LAW TRACTS.

THE ELEMENTS

OF

THE COMMON LAW OF ENGLAND.

CONTAINING,

FIRST,

A COLLECTION OF SOME OF THE PRINCIPAL RULES AND MAXIMS OF THE COMMON LAW, WITH THEIR LATITUDE AND EXTENT.

SECONDLY,

THE USE OF THE COMMON LAW FOR PRESERVATION OF OUR PERSONS, GOODS, AND GOOD NAMES; ACCORDING TO THE LAWS AND CUSTOMS OF THIS LAND.

TO HER SACRED MAJESTY.

I DO here most humbly present and dedicate unto your sacred Majesty a sheaf and cluster of fruit of the good and favourable season, which by the influence of your happy government we enjoy; for if it be true that "silent leges inter arma," it is also as true, that your Majesty is in a double respect the life of our laws; once, because without your authority they are but litera mortua; and again, because you are the life of our peace, without which laws are put to silence. And as the vital spirits do not only maintain and move the body, but also contend to perfect and renew it; so your sacred Majesty, who is anima legis, doth not only give unto your laws force and vigour; but also hath been careful of their amendment and reforming: wherein your Majesty's proceeding may be compared, as in that part of your government, for if your government be considered in all the parts, it is incomparable, with the former doings of the most excellent princes that ever have reigned, whose study altogether hath been always to adorn and honour times of peace with the amendment of the policy of their laws. Of this proceeding in Augustus Cæsar the testimony yet remains.

"Pace data terris, animum ad civilia vertit
Jure suum; legesque tulit justissimus auctor."

Phil. 1. c. 7.

66

Hence was collected the difference between gesta in armis and acta in toga, whereof Cicero disputeth thus: Ecquid est, quod tam propriè dici possit actum ejus, qui togatus in republica cum potestate imperioque versatus sit, quam lex? quære acta Gracchi: leges Semproniæ proferantur. Quære Syllæ Corneliæ. Quid? Cn. Pompeii tertius consulatus in quibus actis consistit? nempe in legibus. A Cæsare ipso si quæreres quidnam egisset in urbe, et in toga: leges multas se responderet, et præclaras tulisse."

:

The same desire long after did spring in the emperor Justinian, being rightly called "ultimus imperatorum Romanorum," who having peace in the heart of his empire, and making his wars prosperously in the remote places of his dominions by his lieutenants, chose it for a monument and honour of his government, to revise the Roman laws, and to reduce them from infinite volumes and much repugnancy and uncertainty, into one competent and uniform corps of law; of which matter himself doth speak gloriously, and yet aptly, calling it, "proprium et sanctissimum templum justitiæ consecratum:" a work of great excellency indeed, as may well appear, in that France, Italy, and Spain, which have long since shaken off the yoke of the Roman empire, do yet nevertheless continue to use the policy of that law: but more excellent had the work been, save that the more ignorant and obscure time undertook to correct the more learned and flourishing time. To conclude with the domestic example of one of your Majesty's royal ancestors: King Edward I. your Majesty's famous progenitor, and principal law-giver of our nation, after

he had in younger years given himself satisfaction in glory of arms, by the enterprise of the Holy Land, having inward peace, otherwise than for the invasion which himself made upon Wales and Scotland, parts far distant from the centre of the realm, he bent himself to endow his state with sundry notable and fundamental laws, upon which the government ever since hath principally rested. Of this example, and other the like, two reasons may be given; the one, because that kings, which, either by the moderation of their natures, or the maturity of their years and judgment, do temper their magnanimity with justice, do wisely consider and conceive of the exploits of ambitious wars, as actions rather great than good; and so, distasted with that course of winning honour, they convert their minds rather to do somewhat for the better uniting of human society, than for the dissolving or disturbing of the same. Another reason is, because times of peace, drawing for the most part with them abundance of wealth, and finesse of cunning, do draw also, in-farther consequence, multitudes of suits and controversies, and abuses of law by evasions and devices; which inconveniences in such times growing more general, do more instantly solicit for the amendment of laws to restrain and repress them.

