CHAP. 1. The definition, etymologie, division, per­fection, and imperfection of Laws: What is required to the making of them, and of their necessity.

MEaning to treat first of Laws in general, and next of the Common or Municipal Laws of this Kingdom; I conceive it cannot be unprofitable for an Introduction un­to this intendment, to set down the definition of a Law: whereof Justi­nian hath delivered three, derived out of Demosthenes, Chrysippus, and Papi­nian.

One is, that a Law is said to be 1 that, whereunto men ought to yield obedience, as in other respects, so espe­cially in this: because it is an inven­tion [Page 2] of the Gods, a decree of Wise men, a correction of offences committed, either wittingly or ignorantly, a Co­venant of the whole Commonwealth with one accord, after the direction whereof every Citizen ought to order his life. The other is, that the Law 2 is said to be a Soveraign of all things, both Divine and Humane: That is, a Commander, a Guide, and a Square both of good and bad, enjoyning that which is fit, and forbidding the con­trary. The one of these, is rather a description, than a definition; and it describeth rather the Natural, than the Positive Law: And the other is fitting rather to an Orator, than a Lawyer. We may therefore let them pass, and proceed to the third; which 3 setteth down the Law, to be a ge­neral determination of Wise men, a Comptroller of Faults either escaped through ignorance, or committed up­on wilfulness: And it is a general agreement of the Commonwealth. Jason observeth, that the Law is a general Commandment in three re­spects: either because it is founded upon a general Authority; or because [Page 3] it belongeth to, and bindeth all; or else because it is intended general for the profit of all. Cicero defineth the 4 Law to be a certain reason flowing from the Divine mind, which doth per­swade that which is right, and prohi­bit the contrary. And Plato saith, that 5 the Law obtaineth a name like to the name of the mind. But whilst the Law is defined by the Divine mind, it seemeth (as one saith) to be defined by that which is more remote and ge­neral, than subject to common capaci­ties. Yet are these definitions in some sort true, being rather referred to the eternal Law, than to the positive and humane Laws, as shall be shortly shewed in his place. In the mean time, for that these (as the former) are, as was said before, rather de­scriptions than perfect definitions; to come more near to the purpose: It may be said, that humane Law is an 6 Order and Ordinance including the Rule and Reason of Governing, and giving to every man, that which is his due; directing to the end of publique good, determining punishment to the Transgressors, and reward to the Obe­dient. [Page 4] Therefore to conclude; humane 7 Laws are nothing else but the ordi­nances and agreement of Wise men, concluded by publick Authority for the peace and profit of the greater part of the people living together in society. It is said [for the greater part] be­cause no humane positive Law is so generally good unto all, but that it is hurtful unto some, by accident if not of it self.

If any do desire to know from The deriva­tion of the word Lex, which we call Law. whence this word Lex (which in English we call Law) is derived: Some will say with Isidorus, that it hath his etymologie, à legendo; be­cause 1 after the Law was written, it was wont to be read unto the people. But this is not so certain, in that the reading of the Law by way of promul­gation was but accidentary, and no essential part of the Law; although some have endeavoured to prove, that a Law could not be perfectly establish­ed until it were promulgated by way of Proclamation.

Others will derive the word Lex, 2 à ligando; for as much as Divines hold, that men are tyed in foro conscientiae, to [Page 5] the observation of the Laws, as well as they are bound under penalty to ob­serve the same: Yet Cicero concurreth with the first derivation, (but with a farther-fetch'd reason than the former) quod Lex idem sit, quod legendi, hoc est eligendi regula; the reason is, nam re­gula dirigendo, docet eligere. It may yet well enough agree unto both, for one saith, Habet Lex quod sit Regula, & quod sit obligatoria praeceptio. How soever these derivations of the word Lex, do stand false or true, it makes not much matter, so we leave them as more Grammatical and Conjectural, than certain and infallible.

The word Lex, which in English we A double signification of this word Law. call Law, hath in our language a dou­ble signification, or is taken two ways; for it is taken both for that which the Latines term Lex, and for that which they call Juris prudentia; the one be­ing the Art of the other: For Lex is the rule, and measure of things to be done, and to be left undone; but Juris prudentia, is the knowledge and me­thod of that rule: as Justice is the Execution of them both, which hath his force in giving to every man that [Page 6] which is his in praemio, paena, & debito. So then in the first sence the word Law is properly applyed; but in the second, it is somewhat largely extended; yet use and common opinion hath so ac­cepted it.

This Law hath for his subject and object the Rule of all Divine and Hu­mane things, (except God himself) who is the great Rule-giver and Law­maker; and he being Liberum agens, is subject to no Law; but his own Will is the perfect Law of Justice, which is the Fountain from whence all Laws are derived, to all things in Heaven and in Earth.

Law hath a threefold respect, and is divided according to the diversity of things to which this great Law­giver doth dispense Law: They are of three kinds, to wit, the Natural, Sen­sible, and Reasonable agents. To the first are referred the Elements, and all compounded things without life: They are guided by that Law which was imposed on them at the begin­ing, and they do never break it. The second, which is the Sensible agents, are all living Beasts, which are guided [Page 7] not with so forcible a Law of necessity as the first; for they are not ordained to keep their certain and setled stati­ons, but they do follow their own kind and appetite: wherein yet they do not transgress the Laws of Nature. The third kind of agents, called Rea­sonable, are Men and Angels, and they at first were created with a possibility of performing or not performing the Laws imposed on them.

According to these three forenamed A threefold Law. Subjects of Law, there is a threefold Law (as some say) given unto them; that is, the Divine, Natural, and Hu­mane: The first delivered by God, and written by the direction of his Holy Spirit in the Old and New Testament. The second, stamped and as it were engraved by him in mens hearts. The third, derived out of the two first; and devised for Government and Society amongst men.

Some others do divide Laws into four parts, that is, the Law of Provi­dence, 1 or the eternal Law of God, which is his wisdom, by which from Eternity he that is called Antiquus die­rum, hath pre-ordained all things be­fore [Page 8] their beginning, whereof St. Paul speaketh, when he saith, that Deus vo­eat ea quae non sunt, tanquam ea quae sunt. The second is, the Divine Law 2 which God hath given in his Old and New Testament, to conduct men unto their supernatural end, for his Glory and Service, and for their own final Salvation. Of this Jeremiah speaketh by the Spirit, and as in the Person of God, Dabo Legem meam, in visceribus eorum scribam eam. Of the third, which 3 is the Natural Law, the Apostle Paul maketh mention, Gentes quae legem non habent, naturaliter quae legis sunt fa­ciunt. Of the fourth, which is the 4 Humane Law, (warranted by Gods Word) the Apostle Paul likewise speaketh; Omnis anima potestatibus sub­limioribus subdita a sit: So that all these Laws have their warrant from Gods Word; save the Eternal Law, which was his will and wisdom, being from the beginning before any Law was written, or could be divulged.

Therefore next to the Eternal Law, The excel­lency of the Divine Law. the Divine Law springing from the same, hath his place and preheminence, before all other in Dignity and Anti­quity; [Page 9] because from it all other good Laws have their derivation and foun­dation, or else are squared by it; and for that it suffereth no mutation in it self: In amplitude, because it afford­eth the self-same Rules and measure to all Men, and Nations, without diffe­rence of Persons, Place, and Time, or any other such like circumstances by which other Laws are often altered. And of this Divine Law, the Decalogue or Ten Commandments, delivered by God unto Moses on the Mount, and by him to Gods people, is a Compendium, or full Epitome of all the rest; as unto which the rest may be reduced, as Conclusions drawn out of certain Prin­ciples.

The Law Divine delivered by God The Law of Moses, or of the Old Testament, more antient than any hu­mane Law. unto Moses, is in Antiquity before all Humane Laws: for though Pliny go­eth about to prove, that Ceres was the first gave Laws unto men, and as others attribute that honour unto Radaman­thus; yet Josephus writing against Apion, directly proveth, that Moses was the first did promulgate unto men, the Laws delivered unto him from God, and that long before those Law-givers, [Page 10] whom Isidorus nameth, as Pharonius to the Grecians, Mercurius Trismegistus to the Aegyptians, Solon to the Athenians, Lycurgus to the Lacedemonians, Numa Pompil. to the Romans.

The Law of Nature, is next to the The Law of Nature next to the Di­vine Law. Divine Law, in excellency, antiquity, immutability, and severity: because it began with mans Creation, it never changeth, being nothing else (as one defineth it) according to the part of the Law of Nature which is called se­condary, (whereof we shall have cause to speak somewhat in the next Chap­ter) but, dictamen rationis in rationabili creatura; therefore this Law of Na­ture secondary, is the effect of Gods Law in the mind of man, and the im­pression thereof; as a step in dust, is the effect of the foot which first framed it: And this secondary Law of Na­ture, is in some sort contrary to that first Law, which St. Paul calleth the Law of the Members, being a natural inclination to sensuality.

After these Laws followeth the Hu­mane or Positive Laws of men, which being the prescript and particular rules by which the actions of men should be [Page 11] reduced and conducted to their due ends, and this grounded on the Eter­nal, Divine, and Natural Laws, (men­tioned before) but yet still measured, and moulded by the reason, invention, and disposition of men, which is most commonly variable and diverse; no marvel then, if also the Laws of men (setled upon such slippery foundation of different reasons and affections) be also changeable, and subject to imper­fection; whereof Justinian in his Pre­face to the Digests, doth render the like reason: saith he, Sed quia divinae res quidem perfectissimae sunt; humani vero juris conditio semper in infinitum de­currit, & nihil est in eo, quod stare possit perpetuo: multas enim formas natura no­vas edere deproperat. No Humane Laws can be made absolutely perfect, no more than other Arts and Sciences can be perfected by men; since Art is the imitator of Nature, and even Nature her self is imperfect in her works. The conclusion therefore is short, and cer­tain; That those Humane Laws tend most (although hardly can they attain) to perfection, which do square most, and most depend on the Divine, Eter­nal, [Page 12] and Natural Laws. And on the contrary, those positive Laws of men, are most corrupt and unprofitable, which swerve most from them.

Since we see what Laws are per­fectest, and which are subject to most imperfection, let us a little consider what conditions are required in Hu­mane Laws to help them towards per­fection: They by Isidorus are described to be these; that is, that they be ho­nest, Certain con­ditions re­quisite to bring Laws towards per­fection. just, possible, according to nature and custom, convenient and agreeable to the time and place; that they be necessary and profitable, manifest and perspicuous, (lest by their obscurity the uncircumspect be intrapped) that they be not made for private profit, but for publick utility: Others require fewer (yet as effectual) qualities in Laws, that is, to contain honesty, ju­stice, possibility, conveniency; for the end of Humane Laws is, that by the dread of their punishment innocency may be safe in the midst of wicked men.

There are also certain habilities re­quisite Certain ha­bilities ne­cessary for Law-ma­kers. in those who are Law-makers, amongst which the School-men do [Page 13] chiefly esteem these three parts or po­tential faculties of prudence, Ebulia, Synesis, Providentia: The first is, the faculty of Counselling, and advising aright: The second is, the habit of judging soundly, (not so much the Cases of Law already made, as the Considerations of Laws to be made:) The last, which is Providence, being a fore-sight of future events; this hath two parts, Circumspection, and Cau­tion: the one being the consideration of Circumstances, lest any thing be de­fective in the provision of the Law; the other searcheth into the Incom­modities and Inconveniences whereto such Laws (or they for whose safe­guard it is made) may be exposed.

The Philosopher requireth to the What the Philosopher requireth in making of Laws. making of good Laws, Authority, Reason, general Justice, which is ho­nesty, and Agreement of the People. By the first the Law-maker doth bind, by the second he doth know, by the third he doth desire to make such Laws as shall be possible, and profita­ble, not for himself only, or for a few, but for all, or at the least the greatest number; for Suprema Lex, Salus Po­puli. [Page 14] The notions, and general rules of Nature do teach to shun that which is hurtful; but where the Naturalist or Moralist doth not perswade, the Poli­tician and Law-maker doth enforce. The Moralist doth indeed prescribe ge­neral Rules, and Precepts what ought to be done: But doth not shew so par­ticularly, how it should be done. The Rules of good and evil prescribed by Nature, and set down by the Mora­list, are by them both enjoyned to be practised, by and to our selves; but by the Politician, and Law-giver, those general Rules are applyed and accom­modated to the particular Laws of each Nation, to be fashioned not only for our selves, but for others. Therefore it is aptly said, Ʋbi Ethicus desinit, ibi incipit Jurisperitus; as in Nature, Ʋbi physicus definit, incipit medicus.

Though these positive and politick The necessity and utility of Laws. Laws of Men cannot attain to absolute perfection, yet that they are of evident utility and urgent necessity, I suppose no man doubteth. For both nature and necessity (the two raisers of Sciences and Invention) have as it were con­spired to direct, and require the use of [Page 15] these Humane Laws; because as it is natural unto men to desire and to like that which is others, and yet to dislike and abhorr other men; from whence come questions, controversies, quar­rels, opposition, and defence: so out of these doth arise an inevitable ne­cessity, to lay certain limits (which are Laws and Civil Constitutions) by which these inordinate desires, and designs of men (being full of distur­bance) should be bounded; and with­out which, as the appetites and affecti­ons of men are restless, and of them­selves unrestrained; so except they were confined and restrained by po­sitive Laws, the lawless wills of men would make society uncomfortable and unsafe.

CHAP. II. The differences betwixt the Laws of Na­ture, of Nations, the Civil and Muni­cipal Laws.

HAving said somewhat of the defi­nition and nature of Laws, (espe­cially of the Eternal, Divine, and Na­tural Law) it now followeth, that we should descend to discover the diffe­rences betwixt the Humane Laws of several sorts. These, by some, are divided into three branches, (from whence it is supposed that all other particular positive Laws do spring and grow:) The first is the Law Natu­ral, (whereof there hath been a little spoken before) this is defined, to be that which Nature hath taught all living Creatures: The second is the Law of Nations, which is received amongst all Countries and People: The last is the Civil Law, which every free Commonwealth ordaineth for it self.

Caius, a Civil Lawyer, divideth A division of Laws into two parts. these Laws but in two parts; that is, the Natural, and Civil Law: for some think, that whatsoever Law is Natural, the same is also the Law of Nations; and so on the other side interchangeably. The reason is thus; What else is the Law of Nations, A question concerning the former division. but that which natural Reason hath taught and perswaded all men, to be equally good for all? So that it is called National, or the Law of Na­tions, because all Countries have re­ceived it: Natural, because it had its beginning from natural Reason.

For the deciding of which doubt, The Law of Nature two­fold. it is to be understood, that the Law of Nature is twofold, Primary, and Secondary; the one being that which Nature (or rather the God of Na­ture) teacheth all living Creatures; the other, that which Nature teach­eth Men. The first, called the in­stinct of Nature; whereby it is com­mon to all living Creatures, by the instinct of Nature, to procreate, and to seek the preservation of their own kind; to avoid that which they find to present death and danger; to re­peal [Page 18] force with force; to seek things needful for sustenance, and the like. This in a general sence, is called Jus primaevum, or the primary Law of Na­ture: And this doth differ from the Law of Nations, which is a Law pro­per only unto Men, and not to other Creatures. But the Secondary Law of Nature, or of God, (for both is one and the same) containeth and comprehendeth the Precepts of ho­nesty, which God and Nature hath infused into Mans heart, at his Crea­tion; given only unto Mankind, and unto him from his beginning; as, to yield Religious reverence to the Supreme and Divine power, to exhi­bite love and duty towards our Pa­rents, and the like. This latter part of the Law of Nature, doth answer and concurr with some part of the Law of Nations, which likewise (as the former) is twofold, that is to The Law of Nations twofold. say, Primary, and Secondary. The Primary Law of Nations is that which natural Reason hath insigned all Nations, (as hath been expressed in the Secondary Law of Nature) therefore some have termed the Se­condary [Page 19] Law of Nature, the antient Law of Nations. But there is a Se­condary Law of Nations, which is no part of the Primary or Secondary Law of Nature; this cometh not by nature, but by a Judgment gathered out of experience and discourse, thereby collecting what is commo­dious for common society, and equal­ly behoofeful to all Nations; and this is not ingraffed in nature at first, but gotten and gathered by use and necessity, which makes thereof a Law: as, to punish offenders and wrong-doers, which is the first head of the Secondary Law of Nature, yet not a Rule or Law begotten or bred by Nature. But when the per­verse nature of Man could not con­tain it self in temperancy, then wrongs offered, publick necessity re­quired, that they should be punished who would hurt others, and trouble the common peace and society of Men; lest the like occasion of wrong doing should grow general, and so in the end hurtful to all: So by this Secondary Law of Nations, grew the division of Goods, the distinction of [Page 20] Properties, free Commerce betwixt Nations, common Contracts, and the like. By this we see, that the Secon­dary The secon­dary Law of Nations no part of the Law of Na­ture. Law of Nations is no part of the Law of Nature, and differing also from the Primary Law of Na­tions it self. Now let us see next, how the Civil Law differeth or is di­stinguished from these Laws of Na­ture and of Nations.

