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<NAME>Lauren Proux</NAME>
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<DIV1 TYPE="title page">
<PB REF="1" MS="y">
<P>The Law of Laws: OR, THE EXCELLENCY OF THE CIVIL LAW, Above all other HUMANE LAWS WHATSOEVER.</P>
<P>Shewing of how great u&s;e and nece&s;sity the CIVIL LAW is to this Nation.</P>
<P>By <HI>RO: WISEMAN,</HI> D^r of the Civil Law.</P>
<Q><P>Ea ver&egrave; prae&s;tabilis e&s;t &s;cientia, quae in foederibus, pactionibus, conditionibus populorum, Regum, exterarum&abque; Nationum, in omni deni&abque; belli jure &amp; pacis ver&s;atur.</P>
<BIBL><HI>Cicero.</HI></BIBL>
<P>That is truly an excellent knowledge, which is conver&s;ant about Leagues, agreements, the &s;everal con&s;titutions of People, Kings, and forreign Nations, and la&s;tly, in the whole Law of War and Peace.</P></Q>
<P><HI>LONDON,</HI> Printed by <HI>J. G.</HI> for <HI>R. Roy&s;ton,</HI> at the Angel in <HI>Ivy-Lane. M.DC.LVII.</HI></P>
</DIV1>
<DIV1 TYPE="to the reader">
<PB REF="2">
<PB REF="2">
<HEAD>The Epi&s;tle to the Reader.</HEAD>
<OPENER><SALUTE>Reader,</SALUTE></OPENER>
<P>_IF this Book were &s;et forth in any other Language, for Forreigners to read, I were unavoidably driven to give them an ac|count why I had put my &s;elf upon &s;o &s;u|perfluous and &s;o unnece&s;&s;ary an underta|king, as to extoll and commend that, who&s;e worth and merit is owned by all the World, and which every where &s;hines &s;o brightly, that it cannot be ob&s;cured by any, either Tongue, or Pen.</P>
<P>For it is very well known to them, that the Civil Law is the i&s;&s;ue and product of that great and mighty State, the Roman Empire, that led &s;o many Nations and people captive by their Wi&s;dome, as much as by their Valour; that was once the School of all Moral Hone&s;ty and goodne&s;s, and the &s;tage, whereon the whole variety of humane affairs was repre&s;ented.</P>
<P>Neither need I tell them, that what through the pro&s;|perous &s;ucce&s;s of that State, for which it was ordained, and what through the natural Equity that is to be read
<PB REF="3">all along in it, and its being fitted for the general affairs of <HI>Europe,</HI> the Laws of mo&s;t of the Europaean Nations (who indeed all of them anciently were &s;ubject to the Roman Government) are but as copies drawn from that original, borrowing that lu&s;tre of goodne&s;s they have, from it; and where their particular Laws faile, thither their Judicatories re&s;ort to be &s;upplied.</P>
<P>They cannot be ignorant, That though every particu|lar Nation has &s;ome few Laws of their own, proper for their occa&s;ions, government, and people; yet no where beyond the Seas is there any profe&s;&s;ion or &s;cience of Law, but this; nor any Law accounted the Law of Nations, but the Civil Law onely: That time, pra|cti&s;e, argument, and applying it to the &s;everal affairs of &s;o many Nations where it has been u&s;ed, has made it &s;o perfect and &s;o &s;ufficient a body to decide all ca&s;es by, that are between party and party, and do not concern the publick government, that they &s;tand in need of ve|ry few Laws of their own making; and without it no Laws they can make, would ever be able to &s;erve their turn.</P>
<P>To tho&s;e therefore that make &s;uch continual u&s;e of this Law in their Courts, and who &s;uffer none to &s;it as Judges, nor plead at their Bars, but &s;uch as have been brought up in that faculty, and who &s;trive to imploy tho&s;e onely in all tran&s;actions between them&s;elves and other Nations: to them, I &s;ay, to prai&s;e and applaud this Law, that is dignified by them &s;o many &s;everal wayes, is &s;o little needful, that it were almo&s;t imper|tinent.</P>
<P>But to make known to the people of this Nation to whom it is rendred now &s;o contemptible, how excel|lent it is in it &s;elf, how rational; what a general appro|bation
<PB REF="3">it has had with other Nations, and how very u&s;eful it may be to the publick welfare of this Nation divers wayes, it is a work &s;o &s;ea&s;onable and nece&s;&s;ary, that it may be done without either Apology, Preface, or rea&s;on premi&s;ed; and is no more then the pre&s;ent &s;tate of things calls for.</P>
<P>For when it is con&s;idered, what an account it has been in among&s;t us for many hundred years together; how many cau&s;es, Civil, Eccle&s;ia&s;tical, Maritime, and Military, it dealt in how the juri&s;diction thereof ran through the whole Nation; how very little it was be|neath the profe&s;&s;ion of the Common-Law it &s;elf, how many profe&s;&s;ours and practi&s;ers it maintained, and how much it did enrich them; what a number of &s;tudents it encouraged; what coercive power it was intru&s;ted with|all, and the many Courts the employment thereof lay in: And when we &s;ee, that now the cau&s;es thereof are cantonized, and like a &s;poyl divided; &s;ome carried to the Courts of Common-Law, &s;ome to the Court of Equity, others &s;ent into the Countrey, &s;ome left with|out any rule or regulation at all, and nothing left entire to the Civil Law; and when the &s;olid rea&s;on of that Law is crowded out by vulgar rea&s;on, the profe&s;&s;ours thereof &s;cattered, the &s;tudy thereof di&s;continued, the very Law-books for want of u&s;e here, all tran&s;ported beyond &s;ea to other Nations, and all coercion taken away; It is &s;o much worth the enquiring what the ground of this great change &s;hould be, that to be &s;ilent thereat were great &s;tupidity.</P>
<P>That the fall of the Eccle&s;ia&s;tical juri&s;diction might be a rea&s;on to &s;u&s;pend the exerci&s;e of that profe&s;&s;ion in &s;ome cau&s;es for a time, till it were again &s;etled, I ad|mit. But why it &s;hould not under this pre&s;ent form of
<PB REF="4">Government (if authority think fit) be re&s;tored again, as to a civil regulation of tho&s;e very matters under the Civil Magi&s;trate, no &s;atisfactory rea&s;on can be rendred. I am &s;ure, it can neither be rational, nor convenient, that they &s;hould be carried from the Civil Law, which was the known, e&s;tabli&s;hed, and practi&s;ed Law in tho&s;e matters, unto the conizance of tho&s;e, that have neither Law, nor rule, nor skill to try them; e&s;pecially when the &s;o doing does inevitably draw after it the certain ru|ine of that whole profe&s;&s;ion.</P>
<P>It is therefore very-well worthy the mo&s;t &s;erious con|&s;ideration of tho&s;e that &s;it at the Helme; That, &s;ince there mu&s;t be a triall of tho&s;e matters &s;till, and a gain attending thereupon to one or other, (which is the Game every body hunts after:) <HI>Whether the Publick is more concerned, that the profit of &s;uch coni&s;ances &s;hould flow into the pur&s;es of others, no way apt or skilful, then go to the maintaining and keeping up of &s;uch a learned pro|fe&s;sion, which this Nation cannot be without.</HI></P>
<P>And certainly, when&s;oever we &s;ee that profe&s;&s;ion laid a&s;ide (which for the publick good, I tru&s;t, I never &s;hall) we &s;hall find this Common-wealth of ours made very much inferiour and unequal to other Nations, with whom (as it is an I&s;land, and now become an active one) it has and mu&s;t have many wayes to do. In other things, as in &s;trength, riches, and alliances, we con|tend for advantage and &s;uperiority with them, why &s;hould we then &s;uffer them to over-match us in wit, dex|terity, skill, knowledge, wi&s;dome, policy, rea&s;on, or judgment, which that learning above all other, and ex|perience together gives them?</P>
<P>The dealings that we may have with them, as they are not a few, but innumerable, even as many as there
<PB REF="4">are things in the World to deal in: So &s;ome of them are of highe&s;t moment and con&s;equence al&s;o; As, <HI>Right to Kingdomes or Provinces, by Donation, last Will, Suc|ce&s;sion, or by Marriage; community or property of the Sea, and the rights of Fi&s;hing and trading there; free|dome from Cu&s;tomes and other immunities granted to for|reign Merchants; Precedency, amongst the Emba&s;&s;a|dours of Princes and Republicks; Promi&s;es of protection and aide again&s;t enemies; Entertainment and harbouring of Traytors or Rebels; Interpretation of publick Leagues or National Contracts; Not admitting of Emba&s;&s;adours, or detaining them, or u&s;ing them in any uncivil manner; Making of War, or contracting of Peace; Sending &s;up|plies to our enemies, or oppre&s;sing our friends and confede|rates; Imbargo's, &s;eizing upon our Merchants goods at land, or &s;topping our &s;hips or goods at Sea; The arbitra|ting of differences between Nation and Nation, frequently referred to Princes or other States; Of the force of Natio|nal Contracts, and of their duration, whether they &s;hall bind &s;ucce&s;&s;ours, or die with the Princes that made them; Latitude of Territory and juri&s;diction, either upon Sea or Land.</HI> The&s;e and &s;uch like are the tran&s;actions and mat|ters, that may be frequently agitated &amp; dealt in between us and other Nations; wherein before we fall to an open War, we chu&s;e to rea&s;on and expo&s;tulate the mat|ter with them; &s;ometimes we think it nece&s;&s;ary to re|mon&s;trate the right of our cau&s;e to other Nations; &s;ome|times to declare the &s;tate of the bu&s;ine&s;s to our own peo|ple: Neither of which can be done effectually and with advantage, nor &s;hall we be able to hold any &s;uch argu|ment convincingly, if we have not the perfect knowledg of the Law of Nations and the learning of the Civil Law; which to be &s;ure, is the onely kind of Rea&s;on,
<PB REF="5">that other Nations (knowing no other Common Law or Rule be&s;ides it for &s;uch matters) will encounter us withall.</P>
<P>And &s;ince we have &s;uch great need at this time of Ar|mies by Land, and Navies by Sea, to defend us from factions at home, and enemies abroad, I would put it to tho&s;e of the Military order, to con&s;ider, how not onely u&s;efull, but nece&s;&s;ary that profe&s;&s;ion is for carrying on of Military bu&s;ine&s;s al&s;o, as well by &s;ea, as by land; &amp; that all the military di&s;cipline, &amp; good government that they have in their Armies, and the right which they are enjoy|ned to afford to their very enemies, is directed by the rules and principles of that profe&s;&s;ion: for it mu&s;t be ac|knowledged, that the Municipal Law, as to the carrying on of Martial affairs, is altogether impertinent, and of no u&s;e at all; the &s;ame being a Law u&s;eful but in peace onely.</P>
<P>But there are peculiar Laws, and a proper di&s;cipline for the &s;tate of War; <HI>Sunt &amp; belli &s;icut &amp; pacis jura;</HI> and they are accommodated to the very nature and exi|gencies of it: &s;ome of which are, <HI>That there be &s;olemn denouncing of the war intended, that all di&s;&s;enters may withdraw in time, and to divert other Nations from adhering; That it be pro&s;ecuted by ju&s;t and honourable ways, without treachery, corruption, breach of faith, poy&s;on, or &s;ecret a&s;&s;a&s;sination,</HI> which the gallant Romans did di&s;|daine to act, though for never &s;o great a victory: <HI>That all articles and capitulations made be &s;trictly kept and ob|&s;erved, even towards Turkes, Pagans, Jews, or Infidels; That they be interpreted in the plaine&s;t and mo&s;t equitable &s;en&s;e, without any art or &s;ubtilty at all; That an enemy af|ter he has yielded him&s;elf, be not kill'd, but kept alive for exchange, or ran&s;ome; That what is gotten from the ene|my, is good and lawful purcha&s;e, though it was newly taken
<PB REF="5">from &s;ome of our own people or confederates, &s;o that it were but once brought &s;afe into the enemies Quarters; That the enemies countrey, when it offers to yield, be not laid wa&s;te, burnt, or de|&s;troyed; That when a Town is to be &s;tormed, women, children, aged, Eccle&s;iastical per&s;ons, &s;o far as is po&s;sible, may be &s;pared; That it be free to friends or confederates to trade with the enemy, &s;o they carry neither victuals, money, armes, or ammunition; That the Countrey, through which the Army pa&s;&s;es, no offence be|ing given, be not injured, but kept from &s;poyl and rapine; That Heraulds or me&s;&s;engers &s;ent from the enemy be received and di&s;|mi&s;&s;ed with &s;afety; That &s;trictne&s;s and &s;everity of di&s;cipline, greater then in peace, be maintained within the Camp; the vali|ant advanced to honours, and admitted to partake in the &s;poyl which he did help to get; the cowardly di&s;graced, the di&s;obedient rigorou&s;ly chasti&s;ed, the incorrigable ca&s;hiered, and the aged and worn out &s;ouldier be di&s;mi&s;&s;ed to ea&s;e with reward and honour; That a difference of degrees be ob&s;erved, and a &s;ubordination made, as the places of command differ; That for Military offen|ces, or contracts and promi&s;es made between &s;ouldier and &s;ouldi|er, the coni&s;ance thereof be in the Court Mar&s;hall, and to be tried by the Law of Armes onely; That Ho&s;tages 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 &s;hip, though carrying enemies goods in her, be taken as prize; That when a victory is gotten, the enemy &s;ubdued be u&s;ed with all clemency and moderation; That Priviledges be granted to &s;ouldiers beyond other men;</HI> 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 in&s;truct in tho&s;e matters.</P>
<P>For it has been the Civilians work, to draw together as it were into one body and Sy&s;teme, all that the Civil Law it &s;elf does afford; and what&s;oever el&s;e can be gathered from
<PB REF="6">the te&s;timonies of the ancient Philo&s;ophers, Hi&s;torians, Poets, and Orators, in what they are all, as it were by the light of nature, con&s;enting in one and the &s;ame judgment; al&s;o what has been delivered by the ancient Fathers and mo&s;t approved Canons of the Church on that &s;ubject; and e&s;pecially to bring into argument, what has been con&s;tantly upon the &s;ame occurrences in war, judg'd and practi&s;ed by the mo&s;t War-like and Heroick Nations, that have been; as the Graeci|ans, A&s;&s;yrians, Medes, Per&s;ians, Lacedaemonians, Carthagini|ans, but e&s;pecially the Romans, with whom for experience &amp; di&s;cipline in War, and ju&s;tice and bravery towards their ene|mies; no Nation that ever acted on this great Theatre of the World, is to be compared: And &s;o by the&s;e helps, the Laws of War in u&s;e at this day, have been made and perfected, only through the Civilians pains and indu&s;try; neither are they to be met with any where together, but in their books and wri|tings.</P>
<P>And therefore &s;ince this profe&s;&s;ion is &s;o u&s;eful and nece&s;&s;a|ry for the &s;ouldiers bu&s;ine&s;s al&s;o, that they cannot promi&s;e to them&s;elves any good order, wi&s;e conduct, or happy &s;ucce&s;s with their Martial enterprizes, but by that light and directi|on which it affords, it is evident, that it could never be wor&s;e &s;pared or di&s;countenanced; then now at this time. Which I humbly leave to be further thought of by the wi&s;dome of tho&s;e that rule over us.</P>
<P>And &s;o de&s;iring thee to excu&s;e me this once, for appearing thus in publick, being upon &s;o pre&s;&s;ing an occa&s;ion, as to re|vive (if by &s;uch weak endeavours it were po&s;sible) a whole profe&s;sion, almo&s;t quite expiring, I bid thee farewell, and remaine,</P>
<CLOSER><SIGNED><HI>Thine in all po&s;sible re&s;pects what&s;oever,</HI> Ro. Wi&s;eman.</SIGNED></CLOSER>
</DIV1>
<DIV1 TYPE="table of contents">
<DIV2 N="1" TYPE="book">
<PB REF="6">
<HEAD>The Arguments of the Chapters of the Fir&s;t Book.</HEAD>
<LIST>
<ITEM><LABEL>CHAP. I.</LABEL> THat a Law ought to be agreeable to true Rea&s;on. <HI>page 1</HI></ITEM>
<ITEM><LABEL>CHAP. II.</LABEL> That what Rea&s;on teacheth, &s;hould be made the &s;ubject of a Law, is no &s;uperfluous, but a profitable thing. <HI>p. 22</HI></ITEM>
<ITEM><LABEL>CHAP. III.</LABEL> What is here meant and intended by Rea&s;on. <HI>p. 24</HI></ITEM>
<ITEM><LABEL>CHAP. IV.</LABEL> That Rea&s;on is not &s;o &s;trictly required in the Law that or|ders the affairs of State, as in that that &s;ettles the diffe|rences that ari&s;e between man and man. <HI>p. 33</HI></ITEM>
<ITEM><LABEL>CHAP. V.</LABEL> That the cu&s;tomes of a Nation ought in like manner to agree with rea&s;on. <HI>p. 36</HI></ITEM>
<ITEM><LABEL>CHAP. VI.</LABEL> Where Law or custome is wanting, to judge by pre&s;ident or example, has no defence in rea&s;on. <HI>p. 38</HI></ITEM>
<ITEM><LABEL>CHAP. VII.</LABEL> That they are great advantages, which a Nation has by ru|ling by a &s;uch a Law as is rational. <HI>p. 46</HI></ITEM>
<ITEM><LABEL>CHAP. VIII.</LABEL> That Christian Nations having entertained the Civil Law into their Territories, have thereby acquired to them|&s;elves the most rational Law that has been ordained, as by the con&s;titutions thereof will appear. <HI>p. 51</HI></ITEM>
</LIST>
</DIV2>
<DIV2 N="2" TYPE="book">
<PB REF="7">
<HEAD>The Arguments of the Chapters of the Second Book.</HEAD>
<LIST>
<ITEM><LABEL>CHAP. I.</LABEL> THat the greatne&s;s and the &s;plendour of the Roman Empire does evidence the &s;ingular virtue of the Law it &s;elf, to which, as to its proper cau&s;e, it may be a&s;cribed. <HI>page 97</HI></ITEM>
<ITEM><LABEL>CHAP. II.</LABEL> The fundamentals of the Roman Civil Law were fetch'd from other States, which did then excel others most in Policy and Government. <HI>p. 103</HI></ITEM>
<ITEM><LABEL>CHAP. III.</LABEL> That time and intervenience of fatal Accidents that has &s;wept away &s;o many States, together with all their Laws, and has quite aboli&s;hed the Roman State it &s;elf, has not yet been of force to aboli&s;h the Roman Civil Law, but that it is extant &s;till. <HI>p. 110</HI></ITEM>
<ITEM><LABEL>CHAP. IV.</LABEL> That forreign Nations in doing of right between man and man, do mainly practi&s;e and make u&s;e of the rules and dictates of the Civil Law. <HI>p. 128</HI></ITEM>
<ITEM><LABEL>CHAP. V.</LABEL> The general admittance and u&s;e of the Civil Law in for|reign parts, is acknowledg'd by our &s;elves here in <HI>Eng|land. p. 133</HI></ITEM>
<ITEM><LABEL>CHAP. VI.</LABEL> The Civilians them&s;elves do not enlarge the u&s;e and pra|cti&s;e of the Civil Law in forreign parts, further then Mr <HI>Selden</HI> him&s;elf in his writings grants it to extend. <HI>p. 139</HI></ITEM>
<PB REF="7">
<ITEM><LABEL>CHAP. VII.</LABEL> No Municipal Law is &s;ufficient to meet with the multi|tude and variety of ca&s;es and que&s;tions that will happen at Land, at Sea, and in forreign parts: Which has cau&s;ed &s;o many Nations to make u&s;e 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 &s;ubject to the mi&s;chiefs of arbitra|rine&s;s, folly, and violence. <HI>p. 144</HI></ITEM>
<ITEM><LABEL>CHAP. VIII.</LABEL> That the rea&s;ons are &s;trong and weighty, upon which &s;o many forreign States do direct and order the bu&s;ine&s;s of their Tribunals most by the pre&s;cript, rea&s;on, and equity of the Civil Law. <HI>p. 153</HI></ITEM>
<ITEM><LABEL>CHAP. IX.</LABEL> The admittance and &s;way of the Civil Law in forreign parts, is yet further verified by the te&s;timonies of <HI>S^r Tho. Smith,</HI> and Dr <HI>Hakewill,</HI> the one a State&s;man, the other a famous learned Divine of our own, and by &s;ome other remarkable institutions within this Nation. <HI>p. 159</HI></ITEM>
<ITEM><LABEL>CHAP. X.</LABEL> The general name of <HI>Jus Civile,</HI> The Civil Law, is &s;ig|nally for Honours &s;ake peculiarly a&s;cribed to the Roman Civil Law, and to no other Law. <HI>p. 164</HI></ITEM>
<ITEM><LABEL>CHAP. XI.</LABEL> The Art and knowledge of doing the pure&s;t right and mo&s;t natural ju&s;tice, is laid down in the books of the Civil Law; and how it came by degrees to that perfection, that now we &s;ee it in. <HI>p. 166</HI></ITEM>
<ITEM><LABEL>CHAP. XII.</LABEL> An An&s;wer to the main Objections that are now adayes made again&s;t the continuance of the Civil Law within this Nation. <HI>p. 173.</HI></ITEM>
</LIST>
</DIV2>
</DIV1>
<DIV1 TYPE="epigraph">
<PB REF="8">
<BIBL>VVESENBEC. Parat. Dig. De Ju&s;t. &amp; jur. nu. 17.</BIBL>
<Q><HI>IN constituendo expoliendo&abque; jus Civile, Populus Romanus tantum reliquis Nationibus, velut &amp; gloria belli prae&s;ti|tit; ut &s;i omnia omnium gentium in&s;tituta, mores, leges in unum conferantur, nequa|quam &s;int cum his Romanorum legibus &amp; institutis, prudentia, aequitate, pondere, ubertate, ullo modo comparanda.</HI></Q>
<Q>The people of <HI>Rome</HI> did not onely go beyond all Nations in the world be&s;ides in renown for their warlike enterpri|zes, but &s;o much in e&s;tabli&s;hing of Laws too; That if all the Laws and cu&s;tomes of all other Nations were all laid together, they would come far &s;hort of the Roman Laws, both for wi&s;dom, equity, weight, fulne&s;s.</Q>
</DIV1>
</FRONT>
<BODY>
<DIV1 N="1" TYPE="book">
<PB N="1" REF="8">
<HEAD><HI>LEX LEG&V;M:</HI> OR, THE LAW OF LAWS, &amp;c.</HEAD>
<DIV2 N="1" TYPE="chapter">
<HEAD>CHAP. I.</HEAD>
<ARGUMENT>
<P>That a Law ought to be agreeable to true Rea&s;on.</P>
</ARGUMENT>
<HEAD>The fir&s;t Book.</HEAD>
<P>_THere is nothing under the Sun, that doth more conduce to the Pro&s;perity and Peace of a Na|tion, then fitting and well-compo&s;ed Laws.</P>
<P>In the framing whereof, tho&s;e that have the Ordaining Power, mu&s;t be heedfull to ob&s;erve many things, to make their Lawes proportio|nable to &s;o happy and &s;o ble&s;&s;ed an end.</P>
<P>A Law mu&s;t not enjoyne any wicked, ignominious, or unbe|&s;eeming things, the&s;e being in intendment of the <HI>Civill Law</HI> impo&s;&s;ible. <HI>Quae facta laedunt pietatem, exi&s;timationem, vere|cundiam no&s;tram, &amp; (ut generaliter dixerim) contra bonos mores
<PB N="2" REF="9">fiunt, neo facere nos po&s;&s;e credendum e&s;t,</HI> &s;ayes <HI>Papinian.</HI><NOTE N="a" PLACE="marg"><HI>L. 15.</HI> Co. de condit. In&s;t.</NOTE> Tho&s;e actions which wound Piety, Reputation, Mode&s;ty, or in brief, are generally di&s;allowed by the practi&s;es of &s;ober men, may be reckoned in the number of tho&s;e things which Nature admits not to be done.</P>
<P>It mu&s;t be not ob&s;cure, but certain in the Intimation, ju&s;t in the Precept, profitable in the Execution, agreeing with the form of Government, cu&s;tomes, places and time, where and when it is to be applyed. It mu&s;t be &s;ufficient for the defence of Propriety, for the encouragement of Labour, for the &s;afeguard of the Subjects per&s;ons, for determining Controver&s;ies, for re|ward of noble Actions, and excellent Arts, and rare Inventions, for promoting Trade, enriching the People, and mu&s;t wholly advance the publick good.</P>
<P>But above all things, the care of the <HI>Legi&s;lative Power</HI> ought to be &s;olicitous in nothing more, then to frame and fa&s;hion their Lawes<NOTE N="b" PLACE="marg"><HI>Plutarch</HI> &s;ay|ing, that Kings ought to be governed by Lawes, ex|plains him&s;elf, that this Law mu&s;t be a word, not writ|ten in Books, and Tables, but dwelling in the mind; a living rule, the interiour guide of their manners, and monitors of their life.</NOTE> by that great and exemplary pattern, the <HI>Law of Na|ture,</HI> and to enact or decree nothing di&s;&s;onant unto true inbred and <HI>Natural Rea&s;on;</HI> whereby a Man worketh according to God, according to him&s;elf, <HI>Nature,</HI> the univer&s;al order and policy of the world, quietly, &s;weetly, and as &s;ilently without noi&s;<GAP DESC="illegible" RESP="UOM" EXTENT="1+ letters"> a Ship that is not driven but by the naturall and ordinary co<GAP DESC="illegible" RESP="UOM" EXTENT="4 letters"> of the Water: For when the Wi&s;dome and Power of God fir&s;t be|&s;towed upon Man <HI>&V;nder&s;tanding</HI> and <HI>Rea&s;on,</HI> he intended them as guides and directors in all the actions of his life, and thereby to di&s;cerne what was good and what was evill, by that very light that &s;hined within him. When therefore the commands of a Nation are irrationall and &s;en&s;ele&s;&s;e, that light is as it were put out and extingui&s;hed, and Subjects are made to obey rather like Bea&s;ts then Men.</P>
<P>And therefore <HI>Tully</HI> &s;aid, as he is quoted by <HI>Carbo,</HI><NOTE N="c" PLACE="marg">Tractat. de legib. lib. <HI>6,</HI> di&s;p. <HI>2.</HI></NOTE> <HI>Nos legem bonam &agrave; mala, nulla alia ratione ni&s;i naturae norm&acirc; dividere po&s;&s;umus,</HI> We cannot di&s;cern a good Law from a bad, other|wi&s;e, then by comparing it with the <HI>Law of Nature.</HI> And therefore he will have it to be <HI>ju&s;torum inju&s;torumque di&s;tinctio, ad illam antiqui&s;&s;imam &amp; rerum omnium principem naturam ex|pre&s;&s;a:</HI> a rule di&s;criminating that which is ju&s;t, from that which is unju&s;t, delineated and drawn forth by the old. Originall of
<PB N="3" REF="9">Nature, and &s;ayes it is the highe&s;t or chief rea&s;on grafted in Nature, commanding tho&s;e things which are to be done, and forbidding the contrary.</P>
<P>And again:<NOTE N="d" PLACE="marg">Lib. <HI>2.</HI> De Inven.</NOTE> <HI>Initium juris &agrave; natura profectum, deinde quaedam in con&s;uetudinem ex utilitate rationis venerunt, po&s;tea res &agrave; na|tura profectas &amp; &agrave; con&s;uetudine probatas legum metus &amp; religio &s;anxit:</HI> The beginning of all Law did proceed from Nature it &s;elfe, but afterwards there were certain things which were by evidence of Rea&s;on found nece&s;&s;ary, and thereupon brought into common practi&s;e; and at length, the fear and reverence of Laws did &s;ettle and enforce what had been &s;o taught by Na|ture, and Cu&s;tome it &s;elfe had allowed of. So that the Act of the Law, is but to &s;ee that effectually ob&s;erved and executed, which Nature hath ordained, and which the common Rea&s;on &amp; Cu&s;tome of men doth declare to be ju&s;t, equal, and nece&s;&s;ary.</P>
<P>And &s;ometimes the &s;ame<NOTE N="e" PLACE="marg">Lib. delegus. lib. <HI>1.</HI></NOTE> <HI>Tully,</HI> &s;tyles Law the very force of Nature, the <HI>&V;nder&s;tanding</HI> and <HI>Rea&s;on</HI> of a wi&s;e Man, the rule of right and wrong. And<NOTE N="f" PLACE="marg">Lib. <HI>3.</HI> de rep.</NOTE> defining Law as it ought to be, ra|ther then what generally it is, he terms it right rea&s;on, &s;pread over all people, durable, everla&s;ting; which, as fire burns eve|ry where alike, is not one at <HI>Rome,</HI> and another at <HI>Athens,</HI> one now, and another hereafter, but being the &s;ame and unalterable, &s;erves for all times, and runs through all people, which began not when it was fir&s;t written, but when it fir&s;t &s;prung forth from Nature.</P>
<P><HI>Plato</HI><NOTE N="g" PLACE="marg">In Min. de rep. &amp; de legib.</NOTE> will al&s;o have it a rea&s;onable rule, leading and dire|cting men to their due end, for a publick good, ordaining pe|nalties for them that tran&s;gre&s;&s;e, and rewards for them that obey. And <HI>I&s;idore,</HI> who requires other properties in a Law, requires this of Rea&s;on too; for in his<NOTE N="h" PLACE="marg">Lib. <HI>3.</HI> cap. <HI>3.</HI></NOTE> Etymologies he &s;ayes, <HI>Lex erit omne qu&ograve;d ratione con&s;titerit, duntaxat qu&ograve;d religioni congruat, qu&ograve;d di&s;ciplinae conveniat, qu&ograve;d &s;aluti proficiat;</HI> A Law &s;hall be that, which may &s;tand with Rea&s;on, agree with Religi|on, &s;uit with the education and di&s;po&s;itions of the people, and be beneficiall to the publick welfare. With<NOTE N="i" PLACE="marg">Prima &s;ecundae qu. <HI>97.</HI> Ar. <HI>1.</HI></NOTE> <HI>Aquinas</HI> al&s;o, <HI>Lex humana e&s;t quoddam dictamen rationis, quo diriguntur hu|mani actus;</HI> Humane Law is a dictate of Rea&s;on, by which hu|mane acts are &s;teered. And again,<NOTE N="k" PLACE="marg">Que&s;t. <HI>91.</HI> Art. <HI>4.</HI></NOTE> <HI>Lex nihil aliud e&s;t, qu&acirc;ne
<PB N="4" REF="10">quaedam rationis ordinatio ad bonum communt, ab eo qui curam communitatis habet, promulgata:</HI> A Law is nothing el&s;e but a transferring or applying of Rea&s;on to the common good, ma|nife&s;ted to all the people, by him who hath care of the Com|mon-wealth. The <HI>Civil Law</HI> &s;peaks the &s;ame thing,<NOTE N="l" PLACE="marg">Lib. <HI>1.</HI> Dig de Legib.</NOTE> <HI>Lex e&s;t commune praeceptum, virerum prudentum con&s;ultum,</HI> A Law is an univer&s;all and generally known precept. <HI>Notitia aequi &amp; bo|ni &agrave; natura omnibus indita,</HI> as<NOTE N="m" PLACE="marg">Lib. <HI>1.</HI></NOTE> <HI>Gothofred</HI> explains it, ingraft|ed in Man by Nature, and the re&s;ult of &s;age and under&s;tanding men.</P>
<P>All<NOTE N="n" PLACE="marg">Minfinus In&s;t. de jur. Nat. gent. &amp; Civ. in princ.</NOTE> Civilians without any contradiction doe con&s;ent and a|gree, that the true Law of a State is but <HI>Determinatio juris na|turalis,</HI> a declaring or expounding in &s;uch particular ca&s;es or accidents, as mo&s;t frequently happen among&s;t men, what the <HI>Law of Nature</HI> intends by its generall precept; or it is a rationall di&s;tingui&s;hing upon the <HI>Law of Nature,</HI> making it to be of force in &s;ome ca&s;es, not of force in others, with &s;uch directions for ob&s;erving the &s;ame, and kindes of puni&s;hment to the offenders, as the wi&s;dome of each &s;tate &s;hall judge mo&s;t rationall, and mo&s;t convenient. Not to Steal, not to commit Adultery, not to Kill, Nature it &s;elfe taught in generall: but who &s;hould be &s;aid to Steal; who to commit Adultery; who to Kill; what proof &s;hould be &s;ufficient to convict a Man of the&s;e crimes; who might be the accu&s;ers, how and in what manner, and before what Judges the offenders &s;hould be proceeded again&s;t; what pun &s;hments they &s;hould &s;uffer, and after what time no accu&s;a|tion for them &s;hould be heard, becau&s;e the <HI>Naturall Law</HI> did not teach in particular, therefore the Law of every State doth determine them; which as it is done in pur&s;uance of the primary precepts of Nature, &s;o mu&s;t it be done too with the &s;ounde&s;t judgement and rea&s;on, having an eye to the matter of the pre|cepts, to the nature of the people, and to the &s;tate of the Com|mon-wealth it &s;elfe. And the&s;e &s;everall particulars being thus determined and put into a Law, they adopt to them&s;elves the name of a <HI>National Law.</HI><NOTE N="o" PLACE="marg">L. <HI>6.</HI> Dig. de Ju&s;t. &amp; Jur.</NOTE> <HI>Jus Civile,</HI> &s;ayes <HI>&V;lpian, e&s;t, quod neque in totum &agrave; naturali jure vel gentium recedit, neque per omnia ei &s;ervit; Itaque c&ugrave;m aliquid addimus, vol, detrahimus juri communi, jue proprium, id e&s;t, Civile intelligimus.</HI> The
<PB N="5" REF="10">Law of a people is that, which neither doth wholly e&s;trange it &s;elf from the <HI>Law of Nature,</HI> or of <HI>Nations,</HI> nor doth &s;trictly follow them in all things neither: when therefore we adde or di|mini&s;h ought from the <HI>&V;niver&s;al Law,</HI> we make it thereby a pe|culiar Law, and give it the denomination of a <HI>Civill,</HI> or <HI>Muni|cipal Law;</HI> &s;o that the <HI>Roman Law</HI> will have no other mate|riall difference to be between the <HI>Law of Nature,</HI> and the <HI>Di|ctates of Rea&s;on,</HI> and the <HI>Law of a State,</HI> but that what was be|fore common and univer&s;all in notion, is now by di&s;tin|gui&s;hing it into ca&s;es, by fitting it with proper circum&s;tances for more ready execution, and by moulding it into a form, ap|propriated to peculiar u&s;e.</P>
<P>The <HI>Cansn Law</HI> that enumerates all the e&s;&s;entiall properties of a Law, doth exact al&s;o that it be hone&s;t, ju&s;t, and agreeable to Nature:<NOTE N="p" PLACE="marg">Car. <HI>2.</HI> Di&s;t. <HI>4.</HI></NOTE> <HI>Erit lex hone&s;ta, ju&s;ta, po&s;&s;ibilis, &s;ecundum natu|ram, &s;ecundum patriae con&s;uetudinem; loco temporique conveniens, nece&s;&s;aria, utilis, maenife&s;ta quoque, ne aliquid per ob&s;curitatem in captionem contineat; nullo privato commodo, &s;ed pro communi ci|vium utilitate con&s;cripta:</HI> A Law &s;hall be hone&s;t, ju&s;t, po&s;&s;ible, according to Nature, &s;uiting with the cu&s;tomes of the Coun|trey, agreeing both with place and time, nece&s;&s;ary, u&s;efull, and al&s;o plain, le&s;t through ob&s;curity it may en&s;nare; nor made for private advantage, but for the common good of all the people.</P>
<P>Thus by the judgement of all, <HI>Ratio e&s;t anima legis; Lex tune laudatur, quando ratione probatur: Nature</HI> is the Fountain, and <HI>Rea&s;on</HI> doth animate and make the Law, and gets it the prai&s;e and acceptation. This indeed is a lightning and raye of the Divinity; <HI>Ratio nihil aliud e&s;t, quam in corpus humanum pars divini spiritus immer&s;a,</HI> &s;ayes<NOTE N="q" PLACE="marg">Epi&s;t. <HI>66.</HI></NOTE> <HI>Seneca:</HI> It is the &s;tream and dependance of the eternall Law, which is God him&s;elfe and his will. <HI>Quid natura ni&s;i Drus, &amp; divina ratio toti mundo &amp; partibus ejus in&s;erta?</HI> What is Nature but God, and Divine rea|&s;on in&s;erted into the whole world, and immixed in all the parts thereof<NOTE N="r" PLACE="marg">Lex nihil all|ud e&s;t, nifi recta, &amp; &agrave; numite Deorum tracta ratio, <HI>Cicer. Philip. 11.</HI></NOTE>? The Law of <HI>Mo&s;es</HI> in his <HI>Decalogue</HI> is an outward and publick Coppy, the Law of the <HI>twelve Tables</HI> and the <HI>Ro|man Law,</HI> the morall in&s;tructions of <HI>Divines</HI> and <HI>Philo&s;ophers,</HI> the adverti&s;ements and coun&s;ells of Lawyers, the edicts and ordi|nances
<PB N="6" REF="11">of the be&s;t Princes are no other but draughts and parti|cular Pourtrayes of it.</P>
<P>If therefore there be any Law, that varieth from this fir&s;t and originall Mi&s;tre&s;&s;e, commanding where &s;he forbids, or forbid|ding where &s;he commands or allowes, it is a mon&s;ter, fal&s;hood, and error. As for example, <HI>Adver&s;us periculum naturalis ra|tio permittit &s;e defendere. Itaque &s;i &s;ervum tuum latronem in&s;i|diantem mihi occidere, &s;ecurus ero,</HI> &s;ayes<NOTE N="&s;" PLACE="marg">Lib. <HI>1.</HI> Dig. Ad l. Aquil.</NOTE> <HI>Gaius.</HI> Natural Rea|&s;on gives a man licen&s;e to defend him&s;elf again&s;t any danger, therefore I am in no danger of the Law, if I kill thy Servant that lyes in wait to mi&s;chief me. Again, <HI>Si quis percu&s;&s;orem ad &s;e venientem gladio repulerit, non ut homicida tenetur; quia defen&s;or propriae &s;alutis in nullo pecc&acirc;&s;&s;e videtur,</HI> &s;ayes <HI>Gordian</HI> the<NOTE N="t" PLACE="marg">Lib. <HI>2.</HI> Co. Ad l. Co<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">nel, de Sicar.</NOTE> Emperor: If a Man &s;hall &s;trike him dead that comes to de|&s;troy him, he &s;hall not be puni&s;hed as a Man-&s;layer, becau&s;e the pre&s;erver of his own life offends in nothing. That Law then &s;urely is very unnatural, that inflicts forfeiture of any part of his e&s;tate, though it requires not either the whole or his life, up|on any per&s;on, for &s;laying another in his own ju&s;t and nece&s;&s;a|ry defence; when as if he had not done as he did, he mu&s;t have been in perill of lo&s;ing his own life.</P>
<P>It is as prodigious to naturall equity and good rea&s;on, that a man that is unhappily peradventure doing of a lawful act, nor purpo&s;ing the lea&s;t mi&s;chief to any per&s;on, but by meer chance author of anothers death, &s;hould be &s;ubject to any puni&s;hment or lo&s;&s;e what&s;oever. <HI>Mera infortunia nec paenam mereutur, n<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">c ad re&s;titutionem damni obligant,</HI> &s;ayes<NOTE PLACE="marg">u|De Ju Bill. Lib. <HI>3.</HI> cap. <HI>11.</HI> &s;ect. <HI>4.</HI></NOTE> <HI>Grotius.</HI> No man de&s;erves to be puni&s;hed, or is bound to make any reparation for pure ca&s;ualties. If an arrow being &s;hot at a Bea&s;t or at Buts, lights upon a Man and kills him; or a &s;tone ca&s;t over an hou&s;e, or an arme of a Tree being cut, and falling, where &s;ea&s;onable war|ning is given to all that are neer to take heed, be the cau&s;e of anothers death, &s;uch ca&s;uall Homicide is not in any kind puni&s;h|able.<NOTE N="x" PLACE="marg">Lib. <HI>5.</HI> Co. ad l. Corn<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">l de Si|car &s;ect. <HI>5.</HI> Inst. dc l Aquil.</NOTE> A Law therefore that puni&s;heth a man for &s;uch adven|ture or misfortune, is not a ju&s;t or rationall Law, being indeed repugnant to the <HI>Law of God,</HI> which protected &s;uch per&s;ons, and appointed them a City of refuge to flye unto;<NOTE N="y" PLACE="marg">Numb. 35.15.22. Jo&s;h. 20.3. Deut. 19.5.</NOTE> for &s;uch an act happening in &s;uch &s;ort, &s;eemeth to be the work of God him&s;elf.</P>
<PB N="7" REF="11">
<P>It is a cruelty al&s;o, which Nature and Rea&s;on abhorreth, that a King, who ought to be as a Sheepherd and Guardian of his people, &s;hould have an e&s;tabli&s;hed liberty to endanger his Subjects lives and liberties, by a criminal accu&s;ation brought again&s;t them; and yet they be denyed the natural liberty and freedom to defend them&s;elves, by bringing that Evidence, and a&s;&s;i&s;tance of Coun&s;el, that may &s;erve to clear them. Indeed all kind of awfull &s;ubmi&s;&s;ion and reverence is due to the Prince from his Subject; but that is no way impeached by a mode&s;t and fair defence. And therefore by the <HI>Civil Law,</HI> in any mat|ter of complaint that was brought by the publick Exchequer, whether Criminal or Civil, the defendant had his full defence mo&s;t free. <HI>Defen&s;ionis facultas danda e&s;t his quibus aliquam inquietudinem fi&s;cus infert</HI><NOTE N="z" PLACE="marg">Lib <HI>7.</HI> Co de Jur. fi&s;c.</NOTE>: Liberty of defence ought to be granted to tho&s;e, whom the Exchequer brings into any trouble. And who&s;oever is impeached as a Malefactor, that Law is &s;o indulgent to him, till he be convicted, that if he be in Pri&s;on, the Magi&s;trate is to make known by open Proclamation, what day he intends to hear him; <HI>Ne hi qui defexdendi &s;unt,</HI> &s;ayes<NOTE N="a" PLACE="marg">Lib. <HI>18</HI> Sect. <HI>9.</HI> Dig. de Que&s;t.</NOTE> <HI>Paulus, &s;ubitis accu&s;atorum criminibus opprimantur; quamvis defen&s;ionem quecunque tempore, po&s;t ulante reo, negari non oportet; adeo ut propterea &amp; differantur &amp; proferantur cu&s;t<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">|diae:</HI> Le&s;t they which are to make their defence, be too &s;ud|denly brought to tryall by their Accu&s;ers, and thereby de&s;troy|ed: Howbeit the Court &s;hall not deny to hear their defence at any time, when them&s;elves will ask it; for which cau&s;e, the Pri|&s;oners may have a certain time &s;et at fir&s;t, and then if cau&s;e be, further day al&s;o may be given. And though, when the per&s;on accu&s;ed is not under re&s;traint, if he &s;hall not appear to an&s;wer the accu&s;ation, &s;ome time within a year after Summons had, his e&s;tate is irrecoverably lo&s;t, and forfeited to the Exchequer, and for that he &s;hall never be heard more<NOTE N="b" PLACE="marg">Lib. <HI>4.</HI> Dig. De requir. vel ab&s;ent. damn.</NOTE>: yet as to &s;ave him from per&s;onall puni&s;hment, neither the expiration of a year, nor the efflux of any time &s;hall barre him, but that he may &s;till be heard to defend him&s;elf<NOTE N="c" PLACE="marg">l. <HI>2.</HI> co. De Requirend. rei.</NOTE>: For &s;elf pre&s;ervation is &s;o<NOTE N="d" PLACE="marg">Hoc &amp; ratio doctis, &amp; mos gentibus &amp; &s;e|ris natura ip&s;a. prae&s;erip&s;is, ut omnem &s;emper vim &agrave; corpore, &agrave; capite, &agrave; vitae&s;uae propul&s;arent. <HI>Cic. pro Mil.</HI></NOTE> natural, that a Law that is &s;et up to infringe it, may ju&s;tly &s;eem to fight a|gain&s;t nature.</P>
<PB N="8" REF="12">
<P>The&s;e Laws therefore, and &s;uch like, as doe thus cro&s;&s;e and encounter common &s;en&s;e, and natural Rea&s;on, are no fitter to be &s;tyled Laws, then the dead Carka&s;&s;e of a Man, that is de&s;t tute of the e&s;&s;entials of Life, Soul, and Rea&s;on, can be called a Man. And therefore <HI>Tully</HI> did &s;et down the truth, when he taught,<NOTE N="e" PLACE="marg">L. <HI>1</HI> de legib.</NOTE> <HI>Eos qui pernicio&s;a &amp; inju&s;ta populis ju&s;&s;a de&s;crip&s;erint, c&ugrave;m contra fecerint quam polliciti profe&s;&s;ique &s;unt, quidvis potius tu|li&s;&s;e quam leges.</HI> They that did promulgate to the people per|nicious and unju&s;t Laws, &s;ince they did clean contrary to that that they alwayes promi&s;ed and profe&s;&s;ed to doe, they might better be thought to enact any thing el&s;e then Laws.</P>
<P>And though it be never or very rarely &s;een, that any State doth &s;uffer any law to pa&s;&s;e them, which doth directly cro&s;&s;e the chiefe and fundamentall <HI>Laws of Nature,</HI> or which oppo&s;es the fir&s;t and main principles of <HI>common Rea&s;on,</HI> as to give direct licence to Athei&s;me, Theft, Adultery, Homicide, invading of the rights or po&s;&s;e&s;&s;ion of others, Breach of Faith or Cove|nants, Rebellion again&s;t Magi&s;trates, Di&s;obedience to Parents, abandoning of Children or &s;uch like, (for this were too odious and dete&s;table, and would pre&s;ently di&s;&s;olve all &s;ociety and go|vernment:) Yet the care of a Legi&s;lator doth not determine here, but mu&s;t extend further al&s;o, if they will have their Laws to be of one complexion and likene&s;&s;e, and all to agree with the <HI>Lawes of Nature,</HI> and the Dictates of <HI>&s;ound Rea&s;on;</HI> for to each of tho&s;e fir&s;t and fundamental principles, there are divers infe|riour things and actions appertaining, which doe mediately or immediately depend upon, and refer unto them, &s;tanding &s;ome in a nearer, others in a remoter di&s;tance from them; but all &s;o knit and conjoyned with the fir&s;t and main principle, to which they are &s;ubordinate, and do as it were wait upon, that if any of them be &s;etled by a Law, or practi&s;ed otherwi&s;e then they ought to be, the fir&s;t and great principle al&s;o by con&s;equence is violated &amp; broken, or at lea&s;t an occa&s;ion offered to violate and break it: and therefore the Legi&s;lators care mu&s;t be to &s;ettle the&s;e in|ferior and &s;ubordinate things al&s;o in &s;uch wi&s;e, as that they may not encounter with any chief or fundamental rule of Nature, to which they may have any reference or application. For in|&s;tance, That Parents &s;hould educate their Children, and &s;upply
<PB N="9" REF="12">them with maintenance, is a Law proceeding from Nature. And though no humane Law was ever found, that di&s;charged Parents of &s;uch their duty, yet if a Law &s;hal leave it free to a Parent when he dyes, to give away all from his own Children to a &s;tranger, or to di&s;po&s;e of all to one child, without making any provi&s;i|on for the re&s;t; is not that fundamentall Law of Nature there|by con&s;equentially infringed and broken? By the <HI>Roman Law</HI> therefore which does &s;trictly tye all Parents to this Duty<NOTE N="f" PLACE="marg">Go. de Alend. Liber.</NOTE>, there is &s;uch a proportion due to Children out of their Parents e&s;tates, when they dye, as the Parents, but upon certain cau|&s;es ju&s;t and true, cannot give away from them, which was the third part, if there were four children or under; or half of the whole &s;ub&s;tance, if there were more, among&s;t them all; the re&s;t they might freely give away to whom they plea&s;ed. And this the Law made &s;o &s;ure to them, that though the Father for &s;ome offence did &s;uffer Death, and his E&s;tate was confi&s;cate, yet half the E&s;tate &s;hould goe to the Children notwith&s;tanding: <HI>Ne alieno admi&s;&s;o, graviorem poenam luerent quos nulla contin|geret culpa;</HI><NOTE N="g" PLACE="marg">Lib. <HI>7.</HI> dig. dc Bon. damuat.</NOTE> Le&s;t the Fathers fault &s;hould prove a &s;harper pu|ni&s;hment to them that offended not, except the fault were <HI>Trea|&s;on,</HI> in which ca&s;e, for terror to others, they lo&s;t all: <HI>&V;t charitas liberorum amiciores parentes reip. redderet</HI><NOTE N="h" PLACE="marg">Lib. <HI>8.</HI> dig. quod metus cau&s;. &s;ect. fin.</NOTE>; That their very af|fection to their Children, knowing how greatly they were like to &s;uffer after them, might make them timorous how they &s;o offended.</P>
<P>Likewi&s;e, if the Parent &s;hall make no Will, nor make any di&s;po&s;ition of his E&s;tate in his life time, dut dye inte&s;tate, if, when one of the Children hath entred upon his Fathers E&s;tate, though by lawfull Aathority, the Law of a State &s;hall adjudge the whole Inheritance unto him, and not admit any of the re&s;t of his Brethren and Sifters, how many &s;oever they be, to divide or to have any &s;hare with him, neither in reall E&s;tate, nor per|&s;onal; &s;urely this is a contradiction to that Original <HI>Law of Nature,</HI> that bindes Parents to provide for all tho&s;e that are of the &s;ame Fle&s;h &amp; Blood with them; for what them&s;elves cannot doe being dead, their E&s;tates ought to performe. The <HI>Civil Law</HI> therefore, making no difference between Land and Goods, nor between Eide&s;t and Younge&s;t, nor Male and Female, di|vides
<PB N="10" REF="13">the whole E&s;tate, reall and per&s;onal, equally among&s;t the Children. <HI>Ratio naturalis qua&s;i lex quaedam tacita, liberis pa|rentum haereditatem addicit, velut ad debitam &s;ucce&s;&s;ienem eos|vocando,</HI> &s;ayes<NOTE N="i" PLACE="marg">D. l. <HI>7.</HI> Dig. de Ben. damn. l. <HI>7.</HI> Dig. &s;i Tab. te&s;tam. null. &s;. <HI>1.</HI></NOTE> <HI>Paulus:</HI> There is as it were a &s;ecret Law made by Nature her &s;elfe, that &s;ettles the Parents E&s;tate upon the Children, calling them to &s;ucceed as in their proper right. And, <HI>Omnia quae no&s;tra &s;unt; liberis no&s;tris ex voto paramus,</HI> &s;ayes<NOTE N="k" PLACE="marg">Lib. <HI>50.</HI> Dig. de B<GAP DESC="illegible" RESP="UOM" EXTENT="3 letters">. libert. &s;ect. <HI>2.</HI></NOTE> <HI>Tryphoninus;</HI> All that we doe po&s;&s;e&s;&s;e, we profe&s;&s;edly de&s;tine to our Children. Neither does it give one childe any advantage again&s;t the re&s;t, that he has fir&s;t lawfully got into po&s;&s;e&s;&s;ion, for he has but thereby made him&s;elf &s;ubject to be &s;ued by the re&s;t, to come to a Partition with them<NOTE N="l" PLACE="marg">Tot. Tit. dig. &amp; Co. Famil. erci&s;e.</NOTE>; for Action to divide, being once brought, the Judge is told by<NOTE N="m" PLACE="marg">Lib. <HI>25.</HI> &s;ect. <HI>20.</HI> Dig. Eod.</NOTE> <HI>Paulus,</HI> what he mu&s;t doe; <HI>Index familiae erci&s;cundae nihil debet indivi|&s;um relinquere;</HI> The Judge of a Partition ought to leave nothing undivided. A Law then that forbids Parents to ca&s;t off the care of their Children, as nature does, does not agree with Na|ture, nor with it &s;elfe neither, if it does not as the <HI>Civill Law</HI> does, make its other con&s;titutions &s;uitable, and put it out of the power both of Parents and Children, by fraudulent wayes to make their grand <HI>Law of Nature,</HI> and <HI>Dictate of Rea&s;on</HI> fruit|le&s;&s;e and of no effect.</P>
<P>Likewi&s;e it is not &s;ufficient, that the Law of a State has not declared any thing again&s;t Honour, Reverence, and awful re|&s;pect, which Nature it &s;elfe has enjoyned Children to yeild unto their Parents, except it does di&s;po&s;e and order the actions and demeanour of Children an&s;werable to that very duty; for if a State &s;hall give Children a freedome to bring like actions and accu&s;ations again&s;t their Parents as again&s;t others, or to Marry without their con&s;ent, or to give in evidence again&s;t them, or &s;hall not puni&s;h them when they offer violence to their Parents, or &s;peak reproachfully again&s;t them; the reve|rential re&s;pect &s;o due by Nature to Parents, will &s;oon be turned into contempt and &s;corn. The <HI>Civil Law</HI> therefore has not onely &s;aid, <HI>Filio &s;emper hone&s;ta &amp; &s;ancta per&s;ona patris videri debet</HI><NOTE N="n" PLACE="marg">Lib. <HI>9.</HI> digo ob&s;eq. parent. &amp; pairon. p ae|<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">land.</NOTE>; The per&s;on of a Parent ought to be reputed by a Child as Venerable and Religious: But in order to this, it al&s;o has forbidden Children to Marry without their Fathers con&s;ent fir&s;t
<PB N="11" REF="13">obtained, which if they doe, the Marriage is made void<NOTE N="o" PLACE="marg">Lib. <HI>18.</HI> Dig. de vit. nupt. l. <HI>7.</HI> Co de nupt. In&s;t. cod. in princ.</NOTE>. Like|wi&s;e, <HI>Si filius matrem aut patrem, quos venerari oportet, con|tumeliis afficit, vel impias manus ei infert; praefectus urbis de lictum ad publicam pietatem pertinens, pro modo ejus vindicat:</HI> If a child &s;hall uttter approbrious words of Father or Mother, whom he ought to have in veneration, or &s;hall lay wicked hands upon them, the Magi&s;trate &s;hall puni&s;h it as a publick of|fence, and as the quality thereof de&s;erveth<NOTE N="p" PLACE="marg">Lib. <HI>1.</HI> Dig. de ob&s;eq. &s;ect. <HI>2.</HI></NOTE>. It will not &s;uf|fer Children to bring any criminal accu&s;ation or exception a|gain&s;t their Parents, whereby their credit may be empaired<NOTE N="q" PLACE="marg">L. <HI>2.</HI> dig. cod.</NOTE>; nor commence any &s;uit at all again&s;t them, except &s;pecial leave from the Judge be fir&s;t gotten<NOTE N="r" PLACE="marg">Lib. <HI>2.</HI> &amp; <HI>13.</HI> Dig de injue voc.</NOTE>. Nor put a parent to the Oath of calumny,<NOTE N="&s;" PLACE="marg">Lib. <HI>7</HI> &s;ect. <HI>3.</HI> dig. de ob&s;equ.</NOTE> as may be done to all parties be&s;ides, that are in judgement, le&s;t it &s;hould thereby be &s;u&s;pected, that he does ca|lumniate with his own Child. Nor &s;hall a Child be heard as evidence again&s;t his Parent, though he offers him&s;elfe to be a witne&s;&s;e again&s;t him<NOTE N="t" PLACE="marg">Lib. <HI>6.</HI> Co. de Te&s;t.</NOTE>. Again, the Lawes of all States profe&s;&s;e to abhor all fraud, deceit, and circumvention in all contracts and dealings among&s;t men, as Nature it &s;elfe and the common voice of Nations has forbidden; for but upon confidence of hone&s;t, upright and fair dealing, no trading, intercour&s;e, or corre&s;pondence could be &s;ecure. Yet if the Law of a State &s;hall onely admoni&s;h all that buy, barter, or exechange, to be cautious and wary at their own peril, and when they be cheated with any un&s;ound &amp; corrupted Merchandi&s;e, or in the price be|yond all mea&s;ure, if it &s;hall leave them helple&s;s &amp; without relief: Or if a State &s;hall give licence or toleration to debtors to pa&s;&s;e &amp; convey away all their E&s;tates, thereby to deceive their Credi|tors, &s;o it be done before action brought: or if practi&s;es of col|lu&s;ion may be u&s;ed, or feigned actions brought under counter|feit and fictitious names, and in colourable and fallacious forms, on purpo&s;e 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 hone&s;ty, truth and faithfulne&s;&s;e, &s;o requi&s;ite in all affaires acted among&s;t men be? And therefore the <HI>Civill Law</HI> does not onely &s;ay in the generall, <HI>In omnibus contractibus bonu fides requiri|tur;</HI> And, <HI>Naturalis &s;uadst aequitas, ut ex bona fide contraha|tur:</HI>
<PB N="12" REF="14"><NOTE N="u" PLACE="marg">Schenidw. In&s;t. de action. &s;. estionum. <HI>nu. 6.</HI></NOTE> All Contracts mu&s;t be made with hone&s;ty; and natural Equity invites us to hone&s;t dealing. But it comes to particulars al&s;o, and will allow of deceit no where: for if a man be decei|ved in the price of a Commodity bought, <HI>&s;upra dimidium,</HI> above half the value of it (for &s;o far as to half, inequality of value is born with for avoiding endle&s;s challenges, <HI>Et nt omnis obligatio emptionis &amp; venditionis &s;emper &s;it in incerto,</HI> that all uncertainty in buying and &s;elling may be removed<NOTE N="x" PLACE="marg"><HI>l. 2.</HI> co. de re|&s;cind. vend.</NOTE>) the &s;eller at his election &s;hall be enforced either to take his commodity again, or re&s;tore to the buyer what he has taken above the true worth of it. <HI>Im|modicae lae&s;io excedens dimidium ju&s;ti pretii, gravior e&s;t qu&agrave;m &ugrave;t toleretur:</HI> an immea&s;urable prejudice, which exceeds half the ju&s;t 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 ano|ther kinde, the Judge has commi&s;&s;ion either to di&s;annull the thing, or to take &s;uch order that the decriver may not gain by his evil &s;ubtilty,<NOTE N="y" PLACE="marg"><HI>l. <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">.</HI> Dig. fiquis <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">aut. <HI>l. 134. &s;. 1.</HI> di. de reg. jur. <HI>2.</HI></NOTE> nor the other lo&s;e by his &s;implicity and weak|ne&s;s<NOTE N="z" PLACE="marg"><HI>l. 155.</HI> Dig. de reg jur.</NOTE>.</P>
<P>If a di&s;ea&s;ed or unmerchantable commodity be &s;old, and the defects thereof not vi&s;ible, the Civil Law will compel the &s;eller to take it again, and give the buyer his money back:<NOTE N="a" PLACE="marg">Dig. De aedi<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">. edict.</NOTE> Or if a &s;eller &s;hall tell the buyer, that the thing &s;old is thus and thus qualified, by which, the buyer that cannot &s;ee whether it be &s;o or no till &s;ome good trial had, is induced to give the more, and afterwards it is found clear otherwi&s;e, the &s;eller is to give &s;o much back, as the thing is le&s;&s;e worth by tho&s;e qualities which are wanting. <HI>Nam ea quae commendandi cau&s;a in venditionibus dicuntur, venditorem obligant, ni&s;i palam &s;int:</HI> Tho&s;e qualities or conditions, which any thing that is &s;old is commended for, mu&s;t bee made good by the &s;eller, except they bee &s;uch as the buyer may be by his own view certified, that they are not &s;o good as they are &s;poken.<NOTE N="b" PLACE="marg"><HI>l. 43.</HI> Dig. de contrab, erupt.</NOTE> Likewi&s;e if a man &s;hall &s;ell Land, Hou&s;e, or any thing el&s;e, 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 <HI>emptorem indemnem &s;ervare de|bet,</HI> he &s;hall &s;ave the buyer harmle&s;&s;e, becau&s;e it doth naturally ari&s;e without any &s;pecial covenant out of the bargain it &s;elf, that the buyer &s;hall either quietly enjoy the thing, or at lea&s;t be in|demnified
<PB N="13" REF="14">by him that &s;old it.<NOTE N="c" PLACE="marg"><HI>Lib. 11.</HI> Dig de act. empt. <HI>1.6.</HI> co. de evict.</NOTE> And if a man &s;hall pa&s;s away his E&s;tate to defraud his Creditors, leaving nothing, or not enough in him&s;elf to &s;atisfie his ju&s;t debts that he had contracted be|fore; the Civil Law, without di&s;tingui&s;hing whether it was done before action brought, or after, revokes it out of the hands into which it was put, and reinve&s;ts the debtor in it, and makes it as liable to his debts, as if no &s;uch thing had been done.<NOTE N="d" PLACE="marg">Dig. quae in fraud. cred.</NOTE> Neither does it onely di&s;allow but puni&s;h al&s;o tho&s;e that do prevaricate and help the cau&s;e of their adver&s;ay, by waving their own ju&s;t pleas, and wilfully failing to prove what they may, and in &s;hew undertook to do.<NOTE N="e" PLACE="marg">Di de praeva|ricat.</NOTE> It will not &s;uffer any &s;uch combination or practi&s;e of colluding to have any effect to the taking away or prejudicing of the right of any per&s;on that is concerned. For if the Executor of a Will &s;hall combine with any of the next of kin to make the decea&s;ed dye inte&s;tate, and there|upon does faintly defend it in Court where it is in que&s;tion, and &s;ubducts or conceales tho&s;e proofs that &s;hould uphold it, whereby for want of proof it comes to be overthrown; this &s;hall not prejudice the legataries; for they &s;hall notwith&s;tan|ding this Judgement thus by fraud obtained, be heard to main|tain and &s;et up this will again.<NOTE N="f" PLACE="marg"><HI>Lib. 14.</HI> Dig. de appellas.</NOTE> And as no man &s;hall be pre|judiced, &s;o none &s;hall reap any advantage by the fraudulent pra|cti&s;e of another neither, though he was no party nor actor in the fraud him&s;elf; <HI>Alterius circumventio alii non praebet actio|nem.</HI><NOTE N="g" PLACE="marg"><HI>Lib. 49.</HI> Dig. de reg. jur.</NOTE> One mans fraud &s;hall not create in another any right to &s;ue.</P>
<P>The Civil Law can as little endure that the true &s;ence and meaning of a Law &s;hould be de&s;troyed by a fraudulent interpre|tation that keeps the words, but perverts the end for which it is made: <HI>In fraudem legis facit, qui &s;alvis verbis legis, &s;ententi|am ejus circumvenit; fraus legis fit, ubi quod fieri noluit, fieri autem non vetuit, id fit.</HI><NOTE N="h" PLACE="marg"><HI>Lib. 29.30.</HI> Dig. de legib.</NOTE> He deales deceitfully with the Law, that tran&s;gre&s;&s;eth the true intent of it, though he does not tre|&s;pa&s;s again&s;t the formal and preci&s;e words. And therefore when the Law forbids a man to &s;ettle any more upon his Ba&s;tard, than what will barely keep him alive, it will not permit him to &s;ettle any &s;uperfluous e&s;tate upon any other per&s;on for that Be&s;tards u&s;e, or the Ba&s;tard to receive any &s;uch e&s;tate from his Parent by
<PB N="14" REF="15">another hand: <HI>Cum quid una via prohibetur alicui, ad id alia via non debet admitti:</HI> That<NOTE N="i" PLACE="marg">Reg. <HI>8<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">.</HI> de reg. jur. <HI>in 6.</HI></NOTE> which cannot lawfully be done one way, or directly, mu&s;t not be done indirectly, or by ano|ther.</P>
<P>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 intere&s;t and welfare of all people may be rightly &s;aid to be compri&s;ed: So it is not enough to provide in a general way for them neither; for it does not &s;uf|fice to declare by a Law, that neither the Life, Property, nor Li|berty of any Subject &s;hall be taken away, but by cour&s;e of Law, and a lawful trial fir&s;t had; nor to forbid calumnies and &s;landers; nor to command that the contracts and agreements of men &s;hall be mutually ob&s;erved: but a &s;pecial and mo&s;t vigilant care is to be had al&s;o, that all proceedings of ju&s;tice, when a &s;uit is brought concerning any of them, be an&s;werable to tho&s;e great intere&s;ts, 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 &s;o tender, that by bringing the Action, a mans right is rather improved than made wor&s;e: <HI>Neme in per&s;equendo deteriorem cau&s;am &s;ed meliorem facit:</HI><NOTE N="k" PLACE="marg">Lib. <HI><GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">7.</HI> Dig. de reg. jur.</NOTE> To try a mans right is rather an advantage than any preju|dice.</P>
<P>When therefore any of the&s;e rights be in que&s;tion, if the Law of a State be &s;o &s;hort and defective, as that a mi&s;chief may be done, and yet no remedy be found, or not a &s;ufficient one; or if a prejudicial act may pa&s;s again&s;t me, that may endanger my whole right in the end, and I not pre&s;ent thereat, nor called un|to it; or if I have not liberty to examine my adver&s;ary upon his oath, to &s;omething which will cleare the whole matter, and whereof I have no other te&s;timony but his own con&s;cience; or if I may not be admitted to make out the matter as well by violent and &s;trong pre&s;umtions, as by clear and manife&s;t proofs; or if the te&s;timony of one onely witne&s;&s;e be &s;ufficient in any mat|ter what&s;oever to ca&s;t and condemn me; or if where I cannot have my witne&s;s to the Bar through &s;ickne&s;s, or ab&s;ence be|yond the Seas, there be not &s;ome expedient allowed to have his te&s;timony upon his oath &s;ent to the Court where my trial is to
<PB N="15" REF="15">be; or if &s;uch ju&s;t exceptions as may take away, or at lea&s;t ex|tenuate the credit of the evidence brought again&s;t me, will not be allowed; or if the Ju&s;tice of a nation be too quick and over ha&s;ty in concluding upon the rights of men, before they can well prepare to defend them; or on the contrary, be too &s;low and te|dious, as not limit a time, when &s;uits &s;hall determine of them|&s;elves, if they be not judged before; or if one &s;entence &s;hall be &s;o final, that I may not appeale, nor bring my right to a triall any more: I &s;ay, where the&s;e proceedings, or &s;uch like be al|lowed and and practi&s;ed, what&s;oever is mo&s;t precious and of highe&s;t value among&s;t men, be it Life, Property, Good name, Liberty, right of Contracts, or what&s;oever el&s;e is flying to the &s;anctuary of the Law, it is &s;ubject to be de&s;troyed 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 tho&s;e Lawes that &s;hall judge them in the end, the mi&s;chief is all one. A State therefore that will &s;ufficiently pro|vide, for defence of their peoples rights, mu&s;t not onely take care that the Lawes that mu&s;t definitively over-rule and deter|mine them, be equal, ju&s;t, and rational, but the formes of trial mu&s;t be the &s;ame al&s;o, that the &s;ame &s;ecurity and ju&s;t dea|ling, which is the end of both, may be obtained.</P>
<P>And herein the <HI>Roman</HI> Civil Law has been more exact and careful than &s;ome other Lawes of the world have been; for there is nothing, of what nature &s;oever it be, but the Civil Law has or|dained a means to bring it to a di&s;cu&s;&s;ion and trial, either by giving a &s;pecial Action in the ca&s;e<NOTE N="l" PLACE="marg">Tot. Tit. In&s;t. de action.</NOTE>, or a general one<NOTE N="m" PLACE="marg">Dig: de prae|&s;cript. verb. &amp; in|fact. action.</NOTE>, relie|ving by ordinary remedies; or if tho&s;e fail, by &s;uch as are ex|traordinary<NOTE N="n" PLACE="marg">Tot. tit. Dig. &amp; lo. de in in|t<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">gr. re&s;. titu.</NOTE>, helping men <HI>jure actionis,</HI> or <HI>officio judicis,</HI> that is, by way of complaining in their owne name, or borrowing the name of the Magi&s;trate<NOTE N="o" PLACE="marg">Gl. in &s;. actic. In&s;t de Action, verb. quam jus.</NOTE> to make their complaints more ef|fectual, &s;o that one way or other a remedy may be had, what|&s;oever the evil be; nor does it &s;uffer any ju&s;t complaint to go away unremedied. And although it gives the highe&s;t authori|ty to Orders and Decrees of Court, yet it is &s;o tender of, and has &s;uch a heedful re&s;pect towards the Rights and Intere&s;ts of men, that whether a man be concerned alone in a cau&s;e, or whether others be concerned with him, it allowes of no Act,
<PB N="16" REF="16">Order, Decree, or Judgement, but again&s;t tho&s;e onely, that were fir&s;t call'd to &s;ee it done. And therefore every judiciall act done without warning given, is accounted &s;urreptitious, and declared void and null<NOTE N="p" PLACE="marg">Marant &s;pec. part <HI>4.</HI> Di&s;tinct. num. <HI>10.</HI></NOTE>. The effect of which nullity is, that as to him that was ab&s;ent and not heard, the Cau&s;e is to begin a|gaine; <HI>Judicatum tantum inter prae&s;entes tenet,</HI> &s;ayes<NOTE N="q" PLACE="marg">Lib. <HI>47</HI> dig. de re Judic.</NOTE> <HI>Paulus;</HI> Tho&s;e that are in Court onely, are bound by that which is de|creed.</P>
<P>Neither &s;hall a man lo&s;e his right for want of witne&s;&s;es to prove it, for if the matter was tran&s;acted between him and his adver&s;ary onely, &s;o that his adver&s;ary being brought upon his Oath, mu&s;t need confe&s;&s;e the whole matter; the Law will en|joyn a man to an&s;wer, though again&s;t him&s;elf, and to his own prejudice, rather then that the truth &s;hall &s;uffer, and wrong &s;hall prevaile. I may take the &s;ame advantage al&s;o, if my wit|ne&s;&s;es live afar off, or that I would avoid the trouble and charge of examining them, or that my adver&s;ary will confe&s;&s;e more to my benefit, then my witne&s;&s;es will be able to prove. And he that is ca&s;t by his own confe&s;&s;ion, is more powerfully condemned, then he can be by any kind of evidence what&s;oe|ver;<NOTE N="r" PLACE="marg"><HI>Confe&s;sio e&s;t probatro proba|ta; Neque ullae est probatio illa major.</HI> l. 1. Dig. De confe&s;&s;. Vulteii Ju i&s;p. Roman. lib. 2. cap. 2.</NOTE> for that cannot be &s;ubject either to mi&s;take or fal&s;hood, as other te&s;timony may be.</P>
<P>But witne&s;&s;es are then of u&s;e, if he denies what I charge upon him. Who if they be farre di&s;tant, or through Sckne&s;&s;e, Im|pri&s;onment, or other occa&s;ions be not able to come, the Law hath a ready way to relieve me, for I may have a commi&s;&s;ion to examine them where they live. It were too great an oppre&s;&s;ion that I mu&s;t lo&s;e my right, becau&s;e my witne&s;&s;es cannot be brought to the Barre. In&s;omuch as if they be travailed into forreign parts, I &s;hall have Letters of Reque&s;t granted me to the Magi&s;trates of the place where they remain, praying them to examine them upon the matter in i&s;&s;ue, and to tran&s;mit their te&s;timony; el&s;e regularly by the <HI>Civil Law,</HI> they are to be ex|amined in open Court, that it may be &s;een whether their coun|tenance does not contradict what their tongues declare<NOTE N="&s;" PLACE="marg">Lib. <HI>3.</HI> Sect. <HI>3.</HI> dig. de Te&s;t. &amp; Gothofred ibid.</NOTE>.</P>
<P>Neither does the <HI>Civil Law</HI> require direct and po&s;itive proofs onely, but it will admit of &s;trong and forcible pre&s;umptions al|&s;o, that by arguments of conjecture drawn from one thing to
<PB N="17" REF="16">another, brings forth the certainty of the thing in i&s;&s;ue. <HI>Par e&s;t probationi prae&s;umptio, quod quidem ad effectum attinet, quiae pro probatione habetur,</HI> &s;ayes<NOTE N="t" PLACE="marg">P<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">rat. Dig. de prob. &amp; prae|&s;umpt. num. <HI>14.</HI></NOTE> <HI>We&s;enbeck;</HI> Pre&s;umptions are equi|valent to proofes, and there is the &s;ame effect in both. And if a pre&s;umptive proof were not as effectual to carry the right, as any other kinde of evidence; in vaine did <HI>Menochius</HI> be&s;tow his paines, when he made that very long and mo&s;t elaborate Treati&s;e of that &s;ubject onely.</P>
<P>But yet no proof, whether it be pre&s;umptive onely, or whe|ther it be direct and evident to the thing it &s;elfe, is &s;ufficient, ex|cept it be made out by the te&s;timony of two witne&s;&s;es: for by that Law, <HI>Te&s;timonium unius e&s;t te&s;timonium nullius;</HI> One wit|ne&s;&s;e and no witne&s;&s;e at all is all alike. And &s;o <HI>Con&s;tantine</HI> the Emperour hath very emphatically declared in the&s;e words: <HI>Ma|nife&s;t&egrave; &s;ancimus, ut unius omnino te&s;tis re&s;pon&s;io non audiatur, eti|am&s;i praeclarae curiae honore praefulgeat</HI><NOTE N="u" PLACE="marg">L. <HI>9.</HI> Colde Te&s;t.</NOTE>: We expre&s;ly require, that the te&s;timony of one witne&s;&s;e be not taken, although he hath the &s;tamp of highe&s;t dignity upon him, for it were hard and dangerous, that a mans whole right and intere&s;t of what value &s;oever it be, &s;hould depend upon the te&s;timony of a &s;ingle per&s;on onely, who, if he be hone&s;t and &s;incere, yet through want of good ob&s;ervation, or by a failing memory, may report the matter of fact otherwi&s;e then indeed it was. Yet in matters of &s;mall prejudice and value; the <HI>Civil Law</HI> does allow of the te&s;timony of one witne&s;&s;e, if the Plaintiffe him&s;elf can &s;wear, the thing in demand is true; for in that ca&s;e, his a|verring upon Oath as much as his witne&s;&s;e hath &s;worne, doth &s;upply the te&s;timony of another wine&s;&s;e<NOTE N="x" PLACE="marg">Mincing. cent. <HI>1.</HI> ob&s;erv. <HI>68.</HI></NOTE>.</P>
<P>Howbeit the <HI>Civil Law</HI> hath a further care yet, for before it will &s;uffer any mans right to be judg'd away from him, it will &s;ee not onely a competent number of witne&s;&s;es, but they mu&s;t &s;wear of their knowledge too:<NOTE N="y" PLACE="marg">L. Ne&abque; Nata|les Co. de Prob.</NOTE> and it does ca&s;t a very con|&s;iderate eye upon their reputation and quality al&s;o. It gives way therefore to the proving of any remarkable exceptions that can be brought again&s;t them. <HI>Te&s;tium fides,</HI> &s;ayes <HI>Calli|&s;tratus, diligenter examinanda e&s;t: Ideoque in per&s;ona eorum ex|ploranda erunt inprimis conditio cuju&s;que; utrum quis decurio, an plebeius &s;it; &amp; an hone&s;tae &amp; inculpata vitae, aen vero notatus quis
<PB N="18" REF="17">&amp; reprehen&s;ibilis; an locuples vel egens &s;it, ut lucri cau&s;a quid facil&egrave; admittat; vel an inimicus ei &s;it, adver&s;us quem te&s;timoni|um fert, vel amicus ei &s;it pro quo te&s;timonium dat. Nam &s;i careat &s;uspicione te&s;timonium, vel propter per&s;onam &agrave; quae fertur, qu&ograve;d hone&s;ta &s;it, vel propter cau&s;am, qu&ograve;d neque lucri, neque gratiae, neque inim<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">citiae cau&s;a &s;it, admittendus e&s;t.</HI><NOTE N="z" PLACE="marg">Lib <HI>3.</HI> Dig. de Te&s;t.</NOTE> The &s;incerity of witne&s;&s;es is &s;trictly to be enquired after. Therefore as to their per&s;ons, the condition of every witne&s;&s;e mu&s;t be examined, whe|he be a Magi&s;trate, or a common per&s;on, whether he be of good and unblameable life, or whether he lye open to ju&s;t reproof, or hath been any way a&s;per&s;ed; whether he be able or nece&s;&s;itous, &s;o that he may be tempted to tran&s;gre&s;&s;e for filthy lucres &s;ake; whether he be an enemy to him again&s;t whom he comes to te|&s;tifie, or whether he be gracious with him who&s;e witne&s;&s;e he is to be, for if his te&s;timony be void of all &s;u&s;pition, either in re|gard of his per&s;on, as that he is hone&s;t, or in regard of the cau&s;e, as that there is neither gain, nor affection, nor enmity to cor|rupt him, he is to be allowed.</P>
<P>Moreover, it leaves a Latitude to every Court of Judicature, to give &s;uch a time both to Plaintiffe and Defendant to prove, as the di&s;tance of place from whence the proof is to be brought, does nece&s;&s;arily require. Neither does it exact, that Plaintiffe and Defendant &s;hould prove within one and the &s;ame time, but the defendant begins to prove his Defeuce, after the Plaintiffs proof is ended<NOTE N="a" PLACE="marg">Speculat. de re&s;t. &s;ect. qua|liser, num. <HI>20.</HI></NOTE>. When both have done, the Judge is to con|clude the cau&s;e, by which all further proof is excluded, &s;o that the next &s;tep is to judge and pronounce finally upon the whole matter. And although the <HI>Roman Empire</HI> was the large&s;t and mo&s;t extended that ever was, and the multitude of cau&s;es mu&s;t be &s;uppo&s;ed to be great too, yet no Civill cau&s;e what&s;oever, was to la&s;t and continue longer then by the &s;pace of three years, nor any criminall matter could be pro&s;ecuted again&s;t any per&s;on, af|ter two years time ended; &s;o that all the proceedings that &s;hould follow, and be made after &s;uch time ended, was ab&s;olutely null and void<NOTE N="b" PLACE="marg">Lib. <HI>13.</HI> Go. de Judis.</NOTE>.</P>
<P>La&s;tly, &s;o carefull it is to pre&s;erve and uphold the rights of men, that it does not make any &s;ingle judgement to be ab&s;o|lutely conclu&s;ive and finall, if he that is ca&s;t, be de&s;irous to
<PB N="19" REF="17">bring his cau&s;e to be tryed again by another Tribunall. So much more fitting is it, that the &s;entence of any Judge &s;hould be impeached and overthrown, then that truth &s;hould &s;uffer, or any mans right &s;hould be injuriou&s;ly taken away. Within ten dayes therefore after &s;entence given, he that is condemned may by appealing to the next &s;uperiour Judge, complain thereof; and upon &s;ufficient error a&s;&s;igned, or upon &s;ome further proof made then was before, he may procure the fir&s;t &s;entence to be quite re|ver&s;ed, or at lea&s;t reformed: for the end of an Appeale is, <HI>&V;t aut iniquitatem, aut imperitiam judicis corrigat</HI><NOTE N="c" PLACE="marg">Lib. <HI>1.</HI> dig. de appellat.</NOTE>; To rectifie either inju&s;tice or errour.</P>
