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CHAP. XCI.
Of the Law in general.
WE come now to the knowledge of the Law, that onely pretends to judge and discern be∣tween True and False, Equity and Iniquity, Right and Wrong. The chief Heads now-a-days are the Pope and the Emperour, who boast that they have all Laws written in the Cabinets of their Brests; whose Will is Reason, and who by their own Arbitrary opinions rule and govern all Sciences, Arts, Writings, Opinions, and whatever other Works of men. For which cause Pope Leo commanded that no person should dare to dispute or justifie any thing in the Church, but by the Authori∣ty of the holy Councils, the Canons and Decretals, of which the Pope is the Head. Neither is it lawful for us to make use of the Interpretations of any the most holy and learned Divines, but onely so far as the Pope permits, and authorizes by his Canons. And the Ca∣non further commands, that no Book or Volume what∣soever shall be received by any Divine, but what is first approved of by the Canons of the Pope. The same Authority the Emperour claims over Philosophy, Phy∣sick, and all the other Sciences, giving no countenance
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to any Art, till first all'owed by the skill of his Law, to which all sorts of Arts and Sciences compar'd, are of no use or value. This makes Vlpian say, The Law is King of all humane and divine things; whose Office it is, as Modestinus saith, to command, forbid, punish, permit; than which there are no greater marks of Superiority. Pomponius defines the Law to be, the invention and gift of God, and the Maximes of Wise-men. Because all the ancient Law-givers, that their Laws might gain the greater reverence among the Vulgar, feigned that the Laws they wrote were clictated to them by the Gods. Thus Osiris among the Aegyptians seigned to have re∣ceived his from Mercury, Zoroastes among the Persians from Oromazus, Chariundas among the Carthaginians from Saturn, Solon among the Athenians from Minerva, Zamolxis among the Scythians from Vesta, Lycurgus from Apollo, Numa from the Nymph Egeria. Thus you see how this knowledge of the Law arrogates to it self a Power and Soveraignty over all the Sciences and Arts, exercising a Tyranny over them, and advan∣cing it self above all other Sciences, as the First-born of Heaven, despises and contemns all the rest, being it self constituted out of the frail and infirm Positions and O∣pinions of men, of all things the most slender, and sub∣ject to alteration upon every change of State, Time, or Prince, and which deduces its original from the sin of our First parents, the cause of all our evils. From whence also the corrupt Law of Nature, which is cal∣led Jus Naturale, first descended; of which behold the chief Maximes: Keep off force by force. Break faith with him that breaks faith. To deceive the deceiver is no deceit. A deceiver is not bound to a deceiver in ought. A fault may be recompensed by a fault. Those that deserve ill, ought to enjoy neither justice nor faith. No injury can be done to the willing. He that buys may deceive himself. A thing is worth so much as it may be sold for. A man
Page 318
may provide for his safety with the damage of another. No man is oblig'd to impossibilities. Thou or I are to be ru∣ined, it is better that thou be ruin'd than I. With many more of the same nature. Moreover, the Law of Na∣ture is, Not to hunger, not to thirst, to suffer cold, or destroy ones self with Watching and Labour: which overthrowing all works of Piety and Penance, establi∣shes Epicurean Pleasure for Supreme Happiness. The first occasion of War, Bloudshed, Bondage, Separation of Dominions, was also the first occasion of the Law of Nations: after that, came the Civil or Popular Law, which every Nation appro•priates to it self; From whence have arisen so many Contentions among men, that there are not words enough to express the subjects and matter which they contain. For seeing that men were so prone to quarrel, it was necessary that there should be an observation of Justice according to Law, that so the arrogancies of Impiety might be suppres∣sed, and that Innocence might be in safety amongst the Wicked, and that the Good might live quietly among the Bad: these are the grounds of Law, of which there have been Legislators innumerable. The first whereof was Moses, who gave Laws to the Je'ws; at which time Cecrops gave Laws to the Algyptians: after whom, Pheroneus gave Laws to the Greeks: Mercury Trisme∣gist gave Laws to the Aegyptians; Draco and Solon to the Athenians; Lycurgus to the La•edemonians. Pa∣lamedes first made Military Laws for the governing of Armies. Romulus first of all gave Laws to the Ro∣mans, which were called Curiatae. After whom, Numa invented the Ceremonies of their Religion; and all the rest of the succeeding Kings added their particular Laws, which being all vvritten afterwards in the Books of Papyrius, were afterwards called the Papy∣rian Laws. After that came the Laws of the Twelve Tables, the Flavian Law, the Helian Law, the Horten∣sian
Page 319
Law, the Honorarian Law, the Praetors Law; De∣crees of the Senate, Edicts of the People, Law of the Magistrates, and Custom, and the power of Law∣giving given to every Supreme Prince. I pass over all those Lawyers, good part whereof are repeated in the second Law of the original of Right. Among those who endeavoured to reduce the Civil Law into a Vo∣lume, the first was Cneus Pompey, next Caesar; but both were prevented by Civil War and untimely death. At length Constantine renewed those old Laws; and Theo∣dosius the younger reduced them into one Volume, which he called a Codex: and after him Justinian set forth the Codex now in use. But all the authority of the Civil Law rests in the People and Princes; neither is there any other Civil Law but what the people esta∣blish by Common consent. Hence Julian avers, That the Laws binde us for no other reason, but onely for that they are received by the Common Consent of the people, who by universal consent transferred the power and whole au∣thority upon the Prince; so that whatsoever is ordained by the consent and approbation of the Prince and People, has thereupon, partly by Constitution, partly by Custom, the force of a Law, though it be an Errour or a Falshood: for Vniversal Errour makes a Law, and matter adjudged be∣comes Truth. Which Vlpian teacheth us in these words: He ought to be taken for a free-man born, who is so ad∣judged by Sentence, though he were onely manumitted; because a matter once adjudged, is to be taken for Truth. The same person tells, that one Barbarius Philip∣pus, who was a fugitive at Rome, demanded the Prae∣torship, and had it: and when he came to be known who he was, yet was it taken for granted, that all what∣soever he had done by vertue of his Office should stand good, though he were but a servant. The same per∣son confesses, that no reason can be given for all the Decrees and Laws which were set forth by our Ance∣stors.
