ty, and likewise of the fafety, and convenience of this work: and then to go to the main; that is to fay, to fhew how the work is to be done: which incidently alfo will beft demonftrate, that it is no vaft nor fpeculative thing, but real and feasible. Callisthenes, that followed Alexander's court, and was grown in fome difpleasure with him, because he could not well brook the Perfian adoration; at a fupper (which with the Grecians was ever a great part talk,) was defired, because he was an eloquent man, to fpeak of fome theme, which he did; and chofe for his theme, the praise of the Macedonian nation; which though it were but a filling thing to praife men to their faces, yet he did it with fuch advantage of truth, and avoidance of flattery, and with fuch life, as the hearers were fo ravish'd with it, that they plucked the roses off from their garlands, and threw them upon him, as the manner of applaufes then was: Alexander was not pleafed with it, and by way of discountenance faid, It was eafy to be a good orator, in a pleafing theme. But (faith he to Callifthenes,) turn your style, and tell us now of our faults, that we may have the profit, and not you only the praife: which he prefently did with fuch a force, and fo piquantly, that Alexander faid, The goodness of his theme had made him eloquent before; but now it was the malice of his heart, that had infpired him.

1. SIR, I fhall not fall into either of thofe two extremes, concerning the laws of England; they commend themselves beft to them that understand them; and your Majefty's chief Juftice of your bench hath in his writings magnified them not without caufe: certainly they are wife, they are juft, and moderate laws; they give to God, they give to Caefar, they give to the fubjects, that which appertaineth. It is true, they are as mixt as our language, compounded of British, Roman, Saxon, Danish, Norman customs. And as our language is fo much the richer, fo the laws are the more compleat: neither does this attribute lefs to them, than those that would have them to have stood out the fame in all mutations; for no tree is fo good first fet, as by tranfplanting.

2. As for the fecond extreme, I have nothing to do with it, by way of taxing the laws. I fpeak only by way of perfecting them, which is easiest in the best things; for that which is far amifs, hardly receiveth amendment; but that which hath already, to that more may be given. Befides, what I fhall propound is not to the matter of the laws, but to the manner of their registry, expreffion, and tradition: fo that it giveth them rather light than any new nature. This being fo, for the dignity of the work I know scarcely where to find the like: for furely that scale, and those degrees of sovereign honour, are true and rightly marfhalled. First, the founders of states; then the law-givers; then the deliverers and faviours after long calamities; then the fathers of their countries, which are juft and prudent princes; and laftly, conquerors, which honour is not to be received amongst the rest, except it be, where there is an addition of more country and territory to a better government, than that was of the conquered. Of these, in my judgment, your Majefty may with more truth than flattery be intitled to the first, because of your uniting of Britain and planting Ireland; both which favour of the founder. That which I now propound to you, may adopt you alfo into the second: law-givers have been called principes perpetui; becaufe, as Bishop Gardiner faid in a bad fenfe, that he would be bishop an hundred years after his death, in refpect of the long leafes he made: fo lawgivers are still Kings and Rulers after their decease, in their laws. But this work, fhining fo in it felf, needs no taper. For the fafety and convenience

thereof.

thereof, it is good to confider, and to answer those objections or fcruples which may arife, or be made against this work.

Obj. 1. THAT it is a thing needlefs; and that the law, as it now is, is in good eftate, comparable to any foreign law; and that it is not poffible for the wit of man, in refpect of the frailty thereof, to provide against the incertainties and evasions, or omiffions of law.

Refp. For the comparison with foreign laws, it is in vain to speak of it; for men will never agree about it. Our lawyers will maintain for our municipal laws; civilians, fcholars, travellers, will be of the other opinion.

BUT certain it is, that our laws, as they now ftand, are fubject to great incertainties, and variety of opinion, delays and evafions: whereof enfueth, I. THAT the multiplicity and length of fuits is great.

2. THAT the contentious perfon is armed, and the honest subject wearied and oppreffed.

3. THAT the judge is more abfolute; who, in doubtful cafes, hath a greater ftroke and liberty.

4. THAT the chancery courts are more filled, the remedy of law being often obfcure and doubtful.

5. THAT the ignorant lawyer throudeth his ignorance of law, in that, doubts are fo frequent and many.

6. THAT mens affurances of their lands and eftates by patents, deeds, wills, are often subject to queftion, and hollow; and many the like incon

veniencies.

