CAP. I.

FOrasmuch as the Exercise of all such as enterprise the Pro­fession, and doe intermeddle with the Knowledge of the Lawes of this Realme, consi­steth, 1, either in the obtai­ning, study, or specusation thereof. 2, Or in the practice, prosecution, or direction. 3, Or in the full and fi­nall decision and determination of causes therein called into question: behoovefull it were (as mee seemeth) for such as have already entertained a love to that faculty, and covet to contemplate with their inward eye the expresse and perfect Image of an English Lawyer, to view each of these in their particular charge and duty, and therewithall to consider what things were requisite, and what course were most convenient to be holden for the [Page 2]better and more full accomplishment of that which is, and must be expected. And as the per­sons whom our speech concerneth, and whose charge we have here briefely touched, are three in number, The Student, the Practizer, and the Iudge: (For as touching the Pronothory or Clark, and the Attorney, they are rather Ministers to follow others, then Managers to direct:) So will the matters incident to every of their duties yeeld us a threefold Treatise, and give us large scope of Discourse in the prosecuting of such things as are requisite and incident unto the same.

And first as touching the Student, & his specula­tive search of our English Laws (w^ch is his indea­vour and study) as it is in order formost, and by Na­ture the ground of the proceedings of both the other, being that indeed without the which the rest cannot subfist. Reason in this point requireth, that due consideration, and carefull forethought should be had for the obtaining and triall of those things which are esteemed as Viatica necessaria, needfull implements behoovefull in the person of him that shall undertake to deale therewith. Authors which have written Institutions for the better information and direction of the learner, have required at the hands of such their Auditors and followers as were to be instructed; these three things, Nature, Arte, and Exercise or Vse, each of w^ch they would so have, & indeed so ought to be linked to other, that seldome hath bin found per­fection in any one person in whom all these three [Page 3]have not bin conjoyn'd: For Nature (though of her selfe excellent) yet without Art or Exercise is as the Gold in the drosse, or as the precious stone taken out of the bowels of the earth, rude, and unpolished: Art without Nature, bare, barren, and defective (as being indeed nothing else but an observation of Nature) And both without Ex­ercise, voide of fruit: Nature resembleth the soile; Arte or Method whereby wee are directed, the Husbandman; Precepts or Institutions in the Science which we meane to professe, are as the seeds, which industry and exercise doe bring unto growth, ripenes & perfection: so that Sane Beatus, dijs (que) acceptus est, cui Deus ista omnia tribuit. But si­thence that division w^ch consisteth of two parts is holden most Artficiall, all these three (as me see­meth) may aptly be drawne and reduced into two originall Branches. 1 The one concerning the Qua­lities wherewith it is convenient our Student should be adorned before his intended enterprise attempted, and with the which he might be ready furnished to set upon the same. 2 The other disco­vering the manner, method, and direction of the course of our study once entred, the meanes of furtherance thereof, and how, and in what manner to hold on therein without intermission untill the wished fruit, and expected end shall bee ob­tained.

In the former we shall include Nature and such other habiliments as shall bee required for the full furnishing and adorning thereof.

In the latter, Arte, Exercise, 2 and other inci­dents [Page 4]and adherents unto the same.

Concerning therefore the consideration of those former qualities that are to be before had, and obtained, Philosophers led by the rule of rea­son have distinguished the transitory gifts that God hath bestowed on us in this life, to be either Bona animi, bona corporis, or bona fortunae. Qualities either resident in us, 1 or externall benefits bestow­ed upon us. Those which are inherent in us, con­cerne either our mindes or our bodies, which good gifts of our mindes are either Naturall given by God unto us, without our labour bred toge­ther with us, and within us from our Cradles, growing and increasing with our age, as first sharp­nesse, pregnancy, and dexterity of wit: Secondly, Sound and exquisite memory: Thirdly, ready, copi­ous, and sweet deliverie of our words. 2 Or gotten and gained by long industry and travell, grown to a perfit habit, either first illuminating our knowledges, as the Sciences Liberall, and other the speculative vertues of the minde: Or else secondly directing our lives and conversations as the vertues Morall re­posed in our wills.

CAP. II.

TO discourse therefore of these particu­lars (I mean principally the gifts of the minde) in such order as is before speci­fied. The first and chiefest Naturall [Page 5]gift is sharpnesse, and dexterity of wit, the excellen­cy whereof surpassing all praise, needeth no com­mendation, being the thing indeed without which nothing can be throughly fifted as it should bee, or sufficiently set forth as it ought: but to speake more particularly thereof, and for the purpose in hand, none can well denie that doe consider the depth of knowledge reposed in the Lawes of this Realme: none I say can deny, which doe consider how many cases of much confor­mity, and resemblance doe daily happen, wherein neverthelesse dexterity of wit upon some circum­stance of matter, espieth a difference: None can deny, which doe consider that many in the Patro­nage and defence of causes, are oftentimes pressed upon the sudden, presently to reply to the adver­saries unexpected objections, (which effect Promptnesse and readinesse of wit onely worketh:) but that the excellency and dexterity thereof were almost alone sufficient to make a ready and prest Lawyer; for it behooveth the Lawyer with a quicke conceit to comprehend the cause of his Client once opened, throughly to understand the drifts of his Adversaries reasons at the first urged, readily both to invent, and fitly to apply his pro­vided proofes and arguments to the point in que­stion: all which are the effects of an excellent wit, and with the which we doe so much desire our learned Lawyer should be adorned.

The consideration therefore of wit, or of the light of humane understanding which Almighty God hath given unto man, whereby hee excelleth [Page 6]all other living creatures, may bee considered of us by the view of two severall faculties, or sundry operations of our minde; 1 the one for distinction sake may bee called Apprehension, 2 and the other Iudgement (not that the minde is diverse, or mani­fold, but that these are the divers affections, and proper passions of one and the selfe same cause.) The first is the quick, 1 speedy, and lively vigour, the ready ability of our understanding, and as it were the hand by which our minde taketh hold of the knowledge of things proposed, being indeed the very same the Latines call Ingenij acumen. The other (before called Iudgement) is the faculty whereby we doe as it were give sentence of the thing conceived, 2 and censure our owne understan­ding concerning the same. And as unto the first may be attributed (as the true ensigne and peculi­ar qualitie thereof) Sharpnesse; So from the other, which is Iudgement, in like manner followeth (the proper qualitie wherewith it is invested) Sound­nesse; of which it is evident (to speake briefly) that the one is the sharpnes of conceit, the other is the soundnesse of conceit; resembling and alluding to that Philosophicall distinction, Intellectus agens, and intellectus passibilis, scu possibilis. And as these ope­rations of the minde are in duty severall; so are they for the most part sunderly and severally di­stributed by God unto men; not that the one can be wholly, and alone without the other, but that the excellency of the one is seldome setled, and contained in one person with the excellency of the other, whereof daily observation may yeeld abundant examples.

The Iudgement of Plato touching his two Dis­ciples, Aristotle and Theophrastus, was grounded upon the diversitie of their naturall gifts, in this respect the one surmounted in sharpnesse of un­derstanding, namely Aristotle; The other (though that way inferiour) yet every way comparable in sharpnesse of Iudgement.

There lived at one time in the Common-weale of Athens two notable Orators, Demosthenes and Demades: the one through his care, premeditation, and soundnesse of Iudgement, by speech to please the humour of the people, was a man renowned. The other, namely Demades for his quicknesse of wit, and ready utterance upon the sudden, most excellent.

There were likewise wont to come in­to the Counsell Chamber of the said City, at one the selfe-same season, two famous Coun­fellors, Aristides for his sound counsell great­ly esteemed, and Themistocles for his sharpe and witty policies highly regarded. At one time there were in the field two famous Captaines, each against other in a quarrell, which concerned either the flourishing, or the downfall of both their States and Common-weales, Hannibal the Carthaginian, and Quint us Fabius Maximus the Roman, in which their conflicts the Carthaginian was not more commended for inventing a Stra­tagem, wherein he excelled, then was the Roman reverenced for staid and advised Iudgement in pre­venting the same, wherein he surpassed: The one of them was not more wilely, then the other wa­ry; [Page 8]But thus much of the Heathen. In the Church of God, and as concerning the writings of ancient Latine Doctors, there is found in the stile of Au­gustine an excellent and peculiar sharpnesse: In the books of Ambrose & Ierome a plain, full, and fa­miliar soundnesse, and Bernard addeth to both a delectable sweetnesse. Among the Schoolemen, who racked reason as farre as it would reach, one man in one age for his sharpnesse of wit was called Subtilis Doctor; and another neere the same time for his soundnesse of Iudgement, Doctor Angelicus. But to come to the Lawes of the Land, and to exē ­plifie our discourse in our owne faculty (purpose­ly refraining to speake or publish the excellent gifts of many famous men now living in this pro­fession) let us call to our considerations two nota­ble Ornaments of one Bench or Court, of one time, of reverend remembrance, and now both deceased, S^r Anthony Browne, and S^r Iames Dyer Knights: both having beene Chiefe in their places of Iustice. In the one did shine an incomparable sharpnesse of wit, and in the other was found in a manner an irrefragrable soundnesse of Iudgement. But to leave examples, and to descend to a subdi­vision, we are to note, that sharpnesse of wit is a­gaine observed by two properties, that is to say, Quicknesse of capacity, and readinesse of discourse, for Ingenij acumen non solùm concipit, sed discutit. And yet these qualities are likewise by God often­times sunderly disposed; for some men there are which can of themselves soone conceive any difficulty by others proposed in speech or wri­ting; [Page 9]but they are not also indowed with the na­rall gift of promptnesse of discourse and argu­ment; And, some others on the contrary are ex­cellently gifted for Oratory or discussion, but de­fective, and come farre short of others in the for­mer property, I meane, in mentall conception.

And yet though a Student of the Law bee by nature unfurnished with these gifts of the minde aforesaid, he must not be disheartened, but rather incouraged; which incouragement may take good ground;

First, upon consideration with himselfe, that seldome is seene such excellency of quick capaci­ty in any one person unmated with the blemish of ranging lightnesse and instabilitie: That the more fertile the soyle is, the more prone it is to beare and bring forth (without painefull manurance) unprofitable, and sometime most noysome weeds; that as waxe is apt to receive whatsoever impression, so is it apt easily againe to loose it, and to be new framed into whatsoever fashion; where on the contrary part the form which is en­graven in Marble is as hardly worne out as it was with much labour imprinted: for quicke wits (saith one) are apt to take, unapt to keepe, soone hot, soone cold, more apt to enter speedily, then able to pierce farre, like edges of sharpe tooles, soone turned; For we may finde true by experi­ence, that among a number of quicke wits in youth, few be found in the end either very for­tunate for themselves, or very profitable to serve [Page 10]the Common-wealth; such was Hermogenes the Rhetoritian, who (as it is written) being in manner a Child but eighteene yeares old, compiled an excellent Treatise of Rhetorique savouring more of Iudgement then is commonly found in that age; but afterward attaining to the yeares of 28. hee became madd and utterly forgot all things.

Secondly, the mindes of Students are incou­raged, and their wits consequetly increased, as well by due commendation given them for their good endeavour, as also by commemoration of the utility, profit, and excellency of the things they covet to obtaine. Touching the first of these well saith Aristotle, Adolescentiam gloriae studio duci. Wherefore to be short, and to speake of this in a word, what a spurre Praise is to pricke forth the minde in every good attempt, is seene and perceived even in bruit beasts. The Hound hunteth best when he is incouraged with the cry of the Huntsman; that Hauke is made more ea­ger to pursue her prey, to whom the Faulkner hath used to impart some part of the prey taken: But what course or tenor ought to bee holden herein, Plutarch giveth good instruction: Cum ex­ultant animi, reprehensionibus ad pudorem redigan­tur; cum dejecti sunt, rursus laudibus erigantur.

Touching the second, which is the commemo­ration of the thing coveted: true it is, that the consideration of the excellency thereof is a most wonderfull provocation to set forwards the due meanes with all industry which serve for the ob­taining [Page 11]of the same, which for as much as in the tract we have in hand, is the exact knowledge of the Law, a briefe narration of the necessity and utility thereof is able sufficiently to vanquish all tediousnesse of study, and all irksomenesse to be endured and borne in the obtaining thereof: So that although (by the way, and nothing out of the way) apt occasion be here offered to speake in the commendation of the Law, surpassing all praise that my poore ability can bestow upon it, yet let it suffice somewhat to have said herein, and ne­verthelesse no more than another hath spoken in the like kinde many hundred yeares agoe; Iuris­prudentia sine. controversia, & magna est, & latè pa­tet, & ad multos pertinet, & summo in honore semper fuit, & clarissimi Cives ei studio, & semper praefue­runt, & etiam hodiè praesunt.

CAP. III.

THe next naturall gift to be consi­dered of, is Soundnesse of Memo­ry, which is the receptacle wher­in is reposed and laid up what­soever things the Vnderstanding hath apprehended and judged worthy of receipt or entertainment: for what doth it profit with great labour, dexterity, and industry to get together, when the thing gotten is not carefully kept and preserved, but loosely let goe, or negligently lost? What booteth it to reade much, which is wearinesse to the flesh; to meditate often, which is a burthen to the minde; to learne daily with encrease of knowledge, when as the matter learned is to seeke, at that time e­specially when we have most need of the use ther­of? Memory therefore is the Chest of an inesti­mable treasure, given from God for the preser­vation of all kinde of knowledge: it is as Plutarch saith, the store-house of all our understanding; and as Plato saith, Mater Musarum, the Mother of [Page 13]the Muses: as Aristotle saith, it is the guide of our experience, and the ground-worke of all our wisedome, for that fore-passed experiences cal­led to remembrance doe ingender advised cir­cumspection, and are able to direct all our future atchievements through the consideration of fore­passed events. Tully saith it is Signatarum rerum in mente vestigium, the character of things imprinted in our minde. S. Augustine (as it seemeth) ravished with the contemplation of this wonderfull facul­tie, useth these words thereof, Omnia recipit reco­lenda cum opus est, & retractanda grandis memoriae recessus, ac nescio quid secreti, atque ineffabilis sinus ejus, cum omnia suis quae (que) foribus intrant adeam, & in eam reponuntur: Memory is a store-house infi­nitely capable, and can never be overfilled, wher­in by the most cunning Work-master of Nature are hoorded up all kindes of acts and accidents that either the outward senses have perceived, or the inward understanding conceived; wherein things of like kinde and quality, as in a large trea­sury, are orderly composed and laid up together by themselves in certaine, sure, and seposed cells, from thence tob e drawne and deduced whereso­ever fit and apt occasion is offered; which Art of Memory doth manifest by this or the like instan­ces ensuing: for when wee doe call to minde any one particular, the same so remembred doth for the most part bring to light his like, so that wee doe remember the one by the commemoration oftentimes of the other: of the which one hath [Page 14]written very well in this manner; In memoriaom­nia ita collocata & ordinata sunt, ut unumquodque se­paratim, & cuncta confertim, & singula ordinatim exposcere & digerere valeamus. The truth is, that some things there are which we can remember ca­sily and with great facility, some other things with more difficulty, as hoorded up in the bot­tome of that Chest, and doe require more search (as the rumaging of wares in the bulke of a ship) to be unladen and brought to light; some things doe offer themselves, and some other things af­ter long seeking are hardly found: And thus much may here suffice to have been written concerning the effects of humane Memory.

But for the better and deeper discovery of the nature thereof, (for then we shall the better ad­dresse our selves to the use of Memory, when we doe truly comprehend the kindes, causes, and na­ture of the same) we are to conceive that the lear­ned who have written hereof have observed a double faculty of Memory; the one concerning things comprehended by the outward senses, and therefore called by them Memory Sensative: The other concerning things conceived by the Vnderstanding and Power of wit, and therefore called Intellective Memory. The first, namely Sensative Memory is common to Man and many other living Creatures, resulting from the sense: Hence it is that the Horse knoweth and remem­breth theway wherein hee hath beene of ten tra­vailed, [Page 15]vailed, many times better then his Rider; The Dog after many yeares absence can call to me­mory his Master, and by fawning upon him re­nue his old acquaintance: The fowles of the ayre, how farre so ever they flie can readily re­turne to their Nests, by Memory of the place where their young are reposed: The Bee can re­sort to his owne Hive, and in the Hive to his pro­per hole; and the little Ant retire to her Denne whence she first issued, neither forgoing nor for­getting it at her returne, with innumerable oc­currences of like nature, all which are effected by the Art and operation of Memory Sensative.

Memory Intellective followeth the use of reasō and therefore is found in no other Creature then Man, which is indued with the faculty of reason. And whether, and in what manner this kinde of Memory doth differ from the Vnderstanding it selfe, I doe remit to the Philosophers, to the contemplation of whose learned discourses I doe commit the curious desire of the Reader that seeketh farther satisfaction herein.

But to proceed: as there is a twofold Memory, Sensative and Intellective, as hath beene said, so is there also a double operation of the Memory Intellective: The one is called Actus memorandi, the other Actus reminiscendi. The first of these is the representation of things past, as if they were still present, representing the Image of things forepassed in the same manner as if they were [Page 16]now actually & really present. Actus reminiscendi is as it were akinde of discourse of Memory; for as before was said of understanding, that there is one operation to conceive and comprehend, and another operation to inferre, collect and dis­course thereupon, and to draw conclusions from a thing conceived to another thing concealed, and to extract out of things knowne the knowledge of things unknowne, so is it likewise in these ope­rations of Memory, the one doth remember the other, viz. Actus reminiscendi, out of one thing re­membred discovereth another thing in manner lost and forgotten: so that the one draweth the other as the severall linkes of a Chaine draw and depend one upon another: Examples will make it manifest. If a man doe relate unto me a matter done in time forepassed in his and my presence, and with our privities, if I doe remember the same, and thereby doe acknowledge the thing to be true, for that the same is now represented un­to me by the Act of Memory, as if it were really present, this is called Actus memorandi: But if I have forgotten it, and he bring me in minde of it by quickning and reviving my Memory by the circumstances of time, place, company, or such like other occurrences, and by that meanes at length I come to repaire that decay of Memory, this is called Actus reminiscendi; so that the last mentioned operation may aptly bee called the Discourse of Memory.

The objects of Memory are things passed,Objects of Memory. as aristotle recounteth, Memoria est rerum praeterita­rum. And as hope is of things to come, sense and understanding of things that are present; so Me­morie is employed and worketh upon things past: And thus much shortly by the way of a Philoso­phicall discourse (rudi Minerva) touching Me­morie.

Nour that out of these things thus knowne we may make some use for the better establishing and encrease of the students Memory, and to teach as it were a true Art Memorative, not out of forraigne precepts, or by the helpe of Imagi­nary places, but out of the nature of Memory it selfe, which may be tanquam vivida praecepta; I shall exhibite to your consideration some few re­markeable circumstances, and so much the rather, by how much the more this facultie (although ex­cellent in it selfe) yet is the sooner lost, and with the losse thereof, it maketh all our studies but lost labours. For true it it is, and too true which Se­neca affirmeth, speaking of Memory, Res est ex om­nibus partibus animi maximè delicata, & fragilis, in quam primum senectus incurrit: The most deli­cate and fraile part of our Minde, the which old Age doth first assault. And as Pliny saith, Nec quicquam aquè fragile in hominum vita, morborum & casus injurias, at (que) etiam metus sentiens; Nothing so fading in all Mans life, subject to decay by the injuries of sicknesse, chances and feares: therefore for the better accomplishment of our intended purposes; let us first consider the instrument or [Page 18]organ, which the qualities or faculties of the mind or soule do worke withall in this life, which is the body; for the body is vehiculum animae, the chariot, wagon, or ship of the soule, if not the sepulchre thereof, as Plato affirmed, [...], and the aptnesse of the instrument is a great fur­therance to the sacility of the workmanship, and to the beauty of the worke. Mans body being composed of elementall qualities requireth in the perfection thereof a temperature of humors, which also consisteth in the temperate disposition of heate and moisture, for that in humido, & calido consistit vita, and hereby it is made a more apt in­strument and organ for the operation of the pow­ers of the soule, and so consequently of Memorie, naturall moisture must not abound as in children, whose memory is therefore in tender yeeres most commonly not of the best. And againe, naturall moisture must not on the other side be almost in a manner exhausted, as in old men, whose Memo­rie is therefore worne, but it must hold the gol­den meane, for fluide things are apt to receive but cannot long retaine any impression, by reason of overmuch moisture, which makes the impressi­on loose, and at length utterly lost; And aride and drythings can receive no impression for want of moisture, the one receiveth but retaineth not, the other receiveth not at all; wherefore as this golden meane must be preserved in the tempera­ture of moisture, so must it bee held indifferent betweene cold and heat, nothing so hurtfull to Memory as overmuch cold, nothing more harmful [Page 19]to Memory then overmuch heate, the which how to mitigate in the disposition of the body I leave to Physitians by medicine and diet; ānd therefore I resort to precepts agreeable and correspondent to the nature of Memory without medicine.

First therefore, whosoever desireth to remem­ber that science, facultie or proposition which he learneth or readeth, let him bee well assured that he first throughly understand and apprehend the same with some kinde of delight, for no man did ever remember that perfectly, which hee under­stood not throughly; in as much as the well un­derstanding is the Character, and seale of the thing understood, which the Memory receiveth imprinted in her. Things are then said to bee throughly understood, when the effects are known by their cause, tùm enim scimus, cùm per cau­sas cognoscimus, as saith aristotle; or when the cause is known by the effects, when the reasons thereof are throughly apprehended, and the consequents truly discerned, namely, when the judiciall part of our understanding resteth satisfied, and giveth a sentence within our selfe, that it doth fully com­prehend. This perfect understanding must bee joyned (as I said) with delight, which dilateth the vitall spirits, and quickneth Memory; whereas things conceived in contrary passions can hardly be retained long through the perturbations oc­casioned therby.

Vnderstanding with delight is drawne from the excellency of the knowledge apprchended, from the rarenesse, strangenesse, or else of the [Page 20]good conformitie and coherence thereof, with other things, or out of a naturall inclination wee have thereunto; For it is true, Quae magna aestima­mus magis memoriae infigimus, therefore first covet to understand well and with delight, and you shall remember the better.

The next precept is, 2 often to meditate upon the thing so understood with a diligent disquisi­tion and search through all the parts thereof, for whatsoever is by perfect understāding imprinted in the Memory, the same is more deeply ingra­ven by meditation therein; and as spice swallow­ed doth neither give taste to the tongue, nor heat to the stomacke, but when it is first broken and chewed in the mouth; so, much reading doth not increase learning except it be whetted and sharp­ned with meditation, which is the chewing of the cud after the mindes repast. And hereof it is that Aristotle affirmeth that meditatio confirmat memo­riam, and hence springeth the Proverbe, that it hath beene seldome seene that ever an old man forgot that place where hee had hidden his gold, for where our treasure is, there is our heart and meditation also.

The third consideration is to use and keepe a method, 3 and to analyze the matter with all his parts and incidents which wee doe desire to re­member, a course which notably establisheth, confirmeth, and strengthneth Memory. For in as much as Method consisteth much of division, that saying is very true which the glossE hath ob­served, and Bracton out of the same transumed, [Page 21] Divisio sive partitio triplicem operatur effectum; primò enim animum legentis incitat, secundò mentem intelligentiae praeparat, & tertiò memoriam artificiosè reformat.

The fourth consideration or precept is, 4 to es­chew and avoyd the troubling and incumbring the Minde at one time with sundry different and uncohaerent matters, except it be done with much moderation, and at set times and houres, for re­creation onely, and for the reviving of our under­standing with variety, when it beginneth other­wise to be weakned, dulled or cloyed: so shall our Memory not bee pestered with manifold impres­sions; for when it seeketh to apprehend the one, it often and most commonly doth lose the other, according to the usuall and true saying, ‘Plurimis intentus minus est ad singula sensus.’