Your Majesty's reign having been blest from the Highest with inward peace, and falling into an age, wherein, if science be increased, conscience is rather decayed; and if men's wits be great, their wills are more great; and wherein also laws are multiplied in number, and slackened in vigour and execution; it was not possible but that not only suits in law should multiply and increase, whereof always a great part are unjust, but also that all the indirect and sinister courses and practices to abuse law and justice should have been much attempted, and put in ure, which no doubt had bred great enormities, had they not, by the royal policy of your Majesty, by the censure and foresight of your Council-table and Starchamber, and by the gravity and integrity of your benches, been repressed and restrained: for it may be truly observed, that, as concerning frauds in contracts, bargains, and assurances, and abuses of laws by delays, covins, vexations, and corruptions in informers, jurors, ministers of justice, and the like, there have been sundry excellent statutes made in your Majesty's time, more in number, and more politic in provision, than in any of your Majesty's predecessors' times.

But I am an unworthy witness to your Majesty of a higher intention and project, both by that which was published by your chancellor in full parliament from your royal mouth, in the five and thirtieth of your happy reign; and much more by that which I have been vouchsafed to understand from your Majesty, imparting a purpose for these many years infused into your Majesty's breast, to enter into a general amendment of the state of your laws, and to reduce them to more brevity and certainty, that the great hollowness and unsafety in assurances of lands and goods may be strengthened, the snaring penalties, that lie upon many subjects, removed, the execution of many profitable laws revived, the judge better directed in his sentence, the counsellor better warranted in his counsel, the student eased in his reading, the contentious suitor, that seeketh but vexation, disarmed, and the honest suitor, that seeketh but to obtain his right, relieved; which purpose and intention, as it did strike me with great admiration when I heard it, so it might be acknowledged to be one of the most chosen works, and of the highest merit and beneficence towards the subject, that ever entered into the mind of any king; greater than we can imagine, because the imperfections and dangers of the laws are covered under the clemency and excellent temper of your Majesty's government. And though there be rare precedents of it in government, as it cometh to pass in things so excellent, there being no precedent full in view but of Justinian; yet I must say as Cicero said to Cæsar, "Nihil vulgare te dignum videri potest;" and as it is no doubt a precious seed sown in your Majesty's heart by the hand of God's divine Majesty, so, I hope, in the maturity of your Majesty's own time, it will come up and bear fruit. But to return thence whither I have been carried; observing in your Majesty, upon so notable proofs and grounds, this disposition in general of a prudent and royal regard to the amendment of your laws, and having by my private labour and travel collected many of the grounds of the common law, the better to establish and settle a certain sense of law, which doth now too much waver in incertainty, I conceived the nature of the subject, besides my particular obligation, was such, as I ought not to dedicate the same to any other than to your sacred Majesty; both because though the collection be mine, yet the laws are yours; and because it is your Majesty's reign that hath been as a goodly seasonable spring weather to the advancing of all excellent arts of peace. And so concluding with a prayer answerable to the present argument, which is, that God will continue your Majesty's reign in a happy and renowned peace, and that he will guide both your policy and arms to purchase the continuance of it with surety and honour, I most humbly crave pardon, and commend your Majesty to the divine preservation.

Your sacred Majesty's most humble and obedient subject and servant,

1596.

VOL. 1.

2 N

FRANCIS BACON.

THE PREFA CE.

