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 deductions 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 ripenesse 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 enough 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 lex 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 Politic 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 commise rit clement ùs est puniendus Menoc cas 326 l. 2. de Arbitr 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 Laws A justification whereof we may finde in the Roman Law it self Nonnunquam evenit sayes Saturninus g L. 16. dig de pâ—en parag 10. ut aliquorum malificiorum supplicia 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 fault 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 provinciis 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 omnium quae à majoribus constituta sunt ratio reddi potest l L. 20. dig de legib A reason cannot be given for every thing that our Ancestors have
relief of equity in any case which is specially even with all its circumstances settled by Law how rigorous soever the determination of the Law be for written rigour shall be preferr'd before unwritten equity t l. 12. parag 1 Dig Qui à quib man Vetantis legit major est potestas quà m aequitatis câ—jus speciem obâ—endere suae cupiditati cuique liceret Bodin de repâ— lib. 1. ca. 8. Clementiores lege judices esse non oportet Judges ought not to be merciful above that that the Law it self is But it lets in equity where the Law is general and the case in fact is accompanied with such special circumstances that in all likelihood the Law never took it into consideration which if it had it would and must have made an exception in that case For as Aristotle sayes aequitas nihil aliud est quà m supplementum ejus quod lex praetermisit equity is no more then a providing specially for that which the Law is silent in Neither does it allow of a wandering imaginary or unrestrained equity but what is either written and authentick from the Law it self or what is manifest and evident to wise rational and the best discerning men I mean those that are skill'd and well studied in the Civil Law and not your vulgar rational men by deductions and reasonings from the Law given in the like cases Non possunt omnes articuli sigillatim aut legibus aut senatusconsultis comprehendi sed cùm in aliqua causa sententia eorum manifesta est is qui jurisdictioni praeest ad similia precedere atque ita jus dicere debet Laws and decrees cannot hit every circumstance but when their determination is certain in any one case by that the Judge may do right in other cases that are like it u l. 12. Dig. De Legib. As it treats the living with all gentleness and equity so it extends its humanity and tender consideration to the dead too and is indulgent to those that lie in their very graves And therefore it will have the heirs and executors of a deceased person to be so free to bury the dead and to pay all such funeral respects as are due that it will not suffer any action to be brought or any demand to be made of any thing that was owing by him that is dead by the space of nine dayes x Novell 115. ca. 5. Nor can any legal process be served upon those that are accompanying the corps to burial y l. 2. 3. Dig. De in jus vocand And so far is it from conniving at the barbarous inhumanity of those that for money owing by the deceased will arrest and stay the body from burial till payment made or full security given that it inflicts a sharp punishment upon such transgressours for they do not onely quite lose that which they labour to recover by so foul an action but also forfeit as much in value to the deceaseds heirs and a third part of their estate is confiscate and they make themselves infamous z Ut defunct seu funer cor non injur ca. 5. And if there be such a custome which I have heard is pretended to by some-parishes within this Nation and practised also that when a dead corps is carried through towards some further place of burial it may be staied upon the way and not suffered to proceed till some fee or toll be paid it is such a custome which the Civil Law is against For that Law expresly provides ne corpora aut ossa mortuorum detinerentur aut vexarentur neve prohiberentur quo minus via publica transferrentur aut quò minus sepelirentur that the bodies and bones of the dead be not staied or troubled nor that any restraint be to hinder their passage along the high-way to and fro or to obstruct their burial a l. 38. Dig. de Mortu Infer And generally without exception either of place or person sayes directly that no such see or toll shall be paid b Graec. Cod. de relig sumpt fun l. 15. In nullo quopiam loco vectigal ab aliqua persona pro corporibus ex uno loco in alium translatis praestetur No fee shall be paid by any person in any place for the removing of a corps from one place to another And surely if the first ground from whence that custome came were known we should be willing for Religion sake to lay it down For our superstitious ancestours believing that the prayers of the living were useful to the souls of