a State by nor to decide differences that arise in common intercourse As it is no small wonder then so does it adde much to the Honour of the Roman Civil Law that it has not been swept away by that common fate under which these and all other ancient Laws have perished but is the sole surviving Law at this time The preservation whereof is the more to be admired if it be considered how by the stormes and persecutions of several ages near it has been to be annihilated and quite supprest as all other Laws besides it have been For as the affairs of State have succeeded and as the Emperours themselves have been vertuously or vitiously inclined so has it fared with this study and the professours of it and indeed after the same manner with all other kind of learning Julius Caesar Augustus Tiberius Claudius Vespasian Trajan Adrian Antonius Pius and Marcus Antoninus the Philosopher Alexander Severus Constantine Theodosius and Justinian that were Emperours vigilant and industrious for the prosperity and weale of the Empire and designed nothing within themselves but actions of vertue and honour well knowing that their true interest lay in the maintaining of the Laws and government without which all things must needs run hastily into disorder and confusion they had the Lawyers of their times in highest esteem preferring them to the publick offices of State both of honour and justice and admitting them into their secretest and most important counsels and seldome was any Law made to which they were not call'd to give their counsel and advise Insomuch as it is written of Alexander Severus one of the before named Emperours that he never established any Law without the presence and assistance of twenty of the most renowned Lawyers and fifty other most judicious and acute men a Baldwin Prolegom ju Civil Forster bist ju civ lib. 2. ca. 77. But there were others that sate in the Empire of a far different nature and disposition who disdaining that their will how vitious and lewd soever should be circumscribed within the bounds of any Law and esteeming it a dishonour that Lawyers who were but private men should undertake to advise Princes or that any thing should be done in State but what themselves absolutely commanded some of them despised the whole Law and slighted those that taught it others proceeded so far in cruelty as to banish some and to put other Lawyers to death for so did Nero Commodus Caracalla Heliogabalus Septimius Severus But to persecute and take away their persons did not satisfie the fury of some implacable Emperours since others did succeed still in their room Therefore it was thought necessary by some that the Law it self should be so dispatch'd as it might be sure it should never renew or rise again b Annae Robert rer judic lib. 2. ca. 1. Caligula therefore put on a more hardy but a most barbarous resolution to burn all the books of the
Law that were then extant pretending that equity would run clearer and justice be quicker where the niceties and perplexities of the Law were gone Sed non fuit tam diuturnum ejus imperium ut efficere potuerit quae meditabatur nec passus est Deus rata esse hujus tyranni impia reipublicae perniciosa consilia But his reign did not endure so long as to execute what he did intend neither would God suffer the design of this tyrant that was so detestable in it self and so destructive to the Common-wealth to be brought to pass sayes Baldwine in his Prolegomena Notwithstanding how odious soever this intendment was and though it proved ineffectual in Caligula yet did Licinius the Emperour attempt to do the very same thing but God would not suffer such a barbarous act to be done by him neither sayes the same Baldwine So that as often as it is call'd to mind what extremities fell upon the Lawyers in the sufferances of their persons and how near the whole body of the Law it self was to be swallowed up and at once devoured and that from no forreign-enemy but from the Roman Emperours themselves who should have protected both it must also be remembred that those Emperours were such whose actions are hated and abhorred by all that read them and themselves stigmatized for cruel and unnatural tyrants and esteemed rather Monsters then Men. Let it be considered also that they did it to make way for their unbridled and tyrannical wills which they thought might be more licentious when there was neither person nor Law left to awe them And let it withall be spoken to the eternal honour of that Law that it stood flourishing notwithstanding after so many Emperours had vainly attempted to throw it down But never was it so near to utter extirpation as when a combined strength of barbarous people over-ran the Western part of the Empire For we read that in less time then the compass of eighty years Italy though anciently the strength and seat of that Empire was seven times brought almost unto desolation by the fire and sword of the Barbarians viz. First by Alarick King of the Gothes who sack'd Rome Naples and other places Secondly By Attila King of the Huns who razed Florence wasted Lombardy and not without much difficulty was diverted from the spoil of Rome by the intercession of Pope Leo. Thirdly by Genserious King of the Vandals who also had the sackage of Rome it self Fourthly by Biorgus King of the Alani in the time of the Emperour Majoranus Fifthly by Odoacer King of the Heruli who drove Augustulus the last Western Emperour out of his estate and twice in thirteen years laid the Countrey desolate Sixthly by Theodorick King of the Gothes called in by Zeno Emperour of Constantinople to expel Odoacer and the Heruli And seventhly by Gundebald King of the Burgundians who having ransack'd all Lombardy returned home again leaving possession to the Gothes And when the Gothes had reigned in Italy under eight of their Kings for the space of seventy two years they were at last subdued by Belisarius and Narses and Italy united once more to the Empire in the time of Justinian But Narses having governed Italy about seventeen years and