face in an aged Matron And in their writinges wherein their chiefe purpose and addresse was to search out the truth of doubtfull matters and to deliuer it to posteritie there could be nothing worse then a curious kind of stile which is vsed commonly of them that seeke to flatter to dissemble and to bewitch with a familiar kind of perswasion the common people with whom such flowers are of more accompt then substanciall fruit All kinde of things is not conuenient for all sorts of men Rethoricke I graunt is a pleasant thing and full of delite But in professors of grauitie neither comely nor commendable Who would not allowe a tripping gate nimble handes glauncing eyes in a Stage-plaier or dauncer But in an auncient Citizen or graue Philosopher who would not dislike them blame them abhorre them If we see a young Damesell pleasant and talkatiue we doe not reproue it in her but if we finde that in a Matron wee loath and condemne it And truely from the purpose and practise of graue men there shoulde bee nothing more different then that which sauoreth of too much daintinesse or curiosity Alcibiades his shooe is not fit for Socrates his foote and it is not conuenient for graue men to celebrate the feast of Bacchus in the Temple of Vesta there is great distance betwixt the style of the Courtier and the professor of the Law For if the Courtier should neglect delicate speech he should be no good Courtier so if the professor of the Law should affect it he should not speake like a Lawier If Pythagoras could haue lyued without meate he would not haue eaten so much as herbes and if he could haue expressed his meaning by signes or gesture or by any other meane then speech he would neuer haue spoken so loath was he to offend in superfluitie Therefore the writers of the Law are not to be reprooued for doing that which if they had done they might iusty haue bin reprooued Cicero when he treateth of matters of Law speaketh like a Lawyer and a Lawyer must speake as the Law doth speake Therefore Baro saith well the writers of the Law would not haue left to posteritie so many Law-bookes if they had affected a choice phrase of speach And surely if when the Latine tongue did most florish the Caesars and Cicero him selfe did not vse any gorgeous and fyled kind of speech in matters of Law shall we desire it of Bartolus Bracton Britton and Glanuill when eloquence was in the Ecclipse or wayne exceedingly decayed Varro saith that by the diuerse mixtures of people nations olde wordes grow out of vse and are changed and new do take place How can it then be but that the Common Law should haue harsh obscure difficult strange tearmes by the commixtion of the seueral languages of the Saxons Danes and Normans the authors of the same Polybius reporteth that there was such alteration of the Romane language soone after the expulsion of their king vntil his time that they which were most skilfull of antiquitie could hardly vnderstand a great part of the words which doubtles was a great impeachment to learning and knowledge If the receiued wordes of the Law should be altered it may well be presumed that many auncient bookes of the Ciuill law the old yeare bookes would in short time be hardly vnderstood And I am fully perswaded that if the auncient Tearmes of the Law should be changed for more polite and familiar nouelties the new tearmes would be nothing so emphaticall and significant as the olde The wordes of the law may be compared to certaine Images called Sileni Alcibiadis whose outward feature was deformed ouglie but within they were full of iewels precious stones so the wordes of the Law though they be rude in sound yet are they preignant in sense But some perhaps will say mine eares cannot tollerate such an vnpleasant sound and so confused a style O delicate fellow when you go to the Theater or dauncing Schoole repose your selfe wholy in your eares but when you come to heare matters of weight handled discussed rest not vpon your senses but vpon your mind vnderstanding Alcibiades was more moued by the naked speech of Socrates then by the laboured eloquence of Pericles But this Rhetoritian wil replie I confesse the Law to be of it selfe a reuerend excellent thing but it would be no whit worse if it were more finely and politely deliuered Who wil deny that which is comely of it selfe to be made more comely if other thinges be added to adorne it To aunswere this briefly and plainly many things there be to which if you should adde any other thing you should take away their grace and beawtie They be of their owne nature in so good estate that you can not change them but you must needs make them worse A Tombe or pillar of marble if it should be painted with any colour should lose the former grace be a great deale worse a beawtifull face is often disgraced by a needles ointment so it is of other things which of them selues are fayre comely the thing which is added hydeth that which it findeth sheweth that which it bringeth these thinges which ar handled in the law are not adorned by the varnishing of art but are obscured by it And it is not conueniēt in such a serious matter to dally with tropes figures nor to riot with superabundāce of words nor to florish with eloquēce diaperd phrases But yet he will further obiect Though it