was suffered in the Civil law parents by a law of the Tables might sell their children thrice g Sect. 18. The Lord had power of life and death over his slave h Insl l. 1. gloss servitus The Petronian law restreins from forcing them to fight with beasts at their pleasure not observed more then the Edict of Nero which deputed Cōmissaries to hear the complaints of slaves They put them to death for trifles Vedius Pollio threw a slave to be devoured of Lampries which he fed thus for breaking a glasse i Dio. l. 54. If a Lord was murdered by one servant it was the old custome saies Tacitus to condemne and put to death all the slaves according to which in the case of Pedanius secundus Provost of the City four hundred innocent men lost their lives k 14 Ann. Where law setled quietly without any awe upon those who are to receive it has too many of Draco's Rubrickes of blood it is terrible Our lawes are not cruelly bloudy they distinguish betwixt intentions and actions and actions as they have their degrees of mischief have their degrees of punishment King Edgar wills in a law That in offences clemency and forgiveness be used as much as justice so that punishment may b◠tolerable l Ll. Nol. 1. Ll. Cnuti 1 2. ve a command not forgot it has continued with the laws Godlike mercy ever saving more then justice strikes Wisdom and mercy justice and grace are joyned m Beact l. 2. as is observed in the beginning No free man can by this law be disseised of his free hold but by lawful judgement c. In those articles against the most worthy Earle Hubert de Burgo he concludes It seems to him That he ought not to answer without restitution being disseised of what he had since no disseised man is obliged to answer in any Gourt c. n Additam Par. 153. This is more visible by the law since As the Lord Cooke if a man be accused or indicted of Treason or Felony his Lands cannot be granted to any not so much as by promise no seisure can be made before attainder o Inst 36 48 Mag. Char. c. xxii Abjuration challenges to the Jury Clergy were no smal favours of the Law If a Felon demand his book and can not read and demand it again under the Gallows and read he shall have the benefit of it p 34. H. 6.49 One Indicted of Felony produces a Charter of pardon discordant to the Jnditement and to his name the Court perceiving the King meant to pardon him remanded him to sue for a better pardon q 46. Ass B. F. Office del Court as if mercy were given in charge to the Justices they ought of office to take notice of all generall pardons though the party plead them not r Dy. 28. and there if all Felonies under twenty shillings be pardoned the Judges ought to dismisse him to God as the Booke who is indited where the Theft is under that sum The Justices heretofore knowing the Felon to be a Clerke who tooke himselfe not to his Clergy would not give Judgement to hang him ſ 22. E. 3. If the Prisoner for Treason or Felony has any matter of Law to plead he is to be allowed his Counsell after the plea of not guilty where it will not be allowed the Court ought to be instead of Counsell for the Prisoner to see that nothing be urged against him contrary to Law and Right Nay any learned man present may give information to the Court in behalfe of the Prisoner for his benefit t 3. Inst c. 2. The Judges as in Humphrey Staffords case is observed u 1 H. 7.26 3 Jus 29. ought not to give their opinions before hand which is condemning a man before he be heard the way to make indifferency impossible whereas as the Lord Cooke untill the party has made his defence things may be represented much to the disadvantage and a small addition or substraction may alter the whole Case In Common Pleas where the Defendant has accepted the Writ or Title where he has lost his advantage by his conclusion or the issue be found against him yet if it appear to the Court that the Plantiffe has no Title no cause of Action Judgement shall not be given against the defendant w Plowd 66 Dy. 13.76.119 120. Every restraint of a free man though not within the walls of a prison is imprisonment x 2. Just 482. Rot. Pael 2. H 4 nu 60. No man is to be arrested or imprisoned against the form of the great Charter before recited y 2. Just 54. No man is to be imprisoned but for a certain cause to be shown z ibid. 53. to be conteined in the Warrant c. the conclusion of which ought to be and him safely to keep untill he be delivered by law c. As the fift of king Henry the fourth None are to be imprisoned but in the Common Goale to the end they may have their tryal at the next Goale delivery c. As Justice Fitz Herbert to keep a man in prison without coming to his answer is against Law a Na. Br. 118. c. The Abbot of S. Albanes would not make a Goale delivery at the time to save costs he lost his Franchise by it b 8. H. 4.18 The Abbot of Crowland forfeited his Franchise for deteining prisoners after acquittal and their Fees paid c 20. E. 4.6 such deteining after the Habeas Corpus is false imprisonment d 2. Just 53. there are many provisions for those who are grieved in these cases by Indictment Writs and Action e ibid. 55. Though the law requires safe and streit custody that must be without any torment or pain to the prisoner relief may be had against cruel and hard usage of a Goaler f 3. Just 35 91 92. The prison as Bracton is not for punishment but custody A certain Priest arrained in the time of King Edw. the second put himself upon the Country and stood at the bar in Irons but by command of the Justices he was freed from them g Fish Corene 432. and as to irons saies the Lord Coke there is no difference betwixt a Priest and a layman h 3 Inst ubi sup No felons comming to answer in judgement ought to be charged with irons i Brit. c. 5.14 c. 11.17 The law of the Land is a law of mercy for three causes as the Lord Coke 1. The innocent shall not be wasted by long imprisonment but speedily come to his trial 2 Prisoners for criminal causes brought to their trial ought to be humanely dealt with 3. The Judge ought to exhort them to answer without fear to assure them that justice shall be duly administred k 2 Ins 316 The Law has a most tender regard as is said of the life of man By a Canon