<P>The&s;e few in&s;tances (for they are intended for no more, and thereby to take a conjecture of the re&s;t al&s;o) may &s;uffice to &s;hew, that as the &s;afety of the peoples rights, is the generall end and intention of the <HI>Civill Law,</HI> &s;o it does di&s;po&s;e and qualifie all its con&s;titutions, and particularly the formes of triall and judiciall proceedings to the &s;elf-&s;ame end and purpo&s;e, and it does con&s;tantly hold and pro&s;ecute the &s;ame cour&s;e in other matters. For if the <HI>Civil Law</HI> be rightly under&s;tood, it will ap|peare, that they gro&s;ly erre, who thinke, that though by the <HI>Civil Law,</HI> property is &s;ufficiently enough maintained again&s;t common men, yet that the Prince or Soveraign has a loo&s;er power given him thereby, then other Lawes will allow, to command or di&s;po&s;e thereof at plea&s;ure, becau&s;e it is a rule in that Law, that <HI>Quod Principi placuit legis habet rigorem</HI><NOTE N="d" PLACE="marg">Lib. <HI>1.</HI> dig. de Con&s;tit. Princi. &s;ect. <HI>6.</HI> In&s;t. de Jur. Nat. Gent. &amp; Civil.</NOTE>; What plea&s;es the Prince, has the force of a Law: and <HI>Princeps legibus &s;olutus e&s;t</HI><NOTE N="e" PLACE="marg">Lib. <HI>31.</HI> Dig. de Legib. Novel. <HI>105.</HI> c. <HI>2.</HI></NOTE>; A Prince is not tyed to Lawes. Which being literally under&s;tood, and not taken in that faire and mo|derate &s;en&s;e, which by the cour&s;e of the whole Law, and by the current of Interpreters it is expounded in, does import, as if Property, Life, Liberty, and all, were &s;ubject, and did hold of the Princes will.</P>
<P>But that this cannot be the meaning, is mo&s;t evident, for that his meer Lu&s;t or appetite, or every inordinate command that goes forth from him &s;hould be a Law, is not &s;o believed, that the <HI>Civil Law</HI> ever intended. But when the <HI>Roman State</HI> was now changed from being a popular State, and was become an ab&s;olute Empire, and that the people had conferred their whole
<PB N="20" REF="18">power, that was in them&s;elves before, upon <HI>Augu&s;tus Cae&s;ar</HI> (in who&s;e time it was that the Royal Law was made) and his &s;ucce&s;&s;ors, it was meant by tho&s;e words, that the Legi&s;lative po|wer &s;hould wholly re&s;t in him, without the concurrence of any other, and that thenceforward the Laws &s;hould come from him, and be as ob&s;equiou&s;ly obeyed, as if they came from the whole people; but yet &s;o, that they &s;hould not be repugnant to the Lawes of Nature, the common dictates of Rea&s;on, or mi&s;chievous to the publick welfare.</P>
<P>And therefore &s;ayes <HI>Harprechtus,</HI><NOTE N="f" PLACE="marg">D. &s;ect. <HI>6.</HI> In&s;t. cod.</NOTE> <HI>Verbum plicendi, aut Pla|citi, non volupt itis, non libidinis, non etiam ab&s;olu'ae e&s;t voluntatis; &s;od ju&s;titiae, rationis, &amp; con&s;ilii.</HI> The word <HI>Plea&s;es</HI> or <HI>Plea&s;ure,</HI> does not denote Ryot, Lu&s;t, or ab&s;olute Will; but Ju&s;tice, Rea&s;on, and good con&s;ideration: &s;o that though the plea&s;ure of a Soveraign, whil&s;t he publi&s;hes any thing for a Law, is bind|ing and to be obeyed, becau&s;e a Law can come from none but him, where the nature of the government is &s;uch: Yet it mu&s;t be equall, ju&s;t, hone&s;t, and profitable<NOTE N="g" PLACE="marg">Ha<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">precht. Inst. de rer. d<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">v. <GAP DESC="illegible" RESP="UOM" EXTENT="1 word"> p inc <GAP DESC="illegible" RESP="UOM" EXTENT="1 word"> <HI>130.</HI></NOTE>. And what does a So|veraign more in this, then all other &s;orts of Governors what&s;o|ever, be they more then one, as in an optimacy; or be the go|vernment in the whole people? or what more power is given in this by the <HI>Civil Law,</HI> to an ab&s;olute Soveraign, which is not by other Laws given to the &s;upreme &amp; highe&s;t rules of any Nation?</P>
<P>Again, all Laws in the world do allow tho&s;e, that have the Su|preme Power in them, to take away Liberty by Impri&s;onment, where there is any publick danger by Freedom, or where it may be a ju&s;t puni&s;hment for contempt and di&s;obedience, and to take away life too for capitall offences committed: and where pub|lick defence calls for it, to command their very Subjects per&s;ons and e&s;tates to &s;uch a proportion, as the pre&s;ent nece&s;&s;ities re|quire; for without this power no community can long endure, nor any peace be pre&s;erved. And more then this, nor in any other ca&s;es does the <HI>Civil Law</HI> grant a &s;overaigne licence to touch either property, life, or liberty<NOTE N="h" PLACE="marg">Harpretcht. loc. titat. nu. <HI>95.</HI></NOTE>.</P>
<P>And where the <HI>Civil Law</HI> hath declared, that a Prince is ex|empt from Lawes, the meaning is not, that he may violate and trample upon them as him&s;elf lifteth, as oft as they &s;tand in his way, for that is contradicted expre&s;ly by divers Texts of
<PB N="21" REF="18">the Civil Law:<NOTE N="b" PLACE="marg">L. <HI>4</HI> co. de legib. l. <HI>23.</HI> de D<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">g. legat. <HI>3.</HI></NOTE> but that he is not puni&s;hable, when he breaks them, becau&s;e he has no humane Superiour to judge or que&s;tion him, or to exact obedience from him; that in &s;ome ca&s;es he may give licen&s;e to his &s;ubjects not to ob&s;erve &s;ome certain of them, by way of di&s;pen&s;ation; that be may grant pardons to &s;ome that have tran&s;gre&s;&s;ed them, where the nature of the fact will bear it; and that he may al&s;o quite aboli&s;h them when they are growne u&s;ele&s;s or hurtful.<NOTE N="k" PLACE="marg">Harprecht. loc. citat. <HI>nu. 120.</HI></NOTE> And under what Law or Go|vernment is it, where all the&s;e things are not cleare without any di&s;pute, and held lawful, and continually done?</P>
<P>And generally in all in&s;tances of the Civil Law, as well as in tho&s;e whereof mention is made before, it may be ob&s;erved, that the imperial Law does not onely ratifie and confirm the gene|ral Lawes of Nature and of Nations, but takes care al&s;o to re|duce all its con&s;titutions that might be any way in&s;trumental to the di&s;tribution of ju&s;tice in particular ca&s;es, how remote &s;oe|ver they be from the prime and chief principles, to a perfect con|formity with them; and &s;o ought the Law of every State to do; for that is the true way to make it rational throughout, &amp; to keep it from being contradictory to it &s;elfe. And that particular Law that makes the lea&s;t deflections from nature and the common rea&s;on of man, and who&s;e Acts and Edicts carry mo&s;t of that evidence and demon&s;tration along with them (as doubtle&s;s &s;ome Lawes carry more, and others le&s;&s;e, as the wi&s;dome of tho&s;e that made them was greater or le&s;&s;er) that Law, I &s;ay, mu&s;t needs be the mo&s;t rational, and thereby the be&s;t and perfecte&s;t Law of all other.</P>
</DIV2>
<DIV2 N="2" TYPE="chapter">
<PB N="22" REF="19">
<HEAD>CHAP. II.</HEAD>
<ARGUMENT>
<P>That what Rea&s;on teacheth &s;hould be made the &s;ubject of a Law, is no &s;uperfluous, but a profitable thing.</P>
</ARGUMENT>
<P>IT is not any hard matter to give the rea&s;on, why the princi|ples of Right and Ju&s;tice, and the duties of a civil life, that are already ingraven by nature in the heart of man, &s;hould not|with&s;tanding be further declared and made known by a Law. For,</P>
<P>Fir&s;t, though &s;ome principles of rea&s;on be in them&s;elves &s;o apparent, that they need no illu&s;tration, yet there be others more &s;ecret, and more remote from the under&s;tanding, than that they can be di&s;cerned by every mans pre&s;ent conceit, without &s;ome deeper di&s;cour&s;e and judgement. In which di&s;cour&s;e, be|cau&s;e there is difficulty and po&s;&s;ibility many wayes to erre, un|le&s;&s;e &s;uch things were &s;et down by Lawes, many would be igno|rant of their duties, which now are not; and many that know what they &s;hould do, would neverthele&s;s di&s;&s;emble it, and to excu&s;e them&s;elves pretend ignorance and &s;implicity, which now they cannot.<NOTE N="a" PLACE="marg">Tamei&s;e nulla perturbatione judices ab aequitate dimoverentur, nihilominus tamen legibus opus e&s;t, quibus vel uti lucerna quadam, vel imperiti in<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> den&s;i&s;&s;imis humanarum actionum tenebris dirigantur, vel &s;celerati metu paenarum terre|antur. <HI>Bodin. de rep. l. 6. c 6.</HI></NOTE></P>
<P>That a Ship and Goods ca&s;t away at Sea by tempe&s;t, if they be driven to Land, &s;hall accrue to the publique Exchecquer, and the di&s;tre&s;&s;ed owners &s;hall not by any claim recover them; &s;ome will not believe it to be barbarous and mo&s;t unnatural; for it is practi&s;ed by &s;ome nations,<NOTE N="b" PLACE="marg">Sic vivitur, ut qui portus habent, cam ciu|delitatem tum; in cives, tum in peregrinos exe|quantur. Jus quaeris? Errori|us facit. <HI>Bodin. de rep. l. 1. c 10.</HI></NOTE> and defended by divers learned men. And yet a very Heathen by in&s;tinct of nature, could cry out, <HI>Ab&s;it O Jupiter, ut lucrum captemus tale ex ho|minum infortunio; Jove</HI> forbid that we &s;hould draw &s;uch lucre from mans di&s;tre&s;&s;es: And therefore <HI>Con&s;tantine</HI> the Emperour did by a Law e&s;tabli&s;h this dictate of Nature and Rea&s;on, and re&s;tored them to the owners, and charged his Exchecquer-men
<PB N="23" REF="19">not to meddle with them. <HI>Quod enim,</HI> &s;aith he,<NOTE N="c" PLACE="marg">Lib. <HI>1.</HI> co. de Naufrag.</NOTE> <HI>jus habet fi|&s;eusin aliena calamitate, ut de re tam luctuo&s;a compendium &s;e|ctetur?</HI> What right can anothers calamity be&s;tow upon the publick trea&s;ury, that it &s;hould reap benefit from a &s;ad di&s;a&s;ter?</P>
<P>Secondly, Fal&s;hood doth &s;o &s;eck to cloath it &s;elf with the &s;imi|litude and appearance of truth, that none of the ordinary &s;ort of men, and not all of the be&s;t rank neither, can di&s;cover or di&s;tingui&s;h true and &s;olid rea&s;on from that which is fal&s;e and counterfeit. When therefore our own natural in&s;tinct &amp; inbred knowledge beares witne&s;&s;e to any thing, &amp; we have the warrant and allowance of the Law for it be&s;ides, no fal&s;e colours or &s;em|blances of rea&s;on can deceive us: for what the wi&s;dome and experience of a Nation has agreed and declared to be ju&s;t and convenient, and our hearts do own and allow to be &s;o, that un|que&s;tionably carries it in the greate&s;t evidence and certainty of true and pure rea&s;on, that mortal men can attain to in things of humane and civil intercour&s;e.</P>
<P>Thirdly, the Lawes of Rea&s;on, which, Man retaining his ori|ginal integrity, had been &s;ufficient to direct each particular per&s;on in all his affaires and duties, are not of them&s;elves &s;uffici|ent, but do require the acce&s;&s;e of other Lawe, now that Man and his off-&s;pring are grown thus corrupt and &s;inful. And be|cau&s;e the greate&s;t part of men are &s;uch as prefer their own pri|vate good before all things, even that good which is &s;en&s;ual, be|fore what&s;oever is mo&s;t Divine: and for that the labour or do|ing good, together with the plea&s;ure ari&s;ing from the contrary, doth make men for the mo&s;t part &s;lower to the one, and pro|ner to the other; therefore unto Lawes it hath &s;eemed alwayes needful to adde rewards, which more allure unto good then any hardne&s;&s;e deterreth from it; and puni&s;hments which may more deter from evil, than any &s;weetne&s;&s;e thereto allureth, wherein as the generality and &s;ub&s;tance is natural, Vertue rewardable, and Vice puni&s;hable; &s;o the particular determination of the reward or puni&s;hment, and all other circum&s;tances is the pro|per act of the Law.</P>
<P>Fourthly, when men are rebuked for acting contrary to the Law of Nature, and the Light of Rea&s;on, what one among&s;t them commonly doth not &s;tomack at &s;uch contradiction, &s;torm
<PB N="24" REF="20">at reproof, and hate &s;uch as would reform them. Notwith&s;tan|ding even they which brook it wor&s;t, that men &s;hould tell them of their duties, when they are told the &s;ame by a Law, think very well and rea&s;onably of it. Becau&s;e they pre&s;ume that the Law doth &s;peak with all indifferency; that the Law hath no &s;ide|re&s;pect to their per&s;ons; that the Law is as it were an Oracle pro|ceeded from wi&s;dome and under&s;tanding.</P>
<P>Thus we &s;ee, that what Rea&s;on it &s;elf pre&s;cribeth, may in &s;un|dry con&s;iderations be expedient to be ratified by a humane Law, and indeed that a humane Law ought in &s;ub&s;tance to hold forth nothing which Rea&s;on allowes not of.</P>
</DIV2>
<DIV2 N="3" TYPE="chapter">
<HEAD>CHAP. III.</HEAD>
<ARGUMENT>
<P>What is here meant and intended by Rea&s;on?</P>
</ARGUMENT>
<P>BUt le&s;t there &s;hould be any mi&s;take touching the nece&s;&s;ary quality of Rea&s;on, which we &s;o &s;tictly require in a Law, it is but needful that we &s;hould explain what we intend by Rea&s;on. For certainly there is not a more deceitful thing than Rea&s;on; it being made u&s;e of frequently by fal&s;e &s;hews and colours to beautifie the foule&s;t and mo&s;t deformed things, and is grown to be the common glo&s;s that every evil does varni&s;h and deck it &s;elf withall: al&s;o it is &s;uch a faculty, that tho&s;e that are parta|kers of it in the meane&s;t mea&s;ure, do infinitely extoll and ad|mire what they apprehend to be rea&s;onable, though to a right judgement it be nothing &s;o; and what they have not under|&s;tanding enough to conceive through their own natural weak|ne&s;s, they do as much di&s;dain and condemn, how judicious and &s;olid &s;oever it be. Although therefore the plainer a Law is, and the more obvious to the under&s;tanding of tho&s;e that are to be guided by it, the better and the more commendable that Law mu&s;t 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 under&s;tand and approve of. For,</P>
<PB N="25" REF="20">
<P>We cannot admit that the capacities of common men are &s;ufficient to judge of Lawes, which may be rational enough, though the rea&s;on of them be not &s;een to them: yet the main principles of rea&s;on are in them&s;elves apparent, and di&s;cernable by every eye, and it is not ea&s;ie to finde men ignorant of them; and therefore a Law that is contrary to tho&s;e common princi|ples, is to be abhorred. But be&s;ides tho&s;e that are univer&s;ally received and agreed on, there are other principles which are not in them&s;elves &s;o evident, but are deduction and inferences from the fir&s;t; and which learned and very under&s;tanding men onely are capable by much di&s;cour&s;e and rea&s;oning to appre|hend. And here be&s;ides good natural faculties, and ripe ne&s;&s;e of years, there mu&s;t be added the right helps of true Art and Learning; &s;ince Education and In&s;truction are the means, the one by u&s;e, the other by precept, to make our natural faculty of Rea&s;on both the better and the &s;ooner 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 fitne&s;s to di&s;cern, whether the Law of a Nation be conformable to right Rea&s;on or not; but it mu&s;t be either all Learning and Know|ledge joyned together, or that proper legal knowledge, which is <HI>Ars aequi &amp; boni, ju&s;ti atque inju&s;ti Scientia,</HI> the art of Equity &amp; a good Con&s;cience, the knowledge of Right &amp; Wrong. Further, the Judgement is not yet come to a full degree of perfectne&s;s, nor competent enongh, except it be fortified with a practical Knowledge too, and with a Wi&s;dome ari&s;ing from Experience and Ob&s;ervation; for he that will undertake to judge whether a Law be agreeable to natural Equity and good Rea&s;on, he mu&s;t not take his e&s;timate from the matter of the Law one|ly, but he mu&s;t con&s;ider divers other circum&s;tances be|&s;ides. For,</P>
<P>Fir&s;t. He mu&s;t &s;ee into the Nature, Manners, and Inclinations of the People: for the end of all Law being but to pre&s;erve the Publick Peace, and to keep the people in good order<NOTE N="d" PLACE="marg">Salus populi &s;uprema ltx e&s;t.</NOTE>, that Law mu&s;t needs be be&s;t and mo&s;t rational, which does &s;oone&s;t produce that end. And therefore con&s;idering that men, even by the very climate they live under, are made to differ &s;o mainly in every thing, Body, Soul, Religion, and Manners, from the
<PB N="26" REF="21">&s;trange variety of Lawes, which we &s;ee and read of throughout the world, we cannot pre&s;ently conclude any of them to be un|rea&s;onable.</P>
<P>A Law<NOTE N="e" PLACE="marg">Ari&s;tot. Poll|tic.</NOTE> there is mentioned among&s;t the <HI>Graecians,</HI> whereof <HI>Pittacus</HI> is reported to have been the Author; by which it was agreed, that he which being overcome with drink, did then &s;trike any man, &s;hould &s;uffer puni&s;hment double as much as if he had done the &s;ame being &s;ober. No man could ever have thought this rea&s;onable,<NOTE N="f" PLACE="marg"><HI>Ebrius &s;i de|lictum commi&s;e|rit, clement &ugrave;s e&s;t puniendus.</HI> Menoc. ca&s; 326 l. 2. de Arbier. Judic. nu. 1.</NOTE> that had intended thereby onely to puni&s;h the injury committed, according to the gravity of the fact; for who knoweth not that harm advi&s;edly done, is natu|rally le&s;s pardonable, and therefore worthy of &s;harper puni&s;h|ment? But fora&s;much as none did &s;o u&s;ually offend this way as men in that ca&s;e, which they wittingly fell into, even becau&s;e they would be &s;o much the more freely outragious; it was for their publick good where &s;uch di&s;order was grown, to frame a po&s;itive Law or Remedy thereof accordingly. And there|fore in that place that was a mo&s;t rational and a ju&s;t Law.</P>
<P>A ju&s;tification whereof we may finde in the Roman Law it &s;elf; <HI>Nonnunquam evenit,</HI> &s;ayes <HI>Saturninus,</HI><NOTE N="g" PLACE="marg"><HI>L. 16.</HI> dig. de poen. perag. <HI>10.</HI></NOTE> <HI>ut aliquorum ma|lificiorum &s;uppliciae exacerbentur, quoties nimium multis per&s;onis gra&s;&s;antibus exemplo opus &s;it;</HI> It &s;ometimes comes to pa&s;s, that &s;ome certain offences are the more &s;harply cha&s;ti&s;ed, when of|fenders therein grow &s;o numerous, as that it is nece&s;&s;ary to make them exemplary; for which &s;everity the Law-givers are no way cen&s;urable, but the wicked inclinations of men are to be taxed, which have enforced it from them. Our Saviour him|&s;elf did excu&s;e <HI>Mo&s;es,</HI> for &s;uffering the <HI>Jewes</HI> to put away their wives for le&s;&s;er cau&s;es than for Adultery, becau&s;e of the hard|ne&s;s of their hearts, though <HI>from the beginning it was not &s;o</HI><NOTE N="h" PLACE="marg">Matth. 19.</NOTE>, that is, though it was not agreeable to nature, nor to the pra|cti&s;e that had alwayes been. It being the le&s;&s;er evil to di&s;mi&s;s them fairly, than to pro&s;ecute them with continual hatred, out of which greater evils might en&s;ue, to which he knew the <HI>Jewes</HI> (&s;uch was the malignity of their nature) might &s;oon be tem|pted. Likewi&s;e it is not void of rea&s;on neither, that the &s;ame faule &s;hould be puni&s;hed with greater &s;everity in one State, where the opportunities of committing it are greater, the incli|nations
<PB N="27" REF="21">of the people more prone to offend therein, and the prejudice thence ari&s;ing is more con&s;iderable than in another where it is not &s;o, <HI>Evenit,</HI> &s;ayes the &s;ame <HI>Saturninus,</HI><NOTE N="i" PLACE="marg">D.l. <HI>16.</HI> par. <HI>9.</HI></NOTE> <HI>ut ea|dem &s;celera in quibu&s;dam provin<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">iis gravius plectantur, ut in Africa me&s;&s;ium incen&s;ores; in My&s;ia vitium; ubi metalla &s;unt, adulteratores monetae:</HI> It happens that the &s;ame foul actions are more heavily puni&s;hed in certain Provinces, as tho&s;e that &s;et fire on Corn in <HI>Africa,</HI> on Vines in <HI>My&s;ia;</HI> and corrupters of currant Money, where it is of Mettal. Neither is it any inju|&s;tice or cruelty thus to vary: <HI>Non statim debet videri tyrannis, &s;iquid gravius aut remi&s;&s;ius publicae nece&s;&s;itatis cau&s;a in Legibus &s;tatuitur; nam &s;ine tali injuria respublicae non po&s;&s;unt regi,</HI> &s;ayes <HI>Conradus Lagus;</HI><NOTE N="k" PLACE="marg"><HI>Method. jur. civ.</HI> part. 1. c. 4. nu. 7.</NOTE> It ought not to be looked upon as tyranny, if at any time the hand of the Law be &s;ometimes heavier, and &s;ometimes lighter, as publick nece&s;&s;ities &s;hall command; for without &s;uch inequality of mea&s;ure, 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 puni&s;h offences that are pa&s;t, and to &s;up|pre&s;s them for the future, is &s;till ob&s;erved; onely it being ac|commodated to &s;everal nations which are various and differing, it cannot po&s;&s;ibly be executed by the &s;ame coertion or penal|ties, nor in one and the &s;ame manner.</P>
<P>Secondly, the form and kind of Goverment mu&s;t be re&s;pected al&s;o; for &s;ome Laws may be judged very good and fitting for a Monarchy, which cannot be &s;o accounted of in a Government by a few, or by the whole people, or in &s;uch a one as is mixed, and made up out of them all.</P>
<P>Thirdly, when a Ju&s;tice of the Law is doubted, it mu&s;t be exa|mined, what urgency of affairs there was at that time when the Law was made, and whether &s;ome nece&s;&s;ity and great rea&s;on of State did not enforce it. For tho&s;e that guide the &s;tern do &s;ee tho&s;e lets and difficulties in pre&s;erving the whole, which others cannot di&s;cern; and therefore it is no marvel if &s;uch Lawes be enacted &s;ometimes, for which no rea&s;on can be rendred. <HI>Non emnium quae &agrave; majoribus con&s;tituta &s;unt, ratio redda potest;</HI><NOTE N="l" PLACE="marg"><HI>L. 20.</HI> dig. de legib.</NOTE> A rea&s;on cannot be given for every thing that our Ance&s;tors have e&s;tabli&s;hed for a Law.</P>
<PB N="28" REF="22">
<P>Fourthly, A Law that may be mi&s;chievous to divers particu|lar per&s;ons, though otherwi&s;e very innocent, mu&s;t not there|fore be pre&s;ently condemned as unrea&s;onable, &s;o that it be con|venient and profitable for the publick welfare. <HI>Jura non in &s;in|gulas per&s;onas, &s;ed generaliter con&s;tituuntur,</HI><NOTE N="m" PLACE="marg"><HI>L. 8.</HI> Dig. de legib.</NOTE> Lawes are or|dained for the generalities &s;ake, &amp; not to provide for each indi|vidual per&s;on, who&s;e particular intere&s;t mu&s;t &s;uffer, rather than the whole &s;ociety be brought into jeopardy.<NOTE N="n" PLACE="marg">Livius l. <HI>4.</HI> de. bello Macedon. &amp; l. <HI>11.</HI> dig de ju&s;t. &amp; jur.</NOTE> A particular mi&s;-chief is better than a general inconvenience. <HI>Nulla lex &s;atis commoda e&s;t omnibus; id tant&ugrave;m quaeritur, an pluribus, &amp; in &s;um|ma an pro&s;it;</HI> No Law is every way beneficial unto all; that onely is enquired into, whether it be generally profitable, and to the mo&s;t.</P>
<P>Fifthly, A Nationall Law that is generally and in mo&s;t of its dictates and principles very ju&s;t and equitable, and univer&s;ally &s;o acknowledg'd by the wi&s;e&s;t and mo&s;t judicious men and Na|tions, is not to be cen&s;ured for &s;ome few particular con&s;tituti|ons, which may &s;eem hard and rigorous, or whereof the Ju&s;tice, Equity, or Rea&s;on, is not &s;o evident; for this enterpri&s;e of ma|king Lawes is the weightie&s;t thing which any man can take upon him. And where a multitude of Laws comes to be made by men (the be&s;t of whom are &s;ubject unto errors) and for ca&s;es of infi|nite number &amp; wonderful variety, &s;ome few deviations, if any be, may be excu&s;ed. It may well &s;uffice that the Body is fair, and the Specks but few.</P>
<P>Sixthly, we can by no meanes allow of their way of judging, who are ready to mea&s;ure the goodne&s;&s;e of Lawes by the cor|rupt and evill practi&s;es of tho&s;e that are in&s;trumental to admini|&s;ter them. Neither are Lawes to be judged &s;uch as their execu|tion is. Can a fountaine be judged the wor&s;e, becau&s;e it is &s;o unhappy as to run through a foule and &s;limy channell? or a cha&s;t Matron traduced, becau&s;e violence has polluted her? &s;o neither can the Law be ju&s;tly charged with the exorbitancies of men, which it &s;elf condemns, and was purpo&s;ely made to revenge and puni&s;h them; and would do &s;o too, if violence, power, and fraud did not ob&s;truct its cour&s;e.</P>
<P>Seventhly, we can as little e&s;teem tho&s;e competent and fitting Judges of a Law, that are &s;o forward to a&s;per&s;e and make it in|famous,
<PB N="29" REF="22">becau&s;e by ancient in&s;titution it was once mini&s;terial, and attended upon a power and function which they ever di&s;e|&s;teemed, and have lately &s;een aboli&s;hed.</P>
<P>Upon this ground and no other that can be imagined, have divers uttered their bitter and contumelious invectives again&s;t the <HI>Roman Civil Law,</HI> having been helpfull in the exerci&s;e of the Eccle&s;ia&s;tical juri&s;diction of this Nation: which becau&s;e they &s;ee eradicated and quite taken away, they judge the other quite u&s;ele&s;&s;e, and therefore in their conceit ought not to be kept or continued here any longer.</P>
<P>In which argument were there any &s;trength of Rea&s;on, it might be more &s;trongly enforc'd again&s;t the <HI>Commmon Law</HI> it &s;elfe; the intent and &s;cope whereof, being to &s;et up and main|tain an ab&s;olute &s;ucce&s;&s;ive Monarchy in this Nation, and to keep the people in a &s;ubjection under it; that Government be|ing now thrown down, it may be inferr'd, that the Law al&s;o which did found and &s;upport it, &s;hould never be made u&s;e of more, and that a Law of greater liberty and freedome &s;hould be &s;et up in place of it: and &s;o in conclu&s;ion, the rea&s;on of the&s;e di&s;putants would allow us no Law at all.</P>
<P>But the&s;e mu&s;t not be ignorant, that the <HI>Civil Law</HI> was ori|ginally made lea&s;t of all for Eccle&s;ia&s;ticall matters, nor yet for &s;o few ca&s;es, as in this Nation it was permitted to deal in: but it was fir&s;t ordained, to guide the mightie&s;t and va&s;te&s;t Empire that the world hath yet known; and under it the &s;ame grew and pro&s;pered, to the terror of its enemies, the joy and com|fort of its friends and confederates, and to the a&s;toni&s;hment of the whole Earth. Indeed before the fir&s;t foundations of this Law were laid, the <HI>Romans</HI> did not di&s;daine to fetch their Lawes from <HI>Athens,</HI> that City which was once the nur&s;e of Rea&s;on, and flouri&s;ht in eloquence and brave atchievements more then all <HI>Greece,</HI> whence the learned Fathers of the Church &s;uckt literature; <HI>Ba&s;il</HI> his eloquence, <HI>Nazianzen</HI> his &s;trength, and others their flowing Oratory; that <HI>Athens,</HI> which who had not &s;een, is by <HI>Ly&s;ippus</HI> accounted a very block. But &s;ince this beautifull fabrick of the <HI>Civil Law</HI> was reared up, and came to the perfection we now &s;ee it in, it did not onely order and compo&s;e all matters of publick Ju&s;tice, and of private Right
<PB N="30" REF="23">in that State, but is &s;ince, through the &s;ingular trea&s;ures of Wi&s;dome and pure&s;t Rea&s;on laid up there, propagated al&s;o to other Nations, who con&s;tantly u&s;e it in their Courts, in conjun|ction with their own Lawes. And in conformity to other Na|tions did it come to pa&s;&s;e, that the u&s;e of it was admitted, and brought into the Eccle&s;ia&s;ticall, and other Courts of this Nati|on, where naturall Equity and the be&s;t Rea&s;on came to be di&s;pen&s;ed, in the doing of right and ju&s;tice; and e&s;pecially for commerce with Nations abroad, whereunto that knowledge is mo&s;t requi&s;ite.</P>
<P>Therefore to &s;ay that the <HI>Civil Law</HI> is u&s;ele&s;&s;e, becau&s;e the Eccle&s;ia&s;ticall power is thrown out, is as much as if we &s;aid, we have no further need of naturall Equity, or right Rea&s;on, nor need to treat with forreign Nations any longer, nor now be &s;o wi&s;e as we have been, and as other Nations are.</P>
<P>La&s;tly, though the wi&s;e&s;t of a people have upon mature de|liberation agreed upon a Law, and the Legi&s;lative power of the Nation has enacted it, yet that does not pre&s;ently conclude the &s;ame to be rationall: for &s;ince the people of other Nations are partakers of the &s;ame Nature, Rea&s;on, Learning, and Ex|perience with them, except it can appear rationall to others al|&s;o that are taught and guided by the &s;ame principles, it is not to be deemed rationall.</P>
<P>And from this &s;ingle ground onely was it, that the <HI>Roman Civil Law</HI> came to be &s;o univer&s;ally embraced by other Nations, and to pa&s;&s;e &s;o generally for a mo&s;t rationall and ju&s;t Law, be|cau&s;e more naturall and common principles of Rea&s;on, Ju&s;tice and Equity were found therein, then in any other Law of Mans ordaining; and becau&s;e we meet with that rea&s;on there, that is univer&s;all and common to all mankind.</P>
<P>And if there be any certainty of Rea&s;on in matters of hu|mane di&s;cour&s;e, (as we mu&s;t admit there is, el&s;e we &s;hall put out one of the chiefe&s;t lights that God has given to the world) it is to be di&s;covered no where &s;ooner, then from that, which not onely one whole Nation has agrred upon and e&s;tabli&s;hed for a Law among&s;t them&s;elves, but which other Nations be&s;ides them, have allowed for true rea&s;on, and practi&s;ed the &s;ame al|&s;o within their &s;everall territories for many hundreds of years
<PB N="31" REF="23">together; for the mo&s;t certain token of evident rea&s;on is, if the generall per&s;wa&s;ion of all men doe &s;o account it, and when the judgements of all men generally, or for the mo&s;t part, run one and the &s;ame way. <HI>Non pote&s;t error contingere, ubi omnes idem opinantur; &amp; quicquid in omnibus individuis unius speciei com|muniter ine&s;t, id cau&s;am communem habeat oportet, quae e&s;t eo|rum individuorum species &amp; natura.</HI> No error is to be feared in &s;uch matters where all men are of the &s;ame opinion; and what is ingrafted in every individuall of the &s;ame &s;pecies, mu&s;t nece&s;&s;arily proceed from one common cau&s;e, which is nothing but their very nature. The generall and perpetuall voice of Men, is as the &s;entence of God him&s;elf; for that which all men have at all times learned, Nature her &s;elfe mu&s;t needs have taught; and God being the Author of Nature, her voice is but his in&s;trument: By her from him we receive, what&s;oever in &s;uch &s;ort we learne.</P>
<P>When therefore we &s;ay, that the Law of a Nation ought to be conformable to Rea&s;on, we mean and intend &s;uch Rea&s;on, as other Nations and Men doe generally by the in&s;tinct of Na|ture, the meanes of good Literature, and their in&s;ight in Civil affaires, under&s;tand and agree to be rea&s;on in &s;uch matters. <HI>Non enim licet naturale univer&s;aleque hominum judic&icirc;um fal&s;um va|numque exi&s;timare:</HI> It is not fitting to que&s;tion that which is generally allowed by all men. And that Law that approches and comes neare&s;t to &s;uch common and univer&s;all rea&s;on, is the true&s;t and perfecte&s;t Law of all other, and makes the people mo&s;t happy and quiet that live under it.</P>
<P>Howbeit, &s;ince this is a ble&s;&s;ing that every Nation does not enjoy, froward &amp; perver&s;e men mu&s;t not take an occa&s;ion from hence, to de&s;pi&s;e and quarrel with their own Laws, upon pre|tence that they are irrationall. <HI>Cognitio de bone &amp; malo non pertinet ad &s;ingulos: omne judicium in civitate e&s;t illius qui glae|dium belli &amp; gladium ju&s;titiae gerit. Regulae boni &amp; mali, ju&s;ti &amp; inju&s;ti, hone&s;ti &amp; inhone&s;ti, &s;unt leges civiles; ideoque quod Le|gi&s;lator praeceperit, id pro bono, qnod vetuerit, id pro malo haben|dum e&s;t.</HI> To judge what is good, and what is evill in a common &s;ociety, belongs not to any, that are under rule; but to him or them &s;olely, in whom the Supreme Power re&s;teth: The mea|&s;ures
<PB N="32" REF="24">of good and evill, ju&s;t and unju&s;t, hone&s;t and di&s;hone&s;t, are &s;ingly the Lawes of every State. Therefore what the Law|giver does pre&s;cribe, with &s;ubjects mu&s;t pa&s;&s;e for good; and what he forbids, they mu&s;t look upon as evill, till he thinks fitting to order and declare otherwi&s;e: In&s;omuch as neither the Judges nor Magi&s;trates them&s;elves can di&s;pute or Judge thereof. <HI>In temporal bus legibus, quanquam de his homines judicent, c&ugrave;m cas in&s;tituunt; tamen c&ugrave;m fuerint in&s;titutae &amp; firmatae, non lice|bit judici de ip&s;is judicare, &s;ed &s;ecundum ip&s;as,</HI> &s;ayes S. <HI>Augu&s;tine,</HI> as he is cited by the Canon Law<NOTE N="a" PLACE="marg">Cap. <HI>3.</HI> Di&s;t. <HI>4.</HI></NOTE>: In temporall Lawes, though they may be debated by any man while&s;t they are in making, yet when they are once agreed on, and fully pa&s;&s;ed, the Judge &s;hall judge by them, but of them he ought not to judge.</P>
<P>In pre&s;&s;ing then that a Law ought to be agreeable to right rea&s;on, the argument is directed to the Law-giver, not to the Subject; and the &s;cope of it is to &s;hew, rather what a Law ought to be, then to quarrell with any particular Law, becau&s;e it is not &s;o rationall as it &s;hould be, and as other Lawes are. But withall, it profe&s;&s;edly aymes to di&s;cover the &s;trange weak|ne&s;&s;e of tho&s;e, that when other Nations hold fa&s;t the <HI>Roman Civil Law,</HI> as being the &s;umme and &s;ub&s;tance of all humane rea&s;on, they are willing to forgo it quite, when they have had the conjunction and a&s;&s;i&s;tance thereof &s;o long in this Nation, and may with &s;o much ea&s;e and advantage keep it &s;till. To whom I &s;hall give no 'other caution, then what <HI>&V;lpian,</HI> one of the grave &s;ages of the <HI>Civil Law</HI> give;<NOTE N="b" PLACE="marg"><HI>L. 2.</HI> Dig. de con&s;tit print.</NOTE> <HI>In rebus novis con&s;titu|endis evidens e&s;&s;e utilitas debet, ut recedatur ab eo jure quod diu aequum vi&s;um e&s;t:</HI> Among&s;t other alterations, &s;aith he, that is, be it Government or what ever el&s;e, that comes to be altered in a &s;tate, yet it ought to be &s;ome apparent advantage that &s;hould induce a Nation to part with that Law that has by long u&s;e been found to be very equall.</P>
</DIV2>
<DIV2 N="4" TYPE="chapter">
<PB N="33" REF="24">
<HEAD>CHAP. IV.</HEAD>
<ARGUMENT>
<P>That Rea&s;on is not &s;o strictly required in the Law that or|ders the affaires of State, as in that that &s;ettles the diffe|rences that ari&s;e between Man and Man.</P>
</ARGUMENT>
<P>IF then we would know, when rea&s;on ought to manife&s;t it &s;elfe in a Law, and when it is not &s;o &s;trictly required, but that &s;ome deviation may be permitted, we mu&s;t ob&s;erve a wide difference between the publick affaires of State, and tho&s;e of the Subjects own in their private dealings and controver&s;ies with one another; for although all the affaires of a Nation both pub|lick and private, mu&s;t be under the provi&s;ion and rule of the Law, yet is it not nece&s;&s;ary, that they &s;hould both be regulated in one and the &s;ame manner, nor by one and the &s;ame rea&s;on; for there is a Rea&s;on of State, as well as a Rea&s;on of Na|ture.</P>
<P>In the Laws for publick matters, becau&s;e they re&s;pect the wel|fare and pre&s;ervation of the whole &s;ociety meerly, and &s;o are not to be tyed to the &s;ame rules every where, a &s;trict adherence to naturall Equity and common Rea&s;on is not required: Safety and convenience is Rea&s;on enough to ju&s;tifie them; &s;o they en|courage Vertue, puni&s;h Vice, maintain Trade and Indu&s;try, and uphold Religion. Yet it is the happie&s;t, when there is the lea&s;t aberration from common Equity and known Rea&s;on, even in tho&s;e things wherein the whole Common-wealth is princi|pally concerned.</P>
<P>But it is to be con&s;idered, that there are &s;uch multitudes of peo|ple, &s;uch difference of degrees, qualities and conditions, and &s;uch perver&s;ity of Wills, Humours, and Affections in every Common-wealth, that no humane Wit is able by &s;weet equitable wayes, to reduce them to that perfect temperature and harmony, which is requi&s;ite for the con&s;ervation 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 up&s;ide down, and di&s;&s;olved by
<PB N="34" REF="25">the perver&s;e humour of &s;ome one or two, not corrigible by any whol&s;ome Coun&s;el, or moderate Cha&s;ti&s;ement of the head of it. What marvell is it then, if in whole Kingdomes and Common-wealths, among&s;t &s;o many thou&s;ands of different per|&s;ons, and of different humours, there are many &s;o exorbitant and turbulent, that no Wit nor power of Man can be able fairely to tame or temper them?</P>
<P>The Lawes therefore mu&s;t be fitted to all &s;uch publick acci|dents, providing &s;harp remedies for Di&s;ea&s;es that are acute and de&s;perate: neither mu&s;t they tender the private right or &s;afety of a few, if their detriment or mi&s;chiefe may &s;ecure the whole. In the&s;e ca&s;es, <HI>Legum convenientiam &amp; aptitudinem &s;emper expetimus, non &s;emper aequitatem:</HI> The extremities of a Nation mu&s;t be provided for by fitting and convenient meanes, though the exactne&s;&s;e of Right and Ju&s;tice &s;eems to be infring|ed: for herein the Common wealth is like unto a Ship in a &s;torm at Sea, where the Ma&s;ter may ca&s;t over board what private mans goods he will, to lighten the Ship, and to pre&s;erve the whole: So where an enemy with an Ho&s;tile intent is coming again&s;t a great City, the City may demoli&s;h or &s;et on fire the Suburbs, rather then permit the enemy to harbour there, there|by to annoy and endanger the whole City. The like mu&s;t the e&s;tabli&s;hments of Law be, that are directed to a publick end, they mu&s;t aime to procure the common welfare, without any re&s;pect to private right, or imaginary rea&s;on.</P>
<P>But in &s;uch Lawes as are purpo&s;ely made to defend every mans private intere&s;t, and to pacifie contentions and quarrels ari&s;ing thereupon, and where the publick is not concerned, it not onely may but ought to be otherwi&s;e. They mu&s;t hold forth Nature, Equity, Rea&s;on and a &s;ound judgement, &s;o as to command every judicious mans a&s;&s;ent and approbation; and even they that are ca&s;t may not complain, murmure, or di&s;pute the &s;ame. And in the &s;ame manner has <HI>We&s;enbeck</HI> in his <HI>Pa|ratitles</HI> upon the <HI>Dige&s;ts,</HI><NOTE N="a" PLACE="marg">Tit. de Ju&s;t. &amp; Jur. nu. <HI>14.</HI></NOTE> differenced the&s;e two &s;orts of Laws: <HI>Jus privatum,</HI> &s;aith he, <HI>quiae in reddendo cuique quod &s;uum e&s;t, ver&s;atur, e&ograve; ad normam aequalitatis &amp; ju&s;titiae congruat oportet: &s;ed jus publicum, non totum ad normam aequitatis vel aequali|tatis, ut jura privatorum, &s;ed ad id quod reip. e&s;t opportunum,
<PB N="35" REF="25">praecipue aptatur.</HI> The Law that is made for the u&s;e of each &s;ubject again&s;t another, becau&s;e the office of it is, to give to e|very one his own, it mu&s;t mea&s;ure it out by the preci&s;e rule of equality and ju&s;tice. But the Law that is made to order the ge|nerall welfare of the whole State, is not tyed to any &s;uch rule of equity, but is &s;uch as the advantages and exigencies of State require.</P>
<P>In all private affaires therefore that happen between party and party, wherein there is no mixture of State-intere&s;t at all, and which come to be determined by a Law, we require, that the rules by which &s;uch Controver&s;ies are appointed to be de|cided, have not in circum&s;tances (for they may be arbitrary, and according to meer will) but in &s;ub&s;tance &s;o &s;ure a ground in Rea&s;on and common Equity for the mo&s;t part, as either to be con&s;onant to the dictates of Nature, or obvious to vulgar under&s;tandings, or at lea&s;t di&s;cernable by the wi&s;e&s;t and mo&s;t judicious of men, acquainted with the principles of Law, and the rules of Right and Ju&s;tice. Neither is it the bare rea&s;on of the wi&s;e&s;t, if it be &s;uch as is floating in the brain onely, that will here &s;uffice; but it mu&s;t be committed to writing, and have &s;uch an authority to own it, as is authenticall and currant among&s;t the greate&s;t and be&s;t di&s;ciplined Nations al&s;o, which kind of rea&s;on thus authorized, e&s;pecially in any ample mea&s;ure, is to be looked for and found onely in the Civill Law<NOTE N="b" PLACE="marg">Ratio natura|lis &s;ecundum ho|minum captum quandoque vari|at, &amp; multi non tam ratione ill. qu&agrave;m phanta&s;ia aguntur. Leges autem latae &agrave; &s;apienti&s;&s;imis viris, &amp; judicie omnis &s;cculi approbatae, cert&egrave; cam rationem tenens. <HI>Alb. Gentil. de ju. bel. lib. 1. c. 1.</HI></NOTE>.</P>
</DIV2>
<DIV2 N="5" TYPE="chapter">
<PB N="36" REF="26">
<HEAD>CHAP. V.</HEAD>
<ARGUMENT>
<P>That the Cu&s;tomes of a Nation ought in like manner to a|gree with Rea&s;on.</P>
</ARGUMENT>
<P>ANd here I am not unmindfull, that be&s;ides written Lawes and con&s;titutions, there are belonging to every Nation, Cu&s;tomes and u&s;ages unwritten, which have as great an over|ruling power upon the per&s;ons and rights of the people, after they have been generally allowed, and that their ob&s;ervation hath been con&s;tant and un-interrupted for a long time together: And therefore &s;ayes <HI>Mode&s;tinus,</HI><NOTE N="a" PLACE="marg"><HI>L. 40</HI> Dig. de Leg.b</NOTE> <HI>Omne jus aut con&s;en&s;us fecit, aut nece&s;&s;itas con&s;tituit, aut firmavit con&s;uetudo:</HI> All Law pro|ceeds either from con&s;ent, nece&s;&s;ity, or cu&s;tome. Neither is it rare but common, to find in every Nation &s;uch u&s;ages as doe intermixe them&s;elves with the acts of Ju&s;tice, and the rights of the people, and yet they have by long continuance &s;o worn out their Originall, that no rationall account can be given of them, nor no ground in rea&s;on rendred by tho&s;e that u&s;e them; and yet they will not &s;tick to &s;acrifice their mo&s;t precious enjoy|ments to pre&s;erve them, nor will admit of a change of them, upon any pretence of greater advantages what&s;oever.</P>
<P>The rea&s;on hereof lyes in the affection which the people are apt to bear towards that, of which them&s;elves are the Au|thors, Cu&s;tomes being fir&s;t brought in and con&s;ented to by them: but Lawes are impo&s;ed on them by their Princes, whe|ther they will or no. <HI>Con&s;uetudines,</HI> &s;ayes<NOTE N="b" PLACE="marg">Rer. Judic. l. <HI>3.</HI> s. <HI>1.</HI></NOTE> <HI>Anaeus Robertus, &s;ubditis neque graves &s;unt neque odio&s;ae, &s;ed leges i&s;tae municipibus videri &s;olent &s;upra caetoras omnes accepti&s;&s;imae, c&ugrave;m toler abilius &s;it, con&s;uetudinis vinculo qu&agrave;m legum nece&s;&s;itate a&s;tringi Qu&agrave;m dulce, qu&agrave;m gratum e&s;t volun ariae &s;ubjicii nece&s;&s;itati, &amp; illo ju|ris vinculo a&s;tringi, cujus c&ugrave;m authores &s;imus, puderet iniqui|tatem aut &s;everitatem accu&s;are? At regia edicta non ratio &s;ed &s;ola dominantis voluntas, ju&s;ts &s;it an inju&s;ta, &s;ancit &amp; mode|ratur:</HI> Cu&s;tomes are neither burthen&s;ome nor unplea&s;ing to the people, but above all other kindes of Law &s;eem mo&s;t accep|table,
<PB N="37" REF="26">&s;ince it is more tolerable to be tied to Cu&s;tome, than to an impo&s;ed Law. How &s;weet and plea&s;ing is it to be &s;ubject to a nece&s;&s;ity of ones own making, and to be bound by &s;uch a Law, which when we have made our &s;elves, we cannot for &s;hame complain, that it is either unju&s;t or rigorous? But the Edicts of Princes flow not from rea&s;on, but from meer will, without re|&s;pect either to right or wrong.</P>
<P>Be&s;ides, though the rea&s;on of &s;ome Cu&s;tomes be not now di|&s;cerned, yet it cannot be &s;uppo&s;ed but when they were fir&s;t ad|mitted by the people, they tended to their common good. For, <HI>Quoties de jure populi agitur apud populum, cui mutare, cui abrogare, cui ferre quas velit leges, accipere quas velit rogationes liceat, nunquam &s;e ip&s;e diminuet;</HI> They will never prejudice their owne rights by any Cu&s;tome or Law which them&s;elves e&s;tabli&s;h, &s;ayes <HI>Quintilian.</HI><NOTE N="a" PLACE="marg">Detlam. <HI>254.</HI></NOTE> Howbeit it is no more e&s;&s;entiall to a Law then it is to Cu&s;tome, to be rea&s;ona|ble when it is fir&s;t ordained.<NOTE N="b" PLACE="marg">L. <HI>1.</HI> &amp; <HI>2.</HI> co. Quae&s;it longa con&s;uet.</NOTE> <HI>Rei non bonae con&s;uetudo pe&s;|&s;ima est: Nemo con&s;uetudinem rationi &amp; veritati praeponat; quia con&s;uetudinem ratio &amp; veritas &s;emper excludit,</HI> &s;ayes Saint <HI>Augustine,</HI><NOTE N="c" PLACE="marg">Lib <HI>3.</HI> de Ba|pti&s;mo contra Donati&s;tas, <HI>cited in the Canon-law.</HI> Di&s;t. <HI>8.</HI> c. <HI>4.</HI></NOTE> Let no man preferre Cu&s;tome before ei|ther Truth or Rea&s;on, becau&s;e Truth and Rea&s;on does drive contrary Cu&s;tome quite away. So that both in a Law and a Cu&s;tome al&s;o, it is equally requi&s;ite that they &s;hould both be rational.</P>
</DIV2>
<DIV2 N="6" TYPE="chapter">
<PB N="38" REF="27">
<HEAD>CHAP. VI.</HEAD>
<ARGUMENT>
<P>Where Law or Cu&s;tome is wanting, to judge by Pre&s;ident or Example, has no defence in Rea&s;on.</P>
</ARGUMENT>
<P>ANd &s;ince Right rea&s;on is &s;o e&s;&s;ential to that which comes to arbitrate and judge of our Lives, Livelyhoods, and Inte|re&s;ts, we mu&s;t crave leave to di&s;allow of their opinion and pra|cti&s;e, who when they have neither Law nor Cu&s;tome of their own countrey, to guide their judgements by in any ca&s;e that comes before them, do not re&s;ort to the Civil Law, as other Nations commonly do, but do u&s;ually &s;upply that defect by pre&s;idents, thinking that any ca&s;e which the Law has not provi|ded in, may be judged by a Judgement had in the like ca&s;e be|fore; which certainly cannot be defended by any right rea&s;on, or good judgement.<NOTE N="a" PLACE="marg">Si dixcrit ali|quis, &s;i vidi, &s;ic audivt; en dcci&s;iones; magis ri&s;um quam fidem no&s;tram excitat. <HI>Mae&s;tert. Di&s;&s;ertat. de Artific. di&s;put. parag. 9.</HI></NOTE> For,</P>
<P>Fir&s;t, the conformity of one &s;entence to another, to rational and wi&s;e men argues nothing as to right or equity, but concludes a concurrency in opinion onely, both which may be erroneous and mi&s;taken.</P>
<P>Secondly, as in judged ca&s;es, taken meerly as &s;uch, there is want of rea&s;on to per&s;wade, &s;o there is want of authority al&s;o to oblige; for what force or power can the judgements or &s;en|tences of any predece&s;&s;ors have to bind or limit tho&s;e that &s;hall &s;ucceed them in the &s;ame Judicatory? <HI>Par in parem non habet imperium, nec aliquis in &s;eip&s;um;</HI> Judges of equall power can|not exerci&s;e any rule over one another, nor indeed can any one tye up ones own &s;elf.<NOTE N="b" PLACE="marg"><HI>L. 13.</HI> parag. <HI>4.</HI> Dig ad S. C. Tr<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ble <HI>and</HI> Go|thofr. ibid.</NOTE> And therefore as it happens often, that <HI>de eadem re&s;aepe alius aliud decreverit aut judicaverit;</HI> upon the &s;ame fact one Judge judges one way, and another another: So it is to be &s;een too, that <HI>illi ali&agrave;s aliud ii&s;dem de rebus &amp; &s;entiunt &amp; judicant,</HI> the very &s;ame men do determine the &s;ame fact at divers times diver&s;ly, &s;ayes <HI>Erodius</HI><NOTE N="c" PLACE="marg">Rer. Judic. lib <HI>1.</HI> Tit. <HI>1.</HI> c. <HI>18.</HI> &amp;c. <HI>26.</HI></NOTE>. For indeed the judgements
<PB N="39" REF="27">of Men may wax perfecter by age, &s;tudy, and experience, than they were when they gave their fir&s;t judgement: And tho&s;e that do &s;ucceed, may be by many degrees more eminent in wi&s;|dome, Rea&s;on, Knowledge, and Eperience, than tho&s;e that &s;ate in the &s;ame Tribunals before them; for there is in this world an undoubted wheeling in all things; Knowledge, Wit, and Under&s;tanding does not &s;hine and pro&s;per &s;o in &s;ome times, as in other &s;ucceeding times they do; and time to po&s;terity may di&s;cover that to be an errour, which our Ance&s;tors thought a truth.</P>
<P>Thirdly, there mu&s;t needs be little value and weight laid upon foregoing Judgements, even of the highe&s;t and mo&s;t exemplary tribunals of men; nor can they be e&s;teemed &s;uch fit patterns for our imitation, when it is con&s;idered what uncertainties they lye under, what failings they are &s;ubject to, and what arti|fices, &s;ubtilties, inventions, practi&s;es, and other undue means are too too frequently u&s;ed to corrupt and poy&s;on them. For,</P>
<P>Sometimes <HI>pars major vincit meliorem,</HI> the greater part weighs down the better. Where many Judges are to pronounce Judge|ment, and &s;ome one or two of them be eminently qualified above all the re&s;t, that which the greater number concurs in onely, mu&s;t prevail and take effect; but if the wi&s;e&s;t be di&s;&s;en|ters, <HI>numero potius quam &s;cientia judicatur,</HI> there is more of num|ber than of weight or knowledge in &s;uch a &s;entence.</P>
<P>Sometimes he, in who&s;e favour &s;entence is given, carries it but by one vote more than he again&s;t whom it pa&s;&s;eth.</P>
<P>Sometimes &s;ome one of the Judges being more renowned, or happily more eloquent than his fellowes, does either through his greatne&s;&s;e, &s;peech, dexterity, or wit, draw all the re&s;t into er|rour by his too powerful interpo&s;ing.</P>
<P>But the danger of pa&s;&s;ing wrong and erroneous judgement is greater, where the office and power of judging re&s;ts in one &s;ingle per&s;on only, &s;ince it is ea&s;ier to draw away and overcome one than many. And although it is his office to &s;et before his eyes Law, Religion, Equity, and Truth, and remove far from him arbitrary &amp; licentious Wil, Love, Hatred, Envy, Fear, Indulgence, Covetou&s;ne&s;&s;e, &amp; all inordinate Affections what&s;oever; yet here too, &s;ayes <HI>Quintilian, Pecunia quo&abque; per&s;uadet, &amp; gratia, &amp; au|toritas
<PB N="40" REF="28">dicentis, &amp; dignitas, &amp; po&s;trem&ograve; aspectus etiam ip&s;e &s;ine voce, quo vel recordatio merltorum cuju&s;&abque; vel favies aliqua mi&s;erabilis, vel formae pulchritudo &s;ententiam dictat;</HI> Money does prevail, and favour, and the graciou&s;ne&s;s of the &s;uppliant, and greatne&s;s does draw away, and &s;ometimes even the very pre&s;ence without any &s;peaking, either through the remembrance of &s;ome eminent de&s;ervings, or through the countenance being either mournful or &s;ad, to pity or to admiration beautiful, is a means to melt a Judge, and to corrupt and infect the Sen|tence.</P>
<P>It is too common al&s;o, that the wrong cau&s;e is follow'd with ex|acte&s;t diligence, &s;trengthened with the patronage of the mo&s;t &amp; the be&s;t advocates, &amp; &s;ome of them happily too nearly related to the Judge him&s;elf, and a&s;&s;i&s;ted with all other advantages, that can make Victory hopeful, when Right is de&s;titue of all a&s;&s;i&s;tances, and but weakly and faintly defended: the one &s;ide too bold and pre&s;&s;ing, the other too too mode&s;t and ba&s;hful, &s;hewing a kind of guilt in blu&s;hes. It is not &s;o rare neither as were to be wi|&s;hed, that the Regal or other Supreme power does intermeddle in the very acts of Ju&s;tice, either directly, or by &s;ome remoter influence; e&s;pecially when a Nation is embroyled in troubles, and divided into divers parties; for in &s;uch ca&s;e Ju&s;tice is made &s;ub&s;ervient and mini&s;terial to the &s;tronge&s;t and mo&s;t prevailing faction.</P>
<P>The&s;e are the di&s;&s;iculties and temptations which all Courts of Ju&s;tice have to contend withall, under which they may more ea&s;ily fall, than with&s;tand and vanqui&s;h them. The Judgements therefore and Sentences which they deliver, though we mu&s;t acquie&s;ce in and &s;it down by them, as to &s;uch ca&s;es which the &s;ame are purpo&s;ely given for to decide, and as to &s;uch per&s;ons that are mentioned or concerned therein (for el&s;e there would be no end of Controver&s;ies, nor no mans Right would be ever certain; and therefore the Civil Law &s;ayes, that <HI>Prator quo&abque; jus reddere dicitur, etiam c&ugrave;m iniqu&egrave; decernit,</HI><NOTE N="d" PLACE="marg"><HI>L. 11.</HI> dig. de ju&s;t. &amp; jur.</NOTE> and <HI>Res judica|ta pro veritate accipitur;</HI><NOTE N="e" PLACE="marg"><HI>L. 207.</HI> dig. de rap. jur.</NOTE> a Judge is &s;aid to mini&s;ter right, even when he decrees unju&s;t things, and a Sentence is taken, and &s;tands for truth;) yet there is nothing either of Equity or Rea&s;on to make them &s;o authoritative and powerful, as that
<PB N="41" REF="28">they &s;hould be drawn into example for the future, and be made patterns to determine other, though never &s;o like ca&s;es, by; &s;ince the wayes and means of obtaining them may not be fair, and their integrity and foundne&s;&s;e be que&s;tionable.</P>
<P>Fourthly, whereas &s;imilitude and likene&s;s of ca&s;es is the onely rea&s;on to per&s;wade the walking by the light of &s;uch Judgements as have been before pronounced upon facts that are &s;uppo&s;ed to have had the &s;ame circum&s;tances; <HI>Quintilian</HI><NOTE N="f" PLACE="marg">In&s;titut. l. <HI>5.</HI> c. <HI>2.</HI></NOTE> &s;ayes very truly, <HI>Vix ulla e&s;t cau&s;a per omnia alteri &s;imilis,</HI> there is &s;carce any cau&s;e that &s;uits or agrees with another in all circum&s;tan|ces: and again<NOTE N="g" PLACE="marg">Lib. <HI>7.</HI> iuprae|jat.</NOTE> he &s;ayes, <HI>Tot &s;eculis nulla repertae e&s;t cau&s;a, quae e&s;t tota alteri &s;imilis,</HI> In &s;o many ages, and in &s;uch a multi|tude of ca&s;es that have occur'd, there has not been found one wholly like another; for indeed the di&s;&s;imilitude and difformi|ty that is among&s;t our &s;elves and the whole off-&s;pring of man, not in outward form, vi&s;age, lineaments, or &s;tature onely, but even in our natures, tempers, inclinations, and humours al&s;o, makes all the matters we deal in, and the actions that flow from us, di&s;agreeing too. Al&s;o in the other productions of na|ture, and the accidents that are commonly a&s;cribed to Chance and Fortune, there is &s;uch a &s;trange and wonderful variety, that nothing is acted, produced, or happens like another, but that there is &s;ome circum&s;tance or other that does diver&s;ifie it and make it differ.</P>
<P>When therfore ca&s;es are eitherwholly diver&s;e &amp; differing, though in never &s;o &s;mall a circum&s;tance, their determinations cannot be the &s;ame<NOTE N="h" PLACE="marg">Re<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">per &s;e ip&s;e valde pernicio&agrave; e&s;t, exemplis non legibus judicare, cum ex levi&s;&s;ima per&s;onarum, vel locorum, vel temporum varie|ta<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">e judicia mu|tentu<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">. <HI>Bodin. de rep. l. 6. c 6.</HI></NOTE> for diver&s;ity of Fact mu&s;t needs beget a diver&s;ity of Law too; and a very &s;mall Circum&s;tance will change and al|ter the &s;tate of any bu&s;ine&s;s, and require clean another Judge|ment than can be had from Ca&s;es that do not exactly parallel them in all things.</P>
<P>And this has made all Lawyers to agree, that, <HI>argumentum du|ctum a &s;imili e&s;t mult&ugrave;m fragite &amp; infirmum; nec procedit, quando datur di&s;&s;imilitudo etiam parva</HI><NOTE N="i" PLACE="marg">Fverard. Topi. loc &agrave; &s;imili. <HI>nu 12.</HI></NOTE>; An Argument drawn from a like ca&s;e is very weak and impotent, and falls to the ground when the lea&s;t di&s;&s;imilitude is found.</P>
<P>Fifthly, &s;ince before former pre&s;idents can be made fitting rules to decide &amp; judge other ca&s;es by, it is ab&s;olutely nece&s;&s;ary
<PB N="42" REF="29">that the ca&s;es &s;hould agree punctually in all &s;uch circum&s;tances as were the prime efficient cau&s;e of &s;uch finall and definitive judgement; how &s;hall this Concordance be made evident and certain? for it mu&s;t either depend upon the memory and truth of a Reporter and the Judge together, or el&s;e upon the &s;afe keeping of all that was alledged and proved in the ca&s;e in &s;ome Rgi&s;try or Office, and the exact &s;earch and peru&s;al of all upon occa&s;ion; neither of which is authentical and &s;ure enough, whereby to judge and condemne another man: for either the report may be very ea&s;ily mi&s;taken, or &s;ome leading circum|&s;tance may &s;lip out of the Judges remembrance, or &s;ome of the Records be lo&s;t or mi&s;lay'd, &s;o that a part of the Ca&s;e whereupon the Judgement pa&s;&s;ed, may be wanting, and not rightly known.</P>
<P>Upon the&s;e and &s;uch like con&s;iderations is it, that the Civil Law does &s;o frequently expre&s;s it &s;elf in di&s;allowance of judging by pre&s;ident or example, and directs Judges to reflect onely up|on that which Truth and the Law will bear, and not upon any thing that has been done by others. <HI>Licet is qui provinciae prae|e&s;t, omnium Romae magi&s;tratuum vice &amp; officio fungi debeat, non tamen spectandum e&s;t quid Romae factu~ e&s;t, quam quid fieri debeat,</HI> &s;ayes <HI>Proculus</HI><NOTE N="k" PLACE="marg"><HI>L. 11.</HI> Dig. de offi<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"> Prae&s;id.</NOTE>. Though the provincial and inferiour Magi&s;trate does exerci&s;e the &s;ame power and office that the Magi&s;trates do in <HI>Rome,</HI> yet he mu&s;t not loook &s;o much at what they doe in <HI>Rome,</HI> though the chief and head City, as what indeed and in right they ought to do.</P>
<P><HI>Ju&s;tinian</HI> al&s;o did by an expre&s;s con&s;titution made in his time, command all the Judges to pur&s;ue &s;trictly Truth, Ju&s;tice, and the Lawes; and not in judging to take their example from the mo&s;t &s;olemn &s;entences of the highe&s;t and mo&s;t eminent Judges in the whole Empire; no nor to follow &s;uch re&s;olutions as him&s;elf &s;hould make to emergent doubts propounded unto him, if he had otherwi&s;e decided them then they ought to be: <HI>Non enim</HI> &s;aith he, <HI>&s;i quid non bene dirimatur, hoc &amp; in aliorum judicum vi|tium extendi oportet, c&ugrave;m non exemplis &s;ed legibus judicandum &s;it.</HI><NOTE N="l" PLACE="marg"><HI>L. 13.</HI> Go. de &s;ent. &amp; inter l. omn. jud.</NOTE> for if a ca&s;e has been once determined ami&s;&s;e, this &s;hould not &s;pread to the corrupting of other Judges, &s;ince we ought to Judge by the Lawes and not by example.</P>
<P>And therefore <HI>Gordian</HI> the Emperour makes it a &s;trange and
<PB N="43" REF="29">an unwonted thing in <HI>Rome,</HI> that Judgements had between o|ther parties, &s;hould either profit or prejudice tho&s;e who were neither pre&s;ent then in Court, nor ever called. <HI>Res inter alios judicatae,</HI> &s;aith he, <HI>neque emolumentum aff<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">rre his qui judicio non interfuerunt, neque praejudicium &s;o<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ent irrogare</HI><NOTE N="m" PLACE="marg"><HI>L. 2.</HI> Co. Qui|bue res judic. non noc.</NOTE>. Which holds not onely in civil matters, but as to prejudice reaches to cri|minall al&s;o: <HI>Juris manife&s;ti&s;&s;imi,</HI> &s;ayes <HI>Diocle&s;ian</HI> and <HI>Maximi|nian</HI> Emperours,<NOTE N="n" PLACE="marg">L. <HI>3.</HI> Co. Eod.</NOTE> <HI>in accu&s;ationibus, his qui congre&s;&s;i in judicio non &s;unt, officere non po&s;&s;e, &s;iquid forte prejudicii videatur ob|latum.</HI> There is nothing more manife&s;t in Law, then that in criminal pro&s;ecutions, a condemnation had can do no manner of hurt or hinderance to him that was not accu&s;ed.</P>
<P>I therefore &s;ay, as to prejudice, becau&s;e when Life or Honour is in Jeopardy by a criminous impeachment, the Law is &s;o care|full to pre&s;erve the &s;ame, that the acquittall of one offender is an acquittall of the other al&s;o, the Law being more prone to ab|&s;olve, then to condemne, and &s;o <HI>&V;lpian</HI> an&s;wered in the ca&s;e of Adultery:<NOTE N="o" PLACE="marg">L. <HI>17.</HI> Parag. <HI>6.</HI> dig ad l. Jul. de Adulter.</NOTE> <HI>Expectabit mulier,</HI> &s;aith he, <HI>&s;ententiam de a|dultero latam; Si ab&s;olutus fuerit, mulier per eum vincet, noc ultra accu&s;ari pote&s;t:</HI> Let the Woman waite the doom of the Man, if he be quitted, &s;he is thereby free and can never be ac|cu&s;ed; but if he be ca&s;t, that does not ca&s;t her, but &s;he &s;hall de|fend her &s;elfe notwith&s;tanding. And the rea&s;on that is a&s;&s;igned is ob&s;erveable. <HI>Quid euim &s;i adulter inimicitiis oppre&s;&s;us e&s;t, vel fal&s;is argumentis te&s;tibu&s;que &s;ubornatis apud prae&s;idem gravatus, qui aut noluit aut non petuit provocare? Mulier ver&ograve; judicem religio&s;um &s;ortita, pudicitiam &s;uam defendet?</HI> Po&s;&s;ibly he might be oppre&s;&s;ed with Malice, or condemned by fal&s;e Witne&s;&s;es, or the Judge might be carryed away with &s;mooth words, or meer outward &s;hews: The Woman coming under a better and more upright Judge, may vindicate her cha&s;tity, and clear her in|nocence better. Neither will any likene&s;&s;e of one ca&s;e to ano|ther, involve an ab&s;ent per&s;on in &s;uch accidents as have fallen upon other men; for, <HI>nee in &s;imili negoeio res inter alios actas ab|&s;enti praejudicare, &s;ape con&s;titutum e&s;t,</HI> &s;ayes the Law<NOTE N="p" PLACE="marg">L. <HI>4.</HI> Co. Quib. res judis.</NOTE>: It has been frequently over-ruled, that though the ca&s;es are never &s;o much the &s;ame, yet a third per&s;on that never was a party, &s;hall &s;u&s;taine no detriment by what hath been done between tho&s;e
<PB N="44" REF="30">that were. For be&s;ides divers Lawes that are &s;et under other Titles, there is a whole Title to the &s;ame effect.<NOTE N="q" PLACE="marg">Co. Res inter alios judicas. ali|is non nocere.</NOTE>.</P>
<P>Neither does the Law look upon it as any incongruous or &s;trange thing, that the &s;ame bu&s;ine&s;&s;e &s;hould be judged diver&s;ly, for it does in&s;tance where it does frequently come to pa&s;&s;e. <HI>Circa inofficio&s;i querelam,</HI> &s;ayes <HI>Paulus, evenire plerumque a&s;&s;olet, ut in una atqne eadom cau&s;a diver&s;ae &s;ententiae proferantur</HI><NOTE N="r" PLACE="marg"><HI>L. 24.</HI> dig. de inoffic. Te&s;tum.</NOTE>. And the &s;ame &s;ayes <HI>Papinian; Filius qui de inofficio&s;i actione adver&s;us duos haeredes expertus, diver&s;as &s;ententias judicum tulit, &amp; unum vicit, ab altero &s;uperatus e&s;t;</HI> In an action that is brought again&s;t the Will made by a Father to the di&s;inheriting of his owne children, it is u&s;uall to have contrary &s;entences pronounced, the Sonne to vanqui&s;h one Executor, and to be overthrown by another.</P>
<P>And therefore the practicants allow not any &s;uch plea in the Court, as to &s;ay, that the ca&s;e hath been judg'd, except there be a concurrence of all the&s;e three things together, to wit, that the cau&s;e and proce&s;&s;e be the &s;ame, the right of action the &s;ame, and the per&s;ons the &s;ame too<NOTE N="&s;" PLACE="marg">Gail. ob&s;. lib. <HI>1.</HI> ob&s;. <HI>70.</HI> nu. <HI>17.</HI></NOTE>; &s;o that though the <HI>cau&s;a agendi,</HI> the ground of &s;uit were the &s;ame in all things, yet if the &s;ame per&s;ons never had any &s;uch &s;uit depending, but that there is a new per&s;on in judgement which never appeared before, the proceeding mu&s;t now be made wholly upon a new &s;tock, with|out con&s;idering how and in what manner the right has been judg'd before between other per&s;ons. Neither is it materiall, whether the Judge that is to give the pre&s;ent judgement, be the &s;ame that judg'd the like ca&s;e before, or whether they be diver&s;e; for the Law is &s;till the &s;ame in both. <HI>Menochius</HI> re&s;olves the one ca&s;e,<NOTE N="t" PLACE="marg">Con&s;il. <HI>59.</HI></NOTE> <HI>Diver&s;ae &s;ententiae,</HI> &s;aith he, <HI>&agrave; diver&s;is judicibus, inter diver&s;as per&s;onas, diver&s;is temporibus, ex una eademque facti specie ferri po&s;&s;unt:</HI> Upon one and the &s;ame fact, contrary &s;entences may be given by &s;everall Judges, between other per|&s;ons, at &s;everall times; and againe,<NOTE N="u" PLACE="marg">Con&s;il. <HI>180.</HI> Cum. <HI>51.</HI></NOTE> <HI>Non aequi&s;&s;imi ju|dicis e&s;t facere quod ab aliis fuit factum, &s;ed quod fieri ab illis <GAP DESC="illegible" RESP="UOM" EXTENT="1 word"> buit, &s;equi.</HI> It is not the part of a ju&s;t Judge to judge as others have done, but as they and all ought to doe. As to the other, <HI>Chri&s;tinaeus,</HI> notwith&s;tanding the great paines he has taken, to gather together as many judgements and deci&s;ions of the great
<PB N="45" REF="30">Councell of <HI>Machlyn</HI> in the Empire, as take up &s;ix volumes, yet he does not &s;tick to &s;ay<NOTE N="x" PLACE="marg">Vol. <HI>1.</HI> Dici&s;. <HI>2.</HI></NOTE> That <HI>Senatus non ligatur &s;uis an|terioribus &s;ententiis, quin valeat po&s;tea contrarium judicare.</HI> The Senate was not tyed to former judgements, but that they might judge the quite contrary afterwards; for he accounts it prai&s;e|worthy, to relinqui&s;h an errour, and to embrace a truth at any time: nor to be po&s;&s;ible, but that the change of times &s;hould introduce change of opinions and judgements al&s;o, and &s;hews that <HI>Afflictis</HI> in his time &s;aw that judg'd one way, which <HI>Gram|maticus</HI> afterwards reports to have been judg'd the contrary<NOTE N="y" PLACE="marg">Ac proptereae curia Par &s;i<GAP DESC="illegible" RESP="UOM" EXTENT="3 letters"> in &s;intentiis &s;ae|pius haec ve<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ba &s;ubjecit; Neu julicatares ad con&s;equentia t<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ahatur. <HI>Bo|din. de rep. l. 6. c. 6.</HI></NOTE>. Thus then, &s;ince we require that Rea&s;on and naturall Equity &s;hould be &s;trong and vigorous both in Law and Cu&s;tome, or at lea&s;t no meanes repugnant to them, when they come to judge us; and that we &s;ee all manner of Rea&s;on to &s;tand again&s;t judg|ing by Pre&s;idents or foregoing judgements, be&s;ides the univer|fall Law and practice of Nations; we conclude that the way of judging by Pre&s;idents, is as erroneous a guide to walk by, and as little &s;atisfactory to the people, as a Law or Cu&s;tome that is void of all Equity and Rea&s;on, and therefore by no meanes to be entertained or admitted.</P>
<P>And yet we mu&s;t allow what <HI>Calli&s;tratus</HI> reports from the Emperour<NOTE N="z" PLACE="marg">L. <HI>38.</HI> dig. de Legib.</NOTE> <HI>Severus;</HI> That <HI>rerum perpetu&ograve; &s;imiliter judicata|rum autoritas vim legis obtinet:</HI> Ca&s;es con&s;tantly judg'd one way for a long tract of time together, doe &s;et a rule to &s;uch as &s;hall &s;ucceed: for as <HI>Cujacius</HI> likens it to Cu&s;tome,<NOTE N="a" PLACE="marg"><HI>L. 7.</HI> dig. de ju&s;t &amp; ju.</NOTE> <HI>Con|&s;uetudo,</HI> &s;aith he, <HI>non valet ni&s;i ex tempore longo, u&s;uque frequen|ti. Ita rerum judicatarum argumentum non valet, ni&s;i ex tem|pore longo &s;ive diuturn<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> frequentique, judicioque &s;imili:</HI> As cu|&s;tome is of no force, except it endures a long time, and is fre|quently put in ure: So to argue from foregoing judgements, is no weighty argument, except they have been many, and con|&s;tantly the &s;ame for a long time together. In like manner, it is mo&s;t true, that <HI>Optima legum &amp; con&s;uetudinis interpres e&s;t res perpetu&ograve; &s;imiliter judicata,</HI> The judging of the &s;ame thing al|wayes in one and the &s;ame manner, is the be&s;t help to under|&s;tand both Law and Cu&s;tome by: But then it mu&s;t be, &s;aith <HI>Cu|jacius, Non quodlibet judicium, &s;ed quod numero &amp; tempore valet;</HI> as if he had &s;aid, It mu&s;t not be once, twice, or thrice
<PB N="46" REF="31">judged &s;o, but the judgements mu&s;t be many, as well as alike; and it mu&s;t hold on &s;o for a long time together, before at can have the force or effect of a Law, and after it has &s;o long pre|vailed, it may be e&s;teemed not &s;o much Law, as Rea&s;on; for certainly it could not have &s;o long endured, if the rea&s;on of it had not been evident to tho&s;e, who&s;e judgements were &s;o con|formable as never to di&s;agree therein.</P>
</DIV2>
<DIV2 N="7" TYPE="chapter">
<HEAD>CHAP. VII.</HEAD>
<ARGUMENT>
<P>That they are great advantages which a Nation has by ru|ling by &s;uch a Law as is rationall.</P>
</ARGUMENT>
<P>THe governing and judging by that Law which Rea&s;on teacheth us, cannot but be effectuall unto that Nations great good that ob&s;erves the &s;ame; for we &s;ee the whole world and each part thereof &s;o compacted, that as long as each thing performeth onely that worke which is naturall unto it, it there|by pre&s;erveth both other things, and al&s;o it &s;elfe. Contrariwi&s;e, let any principall thing, as the Sun, the Moon, any one of the Heavens or Elements, but once cea&s;e, or faile, or &s;werve, and who doth not ea&s;ily conceive, that the &s;equell thereof would be ruine both to it &s;elfe, and what&s;oever dependeth on it?</P>
<P>As therefore the obedience of other Creatures unto the Law of Nature is the &s;tay of the whole World, &s;o nothing is more effectuall to the upholding of any communion among&s;t men, then to command the peoples obedience to nothing more, then what Nature and Rea&s;on prompts them to, and to determine their Rights by Rules, which them&s;elves cannot gain&s;ay; for when the judgements of a people are &s;atisfied in the Rea&s;on and Ju&s;tice of that which is commanded, either by their own under&s;tandings, or as they are taught by more knowing men; they &s;it down in a quiet and contented &s;ubmi&s;&s;ion, and looking upon their Governors with the greate&s;t Reverence and Honor, they obey without complaining, and thereby the publick peace is al&s;o &s;ecured.</P>
<PB N="47" REF="31">
<P>But when the Lawes of a Nation, that &s;hould be mo&s;t clear and rationall, are wrapt up in a &s;trange language, delivered in termes mo&s;t intricate, and the matter thereof not intelligible by any degree of true Rea&s;on or Learning; the people are pre|&s;ently po&s;&s;e&s;t with a jealou&s;ie, that their deare&s;t rights and mo&s;t pretious intere&s;ts may mi&s;carry under them, and their &s;ure&s;t po&s;&s;e&s;&s;ions &s;natcht from them, under pretence of a Law which they cannot di&s;cerne any Ju&s;tice or Rea&s;on in; till at la&s;t they fall into open rage and di&s;temper, thereby di&s;turbing the pub|lick peace, and oft-times &s;haking the very Government it &s;elfe in their fury<NOTE N="a" PLACE="marg">Legum at Ma gi&s;tratuum con temptum &s;equun tue populi &s;editi o&s;ae voces, &amp; adve, &s;us priu|cipes ip&s;os conju|rationes ac defe|ctiones. <HI>Bodin. de rep. l. 3. c. 1.</HI></NOTE>: for there is no bondage like to the &s;lavery of the Judgement, and the captivity of the Will; neither is there any greater occa&s;ion or ground of fear, then when a man is con|&s;trained to tread &s;uch &s;teps, where his under&s;tanding cannot guide him. But e&s;pecially for ones fortune or per&s;onall &s;afety to be expo&s;ed to danger in &s;uch unknown and undi&s;cernable wayes, it mu&s;t needs draw on a greater di&s;temper in the minde, becau&s;e of the great con&s;equence thereon depending. Moreover, when the dictates and proceedings of Law are rationall, we are much a&s;&s;i&s;ted by our Rea&s;on in a conformity and obedience to them, even when we doe not exactly know the Law it &s;elfe and we doe not &s;o &s;oon &s;lip into danger or mi&s;chiefe 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 ob&s;erve rules which we cannot under&s;tand, it is then that we wander out of one Labyrinth into another, till mi&s;chie&s;e and the penalty of the Law &s;urprizeth us una|wares.</P>
<P>Be&s;ides, Lawes that carry in them hone&s;t, rationall, and clear principles, are as &s;o many le&s;&s;ons for the people to fa&s;hion their lives and actions by, who&s;e nature and manners will be much tempered by the di&s;cipline of the Law they live under; for &s;ince it is the onely guard and &s;ecurity that they have for their lives and fortunes, they will be &s;tudious in it, inqui&s;itive after it, and attentive to it; and &s;o whil&s;t they &s;tudy and learne the Law, to keep them&s;elves and their e&s;tates in &s;afety, at the &s;ame time they al&s;o learn all the duties of a Morall life, and &s;uck in the true&s;t principles of practicall integrity, and civill conver|&s;ation.
