effectual qualities in Laws that is to contain honesty justice possibility conveniency for the end of Humane Laws is that by the dread of their punishment innocency may be safe in the midst of wicked men There are also certain habilities requisite Certain habilities necessary for Law-makers in those who are Law-makers amongst which the School-men do chiefly esteem these three parts or potential faculties of prudence Ebulia Synesis Providentia The first is the faculty of Counselling and advising aright The second is the habit of judging soundly not so much the Cases of Law already made as the Considerations of Laws to be made The last which is Providence being a fore-sight of future events this hath two parts Circumspection and Caution the one being the consideration of Circumstances lest any thing be defective in the provision of the Law the other searcheth into the Incommodities and Inconveniences whereto such Laws or they for whose safeguard it is made may be exposed The Philosopher requireth to the What the Philosopher requireth in making of Laws making of good Laws Authority Reason general Justice which is honesty and Agreement of the People By the first the Law-maker doth bind by the second he doth know by the third he doth desire to make such Laws as shall be possible and profitable not for himself only or for a few but for all or at the least the greatest number for Suprema Lex Salus Populi The notions and general rules of Nature do teach to shun that which is hurtful but where the Naturalist or Moralist doth not perswade the Politician and Law-maker doth enforce The Moralist doth indeed prescribe general Rules and Precepts what ought to be done But doth not shew so particularly how it should be done The Rules of good and evil prescribed by Nature and set down by the Moralist are by them both enjoyned to be practised by and to our selves but by the Politician and Law-giver those general Rules are applyed and accommodated to the particular Laws of each Nation to be fashioned not only for our selves but for others Therefore it is aptly said Vbi Ethicus desinit ibi incipit Jurisperitus as in Nature Vbi physicus definit incipit medicus Though these positive and politick The necessity and utility of Laws Laws of Men cannot attain to absolute perfection yet that they are of evident utility and urgent necessity I suppose no man doubteth For both nature and necessity the two raisers of Sciences and Invention have as it were conspired to direct and require the use of these Humane Laws because as it is natural unto men to desire and to like that which is others and yet to dislike and abhorr other men from whence come questions controversies quarrels opposition and defence so out of these doth arise an inevitable necessity to lay certain limits which are Laws and Civil Constitutions by which these inordinate desires and designs of men being full of disturbance should be bounded and without which as the appetites and affections of men are restless and of themselves unrestrained so except they were confined and restrained by positive Laws the lawless wills of men would make society uncomfortable and unsafe CHAP. II. The differences betwixt the Laws of Nature of Nations the Civil and Municipal Laws HAving said somewhat of the definition and nature of Laws especially of the Eternal Divine and Natural Law it now followeth that we should descend to discover the differences betwixt the Humane Laws of several sorts These by some are divided into three branches from whence it is supposed that all other particular positive Laws do spring and grow The first is the Law Natural whereof there hath been a little spoken before this is defined to be that which Nature hath taught all living Creatures The second is the Law of Nations which is received amongst all Countries and People The last is the Civil Law which every free Commonwealth ordaineth for it self Caius a Civil Lawyer divideth A division of Laws into two parts these Laws but in two parts that is the Natural and Civil Law for some think that whatsoever Law is Natural the same is also the Law of Nations and so on the other side interchangeably The reason is thus What else is the Law of Nations A question concerning the former division but that which natural Reason hath taught and perswaded all men to be equally good for all So that it is called National or the Law of Nations because all Countries have received it Natural because it had its beginning from natural Reason For the deciding of which doubt The Law of Nature twofold it is to be understood that the Law of Nature is twofold Primary and Secondary the one being that which Nature or rather the God of Nature teacheth all living Creatures the other that which Nature teacheth Men. The first called the instinct of Nature whereby it is common to all living Creatures by the instinct of Nature to procreate and to seek the preservation of their own kind to avoid that which they find to present death and danger to repeal force with force to seek things needful for sustenance and the like This in a general sence is called Jus primaevum or the primary Law of Nature And this doth differ from the Law of Nations which is a Law proper only unto Men and not to other Creatures But the Secondary Law of Nature or of God for both is one and the same containeth and comprehendeth the Precepts of honesty which God and Nature hath infused into Mans heart at his Creation given only unto Mankind and unto him from his beginning as to yield Religious reverence to the Supreme and Divine