called by that name imitated the ancient Druides of this Land but yet gone farther than they who following the Pythagoreans did not commit their Learning to Writing or rather the Lacedemonians who by the institution of Licurgus held all Law not written who as Plutarch reporteth exiguos illos pecuniarios contractus quique propter usum vitae subinde immutantur praestare censebat scriptis legibus non comprehendi neque immobilibus consuetudinibus illigari sed permittendum ut pro ratione temporis augerentur diminuerentúrve secundum probe institutorum hominum arbitrium yet our Law doth not give so much libertie to the Judges But yet not onely Politicians and Moralists but also the Civil lawyers do permit that in a Common-wealth the constitutions of Princes are to be interpreted according to the Judgment of Magistrates and Judges sometimes mitigated and according to incident diversities interpreted which cannot be alwaies committed to writing for it cannot be alwaies the same and this were rather to be wished than to be hoped for in our Laws and I would that he which finds this fault could finde a remedie and prescribe the reformation Controversies and ambiguities are so frequent not onely in this but in all sciences arts and professions that every day new particulars New particulars breed new questions are subjects of new questions especially in the Laws which spring out of the intricate forms of new Conveyances and such like invention of men And so long as man seeth but in aenigmate and per speculum as the Divines say of the Knowledg How uncertain man's knowledg is in Divine things and in other sciences of God and so long as by the rules of the perspectives that which is seen by reflection or refraction is never seen in or according to his true place so long and in such sort we must look for controversies and ambiguities in all professions which are indeed not so much or so sensibly felt in any art as in the Law because none other goeth so near mens Nothing goeth so near to mens thoughts as their loss of estate inward thoughts and conceipts as such doe whereon their estates and possessions are adventured therefore losers may have leave to speak but not untruth CHAP. V. Of the Books written of the Laws of England whereby the Knowledge thereof is chiefly obtained THE chief Knowledg by study Three sorts of writers of our Law of our Law doth consist in the Works of them which have written of the Law and they are of 3 sorts 1. The first whereof setteth down the Art and Rules of the same in a certain method such as is Glanvill Bracton and Britton who are ancient Authors wrote in Latine and did indeavour to reduce those Rules according to the titles of the Civil-lawes but most especially Bracton though these are ancient Authors yet they are now cited rather for ornament than for authoritie 2. Others have written of the Writers of the Nature and Precedents of Writs Precedents Rules and Natures of Writs which do lay the ground of every Action to procure judgment and execution thereon as the books of Entries with the Register and the two books grounded thereupon In this Fitz-herbert hath deserved specially well 3. A third sort of Writers of our Reporters of former Judged Cases Law there are which be those who write the particular and summary Cases that have received Determination and Sentence in the King 's jucicial Courts shewing how the Rules of Law were applied to those Cases or rather how these Cases were reduced to the Rules of Law both by the Counsellors that argued the same on both sides with probable Reasons confirming their opinions with authorities of former Judgments and also the Judges concluding their Sentences upon the same by the common square of Reason and Rules they have learned of the foregoing learned Judges Of this It is not known who compiled the first Annales and ancient Year-books latter sort of Writers called Reporters who they were that compiled the first and most antient Books of Reports is not certain for we have not their Names but since the time of King Edward the third there are some Works and Reports written of every King's Raign for before his time we have not any Volume at large now left and if any such were they are consumed through the injury Divers antient Year-books wanting of times or neglect or malice of such in whose custody they remained yet it should seem that in the raign of King Henry the 8. there were some more ancient Books or Reports of the Law Cases extant reported in the times of King Henry the 3. and Edward the first and Edw. the second for that Fitz-herbert Some Cases abridged of the Books now not extant who did reduce all the Cases of the Reports that were extant in his time under certain general Heads and Brook likewise who a little after him did set forth another Abridgement of the Law and Cases extant in his time adding more general Heads than Fitz-herbert had done yet both of them under divers of their titles abridge the pith of sundry Cases argued and most of them adjudged in those Kings raigns Howbeit the Volumes at large are not †We have now E. 2. and R. 2. What Year-books are yet extant now extant But of the Cases which were adjudged in the time of King Edw. the third there are four Volumes now extant Of King Richard the second his time there are not any Volumes but many