<PB N="48" REF="32">And this among&s;t many others, hath been one very powerfull inducement to Chri&s;tian Nations, to receive and che|ri&s;h the u&s;e of the <HI>Civil Law</HI> to much as they doe, becau&s;e no humane Law or Learning does &s;o well teach men to be ju&s;t ver|tuous, &amp; innocent in all the actions of this life, as that Law doth. <HI>Iu&s;titiam colimus, &amp; boni &amp; aequi notitiam profitemur; aequum de iniquo &s;eparantes licitum ab illicito di&s;cernentes; bononon &s;olu~ metu poenaru~ ver&ugrave;m etia~ proemioru~ quo&abque; exhortatione efficere cupientes; veram, ni&s;t fallor, philo&s;ophiam, non &s;imulatam affectantes,</HI> &s;aves <HI>&V;lpian</HI><NOTE N="b" PLACE="marg"><HI>L. 1.</HI> dig. de Just. &amp; jur.</NOTE>, in the name of all the Lawyers. We adore Ju&s;tice, and the knowledge of Right and Equity is our profe&s;&s;ion; di|viding Equity from what is unequall; di&s;cerning lawfull things from unlawfull; aiming to make men vertuous, as well by re|warding them where they doe well, as puni&s;hing them when they doe ill; teaching &s;uch wi&s;dome, if I mi&s;take not, &s;aith he, as is not for &s;hew and o&s;tentation, but is true, &s;olid, and &s;ub|&s;tantiall: For <HI>Cujacius</HI> explaining the la&s;t words of that Law, makes it the proper office of a Lawyer, to teach men to bridle their Lu&s;ts and Appetites, to &s;tudy the common good, to de|fend their own, to keep their de&s;ires, hands and eyes from the goods of others; which are but the le&s;&s;ons of a true Philo|&s;opher.</P>
<P>Likewi&s;e the &s;umme and &s;ub&s;tance of all that a man owes morally either to him&s;elfe or others, is comprized in the three generall precepts of the <HI>Civil Law: Hone&s;t&egrave; vivere, alterum non laedere, &s;uum cuique tribuere</HI><NOTE N="c" PLACE="marg"><HI>L 10</HI> dig. de Ju&s;t. &amp; Jur. Parag. <HI>1.</HI></NOTE>; To live &s;oberly, not to hurt another, to give every one his own. The fir&s;t duty concernes our own &s;elves, and is the fruit of Mode&s;ty, forbidding us to doe any thing whereby we may &s;eem lewd or vitious; nor to &s;hew any kind of di&s;&s;olutene&s;&s;e either in our &s;peech, habit or man|ners, and to refraine from any act, <HI>quod vel nos commaculet &s;o|los,</HI> &s;ayes<NOTE N="d" PLACE="marg">D. l. <HI>10.</HI></NOTE> <HI>Cujacius,</HI> that is, which may &s;tain our per&s;ons, though none be privy to it but our &s;elves The other two are the pro|per effects of Temperance and Ju&s;tice, and owing to others, whom we are to live, conver&s;e and deal with; teaching us to ab|&s;tain 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 puni&s;hment; and to make full &s;a|tisfaction
<PB N="49" REF="32">for dammage or detriment done to others through our meanes. Again, though Laws very rarely continue, when the &s;tare of Government comes to be quite changed; as it fell out in the <HI>Roman</HI> &s;tate at fir&s;t, long before the time of the <HI>Civil Law:</HI> where<NOTE N="e" PLACE="marg"><HI>L. 2.</HI> Dig. de Orig. Jur.</NOTE> <HI>Pomponius</HI> writes, that <HI>Exactis Regibus, omnes leget Regiae ex-leverunt, iterumque caepit Populus Romanus in|certo magis jure &amp; con&s;uetudine aliqua uti, qu&agrave;m perlata lege, i&agrave;que prope vig nti annis p &s;&s;us e&s;t:</HI> Kings being driven out of the Empire, their Lawes pre&s;ently cea&s;ed, and the people of <HI>Rome</HI> did again begin to be governed, partly by arbitrary di&s;|cretion, and partly by cu&s;tome, rather then by any written Law, and &s;o continued for twenty years together: And &s;o it comes to pa&s;&s;e, that new Lawes are alwaies prepared to &s;uit with a new Government. Yet upon no change what&s;oever, are meer rati|onall Lawes repealed, or grow out of u&s;e.</P>
<P>The rea&s;on hereof is, becau&s;e men can never lo&s;e their Na|ture, forgoe their Under&s;tanding, or quit their Rea&s;on. Nei|ther can a &s;uppo&s;ition be admitted, that &s;uch Laws as the&s;e can be un&s;uitable to any Government; for what kind of Government hath been hitherto devi&s;ed by Man, or e&s;tabli&s;hed in any Nati|on, with the which, naturall Equity, or the dictates of right Rea&s;on has not &s;uited? Nay, it &s;hould be rather concluded, there may be a Tyranny, but there can be no government without them.</P>
<P>Hereupon it has been, that no change that ever happened in the <HI>Roman</HI> &s;tate, no nor the overthrow of the State it &s;elf, could take away the force or u&s;e of the <HI>Roman Civil Law,</HI> but that other Nations have a&s;&s;umed it into their territories, and have made it &s;erviceable to their occa&s;ions and wayes of governing, how va|rious and differing &s;oever tho&s;e occa&s;ions and kindes of government have been.</P>
<P>Furthermore, though Lawes with all other worldly things be&s;ides, have their times to waxe old, and as it were decrepite in, according to that of <HI>Claudian.</HI></P>
<Q><L>Firmatur &s;enium juris, pri&s;camque re&s;umunt</L>
<L>Caniciem leges, emendanturque vetu&s;tae,</L>
<L>Acceduntque novae.&mdash;</L></Q>
<PB N="50" REF="33">
<P>Yet tho&s;e Lawes that are in&s;pired by Nature, Rea&s;on, and pure Equity, can never in any time, in all places at once lo&s;e their e&s;teem or u&s;e. The&s;e are the Lawes that carry a clau&s;e of perpetuity with them, they were fir&s;t born with Man, and can never dye before him. It might well be reckoned among&s;t the wonders of the World, that the <HI>Civil Law</HI> made &s;o many hundred years agone, and which has &s;een the &s;poil and over|throw of <HI>Rome</HI> it &s;elfe, and many other States and Empires be|&s;ides, &s;hould &s;till flouri&s;h in the <HI>Europaean</HI> Nations, as if it were but new &s;prung up; but that &s;urely the eminent wi&s;dome and known rea&s;on that is in it, hath given that Law a life as la&s;ting as the World it &s;elfe.</P>
<P>It hath been ob&s;erved of all Arts and Sciences, that there is a kind of circular progre&s;&s;e in them: they have their birth, their growth, their flouri&s;hing, their failing, their fading, and within a while after, their re&s;urrection and reflouri&s;hing again. And <HI>Ari&s;totle</HI><NOTE N="f" PLACE="marg"><HI>1.</HI> Decaele. <HI><GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">.</HI> Mottor.</NOTE> him&s;elf, who held the Arts Eternall, as he did the World, yet tells us, there was alwaies a ri&s;ing and a falling of them as of the Starres, &s;o as &s;ometimes they flouri&s;hed in one place and age, and &s;ometimes in another, as the Starres &s;ome|times &s;hine in our Hemi&s;phere, &s;ometimes in the other. And &s;o it may fare with that Noble and u&s;efull Science of the <HI>Civil Law</HI> in like manner; it may be ob&s;cured and under a dark thick cloud for a while in one place or other, but it can never be irre|coverably lo&s;t every where, but it will &s;till find &s;ome place to pro&s;per in, till at la&s;t it be even courted to return thither from whence it was before expel'd.</P>
<P>La&s;tly, to &s;haw the benefit of clear and rationall Ju&s;tice yet further: As it is of highe&s;t advantage and benefit to a Nation, to purcha&s;e the acquaintance and corre&s;pondence of other Na|tions abroad, as well for traffique &s;ake by exchanging their Com|modities together, as al&s;o to be confoederated by a league with them to be made the &s;tronger, and likewi&s;e for doing all good reciprocall offices each to other; &s;o nothing can more &s;trongly invite forreigners frequently to re&s;ort unto, to trade, deal, and communicate with a Nation, then an a&s;&s;urance that in all their dealings, if difference happen to ari&s;e, they &s;hall receive plain and clear ju&s;tice, fetcht as it were from the very bowells of Hea|ven
<PB N="51" REF="33">and Earth, and grounded upon the very fame rea&s;on they bring into the Nation with them. But if in &s;tead of this fair and civil entertainment, they &s;hall be led into labyrinths of &s;ome|thing call'd Law, where they can di&s;cover no light of that rea|&s;on whereof they partake as men, nor yet any of tho&s;e princi|ples, which in the acts of Ju&s;tice are currant among&s;t all other civill Nations: they will conclude, it is not &s;afe nor honourable to conver&s;e any longer with &s;uch a Nation, but will for&s;ake and abandon it as barbarous.</P>
</DIV2>
<DIV2 N="8" TYPE="chapter">
<HEAD>CHAP. VIII.</HEAD>
<ARGUMENT>
<P>That Chri&s;tian Nations having entertained the Civil Law into their Territories, have thereby acquired to them|&s;elves the mo&s;t rationall Law that hath been ordained, as by the con&s;titutions thereof will appear.</P>
</ARGUMENT>
<P>THus have I laid down the mo&s;t excellent fruits that a Nati|on reaps, by framing for it &s;elfe &s;uch Lawes, as are agree|able to the old and ancient grounds of Rea&s;on in Nature, the Grandmother of all Law, ju&s;tly &s;o &s;tyled. Of the which, the Nations of Chri&s;tendome for the&s;e many hundreds of years, have therefore very plentifully partaken, becau&s;e they have admitted into their Schools and Academies the Study, and into their Tribunalls the u&s;e and practice of the <HI>Roman Civil Law:</HI> for although all publick bu&s;ine&s;&s;e, and the generall affaires of State wherein the intere&s;t of the common welfare lyes, are car|ried on by Laws of each Countreys own making, fitted to time, place, per&s;ons, occa&s;ion, and accidents that doe happen, which the <HI>Civil Law</HI> cannot be made to &s;erve nor &s;uit withall; &s;o va|tious each Nations exigencies and occa&s;ions are: Yet they bor|row their greate&s;t, if not all their light and direction from the <HI>Civil Law,</HI> in &s;etling the contentious bufine&s;&s;e<NOTE N="a" PLACE="marg">Omnia judicia aut di&s;trabenda|rum controver&s;i|arum, aut puni|endorum male&s;i|ciorum cau&s;a re|perta &s;unt. <HI>Cie. pro Caecin.</HI></NOTE> of the Subject, and the matters that ari&s;e in difference betwixt party and party;
<PB N="52" REF="34">their perfecte&s;t Municipall Lawes, having contributed &s;o little towards their determination, that in compari&s;on of what they have made no provi&s;ion at all in, that which they have &s;eemed to provide for, is to be accounted nothing.</P>
<P>Mo&s;t States employ their con&s;ideration mo&s;t upon the publick welfare, and upon &s;uch intere&s;ts as have an univer&s;all effect up|on the whole body, as ea&s;ie&s;t to be &s;een, and requiring but one and the &s;ame remedy for all. But in a numerous multitude, and where their tran&s;actions and dealings with one another are &s;o various, and indeed by different circum&s;tances become infinite; to &s;uit each per&s;ons ca&s;e and bu&s;ine&s;&s;e with a proper and fitting rule to decide it, is a work &s;o void of end or bottome, and pa&s;t fini&s;hing, that no State will &s;et upon the enterprize to begin it; e&s;pecially when the Art and Science of the <HI>Civil Law</HI> has done it to their hands &s;o excellently well, and with &s;o much wi&s;dome, pure rea&s;on, and true naturall equity al|ready.</P>
<P>The <HI>Romans</HI> (who through the largene&s;&s;e of their Empire, and the long continuance of it, had dealings with the greate&s;t part of the World then inhabited and found out, and &s;o had beyond other Nations, the greate&s;t opportunity to &s;ee the won|derfull variety of que&s;tions and controver&s;ies, that fall out be|tween Man and Man in their mutuall tran&s;actions, when &s;uch a numberle&s;&s;e number of them came before their own Judicato|ries) they chiefly minded the regulation of &s;uch matters; the Lawes that are now extant, being almo&s;t wholly taken up in them, and handling the publick very &s;paringly; for of the fifty books of the Dige&s;ts, nine and forty do almo&s;t wholly con&s;i&s;t of the&s;e private controver&s;iall things. They have taken up likewi&s;e all the Code, &s;aving a little of the fir&s;t book of it, &amp; the three la&s;t Books of all. The In&s;titutes are altogether &s;pent herein, except|ing that one Title <HI>De public is Judiciis,</HI> which is the la&s;t of all.</P>
<P>Hereof <HI>Cujacius</HI> and <HI>Duarenus</HI> render this rea&s;on: <HI>Ideo neg|lectum e&s;t jus publicum,</HI> &s;ay they, <HI>quod parum videretur ejus cognitie &s;ingulis e&s;&s;e nece&s;&s;aria, qu&ograve;d de rebus privatis frequenti|ores e&s;&s;ent lites, quodque rar&ograve; de jure publico interrogaretur:</HI> Therefore by the <HI>Roman</HI> Laws &s;o little was declared concerning the publick, becau&s;e the knowledge of &s;uch matters was &s;o little
<PB N="53" REF="34">nece&s;&s;ary for private men, and for that mo&s;t &s;uits were brought for differences betwixt one &s;ubject and another, as al&s;o becau&s;e little advice was asked upon that which concerned the generall welfare.</P>
<P>There is nothing therefore upon which a Controver&s;ie may be rai&s;ed in our dealings with one another in this life, but to ca&s;t the right where it ought to go, there may be found out in the &s;tudy of the Civil Law, that, which though it was a Law to the Romans only, yet has it the force of profound, pure, &s;olid rea&s;on to all other men; &s;o perfect, ab&s;olute, and &s;o rational a Sy|&s;teme is it of all humane affaires and dealings what&s;oever. Nei|ther are we able to prize or e&s;teeme the &s;ingular benefit that hath grown unto the world by the Roman Civil Law, being &s;till extant, as the value thereof de&s;erveth.</P>
<P>For the precepts of Nature, and the rules of Natural Rea&s;on, whereof it aboundeth, are either &s;uch as we of our &s;elves could not ea&s;ily have found out, and then the benefit is not &s;mall to have them readily &s;et down to our hands; or if they be &s;o clear and manife&s;t, that no man indued with rea&s;on can ea&s;ily be ig|norant of them, yet the Law as it were borrowing them from the &s;chool of Nature, to prove other things le&s;&s;e manife&s;t, and to induce a nece&s;&s;ary con&s;equence of &s;omething which were in it &s;elf more hard and dark, unle&s;&s;e it &s;hould in &s;uch &s;ort be clea|red, the very applying of them unto ca&s;es particular, is not without mo&s;t &s;ingular u&s;e and profit many wayes for mens in|&s;truction.</P>
<P>Be&s;ides, be they plain of them&s;elves or ob&s;cure, the evidence of &s;o renowned a Law added unto the natural a&s;&s;ent of rea&s;on concerning the certainty of them, doth not a little authorize and confirm the &s;ame. Wherefore in as much as our actions are conver&s;ant about things be&s;et with many circum&s;tances, which cau&s;e men of &s;undry wits to be al&s;o of &s;undry judgments concer|ning that which ought to be done, beneficial it cannot but &s;eem, that the rule of Civil Law has herein helped our infirmity, whereby we do &s;o well under&s;tand what is right and ju&s;t, and what otherwi&s;e.</P>
<P>Though the fir&s;t principles of the Law of Nature are ea&s;ie, and di&s;cerned generally by all men, yet concerning the duty which
<PB N="54" REF="35">Natures law doth require at the hands of men in a number of things particular, &s;o far hath the natural under&s;tanding even of &s;undry whole Nations been darkned, that they have not di&s;cer|ned, no not gro&s;&s;e inju&s;tice and injury to be &s;o. Whereby it ap|peareth how much we are bound to admire the profound wi&s;|dome, and even honour the memory of the Roman Lawgivers, who have delivered &s;uch a Law to the world; a Law wherein &s;o many things are laid open, cleare, and manife&s;t as a light which otherwi&s;e might have been buried in darkne&s;&s;e, not without the hazard, or rather not with the hazard, but with the certain lo&s;&s;e of the rights of many men and nations.</P>
<P>For albert there is in the Civil Law, as there is and mu&s;t be in all Lawes what&s;oever, a very great intermixture of &s;uch things as are e&s;tabli&s;hed by the voluntary determination, and proceed from the meere will and plea&s;ure of tho&s;e that have ordained them, who might limit Times, Places, Forms, Actions, Rewards, puni&s;hments; &amp; difference Per&s;ons, &amp; might order and di&s;po&s;e of all Circum&s;tances in what way and manner they plea&s;ed, as the Nature, Manners, Government, and Occa&s;ions of the Roman people mo&s;t required, without any re&s;pect to common and uni|ver&s;all Rea&s;on, and are therefore neither obligatory nor u&s;efull to any other State or Nation, as they were to the Roman: yet there is in it a rational and natural part al&s;o, which belongs un|to men as men, or to men as they live in politick &s;ociety, con&s;i|&s;ting of &s;uch common and natural notions, and &s;o ab&s;tracted from &s;uch circum&s;tances which &s;hould change and alter it, that it is alwayes permanent, alike known to all men, or at lea&s;t to the wi&s;er &s;ort of men, obligatory, and u&s;eful every where. And never was there any Humane Law that abounded &s;o 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 po&s;itive, proper and u&s;efull for that State and none el&s;e, or at lea&s;t not fitting to be made a Rule for all people.</P>
<P>By Natural and Rational I under&s;tand that which our own natural under&s;tanding allowes as good, or di&s;allowes as evil, though there were no Law to forbid the one, or to pre&s;cribe the other. And this was the &s;ame, which St. <HI>Paul</HI><NOTE N="a" PLACE="marg">Rom. 2.14.</NOTE> expre&s;&s;es to be
<PB N="55" REF="35">the guide of the Gentiles, that is, of all men naturally. <HI>The Gentiles which have not the Law, doe by nature the things con|tained in the Law;</HI> which &s;hews the work of the Law written in their hearts. Al&s;o that which is commonly received and practi|&s;ed by all men: <HI>In re con&s;en&s;io omnium gentium lex naturae pu|tanda e&s;t;</HI><NOTE N="b" PLACE="marg">Cicer. Tu&s;e. l. <HI>1.</HI></NOTE> what all Nations agree on is to be e&s;teemed natural. <HI>Quod mundus probat, non audeo improbare,</HI> &s;ayes <HI>Baldus,</HI><NOTE N="c" PLACE="marg">Con&s;il. l. <HI>4.</HI> Con&s;il. <HI>496.</HI></NOTE> I dare not que&s;tion that which is generally allowed of.</P>
<P>Likewi&s;e I account that natural and rational which is nece&s;|&s;ary and behoofefull for tho&s;e that lead their lives in any well|ordered &s;tate of government, and without which we take away all po&s;&s;ibility of a &s;ociable life in the world.</P>
<P>Further, that ju&s;tice may well be e&s;teemed natural and ratio|nal, which is &s;quired by and accommodated to the nature of the thing in que&s;tion, as it is defined, and as it generally pa&s;&s;es in the account of all, or at lea&s;t the mo&s;t knowing men.</P>
<P>Neither do I account that only to be natural &amp; rational which was &s;o when the fir&s;t foundations of the world were laid, &amp; man became inhabitant thereof; for then all things were common, and men were not gathered into civil &s;ocieties; neither was there any di&s;tinction of Nations, nor any Co~tracts, no waging War, nor leading Captive, nor &s;ervitudes, nor conjunction of Dwellings, nor any limits &s;et to the property of each Man &amp; Nation, as we &s;ee at this day. Therefore that mu&s;t be looked upon as natural and rational, which &s;uits with the pre&s;ent &s;tate of affairs, as they now &s;tand in the world at this time: for though the Natural Law be alwaes the &s;ame, yet &s;ome parts of it are primely nece&s;|&s;ary, others by &s;uppo&s;ition and accident, and both are of the &s;ame nece&s;&s;ity, that is, equally nece&s;&s;ary in the &s;everal ca&s;es. Thus, to obey a King is as nece&s;&s;ary and naturally rea&s;onable as to obey a Father, though the fir&s;t Governour of all; that is, &s;uppo&s;ing there be a King, as it is certain naturally a man can|not be, but a Father mu&s;t be &s;uppo&s;ed. If it be made nece&s;&s;ary that I promi&s;e, it is al&s;o nece&s;&s;ary that I perform it; for el&s;e I &s;hall return to that inconvenience which I &s;ought to avoid, when I made the promi&s;e: And though the in&s;tance be very fat removed from the fir&s;t nece&s;&s;ities and accidents of our
<PB N="56" REF="36">prime being and production; yet the rea&s;on &s;till pur&s;ues us, and natural rea&s;on reaches out to the very la&s;t minutes, and or|ders the mo&s;t remote particulars of our well being.</P>
<P>Moreover, be&s;ides the natural and rational part before &s;po|ken of, which either &s;imply concerneth men as men, or which belongeth unto them as they are men linked with others in &s;ome form of politick &s;ociety; there is another &s;ort thereof, which &s;erves to order and direct all &s;uch &s;everal bodies politick, &s;o far forth as one of them hath publick co~merce with another: for although civil &s;ociety doth more content the nature of man than any private kind of &s;olitary living, becau&s;e in &s;ociety this good of mutual participation is &s;o much larger than otherwi&s;e: yet we are not &s;atisfied herewith, but we covet (if it might be) to have a kinde of &s;ociety and fellow&s;hip with all mankind. And therefore <HI>Themi&s;tius</HI> &s;peaking to <HI>Valens</HI> the <HI>Roman Emperour,</HI> he told him,<NOTE N="d" PLACE="marg">Grot. Proleg. lib. de ja. bell. &amp; pac.</NOTE> that Kings if they would act by the rule of true wi&s;dome, they mu&s;t, <HI>non unius &s;ibi creditae gentis habere ra|tione~, &s;ed totius humani generis, &amp; e&s;&s;e non</HI> <GAP DESC="foreign"> <HI>tant&ugrave;m, aut</HI> <GAP DESC="foreign">, <HI>&s;ed</HI> <GAP DESC="foreign">, not take care of their own peo|ple onely, but bear a tender regard towards all &s;ocieties and companies of men what&s;oever, and be lovers of men generally, not of the <HI>Macedonians</HI> or <HI>Romans</HI> onely. And &s;urely God in his wi&s;e di&s;po&s;al of all things here below, would therefore not &s;uffer any one part of the earth to be enriched with all his worldly benefits and ble&s;&s;ings, but cho&s;e rather to &s;prinkle them up and down, making one nation to abound with one thing, another with another, but none to po&s;&s;e&s;s all things; that there|by the &s;everal &s;ocieties of men &s;tanding in need of one another, might be driven to &s;eek &amp; pre&s;erve one anothers friend&s;hip and corre&s;pondence, if it were but to purcha&s;e the&s;e outward tem|poral things, and to gain tho&s;e great advantages which are to be had onely in a combined multitude, and for which a &s;ingle Na|tion is too weak and impotent. <HI>Nulla e&s;t tam valida civitas,</HI> &s;ayes <HI>Grotius,</HI><NOTE N="e" PLACE="marg">In Proltgom.</NOTE> <HI>quae non aliquando aliarum extra &s;e ope indigere po&s;&s;it, vel ad commercia, vel etiam ad arcendas multarum exter|narum gentium junctas in &s;e vires; unde etiam &agrave; potenti&s;&s;imis populis &amp; regibus &s;oedera appeti videmus.</HI> There is no countrey &s;o &s;trongly fortified within it &s;elf, but that it may at one time or
<PB N="57" REF="36">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 el&s;e to &s;ecure them&s;elves again&s;t a collected force that is about to invade them. Hence we often &s;ee, even mighty Princes and people &s;o &s;trongly &s;ollicit to be in league with o|ther States.</P>
<P>This naturall inclination that is in the men of the World, to have the knowledge of, and acquaintance and friend&s;hip each with other, how farre di&s;tant &s;oever they be, did appear &s;o much in <HI>Socrates,</HI> that he profe&s;&s;ed him&s;elfe a Citizen, not of this or that Common-wealth, but of the World. And an effect of that very naturall de&s;ire in us (a manife&s;t token that we wi&s;h after a &s;ort an univer&s;all fellow&s;hip with all men) &s;hewes it &s;elfe by the wonderfull delight men have, &s;ome to vi&s;it forreigne Coun|treyes, &s;ome to di&s;cover 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 traf|fique &s;ake, or to the end that when many are Confoederated, each may make the other more &s;trong; but for &s;uch cau&s;e al&s;o as moved the Queen of <HI>Sheba</HI> to vi&s;it <HI>Solomon;</HI> and in a word, becau&s;e Nature doth pre&s;ume, that how many men there are in the World, &s;o many Gods as it were there are, or at lea&s;twi&s;e &s;uch they &s;hould be towards Men. Further, this conver&s;ing with forreigne States gets us an opportunity to di&s;cerne their inclinations, know their &s;trength and riches, or find their weakne&s;&s;e, and &s;ometimes to di&s;cover their &s;ecret machinations again&s;t our &s;elves.</P>
<P>Thus whil&s;t we travaile and &s;end out into other Nations, in pur&s;uit of our &s;everall ends and intere&s;ts, we fall at length to contract, exchange, tran&s;port, and &s;o by degrees e&s;tabli&s;h a fixed trade for return of commodities each to other. This draws on firme leagues of amity and friend&s;hip, capitulations to fight again&s;t our common enemies, and mutually to defend our &s;elves. And this cannot be tran&s;acted without the help of Emba&s;&s;ies, and the mediation of Mini&s;ters, by whom the mindes of both are made known, and our agreements &s;ealed and confirmed. Sometimes injury is done by our neighbour Nations, or their &s;ub|jects, either in &s;taying our Ships, &s;eizing our goods, re&s;training
<PB N="58" REF="37">our per&s;ons, or protecting the publick and declared enemies of the Nation, which cau&s;eth us to demand redre&s;&s;e and reparati|on. Which if it be denyed or delayed us, if the offence comes from particular men, we right our &s;elves upon &s;ome &s;ubjects onely by way of reprizall; if from the State it &s;elfe, or the mo&s;t con&s;iderable part thereof, then followes the denouncing of o|pen Warre, and all the concomitants thereof. Be&s;ides, when di&s;turbances at home are outragious, and over-violent, we are &s;ometimes driven to call in forrreign fores to appea&s;e them.</P>
<P>Moreover, if there be any Nation that grows &s;o great in do|minion, &s;trength, and riches, as to &s;trike terrour and amaze|ment into all the neighbour Nations round about it, &s;o as they may ju&s;tly fear they &s;hall become a prey to their luxuriant power and greatne&s;&s;e, to proclaime open Warre again&s;t &s;uch a Nation, or to kindle the fire of di&s;&s;en&s;ion and civil di&s;cord with|in her own bowells, or to &s;et 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,<NOTE N="a" PLACE="marg">Principum at civitatum impe|ria &s;tabiliora &s;unt, &amp; ab inju|ria finitimorum tutiora, c&ugrave;m &s;oci|etates ac faedera &s;ic contrabuntur, ut aequabilis quaedam cx om|nibus potentia exi&s;tat. <HI>Bodin. de rep. l. 5. c. 6.</HI></NOTE> and by &s;ome a lawfull way of Anticipation<NOTE N="b" PLACE="marg">Sunt qui neu|trarum partium &s;e e&s;&s;e verbo detlavant, re tamen faces utri&s;que ad bellum inflemmandum elam &s;uppe|ditant: ferendum illud quidem quodammodo, &s;i &s;uae &s;aluti aliter con&s;ulere non po&s;sint. <HI>Bodin. de rep. lib. 5. cap. 6.</HI></NOTE>. Which whether it be or no, it is not proper here to determine. But &s;ure I am, to be regardle&s;&s;e of &s;uch an over-&s;preading Neighbour, were a token of great impro|vidence and &s;tupidity. And it were but needfull for the le&s;&s;er States to confoederate and combine together, and to make joynt preparations to oppo&s;e her, in ca&s;e &s;he &s;hall offer to mole&s;t any one of them; for &s;o active is Man by nature, that where a &s;uf|ficient power to hurt is pre&s;ent, it is &s;eldome &s;een that Will is wanting<NOTE N="c" PLACE="marg">Una est tenuium adver&s;us potentiores &s;ecuriatis cautio, ut &s;cilicct potentes, &s;i necert velint, non po&s;&s;int; c&ugrave;m nocendi voluntas ambitio&s;is bominibus &amp; imperandi cupidis nunquam &s;it defu|sure. <HI>Bodin. de. rep. lib. 5. cap. 6.</HI></NOTE>.</P>
<P>Al&s;o, &s;ince it is neither honourable nor advantageous for any young Prince to intermarry even with the Noble&s;t or Riche&s;t of his own Subjects, he mu&s;t of nece&s;&s;ity fit him&s;elf out of the Roy|al Families of other Princes; here therefore they mu&s;t be &s;een, known, and dealt with al&s;o. Be&s;ides a free and open recour&s;e to
<PB N="59" REF="37">forreigne parts, is &s;o ab&s;olutely nece&s;&s;ary to the very being of a Nation, that we &s;ee oft-times the re&s;traint and &s;hutting up thereof in point of trading, does &s;o exa&s;perate and incen&s;e a people, that the whole frame is ready to be di&s;&s;olved, and the Subjects ready to rend one another in pieces, not &s;paring to di&s;|charge their anger even upon the very Prince him&s;elfe.</P>
<P>The&s;e and &s;uch like in&s;tances doe demon&s;trate, how, not on|ly advantageous, but unavoidable it is, for &s;everall and divided Kingdomes to corre&s;pond, act, and negotiate each with other: which it is not po&s;&s;ible for them to doe, but that controver&s;ies both various and difficult, and which mainly concern their &s;everall intere&s;ts, even to no le&s;&s;e value &s;ometimes then whole Kingdomes, will fall in, that mu&s;t be debated, and mu&s;t have &s;ome determination. And when every thing el&s;e has a Law to guide it, and a rule to examine and try it by, in&s;omuch as no one &s;ociety, or petty Common-wealth can &s;tand without &s;ome Law; the like nece&s;&s;ity mu&s;t there needs be of a Law to main|tain and order the communion of Nations corre&s;ponding and acting together. <HI>Si nulla e&s;t communit as quae &s;ine jure con&s;er|vari po&s;&s;it, quod memorabili latronum exemplo probabat Ari&s;to|teles; certe &amp; illa quae genus humanum aut populos complures inter &s;e colligat, jure indiget,</HI> &s;ayes<NOTE N="d" PLACE="marg">In Prolegom.</NOTE> <HI>Grotius:</HI> If there be no a&s;|&s;ociation which can be held up without &s;ome Law, as <HI>Ari&s;totle</HI> hoth proved by an argument drawn from that clo&s;e partner&s;hip which is u&s;ually among&s;t Theeves and Highway-men; then &s;ure|ly is there want of a Law to direct that grand fellow&s;hip, which linkes all mankind, or divers States together. And again,<NOTE N="e" PLACE="marg">Grot. ibid.</NOTE> <HI>Si|cut cuju&s;que civitatis jura utilitatem &s;uae civitatis respiciunt, ita inter civitates aut omnes aut plera&s;que ex con&s;en&s;u jura quae|dam na&s;ci potuerunt, &amp; nata apparet, quae utilitatem re&s;piciciunt non coetuum &s;ingulorum, &s;ed magnae univer&s;itatis;</HI> As the Laws of every particular Common-wealth are made for the benefit thereof, &s;o &s;ome certain Lawes might be and were certainly a|greed upon by all or mo&s;t of the Nations of the world, which &s;hould conduce to the welfare, not of any one people, but of the great communion of all men.</P>
<P>Now the Law that guideth tho&s;e tran&s;actions which are u|&s;ually ob&s;erved to ari&s;e between grand Societies, is the Law of
<PB N="60" REF="38">Nations: which is mo&s;t naturall and rationall in its kind too, being grounded at fir&s;t upon a common nece&s;&s;ity that lay upon all Nations, to have reciprocall dealings and negociations with one another, &amp; which the very Nature of tho&s;e &s;everal dealings, and Rea&s;on it &s;elfe dictates as nece&s;&s;ary to be ob&s;erved, &s;o that without it &s;uch communion could not long endure.</P>
<P>Under the regulation hereof comes Emba&s;&s;ies, courteous en|tertainment of forreigners and &s;trangers, Laws of Arms, free|dome of Traffique, right of Contracts, free pa&s;&s;age through each others Borders, Reprizalls, the pre&s;erving and redemption of Captives, Leagues, Truces, Articles, and &s;uch like. The &s;trength and vertue of which Law is &s;uch, that a people can with as little &s;afety violate it by any act, how advantageous &s;oever it may &s;eem to be to the whole Body<NOTE N="f" PLACE="marg">Qui civium rationem haben|dam dicunt, ex|terorum negant, hi communionem &amp; &s;ocictatem humani generis dirimunt. <HI>Cicer.</HI></NOTE>, as a private man can, in hope to benefit him&s;elfe, infringe the Law of his Countrey. <HI>Sicut civis qui jus civile perrumpit utilitatis prae&s;entis cau&s;a, id convellit quo ip&s;ius po&s;teritati&s;que &s;uae perpetuae utilitates con|tinentur; &s;ic &amp; populus jura naturae gentiumque violans, &s;uae quo|que tranquillitatis in po&s;terum re&s;cindit munimenta</HI><NOTE N="g" PLACE="marg">Grot. in Pro|legom.</NOTE>: As a Sub|ject tre&s;pa&s;&s;ing again&s;t the Law for a pre&s;ent advantage, brings the future happine&s;&s;e of him&s;elfe and po&s;terity into hazard, &s;o a people that &s;hall trample upon the Law of Nature and of Na|tions, &s;trips it &s;elfe of the onely pre&s;ervative of their peace and &s;afety. 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 &s;tate of one Countrey, any man may accu&s;e upon a publick crime, &s;o in the &s;tate of the World, any people may pro&s;ecute a common offence: for as there is a civil bond among all the people of one Nation, &s;o is there a naturall knot among all men in the world, which &s;hould it be once di&s;&s;olved, it mu&s;t needs endanger the whole frame of that communion. Nay, of &s;uch power and praeeminence is the Law of Nations, that no par|ticular Nation can lawfully prejudice the &s;ame by any their &s;e|verall Laws and Ordinances,<NOTE N="h" PLACE="marg">Si Princeps velit vel jus gentium prima|rium vel &s;ecun|darium intra &s;ui imperii limites abrogare, pote&s;ta|te &s;ue abuti cen|&s;endus e&s;t. <HI>Bar. bo&s;. Collect. in c. 9. di&s;t. 1.</HI> nn. <HI>6.</HI></NOTE> more then a Man by his private re&s;olutions, 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 &s;everall part of the &s;ame body, &s;o there is no rea&s;on that any one Com|mon-wealth
<PB N="61" REF="38">of it &s;elfe, &s;hould to the prejudice of another, an|nihilate that whereupon the whole world hath agreed: for which cau&s;e, the <HI>Lacedaemonians</HI> forbidding all acce&s;&s;e of &s;tran|gers into their Coa&s;ts, are in that re&s;pect both by<NOTE N="i" PLACE="marg">Lib <HI>2.</HI> Cont. Appion</NOTE> <HI>Jo&s;ephus</HI> and<NOTE N="k" PLACE="marg">Lib. <HI>9.</HI> de &s;a|nand. Graec. affect.</NOTE> <HI>Theodoret</HI> de&s;ervedly blamed, as being enemies to that ho&s;pitality, which for common humanities &s;ake all the Nations on earth &s;hould embrace.</P>
<P>And the <HI>Roman Civil Law</HI> is of &s;ingular u&s;e to teach and in|&s;truct in this Law too. <HI>Grotius</HI> the Ornament of his Age and Nation for learning and wi&s;dome, undertaking in his mo&s;t &s;in|gular Book <HI>De juri belli &amp; Pacis,</HI> to &s;et down the &s;everall heads of that Law which &s;erves to direct tho&s;e great tran&s;acti|ons of Peace and Warre between Nation and Nation, and to reconcile their differences, profe&s;&s;es to have borrowed to|wards the perfecting of that admirable worke, much from the Books of the <HI>Civil Law,</HI> becau&s;e, &s;aith he,<NOTE N="l" PLACE="marg">In Prolegom.</NOTE> <HI>Rationes &s;aepe op|timas &s;uppeditant ad demon&s;trandum id quod juris e&s;t naturae; &amp; eidem juri, neque minus gentium juri te&s;timonium &s;aepe praebent;</HI> They often make very clear di&s;coveries of what is the Law of Nature, and doe give frequent in&s;tances both of that, and of the Law of Nations al&s;o.</P>
<P>And indeed the Law of Nations is no more then that naturall Rea&s;on which Nations doe owe, and are bound to render each to other, whil&s;t they corre&s;pond and act together, be it in Peace or Warre; and but the very &s;ame which private men ought to practice among&s;t them&s;elves in their private dealings. Which moved Mt. <HI>Hobbs</HI><NOTE N="m" PLACE="marg">Lib. de Civ. cap. <HI>14.</HI> art. <HI>4.</HI></NOTE>, when for illu&s;tration &s;ake he di|vided the Naturall Law, <HI>in naturalem hominum, &amp; naturalem civitatum,</HI> into that of private Men and that of Nations, to adde, that <HI>praeoepta utriu&s;que eadem &s;unt; &s;ed quia civitates &s;emel in&s;titutae induunt proprietates hominum per&s;onales</HI><NOTE N="n" PLACE="marg"><HI>L 76.</HI> Dig. de Judic. l. <HI>56.</HI> dig. de U&s;ufrust. Popule re&s;pectu tetius generis humant priva|torum locum ob|tinent. <HI>G<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ot. Mare lib. c. <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">.</HI></NOTE>, <HI>lex quam, loquentes de hominum &s;ingulorum officio, naturalem dieimus, ap|plicata totis civitalibus, nationibus five gentibus, vocatur jus Gentium:</HI> The precepts of both are but one and the &s;ame; but &s;aith he, becau&s;e &s;everall Common-wealths once &s;etled are but as &s;o many private men; the &s;ame Law which in reference to &s;ingle men we terme Naturall, being applyed to whole States, Nations and people, is call'd the Law of Nations, their duties
<PB N="62" REF="39">being indeed both alike: for what one man ought to render to another, the &s;ame ought one Nation to render to another al&s;o.</P>
<P>So that although what ever we read of in the Text of the Civil Law, was not intended by the <HI>Roman</HI> Legi&s;lators, to reach or direct beyong the bounds of the <HI>Roman Empire,</HI> neither could they pre&s;cribe any Law to other Nations which were in no &s;ub|jection to them, and even tho&s;e Lawes that doe treat of Military matters, Pri&s;oners of Warre, Emba&s;&s;ies, and &s;uch like, doe but direct what Order &amp; Di&s;cipline &s;hall 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 &s;hall upon returne be re&s;tored; and how free from being Sued or mole&s;ted, Emba&s;&s;adours that come from their own Provin|ces, not from forreigne States to <HI>Rome,</HI> &s;hould be; and &s;o all tho&s;e con&s;titutions and &s;uch like, have &s;till looked homewards, and no further, as<NOTE N="o" PLACE="marg">Lib <HI>1.</HI> de jur. Bill. cap. <HI>1.</HI></NOTE> <HI>Albericus Gentilis</HI> has truly ob&s;erved: Yet &s;ince there is &s;uch a &s;trong &s;tream of Natural Rea&s;on continually flowing in the Channell of the <HI>Roman</HI> Lawes, and that there is no affaire or bu&s;ine&s;&s;e known to any part of the World now, which the <HI>Roman Empire</HI> dealt not in before, and their Ju&s;tice &s;till provided<NOTE N="p" PLACE="marg">A Romanis ad omnes populos Juris faecialis to|tiu&s;que ju&s;titiae fontes puri&s;&s;imi manarunt. <HI>Bodin. de rep. lib. 5. cap 6.</HI></NOTE> for; what &s;hould hinder, but that the nature of af|faires being the &s;ame, the &s;ame generall rule of Ju&s;tice and di|ctates of Rea&s;on 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 tho&s;e of one and the &s;ame Nati|on, when one common Rea&s;on is a guide and a light to them both? for it is not the Per&s;ons, but the Ca&s;e, and the Rea&s;on therein that is con&s;iderable altogether. How came the old Law given to the <HI>Jewes</HI> to be in &s;ome mea&s;ure obligatory to the Chri&s;tians coming &s;o long after, and to be of force &s;till, and will be as long as the World endures, but becau&s;e, be&s;ides the ceremoniall and judiciall part thereof, (which was ob&s;ervable by the Jewes onely, and is now abrogated, in as much as it had but a temporary cau&s;e of Gods ordaining it) there was al&s;o a Na|turall and a Morall part incorporated in it, which all Nations and Men are bound to fulfill and keep, and can never cea&s;e? <HI>Haec pars legis vivit,</HI> &s;ayes<NOTE N="q" PLACE="marg">De Legib lib: <HI>9.</HI> cap. <HI>11.</HI> nu. <HI>22.</HI></NOTE> <HI>Suarez, non tamen quia legis Moy&s;is
<PB N="63" REF="39">pars, &s;ed quia naturae lex e&s;t, &amp; novae legis pars, vivetque in &s;empiternum:</HI> This part of the Law remains in force, but not becau&s;e it was a part of <HI>Mo&s;es</HI> his Law, but becau&s;e it was given fir&s;t by Nature, and the new Law has &s;ince confirmed it, and the authority thereof &s;hall remaine for ever.</P>
<P>So and in like manner, there is in the <HI>Roman Civil Law</HI> a cir|cum&s;tantiall and a po&s;itive part, which was a Law to the <HI>Romans,</HI> and by them to be obeyed, but neither of force or u&s;e to others, being made for that people, climate, and government onely. But there is in it too a Law whereunto by the light of Rea&s;on men find them&s;elves bound in that they are Men; a Law by compo&s;ition, for multitudes and politick &s;ocieties of Men to be guided by; a Law that may be applyed to the communion and fellow&s;hip of all Mankind, or divers Nations linked in amity and friend&s;hip together; and this part of the Law is naturall, perpetuall, belonging not to the <HI>Romans</HI> onely, but to all Nati|ons and Men; neither can it have any cau&s;e of change, when that which gave it its fir&s;t in&s;titution remaineth for ever one and the &s;ame.</P>
<P>Yet as the <HI>Civil Law</HI> is <HI>Roman,</HI> it is of no validity, but as it is naturall only: for as it was <HI>Roman,</HI> it extended not beyond the bounds of the <HI>Roman Empire,</HI> nor did it take care for any other People or Nation but the <HI>Roman</HI> onely, nor could the com|manding power thereof endure longer then the Empire it &s;elfe la&s;ted. But when it treats and di&s;cu&s;&s;es &s;uch matters as are com|mon to all mankind, and not onely the <HI>Roman</HI> Nation did, but all Nations and People doe &s;till deal in; as of contracts of all kindes, both at Land and at Sea, di&s;po&s;itions te&s;tamentary, &s;uc|c&s;&s;ions in decea&s;eds E&s;tates where no Will is made, good of|fices done at anothers charge or detriment; of the relations between Father and Son, Husband and Wife, Ma&s;ter and Ser|vant, Governours and Governed, Magi&s;trates &s;upreme and &s;ub|ordinate; of matters of property and po&s;&s;e&s;&s;ion, injuries done to the per&s;ons, or &s;candalls to the credit, or dammages done to the goods of Men; of &s;ervitudes due from Hou&s;es or Lands to other Hou&s;es, Lands or Per&s;ons, Crimes and Offences of all &s;orts, and the puni&s;hments greater or le&s;&s;er that attend them; explanation of Lawes or Statutes, or of any ob&s;cure clau&s;e in any
<PB N="64" REF="40">Contract, Speech or Writing what&s;oever; of Cu&s;tomes and other publick duties payable to the Exchequer, Authorities, Powers or Commi&s;&s;ions granted to others: Deeds of free gift, Writings obligatory, In&s;truments, Pattents, Charters, pri|viledges in Writing or by pre&s;cription; Cu&s;tomes and pre|&s;criptions to take away or dimini&s;h the right and property of others: of reparations upon fraud, non-age, ab&s;ence, or other impediments unavoidable and nece&s;&s;ary; Nu&s;ances done in publick places or High-wayes, or from one Hou&s;e to another, ob&s;tructions in Rivers or Water-cour&s;es, Mortgages in Law as well as Fact: of goods lo&s;t in Ships, Taverns, Inns, or delivered to Carriers to convey to other places, or left with other Men to keep; &s;ervices due to the Common-wealth; patrimoniall, per&s;onall, and mixt, Souldiers, and the exemptions and di&s;cipline belonging to them: Of judiciall Tryalls in all the&s;e ca&s;es and many more, where the quality of the Judge, his kind of Juri&s;|diction, the manner of Tryall, the Officers a&s;&s;i&s;ting, the kind of Evidence, the Judgement, the Execution thereof, or remedy by way of Appeale come to be con&s;idered: I &s;ay, when the con&s;ideration of the&s;e &s;everall matters is as incident to all other Nations and times that live under Order and Government, as it was to the <HI>Roman,</HI> and that there be delivered and laid down in the <HI>Roman Civil Law</HI> &s;uch rules and dictates as are mo&s;t naturall, e&s;&s;entiall, and nece&s;&s;ary to be ob&s;erved in each of them; it mu&s;t needs be, that the u&s;e of the <HI>Roman Civil Law</HI> in the&s;e particulars, as to the matter of it, can neither be locall nor temporary, neither be limited to that Empire, nor determine with it, but mu&s;t be of u&s;e every where and for &s;o long time as the bu&s;ine&s;&s;e to which tho&s;e rules are applyed, comes to be acted and dealt in, which will be as long as the World it &s;elfe endures, and untill men leave to traffique and conver&s;e with one another.</P>
<P>Now as in the matters before &s;pecified, the difference that a|ri&s;es may be &s;ometimes between the publike and &s;ome private per&s;on, &s;ometimes between one private man and another with|in the &s;ame Nation; &s;o it may be al&s;o between a &s;ubject and a &s;tranger, or, between &s;trangers only, or between Nation and Na|tion; and yet the &s;ame mea&s;ure of ju&s;tice will hold and &s;erve for all. For look what ju&s;tice may be rightly afforded between one
<PB N="65" REF="40">man and another upon the generall rule of naturall equity and right rea&s;on, the &s;ame may as warrantably be di&s;pen&s;ed between one Nation and another, as oft as any variance happens between them.</P>
<P>And hence it is that all tho&s;e Writers that handle and treat of tho&s;e controver&s;iall things, which frequently come to be di|&s;puted between one Nation and another, as they are all Civili|ans, &s;o though they doe make u&s;e of other authorities be&s;ides, yet the &s;tronge&s;t and mo&s;t convincing arguments that they bring to re&s;olve them by, are fetcht from the generall rules of Equi|ty and right Rea&s;on &s;et down in the Civil Law. And were it not for them, we had no certainty to re&s;t upon, nor any peace|able determination could be made of &s;uch controver&s;ies, but the &s;harpe&s;t Sword mu&s;t be drawn out to cut the knot a&s;under: For what can Hi&s;tories and the examples drawn from them doe to|wards a compo&s;ure? <HI>Errant, qui quod exemplo fit id etiam ju|re fieri putant,</HI> &s;ayes<NOTE N="r" PLACE="marg">De ju. &amp; offic. Bellic. lib. <HI>1.</HI> ca. <HI>2</HI></NOTE> <HI>Ayala</HI> out of <HI>Cicero;</HI> 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 in|&s;ufficient, <HI>Sana ratio exemplis anteponitur,</HI> &s;ayes<NOTE N="s" PLACE="marg">De ju. Bell. lib. <HI>2.</HI> ca. <HI>18.</HI></NOTE> <HI>Albericus Gen|tilis;</HI> Sound rea&s;on is far above examples. Be&s;ides, the in|tegrity and truth of Hi&s;tories is que&s;tionable, <HI>Saepe tempori, &s;aepe affectibus &s;erviunt;</HI> and they too too often afford examples con|trary each to other.</P>
<P>And moreover, by as it were a generall con&s;ent of Nations, there is an appealing to, and a re&s;ting in the voice and judge|ment of the Civil Law, in the&s;e ca&s;es between Nation and Nati|on. The rea&s;on whereof is, becau&s;e any thing that is irrationall. unnatural, ab&s;urd, partial, inju&s;t, immode&s;t, ignoble, treacherous or unfaithfull, that Law abhorreth; and for that it is the mo&s;t perfect image and repre&s;entation of Nature, and of the Equity and Rea&s;on Nature pre&s;cribes to humane actions, that was ever yet pre&s;ented or &s;et forth to the World in a Law. And there|fore who&s;oever will ob&s;erve the &s;tyle of the Imperiall Law, he &s;hall find it lea&s;t of all to run in this &s;train; <HI>Sancimus, Man|damus, praecipimus, jubemus, imperamus, volumus;</HI> We decree, command, will, enjoyn, enact, or in the like imperious and com|manding way, but mo&s;t in a gentle, &s;oft, rationall, and a
<PB N="66" REF="41">convincing way, thus; <HI>Non e&s;t aequum. Nulla juris ratio, aut aequitaetis benignitas patitur. Bona fides non patitur. Divin&egrave; ad|modum. Non e&s;t dubium. Nimis grave e&s;t. Non &s;ine ratione. Nihil tam naturale. Naturalem habet intellectum. Dolo facit. Ab&s;urdum e&s;t. Contra bonos mores e&s;t. C&ugrave;m &s;atis inhumanum e&s;t. C&ugrave;m nulla ratio &s;it. Humanitatis ac religionis Ratio. Hu|manitatis intuitu. Humanum e&s;&s;e probamus. Ita nobis cordi pu|dor est. Indignum e&s;t. Iniqui&s;&s;imum e&s;t. C&ugrave;m ratio naturalis. A pleri&s;que prudentum generaliter definitum e&s;t. Improbum qui|dem &amp; crimino&s;um. Periniquum e&s;t. Aequi&s;&s;imum vi&s;um e&s;t. Aequi&s;&s;imum putavit Praetor. Boni viri arbitratu. Juxta arbitri|um boni viri. Hic titulus aequitatem habet naturalem. Hoc edi|ctum &s;ummam habet aequitatem, &amp; &s;ine cuju&s;quam indigna|tione ju&s;ta. &V;t moderatae rationis temperamenta defiderant. Nec verecundiae nec dignitati convenit. Nemo e&s;t qui ne&s;ciat,</HI> and the like, as if nothing were offered for a Law, but what is evident in it &s;elfe, and all men mu&s;t own, and pre&s;ently apprehend to be ju&s;t and equall.</P>
<P>There was never any Law more agreeable to the Divine, and to the rules of Con&s;cience and exact righteou&s;ne&s;&s;e, then that Law. <HI>Tertullian</HI> in his Apologetick again&s;t the <HI>Romans</HI> did ac|knowledg, <HI>Eorum leges ad innocentiam pergere, &amp; de divina lege ut antiquiore, ferme mutuatas;</HI> that their Laws did walk in the way to innocence, and were almo&s;t the &s;ame with the Divine Law. <HI>Philip Melancthon</HI> another Divine and a Prote&s;tant, &s;ayes that and more: <HI>Ad normam effictam in mentibus humanis, &amp; De|calogi voce declaratam atque illu&s;tratam congruunt humanae leges, quae citra controver&s;iam po&s;t Mo&s;aicas caeteris ut antiquitate, &s;ic dignitate; ut auctoritate &s;ic veritatis certitudine; ut rationum &amp; demon&s;trationum evidentia, &s;ic ordinis prae&s;tantia antecellunt:</HI> The <HI>Roman</HI> Lawes, &s;aith he, are made after the likene&s;&s;e of the Decalogue, and do not differ from tho&s;e notions and principles of Rea&s;on which Nature hath implanted in all men. And it is out of all que&s;tion, that &s;etting a&s;ide Gods Law, they are as more ancient, &s;o more renowned; as of higher authority, &s;o truer and clearer in determination; as of a more evident demon|&s;tration and rea&s;on, &s;o of a more excellent rank then other Laws that yet have been.</P>
<PB N="67" REF="41">
<P>Which conformity and likene&s;&s;e of the Civil Law to the Di|vine and Eternall, has been the onely cau&s;e, that the Ca&s;ui&s;ts and Divines that have treated upon ca&s;es of Con&s;cience, and have laboured to teach men what rules they mu&s;t walk by, to doe ju&s;tice, and to execute righteou&s;ne&s;&s;e in their dealings and communications with one another, they doe every where about their books and writings, propo&s;e &amp; &s;et down the very rules and maxims of the Civil Law, as the be&s;t le&s;&s;ons of morality &amp; ju&s;tice, citing the very Lawes them&s;elves, and the authorities of that pro|fe&s;&s;ion; which were incongruous and vain for them to doe, were not their ju&s;tice, equity, and &s;oundne&s;&s;e unque&s;tionable, and their authority beyond all di&s;pute, even in tho&s;e things for which their authority is brought by them. Neither is it they a|lone that &s;et this high e&s;timate upon the authority of the Civil Law, &s;ince the Learned in other faculties doe the &s;ame: with whom there is nothing more frequent, then when the duties of men one towards another in their &s;everall relations come to be &s;et forth, as between Parents and Children, Ma&s;ters and Ser|vants, Husband and Wife, Sovereign and Subject, Magi&s;trates and private Men, Captain and Souldiers, one Citizen with ano|ther; or when the be&s;t rules and advantages are to be laid down for the fir&s;t founding of a Common-wealth, or the keeping of it in &s;afety and &s;plendour; or when the ju&s;tice and convenience of a Law is in que&s;tion; or the actions of Men, even of Princes them&s;elves, be to be approved or condemned: In all the&s;e ca&s;es and the like, nothing I &s;ay is more u&s;uall with Writers of highe&s;t renown for Learning and wi&s;dome, then to fort fie their re&s;olu|tions and dictates one way or other, with the practice and di&s;|cipline of the <HI>Roman</HI> State; and to make the Civil Law their Touch-&s;tone to try all things by, and the be&s;t and mo&s;t appro|ved ballance to weigh them in; judging the authority thereof to be beyond deniall in any thing that it does either defend or di&s;allow, and for &s;uch as it is pre&s;ented, does it pa&s;&s;e currant with all men.</P>
<P>The Civil Law requires that an act &s;hould be worthy and laudable as well as lawfull, that it &s;hould be faire, equitable, ingenuous, and candid, as well as &s;trictly ju&s;t. Subtilties and ni|ceties of words, and tho&s;e <HI>apices juris,</HI> fine&s;&s;es of Law, and
<PB N="68" REF="42">fine-&s;pun webs of Wit, which are oppo&s;ite to integrity and ho|ne&s;t dealing, and which through a preci&s;e form of words and &s;trict propriety of &s;peech, would fru&s;trate what was purely at fir&s;t intended, it will not allow of or endure. <HI>Bonae fidei non congruit de apicibus juris di&s;putare,</HI> &s;ays <HI>&V;lpian.</HI><NOTE N="t" PLACE="marg">l. <HI>29.</HI> Paragt <HI>4.</HI> Dig Mandat:</NOTE> It &s;uits not with &s;incerity, to contend about curio&s;ities: <HI>Sen&s;um non va|na nominum vocabula amplecti oportet,</HI><NOTE N="u" PLACE="marg">l. <HI>2.</HI> Co: <HI>De</HI> con&s;tipecun:</NOTE> The true intended &s;en&s;e and not the bare litteral &s;ignification is to be pur&s;ued. <HI>Scri|ptum &s;equi calumniatoris e&s;t, boni ver&ograve; judicis, voluntatem &s;criptoris autoritatemque defendere,</HI> &s;ays <HI>Gail.</HI><NOTE N="x" PLACE="marg">Lib: <HI>2.</HI> ob&s;: <HI>132. out of</HI> Cicer: pro Cae|tinu:</NOTE> It is the part of a Caviller to keep clo&s;e to words, but of an upright Judge, to uphold the intent and meaning of him that &s;pake them; <HI>Qui pertinaciter &agrave; &s;cripto recedere non vult, pernicios&egrave; errat,</HI> &s;ayes <HI>Peckius;</HI><NOTE N="y" PLACE="marg">Ga: <HI>88.</HI> De reg. ju: in <HI>6.</HI> in in prine:</NOTE> He &s;hall offend perniciou&s;ly, that will grant but what the very words will bear, and will be got to yield no fur|ther.</P>
<P>And therefore the Civil Law which we have now, had it been in being in the third Punick War, when the City of <HI>Car|thage</HI> by a crafty expo&s;ition of words was quite demoli&s;hed by order of the Roman Senate, after they had fir&s;t given their faith to the Carthaginians, in the&s;e expre&s;&s;ions; <HI>Civitatem Carthaginis &s;alvam fore, jura, privilegia, immunitates ea&s;dem habituros quibus antea &s;emper u&s;i fui&s;&s;ent,</HI> The City of <HI>Car|thage</HI> &s;hould be &s;aved, and the &s;ame rights, immunities, and priviledges &s;hould be continued unto them which they always had; would have condemn'd the whole Senate for &s;uch their breach of faith and treachery, though there was not the life of any per&s;on touch'd. For who could doubt, but that the Car|thaginians articling for the &s;afety of the City, did aim and in|tend to have the place pre&s;erved as well as the per&s;ons? And it was a &s;hameful defence to &s;ay, as the Romans did, that when the people of the City were all pre&s;erved and kept alive, the true City was &s;aved, which was as much as they promi&s;ed, though the walls and buildings them&s;elves were de&s;troyed; <HI>Civitatem maenibus urbis minim&egrave; contineri,</HI> The word City does import the Men, and not the Structure or Edifices thereof.</P>
<P>For although in &s;trict propriety of &s;peech there is that nice difference <HI>inter urbam &amp; civitatem, qu&ograve;d urbs aedificia, Civi|tas
<PB N="69" REF="42">incolae &s;int;</HI> yet <HI>legulciorum e&s;t, &s;yllabas &amp; apices aucupari, non militaris &s;implicitatis,</HI> &s;ayes <HI>Albericus Gentilis;</HI><NOTE N="z" PLACE="marg">De jur: Bell: lib: <HI>2.</HI> ca. <HI>4.</HI></NOTE> It is for Lawyers to catch at words, and not for Souldiers, who&s;e plain meaning admits not of &s;uch nice di&s;tinctions. <HI>In fide, quid &s;en|&s;eris non quid dixeris cogitandum e&s;t,</HI> &s;ays <HI>Grotius;</HI><NOTE N="a" PLACE="marg">De ju. B<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ll: lib: <HI>2.</HI> ca: <HI>16.</HI> nu: <HI>1 out of</HI> Tully.</NOTE> Where faith is given, what was meant is to be regarded rather then what was &s;poken. The Plataeans were as fal&s;e and unworthy, when after they had promi&s;ed to &s;end home the Pri&s;oners taken, &s;lew them fir&s;t, and &s;o &s;ent them home dead, <HI>qua&s;i cadavera e&s;&s;ent captivi, &amp; mortuus homo e&s;&s;et homo,</HI> &s;ays <HI>Albericus Gen|tilis;</HI><NOTE N="b" PLACE="marg">d. ca: <HI>4.</HI></NOTE> as if it were to be believed, that the Carka&s;es were the Pri&s;oners them&s;elves, or a man dead could be thought a man. And as deceitful were the Baeotians too, who having ingaged to re&s;tore the City, did deliver it up, not &s;tanding, but ra&s;ed and pull'd down. So was it an act mo&s;t treacherous and fal&s;e in <HI>Alexander,</HI> who fir&s;t gave a be&s;ieged Town an A&s;&s;urance that they &s;hould go forth of the Town &s;afely, and then after they were quite gone forth, and &s;et forward &s;ome part of their way, put them all to the &s;word, <HI>Grotius</HI><NOTE N="c" PLACE="marg"><HI>d ca:</HI> 16. out of <HI>Tully.</HI></NOTE> &s;ays truly, <HI>eju&s;modi frau|dibus a&s;tringi non di&s;&s;olvi perjurium,</HI> by &s;uch fraudulent eva&s;i|&s;ions perjury is rather augmented then wiped away.</P>
<P>In Contracts between Princes or &s;everal States, <HI>exuberantior fides requiritur,</HI> a greater mea&s;ure of &s;incerene&s;s is required, and &s;ubtil interpretations ought to be avoided, and &s;uch a mean|ing ought to be given to their compacts, as not Criticks, but vulgar and plain-dealing men may like of, and which was mo&s;t probably intended by him for who&s;e &s;ake and benefit they were originally made. And in &s;uch fen&s;e Divines do agree all Oaths ought to be taken; <HI>Quacunque arte verborum quis juret, Deus tamen qui con&s;cientiae te&s;tis e&s;t, ita hoc accipit &s;icut ille cui juratur intelligit,</HI> &s;ays <HI>I&s;idore,</HI> cited in the Canon Law.<NOTE N="d" PLACE="marg">c. quacunque cau&s;: <HI>22.</HI> quaest:</NOTE> Let the words by which we &s;wear be never &s;o artificially laid, yet God to whom our mo&s;t &s;ecret thoughts are manife&s;t, takes every oath in &s;uch a &s;en&s;e, as it is under&s;tood by him to whom &s;uch Oath is made. For which cau&s;e St <HI>Au&s;tin</HI><NOTE N="e" PLACE="marg">Epi&s;t: <HI>224,</HI></NOTE> has pronoun|ced them perjured, <HI>qui &s;ervatis verbis, expectationem eorum quibus juratum est, deceperunt;</HI> who having fulfill'd the bare words, have fru&s;trated the true expectation of tho&s;e to whom
<PB N="70" REF="43">they &s;ware. Even as the Civil and Canon Law both, deems them not fulfillers but fraudulent tran&s;gre&s;&s;ours of a Law, that perform the words, but act again&s;t the true intent and mean|ing of it. <HI>Certum e&s;t, qu&ograve;d is committit in legem, qui verba le|gis complectens, contra legis nititur veluntatem:</HI><NOTE N="f" PLACE="marg">l. <HI>5.</HI> Cod. De legi. reg. <HI>88.</HI> De reg. ju. in <HI>6.</HI></NOTE> Who&s;oever keeping &s;trictly to the words of a Law, perverts the intent, does clearly offend again&s;t it. For <HI>Lex non in verbis &s;ed in &s;en&s;u, non in &s;uperficie &amp; foliis verborum, &s;ed in medulla con&s;i&s;tit,</HI> &s;ays <HI>Peckius.</HI><NOTE N="g" PLACE="marg">D. reg. <HI>88.</HI> nu. <HI>7.</HI></NOTE> The Law lies not in the outward bark of the words, but in the pith and marrow, which is the &s;en&s;e.</P>
<P>Likewi&s;e in la&s;t Wills and Te&s;taments, it will have the minde and meaning of the Te&s;tator, if known, to be pur&s;ued, what|&s;oever the proper &s;ignification of the words be. <HI>Non enim in cau&s;a te&s;tamentorum,</HI> &s;ays <HI>Marcellus,</HI><NOTE N="h" PLACE="marg">l. <HI>69.</HI> Parag. <HI>1.</HI> Di de leg. <HI>3.</HI></NOTE> <HI>ad definitionem utique de&s;cendendum e&s;t, c&ugrave;m plerunque abu&s;iv&egrave; loquantur, nec propriis nominibus ac vecabulis &s;emper utantur:</HI> In que&s;tions about Wills, we mu&s;t not flie to that &s;en&s;e that the words will in ex|tremity bear, &s;ince mo&s;t do &s;peak improperly, and they are but few that can deliver them&s;elves in proper and apt expre&s;&s;ions. And therefore &s;ays <HI>Mantica,</HI><NOTE N="i" PLACE="marg">De conject. ult. vol. lib. <HI>3.</HI> Tit. <HI>3.</HI> nu. <HI>1.</HI></NOTE> <HI>Cavendum e&s;t, ne dum nimia &s;ubtilitate verborum utimur, vera judicia defunctorum &s;ubver|tantur;</HI> We mu&s;t take heed, that we do not &s;o preci&s;ely ob|&s;erve the words, as to di&s;appoint the true intentions of him that uttered them. From which &s;entences and &s;ayings of the Civil Law it is clear, that no words, forms, niceties, or pro|priety of language is of any regard in the Civil Law, in com|pari&s;on of truth, faithfulne&s;s and integrity. For <HI>verba monti, non mens verbis &s;ervire debet;</HI> Words were made as in&s;truments to &s;erve and expre&s;s the mind, and not to command or con|troul it.</P>
<P>Further, it takes care to &s;uppre&s;s not onely tho&s;e things which are manife&s;tly evil, but &s;ome things al&s;o which are no otherwi&s;e bad, then as they are illaudable and undecent. <HI>Non omne quod licet hone&s;tum e&s;t;</HI><NOTE N="k" PLACE="marg">l. <HI>144</HI> Dig. De reg. jur.</NOTE> Every thing that is lawful, the Civil Law does not e&s;teem to be hone&s;t. If a Divorced wife Marry again, and by that marriage has a daughter, though &s;he be not daughter in law to the fir&s;t husband, nor any way of kin or allied unto him, &s;ince the fir&s;t marriage was quite di&s;&s;ol|ved,
<PB N="71" REF="43">yet he cannot marry her:<NOTE N="l" PLACE="marg">Parag. <HI>9.</HI> In&s;t. de Nupt.</NOTE> Neither will it allow the father to marry his ba&s;tard daughter; nor the father to marry the &s;ons &s;pou&s;e, nor the &s;on to marry the fathers; the rea&s;on is, <HI>quoni|am in contrahendis matrimoniis naturale jus &amp; pudor inspicien|dus e&s;t;</HI><NOTE N="m" PLACE="marg">l. <HI>14.</HI> Parag. <HI>2.</HI> Di. De rit. nupt.</NOTE> in matrimonial copulations it ought to be con&s;idered, what nature and &s;obriety does allow of; and where it be doubt|ful, whether a marriage may be lawfully had or not, this rule is ever pre&s;cribed; <HI>In re dubia certius &amp; mode&s;tius e&s;t huju&s;modi nuptiis ab&s;tinere;</HI><NOTE N="n" PLACE="marg">D. l. <HI>14.</HI> Par. <HI>3.</HI></NOTE> in an uncertainty it is &s;afe&s;t and mo&s;t mo|de&s;t not to contract &s;uch marriages. So that in &s;ome things, <HI>Quod non vetat lex, hoc vetat fieri pudor;</HI> and as <HI>Bartol</HI><NOTE N="o" PLACE="marg">l. <HI>8.</HI> Dig. De Aliment. leg.</NOTE> has expre&s;&s;ed it, <HI>Non modo obligatio, verum etiam verecundia nos obligat;</HI> There be &s;ome things, which for very &s;hame we mu&s;t forbear to do, though otherwi&s;e the Law will permit us to do them.</P>
<P>The Civil Law tels the very Emperour him&s;elf, that for him to demand a Legacy by a Will that was void, <HI>inverecundum e&s;t,</HI> it was undecent. <HI>Decet enim tantam maje&s;tatem eas &s;ervre leges quibus ip&s;e &s;olutus e&s;&s;e videtur;</HI><NOTE N="p" PLACE="marg">l. <HI>23.</HI> Dig. de legat. <HI>3.</HI></NOTE> It is mo&s;t be&s;eeming his High|ne&s;s for to keep tho&s;e Laws whereof he may &s;eem to be free. And again, <HI>Digna vox e&s;t maje&s;tate regnantis, legibus alligatum &s;e profiteri;</HI><NOTE N="q" PLACE="marg">l. <HI>4.</HI> co. De le|gib.</NOTE> It is language worthy of a Prince, to acknow|ledg him&s;elf bound to Laws. What did <HI>Seneca</HI> in his grave Philo&s;ophical precepts &s;ay more, when he cried out; <HI>Qu&agrave;m angu&s;ta innocentia e&s;t, ad legem bonum e&s;&s;e? quanto lati&ugrave;s officio|rum patet quam juris regula? multa pietas, humanitas, libe|ralitas, ju&s;titia, fides exigunt, quae omnia extra publicas tabulas &s;unt.</HI> How poor is that innocence, to be but as good as the Law requires? How much further does the officious re&s;pects which men owe to one another go, then the letter and rule of Law? How many things be there, which Piety, Humanity, Noblene&s;s, Equity, and Uprightne&s;s do exact, which are out of the provi&s;ion of the Law altogether?</P>
<P>When any thing in Wills, Contracts, Laws, Statutes, or Te&s;timonies, is rendred &s;o doubtful, that it is capable of te|trick and &s;evere as well as a mild and temperate, of an odious as well as a favourable meaning; it does &s;o much affect clemen|cy, gentlene&s;s, and moderation,<NOTE N="r" PLACE="marg">Nihil nobis tam gratum e&s;t qu&agrave;m humani|tas, <HI>&s;ays</HI> Justi|nian <HI>lib 57. co. De Epi&s;copal. audient.</HI></NOTE> that the gentle&s;t and the &s;of|te&s;t
<PB N="72" REF="44">interpretation &s;hall be cho&s;en, and it &s;hall be taken in the milde&s;t and be&s;t &s;en&s;e. What is odious and puni&s;hing, it re|&s;trains and keeps in to the utmo&s;t, and admits of nothing more in that ca&s;e, then the &s;trict propriety of words will enforce. But what is favourable, gracious, and plea&s;ing, it enlarges and widens, by &s;tretching them even to an improper &s;en&s;e and &s;ignification. The&s;e rules therefore and &s;uch like are to be fre|quently met withall. <HI>Semper in dubiis benigniora praeferenda &s;unt.</HI><NOTE N="s" PLACE="marg">l. <HI>56.</HI> Dig. De reg. ju.</NOTE> <HI>Rapienda occa&s;io e&s;t quae praebet benignius respon&s;um</HI><NOTE N="t" PLACE="marg">l. <HI>168.</HI> Dig. eod.</NOTE>. <HI>In re dubia benigniorem interpretationem &s;equi, non minus ju&s;tius e&s;t qu&agrave;m tutius.</HI><NOTE N="u" PLACE="marg">l. <HI>119.</HI> Dig. eod.</NOTE> <HI>In poenalibus cau&s;is benignius e&s;t interpre|tandum.</HI><NOTE N="x" PLACE="marg">l. <HI>155.</HI> Parag. fin. Dig. eod. ca. <HI>49.</HI> ext. eod.</NOTE> <HI>Satius e&s;t impunitum manere facinus nocentis, qu&agrave;m innocentem condemnare.</HI><NOTE N="y" PLACE="marg">l. <HI>5.</HI> Dig. De poen.</NOTE> <HI>Semper in ob&s;curis, quod minimum e&s;t &s;equimur.</HI><NOTE N="z" PLACE="marg">l <HI>9.</HI> Dig. De reg jur.</NOTE> <HI>Odia re&s;tringi, &amp; favores convenit ampliari;</HI><NOTE N="a" PLACE="marg">Ca. <HI>15.</HI> ext. eod.</NOTE> and the like to an infinite number. Not any thing &s;hort of the &s;ame <HI>Seneca,</HI><NOTE N="b" PLACE="marg">Epi&s;t. <HI>81.</HI></NOTE> when he &s;ayes; <HI>Reus &s;ententiis paribus ab&s;olvitur, &amp; &s;emper quicquid dubium e&s;t, humanitas inclinat in melius;</HI> Where the &s;uffrages of a Court are equal, the defendant &s;tands acquitted; and where any thing happens to be doubtful, cle|mency will alwayes pitch upon the gentle&s;t re&s;olution.</P>
<P>Neither does it derogate from the clemency of the Civil Law, that it &s;eems to deal &s;o &s;harply with tho&s;e (again&s;t whom there are grounds enough to &s;u&s;pect them of &s;ome enormous crimes whereof they are accu&s;ed, but not evidence full enough to condemn them) as to allow &s;uch per&s;ons to be<NOTE N="c" PLACE="marg">Dig. &amp; Co. de Quae&s;tion.</NOTE> &s;et upon the Rack, thereby to manife&s;t their innocence by an ob&s;tinate denial, or to di&s;cover their guilt by a plain confe&s;&s;ion. For the onely ground of this au&s;tere proceeding was a great tender|ne&s;s not to take away the lives of any, but upon mo&s;t manife&s;t and undeniable proof; and yet with a care notwith&s;tanding, that for want of &s;uch full and clear proof (which offenders through their &s;ecret workings would alwayes labour to prevent) offences &s;hould not go unpuni&s;hed, to the endangering of the publick peace and welfare of other men.</P>
<P>When a man is criminally accu&s;ed, there are but two wayes to convict him, either by his confe&s;&s;ion, or by proof. As to confe&s;&s;ion; where is it &s;een that he that dares to offend high|ly, when he comes to be examined, does not deny it as boldly?
