THE IDEA OF THE LAW.
1. WHen GOD had made the Heavens and the Earth; the Mundus vitae, the World of Life, and Formes or〈…〉〈 in non-Latin alphabet 〉; And thus compleated his work in the Senary; comprehending the whole Creation in Six Orders of things: He ceaſed from ever creating any thing more, either in the outward Material World, or in the World of2 Life. But his Creative power retyring into himſelf, he enjoyed his own eternal Reſt, which is his immutable and indefatigable Nature, that with eaſe overſees all the whole Compaſs of Beings; and continues Eſſence, Life, and Activity to them; and the better rectifies the worſe; and all are better rectifies the worſe; and all are guided by his eternal Word and Spirit: but nothing New hath ever been Created ſince the Six Dayes Production, nor ſhall ever be hereafter.
2. Then man fell, after all was perfect, into diſobedience, by his Feminine Faculties, and the Pride of the Serpent. And being in this ſinfull Eſtate, his Firſt-born Cain killed his brother Abel, and therefore had the mark〈…〉〈 in non-Latin alphabet 〉Thau ſet in his Forehead: it was done by God, and according to his Promiſe inſtead of Death: he was enabled to walk and live ſecurely among the wildeſt of Tereſtrial Creatures:〈…〉〈 in non-Latin alphabet 〉
3〈…〉〈 in non-Latin alphabet 〉(i. e.) A ſword could not enter him, fire could not burn him, water could not drown him, the air could not blaſt him, nor any thunder or lightning could ſtrike him, &c.
3. And afterwards, Lawes were given to men to be executed, One not to oppreſs another, but to fear God, do his Statutes, and keep his Judgments.
4. And thus God forgave Cain, and ſaved his life: which I cannot account a downright Puniſhment, but indulged by the mercy of God, and neceſſary to the multiplication of Mankinde, &c. So Lawes were eſtabliſhed amongſt men before Moſes.
5. And I look upon Moſes mainly in reference to the publick Inducement,4 in which, after this a few generations, he appeared admirable, viz. As a Politician or Lawgiver. In which his skill was ſo great, that even in the Judgment of Heathen Writers he had the preheminence above all the reſt: the Roſie-Crucians place him in the head of their Infallible Axiomata: of the moſt Famous Law-givers under the name of〈…〉〈 in non-Latin alphabet 〉, if Eugenius Theodidactus be not miſtaken: or, if he be, at leaſt he bears them company that are reputed the beſt, reſerv'd for the laſt, and moſt notable Inſtance of thoſe that entituled their Lawes Divine, and made themſelves ſpokemen betwixt God and the people: This Mneues is ſaid to receive his Lawes from Mercury, as Minos from Jupiter, Licurgus from Apollo, St. Chryſtopher Heydon from his〈…〉〈 in non-Latin alphabet 〉, his good Genius, As Moſes from Jao, that is Jehovah;〈…〉〈 in non-Latin alphabet 〉, But they ſpeak like meer Hyſtorians in the buſineſs that ſay5 ſo,〈…〉〈 in non-Latin alphabet 〉is the word which they boldly abuſe, to the diminution of all their Authorities promiſcuouſly: It is ſaid, they feigned they received Lawes from theſe Deities: And Ariſtotle adds the reaſon of it too; but like an errant Stateſman, or an incredulous Philoſopher,〈…〉〈 in non-Latin alphabet 〉; (i. e.) Whether it be (ſaies he) that they judged it an admirable and plainly Divine Project that redounded unto the Profit of a multitude, or whether they conceived, that hereby the people looking upon the greatneſs, and Supereminence of their Law-givers, would be more obedient to their Lawes Pretorian or Cenſorian: That ſaying in the Schools is not ſo trivial as true, Quicquid recipitur, recipitur admodum recipientis; Every thing is as it is taken, or at leaſt6 appears to be ſo: The tincture of our own natures ſtains the appearance of all objects.
6. But to leave Aristotle to his Ethniciſm and incredulity: As for us that ought to believe Scripture, and obey the Lawes of our Land, eſtabliſhed in the Goſpel of Jeſus Christ, being a Preſident for all Lawes and Statutes.
7. And firſt, if we will not gainſay the authority of the Greek Text, we ſhall not only be fully perſwaded of Moſes his receiving of Laws from Gods own mouth, but have ſome hints to believe, that ſomething Analogical to it may have come to paſs in other Lawgivers,〈…〉〈 in non-Latin alphabet 〉&c. Deut. 32. When the moſt High divided the Nations, when he ſeparated the Sonnes of Adam, he ſet the bounds of the Nations according to the number of the Angels of God, but7 Jacob was the portion of Jehovah, that is, Jao, &c. So that it is not improbable, but that as the great Angel of the Covenant, he whom I in my Book named The Wiſemans Crown: and in another entituled, A new Method of Roſie Crucian Phyſick call〈…〉〈 in non-Latin alphabet 〉, (i. e.) The eldeſt of Angels, the Archangel, the Word, the Beginning, the name of God, which is Jehovah: I ſay, that as he gave Lawes to his charge, ſo the titular Angels of other Nations might be Inſtructors of thoſe that they raiſed up to be Lawgivers to their charge: Though in proceſs of time, the Nations that were at firſt under the Government of good Angels, by their lewdneſs and diſobedience might make themſelves obnoxious to the power and deluſion of〈…〉〈 in non-Latin alphabet 〉tyrannical devile: But this is but a digreſſion, that which I would briefly have intimated is, how Lawes were received, and how Politickly8 they are now uſed; And that the great Lawgiver of the Jews was a man inſtructed of God himſelf, to Prudence and true Policy.
8. And therefore I make account, if we will but with diligence ſearch, we may ſurely finde the Footſteps of unſophiſticate Policy in all the Paſſages of the whole Pentateuch: And here in the very entrance it will offer it ſelf unto our view, where Moſes ſhews himſelf ſuch as that noble ſpirit Plato deſires all Governers of Commonwealths ſhould be, who has, in his Epiſtle to Dion, and his friends, foretold, That mankinde will never ceaſe to be miſerable, till ſuch time as either true and Right Philoſophers rule in the Common-wealth; or thoſe that do rule apply themſelves to true and ſound Philoſophy: And what is Moſes his Bereſhith, but a fair invitation thereto? it comprehendeth at leaſt the whole Fabrick of Nature, and conſpicuous9 Furniture of the viſible world: As if he dare appeal unto the whole Aſſembly of Gods Creation, to the voice of the great Univerſe, if what he propounds to his people, over whom God hath ſet him, be not righteous and true; And that by acting according to his Precepts, they would but approve themſelves Coſmopolitas, True Citizens of the world, and Loyal Servants of God, and Secretaries of nature. It is Mr. Thomas Heydon his Interpretation upon the place; which, how true it is in Moſes vailed, I will not here diſpute: That it is moſt true in Moſes unvailed, Chriſt our Lord is true, without all Diſpute and Controverſie; And whoſoever follows him, followes a Law juſtified by God, and the whole Creature, they ſpeaking in ſeveral Dialects the minde of their Maker. It is a truth and life that is the ſafety of all Nations, and the earneſt expectation of the ends of the earth; Chriſt, the ſame yeſterday, to day, and for ever,10 whoſe Dominion and Law neither time nor place doth exclude; as you ſhall finde anon: But to return to Moſes.