power to exhibite love and duty towards our Parents and the like This latter part of the Law of Nature doth answer and concurr with some part of the Law of Nations which likewise as the former is twofold that is to The Law of Nations twofold say Primary and Secondary The Primary Law of Nations is that which natural Reason hath insigned all Nations as hath been expressed in the Secondary Law of Nature therefore some have termed the Secondary Law of Nature the antient Law of Nations But there is a Secondary Law of Nations which is no part of the Primary or Secondary Law of Nature this cometh not by nature but by a Judgment gathered out of experience and discourse thereby collecting what is commodious for common society and equally behoofeful to all Nations and this is not ingraffed in nature at first but gotten and gathered by use and necessity which makes thereof a Law as to punish offenders and wrong-doers which is the first head of the Secondary Law of Nature yet not a Rule or Law begotten or bred by Nature But when the perverse nature of Man could not contain it self in temperancy then wrongs offered publick necessity required that they should be punished who would hurt others and trouble the
Enchiridion Legum A DISCOURSE CONCERNING The Beginnings Nature Difference Progress and Use OF LAWS in GENERAL And in Particular OF THE Common Municipal LAWS of ENGLAND LONDON Printed by Elizabeth Flesher Iohn Streater and Henry Twyford Assigns of Richard Atkins Edw. Atkins Esquires And are to be sold by G. S. H. T. J. P. W. P. J. B. T. B. R. P. C. W. T. D. W. J. C. H. J. L. J. A. J. W. J. P. M DC LXX III. THE HEADS Of the several CHAPTERS Conteined in this TREATISE CHAP. I. THE Definition Etymologie Division Perfection and Imperfection of Laws What is required to the making of them and of their necessity pag. 1. CHAP. II. The differences betwixt the Là ws of Nature of Nations the Civil and Municipal Laws pag. 16. CHAP. III. Of the grounds of the Laws of England and how they do differ from other Laws pag. 31. CHAP. IV. An answer to certain Objections usually made against the Laws of England pag. 57. CHAP. V. Of the Books written of the Laws of England whereby the Knowledge thereof is Chiefly obtained pag. 83. CHAP. VI. Of Estates allowed by the Law of England pag. 89. CHAP. VII Of Assurances Conveyances which grow out of these Estates by the Common-law pag. 95. CHAP. VIII Of Actions and of their Trials according to the Common-laws of England pag. 103. CHAP. IX Of Trials allowed by the Laws of England pag. 106. CHAP. X. Of some things in the Ministers and proceedings of our Laws conceived worthy to be reformed pag. 111. Enchiridion Legum CHAP. 1. The definition etymologie division perfection and imperfection of Laws What is required to the making of them and of their necessity MEaning to treat first of Laws in general and next of the Common or Municipal Laws of this Kingdom I conceive it cannot be unprofitable for an Introduction unto this intendment to set down the definition of a Law whereof Justinian hath delivered three derived out of Demosthenes Chrysippus and Papinian One is that a Law is said to be that whereunto men ought to yield obedience as in other respects so especially in this because it is an invention of the Gods a decree of Wise men a correction of offences committed either wittingly or ignorantly a Covenant of the whole Commonwealth with one accord after the direction whereof every Citizen ought to order his life The other is that the Law is said to be a Soveraign of all things both Divine and Humane That is a Commander a Guide and a Square both of good and bad enjoyning that which is fit and forbidding the contrary The one of these is rather a description than a definition and it describeth rather the Natural than the Positive Law And the other is fitting rather to an Orator than a Lawyer We may therefore let them pass and proceed to the third which setteth down the Law to be a general determination of Wise men a Comptroller of Faults either escaped through ignorance or committed upon wilfulness And it is a general agreement of the Commonwealth Jason observeth that the Law is a general Commandment in three respects either because it is founded upon a general Authority or because it belongeth to and bindeth all or else because it is intended general for the profit of all Cicero defineth the Law to be a certain reason flowing from the Divine mind which doth perswade that which is right and prohibit the contrary And Plato saith that the Law obtaineth a name like to the name of the mind But whilst the Law is defined by the Divine mind it seemeth as one saith to be defined by that which is more remote and general than subject to common capacities Yet are these definitions in some sort true being rather referred to the eternal Law than to the positive and humane Laws as shall be shortly shewed in his place In the mean time for that these as the former are as was said before rather descriptions than perfect definitions to come more near to the purpose It may be said that humane Law is an Order and Ordinance including the Rule and Reason of Governing and giving to every man that which is his due directing to the end of publique good determining punishment to the Transgressors and reward to the Obedient Therefore to conclude humane Laws are nothing else but the ordinances and agreement of Wise men concluded by publick Authority for the peace and profit of the greater part of the people living together in society It is said for the greater part because