<PB N="73" REF="44">and who is there that does not excu&s;e him for &s;eeking thus to pre&s;erve him&s;elf? <HI>Igno&s;cendum e&s;t ei qui &s;anguinem &s;uum qualiter qualiter redemptum voluit,</HI> &s;ayes the<NOTE N="d" PLACE="marg">l. <HI>1.</HI> Dig. De honis corum qui ante.</NOTE> Civil Law it &s;elf; that is, He is to be pardoned, meaning as to puni&s;hment, that labours by any means to avoid the &s;hedding of his own bloud. As to proof, the Romans were &s;o tender of the lives and per&s;onal &s;afety of their people, that to convict a man by proof it was no ea&s;ie thing, but very difficult; for they would neither inflict any corporal puni&s;hment, nor condemn any man to death, as &s;ome Chri&s;tian States do at this day, upon the te&s;timony of one &s;ingle witne&s;s, though pre&s;ent when the act was done.<NOTE N="e" PLACE="marg">Gomez. var. re&s;el. Tom. <HI>3.</HI> ca. <HI>12.</HI> De Probat. delict.</NOTE> And in this it did exactly follow the be&s;t pattern of all other, the Law of God;<NOTE N="f" PLACE="marg">Deut. 19.15.17 6. Numb. 35.30.</NOTE> <HI>One witne&s;s &s;hall not ri&s;e up again&s;t a man for any iniquity, or for any &s;in, in any &s;in that he &s;inneth: at the mouth of two witne&s;&s;es, or at the mouth of three witne&s;&s;es &s;hall the matter be e&s;tabli&s;hed.</HI></P>
<P>By the Roman Law therefore, before death or other per&s;o|nal puni&s;hment could be inflicted, there were to be two witne&s;|&s;es; they mu&s;t be free from all exception, and e&s;pecially they mu&s;t be none of the accu&s;eds complices, who<NOTE N="g" PLACE="marg">l. Final. co. de accu&s;at.</NOTE> could not be evidence again&s;t one another; they mu&s;t not by remote circum|&s;tances, or by any light<NOTE N="h" PLACE="marg">l. ab&s;entem parag. <HI>1.</HI> Dig. De poen.</NOTE> pre&s;umptions, but clearly and conclu|dently depo&s;e the thing; and their te&s;timony mu&s;t be agreeing al&s;o not onely as to the act done, but as to place, time, per&s;on, and other material circum&s;tances, wherein if they did vary or di&s;agree, the proof was in&s;ufficient. Three of the Roman Em|perours, <HI>Gratian, Valentinian,</HI> and <HI>Theodo&s;ius,</HI> did all agree in giving to all publick accu&s;ers this adverti&s;ement:<NOTE N="i" PLACE="marg">l. <HI>25.</HI> co. De Probat.</NOTE> <HI>Sciant cuncti accu&s;atores eam &s;e rem deferre in publicam notionem debere, quae munita &s;it idoneis te&s;tibus, vel in&s;tructa aperti&s;&s;imis documen|tis, vel indiciis ad probationem indubitatis &amp; luce clarioribus expedita;</HI> Let all accu&s;ers take notice, that they mu&s;t offer that to publick Trial which is furni&s;hed with legal witne&s;&s;es, or at|tended with mo&s;t luculent proof, or may be made out by argu|ments of unque&s;tionable conviction, and clearer then the light it &s;elf.</P>
<P>The ca&s;e therefore thus &s;tanding, that the wickedne&s;s of Men was grown luxuriant and abounding, that it acted in &s;ecret
<PB N="74" REF="45">altogether, that it would never betray it &s;elf, and witne&s;&s;es &s;ufficient enough to condemn them could hardly be found; It was but nece&s;&s;ary<NOTE N="k" PLACE="marg">Bonum inno|centis bono no|centis, bonum. commune priva|to ante haben|dum e&s;t ordinatae di ectionis lege; ex dilectione autem innocen|tium capitalia judicia nata &s;unt. <HI>Grot. de jur. bell. lib. 1. ca. 2. &s;ect 8.</HI></NOTE> for the publick peace, and the &s;afety of innocent and quiet men, to make them by a vigorous cour&s;e of trial either fear to offend, or be in&s;trumental to condemn them&s;elves, rather then they &s;hould be encouraged to offend freely, out of a pre&s;umption that their evil actings &s;hould never be brought to light. For if there were but one po&s;itive witne&s;s that &s;aw the thing done, as it was mercy and clemency in the Law not to condemn the accu&s;ed pre&s;ently upon &s;o &s;hort a proof; yet were it &s;afe, were it not<NOTE N="l" PLACE="marg">Sicut e&s;t ali|quando mi&s;eri|cordia puniens, ita est crudelitas parcens. <HI>Augu|&s;tin.</HI></NOTE> cruelty to all the people, were it not of ill example to ab&s;olve him quite without a further trial, meerly becau&s;e there was no better proof; which their ill-minded &s;ubtilty, making an ill u&s;e of the favour of the Law, was a cau&s;e of too? So that to bring men to the rack in &s;uch ca&s;es for trials &s;ake, is not to be cen&s;ured for cruelty; <HI>Non ex &s;aevitia, &s;ed ex bonitate talia faciunt homines,</HI> &s;aith<NOTE N="m" PLACE="marg">l. ad <HI>Corin. 3.12.</HI> de paenis humanis agens.</NOTE> St <HI>Chry&s;o&s;tome;</HI> Such things are done by men, not out of cruelty but goodne&s;s. And I mu&s;t &s;ay with<NOTE N="n" PLACE="marg">De ju&s;tit. Roman. leg. lib. <HI>2.</HI> dubit. <HI>64.</HI> arg. l. <HI>51.</HI> parag. ult. Dig. ad l. Aquil.</NOTE> <HI>Mae&s;tertius,</HI> who &s;tifly maintains this proceeding in the Roman Law: <HI>&s;an&egrave; hic juris rigor (&s;i aliquis &s;it) utilitate publica compen&s;atur;</HI> This rigour of the Law (if it be any) is recompen&s;ed 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 &s;ome, as <HI>Ludovicus Vives</HI> writing upon St <HI>Au&s;tin</HI><NOTE N="o" PLACE="marg">De civit. Dei lib. <HI>19.</HI> ca. <HI>6.</HI></NOTE>, and Sir<NOTE N="p" PLACE="marg">ca. <HI>22.</HI></NOTE> <HI>John For|te&s;cue</HI> in his prai&s;es of the Laws of <HI>England,</HI> who have with ve|ry much acrimony defended the contrary; yet I mu&s;t &s;ay to them as the<NOTE N="q" PLACE="marg">l. <HI>3.</HI> Co. Theo|do&s;ian. De defen|&s;or. civitat.</NOTE> three Emperours, <HI>Valentinian, Theodo&s;ius,</HI> and <HI>Ar|cadius</HI> once &s;aid; <HI>Removeantur patrocinia, quae favorem reis, &amp; auxilium facinoro&s;is impertiendo, maturari &s;celera fecerunt;</HI> Away with tho&s;e Apologies, that by a&s;&s;i&s;ting per&s;ons that are accu&s;ed, and pleading on the behalf of wicked men, are an oc|ca&s;ion for wickedne&s;s to &s;pring up and fructifie; for &s;urely it mu&s;t needs grow mo&s;t, and wax mo&s;t vigorous there, where it is mo&s;t gently dealt withall: though as to the fir&s;t, (unque&s;tiona|bly a mo&s;t learned man) who&s;oever reads him in that place, he may &s;ee that he there condemns this trial by torture, look|ing upon it in the general onely, and as u&s;ed arbitrarily and
<PB N="75" REF="45">without any rule or mea&s;ure at all, and not as it was practi&s;ed 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 be&s;ides, yet he could not have been &s;o bitter in cen&s;uring the Civil Law in this particular, if he had remembred with what mea&s;ure of &s;everity tho&s;e that are arraigned for capital crimes, are handled by that Law that he does &s;o much commend; which, becau&s;e others of that profe&s;&s;ion have lately taken &s;uch free notice of, them&s;elves need not mention.</P>
<P>And yet was not this practi&s;ed among&s;t the Romans onely, nor<NOTE N="r" PLACE="marg">More majorum introductum e&s;&s;e inquit Cicero, ut per tormenta veritas exquira|ratur. in Partit. Orator.</NOTE> they the fir&s;t authors of it; for they took it from the Graecians, and from the people of <HI>Rhodes,</HI> whom they follow|ed in mo&s;t things. And<NOTE N="&s;" PLACE="marg">Parat. Dig. de Quae&s;tion. nu <HI>3.</HI></NOTE> <HI>We&s;enbeck</HI> &s;ayes of it, that it was <HI>mos antiqui&s;&s;imus, omnium fer&egrave; bene in&s;titutorum populorum commu|nis; ut non immerit&ograve; pro lege ac jure quodam gentium habeatur;</HI> It was an ancient ob&s;ervation, common almo&s;t to all well or|dered Common-wealths, that it may very ju&s;tly be accounted of as it were a Law of Nations. And if we look into our own Hi&s;torians, and<NOTE N="t" PLACE="marg">Cowels Interp. verb. Ordei.</NOTE> Books of Law, we &s;hall find that there has been a kind of trial very anciently in u&s;e among&s;t our &s;elves here in <HI>England,</HI> very near to this of the Romans, and in &s;everity no whit inferiour: For there were certain Ordeal Laws which were u&s;ed in &s;uch doubtful ca&s;es, whereby when clear and ma|nife&s;t proofs were wanting, they did try and find out whether the accu&s;ed were guilty or guiltle&s;s. And this they were wont to execute one of the&s;e three wayes, either by fire, or by water, or by combate. For &s;ometimes men were enforced to decide matters in controver&s;ie not onely criminal but civil, by the death of one another in a Duel. Sometimes they were adjudg|ed to take red-hot Irons into their bare hands; and &s;ometimes to<NOTE N="u" PLACE="marg">Which was practi&s;ed upon <HI>Queen Emma</HI> the Mother of King <HI>Edward</HI> the Confe&s;&s;or, to clear her &s;elf of Adultery with <HI>Allwin</HI> Bi&s;hop of <HI>Win|che&s;ter,</HI> or as &s;ome write, up|on <HI>Allwin</HI> him|&s;elf. <HI>Hackwill. Apolog. of Gods Provid. lib.</HI> 4. <HI>ca</HI> 2 <HI>&s;ect.</HI> 5. <HI>I&s;aack&s;ons Chro|nolog. Anno</HI> 10<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">0.</NOTE> walk bare-foot over red-hot plough-&s;hares blind-fold. Their judgment by water was either by appointing the party accu&s;ed to thru&s;t his armes up to his elbows in &s;eething hot water, or by having a cord tied about him under his armes, to be ca&s;t into &s;ome river.</P>
<P>In the&s;e ca&s;es, if the accu&s;ed parties go over &s;even plough|&s;hares laid a little di&s;tance one from another, and either tread
<PB N="76" REF="46">be&s;ides them, or treading upon them with their bare feet, or taking the hot irons in their bare hands, did receive no harm: and &s;o if the parties putting their armes into the hot water, were not &s;calded; or they that were ca&s;t into a river, did &s;ink 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 &s;calded by the hot water, or could not &s;ink to the bottome of the river, or were &s;lain or vanqui&s;hed in the combate, in &s;uch ca&s;es they were pronounced guilty.</P>
<P>But further, this great but mo&s;t whol&s;ome &s;everity of the Ro|mans, was tempered with a very great allay of tenderne&s;s and care towards the accu&s;ed offender; as may be &s;een by the many and mo&s;t prudent cautions that were ob&s;erved in it. For</P>
<P>Fir&s;t, the offence in which &s;uch trial was allowed, was to be enormous, and not &s;o little<NOTE N="x" PLACE="marg">Gomez. var. Re&s;ol. Tom. <HI>3.</HI> ca. <HI>13.</HI> nu. <HI>2.</HI></NOTE> as was to be puni&s;hed by bani&s;h|ment or pecuniary &s;atisfaction, but either death or corporal puni&s;hment was to follow it.</P>
<P>Secondly, it never could be had where there could be got|ten a full and a &s;ufficient proof to condemn without it. For this was to be the la&s;t means to bring forth the truth, when<NOTE N="y" PLACE="marg">l <HI>12.</HI> co. de. Quae&s;tion.</NOTE> all other means did fail.</P>
<P>Thirdly, Before a man could be brought to the rack, the offence was to be made out<NOTE N="z" PLACE="marg">Multis indici|is oneratus, &amp; argumentis pen&egrave; convictus reus e&s;&s;e debet. <HI>We|&s;enb. parat. dig. eod. nu. 7.</HI></NOTE> with &s;uch an evidence, as in &s;ome other States would be &s;ufficient to take away life it &s;elf, it the crime were capital: for either it mu&s;t be proved by one witne&s;s who &s;aw it done, or if it could no otherwi&s;e be made out then by circum&s;tances, they mu&s;t be very pregnant and convincing, and &s;uch circum&s;tances mu&s;t be<NOTE N="a" PLACE="marg">Gomez. dict. ca. <HI>13.</HI> nu. <HI>18.</HI></NOTE> proved at lea&s;t by two witne&s;|&s;es.</P>
<P>Fourthly, the accu&s;ed per&s;on had all free licen&s;e given him to di&s;able the accu&s;ers proof, to di&s;parage his witne&s;&s;es, or to offer any<NOTE N="b" PLACE="marg">Si quaedam indicia pro reo &s;acient, quae el|ident contraria, ita ut amplius ea &s;emiplenam probationem non impleant, ad torturam perveniri non debet. <HI>We&s;emb. parat. Dig. De quae&s;t. nu. 7.11.</HI></NOTE> evidence to the contrary; and if the Judge did at la&s;t condemn him to be brought to the rack, he<NOTE N="c" PLACE="marg">L. <HI>2.</HI> Dig. De appellat. recipiend.</NOTE> might yet appeal.</P>
<PB N="77" REF="46">
<P>Fifthly, it mu&s;t be executed with a re&s;pect had to the &s;trength or weakne&s;s of the body that is to &s;uffer, and no further then may &s;erve to draw out the truth, <HI>ut moderatae rationis tempera|menta de&s;iderant,</HI> &s;ayes<NOTE N="d" PLACE="marg">l. <HI>10.</HI> parag. <HI>3.</HI> Dig De quae&s;t.</NOTE> <HI>Arcadius;</HI> and, <HI>ut homo &s;alvus &s;it vel innocentiae vel &s;upplicio;</HI> as may &s;tand with all fitting and rea|&s;onable moderation; and that he may be pre&s;erved either to innocence or to puni&s;hment.</P>
<P>Sixthly, The Law notwith&s;tanding gave &s;o little credit to any confe&s;&s;ion made under &s;uch bitter &s;ufferings, becau&s;e it might be extored by force, and out of a hope to be rid of the pre|&s;ent pain, rather then that they were the words of truth, that it would never condemn upon any &s;uch confe&s;&s;ion, except the party accu&s;ed being redeemed from his pain, and in his full li|berty, did again confe&s;s the very &s;ame thing; nor then neither, if that which was confe&s;&s;ed were more probable to be fal&s;e then true.</P>
<P>La&s;tly, the Judge that examined him in &s;uch extremities, was directed to bear him&s;elf &s;o cautiou&s;ly,<NOTE N="e" PLACE="marg">l. <HI>1.</HI> parag. <HI>21.</HI> Dig. eod.</NOTE> <HI>ut non &s;uggerere inter|rogato, &s;ed ab eo potius veritatem requirere videatur;</HI> that the truth &s;hould rather come freely from him&s;elf, then any thing &s;hould be &s;ugge&s;ted to him. He was al&s;o diligently to mind with what voice he &s;pake, high or low, how freely &s;uch confe&s;|&s;ion 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. <HI>Plurimum in excutienda veritate,</HI> &s;ays<NOTE N="f" PLACE="marg">l. <HI>10.</HI> parag. <HI>5.</HI> De eod.</NOTE> Ar|cadius, <HI>etiam vox ip&s;a, &amp; cognitionis &s;ubtilis diligentia affert. Nam &amp; ex &s;ermone, &amp; ex eo, qua quis con&s;tantia, qua trepida|tione quid diceret; vel cujus exi&s;timationis qui&s;que in civitate &s;ua e&s;t, quaedam ad illuminandam veritatem in lucem emer|gunt.</HI></P>
<P>The&s;e were the cautions which the Roman State did pre&s;cribe to be u&s;ed in this &s;harp, but as their policy &s;tood (who did not love upon a &s;lender proof to take away the lives of their peo|ple) very nece&s;&s;ary cour&s;e of trial by torture; which peace|able and ju&s;t men could not be offended with, becau&s;e it was to<NOTE N="g" PLACE="marg">Quippe c&ugrave;m ne &s;e quidem inter tot cruces &amp; &s;upplicia &s;ontium &s;atis tuta fit innocen. tia, <HI>&s;ayes</HI> Gro|tius <HI>de jur. Beil. lib. 2. ca. 20. nu. 12.</HI></NOTE> defend and &s;ecure them from the rage and the rapine of vile men: And if evil men did groan under that &s;everity, they had their de&s;ert, and might<NOTE N="h" PLACE="marg">Damnum quod quis &s;ua culpa &s;extit, fi&ograve;t debit non al<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">is imputate. Reg. <HI>86.</HI> De reg jur. in <HI>6.</HI></NOTE> thank them&s;elves. And though it
<PB N="78" REF="47">might po&s;&s;ibly, howbeit very rarely happen, that &s;ome innocent man might wrongfully &s;uffer &s;ometimes under that trial; yet what &s;o perfect or exact a trial can there be devi&s;ed or thought of, under which that rare accident may not al&s;o be? for when we have done all that we can, yet we can &s;till but judge as Men.</P>
<P>In defence whereof I have therefore taken the liberty to in&s;i&s;t the longer, becau&s;e once at a publick &s;olemn meeting, where the keeping up of this Profe&s;&s;ion came to be con&s;idered of, I took notice that this &s;mall part of the Civil Law was enforced by a worthy Gentleman, <HI>quem honoris cau&s;a non nomino,</HI> as a main obje|ction, upon which he would have that whole Law to be quite laid a&s;ide; by which rule I know not what Law there is, or ever was, that would &s;tand: and for this rea&s;on al&s;o, to &s;hew how wi&s;e and rational that Law is, even in that which tho&s;e that do not fully under&s;tand it, would &s;o much condemn it for; and how ea|&s;ily in all other matters it may be defended, if &s;o well main|tain'd in this. To go on therefore in pur&s;uit of my fir&s;t de&s;ign.</P>
<P>The Civil Law will have rigour alwayes give place to equity. <HI>Placuit in omnibus rebus praecipuam e&s;&s;e ju&s;titiae aequitati&s;que, qu&agrave;m &s;tricti juris rationem,</HI><NOTE N="i" PLACE="marg">l. <HI>8.</HI> Co. de Ju|dic.</NOTE> &s;ayes the Law; It is enacted that in all things there ought to be a greater con&s;ideration of right and equity then of &s;trict and exact rule. For if every ca&s;e, when circum&s;tances be clean different, &s;hould be mea&s;ured by one and the &s;ame rule, <HI>&s;ub authoritate juris &s;cientiae pernicios&egrave; ali|quando erraretur,</HI> &s;ayes <HI>Paulus</HI><NOTE N="k" PLACE="marg">l. &s;i &s;ervum. dig. de verb. chlig. parag. <HI>3.</HI></NOTE>; Under pretence of ob&s;er|ving Law, we may at one time or other fall into dangerous er|rour. If a man leaves goods in my hands to keep for him, the Law doth &s;trictly enjoyn me to re&s;tore them when they are de|manded<NOTE N="l" PLACE="marg">l. Tot. Tit. dig. Depo&s;.</NOTE>: But if afterwards this mans goods &s;hall be confi&s;cate, as being condemn'd for &s;ome capital crime; or if it appears that the&s;e goods were &s;tollen, and that the true owner comes to claim them, I &s;hould erre injuriou&s;ly to keep my &s;elf to the &s;trict rule of re&s;toring the goods preci&s;ely from whence I had them, and not to deliver them up to the State, or to return them to the true and ju&s;t owner. <HI>Haec e&s;t bona fides,</HI> &s;ayes Try|phoninus,<NOTE N="m" PLACE="marg">l. <HI>31.</HI> dig. Depo&s; parag. <HI>1.</HI></NOTE> <HI>ut commi&s;&s;am rem recipiat is, qui dedit. Sed &s;i toti|us rei aequitatem, quae ex omnibus per&s;onis quae negecio i&s;to con|tinguntur,
<PB N="79" REF="47">impletur, mihi reddenda &s;unt, &agrave; quo, facto &s;cele&s;ti&s;&s;imo adempta &s;unt. Et probo hanc e&s;&s;e ju&s;titiam, quae &s;uum cuique ita tribuit, ut non distrahatur ab ullius ju&s;tiore repetitione;</HI> It is hone&s;ty to return the goods to him that left them with me. But if the equity of the whole ca&s;e be con&s;idered, and the per&s;ons that are concerned in it, they are better returned to him from whom they were unju&s;tly taken. I allow that ju&s;tice, &s;ayes he, which does &s;o render back to every one his own, as that thereby no injury is done to another who has a better right therein.</P>
<P>And from this equity is it that &s;everal wayes and means are ordained, of re&s;toring men to their fir&s;t &s;tate and condition, from whence in &s;trictne&s;s 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 pre&s;ent, or through &s;ome &s;lip or errour which a wi&s;er then he might have commit|ted, be fallen into &s;ome great mi&s;chief, equity in &s;uch ca&s;es will relieve him again&s;t the Law.<NOTE N="n" PLACE="marg">Tot. Tit. Dig. de in integ. re&s;t.</NOTE> Hence is it that the Law appoints the Judge, <HI>aequitatem &s;emper ante oculos habere,</HI><NOTE N="o" PLACE="marg">l. <HI>4.</HI> parag <HI>1.</HI> Dig de eo quod cert. loc.</NOTE> to have equi|ty before his eyes; and that upon the entrance into his office he &s;hall take an oath, <HI>qu&ograve;d in judicando velit aequitatem &s;equi,</HI><NOTE N="p" PLACE="marg">Nevell. <HI>8.</HI></NOTE> that he will judge according to equity; and that all bargains are to be interpreted by equity.<NOTE N="q" PLACE="marg">l. <HI>81.</HI> Dig. Pro+&s;ocio.</NOTE> Al&s;o &s;ometimes we may depart from the very nature of the contract, and the very words of the will, to follow equity.<NOTE N="r" PLACE="marg">Brouch. l. <HI>90.</HI> Dig de reg. jur.</NOTE> Al&s;o &s;olemnities and formes of Law, though they ought to be mo&s;t carefully ob&s;erved, becau&s;e they are or|dained as rules for all ca&s;es; yet upon the ground of manife&s;t equity there may be a deviation from them too. <HI>Et &s;i nihil faci|le mutandum e&s;t ex &s;olennibus, tamen ubi aequitas evidens po|&s;eit, &s;ubveniendum e&s;t.</HI><NOTE N="&s;" PLACE="marg">l. <HI>7.</HI> Dig. de in integr. re&s;t.</NOTE></P>
<P>And yet will not the Law allow of the relief of equity in any ca&s;e, which is &s;pecially even with all its circum&s;tances &s;ettled by Law, how rigorous &s;oever the determination of the Law be: for written rigour &s;hall be preferr'd before unwritten equity.<NOTE N="t" PLACE="marg">l. <HI>12.</HI> parag <HI>1:</HI> Dig. Qui &amp; &agrave; quib man. Vetantis legit major e&s;t pote|stas, qu&agrave;m aequi|tatis, tujus &s;peci|em obtendere &s;uae cupiditati|cuique liceret. <HI>Bodin de rep<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> lib. 1. ca. 8.</HI></NOTE> <HI>Glementiores lege judices e&s;&s;e non oportet;</HI> Judges ought not to be merciful above that that the Law it &s;elf is But it lets in equi|ty where the Law is general, and the ca&s;e in fact is accompanied with &s;uch &s;pecial circum&s;tances, that in all likelihood the Law ne|ver took it into con&s;ideration; which if it had, it would and
<PB N="80" REF="48">mu&s;t have made an exception in that ca&s;e; For as <HI>Ari&s;totle</HI> &s;ayes, <HI>aequitas nihil aliud e&s;t qu&agrave;m &s;upplementum ejus quod lex praetermi&s;it;</HI> equity is no more then a providing &s;pecially for that which the Law is &s;ilent in. Neither does it allow of a wan|dering, imaginary, or unre&s;trained equity, but what is either written and authentick from the Law it &s;elf, or what is manife&s;t and evident to wi&s;e, rational, and the be&s;t di&s;cerning men (I mean tho&s;e that are skill'd and well &s;tudied in the Civil Law, and not your vulgar rational men) by deductions and rea&s;onings from the Law given in the like ca&s;es. <HI>Non po&s;&s;unt omnes articuli &s;igillatim aut legibus aut &s;enatu&s;con&s;ultis comprehendi; &s;ed c&ugrave;m in aliqua cau&s;a &s;ententia eorum manife&s;ta e&s;t, is qui juri&s;|dictioni praee&s;t, ad &s;imilia procedere, at&abque; ita jus dicere debet;</HI> Laws and decrees cannot hit every circum&s;tance; but when their determination is certain in any one ca&s;e, by that the Judge may do right in other ca&s;es that are like it<NOTE N="u" PLACE="marg">l. <HI>12.</HI> Dig. De Legib.</NOTE>.</P>
<P>As it treats the living with all gentlene&s;s and equity, &s;o it ex|tends its humanity and tender con&s;ideration to the dead too, and is indulgent to tho&s;e that lie in their very graves. And there|fore it will have the heirs and executors of a decea&s;ed per&s;on to be &s;o free to bury the dead, and to pay all &s;uch funeral re&s;pects as are due, that it will not &s;uffer any action to be brought, or any demand to be made of any thing that was owing by him that is dead, by the &s;pace of nine dayes.<NOTE N="x" PLACE="marg">Novell. <HI>115.</HI> ca. <HI>5.</HI></NOTE> Nor can any legal proce&s;s be &s;erved upon tho&s;e that are accompanying the corps to burial.<NOTE N="y" PLACE="marg">l. <HI>2.</HI> &amp; <HI>3.</HI> Dig. De in jus vo|cand.</NOTE> And &s;o far is it from conniving at the barbarous inhumanity of tho&s;e, that for money owing by the decea&s;ed will arre&s;t and &s;tay the body from burial till payment made, or full &s;ecurity given, that it inflicts a &s;harp puni&s;hment upon &s;uch tran&s;gre&s;&s;ours; for they do not onely quite lo&s;e that which they labour to recover by &s;o foul an action, but al&s;o forfeit as much in value to the decea&s;eds heirs; and a third part of their e&s;tate is confi&s;cate, and they make them&s;elves infamous<NOTE N="z" PLACE="marg">Ut defunct. &s;eu funer. cor. non injur. ca. <HI>5.</HI></NOTE>.</P>
<P>And if there be &s;uch a cu&s;tome which I have heard is preten|ded to by &s;ome pari&s;hes within this Nation, and practi&s;ed al&s;o, that when a dead corps is carried through towards &s;ome further place of burial, it may be &s;taied upon the way, and not &s;uffered to proceed till &s;ome fee or toll be paid; it is &s;uch a cu&s;tome
<PB N="81" REF="48">which the Civil Law is again&s;t. For that Law expre&s;ly provides, <HI>ne corpora aut e&s;&s;a mortuorum detinerentur aut vexarentur; ne|ve prohiberentur, quo minus via publica transferrentur, aut qu&ograve; minus &s;epelirentur;</HI> that the bodies and bones of the dead be not &s;taied or troubled, nor that any re&s;traint be to hinder their pa&s;&s;age along the high-way to and fro, or to ob&s;truct their burial.<NOTE N="a" PLACE="marg">l. <HI>38.</HI> Dig. de Mortu Infer.</NOTE> And generally without exception either of place or per&s;on, &s;ayes directly, that no &s;uch fee or toll &s;hall be paid.<NOTE N="b" PLACE="marg">Graec. Cod. de relig. &amp; &s;umpt. fun l. <HI>15.</HI></NOTE> <HI>In nullo quopiam loco vectigal ab aliqua per|fona pro corporibus ex uno loco in alium tran&s;latis prae&s;tetur;</HI> No fee &s;hall be paid by any per&s;on in any place for the removing of a corps from one place to another.</P>
<P>And &s;urely if the fir&s;t ground from whence that cu&s;tome came were known, we &s;hould be willing for Religion &s;ake to lay it down. For our &s;uper&s;titious ance&s;tours believing that the pray|ers of the living were u&s;eful to the &s;ouls of the dead, were wont as often as they carried forth any dead body to be buried, to &s;tay in every convenient Town through which they went, to receive the prayers of the devout people for the &s;oul of their decea&s;ed Brother; In recompence whereof it is probable, that &s;omething was in charity be&s;towed for the poor of that place, or to &s;ome other end. Which at fir&s;t proceeding from bounty, we have no cau&s;e to turn it into a duty, e&s;pecially to pa&s;s an indig|nity upon the dead, and when we be&s;tow not the prayers as they did, nor indeed can think them profitable as they applied them.</P>
<P>Neither is the Law &s;o careful to conduct the dead quietly to their graves, as it is &s;evere in puni&s;hing tho&s;e that &s;hall di&s;turb their bodies there, or &s;hall demoli&s;h or deface their &s;epulchres. The place where the dead body lies is e&s;teemed Religious, and the injury done to the body it &s;elf, or to the monument thereof, is accounted no le&s;s then &s;acriledge.<NOTE N="x" PLACE="marg">l Co. De &s;e|pulch. viol.</NOTE></P>
<P>If it be done riotou&s;ly and with Armes, the crime is capital; if without, it is to be con&s;idered whether the body be pull'd out of the grave, and then it is capital to tho&s;e of the meaner &s;ort, but others of better rank are bani&s;hed, or condemned to work in the Mines. But if the &s;epulchre be onely demoli&s;hed or defa|ced, a penalty is paid to the Exchequer, and good reparation given to the next heirs, and divers other puni&s;hments be&s;ides inflicted<NOTE N="y" PLACE="marg">Tot. Tit. Dig. &amp; Cod. de fe|pulch. viol.</NOTE>.</P>
<PB N="82" REF="49">
<P>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 ow|ner of the &s;oyl, yet it will not &s;uffer the owner of the ground, of his own head to unbury or take away the body, <HI>propter re|verentiam manium, &amp; quia corpus &s;epultum non e&s;t inquietan|dum;</HI> for the honour due to the Gho&s;ts of the dead, and be|cau&s;e dead men once interr'd ought not to be di&s;turb'd; but ei|ther the Prince or the chief Prie&s;t mu&s;t give authority or war|rant for the &s;ame.<NOTE N="z" PLACE="marg">l. <HI>8.39.</HI> Dig. de relig. &amp; &s;umpt. fun.</NOTE> Finally, the debt contracted by the decea|&s;ed in the time of his &s;ickne&s;s or about his burial, &s;hall be paid before all other debts what&s;oever.<NOTE N="a" PLACE="marg">l. pen. Dig. de relig. &amp; &s;umpt. fun. l, <HI>3.</HI> Co. eod.</NOTE></P>
<P>In all its con&s;titutions it oppo&s;eth and &s;etteth it &s;elf again&s;t the oppre&s;&s;ion of great ones, and hateth that wrong that comes from the potency or greatne&s;s of any per&s;on. If a per&s;on of honour &s;hall forcibly carry away a Virgin, or invade the po&s;|&s;e&s;&s;ion of another, he &s;hall be tried by the ordinary Judge of the place where he offendeth, and not be allowed any higher or more noble Judge, which el&s;e he may claim to have: for <HI>omnem huju&s;modi honorem reatus excludit,</HI> &s;ayes the Text of the Law;<NOTE N="b" PLACE="marg">l. Co. Ubi &s;ena|to. vel clari&s;&s;.</NOTE> His guilt renders him uncapable of any &s;uch Honoura|ble Priviledge. <HI>Neque honos ei &s;ervatur qui &s;e in tantum &s;celus deduxit;</HI><NOTE N="c" PLACE="marg">l. <HI>47.</HI> Dig. de ritu nupt.</NOTE> Honour is no protection for him that hath &s;tained it with &s;uch an odious crime.</P>
<P>It will not allow per&s;ons of great power or high place to in|tere&s;t them&s;elves in the controver&s;ies or litigious e&s;tates of others, neither by &s;olliciting them in Court, nor having their names u&s;ed to countenance them; <HI>ne tenuiores importunis po|tentium interce&s;&s;ionibus opprimantur,</HI> &s;ayes the Text;<NOTE N="d" PLACE="marg">l. <HI>1.</HI> Co. Ne li|eiat potent. pa|trocin.</NOTE> that is, le&s;t might &s;hould 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 a&s;&s;ignment to them made, to lend their name or patronage for the a&s;&s;erting of others rights.<NOTE N="e" PLACE="marg">Tot. Tit. Co. Ne fi&s;cus vel re&s;p. procuration.</NOTE> <HI>Ne inde injuriarum na&s;catur occa&s;io, unde ju|ra na&s;cuntur;</HI><NOTE N="f" PLACE="marg">l. <HI>6.</HI> Co. unde vi.</NOTE> that is, le&s;t they that &s;hould do mo&s;t right, &s;hould be the occa&s;ion of doing the greate&s;t wrong.</P>
<P>And it is remarkable, how di&s;daining the expre&s;&s;ions of the Law are in that particular, and yet but &s;uch as upon the like
<PB N="83" REF="49">occa&s;ion are frequent and common in the Law every where. Petition being made to <HI>Gordian</HI> the Emperour, that he would &s;uffer it, his an&s;wer was, <HI>Contra juris rationem de&s;ideras;</HI><NOTE N="g" PLACE="marg">l. <HI>1.</HI> Co. Ne fi&s;cus vel re&s;p.</NOTE> The reque&s;t was oppo&s;ite to right rea&s;on. The &s;ame Emperour be|ing asked again the &s;ame thing, &s;aid, <HI>Hoc temporum meorum di&s;ciplina non patitur. &V;nde jus tuum, &s;i quod tibi competit, ci|tra invidiam fi&s;ci mei tueri &s;olenniter cura;</HI><NOTE N="h" PLACE="marg">l. <HI>2.</HI> Co. eod.</NOTE> that is, it agrees not with my fa&s;hion or government &s;o to do. If therefore you have a right, pro&s;ecute it in your own name, without drawing into odium my Exchequer. The Emperours <HI>Diocle&s;ian</HI> and <HI>Maximilian</HI> to the &s;ame thing peremptorily &s;ay, <HI>Abhorret &agrave; &s;eculo no&s;tro;</HI><NOTE N="i" PLACE="marg">l. <HI>3.</HI> Co. eod.</NOTE> It was a thing that he and all of his time abhor|red: And again,<NOTE N="k" PLACE="marg">l. <HI>4.</HI> Co. eod.</NOTE> that it was <HI>contra &s;eculi &s;ui tranquillitatem;</HI> It would be an inlet to a general di&s;temper to permit it.</P>
<P>It will not endure any fraudulent, fallacious, or deceitful dealing.<NOTE N="l" PLACE="marg">Tot. Tit. Dig. &amp; Co. de Dol. mal.</NOTE> If a man does wilfully alien to defraud his adver&s;ary, his act is vain; for in the eye of the Law he is taken to be in po&s;&s;e&s;&s;ion &s;till. <HI>Qui dolo de&s;ierit po&s;&s;idere, pro pe&s;&s;idente damna|tur; quia pro pe&s;&s;e&s;&s;ione dolus e&s;t.</HI><NOTE N="m" PLACE="marg">l. <HI>131.</HI> Dig. de reg. jur.</NOTE> E&s;pecially it hates deceit mo&s;t in tho&s;e, whom it is mo&s;t forward to relieve when they are deceived. The Civil Law allows not a woman a capacity to be &s;urety or to be bound for others, though &s;he might contract for her &s;elf, <HI>propter inbecillitatem &s;exus,</HI> being prone to be drawn in and to be wrought upon;<NOTE N="n" PLACE="marg">Tot. Tit. Dig. ad S. C. Velleian.</NOTE> Which re&s;traint did bind her from being bound for her own husband.<NOTE N="o" PLACE="marg">l. <HI>2.</HI> Dig. eod.</NOTE> But if when &s;he knows her priviledge, and will cunningly di&s;&s;emble it, and offer to be bound notwith&s;tanding, and the creditor is &s;uch a one as may be ju&s;tly ignorant of the Law in that particular; or if &s;he pre&s;ents her&s;elf in mans apparel, the Law will not relieve her, but &s;he remains &s;ubject to action: For, <HI>ita demum mulieribus &s;ubvenitur, &s;i non callid&egrave; &s;int ver&s;atae: Infirmitas foeminarum, non calliditas, auxilium meruit;</HI><NOTE N="p" PLACE="marg">d. l. <HI>2.</HI> parag. <HI>3.</HI></NOTE> It is their ignorance and weak|ne&s;s that the Law favours, and not their craft and &s;ubtilty. So no act is binding to him that is under age.<NOTE N="q" PLACE="marg">Tot. Tit. Dig. de minor.</NOTE> But if he &s;hall <HI>fallaci majoris aetatis mendacio aliquem decipere,</HI> &s;ay and pretend to him that deals with him that he is of full age when he is not, in that ca&s;e he &s;tands obliged and is remedile&s;s. <HI>Nam erranti|bus, non fallentibus, publica jura &s;ubveniunt;</HI><NOTE N="r" PLACE="marg">l. <HI>2.</HI> Co. &s;i min. &s;e major. dixer.</NOTE> It is errour and
<PB N="84" REF="50">imprudence, and not fraud, that the Law will &s;uccour.</P>
<P>Ingratitude is &s;o odious in the Civil Law, that if a &s;lave that has been manumi&s;ed &s;hall bear him&s;elf unthankful towards his Ma&s;ter, or if a &s;on &s;hall recompence the benefit of being quit of his fathers power and command, with &s;ome injurious act or of|fice again&s;t his father, they may both for their ingratitude be brought into their former yoke again.<NOTE N="&s;" PLACE="marg">We&s;enb. Pa|rat. Dig de ob|&s;equ parent. &amp; patron. prae&s;tand.</NOTE> And generally, if I have out of my free bounty be&s;towed any thing upon another, if he &s;hall attempt to betray my life or e&s;tate to mi&s;chief, or pa&s;s upon me any weighty injury, I need not &s;uffer my bounty to remain with &s;o unworthy a per&s;on, but may recall it again from him;<NOTE N="t" PLACE="marg">l. <HI>10.</HI> Co. De revocand. Donat.</NOTE> <HI>C&ugrave;m magis in eos collata liberalitas ad ob&s;equium eos incli|nare deberet, qu&agrave;m ad in&s;olentiam erigere;</HI><NOTE N="u" PLACE="marg">l. <HI>1.</HI> Co. eod.</NOTE> Since bounty ought to invite men to be rather ob&s;equious then in&s;olent. How|beit my heir, if I die, &s;hall not &s;ue to recovet it: <HI>Etenim &s;i ip&s;e qui hoc pa&s;&s;us e&s;t, tacuerit, &s;ilentium ejus maneat &s;emper,</HI> &s;ayes the Law:<NOTE N="x" PLACE="marg">d. l. <HI>10.</HI></NOTE> If I again&s;t whom the ingratitude was com|mitted did not complain, let it be buried in &s;ilence for ever.</P>
<P>The elegance wherewith it has expre&s;&s;ed its dete&s;tation and &s;everity again&s;t the odious and unnatural &s;in of men carnally mixing with one another, is very remarkable: <HI>C&ugrave;m vir nubit in foeminam viris porrecturam, quid cupiatur, ubi &s;exus perdidit locum? ubi &s;celus e&s;t id, quod non proficit, &s;cire? &V;bi Venus mu|tatur in alteram formam? &V;bi amor quaeritur, nec videtur? Jubemus in&s;urgere leges, armari jura gladio ultore, ut exqui&s;itis poenis &s;ubdantur infames, qui &s;unt vel futuri &s;unt rei.</HI><NOTE N="y" PLACE="marg">l. <HI>31.</HI> Co. ad l. Jul. de Adult.</NOTE> The &s;tate and quality of the matter requires me not to tran&s;late the words, though mo&s;t elegant.</P>
<P>The order that the Civil Law has &s;etled for the &s;haring of a mans e&s;tate who dies inte&s;tate, is very natural, ju&s;t, and ratio|nal. It &s;ets no difference between land and goods, nor between elde&s;t and younge&s;t, nor male and female, but divides the whole equally among&s;t them; yet it has a re&s;pect to di&s;tance and pro|pinquity of degrees, and con&s;iders the whole bloud and the half after a different manner. It calls fir&s;t children; if they fail, then parents; if they fail too, then the next collateral kin|dred.<NOTE N="z" PLACE="marg">Novel. <HI>118.</HI> de haered. ab in|te&s;t venient. in|princ.</NOTE> And when I &s;ay that children &s;hall &s;ucceed in the fir&s;t place, I do thereby exclude and bar Grand-children, &s;o long
<PB N="85" REF="50">as their parents are alive: for <HI>proximior in gradu &s;emper remoti|orem excludit;</HI><NOTE N="a" PLACE="marg">Parag. &s;i plu|res In&s;t. de legit. agnat. &s;ucce&s;.</NOTE> the nearer in degree &s;huts out tho&s;e that are further off. Yet if there were divers children at fir&s;t, and one of them is dead, who has left children, &s;uch Children and Grand-children &s;hall &s;ucceed together, but they &s;hall not all &s;hare alike: for as the children among&s;t them&s;elves &s;hall par|take equally; &s;o the children of him that is dead, if there be never &s;o many of them, yet all repre&s;enting their father and coming under his right, they &s;hall all have but that portion which he &s;hould have had if he had lived.<NOTE N="b" PLACE="marg">Parag. rum filius. In&s;t. De haered. quae ab inte&s;t. defer.</NOTE> And this the Law calls a &s;ucce&s;&s;ion in <HI>&s;tirpes,</HI> there being no con&s;ideration had of their number, but of their &s;tocks onely. And though all the children of the fir&s;t degree &s;hould die, each of them leaving their &s;everal children, be the number equal or unequal; yet &s;till the children of each child &s;hall have but the fathers or mothers part;<NOTE N="c" PLACE="marg">Parag. fin. In&s;t. cod.</NOTE> for &s;till they &s;ucceed in right of their ance&s;tour, and not in any right of their own.<NOTE N="d" PLACE="marg">We&s;ent. Parat. dig. Unde cogra.</NOTE></P>
<P>When children and all of the de&s;cendent line do fail, the Law does not onely admit the father and mother in the next place to &s;ucceed equally; but if they fail, the next in degree above them in the a&s;cendent line, as Grand-father and Grand-mother, &s;hall come in to inherit. And if there be both Grand father and Grand-mother by the fathers &s;ide, and Grand-father and Grand-mother by the mothers &s;ide, the e&s;tate &s;hall be divided into two equal parts; the Grand father and Grand-mother by the fathers &s;ide to have one, and the Grand-father and Grand-mother by the mothers &s;ide to have the other; and though there be but one of one &s;ide, and two of the other, yet the divi&s;ion mu&s;t be the &s;ame.<NOTE N="e" PLACE="marg">Ca. <HI>1.</HI> dict. Novel. <HI>118.</HI></NOTE></P>
<P>But if the per&s;on that is dead inte&s;tate, left Parents in the a&s;cendent line; and near kindred in the collateral line, as bro|thers and &s;i&s;ters; the one &s;hall not exclude the other, but they &s;hall all be admitted together, to divide the e&s;tate equally, every per&s;on carrying away an equal &s;hare;<NOTE N="f" PLACE="marg">d cap <HI>2.</HI></NOTE> and if there be children of a brother that is dead, they &s;hall come in too, but no further, then to carry away their fathers part.<NOTE N="g" PLACE="marg">Schneidw. In&s;t. de haered: quae ab int. Tit. de &s;ecund. ordin. &s;ucce. l. nu. <HI>29.</HI></NOTE> Howbeit, they mu&s;t be brothers or &s;i&s;ters of the whole bloud to him that is dead, who would come in with the parents: for brothers or
<PB N="86" REF="51">&s;i&s;ters of the half bloud &s;hall not concur with them.<NOTE N="h" PLACE="marg">&s;chneidw. loc. cit <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">t. nu. <HI>30.</HI></NOTE></P>
<P>Where the de&s;cendent and a&s;cendent 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 mu&s;t yeeld to the children their fathers part. But if there be brothers and &s;i&s;ters children onely, the brothers and &s;i&s;ters be|ing all dead, though there be never &s;o many of one brother, and but one of another, and two of one &s;i&s;ter and but one of ano|ther, yet all the&s;e brothers and &s;i&s;ters children &s;tanding alone, how unequal &s;oever they be in number, yet they &s;hall all &s;hare equally; not each &s;tock having what their fathers &s;hould have had, but every per&s;on having his equal part in the whole:<NOTE N="i" PLACE="marg">&s;chneidw. loc. eit. Tit. de Tertio ord. &s;ucced nu. <HI>29.</HI></NOTE> And this the Law calls <HI>&s;uce&s;&s;io in capita,</HI> a &s;ucce&s;&s;ion by the poll. The rea&s;on why they &s;ucceed thus differently when they are alone, from that which they do when they concur with brothers and &s;i&s;ters to the decea&s;ed, is, becau&s;e here they derive no right from their ance&s;tour, but &s;ucceed by a right of their own, being now the decea&s;eds next of kin: whereas in the other ca&s;e they &s;ucceed by way of repre&s;entation, and in the right of their pa|rent only.</P>
<P>But if brothers and &s;i&s;ters and their children do both fail, it is a certain and uncontrouled rule, That who&s;oever is next in de|gree to him that is dead, after the&s;e in the collateral line, bars and &s;huts out all of any degree that is further off.<NOTE N="k" PLACE="marg">Auth. po&s;t. fratres. Go. de legitim. haered.</NOTE> For the right of repre&s;entation reaches no further, nor to any other then to brothers children in the collateral line.<NOTE N="l" PLACE="marg">Ca. <HI>3.</HI> diot. Novel, <HI>118.</HI></NOTE> Wherefore if a man dies leaving Uncles and Aunts both by father and mo|ther, they are all admitted to have equal &s;hares; but no chil|dren of any Uncle or Aunt that is dead, &s;hall be admitted to come in with them. And &s;o 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.<NOTE N="m" PLACE="marg">Auth. Ce&s;|&s;ante co. De legi|tim. haered.</NOTE> Nay further, a Brothers &s;on of the whole bloud &s;hall carry away the e&s;tate from the Brother of the half. But if there be no Brothers or Brothers children of the whole bloud, then the Brothers and Si&s;ters of the half and their children are let in, to exclude remo|ter kindred.<NOTE N="n" PLACE="marg">d. Auth. po&s;t fratres autem.</NOTE> Howbeit though the being of the half bloud be a
<PB N="87" REF="51">bar to &s;ucce&s;sion in Brothers and Brothers children, yet does it bar no other further off then they. If therefore a man dies lea|ving two Uncles, the one Brother of the whole bloud to his fa|ther, the other Brother of the half, the whole bloud here &s;hall not exclude the half, but they &s;hall both &s;ucceed alike. For in the collateral line, after Brothers and Brothers children, <HI>&s;ol&ugrave;m con&s;ideratur proximitas &amp; paritas graduum, non duplex vincu|lum conjunctionis;</HI> the nearne&s;s in degree is onely to be re&s;pect|ed, and not the bloud. Wherefore they being both in an equal degree, they are to be dealt withall in this point of &s;ucce&s;sion equally.<NOTE N="o" PLACE="marg">&s;chneidw loci citat: Tit: De tertio erd: &s;uc|ced: nu: <HI>34.</HI></NOTE></P>
<P>As for the wife, becau&s;e under the Roman &s;tate &s;he might have a three-fold patrimony of her own; Fir&s;t her dower, &s;e|condly, the goods that &s;he brought in marriage to her husband over and above, call'd <HI>bona Paraphernalia,</HI> or <HI>bona extra dotem;</HI> and thirdly goods or e&s;tate that &s;he kept in her own hands, which never came to the hands of her husband:<NOTE N="p" PLACE="marg">Paul de ca&s;tr: in l. maritus. <HI>21.</HI> co: de procurat:</NOTE> And becau&s;e by the cour&s;e of the Civil Law, both her dower and the goods that &s;he brought be&s;ides over and above, her husband being dead, came back to her again, the husband having but the u&s;e of them during life;<NOTE N="q" PLACE="marg">l. <HI>4.</HI> co. &s;olut: matrimon:</NOTE> therefore where there was either chil|dren or kindred, it did not admit the wife to have any part or portion in the husbands e&s;tate, but did leave her to enjoy her own.</P>
<P>But if the ca&s;e were &s;uch, that &s;he had no portion to bring in marriage, or had but a &s;lender one, and that &s;he has nothing or not enough of her own to &s;ub&s;i&s;t with, nor otherwi&s;e be provided for by her husband, the Law does then allow her a fourth part out of her husbands e&s;tate, if there be three children or under; but if there be more, &s;he &s;hall then have an equal &s;hare 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, &s;he &s;hall have the property there|of for ever.<NOTE N="r" PLACE="marg">Auth: praeterea. co. Unde vir &amp; Uxor: &s;chneidw: loc: citat: Tit De &s;ucee&s;: inter v. r: &amp; ux: tu: <HI>14.</HI> &s;l. <HI>20.</HI> Co. De Tran&s;act,</NOTE></P>
<P>But there is nothing that the Civil Law is more &s;trict and &s;ol|licitous in, then to keep men fa&s;t to &s;uch promi&s;es, covenants, and free gifts that they have made to others, though made ne|ver &s;o liberally and freely, and without any con&s;ideration at all.