I HOLD every man a debtor to his profession; from the which as men of course do seek to receive countenance and profit, so ought they of duty to endeavour themselves, by way of amends, to be a help and ornament thereunto. This is performed in some degree by the honest and liberal practice of a profession, when men shall carry a respect not to descend into any course that is corrupt and unworthy thereof, and preserve themselves free from the abuses wherewith the same profession is noted to be infected; but much more is this performed if a man be able to visit and strengthen the roots and foundation of the science itself; thereby not only gracing it in reputation and dignity, but also amplifying it in profession and substance. Having therefore from the beginning come to the study of the laws of this realm, with a mind and desire no less, if I could attain unto it, that the same laws should be the better by my industry, than that myself should be the better by the knowledge of them; I do not find that by mine own travel, without the help of authority, I can in any kind confer so profitable an addition unto that science, as by collecting the rules and grounds dispersed throughout the body of the same laws; for hereby no small light will be given in new cases, and such wherein there is no direct authority to sound into the true conceit of law, by the depth of reason, in cases wherein the authorities do square and vary, to confirm the law, and to make it received one way; and in cases wherein the law is cleared by authority, yet nevertheless, to see more profoundly into the reason of such judgments and ruled cases, and thereby to make more use of them for the decision of other cases more doubtful: so that the uncertainty of law, which is the most principal and just challenge that is made to the laws of our nation at this time, will, by this new strength laid to the foundation, somewhat the more settle and be corrected. Neither will the use hereof be only in deciding of doubts, and helping soundness of judgment, but farther in gracing of argument, in correcting of unprofitable subtlety, and reducing the same to a more sound and substantial sense of law; in reclaiming vulgar errors, and generally in the amendment in some measure of the very nature and complexion of the whole law: and therefore the conclusions of reason of this kind are worthily and aptly called by a great civilian, legum leges, for that many placita legum, that is, particular and positive learnings of laws, do easily decline from a good temper of justice, if they be not rectified and governed by such rules.

Now for the manner of setting down of them, I have in all points, to the best of my understanding and foresight, applied myself not to that which might seem most for the ostentation of mine own wit or knowledge, but to that which may yield most use and profit to the students and professors of the laws.

And therefore, whereas these rules are some of them ordinary and vulgar, that now serve but for grounds and plain songs to the more shallow and impertinent sort of arguments; others of them are gathered and extracted out of the harmony and congruity of cases, and are such as the wisest and deepest sort of lawyers have in judgment and in use, though they be not able many times to express and set them down. For the former sort, which a man that should rather write to raise a high opinion of himself, than to instruct others, would have omitted, as trite and within every man's compass; yet nevertheless I have not affected to neglect them, but having chosen out of them such as I thought good, I have reduced them to a true application, limiting and defining their bounds, that they may not be read upon at large, but restrained to point of difference: for as, both in the law and other sciences, the handling of questions by common-place, without aim or application, is the weakest; so yet nevertheless many common principles and generalities are not to be contemned, if they be well derived and deduced into particulars, and their limits and exclusions duly assigned; for there be two contrary faults and extremities in the debating and sifting out of the law, which may be best noted in two several manner of arguments. Some argue upon general grounds, and come not near the point in question: others, without laying any foundation of a ground or difference, do loosely put cases, which, though they go near the point, yet being so scattered, prove not, but rather serve to make the law appear more doubtful than to make it more plain.

Secondly, whereas some of these rules have a concurrence with the civil Roman law, and some others a diversity, and many times an opposition, such grounds which are common to our law and theirs I have not affected to disguise into other words than the civilians use, to the end they might seem invented by me, and not borrowed or translated from them: no, but I took hold of it as a matter of great authority and majesty, to use and consider the concordance between the laws penned, and as it were dictated verbatim, by the same reason. On the other side, the diversities between the civil Roman rules of law and ours, happening either when there is such an indifferency of reason so equally balanced, as the one law embraceth one course, and the other the contrary, and both just, after either is once positive and certain; or where the laws vary in regard of accommodating the law to the different considerations of estate, I have not omitted to set down with the reasons.

