The law of laws: or, The excellency of the civil lavv, above all humane lavvs whatsoever. Shewing of how great use and necessity the civil law is to this nation. / By Ro: Wiseman, Dr of the civil law.

The Law of Laws : OR , THE EXCELLENCY OF THE CIVIL LAW , Above all other HUMANE LAWS WHATSOEVER .

Shewing of how great use and necessity the CIVIL LAW is to this Nation .

By RO: WISEMAN , Dr of the Civil Law .

Ea verè praestabilis est scientia , quae in foederibus , pactionibus , conditionibus populorum , Regum , exterarumque Nationum , in omni denique belli jure & pacis versatur .

Cicero .

That is truly an excellent knowledge , which is conversant about Leagues , agreements , the several constitutions of People , Kings , and forreign Nations , and lastly , in the whole Law of War and Peace .

LONDON , Printed by J. G. for R. Royston , at the Angel in Ivy-Lane . M.DC.LVII .

The Epistle to the Reader . Reader ,

IF this Book were set forth in any other Language , for Forreigners to read , I were unavoidably driven to give them an account why I had put my self upon so superfluous and so unnecessary an undertaking , as to extoll and commend that , whose worth and merit is owned by all the World , and which every where shines so brightly , that it cannot be obscured by any , either Tongue , or Pen.

For it is very well known to them , that the Civil Law is the issue and product of that great and mighty State , the Roman Empire , that led so many Nations and people captive by their Wisdome , as much as by their Valour ; that was once the School of all Moral Honesty and goodness , and the stage , whereon the whole variety of humane affairs was represented .

Neither need I tell them , that what through the prosperous success of that State , for which it was ordained , and what through the natural Equity that is to be read all along in it , and its being fitted for the general affairs of Europe , the Laws of most of the Europaean Nations ( who indeed all of them anciently were subject to the Roman Government ) are but as copies drawn from that original , borrowing that lustre of goodness they have , from it ; and where their particular Laws faile , thither their Judicatories resort to be supplied .

They cannot be ignorant , That though every particular Nation has some few Laws of their own , proper for their occasions , government , and people ; yet no where beyond the Seas is there any profession or science of Law , but this ; nor any Law accounted the Law of Nations , but the Civil Law onely : That time , practise , argument , and applying it to the several affairs of so many Nations where it has been used , has made it so perfect and so sufficient a body to decide all cases by , that are between party and party , and do not concern the publick government , that they stand in need of very few Laws of their own making ; and without it no Laws they can make , would ever be able to serve their turn .

To those therefore that make such continual use of this Law in their Courts , and who suffer none to sit as Judges , nor plead at their Bars , but such as have been brought up in that faculty , and who strive to imploy those onely in all transactions between themselves and other Nations : to them , I say , to praise and applaud this Law , that is dignified by them so many several wayes , is so little needful , that it were almost impertinent .

But to make known to the people of this Nation to whom it is rendred now so contemptible , how excellent it is in it self , how rational ; what a general approbation it has had with other Nations , and how very useful it may be to the publick welfare of this Nation divers wayes , it is a work so seasonable and necessary , that it may be done without either Apology , Preface , or reason premised ; and is no more then the present state of things calls for .

For when it is considered , what an account it has been in amongst us for many hundred years together ; how many causes , Civil , Ecclesiastical , Maritime , and Military , it dealt in how the jurisdiction thereof ran through the whole Nation ; how very little it was beneath the profession of the Common-Law it self , how many professours and practisers it maintained , and how much it did enrich them ; what a number of students it encouraged ; what coercive power it was intrusted withall , and the many Courts the employment thereof lay in : And when we see , that now the causes thereof are cantonized , and like a spoyl divided ; some carried to the Courts of Common-Law , some to the Court of Equity , others sent into the Countrey , some left without any rule or regulation at all , and nothing left entire to the Civil Law ; and when the solid reason of that Law is crowded out by vulgar reason , the professours thereof scattered , the study thereof discontinued , the very Law-books for want of use here , all transported beyond sea to other Nations , and all coercion taken away ; It is so much worth the enquiring what the ground of this great change should be , that to be silent thereat were great stupidity .

That the fall of the Ecclesiastical jurisdiction might be a reason to suspend the exercise of that profession in some causes for a time , till it were again setled , I admit . But why it should not under this present form of Government ( if authority think fit ) be restored again , as to a civil regulation of those very matters under the Civil Magistrate , no satisfactory reason can be rendred . I am sure , it can neither be rational , nor convenient , that they should be carried from the Civil Law , which was the known , established , and practised Law in those matters , unto the conizance of those , that have neither Law , nor rule , nor skill to try them ; especially when the so doing does inevitably draw after it the certain ruine of that whole profession .

It is therefore very-well worthy the most serious consideration of those that sit at the Helme ; That , since there must be a triall of those matters still , and a gain attending thereupon to one or other , ( which is the Game every body hunts after : ) Whether the Publick is more concerned , that the profit of such conisances should flow into the purses of others , no way apt or skilful , then go to the maintaining and keeping up of such a learned profession , which this Nation cannot be without .

And certainly , whensoever we see that profession laid aside ( which for the publick good , I trust , I never shall ) we shall find this Common-wealth of ours made very much inferiour and unequal to other Nations , with whom ( as it is an Island , and now become an active one ) it has and must have many wayes to do . In other things , as in strength , riches , and alliances , we contend for advantage and superiority with them , why should we then suffer them to over-match us in wit , dexterity , skill , knowledge , wisdome , policy , reason , or judgment , which that learning above all other , and experience together gives them ?

The dealings that we may have with them , as they are not a few , but innumerable , even as many as there are things in the World to deal in : So some of them are of highest moment and consequence also ; As , Right to Kingdomes or Provinces , by Donation , 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.

WESENBEC . 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 mores fiunt , neo facere nos posse credendum est , sayes Papinian . a 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 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 nois●… a Ship that is not driven but by the naturall and ordinary co●●●● of the Water : For when the Wisdome and Power of God first bestowed upon Man Vnderstanding and Reason , he intended them as guides and directors in all the actions of his life , and thereby to discerne what was good and what was evill , by that very light that shined within him . When therefore the commands of a Nation are irrationall and senselesse , that light is as it were put out and extinguished , and Subjects are made to obey rather like Beasts then Men.

And therefore Tully said , as he is quoted by Carbo , c c Tractat. de legib. lib. 6 , disp. 2. Nos legem bonam à mala , nulla alia ratione nisi naturae normâ dividere possumus , We cannot discern a good Law from a bad , otherwise , then by comparing it with the Law of Nature . And therefore he will have it to be justorum injustorumque distinctio , ad illam antiquissimam & rerum omnium principem naturam expressa : a rule discriminating that which is just , from that which is unjust , delineated and drawn forth by the old . Originall of Nature , and sayes it is the highest or chief reason grafted in Nature , commanding those things which are to be done , and forbidding the contrary .

And again : d d Lib. 2. De Inven. Initium juris à natura profectum , deinde quaedam in consuetudinem ex utilitate rationis venerunt , postea res à natura profectas & à consuetudine probatas legum metus & religio sanxit : The beginning of all Law did proceed from Nature it selfe , but afterwards there were certain things which were by evidence of Reason found necessary , and thereupon brought into common practise ; and at length , the fear and reverence of Laws did settle and enforce what had been so taught by Nature , and Custome it selfe had allowed of . So that the Act of the Law , is but to see that effectually observed and executed , which Nature hath ordained , and which the common Reason & Custome of men doth declare to be just , equal , and necessary .

And sometimes the same e e Lib. delegus . lib. 1. Tully , styles Law the very force of Nature , the Vnderstanding and Reason of a wise Man , the rule of right and wrong . And f f Lib. 3. de rep. defining Law as it ought to be , rather then what generally it is , he terms it right reason , spread over all people , durable , everlasting ; which , as fire burns every where alike , is not one at Rome , and another at Athens , one now , and another hereafter , but being the same and unalterable , serves for all times , and runs through all people , which began not when it was first written , but when it first sprung forth from Nature .

Plato g g In Min. de rep. & de legib. will also have it a reasonable rule , leading and directing men to their due end , for a publick good , ordaining penalties for them that transgresse , and rewards for them that obey . And Isidore , who requires other properties in a Law , requires this of Reason too ; for in his h h Lib. 3. cap. 3. Etymologies he sayes , Lex erit omne quòd ratione constiterit , duntaxat quòd religioni congruat , quòd disciplinae conveniat , quòd saluti proficiat ; A Law shall be that , which may stand with Reason , agree with Religion , suit with the education and dispositions of the people , and be beneficiall to the publick welfare . With i i Prima secundae qu. 97. Ar. 1. Aquinas also , Lex humana est quoddam dictamen rationis , quo diriguntur humani actus ; Humane Law is a dictate of Reason , by which humane acts are steered . And again , k k Quest. 91. Art. 4. Lex nihil aliud est , quâne quaedam rationis ordinatio ad bonum communt , ab eo qui curam communitatis habet , promulgata : A Law is nothing else but a transferring or applying of Reason to the common good , manifested to all the people , by him who hath care of the Common-wealth . The Civil Law speaks the same thing , l l Lib. 1. Dig de Legib. Lex est commune praeceptum , virerum prudentum consultum , A Law is an universall and generally known precept . Notitia aequi & boni à natura omnibus indita , as m m Lib. 1. Gothofred explains it , ingrafted in Man by Nature , and the result of sage and understanding men .

All n n Minfinus Inst. de jur . Nat. gent. & Civ . in princ . Civilians without any contradiction doe consent and agree , that the true Law of a State is but Determinatio juris naturalis , a declaring or expounding in such particular cases or accidents , as most frequently happen amongst men , what the Law of Nature intends by its generall precept ; or it is a rationall distinguishing upon the Law of Nature , making it to be of force in some cases , not of force in others , with such directions for observing the same , and kindes of punishment to the offenders , as the wisdome of each state shall judge most rationall , and most convenient . Not to Steal , not to commit Adultery , not to Kill , Nature it selfe taught in generall : but who should be said to Steal ; who to commit Adultery ; who to Kill ; what proof should be sufficient to convict a Man of these crimes ; who might be the accusers , how and in what manner , and before what Judges the offenders should be proceeded against ; what pun shments they should suffer , and after what time no accusation for them should be heard , because the Naturall Law did not teach in particular , therefore the Law of every State doth determine them ; which as it is done in pursuance of the primary precepts of Nature , so must it be done too with the soundest judgement and reason , having an eye to the matter of the precepts , to the nature of the people , and to the state of the Common-wealth it selfe . And these severall particulars being thus determined and put into a Law , they adopt to themselves the name of a National Law . o o L. 6. Dig. de Just. & Jur. Jus Civile , sayes Vlpian , est , quod neque in totum à naturali jure vel gentium recedit , neque per omnia ei servit ; Itaque cùm aliquid addimus , vol , detrahimus juri communi , jue proprium , id est , Civile intelligimus . The Law of a people is that , which neither doth wholly estrange it self from the Law of Nature , or of Nations , nor doth strictly follow them in all things neither : when therefore we adde or diminish ought from the Vniversal Law , we make it thereby a peculiar Law , and give it the denomination of a Civill , or Municipal Law ; so that the Roman Law will have no other materiall difference to be between the Law of Nature , and the Dictates of Reason , and the Law of a State , but that what was before common and universall in notion , is now by distinguishing it into cases , by fitting it with proper circumstances for more ready execution , and by moulding it into a form , appropriated to peculiar use .

The Cansn Law that enumerates all the essentiall properties of a Law , doth exact also that it be honest , just , and agreeable to Nature : p p Car. 2. Dist. 4. Erit lex honesta , justa , possibilis , secundum naturam , secundum patriae consuetudinem ; loco temporique conveniens , necessaria , utilis , maenifesta quoque , ne aliquid per obscuritatem in captionem contineat ; nullo privato commodo , sed pro communi civium utilitate conscripta : A Law shall be honest , just , possible , according to Nature , suiting with the customes of the Countrey , agreeing both with place and time , necessary , usefull , and also plain , lest through obscurity it may ensnare ; nor made for private advantage , but for the common good of all the people .

Thus by the judgement of all , Ratio est anima legis ; Lex tune laudatur , quando ratione probatur : Nature is the Fountain , and Reason doth animate and make the Law , and gets it the praise and acceptation . This indeed is a lightning and raye of the Divinity ; Ratio nihil aliud est , quam in corpus humanum pars divini spiritus immersa , sayes q q Epist. 66. Seneca : It is the stream and dependance of the eternall Law , which is God himselfe and his will . Quid natura nisi Drus , & divina ratio toti mundo & partibus ejus inserta ? What is Nature but God , and Divine reason inserted into the whole world , and immixed in all the parts thereof r r Lex nihil allud est , nifi recta , & à numite Deorum tracta ratio , Cicer. Philip. 11. ? The Law of Moses in his Decalogue is an outward and publick Coppy , the Law of the twelve Tables and the Roman Law , the morall instructions of Divines and Philosophers , the advertisements and counsells of Lawyers , the edicts and ordinances of the best Princes are no other but draughts and particular Pourtrayes of it .

If therefore there be any Law , that varieth from this first and originall Mistresse , commanding where she forbids , or forbidding where she commands or allowes , it is a monster , falshood , and error . As for example , Adversus periculum naturalis ratio permittit se defendere . Itaque si servum tuum latronem insidiantem mihi occidere , securus ero , sayes s s Lib. 1. Dig. Ad l. Aquil. Gaius . Natural Reason gives a man license to defend himself against any danger , therefore I am in no danger of the Law , if I kill thy Servant that lyes in wait to mischief me . Again , Si quis percussorem ad se venientem gladio repulerit , non ut homicida tenetur ; quia defensor propriae salutis in nullo peccâsse videtur , sayes Gordian the t t Lib. 2. Co. Ad l. Co●nel , de Sicar . Emperor : If a Man shall strike him dead that comes to destroy him , he shall not be punished as a Man-slayer , because the preserver of his own life offends in nothing . That Law then surely is very unnatural , that inflicts forfeiture of any part of his estate , though it requires not either the whole or his life , upon any person , for slaying another in his own just and necessary defence ; when as if he had not done as he did , he must have been in perill of losing his own life .

It is as prodigious to naturall equity and good reason , that a man that is unhappily peradventure doing of a lawful act , nor purposing the least mischief to any person , but by meer chance author of anothers death , should be subject to any punishment or losse whatsoever . Mera infortunia nec paenam mereutur , n●c ad restitutionem damni obligant , sayes uDe Ju Bill . Lib. 3. cap. 11. sect. 4. Grotius . No man deserves to be punished , or is bound to make any reparation for pure casualties . If an arrow being shot at a Beast or at Buts , lights upon a Man and kills him ; or a stone cast over an house , or an arme of a Tree being cut , and falling , where seasonable warning is given to all that are neer to take heed , be the cause of anothers death , such casuall Homicide is not in any kind punishable . x x Lib. 5. Co. ad l. Corn●l de Sicar sect. 5. Inst. de l Aquil. A Law therefore that punisheth a man for such adventure or misfortune , is not a just or rationall Law , being indeed repugnant to the Law of God , which protected such persons , and appointed them a City of refuge to flye unto ; y y Numb. 35.15.22 . Josh. 20.3 . Deut. 19.5 . for such an act happening in such sort , seemeth to be the work of God himself .

It is a cruelty also , which Nature and Reason abhorreth , that a King , who ought to be as a Sheepherd and Guardian of his people , should have an established liberty to endanger his Subjects lives and liberties , by a criminal accusation brought against them ; and yet they be denyed the natural liberty and freedom to defend themselves , by bringing that Evidence , and assistance of Counsel , that may serve to clear them . Indeed all kind of awfull submission and reverence is due to the Prince from his Subject ; but that is no way impeached by a modest and fair defence . And therefore by the Civil Law , in any matter of complaint that was brought by the publick Exchequer , whether Criminal or Civil , the defendant had his full defence most free . Defensionis facultas danda est his quibus aliquam inquietudinem fiscus infert z z Lib 7. Co de Jur. fisc . : Liberty of defence ought to be granted to those , whom the Exchequer brings into any trouble . And whosoever is impeached as a Malefactor , that Law is so indulgent to him , till he be convicted , that if he be in Prison , the Magistrate is to make known by open Proclamation , what day he intends to hear him ; Ne hi qui defexdendi sunt , sayes a a Lib. 18 Sect. 9. Dig. de Quest. Paulus , subitis accusatorum criminibus opprimantur ; quamvis defensionem quecunque tempore , post ulante reo , negari non oportet ; adeo ut propterea & differantur & proferantur cust●diae : Lest they which are to make their defence , be too suddenly brought to tryall by their Accusers , and thereby destroyed : Howbeit the Court shall not deny to hear their defence at any time , when themselves will ask it ; for which cause , the Prisoners may have a certain time set at first , and then if cause be , further day also may be given . And though , when the person accused is not under restraint , if he shall not appear to answer the accusation , some time within a year after Summons had , his estate is irrecoverably lost , and forfeited to the Exchequer , and for that he shall never be heard more b b Lib. 4. Dig. De requir . vel absent . damn . : yet as to save him from personall punishment , neither the expiration of a year , nor the efflux of any time shall barre him , but that he may still be heard to defend himself c c l. 2. co. De Requirend . rei . : For self preservation is so d d Hoc & ratio doctis , & mos gentibus & seris natura ipsa . praeseripsis , ut omnem semper vim à corpore , à capite , à vitaesuae propulsarent . Cic. pro Mil. natural , that a Law that is set up to infringe it , may justly seem to fight against nature .

These Laws therefore , and such like , as doe thus crosse and encounter common sense , and natural Reason , are no fitter to be styled Laws , then the dead Carkasse of a Man , that is dest tute of the essentials of Life , Soul , and Reason , can be called a Man . And therefore Tully did set down the truth , when he taught , e e L. 1 de legib. Eos qui perniciosa & injusta populis jussa descripserint , cùm contra fecerint quam polliciti professique sunt , quidvis potius tulisse quam leges . They that did promulgate to the people pernicious and unjust Laws , since they did clean contrary to that that they alwayes promised and professed to doe , they might better be thought to enact any thing else then Laws .

And though it be never or very rarely seen , that any State doth suffer any law to passe them , which doth directly crosse the chiefe and fundamentall Laws of Nature , or which opposes the first and main principles of common Reason , as to give direct licence to Atheisme , Theft , Adultery , Homicide , invading of the rights or possession of others , Breach of Faith or Covenants , Rebellion against Magistrates , Disobedience to Parents , abandoning of Children or such like , ( for this were too odious and detestable , and would presently dissolve all society and government : ) Yet the care of a Legislator doth not determine here , but must extend further also , if they will have their Laws to be of one complexion and likenesse , and all to agree with the Lawes of Nature , and the Dictates of sound Reason ; for to each of those first and fundamental principles , there are divers inferiour things and actions appertaining , which doe mediately or immediately depend upon , and refer unto them , standing some in a nearer , others in a remoter distance from them ; but all so knit and conjoyned with the first and main principle , to which they are subordinate , and do as it were wait upon , that if any of them be setled by a Law , or practised otherwise then they ought to be , the first and great principle also by consequence is violated & broken , or at least an occasion offered to violate and break it : and therefore the Legislators care must be to settle these inferior and subordinate things also in such wise , as that they may not encounter with any chief or fundamental rule of Nature , to which they may have any reference or application . For instance , That Parents should educate their Children , and supply them with maintenance , is a Law proceeding from Nature . And though no humane Law was ever found , that discharged Parents of such their duty , yet if a Law shal leave it free to a Parent when he dyes , to give away all from his own Children to a stranger , or to dispose of all to one child , without making any provision for the rest ; is not that fundamentall Law of Nature thereby consequentially infringed and broken ? By the Roman Law therefore which does strictly tye all Parents to this Duty f f Go. de Alend . Liber . , there is such a proportion due to Children out of their Parents estates , when they dye , as the Parents , but upon certain causes just and true , cannot give away from them , which was the third part , if there were four children or under ; or half of the whole substance , if there were more , amongst them all ; the rest they might freely give away to whom they pleased . And this the Law made so sure to them , that though the Father for some offence did suffer Death , and his Estate was confiscate , yet half the Estate should goe to the Children notwithstanding : Ne alieno admisso , graviorem poenam luerent quos nulla contingeret culpa ; g g Lib. 7. dig . de Bon. damuat . Lest the Fathers fault should prove a sharper punishment to them that offended not , except the fault were Treason , in which case , for terror to others , they lost all : Vt charitas liberorum amiciores parentes reip. redderet h h Lib. 8. dig . quod metus caus . sect. fin . ; That their very affection to their Children , knowing how greatly they were like to suffer after them , might make them timorous how they so offended .

Likewise , if the Parent shall make no Will , nor make any disposition of his Estate in his life time , dut dye intestate , if , when one of the Children hath entred upon his Fathers Estate , though by lawfull Aathority , the Law of a State shall adjudge the whole Inheritance unto him , and not admit any of the rest of his Brethren and Sifters , how many soever they be , to divide or to have any share with him , neither in reall Estate , nor personal ; surely this is a contradiction to that Original Law of Nature , that bindes Parents to provide for all those that are of the same Flesh & Blood with them ; for what themselves cannot doe being dead , their Estates ought to performe . The Civil Law therefore , making no difference between Land and Goods , nor between Eidest and Youngest , nor Male and Female , divides the whole Estate , reall and personal , equally amongst the Children . Ratio naturalis quasi lex quaedam tacita , liberis parentum haereditatem addicit , velut ad debitam successienem eosvocando , sayes i i D. l. 7. Dig. de Ben. damn . l. 7. Dig. si Tab. testam . null . s . 1. Paulus : There is as it were a secret Law made by Nature her selfe , that settles the Parents Estate upon the Children , calling them to succeed as in their proper right . And , Omnia quae nostra sunt ; liberis nostris ex voto paramus , sayes k k Lib. 50. Dig. de B●●● . libert. sect. 2. Tryphoninus ; All that we doe possesse , we professedly destine to our Children . Neither does it give one childe any advantage against the rest , that he has first lawfully got into possession , for he has but thereby made himself subject to be sued by the rest , to come to a Partition with them l l Tot. Tit. dig . & Co. Famil . ercise . ; for Action to divide , being once brought , the Judge is told by m m Lib. 25. sect. 20. Dig. Eod. Paulus , what he must doe ; Index familiae erciscundae nihil debet indivisum relinquere ; The Judge of a Partition ought to leave nothing undivided . A Law then that forbids Parents to cast off the care of their Children , as nature does , does not agree with Nature , nor with it selfe neither , if it does not as the Civill Law does , make its other constitutions suitable , and put it out of the power both of Parents and Children , by fraudulent wayes to make their grand Law of Nature , and Dictate of Reason fruitlesse and of no effect .

Likewise it is not sufficient , that the Law of a State has not declared any thing against Honour , Reverence , and awful respect , which Nature it selfe has enjoyned Children to yeild unto their Parents , except it does dispose and order the actions and demeanour of Children answerable to that very duty ; for if a State shall give Children a freedome to bring like actions and accusations against their Parents as against others , or to Marry without their consent , or to give in evidence against them , or shall not punish them when they offer violence to their Parents , or speak reproachfully against them ; the reverential respect so due by Nature to Parents , will soon be turned into contempt and scorn . The Civil Law therefore has not onely said , Filio semper honesta & sancta persona patris videri debet n n Lib. 9. digo obseq . parent . & pairon . p ae●land . ; The person of a Parent ought to be reputed by a Child as Venerable and Religious : But in order to this , it also has forbidden Children to Marry without their Fathers consent first obtained , which if they doe , the Marriage is made void o o Lib. 18. Dig. de vit. nupt. l. 7. Co de nupt. Inst. cod . in princ . . Likewise , Si filius matrem aut patrem , quos venerari oportet , contumeliis afficit , vel impias manus ei infert ; praefectus urbis de lictum ad publicam pietatem pertinens , pro modo ejus vindicat : If a child shall uttter approbrious words of Father or Mother , whom he ought to have in veneration , or shall lay wicked hands upon them , the Magistrate shall punish it as a publick offence , and as the quality thereof deserveth p p Lib. 1. Dig. de obseq . sect. 2. . It will not suffer Children to bring any criminal accusation or exception against their Parents , whereby their credit may be empaired q q L. 2. dig . cod . ; nor commence any suit at all against them , except special leave from the Judge be first gotten r r Lib. 2. & 13. Dig de injue voc. . Nor put a parent to the Oath of calumny , s s Lib. 7 sect. 3. dig . de obsequ . as may be done to all parties besides , that are in judgement , lest it should thereby be suspected , that he does calumniate with his own Child . Nor shall a Child be heard as evidence against his Parent , though he offers himselfe to be a witnesse against him t t Lib. 6. Co. de Test . . Again , the Lawes of all States professe to abhor all fraud , deceit , and circumvention in all contracts and dealings amongst men , as Nature it selfe and the common voice of Nations has forbidden ; for but upon confidence of honest , upright and fair dealing , no trading , intercourse , or correspondence could be secure . Yet if the Law of a State shall onely admonish all that buy , barter , or exechange , to be cautious and wary at their own peril , and when they be cheated with any unsound & corrupted Merchandise , or in the price beyond all measure , if it shall leave them helpless & without relief : Or if a State shall give licence or toleration to debtors to passe & convey away all their Estates , thereby to deceive their Creditors , so it be done before action brought : or if practises of collusion may be used , or feigned actions brought under counterfeit and fictitious names , and in colourable and fallacious forms , on purpose to defeat others of that right which was intended them , or to delude the Law , by transferring a right thither , whither lawfully it ought not to goe ; where then will honesty , truth and faithfulnesse , so requisite in all affaires acted amongst men be ? And therefore the Civill Law does not onely say in the generall , In omnibus contractibus bonu fides requiritur ; And , Naturalis suadst aequitas , ut ex bona fide contrahatur : u u Schenidw . Inst. de action . s . estionum . nu. 6. All Contracts must be made with honesty ; and natural Equity invites us to honest dealing . But it comes to particulars also , and will allow of deceit no where : for if a man be deceived in the price of a Commodity bought , supra dimidium , above half the value of it ( for so far as to half , inequality of value is born with for avoiding endless challenges , Et nt omnis obligatio emptionis & venditionis semper sit in incerto , that all uncertainty in buying and selling may be removed x x l. 2. co. de rescind . vend . ) the seller at his election shall be enforced either to take his commodity again , or restore to the buyer what he has taken above the true worth of it . Immodicae laesio excedens dimidium justi pretii , gravior est quàm ùt toleretur : an immeasurable prejudice , which exceeds half the just value , is more than can be born withall . But if the fraud be not in the price , but does infect the contract or act done in another kinde , the Judge has commission either to disannull the thing , or to take such order that the decriver may not gain by his evil subtilty , y y l. ● . Dig. fiquis ●aut . l. 134. s . 1. di . de reg. jur . 2. nor the other lose by his simplicity and weakness z z l. 155. Dig. de reg jur . .