The Civil Law (or the appella­tion The name of the Civil Law taken two wayes. thereof) is taken in two seve­ral significations; for either it is in a strict signification, accounted parti­cularly and only for the Roman Law, first set down by Papirius, Papinian, Ʋlpian, and others, and afterwards collected into the Institutes, Pan­dects, or Digests, Novels Constituti­ons, and the Feuda, by Justinian's commandment: or else in a more proper sence, it is accepted for the particular Laws which every King­dom and Commonwealth doth con­stitute for it self. And although Caius, with other learned Civilians, do confess, that the Laws which every City doth make for it self, be properly intituled Jus Civile, quasi jus [Page 21] proprium ipsius Civitatis; yet the Ro­mans having gotten under their sub­jection the greatest part of the known World, gave Laws unto all Nations Conquered by them, which by a kind of Excellency they termed Jus no­strum, or Jus Civitatis. Therefore Justinian, after he had caused the Digests to be compiled, commanded his Judges, that these Laws should be used in all Countries; and that his Pretors of the East, of Illyria, Lybia, and other parts, should put them in practice: Whereby it came to pass, that the Roman or Imperial Laws were generally called the Civil Laws, and have for the most part (in most places) been ever since so observed. Whereas otherwise, in pro­per sence and signification, the par­ticular Laws of each free City and State, ought to be called their Civil Laws. But both these, that is, the Roman and Imperial Civil Laws, and The Civil and Munici­pal Laws do not wholly differ from, or depend on the Laws of Nature and Nations. the particular Civil or Municipal Laws of every City, Commonweal, or free State, do not wholly differ from the Laws of Nature and of Na­tions, nor wholly depend on them; [Page 22] in this, because the Laws of Nature and of Nations are permanent and perpetual, being alwayes the same without any alteration: But the o­ther, that is to say, the Roman Civil Laws, have been subject to many The Roman Laws subject to sundry mutations. mutations, alterations, and abroga­tions: So likewise all other Civil and Municipal Laws, have been, and are, according to the variation of Times, of States, and of sundry cir­cumstances.

For example, in the Roman Laws, The Laws of the Kings of Rome. whilst the Roman State was under the Government of Kings, they made such Laws as they thought fit for that time, the present state of the City, and their own purposes, which were all digested into one Volume by Sextus Papirius, (as is recorded by Pomponius:) But the force of these Laws ended with their Reign; and as soon as the Commonwealth was transported into a New State, at the first they could not frame any certain or constant Laws; for the Commons and Gentry opposing each other for The Laws of the Consuls and Com­mons of Rome. twenty years together, such Laws as were then made, did rather seem to [Page 23] cross and contend one with the other, than to concurr in any mutual harmony for the good of the Com­monwealth. For the Consuls made Laws according to the minds of the Senate, and the Tribunes of the peo­ple according to their affections; un­till they agreed to send certain Le­gates unto Athens, and other Cities of Greece, (famous at that time for good Laws and Government) that they might be better pleased with Foreign Laws, who envied and held not their own indifferent: Which done, they drew those Laws brought The Laws of the 12 Ta­bles fetch'd from Greece to Rome. from thence into Ten Tables, to which they added two more of their own; these they called the Twelve Tables, (being the grounds of the Roman Laws:) But yet two years after these Laws were brought to Rome, and established there, the Au­thority of the Decemviri (upon which the force of these Laws did depend) ceased and was extinguished, by the lust and licentious life of Appius Clau­dius, being one of them. And al­though those Laws of the Twelve Tables, continued afterwards as [Page 24] grounds of other Laws, yet were they still added to, and altered as the Roman State did change. For when The Empe­rors of Rome make and change Laws at their pleasure. the Emperors set up their Soveraign and supreme Authority, they made such Laws, Edicts, and Constitutions, as were answerable to their own ends, the succeeding Emperor often disannulling what his predecessor had ordained. And as they abrogated the Laws of others, so did they not long uphold their own; For who almost was there amongst them, that did not change their own Constitutions? Besides, as the state of the Empire The admix­ture of di­vers Laws in the City of Rome. grew greater, they were forced to alter their Laws, with admixture of their Decrees of the Senate, Statutes of the Commons, Ordinances of the Magistrates. As the Pretorian Laws (called Jus honorarium) which were of great force for the time, but of no long continuance; for they were founded upon the Authority of the Pretors, and did often end with their years. Thus the Roman Laws re­mained in much uncertainty, till the Reign of Adrian the Emperor, who with consent of the Senate, did cause [Page 25] these Laws to be made perpetual; whence grew the name of Edictum Adrian's E­dictum per­petuum in­fringed. perpetuum. But yet in divers succeed­ing Ages, sundry of these Laws were also abrogated; and even the Laws compiled in the Pandects and Codes, by Justinian's commandment, were some of them by him altered, and many taken away in a latter Book called the Authenticks. All which is alledged to shew the instability, change and uncertainty of the Ro­man Laws. The like might be said of the Laws of other Nations, which have been found uncertain in their grounds, and unstable in their con­tinuance.

Secondly, We may see that there is difference betwixt the Civil Roman Laws, and the Municipal Laws of other States: For though the Roman Imperial (called the Civil Laws) do bear much sway in most Countries of Christendom, and have place in All Coun­tries have some parti­cular Laws and Ordi­nances, diffe­rent from the Civil Ro­man Laws. their proceedings of Justice, (but least of any place within this King­dom of England) yet have all Coun­tries their several Customs, Statutes, and particular Ordinances, discre­pant [Page 26] in divers points from the Rules of the Roman Imperial Civil Laws: which is no marvel, since in the Di­gests there is delivered as from Papi­nian, some distinction betwixt the Roman Civil Laws, and the Preto­rian Laws made in the same City; For it is said there, that the Civil Laws did consist of the Statutes of the People, the Ordinances of the Senate, and Decrees of the Princes, with the Authority of Wise men: But the Pretorian Laws were those, which the Pretors did introduce to supply, to help, or to correct the Civil Law. So is there alledged in the same Digests (out of Paulus) another division of Laws: The first is the Law of Nature, the second is the Civil Law; the first is freed from Injustice, the second is deemed pro­fitable to all, or the greatest part of the City; and there is added, Jus The Preto­rian Law differing from, and correcting the Civil Law. honorarium, or the Pretorian Law, as if it were no part of the Civil Law; wherein it is said, the Pretor doth give Law, though he doth determine unjustly; having relation not unto that which the Pretor doth, but to [Page 27] that which is convenient for him to do. So that it is not to be wondered, that the Municipal Laws of every Country, do differ from the Civil or Roman Law; or that the Civil Roman Law hath not his full force in all Countries, or that it is not the only Law that governeth in any Country: Because the City of Rome it self, did admit some other Law to be administred within the City, than that which was called and accounted their own Civil Law, or Jus Civile. And where there was question made before, concerning the Civil Law, whether the same were only the Ro­man Laws, or as well other Munici­pal Laws? Some Civilians do distin­guish A division of the Civil Law. them into two parts; the Ro­man Laws they call, Jus Civile com­mune; and the other, Jus Civile par­ticulare: To the first they referr also some Municipal Laws, especially those Constitutions of the Empire, since it was translated to Germany, as the Aurea Bulla of Charles the 4th. Also the Constitutions and Edicts of The Munici­pal or Civil Laws of Ger­many. the German Emperors, in their Diets or Parliaments, which are reckoned [Page 28] and referred to the common Civil Laws, because they are ordained by Authority of the Emperor; and yet they are in true construction but par­ticular Civil or Municipal Laws, be­cause they bind none but such as are subject to the Empire, or to those places of the Empire for which they are made, and which do submit them­selves thereto.

So hath the Kingdom of France The Muni­cipal Laws of France. certain particular Civil or Municipal Laws, made in their Parliaments, (which were anciently the Councils of their Kings:) but when the Kings of France did separate their Councils of State from those Parliaments, yet the Parliaments have been held in cer­tain Cities of France, (as saith Brison President of the Parliament of Paris) at certain times of the year; The first and principal held at Paris, esta­blished by Philip the Fair, or as some say by Lewis Huttin his Son; the se­cond at Tholose, for Languedoe; the third at Bourdeaux, for Aquitain; the fourth at Grenoble, for Daulphine; the fifth at Dijon, for Burgoigne; the sixth at Rouen, for Normandy; the seventh [Page 29] at Aix, for Provence; the eighth for Bretaign, instituted by Henry the 2d. Anno 1553.

They have also Municipal and par­ticular The Muni­cipal Laws of Spain. Civil Laws ordained for the Kingdom of Spain, as those set down by Alphonsus the 9th. And the like for that and other Countries are ex­tant and in use.

The Kingdom of Scotland hath (as The Muni­cipal Laws of Scotland and of Eng­land, not al­together different. this Realm of England) several and particular Municipal Laws, differing from the Roman Civil Laws: As for the Laws of Scotland, they are not so far different from the Laws of this Kingdom of England, as divers do conceive; and that the Laws of Scotland are not altogether unlike these of England, (but in many points do concurr with them) is not impro­bable: For that there is a Book, con­cerning The Law Book of Re­gia Majestas in Scotland, like to Glan­vil's Book of the Eng­lish Laws. the antient Laws of that Kingdom, termed Regia Majestas; which, as some Students (having read the same) do affirm, (and as it is set forth in the Printers Epistle to Glan­vil's Book) do agree much, and in many places word for word with the said Glanvil's Book, and doth often [Page 30] vouch him: So that it is supposed the antient Laws of both these Realms did then agree, and do yet in most points; which have not been altered by Statute since in either of these Realms. Also King James in one of his Speeches (made to the Knights and Burgesses of the lower House of Parliament) did pronounce and de­clare, that the Tryal in the Chancery of Scotland, was brought from this of England, shewing the time, Author, and occasion thereof. Therefore it An opinion that the Laws of both these King­doms, may in main points be conveni­ently made all one. may be conceived, that there is not such great discrepancy or contrariety betwixt the Laws of both these King­doms; but that by due examination it will be found, that there is, or at least may be, a consonance betwixt them in many, if not in most points. But for the Laws of England, how they do differ from the Civil and other Laws, shall be shewed in the next ensuing Chapter.

CHAP. III. Of the grounds of the Laws of Eng­land, and how they do differ from other Laws.

OUr Laws of England do differ, as in name, so in divers other circumstances, considerations and con­ditions, from the Laws of other King­doms and Commonweals.

First, for the name; they receive a common appellation of the Common Laws of England; a name scarce given to the Laws of any other Na­tion: Why our Laws are called the Common Laws of England. Therefore whence it received this denomination of the Common Law, may breed some question. Some say, that it is called the Com­mon 1 Law, to distinguish it from the Laws of particular Customs, or of Customs allowed for lawful within this Realm: But this is not certain, nor scarce probable; as shall be shew­ed anon, when it shall be demonstra­ted, that these Customs allowed for Law, are rather made parts, than [Page 32] distinguished from the Common Law. Some others suppose, that it is called 2 the Common Law of this Kingdom, to make difference betwixt it and the Statute Laws; which as they are of another kind of constitution than is the Common Law, (as will be made evident) so are they of several sorts in themselves; as some of these Statutes are general, and ordained for all the Subjects; some are parti­cular, and made for the settling of particular mens Estates, and of parti­cular Trades, Corporations, and Fa­culties: Therefore these cannot be (nor may not be called) the Com­mon Laws of the Kingdom, (that is, common to all) but only in this sence, because they are constituted with the common consent of all. The third opinion is, that they are called the Common Laws of the Kingdom, 3 because all the Subjects of this King­dom must live under them, and may challenge them as their Birth-right, for the defence of their Estate, Right, and Liberty. In which sence also the general Laws of any Kingdom or Commonwealth may be called their Common Law.

Howsoever it may be a question, how at the first the name of our Com­mon Law came, or how the same may differ from the Statute Laws, or from any other Law allowed within this Kingdom; Yet it is certain that the The munici­pal Laws of England is the most proper Title of our Laws. Term and title of the municipal Laws of this land, is both proper to our Laws and doth include all our Laws, as well the Statute as Common Law. First, it is proper in that our Laws of this land are peculiar to this King­dom and the territories thereof (and thereto adjacent) being not elsewhere in use or allowed. Now for the Mu­nicipal Laws of this Kingdom (under which title the special and particular kindes of our Laws of England may The division of our Laws of England into several parts and grounds. be most aptlie comprehended) sun­dry persons have made several Di­visions thereof: Some have divided them into Customes, which is like to the Civilians Jus privatum, and into Statute Law; others into Common Law, Customes and Statute Law; This last Division consisting of three Another di­vision of the grounds and parts of the Laws of Eng­land. parts Seingerman (in his fundamental partition of our Laws) doubleth, by adding thereto another foundation [Page 34] and division of our Laws, which is the Law of God, the Law of Reason, and certain principles or maximes which (with the three former) he ma­keth as several grounds of our Laws of England. They which stand to the first bipartite division of our Laws, (setting them to stand only as it were upon two leggs) do conjoyn Custom with our Common Law; for they say, what is any Custom allowed by the Laws of the land but the Common Law of the land? since that the Judges (to whom delegation is made for the Whether Customs al­lowed for lawful be ground, or made parts of our Law. determination of civil Causes) do ad­mit those Customs to be pleaded be­fore them, and do give judgment for the same: yet the difference between them will be; first, that these Customs do not equally extend throughout the Realm, and therefore if they be in­corporated into our Laws, they are but private, and not our Common Laws: Secondly the Judges do ex officio take notice of the one, but not without a special pleading of the o­ther: So it may well be said in some sort that Customes allowed for Laws, or for lawful, may be made some part [Page 35] of our Laws, but yet I can hardly al­low them the honour, to be made grounds of our Laws, unless they be first reduced to certainties, and so be made as it were maximes. So are ge­neral received opinions by Custom, continuance, and approbation of au­thority and Judgment, made Com­mon Laws; whereto some add this rule, Communis error facit Legem. As for the other addition of St. Germans St. Germans division of the grounds of our Laws not allowed. sextuple division of our Laws of Eng­land, although he hath therein shew­ed some learning (yet without offence be it spoken) he hath mustered toge­ther divers things different in name, but the same in nature. For what is the Law of reason, other than the Law of God (if it be rightly under­stood) because what proceedeth from reason (not darkned with the clouds of error,) but such things as were cha­ractered in the soul by him, which first framed it, according to his likeness? And saith Seneca, quid est ratio? he answereth himself, naturae imitatio. Therefore that our Laws of England are composed and wholly framed on the Laws of God is more than may be [Page 36] said of them, or of any other humane positive laws; but that they do de­pend on them, and not mainly differ from them may be well and truly ju­stified.

