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
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
because they doe expresse things merely forraigne and external by wordes of their owne Idiome and commendeth the Romanes because they did apply forraigne wordes to forraigne matters And the common law being deriued from the Normans and other nations doth conueniently retaine the words of the first Inuentors And because amongest Lawyers Latine wordes be vsed many times in an other sence then they are vulgarly and commonly taken it is not good to haue the interpretation of such words from any other then the Lawyers themselues And though the Grammarians and Antiquaries do in the Etymologicall interpretation of wordes excell yet the writers of the Law in the Analogical interpretation of such Latine wordes as do belong to their art do farr surpasse them I do not think any exquisite skill of the Latine tongue to be necessarie in 〈◊〉 Lawyer but hold it sufficient if he know so much thereof and in such maner as the common sort of men which are conuersant in the reading of Latine bookes And Plato hath a good saying to this purpose that these things ought of necessitie to be knowen whereof if a man should be ignorant he should be said to be shallow and superficiall So much therefore of the Latine tongue ought to be knowne as will keepe a man free from such reprochfull tearmes The auncient Reporters and handlers of the Law whilest they writ of Fines Vouchers Remitters Restitution Releases and such intricate matters had no leasure to note the properties and rules of the Latine tongue in Cicero Plinie Plautus and Varro they inquired not which was good Latine but what was good Law But they were wise in their Iudgements circumspect in their aduise sharpe witted in their arguments graue in their speech subtill in their questions cunning in their resolutions they were excellently instructed to distinguish of ambiguous thinges by most wittie diuersities to open and to argue harde and enigmaticall cases by sound and inuincible reasons to confute that which was false and confirme that which was true And whereas they are impeached for the want of good and proper definitions let me aske of these strict Logicians what a definition is I thinke they will say that it is a briefe and plaine declaration of the substance of a thing and be there none such in the Law surely many but they will haue ti to consist of the proper genus and the proper difference as they tearme it wythout adding any thing els But it is sufficient if it expresse the nature of the thing whereunto it is applied May May not these be admitted for good definitions A Fayre is a great Market a Market is a little Faire a village is a multitude of houses a Countie is a multitude of villages Do not these sufficieÌ„tly expresse the nature of a Faire Market Village and Countie yet if they should be tried by the touchstone of the Logicians they wruld be vtterly reiected as not currant Some do spend a whole decade of howers in doing nothing els then seeking out the proper genus and difference of one onely thing and when they haue done they are scarsely so wise as they were before they may say of them selues as Gentilis speaketh of them verie fitly Confidentia astra petimus ruimus in praecipitia Their diuisions like wise are reprooued because they doe not flow from the essence of the thing diuided Yet it is sufficient if they doe briefely diuide a thing into his particulers Who can disallow of this diuision vsed in the Law whereby all causes are said to be eyther criminall or pecuniarie none but such as will finde a knot in a bulrushe Againe they say their reasons are not artificially concluded Surely it is not for any man vnlesse he bee in the Schooles to tye himselfe to a precise kinde of syllogysmall logike But if it go to the end of the controuersie it is sufficient and that is the opinion of Alciat Their Methode is amongest other thinges reproued or rather their want of Methode which exception wanteth trueth All bookes written of the Law may be reduced to these fower heades either they are Historical as the yeare Bookes of the Common Law and Zasius his counsailes in the Ciuill law in which no Methode is requisite but it is sufficient to report the thinges done and how they were done or explanatory as Mast Stamford his Treatise of the Prerogatiue and the discourses of diuers Glossographers Commentors in the Ciuil Law wherein no strict Methode can be obserued For the Commentor must needes follow his authour euery way that he goeth And if there be no Methode in the one there can not iustly be any demaunde of the other For he that vndertaketh to comment or to confute must applie himselfe wholy to the course of his authour or the aduerse partie And therefore Scaliger said very aptly to â—ardanus Sequor te non quò ducis sed quò trahis Or els they be Miscellaneall and in such there needeth no Methode because things of diuerse sort and not depending the one vpon the other are laide together And such are the Abridgements of the Common Law and the Pandectes of the Ciuill Law Or els they be Monological being of one certain subiect as M. Stamford his booke intituled the Pleas of the Crowne Ma. Lambards Iustice of peace whom if any reproue for lacke of methode surely his iudgment is out of order and that excellent Booke of Albericus Gentilis a Ciuilian De legationibus then which I haue not seene any thing done with more plausible artificiall and exact methode which as it is verie hard for any to imitate so it were to be wished that he would in some other like treatife equall himselfe But yet an other obiection hauing more fauorers then the former must bee auuswered which is that the Law is vncertaine and that Lawyers in their opinions and arguments do greatly differ and dissent But here the matter is greatly mistaken For the Law it selfe which doth consist of agreable coÌ„clusions and of the iudgements awardes and opinions to which reason and truth haue subscribed is not vncertaine how-be-it they which doe argue of new questions and causes neuer heard off before or such as for their great difficultye haue not yet bin decided doe in argument contend amongst themselues but that which moueth disputation is not the obscuritie or doubtfull vnderstanding of the Law but the qualities and circumstances of the persons of the actions and accidents of the time the place the antecedents and consequents And though reason be opposed to reason and circumstance to circumstance yet the Law is neuer opposed to it selfe And if a man will condemne an art because the professors and practisers are diuers in opinion surely there is no art nor science which wil be free from condempnation Goe to the Historiographers who should report the truth of euerie thing you shall finde them at great oddes Lyuie against Polybius Plutarche against
