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 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 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 Vbi Ethicus desinit ibi incipit Jurisperitus as in Nature Vbi 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 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 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 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
called by that name imitated the ancient Druides of this Land but yet gone farther than they who following the Pythagoreans 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 Common-wealth 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 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 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 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 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 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
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 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 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 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 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 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 quà m 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
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 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 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 2d sort of Ministers towards The Abuse of Attornies the Law who do mislead the people in their Suits and sometimes make 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 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 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 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