consideration then to deale warily where there is great danger to any partie that a man may not rashly determin of a mans credit bloud or life sith these things be of that qualitie that being once lost they cā neuer be repaired But to know whether things be fauorable or odious the things are not to be cōsidered in thēselues but theffects which proceed of thē as dower is fauored in respect of the widowhood desolatenes of the woman whose husband is deceassed 6 It must likewise be obserued that when a thing is forbidden all things that follow therof are likewise forbidden as on the contrary part when a thing is granted all things are implicatiuely graunted with it whereby we may attaine to the thing graunted and if the beginning of things be forbidden the end also is forbidden according to the rule Qui meditatur principiū meditatur etiā finem and things are principally forbidden for the end to which they are directed But here a distinction is to be vsed for where the consequēt is of it self auaileable and doth not necessarily depend vpon the power and vertue of the antecedent it may be of force though the antecedent be forbidden for then it is without the cause of the prohibition but if it depend essentially vpon the antecedent it is otherwise For the better vnderstanding of this rule it is good to be seene what may properly be sayd a principall thing and what an accessorie That is principall which is of greatest moment an accessorie thing is that which by consequence goeth with the principall If the Queene graunt vnto one Cognitionem causae her highnes graunteth vnto him the hearing of the parties and the examination of witnesses So the margarites or pretious stones that be in gold or siluer do yeeld vnto it and do passe with it because they are but the ornaments thereof and were applied to the decking and beawtifying of it An accessorie briefely may be taken to be that which is adioyned to a thing and is lesse then the thing to which it is annexed either in substance or in valew or in respect both of substance and valew 7 The validitie of an act must be especially fauored vnlesse there be a manifest nullitie in the proceeding Therefore whensoeuer the nullitie of an act shall appeare by the proceeding of the parties which is sayd to be euident and notorious and excluding all cauill it is to be held as voyd but if the nullitie proposed do not so appeare but requireth a deeper search because many times error is obiected that the Sute may be protracted there consideration must bee vsed But in doubtfull causes interpretation must bee so made that the acte may rather stand then fall But the obiection of error is alway to be fauored when the error assigned doth concerne the figure solemnitie of iudgement And therefore he that will dispute of the validitie of an award or iudgement ought to be warie and carefull that he put the axe to the roote and that he first examin the iurisdiction and power of the Iudge because that being the basis and foundation of the iudgement if that fall the rest cannot stand It is therefore to be cōsidered whether he were a competēt Iudge by reason of the cause of the parties of the time and the place For by reason of the sute or cause a Iudge may be incompetent as if the cause belong to a meere iurisdiction and the Iudge be only a Magistrate in a certaine corporation or if the cause be ciuill and the Iudge who taketh connusans of it be Iudge of Gaole deliuerie or if the Iudge be secular and the cause Ecclesiasticall or if the Iudge haue some other limited iurisdiction and he taketh connusans of a cause not cōprehended within the lists bounds of his commission he may be incompetent also by reason of the place as if he iudge of causes without his territorie or circuite or els within his territorie but yet in a place exempted he may be incompetent by reason of the time as if he did iudge before he had his commission or after his commission expired or if his iurisdiction were suspended as at festiuall times which wee call dies non iuridicos or at such a time when a greater Iudge was present or if the Iudge were called to a higher place or if he were forbidden to exercise his power And also the person qualitie of the partie is to be considered because some by reason of a legall impedimēt are vncapeable of the aduantidge of lawe as these that are outlawed excommunicate and out of the Queenes protection And there can be no fast roote or sure ground of their proceedings for such are to be denied audience because their offence default ought not to find patronage Likewise there may be a default in the party making an Attorney as if he could not make an Attorney in that cause or else by reason of the Attorney himselfe as if he be vncapeable of such an office as being not lawfulby aucthorised But if a iurisdiction be giuen and graunted to one it is to be intended to be giuen him accumulatiue non priuatiue rather to enlarge then to diminish his power And though a Iudge of the Gaole deliuery being appointed and ordained by commission to the hearing of causes criminall may not principally inquire of causes ciuill and pecuniarie because it is a Iurisdiction limitted yet incidently and as it were by the way for the better examining of capitall crimes hee may take notice of such things But if the processe and iudgement bee framed against one who is not onely not subiect to his iurisdiction but is also free from the iurisdiction of euery man liuing as if the partie be dead concerning whome no acte can be conceiued or vpheld the Iudgement is voide Thus haue I shewed to the Student in so generall manner as the order of this treatise doth require and likewise so particularly as to his vnderstanding may be playne and manifest what course hee ought to take in examining the cases reasons opinions arguments proceedings and iudgements whereof he shall finde great store and aboundance in his bookes Now I will by fauour discend to describe and delineate vnto him briefely for it is a matter which may be handled plainely and in fewe wordes what course hee ought to obserue in the exercise of his studie Of the exercise and conference which the Student of the lawe ought to vse The fifth Chapter EVery art and knowledge produceth effects and like a good weapon is vnsheathed vsed in time conuenient otherwise it would be quickly ouercast and eaten with rust But there is nothing that with so much brightnes and glory illustrateth our knowledge as the orderly and iudiciall applying and accommodating of that which we haue read For as a man knoweth by his bookes so he is known by his practise and by that which he
no relation to publik profit For Hermogenes said wel that euery law was made for the good profit of men And Plato saith that a Law-maker ought to haue regard of 3. things especially namely that the cōuenient liberty of the comon weale may not be impeached by the laws that they may preserue amity amongst the people that they may furnish thē with wisdome Wherefore they that dispise laws haue no care of comon profit because they were made for comon vse without law which I interpret to be an order established by authority neither house nor city nor natiō nor mankind nor nature nor world can be And therfore Cicero saith that our ancestors were of such vertue wisdome that in making of their laws they had no regard but of publike good For they would not write any thing to hurt and if they had written any such things it would haue bin reiected as soone as it had bin vnderstood It is manifest therefore that the end at which the Law doth ayme is the generall aduantage of common societie in a iust maner distributed and dealt to euerie one For non sufficit bonum fieri nisi bene fiat It is not sufficient to doe that which is good vnlesse it be done in good sort and therefore let not any man which vndertaketh this profession lay conscience aside for though the charge and calling be seculer yet it must be religiously handled For God is the author of the Law and the reuenger of the abuse thereof The weight and measure saith Solomon are God his iudgments and therfore if any man maintaine any wrong by colour or pretence of Law let him know that