called by that name imitated the ancient Druides of this Land but yet gone farther than they who following the Pythagoreans did not commit their Learning to Writing or rather the Lacedemonians who by the institution of Licurgus held all Law not written who as Plutarch reporteth exiguos illos pecuniarios contractus quique propter usum vitae subinde immutantur praestare censebat scriptis legibus non comprehendi neque immobilibus consuetudinibus illigari sed permittendum ut pro ratione temporis augerentur diminuerentúrve secundum probe institutorum hominum arbitrium yet our Law doth not give so much libertie to the Judges But yet not onely Politicians and Moralists but also the Civil lawyers do permit that in a Common-wealth the constitutions of Princes are to be interpreted according to the Judgment of Magistrates and Judges sometimes mitigated and according to incident diversities interpreted which cannot be alwaies committed to writing for it cannot be alwaies the same and this were rather to be wished than to be hoped for in our Laws and I would that he which finds this fault could finde a remedie and prescribe the reformation Controversies and ambiguities are so frequent not onely in this but in all sciences arts and professions that every day new particulars New particulars breed new questions are subjects of new questions especially in the Laws which spring out of the intricate forms of new Conveyances and such like invention of men And so long as man seeth but in aenigmate and per speculum as the Divines say of the Knowledg How uncertain man's knowledg is in Divine things and in other sciences of God and so long as by the rules of the perspectives that which is seen by reflection or refraction is never seen in or according to his true place so long and in such sort we must look for controversies and ambiguities in all professions which are indeed not so much or so sensibly felt in any art as in the Law because none other goeth so near mens Nothing goeth so near to mens thoughts as their loss of estate inward thoughts and conceipts as such doe whereon their estates and possessions are adventured therefore losers may have leave to speak but not untruth CHAP. V. Of the Books written of the Laws of England whereby the Knowledge thereof is chiefly obtained THE chief Knowledg by study Three sorts of writers of our Law of our Law doth consist in the Works of them which have written of the Law and they are of 3 sorts 1. The first whereof setteth down the Art and Rules of the same in a certain method such as is Glanvill Bracton and Britton who are ancient Authors wrote in Latine and did indeavour to reduce those Rules according to the titles of the Civil-lawes but most especially Bracton though these are ancient Authors yet they are now cited rather for ornament than for authoritie 2. Others have written of the Writers of the Nature and Precedents of Writs Precedents Rules and Natures of Writs which do lay the ground of every Action to procure judgment and execution thereon as the books of Entries with the Register and the two books grounded thereupon In this Fitz-herbert hath deserved specially well 3. A third sort of Writers of our Reporters of former Judged Cases Law there are which be those who write the particular and summary Cases that have received Determination and Sentence in the King 's jucicial Courts shewing how the Rules of Law were applied to those Cases or rather how these Cases were reduced to the Rules of Law both by the Counsellors that argued the same on both sides with probable Reasons confirming their opinions with authorities of former Judgments and also the Judges concluding their Sentences upon the same by the common square of Reason and Rules they have learned of the foregoing learned Judges Of this year- It is not known who compiled the first Annales and ancient year-Year-books latter sort of Writers called Reporters who they were that compiled the first and most antient Books of Reports is not certain for we have not their Names but since the time of King Edward the third there are some Works and Reports written of every King's Raign for before his time we have not any Volume at large now left and if any such were they are consumed through the injury Divers antient year-Year-books wanting of times or neglect or malice of such in whose custody they remained yet it should seem that in the raign of King Henry the 8. there were some more ancient Books or Reports of the Law Cases extant reported in the times of King Henry the 3. and Edward the first and Edw. the second for that Fitz-herbert Some Cases abridged of the Books now not extant who did reduce all the Cases of the Reports that were extant in his time under certain general Heads and Brook likewise who a little after him did set forth another Abridgement of the Law and Cases extant in his time adding more general Heads than Fitz-herbert had done yet both of them under