no humane positive Law is so generally good unto all but that it is hurtful unto some by accident if not of it self If any do desire to know from The derivation of the word Lex which we call Law whence this word Lex which in English we call Law is derived Some will say with Isidorus that it hath his etymologie à legendo because after the Law was written it was wont to be read unto the people But this is not so certain in that the reading of the Law by way of promulgation was but accidentary and no essential part of the Law although some have endeavoured to prove that a Law could not be perfectly established until it were promulgated by way of Proclamation Others will derive the word Lex à ligando for as much as Divines hold that men are tyed in foro conscientiae to the observation of the Laws as well as they are bound under penalty to observe the same Yet Cicero concurreth with the first derivation but with a farther-fetch'd reason than the former quod Lex idem sit quod legendi hoc est eligendi regula the reason is nam regula dirigendo docet eligere It may yet well enough agree unto both for one saith Habet Lex quod sit Regula quod sit obligatoria praeceptio How soever these derivations of the word Lex do stand false or true it makes not much matter so we leave them as more Grammatical and Conjectural than certain and infallible The word Lex which in English we A double signification of this word Law call Law hath in our language a double signification or is taken two ways for it is taken both for that which the Latines term Lex and for that which they call Juris prudentia the one being the Art of the other For Lex is the rule and measure of things to be done and to be left undone but Juris prudentia is the knowledge and method of that rule as Justice is the Execution of them both which hath his force in giving to every man that which is his in praemio paena debito So then in the first sence the word Law is properly applyed but in the second it is somewhat largely extended yet use and common opinion hath so accepted it This Law hath for his subject and object the Rule of all Divine and Humane things except God himself who is the great Rule-giver and Law-maker and he
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
being Liberum agens is subject to no Law but his own Will is the perfect Law of Justice which is the Fountain from whence all Laws are derived to all things in Heaven and in Earth Law hath a threefold respect and is divided according to the diversity of things to which this great Law-giver doth dispense Law They are of three kinds to wit the Natural Sensible and Reasonable agents To the first are referred the Elements and all compounded things without life They are guided by that Law which was imposed on them at the begining and they do never break it The second which is the Sensible agents are all living Beasts which are guided not with so forcible a Law of necessity as the first for they are not ordained to keep their certain and setled stations but they do follow their own kind and appetite wherein yet they do not transgress the Laws of Nature The third kind of agents called Reasonable are Men and Angels and they at first were created with a possibility of performing or not performing the Laws imposed on them According to these three forenamed A threefold Law Subjects of Law there is a threefold Law as some say given unto them that is the Divine Natural and Humane The first delivered by God and written by the direction of his Holy Spirit in the Old and New Testament The second stamped and as it were engraved by him in mens hearts The third derived out of the two first and devised for Government and Society amongst men Some others do divide Laws into four parts that is the Law of Providence or the eternal Law of God which is his wisdom by which from Eternity he that is called Antiquus dierum hath pre-ordained all things before their beginning whereof St. Paul speaketh when he saith that Deus voeat ea quae non sunt tanquam ea quae sunt The second is the Divine Law which God hath given in his Old and New Testament to conduct men unto their supernatural end for his Glory and Service and for their own final Salvation Of this Jeremiah speaketh by the Spirit and as in the Person of God Dabo Legem meam in visceribus eorum scribam eam Of the third which is the Natural Law the Apostle Paul maketh mention Gentes quae legem non habent naturaliter quae legis sunt faciunt Of the fourth which is the Humane Law warranted by Gods Word the Apostle Paul likewise speaketh Omnis anima potestatibus sublimioribus subdita a sit So that all these Laws have their warrant from Gods Word save the Eternal Law which was his will and wisdom being from the beginning before any Law was written or could be divulged Therefore next to the Eternal Law The excellency of the Divine Law the Divine Law springing from the same hath his place and preheminence before all other in Dignity and Antiquity because from it all other good Laws have their derivation and foundation or else are squared by it and for that it suffereth no mutation in it self In amplitude because it affordeth the self-same Rules and measure to all Men and Nations without difference of Persons Place and Time or any other such like circumstances by which other Laws are often altered And of this Divine Law the Decalogue or Ten Commandments delivered by God unto Moses on the Mount and by him to Gods people is a Compendium or full Epitome of all the rest as unto which the rest may be reduced as Conclusions drawn