<PB N="88" REF="52"><HI>Nihilita fldei congruit humanae, qu&agrave;m ea quae placuerant, cu&s;ta|diri;</HI><NOTE N="&s;" PLACE="marg">l. <HI>20</HI> Co. De Tran&s;aot.</NOTE> Nothing &s;uits better with common hone&s;ty, then that tho&s;e things which have been once a&s;&s;ented unto &s;hould be ob|&s;erved. Which it will have binding and obligatory, though any right or property that a man has, be thereby pa&s;&s;ed and con|veighed away. <HI>Nihil tam conveniens e&s;t naturali aequitati, qu&agrave;m voluntatem domini volentis rem &s;uam in alium transferri, ratam haberi;</HI><NOTE N="t" PLACE="marg">Parag. <HI>1.</HI> In&s;t. De v. rb. ohligat.</NOTE> 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, &s;hould &s;tand of force. And the Law is the &s;ame, when a man without any asking does of him&s;elf free|ly give any thing to another, though he does not pre&s;ently part with the po&s;&s;e&s;&s;ion.<NOTE N="u" PLACE="marg">l. <HI>35.</HI> parag. ult Co. de Donat.</NOTE> The rea&s;on that is given by the Law is, <HI>C&ugrave;m in arbitrio cuju&s;cunque &s;it hoc facere quod in&s;tituit; oportot eum vel minim&egrave; ad hoc pro&s;ilire, vel c&ugrave;m venire ad hoc proper ave|rit, non quibu&s;dam excogitatis artibus &s;uum propo&s;itum defraudare, tantamque indevetionem quibu&s;dam qua&s;i legitimis velamentis protegere;</HI> When it is in every mans free power to do as he pur|po&s;es at fir&s;t, he ought either not to offer it at all, or when he has gone &s;o far as to pa&s;s his word, he &s;hould not &s;eek by any devi&s;ed artifices to &s;lip from his fir&s;t intention, or to prop up &s;o much unworthine&s;s with any fair or colourable pretences. Onely a free giver has this favour &s;hewed him, that he &s;hall not be ur|ged to make good his word any further, then <HI>in quantum facer<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> pote&s;t, habita ratione ne egeat,</HI> &s;o far as he is able to perform, and not want him&s;elf.<NOTE N="x" PLACE="marg">l. <HI>28.</HI> Dig. de reg jur.</NOTE> Nor &s;hall he be &s;o &s;everely dealt with, as one that has debts to pay, <HI>Pinguius donatori &s;uccurrere debemus, qu&agrave;m ei qui verum debitum per&s;olvere compellitur; ne liberali. tate &s;ua inops fieri periclitetur,</HI> &s;ayes the Law;<NOTE N="y" PLACE="marg">l. <HI>49, 50.</HI> Dig. De re judic.</NOTE> We mu&s;t lend a more favourable hand to a free benefactor, then to one that is to pay a ju&s;t debt; le&s;t a mans freene&s;s &s;hould expo&s;e him to the danger of extreme want and penury. And albeit it be a rule in the Civil Law, that a bare promi&s;e or compact, call'd <HI>Nu|dum Pactum,</HI> is not obligatory, nor &s;hall give any cau&s;e of acti|on:<NOTE N="z" PLACE="marg">l <HI>45.</HI> Dig. de pact.</NOTE> Yet when there is di&s;cerned a &s;eriou&s;ne&s;s and an advi&s;ed purpo&s;e in the promi&s;er, &s;o that he does not do it &s;uddenly, and <HI>ad captandam benevolentiam,</HI> to get favour onely; or if it be manife&s;t, that he does it out of pure liberality, the want of re|compence
<PB N="89" REF="52">or con&s;ideration will not make it <HI>Nudum Pactum,</HI> but that an action &s;hall ari&s;e upon it, and he &s;hall be bound to perform it. Or if &s;uch promi&s;e or compact be put into wri|ting, which may argue it to be &s;erious and deliberate; the de|fect of a valuable con&s;ideration will not make it to be a <HI>Nudum Pactum,</HI> but that it &s;hall bind; and he that made it &s;hall be en|joyned to perform it al&s;o, though he received nothing at all in recompence for it.<NOTE N="a" PLACE="marg">Mae&s;tert. de ju&s;t. Roman. Leg. lib. <HI>1.</HI> ca. <HI>31, 33.</HI></NOTE></P>
<P>When the Civil Law gives way to two that are indebted each to other, that when either &s;ues, the other may plead in bar the debt which the complainant ows him; which if it be equal, it &s;trikes it off wholly, or le&s;&s;ens it if it be under, and &s;o by di&s;counting, a mutual di&s;charge ari&s;es without any money paid; or not &s;o much as is demanded; who &s;ees not that this part of the Civil Law is e&s;tabli&s;hed upon &s;o much natural equity and rea&s;on, that it had been a Law of it &s;elf, if the Romans had not made it &s;o, and ought to be of force every where throughout the World, it is &s;o full of pure ju&s;tice and rea&s;on? <HI>Intere&s;t enim no&s;tra potius non &s;olvere quam &s;olutum repetere;</HI><NOTE N="b" PLACE="marg">l. <HI>3.</HI> Dig. de compen&s;at.</NOTE> It is an advantage rather not to pay at all, then to pay once, and be put to demand the &s;ame again. And, <HI>dolo facit qui petit id quod mox redditurus e&s;t.</HI><NOTE N="c" PLACE="marg">l. in condem|natione. parag. <HI>3.</HI> Dig. de reg. jur.</NOTE> His intent mu&s;t needs be fraudu|lent, that will exact that which he mu&s;t render again to him from whom he receives it. Be&s;ides, he that will rightly ask his due, mu&s;t yeeld to another what is due to him. And albeit it may be &s;aid, that he may al&s;o &s;ue to recover that which is ow|ing unto him; yet, <HI>fru&s;tra fit per plura quod fieri pote&s;t per pau|ciora;</HI><NOTE N="d" PLACE="marg">l. <HI>10.</HI> Co. De Judic.</NOTE> A &s;econd action is a needle&s;s trouble and charge, which may be brought to an end by one. Stoppage therefore is unque|&s;tionably the mo&s;t natural, equal, and ea&s;ie way of payment; provided, that the debt that is &s;et again&s;t the debt demanded, be of the &s;ame kind, and clear without di&s;pute; which if it be, it may be pleaded even after judgment, to hinder execution.<NOTE N="e" PLACE="marg">Sichard. in Rubr. Co. de compen&s;at.</NOTE> Yet it will not &s;uffer me to plead a debt again&s;t him that has put into my hands a &s;umme of money in tru&s;t to keep for him, be|cau&s;e my faithfulne&s;s and truth was here relied upon; nor again&s;t the Exchequer that demands tribnte or cu&s;tome, for that the &s;afety of the people is therein concerned.<NOTE N="f" PLACE="marg">Parag. <HI>30.</HI> In&s;t. de act. l <HI>3.</HI> Co. de compen&s;as.</NOTE></P>
<PB N="90" REF="53">
<P>The Romans did &s;o throughly &s;ee the nece&s;&s;ity that lay upon men to perform mutual offices and kindne&s;&s;es each to other, that to encourage men the more to pay the&s;e reciprocal du|ties, &s;o nece&s;&s;ary to each others common being, the &s;cope of their Laws tended to &s;ecure all men from &s;u&s;taining any pre|judice by being officious or active for the benefit of other men. If therefore in my friends ab&s;ence I expend money, or contract a debt upon my &s;elf to accommedate and improve his bu&s;ine&s;s, though I did it without his privity or knowledge, the Givil Law will &s;ee all that I have laid out &s;hall be re&s;tored me, and will compell him to &s;ave me harmle&s;s, where either I have or can po&s;&s;ibly &s;uffer detriment for his &s;ake. For, <HI>&s;icut aequum e&s;t,</HI> &s;ayes Gaius, <HI>negociorum ge&s;torem actus &s;ui rationem reddere, &amp; eo nomine condemnari, quicquid vel non ut oportuit ge&s;&s;it, vel ex his negociis retinet: ita ex diver&s;o ju&s;tum e&s;t, &s;i utiliter ge&s;&s;it, prae|&s;tari ei, quicquid eo nomine vel abe&s;t ei, vel abfuturum est;</HI><NOTE N="g" PLACE="marg">l. <HI>2.</HI> Dig. de ne|go. ge&s;t.</NOTE> As it is but fitting, when I undertake to act in another mans bu|&s;ine&s;s, I &s;hould give an account for what I do, and an&s;wer for any thing I have done ami&s;s therein, and render unto him &s;uch profits as his affairs and goods have yeelded: So on the other|&s;ide it is but ju&s;t, where I have &s;erved him with &s;ucce&s;s and ad|vantage, that there he &s;hould reimbur&s;e me all that I have u&s;efully expended, and free me of all pre&s;ent and future preju|dice what&s;oever. Hence is it, that if I pay another mans debt with my own money; or free from captivity anothers &s;on or &s;uch neer kin&s;man, whom nature would oblige him to redeem, or if being a Phy&s;itian I attend and pro&s;ecute the cure and reco|very of anothers &s;ervant that is &s;ick or wounded: in none of the&s;e ca&s;es will the Law &s;uffer me to be a lo&s;er in any mea&s;ure; for what co&s;t I have been at, or what&s;oever I have disbur&s;ed &s;hall be allowed me: <HI>Iniquum e&s;t,</HI> &s;ayes Gaius, <HI>officium &s;uum alicui e&s;&s;e damno&s;um;</HI><NOTE N="h" PLACE="marg">l. <HI>7</HI> Dig. Te|&s;tam. quemadm. aper.</NOTE> It is unrea&s;onable, that a man for his courte&s;ie and goodne&s;s &s;hould reap a prejudice. Upon the equi|ty hereof is that proceeding in the Admiralty Court clearly ju|&s;tified, whereby, if a Ship being &s;et upon by Pyrats or by ene|nemies, &s;hall be re&s;cued by anothers Ship &s;ea&s;onably coming in to her re&s;cue; it charges the Ship that is thus redeemed with &s;alvage money to the other that did &s;o endanger her&s;elf, to pre|&s;erve
<PB N="91" REF="53">her; that recompence being but in lien of all dammages thereby &s;u&s;tained, and for future encouragement to others to fight in the defence of tho&s;e that they &s;ee a&s;&s;ailed hereafter. Upon the &s;ame equity is it, that when a Ship is in danger to be ca&s;t away through a raging tempe&s;t, if to lighten the Ship, &s;ome of the heavie&s;t goods belonging to others be thrown overboard, and thereby the Ship and the re&s;t of the goods comes &s;afe home, the lo&s;s is made common and reparable by the whole. <HI>Aequi&s;|&s;imum enim e&s;t,</HI> &s;ayes Paulus, <HI>commune detrimentum fieri eorum, qui propter ami&s;&s;as res aliorum con&s;ecuti &s;unt ut merces &s;uas &s;al|vas haberent;</HI><NOTE N="i" PLACE="marg">l <HI>2.</HI> Dig Ad leg. Rbod.</NOTE> It is mo&s;t equitable, that their wares &s;hould joyn to make up that lo&s;s, which was the onely means whereby they were pre&s;erved.</P>
<P>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 &s;hall be found and met with (though it is other|wi&s;e in goods taken by an enemy in a ju&s;t and open war) yet if a man &s;hall expend his own money to redeem them out of the Pyrats hands, not for his own u&s;e, or to make a good bargain for him&s;elf, but with an intent to bring them home to their true owner; in this ca&s;e, if the owner will have them, he mu&s;t fir&s;t lay dawn the purcha&s;e money.<NOTE N="k" PLACE="marg">l. <HI>6.</HI> Dig. de Captiv. &amp; po&s;t|lim. rever&s; l. <HI>2.</HI> parag. <HI>3.</HI> Dig. ad. leg. Rhod.</NOTE> Nay, &s;ometimes the Law will enjoyn a man to pay for that which he had got before. For if three be taken pri&s;oners in war, and one be permitted to go home to procure mony to pay for the ran&s;oming of them all, &amp; a condition added, that if he that is let go returns not, the two that are left behind &s;hall &s;tand ingaged for his ranfome as well as for their own; in this ca&s;e what money &s;oever they lay down for him, he is bound to repay them, though he had gotten his liberty before.<NOTE N="l" PLACE="marg">l. <HI>21.</HI> Dig. de. Negoc. ge&s;t.</NOTE> For the Law will not &s;uffer a man to be damnified by any act which is done u&s;efully in contemplation of another.</P>
<P>And herein the Law does not &s;o much look upon the &s;ucce&s;s or &s;equel, as the good will and probable undertaking. And therefore if I &s;hould fence or ca&s;t a wall about another mans I&s;land to keep it from overflowing, and it is overflown not|with&s;tanding; or if I be&s;tow paines and co&s;t to cure another mans child or &s;ervant, and he dies, yet the Law will &s;ee me &s;a|tisfied. <HI>Nam &s;ufficit, &s;i utiliter ge&s;&s;i, et &s;i effectum non habuit ne|gocium,</HI> &s;ayes <HI>&V;lpian;</HI><NOTE N="m" PLACE="marg">l. <HI>10</HI> Dig. de. negoc. ge&s;t.</NOTE> It is &s;ufficient that I did what was to
<PB N="92" REF="54">be done, though the intended effect did not en&s;ue.</P>
<P>But here &s;ome caution and warine&s;s mu&s;t be u&s;ed. For he that thus acteth for another, mu&s;t be &s;ure that he does no more then he that he acteth for would have done for him&s;elf, neither mu&s;t he expend any more then is profitable and nece&s;&s;ary, and he can bear.<NOTE N="n" PLACE="marg">l. <HI>10.</HI> parag. <HI>1.</HI> Dig eod.</NOTE> Al&s;o he mu&s;t not act after any countermand be once &s;ent him, or that he be once bidden to de&s;i&s;t.<NOTE N="o" PLACE="marg">l ult. Co. eod.</NOTE> For in neither of the&s;e ca&s;es will the Law help him.</P>
<P>Further, if he be a father, or other of mo&s;t near relation, that deals for the benefit &amp; in the concernments of &s;uch an one, as the Law may po&s;&s;ibly pre&s;ume he does it rather to te&s;tifie his natural affection towards him, then to demand any thing of him for the &s;ame; I &s;ay, if there be any &s;uch proximity or nearne&s;s, and yet an eye to to future &s;atisfaction, he mu&s;t declare and make prote&s;tation, that it is done with that intent, and not <HI>do|nandi animo,</HI> not out of any mind to be&s;tow it freely, but to be allowed for the &s;ame; el&s;e the Law will &s;trike it out upon the &s;core of affection and natural obligation. And &s;o did <HI>Alexan|der Severus</HI> declare to Mother <HI>Herennia,</HI> who when &s;he had fed and maintained at her Table her children, and laid out mo|ney be&s;ides for their other u&s;es; when they came of age, &s;he de|manded &s;atisfaction of all from them, but being denied it, &s;he complained to the Emperour, who made her this an&s;wer, <HI>Ali|menta quidem quae filiis tuis prae&s;titi&s;ti, tibi reddi non justa rati|one po&s;tulas; c&ugrave;m id exigente materna pietate feceris. Si quid au|tem in rebus eorum utiliter &amp; probabili more impendi&s;ti, &s;i non &amp; hoc materna liberalitate &s;ed recipiendi animo &s;eci&s;&s;e te o&s;tende|ris, negociorum ge&s;torum actione id con&s;equi potes;</HI><NOTE N="p" PLACE="marg">l. <HI>11.</HI> Co. eod.</NOTE> Thou ha&s;t no ju&s;t rea&s;on to demand payment for that alimony and &s;u&s;te|nance which thou did&s;t afford thy children, for very natural piety did require it of thee. But if thou ha&s;t u&s;efully and in a probable hope to advantage them, expended al&s;o money about their bu&s;ine&s;s; if thou can&s;t make it good that thou did&s;t it not out of a free mind, nor meerly as a Mother, but with an expe|ctation to be reimbur&s;ed thereof by thy children, the Law will enforce them to pay it thee back again.</P>
<P>La&s;tly, he that will voluntarily and of him&s;elf, being not com|mi&s;&s;ioned, act in anothers bu&s;ine&s;s, if he intends to ground any demand upon it, he mu&s;t be &s;ure, not onely to think and intend
<PB N="93" REF="54">a benefit or advantage to him whom he is about to &s;erve, but it mu&s;t be really &s;o. For let him think it never &s;o beneficial, and wi&s;h it never &s;o much, yet if it be not &s;o indeed the lo&s;s will be his; and he can challenge no &s;atisfaction for what he does or expendeth. <HI>&V;t enim eventum non &s;pectemus,</HI> &s;ayes U<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">pian, <HI>nego|cium debet utiliter e&s;&s;e coeptum;</HI><NOTE N="q" PLACE="marg">l <HI>10.</HI> parag. <HI>1.</HI> Dig. eod.</NOTE> Though we value not the &s;ucce&s;s, yet it is requi&s;ite that it &s;hould be evidently u&s;eful or nece&s;&s;ary when it is fir&s;t undertaken.</P>
<P>La&s;tly, (not to &s;ail any longer in an Ocean &s;o va&s;t and infi|nite, having given in&s;tances enough to mea&s;ure the re&s;t of the Law by, <HI>tanquam ex pede Herculem</HI>) 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 mu&s;t ab&s;tain, and wherein they may take their full freedome;<NOTE N="r" PLACE="marg">I egis vi<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">us e&s;t in perare, veta<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">t, permi<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">te|re, puntre. l. <HI>7.</HI> Dig. de legth.</NOTE> yet no Law has ever done it &s;o fully and perfectly as this has done. For Princes, Rulers, Councellours of State, Judges, &s;ubordinate Magi&s;trates, Advocates and Clients, Proctors, Regi&s;ters and Notaries, Ma&s;ters of families, Husbands and Wives, Children and Servants, Ma&s;ters and Scholars, Tutours and Pupils, Mer|chants, Factours, Buyers and Sellers, Letters and Hirers, Bor|rowers and Lenders, Officers and Souldiers, open Enemies as well as allies and Confederates, Emba&s;&s;adours and Nuntios, Conquerours and Conquered, Owners, Ma&s;ters, and Captains of Ships, Pilots, Mariners and Pa&s;&s;engers, Aliens and Natives, Fiduciaries, Mediatours, Sub&s;titutes; and la&s;tly, all &s;orts of people of what age, degree, or condition &s;oever they be, may read their true&s;t duties in this Learning, and be directed how to order and demean them&s;elves aright in their &s;everal offices and functions. So that when the learning of this Law is thus uni|ver&s;al, running through the &s;everal negociations and matters of intercour&s;e between Man and Man, Nation and Nation, and ha|ving a re&s;olution ready for all &s;uch que&s;tions as ari&s;e upon them; and is &s;o rational withall, that its deci&s;ions are rather the &s;trong enforcements of rea&s;on, then any commands of will; it ought to be no matter of wonder to us, that it has found &s;o much credit and authority with Chri&s;tian Nations, as to make it the rule to end their greate&s;t Controver&s;ies.</P>
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<TRAILER>The End of the Fir&s;t Book.</TRAILER>
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<DIV1 TYPE="title page">
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<P>LEX LEG&V;M: OR, THE EXCELLENCY Of the Roman CIVIL LAW, Above all other HUMANE LAWS WHATSOEVER.</P>
<P>The Second Part.</P>
<P><HI>London,</HI> Printed for <HI>R. Roy&s;ton,</HI> at the Angel in <HI>Ivy-Lane.</HI> 1656.</P>
</DIV1>
</FRONT>
<BODY>
<DIV1 N="2" TYPE="book">
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<HEAD><HI>LEX LEGUM:</HI> OR, THE EXCELLENCY Of the Roman CIVIL LAW, Above all other HUMANE LAVVS WHATSOEVER.</HEAD>
<DIV2 N="1" TYPE="chapter">
<HEAD>CHAP. I.</HEAD>
<ARGUMENT>
<P>That the greatne&s;s and &s;plendour of the Roman Empire does evidence the &s;ingular vertue of the Law it &s;elf, to which, as to its proper cau&s;e, it may be a&s;cribed.</P>
</ARGUMENT>
<P>_ALbeit it be prai&s;e &s;ufficient for the Roman Civil Law, that it hath more of natural equity and pure rea&s;on in it then any other Law of Man; and that more need not be &s;aid, to divert a Nation or people from throwing it out of their Territories, or di&s;e&s;teeming it, then that they may thereby &s;eem to aban|don their own rea&s;on, and &s;tifle the very dictates of nature,
<PB N="98" REF="57">and even &s;top up that fountain from whence all their own par|ticular Laws were at fir&s;t derived (for, <HI>lex Romanorum legum omnium Mater nuncupatur,</HI><NOTE N="a" PLACE="marg">Addit. ad Ca|pitul. Lud. Im|per. ca. a. tn God. leg. Antiqu.</NOTE> the Roman Law is called the Mo|ther of all Laws that have &s;ince been made:) Yet becau&s;e there are many other grounds upon which it may be yet further ex|toll'd and &s;et up above other Laws, I think I cannot &s;pend time and pains better then to &s;et them down, e&s;pecially when I &s;ee every thing is laid hold on to cry that profe&s;&s;ion down.</P>
<P>And &s;urely if the di&s;pen&s;ation of right ju&s;tice be a principal means to make a State glorious and flouri&s;hing, this Law mu&s;t needs &s;urpa&s;s in excellency all other Laws, by how much the Roman State, whch was all along carried on by that Law, did in greatne&s;s exceed, and in &s;plendor out-&s;hine all other States and Empires that have yet been. Touching which the Roman &s;tory every where gives us to unde&s;tand, that the Roman State in proce&s;s of time grew &s;o large in Dominion and Power, that it &s;pread it &s;elf almo&s;t over the whole World, there being few Nations which were not brought under its rule and govern|ment; and indeed was e&s;teemed the common countrey of all men, and the Center of the whole earth. <HI>Tantae erant Romanorum vires, ut A&s;ia, Africa, &amp; maxima Europae parte &s;ubactis, ii&s;dem &s;erme quibus Solis cur&s;us metis, imperium &s;uum finirent,</HI> &s;ayes <HI>Loccenius;</HI><NOTE N="b" PLACE="marg">Pe<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">iod. Im|per. lib. <HI>4.</HI> ca. <HI>5.</HI></NOTE> The potency of the Romans was grown to be &s;uch, that <HI>A&s;ia, Africa,</HI> and the greate&s;t part of <HI>Europe</HI> being Conquered, the Sun and the Empire did almo&s;t run the &s;ame race.</P>
<P>It maintained intercour&s;e of Trade, and held corre&s;pon|dence with all other Nations, of what &s;ort con&s;titution, and language &s;oever: It was the common<NOTE N="c" PLACE="marg">Nihil princi|pe diguius, nihil magis optan|dum, qu&agrave;m di&s;|&s;idiorum ac bel|lorum inter po|pules arbitrum <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ieri; ut olim S<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">natus Popu|lufque Romanus propter &s;ummam virtutis quam de &s;e ip&s;e concitarat <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">pinionem. <HI>Bo|din. de rep. lib: 5. ca. 6.</HI></NOTE> Judge and Umpire to arbitrate the differences of other Princes and people: It was the &s;eat of Learning, and receptacle of all learned men: It con|tinued flouri&s;hing many hundreds of years; during all which time it dealt in affairs of the greate&s;t con&s;equence and variety, and did increa&s;e in great plenty and abundance of all things; and what&s;oever was in any kind rare, curious, or exqui&s;ite in any part of the earth be&s;ides, it was brought thither. And therefore <HI>Athenaeus</HI> has not doubted to call <HI>Rome</HI> in expre&s;s termes, <GAP DESC="foreign">, the Abridgment and Summary
<PB N="99" REF="57">of the whole World; as if <HI>Rome</HI> wanted nothing which all the other parts of the earth afforded; or as if we ought to e&s;teem it <HI>Orbem in urbs,</HI> the wide World confined in that one City:</P>
<P>In congruity therefore of rea&s;on mu&s;t it be concluded, that a Nation in all other things &s;o much &s;uperiour unto others, mu&s;t al&s;o have Laws and rules of conduct proportionable; el&s;e could they never have brought to pa&s;s &s;o great and glorious things as they did: For by the benefit of whol&s;ome Laws and prudent order is it, that great atchievements are accompli&s;hed in a Common-wealth, and &s;uch mighty works effected. Here|upon <HI>Tully</HI> contemplating the Laws of <HI>Rome</HI> as well as their riches, does deelare, <HI>tautam &s;apientiam majoribus &s;uis in jure con&s;tituendo fui&s;&s;e, quanta fuit in his tantis opibus imperii compa|randia;</HI> they &s;hewed as great wi&s;dome in framing their Laws, as they did in getting the infinite wealth which their State then had.</P>
<P>And well it is ob&s;erved and delivered by many later writers, that in the Romane Empire, the greatne&s;s thereof is rather to be imputed and a&s;cribed to the wi&s;dome of their Laws and Go|vernment, then to their armes and valour. And although in <HI>Ve|getius</HI> his opinion, <HI>Di&s;ciplina militaris acriter retenta principa|tam terrarum Romano imperio peperit,</HI> Their &s;trict holding to the rules of Martial di&s;cipline made the Romans Ma&s;ters of the world; yet <HI>Sulpitius</HI> the Poet will not give it to that onely, for in his judgment,
<Q><L>Duo &s;unt quibus extulit ingens.</L>
<L>Roma caput, virtus belli, &amp; &s;apientia Pacis.</L></Q> it was their wi&s;e government in peace, as well as their &s;ucce&s;s in war that did &s;o highly advance their City; for what their armes did get, their Laws did keep, according to the &s;aying of Florus, <HI>Viribus parantur provinciae, jure retinentur. Thomas Aquinas</HI><NOTE N="d" PLACE="marg">Lib. <HI>3.</HI> de <HI>Re.</HI> gim. Prineip. ca. <HI>5.</HI></NOTE> &s;ayes, that though they got the Empire fir&s;t by inju|&s;tice, rapine, and bloud-&s;hed, yet they did de&s;erve to hold it and to have it e&s;tabli&s;hed upon them, for the good Laws they had ordained.</P>
<PB N="100" REF="58">
<P>Saint <HI>Au&s;tin</HI><NOTE N="e" PLACE="marg">Lib. 5. De civit. Dei ca: 12.</NOTE> de&s;igning to &s;et down how it came to pa&s;s that God did &s;o exalt and enlarge the Roman Empire, and what actions were the cau&s;e thereof, imputes it to their virtues, and to their heroick and gallant mindes; to their prudence and ho|ne&s;ty, rather then to their &s;trength and power. For he brings in <HI>Cato</HI> &s;peaking to the Romans of his own time, that had much degenerated from their Ance&s;tors: Think not, &s;aith he, that our Ance&s;try brought the City into this height by armes; if it were &s;o, we &s;hould make it far more admirable then ever, for we have greater plenty and abundance of men, more confe|derates, a greater &s;tore al&s;o of armes and hor&s;es then they had. But they had other means which we want, indu&s;try at home, equity abroad, freedome in con&s;ultation, and purity of minds in all men, free from lu&s;t and enormity: For the&s;e we have gotten riot and avarice, publick beggery and private wealth: riches we prai&s;e, and &s;loth we follow: good and bad are now undi&s;tingui&s;hed, ambition devouring all the rewards due to ver|tue. Nor wonder at it, when each one patcheth up a private e&s;tate; when you &s;erve your lu&s;ts at home, and your profit and partiality here in the Senate. This is it that laies the State open to all incur&s;ion of others. Again, in the &s;ame place he &s;ayes of them, That they were greedy of prai&s;e, and bountiful of their pur&s;es; they loved glory and wealth hone&s;tly gotten; Honour they dearly affected, but through virtue, offering willingly both their lives and their e&s;tates for renown. The zealous de&s;ire of this one thing made them &s;et a&s;ide all other inordinate affecti|ons what&s;oever; and hence they de&s;ired to keep their Coun|try fir&s;t in freedome, and then in Soveraignty; becau&s;e they &s;aw how ba&s;ene&s;s went with &s;ervitude, and glory with do|minion.<NOTE N="f" PLACE="marg">Amorc primi|t&ugrave;s libertatis, po&s;t etiam de|min <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">tionis, &amp; cupidit. te laudis &amp; glo i.e multa magna &s;eterunt.</NOTE></P>
<P>And then concludes; Wherefore, &s;aith he, whereas the Mo|narchies of the Ea&s;t had been a long time glorious, God re&s;ol|v&egrave;d to erect one now in the We&s;t al&s;o, which although it were after them in time, yet &s;hould be before them in greatne&s;s and dignity. And this he left in the hands of &s;uch men, (which he &s;uppo&s;es were not the generality of the people but &s;ome few on|ly, but tho&s;e very good and gallant men) to puni&s;h the loud and crying guilt of other Nations. And tho&s;e men were &s;uch,
<PB N="101" REF="58">as for honour and dominations &s;ake would have an ab&s;olute care of their Country, whence they received this honour; and would not &s;tick to lay down their own lives for their fellows, &s;uppre&s;&s;ing covetou&s;ne&s;s and all other vices onely with the de|&s;ire of honour.<NOTE N="g" PLACE="marg">Pro i&s;louno vitio, id e&s;t, amore laudis, pecuniae cupidi|tatem, &amp; mult<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> alit vitia cor|rum pentes;</NOTE></P>
<P>And then in the fifteenth Chapter of the &s;ame Book, &s;peaking &s;till of the Romans, and the cour&s;e they took in the prudent conduct of their affairs, he clo&s;eth thus mo&s;t excellently, <HI>His emnibus artibus tanquam vera via ni&s;i &s;unt ad honores, imperium, gloriam: honor ati &s;unt in omnibus fere gentibus: imperii &s;ui le|ges impo&s;uerunt multis gentibus: hodie&abque; liter is &amp; hi&s;toria glorio|&s;i &s;unt pene in omnibus gentibus. Non e&s;t qu&ograve;d de &s;ummi &amp; veri Dei ju&s;titia conquerantur; perceperunt mercedem &s;uam;</HI> By the&s;e Arts as by &s;ure &s;teps they climbed to honour, rule, glory: their name was magnified almo&s;t in all Nations; they &s;ent out their Laws to many Nations, and they were obeyed: there is almo&s;t no Nation, but their Hi&s;tories and writings mention them. No rea&s;on have they to murmur at the ju&s;tice of the true and high God; they have had their reward.<NOTE N="h" PLACE="marg">Terrenam glo|riam excellen|ti&s;&s;imi imperii Deus <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">orce&s;&s;it, ut redderctur merces bonis ar|tibus corum, id e&s;t, virtutibus, quibus ad tan. tam gloriam pervenire nite|bantur.</NOTE></P>
<P>Although therefore the Romans in their gallant and heroick minds they bore, did propo&s;e to them&s;elves no other end but their temporal honour and earthly greatne&s;s, not once think|ing 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 &s;uch thing: yet it mu&s;t be acknowledg'd that the effects which have flowed from their de&s;ire of glory and rule, have been &s;ingular and admira|ble; among&s;t which their ju&s;t, rational, and hone&s;t Laws do de&s;erve to make their memory &s;till famous among&s;t men, be|cau&s;e &s;o much u&s;e has been made thereof ever &s;ince, in the go|verning of &s;o many States, Empires, and people. And well did &s;ome of the ancient Fathers of the Church, as al&s;o &s;ome of our later Divines ob&s;erve, that without doubt God did therefore indue the Romans with &s;uch admirable skill in government and Law making, that after Nations might have a good example to follow. It is St <HI>Au&s;tins</HI> judgment,<NOTE N="i" PLACE="marg">Lib. 5. De ci|vitat. Dei. ca. 6.</NOTE> That the Roman Empire had that glorious increa&s;e, not onely to be a fit guerdon to the vertues of &s;uch as bore rule there, but al&s;o that the Citizens of
<PB N="102" REF="59">heaven in their pilgrimages upon earth, might &s;eriou&s;ly and at|tentively fix their eyes upon tho&s;e examples. And before him <HI>Tully,</HI> as <HI>Lnd. Vives</HI> hath cited him,<NOTE N="k" PLACE="marg">Lib. de cau&s;. corrupt. art.</NOTE> being to draw a Model of a Common-wealth, and Laws to govern it withall, &s;ets be|fore his eyes no other pattern but that of the Romans, to which in his judgment all people &s;hould in prudence &s;hape and con|form them&s;elves.</P>
<P>And that our Saviour Chri&s;t him&s;elf (God Almighty from all eternity &s;o di&s;po&s;ing it) &s;hould be born under the govern|ment of the Roman Empire, and &s;ubmit to it too; may it not more then probably be inferred, that it was Gods &s;ecret intent and purpo&s;e, if not to bring all Chri&s;tians under &s;ubjection to tho&s;e very Laws under which their head was born and lived; yet at lea&s;t by that &s;ignal act of his to recommend that policy and government to their imitation, which might be a means to propagate the Go&s;pel of Chri&s;t, &amp; to &s;end it forth to the whole world, which that Empire &s;eemed wholly to command? St <HI>Au|&s;tin</HI><NOTE N="l" PLACE="marg">Lib. 18. de civit. Dei ca. 22.</NOTE> makes the Univer&s;al rule of the Romans a &s;pecial de&s;ign of God for the good of mankind. <HI>Per populum Romanum pla|cuit Deo terrarum orbem debellare, ut in unam &s;ocietatem reipub|licae legum&abque; perductum long&egrave; late&abque; pacaret;</HI> It was therefore, &s;aith he, Gods plea&s;ure that the Romans &s;hould conquer and command the whole earth, that being brought under one com|munion of government and form of Laws, it might the better enjoy peace both far and wide. <HI>Videtur Dominus Monarchiall Romanorum con&s;erva&s;&s;e &amp; prop<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">ga&s;&s;e, ut &s;imul propagaretur hone&s;ta eorum Politia, &amp; reprimeretur incondita barbaries alia|rum gentium,</HI> &s;ayes <HI>Baldwine;</HI><NOTE N="m" PLACE="marg">In his Pro|legom.</NOTE> Therefore was the Roman Empire by Gods permi&s;&s;ion &s;o far extended, that their good government might &s;pread the more, and the conver&s;ation of barbarous and wild Nations be made civil.</P>
<P>And indeed the continuance of it in &s;uch diver&s;ity of govern|ments, as Kings, Con&s;uls, Tribunes, Dictators, Emperours, can|not but &s;hew a Divine power, and a mo&s;t prudent managery of affairs there in all vici&s;&s;itudes: For otherwi&s;e &s;o many chan|ges might in all likelihood have bred confu&s;ion, and &s;o con&s;e|quently &s;uppre&s;&s;ed their ri&s;ing to &s;o great an Empire; which as the la&s;t, &s;o it may be truly &s;tiled the greate&s;t that yet the world ever knew or heard of.</P>
<PB N="103" REF="59">
<P>Thus therefore the Roman Empire having climb'd up to &s;uch an height of Soveraignty, as to be a &s;pectacle &amp; an a&s;toni&s;hment to all other Nations;<NOTE N="n" PLACE="marg">Romani trium pulcherr <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">imarum virtutum, ju&s;ti|tiae inquam, for|titudin<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">s, ac pru|dentiae laudibus, imperatorii&s;que artibus cumulae|ti, populos om|nes in &s;ui admi|rationem conver|teru<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">s. <HI>Bodin|de rep. lib. 5. ca. 6.</HI></NOTE> and their government being generally propo&s;ed and look'd upon as a pattern, and by &s;ome judgments de&s;igned as an example by God him&s;elf for other States to fol|low and be directed by: What does it witne&s;s le&s;s, then that the Laws of &s;uch a Nation and government mu&s;t needs be &s;ingu|lar and incomparable?</P>
</DIV2>
<DIV2 N="2" TYPE="chapter">
<HEAD>CHAP. II.</HEAD>
<ARGUMENT>
<P>The fundamentals of the Roman Civil Law were fetch'd from other States, which did then excel others mo&s;t in Policy and Government.</P>
</ARGUMENT>
<P>THe fir&s;t grounds and foundations of the Civil Law were not of the Romans own compo&s;ing, but were fetch'd from other Nations, and tho&s;e the be&s;t governed that were in being: for when they had ca&s;t off Kingly government, and put them&s;elves into the form of a Common-wealth, they would no longer endure the Laws that their Kings had made, partly be|cau&s;e they would not &s;uffer any memory of their power to re|maine, and partly becau&s;e the &s;etting up of a new government would require nece&s;&s;arily the making al&s;o of new Laws, which might corre&s;pond therewith, Therefore &s;ince a pre&s;ent &s;upply of Laws was nece&s;&s;ary (arbitrary rule being intolerable) and that to frame a body of Laws them&s;elves in a &s;hort time, was impo&s;&s;ible, and not by a new-born State to be effected; they appointed three eminent men to go to <HI>Athens,</HI> and other Grae|cian Cities which had been famous for rule and admini&s;tration of ju&s;tice above others, to fetch from thence the choice&s;t Laws they could find.</P>
<P>At the return of tho&s;e three men, the Con&s;uls that had bore the &s;way were depo&s;ed, and both their Authority and En&s;igns
<PB N="104" REF="60">given unto ten men newly elected for the government of the State, and were thence called <HI>Decemviri,</HI> who&s;e office it was to &s;elect the be&s;t of the&s;e Laws, and by them preci&s;ely to rule and do ju&s;tice to all the people. The Laws that they cho&s;e and be&s;t approved of, were written at fir&s;t in ten Tables of Bra&s;s, to which two Tables more being added afterwards, they were all &s;et up together in the open Market-place to be &s;een and read by the people, which ever after were di&s;tingui&s;hed by the name of <HI>Leges</HI> 12 <HI>Tabularum,</HI> The Laws of the 12 Tables.</P>
<P>To the direction of the&s;e Laws the Roman people were &s;ub|ject, and conformed them&s;elves for a long time, and they were the onely Law they had: Of the which <HI>Tully</HI><NOTE N="o" PLACE="marg">Lib. 1. De Orat.</NOTE> gives this high te&s;timony, that this one book of the&s;e Laws, both for u&s;eful|ne&s;s and wi&s;dome, did tran&s;cend all the books that all the Phi|lo&s;ophers of the world had written.</P>
<P>And although their engravement in bra&s;s could not pre&s;erve them from the injury of time, nor re&s;cue them from that uni|ver&s;al change that altered all things in the Roman Empire; whereby it came to pa&s;s, that &s;ome reliques onely of them are now extant, to the lamentation of all the learned: Yet the Hi&s;torians without any di&s;agreeing tell us, that the ri&s;e and beginning of all the Civil Law that we have in the books of <HI>Ju&s;tinian,</HI> came from tho&s;e Laws; Thus <HI>Livie, Tacitus, Sigo|nius,</HI> and <HI>Ro&s;inus.</HI> And no le&s;s is delivered by <HI>Pomponius</HI> him|&s;elf in his large Narrative of the beginning and progre&s;s of the Civil Law;<NOTE N="p" PLACE="marg">l. 2. Dig. De orig. jur.</NOTE> and as much by <HI>Justinian</HI> him&s;elf.<NOTE N="q" PLACE="marg">Parag. 10. In&s;t. de ju. nat. gent. &amp; civ.</NOTE></P>
<P>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 &s;everal of them entirely recited; and &s;ome of them confirmed and enlarged; others quite taken away; &s;ome of them dimini&s;hed onely, as to &s;ome circum&s;tances; others interpreted, as being very ob&s;cure and doubtful; &s;ome declared in what ca&s;es they &s;hall be of force, and in what not: and others &s;tretch'd to other ca&s;es not provided for in expre&s;s words, but in pre&s;umption thereby intended, becau&s;e &s;o much alike to them that were expre&s;&s;ed.</P>
<P>It was a Law of the 12 Tables, <HI>&V;t &s;i quis ho&s;tem concita&s;&s;et, civemve ho&s;ti tradidi&s;&s;et, capite poenas lueret;</HI><NOTE N="r" PLACE="marg">Part. 2. ca. <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">.</NOTE> that is, if any &s;hall
<PB N="105" REF="60">&s;tir up an enemy, or betray to the enemy any &s;ubject, he &s;hall be puni&s;hed with death. The &s;ame Law is cited in <HI>l.</HI> 3. <HI>Dig. Ad l. Jul. Maje&s;t.</HI> where and in other Laws of that Title it is decla|red, it &s;hall be high trea&s;on for any man to contrive any mi&s;|chief again&s;t the State, either in rai&s;ing tumults or levying war again&s;t the &s;upreme power of it, or even again&s;t the enemies of it without commi&s;&s;ion; or in holding corre&s;pondence with the enemy, or &s;ending any manner of aid unto them, or in help|ing to bring them into the Territories of the Common-wealth, or to betray the army or any part thereof, or any place of &s;trength into the enemies hand, or indeed to &s;urrender it cowardly without fighting when it may be kept, or to plot how publick ho&s;tages may e&s;cape, or for a General to leave the ar|my without leave obtained, or not to give up his charge to him that by publick appointment is to &s;ucceed him, after the State has once di&s;charged him: The puni&s;hment whereof is not onely capital, but the memory and name of the offender is to be re|membred no more, his goods are confi&s;cated, and not to go to his own children.<NOTE N="s" PLACE="marg">Li <HI>5.</HI> Co. ad l. Iul. Majest. pa|rag. <HI>1.</HI></NOTE></P>
<P>Again, by the Law of the 12 Tables it was provided, fir&s;t, that the cu&s;tody of &s;uch as were mad, and the managing of their e&s;tate &s;hould be in the hands of the next heir male: Al&s;o if any one come to be a prodigal or &s;pend-thrift, the Magi&s;trate fir&s;t examining the matter, &s;hould forbid him the ordering of his own e&s;tate, and the admini&s;tration thereof &s;hould be in the next heir male.<NOTE N="t" PLACE="marg">Part. <HI>3.</HI> ca. <HI>5, 6.</HI></NOTE> The la&s;t of which laws may be found &s;ingle in <HI>l.</HI> 1. <HI>Dig. De curator. furio&s;.</HI> and both of them joyned together <HI>In&s;t. De curator. parag.</HI> 3. Where the care of the Law in providing governours for tho&s;e that are not able to help them&s;elves, nor follow their affairs, is extended to Idiots, to per&s;ons that are deaf and dumb, and to &s;uch as labour under &s;uch an incurable di&s;ea&s;e as is never like to leave them, and renders them unfit to attend their bu&s;ine&s;s, as well as to mad men &amp; prodigals; declaring him to be a prodigal, <HI>Qui ne&abque; tempus ne&abque; finem expen&s;arum habet, &s;ed bona &s;ua dilacerando &amp; di&s;&s;ipando profundit,</HI> who wa&s;tes without regard either of time or mea&s;ure; a mad man, <HI>qui rabie quadam animi agitur,</HI> who is in a violeut fury; an idiot, <HI>qui &s;ine tumultu ac clamoribus de&s;ipit,</HI> who is void of under&s;tanding, but never
<PB N="106" REF="61">rages. And further, the Law proceedeth in avoiding and di&s;|anulling all contracts, negotiations and dealings, which &s;uch per&s;ons &s;hall have made for them&s;elves, after Guardians are once a&s;&s;igned them; yet with this difference, that a Prodigal, or &s;uch as have common rea&s;on, though otherwi&s;e very impo|tent and needing a curator, may contract to advantage them|&s;elves, though not to their lo&s;s and hinderance: But &s;uch as want capacitie and under&s;tanding, can do no good for them|&s;elves.<NOTE N="u" PLACE="marg">L. <HI>6.</HI> Dig. De verb. oblig. l. <HI>5.</HI> Dig-dereg. jur.</NOTE></P>
<P>And although the Law of the 12 Tables &s;eems to be&s;tow up|on the Guardian of &s;uch di&s;abled per&s;ons ab&s;olute power over their e&s;tates, yet the Civil Law will have that under&s;tood to reach no further then to the husbanding of their e&s;tates for their u&s;e and benefit; for it will not permit them to &s;ell, aliene, or mortgage any thing that does belong unto them, except that upon examination of the Magi&s;trate it be found advantageable and fit to be done, and that the Magi&s;trate does expre&s;ly make his decree to that purpo&s;e. In&s;omuch as if money be taken up by the Guardian for the need and to the u&s;e of any &s;uch per&s;on, and his land mortgaged for payment of it, yet if it be not done by the licen&s;e of the Magi&s;trate, the &s;erving of that impotent mans nece&s;&s;ity how extreme &s;oever, will not make that mort|gage the more forcible; &s;uch care has the Law to pre&s;erve the patrimony of &s;uch from being pa&s;s'd away. Yet &s;ince the mo|ney lent was &s;o well imployed, the Law that &s;uffers no man to be enriched with anothers detriment, gives the lender a per&s;o|nal action whereby to recover what he lent.<NOTE N="x" PLACE="marg"><HI>L. 2.</HI> Co. de cu|rat. furio&s;.</NOTE></P>
<P>La&s;tly, does the Civil Law afford more plentiful provi&s;ion on any &s;ubject then that of la&s;t Wills and Te&s;taments? Yet the fir&s;t ri&s;e and foundation of all that is written therein, came fir&s;t from that Law of the 12 Tables; <HI>&V;ti qui&s;que rei &s;ui lega&s;&s;et, ita jus e&s;to,</HI><NOTE N="y" PLACE="marg">Part. <HI>3.</HI> ca. <HI>11.</HI></NOTE> that is, As a man &s;hall order by his will in any thing that is his own, &s;o let it be. The very words of which Law are repeated, <HI>In&s;t. De leg. Falcid. in princ.</HI> and <HI>l.</HI> 120. <HI>Dig. De verb. &s;ignific.</HI> But the que&s;tions falling under this head, do not onely take up whole titles in the Law, and tho&s;e very large ones too, but al&s;o many of them lie di&s;per&s;ed up and down in all places and parts of the Law.</P>
<PB N="107" REF="61">
<P>So that generally it may be ob&s;erved, what Laws &s;oever are written almo&s;t on any &s;ubject, are but as &s;o many explanations or enlargements, made by the old primitive Lawyers, &s;uch as <HI>Gaius, Scaevola, Papinian, &V;lpian, Paulus, Affrican,</HI> and the re&s;t of tho&s;e 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 fir&s;t a forreign Law, but brought into the Roman Common-wealth by a common con&s;ent of all the people, from &s;uch Nations as for rule and government might ju&s;tly be an example to all their neighbours.</P>
<P>In like manner the Sea Laws that were admitted into the Ro|man State, and incorporated among&s;t their Laws, were fetch'd from another people, namely the people of <HI>Rhodes,</HI> I&s;landers in the Carpathian Sea, bordering upon <HI>Caria</HI> in <HI>A&s;ia,</HI> who in re|&s;pect of the mighty concour&s;e of &s;eafaring-men thither, and their continual trade and potency by Sea, grew &s;o expert in the regu|lation of all matters and differences thereto appertaining, and their determinations therein were e&s;teemed &s;o ju&s;t and equita|ble, that their Laws in &s;uch affairs have been held oracles ever &s;ince. And therefore <HI>Antoninus</HI> the Emperour to a complaint that was made unto him by <HI>Eudaemon,</HI> who&s;e goods had been &s;eized by &s;ome publick officers upon a &s;hipwrack, gave him this an&s;wer, <HI>Ego quidem Mundi Dominus, lex autem Ma|ris: Lege id Rhodia, quae de rebus nauticis prae&s;cripta e&s;t, judicetur, quatenus ei nulla nostrarum legum adver&s;atur;</HI><NOTE N="z" PLACE="marg"><HI>L. 9.</HI> Dig. De lege Rhod.</NOTE> That is, I am the Lord of the world, but the Law is the Empre&s;s of the Sea. Let the Rhodian Law which has the regulating of Sea matters decide it, &s;o that none of our own Laws be oppo&s;ite there|unto.</P>
<P>And generally it was their cu&s;tome and u&s;age, that when&s;o|ever they conquered any Nation, they did not onely give them Laws, as conquerours u&s;e to do to tho&s;e whom they &s;ubdue, but I may &s;ay, they received Laws from them too: For what Laws, practi&s;es, or wayes of government they found there or any where el&s;e where they came, that were laudable and u&s;eful in their State, they carried them home, and there put them in practi&s;e; ob&s;erving them rather with humility, then rejecting them with di&s;dain. <HI>Majoribus no&s;tris,</HI> &s;aith <HI>Salu&s;t,</HI> as <HI>Baldwine</HI>
<PB N="108" REF="62">quotes him in his <HI>Prolegomena,</HI> &s;peaking of the Romans; <HI>&s;uperbia non ob&s;tabat, quo minus aliena in&s;tituta, &s;i mod&ograve; proba erant, imi|tarentur. Imitari qu&agrave;m invidere bonis malebant, &amp; qu&ograve;d uti&abque; apud &s;ocios vel ho&s;tes idoneum videbatur, cum &s;ummo &s;tudio domi exequebantur;</HI> Our Ance&s;tors were not &s;o high minded, as not to imitate &s;uch rules and cu&s;tomes of other Nations as they found to be good, chu&s;ing rather to tread in the &s;teps of vertu|ous and well di&s;po&s;ed people then to envy them. Therefore what either their allies or enemies afforded that was u&s;eful and fitting, they greedily embraced and practi&s;ed it in their own State.</P>
<P>And if <HI>Salu&s;t</HI> may be thought partial, becau&s;e a Roman writer, let <HI>Polybius</HI> &s;peak, that was a Graecian: They were always &s;o wi&s;e, &s;aith he, as, <GAP DESC="foreign">, to take and apply the be&s;t cu&s;tomes of other Nations, to their own u&s;e. <HI>Athenaeus</HI> &s;aith the &s;ame, and declares it at large, how from the beginning and fir&s;t founding of the Common-wealth, they took from others the be&s;t points of policy and government.</P>
<P>And &s;o in the&s;e Laws of ours we have what all the wi&s;e&s;t and noble&s;t men in that Common-wealth (which was the mo&s;t flou|ri&s;hing and potent that ever was in the world) could of them|&s;elves by their wi&s;dome and rea&s;on devi&s;e, or could learn from other States in about a thou&s;and years; for about &s;o many years it was from the time of the Decemvirate unto <HI>Ju&s;tinians</HI> death. <HI>Tantae molis erat Romanas condere leges.</HI></P>
<P>From this example of the Romans, who admitted &s;o freely other Laws be&s;ides their own, and would rather &s;end about to borrow Laws from others, then want &s;uch as were nece&s;&s;ary and convenient for them&s;elves, we may learn to e&s;teem it nei|ther &s;hameful nor inconvenient for the people of this Nation, to give &s;uch an admittance to the Roman Civil Law here, as the Romans did in their State to the Laws of other Nations: For it mu&s;t needs draw after it much benefit, and no prejudice, if it be done with the&s;e cautions.</P>
<P>Fir&s;t, that it be a free and a voluntary act of our own, and not impo&s;ed upon us by a forreign power.</P>
<P>Secondly, that it be admitted meerly to &s;upply the defects of our own Laws, and to have a re&s;olving power in &s;uch ca&s;es
<PB N="109" REF="62">onely, where our own Laws have made no determination at all.</P>
<P>Thirdly, &s;o little to be made u&s;e of in oppo&s;ition to our own municipal Law, as not &s;o much as to be compared with it.</P>
<P>Fourthly, that it be of greate&s;t force in all ca&s;es where there is greate&s;t need of equity and a good con&s;cience, whereof there is more to be found in that Law then in any other Law of Man.</P>
<P>Fifthly, that it may order and determine all matters tran&s;act|ed and ari&s;ing upon the Sea, or contracted and done in forreign parts, to which the Laws of the Land are mo&s;t incongruous, and le&s;s &s;atisfactory to tho&s;e whom they concern, being chiefly &s;trangers and of another Nation.</P>
<P>La&s;tly, that if at any time the u&s;e and exerci&s;e thereof &s;hould be &s;tretch'd beyond the bounds that are allowed it, it &s;hould be penall; but be check'd by &s;uch equal and indifferent Umpires, as are parties in neither of both profe&s;&s;ions: For where an in|crochment is pretended to be made by either Law upon the o|ther, neither &s;eems to be competent enough to judge the diffe|rence, or to condemn the other.</P>
<P>Under the&s;e cautions, to admit the u&s;e of the Civil Law into this Nation, that in the doing of ju&s;tice, where our own Laws fail, we may be &s;ure to be &s;upplied by another, is no more then what the Romans them&s;elves, a renowned and wi&s;e people, did by the Laws of other Nations, and what other Nations do at this day by the Civil Law it &s;elf, which they do practi&s;e and u&s;e as frequently as they do their own.</P>
</DIV2>
<DIV2 N="3" TYPE="chapter">
<PB N="110" REF="63">
<HEAD>CHAP. III.</HEAD>
<ARGUMENT>
<P>That time and intervenience of fatal Accidents, that has &s;wept away &s;o many States together with all their Laws, and has quite aboli&s;hed the Roman State it &s;elf, has not yet been of force to aboli&s;h the Roman Civil Law, but that it is extant &s;till.</P>
</ARGUMENT>
<P>BE&s;ides that this Law was at fir&s;t derived from &s;uch Nations as in their time were renowned for Policy and Wi&s;dome, and was a chief means to convey the Romans to their greatne&s;s; this al&s;o may be &s;aid thereof that can be &s;aid of no other hu|mane Law be&s;ides, That though it has been never &s;een that any Law has la&s;ted longer then the State it &s;elf for whch it was fir&s;t ordained, but both have been buried in the &s;ame &s;epulchre to|gether; yet this Law is in being to this very day, after the Ro|man State it &s;elf has &s;o long laine intombed in its own a&s;hes. <HI>Jus Ju&s;tiniani prae&s;criptum libris, non Civitatis tant&ugrave;m e&s;t, &s;ed &amp; Gentium &amp; naturae; &amp; aptatum &s;ic e&s;t ad naturam univer|&s;am, ut imperio extincto, ip&s;um jus-diu &s;epultum &s;urrexerit ta|men, &amp; in omnes &s;e effuderit gentes humanas. Ergo &amp; Principibus &s;tat, et&s;i e&s;t privatis conditum &agrave; Ju&s;tiniano,</HI> &s;ayes <HI>Albericus Gentilis;</HI><NOTE N="a" PLACE="marg">Lib. <HI>1.</HI> De ju. Bell. ca. <HI>3.</HI></NOTE> The Law that is &s;et down in the books of <HI>Ju&s;tinian,</HI> is not the Law of one City onely, but is the Law of Nature and Nations; and is &s;o throughout fitted to very Nature it &s;elf, that when the Roman Empire was quite extinct, yet the Law of the Empire, after it had lain long as it were buried, &s;prung up again, and &s;pread it &s;elf into all Nations. Therefore now it is become a &s;tanding Law to Princes, although made at fir&s;t by <HI>Ju&s;tinian</HI> for the u&s;e of private men.</P>
<P>We know for certain, that at the fir&s;t erecting of Common|weals, when &s;ome certain kind of regiment was once approved, nothing was then further thought upon for the manner of go|verning, but all permitted unto their wi&s;dome and di&s;cretion,
<PB N="111" REF="63">which were to rule; the Princes word, beck, and rule, &s;erving in&s;tead of all Laws; who both in time of peace and war, &s;ent out their edicts from time to time, as the pre&s;ent occa&s;ion re|quired, all depending upon their full and ab&s;olute power, being them&s;elves not bound to any Laws or Cu&s;tomes at all. And that is it, for which <HI>Pomponius</HI><NOTE N="b" PLACE="marg">L. <HI>2.</HI> Dig. De Orig. jur. in princ.</NOTE> writeth, the Roman Common|weal to have been at the fir&s;t governed by Regal power, without u&s;e of any Law.</P>
<P><HI>Ju&s;tin</HI><NOTE N="c" PLACE="marg">Lib. <HI>2.</HI></NOTE> &s;aith of <HI>Athens,</HI> that there was a time, when <HI>Nullae civitati leges erant, quia libido Regum pro legibus habebatur,</HI> that the City was without Law, becau&s;e the wills of Kings were Laws. And <HI>Jo&s;ephus</HI> the Hi&s;toriographer in his &s;econd Book again&s;t <HI>Appian,</HI> de&s;irous to &s;hew the mo&s;t honourable Anti|quity of the Hebrews, and of their Laws, &s;aith, that <HI>Mo&s;es</HI> of all others was the fir&s;t that ever writ Laws; and that in five hundred years after, the word <HI>Law</HI> was never heard of; alledging in proof thereof, that <HI>Homer</HI> in &s;o many books as were by him written, never u&s;eth this word, <GAP DESC="foreign">, <HI>Law.</HI><NOTE N="d" PLACE="marg">Bodin de rep. lib. <HI>6.</HI> ca. <HI>6.</HI></NOTE> It may there|fore well be told us, that we have no cau&s;e to marvail, if we have no Laws at all tran&s;mitted unto us from tho&s;e fir&s;t times, there being then no certain &s;tanding Law any where.</P>
<P>Yet I am &s;ure, afterwards, when all people &s;aw that to live by one mans will became the cau&s;e of all mens mi&s;ery; this did nece&s;&s;itate &s;ucceeding ages to come unto Laws e&s;tabli&s;hed, wherein all men might &s;ee their duties before-hand, and know the penalties of tran&s;gre&s;&s;ing them,<NOTE N="e" PLACE="marg">Ut bone&s;torum ac turpium lex aeterna in menti|bus unju&s;cuju&s;. que no&s;trum ab immortali Deo fit in&s;cripta, poe|nae tamen qui|bus improbi ab injurio&s;a facino|ro&s;aque vita avocentur, in animis in&s;cripta &agrave; Deo nullae fu|erunt. <HI>Bodin. de rep. lib. 6. ca. 6.</HI></NOTE> and be more &s;ecure again&s;t the irregular pa&s;&s;ions of their Rulers, whom they found by wo|ful experience to be too apt to degenerate into Tyranny. And yet they have not re&s;ted here neither, but have committed the &s;ame to writing, that their &s;ubjects might have them continu|ally before their eyes; and to tran&s;mit them to po&s;terity al&s;o, le&s;t they that &s;hould come after, &s;hould vary from tho&s;e foun|dations on which the State was fir&s;t laid, and &s;o ha&s;ten the downfall of the whole &s;ociety.</P>
<P>Hence it has come to pa&s;s, that the Laws of &s;ome certain peo|ple have been more famous then the Laws of others, and the Authours mentioned with high prai&s;e and commendation. <HI>So|lon,</HI> who made Laws for the Athenians, and was accounted one
<PB N="112" REF="64">of the &s;even Sages in Greece, is highly commended for his great wi&s;dome in making Laws both by <HI>Ari&s;totle</HI> and <HI>Plato,</HI> who propo&s;eth him and <HI>Lycurgus</HI> the Lacedaemonian Law-giver, as patterns for all &s;uch as &s;hall in&s;titute Common-wealths, and de|vi&s;e Laws for them. <HI>Plato</HI> al&s;o pray&s;eth the Creten&s;ian Laws, and <HI>I&s;ocrates</HI> the Laws of <HI>Lacedaemon. Zaleucus</HI> is upon record too for being a great Law-giver among&s;t the Locrians: and <HI>Charondas</HI> has got him&s;elf a name for the Laws the Thurians had from him; And &s;o has <HI>Zamolxis, Pythagoras</HI> his &s;cholar, for the Laws he gave the <HI>Getae.</HI></P>
<P>And yet of all the&s;e Laws &s;o much extolled and &s;poken of among&s;t the Learned, there is not one extant to this day in any entire body; I &s;ay, in an entire body, becau&s;e of the Attick Law &s;ome fragments may be found, which the indu&s;try of <HI>Peti|tus</HI> has collected out of &s;everal Greek Authours, as <HI>Athenaeus, Plato, Plutarch, Demo&s;thenes,</HI> and others, where they lay di&s;per|&s;ed; which though they may bu&s;ie Criticks and tho&s;e that con|template upon Antiquity, yet are of no u&s;e to govern a State by, nor to decide differences that ari&s;e in common intercour&s;e. As it is no &s;mall wonder then, &s;o does it adde much to the Ho|nour of the Roman Civil Law, that it has not been &s;wept away by that common fate under which the&s;e and all other ancient Laws have peri&s;hed, but is the &s;ole &s;urviving Law at this time. The pre&s;ervation whereof is the more to be admired, if it be con&s;idered, how by the &s;tormes and per&s;ecutions of &s;everal ages, near it has been to be annihilated and quite &s;uppre&s;t, as all other Laws be&s;ides it have been. For as the affairs of State have &s;uc|ceeded, and as the Emperours them&s;elves have been vertuou&s;ly or vitiou&s;ly inclined, &s;o has it fared with this &s;tudy and the pro|fe&s;&s;ours of it, and indeed after the &s;ame manner with all other kind of learning.</P>
<P><HI>Julius Cae&s;ar, Augu&s;tus, Tiberius, Claudius, Vespa&s;ian, Tra|jan, Adrian, Antonius Pius,</HI> and <HI>Marcus Antoninus</HI> the Philo|&s;opher, <HI>Alexander Severus, Con&s;tantine, Theodo&s;ius,</HI> and <HI>Ju|&s;tinian,</HI> that were Emperours vigilant and indu&s;trious for the pro&s;perity and weale of the Empire, and de&s;igned nothing with|in them&s;elves but actions of vertue and honour; &amp; well knowing that their true intere&s;t lay in the maintaining of the Laws and
<PB N="113" REF="64">government, without which all things mu&s;t needs run ha&s;tily in|to di&s;order and confu&s;ion; they had the Lawyers of their times in highe&s;t e&s;teem, preferring them to the publick offices of State, both of honour and ju&s;tice; and admitting them into their &s;ecrete&s;t and mo&s;t important coun&s;els, and &s;eldome was any Law made, to which they were not call'd to give their coun|&s;el and advi&s;e: In&s;omuch as it is written of <HI>Alexander Severus,</HI> one of the before named Emperours, that he never e&s;tabli&s;hed any Law without the pre&s;ence and a&s;&s;i&s;tance of twenty of the mo&s;t renowned Lawyers, and fifty other mo&s;t judicious and acute men.<NOTE N="a" PLACE="marg">Baldwin Pro|legom ju. Civil. For&s;ter bi&s;t. ju. civ. lib. <HI>2.</HI> ca. <HI>77.</HI></NOTE></P>
<P>But there were others that &s;ate in the Empire of a far different nature and di&s;po&s;ition, who di&s;daining that their will, how vi|tious and lewd &s;oever, &s;hould be circum&s;cribed within the bounds of any Law; and e&s;teeming it a di&s;honour, that Law|yers, who were but private men, &s;hould undertake to advi&s;e Prin|ces; or that any thing &s;hould be done in State, but what them|&s;elves ab&s;olutely commanded; &s;ome of them de&s;pi&s;ed the whole Law, and &s;lighted tho&s;e that taught it; others proceeded &s;o far in cruelty, as to bani&s;h &s;ome, and to put other Lawyers to death; for &s;o did <HI>Nero, Commodus, Caracalla, Heliogabalus, Septimius Severus.</HI></P>
<P>But to per&s;ecute and take away their per&s;ons did not &s;atisfie the fury of &s;ome implacable Emperours, &s;ince others did &s;uc|ceed &s;till in their room. Therefore it was thought nece&s;&s;ary by &s;ome, that the Law it &s;elf &s;hould be &s;o di&s;patch'd, as it might be &s;ure it &s;hould never renew or ri&s;e again.<NOTE N="b" PLACE="marg">Annae. Robert. rer. judic. lib. <HI>2.</HI> ca. <HI>1.</HI></NOTE> <HI>Caligula</HI> therefore put on a more hardy but a mo&s;t barbarous re&s;olution, to burn all the books of the Law that were then extant; pretending that equity would run clearer, and ju&s;tice be quicker, where the niceties and perplexities of the Law were gone. <HI>Sed non fuit tam diuturnum ejus imperium, ut efficere potuerit quae medi|tabatur; nec pa&s;&s;us e&s;t Deus rata e&s;&s;e hujus tyranni impia &amp; rei|publicae pernicio&s;a con&s;ilia;</HI> But his reign did not endure &s;o long as to execute what he did intend; neither would God &s;uffer the de&s;ign of this tyrant, that was &s;o dete&s;table in it &s;elf, and &s;o de|&s;tructive to the Common-wealth, to be brought to pa&s;s, &s;ayes <HI>Baldwine</HI> in his <HI>Prolegomena.</HI> Notwith&s;tanding how odious
<PB N="114" REF="65">&s;oever this intendment was, and though it proved ineffectual in <HI>Caligula,</HI> yet did <HI>Licinius</HI> the Emperour attempt to do the ve|ry &s;ame thing; but God would not &s;uffer &s;uch a barbarous act to be done by him neither, &s;ayes the &s;ame <HI>Baldwine.</HI></P>
<P>So that as often as it is call'd to mind, what extremities fell upon the Lawyers in the &s;ufferances of their per&s;ons, and how near the whole body of the Law it &s;elf was to be &s;wallowed up and at once devoured, and that from no forreign-enemy, but from the Roman Emperours them&s;elves, who &s;hould have pro|tected both; it mu&s;t al&s;o be remembred, that tho&s;e Emperours were &s;uch, who&s;e actions are hated and abhorred by all that read them, and them&s;elves &s;tigmatized for cruel and unnatural tyrants, and e&s;teemed rather Mon&s;ters then Men. Let it be con&s;idered al&s;o, that they did it to make way for their unbridled and tyrannical wills, which they thought might be more licen|tious, when there was neither per&s;on nor Law left to awe them. And let it withall be &s;poken to the eternal honour of that Law, that it &s;tood flouri&s;hing notwith&s;tanding, after &s;o many Empe|rours had vainly attempted to throw it down.</P>
<P>But never was it &s;o near to utter extirpation, as when a com|bined &s;trength of barbarous people over-ran the We&s;tern part of the Empire: For we read, that in le&s;s time then the com|pa&s;s of eighty years, <HI>Italy</HI> though anciently the &s;trength and &s;eat of that Empire) was &s;even times brought almo&s;t unto de&s;o|lation by the fire and &s;word of the Barbarians, <HI>viz.</HI> Fir&s;t, by <HI>Alarick</HI> King of the Gothes, who &s;ack'd <HI>Rome, Naples,</HI> and other places. Secondly, By <HI>Attila</HI> King of the <HI>Huns,</HI> who razed <HI>Florence,</HI> wa&s;ted <HI>Lombardy,</HI> and not without much diffi|culty was diverted from the &s;poil of <HI>Rome,</HI> by the interce&s;&s;ion of Pope <HI>Leo.</HI> Thirdly, by <HI>Gen&s;erious</HI> King of the <HI>Vandals,</HI> who al&s;o had the &s;ackage of <HI>Rome</HI> it &s;elf. Fourthly, by <HI>Biorgus</HI> King of the <HI>Alani,</HI> in the time of the Emperour <HI>Majoranus.</HI> Fifthly, by <HI>Odoacer</HI> King of the <HI>Heruli,</HI> who drove <HI>Augustulus</HI> the la&s;t We&s;tern Emperour out of his e&s;tate, and twice in thirteen years laid the Countrey de&s;olate. Sixthly, by <HI>Theodorick</HI> King of the <HI>Gothes,</HI> called in by <HI>Zeno</HI> Emperour of <HI>Con&s;tantinople,</HI> to expel <HI>Odoacer</HI> and the <HI>Heruli.</HI> And &s;eventhly, by <HI>Gundebald</HI> King of the <HI>Burgundians,</HI> who having ran&s;ack'd all <HI>Lombardy,</HI> return|ed
<PB N="115" REF="65">home again, leaving po&s;&s;e&s;&s;ion to the <HI>Gothes.</HI></P>
<P>And when the <HI>Gothes</HI> had reigned in <HI>Italy</HI> under eight of their Kings for the &s;pace of &s;eventy two years, they were at la&s;t &s;ub|dued by <HI>Beli&s;arius</HI> and <HI>Nar&s;es,</HI> and <HI>Italy</HI> united once more to the Empire in the time of <HI>Ju&s;tinian.</HI> But <HI>Nar&s;es</HI> having govern|ed <HI>Italy</HI> about &s;eventeen years, and being after &s;uch good &s;er|vice mo&s;t de&s;pitefully u&s;ed by <HI>Sophia</HI> the wife of the Emperour <HI>Ju&s;tinus,</HI> in revenge opened the pa&s;&s;ages of the Countrey to <HI>Alboinus</HI> King of the <HI>Lombards,</HI> then po&s;&s;e&s;&s;ed of <HI>Pannonia,</HI> who coming into <HI>Italy</HI> with their Wives and Children, po&s;&s;e&s;|&s;ed them&s;elves of all that Countrey which anciently was inha|bited by the <HI>Ci&s;alpine Galls,</HI> calling it by their own names <HI>Lon|gobardia,</HI> now corruptly <HI>Lombardy.</HI> And afterwards in proce&s;s of time they grew &s;o mighty and &s;preading there, that there are reckoned no le&s;s then twenty three Kings of that line &s;ucceeding one another in <HI>Italy,</HI> and their Kingdome endured no le&s;s then 206 years.</P>
<P><HI>Italy</HI> therefore being thus rent from the Roman Empire, and the Imperial &s;eat being quite carried out of the We&s;t, and fixed in the Ea&s;t at <HI>Con&s;tantinople,</HI> the power thereof came to be le&s;s feared, and other of the Roman provinces were likewi&s;e a&s;&s;ault|ed: For <HI>France,</HI> after it had been long harra&s;&s;ed by the incur|&s;ions, fir&s;t of the <HI>Burgundians,</HI> and then of the <HI>Gothes,</HI> was af|terwards invaded and quite po&s;&s;e&s;&s;ed by the <HI>Franks;</HI> who ha|ving long hovered on the banks of the <HI>Rhene,</HI> at la&s;t took ad|vantage of the di&s;tractions of the Empire, and ventured over the River under the conduct of their fir&s;t King <HI>Pharamond,</HI> and quite expelled the Romans, and laid &s;uch a &s;trong foundation of government there, that they have in a con&s;tant and uninter|rupted &s;ucce&s;&s;ion continued there ever &s;ince.</P>
<P><HI>Spain</HI> did not long remain in &s;ubjection to the Romans nei|ther, out of which they were driven by the Gothes al&s;o, who kept the quiet po&s;&s;e&s;&s;ion thereof very near three hundred years, till the Moors and Sarracens di&s;po&s;&s;e&s;&s;ed them; who there reigned full &s;even hundred years.</P>
<P>As for <HI>Germany,</HI> it was never wholly &s;ubdued by the Ro|mans, but what they had gained thereof, the French, <HI>Burgundi|ans, Almans,</HI> and other Dutch Nations took from them: till
<PB N="116" REF="66">in the end the French prevailing over the re&s;t, extended their Empire over all the modern <HI>Germany;</HI> chiefly performed by the valour of <HI>Charles</HI> the Great, King of <HI>France,</HI> created Em|perour of the We&s;t by the people of <HI>Rome,</HI> and Crowned with the Imperial Crown by Pope <HI>Leo</HI> the fourth, with whom and his &s;ucce&s;&s;ours it remained above an hundred years; till at la&s;t by alienating whole countreys from it (&s;ome titulary acknow|ledgment onely excepted) and by di&s;membring it into many Principalities and inferiour States, and tho&s;e made ab&s;olute and independent, that great Empire came to be nothing in effect, but <HI>magni nominis umbra,</HI> the &s;hadow of a mighty body, a meer empty Title; having no re&s;emblance of the Roman Em|pire, from the which in the per&s;on of <HI>Charles</HI> the Great it was quite divided.</P>
