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THIS work is to be done, to use some few words, which is the language of action and effect, in this manner.

It consisteth of two parts; the digest or recompiling of the common laws, and that of the sta

tutes.

the judgment of the composers of this work, to decide the law either way, except there be a current stream of judgments of later times; and then I reckon the contrary cases amongst cases obsolete, of which I have spoken before: nevertheless, this diligence would be used, that such

In the first of these, three things are to be cases of contradiction be specially noted and done:

1. The compiling of a book "De antiquitatibus juris."

2. The reducing or perfecting of the course or corps of the common laws.

3. The composing of certain introductive and auxiliary books touching the study of the laws.

collected, to the end those doubts, that have been so long militant, may either, by assembling all the judges in the exchequer chamber, or by parliament, be put into certainty. For to do it, by bringing them in question under feigned parties, is to be disliked. "Nihil habeat forum ex scena."

For the first of these, all ancient records in Fourthly, All idle queries, which are but semiyour Tower, or elsewhere, containing acts of par- naries of doubts, and uncertainties, are to be left liament, letters patents, commissions, and judg-out and omitted, and no queries set down, but of ments, and the like, are to be searched, perused, great doubts well debated, and left undecided and weighed and out of these are to be selected those that are of most worth and weight, and in order of time, not of titles, for the more conformity with the year-books, to be set down and registered, rarely in "hæc verba ;" but summed with judgment, not omitting any material part; these are to be used for reverend precedents, but not for binding authorities.

For the second, which is the main, there is to be made a perfect course of the law "in serie temporis," or year-books, as we call them, from Edward the First to this day in the compiling of this course of law, or year-books, the points following are to be observed.

for difficulty; but no doubting or upstarting queries, which, though they be touched in argument for explanation, yet were better to die than to be put into the books.

Lastly, Cases reported with too great prolixity would be drawn into a more compendious report; not in the nature of an abridgment, but tautologies and impertinences to be cut off: as for misprinting, and insensible reporting, which many times confound the students, that will be “obiter” amended; but more principally, if there be any thing in the report which is not well warranted by the record, that is also to be rectified: the course being thus compiled, then it resteth but for your majesty to appoint some grave and sound lawyers, with some honourable stipend, to be reporters* for the time to come, and then this is settled for all times.

First, All cases which are at this day clearly no law, but constantly ruled to the contrary, are to be left out; they do but fill the volumes, and season the wits of students in a contrary sense of law. And so, likewise, all cases, wherein that is solemnly and long debated, whereof there is now FOR the auxiliary books that conduce to the no question at all, are to be entered as judgments study and science of the law, they are three: Inonly, and resolutions, but without the arguments, stitutions; a treatise "De regulis juris;" and a which are now become but frivolous: yet, for the better book "De verborum significationibus," or observation of the deeper sort of lawyers, that terms of the law. For the Institutions, I know they may see how the law hath altered, out of well there be books of introductions, wherewith which they may pick sometimes good use, I do students begin, of good worth, especially Littleadvise, that upon the first in time of those obso-ton and Fitzherbert's "Natura brevium;" but lete cases there was a memorandum set, that at they are noways of the nature of an institution; that time the law was thus taken, until such a the office whereof is to be a key and general pretime, &c. paration to the reading of the course. And principally it ought to have two properties; the one a perspicuous and clear order or method; and the other, a universal latitude or comprehension, that the students may have a little prenotion of every thing, like a model towards a great building. For the treatise "De regulis juris," I hold it, of all other things, the most important to the health, as I may term it, and good institutions of any laws: it is indeed like the ballast of a ship,

Secondly, Homonymiæ, as Justinian calleth them, that is, cases merely of iteration and repetition, are to be purged away: and the cases of identity, which are best reported and argued, to be retained instead of the rest; the judgments, nevertheless, to be set down, every one in time as they are, but with a quotation or reference to the case where the point is argued at large: but if the case consist, part of repetition, part of new matter, the repetition is only to be omitted.

Thirdly, As to the Antinomiæ, cases judged to the contrary, it were too great a trust to refer to

*This constitution of reporters I obtained of the king, after I was chancellor; and there are two appointed with 1007. a year apiece stipend.

to keep all upright and stable; but I have seen little in this kind, either in our law or other laws, that satisfieth me. The naked rule or maxim doth not the effect: It must be made useful by good differences, ampliations, and limitations, warranted by good authorities; and this not by raising up of quotations and references, but by discourse and deducement in a just tractate. In this I have travelled myself, at the first more cursorily, since with more diligence, and will go on with it, if God and your majesty will give me leave. And I do assure your majesty, I am in good hope, that when Sir Edward Coke's Reports, and my rules and decisions shall come to posterity, there will be, whatsoever is now thought, question, who was the greater lawyer? For the books of the terms of the law, there is a poor one, but I wish a diligent one, wherein should be comprised not only the exposition of the terms of law, but of the words of all ancient records and precedents.