without triall justice shall not be sold nor deferred c. The observation of these Lawes was a condition of Peace which ever appeased the antient distempers and cemented what was loose and dis-joynted in the great body The Lawes toe of St. Edward are inserted into the oath of the Kings of England usually taken at their Coronations which were not onely superfluous and abundant but an impious vanity if there were no such lawes any where after the solemnity of this religious and sacred bond to be observed The manner of taking the Oath as we find is this The Archbishop asks the King VVhether he be willing to take the Oath usually taken by his Predecessors and whether the Lawes and Gustomes by the antient just and devout Kings granted to the people of England with the confirmation of his Oath he will grant and keep to the same people and especially the Lawes Customes and Liberties by the glorious King Edward to the Clergie and people granted d Ex libro regali After he is led to the high Altar where he swears to observe them c. Further so farre are some from allowing our Lawes to be Norman that they are of opinion the Normans received theirs from us as they most of their Customes being so derived as William of Rovel in his Preface to his Commentary upon the grand Customary Edward the Confessor being a long while in Normandy gave Lawes to the Normans and made the Customes of England and Normandy e D. Spel. gloss v. jurata which if it were not so nothing is lost by it nor does it make any of these truths suspitious * Sup. 55. that so few of these Lawes are come to our hands of which something is said before and of their book-Book-Cases or Judgments none at all There never could be any such Volumes of them heard of as are fancied besides the honest simplicity of the first ages and the strictnesse of rules spoke of writings and deeds either to pass Lands or Priviledges were not in use till King VVithred neer 700. years after our Saviour that King being so illiterate that he could not write his name as himself confesses f Concil Sax. 198 King Aelfred little lesse then two hundred years after this complaines of the ignorance then that there were scarcely any on this side Humber who could understand the ordinary common prayers or translate a piece of Latine into English but in the beginning of his reign on the South of the Thames he remembred not a man who could have done it g Ibid. 379 Epist Aelfredi ad Walsagepiscep and although this King of sacred memory if perhaps as I cannot thinke he was not the Solon and Arthitect of our Saxon English order yet a great restorer of it built gloriously upon the frame he found yet these were lesse then beginnings would likely have been where such a Prince had been the Workman he could not intend them the Danes like a fatall whirlewinde tearing up root and branch every where ruining had long before broke into the Land which two hundred yeers together they miserably harassed with whom he fought fifty six battells and as may be imagined had not leisure to performe the duties of peace but in his armes sometime hid in the poore shed of an Herdsman as the most knowing Knight a King without a Kingdome a Prince without people so that hee could not thinke of his Lawes h Concil 378. and although there was some breathing and the storm had some intermission some calmes were in the two hundred yeeres some in his reign yet such ravage and spoil had these barbarous theeves made and so universall might the Confusions and Disorders be we may conceive it would be the labour of no short peace to restore things fallen or shaken to their first condition without making any the least progression this being not to be done till the corruptions which warre licentiousnesse and carelesse negligence have bred in the parts most sound are plucked up and the weeds throwne out which must be the worke of time The proceedings too of the Saxons our Ancestors as M. Lambard in judgement was de plane and without solennity enough to cleare this though the Saxon Lawes then were enough for the Commonwealth yet they had no great extent whatsoever unto S. Edward gathered out of the Lawes of those who followed this King and saw more quiet dayes or out of the whole body of the Saxon Lawes could not reach farre but not out of any defect in the Law it selfe then the cause why the law runs in a larger channell and spreads into more veines now is not any artifice or injust dealing of those who practice it but the improvement of estates by good husbandry much traffique whence contracts are more frequent As Sir John Davies there is more Luxury and excesse in the world more force deceit and oppression more covetousnesse and malice breach of peace and trust which as they gather strength and multiply so must the laws there is a necessity that as these mischiefs increase there should be supplements of laws to meet with them Mr. Daniel observes of the Assize of Clarendon long after the Saxons that it consisted as it does of very few points and that the multitude of actions which followed in succeeding times grew out of new transgressions c. When the Romans were little better then