by circumstances and occurrences for there is no case which accidents may not alter but that one thing may counteruaile an other or that a defect may be supplied by enforcement of reason or that a wrong may bee purged and transfourmed into right and blacke as it were changed into white contrary to nature is the worke of intelligence reflecting vpon it selfe some perhaps carry such spiced and scrupulus consciences that they cannot abide any fiction or representation of a thing that is not in facto but surely the supposall admittance and intendement of the Law is necessarie without which neither the science of the Law nor any other which consist in contemplation and abstraction of the essences of thinges from the confusion and mixture of circumstances can be of any woorth or force And though I must confesse that euery thing which is imagined to be done and is not actually done is a phantasie or an vntruth yet this must be graunted that that which is not really done and yet for auoyding inconuenience must be supposed to be done in facto is not a fault though it be false Many things of thys kind qualitie haue I before immediatly proposed which will be voide of all effect if you take imagination from the Law Let it therefore be considered what this imagination is whereof we speak that by the description thereof it may be better knowen It may thus appeare vnto vs Fictio a supposall or admittance of a thing to be is legis aduersus veritatem in re possibili ex iusta causa dispositio the disposing of the Law against a matter of truth in a thing that is possible grounded vpon iust cause and there is great difference betwixt imagination and presumption because fictio iuris the imagination of law tantum operatur quantum veritas ipsa in the conclusions and decisions of law and the Law maketh sometime ens ex non ente in intelligence though not in existence but praesumptio stat in dubio it is doubted of and yet it is accompted veritatis comes the companion of trueth quâ—tenus in contrarium nulla est probatio And the vse of supposall or fiction in the Law is onely to supplie that quod desideratur in facto which is wanting in fact vt ex ipsa producâ—ntur veri iâ—ris effectus that true effectes and conclusions of law may proceede from it The Logicians say that the vniuersals are not in rerum natura for if they were they should be monstra for an vniuersal man or an vniuersall tree comprehending in it all trees is râ—â—her by vnderstanding to be comprehended then by sense to be compassed yet I would not haue any imagination to be vsed but where Equitie and the orderly coherence of thinges doth require it That the Student ought well to conceiue the reason and Iustice of the Law in distinguishing and establishing the propertie and communitie of thinges The seauenth Chapter THe ende and effect of the Law is to settle the propertie and right of thinges in them to whom they belong And to iudge those things common which continuance of time and the entercourse of parties hath distributed warranted to many for if all thinges should be common there should be nothing in order and if nothing should be common men would hardly be kept in duitie for then should friendship societie and conuersation the comforts of mankind faile which would turne the whole common weale into a wildernes therfore the most prudent and politike Law-makers haue thought it most conuenient that betwixt these two extremities a middle euen course should be taken whereby propertie myght be reteigned and yet communitie preserued Plato because once he was of opinion that all thinges ought to be common hath therefore many blowes of his scholler Aristotle writing against him in hys Politikes in which booke he hath a learned difference that all that be common 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in vse but not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in possession and title which notwithstanding is not generally and indefinitely to be admitted because then it tendeth to the ouerthrow and vtter subuersion of all common weales But Plato being after better aduised did retractate his former opinion and laboureth to confute it for in his book of Lawes he writeth in one place Let euery man haue the free vse and possession of his goodes by law whether he be citizen or stranger and in an other place The distinction of demeanes inheritances and titles is the foundation of all priuate contractes which must be seuerely established by Law therefore meum and tuum ought to be in euery common weale And againe Let the inheritances and properties of thinges be definite and certaine in euery common weale and let a certaine manner of purchasing them be prescribed by Law Thus it is euident that a distinct propertie of thinges is commodious and conuenient for the good administration of a common weale It is of two sortes eyther an absolute and indefeasible propertie or els a qualified propertie and sub modo An absolute propertie is such which is not in any sort subiect to the claime of any other but a qualified propertie is that which one man may claime after one sort and wyth a certaine limitation and an other may claime after an other maner and wythout limitation As if a man doe hyre beastes of an other to manure his land for a certaine tearme hee that hyreth them hath a propertie in the beasts pro tempore and therefore if the beastes during the tearme be taken away he may haue a generall Repleuine So he may haue of beastes which bee in his custodie and were committed to his keeping And so he may haue a generall writ of Trespasse for the taking or dryueing away of beastes in his custodie though the absolute propertie bee in an other man But if hee whych hath the verie propertie doth take them an action of the case will onely lye And the Bailie of corne or money being out of sacke or bagge hath so farre foorth a propertie in the thinge deliuered that if the Bailie be afterward attainted of felonie he shall forfait the corne and the money for it cannot be knowen whether they be mine or no. And the Lord may haue a Repleuine of the beastes of hys villaine or bondman if hee haue bin seised of his villaine And it appeareth by diuerse bookes that in an action of trespas it is no plea to say that the propertie that is the verie propertie is in an other And it is sayd lykewise that hee out of whose possession goodes are stolne may haue an Appeal and he lykewise may haue an Appeal who is the verie proprietarie And therefore it is a firme conclusion in law that if sheepe be deliuered or leased to one for a certaine time to marle his ground the deliuerie or demise is a good plea in barre of an action of Trespasse or Repleuine because