being after such good service most despitefully used by Sophia the wife of the Emperour Justinus in revenge opened the passages of the Countrey to Alboinus King of the Lombards then possessed of Pannonia who coming into Italy with their Wives and Children possessed themselves of all that Countrey which anciently was inhabited by the Cisalpine Galls calling it by their own names Longobardia now corruptly Lombardy And afterwards in process of time they grew so mighty and spreading there that there are reckoned no less then twenty three Kings of that line succeeding one another in Italy and their Kingdome endured no less then 206 years Italy therefore being thus rent from the Roman Empire and the Imperial seat being quite carried out of the West and fixed in the East at Constantinople the power thereof came to be less feared and other of the Roman provinces were likewise assaulted For France after it had been long harrassed by the incursions first of the Burgundians and then of the Gothes was afterwards invaded and quite possessed by the Franks who having long hovered on the banks of the Rhene at last took advantage of the distractions of the Empire and ventured over the River under the conduct of their first King Pharamond and quite expelled the Romans and laid such a strong foundation of government there that they have in a constant and uninterrupted succession continued there ever since Spain did not long remain in subjection to the Romans neither out of which they were driven by the Gothes also who kept the quiet possession thereof very near three hundred years till the Moors and Sarracens dispossessed them who there reigned full seven hundred years As for Germany it was never wholly subdued by the Romans but what they had gained thereof the French Burgundians Almans and other Dutch Nations took from them till in the end the French prevailing over the rest extended their Empire over all the modern Germany chiefly performed by the valour of Charles the Great King of France created Emperour of the West by the people of Rome and Crowned with the Imperial Crown by Pope Leo the fourth with whom and his successours it remained above an hundred years till at last by alienating whole countreys from it some titulary acknowledgment onely excepted and by dismembring it into many Principalities and inferiour States and those made absolute and independent that great Empire came to be nothing in effect but magni nominis umbra the shadow of a mighty body a meer empty Title having no resemblance of the Roman Empire from the which in the person of Charles the Great it was quite divided England also that was made a perfect member of the Roman Empire being invaded by the Scots and Picts and the Romans being enforced to recall their Legions they had here for the defence of Italy it self then wasted and destroyed by the Barbarous Nations was relinquished and given up as a province that was to be held by the Romans no longer Honorius being at that time the Roman Emperour and Victorinus the last governour for the Empire in the Isle of Britain the Romans having been in it full five hundred years and their Laws also Thus the Roman Empire being rent in sunder it is easie to imagine that the Roman Laws which constantly attended the Romans whereever they went were also dissipated in the same tempest Laws and Government being like Hippocrates twins they laugh and cry live and die together For Conquerours never think their Conquests perfect till they have overthrown the ancient Government Laws and Customes and have put all into a new mould after their own way Neither is a people throughly brought under subjection to their new masters till they have utterly renounced all
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
lib. postum haered inst vel exhaered De exhaered Lib. De Inoffic testam are not capable to receive any practical use or application in those Territories Again the greatest punishment that the Romans inflicted upon simple theft was to pay four-fold where the thief was taken in the act it self or at least seen and cried out upon before he got out of sight i Culac lib. 11. obs 58. or if otherwise the theft was not so manifest to pay double the value of that which he stole and the reparation was made onely to the party damnified And if there were divers persons taken or discovered to be actors of one and the same theft they all underwent but one and the same penalty amongst them yet either of them might be sued for the whole k L. 21. parag 9. Dig. de furt But by the Civil Law it is not onely theft privily to take and carry away something that is anothers with an intent to defraud him of it but it is a theft also when one that has lent money upon a Pawn does employ the pawn to any private use of his own or when one that is intrusted with the safe keeping of any thing for me does use or wear it himself or when one has borrowed a thing of me for a certain use and he does otherwise imploy it or for a certain time and he detains it longer or carries it whither he should not and further then he promised to do l L. Si pignore 54. Dig. De furt parag furtum autem Iust De oblig quae ex delict Howbeit though Justinian will not have any theft punished with the loss of life or member m Novell 134. ca. fin vers pro furto autem yet he leaves High-way-men and breakers into houses and pyrates at sea to be chastised by death n Ca. Ult. No. 134. l. Dig. ad l. Cornel. de sicar for such acts as these are accounted more then theft by the Civil Law And for want of ability to make pecuniary reparation he will have all thieves punished at the Judges discretion o L. ult Dig. de furt l. 1. parag generaliter Dig. de paen corporally not capitally Surely then in a case of simple theft it were very improper to bring into argument or to cite any Text of the Civil Law De furtis in any State or Countrey when theft is look'd upon rather as a publick crime then as a private injury and is punished with death it self without any satisfaction made to the party Likewise Slavery