Page 320
Whence we finde, that all the Wisdom of the Civil Law depends upon onely Will, and Opinions of men; no other Reason urging, than the Regulation of Manners, conveniency of Converse, power of the Prince, or force of Arms. So that if the Law pre∣serve the Good, and punish the Bad, 'tis then a just Law; if otherwise, the worst of evils, by reason of the evils ensuing, either through the Toleration, Appro∣bation, or Negligence of the Supreme magistrate. And it was the Opinion of Demonax, That all unprofitable Laws were superfluous, as being intended neither for the Good nor the Bad; since the former want them not, the later are never the better for um. Furthermore, seeing that Cato confesses, that there is no Law that can be adapted to all Emergencies, but such where Equity and Rigor are at a continual variance; and that Aristo∣tle also calls Equity the Correction of a just Law, wherein that part is defective, which was generally agreed to; doth it not hence plainly appear, that all the force of Law and Justice depends not so much upon the Law, as upon the Equity and Justice of the Judge?
Of the Law in general.
WE come now to the knowledge of the Law, that onely pretends to judge and discern be∣tween True and False, Equity and Iniquity, Right and Wrong. The chief Heads now-a-days are the Pope and the Emperour, who boast that they have all Laws written in the Cabinets of their Brests; whose Will is Reason, and who by their own Arbitrary opinions rule and govern all Sciences, Arts, Writings, Opinions, and whatever other Works of men. For which cause Pope Leo commanded that no person should dare to dispute or justifie any thing in the Church, but by the Authori∣ty of the holy Councils, the Canons and Decretals, of which the Pope is the Head. Neither is it lawful for us to make use of the Interpretations of any the most holy and learned Divines, but onely so far as the Pope permits, and authorizes by his Canons. And the Ca∣non further commands, that no Book or Volume what∣soever shall be received by any Divine, but what is first approved of by the Canons of the Pope. The same Authority the Emperour claims over Philosophy, Phy∣sick, and all the other Sciences, giving no countenance
Page 317
to any Art, till first all'owed by the skill of his Law, to which all sorts of Arts and Sciences compar'd, are of no use or value. This makes Vlpian say, The Law is King of all humane and divine things; whose Office it is, as Modestinus saith, to command, forbid, punish, permit; than which there are no greater marks of Superiority. Pomponius defines the Law to be, the invention and gift of God, and the Maximes of Wise-men. Because all the ancient Law-givers, that their Laws might gain the greater reverence among the Vulgar, feigned that the Laws they wrote were clictated to them by the Gods. Thus Osiris among the Aegyptians seigned to have re∣ceived his from Mercury, Zoroastes among the Persians from Oromazus, Chariundas among the Carthaginians from Saturn, Solon among the Athenians from Minerva, Zamolxis among the Scythians from Vesta, Lycurgus from Apollo, Numa from the Nymph Egeria. Thus you see how this knowledge of the Law arrogates to it self a Power and Soveraignty over all the Sciences and Arts, exercising a Tyranny over them, and advan∣cing it self above all other Sciences, as the First-born of Heaven, despises and contemns all the rest, being it self constituted out of the frail and infirm Positions and O∣pinions of men, of all things the most slender, and sub∣ject to alteration upon every change of State, Time, or Prince, and which deduces its original from the sin of our First parents, the cause of all our evils. From whence also the corrupt Law of Nature, which is cal∣led Jus Naturale, first descended; of which behold the chief Maximes: Keep off force by force. Break faith with him that breaks faith. To deceive the deceiver is no deceit. A deceiver is not bound to a deceiver in ought. A fault may be recompensed by a fault. Those that deserve ill, ought to enjoy neither justice nor faith. No injury can be done to the willing. He that buys may deceive himself. A thing is worth so much as it may be sold for. A man
Page 318
