might find out what the course and proceeding of Law will be I approve not for it dishonoureth the Majesty of Laws and is to be accounted a kind of prevarications oâ— double dealing and it is a fowl sight to see places of Judicature to borrow any thing from the Stage 124. Wherefore let as well the Decrees as the Answers and Counsels proceed from the Judges alone those of Suits depending these of difficult points of law in the general require not these decisions whether in causes private or publick from the Judges themselves for this were to make the Judg an Advocate but of the King or of the State From these let the order be directed unto the Judges And let the Judges thus Authorized hear the reasons on both sides both of the Advocates or of the Committees deputed by the parties to whom the matter appertaineth or of them assigned by the Judges themselves if necessity so require and weighing the Cause let them deliver the Law upon the Case and declare it let these verdicts and Counsels be recorded and notified amongst Cases adjudged and be of equal Authority 125. Next in order let your Lectures of Law and the exercise of those that address themselves to the Studies of Law be so instituted and ordered that all may tend rather to the laying asleep than the awaking of Questions and Controversies in Law For as the matter is now carried a School is set up and open amongst all to the multiplying of Alterations and Questions in Law as if their aime was only to make ostentation of wit and this is an old desease for even amongst the Ancients it was as it were a glory by Sects and Factions to cherish rather than extinguish many Questions concerning Law Provide against this inconvenience 126. Judgments become incertain either through immature and too precipitate preceedings to sentence or through Emulation of Courts or through ill and unskilful registring of Judgments or because there is a too easie and expedite way open of reversing and rescinding them wherefore it must be provided that Judgments Issue forth not without a staid deliberation had aforehand and that Courts bare a reverent respect to one another and that Decrees be drawn up faithfully and wisely and that the way to repeal Judgments be narrow rocky and strewed as it were with sharp stones 127. If a Iudgment hath been awarded upon a case in a principal Court and the like case intervene in another Court proceed not to sentence before the matter be advised upon in some solemn Assembly of Judges for if Judgments awarded must needs be repeal'd yet let them be interred with Honour 128. For Courts to be at debate and variance about Jurisdictions is a humane frailty and the more because this intemperance through a misprision and vain conceit that it is part of a stout resolute Judg to enlarge the priviledges of the Court is openly countenanced and spurred on whereas it hath need of the bridle but that out of this heat of stomack Courts should so easily reverse on both sides Judgments awarded which nothing pertain to Jurisdiction is an insufferable evil which by all means should be repress'd and punisht by Kings or Counsels of State or the form of Government for it is a president of the worst Example that Courts that should distribute peace should themselves practice Duels 129. Let there not be too easie and free passage made to the repealing of Judgments by appellations and writs of Errors or re-examination c. It is maintained by a Judg in the Common Pleas that a Suit may be brought into a higher Court as entire untried the Judgment past upon it set aside but the execution thereof may be staid in the Kings Bench is of opinion that the Judgment it may stand in force but the execution thereof may be staid neither of these is to be allowed unless the Courts wherein the Judgment was awarded were of a base and inferiour Order but rather that both the Judgment stand and the execution thereof go on so a Caveat be put in by the Defendant for damages and charges if the Judgnent should be reverst 130. Now all they which have written of Laws hitherto have handled many things goodly for discourse but remote from use that I ave written is received from the best presidents â—n the world and is what humane society is capable of what maketh for the Wea le publiek what natural Equity is what the Law of Nations And how Moses received them from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. The all enlightning recess of Souls how the law Christ commanded was love one another to do to all men as they would be don unto before his glorious Resurrection Ascention into heaven where he sitteth at the right hand of God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. And thus shall he come again to Judgment as he was seen to go up answerable to what he himself said as the Lightning commeth out of the East and shineth unto the west so shall also the coming of the Son of man be c. therfore let us serve God whose Divine Majesty I humbly implore through his Son and our Saviour that he would vouchsafe gratiously to direct and accept these and such like Sacrifices of humâ—ne understanding seasoned with Religion as with salt and incensed to his glory In Natures Law t is a plain case to die No cunning Lawyer can demur on that For cruel death and fatal destiny Serve all men with a final Latatat FINIS THE IDEA OF GOVERNMENT BEING A Defence for the Idea of the Law MADE According to the Divine President in Nature Reason and Philosophy By John Heydon Gent. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Prudens tenebrosa penetrat Proverbs 24. 21 22. My Son feare thou the Lord and the King and meddle not with those that are given to change for Calamity shall arise suddenly and who knoweth the ruine of them both London printed in the year 1660. To the Reader I Am confident he that measures my Fancy by my Effigies is more my fool than my fellow And the Hound that couches upon the Table some fondly concieve it a Devil but they are mistaken that Dog's call is Lilly he is white with a red Circle about his neck down his back is a list like a gold chain a spotted Bitch whose call is Beauty I couple to him and for all Games they are quick of scent and good Buck-hounds these when I walk by the Water side to behold the delightfull streames and Fishes playing willingly go with me and when I am in the Woods these are there also So well do I love Hounds that I would have them with me I now appear to the World as if I were bound to the Angels of the Day and Planets of the Hours God save the King and Christ be with us all You will wonder now where this drives for it is the fortune of deep writers to miscarry because of obscurity thus
False-witness thou shalt not Covet and if there be any other Commandment it is briefly comprehended in this saying namely thou shalt love thy neighbour as thy self 34. Love worketh no ill to his Neighbour therefore Love is the fulfilling of the Law 35. Rom. 13. And all other Lawes depend upon these The Politick part of all Law is this following which ought as I have prescribed to be practised according to the Basis of Moses and the Prophets and Christ and his Disciples The Method advises you how to rectifie the Errors of all Courts after this order in the Paragraphs grounded as you heard before in the Old and new Testament And these Rules you must observe 36. In all Civill Society either Law or Power prevails for there is a Power which pretends Law and some Lawes taste rather of might than right Wherefore there is a threefold Source of injustice Cunning Illaqueation under color of Law and the harshness of Law it self 37. The Force and Efficacy of private Right is this He that doth a wrong by the Fact receives Profit or Pleasure by the Example incurrs Prejudice and Peril others are not Partners with him in his Profit or Pleasure but take themselves interessed in the Example and therefore easily combine and accord together to secure themselves by Lawes lest Injuries by turns seize upon every Particular But if through the corrupt Humor of the Times and the generalty of guilt it fall out that to the greater number and the more potent Danger is rather created than avoided by such a Law Faction disanulls the Law which often comes to pass 38. Private Right is under the Protection of Publick Law For Lawes are for the People Magistrates for Lawes The Authority of Magistrates depends upon the Majesty of Kings and the forme of Policy upon Lawes Fundamental Wherefore if this Government be good sound and healthfull Lawes will be to good purpose If otherwise there will be little security in them Yet notwithstanding the end of Publique Law is not only to be a guardian to private right lest that should any way be violated or to repress Injuries but it is extended also unto Religion and Armes and Discipline and Ornaments and Wealth Finally to all things which any way conduce unto the prosperous estate of a Commonwealth 39. For the end and aim at which Lawes should level and whereto they should direct their Decrees and Sanctions is no other than this That the people may live happily This will be brought to pass if they be rightly train'd up in Piety and Religion if they be honest for moral conversation secur'd by Armes against Forraign Enemies munited by Lawes against Seditions and private wrongs Obedient to Government and Magistrates Rich and flourishing in Forces and wealth But the Instruments and Sinnes of all blessings are Lawes 40. And to this end the Lawes we receiv'd successively by Moses were first from God and then from him by Josuah and from Joshua by the 70 Elders c. But the best Lawes we received from Christ the Apostles delivered them to the Bishops c. And the end they attain you read before But many Lawes miss this mark For there is great difference and a wilde distance in the comparative value and virtue of Lawes For some Lawes are excellent some of a middle temper others altogether corrupt I will exhibite according to the measure of my Judgment some certain Lawes as it were of Lawes whereby Information may be taken what in all Lawes is well or ill received by Massora and established or by Tradition tinctur'd with the virtue