If a diseased or unmerchantable commodity be sold , and the defects thereof not visible , the Civil Law will compel the seller to take it again , and give the buyer his money back : a a Dig. De aedi● . edict . Or if a seller shall tell the buyer , that the thing sold is thus and thus qualified , by which , the buyer that cannot see whether it be so or no till some good trial had , is induced to give the more , and afterwards it is found clear otherwise , the seller is to give so much back , as the thing is lesse worth by those qualities which are wanting . Nam ea quae commendandi causa in venditionibus dicuntur , venditorem obligant , nisi palam sint : Those qualities or conditions , which any thing that is sold is commended for , must bee made good by the seller , except they bee such as the buyer may be by his own view certified , that they are not so good as they are spoken . b b l. 43. Dig. de contrab , erupt . Likewise if a man shall sell Land , House , or any thing else , to which he cannot make a good title , but is recovered by another , though he never undertakes to warrant it or make it good , yet emptorem indemnem servare debet , he shall save the buyer harmlesse , because it doth naturally arise without any special covenant out of the bargain it self , that the buyer shall either quietly enjoy the thing , or at least be indemnified by him that sold it . c c Lib. 11. Dig de act. empt. 1.6 . co. de evict . And if a man shall pass away his Estate to defraud his Creditors , leaving nothing , or not enough in himself to satisfie his just debts that he had contracted before ; the Civil Law , without distinguishing whether it was done before action brought , or after , revokes it out of the hands into which it was put , and reinvests the debtor in it , and makes it as liable to his debts , as if no such thing had been done . d d Dig. quae in fraud . cred . Neither does it onely disallow but punish also those that do prevaricate and help the cause of their adversay , by waving their own just pleas , and wilfully failing to prove what they may , and in shew undertook to do . e e Di de praevaricat . It will not suffer any such combination or practise of colluding to 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 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 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 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 i Reg. 8● . 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 k Lib. ●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 l Tot. Tit. Inst. de action . , or a general one m m Dig : de praescript . verb. & infact . action . , relieving by ordinary remedies ; or if those fail , by such as are extraordinary n n Tot. tit . Dig. & lo. de in int●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 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 , Order , Decree , or Judgement , but against those onely , that were first call'd to see it done . And therefore every judiciall act done without warning given , is accounted surreptitious , and declared void and null p p Marant spec. part 4. Distinct . num. 10. . The effect of which nullity is , that as to him that was absent and not heard , the Cause is to begin againe ; Judicatum tantum inter praesentes tenet , sayes q q Lib. 47 dig . de re Judic . Paulus ; Those that are in Court onely , are bound by that which is decreed .

Neither shall a man lose his right for want of witnesses to prove it , for if the matter was transacted between him and his adversary onely , so that his adversary being brought upon his Oath , must need confesse the whole matter ; the Law will enjoyn a man to answer , though against himself , and to his own prejudice , rather then that the truth shall suffer , and wrong shall prevaile . I may take the same advantage also , if my witnesses live afar off , or that I would avoid the trouble and charge of examining them , or that my adversary will confesse more to my benefit , then my witnesses will be able to prove . And he that is cast by his own confession , is more powerfully condemned , then he can be by any kind of evidence whatsoever ; r r Confessio est probatro probata ; Neque ullae est probatio illa major . l. 1. Dig. De confess . Vulteii Ju isp . Roman . lib. 2. cap. 2. for that cannot be subject either to mistake or falshood , as other testimony may be .

But witnesses are then of use , if he denies what I charge upon him . Who if they be farre distant , or through Scknesse , Imprisonment , or other occasions be not able to come , the Law hath a ready way to relieve me , for I may have a commission to examine them where they live . It were too great an oppression that I must lose my right , because my witnesses cannot be brought to the Barre . Insomuch as if they be travailed into forreign parts , I shall have Letters of Request granted me to the Magistrates of the place where they remain , praying them to examine them upon the matter in issue , and to transmit their testimony ; else regularly by the Civil Law , they are to be examined in open Court , that it may be seen whether their countenance does not contradict what their tongues declare s s Lib. 3. Sect. 3. dig . de Test . & Gothofred ibid. .

Neither does the Civil Law require direct and positive proofs onely , but it will admit of strong and forcible presumptions also , that by arguments of conjecture drawn from one thing to another , brings forth the certainty of the thing in issue . Par est probationi praesumptio , quod quidem ad effectum attinet , quiae pro probatione habetur , sayes t t P●rat . Dig. de prob . & praesumpt . num. 14. Wesenbeck ; Presumptions are equivalent to proofes , and there is the same effect in both . And if a presumptive proof were not as effectual to carry the right , as any other kinde of evidence ; in vaine did Menochius bestow his paines , when he made that very long and most elaborate Treatise of that subject onely .

But yet no proof , whether it be presumptive onely , or whether it be direct and evident to the thing it selfe , is sufficient , except it be made out by the testimony of two witnesses : for by that Law , Testimonium unius est testimonium nullius ; One witnesse and no witnesse at all is all alike . And so Constantine the Emperour hath very emphatically declared in these words : Manifestè sancimus , ut unius omnino testis responsio non audiatur , etiamsi praeclarae curiae honore praefulgeat u u L. 9. Colde Test . : We expresly require , that the testimony of one witnesse be not taken , although he hath the stamp of highest dignity upon him , for it were hard and dangerous , that a mans whole right and interest of what value soever it be , should depend upon the testimony of a single person onely , who , if he be honest and sincere , yet through want of good observation , or by a failing memory , may report the matter of fact otherwise then indeed it was . Yet in matters of small prejudice and value ; the Civil Law does allow of the testimony of one witnesse , if the Plaintiffe himself can swear , the thing in demand is true ; for in that case , his averring upon Oath as much as his witnesse hath sworne , doth supply the testimony of another winesse x x Mincing . cent. 1. observ. 68. .

Howbeit the Civil Law hath a further care yet , for before it will suffer any mans right to be judg'd away from him , it will see not onely a competent number of witnesses , but they must swear of their knowledge too : y y L. Neque Natales Co. de Prob. and it does cast a very considerate eye upon their reputation and quality also . It gives way therefore to the proving of any remarkable exceptions that can be brought against them . Testium fides , sayes Callistratus , diligenter examinanda est : Ideoque in persona eorum exploranda erunt inprimis conditio cujusque ; utrum quis decurio , an plebeius sit ; & an honestae & inculpata vitae , aen vero notatus quis & reprehensibilis ; an locuples vel egens sit , ut lucri causa quid facilè admittat ; vel an inimicus ei sit , adversus quem testimonium fert , vel amicus ei sit pro quo testimonium dat. Nam si careat suspicione testimonium , vel propter personam à quae fertur , quòd honesta sit , vel propter causam , quòd neque lucri , neque gratiae , neque inim●citiae causa sit , admittendus est . z z Lib 3. Dig. de Test . The sincerity of witnesses is strictly to be enquired after . Therefore as to their persons , the condition of every witnesse must be examined , whehe be a Magistrate , or a common person , whether he be of good and unblameable life , or whether he lye open to just reproof , or hath been any way aspersed ; whether he be able or necessitous , so that he may be tempted to transgresse for filthy lucres sake ; whether he be an enemy to him against whom he comes to testifie , or whether he be gracious with him whose witnesse he is to be , for if his testimony be void of all suspition , either in regard of his person , as that he is honest , or in regard of the cause , as that there is neither gain , nor affection , nor enmity to corrupt him , he is to be allowed .

Moreover , it leaves a Latitude to every Court of Judicature , to give such a time both to Plaintiffe and Defendant to prove , as the distance of place from whence the proof is to be brought , does necessarily require . Neither does it exact , that Plaintiffe and Defendant should prove within one and the same time , but the defendant begins to prove his Defeuce , after the Plaintiffs proof is ended a a Speculat . de rest . sect. qualiser , num. 20. . When both have done , the Judge is to conclude the cause , by which all 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 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 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 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 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 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 g Ha●precht . Inst. de rer. d●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 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 b L. 4 co. de legib. l. 23. de D●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 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 a Tameise nulla perturbatione judices ab aequitate dimoverentur , nihilominus tamen legibus opus est , quibus vel uti lucerna quadam , vel imperiti in● 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 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 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 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 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 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 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 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 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 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 i D.l. 16. par. 9. ut eadem scelera in quibusdam provin●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 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 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 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 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 God has given to the world ) it is to be discovered no where sooner , then from that , which not onely one whole Nation has agrred upon and established for a Law amongst themselves , but which other Nations besides them , have allowed for true reason , and practised the same also within their severall territories for many hundreds of years together ; for the most certain token of evident reason is , if the generall perswasion of all men doe so account it , and when the judgements of all men generally , or for the most part , run one and the same way . Non potest error contingere , ubi omnes idem opinantur ; & quicquid in omnibus individuis unius speciei communiter inest , id causam communem habeat oportet , quae est eorum individuorum species & natura . No error is to be feared in such matters where all men are of the same opinion ; and what is ingrafted in every individuall of the same species , must necessarily proceed from one common cause , which is nothing but their very nature . The generall and perpetuall voice of Men , is as the sentence of God himself ; for that which all men have at all times learned , Nature her selfe must needs have taught ; and God being the Author of Nature , her voice is but his instrument : By her from him we receive , whatsoever in such sort we learne .

When therefore we say , that the Law of a Nation ought to be conformable to Reason , we mean and intend such Reason , as other Nations and Men doe generally by the instinct of Nature , the meanes of good Literature , and their insight in Civil affaires , understand and agree to be reason in such matters . Non enim licet naturale universaleque hominum judicîum falsum vanumque existimare : It is not fitting to question that which is generally allowed by all men . And that Law that approches and comes nearest to such common and universall reason , is the truest and perfectest Law of all other , and makes the people most happy and quiet that live under it .

Howbeit , since this is a blessing that every Nation does not enjoy , froward & perverse men must not take an occasion from hence , to despise and quarrel with their own Laws , upon pretence that they are irrationall . Cognitio de bone & malo non pertinet ad singulos : omne judicium in civitate est illius qui glaedium belli & gladium justitiae gerit . Regulae boni & mali , justi & injusti , honesti & inhonesti , sunt leges civiles ; ideoque quod Legislator praeceperit , id pro bono , qnod vetuerit , id pro malo habendum est . To judge what is good , and what is evill in a common society , belongs not to any , that are under rule ; but to him or them solely , in whom the Supreme Power resteth : The measures of good and evill , just and unjust , honest and dishonest , are singly the Lawes of every State . Therefore what the Law-giver does prescribe , with subjects must passe for good ; and what he forbids , they must look upon as evill , till he thinks fitting to order and declare otherwise : Insomuch as neither the Judges nor Magistrates themselves can dispute or Judge thereof . In temporal bus legibus , quanquam de his homines judicent , cùm cas instituunt ; tamen cùm fuerint institutae & firmatae , non licebit judici de ipsis judicare , sed secundum ipsas , sayes S. Augustine , as he is cited by the Canon Law a a Cap. 3. Dist. 4. : In temporall Lawes , though they may be debated by any man whilest they are in making , yet when they are once agreed on , and fully passed , the Judge shall judge by them , but of them he ought not to judge .

In pressing then that a Law ought to be agreeable to right reason , the argument is directed to the Law-giver , not to the Subject ; and the scope of it is to shew , rather what a Law ought to be , then to quarrell with any particular Law , because it is not so rationall as it should be , and as other Lawes are . But withall , it professedly aymes to discover the strange weaknesse of those , that when other Nations hold fast the Roman Civil Law , as being the summe and substance of all humane reason , they are willing to forgo it quite , when they have had the conjunction and assistance thereof so long in this Nation , and may with so much ease and advantage keep it still . To whom I shall give no ' other caution , then what Vlpian , one of the grave sages of the Civil Law give ; b b L. 2. Dig. de constit print . In rebus novis constituendis evidens esse utilitas debet , ut recedatur ab eo jure quod diu aequum visum est : Amongst other alterations , saith he , that is , be it Government or what ever else , that comes to be altered in a state , yet it ought to be some apparent advantage that should induce a Nation to part with that Law that has by long use been found to be very equall .

CHAP. IV.

That Reason is not so strictly required in the Law that orders the affaires of State , as in that that settles the differences that arise between Man and Man .

IF then we would know , when reason ought to manifest it selfe in a Law , and when it is not so strictly required , but that some deviation may be permitted , we must observe a wide difference between the publick affaires of State , and those of the Subjects own in their private dealings and controversies with one another ; for although all the affaires of a Nation both publick and private , must be under the provision and rule of the Law , yet is it not necessary , that they should both be regulated in one and the same manner , nor by one and the same reason ; for there is a Reason of State , as well as a Reason of Nature .

In the Laws for publick matters , because they respect the welfare and preservation of the whole society meerly , and so are not to be tyed to the same rules every where , a strict adherence to naturall Equity and common Reason is not required : Safety and convenience is Reason enough to justifie them ; so they encourage Vertue , punish Vice , maintain Trade and Industry , and uphold Religion . Yet it is the happiest , when there is the least aberration from common Equity and known Reason , even in those things wherein the whole Common-wealth is principally concerned .

But it is to be considered , that there are such multitudes of people , such difference of degrees , qualities and conditions , and such perversity of Wills , Humours , and Affections in every Common-wealth , that no humane Wit is able by sweet equitable wayes , to reduce them to that perfect temperature and harmony , which is requisite for the conservation of civil unity . This may partly be judged by the government of a Family , be it great or little , which is many times turn'd upside down , and dissolved by the perverse humour of some one or two , not corrigible by any wholsome Counsel , or moderate Chastisement of the head of it . What marvell is it then , if in whole Kingdomes 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 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 b Ratio naturalis secundum hominum captum quandoque variat , & multi non tam ratione ill . quàm 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 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 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 quàm legum necessitate astringi Quàm dulce , quàm 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 themselves establish , sayes Quintilian . a a Detlam . 254. Howbeit it is no more essentiall to a Law then it is to Custome , to be reasonable when it is first ordained . b b L. 1. & 2. co. Quaesit longa consuet. Rei non bonae consuetudo pessima est : Nemo consuetudinem rationi & veritati praeponat ; quia consuetudinem ratio & veritas semper excludit , sayes Saint Augustine , c c Lib 3. de Baptismo contra Donatistas , cited in the Canon-law . Dist. 8. c. 4. Let no man preferre Custome before either Truth or Reason , because Truth and Reason does drive contrary Custome quite away . So that both in a Law and a Custome also , it is equally requisite that they should both be rational .

CHAP. VI.

Where Law or Custome is wanting , to judge by President or Example , has no defence in Reason .

ANd since Right reason is so essential to that which comes to arbitrate and judge of our Lives , Livelyhoods , and Interests , we must crave leave to disallow of their opinion and practise , who when they have neither Law nor Custome of their own countrey , to guide their judgements by in any case that comes before them , do not resort to the Civil Law , as other Nations commonly do , but do usually supply that defect by presidents , thinking that any case which the Law has not provided in , may be judged by a Judgement had in the like case before ; which certainly cannot be defended by any right reason , or good judgement . a a Si dixcrit aliquis , si vidi , sic audivt ; en dccisiones ; magis risum quam fidem nostram excitat . Maestert . Dissertat . de Artific . disput. parag. 9. For ,

First , the conformity of one sentence to another , to rational and wise men argues nothing as to right or equity , but concludes a concurrency in opinion onely , both which may be erroneous and mistaken .

Secondly , as in judged cases , taken meerly as such , there is want of reason to perswade , so there is want of authority also to oblige ; for what force or power can the judgements or sentences of any predecessors have to bind or limit those that shall succeed them in the same Judicatory ? Par in parem non habet imperium , nec aliquis in seipsum ; Judges of equall power cannot exercise any rule over one another , nor indeed can any one tye up ones own self . b b L. 13. parag . 4. Dig ad S. C. Tr●ble and Gothofr . ibid. And therefore as it happens often , that de eadem resaepe alius aliud decreverit aut judicaverit ; upon the same fact one Judge judges one way , and another another : So it is to be seen too , that illi aliàs aliud iisdem de rebus & sentiunt & judicant , the very same men do determine the same fact at divers times diversly , sayes Erodius c c Rer. Judic . lib 1. Tit. 1. c. 18. &c. 26. . For indeed the judgements of Men may wax perfecter by age , study , and experience , than they were when they gave their first judgement : And those that do succeed , may be by many degrees more eminent in wisdome , Reason , Knowledge , and Eperience , than those that sate in the same Tribunals before them ; for there is in this world an undoubted wheeling in all things ; Knowledge , Wit , and Understanding does not shine and prosper so in some times , as in other succeeding times they do ; and time to posterity may discover that to be an errour , which our Ancestors thought a truth .

Thirdly , there must needs be little value and weight laid upon foregoing Judgements , even of the highest and most exemplary tribunals of men ; nor can they be esteemed such fit patterns for our imitation , when it is considered what uncertainties they lye under , what failings they are subject to , and what artifices , subtilties , inventions , practises , and other undue means are too too frequently used to corrupt and poyson them . For ,

Sometimes pars major vincit meliorem , the greater part weighs down the better . Where many Judges are to pronounce Judgement , and some one or two of them be eminently qualified above all the rest , that which the greater number concurs in onely , must prevail and take effect ; but if the wisest be dissenters , numero potius quam scientia judicatur , there is more of number than of weight or knowledge in such a sentence .

Sometimes he , in whose favour sentence is given , carries it but by one vote more than he against whom it passeth .

Sometimes some one of the Judges being more renowned , or happily more eloquent than his fellowes , does either through his greatnesse , speech , dexterity , or wit , draw all the rest into errour by his too powerful interposing .

But the danger of passing wrong and erroneous judgement is greater , where the office and power of judging rests in one single person only , since it is easier to draw away and overcome one than many . And although it is his office to set before his eyes Law , Religion , Equity , and Truth , and remove far from him arbitrary & licentious Wil , Love , Hatred , Envy , Fear , Indulgence , Covetousnesse , & all inordinate Affections whatsoever ; yet here too , sayes Quintilian , Pecunia quoque persuadet , & gratia , & autoritas dicentis , & dignitas , & postremò aspectus etiam ipse sine voce , quo vel recordatio merltorum cujusque vel favies aliqua miserabilis , vel formae pulchritudo sententiam dictat ; Money does prevail , and favour , and the graciousness of the suppliant , and greatness does draw away , and sometimes even the very presence without any speaking , either through the remembrance of some eminent deservings , or through the countenance being either mournful or sad , to pity or to admiration beautiful , is a means to melt a Judge , and to corrupt and infect the Sentence .

It is too common also , that the wrong cause is follow'd with exactest diligence , strengthened with the patronage of the most & the best advocates , & some of them happily too nearly related to the Judge himself , and assisted with all other advantages , that can make Victory hopeful , when Right is destitue of all assistances , and but weakly and faintly defended : the one side too bold and pressing , the other too too modest and bashful , shewing a kind of guilt in blushes . It is not so rare neither as were to be wished , that the Regal or other Supreme power does intermeddle in the very acts of Justice , either directly , or by some remoter influence ; especially when a Nation is embroyled in troubles , and divided into divers parties ; for in such case Justice is made subservient and ministerial to the strongest and most prevailing faction .

These are the dissiculties and temptations which all Courts of Justice have to contend withall , under which they may more easily fall , than withstand and vanquish them . The Judgements therefore and Sentences which they deliver , though we must acquiesce in and sit down by them , as to such cases which the same are purposely given for to decide , and as to such persons that are mentioned or concerned therein ( for else there would be no end of Controversies , nor no mans Right would be ever certain ; and therefore the Civil Law sayes , that Prator quoque jus reddere dicitur , etiam cùm iniquè decernit , d d L. 11. dig . de just. & jur. and Res judicata pro veritate accipitur ; e 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 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 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 h Re●per se ipse valde pernicioà est , exemplis non legibus judicare , cum ex levissima personarum , vel locorum , vel temporum varieta●e judicia mutentu● . 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 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 factum est , quam quid fieri debeat , sayes Proculus k k L. 11. Dig. de offi●● 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 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 aff●rre his qui judicio non interfuerunt , neque praejudicium so●ent irrogare m 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 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 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 ultra accusari potest : Let the Woman waite the doom of the Man , if he be quitted , she is thereby free and can never be accused ; but if he be cast , that does not cast her , but she shall defend her selfe notwithstanding . And the reason that is assigned is observeable . Quid euim si adulter inimicitiis oppressus est , vel falsis argumentis testibusque subornatis apud praesidem gravatus , qui aut noluit aut non petuit provocare ? Mulier verò judicem religiosum sortita , pudicitiam suam defendet ? Possibly he might be oppressed with Malice , or condemned by false Witnesses , or the Judge might be carryed away with smooth words , or meer outward shews : The Woman coming under a better and more upright Judge , may vindicate her chastity , and clear her innocence better . Neither will any likenesse of one case to another , involve an absent person in such accidents as have fallen upon other men ; for , nee in simili negoeio res inter alios actas absenti praejudicare , sape constitutum est , sayes the Law p p L. 4. Co. Quib. res judis . : It has been frequently over-ruled , that though the cases are never so much the same , yet a third person that never was a party , shall sustaine no detriment by what hath been done between those that were . For besides divers Lawes that are set under other Titles , there is a whole Title to the same effect . q q Co. Res inter alios judicas . aliis non nocere . .

Neither does the Law look upon it as any incongruous or strange thing , that the same businesse should be judged diversly , for it does instance where it does frequently come to passe . Circa inofficiosi querelam , sayes Paulus , evenire plerumque assolet , ut in una atqne eadom causa diversae sententiae proferantur r r L. 24. dig . de inoffic . Testum . . And the same sayes Papinian ; Filius qui de inofficiosi actione adversus duos haeredes expertus , diversas sententias judicum tulit , & unum vicit , ab altero superatus est ; In an action that is brought against the Will made by a Father to the disinheriting of his owne children , it is usuall to have contrary sentences pronounced , the Sonne to vanquish one Executor , and to be overthrown by another .

And therefore the practicants allow not any such plea in the Court , as to say , that the case hath been judg'd , except there be a concurrence of all these three things together , to wit , that the cause and processe be the same , the right of action the same , and the persons the same too s s Gail . obs. lib. 1. obs. 70. nu. 17. ; so that though the causa agendi , the ground of suit were the same in all things , yet if the same persons never had any such suit depending , but that there is a new person in judgement which never appeared before , the proceeding must now be made wholly upon a new stock , without considering how and in what manner the right has been judg'd before between other persons . Neither is it materiall , whether the Judge that is to give the present judgement , be the same that judg'd the like case before , or whether they be diverse ; for the Law is still the same in both . Menochius resolves the one case , t t Consil. 59. Diversae sententiae , saith he , à diversis judicibus , inter diversas personas , diversis temporibus , ex una eademque facti specie ferri possunt : Upon one and the same fact , contrary sentences may be given by severall Judges , between other persons , at severall times ; and againe , u u Consil. 180. Cum. 51. Non aequissimi judicis est facere quod ab aliis fuit factum , sed quod fieri ab illis 〈◊〉 buit , sequi . It is not the part of a just Judge to judge as others have done , but as they and all ought to doe . As to the other , Christinaeus , notwithstanding the great paines he has taken , to gather together as many judgements and decisions of the great Councell of Machlyn in the Empire , as take up six volumes , yet he does not stick to say x x Vol. 1. Dicis . 2. That Senatus non ligatur suis anterioribus sententiis , quin valeat postea contrarium judicare . The Senate was not tyed to former judgements , but that they might judge the quite contrary afterwards ; for he accounts it praise-worthy , to relinquish an errour , and to embrace a truth at any time : nor to be possible , but that the change of times should introduce change of opinions and judgements also , and shews that Afflictis in his time saw that judg'd one way , which Grammaticus afterwards reports to have been judg'd the contrary y y Ac proptereae curia Par si●●● in sintentiis saepius haec ve●ba subjecit ; Neu julicatares ad consequentia t●ahatur . Bodin . de rep. l. 6. c. 6. . Thus then , since we require that Reason and naturall Equity should be strong and vigorous both in Law and Custome , or at least no meanes repugnant to them , when they come to judge us ; and that we see all manner of Reason to stand against judging by Presidents or foregoing judgements , besides the univerfall Law and practice of Nations ; we conclude that the way of judging by Presidents , is as erroneous a guide to walk by , and as little satisfactory to the people , as a Law or Custome that is void of all Equity and Reason , and therefore by no meanes to be entertained or admitted .

