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, john 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 Contained in this TREATISE.  
CHAP. I. THE Definition, Etymology, 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. IU. 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 Chief 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 proceed of our Laws conceived worthy to be reform. pag. 111.   

Enchiridion Legum.  

CHAP. 1. The definition, etymology, 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 Sovereign of all things, both Divine and Humane: That is, a Commander, a Guide, and a Square both of good and bad, enjoining 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 controller 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 persuade 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 showed 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 public good, determining punishment to the Transgressor's, and reward to the Obedient. Therefore to conclude; humane Laws are nothing else but the ordinances and agreement of Wise men, concluded by public 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 itself.  
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 etymology, 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 tied 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-fetched reason than the former) quoth 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 Latins 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 sense the word Law is properly applied; 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 beginning, and they do never break it. The second, which is the Sensible agents, are all living Beasts, which are guided not with so forcible a Law of necessity as the first; for they are not ordained to keep their certain and settled 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 men's 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, or the eternal Law of God, which is his wisdom, by which from Eternity he that is called Antiquus dierum, hath preordained all things before 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 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 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 Humane Law, (warranted by God's Word) the Apostle Paul likewise speaketh; Omnis anima potestatibus sublimioribus subdita a sit: So that all these Laws have their warrant from God's 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 pre-eminence, before all other in Dignity and Antiquity; 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 itself: In amplitude, because it affordeth the selfsame 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 God's 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 ancient 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 Lawgivers, whom Isidorus nameth, as Pharonius to the Grecians, Mercurius Trismegistus to the Egyptians, Solon to the Athenians, Lycurgus to the Lacedæmonians, 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 man's 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 God's 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 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 divers; no marvel then, if also the Laws of men (settled 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 herself 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, 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 entrapped) that they be not made for private profit, but for public 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 Lawmakers.  in those who are Lawmakers, amongst which the Schoolmen do chief 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 sound, (not so much the Cases of Law already made, as the Considerations of Laws to be made:) The last, which is Providence, being a foresight 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 Lawmaker 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 persuade, the Politician and Lawmaker doth enforce. The Moralist doth indeed prescribe general Rules, and Precepts what ought to be done: But doth not show 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 enjoined to be practised, by and to ourselves; but by the Politician, and Lawgiver, those general Rules are applied and accommodated to the particular Laws of each Nation, to be fashioned not only for ourselves, but for others. Therefore it is aptly said, Vbi Ethicus desinit, ibi incipit Jurisperitus; as in Nature, Vbi physicus definite, incipit medicus.  
Though these positive and politic 
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 abhor 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 itself.  
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 persuaded 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 sense, 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 Man's 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 exhibit love and duty towards our Parents, and the like. This latter part of the Law of Nature, doth answer and concur 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 ancient 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 Judgement gathered out of experience and discourse, thereby collecting what is commodious for common society, and equally behooveful 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 itself in temperancy, then wrongs offered, public 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 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 itself. 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 ways.  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, Ulpian, 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 sense, it is accepted for the particular Laws which every Kingdom and Commonwealth doth constitute for itself. And although Caius, with other learned Civilians, do confess, that the Laws which every City doth make for itself, be properly entitled Jus , quasi jus 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 Praetors 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 sense and signification, the particular Laws of each free City and State, aught 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; in this, because the Laws of Nature and of Nations are permanent and perpetual, being always 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 cross and contend one with the other, than to concur 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; until 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 fetched 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 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 Sovereign 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 Praetorian 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 Praetors, 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 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 authentics. All which is alleged to show 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 proceed of Justice, (but least of any place within this Kingdom of England) yet have all Countries their several Customs, Statutes, and particular Ordinances, discrepant 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 Praetorian 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 Praetorian Laws were those, which the Praetors did introduce to supply, to help, or to correct the Civil Law. So is there alleged 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 Praetorian Law differing from, and correcting the Civil Law.  honorarium, or the Praetorian Law, as if it were no part of the Civil Law; wherein it is said, the Praetor doth give Law, though he doth determine unjustly; having relation not unto that which the Praetor doth, but to 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 itself, did admit some other Law to be administered within the City, than that which was called and accounted their own Civil Law, or Jus . 