Thirdly, whereas I could have digested these rules into a certain method or order, which, I know, would have been more admired, as that which would have made every particular rule, through his coherence and relation unto other rules, seem more cunning and more deep; yet I have avoided so to do, because this delivering of knowledge in distinct and disjoined aphorisms doth leave the wit of man more free to turn and to toss, and to make use of that which is so delivered to more several purposes and applications; for we see that all the ancient wisdom and science was wont to be delivered in that form, as may be seen by the parables of Solomon, and by the aphorisms of Hippocrates, and the moral verses of Theognis and Phocylides; but chiefly the precedent of the civil law, which hath taken the same course with their rules, did confirm me in my opinion.

Fourthly, whereas I know very well it would have been more plausible and more current, if the rules, with the expositions of them, had been set down either in Latin or English; that the harshness of the language might not have disgraced the matter; and that civilians, statesmen, scholars, and other sensible men, might not have been barred from them; yet I have forsaken that grace and ornament of them, and only taken this course: the rules themselves I have put in Latin, not purified farther than the propriety of terms of law would permit; which language I chose, as the briefest to contrive the rules compendiously, the aptest for memory, and of the greatest authority and majesty to be avouched and alleged in argument: and for the expositions and distinctions, I have retained the particular language of our law, because it should not be singular among the books of the same science, and because it is most familiar to the students and professors thereof, and besides that it is most significant to express conceits of law; and to conclude, it is a language wherein a man shall not be enticed to hunt after words but matter; and for excluding any other than professed lawyers, it were better manners to exclude them by the strangeness of the language, than by the obscurity of the conceit: which is such as though it had been written in no private and retired language, yet by those that are not lawyers would for the most part have been either not understood, or, which is worse, mistaken.

Fifthly, whereas I might have made more flourish and ostentation of reading, to have vouched the authorities, and sometimes to have enforced or noted upon them, yet I have abstained from that also; and the reason is, because I judged it a matter undue and preposterous to prove rules and maxims; wherein I had the example of Mr. Littleton and Mr. Fitzherbert, whose writings are the institutions of the laws of England: whereof the one forbeareth to vouch any authority altogether; the other never reciteth a book, but when he thinketh the case so weak in credit of itself as it needeth a surety; and these two I did far more esteem than Mr. Perkins or Mr. Standford, that have done the contrary. Well will it appear to those that are learned in the laws, that many of the cases are judged cases, either within the books, or of fresh report, and most of them fortified by judged cases and similitude of reason; though in some cases I did intend expressly to weigh down authorities by evidence of reason, and therein rather to correct the law, than either to soothe a received error, or by unprofitable subtlety, which corrupteth the sense of the law, to reconcile contrarieties. For these reasons I resolved not to derogate from the authority of the rules, by vouching of the authorities of the cases, though in mine own copy I had them quoted: for although the meanness of mine own person may now at first extenuate the authority of this collection, and that every man is adventurous to control; yet surely, according to Gamaliel's reason, if it be of weight, time will settle and authorize it; if it be light and weak, time will reprove it. So that, to conclude, you have here a work without any glory of affected novelty, or of method, or of language, or of quotations and authorities, dedicated only to use, and submitted only to the censure of the learned, and chiefly of time.

Lastly, there is one point above all the rest I account the most material for making these reasons indeed profitable and instructing; which is, that they be not set down alone, like short dark oracles, which every man will be content to allow still to be true, but in the mean time they give little light and direction; but I have attended them, a matter not practised, no not in the civil law to any purpose: and for want whereof, the rules indeed are but as proverbs, and many times plain fallacies, with a clear and perspicuous exposition, breaking them into cases, and opening their sense and use, and limiting them with distinction, and sometimes showing the reasons whereupon they depend, and the affinity they have with other rules. And though I have thus, with as much discretion and foresight as I could, ordered this work, and as I may say, without all colours or shows, husbanded it best to profit; yet nevertheless not wholly trusting to mine own judgment: having collected three hundred of them, I thought good, before I brought them all into form, to publish some few, that by the taste of other men's opinions in this first, I might receive either approbation in mine own course, or better advise for the altering of the other which remain: for it is great reason that that which is intended to the profit of others, should be guided by the conceits of others.

THE MAXIMS OF THE LAW.

