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-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
Enchiridion Legum A DISCOURSE CONCERNING The Beginnings Nature Difference Progress and Use OF LAWS in GENERAL And in Particular OF THE Common Municipal LAWS of ENGLAND LONDON Printed by Elizabeth Flesher Iohn Streater and Henry Twyford Assigns of Richard Atkins Edw. Atkins Esquires And are to be sold by G. S. H. T. J. P. W. P. J. B. T. B. R. P. C. W. T. D. W. J. C. H. J. L. J. A. J. W. J. P. M DC LXX III. THE HEADS Of the several CHAPTERS Conteined in this TREATISE CHAP. I. THE Definition Etymologie Division Perfection and Imperfection of Laws What is required to the making of them and of their necessity pag. 1. CHAP. II. The differences betwixt the Là ws of Nature of Nations the Civil and Municipal Laws pag. 16. CHAP. III. Of the grounds of the Laws of England and how they do differ from other Laws pag. 31. CHAP. IV. An answer to certain Objections usually made against the Laws of England pag. 57. CHAP. V. Of the Books written of the Laws of England whereby the Knowledge thereof is Chiefly obtained pag. 83. CHAP. VI. Of Estates allowed by the Law of England pag. 89. CHAP. VII Of Assurances Conveyances which grow out of these Estates by the Common-law pag. 95. CHAP. VIII Of Actions and of their Trials according to the Common-laws of England pag. 103. CHAP. IX Of Trials allowed by the Laws of England pag. 106. CHAP. X. Of some things in the Ministers and proceedings of our Laws conceived worthy to be reformed pag. 111. Enchiridion Legum CHAP. 1. The definition etymologie division perfection and imperfection of Laws What is required to the making of them and of their necessity MEaning to treat first of Laws in general and next of the Common or Municipal Laws of this Kingdom I conceive it cannot be unprofitable for an Introduction unto this intendment to set down the definition of a Law whereof Justinian hath delivered three derived out of Demosthenes Chrysippus and Papinian One is that a Law is said to be that whereunto men ought to yield obedience as in other respects so especially in this because it is an invention of the Gods a decree of Wise men a correction of offences committed either wittingly or ignorantly a Covenant of the whole Commonwealth with one accord after the direction whereof every Citizen ought to order his life The other is that the Law is said to be a Soveraign of all things both Divine and Humane That is a Commander a Guide and a Square both of good and bad enjoyning that which is fit and forbidding the contrary The one of these is rather a description than a definition and it describeth rather the Natural than the Positive Law And the other is fitting rather to an Orator than a Lawyer We may therefore let them pass and proceed to the third which setteth down the Law to be a general determination of Wise men a Comptroller of Faults either escaped through ignorance or committed upon wilfulness And it is a general agreement of the Commonwealth Jason observeth that the Law is a general Commandment in three respects either because it is founded upon a general Authority or because it belongeth to and bindeth all or else because it is intended general for the profit of all Cicero defineth the Law to be a certain reason flowing from the Divine mind which doth perswade that which is right and prohibit the contrary And Plato saith that the Law obtaineth a name like to the name of the mind But whilst the Law is defined by the Divine mind it seemeth as one saith to be defined by that which is more remote and general than subject to common capacities Yet are these definitions in some sort true being rather referred to the eternal Law than to the positive and humane Laws as shall be shortly shewed in his place In the mean time for that these as the former are as was said before rather descriptions than perfect definitions to come more near to the purpose It may be said that humane Law is an Order and Ordinance including the Rule and Reason of Governing and giving to every man that which is his due directing to the end of publique good determining punishment to the Transgressors and reward to the Obedient Therefore to conclude humane Laws are nothing else but the ordinances and agreement of Wise men concluded by publick Authority for the peace and profit of the greater part of the people living together in society It is said for the greater part because no humane positive Law is so generally good unto all but that it is hurtful unto some by accident if not of it self If any do desire to know from The derivation of the word Lex which we call Law whence this word Lex which in English we call Law is derived Some will say with Isidorus that it hath his etymologie à legendo because after the Law was written it was wont to be read unto the people But this is not so certain in that the reading of the Law by way of promulgation was but accidentary and no essential part of the Law although some have endeavoured to prove that a Law could not be perfectly established until it were promulgated by way of Proclamation Others will derive the word Lex à ligando for as much as Divines hold that men are tyed in foro conscientiae to the observation of the Laws as well as they are bound under penalty to observe the same Yet Cicero concurreth with the first derivation but with a farther-fetch'd reason than the former quod Lex idem sit quod legendi hoc est eligendi regula the reason is nam regula dirigendo docet eligere It may yet well enough agree unto both for one saith Habet Lex quod sit Regula quod sit obligatoria praeceptio How soever these derivations of the word Lex do stand false or true it makes not much matter so we leave them as more Grammatical and Conjectural than certain and infallible The word Lex which in English we A double signification of this word Law call Law hath in our language a double signification or is taken two ways for it is taken both for that which the Latines term Lex and for that which they call Juris prudentia the one being the Art of the other For Lex is the rule and measure of things to be done and to be left undone but Juris prudentia is the knowledge and method of that rule as Justice is the Execution of them both which hath his force in giving to every man that which is his in praemio paena debito So then in the first sence the word Law is properly applyed but in the second it is somewhat largely extended yet use and common opinion hath so accepted it This Law hath for his subject and object the Rule of all Divine and Humane things except God himself who is the great Rule-giver and Law-maker and he