do not belong to the professors of the Law to speake and write figuratiuely yet surely it behoueth them to speake and write in good congruitie which notwithstanding they do not I would gladly know what congruitie it is which Curiositie doth require The fine Rhetorician wil say absurda consuetudo disrumpenda est The Lawyer he will say vsus contra rationem annullandus est he will say that this is not Romaine latine it is most true therefore will he conclude it is not well spoken nor congrue the argument halteth The Moscouite will speak of a thing after one sort the Fleming after an other sort will vtter the same thing neither of them speake in Latine but in their owne language do they not therefore speake right yes they speake right and congrue in their owne language and so do the Lawyers in their owne dialect and language proper to their Art Doth any man thinke that these wordes Bellum Exul Sylua Proscriptio manus iniectio were vnknowen to the auncient writers of the Law Yet sometime they doe not vse these but in stead of them they say Guerra Bannitus Boscus Attinctura Arrestū But it is conueniēt that they should vse these latter wordes being proper to their Art or science Neither is it meete that they should change them for the wordes of a strange language Wherefore Scaliger doth vpon good cause dispraise the Graetians
Liuie Sigonius against Plutarche and Xiphilinus the interpreter and abridger of Dio against his authour Dio reporteth a prodigious miracle which Xiphilinus altereth setting a new face vpon it and discrediting his authour Goe to the Grammarians you shall find seuen great Masters at variance about this one word Anticomarita Goe to the Philosophers there is great dissention and a diametrical repugnance of opinions amongest them there you shall see the Parepatetikes against the Academikes the Epicures against the Stoikes the Cyrenaikes against the Cynikes the Nominalles against the Reals the Carpentarians against the Ramistes Goe to the Schoole of the Phisitions you shall haue the like disagreement Galen against Hipocrates Auenroes against Galen Auicenna against Auenroes Paracelsus against them all and Erastus against him Will any man nowe condemne Historie Grammer Philosophie and Phisicke If not then it is euident that an Art or Science is not to bee reprooued because the writers thereof doe in opinion or argument disagree No more is the Law to be dispraised but rather to be liked for the varietie of opinions in it For as by the collision or beating together of Flint and Iron fire doth appeare So the truth is disclosed and made manifest by the conflict of reasons A man shall more easilie and discreetely iudge of thinges saith Aristotle If he haue hearde the reasons on both sides contending like aduersaries But if some men be more contentious in points of Law then others that is the fault of the men but not of the art The knowledge of the Law saith Cicero is not Litigious but the ignorance thereof And if a man should deferre his studie of any art or science vntill the writers thereof did fully and vnitedly consent It woulde bee as vaine a thing as if a man shoulde purpose his iourney from London to Yorke but shoulde make a vowe not to begin his iourney vntill all the clockes in London shoulde strike together Now that I haue remoued out of the way all such obiections as might be occasion of impediment and interruption to the student I thinke it not beside the purpose to prescribe and commend vnto him some speciall writers of the Law in the reading of which he may with aduantage and ouerplus bestowe his paines He that frameth himselfe to the studie of the Ciuil law may very profitably imploy his paines in reading of the Code Nouellaes and Pandectes which are necessarie for the profession Of the auncient writers I thinke these are most conuenient to be read Bartolus Baldus Paulus de castro Philippus Decius Alciatus Zasius Of the latter writers Budaeus Duarenus Cuiacius Hotomannus Donellus and amonge these yea aboue these him whom I lately named Albericus Gentilis who by his great industrie hath quickned the dead bodie the Ciuil Law written by the auncient Ciuilians and hath in his learned labours expressed the iudgement of a great state-man the soundnes of a deepe Philosopher and the skill of a cunning Ciuilian Learning in him hath shewed all her force and he is therefore admirable because he is absolute The common Lawe is for the most part contained in the bookes called the Annals of the Law or yere Bookes all which are to be read if the student will attaine to any depthe in the Law In them he shall see notable arguments well worthy of paines and consideration The two late reporters are Ma. Plowden and Sir Iames Dyer who by a seuerall and distinct kind of discourse haue both laboured to profit posteritie Some humors doe more fancie Plowden for his fulnes of argument and plaine kinde of proofe others doe more like Dyer for his strictnes and breuity Plowden may be compared to Demosthenes and Dyer to Phocion both excellent men of whome Plutarche reporteth that such things as were learnedly wittily copiouslie and with admiration dilated and deliuered at large by Demosthenes were shutte vp in fewe wordes compendiouslie recited and with admiration handled of Phocion There be certaine