shepheards and herdsmen it is said a few Ivory tables contained their laws after they came to be Lords of the world thousands of Books were writ of the Romans Civil Law Albericus Gentilis justly reprehends Ludovicus Vives who maintained as he that all things might be finished by a few laws as the same Mr. Lambard speaking of the Law of England positive or written Law neither is nor can be made such a perfect rule as that a man may thereby truly squâ—e out justice in al cases which may happen for written lawes must needs be made in generality and grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particularity which experience and time doth beget i Archeior 76 77. There is a curse of peace the highest prosperity has its dangers there can be no safety in it the rich man is more infirm more unsound then the poore pride and malicious contention are diseases he is seldom free from it is well said of wicked men and their injustice there is need of many laws to bridle them of many Officers to execute of many lawyers to interpret those laws We know all laws come not in by heaps but as time corrupts things and new wrongs and offences are discovered by the same degrees Thus the Sumptuary laws amongst the Romans came in the Fabian of Plagiaries the Julian of publike or private force de ambitu and the rest all our Statute laws which are remedying So must it be and so it has been in all Commonwealths of
intent to hurt the adversary they see not before how great it is and however are too weak of themselves were the right of their side and most plain to manage it to the best advantage It may seem strange too why the ordinary course of our Circuits should not now be sufficient why we should need quicker returns of this sun of Justice unlesse we think our selves the worst of all men and our age the most corrupt every day falling further from the piety of our forefathers and more prone to oppresse and devoure one another were there a recession from the known Law after a few of the first judgements not to go on far it may be feared there would be no small discord and contrarieties in the determinations where the Courts should be so numerous not derived from one fountaine nor judging by one rule that would be Law and right in one County which would be wrong in another and which is the greatest curse in the Law that which should be most certain would be without any certainty at all To proceed instead of Conservators of the peace at the common Law now antiquated there are Justices of peace of larger power then the Irenarchae of old appointed to take care not so much of the publique discipline and correction of manners as for the peace and security of the highwaies m Cod. Thead in rub de Irenarch l. 1. Their name shews why they were instituted They are in their sessions quarterly to heare and determine all Felonies breaches of the peace contempts and trespasses They are to suppresse riots and tumults to restore possessions forceably taken away to examine felons apprehended and brought before them To provide according to the Statutes for impotent people and maimed souldiers to punish rogues beggers forestallers and ingrossers c. to commit or bind over offenders to the Sessions or Gaole to take recognizances for the peace c. such a form saies the Lord Coke of subordinate government for tranquillity and quiet c. as no part of the Christian world hath the like if the same be duly executed n 4 Inst 170. suites There are other Coures for administration of justice of narrower jurisdiction and confined in smaller limits of some of which I have spoken before yet able to put an end so small differences and ordinary trespasses not to be prevented sometimes amongst neighbours if men would be so contented Who commonly themselves make the Courts below thin and are the causes of the troubles they seem to detest let the quarrel be as trivial as is imaginable for an Asses shadow yet as in some Countries the custome is to threaten they wil have a London proces for him the poorest clownes wil trudge to London on foot from the farthest parts of the North or West more miserably then Carriers horses and undoe themselves which is no hard matter with one journey rather then not discharge their full spight who if they return not back as merrily as they set out they may thank themselves But because delay is charged up on the Courts not onely as an heynous crime but such as must by all means be born with them inseparably inherent to them something I wil speak of that I wil make it evident that delay is more odious to the Law then to those who complaine of it and that it bred from nothing else but the corruption without We finde in the Saxon lawes not onely one which fines the Shieriffe for doubtlesse of him is the word gtrtfan there meant o V. Ll. edu sen c. 5.11 who sentences not according to right after the testimony of witnesses p ibid. Ll. c 5. but also another commanding the Shieriffe to keep his Court to have his Assembly which now we call the County Court as the words and institution of King Edward the elder every moneth And that every man may have justice and every plea an end at the day when it comes whoso omitteth this still as the Law he shall make amends c. q ibid. c. 11 like that of the twelve Tables SOL OCCASVS SVPREMA TEMPESTAS ESTO We need not wonder that suits could be so prepared or rather that so little could be in them that they could be dispatched in a day if the plainnesse of the age before noted be considered when the folcland the possession of the rural man passed without writing and the bocland not to be aliened if there were such a condition in the writing r Ll. Aelfr c. 37. in a