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  commune; and the other, Jus  particular: To the first they refer 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 Germane Emperors, in their Diets or Parliaments, which are reckoned 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 Precedent 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 Dauphin; the fifth at Dijon, for Burgoigne; the sixth at Roven, for Normandy; the seventh 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 concur 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 ancient 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 vouch him: So that it is supposed the ancient 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 Trial in the Chancery of Scotland, was brought from this of England, showing 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 showed 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 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 showed anon, when it shall be demonstrated, that these Customs allowed for Law, are rather made parts, than distinguished from the Common Law. Some others suppose, that it is called 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 men's 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 sense, because they are constituted with the common consent of all. The third opinion is, that they are called the Common Laws of the Kingdom, because all the Subjects of this Kingdom must live under them, and may challenge them as their Birthright, for the defence of their Estate, Right, and Liberty. In which sense 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 kinds of our Laws of England may 
The division of our Laws of England into several parts and grounds.  be most aptly comprehended) sundry persons have made several Divisions thereof: Some have divided them into Customs, which is like to the Civilians Jus privatum, and into Statute Law; others into Common Law, Customs 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 and division of our Laws, which is the Law of God, the Law of Reason, and certain principles or maxims 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 legs) do conjoin 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 judgement 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 Customs allowed for Laws, or for lawful, may be made some part 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 maxims. So are general received opinions by Custom, continuance, and approbation of authority and Judgement, made Common Laws; whereto some add this rule, Communis error facit Legem. As for the other addition of St. Germane 
St. Germane division of the grounds of our Laws not allowed.  sextuple division of our Laws of England, although he hath therein showed 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 darkened 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 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 been 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 Conqueror, 
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 (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 divers 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 Conqueror's 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, etc. 
The first part of the Common Law of England.  So then we see that King William the Conqueror took some of the ancient 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 judgements 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 Praetorian 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 politic.  
This Law was invented to give speedy remedy and redress unto such sudden 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) he which will diligently read the ancient Stories of Malmesburie, Huntingdon, Hoveden, and Math. Parisiensis (especially above others) shall find that there are no small mistake in some things about the antiquity and true conceit 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 battle 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 Gloucester Honour, containing many privileges particular to that place. So have divers other great Lordships, Manors and some Corporations their particular Customs and special privileges, which are therefore properly called privileges, 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 styled and reckoned as part of our Laws, although in some points they do differ from the rules of the Common Law. And therefore the civilians call such Customs, jus singular, 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 Country's 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 in the course of their proceed and execution.  
For the first it is apparent that the 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 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 the Laws concerning penalties in Criminal causes, or in Civil, cannot be enacted and established without the King's Royal approbation: So doth not the King make these Laws without the consent of his Parliament.  
The Laws of England do likewise 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 Lacedæmonians had none written: The Romans had both.  
The last difference betwixt the Law of England and other Laws, but especially the Civil Law, being in the proceed 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 Judgement or Sentence, to which may be annexed also the Execution upon the same.  
For the manner of summoning, or 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 authors. 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 process sent forth, and so a plainer, more peaceable and lawful course should be taken, (as if the King who is the head and fountain of Justice or the Judge under him had been first informed of the Suit) 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 King's name in some Courts, but not so in the Civil Law.  of England do not disagree, save that in England the Writ of Summons in many Cases, and in some Courts, goeth out in the King's 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, etc.  England, than was anciently allowed by the Civil Law. For by the Civil Law, a man might not convent a Magistrate, nor Judge, nor 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; parents patroni in Jus (saith the Praetor) sine permissu meo, ne quis vocet. But by the 
None exempted from Suit by the Laws of England.  Laws of England, none are exempted from Suit; only Dukes, Earls, Barons and their Wives are privileged, 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 King's 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 betwixt these Laws in the form of Suit 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, than 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, legis actiones; id est, legitimae actiones: and immediately after saith he, Omnium harum interpretandi scientia & actiones apud Collegium pontificum erant, etc. 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  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 & lights 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 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.  plaintiff 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 plead 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 money to Titius, now I may have an Action against him for it; The remote cause 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 (showing 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 plead 
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 Man's real, personal, and mixed 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 Declaration which containeth the Writ also, the remote Cause (but in some the Writ doth contain the other) as in waist, 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, etc. 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 plead 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 joining 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 Suit be commenced in the Common Pleas) summons, attachment, distress, three capias with an exigent at the last, whereby the King hath Title for the party's contumacy to his Goods and Chattels.  