were not so good French as Dubertus his days and weeks yet it came then in a manner near to Frossard his Our Laws written at the first in French came then near the speech at that time used French in his History which was made about that time as Apuleius his Latine being no Roman did unto the phrases of Livy Cicero and such like Some corruption there must needs be in tract of time of a tongue spoken in another Country and consonant with another different language as the French was here It is evident that the antient Books as Britton Hengham and the year Books of the first succeeding ages are in better French than our later Books are because our common Lawyers now do imitate the antients in such words as they have there learned and if they want a fit word in French then do they as Sr. Thomas Moore saith of Lalus Gallicis si quid nequit vocabulis Conat id verbis licet non Gallicis Canore saltem personare Gallico c. So that indeed the tongue wherein Our Law French of later times much mingled the Law is published of late hath been much mingled with French Latine and some English that a man might compare it to that supposition of Horace Humano capiti cervicem pictor equinam c. And our late Law French doth corrupt the antient Law French as that in those primitive times was corrupted some what by the English so that the most of our Law being in the ancient French for so are the year Books until Henry the 7th his time inclusively deserveth no more to be ill thought on for the language although not spoken in our or in any Country than Plautus his Comedies because they agree not with Latine Authors in their Latine or Chaucers writings because in words stile they differ so much from Sr. Philip Sidneys selected and exquisite phrase Should any man think the worse of the study of antiquity because that most things wherewith they have dealt withal being The study of antiquity not to be misliked for the ill Latine Histories of the middle and later age on this side Christs nativity are written for the most part in very mean Latine Neither is it any good objection to say that our tongue wherein the Law is written is no tongue because it is not spoken for about Charlemain his time as appears in Lipsius his epistles the right French did more differ from and seem more Barbarous in respect of the smothtongued now used in France than our Law French about Edward the first The ancient French more rude than that now used his time did differ from the Natural French then in use so as it was a tongue then much spoken but now much varied and altered Where it is objected that it is a tongue unknown certainly It is by students of the Law as easily and far more easily learned than any other language can be for within less than a seven-nights study it will be indifferently understood And that it should not be commonly understood of all men Our Law French easily understood Fit that the language wherein our Law is written should not be commonly understood there is great reason and no profit but peril in the contrary for if all men whereof the greatest number are of unquiet spirits should at the first fight understand the language wherein our Laws are written that would breed but small rest to them that would most desire peace Therefore I cannot see what impeachment of credit it is to our Laws that they are written in such a language if of themselves they are not to be discommended which in the other points will somewhat appear For the second objection that our 2. The second objection that our Laws do want Method Laws want Method and order For Method which indeed in all learning is to be wished for and yet is not found or framed in our Laws but that is no great disgrace to the Laws for hardly shall we find any faculty that is without any defect as Sr. Francis Bacon in his second Book of the advancement of learning hath well noted whereas also there is not an harder point in Logick and Rhetorick than the right distinguishing of the true Methodical parts in any faculty as appears by the multitude of writers in each faculty Indeed the Long before the Civil Law was brought into Method Civil Law was easier for Students after such time as Justinian had digested the 2000 Books and 300000 verses wherein it was scatered and confused the like whereof might be wished in our Laws but upon what grounds hoped for I cannot yet The difficulty of digesting our Laws into a Method discerne for no small impediment therein would be seeing our Laws are grounded so much upon reason which alters and reforms other precedent errors Hardly could there be a Methodical digest drawn of all the year Books I mean for authority and not only for Study which might be sure to stand always firm for Law without it were first so determined by Parliament the confirmation whereof I conceive would come ad Calendas Graecas But for Study the time may come A private Method for study more easy and profitable that by the example of Littleton for Tenures and Common Law conveiances and Estates Stanford for the Crown pleas Theloal for Writs Gregory for Warranty and few more heads Kitchin for Courts together with Crompton and Lambard so by their example some great Lawyers may settle themselves to imitation this perchance may be remedied by some skilful Scholastical Lawyer but whether the remedy would not be worse than the disease and whether it will not make any truants of such as otherwise might prove painful Students let it be their judgments who are judicial and not theirs who are altogether ignorant in our Laws What inconvenience might follow the digesting of our Law into a precise Method for this is most to be feared which we find by experience that where abridgments are and where by compendious Method some strive to give life and luster unto the Art they profess the Students thereof coveting to come the next way to their Jornies end do like those Travellers which to avoid some long though the safer way do choose to adventure the passage over a bridge whose foundation may yet be faulty so fall short of their Journey rather than to go somewhat farther unto a ford where there is less danger and a surer though somewhat a longer passage I will not say that there is the like hazard in Methodical composition of our anuals or year Books of the Law but sure we see that many Students are already more addicted to the Study of the new than of the old year Books The peril that Students desire to read the new and to omit the old Books of our Law wherein seeking to save pains some may fortune to find in the end that to offer
common peace and society of Men lest the like occasion of wrong doing should grow general and so in the end hurtful to all So by this Secondary Law of Nations grew the division of Goods the distinction of Properties free Commerce betwixt Nations common Contracts and the like By this we see that the Secondary The secondary Law of Nations no part of the Law of Nature Law of Nations is no part of the Law of Nature and differing also from the Primary Law of Nations it self Now let us see next how the Civil Law differeth or is distinguished from these Laws of Nature and of Nations The Civil Law or the appellation The name of the Civil Law taken two wayes thereof is taken in two several significations for either it is in a strict signification accounted particularly and only for the Roman Law first set down by Papirius Papinian Vlpian and others and afterwards collected into the Institutes Pandects or Digests Novels Constitutions and the Feuda by Justinian's commandment or else in a more proper sence it is accepted for the particular Laws which every Kingdom and Commonwealth doth constitute for it self And although Caius with other learned Civilians do confess that the Laws which every City doth make for it self be properly intituled Jus Civile quasi jus proprium ipsius Civitatis yet the Romans having gotten under their subjection the greatest part of the known World gave Laws unto all Nations Conquered by them which by a kind of Excellency they termed Jus nostrum or Jus Civitatis Therefore Justinian after he had caused the Digests to be compiled commanded his Judges that these Laws should be used in all Countries and that his Pretors of the East of Illyria Lybia and other parts should put them in practice Whereby it came to pass that the Roman or Imperial Laws were generally called the Civil Laws and have for the most part in most places been ever since so observed Whereas otherwise in proper sence and signification the particular Laws of each free City and State ought to be called their Civil Laws But both these that is the Roman and Imperial Civil Laws and The Civil and Municipal Laws do not wholly differ from or depend on the Laws of Nature and Nations the particular Civil or Municipal Laws of every City Commonweal or free State do not wholly differ from the Laws of Nature and of Nations nor wholly depend on them in this because the Laws of Nature and of Nations are permanent and perpetual being