And yet we must allow what Callistratus reports from the Emperour z z L. 38. dig . de Legib. Severus ; That rerum perpetuò similiter judicatarum autoritas vim legis obtinet : Cases constantly judg'd one way for a long tract of time together , doe set a rule to such as shall succeed : for as Cujacius likens it to Custome , a a L. 7. dig . de just & ju . Consuetudo , saith he , non valet nisi ex tempore longo , usuque frequenti . Ita rerum judicatarum argumentum non valet , nisi ex tempore longo sive diuturn● frequentique , judicioque simili : As custome is of no force , except it endures a long time , and is frequently put in ure : So to argue from foregoing judgements , is no weighty argument , except they have been many , and constantly the same for a long time together . In like manner , it is most true , that Optima legum & consuetudinis interpres est res perpetuò similiter judicata , The judging of the same thing alwayes in one and the same manner , is the best help to understand both Law and Custome by : But then it must be , saith Cujacius , Non quodlibet judicium , sed quod numero & tempore valet ; as if he had said , It must not be once , twice , or thrice judged so , but the judgements must be many , as well as alike ; and it must hold on so for a long time together , before at can have the force or effect of a Law , and after it has so long prevailed , it may be esteemed not so much Law , as Reason ; for certainly it could not have so long endured , if the reason of it had not been evident to those , whose judgements were so conformable as never to disagree therein .

CHAP. VII .

That they are great advantages which a Nation has by ruling by such a Law as is rationall .

THe governing and judging by that Law which Reason teacheth us , cannot but be effectuall unto that Nations great good that observes the same ; for we see the whole world and each part thereof so compacted , that as long as each thing performeth onely that worke which is naturall unto it , it thereby preserveth both other things , and also it selfe . Contrariwise , let any principall thing , as the Sun , the Moon , any one of the Heavens or Elements , but once cease , or faile , or swerve , and who doth not easily conceive , that the sequell thereof would be ruine both to it selfe , and whatsoever dependeth on it ?

As therefore the obedience of other Creatures unto the Law of Nature is the stay of the whole World , so nothing is more effectuall to the upholding of any communion amongst men , then to command the peoples obedience to nothing more , then what Nature and Reason prompts them to , and to determine their Rights by Rules , which themselves cannot gainsay ; for when the judgements of a people are satisfied in the Reason and Justice of that which is commanded , either by their own understandings , or as they are taught by more knowing men ; they sit down in a quiet and contented submission , and looking upon their Governors with the greatest Reverence and Honor , they obey without complaining , and thereby the publick peace is also secured .

But when the Lawes of a Nation , that should be most clear and rationall , are wrapt up in a strange language , delivered in termes most intricate , and the matter thereof not intelligible by any degree of true Reason or Learning ; the people are presently possest with a jealousie , that their dearest rights and most pretious interests may miscarry under them , and their surest possessions snatcht from them , under pretence of a Law which they cannot discerne any Justice or Reason in ; till at last they fall into open rage and distemper , thereby disturbing the publick peace , and oft-times shaking the very Government it selfe in their fury a a Legum at Ma gistratuum con temptum sequun tue populi sediti osae voces , & adve , sus priucipes ipsos conjurationes ac defectiones . Bodin . de rep. l. 3. c. 1. : for there is no bondage like to the slavery of the Judgement , and the captivity of the Will ; neither is there any greater occasion or ground of fear , then when a man is constrained to tread such steps , where his understanding cannot guide him . But especially for ones fortune or personall safety to be exposed to danger in such unknown and undiscernable wayes , it must needs draw on a greater distemper in the minde , because of the great consequence thereon depending . Moreover , when the dictates and proceedings of Law are rationall , we are much assisted by our Reason in a conformity and obedience to them , even when we doe not exactly know the Law it selfe and we doe not so soon slip into danger or mischiefe under it , when we have an inward guide to direct us in the way we are to walk in : but when we are to walk in a path we know not in any kind , and to observe rules which we cannot understand , it is then that we wander out of one Labyrinth into another , till mischiese and the penalty of the Law surprizeth us unawares .

Besides , Lawes that carry in them honest , rationall , and clear principles , are as so many lessons for the people to fashion their lives and actions by , whose nature and manners will be much tempered by the discipline of the Law they live under ; for since it is the onely guard and security that they have for their lives and fortunes , they will be studious in it , inquisitive after it , and attentive to it ; and so whilst they study and learne the Law , to keep themselves and their estates in safety , at the same time they also learn all the duties of a Morall life , and suck in the truest principles of practicall integrity , and civill conversation . And this amongst many others , hath been one very powerfull inducement to Christian Nations , to receive and cherish the use of the Civil Law to much as they doe , because no humane Law or Learning does so well teach men to be just vertuous , & innocent in all the actions of this life , as that Law doth . Iustitiam colimus , & boni & aequi notitiam profitemur ; aequum de iniquo separantes licitum ab illicito discernentes ; bononon solum metu poenarū verùm etiam proemiorū quoque exhortatione efficere cupientes ; veram , nist fallor , philosophiam , non simulatam affectantes , saves Vlpian b b L. 1. dig . de Just. & jur. , in the name of all the Lawyers . We adore Justice , and the knowledge of Right and Equity is our profession ; dividing Equity from what is unequall ; discerning lawfull things from unlawfull ; aiming to make men vertuous , as well by rewarding them where they doe well , as punishing them when they doe ill ; teaching such wisdome , if I mistake not , saith he , as is not for shew and ostentation , but is true , solid , and substantiall : For Cujacius explaining the last words of that Law , makes it the proper office of a Lawyer , to teach men to bridle their Lusts and Appetites , to study the common good , to defend their own , to keep their desires , hands and eyes from the goods of others ; which are but the lessons of a true Philosopher .

Likewise the summe and substance of all that a man owes morally either to himselfe or others , is comprized in the three generall precepts of the Civil Law : Honestè vivere , alterum non laedere , suum cuique tribuere c c L 10 dig . de Just. & Jur. Parag. 1. ; To live soberly , not to hurt another , to give every one his own . The first duty concernes our own selves , and is the fruit of Modesty , forbidding us to doe any thing whereby we may seem lewd or vitious ; nor to shew any kind of dissolutenesse either in our speech , habit or manners , and to refraine from any act , quod vel nos commaculet solos , sayes d d D. l. 10. Cujacius , that is , which may stain our persons , though none be privy to it but our selves The other two are the proper effects of Temperance and Justice , and owing to others , whom we are to live , converse and deal with ; teaching us to abstain from theft , violence , rapine and injury ; to render back to all men what we have of theirs , or doe owe them ; reward to vertuous actions , and to evill punishment ; and to make full satisfaction for dammage or detriment done to others through our meanes . Again , though Laws very rarely continue , when the stare of Government comes to be quite changed ; as it fell out in the Roman state at first , long before the time of the Civil Law : where e e L. 2. Dig. de Orig. Jur. Pomponius writes , that Exactis Regibus , omnes leget Regiae ex-leverunt , iterumque caepit Populus Romanus incerto magis jure & consuetudine aliqua uti , quàm perlata lege , iàque 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 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 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 , pure reason , and true naturall equity already .

The Romans ( who through the largenesse of their Empire , and the long continuance of it , had dealings with the greatest part of the World then inhabited and found out , and so had beyond other Nations , the greatest opportunity to see the wonderfull variety of questions and controversies , that fall out between Man and Man in their mutuall transactions , when such a numberlesse number of them came before their own Judicatories ) they chiefly minded the regulation of such matters ; the Lawes that are now extant , being almost wholly taken up in them , and handling the publick very sparingly ; for of the fifty books of the Digests , nine and forty do almost wholly consist of these private controversiall things . They have taken up likewise all the Code , saving a little of the first book of it , & the three last Books of all . The Institutes are altogether spent herein , excepting that one Title De public is Judiciis , which is the last of all .

Hereof Cujacius and Duarenus render this reason : Ideo neglectum est jus publicum , say they , quod parum videretur ejus cognitie singulis esse necessaria , quòd de rebus privatis frequentiores essent lites , quodque rarò de jure publico interrogaretur : Therefore by the Roman Laws so little was declared concerning the publick , because the knowledge of such matters was so little necessary for private men , and for that most suits were brought for differences betwixt one subject and another , as also because little advice was asked upon that which concerned the generall welfare .

There is nothing therefore upon which a Controversie may be raised in our dealings with one another in this life , but to cast the right where it ought to go , there may be found out in the study of the Civil Law , that , which though it was a Law to the Romans only , yet has it the force of profound , pure , solid reason to all other men ; so perfect , absolute , and so rational a Systeme is it of all humane affaires and dealings whatsoever . Neither are we able to prize or esteeme the singular benefit that hath grown unto the world by the Roman Civil Law , being still extant , as the value thereof deserveth .

For the precepts of Nature , and the rules of Natural Reason , whereof it aboundeth , are either such as we of our selves could not easily have found out , and then the benefit is not small to have them readily set down to our hands ; or if they be so clear and manifest , that no man indued with reason can easily be ignorant of them , yet the Law as it were borrowing them from the school of Nature , to prove other things lesse manifest , and to induce a necessary consequence of something which were in it self more hard and dark , unlesse it should in such sort be cleared , the very applying of them unto cases particular , is not without most singular use and profit many wayes for mens instruction .

Besides , be they plain of themselves or obscure , the evidence of so renowned a Law added unto the natural assent of reason concerning the certainty of them , doth not a little authorize and confirm the same . Wherefore in as much as our actions are conversant about things beset with many circumstances , which cause men of sundry wits to be also of sundry judgments concerning that which ought to be done , beneficial it cannot but seem , that the rule of Civil Law has herein helped our infirmity , whereby we do so well understand what is right and just , and what otherwise .

Though the first principles of the Law of Nature are easie , and discerned generally by all men , yet concerning the duty which Natures law doth require at the hands of men in a number of things particular , so far hath the natural understanding even of sundry whole Nations been darkned , that they have not discerned , no not grosse injustice and injury to be so . Whereby it appeareth how much we are bound to admire the profound wisdome , and even honour the memory of the Roman Lawgivers , who have delivered such a Law to the world ; a Law wherein so many things are laid open , cleare , and manifest as a light which otherwise might have been buried in darknesse , not without the hazard , or rather not with the hazard , but with the certain losse of the rights of many men and nations .

For albert there is in the Civil Law , as there is and must be in all Lawes whatsoever , a very great intermixture of such things as are established by the voluntary determination , and proceed from the meere will and pleasure of those that have ordained them , who might limit Times , Places , Forms , Actions , Rewards , punishments ; & difference Persons , & might order and dispose of all Circumstances in what way and manner they pleased , as the Nature , Manners , Government , and Occasions of the Roman people most required , without any respect to common and universall Reason , and are therefore neither obligatory nor usefull to any other State or Nation , as they were to the Roman : yet there is in it a rational and natural part also , which belongs unto men as men , or to men as they live in politick society , consisting of such common and natural notions , and so abstracted from such circumstances which should change and alter it , that it is alwayes permanent , alike known to all men , or at least to the wiser sort of men , obligatory , and useful every where . And never was there any Humane Law that abounded so much with this , as the Civil Law doth , it being to be found every where about the whole Law , though intermixed with that which is meerely positive , proper and usefull for that State and none else , or at least not fitting to be made a Rule for all people .

By Natural and Rational I understand that which our own natural understanding allowes as good , or disallowes as evil , though there were no Law to forbid the one , or to prescribe the other . And this was the same , which St. Paul a a Rom. 2.14 . expresses to be the guide of the Gentiles , that is , of all men naturally . The Gentiles which have not the Law , doe by nature the things contained in the Law ; which shews the work of the Law written in their hearts . Also that which is commonly received and practised by all men : In re consensio omnium gentium lex naturae putanda est ; b b Cicer. Tuse . l. 1. what all Nations agree on is to be esteemed natural . Quod mundus probat , non audeo improbare , sayes Baldus , c c Consil . l. 4. Consil. 496. I dare not question that which is generally allowed of .

Likewise I account that natural and rational which is necessary and behoofefull for those that lead their lives in any well-ordered state of government , and without which we take away all possibility of a sociable life in the world .

Further , that justice may well be esteemed natural and rational , which is squired by and accommodated to the nature of the thing in question , as it is defined , and as it generally passes in the account of all , or at least the most knowing men .

Neither do I account that only to be natural & rational which was so when the first foundations of the world were laid , & man became inhabitant thereof ; for then all things were common , and men were not gathered into civil societies ; neither was there any distinction of Nations , nor any Cōtracts , no waging War , nor leading Captive , nor servitudes , nor conjunction of Dwellings , nor any limits set to the property of each Man & Nation , as we see at this day . Therefore that must be looked upon as natural and rational , which suits with the present state of affairs , as they now stand in the world at this time : for though the Natural Law be alwaes the same , yet some parts of it are primely necessary , others by supposition and accident , and both are of the same necessity , that is , equally necessary in the several cases . Thus , to obey a King is as necessary and naturally reasonable as to obey a Father , though the first Governour of all ; that is , supposing there be a King , as it is certain naturally a man cannot be , but a Father must be supposed . If it be made necessary that I promise , it is also necessary that I perform it ; for else I shall return to that inconvenience which I sought to avoid , when I made the promise : And though the instance be very fat removed from the first necessities and accidents of our prime being and production ; yet the reason still pursues us , and natural reason reaches out to the very last minutes , and orders the most remote particulars of our well being .

Moreover , besides the natural and rational part before spoken of , which either simply concerneth men as men , or which belongeth unto them as they are men linked with others in some form of politick society ; there is another sort thereof , which serves to order and direct all such several bodies politick , so far forth as one of them hath publick cōmerce with another : for although civil society doth more content the nature of man than any private kind of solitary living , because in society this good of mutual participation is so much larger than otherwise : yet we are not satisfied herewith , but we covet ( if it might be ) to have a kinde of society and fellowship with all mankind . And therefore Themistius speaking to Valens the Roman Emperour , he told him , d d Grot. Proleg . lib. de ja. bell . & pac . that Kings if they would act by the rule of true wisdome , they must , non unius sibi creditae gentis habere rationem , sed totius humani generis , & esse non 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 tantùm , aut 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , sed 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , not take care of their own people onely , but bear a tender regard towards all societies and companies of men whatsoever , and be lovers of men generally , not of the Macedonians or Romans onely . And surely God in his wise disposal of all things here below , would therefore not suffer any one part of the earth to be enriched with all his worldly benefits and blessings , but chose rather to sprinkle them up and down , making one nation to abound with one thing , another with another , but none to possess all things ; that thereby the several societies of men standing in need of one another , might be driven to seek & preserve one anothers friendship and correspondence , if it were but to purchase these outward temporal things , and to gain those great advantages which are to be had onely in a combined multitude , and for which a single Nation is too weak and impotent . Nulla est tam valida civitas , sayes Grotius , e e In Proltgom . quae non aliquando aliarum extra se ope indigere possit , vel ad commercia , vel etiam ad arcendas multarum externarum gentium junctas in se vires ; unde etiam à potentissimis populis & regibus soedera appeti videmus . There is no countrey so strongly fortified within it self , but that it may at one time or other be put to implore the aid of other Nations , either in the way of trade , to put off their own commodities in exchange for others , or else to secure themselves against a collected force that is about to invade them . Hence we often see , even mighty Princes and people so strongly sollicit to be in league with other States .

This naturall inclination that is in the men of the World , to have the knowledge of , and acquaintance and friendship each with other , how farre distant soever they be , did appear so much in Socrates , that he professed himselfe a Citizen , not of this or that Common-wealth , but of the World . And an effect of that very naturall desire in us ( a manifest token that we wish after a sort an universall fellowship with all men ) shewes it selfe by the wonderfull delight men have , some to visit forreigne Countreyes , some to discover Nations not heard of in former ages ; we all , to know the affaires and dealings of other people , yea to be in league of amity with them , and this not onely for traffique sake , or to the end that when many are Confoederated , each may make the other more strong ; but for such cause also as moved the Queen of Sheba to visit Solomon ; and in a word , because Nature doth presume , that how many men there are in the World , so many Gods as it were there are , or at leastwise such they should be towards Men. Further , this conversing with forreigne States gets us an opportunity to discerne their inclinations , know their strength and riches , or find their weaknesse , and sometimes to discover their secret machinations against our selves .

Thus whilst we travaile and send out into other Nations , in pursuit of our severall ends and interests , we fall at length to contract , exchange , transport , and so by degrees establish a fixed trade for return of commodities each to other . This draws on firme leagues of amity and friendship , capitulations to fight against our common enemies , and mutually to defend our selves . And this cannot be transacted without the help of Embassies , and the mediation of Ministers , by whom the mindes of both are made known , and our agreements sealed and confirmed . Sometimes injury is done by our neighbour Nations , or their subjects , either in staying our Ships , seizing our goods , restraining our persons , or protecting the publick and declared enemies of the Nation , which causeth us to demand redresse and reparation . Which if it be denyed or delayed us , if the offence comes from particular men , we right our selves upon some subjects onely by way of reprizall ; if from the State it selfe , or the most considerable part thereof , then followes the denouncing of open Warre , and all the concomitants thereof . Besides , when disturbances at home are outragious , and over-violent , we are sometimes driven to call in forrreign fores to appease them .

Moreover , if there be any Nation that grows so great in dominion , strength , and riches , as to strike terrour and amazement into all the neighbour Nations round about it , so as they may justly fear they shall become a prey to their luxuriant power and greatnesse , to proclaime open Warre against such a Nation , or to kindle the fire of dissension and civil discord within her own bowells , or to set other Nations upon her back to bring her lower , and to make her incapable of offending her weak neighbours , is by many deemed a politick , a a Principum at civitatum imperia stabiliora sunt , & ab injuria finitimorum tutiora , cùm societates ac faedera sic contrabuntur , ut aequabilis quaedam cx omnibus potentia existat . Bodin . de rep. l. 5. c. 6. and by some a lawfull way of Anticipation b b Sunt qui neutrarum partium se esse verbo detlavant , re tamen faces utrisque ad bellum inflemmandum elam suppeditant : ferendum illud quidem quodammodo , si suae saluti aliter consulere non possint . Bodin . de rep. lib. 5. cap. 6. . Which whether it be or no , it is not proper here to determine . But sure I am , to be regardlesse of such an over-spreading Neighbour , were a token of great improvidence and stupidity . And it were but needfull for the lesser States to confoederate and combine together , and to make joynt preparations to oppose her , in case she shall offer to molest any one of them ; for so active is Man by nature , that where a sufficient power to hurt is present , it is seldome seen that Will is wanting c c Una est tenuium adversus potentiores securiatis cautio , ut scilicct potentes , si necert velint , non possint ; cùm nocendi voluntas ambitiosis bominibus & imperandi cupidis nunquam sit defusure . Bodin . de . rep. lib. 5. cap. 6. .

Also , since it is neither honourable nor advantageous for any young Prince to intermarry even with the Noblest or Richest of his own Subjects , he must of necessity fit himself out of the Royal Families of other Princes ; here therefore they must be seen , known , and dealt with also . Besides a free and open recourse to forreigne parts , is so absolutely necessary to the very being of a Nation , that we see oft-times the restraint and shutting up thereof in point of trading , does so exasperate and incense a people , that the whole frame is ready to be dissolved , and the Subjects ready to rend one another in pieces , not sparing to discharge their anger even upon the very Prince himselfe .

These and such like instances doe demonstrate , how , not only advantageous , but unavoidable it is , for severall and divided Kingdomes to correspond , act , and negotiate each with other : which it is not possible for them to doe , but that controversies both various and difficult , and which mainly concern their severall interests , even to no lesse value sometimes then whole Kingdomes , will fall in , that must be debated , and must have some determination . And when every thing else has a Law to guide it , and a rule to examine and try it by , insomuch as no one society , or petty Common-wealth can stand without some Law ; the like necessity must there needs be of a Law to maintain and order the communion of Nations corresponding and acting together . Si nulla est communit as quae sine jure conservari possit , quod memorabili latronum exemplo probabat Aristoteles ; certe & illa quae genus humanum aut populos complures inter se colligat , jure indiget , sayes d d In Prolegom . Grotius : If there be no association which can be held up without some Law , as Aristotle both proved by an argument drawn from that close partnership which is usually amongst Theeves and Highway-men ; then surely is there want of a Law to direct that grand fellowship , which linkes all mankind , or divers States together . And again , e e Grot. ibid. Sicut cujusque civitatis jura utilitatem suae civitatis respiciunt , ita inter civitates aut omnes aut plerasque ex consensu jura quaedam nasci potuerunt , & nata apparet , quae utilitatem respiciciunt non coetuum singulorum , sed magnae universitatis ; As the Laws of every particular Common-wealth are made for the benefit thereof , so some certain Lawes might be and were certainly agreed upon by all or most of the Nations of the world , which should conduce to the welfare , not of any one people , but of the great communion of all men .

Now the Law that guideth those transactions which are usually observed to arise between grand Societies , is the Law of Nations : which is most naturall and rationall in its kind too , being grounded at first upon a common necessity that lay upon all Nations , to have reciprocall dealings and negociations with one another , & which the very Nature of those several dealings , and Reason it selfe dictates as necessary to be observed , so that without it such communion could not long endure .

Under the regulation hereof comes Embassies , courteous entertainment of forreigners and strangers , Laws of Arms , freedome of Traffique , right of Contracts , free passage through each others Borders , Reprizalls , the preserving and redemption of Captives , Leagues , Truces , Articles , and such like . The strength and vertue of which Law is such , that a people can with as little safety violate it by any act , how advantageous soever it may seem to be to the whole Body f f Qui civium rationem habendam dicunt , exterorum negant , hi communionem & socictatem humani generis dirimunt . Cicer. , as a private man can , in hope to benefit himselfe , infringe the Law of his Countrey . Sicut civis qui jus civile perrumpit utilitatis praesentis causa , id convellit quo ipsius posteritatisque suae perpetuae utilitates continentur ; sic & populus jura naturae gentiumque violans , suae quoque tranquillitatis in posterum rescindit munimenta g g Grot. in Prolegom . : As a Subject trespassing against the Law for a present advantage , brings the future happinesse of himselfe and posterity into hazard , so a people that shall trample upon the Law of Nature and of Nations , strips it selfe of the onely preservative of their peace and safety . It is not onely lawfull but honourable for any people , either to right or revenge the breach of the Law of Nations . And as in the state of one Countrey , any man may accuse upon a publick crime , so in the state of the World , any people may prosecute a common offence : for as there is a civil bond among all the people of one Nation , so is there a naturall knot among all men in the world , which should it be once dissolved , it must needs endanger the whole frame of that communion . Nay , of such power and praeeminence is the Law of Nations , that no particular Nation can lawfully prejudice the same by any their severall Laws and Ordinances , h h Si Princeps velit vel jus gentium primarium vel secundarium intra sui imperii limites abrogare , potestate sue abuti censendus est . Bar. bos . Collect. in c. 9. dist. 1. nn . 6. more then a Man by his private resolutions , the Law of the whole Common wealth or State wherein he liveth : for as a Civil Law , being the act of a whole body politick , doth therefore over-rule each severall part of the same body , so there is no reason that any one Common-wealth of it selfe , should to the prejudice of another , annihilate that whereupon the whole world hath agreed : for which cause , the Lacedaemonians forbidding all accesse of strangers into their Coasts , are in that respect both by i i Lib 2. Cont. Appion Josephus and k k Lib. 9. de sanand . Graec. affect . Theodoret deservedly blamed , as being enemies to that hospitality , which for common humanities sake all the Nations on earth should embrace .

And the Roman Civil Law is of singular use to teach and instruct in this Law too . Grotius the Ornament of his Age and Nation for learning and wisdome , undertaking in his most singular Book De juri belli & Pacis , to set down the severall heads of that Law which serves to direct those great transactions of Peace and Warre between Nation and Nation , and to reconcile their differences , professes to have borrowed towards the perfecting of that admirable worke , much from the Books of the Civil Law , because , saith he , l l In Prolegom . Rationes saepe optimas suppeditant ad demonstrandum id quod juris est naturae ; & eidem juri , neque minus gentium juri testimonium saepe praebent ; They often make very clear discoveries of what is the Law of Nature , and doe give frequent instances both of that , and of the Law of Nations also .