few words No man might change any thing but in the presence of the gtrtfan or Baily or of the Masse Prieâ—t or of the Hordre or of the Lord or the soile c Å¿ Ll. Aethelst c. 10. and no man might buy beyond twenty pence but within a Town before the Portgreve other tenth man or with the Shieriffes witnesse in the Folcmote t ibid. c. 12 To look downward Magna Charta has it We sell no man nor deny or delay no man justice and right u c. 29. It is a maxime in Law Lex semper dilationes exhorret The Law alwaies as Markam eschewes delaies w 22 H 6.40 a.v. w. 1. c. 40 44 45. w. 2. c. 25. sta Glou. c. 2. The Barons of the Exchequer are commanded to doe right to all men without delaie x 20 E. 3. c. 2.28 E. 1. c. 10. they are sworn to it y 4 Jnst 109. The common Law requires often that full and speedy justice according to the words of those wâ—its be done to the parties z Na. Br. 23.182 4 Just 67. all writs of Praecipe quod reddat are That justly and without delay he render c. all Judiciall Writs are without delay c. When any Court makes delayes and will not give judgement the Writ de procedendo ad judicium lies The words of which are Because the rendring of judgement of the plea which is before you c. hath taken long delayes c. We command you that you proceed to give judgement thereupon with that speed which is according to Law and Custome When execution is denyed the Writ of execution of judgement lyes by which the Justices are commanded to canse execution to be done without delay of the judgement lately given a Na. Br. 20. v. 2. Jâ—s 270 271. There was a Court raised by Statute for redresse of delayes in the great Courts where yet the delaies are not imputed to any foul play of the Ministers of justice The words are Because diverse mischiefes have happened of that that c. the judgements have been delayed sometimes by difficulty sometimes by diverse opinion of the Judges and sometimes for some other cause it is assented c. a Prelate two Earles and two Barons henceforth at every Parliament shall be chosen which shall have Commission and power of the King to beare c. the complaints of those that will complain to
them of such delaies c. and to cause the same Justices to come before them c to hear the cause and reasons of such delayes which cause and reasons so heard by good advise of themselves the Chancellour Treasuâ—er the Justices of the one Bench and other c. shall proceed and make a good judgement c. if the difficulty were so great to require it they were to bring the tenor to the next Parliament Where a finall according as this Statute was to be taken according to which the Judges were commanded to proceed to give judgement without delay b 14 E. 3. c. 5. Causes have used to be adjourned out the Courts and to be determined by an assembly of all the Judges called since the Exchequer chamber as in Chudleighs case c V. 1. warranted saies the Lord Coke by the common Law and ancient presidents before this Statute The frequent use of which so he has been the cause why the Court founded upon that Statute of Edw. the 3. hath been rarely put in ure d 4 Just 68. There is a Court erected by Parliament for errours in the Kings Bench as it is called by the Statute e 27 El. 8 3â— El. c. 1. and for those who love no errours another Statute commands That judgement be given after the demurer is joyned and entred notwithstanding any defect in proces or pleading other then such as the party demurring shall particularly expresse f 27 El. c. 5 If things were truly looked into we should finde delayes and other indirect courses to proceed from the artifice and unjust subtilties of suitors of those who prosecute bad causes to infest and wrong other men and from the cheating Mountebanks a skum of litigious men of no rank nor quality nor of any study in the Law who undertake them Impostors more doted on then those of the profession famous for their integrity and industry really and honestly understanding Impostors rather to be listed under the notion of Incendiaries and common Baretors then of any others catching at any thing refused by the honest learned practiser venturing to soder the most broken title by sleights and false daubings to the ruine at last of those who imploy them though not without some mischiefe and infinite vexation of the adversary and the injust Client having consumed himselfe much is encouraged not to flinshe for what follows is blown up with fresh hopes tampered with new shifts and arts of reviving till he has given himselfe wholly up till he is wilful and at last like a Gamster swearing over his last stake he loves every tergiversation and struggles with all his power and cunning to avoid the disgrace and losse of being overthrown when he must see while there is any justice left it cannot be avoided but when this blow hits him though himselfe was the worker and the motion began and continued from his own hand then he implores the faith of God and man Hence is a never dying quarrel to the Lawes the justly deserved calamity is imputed to nothing else If deceits and wrong may not be secure and happy the Lawes shal be cursed and blasphemed like Tacitus his Gods rather carefull of any thing else then to provide as he prophanely for our safety But in these exceptions to the Lawes the kindnesse would be wonderfull if the professours should goe free as it might we meet with an old censure which at the first fight seems something Councellours which includes the professors of all Laws alike it is this That the Lawyers of the best quality and fame one and another all of them seldome refuse any man and since their cannot be a right of both parties oftentimes defend the wrong which