or vice of the Judges and their Brethren 41. But before I descend to the Body of Lawes in particular I will briefly write the Merit and Excellency of Lawes in general A Law may be held good that is certain in the Intimation just in the Precept profitable in the Execution Agreeing with the Form of Government in the present State and begetting virtue in those that live under them 42. Certainty is so Essential to a Law as without it a Law cannot be just Si enim incertam vocem det Tuba quis se parabit ad Bellum So if the Law give an uncertain sound who shall prepare himself to obey A law must give warning before it strike And you do not read that Cain killed any after God had marked him and it is a good President That is the best Law which gives least Liberty to the Arbitrage of the Judg and that is the reason of Moses his strict charge to the people that they should not come nigh the Mountain which is that the certainty thereof effecteth 43. Incertainty of Lawes is of two sorts One where no Law is prescribed The other when a Law is difficile and Dark I must therefore first speak of Causes omitted in the Law that in these likewise there may be found some President of certainty 44. The narrow compass of man's wisdome cannot comprehend all Cases which time hath found out and therefore New Cases do often present themselves In these Cases there is applyed a threefold Remedy or Supplement either by a Proceeding upon like Cases or by the use of Examples though they be not grown up into Law or by Jurisdictions which award according to the Arbitrement of some Good Man Moses or Christ as you may read in the Old and New Testament how Controversies were decided according to sound Judgment whether in Courts Pretorian or of Equity or Courts Censorian or of Penalty 45. In new Cases your Rule of Law is to be deduced from Cases of like nature but with Caution and Judgment touching which these Rules following are to be observed Let Reason be fruitfull and Custome be barren and not breed new Cases Wherefore whatsoever is accepted against the sence and Reason of a Law or else where the Reason thereof is not apparent the same must not be drawn into Consequence 46. A singular publick Good doth necessarily introduce Cases pretermitted Wherefore when a Law doth notably and extraordinarily respect and procure the Profit and Advantage of a State Let their Interpretation be ample and extensive It is a hard case to torture Laws that they may torture men I would not therefore that Lawes penal much less capital should be extended to new Offences Yet if it be an old Crime and known to the Lawes but the Prosecution thereof falls upon a new Case not foreseen by the Lawes You must by all means depart from the Placits of Law rather than that offences pass unpunish'd 47. In those Statutes which the Common Law especially concerning Cases frequently incident and are of long continuance doth absolutely repeal I like not the Proceeding by Similitude unto New Cases For when a State hath for a long time wanted a whole Law and that in cases express'd there is no great danger if the Cases omitted expect a Remedy by a New Statute 48. Such Constitutions as were manifestly the Lawes of time and sprung up from
out both in matters Criminal which have need of penalty and in matters Civil which have need of reliefe the Courts which respect the former I call Censorian which respect the latter Praetorian 66. I advise you to let the Censorian Courts of Justice have Juridiction and Power not only of punishing new offences but also of increasing penalties assigned by the Laws for old crimes if the be cases heinous enormous so they be not Capital for a notorious guilt is as it were a new case 67. Observe also to let in like manner the Pretorian Courts of equity have power to quallify the rigor of Law that none be imprisoned but those taht are able to pay their debts their goods chattels ought not to be engaged but at the discreation of some good man let time given be for payment for the supplying the defects of Law for if a remedy ought to be extended to him whom the Law hath past by much more to him whom it hath wounded 68. Take care that these Censorian and Praetorian Courts be by all means limited within cases extraordinary not invade ordinary Juridictions least peradventure the matter extend to the supplantation rather than the supplement of Law 69. Let these Juridictions reside only in the highest Courts of Judicature and not be communicated to courts Inferiour for the power of extending or supplying or moderating Laws little differs from the power of making them 70. But let not these Courts be assigned over to one man but consist of many nor let the decrees thereof issue forth with silence but let the Judges alledg reasons of their sentence and that openly in the Audience of the Court that which is free in the power may in the fame and reputation be confined 71. Let their be no rubriques of blood neither define of Capital crims in what Court soever but from a known and certain Law for God himself first denounced death afterwards