land as heire vnto the sonne and not the father because it cannot lineally ascende 2 By the fathers prerogatiue which is threefold 1 If the foresaid vncle dye without issue the Father liuing the Father shall haue the land as heire vnto the vncle and not vnto the sonne for that he commeth to the land by collaterall discent and not by lineal ascention 2 If landes discend by the Fathers side the Fathers side shall inherite and none of the Mothers side 3 If the sonne die without issue and haue purchased lands in fee simple they of the bloud of the fathers side shall be heire vnto him before any of the mothers side 3. By the mothers prerogatiue which is twofold 1 If the sonne hauing purchased lands in fee simple haue no heires on the fathers side then shall the land discend vnto the heire on the mothers side 2 If a man take a wife inheritrix in fee simple which hath issue a sonne and then dieth and the sonne entreth into the tenements as sonne and heire to his mother and after dieth without issue the heires of the mothers side ought to inherite the tenementes and not the heires of the fathers side 4 By the brothers prerogatiue which is after two sorts 1 If there be three brethren and the middle or yonger brother purchase land and dye without issue the elder brother shall haue the land by discent for that he is more worthie of bloud 2 If there be two brethren by diuers venters and the elder is seised in fee simple and dyeth without issue and his vncle entreth as heire vnto him which also dyeth without issue the yonger sonne shall inherite the tenementes as heire to the vncle because hee is of the whole bloud to his vncle 5 By the Sisters prerogatiue If a man be seised of land in fee simple which hath issue a sonne and a daughter by one venter and a sonne by an other venter and dieth and the elder sonne entreth and dyeth without issue the daughter shall haue the land and not the yonger sonne but if the elder brother die before entrye be made then the yonger brother shall haue the land Qui a possessio fratris defeâ—do simplici facit sororem esse heredem 6 By the prerogatiue of the whole kindred If a man purchase land in fee simple and dye without issue euery one that is his next cousin collateral for default of issue may inherite 2 Of such thinges whereof a man may haue a manuall occupation possession or receite as of lands tenemeÌ„ts rents or such other a man shall say in his pleading in way of barre that one such was seised in his demesne as of fee but of such things that lye not in manual occupation as of an aduowson of a church or such maner of things there he shal say that he was seised as of fee and not in his demesne as of fee. 3 Fee simple is the largest greatest inheritance that a man can haue 4 For default of lawful heires the lord shal haue the land held in fee simple by eschete Obseruations vpon the Analysis THis definition which Maister Littleton vseth soundeth like a good Logicall definition as consisting of the true genus and the proper difference for this word inheritance is the genus which extendeth as well to fee simple as to fee taile and this word pure is a difference whereby it is distinguished from fee taile for fee simple is a pure inheritance that is without limitation or restreint but fee taile is a limitted or a restreigned inheritance This word lawfull in the definition is not idle but the meaning of it is that it is an inheritance according to the meaning of common lawe for if by lawfull should be meant rightfull then a fee simple by diseisin should be excluded which I thinke was not Maister Littletons intent And againe if this worde lawfull shoulde extend to all lawes inheritance should be heere taken according to the interpretation of other lawes also which cannot be Maister Littleton well beginneth with the definition for there are but foure things to be doubted of first whether a thing be in rerum natura secondly what it is and of what nature thirdly whether it be such and so qualified or no fourthly why it is such and so qualified and he that wel openeth these foure points shall in all learned discourses shewe hymselfe excellent and absolute The nature of fee simple may bee somewhat vnderstoode by applying it to the subiect to which it apperteineth for tenant in fee simple and tenure in fee simple beeing coniugata hee that well knoweth the one must of necessitie well vnderstand the other Maister Littleton lastly describeth estate in fee simple by certaine adiuncts or properties which do greatly serue to illustrate and explaine the things whereof wee intreate they are of two sortes externall and internall Internall are they whiche flowe from the nature of the thing it selfe of such sorte are the first and third properties mentioned in the Analysis for in that fee simple may lineally discende and not lineally ascende the nature of the tenure is the onely cause for it beeyng to a man and so hys heyres the more worthie heire is he that is of the bodie the lesse worthie he that is of the bloud and not of the bodie but the father in regard of the sonne