<P><HI>England</HI> al&s;o, that was made a perfect member of the Roman Empire, being invaded by the <HI>Scots</HI> and <HI>Picts,</HI> and the Romans being enforced to recall their Legions they had here, for the defence of <HI>Italy</HI> it &s;elf, then wa&s;ted and de&s;troyed by the Barbarous Nations, was relinqui&s;hed and given up, as a province that was to be held by the Romans no longer; <HI>Hono|rius</HI> being at that time the Roman Emperour, and <HI>Victorinus</HI> the la&s;t governour for the Empire in the I&s;le of <HI>Britain;</HI> the Romans having been in it full five hundred years, and their Laws al&s;o.</P>
<P>Thus the Roman Empire being rent in &s;under, it is ea&s;ie to imagine, that the Roman Laws which con&s;tantly attended the Romans whereever they went, were al&s;o di&s;&s;ipated in the &s;ame tempe&s;t; Laws and Government being like <HI>Hippocrates</HI> twins, they laugh and cry, live and die together: For Conque|rours never think their Conque&s;ts perfect, till they have over|thrown the ancient Government, Laws, and Cu&s;tomes, and have put all into a new mould after their own way. Neither is a people throughly brought under &s;ubjection to their new ma|&s;ters, till they have utterly renounced all that was pre&s;cri|bed them by their former Rulers: Nor is the danger of their revolting quite over, till they have quite forgotten their fir&s;t condition, and till a total change is made of Laws, Cu&s;tomes, Habit, and Language. And who knows
<PB N="117" REF="66">not, that it is in the power of the Sword, being well for|tified, to impo&s;e what Laws and Rules it &s;elf will upon a people, who after a tedious and a de&s;tructive war will rather embrace an ill conditioned peace, then run the ha|zard of a new war, where they are &s;ure to be &s;wallowed up in &s;poil and rapine?</P>
<P>In this declining therefore of the Roman Empire, many Provinces thereof being po&s;&s;e&s;&s;ed by &s;everal invaders, it is cer|tain that the conquering people gave their own Laws to the conquered, but ruled mo&s;t<NOTE N="a" PLACE="marg">Iuxta illud Silii; Vis coli|tur, juri&s;que lo|cum &s;ibi vendi|cat. en&s;is.</NOTE> by power and arbitrary will. <HI>In iis &s;eculis,</HI> &s;ayes Dr <HI>Duck,</HI><NOTE N="b" PLACE="marg">Lib. <HI>1.</HI> de Au|thor. ju. civ. ca. <HI>7.</HI></NOTE> &s;peaking of the declen&s;ion of the Roman greatne&s;s, <HI>non erat aliud parendi dominandive jus qu&agrave;m armorum potentia, cra&s;&s;a literarum omnium ignorantia, leges omnes barbaricae, Gothicae, Francicae, Lombardicaeve, &s;epultis jam legibus Romanis, rerum omnium morumque confu&s;io:</HI> In tho&s;e times there was no other rule, but what the &s;word did give, a gro&s;s 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 confu&s;ion of civility, and all things what&s;oever. <HI>Ludovicus Vives</HI><NOTE N="c" PLACE="marg">Lib. <HI>1.</HI> de cau&s;. corrupt. Art.</NOTE> mentioning the utter downfall that was of all learning at that time, tells us al&s;o the politick rea&s;on that animated that &s;avage people to deal &s;o tragically with it: <HI>Irri&s;ae &s;unt ab eis linguae ac &s;tudia omnia,</HI> &s;aith he; <HI>Nec &s;ol&ugrave;m eis detractum e&s;t pretium, &s;ed contu|melia addita; &s;eu qu&ograve;d nollent quenque in victis plus &s;ape|re qu&agrave;m victorem, &amp; ut qui&s;que e&s;&s;et docti&s;&s;imus, ita cra&s;|&s;is illis hominibus inprimis erat &s;u&s;pectus, tanquam vafer &amp; ad fraudes ac dolos maxim&egrave; appo&s;itus; &s;en qu&ograve;d emolliri per haec veram virtutem opinarentur, ac minus bello idoneos red|di, cui omnia illi tum tribuebant, laudem, gloriam, decus; ex bello uno verum germanumque, etiam &s;empiternum oriri rati:</HI> They laugh'd at the variety of tongues, and at all li|terature; Neither did they onely di&s;te&s;teem them, but they ca&s;t reproches upon them al&s;o; either becau&s;e they were not willing, that any that they had now brought under &s;ubjection &s;hould be wi&s;er then them&s;elves, who being blocki&s;h, did ca&s;t a jea|lous eye upon tho&s;e that were mo&s;t knowing men as they that
<PB N="118" REF="67">were &s;ubtil, and fitted for all politick and wily practi&s;es: or becau&s;e they had a conceit, that learning did too much &s;often and enervate valour, and render men unfit for war, in the which they thought all prai&s;e, glory, and renown did lie; and that no where true and immortal honour was to be won, but in war onely.</P>
<P>Which torrent of ruine then happening, was the more unfor|tunate and fatal, in regard through <HI>Italy</HI> and the <HI>Europaean</HI> Na|tions being thus infe&s;ted, that which is the Roman Civil Law now, and was collected and put together by <HI>Ju&s;tinian</HI> him&s;elf, and doth bear his name (though &s;elected out of a great confu|&s;ed ma&s;s, con&s;i&s;ting of near two thou&s;and Volumes, that had been 1400 years a laying together by &s;everal Lawyers) could not have any place then in <HI>Italy,</HI> nor could ever get entrance into tho&s;e parts for 500 years together after the death of <HI>Ju&s;ti|nian:</HI> Becau&s;e this body of the Law that is now extant, was compiled and put together at <HI>Con&s;tantinople,</HI> after the Roman Emperours had removed them&s;elves thither, and kept out of <HI>Italy</HI> and the We&s;tern part of the Empire for all that time that tho&s;e Barbarians were po&s;&s;e&s;&s;ed of the &s;ame.</P>
<P>Howbeit it is no le&s;s certain, that the ancient Civil Law that was in being long before <HI>Ju&s;tinians</HI> time, and that very frame and model thereof which was drawn together and rai&s;ed out of tho&s;e ancient foundations by <HI>Ju&s;tinian</HI> him&s;elf, was the &s;ove|reign and ruling Law at <HI>Con&s;tantinople</HI> and all over the Ea&s;t, where the Roman Empire then was, and was tran&s;lated into the Greek tongue for the u&s;e of the people, and there continued flouri&s;hing at that time when the We&s;t 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 &s;word; and that it did not &s;uffer alone, but all civility and lear|ning was bani&s;h'd with it too: and that it was never &s;o extirpa|ted from off the earth, but it had a being and continuance &s;ome|where.</P>
<P>And yet there was a part of <HI>Italie</HI> al&s;o, namely the Exar|chate of <HI>Ravenna,</HI> con&s;i&s;ting of ten Cities with the territories belonging to them, which the barbarous people could not &s;ub|due, nor make them change their governours, government, or
<PB N="119" REF="67">Lawes; who being &s;till ruled by the Viceroys and Lieutenants of the <HI>Con&s;tantinopolitan Emperours,</HI> were totally governed by the Roman Lawes al&s;o as they were before. And after the col|lection of Lawes made by <HI>Iu&s;tinian</HI> was perfected and publi&s;h|ed, and was now to be the onely Law for the whole Empire, it was &s;ent to and embraced by the Exarchate of <HI>Ravenna,</HI> and there practi&s;ed, though no where el&s;e throughout <HI>Italie</HI> for 500 yeares together.</P>
<P>Notwith&s;tanding, it cannot be truly affirmed neither, that even tho&s;e parts of <HI>Italie</HI> which the Romans had quite lo&s;t, and were made &s;ubject to this barbarous people, were totally guided by another Law, and had none of the Roman Law to guide them.</P>
<P>For, although the <HI>Gothes</HI> ruled much by Lawes of their own pre&s;cribing, yet <HI>Ca&s;&s;iodore</HI> writes, that in the time of <HI>Theodo|rick,</HI> and &s;ome of his &s;ucce&s;&s;ours, the Roman Law that had been in u&s;e there before, was al&s;o u&s;ed &s;till, though but in a way of Sub&s;erviency to their own.</P>
<P>And <HI>Ataulphus</HI> fully purpo&s;ing <HI>Romana omnia adeo in Gothi|cum nomen more&s;que mutare, ut Romanum plan&egrave; obliteraretur,</HI> &s;o to change all that was Roman into the way and fa&s;hion of the <HI>Gothick</HI> Nation, that nothing that was Roman &s;hould remain any longer; Mr. <HI>Selden</HI> out of <HI>Oro&s;ius</HI><NOTE N="d" PLACE="marg">Lib. <HI>7.</HI> ca. <HI>43.</HI></NOTE> &s;ayes, upon better con|&s;ideration had, he changed his re&s;olution quite, and did by all meanes &s;trive, <HI>ut Romanae restitutionis autor haberetur, po&s;tquam e&s;&s;e non poterat immutator,</HI> to be the chiefe &s;etter up of the Ro|man policie, which he &s;aw he &s;hould not be able to throw down.</P>
<P>For the time therefore that the <HI>Gothes</HI> and <HI>Lombards</HI> were po&s;&s;e&s;&s;ed of <HI>Italie,</HI> the Code of <HI>Theodo&s;ius,</HI> and &s;ome things taken out of the <HI>Gregorian</HI> and <HI>Hermogenian</HI> Codes, and <HI>Gajus</HI> his In&s;titutions, <HI>Vlpians fragments,</HI> and the Notes and &s;enten|ces of <HI>Paulus,</HI> all parts of the Civill Law, and antienter then that body of Lawes whereof <HI>Ju&s;tinian</HI> was the compiler, were taken in and admitted into u&s;e together with their own Laws. Tho&s;e Provinces of <HI>France</HI> that are neare&s;t unto <HI>Italy,</HI> when the Gothes came to invade them, were al&s;o permitted to enjoy the Roman Laws upon the &s;ame termes; and e&s;pecially when
<PB N="120" REF="68"><HI>Honorius</HI> and <HI>Arcadius</HI> &s;urrendred <HI>Aquitaine,</HI> one of the con|ditions was, <HI>ut lex te&s;tamentorum iis &s;alva e&s;&s;et,</HI> that their Laws for ordaining or expounding their la&s;t wills &s;hould not be in|fringed.</P>
<P>And <HI>Alarick</HI> the &s;econd, one of the Gothi&s;h Kings, was &s;o affected towards the Roman Laws, that in the year 506, he employed his own Chancellour <HI>Anianus</HI> to make a Collection out of the &s;everal parts of the Roman Laws, whereof the Theo|do&s;ian Code was the chief, and to write Notes and Expo&s;itions upon it; which after he had done, it was publi&s;hed and &s;et forth to be ob&s;erved as Law in <HI>France.</HI> And Mr <HI>Selden</HI> wri|teth,<NOTE N="e" PLACE="marg">Di&s;&s;ert. ad Flet. ca. <HI>5.</HI> parag. <HI>4.</HI></NOTE> that the &s;ame King did the like in <HI>Spain</HI> too as well as in <HI>France.</HI></P>
<P>So that albeit ruine, deva&s;tation, and violence had buried all that was Roman be&s;ides; and for the better and more &s;ure kee|ping of what was gotten, clean another government and ano|ther Law was al&s;o &s;etled; yet the Roman Law, either out of nece&s;&s;ity, becau&s;e they &s;aw the hearts of that people &s;o &s;et upon that Law, that they would never have remained quiet or peace|able without it, or out of &s;ome good e&s;teeme that &s;uch a wilde and barbarous people bore to it them&s;elves, finding it to be &s;o wi&s;e, &s;olid, and rational, was &s;till retained in &s;ome u&s;e in <HI>Italy, France, Spain,</HI> and in <HI>Germany</HI> too, as the &s;ame Mr <HI>Selden</HI> af|firmeth, amid&s;t its very enemies; though much dimini&s;hed, corrected, and controuled by their own &s;upereminent and over|ruling Law. So good a piece of policy, and &s;uch a &s;pecial mark of wi&s;dome was it then accounted, to have two Laws in the &s;ame Territory; the one of the Romans for private matters between man and man, for which it was &s;o &s;ufficient, full, and equal; the other of their own, to direct and &s;teer the pub|lick upon all accidents, which they meant &s;hould &s;uperintend and reign in chief over and above the other.</P>
<P>But further, not onely the u&s;e, practi&s;e, and ob&s;ervation of the Roman Law has been in danger to be quite lo&s;t and wholly &s;et a&s;ide, but the very books and writings of the Law have run very hard fates al&s;o; <HI>ut mirum &s;it vel has quale&s;cun|que juris Romani reliquias &s;upere&s;&s;e,</HI> &s;ayes <HI>Baldwine</HI> in his <HI>Pro|legomena;</HI> that it may be admired we have &s;uch parcels there|of
<PB N="121" REF="68">extant at this day. It was a mo&s;t unhappy fate, and very worthily lamented by all learned men, that after <HI>Ju&s;tinians</HI> compo&s;ition of the Law was perfected and &s;et forth, with a com|mand, that that onely &s;hould be the Law of the Empire, <HI>omni|bu&s;que antiquioribus quie&s;eentibus, nemoque audeat vel compa|rare eas prioribus,</HI> as <HI>Ju&s;tinians</HI> own words are;<NOTE N="f" PLACE="marg">L. <HI>2.</HI> God. De Veter. jur. cuu|clcand.</NOTE> all the old Laws being quite put to &s;ilence, nor that any &s;hould dare to make compari&s;ons between them; the very Law-books them|&s;elves being 2000 Volumes, as we &s;aid before (whereof <HI>Ju&s;tini|ans</HI> new work was but a choice Collection, rai&s;ed out of a con|fu&s;ed and an indige&s;ted heap, and thence put into order) did thereby lie neglected &s;o long, that in proce&s;s of time, they pe|ri&s;hed quite, and were never &s;een more.</P>
<P>Que&s;tionle&s;s had they been pre&s;erved, and tran&s;mitted unto po&s;terity 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 under&s;tood, when we might have gone to the Original from whence it came; and the contradictions now contended about &s;o much, would have been ea&s;ily reconciled.</P>
<P>The &s;en&s;e of this lo&s;s did ca&s;t <HI>Sabinus Floridus,</HI> who charges it upon <HI>Ju&s;tinian,</HI> into &s;uch an exta&s;ie of indignation, that he &s;ayes, <HI>Ju&s;tinian</HI> died mad with the con&s;ciou&s;ne&s;s and horrour of &s;uppre&s;&s;ing the&s;e books, and judges him not worthy ever to have been born. But <HI>Franci&s;cus Philelphus</HI> goes a &s;train higher, plainly imprecating in this manner:
<Q><L>O ntiuam &s;uperi, &s;i quid mortalibus u&s;quam</L>
<L>Ju&s;titiae reliquum, te, Ju&s;tiniane, &s;ub imis</L>
<L>Manibus ardenti plectant Phlegetonte jacentem;</L>
<L>Po&s;t qu&agrave;m tanta Italis millena volumina legum</L>
<L>Principe te clades, te principe pe&s;tis ademit.</L></Q> Now though I fee not any ground to ju&s;tifie &s;o much bitterne&s;s, nor indeed de&s;ervedly to make that renowned Emperour au|thour of &s;uch a crime, being e&s;pecially thought by the mo&s;t not guilty; yet &s;ince tho&s;e books of Law that are left us, which are but an extract from the other, are of &s;uch high price and value,
<PB N="122" REF="69">&s;urely when the other peri&s;hed, there was lo&s;t a very great trea|&s;ure.</P>
<P>Again, as there were three Cities famous above all others, for the nouri&s;hing and maintaining of the &s;tudy and learning of the Civil Law, to wit, <HI>Rome, Berytus,</HI> and <HI>Con&s;tantinople;</HI> In which three Cities onely by an expre&s;s con&s;titution of <HI>Ju&s;tinian,</HI><NOTE N="g" PLACE="marg">Dige&s;t. Pro|aem. parag. <HI>7.</HI></NOTE> it was to be read and taught to others, and no where el&s;e throughout the Roman Empire; &s;o it was not po&s;&s;ible but the books and writings thereof mu&s;t be lo&s;t and de&s;troyed, as indeed they were, in the direful events of tho&s;e Cities: For <HI>Rome</HI> was often &s;poiled, &s;ack'd, and laid wa&s;te, by rude and &s;avage peo|ple, who would not &s;pare books or learning, that they knew would dete&s;t, condemn, and cen&s;ure them, and their barbarous actions. <HI>Berytus</HI> was &s;o utterly &s;wallowed up in an Earthquake, that nothing of the whole City was left above ground. <HI>Con|&s;tantinople</HI> in <HI>Zeno</HI> the Emperours time, in the year 478 was al|mo&s;t wholly de&s;troyed by fire; in which peri&s;hed, among&s;t o|things, an hundred and twenty thou&s;and books; and is &s;ince fallen into the power and hands of the Turks, profe&s;&s;ed enemies to civility and learning, the &s;ame being taken by <HI>Mahomet</HI> the Great, in the time of <HI>Con&s;tantine Palaeogolus</HI> the la&s;t of the Graecian Emperours, in the year 1452.</P>
<P>Thus has it fared with the very books and writings of the Civil Law; but &s;uch has been the providence of the Almighty in pre|&s;erving this nece&s;&s;ary piece of learning, that neither any nor all of the&s;e di&s;a&s;ters have been powerful enough to extingui&s;h it. For although it &s;eemed &s;ometimes to be buried, and no where vi&s;ible, yet at la&s;t by one means or other it was re&s;tored and brought to light.</P>
<P>But to none more is the honour of this re&s;titution given, then to the Emperour <HI>Lotharius</HI> the &s;econd, who undertaking a war again&s;t <HI>Roger</HI> King of <HI>Sicily</HI> and <HI>Naples,</HI> after he had taken by &s;torm the City of <HI>Amalphis</HI> in <HI>Apulia,</HI> he there found the chiefe&s;t and mo&s;t authentick part of the Civil Law, the Dige&s;ts; which was from thence conveyed to <HI>Pi&s;a,</HI> and afterwards to <HI>Florence,</HI> where they have been kept with the greate&s;t care, and had in much veneration and e&s;teem;<NOTE N="h" PLACE="marg">Mr <HI>Selden</HI> &s;ayes it is there kept in the Dukes Palace, and is never brought forth but with Torch-light and other re|verence. Notes upon <HI>Forte&s;cue</HI> ad cap. 17. in tin.</NOTE> and this was in or about the year, 1137. The other parts of <HI>Justinians,</HI> frame and Collecti|on
<PB N="123" REF="69">were found at <HI>Ravenna</HI> about the &s;ame time.</P>
<P>The&s;e books were no &s;ooner pull'd as it were out of the du&s;t, but by the &s;ame Emperours command, they were every where divulged, taught in Schools and Univer&s;ities up and down the Empire, the barbarous Laws as it were &s;ilenced, and the&s;e in practi&s;e made the rule for all Tribunals.</P>
<P>And indeed the fame and reputation of them &s;o &s;pread, all kind of learning reviving with it at the &s;ame time, that in a little &s;pace of time it got footing al&s;o with the other &s;ciences in <HI>France, Spain,</HI> and <HI>Italy,</HI> and in all the We&s;tern part of <HI>Europe,</HI> where it has been in greate&s;t u&s;e and highe&s;t account, as well in &s;tudies as in Judicatories, ever &s;ince to this very age of ours. Nay, the Civil Law after it was once re&s;tored and taken notice of, having long lain hid and concealed, drew the hearts and &s;tudies of men after it in &s;uch wonderful manner, and grew to that mighty eminence and power, that the mo&s;t were intent up|on the &s;tudy of it, and but few in compari&s;on lookt after any other learning.</P>
<P><HI>Giraldus</HI> of <HI>Oxford</HI> charges it as a fault upon the &s;tudents of his time, and tells that one <HI>Martin</HI> a Clergy-man, did &s;harply reprove the Univer&s;ity of <HI>Oxford</HI> at a publick congregation, for devoting them&s;elves wholly to that &s;tudy, neglecting all other learning; &s;aying, <HI>qu&ograve;d leges Imperiales reliqua &s;cientias omnes &s;uffecaverant,</HI> the Imperiall Laws had &s;wallowed up all the other Sciences.</P>
<P>Al&s;o <HI>Daniel Morlaes</HI> in the &s;ame Century, being in <HI>Henry</HI> the &s;econds time, writes, that the Law was &s;o much &s;tudied in <HI>Oxford, qu&ograve;d pro Titio &amp; Seio Ari&s;toteles &amp; Plato penitus obli|vioni traderentur;</HI> that <HI>Titius</HI> and <HI>Seius</HI> were minded altogether, and <HI>Aristotle</HI> and <HI>Plato</HI> were quite forgotten. And <HI>Roger Ba|con,</HI> that had made him&s;elf eminent in all the &s;ciences, did up|braid the Bi&s;hops of the &s;ame age, for minding Divinity &s;o lit|tle; adding, <HI>qu&ograve;d cavillationes juris defaedarent Philophiam,</HI> the &s;ophi&s;try of the Law would corrupt the true Philo&s;ophy.</P>
<P><HI>Stephen Langton</HI> Arch-Bi&s;hop of <HI>Canterbury</HI> took up the &s;ame complaint in <HI>Henry</HI> the thirds time, again&s;t the Monks of his time, <HI>qui relicto agro veri Booz, nempe &s;acra Scriptura, ad alium agrum, id e&s;t, &s;cientiam &s;ecularem, pro cupiditate terrena tran&s;i|rent;</HI>
<PB N="124" REF="70">who through greedine&s;s of filthy lucre, which was then to be gotten chiefe&s;t from the Law, did for&s;ake the knowledge of the Scriptures, and hunt after &s;ecular know|ledge.</P>
<P>The like lamentation was made by <HI>Robert Holcot</HI> of the order of the <HI>Praedicants</HI> in <HI>Northampton</HI>-&s;hire, in <HI>Edward</HI> the thirds time; <HI>leges &amp; canones,</HI> &s;aith he, <HI>i&s;tis temporibus innumerabili|ter &s;unt foecundae; concipiunt divitias &amp; pariunt dignitates; ad illas confluunt qua&s;i tota multitudo &s;cholarum his diebus:</HI> The Laws and Canons are immea&s;urably profitable in the&s;e times; riches and honours &s;pring from thence; almo&s;t the whole num|ber of Scholars re&s;ort thither; for indeed the greate&s;t profe&s;|&s;ours in Theologie, that were, did &s;o little content them&s;elves with that one way of advancement, that they did frequently a&s;|&s;ume degrees in Law, to fit and qualifie them for other prefer|ments al&s;o.</P>
<P>But &s;ure it is, the&s;e complaints and objurgations of private men could &s;o little keep this luxuriant growth of the Law from &s;preading, that the very Edicts and Decrees of Princes could not bring it down.</P>
<P><HI>Matthew Paris</HI> in his Hi&s;tory upon the year 1254, and in the Additions, <HI>pag.</HI> 883. <HI>Edit. Novi&s;&s;.</HI> makes mention of a con|&s;titution made and publi&s;hed by Pope <HI>Innocent</HI> the fourth, by which it was ordained, that no profe&s;&s;our of the Laws &s;hould be promoted to any Eccle&s;ia&s;tical dignity in <HI>France, England, Scotland, Spain,</HI> and <HI>Hungarie;</HI> and that from thenceforward the Imperial Laws &s;hould not be read in tho&s;e dominions, if the Kings and Princes &s;o thought fit. Pope <HI>Honorius</HI> the third for|bad the reading or teaching of the Civil Law in <HI>Paris,</HI> in the year 1220.<NOTE N="i" PLACE="marg">Ca &s;uper spe|cuta. ext. de pri|vileg.</NOTE></P>
<P>Tho&s;e Popes thought that the re&s;traint of the Imperial Law, would be a ready means to bring into reque&s;t the Canon Law, which was as it were but new &s;et up. Upon de&s;ign therefore to bring into credit their own Eccle&s;ia&s;tical Law, rather then out of any di&s;like of the Civil, were tho&s;e prohibitorie Decrees made; however they very much failed of that effect that was intend|ed them: for we may have ob&s;erved to this very time, that all
<PB N="125" REF="70">tho&s;e Chri&s;tian States that do acknowledge the Popes autho|rity and power, have &s;o equally divided their re&s;pect between both tho&s;e Laws, that they have appointed to each their proper function; de&s;igning the one to be &s;erviceable to Civil matters, the other to Eccle&s;ia&s;tical; and &s;o by &s;uch moderation have done very equal right to both. At the &s;ame time that the Civil Law was publickly read at <HI>Bononia</HI> by the means of <HI>Lotharius</HI> the &s;econd, it was brought into <HI>England</HI> by <HI>Theobald</HI> the Arch-Bi&s;hop of <HI>Canterbury,</HI> and being publickly read in <HI>Oxford</HI> by <HI>Vacarius,</HI> it grew &s;o general a &s;tudy, and other learning was &s;o much neglected upon it, that King <HI>Stephen</HI> incen&s;ed thereat, &s;ent forth a peremptory command, that it &s;hould be read in <HI>England</HI> no more, that <HI>Vacarius</HI> &s;hould forbear to teach it any further, nor that it &s;hould be lawful for any to keep any books of the Roman Laws by them: <HI>Sed par&ugrave;m va|luit Stephani prohibitio; nam e&ograve; magis invaluit virtus legis, Deo favente, qu&ograve; cam amplius nitebatur impietas &s;ubvertere,</HI> &s;ayes Mr <HI>Selden;</HI><NOTE N="k" PLACE="marg">Di&s;&s;ertat. ad Flet. cap. <HI>7.</HI> pa|rag. <HI>6.</HI></NOTE> But King <HI>Stephens</HI> prohibition did prevaile but little; for the power of the Law, God pro&s;pering the &s;ame, waxed the more vigorous, when malice did mo&s;t &s;trive to de&s;troy it.</P>
<P><HI>Charles</HI> the ninth, and <HI>Henry</HI> the third of <HI>France,</HI> did al|&s;o by &s;ending forth their Edicts forbid the Civil Law to be taught in <HI>Paris,</HI> or that any Degrees &s;hould be taken in that faculty. <HI>Philip</HI> the fair, and the Parliament of <HI>Paris</HI> anciently, did &s;traitly charge, that no man &s;hould dare in any pleading to urge or cite the Roman Law again&s;t a &s;pe|cial Law of the Nation. In <HI>Spaine</HI> it has been made no le&s;s then a capital crime, to offer or alledge the Roman Law, as compul&s;ive or binding.</P>
<P>And &s;urely it is a high indignity to any Prince, to have any &s;orreigne Law &s;et up again&s;t, and to beat down his own. And therefore in the erection of Univer&s;ities in <HI>France,</HI> the Kings have alwayes declared, that their purpo&s;e was to have the Civil and Canon Laws in them publickly profe&s;&s;ed and taught, to make u&s;e thereof at their di&s;cretion, but not that the &s;ubjects &s;hould be any way bound thereunto, le&s;t they
<PB N="126" REF="71">&s;hould &s;eem to derogate from the Laws of their own countrey, by advancing the Laws of &s;trangers.<NOTE N="l" PLACE="marg">Bodin. de rep. lib. <HI>1.</HI> ca. <HI>8.</HI></NOTE></P>
<P>The&s;e and &s;uch like edicts &amp; declarations of Princes, have been alwayes of full force and power, as mo&s;t ju&s;tly they ought to be, to limit the va&s;t and univer&s;al power of the Civil Law, and to keep it from getting above and prevailing over the Laws and Cu&s;tomes of their own Territories; for that were no le&s;s then to wor&s;hip two Suns in one and the &s;ame firmament, and to call in the Roman Sovereignty, which was long ago ca&s;t off. But that the Civil Law &s;hould not be &s;tudied, publickly taught, no degrees taken in it, nor cited in their Judicatories in a mini|&s;terial and &s;ubordinate way to their own municipal Laws and Cu&s;tomes, or that it &s;hould not be admitted to teach us true equity and &s;ound rea&s;on, their re&s;training Edicts never have &s;o far prevailed &s;o totally to &s;uppre&s;s it, from the time of <HI>Lothari|us</HI> the &s;econd, the fir&s;t re&s;torer and ree&s;tabli&s;her of it, to this pre&s;ent, which is now full 500 years. <HI>Plurim&ugrave;m di&s;tat lex &agrave; jure,</HI> &s;ayes the &s;ame Bodine; <HI>Jus enim &s;ine ju&s;&s;u ad id quod aequum bonumque est; lex autem a<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> imperantis maje&s;tatem perti|net:</HI> There is much difference betwixt Right and Law; for Right without any command in&s;inuating it &s;elf into the &s;oul of a ju&s;t man, recommendeth to that which is good and equal; but Law importeth a command of &s;ome Sovereigne, which may force and hurry the will to &s;uch an action, which in equity or right rea&s;on may not be good or laudable. As a Law to bind by its own proper power and vertue, or by any authority of tho&s;e that made it, the Imperial Law is not admitted in any Na|tion. Yet no Chri&s;tian Nation with all the expre&s;s decrees that that they have at any time made again&s;t it, has been able to ex|clude it, as it containes <HI>veram naturalem rationem, optimum inter omnes leges humanas exemplum, aequitatis normam, autho|ritatem prudentum, veram ju&s;titiae rationem, artem &amp; &s;cienti|am juris, &amp; ut bonos mores complectitur;</HI> they all admit it, as it does propound and hold forth true natural rea&s;on, and as it is the mo&s;t imitable pattern among&s;t all the Laws of men, the rule of equity, the voice of Sage men, the true method of ju&s;tice, the art and knowledg of doing right, and as it comprehends in|&s;tructions for a moral life: For thus to &s;hut the door again&s;t it,
<PB N="127" REF="71">were to renounce rea&s;on, equity, ju&s;tice; and to defie all moral goodne&s;s.</P>
<P>Thus much may very well &s;uffice to &s;hew how the Roman Civil Law has had the &s;ingular honour and prerogative which no other Law has had, to be re&s;cued from that univer&s;al deluge of abolition, which hath &s;wept away all other ancient Laws be|&s;ides it; and not onely to out-live <HI>Rome</HI> it &s;elf, but to out-&s;tand many dangerous a&s;&s;aults and ca&s;ualties, and divers &s;harpe penal Edicts that have been made again&s;t it, and to continue to this very time a large and accompli&s;hed body. This &s;urely next to the providence of God who hath &s;o di&s;po&s;ed it, mu&s;t needs be a&s;cribed, and the cau&s;e mu&s;t needs be conceived to be, &s;ome e&s;pecial excellency and rare wi&s;dome that is in the Law it &s;elfe; For el&s;e why has not other Laws continued as long, as that has done?</P>
</DIV2>
<DIV2 N="4" TYPE="chapter">
<PB N="128" REF="72">
<HEAD>CHAP. IV.</HEAD>
<ARGUMENT>
<P>That Forreigne Nations in doing of Right between Man and Man, do mainly practi&s;e and make u&s;e of the Rules and dictates of the Civil Law.</P>
</ARGUMENT>
<P>THat the Roman Civil Law, framed &s;o many hundred years ago, and devi&s;ed for the u&s;e of one Nation onely, is &s;till extant and in being at this day, the &s;tate it &s;elf being quite extinct; po&s;&s;ibly it may not &s;eem commendation and prai&s;e &s;uf|ficient, except the u&s;e, practi&s;e, and ob&s;ervation of it up and down divers great Nations of the World be al&s;o &s;hewed. The next thing therefore that we have to &s;ay in further prai&s;e there|of is, that the greate&s;t and be&s;t ordered Nations, though they manage their publick occa&s;ions 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 pre&s;ent exigencies onely; yet in the di&s;pen&s;ation of private ju&s;tice, and in pacify|ing the debates and differences that do ari&s;e between their &s;ubjects, where meer right and equity onely is con&s;iderable, they u&s;e and practi&s;e the rules and principles of the Civil Law chiefly.</P>
<P>Peculiar Statutes, Ordinances, Cu&s;tomes, 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 con|&s;titutions what&s;oever, though in rea&s;on and convenience they may &s;eem much better. Yet humane occurences are &s;o many in number, and in circum&s;tances &s;o greatly differing one from the other, that no Nation is perfectly &s;upplied with Laws of their own to an&s;wer them, but that there is &s;till need of &s;ome &s;ub&s;idiary Law, more univer&s;al and comprehen&s;ive then its own.</P>
<P>And from this ground is it, that mo&s;t States have entertained the Imperial Law, to &s;upply and a&s;&s;i&s;t where their own is defe|ctive;
<PB N="129" REF="72">making their &s;tudy and &s;cience of Law to con&s;i&s;t in that, but the u&s;e and exerci&s;e thereof to be re&s;trained and bounded by their own proper Laws, which every Nation requires to have fir&s;t known, and chiefly to be ob&s;erved. Wherefore if you tra|vel into their States, and &s;hall a&s;cend 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; &amp; the proceedings in cau&s;es there, to be mo&s;t after the form and manner of the Civil Law. And when any ca&s;e comes to be re|&s;olved by final &s;entence, if there be any proper or peculiar Law of their own Countrey to determine it, judgment pa&s;&s;es, as that &s;pecial Law directeth; but if that be wanting, as commonly it is, pre&s;ently recour&s;e is had to the Civil Law, and by that is it both pleaded and judged.</P>
<P>Which becau&s;e it &s;hews the tran&s;cendent excellency of this Law, being incident to no other Law be&s;ides, and being not throughly enquired into, may &s;eem incredible to many men, it is therefore a point worthy of a &s;trict examination, and fit to be fully cleared and perfectly under&s;tood.</P>
<P>For peradventure it may not pa&s;s without a wonder, that a Prince or Common-wealth &s;hould not be able to manage their rule and government by Laws of their own devi&s;ing; or that any differences &s;hould ari&s;e among&s;t their people, which they knew not how to decide of them&s;elves, but mu&s;t con&s;ult with the oracles of other Nations.</P>
<P>It eclip&s;es, &s;ome may think, the Maje&s;ty of a State, to have rules pre&s;crib'd to it by others. And &s;ince the time that a divi|vi&s;ion of Kingdomes was fir&s;t made, and each had their bounds &s;et them, no Potentate, no not the Emperour him&s;elf has pre|tended to a power to give Law to any, but to &s;uch as have been his &s;ubjects by birth, habitation, or conque&s;t. Neither can Lawes be made to regulate the whole World, or to bind all people, &s;ayes <HI>Suarez.</HI><NOTE N="m" PLACE="marg">Lib. <HI>3.</HI> de le|gib. ca. <HI>4.</HI> nu. <HI>7.</HI> &amp; ea <HI>7.</HI> nu. <HI>9.</HI></NOTE> Be&s;ides, <HI>quae leges Romanis congrue|bant, non omnibus jam congruunt: mutata e&s;t ratio vivendi, &s;tatus rerum mutatus,</HI> &s;ayes <HI>Ludovicus Vives;</HI><NOTE N="n" PLACE="marg">De cau&s;. cor|rupt. art. lib. <HI>7.</HI></NOTE> The Laws that were proper for the Romans, &s;uit not &s;o well with others; the manner of living is not now as it then was, the &s;tate of affairs is clean changed, climates differ, and the tempers of people differ
<PB N="130" REF="73">too; new and &s;trange accidents do frequently ari&s;e, which will require new con&s;titutions to &s;ettle them; the form of governing is divers in &s;everal times &amp; places, the Laws therfore cannot po&s;|&s;ibly be the &s;ame; Monarchical Laws are of no u&s;e to a Popular government; and Popular Laws do not fit a Monarchical State: Severe edicts will not &s;uit with a milde and gentle people; and contrariwi&s;e, barbarous or untractable natures mu&s;t not be dealt withall by gentlene&s;s or clemency. It may therefore be que&s;ti|oned, how the Civil Law that was made &s;o many hundred years ago, and for one &s;ingle Nation, can be accomodated to other Nations, coming in &s;o long a tract of time after them, and dif|fering from them in habit, language, &s;ituation, manners, and form of govermnent.</P>
<P>Be&s;ides, to hear of the general u&s;e of the Civil Law in forreign parts, is &s;o odious and offen&s;ive a thing to &s;ome humorous Anti|civilians, that although they be &s;o learned, that they mu&s;t needs know it to be true, and having travailed abroad mu&s;t needs have &s;een it; yet to take away all belief thereof from the peo|ple of this Nation, le&s;t they &s;hould look too favourably upon it, they do too frequently &s;ugge&s;t in their writings, That in <HI>France</HI> it has been forbidden under a penalty to read the Civil Law to any publick audience, and tho&s;e that &s;hould hear the &s;ame read, were al&s;o to undergo the &s;ame puni&s;hment; And that in <HI>Spain</HI> to cite the authority of the Civil Law in Court, has been made an offence no le&s;s then capital. But they do not add withall (which they know they may as truly) that the&s;e &s;harp edicts la&s;ted not long, but grew out of u&s;e very long ago; and that the Civil Law does flouri&s;h no where &s;o much as in tho&s;e two great Monarchies, and &s;o has done for a long time toge|ther; and have both &s;ent forth men as famous and renowned in that profe&s;&s;ion as in any other; of whom mention &s;hall be made hereafter. For both the &s;tudy and practice of the Civil Law has been found of &s;uch ab&s;olute u&s;e and nece&s;&s;ity, that tho&s;e States that have been brought upon &s;ome pretence of convenience to &s;uppre&s;s it, have been glad after &s;ome little want thereof to ree&s;tabli&s;h it and &s;et it up again.</P>
<P><HI>Baldwine</HI> in his Prolegomena takes in all Chri&s;tendome in this particular; <HI>Religio Chri&s;tiana,</HI> &s;aith he, <HI>probavit retinuitque
<PB N="131" REF="73">politicas Romanorum leges, quas aequitate &s;umma &s;ubnixas &amp; na|turalium notionum hone&s;tati proximas e&s;&s;e videbat; ea&s;que reve|rita e&s;t tanquam Dei dona &amp; beneficia:</HI> Chri&s;tian Religion hath allowed of and kept the Roman Laws, which it &s;aw were groun|ded upon pure equity, and came neare&s;t to natural integrity it &s;elf, and hath ever &s;ince reverenced them as the gifts of God and ble&s;&s;ings be&s;tow'd on Man. <HI>Jus Civile Romanorum,</HI> &s;ayes We&s;enbeck,<NOTE N="o" PLACE="marg">Parat. Dig. De legib. nu. <HI>9.</HI></NOTE> <HI>propter &s;ummam aequitatem &amp; prudentiam, jus qua&s;i gentium, &amp; omnium populorum bene in&s;titutorum commune e&s;t:</HI> The Civil Law of the Romans, for its &s;pecial equity and wi&s;dome, is come to be as it were the Law of Nations and of all well ordered people. <HI>Jus Romanum tam aequum e&s;t &amp; rationi con&s;entaneum,</HI> &s;ayes Molinaeus,<NOTE N="p" PLACE="marg">Ad con&s;uetud. Pari&s;. Tit. Des fiefs. nu. <HI>110.</HI></NOTE> <HI>ut omnium fere Chri&s;tianarum gentium u&s;u &amp; approbatione commune &s;it effectum:</HI> The Roman Law is &s;o equal and &s;o coming up to rea&s;on it &s;elf, that by the u&s;age and acceptation of almo&s;t all Chri&s;tian Nations, it is turn'd into a generall and common Law. <HI>Hoc jus commune,</HI> &s;aith Peckius,<NOTE N="q" PLACE="marg">Ca. <HI>28.</HI> De Reg. jur. in <HI>6.</HI> in princip.</NOTE> <HI>quod tantis vigiliis excogitatum &amp; inventum e&s;t, adeo bonum &amp; aequum &s;emper vi&s;um fuit omnibus, ut hi quos Ro|mani imperii leges non tenent, hoc ip&s;um jus tanquam aequitati naturali maxim&egrave; con&s;entaneum, libenter &s;equantur &amp; ubique probent, &s;ua&s;que leges per hoc interpretentur;</HI> This common Law, meaning the Roman, invented and wrought out by &s;o hard and &s;o long labour, has alwayes &s;eemed unto all States &s;o good and con&s;cionable, as even tho&s;e Nations whom the Law of the Ro|man Empire does not oblige at all, do notwith&s;tanding freely follow and approve thereof, as mo&s;t agreeable to natural equi|ty, and do interpret their own peculiar Laws by them. Parti|cularly for <HI>France, Equinarius Baro</HI><NOTE N="r" PLACE="marg">In&s;t. De ju. nat. gent. &amp; Ci|vil.</NOTE> &s;ayes, that, <HI>&s;i more &s;ta|tutore regionis aut lege Regia controver&s;iae dirimi non po&s;&s;int, ad jus Cae&s;areum velut ad</HI> <GAP DESC="foreign"> <HI>Judices regii caeterique laici con|fugiunt;</HI> If there be no cu&s;tome or con&s;titution to determine the controver&s;ie, both Judges and people go to the imperiall Law as the be&s;t that ever was. And a little after, <HI>Jus Roma|num,</HI> &s;aith he, <HI>commune jus Franci appellant, &amp; interdum ab&s;o|lut&egrave; jus, vel jus civile, qu&ograve;d eo jure communiter omnes regiones utantur, ubi pactum, mos, lex regia de&s;ideratur;</HI> We French|men call the Roman Law the common Law, and &s;ometimes &s;im|ply
<PB N="132" REF="74">the Law, or the Civil Law, becau&s;e that Law all Nations do commonly u&s;e, where agreement, cu&s;tome, and particular Law is wanting. <HI>Annaeus Robertus,</HI><NOTE N="s" PLACE="marg">Rer. Judic. lib. <HI>2.</HI> ca. <HI>1.</HI></NOTE> another French Lawyer &s;ayes, that &s;ome Provinces in <HI>France,</HI> either by &s;pecial privi|ledge, or by grant from their Kings heretofore made do u&s;e the Roman Laws; as the Territory of <HI>Tholo&s;e,</HI> and that of <HI>Daul|phine,</HI> and &s;ome others, and the&s;e are call'd <HI>Provinciae juris &s;cri|pti,</HI> the provinces of the written Law: &s;ome others, &s;aith he, and indeed the mo&s;t and be&s;t Provinces are governed by unwrit|ten cu&s;tomes; but in the end he adds for the whole Kingdome thus, <HI>Civile Romanorum jus in &s;enatu &amp; tribunalibus Franciae citare licet, non qu&ograve;d Romanis legibus parere nece&s;&s;e habeamus, &s;ed ut aequitatis ratio ex tot clari&s;&s;imorum &amp; prudenti&s;&s;imorum Juri&s;|con&s;ultorum re&s;pon&s;is attendi &amp; inspici queat;</HI> The Civil Law of the Romans is alledged in the judicatories of <HI>France,</HI> not that we think our &s;elves bound to them, but that out of the re&s;olu|tions of &s;o many mo&s;t famous and mo&s;t prudent Lawyers, the rule of equity might be extracted. For <HI>Spain, Fernandus Va&s;|quius,</HI><NOTE N="t" PLACE="marg">De &s;ucce&s;. cre|at. lib. <HI>3.</HI> parag. <HI>26.</HI> limitat. <HI>31.</HI> nu. <HI>71.</HI></NOTE> one of their own Lawyers, &s;hall give te&s;timony, how the Imperial Law and the Law of their own Nation goes hand in hand conjoyned and link'd together: <HI>Jus Civile Hi&s;panorum,</HI> &s;aith he, <HI>hospitio voluntari recepit jus civile Romanorum: jamque no&s;trum jus civile Hispanicum &amp; jus civile Romanorum &s;imul pariterque coeunt, licet ex vi juri&s;dictionis illud recipere nos Hispani non teneremur:</HI> The Law of <HI>Spain</HI> 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 <HI>Spain</HI> to enforce a &s;ubmi&s;&s;ion to it.</P>
</DIV2>
<DIV2 N="5" TYPE="chapter">
<PB N="133" REF="74">
<HEAD>CHAP. V.</HEAD>
<ARGUMENT>
<P>The general admittance and u&s;e of the Civil Law in for|reign parts, is acknowledg'd by our &s;elves here in <HI>England.</HI></P>
</ARGUMENT>
<P>I Shall not travail any further to cite any more forreign te&s;ti|mony, to prove that this Law is generally received and pra|cti&s;ed by other Nations; and the rather, becau&s;e Dr <HI>Duck</HI> in his book, has by variety of proof &s;o &s;ufficiently made it good already. But yet it is worth the &s;etting down, what &s;ome of our own Countrey-men have in their writings acknowledg'd to the very &s;ame purpo&s;e; and tho&s;e e&s;pecially among&s;t the re&s;t, who&s;e intere&s;t and high valuation which they pa&s;s upon the Laws of their own Countrey, will not permit them to a&s;cribe more to the Civil Law, then the ju&s;t truth will bear.</P>
<P>And it is mo&s;t ob&s;ervable, what King <HI>James</HI> him&s;elf, the learnede&s;t of all modern Princes, &s;aid here in a Speech made to no le&s;s &s;olemn a&s;&s;embly, then his Lords and Commons of Parlia|ment,<NOTE N="u" PLACE="marg">21. <HI>Martii</HI> 1609.</NOTE> which we have extant among&s;t his printed works. <Q>As a King, &s;aith he, I have lea&s;t cau&s;e of any man to di&s;like the Common-Law; for no Law can be more favourable and advantagious for a King, and extendeth further his Preroga|tive, then it doth. And for a King of <HI>England</HI> to de&s;pi&s;e the the Common-Law, it is to neglect his own Crown. Yet, &s;aith he, I do greatly e&s;teem the Civil Law, the profe&s;&s;ion thereof &s;erving more for general learning, and being mo&s;t nece&s;&s;ary for matters of Treaty with all forreign Nations. And I think, that if it &s;hould be taken away, it would make an entry to Barbari&s;me in this Kingdome, and would blemi&s;h the ho|nour of <HI>England;</HI> for it is in a manner <HI>lex Gentium,</HI> and maintaineth entercour&s;e with all forreign Nations. But I onely allow it to have cour&s;e here, according to tho&s;e limits of juri&s;diction, which the Common-Law it &s;elf doth allow it.
<PB N="134" REF="75">And therefore though it be not fit for the general govern|ment of the people here, it doth not follow it &s;hould be ex|tinct; no more, then becau&s;e the Latin tongue is not the mother or radicall Language of any Nation in the World at this time, that therefore the Engli&s;h tongue &s;hould onely now be learned in this Kingdome, which were to bring in bar|bari&s;me.</Q></P>
<P>And in another &s;peech in Star-chamber,<NOTE N="x" PLACE="marg">20 <HI>Iun.</HI> 1616.</NOTE> printed al&s;o; <Q>God forbid, &s;aith he, the Law of Nations (intending thereby chiefly the Civil Law) &s;hould be barred in this Kingdome, and that for two cau&s;es; one, becau&s;e it is a Law to &s;atisfie &s;trangers, which will not hold them&s;elves &s;o well &s;atisfied with other municipal Laws; another, to &s;atisfie our own &s;ub|jects in matters of Piracy, Marriage, Wills, and things of like nature.</Q></P>
<P>And again, when he was &s;o mightily pre&s;&s;ing to have had an union of <HI>England</HI> and <HI>Scotland</HI> under the &s;ame policy of Laws, as they had but one and the &s;ame King; in a &s;peech made upon that &s;ubject,<NOTE N="y" PLACE="marg">Ult. Mart. <HI>1607.</HI></NOTE> extant in his printed works, he told his two Hou&s;es of Parliament, that in point of conjunction of Nations, the Civil Law ought to bear a great &s;way, it being the Law of Nations. The&s;e are the expre&s;&s;ions of a King, the intere&s;t of who&s;e Crown and Scepter, and the prerogatives thereunto be|longing did depend upon the favour of another Law; and yet he po&s;itively and in down-right termes in the face of all his peo|ple, avows the Civil Law to be the Law of Nations; and that all tran&s;actions of Treaty and of Trade with forreign Nations were di&s;patched by the rule and rea&s;on thereof; and that the authority thereof was &s;o great in the e&s;teem of &s;trangers, that they would re&s;t &s;atisfied therewith, when no municipal Law could &s;atisfie them. But in that he avers al&s;o, that when the people of <HI>England</HI> &s;hall exterminate that Law, (which mu&s;t needs be when the practice thereof is quite taken away or thru&s;t into a poor narrow compa&s;s) their honour will be ob&s;cured, and they will be in danger to be over-run with barbari&s;me; it was never &s;o well worth the ob&s;erving, as at this pre&s;ent time. And it clearly &s;hews, that wi&s;e and learned King did perfectly under&s;tand the true u&s;e of the Civil Law; for as the language
<PB N="135" REF="75">thereof mu&s;t needs be a means to maintain learning, which does civilize &amp; &s;often the minds of men; &s;o there is no &s;ort of learning with the which the matter of it does not corre&s;pond and partici|pate; but above all it does afford more and better rules for civil living and orderly conver&s;ation among&s;t men, and for righte|ous dealing each with other, then any other &s;tudy or learning what&s;oever.</P>
<P>But this practi&s;e and u&s;age of the Civil Law in forreign parts is yet better confirmed by the authority of tho&s;e, who &s;tudy|ing and profe&s;&s;ing the Law of <HI>England,</HI> have been alwayes jealous of the ri&s;ing and growth of the Civil Law in this Nation. For though they have de&s;ired to keep it low here (for what rea&s;on I need not mention) yet &s;ome of them have freely enough owned, how much it is in u&s;e and practi&s;e in other Countreys.</P>
<P>Sir <HI>Francis Bacon</HI> in his Epi&s;tle Dedicatory to the Queen, &s;et before his Maximes of Law, after he had told the Queen, that <HI>Ju&s;tinian</HI> the Emperour did gloriou&s;ly, and yet aptly call the Body of the Roman Laws, <HI>proprium &amp; &s;ancti&s;&s;imum templum ju&s;titiae con&s;ecratum,</HI> a true and a mo&s;t &s;acred temple con&s;ecra|ted unto ju&s;tice; he &s;ayes, that it is a work of great excellency indeed, as may well appear, in that <HI>France, Italy,</HI> and <HI>Spain,</HI> who have long &s;ince &s;haken off the yoke of the Roman Em|pire, do yet neverthele&s;s continue to u&s;e the policy of that Law.</P>
<P>My Lord <HI>Elle&s;mere</HI> Chancellour of <HI>England,</HI> as Sir <HI>Francis Bacon</HI> was, in his &s;peech of the <HI>Postnati,</HI> does expre&s;ly deliver, that the Civil Law is taken to be the mo&s;t univer&s;al and general Law in the World.</P>
<P>Sir <HI>John Forte&s;cue</HI> him&s;elfe, Lord chief Ju&s;tice of <HI>England,</HI> and afterwards Lord Chancellour in King <HI>Henry</HI> the &s;ixth's dayes, in his book, wherein he does &s;o highly magnifie and com|mend the Laws <HI>England</HI> above the Civil Law, yet he could &s;ay,<NOTE N="z" PLACE="marg">De Laud. le|gum Angliae. ca. <HI>9.</HI></NOTE> That <HI>Civiles &s;upra humanas cunctas leges alias fama per orbem extollit glorio&s;a;</HI> The Civil Laws throughout the whole World, are advanced in glory and renown above all other mans Laws.</P>
<P><HI>Fulbeck</HI> al&s;o, another of the &s;ame profe&s;&s;ion, and of great
<PB N="136" REF="76">learning, does agree with the former in the&s;e words;<NOTE N="a" PLACE="marg">In his paral|lel part. 1. E|pi&s;tle to the Reader.</NOTE> The Roman Laws; &s;aith he, in the times of <HI>Arcadius, Theodo&s;ius,</HI> and <HI>Ju&s;tinian,</HI> recovered their &s;trength; and &s;hining to all the Com|mon-wealths of <HI>Europe,</HI> as the Sun to all the climates of the Earth, have for their worthine&s;s, and nece&s;&s;ary u&s;e and em|ployment, received entertainment, countenance, and great re|ward of Emperours, Kings and Princes.</P>
<P>Likewi&s;e Mr <HI>Selden,</HI> a Graduate in the Common-Law, but a great Student in all learning, and one that &s;eems to have &s;ear|ched narrowly into the &s;tate of the Civil Law, as it has &s;tood in u&s;e and reque&s;t in other Countreys as well as in <HI>England,</HI> in all times, in his additional di&s;cour&s;e upon <HI>Fleta,</HI> wholly &s;pent upon that &s;ubject, owns the entertainment and u&s;e of the Civil Law in the We&s;tern Countreys of <HI>Europe,</HI> that had left to acknowledge the Roman Empire long before. For in that di&s;|cour&s;e<NOTE N="b" PLACE="marg">Ca. <HI>6.</HI> parag <HI>4.</HI></NOTE> he hath the&s;e words:</P>
<P><HI>Ita jam, id e&s;t &s;ub annum</HI> 1145, <HI>receptus fuit Juris Ju&s;tinia|naei u&s;us, ut quoties interpretandi jura &s;ive vetera &s;ive nova &s;ive ratio &s;ive analogia de&s;ideraretur, aut mos aut lex expre&s;&s;ior non reperiretur, ad jus illud Ju&s;tinianaeum tum veluti rationis juridi|cae promptuarium optimum ac diti&s;&s;imum, tum ut qu&ograve;d legem in nondum definitis ex ratione &s;eu analogia commod&egrave; &s;uppleret, e&s;&s;et recurrendum. Certe ita ferme Rhodiam recepere veteres Romani legem in rebus nauticis, ut etiam apud nos &amp; gentes vicinas leges recipiuntur Oleronianae; c&ugrave;m interim nec hae nec illae ex authori|tate &s;ui, qu&acirc; prim&ograve; conditae &s;unt, vim &s;ic obtinuerint. Atque ut Academiae dem&ugrave;m non paucae aliae per Europam Occidentalem hac in re, quoad &s;tudiorum in&s;titutionem, Bononien&s;em; Ita etiam Regna alia &amp; Respublicae imperium Cae&s;arianum quoad u&s;um ju|ris eju&s;dem aliquem imitatae &s;unt, retentis &s;emper ac ubique moribus ali&acirc;s avitis legibu&s;que &s;ibi, pro varia regiminis cuju&s;que formula, ante conditis, nova&s;que condendi tum libertate tum u&s;u. Neque ullibi pro &s;implici jur&iuml;s norma in Occidente inde u&s;urpatum e&s;t jus illud Cae&s;areum, &s;ed cum temperamentis quae jam diximus:</HI> That is, About the year One thou&s;and one hundred fourty five, <HI>Ju&s;tinians</HI> Law came to be u&s;ed in the We&s;terne part of <HI>Europe,</HI> in &s;uch ca&s;es, as either the State had made no &s;pecial provi&s;ion at all in them, or that there was no cu&s;tome to re&s;olve them by;
<PB N="137" REF="76">or where in default of both the ca&s;e that fell out was to be &s;et|led by right and &s;ound rea&s;on, or by &s;ome other ca&s;es that in all circum&s;tances did re&s;emble the matter in que&s;tion; or la&s;tly, where the local &s;tatutes them&s;elves were not &s;o clear, but that they &s;tood in need of interpretation, and were &s;o doubtfully penn'd, that &s;olid rea&s;on and a deep judgment was to be made u&s;e of to explain them. In all which ca&s;es recour&s;e was had to the Law of <HI>Justinian,</HI> as to the be&s;t and riche&s;t Trea&s;ury of legal rea&s;on and equitable knowledge; and which could be&s;t &s;upply the want of a peculiar Law either with concludent rea&s;on, or with parallelling the ca&s;e in que&s;tion with other expre&s;s ca&s;es of the Law, as did exactly &s;uit therewith. Much after the &s;ame &s;ort were the Rhodian Laws embraced by the ancient Romans to regulate &s;uch matters as fell out at Sea, as the Laws of <HI>Ole|ron</HI> have been in <HI>England</HI> and el&s;ewhere; when as notwith|&s;tanding neither the one nor the other have had &s;uch a binding power in them, as they had when and where they were fir&s;t or|dained. And as many Univer&s;ities at la&s;t were guided by that of <HI>Bononia</HI> (where learning, after it had layen a long time neg|lected, was fir&s;t revived) in &s;etting up the teaching and read|ing of all kind of literature; &s;o did al&s;o other Kingdomes and Common-wealths in &s;ome mea&s;ure make u&s;e of the Civil Law, as the Empire did, re&s;erving to them&s;elves &s;uch old Laws and Cu&s;tomes, as they had proper to their &s;everal formes and wayes of government, and the freedome of making new, which they practi&s;ed as oft as they had occa&s;ion. Neither, &s;aith he, has that Imperial Law been at any time &s;ince ob&s;erved in the We&s;tern Countreys for a po&s;itive commanding Law, but ever under the rules and limits before &s;poken of.</P>
<P>The &s;ame Mr <HI>Selden</HI> al&s;o in his <HI>Mare Clau&s;um,</HI><NOTE N="c" PLACE="marg">Lib. <HI>1.</HI> ca. <HI>24.</HI></NOTE> although he will have the Europaean Nations to practi&s;e divers things ve|ry oppo&s;ite to the Civil Law, as that there are no Slaves now, or right of per&s;onal Po&s;tliminiage, as were by the Civil Law; and that goods ca&s;t away at &s;ea, do by the cu&s;tomes and ordi|nances of many Countreys accrue to the Princes them&s;elves, which by the cour&s;e of the Civil Law were re&s;tored back to the owners, or if they claimed not went to the fir&s;t occupant; yet he commends the Princes of <HI>Europe</HI> for e&s;tabli&s;hing the u&s;e
<PB N="138" REF="77">of the Civil Law in their Academies and in their Tribunals &s;o far, as their own peculiar &s;tatutes were not contrary there|unto.</P>
<P>I cannot al&s;o omit what Mr <HI>Selden</HI> writes in his Review upon his <HI>History of Tythes;</HI><NOTE N="d" PLACE="marg">Ca. <HI>7.</HI></NOTE> Where though he vehemently de|claimes again&s;t the gro&s;s ignorance of tho&s;e, that do not &s;tick to publi&s;h here in <HI>England</HI> commonly, that all other States are governed onely by the Civil Law; and would have &s;uch to un|der&s;tand the difference betwixt the u&s;e of Laws in &s;tudy or argu|ment, and the governing authority of them: yet he acknow|ledgeth, that in the Empire and a good part of <HI>Itaely,</HI> through the power of Emperours and Popes, the authority of the Civil Law doth &s;till continue; and that in <HI>Poriugal</HI> the Roman Civil Law is authorized by an Ordinance of State, in ca&s;es which are not literally comprehended in the cu&s;tomes or con&s;titutions of the Kingdome. And as for other Chri&s;tian States, which ac|knowledge no &s;uperiour, or any &s;ubjection to the Empire, as <HI>France, Spain, Denmark, Poland,</HI> the City of <HI>Venice,</HI> and what al&s;o in <HI>Germany</HI> hath made it &s;elf free from the Empire, though as it is Law, he will not have it to binde or rule with them; yet he &s;aith, in all of them, the rea&s;on of it brought in|to method, is u&s;ed and applied commonly to argument, when any of their cu&s;tomes or &s;tatutes come in que&s;tion; becau&s;e the practi&s;ers &s;tudied it in the Univer&s;ities, and had thence their degrees given them. And &s;o the old Imperial Civil Law <HI>valet pro ratione, non pro inducto jure; &amp; pro ratione,</HI> onely <HI>quantum Reges, Dyna&s;tae, &amp; Respublicae intra pote&s;tatis &s;uae fines valere patiuntur;</HI> that is, it is of force as Rea&s;on, not as an introdu|ced Law; and no farther as rea&s;on, then as Kings, Rulers, and Common-wealths will have it to prevaile within their &s;eve|rall Territories.</P>
<P>And yet the &s;ame Mr <HI>Selden</HI> al&s;o &s;aith within very few lines after, that doubtle&s;s cu&s;tome hath made &s;ome parts of the Impe|rials to be received for Law in all places, where they have been &s;tudied. And albeit he be very vehement in a&s;&s;erting, that ju|&s;tice is admini&s;tred in every State by its own peculiar Laws, yet he admits al&s;o, that the interpretation of tho&s;e Laws in mo&s;t places, &s;ave <HI>England</HI> and <HI>Ireland,</HI> hath of late time been much
<PB N="139" REF="77">directed by the rea&s;on of the Imperials, and onely by the rea&s;on of them, and not by their authority; and that al&s;o in ca&s;e where they are not oppo&s;ite at all to the &s;pecial Law of the place, but &s;eem to agree with the Law of Nations or common rea&s;on. And he grants moreover, that ever &s;ince <HI>Frederick Barbaro&s;&s;a</HI>'s time (which is near 500 years ago) the Civil Law has grown into a common profe&s;&s;ion in this We&s;terne World.</P>
</DIV2>
<DIV2 N="6" TYPE="chapter">
<HEAD>CHAP. VI.</HEAD>
<ARGUMENT>
<P>The Civilians them&s;elves do not enlarge the u&s;e and practi&s;e of the Civil Law in forreign parts, fur|ther then Mr <HI>Selden</HI> him&s;elf in his writings grants it to extend.</P>
</ARGUMENT>
<P>FRom what has been cited out of Mr <HI>Selden,</HI> it does appear, that there is as much granted by Mr <HI>Selden</HI> to the Civil Law, as ever was challenged by any Civilian, or ever a&s;cribed to it by any, or that any can wi&s;h to be granted to that profe&s;&s;ion in any Nation.</P>
<P>He in effect acknowledgeth, that when the u&s;e thereof came to be renewed in <HI>Europe</HI> with other learning, it was found to be &s;o rich a Trea&s;ury of rea&s;on, judgment, and true natural equity; and &s;o u&s;eful for all matters that re&s;pected Civil &s;ociety and government, that by the knowledge and direction of the Civil Law, and the rules and principles thereof they knew how to &s;upply with re&s;olution &s;uch ca&s;es, as their National Laws had not made any provi&s;ion at all in; or if they had, but were dark or intricate, this would help to explain and illu&s;trate them; which neither common rea&s;on nor any other humane learning would enable them to do. The Univer&s;ities have therefore &s;ince made it their common &s;tudy, and commonly given
<PB N="140" REF="78">degrees in it, and have &s;ent forth the profe&s;&s;ours thereof into all Tribunals to be the min&s;ters of right and ju&s;tice there, till now at la&s;t it is grown to be a common profe&s;&s;ion throughout <HI>Europe.</HI> And though the original authority which it had in the Roman State, is quite worn out, no State being now &s;ubject to the Roman Sovereignty; yet Mr <HI>Selden</HI> does admit it to be entertained for a binding Law by ordinance in &s;ome places, that &s;tamp that authority upon it which of it &s;elf it hath not; in o|thers u&s;ually ob&s;erved as a Law by cu&s;tome and practi&s;e; but where it pa&s;&s;es not for Law neither way, there the rea&s;on and wi&s;dome thereof prevailes, and every man &s;uffers him&s;elf to be convinced thereby, <HI>non vi nece&s;&s;itatis &s;ed vi rationis,</HI> not for|cing the will, as a Law does, but as by rea&s;on powerfully work|ing upon, and at la&s;t controuling the under&s;tanding.</P>
<P>Thus far goes Mr <HI>Selden</HI> him&s;elf; and by no Civilian has a greater latitude then this been ever given to the Civil Law. For what King <HI>James</HI> &s;pake to his Parliament in the year 1609, tou|ching this matter; That there was no Kingdome in the World, not onely <HI>Scotland,</HI> but not <HI>France,</HI> nor <HI>Spain,</HI> nor any other Kingdome governed meerly by the Civil Law, but every one of them hath their own Municipal Laws agreeable to their cu|&s;tomes, as this Kingdome hath the Common-Law; we all unani|mou&s;ly own to be true.</P>
<P>And what he told them of <HI>Scotland</HI> in particular, in the year 1607. may be as well and as truly &s;poken of all the States in <HI>Europe.</HI> If a man, &s;aith he, plead there, that the Law of the Nation is otherwi&s;e, it is a bar to the Civil; and a good Chan|cellour or Pre&s;ident will oftentimes repel and put to &s;ilence an argument that the Lawyers bring out of the Civil Law, where they have a clear &s;olution in their own Law. So as, &s;aith he, the Civil Law in <HI>Scotland</HI> is admitted in no other ca&s;es, but to &s;upply &s;uch ca&s;es, wherein the Municipal Law is defective. This is generally reported by others, never que&s;tioned by our &s;elves: For we are of opinion, there is no people in the World govern|ed &s;ingly by any one kind of Law what&s;oever, nor indeed can be; much le&s;s can any State be totally governed by the Roman Law, but that there mu&s;t needs be a &s;uperadded and a peculiar Law, e&s;pecially as to government, &s;uiting with the climate it
<PB N="141" REF="78">&s;elf, the nature and manners of the people, the fa&s;hion and form of publick actions, divers accidents of the time, and &s;undry other occurrences. Nay, we often &s;ee it fall out, that &s;ome certain Laws that are &s;pecially made for a people, and at their fir&s;t ordaining are found to be mo&s;t excellent and very whole|&s;ome Laws; yet in proce&s;s of time through alteration of things, and the very per&s;ons them&s;elves for which they were original|ly made, it is as great wi&s;dome and as nece&s;&s;ary to change them and quite take them away, as it was at fir&s;t to devi&s;e 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 u&s;ages then in being, &s;hould prove incongruous to the men and to the affaires of this pre&s;ent world, which is of a clean different face and nature. For in&s;tance:</P>
<P>A Roman &s;ubject was not &s;uch a &s;upreme moderator among&s;t his Children, nor &s;uch a free di&s;po&s;er of his own e&s;tate, as that he could make his Will thereof, as he plea&s;ed, preferring one childe, and excluding another, or parting it too unequally among&s;t them, or gratifying &s;ome &s;tranger without remembring any of them.</P>
<P>If therefore a childe were quite left out of his fathers Will, or were e&s;pecially di&s;inherited, but without any cau&s;e mention|ed, or upon &s;uch a cau&s;e as the Law did not allow of, or if up|on a legal cau&s;e, yet not &s;uch as was true in fact, the Will was void and null.<NOTE N="e" PLACE="marg">We&s;emb. pa|rat. Dig. De li|ber. &amp; po&s;thum.</NOTE> The ju&s;t portion or &s;hare that every child might expect from his father, if he made a Will, and which he could not give from him without lawful cau&s;e, was, if there were but four children in all, or under, an equal &s;hare in the third part of his whole &s;ub&s;tance both Land and goods; (for at Civil Law they both came under one reckoning, and went one and the &s;ame way without any difference) but if there were more then four children, then a full half of the whole e&s;tate was equally &s;hared among&s;t them all.<NOTE N="f" PLACE="marg">Novell. De trient. &amp; &s;emi&s;&s; parag. haec nos.</NOTE></P>
<P>If le&s;s was given to any child then this ju&s;t proportion, or if it were clogg'd with any condition, or time of payment, where|by it could not come pre&s;ently and freely to him, the Will was not ab&s;olutely void,<NOTE N="g" PLACE="marg">L. omni modo. Co. de inoffic. te&s;tam.</NOTE> but a complaint might be brought to re&s;tore him to his ju&s;t and equal &s;hare, and to have it pre&s;ently
<PB N="142" REF="79">and ab&s;olutely without condition, incumbrance, or day for payment given.<NOTE N="h" PLACE="marg"><HI>L.</HI> Quoniam in prioribus. Co. De inoffic. te&s;tam.</NOTE></P>
<P>But in tho&s;e Nations and Countreys where the &s;ubjects are &s;uch free and ab&s;olute propietaries of all the e&s;tate they have, that they can di&s;po&s;e of the &s;ame how they will, even from their own children, and to them in what inequality they will, the&s;e tender and indulgent dictates of the Civil Law are u&s;ele&s;s and un&s;uitable. Tho&s;e Titles then and con&s;titutions of the Civil Law, that treat on that &s;ubject, <HI>Dig. &amp; Co. De lib. &amp; po&s;tum. haered. in&s;t. vel exhaered. De exhaered. Lib. De Inoffic. te&s;tam.</HI> are not capable to receive any practical u&s;e or application in tho&s;e Territories.</P>
<P>Again, the greate&s;t puni&s;hment that the Romans inflicted upon &s;imple theft, was to pay four-fold, where the thief was taken in the act it &s;elf, or at lea&s;t &s;een and cried out upon be|fore he got out of &s;ight,<NOTE N="i" PLACE="marg">Culac lib. <HI>11.</HI> ob&s;. <HI>58.</HI></NOTE> or if otherwi&s;e the theft was not &s;o manife&s;t, to pay double the value of that which he &s;tole, and the reparation was made onely to the party damnified. And if there were divers per&s;ons taken or di&s;covered to be actors of one and the &s;ame theft, they all underwent but one and the &s;ame penalty among&s;t them, yet either of them might be &s;ued for the whole.<NOTE N="k" PLACE="marg">L. <HI>21.</HI> parag. <HI>9.</HI> Dig. de furt.</NOTE></P>
<P>But by the Civil Law it is not onely theft, privily to take and carry away &s;omething that is anothers with an intent to defraud him of it; but it is a theft al&s;o, when one that has lent money upon a Pawn does employ the pawn to any private u&s;e of his own; or when one that is intru&s;ted with the &s;afe keeping of any thing for me, does u&s;e or wear it him&s;elf; or when one has bor|rowed a thing of me for a certain u&s;e, and he does otherwi&s;e im|ploy it, or for a certain time, and he detains it longer, or carries it whither he &s;hould not, and further then he promi&s;ed to do.<NOTE N="l" PLACE="marg">L. Si pignore. <HI>54.</HI> Dig. De furt. parag. fur|tum autem. Iu&s;t. De oblig. quae ex delict.</NOTE></P>
<P>Howbeit, though <HI>Ju&s;tinian</HI> will not have any theft puni&s;hed with the lo&s;s of life or member,<NOTE N="m" PLACE="marg">Novell. <HI>134.</HI> ca. fin. ver&s;. pro furto autem.</NOTE> yet he leaves High-way-men, and breakers into hou&s;es, and pyrates at &s;ea, to be cha|&s;ti&s;ed by death;<NOTE N="n" PLACE="marg">Ca. Ult. No. <HI>134.</HI> l. Dig. ad l. Cornel. de &s;icar.</NOTE> for &s;uch acts as the&s;e are accounted more then theft by the Civil Law. And for want of ability to make pecuniary reparation, he will have all thieves puni&s;hed at the Judges di&s;cretion,<NOTE N="o" PLACE="marg">L. ult. Dig. de furt. l. <HI>1.</HI> parag. generaliter. Dig. de paen.</NOTE> corporally not capitally. Surely then in a
<PB N="143" REF="79">ca&s;e of &s;imple theft it were very improper to bring into argu|ment, or to cite any Text of the Civil Law <HI>De furtis,</HI> in any State or Countrey, when theft is look'd upon rather as a pub|lick crime, then as a private injury, and is puni&s;hed with death it &s;elf, without any &s;atisfaction made to the party.</P>
<P>Likewi&s;e Slavery, as it was under the Romans, not well &s;ui|ting with Chri&s;tian Religion (which looks upon all men alike, proceeding from one common parent, and created for one and the &s;ame end) is in all Chri&s;tian Nations worn out and aboli&s;h|ed. Becau&s;e it &s;eems to be again&s;t Chri&s;tian charity and that brotherly communion which we &s;tand obliged by to one ano|ther, to exerci&s;e &s;uch an ab&s;olute dominion over any, that na|ture and religion has made our equals.</P>