divers of their titles abridge the pith of sundry Cases argued and most of them adjudged in those Kings raigns Howbeit the Volumes at large are not †We have now E. 2. and R. 2. What Year-books are yet extant now extant But of the Cases which were adjudged in the time of King Edw. the third there are four Volumes now extant Of King Richard the second his time there are not any Volumes but many Cases abridged as aforesaid Of the times of King Henry Long quinto the fourth and King Henry the fifth there is no Volume Of King Henry the sixt there are two great Volumes Of King Edw. the fourth one Volume One Volume of King Henry the seventh in the later end of whose raign the Reports do discontinue until the twelfth year of King Henry the eight And then they were recontinued untill the nineteenth of Henry the eight from thence again discontinued till the twenty sixt of Henry the eight at which time they were held on for two years that is twenty sixt and twenty seventh of Henry the eight which are the last Reports which we have save such as since have been revived by three or four worthy men whose private and voluntary diligence have for the publick good continued sundry Reports such as Mr. Kellaway who reported privately certain Cases in King Henry the seventh his time This Book and labour is now come to light by Mr. Justice Crooke his Care and Charge Also Mr. Brooke who did report diverse memorable Cases which happened when he was making of his Abridgment in the time of King Henry the eighth King Edward the sixth and Queene Mary reported them under apt titles in his Abridgement Then my Lord Dyer who when Of the late Reports of judged Cases he was a Student a Practicioner and a Judge observed many famous Cases which were published
Cases and in some Courts goeth out in the Kings name Also for the conventing and summoning of any man before the Judge greater Liberty is given by the Law of By the Civil Law one might not convent a Magistrate c. England than was antiently allowed by the Civil Law For by the Civil Law a man might not convent a Magistrate nor Judge nor one that was marrying a wife or a man that is performing the Funerals of his friend or a man that is pleading or following his Cause before a Judge nee parentem patronum parentes patroni in Jus saith the Praetor sine permissu meo ne quis vocet But by the None exempted from Suite by the Laws of England Laws of England none are exempted from Suite only Dukes Earles Barons and their Wives are priviledged that a man cannot attach or take their persons by Capias both for the honour of Nobility and because it is supposed they are never without some goods or land which may satisfy the Debts But if the action be against the Crown and Dignity or Contra pacem then for their violence their bodies also were subject to the Kings Writ The same Law is of Abbots and Priors The Civil Law allowed more exemptions from appearing to Suits than the Law of England But the Civil Law alloweth a greater Liberty and saith generally eas personas quibus reverentia praestanda est sine jussu Praetoris in Jus vocare non licet And yet although the Civil Law be more liberal in allowing exemptions from Citation and summoning of persons to appear than is our Law of England notwithstanding there is difference betwixt these Laws in the form of Suite and pleading upon divers process wherein these two Laws might perhaps correct each other whereof but a touch shall be given at this time and it may be more shall be said at the conclusion of this tract when the remedy and redress of some things conceived to be amiss in our Laws shall be spoken of The second point concerning the The second difference in the form of pleading difference betwixt our Laws of England and the Civil Laws being in the form of pleading and diversities of process For the first which is the form of pleading only they agree in this That both the Laws have had a special respect of nice observation and also have endured alteration in pleading For first the Civil Law after that in Rome the Decemviri had gotten the Law of the 12 Tables and that Interpretation grew frequent upon them then saith Pomponius Ex his legibus eodem fere tempore actiones compositae sunt quibus inter se homines disceptarent quas actiones ne populus ut vellet institueret certas solennesque esse voluerunt appellata haec pars juris legis actiones id est legitimae actiones and immediatly after saith he Omnium harum interpretandi scientia actiones apud Collegium pontificum erant c. Afterwards the Actions were as Livy reporteth and the Book of them gotten by C. Flavius Secretary to Appius Claudius was by him published and so communicated to the common people for which they bestowed on him the Tribuneship and other Magistracies they called that Book Jus Civile Flavianum Like to which also Sextus Aelius framed another which was called after his name Jus Aelianum These formulae Juris were used very