alwayes the same without any alteration But the other that is to say the Roman Civil Laws have been subject to many The Roman Laws subject to sundry mutations mutations alterations and abrogations So likewise all other Civil and Municipal Laws have been and are according to the variation of Times of States and of sundry circumstances For example in the Roman Laws The Laws of the Kings of Rome whilst the Roman State was under the Government of Kings they made such Laws as they thought fit for that time the present state of the City and their own purposes which were all digested into one Volume by Sextus Papirius as is recorded by Pomponius But the force of these Laws ended with their Reign and as soon as the Commonwealth was transported into a New State at the first they could not frame any certain or constant Laws for the Commons and Gentry opposing each other for The Laws of the Consuls and Commons of Rome twenty years together such Laws as were then made did rather seem to cross and contend one with the other than to concurr in any mutual harmony for the good of the Commonwealth For the Consuls made Laws according to the minds of the Senate and the Tribunes of the people according to their affections untill they agreed to send certain Legates unto Athens and other Cities of Greece famous at that time for good Laws and Government that they might be better pleased with Foreign Laws who envied and held not their own indifferent Which done they drew those Laws brought The Laws of the 12 Tables fetch'd from Greece to Rome from thence into Ten Tables to which they added two more of their own these they called the Twelve Tables being the grounds of the Roman Laws But yet two years after these Laws were brought to Rome and established there the Authority of the Decemviri upon which the force of these Laws did depend ceased and was extinguished by the lust and licentious life of Appius Claudius being one of them And although those Laws of the Twelve Tables continued afterwards as grounds of other Laws yet were they still added to and altered as the Roman State did change For when The Emperors of Rome make and change Laws at their pleasure the Emperors set up their Soveraign and supreme Authority they made such Laws Edicts and Constitutions as were answerable to their own ends the succeeding Emperor often disannulling what his predecessor had ordained And as they abrogated the Laws of others so did they not long uphold their own For who almost was there amongst them that did not change their own Constitutions Besides as the state of the Empire The admixture of divers Laws in the City of Rome grew greater they were forced to alter their Laws with admixture of their Decrees of the Senate Statutes of the Commons Ordinances of the Magistrates As the Pretorian Laws called Jus honorarium which were of great force for the time but of no long continuance for they were founded upon the Authority of the Pretors and did often end with their years Thus the Roman Laws remained in much uncertainty till the Reign of Adrian the Emperor who with consent of the Senate did cause these Laws to be made perpetual whence grew the name of Edictum Adrian's Edictum perpetuum infringed perpetuum But yet in divers succeeding Ages sundry of these Laws were also abrogated and even the Laws compiled in the Pandects and Codes by Justinian's commandment were some of them by him altered and many taken away in a latter Book called the Authenticks All which is alledged to shew the instability change and uncertainty of the Roman Laws The like might be said of the Laws of other Nations which have been found uncertain in their grounds and unstable in their continuance Secondly We may see that there is difference betwixt the Civil Roman Laws and the Municipal Laws of other States For though the Roman Imperial called the Civil Laws do bear much sway in most Countries of Christendom and have place in All Countries have some particular Laws and Ordinances different from the Civil Roman Laws their proceedings of Justice but least of any place within this Kingdom of England yet have all Countries their several Customs Statutes and particular Ordinances discrepant in divers points from the Rules of the Roman Imperial Civil Laws which is no marvel since in the Digests there
is delivered as from Papinian some distinction betwixt the Roman Civil Laws and the Pretorian Laws made in the same City For it is said there that the Civil Laws did consist of the Statutes of the People the Ordinances of the Senate and Decrees of the Princes with the Authority of Wise men But the Pretorian Laws were those which the Pretors did introduce to supply to help or to correct the Civil Law So is there alledged in the same Digests out of Paulus another division of Laws The first is the Law of Nature the second is the Civil Law the first is freed from Injustice the second is deemed profitable to all or the greatest part of the City and there is added Jus The Pretorian Law differing from and correcting the Civil Law honorarium or the Pretorian Law as if it were no part of the Civil Law wherein it is said the Pretor doth give Law though he doth determine unjustly having relation not unto that which the Pretor doth but to that which is convenient for him to do So that it is not to be wondered that the Municipal Laws of every Country do differ from the Civil or Roman Law or that the Civil Roman Law hath not his full force in all Countries or that it is not the only Law that governeth in any Country Because the City of Rome it self did admit some other Law to be administred within the City than that which was called and accounted their own Civil Law or Jus Civile And where there was question made before concerning the Civil Law whether the same were only the Roman Laws or as well other Municipal Laws Some Civilians do distinguish A division of the Civil Law them into two parts the Roman Laws they call Jus Civile commune and the other Jus Civile particulare To the first they referr also some Municipal Laws especially those Constitutions of the Empire since it was translated to Germany as the Aurea Bulla of Charles the 4th Also the Constitutions and Edicts of The Municipal or Civil Laws of Germany the German Emperors in their Diets or Parliaments which are reckoned and referred to the common Civil Laws because they are ordained by Authority of the Emperor and yet they are in true construction but particular Civil or Municipal Laws because they bind none but such as are subject to the Empire or to those places of the Empire for which they are made and which do submit themselves thereto So hath the Kingdom of France The Municipal Laws of France certain particular Civil or Municipal Laws made in their Parliaments which were anciently the Councils of their Kings but when the Kings of France did separate their Councils of State from those Parliaments yet the Parliaments have been held in certain Cities of France as saith Brison President of the Parliament of Paris at certain times of the year The first and principal held at Paris established by Philip the Fair or as some say by Lewis Huttin his Son the second at Tholose for Languedoe the third at Bourdeaux for Aquitain the fourth at Grenoble for Daulphine the fifth at Dijon for Burgoigne the sixth at Rouen for Normandy the seventh at Aix for Provence the eighth for Bretaign instituted by Henry the 2d Anno 1553. They have also Municipal and particular The Municipal Laws of Spain Civil Laws ordained for the Kingdom of Spain as those set down by Alphonsus the 9th And the like for that and other Countries are extant and in use The Kingdom of Scotland hath as The Municipal Laws of Scotland and of England not altogether different this Realm of England several and particular Municipal Laws differing from the Roman Civil