inflicted it nor is any man to be put to death but he that knew beforehand that he sinned against his own life 72. In Courts of Censure give way to a third tryal that a necessity be not imposed upon Judges of absolving or of condemning but that they may pronounce a non Liquet so in like manner let Laws Censorian not only be a penalty but an infamy that is which may not inflict a punishment but either end in admonision or else chastise the delinquet with some light touch of Ignominy and as it were a blushing shame 73. In Censorian Courts let the first aggressions and the middle Acts of great offences and wicked attempts be punish't yea although they were never perfectly accomplish't and let that be the cheifest use of those Courts seeing it appertaines to severity to punish the first approaches of wicked enterprises And to Mercy to intercept the perpetration of them by correcting middle Acts. 74. Special regard must be taken that in Pretorian Courts such cases be not countenanced which the Law hath not so much pretermitted as slighted as frevilous or as odious Judg'd unworthy redress 75. Above all it most imports the certainty of Laws that Courts of equity do not so swell and overflow their banks as under prtence of mittigating the rigour of Laws they do dissert or relaxe the strength and sinnes thereof by drawing all to Arbitrement 76. I advise you not to let Pretorian Courts have power to decree against express Statutes under any Pretence of equity for if this should be permitted a Law Interpreter would become a Law maker and all matters should depend upon Arbitrement The Recorder of London is of opinion That the Jurisdiction of defining according to equity and conscience and that other which according to strict Law should be deputed to the same Courts but Judg Rolle sayes to several by all meanes let there be a seperation of Courts for there will be no distinction of Cases where there is commixtion of Jurisdictions but you shall have Arbitrement incroach upon and at last swallow up Law 77. The Table of the Pretors amongst the Romans came in use upon good ground In these the Pretor set down and publisht aforehand by what forme of Law he would execute Judicature after the same example Judges in Pretorian Courts The Kings Bench Chancery Common Pleas c. should propound certain Rules to themselves so far as may be openly publish them for that is the best Law which gives least liberty to the Judg He the best Judge that takes least liberty to himself you see how time alters Laws since Moses recieved them from God and what Laws Christ gave you in the Gospel and now how Pollitickly they are practised by tedious Clerks proud Students covetous Councellors Self-will'd Serjeants whose Learning is great yet at last the Patient Clients are willing to go home where they lament their losses sustained through the Errors of proceedings the Crasy Judge he sits quietly willing rather to sleep then to prescribe a method of good wholsome Laws to the People And thus the poore suffer but I hope to give you a cleare way in passage onely through all Courts that with these Rules before a Judge you may know and understand your Case and the Judge also may give true and sound Judgment and supply that which is omitted by the Law fot rhe worst Tyranny is Law upon the rack And where there is made a departure from the letter of Law the Judge of an Interpreter becomes a Law-giver 78. I have found that there is likewise another kind of supplement of Cases omitted when one Law falleth upon another and withal drawes with it cases pertermitted this comes to pass in Laws or Statutes which as the usual expression look back or reflect one upon another Laws of this nature are rarely and with great caution to be alleag'd for I like not to see a two fac'd Janus in Lawes 79. Arguments brought against Testimonies accomplish thus much that the case seems strange but not that it seems true and he that goes about to elude and circumvent the words and sentence of Law by fraud and captious fallicies deserves in like manner to be himself insnar'd by a succeeding Law wherefore in case of subtil shifts and sinester devices it is very meet that Lawes should look back upon and mutually support one another that he who studies evasions and eversion of Laws present may yet stand in awe of future Laws 80. Lawes which strenghten and establish the true intentions of Records and Instruments against the defects and formes and solemnities do rightly comprehend matters past for the greatest inconvenience in a Law that refers back is that it disturbeth but these conformitory Laws respect the peace and feeling of those cases which are Transacted and determined yet you must take heed that cases already adjudg'd be not reverst or violated 81. You must be very careful that not those Laws alone be thought to respect things past which invallide cases already desided but those also