though man be hurt yet God is offended ye do not execute the iudgement of Man but of God saith Iosaphat God is the beholder and vmpier of Counsailes and Iudgements and surely if a man do well discharge this weightie and excellent function there is no man of any religious habit or vocation in higher place or greater reckoning with God So much the more are they to bee reprooued who exercise sychophancie fraud caueling in the handling of causes being wresters of Lawes and wringers of money whose conquest in bad causes maketh them triumphe as much as Romulus did when he had killed his brother nay as Atreus did when he had cōpast the death of his brother Thyestes boasting and glorying nunc parta vera est palma nunc meas laudo manus Now haue I gotten an honorable victorie nowe I praise my handie worke but they in whom conscience beareth stroke are farre otherwise addicted and shal be hereafter otherwise rewarded Nay euen in their life time do they possesse the ensigns of authoritie dignitie by good right may they challenge many special fauors immunities indulgences Constantine the Emperor gaue to the professors of the imperial Lawes full perfect freedome from all collaterall charges taxes and other burdens of the cōmon weale and he decreed also that certain yerely pensions should be paid vnto them out of the Treasury the Emperor Valent. would haue thē which by the space of xx yeres were professors of the law to be illustrated by the name of Comites a name of excellent dignity Many other priuiledges benefits are mentioned in the Ciuil law which belong as well to Studients as to professors and hereupon had that saying his originall Dat Galenus opes dat sanctio Iustiniana Ex alijs paleas ex istis collige grana Neither hath England bin vnkind or strait handed to men of that coat and calling for in old time as I find in M. Plowden who was credibly infourmed thereof there were fower Reporters of the cases of Law which were chosen men and had a yerely stipend for their paines and trauaile therein paied by the king But some will say that God forbiddeth vs to contend Who denieth that but he doth not forbid to Iudge determine controuersies there is great difference between iudging and contending for though God do forbid thee to beate a poore traueling man yet he doth not forbid thee to bind vp his wound when he is hurt and maymed of others So though he do greatly abhorre the hatred rancor malice and disagreement of men yet he is wel pleased and contented that such pernicious contagious diseases should be cured Let him that condēneth the fault approue the remedy One mā rageth with a burning desire of reuenge an other cōueieth to himselfe an others mans goods by craft whom when charity duty cannot bring into the right way his disloial dealing must be repressed by the seuerity of Iudges Moses Dauid Solomon committed no sin when they caused wicked men to be rigorously punished though Christ do condemne a quarrelous reuengeful person yet he leaueth to the Iudges their authority whether they rule order causes by the Lawes customes of nations or by the law of Moses Ioseph Daniel Naaman the Centurion did gouerne cōmon weales by the lawes of the heathen Surely the politicke lawes of Kings Magistrates are greatly to be heeded regarded which Christ himself allowed when he paid tribute to Caesar And the profession practise of the knowledge of lawe is warrāted by the example of great men who would not haue borne the names of professors if the science had not contained in it singuler wit excellent wisdome profitable directions for the whole course of mans life It is well knowen that the Camilli the Curij the Fabritij the Fabij the Claudij the Scipioes the Crassi the Iulij the Ciceroes the Scaeuolaes were singuler men and singulerly skilled in law And to giue thē their proper appellation were lawyers These men gouerned their cōmon weals not in the shadow in darknes or corners as the Grecians did but in the cleare light of the Sun and in the face of the world vsing experience as a Pilot against the boysterous turbulent affections of the people And therefore Virgil when he distributeth seueral sciences to seueral Countries appropriateth the science of gouerning cōmon weales to the Romaines Tu regere imperiopopulos Romane memento Parcere subiect is debellare superbos Mind thou O Romaine men by law to guide To spare the meeke and ouer-master pride But some accompt it a matter of too great curiosity that the laws which should be plain manifest to al should be reduced to an art obscured with difficult cases shadowed with conceited termes and as it were couered with cloudes and wrapped in darknes to whom I answere that it is very expedient that there should be a certaine art and science of the Law generall rules preceptes and conuenient discourses For the particuler things which do fall vnder the obseruation of law ar infinite the weaknes of mans memorie cānot tollerate the multitude of particular lawes and therefore it is conuenient that that
which we call aequum bonum which in plaine termes is nothing else but perfect reason should be comprehēded and deliuered in certaine generall preceptes and Plato alleageth this for a reason because it is necessarie that there should be Regia disciplina a princely science for he suteth it with that name which may by a generall censure order and dispose of all things without regard of euery particular circumstance For the certaine knowledge of matters it is good that the law should be bounded by certaine rules limits For a mā could not certainly know what were his owne and what an other mans vnles the Law should as it were by finger point shew vnto him what when and howe it were his and therefore true is that saying of Cicero Omnia incerta sunt cum a iure discessum est If you depart from Law there is no certain state of any thing And his opinion is in an other place that our inheritance rather cōmeth to vs by the law then by our auncestors for though they doe giue is or leaue it vnto vs yet it is the law which doth settle it in vs and doth preserue the possession thereof free and inviolate vnto vs. Wherefore it is to good purpose that the Law should be definite in it selfe and should consist of certaine conclusions which should be as the listes and periodes of the science by the contemplation of which a man may be instructed and sufficiently furnished for particuler causes and euents For the particuler case lyeth as it were embowelled and is implicatiuely contayned in the generall learning and there is nothing in the Law which may not be reduced vnto some vniuersall theoreme which may easily be conceyued and remembred because it is generall And though the professors of the Law doe make-particuler arguments of speciall causes and do admire examples or cases to the illustrating of that which they do principally handle yet the Law it selfe is comprised within certaine rules Neyther ought it to trouble vs that the Law bookes are so huge large and that there is such an ocean of reportes and such a perplexed confusion of opinions because the science it selfe is short and easie to one that is diligent according to that saying Industriae omnia serua fiunt All thinges are seruants to diligence or come at her commaund and artes ar not to be estemed by the greatnes or smalnes of the books but by the goodnes of their rules And though the lawes which do vind mens liues maners ought to be vnderstood of all that their prescript being knowen men may decline frō that which is for biddē follow that which is commaunded yet that may be done either by their own means or by the meanes of others if a mans braine be no fit mould for the Law let an other mans mouth be his teacher Hence commeth the name of Counsailor because in doubtful causes he may resolue giue counsel Whereby appeareth aswell the necessity as the excellent vse of the calling for what can be more conuenient or of better oportunitie then that a man of experience should shew the way to one that is ignorant It is therfore expediēt that there should be lawes written that such lawes should not be altered without vrgent occasion for it is a fonde part to striue against the