9. The Lawes and Ordinances which he gave to the Iſraelites, were given by him〈…〉〈 in non-Latin alphabet 〉, (i. e. ) as Statutes received from God; And therefore, the great Argument and Incitement to Obedience ſhould lie in this firſt, and higheſt Lawgiver, God himſelf, the great Jehovah; whoſe wiſdome, power, and goodneſs could not better be ſet out, then by aſcribing the Creation of the whole viſible World unto him: So that, for his power he might be feared, admired for his prudence, and finally for his goodneſs be loved, adored, and Deified: That, as he was truly in himſelf the moſt High God, ſo he ſhould be acknowledged of the people to be ſo.
10. For, certainly there is nothing11 that doth ſo win away, nay raviſh, or carry captive the mindes of poor Mankinde, as Bounty and Munificence, all men loving themſelves moſt affectionately, and moſt of all, the meaneſt and baſeſt ſpirits, whoſe ſoules are ſo far from being a little rais'd and releas'd from themſelves, that they do impotently and impetuouſly cleave and cling to their dear carkaſes; hence have they, out of the ſtrong reliſh and favour of the pleaſures and conveniences thereof, made no ſcruple of honouring them for Gods, who have by their Induſtry, or by good Planets produced any thing that might conduce for the improvement of the happineſs and comefort of the body; And thus Moſes received his Lawes from God; Joſuah from Moſes, &c.
11. Now Chriſt teacheth us other Lawes: as for example, when the Phariſees came to him, and asked, Is it lawfull for a man to put away12 his Wife? tempting him.
And he anſwered and ſaid unto them, What did Moſes command you?
12. And they ſaid, Moſes ſuffer'd to write a Bill of Divorcement, and and to put her away.
13. And Jeſus anſwered and ſaid unto them, For the hardneſs of your hearts Moſes wrote this Precept;
14. But, From the begining of the Creation God made them male and female.
15. For this cauſe ſhall a man leave his Father and his Mother, and ſhall cleave unto his wife.
16. And they twain ſhall be one fleſh.
17. What therefore God hath joyned together let no man put aſunder, Mark 10.
1318. Wherefore dare any of you, having a Matter againſt another, go to Law before the unjuſt, and not before the Saints?
19. Do ye not know, that the Saints ſhall judg the World? And if the Saints ſhall be judged by you, are ye unworthy to judg the ſmalleſt matters?
20. Know ye not, that we ſhall judg Angels? How much more things that partain to this life?
Brother goeth to Law with brother; and that before the Unbelievers.
21. Now therefore there is utterly, a fault among you, becauſe ye go to Law one with another,: Why do ye not rather take wrong? Why do not you rather ſuffer your ſelves to be defrauded?
22. Nay you do wrong, and14 defraud, and that your brethren?
But I ſay unto you, Love your enemies, bleſs them that curſe you, do good to them that hate you, and pray for them that deſpitefully uſe you, and perſecute you, Mat. 5.
23. Wherefore then ſerveth the Law? It was given becauſe of Tranſgreſſions, till the ſeed ſhould come, to whome the Promiſe was made, and it was ordained by Angels in the hand of a Mediator.
24. Wherefore the Law was our School-Maſter to bring us unto Chriſt, that we might be juſtified by Faith, Gal. 3.
25. Now let every Soul be ſubject unto the Higher Powers, for there is no power but of God; the powers that be are ordained of God.
26. Whoſoever therefore reſiſteth15 the Power, reſiſteth the Ordinance of God; And they that reſiſt receive to themſelves Damnation.
27. For rulers are not a terrour to good works, but to the evil: Will ye then be afraid of the Power? Do that which is good, and you ſhall have praiſe of the ſame.
28. For they are the Miniſters of God to you, for good; But if you do that which is evil, be afraid: for they bear not the ſword in vain, for they are the Miniſters of God, and Revengers, to execute wrath upon him that doth evil.
29. Wherefore ye muſt needs be Subjects, not only for wrath, but alſo for conſcience ſake.
30. For this cauſe pay you Tribute alſo: For they are Gods Miniſters, attending continually upon this very thing.
1631. Render therefore to all their Dues, Tribute to whom Tribute is due, Cuſtome to whom Cuſtome is due; Fear to whom fear; Honor to whom honor.
32. Owe no man any thing, but to love one another: For they that love one another, have fulfilled the Law.
33. For this, Thou ſhalt not commit Adultery; thou ſhalt not Kill; thou ſhalt not Steal; thou ſhalt not bear Falſe-witneſs; thou ſhalt not Covet: and if there be any other Commandment, it is briefly comprehended in this ſaying; namely, thou ſhalt love thy neighbour as thy ſelf.
34. Love worketh no ill to his Neighbour; therefore, Love is the fulfilling of the Law,
35. Rom. 13. And all other Lawes17 depend upon theſe: The Politick part of all Law is this following, which ought, as I have preſcribed, to be practiſed according to the Baſis of Moſes and the Prophets, and Chriſt and his Diſciples. The Method adviſes you how to rectifie the Errors of all Courts after this order in the Paragraphs, grounded, as you heard before, in the Old and new Teſtament. And theſe Rules you muſt obſerve.
36. In all Civill Society either Law or Power prevails; for there is a Power which pretends Law, and ſome Lawes taſte rather of might than right, Wherefore there is a threefold Source of injuſtice: Cunning Illaqueation, under color of Law, and the harſhneſs of Law it ſelf.
37. The Force and Efficacy of private Right is this; He that doth a wrong by the Fact, receives Profit or Pleaſure, by the Example, incurrs10 Prejudice and Peril: others are not Partners with him in his Profit or Pleaſure; but take themſelves intereſſed in the Example, and therefore eaſily combine and accord together to ſecure themſelves by Lawes, leſt Injuries by turns ſeize upon every Particular: But, if through the corrupt Humor of the Times, and the generalty of guilt, it fall out, that to the greater number, and the more potent, Danger is rather created than avoided, by ſuch a Law: Faction diſanulls the Law, which often comes to paſs.
38. Private Right is under the Protection of Publick Law: For Lawes are for the People, Magiſtrates for Lawes. The Authority of Magiſtrates depends upon the Majeſty of Kings, and the forme of Policy, upon Lawes Fundamental: Wherefore if this Government be good, ſound, and healthfull, Lawes will be to good11 purpoſe: If otherwiſe, there will be little ſecurity in them.
Yet notwithſtanding, the end of Publique Law is not only to be a guardian to private right, leſt that ſhould any way be violated, or to repreſs Injuries, but it is extended alſo, unto Religion, and Armes, and Diſcipline, and Ornaments, and Wealth. Finally, to all things which any way conduce unto the proſperous eſtate of a Commonwealth.