For the abridgments, I could wish, if it were possible, that none might use them, but such as had read the course first, that they might serve for repertories to learned lawyers, and not to make a lawyer in haste: but since that cannot be, I wish there were a good abridgment composed of the two that are extant, and in better order. So much for the common law.

repealed; for if the repeal be doubtful, it must be so propounded to the parliament.

2. The next is, to repeal all statutes which are sleeping and not of use, but yet snaring and in force: in some of those it will perhaps be requisite to substitute some more reasonable law, instead of them, agreeable to the time; in others a simple repeal may suffice.

3. The third, that the grievousness of the penalty in many statutes be mitigated, though the ordinance stand.

4. The last is, the reducing of concurrent statutes, heaped one upon another, to one clear and uniform law. Towards this there hath been already, upon my motion, and your majesty's direction, a great deal of good pains taken; my Lord Hobart, myself, Serjeant Finch, Mr. Heneage Finch, Mr. Noye, Mr. Hackwell, and others, whose labours being of a great bulk, it is not fit now to trouble your majesty with any further particularity therein; only by this you may perceive the work is already advanced: but because this part of the work, which concerneth the statute laws, must of necessity come to parliament, and the Houses will best like that which themselves guide, and the persons that themselves employ, the way were to imitate the precedent of the commissioners for the canon laws in 27 Hen. VIII., and 4 Edw. VI., and the commissioners for the union of the two realms, "primo"

FOR the reforming and recompiling of the sta- of your majesty, and so to have the commistute law, it consisteth of four parts.

1. The first, to discharge the books of those statutes, where the case, by alteration of time, is vanished; as Lombards Jews, Gauls half-pence, &c. Those may nevertheless remain in the libraries for antiquities, but no reprinting of them. The like of statutes long since expired and clearly

sioners named by both Houses; but not with a precedent power to conclude, but only to pre-. pare and propound to parliament.

This is the best way, I conceive, to accomplish this excellent work, of honour to your majesty's times, and of good to all times; which I submit to your majesty's better judgment.

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of God himself, is fitter to be named for honour's sake to other lawgivers, than to be numbered or ranked amongst them. Minos, Lycurgus, and Solon, are examples for themes of grammar scholars. For ancient personages and characters, now-a-days, use to wax children again; though that parable of Pindarus be true, the best thing is water: for common and trivial things are many times the best, and rather despised upon pride, because they are vulgar, than upon cause or use. Certain it is, that the laws of those three lawgivers had great prerogatives. The first, of fame, because they were the pattern amongst the Grecians: the second of lasting, for they continued longest without alteration: the third, of a spirit of reviver, to be often oppressed, and often restored.

Amongst the seven kings of Rome four were lawgivers: for it is most true, that a discourser of Italy saith; "there was never state so well swaddled in the infancy, as the Roman was by the virtue of their first kings; which was a principal cause of the wonderful growth of that state in after-times."

The decemvirs' laws were laws upon laws, not the original; for they grafted laws of Græcia upon the Roman stock of laws and customs: but such was their success, as the twelve tables which they compiled were the main body of the laws which framed and wielded the great body of that estate.

that followed his times for five successions. to the Hebrews, because he was the scribe But, kings, by giving their subjects good laws, may, if they will, in their own time, join and graft this golden head upon their own necks after their death. Nay, they may make Nabuchodonozor's image of monarchy golden from head to foot. And, if any of the meaner sort of politics, that are sighted only to see the worst of things, think, that laws are but cobwebs, and that good princes will do well without them, and bad will not stand much upon them; the discourse is neither good nor wise. For certain it is, that good laws are some bridle to bad princes, and as a very wall about government. And, if tyrants sometimes make a breach into them, yet they mollify even tyranny itself, as Solon's laws did the tyranny of Pisistratus: and then commonly they get up again, upon the first advantage of better times. Other means to perpetuate the memory and merits of sovereign princes are inferior to this. Buildings of temples, tombs, palaces, theatres, and the like, are honourable things, and look big upon posterity but Constantine the Great gave the name well to those works, when he used to call Trajan, that was a great builder, Parietaria, wallflower, because his name was upon so many walls: so, if that be the matter, that a king would turn wall-flower, or pellitory of the wall, with cost he may. Adrian's vein was better, for his mind was to wrestle a fall with time; and being a great progressor through all the Roman empire, whenever he found any decays of bridges, or highways, or cuts of rivers and sewers, or walls, or banks, or the like, he gave substantial order for their repair with the better. He gave, also, multitudes of charters, and liberties for the comfort of corporations and companies in decay: so that his bounty did strive with the ruins of time. But yet this, though it were an excellent disposition, went but in effect to the cases and shells of a commonwealth. It was nothing to virtue or vice. A bad man might indifferently take the benefit and ease of his ways and bridges, as well as a good; and bad people might purchase good charters. Surely the better works of perpetuity in princes are those that wash the inside of the cup; such as are foundations of colleges, and lectures for learning and education of youth; likewise foundations and institutions of orders and fraternities, for nobleness, enterprise, and obedience, and the like. But yet these also are but like plantations of orchards and gardens, in plots and spots of ground here and there; they do not till over the whole kingdom, and make it fruitful, as doth the establishing of good laws and ordinances; which makes a whole nation to be as a well-ordered college or foundation.