Laws As for the Laws of Scotland they are not so far different from the Laws of this Kingdom of England as divers do conceive and that the Laws of Scotland are not altogether unlike these of England but in many points do concurr with them is not improbable For that there is a Book concerning The Law Book of Regia Majestas in Scotland like to Glanvil's Book of the English Laws the antient Laws of that Kingdom termed Regia Majestas which as some Students having read the same do affirm and as it is set forth in the Printers Epistle to Glanvil's Book do agree much and in many places word for word with the said Glanvil's Book and doth often vouch him So that it is supposed the antient Laws of both these Realms did then agree and do yet in most points which have not been altered by Statute since in either of these Realms Also King James in one of his Speeches made to the Knights and Burgesses of the lower House of Parliament did pronounce and declare that the Tryal in the Chancery of Scotland was brought from this of England shewing the time Author and occasion thereof Therefore it An opinion that the Laws of both these Kingdoms may in main points be conveniently made all one may be conceived that there is not such great discrepancy or contrariety betwixt the Laws of both these Kingdoms but that by due examination it will be found that there is or at least may be a consonance betwixt them in many if not in most points But for the Laws of England how they do differ from the Civil and other Laws shall be shewed in the next ensuing Chapter CHAP. III. Of the grounds of the Laws of England and how they do differ from other Laws OUr Laws of England do differ as in name so in divers other circumstances considerations and conditions from the Laws of other Kingdoms and Commonweals First for the name they receive a common appellation of the Common Laws of England a name scarce given to the Laws of any other Nation Why our Laws are called the Common Laws of England Therefore whence it received this denomination of the Common Law may breed some question Some say that it is called the Common Law to distinguish it from the Laws of particular Customs or of Customs allowed for lawful within this Realm But this is not certain nor scarce probable as shall be shewed anon when it shall be demonstrated that these Customs allowed for Law are rather made parts than distinguished from the Common Law Some others suppose that it is called the Common Law of this Kingdom to make difference betwixt it and the Statute Laws which as they are of another kind of constitution than is the Common Law as will be made evident so are they of several sorts in themselves as some of these Statutes are general and ordained for all the Subjects some are particular and made for the settling of particular mens Estates and of particular Trades Corporations and Faculties Therefore these cannot be nor may not be called the Common Laws of the Kingdom that is common to all but only in this sence because they are constituted with the common consent of all The third opinion is that they
Declaration in our Laws as the form is now used but contains both Causes in it besides there are other differences betwixt the forms used in the pleadings and declarations of both the Laws which would be too long and tedious to recite The next difference is in the Process 3. The third difference in the awarding of Process awarded in both the Laws Concerning the awarding of Process we find that with us in personal actions I mean in many of them joyning Statute Law and Common Law together In Actions personal more Process and delay permitted by our Law than by the Civil Law there are commonly awarded if the Suite be commenced in the Common Pleas summons attachment distress three capias with an exigent at the last whereby the King hath Title for the parties contumacy to his Goods and Chattels So that the plaintiffe hath now remedy by accident only and if the defendant appear and reverse the Outlary or get pardon and so answer c. which is a long time before this can be brought to pass and by this means this Suite may depend long yet the defendant never convented but at two or three years end the plaintiffe may be driven to declare anew as if he had but then begun his Suite But by the Civil Law as the Pandects shew us and Wesenbech affirmeth the Term to be now in the Empire post absentiam adversarii petat quis edictum primum mox alterum per intervallum non minus decem dierum tertium quibus propositis tunc peremptoriè impetret quod inde hoc nomen sumpsit quod perimeret disceptationem hoc est ultra non pateretur adversarium tergiversari Then if the defendant appear at the day given him by the Peremptory edict No judgment given in the absence of the plaintiffe at the Civil Law or if he do not the matter shall be discussed and judgment given for him whose part shall be found best But if the plaintiffe appear not then nothing shall be done but circumducendum erit edictum perpetuum And the peremptory edict may at the pleasure of the Judge be granted at the first by the same authority So that The interest of the plaintiffe lesse subject to prejudice in Actions personals by the Civil Law than by our Law hereby the Interest of the party who hath right is less subject to prejudice by that Law than by ours And this course of the Civil Law doth not admit so much delay as doth our Common Law For by our Law in such Cases where no Outlawry lieth in personal Actions there the Process of distress goeth out infinitely and then is there no end of the Suite as in per quae servicia quae juris clamat and such like wherein it is true that our Law severely punisheth the party which so much sheweth contumacy to the Law yet doth it no good or very little to the plaintiffe for his satisfaction But there is another difference that in Actions altogether real as Entry Escheate Right Dower and such like the remedy allowed by the Laws of England is far better for in them if at the day appointed upon the first summons the party make default and the quarto diepost be past then is there a graund cape to take his land into the hands of the King and the plaintiffe shall have it from the King by judgment if the defendant do not come to replevy it by oath that he was not summoned according to the Law or such like always remembred that Essoynes upon just occasion may herein breed much delay And herein is there much difference betwixt the Civil Law and our Law for in the Civil Law upon their peremptory edict notwithstanding the defendant A main difference betwixt the proceeding of our Law and the Civil Law in Actions real doth not appear the right shall be examined and thereupon judgment given but with us upon the default at the graund cape the plaintiffe shall have the land by judgment although the right be not examined As also upon the appearance if by oath he cannot save the first default likewise if he once appear and afterwards make default before judgment given there must be a petit cape awarded at which Writs return if he do not save the first default there shall be judgment given against him That all this was antient Law may be seen in Bractons Treatise de defaltis So that in personal actions the Civil In personal actions the Civil Law is more severe but in real more remiss than our Law of England Law hath a more severe and speedy course for recovery than the Common Law of England but in real actions it is somewhat more remiss or at the least ours is more severe For the last difference spoken of betwixt 4. The last difference is in the giving and Execution of judgment these Laws which is for the giving of judgment and Execution upon the same in real actions being in rem although the form and circumstance thereof may be divers yet in these real actions quoad substantiam effectum the difference