39. For the end and aim at which Lawes ſhould level, and whereto they ſhould direct their Decrees and Sanctions, is no other than this, That the people may live happily: This will be brought to paſs, if they be rightly train'd up in Piety, and Religion, if they be honeſt for moral converſation, ſecur'd by Armes againſt Forraign Enemies, munited by Lawes againſt Seditions and private wrongs: Obedient to Government and Magiſtrates: Rich20 and flouriſhing in Forces and wealth: But the Inſtruments and Sinnes of all bleſſings are Lawes.
40. And to this end, the Lawes we receiv'd ſucceſſively, by Moſes, were firſt from God, and then from him by Joſuah, and from Joſhua by the 70 Elders, &c. But the beſt Lawes we received from Chriſt, the Apoſtles delivered them to the Biſhops, &c. And the end they attain, you read before: But many Lawes miſs this mark: For there is great difference and a wilde diſtance in the comparative value and virtue of Lawes: For ſome Lawes are excellent, ſome of a middle temper, others altogether corrupt. I will exhibite, according to the meaſure of my Judgment ſome certain Lawes (as it were) of Lawes, whereby Information may be taken, what in all Lawes is well or ill received by Maſſora, and eſtabliſhed, or by Tradition tinctur'd with the virtue or vice of the Judges, and their Brethren.
2141. But before I deſcend to the Body of Lawes in particular, I will briefly write the Merit and Excellency of Lawes in general: A Law may be held good, that is certain in the Intimation, juſt in the Precept, profitable in the Execution, Agreeing with the Form of Government, in the preſent State, and begetting virtue in thoſe that live under them.
42. Certainty is ſo Eſſential to a Law, as, without it a Law cannot be juſt, Si enim incertam vocem det Tuba, quis ſe parabit ad Bellum: So, if the Law give an uncertain ſound, who ſhall prepare himſelf to obey: A law muſt give warning before it ſtrike: And you do not read, that Cain killed any after God had marked him: and it is a good Preſident, That is the beſt Law which gives leaſt Liberty to the Arbitrage of the Judg (and that is the reaſon of Moſes his ſtrict charge to the14 people, that they ſhould not come nigh the Mountain) which is that the certainty thereof effecteth.
43. Incertainty of Lawes is of two ſorts, One, where no Law is preſcribed: The other, when a Law is difficile and Dark: I muſt therefore firſt ſpeak of Cauſes omitted in the Law, that in theſe likewiſe there may be found ſome Preſident of certainty.
44. The narrow compaſs of man's wiſdome cannot comprehend all Caſes which time hath found out: and therefore New Caſes do often preſent themſelves. In theſe Caſes there is applyed a threefold Remedy or Supplement, either by a Proceeding upon like Caſes, or by the uſe of Examples, though they be not grown up into Law, or by Juriſdictions, which award, according to the Arbitrement of ſome Good Man, Moſes or Chriſt;15 as you may read in the Old and New Teſtament, how Controverſies were decided, according to ſound Judgment, whether in Courts Pretorian, or of Equity, or Courts Cenſorian, or of Penalty.
45. In new Caſes your Rule of Law is to be deduced from Caſes of like nature, but with Caution and Judgment, touching which theſe Rules following are to be obſerved: Let Reaſon be fruitfull, and Cuſtome be barren, and not breed new Caſes; Wherefore, whatſoever is accepted againſt the ſence and Reaſon of a Law: or elſe, where the Reaſon thereof is not apparent, the ſame muſt not be drawn into Conſequence.
46. A ſingular publick Good doth neceſſarily introduce Caſes pretermitted; Wherefore, when a Law doth notably and extraordinarily reſpect,24 and procure the Profit and Advantage of a State. Let their Interpretation be ample and extenſive. It is a hard caſe to torture Laws, that they may torture men: I would not therefore that Lawes penal, much leſs capital, ſhould be extended to new Offences: Yet, if it be an old Crime, and known to the Lawes, but the Proſecution thereof falls upon a new Caſe, not foreſeen by the Lawes, You muſt, by all means depart from the Placits of Law, rather than that offences paſs unpuniſh'd.
47. In thoſe Statutes which the Common Law (eſpecially concerning Caſes frequently incident, and are of long continuance) doth abſolutely repeal, I like not the Proceeding by Similitude unto New Caſes: For, when a State hath for a long time wanted a whole Law, and that, in caſes expreſs'd, there is no great danger, if the Caſes omitted expect a Remedy by a New Statute.
2548. Such Conſtitutions as were manifeſtly the Lawes of time, and ſprung up from emergent Occaſions then prevailing in the Kingdome: I think now it is called ſo by Carolus Magnus ſecundus, The State oft times now changed, they are reverenc'd enough, if they may conſerve their Authority within the limits of their own proper Caſes: And it were monſtrouſly prepoſterous any way to extend and apply them to Caſes omited, as in Olivers time.
49. There can be no Sequel of a Sequele: but the extention muſt be arreſted within the Limits of immediate Caſes, otherwiſe you fall by degrees upon unreſembling Caſes, and the Subtilty of wit will be of more force than the Authority of Law.
50. In Lawes and Statutes of a compendious Stile, extention may be18 made more freely: But in thoſe Lawes which are punctual in the Enumeration of Caſes particular, more warily; For, as exception ſtrengthens the force of a Law, in caſes not excepted, ſo enumeration weakens it, in caſes not enumerated.
51. An explanatory Statute damms up the ſtreams of a former Statute; neither is the Extention received afterward, in the one or the other: For there is no Superextention can be made by a Judg, where once an extention hath begun to be made by a Law.
52. The Forme of words and Acts of Court doth not admit an Extention upon like Caſes; for that looſeth the nature of Formality, which departs from Cuſtome to Arbitriment; And the Introduction of Olivers Tyranical new Heavy Caſes imbaſeth the Majeſty, and cloggs the purity of the late Sacred King Charles his Statutes.
1953. Extention of Law is aptly applyed unto caſes Poſt nate, which were not exiſtent in Nature, when the Law was enacted: For, where the Caſe could not be expreſt, becauſe there were not ſuch extant, a Caſe omitted is accepted for a Caſe expreſt, if the reaſon be the ſame: So for extention of Lawes in Caſes amiſs, let this my Direction ſuffice: Now I ſhall ſpeak of the uſe of Examples.
53. It follows now I ſpeak of Examples from which Right is inferr'd, where Law is imperfect: As for Cuſtome, which is a kinde of Law; and for Preſidents, which by frequent Practice are grown into Cuſtome, as into a Tacite Law, I will ſpeak in due place: But now I ſpeak of Examples or Preſidents which rarely and ſparſedly fall out, and are not yet grown up to the ſtrength of a Law, namely, when, and with what caution a Rule of28 Law is to be derived from them where Law is imperfect.
54. Your Preſidents muſt be derived from Queen Elizabeth, King James, King Charles, and his happy Son, being good and moderate: and not from the bloudy Factions, or diſſolute Times of the Tyrant Oliver Cromwell, and his Sons; For Examples fetched from ſuch times are a Baſtard Iſſue, and do rather corrupt than inſtruct.