auncient writers of the Law namely Bracton Britton and Glanuille whom as it is not vnprofitable to reade so to relye vpon them is dangerous for most of that which they doe giue foorth for Law is nowe antiquated and abolished their bookes are monumenta adorandae rubiginis which bee of more reuerence then aucthoritie Ma. Fortescue in his writing sheweth a sharpe iudgement and in this is exquisite and artificiall that where hee endeuoreth to bee plaine he spareth not to be profound For he writ to a King who desired to haue intricate things plainly opened Ma. Littleton layde a sure foundation of the Law and by his owne booke hath deserued more praise theÌ„ many writers of note and name by their ample volumes out of the great bookes of the Lawe hee gathered the most speciall cases which were either generally agreed vpon or by the Court awarded to be Law or else in all ages receiued for positiue rules For very few there be throughout his whole treatise which may not be signed with one of these three markes his booke doubtlesse is of such singularity that Littleton is not now the name of a Lawyer but of the Law it selfe M. Fitzherbert must needes be commended for great paines and for well contriuing that which was confusedly mingled together in many yeere Bookes but he was more beholden to nature then to art and whilest he labâ—red to be iudiciall he had no precise care of methodicall pointes but as hee was in conceit slowe so hee was in conclusion sure and in the treatises which bee of his owne penning hee sheweth great iudgement sound reason much reading perfect experience and in the whole conueyance of his discourses giueth sufficient proofe that hee sought rather to decide then to deuise doubtful questions Mast Brooke is more polite and by popular and familiar reasons hath gained singuler credite and in the facilitie and compendious forme of abridginge Cases hee carieth away the garland But where Ma. Fitzherbert is better vnderstood he profiteth more and his Abridgement hath more sinewes though the other hath more vaines but I am â—oath to make them countermates and therefore leaue the iudgement thereof to others In Ma Parkins his booke be many commendable thinges deliuered by a readie conceit and pleasant methode many excellent cases which sauour of great reading and good experience his Treatise is to young Students acceptable and preciouse to whâ—m his verie faultes and errours be delightfull but it might bee wished that hee had written with lesse sharpenesse of witte so hee had discoursed with more depth of Iudgement For hee breaketh the force of weightie pointes with the shiuers of nice diuersities yet many thinges are to be allowed 〈◊〉 him many to be praised so that the readeâ— be carefull in his choice wherein he was too carelesse In Mast Stamforde there is force and weight and no common kinde of stile in matter none hath gone beyonde him in methode none hath ouertaken him in the order
testament a man ob impedimenti necessitatem is inforced to write but now the vse of codicills or testaments are without any necessitie confounded which is contrary to lawe for a â—odicill ought to serue necessitie not a rash onset Cognatio kindred it is deuided into three parts 1. into parents 2. into childreÌ„ 3. into cosins Parents are they of whom we are begotten as father mother grandfather grandmother and these which are in degree aboue them Children are they which are begotten of our bodies as sonne daughter grandchild and such as he vnderneath them Et nati natorum et qui nascentur ab illis Cosins are they which haue neither begotten vs nor bin begotten of vs but haue a common roote and originall with vs as brother sister vncle aunt and such as do discend from them Colludere is in fraudem tertij conuenire Commenda the custodie of a Church committed and commended to some Commodare is to graunt the vse of some thing for a certain time there is difference betwixt commodare mutuo dare because coÌ„modare is to lend to haue the same againe as bookes apparel and such like but mutuo dare is to trust hoping to haue the like againe as money corne salt spices and such like Compromissum is the power that is giuen to the arbitrator so called because both the parties doe promise to obey the opinion of the Iudge therfore he is called compromissarius index to whom the matter is referred Communitas a comminalty is societas hominum communi lege viuentium Conditio when a thing dependeth super casum incertum which may tende eyther ad esse or ad non esse Confessio is double either iudicial or extraiudicial iudiciall is that which is done before the Iudge extraiudicial which is done in presence of good and honest men Consentire is to meete in one opinion Constitutiones Iudgements rules and awardes concerning seueral matters whereupon this verse hath bin made Quatuor ex verbis virtutem collige legis Permittit punit imperat atque vetat Controuersum ius is that which is on both sides doubtful certum ius is that which is certainly determined is called positiue Law Copulatiua the coniunction copulatiue is taken after two sorts either in a deuided sense or in a compounded sense in a deuided sense as when I say Sir Robert Booke and Sir Iames Dyer were Lord chiefe Iustices of the CoÌ„mon pleas for they were not chiefe