is not very great for both Laws must make Execution of the same thing though perchance not in the same manner But for personal actions it is manifest by the course of antient and present times that for Debt ever since King Edward the third his time and damages and accompt ever since Henry the third his time in actions upon the Case ever since King Henry the 7th his time and in all actions Execution against the person after judgment by our Law in actions personal where Capias lieth in the Process before judgment there Capias ad satisfaciendum lieth after judgment to put the party in prison for Execution than the which although a more rigorous Law were by the 12 Tables whereby Corpus inter creditores secari licebat whereof Rivallius saith an example is not read in any History or other Book yet afterwards by their Lex Petilia it was decreed as Livy reporteth that no man should be for Debt nervo aut compedibus vinctus which notwithstanding was used sometimes by the violence of Vsurers and therefore sometimes renewed by the Laws Portia Sempronia Popilia and other whereby terga civium were made tanquam sacrosancta Also by the Lex Julia if the Debtor would leave his goods his Body was free as appears by the same reported in the Code But this Law Hottoman thinketh not to extend unto Banquerupts or such as are non solvendo by their own default But by the Anthentiques and Latine Law if The Civil Law more mild of latter time than ours for Execution against ones person in debt c. a man were poor by some external misfortune and not by his own means if he would ejurare copiam bonam he need not leave his goods for his Creditors nor subject himself to Prison which is so mild a Law towards Debtors that it hath no proportion
with ours But where by our Law we do not admit that Beast for the Plough shall be taken upon Elegit facias which is constituted by the Statute of Westminster the second although that be referred by Polydore to Mulmusius Law therein the Law of this Kingdom agreeth with the Civil Law as it appeareth in the Code so that we shew in the Execution of judgments there are some differences even in the Civil Law it self according to the alteration of times at the first far more severe but in the end much more mild And also by these forementioned examples there are differences betwixt the Civil Law and our Laws of England in the Execution The Civil Law differed from it self in different times for Execution on mens persons of their judgments Many more differences might be found both in this and in the other forenamed points betwixt both the Laws if time did serve or were required to search and set down the same But this may suffice as a tast for this time and purpose CHAP. IV. An answer to certain Objections usually made against the Laws of England BY way of imputation or indeed of Scandal there are usually amongst others these Objections made against our Laws of England 1. That they are written in a Barbarous speech even to Scholars unknown or not understood 2. That they are framed without Method or order 3. That they have no Maximes or fundamental grounds whereon they consist or at the least not such as are certain 4. That the Judges opinion which may be extended according to humane affection doth make or alter the Law so that it consisteth not say they in scrinio principis that is in the Records of the State but in scrinio pectoris of the Judge the key whereof the Judge may alter and by a new lock fastened on make a way to come at unheard of reason according to his own conceipts which must be admitted for Law at the least for the time For the first Objection I conceive it to flow rather from some suddain mislike before the matter be understood or else some quaint and dainty palate who distasts all things be the matter never so sound and substantial which doth not savour of perfumed eloquence and polished phrases of Rhetorick than upon due consideration of the language it self for although it must be confessed that the speech and phrase wherein our Law is written is rude and unpolished in respect that no Nation speaks it as it is now written and that the same Nation from whence it is derived cannot understand it precisely without instruction yet that it is simply Barbarous or that thereby the Law receiveth any disgrace may well be denied For first admitting there were no other aide in the defence hereof than that which the Lord chief Justice Cooke hath in his preface to his third Book of Reports Siquidem relationum istarum phrasis aut stylus tibi minus arrideat ut rei ipsius subjectae praestantia atque utilitas delectet satisfaciat Vnde fiat ut totum te admirabili plane dulcedini cogitationis atque scientiae dedas addices Admitting that this were the effect of the defence surely we alone should not be driven to this shift to praise only the matter and to reject or omit complements of form for let the opponents herein but view other faculties which they that profess those faculties would have to excel either of the Laws multis parasangis observe Other Arts written in as ill stile and phrase as is our Law but the excellent part of the mixt Mathematiques as judicial Astrologie it will not be denied but some nay most of their antientest Authors especially which wrote in Latine do by their Barbarism in the Roman tongue equal the worst seeming Soloecismes in our Common Laws witness hereof Haly Ben Rodan his Comment upon the quadripartite of Ptolomy in Latine to whom may be added Guido Bonatus most especially with Alchabitius and Johannes de Saxonia his paraphrase upon him it may be truly said that a pleading in Westminster-hall for Latine or a Case argued in a private Inn of Court moote for French shall respectively in many phrases and good words exceed most of these authours nay in this Art the best tongued authour namely Julius Firmious is accounted the The best Author in some Arts writeth the worst phrase and stile worst Artist How many Latine phrases or words are there to be found in the side of a leaf in any of the chiefest and antientest School Divines who respected not the language but the points of learning which they handled Neither in this or almost in any other study doth the language add to the Art seeing that as the ancient Hieroglyphical notes to express words and syllables were added only as instruments of memory and tradition and in other Arts the voces secundae intentionis as the Logicians call them Terms of Art do not give grace but help to learn the Art being the Terms of Art give no grace to the study or language but only help to learn the Art whereof they are written therefore the language is but an instrument to the science which it contains and is as it were the Table wherein is pictured the sence of the Law So the Civilians say tabula picturae cedit and yet most modern languages nay in a manner all have bene forced to borrow from Most languages forced to borrow words of others other words and names especially of Art and invention neither can the lofty stiled Greek or the more penurious yet pleasant Latine name all things in their own language according to their proper Nature except they participate of the Hebrew which doth name things according to their Nature but that cannot be done by any other language so fully Besides all this it may be shewed that the speech wherein the Law is written is not to be so much disliked in suo genere for it appeareth by the Histories of ancient time that when the Normans came hither the The Conqueror commanded the pleading and Statutes to be done in French pleading of Law Statutes and such like things were commanded to be all in French so saith the Abbot of Croyland Normani enim ipsum idioma tantum abhorrebant quod leges terrae statutaque Anglicorum Regum lingua Gallica tractarentur pueris etiam in scholis principia literarum grammaticarum Gallicè non Anglicè traderentur Whereupon as it appears our Statutes which are extant especially those of Edward the first his time though not all Edward the second Edward the third and so forward were the reports in the Nature of responsa prudentum among the Romans taken and published in French which then was not accounted Barbarous for in likelyhood it was the same language which at the first was spoken amongst the Normans and so were all Pleas at the Barr pleaded in French until the 36. of Edward the 3. which although it