in good conscience they ought not nor cannot wish should prevaile To this I reply every right is not clearly seen nor every wrong suddenly known * 4 Reppreface of late some Statutes are long and full of perplexities ill penned here are late and new inventions in assurances which the eye of the Law before never beheld Many unskillful Empericks are employed about wills and Conveyances where if the words of their general president or receipt if they have any will fit the sense of the party who conveys 't is well and lucky otherwise the patches of their own prove dangerous And some ambiguities in clauses and expressions may happen which cannot easily be tryed by any law before nor can any Councellour very often assure himselfe he may give his opinion conjecturally and probably and that is all accidents alone the act of God may make things litigious which it is not in the power of the most wise to prevent The lawyer himself too may not stranges a a man make his mistakes something may slip from him imperfect which may trouble others to judge Suarez speakeâ— excellently of this For whereas says he such is humane condition that a man can scarcely explicate his sense in so perspicuous words but that often ambiguities happen especially in laws of men which are briefly and generally delivered therefore in applying them to various cases in particular many time doubts arise to take away which the Legislator either not in being or at hand to declare his intent The opinion of wise men and interpretation doctrinal is necessary out of which necessity comes the skill of the Civill Law weighty because in every Art the judgement of the skillful of that Art is of great moment and inducing at least probability that is all for if all were of one minde they would make a moral certainty in these things g l. 6. deleg c. 1. The Statute raising the Court for delays before-mentioned makes it plain there may be not onely difficulties but diversities of opinions in the Judges too h 14. E. 3. c. 5. there may be postnate cases which could not be foreseen in the laws where all remedies could not be comprehended nor are all things which follow in confimili casu The Statute of exemplifications begins For the avoiding of all such doubts questeons and ambiguities as have risen and been moved c. in and upon the 3 and 4 of Edward the 6. i 15 E. v. 32 H. 8 c. 26. The declarative Statutes are commonly made to take away doubts and incertainties before Nor is this any wonder that the Councellor should guesse at the case when in the extraordinaries in things strange and undiscovered the Judges themselves sometimes are divided Of the case of the Shellies and the Unckle the Nephew in Queen Elizabeth her time the Lord Cooke reports thus After the said case was openly and at large argued by the Councel of either party in the Queens Bench three days the Queen hearing of it for such was the rarenesse and difficulty so he of the case being of importance that it was generally known and out of her gracious disposition to prevent long tedious and chargeabl suits betwixt parties so neer of blood which would be
too much or too little That of dissection and partition of the debtors body being bankrupt he charges as most cruel and horrible The words are AERIS CONFESSI REBVS Q. JVRE JVDICATIS TRIGINTA DIES JVSTI SVNTO POST DEINDE MANVS INJECTIO ESTO IN. JVS DVCTIO NI JVDICATVM AVT. QVI. ENDO EO IN JVRE VINDICIT SECVM DVCITO VINCTIO AVT. NERVO AVT COMPEDIBVS QVINDECIM PONDO NE. MINORE AVT. SI VOLET MAIORE VIN ITO SI VOLET SVO VIVITO NI SVO VIVIT QVIEM VINCTVM HABEBIT LIBRAS FARRIS IN DIES DATâ— SI VOLET PLVS D ATO TERTIIS NVNDINIS PARTIS SECANTO SI PLVS MINVSVE SECVERVNT SE. FRAVDE ESTO This which willes where there is morbus or aevitas fickness or age that the party appear before the Praetor jumento vectus which he abhors as a new face of a funeral It saies SI IN. JVS VOCAT SI MORBVS AEVITAS VE VITIVM ESSET QVI IN. JVS VOCABIT JVMEN TVM DATO SI NOLET ARCERAM NE. STERNITO These are all his exceptions and for these as it may seem in his words There are things in the Laws most obscure some hard some gentle and remisse Sexius Caecilius as Gellius famous for his knowledge and use in the discipline of the Laws of the Romans and for interpreting of them answers for them Thus. The obscurities are not to be ascribed to the fault of the Writers but to the ignorance of those who cannot reach them long age weares out both words and ancient manners in which the sense of the laws are comprized he tels him the tables were composed three hundred yeeres after the building of Rome 700 yeeres or little lesse before their times he defires the Philosopher to give over the endeavour of defending and opposing what he listed To consider more gravely what the things are he reprehends to leave a while the Acad my with its disputations He tels him that the sicknesse named in the last Law for there he begins was no grievous sicknesse such as might make it inhumane to cite any man Morbus sonticus is the Law term to expresse that That jumentum is not a beast but a carriage here and that without this carrying to the place by law the party summoned might make an everlasting essoine He sayes in the first law of injuries onely lighter injuries were meant besides the AS anciently was a pound weight for greater injuries the Talio was used which he grants could seldome and hardly be done according to the words and meaning of the Law but he sayes in that The decemviri intended chiefly to restraine violence by fear Nor did they think so much consideration was to be had of him who had maimed or broke any member of another and would not agree with him to redeem