Now for as much as there hath bene mention made of three principal parts of our municipal Laws, let us a little take some particular and several view of them what they are: they are said to be the Common Law, the Sta­tute The particu­lar parts of our Law ex­amined. Law, and Customs allowed for law.

The first, which is the Common Law of this land, consisteth partly of the collection of such laws as were allow­ed by King William the Conquerour, What Laws King Wil­liam the Conqueror allowed in England. who neither wholly introduced his Norman Laws, nor altogether allow­ed of the former, but out of the best parts of either, took that which was fittest for the time, and present go­vernment. The former laws which he allowed of, were such of the Saxons and Danish laws, as he found fittest for the time.

And first of the Saxons, who came into this Kingdom about Anno 449. whose King Ethelbert of Kent did con­stitute [Page 37] (as Beda saith) decreta judicio­rum, Some part of the Saxon and Danish Laws allow­ed by the Conqueror. cum consilio sapientum, quae con­scripta (saith he) Anglorum sermone, ha­ctenus habentur & observantur. The succeeding Saxon Kings did in their Wintenagemotes or conventus sapientum (which were in the nature of Parlia­ments) make diverse constitutions cum consilio sapientum & senatorum, cum Episcopis; as that Learned and indu­strious gentleman Mr. Lambert affirm­eth, who compiled some of them in­to one book, as the Laws of Inas, Al­fred, Athelstan, Atheldred, Canutus, Edgar, Edward the Confessor, and o­thers; out of which the Conqueror took such as he thought convenient, whereof some are enumerated by the forenamed Mr. Lambert, and by Ho­veden. Also Gervasius Tilburiensis, he The Conque­rors allow­ance of the former Laws. saith of the Conqueror: decrevit subje­ctum sibi populum viri scripto, legibus­que subjicere: propositis igitur Legibus Anglicanis, secundum tripartitam ea­rum distinctionem, hoc est Merchenleg, Daneleg, & West Saxenleg; quasdam re­probavit, quasdam autem approbans, &c. The first part of the Common Law of Eng­land. So then we see that King William the Conqueror took some of the ancient [Page 38] Laws of this land, which is the first part of our Common Law of England. The residue which came for a supply unto the same, sprang out of the judgments given since in particular cases upon arguments made before, and by the learned Judges of this Land.

The second part of the Municipal The statute law dif­fering from the Common Law, yet a part of our Municipal Laws. Laws of this land (though not pro­perly called but differing from the Common Law, as the Pretorian Law amongst the Romans did differ from their Civil Law) is the statute Law of this Realm, made by the King as head, with the Nobles and Commons, as members of this body politique.

This Law was invented to give speedy remedy and redress unto such suddain matters as were mischievous in the Commonwealth, the punish­ment and prevention whereof was defective, dispunishable, or not fully provided for, by the Common Law; the first of which statute Laws now extant was made in the nineth year The first sta­tute law that is now ex­tant. of King Henry the third. For the ma­king of Statutes and assembling of Parliaments (in which they were or­dained) [Page 39] he which will diligently read the ancient Stories of Malmesbu­rie, Huntingdon, Hoveden, and Math. Parisiensis (especially above others) shall find that there are no smal mis­takings in some things about the an­tiquity and true conceipt of their Cu­stoms and strength.

There is (according to the parti­tion of some) another part of our Law (or at the least, a derivative out of the same) that is, the Customs held for Law, or judged lawful, which have been allowed of ancient times Custom laws, ano­ther part of our Laws as some hold it. in particular Counties and places of this Kingdom, as in Kent they have many, and especially that of Gavel­kind throughout the whole Country, whereby as well the youngest as the eldest Son should equally inherit, which they reserved and retained by offering battel to King William the Conqueror. The Custom of Borough English is another, whereby the younger Son is only inheritable, and this is particular to some ancient Bo­roughs, and peculiar only unto them. There is likewise the Custom of Glo­cester Honour, containing many privi­ledges [Page 40] particular to that place. So have diverse other great Lordships, Mannors and some Corporations their particular Customs and special privi­ledges, which are therefore properly called priviledges, quasi privatae leges; How privi­leges are cal­led Laws. and these having by long Custom and consent had continuance and allow­ance, they are thereby made lawful, and in some sort stiled and reckoned as part of our Laws, although in some points they do differ from the rules of the Common Law. And there­fore the Civillians call such Customs, jus singulare, quod contra tenorem ra­tionis propter aliquam utilitatem, au­thoritate constituentium introductum est.

That the Laws of England do dif­fer from the Laws of other Coun­tries, there is no doubt; as there is no Country but hath some constitu­tions contrary to any other even of their neighbour Countries Laws.

But if any do demand how the Wherein the Laws of Eng­land do dif­fer from o­ther Laws. Laws of England do differ from other Laws, it may be found somewhat in their institution and foundation, more in their form and method, but most [Page 41] in the course of their proceedings and execution.

For the first it is apparent that the 1 Laws of other Countries (for the most part) are grounded, or do fetch their Rules from the Roman and Imperial The Laws of England take not their grounds from the Ci­vil Roman laws as o­ther laws do. Civil Law, but the Laws of England are not founded, nor do any way de­pend, on the Civil or Roman Imperial Laws. For the Laws of England take their grounds from the considerati­ons and Rules of reason, equity and general respects: weighing therewith what is convenient or inconvenient to the whole Commonwealth, or the greatest part thereof, and holding it for a general Rule to be safer and better to suffer a mischief than an in­convenience.

The second difference betwixt the 2 Institution of our Laws and the Laws of other Countries is, because the Laws of this Kingdom are not made The Prince doth not of himself a­lone make the Laws of England as the Empe­ror, and o­ther Princes have done. by the Prince only, as sometimes the Laws of the Empire and of some o­ther places were, where the Princes had both an affirmative and a Nega­tive power in ordaining Laws for the people under them. But in England, as [Page 42] the Laws concerning penalties in Criminal causes, or in Civil, cannot be enacted and established without the Kings Royal approbation: So doth not the King make these Laws without the consent of his Parlia­ment.

The Laws of England do likewise 3 differ from the Laws of other Coun­tries, first because the Common Law of England is not all written and cer­tainly set down; but doth rest much The Law of England not all writ­ten nor all set down in Method. as some say in Pectore Judicis; and also it doth differ in Method from the Ci­vil Law and from some other Laws, because it is not digested into Method by Titles, Chapters and distincti­ons. For the first, though it were to be wished that the Common Law were all written, and that it were so made certain (if that might be pos­sible) as it should not need to depend upon private and particular opinions; yet if that may not be, the inconve­nience is not altogether so great, as some conceive it: for all Countries Some coun­tries had their Laws written, and some had not. have not had their Laws written and set down alike: The Athenians used only written Laws: The Lacedemoni­ans [Page 43] had none written: The Romans had both.

The last difference betwixt the 4 Law of England and other Laws, but especially the Civil Law, being in the proceedings and execution thereof, which will appear principally in these three parts; First, in the manner of Three diffe­rences be­twixt the Laws of England and the Civil Laws. Summoning (as we say) or Citation (as the Civilians call it.) Secondly in the form of pleading in the Courts. Thirdly in the Judgment or Sentence, to which may be annexed also the Execution upon the same.

For the manner of summoning, or 1 citation (by that which was ancient­ly used in Rome) a man might of him­self Difference in summoning or Citation. without any process, cite his Ad­versary, and compel him by force to come into the Court; whence the phrases of in Jus rapere, in Jus ducere and such like, are used by Plautus, Ho­race, and other authours. This was not in ure at any time within this Kingdom of England, but it hath been held better, and always fit, That there might be some processe sent forth, and so a plainer, more peace­able and lawful course should be [Page 44] taken, (as if the King who is the head and fountain of Justice or the Judge under him had been first in­formed of the Suite) the like course was afterwards and is now taken in the Civil Law. For a Citation by Math. Wisenbich is defimed to be, actus Judicialis, seu Judicii praeparatorius quo is, quem coràm sisti opus est, Judicis mandato legitime vocatur, jur is expe­riendi causa; of which (according to other Civilians) he in his paratitles maketh three parts, 1. Praeceptio Ju­dicis, Three parts of a Cita­tion accor­ding to the Civil Laws now used. 2. Verbalis citatio nuncii, 3. ejus­dem nuncii relatio, quae (saith he) nisi exactis appareat, non valet citatio. In these three parts of summoning or Ci­tation, the Civil Laws and the Laws The Writ of Summons in our Law goeth out in the Kings name in some Courts, but not so in the Civil Law. of England do not disagree, save that in England the Writ of Sommons in many Cases, and in some Courts, goeth out in the Kings name. Also for the conventing and summoning of any man before the Judge, grea­ter Liberty is given by the Law of By the Ci­vil Law one might not convent a Magistrate, &c. England, than was antiently allow­ed by the Civil Law. For by the Civil Law, a man might not con­vent a Magistrate, nor Judge, nor [Page 45] one that was marrying a wife, or a man that is performing the Funerals of his friend, or a man that is pleading or following his Cause before a Judge, nee parentem patronum; parentes pa­troni in Jus (saith the Praetor) sine permissu meo, ne quis vocet. But by the None exem­pted from Suite by the Laws of Eng­land. Laws of England, none are exempted from Suite; only Dukes, Earles, Ba­rons and their Wives are priviledged, that a man cannot attach or take their persons by Capias, both for the honour of Nobility, and because it is supposed they are never without some goods or land, which may satisfy the Debts. But if the action be against the Crown and Dignity, or Contra pacem, then for their violence, their bodies also were subject to the Kings Writ. The same Law is of Abbots, and Priors. The Civil Law allowed more exem­ptions from appearing to Suits than the Law of England. But the Civil Law alloweth a greater Liberty, and saith generally, eas per­sonas quibus reverentia praestanda est, sine jussu Praetoris in Jus vocare non licet. And yet although the Civil Law be more liberal in allowing exemptions from Citation, and summoning of per­sons to appear, than is our Law of Eng­land; notwithstanding there is diffe­rence [Page 46] betwixt these Laws in the form of Suite and pleading upon divers pro­cess (wherein these two Laws might perhaps correct each other) whereof but a touch shall be given at this time, and it may be more shall be said at the conclusion of this tract, when the remedy and redress of some things conceived to be amiss in our Laws shall be spoken of.

The second point concerning the The second difference in the form of pleading. difference betwixt our Laws of Eng­land, and the Civil Laws being in the form of pleading and diversities of process; For the first, which is the form of pleading, only they agree in this, That both the Laws have had a special respect of nice observation, and also have endured alteration in pleading. For first the Civil Law, af­ter that in Rome the Decemviri had gotten the Law of the 12 Tables, and that Interpretation grew frequent upon them, then saith Pomponius, Ex his legibus, eodem fere tempore, actiones compositae sunt, quibus inter se homines disceptarent, quas actiones ne populus ut vellet institueret, certas solennesque esse voluerunt, & appellata haec pars juris, [Page 47] legis actiones; id est, legitimae actiones: and immediatly after saith he, Omni­um harum interpretandi scientia & a­ctiones apud Collegium pontificum erant, &c. Afterwards the Actions were, (as Livy reporteth) and the Book of them, gotten by C. Flavius Secreta­ry to Appius Claudius, was by him published and so communicated to the common people, for which they be­stowed on him the Tribuneship and other Magistracies; they called that Book Jus Civile Flavianum: Like to which also Sextus Aelius framed ano­ther which was called after his name Jus Aelianum. These formulae Juris were used very strictly; for saith We­senbechius, Olim ut omnia ordine, & recte procederent, & ne temere, sineque causa quis ad jurgia & lites conudaret: impe­trandum erat à praetore judicium, qui actori postulatam à se actionem impertie­batur, & formulam agendi disceptandi­que pedaneo judici, & litigatoribus prae­scribebat. So that then by the Civil Law, the planitiffe did get his form of pleading from the Judge, or Praetor, which was afterwards upon expe­rience of inconvenience altered by [Page 48] the rescript of Constantine (which Ju­stinian hath put in his Code) likewise Theodosius and Valentinian hath done the same. But the difference betwixt this and the pleading of our Common Law is, That at no time was the A strict form of pleading required but not particu­larly pre­scribed by our Laws. plaintiffe tied by the Common Laws of England to receive his whole form of pleading from the Judge, although it be true that he is required to set down a strict form of pleading ac­cording to the Law upon his own peril.

Also another difference there is, in Different forms of pleading in our own Law in se­veral Courts and much more be­twixt both the Laws. the forms of pleading betwixt these two Laws. First, that our forms of pleading do differ according to the different forms of pleadings and de­clarations in several Courts, which the Civil Law doth not. Secondly, and particularly, the form of pleading in the Civil Law is, in all actions perso­nal (because they do ex obligatione tanquam causa proxima competere actori­bus) in the Libel you must express the remote Cause and not only the next Cause: as for example, I lend mony to Titius, now I may have an Action against him for it; The remote cause [Page 49] is the lending, the next and imme­diate of the Action is the obligatio as they call it. Now if I Libel against Titius, if I say, Ago ad decem, ad quae Titius est mihi obligatus. This is naught, saith Minsinger (shewing it out of o­ther The Civil Law in per­sonal actions doth express the remote cause in the Libel, but in real actions the next Cause. authorities) because the remote Cause is not in the Libel: But if that had been in alone, that had been good, as Mutuam Titio decem, pe [...]o eum condemnari. But in real Actions they go inversa via, putting in always the next Cause, but not of neccessity the remote; (but at the pleasure of the Advocate) as, Peto fundum istum à Sem­pronio, quia ejusdem sum dominus fundi; here the dominium is the Causa proxi­ma; and if the Advocate dare venture it, he may say also, sum dominus quia emi; where the remote Cause is also con­tained. A very nice difference which is not exacted in the form of pleadings How in our Law the re­mote and next Cause are both ex­pressed in all actions. in our Law. But it is usual with us, that in every Mans real, personal, and mixt Actions, the Causa propinqua and remota are both put in the Declara­tion; yet so that in the Common Pleas in the Writ commonly is ex­pressed the next Cause, and in the [Page 50] Declaration which containeth the Writ also, the remote Cause (but in some the Writ doth contain the o­ther) as in wast, the Writ quare fecit vastum in terris quas tenuit ex dimissione ad exhaereditationem [...] here is the re­mote Cause: But in Action of Debt, praecipe quod reddat vj. libr. quas debet; here is the next Cause and the Decla­ration contains the remote, as Con­tract, Bargain, &c. Neither is there any Declaration in our Laws (as the form is now used) but contains both Causes in it: besides there are other differences betwixt the forms used in the pleadings and declarations of both the Laws, which would be too long and tedious to recite.

The next difference is in the Pro­cess 3. The third difference in the award­ing of Pro­cess. awarded in both the Laws. Con­cerning the awarding of Process we find that with us in personal actions (I mean in many of them joyning Statute Law and Common Law to­gether) In Actions personal more Pro­cess and de­lay permit­ted by our Law than by the Civil Law. there are commonly awarded (if the Suite be commenced in the Common Pleas) summons, attach­ment, distress, three capias with an exigent at the last, whereby the King [Page 51] hath Title for the parties contumacy to his Goods and Chattels.