to go a nearer way than is to be found is as the proverb is but the next way about for though it be true that the last Judged Cases are most in force and the former many times abrogated or altered yet the old Cases give grounds of Law unto the new and by perusing both the differences of Reasons which make the one firm and the other to fail are best discerned So that surely there is no humane No Study requires more the reading of old and new Authors than doth our Law science which requireth more the revolution of old and new the conference of Precedent and Subsequent matters and in conclusion that exacteth more the Study of the whole body of that science than doth the intire Study of the whole volumes of our Law to make a man to be a perfect Lawyer therefore whether this Compendious digesting our Law into Method be profitable necessary or hurtful to the Students thereof though I must confess I do much affect Method as holding it a principal light of Learning yet as I said before I must leave the Censure thereof unto the Oracles of the Law But if any man will be desirous to follow a method in the Study of the Law or a method for his Memory when he hath studied it he might by distinguishing aright such Alphabetical Distinguishing of Alphabetical Titles a help only for Memory Titles as are dispersed in Fitzherbert Brook and Statham their Abridgments find for his private studies and use a far more orderly and profitable form than the reading of these Books according to A B C do admit Yet this as the rest is spoken under correction of better Judgment Under this head of want of Method Another objection under this head against our Laws is comprehended another objection which some make and find fault withall That our Pleaders use no Method Eloquence or Art in their Pleadings If they mean the Pleadings which are entred in the Rolls had they once tried some tickle points of exception as perchance others have done to their charge and peril they would be of another opinion and it may be then they would complain of the contrary that in the rules and directions for Defences Pleadings in Rolls and at the Bar not Ciceronian but distinct and significant enough Traverses Confessions and Avoidances there are too nice differences and distinctions sometimes exacted If they intend the Pleading and Arguments at the Barr it is true that for Form they use neither Ciceronian Orations nor Syllogistical Arguments in Mood and Figure but yet for matter they do smell as Phocion objected to Demosthenes Orations of the Candle most commonly in savouring of great pains taken with exact quotation of Books and Judgments Neither should there be expected Eloquent invectives or insinuations not fit for the pleaders of Law in such Arguments elegant Forms of Speech such as should tend to the commending or dispraising of the parties as the old Orators Isocrates and his successors were wont And if any use this as some do a little of this Eloquence is too much For Syllogisms indeed they use them not neither are they needful in this Art or kind of Arguing but as they are fittest for the Schools and Universities so if there were need of them there is no doubt but most of their Arguments or Pleadings at the Bar might by Scholars be reduced into Syllogisms though then perchance Syllogisms fittest for the Universities and Schools the concurring reasons of the Law might be made more intricate and as hard to be understood as Aristotles Acromantica especially of such as are not Logicians Now to the last objection against The last objection against our Laws our Laws that they have not fundamental Maxims which are universally true and that the Judges private opinions do usually alter the Laws and so leave it alwayes in uncertainty For the first concerning Maxims or certain Foundations which they suppose are not in our Laws They which read and understand the Law shall find that there are many received Many rules received in our Law without any contradiction opinions and Rules in the Law whereof scarce any contradiction hath been of Opinion much less of Judgment as amongst the rest these of Inheritances That no land can by Inheritance lineally ascend That the Heirs of the part of the Father are to be preferred before the Heirs of the part of the Mother That of Inheritances descended by the Mother the Heirs of the part of the Father cannot inherit and so of the other side With many other such Rules infallible and unchangeable in the Law whereof divers are collected by Sainct German in his first book And the grounds or maxims are so certain concerning some of the noblest parts of the Law viz. about the Inheritances and Escheats that the Lord Chief Justice Coke affirmeth who is best able to prove his assertion he found not in all the time he studied the Law Ne duas quidem adverti quaestiones de jure hereditatum de terrarum ligitima confiscatione sive ut loquantur escaeta aliisque consimilibus But howsoever this opinion stands It is most sure that there are infinite other Rules and Positions in the Law which admit no alteration or question To which it is usually replied It is true that there are many such Rules and Positions in the Common Law which remain still firm and are not contradicted yet they are not Maxims nor That the positive rules of our law may be in some sort reckoned as Maxims deserve not that title as other Arts have and are allowed them The answer is that these positive Rules which are certainly set down and determined for infallible may without any great errour be intitled Maxims of the Law or at least held in the nature of them for authority if not for method For in any Art as to instance in Geometry let a proposition or theoreme be once infallibly demonstrated by principles the Mathematician who made this demonstration upon infallible tokens of truth may not unfitly call his demonstration a Maxime or Principle in respect of authority though not of method as was spoken before the like may be said of our infallible positions and demonstrations in the Common Law whereof there are very many howsoever some conceive the contrary To shape some answer unto the last most usual effectual objection made against our Laws that is that the Judges private opinions and reason do usually alter the Laws and so it is left alwaies in a Labyrinth of uncertainty Although my judgment in the Laws being so slender is not sufficient to answer so important an objection tending so much to the disgrace of our Laws and indeed to the great scandal of the Justice of this Realm the execution whereof dependeth most on these Judgments supposed to be so uncertain yet I will be bold to speak what I conceive leaving the more full answer hereof to them that are much
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