out of certain Principles The Law Divine delivered by God The Law of Moses or of the Old Testament more antient than any humane Law unto Moses is in Antiquity before all Humane Laws for though Pliny goeth about to prove that Ceres was the first gave Laws unto men and as others attribute that honour unto Radamanthus yet Josephus writing against Apion directly proveth that Moses was the first did promulgate unto men the Laws delivered unto him from God and that long before those Law-givers whom Isidorus nameth as Pharonius to the Grecians Mercurius Trismegistus to the Aegyptians Solon to the Athenians Lycurgus to the Lacedemonians Numa Pompil to the Romans The Law of Nature is next to the The Law of Nature next to the Divine Law Divine Law in excellency antiquity immutability and severity because it began with mans Creation it never changeth being nothing else as one defineth it according to the part of the Law of Nature which is called secondary whereof we shall have cause to speak somewhat in the next Chapter but dictamen rationis in rationabili creatura therefore this Law of Nature secondary is the effect of Gods Law in the mind of man and the impression thereof as a step in dust is the effect of the foot which first framed it And this secondary Law of Nature is in some sort contrary to that first Law which St. Paul calleth the Law of the Members being a natural inclination to sensuality After these Laws followeth the Humane or Positive Laws of men which being the prescript and particular rules by which the actions of men should be reduced and conducted to their due ends and this grounded on the Eternal Divine and Natural Laws mentioned before but yet still measured and moulded by the reason invention and disposition of men which is most commonly variable and diverse no marvel then if also the Laws of men setled upon such slippery foundation of different reasons and affections be also changeable and subject to imperfection whereof Justinian in his Preface to the Digests doth render the like reason saith he Sed quia divinae res quidem perfectissimae sunt humani vero juris conditio semper in infinitum decurrit nihil est in eo quod stare possit perpetuo multas enim formas natura novas edere deproperat No Humane Laws can be made absolutely perfect no more than other Arts and Sciences can be perfected by men since Art is the imitator of Nature and even Nature her self is imperfect in her works The conclusion therefore is short and certain That those Humane Laws tend most although hardly can they attain to perfection which do square most and most depend on the Divine Eternal and Natural Laws And on the contrary those positive Laws of men are most corrupt and unprofitable which swerve most from them Since we see what Laws are perfectest and which are subject to most imperfection let us a little consider what conditions are required in Humane Laws to help them towards perfection They by Isidorus are described to be these that is that they be honest Certain conditions requisite to bring Laws towards perfection just possible according to nature and custom convenient and agreeable to the time and place that they be necessary and profitable manifest and perspicuous lest by their obscurity the uncircumspect be intrapped that they be not made for private profit but for publick utility Others require fewer yet as
is delivered as from Papinian some distinction betwixt the Roman Civil Laws and the Pretorian Laws made in the same City For it is said there that the Civil Laws did consist of the Statutes of the People the Ordinances of the Senate and Decrees of the Princes with the Authority of Wise men But the Pretorian Laws were those which the Pretors did introduce to supply to help or to correct the Civil Law So is there alledged in the same Digests out of Paulus another division of Laws The first is the Law of Nature the second is the Civil Law the first is freed from Injustice the second is deemed profitable to all or the greatest part of the City and there is added Jus The Pretorian Law differing from and correcting the Civil Law honorarium or the Pretorian Law as if it were no part of the Civil Law wherein it is said the Pretor doth give Law though he doth determine unjustly having relation not unto that which the Pretor doth but to that which is convenient for him to do So that it is not to be wondered that the Municipal Laws of every Country do differ from the Civil or Roman Law or that the Civil Roman Law hath not his full force in all Countries or that it is not the only Law that governeth in any Country Because the City of Rome it self did admit some other Law to be administred within the City than that which was called and accounted their own Civil Law or Jus Civile And where there was question made before concerning the Civil Law whether the same were only the Roman Laws or as well other Municipal Laws Some Civilians do distinguish A division of the Civil Law them into two parts the Roman Laws they call Jus Civile commune and the other Jus Civile particulare To the first they referr also some Municipal Laws especially those Constitutions of the Empire since it was translated to Germany as the Aurea Bulla of Charles the 4th Also the Constitutions and Edicts of The Municipal or Civil Laws of Germany the German Emperors in their Diets or Parliaments which are reckoned and referred to the common Civil Laws because they are ordained by Authority of the Emperor and yet they are in true construction but particular Civil or Municipal Laws because they bind none