<P>Tho&s;e hard and &s;evere Laws of &s;ervitude therefore, which were in u&s;e among&s;t the Romans, whereby &s;laves were excluded from the participation of any civil right what&s;oever,<NOTE N="p" PLACE="marg">L. <HI>32.</HI> Dig. de reg. ju.</NOTE> and could not &s;o much as marry, nor have any e&s;tate of their own, nor bring any action or complaint in their own name, but as to civil communion were accounted as plainly dead;<NOTE N="q" PLACE="marg">L. <HI>209.</HI> Dig. de reg. jur.</NOTE> wanting in a Chri&s;tian Common-wealth that &s;ubject matter for which they were fir&s;t ordained, they mu&s;t needs fail al&s;o of their u&s;e and vi|gour, and be e&s;teemed incongruous and improper there.</P>
<P>The&s;e and &s;uch like in&s;tances do &s;hew, that the Law of a Na|tion mu&s;t nece&s;&s;arily be fitted to the government of it, and to the di&s;po&s;ition of the people, and &s;uch affairs as they u&s;e to deal in; and that it is not po&s;&s;ible, that the Civil Law alone without the help of a peculiar Law proper to each Nation, &s;hould be &s;ufficient to &s;teer and carry on all the affairs of every Nation, &s;o differing from, and as I may &s;ay, directly oppo&s;ite to the Roman. But what are a few in&s;tances of Laws abrogated, or out of u&s;e, and that &s;ometimes but in part neither, and which chiefly refer to publick Government, to a whole Body of ju|&s;tice, both di&s;tributive, and commutative, which that Law com|prehends, and takes in?</P>
</DIV2>
<DIV2 N="7" TYPE="chapter">
<PB N="144" REF="80">
<HEAD>CHAP. VII.</HEAD>
<ARGUMENT>
<P>No Municipal Law is &s;ufficient to meet with the multitude and variety of ca&s;es and que&s;tions that will happen at Land, at Sea, and in forreign parts: Which has cau&s;ed &s;o many Nations to make u&s;e 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 &s;ubject to the mi&s;chiefs of arbi|trarine&s;s, folly, and violence.</P>
</ARGUMENT>
<P>IT is the practi&s;e of the whole world to adhere and &s;tand to the dictates of their own Laws, and in no ca&s;e to admit of any other Rule, either of Civil Law, or acute&s;t rea&s;on again&s;t that which their own National Laws have declared and direct|ed to be done.<NOTE N="r" PLACE="marg">Nee judicibus contra leges ju|dicare, nec de le|gibus in republi|ca probatis ac &s;u&s;ceptis dispu|tare fas e&s;t. <HI>Bo|din. de rep. lib. 1. ca. 10. in fin:</HI></NOTE> But then it is vi&s;ible to every di&s;cerning eye, that the Laws that are made, are oft times drawn &s;o &s;hort, and put into &s;uch ob&s;cure and ambiguous termes, that it is but re|qui&s;ite &s;ome other Law or rule &s;hould be found out to &s;upply, clear, and explain them. And every where the body of the Muni|cipal con&s;titutions appears &s;o narrow and &s;lender, and compre|hends &s;o little, that the number of ca&s;es that are expre&s;ly re|&s;olved by Law, is not by many degrees comparable to the num|ber of tho&s;e, that do frequently and almo&s;t daily happen, wherein the Law of the Nation has not made any deci&s;ion at all.</P>
<P>Sir <HI>John Davis</HI> in his Preface to the Iri&s;h Reports, does not &s;tick to acknowledge this to be mo&s;t true in the Municipal Law of <HI>England,</HI> though in his prai&s;es of it he &s;ets it above all the Laws of the World be&s;ides. For, &s;aith he, if the Rules and Maximes of the Law were a thou&s;and times as many as they be indeed, yet would they carry no proportion with the infinite diver&s;itie of mens actions, and of other accidents, which make the ca&s;es that are to be decided by the Law. How great need is there therefore to keep the Civil Law in <HI>England</HI> &s;till, that out of its
<PB N="145" REF="80">&s;tore and plenty it may be in&s;trumental to re&s;olve tho&s;e doubts and que&s;tions of right, which as yet have no &s;pecial Law of the Nation made for them?</P>
<P>Indeed as the humours and inclinations of men do differ, and their occa&s;ions are divers, and the ends they pur&s;ue, various, and the way and cour&s;e they take to obtain them, not the &s;ame; &s;o is it impo&s;&s;ible, that the actions that proceed from them, &s;hould be like and uniform, but mu&s;t needs, as their cau&s;es are, be various and di&s;agreeing: From whence it happens, that eve|ry day produces &s;uch accidents, as though they be not wholly new, yet they come accompanied with one circum&s;tance or other, that makes them differ from all that went before them. Be&s;ides, Nature it &s;elf brings forth &s;ome variety of contingents without any act of man.</P>
<P>All which being of &s;everal natures, and differently circum|&s;tantiated from what is pa&s;t or could be thought of, though they do too frequently happen and intermix with the affaires of men, yet to &s;upply them with a direct peculiar Law, or any other expre&s;s and determinate rule to &s;ettle them, is an enter|prize that was never undertaken by the wi&s;e&s;t Law-givers that have been;<NOTE N="s" PLACE="marg">Legi&s;lator non pote&s;t omnia de|clarare, quia res in quibus ver&s;a|tur, &s;unt prope|mod&ugrave;m infinitae; &amp; quia in hac vita mortali ni|hil e&s;t perfe|ctum; &amp; propter ingenii imbecil|litatem non po&s;|&s;umus cunctae rimari. Mantie. de tacit. &amp; am|big convent. lib. <HI>1.</HI> Tit. <HI>15.</HI> nu. <HI>19.</HI></NOTE> nor can po&s;&s;ibly be effected by any &s;ociety of men what&s;oever. For it cannot be under&s;tood, how &s;uch things can be the &s;ubject of any e&s;tabli&s;hed Law or rule, that cannot be fore&s;een, neither what, nor when, nor how they will come to pa&s;s. <HI>Hae varietates infinitae nullis legibus, nullis tabulis, nullis Pandectis, nulla librorum quantumvis immen&s;a mole ac multitu|dine capiuntur,</HI> &s;ayes <HI>Bodinus;</HI><NOTE N="t" PLACE="marg">De rep. lib. <HI>6.</HI> ca. <HI>6.</HI></NOTE> The&s;e infinite varieties can in no Laws, no Tables, no Pandects, no Books, be they never &s;o ma|ny or &s;o voluminous, be all of them contained or comprehended. And again,<NOTE N="u" PLACE="marg">Ibidem.</NOTE> <HI>Non magis legibus &s;ingula contineri po&s;&s;unt, qu&agrave;m infinitum quiddam &amp; immen&s;um ab eo quod finibus exiguis, ac veluti cancellis angu&s;ti&s;&s;imis conclu&s;um e&s;t,</HI> &s;ayes the &s;ame <HI>Bodi|nus;</HI> No ea&s;ier is it to collect all the &s;everal ca&s;es into one book of Laws, then to comprehend that which is in greatne&s;s infinite, in that which lies in a mo&s;t narrow compa&s;s, and is as it were in &s;traite&s;t bounds &s;hut up. And yet &s;ince there is a nece&s;&s;ity of &s;etling &s;uch various and &s;o unlike contingencies, &s;ome rational way or rule mu&s;t be found out whereby to compo&s;e and &s;ettle
<PB N="146" REF="81">them, le&s;t they &s;hould be made &s;ubject to meer will and plea|&s;ure, or in default of better means, men intere&s;ted therein &s;hould be left to right them&s;elves by forcible and violent wayes.</P>
<P>It is no le&s;s evident and manife&s;t, that while&s;t 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, que|&s;tions and controver&s;ies without number do ari&s;e, &s;ome whereof do concern &amp; reflect upon the States them&s;elves, as being of pub|lick concernment; others be of a more private nature, and do concern the intere&s;t of &s;ome &s;ubjects onely. But when &s;uch con|trover&s;ies of either kind do happen, is there any Municipal Law capable to decide them? &s;hould we not as much di&s;dain to be judg'd by the Law of <HI>France,</HI> or <HI>Spain,</HI> when we have to do with them, as they would to be over-ruled by ours, when they have to do with us? Nay, &s;hould we not abandon the &s;ociety of &s;uch a Nation, that &s;hould tie us to their own Laws, in matters that are tran&s;acted 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 tho&s;e who are not &s;ubject to the authority of tho&s;e that make it<NOTE N="w" PLACE="marg"><HI>Ubi ce&s;&s;at ju|ri&s;dictio &s;tatu|emium, &s;tatuti di&s;po&s;itio non obtinet.</HI> l. fin. Dig. de juti&s;d. omn. Iudic. l. 1. Co. De &s;u&s;p. fut.</NOTE>? And yet when we fall into their hands, and controver&s;ies are moved again&s;t us in their Tribunals, we mu&s;t inevitably &s;tand to and abide their ju&s;tice, and the like they owe to ours: But then right mu&s;t be done by &s;uch rules and principles, as both &s;ides may be fully &s;atisfied in the equity of them.</P>
<P>Here therefore does appear the true u&s;e of the Civil Law, and the ground whereupon all Nations have admitted it into their Courts and acts of ju&s;tice: For although it cannot be &s;aid, that there is no ca&s;e which is not contained in the Roman Law: <HI>Neque leges neque &s;enatu&s;con&s;ulta ita &s;cribi po&s;&s;unt, ut omnes ca&s;us qui quandoque inciderint, comprehendan|tur; &s;ed &s;ufficit, &amp; ea quae plerunque accidunt, contineri,</HI> &s;ayes the Civil Law it &s;elf:<NOTE N="x" PLACE="marg"><HI>L. 10.</HI> Dig. De legib.</NOTE> Neither Laws nor re&s;ults of Council can be &s;o &s;ufficiently framed, as to provide for all ca&s;es that &s;hall happen hereafter; but it may &s;uffice, if &s;uch ca&s;es be pro|vided for, as in contingency are mo&s;t familiar and common: yet &s;uch is the copiou&s;ne&s;s of that Law, beyond any that has yet been; and &s;uch a wonderful enlargement has been made
<PB N="147" REF="81">thereof by the profe&s;&s;ours of it in all ages ever &s;ince, as ca&s;es and accidents of all &s;orts and natures, and in all Countreys, have happened from time to time, from &s;tudy, argument, and the &s;everal re&s;olutions of forreign Courts applied thereunto, and all upon the rea&s;on and equity of that Law which was written by the Romans; that now it may be ju&s;tly thought, no ca&s;e can fall out or accident ari&s;e, which the learning of that pro|fe&s;&s;ion thus poli&s;hed and perfected, either in expre&s;s termes, or by parity of rea&s;on, will not determine. Wherefore it is upon ju&s;t rea&s;on, and likewi&s;e upon nece&s;&s;ity too, that &s;o many Na|tions have recour&s;e to the wi&s;dome and fulne&s;s of that Law thus amplified, as oft as their own particular con&s;titutions fail them.</P>
<P>And although there are a &s;ort of men in the world (who indeed have &s;ome good natural abilities in them, as a ready apprehen|&s;ion, a quick wit, a holding memory, and a &s;mooth elocution, but were never brought up either in Law or any learning) yet they do much pre&s;ume upon that ordinary and common under&s;tand|ing which they have, that they think, or at lea&s;t they would have the World believe &s;o, whereby they may be thought worthy of the be&s;t places of Judicature, that they can by the &s;trength of their poor illiterate rea&s;on re&s;olve all que&s;tions and doubts of Law what&s;oever, whether they ari&s;e 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 ca&s;e between Prince and people; &s;ubject and &s;tranger; one State and another; clear in Law or ambiguous; &s;etled by expre&s;s con&s;titution, or left undecided; yet their capacity, as they would have it conceived, without any &s;uch help as the Civil Law, does &s;uffice for all.</P>
<P>And yet when the&s;e pre&s;umptuous and high conceited men do &s;it to judge and admini&s;ter right on &s;uch matters, they quick|ly find what they would not before believe, or at lea&s;t not have believed by others, that their under&s;tanding is too narrow to comprehend &s;uch difficult things, and their in&s;ufficiency to be too great to determine them: and are therefore driven to con&s;ult with the learned of that profe&s;&s;ion, to who&s;e skill it does belong, not without &s;ome &s;hame to them&s;elves. And it were
<PB N="148" REF="82">to be wi&s;hed, that the onely effect of &s;uch mens ambition and confidence might re&s;t there, and that it did no greater mi&s;chief. But it commonly falls out to be fatal to the intere&s;t of many, which is taken away or prejudiced by their errour &amp; ignorance: and &s;ometime States al&s;o are embroyled in war and ho&s;tility each again&s;t other by their unskilful managery; <HI>Ignorantia judicis plerunque e&s;t calamit as innocentis,</HI> &s;ayes St <HI>Au&s;tin;</HI><NOTE N="y" PLACE="marg">De Civit. Dei. lib. <HI>19.</HI> ca. <HI>6.</HI></NOTE> the igno|rance of the Judge is frequently the woe of tho&s;e that are inno|cent.</P>
<P>And indeed though it be nothing el&s;e but rea&s;on, that does render a man capable and fitting to di&s;cu&s;s and pronounce upon &s;uch que&s;tions, yet it is not the vulgar &amp; common rea&s;on that na|ture does be&s;tow upon every man; but it is that rea&s;on which is gotten by art and &s;tudy of the Law and of the rules &amp; principles of ju&s;tice, and which is improved and inlightned by a continual u&s;e, and a long experience, and which in truth is to be found no where but in &s;tudents, practi&s;ers and Judges of the Civil Law onely.</P>
<P>And yet there has been a &s;trong conceit, taken up but lately, but yet very hotly pur&s;ued, to have the &s;ame take effect, by folliciting the &s;tate to make a Law to that purpo&s;e; that a cer|tain number of old experienced Merchants are much fitter and better enabled to &s;it upon the trial and examination of matters of forreign trade and negociation, and of bu&s;ine&s;s ari&s;ing upon or beyond the Sea, then any &s;tudents, graduats, or practi&s;ers in the Civil Law what&s;oever; &s;uppo&s;ing, that if the Court of Ad|miralty were turned into a Court of Merchants, both &s;ubjects and &s;trangers would be better &s;atisfied, and trade go on and thrive much better.</P>
<P>Which project &s;ome Merchants have been the more embol|dened to &s;et on foot, becau&s;e they once prevailed &s;o far, as to get an Act of Parliament to be made in the fourty third year of Queen <HI>Elizabeth,</HI> whereby all controver&s;ies that &s;hould from thenceforth ari&s;e upon any a&s;&s;urances made of any goods, mer|chandizes, &s;hips, and things adventured, are committed to the hearing and trial of &s;o many Judges, whereof the Civilians are fewe&s;t, and the Merchants make the greate&s;t number. They would have it conceived, that none has under&s;tanding or skill
<PB N="149" REF="82">enough to judge of the my &s;terie of their employment but them|&s;elves onely; and that it is equity and a good con&s;cience, in a mo&s;t &s;ummary and a compendious way, and not the intricate and long Maeanders of the Law, that is the fitte&s;t to arbitrate and decide their differences; crying out for a quick di&s;patch, that their voyages to Sea may not be ob&s;tructed. They are jealous withall, that the profe&s;&s;ion of the Law is but a de&s;ign to en|rich a company of men with the vexations and &s;poiles of others; grudging, that there &s;hould be a di&s;tinct profe&s;&s;ion made of the Law, which &s;ecures them&s;elves and all they have, when every Trade and Handicraft hath the like.</P>
<P>In which &s;ugge&s;tions if there could be imagined to be any either truth or &s;oundne&s;s, yet &s;ince the &s;ame may be made by o|ther trades and profe&s;&s;ions 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 a&s;&s;ign the Merchants onely Judges out of their own order, and not to grant the &s;ame privi|ledg to other Trade&s;men al&s;o. And yet to make a peculiar pro|vi&s;ion general, and to erect &s;o many Tribunals as there are Trades and callings, was never as yet accu&s;tomed or put in pra|cti&s;e by any Nation.</P>
<P>The Romans would not admit any Barterers or Traffiquers into the Camp, or to any place of honour in the Civil Govern|ment<NOTE N="z" PLACE="marg">L. <HI>12.</HI> Co. De Cobortat. <HI>1.</HI> vi<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">. Co. Negeciat. ne Militent.</NOTE> <HI>Paulus</HI><NOTE N="a" PLACE="marg">L. <HI>44.</HI> Dig. De aedilit. edict.</NOTE> gives the rea&s;on; <HI>Id genus hominum.</HI> &s;aith he, <HI>ad lucrum potius vel turpiter faciendum pronius e&s;t;</HI> That &s;ort of men are di&s;po&s;ed to gain, and unrighteous dealing. Saint <HI>Chry&s;o&s;tome</HI> &s;ayes no le&s;s, as <HI>Gratian</HI> cites him, <HI>ca. ejiciens. Di|&s;tinct.</HI> 88. <HI>Mercator &s;ine mendacio &amp; perjurio e&s;&s;e non pote&s;t;</HI> No Merchant can &s;ub&s;i&s;t without lying and perjury: And <HI>De|mo&s;thenes</HI><NOTE N="b" PLACE="marg">Orat: pro Phormione.</NOTE> makes it a miracle, <HI>&s;i idem mercator indu&s;trius vide|atur &amp; probus;</HI> if that man that is &s;edulous and intent upon Merchandizing, can be an hone&s;t man. And therefore the <HI>Thebans</HI> would not &s;uffer any man to bear any honourable of|fice in their Common-wealth, that had not quite given over Merchandizing for the &s;pace of ten years.<NOTE N="c" PLACE="marg">Ari&s;t. Polit. lib. <HI>3.</HI> ca. <HI>3.</HI> in fin.</NOTE> Surely their fear was, that when tho&s;e kind of men &s;tudied and endeavoured nothing el&s;e but ama&s;&s;ing of wealth and getting of riches, the Tribunal, if they &s;ate there, might become a Mart, and ju&s;tice be expo&s;ed to &s;ale.</P>
<PB N="150" REF="83">
<P>Be&s;ides, it is mo&s;t frequent and ordinary for a number of Merchants to joyn in copartner&s;hip together, and to employ one common and joynt &s;tock beyond the Seas, and yet few of the copartners known or taken notice of; &s;o that it may happen, that a Merchant, that &s;its on the judgment &s;eat, may be deep|ly concerned in the ca&s;e in que&s;tion, and be judge in his own ca&s;e, and yet his intere&s;t not &s;een or di&s;cerned.</P>
<P>Again, there is &s;uch a &s;pirit of oppo&s;ition reigns between the Merchant and the Mariner, who is as u&s;eful and &s;erviceable at &s;ea as the Merchant can po&s;&s;ibly pretend to be, that if the Merchant &s;hould &s;it to judge the Mariner, in time, the com|pany of poor Mariners might be &s;o &s;everely dealt with, and kept with &s;uch &s;hort wages by the Merchant, at who&s;e plea&s;ure and command he is, that he will not care to &s;erve, and &s;o naviga|tion may be quite lo&s;t.</P>
<P>Nay further, the controver&s;ies in the Admiralty are not be|tween 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 tho&s;e of their own Countrey and rank, and to oppre&s;s &s;trangers.</P>
<P>Moreover, what affinity is there between buying and &s;elling, (which is the onely skill of the Merchant) and judging of the nature and right of contracts, injuries, debts, agreements, of|fences, and other accidents and emergencies happening upon the Sea or in forreign parts, which they &s;o covet to gain unto them&s;elves? 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 &s;erious contemplation and a long &s;tudy, and per|fected by the practi&s;e of a mans whole life.</P>
<P>I write not this to deba&s;e the true worth nor to le&s;&s;en the re|pute of Merchants. They are a people that enrich the Nation as well as them&s;elves; and for the dangers they run through, both per&s;onal and real, they de&s;erve to have the highe&s;t immu|nities conferred on them. But let them keep within their own &s;phear, and not a&s;pire to &s;uch a function, which neither their breeding, capacity, or parts does enable them unto, nor their employment gives them lei&s;ure to di&s;charge.<NOTE N="d" PLACE="marg">Robert Rer. judicat. lib. <HI>2.</HI> ca. <HI>16.</HI></NOTE> And therefore
<PB N="151" REF="83">upon a &s;olemn debate, whether Merchants &s;hould be joyned to Civilians to try &s;uch matters, it was denied, and judg'd again&s;t in <HI>France,</HI> in the year 1584.</P>
<P>Be&s;ides, that it &s;hould be thought that men (who&s;e know|ledge of the Law and skill to do right and ju&s;tice is no greater, then bare nature and their illiterate education has affoorded them) &s;hould be able to do it quicker, and at le&s;s charge to tho&s;e that &s;eek it, then tho&s;e that have made it their whole &s;tu|dy and employment, is to me an imagination &s;trange and be|yond belief; for unque&s;tionably the skilful and expert Judge, that by his &s;tudy and practi&s;e is accu&s;tomed to &s;uch bu&s;ine&s;s, as he does be&s;t under&s;tand it, &s;o he mu&s;t needs &s;oone&s;t di&s;patch it al&s;o. Becau&s;e cu&s;tome and knowledge hath made all things of that nature obvious and ea&s;ie to him; and &s;uch a judge will not allow any thing to be &s;poken impertinently and be&s;ide the matter in que&s;tion; and &s;o a multitude of bu&s;ine&s;s goes off quicke&s;t under him, and both delay and much charge is avoid|ed. But when they come to judge thereof, who never medi|tated or dealt in &s;uch things, it mu&s;t needs be, that they mu&s;t run into many impertinent que&s;tions, and that they mu&s;t toyle and perplex them&s;elves to under&s;tand the true point in i&s;&s;ue; meeting every where with knots and difficulties, and &s;carce any thing that is ea&s;ie &amp; clear to them; wherby they cannot without long and frequent debates and much time &s;pent re&s;olve any ea&s;e in que&s;tion. 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 bu&s;ine&s;s, before any comes to be judg'd, the attendance, I am &s;ure, is mo&s;t tedious, and the charge intollerable: &s;o that to put the Maritime and forreign affairs to be judg'd by Merchants, is to augment delay and charge, rather then to le&s;&s;en either.</P>
<P>In like manner, tho&s;e that &s;tudy and profe&s;s onely the Law of their own Countrey, (which as I &s;aid before, is commonly but of narrow extent, and &s;erves but for a few particular occa&s;ions onely) may be as ju&s;tly deemed incapable to judge and &s;it upon triall of &s;uch matters (though they do concern the di&s;pen&s;ing of Law and ju&s;tice too) wherein the Municipal Law is &s;ilent, and has made no provi&s;ion at all; or peradventure is not capable
<PB N="152" REF="84">to make any determination in them; as when they fall out up|on the main and open Sea, or in a forreign State, or are contro|ver&s;ies ari&s;ing between two &s;everal Nations, or their &s;ubjects, to which no Municipal Law can be applied. In brief, where the Laws &s;tand di&s;tinct, and the profe&s;&s;ions thereof di&s;tinct al&s;o, the exerci&s;e of them ought not to be confounded by the ones thru&s;ting into the others function and calling. And therefore much le&s;s rea&s;on have they to prohibit the Civilians, who have the knowledge, the triall of tho&s;e ca&s;es; and a&s;&s;ume it to them|&s;elves who have it not.</P>
<P>Hereupon therefore we &s;ay it is, that though every Nation has Laws and Statutes of their own, proper for their affairs and people, and tho&s;e within their &s;everal confines, &s;o far as they do pre&s;cribe, have the preeminence above any other Law or rea&s;on in the world, as has been &s;aid before: Yet there is no forreign Nation in the World, that has a di&s;tinct &s;tudy and pro|fe&s;&s;ion of the Municipal Law of the Nation, apart and divided from the Roman Civil Law: neither are there any where el&s;e &s;tudents and profe&s;&s;ours of any Municipal Law di&s;tinctly &s;o cal|led and dignified, as there are in <HI>England.</HI> But the &s;tudy and profe&s;&s;ion of Law that is to be found in the other parts of the World, and is &s;erviceable for the government of the Civil State, is the &s;tudy and profe&s;sion of the Roman Civil Law onely.</P>
<P>All which, and what&s;oever el&s;e we &s;hall &s;ay hereafter to the &s;ame purpo&s;e, we would have under&s;tood as humble propo&s;als onely, to be con&s;idered of in order to a future &s;ettlement which we hope and long for. But if the Authority of this Nation (who be&s;t can judge what is fitte&s;t for the people, and what &s;uits be&s;t with the pre&s;ent Government) &s;hall in the end commit and di&s;po&s;e of tho&s;e Trials which formerly did belong to the pro|fe&s;sion of the Civil Law, into the hands of others, that do not partake of that excellent knowledge; it does behove all per|&s;ons to &s;it down &s;atisfied therewith, and to &s;ubmit unto it, with|out any murmuring or di&s;puting; for I do greatly approve of that golden &s;aying of the Civil Law.<NOTE N="e" PLACE="marg"><HI>L<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> 3.</HI> Co. De grim. &s;acrileg.</NOTE> <HI>Disputare de principali judicio non oportet. Sacrilegii enim in&s;tar est, dubitare an is dig|nus &s;it quem Imperator elegerit;</HI> No man ought to que&s;tion that which the &s;upreme Magi&s;trate has once decided. For it is a
<PB N="153" REF="84">kind of &s;acriledg, to doubt of that per&s;ons merit, whom the highe&s;t magi&s;trate by his immediate election has thought fit to dignifie.</P>
</DIV2>
<DIV2 N="8" TYPE="chapter">
<HEAD>CHAP. VIII.</HEAD>
<ARGUMENT>
<P>The rea&s;ons are &s;trong and weighty, upon which &s;o many forreign States do direct and order the bu|&s;ine&s;s of their Tribunals mo&s;t by the prae&s;cript, rea&s;on, and equity of the Civil Law.</P>
</ARGUMENT>
<P>IT is from the Roman Civil Law that the &s;tudents in forreign Nations do derive their fir&s;t principles of Law and ju&s;tice, and in this are all publick Lectures read and degrees taken, and not in any Municipal Law.</P>
<P>Yet it is true, that before they practi&s;e or &s;it in places of Ju|dicature, they read and throughly inform them&s;elves in the Laws of their own Countrey; by which, where there is po&s;i|tive and expre&s;s con&s;titution in the point, their pleadings and judgments mu&s;t be directed wholly. But in ca&s;es where there is none, as the ca&s;es be but few where there is, in compari&s;on of tho&s;e where there is not; or where that which is, is either in &s;en&s;e ambiguous, or in words ob&s;cure, and mu&s;t be interpre|ted; or where no Municipal Law can be of any force or u&s;e at all, as in the ca&s;es above &s;pecified, there they generally make the Civil Law, or the rea&s;on thereof, their onely rule and guide, to admini&s;ter right and ju&s;tice by both to their own people, and to forreigners al&s;o.</P>
<P>To this they are led by divers nece&s;&s;ary and mo&s;t important rea&s;ons.</P>
<P>Fir&s;t, for them to do &s;o, is but an&s;werable to their education, as they are all Civilians, and to tho&s;e principles which their learning hath ingrafted in them: For &s;ince they have been bred and di&s;ciplined under it, it is no wonder if their judgments and
<PB N="154" REF="85">re&s;ults be &s;teered by it: it being natural, that waters &s;hould have the true reli&s;h of the fountain from whence they flow. And therefore when the learned of that profe&s;&s;ion &s;ate in di|vers Judicatories of <HI>England,</HI> di&s;tribution of ju&s;tice was ever af|ter the &s;ame rules in &s;uch ca&s;es, wherein no &s;pecial Law was, or could be made to guide them.</P>
<P>Secondly, it cannot be devi&s;ed, how &s;uch ca&s;es as neither the Law nor the cu&s;tome of the place has &s;pecially provided in, can be well under&s;tood, and receive a true and right judgment, with|out the help of that profe&s;&s;ion. All other learning be&s;ides that is taken up in the con&s;ideration of things that are clean of ano|ther nature; and does not con&s;ider what dealings there are be|tween man and man, &s;ubjects and forreigners; and what ju|&s;tice and equity does require in each of them, as that ex|actly doth.</P>
<P>As for vulgar and common rea&s;on, it is of u&s;e in matters that are obvious to &s;en&s;e, and to the fir&s;t apprehen&s;ion, and which are mini&s;terial to the maintaining of life and livelyhood. But where the di&s;cur&s;ive faculty mu&s;t be employed, and great rea&s;oning and a long experience is required, as in the things we now &s;peak of, ordinary rea&s;on, if we pre&s;ume upon it, will &s;ooner lead us into errour, then be any advantage towards a &s;olid and right judgment. Nay, &s;o unable are the common ca|pacities to di&s;cern and judge of them, that it is u&s;ual for the Judges of the Law them&s;elves to be at a &s;tand, and to &s;pend &s;ome time in &s;tudy and coun&s;el, ere they can re&s;olve &s;ome que&s;tions that do ari&s;e; &s;o intricate and perplexed are they.</P>
<P>Thirdly, it is the nature and practice of all States and people, be&s;ides their own proper Laws, to u&s;e &s;uch as are common to all other Nations and men, and &s;o no &s;trange thing to cheri&s;h two Laws in one Common-wealth, as &s;ome do too vainly ima|gine. <HI>Omnes populi, qui legibus &amp; moribus reguntur, partim &s;uo proprio, partim communi omnium hominum jure utuntur,</HI> &s;ayes <HI>Gaius;</HI><NOTE N="f" PLACE="marg"><HI>L. 9.</HI> Dig. De ju&s;t. &amp; jur.</NOTE> and <HI>Ju&s;tinian:</HI><NOTE N="g" PLACE="marg">Parag. <HI>1.</HI> In&s;t. Deju. nat. gent. &amp; civ.</NOTE> All people that are guided by any Law or cu&s;tome at all, are guided by a Law common to others, as well as by that that is peculiar to them&s;elves; for if the Law of a Nation be not univer&s;al enough (as indeed none is) but that in the mini&s;tration of ju&s;tice there will every day ari&s;e
<PB N="155" REF="85">&s;uch que&s;tions, which the particular Law has not touch'd upon; if there be not &s;ome other Law to flie to, there mu&s;t nece&s;&s;ari|ly en&s;ue either a failer of ju&s;tice as to tho&s;e ca&s;es, which would draw on a &s;elf-revenge; or el&s;e the &s;etling them mu&s;t be arbi|trary and at will, which a people will not long endure.</P>
<P>Be&s;ides, there is no Nation in the World, that abounds with all things. There is no people &s;o well fortified, but that they may &s;tand in need of the a&s;si&s;tance of others, either in matter of commerce, or to joyn in oppo&s;ing a common enemy, who watches to de&s;troy them both. When as therefore the implo|ring of this forreign help, or the tran&s;portation of our native commodities to tho&s;e that can &s;upply us with theirs, which we have not, drives us to a nece&s;sity of dealing with other people; it is &s;ub&s;tantially needfull al&s;o to order &s;uch dealings by, to have &s;ome Law or rules generally known, and unque&s;tionably ju&s;t to both.</P>
<P>There being therefore a nece&s;sity of another Law, be&s;ides the particular Law of each Countrey, the Civil Law has been cho&s;en by mo&s;t forreign States, becau&s;e it has from the time of the Romans run through all Nations, and has been &s;o gene|rally applauded and allowed of by all, that now at la&s;t it has purcha&s;ed to it &s;elf the honour to be &s;tyled, <HI>Jus Gentium,</HI> the Law of Nations, or <HI>jus commune,</HI> the common Law of all <HI>Europe,</HI> becau&s;e it hath more in it of the Law of Nature, that is com|mon to all mankind, then any other Law of Man.</P>
<P>Fourthly, the Civil Law is of &s;uch large extent, and &s;o va&s;t a comprehen&s;ion, that nothing can fall out, wherein the mini|&s;tration of Law, equity, or any part of ju&s;tice may be nece&s;&s;ary, which either the words of that Law, or the rea&s;on thereof will not decide: For indeed the Romans, through the Univer&s;al power they had over a great part of the World, and their con|ver&s;ing &s;everal wayes with the re&s;t, were brought acquainted with the nature and &s;tate of all Humane affairs of what kind &s;o|ever.</P>
<P>Fifthly, it provides not for the welfare and intere&s;t 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 ari&s;ing between one State and another,
<PB N="156" REF="86">of the Laws of war and articles of peace, of leagues, truces, re|prizals, rights and priviledges of Emba&s;&s;adours, and redemp|tion of pri&s;oners; of precedencies due to Princes; of the free|dome of trade to forreiguers, and of the re&s;traint thereof upon ju&s;t and weighty rea&s;ons; of the free and common u&s;e of the Sea, and how it may be interdicted or limited; of all contracts in and about &s;hipping or tran&s;portation; of da|mages or injuries done at Sea; of Cu&s;tomes, Wrecks, Pyra|cies, Salvage, or contribution; of a&s;&s;urances made upon &s;hips or goods; of the carrying of Armes, Money, or Men, to fur|ni&s;h or &s;trengthen our enemies; of the conditions given for the &s;urrendring be&s;ieged places, by whom they may be effectually made, and how far they may be extended; whether change of governour and government can di&s;&s;olve amity, friend&s;hip and re&s;pect between us and other States. The&s;e and &s;uch like are matters of concernment to other States as well as to our &s;elves, and are not medled with by Municipal Laws, but fall under the learning of the Civil Law onely; whereby it mu&s;t needs be ac|counted a mo&s;t noble and u&s;efull &s;cience, the profit thereof be|ing not confin'd to one Territory, but communicable to the whole &s;ociety of Men.</P>
<P>Sixthly, the precepts and rules of this Law are but the di|ctates of natural rea&s;on, and which command the a&s;&s;ent and approbation of the mo&s;t judicious, when fir&s;t propounded. And &s;o &s;atisfactory and convincing is the ju&s;tice thereof both to &s;ubjects and &s;trangers of other Nations, that it &s;ilenceth the complaints of tho&s;e, who are thereby condemned, their own rea&s;on and con&s;ciou&s;ne&s;s concurring in that condemnation.</P>
<P>Seventhly, it is the u&s;e of the Civil Law that holds up the entercour&s;e and corre&s;pondence of nations each with other; for where the rules of judging controver&s;ies, as oft as they do ari&s;e, are certainly known and allowed of, there any Prince or people will be &s;trongly invited to Trade, make Leagues, inter|marry, &s;end their Emba&s;&s;adours, and communicate all other offices of love and friend&s;hip what&s;oever: becau&s;e they know what dealing they &s;hall have from them, and what ju&s;tice to ex|pect at their hands. But where <HI>illud ju&s;tum e&s;t quod e&s;t utile,</HI> that is, where advantage does rather &s;et the rule for ju&s;tice then
<PB N="157" REF="86">right rea&s;on; or where it mu&s;t be admini&s;tred by pre&s;criptions of their own devi&s;ing, which none can di&s;cern any equity or rea&s;on in, nor under&s;tand but them&s;elves, &s;uch a Nation mu&s;t make much of them&s;elves, and be contented to &s;ub&s;i&s;t of what they have of their own; for no other Prince or people will ad|venture to deal or corre&s;pond with them.</P>
<P>Eighthly, tho&s;e that are the compo&s;ers of this Law, in the ordaining thereof had not, as is u&s;uall in the making of other Laws, the advantages of State in their eye, nor the honour and greatne&s;s of tho&s;e that had the government, nor any meerly po|litick con&s;iderations what&s;oever; much le&s;&s;e did they look at the particular benefit of any private men. But as in publick mat|ters <HI>&s;alus populi</HI> was <HI>&s;uprema lex,</HI> &s;o in private, <HI>quod aequum bo|num&abque; fuit,</HI> was that which made up the Law with them; the di&s;|pen&s;ation of true right and pure equity was thought the mo&s;t effectuall means to pre&s;erve the whole. And hence it is, that the &s;incere equity of the Roman Civil Law has been owned, and the wi&s;dome of it greatly admired by tho&s;e, to whom the exi|gencies of the Roman State, and the intere&s;t of the Rulers of it could not be known.</P>
<P>Ninthly, this Law is &s;o well tempered, and &s;o indifferently compo&s;ed, that it may be accommodated to any kind or form of government; &s;o that be the Supreme power in one, or be it in few, or be it in the whole people, it is equally u&s;eful for them all: for <HI>Rome</HI> came under all the&s;e &s;everall formes of go|vernment, and &s;ome part of the Civil Law was made under each of them.</P>
<P>La&s;tly, Triall, that is the true Touch&s;tone of Laws as of all things el&s;e what&s;oever, has exalted it above all other Laws of Man. Fir&s;t, in the general u&s;e of it every where about the World. Secondly, in the continuance of it to this pre&s;ent time, after the State and Government of <HI>Rome</HI> has long ago cea&s;ed to be, and again&s;t all &s;tormes and tempe&s;ts that have come. Thirdly, in that all States and Common-wealths have exceedingly flouri&s;h|ed, that have made u&s;e thereof.</P>
<P>And yet we are not &s;uch vain exalters of our own pro|fe&s;&s;ion, as to think, or boa&s;t, that the Civil Law has the force or property of a Law within it, &s;o as to pre&s;cribe to or bind forreign Nations.<NOTE N="h" PLACE="marg">Leges non alle|gantur in curi<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">s Principum aut regum pro au|thoritate, &s;ed proration<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> &s;ui. Ja&s;. in l. <HI>19.</HI> co. de Collat. nu. <HI>10.</HI> Non quia &s;unt leges Imperato|rum; &s;ed quia &s;um natu<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">les &amp; bonae; non quia lex h<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"> di|cat, &s;ed quia Re|tio &s;ic vult. <HI>Ba<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">d.</HI> in l. 13. co. De&s;ent. &amp; interloc. on<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters"> judic.</NOTE> But we rather &s;ay, by any authority
<PB N="158" REF="87">of its own, it commands and nece&s;&s;itates no where, and yet (as rea&s;on mu&s;t alwayes prevaile with men that are rational) it in|formes, illuminates, and per&s;wades every where. We &s;ay this further, that though in matters of publick government the Mu|nicipal Law bears &s;way, and is practi&s;ed altogether in every Na|tion: for tho&s;e mu&s;t be managed by &s;uch prudent wayes and means, as the &s;upreme Governours from time to time &s;hall think mo&s;t nece&s;&s;ary; without being tied up to any certain rules even of their own, much le&s;s to any of the Roman Empire: yet in private controver&s;ial things, ari&s;ing between man and man, &s;ome &s;pecial matters of more publick and general concernment excepted, the Civil Law is much more practi&s;ed and more fre|quently u&s;ed, then the Municipal. Becau&s;e in re&s;pect of the great variety and multitude of &s;uch ca&s;es, the Municipal Law can declare but little that is certain in them: So that though we cannot &s;ay, that forreign States are governed by the Civil Law, yet the &s;uits and differences their &s;ubjects have one with another, are for the mo&s;t part judg'd and ended by it. But the admittance of the Civil Law in the&s;e ca&s;es, how general &s;o|ever they be, is voluntary and free, without either nece&s;&s;ity or con&s;traint.</P>
<P>And we do &s;o little think, that the want of a compul&s;ive and binding power does in any part ob&s;cure the lu&s;tre of it, as in our judgments that very con&s;ideration does commend it much more, and makes the merit of it much more con&s;picuous and &s;plendid; for to be awed by an impo&s;ed Law, argues the &s;upe|riority of the power that impo&s;es it, and the &s;ervility and &s;ubje|ction of the people that are under it, but no worth and excellency in the Law it &s;elfe: for peradventure if they were left to their full freedome, they would chu&s;e to live under &s;ome more natural and more rea&s;onable Law. But when a Prince and people &s;hall of their own accord without direction or command from any other, freely embrace a Law, and de&s;ire to be tried and judg'd thereby (as forreign States do by the Ci|vil Law) it is an evident token, that this free a&s;&s;uming of &s;uch a Law, proceeds from &s;ome known &s;ingular vertue and rare good|ne&s;s that is in it; for el&s;e they would not, being at liberty, be &s;o unanimou&s;ly guided and directed by the &s;ame.</P>
</DIV2>
<DIV2 N="9" TYPE="chapter">
<PB N="159" REF="87">
<HEAD>CHAP. IX.</HEAD>
<ARGUMENT>
<P>The admittance and &s;way of the Civil Law in forreign parts, is yet further verified by the te&s;timonies of Sir <HI>Tho. Smith,</HI> and Dr <HI>Hakewill,</HI> the one a State&s;|man, the other a famous learned Divine of our own, and by &s;ome other remarkable institutions within this Nation.</P>
</ARGUMENT>
<P>I Have before told you, what a great and renowned King of this Nation, and five great Sages of the National Law have &s;aid concerning the fame and practi&s;e of the Civil Law in for|reign Nations. I connot pa&s;s by what Sir <HI>Tho. Smith,</HI> a mo&s;t famous Scholar and State&s;-man of this Nation, and one who in Queen <HI>Elizabeths</HI> time went Emba&s;&s;adour to the King of <HI>France,</HI> and &s;o had the opportunity to know more of this mat|ter then tho&s;e that &s;it at home, has written <HI>obiter</HI> to the very &s;ame purpo&s;e, in his book <HI>De Republica Anglorum.</HI> Wherein after he has delineated and &s;et forth the true &s;tate 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 ob&s;erve and follow, in his third book, ca. 11. he clo&s;es in this manner. <HI>Admini&s;trationis &amp; Politiae Anglica|nae formam qua&s;i in tabula breviter vobis ad intuendum propo&s;ui; Quid &s;uum habeat, quidque ab aliis rebu&s;publicis, Gallorum, Ita|lorum, Hispanorum, Germanorum, diver&s;um, quae civilibus legibus Romanorum in Pandectas &amp; Codicem &agrave; Ju&s;tiniano redactis reguntur, enarravi.</HI> The form of Policy and government of <HI>England,</HI> &s;aith he, I have as it were in a Map briefly &s;et down before you to be &s;een, what it has proper to it &s;elf, and what differing from other Common-wealths, to wit, of <HI>France, Ita|ly, Spain, Germany,</HI> which, &s;aith he, are &s;wayed by tho&s;e Civil Laws of the Romans, that <HI>Ju&s;tinian</HI> did put into the Di|ge&s;ts and the Code, I have likewi&s;e &s;hewed you.</P>
<PB N="160" REF="88">
<P>The te&s;timony al&s;o of Dr <HI>Hakewill,</HI> a great Divine of this Countrey al&s;o, is as full to the &s;ame matter; for in his learn|ned Apologie of the power and providence of God,<NOTE N="i" PLACE="marg">Lib. <HI>3.</HI> ca. <HI>7.</HI> &s;ect. <HI>3.</HI></NOTE> he does not onely rank the Civil Law next to the Law of God, but al&s;o avows the profe&s;&s;ours thereof in &s;ome forreign parts to be gene|rally better &s;cholars then their Divines; and the Lawyers of this la&s;t 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 rea&s;on to be, the great &s;way, intere&s;t and employ|ment, which they have had in the Judicial Courts of Chri&s;ten|dome, that has given them &s;uch encouragement. Next Gods Laws, &s;aith he, tho&s;e of the Empire &s;eem to challenge their place; howbeit with us, having neither that reward nor em|ployment as they de&s;erve, they have lo&s;t both their rank and dignity: but in forreign parts, where they are cheri&s;hed and honoured, they marvellou&s;ly flouri&s;h; in&s;omuch as in &s;ome tran&s;|marine Kingdomes their Lawyers are held, and for the mo&s;t part are undoubtedly more &s;ufficient Scholars then their Di|vines; and within this la&s;t Centenary, much more &s;ufficient then the writers and profe&s;&s;ours of the &s;ame faculty in many precedent ages, as well in that part which is profe&s;&s;ed in Schools, as the practick expre&s;&s;ed in judgments and pleadings. Now for the latter part, which is the practick, &s;aith he, it may ea&s;ily be evidenced to any who will be plea&s;ed to look into it, that by the ob&s;ervations, experience, paines, and learning of the Lawyers of tho&s;e latter ages, it is grown to much more ex|actne&s;s and perfection then former ages had. Which appears by the judgments, deci&s;ions, arre&s;ts, and pleadings of the high|e&s;t Courts of the greate&s;t part of the Chri&s;tian Nations, which are extant in great numbers; as the Deci&s;ions of the &s;everal Rotes of <HI>Italy,</HI> at <HI>Rome,</HI> at <HI>Naples,</HI> at <HI>Florence,</HI> at <HI>Genoa,</HI> at <HI>Bononia,</HI> at <HI>Mantua,</HI> and <HI>Peru&s;ium,</HI> and the re&s;t: the judg|ments of the Imperial Chamber at <HI>Spire,</HI> which is the la&s;t re|&s;ort of the German Nation; and the arre&s;ts of the &s;everal Courts of Parliament in <HI>France,</HI> as <HI>Paris, Aiz, Burdeaux, Gre|noble,</HI> and the re&s;t. To which may be added the pleadings of Mon&s;ieur <HI>Servine,</HI> the French Kings Advocate, and others of that nature, which are all publi&s;hed and extant, partly in Latin,
<PB N="161" REF="88">and partly in their own Languages, with that variety and learn|ing, as much exceeds the former ages.</P>
<P>But to pa&s;s from what is ob&s;erved by our own Countrey-men in this particular, is not there an ancient in&s;titution of <HI>England,</HI> that does clearly demon&s;trate the &s;ame thing? for if we were not &s;ure that the Civil Law did pa&s;s for currant, and were ge|nerally embraced in forreign parts, why &s;hould we alwayes to this very day ob&s;erve to try and decide all differences, that ari&s;e between our own Countrey-men and Strangers either upon or beyond the Sea, in the Court of Admiralty; where the pro|ceedings are onely after the forme of the Civil Law? And were it not to plea&s;e forreigners in the Law they like and allow of, we might when we had them here, &s;trictly hold them to our own Laws. But &s;ince we mu&s;t trade and traffick with them, it were no indifferency to call them from the trial of that Law which they in &s;ome part know, and is the Law of their Coun|trey, as them&s;elves make it, to the trial of a Law which they know in no part, and is meer forreign unto them.</P>
<P>Likewi&s;e, if the Treaties that we have had with forreign Princes were &s;urveyed, it would be found, that they run in the language, and are tran&s;acted by the skill and knowledge of the &s;ame Law. It is evident therefore, that it is u&s;ed and accepted of every where upon and beyond the &s;eas; &s;ince that where we deal with &s;trangers mo&s;t, and have mo&s;t variance with them, there it is mo&s;t u&s;ed even among&s;t our &s;elves:</P>
<P>And to the &s;ame ground and rea&s;on does Mr <HI>Selden</HI> in his di&s;cour&s;e upon <HI>Fleta</HI><NOTE N="k" PLACE="marg">Ca. <HI>8.</HI> parag. <HI><GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">.</HI></NOTE> impute it, that the practi&s;e of the Civil Law has been continued alwayes in the Mar&s;hals Court here in <HI>England,</HI> where divers cau&s;es might ari&s;e, that might concern &s;trangers; as al&s;o in the Judiciall Courts in both Univer&s;ities, where &s;trangers for &s;tudy &s;ake do fre|quently come to &s;ettle: though for my part I cannot think, that the Univer&s;ities u&s;e it for any other rea&s;on, then for the pure natural equity and &s;ound rea&s;on that is in it above all the Laws in the World be&s;ides; nor for any other end, then that young men trained up and made expert in that profe&s;&s;ion, when they come abroad, might be more ready in all matters of ne|gotiation and commerce, that the Prince or State &s;hould in
<PB N="162" REF="89">their dealing with forreign Nations have occa&s;ion to u&s;e them in, when ever they were call'd to any &s;uch imployment; to which the Laws of this Land &s;erve nothing at all.</P>
<P>It is needle&s;s in &s;o clear a matter to offer any further proof to convince our Countrey-men, that all their neighbours beyond the Seas (that are neverthele&s;s wi&s;e, rich, and potent) do &s;uf|fer them&s;elves to be judg'd and directed by the Civil Law and the profe&s;&s;ours of it. I &s;hall therefore as touching this par|ticular add but two things, which in my judgment are very well worth the ob&s;ervation.</P>
<P>The fir&s;t is, that <HI>Ju&s;tinians</HI> Code (which is a collection of the Emperours Laws onely, from the dayes of <HI>Adrian</HI> unto the age of <HI>Ju&s;tinian</HI> him&s;elf) is in u&s;e even among&s;t the Turkes.<NOTE N="l" PLACE="marg">Stephan. Pro|<GAP DESC="illegible" RESP="UOM" EXTENT="2 letters">m. in Novel. <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">u, <HI>64.</HI></NOTE> In order to which it was, as Mr <HI>Selden</HI> &s;aith in his di&s;cour&s;e upon <HI>Fleta;</HI><NOTE N="m" PLACE="marg">Ca. <HI>5</HI> parag. <HI>5.</HI></NOTE> that Mahomet the &s;econd, but the fir&s;t Emperour of the Turkes &s;o called, when he had won <HI>Con&s;tantinople</HI> from the Chri&s;tians, he commanded <HI>Maximus</HI> the Patriarch with other books to tran&s;late al&s;o into Arabick <GAP DESC="foreign">, that is, the Imperial Codes, which was done; <HI>in futu|rum, ut videtur, Mahumedici imperii u&s;um,</HI> &s;ayes Mr <HI>Selden;</HI> that is, to be u&s;eful for the Turki&s;h Empire.</P>
<P>The &s;econd is, that even in the territory of the Church, where the patrimony and the juri&s;diction of the Popes lieth, this Law has in &s;ome ca&s;es an intere&s;t of guidance in the Tribunals there too. And yet if the precious worth that is in it, did not cap|tivate them, there are not forcible and weighty rea&s;ons want|ing to make them abhor and decline the &s;ame: For,</P>
<P>Fir&s;t, &s;ome of the Chri&s;tian Roman Emperours, as <HI>Con&s;tan|tine, Theodo&s;ius, Martian,</HI> and <HI>Ju&s;tinian,</HI> did ordaine divers Laws for the ordering of Church-matters and Church-men, which &s;ince the Popes look'd upon as an u&s;urpation, and an in|croachment upon their &s;piritual juri&s;diction, Temporal Princes being the di&s;po&s;ers of temporal things onely, as they &s;uppo&s;e, and not to meddle with &s;piritual; it might well beget in them an animo&s;ity and di&s;like again&s;t the Law it &s;elf.</P>
<P>Secondly, the Church has a large Law of their own, the Ca|non Law; and &s;o large, that it may be thought &s;ufficient to &s;et a rule to all that Churches affairs what&s;oever, and need not bor|row help from any other Law.</P>
<PB N="163" REF="89">
<P>Thirdly, there has alwayes been as it were an emulous con|tention, which of the&s;e two Laws &s;hould be the mo&s;t potent, and &s;pread furthe&s;t in the Chri&s;tian World.</P>
<P>Fourthly, the Popes in the&s;e latter ages have not &s;tuck to make open prote&s;tation, that the Pontificial dignity was rather to give Laws to the Emperours, then receive any from them.</P>
<P>And are not the&s;e, if there were no other, grounds enough to make them tender how they admitted the Civil Law into their Territories? yet &s;uch has been the power and &s;orce of that Law, that it has got footing even in that Spiritual Monarchy; for where &s;in again&s;t God comes not to be re&s;trained, or puni|&s;hed, nor the &s;oul and con&s;cience di&s;ciplined in order to its &s;pi|ritual welfare (which was the main end of ordaining the Canon Law) but that the ca&s;e is meerly temporal and worldly, and not decided by the Canon Law, there the Civil Law gives the rule even in the Popes dominions; <HI>non vi &s;ua,</HI> &s;ayes <HI>Suarez,</HI><NOTE N="n" PLACE="marg">De legib. lib. <HI>3.</HI> ca. <HI>8.</HI> nu. <HI>3.</HI></NOTE> <HI>&s;ed quia Pontifices ita voluerunt,</HI> not that it has any authorita|tive power there inherent in it &s;elf, but as the Popes have freely entertained the &s;ame. Nay, <HI>Maranta</HI> in his <HI>Speculum,</HI><NOTE N="o" PLACE="marg">Part. <HI>3.</HI> nu. <HI>76.</HI></NOTE> adds further, and he cites <HI>Feline,</HI> a great Canoni&s;t for it; That if the Canon Law has declared it &s;elf in the ca&s;e, but is too &s;trict and rigid, and the Civil Law be more fair and equitable, the Civil Law &s;hall be rather followed in that ca&s;e, even in the Churches territory, then the Canon Law it &s;elf.</P>
<P>And indeed &s;etting a&s;ide &s;ome few &s;pecial differences be|tween the Civil Law and the Canon as to &s;ome particulars, the Canon Law is nothing el&s;e but the Civil Law applied to the u&s;e of the Church and Church matters. And &s;uch a conformity there is between them, that <HI>Rebuffus</HI><NOTE N="p" PLACE="marg">De Nominat. quae&s;t. <HI>5.</HI> nu. <HI>14.</HI></NOTE> &s;ayes, the Canon Law is but <HI>Medulla legum &amp; practica juris civilis;</HI> the marrow and &s;ub&s;tance of the Civil Law, and the practical application of it to ca&s;es in fact ari&s;ing. And <HI>Cuiacius</HI> plainly averreth,<NOTE N="p" PLACE="marg">Ca. <HI>15.</HI> De &s;ent. &amp; re judic.</NOTE> that the Canon Law <HI>fere omnia &s;ump&s;it ex jure Civili, &amp; omnino quic|quid praeclarum e&s;t in hoc jure, ex jure Civili e&s;t, nec hujus inter|pres idoneus qui&s;quam, ni&s;i &s;it juris Civilis periti&s;&s;imus;</HI> it is al|mo&s;t wholly taken out of the Civil, but undoubtedly what&s;o|ever is excellent in it, it has borrowed from the Civil Law, nei|ther can any one throughly under&s;tand the Canon Law, that is not fir&s;t perfectly skill'd in the Civil.</P>
<PB N="164" REF="90">
<P>This is not &s;o truly averred of the Canon Law, but the &s;ame may be as ju&s;tly affirmed of the particular Law of every Nation that is any thing famous either for Laws or Government. For undoubtedly, the be&s;t 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 judiciou&s;ly clear the ob&s;cure meaning &amp; doubtful &s;en&s;e of their own Laws, without they make u&s;e of the learning of the Civil Law, from whence they &s;prang originally, for a help to interpret them. And therefore which of them &s;oever does ca&s;t out of their Territories the Civil Law, they do plainly put out the light of their own Laws, and do abandon and exile that Mo|ther, of which their own Laws, for &s;o much as is good in them, are but the off-&s;pring; &s;ince by the te&s;timony of <HI>Claudian</HI><NOTE N="r" PLACE="marg">De leudib. Stilicon. lib. <HI>3.</HI></NOTE> <HI>Rome</HI> was,
<Q><L>Armorum legum&abque; parens, quae fundit in omnes</L>
<L>Imperium, primi&abque; dedit cunabula Juris.</L></Q></P>
</DIV2>
<DIV2 N="10" TYPE="chapter">
<HEAD>CHAP. X.</HEAD>
<ARGUMENT>
<P>The general name of <HI>Jus Civile,</HI> The Civil Law, is &s;ig|nally for Honours &s;ake peculiarly a&s;cribed to the Ro|man Civil Law, and to no other Law.</P>
</ARGUMENT>
<P>AMong&s;t other notes and characters of Honour, that Nations have be&s;towed upon the Roman Law, this is not the lea&s;t; That it bears to this very day that name and &s;tyle, which not only di&s;tingui&s;hes it from the Laws of other Nations, but in a way of eminenty extols and &s;ets it above them all: for although from that which every City, Countrey, or Na|tion does ob&s;erve for their binding Law, is derived that particu|lar appellation of the Civil Law of that particular place; as the Municipal Law of <HI>England, France,</HI> or <HI>Spain,</HI> may be called The Civil Law of <HI>England, France,</HI> or <HI>Spain:</HI> yet he that is to mention
<PB N="165" REF="90">the Municipal Law of any one Countrey or Nation, be&s;ides the Roman, if he would expre&s;s it by the name of the Civil Law, he will not be under&s;tood, except he adds the proper name of that Countrey too, whereof he intends to &s;peak.</P>
<P>But the common u&s;e of &s;peaking &s;till to this very day ob&s;er|ved by the be&s;t and greate&s;t Nations, is clean otherwi&s;e, as oft as mention is to be made of the Law of the Roman State; for albe|it you may call it, <HI>The Civil Law of the Romans,</HI> yet does it pa&s;s currently under the &s;imple denomination of <HI>The Civil Law;</HI> and you are intended to &s;peak of that peculiar Law, though you do not &s;ubjoyn the proper name of that &s;tate or people. <HI>Ju&s;tinian</HI> the Roman Emperour did fir&s;t enact it as a Law and as a binding direction to the Roman people; <HI>Quoties non addimus nomen, cujus &s;it civitatis, no&s;trum ju<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter"> &s;ignificamus;</HI><NOTE N="&s;" PLACE="marg">Parag. <HI><GAP DESC="illegible" RESP="UOM" EXTENT="1 word">.</HI> In&s;t. De ju. nat. gent. &amp; <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">iv.</NOTE> As often as we &s;ay, <HI>The Civil Law,</HI> 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 &s;uch people as are not &s;ubject to the Imperial Law.</P>
<P>And it is a &s;ure token of a &s;uperlative excellency, when a ge|neral appellation that is common to all things of the &s;ame rank and quality, is &s;pecially and by common con&s;ent be&s;towed upon one peculiar thing of the &s;ame kind. What was the rea&s;on that <HI>Rome</HI> was call'd, <HI>The City,</HI> when there was &s;uch a multi|tude of Cities be&s;ides it, but becau&s;e none came near it in power, greatne&s;s, riches, or magnificence? Or that <HI>Ari&s;totl&eacute;,</HI> when there were &s;o many known Philo&s;ophers be&s;ides, &s;hould be &s;ig|nally named, <HI>The Philo&s;opher,</HI> but becau&s;e the re&s;t knew not the true e&s;&s;ence of things &s;o well as he, nor had dived &s;o deeply into the &s;ecrets of nature as he had done? Or that <HI>Virgil</HI> &s;hould be &s;tyled the Poet among&s;t the Latines, and <HI>Homer</HI> among&s;t the Greeks, amid&s;t &s;o many other Poets contemporary with and a great many others &s;ince &s;ucceeding them, but becau&s;e they two far exceeded them all? Or that <HI>Solomon</HI> &s;hould be termed, <HI>The Wi&s;e man,</HI> and St <HI>Paul, The Apo&s;tle,</HI> when certainly wi&s;dome was to be found in others, and in a great propor|tion too, as well as in <HI>Solomon;</HI> and Saint <HI>Paul</HI> was but one of twelve Apo&s;tles; but becau&s;e the Wi&s;dome of <HI>Solomon</HI> did &s;urpa&s;s the wi&s;dome of all men under the Sun, and Saint <HI>Paul</HI>
<PB N="166" REF="91">was thought to be more in&s;pired, and to have greater gifts and endowments given him, then other Apo&s;tles had? In like man|ner and upon the &s;ame ground is it, that although every Na|tion that is brought under rule and government, and is not bar|barous, has a certain peculiar Civil Law, under which it lives and is governed; yet out of a general belief, that no other hu|mane Law what&s;oever is to be compared with the Roman Law, does it &s;till, as anciently it did, carry away the name and title of, <HI>The Civil Law,</HI> from them all, as being the exacte&s;t and perfecte&s;t of all other Laws in the World be&s;ides.</P>
</DIV2>
<DIV2 N="11" TYPE="chapter">
<HEAD>CHAP. XI.</HEAD>
<ARGUMENT>
<P>The Art and knowledge of doing the pure&s;t right and mo&s;t natural ju&s;tice, is laid down in the books of the Civil Law; and how it came by degrees to that per|fection, that now we &s;ee it in.</P>
</ARGUMENT>
<P>THe Roman Civil Law has not the praeeminence of other Laws in title and denomination onely, but it is thought al&s;o, that in the books thereof there are laid up &s;uch trea&s;ures of humane Wi&s;dome, Policy, Ju&s;tice, Equity, and natural Rea|&s;on, that the art of doing equal ju&s;tice, and the doctrine of true and uncorrupted right is taught by them onely. <HI>Jus,</HI> &s;aid Cel&s;us,<NOTE N="t" PLACE="marg">Lib. <HI>1</HI> Dig. Dt ju&s;t. &amp; ju.</NOTE> <HI>e&s;t ars aequi &amp; boni;</HI> Law is an art informing what is ju&s;t and good: And <HI>Jurisprudentia,</HI> &s;aid the Emperour,<NOTE N="u" PLACE="marg">Parag. <HI>1.</HI> In&s;t. cod.</NOTE> <HI>e&s;t rerum divinarum atque humanarum notitia, ju&s;ti atque inju&s;ti &s;cientia;</HI> The &s;cience of the Law teaches what is the right both in Holy and Worldly things, and what is ju&s;t and unju&s;t; both &s;peaking of the Roman Law: &s;o was it accounted then, and no otherwi&s;e is it accounted now too. For,</P>
<P>Whereas the learned of the world do reckon upon three &s;upreme Arts and Sciences, Divinity, Law, and Phy&s;ick, which do &s;o mainly &s;upport and hold up the whole frame of Man, that
<PB N="167" REF="91">without them this goodly linke of things here below mu&s;t needs di&s;&s;olve 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 &s;erves for the exigencies and occa&s;ions of the State, and varies as times and occa&s;ions, and the di&s;po&s;itions 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 ju&s;t and equi|table; and which deals more in the great advantages of State, then in &s;etling private intere&s;ts, or compo&s;ing differences be|tween man and man: (for this is the true &s;tate of the locall con&s;titutions of the &s;everal and re&s;pective Nations and King|domes of the World; each of them being far &s;hort of deciding tho&s;e many doubts and que&s;tions, that mu&s;t needs happen in great variety between their &s;ubjects, while&s;t they trade and deal together.) But they under&s;tand &s;ome more Univer&s;al Law, that is commonly embraced and allowed of by the be&s;t and mo&s;t potent Nations; that is full of pure equity and true rea&s;on, and being grounded upon dictates of nature and common rea&s;on, is unchangeable; who&s;e method is to teach and in&s;truct by certain rules and principles orderly and hand&s;omly dige&s;ted, as well as to command and order; and which among&s;t the frequent and various dealings of men, does leave few ca&s;es that can happen undecided.</P>
<P>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 almo&s;t ever &s;ince <HI>Rome</HI> was fir&s;t built, and were ordained as que&s;tions did ari&s;e from time to time, and under &s;e|veral forms of government; <HI>Rome</HI> being &s;ometimes under the rule of one, &s;ometimes of more, and &s;ometimes of the whole people; and grew at la&s;t to an infinite multitude, and lay in a confu&s;ed and indige&s;ted heap, void of all order or method: Yet at la&s;t <HI>Ju&s;tinian,</HI> when he came to the Empire, did &s;et upon that <HI>opus desperatum,</HI> as he calls it in his <HI>Proaeme</HI> to the In&s;ti|tutes, that de&s;perate enterprize of di&s;po&s;ing them into that admirable order that now we &s;ee them in; and indeed was the fir&s;t that laid the foundation for the building up of the Art and Science of Law.</P>
<PB N="168" REF="92">
<P>By his means it was, that after the be&s;t and mo&s;t u&s;efull Laws were &s;elected and cho&s;en out of a va&s;t and tumultuous heap, they were di&s;tributed into Titles, and the Titles into Books, every Title contains tho&s;e Laws that are proper and pertinent to that principal &s;ubject whereof that Title treateth; &s;ometimes by definition opening the true &s;tate and nature of it; &s;ometimes if it be various, dividing it into its &s;everal kinds and branches: al&s;o &s;ubjoyning a re&s;olution of the &s;everal ca&s;es and que&s;tions that come under it, rather by the &s;till voice of right rea&s;on, and as all men by their natural in&s;tinct, and practical experience would agree to determine them, then by &s;overeign command or imperial will.</P>
<P>After this method is that principal part of the Law the Dige&s;ts, otherwi&s;e called the Pandects compo&s;ed; which <HI>Duarenus</HI> cals the Magazine and Store-hou&s;e of all equity, ju&s;tice, and learning, and the artificial framing thereof <HI>Cuiacius</HI><NOTE N="x" PLACE="marg">Parat. Dig. Mandat.</NOTE> does &s;o much admire, that he judges them to be fools and illiterate, and not to under|&s;tand, neither what Art is, nor what the principles of Law are, nor how well the Pandects are made, that &s;hould require any other Art then what is to be found in them. <HI>Tully,</HI> &s;ayes <HI>Alciat,</HI> had long and &s;ollicitous thoughts, <HI>de jure Civili in artem redigendo,</HI> of making an Art of the Civil Law; but <HI>Ju&s;tinian</HI> in the <HI>Dige&s;ts</HI> hath done that work.</P>
<P>But to make this &s;cience of the Law yet perfecter, <HI>Ju&s;tinian</HI> hath al&s;o added his book of In&s;titutions, for no other end, but, as him&s;elf te&s;tifies, <HI>ut &s;int totius legitimae &s;cientiae prima elementa,</HI> the introduction to the whole Law, they being indeed the &s;umme and &s;ub&s;tance of it: and he directs it, <HI>cupidae legum juventuti,</HI> to tho&s;e that &s;hall de&s;ire to enter upon that &s;tudy; intending it as a help to the younger &s;tudents 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 con&s;i|dering, that the other volumes of the Law would prove too hard and tedious for young beginners, and &s;o it might come to pa&s;s, that the whole &s;tudy of the Law might be quite laid a&s;ide, and utterly peri&s;h for want of &s;ome to &s;tudy the &s;ame, he command|ed this little book of In&s;titutions to be made, whereby young men might be invited partly with the briefne&s;s, and partly with
<PB N="169" REF="92">the ea&s;ine&s;s thereof, to the &s;tudy and profe&s;&s;ion of it. Here then is a great body of Law orderly and methodically di&s;po&s;ed, and a book of praeliminary In&s;titutions al&s;o, to make the entrance into it ea&s;ier and more beneficial.</P>
<P>But there are two Volumes more of this Law al&s;o, the one collected by <HI>Justinian</HI> as the Dige&s;ts were, and that's the Code; the other ordained by him, as the In&s;titutions were, and that's the Authenticks, otherwi&s;e called the Novell Con&s;titutions: for the fir&s;t is but a bare collection of &s;uch deci&s;ions, as the Em|perours that had &s;ate in the Roman Empire even to <HI>Ju&s;tinians</HI> time had made to the que&s;tions that had been propounded to them, &s;ometimes by Judges, and &s;ometimes by private per&s;ons, as in contingency they fell; and are ranked in the &s;ame order and method as the Dige&s;ts are. In the Authenticks there is not that order ob&s;erved in the di&s;po&s;ition of Laws as is either in the Di|ge&s;ts, or the Code, but as occa&s;ion was offered of any doubt, wherein the Princes re&s;olution was nece&s;&s;ary to every thing, &s;o it is &s;et down without any other method or form. And they were call'd the Novels, becau&s;e they were new Laws, compa|red to the Laws of the Dige&s;ts, In&s;titutions, or the Code; and &s;ometimes they alter and correct the Laws of the other three.</P>
<P>Thus far went <HI>Ju&s;tinian</HI> him&s;elf in his de&s;ign of a general &s;urvey and di&s;po&s;ure of the Roman Laws; &s;ometimes ordaining Laws of his own, and &s;ometimes gathering together the Laws of others, till he had made an exact and ab&s;olute compo&s;ition. Which enterpri&s;e that renowned &s;cholar and State&s;man of our Countrey Sir <HI>Francis Bacon</HI> does &s;o much commend and ad|mire, in his Epi&s;tle to Queen <HI>Eliz&agrave;beth,</HI> &s;et before his book of Maxims of Law, that when he under&s;tood, that &s;he had the like purpo&s;e in her brea&s;t, to enter into a general amendment of the &s;tate of her Laws, and to reduce them to more brevity and certainty; he &s;aith, it &s;truck him with great admiration, when he heard it; and acknowledges it to be one of the mo&s;t cho&s;en works, and of highe&s;t merit and beneficence towards the &s;ubject, that ever entred into the mind of any King; but ad|deth, that there be rare pre&s;idents of it in government, as it cometh to pa&s;s in things &s;o excellent, there being no pre&s;ident