strictly for saith Wesenbechius Olim ut omnia ordine recte procederent ne temere sineque causa quis ad jurgia lites conudaret impetrandum erat à praetore judicium qui actori postulatam à se actionem impertiebatur formulam agendi disceptandique pedaneo judici litigatoribus praescribebat So that then by the Civil Law the planitiffe did get his form of pleading from the Judge or Praetor which was afterwards upon experience of inconvenience altered by the rescript of Constantine which Justinian hath put in his Code likewise Theodosius and Valentinian hath done the same But the difference betwixt this and the pleading of our Common Law is That at no time was the A strict form of pleading required but not particularly prescribed by our Laws plaintiffe tied by the Common Laws of England to receive his whole form of pleading from the Judge although it be true that he is required to set down a strict form of pleading according to the Law upon his own peril Also another difference there is in Different forms of pleading in our own Law in several Courts and much more betwixt both the Laws the forms of pleading betwixt these two Laws First that our forms of pleading do differ according to the different forms of pleadings and declarations in several Courts which the Civil Law doth not Secondly and particularly the form of pleading in the Civil Law is in all actions personal because they do ex obligatione tanquam causa proxima competere actoribus in the Libel you must express the remote Cause and not only the next Cause as for example I lend mony to Titius now I may have an Action against him for it The remote cause is the lending the next and immediate of the Action is the obligatio as they call it Now if I Libel against Titius if I say Ago ad decem ad quae Titius est mihi obligatus This is naught saith Minsinger shewing it out of other The Civil Law in personal actions doth express the remote cause in the Libel but in real actions the next Cause authorities because the remote Cause is not in the Libel But if that had been in alone that had been good as Mutuam Titio decem peâ—o eum condemnari But in real Actions they go inversa via putting in always the next Cause but not of neccessity the remote but at the pleasure of the Advocate as Peto fundum istum à Sempronio quia ejusdem sum dominus fundi here the dominium is the Causa proxima and if the Advocate dare venture it he may say also sum dominus quia emi where the remote Cause is also contained A very nice difference which is not exacted in the form of pleadings How in our Law the remote and next Cause are both expressed in all actions in our Law But it is usual with us that in every Mans real personal and mixt Actions the Causa propinqua and remota are both put in the Declaration yet so that in the Common Pleas in the Writ commonly is expressed the next Cause and in the Declaration which containeth the Writ also the remote Cause but in some the Writ doth contain the other as in wast the Writ quare fecit vastum in terris quas tenuit ex dimissione ad exhaereditationemâ— here is the remote Cause But in Action of Debt praecipe quod reddat vj. libr. quas debet here is the next Cause and the Declaration contains the remote as Contract Bargain c. Neither is there any
since his death A little after him began Mr. Ploden who reported the speciall Cases which hapned from the second of King Edw. the sixt until the fifteenth of Queen Elizabeth they are but few Cases yet more fully reported than any before him Then the voluntary Reporter is the late Lord Coke who hath set forth thirteen Volumes of Reports Since that we have had Hobart Bulstrod Hutton and divers others especially Justice Croke who continues his Reports till the middle of the reign of King Charles the first There are besides these Reporters Writers of Rules and the application of them to Cases some other Writers of the Common Law whose Works are mixt partly of Rules and partly of Application of them to certain Cases of their own knowledg and collection such is the Book called The old Tenures and another commonly called Littleton's Tenures This Book serveth for an Introduction to the young Students in the Common-law of England as Justinian's Institutions doth for the beginners in the Civill-law Mr. Perkins did likewise draw certain Rules and Cases of some Titles of the Common law into a method but not of equall or like authoritie with Littleton's It is alledged by Ploden in his Epistle that in antient time as he had upon credit heard there were four Reporters of our Cases Reporters of the Law in former times authorized 2nd allowed by the King of Law which were chief men and had a yearly Stipend for their travell therein paid by the Kings of this Realm and they conferred together at the making and setting forth of the Reports It were to be wished that there were the like course still continued and allowance given So should we not have been bereaved of so