So that the plaintiff hath now remedy by accident only, and if the defendant appear and reverse the Outlary, or get pardon and so answer, etc. (which is a long time before this can be brought to pass) and by this means this Suit may depend long, yet the defendant never convented, but at two or three years' end, the plaintiff may be driven to declare anew (as if he had but then begun his Suit.) But by the Civil Law, as the Pandects show 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 judgement given in the absence of the plaintiff at the Civil Law.  or if he do not, the matter shall be discussed, and judgement given for him whose part shall be found best. But if the plaintiff appear not, than 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 plaintiff less 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 Suit, 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 showeth contumacy to the Law, yet doth it no good or very little to the plaintiff for his satisfaction.  
But there is another difference, that in Actions altogether real, as Entry, Escheat, 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 there a grand cape to take his land into the hands of the King, and the plaintiff shall have it from the King by judgement if the defendant do not come to replevy it by oath, that he was not summoned according to the Law or such like (always remembered 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 judgement given, but with us upon the default at the grand cape, the plaintiff shall have the land by judgement 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 judgement given there must be a petit cape awarded, at which Writs return if he do not save the first default, there shall be judgement given against him. That all this was ancient Law may be seen in Bractons' Treatise the defaltis. 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 lest ours is more severe.  
For the last difference spoken of betwixt 
4. The last difference is in the giving and Execution of judgement.  these Laws which is for the giving of judgement 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 ancient and present times that for Debt ever since King Edward the third his time, and damages and account 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 judgement by our Law in actions personal.  where Capias lieth in the Process before judgement, there Capias ad satisfaciendum lieth after judgement to put the party in prison for Execution; 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 Usurers, 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 Latin Law, if 
The Civil Law more mild of latter time than ours for Execution against ones person in debt, etc.  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 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 show in the Execution of judgements there are some differences even in the Civil Law itself 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 itself in different times for Execution on men's persons.  of their judgements. 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 taste for this time and purpose.   

CHAP. IU. 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 speech; even to Scholars unknown or not understood.  
2. That they are framed without Method or order.  
3. That they have no Maxims, or fundamental grounds whereon they consist, or at the least not such as are certain.  
4. That the Judge's opinion (which 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 at unheard of reason, according to his own conceits, which must be admitted for Law, at the least for the time.  
For the first Objection, I conceive it to flow rather from some sudden mislike before the matter be understood, or else some acquaint and dainty palate, who distastes all things (be the matter never so sound and substantial) which doth not savour of perfumed eloquence, and polished phrases of Rhetoric, than upon due consideration of the language itself; 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 aid in the defence hereof, than that which the Lord chief Justice Cook hath in his preface to his third Book of Reports, Siquidem relationum istarum phrasis aut stylus tibi minus arrideat, ut rei ipsius subjectae praestantia atque utilitas, & delectet & satisfaciat? Vnde 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 compliments 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 mixed Mathematics, as judicial Astrology, it will not be denied but some, nay most of their ancientest Authors (especially which wrote in Latin) do by their Barbarism in the Roman tongue, equal the worst seeming Solecisms in our Common Laws: witness hereof Haly Ben Rodan his Comment upon the quadripartite of Ptolemy in Latin, 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 in Westminster-hall for Latin, or a Case argued in a private Inn of Court moot for French, shall respectively in many phrases and good words exceed most of these authors, nay in this Art the best tongued author (namely Julius Firmious) is accounted the 
The best Author in some Arts writeth the worst phrase and stile.  worst Artist. How many Latin phrases or words are there to be found in the side of a leaf in any of the chiefest and ancientest 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 sense of the Law. So the Civilians say, tabula picturae cedit, and yet most modern languages (nay in a manner all) have been 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 styled Greek, or the more penurious yet pleasant Latin, 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 showed 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 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 likelihood it was the same language which at the first was spoken amongst the Normans; and so were all Pleas at the Bar 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 Latin 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 ancient Books, as Britton, Hengham, and the year Books of the first succeeding ages are in better French than our later Books are, because our common Lawyers now do imitate the ancients in such words, as they have there learned, and if they want a fit word in French, then do they as Sr. Thomas Moor saith of Lalus,  
Gallicis si quid nequit vocabulis,  
Conat id verbis licet non Gallicis,  
Canore saltem personare Gallico, etc.  