55. In his late Sacred Majeſties time, the Examples are to be reputed the beſt, and moſt ſafe; for thoſe were but lately done, and no inconveniences enſued: Now, Why may it not be done again? Yet nevertheleſs recent Examples are of leſs Authority, and if perchance it ſo fall out, that a Reformation, Modern Preſidents taſte more of their own times, than of right Reaſon.
2956. But thoſe Preſidents betwixt Chriſt his Apoſtles, and the late King Charles muſt be received with caution, and choice. For, ſince our Saviour Chriſt two hundred years, the revolution of an Age altered many things; ſo as, what might ſeeme ancient for time, the ſame, through perturbation and Inconformity, to the preſent Age, may be altogether new: Wherefore leaving Moſes, Joſhua, and the Elders, and the ſucceeding Prophets to the Lawes and Statutes of their times, and following the Examples of Chriſt, his Apoſtles, Biſhops, and the Judges of a middle time are beſt; or of ſuch an Age as beſt ſorts with the preſent times, which now and than the time farther off better repreſents, than the time cloſe at hand.
57. Keep your ſelves within, or rather on this ſide the limits of an Example, and by no means ſurpaſs22 thoſe bounds: For, where there is no Rule of Law, all ought to be entertain'd with Jealouſie: Wherefore here, as in obſcure caſes, follow that which is leaſt doubtfull.
58. Beware of Fragments, and Compounds of Examples: and view the example entire, and every particular p•ſſage thereof: For, if it be inequall and unreaſonable before a perfect Comprehenſion of the whole Law, to make a Judgment upon a part, or Paragraph thereof: much more ſhould this Rule hold in Examples, which, unleſs they be very ſquare and proper, are of doubtfull uſe and application.
59. In Examples, it imports very much through what hands they have paſt, and have been tranſacted: For if they have gone currant with Clarks only, and Miniſters of Juſtice, from the courſe of ſome Courts, without23 any notice taken thereof by Superiour Counſellors, or with the Maſter of Errours, by the people they are to be rejected, and little to be eſteemed of: but, if they have been ſuch preciſe Preſidents or Counſellors of Eſtate, Judges, to Principal Courts, as that it muſt needs be, that they have been ſtrengthened by the•acite approbation, at leaſt of Judges; they carry the more reverence with them.
60. Preſidents that have been publiſh'd, however leſs practiſed, which being debated, and ventilitated by Diſcourſes and diſ•ptations have yet ſtood out unargued, are of greater Authority: but ſuch as have remained buried, as it were, in Cloſets and Archives are of leſs: For Examples like Waters are moſt wholeſome in the running ſtream.
61. Examples that refer to Lawes I would not have them drawn from32 Writers of Hiſtory, but from publique Acts, and more diligent Traditions: The Hebrew word is,〈…〉〈 in non-Latin alphabet 〉Kibbel, and it is an Infelicity familiar, even with the beſt Hyſtorians, that they paſs over Lawes, and Judicial Proceedings too ſlightly: and, if perhaps they have uſed ſome Diligence therein, yet they vary much from the authentick Conſtitutions.
62. An Example which a contemporary Age, or a time neareſt unto it hath repealed, ſhould not eaſily be taken up again, though the like Caſe ſhould afterwards enſue: nor makes it ſo much for an Example, that upon Experience they have now relinquiſh'd it.
63. Examples are admitted into Councils, but do in like manner preſcribe or command: Therefore I adviſe you to let them bee ſo moderated, that the Authority of the time33 paſt, may be bowed and plied to the practice of the time preſent; and thus much concerning Advice, and Direction, from Preſidents; where Law is imperfect: it followes next, that I ſpeak of Courts Pretorian and Ceuforian: Courts of equity, and of penalty, as I practiſed of Cliffords Inn, where I was ſometime a Clerk.
64. I adviſe you let there be Courts and Juriſdictions, which may define according to the Arbitrement of ſome good man, and according to ſound Judgment for the Law, (as is obſerv'd before) cannot provide for all caſes, but is fitted to ſuch occurrences as commonly fall out; and time (as was ſaid by the Ancients) is a moſt wiſe thing, and daily the Author and Inventor of new caſes.
65. New caſes fall out both in matters Criminal, which have need of penalty, and in matters Civil, which34 have need of reliefe, the Courts which reſpect the former, I call Cenſorian: which reſpect the latter Praetorian.
66. I adviſe you to let the Cenſorian Courts of Juſtice have Juridiction and Power not only of puniſhing new offences, but alſo of increaſing penalties aſſigned by the Laws for old crimes, if the be caſes heinous, & enormous; ſo they be not Capital, for a notorious guilt, is as it were, a new caſe.
67. Obſerve alſo to let, in like manner, the Pretorian Courts of equity have power to quallify the rigor of Law, that none be impriſoned but thoſe taht are able to pay their debts: their goods & chattels ought not to be engaged, but at the diſcreation of ſome good man: let time given be for payment, for the ſupplying the defects of Law; for if a remedy35 ought to be extended to him whom the Law hath paſt by, much more to him whom it hath wounded.
68. Take care that theſe Cenſorian and Praetorian Courts be by all means limited within caſes extraordinary, not invade ordinary Juridictions, leaſt peradventure the matter extend to the ſupplantation, rather than the ſupplement of Law.
69. Let theſe Juridictions reſide only in the higheſt Courts of Judicature, and not be communicated to courts Inferiour: for the power of extending, or ſupplying or moderating Laws, little differs from the power of making them.
70. But let not theſe Courts be aſſigned over to one man, but conſiſt of many: nor let the decrees thereof iſſue forth with ſilence, but let the Judges alledg reaſons of their ſentence36 and that openly in the Audience of the Court, that which is free in the power, may in the fame and reputation be confined.
71. Let their be no rubriques of blood, neither define of Capital crims, in what Court ſoever, but from a known and certain Law: for God himſelf firſt denounced death, afterwards inflicted it; nor is any man to be put to death, but he that knew beforehand that he ſinned againſt his own life.
72. In Courts of Cenſure, give way to a third tryal, that a neceſſity be not impoſed upon Judges of abſolving, or of condemning, but that they may pronounce a non Liquet; ſo in like manner, let Laws Cenſorian, not only be a penalty but an infamy that is, which may not inflict a puniſhment, but either end in admoniſion; or elſe chaſtiſe the delinquet with ſome light touch of Ignominy, and as it were37 a bluſhing ſhame.
73. In Cenſorian Courts let the firſt aggreſſions, and the middle Acts of great offences, and wicked attempts be puniſh't: yea although they were never perfectly accompliſh't: and let that be the cheifeſt uſe of thoſe Courts, ſeeing it appertaines to ſeverity, to puniſh the firſt approaches of wicked enterpriſes, And to Mercy to intercept the perpetration of them by correcting middle Acts.
74. Special regard muſt be taken, that in Pretorian Courts, ſuch caſes be not countenanced, which the Law hath not ſo much pretermitted, as ſlighted as frevilous or as odious, Judg'd unworthy redreſs.
75. Above all, it moſt imports the certainty of Laws, that Courts of equity do not ſo ſwell and overflow their banks, as under prtence of mittigating36 the rigour of Laws, they do diſſert or relaxe the ſtrength and ſinnes thereof, by drawing all to Arbitrement.