the Talio where he had his election as to make it materiall whether the hurt was wilfully done or not or whether there were that exact justice and equality in the Talio which is required by our Philosopher And how can it seem cruel saies he That that should be done to thee which thou hast done to another For the other of the creditor cut in pieces he givs these reasons The Romans so he esteemed nothing so venerable as the Publique and private faith also in contracts as well as other duties in the use and commerce of money lent They thought this help of temporary want which the common life of all men stands in need of some time would not be had if the perfidiousnesse of debtors might deceive without some grievous penalty which went by these steps after judgement the debtour had 30 daies allowed him to procure the money if he paid it not he was delivered by the Pretor to the Creditor c. yet might he redeem himselfe within 60 daies after three of the great markets he paid the score with his life c. The creditors if more then one being permitted to cut the body into pieces a punishment denounced with the intent never to come to it that no man should suffer it Necessary for terrour sake because wicked men contemn addiction and bonds yet never as he in his knowledge put in execution Can any man imagine saith he that we should see so many as now we doe lye in giving their testimony if the judgement in the twelve Tables were not antiquated That the convict of this crime should be thrown headlong from the Tarpeian rock The sharpnesse of avenging offences is the discipline of living well and warily These things saies Gellius did Sexâ—us Caecilius discourse all that were present and Favorinus himselfe approving and praising him d Gell. l. 20. c. 1. He that dotes not too much on his own great parts that is not too much an admirer of himselfe will not think the law an easie study that its height can be taken at a distance oftentimes in other learning we goe about till we meet a choise author and one such as he may be may serve the turn It is not so here where many year-books many book cases and judgements not extrajudiciall opinions and conjectures of private men too frequent every where else severall Statutes with the common customes make but one body and are all to be read and known whose bulk as it is not so ample to weaken the firmnesse or soundnesse of the constitution or make the symmetry of the parts lesse admirable yet cannot it be subject to the carelesnesse of the first fight and let the eye be never so stedfastly fixed I know not who can judge the Architecture of the Escurial by one piece or perhaps upon the ascent of the first staire The most knowing Sir Henry Spelman saies of our law that it is perpetuis humeris sustinenda it requires the whole man revelation is of litle use here Those who are really what they seem and more may say as Aristotle does of all men The greatest part of the things we know is the least of those we know not But we are told of such as are not thought so onely but are wonders of men who have the world of knowledge within them living walking libraries men of strange parts It is reported of Lodovico Pontano of Spalato that he could not onely recite not onely the titles of the lawes but also the whole body yet he dyed in the thirtieth yeer of his age Of Suaerez that he could cite any place of St. Augustine in the very words of that father Of Abulensis Hic stupor est mundi qui scibile discutit omne Of the Earles of Mirandula of the Scaligers we are told admirable things of Ioseph that he could be asked nothing which he was not able presently to give satisfaction in besides the tongues the Nubian too which he was most excellent in he had left they say no Science no Discipline untouched Of others that they knew as much of the Civil Law as the great Civilians yet could not be ehought to have leasure to salute it a far off
great distraction in opinions Hence it is that Gentilis and Alciat require that the authorities and cases of the Doctors be weighed not numbred k Gentil l. 3. Epist Alciat l. 4. perarerg c. 17. Which is otherwise in our Law where the judgement of any man whatsoever is not of authority nor is any thing binding but the determination of Courts and the rule of judgements before Lawes are not causes of strife but the variety of senses which is put upon them we are told of a constitution of Pope Nicholas the third upon the rule of that Monster Francis of Assise in the argument ambiguous and doubtful enough yet did it never trouble the Order all Glossers and Commentators being forbidden to meddle with it l Concil Trid. 660. He that puts out the Imperial institutions sayes he has added the cases or Themes as they call them of Cornelius Vibulanus Having rejected the old as barbarous and uselesse and that he has cut off part of those Notes taken out of the Commentaries of the Doctors which are called small accessions because so he very many of them were partly wide of the marke nothing to the purpose partly absurd andridiculous Till of late there was never any glosse upon our Littleton and now that which is is made up out of the resolutions and judgements of Courts not as if Littleton needed any confirmation One of whose cases was acknowledged for Authentick by four Judge in the time of king James with this expression That they owed so great reverence to Littleton they would not suffer his case to be disputed or questioned m Mich. 21 Jac. B. C. The Civil Law hath its circumstances and exceptions the anomale before and in the contestation of the suit to the Fact of the intention of deceit fear c. temporary perpetual It s formulae or