as it was under the Romans not well suiting with Christian Religion which looks upon all men alike proceeding from one common parent and created for one and the same end is in all Christian Nations worn out and abolished Because it seems to be against Christian charity and that brotherly communion which we stand obliged by to one another to exercise such an absolute dominion over any that nature and religion has made our equals Those hard and severe Laws of servitude therefore which were in use amongst the Romans whereby slaves were excluded from the participation of any civil right whatsoever p L. 32. Dig. de reg ju and could not so much as marry nor have any estate of their own nor bring any action or complaint in their own name but as to civil communion were accounted as plainly dead q L. 209. Dig. de reg jur wanting in a Christian Common-wealth that subject matter for which they were first ordained they must needs fail also of their use and vigour and be esteemed incongruous and improper there These and such like instances do shew that the Law of a Nation must necessarily be fitted to the government of it and to the disposition of the people and such affairs as they use to deal in and that it is not possible that the Civil Law alone without the help of a peculiar Law proper to each Nation should be sufficient to steer and carry on all the affairs of every Nation so differing from and as I may say directly opposite to the Roman But what are a few instances of Laws abrogated or out of use and that sometimes but in part neither and which chiefly refer to publick Government to a whole Body of justice both distributive and commutative which that Law comprehends and takes in CHAP. VII No Municipal Law is sufficient to meet with the multitude and variety of cases and questions that will happen at Land at Sea and in forreign parts Which has caused so many Nations to make use of the Civil Law where it is proper and pertinent to their affairs to joyn with and help their own rather then to be without any Law at all and to be subject to the mischiefs of arbitrariness folly and violence IT is the practise of the whole world to adhere and stand to the dictates of their own Laws and in no case to admit of any other Rule either of Civil Law or acutest reason against that which their own National Laws have declared and directed to be done r Nee judicibus contra leges judicare nec de legibus in republica probatis ac susceptis disputare fas est Bodin de rep lib. 1. ca. 10. in fin But then it is visible to every discerning eye that the Laws that are made are oft times drawn so short and put into such obscure and ambiguous termes that it is but requisite some other Law or rule should be found out to supply clear and explain them And every where the body of the Municipal constitutions appears so narrow and slender and comprehends so little that the number of cases that are expresly resolved by Law is not by many degrees comparable to the number of those that do frequently and almost daily happen wherein the Law of the Nation has not made any decision at all Sir John Davis in his Preface to the Irish Reports does not stick to acknowledge this to be most true in the Municipal Law of England though in his praises of it he sets it above all the Laws of the World besides For saith he if the Rules and Maximes of the Law were a thousand times as many as they be indeed yet would they carry no proportion with the infinite diversitie of mens actions and of other accidents which make the cases that are to be decided by the Law How great need is there therefore to keep the Civil Law in England still that out of its store and plenty it may be instrumental to resolve those doubts and questions of right which as yet have no special Law of the Nation made for them Indeed as the humours and inclinations of men do differ and their occasions are divers and the ends they pursue various and the way and course they take to obtain them not the same so is it impossible that the actions that proceed from them should be like and uniform but must needs as
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
to determine them and are therefore driven to consult with the learned of that profession to whose skill it does belong not without some shame to themselves And it were to be wished that the onely effect of such mens ambition and confidence might rest there and that it did no greater mischief But it commonly falls out to be fatal to the interest of many which is taken away or prejudiced by their errour ignorance and sometime States also are embroyled in war and hostility each against other by their unskilful managery Ignorantia judicis plerunque est calamit as innocentis sayes St Austin y De Civit. Dei lib. 19. ca. 6. the ignorance of the Judge is frequently the woe of those that are innocent And indeed though it be nothing else but reason that does render a man capable and fitting to discuss and pronounce upon such questions yet it is not the vulgar common reason that nature does bestow upon every man but it is that reason which is gotten by art and study of the Law and of the rules principles of justice and which is improved and inlightned by a continual use and a long experience and which in truth is to be found no where but in students practisers and Judges of the Civil Law onely And yet there has been a strong conceit taken up but lately but yet very hotly pursued to have the same take effect by folliciting the state to make a Law to that purpose that a certain number of old experienced Merchants are much fitter and better enabled to sit upon the trial and examination of matters of forreign trade and negociation and of business arising upon or beyond the Sea then any students graduats or practisers in the Civil Law whatsoever supposing that if the Court of Admiralty were turned into a Court of Merchants both subjects and strangers would be better satisfied and trade go on and thrive much better Which project some Merchants have been the more emboldened to set on