76. I adviſe you not to let Pretorian Courts have power to decree againſt expreſs Statutes, under any Pretence of equity, for if this ſhould be permitted, a Law Interpreter would become a Law maker, and all matters ſhould depend upon Arbitrement.
The Recorder of London; is of opinion, That the Juriſdiction of defining according to equity and conſcience; and that other, which according to ſtrict Law, ſhould be deputed to the ſame Courts: but Judg Rolle ſayes to ſeveral, by all meanes let there be a ſeperation of Courts, for there will be no diſtinction of Caſes, where there is commixtion of Juriſdictions: but you ſhall have Arbitrement incroach upon, and at laſt, ſwallow up Law.
3777. The Table of the Pretors amongſt the Romans came in uſe upon good ground: In theſe the Pretor ſet down and publiſht aforehand, by what forme of Law he would execute Judicature, after the ſame example, Judges in Pretorian Courts: The Kings Bench, Chancery, Common, Pleas, &c. ſhould propound certain Rules to themſelves (ſo far as may be) & openly publiſh them, for that is the beſt Law, which gives leaſt liberty to the Judg; He the beſt Judge that takes leaſt liberty to himſelf: you ſee how time alters Laws ſince Moſes recieved them from God: and what Laws Chriſt gave you in the Goſpel: and now how Pollitickly they are practiſed: by tedious Clerks, proud Students, covetous Councellors Self-will'd Serjeants: whoſe Learning is great: yet at laſt the Patient Clients are willing to go home, where they lament their loſſes, ſuſtained through the Errors of proceedings:40 the Craſy Judge he ſits quietly willing rather to ſleep, then to preſcribe a method of good wholſome Laws to the People: And thus the poore ſuffer: but I hope to give you a cleare way in paſſage onely, through all Courts that with theſe Rules before a Judge you may know and underſtand your Caſe, and the Judge alſo may give true and ſound Judgment, and ſupply that which is omitted by the Law, fot rhe worſt Tyranny is Law upon the rack: And where there is made a departure from the letter of Law, the Judge, of an Interpreter becomes a Law-giver.
78. I have found that there is likewiſe another kind of ſupplement of Caſes omitted, when one Law falleth upon another, and withal drawes with it caſes pertermitted, this comes to paſs in Laws or Statutes, which (as the uſual expreſſion) look back or reflect one upon another, Laws of this41 nature, are rarely and with great caution to be alleag'd, for I like not to ſee a two fac'd Janus in Lawes.
79. Arguments brought againſt Teſtimonies accompliſh thus much, that the caſe ſeems ſtrange, but not that it ſeems true, and he that goes about to elude and circumvent the words and ſentence of Law by fraud and captious fallicies, deſerves in like manner to be himſelf inſnar'd by a ſucceeding Law: wherefore in caſe of ſubtil ſhifts and ſineſter devices, it is very meet that Lawes ſhould look back upon, and mutually ſupport one another, that he who ſtudies evaſions, and everſion of Laws preſent may yet ſtand in awe of future Laws.
80. Lawes which ſtrenghten and eſtabliſh the true intentions of Records and Inſtruments, againſt the defects, and formes, and ſolemnities, do rightly comprehend matters paſt, for the40 greateſt inconvenience in a Law that refers back, is, that it diſturbeth; but theſe conformitory Laws, reſpect the peace and feeling of thoſe caſes which are Tranſacted and determined; yet you muſt take heed that caſes already adjudg'd be not reverſt or violated.
81. You muſt be very careful, that not thoſe Laws alone, be thought to reſpect things paſt, which invallide caſes already deſided; but thoſe alſo which prohidite and reſtrein future caſes neceſſarily connext with matters paſt: As for example, If a Law ſhould interdict ſome ki•d of Tradeſ-men the vend of their Commodites; for hereafter, the Letter of this Law is for the future: But the ſence and meaning takes hold of the time paſt: for now it is not warrentable for ſuch perſons to get their Livings this way.
82. Every declaratory, although41 there be no mention of time paſt, yet by the force of the Declaration, it is by all meanes to be extended to matters paſt, for the Interpretation doth not then begin to be in force, when it is declared, but is made contemporary with the Law it ſelf, wherefore never enact declaratory Laws but in caſes where Laws may in equity refer and look back one upon another: and thus I have ſhewen you the incertitude of Laws alſo; where no Law is found, I ſhall now engroſs the imperfections, perplexity and obſcurity of Laws.
83. Obſcurity of Laws ſpring from four cauſes: either from the exceſſive accumulation of Laws, ſpecially where there is a mixture of obſolete Laws; or from an ambiguous, or not ſo perſpicuous and delucide deſcription of Laws: or from the manner of expounding Law, either altogether neglected, or not rightly purſued: or laſtly, from contradiction and incertainty of Judgments,
4484. The Prophetical Law-giver ſaith, Pluet ſuper eos Laqueos, now there are no worſe ſnares than the ſnares of Laws ſpecially penal, if they be immenſe for number; and through the alterations of times unprofitable; they do not preſent a torch, but ſpread a net to our feet.
85. There are two wayes in uſe of making a new Statute, the one eſtabliſheth and ſtrengthens the former Statute about the ſame Ject: and then adds and changes ſomething; the other abrogates and cancels what was decreed before, and ſubſtitutes de integro, a new and uniforme Law, the latter way I approve: for by the former way Decrees become complicate and perplext; yet what is undertaken is indeed purſued: but the body of Law is the mean time corrupted; but certainly the more diligence is required in the latter where the deliberation is45 of the Law it ſelf, that is, the Decrees heretofore made are to be ſearched into and duely weighed and examined before the Law be publiſhed; but but the cheif point is, that by this meanes the Harmony of Lawes is notably deſigned fot the future.
86. It was a cuſtome in the State of Athens, to deligate ſix perſons for to reviſe and examine every year the contrary Titles of Law, which they called Antinomies, and ſuch as could not be reconciled, were propounded to the people, that ſome certainty might be defined touching them, after this Example let ſuch in every State, as have the power of making Lawes, review Anti-nomies every third or fift year, or as they ſee cauſe: And theſe may be ſearch't into and prepared by Committees aſſigned therto and after that exhibited to Aſſemblies, that ſo what ſhall be approv'd may be ſuffrages, be eſtabliſht and ſetled.
4587. Now let there not be too ſcrupulous and anxious pains taken in reconciling contrary Titles of Law, and of Salving (as Mr Phillip Green terms it) all points by ſubtil and Studie Diſtinctions, for this is the web of wit, and however it may carry a ſhew of modeſty and reverence, yet it is to be reckoned in the number of things prejudicial, and being that which makes the whole body of Law ill ſorted and incoherent; it were far better that the worſt Titles were cancell'd, and the reſt ſtand in force.
88. I adviſe you to let ſuch Lawes as are obſolete or growen out of uſe, as well as Anti-nomies, be propounded by delegates as a part of their charg to be repeall'd: for ſeeing expreſs Statute cannot regurarly be voyded by Diſuſe, it fals out that through a Diſeſtimation of Old Laws, the Authority of the reſt is ſomewhat embaſed:46 And the Cromwells Tyrannical Torture enſues, that Lawes alive are murthered and deſtroyed in the feare of God, with the deceitfull imbracements of Lawes dead: But above all beware of a Gangreen in Lawes.
