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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A39391 Enchiridion legum a discourse concerning the beginnings, nature, difference, progress and use of laws in general, and in particular, of the common & municipal laws of England.; Enchiridion legum. 1673 (1673) Wing E720; ESTC R22664 57,223 150

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Enchiridion Legum A DISCOURSE CONCERNING The Beginnings Nature Difference Progress and Use OF LAWS in GENERAL And in Particular OF THE Common Municipal LAWS of ENGLAND LONDON Printed by Elizabeth Flesher Iohn Streater and Henry Twyford Assigns of Richard Atkins Edw. Atkins Esquires And are to be sold by G. S. H. T. J. P. W. P. J. B. T. B. R. P. C. W. T. D. W. J. C. H. J. L. J. A. J. W. J. P. M DC LXX III. THE HEADS Of the several CHAPTERS Conteined in this TREATISE CHAP. I. THE Definition Etymologie Division Perfection and Imperfection of Laws What is required to the making of them and of their necessity pag. 1. CHAP. II. The differences betwixt the Làws of Nature of Nations the Civil and Municipal Laws pag. 16. CHAP. III. Of the grounds of the Laws of England and how they do differ from other Laws pag. 31. CHAP. IV. An answer to certain Objections usually made against the Laws of England pag. 57. CHAP. V. Of the Books written of the Laws of England whereby the Knowledge thereof is Chiefly obtained pag. 83. CHAP. VI. Of Estates allowed by the Law of England pag. 89. CHAP. VII Of Assurances Conveyances which grow out of these Estates by the Common-law pag. 95. CHAP. VIII Of Actions and of their Trials according to the Common-laws of England pag. 103. CHAP. IX Of Trials allowed by the Laws of England pag. 106. CHAP. X. Of some things in the Ministers and proceedings of our Laws conceived worthy to be reformed pag. 111. Enchiridion Legum 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 that whereunto men ought to yield obedience as in other respects so especially in this because it is an invention 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 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 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 it belongeth to and bindeth all or else because it is intended general for the profit of all Cicero defineth the 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 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 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 Therefore to conclude humane 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 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 à ligando for as much as Divines hold that men are tyed in foro conscientiae to 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 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 Law-maker and he