And indeed the Law of Nations is no more then that naturall Reason which Nations doe owe , and are bound to render each to other , whilst they correspond and act together , be it in Peace or Warre ; and but the very same which private men ought to practice amongst themselves in their private dealings . Which moved Mt. Hobbs m m Lib. de Civ . cap. 14. art. 4. , when for illustration sake he divided the Naturall Law , in naturalem hominum , & naturalem civitatum , into that of private Men and that of Nations , to adde , that praeoepta utriusque eadem sunt ; sed quia civitates semel institutae induunt proprietates hominum personales n n L 76. Dig. de Judic . l. 56. dig . de Usufrust . Popule respectu tetius generis humant privatorum locum obtinent . G●ot . Mare lib. c. ● . , lex quam , loquentes de hominum singulorum officio , naturalem dieimus , applicata totis civitalibus , nationibus five gentibus , vocatur jus Gentium : The precepts of both are but one and the same ; but saith he , because severall Common-wealths once setled are but as so many private men ; the same Law which in reference to single men we terme Naturall , being applyed to whole States , Nations and people , is call'd the Law of Nations , their duties being indeed both alike : for what one man ought to render to another , the same ought one Nation to render to another also .

So that although what ever we read of in the Text of the Civil Law , was not intended by the Roman Legislators , to reach or direct beyong the bounds of the Roman Empire , neither could they prescribe any Law to other Nations which were in no subjection to them , and even those Lawes that doe treat of Military matters , Prisoners of Warre , Embassies , and such like , doe but direct what Order & Discipline shall be kept among their own Souldiers , and how if any of them be taken by the Enemy , they forfeit the right of Citizens for the time of their captivity , but shall upon returne be restored ; and how free from being Sued or molested , Embassadours that come from their own Provinces , not from forreigne States to Rome , should be ; and so all those constitutions and such like , have still looked homewards , and no further , as o o Lib 1. de jur . Bill . cap. 1. Albericus Gentilis has truly observed : Yet since there is such a strong stream of Natural Reason continually flowing in the Channell of the Roman Lawes , and that there is no affaire or businesse known to any part of the World now , which the Roman Empire dealt not in before , and their Justice still provided p p A Romanis ad omnes populos Juris faecialis totiusque justitiae fontes purissimi manarunt . Bodin . de rep. lib. 5. cap 6. for ; what should hinder , but that the nature of affaires being the same , the same generall rule of Justice and dictates of Reason may be as fitly accommodated to forreigners dealing with one another , ( as it is clear they have been by the Civilians of all ages ) as to those of one and the same Nation , when one common Reason is a guide and a light to them both ? for it is not the Persons , but the Case , and the Reason therein that is considerable altogether . How came the old Law given to the Jewes to be in some measure obligatory to the Christians coming so long after , and to be of force still , and will be as long as the World endures , but because , besides the ceremoniall and judiciall part thereof , ( which was observable by the Jewes onely , and is now abrogated , in as much as it had but a temporary cause of Gods ordaining it ) there was also a Naturall and a Morall part incorporated in it , which all Nations and Men are bound to fulfill and keep , and can never cease ? Haec pars legis vivit , sayes q q De Legib lib: 9. cap. 11. nu. 22. Suarez , non tamen quia legis Moysis pars , sed quia naturae lex est , & novae legis pars , vivetque in sempiternum : This part of the Law remains in force , but not because it was a part of Moses his Law , but because it was given first by Nature , and the new Law has since confirmed it , and the authority thereof shall remaine for ever .

So and in like manner , there is in the Roman Civil Law a circumstantiall and a positive part , which was a Law to the Romans , and by them to be obeyed , but neither of force or use to others , being made for that people , climate , and government onely . But there is in it too a Law whereunto by the light of Reason men find themselves bound in that they are Men ; a Law by composition , for multitudes and politick societies of Men to be guided by ; a Law that may be applyed to the communion and fellowship of all Mankind , or divers Nations linked in amity and friendship together ; and this part of the Law is naturall , perpetuall , belonging not to the Romans onely , but to all Nations and Men ; neither can it have any cause of change , when that which gave it its first institution remaineth for ever one and the same .

Yet as the Civil Law is Roman , it is of no validity , but as it is naturall only : for as it was Roman , it extended not beyond the bounds of the Roman Empire , nor did it take care for any other People or Nation but the Roman onely , nor could the commanding power thereof endure longer then the Empire it selfe lasted . But when it treats and discusses such matters as are common to all mankind , and not onely the Roman Nation did , but all Nations and People doe still deal in ; as of contracts of all kindes , both at Land and at Sea , dispositions testamentary , succssions in deceaseds Estates where no Will is made , good offices done at anothers charge or detriment ; of the relations between Father and Son , Husband and Wife , Master and Servant , Governours and Governed , Magistrates supreme and subordinate ; of matters of property and possession , injuries done to the persons , or scandalls to the credit , or dammages done to the goods of Men ; of servitudes due from Houses or Lands to other Houses , Lands or Persons , Crimes and Offences of all sorts , and the punishments greater or lesser that attend them ; explanation of Lawes or Statutes , or of any obscure clause in any Contract , Speech or Writing whatsoever ; of Customes and other publick duties payable to the Exchequer , Authorities , Powers or Commissions granted to others : Deeds of free gift , Writings obligatory , Instruments , Pattents , Charters , priviledges in Writing or by prescription ; Customes and prescriptions to take away or diminish the right and property of others : of reparations upon fraud , non-age , absence , or other impediments unavoidable and necessary ; Nusances done in publick places or High-wayes , or from one House to another , obstructions in Rivers or Water-courses , Mortgages in Law as well as Fact : of goods lost in Ships , Taverns , Inns , or delivered to Carriers to convey to other places , or left with other Men to keep ; services due to the Common-wealth ; patrimoniall , personall , and mixt , Souldiers , and the exemptions and discipline belonging to them : Of judiciall Tryalls in all these cases and many more , where the quality of the Judge , his kind of Jurisdiction , the manner of Tryall , the Officers assisting , the kind of Evidence , the Judgement , the Execution thereof , or remedy by way of Appeale come to be considered : I say , when the consideration of these severall matters is as incident to all other Nations and times that live under Order and Government , as it was to the Roman , and that there be delivered and laid down in the Roman Civil Law such rules and dictates as are most naturall , essentiall , and necessary to be observed in each of them ; it must needs be , that the use of the Roman Civil Law in these particulars , as to the matter of it , can neither be locall nor temporary , neither be limited to that Empire , nor determine with it , but must be of use every where and for so long time as the businesse to which those rules are applyed , comes to be acted and dealt in , which will be as long as the World it selfe endures , and untill men leave to traffique and converse with one another .

Now as in the matters before specified , the difference that arises may be sometimes between the publike and some private person , sometimes between one private man and another within the same Nation ; so it may be also between a subject and a stranger , or , between strangers only , or between Nation and Nation ; and yet the same measure of justice will hold and serve for all . For look what justice may be rightly afforded between one man and another upon the generall rule of naturall equity and right reason , the same may as warrantably be dispensed between one Nation and another , as oft as any variance happens between them .

And hence it is that all those Writers that handle and treat of those controversiall things , which frequently come to be disputed between one Nation and another , as they are all Civilians , so though they doe make use of other authorities besides , yet the strongest and most convincing arguments that they bring to resolve them by , are fetcht from the generall rules of Equity and right Reason set down in the Civil Law . And were it not for them , we had no certainty to rest upon , nor any peaceable determination could be made of such controversies , but the sharpest Sword must be drawn out to cut the knot asunder : For what can Histories and the examples drawn from them doe towards a composure ? Errant , qui quod exemplo fit id etiam jure fieri putant , sayes r r De ju . & offic. Bellic . lib. 1. ca. 2 Ayala out of Cicero ; It is an errour in any to think , that what has once been done , may therefore be lawfully done againe . The force of example is weak and insufficient , Sana ratio exemplis anteponitur , sayes s s De ju . Bell. lib. 2. ca. 18. Albericus Gentilis ; Sound reason is far above examples . Besides , the integrity and truth of Histories is questionable , Saepe tempori , saepe affectibus serviunt ; and they too too often afford examples contrary each to other .

And moreover , by as it were a generall consent of Nations , there is an appealing to , and a resting in the voice and judgement of the Civil Law , in these cases between Nation and Nation . The reason whereof is , because any thing that is irrationall . unnatural , absurd , partial , injust , immodest , ignoble , treacherous or unfaithfull , that Law abhorreth ; and for that it is the most perfect image and representation of Nature , and of the Equity and Reason Nature prescribes to humane actions , that was ever yet presented or set forth to the World in a Law . And therefore whosoever will observe the style of the Imperiall Law , he shall find it least of all to run in this strain ; Sancimus , Mandamus , praecipimus , jubemus , imperamus , volumus ; We decree , command , will , enjoyn , enact , or in the like imperious and commanding way , but most in a gentle , soft , rationall , and a convincing way , thus ; Non est aequum . Nulla juris ratio , aut aequitaetis benignitas patitur . Bona fides non patitur . Divinè admodum . Non est dubium . Nimis grave est . Non sine ratione . Nihil tam naturale . Naturalem habet intellectum . Dolo facit . Absurdum est . Contra bonos mores est . Cùm satis inhumanum est . Cùm nulla ratio sit . Humanitatis ac religionis Ratio . Humanitatis intuitu . Humanum esse probamus . Ita nobis cordi pudor est . Indignum est . Iniquissimum est . Cùm ratio naturalis . A plerisque prudentum generaliter definitum est . Improbum quidem & criminosum . Periniquum est . Aequissimum visum est . Aequissimum putavit Praetor . Boni viri arbitratu . Juxta arbitrium boni viri . Hic titulus aequitatem habet naturalem . Hoc edictum summam habet aequitatem , & sine cujusquam indignatione justa . Vt moderatae rationis temperamenta defiderant . Nec verecundiae nec dignitati convenit . Nemo est qui nesciat , and the like , as if nothing were offered for a Law , but what is evident in it selfe , and all men must own , and presently apprehend to be just and equall .

There was never any Law more agreeable to the Divine , and to the rules of Conscience and exact righteousnesse , then that Law . Tertullian in his Apologetick against the Romans did acknowledg , Eorum leges ad innocentiam pergere , & de divina lege ut antiquiore , ferme mutuatas ; that their Laws did walk in the way to innocence , and were almost the same with the Divine Law . Philip Melancthon another Divine and a Protestant , sayes that and more : Ad normam effictam in mentibus humanis , & Decalogi voce declaratam atque illustratam congruunt humanae leges , quae citra controversiam post Mosaicas caeteris ut antiquitate , sic dignitate ; ut auctoritate sic veritatis certitudine ; ut rationum & demonstrationum evidentia , sic ordinis praestantia antecellunt : The Roman Lawes , saith he , are made after the likenesse of the Decalogue , and do not differ from those notions and principles of Reason which Nature hath implanted in all men . And it is out of all question , that setting aside Gods Law , they are as more ancient , so more renowned ; as of higher authority , so truer and clearer in determination ; as of a more evident demonstration and reason , so of a more excellent rank then other Laws that yet have been .

Which conformity and likenesse of the Civil Law to the Divine and Eternall , has been the onely cause , that the Casuists and Divines that have treated upon cases of Conscience , and have laboured to teach men what rules they must walk by , to doe justice , and to execute righteousnesse in their dealings and communications with one another , they doe every where about their books and writings , propose & set down the very rules and maxims of the Civil Law , as the best lessons of morality & justice , citing the very Lawes themselves , and the authorities of that profession ; which were incongruous and vain for them to doe , were not their justice , equity , and soundnesse unquestionable , and their authority beyond all dispute , even in those things for which their authority is brought by them . Neither is it they alone that set this high estimate upon the authority of the Civil Law , since the Learned in other faculties doe the same : with whom there is nothing more frequent , then when the duties of men one towards another in their severall relations come to be set forth , as between Parents and Children , Masters and Servants , Husband and Wife , Sovereign and Subject , Magistrates and private Men , Captain and Souldiers , one Citizen with another ; or when the best rules and advantages are to be laid down for the first founding of a Common-wealth , or the keeping of it in safety and splendour ; or when the justice and convenience of a Law is in question ; or the actions of Men , even of Princes themselves , be to be approved or condemned : In all these cases and the like , nothing I say is more usuall with Writers of highest renown for Learning and wisdome , then to fort fie their resolutions and dictates one way or other , with the practice and discipline of the Roman State ; and to make the Civil Law their Touch-stone to try all things by , and the best and most approved ballance to weigh them in ; judging the authority thereof to be beyond deniall in any thing that it does either defend or disallow , and for such as it is presented , does it passe currant with all men .

The Civil Law requires that an act should be worthy and laudable as well as lawfull , that it should be faire , equitable , ingenuous , and candid , as well as strictly just . Subtilties and niceties of words , and those apices juris , finesses of Law , and fine-spun webs of Wit , which are opposite to integrity and honest dealing , and which through a precise form of words and strict propriety of speech , would frustrate what was purely at first intended , it will not allow of or endure . Bonae fidei non congruit de apicibus juris disputare , says Vlpian . t t l. 29. Paragt 4. Dig Mandat : It suits not with sincerity , to contend about curiosities : Sensum non vana nominum vocabula amplecti oportet , u 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 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 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 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 a De ju . B●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 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 should go forth of the Town safely , and then after they were quite gone forth , and set forward some part of their way , put them all to the sword , Grotius c c d ca : 16. out of Tully . says truly , ejusmodi fraudibus astringi non dissolvi perjurium , by such fraudulent evasisions perjury is rather augmented then wiped away .

In Contracts between Princes or several States , exuberantior fides requiritur , a greater measure of sincereness is required , and subtil interpretations ought to be avoided , and such a meaning ought to be given to their compacts , as not Criticks , but vulgar and plain-dealing men may like of , and which was most probably intended by him for whose sake and benefit they were originally made . And in such fense Divines do agree all Oaths ought to be taken ; Quacunque arte verborum quis juret , Deus tamen qui conscientiae testis est , ita hoc accipit sicut ille cui juratur intelligit , says Isidore , cited in the Canon Law . d d c. quacunque caus : 22. quaest: Let the words by which we swear be never so artificially laid , yet God to whom our most secret thoughts are manifest , takes every oath in such a sense , as it is understood by him to whom such Oath is made . For which cause St Austin e e Epist: 224 , has pronounced them perjured , qui servatis verbis , expectationem eorum quibus juratum est , deceperunt ; who having fulfill'd the bare words , have frustrated the true expectation of those to whom they sware . Even as the Civil and Canon Law both , deems them not fulfillers but fraudulent transgressours of a Law , that perform the words , but act against the true intent and meaning of it . Certum est , quòd is committit in legem , qui verba legis complectens , contra legis nititur veluntatem : f f l. 5. Cod. De legi . reg. 88. De reg. ju . in 6. Whosoever keeping strictly to the words of a Law , perverts the intent , does clearly offend against it . For Lex non in verbis sed in sensu , non in superficie & foliis verborum , sed in medulla consistit , says Peckius . g g D. reg. 88. nu. 7. The Law lies not in the outward bark of the words , but in the pith and marrow , which is the sense .

Likewise in last Wills and Testaments , it will have the minde and meaning of the Testator , if known , to be pursued , whatsoever the proper signification of the words be . Non enim in causa testamentorum , says Marcellus , h h l. 69. Parag. 1. Di de leg. 3. ad definitionem utique descendendum est , cùm plerunque abusivè loquantur , nec propriis nominibus ac vecabulis semper utantur : In questions about Wills , we must not flie to that sense that the words will in extremity bear , since most do speak improperly , and they are but few that can deliver themselves in proper and apt expressions . And therefore says Mantica , i i De conject . ult. vol. lib. 3. Tit. 3. nu. 1. Cavendum est , ne dum nimia subtilitate verborum utimur , vera judicia defunctorum subvertantur ; We must take heed , that we do not so precisely observe the words , as to disappoint the true intentions of him that uttered them . From which sentences and sayings of the Civil Law it is clear , that no words , forms , niceties , or propriety of language is of any regard in the Civil Law , in comparison of truth , faithfulness and integrity . For verba monti , non mens verbis servire debet ; Words were made as instruments to serve and express the mind , and not to command or controul it .

Further , it takes care to suppress not onely those things which are manifestly evil , but some things also which are no otherwise bad , then as they are illaudable and undecent . Non omne quod licet honestum est ; k k l. 144 Dig. De reg. jur . Every thing that is lawful , the Civil Law does not esteem to be honest . If a Divorced wife Marry again , and by that marriage has a daughter , though she be not daughter in law to the first husband , nor any way of kin or allied unto him , since the first marriage was quite dissolved , yet he cannot marry her : l l Parag. 9. Inst. de Nupt. Neither will it allow the father to marry his bastard daughter ; nor the father to marry the sons spouse , nor the son to marry the fathers ; the reason is , quoniam in contrahendis matrimoniis naturale jus & pudor inspiciendus est ; m m l. 14. Parag. 2. Di. De rit . nupt. in matrimonial copulations it ought to be considered , what nature and sobriety does allow of ; and where it be doubtful , whether a marriage may be lawfully had or not , this rule is ever prescribed ; In re dubia certius & modestius est hujusmodi nuptiis abstinere ; n n D. l. 14. Par. 3. in an uncertainty it is safest and most modest not to contract such marriages . So that in some things , Quod non vetat lex , hoc vetat fieri pudor ; and as Bartol o o l. 8. Dig. De Aliment . leg . has expressed it , Non modo obligatio , verum etiam verecundia nos obligat ; There be some things , which for very shame we must forbear to do , though otherwise the Law will permit us to do them .

The Civil Law tels the very Emperour himself , that for him to demand a Legacy by a Will that was void , inverecundum est , it was undecent . Decet enim tantam majestatem eas servre leges quibus ipse solutus esse videtur ; p p l. 23. Dig. de legat . 3. It is most beseeming his Highness for to keep those Laws whereof he may seem to be free . And again , Digna vox est majestate regnantis , legibus alligatum se profiteri ; q q l. 4. co. De legib. It is language worthy of a Prince , to acknowledg himself bound to Laws . What did Seneca in his grave Philosophical precepts say more , when he cried out ; Quàm angusta innocentia est , ad legem bonum esse ? quanto latiùs officiorum patet quam juris regula ? multa pietas , humanitas , liberalitas , justitia , fides exigunt , quae omnia extra publicas tabulas sunt . How poor is that innocence , to be but as good as the Law requires ? How much further does the officious respects which men owe to one another go , then the letter and rule of Law ? How many things be there , which Piety , Humanity , Nobleness , Equity , and Uprightness do exact , which are out of the provision of the Law altogether ?

When any thing in Wills , Contracts , Laws , Statutes , or Testimonies , is rendred so doubtful , that it is capable of tetrick and severe as well as a mild and temperate , of an odious as well as a favourable meaning ; it does so much affect clemency , gentleness , and moderation , r r Nihil nobis tam gratum est quàm humanitas , says Justinian lib 57. co. De Episcopal . audient . that the gentlest and the softest interpretation shall be chosen , and it shall be taken in the mildest and best sense . What is odious and punishing , it restrains and keeps in to the utmost , and admits of nothing more in that case , then the strict propriety of words will enforce . But what is favourable , gracious , and pleasing , it enlarges and widens , by stretching them even to an improper sense and signification . These rules therefore and such like are to be frequently met withall . Semper in dubiis benigniora praeferenda sunt . s s l. 56. Dig. De reg. ju . Rapienda occasio est quae praebet benignius responsum t t l. 168. Dig. eod. . In re dubia benigniorem interpretationem sequi , non minus justius est quàm tutius . u u l. 119. Dig. eod. In poenalibus causis benignius est interpretandum . x x l. 155. Parag. fin . Dig. eod. ca. 49. ext. eod. Satius est impunitum manere facinus nocentis , quàm innocentem condemnare . y y l. 5. Dig. De poen . Semper in obscuris , quod minimum est sequimur . z z l 9. Dig. De reg jur . Odia restringi , & favores convenit ampliari ; a a Ca. 15. ext. eod. and the like to an infinite number . Not any thing short of the same Seneca , b b Epist. 81. when he sayes ; Reus sententiis paribus absolvitur , & semper quicquid dubium est , humanitas inclinat in melius ; Where the suffrages of a Court are equal , the defendant stands acquitted ; and where any thing happens to be doubtful , clemency will alwayes pitch upon the gentlest resolution .

Neither does it derogate from the clemency of the Civil Law , that it seems to deal so sharply with those ( against whom there are grounds enough to suspect them of some enormous crimes whereof they are accused , but not evidence full enough to condemn them ) as to allow such persons to be c c Dig. & Co. de Quaestion . set upon the Rack , thereby to manifest their innocence by an obstinate denial , or to discover their guilt by a plain confession . For the onely ground of this austere proceeding was a great tenderness not to take away the lives of any , but upon most manifest and undeniable proof ; and yet with a care notwithstanding , that for want of such full and clear proof ( which offenders through their secret workings would alwayes labour to prevent ) offences should not go unpunished , to the endangering of the publick peace and welfare of other men .

When a man is criminally accused , there are but two wayes to convict him , either by his confession , or by proof . As to confession ; where is it seen that he that dares to offend highly , when he comes to be examined , does not deny it as boldly ? and who is there that does not excuse him for seeking thus to preserve himself ? Ignoscendum est ei qui sanguinem suum qualiter qualiter redemptum voluit , sayes the d d l. 1. Dig. De honis corum qui ante . Civil Law it self ; that is , He is to be pardoned , meaning as to punishment , that labours by any means to avoid the shedding of his own bloud . As to proof , the Romans were so tender of the lives and personal safety of their people , that to convict a man by proof it was no easie thing , but very difficult ; for they would neither inflict any corporal punishment , nor condemn any man to death , as some Christian States do at this day , upon the testimony of one single witness , though present when the act was done . e e Gomez . var. resel . Tom. 3. ca. 12. De Probat . delict. And in this it did exactly follow the best pattern of all other , the Law of God ; f f Deut. 19.15.17 6. Numb. 35.30 . One witness shall not rise up against a man for any iniquity , or for any sin , in any sin that he sinneth : at the mouth of two witnesses , or at the mouth of three witnesses shall the matter be established .

By the Roman Law therefore , before death or other personal punishment could be inflicted , there were to be two witnesses ; they must be free from all exception , and especially they must be none of the accuseds complices , who g g l. Final . co. de accusat . could not be evidence against one another ; they must not by remote circumstances , or by any light h h l. absentem parag . 1. Dig. De poen . presumptions , but clearly and concludently depose the thing ; and their testimony must be agreeing also not onely as to the act done , but as to place , time , person , and other material circumstances , wherein if they did vary or disagree , the proof was insufficient . Three of the Roman Emperours , Gratian , Valentinian , and Theodosius , did all agree in giving to all publick accusers this advertisement : i i l. 25. co. De Probat . Sciant cuncti accusatores eam se rem deferre in publicam notionem debere , quae munita sit idoneis testibus , vel instructa apertissimis documentis , vel indiciis ad probationem indubitatis & luce clarioribus expedita ; Let all accusers take notice , that they must offer that to publick Trial which is furnished with legal witnesses , or attended with most luculent proof , or may be made out by arguments of unquestionable conviction , and clearer then the light it self .

The case therefore thus standing , that the wickedness of Men was grown luxuriant and abounding , that it acted in secret altogether , that it would never betray it self , and witnesses sufficient enough to condemn them could hardly be found ; It was but necessary k k Bonum innocentis bono nocentis , bonum . commune privato ante habendum est ordinatae di ectionis lege ; ex dilectione autem innocentium capitalia judicia nata sunt . Grot. de jur . bell . lib. 1. ca. 2. sect 8. for the publick peace , and the safety of innocent and quiet men , to make them by a vigorous course of trial either fear to offend , or be instrumental to condemn themselves , rather then they should be encouraged to offend freely , out of a presumption that their evil actings should never be brought to light . For if there were but one positive witness that saw the thing done , as it was mercy and clemency in the Law not to condemn the accused presently upon so short a proof ; yet were it safe , were it not l l Sicut est aliquando misericordia puniens , ita est crudelitas parcens . Augustin . cruelty to all the people , were it not of ill example to absolve him quite without a further trial , meerly because there was no better proof ; which their ill-minded subtilty , making an ill use of the favour of the Law , was a cause of too ? So that to bring men to the rack in such cases for trials sake , is not to be censured for cruelty ; Non ex saevitia , sed ex bonitate talia faciunt homines , saith m m l. ad Corin. 3.12 . de paenis humanis agens . St Chrysostome ; Such things are done by men , not out of cruelty but goodness . And I must say with n n De justit . Roman . leg . lib. 2. dubit . 64. arg. l. 51. parag . ult. Dig. ad l. Aquil. Maestertius , who stifly maintains this proceeding in the Roman Law : sanè hic juris rigor ( si aliquis sit ) utilitate publica compensatur ; This rigour of the Law ( if it be any ) is recompensed with advantage to the whole Common-wealth ; for by the terrour hereof it is free from the machinations of wicked and lewd men . And though there have been some , as Ludovicus Vives writing upon St Austin o o De civit . Dei lib. 19. ca. 6. , and Sir p p ca. 22. John Fortescue in his praises of the Laws of England , who have with very much acrimony defended the contrary ; yet I must say to them as the q q l. 3. Co. Theodosian . De defensor . civitat . three Emperours , Valentinian , Theodosius , and Arcadius once said ; Removeantur patrocinia , quae favorem reis , & auxilium facinorosis impertiendo , maturari scelera fecerunt ; Away with those Apologies , that by assisting persons that are accused , and pleading on the behalf of wicked men , are an occasion for wickedness to spring up and fructifie ; for surely it must needs grow most , and wax most vigorous there , where it is most gently dealt withall : though as to the first , ( unquestionably a most learned man ) whosoever reads him in that place , he may see that he there condemns this trial by torture , looking upon it in the general onely , and as used arbitrarily and without any rule or measure at all , and not as it was practised under the rules and cautions of the Roman Law . As for the other , though he is zealous to prefer the Law of this Nation before the Civil Law , and all other Laws of the World besides , yet he could not have been so bitter in censuring the Civil Law in this particular , if he had remembred with what measure of severity those that are arraigned for capital crimes , are handled by that Law that he does so much commend ; which , because others of that profession have lately taken such free notice of , themselves need not mention .