can be neither of these but in regard and by mediation of the vncle he may be heire to the sonne because he is of the vncles bloud so that in the direct line it is euident that the fee simple cannot ascend and it is a very essential propertie to fee simple to be the largest and greatest inheritance because it is to a man and his heires without limitation Externall properties are these which do so go before a thing or so follow it or so cleaue to it that notwithstanding there is no necessitie of any of these as for example before the killing of a man commonly there is some brawling and contention of words With the acte doth concurre the sighing or groaning of him that is slaine and the flight feare lurking trembling and vnconstant answere of him that did kill him do follow the acte howbeit some be slaine without the concurrence of these circumstances There be two sortes of adiunctes some belonging to the person some to the thing it selfe to the person as the kinred countrey seâ—e age education the habit of the bodie the fortune the estate the qualities of his minde the manner of his life The adiuncts of the thing are the causes the place the time the manner of doing a thing and such like Of these some be common and some be proper common as if one should commend Achilles because he was of good birth because he was a great captaine because he was in fight against the Troians for euery of whiche Diomedes is as much to be commended as Achilles Proper adiuncts be as if thou shouldest
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
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
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
discerning of the truth of euery thing And a Student ought not only well to deliuer things conceiued but well to iudge of them and in this part standeth the best part of a Lawyer It is the propertie of a wise man most sharply to perceiue what is true what is false in euery cause and controuersie not to be deceiued nor inueigled not to be vnconstant in opinion nor ignorant in the circumstances of things The ordinarie meane to attaine to wisedome is to vse time and diligence sufficient for the consideration of things to heare reasons on both sides contending in his mind as it were armed and professed enemies not to iudge of any thing rashly or hastily nor to giue a sleight censure of weightie matters For as Fabius sayth in Lyuye Omnia non properanti clara certaque fiunt festinatio improuida ac caeca est All things are plaine and certaine to him that is not rash nor headie Haste is improuident and blinde which is therefore rightly termed of Plato Nouerca Scientiae The stepdame of knowledge And the Aetolian Magistrate sayd well That there is nothing so great an enemie to good aduise as haste which bringeth pennance swiiftly but warning too late and without profit because counsaile hastilie giuen cannot be reuoked neither can the thing which is disordered by badde aduise be entirely restored or brought into order againe But where a man taketh time sufficient hee cannot be sayde to doe any thing rashlie Wherefore not vnfitlie hath it beene defined by some to be the knowledge of the oportunitte of doing things aright and the cause that all things be well done and it hath not onely a stroake in worldly affayres but euen in matters of religion for by it a man may be so directed that hee may neither decline to superstition nor to that which is contrary vnto it namely impietie or atheisme And it is the leauill or compasse of all other vertues in the accidents and affaiers of this life It will shewe the times and measure of boldnes and audacitie least it turne to rashnes and impudencie It will so order Temperance the mother of order that it may not be accompted rudenesse or inciuilitie It will guide Iustice which gouerneth all things least it turne to crueltie nay it wil moderate it selfe least it be termed craft or deceipt By these effects the Student may easily perceiue how necessary it will be vnto him The qualities aboue mentioned do so directly respect a Student that they may be numbred in the ranke either of adiuments or ornaments One thing yet remayneth which is to be placed and raunged amongst the ornaments only being a meere ornament yet it doth as much adorne as the other doe helpe and that is curtesie or mildnes which doth as much decke and illustrate any gentleman as the dyamond doth the gold to which it is fastned or as the chaine of the necke doth giue a luster to the brauerie of the other partes it setteth in order garnisheth and graceth the other giftes of the minde without which they shoulde be vnsauorie and want applause I distinguish it from Ciuilitye called Vrbanitas and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for that is onely to be seene in publique meetings and assemblyes but this may shewe it selfe within a mans priuate walles or chamber and may be vsed betwixt man and man Most loathsome and deformed are the manners of the Stoikes who whilest in sowernes of minde they seeke to ouercome mans nature do exceede it