This kind of work, in the memory of times, is rare enough to show it excellent: and yet, not so rare, as to make it suspected for impossible, inconvenient, or unsafe. Moses, that gave laws

These lasted a long time, with some supplementals and the Pretorian edicts in albo;" which were, in respect of laws, as writing tables in respect of brass; the one to be put in and out, as the other is permanent. Lucius Cornelius Sylla reformed the laws of Rome: for that man had three singularities, which never tyrant had but he; that he was a lawgiver, that he took part with the nobility, and that he turned private man, not upon fear, but upon confidence.

Cæsar long after desired to imitate him only in the first, for otherwise he relied upon new men; and for resigning his power Seneca describeth him right; "Cæsar gladium cito condidit, nunquam posuit," "Cæsar soon sheathed his sword, but never put it off." And himself took it upon him, saying in scorn of Sylla's resignation; "Sylla nescivit literas, dictare non potuit," "Sylla knew no letters, he could not dictate." But for the part of a lawgiver, Cicero giveth him the attribute; "Cæsar, si ab eo quæreretur, quid egisset in toga; leges se respondisset multas et præclaras tulisse;" "If you had asked Cæsar what he did in the gown, he would have answered, that he made many excellent laws.” His nephew Augustus did tread the same steps, but with deeper print, because of his long reign in peace; whereof one of the poets of his time saith,

"Pace data terris, animum ad civilia vertit Jura suum; legesque tulit justissimus auctor.' From that time there was such a race of wit and

authority, between the commentaries and decisions of the lawyers, and the edicts of the emperors, as both law and lawyers, were out of breath. Whereupon, Justinian in the end recompiled both, and made a body of laws such as might be wielded, which himself calleth gloriously, and yet not above truth, the edifice or structure of a sacred temple of justice, built indeed out of the former ruins of books, as materials, and some novel constitutions of his own.

In Athens, they had sexviri, as Eschines observeth, which were standing commissioners, who did watch to discern what laws waxed improper for the times, and what new law did in any branch cross a former law, and so "ex officio" propounded their repeal.

my opinion of them without partiality either to my profession or country, for the matter and nature of them, I hold them wise, just, and moderate laws: they give to God, they give to Cæsar, they give to the subject, what appertaineth. It is true they are as mixed as our language; compounded of British, Roman, Saxon, Danish, Norman customs: and, surely, as our language is thereby so much the richer, so our laws are likewise by that mixture the more complete.

Neither doth this attribute less to them, than those that would have them to have stood out the same in all mutations. For no tree is so good first set, as by transplanting and grafting. I remember what happened to Callisthenes, that followed Alexander's court, and was grown into some dis

King Edgar collected the laws of this king-pleasure with him, because he could not well brook dom, and gave them the strength of a fagot the Persian adoration. At a supper, which with bound, which formerly were dispersed; which the Grecians was a great part talk, he was desired, was more glory to him, than his sailing about the king being present, because he was an eloquent this island with a potent fleet: for that was, as man, to speak of some theme, which he did; and the Scripture saith, "via navis in mari," "the chose for his theme, the praise of the Macedonian way of a ship in the sea;" it vanished, but this nation, which though it were but a filling thing to lasteth. Alphonso the Wise, the ninth of that praise men to their faces, yet he performed it with name, King of Castile, compiled the digest of the such advantage of truth, and avoidance of flattery, laws of Spain, entitled the "Siete Partidas ;" an and with such life, as was much applauded by the excellent work, which he finished in seven years. hearers. The king was the less pleased with it, And as Tacitus noteth well, that the Capitol, not loving the man, and by way of discountenance though built in the beginnings of Rome; yet was said: It was easy to be a good orator in a pleasing fit for the great monarchy that came after; so that theme. "But," saith he to him, "turn your style, building of laws sufficeth the greatness of the and tell us now of our faults, that we may have empire of Spain, which since hath ensued. the profit, and not you the praise only;" which he presently did with such quickness, that Alexander said, That malice made him eloquent then, as the theme had done before. I shall not fall into either of these extremes, in this subject of the laws of England; I have commended them before for the matter, but surely they ask much amendment for the form; which to reduce and perfect, I hold to be one of the greatest dowries that can be conferred upon this kingdom: which work, for the excellency, as it is worthy your majesty's act and times, so it hath some circumstance of propriety agreeable to your person. God hath blessed your majesty with posterity, and I am not of opinion that kings that are barren are fittest to supply perpetuity of generations by perpetuity of noble acts; but, contrariwise, that they that leave posterity are the more interested in the care of future times; that as well their progeny, as their people, may participate of their merit.

