Page images

grene, neglect, and habit of disobedience upon other wholesome laws, that are fit to be continued in practice and execution; so that our laws endure the torment of Mezentius:

"The living die in the arms of the dead." Lastly, There is such an accumulation of statutes concerning one matter, and they so cross and intricate, as the certainty of law is lost in the heap; as your majesty had experience last day upon the point, Whether the incendiary of Newmarket should have the benefit of his clergy.

Obj. II. That it is a great innovation; and, innovations are dangerous beyond foresight.

this kingdom, and gave them the strength of a fagot bound, which formerly were dispersed.

The statutes of King Edward the First were fundamental. But, I doubt, I err in producing so many examples: for, as Cicero saith to Cæsar, so may I say to your majesty; "Nil vulgare te dignum videri possit."

Obj. III. In this purging of the course of the common laws and statutes, much good may be taken away.

Resp. In all purging, some good humours may pass away; but that is largely recompensed by lightening the body of much bad.

Obj. IV. Labour were better bestowed, in bringing the common laws of England to a text law, as the statutes are, and setting both of them down in method and by titles.

Resp. All purgings and medicines, either in the civil or natural body, are innovations: so as that argument is a common place against all noble reformations. But the truth is, that this work Resp. It is too long a business to debate, ought not to be termed or held for any innovation whether "lex scripta, aut non scripta," a text in the suspected sense. For those are the inno-law, or customs well registered, with received vations which are quarrelled and spoken against, and approved grounds and maxims, and acts and that concern the consciences, estates, and fortunes of particular persons: but this of general ordinance pricketh not particulars, but passeth "sine strepitu." Besides, it is on the favourable part; for it easeth, it presseth not: and, lastly, it is rather matter of order and explanation than of alteration. Neither is this without precedent in former govern


The Romans, by their decemvirs, did make their twelve tables; but that was indeed a new enacting or constituting of laws, not a registering or recompiling; and they were made out of the laws of the Grecians, not out of their own customs.

In Athens they had sexviri, which were standing commissioners to watch and to discern what laws waxed improper for the time; and what new law did, in any branch, cross a former law, and so, "ex officio," propounded their repeals.

King Lewis XI. of France, had it in his intention to have made one perfect and uniform law, out of the civil law, Roman, and the provisional customs of France.

Justinian the emperor, by commission directed to divers persons learned in the laws, reduced the Roman laws from vastness of volume, and a labyrinth of uncertainties, unto that course of the civil law which is now in use. I find here at home of late years, that King Henry VIII., in the twenty-seventh of his reign, was authorized by parliament to nominate thirty-two commissioners, part ecclesiastical, part temporal, to purge the canon law, and to make it agreeable to the law of God, and the law of the realm; and the same was revived in the fourth year of Edward VI., though neither took effect.

resolutions judicial, from time to time duly entered and reported, be the better form of declaring and authorizing laws. It was the principal reason or oracle of Lycurgus, that none of his laws should be written. Customs are laws written in living tables, and some traditions the church doth not disauthorize. In all sciences they are the soundest, that keep close to particulars; and, sure I am, there are more doubts that rise upon our statutes, which are a text law, than upon the common law, which is no text law. But, howsoever that question be determined, I dare not advise to cast the law into a new mould. The work, which I propound, tendeth to pruning and grafting the law, and not to ploughing up and planting it again; for such a remove I should hold indeed for a perilous innovation.

Obj. V. It will turn the judges, counsellors of law, and students of law to school again, and make them to seek what they shall hold and advise for law; and it will impose a new charge upon all lawyers to furnish themselves with new books of law.

Resp. For the former of these, touching the new labour, it is true it would follow, if the law were new moulded into a text law; then men must be new to begin, and that is one of the reasons for which I disallow that course.

But in the way that I shall now propound, the entire body and substance of law shall remain, only discharged of idle and unprofitable or hurtful matter; and illustrated by order and other helps, towards the better understanding of it, and judgment thereupon.

