to go a nearer way than is to be found is as the proverb is but the next way about for though it be true that the last Judged Cases are most in force and the former many times abrogated or altered yet the old Cases give grounds of Law unto the new and by perusing both the differences of Reasons which make the one firm and the other to fail are best discerned So that surely there is no humane No Study requires more the reading of old and new Authors than doth our Law science which requireth more the revolution of old and new the conference of Precedent and Subsequent matters and in conclusion that exacteth more the Study of the whole body of that science than doth the intire Study of the whole volumes of our Law to make a man to be a perfect Lawyer therefore whether this Compendious digesting our Law into Method be profitable necessary or hurtful to the Students thereof though I must confess I do much affect Method as holding it a principal light of Learning yet as I said before I must leave the Censure thereof unto the Oracles of the Law But if any man will be desirous to follow a method in the Study of the Law or a method for his Memory when he hath studied it he might by distinguishing aright such Alphabetical Distinguishing of Alphabetical Titles a help only for Memory Titles as are dispersed in Fitzherbert Brook and Statham their Abridgments find for his private studies and use a far more orderly and profitable form than the reading of these Books according to A B C do admit Yet this as the rest is spoken under correction of better Judgment Under this head of want of Method Another objection under this head against our Laws is comprehended another objection which some make and find fault withall That our Pleaders use no Method Eloquence or Art in their Pleadings If they mean the Pleadings which are entred in the Rolls had they once tried some tickle points of exception as perchance others have done to their charge and peril they would be of another opinion and it may be then they would complain of the contrary that in the rules and directions for Defences Pleadings in Rolls and at the Bar not Ciceronian but distinct and significant enough Traverses Confessions and Avoidances there are too nice differences and distinctions sometimes exacted If they intend the Pleading and Arguments at the Barr it is true that for Form they use neither Ciceronian Orations nor Syllogistical Arguments in Mood and Figure but yet for matter they do smell as Phocion objected to Demosthenes Orations of the Candle most commonly in savouring of great pains taken with exact quotation of Books and Judgments Neither should there be expected Eloquent invectives or insinuations not fit for the pleaders of Law in such Arguments elegant Forms of Speech such as should tend to the commending or dispraising of the parties as the old Orators Isocrates and his successors were wont And if any use this as some do a little of this Eloquence is too much For Syllogisms indeed they use them not neither are they needful in this Art or kind of Arguing but as they are fittest for the Schools and Universities so if there were need of them there is no doubt but most of their Arguments or Pleadings at the Bar might by Scholars be reduced into Syllogisms though then perchance Syllogisms fittest for the Universities and Schools the concurring reasons of the Law might be made more intricate and as hard to be understood as Aristotles Acromantica especially of such as are not Logicians Now to the last objection against The last objection against our Laws our Laws that they have not fundamental Maxims which are universally true and that the Judges private opinions do usually alter the Laws and so leave it alwayes in uncertainty For the first concerning Maxims or certain Foundations which they suppose are not in our Laws They which read and understand the Law shall find that there are many received Many rules received in our Law without any contradiction opinions and Rules in the Law whereof scarce any contradiction hath been of Opinion much less of Judgment as amongst the rest these of Inheritances That no land can by Inheritance lineally ascend That the Heirs of the part of the Father are to be preferred before the Heirs of the part of the Mother That of Inheritances descended by the Mother the Heirs of the part of the Father cannot inherit and so of the other side With many other such Rules infallible and unchangeable in the Law whereof divers are collected by Sainct German in his first book And the grounds or maxims are so certain concerning some of the noblest parts of the Law viz. about the Inheritances and Escheats that the Lord Chief Justice Coke affirmeth who is best able to prove his assertion he found not in all the time he studied the Law Ne duas quidem adverti quaestiones de jure hereditatum de terrarum ligitima confiscatione sive ut loquantur escaeta aliisque consimilibus But howsoever this opinion stands It is most sure that there are infinite other Rules and Positions in the Law which admit no alteration or question To which it is usually replied It is true that there are many such Rules and Positions in the Common Law which remain still firm and are not contradicted yet they are not Maxims nor That the positive rules of our law may be in some sort reckoned as Maxims deserve not that title as other Arts have and are allowed them The answer is that these positive Rules which are certainly set down and determined for infallible may without any great errour be intitled Maxims of the Law or at least held in the nature of them for authority if not for method For in any Art as to instance in Geometry let a proposition or theoreme be once infallibly demonstrated by principles the Mathematician who made this demonstration upon infallible tokens of truth may not unfitly call his demonstration a Maxime or Principle in respect of authority though not of method as was spoken before the like may be said of our infallible positions and demonstrations in the Common Law whereof there are very many howsoever some conceive the contrary To shape some answer unto the last most usual effectual objection made against our Laws that is that the Judges private opinions and reason do usually alter the Laws and so it is left alwaies in a Labyrinth of uncertainty Although my judgment in the Laws being so slender is not sufficient to answer so important an objection tending so much to the disgrace of our Laws and indeed to the great scandal of the Justice of this Realm the execution whereof dependeth most on these Judgments supposed to be so uncertain yet I will be bold to speak what I conceive leaving the more full answer hereof to them that are much
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
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