but such as are subject to the Empire or to those places of the Empire for which they are made and which do submit themselves thereto So hath the Kingdom of France The Municipal Laws of France certain particular Civil or Municipal Laws made in their Parliaments which were anciently the Councils of their Kings but when the Kings of France did separate their Councils of State from those Parliaments yet the Parliaments have been held in certain Cities of France as saith Brison President of the Parliament of Paris at certain times of the year The first and principal held at Paris established by Philip the Fair or as some say by Lewis Huttin his Son the second at Tholose for Languedoe the third at Bourdeaux for Aquitain the fourth at Grenoble for Daulphine the fifth at Dijon for Burgoigne the sixth at Rouen for Normandy the seventh at Aix for Provence the eighth for Bretaign instituted by Henry the 2d Anno 1553. They have also Municipal and particular The Municipal Laws of Spain Civil Laws ordained for the Kingdom of Spain as those set down by Alphonsus the 9th And the like for that and other Countries are extant and in use The Kingdom of Scotland hath as The Municipal Laws of Scotland and of England not altogether different this Realm of England several and particular Municipal Laws differing from the Roman Civil Laws As for the Laws of Scotland they are not so far different from the Laws of this Kingdom of England as divers do conceive and that the Laws of Scotland are not altogether unlike these of England but in many points do concurr with them is not improbable For that there is a Book concerning The Law Book of Regia Majestas in Scotland like to Glanvil's Book of the English Laws the antient Laws of that Kingdom termed Regia Majestas which as some Students having read the same do affirm and as it is set forth in the Printers Epistle to Glanvil's Book do agree much and in many places word for word with the said Glanvil's Book and doth often vouch him So that it is supposed the antient Laws of both these Realms did then agree and do yet in most points which have not been altered by Statute since in either of these Realms Also King James in one of his Speeches made to the Knights and Burgesses of the lower House of Parliament did pronounce and declare that the Tryal in the Chancery of Scotland was brought from this of England shewing the time Author and occasion thereof Therefore it An opinion that the Laws of both these Kingdoms may in main points be conveniently made all one may be conceived that there is not such great discrepancy or contrariety betwixt the Laws of both these Kingdoms but that by due examination it will be found that there is or at least may be a consonance betwixt them in many if not in most points But for the Laws of England how they do differ from the Civil and other Laws shall be shewed in the next ensuing Chapter CHAP. III. Of the grounds of the Laws of England and how they do differ from other Laws OUr Laws of England do differ as in name so in divers other circumstances considerations and conditions from the Laws of other Kingdoms and Commonweals First for the name they receive a common appellation of the Common Laws of England a name scarce given to the Laws of any other Nation Why our Laws are called the Common Laws of England Therefore whence it received this denomination of the Common Law may breed some question Some say that it is called the Common Law to distinguish it from the Laws of particular Customs or of Customs allowed for lawful within this Realm But this is not certain nor scarce probable as shall be shewed anon when it shall be demonstrated that these Customs allowed for Law are rather made parts than distinguished from the Common Law Some others suppose that it is called the Common Law of this Kingdom to make difference betwixt it and the Statute Laws which as they are of another kind of constitution than is the Common Law as will be made evident so are they of several sorts in themselves as some of these Statutes are general and ordained for all the Subjects some are particular and made for the settling of particular mens Estates and of particular Trades Corporations and Faculties Therefore these cannot be nor may not be called the Common Laws of the Kingdom that is common to all but only in this sence because they are constituted with the common consent of all The third opinion is that they
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
more deeply learned in our Laws Where they say that the alteration How the Judges opinions may alter the Law of the Laws doth depend on the Judges particular opinions and reason whereby it is so much subject to mutability sure this is not altogether true in such sence as it is spoken for it is not the private opinion of one Judge that altereth the Law but it is the concurring opinion of more than one and that not only concurring in their private reason and sence as it is said but their reasons are alwayes conferred with former Judgments and either thereby strengthened or if differing from the same they must shew reason also stronger or different from the former to ground their Judgments upon And in this sort that latter Judgments should reverse former is not unusual in other Laws nor peculiar only to this of ours for saith the Civil Law Non est novum ut priores leges That the Civil Law doth allow the alteration of Laws and of Judgments ad posteriores trahantur The Civil Law hath the like rule in another place and the same hath a great Philosopher and a Learned Politician