For the latter, touching the new charge, it is not For the laws of Lycurgus, Solon, Minos, and worthy the speaking of in matter of so high imothers of ancient time, they are not the worse, be-portance; it might have been used of the new cause grammar scholars speak of them: but things too ancient wax children with us again.

translation of the Bible, and such like works. Books must follow sciences, and not sciences

Edgar, the Saxon king, collected the laws of books.

THIS work is to be done, to use some few words, which is the language of action and effect, in this manner.

the judgment of the composers of this work, to decide the law either way, except there be a current stream of judgments of later times; and then I reckon the contrary cases amongst cases obsolete, of which I have spoken before: nevertheless, this diligence would be used, that such In the first of these, three things are to be cases of contradiction be specially noted and dene:

It consisteth of two parts; the digest or recompiling of the common laws, and that of the sta


collected, to the end those doubts, that have been

1. The compiling of a book "De antiquitati- so long militant, may either, by assembling all bus juris."

the judges in the exchequer chamber, or by

2. The reducing or perfecting of the course or parliament, be put into certainty. For to do Corps of the common laws. it, by bringing them in question under feigned parties, is to be disliked. 66 Nihil habeat forum

3. The composing of certain introductive and auxiliary books touching the study of the laws.

ex scena."

For the first of these, all ancient records in Fourthly, All idle queries, which are but semiyour Tower, or elsewhere, containing acts of par- naries of doubts, and uncertainties, are to be left liament, letters patents, commissions, and judg-out and omitted, and no queries set down, but of ments, and the like, are to be searched, perused, great doubts well debated, and left undecided and weighed and out of these are to be selected those that are of most worth and weight, and in order of time, not of titles, for the more conformity with the year-books, to be set down and registered, rarely in "hæc verba;" but summed with judgment, not omitting any material part; these are to be used for reverend precedents, but not for binding authorities.

For the second, which is the main, there is to be made a perfect course of the law in serie temporis," or year-books, as we call them, from Edward the First to this day in the compiling of this course of law, or year-books, the points following are to be observed.

First, All cases which are at this day clearly no law, but constantly ruled to the contrary, are to be left out; they do but fill the volumes, and season the wits of students in a contrary sense of law. And so, likewise, all cases, wherein that is solemnly and long debated, whereof there is now no question at all, are to be entered as judgments only, and resolutions, but without the arguments, which are now become but frivolous: yet, for the observation of the deeper sort of lawyers, that they may see how the law hath altered, out of which they may pick sometimes good use, I do advise, that upon the first in time of those obsolete cases there was a memorandum set, that at that time the law was thus taken, until such a time, &c.

Secondly, Homonymiæ, as Justinian calleth them, that is, cases merely of iteration and repetition, are to be purged away: and the cases of identity, which are best reported and argued, to be retained instead of the rest; the judgments, nevertheless, to be set down, every one in time as they are, but with a quotation or reference to the case where the point is argued at large but if the case consist, part of repetition, part of new matter, the repetition is only to be omitted.

Thirdly, As to the Antinomiæ, cases judged to the contrary, it were too great a trust to refer to

for difficulty; but no doubting or upstarting queries, which, though they be touched in argument for explanation, yet were better to die than to be put into the books.

Lastly, Cases reported with too great prolixity would be drawn into a more compendious report; not in the nature of an abridgment, but tautologies and impertinences to be cut off: as for misprinting, and insensible reporting, which many times confound the students, that will be "obiter" amended; but more principally, if there be any thing in the report which is not well warranted by the record, that is also to be rectified: the course being thus compiled, then it resteth but for your majesty to appoint some grave and sound lawyers, with some honourable stipend, to be reporters* for the time to come, and then this is settled for all times.

FOR the auxiliary books that conduce to the study and science of the law, they are three: Institutions; a treatise "De regulis juris;" and a better book "De verborum significationibus," or terms of the law. For the Institutions, I know well there be books of introductions, wherewith students begin, of good worth, especially Littleton and Fitzherbert's "Natura brevium;" but they are noways of the nature of an institution; the office whereof is to be a key and general preparation to the reading of the course. And principally it ought to have two properties; the one a perspicuous and clear order or method; and the other, a universal latitude or comprehension, that the students may have a little prenotion of every thing, like a model towards a great building. For the treatise "De regulis juris," I hold it, of all other things, the most important to the health, as I may term it, and good institutions of any laws: it is indeed like the ballast of a ship,