a more speciall Oath may be held as requisite that the Jurors had a more special and particular Oath when they are summoned and do appear but before they are sworn of the Jurie to know whether they have been forestalled by Informations or Persuasions as well as that they will give their Verdict without any particular respects to either side for it is like they will make more conscience being examined upon their Oath before they come to the Trial than after when they have suddenly swallowed the Oath without publick examination of the Justices upon Oath or particular and private of their own Consciences by this Oath And although there is good provision already taken by our Law that exception and chalenge may be taken upon reasonable and just causes allowed by the Law yet since this cannot be certainly known who is laboured and dealt withall before-hand but by the examination of a mans conscience upon a mans own Oath I am perswaded that this would prevent many corruptions in Trials by Juries whereunto the nature of man is subject to be drawn by solicitation of friends promise of reward or fear of displeasure And it would take away the scandal layed upon the Trial of Juries which as it is different from the course of other Laws so being well looked to by these and the like cautions there is no doubt but it is a most excellent kind of Trial especially in matters of Fact whereunto it is principally applied and being thus exactly executed I will be bold to say that it excells the Trialls of all other Laws and is one of the worthiest parts of proceedings in our law whatsoever some Calumniators have said to the contrary whereof he that shall desire to be farther satisfied may find it fully demonstrated in that noble and learned Chancellor of England Fortescue his Book Touching the other point wherein there may be some prejudice in Touching the Judges sinceritie the Trials of Suits for want of sinceritie in the Judges although there are at this time as reverend upright and learned Judges as hath been at any time within this kingdome yet that amongst them there have been always some who might be sometimes led by affection or by some other private respects may not be denied unless we should think that they all and every of them had more priviledge of not crring or of not affecting liking or disliking than either any other Judges or men of any other profession in the world are induced withall Therefore as a great Prince was content nay did command that every day one should come into his Chamber and put him in mind of his estate and to tell him these words Remember that thou art a mortal Man In like sort it is a thing fit to be considered whether it were not convenient that the Judges every Term and at every Assise or at An addition to the Judges Oath least once every year should publickly in Court and in open audience of the people take an Oath That they have not received nor will receive any gift or reward or promise of reward for their favour in any Cause heard or to be heard before them nor will for favour fear or affection incline to either partie otherwise than as the very truth of the matter shall move nor shall receive private Information Messages or Letters of Recommendation to draw them aside from sincerity or to shew favour to any partie but that they shall speedily make known the same in open Court By which means the Judges shall be less importuned by men of power and shall keep their Consciences clear and unspotted If the like Oath were given to the A means for the Judges to avoid importunitie c. Masters of the Chancery who in some Cases and at some times do sit as Judges and most commonly by their Reports do much guide and direct the Decrees in that Court it might perchance avoid much imputation to themselves and prejudice to others But against this there is no doubt but there will be many Objections made As first That this Oath being new Objections against giving the Oath to the Judges and so often taken would argue distrust in the uprightness of the Judges and that it will be a disgrace not only unto them but to the Place wherein they sit and consequently an imputation to the Justices of the Realm that they should not be trusted upon an Oath as Christians ought to be in other Cases And next that it will be an impeachment of reputation to all former Judgments and Judges who were not tyed with so strict a Band. And therefore if this were now necessary then were they in former times let goe with too long raines of libertie and of looseness That which may be answered to Answ to these Objections these Objections is this First That this new more strict and frequent Oath doth not so much argue distrust in the Judges as put them in minde of their Duties no more than the often calling of a Steward or other great Officer to a strict and often Accompt doth presuppose that his Faith is alwaies doubted nay it is the best means for his discharge which most wise and honest men do much desire and so in this Case it may be said that this Oath thus taken is the strongest Argument that may be to free the Judges from suspicion of Corruption whereto they may many times be subject causlesly for what man of any charitable and reasonable consideration will conceive but that he that is more often and strictly sworn to doe his duty will be more carefull to discharge it than he who but once in his life receiveth that Oath And for some part of this Oath it is such that no Judges of this Land have been formerly sworn unto and yet it is such as by the opinion of some both wise and learned is held most necessary For the other Objections That it will be a disgrace to their Places and to precedent Judges and Judgments that these are oftner and more strictly sworn than were former Judges Divers do deem that neither of these consequents will ensue One reason is That if this Oath be a disgrace to precedent or to present Judges then the like would ensue That an Oath taken by a Bishop of this Land not long since of his clearness from Simony and from giving any thing for his Bishoprick would be a disgrace to him or to his Predecessors who had not taken the like Oath before Yet I think no man will conclude so but rather that this is a worthie Precedent fit to be followed and to be left unto posterities Also it may be said the more multiplicitie of Suits that doth increase as indeed they doe dailie the more caution is to be used and the more care to be enjoyned unto the Judges in the Trial of them Secondly The former Judges followed the Oath which was given them and therefore no disgrace to them that
there that bringeth a Ticket under the hands of the Councellors and Officers to whom the same is paid This is an abuse worthy to be reformed and this Statute very necessary to be executed In the 33 year of King Henry the 6. a Law was made that there should be but six common Attornies in Norffolk six in Suffolk and two in Norwich If then the Country were pestered with Attornies and that a Law must be made to ascertain the A Law already made necessary to be executed for the admission of Attornies number which likewise should be elected and admitted by the two chief Justices how much more needfull is it now to have the like Law of restraint for all the Counties of this Kingdom when we see how even in those Shires then thus provided for there are far greater numbers of Attornies and such for the most part as they are specially noted by them who know these Countries to be full of cunning and many of them nourishers of contention and contenders themselves with their neighbours These being commonly the Conduits that convey Suits and Gain to covetous and unconscionable men desiring Law with the losse and impoverishment of many there is therefore great need that their numbers should be lessened and their dispositions who shall be allowed to practise well known to be good and honest A third sort there are of the ministers of our Law which do offer oppression and wrong unto the subjects of this Kingdom in their Suits And they are the Officers of the Courts of Records and their Clerks Abuse of Officers and their Clerks in the Courts of Record whereof many do exact unreasonable and unlimited Fees not or very seldome vouchsafing to set down in a note under their hands what their Fees are but demanding so much or else nothing must be