foot because they once prevailed so far as to get an Act of Parliament to be made in the fourty third year of Queen Elizabeth whereby all controversies that should from thenceforth arise upon any assurances made of any goods merchandizes ships and things adventured are committed to the hearing and trial of so many Judges whereof the Civilians are fewest and the Merchants make the greatest number They would have it conceived that none has understanding or skill enough to judge of the my sterie of their employment but themselves onely and that it is equity and a good conscience in a most summary and a compendious way and not the intricate and long Maeanders of the Law that is the fittest to arbitrate and decide their differences crying out for a quick dispatch that their voyages to Sea may not be obstructed They are jealous withall that the profession of the Law is but a design to enrich a company of men with the vexations and spoiles of others grudging that there should be a distinct profession made of the Law which secures themselves and all they have when every Trade and Handicraft hath the like In which suggestions if there could be imagined to be any either truth or soundness yet since the same may be made by other trades and professions as well as by the Merchants it would argue that there were by the State too great care had of them and too little had of others to assign the Merchants onely Judges out of their own order and not to grant the same priviledg to other Tradesmen also And yet to make a peculiar provision general and to erect so many Tribunals as there are Trades and callings was never as yet accustomed or put in practise by any Nation The Romans would not admit any Barterers or Traffiquers into the Camp or to any place of honour in the Civil Government z L. 12. Co. De Cobortat 1. viâ—â— Co. Negeciat ne Militent Paulus a L. 44. Dig. De aedilit edict gives the reason Id genus hominum saith he ad lucrum potius vel turpiter faciendum pronius est That sort of men are disposed to gain and unrighteous dealing Saint Chrysostome sayes no less as Gratian cites him ca. ejiciens Distinct 88. Mercator sine mendacio perjurio esse non potest No Merchant can subsist without lying and perjury And Demosthenes b Orat pro Phormione makes it a miracle si idem mercator industrius videatur probus if that man that is sedulous and intent upon Merchandizing can be an honest man And therefore the Thebans would not suffer any man to bear any honourable office in their Common-wealth that had not quite given over Merchandizing for the space of ten years c Arist Polit. lib. 3. ca. 3. in fin Surely their fear was that when those kind of men studied and endeavoured nothing else but amassing of wealth and getting of riches the Tribunal if they sate there might become a Mart and justice be exposed to sale Besides it is most frequent and ordinary for a number of Merchants to joyn in copartnership together and to employ one common and joynt stock beyond the Seas and yet few of the copartners known or taken notice of so that it may happen that a Merchant that sits on the judgment seat may be deeply concerned in the case in question and be judge in his own case and yet his interest not seen or discerned Again there is such a spirit of opposition reigns between the Merchant and the Mariner who is as useful and serviceable at sea as the Merchant can possibly pretend to be that if the Merchant should sit to judge the Mariner in time the company of poor Mariners might be so severely dealt with and kept with such short wages by the Merchant at whose pleasure and command he is that he will not care to serve and so navigation may be quite lost Nay further the controversies in the Admiralty are not between our own Merchants onely but many times between our own and other Merchants of forreign Nations Whereby if ours were Judges there would be given into their hands a great advantage to help and gratifie those of their own Countrey and rank and to oppress strangers Moreover what affinity is there between buying and selling which is the onely skill of the Merchant and judging of the nature and right of contracts injuries debts agreements offences and other accidents and emergencies happening upon the Sea or in forreign parts which they so covet to gain unto themselves Which knowledge and faculty is not to be found in the depth of the Ocean nor to be obtained by Travail but is gotten by serious contemplation and a long study and perfected by the practise of a mans whole life I write not this to debase the true worth nor to lessen the repute of Merchants They are a people that enrich the Nation as well as themselves and for the
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
flow And therefore when the learned of that profession sate in divers Judicatories of England distribution of justice was ever after the same rules in such cases wherein no special Law was or could be made to guide them Secondly it cannot be devised how such cases as neither the Law nor the custome of the place has specially provided in can be well understood and receive a true and right judgment without the help of that profession All other learning besides that is taken up in the consideration of things that are clean of another nature and does not consider what dealings there are between man and man subjects and forreigners and what justice and equity does require in each of them as that exactly doth As for vulgar and common reason it is of use in matters that are obvious to sense and to the first apprehension and which are ministerial to the maintaining of life and livelyhood But where the discursive faculty must be employed and great reasoning and a long experience is required as in the things we now speak of ordinary reason if we presume upon it will sooner lead us into errour then be any advantage towards a solid and right judgment Nay so unable are the common capacities to discern and judge of them that it is usual for the Judges of the Law themselves to be at a stand and to spend some time in study and counsel ere they can resolve some questions that do arise so intricate and perplexed are they Thirdly it is the nature and practice of all States and people besides their own proper Laws to use such as are common to all other Nations and men and so no strange thing to cherish two Laws in one Common-wealth as some do too vainly imagine Omnes populi qui legibus moribus reguntur partim suo proprio partim communi omnium hominum jure utuntur sayes Gaius f L. 9. Dig. De just jur and Justinian g Parag. 