And yet was not this practised amongst the Romans onely , nor r r More majorum introductum esse inquit Cicero , ut per tormenta veritas exquiraratur . in Partit . Orator . they the first authors of it ; for they took it from the Graecians , and from the people of Rhodes , whom they followed in most things . And s s Parat . Dig. de Quaestion . nu 3. Wesenbeck sayes of it , that it was mos antiquissimus , omnium ferè bene institutorum populorum communis ; ut non immeritò pro lege ac jure quodam gentium habeatur ; It was an ancient observation , common almost to all well ordered Common-wealths , that it may very justly be accounted of as it were a Law of Nations . And if we look into our own Historians , and t t Cowels Interp. verb. Ordei . Books of Law , we shall find that there has been a kind of trial very anciently in use amongst our selves here in England , very near to this of the Romans , and in severity no whit inferiour : For there were certain Ordeal Laws which were used in such doubtful cases , whereby when clear and manifest proofs were wanting , they did try and find out whether the accused were guilty or guiltless . And this they were wont to execute one of these three wayes , either by fire , or by water , or by combate . For sometimes men were enforced to decide matters in controversie not onely criminal but civil , by the death of one another in a Duel . Sometimes they were adjudged to take red-hot Irons into their bare hands ; and sometimes to u u Which was practised upon Queen Emma the Mother of King Edward the Confessor , to clear her self of Adultery with Allwin Bishop of Winchester , or as some write , upon Allwin himself . Hackwill . Apolog. of Gods Provid . lib. 4. ca 2 sect. 5. Isaacksons Chronolog. Anno 10●0 . walk bare-foot over red-hot plough-shares blind-fold . Their judgment by water was either by appointing the party accused to thrust his armes up to his elbows in seething hot water , or by having a cord tied about him under his armes , to be cast into some river .

In these cases , if the accused parties go over seven plough-shares laid a little distance one from another , and either tread besides them , or treading upon them with their bare feet , or taking the hot irons in their bare hands , did receive no harm : and so if the parties putting their armes into the hot water , were not scalded ; or they that were cast into a river , did sink down into the bottom thereof until they were drawn up ; they were pronounced innocent and not guilty : but if they were burnt by the hot irons , or scalded by the hot water , or could not sink to the bottome of the river , or were slain or vanquished in the combate , in such cases they were pronounced guilty .

But further , this great but most wholsome severity of the Romans , was tempered with a very great allay of tenderness and care towards the accused offender ; as may be seen by the many and most prudent cautions that were observed in it . For

First , the offence in which such trial was allowed , was to be enormous , and not so little x x Gomez . var. Resol . Tom. 3. ca. 13. nu. 2. as was to be punished by banishment or pecuniary satisfaction , but either death or corporal punishment was to follow it .

Secondly , it never could be had where there could be gotten a full and a sufficient proof to condemn without it . For this was to be the last means to bring forth the truth , when y y l 12. co. de . Quaestion . all other means did fail .

Thirdly , Before a man could be brought to the rack , the offence was to be made out z z Multis indiciis oneratus , & argumentis penè convictus reus esse debet . Wesenb . parat . dig . eod. nu. 7. with such an evidence , as in some other States would be sufficient to take away life it self , it the crime were capital : for either it must be proved by one witness who saw it done , or if it could no otherwise be made out then by circumstances , they must be very pregnant and convincing , and such circumstances must be a a Gomez . dict. ca. 13. nu. 18. proved at least by two witnesses .

Fourthly , the accused person had all free license given him to disable the accusers proof , to disparage his witnesses , or to offer any b b Si quaedam indicia pro reo sacient , quae elident contraria , ita ut amplius ea semiplenam probationem non impleant , ad torturam perveniri non debet . Wesemb . parat . Dig. De quaest. nu. 7.11 . evidence to the contrary ; and if the Judge did at last condemn him to be brought to the rack , he c c L. 2. Dig. De appellat . recipiend . might yet appeal .

Fifthly , it must be executed with a respect had to the strength or weakness of the body that is to suffer , and no further then may serve to draw out the truth , ut moderatae rationis temperamenta desiderant , sayes d d l. 10. parag . 3. Dig De quaest. Arcadius ; and , ut homo salvus sit vel innocentiae vel supplicio ; as may stand with all fitting and reasonable moderation ; and that he may be preserved either to innocence or to punishment .

Sixthly , The Law notwithstanding gave so little credit to any confession made under such bitter sufferings , because it might be extored by force , and out of a hope to be rid of the present pain , rather then that they were the words of truth , that it would never condemn upon any such confession , except the party accused being redeemed from his pain , and in his full liberty , did again confess the very same thing ; nor then neither , if that which was confessed were more probable to be false then true .

Lastly , the Judge that examined him in such extremities , was directed to bear himself so cautiously , e e l. 1. parag. 21. Dig. eod. ut non suggerere interrogato , sed ab eo potius veritatem requirere videatur ; that the truth should rather come freely from himself , then any thing should be suggested to him . He was also diligently to mind with what voice he spake , high or low , how freely such confession fell from him , or whether it came with reluctancy ; and to enquire what his credit and condition of life had been in the place where he lived . Plurimum in excutienda veritate , says f f l. 10. parag . 5. De eod. Arcadius , etiam vox ipsa , & cognitionis subtilis diligentia affert . Nam & ex sermone , & ex eo , qua quis constantia , qua trepidatione quid diceret ; vel cujus existimationis quisque in civitate sua est , quaedam ad illuminandam veritatem in lucem emergunt .

These were the cautions which the Roman State did prescribe to be used in this sharp , but as their policy stood ( who did not love upon a slender proof to take away the lives of their people ) very necessary course of trial by torture ; which peaceable and just men could not be offended with , because it was to g g Quippe cùm ne se quidem inter tot cruces & supplicia sontium satis tuta fit innocen . tia , sayes Grotius de jur . Beil . lib. 2. ca. 20. nu. 12. defend and secure them from the rage and the rapine of vile men : And if evil men did groan under that severity , they had their desert , and might h h Damnum quod quis sua culpa sextit , fiòt debit non al●is imputate . Reg. 86. De reg jur . in 6. thank themselves . And though it might possibly , howbeit very rarely happen , that some innocent man might wrongfully suffer sometimes under that trial ; yet what so perfect or exact a trial can there be devised or thought of , under which that rare accident may not also be ? for when we have done all that we can , yet we can still but judge as Men.

In defence whereof I have therefore taken the liberty to insist the longer , because once at a publick solemn meeting , where the keeping up of this Profession came to be considered of , I took notice that this small part of the Civil Law was enforced by a worthy Gentleman , quem honoris causa non nomino , as a main objection , upon which he would have that whole Law to be quite laid aside ; by which rule I know not what Law there is , or ever was , that would stand : and for this reason also , to shew how wise and rational that Law is , even in that which those that do not fully understand it , would so much condemn it for ; and how easily in all other matters it may be defended , if so well maintain'd in this . To go on therefore in pursuit of my first design .

The Civil Law will have rigour alwayes give place to equity . Placuit in omnibus rebus praecipuam esse justitiae aequitatisque , quàm stricti juris rationem , i i l. 8. Co. de Judic . sayes the Law ; It is enacted that in all things there ought to be a greater consideration of right and equity then of strict and exact rule . For if every case , when circumstances be clean different , should be measured by one and the same rule , sub authoritate juris scientiae perniciosè aliquando erraretur , sayes Paulus k k l. si servum . dig . de verb. chlig . parag. 3. ; Under pretence of observing Law , we may at one time or other fall into dangerous errour . If a man leaves goods in my hands to keep for him , the Law doth strictly enjoyn me to restore them when they are demanded l l l. Tot. Tit. dig . Depos . : But if afterwards this mans goods shall be confiscate , as being condemn'd for some capital crime ; or if it appears that these goods were stollen , and that the true owner comes to claim them , I should erre injuriously to keep my self to the strict rule of restoring the goods precisely from whence I had them , and not to deliver them up to the State , or to return them to the true and just owner . Haec est bona fides , sayes Tryphoninus , m m l. 31. dig . Depos parag. 1. ut commissam rem recipiat is , qui dedit . Sed si totius rei aequitatem , quae ex omnibus personis quae negecio isto continguntur , impletur , mihi reddenda sunt , à quo , facto scelestissimo adempta sunt . Et probo hanc esse justitiam , quae suum cuique ita tribuit , ut non distrahatur ab ullius justiore repetitione ; It is honesty to return the goods to him that left them with me . But if the equity of the whole case be considered , and the persons that are concerned in it , they are better returned to him from whom they were unjustly taken . I allow that justice , sayes he , which does so render back to every one his own , as that thereby no injury is done to another who has a better right therein .

And from this equity is it that several wayes and means are ordained , of restoring men to their first state and condition , from whence in strictness of Law they are fallen : For if a man through threats , or any crafty practice of another , or by his want of full age , or by his being not present , or through some slip or errour which a wiser then he might have committed , be fallen into some great mischief , equity in such cases will relieve him against the Law . n n Tot. Tit. Dig. de in integ . rest . Hence is it that the Law appoints the Judge , aequitatem semper ante oculos habere , o o l. 4. parag 1. Dig de eo quod cert . loc. to have equity before his eyes ; and that upon the entrance into his office he shall take an oath , quòd in judicando velit aequitatem sequi , p p Nevell . 8. that he will judge according to equity ; and that all bargains are to be interpreted by equity . q q l. 81. Dig. Prosocio . Also sometimes we may depart from the very nature of the contract , and the very words of the will , to follow equity . r r Brouch . l. 90. Dig de reg. jur . Also solemnities and formes of Law , though they ought to be most carefully observed , because they are ordained as rules for all cases ; yet upon the ground of manifest equity there may be a deviation from them too . Et si nihil facile mutandum est ex solennibus , tamen ubi aequitas evidens poseit , subveniendum est . s s l. 7. Dig. de in integr . rest .

And yet will not the Law allow of the 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 t l. 12. parag 1 : Dig. Qui & à quib man . Vetantis legit major est potestas , quàm aequitatis , tujus speciem obtendere suae cupiditaticuique liceret . Bodin de rep● lib. 1. ca. 8. Glementiores 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 quàm 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 procedere , 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 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 x Novell . 115. ca. 5. Nor can any legal process be served upon those that are accompanying the corps to burial . y 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 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 essa 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 a l. 38. Dig. de Mortu Infer . And generally without exception either of place or person , sayes directly , that no such fee or toll shall be paid . b b Graec. Cod. de relig. & sumpt . fun l. 15. In nullo quopiam loco vectigal ab aliqua perfona 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 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 y Tot. Tit. Dig. & Cod. de fepulch . 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 z l. 8.39 . Dig. de relig. & sumpt . fun . 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 a l. pen. Dig. de relig. & sumpt . fun . l , 3. Co. eod.

In all its constitutions it opposeth and setteth it self against the oppression of great ones , and hateth that wrong that comes from the potency or greatness of any person . If a person of honour shall forcibly carry away a Virgin , or invade the possession of another , he shall be tried by the ordinary Judge of the place where he offendeth , and not be allowed any higher or more noble Judge , which else he may claim to have : for omnem hujusmodi honorem reatus excludit , sayes the Text of the Law ; b b l. Co. Ubi senato . vel clariss . His guilt renders him uncapable of any such Honourable Priviledge . Neque honos ei servatur qui se in tantum scelus deduxit ; c c l. 47. Dig. de ritu nupt. Honour is no protection for him that hath stained it with such an odious crime .

It will not allow persons of great power or high place to interest themselves in the controversies or litigious estates of others , neither by solliciting them in Court , nor having their names used to countenance them ; ne tenuiores importunis potentium intercessionibus opprimantur , sayes the Text ; d d l. 1. Co. Ne lieiat potent . patrocin . that is , lest might should bear down and be too hard for right . Nay , it will not admit either the publick Exchequer or the Common-wealth , upon any pretence of debt , gift , or assignment to them made , to lend their name or patronage for the asserting of others rights . e e Tot. Tit. Co. Ne fiscus vel resp . procuration . Ne inde injuriarum nascatur occasio , unde jura nascuntur ; f f l. 6. Co. unde vi . that is , lest they that should do most right , should be the occasion of doing the greatest wrong .

And it is remarkable , how disdaining the expressions of the Law are in that particular , and yet but such as upon the like occasion are frequent and common in the Law every where . Petition being made to Gordian the Emperour , that he would suffer it , his answer was , Contra juris rationem desideras ; g g l. 1. Co. Ne fiscus vel resp . The request was opposite to right reason . The same Emperour being asked again the same thing , said , Hoc temporum meorum disciplina non patitur . Vnde jus tuum , si quod tibi competit , citra invidiam fisci mei tueri solenniter cura ; h h l. 2. Co. eod. that is , it agrees not with my fashion or government so to do . If therefore you have a right , prosecute it in your own name , without drawing into odium my Exchequer . The Emperours Dioclesian and Maximilian to the same thing peremptorily say , Abhorret à seculo nostro ; i i l. 3. Co. eod. It was a thing that he and all of his time abhorred : And again , k k l. 4. Co. eod. that it was contra seculi sui tranquillitatem ; It would be an inlet to a general distemper to permit it .

It will not endure any fraudulent , fallacious , or deceitful dealing . l l Tot. Tit. Dig. & Co. de Dol. mal . If a man does wilfully alien to defraud his adversary , his act is vain ; for in the eye of the Law he is taken to be in possession still . Qui dolo desierit possidere , pro pessidente damnatur ; quia pro pessessione dolus est . m m l. 131. Dig. de reg. jur . Especially it hates deceit most in those , whom it is most forward to relieve when they are deceived . The Civil Law allows not a woman a capacity to be surety or to be bound for others , though she might contract for her self , propter inbecillitatem sexus , being prone to be drawn in and to be wrought upon ; n n Tot. Tit. Dig. ad S. C. Velleian . Which restraint did bind her from being bound for her own husband . o o l. 2. Dig. eod. But if when she knows her priviledge , and will cunningly dissemble it , and offer to be bound notwithstanding , and the creditor is such a one as may be justly ignorant of the Law in that particular ; or if she presents herself in mans apparel , the Law will not relieve her , but she remains subject to action : For , ita demum mulieribus subvenitur , si non callidè sint versatae : Infirmitas foeminarum , non calliditas , auxilium meruit ; p p d. l. 2. parag. 3. It is their ignorance and weakness that the Law favours , and not their craft and subtilty . So no act is binding to him that is under age . q q Tot. Tit. Dig. de minor . But if he shall fallaci majoris aetatis mendacio aliquem decipere , say and pretend to him that deals with him that he is of full age when he is not , in that case he stands obliged and is remediless . Nam errantibus , non fallentibus , publica jura subveniunt ; r r l. 2. Co. si min. se major . dixer . It is errour and imprudence , and not fraud , that the Law will succour .

Ingratitude is so odious in the Civil Law , that if a slave that has been manumised shall bear himself unthankful towards his Master , or if a son shall recompence the benefit of being quit of his fathers power and command , with some injurious act or office against his father , they may both for their ingratitude be brought into their former yoke again . s s Wesenb . Parat . Dig de obsequ parent . & patron . praestand . And generally , if I have out of my free bounty bestowed any thing upon another , if he shall attempt to betray my life or estate to mischief , or pass upon me any weighty injury , I need not suffer my bounty to remain with so unworthy a person , but may recall it again from him ; t t l. 10. Co. De revocand . Donat. Cùm magis in eos collata liberalitas ad obsequium eos inclinare deberet , quàm ad insolentiam erigere ; u u l. 1. Co. eod. Since bounty ought to invite men to be rather obsequious then insolent . Howbeit my heir , if I die , shall not sue to recovet it : Etenim si ipse qui hoc passus est , tacuerit , silentium ejus maneat semper , sayes the Law : x x d. l. 10. If I against whom the ingratitude was committed did not complain , let it be buried in silence for ever .

The elegance wherewith it has expressed its detestation and severity against the odious and unnatural sin of men carnally mixing with one another , is very remarkable : Cùm vir nubit in foeminam viris porrecturam , quid cupiatur , ubi sexus perdidit locum ? ubi scelus est id , quod non proficit , scire ? Vbi Venus mutatur in alteram formam ? Vbi amor quaeritur , nec videtur ? Jubemus insurgere leges , armari jura gladio ultore , ut exquisitis poenis subdantur infames , qui sunt vel futuri sunt rei . y y l. 31. Co. ad l. Jul. de Adult . The state and quality of the matter requires me not to translate the words , though most elegant .

The order that the Civil Law has setled for the sharing of a mans estate who dies intestate , is very natural , just , and rational . It sets no difference between land and goods , nor between eldest and youngest , nor male and female , but divides the whole equally amongst them ; yet it has a respect to distance and propinquity of degrees , and considers the whole bloud and the half after a different manner . It calls first children ; if they fail , then parents ; if they fail too , then the next collateral kindred . z z Novel. 118. de haered. ab intest venient . inprinc . And when I say that children shall succeed in the first place , I do thereby exclude and bar Grand-children , so long as their parents are alive : for proximior in gradu semper remotiorem excludit ; a a Parag. si plures Inst. de legit . agnat . succes . the nearer in degree shuts out those that are further off . Yet if there were divers children at first , and one of them is dead , who has left children , such Children and Grand-children shall succeed together , but they shall not all share alike : for as the children amongst themselves shall partake equally ; so the children of him that is dead , if there be never so many of them , yet all representing their father and coming under his right , they shall all have but that portion which he should have had if he had lived . b b Parag. rum filius . Inst. De haered . quae ab intest . defer . And this the Law calls a succession in stirpes , there being no consideration had of their number , but of their stocks onely . And though all the children of the first degree should die , each of them leaving their several children , be the number equal or unequal ; yet still the children of each child shall have but the fathers or mothers part ; c c Parag. fin . Inst. cod . for still they succeed in right of their ancestour , and not in any right of their own . d d Wesent . Parat . dig . Unde cogra .

When children and all of the descendent line do fail , the Law does not onely admit the father and mother in the next place to succeed equally ; but if they fail , the next in degree above them in the ascendent line , as Grand-father and Grand-mother , shall come in to inherit . And if there be both Grand father and Grand-mother by the fathers side , and Grand-father and Grand-mother by the mothers side , the estate shall be divided into two equal parts ; the Grand father and Grand-mother by the fathers side to have one , and the Grand-father and Grand-mother by the mothers side to have the other ; and though there be but one of one side , and two of the other , yet the division must be the same . e e Ca. 1. dict. Novel. 118.

But if the person that is dead intestate , left Parents in the ascendent line ; and near kindred in the collateral line , as brothers and sisters ; the one shall not exclude the other , but they shall all be admitted together , to divide the estate equally , every person carrying away an equal share ; f f d cap 2. and if there be children of a brother that is dead , they shall come in too , but no further , then to carry away their fathers part . g g Schneidw . Inst. de haered: quae ab in t . Tit. de secund. ordin . succe . l. nu. 29. Howbeit , they must be brothers or sisters of the whole bloud to him that is dead , who would come in with the parents : for brothers or sisters of the half bloud shall not concur with them . h h schneidw . loc. cit ●t . nu. 30.

Where the descendent and ascendent line doe both fail , if there be brothers alone , they have all alike ; but if there be children of a brother that is dead concurring with them , they must yeeld to the children their fathers part . But if there be brothers and sisters children onely , the brothers and sisters being all dead , though there be never so many of one brother , and but one of another , and two of one sister and but one of another , yet all these brothers and sisters children standing alone , how unequal soever they be in number , yet they shall all share equally ; not each stock having what their fathers should have had , but every person having his equal part in the whole : i i schneidw . loc. eit . Tit. de Tertio ord. succed nu. 29. And this the Law calls sucessio in capita , a succession by the poll . The reason why they succeed thus differently when they are alone , from that which they do when they concur with brothers and sisters to the deceased , is , because here they derive no right from their ancestour , but succeed by a right of their own , being now the deceaseds next of kin : whereas in the other case they succeed by way of representation , and in the right of their parent only .

But if brothers and sisters and their children do both fail , it is a certain and uncontrouled rule , That whosoever is next in degree to him that is dead , after these in the collateral line , bars and shuts out all of any degree that is further off . k k Auth. post . fratres . Go. de legitim . haered . For the right of representation reaches no further , nor to any other then to brothers children in the collateral line . l l Ca. 3. diot . Novel , 118. Wherefore if a man dies leaving Uncles and Aunts both by father and mother , they are all admitted to have equal shares ; but no children of any Uncle or Aunt that is dead , shall be admitted to come in with them . And so much the Civil Law prefers the whole bloud before the half , that if a man dies , leaving Brothers of the whole bloud , and Brothers of the half , the whole bloud onely are admitted , the half being quite excluded . m m Auth. Cessante co. De legitim . haered . Nay further , a Brothers son of the whole bloud shall carry away the estate from the Brother of the half . But if there be no Brothers or Brothers children of the whole bloud , then the Brothers and Sisters of the half and their children are let in , to exclude remoter kindred . n n d. Auth. post fratres autem . Howbeit though the being of the half bloud be a bar to succession in Brothers and Brothers children , yet does it bar no other further off then they . If therefore a man dies leaving two Uncles , the one Brother of the whole bloud to his father , the other Brother of the half , the whole bloud here shall not exclude the half , but they shall both succeed alike . For in the collateral line , after Brothers and Brothers children , solùm consideratur proximitas & paritas graduum , non duplex vinculum conjunctionis ; the nearness in degree is onely to be respected , and not the bloud . Wherefore they being both in an equal degree , they are to be dealt withall in this point of succession equally . o o schneidw loci citat : Tit: De tertio erd : succed : nu: 34.

As for the wife , because under the Roman state she might have a three-fold patrimony of her own ; First her dower , secondly , the goods that she brought in marriage to her husband over and above , call'd bona Paraphernalia , or bona extra dotem ; and thirdly goods or estate that she kept in her own hands , which never came to the hands of her husband : p p Paul de castr : in l. maritus . 21. co : de procurat : And because by the course of the Civil Law , both her dower and the goods that she brought besides over and above , her husband being dead , came back to her again , the husband having but the use of them during life ; q q l. 4. co. solut : matrimon : therefore where there was either children or kindred , it did not admit the wife to have any part or portion in the husbands estate , but did leave her to enjoy her own .

But if the case were such , that she had no portion to bring in marriage , or had but a slender one , and that she has nothing or not enough of her own to subsist with , nor otherwise be provided for by her husband , the Law does then allow her a fourth part out of her husbands estate , if there be three children or under ; but if there be more , she shall then have an equal share with them for her life . But if there be kindred onely , and no children , or if the children that be , be not her children , but children of another marriage , she shall have the property thereof for ever . r r Auth: praeterea . co. Unde vir & Uxor : schneidw : loc: citat : Tit De sucees : inter v. r : & ux : tu : 14. sl . 20. Co. De Transact ,

But there is nothing that the Civil Law is more strict and sollicitous in , then to keep men fast to such promises , covenants , and free gifts that they have made to others , though made never so liberally and freely , and without any consideration at all . Nihilita fldei congruit humanae , quàm ea quae placuerant , custadiri ; s s l. 20 Co. De Transaot . Nothing suits better with common honesty , then that those things which have been once assented unto should be observed . Which it will have binding and obligatory , though any right or property that a man has , be thereby passed and conveighed away . Nihil tam conveniens est naturali aequitati , quàm voluntatem domini volentis rem suam in alium transferri , ratam haberi ; t t Parag. 1. Inst. De v. rb . ohligat . Nothing does nearer approch unto natural equity , then that the minde of any man who once puts over any thing that he has to another , should stand of force . And the Law is the same , when a man without any asking does of himself freely give any thing to another , though he does not presently part with the possession . u u l. 35. parag . ult Co. de Donat. The reason that is given by the Law is , Cùm in arbitrio cujuscunque sit hoc facere quod instituit ; oportot eum vel minimè ad hoc prosilire , vel cùm venire ad hoc proper averit , non quibusdam excogitatis artibus suum propositum defraudare , tantamque indevetionem quibusdam quasi legitimis velamentis protegere ; When it is in every mans free power to do as he purposes at first , he ought either not to offer it at all , or when he has gone so far as to pass his word , he should not seek by any devised artifices to slip from his first intention , or to prop up so much unworthiness with any fair or colourable pretences . Onely a free giver has this favour shewed him , that he shall not be urged to make good his word any further , then in quantum facer● potest , habita ratione ne egeat , so far as he is able to perform , and not want himself . x x l. 28. Dig. de reg jur . Nor shall he be so severely dealt with , as one that has debts to pay , Pinguius donatori succurrere debemus , quàm ei qui verum debitum persolvere compellitur ; ne liberali.tate sua inops fieri periclitetur , sayes the Law ; y y l. 49 , 50. Dig. De re judic . We must lend a more favourable hand to a free benefactor , then to one that is to pay a just debt ; lest a mans freeness should expose him to the danger of extreme want and penury . And albeit it be a rule in the Civil Law , that a bare promise or compact , call'd Nudum Pactum , is not obligatory , nor shall give any cause of action : z z l 45. Dig. de pact . Yet when there is discerned a seriousness and an advised purpose in the promiser , so that he does not do it suddenly , and ad captandam benevolentiam , to get favour onely ; or if it be manifest , that he does it out of pure liberality , the want of recompence or consideration will not make it Nudum Pactum , but that an action shall arise upon it , and he shall be bound to perform it . Or if such promise or compact be put into writing , which may argue it to be serious and deliberate ; the defect of a valuable consideration will not make it to be a Nudum Pactum , but that it shall bind ; and he that made it shall be enjoyned to perform it also , though he received nothing at all in recompence for it . a a Maestert . de just . Roman . Leg. lib. 1. ca. 31 , 33.