Cases abridged as aforesaid Of the times of King Henry Long quinto the fourth and King Henry the fifth there is no Volume Of King Henry the sixt there are two great Volumes Of King Edw. the fourth one Volume One Volume of King Henry the seventh in the later end of whose raign the Reports do discontinue until the twelfth year of King Henry the eight And then they were recontinued untill the nineteenth of Henry the eight from thence again discontinued till the twenty sixt of Henry the eight at which time they were held on for two years that is twenty sixt and twenty seventh of Henry the eight which are the last Reports which we have save such as since have been revived by three or four worthy men whose private and voluntary diligence have for the publick good continued sundry Reports such as Mr. Kellaway who reported privately certain Cases in King Henry the seventh his time This Book and labour is now come to light by Mr. Justice Crooke his Care and Charge Also Mr. Brooke who did report diverse memorable Cases which happened when he was making of his Abridgment in the time of King Henry the eighth King Edward the sixth and Queene Mary reported them under apt titles in his Abridgement Then my Lord Dyer who when Of the late Reports of judged Cases he was a Student a Practicioner and a Judge observed many famous Cases which were published
common peace and society of Men lest the like occasion of wrong doing should grow general and so in the end hurtful to all So by this Secondary Law of Nations grew the division of Goods the distinction of Properties free Commerce betwixt Nations common Contracts and the like By this we see that the Secondary The secondary Law of Nations no part of the Law of Nature Law of Nations is no part of the Law of Nature and differing also from the Primary Law of Nations it self Now let us see next how the Civil Law differeth or is distinguished from these Laws of Nature and of Nations The Civil Law or the appellation The name of the Civil Law taken two wayes thereof is taken in two several significations for either it is in a strict signification accounted particularly and only for the Roman Law first set down by Papirius Papinian Vlpian and others and afterwards collected into the Institutes Pandects or Digests Novels Constitutions and the Feuda by Justinian's commandment or else in a more proper sence it is accepted for the particular Laws which every Kingdom and Commonwealth doth constitute for it self And although Caius with other learned Civilians do confess that the Laws which every City doth make for it self be properly intituled Jus Civile quasi jus proprium ipsius Civitatis yet the Romans having gotten under their subjection the greatest part of the known World gave Laws unto all Nations Conquered by them which by a kind of Excellency they termed Jus nostrum or Jus Civitatis Therefore Justinian after he had caused the Digests to be compiled commanded his Judges that these Laws should be used in all Countries and that his Pretors of the East of Illyria Lybia and other parts should put them in practice Whereby it came to pass that the Roman or Imperial Laws were generally called the Civil Laws and have for the most part in most places been ever since so observed Whereas otherwise in proper sence and signification the particular Laws of each free City and State ought to be called their Civil Laws But both these that is the Roman and Imperial Civil Laws and The Civil and Municipal Laws do not wholly differ from or depend on the Laws of Nature and Nations the particular Civil or Municipal Laws of every City Commonweal or free State do not wholly differ from the Laws of Nature and of Nations nor wholly depend on them in this because the Laws of Nature and of Nations are permanent and perpetual being alwayes the same without any alteration But the other that is to say the Roman Civil Laws have been subject to many The Roman Laws subject to sundry mutations mutations alterations and abrogations So likewise all other Civil and Municipal Laws have been and are according to the variation of Times of States and of sundry circumstances For example in the Roman Laws The Laws of the Kings of Rome whilst the Roman State was under the Government of Kings they made such Laws as they thought fit for that time the present state of the City and their own purposes which were all digested into one Volume by Sextus Papirius as is recorded by Pomponius But the force of these Laws ended with their Reign and as soon as the Commonwealth was transported into a New State at the first they could not frame any certain or constant Laws for the Commons and Gentry opposing each other for The Laws of the Consuls and Commons of Rome twenty years together such Laws as were then made did rather seem to cross and contend one with the other than to concurr in any mutual harmony for the good of the Commonwealth For the Consuls made Laws according to the minds of the Senate and the Tribunes of the people according to their affections untill they agreed to send certain Legates unto Athens and other Cities of Greece famous at that time for good Laws and Government that they might be better pleased with Foreign Laws who envied and held not their own indifferent Which done they drew those Laws brought The Laws of the 12 Tables fetch'd