The fift precept is daily to exercise memory, 5 that is, daily to commit things to the faithfull cu­stody of our Memory, and after a time passed, most curiously and carefully to recall the same to an account thereof, and to render backe againe the things so received. And this kind of exercise maketh Memory very ready, and doth much in­crease the same; For Quintilian hath very well no­ted of Memory, that Nihil aequè augetur cura, vel negligentia intercidit; Nothing is so much encrea­sed by diligence and care had thereof as Memory, and then the same nothing sooner lost by negli­gence thereof. As touching a true use hereof, we are to consider a distinction of things to bee re­membred; for either we doe desire to remem­ber [Page 22]the matter or substance onely which in all kinde of learning is to be observed, or else we al­so desire to commit to Memory the frame and compact of the words also, as when we doe covet a penned Oration, set Sermon or Speech.

As touching the first, as the morning is a fit time to study, so is it also to commit matters of substance to Memory; for as the Memory is said to be Musarum Mater, so is Aurora Musarum ami­ca, for then are our bodies discharged of all super­fluous burthens that may hinder our studies and meditations, and our spirits are more quicke af­ter their received rest.

As concerning the second, many doe not un­fruitfully commit their penned orations, set spee­ches, laboured Sermons, and such like which they covet verbally to pronounce, to Memory in the evening, being silent and quiet, and to give it harbour and lodging with them overnight, that they may more readily recount the same in the morning. And thus much touching these few, short, easie and familiar precepts. and observati­ons touching that operation which we have called Actus Memorandi.

Now as touching the other called Actus remi­niscendi, the same is incited by divers circumstan­ces, as of the place, whereof Aristotle saith, à locis videntur reminisci aliquando; So likewise of the persons, times, the meanner of doing, or as some other memorable accidents subject to the sense, not ordinary or accustomed, doe occasion: for things strange and unfrequented are best held in [Page 23]Memory, because they were first received of the Memory with admiration, as a new welcome guest into an Inne or lodging, about the enter­tainment and good usage of whom there is ordi­narily most care and industry bestowed and con­ferred; And therefore no doubt, and upon this reason, those things which children doe first ap­prehend with an admiration and delight, they do retaine best and hold when they come to age. To these considerations there are those which do adde the precepts of Art Memorative, so often treated of by such as have written of Oratory, by appointing certaine places, conceived and imagi­ned unto themselves, which being carefully dis­posed in convenient order, they doe fixe there­upon those things which they would remember in apprehension, and by consideration thereof do call to minde such forepassed matters in due and direct order, and so with much facility doe and can recount the same, upon which places so in their imagination fixed and apt for the matter in hand, it behooveth that they cast their carefull consideration and frequent meditation.

CAP. IIII.

THe third gift given from God by the course of nature unto Mankinde, wherewith the Stu­dent of the Lawes ought to be adorned, is a prompt and ready delivery by way of speech, of those things which are concei­ved in the minde, which is as it were the hand that doth communicate the former gifts spoken of, and participate unto others; and is that which the excellent Romane Oratour affirmeth to bee bene constitutae Civitatis quasi Alumna quaedam, I meane not an elaborate curiosity of words, or an affectation of phrase, which is practised by none, and wherewith none are mooved, but such as are of vulgar judgement. But that I meane which the same Author commendeth, Ea dicendi facultas quae est plena dignitatis, grandis verbis, sapiens senten­tijs, accommodata causae, genere toto gravis: for of him that is adorned therewith saith he, hujus enim est in dando consilio de maximis rebus cum dignitate explicata sententia, ejusdem etiam languentis populi incitatio & effrenati moderatio: That kinde of elo­quence which is full of dignity, ever worth hear­ing, in speech pure without affectation, sententi­ous and discreet, apt, answerable and agreeable to the matter in hand, and throughout beautified [Page 25]with gravity: Of this required quality let us also consider some advertisements (as we have done of the former).

Eloquution doth consist of three things, first,Eloquntion. of the voyce as the instrument, 2, the words that are the subject; 3, the manner of doing, which is the forme of delivery. In the voyce are required two principall qualities, soundnesse and sweet­ness: this thing the same Oratour expresseth thus, Cum orationis judicem vocem habeamus, in voce au­tem duo sequamur, ut clara sit, ut suavis sit, utrum (que) omnino à natura petendum est, verum alterum exerci­tatio augebit, alterum imitatio praeesse loquentium & leviter: litterae ne (que) oppressae sint ne aut obscurum, neque nimium expressae ut putidum: In the words two things are required, purity and propertie;

First purity, that is, 1 that neither the words bee old or outworne, neither newfangled or affected, in the which non solumrusticam asperitatèm, sed eti­am peregrinam insolentiam fugere discamus, that we may learne to eschew not onely forlorne rusticity, but all new affected outlandish vanity.

Secondly, property, that is, 2 they are to bee made apt for the matter in hand, having few translations, Metaphors or borrowed speeches, but where they are needfull and doe illustrate.

In the third, 3 the manner of composition of the speech and delivery, there are also two things considerable; first, perpetuity, secondly, exorna­tion.

Our speech is made perspicuous if our words and sentences be not doubtfull in the compositiō, [Page 26]if they be free from Amphibology and ambigu­ous reference, if they be cleere of idle Tautology and vaine repetition, if our periods and clauses be not over long, nor interlaced with too many Parentheses; Lastly, if the copiousnesse and super­abundance of words unnecessary hinder not the apprehension of the hearer, a sault whereinto many fall, that neverthelesse doe thinke they doe exceeding well.

Secondly, 2 exornation is to bee performed by amplifications, extenuations, and such other Rhe­toricall precepts as that Art teacheth, unto the which for this point I doe referre you; onely here giving you this caution, that the exornation ex­ceed not the quality of the cause, ne materiam su­peret opus, for as it is vaine to overguilde excellent Marble with gold, so gold beseemeth not everie materiall; And many things shall and must passe the Lawyers pen and speech, which are facundiae [...] capacia cum sint tantum comenta doceri. And having thus much said of these three gifts which proceed from God by the gift of nature, I will conclude with that saying of Tully which doth comprehend all three, Aniini & ingenij celeres [...]idem motus esse debent, qui ad excogitandum acuti, ad explicandum ornandum (que) sint uberes, & ad memo­ri [...] [...]r [...] & diuturni.

CAP. V.

THus with as convenient brevi­tie and perspicuity as I could have I declared those natural abilities that I wish him that shall undertake the study of the Law to bee furnished withall. There doth now far­ther remaine a consideration of those qualities that are acquired by industry, and not ingrafted by nature, wherewith it will (doublesse) be be­hoovfull also, that our student should be adorned, Those acquired qualities whereof I speake, are of two sorts, some of them perfecting our under­standing, and inriching our knowledge, and o­thers rectifying our wills, and directing our be­haviours and manners. Of the first kinde are the Vertues Intellectuall. Of the second sort are the Vertues Morall.

First of all therefore let us speake in order of those Intellectuall Vertues; And let us a little fall into dispute, whether any other knowledge bee needfull for a Lawyer, save onely that of his selfe profession, I meane the knowledge of the Law; And if there be any of those intellectuall endow­ments necessary, Then, which and how many of them are needfull, and in what sense, measure and [Page 28]understanding they bee conceived and adjudged so to be behoovefull.

Some men there are which thinke that a Law­yer should not need much to bee troubled with any other learning then that which is their owne,Ob. prima. whose reasons and motives thereunto, let us pro­pose and thorowly weigh and examine the same, so that as well such as are of the one part, as of the contrary, may be thereby the better called in­to consideration.

Their first reason is drawne from experience;Ra. prima ab experientia. for it hath often hapned and appeared in every age (say they) that there have beene many excellent Lawyers within this land, of deepe judgement, great understanding, profound knowledge in their profession, of ready and apt eloquution, and yet no schollers at all; utterly ignorant of any o­ther additionall erudition, then their homebred naturall gifts. These men have beene famous in their times, have undergone great affaires, as well in the Courts of our Soveraignes, as in the Tri­bunalls, wherein they have been worthily placed, and also generally in the greatest businesse of the Kingdome and Common wealth; so that the number of these men from time to time have not beene few. Therefore if the knowledge of the Law may be gotten without other learning, what need then to bestow time in the obtaining of those Arts, when as the Grammer Schoole yeel­deth as apt Plants for this profession, as the Vni­versity.

Secondly,Ra. seenuda à subjecto juris. they say that the knowledge of the [Page 29]Law is affirmed to be Rerum divinarum humana­rumque Scientia, it dorh containe the knowledge of all divine & humane things; & therfore he that hath obtained that knowledge, hath therein com­prised, included, and contained all other know­ledges, and need not to busie himselfe farther with the search of any other, as having obtained the knowledge of the Law, which is truly stiled The Science of Sciences; for the knowledge of the Law is as large, and as ample as the materiall subject, and the matters and causes whereof it treateth, whereof contention or strife may grow, orupon which they may bee grounded: for the end and finall scope of the Law is, ut sopiantur jurgia; so ample is this subject, as all those things whereof men may have property or possession, or whereupon or concerning which injuries and wrongs may be offered or inferred.

Thirdly, they say that we should consider,Ra. tertia du­citur à diu­turnitate ju­ris. that Ars est longa, vit a brevis, the study of the Law is, multorum annorum opus, it is the worke of many yeares, the attaining whereof will waste the grea­test part of the verdour and vigour of our youth, and therefore the sooner we doe apply our selves unto the study of the Law, it will be the better for our ease; for in a long journey, hee that hath found out the shortest way, with much ease and in lesse time commeth to his journeyes end. And to conclude with the Orators words; Is autem con­cludatur in ijs quae sunt in usu Civitatum vulgari ac forensi, remotisque caeteris studijs quamvis ea sint am­pla atque praclara. In hoc une opere (ut ita dicam) [Page 30]noctes atque dies urgeatur, (What hee saith of his Oratour, these men apply to the student of our Law) Let therefore our student of the Law be concluded and compassed within the bounds of his owne profession, and exercised in things of vul­gar and ordinary use in civill causes, and all other forraigne studies being relinquished, let him bee night and day employed in this sole worke. These and the like are the allegations and arguments of those men that remove the knowledge of all forraigne Arts and Sciences liberall from the stu­dent of the Law.

But, what of the other part may be said, what reason may be produced and verified, and how these objections may be answered, let us observe; leaving all other particular enforcement to their proper and peculiar places.

First therefore,Resp. ad pri­mano object. that is very true which hath beene affirmed, Many excellent men there have beene, that by their gifts alone which nature hath bestowed upon them without other addition of Art or learning, have attained to a profound and deepe knowledge of the Lawes of this land. But to conclude thereof, that all other men may bee so exquisite by their example without farther helpe and furniture then their owne, were much like to him that would affirme, because some men by their strength have travailed a long journey on foot, therefore no other man for that purpose should need the helpe of an horse; But if those men of such naturall vigour in their foot-journey had led (as the Proverbiall speech is) their horse [Page 31]in their hand, that is, had beene assisted with the helps of other learning, they had beene much more excelsent, and attained that knowledge with more facility and certainty, for their gold oare comming out of their naturall Mine, and of their home-brood, was not sufficiently cleered of his drosse; Their speeches have wanted perspi­cuity and brevity, their arguments although deeply learned and full of excellent matter, yet have oftentimes beene tedious, confused and per­plexed, and their opinions wavering and unset­led, and could not neatly, and expeditely deliver themselves; because some men are by nature skilfull Prainters, Carvers, or excellent in any ma­nuall occupation (as some there are) therefore none should Apprentices to those trades were a wonderfull absurd allegation: Men are musicall by nature, many have good voyces which Art cannot yeeld, therefore artifi­call Musicke (which is the perfection of the na­turall) should be banished, were a strange illatiō? Although a man may goe alone, yet he were un­wise to refuse the helpe of a staffe where occasion required the use, and opportunity offered it selfe. It hath beene said by us in the former part where occasion was offered, that Art truly used is the perfection of nature; Art hath also naturall grounds, and was invented for Natures furthe­rance; For mans wisedome devised meanes out of frequent use and long experience, to ripen natures operations, by precepts; and precepts layd together have ingendered Arts. Men natu­rally [Page 32]can number, yet they have devised many wayes, by cypher, by Counters, and by other formes to assist nature, and to deale with sundry formes by the exercise of Arithmeticke, the Art of numbring, and to bring to passe strange effects far beyond the ability, nay to the marvell and astonishment of men onely holpen by the power of nature. Surely sometimes such circumstances have happened (if not often) to those men of such excellent gifts naturall without other lear­ning, wherein they have for want of good litera­ture so much beene mis-led, that they have at un­awares bewrayed themselves, ignorant even in triviall things, and exposed themselves to no small scorne and obloquy.

This hath beene anciently observed, and is ob­vious every day: but because I will lance no new sore, I will set downe what the Roman Oratour observed, speaking of such naturall excellent men of his time, let mee therefore use his words; Quid ergo hoc fieri turpius aut dici potest, quam qui hanc personam susceperit ut amicorum controversias causasque tueatur, laborantibus succurrat, aegris medi­atur, afflictos excitet, it a labi, ut alijs miserandus, alijs irridendus esse videatur. What can bee more un­seemly either to be done, or to be spoken, thē that he which sustaineth & hath taken upon him that person, as to defend the causes and controversies of his friends, to succour the oppressed, to relieve the grieved, to raise the afflicted (which are the properties as well belonging to the Lawyer, as to the Oratour) so much in small and triviall things [Page 33]to erre and be deceived, that some should hold him worthy to bee pittied, and others make him the subject of dirision; And hence is it that in our owne times so farre this matter hath beene urged, that in scorne some have called the crew of un­learned Lawyers, Doctum quoddam genus indocto­rum hominum: But to returne that reproach from whence it sprang, to the honour of the study of our Lawes be it spoken, that the Profession of our Lawes hath now, and formerly hath had great numbers of students that have had as long, and as ample institution in those sciences called liberall, as any of thē. And if I might remember old Ori­ginalls from the time of the Norman Conquest, un­till the latter dayes of King Henry the third, as well the Iudges itinerate through the Counties, as those that were sedentarie in the Kings high Courts of Iustice (which then for the most part followed his person) were men excellently skil­led in all generall good learning, as doe witnesse the works of that worthy Iudge Henry de Bracton, Henry de Bracton, Io: Britton Bish. of Hereford, Martin de Patchull Deane of Pauls. and Iohn Britton sometimes a learned Bishop of Hereford, skilfull in the Lawes of this Realme, who writ a treatise by commandement, and writ of King Edward the first, as an Institution to the stu­dy of the lawes of this Realme, serving that time. So also was Martyn de Patchull sometimes Deane of Pauls in London, of whom the said Bracton ma­keth honourable mention, together with divers other noted men of rare learning, not onely in the Lawes of this Realme, but in all forraine know­ledge fit for their places. And these men exerci­sed [Page 34]judiciall functions in the Temporall Courts of this Realme, whereof our records being & ve­tustatis & veritatis vestigia, the lively representa­tions of time and truth, and reputed the Trea­sures of the Kingdome, doe yeeld plentifull resti­mony. What should I farther commemorate the names, and revive the memories of our wor­thy Ancestors,Herle, Bere­ford, Thorpe, Finden, Bel­knapp tempo­re R. Ed. 3. Herle, Bereford, Thorpe, Finden, Bel­knap, flourishing in the victorious times of King Edward the third? Whose deepe, short, subtile, pithy and learned Law-arguments; argue more­over thus much, that they were sufficiently furni­shed in that Schoole-learning, which in those times was in most esteeme. Let me not here for­get or passe-over in silence those excellent Iudges in the raigne of King Henry the sixt, Newton, Pri­sott, Fortescue, Newton, Pri­sot, Fortescue, tempore H. 6. which man last named, was first Chauncellor to the Prince, and after chiefe Iu­stice of the Kings Bench, and was excellently lear­ned in Divinity, Philosophy, Law both Ecclesia­sticall, and the Lawes of this Realme, as the little Treatise written by him in the praise of our Lawes, in the Latine tongue, and some other Ma­nuscripts I have seene of his worke of a higher subject, doe evidently declare. But I will represse my selfe, resting in this place upon that which now is already spoken, leaving other particulari­ties untill we come to determine of other pecu­liar Sciences.

To the second objection it may well bee affir­med,Resp. ad sec. ob. that the knowledge of the Law is truly sti­led, Rerum divinarum humanarumque Scientia; and [Page 35]worthily imputed to be the Science of Sciences; and that therein lies hid the knowledge almost of every other learned science: But yet I pray con­sider, that those forraine knowledges, are not in­herent or inbred in the Lawes, but rather as a borrowed light not found there, but brought thither, and learned elsewhere by them that have adorned and polished the studies of the Lawes. For since the materiall subject of the Law is so ample (as indeed it is) containing all things that may be controverted. The study of the Lawes then must of necessity stretch out her hand, and crave to be holpen and assisted almost of all other Sciences Therefore this objection may well bee inverted against them that doe urge the same, and proveth rather that the Professor of the Lawes should be furnished with the knowledge of all good literature of most of the Sciences li­berall; for if a man may observe the use of those sciences to lie hidden in the Law, who then may better use them or observe them, then he which is already surnished with them. And if the know­ledge of the Law, doe receive ornament by those eruditions (as I think no man can denie) it shall be very expedient and well befitting the student of the Lawes, to have first familiarity and acquain­tance with them, and to bee instructed in the same.

But it may bee objected, that the Lawyer shall not need the knowledge of those Arts himselfe, but when opportunity shall be offered, and when question shall arise, wherein the Lawyer shall [Page 36]stand in need of resolution of any of those Scien­ces, he may conferre, and bee informed by the Professors of the same, to his good satisfaction, although himselfe be not expert therein. Many times there have beene (and may bee hereafter) Appeales of Mayme brought by such parties as in private fight and otherwise by violence have re­ceived maime, that is, mutilation and losse of a member of his body ferviceable for offence or defence against those parties that so have hurt them, and many times question & debate ariseth, whether the hurt so received, be to bee adjudged a Maime, yea or no? So that the Iudges are often­times enforced to conferre with Chyrurgians for their suffrage and resolution; will you therefore require your Iudges, Professors and students of the Law to be also Surgeons, or skilfull in the Art of Chyrurgery? that were altogether un­comely.

This objection is easily answered and avoyded,Resp. for first there is a great difference in this respect betweene manuall. Arts and occupations wrought by the dexterity of the hand, and those that are sciences and vertues intellectuall adorning the Minde, as are the Liberall.

The Lawes of this Realme doe appoint no o­ther trial of a Maime,Mayme. then the view of the Iudge, for a Mayme is such as for the most part is visible and subject unto sens; And therefore if upon some doubt or occasion conceived, by reason of the view, the Iudges doe desire the conference of expert Chyrurgians for the better satisfaction [Page 37]of their conscience. This is no matter of necessity to import the Iudges, but matter of discretion onely, in not being too precipitate, but rather ma­ture in their judgement, as they ought; and to shew themselves rather willing to goe onward with others, then to run alone of themselves. And herein the Iudges are not tyed to the opinion of the Chyrurgian, otherwise then hee findeth the same to be conformable and grounded upon such good and apparent reason as may yeeld full satis­faction and contentment: But when the question shal be moved w^ch. shal require informatiō of any learned science which is gotten by discourse of reason; Although in those cases the laudable courses have ever beene in our Courts of Iustice, to heare the Professors of those sciences to dis­pute and debate the matter controverted before our Tribunall and judgement seats, yet no man can deny, but it is better to draw one draught out of the pure fountaine it selfe, then to quench out thirst out of derived streames, for ‘Dulcius ex ipso fonte bibuntur aqua.’ For in every Science which doth depend upon discourse of reason, there are many fundamentall Maximes and Principalls not to bee changed in any future resolution, but rather to be received as guides to direct, which at the first will seeme harsh to such as have not beene inured unto them, and therefore it were perillous to the Iudge and Professor of the Lawes, and he shall not bee able either to receive to himselfe, or to give to others satisfaction, except hee can by his proper know­ledge [Page 38]discerne of the controversie. For we sure­ly know Non ex relatis aliorum, sed cum per causas cognoscimus, and if wee have knowledge in those sciences our selves, we shall the better apprehend and understand the reasons of those matters so disclosed by debate: And thus I leave the second objection.

To the third,Resp adter­tiam Object. last, and maine objection, this may be produced for an answer, that though true it bee Vita brevis est, ars longa, our life is short and full of calamities, and learning is a long time in getting, yet may wee not in respect of short life shut up all our endeavours for feare of an end; for therefore the Period of our life is sealed up from mans knowledge, first for that wee should bee al­wayes ready when we are called hence; Secondly, for that the feare of a knowne death should not daunt or interrupt our endeavours; Likewise the verdure of our yonger yeares is best imploied and spent in obtaining of those sciences, for then are we most apt thereunto. And as the study and practice of Morall Philosophy (as Art doth wit­nesse) is not fittest for men over yong; so likewise the study of the Law which hath his foundatiō in Morall Philosophy (both having one end gene­rall, namely, the rectifying of our manners) doth require some maturity of yeeres, and not to bee set upon by infants in yeeres, judgement, and ca­riage. And so likewise shall wee finde in a long journey, that the fairest way is better although so me what farther about, then a shorter rough way, hard to finde and difficult to keepe; and in [Page 39]the end also to answer that close or upshot drawn from Tullies Orator; I would you should like­wise remember for conclusion of this question that which he affirmeth, Non enim Causidicum ne­scio quem, nec proclamatorem aut rabulam hoc sermo­ne nostro conquirimus, sed eum virum qui primùm sit ejus Artis Antistes, &c. We seeke not hereby to institute I know not what manner of vulgar pro­fessor of the Lawes, no common blatterer or te­merist, but that man which may prove in the end an excellent and chiefe Pillar, prop and Or­nament of his profession.

CAP. VI.

HAving hitherunto proceeded in the generall,The neces­sity of the Latine Tongue in a Student of the Law. it shall bee now requisite to descend to parti­culars. And fitst of all to con­sider, whether the knowledge of the Latine Tongue, and the use of Grammar, tending to the obtaining of the same, be necessary for a Law­yer: not proposing it by way of doubt, question, or difficulty, that it should need any large dis­pute, but by way of manifestation and disquisitiō onely; for there is no man (as I suppose) that can or will deny, but that the knowledge of the La­tine tongue is right necessary for our English Lawyer: which may be, made apparent by many [Page 40]evident and eminent arguments and allegations, easily to be produced for that purpose.

First of all,Ra. prima. many of our old Statutes, and anci­ent positive Lawes were written and formed in the Latine tongue, and so doe still rest and re­maine in our Records and Bookes; as that Act called Magna Charta, Magna Charta. The great Charter of Eng­land, great indeed, not in respect of moulde, but matter, not great in quantity, but in weight and worth: Containing many the fundamentall points of our Lawes, bought with the blood of our Nobility and English Ancestors, in those troublesome times of King Iohn, and Henry his sonne. And although many of the Constitutions contained in that Charter, first introduced in part by King Henry the first, (then called for his learning Henry le beu Clarke, Hen. 1.) comming in and put­ting by his elder brother Robert of Normandy, and as it were by restitution and renovation of the old Lawes of Edward the Confessor King before the Conquest, and in tract of time sought to be enfringed, yet neverthelesse not without trouble it was afterward again both revived & enlarged first by another Charter of King Iohn, and lastly by King Henry the third his sonne in Parliament established, and sundry times afterwards by suc­ceeding Parliaments, also confirmed and com­manded to be put in due execution.

In like manner these severall Lawes of note,Stat. Marton 20. H. 3. Marlebridge Gloneester. as the Statute made at Marton Abbey in Surrey: That also made at Marlebridge, that likewise at Glou­cester, and sundry others were all originally fra­med [Page 41]in the Latine tongue in the reigne of the said Henry the thrid: Also the Acts made in the first,Westm. 1. Westm. 2. Westm. 3. certaine in the second, and the Acts made in the third Parliaments all holden at Westminster in the raigne of that victorious and renowued Prince King Edward after the Conquest surnamed the first, compiled by Parliament for the good go­vernment of this Kingdome, were written also in the Latine tongue.

Secondly,Treatises of Law in the Latine Tongue. Ra. Glanvill. Ended his dayes at Pto­lomais in the holy Land. many learned Writers have com­posed divers excellent Treatises of the Lawes of this Realme, in the Latine tongue, as namely, that ancient Treatise composed by Ranulphus de Glan­villa, a learned Iudge of this Land, who is said to have gone in person with King Richard the first in­to the holy Land, and to have ended his dayes at Ptolomais then called Acon or Acres a Maritine Towne of that Country.

