THE ELEMENTS OF THE COMMON OF ENGLAND. CONTAINING, FIRST, A Collection of some of the principal RULES and MAXIMS of the COMMON LAW, with their Latitude and Extent. SECONDLY, The Use of the COMMON LAW for Preservation of our Persons, Goods, and Good Names; according to the Laws and Customs of this Land. TO HER SACRED MAJESTY. I DO here most humbly present and dedicate unto your Majesty a sheaf and cluster of fruit of the good and favourable season, which by the influence of your happy government we enjoy; for if it be true that silent leges inter arma, it is also as true, that your Majesty is in a double respect the life of our laws; once, because without your authority they are but litera mortua; and again, because you are the life of our peace, without which laws are put to silence. And as the vital spirits do not only maintain and move the body, but also contend to perfect and renew it; so your sacred Majesty, who is anima legis, doth not only give unto your laws force and vigour; but also hath been careful of their amendment and reforming: wherein your Majesty's proceeding may be compared, as in that part of your government, for if your government be considered in all the parts, it is incomparable, with the former doings of the most excellent Princes that ever have reigned, whose study altogether hath been always to adorn and honour times of peace with the amendment of the policy of their laws. Of this proceeding in Augustus Cæsar the testimony yet remains. Pace data terris, animum ad civilia vertit Jura suum; legesque tulit justissimus auctor. Hence was collected the difference between gesta in armis and acta in toga, whereof Cicero disputeth thus: Ecquid est, quod tam proprie dici possit actum ejus, qui togatus in republica cum potestate imperioque versatus sit, quam lex? quære acta Gracchi: leges Sempronia proferantur. Quære Sylla: Cornelia. Quid? Cn. Pompeii tertius consulatus in quibus acPhil.i.c.7. tis consistit? nempe in legibus. A Cæsare ipso si quæreres quidnam egisset in urbe, et in toga: leges multas se responderet, et præclaras tulisse. The same desire long after did spring in the emperor Justinian, being rightly called ultimus imperatorum Romanorum, who having peace in the heart of his empire, and making his wars prosperously in the remote places of his dominions by his lieutenants, chose it for a monument and honour of his government, to revise the Roman laws, and to reduce them from infinite volumes and much repugnancy and uncertainty into one competent and uniform corps of law; of which matter himself doth speak gloriously, and yet aptly, calling it, proprium et sanctissimum templum justitiæ consecratum: a work of great excellency indeed, as may well appear, in that France, Italy, and Spain, which have long since shaken off the yoke of the Roman empire, do yet nevertheless continue to use the policy of that law: but more excellent had the work been, save that the more ignorant and obscure time undertook to correct the more learned and flourishing time. To conclude with the domestic example of one of your Majesty's royal ancestors: King Edward I. your Majesty's famous progenitor, and principal law-giver of our nation, after he had in younger years given himself satisfaction in glory of arms, by the enterprise of the Holy Land, having inward peace, otherwise than for the invasion which himself made upon Wales and Scotland, parts far distant from the centre of the realm, he bent himself to endow his state with sundry notable and fundamental laws, upon which the government ever since hath principally rested. Of this example, and other the like, two reasons may be given; the one, because that kings, which, either by the moderation of their natures, or the maturity of their years and judgment, do temper their magnanimity with justice, do wisely consider and conceive of the exploits of am bitious wars, as actions rather great than good; and şo, distasted with that course of winning honour, they with action convert their minds rather to do somewhat for the better uniting of human society, than for the dissolying or disturbing of the same. Another reason is, because times of peace, drawing for the most part with them abundance of wealth, and finesse of cunning, do draw also, in further consequence, multitudes of suits and controversies, and abuses of laws by evasions and devices; which inconveniences in such times growing more general, do more instantly solicit for the amendment of laws to restrain and repress them. Your Majesty's reign having been blest from the Highest with inward peace, and falling into an age, wherein, if science be increased, conscience is rather decayed; and if mens wits be great, their wills are more great; and wherein also laws are multiplied in number, and slackened in vigour and execution; it was not possible but that not only suits in law should multiply and increase, whereof always a great part are unjust, but also that all the indirect and sinister courses and practises to abuse law and justice should have been much attempted, and put in use, which no doubt had bred great enormities, had they not, by the royal policy of your Majesty, by the censure and foresight of your Council-table and Star-chamber, and by the gravity and integrity of your benches been repressed and restrained: for it may be truly observed, that, as concerning frauds in contracts, bargains, and assurances, and abuses of laws by delays, covins, vexations, and corruptions in informers, jurors, ministers of justice, and the like, there have been sundry excellent statutes made in your Majesty's time, more in number, and more politic in provision, than in any of your predecessors times. But I am an unworthy witness to your Majesty of an higher intention and project, both by that which was published by your chancellor in full parliament from your royal mouth, in the five and thirtieth of your happy reign: and much more by that which I have been vouchsafed to understand from your Ma |