This constitution of reporters I obtained of the king, after I was chancellor; and there are two appointed with 100 a year apiece stipend.

to keep all upright and stable; but I have seen little in this kind, either in our law or other laws, that satisfieth me. The naked rule or maxim doth not the effect: It must be made useful by good differences, ampliations, and limitations, warranted by good authorities; and this not by raising up of quotations and references, but by discourse and deducement in a just tractate. In this I have travelled myself, at the first more cursorily, since with more diligence, and will go on with it, if God and your majesty will give me leave. And I do assure your majesty, I am in good hope, that when Sir Edward Coke's Reports, and my rules and decisions shall come to posterity, there will be, whatsoever is now thought, question, who was the greater lawyer? For the books of the terms of the law, there is a poor one, but I wish a diligent one, wherein should be comprised not only the exposition of the terms of law, but of the words of all ancient records and precedents.

For the abridgments, I could wish, if it were possible, that none might use them, but such as had read the course first, that they might serve for repertories to learned lawyers, and not to make a lawyer in haste: but since that cannot be, I wish there were a good abridgment composed of the two that are extant, and in better order. So much for the common law.

FOR the reforming and recompiling of the statute law, it consisteth of four parts.

1. The first, to discharge the books of those statutes, where the case, by alteration of time, is vanished; as Lombards Jews, Gauls half-pence, &c. Those may nevertheless remain in the libraries for antiquities, but no reprinting of them. The like of statutes long since expired and clearly

repealed; for if the repeal be doubtful, it must be so propounded to the parliament.

2. The next is, to repeal all statutes which are sleeping and not of use, but yet snaring and in force: in some of those it will perhaps be requisite to substitute some more reasonable law, instead of them, agreeable to the time; in others a simple repeal may suffice.

3. The third, that the grievousness of the penalty in many statutes be mitigated, though the ordinance stand.

4. The last is, the reducing of concurrent statutes, heaped one upon another, to one clear and uniform law. Towards this there hath been already, upon my motion, and your majesty's direction, a great deal of good pains taken; my Lord Hobart, myself, Serjeant Finch, Mr. Heneage Finch, Mr. Noye, Mr. Hackwell, and others, whose labours being of a great bulk, it is not fit now to trouble your majesty with any further particularity therein; only by this you may perceive the work is already advanced: but because this part of the work, which concerneth the statute laws, must of necessity come to parliament, and the Houses will best like that which themselves guide, and the persons that themselves employ, the way were to imitate the precedent of the commissioners for the canon laws in 27 Hen. VIII., and 4 Edw. VI., and the commissioners for the union of the two realms, "primo" of your majesty, and so to have the commissioners named by both Houses; but not with a precedent power to conclude, but only to prepare and propound to parliament.

This is the best way, I conceive, to accomplish this excellent work, of honour to your majesty's times, and of good to all times; which I submit to your majesty's better judgment.

[blocks in formation]

of God himself, is fitter to be named for honour's sake to other lawgivers, than to be numbered or ranked amongst them. Minos, Lycurgus, and Solon, are examples for themes of grammar scholars. For ancient personages and characters, now-a-days, use to wax children again; though that parable of Pindarus be true, the best thing is water: for common and trivial things are many times the best, and rather despised upon pride, because they are vulgar, than upon cause or use. Certain it is, that the laws of those three lawgivers had great prerogatives. The first, of fame, because they were the pattern amongst the Grecians: the second of lasting, for they continued longest without alteration: the third, of a spirit of reviver, to be often oppressed, and often restored.