course stream of lawes customes receiued A great question it hath bin heretofore whether common weales were better gouerned by written Lawes or by the present voluntary conceit of the Magistrate This matter because religion it selfe hath committed ciuil duties to the wisdome and ordering of man ought to be measured by the examples of wise gouernors by popular sense What good cōmon weal hath there euer bin without written Lawes which haue bin vsed by the Egyptians Cretensians Athenians Romanes Iewes The writing or the engrauing of lawes in Tables is a principall cause of the certainty of the same without certainty it should be of smal credit for what authority or force should it haue if it did alwaies change like the Moone or like Vertumnus but when causes ar decided by the opinion wil of the Magistrate the power of gouermēt may be in the hands of such as be vnskilful or wicked so either for want of skil or conscience Iustice may faile of her course How often might the pretēce shew of iustice beguile vs how often might iustice be peruerted by fauor or malice But if Lawes were not generall should not sometimes restrain Magistrates gouernors great inconueniēce would ensue euen as great as happened in Athens by the violent domination of the 30. tirants who when they had cancelled disadnulled the Lawes did exercise a common butchery and slaughter of good men Wherfore as in dangerous tempestes the ship is not rashly cōmitted to the winds but there is neede of a skilful Pylot by cunning carefulnes to gouern so the wauering passionate mind of the Magistrate must be ballassed and weighed downe by Law least his own priuate affections do driue him from doing Iustice as from the hauen Aristotle affirmeth that God ruleth that common weale which is gouerned by a written Law because the Lawes are the champions and defenders of conuenient libertie then which there is nothing more pleasant in this life for what thing can be more happy then to be free from the feare of iniury safely to inioy the societie of men and therefore he would not haue the gouerment of the common weale to be committed to any one man though very vertuous without the regiment and direction of Lawes Neither let any man say that I do sinisterly iudge of the natures dispositions of men in that I accompt no man of so approued and speciall vertue and fidelity that the mannaging of common affaires may be offered vnto him to order them at his will and pleasure without the appointment warrant of lawes surely I could wish that euery gouernor were a Numa But yet I would haue the law to be ioyned with the Magistrate in the act of gouerment Neither do I fancy or figure in my minde any happier common weale then such as may accord with the tenor and progresse of humaine affaires If a man should imagine that the aucthoritie of gouerment were in the handes of the Stoikes such as would neither be moued by hatre nor fauour though they in other respects were very vnfit to gouerne how shall their humors be satisfied who had rather be gouerned by written lawes then by vpright Magistrates for such is the madnes and frowardnes of some that they wil not be contented with the equitie and faithfull dealing of the Iudges but will still contend by the rigor and dint of law and will trie all extremitie being often times more at iarres at oddes with the Iudges then with the aduerse partie here the aucthority of Iudges will be weak vnlesse the
lawes publikely receyued do strengthen it so that in the written lawes there is not onely a safegard for innocency against iniury but also for the Magistrate against the importunitie of the people But as wayfaring men whilest they trauaile are not afraide of going a stray when Mercuries image doth point out vnto them the way that they are to goe so good men when a certaine law is proposed vnto them when by it they know what euery man ought to perform what to auoyde they are secured and do wholy repose them selues in the protection of lawes To the intent that the Hebrewes might well agree haue good order amongest them selues God did enact and establish certain lawes that they might iudge by prescript and rule least the law being ambiguous might procure dissentions And other people and nations haue either by the tyrannons domination of Magistrates or the outragious discord of the people bin enforced to receiue Lawes as the square and measure of their actions In the Citie of Athens when there was continuall debate about the difficult points of the law thē in force there arose three factions of men not of the worst sort but yet not well agreeing in matters of state the Citie by this meane being greatly molested and the hartes of men being edged exasperated by the festered sore and cankerworme of contention the gouernment was committed to Solon he surueying by depth of iudgement the weake and impuissant estate of the Citie made Lawes whereby peace and contentment were restored And when he saw that these Lawes were the sinewes of the good estate of the citie he determined that whosoeuer should hold any iudiciall place should in precise tearmes take oath that he would iudge according to the Lawes This was also the cause why the Romanes dyd flie to a written law the Magistrates dyd arrogate assume too much to them selues the people did exceedingly grudge and murmure that their honest libertie was impeached by the maner of their ruling and the best men were at variance in matters of Law so that it was thought meete that some equall Lawes should be in force whereby the rashnesse of the people the violence of the Magistrates might be moderated For this cause the Lawes called the Twelue tables were prescribed to the City which yoak was willingly receiued because without laws they knew their common weal could not prosper nor continue And as there ought to be a certain forme of Lawes so these lawes ought not to be altered or abrogated wythout great occasion the euident aduantage of the cōmon weale There was a Law amongest them of Locros that whosoeuer would make a motion or inuectiue against any receiued law should therof deliuer his mind hauing an halter about his neck if it were agreed by the assembly that the thing which he indeuored to perswade were for the good of the common weale the man was safe receiued cōmendation but if it were disallowed and reiected as an vnprofitable admonition he was streight way hanged and receiued death as the guerdon of his innouation And in Athens there were a kind of men called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who in all publike meetings did sit amongest the chiefe Magistrates did put them in mind not to decree any thing against the Lawes in force Thus it is euident that both the making maintayning of lawes is necessarie And it is rightly said of Cicero that the Law is as necessary for the gouermēt of a state as the soule mind is for the preseruation of the bodie this saith he is the bond of all dignities and degrees which are in the common weale this is the foundation of libertie the fountaine of equitie The will counsel decree of the Citie is contained in the lawes as the bodie can doe nothing without the soule so a citie without Law cannot vse her actions power or aucthoritie The Magistrates are the ministers of Lawes the Iudges are interpreters the people are the Seruants that they may haue true libertie The Law is thus defined by Cicero Summa ratio insita á natura quae iubeat ea quae facienda sunt prohibeatque contraria A principall reason ingrafted in vs by nature which commaundeth the things that are to be done and forbiddeth the contrarie and all the particuler and seuerall lawes of diuers nations are but the branches of this law for the lawes be certain and cleere intelligences and rules whereby the mind is addressed to pursue that which is good and to eschew the cōtrarie and they offer to the mind the formes and Ideaes of vertue and dishonestie So that in the sacred precepts of law as in a christall glasse a man may perceiue what he may doe with praise what he cannot doe without infamie for the common places which be handled by diuers of common duties of that which is truly good of that which is perfect