It is a good rule and direction (for that all laws, fecundum magis & minus, do participate of incertainties,) that followeth. Mark, whether the doubts that arife are only in cafes not of ordinary experience, or, which happen every day: If in the first only, impute it to the frailty of man's forefight, that cannot reach by law to all cafes; but if in the latter, be affured there is a fault in the law. Of this I fay no more, but that (to give every man his due) had it not been for Sir Edward Coke's Reports, (which, though they may have errors, and fome peremptory and extrajudicial refolutions, more than are warranted; yet they contain infinite good decifions, and rulings over of cafes,) the law by this time had been almoft like a fhip without ballaft; for that the cafes of modern experience, are fled from those that are adjudged and ruled in former time. But the neceffity of this work is yet greater in the ftatute law. For firft, there are a number of enfnaring penal laws, which lie upon the subject; and if in bad times they should be awaked, and put in execution, would grind them to powder.

THERE is a learned civilian that expoundeth the curfe of the prophet; Pluet fuper eos laqueos, of a multitude of penal laws; which are worse than fhowers of hail or tempeft upon cattle, for they fall upon men.

THERE are fome penal laws fit to be retained, but their penalty too great; and it is ever a rule, that any over-great penalty, (befides the acerbity of it) deads the execution of the law.

THERE is a further inconvenience of penal laws, obfolete, and out of use; for that it brings a gangrene, neglect, and habit of difobedience upon other wholesome laws, that are fit to be continued in practice and execution; fo that our laws endure the torment of Mezentius:

The living die in the arms of the dead.

LASTLY, There is such an accumulation of statutes concerning one matter, and they fo cross and intricate, as the certainty of law is loft in the

heap; as your Majefty had experience laft day upon the point, Whether the incendiary of Newmarket fhould have the benefit of his clergy.

Obj. 2. THAT it is a great innovation; and innovations are dangerous beyond forefight.

Refp. ALL purgings and medicines, either in the civil or natural body, are innovations: fo as that argument is a common place againft all noble reformations. But the truth is, that this work ought not to be termed or held for any innovation in the fufpected fenfe. For those are the innovations which are quarrelled and spoken against, that concern the confciences, eftates, and fortunes of particular perfons: but this of general ordinance pricketh not particulars, but paffeth fine ftrepitu. Befides, it is on the favourable part; for it easeth, it preffeth not: and laftly, it is rather matter of order and explanation, than of alteration. Neither is this without precedent in former go

vernments.

THE Romans, by their Decemviri, did make their twelve tables; but that was indeed a new enacting or conftituting of laws, not a regiftring or recompiling; and they were made out of the laws of the Grecians, not out of their own customs.

IN Athens they had Sexviri, which were standing commiffioners to watch and difcern what laws waxed unproper for the time; and what new law did, in any branch, cross a former law, and fo, ex officio, propounded their repeals.

KING Lewis XI, of France, had it in his intention to have made one perfect and uniform law, out of the civil law Roman, and the provincial customs of France.

JUSTINIAN the Emperor, by commiffions directed to divers perfons learned in the laws, reduced the Roman laws from vaftnefs of volume, and a labyrinth of incertainties, unto that courfe of the civil law which is now in ufe. I find here at home of late years, that King Henry VIII, in the twenty seventh of his reign, was authorized by parliament to nominate thirty two commiffioners, part ecclefiaftical, part temporal, to purge the canon law, and to make it agreeable to the law of God, and the law of the realm; and the fame was revived in the fourth year of Edward VI, though neither took effect.

FOR the laws of Lycurgus, Solon, Minos, and others of ancient time, they are not the worse, because grammar scholars speak of them: But things too ancient wax children with us again.

EDGAR, the Saxon King, collected the laws of this kingdom, and gave them the strength of a faggot bound, which formerly were dispersed.

THE ftatutes of King Edward the first were fundamental. But, I doubt, I err, in producing fo many examples: for, as Cicero faith to Caefar, fo may I fay to your Majesty;

Nil vulgare te dignum videri poffit.

Obj. 3. In this purging of the courfe of the common laws and ftatutes, much good may be taken away.

Refp. In all purging, fome good humours may pass away; but that is largely recompenfed, by lightening the body of much bad.

Obj. 4. LABOUR were better bestowed, in bringing the common laws of England to a text law, as the ftatutes are, and fetting both of them down in method and by titles.

Refp.