I will here adjoyne the learned Treatise (and as the times then stood) I might well call and affirme the eloquent Treatise of the Common Lawes framed by Henry de Bracton a most learned Iudge of this Land,Hen. de Bra­cton. living in the latter and of the raigne of King Henry the third, and in the entrance of King Edward the first his regiment: This Treatise is replenished with many excellent sentences, fit­ly and aptly composed in Latine; and by the rea­ding of this worthy worke, the student shall truly understand not onely the conformity our Natio­nall Lawes then had with the Civill, Cannon, or Ecclesiasticall Lawes, but also shall well per­ceive what the Common Law of this our Coun­trey [Page 42]was before the making of divers Statutes which have altered the same, whereby great light may bee had, and a great helpe obtained for the better understanding and true interpretation of the same.

Likewise, there is a learned Treatise compo­sed by a learned yet unknowne Author whiles he was a Prisoner in the Fleet, and therefore the said worke or tract is called Fleta, Fleta. in the time as it seemeth of King Edward the first, and although there doe now remaine but a few Manuscript co­pies thereof, as having beene never imprinted, yet is it worthy to see the light, and for the fur­therance of the studentof the Lawes to be divul­ged, and this also was written in the Latine tongue: I might remember two Treatises, the greater, and the lesser, gathered by Radulphus de Hingham, Ra. Hinghā. sometime Chiefe Iustice of the Com­mon Pleas, whose monument yet remaineth in the Cathedrall Church, of Saint Paul in London, and written in Latine, but in corrupt language as the times then afforded.

But passing over many other in silence, I will conclude with that little Treatise made de laudi­bus legum Angliae, in praise and commendations of the Lawes of this Land by comparison with the forreigne Lawes of some other Countries devised and written in the Latine tongue by that sincere and most learned Iudge, Sir Iohn Fortes­cue Knight,Io. Fortescue. thereby to incite by many arguments the Prince, sonne and heire to King Henry the sixt, to the knowledge of the Lawes of this Country: [Page 43]it seemeth by many passages of this Treatise, that the same was contrived in the Kingdome of France, during such time as the Queene with her said sonne the Prince remained there to sollicite ayde for her husband. This Author at the writing of this Treatise was as it seemeth Chauncellor to the Prince, and afterward Chiefe Iustice of the Kings Bench: This little worke is well worthy the perusall, plentifully shewing the learning of the Author in Divinity, Philosophy, and other good literature, besides the knowledge of the Lawes of this Realme, a man I say who for the fidelity he bare to his Master, tasted of the tem­pest then stirred in the end of his time, having had both his rising and his ruine in that fatall fall of his Lord.

Thirdly,Writs ought to be framed in true and congruous Latine. all the formes of writs are and ought to be framed in the Latine tongue, and if they do containe false Latine, they are abateable, and to be defeited, and the party plaintife who pursued the same, shall bee driven to purchase a better writ, and to begin a new. For the better under­standing whereof, let mee observe something of the nature of Writs.

A Writ is the commandement of the King,Definition of a Writ. formed in Latine, directed either to some Mini­ster of his Courts; or sometime to the partie De­fendant, at the pursuite of the Plaintife, for the better administration of Iustice. This Descrip­tion concerneth all manner of writs, which as tou­ching their forme, are short and briefe; and ther­fore in Latine are called Brevia, in French Briefes [Page 44]for their shortnesse in English Writs,The Etimolo­gie. for that they are Mandates in writing. The latine Ety­mology of the name, Bracton yeeldeth thus: Brevia dicuntur (per modum Regula juris) quia rem quae est & intentionem Petentis brevitur enarrat: And yet ought they not through brevity to bee obscure, but cleare and in a compendious manner to com­prehend the matter therein contayned: They ought to be formed in words, proper & perspi­cuous, free of ambiguity, no preposterous order, no doubtfull reference, no idle repetition, no o­mission of needfull matter, and ought to bee for­med in apt, true, and congruous Latine.

Writs are in sundry manners divided,Division. (1) some­time in respect of their matter; (2) sometime in respect of their forme; (3) sometime in repect of the efficient cause; (4) and sometime againe in respect of their finall cause.

In respect of their matter, all Writs are of three kinds, that is, (1) Originall, (2) Meane Proces, (3) Iudiciall.

An Originall Writ is the Commandement of the King,Defin: An originall Writ, quid? formed in Latine, issuing out of the Chauncery, sealed with the great Seale of En­gland, contayning the cause of suite directed to a Minister of the Court to compell the defendant to appeare and answer at a day prefixed for the returne thereof.

The Originall Writ is the foundation of the suit,Etimology. and therefore is called originall, for that it is the first writ sued forth at the beginning of the suit, to bring the defendant in Court to answer.

In respect of their matter,Divisio in materiam & formam. they are divided thus; They are either (1) Reall, (2) Personall, (3) Mixt, or (4) neither, as the Appeale.

In respect of their forme, they are either of a setled and composed forme, and therefore called formata: or without a setled forme, but doe vary according to the circumstance of the cause, and called by Bracton, Brevia Magistralia; the other Brevia de cursu.

In respect of their efficient cause all these Ori­ginall Writs doe issue, as hath beene said,Cause effici­ens. out of the Chancery, which is the shop and forge where­in for the most part they are framed. The Ma­gisteriall Briefes, because they vary with the case, require a Masters hand to compose them in re­spect of skill. But the other De cursu, Writs of course, because they have a setled forme prescri­bed in an ancient booke therefore called the Regi­ster of Writs, and vary not but in mutatis mutandis: they are written by a society of Clarkes of the Chancery called therefore Cursitors: Cursitors, unde dicitur. But I pur­pose not here to make a full and liberall discourse of writs, this alone may suffice in this place, and for the matter in hand.

Fourthly, it is manifest, that all the returnes of Writs, all manner of proceedings, all Counts or Declarations of the Plaintiffes or Demaun­dants, all Pleas, defendes or exceptions of the Defendants or Tennants, either to the Iurisdicti­on of the Court, or to abate the writ, or in barre of the Action all replications thereunto by the Plaintife and demandant, all rejoynders or [Page 46]surrejoynders, all issues taken, all verdicts, demur­rers, continuances and entries of the judgements of the Court in sundry formes, according to the severall nature of the writs and actions in contro­versie: Likewise all the proceedings in criminall causes and Pleas of the Crowne which concerne life or member by way of indictment or present­ment, the Arraignment, Tryall, and Iudgements thereupon had, are entred, written, and engrossed in the Latine tongue; And therefore without the knowledge of this language, the student of the Lawes, the Practizer, and the Iudge must of necessity walke thorough a vale of darknesse and palpable ignorance in the superlative.

By this which hath beene already affirmed may easily be conceived, that Grammar being the first Liberall Sciences is very behoovfull & need­full for a Lawyer, as by sundry instances may bee made manifest in every part thereof. Grammar hath beene divided into these foure parts; Ortho­graphia, Etymologia, Syntaxis, and Prosodia.

In Orthographie, Orthogra. phia. which concernes true writing, we are taught that from the knitting together of Letters are made sillables, of sillables significa­tive words. These words are twofold, Primitive, which were composed at the first to denote and signifie this or that thing, and words derivatives drawne from those Primitives, which in writing ought to containe the radicall letters of those Pri­mitives, that thereby may be discovered and dis­cerned ithe root and of spring from whence they were drawne and deduced.

First therefore, as touching letters and sylla­bles, sometime a letter is omitted which maketh the word written, no latine at all,

In a Scine fac: the writ was abated for want of a letter, for the writ was ex insinatione, 24. E. 3.7. which is no latine, whereas it should have beene ex insinu­atione. So in a precipe quod reddat, the words were precipe quod reddat haeri; 41. E. 3.21. where it wanted a syllable and should have beene haeredi, and this writ was abated. And sometimes for placing one letter for another, as in a writ of waste, the same was ad destrictionem, whereas it should have beene ad de­structionem. So likewise an Inditement of Bur­glary was avoyded, for that it was Burgaliter, Cooke 2 part. lib. 3. whereas it should have beene burglariter, al­though no perfect, yet allowed Lawyers Latine, and an artificiall word, a word of Art.

The second was of Grammar called Etimologia, Etimologia. hath two parts, for it doth not onely concerne the derivation of words, but also the forming of words in all the principle parts of speech, as of the Nounes, Pronounes, Participles, in number, case, gender, termination, declination, & such like; but also of verbs in declination, moode, tense, nūber, person, and such like, and in these things also the Lawes of this Realme require congruity to bee observed, according to the rules of Grammar. The writ was hos breve, where it should have been hoc breve, and therefore was abated, and could not be amended; one case for another.

In a Precipe quod reddat, the writ was quas, where it should have beene quod, one gender for [Page 48]another, and therefore was abated. In a writ of Iuris vtrum, 12. H. 4.10. Fitz n. br. 466. the writ was sit where it should have beene sint, one number for another, with divers others, such like examples.

The third part of Grammer is Syntaxis or Composition of speech,Syntaxis. and hath these parts (1) the conformity betweene the verbe and the casu­all word; (2) betwene the substantive and the ad­jective; (3) betweene the Antecedent and the Relative which part hath sundry examples in the Law, and would be tedious to remember.

These things notwithstanding,Ob. prima. there doe re­maine certaine objections to be cleared; for first it may be objected that in the Courts of Iustice, the Clerks in the entring and enrolling of their Records, forme up their words in a short kind of writing by certaine abreviations, by which are knowne the words intended; And therefore in this course which is most usuall there can be but a slender observation of true Orthography.

To this I answer,Resp. that among all the Cursitors and Prothonotories, and all other Clerkes in our Courts, there is observed a briefe and short kind of writing for the better dispatch of an infinite masse of businesse in that kinde, and heape of wri­tings which they termly undergoe, yet the same is not voluntary, or at pleasure, or as every man will or shall devise, fashion, or frame unto him­selfe, but such onely vulgar, and well known both among themselves, as all other that intermeddle therewith, which tract of time hath made famili­ar from age to age by expert observation.4. H. 6.16. And [Page 49]here may I remember that almost every of our Courts of Iustice hath his severall set forme of handwriting, as the Chancery hand, conveyed in a faire forme of letter, little inferior to the print; and the Court hand somewhat distinguished in forme of letters frō the ordinary secrerary or set hand used among the vulgar, which our Aunce­stors at first invented, and ever since to great purpose have practised, thereby giving the grea­ter impression, so that it may remaine legible to posterity many hundred yeeres, as by our ancient Records, and many Monuments of Antiquity yet remaining of ancient occurrences before the Norman Conquest is evidently declared.

Secondly may be objected,Ob. seounder. that since the time that the Latine tongue was vulgarly used among the Romans, and other the Nations, that they sub­dued to that Empire (for they much endeavoured the propagation of their language) sundry new things have beene invented, whereof those anci­ent people had either no intelligence, or no use, and therefore where such things doe occurre, there doe want words proper and peculier in the Latine tongue to denote the same, and men must of necessity bee enforced either to use barbarous words farre from the purity of the Latine speech, or to invent new to expresse their meaning.

For satisfaction and full declaration whereof,Resp. we are to consider that usually in course of Law soure kind of words are caried under the colour of latine in Law proceedings; as first, the true na­tive and proper latine word if they bee found for [Page 50]the present purpose, whereof our Iudges have e­ver beene carefull,Coke lib. 10. fol. 133. as by their sundry conferences with Grammarians, and men learned concerning thetrue and naturall signification of Latine words almost every was extant in our books doe declare.

Secondly, there are words of Art in the lawes, as in other faculties.

And thirdly, certaine other words drawne from the ancient Idiome and language of our pre­decessors, the former Inhabitants of this Land, vulgarly and sufficiently knowne, which recei­ving latine formes passe in our Lawes, as felonia, felonice, Murdrum, Burglaria, Warrantia, Esnitia, pars mulier, pro sobole ex legitima uxore nata, with many others of like derivation, as mesuadgium for an house, toftum for a decayed house, gardinum for a garden, bruera for furse or heath, maromi­um for timber, [...]stardus, for nothus, a base borne childe, and the like.

And fourthly, for new invented things not known to the Ancients, new words likewise haue had their originall, as Bombardum or tormentum for a gunne, Pulvis tormentarius, for gunpowder, Stapedia for a stirrop, velvettum for velvet, and many of such like making, wherunto for better understanding we doe permit the English usuall words to be adjoyned in our latine pleadings.

Lastly,Obaertia. there remaineth this scruple, where it hath beene affirmed, that there is much respect had of the true propriety of latine words, it seem­eth nothing lesse, for these for [...]s are conceived [Page 51]in a base stile farre removed from purity of speech so that the professors of Law within this land can challenge no great commendation in this kinde.

To this is answered,Resp. that the Lawes of this Land neither doe, nor desire to affect Eloquence in the Latine tongue, for wee have no use of the speech thereof in our arguments, for as much as the Statute made 36. E. 3. cap. 15.36. E. 3.1 [...]. hath ordained that all pleadings, and all arguments and dispu­tations of Law should thenceforth be performed in the English tongue, whereas formerly as it seemeth it was put in ure in the French, remaining untill that time, as a badge of the Norman Capti­vity, whereof there is now no use but in the ar­raigning of an Assize, and an Appeale, and such French Arguments as are used for exercise in the Houses, and Societies of Court and Chancery. Neverthelesse the former usage hath still remai­ned, that is, that all proceedings Iudicial shold be entred and enrolled in the Latine tongue, so that the Latine serveth to convey to posterity our Memorialls and Records, and not our debate and speech: The Antiquity whereof, whether it first grew in respect of the use thereof, retained a­mong all Nations subject to that Empire upon like occasion even unto this day; or whether for the Majestie of that language wherein all Arts of literature are still promulged, or whether it may be reached unto the Romane Conquest of this Land, who long held it under their government, and reduced many parts thereof into Provinces, en­deavouring (as their manner was) to propagate [Page 52]their language as largely as their Empire; or whether it happened in respect our Ancestors the Brittons with good affection embraced that language, as Tacitus reporteth, I doe surcease in this place to determine.

But for farther satisfaction in this poynt, the Entries and enrollments of our Writs, Pleas, and all other our Law proceedings are neither base, abject, or horrid, as hath beene imported; for our Originall Writs of set forme are from anci­ent memory, have ever beene preserved in the booke called the Register, from the which our Clerkes may not swerve, to avoyd the infinite variety of formes which might otherwise ensue, and were first conceived and devised in as proper Latine, as the times wherein they were first in­vented, and the matter it selfe was able to beare. And as touching the other mentioned procee­dings entered in the Latine tongue, although not eloquent, yet satis laudato forensi stilo, as in any other Kingdome perspicuous and significant.

Let not the same therefore be a blemish to our Lawes, which hath invaded almost all other Sci­ences; for what horrid and incompt words hath Logicke and Phiolsophy endured, introdu­ced by their Dunces devices, as Ens, entitas, quid­ditas, causalitas, with a multitude of others im­pertinent to be remembred? with what improper tearmes and barbarous speeches have the School­men daubed Divinity? What hath beene in this kinde brought in upon the pure and cleare foun­taines of the Digests of the Civill Lawes? which [Page 53]being compiled out of sundry most excelent sen­tences, drawne out of the workes and passages of the ancient Romane Lawyers, doe retaine the same purity and conformity of a cleane and neat stile, as though all had beene penned by one man; and yet are in a manner defiled by the Feudary Tenu­rist writers of the middle age in their Glosses and Commentaries, as those learned Lawyers of this latter age Alciatus, Budaeus, Cujacius, and the rest have undergone an Herculean labour to clense the same.

But to conclude this matter; the Students of our Lawes, and the professors thereof may well defend themselves by the testimony and authori­tie of the best Writers in this behalfe: For first of all Aristotle himselfe giveth warrant,Arist. in Ca­tego. Relatio­nis. Quod nova vocabula sunt facienda cùm ad res explicandas nullae suppetunt voces: And herein they may bee bold to stand to the judgement of Tully himselfe who affirmeth, Omne quod de re bona dilucide dicitur, mihi praeclarè dici videtur: istiusmodi autem res dicere ornatè velle, puerile est; planè autem & perspicuè posse docti & intelligentis est viri. And I know no cause why wee may not say the same of our Lawyer which he affirmeth in that Booke of the Philosopher, Philosophum si affe­rat eloquentiam non esse aspernendum, si non habeat non esse ab eo admodum flagitandum, dum tamen complectatur verbis quod vult, & dicat pla­nè ut intelligatur. And so let me say, if our Law­yer or Pronotorie in drawing up his pleadings can use a good phrase and pure Latine, I will [Page 54]never blame him, if not, I will not expect it at his hands, so that that which he hath drawne bee congrue, plaine, famiiar, sensible, and easie to be understood.

Thus have wee produced two of the best Au­thors for our defence, the one for wit and know­ledge the worlds wonder; The other for eloquent and excellent speech in his native language the chiefest ornament. It shall suffice to conclude with a sentence of a Christian Father inferiour in humane learning to neither of them, whose speech because it is excellently to the pur­pose, I cannot let passe; Bonorum ingeniorum in­signis est indoles, in verbis verum amare non verba; Quid enim prodest clavis aurea, si, quod volumus aperire, non potest? aut quid obest lignea, si hoc potest? quando nihil quaerimus nisi patere quod clausum est? It is an excellent Argument of the best wits, not to hunt compt and filed words, but in words to embrace the truth, for what profiteth a Gol­den key, if it cannot open, and what hurt is it to use a wodden key, if it will open, when there is no other end of both, but to open that which was shut.

CAP. VII.

THe next succeeding Science Liberall is Logicke, Logicke. and there­fore order doth require wee should here also make inqui­rie whether the Art of Lo­gicke be necessary for the at­taining to the knowledge of the Law. The question hath beene diversly debated by sundry of Aristotles Interpreters, and such as have written of that Sci­ence both touching the peculiar instance or Hypo­thesis; as also more at large in the generall Thesis, namely, whether Logicke bee necessary for the better obtaining of other learned Sciences. In handling of this debate, we will hold our former proposed course, and first of all let us object a­gainst the necessity thereof.

Experience is a sure foundation:Ra. prima. many excel­lent Lawyers both in the civill Lawes of the Em­pire, the Cannon Lawes of the Church, and the Common Lawes of the Land have not beene skil­full in Logicke, and therefore Logicke is not ne­cessary for the knowledge of the Lawes.

Law Arguments are deduced more from au­thority then reason,Ra. seeunda. for the English Lawyer in ar­guments requireth most the strength of Cases apt to the purpose, and Presidents of former [Page 56]time, then discourse of reason; and therefore Lo­gicke which respecteth onely the inference and discourse of reason, is not so needfull for a Lawyer.

The Lawes deale with particular in stances,Ra. tertia. and individuall Cases, where the sundry circumstan­ces accompanying the fact, make manifest diffe­rence, inter aequum & iniquum; justum & injustum; whereas Logicke dealeth not with universalities abstracted from the particulars, and exempt from their circumstances, and therefore Logicke not necessary for a Lawyer.

A great part of Logicke doth treat of Propo­sitions,Ra. quarta. and the framing of Syllogismes, but the Lawyer doth not argue syllogistically, and there­fore needeth no Logicke.

Man is a living creature,Ra. quinta. by nature reasonable, and can by the gift of nature alone, apprehend, understand, inferre, collect, discourse, reason, prove, disprove, order, and dispose things concei­ved, and truly judge of them; and therfore where these things are by nature, what necessity is there to learne them by Art? for sicut pupillae inest visus, it a animae Intellectus; Arist. 1. Ethic. cap. 6. And a­gaine the same writer, homines à natura Dialecticos & Rhetoricos esse; Aristot. 1. Rhet. ad Theodoctum, & 1. Elenchorum. Every faculty and discipline of it selfe hath a distinct and peculiar manner of pro­ceeding, and therefore a speciall Logicke must be framed for the study of the Law if any bee ne­cessary at all, for the generall Logicke will not suffice.

The full handling of this question will give oc­casion of a large discourse, and incite us to set out and declare the principall parts of Logicke, and the true use thereof in the knowledge of the Lawes; wherefore lest our speech thorow multi­plicity of matter might be confuse, wee will hold this order:

First, 1 we shall endvour to produce the testi­monies of most approved Authors of the part af­firmative, wherein they have delivered the neces­sity or profitable use of Logicke.

Secondly, 2 wee shall undertake by reasons drawne from the most parts of Logicke, to prove the necessity, at lest the utility thereof.

Thirdly, 3 wee shall propound those places out of our owne Bookes of the Common Lawes of this Land, where the use of Logicke hath either beene acquired, admitted, or practized.

Then handling that part of Logick which con­cerneth Method, 4 wee will dispute whether the knowledge of the Law may bee brought into a Method yea or no?

Then wee shall consider the state of this maine question according to the different opinions of such as have written thereof.

And lastly, 6 Answer the arguments and obje­ctions at the first proposed on the contrarie part.

As touching the first of these;Ra. prima. although Lo­gicke was not brought to perfection in Platoes time, yet is the same greatly commended by him in some places of his works, as in Phardro & Parmi­nide. [Page 58]In Phaedro after some use of Logicall divisi­on expressed, Socrates falleth into a wonderfull commendation of Logicke. Iamblicus in his E­pistle to Sopratus affirmeth, That nulla scientia Phi­losophiae absque Dialectica ratione compararipotest.

How necessary the use of Logicke is for the ob­taining of other knowledges of other sciences, is made knowne by explicating the parts thereof in divers passages by Aristotle himselfe as 1. Poster. cap. 2. 1. Topic. cap. 2. and in Elenchis sophisticis, cap. 3. and in sundry other places of his workes, and in 4. Metaph. textu 8. he sheweth, that the an­cient Philosophers fell into many errours through the ignorance of Logicke.

Marcus Tullius Cicero the great Romane Orator in many places of his workes extolleth the neces­sity and use of Logicke. In his Tusculane Questions thus, That it is the Art quae rem definit, genera disper­tit, sequentia adjungit, perfecta concludi [...], vera & falsa dijudicat, ex qua cùm summa utilitas existit ad res ponderandas, tum maxime ingenua dilectatio & digna sapientia: Logicke is an Art that defineth and setteth forth the nature of things, it divideth the generall into its particular parts, it sheweth the necessary coherence and dependancy of the consequent deduced from the antecedent, it discerneth betweene truth and falshood, out of which ariseth as well an excellent profitable use in the search of things, as also an ingenuous de­light a worthy wisedome.

In his Booke de Finibus, he calleth Logicke the [...]le of knowledge, Quae quasi delapsa de cal [...] sit ad [Page 59]cognitionem omnium, ad quam omnia judicia rerum dirigantur: qua servata, nunquam ullius oratione victi, sententia desistamus: A rule of knowledge I say sent or slidden downe from heaven for the obtaining of the knowledge of all things, by which all judgements are directed, and which rule being truely observed, we can never by what­soever powerfull speech of any, be vanquished or diverted from apprehended truth, and a setled judgement. To the like effect he affirmeth by the example of Servius Sulpitius a famous Romane Lawyer who was Iuris consultorum eloquentissimus, & eloquentium Iuris consultissimus; That Logicke is an Art Quae docet rem universam tribuere, in par­tes, latentem explicare definiendo, obscuram explanare interpretando, ambiguum, primùm videre, deinde distinguere, postremò habere regulam qua vera & fal­sa dijudicarentur, & quae (quibus propositis) essent, quaeque non essent consequentia. Hee saith, That this Sulpitius; Ad ea quae confusè ab alijs aut responsa aut actasunt, disertè & respondisse & egisse; quòd is ad ju­ris civilis cognitionem Dialecticam omnium artium maximam quasi lucem attulerat.

Thus much out of the ancient Heathen; Let us now descend unto the Fathers of the Church: Origen in his second Homily upon Exodus hath these words, Eruditio ista (speaking of Logick) ad omnem pervenit sensum, & per eam quisque meditatus & fotus, ad divinorum intelligentiam paratior venit.

Clemens Alexandrinus thus, Dialectica velut ma­nuducit ad veram aeternamque scientiam, & ad cogni­tionem supremae veritatis.