perceive in the great and marvellous hidden Misteries of the Canons which some Popes of Rome do fructifie turning also the things which are spoken elsewhere in the holy Scripture and sometimes counterfeiting them and with these their devises likening and applying them from hence sprung those Concordance as Dr. Owen calls it of the Bible and of the Canons Moreover then this so many titles of Robberies of Clokes of Indulgences of Bulls of Confessionals of Pardons of Rescripts of Testaments of Dispensations of Priviledges of Elections of Dignities of Prebâ—nds of Houses of Holy Churches of Liberties of the place of Judgement of Judgements c. Finally the whole Canon Law is of all the most Erroneous and Deficient and that same Christian Religion at the beginning whereof Christ took away Ceremonies hath now more then ever the Jews had the weight of which being put thereto the light and sweet yoke of Christ is become much more grievous then all the rest and the Christians are enforced to live rather after the order of the Canons then after the Gospel It is a great error when the whole knowledge of both Laws is occupied about nothing but transitory frail flitting and vain things worldly affairs entercourses enmities of the Canons about the murders of men robberies thefts spoils factions conspiracies wrongs Treasons and the cases of the Censorian Courts Moreover then this Perjuries of witnesses falsifications of Notaries conclusions of Advocates corruption of Judges ambitions of Counsellors Revenues of Presidents by whom widows are oppressed Pupils undone good men exiled poor men trodden under foot innocents condemned and as J. Cleveland saith The Crows unharmed scape the Doves be vexed sore And blind men have altogether prepared for themselves and incurred those things which they have thought themselves to eschew by the means of the Laws and Canons because these Laws and Canons come not from God nor be addressed to God but are derived from the corrupt nature and wit of men and are invented for gain and covetousness To follow my Idea and Method of Law which is Monarchical and Episcopal you must next in order correct another Error in the practise of the Law which is full of deceits craftily set out with a colour of perswasion which is nothing else but to know how to intreat the Judge gently with perswasion and to know how to use the Laws of their fantasie or else inventing new cases and strange Pleas to make and unmake all Laws according to their pleasure or to avoid them with all manner of subtle slights or to prolong deceitful controversie to alledge the Laws in such wise that the Praetorian Court is turned into falsehood to entangle the Authority of the Atturneys in such sort that the meaning of the Law-maker is subverted to cry out with a lowd voice to be shameless presumptuous and clamorous and obstinate in pleading and declaring and he is accounted the best Practitioner which allureth most to variance and putteth them in hope to overcome perswadeth them to go to Law and incenseth them with wicked counsels which seeketh for appeals which is a notable Barrator and Author of variance which with the babling and force of his tongue can prate of every thing and also can make one case better then another with conveyances of Judgements and by this means to make true and righteous things appear doubtful and naught and with their arms to banish destroy and overthrow Justice That nothing may defile the Idea of the Law you must correct the blots and errors of the Proctors and Notaries whose injuries damages naughtiness and falsities you patiently endure forasmuch as they seem to have gotten credit licence and power to do all things through Apostolick and Imperial authority and among them they be the chiefest which know best how to trouble the place of Judgement to cause Controversies to confound causes to forge false Wills Obligations Supplications and Writs to know also excellently to deceive beguile and when it is needful to forswear and write false to dare to do all mischiefs and suffer not themselves to be overcome by any in imagining deceipts wiles crafts malitious alterations snares entrappings subtil practices incombrances controversies circumventions Scylla's and Charibdis's Furthermore no Notary can make so sure an instrument as Mr. Michael Petty terms it but that it is necessary to go to Law afresh if any adversary will go about to disanul the same For he will say either there is something left out or that there is deceit or else he will lay some other exception or demur to impugn the credit of the Bill Bond Lease Deed or Morgage or other And these be the remedies of the Law whereunto they teach contentious persons to flee these be the watches unto which William Hill Esq saith that the Law giveth succour except there be some that had rather fight then strive For he shall have so much Law as with his power he shall be able to defend wherefore the Law saith that we cannot resist them that be stronger then us The Lawyers of all Courts of Judicature interpret diversly one from another And I have a Controversie with them as sometime my Predecessor Doctor Nicholas Culpeper had with the Colledge of Physitians he desired the health of his poor Countreymen amending the