1. Inst Deju nat gent. civ All people that are guided by any Law or custome at all are guided by a Law common to others as well as by that that is peculiar to themselves for if the Law of a Nation be not universal enough as indeed none is but that in the ministration of justice there will every day arise such questions which the particular Law has not touch'd upon if there be not some other Law to flie to there must necessarily ensue either a failer of justice as to those cases which would draw on a self-revenge or else the setling them must be arbitrary and at will which a people will not long endure Besides there is no Nation in the World that abounds with all things There is no people so well fortified but that they may stand in need of the assistance of others either in matter of commerce or to joyn in opposing a common enemy who watches to destroy them both When as therefore the imploring of this forreign help or the transportation of our native commodities to those that can supply us with theirs which we have not drives us to a necessity of dealing with other people it is substantially needfull also to order such dealings by to have some Law or rules generally known and unquestionably just to both There being therefore a necessity of another Law besides the particular Law of each Countrey the Civil Law has been chosen by most forreign States because it has from the time of the Romans run through all Nations and has been so generally applauded and allowed of by all that now at last it has purchased to it self the honour to be styled Jus Gentium the Law of Nations or jus commune the common Law of all Europe because it hath more in it of the Law of Nature that is common to all mankind then any other Law of Man Fourthly the Civil Law is of such large extent and so vast a comprehension that nothing can fall out wherein the ministration of Law equity or any part of justice may be necessary which either the words of that Law or the reason thereof will not decide For indeed the Romans through the Universal power they had over a great part of the World and their conversing several wayes with the rest were brought acquainted with the nature and state of all Humane affairs of what kind soever Fifthly it provides not for the welfare and interest of one Nation onely as a particular Law does but contemplates and takes care for the general affairs of all people For it treats of all manner of differences arising between one State and another of the Laws of war and articles of peace of leagues truces reprizals rights and priviledges of Embassadours and redemption of prisoners of precedencies due to Princes of the freedome of trade to forreiguers and of the restraint thereof upon just and weighty reasons of the free and common use of the Sea and how it may be interdicted or limited of all contracts in and about shipping or transportation of damages or injuries done at Sea of Customes Wrecks Pyracies Salvage or contribution of assurances made upon ships or goods of the carrying of Armes Money or Men to furnish or strengthen our enemies of the conditions given for the surrendring besieged places by whom they may be effectually made and how far they may be extended whether change of governour and government can dissolve amity friendship and respect between us and other States These and such like are matters of concernment to other States as well as to our selves and are not medled with by Municipal Laws but fall under the learning of the Civil Law onely whereby it must needs be accounted a most noble and usefull science the profit thereof being not confin'd to one Territory but communicable to the whole society of Men. Sixthly the precepts and rules of this Law are but the dictates of natural reason and which command the assent and approbation of the most judicious when first propounded And so satisfactory and convincing is the justice thereof both to subjects and strangers of other Nations that it silenceth the complaints of those who are thereby condemned their own reason and consciousness concurring in that condemnation Seventhly it is the use of the Civil Law that holds up the entercourse and correspondence of nations each with other for where the rules of judging controversies as oft as they do arise are certainly known and allowed of there any Prince or people will be strongly invited to Trade make Leagues intermarry send their Embassadours and communicate all other offices of love and friendship whatsoever because they know what dealing they shall have from them and what justice to expect at their hands But where illud justum est quod est utile that is where advantage does rather set the rule for justice then right reason or where it must be administred by prescriptions of their own devising which none can discern any equity or reason in nor understand