happines of the best estate of a common weale do not so sufficiently qualifie and instruct the vnderstanding as the law it selfe But here I shal be crossed by an other obiection that great tedious are the labors which are to be sustained in the study of the law Surely there is nothing of weight or woorth which may be compassed without paine trauaile and yet if the paine be compared and ballanced with the profite it is but as a few drops of haile to a whole shower of Manna What would not a towardly man do what would he not vndertake by his wisedome warines to keep all danger from the bodies heads and lifes of the innocent to preserue his memorie from obliuion and silence to be of great accompt amongst the greatest to attaine to that knowledge which is the highest of all humane artes and sciences and though it were as hard a matter for a young gentleman to gaine the knowledge of the lawe as it was for Phaeton to ascend vnto the Chariot of the Sunne who ere he could accomplish that was to passe through vncouth wayes and by the ghastly formes of deformed creatures by the terrible Signes of the Bull the Lion and the Scorpion though I say a Studient ought to haue all the lawe perfect and to passe through a multitude of cases iudgements Statutes arguments treatises comments questions diuersities expositions customes of courtes pleadings mootes readings and such like yet sith there is no arte nor science by which the common weale receiueth so great benefit sith there is no course of life no time of age no estate of men which can either florish or be without the safeguard of lawes and sith the difficultie of the science is rewarded by the dignitie credit and ample fortune which belongeth vnto it the hope of them which employ themselues in this studie ought not to waxe faint nor their mindes to be daunted with the labour and paine which all artes require but they ought to be incited and allured to proceede in their studies
And Solon was not ashamed to say that in his old age he was a learner And Iulianus the Lawyer sayd that though he had one foote in the graue yet he would haue an other in the schoole The next thing I require in a Student is temperance which I do not take so strictly as Aristotle doth who defineth it to be a restreint from corporall pleasures which are obiected to the sense of feeling but would haue it so largely vnderstood as Plato Cicero and now of late time Scaliger and D. Gentilis haue taken it to be a restreint of the minde from all voluptuousnes and lust as namely from couetuosnes excesse of diet wantonnes and all other vnlawfull delights A Student must in his diet be temperat and abstinent for as Musonius sayth Continency in dyet is the step to wisedome A fat and full belly yeeldeth nothing to a man but grosse spirits by which the sharp edge of the minde is dulled and refracted and too much meate cast into the stomack doth ingender nothing but cruditie and diseases This measure must be vsed in our diet that no more be taken then will suffice Seneca prescribeth a good rule Famem fames finiat Let hunger end hunger which is nothing els in plaine termes but that a man should rise with an appetite being rather satisfied then filled Yet he that feedeth more plenteously is not to be reprooued if his bodie do stand in neede of more copious nourishment and a man must not so abstaine that the functions and duties of the minde and bodie be hindered Good and moderate nourishment doth quicken the spirits and they do giue strength to the braine but that which is vnwholesome and immoderate doth stop thicken confound and destroy them As in diet so in other things it is good for a Student to haue the rule and mastery of his mind and appetite neither so to let slip the reignes to his desire that he will for any commodious respect bring himselfe to shame and obloquie and for a present aduantage incurre a perpetuall discredit Plato hath a sentence worthie of obseruation Et dicere facere ea quae decent ad sobrium prudentem hominem tantum pertinet To say and to do the things that are comely belongeth only to a sober and wise man That example of rudenes vsed by certaine Florentine Embassadors is to be auoided Iouius reporteth it They were sent as Embassadors to Charles the fift and Pope Clement the seauenth staying at Bonomia and being Macthants caried with them such was their extreame couetousnes certaine wares to make gaine of thinking they should be free from custome as going vnder the name of Embassadors necessaries But this being perceiued to the two great Estates moued the Emperour to laughter and the Pope to anger who was a citizen of Florence The Legates departed with infamy which they well deserued for abusing so honorable a calling by such base indignitie which may be a warning to all to preferre their credit before their greedie desires Dilligence in the pursuing of any studie is of great weight and moment and in the studye of the Lawe it hath principall force and effect for the cases are many in number which must be read remembred and applyed which cannot bee compassed but by extreame diligence And whereas some pretending a lumpish idlenes would haue the Lawe measured with narrowe limits and woulde haue the multitude of volumes cases rules and diuersities abridged and made lesse surely they giue large testimonie of their great desire of ease But ease is a very badde medicine for difficultie and their pretense is wholy repugnant to reason yea to possibilitie They that would haue fewe lawes must procure that there be fewe causes and little busines which it is not possible for any to bring to passe If it were possible for these faint students to take away the infinite and the innumerable affayres and actions of men then that which they require might sort to good effect But that lyeth not in their power and therefore they should surceasse theyr sluggish surmise For this cause Ludouicus Viues is iustly reprehended of Albericus Gentilis in that he held that all things might be finished by fewe lawes whome Gentilis affirmeth to fight against common experience For if many contentions or controuersies should happen which none can bridle or preuent if the lawe shoulde not handle discusse and determine them all the lawe shoulde doe iniurie and it should not be the handmayd of Iustice it should not Suum cuique tribuere So that in the Students minde this resolution must bee fixed not to sinke vnder the burden but with all conuenient industrie to followe hys Studye neuer to be wearie of paynes nor to slacken his endeuour sith nothing of price and accompt is purchased without great labour by which hee may attayne to the knowledge of many excellent thinges more worthie of admiration then prayse Neither is it seemely to pretende weakenesse of bodye and tendernesse of complexion when health and strength doe well serue and may well be imployed in Studye Ciceroes bodye was neyther of yron nor of oake yet hee was not broken nor in manner altered by continuall night-watchings noone-sittings and morning-risings by many laboures contemplations and studyes by the great charge of hys houshoulde by the weightie care of the common-weale by writing manie bookes and epistles without number as Cardanus well obserueth and why should any man despaire to doe that which another hath done especially hauing the like disposition of minde the like faculties and meanes to attaine to knowledge and the like desire This diligence doth chiefely shew it selfe in reading and hearing It is not fit for him that heareth or readeth to haue a mind wauering from the purpose and as it were going on pilgrimage A man is then said to floate in fancie and to wander in thought when hee doth not bend his minde to that which is handled and when he is amongst his bookes in bodie but not in minde or when he is present at some reading and doth not shew himselfe attentiue but doth number the tiles of the house or buildeth in the aire or doth nothing lesse then that which he should do but the force of the mind must bend it selfe to that thing only which is to be conceiued For the power of our mind and vnderstanding is more strong when it is vnited then when it is dispersed and distracted into many parts Pluribus intentus minor est ad singula sensus But as these things forenamed are of great consequence and value to the Student so wisedome that rare and excellent vertue of the mind is of great importance which I do rather exact then require in a Student for without it nothing can be done decently or perfectly and surely to a Student of the law it doth specially appertaine for it doth consist in the cunning