solemn forms by which let the matter of Fact be never so orderly related if either no conclusion or an unfit one be collected from it the whole libell falls Sometimes sayes a French Civilian of the Parliament of Paris a Proces is determined by contrary arrests differing from others preceding then which is pittiful this clause is added to the Text of the arrest Without drawing it to consequence or the motive I believe not alwayes is registred France sayes this Bodin again bas more laws and Customes more Proces and suits then the rest of Europe beside and more have been prosecuted in the last six score yeeres then in a thousand before which have througed in more and more as he goes on since that Charles the seventh and his successours have begun to people the realm with lawes made after the mode of Justinian with a long train of reasons against the forme of the antient Ordinances of the kings and sage Legislators he addes Where laws are few and simple rather commanding then intreating and reasoning Commonwealths have flourished to a wonder under them Whereas others with their Godes and Pandects in a few yeers have been destroyed or troubled with seditions or the mischiefs of Proces and wranglings immortal n Repul l. 1927 l 6. By the multitude of Authors and Doctors as the illustrious Viscount the law is torn in pieces the Judge astonished and the proceedings everlasting o Angm. Scient 691 We may see as this French man again enough of these suits aged one hundred yeers as that of the Earldome of Rais so well managed that the parties who made the entrance into it are all dead and the Proces yet alive Nor are the terms of the ancient laws of the Tables to us now who know not the propriety of the first Latin much more winning more graceful then ours Where they are certainly antient they will seeme as hard to the first sight as any and their sense as strange after as the sound of others As that Senates should be used for revolters reconciled reunited Fortes for good men never revolted p Tab. c. 49 Pauperies in the law Siquadrupes pauperiem fecerit c. Should signifie hurt or damage q c. 15. Proletarius a word which a Lawyer in Gellius takes to be of Grammer learning and when he was shown it in the tables is content to say he had not learned the Law of the Faunas and Aborigines a poor Roman whose rate in the publique valuation of good was 1500 Asses or one that did nothing for the publick but get children r Gel. l. 16. c. 10. Tab c. 44. A famous Grammarian being asked what those words out of the ancient Actions in jure manum conserunt sayes the tables ex jure manum consertum mean sayes he taught Grammer A way of suing they signifie which he had never heard of Å¿ v. Gell. L. xx c. 10. Godwin antiquit l. 3. c. 21. That retanda flumina in an old Edict should be rivers to be cleered of trees growing in the Channel or upon the banks and hanging over from retae such trees t Gell. 11. c. 17. This of the tables will appeare as strange as any thing QVI. SE. SI ERYT TEST ARIER LIBERI PENS VE FVERIT NI TESTIMONIVM FARIATVR IMARN BYS. INTE STABILIS QVE ESTO u Idd. 15. c. 13. A. Gellius in his ch where he asks the question upon manum consertum speaks thus of the learning of the laws and the termes I have thought fit to insert into my Commentaries whatsover I have learnd from the Lawyers and their bookes because he that lives in the midst of things and men ought not to be ignorant of the most famous words of civil actions Amongst the later terms which are proper and necessary for the sense they serve many of them would trouble much our over curious Sirs they would not willingly be brought to an acquaintance with them Such are Suitas The quality of the heir inducing a necessity of succession the definition of which has perplexed some of the Authors not a little yet no worse doubtlesse then the Haecceitas of the Metaphysicks as is confessed by them it is unheard of of old but say they in those things which by degrees are received and become of use we ought not too strictly to eye our selves to the Canons of the Grammarians Alciaet who is known to all the world often used the word superesse rebus Which is used for overseeing and managing anothers businesse more then Gellius ever knew or thought of where he blames another false and strange signification of the word which sayes he was inveterate and got strength not onely amongst the rabble but in the Courts it being ordinary to say bic illi superest for he is the Advocate of such one w l. 1. c. 22 neer the last sense Secta which is used for Reason interleverit for deleverit insidiare for insidiari infecta for corrupta honestus for dives which is a great depravation reformare for rescindere prodere for dimittere per aversionem emere which
the Law yet no where in it I think once naming our most reverend Judge Litleton He cals the Laws in just and the Lawyers or interpreters of them ignorant speaking of those of the time of William the 1. upon a supposition that the most of the Lawes were Normanne He and his book are said to be of great account by Dr. Cowel in as much esteem with the students of the Common law as Justinians Justitutes are with the Civilians saies the famous Clarencieux The Lord Coke sayes This is as absolute a booke and as free from errour as ever was writ of humane learning y Pres upon Littlet r. 2.67 r. 10. Epist according to the Judgement of a Court before Litletons word wil passe every where ipse dixit carries things as Master Fulbec Litleton is not the name of a Lawyer but of the Law it selfe more then can be said of any Civilian one or other Dr. Cowel blames his Civilians much that shey were not onely guests and