So that the plaintiffe hath now re­medy by accident only, and if the de­fendant appear and reverse the Out­lary, or get pardon and so answer, &c. (which is a long time before this can be brought to pass) and by this means this Suite may depend long, yet the defendant never convented, but at two or three years end, the plaintiffe may be driven to declare anew (as if he had but then begun his Suite.) But by the Civil Law, as the Pandects shew us, and Wesenbech affirmeth the Term to be now in the Empire, post absentiam adversarii, petat quis edictum primum, mox alterum, per intervallum (non minus decem dierum) & tertium: quibus propositis, tunc peremptoriè impe­tret, quod inde hoc nomen sumpsit, quod perimeret disceptationem, hoc est ultra non pateretur adversarium tergiversari. Then if the defendant appear at the day given him by the Peremptory edict, No judg­ment given in the ab­sence of the plaintiffe at the Civil Law. or if he do not, the matter shall be discussed, and judgment given for him whose part shall be found best. But if the plaintiffe appear not, then [Page 52] nothing shall be done but circumdu­cendum erit edictum perpetuum. And the peremptory edict may at the plea­sure of the Judge be granted, at the first by the same authority: So that The interest of the plain­tiffe lesse subject to prejudice in Actions per­sonals by the Civil Law than by our Law. hereby the Interest of the party who hath right, is less subject to prejudice by that Law than by ours. And this course of the Civil Law doth not ad­mit so much delay as doth our Com­mon Law. For by our Law in such Cases where no Outlawry lieth in per­sonal Actions, there the Process of distress goeth out infinitely, and then is there no end of the Suite, as in per quae servicia, quae juris clamat, and such like; wherein it is true, that our Law severely punisheth the party which so much sheweth contumacy to the Law, yet doth it no good or very little to the plaintiffe for his satisfaction.

But there is another difference, that in Actions altogether real, as Entry, Escheate, Right, Dower, and such like, the remedy allowed by the Laws of England is far better; for in them if at the day appointed, upon the first summons, the party make default, and the quarto diepost be past, then is [Page 53] there a graund cape to take his land in­to the hands of the King, and the plaintiffe shall have it from the King by judgment if the defendant do not come to replevy it by oath, that he was not summoned according to the Law or such like (always remembred that Essoynes upon just occasion may herein breed much delay.) And here­in is there much difference betwixt the Civil Law and our Law, for in the Civil Law upon their peremptory edict, notwithstanding the defen­dant A main difference be­twixt the proceeding of our Law and the Ci­vil Law in Actions real. doth not appear, the right shall be examined and thereupon judg­ment given, but with us upon the de­fault at the graund cape, the plaintiffe shall have the land by judgment al­though the right be not examined. As also upon the appearance if by oath he cannot save the first default, likewise if he once appear and after­wards make default, before judg­ment given there must be a petit cape awarded, at which Writs return if he do not save the first default, there shall be judgment given against him. That all this was antient Law may be seen in Bractons Treatise de defaltis. [Page 54] So that in personal actions the Civil In personal actions the Civil Law is more se­vere, but in real more remiss than our Law of England. Law hath a more severe and speedy course for recovery than the Com­mon Law of England, but in real a­ctions it is somewhat more remiss, or at the least ours is more severe.

For the last difference spoken of be­twixt 4. The last dif­ference is in the giving and Execu­tion of judg­ment. these Laws which is for the giving of judgment and Execution upon the same in real actions being in rem, although the form and cir­cumstance thereof may be divers, yet in these real actions quoad substantiam & effectum, the difference is not very great, for both Laws must make Execution of the same thing, though perchance not in the same manner; But for personal actions it is mani­fest by the course of antient and pre­sent times that for Debt ever since King Edward the third his time, and damages and accompt ever since Henry the third his time, in actions upon the Case ever since King Henry the 7th. his time, and in all actions Execution against the person af­ter judg­ment by our Law in a­ctions per­sonal. where Capias lieth in the Process be­fore judgment, there Capias ad sa­tisfaciendum lieth after judgment to put the party in prison for Execution; [Page 55] than the which although a more ri­gorous Law were by the 12 Tables, whereby Corpus inter creditores secari licebat (whereof Rivallius saith an ex­ample is not read in any History or other Book) yet afterwards by their Lex Petilia it was decreed (as Livy reporteth) that no man should be for Debt, nervo aut compedibus vinctus, which notwithstanding was used sometimes by the violence of Ʋsu­rers, and therefore sometimes renew­ed by the Laws Portia, Sempronia, Popilia, and other, whereby terga ci­vium were made tanquam sacrosan­cta. Also by the Lex Julia, if the Debtor would leave his goods his Body was free, as appears by the same, reported in the Code; But this Law Hottoman thinketh not to extend un­to Banquerupts, or such as are non sol­vendo by their own default. But by the Anthentiques and Latine Law, if The Civil Law more mild of lat­ter time than ours for Execu­tion against ones person in debt, &c. a man were poor by some external misfortune and not by his own means, if he would ejurare copiam bonam, he need not leave his goods for his Creditors, nor subject himself to Pri­son; which is so mild a Law towards [Page 56] Debtors, that it hath no proportion with ours. But where by our Law we do not admit that Beast for the Plough shall be taken upon Elegit fa­cias which is constituted by the Sta­tute of Westminster the second (al­though that be referred by Polydore to Mulmusius Law) therein the Law of this Kingdom agreeth with the Ci­vil Law, as it appeareth in the Code: so that we shew in the Execution of judgments there are some differences even in the Civil Law it self accor­ding to the alteration of times; at the first far more severe, but in the end much more mild. And also by these forementioned examples there are differences betwixt the Civil Law, and our Laws of England in the Exe­cution The Civil Law diffe­red from it self in dif­ferent times for Execu­tion on mens per­sons. of their judgments. Many more differences might be found, both in this and in the other forenamed points betwixt both the Laws, if time did serve or were required to search and set down the same. But this may suffice as a tast for this time and pur­pose.

CHAP. IV. An answer to certain Objections usually made against the Laws of England.

BY way of imputation or indeed of Scandal, there are usually amongst others, these Objections made against our Laws of England.

1. That they are written in a Bar­barous 1 speech; even to Scholars un­known or not understood.

2. That they are framed without 2 Method or order.

3. That they have no Maximes, or 3 fundamental grounds whereon they consist, or at the least not such as are certain.

4. That the Judges opinion (which 4 may be extended according to hu­mane affection) doth make or alter the Law: so that it consisteth not (say they) in scrinio principis, that is, in the Records of the State, but in scrinio pe­ctoris of the Judge; the key whereof the Judge may alter, and by a new lock fastened on, make a way to come [Page 58] at unheard of reason, according to his own conceipts, which must be admitted for Law, at the least for the time.

For the first Objection, I conceive 1 it to flow rather from some sud­dain mislike before the matter be un­derstood, or else some quaint and dainty palate, who distasts all things (be the matter never so sound and substantial) which doth not savour of perfumed eloquence, and polished phrases of Rhetorick, than upon due consideration of the language it self; for although it must be confessed, that the speech and phrase wherein our Law is written is rude and unpo­lished, in respect that no Nation speaks it as it is now written, and that the same Nation from whence it is deri­ved cannot understand it precisely without instruction, yet that it is simply Barbarous, or that thereby the Law receiveth any disgrace may well be denied. For first, admitting there were no other aide in the defence hereof, than that which the Lord chief Justice Cooke hath in his preface to his third Book of Reports, Siquidem [Page 59] relationum istarum phrasis aut stylus ti­bi minus arrideat, ut rei ipsius subjectae praestantia atque utilitas, & delectet & satisfaciat? Ʋnde fiat ut totum te ad­mirabili plane dulcedini cogitationis at­que scientiae dedas & addices. Admit­ting that this were the effect of the defence, surely we alone should not be driven to this shift, to praise only the matter, and to reject or omit complements of form; for let the op­ponents herein but view other facul­ties (which they that profess those faculties would have to excel either of the Laws multis parasangis) observe Other Arts written in as ill stile and phrase, as is our Law. but the excellent part of the mixt Mathematiques, as judicial Astrologie, it will not be denied but some, nay most of their antientest Authors (especially which wrote in Latine) do by their Barbarism in the Roman tongue, equal the worst seeming Soloecismes in our Common Laws: witness hereof Haly Ben Rodan his Comment upon the qua­dripartite of Ptolomy in Latine, to whom may be added Guido Bonatus most e­specially, with Alchabitius and Jo­hannes de Saxonia his paraphrase upon him; it may be truly said, that a plea­ding [Page 60] in Westminster-hall for Latine, or a Case argued in a private Inn of Court moote for French, shall respectively in many phrases and good words ex­ceed most of these authours, nay in this Art the best tongued authour (name­ly Julius Firmious) is accounted the The best Au­thor in some Arts writ­eth the worst phrase and stile. worst Artist. How many Latine phra­ses or words are there to be found in the side of a leaf in any of the chiefest and antientest School Divines (who respected not the language, but the points of learning which they hand­led.) Neither in this, or almost in any other study doth the language add to the Art, seeing that as the ancient Hieroglyphical notes to express words and syllables were added only as in­struments of memory and tradition, and in other Arts the voces secundae intentionis (as the Logicians call them) Terms of Art do not give grace, but help to learn the Art. being the Terms of Art, give no grace to the study or language, but only help to learn the Art whereof they are written; therefore the lan­guage is but an instrument to the science which it contains, and is as it were the Table wherein is pictured the sence of the Law. So the Civilians [Page 61] say, tabula picturae cedit, and yet most modern languages (nay in a manner all) have bene forced to borrow from Most lan­guages for­ced to bor­row words of others. other, words, and names, especially of Art and invention: neither can the lofty stiled Greek, or the more penu­rious yet pleasant Latine, name all things in their own language accor­ding to their proper Nature, except they participate of the Hebrew which doth name things according to their Nature, but that cannot be done by any other language so fully.

Besides all this, it may be shewed that the speech wherein the Law is written, is not to be so much disli­ked in suo genere; for it appeareth by the Histories of ancient time, that when the Normans came hither, the The Con­queror com­manded the pleading and Statutes to be done in French. pleading of Law, Statutes, and such like things were commanded to be all in French; so saith the Abbot of Croy­land, Normani enim ipsum idioma tan­tum abhorrebant, quod leges terrae, sta­tutaque Anglicorum Regum lingua Gallica tractarentur, & pueris etiam in scholis principia literarum grammati­carum Gallicè & non Anglicè traderen­tur. Whereupon (as it appears) our [Page 62] Statutes which are extant, especially those of Edward the first his time (though not all) Edward the second, Edward the third, and so forward, were the reports in the Nature of responsa prudentum among the Romans, taken and published in French, which then was not accounted Barbarous, for in likelyhood it was the same language which at the first was spoken amongst the Normans; and so were all Pleas at the Barr pleaded in French until the 36. of Edward the 3. which although it were not so good French as Duber­tus his days and weeks, yet it came then in a manner near to Frossard his Our Laws written at the first in French came then near the speech at that time used. French in his History (which was made about that time) as Apuleius his Latine being no Roman, did unto the phrases of Livy, Cicero, and such like. Some corruption there must needs be in tract of time, of a tongue spoken in another Country, and consonant with another different language, as the French was here. It is evident that the antient Books, as Britton, Heng­ham, and the year Books of the first succeeding ages are in better French than our later Books are, because [Page 63] our common Lawyers now do imi­tate the antients in such words, as they have there learned, and if they want a fit word in French, then do they as Sr. Thomas Moore saith of Lalus,

So that indeed, the tongue wherein Our Law French of later times much min­gled. the Law is published of late hath been much mingled with French, Latine, and some English; that a man might compare it to that supposition of Ho­race, Humano capiti, cervicem pictor equi­nam, &c. And our late Law French doth corrupt the antient Law French, as that in those primitive times was corrupted some what by the English: so that the most of our Law being in the ancient French (for so are the year Books until Henry the 7th his time inclusively) deserveth no more to be ill thought on for the language (al­though not spoken in our or in any Country) than Plautus his Comedies because they agree not with Latine Authors in their Latine, or Chaucers writings because in words & stile they [Page 64] differ so much from Sr. Philip Sidneys selected and exquisite phrase. Should any man think the worse of the study of antiquity because that most things wherewith they have dealt withal be­ing The study of antiquity not to be misliked for the ill Latine. Histories of the middle and later age on this side Christs nativity, are written for the most part in very mean Latine. Neither is it any good objection to say that our tongue, wherein the Law is written, is no tongue, because it is not spoken; for about Charlemain his time (as appears in Lipsius his epistles) the right French did more differ from, and seem more Barbarous in respect of the smoth­tongued now used in France, than our Law French about Edward the first The ancient French more rude, than that now used. his time did differ from the Natural French then in use; so as it was a tongue then much spoken, but now much varied and altered. Where it is objected that it is a tongue un­known certainly: It is by students of the Law, as easily, and far more easi­ly learned than any other language can be; for within less than a seven­nights study it will be indifferently understood. And that it should not [Page 65] be commonly understood of all men, Our Law French easi­ly under­stood. Fit that the lan­guage wherein our Law is writ­ten should not be com­monly un­derstood. there is great reason and no profit but peril in the contrary; (for if all men (whereof the greatest number are of unquiet spirits) should at the first fight understand the language wherein our Laws are written, that would breed but small rest to them that would most desire peace.) There­fore I cannot see what impeachment of credit it is to our Laws that they are written in such a language, if of themselves they are not to be discom­mended, which in the other points will somewhat appear.

For the second objection that our 2. The second objection, that our Laws do want Me­thod. Laws want Method and order: For Method which indeed in all learning is to be wished for, (and yet is not found or framed in our Laws) but that is no great disgrace to the Laws, for hardly shall we find any faculty that is without any defect (as Sr. Francis Bacon in his second Book of the advancement of learning hath well noted) whereas also there is not an harder point in Logick and Rheto­rick, than the right distinguishing of the true Methodical parts in any fa­culty, [Page 66] as appears by the multitude of writers in each faculty. Indeed the Long, be­fore the Ci­vil Law was brought in­to Method. Civil Law was easier for Students af­ter such time as Justinian had digested the 2000 Books and 300000 verses, wherein it was scatered and confu­sed? the like whereof might be wish­ed in our Laws; but upon what grounds hoped for, I cannot yet The difficul­ty of dige­sting our Laws into a Method. discerne; for no small impediment therein would be, seeing our Laws are grounded so much upon reason, which alters and reforms other pre­cedent errors. Hardly could there be a Methodical digest drawn of all the year Books (I mean for authority and not only for Study) which might be sure to stand always firm for Law, without it were first so determined by Parliament, the confirmation where­of I conceive would come ad Calen­das Graecas.

But for Study the time may come A private Method for study, more easy and profitable. that by the example of Littleton for Tenures, and Common Law convei­ances, and Estates; Stanford for the Crown pleas; Theloal for Writs; Gre­gory for Warranty, and few more heads; Kitchin for Courts; together [Page 67] with Crompton, and Lambard; so by their example, some great Lawyers may settle themselves to imitation; this perchance may be remedied by some skilful Scholastical Lawyer, but whether the remedy would not be worse than the disease, and whether it will not make any truants of such as otherwise might prove painful Students, let it be their judgments who are judicial, and not theirs who are altogether ignorant in our Laws; What in­convenience might fol­low the di­gesting of our Law in­to a precise Method. for this is most to be feared; which we find by experience, that where abridgments are, and where by com­pendious Method some strive to give life and luster unto the Art they pro­fess; the Students thereof coveting to come the next way to their Jornies end, do like those Travellers which to avoid some long (though the sa­fer) way, do choose to adventure the passage over a bridge, whose foundati­on may yet be faulty, & so fall short of their Journey, rather than to go some­what farther unto a ford where there is less danger and a surer, though somewhat a longer passage. I will not say that there is the like hazard in [Page 68] Methodical composition of our anuals, or year Books of the Law, but sure we see that many Students are alrea­dy more addicted to the Study of the new than of the old year Books, The peril, that Stu­dents desire to read the new and to omit the old Books of our Law. wherein seeking to save pains some may fortune to find in the end, that to offer to go a nearer way than is to be found, is (as the proverb is) but the next way about; for though it be true that the last Judged Cases are most in force, and the former many times abrogated, or altered, yet the old Cases give grounds of Law unto the new, and by perusing both, the differences of Reasons which make the one firm and the other to fail are best discerned.