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
sound so his will is to be construed and the wordes of the contract be the substance of the contract 3 When the opinions of the learned in the Law are repugnant the one to the other it is the safest and best way to follow that opinion which is most agreeable to reason for if contrarie reasons be probable the better of them is to be chosen and that which is more consonant to Equitie and where the reason of the Law doth faile there the disposall of the law doth faile As of the contrary part where the reason of the law taketh place her the law taketh effect But if contrarie reasons doe seeme to be of great force wherof the one tendeth to a publique good the other aymeth at a priuate aduantage that which is for the common good is more to be imbraced fauored followed for that which is good to many must needes be good to euery particuler person and these things which are generally expedient ar with good reason preferred before such things as do peculiarly profit But that reasō which is for the profit of a priuat man and doth not preiudice cōmon right may well be admitted Publike profit may be considered after fower maners 1. When profit doth accrue both generally particularly as by the gouernment of Magistrates 2 when the profit is general but not particuler as locupletatio aerarij the enriching of the Treasury in Cities Townes corporate 3. when the profit is priuate but yet a publike good commeth of it as the dowry of women and the infranchising of Citizens 4. when it doth so profit particulerly as that it doth not disprofit generally g. as when we say that it is not expedient that men should mispend their goodes or throw them into the Sea That reason therfore is of more force in law which is more generally commodious Atque ipsa vtilitas iusti prope mater et aequi It is good therefore for the Student to fift out the reason of the Law that by very diligent earnest search for the reason of the law is the life soule of the Law Wherfore not without good cause is Bartolus reproued of the Ciuilians for that he denied reason to be of the essence of the Law And surely I thinke there is no Law wholy without reason I mean which was not grounded vpon reason at the fift making of it Yet I will confesse that the reason of many Lawes is so obscure and vncertain that it can hardly be found out conceyued or deliuered The Law is the inuention of wise men who would not make any thing publique without reason though the reason of the Law may be hid from him from me and from a number of men Neither are we to think that any Law is therefore without reason because a reason therof can not be rendred for as Cicero said well Iniquum est quod accidit non agnoscere si cur id accidat reperire nequeamus It is an vniust thing not to acknowledg the thing which hath happened because we cannot find out the reason wherfore it happened It is not good to affirme that the Lawes made by wise men do want reason because we can not discouer the reason But as I do not like Plato his conceit whē he forbiddeth yong men not to inquire of the reason of the lawes So to be too curious in the inquisition of it wil be rather matter of trouble then of praise to the Students Therfore it is a point of humility modestie to think those things which by graue sage men haue bin established for law not to be without reason though the reason therof can not be discerned And that which Gentilis wittily speaketh of the Ciuil law may be affirmed of the cōmon law of this realm Rationem vbique habet sed non vbique conspicuam Castrensis is so peremptory for the reason of the law that he boldly auoucheth that he neuer saw any law wherof he did not see the reason Theodosius did ascribe such aucthoritie to the deceassed professors of the law that he would haue their answeres in doubtful matters to haue the force strength of a Law And the same thing was done by Augustus as Pomponius reporteth But yet I could wish as Gentilis Alcitat do require that the aucthorities and cases of the learned writers of the Law should rather be weighed then numbred that is should rather be examined how they accord with reason then how many they be in number but if it so fall out that two men of great iudgemēt do dissent his argument is to be held for Law which reason doth informe enforce to be agreeable to the truth For no man will intend the meaning of the Law to be that the opinion of any man though singuler in knowledge should be preferred before the truth For both the Lawyer Iudge are the ministers dispensers of Iustice of the giftes of God are seruants to God him selfe but the seruant must not do that which the Master will not permit but neither Iustice nor God will do any thing against the truth Therfore neither the Lawyer nor Iudge ought to do any thing against the truth If Iustice should iudge according to opinion not according to verity it should thē do iniury which thing is against her nature And though many arguments be made for the preseruing and maintayning of the rigor of Law yet none of them ought so to be admitted against iustice and truth as that occasion of iniurie may seeme thence to arise whence right and equitie should proceede because no reason of the lawe no course of equitie will tollerate that those things which haue bene conueniently introduced for the profit of men should be against their profit with a more hard and rigorous interpretation restreined For these things which be established for a certaine end ought not to worke the contrarie But some perhaps will obiect that a Iudge ought to determin and a Lawyer ought to argue according to the knowledge which he hath by the written lawe and that is the reason and conscience of a Lawyer as he is a Lawyer But surely such arguments are not proofes and such iudgements if they be not according to the truth of the thing it selfe in reason are not sound nor maintenable For euery proofe should be a true assertion and euery iudgement the rule of truth And how can that seeme iust according to the lawe which appeareth to a mans conscience to be vniust Surely the light of the truth in an honest mind dimmeth and obscureth all cauils and quillets And it is a friuolous dreame to thinke that a Lawyer hath one conscience as a Lawyer and an other conscience as a Christian For he hath but one soule and knowledge of the truth and therefore but one conscience for conscientia is cordis scientia and no reason
will require that a lye by any distinction shoulde bee preferred before the truth The principall meane to enquire after the truth of euery thing is to examin of two or more contrarie reasons whether is more probable That which is plausible to common vnderstanding is tearmed probable and wheÌ„ the words of a couenant or deuise be cleare manifest we follow the literall sense of theÌ„ without farther inuestigation because in things that be certaine and apparant there is no place for coniecture but wheÌ„ the words be obscure or wheÌ„ some thing is omitted least the graunt couenaunt or deuise do faile we haue alwaies recourse to that which is more probable and wee imagine that more was spoken then written and more intended then vttered And it is not conuenient that in the affaires of men the interpretation which dependeth vpon probable coniecture should be excluded A thing may be probable many wayes first by the common vse of speech secondly by comparing the consequent with the antecedent thirdly by the circumstances of a mans actions fourthly by the concordance or agreement with the lawe because euery one is intended to coÌ„forme his wil according to lawe vnlesse the contrary be proued but it may be sayde that where the words of the law do faile the law it selfe