Iustices together but at diuerse times in a compounded sense as when I say two three do make fiue D. Debito is he of whom we may against his wil exact money Decimae are of three sorts praediales personales and mixt praediales are they which arise of farmes or lands as corne hay and the fruits of trees personal which are due by personall labor as by some trade trafick or mistery mixt of which it may be doubted whether they be predial or personal as wool lambe milke c. Defensio is the auoiding of a surmised pretended offence Delegatus a delegate to whom a cause is coÌ„mitted to be determined and ordered De plano vel sine figura iudicij vel summarie Deprehendere is to take a man in ipso facto so that he can neuer flye nor denye the facte Discendere to discende or to spring of ones body hereupon they which are borne of vs are called by the name of discendents which with them that ascend make the right line and the ascendents and discendents cannot marry together wherefore if Adam were now liuing he could not marrie a wife Dicecesis the gouernment of a certaine prouince by the Bishop for as a territorie is so called quatenus iudex ius terrendi habet so a diocese as farre as a Bishop hath ius administrandi sacra Dispensatio a release of common right either ex causa vtilitatis necessitatis or ingentis praerogatiuae meritorum Diuersa such things whose subiect is not alike or whose definition is not alike Dominium is a right to dispose perfitly de re corporali Domus instructa a house furnished if a man deuise such a house the household stuffe passeth but not the wine that is within the house because by common intendement a house is not furnished by wine Dubia causa is that which is but semiplene probata E. Error an opinion whereby that is approoued and allowed to be true which is false and that to be false which is true and error may be two wayes eyther in iure constituto or els in iure quod quis in suo habet negotio the one is an error in lawe the other in facto Euanescit actio the action doth faile or abate euanescit actio by the power of the lawe or of the Iudges remittitur actio by the will of the plaintife Executor an executor which is after three sorts executor testamentarius executor legalis that is to say the ordinarie executor datiuus the administrator Election is the certainetie of our will it may be of persons or of thinges places or times Of things as if a man should pay a summe of money or els a horse or a hawke Or of persons as if he should pay it to I. S. or to I. N. Or of places as if he should pay it at London or at Lincolne Or of the time as the first day of April or the second day of May. F. Falsitas falshood is immutatio veritatis cum doto damno alterius the chaunge of truth with falsehoode to the deceiuing and endamaging of an other man Fama is a common report proceeding from suspition and published by the voices of men and it differeth from rumor because that is a diuerse whispering of men which is not so effectuall as Fame Fama constans is that which is dispersed abroade neither by men vnknowen nor of light credit nec ignotis nec improbis Fideâ—â—â—â—â— is he which bindeth himselfe for another quasi inssu alterius ponens fidem suam Fortuitus casus a meare chaunce which by mans counsaile care and diligence can neyther praeuideri or praecaueri be fore-seene or foreclosed G. Generalis lex a general law which comprehendeth all cases except such as be vnlawfull and vniust For there is nothing more absurde then to draw a iust Lawe to an vniust interpretation Germani fratres are they which are of the same Father Mother Consanguinei which haue the same Father but not the same Mother Vterini which haue the same Mother but not the same Father Gestores negotionuÌ„ factors or procurators be of three sorts voluntarij which gratis and of their owne accord do regard the busines of their friend Necessarij which by obligation of their office doe follow matters Quasi necessarij which haue some colour to deale in matters Graeca mercari fide i. pecunia numerata with money paied in hand I. Illegitimi bastardes whereof there be three sortes Incestuosi which be begotten of kinsmen and kinswomen within the
appeare by that saying of Salust sentencing the proceeding of the Romaines in a matter of estate fit reus magis aequo bonoque quam iure gentium Bomilcar comes eius qui Romam â—ide publica venerat this is not so much comprehended in writing as in the true vnderstanding of that which is written It is necessary by the iudgement of an other Law which saith Etsi nihil facile mutandum est ex solennibus tamen vbi aequitas euidens poscit subueniendum est and againe iustus iudex aequitatem solutius sequitur This though it haue place somtimes in the precepts rules and cases of the ciuil and common Laws yet it hath more affinity with the Law of nature and the Law of nations which are ignorant of the knots and intricate points of these aforesaid Lawes Now that we haue discoursed of these seueral Lawes it remaineth that we should shew what things are the principall obiects of the Law which may be reduced to two heads for either they are real or personall That which is reall is either land or that which issueth out of land land is either firme and fixed earth or that which is immediatly and coherently annexed