and government and is not barbarous has a certain peculiar Civil Law under which it lives and is governed yet out of a general belief that no other humane Law whatsoever is to be compared with the Roman Law does it still as anciently it did carry away the name and title of The Civil Law from them all as being the exactest and perfectest of all other Laws in the World besides CHAP. XI The Art and knowledge of doing the purest right and most natural justice is laid down in the books of the Civil Law and how it came by degrees to that perfection that now we see it in THe Roman Civil Law has not the praeeminence of other Laws in title and denomination onely but it is thought also that in the books thereof there are laid up such treasures of humane Wisdome Policy Justice Equity and natural Reason that the art of doing equal justice and the doctrine of true and uncorrupted right is taught by them onely Jus said Celsus t Lib. 1 Dig. Dt just ju est ars aequi boni Law is an art informing what is just and good And Jurisprudentia said the Emperour u Parag. 1. Inst cod est rerum divinarum atque humanarum notitia justi atque injusti scientia The science of the Law teaches what is the right both in Holy and Worldly things and what is just and unjust both speaking of the Roman Law so was it accounted then and no otherwise is it accounted now too For Whereas the learned of the world do reckon upon three supreme Arts and Sciences Divinity Law and Physick which do so mainly support and hold up the whole frame of Man that without them this goodly linke of things here below must needs dissolve and fall away to nothing by the Art of Law it is far from their meaning to comprehend the Municipal Law of any Nation which is fitted for the climate of one people onely and serves for the exigencies and occasions of the State and varies as times and occasions and the dispositions of the men do vary which commands rather then teaches which has an eye more to what is profitable to the publick then what is just and equitable and which deals more in the great advantages of State then in setling private interests or composing differences between man and man for this is the true state of the locall constitutions of the several and respective Nations and Kingdomes of the World each of them being far short of deciding those many doubts and questions that must needs happen in great variety between their subjects whilest they trade and deal together But they understand some more Universal Law that is commonly embraced and allowed of by the best and most potent Nations that is full of pure equity and true reason and being grounded upon dictates of nature and common reason is unchangeable whose method is to teach and instruct by certain rules and principles orderly and handsomly digested as well as to command and order and which amongst the frequent and various dealings of men does leave few cases that can happen undecided And it is evident that by this Art of Law they intend no other but the Roman Civil Law for although the Laws have been a making almost ever since Rome was first built and were ordained as questions did arise from time to time and under several forms of government Rome being sometimes under the rule of one sometimes of more and sometimes of the whole people and grew at last to an infinite multitude and lay in a confused and indigested heap void of all order or method Yet at last Justinian when he came to the Empire did set upon that opus desperatum as he calls it in his Proaeme to the Institutes that desperate enterprize of disposing them into that admirable order that now we see them in and indeed was the first that laid the foundation for the building up of the Art and Science of Law By his means it was that after the best and most usefull Laws were selected and chosen out of a vast and tumultuous heap they were distributed into Titles and the Titles into Books every Title contains those Laws that are proper and pertinent to that principal subject whereof that Title treateth sometimes by definition opening the true state and nature of it sometimes if it be various dividing it into its several kinds and branches also subjoyning a resolution of the several cases and questions that come under it rather by the still voice of right reason and as all men by their natural instinct and practical experience would agree to determine them then by sovereign command or imperial will After this method is that principal part of the Law the Digests otherwise called the Pandects composed which Duarenus cals the Magazine and Store-house of all equity justice and learning and the artificial framing thereof Cuiacius x Parat Dig. Mandat does so much admire that he judges them to be fools and illiterate and not to understand neither what Art is nor what the principles of Law are nor how well the Pandects are made that should require any other Art then what is to be found in them Tully sayes Alciat had long and sollicitous thoughts de jure Civili in artem redigendo of making an Art of the Civil Law but Justinian in the Digests hath done that work But to make this science of the Law yet perfecter Justinian hath also added his book of Institutions for no other end but as himself testifies ut sint totius legitimae scientiae prima elementa the introduction to the whole Law they being indeed the summe and substance of it and he directs it cupidae legum juventuti to those that shall desire to enter upon that study intending it as a help to the younger students onely whereby they might be enabled after the reading thereof the better to undertake the more difficult and voluminous books of the Law for he considering that the other volumes of the Law would prove too hard and tedious for young beginners and so it might come to pass that the whole study of the Law might be quite laid aside and utterly perish for want of some to study the same he commanded this little book of Institutions to be made whereby young men might be invited partly with the briefness and partly with the easiness thereof to the study and profession of it Here then is a great body of Law orderly and methodically disposed and a book of praeliminary Institutions also to make the entrance into it easier and more beneficial But there are two Volumes more of this Law also the one collected by Justinian as the Digests were and that 's the Code the other ordained by him as the Institutions were and that 's the Authenticks otherwise called the Novell Constitutions for the first is but a bare collection of such decisions as the Emperours that had sate in the Roman Empire even