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, Latin, and some English; that a man might compare it to that supposition of Horace, Humano capiti, cervicem pictor equinam, etc. And our late Law French doth corrupt the ancient 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 Latin Authors in their Latin, or Chaucer's writings because in words & stile they 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 Latin.  Histories of the middle and later age on this side Christ's nativity, are written for the most part in very mean Latin. 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 Charlemagne 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 seven-nights study it will be indifferently understood. And that it should not 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 Logic and Rhetoric, than the right distinguishing of the true Methodical parts in any faculty, 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 scattered 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.  discern; for no small impediment therein would be, seeing our Laws are grounded so much upon reason, which altars 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 Tenors, and Common Law conveyances, and Estates; Stanford for the Crown pleas; Theloal for Writs; Gregory for Warranty, and few more heads; Kitchen for Courts; together 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 judgements 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 abridgements are, and where by compendious Method some strive to give life and lustre 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 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 entire 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 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 Abridgements, 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 Judgement.  
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 withal; That our Pleaders use no Method, Eloquence, or Art in their Plead. If they mean the Plead which are entered in the Rolls, had they once tried some tickle 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, 
Plead 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 intent the Pleading and Arguments at the Bar; 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 Photion objected to Demosthenes' Orations) of the Candle, most commonly, in savouring of great pains taken, with exact quotation of Books and Judgements. 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 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 Plead 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 Aristotle's 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 always 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 Judgement; as amongst the rest, these of Inheritances.  
That no land can by Inheritance lineally ascend.  
That the Heirs of the part of the Father are to be preferred before the Heirs of the part of the Mother.  
That of Inheritances descended by 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 Saint 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 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 error, be entitled 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 theorem be once infallibly demonstrated by principles; the Mathematician who made this demonstration, upon infallible tokens of truth, may not unfitly call his demonstration a Maxim, 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 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 always in a Labyrinth of uncertainty. Although my judgement 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 Judgements 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 Judge's 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 sense 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 sense as it is said, but their reasons are always conferred with former Judgements, and either thereby strengthened, or if differing from the same, they must show reason also stronger or different from the former to ground their Judgements upon. And in this sort that latter Judgements 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 Judgements.  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.  show 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 restrained according to their several Opinions and Judgements; the reason is rendered, 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 itself, and of their Judgements upon the Law, is neither strange nor unfit: for we confess that the Law is grounded upon tried 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 concur 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 Lawmaker, 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 Touchstone 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 Judgements: being those helps (which, as the Philosopher saith) Reason doth use as her handmaids, 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 applied 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 Judgements upon.  the reading and revolving of former Judgements, and of other studious labours; they come to Experience and Observation, out of which they frame conclusions for future Judgements, which must be still like Judgements in like Cases; for they may not, nor do not, so swerve from former Judgements, 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 Judgements, 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 Judgements 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 Druids of this Land (but yet gone farther than they) who, following the Pythagoreans did not commit their Learning to Writing, or rather the Lacedæmonians, who, by the institution of Lycurgus, 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 liberty to the Judges. But yet not only 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 Judgement of Magistrates and Judges, sometimes mitigated, and, according to incident diversities, interpreted, which cannot be always committed to writing: for it cannot be always 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 find a remedy and prescribe the reformation. Controversies and ambiguities are so frequent not only 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 seethe but in aenigmate and per speculum (as the Divines say of the Knowledge 
How uncertain man's knowledge 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 men's 
Nothing goeth so near to men's thoughts as their loss of estate.  inward thoughts and conceits as such do 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 chief obtained.  
THE chief Knowledge (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 Latin and did endeavour 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 authority.  
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 judgement 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 writ the particular and summary Cases that have received Determination and Sentence in the King's jucicial Courts, showing 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 Judgements, 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 annal and ancient Year-books.  latter sort of Writers called Reporters, who they were that compiled the first and most ancient 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 Reign: 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 ancient Year-books wanting.  of times, or neglect, or malice, of such in whose custody they remained: yet it should seem, that in the reign 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 reigns. 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 sixth 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 reign the Reports do discontinue until the twelfth year of King Henry the eight. And then they were recontinued until the nineteenth of Henry the eight, from thence again discontinued till the twenty sixth of Henry the eight; at which time they were held on for two years, that is, twenty sixth 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 public 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 Crook his Care and Charge. Also Mr. Brooke who did report divers memorable Cases which happened when he was making of his Abridgement in the time of King Henry the eighth, King Edward the sixth, and Queen 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 practitioner and a Judge, observed many famous Cases which were published since his death.  