to the earth as houses By the differences of this diuision a pischarie or fishing is excluded whether it be libera piscaria that is a libertie of fishing in an other mans pondes or waters which he hath in common with others For xx persons may haue a fishing after that sort in one riuer and it is therefore called libera because none may disturbe them to whom the fishing belongeth Or seperalis piscaria which in our bookes hath seuerall significations for either it may signifie a seuerall fishing which one man alone hath in an other mans soile Or els where a man hath a seuerall fishing to himselfe in his owne ground and so it is a thing compounded of water and of earth and therefore it is said that where a graunt is made of a stagne or piscarie the land passeth And in a Formedon brought of a gorse which in Latin is called gurges a gulfe or dâ—epe Yarmouth wherein fishes are commonly taken the demaundant shall recouer the land and soile it selfe And it hath bin adiudged that a fishing so taken lyeth in Tenure And a writ of Aiell was brought of a fishing as a thing lying in demesâ—e And also of a stagne or poole But it cannot be termed land because the water is not coherently fired to the soile but otherwise it is of an acre of lande which is couered with water for though that be ouerflowed with water yet it is not naturally ouerflowed as a ponde or fishe-poole is And therefore it is said 12. H. 7. that a man may haue a Praecipe de vna acra terrae cum aqua cooperta or de vna acraterrae generally at his election But a tenement cannot be said to bee freehold except it touche the earth and therefore a chamber built vpon a hallor parlor cannot be said to bee freehold because it cannot be perpetuall for the foundation may perishe and for that cause it cannot be demaunded by plaint or Writ Yet 9. E. 4. an exchaunge was made of lande for a chamber but that prooueth it not to be freehold for an exchange may be of things of diuers natures as of land for rent And so of a rent for a common A Castell whether it bee a thing either of it selfe or parcell of a seigniory or Mannor may well be called land or freehold For though land may not be parcell of land no more then one Leete or Hundred may bee parcell of an other Yet land may be parcell of a Manor And a parke may be parcell of a Mannor And land may be parcel of an Honor. And of a Castle It is nowe shewed what may properly be called Land and it is not impertment to declare how many sortes of land which we haue before called firme ground may be demaunded by Law of which the Law hath a seueral contemplation Land therefore as it is subiect to the consideration of Law is sixefold Arua Florida consita compascua mineralis in frugifera Arua is the arable ground which is tilled with the Plough Florida the garden ground which procreateth flowers Herbes all such thinges as the Bee doth feede vpon Consita is the wooddie ground which is throughly replenished with trees plants shrubbes and such like Compascua is that which bringeth forth grasse and fodder Mineralis is that wherein mines are conteigned whether they be regall mines as mines of Gold or Siluer or baser mines as brasse leade copper tinne coales or the like Infrugifera is that which is barren and cannot be helped by manurance as the soile where rushes weedes ferne and such things doe grow and it is good to know the diuersitie of these seuerall sortes of grounde that when such thinges are to be demaunded by writ they may be demaunded by their proper names and kinds and therefore if a feoffement be made of two roodes of land and after a house is built there vpon and part of it is become medowe parcel pasture ground and parcell wood the demaund must be by the name of a house medowe pasture and wood and there is a writ in the Register de minera plumbi cuiuscunque generis metalli cum pertinentijs and ruscaria the soile where rushes do grow must be demanded by number of acres And where a stagne hath bin or land couered with water if the water be turned out of the course or dried the land may be demaunded by the name of medow That which issueth out of land or the profits of land are of three sortes Naturall Industriall and Artificial The Naturall profits of land are such as doe rise by the force and benefit of Nature principally and not by the diligence and labour of man as apples hearbes trees and such like Industriall profits are such as doe principally require the diligence and culture of man which vnlesse it be continually applyed natura nihil operatur as corne hoppes woad saffron and such like Artificiall profits are these which are reserued graunted or issuing out of land by the Acte of man and the approbation of Law as a common of pasture a warren a rent and thinges of like sort Common of pasture is of fower sortes appendant which is belonging onely to arable grounde or to land that consisteth as well of arable ground as of other thinges as a Mannor or measuage but the appendancy doth principally grow by reason of the arable and therefore it belongeth to such beastes onely as doe manure or marle the grounde as horses oxen kine and sheepe And if a man haue common to certaine arable landes in one Village hee cannot vse the Common with beastes that manure his arrable in an other Village And this ought