Saint Ierome thus; Verè quicquid perversorum dogmatum est, & putatur esse robustum in terrena sapi­entia, hoc Dialecticae arte subvertitur, & instar incen­dij in cinerem favillas (que) dissolvitur.

Saint Augustine is also evident in many places as li. 2. de ordine. Ad religionis Christianae cognitio­nem nemo aspirare dehet sine Dialectica. And againe, lib. 2. de Doctrina Christiana: Disputationis disci­plina, ad omnia genera quaestionum, quae in literis san­ctis sunt penetranda & dissolvenda plurimum valet! tantùm ibi cavendum est, libido rixandi, & puerilis quaedam ostentatio decipiendi. And in sundry other parts of his works, as lib. 1. contra Crescomum Grammaticum; and lib. 3. contra Academ: And he hath defined Logicke to be Ars artium, Scientia scientiarum, qua aperta omnes aliae aperiuntur, & qua clausa, omnes aliae clauduntur.

By these Fathers of the Church, it may ap­peare how needfull they held Logicke to bee for the knowledge of Divinity.

The Interpretors of Aristotle, and the Writers of latter time pleno intonant ore.

Avicenna in his Treatise of Logicke, Cap. 2. Natura & prima inchoatio hominis, non fuit sufficiens ad verum cognoscendum, fuit ergo opus aliqua arte. per quam, modum procedendi in cognitione haberemus, ut tali modo perspecto, postea ad rerum speculationem accederemus, haec autem ars fuit Logica, seu Dialecti­ca, quae modum universalem tradit, rem quamlibet spe­culando.

Aquinas saith it is, Scientia rationalis, actuum rationis directiva.

Albertus magnus likewise: Logica est quae à Phantasiis, quae videntur & non sunt, liberat; errores damnat, falsitates ostendit, & lumen rectum in omni opere contemplationis praebet.

I will conclude with that which Barth. Kicker­man: hath in Gym. Logico, lib. 1. Logicke saith he, amongst other things promiseth, Tria maxima bona, Veritatem, perspicuitatem, & ordinem, quibus nihile est in humanis rebus, aut sublimius, aut pul­chrius.

But it will here be objected,Ob. That I have stray­ed from the question, which is, whether Logicke be necessary for the obtaining of the knowledge of the Law?

To the which I answer;Resp. That otherwise those Writers have laboured in vaine, who have published the Art of Logicke adapted for the Civill and Common Lawes, some in part as the Topicks, or places of invention legall; as Tullij Topica, ad Trebatium a Romane Lawyer: Claudius Cantiuncula, Nicholaus Everarde, in their bookes intituled Topica legalia, Hottaman and others.

And some others the Precepts of the whole Art, as Christopherus Hegendorphinus, Iohannes Thomas Fregius: Petrus Gambraeus, and others, as Apellus, Bellonus, Oldendorpius, Nevisanus, Gram­mara, &c. And how the same shall be needfull to the Common Law; That which we are further to declare will better manifest.

Concerning the Third proposed matter, These may be the reasons following to prove Logicke [Page 62]necessary or at least behoovfull to the study of the Law.

The Art of Logicke is the Art of reasoning,Ra. prima. Ars argumentandi, as one of the properties thereof, teaching to find out truth by argument and dispu­tation. But the Common Law of this Land (which is often stiled in our Bookes by the name of common reason) is deduced from principles evident and knowne, for the decision of such things as are drawne into doubt, and are un­knowne. The precepts thereof are taught by Lo­gicke in the bookes of Demonstration and To­picke parts of the Art of Logicke; and therefore is Logicke necessary for the obtaining of the knowledge of the Law, especially for that all points debated or controverted in our Law, are either matters in fact, and so triable by a lury: or doubts in law, determinable by disputation and argument.

Againe,Ra. secunda. Logicke teacheth a man to collect the Axiomes, principles, grounds and rules observed in that Art which he studieth, and being so col­lected aptly to dispose the same, which yeeldeth diversity of matter, and ready furniture for dispu­tation: but those things are very necessary to be observed in the study of the Law, therefore is Lo­gicke a very necessary science for the obtaining thereof in this respect.

Our Lawyer in his Law-arguments,Ra. tertia. the better to demonstrate and strengthen his opinion is dri­ven not onely to define or describe the thing dis­puted of, but to divide the same into parts, to [Page 63]distinguish the divers significations of the words, but also to search and indigate the difference of matters and cases proposed: all which the Art of Logicke professeth to teach; and therefore Lo­gicke is necessary.

Every man in his Argument ought to covet to bee understood of them that heare him;Rae. quarta. for to what end else should he speake.

But a man is best understood when in obscure matter he doth propose first, the most generall propositions, of easie apprehension, and out of them deduce others, and so to combine and knit all together, as all the parts in orderly disposition may cohere, of which result those three excellent things, Brevity, Perspicuity, and Verity, all which Logicke promiseth; and therefore is Logicke ne­cessary.

When a doubtfull question is proposed,Ra. quinta. the truth is found out by Argument, debate, and discourse of reason on both parts, as in all our law-arguments appeateth; and therefore such de­bate and conflict of reason is said to be the flayle whereby the corne is severed from the stubble, truth is tryed from falshood (for there can be but one truth;) and therefore when there is diver­sity of opinion, the truth can rest onely but of one part, and the others must bee deceived thorow the deceipt of a faulty forme of their manner of reasoning.

But Logicke teacheth a man to know the falacies of deceiptfull and imperfect Argu­ments, and to resolve them into better formes, [Page 64]or to disclose their imperfection; Ergo,

Every Artificer is made more expedite when he is furnished with apt instruments prepared to his hand,Ra sixta. Sed sciendi instrumenta sunt formae disce­rendi. The Instruments of knowledge are the formes of discourse; therefore our understanding which is the Artificer, is made more ready, when it hath right and fit grounds of argument reduced and prepared, which Logicke provideth, Ergo;

To obtaine the knowledge of any Science two things are required,Ra. septima. first, the certaine dependency and coherence of the parts of the matter to bee knowne, and secondly, the aptnesse of the instru­ment whereby we doe apprehend and know the same. The first of these doth result on the neces­sary consequence, that is, betweene the causes and their effects; the latter dependeth of the know­ledge of that discourse of reason and argument which is used in the apprehension of Science, and giveth satisfaction and assurednesse of truth to the learner. And these things doth Logicke mi­nister unto us; Ergo.

It is the saying of Aristotle, Ra. octav. Scire arbitramur cum cognoscimus rem ex sua causa, & quod alitèr se habere non potest. Then wee are assured to know when the effect is known by his true cause, whose consequence cannot saile: but these things wee learne by those Arguments which we call Demon­strations, which Logicke informeth us in. And ther­fore Aristotle truly observed, 2. Metaph. cap. 3. Est impedimentum ad scientias capessandas non prius te­nere modum sciendi. Where his Commentator [Page 65] Averois, and the most of his Interpreters doe un­derstand per modum sciendi, the Art of Logicke.

These things considered and laid together, it will not be hard or difficult, to answer the Rea­sons shortly of the opposite part.

As to the first: Experience indeed is a sure soun­dation,Resp. ad pri­mam object. and many excellent Lawyers haue beene without Logicke: But yet if Logicke had beene joyned to their Law, they would have beene bet­ter strengthned in their knowledge, and more perspicuous in the delivery thereof.

To the second:Resp. ad sec. ob. Law-arguments are often drawne out of Authorities: but Authorities prove two manner of wayes; 1, sometime directly, and then is Authoritie called an inartificiall Argument: 2, but most commonly, by inference and conse­quence, which Logicke directeth.

To the third: Lawes deale with particular Ca­ses,Resp. ad t [...]r­tiam Object. Logicke with universall Precepts. But when particular Causes are brought to argument, they are drawne to more generall Theses and Proposi­tions.

To the fourth:Resp. ad quar Object. it is true that the Lawyer doth not argue syllogistically concise, and yet many times with a Syllogisme at large.

To the fifth Objection: Reason is naturall, but yet it is polished by Art, and therefore best by the Art of Reason, which is Logicke:

It resteth now then,Res. ad quint. object. that wee examine Logicke by his parts, and try the use, utilitie, or necessitie thereof by examples out of our Lawes.

Amongst sundry definitions or descriptions of Logicke, Logica quid? this is one vulgarly received, Dialectica est recte definiendi, dividendi, & argumentandi ars: An Art teaching the true meanes of right Defi­nition, Division, and Argument. Wee will di­stinguish therefore these into parts, and speake first and formerly of Definition.

But before wee define what Definition is,Definitio quid? be­cause there is an ambiguitie, and duplicitie of the signification thereof, wee should first distin­guish the same. There is therefore Duplex Defini­tio. 1, Nominis: 2, Rei. Definitio Nominis est qua vocis significatio explicatur. The reason is added; Sunt enim verba notae aut signa rerum. And this also is twofold: The first called commonly Etimologie, of the Greeke words [...] & [...]: whereby is imparted the property, waight, and signification, or Emphasis of the word: and the reasons drawne therefrom are called in our bookes, Arguments, ex vi verbi. Thus Tully in his Topickes, and the La­tines after him, have called Notations, a notatione; Or,Etimologia quid? Etimologie est cum vox ex suae origine expli­catur.

The second kinde is called Antilexis; 2 and is cum vox ignotior vel obscurior voce notiore vel clariore idem significante declaratur. And of both these we have plentifull examples.

Etimologies of the first kinde, which are most ef­fectuall, are diversly deduced; sometimes from the matter, sometimes from the scope or end, [Page 67]sometimes from the effect, sometimes from the properties, sometimes from the object, & some­times from the opposite.

From the scope or end wee have sundry exam­ples;9 & 10. Eliz 267. b. n. Dyer. as a Colledge is in Latine called Collegium, a cohabitatione, & quia simul colliguntur.

So likewise wee call him an Executor of a last Will and Testament,Com. Pl. 2.280. b. of executing and perfor­ming the will of the dead; not that hee alwayes doth so, but that in respect of his power and duty he is bound so to doe.

So a Iudgement or Sentence of a Court is cal­led Iuditium quasi Iuris dictum, The finall saying,Coke lib. 10.42. a. judgement and doome of the Law. For that eve­ry Iudgement is taken and received for law, un­till it be reversed for error; for that is the scope and end of the Law.

Likewise a Preband is called Praebenda, Coke lib. 3. fo. 75. a praeben­do auxilium & consilium Episcopo: for to that end were Prebends ordained in Cathedrall Churches, that the Prebendaries therof should be Assistants and of Counsell to the Bishop in his Episcopall function.

Likewise saith Bracton, Rex dicitur a regendo, Lib. 3. cap. 9. Lib. 1. cap. 8. Bracton. non a regnando.

And the French word Verdict used in our Law for the resolution of those that are impanelled to try matters in fact, est quasi vere dictum, as the say­ing of truth; and so to be received without con­tradiction untill it be defeated by an attaint.

Sometimes Etimologies are drawne from the effect or operation: whereof Bracton saith well,Bract. lib. 3. cap. 1. [Page 68]That an Action or Suit in law may well be called an Action, quum agitur de injuria: for it is a com­plaint of an injury received.

So Damnum, Coke li. 10. ca. 116.117. Damage (saith one) is derived a demendo, cum diminutione res deterior fit.

A Confirmation is so called,Littl. con. cas. 520. as Littleton affir­meth, & idem est quod firmum facere, of the opera­tion it hath to make stable or firme a former Grant.

So is a Surrender,14. H. 7. Quia sursum'redditio, and of the two French words suise & rendre, or yeelding up of an estate againe to the Lessor or his assignee to the immediate Reversion from which it was derived.

To like purpose a Writ is called in Latine Breve, and in French a Briefe, Bract. 112.413. for the brevitie of it, and for that, (as Bracton saith) rem quae est & intentionē petentis breviter enarrat.

So, a Fine, whereby lands or inheritances are conveyed in Courts of Record by concord and agreement of the parties, in respect of their ope­ration, scope, and strength to make peace, and settle the Inheritance:Glanvil. Of which Glanvil the most ancient writer now extant of our Law, giveth an intimation when hee writeth, Dicitur talis concor­dia finalis, quia finem imponit negotio, adeo ut neutra pars litigantium ab eo poterit recedere. Which is al­so affirmed by the Statute of 21.21. Ed. 1. Ed. 1. de finibus levandis, where the words are, Quia Fines in curia nostra levati, finem litibus debent imponere: & idco Fines dicuntur maximè.

So wee say that the foundation of a Colledge,Coke li. 10. fo. 26. [Page 69]Hospitall, or such like is called fundatio, quasi fun­di datio, vel fundamenti locatio.

Likewise a Villeine, a man of servile or base degree is called in our Law in Latine servus; for as Bracton saith, dicitur servus à servando, non à ser­viendo, Bracton li. 1. ca. 60. pa. 3. antiquitùs enim solent Principes captivos vendere, & ideo eos servare & non occidere. And in English we call him Villeine à villa, from a Coun­try Farme, whereunto they were deputed to doe service, as our Villeines regardant to Mannors were, as old Records and Authors affirme, glebae ascrip­titiae, tyed to the Turfe: Or rather of the word vilis of his condition vile and base. And the wo­man Villeine as Littleton saith, is called a Neefe, quasi nativa: The making free of both which, or their Infranchisment, is called in Latine, Manu­missio, à manu mittere, quod idem est quod vel extra manum aut potestatem ponere vel dimittere; For ma­nus in the Law Metaphorically signifieth either power or possession, alluding to the old Cere­monie used in the infranchisment of Bondmen, whereof Isiodorus speaketh, manumitti servus dice­batur, cum Dominus ejus, aut caput ejusdem servi, aut aliud membrum tenens, dicebat, Hunc hominem liberū esse volo, & remittebat eum è manu. The ancient forme and Ceremony thereof among our Ance­stors the Saxons was in this manner: Si quis velit servum suum liberum facere, Lambert. APXAIONO­MIA. fo. 126. tradat eum vicecomiti per manum dextram in pleno Comitatu, & quietum illum clamare debet à jugo servitutis suae per manu­missionem, & ostendat ei liber as portas & vias, & tradat ei libera arma, scilicet lanceam & gladium [Page 70]& deinde liber homo efficitur.

So the word Remitter, which is an ancient tearme of the Law as Littleton saith of the word (mitter, or rather of the French word remitter to restore) and importeth a restitution of possession unto a mans ancient right.Litt. li. 3. cap. 12. Remitter. P. Com. 139. ca. P. Weston.

Likewise Mortmaine which is a gift of Land of other hereditaments to a Corporation, which hath a perpetuall succession, and therefore never like to returne to the Lord by Escheat or Donor by Reverter. And therefore as one sayth, it seem­eth to be taken into a dead or dying mans hand which holdeth fast whatsoever it claspeth. Or as the Frudists affirme;Pol. Virgil. lib. 17. In mortuam manum vocarunt, quod res sic datae tanquam mortuae, usui illorum mor­talium in perpetuum ademptae essent: or else as ano­ther of the contrary:Hottomanus de verbis Feudalibus. Quia possessio quasi immorta­lis est, quia nunquam heredem, vel successorem, vel possessorem habere desinit.

So we call a Rent paid yeerely for Land or o­ther things Redditus, à reddendo, because it is yeer­ly yeelded or restored for the Lands, &c. Or ra­ther as some will à redeundo, because it doth re­turne to the Lessor or Donor for the issues and profits of the Land: And in English it is called a Rent of the French word Rentor to rate or Assesse at a price.Coke lib. 10. f. 28. a.

As concerning these Derivations or Etymologies drawne from the finall cause or effect, I was not minded curiously to distinguish, for that in these things which doe depend of humane Acts, where­in the finall cause and effect is all one; for that [Page 71]the operation is attempted and atchieved for the effects sake.

But to proceed; Sometimes also Etymologies are drawne from the forme or manner of doing or working.

So we call a Common, to be a right whereby we take some kinde of profit in the land, or soyle, or inheritance of another, together in Common with the Owner or others, which Bracton expres­seth by way of Etymology thus:Bract. lib. 4. c. 33. f. 223.13. H. 8.16. a. Comunia ex vir­tute vocabuli componitur ex una & cum (& subintel­ligitur alio) Quia comunia est in alieno & una cum alio & in fundo proprio, quia nemini seruit suus fundus proprius.

Likewise wee call certaine Lands Copyholds of the forme and manner of Tenure, because the Tennants thereof doe hold the same per copiam rotuli Curiae Domini, they have no other evidence or writing of their Tenure; but the Copy of the roll of the Lords Court.

But of these we have said sufficient, let us now speake of the other kind which is called Antilexis, when an obscure word is explained by another more familiar or better knowne: This is perfor­med when an English word is expounded by a Latine word, or in any other language from whence the word was first derived.

As administration of goods of an Intestate is said to bee ordinatio seu dispositio, 1.Lamberts Iustice li. 1. ca. 17.22. b. Ass. pla. 6. P. 6. Eliz. Dyer. 166. b.

An Assault upon a mans person by another, is so called of the Latine word assultus and doth im­port [Page 72]the offer of any hurtfull blow or fearfull speech.

An arrest is said to be the restraint of a mans liberty by power or colour of a lawfull Warrant, derived as some thinke from the French word ar­rester to stay,Lamb. Iustic. li. 1. cap. 16. or else farre fetched from the Greeke word [...] a Decree or sentence of the Court.

So nomen à noscendo, quia notitiam fcit, where­upon saith Bracton, Bract lib. 4. ca. 20. f. 188. Ideò imposita sunt nomina ut demonstrent voluntatem dicentis, & utimur not is in vocis ministerio. So that we may easily observe; That many of these of this latter kinde are meere Dorivations,17. E. 4. so. 2. as Contract à contrahendo, Deodand, quasi Deo dandum, id est, id est, in eleemosynas erogandum, Divortiū à divertando, Duress ex duritia, of straight imprisonment or hard intreaty. Larceny, id est, la­trocinium, homicidium ab homine & cadio. Lamb. Iust. Bract. lib. 3.120. b. Para­pherna, id est, praeter dotem, and signifieth mundum muliebrem: Peace à vocabulo latino Pax: Lamb. Iustice, lib. 1. cap. 2. f. 67.

A Court of Pypowder, a Court belonging and incident to Markets and faires,12. E. 4.9. Lamb. de curijs. to yeeld Iu­stice to the buyers and sellers comming thither, which because they are most frequented in Sum­mer, the word was given of the dusty feet of the commers.

A Presentment which is presented by an In­quest containing some crime or neusance, wherof they had to enquire, is derived of the French word, presenter.

Records are so said of the verbe Recordor to re­member,Lamb. Iust. lib. 1. ca. 13. because they are Remembrances, & vetu­statis [Page 73]& veritatis vestigia, the lively representati­ons both of former time and truth: Reversion of the word Reverterr, or as terra revertens. Coke lib. 2. fo. 5.

An estate Tayle, of the French word tailer, to docke, or cut, limit or appoint in certainty,Littl. l. 1. c. 2. and many such like, whereon I need not to insist.

Sometime the Derivation of the word is de­duced from some ancient word in old time used although now antiquated and growne out of use, and yet neverthelesse such as giveth light to the present knowledge of the word, as Constable an ancient Officer of this Kingdome,Lamb. de Constables. derived of two old Saxon words, Kinning which signifieth King, and stable, stability,cyng. as the stabilitie of the King and Kingdom; So the word Farme in one signifi­cation importeth Lands, or other inheritances, holden for a yeerly rent, quasi feormian, Feormian. which is an old Saxon word, signifying to feed, or render vi­ctuall; for that in ancient time they rendred vi­ctuall for the most part, and not money.Lambert in Archion [...]mia

So warrantisure, of the old word which signi­fieth to defend or acquit, for so saith Bracton, War­rantizare nihil aliud est quam defendere,Bracton li. 5. fo. 350. b. Pa­ragraph. 2.& acquieta­re tenentem, qui warrentum vocavit in seisina sua.

So Gavellkinde, a custome whereby every sonne or heire male inheriteth a portion alike in his Ancestors estate, and is derived of two old Saxon words gife eal cyn, that is, given to all the kinne;gife cal cyn. Quasi omnibus cognatione proximis data hereditas.

So Guilda Mercatoria, Lam. Arch. Coke li. 10. fo. 30. an ancient word found in old Charters and monuments, and signifies contuberrimum: or a Corporation of Merchants.

So Steward derived of two old words, Steed and Ward, Coke lib. 9. fo. 45. and is as much to say, as a man appoin­ted in my steed or place.

So the word Wythernam, yet much in use, drawne from two old and ontworne Saxon words Wither, pyþorn;er & Nâm. Lam. Arch. alterum, & Nam, pignus; quasi alter a pignoris oblatio.

Sometimes Derivations are made of some old words, whereof the use from which the Deriva­tion was made, is now utterly changed, as socagiū, id est, servitium socae, id est, carucae, for that the word soca was used for a plough. But this service was after by generall consent of Lord and Tenant, redeemed by payment of a yeerly rent, and yet the signification remaining still, as Land giuen to plough the Lords Land, although the use of that service be abrogated; except upon Creation of the Tenure, it should bee reserved and so re­newed.

So saith one, the houses of the devoted reli­gious were called Monasteria, of the solitude or solitary life there led, which in latter dayes was nothing lesse,Clandius Cautiun. de lo. legal. Quia plera (que) monasterianil minus sunt quaem solitudines.

Sundry other Derivations there are, which are but onely allusions strained and framed by the wit and industry of man, rather then from the native signification of the word, and therefore of lesse regard and moment, as testamentum, quasi te­statio mentis, first devised by Servius Sulpitius the old Romane Lawyer, Aul. Gelius lib. 6. ca. 12. and used in our bookes, al­though impeached by Aulus Gellius in that age, or [Page 75]shortly after as a straine of wit, and not out of any true denomination of the word.

So likewise of that straine is agreamentum, Com. Fogoss. 17. Bract. lib. 1. ca. 3. which one would frame as aggregatio mentium.

So aequitas, quasi aequalitas, quiae est rerum conve­nientia, qua in paribus causis paria desiderat jura & omnia benè coaequiperat.

So have they derived selony,Lambert. Coke l. 4.124 Lam. Iust. l 1 ca. 20. Coke li. 4.37. quasi felleo animo factum; so another deriveth Robbery of the word robe. And another terra, à terendo, quia vomere te­ritur, and many such like, with the which I will not meddle.

There rests a few words of the use of these Etymo­logres, Notations, and allusions, and so an end.

Etymologies if they be rightly used and frawne from the finall cause or from the effect, doe not onely yeeld an Argument of good consequence, but also offer much illustration and delight; And therefore it is well observed by one,Clau. Cami­uneula. de loc. legal. That Etymo­logia est resolutio vocis in verum & proprium effectū, & verbi veritatem notificat, & obid, eam Cicero ve­riloquium appellat: And hence grew among the Graecians that usuall speech of the which Isiodore speaketh, [...] to learn aright it is principally necessary to search out the signification of the word.

First therefore, we are for the right use of them to observe; That these derivations are not to be observed in every word; For there are and must be in every language many primitives which have [Page 76]their native significations according to the impo­sers pleasure, for that of the Poet is to purpose;

They are Derivative words which out of com­positon may beare interpretations.

Secondly, 2 Arguments from Etymology are not to be used at all times and upon all occasions, but rarely, and where necessity doth require the same, or delight, or apt consequence doth offer fit occasion;Clau. Cant. and therefore saith one, Etymologia usum habet necessarium, quoties interpretatione res de qua quaeritur eget.

Thirdly, 3 that your allusions be such, non abhor­rentes ab ipso vocabulo, sed à sono vocis provenientes: not harshly or hardly drawne or wrung out, but answerable to the sound o fhte word, and appli­cation to the sense.

It is not my purpose to set forth here when arguments and reasons drawne from Etymolo­gies, doe hold their consequence, and when not, for therein the student of the Law must bee for­merly instructed by the Precepts of the Art of Logicke; for this place will not permit the same, lest I should treat of Arguments before I come to Argument. But let me not here forget that Ety­mologies are most used by the Authors of our Lawes in their Treatises and Tracts which are of Simplicis Thematis.

Having done with the derivation of words, we come now to the explication of the nature of the thing by definition.