and of men they become beasts And such manners haue disgraced men of excellent abilitie Coriolanus was by nature a Stoike and his roughnes of maners is iustly worthilie reproued of Dionys Halicarnastaus Cato was both by nature and profession whom for his bitter austeritie Erasmus condemneth And surely I thinke that such rugged behauiour doth relish harshly and is sometimes vnpleasant to them who by naturall inclination do fauour it Heare therefore a Stoike dispraysing a Stoike Cu. Piso sayth Seneca fuit a multis vitijs integer sed prauus cui placebat pro constantia rigor Cu. Piso was free from many faultes but yet a froward man and was delighted with stifnes of minde in stead of constancie Florus hath noted the currishnes of Romulus with a perpetuall blot of infamie Romulus ob asperitatem morum a Senatu discerptus est Romulus for the roughnesse of his manners was torne in peeces of the Senate But mildnesse is of that sweete and delectable nature that it pearceth the stonie harts of barbarous people it affecteth their eyes and eares it bendeth the most stubborne and insolent spirits it findeth an easie way amongst swords it ouercommeth wrath and alayeth hatred This I commend to the student as a principall meane to gaine fauour loue and good entreatie Of the choise which a student of the Law ought to make in his studie The third Chapter NOwe that we haue shewed what qualities are conuenient for him who purposeth to gaine knowledge and credite by the studie of the Law it remaineth to giue him some taste of that course which in pursuing his studie hee may not vnprofitably obserue For though the way were plaine yet to them that know it not it is harde and difficulte And as the first yoake is to the young Steere heauie not because hee is not able to beare it but because he is vnacquainted with the carying of it so yong Students though they be in age and capacitie mature and perfit yet because they aduenture vpon a new enterprise whereof they neuer had triall they are somewhat troubled at the first yet in continuance of time by labour and some direction of Veteranes in the Art they pearce through the thornie fence or barre of these great difficulties but heere let the Student take courage vnto him and when the doore is opened let him not doubt to enter As hee must not neglect time which is a consuming treasure so hee must make distinct choice of it least omitting better opportunities he doe cast him selfe into the straites of time and necessities whereby he shall finde much incombrance and his proceedinges shall be crossed by many interruptions And surely as in all matters of moment the place where a thing ought to be done is greatly to be regarded so likewise the time wherein it is to be done For the turning of all temporall affaires doth depende vpon these two hynges and these circumstances doe either make or marre the substance of our actions It hath bin questioned of diuerse whether the morning or the night be more conuenient time for the studie of the Lawe which because it is no moderne doubt but either part hath had fauorers and patrons in all ages and to the end that by some clerenes of reason the truth of this matter may appeare I will bestowe some paines in the opening of this point Marsilius Ficinus a man of excellent learning and iudgment doth by fiue
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
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
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
is able to performe in the faculty which he professeth and hee which knoweth to himselfe is not knowne of other men Wherefore I suppose it a thing of exceeding moment for the Student to demeane himselfe well in his conference and exercise least the multitude of howers which he hath spent do slip from him without vse as the sand falleth out of the howre-glasse when no man seeth or mindeth it 1 The student of the lawe ought to haue great regard of his speech and that he deliuer his opinion or argument in conuenient and orderly sort not after a rude confused and impolite manner and hee who is not onely wise but eloquent is without comparison the best in all professions which consist in practise and in the forme of speech Therefore parents and tutors in the Uniuersity should haue principall regard that he who is to addresse himselfe to the study of the lawe may be fitt with a plausible grace to discourse and dispute and euen in the prime of our yeares this care must be had For by nature we hold that fast which in our tender yeares we conceiue and the worse sort of things do stedfastly abide in vs the better is soone turned to worse but in this matter it is good to follow the precepts of such as be neyther too curious nor too ignorant for there is nothing more like a may-game then these vaineglorious persons who haue decked themselues with a false perswasion of knowledge To the Student of the lawe I doe therefore thinke this course necessary because he must liue in great celebritie in the assembly of the people and in the middest of the common weale Let him therefore