Amongst the seven kings of Rome four were lawgivers: for it is most true, that a discourser of Italy saith; "there was never state so well swaddled in the infancy, as the Roman was by the virtue of their first kings; which was a principal cause of the wonderful growth of that state in after-times."

age that followed his times for five successions. | to the Hebrews, because he was the scribe But, kings, by giving their subjects good laws, may, if they will, in their own time, join and graft this golden head upon their own necks after their death. Nay, they may make Nabuchodonozor's image of monarchy golden from head to foot. And, if any of the meaner sort of politics, that are sighted only to see the worst of things, think, that laws are but cobwebs, and that good princes will do well without them, and bad will not stand much upon them; the discourse is neither good nor wise. For certain it is, that good laws are some bridle to bad princes, and as a very wall about government. And, if tyrants sometimes make a breach into them, yet they mollify even tyranny itself, as Solon's laws did the tyranny of Pisistratus and then commonly they get up again, upon the first advantage of better times. Other means to perpetuate the memory and merits of sovereign princes are inferior to this. Buildings of temples, tombs, palaces, theatres, and the like, are honourable things, and look big upon posterity but Constantine the Great gave the name well to those works, when he used to call Trajan, that was a great builder, Parietaria, wallflower, because his name was upon so many walls: so, if that be the matter, that a king would turn wall-flower, or pellitory of the wall, with cost he may. Adrian's vein was better, for his mind was to wrestle a fall with time; and being a great progressor through all the Roman empire, whenever he found any decays of bridges, or highways, or cuts of rivers and sewers, or walls, or banks, or the like, he gave substantial order for their repair with the better. He gave, also, multitudes of charters, and liberties for the comfort of corporations and companies in decay: so that his bounty did strive with the ruins of time. But yet this, though it were an excellent disposition, went but in effect to the cases and shells of a commonwealth. It was nothing to virtue or vice. A bad man might indifferently take the benefit and ease of his ways and bridges, as well as a good; and bad people might purchase good charters. Surely the better works of perpetuity in princes are those that wash the inside of the cup; such as are foundations of colleges, and lectures for learning and education of youth; likewise foundations and institutions of orders and fraternities, for nobleness, enterprise, and obedience, and the like. But yet these also are but like plantations of orchards and gardens, in plots and spots of ground here and there; they do not till over the whole kingdom, and make it fruitful, as doth the establishing of good laws and ordinances; which nakes a whole nation to be as a well-ordered college or foundation.

This kind of work, in the memory of times, is rare enough to show it excellent: and yet, not so rare, as to make it suspected for impossible, inconvenient, or unsafe. Moses, that gave laws

The decemvirs' laws were laws upon laws, not the original; for they grafted laws of Græcia upon the Roman stock of laws and customs: but such was their success, as the twelve tables which they compiled were the main body of the laws which framed and wielded the great body of that estate. These lasted a long time, with some supplementals and the Pretorian edicts "in albo;" which were, in respect of laws, as writing tables in respect of brass; the one to be put in and out, as the other is permanent. Lucius Cornelius Sylla reformed the laws of Rome: for that man had three singularities, which never tyrant had but he; that he was a lawgiver, that he took part with the nobility, and that he turned private man, not upon fear, but upon confidence.

Cæsar long after desired to imitate him only in the first, for otherwise he relied upon new men; and for resigning his power Seneca describeth him right; "Cæsar gladium cito condidit, nunquam posuit," "Cæsar soon sheathed his sword, but never put it off." And himself took it upon him, saying in scorn of Sylla's resignation; "Sylla nescivit literas, dictare non potuit," "Sylla knew no letters, he could not dictate." But for the part of a lawgiver, Cicero giveth him the attribute; "Cæsar, si ab eo quæreretur, quid egisset in toga; leges se respondisset multas et præclaras tulisse;" "If you had asked Cæsar what he did in the gown, he would have answered, that he made many excellent laws." His nephew Augustus did tread the same steps, but with deeper print, because of his long reign in peace; whereef one of the poets of his time saith,

"Pace data terris, animum ad civilia vertit Jura suum; legesque tulit justissimus auctor.' From that time there was such a race of wit and

authority, between the commentaries and decisions of the lawyers, and the edicts of the emperors, as both law and lawyers, were out of breath. Whereupon, Justinian in the end recompiled both, and made a body of laws such as might be wielded, which himself calleth gloriously, and yet not above truth, the edifice or structure of a sacred temple of justice, built indeed out of the former ruins of books, as materials, and some novel constitutions of his own.

In Athens, they had sexviri, as Eschines observeth, which were standing commissioners, who did watch to discern what laws waxed improper for the times, and what new law did in any branch cross a former law, and so "ex officio" propounded their repeal.