REGULA I.

In jure non remota causa sed proxima spectatur. Ir were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate and judgeth of acts by that, without looking to any farther degree.

cause,

6 H. 8. Dy. fo.

1. et 2.

infeoff over, and the feoffee be disseised, and a descent cast, and then the feoffee bind himself in a statute, which statute is discharged before the recovery of the land: this is no breach of the condition, because the land was never liable to the statute, and the possibility that it should be liable upon recovery the law doth not respect.

So if I enfeoff two, upon condition to enfeoff, and one of them take a wife, the condition is not broken; and yet there is a remote possibility that the jointtenant may die, and then the feme is entitled to dower.

So if a man purchase land in fee-simple, and die without issue; in the first degree the law respecteth dignity of sex, and not proximity; and therefore the remote heir on the part of the father shall have

As if an annuity be granted "pro consilio impenso et impendendo," and the grantee commit treason, whereby he is imprisoned, so that the grantor cannot have access unto him for his counsel; yet nevertheless the annuity is not determined by this non-feasance; yet it was the grantee's act and default to commit the treason, whereby the imprisonment grew: but the law look-it, before the near heir on the part of the mother: eth not so far, and excuseth him, because the not giving counsel was compulsory, and not voluntary, in regard of the imprisonment.

Litt. cap. Dis

26 H. 8. 2.

but in any degree paramount the first the law respecteth it not, and therefore the near heir by the grandmother on the part of the father shall have it, before the remote heir of the grandfather on the part of the father.

So if a parson make a lease, and be Cont. 2 H. 4.5. deprived, or resign, the successors shall avoid the lease; and yet the cause of This rule faileth in covinous acts, which though deprivation, and more strongly of a resignation, they be conveyed through many degrees and reaches, moved from the party himself: but the law regard-yet the law taketh heed to the corrupt beginning, eth not that, because the admission of the new in- and counteth all as one entire act. cumbent is the act of the ordinary.

So if I covenant with I. S. a stranger, in consideration of natural love to my son, to stand seised to the use of the said I. S. to the intent he shall infeoff my son; by this no use will rise to I. S. because the law doth respect that there is no immediate consideration between me and I. S. So if I be bound to enter into a 12 H. 44. H. 8. Dy. f. 1. statute before the mayor of the staple at such a day, for the security of a hundred pounds, and the obligee, before the day, accept of me a lease of a house in satisfaction; this is no plea in debt upon my obligation: and yet the end of this statute was but security for money; but because the entering into this statute itself, which is the mediate act whereto I am bound, is a corporal act which lieth not in satisfaction, therefore the law taketh no consideration that the remote intent was for money.

So if I make a feoffment* in fee, 37 R. Chest. upon condition that the feoffee shall

M. 40 et 41. El. Julius Winnington's case, ore report per le très reverend Judge, le Sur Coke, lib. 2.

37 R. Dacre's case, obiter.

As if a feoffment be made of lands held in knight's service to I. S. upon condition that he within a certain time shall enfeoff I. D. which feoffment to I. D. shall be to the wife of the first feoffer for her jointure, &c. this feoffment is within the statute of 32 H. VIII. nam dolus circuitu non purgatur."

Op. Cattelyn et autres in

case de Stoel.

In like manner this rule holdeth not in criminal acts, except they have a full interruption; because when the intention is matter of substance, and that which the law doth principally behold, there the first motive must be principally regarded, and not the last impulsion. As if I. S. of malice prepense discharge a pistol at 1. D. and miss him, whereupon he throws down his pistol and flies, and I. D. pursueth him to kill him, whereupon he turneth and killeth I. D. with a dagger; if the law should consider the last impulsive cause, it should say that this was in his own defence; but the law is otherwise, for it is but a pursuance and execution of the first murderous intent. But if I. S. had fallen down, his dagger drawn, and I. D. had fallen by haste upon his dagger, there I. D. had been felo de se, and I. S. shall go quit.

44 Ed. 3.