the dead were wont as often as they carried forth any dead body to be buried to stay in every convenient Town through which they went to receive the prayers of the devout people for the soul of their deceased Brother In recompence whereof it is probable that something was in charity bestowed for the poor of that place or to some other end Which at first proceeding from bounty we have no cause to turn it into a duty especially to pass an indignity upon the dead and when we bestow not the prayers as they did nor indeed can think them profitable as they applied them Neither is the Law so careful to conduct the dead quietly to their graves as it is severe in punishing those that shall disturb their bodies there or shall demolish or deface their sepulchres The place where the dead body lies is esteemed Religious and the injury done to the body it self or to the monument thereof is accounted no less then sacriledge x l Co. De sepulch viol If it be done riotously and with Armes the crime is capital if without it is to be considered whether the body be pull'd out of the grave and then it is capital to those of the meaner sort but others of better rank are banished or condemned to work in the Mines But if the sepulchre be onely demolished or defaced a penalty is paid to the Exchequer and good reparation given to the next heirs and divers other punishments besides inflicted y Tot. Tit. Dig. Cod. de sepulch viol Nay though the body be interr'd in another mans private ground though it does not allow of the act but will order the body to be removed or the value thereof to be paid to the owner of the soyl yet it will not suffer the owner of the ground of his own head to unbury or take away the body propter reverentiam manium quia corpus sepultum non est inquietandum for the honour due to the Ghosts of the dead and because dead men once interr'd ought not to be disturb'd but either the Prince or the chief Priest must give authority or warrant for the same z l 8.39 Dig. de relig sumpt fuâ— Finally the debt contracted by the deceased in the time of his sickness or about his burial shall be paid before all other debts whatsoever a l. pen. Dig. de relig sumpt fund 3. Co
the straitest rule and the best guide to decide it by and the art and skill to dispense equal right and exact justice to all men is to be learnt from the study of no other Law of mans creation but that Law onely Nihil aliud est jus Civile quà m sententiae quaedam à veteribus Jurisconsultis pronunciatae quae in certum redactae ordinem dijudicandi rationem nostris Jurisperitis ostendunt says Machiavell himself in his Prooem to his books de republica The Civil Law is nothing more then certain dictates or principles declared by the ancient lawyers undoubtedly meaning Papinian Vlpian Scaevola Africanus Pomponius Neratins Celsus Marcianus and the rest whose names are prefixed before their several Laws in the Digest which being put into good order do instruct others in the wayes of administring right and justice And hence is it that in all the Universities throughout the World I will not except England the Law that is studied the Law that is publickly read and taught in their Schools the Law wherein degrees are taken is the Civil Laws CHAP. XII An Answer to the main Objections that are now adayes made against the continuance of the Civil Law within this Nation THese things that have been thus truly delivered to the praise and commendation of the Civil Law being clear and evident our Adversaries the Anticivilians will not so vainly contend as to oppose them or to detract from the worth of that learning which has been so generally owned by all the World nor was ever brought into any question since it was first propagated and made known to other Nations besides the Roman They will as they must admit and acknowledge that the Civil Law doth more abound with natural reason and equity then any other Law of mans establishing that it has spread further into the World then any Law ever did and has been more studied and adorned with the writings of the learned of all Nations and languages then any Law that yet has been that the profession thereof is of so large a compass that it takes in and treats of all the affairs contracts and dealings of the World that Princes freely entertain it into their Judicatories and minister right and justice onely by the learned and Graduates of that profession that the principles of solid wisdome and best Moral Honesty are taught thereby that it has described and set down the duties of all people of what relation soever more amply and more to the pattern of nature and right reason then any other Law has done Yet this free and ample acknowledgment notwithstanding they will not admit the use and practise thereof in the ministration of justice within this nation to be cōvenient or necessary suggesting to themselves certain reasons strong and important as they pretend why that profession how learned and wise soever in it self yet since it is become useless as to the people of this Nation it cannot conveniently as our affairs are now changed be continued here any