Bill of the Doctors and prescribed good Medicines for poor people and being envyed it is supposed he was poysoned Now I hope to correct the Errors of the Law by the Idea and as briefly as I can I have shewed what is good and what is evil But indeed they have brought forth with most unhappy fruitfulness so many storms of Opinions and so many Annotations of most subtle Counsels and Cautles with which naughty Practises Atturneys are instructed and maintained which do so much bind their reputation with the famous memory of those Laws through everâ— Period as my beloved Friend Mr. Windsor Chumbers terms them Paragraphs as though the verity consisteth not rather in reasons then in confused testimonies drawn out of the vile multitude of very obstinate and trifling persons among whom is so much deceipt wrangling and discord that he which disagreeth not from others as I have heard an ingenuous man and no Lawyer Mr. Heydon say He that knoweth not how to gainsay other mens words with new opinions and bring all apparent things in doubt and with doubtful Expositions to apply well invented Laws to their devises is accounted little or nothing learned c. I have heard another industrious man Mr. William Hobbs the Astrological Fencer say All the knowledge of the Law is become a naughty Counsel and a deceitful not of iniquity Now I am ashamed to see how England is Governed and what strange Laws and Statutes are established to abuse the simple honest people by Fanatique Parliamentiers These hate the King and from these come those gorbellied Committee of Safety and the Grand Oliver who hurl low Secretaries into places of honor undeserved and base people into
emergent Occasions then prevailing in the Kingdome I think now it is called so by Carolus Magnus secundus The State oft times now changed they are reverenc'd enough if they may conserve their Authority within the limits of their own proper Cases And it were monstrously preposterous any way to extend and apply them to Cases omited as in Olivers time 49. There can be no Sequel of a Sequele but the extention must be arrested within the Limits of immediate Cases otherwise you fall by degrees upon unresembling Cases and the Subtilty of wit will be of more force than the Authority of Law 50. In Lawes and Statutes of a compendious Stile extention may be made more freely But in those Lawes which are punctual in the Enumeration of Cases particular more warily For as exception strengthens the force of a Law in cases not excepted so enumeration weakens it in cases not enumerated 51. An explanatory Statute damms up the streams of a former Statute neither is the Extention received afterward in the one or the other For there is no Superextention can be made by a Judg where once an extention hath begun to be made by a Law 52. The Forme of words and Acts of Court doth not admit an Extention upon like Cases for that looseth the nature of Formality which departs from Custome to Arbitriment And the Introduction of Olivers Tyranical new Heavy Cases imbaseth the Majesty and cloggs the purity of the late Sacred King Charles his Statutes 53. Extention of Law is aptly applyed unto cases Post nate which were not existent in Nature when the Law was enacted For where the Case could not be exprest because there were not such extant a Case omitted is accepted for a Case exprest if the reason be the same So for extention of Lawes in Cases amiss let this my Direction suffice Now I shall speak of the use of Examples 53. It follows now I speak of Examples from which Right is inferr'd where Law is imperfect As for Custome which is a kinde of Law and for Presidents which by frequent Practice are grown into Custome as into a Tacite Law I will speak in due place But now I speak of Examples or Presidents which rarely and sparsedly fall out and are not yet grown up to the strength of a Law namely when and with what caution a Rule of Law is to be derived from them where Law is imperfect 54. Your Presidents must be derived from Queen Elizabeth King James King Charles and his happy Son being good and moderate and not from the bloudy Factions or dissolute Times of the Tyrant Oliver Cromwell and his Sons For Examples fetched from such times are a Bastard Issue and do rather corrupt than instruct 55. In his late Sacred Majesties time the Examples are to be reputed the best and most safe for those were but lately done and no inconveniences ensued Now Why may it not be done again Yet nevertheless recent Examples are of less Authority and if perchance it so fall out that a Reformation Modern Presidents taste more of their own times than of right Reason 56. But those Presidents betwixt Christ his Apostles and the late King Charles must be received with caution and choice For since our Saviour Christ two hundred years the revolution of an Age altered many things so as what might seeme ancient for time the same through perturbation and Inconformity to the present Age may be altogether new Wherefore leaving Moses Joshua and the Elders and the succeeding Prophets to the Lawes and Statutes of their