A little after him began Mr. Ploden, who reported the special Cases which happened from the second of King Edw. the sixth 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 mixed partly of Rules and partly of Application of them to certain Cases of their own knowledge and collection: such is the Book called, The old Tenors; and another commonly called Littleton's Tenors. 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 civil-law. Mr. Perkins did likewise draw certain Rules and Cases of some Titles of the Common law into a method, but not of equal, or like, authority with Littleton's. It is alleged by Ploden, in his Epistle, that in ancient time, (as he had upon credit heard) there were four Reporters of our Cases 
Reporters of the Law in former times authorised 2nd allowed by the King.  of Law which were chief men, and had a yearly Stipend for their travel 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 given: So should we not have been bereft of so many worthy and unrecoverable Cases and Judgements 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 show the Estates which the Common-law doth allow. And that briefly; for neither my Judgement 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 satisfy such as are well experienced in the same. Only that which shall be said is rather set down as a general view, to consider the state and 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 assigns for ever: 
Estate of Fee-simple conditional now made an Estate in Fee-tail.  or Fee-simple conditional, that is, to him and the heirs of his body general or special, as it was at the Common-law which is accounted Fee-tail 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 another for ever, this had been held a sufficient grant to him, and to his heirs. But now the law hath so expounded 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 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 alien the whole Land and Estate.  
But afterwards this Estate in Fee-simple conditional was in the thirteenth year of King Edw. the first by a Statute made an Estate in tail in the Donee, and a Reversion in the Donor or giver. And then the Donee might not by any Act bar his issues, neither by forfeiture of offence, as Treason, nor by conveyance, though never so strong, as Fine, etc.  
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 knowledge in the Laws, and of Conveyances and Assurances amongst men have thought it meet: the like alterations we may find 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 ancient, though not always in one express form; It is true, with a several respect of times in antiquity. 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 heirs, 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 ancient time how a gift to a man and his heirs and a gift to a man for ever were all one. For when earl Godwine came to the Bishop of Canterbury to get the manor of Boseham in Sussex; he 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 Earl 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 necessity 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 pass Estates of Lands.  
There are other Estates of inferior degree and dignity allowed by the Common-law; whereof some are accounted 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 twofold.  and that twofold, either created by the party, as by Lease, etc. or else created by the Law, as Tenant by the courtesy of England, (by having issue of a wife Inheritrix;) or else an Estate in Dower limited to a wife in marriage, and this reckoned , for that it is an Estate for life.  
An Estate for years by grant of the 
Estates for years by grant.  party, 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, Trespass or Acknowledgement of Debt in the Chancery 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 ancient 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 Copy of Court-roll first reckoned Tenants at will: But now not so.  the Holder's are called Tenans at Will; but of them (although they be so termed) the first is now allowed for a more ample Estate, by use and Continuance, that is to say, Tenant by Copy of Court-roll, first called, Tenant in Vilainage. But now according to the Custom of Manors, 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, by Fine and Release, by Common-recovery, by Wills and by Uses.  
Feoffment is by Livery and Seisin, 
Feoffment.  that is, by delivery of Possession upon the Land, by taking of turf and twig (but in ancient time, as Bracton lib. 2. 
How it was executed in ancient time.  showeth, 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 Livery 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 ancient 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 
Exchange of lands.  parcel of Land is exchanged for an other of equal estate, heretofore much used but not now.  
Grants by Deeds written in paper 
Grants by Deeds with Dedi & concessi  or parchment sealed and delivered with these words, Dedi & concessi, etc. have been ancient 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 ancient: at the first it was the agreement of parties upon Arbitrement or otherwise after a Controversy 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 ancient, as some hold it, before the Conquest; but now used in the King's Court of Common pleas, and principally in some Courts of Record, to make the Assurance more forcible and certain.  
The same by a Statute made in the 
Fines strengthened by Statute.  18th year of Edw. 1. was strengthened; and by the same Statute every person of full age, of sound mind, 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 men's 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 Statute 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 engrossed, and Proclamation made, all persons after 5 years Non-claim were bound, unless they were under age, lunatic, 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 bar his issue, which before he could not, by reason the Statute of 13 Edwardi 1. provided he should not bind him by any act.  