from Greece to Rome from thence into Ten Tables to which they added two more of their own these they called the Twelve Tables being the grounds of the Roman Laws But yet two years after these Laws were brought to Rome and established there the Authority of the Decemviri upon which the force of these Laws did depend ceased and was extinguished by the lust and licentious life of Appius Claudius being one of them And although those Laws of the Twelve Tables continued afterwards as grounds of other Laws yet were they still added to and altered as the Roman State did change For when The Emperors of Rome make and change Laws at their pleasure the Emperors set up their Soveraign and supreme Authority they made such Laws Edicts and Constitutions as were answerable to their own ends the succeeding Emperor often disannulling what his predecessor had ordained And as they abrogated the Laws of others so did they not long uphold their own For who almost was there amongst them that did not change their own Constitutions Besides as the state of the Empire The admixture of divers Laws in the City of Rome grew greater they were forced to alter their Laws with admixture of their Decrees of the Senate Statutes of the Commons Ordinances of the Magistrates As the Pretorian Laws called Jus honorarium which were of great force for the time but of no long continuance for they were founded upon the Authority of the Pretors and did often end with their years Thus the Roman Laws remained in much uncertainty till the Reign of Adrian the Emperor who with consent of the Senate did cause these Laws to be made perpetual whence grew the name of Edictum Adrian's Edictum perpetuum infringed perpetuum But yet in divers succeeding Ages sundry of these Laws were also abrogated and even the Laws compiled in the Pandects and Codes by Justinian's commandment were some of them by him altered and many taken away in a latter Book called the Authenticks All which is alledged to shew the instability change and uncertainty of the Roman Laws The like might be said of the Laws of other Nations which have been found uncertain in their grounds and unstable in their continuance Secondly We may see that there is difference betwixt the Civil Roman Laws and the Municipal Laws of other States For though the Roman Imperial called the Civil Laws do bear much sway in most Countries of Christendom and have place in All Countries have some particular Laws and Ordinances different from the Civil Roman Laws their proceedings of Justice but least of any place within this Kingdom of England yet have all Countries their several Customs Statutes and particular Ordinances discrepant in divers points from the Rules of the Roman Imperial Civil Laws which is no marvel since in the Digests there
with ours But where by our Law we do not admit that Beast for the Plough shall be taken upon Elegit facias which is constituted by the Statute of Westminster the second although that be referred by Polydore to Mulmusius Law therein the Law of this Kingdom agreeth with the Civil Law as it appeareth in the Code so that we shew in the Execution of judgments there are some differences even in the Civil Law it self according to the alteration of times at the first far more severe but in the end much more mild And also by these forementioned examples there are differences betwixt the Civil Law and our Laws of England in the Execution The Civil Law differed from it self in different times for Execution on mens persons of their judgments Many more differences might be found both in this and in the other forenamed points betwixt both the Laws if time did serve or were required to search and set down the same But this may suffice as a tast for this time and purpose CHAP. IV. An answer to certain Objections usually made against the Laws of England BY way of imputation or indeed of Scandal there are usually amongst others these Objections made against our Laws of England 1. That they are written in a Barbarous speech even to Scholars unknown or not understood 2. That they are framed without Method or order 3. That they have no Maximes or fundamental grounds whereon they consist or at the least not such as are certain 4. That the Judges opinion which may be extended according to humane affection doth make or alter the Law so that it consisteth not say they in scrinio principis that is in the Records of the State but in scrinio pectoris of the Judge the key whereof the Judge may alter and by a new lock fastened on make a way to come at unheard of reason according to his own conceipts which must be admitted for Law at the least for the time For the first Objection I conceive it to flow rather from some suddain mislike before the matter be understood or else some quaint and dainty palate who distasts all things be the matter never so sound and substantial which doth not savour of perfumed eloquence and polished phrases of Rhetorick than upon due consideration of the language it self for although it must be confessed that the speech and phrase wherein our Law is written is rude and unpolished in respect that no Nation speaks it as it is now written and that the same Nation from whence it is derived cannot understand it precisely without instruction yet that it is simply Barbarous or that thereby the Law receiveth