longer as they imagine Which opinion how well it is grounded it is meet and requisite we should in the next place examine for except it may be maintained that it is also usefull and very necessary for the Common-wealth under which we now live and no way or at least in comparison of the great benefits thereof not considerably inconvenient all the other excellencies and rare qualities that can be spoken thereof will turn but into a speculative and ayrie discourse and will move nothing towards the begetting of a publick settlement thereof within the Nation for they will say all rules and instructions that are useful to inform the understanding and fashion the manners and actions of private men or of Princes as they are men onely may not presently be fitting or necessary to regulate and direct a State in the carrying on of publick business Let it therefore be added for a further commendation of the Imperial Law first that as it containes the dictates of nature the conclusions of right reason and as it sets forth the natural and essential properties of such humane things contracts and dealings of men whereof it treats of all which without comparison the greatest plenty lies recorded in the writings of the Civil Law I say as it containes all these it is so essentially necessary to the well ordering of all States and the common affairs of men that it cannot be abolished through any change of Law or government whatsoever but at the same instant the peace and well-being of that State and people must needs vanish and dissolve also For can the Sun fall from the firmament and the world not be at an end or the soule expire and the body not be void of life or motion No more can the splendour of that people endure any longer where the sun of natural equity and justice has left to shine amongst them nor can the body of a Common-wealth grow prosperous or flourishing that is fallen from the soundness of right reason which is the very soul and spirit of all Law and government for in this it is no otherwise with a whole society of men then it is with one individual person If a man shall be unnatural and cares not to observe true right and just reason in his dealings with other men he presently renders himself odious and detestable to all men and it is lookt upon as dangerous to have any dealings or to be familiar with such a person So if a State which is a collective body of men when they are appealed to for common right either by their own people or by other Nations shall administer that for right which crosses natural justice and the notions of right reason it exposes it self to scorn and obloquie it gaules and exasperates their own subjects and makes their neighbours stand at a distance with them and the condition of that State must needs be dangerous and unsure having lost their reputation both at home and abroad Onely here is the difference and it is a sad one The danger of particular injustice determines in some detriment of a few but national injustice drawes after it ofttimes the ruine and confusion of many Nations Besides the impressions of nature and reason are so strong in man and so great a part of his essence that they cannot be quite expunged or deleted in him neither can they be so long discontinued but they will at length have their return Naturam expellas furcalicet usque recurret and inclinations and affections thereunto will appear even when the contrary is performed So true is that of the Civil Law Jura naturalia sunt immutabilia y Parag. 11. Inst De jur nat geut Civil The Laws of nature and the common reason of nations are unchangeable and are not capable to be repealed For if it were once admitted that these Laws were alterable what strange contradictions and sensless incongruities would follow And how would man be ravished as it
is the most frequent and onely mention almost of such a thing This very term to Swear you will scarce any where find it in the Old Testament but either under the word Hiphil that is the Imperative commanding conjugation in respect of him that gives the oath or under the word Niphal that is the passive suffering conjugation in respect of him that takes the oath And under the same rule are the Greeks amongst whom Orcos is the name of the oath which almost solely the holy Ghost acknowledges in the New Testament In that word is a kind of straitning necessity and as they say an exigengy no less then there is in the word Orcos for from the same word comes both that is of straitning Thereupon comes that common Proverb War and Oaths are voluntary evils and that they may be good they ought to be pressed and expressed as St. Augustine of Oaths sayes wittily either by the Authority of him that gives the oath or at leastwise by the hardness of his heart that believes not So that it is a sin either to swear or to make war except it be at least in some manner exacted and upon some and no light cause Therefore that it may be required or rather that it ought to be the very force of Nature the very force of the term it self evinceth it But whether from the Magistrate this is the second branch Yes surely from the