enure himselfe from his youth to frequent assemblyes let him not be afrayde of men nor appalled or tymerous through a shadowed kinde of life least when hee shoulde make vse of hys studye hys eyes dasâ—e at mid-day and all thinges bee newe vnto hym who seeketh that in hymselfe which is to bee done and performed in a multitude Yet I woulde not haue hym too curious and deynty in hys speeche for wee must vse wordes as wee vse coyne those which be common and currant And it is a great errour for a man to estrange himselfe from the common vse of speach and to exceeding precisenesse in wordes and stile doth quench the heate of our inuention and brideleth the course of our wittes Yet it is commendable to haue in our discourses both good wordes and good matter For Cicero dyd not fight with armour of proofe onely but wyth bright-shining harnesse when hee did not onely gayne the admiration of the Romanes but theyr acclamation also and applause But let good wordes conteyne in them good matter that the Argument or discourse may not shyne as it were by oyle and oyntment but by bloud and complexion It is a feauer-like payne to endure a mans speech loadned with superfluous wordes In all thynges decorum must be obserued least that which wee saye doe turne to laughter or loathing and purchase the name of folly a meane must bee kept least our speach bee drye and faynt or else too copious and full of circumstaunces yet it is better for the inuention to bee abundaunt and copious then to bee leane and poore Wordes if they bee not vested with the substaunce of thynges are of no force Rhetoricke which is the Artificer of perswasion if it bee seuered from circumstaunces and raunge without learning by a facile kinde of sway It is called Atechina If it bee applyed to the destruction of good men it is tearmed Cacotechina but if it bee bestowed in vayne and superfluous matters it may bee tearmed Mataeotechina a friuolous labour and a tryflyng arte There is nothing whiche more beawtifieth a mans speeche then an apte diuision or partition of the thynges which bee handled whiche doth ease the mynde of the hearer prepareth the mynde of the vnderstander and refresheth the memorye and as Iustinian sayeth the obscurytie which doth ryse of a confused text is by separation and diuision dispersed and remoued And as the diuision of fields doth make the tillage more plentifull and sightly so doth partition in the handling of causes adorne and garnish them These things may be aptly deuided which haue a seperate reason and are sorted to diuers endes 2 Students shall not do amisse if at certaine times they meete amongst themselues and do propose such things as they haue read or â—eard by that meane to be assured of the opinion of others in such matters By this course it may be brought to passe that euery one may both better vnderstand and more firmely reteine in memory the thinges which hee hath read or heard and these things which be to good purpose vttered of others hee may enioy as his owne For priuate conference there is no time amisse Adrianus the Emperour as Dio reporteth did handle and discusse pointes of lawe at dynner tyme. M. Catâ— euen in the Court whiles the Senate was assembling did busie himselfe in reading and surely he that hath a minde to learne may learne at euery place and at euery tyme. 3 Gentlemen students of the Law ought by domestical Moots to exercise and conforme themselues to greater waightier attempts for it is a point of warlike policy as appeareth by Vegetius to traine young Souldiours by sleight and smal skirmishes for more valerous and haughtie proceedinges for such a shadowed kind of contention doth open the way and giue courage vnto them to argue matters in publique place and Courts of Recorde and it will not be amisse sometimes to reason together before men of more reading and greater iudgement which may friendly admonish them and if they erre reduce them into the right way It is good to bring such matters into question as be disputable may deserue argument for it were a vaine thing to make a doubt of that which is plaine and manifest as whether a rent or annuiâ—ie ought to be paid to a dead man or whether a man may commit an offence against the Law without punishment and such like wherein if a man should aâ—ke any mans opinion hee might perhaps receiue such aunswere as Labio did of Iubentius Celsus Aut non intelligâ— quid sit de quo me consulis aut valde stulta est consultatio tua It is euident that one Law may with good probability heare seuerall interpretations but that sence is most to be imbraced which doth take away the occasion of doubting the way to remoue doubt is to examine well the reasons of the contrary part wherefore Baldus saith well Ferro aperire viam qui per contraria transit And to loose doubts is to find out the truth as Aristotle saith but often conference and priuate debating of points of Law is the fountaine and originall of exceeding profit for by it the wit the memory and the tongue are greatly furthered and holpen and a man is made more ready bold for