World Therefore what high applause soever may be given to the local constitutions of any people as questionless they are all useful within their proper territories yet it is a truth unquestionable that in the account of other Nations whatsoever the case or question be be it between their own subjects so that their own National Laws and customes do not specially order it or be it between them and other Princes or their subjects the Civil Law is 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 Jurisconsult is pronunciatae quae in certum redactae ordinem dijudicandi rationem nostr is Jurisperit is 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 Law 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 a bolished 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 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
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-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
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
decrees against it 130. How it came into that forme order and method which now we see it in 167. what a multitude of writers there are in t' is Law fol. 170 Civil Law is not proper to govern every State by fol. 140. 51 Cities three above all others most famous for the study of the Civil Law Rome Berytus Constantinope fol. 122 Civil Law has not of it self any authoritative force to binde as a Law in any Nation but is and must be of force every where as it contains true and solid reason to which all men are to submit fol. 126. 138. 157 Cases that do happen are to be all setled by some rule or other fol. 145 Civil Law perfected as it is at this day very sufficient to resolve all cases that can happen 15. 53. 147. 155 171. and is the true Art and Science of Law fol. 166 Canon Law and Civil Law have been at variance which should spread most 163. 185. yet both of them have been admitted by Princes for several uses 125. 185. that they are not inseparable as some do imagine 184. Canon Law is but the Civil Law applied to the use of the Church and church matters and is in most things the same with the Civil 163. 186 orders divers things meerly temporal under pretence of being spiritual fol. 186 Causes that were tried by the Civil Law before the government changed why they should be tried by the same Law still 178. and in the Epistle D Defence legal ought not even in capital matters be denied a subject against his King fol. 7 Dead bodies not to be arrested nor touch'd in their graves fol. 80 E Exarchate of Ravenna after Constantinople was the seat of the Empire was still governed by the Civil Law fol. 118 England had the Civil Law read publickly in it as soon as it was restered in Italy by Lotharius fol. 125 Ecclesiastical men and Ecclesiastical matters have been and may be regulated by temporal Princes fol. 186. 162 Ecclesiastical men have through favour of Princes rather then of right been suffered to order some causes which are meerly temporal fol. 186 F Fraud so detested by the Civil Law that sometimes it did dissolve the whole bargain sometimes it did enjoyn the whole true value to be paid where one was deceived in more then half the worth 12. never suffered to bring any advantage to the deceiver or to any one else 13. most detestable in those that the Law does most priviledge when deceived fol. 13 Forreign States not to be judg'd by Municipal Laws fol. 146 Forreign States why they do judge so much by the rules of the Civil Law fol. 153 G Great men are not suffered to assume or protect the controversies or litigious suits of others fol. 62 Guardians may husband but not sell the estates of their pupils fol. 106 Government was at first without any Law at all fol. 110 Government being changed the Laws seldome remain the same fol. 116 Government howsoever changed yet the Civil Law is of use fol. 157. 176 I Ingratitude does make a free gift revocable from him that is ungrateful fol. 84 Italy was seven times brought almost to utter desolation in less then eighty years fol. 114 Justinians body of the Law was compiled at Constantinople and kept out of Italy 500 years together 118. but prevailed altogether in the East ibid. Italy when it was possessed by the Gothes and Lombards some parts of the Civil Law were in use there still fol. 119 Justinian is by somes made instrumental in suppressing the old books of the Roman Laws after his collection was finished but without just ground fol. 121 K Killing in ones own defence ought to receive no punishment 6. nor killing by chance ibid. A King by the Civil Law is no more absolved from the observation of the Law nor has any looser power over the lives liberties or goods of his subjects then by other Laws fol. 19 Kings being driven out of Rome their Laws were never in use more fol. 103 L Law what properties it ought to have and that chiefly it ought to agree with reason 1.2 seq 46. it is but a determination of the Law of Nature 4. it must not onely not cross the first and chief principles of nature but not such neither as are any way though remotely depending on them 8. to be fairly and candidly interpreted and without any fraud 13. may profitably containe the very maximes of Reason 21. common capacities no good judges of Laws 25. and who are and what must be considered to judge rightly of them ibid. the severity of them to be imputed to the demerits of men 26. though not so rational as others subjects must acquitss in them till they be altered fol. 31 Law of Nations is that which orders all affairs between Nation and Nation 59. to be known out of the Civil Law fol. 61 Laws of the twelve Tables the ground-work and foundation of the Civil Law fol. 104 Laws of all other Nations are gone and extinct with the States themselves excepting the Roman fol. 110 Laws of some people more famous then others fol. 111 Lotharius the Emperour was the restorer of the Civil Law when it was as it were extinct in Europe fol. 122 Law forreign not to be preferred before the proper Law of the Countrey fol. 125. 140. 144 Law of no Nation so sufficient but that another Law is needful fol. 128. 144. 154 Law of government proper for the state it self is necessary in every Nation fol. 129. 