Definition it selfe is thus defined,Definitio quid? Definitio est oratio, quae quid sit, de quo agitur, ostendit brevissime. It is a Proposition which doth expresse the na­ture of the thing shortly.Aristo. 1. Post. 2. Post. c. 10. And therefore Aristotle saith aptly, [...]: or as in ano­ther place to the like effect: Definitio est oratio, quae quid est significans. And therefore it is truely said of another, That Fons totius explicationis est vera Definitio; nullus enim rem melius noscere videtur, quam qui quid eam sit aperte possit explicare. Kickerns. A true Definition is the fountaine of explication: for no man knoweth any thing better then he which can aptly and briefly expresse the nature thereof, and what it is.

Of Definitions there by two kindes: the one perfect and absolute; the other lesse perfect. The perfect Definition is that which doth consist Ex proximo genere, & vera differentia; 1 as that where­by they doe define a man to be a liuing creature mortall endued with reason, the Genus whereof is a living creature mortall; which our English tougue cannot well expresse in one word, as it is by the Latine word Animal. But because this word is generall to many other living creatures besides, endued with sense, therefore that perfect difference, endued with reason, rationale, is adjoy­ned, whereby man is distinguished from all other things. For although Angels be indued with rea­son, [Page 78]yet are they not animalia, and there is no­thing which may be called animal rationale but man alone. This rule I here remember, Quod ge­nus & differentia ex Pradicamento sumantur.

But these things I leave to the Logicke-schoole: And for that our dull understanding can hardly discerne the true essentiall difference of things, we are driven, and especially in accidentall mat­ters, to expresse by their properties, parts, causes, or accidents; which a Logicall writer hath well conceived in these words, Cùm certum sit, hominem internas rerum formas perfectè non cognoscere, ideo loco differentiarum seu formarum, propria accidentia tanquam, scilicet, senfibus viciniora in definitione su­mimus. Another in this manner, Nuuiuorei majo­ri laboramus inopia quam differentiarum. And ano­ther, Laboramus plerumque vel maximè omnibus è rebus verarum differentiarum penuria, quae (que) hic ut in rebus caeteris pro veris habeamus, quae proximè veris videntur accedere. Therefore the imperfect Defi­nition, which is called a description; is thus set forth:

Definitio imperfecta est definiti per terminos minus essentiales explicatio. Of this there are, as some do teach, these kindes; Causalis, Partialis, & Acci­dentalis. Others somewhat more fully thus, Im­perfect à definitio sive descriptio, est principalis vel mi­nus principalis. Principalis, definitum explicat gene­re & accidentibus, vel causis, vel effectibus proprijs, vel partibus. And therefore that which is given of them ex causis, is called causans, and is nothing else but Oratio rei proprias causas manifestans: so [Page 59]that they doe affirme, That such descriptions are causall, and given per materiam & formam to be essentiall.

Descriptio, or Definitio minus principalis, which is, ex accidentibus, and therefore called accidenta­lis, est definiti ex merè conting entibus terminis, vel etiam externis explicatio, sive generis accurata assig­natione. And here I thinke it not amisse to observe some rules for good definition or description. And therefore.

First, every good definition or description ought to containe two principall parts: 1, That which is generall, and therefore called Genus, wherein the thing defined hath communitie with other things: And 2, that which may more par­ticularly expresse the nature thereof, to distin­guish the thing defined from all other things loco differentiae. And therefore saith Tully ad Trebatum, Sic veteres praecipiunt, cum sumpser is ea quae sunt rei quam definire velis cum alijs commania, usque eo per­sequi dum proprium efficiatur, quod nullam in aliam rem transferri potest. Another setteth the same downe in this manner: Primò quaerendum est Genus, deinde dividendum donec tandem veniatur ad eam orationem quae cum definito convenit.

Some men there are, which though they ex­toll the true definition (where it may be had) be­fore the description, as it deserveth; yet hold they the description more familiar, and apter to teach, then the former, whereof Lodovicus Vives writeth thus; The perfect Definition (saith hee) Verior quidem est, sed tamen obscurior: hinc fit, ut [Page 80]essentiales definitiones parùm doceant mentem hominis non exactè docti, cui quidem longè [...]tilior fuerit de­scriptio ab externis accidentibus, quae sensu possint per­cipi. And againe, essentiales, & exactissimae defini­tiones parùm nos docent, & idcirco apud authores bo­nos sunt rarae. For (saith one) Desinitio essentiam, descriptio intelligentiam rei claudit.

Authors have given certaine rules also appli­able to both these kindes, which I may not let passe: because in this place they stand (as I con­ceive) to good purpose. Whereof the first is thus: Removeri debet à definitione omnis ambiguitas, & omnis obscuritas, quae fit duabus causis: primò, ex translatione Tropi, & Metaphora: secundo, ex insolen­tia vocis, omnis vox inusitata est obscura. To this ef­fect hath Aristotle these words, Oportet eum qui de­finit, maximè omnium clarissima interpretatione uti: siquidem cognoscendi & intelligendi causa traditur. Wherefore the first rule as you see,Arist. Top. 6. ca. 1. ut clarior sit definitio, & debet dari per notiora: for that Definitio prolata sensui discentis notior & magis obvia esse debet.

The second rule is, That every good Definition debet reciprocari cum definito, it ought to be reci­procall and convertible with the thing defined or described. For the better understanding where­of, it is to be observed, that every thing needeth not a definition or description: for particular and individuall things subject to sense, need no definition or description: for that Definitio debet esse de universalibus. 9. Metaph. ca. 6. And hereupon Aristotle affir­meth, Omne quod definitur est species. And although [Page 81]there be five universalities or Praedicables as they tearme them, as Genus, Species, Differentia, Pro­prium, & Accidens, yet are there but foure Pradi­cata Topica, for species is the thing defined, and wherein, and whereby the rest are verified. And againe, Definitio est de rebus compositis à natura & finitis.

The third rule is as a consequent of the former, Nihil habeat superfluum aut diminutum Definitio: for if the definition or description be convertible, and reciprocall with the thing defined, or descri­bed (as it ought) it cannot have either superfluity or defect; this Precept I thought necessary in this place, because the student might be the bet­ter enformed to frame his Definition or descrip­tion.

Let me here say a word of the efficacy and use of definitions and descriptions; And after shall I endeavour to yeeld some examples out of our Lawes: A Definition is said to be one of the In­struments of knowledge, and that two manner of wayes; Primo in ordine ad definitum, whereby the thing defined or described is knowne, not by dis­course of reason but in a manner by contemplati­on intuitive, resembling the Angells know­ledge; and therefore it is said well by a Writer, Definitio est intuitiva cognitio; Kickerm. Arist. 8. To­pic. ca. 3. And hence it is that Aristotle so highly in many places of his workes commendeth the same Difficilis est omnis disputa­tio, nisi id de quo ea instituitur rectè ab initio definea­tur. And againe in the same place, Omnis quaestio de qua disputare difficile est vel definitionem requirit, [Page 82]vel distinctionem nomine. And in the fourth booke of his Physickes, Text. 31. Arist. setteth forth the effect of a Definition, Quod per eam omnia dubia solvi possint & debeant.

Whereupon one writer groweth so confident that he thinketh, that out of a full definition of a Mariage, and of an Oath, all controversies concer­ning either of them may bee fully decided; these be his words: Hujus utilitatis duo exempla sunt valdè conspicua, Strigellius. unum in doctrina de conjugio, alterum in disputatione de juramento, omnes quaestiones de his materijs facilius & certius possunt explicari. And therefore Tully in his Offices would have everie orderly treatise à definitione proficisci. De officijs lib. 1.

Secondly, a Definition is an Instrument of knowledge, In ordine ad demonstrationem, ad scien­dam conclusionem, Sungletius l. 2. lo. in prooem. hoc est, ad proprietatem demonstran­dam passionem de subjecto. But of this more here­after, when we shall speake of Arguments neces­sary, which are called Demonstrations.

Let us now exemplifie what we have said, by instan­ces drawne out of the Common Lawes of this Land.

If I would define or describe a Feoffment, I must first seeke out a Generall or Genus; Feoffment, quid? as thus, A Feoffment is a conveyance, but because there be sundry other conveyances, I must proceed fur­ther to distinguish the same from all other con­veyances; and therefore I adde and say, A Feoff­ment is a conveyance which passeth an estate in [Page 83]Fee-simple by Livery of Seisin; And hereby I have distinguished it from all conveyances of re­cord, and conveyances that inure by way of grant; But because likewise Leases for life are likewise passed by Livery of seisin; and likewise a gift in Taile, passeth by Livery and seisin, I have added the last complement and full difference in these words, in fee simple. Wherfore in every feoffment two things are of necessary regard; First, that it is performed by Livery of seisin. And secondly, that it passeth an estate in Fee simple: for Lands given in taile and executed by a Livery, we doe not call a Feoffment, but a gift in Tayle.

If I should define or describe a fine,Fine, quid? whereby Lands, and other hereditaments are conveyed, I would thus describe the same.

A fine is a conveyance of Record by Concord betweene the parties upon licence obtained in a suit depending betweene them in the Kings Court of Common Pleas. Where a Conveyance is the Generall or Genus, The words (of Record) make a difference from other conveyances passed in the Country in Pais. And because there are also some other Conveyances of Record, there is added further the essentiall difference, which is the forme of a Fine, namely, the concord upon li­cence obtained; for otherwise such concord can­not be admitted in an action depending between them: for without Action, there can be no Fine, which action or suit, must concerne Lands or He­reditaments, whereof the fine is levied, or upon an action of Covenant to levie such fine; And [Page 84]this suite must be depending: And next of all is added the Kings Court, for such fines as by Cu­stome may be levied in Courts of ancient De­mesne, or the like if any be, are not true fines, but similitudinary onely.

Lastly is added the Kings Court of Common Pleas, for that in ancient times, before the Court of Common Pleas was erected, fines were levied, (as among the old Records thereof appeareth) in any of the Kings great Courts of Law; But after the erection of the said Court, because fines are levied upon Original Writs that are Common Pleas, and therefore onely to bee dealt withall in that Court, fines are and ought to bee levied in that Court onely.

I may describe a fine shorter thus out of Glan­vills words;

Finis est amicablilis compositio & finalis Concordia, ex licentia terminans loquelas motos in Curia: for his very words are these: Contingit autem aliquan­do loquelas motas in Curia Domini Regis per amicabli­lem compositionem & finalem Concordiam terminari, sed ex licentia Regis vel ejus Iusticiariorum.

These like Concords have beene in use in the Civill Lawes, and are called by them Transacti­ons; whereof they say thus, Transactiones sunt de eis quae in controversia sunt, à lite futura aut pendente ad certam compositionem reducuntur, dando aliquid vel accipiendo.

Or shorter thus; Transactio est de re dubia & lite ancipite ne dum ad finem ducta, non gratuita pactio.

Where note that it may well be said nongratui­ta Pactio, because in the end of the concord of the fine, which is the forme thereof, there is con­tained a certaine summe o money under this forme, Et pro hoc fine habendo, &c. I. S. the cognizee dedit 20. li. sterlinguorum. So likewise there is mony paid unto the King which is called the Kings Silver, pro licentia concordandi.

Thus much have I adde out of the Civill Law, That the Student might as well in this, as in many other Titles of the Law observe the great confor­mity that is betweene the Common Law of the Land, and the Civill Law of the Empire.

If I should define Homage, I may say,Homagium quid? That Ho­mage is a service corporall of most reverence done by the Tenant unto his Lord, whereby hee doth acknowledge himselfe to become his man, and to doe him all earthly honor.

Where Service is the Genus, or most generall word, limited by the word corporall, to distin­guish from other services not corporal, for, that it is to bee done by the Tenant himselfe in person and by none other to the Lord: All those words that follow in the said description are added in stead of the difference drawne from the forme and manner of the performance of the said Service.

Bracton hath a larger description hereof, taken from the effects proceeding on both sides, thus; Homagium est Iuris vinculum, quo quis tenetur & a­stringitur ad warrantizanduns, defendendum, & ac­quietandum tenentem suum in sesina sua, versus omnes [Page 86]per certum servitium in donatione nominatum & ex­pressum, & etiā vice versa; Quo tenens re obligatur & astringitur ad fidem domino suo servandum, & servi­tium debitum faciendum. And after setteth downe the forme and manner of doing thereof. The Feudists in the Civill Law, doe render it shorter thus, Homagium seu hominium (haec enim vox com­munior est) est venerat io (si vim verbistrictè conside­ramus) cùm se eo nomine hominem, id est, Cliente [...] ipsius fore profitetur.

if likewise I should yeeld a generall descripti­on of an estate in Dower, Estate in Dower, quid? which might agree to all the several kinds of Dower by Littleton, I would describe it thus:

An estate in Dower is an estate of Freehold du­ring the life of a lawfull wife, appointed out of an inheritance whereof she is dowable, which estate beginneth upon and after the death of her hus­band for her maintenance.

The Generall of this description is an estate of Freehold during the life of a lawfull wife. There is added, appointed, for that an estate in dower is appointed two manner of wayes; 1 First, either by act of Law, as a gife of the Law upon a lawfull mariage, as is the Estate in Dower at Common Law, of the third part to bee assigned by metes, and bounds by the Law, and generall custome of the Realme: 2 Or else of more, as of the moity, &c. according to the custome of the particular palce.

It is said moreover, lawfull wife, for except the wife be a lawfull wife, and the mariage a law­full [Page 87]mariage, Dower cannot be had, for the estate in Dower is in regard of the mariage.

The second way, That Dower is appointed,2. Way. is by act of the partie, and that is, either at the ma­riage at the Church doore, when they come to be maried, and therefore called Dower ad ostium Ec­clesiae; or by consent of the Father, or other An­cestor of the husband, and therefore commonly called Dower ex assensu Patris, &c. But both these Dowers are almost worne out of use.

These words (afterthe death of her husband, for her maintenance,) doe containe the sinall cause and purpose wherefore it was put in use.

Dower by the course of the common Law, which is the most usuall kinde of Dower, may in this manner be described.

An estate in Dower by the course of the Com­mon Law, is an estate of Freehold for the life of a lawfull wife, of the third part of all those inheri­tances dowable, whereof the husband was feised of an estate of inheritance, during the Coverture, given by the Law to be compleat after the death of the husband, for her maintenance.

This description is drawne from all the causes: the Materiall cause is set forth unto us by the per­sons; the husband and wife, the forme is the estate of freehold for the life of the lawfull wife. The efficient causes are, The Act of the Law, and like­wise the seisin of the husband during the Cover­ture; and lastly, to be compleat after the death of her husband; And the finall cause in these words, for her maintenance.

So that by lawfull mariage the estate in Dower hath commencement by the seisin of the husband during the Coverture it hath his progression; and by the death of the husband his consummation, and accomplishment, whreeof ensue the three maine barres to be pleaded by the Tenant of the land in a writ of dower.3. Barres.

The first against the mariage, 1 ne vnques loyal­ment accoople, w^ch plea is triable by the Ordinary.

Against the Seisin, 2 ne unques seise, &c. tryable by a Iury.

And against the consummation, 3 that the hus­band is yet living, which is triable onely by proofes of witnesses.

Although the Civill Law doe call that Porti­on which is brought by the wife, or given with the wife in mariage (which we commonly call the mariage portion) Dos, her Dower: And they call the estate in Dower, Donatio propter nuptias, yet have they this agreement or conformity, quod neuter sine matrimonio esse potest.

And because wee have had occasion to skpeake of mariage, let us here define or describle the same,Bract. lib. 4. f. 298. b. Lib. 5. f. 420. Bracton out of the Common Law thus de­scribeth it, Matrimonium est conjunctio viri & mu­lier is individuam vitae consuetudinem retinens.

Britton thus: Matrimonie est affemblie, de home & de feme, Brittion 246. a lour deux volunts, per joynture de St. Eglise, per demurrer ensemble come un chaire à touts lour vies sans espoier de departure.

The Civill Law hath it in this manner:Institu. de Patria: Po­test. Matri­monium est divini & humani juris communicatio, in­ter [Page 89]virum & faemina [...], individuam vitae consuetudi­nem continens.

The definition of Mariage which Strigellius so much commendeth, whereby all the difficulties that fall in debate concerning Mariage, may be (as he thinketh) cetermined, is in this manner conceived.

Conjugium est unius maris & unius foeminae, Kickerm. legi­tima & indissolubilis copulatio, à Deo instituta in Pa­radiso, ut intelligamus Deum esse castum & castitatis amantem, ut ei in castitate serviamus, & ut hoc modo & non alitèr propagetur genus humanum.

A Rent may be thus described:Rent. quid? A rent is a Re­venue issuing out of lands or other manuall here­ditaments, and wherewith the same is charged for a time of continuance.

So that the genus is Revenue, and the materiall subject that supporteth the charge, is manuall he­reditaments, as land and such like, for out of no other hereditament can a rent bee properly reser­ved or granted: and the peculiar difference is wherewith the same is charged, for a Rent is a charge, and wheresoever the land be conveyed, tranfit cum suo onere, it goeth with his charge.

So that a certaine summe of money, or other things valuable (for a rent may bee reserved or granted of other things than money) are the mat­ter de qua; Land, or other manuall hereditaments the matter ex qua, or extra quam: The reservation or the grant, the efficient cause: The finall cause might also have beene expressed, but when the definition is otherwise plaine, it needeth not.

The Civill Law by this word Redditus, Le. 5. §. non possim. ff. de rebus [...]orum. or Re­ditus, understandeth generally Quicquid ex re ali­qua obvenit aut redit.

And because a Rent service hath his originall by way of reservation, let us here see what a Re­servation is.

A Reservation is an agreement betweene the Lord and Tenant,Reservation quid? or the Lessor and Lessee, that the Lord or Lessor shall receive at times appoin­ted a certaine summe of money or other thing ap­pointed to bee payd for the thing demised or granted.Com. Brow­ning 140. b. 35. H. 8.57. a

A Reliefe,Reliefe quid? called in Latine Releviū; The Feudists describe or define thus: Releviū dicitur honorariū, quod novus vassallus Patrono introitus causa largitur, quasi morte alterius vassalli, vel alio quo casu feudum ceciderit quod jam à novo sublevetur, veteres introi­tum appellabant.

Of a Reliefe Bracton hath these words,Bracton. lib. 2 fo. 83. Oportet statim quod tenementum, quod fuit in manibus ante­cessorum, & haereditas quae jacens fuit per eorum deces­sum relevetur in manus haeredum, & propter talem relevationem facienda erit ab haeredibus quaedam prae­statio quae dicitur Relevium. Out of which words of his, a description of a reliefe may thus be framed:

Relevium est quaedam Praestatio, facta ab haeredi­bus post mortem antecessoris ad relevandam haeredita­tem per eorum mortem jacentem.

Where he seemeth to use haereditas jacens for land, &c. descended to the heyre before his en­try, as the Civilians likewise take the same.Iudgement quid?

A Iudgement is the determination of a cause [Page 91]in controversie by a person thereunto appointed.

This Description is generall, and comprehen­deth all manner of Iudgements whatsoever: The Civilians doe thus render the same: Iudicium est actus legitimus, quo Iudex de causa proposita cognoscit, & secundum aequum & bonum pronunciat. Wherein they note to be three degrees: First, the Cogni­zance or power to judge. Secondly, that this Iudgement bee publike or published. Thirdly, that it bee just and right. This connexion they yeeld to be thus; Siquidem in nullo controversiarum genere prodest causam differri ad Iudicem, nisi cogno­scatur de ea, sic nihil profuerit esse cognitum nisi pro­nuncietur; denique, pronunciatum inutile erit nisi ex bono & aequo procedat.

There are sundry kindes of Iudgements, some­times diversified in respect of place, sometimes in respect of the person that judgeth, sometime in respect of the manner of proceeding. In respect of the place, as in a Court of Iustice, and then eve­ry Iudgement is said to be the Act of the Court: sometimes Iudgement given out of Court, as up­on the voluntary submission of the parties in con­troversie, as an award or arbitriment: with the descriptions of which I will end this part of our discourse touching Definitions and Descriptions.

An Arbitriment, which is also called an award,Arbitriment quid? is a Iudgement or Determination which one or more doe make at the request of two parties at the least, for or concerning debt, trespasse, or o­ther controversie had betweene the said parties.

The Civill Law yeeldeth it thus: Arbitrium [Page 92]est arbitri sententia, five Iudicium inter controverten­tes, privato concensu, non antem publica interveniente authoritate.

But to the intent the Student may know how to collect a definition or description of any legall part or title out of his bookes of Report, I will leave him here a description of an Award or Ar­bitriment, where every part is drawne and dedu­ced out of sundry Law Cases here and there seat­tred, which I have gathered as sundry dispersed stones into one building.

An Arbitriment is a Iudgement, 8. E. 4.1. a. 8. E. 4.10. a. 21. E. 4.39. a. given by such person or per­sons as are elected by the parties to the controversies, 9. E. 4.43. b. 16. E. 4.9. a. for the pacifying of the said controversie, 8. E. 4.10. a. 19. H. 6.37. b. Askew; according to the comprimise and submission, 19. E. 4.1. a. and agreeable to reason and good conscience.

All which words composing the said descripti­on, are deduced and drawne out of the bookes ci­ted, and onely by me laid together, and what is done here concerning an Arbitriment (of which hereafter I shall make a larger discourse) may be likewise performed in sundry other Titles.

There resteth an Objection to be removed;Ob. it is said by the ancient Roman Lawyer Iabolenus, Omnis desinitio in Iure Civili periculosa est, parum est enim ut non subverti possit: To define in Law is dissicult, and the sundry circumstances of things be so ma­ny, and so full of variety, as the definition or de­scription is happily made if it stand or remaine unimpeached.

To this I give answer,Resp. That all this is in a man­ner true; but let us remember, Difficilia quae pul­chra, and use so much the more care and diligence in the composition of the same. Albeit the In­terpretors doe understand him to meane by a Definition in that place, no other thing than a Rule or Ground in Law, yet neverthelesse both are necessarily attempted and performed suffici­ently: For otherwise the knowledge of the Law would be but an incertaine, inconstant, and tu­multuary knowledge (if that may be called know­ledge at all, but grounded upon wavering opini­ons,) but the knowledge of the Law is not such, as shall be evidently made manifest when we come to dispute, whether the Law may be reduced into a method or no.

Thus much of Definitions and Descriptions, there followeth in order the consideration of Di­visions.

Some there are which to avoid confusion be­cause they conceipt the word Division to containe severall significations not reducible under an univocall head,Divisio, quid they have therefore even divided Division it selfe, in bringing in the consideration of the name into his sundry significations, which they call divisio nominis, and which they describe thus:

Divisio nominis est oratio qua vox in sua signifi­cata distinguitur.

But because that were somewhat improper, and that more fit place will be found hereafter in the [Page 94]second part of this Treatise to handle the same, I will deale onely with those Divisions that are of the thing, Divisionis rei, Divisions of materiall parts.

Divisio rei, & totius per partes resolutio, and it is either Principalis, vel minùs Principalis.

Principalis est qua totum propriè & principaliter dividitur; & est vel generis in species, quae est divisio totius universalis, vel est totius essentialis, in suas partes essentiales, ut homo dividitur in corpus & ani­mam; vel est divisio totius integralis, in suas partes in­tegrales. So that of this kinde of division as you see there are three sorts.

Divisio generis est qua genus dividitur in suas spe­cies: 1 and this kinde of division is called of some Divisio totius subordinantis.

And so Ius, as it signifieth the law, is divided by Bracton in Publicum & Privatum, and of this kinde of division we have examples in the Law; as Littleton when he divideth an estate of Inheri­tance into an estate of Fee Simple, and an Estate Tayle: when he divideth an estate of Freehold into an estate of Inheritance, or an estate for life: So likewise he divideth an estate for life, either for the life of the partie, Ou pur auter vie: an estate for life of the party is either by act of Law, as that of Tenant in Dower, Tenant by the Curtesie, and Tenant apres possibility of issue extinct.

By act of the party, 2 as the generall estate for life, which hath his originall by Demise and limitati­on of the partie.

Of this kinde of division speaketh Melancton.