When the Civil Law gives way to two that are indebted each to other , that when either sues , the other may plead in bar the debt which the complainant ows him ; which if it be equal , it strikes it off wholly , or lessens it if it be under , and so by discounting , a mutual discharge arises without any money paid ; or not so much as is demanded ; who sees not that this part of the Civil Law is established upon so much natural equity and reason , that it had been a Law of it self , if the Romans had not made it so , and ought to be of force every where throughout the World , it is so full of pure justice and reason ? Interest enim nostra potius non solvere quam solutum repetere ; b b l. 3. Dig. de compensat . It is an advantage rather not to pay at all , then to pay once , and be put to demand the same again . And , dolo facit qui petit id quod mox redditurus est . c c l. in condemnatione . parag. 3. Dig. de reg. jur . His intent must needs be fraudulent , that will exact that which he must render again to him from whom he receives it . Besides , he that will rightly ask his due , must yeeld to another what is due to him . And albeit it may be said , that he may also sue to recover that which is owing unto him ; yet , frustra fit per plura quod fieri potest per pauciora ; d d l. 10. Co. De Judic . A second action is a needless trouble and charge , which may be brought to an end by one . Stoppage therefore is unquestionably the most natural , equal , and easie way of payment ; provided , that the debt that is set against the debt demanded , be of the same kind , and clear without dispute ; which if it be , it may be pleaded even after judgment , to hinder execution . e e Sichard . in Rubr. Co. de compensat . Yet it will not suffer me to plead a debt against him that has put into my hands a summe of money in trust to keep for him , because my faithfulness and truth was here relied upon ; nor against the Exchequer that demands tribnte or custome , for that the safety of the people is therein concerned . f f Parag. 30. Inst. de act. l 3. Co. de compensas .

The Romans did so throughly see the necessity that lay upon men to perform mutual offices and kindnesses each to other , that to encourage men the more to pay these reciprocal duties , so necessary to each others common being , the scope of their Laws tended to secure all men from sustaining any prejudice by being officious or active for the benefit of other men . If therefore in my friends absence I expend money , or contract a debt upon my self to accommedate and improve his business , though I did it without his privity or knowledge , the Givil Law will see all that I have laid out shall be restored me , and will compell him to save me harmless , where either I have or can possibly suffer detriment for his sake . For , sicut aequum est , sayes Gaius , negociorum gestorem actus sui rationem reddere , & eo nomine condemnari , quicquid vel non ut oportuit gessit , vel ex his negociis retinet : ita ex diverso justum est , si utiliter gessit , praestari ei , quicquid eo nomine vel abest ei , vel abfuturum est ; g g l. 2. Dig. de nego . gest . As it is but fitting , when I undertake to act in another mans business , I should give an account for what I do , and answer for any thing I have done amiss therein , and render unto him such profits as his affairs and goods have yeelded : So on the otherside it is but just , where I have served him with success and advantage , that there he should reimburse me all that I have usefully expended , and free me of all present and future prejudice whatsoever . Hence is it , that if I pay another mans debt with my own money ; or free from captivity anothers son or such neer kinsman , whom nature would oblige him to redeem , or if being a Physitian I attend and prosecute the cure and recovery of anothers servant that is sick or wounded : in none of these cases will the Law suffer me to be a loser in any measure ; for what cost I have been at , or whatsoever I have disbursed shall be allowed me : Iniquum est , sayes Gaius , officium suum alicui esse damnosum ; h h l. 7 Dig. Testam . quemadm . aper . It is unreasonable , that a man for his courtesie and goodness should reap a prejudice . Upon the equity hereof is that proceeding in the Admiralty Court clearly justified , whereby , if a Ship being set upon by Pyrats or by enenemies , shall be rescued by anothers Ship seasonably coming in to her rescue ; it charges the Ship that is thus redeemed with salvage money to the other that did so endanger herself , to preserve her ; that recompence being but in lien of all dammages thereby sustained , and for future encouragement to others to fight in the defence of those that they see assailed hereafter . Upon the same equity is it , that when a Ship is in danger to be cast away through a raging tempest , if to lighten the Ship , some of the heaviest goods belonging to others be thrown overboard , and thereby the Ship and the rest of the goods comes safe home , the loss is made common and reparable by the whole . Aequissimum enim est , sayes Paulus , commune detrimentum fieri eorum , qui propter amissas res aliorum consecuti sunt ut merces suas salvas haberent ; i i l 2. Dig Ad leg . Rbod . It is most equitable , that their wares should joyn to make up that loss , which was the onely means whereby they were preserved .

In like manner , though goods taken at Sea by Pyrats from the true owners , may be challenged and regained from any hands , where ever they shall be found and met with ( though it is otherwise in goods taken by an enemy in a just and open war ) yet if a man shall expend his own money to redeem them out of the Pyrats hands , not for his own use , or to make a good bargain for himself , but with an intent to bring them home to their true owner ; in this case , if the owner will have them , he must first lay dawn the purchase money . k k l. 6. Dig. de Captiv . & postlim . revers l. 2. parag . 3. Dig. ad . leg . Rhod. Nay , sometimes the Law will enjoyn a man to pay for that which he had got before . For if three be taken prisoners in war , and one be permitted to go home to procure mony to pay for the ransoming of them all , & a condition added , that if he that is let go returns not , the two that are left behind shall stand ingaged for his ranfome as well as for their own ; in this case what money soever they lay down for him , he is bound to repay them , though he had gotten his liberty before . l l l. 21. Dig. de . Negoc . gest . For the Law will not suffer a man to be damnified by any act which is done usefully in contemplation of another .

And herein the Law does not so much look upon the success or sequel , as the good will and probable undertaking . And therefore if I should fence or cast a wall about another mans Island to keep it from overflowing , and it is overflown notwithstanding ; or if I bestow paines and cost to cure another mans child or servant , and he dies , yet the Law will see me satisfied . Nam sufficit , si utiliter gessi , et si effectum non habuit negocium , sayes Vlpian ; m m l. 10 Dig. de . negoc . gest . It is sufficient that I did what was to be done , though the intended effect did not ensue .

But here some caution and wariness must be used . For he that thus acteth for another , must be sure that he does no more then he that he acteth for would have done for himself , neither must he expend any more then is profitable and necessary , and he can bear . n n l. 10. parag . 1. Dig eod. Also he must not act after any countermand be once sent him , or that he be once bidden to desist . o o l ult. Co. eod. For in neither of these cases will the Law help him .

Further , if he be a father , or other of most near relation , that deals for the benefit & in the concernments of such 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 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 U●pian , negocium debet utiliter esse coeptum ; q 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 r I egis vi●us est in perare , veta●t , permi●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 LAWS 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 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 b Pe●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 constitution , and language soever : It was the common c c Nihil principe diguius , nihil magis optandum , quàm dissidiorum ac bellorum inter popules arbitrum ●ieri ; ut olim S●natus Populufque Romanus propter summam virtutis quam de se ipse concitarat ●pinionem . Bodin . de rep. lib: 5. ca. 6. Judge and Umpire to arbitrate the differences of other Princes and people : It was the seat of Learning , and receptacle of all learned men : It continued flourishing many hundreds of years ; during all which time it dealt in affairs of the greatest consequence and variety , and did increase in great plenty and abundance of all things ; and whatsoever was in any kind rare , curious , or exquisite in any part of the earth besides , it was brought thither . And therefore Athenaeus has not doubted to call Rome in express termes , 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , the Abridgment and Summary of the whole World ; as if Rome wanted nothing which all the other parts of the earth afforded ; or as if we ought to esteem it Orbem in urbs , the wide World confined in that one City :

In congruity therefore of reason must it be concluded , that a Nation in all other things so much superiour unto others , must also have Laws and rules of conduct proportionable ; else could they never have brought to pass so great and glorious things as they did : For by the benefit of wholsome Laws and prudent order is it , that great atchievements are accomplished in a Common-wealth , and such mighty works effected . Hereupon Tully contemplating the Laws of Rome as well as their riches , does deelare , tautam sapientiam majoribus suis in jure constituendo fuisse , quanta fuit in his tantis opibus imperii comparandia ; they shewed as great wisdome in framing their Laws , as they did in getting the infinite wealth which their State then had .

And well it is observed and delivered by many later writers , that in the Romane Empire , the greatness thereof is rather to be imputed and ascribed to the wisdome of their Laws and Government , then to their armes and valour . And although in Vegetius his opinion , Disciplina militaris acriter retenta principatam terrarum Romano imperio peperit , Their strict holding to the rules of Martial discipline made the Romans Masters of the world ; yet Sulpitius the Poet will not give it to that onely , for in his judgment , Duo sunt quibus extulit ingens . Roma caput , virtus belli , & sapientia Pacis . it was their wise government in peace , as well as their success in war that did so highly advance their City ; for what their armes did get , their Laws did keep , according to the saying of Florus , Viribus parantur provinciae , jure retinentur . Thomas Aquinas d d Lib. 3. de Re. gim . Prineip . ca. 5. sayes , that though they got the Empire first by injustice , rapine , and bloud-shed , yet they did deserve to hold it and to have it established upon them , for the good Laws they had ordained .

Saint Austin e e Lib. 5. De civit . Dei ca: 12. designing to set down how it came to pass that God did so exalt and enlarge the Roman Empire , and what actions were the cause thereof , imputes it to their virtues , and to their heroick and gallant mindes ; to their prudence and honesty , rather then to their strength and power . For he brings in Cato speaking to the Romans of his own time , that had much degenerated from their Ancestors : Think not , saith he , that our Ancestry brought the City into this height by armes ; if it were so , we should make it far more admirable then ever , for we have greater plenty and abundance of men , more confederates , a greater store also of armes and horses then they had . But they had other means which we want , industry at home , equity abroad , freedome in consultation , and purity of minds in all men , free from lust and enormity : For these we have gotten riot and avarice , publick beggery and private wealth : riches we praise , and sloth we follow : good and bad are now undistinguished , ambition devouring all the rewards due to vertue . Nor wonder at it , when each one patcheth up a private estate ; when you serve your lusts at home , and your profit and partiality here in the Senate . This is it that laies the State open to all incursion of others . Again , in the same place he sayes of them , That they were greedy of praise , and bountiful of their purses ; they loved glory and wealth honestly gotten ; Honour they dearly affected , but through virtue , offering willingly both their lives and their estates for renown . The zealous desire of this one thing made them set aside all other inordinate affections whatsoever ; and hence they desired to keep their Country first in freedome , and then in Soveraignty ; because they saw how baseness went with servitude , and glory with dominion . f f Amorc primitùs libertatis , post etiam demin ●tionis , & cupidit . te laudis & glo i. e multa magna seterunt .

And then concludes ; Wherefore , saith he , whereas the Monarchies of the East had been a long time glorious , God resolvèd to erect one now in the West also , which although it were after them in time , yet should be before them in greatness and dignity . And this he left in the hands of such men , ( which he supposes were not the generality of the people but some few only , but those very good and gallant men ) to punish the loud and crying guilt of other Nations . And those men were such , as for honour and dominations sake would have an absolute care of their Country , whence they received this honour ; and would not stick to lay down their own lives for their fellows , suppressing covetousness and all other vices onely with the desire of honour . g g Pro islouno vitio , id est , amore laudis , pecuniae cupiditatem , & mult● alit vitia corrum pentes ;

And then in the fifteenth Chapter of the same Book , speaking still of the Romans , and the course they took in the prudent conduct of their affairs , he closeth thus most excellently , His emnibus artibus tanquam vera via nisi sunt ad honores , imperium , gloriam : honor ati sunt in omnibus fere gentibus : imperii sui leges imposuerunt multis gentibus : hodieque liter is & historia gloriosi sunt pene in omnibus gentibus . Non est quòd de summi & veri Dei justitia conquerantur ; perceperunt mercedem suam ; By these Arts as by sure steps they climbed to honour , rule , glory : their name was magnified almost in all Nations ; they sent out their Laws to many Nations , and they were obeyed : there is almost no Nation , but their Histories and writings mention them . No reason have they to murmur at the justice of the true and high God ; they have had their reward . h h Terrenam gloriam excellentissimi imperii Deus ●orcessit , ut redderctur merces bonis artibus corum , id est , virtutibus , quibus ad tan . tam gloriam pervenire nitebantur .

Although therefore the Romans 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 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 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 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 & prop●gasse , ut simul propagaretur honesta eorum Politia , & reprimeretur incondita barbaries aliarum gentium , sayes Baldwine ; m 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 n Romani trium pulcherr ●imarum virtutum , justitiae inquam , fortitudin●s , ac prudentiae laudibus , imperatoriisque artibus cumulaeti , populos omnes in sui admirationem converteru●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 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 by Pomponius himself in his large Narrative of the beginning and progress of the Civil Law ; p p l. 2. Dig. De orig. jur . and as much by Justinian himself . q q Parag. 10. Inst. de ju . nat. gent. & civ .

And hence it is that every where throughout the Body of the Civil Law frequent and common mention is made of the Laws of the 12 Tables , and several of them entirely recited ; and some of them confirmed and enlarged ; others quite taken away ; some of them diminished onely , as to some circumstances ; others interpreted , as being very obscure and doubtful ; some declared in what cases they shall be of force , and in what not : and others stretch'd to other cases not provided for in express words , but in presumption thereby intended , because so much alike to them that were expressed .

It was a Law of the 12 Tables , Vt si quis hostem concitasset , civemve hosti tradidisset , capite poenas lueret ; r r Part. 2. ca. ● . that is , if any shall stir up an enemy , or betray to the enemy any subject , he shall be punished with death . The same Law is cited in l. 3. Dig. Ad l. Jul. Majest . where and in other Laws of that Title it is declared , it shall be high treason for any man to contrive any mischief against the State , either in raising tumults or levying war against the supreme power of it , or even against the enemies of it without commission ; or in holding correspondence with the enemy , or sending any manner of aid unto them , or in helping to bring them into the Territories of the Common-wealth , or to betray the army or any part thereof , or any place of strength into the enemies hand , or indeed to surrender it cowardly without fighting when it may be kept , or to plot how publick hostages may escape , or for a General to leave the army without leave obtained , or not to give up his charge to him that by publick appointment is to succeed him , after the State has once discharged him : The punishment whereof is not onely capital , but the memory and name of the offender is to be remembred no more , his goods are confiscated , and not to go to his own children . s s Li 5. Co. ad l. Iul. Majest. parag. 1.

Again , by the Law of the 12 Tables it was provided , first , that the custody of such as were mad , and the managing of their estate should be in the hands of the next heir male : Also if any one come to be a prodigal or spend-thrift , the Magistrate first examining the matter , should forbid him the ordering of his own estate , and the administration thereof should be in the next heir male . t t Part. 3. ca. 5 , 6. The last of which laws may be found single in l. 1. Dig. De curator . furios . and both of them joyned together Inst. De curator . parag. 3. Where the care of the Law in providing governours for those that are not able to help themselves , nor follow their affairs , is extended to Idiots , to persons that are deaf and dumb , and to such as labour under such an incurable disease as is never like to leave them , and renders them unfit to attend their business , as well as to mad men & prodigals ; declaring him to be a prodigal , Qui neque tempus neque finem expensarum habet , sed bona sua dilacerando & dissipando profundit , who wastes without regard either of time or measure ; a mad man , qui rabie quadam animi agitur , who is in a violeut fury ; an idiot , qui sine tumultu ac clamoribus desipit , who is void of understanding , but never rages . And further , the Law proceedeth in avoiding and disanulling all contracts , negotiations and dealings , which such persons shall have made for themselves , after Guardians are once assigned them ; yet with this difference , that a Prodigal , or such as have common reason , though otherwise very impotent and needing a curator , may contract to advantage themselves , though not to their loss and hinderance : But such as want capacitie and understanding , can do no good for themselves . u u L. 6. Dig. De verb. oblig . l. 5. Dig-dereg . jur .

And although the Law of the 12 Tables seems to bestow upon the Guardian of such disabled persons absolute power over their estates , yet the Civil Law will have that understood to reach no further then to the husbanding of their estates for their use and benefit ; for it will not permit them to sell , aliene , or mortgage any thing that does belong unto them , except that upon examination of the Magistrate it be found advantageable and fit to be done , and that the Magistrate does expresly make his decree to that purpose . Insomuch as if money be taken up by the Guardian for the need and to the use of any such person , and his land mortgaged for payment of it , yet if it be not done by the license of the Magistrate , the serving of that impotent mans necessity how extreme soever , will not make that mortgage the more forcible ; such care has the Law to preserve the patrimony of such from being pass'd away . Yet since the money lent was so well imployed , the Law that suffers no man to be enriched with anothers detriment , gives the lender a personal action whereby to recover what he lent . x x L. 2. Co. de curat . furios .

Lastly , does the Civil Law afford more plentiful provision on any subject then that of last Wills and Testaments ? Yet the first rise and foundation of all that is written therein , came first from that Law of the 12 Tables ; Vti quisque rei sui legasset , ita jus esto , y y Part. 3. ca. 11. that is , As a man shall order by his will in any thing that is his own , so let it be . The very words of which Law are repeated , Inst. De leg . Falcid . in princ . and l. 120. Dig. De verb. signific . But the questions falling under this head , do not onely take up whole titles in the Law , and those very large ones too , but also many of them lie dispersed up and down in all places and parts of the Law .

So that generally it may be observed , what Laws soever are written almost on any subject , are but as so many explanations or enlargements , made by the old primitive Lawyers , such as Gaius , Scaevola , Papinian , Vlpian , Paulus , Affrican , and the rest of those Worthies , and are as it were their Comments on the Law of Nature and of Nations , and upon this Law of the 12 Tables ; at first a forreign Law , but brought into the Roman Common-wealth by a common consent of all the people , from such Nations as for rule and government might justly be an example to all their neighbours .

In like manner the Sea Laws that were admitted into the Roman State , and incorporated amongst their Laws , were fetch'd from another people , namely the people of Rhodes , Islanders in the Carpathian Sea , bordering upon Caria in Asia , who in respect of the mighty concourse of seafaring-men thither , and their continual trade and 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 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 quàm 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 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 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 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 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 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 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 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 that was prescribed them by their former Rulers : Nor is the danger of their revolting quite over , till they have quite forgotten their first condition , and till a total change is made of Laws , Customes , Habit , and Language . And who knows not , that it is in the power of the Sword , being well fortified , to impose what Laws and Rules it self will upon a people , who after a tedious and a destructive war will rather embrace an ill conditioned peace , then run the hazard of a new war , where they are sure to be swallowed up in spoil and rapine ?

In this declining therefore of the Roman Empire , many Provinces thereof being possessed by several invaders , it is certain that the conquering people gave their own Laws to the conquered , but ruled most a a Iuxta illud Silii ; Vis colitur , jurisque locum sibi vendicat . ensis . by power and arbitrary will . In iis seculis , sayes Dr Duck , b b Lib. 1. de Author . ju . civ . ca. 7. speaking of the declension of the Roman greatness , non erat aliud parendi dominandive jus quàm armorum potentia , crassa literarum omnium ignorantia , leges omnes barbaricae , Gothicae , Francicae , Lombardicaeve , sepultis jam legibus Romanis , rerum omnium morumque confusio : In those times there was no other rule , but what the sword did give , a gross ignorance of all literature , the Laws all barbarous , had from the Gothes , Francks , Lombards , the Roman Laws lying now in the grave , and indeed a plain confusion of civility , and all things whatsoever . Ludovicus Vives c c Lib. 1. de caus . corrupt . Art . mentioning the utter downfall that was of all learning at that time , tells us also the politick reason that animated that savage people to deal so tragically with it : Irrisae sunt ab eis linguae ac studia omnia , saith he ; Nec solùm eis detractum est pretium , sed contumelia addita ; seu quòd nollent quenque in victis plus sapere quàm victorem , & ut quisque esset doctissimus , ita crassis illis hominibus inprimis erat suspectus , tanquam vafer & ad fraudes ac dolos maximè appositus ; sen quòd emolliri per haec veram virtutem opinarentur , ac minus bello idoneos reddi , cui omnia illi tum tribuebant , laudem , gloriam , decus ; ex bello uno verum germanumque , etiam sempiternum oriri rati : They laugh'd at the variety of tongues , and at all literature ; Neither did they onely distesteem them , but they cast reproches upon them also ; either because they were not willing , that any that they had now brought under subjection should be wiser then themselves , who being blockish , did cast a jealous eye upon those that were most knowing men as they that were subtil , and fitted for all politick and wily practises : or because they had a conceit , that learning did too much soften and enervate valour , and render men unfit for war , in the which they thought all praise , glory , and renown did lie ; and that no where true and immortal honour was to be won , but in war onely .

Which torrent of ruine then happening , was the more unfortunate and fatal , in regard through Italy and the Europaean Nations being thus infested , that which is the Roman Civil Law now , and was collected and put together by Justinian himself , and doth bear his name ( though selected out of a great confused mass , consisting of near two thousand Volumes , that had been 1400 years a laying together by several Lawyers ) could not have any place then in Italy , nor could ever get entrance into those parts for 500 years together after the death of Justinian : Because this body of the Law that is now extant , was compiled and put together at Constantinople , after the Roman Emperours had removed themselves thither , and kept out of Italy and the Western part of the Empire for all that time that those Barbarians were possessed of the same .

Howbeit it is no less certain , that the ancient Civil Law that was in being long before Justinians time , and that very frame and model thereof which was drawn together and raised out of those ancient foundations by Justinian himself , was the sovereign and ruling Law at Constantinople and all over the East , where the Roman Empire then was , and was translated into the Greek tongue for the use of the people , and there continued flourishing at that time when the West would not admit it . So that it is to be noted , that when it was driven or kept out , it was by a barbarous people that followed all with fire and sword ; and that it did not suffer alone , but all civility and learning was banish'd with it too : and that it was never so extirpated from off the earth , but it had a being and continuance somewhere .

And yet there was a part of Italie also , namely the Exarchate of Ravenna , consisting of ten Cities with the territories belonging to them , which the barbarous people could not subdue , nor make them change their governours , government , or Lawes ; who being still ruled by the Viceroys and Lieutenants of the Constantinopolitan Emperours , were totally governed by the Roman Lawes also as they were before . And after the collection of Lawes made by Iustinian was perfected and published , and was now to be the onely Law for the whole Empire , it was sent to and embraced by the Exarchate of Ravenna , and there practised , though no where else throughout Italie for 500 yeares together .

Notwithstanding , it cannot be truly affirmed neither , that even those parts of Italie which the Romans had quite lost , and were made subject to this barbarous people , were totally guided by another Law , and had none of the Roman Law to guide them .

For , although the Gothes ruled much by Lawes of their own prescribing , yet Cassiodore writes , that in the time of Theodorick , and some of his successours , the Roman Law that had been in use there before , was also used still , though but in a way of Subserviency to their own .

And Ataulphus fully purposing Romana omnia adeo in Gothicum nomen moresque mutare , ut Romanum planè obliteraretur , so to change all that was Roman into the way and fashion of the Gothick Nation , that nothing that was Roman should remain any longer ; Mr. Selden out of Orosius d d Lib. 7. ca. 43. sayes , upon better consideration had , he changed his resolution quite , and did by all meanes strive , ut Romanae restitutionis autor haberetur , postquam esse non poterat immutator , to be the chiefe setter up of the Roman policie , which he saw he should not be able to throw down .

For the time therefore that the Gothes and Lombards were possessed of Italie , the Code of Theodosius , and some things taken out of the Gregorian and Hermogenian Codes , and Gajus his Institutions , Vlpians fragments , and the Notes and sentences of Paulus , all parts of the Civill Law , and antienter then that body of Lawes whereof Justinian was the compiler , were taken in and admitted into use together with their own Laws . Those Provinces of France that are nearest unto Italy , when the Gothes came to invade them , were also permitted to enjoy the Roman Laws upon the same termes ; and especially when Honorius and Arcadius surrendred Aquitaine , one of the conditions was , ut lex testamentorum iis salva esset , that their Laws for ordaining or expounding their last wills should not be infringed .

And Alarick the second , one of the Gothish Kings , was so affected towards the Roman Laws , that in the year 506 , he employed his own Chancellour Anianus to make a Collection out of the several parts of the Roman Laws , whereof the Theodosian Code was the chief , and to write Notes and Expositions upon it ; which after he had done , it was published and set forth to be observed as Law in France . And Mr Selden writeth , e e Dissert. ad Flet. ca. 5. parag. 4. that the same King did the like in Spain too as well as in France .