So that surely there is no humane No Study requires more the reading of old and new Au­thors, than doth our Law. science which requireth more the revolution of old and new, the con­ference of Precedent and Subsequent matters, and in conclusion, that exact­eth more the Study of the whole bo­dy of that science, than doth the in­tire Study of the whole volumes of our Law, to make a man to be a per­fect Lawyer: therefore whether this Compendious digesting our Law into [Page 69] Method, be profitable, necessary, or hurtful to the Students thereof; though, I must confess, I do much affect Method (as holding it a prin­cipal light of Learning) yet, as I said before, I must leave the Censure thereof unto the Oracles of the Law. But if any man will be desirous to follow a method in the Study of the Law, or a method for his Memory when he hath studied it; he might, by distinguishing aright such Alpha­betical Distinguish­ing of Al­phabetical Titles, a help only for Me­mory. Titles as are dispersed in Fitz­herbert, Brook and Statham, their A­bridgments, find, for his private stu­dies and use, a far more orderly and profitable form, than the reading of these Books according to A B C, do admit. Yet this, as the rest, is spo­ken under correction of better Judg­ment.

Under this head of want of Me­thod, Another ob­jection un­der this head against our Laws. is comprehended another ob­jection which some make, and find fault withall; That our Pleaders use no Method, Eloquence, or Art in their Pleadings. If they mean the Pleadings which are entred in the Rolls, had they once tried some tickle [Page 70] points of exception (as perchance others have done to their charge and peril) they would be of another opi­nion, and it may be then they would complain of the contrary; that in the rules and directions for Defen­ces, Pleadings in Rolls and at the Bar, not Ciceronian, but distinct and signifi­cant enough. Traverses, Confessions and Avoid­ances, there are too nice differences and distinctions sometimes exacted. If they intend the Pleading and Ar­guments at the Barr; it is true, that for Form they use neither Ciceronian Orations, nor Syllogistical Arguments in Mood and Figure; but yet, for matter, they do smell (as Phocion ob­jected to Demosthenes Orations) of the Candle, most commonly, in sa­vouring of great pains taken, with exact quotation of Books and Judg­ments. Neither should there be ex­pected Eloquent in­vectives or insinuations not fit for the pleaders of Law. in such Arguments elegant Forms of Speech, such as should tend to the commending or dispraising of the parties (as the old Orators, Iso­crates and his successors were wont;) And if any use this, as some do, a lit­tle of this Eloquence is too much. For Syllogisms, indeed they use them not, neither are they needful in this [Page 71] Art, or kind of Arguing, but as they are fittest for the Schools and Uni­versities, so if there were need of them, there is no doubt but most of their Arguments or Pleadings at the Bar, might by Scholars be redu­ced into Syllogisms, though then per­chance Syllogisms fittest for the Universi­ties and Schools. the concurring reasons of the Law might be made more intricate, and as hard to be understood as Ari­stotles Acromantica, especially of such as are not Logicians.

Now to the last objection against The last ob­jection a­gainst our Laws. our Laws, that they have not funda­mental Maxims which are universal­ly true, and that the Judges private opinions do usually alter the Laws, and so leave it alwayes in uncertain­ty: For the first, concerning Maxims, or certain Foundations, which they suppose are not in our Laws; They which read and understand the Law shall find, that there are many recei­ved Many rules received in our Law without any contradicti­on. opinions and Rules in the Law, whereof scarce any contradiction hath been of Opinion, much less of Judgment; as amongst the rest, these of Inheritances.

That no land can by Inheritance 1 lineally ascend.

That the Heirs of the part of the 2 Father are to be preferred before the Heirs of the part of the Mother.

That of Inheritances descended by 3 the Mother, the Heirs of the part of the Father cannot inherit, and so of the other side.

With many other such Rules in­fallible and unchangeable in the Law, whereof divers are collected by Sainct German in his first book.

And the grounds or maxims are so certain concerning some of the no­blest parts of the Law; (viz. about the Inheritances and Escheats) that the Lord Chief Justice Coke affirmeth (who is best able to prove his asserti­on) he found not in all the time he studied the Law: Ne duas quidem adverti quaestiones, de jure heredita­tum, de terrarum ligitima confiscatione, sive (ut loquantur) escaeta, ali­isque consimilibus. But howsoever this opinion stands, It is most sure, that there are infinite other Rules and Positions in the Law, which admit no alteration or question. To [Page 73] which it is usually replied; It is true, that there are many such Rules and Positions in the Common Law, which remain still firm, and are not contra­dicted, yet they are not Maxims, nor That the po­sitive rules of our law may be in some sort reckoned as Maxims. deserve not that title, as other Arts have, and are allowed them. The answer is, that these positive Rules which are certainly set down and de­termined for infallible, may, without any great errour, be intitled Maxims of the Law, or at least, held in the nature of them (for authority, if not for method.) For in any Art, (as to instance in Geometry) let a proposition or theoreme be once infal­libly demonstrated by principles; the Mathematician who made this de­monstration, upon infallible tokens of truth, may not unfitly call his de­monstration a Maxime, or Principle, in respect of authority, though not of method, as was spoken before: the like may be said of our infallible positions and demonstrations in the Common Law, whereof there are very many, howsoever some conceive the contrary.

To shape some answer unto the last [Page 74] most usual & effectual objection made against our Laws; that is, that the Judges private opinions and reason do usually alter the Laws: and so it is left alwaies in a Labyrinth of un­certainty. Although my judgment in the Laws being so slender, is not suf­ficient to answer so important an objection, tending so much to the dis­grace of our Laws, and indeed to the great scandal of the Justice of this Realm (the execution whereof de­pendeth most on these Judgments supposed to be so uncertain) yet I will be bold to speak what I con­ceive, leaving the more full answer hereof to them that are much more deeply learned in our Laws.

Where they say that the alterati­on How the Judges opi­nions may alter the Law. of the Laws doth depend on the Judges particular opinions and rea­son, whereby it is so much subject to mutability; sure this is not altoge­ther true, in such sence as it is spoken; for it is not the private opinion of one Judge that altereth the Law, but it is the concurring opinion of more than one, and that not only concurring in their private reason [Page 75] and sence as it is said, but their rea­sons are alwayes conferred with for­mer Judgments, and either thereby strengthened, or if differing from the same, they must shew reason also stronger or different from the former to ground their Judgments upon. And in this sort that latter Judg­ments should reverse former, is not unusual in other Laws, nor peculiar only to this of ours, for saith the Ci­vil Law, Non est novum ut priores leges That the Ci­vil Law doth allow the alteration of Laws and of Judg­ments. ad posteriores trahantur. The Civil Law hath the like rule in another place, and the same hath a great Phi­losopher, and a Learned Politician, Non possunt omnes articuli singulatim aut legibus, aut Senatus consultis com­prehendi, sed cum in aliqua causa sententia eorum manifesta est, is qui jurisdictioni praeest, ad similia pro­cedere atque ita jus dicere debet. In like manner concludeth a learn­ed, The opinion of a learned Father of the Church concerning the alterati­on of Laws. and an ancient Ecclesiastical Wri­ter, concerning the alteration of Laws upon good grounds of reason; He saith, Ideo quia antiquiores leges ad posteriores trahi usitatum est; semper quasi hoc legibus inesse credi oportet; ut [Page 76] ad eas quoque personas pertineant quae quandoque similes sunt. But some will say, these are indeed rules for the alteration of Laws, upon different opinions and grounds of Reason; but have you any precedent that the Judg­es in other Laws do differ so much in their opinions, and do leave their Laws so uncertain? Yes surely, for in the Civil Law there are many Ca­ses of great consequence, wherein the Doctors do differ in opinion, and In the Civil Law the Doctors do much differ in Opinion. shew each of them several reasons and authorities to uphold their sides and opinions, for they differ much upon the exposition of the Rules of their Law, which are drawn, ex­tended and restrain'd according to their several Opinions and Judg­ments; the reason is rendred, be­cause it is a very hard matter to ex­press all particulars by comprehen­sion under a general head. But where it is said, that the Law dependeth upon the variable reasons of the Judges, that Reason should be the ground both of the Law it self, and of their Judgments upon the Law, is neither strange nor unfit: for we [Page 77] confess that the Law is grounded up­on tryed and well-examined Rea­son, which considereth what is con­venient, and what is inconvenient; what is for the general good, and what for the particular; what doth concurr with the rigour of Justice, and what with the moderation of Equity; with many other considera­ble circumstances, which Reason doth deliver, as well to the Law-maker, as to the Judge in expounding the Law. But yet the Judges do not wholly and only rely on the rules of Reason in delivering the Law (as the sole prop and pillar thereof) al­though our Laws, as even the Laws of Nations, and all other particular and municipal Laws, are deduced from it: for ratio est regula aequitatis. And although the praise of the Law is, that the rules thereof are appro­ved with reason (as the Touch-stone to try whether the remedy of an In­convenience be good and sound;) yet Reason in our Law is accompa­nied with other consorts, and our Judges have other aids to support and strengthen their Judgments: being [Page 78] those helps (which, as the Philoso­pher saith) Reason doth use as her hand-maids, for the Invention and Knowledge of other Sciences and Arts, as Sense, Observation, Expe­rience and Induction: Of Sense, to single out Notions; of Observation, to keep many Notions together; of Experience, to confer these Notions which are necessary, and which not; and by Induction of many particu­lars concurring, to frame under few heads many general Conclusions. As other Sciences, and the perfect Pro­fessors of them have these helps, so have our Law makers the same in Ordaining, and our Judges in Ex­pounding of the Laws. The first, which is Sense, is common to all men, (even in all Mechanical Arts;) but the latter (as Observation, Ex­perience and Induction) are chief in­struments used and applyed by our Judges in the interpretation and ex­pounding of our Laws: for after long study and practice of our Laws, after What grounds the Judges do lay the Judgments upon. the reading and revolving of former Judgments, and of other studious la­bours; they come to Experience and [Page 79] Observation, out of which they frame conclusions for future Judg­ments, which must be still like Judg­ments in like Cases; for they may not, nor do not, so swerve from for­mer Judgments, that they may con­trary them, without there appear some manifest difference of Reason, which their reading concurring with Observation, and Experience, can best inform them of; and then up­on different reasons, (wherein the latter may correct some slips of the former) to give different Judg­ments, is neither strange in our Law, unusual in other Laws, or inconveni­ent in either. Therefore they which frame these objections of contrariety and uncertainty in the Judgments of our Common Law (perchance for the most part) do not conceive the Reason of those things which they condemn so much: and in this they are not much to be believed, nor over much to be blamed, if Igno­rance, and not Malice, be the Mo­tive; when they speak as they think, not as they know.

And for that many think (who The accusa­tion of our Laws, be­cause they are not all written, nor certainly set down. think not much amiss) that the chiefest defect of our Law is, because it is not all written, or that it is not so written, that it is certain or sure not to be changed. For the first, there is no other answer, as far as I can see, to be given, but that which was said by a Writer of our Laws about three hundred years since: Si ob scripturae solummodo defectum, leges minime censentur; majoris proculdubio robur authoritatis, ipsis legibus videntur accommodare scripturae, quàm vel ratio statuentis vel decernentis aequitas. Leges vero & jura regni, scripto universaliter concludi nostris temporibus, omnino qui­dem impossibile est, cùm propter scriben­tium ignorantiam, tum propter earum multitudinem confusam. It is confes­sed therefore, that they are not all Impossible that all the Law should be written. written, and acknowledged, that it is impossible they should be all writ­ten. And herein have we, for that part of the Common Law (which is generally called by that name) imi­tated the ancient Druides of this Land (but yet gone farther than they) who, following the Pythago­reans [Page 81] did not commit their Learning to Writing, or rather the Lacedemo­nians, who, by the institution of Licur­gus, held all Law not written, who, as Plutarch reporteth, exiguos illos & pecuniarios contractus, quique prop­ter usum vitae subinde immutantur, praestare censebat scriptis legibus non comprehendi, neque immobilibus consue­tudinibus illigari: sed permittendum ut pro ratione temporis augerentur, diminu­erentúrve, secundum probe institutorum hominum arbitrium, yet our Law doth not give so much libertie to the Judges. But yet not onely Politicians and Moralists, but also the Civil law­yers do permit that in a Common­wealth the constitutions of Princes are to be interpreted according to the Judgment of Magistrates and Judges, sometimes mitigated, and, according to incident diversities, in­terpreted, which cannot be alwaies committed to writing: for it cannot be alwaies the same, and this were rather to be wished than to be ho­ped for in our Laws: and I would that he which finds this fault, could finde a remedie and prescribe the re­formation. [Page 82] Controversies and am­biguities are so frequent not onely in this, but in all sciences, arts and pro­fessions, that every day new particu­lars New parti­culars breed new questi­ons. are subjects of new questions, e­specially in the Laws, which spring out of the intricate forms of new Conveyances, and such like inventi­on of men. And so long as man seeth but in aenigmate and per speculum (as the Divines say of the Knowledg How uncer­tain man's knowledg is in Divine things and in other sci­ences. of God) and so long as by the rules of the perspectives, that which is seen by reflection, or refraction, is never seen in, or according to, his true place; so long and in such sort we must look for controversies and am­biguities in all professions, which are indeed not so much, or so sensibly felt, in any art as in the Law; be­cause none other goeth so near mens Nothing go­eth so near to mens thoughts as their loss of estate. inward thoughts and conceipts as such doe whereon their estates and possessions are adventured, therefore losers may have leave to speak, but not untruth.

CHAP. V. Of the Books written of the Laws of England, whereby the Knowledge thereof is chiefly obtained.

THE chief Knowledg (by study) Three sorts of writers of our Law. of our Law doth consist in the Works of them which have written of the Law, and they are of 3 sorts.

1. The first whereof setteth down the Art and Rules of the same in a certain method, such as is, Glanvill, Bracton and Britton, who are ancient Authors, wrote in Latine and did in­deavour to reduce those Rules accor­ding to the titles of the Civil-lawes, but most especially Bracton: though these are ancient Authors, yet they are now cited rather for ornament than for authoritie.

2. Others have written of the Writers of the Nature and Prece­dents of Writs. Precedents, Rules and Natures of Writs, which do lay the ground of every Action to procure judgment and execution thereon, as the books of Entries with the Register, and the two books grounded thereupon. [Page 84] In this Fitz-herbert hath deserved specially well.

3. A third sort of Writers of our Reporters of former Judged Ca­ses. Law there are, which be those who write the particular and summary Cases that have received Determina­tion and Sentence in the King's ju­cicial Courts, shewing how the Rules of Law were applied to those Cases, or rather how these Cases were reduced to the Rules of Law both by the Counsellors that argued the same on both sides, with proba­ble Reasons confirming their opini­ons with authorities of former Judg­ments, and also the Judges conclud­ing their Sentences upon the same by the common square of Reason and Rules they have learned of the foregoing learned Judges. Of this It is not known who compiled the first An­nales and ancient Year-books. latter sort of Writers called Report­ers, who they were that compiled the first and most antient Books of Re­ports is not certain, for we have not their Names, but since the time of King Edward the third, there are some Works and Reports written of every King's Raign: for before his time we have not any Volume at [Page 85] large now left, and if any such were, they are consumed through the in­jury Divers anti­ent Year-books want­ing. of times, or neglect, or malice, of such in whose custody they re­mained: yet it should seem, that in the raign of King Henry the 8. there were some more ancient Books or Reports of the Law Cases extant re­ported in the times of King Henry the 3. and Edward the first, and Edw. the second; for that Fitz-herbert Some Cases abridged of the Books now not ex­tant. who did reduce all the Cases of the Reports that were extant in his time under certain general Heads, and Brook likewise, who a little after him, did set forth another Abridgement of the Law, and Cases extant in his time, (adding more general Heads than Fitz-herbert had done) yet both of them under divers of their titles abridge the pith of sundry Ca­ses argued, and most of them ad­judged in those Kings raigns. How­beit the Volumes at large are not We have now E. 2. and R. 2. What Year-books are yet extant. now extant.