doth faile And words were inuented that they might shew the meaning of the parties therefore we must not regard that which is probable but that which the words do sound To this I answere that there ought to be no departing from the words and from the true propertie vnlesse there bee apparant proofe of an other meaning but where an other meaning doth appeare there the toung yeeldeth to the heart and the words do giue place to the meaning The words onely in such case are not to be regarded but wee must consider what was meant by the person quantitie qualitie place time precedents consequents and other circumstances And where it is sayd that if the words faile the lawe doth faile it is true vnlesse there bee some secret intent of the lawe to the contrarye the ground whereof is probabilitie And though a mans sense and meaning be declared by his words yet because there bee more thinges which wee thinke then which wee speake or write the speech of a man is not alwayes the touchstone of the minde but the concurrence of circumstances and though a mans words ought to be taken most strongly against him yet they are wel to be sifted examined least the interpretation bee too burdenous in some case and so vniust against the partie A mans speech doth consist of words and meaning euen as a man himselfe doth consâ—st of bodie and soule or to make the matter more plaiâ—e the words are but the superficies and the intent or meaning is the substance And the lawe traceth the meaning of a man by the circumstances euen as the hunter traceth the hare by the print of his foote Yet I would not that a mans deede or act in the countrie should be made frustrate by some Iewish or misticall interpretation but such an intendment must be taken as the words being compareâ— with circumstances will yeeld For words are not by violence to be racked but by circumstance to be ruled And wee must alwayes so interpret that a mans right may be vpholden But it may be further obiected that in graunts and contracts and in other priuate affaires Casus omissus habetur pro omisso and the inteâ—â—ion or meaning of a man which is not apparant and manifest is as a child vnborne which is of no account till he be brought to light For a mans speech is an externall act which is ordained for the declaration of his inwarde meaning and therefore words are sayd to be the limits of our meaning To answere directly these words Casus omissus c. are to be vnderstood onely in such cases where a thing is omitted both in respect of the not expressing of it and in respect of the not implying it But where the lawe will vphold the meaning of the partie there is no neede of words and though words were inuented that they might expresse our thoughts yet by them onely our meaning is not signified But there be other signes namely the circumstances before the acte in the acte and after the acte Thus it is euident that the best and most probable reason in the conflict of opposite arguments is to be sought for by the Student and how it may be found 4 The best interpreter of the law is common reason and intendement Wherefore if any one mans opinion do differ from common reason let the Student auoide it Neither are such things without cause to be altered which haue alwayes heretofore receiued a certaine interpretation Neither is the common lawe any other thing then a determinate order established and ratified by common consent Wherefore Bodinus saith not well who putteth this difference betwixt a lawe and a custome in that a custome is accepted by the plausible agreement of the multitude but a lawe springeth vp in a moment and is commaunded by the authoritie of the Rular many times against the liking of them that are bound by it For common lawe is that which is made and approued by common allowance and therefore it is lawe because it is commonly vsed for lawe Wherefore Athenaeus and Polibius do vpon good ground reason reproue the lawes of Plato because no nation of Greece could be perswaded to vse them but as Plato faigned lawes so he might likewise faigne men to vse them therefore Horace sayd rightly Quid leges sine moribus vanae proficiunt Lawes without vse are vaine and profit not But here it is good for the Student to be assured of what nature qualitie the thing is which I call common reason or intendement for that may seeme to offer doubt whether we ought to ascribe common reason and opinion to the number of authors or to the worthines of them or to the perswasion of reason which doth concludenter demonstrare to the sense vnderstaÌ„ding of the most part of men of indifferent capacitie I would haue coÌ„mon opinioÌ„ takeÌ„ according to this last braÌ„ch 5 The things which be odious in lawe must be restrained the things which be fauorable must be enlarged Priuat customes are odious in the eie of lawe whatsoeuer swarueth froÌ„ common right for the coÌ„mon law was framed in fauour of publike tranquilitie therefore the departure froÌ„ it must needs be accounted odious The lawe is more proane to acquite then to condemne and because it is better with the restraint of an odious constitution to absolue one that is giltie then with the enlarging amplifying of it to condemne one that is innocent therefore there is nothing that requireth more diligence
principall reason inseperable truth of euery thing which the vnderstanding straineth out of the secret and hidden causes of thinges for as in hearbes if we touch them outwardly we do not finde nor feele any moisture in them but rather take them to be vrie vntill by pressing or distilling of them we wring out a iuyce proper to their nature So the Law doth conceiue and conclude many things of ordinarie contingents which common sense can not perceiue but rather imagineth them to be clean contrary to the truth whereas they may to a good vnderstaÌ„ding easily appeare to be true by the certaintie necessary coordination of their causes and reasons That this may be made euident I mean to annexe some particulars for the explaning therof 1 It is cleere by Law that a terme and a freehold of the selfe same thing may be both in one man at one time yet if this be deliuered to a superficiall vnderstanding it will seeme a paradoxe Tenant for terme of yeres maketh his executors dyeth the executors purchaseth the reuersion in this case both the terme fee-simple are in the executor to seueral purposes for the terme shal be assets to the vse of the testator the fee simple free inheritance for the vse of the executor his heires And if a man be seised of land of an estate for life the remainder to his executors for yeres he may deuise this term or assigne it And if lessee for yeres grant his terme to the wife of him in the reuersion to a stranger the inheritance of the husband can not extinguish the moitie of the terme because he hath the inheritance in his owne right the terme in right of his wife A man seised of land in right of his wife is attainted of felony the king seiseth the land pro vita viri the king hath but a chattel the wife the freehold for if a stranger enter the husband dye the wife shall haue an Assise 2 Likewise it will seeme strange though in Law reason it be true that a man should be remitted to his land to some intent yet not to an other As if a recouerie be had vpon a false title against tenant in taile the tenant in taile dyeth the issue entreth he is in of his first right against all but onely the recoueror So if tenant in taile discontinue his sonne heir apparant disseiseth the discontinuee to the vse of the father the tenaÌ„t in taile dieth the sonne by M. Chookes opinion is in his remitter against all but onely the discontinuee the issue in taile which hath good cause of a Formedon in the discender is of couin that A. should disseise the discontinuee against whom he recouereth he shall not be remitted in respect of him but shal be accompted a disseisor but against all others it seemeth that he is remitted Tenant in taile maketh a feoffement to the vse of his wife and his sonne being heire apparant to the intaile and dyeth the issue is remitted against all persons but onely the woman A title may be executed to some intent and yet not executed to an