So that albeit ruine , devastation , and violence had buried all that was Roman besides ; and for the better and more sure keeping of what was gotten , clean another government and another Law was also setled ; yet the Roman Law , either out of necessity , because they saw the hearts of that people so set upon that Law , that they would never have remained quiet or peaceable without it , or out of some good esteeme that such a wilde and barbarous people bore to it themselves , finding it to be so wise , solid , and rational , was still retained in some use in Italy , France , Spain , and in Germany too , as the same Mr Selden affirmeth , amidst its very enemies ; though much diminished , corrected , and controuled by their own supereminent and over-ruling Law . So good a piece of policy , and such a special mark of wisdome was it then accounted , to have two Laws in the same Territory ; the one of the Romans for private matters between man and man , for which it was so sufficient , full , and equal ; the other of their own , to direct and steer the publick upon all accidents , which they meant should superintend and reign in chief over and above the other .

But further , not onely the use , practise , and observation of the Roman Law has been in danger to be quite lost and wholly set aside , but the very books and writings of the Law have run very hard fates also ; ut mirum sit vel has qualescunque juris Romani reliquias superesse , sayes Baldwine in his Prolegomena ; that it may be admired we have such parcels thereof extant at this day . It was a most unhappy fate , and very worthily lamented by all learned men , that after Justinians composition of the Law was perfected and set forth , with a command , that that onely should be the Law of the Empire , omnibusque antiquioribus quieseentibus , nemoque audeat vel comparare eas prioribus , as Justinians own words are ; f f L. 2. God . De Veter . jur . cuuclcand . all the old Laws being quite put to silence , nor that any should dare to make comparisons between them ; the very Law-books themselves being 2000 Volumes , as we said before ( whereof Justinians new work was but a choice Collection , raised out of a confused and an indigested heap , and thence put into order ) did thereby lie neglected so long , that in process of time , they perished quite , and were never seen more .

Questionless had they been preserved , and transmitted unto posterity entire , they would have acquainted us with much more of the Roman Antiquities then we now know ; the Civil Law that we have , would have been much better understood , when we might have gone to the Original from whence it came ; and the contradictions now contended about so much , would have been easily reconciled .

The sense of this loss did cast Sabinus Floridus , who charges it upon Justinian , into such an extasie of indignation , that he sayes , Justinian died mad with the consciousness and horrour of suppressing these books , and judges him not worthy ever to have been born . But Franciscus Philelphus goes a strain higher , plainly imprecating in this manner : O ntiuam superi , si quid mortalibus usquam Justitiae reliquum , te , Justiniane , sub imis Manibus ardenti plectant Phlegetonte jacentem ; Post quàm tanta Italis millena volumina legum Principe te clades , te principe pestis ademit . Now though I fee not any ground to justifie so much bitterness , nor indeed deservedly to make that renowned Emperour authour of such a crime , being especially thought by the most not guilty ; yet since those books of Law that are left us , which are but an extract from the other , are of such high price and value , surely when the other perished , there was lost a very great treasure .

Again , as there were three Cities famous above all others , for the nourishing and maintaining of the study and learning of the Civil Law , to wit , Rome , Berytus , and Constantinople ; In which three Cities onely by an express constitution of Justinian , g g Digest . Proaem . parag. 7. it was to be read and taught to others , and no where else throughout the Roman Empire ; so it was not possible but the books and writings thereof must be lost and destroyed , as indeed they were , in the direful events of those Cities : For Rome was often spoiled , sack'd , and laid waste , by rude and savage people , who would not spare books or learning , that they knew would detest , condemn , and censure them , and their barbarous actions . Berytus was so utterly swallowed up in an Earthquake , that nothing of the whole City was left above ground . Constantinople in Zeno the Emperours time , in the year 478 was almost wholly destroyed by fire ; in which perished , amongst othings , an hundred and twenty thousand books ; and is since fallen into the power and hands of the Turks , professed enemies to civility and learning , the same being taken by Mahomet the Great , in the time of Constantine Palaeogolus the last of the Graecian Emperours , in the year 1452.

Thus has it fared with the very books and writings of the Civil Law ; but such has been the providence of the Almighty in preserving this necessary piece of learning , that neither any nor all of these disasters have been powerful enough to extinguish it . For although it seemed sometimes to be buried , and no where visible , yet at last by one means or other it was restored and brought to light .

But to none more is the honour of this restitution given , then to the Emperour Lotharius the second , who undertaking a war against Roger King of Sicily and Naples , after he had taken by storm the City of Amalphis in Apulia , he there found the chiefest and most authentick part of the Civil Law , the Digests ; which was from thence conveyed to Pisa , and afterwards to Florence , where they have been kept with the greatest care , and had in much veneration and esteem ; h h Mr Selden sayes it is there kept in the Dukes Palace , and is never brought forth but with Torch-light and other reverence . Notes upon Fortescue ad cap. 17. in tin . and this was in or about the year , 1137. The other parts of Justinians , frame and Collection were found at Ravenna about the same time .

These books were no sooner pull'd as it were out of the dust , but by the same Emperours command , they were every where divulged , taught in Schools and Universities up and down the Empire , the barbarous Laws as it were silenced , and these in practise made the rule for all Tribunals .

And indeed the fame and reputation of them so spread , all kind of learning reviving with it at the same time , that in a little space of time it got footing also with the other sciences in France , Spain , and Italy , and in all the Western part of Europe , where it has been in greatest use and highest account , as well in studies as in Judicatories , ever since to this very age of ours . Nay , the Civil Law after it was once restored and taken notice of , having long lain hid and concealed , drew the hearts and studies of men after it in such wonderful manner , and grew to that mighty eminence and power , that the most were intent upon the study of it , and but few in comparison lookt after any other learning .

Giraldus of Oxford charges it as a fault upon the students of his time , and tells that one Martin a Clergy-man , did sharply reprove the University of Oxford at a publick congregation , for devoting themselves wholly to that study , neglecting all other learning ; saying , quòd leges Imperiales reliqua scientias omnes suffecaverant , the Imperiall Laws had swallowed up all the other Sciences .

Also Daniel Morlaes in the same Century , being in Henry the seconds time , writes , that the Law was so much studied in Oxford , quòd pro Titio & Seio Aristoteles & Plato penitus oblivioni traderentur ; that Titius and Seius were minded altogether , and Aristotle and Plato were quite forgotten . And Roger Bacon , that had made himself eminent in all the sciences , did upbraid the Bishops of the same age , for minding Divinity so little ; adding , quòd cavillationes juris defaedarent Philophiam , the sophistry of the Law would corrupt the true Philosophy .

Stephen Langton Arch-Bishop of Canterbury took up the same complaint in Henry the thirds time , against the Monks of his time , qui relicto agro veri Booz , nempe sacra Scriptura , ad alium agrum , id est , scientiam secularem , pro cupiditate terrena transirent ; who through greediness of filthy lucre , which was then to be gotten chiefest from the Law , did forsake the knowledge of the Scriptures , and hunt after secular knowledge .

The like lamentation was made by Robert Holcot of the order of the Praedicants in Northampton-shire , in Edward the thirds time ; leges & canones , saith he , istis temporibus innumerabiliter sunt foecundae ; concipiunt divitias & pariunt dignitates ; ad illas confluunt quasi tota multitudo scholarum his diebus : The Laws and Canons are immeasurably profitable in these times ; riches and honours spring from thence ; almost the whole number of Scholars resort thither ; for indeed the greatest professours in Theologie , that were , did so little content themselves with that one way of advancement , that they did frequently assume degrees in Law , to fit and qualifie them for other preferments also .

But sure it is , these complaints and objurgations of private men could so little keep this luxuriant growth of the Law from spreading , that the very Edicts and Decrees of Princes could not bring it down .

Matthew Paris in his History upon the year 1254 , and in the Additions , pag. 883. Edit. Noviss . makes mention of a constitution made and published by Pope Innocent the fourth , by which it was ordained , that no professour of the Laws should be promoted to any Ecclesiastical dignity in France , England , Scotland , Spain , and Hungarie ; and that from thenceforward the Imperial Laws should not be read in those dominions , if the Kings and Princes so thought fit . Pope Honorius the third forbad the reading or teaching of the Civil Law in Paris , in the year 1220. i i Ca super specuta . ext. de privileg .

Those Popes thought that the restraint of the Imperial Law , would be a ready means to bring into request the Canon Law , which was as it were but new set up . Upon design therefore to bring into credit their own Ecclesiastical Law , rather then out of any dislike of the Civil , were those prohibitorie Decrees made ; however they very much failed of that effect that was intended them : for we may have observed to this very time , that all those Christian States that do acknowledge the Popes authority and power , have so equally divided their respect between both those Laws , that they have appointed to each their proper function ; designing the one to be serviceable to Civil matters , the other to Ecclesiastical ; and so by such moderation have done very equal right to both . At the same time that the Civil Law was publickly read at Bononia by the means of Lotharius the second , it was brought into England by Theobald the Arch-Bishop of Canterbury , and being publickly read in Oxford by Vacarius , it grew so general a study , and other learning was so much neglected upon it , that King Stephen incensed thereat , sent forth a peremptory command , that it should be read in England no more , that Vacarius should forbear to teach it any further , nor that it should be lawful for any to keep any books of the Roman Laws by them : Sed parùm valuit Stephani prohibitio ; nam eò magis invaluit virtus legis , Deo favente , quò cam amplius nitebatur impietas subvertere , sayes Mr Selden ; k k Dissertat . ad Flet. cap. 7. parag. 6. But King Stephens prohibition did prevaile but little ; for the power of the Law , God prospering the same , waxed the more vigorous , when malice did most strive to destroy it .

Charles the ninth , and Henry the third of France , did also by sending forth their Edicts forbid the Civil Law to be taught in Paris , or that any Degrees should be taken in that faculty . Philip the fair , and the Parliament of Paris anciently , did straitly charge , that no man should dare in any pleading to urge or cite the Roman Law against a special Law of the Nation . In Spaine it has been made no less then a capital crime , to offer or alledge the Roman Law , as compulsive or binding .

And surely it is a high indignity to any Prince , to have any sorreigne Law set up against , and to beat down his own . And therefore in the erection of Universities in France , the Kings have alwayes declared , that their purpose was to have the Civil and Canon Laws in them publickly professed and taught , to make use thereof at their discretion , but not that the subjects should be any way bound thereunto , lest they should seem to derogate from the Laws of their own countrey , by advancing the Laws of strangers . l l Bodin . de rep. lib. 1. ca. 8.

These and such like edicts & declarations of Princes , have been alwayes of full force and power , as most justly they ought to be , to limit the vast and universal power of the Civil 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 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 n De caus . corrupt . art. lib. 7. The Laws that were proper for the Romans , suit not so well with others ; the manner of living is not now as it then was , the state of affairs is clean changed , climates differ , and the tempers of people differ too ; new and strange accidents do frequently arise , which will require new constitutions to settle them ; the form of governing is divers in several times & places , the Laws therfore cannot possibly be the same ; Monarchical Laws are of no use to a Popular government ; and Popular Laws do not fit a Monarchical State : Severe edicts will not suit with a milde and gentle people ; and contrariwise , barbarous or untractable natures must not be dealt withall by gentleness or clemency . It may therefore be questioned , how the Civil Law that was made so many hundred years ago , and for one single Nation , can be accomodated to other Nations , coming in so long a tract of time after them , and differing from them in habit , language , situation , manners , and form of govermnent .

Besides , to hear of the general use of the Civil Law in forreign parts , is so odious and offensive a thing to some humorous Anticivilians , that although they be so learned , that they must needs know it to be true , and having travailed abroad must needs have seen it ; yet to take away all belief thereof from the people of this Nation , lest they should look too favourably upon it , they do too frequently suggest in their writings , That in France it has been forbidden under a penalty to read the Civil Law to any publick audience , and those that should hear the same read , were also to undergo the same punishment ; And that in Spain to cite the authority of the Civil Law in Court , has been made an offence no less then capital . But they do not add withall ( which they know they may as truly ) that these sharp edicts lasted not long , but grew out of use very long ago ; and that the Civil Law does flourish no where so much as in those two great Monarchies , and so has done for a long time together ; and have both sent forth men as famous and renowned in that profession as in any other ; of whom mention shall be made hereafter . For both the study and practice of the Civil Law has been found of such absolute use and necessity , that those States that have been brought upon some pretence of convenience to suppress it , have been glad after some little want thereof to reestablish it and set it up again .

Baldwine in his Prolegomena takes in all Christendome in this particular ; Religio Christiana , saith he , probavit retinuitque politicas Romanorum leges , quas aequitate summa subnixas & naturalium notionum honestati proximas esse videbat ; easque reverita est tanquam Dei dona & beneficia : Christian Religion hath allowed of and kept the Roman Laws , which it saw were grounded upon pure equity , and came nearest to natural integrity it self , and hath ever since reverenced them as the gifts of God and blessings bestow'd on Man . Jus Civile Romanorum , sayes Wesenbeck , o o Parat . Dig. De legib. nu. 9. propter summam aequitatem & prudentiam , jus quasi gentium , & omnium populorum bene institutorum commune est : The Civil Law of the Romans , for its special equity and wisdome , is come to be as it were the Law of Nations and of all well ordered people . Jus Romanum tam aequum est & rationi consentaneum , sayes Molinaeus , p p Ad consuetud . Paris . Tit. Des fiefs . nu. 110. ut omnium fere Christianarum gentium usu & approbatione commune sit effectum : The Roman Law is so equal and so coming up to reason it self , that by the usage and acceptation of almost all Christian Nations , it is turn'd into a generall and common Law . Hoc jus commune , saith Peckius , q q Ca. 28. De Reg. jur. in 6. in princip. quod tantis vigiliis excogitatum & inventum est , adeo bonum & aequum semper visum fuit omnibus , ut hi quos Romani imperii leges non tenent , hoc ipsum jus tanquam aequitati naturali maximè consentaneum , libenter sequantur & ubique probent , suasque leges per hoc interpretentur ; This common Law , meaning the Roman , invented and wrought out by so hard and so long labour , has alwayes seemed unto all States so good and conscionable , as even those Nations whom the Law of the Roman Empire does not oblige at all , do notwithstanding freely follow and approve thereof , as most agreeable to natural equity , and do interpret their own peculiar Laws by them . Particularly for France , Equinarius Baro r r Inst. De ju . nat. gent. & Civil . sayes , that , si more statutore regionis aut lege Regia controversiae dirimi non possint , ad jus Caesareum velut ad 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 Judices regii caeterique laici confugiunt ; If there be no custome or constitution to determine the controversie , both Judges and people go to the imperiall Law as the best that ever was . And a little after , Jus Romanum , saith he , commune jus Franci appellant , & interdum absolutè jus , vel jus civile , quòd eo jure communiter omnes regiones utantur , ubi pactum , mos , lex regia desideratur ; We Frenchmen call the Roman Law the common Law , and sometimes simply the Law , or the Civil Law , because that Law all Nations do commonly use , where agreement , custome , and particular Law is wanting . Annaeus Robertus , s s Rer. Judic . lib. 2. ca. 1. another French Lawyer sayes , that some Provinces in France , either by special priviledge , or by grant from their Kings heretofore made do use the Roman Laws ; as the Territory of Tholose , and that of Daulphine , and some others , and these are call'd Provinciae juris scripti , the provinces of the written Law : some others , saith he , and indeed the most and best Provinces are governed by unwritten customes ; but in the end he adds for the whole Kingdome thus , Civile Romanorum jus in senatu & tribunalibus Franciae citare licet , non quòd Romanis legibus parere necesse habeamus , sed ut aequitatis ratio ex tot clarissimorum & prudentissimorum Jurisconsultorum responsis attendi & inspici queat ; The Civil Law of the Romans is alledged in the judicatories of France , not that we think our selves bound to them , but that out of the resolutions of so many most famous and most prudent Lawyers , the rule of equity might be extracted . For Spain , Fernandus Vasquius , t t De succes . creat . lib. 3. parag. 26. limitat . 31. nu. 71. one of their own Lawyers , shall give testimony , how the Imperial Law and the Law of their own Nation goes hand in hand conjoyned and link'd together : Jus Civile Hispanorum , saith he , hospitio voluntari recepit jus civile Romanorum : jamque nostrum jus civile Hispanicum & jus civile Romanorum simul pariterque coeunt , licet ex vi jurisdictionis illud recipere nos Hispani non teneremur : The Law of Spain hath given a free admittance to the Roman Law , and now they are as it were united together , albeit there lies no tie of command upon us in Spain to enforce a submission to it .

CHAP. V.

The general admittance and use of the Civil Law in forreign parts , is acknowledg'd by our selves here in England .

I Shall not travail any further to cite any more forreign testimony , to prove that this Law is generally received and practised by other Nations ; and the rather , because Dr Duck in his book , has by variety of proof so sufficiently made it good already . But yet it is worth the setting down , what some of our own Countrey-men have in their writings acknowledg'd to the very same purpose ; and those especially amongst the rest , whose interest and high valuation which they pass upon the Laws of their own Countrey , will not permit them to ascribe more to the Civil Law , then the just truth will bear .

And it is most observable , what King James himself , the learnedest of all modern Princes , said here in a Speech made to no less solemn assembly , then his Lords and Commons of Parliament , u 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 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 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 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 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 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 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 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 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 not opposite at all to the special Law of the place , but seem to agree with the Law of Nations or common reason . And he grants moreover , that ever since Frederick Barbarossa's time ( which is near 500 years ago ) the Civil Law has grown into a common profession in this Westerne World .

CHAP. VI.

The Civilians themselves do not enlarge the use and practise of the Civil Law in forreign parts , further then Mr Selden himself in his writings grants it to extend .

FRom what has been cited out of Mr Selden , it does appear , that there is as much granted by Mr Selden to the Civil Law , as ever was challenged by any Civilian , or ever ascribed to it by any , or that any can wish to be granted to that profession in any Nation .

He in effect acknowledgeth , that when the use thereof came to be renewed in Europe with other learning , it was found to be so rich a Treasury of reason , judgment , and true natural equity ; and so useful for all matters that respected Civil society and government , that by the knowledge and direction of the Civil Law , and the rules and principles thereof they knew how to supply with resolution such cases , as their National Laws had not made any provision at all in ; or if they had , but were dark or intricate , this would help to explain and illustrate them ; which neither common reason nor any other humane learning would enable them to do . The Universities have therefore since made it their common study , and commonly given degrees in it , and have sent forth the professours thereof into all Tribunals to be the minsters of right and justice there , till now at last it is grown to be a common profession throughout Europe . And though the original authority which it had in the Roman State , is quite worn out , no State being now subject to the Roman Sovereignty ; yet Mr Selden does admit it to be entertained for a binding Law by ordinance in some places , that stamp that authority upon it which of it self it hath not ; in others usually observed as a Law by custome and practise ; but where it passes not for Law neither way , there the reason and wisdome thereof prevailes , and every man suffers himself to be convinced thereby , non vi necessitatis sed vi rationis , not forcing the will , as a Law does , but as by reason powerfully working upon , and at last controuling the understanding .

Thus far goes Mr Selden himself ; and by no Civilian has a greater latitude then this been ever given to the Civil Law . For what King James spake to his Parliament in the year 1609 , touching this matter ; That there was no Kingdome in the World , not onely Scotland , but not France , nor Spain , nor any other Kingdome governed meerly by the Civil Law , but every one of them hath their own Municipal Laws agreeable to their customes , as this Kingdome hath the Common-Law ; we all unanimously own to be true .

And what he told them of Scotland in particular , in the year 1607. may be as well and as truly spoken of all the States in Europe . If a man , saith he , plead there , that the Law of the Nation is otherwise , it is a bar to the Civil ; and a good Chancellour or President will oftentimes repel and put to silence an argument that the Lawyers bring out of the Civil Law , where they have a clear solution in their own Law . So as , saith he , the Civil Law in Scotland is admitted in no other cases , but to supply such cases , wherein the Municipal Law is defective . This is generally reported by others , never questioned by our selves : For we are of opinion , there is no people in the World governed singly by any one kind of Law whatsoever , nor indeed can be ; much less can any State be totally governed by the Roman Law , but that there must needs be a superadded and a peculiar Law , especially as to government , suiting with the climate it self , the nature and manners of the people , the fashion and form of publick actions , divers accidents of the time , and sundry other occurrences . Nay , we often see it fall out , that some certain Laws that are specially made for a people , and at their first ordaining are found to be most excellent and very wholesome Laws ; yet in process of time through alteration of things , and the very persons themselves for which they were originally made , it is as great wisdome and as necessary to change them and quite take them away , as it was at first to devise them . It is no wonder therefore , that divers parts of the Civil Law , that were accommodated to the nature of the Roman people onely , and the usages then in being , should prove incongruous to the men and to the affaires of this present world , which is of a clean different face and nature . For instance :

A Roman subject was not such a supreme moderator amongst his Children , nor such a free disposer of his own estate , as that he could make his Will thereof , as he pleased , preferring one childe , and excluding another , or parting it too unequally amongst them , or gratifying some stranger without remembring any of them .

If therefore a childe were quite left out of his fathers Will , or were especially disinherited , but without any cause mentioned , or upon such a cause as the Law did not allow of , or if upon a legal cause , yet not such as was true in fact , the Will was void and null . e e Wesemb . parat . Dig. De liber . & posthum . The just portion or share that every child might expect from his father , if he made a Will , and which he could not give from him without lawful cause , was , if there were but four children in all , or under , an equal share in the third part of his whole substance both Land and goods ; ( for at Civil Law they both came under one reckoning , and went one and the same way without any difference ) but if there were more then four children , then a full half of the whole estate was equally shared amongst them all . f f Novell . De trient . & semiss parag . haec nos .

If less was given to any child then this just proportion , or if it were clogg'd with any condition , or time of payment , whereby it could not come presently and freely to him , the Will was not absolutely void , g g L. omni modo . Co. de inoffic . testam . but a complaint might be brought to restore him to his just and equal share , and to have it presently and absolutely without condition , incumbrance , or day for payment given . h h L. Quoniam in prioribus . Co. De inoffic . testam .

But in those Nations and Countreys where the subjects are such free and absolute propietaries of all the estate they have , that they can dispose of the same how they will , even from their own children , and to them in what inequality they will , these tender and indulgent dictates of the Civil Law are useless and unsuitable . Those Titles then and constitutions of the Civil Law , that treat on that subject , Dig. & Co. De 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 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 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 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 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 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 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 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 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 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 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 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 u Ibidem . Non magis legibus singula contineri possunt , quàm 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 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 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 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 z L. 12. Co. De Cobortat . 1. vi●● . Co. Negeciat . ne Militent . Paulus a 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 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 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 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 e L● 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 f L. 9. Dig. De just. & jur. and Justinian : g 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 but themselves , such a Nation must make much of themselves , and be contented to subsist of what they have of their own ; for no other Prince or people will adventure to deal or correspond with them .

Eighthly , those that are the composers of this Law , in the ordaining thereof had not , as is usuall in the making of other Laws , the advantages of State in their eye , nor the honour and greatness of those that had the government , nor any meerly politick considerations whatsoever ; much lesse did they look at the particular benefit of any private men . But as in publick matters salus populi was suprema lex , so in private , quod aequum bonumque fuit , was that which made up the Law with them ; the dispensation of true right and pure equity was thought the most effectuall means to preserve the whole . And hence it is , that the sincere equity of the Roman Civil Law has been owned , and the wisdome of it greatly admired by those , to whom the exigencies of the Roman State , and the interest of the Rulers of it could not be known .

Ninthly , this Law is so well tempered , and so indifferently composed , that it may be accommodated to any kind or form of government ; so that be the Supreme power in one , or be it in few , or be it in the whole people , it is equally useful for them all : for Rome came under all these severall formes of government , and some part of the Civil Law was made under each of them .

Lastly , Triall , that is the true Touchstone of Laws as of all things else whatsoever , has exalted it above all other Laws of Man . First , in the general use of it every where about the World . Secondly , in the continuance of it to this present time , after the State and Government of Rome has long ago ceased to be , and against all stormes and tempests that have come . Thirdly , in that all States and Common-wealths have exceedingly flourished , that have made use thereof .

And yet we are not such vain exalters of our own profession , as to think , or boast , that the Civil Law has the force or property of a Law within it , so as to prescribe to or bind forreign Nations . h h Leges non allegantur in curi●s Principum aut regum pro authoritate , sed proration● sui . Jas . in l. 19. co. de Collat. nu. 10. Non quia sunt leges Imperatorum ; sed quia sum natu●●les & bonae ; non quia lex h●● dicat , sed quia Retio sic vult . Ba●d . in l. 13. co. Desent . & interloc . on●● judic . But we rather say , by any authority of its own , it commands and necessitates no where , and yet ( as reason must alwayes prevaile with men that are rational ) it informes , illuminates , and perswades every where . We say this further , that though in matters of publick government the Municipal Law bears sway , and is practised altogether in every Nation : for those must be managed by such prudent wayes and means , as the supreme Governours from time to time shall think most necessary ; without being tied up to any certain rules even of their own , much less to any of the Roman Empire : yet in private controversial things , arising between man and man , some special matters of more publick and general concernment excepted , the Civil Law is much more practised and more frequently used , then the Municipal . Because in respect of the great variety and multitude of such cases , the Municipal Law can declare but little that is certain in them : So that though we cannot say , that forreign States are governed by the Civil Law , yet the suits and differences their subjects have one with another , are for the most part judg'd and ended by it . But the admittance of the Civil Law in these cases , how general soever they be , is voluntary and free , without either necessity or constraint .