89. For ſuch Lawes as are not lately publiſhed let the Pretorian Courts have power, in the mean ſpace, to define centrary to them; for although it hath been ſaid, not impertinently, No man ought to make himſelf wiſer then the Lawes: yet this may be underſtood of Lawes, when they are awake, not when they are aſleep: on the other ſide let not the more recent Statutes, which are found prejudicial to the Law publique be in the power of the Judges, but in the power of the King and the Counſellors of Eſtate, and ſupreem Authorities for redreſs, by ſuſpending their execution through Edicts and Acts, until Parliamentary Courts, and ſuch High Aſſemblies48 meet again, which have power to abrogate them, leaſt the ſafty of the Commonwealth ſhould in the mean while be endanger'd.
90. If Lawes accumulated upon Lawes, ſwell into ſuch vaſt volumes, or be obnoctious to ſuch confuſion, that it is expedient to reviſe them a new, and to reduce them into a ſound and ſolid body, intend it by all means and let ſuch a work be reputed an Heroicall noble work: and let the Author of ſuch a work, be rightly and deſervedly ranckt in the number of The Right Worſh. Ralph Gardener, Eſq Juſtice of Peace and Councellor of Eſtate to the Supream Authority of England &c. And ſuch Founders and Reſtorers of Law.
91. This purging of Lawes, and the contriving of a new Digeſt is five wayes accompliſht; firſt let obſolete Lawes which Mr. Thomas Heydon49 terms, old fables be left out. Secondly, Let the moſt approved of Antinomies be received, the contrary aboliſh't. Thirdly, Let all coincident Laws which import the ſame thing be expung'd, and ſome one, the moſt perfect among them retain'd of all the reſt: Fourthly, If there be any Laws which determine nothing, but only propound Queſtions, and ſo leave them undecided, let theſe likewiſe be Caſheer'd. Laſtly, let Laws too wordy and too prolix, be abridged into a more narrow compaſs.
92. And it will import very much for uſe, to compoſe and ſort apart in a new Digeſt of Laws, Law recepted for Common Law, which in regard of their beginning are time out of mind, And on the other ſide, Statutes ſuper-added from time to time: ſeeing in the delivery of a Juridical ſentence the Interpretation of Common Law, and Statute Laws, in many points is not the ſame: This Judg Roll.50 did in the Digeſts and Code.
93. But in this Regeneration and new Structure of Laws, retain preciſely the Words and the Text of the Ancient Laws, and of the Books of Law, though it muſt needs fall out that ſuch Collection muſt be made by Centoes and ſmaller portions: then ſort them in order: for although this might have been performed more aptly, and (if you reſpect right reaſon) more truely, by a new Text, than by ſuch a Conſarcination, yet in Laws, not ſo much the Stile and Deſcription, as Authority, and the Patron thereof, Antiquity, you muſt carefully obſerve, otherwiſe ſuch a work might ſeem a Scholaſtick buſineſs, and Method, rather than a body of Commanding Laws.
94. In this new Method of Laws, upon good advertiſement a Caveat hath been put in; that the Ancient51 volumes of Law ſhall be utterly extinguiſht, and periſh in oblivion, but at leaſt remain in Libraries, though the common and promiſcuous uſe thereof might be retained; for in Caſes of weighty conſequence, it will not be amiſs to conſult and look into the mutation and continuation of Laws paſt: and indeed it is uſually to ſprinckle modern matters with Antiquity, and this new body of Law muſt be confirmed only by ſuch, who in every State have the power of making Laws, leaſt perchance under colour of digeſting Ancient Laws, new Laws under hand be conveyed in.
95. I could wiſh that this Idea of Laws might be Peruſed, Practiſed, and Exalted, in the underſtanding of Learned and Wiſe men: in ſuch times as now when Philoſophy, Reaſon, Nature, and Experience, excels thoſe more Ancient times, whoſe Acts and Deeds they recognize: which fell out otherwiſe52 in Acts of Oliver Cromwell; For it is a great unhappineſs to the people, when the deeds of Henry the eight muſt be impoſed upon them Tirannically maimed and compiled by the Judgment and choice of a leſs wiſe and Learned man. Thus have I ſhewed you the obſcurity of Laws ariſing from the exceſſive and confuſed accumulation thereof: I ſhall next ſpeak of the dark and doubtfull deſcription of them.
96. Obſcure deſcription of Laws ariſe either from the Loquacity o•Verboſity of them; or again, from extream brevity, or from the preamble of a Law repugnant with the body of a Law.
97. I ſhall now inſtruct you how to enlighten the obſcurity of Law, ariſeing from a corrupt and crooked deſcription thereof. The Loquacity and Prolixity, which hath been uſed in53 ſetting down Laws I diſlike: neither doth ſuch a writer any way compaſs what he deſires, and labours for, but rather the quite contrary: For, while a man endeavors to purſue and expreſs every particular caſe in apt and proper tearms, hoping to gain more certitude thereby, contrary-wiſe it fals out that through many words, multitude of Queſtions are engendred: ſo as more ſound and ſolid interpretation of Law according to the genuine ſence and mind thereof is much intercepted through the noiſe of words.
98. And yet notwithſtanding a too conciſe and affected brevity for Majeſties ſake, or as more imperial, is not therefore to be approved ſpecially in theſe times, leaſt Law become perchance a Lesbian Rule: wherefore a middle temper'd ſtile is to be imbraced: and a generallity of words well ſtated to be ſought out; which though it do54 not ſo throughly purſue Caſes comprehended, yet it excludes Caſes not comprehended deerly enough.
99. Yet in ordinary and politick Laws and Edicts, wherein for moſt part no man adviſeth with his Counſil, but truſteth to his own Judgment, all ſhall be more amply explicated and pointed out, as it were with the finger, even to the meaneſt Capacity.
100. So neither ſhould I allow of preambles to Laws which amongſt the Ancients were held impertinencies, and which introduce diſputing and not Commanding Laws: If I could well away with Ancient cuſtomes: But theſe prefaces commonly (as the times are now) are neceſſary prefixt, not ſo much for explication of Law, as for perſwaſion that ſuch a Law, may paſs in the ſolemn meeting of a State, and again to give ſatisfaction to the Communalty, yet ſo far as poſſible may be,55 let Prologues be avoided and the Law begin with a Command.
101. The mind and meaning of a Law though ſometimes it may be drawn not improperly from Prefaces and Preambles, (as they term them) yet the Latitude and Extention thereof muſt not be fetcht from thence, for a Preamble by way of Example, ſometimes fetcheth in, Layes hold upon ſome of the moſt plauſible and moſt ſpecious paſſages; when yet the Law compriſeth many more: or on the contrary, the Law reſtraines and limits many Caſes, the reaſon of which limitations to inſert in the preface were ſuperfluous, wherefore the dimention and Latitude of a Law, muſt be taken from the body of a Law: for a Preamble often fals either ſhort or over.