140 Laws of all Nations too imperfect for the multitude of cases that do happen fol. 52. 144. 145 Laws not to be measured by their abuse or execution fol. 28 Legal matters are to be judg'd by Lawyers onely fol. 25. 151 Lawyers none in forreign parts but Civilians fol. 152 Lawyers of the latter age more learned then those before them fol. 160 Two Laws in one state not inconvenient fol. 120. 154. 182 M Municipal Laws must be in every Nation 129. 140. and they to be preferred before any other Law or reason fol. 103. 125. 140. 143. 144 Municipal Laws are too short and scanty to take in all cases that do arise fol. 144 Merchants no fitting judges to trie and decide Sea causes fol. 148 Men how much they differ in their tempers and so in their actions fol. 25. 41. 53. 145 Monarchy is no looser government then any other fol. 19 Military questions to be regulated by the Civil Law In the Epistle Municipal Laws have no degrees taken nor Lectures read in them any where but in England 152. 153. all that is good in them is taken out of the Civil Law fol. 98. 164. N Nations not so abounding in all things but that they do or may stand in need one of another fol. 155 Nations abroad do mainly practise the Civil Law in matters between man and man fol. 128. 133. 159 Nations abroad are best satisfied by justice done according to the rules
of the Civil Law fol. 134 Nations in their dealing with one another must have some common Law to guide them fol. 59. 146. 155 National differences not to be debated but by the Law of Nations and the reason of the Civil Law In the Epist and fol. 65. Natural Laws cannot be repealed fol. 49. 174 O Offences though the same may be punished with more severity in one State then in another fol. 26 P Parents could not give away nor forfeit their whole estate from their children by the Civil Law except in case of Treason fol. 9 Proceedings legal how rationally ordered by the Civil Law fol. 15 President or example no rule to judge by fol. 38. 65 Promises if serious though without consideration are to be performed by Civil Law fol. 87 Pope of Rome did make edicts against the Civil Law thereby to advance the Canon Law the better 124. yet he does make use of the Civil Law fol. 163 Parents were bound to leave a certain part of their estate to their children fol. 9. 141 Penalties added to Laws argue the power but not the justness of them fol. 158 Punishments for the same offence may justly be greater in one place then in anothes fol. 26 R Reason was given to be mans guide in all his actions 2. it is a beame of the divine light 5. the principles thereof all of them not to be discerned by all 21. is sometimes covered with falshood and is much darkened by other natural corruptions 23. not a more deceitful thing then it 24. then most evident when generally allow'd by all 30. not so requisite in publick Laws as in private 33. private politick and that of Nations to be gathered out of the Civil Law fol. 53 Romes greatness and flourishing does demonstrate the excellency of the Laws wherewith it was governed fol. 98 Rome was as it were the City of the whole World fol. 98 Romes greatness to be imputed rather to their Laws then Arms. fol. 99 Romans very greedy of honour in pursuit whereof they did many gallant acts and especially made such good Laws as they did fol. 100 Romes universal rule a special design of God for the good of man which was the cause that Christ was born under that government fol. 102 Romans when they conquered a nation did not disdain to take such Laws from them as they found to be very honest and rational fol. 107 Roman Emperours some favourable to the Civil Law others bitter enemies against it and the professours of it fol. 112 Robbery in the High-way or at Sea or with Burglary punished by death at Civil Law fol. 142 Roman antiquities would have been better known if the old books of the Roman Laws had been preserved fol. 121 Reason vulgar and ordinary not suffient to judge of legal matters fol. 147. 154 Romans through their universal sovereignty dealt in greater variety of business then any Nation fol. 52. 155 Rome came under several formes of government and yee some part of the Civil Law was under all of them fol. 157 Ransome paid for another though without his directions is recoverable from him fol. 91 Roman Laws do onely carry away the name of The Civil Law fol. 166 S Society Civil what the benefits thereof be fol. 56 Succession to intestates goods how regulated by the Civil Law fol. 84 Stoppage is an allowed way of payment at Civil Law fol. 89 Ship or goods when saved by the pains or loss of another the Law will allow salvage or other recompence for it fol. 90 Slavery and servitude out of use amongst Christians fol. 143 Sea matters to be judg'd and tried by Civilians onely fol. 148 T Torture as it is allowed by Civil Law justified fol. 72 These by Civil Law punished by pecuniary satisfaction fol. 142 V Vniversities of England why they practise the Civil Law fol. 161 Vniversities of the World teach no other nor give degrees in any other Law but the Civil Law fol. 152. 153. 172. W Wrecks by the Civil Law restored to the owners and go not to the King fol. 21. ERRATA The Reader is first desired to take notice that the Printer by the absence of the Author and being not acquainted with the quotations of Civil Law has from fol. 4 to fol. 23. in divers places in the Margent erroneously set down the book for the Law printing lib. instead of l. which stands for lege When therefore the Law is quoted out of the Digests or Code within that compass instead of lib. read l. as in fol. 4. in the Margent litt l. for lib. 1. r. l. 1. Fol. 4. in the marg litt n. for Minfinus r. Minsing fol. 19. lin 24. rigorem r. vigorem l. 33. for is not so r. is not to be fol. 20. l. 22. for rules r. rulers fol. 71. in the mangent litt r. for lib. 57. r. l. 57. fol. 75. l. 10. for need not r. l need not fol. 158. l. 20. for they r. it fol. 175. l. 33. for natural r. unnatwal fol. 181. l. 16. for as r. us The End