Another Conveyance there is now 
Common-recoverie an Undoer of former Conveyances.  much in use, yet not very ancient, 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 Conceit, 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 Warranty did vouch an estranger, because the Issue or he in the Reversion by this voucher was supposed to have a recompense 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 off men's titles and possibilities without their privity 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 bar estrangers that pretend right of Possession or Action, which no other Conveyance can do.  
Conveyance of Land by Will or 
Conveyance of Land by Will, how it stood at first.  last Testament in ancient time was only in such ancient Cities and Boroughs which specially prescribed for the same, and that the Lands were devisable by Custom. 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 but Customary-lands until 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.  ancient 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 live forfeited) did convey their Lands over to their Friends in trust, but received the profits themselves: which perception or property 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 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 kinds 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 enroled within six months 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 Civil-laws and Common-laws of this Kingdom, that Actions whereupon the Trials of Suits betwixt party and party do depend, are of three sorts; either real, personal, or mixed. The 
Actions of 3 sorts.  first concerneth the Title of man's Lands and Freeholds; the second of their Goods and Chattels; 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 Assizes, 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-tail, Cui in vita, for a Woman upon the discontinuance of her Inheritance by her husband.  
And for personal Matters and 
Actions personal.  Contracts it was, as at this day: which real Actions were so used, because the party oftentimes was barred of his Entry by a descent, that if one did disseise or unlawfully dispossess another of any Land, and the Disseisor or Wrongdoer died thereof seized, the lawful Heir, or he that had the Right, might not put the other out of possession or enter for his Right, but aught 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 descent 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  upon the ground, and upon a Replevin to avow a damage Fesant, that by affirming the Cattles hath trespassed his ground, the interest thereof may thereby be tried; but the common course is to seal 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 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 Wisdom of the Lawmakers, found out two ways 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 Freeholders', or else by Battle 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 Battle) have consisted 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, etc.  of the Bishop for Bastardy and Marriage; also of Infancy, 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 Battle not abolished, nor lately used.  Battle being anciently used, and is not yet abolished by any Statute, yet by reason of the unchristian and bloody proceed thereof, (when the strongest Hand and Heart may overcome the best Right, and loss of Living is determined with loss of Life,) it is therefore obsoleted, and grown out of use. Such Trial by Battle was appointed to be in Tuttle-Field in the 13 Eliz. where the Champions, Lists, Judges, and all being prepared, the Demandant was nonsuite, 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 it was only in a Writ of right by Champions; in criminal Pleas it was in an appeal of Death by the parties.  
Battle is also termed a Trial in 
A Trial termed Battle 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 speciality 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 men's Consciences were found to be large and foul, whereby the Oath of a perjured person for his own 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 lieth.  
The most common and proper 
Trial by Jury most frequent and in force.  Trial 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 Veritatem facti upon Circumstances, or by Witnesses, or sometimes (especially for want of manifest or probable Evidence) upon their own Knowledges: And in Cases doubtful concerning points of Law the Judges are to deliver Veritatem Juris.  
If the Jury err in their Verdict, 
Attaint of a Jury erring.  an Attaint lieth 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 Suit commenced, 
Error of Judgement how reform.  the Judges do err in Judgement in any Court of Record, or that the same be supposed; A Writ of Error lieth before other Judges superiors. If in the Exchequer, it lieth in the Exchequer Chamber by the Statute of 31 E. 3 Cap. 12. If in the Common-pleas or Chancery in Latin proceed it lieth in the Kings-bench; If in the Kings-bench, heretofore it lay only in Parliament, but now by the Statute of 27 Eliz. in the Exchequer-chamber before the Justices of the Common-pleas and Barons of the Exchequer.   

CHAP. X. Of some things in the Ministers and Proceed of our Laws conceived worthy to be reform.  
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 Proceed of some corrupt persons in the handling and trial of them; and for that I have formerly made some Apology 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 proceed 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 itself 
The Author's intention.  in the withdrawing or declining of it from its natural pure and upright Course: which I shall set down by way of supposition (only as far as I can conceive) rather than of any peremptory position. And in the same sense have I spoken all the rest; always submitting the same unto deeper Judgement of them that are learned in our Laws.  