times and following the Examples of Christ his Apostles Bishops and the Judges of a middle time are best or of such an Age as best sorts with the present times which now and than the time farther off better represents than the time close at hand 57. Keep your selves within or rather on this side the limits of an Example and by no means surpass those bounds For where there is no Rule of Law all ought to be entertain'd with Jealousie Wherefore here as in obscure cases follow that which is least doubtfull 58. Beware of Fragments and Compounds of Examples and view the example entire and every particular pâ—ssage thereof For if it be inequall and unreasonable before a perfect Comprehension of the whole Law to make a Judgment upon a part or Paragraph thereof much more should this Rule hold in Examples which unless they be very square and proper are of doubtfull use and application 59. In Examples it imports very much through what hands they have past and have been transacted For if they have gone currant with Clarks only and Ministers of Justice from the course of some Courts without any notice taken thereof by Superiour Counsellors or with the Master of Errours by the people they are to be rejected and little to be esteemed of but if they have been such precise Presidents or Counsellors of Estate Judges to Principal Courts as that it must needs be that they have been strengthened by the â—acite approbation at least of Judges they carry the more reverence with them 60. Presidents that have been publish'd however less practised which being debated and ventilitated by Discourses and disâ—ptations have yet stood out unargued are of greater Authority but such as have remained buried as it were in Closets and Archives are of less For Examples like Waters are most wholesome in the running stream 61. Examples that refer to Lawes I would not have them drawn from Writers of History but from publique Acts and more diligent Traditions The Hebrew word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Kibbel and it is an Infelicity familiar even with the best Hystorians that they pass over Lawes and Judicial Proceedings too slightly and if perhaps they have used some Diligence therein yet they vary much from the authentick Constitutions 62. An Example which a contemporary Age or a time nearest unto it hath repealed should not easily be taken up again though the like Case should afterwards ensue nor makes it so much for an Example that upon Experience they have now relinquish'd it 63. Examples are admitted into Councils but do in like manner prescribe or command Therefore I advise you to let them bee so moderated that the Authority of the time past may be bowed and plied to the practice of the time present and thus much concerning Advice and Direction from Presidents where Law is imperfect it followes next that I speak of Courts Pretorian and Ceuforian Courts of equity and of penalty as I practised of Cliffords Inn where I was sometime a Clerk 64. I advise you let there be Courts and Jurisdictions which may define according to the Arbitrement of some good man and according to sound Judgment for the Law as is observ'd before cannot provide for all cases but is fitted to such occurrences as commonly fall out and time as was said by the Ancients is a most wise thing and daily the Author and Inventor of new cases 65. New cases fall
carefully observe otherwise such a work might seem a Scholastick business and Method rather than a body of Commanding Laws 94. In this new Method of Laws upon good advertisement a Caveat hath been put in that the Ancient volumes of Law shall be utterly extinguisht and perish in oblivion but at least remain in Libraries though the common and promiscuous use thereof might be retained for in Cases of weighty consequence it will not be amiss to consult and look into the mutation and continuation of Laws past and indeed it is usually to sprinckle modern matters with Antiquity and this new body of Law must be confirmed only by such who in every State have the power of making Laws least perchance under colour of digesting Ancient Laws new Laws under hand be conveyed in 95. I could wish that this Idea of Laws might be Perused Practised and Exalted in the understanding of Learned and Wise men in such times as now when Philosophy Reason Nature and Experience excels those more Ancient times whose Acts and Deeds they recognize which fell out otherwise in Acts of Oliver Cromwell For it is a great unhappiness to the people when the deeds of Henry the eight must be imposed upon them Tirannically maimed and compiled by the Judgment and choice of a less wise and Learned man Thus have I shewed you the obscurity of Laws arising from the excessive and confused accumulation thereof I shall next speak of the dark and doubtfull description of them 96. Obscure description of Laws arise either from the Loquacity oâ— Verbosity of them or again from extream brevity or from the preamble of a Law repugnant with the body of a Law 97. I shall now instruct you how to enlighten the obscurity of Law ariseing