strangers but infants in their own Commonwealth that the most know as little of our Law as the common people and I cannot imagine how by a sight of Litleton Hotoman should know much it is not unreasonable notwithstanding all his learning to suppose with Littleton alone he did not understand Litsleton it would be taken as justly it might either for foolishnesse or malice indeed the greatest possible for the highest impudence if any man so much a stranger to the terms and Language at the first sight meerly by guesse should as slightly condemne the Pandects full of contradictions and needing exposition and amendment as is before shewn out of the Civilians themselves whereas Littleton is as fundamentall as any Law can be and every sentence of his is a principle Nor can any man but wonder at the expression of malice and study to calumniate the book through by which we may see how it is understood being onely a bare collection of special cases under their titles or heads authentick and binding because it is made and composed partly of the customes of the ages before partly of the judgements of Courts and of the Statute lawes without any controversie with any man without any reflexion upon any other law upon any mans person or works saving that once he saies he had heard say There was one Judge Richel who setled an estate intaile with perpetuall remainders with that clause of perpetuities since used but against law that upon alienation of the eldest sonne c. his estate should cease c. meerly ayming at the publike good which makes me thinke here must either be a great mistake in the sense or of the book it selfe Litleton then was not Litleton now The uneven ruggednesse of the French wil not suffer any man to be eloquent Laws as Cicero ought to be be deare unto us and to be prised not for the words but for the publike profit and the wisdome of the Lawgiver Yet is not the stile of Litleton rude but plain as the best French then was plain enough neither neat nor quick as will appeare by the Lord of Argentons stile noted before who lived in our Judges age and writ then most befitting a Judge and the gravity of the subject To the absurdity of the writing part of the invective charged in the slander which is true as is shewn from testimonies of the side of the old glosses I wil reply but this it should have shewn how and where otherwise this is a generall charge which has nothing in it but the malignancy of an enemy from whose rash and unjust censure the happy memory of our Judge may justly appeale to those who know him It is a childish impotency of the mind out of vainglory to calumniate illustrious personages farre enough either from honesty or discretion The haughtinesse of Pompey to raigne alone is with the most nor is it fair to bequarrel and hate all other Nations because they drink not the Loire or Rosne or submit not to I know not what universality as if Alexanders world were returned again not to be ruled but by one Sun What concludes here and makes up the aggravation is extended farther by others and made a cavil it is no more against the Laws That our Laws want method Method never yet so much as a pretence to abolish laws How easily the Pandects may be matched for method I shall demonstrate by the order of the Common law of England After the Curiate laws of Romulus those of Numa concerning Religion the laws of the other Kings all taken into the books of Papyrius and therefore called the Civil Papyrian Laws the twelve Tables followed then the Flavian Helian and Hortensian the Honorary Law of the Praetor the lawes of the people called Plebiscita the decrees of the Senate called Senatusconsulta the law of the Magistrates and customes the laws of the Princes frō the law Royall the opinions of innumerable Lawyers many of which are recited by the second Law of the original of the Law their volumes were huge saies the Emperour z Proaem Instit 5. There were as the glosse three hundred thousand Verses Laws or answers two thousand books and many other Laws so confused so infinitely extended they were not to be shut up in the capaciousnesse of humane nature Out of all these were the Pandects composed and digested which are wel digested but as is said the Code and the Authenticks are not How much more easily might the Common law be ranged into an exact method may quickly be found not being composed of any such bulk not drawn out of any thousands of such answers and books inclosed in a dozen or two of small volumes exceeded in the quantity by the present Imperial lawes hundreds of times over the foundations of it as of all just and civil Lawes are the lawes of God of nature and reason and of Nations as Dr. Cowel Our Statutes and Customes are derived as all just laws else and consentaneous to reason from the Law of nature and of Nations a Inst jur Angl. 25. And again The lawes of England as others over the Christian world are far enough off from the civil Imperial law yet are they tempered seasoned with the equity of it b Praef. ad Inst In his Epistle dedicatory before the Institutions They are not far enough off * v. Chap. 2.50 here as very probably some of these Imperial lawes might come from Rome to the Saxons with their Religion There he speaks thus After I bad spent some yeeres in the comparison of these lawes viz. the Common and Imperial laws I found the same foundations in them both the same definitions and divisions of things rules plainly consentaneous neer the same constitutiom the difference onely being in the Ideome and method Our Common law is nothing but a mixture of the Roman and Feudal laws and in his Epistle to the Reader before his Interpreter he sayes He has in