other And therefore if there be tenant for terme of life the remainder in fee to a stranger against whom a recouerie is had pro loco tempore in a Warrantia chartae brought by a stranger of other land he in the remainder dyeth the recouerer is impleaded and voucheth the heire of him in the remainder and recouereth tenant for life dyeth execution shall be â—ued against the heire of the land whereof his auncestor had a remainder because there was a remainder executed in the father to this intent at the time of the Warrantia chartae brought but to all other intents it was executory for it was not executed that the wife might be endowed nor for him in the remainder to bring a writ of right But the remainder in such cases is to some intents executed for if he in the remainder had aliened his remainder in Mortmaine the lord might haue entred and vpon such a remainder the lord may haue a Cessauit but the heire shall not haue an Assise of Mortdauncester 4 A thing may be extinct or in suspence in one respect and in Esse in an other respect the father being tenant in taile alieneth the land with warrantie and hath a rent charge in fee issuing out of the land of his sonne and heire apparant which rent discendeth to the sonne this rent is a good assets for the value in respect of the discontinuee and yet it is extinct in respect of the issue A man seised of a rent seruice is bound in statute staple and after purchaseth the land out of which the rent is issuing after execution the rent is extinct as to the conusor but in Esse as to the conusee A corrodie is graunted to I. S. for life who graunteth it backe to the grauntor for terme of yeares rendring rent the corrodie is in Esse as to the payment of the rent but in suspence as to the taking of the corrodie And it was lately ruled in one Caires case in the Court of wardes that if a man held land of the Queene by a certaine rent and the Queene graunteth the rent to a stranger who graunteth it to the tenant the rent is extinct as to the payment but in Esse as to the tenure The King seised of a forrest graunted the office of the forrester to one rendring rent and he graunteth the forrest to an other the forrester forfayteth his office yet the grauntor shall haue the rent So that it must needes be that the office to the intendment of law is to that intent in Esse And if a man graunt to an other a rent out of his land in fee vpon condition that if the grauntee or any of his heires dye their heire being wythin age the rent shall cease during the minoritie if the grauntee dye hys heire wythin age his wyfe shall haue dower but cessabit executio during the nonage But in this case it seemeth that if the heyre dye during his nonage the wyfe of the heire shall not haue dower of the rent because it was neuer leuiable by the sonne as it was by the father A man seysed of two acres of lande hath issue two daughters and dyeth now the rent is in suspence as to one moitie and in Esse as to an other moitie 5 The intendement of the Law is as stronge in a matter of law as the trueth it selfe in a matter in facto And therfore if A. be disseised and hys brother maketh a release with warrantie to the disseisee and afterward entreth into religion this warrantie shall be a barre to A. although that hee be lyuing for A. may haue his land by discent and therefore it seemeth to be reason that the warrantie should discende
vpon him as his heyre Note here of what validitie the intendement of Law is touching a ciuill death The Wardein of the Fleete who hath the office in fee dyeth seised and the office discendeth to his sonne and heire being then in prison the Law doth presently discharge him of imprisonment because he is to be at large the better to looke to others that be in pryson A man maketh a lease to one for terme of life rendring the first seauen yeares a rose and if he will hold the land any longer then seauen yeares that then he shall pay foure Markes yerely liuerie is made the lessee surrendreth at the ende of the first seauen yeares his estate was adiudged to be but a terme ab initio and no freehold and the writ of couenant brought against him for not repayring was qui tenuit ad terminum annorum If a man make a lease of land excepting the trees which grow vpon the land the trees are seuered in law for he hath no reuersion of them and if he sell them and after the sale make a feoffement the feoffee shall not haue them because they were seuered by the vendition or sale of them for by the exception they were seuered from the terme but not from the inheritance but by the vendition they were seuered from the inheritance If the Baylife of the land doe demaunde a rent seruice and the tenant denyeth it and the Baylife sayth that hee will distraine for it and the tenant sayth that hee shall not distrayne wherefore the Baylife dare not proceede further to take a distresse for doubt of death thys is a disseystn of the rent in the eye of the Lawe And if a rent seruice be warranted to one and the land doth escheat the Law as M. Finchden thinketh transferreth the warrantie to the land 6. One thing in the vnderstanding of Law may be of seuerall natures in seueral respects and so one writ may be two seuerall writs to two seuerall intents In an action of debt the declaration was of x. li. vpon a sale and v. li. which he had deliuered to the defendaut to redeliuer and it was held good because the action was in the debet and detinet and the warrantie of atturney and the essoine in this case shall be in placito debiti Quaere If a man lease land to one for terme of yeares rendring rent and the lessor graunteth his rent to a stranger and the lessee surrendreth this doth not extinguish the rent for now it is a rent seck which doth not depend vpon the reuersion And so one man to the vnderstanding of Law may haue seuerall capacities or respects For if a man disseise a feme sole being an inheritrix of certaine land and after he taketh her to wife and they haue issue and the husband is disseised and the disseisor leuieth a fine wyth proclamations the husband dyeth fower yeres after the proclamations and before the fifth yere be passed the issue being of full age and after the wife dyeth and the fifth yere passeth now the issue is bound as heire to his father yet he may haue other fiue yeres as heire to his mother to be accompted from the death of his Father So if I. S. be tenant of land for terme of an other mans life the remainder to an other for life the remainder to the said I. S. for terme of his life or in fee and he is disseised and the disseisor leuieth a fine with Proclamations and the fiue yeares incurre now is I. S. bound for the present estate but if he in the mesne remainder for life die hee shall haue other fiue yeres for the other estate So if a man haue an estate in land for the life of A. the reuersion to himselfe for the life of B. the remainder to himselfe for the life of C. and is disseised and the disseisour leuieth a fine with Proclamations he shal haue fiue yeares seuerally after euerie seuerall estate determined I. S. giueth land to A. his daughter in taile and hath issue B. another daughter and dieth A. dieth hauing issue C. a Precipe is brought against C. who voucheth to warrantie her selfe and B. as heires to the donour of the reuersion to haue the warrantie paramount in this case is C. both the vouchor and the vouchee A terme is deuised to one who is made executor he entreth this is an administration and an execution of the terme vnto him and he is both deuisee and executor A. couenanteth by Indenture with B. that the sonne of A. shal marrie the daughter of B. and that therefore B. shall giue vnto A. an 100. li. if the marriage did not take effect before such a day that then A. and his heires should stand seised to the vse of B. and his heires vntill the hundred pound be payed by A. his heires or executours B. dyeth and after the marriage taketh not effect the vse and possession of the land vesteth in the heire of B. but Quaere saith Brooke whether he shall be in ward or no for he is an heire and yet he is a purchasor If I. S. be Deane of P. I may giue him land to him and his successours and to him