Magistrate So the Divines of old Not onely every body but every soul is to be subject to the Powers Rom. 13.1 Therefore the Powers have power to commit the body to custody by imprisoning it lest it escape And so likewise the soul to commit that to custody by laying an oath upon it lest it should have any subterfuge by which name God himself hath most fitly called an Oath the Bond or prison of the soul Num. 30.13 by which the soul may as it were be tyed up and being so tyed up may be bound to answer appositely and readily But yet it comes nearer If it be lawful for the Master to force his servant to take an oath as Gen. 24.3 Abraham did if a father to his son as Jacob to Joseph Gen. 47.29 if a brother to a brother as the same Jacob to Esau Gen. 25.33 By how much better right is it lawful for the Magistrate to do it to his Subject whose command is more excellent then any other command I adde also about the right settling in marriage of a son if that be lawful as Abraham to his servant of chusing a fitting place of burial as to Joseph of passing away the right of Birth-right as Esau and in private causes I adde also of the least concernment if compared with the publick Then surely by better righr may the Magistrate do it in the common cause of the Commonwealth whose Interest is greater then any other Interest And that is provided for by Gods Law Exod. 12.8 in express terms in the case of a Pawn saith God let them come before the Magistrate In which place the Magistrates are named by the name of God himself and not by any name but by that very name which is taken from the force of an oath as though he should say Let them come before the Oath-givers or those who when they give the Law in Gods stead in his Judgment and in his Name may require his Oath to be taken That is Gods Deputies Psal 82.6 in Gods judgment 2 Chro. 19.8 the Oath of God Eccles. 8.2 therefore to the Magistrate It is lawful to the Magistrate I say as well Ecclesiastical as Civil Before him that is the Ecclesiastical Judge by Law the Woman is commanded to purge her self in a case of suspicion of breach of Wedlock bond Num. 5.19 Before him that is the Temporal Judge by law the man is commanded to purge himself in a cause of suspicion of breach of Social promise or Contract Exod. 22.8 The practice whereof we see and the practice of the Saints is the Interpreter of the Commandments of the Ecclesiastical Judge in Ezra who required an oath in a Matrimonial cause Ezra 10.5 Of the Temporal Judge in Nehemiah who forced an Oath in a cause of Usury Neh. 5.12 Neither hath the pious and religious Magistrate onely right to do this but the Heathen Magistrate too and that to Gods people Zedekiah gave his Oath of Allegeance to Nebuchadnezzar 2 Chron. 36.9 though forced he gave it and rightly too if we believe Ezekiel and afterwards by a sacrilegious boldness he attempted to break it he scaped not unpunished for it Ezek. 17.13 Lastly I adde that this was not lawful to do to their own people onely but also to guests and strangers living within their Territories either for trafficking or any other cause In which regard Joseph now become Vice-Roy of Aegypt imposes an Oath upon his Brethren in a case of Treason suspected though both by Law and by Nature they were Canaanites Gen. 43.3 therefore hence it now appears that it is lawful to impose an Oath and that it is lawful also to the Magistrate But whether is it lawful to do it to the party that is the party guilty or defendant the third thing I propounded Nor can that be called into question Exod. 22.8 He to whom the Pawn was concredited is the party guilty or defendant Num. 5.19 The woman suspected by the jealous husband to have wronged his bed is also the party guilty or defendant but to each of them is this oath to be given nor is it lawful for them to decline it In a few words I will summe it up Whether one deceitfully keeps his neighbours goods or perfidiously deteins his friends goods or restores not to the owner his found goods when he requires them Levit. 6.3 or as it seems to me in any other crime for it is mentioned indefinitely 1 Kings 8.31 in whatsoever he shall sin it is lawful for the Plaintiff or Agent to impose an oath upon the party that is the guilty or defendant or to lay an oath upon him as it is in the Hebrew phrase nor is it lawful for the guilty or defendant party to refuse it whether it be imposed by the Agent or Plaintiff or by the Magistrate Indeed I cannot deny but we are fallen into such times that it may be expedient to impose the oath upon the party Agent or Plaintiff and not onely upon the Defendant for it may happen that they may both prevaricate that is the party Agent or Plaintiff by calumniating and the party guilty or defendant by Tergiversation But if we would take the Law from Heaven from the holy Writ to the party guilty or defendant 't is more necessary to be given Examples are thereof Scarce will you find in the Law an oath laid upon the Agent or Plaintiff but very often may you find it upon the party guilty or defendant Moses renders the reason of it The actor who for the most part is the party