102. And there is a very vitious manner of Recording of Laws, that is,56 when the Caſe at which the Law aimeth, is expreſt at large in the Preamble, afterwards from the force of the word (the like) or ſome ſuch term of relation, the body of a Law is reverſt into the Preamble, ſo as the Preamble is inſerted and incorporated into the Law it ſelf, which is an obſcure & not ſo ſafe a courſe, becauſe the ſame diligence uſeth not to be taken in pondering and examining the works of a Preamble, as there uſeth to be done in the body of a Law it ſelf. Touching the incertainty of laws proceeding from an ill deſcription of them, I ſhall handle more at large hereafter, if this be acceptable: I ſhall next teach you how to expound Laws, and by what wayes.
103. The wayes of expounding Law and Solving doubts are five: for this is done either by Court Rolls and Records, or by Authentique writs: or by Subſidiary books or by prelections,57 or by reſponſes and reſolutions of wiſe men, all theſe if they be well inſtituted and ſet down, will be ſingular helps at hand againſt the obſcurity and errors of Laws.
104. Now eſpecially above all, let the Judgments delivered in higher and principal Courts of Judicature, and in matters of grave importance, ſpecially dubious, and which have ſome difficulty and newneſs in them, be taken with faith and diligence: for Decrees are the Anchors of Law, as Laws are of the Republick.
105. The manner of collecting ſuch Judgments and reporting them let this be, Regiſter the Caſe preciſely, the Judgments exactly; annex the reaſons of the Judgments alleadged by the Judges, mingle not Authorities of caſes brought for example with caſes principal, as for perorations of Sarjeants, Counſellors, and Barreſters &c. Unleſs there be ſomething in them very remarkeable, paſs them over with ſilence.
58106. The perſons which ſhould collect theſe Judgments,•t them be of the order & rank of Sarjeant Wild, Mainard, Twiſden, Sr Peter Ball &c. the Learnedſt Advocates, and let them receive a liberal Remuneration from the State, let not the Judges themſelves meddle at all with theſe Reports, leaſt perchance, devoted to their own opinions, and ſupported by their own Author•ty they tranſcend the limits of a Reporter.
107. Digeſt theſe Judgments according to the order and continuation of times, not according to Method and Titles: for writings of this nature are as it were, the Hiſtory and Reports of Laws; nor do the Decrees alone but their times alſo give light to a wiſe Judg.
108. I adviſe you to let the body of law be built only upon the laws themſelves which conſtitutes the common-Law; next of Decrees or Statutes; in the third place of Judgments, enrolled;59 beſides theſe, either let there he no othere Authenticks at all, or ſparingly entertain'd.
109. Nothing ſo much imports certainty of Laws (of which I now diſcourſe) as that Authentick writings, be confined within moderate bounds; and that the exceſſive multitude of Authors and Doctors of the Laws, whereby the mind and ſentence of Laws are diſtracted, the Judg confounded; proceedings are made immortal, and the Advocate himſelf deſpairing to read over and conquer ſo many Books, betakes himſelf to Abridgmen's be diſcarded: It may be ſome good Gloſs, and ſome few of Claſſick writers, or rather ſome ſmall parcels of few writers, may be received for Authenticks, yet of the reſt ſome uſe may be made in Libraries, where Judges are Advocates, may as occaſion is offered, read their diſcourſe•; but in caſes to be pleaded at the Barr, let them not be permitted to be60 brought, & alledged in the Court nor grow•p into Authority.
110 I adviſe you next, that you do not let the knowledg and practiſe of the Law be deſtituted, but rather be well provided with Auxiliary Books; they are in general ſix ſorts, Inſtitutes, of the ſignification of words; of the Rules of Law; Ancient Records Abridgments of Formes of Pleadings.
111. Young Students, and Clerks, are to be entered by Inſtitutes, that they may the more profoundly and orderly draw and take in the knowledg and difficulties of the Laws; compoſe theſe Inſtitutes after a clear and perſpicuous manner; In theſe Elementary Books run over the whole private Law, not paſſing by ſome Titles, and dwelling to long upon others, but briefly touching ſomething in all; that ſo coming to read through the whole body of Laws nothing may be preſented altogether ſtrange, but what hath bin taſted, and preconceived by61 ſlight notion, touch not the publick Laws in Inſtitutes, but let that be deduced from the Judges of themſelves.
112. I adviſe you to compile a Commentary upon the Termes of Law, be not too curious and tedious in the explication thereof; and of rendring their ſenſe for the ſcope here, is not exactly to ſeek out the definition of words, but ſuch explications only, as may clear the paſſage to the reading of the Books of Law; digeſt not this Treatiſe by the Letters of the Alphabet; leave that to ſome Index: Or amend that Book already extant called The Termes of the Law: And let ſuch words as import the ſame thing be ſorted, together, that in the comprehenſion of the ſenſe, one may Adminiſter help unto the other.
113. A ſound and well l•ured Treatiſe of divers Rules of•onduceth (if any thing doth) •certainty of Laws, a work worthy the62 Pen of the greateſt Witts, and wifeſt Juriſts, nor do I approve of what is extant in this kind. And not only noted, and common Rules are to be collected, but alſo othesr more ſubtil, and abſtru•e, which may be abſtracted out of the Harmony of Laws, and Judged Caſes, ſuch as are ſometimes found in the beſt Rubricks; & theſe are the general Dictates of Reaſon, and the Primum Mobile as it were of Law.
114. But all Decrees and Placits of Law, muſt not be taken for Rules, as is wont abſurdly enough: For if this ſhould be admitted, then ſo many Laws, ſo many Rules, for a Law•s nothing elſe but a Commanding Rule; But accept thoſe for Rules, which cleave to the very form of Juſtice, from whence for moſt part, the ſame Rules are commonly found through the〈◊〉Laws of different States, unleſs〈◊〉they vary for the Refferen•〈◊〉formes of publick Goverment.
63115. After you have delivered in a brief & ſubſtantial comprehenſion of〈◊〉, let ther be, for explication an•t•ples, & moſt clear & lucudent deciſions of caſes, diſtinctions & exceptions for limitations; points concurrent in ſenſe for Amplification, of the ſame Rule.
116. It is well given in precepts, that a Law ſhould not be drawn from Rules from the Law in force, neither is a proof to be taken from the words of a Rule; as it were a Text of Law: for a Rule (as the Mariners Needle doth the Poles) Indicates only, not determines Law.
117. Beſides the Idea of Law, it will avail alſo, to ſurveigh the Antiquities or Ancient Records of Laws, whoſe Authority although it be vaniſht; yet their reverence remaines ſtill; And let the writings and Judgments concerning Laws be received for the Antiquities of Laws, which in time preceded the body of Laws, whether they were publiſht or not; for64 muſt not be loſt therefore; out of theſe Records ſelect what ever is moſt uſefull (for there will be found much vain and frivolous matter in them) And collect them into one volume, leſt old Fables, (as the Learned Buxt•cals them) be mixt with the Laws themſelves.