Divisio, generis in species est omnium praestantissi­ma & in omnibus artibus communissima.

And here some doe require Cum differentiae exactae haberi possint per duas tantùm dividatur, quae [...] dicitur.

And of this also they have made these three ob­servations:

• 1. Placuit omnem divisionem duabus differentiis è diverso positis perfici deberi.
• 2. Vt it a repugnent istae differentiae ut nequaquam in idem convenire possint.
• 3. Postremo, ut quicquid in genere continetur, id totum differentiae explicent.

Of this [...] so much extolled by Ramus, and too curiously observed by his followers, occasion was taken by Aristotle out of Plato as it seemeth, and appeareth, lib. 1. De partibus animalium, cap. 2. & 3.

But as touching the same I am of his minde which affirmeth, Nobis sicut primum esset, & voto forsitan optandum, ut legitimis duabus differentiis di­viderimus; ita proximum erit ut quibuscunque dua­bus (tamen sin minus poterimus duabus,) at quot cun­que poterimus dividamus, dummodo universam ejus quod dividitur complectamur latitudinem: And al­though it be true that Peripatetici semper dicotu­miam probarunt, tamen non [...] & absolutè, sed [...], and therfore we may not be tyed or restrained to make our division alwaies of two parts; but where that cannot conveniently be brought to passe, we may divide into so many parts as the nature of the thing shall require. And therefore Littleton [Page 96]in his division of Rents, divides them into three kindes; a Rent Service, a Rent Charge, a Rent Secke, which is very good and sufficient.

And so of a Warranty, where he divideth every Warranty either into a Lineall Warranty, a Collate­rall Warranty, or a Warranty commencing by dis­seisiin.

So likewise every estate in Dower is either by the Law, which is the generall Custome of the Realme, and is of the third part; or else by the pe­culiar custome of the place, as of the moity in Gavelkinde, or more or lesse as the custome of the place shall warrant: or else thirdly, by assigna­tion of the party, and that is twofold, either by the husband himselfe, ad ostium Ecclesiae, or else by the Ancestor, as Ex assensu patris; or, De la pluis beale, &c.

So likewise we divide the Materiall Church or Temple, the place appointed for divine Ser­vice into three kindes; a Church Cathedrall, which is the seat of the Bishop, and his Chaire: secondly, a Church Collegiate or Conventuall: and thirdly, a Church Parochiall.

So likewise we divide Tithes in this manner: all Tithes are either Pradiall, Personall, or Mixt.

So a division of foure or more parts is to bee admitted, if the nature of the thing divided doe so require: as Littleton importeth in this division of Actions.

All Actions are either reall Actions, Personall actions or mixt actions; and this Division is ordi­nary and almost every where in our Bookes. Lit­tleton [Page 97]seemeth to adde a fourth member, when he saith, that when a man releaseth all actions, Reall, Personall, and mixt, that this is no Barre in an Appeale, and yet a release of all actions sufficeth; he intimateth thereby that there is an Action, neither Reall, Personall or Mixt, and yet an Acti­on, as the Appeale, an Action of Reuenge.

And herein I would not wish; That for Dico­tumy sake, the Student should frame Divisions of his owne head, and labour to reduce them ad bt­membrem Divisionem, as some have done; But ac­cept rather those that are approved of Authors, and generally received in that Art. And herein let me observe by the way that Dicotumia or the twofold division, Si pariat multas subdivisiones, in­tellectui & memoriae aggerendas est vitiosa.

Likewise [...] vbi alterum membrum est po­sitivum, alterum negativum, non est bona.

In hac divisionis specie observandum est, ne id quod secundum magis & minus dividitur, in species dividi arbitremur.

And thus much de divisione totius universalis.

Divisio totius essentialis est qua totum essentiale in suas partes dividitur, ut in materiam & formam, & dicitur divisio totius coordinati.

Divisio totius integri est qua aliquid in sua mem­bra, seu partes integrales dividitur, & dicitur Parti­tio; Et est nihil aliud quam membrorum quae ad inte­gritatem totius requiruntur, enumeratio: As when we doe divide a house into the soyle whereon it standeth, and the edifice and structure thereof.

So the Author of the Dialogues betweene the [Page 98]Doctor and the Student divideth the Law in ge­nerall into the Law of Nature, the Law of Nati­ons, the Law of God, the Law of particular King­domes, as the Civill Law, the Law of this Land.

So also have the Civiliās divided their law thus; Ius Civile est quod legibus Plebiscitis, Senatus consul­tis, Principum placitis, Magistratuum Edict is Re­sponfis (que), Prudentium constat.

So doe we likewise divide the Law of England into the Common Law, and Statute Law.

So we distinguish and divide a Mannor into Demesnes and services.

And a Rectory into Glebe and Tithes.

We are now come to the second Principall Branch which is of the lesse principall Divisions.

Divisio minus Principalis, est qua dividitur totum impropriè dictum, ut 1. Causa per suos effectus, 2. Ef­fectus per suas causas, 3. Subjectum per sua accidentia, 4. Accidentia per sua subjecta, 5. accidentia per ac­cidentia, 6. res per sua objecta, adjuncta, 7. quando, per circumstantias loci, temporis.

Wee often make Divisions in the Law by the causes,Common. as Bracton doth divide a Common thus by the causes: First materiall, as of those profits whereof Common may be had; as Common of Estovers, to burne in their houses; Common of Pasture, for feed for their Cattle; Common to digge in the soile of another; scilicet, fodiendo, ut lapides, cretam, arenam, turbam, id est, Common of Turbary and such like; and likewise there is a [Page 99]Common of fishing called Common of Piscary.

In respect of the forme and manner, how a Common is divided, thus; Every Common is ei­ther, Common appendant, Common apperte­nant, Common per case de vicinage, or Common in grosse.

In respect of the efficient cause, a Common is divided thus, as all Commons are either by pre­scription, or else by grant: Commons by pre­scription are such as Antiquity of time, and long continuance have produced, as Common Appen­dant, Common per case de vicinage.

Commons that have had their originall by the grant of the Parties are either so granted as that the same is restrained to the beasts pasturing such lands; And so it may be called a Common apper­tenant, although improperly by Grant; or else a Common in grosse, and that in such liberty or manner of restraint of benefit as pleaseth the Grantor to bestow.

In respect of the circumstance of time, some Comons are for all times of the yeere, some o­thers for a certaine time onely.

In respect of the place, some Commons are in the Waste of the Lord, or by especiall grant through all his Land, or in his severall, or ubicun (que) averia sua iverint.

In Common of Pasture Bracton considereth these things; either the word pasture is taken largely, de omni quod edi poterit, vel pasci, largè sumpto vocabulo, ut si quis habeat in alicujus terra communiam pasturae, scilicet, herbagij, Pessonij, sive [Page 100]glandis, aut nucum, aut quicquid suo nomine Pessonig continetur, item foliorum & frondium.

So I may divide Conditions annexed to Con­tracts, or to estates in this manner.

All Conditions are either conditions in fact,Conditions. or in Law; Conditions in fact are either expressed in words, and so created by words conditionall, or else they are implyed, namely, conditions by implication.

Conditions expressed are either possible or im­possible to be performed, and then are those con­ditions void in Law, for, nemo tenetur ad impossibi­lia; All possible conditions are such as may be ei­ther against the Law, and that either against the Common Law, and then not onely the Conditi­on, but the whole Contract is voyd; But if it bee onely contrary to a Statute Law which may bee dispensed wiathll, then the Condition standeth good; and the partie bound thereby is likewise bound to procure a dispensation, and make him­selfe able to performe the same.

A Condition lawfull is either subsequent, or precedent; subsequent Conditions annexed to estates, doe either upon performance enlarge the same, or upon breach diminish or make voyd the same.

Conditions repugant are such as are limited, repugnant to the premises, as land given in Fee­simple by a common person upon a condition that he, nor his heires should alien. This is a repug­nant Condition to the amplenesse of the estate, and therefore voyd.

In like manner I might divide a Custome by the causes,Custome. as the internall causes are the matter and forme; The materiall parts may be the per­sons whom the custome concerneth; The place and proceedings in Courts of Iustice; For every Court of Iustice hath his Customes and courses of proceedings sometime different from others.

In respect of their forme, they are either gene­rall throughout all the Realme, and so doe they constitute that part of the Common Law which is grounded upon the generall Custome of the Realme.

Or else they are particular Customes to cer­taine places, of the which Bracton saith thus; Ha­bent Anglici plurima de consuetudine, quae non habent ex lege, sicut in diversis Comitatibus, Civitatibus, Burgis & Villis, ubi semper erit inquirendum, quae sit loci illius consuetudo, & qualiter utantur consuetudine.

Every speciall Custome, as touching the forme thereof, because it bindeth as a Law, and is as a peculiar Law of the place, hath two things consi­derable, First, the place; secondly, the manner and use of it. As concerning the place, every particular custome ought to bee bounded within the compasse of particular places, as sometime through a whole County or the greatest part thereof, as Gavell kinde in Kent: or within a Ci­tie, Borough or Towne, as Borough English: For a particular custome cannot be at large in places uplandish.

Secondly, as touching the forme and manner of use of it, it ought to bee reasonable and agree­able [Page 102]to common right without absurdity,Littl. l. c. 14. E. 3. f. Barr. 277. 42. E. 3. f. avowry 66. 14. H. 4. f. avow. 60. 2. H. 4.24. b. 5. H. 7.9. for the which a particular reason may bee yeelded and given.

Hence ensueth, That it ought to bee without prejudice to any, and not to bee injust in it selfe, 42. E. 3. f. avow. 66. 35. H. 6.29. b. Fitzh. Cu­stome 2.

Secondly, it ought to be certaine, 13. E. 3. f. dum fuit infra aetatem. 3. 22. H. 6.46.47.

Thirdly, it ought to be alleaged in the affirma­tive; for a negative Allegation is not perfect, 8. H. 6.4. a.

Efficient causes of a Custome are two; longe vi temporis usus, That is, commencement without notice of the originall when it begun, which they utter in these words; Temps dont Memorie ne court as Littleton speaketh; and secondly, continuance without notable interruption: 8. H. 6.4. b. 22. E. 4.8. b. 35. H. 6. f. Custome 2. 13. E. 3. f. Prae­script, 40. 21. H. 7.20. a. b.

The finall cause is the effect, that it binds like a Law, for, in things of this nature, the finall cause and the effect are all one: hereof Bracton speaketh, Consuetudo quando pro lege observatur in partibus ubi fuerit more utentium approbata est vicem legis obtinet. And againe, Longaevi temporis usus, non est vilis au­thoritas, Bracton lib. 1. cap. 3. f. 2. Hence is it said, That a custome ought to be compulsary, 42. E. 3. f. Avow. 665. 5. H 7.9.

I will here adde something out of the Civill and Cannon Lawes touching a Custome, wher­by the Student may observe the conformity of [Page 103]both studies, and conjoyne them if he list toge­ther; that one of them may assist, give light, and ornament unto the other.

First, where it was said, That a Generall Cu­stome is a parcell of the Lawes of the Realme; They likewise affirme, that Consuetudo generalis fa­cit jus commune; Clem. Fin. de aetate & qualita: And againe, Consuetudo tanti temporis cujus initium non continetur in hominum memoria, habet vim Privilegij Imperialis Le: §: ductus aquae de aqua quotidiana.

Againe, Consuetudo est jus moribus (id est) assiduis actibus introductum. C. Consue. i. Distinctio, volun­tas Populi rebus ipsis & factis declarata. Tacitus con­census omnium. Le. de quibus: ff. de legibus. Tacita civium Conventio. Ius scripto non comprehensum.

For the effect thereof, Consuetudo legem imitatur § ex non scriptis Institutis, de Iure naturali gentium & Civili: Legem imitari dixit, id est, tantundem praestare & quasi legem repraesentare Aldobe: ibid.

Consuetudinis vero officium est primo ut confirmet, deinde ut interpretetur scriptam legem si obscura sit: in Le: minimè Paulus, & Calistratus in leg. de inter­pretatione, ff. de legibus: with divers like, too long here to make repetition.

Sundry other examples of division might bee produced out of the Lawes of this Reame, which argue the necessary and frequent use of Division; but to omit them lest I should bee too tedious, and to leave the student to his owne industrious Collection, I will commemorate and insert here some few precepts to be observed in the making of an useful division, and after shew the benefit of [Page 104]this knowledge, and so relinquish the same.

The precepts therefore may bee drawne into two heads; The first in respect of the thing to be divided, namely, divisum or dividendum; The se­cond in respect of membra dividentia the parts di­viding.

As touching the things to be divided, it is to be observed, that Division is not alwayes neces­sary; for some things are so entire as they cannot be divided, as unitas, for if it bee divided, it is no more unity, but multiplicity.

So instance which is neither time past, nor time to come, but onely the moment of time present, unto the which the parts of time past and future, are conjoyned.

Many things in their nature are intire in the consideration of our Lawes, for Entierty is that quod in partes dividi non potest, I meane the divisi­on of totius integralis, not totius universalis. And therefore Entierties are of two kinds; First, some are such as by nature suffer no division, as the things before spoken of, Vnity, Instance, Corpo­rall service, of which it is said, ea quae in partes di­vidi non possunt, solida à singulis haeredibus debentur, as fealty and such like services, of which never­thelesse some certaine ones are appointed by Sta­tute,2. E. 2. f. avo. 179. to avoyd trouble, to bee performed by the eldest coheire, for the rest as Homage.

Other things are said to bee entire, which al­though they may bee divided into parts by their nature, that is, their nature and essence is not re­pugnant to a Division, yet the Law will permit [Page 105]no division of them by the act of the party, al­though by act in Law they doe abide Division, and such is a Rent Charge, a Warranty, a Condi­tion, &c.

As touching the parts dividing, or membra divi­dentia, Reg. 1 the first rule is, that Membra dividentia conveniunt cum toto & sunt toti adaquata, ita ut omnia membra simul sumpta sunt suo diviso aequalia, & quod nihil contineatur sub diviso quod non sub aliquo mem­bro, nec aliquod membrum quod non sit sub diviso.

The second rule is, Reg. 2 Quod membra dividentia sunt à se invicèm disjuncta, diversa, contradivisa & non subalterna, id est, quod unum in altero non contine­atur.

The third precept is, Reg. 3 Quod singula membra per se sumpta sunt inferiora diviso, contained within the amplitude of the thing divided, the parts being taken singularly and alone.

The fourth rule is, Reg. 4 That the parts and mem­bers dividing be proxima & immediata, next and immediate under that which is divided, and not fetched afarre off,Arist. 2. Post. cap. 5. & 14. which precept is taken out of Aristotle, 2. Post. ca. 5. & 14.

The fift rule is, Reg. 5 that Divisio instruatur membris quam per naturam fieri potest paucissimis: The reason whereof is assigned thus, Cum divisio rei manifestan­dae gratia inventa sit, si multa contineret membra fasti­dium potius & obscuritatem quàm cognitionem para­ret. And therefore it is Plato his Precept in his Politico, Non est tutum, ô amice, in minutissima redi­gere. And therefore Seneca said well, Simile est confuso quicquid in pulverem usque sectum fuerit, nam [Page 106]ut maxima comprehendere, ita in minima deducere difficile est.

The sixt and last precept is, Reg. 6 Quod membra divi­dentia quendam ordinem inter se habeant, & quod di­visio omni ambiguitate & obscuritate vacet.

And thus much concerning the Precepts of ar­tificiall Division may suffice.

As touching the use of Division, Plato in his Dialogues, Phedrus and Sophista, falleth into a large praise thereof, and in the person of Socrates affir­meth, Si nactus fuerit Ducem qui recte partiri sciat se ipsius tanquam Dei vestigia sequuturū esse. Where­of also Quintilian hath these words, Vt vascula or is angusti respuunt superfluam humoris copiam, tamen paulatìm instillando replentur, sic distributio si in par­tes, accipiuntur faciliùs, ut cibus mansus, citiùs ac fa­ciliùs digeritur.

Boetius in his book which he wrote de divisione, thus speaketh, Scientia dividendi omnibus studiosis magnum fructum adfert, ut quae facit ut res clarè à nobis tractari queat.

In a word, the utilities thereof may be reduced thus,Arist. 2. Post. Com. 74. Primò, quòd faciat ad rei cognitionem distin­ctam & evolatam: Secundò, quòd prosit ad praedicata essentialia vaenanda, id est, ad investigandum genus & differentiam: Tertio, ad recte ordinandas & methodice disponendas disciplinas.

Another hath these words, Divisio perfecta est principium intelligendi & constituendi rerum & disci­plinarum methodos.

But to leave these Philosophers, and to behold what the Civill Lawyers affirme thereof, and a­mongst much this may suffice, Per divisionem ma­teria meliùs intelligitur & faciliùs capitur: Le. 1. juncta gloss. ff. de dolo malo. And againe, Est autem divisio innumerabilis quasi materiae brevis compositio quae ad multa facit: Gloss. Instit. oblig. §. Olim autem in verbo divisio.

But to let these also to passe, I will conclude with that of Bracton, although mentioned before, Lib. 1. cap. 1. Divisio sive partitio animum legentis incitat, mentem intelligentiae praeparat, & memoriam artificiosè reformat.

Thus having in this manner ended with Defi­nition or Description, and with Division in such a summary fashion as I conceived most conveni­ent for the capacity of the Student, and especially how to informe him to make use of these parts as well in the study of the Law, as in any other his studies, leaving the exact knowledge thereof un­to the Logicke Schoole: I thought it good here to advertise you, that there may be neverthelesse observed of this which hath beene said concerning the premises, That the knowledge of Definition, Description, and Division, doe presuppose the knowledge of the five Predicables handled by Porphyries Institution to Aristotles Organon, for whatsoever is properly defined, described, or di­vided, is species, as hath beene already said. And the true parts of every perfect Definition are ge­nus and differentia; and of Description, Genus vel [Page 108]aliquod loco generis, Differentia vel aliquod loco diffe­rentiae, Proprium & Accidens tanquam partes descrip­tionis dicuntur.

Likewise is presupposed the knowledge of the Antepredicaments: for, Aequivocum or Analogon de­noting words of many significations, cannot bee defined or described so standing, but must first be distinguished into their sundry significations, Vt certum sit id quod definiatur aut describatur: For no­thing indeed may bee defined or described, but that which is univocum.

Also by the knowledge had de nominativis, the thing is knowne in concreto as well as in abstracto: which is very necessary in Descriptions, and many times in use: As Littleton in the first Chapter of his Booke, in his Treatise of Fee simple. But be­cause he writeth a booke of Tenures, which is the chiefe drift of that booke, he thought it better to tell you who was a Tenant in Fee simple, than to describe the state alone; for in so doing it was more sutable and answerable to his Treatise in hand, namely, of Tenures and their incidents ra­ther to deale with the Tenant than the estate, yet so as that thereby the estate is likewise sufficiently knowne. The like he performed in the rest of his Chapters, as of Tenant in Taile, Tenant in Do­wer, Tenant for Life, and the rest. Also the knowledge of the Predicaments and Post-predi­caments is likewise presupposed. And as touch­ing the Predicaments it is evident that the genus or differentia of every thing defined, described or divided, are to be sought in their proper and pe­culiar Predicaments.

As concerning the Post-predicaments, how many they are in number, and how many are needfull for this knowledge, may well bee made manifest by some examples, and the use of them in the Lawes.

Aristotle maketh foure kindes of Opposites; first, those that are relativè opposita, as the husband and the wife, the father and the sonne, the master and the servant,32. H. 8.3. Dyer. of which consisteth the estate Oecono­micall of every family and houshold. So likewise the King and his Subjects, the Magistrate and the People,4. El. 2.22.1. Dyer. of which consisteth the estate Politicall of the Kingdome and Common-wealth. So also the Lord and his Tenant, in whom anciently stood the strength of the Estate: the Lessor and Lessee, Grauntor and Grauntee, Feoffor and Feoffee, Bargainor and Bargainee, Conisor and Conisee, Recoveror and Tenont against whom the recove­ry was had, and such like, in whom and betweene whom all Conveyances and Contracts have their being. So likewise in suits reall the Demaundant and the Tenant, in suits personall and mixt the Plaintife and the Defendant, in an Assize the Plaintife and Tenant; Actor and Reus in criminall causes: betweene which persons all suits and pro­ceedings in Law are determined.

These are all relativè opposita, and have refe­rence each to other; as one man cannot be proper­ly Plaintife and Defendant in one and the selfe fame action; or Actor and Reus, except in some speciall causes onely, as where Interpleader may be admitted, as in a Writ of Detinue, where Gar­nishment [Page 110]is required,3. H. 6.18. 20. H. 6.28. 20. H. 6.29. 22. H. 6.45. a there the Defendant is be­come Actor against the Garnishee.

So in a Quare impedit, where the Defendant maketh Title to have a Writ to the Bishop, the Defendant is become as Actor.

In a Replevin upon an Avowry made,3. H. 6.18. a. 22. H. 6.45. a 22. E. 4 10. a the Avow­ant is become Actor.

So in a Quod ei deforceat, the Demandant or Plaintife shall defend his estate against such reco­very as shall be pleaded against him and become Defendant, and may vouch, Ac si esset tenens in priori brevi, by the Statute of Westm. 2.

Some resemblance of this is found in the Civill Lawes, where it is said, Actor in tribus istis judicigs, familiae oriscundae, communi dividendo, & finium Re­gundarum, intelligitur, qui ad judicium provocat. Le. 13.14. ff. de Iudicigs. li. 2. § 3. & Lex. 44. § 5. ff. fa­miliae hieresus. l. 11. infine. ff. de Iurisdict. Le. 20. fi­mium regundarum. Le. 37. in fine. ff. de obligationi­bus & actionibus.

TRhe second kinde of opposites are those which are contraria, 2 as right and wrong, ignorance and science; and of these some are without any media, and some have their media; and of those that have their media, Com. 467. Com. 247. some are by participation, and some by negation, which the Logick Schoole teacheth more at large.

The third kind of Opposites are those that are privativè opposita, 3 as light and darknesse, fight and blindnesse, which things succeed and deprive one another, where there is a progresse from the ha­bit to the privation; but seldome or never any re­turne [Page 111]from the privation to the habit: Villeine and Free are privatives;Com. 397. a. in prison and at large are privativa.

The fourth and last kind of Opposites are those which in Propositions and Clausesare contradicen­tia, the one Affirmative and the other Negative; 4 of which expresse and full affirmatives the Law requireth all issues to be joyned tryable by Iurors, that they may not bee inveigled in the tryall of matters in fact.

Also the Law of England being more precise in the forme of pleading than any other forreine Law, to the intent the issue and point that com­meth to be tryed in matters of fact might be evi­dent and cleare to a Iury, doth require that all af­firmative pleading in Barre or defence, to make it the more perspicuous affirmative, should bee averred, that is, an offer made of cleere proofes.

Of Negatives in the Law there are two kindes, as first, meere negations, of which we commonly say, Negativum nihil implicat: and there are also Propositions negative, which doe imply an affirma­tive, and those we call Negative pregnants, which we doe refuse in all issues of tryalls by Iurors, ex­cept in some cases, where the necessity of the cause doth require the same.

So moreover, Modi prioris and Modi simul, which Aristotle also handleth as Post-predicaments, are worthy consideration: For the better understan­ding whereof, note that Aristotle affirmeth that Prius quatuor modis dicitur.

Primò, id quod secundum tempus est prius, id est, [Page 112]prius tempore: So the law of Nature preceded the law of Nations, and the law of Nations pre­ceded the law of every peculiar people, and so the Common Law of this Land preceded the Statute Law, which as occasion was offered, in e­very Kings reigne had his originall. So in the making of a Deed, there is writing, sealing, and delivery: the writing goeth before sealing, and the sealing before delivery.

Secundò, 2 aliquid est prius ordine Naturae. There are many things which are simul tempore, where neverthelesse there is a Priority and Posteriority in Nature. As when Tenant for Life doth sur­render to the Grauntee of the Reversion, not having attorned to him before, in respect of time the included Attornament and Surrender come together, and are wrought at one instant, and yet the Attornament is first in Nature, and precedeth the Surrender: For the Attorne­ment implyed doth first settle the Reversion in the Grauntee, before the Surrender can take place.