may provide for his safety with the damage of another. No man is oblig'd to impossibilities. Thou or I are to be ru∣ined, it is better that thou be ruin'd than I. With many more of the same nature. Moreover, the Law of Na∣ture is, Not to hunger, not to thirst, to suffer cold, or destroy ones self with Watching and Labour: which overthrowing all works of Piety and Penance, establi∣shes Epicurean Pleasure for Supreme Happiness. The first occasion of War, Bloudshed, Bondage, Separation of Dominions, was also the first occasion of the Law of Nations: after that, came the Civil or Popular Law, which every Nation appro•priates to it self; From whence have arisen so many Contentions among men, that there are not words enough to express the subjects and matter which they contain. For seeing that men were so prone to quarrel, it was necessary that there should be an observation of Justice according to Law, that so the arrogancies of Impiety might be suppres∣sed, and that Innocence might be in safety amongst the Wicked, and that the Good might live quietly among the Bad: these are the grounds of Law, of which there have been Legislators innumerable. The first whereof was Moses, who gave Laws to the Je'ws; at which time Cecrops gave Laws to the Algyptians: after whom, Pheroneus gave Laws to the Greeks: Mercury Trisme∣gist gave Laws to the Aegyptians; Draco and Solon to the Athenians; Lycurgus to the La•edemonians. Pa∣lamedes first made Military Laws for the governing of Armies. Romulus first of all gave Laws to the Ro∣mans, which were called Curiatae. After whom, Numa invented the Ceremonies of their Religion; and all the rest of the succeeding Kings added their particular Laws, which being all vvritten afterwards in the Books of Papyrius, were afterwards called the Papy∣rian Laws. After that came the Laws of the Twelve Tables, the Flavian Law, the Helian Law, the Horten∣sian
Page 319
Law, the Honorarian Law, the Praetors Law; De∣crees of the Senate, Edicts of the People, Law of the Magistrates, and Custom, and the power of Law∣giving given to every Supreme Prince. I pass over all those Lawyers, good part whereof are repeated in the second Law of the original of Right. Among those who endeavoured to reduce the Civil Law into a Vo∣lume, the first was Cneus Pompey, next Caesar; but both were prevented by Civil War and untimely death. At length Constantine renewed those old Laws; and Theo∣dosius the younger reduced them into one Volume, which he called a Codex: and after him Justinian set forth the Codex now in use. But all the authority of the Civil Law rests in the People and Princes; neither is there any other Civil Law but what the people esta∣blish by Common consent. Hence Julian avers, That the Laws binde us for no other reason, but onely for that they are received by the Common Consent of the people, who by universal consent transferred the power and whole au∣thority upon the Prince; so that whatsoever is ordained by the consent and approbation of the Prince and People, has thereupon, partly by Constitution, partly by Custom, the force of a Law, though it be an Errour or a Falshood: for Vniversal Errour makes a Law, and matter adjudged be∣comes Truth. Which Vlpian teacheth us in these words: He ought to be taken for a free-man born, who is so ad∣judged by Sentence, though he were onely manumitted; because a matter once adjudged, is to be taken for Truth. The same person tells, that one Barbarius Philip∣pus, who was a fugitive at Rome, demanded the Prae∣torship, and had it: and when he came to be known who he was, yet was it taken for granted, that all what∣soever he had done by vertue of his Office should stand good, though he were but a servant. The same per∣son confesses, that no reason can be given for all the Decrees and Laws which were set forth by our Ance∣stors.
Page 320
Whence we finde, that all the Wisdom of the Civil Law depends upon onely Will, and Opinions of men; no other Reason urging, than the Regulation of Manners, conveniency of Converse, power of the Prince, or force of Arms. So that if the Law pre∣serve the Good, and punish the Bad, 'tis then a just Law; if otherwise, the worst of evils, by reason of the evils ensuing, either through the Toleration, Appro∣bation, or Negligence of the Supreme magistrate. And it was the Opinion of Demonax, That all unprofitable Laws were superfluous, as being intended neither for the Good nor the Bad; since the former want them not, the later are never the better for um. Furthermore, seeing that Cato confesses, that there is no Law that can be adapted to all Emergencies, but such where Equity and Rigor are at a continual variance; and that Aristo∣tle also calls Equity the Correction of a just Law, wherein that part is defective, which was generally agreed to; doth it not hence plainly appear, that all the force of Law and Justice depends not so much upon the Law, as upon the Equity and Justice of the Judge?