Lewis XI. had it in his mind, though he performed it not, to have made one constant law of France, extracted out of the civil Roman law, and the customs of provinces, which are various, and the king's edicts, which with the French are statutes. Surely he might have done well, if, like as he brought the crown, as he said himself, from Page, so he had brought his people from Lackey; not to run up and down for their laws to the civil law, and the ordinances, and the customs, and the discretions of courts, and discourses of philosophers, as they use to do.

King Henry VIII., in the twenty-seventh year of his reign, was authorized by parliament to nominate thirty-two commissioners, part ecclesiastical, and part temporal, to purge the canon law, and to make it agreeable to the law of God, and the law of the land; but it took not effect: for the acts of that king were commonly rather proffers and fames, than either well grounded, or well pursued: but, I doubt, I err in producing so many examples. For, as Cicero said to Cæsar, so I may say to your majesty," Nil vulgare te dignum videri possit. Though, indeed, this, well understood, is far from vulgar: for that the laws of the most kingdoms and states have been like buildings of many pieces, and patched up from time to time according to occasions, without frame or model.

Now for the laws of England, if I shall speak

Your majesty is a great master in justice and judicature, and it were pity the fruit of that your virtue should not be transmitted to the ages to come. Your majesty also reigneth in learned times, the more, no doubt, in regard of your own perfection in learning, and your patronage thereof. And it hath been the mishap of works of this nature, that the less learned time hath, sometimes, wrought upon the more learned, which now will not be so. As for myself, the law was my profession, to

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IT MAY PLEASE YOUR SACRED MAJESTY,

the other point, I for my part should be very far WITH the first free time from your majesty's from advising your majesty to give ear unto it. service of more present dispatch, I have perused For, as it is said in the psalm, "If thou, Lord, the projects of Sir Stephen Proctor, and do find it a should be extreme to mark what is done amiss, collection of extreme diligence and inquisition, who may abide it?" So it is most certain, that and more than I thought could have met in one your people is so ensnared in a multitude of penal man's knowledge. For, though it be an easy laws, that the execution of them cannot be borne. matter to run over many offices and professions, And, as it followeth; "But with thee is mercy, and to note in them general abuses or deceits; that thou mayest be feared:" so it is an intermixyet, nevertheless, to point at and trace out the ture of mercy and justice that will bring you fear particular and covert practices, shifts, devices, and obedience: for too much rigour makes people tricks, and, as it were, stratagems in the meaner desperate. And, therefore, to leave this, which sort of the ministers of justice or public service, was the only blemish of King Henry VII.'s reign, and to do it truly and understandingly, is a dis- and the unfortunate service of Empson and Dudcovery whereof great good use may be made for ley, whom the people's curses, rather than any your majesty's service and good of your people. law, brought to overthrow; the other work is a But because this work, I doubt not, hath been to work not only of profit to your majesty, but of the gentleman the work of years, whereas my piety towards your people. For, if it be true in certificate must be the work but of hours or days, any proportion, that within these five years of and that it is commonly and truly said, that he your majesty's happy reign, there hath not five that embraceth much, straineth and holdeth the hundred pounds benefit come to your majesty by less, and that propositions have wings, but ope- penal laws, the fines of the Star Chamber, which ration and execution have leaden feet: I most are of a higher kind, only excepted, and yet, humbly desire pardon of your majesty, if I do for nevertheless, there hath been a charge of at least the present only select some one or two principal | fifty thousand pounds, which hath been laid upon points, and certify my opinion thereof; reserving your people, it were more than time it received a the rest as a sheaf by me to draw out, at further time, further matter for your majesty's information for so much as I shall conceive to be fit or worthy the consideration.

For that part, therefore, of these projects which concerneth penal laws, I do find the purpose and scope to be, not to press a greater rigour or severity in the execution of penal laws; but to repress the abuses in common informers, and some clerks and under-ministers, that for common gain partake with them for if it had tended to

remedy.

This remedy hath been sought by divers statutes, as principally by a statute in 18, and another of 31, of the late queen of happy memory. But I am of opinion, that the appointing of an officer proper for that purpose, will do more good than twenty statutes, and will do that good effectually, which these statutes aim at intentionally.

And this I do allow of the better, because it is none of those new superintendencies, which I see many times offered upon pretence of reformation,

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