So if Lessee for yeares and he in the reversion in Fee doe joyne in a Feoffement to a stranger, it is first the surrender of Lessee for yeares, and after the Feoffement of him in the Reversion in Nature and operation in Law; and they both are yet performed in respect of time simul & semel.

If a man by his last Will and Testament in the former part thereof, devise Lands deviseable, holden in Socage to I.S. in Fee, and afterwards [Page 113]in the latter part of the same will, deviseth a rent out of the same land to Io: No: in fee, and dieth, by the Devisors death, the whole Testament will take effect at one time But: the Law shall ad­judge it first a devise of the rent, and after a devise of the land; for in course of nature hee that gran­teth rent out of land, ought to bee owner of the land, and so devise the rent, and not first devise away the land, and after devise the rent; That were no good conformity.

Tertiò, secundum ordinem Prius dicitur; 3 This is priority according to conformity of order; So in every writ, men are by the rule of the Register in their writs to hold order in their Demands; For preposterous order is disorder, and destroyeth all; for as Bracton saith,Bract. 188.35 H. 6.13. b. Bract. 316. f. 400. there ought to be ordinata dispositio, and this is Bonum ordinis, the good of or­der; Ordo est cujuslibet rei suo loco concinna digestio.

Fourthly and lastly, aliquid dicitur prius honore, quod melius est & honorabilius est, id prius est, and this is called Prius dignitate, as a mesuage prece­deth in dignity land arable, and land arable pa­sture; the whole is more then the parts, the hus­band precedeth the wife,3. H. 6.33. 4. H. 6.3. and so must be placed in all Writs and pleadings.

Aristotle according to the opinion of former Philosophers, having set downe these foure kinds of Priorities, addeth of his owne invention a fift, Quae convertuntur secundum essendi consequentiam, & quod alteri quomodo libet causa est prius natura possit. But this seemeth to be but a species of Prius natura spoken of before.

So also is it de modis simul, for it appeareth by that which hath beene said, that quaedam are si­mul tempore, quorum generatio est in eodem tempore, neutrum enim eorum neque prius, neque posterius est tempore.

Quaedam sunt simul natura, as are all Relativa and Correlativa, all those that are relativè opposita. Againe, they are thirdly also simul natura, which are species ejusdem generis; But of this I will sur­cease, and speake onely of some few things that re­maine, which further the knowledge of Definiti­on and Division.

For as much as Division is totius in partes di­stributio, it shall bee necessary to consider the na­ture of the whole, totum est quod ex partibus constat. And some there are which have divided the con­sideration of the whole into these parts; There is totum universale, Coke lib. 11.50. a. totum essentiale, totum integrale, totum in quantitate, totumin modo, totum in loco, to­tum in tempore.

But for these latter foure, since they doe under­goe nomen totius improperly, and are used to draw reasons in Topicall inventions, and not usefull to Divisions, I let them passe, and shall therefore retaine onely the usuall consideration of the three former.

Totum universale is that quod in species subjecti­vs dividi potest, 1 as when a Rent is divided into a Rent-service, a rent Charge, and a rent Secke.

An estate of Inheritance divided into an estate of Fee simple, and an estate in Taile so that Inhe­ritance is totum universale.

Totum essentiale is when the whole is divided into the matter and forme, 2 Sic itaque materia & forma hic induunt rationem partium; As Man is di­vided into these essentiall parts, the body and soule, and of this kinde we have no great use in the Law.

The third is totum integrale, 3 whereof we have more frequent use, when the whole is divided in­to the integrall parts, whereof it consisteth as a Mannor into Demesnes and services; a Rectory is divided into Glebe and Tithes; a house into soyle and structure as hath appeared before. The Division of totum universale in suas species is Logicall or Metaphysicall: The Division of totum essentiale in suas partes essentiales is Naturall; The Division of totum integrale in suas partes is in man­ner Artificiall or Mechanicall; And this difference there is betweene totum essentiale, and totum inte­grale, ut si una pars essentialis desit, totum non potest dici mutilum sed planè abolitum: Et ut priores duae Divisiones sumuntur ex substantia; Ita haec Divisio totius integralis sumitur ex quantitate: And there­fore totum integrale is twofold, the one I may call totum integrale continuum, and the other totum in­tegrale discretum, even as quantity it selfe is divided.

Totum continuum est perfectè dictum, Quia ex par­tibus substantialibus & quantis per se unitis constat; estque vel homogeneum, vel heterogeneum; homoge­neum est quod ex partibus idem nomen cum toto haben­tibus constat, as all parts of water are water, all parts of bone are bone, all parts of flesh is flesh, [Page 116]every yeard of a peece of cloth is cloth.1. R. 3. fo. 3.

Heterogeneum est quod constate ex partibus diver si nominis à toto, ut corpus humanum constans ex capite, thorace, corde, pedibus &c. & ex his partibus quaedam sunt Principales, sine quibus totum non potest manere incolume, ita partes humani corporis constituuntur à medicis cerebrum, 2 R. 3.2. b. cor & epur: minùs Principales quae abesse possunt sine totius interitu, ut manus, pes, &c.

Totum discretum est totum imperfectè dictum, & constat ex aggregatione partium, vel substantialium, vel accidentaliū, ex qua aggregatione non oritur totum per se unum; ut in substātialibus, acervus lapidum, grex ovium, &c. And of these wee have some few ex­amples in the Law, as the Cart and Oxen or Hor­ses drawing the same, may all bee distrained, and the distresse not excessive, because they all make but one totall:8. H. 4.16. Brooke distr. 55. And so in a Deodand may all be forfeit, because they make but one totall, moving to the death. So likewise a Corporation may be called totum integrale discretum ob aggregatum, quod ex mult is personis aggregatis constat. 20. E. 4.3. Broo. distr. 89.12. H. 8.13. b.

Totum discretum accidentale, sive ex partibus acci­dentalibus constans, est quod impropriè & planè acci­dentalitèr totum dicitur; & est cum 1, causatum ex suis causis dividitur; 2, cum subjectum per sua acci­dentia; 3. cum accidens per sua subjecta; 4, cum acci­dens per sua accidentia dividitur. And here I leave, for I shun to be over tedious or curious in these things, for that my indeavour is rather diligently to try the use, then curiously to enquire the Art.

Because wee have formerly both defined and [Page 117]divided by the causes, it shall be necessary to say something of them.

There be foure causes of every thing, the mate­riall, the formall, and the efficient, and fourthly, the finall cause, whereof two are essentiall as it were, and enter into the composition, as the ma­teriall and formall, and the two other are the ex­ternall, the efficient, and the finall cause.

The materiall cause they have divided into three kinds, although improperly, yet for use suf­ficiently,Materialis causa. as materia ex qua, materia in qua, and mate­ria circa quam.

Materia ex qua may be thus defined, materia est quae cum forma constitutit rem, & this regarded as well in things substantiall, as accidentall, and then hath it also two kinds, materia permanens, which re­maineth in the things constituted, 1 as an house made of stones, timber, earth, &c. A garment made of cloth, wollen, linnen or silke; A Potters vessell made of earth, all which as substances do remaine in the thing composed.

Or materia transiens, 2 which is changed in the mixture or composition, as meale and water are the materiall causes of bread, but transient and changed in the composition.

In accidentall things such as are most Titles or matters of the Law, there is the like composition of matter and forme, as by example hereafter is many particular things will bee made mani­fest, as in all your Inheritances or hereditaments, corporall compound.

And of this kinde of materiall cause, Materia [Page 118]ex qua, there is another Division; for it is either materia remota or propinqua, remote, as a garment of wollen cloth hath woll to be the remote or me­diate cause, and wollen cloth for the propinque and immediate cause.

Materia in qua, and materia circa quam, are causes improper and seene in accidentall things; as materia in qua est subjectum, and materia circa quam est objectum.

Forme or the formall cause is said to be causa unde formatum pendet, Formalis. and is either substantiall, as the soule of man, whereby hee consisteth, is the forme of man, for as Plato said Anima cujusque est quis (que), and this cause is thus described, forma est quae dat esse rei, and it is also remota or propinqua.

The accidentall forme insubstances is the outer shape and figure of things, which for want of the true knowledge of the inward, wee be often com­pelled to use.

The accidentall forme in accidents is Essentia, as forma Reip: est ordo & unio inter Magistratum & subditos certis legibus sancita, whereof result the sundry kindes of Common Wealths.

There resteth the consideration of the efficient and finall causes.

Causa efficiens est, à qua primò incepit motus & operatio; of these efficient causes some doe pre­cede the worke, and some doe effect the worke; Causes efficient which doe precede the worke. are impulsive causes; the first instigation which move the undertaking of the worke: So Cicero pro Milone, Maxima illecebra peccandi impunitatis [Page 119]spes; A great impulsive cause of offence is the hope to escape unpunished.

So Salust maketh the immoderate desire of rule and vaine glory to be oftentimes the impul­sive cause of warre, libidinem dominandi causam belli habent, & maximam gloriam in maximo imperio ponunt. These be internall impulsive causes; there are also externall; so liberality and beneficence is a great externall impulsive cause of benevolence; Qui liberalitate utuntur benevolentiam sibi conciliant: Cic. lib. 2. d [...] Finibus. So truth speaking is sometimes an impulsive cause of hatred, flattery of friends, veritas odium parit, obsequium amicos.

Causes that effect the worke, are those that are active to perfore the worke; Those that are agents in the worke are, 1, the necessary or sole cause, 2, the sufficient cause, which also may be sole, but not of necessity required; 3, the coad­jivant cause, and fourthly, the instrumentall cause.

Necessaria causa ea vocatur à qua ita procedit effe­ctus, 1 ut non possit posita causa non procedere effectus, nec ab alia causa talis effectus possit provenire.

So God was the efficient cause, and sole cause in creating of the world; And so the Sunne is the sole efficient necessary cause of the day by his light in our Hemispher effecting the same.

The efficient cause which is called the sufficient is that cause which is able alone to produce the work; 2 but it is not the sole and onely cause to pro­duce that effect, for that that effect may as well be produced by another cause as sufficient as the [Page 120]former. As fire is the cause of heat, and sufficient alone to produce heat; and yet heat doth not alwayes proceed from the fire, but from the Sun, from exercise, and sundry other meanes, so that fire is not necessary and alone required to bring forth heat.

Coadjuvant causes are those that worke to the producing of the effect, but together with some other cause, which is more principall in the ope­ration; So in the obtaining of a victorie by bat­tell, the Generall is not the sole cause, but there doe concurre the Captaines, Centurions, Soul­diers, and such like; as Cicero in his Oration pro Marcello, in societatem victoriae cum Caesare venisse Duces, Centuriones, Milites. So Afranius the Poet speaketh of Wisedome, usus me genuit, Mater pe­perit Memoria.

The instrumentall causes are the instruments used in the worke, Instrumentales causae (saith one) sunt organa per quae est efficax causa Principalis, as Bookes are the instrumentall causes of learning & militum instrumenta sunt arma, to which may be adjoyned that cause which they call causa sine qua non, as Medium in visione.

Causes that follow the worke, are called Con­servant causes, Polibius yeeldeth this example, Duo sunt quibus omnis Resp: servatur, in hostes for­titudo & domi concordia. So in another example, Seneca, Melius beneficijs Imperium custoditur quam armis.

And of all these efficient causes as touching the manenr of the working, some are causes mediate, [Page 121]or removed, and some are immediate and pro­pinque.

This may suffice briefly for the knowledge of the nature of the efficient cause, if we adde a word of the accidentall cause, namely, an accident that happeneth not intended, but casually interveni­ent, and yeeldeth further ance to the effect: Sic piscatio fuit causa fortuita, & per accidents, piscatoribus Milesiis, qurei tripodis inveniendi. And so Cicero lib. 3. de natura Deorum: Phaedro Iasoni profuit hostis, Cic. l. 3. de natura Deo rum. qui gladio quo eum petere volebat, vomicamejus appe­ruit, quam Medici sanare non poterant. And so wee see that in the Law a casuall chance is the cause of the death of man, although perpetrated by the act of another.

There followeth the last and finall cause,Finalis. and it is that cause Cujus gratia efficiens agit, and it is the fruition of the work, and therefore finis est ipse usus rei, and oftentimes differeth not from the ef­fect it selfe, revera, sed ratione finis. Finis, saith A­ristotle, esT primus in intentione, & ultimus in execu­tione: The first thing intended, and the last thing effected.

The power of the end or finall cause is twofold, it is first impulsive to the worke; secondly, di­rective to the meanes, and therefore it is often called Causa causarum.

In respect of his impulsive power it may be one re with the essicient, impulsive, inward cause; and it is the same which directeth the meanes, and gi­veth name to the action, as Bracton speaketh; In­tentio tua, & affectio tua nomen imponit operi tuo. And [Page 122]againe, Tolle voluntatem, & omnis actus erit indif­ferens. And therefore in as much as the finall cause directeth the meanes, Non faciamus malum, ut inde eveniat bonum.

Cicero most excellently, lib. 2. de natura Deorum, expresseth notably the finall causes of all things: Omnia aliorum sunt causa generata, ut fruges atque fructus quos terra gignit, animant ium causa; animan­tes autem hominum, ut Equus vehendi causa, Bos a­randi, venandi & custodiendi Canis, ipse autem Homo ortus est ad mundum contemplandum & imitandum. And againe the same Author;1. Offic. Homines hominum causa generati, ut ipsi inter se alij alijs prodesse possint. Likewise the same Author doth excellently ex­presse the end of government: Moderatori Reip. beata Civium vita proposita est, ut ea nimirum opibus firma, copijs locuples, gloria ampla, virtute honesta sit. Of one and the selfe same thing there may be many finall causes, Vnde quidam sunt Principales & ulti­mi, & alij intermedij, qui quodam modo ad ultimum conducunt.

Thus much may suffice in the consideration of the causes, and of these things that have beene af­firmed, The Student may be instructed sufficient­ly to undergoe the first Logicall Exercise, whcih is Tractatio simplicis Thematis, and exercise of won­derfull use in the true obtaining of the knowledge [...] the Law, and is able to furnish him with copy of matter for Argument in every Case, and upon every sudden occasion, and wherein those things which we have spoken of the causes may be abun­dantly exemplified.

There resteth then nothing but to shew the manner how it may be performed, and to set foth some examples in the Law of the same: But be­fore I depart from this discourse of the causes, for the better explanation of that which hath been said touching the same, we will adde some ex­amples and instances drawne out of the Volumes of the Lawes, and out of the Arguments of Cases debated, that thereby our Student may the bet­ter understand the use thereof.

Therefore first of all touching that materiall cause, Ex qua res constituitur, 1 wee may observe in the Law, That in things corporall compound this kinde of matter resulteth to be one with the inte­grall parts; as the matter whereof an house is composed are these materialls of Stone, Timber, Earth, Lime, and such like, whereof it is framed, and which are the integrall parts of this whole.

So a Mannor which is Quiddam totum compo­situm corporale, consisteth of Demesnes and Ser­vices;A Mannor. and the Demesnes doe containe, land, mea­dowe, pasture, wood, &c. and the services doe import not onely the rent payable, but the cor­porall service and attendancy of the Tenants thereof.

So a Monastery, site, house,Monastery. 38. E. 3.21. a Com. 168. b. and also the lands & possessions belonging thereunto, is included in the generall name Monastery, because those im­port the matter ex qua consistit.

So the matter of a Parke is land inclosed,5. E. 4.28. a. Ardun. 10. H. 7.6. a. 10 H. 7.30. a and the Derre; for the Deere are held as parcell of the Parke.

Of corporall things the matter is also corpo­rall and visible, and are subject to manuall tradi­tion and delivery;Rent. as the matter of a Rent is a summe of money, or other corporall thing pay­able, reserved or granted, as Rent-Corne, and such like.

The matter of Tithes are things annually pro­duced by way of increase.Tithes.

The matter of an Herriot or Mortuary is the best beast of the owner.Herriot.

The matter of a Corporation consisteth in the bodies naturall of the person or persons of which it is combined;Corporation. Vide 21. E. 4 56. a 63. a. 68. a. who although they be framed in­to a politike consideration of perdurance and suc­cession, yet is there in that consideration a respect also had of the body naturall.

Of things incorporeall considered by the Law, the matter or materiall cause is that which is put into the definition loco generis, in lieu of the gene­rall: for true it is that Genus in desinitione vel de­scriptione supplet vicem materiae, differentia vero formae.

So we may say that the materiall of a Fee Sim­ple,Fee. and also of an Estate Taile, is an inheritance, because inheritance is the genus in the definition or description of both of them.

The matter of Homage is a corporall service.Homage. Warranty.

The matter of Warranty is a Covenant reall, whereby the party which made it standeth bound to defend the thing warranted by him, or to yeeld in value.The Law.

The matter of the Law of England generally [Page 125]taken, ex qua constituitur, is the law of Nature, the law of God, the generall Customes of the Realm, Maximes drawne out of the Law of Nature, as the Principles of Reason, primarily or secondari­ly deduced, Constitutions and Acts of Parlia­ment. Materia circa quam, on which it worketh, are lites & contentiones, casEs of debate daily comming into question touching persons, possessions, and injuries done by word or act.

In a contract of Sale,Sale. the materiall causes are the things sold, and the price agreed upon; the forme is the manner of the contract, absolute or conditionall, perpetuall or temporary; the effi­cient causes, the parties contracting, the buyer and the seller; the end or finall cause is to trans­ferre property from the one to the other, to sup­ply each others indigence: the matter ex qua, is either permament or transient, as hath beene said: The consideration whereof yeeldeth in the Law this fruitfull distinction: For if a man take wrong­fully the materiall which was mine, and is perma­nent, not adding any other thing thereunto, than the forme onely by alteration thereof, such thing so newly formed by an exterior forme, notwith­standing still remaineth mine, (as some have held opinion) and may be seised againe by me, and I may take it out of his possession as mine owne: But they say, if he adde some other matter there­unto, as of another mans leather doth make shooes or boots, or of my cloth maketh garments, adding to the accomplishment thereof of his owne, he hath thereby altered the property, so [Page 126]that the first owner cannot seize the thing so composed, but is driven to his action to recover his remedy; howbeit by the judgement of the Court in a case of that nature depending, it hath beene determined that the first owner might seize the same, notwithstanding such addition. But if the thing be transitory in his nature by the change, as if one take my corne or meale, and maketh therof bread, I cannot in that case seize the bread, because as the Civill Law speaketh, Haec species facta ex materia aliena, in pristinam formam reduci non potest, ergo ci à quo est facta cedit.

So some have said, that if a man take my barly, and make thereof malt, because it is changed into another nature the barly cannot be seised by me. But the sure Rule is,Regula. That where the materiall wrongfully taken away could not at first before a­ny alteration be seised, for that it could not bee distinguished from other things of that kinde, as corne, money, and such like; there those things cannot be scised by the former owner, because the property of those things cannot be distinguished. For if my money be wrongfully taken away, and he that taketh it doe make plate thereof, or doe convert my plate into money, I cannot seize the same, for that money is undistinguishable from other money of that coyne.

If a Butcher take wrongfully my Oxe, and doth kill it, and bring it into the Market to bee sold, I may not seize upon the flesh, for it cannot bee knowne from others of that kinde:12. H. 8.9. b. 10. a. Bur if it bee found hanging in the skin, where the marke may [Page 127]appeare, I may seize the same, although when it was taken from me it had life, and now is dead.

So if a man cut downe my Tree, and square it into a beame of timber, I may seize the same, for he hath neither altered the nature thereof, nor added any thing but exterior forme thereunto. But if he lay the beame of timber into the buil­ding of a house, I may not seize the same, for be­ing so set it is become parcell of the house, and so in supposition of Law after a sort altered in his nature.

Againe, by consideration of the nature of the matter or materiall causes of things, the law doth frame sundry differences; as if I deliver unto one a piece of cloth of twenty yards together to keep, and restore it unto me when it shall be demanded, and the party will cut it into severall yards and pieces of cloth, hee hath not altered the matter thereof, nor diminished the quantity, and yet if he tender the same unto me I am not bound to accept thereof, but may recover my damages for that wrong so offered unto me; for although in matter and substance it be the same, yet it is alte­red in forme, and impaired in the use.

So if he take my piece of plate,18. E. 4.23. a. b. Wrecke. and breake it into pieces, &c.

Likewise the Statute made in the time of King Edward the first concerning Wrecks, hath ordain­ed that if a Ship be wrecked, if any living thing therein escape alive, it shall not be adjudged; but that the Merchandize therein be viewed and pre­served for the owner, if he come to challenge the [Page 128]same within a yeare and a day. But what if in such case the Merchandize be victuall, as fresh fish; or fruit, as Orenges and such like, as will not last un­corrupt by the space of a yeare, if the Sherife in such case should sell those goods within the year, and be ready to yeeld the money to the owner, hath he offended that law? Certainly no: for the consideration of the nature and matter of those things in such case causeth the said law to be inter­preted contrary to the letter of the law: For the letter of the law commandeth a preservation, and in this case the Sherife hath done contrary,Pl. Com. 465 466. a. for he hath sold, and yet neverthelesse hath justly execu­ted that law.

Thus you see that the consideration of the mat­ter or materiall causes whereof the things con­troverted doe consist, hath great use in the deci­sion of law.

Materia in qua is onely subjectum accidentium, and therefore considerable in accidents onely, which subsist in their proper subjects, as Know­ledge in the Vnderstanding; the Vertues morall in the Will of man; health, strength, and agility in the Body: And as Materia in qua is said to be subjectum, so is Materia circa quam, objectum, both which are somewhat improperly attributed to the materiall cause, and are both so evident as I passe them over.

In consideration of a Monastery,Monastery. the matter in qua, or subject of that Title, is the persons where­of that Corporation consisteth; as the Abbot and his Monkes, that is, his Covent; The Prior [Page 129]and his Cofreers; The matter circa quam is com­prised in their possessions.

In an Arbitrement (of which I shall speake more hereafter) the matter in qua are the parties at strife,Arbitrement. circa quam the thing whereof the contro­versie riseth, reall or personall: The materiall cause ex qua is most eminent, and most eminent to be found in things corporeall, having of them­selves substance; and in things incorporate, that which is loco gener is in descriptione, in both which as there is genus propinquum, and genus remotum, so is there materia remota, & materia propinqua.

As a Fine whereby lands or hereditaments are conveyed, is said to bee a concord,Fine. for the entry thereof is, Est concordia talis; but this is genus re­motum, or materia remota: for an Arbitrement is also a Concord, a Contract is a Concord: but to say it is a concord of Record, is to adde genus pro­pinquum. And thus much touching the materiall cause.

As touching the formal cause,The formall cause exem­plified. it is either as hath beene said, substantiall or accidentall: The for­mall substantiall cause in things of life, is that which is the fountaine of life and motion: In things which are without life, that are simple and uncompound; it limiteth their bounds, and is the cause of their being: In things that are compoūd it is the convenient knitting and union of the parts. The formall cause entreth the definition or description loco differentiae, bringing and adding particularity unto the generall, untill it doth ful­fill a perfect definition or description, and there­fore [Page 130]as one saith well, dicitur forma à formando: Differentia verò quia differre facit. The forme is said to bee Modus quidam materiae, quo sibi contin­gat, ut hujus vel illius specieie capiat nomen: And for­ma dat esse rei, and that esse is nothing else but ex­istentia formae in materia, ea (que) plus affert ad essentiam rei quàm materia, est enim ipsamet essentia aut certè praecipua pars essentiae.

In the Cōmentaries of M^r. Plowden in the Lord Zouches case,Claime. a claime is thus described; A Claime is a Challenge by a man made of the property or ownership of a thing which he hath not in posses­sion, but is detained from him, where the genus is Challenge, but to expresse what manner of Chal­lenge, there is added this difference, namely, of the property and ownership of a thing detained, which is loco formae: So three of the causes are comprehended in that definition or descritpion: The materiall cause de qua, viz. a Challenge, circa­quam, of things detained: The formall cause the property of ownership, the efficient cause by a man wronged, onely there wanteth the finall cause which is twofold, 1, to manifest that pro­perty, 2, to reduce the same propertie backe a­gaine to him for whom the claime is made.