King Edgar collected the laws of this kingdom, and gave them the strength of a fagot bound, which formerly were dispersed; which was more glory to him, than his sailing about this island with a potent fleet: for that was, as the Scripture saith, "via navis in mari," "the way of a ship in the sea;" it vanished, but this lasteth. Alphonso the Wise, the ninth of that name, King of Castile, compiled the digest of the laws of Spain, entitled the "Siete Partidas ;" an excellent work, which he finished in seven years. And as Tacitus noteth well, that the Capitol, though built in the beginnings of Rome; yet was fit for the great monarchy that came after; so that building of laws sufficeth the greatness of the empire of Spain, which since hath ensued.

Lewis XI. had it in his mind, though he performed it not, to have made one constant law of France, extracted out of the civil Roman law, and the customs of provinces, which are various, and the king's edicts, which with the French are statutes. Surely he might have done well, if, like as he brought the crown, as he said himself, from Page, so he had brought his people from Lackey; not to run up and down for their laws to the civil law, and the ordinances, and the customs, and the discretions of courts, and discourses of philosophers, as they use to do.

my opinion of them without partiality either to my profession or country, for the matter and nature of them, I hold them wise, just, and moderate laws : they give to God, they give to Cæsar, they give to the subject, what appertaineth. It is true they are as mixed as our language; compounded of British, Roman, Saxon, Danish, Norman customs: and, surely, as our language is thereby so much the richer, so our laws are likewise by that mixture the more complete.

Neither doth this attribute less to them, than those that would have them to have stood out the same in all mutations. For no tree is so good first set, as by transplanting and grafting. I remember what happened to Callisthenes, that followed Alexander's court, and was grown into some displeasure with him, because he could not well brook the Persian adoration. At a supper, which with the Grecians was a great part talk, he was desired, the king being present, because he was an eloquent man, to speak of some theme, which he did; and chose for his theme, the praise of the Macedonian nation, which though it were but a filling thing to praise men to their faces, yet he performed it with such advantage of truth, and avoidance of flattery, and with such life, as was much applauded by the hearers. The king was the less pleased with it, not loving the man, and by way of discountenance said: It was easy to be a good orator in a pleasing theme. "But," saith he to him, "turn your style, and tell us now of our faults, that we may have the profit, and not you the praise only;" which he presently did with such quickness, that Alexander said, That malice made him eloquent then, as the theme had done before. I shall not fall into either of these extremes, in this subject of the laws of England; I have commended them before for the matter, but surely they ask much amendment for the form; which to reduce and perfect, I hold to be one of the greatest dowries that can be conferred upon this kingdom: which work, for the excellency, as it is worthy your majesty's act and times, so it hath some circumstance of propriety agreeable to your person. God hath blessed your majesty with posterity, and I am not of opinion that kings that are barren are fittest to supply perpetuity of generations by perpetuity of noble acts; but, contrariwise, that they that leave posterity are the more interested in the care of future times; that as well their progeny, as their people, may parti cipate of their merit.

King Henry VIII., in the twenty-seventh year of his reign, was authorized by parliament to nominate thirty-two commissioners, part ecclesiastical, and part temporal, to purge the canon law, and to make it agreeable to the law of God, and the law of the land; but it took not effect: for the acts of that, king were commonly rather proffers and fames, than either well grounded, or well pursued: but, I doubt, I err in producing so many examples. For, as Cicero said to Cæsar, so I may say to your majesty," Nil vulgare te dignum videri possit. Though, indeed, this, well under-more, no doubt, in regard of your own perfection stood, is far from vulgar: for that the laws of the most kingdoms and states have been like buildings of many pieces, and patched up from time to time according to occasions, without frame or model.

Now for the laws of England, if I shall speak

Your majesty is a great master in justice and judicature, and it were pity the fruit of that your virtue should not be transmitted to the ages to come. Your majesty also reigneth in learned times, the

in learning, and your patronage thereof. And it hath been the mishap of works of this nature, that the less learned time hath, sometimes, wrought upon the more learned, which now will not be so. As for myself, the law was my profession to

« PreviousContinue »