118. 〈…〉〈 in non-Latin alphabet 〉, becauſe the foundation of this Treatiſe, lies in the Spirit of the Bible, thus collected as you ſee, and it much imports the practick part of Laws, that the whole Law be digeſted into places and Titles, whereto a man may have (as occaſion ſhall be given) a ſuddain recourſe, as to a furniſht promptuary for preſent practiſe, theſe Books of Abridgments, both reduce into order what was diſperſed, and abreviate what was diſuſed and Prolix in Law, but caution muſt be taken that thoſe Breviaries make not men prompt for the practick part, and ſlothfull for the knowledg it ſelf: For their proper uſe and office is this, that by them the65 Law may be tilled, over again, and not throughly Learned; and theſe Summaries muſt by all means be collected with great diligence faith and Judgment, leaſt they commit Fellony againſt the Law.
119. 〈…〉〈 in non-Latin alphabet 〉(i. e.) The Secret of the Lord is for them that fear him, and his Commandement is to make them know it. Thus you ſee the Miſteries of God and Jeſus Chriſt lies not bare to falſe and adulterate eyes in the Laws of the Old and New Teſtament, but are hid and wrapped up in decent coverings from the ſight of vulgar and carnal men.
120. You Lawyers that are Servants of God, and Secretaries of Nature, make a collection of divers Formes of Pleading in every kind, for this conduceth much to the practick part: and certainly theſe Formes do diſcover the Oracles and ſecret miſteries of Laws; but in Formes of pleading,66 they are better and more largely diſplayed like the fiſt to the palm.
121. Some courſe you muſt take for the cutting off, and ſaisfying particular doubts which emerge from time to time; for it is a hard caſe that they which deſire to ſecure themſelves from error, ſhould find no guid to the way, but that preſent buſineſſes ſhould be hazarded; and there ſhould be no means to know the Law before the matter be diſpatcht.
122. That the reſolution of the wiſe, given to Clients touching point of Law, whether by Advocates or Profeſſors, ſhould be of ſuch Authority, that it may not be Lawfull for the Judg to depart from their opinion, I cannot approve, let Law be derived from ſworn Judges.
123. To feel and ſound Judgments by fained Caſes and Perſons, that by this means, men might find out what the courſe and proceeding of Law will be, I approve not, for it diſhonoureth67 the Majeſty of Laws, and is to be accounted a kind of prevarications o•double dealing: and it is a fowl ſight to ſee places of Judicature to borrow any thing from the Stage.
124. Wherefore let as well the Decrees, as the Anſwers and Counſels proceed from the Judges alone; thoſe of Suits depending; theſe of difficult points of law, in the general, require not theſe deciſions whether in cauſes private or publick, from the Judges themſelves (for this were to make the Judg an Advocate) but of the King, or of the State: From theſe let the order be directed unto the Judges: And let the Judges thus Authorized hear the reaſons on both ſides, both of the Advocates or of the Committees deputed by the parties to whom the matter appertaineth; or of them aſſigned by the Judges themſelves if neceſſity ſo require; and weighing the Cauſe, let them deliver the Law upon the Caſe and declare it, let theſe verdicts68 and Counſels, be recorded and notified amongſt Caſes adjudged, and be of equal Authority.
125. Next in order let your Lectures of Law, and the exerciſe of thoſe that addreſs themſelves to the Studies of Law, be ſo inſtituted and ordered, that all may tend rather to the laying aſleep, than the awaking of Queſtions and Controverſies in Law For (as the matter is now carried) a School is ſet up, and open amongſt all, to the multiplying of Alterations and Queſtions in Law: as if their aime was only to make oſtentation of wit; and this is an old deſeaſe, for even amongſt the Ancients, it was, as it were, a glory, by Sects and Factions to cheriſh rather than extinguiſh many Queſtions concerning Law. Provide againſt this inconvenience.
126. Judgments become incertain either through immature and too precipitate preceedings to ſentence; or through Emulation of Courts; or69 through ill and unskilful regiſtring of Judgments; or becauſe there is a too eaſie and expedite way open of reverſing and reſcinding them, wherefore it muſt be provided that Judgments Iſſue forth not without a ſtaid deliberation had aforehand, and that Courts bare a reverent reſpect to one another, and that Decrees be drawn up faithfully and wiſely; and that the way to repeal Judgments be narrow, rocky and ſtrewed as it were with ſharp ſtones.
127. If a Iudgment hath been awarded upon a caſe in a principal Court, and the like caſe intervene in another Court, proceed not to ſentence before the matter be adviſed upon in ſome ſolemn Aſſembly of Judges: for if Judgments awarded muſt needs be repeal'd, yet let them be interred with Honour.
128. For Courts to be at debate70 and variance about Juriſdictions is a humane frailty; and the more becauſe this intemperance, through a miſpriſion and vain conceit (that it is part of a ſtout reſolute Judg, to enlarge the priviledges of the Court,) is openly countenanced and ſpurred on, whereas it hath need of the bridle: but that out of this heat of ſtomack Courts ſhould ſo eaſily reverſe on both ſides Judgments awarded, which nothing pertain to Juriſdiction, is an inſufferable evil, which by all means ſhould be repreſſ'd and puniſht by Kings or Counſels of State, or the form of Government, for it is a preſident of the worſt Example, that Courts, that ſhould diſtribute peace, ſhould themſelves practice Duels.
129. Let there not be too eaſie and free paſſage made to the repealing of Judgments by appellations, and writs of Errors or re-examination, &c. It is maintained, by a Judg in the Common71 Pleas, that a Suit may be brought into a higher Court, as entire & untried, the Judgment paſt upon it ſet aſide but the execution thereof may be ſtaid; in the Kings Bench is of opinion that the Judgment it may ſtand in force, but the execution thereof may be ſtaid; neither of theſe is to be allowed, unleſs the Courts wherein the Judgment was awarded were of a baſe and inferiour Order, but rather that both the Judgment ſtand, and the execution thereof go on, ſo a Caveat be put in by the Defendant for damages and charges if the Judgnent ſhould be reverſt.
130. Now all they which have written of Laws hitherto; have handled many things goodly for diſcourſe but remote from uſe; that I ave written is received from the beſt preſidents•n the world, and is what humane ſociety is capable of, what maketh for the Weale publiek, what natural Equity is, what the Law of Nations,72 And how Moſes received them from〈…〉〈 in non-Latin alphabet 〉(i. e.) The all enlightning receſs of Souls, how the law Chriſt commanded was love one another, & to do to all men, as they would be don unto, before his glorious Reſurrection & Aſcention into heaven where he ſitteth at the right hand of God:〈…〉〈 in non-Latin alphabet 〉(i. e.) And thus ſhall he come again to Judgment, as he was ſeen to go up anſwerable to what he himſelf ſaid, as the Lightning commeth out of the Eaſt and ſhineth unto the weſt ſo ſhall alſo the coming of the Son of man be &c. therfore let us ſerve God, whoſe Divine Majeſty I humbly implore through his Son, and our Saviour, that he would vouchſafe gratiouſly to direct and accept73 theſe and ſuch like Sacrifices of hum•ne underſtanding, ſeaſoned with Religion as with ſalt, and incenſed to his glory.