any disgrace may well be denied For first admitting there were no other aide in the defence hereof than that which the Lord chief Justice Cooke hath in his preface to his third Book of Reports Siquidem relationum istarum phrasis aut stylus tibi minus arrideat ut rei ipsius subjectae praestantia atque utilitas delectet satisfaciat Vnde fiat ut totum te admirabili plane dulcedini cogitationis atque scientiae dedas addices Admitting that this were the effect of the defence surely we alone should not be driven to this shift to praise only the matter and to reject or omit complements of form for let the opponents herein but view other faculties which they that profess those faculties would have to excel either of the Laws multis parasangis observe Other Arts written in as ill stile and phrase as is our Law but the excellent part of the mixt Mathematiques as judicial Astrologie it will not be denied but some nay most of their antientest Authors especially which wrote in Latine do by their Barbarism in the Roman tongue equal the worst seeming Soloecismes in our Common Laws witness hereof Haly Ben Rodan his Comment upon the quadripartite of Ptolomy in Latine to whom may be added Guido Bonatus most especially with Alchabitius and Johannes de Saxonia his paraphrase upon him it may be truly said that a pleading in Westminster-hall for Latine or a Case argued in a private Inn of Court moote for French shall respectively in many phrases and good words exceed most of these authours nay in this Art the best tongued authour namely Julius Firmious is accounted the The best Author in some Arts writeth the worst phrase and stile worst Artist How many Latine phrases or words are there to be found in the side of a leaf in any of the chiefest and antientest School Divines who respected not the language but the points of learning which they handled Neither in this or almost in any other study doth the language add to the Art seeing that as the ancient Hieroglyphical notes to express words and syllables were added only as instruments of memory and tradition and in other Arts the voces secundae intentionis as the Logicians call them Terms of Art do not give grace but help to learn the Art being the Terms of Art give no grace to the study or language but only help to learn the Art whereof they are written therefore the language is but an instrument to the science which it contains and is as it were the Table wherein is pictured the sence of the Law So the Civilians say tabula picturae cedit and yet most modern languages nay in a manner all have bene forced to borrow from Most languages forced to borrow words of others other words and names especially of Art and invention neither can the lofty stiled Greek or the more penurious yet pleasant Latine name all things in their own language according to their proper Nature except they participate of the Hebrew which doth name things according to their Nature but that cannot be done by any other language so fully Besides all this it may be shewed that the speech wherein the Law is written is not to be so much disliked in suo genere for it appeareth by the Histories of ancient time that when the Normans came hither the The Conqueror commanded the pleading and Statutes to be done in French pleading of Law Statutes and such like things were commanded to be all in French so saith the Abbot of Croyland Normani enim ipsum idioma tantum abhorrebant quod leges terrae statutaque Anglicorum Regum lingua Gallica tractarentur pueris etiam in scholis principia literarum grammaticarum Gallicè non Anglicè traderentur Whereupon as it appears our Statutes which are extant especially those of Edward the first his time though not all Edward the second Edward the third and so forward were the reports in the Nature of responsa prudentum among the Romans taken and published in French which then was not accounted Barbarous for in likelyhood it was the same language which at the first was spoken amongst the Normans and so were all Pleas at the Barr pleaded in French until the 36. of Edward the 3. which although it
were not so good French as Dubertus his days and weeks yet it came then in a manner near to Frossard his Our Laws written at the first in French came then near the speech at that time used French in his History which was made about that time as Apuleius his Latine being no Roman did unto the phrases of Livy Cicero and such like Some corruption there must needs be in tract of time of a tongue spoken in another Country and consonant with another different language as the French was here It is evident that the antient Books as Britton Hengham and the year Books of the first succeeding ages are in better French than our later Books are because our common Lawyers now do imitate the antients in such words as they have there learned and if they want a fit word in French then do they as Sr. Thomas Moore saith of Lalus Gallicis si quid nequit vocabulis Conat id verbis licet non Gallicis Canore saltem personare Gallico c. So that indeed the tongue wherein Our Law French of later times much mingled the Law is published of late hath been much mingled with French Latine and some English that a man might compare it to that supposition of Horace Humano capiti cervicem pictor equinam c. And our late Law French doth corrupt the