many worthy and unrecoverable Cases and Judgments which are wanting and no doubt either perished or buried in silence by which means the Students are deprived of the Lights and Helps which they might have thereby CHAP. VI. Of Estates allowed by the Law of England HAving said somewhat of the Grounds of our Common-law of England it should seem proper in the next place to shew the Estates which the Common-law doth allow And that briefly for neither my Judgment in the Laws nor this place will fitly allow such aperfect and exact Discourse as may pass without exception of the Learned in our Laws or fully satisfie such as are well experienced in the same Onely that which shall be said is rather set down as a general view to consider the state and course of our Laws than as a platform and precise instruction thereof The Estates most absolute which Fee-simple of two sorts the law doth allow are either Fee-simple absolute of Land to a man and to his heirs and assignes for ever Estate of Fee-simple conditional now made an Estate in Fee-taile or Fee-simple conditional that is to him and the heires of his body general or special as it was at the Common-law which is accompted Fee-taile to his Heirs males or females according to the particular limitation This Estate of Fee-simple absolute How times have altered the state of Fee-simple and general is as ancient as our Common-law and perchance before the use of our Common-laws as they are now in ure for from the beginning there was giving and granting of Lands though not altogether in that exact and express form which later times have required because at the first if one man had given Lands to another for ever this had been held a sufficient grant to him and to his heires But now the law hath so expounded and distinguished that if the word Heirs be not in the grant it is no Fee-simple but an estate for life The estate in Fee-simple donditional was likewise for the general practice thereof introduced upon later considerations of which at the first there was no recovery left in the Giver nor remainder could be limited over but after issue had which was the condition annexed the Donee or he to whom the Gift was made had power to aliene the whole Land and Estate But afterwards this Estate in Fee-simple conditional was in the thirteenth year of King Edw. the first by a Statute made an Estate in tayle in the Donee and a Reversion in the Donor or giver And then the Donee might not by any Act barr his issues neither by forfeiture of offence as Treason nor by conveiance though never so strong as Fine c. Thus we see how the greatest and most beneficial Estate of Fee-simple which the Common-law doth admit hath received his degrees his limitation and alteration according as time increase of knowledg in the Laws and of Conveyances and Assurances amongst men have thought it meet the like alterations we may finde in other Estates of least extent and benefit in the Laws Where mention was first made of the state of Fee-simple to be very antient though not always in one expresse form It is true with a several respect of times in antiquitie For among the Saxons Fee-simple was Fee-simple in use in the Saxons time and that by the name of Land to a man and his heires as it appeareth in the Saxon Laws of Alfred where it is said qui terram habuerit per scripturae seriem the Saxon word is boclande sibi relictam ab haeredibus ad alios alienandi potestas ei non esto siquidem praesentibus cognatis coram rege aut episcopo scriptura aut testimonio potentum omni alienatione interdixisse illum qui prius concessit talemque ei imposuisse legem cum primo dederit out of which may be noted both the Fee-simple absolute and conditional were then allowed and in use And also Fee-simple conditional also known in the Saxons time a man may see that in antient time how a gift to a man and his heires and a gift to a man for ever were all one For when Erle Godwine came to the Bishop of Canterbury to get the mannor of Boseham in Sussex he first jestingly said to him as Mr. Camden saith out of Mapaeus Da mihi Boseham The Bishop as it should seem scarcely knowing his meaning answered him Do tibi Boseham whereupon without any more livery the Erle took and had possession thereof to him and to his heirs by which also we may see two things that the word heirs was not then of absolute necessitie in a grant to create a Fee-simple and that then such strict words and forms of Conveyances were not required as of later times to passe Estates of Lands There are other Estates of inferior degree and dignity allowed by the Common-law whereof some are accompted Inheritances and Freehold Others but uncertain and not for a prefixed season or term Of the first sort is an Estate for life Estates for life two-fold and that two-fold either created by the party as by Lease c. or else created by the Law as Tenant by the Curtefie of England by having issue of a wife Inheritrix or