and to his heires there hee taketh both as Deane and as a priuate man and is tenant in common with him selfe so if a rent charge be graunted in such manner he shal ioine with himselfe in an Auowry Likewise the Lawe may deny one a benefite as he is I. S. and yet allow it vnto him as he is executor to I. N. and therefore if an executour be Outlawed or Excommunicated which be disabilities in Law yet as an executour hee may maintaine an action because he sueth and is to recouer to the vse of an other person and so an executour may haue an action of trespasse in his owne name without nameing his companion in the executorshippe if goods be taken out of his possession For he is possessed of them as a priuate man but he is possessed of them to the vse of an other as executour And he need not in the case aforesaid name himselfe executour For if he do it may tend to the abatement of the writ according to M. Kebles opiniō who saith that the possession of one of the executors his meaning is as he is executor is the possession of both and herewith agreeth the opinion of Newton but by their fauors though the propertie of the executors in the goods of the testator be one and the same yet the possession may be seueral for he that hath the custody of goods may only be said to be in real and actual possession of the same which kinde of possession is onely heare meant for which cause a writ of Detinue that concerneth the possession of goods shall bee brought only against that executor who is possest of the goods 7 The Law may
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
doe I dissent from the opinion of them that thinke the lawes of Moses doe imitate and resemble the simplicitie integritie and vniformitie of the lawe of Nature The lawe of Nations is that which naturall reason hath propounded and appointed in common to all men I doe not saye that nature hath appoynted but nature with reason or naturall reason And it is also seuered from the lawe of nature because it is appropriated onely to men yet communicated to all nations for there is no nation which vseth it not The distinguishing of Demesues the diuersitie of Realmes and Kingdomes is parcell of the lawe of Nations Likewise warres contracts and such like are braunches of that lawe the definition of it may be shortly this a lawe in which all Nations doe consent But this pleaseth not Bodinus for saith he all nations haue consented to Idolatry yet who will accompt that a lawe But this definition is meant of humaine things not of diuine for who will so vnderstand it For all the Nations of the world may not prescribe a lawe to God nor capitulate any thing touching these thinges that concerne him hee is a law-maker for hymselfe and therefore hath sayde Quod praecipio tibi hoc tantum facito non addas nec minuas But in humane things that whiche all Nations doe allowe for a lawe that is for gouernment and publique respect for which intent the worde lawe is vsed in the definition that is to be receyued and acknowledged for the lawe of Nations The lawe Ciuill I doe not take so largely as some doe interpret it to bee a lawe which euery citie or people hath appropriated to it selfe for though the originall denomination of it came from this word Citie yet by that was meant onely one Citie where that lawe was practised and obserued and that was the auncient citie of Rome for which cause the Ciuil law is at this day called by some ius Romanum And though many Cities and Commonweales be now gouerned by that lawe yet therefore it can not be sayde to be ius Ciuile sith it had the name before The Common lawe is that which by common vse or common reason is made not by common assemblie as Statutes or Actes of Parliament are established And it differeth likewise from statute lawes in this that in such lawes there are many times prouisoes and exceptions of certaine persons But the Common lawe bindeth all alike and is not applyed and vsed as a plaister to one part but as a strong purgation to all the partes of the bodie politique and it may challenge a thirde difference for that the Common lawe ariseth from the people and multitude but the Statute originally from the King because before euery Parliament writs of summons issue from the King for preparation to that solemne meeting of the States Againe the King may dispense with penall Statutes by clause of non obstante but hee may not alter the course of the Common lawe though the worde of Common lawe extende by the generallitie of it to any lawe that is commonly vsed in any place yet vse hath restreigned it to the Law of this realme of England to the dominions of which it is confined beyond this neast streatcheth not her feathers The customary Law is nothing els but a custome long time continued which may bee thus more fully defined Custome is a law not written by the manners and vsage of a certain people or the greater part of them vpon good reason and iudgement begun and continued and hauing the force of a Law I said a Law not written because the bare memory of man is the register of customes I said by the manners and vsage c. because no custome doth grow without the consent of certains people or the maior part of them I said begunne vpon good reason and iudgement because such things as are introduced by error are not to be obserued I said continued because without diuturnitie of time custome can haue no force or strength I said hauing the force of Law because it must bee of equall power in the place where it is vsed with the Law Acustome against the Law of nature is of no force because naturalia sunt immutabilia A custome against the Law of nations is of no validitie because that is grounded vpon the Law of nature A custome against the Law positiue is either against publiâ—â— vâ—ilitie or priuate profit if it be derogatorie to publike vtilitie it is void if it be onely against priuate profit it is good and effectual and a custome once disallowed and defeated by Law cannot be recontinued or reuiued by any meanes It hath bin questioned how many Actes or deedes of men be required to bring in a custome and the opinion of the most learned hath bin that so many actes and so notorious that the thing which is done may be intimated into the notice of the people so that it may seeme to be allowed by the secrete consent or likeing of the people But one notorious act cannot induce a custome for that is against the name of a custoÌ„e for consuetudo is nothing els but communis assuetudo It hath bin also doubted whether an act contrarie to a custome do interrupt the custome to which it may be thus answered either the custome was not yet perfitte and then it doth interrupt the custome for the consent of the people did not yet euidently appeare or els it was complete and perfit and then it cannot be defeated by one act but by so much time and in such maner as it was induced Ius merum is that Law which hath no mixture nor regarde of circumstances but groundeth a rigorous conclusion vpon thinges done without further examination how or why they were done as if a man sell a lease of lande for yeres and certaine cloth for tenne pound the contract is entier and if the title of the vendor be not good as to the lease yet he shall haue the entire summe though the vendee be dispossessed of the lease at the time of the action brought for the money because in strict reason the contract was entire so if a man sel his owne horse and the horse of I. S. to A. for tenne pound and I. S. taketh away his horse yet an action of debt will lye for the whole summe because the contract was in it selfe entire But if a man reteigne one in seruice for a yeare for tenne pounde to bee payed at two feastes of the yeare and the Master dyeth after the first feast and before the latter the Seruaunt shall haue his wages but for the first Feaste because the contracte was at the first time apportioned The Law which is termed aequum bonum is that which doth mildely interprete amend and mollifie the hard and rigorus speaches and censures of the other Lawes and is sometime sharpe and seuere where the other Lawes are remisse and conniuent as may
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