The Defects whereof I spoke before 
Defects of 2 sorts, that is in Trials & Proceed of the Law.  are of two sorts, Defects in Trials, and Defects in the Proceed of our Law. The first whereof, as I conceive, proceedeth specially from two causes, want of understanding or indifferency in Jurors who try, want of Integrity 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 Kingdom are either tried or subject to be tried; and yet in many places the Jurors (for the most part) are found to be simple, of mean capacity, and of as small substance in Estate: for either no better are impanelled, or if better be, they of best Ability and Judgement, do absent themselves; presuming that either by some excuse made for them, or by some other means, they may be dispensed withal, 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 men's 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 connivance. Care hath been taken to remedy 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 panel seldom appearing full, it is found an usual practice for the Plaintiff to request Freeholders' (his friends) to 
Freeholders' desired to stand in view that they may be returned 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 administered unto the Jurors, thus added, That they are not requested by either party or laboured by any for them. It should seem that the like Oath were needful to be given unto the Sheriff or some severe penalty appointed against the impannelling of Jurors at the nomination of the parties or their friends, whereby many men have received great hurt and prejudice. Also it 
The Sheriff and the Jury to have a more special 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 Jury,) 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 examined upon their Oath before they come to the Trial than after, when they have suddenly swallowed the Oath without public 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 challenge may be taken upon reasonable and just causes allowed by the Law, yet since this cannot be certainly known, who is laboured and dealt withal beforehand, but by the examination of a man's conscience upon a man's own Oath; I am persuaded 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 laid 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 of Fact whereunto it is principally applied; and being thus exactly executed, I will be bold to say, that it excels the Trials of all other Laws, and is one of the worthiest parts of proceed 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 Judge's sincerity.  the Trials of Suits for want of sincerity in the Judges, although there are at this time as reverend, upright, and learned Judges, as hath been at any time within this kingdom: 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 privilege of not crring, or of not affecting, liking or disliking, than either any other Judges or men of any other profession in the world are induced withal: 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 Assize, or at 
An addition to the Judge's Oath.  least once every year, should publicly 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 party, 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 show favour to any party: 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 Consciences clear, and unspotted. If the like Oath were given to the 
A means for the Judges to avoid importunity, etc.  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 Judgements, and Judges, who were not tied with so strict a Band. And therefore if this were now necessary, then were they in former times let go with too long reins of liberty 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 mind of their Duties; no more than the often calling of a Steward or other great Officer to a strict and often Account doth presuppose that his Faith is always 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 causelessly:) for what man of any charitable and reasonable consideration will conceive, but that he that is more often and strictly sworn to do his duty will be more careful 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 and learned, is held most necessary.  
For the other Objections: That it will be a disgrace to their Places, and to precedent Judges, and Judgements, that these are oftener 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 Bishopric, 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 worthy Precedent, fit to be followed and to be left unto posterities. Also it may be said, the more multiplicity of Suits that doth increase (as indeed they do daily) the more caution is to be used, and the more care to be enjoined unto the Judges in the Trial of them. Secondly, The former Judges followed the Oath which was given them, and therefore no disgrace to 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 administered; 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 over-burthening of the Subjects by delays and by diverting the right Proceed 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) prefer their own private profit before the public 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, Councillors at Law, Attorneys, Officers in Courts of Records Sheriffs and their Bailiffs, etc.  
For the first sort, which are the Councillors at Law and Barristers, as they are called, the right Proceed of the Law (in divers particular men's 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 Councillors 
Multitude of Councillors.  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 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 Councillors, sometimes their good Causes (for want of sound Counsel) are overthrown. The reason of the multitude and insufficiency of many of these Councillors 
The Insufficiency of divers Councillors at Law.  at Law (as I conceive it) is, because divers of them are admitted to the Bar 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 Readins, 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 painful students: yet, by favour they find means to be called to the Bar, many times to their own hindrance, and much to the hurt of such as have their Counsel. The second Cause of this their insufficiency is, for that they have of late been permitted to plead at Bar, and to put their hands unto Plead, 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 Plead till three years after they were called: and in those times they were kept more hardly and strictly to their Mootes and Plead in those houses wherein they continued. The Inconveniency of this general, untimely and promiscuous kind 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 Majesty did take this course with our Common Lawyers, or else assigned some others of greatest authority and Judgement in the Law to take good notice and assurance of their sufficiency before they should be admitted to practise, there would not be such a deluge of insufficient Councillors at Law within this Kingdom, by whose Ignorance and want of knowledge many men's Inheritances and Estates are overthrown.  