antient Law French as that in those primitive times was corrupted some what by the English so that the most of our Law being in the ancient French for so are the year Books until Henry the 7th his time inclusively deserveth no more to be ill thought on for the language although not spoken in our or in any Country than Plautus his Comedies because they agree not with Latine Authors in their Latine or Chaucers writings because in words stile they differ so much from Sr. Philip Sidneys selected and exquisite phrase Should any man think the worse of the study of antiquity because that most things wherewith they have dealt withal being The study of antiquity not to be misliked for the ill Latine Histories of the middle and later age on this side Christs nativity are written for the most part in very mean Latine Neither is it any good objection to say that our tongue wherein the Law is written is no tongue because it is not spoken for about Charlemain his time as appears in Lipsius his epistles the right French did more differ from and seem more Barbarous in respect of the smothtongued now used in France than our Law French about Edward the first The ancient French more rude than that now used his time did differ from the Natural French then in use so as it was a tongue then much spoken but now much varied and altered Where it is objected that it is a tongue unknown certainly It is by students of the Law as easily and far more easily learned than any other language can be for within less than a seven-nights study it will be indifferently understood And that it should not be commonly understood of all men Our Law French easily understood Fit that the language wherein our Law is written should not be commonly understood there is great reason and no profit but peril in the contrary for if all men whereof the greatest number are of unquiet spirits should at the first fight understand the language wherein our Laws are written that would breed but small rest to them that would most desire peace Therefore I cannot see what impeachment of credit it is to our Laws that they are written in such a language if of themselves they are not to be discommended which in the other points will somewhat appear For the second objection that our 2. The second objection that our Laws do want Method Laws want Method and order For Method which indeed in all learning is to be wished for and yet is not found or framed in our Laws but that is no great disgrace to the Laws for hardly shall we find any faculty that is without any defect as Sr. Francis Bacon in his second Book of the advancement of learning hath well noted whereas also there is not an harder point in Logick and Rhetorick than the right distinguishing of the true Methodical parts in any faculty as appears by the multitude of writers in each faculty Indeed the Long before the Civil Law was brought into Method Civil Law was easier for Students after such time as Justinian had digested the 2000 Books and 300000 verses wherein it was scatered and confused the like whereof might be wished in our Laws but upon what grounds hoped for I cannot yet The difficulty of digesting our Laws into a Method discerne for no small impediment therein would be seeing our Laws are grounded so much upon reason which alters and reforms other precedent errors Hardly could there be a Methodical digest drawn of all the year Books I mean for authority and not only for Study which might be sure to stand always firm for Law without it were first so determined by Parliament the confirmation whereof I conceive would come ad Calendas Graecas But for Study the time may come A private Method for study more easy and profitable that by the example of Littleton for Tenures and Common Law conveiances and Estates Stanford for the Crown pleas Theloal for Writs Gregory for Warranty and few more heads Kitchin for Courts together with Crompton and Lambard so by their example some great Lawyers may settle themselves to imitation this perchance may be remedied by some skilful Scholastical Lawyer but whether the remedy would not be worse than the disease and whether it will not make any truants of such as otherwise might prove painful Students let it be their judgments who are judicial and not theirs who are altogether ignorant in our Laws What inconvenience might follow the digesting of our Law into a precise Method for this is most to be feared which we find by experience that where abridgments are and where by compendious Method some strive to give life and luster unto the Art they profess the Students thereof coveting to come the next way to their Jornies end do like those Travellers which to avoid some long though the safer way do choose to adventure the passage over a bridge whose foundation may yet be faulty so fall short of their Journey rather than to go somewhat farther unto a ford where there is less danger and a surer though somewhat a longer passage I will not say that there is the like hazard in Methodical composition of our anuals or year Books of the Law but sure we see that many Students are already more addicted to the Study of the new than of the old year Books The peril that Students desire to read the new and to omit the old Books of our Law wherein seeking to save pains some may fortune to find in the end that to offer