But of the Cases which were ad­judged in the time of King Edw. the third, there are four Volumes now extant. Of King Richard the se­cond [Page 86] his time, there are not any Vo­lumes, but many Cases abridged as a­foresaid. Of the times of King Henry Long quin­to. the fourth and King Henry the fifth there is no Volume. Of King Henry the sixt there are two great Volumes. Of King Edw. the fourth one Vo­lume. One Volume of King Henry the seventh, in the later end of whose raign the Reports do disconti­nue until the twelfth year of King Henry the eight. And then they were recontinued untill the nine­teenth of Henry the eight, from thence again discontinued till the twenty sixt of Henry the eight; at which time they were held on for two years, that is, twenty sixt and twenty seventh of Henry the eight: which are the last Reports which we have, save such as since have been revived by three or four worthy men, whose private and voluntary diligence have for the publick good continued sundry Reports, such as Mr. Kellaway who reported pri­vately certain Cases in King Henry the seventh his time. This Book and labour is now come to light [Page 87] by Mr. Justice Crooke his Care and Charge. Also Mr. Brooke who did re­port diverse memorable Cases which happened when he was making of his Abridgment in the time of King Henry the eighth, King Edward the sixth, and Queene Mary, reported them under apt titles in his Abridge­ment.

Then, my Lord Dyer, who, when Of the late Reports of judged Ca­ses. he was a Student, a Practicioner and a Judge, observed many famous Cases which were published since his death.

A little after him began Mr. Plo­den, who reported the speciall Cases which hapned from the second of King Edw. the sixt until the fifteenth of Queen Elizabeth; they are but few Cases, yet more fully reported than any before him.

Then, the voluntary Reporter is the late Lord Coke, who hath set forth thirteen Volumes of Reports. [Since that we have had Hobart, Bul­strod, Hutton, and divers others, espe­cially Justice Croke, who continues his Reports till the middle of the reign of King Charles the first.]

There are besides these Reporters Writers of Rules, and the applica­tion of them to Cases. some other Writers of the Common Law, whose Works are mixt partly of Rules and partly of Application of them to certain Cases of their own knowledg and collection: such is the Book called, The old Tenures; and another commonly called Littleton's Tenures. This Book serveth for an Introduction to the young Students in the Common-law of England, as Justinian's Institutions doth for the beginners in the Civill-law. Mr. Perkins did likewise draw certain Rules and Cases of some Titles of the Common law into a method, but not of equall, or like, authoritie with Littleton's. It is alledged by Ploden, in his Epistle, that in antient time, (as he had upon credit heard) there were four Reporters of our Ca­ses Reporters of the Law in former times au­thorized 2nd allowed by the King. of Law which were chief men, and had a yearly Stipend for their travell therein paid by the Kings of this Realm, and they conferred to­gether at the making and setting forth of the Reports. It were to be wished that there were the like course still continued, and allowance [Page 89] given: So should we not have been bereaved of so many worthy and unrecoverable Cases and Judgments which are wanting, and no doubt either perished, or buried in silence, by which means the Students are deprived of the Lights and Helps which they might have thereby.

CHAP. VI. Of Estates allowed by the Law of England.

HAving said somewhat of the Grounds of our Common-law of England, it should seem proper in the next place, to shew the Estates which the Common-law doth allow. And that briefly; for neither my Judgment in the Laws nor this place will fitly allow such aperfect and exact Discourse as may pass without exception of the Learned in our Laws, or fully satisfie such as are well experienced in the same. Onely that which shall be said is rather set down as a general view, to consider the state and [Page 90] course of our Laws; than as a plat­form and precise instruction thereof.

The Estates most absolute which Fee-simple of two sorts. the law doth allow, are either Fee-simple absolute of Land to a man and to his heirs and assignes for ever: Estate of Fee-simple conditional now made an Estate in Fee-taile. or Fee-simple conditional, that is, to him and the heires of his body gene­ral or special, as it was at the Com­mon-law which is accompted Fee-taile to his Heirs males or females, ac­cording to the particular limitation.

This Estate of Fee-simple absolute How times have altered the state of Fee-simple. and general is as ancient as our Com­mon-law, and perchance before the use of our Common-laws as they are now in ure; for from the beginning there was giving and granting of Lands, though not altogether in that exact and express form which later times have required: because at the first if one man had given Lands to 1 another for ever, this had been held a sufficient grant to him, and to his heires. But now the law hath so ex­pounded 2 and distinguished, that if the word [Heirs] be not in the grant, it is no Fee-simple, but an estate for life. The estate in Fee-simple donditional 3 [Page 91] was likewise (for the general pra­ctice thereof) introduced upon later considerations, of which at the first there was no recovery left in the Giver, nor remainder could be limi­ted over (but after issue had, which was the condition annexed) the Do­nee, or he to whom the Gift was made, had power to aliene the whole Land and Estate.

But afterwards this Estate in Fee-simple 4 conditional was in the thir­teenth year of King Edw. the first by a Statute made an Estate in tayle in the Donee, and a Reversion in the Donor or giver. And then the Do­nee might not by any Act barr his issues, neither by forfeiture of offence, as Treason, nor by conveiance, though never so strong, as Fine, &c.

Thus we see how the greatest and most beneficial Estate of Fee-simple, which the Common-law doth admit, hath received his degrees, his limita­tion, and alteration according as time, increase of knowledg in the Laws, and of Conveyances and Assu­rances amongst men have thought it meet: the like alterations we may [Page 92] finde in other Estates of least extent, and benefit in the Laws.

Where mention was first made of the state of Fee-simple to be very an­tient, though not always in one ex­presse form; It is true, with a seve­ral respect of times in antiquitie. For among the Saxons Fee-simple was, Fee-simple in use in the Saxons time. and that by the name of Land to a man and his heires, as it appeareth in the Saxon Laws of Alfred, where it is said, qui terram habuerit per scrip­turae seriem (the Saxon word is boc­lande) sibi relictam ab haeredibus ad alios alienandi potestas ei non esto, siquidem praesentibus cognatis coram rege aut e­piscopo scriptura aut testimonio poten­tum, omni alienatione & interdixisse il­lum qui prius concessit, talemque ei impo­suisse legem cum primo dederit: out of which may be noted, both the Fee-simple absolute and conditional were then allowed, and in use. And also Fee-simple conditional also known in the Sax­ons time. a man may see that in antient time how a gift to a man and his heires and a gift to a man for ever were all one. For when Erle Godwine came to the Bishop of Canterbury to get the mannor of Boseham in Sussex; he [Page 93] first jestingly said to him (as Mr. Cam­den saith out of Mapaeus) Da mihi Bose­ham. The Bishop (as it should seem, scarcely knowing his meaning) an­swered him, Do tibi Boseham: where­upon without any more livery, the Erle took and had possession thereof to him and to his heirs; by which also we may see two things, that the word heirs, was not then of absolute necessitie in a grant to create a Fee-simple, and that then such strict words and forms of Conveyances were not required, as of later times, to passe Estates of Lands.

There are other Estates of inferior degree and dignity allowed by the Common-law; whereof some are accompted Inheritances and Free­hold; Others but uncertain, and not for a prefixed season or term.

Of the first sort is an Estate for life, Estates for life two-fold. and that two-fold, either created by the party, as by Lease, &c. or else created by the Law, as Tenant by the Curtefie of England, (by having issue of a wife Inheritrix;) or else an E­state in Dower limited to a wife in mariage, and this reckoned Free-hold, [Page 94] for that it is an Estate for life.

An Estate for years by grant of the Estates for years by grant. partie, is, when by Lease either in writing or word, called a Lease pa­rol, or by Will, such an Estate is granted.

An Estate for years by Law is di­vers, Estates for years by the Law. as that which the Lord or Guar­dian hath till his Ward be of full age: the like by Elegit grounded upon a Statute Ed. 1. upon a recovery of Debt, Trespasse or Acknowledgment of Debt in the Chancerie or before a Judge.

The like Estate for years by Law, is by the Statute merchant or staple. By acknowledging a debt before the Major of the Staple of antient Cities and some special merchandizing Towns.

The two last Estates for years cre­ated by the Law were ordained for the better recovery and assurance of due debts; but whether they, or that of a Guardian, be Estates for lives by Law some make question.

There are two other Estates where­of Tenant by Copie of Court-roll first reckon­ed Tenants at will: But now not so. the Holders are called Tenans at Will; but of them (although they be so termed) the first is now allowed [Page 95] for a more ample Estate, by use and Continuance, that is to say, Tenant by Copie of Court-roll, first called, Tenant in Vilainage. But now according to the Custome of Mannors, these Tenants are not to be altered, but may renew their Estates by common course.

The other, which is the last, the Tenant at will the meanest E­state the Law allow­eth of. least and meanest Estate that the Law alloweth, is called, Tenant at will, who hath no longer term than standeth with the will and pleasure of the Landlord.

CHAP. VII. Of Assurances and Conveyances which grow out of these Estates by the Com­mon-law.

SInce we see that the Estates and Interests of Men cannot pass from one unto another, but by Descent or by Conveyance; It were not amiss to manifest the general course of Assu­rances which are usual, and admitted by the Common-laws of this Realm. These Estates have for the most part their passages by Feoffment, by Deed, [Page 96] by Fine and Release, by Common-reco­very, by Wills and by Ʋses.

Feoffment is by Liverie and Seisin, Feoffment. that is, by deliverie of Possession upon the Land, by taking of turfe and twigg (but in antient time, as Bracton lib. 2. How it was executed in antient time. sheweth, when there was no House on the Land, it was heretofore per fustim & per baculum;) and this Livery, by Bracton, is called, Vestimentum do­nationis, thereby putting the par­ty to whom the Estate is granted in possession, or some other to his use by Letter of Attorney. And though this be of the Possession only; yet without Liverie and Seisin no Feoffment can receive life or force.

A Feoffment is proper to an Estate A Feoffment proper to an Estate for life at the least. for life at the least, and so upwards, or else by grant of the Reversion and Attornament of the particular Te­nant, which must be by Deed: be­cause the possession passeth not by de­livery only. This Conveyance was antient and most of Force, being noto­rious, of which the Country might take notice, and is much used at this day.

Exchange of Land whereby one Exchang of lands. [Page 97] parcel of Land is exchanged for an other of equall estate, heretofore much used but not now.

Grants by Deeds written in paper Graunts by Deeds with Dedi & con­cessi or parchment sealed and delivered with these words, Dedi & concessi, &c. have been antient and most usual, so is it yet used; but not so frequent, especially in Estates of any value.

An other Assurance there is by Fine, which also is antient: at the first it was the agreement of parties upon Arbitrement or otherwise after a Con­troversie arisen, when an Action is brought and hanging, for so is the an­cient Law after H. 3. his time, for before, and then, Fines were received of many such things and in such sort as will not be now admitted. So was it set down betwixt them in these words; Haec est finalis concordia, that is, That this is the final agreement be­twixt such and such persons. There­fore, as some say, it was called, finis, quia finem imponit litibus, because it maketh an end of strife. This Con­veyance is most antient, as some hold it, before the Conquest; but now used in the King's Court of Common pleas, [Page 98] and principally in some Courts of Record, to make the Assurance more forcible and certain.

The same by a Statute made in the Fines strengthned by Statute. 18^th year of Edw. 1. was strengthen­ed; and by the same Statute every person of full age, of sound minde, out of prison, and within the Realm, were bound and concluded by a Fine, if they did not make Claim within a year and a day after the Fine levied. But this Statute being thought too pe­nal and prejudicial to Mens rights was repelled by another Statute in the four and thirtieth year of King Edward the third: And then men were at liberty, as before, to make their Claim at any time.

But afterwards this Satute of 34 Former Sta­tutes con­cerning Fines repea­led. Edw. 3. was also repealed by a Sta­tute in the fourth year of King H. 7. and also by a Statute in the 32 H. 8. Fines were made so strong, that after the Fine ingrossed, and Proclamation made, all persons after 5 years Non­claim were bound, unless they were under age, lunatick, in prison, or out of the Land at the time of the Fine levied.

And by this Statute of 32 H. 8. Tenant in tail may barr his issue, which before he could not, by reason the Statute of 13 Edwardi 1. provided he should not binde him by any act.

Another Conveyance there is now Common-re­coverie an Undoer of former Con­veyances. much in use, yet not very antient, which may be called a Pick-lock or an Undoer of former Assurances: This is called a Common-recovery, and was ne­ver used till about the 12 year of Ed. the 4. it is not warranted by any Sta­tute, but an Invention first grounded upon a mere Conceipt, now held the strongest Conveyance.

The Invention was, that the Issue The frau­dulent in­vention of Common-re­coveries. in tail, or he in the Reversion or Re­mainder upon a tail should be barred of his Right and Estate by a recovery against the Tenant in tail: wherein Tenant in tail upon a supposed War­rantie did vouch an estranger, because the Issue or he in the Reversion by this voucher was supposed to have a recompence in satisfaction of his E­state, which being not so indeed, this is then but a mere Collusion, and in­deed the most injurious Conveyance that the Law doth allow of to cut [Page 100] off mens titles and possibilities with­out their privitie or satisfaction. This Conveyance is used only to cut off the Reversion or Remainder de­pending upon an Estate-tayle, and to destroy perpetuities which no other Conveyance doth, as a Fine is used to barr estrangers that pretend right of Possession or Action, which no other Conveyance can doe.

Conveyance of Land by Will or Conveyance of Land by Will, how it stood at first. last Testament in antient time was only in such antient Cities and Bo­roughs which specially prescribed for the same, and that the Lands were devisable by Custome. But the greatest part of the Land within this Realm was not subject to this kind of Conveyance, unless the same Land were first granted over to Uses or in Trust; and then the said Trust was devisable by Will, because it was a matter in Conscience; and a Subpoena in Chancery was the only remedy.

But in the 27 year of King H. 8. all those Uses were transferred into Possessions; so that by means there­of no Land, by any means was de­viseable [Page 101] but Customary-lands untill the 32 and 34 years of King H. 8. when it was Enacted that all Lands Farther liberty grant­ed by sta­tute to con­vey Lands by Will. might be devised by Will, and if the same were held in Socage tenure, the whole passeth by Will. But if of the King in Chief or of a Subject by Knight-service, two parts only do pass by Will, and the King, or Lord, of whom it is holden, is to have a third part during the nonage of the Heir, and the Heir the said third part afterwards.

The Conveyance by Uses was in Conveyance by Uses, when and how it be­gun. antient time unknown, and began in the time of the Civil-warrs of Ed. 2. against the Barons, and of Lancaster and York, bred and begotten by fear; for the owners of Lands doubting lest themselves by partaking should be attainted (and so their livings forfeit­ed) did convey their Lands over to their Friends in trust, but received the profits themselves: which per­ception or propertie by Law was called Use. And the party who was Owner in Conscience was called Ce­stuy a que use, or pernor of the profits. Also afterwards Uses were invented [Page 102] by fraud to deceive Creditors of their Debts, Purchasers of their Bargains, and Men that had right of their A­ctions; all which was remedied by the Statute of the 27 of H. 8. where­by the Possession of the parties trusted was transferred to the Cestuy a que use, and the Use and Possession were incorporated and united. But yet at this day Conveyance by Use is very common, and many kindes of Con­veyances are lately sprung up out of this Statute of 27 of H. 8. as Bar­gains and Sales for money. But this must be enrolled within six monthes by the Statute of 27 H. 8.

CHAP. VIII. Of Actions and of their Trials ac­cording to the Common-laws of Eng­land.

IT is a saying both in the Civil­laws and Common-laws of this Kingdome, that Actions whereupon the Trials of Suits betwixt party and party do depend, are of three sorts; either real, personal, or mixt. The Actions of 3 sorts. first concerneth the Title of man's Lands and Freeholds; the second of their Goods and Chattells; and the third are in Rem & personam simul, as Waste, Quare impedit, Ejectione, and the like.

Actions heretofore used for real Actions real. matters were Assises, Writts of Entry and Writts of Right for Fee-simple, and as some hold for Fee-tail, con­firmed by Precedents of experience, also Formedon for Fee-taile, Cui in vita, for a Woman upon the discon­tinuance of her Inheritance by her husband.