Non possunt omnes articuli singulatim aut legibus aut Senatus consultis comprehendi sed cum in aliqua causa sententia eorum manifesta est is qui jurisdictioni praeest ad similia procedere atque ita jus dicere debet In like manner concludeth a learned The opinion of a learned Father of the Church concerning the alteration of Laws and an ancient Ecclesiastical Writer concerning the alteration of Laws upon good grounds of reason He saith Ideo quia antiquiores leges ad posteriores trahi usitatum est semper quasi hoc legibus inesse credi oportet ut ad eas quoque personas pertineant quae quandoque similes sunt But some will say these are indeed rules for the alteration of Laws upon different opinions and grounds of Reason but have you any precedent that the Judges in other Laws do differ so much in their opinions and do leave their Laws so uncertain Yes surely for in the Civil Law there are many Cases of great consequence wherein the Doctors do differ in opinion and In the Civil Law the Doctors do much differ in Opinion shew each of them several reasons and authorities to uphold their sides and opinions for they differ much upon the exposition of the Rules of their Law which are drawn extended and restrain'd according to their several Opinions and Judgments the reason is rendred because it is a very hard matter to express all particulars by comprehension under a general head But where it is said that the Law dependeth upon the variable reasons of the Judges that Reason should be the ground both of the Law it self and of their Judgments upon the Law is neither strange nor unfit for we confess that the Law is grounded upon tryed and well-examined Reason which considereth what is convenient and what is inconvenient what is for the general good and what for the particular what doth concurr with the rigour of Justice and what with the moderation of Equity with many other considerable circumstances which Reason doth deliver as well to the Law-maker as to the Judge in expounding the Law But yet the Judges do not wholly and only rely on the rules of Reason in delivering the Law as the sole prop and pillar thereof although our Laws as even the Laws of Nations and all other particular and municipal Laws are deduced from it for ratio est regula aequitatis And although the praise of the Law is that the rules thereof are approved with reason as the Touch-stone to try whether the remedy of an Inconvenience be good and sound yet Reason in our Law is accompanied with other consorts and our Judges have other aids to support and strengthen their Judgments being those helps which as the Philosopher saith Reason doth use as her hand-maids for the Invention and Knowledge of other Sciences and Arts as Sense Observation Experience and Induction Of Sense to single out Notions of Observation to keep many Notions together of Experience to confer these Notions which are necessary and which not and by Induction of many particulars concurring to frame under few heads many general Conclusions As other Sciences and the perfect Professors of them have these helps so have our Law makers the same in Ordaining and our Judges in Expounding of the Laws The first which is Sense is common to all men even in all Mechanical Arts but the latter as Observation Experience and Induction are chief instruments used and applyed by our Judges in the interpretation and expounding of our Laws for after long study and practice of our Laws after What grounds the Judges do lay the Judgments upon the reading and revolving of former Judgments and of other studious labours they come to Experience and Observation out of which they frame conclusions for future Judgments which must be still like Judgments in like Cases for they may not nor do not so swerve from former Judgments that they may contrary them without there appear some manifest difference of Reason which their reading concurring with Observation and Experience can best inform them of and then upon different reasons wherein the latter may correct some slips of the former to give different Judgments is neither strange in our Law unusual in other Laws or inconvenient in either Therefore they which frame these objections of contrariety and uncertainty in the Judgments of our Common Law perchance for the most part do not conceive the Reason of those things which they condemn so much and in this they are not much to be believed nor over much to be blamed if Ignorance and not Malice be the Motive when they speak as they think not as they know And for that many think who The accusation of our Laws because they are not all written nor certainly set down think not much amiss that the chiefest defect of our Law is because it is not all written or that it is not so written that it is certain or sure not to be changed For the first there is no other answer as far as I can see to be given but that which was said by a Writer of our Laws about three hundred years since Si ob scripturae solummodo defectum leges minime censentur majoris proculdubio robur authoritatis ipsis legibus videntur accommodare scripturae quà m vel ratio statuentis vel decernentis aequitas Leges vero jura regni scripto universaliter concludi nostris temporibus omnino quidem impossibile est cùm propter scribentium ignorantiam tum propter earum multitudinem confusam It is confessed therefore that they are not all Impossible that all the Law should be written written and acknowledged that it is impossible they should be all written And herein have we for that part of the Common Law which is generally