from a corrupt and crooked description thereof The Loquacity and Prolixity which hath been used in setting down Laws I dislike neither doth such a writer any way compass what he desires and labours for but rather the quite contrary For while a man endeavors to pursue and express every particular case in apt and proper tearms hoping to gain more certitude thereby contrary-wise it fals out that through many words multitude of Questions are engendred so as more sound and solid interpretation of Law according to the genuine sence and mind thereof is much intercepted through the noise of words 98. And yet notwithstanding a too concise and affected brevity for Majesties sake or as more imperial is not therefore to be approved specially in these times least Law become perchance a Lesbian Rule wherefore a middle temper'd stile is to be imbraced and a generallity of words well stated to be sought out which though it do not so throughly pursue Cases comprehended yet it excludes Cases not comprehended deerly enough 99. Yet in ordinary and politick Laws and Edicts wherein for most part no man adviseth with his Counsil but trusteth to his own Judgment all shall be more amply explicated and pointed out as it were with the finger even to the meanest Capacity 100. So neither should I allow of preambles to Laws which amongst the Ancients were held impertinencies and which introduce disputing and not Commanding Laws If I could well away with Ancient customes But these prefaces commonly as the times are now are necessary prefixt not so much for explication of Law as for perswasion that such a Law may pass in the solemn meeting of a State and again to give satisfaction to the Communalty yet so far as possible may be let Prologues be avoided and the Law begin with a Command 101. The mind and meaning of a Law though sometimes it may be drawn not improperly from Prefaces and Preambles as they term them yet the Latitude and Extention thereof must not be fetcht from thence for a Preamble by way of Example sometimes fetcheth in Layes hold upon some of the most plausible and most specious passages when yet the Law compriseth many more or on the contrary the Law restraines and limits many Cases the reason of which limitations to insert in the preface were superfluous wherefore the dimention and Latitude of a Law must be taken from the body of a Law for a Preamble often fals either short or over 102. And there is a very vitious manner of Recording of Laws that is when the Case at which the Law aimeth is exprest at large in the Preamble afterwards from the force of the word the like or some such term of relation the body of a Law is reverst into the Preamble so as the Preamble is inserted and incorporated into the Law it self which is an obscure not so safe a course because the same diligence useth not to be taken in pondering and examining the works of a Preamble as there useth to be done in the body of a Law it self Touching the incertainty of laws proceeding from an ill description of them I shall handle more at large hereafter if this be acceptable I shall next teach you how to expound Laws and by what wayes 103. The wayes of expounding Law and Solving doubts are five for this is done either by Court Rolls and Records or by Authentique writs or by Subsidiary books or by prelections or by responses and resolutions of wise men all these if they be well instituted and set down will be singular helps at hand against the obscurity and errors of Laws 104. Now especially above all let the Judgments delivered in higher and principal Courts of Judicature and in matters of grave importance specially dubious and which have some difficulty and newness in them be taken with faith and diligence for Decrees are the Anchors of Law as Laws are of the Republick 105. The manner of collecting such Judgments and reporting them let this be Register the Case precisely the Judgments exactly annex the reasons of the Judgments alleadged by the Judges mingle not Authorities of cases brought for example with cases principal as for perorations of Sarjeants Counsellors and Barresters c. Unless there be something in them very remarkeable pass them over with silence 106. The persons which should collect these Judgments â—t them be of the order rank of Sarjeant Wild Mainard Twisden Sr Peter Ball c. the Learnedst Advocates and let them receive a liberal Remuneration from the State let not the Judges themselves meddle at all with these Reports least perchance devoted to their own opinions and supported by their own Authorâ—ty they transcend the limits of a Reporter 107. Digest these Judgments according to the order and continuation of times not according to Method and Titles for writings of this nature are as it were the History and Reports of Laws nor do the Decrees alone but their times also give light to a wise Judg. 108. I advise you to let the body of law be built only upon the laws themselves which constitutes the common-Law next of Decrees or Statutes in the third place of Judgments enrolled besides these either let there he no othere