In 28.Cond. of Ob­lig. H. 8.17. a. Dyer. The Condition of an Obligation is thus described: The Condition of an Obligation is an assent of the obligee in defea­sance of an obligation made for the advantage of the obligor, where the matter thereof is an as­sent, the forme a defeasance, the efficient cause the obligor and obligee, the sinall cause the ad­vantage of the Obligor.

A Contract is an agreement betweene parties concerning goods or lands for mony or other re­compence,Contract. D^r. Stu. c. 24. fo. 103. a. where the generall matter ex qua is the agreement, which is clriesly respected in con­tracts: the matter circa quam, Com Brow­ning & Be­ston. 141. a. concerning goods or lands: the forme or difference, for money or o­ther recompence, for that maketh it a contract; for the want of recompence causeth it to bee but nudum pactum, unde non oritur actio. The causes ef­ficient,Com. 141. the parties contracting; The finall cause Bracton doth notably expresse,Bract. lib. 3.8.2. f. 100. Inventae sunt hujus­modi stipulationes & obligationes ad hoc, ut unusquis (que) habeat, & sibi acquirat quod suum interest.

In the Reports of my Lord Dyer, 16. El. 336.Consideration b. n. 34. a. A Consideration is thus described; A Consideration is a cause or occasion meritorious requiring mutuall recompence in fact or in Law: where the matter is an occasion meritorious, the forme mutuall recompence, &c. not to trouble our selves over long in this kinde.

Secondly, in consideration of the formall cause there is to be observed, That when division or distribution is made ex causis, those divisions which doc proceed of the formall cause are most essentiall, whereof I shall shew some few instan­ces or examples.

Commons being divided according to their materiall causes, are either Commons of pasture,Commons. Commons Estovers, Common of Turbary, &c. But being divided according to their formall cau­ses; all Commons are either Appendant, Appur­tenant, or in grosse.

If you distribute Conditions according to their materiall causes,Conditions. or things whereof they are, then we say they are conditions reall, which are annexed to the estates; There are also conditions personall, annexed to personall contracts, as to Obligations of all kinds, promises, covenants, and other contracts: But being divided according to their forme, There we may say, that all condi­tions are either possible or impossible: and im­possible conditions are voyd in Law: All possible conditions are either lawfull or unlawfull; and unlawfull conditions doe make the contract also voyd, whereas impossible conditions are onely voyd themselves, but the contract standeth single: all lawfull conditions are either precedent or sub­sequent, and all those conditions which are an­nexed to estates, are either by way of encrease of estates, or by way of defeasance of estates.

All considerations are either executed with a recompence past,Consider. or else executory with a re­compence after to bee made and performed; And this Division is ex causa formali.

In as much as the forme giveth the essence, it was said of Vlpian the Romane Lawyer, out of the rules of Logicke, That mutata forma propè inter­imitur substantiarei: For so in the former exam­ples wee see, that if a man take my Barley and make Malt thereof, it cannot be seised by the for­mer Owner; and yet neither matter, quantity nor outward forme is lost, but it is become a thing of another nature and vse, because the inward forme (to speake as Morall Philosophers) whereof de­pendeth the use, is changed; for Morall Philoso­phy [Page 133]doth not so curiously observe the naturall causes as Naturall Philosophy; but according as to the information of manners: So if a man of any peece of cloth which he had to keepe contai­ning 20. yards in one whole peece, will cut the same into 20. severall yards and peeces; The mat­ter nor the quantity is not changed, and yet if hee will restore the same peeces, it is not lawfull resti­tution, neither am I bound to receive it.

If a man possessed of 20. packes of Wool, by his last will and Testament devise and bequeath all the said Wooll unto 1. Stile, and after the Testator cōverteth the same wooll into cloth and dieth possessed of the same cloth. 1: Stile the De­visee of the Wooll shall not have by Law the cloth made of that Woll, for that the forme of the Wooll is changed, notwithstanding the matter doth remaine, and it is turned to a thing of another nature; and the making of the said Wooll into cloth by the Testator himselfe is a countermand of the said last will and Testament. So it is also of things incident, as if the principall thing whereunto another thing is incident, appen­dant or belonging, be changed in nature, the inci­dent is lost and altered: As if a man have a dwel­ling house whereunto there is a Common of E­stovers belonging (which is wood for firing to be burnt in that house) if this house by casualty of fire or tempest be burned or blowne downe, or taken downe, and a new be built in another place neere, or in another forme, the Common of Esto­vers is lost, and not to be used in this new house, [Page 134]for this is not the former house, but another house unto which the said Estovers cannot be­long; but if the said first house were not wholly pulled downe but repaired, or if another new house be built upon the same foundation, and in the same forme with the former; The Common of Estovers remaineth with the new house, for that in judgement of Law is the same house: and such building being upon the former foundation is but a reparation.

But here a difference is to be observed, that if the thing incident doe not belong to the principal thing, as it is in nature a speciall thing, but in the generall; then although the said principall thing be altered in specie, the generall remaining, the thing incident shall remaine to such generall: As if a man have a water-corn-mill, unto the w^ch hee hath a Mill-leat or water-course belonging comming thorough the land of another man unto the said Mill. Now if hee change the nature of the said Corne-mill, unto a fulling-mill, or è con­verso, wherein both forme and finall cause, name­ly the use is altered; it hath beene much disputed in our time, whether the said water-course did lawfully belong unto the said fulling-mill, as it did when it was a Corne-mill? for the owner of the land where thorough the said streame did runne, and diverted the said water-course, preten­ding that he might lawfully do the same, for that the owner of the Mill had changed the nature of the Mill; and the prescription to have the sayd water-course is thereby altered: But it was ad­judged [Page 135]that the said water course did still belong and remaine, and so ought unto the fulling-mill, as it had formerly done unto the Corne-mill, for that it did not belong unto the Corne-mill, as specially unto a Corne-mill, but it did belong un­to it generally as unto a mill going or driven with water, and not otherwise.

And thus much may suffice for the considera­tion of the formall cause, as it is the essentiall and substantiall cause.

The Law also considereth accidentall formes, for the Law prescribeth a forme in all abjurati­ons; so likewise the Law prescribeth a forme how homage shall bee made by the Tenant unto the Lord: And so likewise of Fealty, both which Littleton doth expresse: The Law prescribeth the forme how Battaile in a writ of right, and in an Appeale shall be waged and performed: So like­wise the Ecclesiasticall Lawes prescribe formes of Consecrations of Churches, Chappells, &c. of Parsons, Orders, Institutions, Inductions, and such like.

All Lawes doe retaine some formalities which may not be altered, as in the Common Lawes of this Realme, we have our formes of Writs, Plea­dings, Entries of judgements, and sundry other formes and ceremonies ordayned, which with­out great and urgent causes cannot be altered.

These outward formes are nothing else, as one describeth, then modi quidam rebus agendis praescrip­ti, or as another describeth, Ordinatae series rem ad substantiam deducentes: And concerning these [Page 136]outward formes and solemnities, these rules are observed and prescribed; 1, formae praefinitae omissio reddit actum invallidum: Procurator, Cod: de Pro­curatore. Le: diligenter in Princip: ff. de mandatis. And againe, Qui formam praetermittit jam aliud fa­cere videtur: And thus much concerning the for­mall cause.

As touching the efficient cause;The efficient cause exem­plified. the impulsive inward causes of all crimes are commonly these, spes lucri, impunitatis, vindictae, malitiae, odij, &c. The outward, the accessary before the fact, which is the abettor and instigator thereunto.

The sufficient and necessary cause of a Cor­tract is casent of parties,Contract. for in Contracts the consent is chiefly to bee regarded, as hath beene said.

And in Mariage Consensus, Mariage. & non Concubitus matrimonium facit: C: Nutias, de Regulis Iuris. And as Bracton, lib. 1. ca. 5. ff. 7. alleageth, fit per mutuam utrius (que) voluntatem.

In the worke there are both principall and co­adjuvant causes:Appropriatō. In an Appropriation of a Church the efficient causes are, The Ordinary, the Patron, and the King, and they ought to agree in the act, & sunt Actores hujus fabulae: The Ordinary, infe­riour or supreme, for hee is the principall Agent therein, because he hath the spirituall jurisdiction; And the Act of the Appropriation is a thing spi­rituall: And the Ordinary saith,Com. 498. appropriamus, consolidamus, & unimus, as the principall Actor in the cause: The Ordinary may bee termed there­fore the principall efficient cause, and the other [Page 137]the coadjuvant cause. These the Pope in ancient times as supreme Ordinary then permitted, used to doe; and these as supreme Ordinary may the King doe, but alwayes with the consent of the Patrone, who is a coadjuvant efficient cause: the formall cause is the consolidation of the Incumben­cy and Patronage into one person capable of spiritu­all charge: and the finall cause to make a perpetu­all Incumbency.

The efficient causes of an Acts of Parliament,Act of Par­liament. are the assent of the three Estates; namely, first of the King; secondly, of the Lords Spirituall and Temporall; and thirdly, of the Commons; and each without the other cannot perfit this worke; and yet untill the Royall assent it is but as an Embrio in ventre matris, 4. H. 7.9. b. Com. 79. a. and by the Royall Assent comming last, it taketh life and vigour.

Writing, sealing, and delivery,Deed. Com. 108. b. 22. H. 6.45. b 1. H. 6.4. b. 2. E. 4.3. b. are the effici­ent causes of a Deed, all must concurre, and each without other is fruitlesse; but the complemen­tall act which commeth last of all is the delivery, and thereby the Deed receiveth his perfection.

If divers come together to doe a murther,Murther. al­though one alone doe give the wound whereby death ensueth, yet are they all which are present and consenting to the act, Principals and efficient causes of this murther; he that striketh is the prin­cipall agent, and the rest coadjuvant: and yet al­though one gave the stroke, yet shall it be adjud­ged in law the stroke of every of them, given by him which gave it, as for himselfe, and given of the [Page 138]others by him as their minister and instrument, and yet all equall in degree as principals, and not accessaries:Com. 98. a. and yet as you see not equall in de­gree as efficient causes.

If a man and a woman be present,Ravishment. with purpose that the man shall by violence carnally know the body of another woman there also present, a­gainst her will, and the man doth the fact in the presence of the other woman, she that was so pre­sent, as well as the man, shall be a Principall Ravi­sher; the one, viz. the man, the cause agent, and the other coadjuvant: and so one woman may be a principall to the ravishment of another.

Livery and seisin is the instrumentall efficient cause of the conveyance of a Freehold estate in land,Casuall. and sufficient alone to performe the same, and yet is it not the sole cause, for it may be con­veyed by other meanes, as by fine, bargaine and sale, by devise, and otherwise.

There is also an efficient cause casuall:Casuall. As if a man intend to doe an unlawfull act, and in doing thereof another hurt ensueth, not intended, but by chance, cleane beyond all expectation or de­fire, yet shall he be said the author of that act not intended, so happening by chance, that did the first act.

This may suffice to exemplifie the cause effici­ent:The finall cause exem­plified. There resteth the finall cause, of the which I will shew some examples, as I have done in the rest. Many arguments are drawne from the finall cause, and of much use in the law.

The end and finall cause of the law generally [Page 139]taken, as Bracton well affirmeth, is this, Finis legis est ut sopiantur jurgia, & vitia propulsentur, & ut in regno conservetur pax & justitia. Bracton li. 2. cap. 2.

The finall cause of an action is, as likewise the same Bracton affirmeth, Vt non liceat unicuique se sine Iudicio vindicare, & quod sibi ablatum est per Iu­dicem reposcat.

The finall cause why also the same ought to be by writ, is, Quòd sine brevi non debet quis experire in Iudicio, nec mutari potest petentis intentio vel modus petendi. Brac. 102. a. Le. de Pro­cura. Attorney.

The end why Attorneyes are permitted in Court, or a man to answer by Baily in an Assize, or to pursue or defend by Guardian, is, Vt qui re­bus suis superesse vel nolunt vel non possunt, per alios possint vel agere vel convenire.

The finall cause why an Attorney is required to a Grant, is that the Tenant may know to whom he ought to be attendant to pay his rent,31. H. 8. b Attornem. 60 2. E. 6. d. Att. 45. or to do his service, so that where there is no attendancy required, there needeth no attornement.

The finall scope and end of the Averment of a Pleading,Averment. is to reduce matter traversable to a cleere and certain issue: and therefore if the mat­ter pleadable be not answerable or issuable, there needeth no Averment. 36. H. 6.17. b.

The finall cause why Wardship was ordained,Wardship. is, Vt qui per aetatem se ipsos defendere nequeant, ab a­liis defendantur. §. Est autem. Institu. de tutela. A­greeably saith Bracton, Quosdam oportet esse sub tu­tela & cura aliorum; eò quòd se ipsos regere non norunt.

The end why writings were made betweene men in their contracts,Bract. lib. 2. cap. 16. b. Le. 4. ff. de pignatoribus. Livery. was as the same Bracton al­ledgeth, Fiunt aliquando donationes in scriptis, sicut in chartis ob perpetuam memoriam, propter brevem ho­minum vitam, & ut facilius probari possit donatio.

So the cause why Livery and Seisin was ordai­ned in the Law, and first invented, was because it is a thing notorious, that the people might take knowledge of the passing of estate of most ac­compt, and be the more able to try the same when they should happen to be impanneled on a Iury for that purpose.

It would be over tedious to heape up more examples, which almost are evident in eve­ry Title concerning this matter.

As we doe consider the end of things at the Common Law, so also in Statute Lawes the end and scope that the makers of such Lawes aymed at, is of speciall regard in the interpretation of those Lawes, and often considered by the Iud­ges, unto whom power of interpretation and ex­position of those Lawes is given; as upon perusall of sundry cases grounded upon Statute learning will most evidently appeare.

It often happeneth that the finall causes of things are more than one, and sometimes many, and some of them subalterne each to other, and sometimes distinct, whereof ensueth this ex­ception to the generall rule, Sublata causa tollitur effectus: For if there be divers finall causes, al­though the one be taken away, yet the effect re­maineth, [Page 141]if one of the causes doe remaine: As for example, The finall causes of mariage are three, Generatio Prolis, Conservatio Domus, Solatio Vitae: and although hope of issue be taken away,Mariage. yet the mariage subsisteth firme.

The finall causes of Arbitriments and Awards are alledged principally to bee two; first,Arbitriment 19. H. 6.37. b Nedham. 8. E. 4.10. a Laken. 8. E. 4.12. a. Yelverton. every Arbitriment is ordained to make a finall deter­mination, and to appease the variances, strifes, and debates betweene the parties reforred unto them.

Secondly, 2 every Arbitriment is ordained to reduce that which was uncertaine,6. H. 4.6. a. Hanford. 4. H. 9.17. b. Weston. 10. H. 7.4. a. Ayde. 17. E. 3.47. a 21. H. 6.37. b by the divers allegations of the parties, to certainty: and every of these ought to concur in every good award.

So likewise our Bookes doe generally affirme, That in Actions where Ayde is grantable to the Tenant or Defendant, that the same is done for two causes; the one for feeblenesse of estate of him that prayeth Ayde; secondly, for the losse or detriment that may come to him of whom the Ayd is prayed.

So the finall causes why ayd is granted of the King upon prayer thereof, are these,2. H. 7.8. a. 4. H. 6.18. b. 9. H. 6.2. a. 3. 22. E. 4.21. a Quisque auxi­lium petit à Rege, oportes quod sit per cartam Regis, de dono aut concessione rei petitae, juxta effectum Statuti de B [...]amis. Secundò, Vel aliter propter salvationem reversionis Regis, vel alicujus tituli sui, Tertiò, Vel aliter propter debilitatem status sui. Quartò, Vel ubi Rex habere possit detrimentum: And any of these suffice to grant the Ayd.Confirmation

The finall causes wherefore a confirmation is [Page 142]behoovfull, are set out by Bracton to bee these: Quando donatio sit tantum bona pro tempore, Bract. l. 2. fol. 58. & potest confirmari ab haeredibus, vel alijs qui jus postea habent. Secundo, Vel quando nunquam absolutè fuit status bo­nus, sed talis qui potuit evacuari. Tertiò, Vel cum quis rem alienam dederit, confirmatio requirenda fuit veri Possessoris seu Domini.

There are three finall causes of a Warranty of lands,Warranty. &c. First, Voucher to recover in value, when the Tenant of the Land is impleaded by a stranger: secondly, Rebutter, to represse the par­ty and his heyres that made the Warranty, if they should chance to sue: and the third, Warrantia Chartae, by the Iudgement; in which Writ the lands shall be bound to a Recovery in value, pro loco & tempore.

As it was said at the beginning, that the end is alwayes the first thing in intention, and the last in execution, so are there things destinated to their end, and once being applyed thereunto doe alter their nature and become of another considerati­on: As in a former proposed example; If a man cut downe my Timber Tree, and square it of pur­pose to make a beame for a house, I that am the true owner may seize the same, notwithstanding it be framed for the building. But if it bee laid in the building, it may not bee seized by the owner, although the building be not perfected: for now it becommeth parcell of the house or building, as hath appeared in the former example. But if a man prepare all materialls for building upon his land, and is ready to build therewith, but dyeth [Page 143]before it be erected, those materialls shall goe un­to the Executor or Administrator, and not unto the Heyre, who should have had them had they beene laid in the building, because they were de­stinata tantum, quae pro factis non habentur.

The finall cause in all humane actions is of sin­gular regard, for that all things attempted by men have their end; and the utility of the thing is measured by the end thereof; wherefore it is said well by one, Vtile ex fine colligimus; quicquid enim utile est, id alicujus rei consequendae causa utile oportet esse. In laude etiam & vituperatione finem respicimus, cum mult is in rebus non tam referat quid facias, quam ob causam facias, ita ut factum ex fine laudetur vel vi­tuperetur, & homo rectè dicitur potissimam causarum omnium esse finem: And whereof we say vulgarly, ‘Exitus acta probat, finis non pugna coronat.’ And many times the name and denomination of a thing is drawne from the finall cause;Fine. as a Fine u­sed for the assurance of land, dicitur finis, quia finem litibus imponit.

Sometimes the Lawes regard the beginning of anact, Origo rerum attendenda est; sometimes the media or meanes to attaining it; and sometimes the end for which it is atchieved: To enter into discourse whereof in this place would be imperti­nent: and therefore by way of Law-examples thus much to have said of the causes shall suffice.

And thus much touching the reasons drawne from sundry parts of the Art of Logicke, proving [Page 144]the necessity, or at least the utility thereof in the studies of the Lawes of this Realme. Now resteth that we propound some places out of the bookes of our Reports of our Common Law decisions and determinations of Cases, where the use of Logicke hath either beene required or admitted and practised. And although this bee evident in the most notable arguments at large in the books of the Law, where sundry reasons drawne from Logicall invention and Topicke places doe abun­dantly appeare to every one which will or can ob­serve the same; yet in this place I will produce those instances wherein the same are either na­med and expressed, or admitted and apparantly practised.

Where it is discoursed in the Reports of Sir Edward Coke, which Acts of Parliament are gene­rall, which are speciall; I finde observed these words, Statuta generalia, & generale dicitur à genere, speciale dicitur à specie; And which are genus, species, and individuum; know ye that Spiritualty is genus, a Bishopricke or Deanary, &c. are species, and the Bishopricke of Norwich, the Deanary of Norwich, &c. are individua; sic dicta, quia in partes dividi ne­queant: And out of that deduceth hee to your understanding what Acts of Parliament are ge­nerall, and which are speciall. So there you see two of the most eminent Predicables remem­bred, Genus & Species, and unto them annexed the Individuum, whereof the Species is affirmed.

In 11. H. 7.23. a. Debt per Ob­ligat. An Action of debt was brought upon an obligation, where the obligation was en­dorsed, [Page 145]upon this condition, that if the defendant did make such estate to the plaintiffe of certaine lands before such a Feast, as the counsell of the plaintife should advise, then the Obligation should be voyd, the defendant pleaded, quod con­silium querentis, non dedit ei advisamentum, before the said Feast; now whether this plea is sufficient or no, or whether he should say, nullum consilium dedit advisamentum, or that consilium nullum dedit advisamentum; for it seemed that those words con­silium non dedit advisamentum, were not generall enough, of which opinion there was Bryan; so that admit that the plaintife had foure men of his counsell, and two of them gave counsell, and two of them not; here consilium non dedit advisamentum is true, eò quod duo non dederunt, but that nullum con­silium dedit advisamentum, is false apparantly, In that case when two of them had given their ad­vise; where hee sheweth that universalis negativa, and particularis negativa may stand together, for proofe whereof he citeth the Sophisters verse, ‘Prae contradic, prae contrar, prae post (que) subalter:’

Accidents may bee considered in abstracto, as they are without subject,Coke lib. 10. fo. 31. and in their owne nature of themselves; And also they may bee considered in concreto, as they reside and subsist in their pro­per subject, and these are Logicall tearmes, and yet used in the Law.

Although the Common Lawyers of this Realm using a continued speech, & non concisis argumen­tis, [Page 146]yet doe they observe very oft the formes of Arguments used in the Schooles, as Sillogismes, Enthimemes, Inductions, Examples, Sorites, Dilemata, &c. as may be proved by sundry instan­ces: And first of Sillogismes.

In Shellies case the third point or question of the case on the part of the plaintife, was reduced by them that argued of that side into a Sillogisme thus;

That which originally vested in the heyre and was not in the Ancestor vested in the heire by purchase,

But the use (spoken of in that case) vested in Richard Shelly (who was brother and heire and was never vested in Edward Shelly the Ancestor,

Ergo,

The use vested in Richard Shelly by purchase.

A man brought an action of trespasse against the Executors of his Ancestors,20. H. 7. b. for taking up and carying away of a Fornace which was fixed and annexed to the Freehold with morter, and it was held by three of the Iudges, Read, Fisher, and Kingsmill, that the Action would lye, and that the taking away thereof was wrongfull, and their reason is there by the Reporter reduced to a Sillogisme; in this manner:

Those things which cannot bee forfeited by Outlawry in a personall Action,Major. nor bee attached in an Assise, nor distreyned for rent, those things the Executor cannot have,

But a Fornace fixed,Miuor. a table fixed in the ground with poasts, or a pale set in the ground, or bedsted of timber fixed to the ground, doores or windowes, or such like fixed to the ground or freehold, cannot be forfeited, nor attached, nor distreyned;

Ergo,

The Executors shall not have such things.Con:

Many reasons are proposed in the case of the Postnati, and Arguments framed and composed Sillogistically in Calvins case, as thus;

Every one that is an Alien by birth, 1 may be or might have been an enemy by accident, but Calvin could never have beene at any time an enemy by any accident, ergo, he cannot be an Alien by birth.

Whosoever are borne under one naturall legi­ance, 2 due by the law of nature to one Soveraigne, are naturall borne subjects, but Calvin was borne under one naturall legiance, and obedience due by the law of Nature to one Soveraigne, Ergo, He is a naturall borne subject.

Whosoever is borne under the Kings power and protection is no Alien; 3 but Calvin was borne under the Kings power and protection, Ergo;

Every stranger borne must at the time of his birth be amicus, 4 or inimicus, but Calvin at his birth could not be inimicus, because he was subditus (and amicus properly he cannot bee called, for that is proper to an Alien freind that is in league; So Scotia where hee was borne cannot properly bee called solum amici, Ergo,

Calvin is no Stranger borne.

Whatsoever is due by the law of Nature can­not be altered; but legiance and obedience of the subject to the Soveraigne is due by the law of na­ture, ergo, it cannot be altered.

Whosoever at his birth cannot be an Alien to the King of England cannot be an Alien to any of his Subjects of England: 6 But Calvin at his birth could not bee an Alien to the King of England, Ergo, He could bee no Alien to any of the sub­jects of England. Coke li. 7.24. b. 25. a.

And thus much may suffice for example onely to point out the continuall and frequent use of Sillogisticall dispure in our pleadings and Law-Arguments.

I will next proceed to treat of the choice and election of Propositions and Principles; and like­wise to exemplifie the same by sundry examples out of the bookes of the Common Law, whereby our Student may be the better furnished and ad­apted with matter fit for Argumentation.