<PB N="170" REF="93">full in view but that of <HI>Justinian,</HI> as he confe&s;&s;eth. Who&s;e work is the more to be admired, becau&s;e the u&s;e thereof is not local, nor re&s;trained to the &s;tate and policy of one Nation one|ly, as hers would have been, but may &s;erve for the u&s;e and bene|fit of any &s;tate or people what&s;oever, and is &s;ub&s;ervient to all accidents and occa&s;ions that can happen in common inter|cour&s;e, and inded has for its object &s;uch things, as commonly ari&s;e every where throughout the World, and have no Muni|cipal or cu&s;tomary Law to determine them.</P>
<P>But if <HI>Ju&s;tinian</HI> &s;hould be thought to have failed in any thing of bringing this Art to a full perfection, yet what the learned of Chri&s;tendome from his time downward to this pre&s;ent, has done towards the perfecting thereof, will make it up: for the infinite number of writers of all &s;orts, of all Nations, and in all ages, that have wrote hereupon, are prodigious to behold, and wonderful to con&s;ider.</P>
<P>What Glo&s;&s;es, Notes, Lectures, Repetitions, Commenta|ries, Paratitles, Analy&s;es, Intellects, are there upon the very Laws them&s;elves? There is hardly any Text of Law that is not copiou&s;ly written on, either in &s;tating the true reading of it, or in clearing it from ob&s;curity, or in enlarging upon the matter of it. Then as to the general &s;ubjects of the Law, and the par|ticular ca&s;es and que&s;tions that fall under them, both &s;pecula|tive and practicall, the Tractats, Di&s;cour&s;es, Coun&s;els, Que|&s;tions, Reports, common Opinions, Controver&s;ies, Re&s;olutions, Practices, Ob&s;ervations, and Singulars, are without number.</P>
<P>Even this latter age of ours, be&s;ides all that which foregoing antiquity has produced, has brought forth every where in all Countreys of renown &s;o many famous writers in this kind, that every Nation has &s;eemed to be at an emulous contention each with other, which &s;hould mo&s;t excel in &s;uch men.</P>
<P>For <HI>France,</HI> are reckoned <HI>Cuiacius, Bri&s;&s;onius, Molinaus, Antonie Faber, Peter Faber, Rebuffus, Bodinus, Tholo&s;anus, Gothofred, Choppinus, Bellonus, Papo, Charondas, Hottoman,</HI> all of high account in that faculty.</P>
<P>For <HI>Spain,</HI> there are famous to this day, <HI>Covarruvias, Ge|mezius, Va&s;quius, Alvarez, Gregorie Lopez, Bernardus Diaz, Villagut, Pinellus, Franci&s;cus Salgado de Somoza, Sarmientus, Rodericus Suarez, Johannes Lupus.</HI></P>
<PB N="171" REF="93">
<P>For <HI>Italy, Gabr&igrave;el Romanus, Stiaticus, A&s;inius, Cephalus, Gigas, Gratus, Palaeotus, Peregrinus, Bo&s;&s;ius, Balbus, Pute|us, Farinacius, Ma&s;card, Zunt, Surdus, Vincentius de Fran|chis, Mozzius, Sfortia Oddos.</HI></P>
<P>From <HI>Germany</HI> came forth not without much e&s;timation and honour, <HI>Gail, We&s;enbeck, Min&s;inger, Schneidwine, Peckius, Hopperus, Raevardus, Vulteius, Thomingius, Althu&s;ius, Si|chardus, Freigius, Pacius, For&s;terus, Melchier Kling.</HI></P>
<P>Every one of the&s;e has left &s;uch writings behind him in the Civil Law, as will makes their memories immortal. Neither can it be any wonder, that the Civil Law it &s;elf, and the books thereof are grown &s;o voluminous and almo&s;t infinite. Becau&s;e indeed that Science does comprehend that va&s;t and great variety of affairs and worldly bu&s;ine&s;s, that the large Nation of the Ro|mans dealt in during the long continuance of that great and large Empire. And &s;ince have been added unto it, and &s;qua|red as it were by the rule thereof, and applied unto it, the af|fairs of many Nations, which mu&s;t in all changes and accidents, and in each Nation be many, various, and &s;everal from the time of that Empire down to this pre&s;ent. Which being &s;eve|rally writ upon, by &s;everal fancies, and in &s;everal wayes and methods, mu&s;t needs produce throughout the World large and copious writings in this faculty, as it has in all other Arts and Sciences be&s;ides. 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 tran&s;acted, either Dome&s;tick, Civil, or Military, either between governours and governed, or between the people them&s;elves one with another, or between Nation and Nation, either upon &s;ea or upon land, but by the help of that &s;tudy and the writings thereof, there may be found mo&s;t ratio|nal rules and directions; &s;ometimes to di&s;cern the true nature of the thing it &s;elf; &s;ometimes to di&s;cern its kinds; &s;ometimes to re&s;olve the doubts and que&s;tions that fall under it; &s;ome|times to ju&s;tifie it as wholly good and lawful; and &s;ometimes to condemn it as altogether unju&s;t and evil. And if the action be not uniform, but various, and may be in &s;ome ca&s;es good and in others evil, it will di&s;tingui&s;h upon the &s;everal ca&s;es; that dealers may walk &s;ecurely and &s;afely, if they will guide their
<PB N="172" REF="94">actions by the pre&s;cript of that Law, where the Laws and cu&s;tomes of their own Countrey doe not direct them other|wi&s;e.</P>
<P>No part of this pains has been taken or honour done by the learned of forreign States to the Municipal Law of any Na|tion, be&s;ides the Roman; for although every State may won|derfully affect and be delighted with their own Laws, and &s;o it may come to pa&s;s, that they may be greatly extoll'd and &s;et up, and &s;ometimes with much indu&s;try and great benefit to the &s;ub|jects interpreted, explained, and writ upon by the writings of their own Countrey-men; yet are they of &s;o little e&s;teem and account with forreigners, that they almo&s;t di&s;dain 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 bu&s;ied and &s;et on work the learned of the whole World.</P>
<P>Therefore, what high applau&s;e &s;oever may be given to the local con&s;titutions of any people (as que&s;tionle&s;s they are all u&s;eful within their proper territories) yet it is a truth unque&s;ti|onable, that in the account of other Nations, what&s;oever the ca&s;e or que&s;tion be; be it between their own &s;ubjects, &s;o that their own National Laws and cu&s;tomes do not &s;pecially order it; or be it between them and other Princes, or their &s;ubjects, the Civil Law is the &s;traite&s;t rule and the be&s;t guide to decide it by; and the art and skill to di&s;pen&s;e equal right and exact ju&s;tice to all men, is to be learnt from the &s;tudy of no other Law of mans creation but that Law onely. <HI>Nihil aliud e&s;t jus Civile, qu&agrave;m &s;ententiae quaedam &agrave; veteribus Juri&s;con&s;ult is pronunciatae, quae in certum redactae ordinem, dijudicandi rationem no&s;tr is Juri&s;pe|rit is o&s;tendunt,</HI> &s;ays <HI>Machiavell</HI> him&s;elf in his <HI>Prooem</HI> to his books <HI>de republica.</HI> The Civil Law is nothing more then certain dictates or principles declared by the ancient lawyers (undoubtedly mea|ning <HI>Papinian, &V;lpian, Scaevola, Africanus, Pomponius, Neratins, Cel&s;us, Marcianus,</HI> and the re&s;t, who&s;e names are prefixed before their &s;everal Laws in the Dige&s;t) which being put into good or|der, do in&s;truct others in the wayes of admini&s;tring right and ju&s;tice. And hence is it, that in all the Univer&s;ities through|out the World, I will not except <HI>England,</HI> the Law that is &s;tu|died,
<PB N="173" REF="94">the Law that is publickly read and taught in their Schools, the Law wherein degrees are taken, is the Civil Law.</P>
</DIV2>
<DIV2 N="12" TYPE="chapter">
<HEAD>CHAP. XII.</HEAD>
<ARGUMENT>
<P>An An&s;wer to the main Objections that are now adayes made again&s;t the continuance of the Civil Law with|in this Nation.</P>
</ARGUMENT>
<P>THe&s;e things that have been thus truly delivered to the prai&s;e and commendation of the Civil Law, being clear and evident, our Adver&s;aries the Anticivilians will not &s;o vain|ly contend, as to oppo&s;e them, or to detract from the worth of that learning, which has been &s;o generally owned by all the World, nor was ever brought into any que&s;tion, &s;ince it was fir&s;t propagated and made known to other Na|tions be&s;ides the Roman. They will, as they mu&s;t, admit and acknowledge, that the Civil Law doth more abound with natural rea&s;on and equity, then any other Law of mans e&s;ta|bli&s;hing; that it has &s;pread further into the World, then any Law ever did; and has been more &s;tudied and adorn|ed with the writings of the learned of all Nations and langua|ges, then any Law that yet has been; that the profe&s;&s;ion thereof is of &s;o large a compa&s;s, 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 mini&s;ter right and ju&s;tice onely by the learned and Graduates of that profe&s;&s;ion; that the principles of &s;olid wi&s;dome and be&s;t Mo|ral Hone&s;ty are taught thereby; that it has de&s;cribed and &s;et down the duties of all people of what relation &s;oever, more amply, and more to the pattern of nature and right rea&s;on then any other Law has done. Yet this free and ample acknowledgment notwith&s;tanding, they will not ad|mit the u&s;e and practi&s;e thereof in the mini&s;tration of
<PB N="174" REF="95">ju&s;tice within this nation to be co~venient or nece&s;&s;ary, &s;ugge&s;ting to them&s;elves certain rea&s;ons &s;trong and important, as they pre|tend, why that profe&s;&s;ion how learned and wi&s;e &s;oever in it &s;elf, yet &s;ince it is become u&s;ele&s;s, as to the people of this Nation, it cannot conveniently, as our affairs are now changed, be con|tinued here any longer, as they imagine. Which opinion how well it is grounded, it is meet and requi&s;ite we &s;hould in the next place examine; for except it may be maintained that it is al&s;o u&s;efull and very nece&s;&s;ary for the Common-wealth under which we now live, and no way, or at lea&s;t, in compari&s;on of the great benefits thereof, not con&s;iderably inconvenient, all the other excellencies and rare qualities that can be &s;poken thereof, will turn but into a &s;peculative and ayrie di&s;cour&s;e, and will move nothing towards the begetting of a publick &s;ettlement thereof within the Nation: for, they will &s;ay, all rules and in|&s;tructions that are u&s;eful to inform the under&s;tanding, and fa|&s;hion the manners and actions of private men or of Princes, as they are men onely, may not pre&s;ently be fitting or nece&s;&s;ary to regulate and direct a State in the carrying on of publick bu&s;ine&s;s.</P>
<P>Let it therefore be added for a further commendation of the Imperial Law; fir&s;t, that as it containes the dictates of nature, the conclu&s;ions of right rea&s;on, and as it &s;ets forth the natural and e&s;&s;ential properties of &s;uch humane things, contracts and dealings of men, whereof it treats, (of all which without com|pari&s;on the greate&s;t plenty lies recorded in the writings of the Civil Law) I &s;ay, as it containes all the&s;e, it is &s;o e&s;&s;entially ne|ce&s;&s;ary to the well ordering of all States and the common affairs of men, that it cannot be a boli&s;hed through any change of Law or government what&s;oever, but at the &s;ame in&s;tant the peace and well being of that State and people mu&s;t needs vani&s;h and di&s;&s;olve al&s;o: For can the Sun fall from the firmament, and the world not be at an end? or the &s;oule expire, and the body not be void of life or motion? No more can the &s;plendour of that people endure any longer, where the &s;un of natural equity and ju&s;tice has left to &s;hine among&s;t them; nor can the body of a Common-wealth grow pro&s;perous or flouri&s;hing, that is fal|len from the &s;oundne&s;s of right rea&s;on, which is the very &s;oul
<PB N="175" REF="95">and &s;pirit of all Law and government: for in this it is no other|wi&s;e with a whole &s;ociety of men, then it is with one individual per&s;on.</P>
<P>If a man &s;hall be unnatural, and cares not to ob&s;erve true right and ju&s;t rea&s;on in his dealings with other men, he pre&s;ent|ly renders him&s;elf odious and dete&s;table to all men, and it is lookt upon as dangerous to have any dealings or to be familiar with &s;uch a per&s;on. 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, &s;hall admini&s;ter that for right, which cro&s;&s;es natural ju&s;tice, and the notions of right rea&s;on, it expo&s;es it &s;elf to &s;corn and obloquie, it gaules and exa&s;perates their own &s;ubjects, and makes their neighbours &s;tand at a di&s;tance with them: and the condition of that State mu&s;t needs be dangerous and un&s;ure, having lo&s;t their reputa|tion both at home and abroad. Onely here is the difference, and it is a &s;ad one; The danger of particular inju&s;tice deter|mines in &s;ome detriment of a few; but national inju&s;tice drawes after it ofttimes the ruine and confu&s;ion of many Nations.</P>
<P>Be&s;ides, the impre&s;&s;ions of nature and rea&s;on are &s;o &s;trong in man and &s;o great a part of his e&s;&s;ence, that they cannot be quite expunged or deleted in him; neither can they be &s;o long di&s;|continued, but they will at length have their return &mdash; <HI>Natu|ram expellas furcalicet, u&s;que recurret</HI> &mdash; and inclinations and affections thereunto will appear, even when the contrary is performed. So true is that of the Civil Law, <HI>Jura naturalia &s;unt immutabilia;</HI><NOTE N="y" PLACE="marg">Parag. <HI>11.</HI> In&s;t. De jur. nat. geut. &amp; Civil.</NOTE> The Laws of nature and the common rea|&s;on of nations are unchangeable, and are not capable to be re|pealed.</P>
<P>For if it were once admitted, that the&s;e Laws were alterable, what &s;trange contradictions and &s;en&s;le&s;s incongruities would follow? And how would man be ravi&s;hed as it were from him|&s;elf, his rea&s;on one chief part of his e&s;&s;ence being taken away? Be&s;ides, how would &s;ins and tre&s;pa&s;&s;es again&s;t nature multiply? How common would natural inju&s;tice be? and what loud com|plaints thereof would ari&s;e? whereby not onely great confu&s;ion would break in, and the peace of the Common-wealth be di|&s;turbed,
<PB N="176" REF="96">but the common &s;ociety of Nations would in time al&s;o cea&s;e. The Civil Law then, as it is natural, e&s;&s;ential, or rational, cannot be repealed.</P>
<P>Secondly, let it be &s;poken to its prai&s;e al&s;o, that the Civil Law is &s;o far from being made u&s;ele&s;s to a Nation, where the whole &s;tate of Government has been &s;ubverted, as that it is thereby become more u&s;eful and nece&s;&s;ary.</P>
<P>It is certain, that the Roman people them&s;elves thought it &s;o, when they di&s;patcht certain cho&s;en men on purpo&s;e to fetch it from <HI>Athens</HI> for their u&s;e and &s;ervice, after they had driven out their Kings, &s;uppre&s;&s;ed their Laws, and erected a popular government in place of the Regal. The like opinion po&s;&s;e&s;|&s;eth now adayes the Princes and potentates of the greate&s;t part of <HI>Europe,</HI> as is clearly demon&s;trated by their admitting the learning and profe&s;&s;ion thereof into their &s;everal Territories, that it may be at hand to decide and re&s;olve &s;uch ca&s;es and que|&s;tions of right, that happen among&s;t their people, wherein a Law of their own is wanting.</P>
<P>Nay, if any &s;uch difference or controver&s;ie ari&s;es between the Princes them&s;elves, or between Nation and Nation, which is mo&s;t frequent and common; becau&s;e there never was nor can be by any authority a po&s;itive Law made to bind them, they de|bate and argue &s;uch differences by arguments fetcht from the Civil Law, and allow of the rea&s;on thereof as a mo&s;t competent and equal rule to decide them by.</P>
<P>And if this &s;upply of ju&s;tice by the learning and knowledge of the Civil Law were taken away too, what ignorance, uncer|tainty, arbitrarine&s;s, inju&s;tice, and oppre&s;&s;ion would the peo|ple of the world lie under? and what hazards of detriment or ruine would their rights, fortunes, and e&s;tates be expo&s;ed unto? for where all manner of Law is wanting in a Common weale, to do the acts of ju&s;tice and mini&s;tration of right by, it mu&s;t be granted, that the light of natural rea&s;on mu&s;t of nece&s;&s;ity be the Law; &s;ince that was the onely means which was given to man at fir&s;t to judge and di&s;cern by of humane things, before any Law was given. But if that &s;hould depend upon the wan|dring fancies and imaginations of men onely, and not be illumi|nated by &s;ome right knowledge and learning, under how many
<PB N="177" REF="96">&s;everal &s;hapes and forms mu&s;t it needs appear, when the appre|hen&s;ions and conceptions of men through the variety of natural gifts, education, age, knowledge, and experience, are as differ|ing, as their vi&s;ages and per&s;ons be?</P>
<P>And where would the certainty, con&s;tancy, and unity of ju|&s;tice be, when the Judges of the &s;ame Tribunal furni&s;hed with bare natural endowments onely, would differ from and oppo&s;e one another? when one Tribunal &s;hall judge directly oppo&s;ite to another upon one and the &s;ame fact, or (which is a levity &s;hameful and unbe&s;eeming) when the Judges of the &s;ame Court in ca&s;es of like nature, &s;hall judge and order diver&s;ly from that which they had done before?<NOTE N="z" PLACE="marg">Apud Roma|nos prius qu&agrave;m &s;ententiam fer|rent, praeco clara vice judioes ho<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">|tabatur, Ne &s;e paterentur &s;ui di&s;&s;imiles e&s;&s;e. <HI>Bodin. de rep. lib. 6. ca. 6.</HI></NOTE> Under which uncertainty and di&s;cordance how &s;hall people know what to expect, when their rights come into que&s;tion? What can any Coun&s;el advi&s;e? Or what caution or advi&s;edne&s;s can be u&s;ed by men, to put them|&s;elves or their affairs out of jeopardy, when they are never cer|tain of that ju&s;tice to which they &s;hould conform them&s;elves, and be &s;ecure?</P>
<P>By the conver&s;ion and change of State therefore, though the Municipal Law goes to wrack (as commonly &s;uch great frames are &s;eldome medled withal, but all falls a pieces) the Civil Law is not the le&s;s, but rather the more nece&s;&s;ary to be retained &s;till; Fir&s;t, becau&s;e it hath no coherence or conglutination with the particular cu&s;tomes or government, either Regal or Epi&s;co|pal, as the Municipal Law hath, and &s;o the one may fall, and yet the other &s;tand. Secondly, becau&s;e the Civil Law is the proper Art and Science of that right natural rea&s;on, which for want of other rules in the doing of ju&s;tice, we have &s;aid mu&s;t nece&s;&s;arily be the common &s;tandard to try all things by. The principles of which Art and Science are not weak or &s;uperficial, but &s;trong and &s;olid; not various or repug|nant, but certain and agreeing; not har&s;h and rigorous, but tender, compa&s;&s;ionate, and equitable; not partial to any, but alike ju&s;t to all; not ob&s;cure and perplexed, but clear and per|&s;picuous in the eyes of judicious and right di&s;cerning men, though above the reach of the vulgar. Thirdly, becau&s;e in carries the weight of undeniable authority along with it, the deci&s;ions thereof being not the &s;udden fancies and raw conceits
<PB N="178" REF="97">of a few men, nor do they re&s;t upon the bare Reports of any, how learned in the Law &s;oever, but they are the clear evidence of Rea&s;on, and the prudent advi&s;ements and mature deliberati|ons of a whole State, excelling in wi&s;dome, mighty in greatne&s;s, and famous in renown.</P>
<P>And how&s;oever it was at fir&s;t ordained to be a Law for a par|ticular Nation to be ruled by, yet has it &s;ince been made univer|&s;al in u&s;e throughout <HI>Europe;</HI> and by the general con&s;ent of all the learned &s;prung up to an Art or Science, to teach natural ju&s;tice and equity to all mankind. Fourthly, becau&s;e the rea|&s;on of the Civil Law does not onely rightly inform and teach the under&s;tanding what is ju&s;t and right, but the certainty there|of does keep the judgment &s;teddy, and unexpo&s;ed to tho&s;e fits of variation and in&s;tability, which tho&s;e that are directed by no certain principles, are &s;ubject to; for it is not ea&s;ie for them to vary, who have any fixed rules to guide them: So that if this Law were duly applied by tho&s;e onely that are learned in it (&s;ince it is not po&s;&s;ible to be done by any other &s;ort of men) neither ignorance, nor errour, nor arbitrarine&s;s, nor uncer|tainty of ju&s;tice, nor the con&s;equences thereof, wrong, inju|&s;tice, or oppre&s;&s;ion would be found, at lea&s;t they would not be &s;o frequent and common, as where the guidance and light of &s;uch a Law is wanting.</P>
<P>But be&s;ides the&s;e foregoing rea&s;ons, there are yet further and much &s;tronger rea&s;ons to be added, why tho&s;e matters and cau&s;es, which before the pre&s;ent change of government did be|long to the trial and determination of the Civil Law, &s;hould be kept within the &s;ame cogni&s;ance &s;till, the&s;e alterations notwith|&s;tanding. Fir&s;t, becau&s;e for many hundreds of years, that and no other his been the &s;tanding, approved, and practi&s;ed Law in tho&s;e matters, and therefore in that regard to be preferred before any new Law, though better, if &s;uch a one could po&s;&s;i|bly be found. Secondly, becau&s;e if it &s;hould be laid a&s;ide, it would be &s;o impo&s;&s;ible to finde a better, that we &s;hould find no Law or rule at all, to put in the room thereof, that would be able to decide them with any tolerable di&s;cretion or knowledge. The profe&s;&s;ours of the Municipal Law mu&s;t acknowledge, that their Book ca&s;es (the onely learning of their Law) mu&s;t needs
<PB N="179" REF="97">here fail them, when not any of tho&s;e matters were ever judg'd or tried before them. Where then would the Law or rule be found? And &s;urely from that we have before &s;aid, it were ve|ry inconvenient to commit the triall of them to &s;uch as have neither Law or knowledge proper for the determination of them. Thirdly, becau&s;e thereby &s;o eminent and &s;o u&s;eful a profe&s;&s;ion might be kept up; which el&s;e to the great di&s;honour and dammage of this Nation mu&s;t irrecoverably fall, and be quite extinct. Fourthly, becau&s;e if the&s;e things were &s;uffered to go on in their accu&s;tomed way, it would make this great change of State to be the le&s;s, which in all alterations is to be wi&s;hed and &s;ought after. Fifthly, becau&s;e there was nothing in the nature of tho&s;e cau&s;es to tie them to the former govern|ment onely; but that they may be tried under the name and authority of the pre&s;ent government, and yet as much accord|ing to the cour&s;e of the Civil Law, as they were before; for in|deed the Civil Law is fitted to act under any government. It can &s;erve the Church, as well as the State; the Popular govern|ment, as well as the Regall; and the Ari&s;tocratical, as well as either; as we &s;hall clearly find if we look into the States abroad, as <HI>France, Spain,</HI> the Empire, the Territories of the Church of <HI>Rome,</HI> the States of the Low Countreys, the States of <HI>Italy,</HI> the State of <HI>Venice,</HI> who&s;e differing in point of government does not hinder, but that the Civil Law is u&s;ed and practi&s;ed in them all.</P>
<P>The rea&s;on whereof is, becau&s;e it meddles not with matters of government at all, but was originally made to order the pri|vate affairs of the people, and to judge the matter of right be|tween party and party onely; as may appear by the very &s;tate and purport of the Laws them&s;elves, which are as an&s;wers made to que&s;tions onely concerning matters of private right and inte|re&s;t, as they did ari&s;e from time to time, during the long con|tinuance of the Roman Empire. Be&s;ides, the Romans them|&s;elves after they had expul&s;ed their Kings, &s;aw &s;everal kindes of government, and yet the Civil Law &s;erved under them all. And if it did not &s;tand indifferent in this point of government, &s;o many Princes and States herein very much di&s;agreeing, would not &s;o freely admit it into their Territories, as they do; for can
<PB N="180" REF="98">we think, that they would con&s;ent to the admittance of any thing that might endanger their government? So that it is clear, the change of government that has been among&s;t us, does not at all hinder, but that as long as the &s;ame cau&s;es as well Mari|time as others, do remain, and mu&s;t nece&s;&s;arily have a Trial, the Civil Law, that tried them before, is the fitte&s;t Law to try them &s;till.</P>
<P>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 Legi&s;lative power and authority of this Nation; and therefore very inconvenient it may &s;eem, that matters ari&s;ing here &s;hould be ordered by any other Law, then which is of our own making, or that we &s;hould be made to &s;ub|mit to any other. Be&s;ides, to have two Laws tolerated in one State, may cau&s;e great di&s;traction and uncertainty among&s;t the people, who may under &s;everal pretences be troubled and con|vented under both for one and the &s;ame thing. Further, the entertaining of the Civil Law, may in time be a means to &s;up|plant and undermine the Municipal Law and cu&s;tomes of this Nation.</P>
<P>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 Engli&s;h Antiquaries, <HI>Cambden,</HI><NOTE N="a" PLACE="marg">Britann. fo. 153.</NOTE> <HI>Spelman,</HI><NOTE N="b" PLACE="marg">Glo&s;&s;ar. verb. lex Anglorum.</NOTE> <HI>Co|well,</HI><NOTE N="c" PLACE="marg">Interpr. verb. Law.</NOTE> and <HI>Selden,</HI><NOTE N="d" PLACE="marg">Notes upon Forte&s;cue. ca. 17. in princ.</NOTE> all take notice, that the Laws of this Na|tion are but a mixture and compo&s;ition? And yet it is not &s;uch a &s;tranger among&s;t us neither, as may be conceived; for not onely Antiquity will tell us, that when the Romans were po&s;|&s;e&s;&s;ed of this Nation, and during the continuance of their go|vernment and power here (which was no le&s;s then 500 years) all the affairs of this Nation were ordered and carried on by the Roman Civil Law; and had no Law to a&s;&s;i&s;t, much le&s;s to check it in all that time.<NOTE N="e" PLACE="marg">Cambdens Britan. fo. 63. Seldens Di&s;|&s;ertat. ad Flet. ca. 4.</NOTE> But al&s;o if we look no further back then twenty years ago, we &s;hall remember the Civil Law did &s;o far &s;pread it &s;elf up and down this Nation, that there was not any one County, which had not &s;ome part of the govern|ment thereof managed and exerci&s;ed by one or more of that profe&s;&s;ion, be&s;ides the great employment and practi&s;e it had in the Courts in <HI>London.</HI> So that it being thus incorporated, and
<PB N="181" REF="98">as I may &s;ay, naturalized by our &s;elves into this Common|wealth, it ought not to be reputed or look'd upon by us a &s;tran|ger any longer.</P>
<P>Be&s;ides, right rea&s;on from what hand &s;oever it comes pre&s;ented, ought to be embraced by us;<NOTE N="f" PLACE="marg">Rationabile dictum debet ita movere judicem ed judicandum, &s;icut ip&s;a lex. Quia lex e&s;t om|ne quod ratione con&s;istit. Ita|que &s;ufficit allegare naturalem rationem, licet quis legem non alleget. <HI>Ja&s;. in l. 19. Co. De collat. nu. 10.</HI></NOTE> and is authority enough to it &s;elf, to car|ry the under&s;tanding, judgment, will, and affe|ctions of all men, though it be not put into a Law.<NOTE N="g" PLACE="marg">Imberillitas e&s;t humani intel|lectus in quacunque cau&s;a legem quaerere, ubi rationem natura|lem inveneris. <HI>Bald. in l. &s;cire oporiet. parag. &s;ufficit. Dig. De excu&s;, Tut.</HI></NOTE> But when be&s;ides its own commanding power and vertue, it comes withall recommen|ded by &s;uch a wi&s;e State as the Roman was, and framed into a Law by them, and has &s;ince been allowed of by other Nations al&s;o, as con|forming with the general rea&s;on of Man; &s;urely it ought not to be lookt upon as &s;trange and forreign unto us or to our affairs, carrying about as the &s;ame rea&s;on, and dealing in the &s;ame mat|ters that they did, meerly becau&s;e we did not promulgate and enact the &s;ame.</P>
<P>Moreover, if we will deal in forreign affairs, and lanch forth into the wide Ocean, and conver&s;e with forreign people, and have to do with &s;hipping, negotiation, and traffick, without which (&s;o populous are we grown) we are not able &s;o much as to &s;ub&s;i&s;t or live; or if we would be enabled to &s;tand upon our own defence again&s;t a Nation that &s;hall a&s;&s;ault us by a war; or revenge un&s;ufferable injuries done us by making war upon them; we mu&s;t not then &s;tand upon our own Legi&s;la|tive authority, to which other Princes and people will not be obliged;<NOTE N="h" PLACE="marg">Con&s;uetudines vel &s;tatuta &s;unt localia, &amp; fie non obligant ni&s;i &s;ubditos. <HI>Gail. ob&s;. lib 2. ob&s;. 124. nu. 5.</HI></NOTE> but we mu&s;t be contented to &s;tand and &s;ubmit our &s;elves to &s;uch a Law how forreign &s;oever, as is proper for tho&s;e very matters, and to which other Nations do refer them&s;elves; which is the Civil Law, that Nature has breathed out it &s;elf in, and Nations have con&s;ented unto.</P>
<P>And if it be &s;o nece&s;&s;ary for the carrying on of forreign affairs, that they cannot be tran&s;acted without it, this &s;hews a nece&s;|&s;ity of admitting of it al&s;o in the agitation of certain matters and cau&s;es at home and among&s;t our &s;elves, for the more am|ple reward and encouragement of that profe&s;&s;ion; which can
<PB N="182" REF="99">never be maintained or upheld by the tran&s;action of forreign affairs onely; which is not de&s;ired neither in any greater lati|tude or mea&s;ure, then has been alwayes allowed it heretofore, and where the Common-Law has never known to intermeddle: and in which if the Civil Law &s;hould not be u&s;ed, que&s;tions and differences would ari&s;e, and there would be no Law or Rule found to &s;ettle them, which would be a very pernicious thing: So that be the authority of the Civil Law forreign, which it can|not be, except it were impo&s;ed upon us by &s;ome other Nation or people; or be it that it were of no authority at all, but what the nece&s;&s;ary a&s;&s;ent of our own natural rea&s;on, and the con|&s;ent of Nations gives it; yet it were &s;trange that we &s;hould ra|ther chu&s;e to have no Law at all in tho&s;e matters, then to re|ceive or entertain the &s;ame for a help to direct our judgments in them.</P>
<P>It being then &s;o nece&s;&s;ary a Law, that but by the knowledg and conduct thereof forreign affairs cannot po&s;&s;ibly be carried on, and there would be a manife&s;t failer of ju&s;tice in other matters at home without it; the &s;uppo&s;ed inconvenience of having two Laws in one and the &s;ame Nation, &s;o much urged again&s;t it, will appear to be a very &s;lender and incon&s;iderable 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? Be&s;ides, it is &s;o far from being an inconveni|ence, that it is both a benefit and an honour to a people to a|bound in ju&s;tice, and to have it rather &s;upplied by two Laws, then to fail in the doing thereof by having but one.</P>
<P>And though where there be two Laws, and two di&s;tinct pro|fe&s;&s;ions of them in one State, if the matters and cau&s;es where|of they are &s;everally allowed the cognizance, be not certainly a&s;&s;igned to each, that the one may not enterfire with the other, there may ari&s;e a confu&s;ion of juri&s;dictions, and the &s;ubject will be uncertain whither to goe for ju&s;tice, and may be in danger to be mole&s;ted by both Courts for one and the &s;ame thing, which were an intollerable mi&s;chief:<NOTE N="i" PLACE="marg">Gravius pri|vatorum damno peccatur, e&ugrave;m inter &s;ummos magi&s;tratus, curia&s;ve majores de imperio cer|tatur. <HI>Bodin. de rep. lib. 3. ca. 6.</HI></NOTE> Yet the Courts of the Civil Law have alwayes had their limits particu|larly pre&s;cribed them, and the cau&s;es within their cogni&s;ance punctually &s;et down; and if they hold plea of any thing el&s;e,
<PB N="183" REF="99">there is a known remedy to be had to &s;top them, by bringing prohibitions from the Common-Law, which are never &s;o &s;oon ask'd, as granted. But if the Common-Law Courts &s;hall draw to their examination &s;uch 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 them&s;elves, as in the bu&s;ine&s;s of allotting porti|ons among&s;t the decea&s;eds kindred, which they never did nor can do, nor will &s;uffer the Civil Law Courts to do it neither, this an heavy vexation, but the blame mu&s;t lie upon them. But to be &s;ure, while&s;t there is &s;uch a correcting hand over the Courts of the Civil Law, there is little ground of fear that they can trouble or mole&s;t the people further then their ju&s;t pow|er does authori&s;e them. Which may be &s;ufficient al&s;o to remove the jealou&s;ies of tho&s;e that fear, if the Civil &s;hould be admit|ted, it may in time &s;upplant and undermine the Municipal Law of this Nation: For it were a vain attempt for &s;ubordinate Courts to go about to &s;hake the &s;tanding of that Law, to who&s;e check and controule they lie continually &s;ubject.</P>
<P>And if in forreign Nations (that have their Municipal Laws all of them, but no profe&s;sion, nor Lawyers, nor Judges, but of the Civil Law onely) there is not any found &s;o bold and pre&s;umptuous, that dares at any time to &s;et up the Civil Law above the particular Law or Cu&s;tome of the place, though op|portunities to do it are not wanting, but that the particular Law or Cu&s;tome, if any be in the ca&s;e, does prevail, and has the praeeminence alwayes; &s;urely then the Municipal Law and cu&s;tomes of <HI>England</HI> are much more &s;ecure from being inva|ded and incroched upon, when not onely the Law is di&s;tinct, but there is a di&s;tinct profe&s;sion thereof al&s;o from the Civil Law, that bears a watchfull eye towards its own greatne&s;s, and which is more, that has a controuling power, and as it were a &s;overeignty over the other. Be&s;ides, the very principles of the Civil Law do run clean counter to any &s;uch de|&s;ign, it being an expre&s;s Maxime in that Law, That the Municipal Law and cu&s;tome of any State for what con|cerns tho&s;e that are &s;ubject to it, ought to be preferr'd before any more Univer&s;al Law that is to the contrary.
<PB N="184" REF="100"><HI>Lex Municipalis &s;ive con&s;uetudo juri communi derogat;</HI><NOTE N="k" PLACE="marg">Gail. ob&s;. lib. 2. ob&s;. 124. nu. 2.</NOTE> <HI>Lex cuju&s;que loci in&s;picienda e&s;t, &s;ive &s;cripta &s;it, &s;ive non.</HI><NOTE N="l" PLACE="marg">Gl. in l. <HI>5.</HI> parag. <HI>1.</HI> Dig. De jur. immunit verb. legem. Tam in decidendis litigantium contro|ver&s;iis, is qui juri&s;dictioni prae|e&s;t, con&s;uetudines loci, in quo contractum est, ob&s;ervare debet, qu&agrave;m in delictorum punitione, ejus loci con&s;uetudinem, in quo peccatum e&s;t, &s;equi tenetur. <HI>l. &s;i &s;undus. Dig. de evict. Doct. in l. cunctos. Co. De &s;umm. Trinit.</HI></NOTE> And as I have &s;aid before often, &s;o I mu&s;t inculcate it here &s;till; The Civil Law, where ever it is admitted, it comes with|out the lea&s;t prejudice to any, either Law, cu|&s;tome, or government, nor alters any thing; but is an auxiliary &s;upplement or a knowledg a&s;|&s;i&s;ting in the admini&s;tration of right and ju&s;tice both to &s;ubjects, and between Nation and Na|tion, where there is no Municipal Law in the ca&s;e, or where it is imperfect and ob&s;cure, or where a locall Law is of no authority at all. In the one it &s;upplies, in the other it interprets, in the la&s;t it moderates, as a mo&s;t indifferent Umpire.</P>
<P>So that of the&s;e two Laws the proper office and function is, without drawing &s;everal wayes, and cla&s;hing one again&s;t ano|ther, or que&s;tioning each others power, &s;weetly to joyn both in that mo&s;t excellent and divine work of ju&s;tice, which may render the people of this Nation mo&s;t quiet within them&s;elves, and honourably e&s;teemed by others.</P>
<P>But la&s;tly, there is a &s;trange conceit that has got into the heads of &s;ome men. That the Civil and Canon Law are one and the &s;ame, that they cannot be &s;evered, that if the one be admit|ted, the other will have acce&s;s al&s;o, and the letting in of the Canon Law, which was ordained by the Popes and the Church of <HI>Rome,</HI> will open a wide gap to introduce all their &s;uper&s;tition, erroneous doctrine, and prelatical di&s;cipline; and &s;o in time we &s;hall become wholly Romi&s;h and Antichri&s;tian And truly I mu&s;t confe&s;s, that &s;uch a cau&s;e, that might produce &s;o dan|gerous an effect, is not to be neglected, but is to be very care|fully look'd after. But as in the one the &s;uppo&s;ition is great|ly mi&s;taken, &s;o there is no &s;uch cau&s;e of fear in the other, not any &s;uch danger as is &s;urmi&s;ed: for that the&s;e two Laws are the &s;ame, or that they are in&s;eparable, is more then a &s;mall mi&s;take. They were made at &s;everal times, long di&s;tant each from other, by &s;everal authors, and for &s;everal ends and purpo&s;es.</P>
<P>The Civil Law, after it had been growing by degrees in a
<PB N="187" REF="100">very long proce&s;s of time, as well under the people, when <HI>Rome</HI> was a free State, as under the Emperours; being become vo|luminous and indige&s;ted, the choyce&s;t thereof was pickt out and laid together by <HI>Ju&s;tinian;</HI> and that Collection was perfected in the year 533, and made the Law of the Empire, whereof <HI>Rome</HI> was now no part or member, but become the land of the Church, the place for the Popes and Bi&s;hops of <HI>Rome</HI> to &s;it in. Who though they made canons for the rule of the Church and Church-men long before, yet the Canon Law, that is now &s;o &s;tyled, came not forth into the world till above 500 years af|ter; the fir&s;t part thereof, which is <HI>Gratians</HI> decree, being not publi&s;hed till the year 1151.</P>
<P>The intent and purpo&s;e of the Civil Law was, to order and direct all the Civil affairs of the great and &s;pacious Roman Em|pire: And the bu&s;ine&s;s of the Canon Law was to guide and go|vern the &s;piritual and eccle&s;ia&s;tical matters of the See of <HI>Rome;</HI> the one was ordained to rule a State, the other to di&s;cipline a Church. The&s;e con&s;iderations then dividing and &s;etting apart the&s;e two Laws each from other, do manife&s;tly &s;hew, that they are neither the &s;ame, nor for the &s;ame end made, nor yet in&s;eparable; for if that mighty State of the Romans could man|nage and carry on &s;o much bu&s;ine&s;s as they dealt in, by the Ci|vil Law onely, what need has any le&s;&s;er Nation now to make u&s;e of the Canon Law at all? Be&s;ides, there has been alwayes &s;uch a contention between the&s;e two Laws for &s;uperiority, and which &s;hould have mo&s;t e&s;teem with the Nations of <HI>Europe,</HI> that they have been rather ready to fight as foes, then unite and agree as friends. Nay, Mr <HI>Selden</HI><NOTE N="a" PLACE="marg">Di&s;&s;ert ad Flet. ca. <HI>6.</HI> nu. <HI>5.</HI></NOTE> writes, that when Pope <HI>Inno|cent</HI> the &s;econd did &s;ollicit the Europaean Princes and people to give admittance to the Canon Law within their Territories, think|ing thereby to enlarge his own juri&s;diction and greatne&s;s, 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 &s;hould rather &s;eem they are &s;o far from being in&s;epa|rable, that to entertain the one, is the onely means to &s;hut out the other.</P>
<P>And indeed the Canon Law is unnece&s;&s;ary where the Civil is in u&s;e; for it is well known, that the latter Roman
<PB N="188" REF="101">Emperours did<NOTE N="b" PLACE="marg"><HI>Bil&s;on</HI> a Bi|&s;hop of our Church doth defend <HI>Ju&s;tini|an</HI> and the o|ther Emperors, and all Princes in &s;o doing. <HI>Chri&s;tian &s;ub|ject part.</HI> 2. <HI>circa princip.</HI></NOTE> as they might ju&s;tly do, make divers and &s;undry Laws from time to time for the ordering and regulating of ecce&s;ia&s;tical matters and eccle&s;ia&s;tical men, as is evident by divers Titles in the Code, <HI>De &s;umma Trinitate &amp; fide catholica; De &s;acro&s;anctis eccle&s;iis; De epi&s;copis &amp; clericis; De haereticis; Ne &s;anctum bapti&s;ma iteretur; De Apostatis; De Judaeis &amp; Coelicolis; De bis qui ad eccle&s;ias confugiunt,</HI> and the like. And it is as certain, that<NOTE N="c" PLACE="marg">As may be &s;een in the Hi|&s;tory of the Councel of <HI>Trent. Lib.</HI> 4. <HI>fol</HI> 332, 333. and <HI>lib.</HI> 7. <HI>fo.</HI> 790.</NOTE> there is a multitude of things, which the Popes and the Church of <HI>Rome</HI> have taken upon them to order and make Canons in, <HI>in ordine ad spiritualia,</HI> in order to the &s;pi|ritual welfare of mens &s;ouls, as they pretend, which are Tem|poral, and matters of civil intercour&s;e between man and man; as may be &s;een in the&s;e Titles, <HI>De pactis. De precario. De commodate. De Depo&s;ito. De emptione &amp; venditione. De locato &amp; conducto. De rerum Permutatione. De pignoribus. De Donationibus. De Te&s;ta|mentis. De Trenga &amp; Pace. De tran&s;actionibus. De Decimis, primi|tiis &amp; oblationibus. De jure Paetronatus. De spon&s;alibus &amp; ma|trimon&icirc;is. De &s;ucce&s;&s;ionibus ab inte&s;tato. De Homicidio voluntario vel ca&s;uali. De Raptoribus. De furtis.</HI> And divers others.</P>
<P>And all the&s;e things in their true nature are but temporal, and meer matters of Negociation or actings between man and man, though &s;ome of them, as Tythes, pre&s;entations to Benefices, Marriages, Te&s;taments, &s;ucce&s;&s;ions to Dead mens goods that have died inte&s;tate, &amp; other &s;uch like, are by the Church of <HI>Rome</HI> accounted &s;piritual, and through indulgence of divers Princes for the Honour of the Church, the juri&s;diction in them has been granted unto &s;piritual men. But that has proceeded rather from the favour of Princes, then from the<NOTE N="d" PLACE="marg">Bi&s;hop <HI>Bil&s;on</HI> &s;aith, That the Popes decrees, judgments, and executions in the&s;e ca&s;es, if claimed from Chri&s;t as things &s;piritual, and not granted by <HI>Cae&s;ar,</HI> are but open inva&s;ions of Princes rights, calling tho&s;e things &s;piritual, which indeed be civil and temporal. <HI>Chri&s;tian &s;ubject. part.</HI> 2. <HI>circa med.</HI></NOTE> nature of the things them&s;elves.</P>
<P>And who&s;oever does take a &s;urvey of the Canon Law in the Titles above mentioned, and in divers others, he &s;hall finde it mo&s;t taken out, and &s;peak the very language of the Civil Law: and &s;o much is noted and ob&s;erved all along by the very Glo&s;s and Canoni&s;ts them&s;elves. So that hereby the Canon Law ap|pears
<PB N="189" REF="101">to be of little u&s;e, when for the ordering of tho&s;e matters, we may be &s;upplied from the fountain it &s;elf, from whence the Canon Law has got it. But &s;uppo&s;e there were &s;uch a nece&s;&s;ary concomitancy between the&s;e two Laws, and that the u&s;e and practi&s;e of the one would be a &s;ure inlet to the other, as &s;ome do too fondly imagine; does it therefore follow, that the er|rours and &s;uper&s;titions of the Church of <HI>Rome</HI> mu&s;t needs creep in too? No more &s;urely, then it follows, that becau&s;e the old Law, that is full of Jewi&s;h rights and ceremonies, is joyned to the Go&s;pel, and that we read both together, we mu&s;t therefore pre&s;ently all become Jews.</P>
<P>And thus having &s;ati&s;fied all &s;cruples, that are u&s;ually made again&s;t the continuing the Civil Law within this Nation; I &s;hall but &s;hut up all in this conclu&s;ion: That &s;eing the Roman State, out of their wonderful wi&s;dome and great experience in go|vernment and the &s;everal affairs of the World, did devi&s;e a Law not onely proper for them&s;elves, but &s;o mainly u&s;eful to other Nations al&s;o; and that the indu&s;try of the learned working upon that foundation, has by method, order, Rules, expo&s;itions, illu&s;trations, and treati&s;es of all kinds, reduced it to a perfect and compleat Art and Science of Law, whereby the right skill and way of doing the pure&s;t and mo&s;t natural ju&s;tice, what&s;oe|ver the ca&s;e be, may be taught and known; And when it has from thence been ingrafted into our own and the other Univer|&s;ities of <HI>Europe,</HI> and made one of the three chief Sciences there, to which the re&s;t of the Arts &s;erve as it were as handmaids and &s;ervants; and all for the directing of men and Nations, how they &s;hould deal hone&s;tly and uprightly with one another; &s;ee|ing al&s;o that our very Martial affairs cannot proceed wel, nor be rightly regulated without it; and that tho&s;e Nations whom we have mo&s;t dealings and intercour&s;e withall, and to whom we &s;hould de&s;pi&s;e to be any whit inferiour, do not onely keep it, but al&s;o have no other profe&s;&s;ion of Law be&s;ides it, and do think their own private Laws to be very in&s;ufficient and lame without it; and that divers matters and cau&s;es among&s;t our &s;elves will remain without any Law at all, except the Civil Law be kept to order them, as it did before; La&s;tly, when the Civil Law comes to help and a&s;&s;i&s;t, and not to infringe or take away from the Municipal Law at all: If we &s;hall now abandon it, and ca&s;t it
<PB N="190" REF="102">out of our coa&s;ts, or which is all one, if we &s;hall reward and encourage it &s;o &s;lenderly, that no man will either think it worth his pains to &s;tudy, or his co&s;t to take any degree in it (to which pa&s;s it is mo&s;t vi&s;ibly come already) I &s;ay, if we &s;hall &s;till thus neglect or de&s;pi&s;e it either way; we &s;hall not onely &s;et light by the Policy and Wi&s;dome of the Romans, which all o|ther people are &s;tudious to imitate and come as near as po&s;&s;ibly they can; but we &s;hall al&s;o deprive our &s;elves of one excellent means to improve our knowledge and rea&s;on by; our ju&s;tice without it, being guided by illiterate and irrational principles, will be le&s;s &s;atisfactory to the people; our skill in the di&s;cipline of War, and in the Laws of Armes will be very defective; the very harmony of learning, that has &s;o long flouri&s;hed among&s;t us, will be di&s;&s;olved, when &s;o con&s;iderable a part as the Civil Law is broken off from it; other Nations will grow too wi&s;e and &s;ubtil for us, and will turn and winde us as they lift; and our ju&s;tice at home will be lamed, not being competent enough for the matters we deal in. The con&s;equence of all which will be, mi&s;chief at home, and di&s;honour abroad, which all good Patriots and lovers of their Countrey will lament to &s;ee.</P>
</DIV2>
</DIV1>
</BODY>
<BACK>
<DIV1 TYPE="index">
<PB REF="102">
<HEAD>An Index of the principal matters con|tained in this Book.</HEAD>
<LIST>
<HEAD>A</HEAD>
<ITEM>ARts and Sciences have their begin|ning, growing, falling, and ri&s;ing again. <HI>fol. 50</HI></ITEM>
<ITEM>Argument drawn from like ca&s;e is un&s;ufficient. <HI>fol. 41</HI></ITEM>
<ITEM>Admiralty Court proper to be mana|ged by Civilians onely. <HI>fol. 148</HI></ITEM>
<ITEM>Athens was the place from whence the Civil Law fir&s;t came. <HI>fol. 29, 103</HI></ITEM>
</LIST>
<LIST>
<HEAD>B</HEAD>
<ITEM>Bu&s;ine&s;s of other men, if I expend any money or care upon, though without their privity, the Civil Law will &s;ee me &s;atisfied. <HI>fol. 90</HI></ITEM>
<ITEM>Books of the Roman Laws when and where found, after that learning had lain neglected a long time. <HI>fol. 122</HI></ITEM>
<ITEM>Barbari&s;me will be let in, where the Civil Law is expell'd. <HI>fol. 134</HI></ITEM>
<ITEM>Books of the Roman Laws that were before <HI>Ju&s;tinians</HI> Collection, after that came forth, were quite lost. <HI>fol. 121</HI></ITEM>
</LIST>
<LIST>
<HEAD>C</HEAD>
<ITEM>Children, if no dispo&s;ition at all were made by the father, did equally divide the whole e&s;tate between them, by the Civil Law. <HI>fol. 15.</HI> Enjoyned &s;o to reverence their parents, that they could not &s;ue them without leave, nor be wit|ne&s;&s;es against them, nor marry without their con&s;ent, nor charge them with any criminal act. <HI>fol. 11</HI></ITEM>
<ITEM>Collu&s;ion odious by the Civil Law, and makes the act void. <HI>fol. 13</HI></ITEM>
<ITEM>The Civil Law agreeable not onely to the fir&s;t principles of nature, but al&s;o to others never &s;o much remote. <HI>fol. 21.</HI> made to rule the mightie&s;t Empire that ever was, and &s;ince propagated to other Nations. <HI>29.</HI> and how it came &s;o. <HI>30.</HI> it teaches men to be virtuous and inno|cent. <HI>48.</HI> though &s;ometimes in ob&s;cu|rity, yet never to be quite lo&s;t. <HI>50.</HI> it handles publick matters very &s;paringly. <HI>52.</HI> custome must agree with rea&s;on. <HI>36.</HI> cu&s;tomes are more acceptable to the people, then Laws are. <HI>ibid.</HI></ITEM>
<ITEM>Ca&s;es commonly all differ from one ano|ther. <HI>fol. 41</HI></ITEM>
<ITEM>The Civil Law containes the whole rea&s;on of man, both private, politick, and that of Nations. <HI>53, 63.</HI> it runs more in a convincing then commanding &s;tyle. <HI>65.</HI> mo&s;t conformable to the Divine
<PB REF="103">and eternal Law. <HI>66.</HI> grown to be the common authority to ju&s;tifie or condemn humane actions. <HI>67.</HI> it avoids niceties, and follows the true intent onely. <HI>67.</HI> it will not allow of &s;ome things, becau&s;e they are not worthy nor honourable, though o|therwi&s;e lawful. <HI>70.</HI> it is full of elemen|cy &amp; mildne&s;s. <HI>71.</HI> it prefers equity be|fore rigour. <HI>78.</HI> all per&s;ons of what con|dition &s;oever may read their duties in it. <HI>93.</HI> The fundamentals thereof fetcht from other &s;tates, the be&s;t governed that then were. <HI>fol. 103. 29</HI></ITEM>
<ITEM>Civil Law how it may be admitted in|to <HI>England</HI> without any inconvenience. <HI>fol. 108</HI></ITEM>
<ITEM>Civil Law almo&s;t distroyed, when the Roman Empire was invaded by barba|rous people, <HI>114. 116.</HI> the fir&s;t books thereof being lo&s;t, did much hurt and injury to tho&s;e that we have now, being but an extract of them <HI>121</HI> many of the books thereof to an infinite number peri&s;hed and were lost by the &s;ad fates that befel <HI>Rome, Berytus,</HI> and <HI>Con|&s;tantinople. 122.</HI> yet under <HI>Lotharius</HI> the Emperour it was again re&s;tored. <HI>ib.</HI> and afterwards grew &s;o great, that other learning was neglected, and all did &s;tu|dy that onely. <HI>123.</HI> The Edicts of Princes how &s;evere &s;oever, were not able to &s;uppre&s;s it. <HI>124.</HI> no where &s;o much in u&s;e as in <HI>Spain</HI> and <HI>France,</HI> though they have both made &s;harpe decrees again&s;t it. <HI>130.</HI> How it came into that forme, order, and method which now we &s;ee it in. <HI>167.</HI> what a multitude of writers there are in t' is Law. <HI>fol. 170</HI></ITEM>
<ITEM>Civil Law is not proper to govern eve|ry State by. <HI>fol. 140. 51</HI></ITEM>
<ITEM>Cities three above all others most fa|mous for the &s;tudy of the Civil Law, <HI>Rome, Berytus &amp; Con&s;tantinope. fol. 122</HI></ITEM>
<ITEM>Civil Law has not of it &s;elf any au|thoritative force to binde as a Law in any Nation, but is and mu&s;t be of force every where, as it contains true and &s;o|lid rea&s;on, to which all men are to &s;ub|mit. <HI>fol. 126. 138. 157</HI></ITEM>
<ITEM>Ca&s;es that do happen are to be all &s;et|led by &s;ome rule or other. <HI>fol. 145</HI></ITEM>
<ITEM>Civil Law perfected as it is at this day, very &s;ufficient to re&s;olve all ca&s;es that can happen. <HI>15. 53. 147. 155: 171.</HI> and is the true Art and Science of Law. <HI>fol. 166</HI></ITEM>
<ITEM>Canon Law and Civil Law have been at variance, which &s;hould &s;pread mo&s;t. <HI>163. 185.</HI> yet both of them have been admitted by Princes for &s;everal u&s;es. <HI>125. 185.</HI> that they are not in&s;epara|ble, as &s;ome do imagine. <HI>184.</HI> Canon Law is but the Civil Law applied to the u&s;e of the Church and church matters, and is in mo&s;t things the &s;ame with the Civil. <HI>163. 186</HI> orders divers things meerly temporal, under pretence of being spiritual. <HI>fol. 186</HI></ITEM>
<ITEM>Cau&s;es that were tried by the Civil Law before the government changed, why they &s;hould be tried by the &s;ame Law &s;till. <HI>178.</HI> and in the Epi&s;tle.</ITEM>
</LIST>
<LIST>
<HEAD>D</HEAD>
<ITEM>Defence legal ought not even in capi|tal
<PB REF="103">matters be denied a &s;ubject again&s;t his King. <HI>fol. 7</HI></ITEM>
<ITEM>Dead bodies not to be arre&s;ted, nor touch'd in their graves. <HI>fol. 80</HI></ITEM>
</LIST>
<LIST>
<HEAD>E</HEAD>
<ITEM>Exarchate of <HI>Ravenna,</HI> after <HI>Con|&s;tantinople</HI> was the &s;eat of the Empire, was &s;till governed by the Civil Law. <HI>fol. 118</HI></ITEM>
<ITEM><HI>England</HI> had the Civil Law read publickly in it, as &s;oon as it was re&s;tered in <HI>Italy</HI> by <HI>Lotharius. fol. 125</HI></ITEM>
<ITEM>Eccle&s;iastical men and Eccle&s;ia&s;tical matters have been and may be regulated by temporal Princes. <HI>fol. 186. 162</HI></ITEM>
<ITEM>Eccle&s;ia&s;tical men have through fa|vour of Princes, rather then of right, been &s;uffered to order &s;ome cau&s;es which are meerly temporal. <HI>fol. 186</HI></ITEM>
</LIST>
<LIST>
<HEAD>F</HEAD>
<ITEM>Fraud &s;o detested by the Civil Law, that &s;ometimes it did di&s;&s;olve the whole bargain, &s;ometimes it did enjoyn the whole true value to be paid, where one was deceived in more then half the worth. <HI>12.</HI> never &s;uffered to bring any advantage to the deceiver, or to any one el&s;e. <HI>13.</HI> mo&s;t dete&s;table in tho&s;e, that the Law does most priviledge, when de|ceived. <HI>fol. 13</HI></ITEM>
<ITEM>Forreign States not to be judg'd by Municipal Laws. <HI>fol. 146</HI></ITEM>
<ITEM>Forreign States, why they do judge &s;o much by the rules of the Civil Law. <HI>fol. 153</HI></ITEM>
</LIST>
<LIST>
<HEAD>G</HEAD>
<ITEM>Great men are not &s;uffered to a&s;&s;ume or protect the controver&s;ies or litigious &s;uits of others. <HI>fol. 62</HI></ITEM>
<ITEM>Guardians may husband, but not &s;ell the e&s;tates of their pupils. <HI>fol. 106</HI></ITEM>
<ITEM>Government was at fir&s;t without any Law at all. <HI>fol. 110</HI></ITEM>
<ITEM>Government being changed, the Laws &s;eldome remain the &s;ame. <HI>fol. 116</HI></ITEM>
<ITEM>Government how&s;oever changed, yet the Civil Law is of u&s;e. <HI>fol. 157. 176</HI></ITEM>
</LIST>
<LIST>
<HEAD>I</HEAD>
<ITEM>Ingratitude does make a free gift re|vocable from him that is ungrateful. <HI>fol. 84</HI></ITEM>
<ITEM><HI>Italy</HI> was &s;even times brought almost to utter de&s;olation in le&s;s then eighty years. <HI>fol. 114</HI></ITEM>
<ITEM><HI>Ju&s;tinians</HI> body of the Law was com|piled at <HI>Con&s;tantinople,</HI> and kept out of <HI>Italy 500</HI> years together. <HI>118.</HI> but prevailed altogether in the Ea&s;t. <HI>ibid.</HI></ITEM>
<ITEM><HI>Italy</HI> when it was po&s;&s;e&s;&s;ed by the Gothes and Lombards, &s;ome parts of the Civil Law were in u&s;e there &s;till. <HI>fol. 119</HI></ITEM>
<ITEM><HI>Ju&s;tinian</HI> is by &s;omes made in&s;trumen|tal in &s;uppre&s;&s;ing the old books of the Roman Laws, after his collection was fi|ni&s;hed, but without just ground. <HI>fol. 121</HI></ITEM>
</LIST>
<LIST>
<HEAD>K</HEAD>
<ITEM>Killing in ones own defence ought to receive no puni&s;hment. <HI>6.</HI> nor killing
<PB REF="104">by chance. <HI>ibid.</HI></ITEM>
<ITEM>A King by the Civil Law is no more ab&s;olved from the ob&s;ervation of the Law, nor has any loo&s;er power over the lives, liberties, or goods of his &s;ubjects, then by other Laws. <HI>fol. 19</HI></ITEM>
<ITEM>Kings being driven out of <HI>Rome,</HI> their Laws were never in u&s;e more. <HI>fol. 103</HI></ITEM>
</LIST>
<LIST>
<HEAD>L</HEAD>
<ITEM>Law, what properties it ought to have, and that chiefly it ought to agree with rea&s;on. <HI>1.2. &amp; &s;eq. 46.</HI> it is but a determination of the Law of Na|ture. <HI>4.</HI> it mu&s;t not onely not cro&s;s the first and chief principles of nature, but not &s;uch neither, as are any way, though remotely, depending on them. <HI>8.</HI> to be fairly and candidly interpreted, and without any fraud. <HI>13.</HI> may profitably containe the very maximes of Rea&s;on. <HI>21.</HI> common capacities no good judges of Laws. <HI>25.</HI> and who are, and what mu&s;t be con&s;idered to judge rightly of them. <HI>ibid.</HI> the &s;everity of them to be imputed to the demerits of men. <HI>26.</HI> though not &s;o rational as others, &s;ub|jects mu&s;t acquit&s;s in them, till they be altered. <HI>fol. 31</HI></ITEM>
<ITEM>Law of Nations is that which or|ders all affairs between Nation and Na|tion. <HI>59.</HI> to be known out of the Civil Law. <HI>fol. 61</HI></ITEM>
<ITEM>Laws of the twelve Tables the ground|work and foundation of the Civil Law. <HI>fol. 104</HI></ITEM>
<ITEM>Laws of all other Nations are gone and extinct with the States them&s;elves, excepting the Roman. <HI>fol. 110</HI></ITEM>
<ITEM>Laws of &s;ome people more famous then others. <HI>fol. 111</HI></ITEM>
<ITEM><HI>Lotharius</HI> the Emperour was the re|&s;torer of the Civil Law, when it was as it were extinct in Europe. <HI>fol. 122</HI></ITEM>
<ITEM>Law forreign not to be preferred be|fore the proper Law of the Countrey. <HI>fol. 125. 140. 144</HI></ITEM>
<ITEM>Law of no Nation &s;o &s;ufficient, but that another Law is needful. <HI>fol. 128. 144. 154</HI></ITEM>
<ITEM>Law of government proper for the &s;tate it &s;elf, is nece&s;&s;ary in every Nation. <HI>fol. 129. 140</HI></ITEM>
<ITEM>Laws of all Nations too imperfect for the multitude of ca&s;es that do happen. <HI>fol. 52. 144. 145</HI></ITEM>
<ITEM>Laws not to be mea&s;ured by their abu&s;e, or execution. <HI>fol. 28</HI></ITEM>
<ITEM>Legal matters are to be judg'd by Lawyers onely. <HI>fol. 25. 151</HI></ITEM>
<ITEM>Lawyers, none in forreign parts, but Civilians. <HI>fol. 152</HI></ITEM>
<ITEM>Lawyers of the latter age more learn|ed then tho&s;e before them. <HI>fol. 160</HI></ITEM>
<ITEM>Two Laws in one &s;tate not inconve|nient. <HI>fol. 120. 154. 182</HI></ITEM>
</LIST>
<LIST>
<HEAD>M</HEAD>
<ITEM>Municipal Laws mu&s;t be in every Nation. <HI>129. 140.</HI> and they to be pre|ferred before any other Law or rea&s;on. <HI>fol. 103. 125. 140. 143. 144</HI></ITEM>
<ITEM>Municipal Laws are too &s;hort and &s;canty, to take in all ca&s;es that do ari&s;e. <HI>fol. 144</HI></ITEM>
<PB REF="104">
<ITEM>Merchants, no fitting judges to trie and decide Sea cau&s;es. <HI>fol. 148</HI></ITEM>
<ITEM>Men how much they differ in their tempers, and &s;o in their actions. <HI>fol. 25. 41. 53. 145</HI></ITEM>
<ITEM>Monarchy is no loo&s;er government then any other. <HI>fol. 19</HI></ITEM>
<ITEM>Military que&s;tions to be regulated by the Civil Law. In the Epi&s;tle.</ITEM>
<ITEM>Municipal Laws have no degrees ta|ken, nor Lectures read in them, any where but in <HI>England. 152. 153.</HI> all that is good in them is taken out of the Civil Law. <HI>fol. 98. 164.</HI></ITEM>
</LIST>
<LIST>
<HEAD>N</HEAD>
<ITEM>Nations not &s;o abounding in all things, but that they do or may &s;tand in need one of another. <HI>fol. 155</HI></ITEM>
<ITEM>Nations abroad do mainly practi&s;e the Civil Law in matters between man and man. <HI>fol. 128. 133. 159</HI></ITEM>
<ITEM>Nations abroad are best &s;atisfied by justice done according to the rules of the Civil Law. <HI>fol. 134</HI></ITEM>
<ITEM>Nations in their dealing with one ano|ther mu&s;t have &s;ome common Law to guide them. <HI>fol. 59. 146. 155</HI></ITEM>
<ITEM>National differences not to be deba|ted but by the Law of Nations, and the rea&s;on of the Civil Law. In the Epi&s;t. and <HI>fol. 65.</HI></ITEM>
<ITEM>Natural Laws cannot be repealed. <HI>fol. 49. 174</HI></ITEM>
</LIST>
<LIST>
<HEAD>O</HEAD>
<ITEM>Offences, though the &s;ame, may be pu|ni&s;hed with more &s;everity in one State then in another. <HI>fol. 26</HI></ITEM>
</LIST>
<LIST>
<HEAD>P</HEAD>
<ITEM>Parents could not give away nor for|feit their whole e&s;tate from their chil|dren by the Civil Law, except in ca&s;e of Trea&s;on. <HI>fol. 9</HI></ITEM>
<ITEM>Proceedings legal how rationally or|dered by the Civil Law. <HI>fol. 15</HI></ITEM>
<ITEM>Pre&s;ident or example no rule to judge by. <HI>fol. 38. 65</HI></ITEM>
<ITEM>Promi&s;es, if &s;erious, though without con&s;ideration, are to be performed, by Civil Law. <HI>fol. 87</HI></ITEM>
<ITEM>Pope of <HI>Rome</HI> did make edicts again&s;t the Civil Law, thereby to advance the Canon Law the better. <HI>124.</HI> yet he does make u&s;e of the Civil Law. <HI>fol. 163</HI></ITEM>
<ITEM>Parents were bound to leave a certain part of their e&s;tate to their children. <HI>fol. 9. 141</HI></ITEM>
<ITEM>Penalties added to Laws, argue the power, but not the ju&s;tne&s;s of them. <HI>fol. 158</HI></ITEM>
<ITEM>Puni&s;hments for the &s;ame offence, may ju&s;tly be greater in one place then in ano|thes. <HI>fol. 26</HI></ITEM>
</LIST>
<LIST>
<HEAD>R</HEAD>
<ITEM>Rea&s;on was given to be mans guide in all his actions. <HI>2.</HI> it is a beame of the divine light. <HI>5.</HI> the principles there|of, all of them, not to be di&s;cerned by all. <HI>21.</HI> is &s;ometimes covered with fal&s;hood, and is much darkened by other natural corruptions. <HI>23.</HI> not a more deceitful
<PB REF="105">thing then it. <HI>24.</HI> then mo&s;t evident, when generally allow'd by all. <HI>30.</HI> not &s;o requi&s;ite in publick Laws as in pri|vate. <HI>33.</HI> private, politick, and that of Nations to be gathered out of the Ci|vil Law. <HI>fol. 53</HI></ITEM>
<ITEM><HI>Romes</HI> greatne&s;s and flouri&s;hing does demonstrate the excellency of the Laws wherewith it was governed. <HI>fol. 98</HI></ITEM>
<ITEM><HI>Rome</HI> was as it were the City of the whole World. <HI>fol. 98</HI></ITEM>
<ITEM>Romes greatne&s;s to be imputed rather to their Laws then Arms. <HI>fol. 99</HI></ITEM>
<ITEM>Romans very greedy of honour, in pur&s;uit whereof they did many gallant acts, and especially made &s;uch good Laws as they did. <HI>fol. 100</HI></ITEM>
<ITEM>Romes univer&s;al rule a special de&s;ign of God for the good of man; which was the cau&s;e that Chri&s;t was born under that government. <HI>fol. 102</HI></ITEM>
<ITEM>Romans when they conquered a nation, did not di&s;dain to take &s;uch Laws from them, as they found to be very hone&s;t and rational. <HI>fol. 107</HI></ITEM>
<ITEM>Roman Emperours &s;ome favourable to the Civil Law, others bitter enemies again&s;t it, and the profe&s;&s;ours of it. <HI>fol. 112</HI></ITEM>
<ITEM>Robbery in the High-way, or at Sea, or with Burglary, puni&s;hed by death at Civil Law. <HI>fol. 142</HI></ITEM>
<ITEM>Roman antiquities would have been better known, if the old books of the Ro|man Laws had been pre&s;erved. <HI>fol. 121</HI></ITEM>
<ITEM>Rea&s;on vulgar and ordinary not &s;uffi|ent to judge of legal matters. <HI>fol. 147. 154</HI></ITEM>
<ITEM>Romans through their univer&s;al &s;ove|reignty, dealt in greater variety of bu&s;i|ne&s;s, then any Nation. <HI>fol. 52. 155</HI></ITEM>
<ITEM><HI>Rome</HI> came under &s;everal formes of government, and yee &s;ome part of the Civil Law was under all of them. <HI>fol. 157</HI></ITEM>
<ITEM>Ran&s;ome paid for another, though with|out his directions, is recoverable from him. <HI>fol. 91</HI></ITEM>
<ITEM>Roman Laws do onely carry away the name of <HI>The Civil Law. fol. 166</HI></ITEM>
</LIST>
<LIST>
<HEAD>S</HEAD>
<ITEM>Society Civil what the benefits there|of be. <HI>fol. 56</HI></ITEM>
<ITEM>Succe&s;&s;ion to intestates goods, how re|gulated by the Civil Law. <HI>fol. 84</HI></ITEM>
<ITEM>Stoppage is an allowed way of payment at Civil Law. <HI>fol. 89</HI></ITEM>
<ITEM>Ship or goods when &s;aved by the pains or lo&s;s of another, the Law will allow &s;al|vage or other recompence for it. <HI>fol. 90</HI></ITEM>
<ITEM>Slavery and &s;ervitude out of u&s;e a|mongst Chri&s;tians. <HI>fol. 143</HI></ITEM>
<ITEM>Sea matters to be judg'd and tried by Civilians onely. <HI>fol. 148</HI></ITEM>
</LIST>
<LIST>
<HEAD>T</HEAD>
<ITEM>Torture, as it is allowed by Civil Law, ju&s;tified. <HI>fol. 72</HI></ITEM>
<ITEM>The&s;e by Civil Law puni&s;hed by pecu|niary &s;atisfaction. <HI>fol. 142</HI></ITEM>
</LIST>
<LIST>
<HEAD>V</HEAD>
<ITEM>&V;niver&s;ities of <HI>England,</HI> why they practi&s;e the Civil Law. <HI>fol. 161</HI></ITEM>
<PB REF="105">
<ITEM>&V;niver&s;ities of the World teach no other, nor give degrees in any other Law but the Civil Law. <HI>fol. 152. 153. 172.</HI></ITEM>
</LIST>
<LIST>
<HEAD>W</HEAD>
<ITEM>Wrecks by the Civil Law re&s;tored to the owners, and go not to the King. <HI>fol. 21.</HI></ITEM>
</LIST>
</DIV1>
<DIV1 TYPE="errata">
<HEAD>ERRATA</HEAD>
<P>The Reader is fir&s;t de&s;ired to take notice, that the Printer, by the ab&s;ence of the Author, and being not acquainted with the quotations of Civil Law, has from <HI>fol.</HI> 4, to <HI>fol.</HI> 23. in divers places in the Margent, erroneou&s;ly &s;et down the book, for the Law, printing <HI>lib.</HI> in&s;tead of <HI>l.</HI> which &s;tands for <HI>lege.</HI> When therefore the Law is quoted out of the <HI>Dige&s;ts</HI> or <HI>Code</HI> within that com|pa&s;s, in&s;tead of <HI>lib.</HI> read <HI>l.</HI> as in <HI>fol.</HI> 4. in the Margent litt. <HI>l.</HI> for <HI>lib.</HI> 1. r. <HI>l.</HI> 1.</P>
<P><HI>Fol.</HI> 4. in the marg. litt. <HI>n.</HI> for, <HI>Minfinus</HI> r. <HI>Min&s;ing.</HI> fol. 19. lin. 24. <HI>rigorem</HI> r. <HI>vigorem.</HI> l. 33. for, is not &s;o, r. <HI>is not to be.</HI> fol. 20. l. 22. for rules, r. <HI>rulers.</HI> fol. 71. in the mangent litt. <HI>r.</HI> for <HI>lib.</HI> 57. r. <HI>l.</HI> 57. fol. 75. l. 10. for need not, r. <HI>l need not.</HI> fol. 158. l. 20. for they, r. <HI>it.</HI> fol. 175. l. 33. for natural, r. <HI>unna|twal.</HI> fol. 181. l. 16. for as, r. <HI>us.</HI></P>
<TRAILER>The End.</TRAILER>
</DIV1>
</BACK>
</TEXT>
</GROUP>
</EEBO>
</ETS>