And we do so little think , that the want of a compulsive and binding power does in any part obscure the lustre of it , as in our judgments that very consideration does commend it much more , and makes the merit of it much more conspicuous and splendid ; for to be awed by an imposed Law , argues the superiority of the power that imposes it , and the servility and subjection of the people that are under it , but no worth and excellency in the Law it selfe : for peradventure if they were left to their full freedome , they would chuse to live under some more natural and more reasonable Law . But when a Prince and people shall of their own accord without direction or command from any other , freely embrace a Law , and desire to be tried and judg'd thereby ( as forreign States do by the Civil Law ) it is an evident token , that this free assuming of such a Law , proceeds from some known singular vertue and rare goodness that is in it ; for else they would not , being at liberty , be so unanimously guided and directed by the same .

CHAP. IX .

The admittance and sway of the Civil Law in forreign parts , is yet further verified by the testimonies of Sir 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 .

I Have before told you , what a great and renowned King of this Nation , and five great Sages of the National Law have said concerning the fame and practise of the Civil Law in forreign Nations . I connot pass by what Sir Tho. Smith , a most famous Scholar and States-man of this Nation , and one who in Queen Elizabeths time went Embassadour to the King of France , and so had the opportunity to know more of this matter then those that sit at home , has written obiter to the very same purpose , in his book De Republica Anglorum . Wherein after he has delineated and set forth the true state of the policy and forme of government within this Common-wealth , and wherein the Laws thereof do greatly differ from that , which other States do observe and follow , in his third book , ca. 11. he closes in this manner . Administrationis & Politiae Anglicanae formam quasi in tabula breviter vobis ad intuendum proposui ; Quid suum habeat , quidque ab aliis rebuspublicis , Gallorum , Italorum , Hispanorum , Germanorum , diversum , quae civilibus legibus Romanorum in Pandectas & Codicem à Justiniano redactis reguntur , enarravi . The form of Policy and government of England , saith he , I have as it were in a Map briefly set down before you to be seen , what it has proper to it self , and what differing from other Common-wealths , to wit , of France , Italy , Spain , Germany , which , saith he , are swayed by those Civil Laws of the Romans , that Justinian did put into the Digests and the Code , I have likewise shewed you .

The testimony also of Dr Hakewill , a great Divine of this Countrey also , is as full to the same matter ; for in his learnned Apologie of the power and providence of God , i i Lib. 3. ca. 7. sect. 3. he does not onely rank the Civil Law next to the Law of God , but also avows the professours thereof in some forreign parts to be generally better scholars then their Divines ; and the Lawyers of this last age to be much more able in their learning and skill , then the Lawyers of former ages have been . Of the which he will have the reason to be , the great sway , interest and employment , which they have had in the Judicial Courts of Christendome , that has given them such encouragement . Next Gods Laws , saith he , those of the Empire seem to challenge their place ; howbeit with us , having neither that reward nor employment as they deserve , they have lost both their rank and dignity : but in forreign parts , where they are cherished and honoured , they marvellously flourish ; insomuch as in some transmarine Kingdomes their Lawyers are held , and for the most part are undoubtedly more sufficient Scholars then their Divines ; and within this last Centenary , much more sufficient then the writers and professours of the same faculty in many precedent ages , as well in that part which is professed in Schools , as the practick expressed in judgments and pleadings . Now for the latter part , which is the practick , saith he , it may easily be evidenced to any who will be pleased to look into it , that by the observations , experience , paines , and learning of the Lawyers of those latter ages , it is grown to much more exactness and perfection then former ages had . Which appears by the judgments , decisions , arrests , and pleadings of the highest Courts of the greatest part of the Christian Nations , which are extant in great numbers ; as the Decisions of the several Rotes of Italy , at Rome , at Naples , at Florence , at Genoa , at Bononia , at Mantua , and Perusium , and the rest : the judgments of the Imperial Chamber at Spire , which is the last resort of the German Nation ; and the arrests of the several Courts of Parliament in France , as Paris , Aiz , Burdeaux , Grenoble , and the rest . To which may be added the pleadings of Monsieur Servine , the French Kings Advocate , and others of that nature , which are all published and extant , partly in Latin , and partly in their own Languages , with that variety and learning , as much exceeds the former ages .

But to pass from what is observed by our own Countrey-men in this particular , is not there an ancient institution of England , that does clearly demonstrate the same thing ? for if we were not sure that the Civil Law did pass for currant , and were generally embraced in forreign parts , why should we alwayes to this very day observe to try and decide all differences , that arise between our own Countrey-men and Strangers either upon or beyond the Sea , in the Court of Admiralty ; where the proceedings are onely after the forme of the Civil Law ? And were it not to please forreigners in the Law they like and allow of , we might when we had them here , strictly hold them to our own Laws . But since we must trade and traffick with them , it were no indifferency to call them from the trial of that Law which they in some part know , and is the Law of their Countrey , as themselves make it , to the trial of a Law which they know in no part , and is meer forreign unto them .

Likewise , if the Treaties that we have had with forreign Princes were surveyed , it would be found , that they run in the language , and are transacted by the skill and knowledge of the same Law . It is evident therefore , that it is used and accepted of every where upon and beyond the seas ; since that where we deal with strangers most , and have most variance with them , there it is most used even amongst our selves :

And to the same ground and reason does Mr Selden in his discourse upon Fleta k k Ca. 8. parag . ● . impute it , that the practise of the Civil Law has been continued alwayes in the Marshals Court here in England , where divers causes might arise , that might concern strangers ; as also in the Judiciall Courts in both Universities , where strangers for study sake do frequently come to settle : though for my part I cannot think , that the Universities use it for any other reason , then for the pure natural equity and sound reason that is in it above all the Laws in the World besides ; nor for any other end , then that young men trained up and made expert in that profession , when they come abroad , might be more ready in all matters of negotiation and commerce , that the Prince or State should in their dealing with forreign Nations have occasion to use them in , when ever they were call'd to any such imployment ; to which the Laws of this Land serve nothing at all .

It is needless in so clear a matter to offer any further proof to convince our Countrey-men , that all their neighbours beyond the Seas ( that are nevertheless wise , rich , and potent ) do suffer themselves to be judg'd and directed by the Civil Law and the professours of it . I shall therefore as touching this particular add but two things , which in my judgment are very well worth the observation .

The first is , that Justinians Code ( which is a collection of the Emperours Laws onely , from the dayes of Adrian unto the age of Justinian himself ) is in use even amongst the Turkes . l l Stephan . Pro●●m . in Novel . ●u , 64. In order to which it was , as Mr Selden saith in his discourse upon Fleta ; m m Ca. 5 parag. 5. that Mahomet the second , but the first Emperour of the Turkes so called , when he had won Constantinople from the Christians , he commanded Maximus the Patriarch with other books to translate also into Arabick 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , that is , the Imperial Codes , which was done ; in futurum , ut videtur , Mahumedici imperii usum , sayes Mr Selden ; that is , to be useful for the Turkish Empire .

The second is , that even in the territory of the Church , where the patrimony and the jurisdiction of the Popes lieth , this Law has in some cases an interest of guidance in the Tribunals there too . And yet if the precious worth that is in it , did not captivate them , there are not forcible and weighty reasons wanting to make them abhor and decline the same : For ,

First , some of the Christian Roman Emperours , as Constantine , Theodosius , Martian , and Justinian , did ordaine divers Laws for the ordering of Church-matters and Church-men , which since the Popes look'd upon as an usurpation , and an incroachment upon their spiritual jurisdiction , Temporal Princes being the disposers of temporal things onely , as they suppose , and not to meddle with spiritual ; it might well beget in them an animosity and dislike against the Law it self .

Secondly , the Church has a large Law of their own , the Canon Law ; and so large , that it may be thought sufficient to set a rule to all that Churches affairs whatsoever , and need not borrow help from any other Law .

Thirdly , there has alwayes been as it were an emulous contention , which of these two Laws should be the most potent , and spread furthest in the Christian World .

Fourthly , the Popes in these latter ages have not stuck to make open protestation , that the Pontificial dignity was rather to give Laws to the Emperours , then receive any from them .

And are not these , if there were no other , grounds enough to make them tender how they admitted the Civil Law into their Territories ? yet such has been the power and sorce of that Law , that it has got footing even in that Spiritual Monarchy ; for where sin against God comes not to be restrained , or punished , nor the soul and conscience disciplined in order to its spiritual welfare ( which was the main end of ordaining the Canon Law ) but that the case is meerly temporal and worldly , and not decided by the Canon Law , there the Civil Law gives the rule even in the Popes dominions ; non vi sua , sayes Suarez , n n De legib. lib. 3. ca. 8. nu. 3. sed quia Pontifices ita voluerunt , not that it has any authoritative power there inherent in it self , but as the Popes have freely entertained the same . Nay , Maranta in his Speculum , o o Part. 3. nu. 76. adds further , and he cites Feline , a great Canonist for it ; That if the Canon Law has declared it self in the case , but is too strict and rigid , and the Civil Law be more fair and equitable , the Civil Law shall be rather followed in that case , even in the Churches territory , then the Canon Law it self .

And indeed setting aside some few special differences between the Civil Law and the Canon as to some particulars , the Canon Law is nothing else but the Civil Law applied to the use of the Church and Church matters . And such a conformity there is between them , that Rebuffus p p De Nominat . quaest. 5. nu. 14. sayes , the Canon Law is but Medulla legum & practica juris civilis ; the marrow and substance of the Civil Law , and the practical application of it to cases in fact arising . And Cuiacius plainly averreth , p p Ca. 15. De sent . & re judic . that the Canon Law fere omnia sumpsit ex jure Civili , & omnino quicquid praeclarum est in hoc jure , ex jure Civili est , nec hujus interpres idoneus quisquam , nisi sit juris Civilis peritissimus ; it is almost wholly taken out of the Civil , but undoubtedly whatsoever is excellent in it , it has borrowed from the Civil Law , neither can any one throughly understand the Canon Law , that is not first perfectly skill'd in the Civil .

This is not so truly averred of the Canon Law , but the same may be as justly affirmed of the particular Law of every Nation that is any thing famous either for Laws or Government . For undoubtedly , the best governed Nations have wrote their Laws by the copy of the Roman , and the Civil Law has been the Womb that has born and brought forth all of them ; neither can they judiciously clear the obscure meaning & doubtful sense of their own Laws , without they make use of the learning of the Civil Law , from whence they sprang originally , for a help to interpret them . And therefore which of them soever does cast out of their Territories the Civil Law , they do plainly put out the light of their own Laws , and do abandon and exile that Mother , of which their own Laws , for so much as is good in them , are but the off-spring ; since by the testimony of Claudian r r De leudib . Stilicon . lib. 3. Rome was , Armorum legumque parens , quae fundit in omnes Imperium , primique dedit cunabula Juris .

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 .

AMongst other notes and characters of Honour , that Nations have bestowed upon the Roman Law , this is not the least ; That it bears to this very day that name and style , which not only distinguishes it from the Laws of other Nations , but in a way of eminenty extols and sets it above them all : for although from that which every City , Countrey , or Nation does observe for their binding Law , is derived that particular appellation of the Civil Law of that particular place ; as the Municipal Law of England , France , or Spain , may be called The Civil Law of England , France , or Spain : yet he that is to mention the Municipal Law of any one Countrey or Nation , besides the Roman , if he would express it by the name of the Civil Law , he will not be understood , except he adds the proper name of that Countrey too , whereof he intends to speak .

But the common use of speaking still to this very day observed by the best and greatest Nations , is clean otherwise , as oft as mention is to be made of the Law of the Roman State ; for albeit you may call it , The Civil Law of the Romans , yet does it pass currently under the simple denomination of The Civil Law ; and you are intended to speak of that peculiar Law , though you do not subjoyn the proper name of that state or people . Justinian the Roman Emperour did first enact it as a Law and as a binding direction to the Roman people ; Quoties non addimus nomen , cujus sit civitatis , nostrum ju● significamus ; s s Parag. 〈◊〉 . Inst. De ju . nat. gent. & ●iv . As often as we say , The Civil Law , and do not add the name of any City to which it does belong , we mean our own Law . But now it is become the voluntary and free language of such people as are not subject to the Imperial Law .

And it is a sure token of a superlative excellency , when a general appellation that is common to all things of the same rank and quality , is specially and by common consent bestowed upon one peculiar thing of the same kind . What was the reason that Rome was call'd , The City , when there was such a multitude of Cities besides it , but because none came near it in power , greatness , riches , or magnificence ? Or that Aristotlé , when there were so many known Philosophers besides , should be signally named , The Philosopher , but because the rest knew not the true essence of things so well as he , nor had dived so deeply into the secrets of nature as he had done ? Or that Virgil should be styled the Poet amongst the Latines , and Homer amongst the Greeks , amidst so many other Poets contemporary with and a great many others since succeeding them , but because they two far exceeded them all ? Or that Solomon should be termed , The Wise man , and St Paul , The Apostle , when certainly wisdome was to be found in others , and in a great proportion too , as well as in Solomon ; and Saint Paul was but one of twelve Apostles ; but because the Wisdome of Solomon did surpass the wisdome of all men under the Sun , and Saint Paul was thought to be more inspired , and to have greater gifts and endowments given him , then other Apostles had ? In like manner and upon the same ground is it , that although every Nation that is brought under rule 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 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 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 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 to Justinians time had made to the questions that had been propounded to them , sometimes by Judges , and sometimes by private persons , as in contingency they fell ; and are ranked in the same order and method as the Digests are . In the Authenticks there is not that order observed in the disposition of Laws as is either in the Digests , or the Code , but as occasion was offered of any doubt , wherein the Princes resolution was necessary to every thing , so it is set down without any other method or form . And they were call'd the Novels , because they were new Laws , compared to the Laws of the Digests , Institutions , or the Code ; and sometimes they alter and correct the Laws of the other three .

Thus far went Justinian himself in his design of a general survey and disposure of the Roman Laws ; sometimes ordaining Laws of his own , and sometimes gathering together the Laws of others , till he had made an exact and absolute composition . Which enterprise that renowned scholar and Statesman of our Countrey Sir Francis Bacon does so much commend and admire , in his Epistle to Queen Elizàbeth , set before his book of Maxims of Law , that when he understood , that she had the like purpose in her breast , to enter into a general amendment of the state of her Laws , and to reduce them to more brevity and certainty ; he saith , it struck him with great admiration , when he heard it ; and acknowledges it to be one of the most chosen works , and of highest merit and beneficence towards the subject , that ever entred into the mind of any King ; but addeth , that there be rare presidents of it in government , as it cometh to pass in things so excellent , there being no president full in view but that of Justinian , as he confesseth . Whose work is the more to be admired , because the use thereof is not local , nor restrained to the state and policy of one Nation onely , as hers would have been , but may serve for the use and benefit of any state or people whatsoever , and is subservient to all accidents and occasions that can happen in common intercourse , and inded has for its object such things , as commonly arise every where throughout the World , and have no Municipal or customary Law to determine them .

But if Justinian should be thought to have failed in any thing of bringing this Art to a full perfection , yet what the learned of Christendome from his time downward to this present , has done towards the perfecting thereof , will make it up : for the infinite number of writers of all sorts , of all Nations , and in all ages , that have wrote hereupon , are prodigious to behold , and wonderful to consider .

What Glosses , Notes , Lectures , Repetitions , Commentaries , Paratitles , Analyses , Intellects , are there upon the very Laws themselves ? There is hardly any Text of Law that is not copiously written on , either in stating the true reading of it , or in clearing it from obscurity , or in enlarging upon the matter of it . Then as to the general subjects of the Law , and the particular cases and questions that fall under them , both speculative and practicall , the Tractats , Discourses , Counsels , Questions , Reports , common Opinions , Controversies , Resolutions , Practices , Observations , and Singulars , are without number .

Even this latter age of ours , besides all that which foregoing antiquity has produced , has brought forth every where in all Countreys of renown so many famous writers in this kind , that every Nation has seemed to be at an emulous contention each with other , which should most excel in such men .

For France , are reckoned Cuiacius , Brissonius , Molinaus , Antonie Faber , Peter Faber , Rebuffus , Bodinus , Tholosanus , Gothofred , Choppinus , Bellonus , Papo , Charondas , Hottoman , all of high account in that faculty .

For Spain , there are famous to this day , Covarruvias , Gemezius , Vasquius , Alvarez , Gregorie Lopez , Bernardus Diaz , Villagut , Pinellus , Franciscus Salgado de Somoza , Sarmientus , Rodericus Suarez , Johannes Lupus .

For Italy , Gabrìel Romanus , Stiaticus , Asinius , Cephalus , Gigas , Gratus , Palaeotus , Peregrinus , Bossius , Balbus , Puteus , Farinacius , Mascard , Zunt , Surdus , Vincentius de Franchis , Mozzius , Sfortia Oddos .

From Germany came forth not without much estimation and honour , Gail , Wesenbeck , Minsinger , Schneidwine , Peckius , Hopperus , Raevardus , Vulteius , Thomingius , Althusius , Sichardus , Freigius , Pacius , Forsterus , Melchier Kling .

Every one of these has left such writings behind him in the Civil Law , as will makes their memories immortal . Neither can it be any wonder , that the Civil Law it self , and the books thereof are grown so voluminous and almost infinite . Because indeed that Science does comprehend that vast and great variety of affairs and worldly business , that the large Nation of the Romans dealt in during the long continuance of that great and large Empire . And since have been added unto it , and squared as it were by the rule thereof , and applied unto it , the affairs of many Nations , which must in all changes and accidents , and in each Nation be many , various , and several from the time of that Empire down to this present . Which being severally writ upon , by several fancies , and in several wayes and methods , must needs produce throughout the World large and copious writings in this faculty , as it has in all other Arts and Sciences besides . But the benefit that the world reaps thereby , lies in this , that there neither is or can be any contract made , or any human affair transacted , either Domestick , Civil , or Military , either between governours and governed , or between the people themselves one with another , or between Nation and Nation , either upon sea or upon land , but by the help of that study and the writings thereof , there may be found most rational rules and directions ; sometimes to discern the true nature of the thing it self ; sometimes to discern its kinds ; sometimes to resolve the doubts and questions that fall under it ; sometimes to justifie it as wholly good and lawful ; and sometimes to condemn it as altogether unjust and evil . And if the action be not uniform , but various , and may be in some cases good and in others evil , it will distinguish upon the several cases ; that dealers may walk securely and safely , if they will guide their actions by the prescript of that Law , where the Laws and customes of their own Countrey doe not direct them otherwise .

No part of this pains has been taken or honour done by the learned of forreign States to the Municipal Law of any Nation , besides the Roman ; for although every State may wonderfully affect and be delighted with their own Laws , and so it may come to pass , that they may be greatly extoll'd and set up , and sometimes with much industry and great benefit to the subjects interpreted , explained , and writ upon by the writings of their own Countrey-men ; yet are they of so little esteem and account with forreigners , that they almost disdain to read them . But where any have imployed their pens in writing upon a Law of another Nation , no one example can be given , but in the Civil Law onely ; which has busied and set on work the learned of the whole 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 , quàm 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 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 z Apud Romanos prius quàm sententiam ferrent , praeco clara vice judioes ho●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 of government did belong to the trial and determination of the Civil Law , should be kept within the same cognisance still , these alterations notwithstanding . First , because for many hundreds of years , that and no other his been the standing , approved , and practised Law in those matters , and therefore in that regard to be preferred before any new Law , though better , if such a one could possibly be found . Secondly , because if it should be laid aside , it would be so impossible to finde a better , that we should find no Law or rule at all , to put in the room thereof , that would be able to decide them with any tolerable discretion or knowledge . The professours of the Municipal Law must acknowledge , that their Book cases ( the onely learning of their Law ) must needs here fail them , when not any of those matters were ever judg'd or tried before them . Where then would the Law or rule be found ? And surely from that we have before said , it were very inconvenient to commit the triall of them to such as have neither Law or knowledge proper for the determination of them . Thirdly , because thereby so eminent and so useful a profession might be kept up ; which else to the great dishonour and dammage of this Nation must irrecoverably fall , and be quite extinct . Fourthly , because if these things were suffered to go on in their accustomed way , it would make this great change of State to be the less , which in all alterations is to be wished and sought after . Fifthly , because there was nothing in the nature of those causes to tie them to the former government onely ; but that they may be tried under the name and authority of the present government , and yet as much according to the course of the Civil Law , as they were before ; for indeed the Civil Law is fitted to act under any government . It can serve the Church , as well as the State ; the Popular government , as well as the Regall ; and the Aristocratical , as well as either ; as we shall clearly find if we look into the States abroad , as France , Spain , the Empire , the Territories of the Church of Rome , the States of the Low Countreys , the States of Italy , the State of Venice , whose differing in point of government does not hinder , but that the Civil Law is used and practised in them all .

The reason whereof is , because it meddles not with matters of government at all , but was originally made to order the private affairs of the people , and to judge the matter of right between party and party onely ; as may appear by the very state and purport of the Laws themselves , which are as answers made to questions onely concerning matters of private right and interest , as they did arise from time to time , during the long continuance of the Roman Empire . Besides , the Romans themselves after they had expulsed their Kings , saw several kindes of government , and yet the Civil Law served under them all . And if it did not stand indifferent in this point of government , so many Princes and States herein very much disagreeing , would not so freely admit it into their Territories , as they do ; for can we think , that they would consent to the admittance of any thing that might endanger their government ? So that it is clear , the change of government that has been amongst us , does not at all hinder , but that as long as the same causes as well Maritime as others , do remain , and must necessarily have a Trial , the Civil Law , that tried them before , is the fittest Law to try them still .

It is of as little force and moment , and ought to hinder no more , which is objected , That the Civil Law is a forreign Law , not ordained by the Legislative power and authority of this Nation ; and therefore very inconvenient it may seem , that matters arising here should be ordered by any other Law , then which is of our own making , or that we should be made to submit to any other . Besides , to have two Laws tolerated in one State , may cause great distraction and uncertainty amongst the people , who may under several pretences be troubled and convented under both for one and the same thing . Further , the entertaining of the Civil Law , may in time be a means to supplant and undermine the Municipal Law and customes of this Nation .

For as to its being a forreign Law , what is it more in that , then the Laws of the Saxons , Danes , and Normans ; of the which our English Antiquaries , Cambden , a a Britann . fo. 153. Spelman , b b Glossar . verb. lex Anglorum . Cowell , c c Interpr . verb. Law . and Selden , d d Notes upon Fortescue . ca. 17. in princ . all take notice , that the Laws of this Nation are but a mixture and composition ? And yet it is not such a stranger amongst us neither , as may be conceived ; for not onely Antiquity will tell us , that when the Romans were possessed of this Nation , and during the continuance of their government and power here ( which was no less then 500 years ) all the affairs of this Nation were ordered and carried on by the Roman Civil Law ; and had no Law to assist , much less to check it in all that time . e e Cambdens Britan. fo. 63. Seldens Dissertat . ad Flet. ca. 4. But also if we look no further back then twenty years ago , we shall remember the Civil Law did so far spread it self up and down this Nation , that there was not any one County , which had not some part of the government thereof managed and exercised by one or more of that profession , besides the great employment and practise it had in the Courts in London . So that it being thus incorporated , and as I may say , naturalized by our selves into this Common-wealth , it ought not to be reputed or look'd upon by us a stranger any longer .

Besides , right reason from what hand soever it comes presented , ought to be embraced by us ; f f Rationabile dictum debet ita movere judicem ed judicandum , sicut ipsa lex . Quia lex est omne quod ratione consistit . Itaque sufficit allegare naturalem rationem , licet quis legem non alleget . Jas . in l. 19. Co. De collat. nu. 10. and is authority enough to it self , to carry the understanding , judgment , will , and affections of all men , though it be not put into a Law . g g Imberillitas est humani intellectus in quacunque causa legem quaerere , ubi rationem naturalem inveneris . Bald. in l. scire oporiet . parag. sufficit . Dig. De excus , Tut. But when besides its own commanding power and vertue , it comes withall recommended by such a wise State as the Roman was , and framed into a Law by them , and has since been allowed of by other Nations also , as conforming with the general reason of Man ; surely it ought not to be lookt upon as strange and forreign unto us or to our affairs , carrying about as the same reason , and dealing in the same matters that they did , meerly because we did not promulgate and enact the same .

Moreover , if we will deal in forreign affairs , and lanch forth into the wide Ocean , and converse with forreign people , and have to do with shipping , negotiation , and traffick , without which ( so populous are we grown ) we are not able so much as to subsist or live ; or if we would be enabled to stand upon our own defence against a Nation that shall assault us by a war ; or revenge unsufferable injuries done us by making war upon them ; we must not then stand upon our own Legislative authority , to which other Princes and people will not be obliged ; h 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 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 k Gail . obs. lib. 2. obs. 124. nu. 2. Lex cujusque loci inspicienda est , sive scripta sit , sive non . l 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 , quàm 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 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 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 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 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 .