And for personal Matters and Actions per­sonal. [Page 104] Contracts it was, as at this day: which real Actions were so used, because the partie oftentimes was barred of his Entry by a discent, that if one did disseise or unlawfully dispossess an­other of any Land, and the Disseisor or Wrong-doer died thereof seised, the lawfull Heir, or he that had the Right, might not put the other out of possession or enter for his Right, but ought to sue first for it.

But by the Statute of 32 of H. 8. The most u­sual Trial of Actions real at this day. no discent to take away an Entry may be without five years peaceable possession. And therefore now to bring such Titles to trial, the use is either to enter and bring an Action of trespass, and thereby to try the Title, or to distrein some Cattel upon the ground, and upon a Replevin to avow a dammage Fesant, that by af­firming the Cattell hath trespassed his ground, the interest thereof may thereby be tryed; but the common course is to seale a Lease upon the Land, and so to try it by an Action of Ejectione firmae. Few real A­ctions now used, being full of de­lay.

At this day few real Actions are used, because they are more full of [Page 105] delay, and also they are more pe­remptory and binding against the party: for a former Recovery was a good Plea, but in these personal Actions it is not, for in them the par­ty may bring as many Actions as his purse will maintain.

Also Actions upon the Case for Actions up­on the Case are com­mon. Words are very common.

CHAP. IX. Of Trials allowed by the Laws of England.

AS it is usual amongst men to commence Suits and Actions, so it is of necessity that some certain Form should be prescribed, by which those Variances, Suits and Actions should be brought to Conclusion: so hath the Laws of this Land, and Wisdome of the Law-makers, found out two wayes for the Trial of Suits, Two ways for the Trial of Suits and Variances. which is either by Jury upon the Oaths and Verdict of twelve Free-holders, or else by Battaile between the parties (but this is out of use) or their Champions, or by the Oath of the defendant which is called, Ley Gager.

Some have conceitedly said, that A conceited opinion of Trials. the Trials (except Battaile) have confisted upon the number of twelve with a triple distinction, as twelve Judges for matter in Law, twelve Jurors, and twelve in Wager of Law, for so is the form.

There is a Trial also by the Cer­tificate Trial by Certificate of the Bish­op, &c. of the Bishop for Bastardy and Mariage; also of Infancie, by Inspection of the Court; also of Villanage, by his Kinsfolks; also Death of the Husband by proofs in Dower. But these (especially the lat­ter of these) are not so much in use though allowed by our Laws.

Of which Trials, although Trial by Trial by Battaile not abolished, nor lately used. Battaile being antiently used, and is not yet abolished by any Statute, yet by reason of the unchristian and bloo­dy proceedings thereof, (when the strongest Hand and Heart may over­come the best Right, and losse of Living is determined with losse of Life,) it is therefore obsoleted, and grown out of use. Such Trial by Bat­taile was appointed to be in Tuttle-Field in the 13 Eliz. where the Champions, Lists, Judges, and all being prepared, the Demandant was non-suite, and so that Trial cea­sed: And another was appointed in the same place about the 8 of King Charles 1. but it was taken up and so ended. This Trial was both in civil and criminal Pleas. In civil Pleas [Page 108] it was only in a Writt of right by Champions; in criminal Pleas it was in an appeal of Death by the parties.

Battaile is also termed a Trial in A Trial ter­med Battail but by Writ. a Writ of right, of Advouson and Rationabilibus divisis, and other Writs which concern the Right only; as Fitz-herbert witnesseth: and also in civil Causes the Defendant might sometimes wage Battle himself, as Glanvil saith, lib. 2. Cap 3.

Trial by Oath is (as heretofore) Trials by Oath. used by wager of Law upon Con­tracts without specialtie in an Action of Debt.

This trial about Edw. 3. and Edw. 2. time was used in Actions which began ex maleficio: as in contracts ex stipulatione; for in Trespasses it hath been used, as divers authorities are in the Year-books: But yet of late by reason mens Consciences were found to be large and foul, whereby the Oath of a perjured person for his owne profit might much prejudice an honest Man, the Trial by Oath is Trial by Oath is much pre­vented. much prevented, by turning the for­merly used Action of Debt into an Action upon the Case, wherein no Wager of Law lyeth.

The most common and proper Trial by Jury most frequent and in force. Tryal of Suits in this Kingdom (here­tofore and now in force) is by Ju­ry, that is, by Oath and Verdict of twelve Freeholders, both in Actions reals for Lands, and Actions perso­nals for Contracts and Trespasses. In this Trial, the Jury is not tied only to the Evidence of two men or of more Witnesses, but may find Ʋe­ritatem facti upon Circumstances, or by Witnesses, or sometimes (especi­ally for want of manifest or probable Evidence) upon their own Know­ledges: And in Cases doubtfull con­cerning points of Law the Judges are to deliver Veritatem Juris.

If the Jury erre in their Verdict, Attaint of a Jury erring. an Attaint lyeth against them, where­in the matter must be tried by 24 sufficient and substantial Jurors, and that to be final. If it be found by them that the former Jury hath given a false Verdict and were for­sworn, the party wronged is to be restored to his Right, and the first Jury grievously punished by the Common-law, which punishment is mitigated by the Statute of 23 H. 8.

If upon any Action or Suite com­menced, Error of Judgement how re­formed. the Judges do erre in Judgement in any Court of Record, or that the same be supposed; A Writt of Error lyeth before other Judges superiors. If in the Exche­quer, it lyeth in the Exchequer Cham­ber by the Statute of 31 E. 3 Cap. 12. If in the Common-pleas or Chance­ry in Latine proceedings it lyeth in the Kings-bench; If in the Kings­bench, heretofore it lay only in Par­liament, but now by the Statute of 27 Eliz. in the Exchequer-chamber before the Justices of the Common­pleas and Barons of the Exchequer.

CHAP. X. Of some things in the Ministers and Proceedings of our Laws conceived worthy to be reformed.

BEcause there are divers who do complain much against our Laws, whereof I may be bold to say that many (if not the most part) do not rightly distinguish betwixt the Use and the Abuse of our Laws, The Use and Abuse of our Laws not well di­stinguished by some. or betwixt the Laws themselves, and the ill Practice and Proceedings of some corrupt persons in the handling and trial of them; and for that I have formerly made some Apologie for our Laws in answer of these accu­sations: I hold it as fit in plain and sincere dealing to deliver what defects, or other indirect proceedings I do conceive there are practised in the Trials of Suits, tending to the delay, overburdening, and deluding of the Subjects in their Suits, or to the defrauding of the Law it self The Authors intention. in the withdrawing or declining of it from its natural pure and upright [Page 112] Course: which I shall set down by way of supposition (only as farr as I can conceive) rather than of any peremptory position. And in the same sence have I spoken all the rest; allwayes submitting the same unto deeper Judgement of them that are learned in our Laws.

The Defects whereof I spake be­fore Defects of 2 sorts, that is in Trials & Proceedings of the Law. are of two sorts, Defects in Tri­als, and Defects in the Proceedings of our Law. The first whereof, as I conceive, proceedeth specially from two causes, want of understanding or indifferency in Jurors who trie, want of Integritie in Judges who direct Jurors much in matter of Fact and have the whole power in deciding points of Law.

Touching the former, whereby in Want of un­derstanding in Jurors. course the Verdict of Juries, the Rights, Inheritances, & whole Estates of most of the Subjects within the Kingdome are either tryed or subject to be tryed; and yet in many places the Jurors (for the most part) are found to be simple, of mean capa­citie, and of as small substance in Estate: for either no better are im­pannelled, [Page 113] or if better be, they of best Abilitie and Judgement, do ab­sent themselves; presuming that either by some excuse made for them, or by some other means, they may be dispenced withall, or, if this serve not, the worst is but to pay some small Fine: So usually the Service is imposed on them that are least able to discharge it: Some­times to the no small prejudice of mens Rights; wherein it were to be wished, that either by some farther Laws (or at the least by better Exe­cution of the former Laws) Sheriffs Sheriffs to be compell­ed to im­pannell able men in Ju­ries. were compelled to impannell in Ju­ries none but men able for Judge­ment and Substance; And, that such being impannell'd, a more strict No dispen­sation with Jury men to be permit­ted. Course were taken by the Justices for their better appearance and at­tendance without any kind of dis­pensation or connivence. Care hath been taken to remedie this by the Statute made 16 and 17 Car. 2. 3.

Also another abuse there is concer­ning the impannelling of Jurors wor­thy of reformation, which is, That the Jurors of the principal pannel [Page 114] seldome appearing full, it is found an usual practice for the Plaintiff to request Free-holders (his friends) to Free-holders desired to stand in view that they may be retorned of the Jury. stand ready within view of the Court, to be put into the Tales; therefore to avoid this mischief it were ne­cessary to have a special Oath always administred unto the Jurors, thus added, That they are not requested by either partie or laboured by any for them. It should seem that the like Oath were needfull to be given unto the Sheriff or some severe penaltie appointed against the im­pannelling of Jurors at the nomina­tion of the parties or their freinds, whereby many men have received great hurt and prejudice. Also it The Sheriff and the Jury to have a more speci­all Oath. may be held as requisite that the Jurors had a more special and parti­cular Oath when they are summon­ed, and do appear (but before they are sworn of the Jurie,) to know whether they have been forestalled by Informations or Persuasions, as well as that they will give their Verdict without any particular re­spects to either side; for it is like they will make more conscience, be­ing [Page 115] examined upon their Oath before they come to the Trial than after, when they have suddenly swallowed the Oath without publick examina­tion of the Justices upon Oath, or particular and private of their own Consciences by this Oath: And al­though there is good provision alrea­dy taken by our Law, that exception and chalenge may be taken upon rea­sonable and just causes allowed by the Law, yet since this cannot be certainly known, who is laboured and dealt withall before-hand, but by the examination of a mans con­science upon a mans own Oath; I am perswaded that this would pre­vent many corruptions in Trials by Juries; whereunto the nature of man is subject to be drawn, by solicitati­on of friends, promise of reward, or fear of displeasure. And it would take away the scandal layed upon the Trial of Juries, which as it is different from the course of other Laws, so being well looked to by these and the like cautions, there is no doubt but it is a most excellent kind of Trial, especially in matters [Page 116] of Fact whereunto it is principally ap­plied; and being thus exactly execu­ted, I will be bold to say, that it excells the Trialls of all other Laws, and is one of the worthiest parts of proceedings in our law, whatsoever some Calumniators have said to the contrary, whereof he that shall de­sire to be farther satisfied, may find it fully demonstrated in that noble and learned Chancellor of England Fortescue his Book.

Touching the other point where­in there may be some prejudice in Touching the Judges sinceritie. the Trials of Suits for want of since­ritie in the Judges, although there are at this time as reverend, upright, and learned Judges, as hath been at any time within this kingdome: yet that amongst them, there have been always some who might be some­times led by affection or by some other private respects, may not be denied: unless we should think, that they all and every of them, had more priviledge of not crring, or of not affecting, liking or disliking, than either any other Judges or men of any other profession in the world [Page 117] are induced withall: Therefore as a great Prince was content (nay did command) that every day one should come into his Chamber, and put him in mind of his estate, and to tell him these words: Remember that thou art a mortal Man. In like sort it is a thing fit to be considered, whether it were not convenient, that the Judges every Term and at every Assise, or at An addition to the Judg­es Oath. least once every year, should publick­ly in Court and in open audience of the people take an Oath, That they have not received, nor will receive any gift or reward, or promise of re­ward, for their favour, in any Cause heard or to be heard before them; nor will for favour, fear, or affection, incline to either partie, otherwise than as the very truth of the matter shall move; nor shall receive private Information, Messages, or Letters of Recommendation to draw them a­side from sincerity, or to shew favour to any partie: but that they shall speedily make known the same in open Court: By which means the Judges shall be less importuned by men of power, and shall keep their [Page 118] Consciences clear, and unspotted. If the like Oath were given to the A means for the Judges to avoid im­portunitie, &c. Masters of the Chancery, who in some Cases, and at some times, do sit as Judges, and most commonly by their Reports do much guide and direct the Decrees in that Court; it might perchance avoid much imputation to themselves and prejudice to others. But against this there is no doubt but there will be many Objections made. As first, That this Oath being new Objections against giv­ing the Oath to the Judg­es. and so often taken would argue dis­trust in the uprightness of the Judg­es, and that it will be a disgrace not only unto them but to the Place wherein they sit, and consequently an imputation to the Justices of the Realm; that they should not be trust­ed upon an Oath, (as Christians ought to be in other Cases.) And next, that it will be an impeachment of reputation to all former Judg­ments, and Judges, who were not ty­ed with so strict a Band. And there­fore if this were now necessary, then were they in former times let goe with too long raines of libertie and of looseness.

That which may be answered to Answ. to these Obje­ctions. these Objections is this: First, That this new, more strict and frequent Oath doth not so much argue dis­trust in the Judges as put them in minde of their Duties; no more than the often calling of a Steward or o­ther great Officer to a strict and often Accompt doth presuppose that his Faith is alwaies doubted; nay, it is the best means for his discharge (which most wise and honest men do much desire:) and so in this Case it may be said, that this Oath, thus taken, is the strongest Argument that may be to free the Judges from suspi­cion of Corruption (whereto they may many times be subject causles­ly:) for what man of any charitable and reasonable consideration will conceive, but that he that is more of­ten and strictly sworn to doe his du­ty will be more carefull to discharge it, than he who but once in his life re­ceiveth that Oath? And for some part of this Oath it is such, that no Judges of this Land have been for­merly sworn unto, and yet it is such as, by the opinion of some both wise [Page 120] and learned, is held most necessary.

For the other Objections: That it will be a disgrace to their Places, and to precedent Judges, and Judgments, that these are oftner and more strict­ly sworn than were former Judges. Divers do deem that neither of these consequents will ensue. One reason is, That if this Oath be a disgrace to precedent or to present Judges; then the like would ensue, That an Oath taken by a Bishop of this Land (not long since) of his clearness from Si­mony, and from giving any thing for his Bishoprick, would be a disgrace to him or to his Predecessors, who had not taken the like Oath before. Yet I think no man will conclude so, but rather, that this is a worthie Pre­cedent, fit to be followed and to be left unto posterities. Also it may be said, the more multiplicitie of Suits that doth increase (as indeed they doe dailie) the more caution is to be used, and the more care to be enjoyn­ed unto the Judges in the Trial of them. Secondly, The former Judges followed the Oath which was given them, and therefore no disgrace to [Page 121] them that their Successors have a more strict Oath; nor is it any dis­grace to them that receive it: be­cause it belongs unto latter times, to provide for that which former Ages have left undone. And in this new Oath, no Judge is singled out, or made a mark by himself, which if he were, it might indeed tend much to his disgrace, as a great argument of distrust in him. But whether this Oath, or any part of it, and whether the latter, if not the former, be to be used, or whether it be often or seldom to be admini­stred; is a matter which I submit wholly to the Censure of such as are most Judicial and fit in the highest seats of Authority and Judgement.

To the second Point, spoken of before, which concerneth the over­burthening of the Subjects by delays and by diverting the right Proceed­ings of the Law. This is not to be attributed to the Laws themselves nor to the Judges thereof, but to the corrupt ministers, officers, and pra­ctitioners of the Law, who do (as most men in other Faculties are ac­customed) [Page 122] prefer their own private profit before the publick utility: They from whom these faults do flow (which are commonly but not justly imputed to the Laws) are, amogst others, these; that is to say, Councellors at Law, Atturneys, Offi­cers in Courts of Records Sheriffs and their Bailiffes, &c.

For the first sort, which are the Councellors at Law and Barristers, as they are called, the right Proceed­ings of the Law (in divers particular mens Cases) in Suits, is many times diverted, and sometimes overthrown by their multitude, insufficiency, ad­vice of delatory, or defective Pleas, by their taking of excessive Fees, and by their absenting of themselves from the Barrs, and places appointed to plead for their Clients, after that they have taken Fees.