done or if it be first done they will often detain it untill their own demands be satisfied So the Subject must give whatsoever No certainty of Fees in most Courts it pleaseth them to ask Wherein it hath been the hearty desire of such as wish well unto their Country without any private respect unto themselves that there might be a certainty of Fees set down for every Court and the same to remain in written Tables in open Court subject to every mans view whereby the Subjects who have Suits in Law may not have so great cause of loss and of complaint as now they have Of the same nature and indeed a part of this exaction is the excessive Excessive Rates for the writing of Copies Rates taken for writing the Copies of all Bills and Answers Replications and Rejoinders and of all other Records within the Court of Westminster and the Offices belonging to the same First for the foule and Wastfull Writing of purpose wastfull Writing next for the few numbers of Lines in every Sheet and for the smallness of the Paper wherein they write they alwayes demanding so much for the sheet how few soever of lines letters or syllables there be in the same and allwayes they strive to write the least they can with great letters full of large dashes to make the more distance and very spacious lines for their more Gain and the greater Charge of them who are forced to take out these Copies whereby they raise great summes of mony out of the Subjects purses keep good houses purchase much living enrich themselves and impoverish many Sutors at Law If that some reasonable stint of this Writing and the certainty of Fees withall might be set down and observed it would without doubt yield great contentment prosit and ease unto the people of this Land who for the most part feel and some sink under this burden Besides these before mentioned Abuses in the Ministers and Officers of our Law there are some other declinations and with-drawings from the right Proceeding of Law by such as seek to pervert the same As The Judges select certain Lawyers whom they hear most willingly and often first in every Court of Record in Westminster the Judges have certain selected men on whom they are pleased to bestow their favours in yielding them ready hearing before others which being perceived they are the more resorted to and must have the more Fees This increaseth the charge of the subjects and yet many times disappointeth them of their expectation And although it be not unreasonable that the Judge should extend his favour more unto some than unto the rest by hearing them before others yet considering the inconveniency of this favour it were far better forborn and to be some way else shewed unto them that deserve it There is also some Rules of the Courts uncertain and unknown to the Judges defect in the Courts concerning the Rules of the Courts that sometimes the Judges themselves are ignorant of the Rules of their Courts touching the times of Answer Reply Rejoynder Imparlance with the like circumstances whereby they are forced to ask the opinions of the antientest and best experienced Attornies and Officers of the Court touching those Rules where it were much better that time were taken by the Judges to examine these Rules wherein perchance somewhat might be amended for the more speedy execution of Justice and the same set down in writing might be more certain and subject to all mens knowledge with lesse hindrance to Suitors and to their Causes There are also some Courts in Westminster where the Judges as for example the Barons of the Exchequer do alter upon new motions out of Court as in the Chequer Chamber or in other places the Orders Alteration of Orders out of the Court. made in Court And that which was publickly ordered by all the Barons in open Court is often reversed by one of the Barons when either the plaintiff or defendant bringeth his Counsel and upon some new information getteth the former Order to be dissolved which tendeth much to the Trouble Charge and Delay of many Suitors In the Kings Bench and somewhere else as it is said writing out of Record must be twice or thrice unnecessarily copied as upon a Prohibition Unnecessary Copies to be taken out a copie of the Suggestion then after Declaration a new Copy after issue or Demurrer a third Copy whereas each of them sometimes cost three four or five pounds and yet with a little alteration it is thought that one might serve for all The incertainty and intricate ambiguity Incertainty and intricacy of Pleadings of Pleadings in the Courts of Records bring much dammage and danger unto the Subjects of this Kingdom wherein many men wishing well unto our Laws have exceedingly desired That either some certain Formes of these Pleadings if it were possible to be performed might be drawn by expert men and the same considered and corrected by the Judges might stand for good and those Forms to be allowed as in Rome at the first the Forms of Actions were given to the Actors of the Law by the Pretors Or if this may not be performed Advantages of pleadings not to be so penal yet that some other Course were taken upon the advantage of a Pleading mistaken than is in the Case betwixt the King and his Subject If also in Actions personal a shorter A shorter course to be taken in Actions personal and more certain Course were taken than is by our common-Common-law whereof somewhat hath been spoken before as that which the Civil Law alloweth or some other such like for speedy and direct Trial without evasion or circumvention it would yield no small profit unto the People that are forced to prosecute these Suits FINIS A Catalogue of some Law Books printed for and sold by several Booksellers in Fleetstreet and Holborn 1. Rastell's Entries fol. price 3li. 2. Pulton's Statutes continued to the year 1670. price 50s. 3. Cook 's Commentary on Littleton price 18s. 4. Dalton's Office of Sheriffs with very large Additions printed in the year 1670. fol. 12s. 5. Townsend's Tables to most of the printed precedents Writs and Returns at Commom Law fol. 12s. 6. The Law of Common Assurances touching Deeds in General viz. Feoffments Gifts Grants Leases with two Alphabetical Tables by W. Sheppard Esq fol. price 14s. 7. The Country Justice containing the practice of the Justices of the Peace as well in as out of Sessions and with Additions by Michael Dalton in fol. price 8s. 8. A Collection of all the Acts and Statutes made in the Raigns of King Charles the first and King Charles the second fol. price 14s. 9. Lord Cook 's eleven books of Reports in French fol. printed 1672. price 3li. 10. Lord Cook 's Book of Entries fol. price 3li. 11. Lord Hobart's Reports with Additions in fol. price 10s. 12. Lord Dyer's Reports with a new Table fol. printed 1672. price 18 s. 13. Compleat Clerk 4o. price 12s. 14. An abridgement of all the Statutes in force and use from Magna Charta to the year 1670. by Edmond Wingate 8o. price 6s. 15. Fitz-herbert's Natura Brevium Corrected and amended 8o. price 5s. 16. Termes of the Law with Additions 8o. printed in the year 1670. price 4s. 17. Doctor and Student printed in 1673. price 2s. 18. The Compleat Justice in 12o. price 2s. 19. Briddal's view of the Laws of England 8o. price 1s. 20. Littleton's Tenures French and English in 12o. price 2s. 6d. 21. Lord Cook 's Compleat Coppyholder with additions 8o. price 1s. 6d. 22. Abridgement of the statutes that relate to the knowledge and practice of the Common-law in 8o. price 1s. 23. Compleat Attorney 8o. price 3s. 24. Fortescue of the Laws of England 8o. price 3s. 25. Placitae Latinae Redivivae with Additions printed Mich. Term 1673. 4o. price 6s. 26. The Transactions of the High Court of Chancery both by practice and precedent with the Fees thereunto belonging in 8o. by Will. Tothill Esq late one of the six Clerks printed 1673. price 1s. 6d.