For their perilous advice of delays, 
The ill advice of Councillors given to their clients.  and of other evasions to procure gain unto themselves, and less unto others: it is sure that there are divers Councillors 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 Councillors against whom there should be some sharp Law made for their punishment: or if not so, yet it should seem requisite that every Councillor at the Law, should 
An Oath necessary to be given unto Councillors at Law.  (when he is called to the bar) take 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 expense of much money in Law may be saved, and honest peaceable men kept from the trouble of quarrelsome and unquiet Neighbours in Causeless Suits.  
Another abuse there is offered by 
The excessive Fees that Councillors take.  the Councillors at Law in the taking of excessive Fees, which late Custom their extreme covetousness, and the necessities of men's Estates in their Suits have introduced: For of late years (and in the memory of many men yet living) xx s. was a good Fee for a great Councillor, not only to move but to plead at the Bar; and if a Sergeant at Law had x s. for to argue a Case, he thought himself well rewarded. But now what Councillor of account and of good practice is there, that will think xl s. a sufficient recompense if he do argue any man's Case at the Bar? nay that Sergeant at Law who hath but v l. given for such a purpose, will go 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 men's 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 Councillors at Law of their Clients, some of them did restore (or at least offer to restore) part of the Fees proffered 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 alleged by some, that the sufficiency of all Councillors is not alike, 
All Lawyers not of like sufficiency or merit.  nor their pains and travel all alike, and therefore their Recompense 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 Recompense 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 suit 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 chief divers of the Councillors 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 departed before it be heard, and sometimes in the midst of the Argument being sent for unto another Bar 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 enjoined to plead at one Bar only, (according to ancient 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 Councillors as take Fees for several Courts in one day, and do break with their Clients.  
The 2d sort of Ministers towards 
The Abuse of Attorneys.  the Law, who do misled 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 Attorneys.  Multitude; for they have increased to such a huge number of later years, that they cannot choose 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 
Attorneys 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 Attorney's 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 men's 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 do it, (especially if he be required thereto:) By this good example, other Courts of Justice may be purged of their ill members, to the general good of the whole Realm.  
There is the like, though not so great an excess of Attorneys, in the 
Attorneys in the King's bench.  King's 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 Attorneys 
Attorneys 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 Master's 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 reform 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 Attorneys.  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 attorney 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 attorney were openly found in default, by Record or otherwise, he should forswear the Court, and never after be allowed to prosecute any Suit in any of the King's Courts.  
By a late Statute made 3 Jacobi nuper Regis Angliae none should be henceforth admitted Attorneys 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 Attorneys 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 the Councillors and Officers to whom the same is paid? This is an abuse worthy to be reform, 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 Attorneys in Norfolk, six in Suffolk, and two in Norwich. If then the Country were pestered with Attorneys, and that a Law must be made to ascertain the 
A Law already made necessary to be executed for the admission of Attorneys.  number (which likewise should be elected and admitted by the two chief Justices,) how much more needful 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 (than thus provided for) there are far greater numbers of Attorneys, 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 men desiring Law, with the loss 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 seldom) 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 until 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 written Tables in open Court, subject to every man's 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 foul and 
Wasteful Writing of purpose.  wasteful Writing, next for the few numbers of Lines in every Sheet, and for the smallness of the Paper wherein they writ; they always demanding so much for the sheet, how few soever of lines, letters or syllables there be in the same; and always 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 sums of money out of the Subject's purses, keep good houses, purchase much living, every themselves and impoverish many Suitors at Law. If that some reasonable stint of this Writing and the certainty of Fees withal 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 withdrawing 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 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 showed 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, rejoinder, Imparlance, with the like circumstances, whereby they are forced to ask the opinions of the ancientest and best experienced Attorneys 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 men's knowledge, with less 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) 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 publicly 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 King's 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 copy 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 Plead.  of Plead in the Courts of Records bring much damage and danger unto the Subjects of this Kingdom, wherein many men (wishing well unto our Laws) have exceedingly desired, That either some certain Forms of these Plead (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 Praetors:  
Or if this may not be performed, 
Advantages of plead 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.   
FINIS.   


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