First, the multitude of Councellors Multitude of Councel­lors. at Law and outer Barristers is so great, that many of them are not able to maintain themselves, and some have few or no Clients at all, especially such of the second sort as were named to be insufficient, who [Page 123] if any Suitors at Law come unto them for Counsel by reason of their acquaintance, kindred, or other pri­vate respects, they many times send them away unsatisfied, or if they re­ly on such weak Councellors, some­times their good Causes (for want of sound Counsel) are overthrown. The reason of the multitude and insufficiency of many of these Coun­cellors The Insuffi­ciency of di­vers Coun­cellors at Law. at Law (as I conceive it) is, because divers of them are admitted to the Barr before they have read over half the Volumes of the Law, and before they have with any good Commendation or allowance, per­formed the exercises at Mootes, and at Readings, which is requisite for the place, and for the testimony of their Profession and sufficiency: but having lived so long in one of the Inns of Court, as is prescribed by the orders of that house wherein they are; although they be (and are known to be) no profitable or painfull students: yet, by favour they find meanes to be called to the Barr, many times to their own hin­drance, and much to the hurt of such [Page 124] as have their Counsell. The second Cause of this their insufficiency is, for that they have of late been permitted to plead at Barr, and to put their hands unto Pleadings, as soon as they are made Barristers: whereas in former times it was neither usual or allowed, that they should either plead at Barr or put their hands to Pleadings till three years after they were called: and in those times they were kept more hardly and strictly to their Mootes and Pleadings in those houses wherein they con­tinued. The Inconveniencie of this generall, untimely and promis­cuous kinde of Pleading and counsel­ing by all sorts of Lawyers in Rome (aswell the unlearned as the able and sufficient) was foreseen and in some sort prevented by Augustus the Emperor in his time, who ordained Augustus his restraint of Lawyers in Rome. that no Lawyer should practise without his royal assent and approba­tion first had. If the King's Majestie did take this course with our Com­mon Lawyers, or else assigned some others of greatest authoritie and Judgement in the Law to take [Page 125] good notice and assurance of their sufficiency before they should be ad­mitted to practise, there would not be such a deluge of insufficient Councellors at Law within this Kingdome, by whose Ignorance and want of knowledge many mens Inheritances and Estates are over­thrown.

For their perillous advice of de­lays, The ill ad­vice of Councellors given to their clients. and of other evasions to procure gain unto themselves, and less unto others: it is sure that there are di­vers Councellors at Law who study nothing more than (as it may be tru­ly termed) the Gall of the Law; how to seek evasions, and to defeat the true meaning of the Law, and aswell to draw some into danger of the Law and to overthrow the Right of others by their own incircumspe­ction, by their Adversaries cunning, and by the advices of such wicked Councellors against whom there should be some sharp Law made for their punishment: or if not so, yet it should seem requisite that every Councellor at the Law, should An Oath ne­cessary to be given unto Councellors at Law. (when he is called to the barr) take [Page 126] some special Oath for his upright dealing in the advice of his Clients; to proceed according to Equity, and that he should not lead them into any by paths of indirect and un-conscio­nable evasions, contrary to the true meaning and upright course of Law, and of a good Conscience. By this means (if they who take this Oath have any good Conscience in them) the expence of much money in Law may be saved, and honest peaceable men kept from the trouble of quarrel­some and unquiet Neighbors in Caus­less Suits.

Another abuse there is offered by The exces­sive Fees that Coun­cellors take. the Councellors at Law in the taking of excessive Fees, which late Custome their extream covetousness, and the necessities of mens Estates in their Suites have introduced: For of late years (and in the memory of many men yet living) xx s. was a good Fee for a great Councellor, not onely to move but to plead at the Barr; and if a Serjeant at Law had x s. for to argue a Case, he thought himself well rewarded. But now what Councellor of account and of good [Page 127] practice is there, that will think xl s. a sufficient recompence if he do ar­gue any mans Case at the Barr? nay that Serjeant at Law who hath but v l. given for such a purpose, will goe thither with an ill-will, or else not come at all; besides how often Many Fees every Term for one Cause. they must be feed in one Case, even in one Term, although of the poorest Client they have, (if they have occa­sion to come often unto them) com­mon experience, and many poor mens Purses, can too well tell. There­fore when it pleased the King's Ma­jesty at his first coming to this Crown of England graciously to take notice of this enormity, and to make known his Pleasure that indifferent and rea­sonable Fees should be taken by the Councellors at Law of their Clients, some of them did restore (or at least offer to restore) part of the Fees pro­fered unto them, which continued no longer with any of them than the dread of punishment or of dan­ger drew them thereto. But where it is alledged by some, that the suf­ficiency of all Councellors is not alike, All Lawyers not of like sufficiency or merit. nor their pains and travell all alike, [Page 128] and therefore their Recompence can­not be equally measured, no more than in other Faculties can the pro­fessors thereof merit as much the one as the other.

To this I think it may be easily an­swered, That although the sufficien­cy and pains of every one be not answerable unto the best, yet there should some proportion be limited, what the best might deserve, and how much he should take in such Some pro­portion of Fees to be limited. and such particular Cases; by which also somewhat a correspondent Re­compence might be awarded to others of inferior degrees and suffi­ciency, though not to be scanted by the penny yet at the least to be rated by the pound, whereby a man of reasonable Estate (in a suite of reaso­nable value) might compass his Right without his undoing: and although the Labourer be worthy of his hire, yet is it hard, that the Labourer for his hire should have the value of the Land whereon he laboureth or more, as many Lawyers have.

But chiefly divers of the Coun­cellors do offend and abuse their [Page 129] Clients (sometimes to their utter undoing) when some of them do take round Fees against a day of Hearing, and yet neither come to the place, or if they do they depart before it be heard, and sometimes in the midst of the Argument being sent for un­to another Barr in another Cause, where perchance their Fee is greater or their Client of more reputation or nearer unto them, whereby men de­pending on them according to pro­mise after Fees taken, receive much prejudice, and sometimes the subver­sion of their Estates. In this Case many men have much wished that either they were enjoyned to plead at one Barr only, (according to anti­ent order, so should they be certainly found, and their Clients not frustra­ted of their help) or else if that were not thought fit, yet that some severe punishment may be ordained and afflicted on such Councellors as take Fees for several Courts in one day, and do break with their Clients.

The 2^d sort of Ministers towards The Abuse of Attor­nies. the Law, who do mislead the people in their Suits, and sometimes make [Page 130] them misspend their money in un­dertaking of unjust Suits, and setting on of men to causeless quarrels, (for their own private commodity,) are the Attorneys at Law, who do di­vers ways offend, and many of them offer much wrong. First, for their The Multi­tude of At­tornies. Multitude; for they have increased to such a huge number of later years, that they cannot chuse but make much work for the Lawyers and Law in the parts wherein they live; as in the Courts of Records at West­minster. First, to begin with the Court of Common-pleas; Since this Attornies of the Com­mon-pleas. Chief Justice of that Court came to his Place, he commanding an Enqui­ry to be made by Jury, of the num­ber and condition of Attornies be­longing to that Court; it is said that there were no less than 800. of them found already by Jury: so that the Complaint is common, that every Scrivener, and other mens Clerks, who have desired that place, (paying a certain sum,) have been all thereto admitted, to the no small hurt of the Subjects of this Kingdom. But if the Lord chief Justice, who hath begun [Page 131] this laudable course, do perfect it, with out remission, to weed out both the excessive surplusage of their number, and discharge all them that are ill conditioned, or not of suffici­ent understanding and experience, (as no doubt but that there are di­vers of that sort,) and no question but he will doe it, (especially if he be required thereto:) By this good ex­ample, other Courts of Justice may be purged of their ill members, to the generall good of the whole Realm.

There is the like, though not so great an excesse of Attornies, in the Attornies in the Kings bench. Kings Bench at Westminster, where­in there are estimated to be about 200, and yet within the memory of some yet living, there were not a­bove eight or twelve at the most; for indeed they ought not to be o­ther than the Prignatories Clerks of that Court. But besides these (who only make out Writts) there are nine parts of ten that are reckoned Attor­nies Attornies at large. at large, as they call them, who neither take Oath, nor have any power to make out Writts, but yet every one of them keeps a Clerk, [Page 132] and some two, to write under them, who must be maintained by their Masters countenance, and sometimes they maintain their Masters, by bringing Causes, and Clients unto them: these swarming in so great numbers, cannot live, and grow rich (as many of them do) without they hearten and increase Suits and stirs betwixt their neighbours, which enormities might partly be reformed by the Statutes already made, if they were put in execution and by some other provision; for it should seem Provision made by former Laws against At­tornies. that former times have had trial of their abuses, and care to reform them, though there were not then such urgent cause to take a sharp course with them as at this instant.

By the Statute of the 4 of Henry the 4. every Attornie should be sworn truly to serve in their Offices, but now no Oath at all given unto many of them, especially to deal justly and uprightly, other than for the profit of their Court. By the same statute, if any Attornie were openly found in default, by Record or other­wise, he should forswear the Court, [Page 133] and never after be allowed to pro­secute any Suite in any of the King's Courts.

By a late Statute made 3 Jacobi nuper Regis Angliae none should be henceforth admitted Attornies in any of the King's Courts of Record, but such as have been brought up in the same Courts, or have been well practised in soliciting of Causes, and have been found of honest disposition; which Statute (so well and lately made) is already set aside, and grown out of use.

By the same Statute no Attornie shall be allowed from his Client for any Fee or for any Disbursement in charge of Law without a ticket subscribed with the hands of them to whom the same is given or paid, and shall give a bill, subscribed with his hand, of all such Charges concern­ing the said Suits. But yet we see this Law no sooner made, but already altogether infringed by the Attornies and Solicitors: for it may be, that some of them do deliver a Bill of the Charges, but who is there that bring­eth a Ticket under the hands of [Page 134] the Councellors and Officers to whom the same is paid? This is an abuse worthy to be reformed, and this Statute very necessary to be exe­cuted.

In the 33 year of King Henry the 6. a Law was made that there should be but six common Attornies in Norffolk, six in Suffolk, and two in Norwich. If then the Country were pestered with Attornies, and that a Law must be made to ascertain the A Law al­ready made necessary to be executed for the ad­mission of Attornies. number (which likewise should be elected and admitted by the two chief Justices,) how much more need­full is it now to have the like Law of restraint for all the Counties of this Kingdom, when we see how, even in those Shires (then thus pro­vided for) there are far greater num­bers of Attornies, and such for the most part as they are specially noted (by them who know these Coun­tries) to be full of cunning, and many of them nourishers of contenti­on, and contenders themselves with their neighbours. These being com­monly the Conduits that convey Suits and Gain to covetous and un­conscionable [Page 135] men desiring Law, with the losse and impoverishment of many: there is therefore great need that their numbers should be lessened, and their dispositions, who shall be allowed to practise, well known to be good and honest.

A third sort there are of the mi­nisters of our Law which do offer oppression and wrong unto the sub­jects of this Kingdom in their Suits. And they are the Officers of the Courts of Records and their Clerks, Abuse of Officers and their Clerks in the Courts of Record. whereof many do exact unreasonable and unlimited Fees, not (or very seldome) vouchsafing to set down in a note under their hands what their Fees are, but demanding so much, or else nothing must be done, or if it be first done they will often detain it untill their own demands be satisfi­ed. So the Subject must give whatso­ever No certainty of Fees in most Courts it pleaseth them to ask. Where­in it hath been the hearty desire of such as wish well unto their Coun­try (without any private respect unto themselves) that there might be a certainty of Fees set down for every Court, and the same to remain in [Page 136] written Tables in open Court, subject to every mans view, whereby the Subjects who have Suits in Law may not have so great cause of loss, and of complaint as now they have. Of the same nature (and indeed a part of this exaction) is the excessive Excessive Rates for the writing of Copies. Rates taken for writing the Copies of all Bills, and Answers, Replicati­ons, and Rejoinders, and of all other Records within the Court of West­minster and the Offices belonging to the same: First for the foule and Wastfull Writing of purpose. wastfull Writing, next for the few numbers of Lines in every Sheet, and for the smallness of the Paper where­in they write; they alwayes de­manding so much for the sheet, how few soever of lines, letters or syllables there be in the same; and allwayes they strive to write the least they can, with great letters, full of large dashes, to make the more distance, and very spacious lines for their more Gain and the greater Charge of them who are forced to take out these Copies, whereby they raise great summes of mony out of the Subjects purses, keep good houses, [Page 137] purchase much living, enrich them­selves and impoverish many Sutors at Law. If that some reasonable stint of this Writing and the certainty of Fees withall might be set down and observed, it would without doubt yield great contentment, pro­sit and ease unto the people of this Land, who, for the most part, feel, and some sink under this burden.

Besides these before mentioned Abuses in the Ministers and Officers of our Law, there are some other de­clinations and with-drawings from the right Proceeding of Law by such as seek to pervert the same. As The Judges select cer­tain Law­yers, whom they hear most wil­lingly and often. first in every Court of Record in Westminster, the Judges have certain selected men, on whom they are pleased to bestow their favours, in yielding them ready hearing before others; which being perceived, they are the more resorted to (and must have the more Fees.) This increaseth the charge of the subjects, and yet many times disappointeth them of their expectation. And although it be not unreasonable that the Judge should extend his favour more unto [Page 138] some than unto the rest (by hearing them before others) yet considering the inconveniency of this favour, it were far better forborn, and to be some way else shewed unto them that deserve it. There is also some Rules of the Courts un­certain and unknown to the Judges. defect in the Courts, concerning the Rules of the Courts, that sometimes the Judges themselves are ignorant of the Rules of their Courts, touching the times of Answer, Reply, Rejoyn­der, Imparlance, with the like cir­cumstances, whereby they are forced to ask the opinions of the antient­est and best experienced Attornies and Officers of the Court, touching those Rules; where it were much better that time were taken by the Judges to examine these Rules, wherein perchance somewhat might be amended for the more speedy ex­ecution of Justice, and the same set down in writing might be more certain and subject to all mens knowledge, with lesse hindrance to Suitors and to their Causes.

There are also some Courts in Westminster, where the Judges (as for example the Barons of the Ex­chequer) [Page 139] do alter upon new motions out of Court (as in the Chequer Chamber or in other places) the Or­ders Alteration of Orders out of the Court. made in Court. And that which was publickly ordered by all the Barons in open Court is often re­versed by one of the Barons; when either the plaintiff or defendant bringeth his Counsel, and upon some new information, getteth the former Order to be dissolved, which tendeth much to the Trouble, Charge and Delay of many Suitors.

In the Kings Bench and some­where else (as it is said) writing out of Record must be twice or thrice unnecessarily copied, as upon a Pro­hibition Unnecessary Copies to be taken out. a copie of the Suggestion, then after Declaration, a new Copy, after issue or Demurrer, a third Copy; whereas each of them sometimes cost three, four or five pounds; and yet, with a little alteration, it is thought that one might serve for all.

The incertainty and intricate am­biguity Incertainty and intrica­cy of Plead­ings. of Pleadings in the Courts of Records bring much dammage and danger unto the Subjects of this [Page 140] Kingdom, wherein many men (wish­ing well unto our Laws) have ex­ceedingly desired, That either some certain Formes of these Pleadings (if it were possible to be performed) might be drawn by expert men, and the same considered and corrected by the Judges, might stand for good: and those Forms to be allowed as in Rome, at the first, the Forms of Actions were given to the Actors of the Law by the Pretors:

Or if this may not be performed, Advantages of pleadings not to be so penal. yet that some other Course were taken upon the advantage of a Plead­ing mistaken than is in the Case be­twixt the King and his Subject.

If also in Actions personal a shorter A shorter course to be taken in A­ctions per­sonal. and more certain Course were taken than is by our Common-law, where­of somewhat hath been spoken before (as that which the Civil Law allow­eth, or some other such like) for speedy and direct Trial without eva­sion or circumvention; it would yield no small profit unto the People that are forced to prosecute these Suits.