Refp. IT is too long a business to debate, whether lex fcripta, aut non fcripta, a text law, or customs well regiftred, with received and approved grounds and maxims, and acts and refolutions judicial from time to time duly entered and reported, be the better form of declaring and authorizing laws. It was the principal reafon or oracle of Lycurgus, that none of his laws fhould be written. Customs are laws written in living tables, and fome traditions the church doth not difauthorize. In all fciences they are the foundest, that keep close to particulars; and fure I am, there are more doubts that rise upon our ftatutes, which are a text law, than upon the common law, which is no text law. But, howfoever that queftion be determined, I dare not advise to caft the law into a new mould. The work which I propound tendeth to pruning and grafting the law, and not to plowing up and planting it again, for fuch a remove I fhould hold indeed for a perilous innovation.

Obj. 5. Ir will turn the judges, counsellors of law, and students of law to school again, and make them to seek what they shall hold and advise for law; and it will impose a new charge upon all lawyers to furnish themselves with new books of law.

Refp. For the former of those, touching the new labour, it is true it would follow, if the law were new moulded into a text law; for then men must be new to begin, and that is one of the reafons for which I difallow that course.

BUT in the way that I fhall now propound, the entire body and substance of law fhall remain, only discharged of idle and unprofitable or hurtful matand illuftrated by order and other helps, towards the better understanding of it, and judgment thereupon.

ter;

FOR the later, touching the new charge, it is not worth the fpeaking of, in a matter of fo high importance; it might have been used of the new tranflation of the bible, and fuch like works. Books must follow fciences, and not sciences books.

The Work it felf; and the way to reduce and recompile the
LAWS of ENGLAND.

HIS work is to be done (to use fome few words which is the language
of action and effect) in this manner.

THI

Ir confifteth of two parts; the digeft or recompiling of the common laws, and that of the statutes.

In the first of these, three things are to be done.

1. THE compiling of a book, de antiquitatibus juris.

2. THE reducing or perfecting of the courfe or corps of the common

laws.

3. THE compofing of certain introductive and auxiliary books touching the study of the laws.

FOR the firft of thefe, all ancient records in your Tower, or elsewhere, containing acts of parliament, letters patents, commiffions, and judgments, and the like, are to be searched, perused, 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 fet down and registred, rarely in haec verba ; but fummed with judgment, not omitVOL. IV. B ting

ting any material part; these are to be used for reverend precedents, but not for binding authorities.

For the fecond, which is the main, there is to be made a perfect courfe of the law in ferie temporis, or year-books, (as we call them) from Edward the first to this day in the compiling of this courfe of law, or year-books, the points following are to be obferved.

FIRST, All cafes which are at this day clearly no law, but conftantly ruled to the contrary, are to be left out; they do but fill the volumes, and feafon the wits of students in a contrary fenfe of law. And fo likewise all cafes, wherein that is folemnly and long debated, whereof there is now no question at all, are to be entered as judgments only, and refolutions, but without the arguments, which are now become but frivolous: yet for the obfervation of the deeper fort of lawyers, that they may fee how the law hath altered, out of which they may pick fometimes good ufe, I do advise, that upon the firft in time of thofe obfolete cafes, there were a memorandum fet, that at that time the law was thus taken, until fuch a time, &c.

SECONDLY, Homonymiae, (as Juftinian calleth them) that is, cafes merely of iteration and repetition, are to be purged away; and the cafes of identity, which are best reported and argued, to be retained instead of the rest; the judgments nevertheless to be fet down, every one in time as they are, but with a quotation or reference to the cafe where the point is argued at large; but if the cafe confift part of repetition, part of new matter, the repetition is only to be omitted.

THIRDLY, As to the Antinomiae, cafes judged to the contrary, it were too great a trust to refer to the judgment of the composers of this work, to decide the law either way, except there be a current ftream of judgments of later times; and then I reckon the contrary cafes amongft cafes obfolete, of which I have spoken before: nevertheless this diligence should be used, that fuch cafes of contradiction be fpecially noted and collected, to the end those doubts, that have been fo long militant, may either by affembling 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 difliked. Nil habeat forum ex fcenâ.

FOURTHLY, All idle queries, which are but feminaries of doubts, and incertainties, are to be left out and omitted, and no queries fet down, but of great doubts well debated and left undecided for difficulty; but no doubting or upftarting queries, which though they be touched in argument for explanation, yet were better to die than to be put into the books.

LASTLY, Cafes reported with too great prolixity, fhould 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 infenfible reporting, which many times confound the ftudents, 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 alfo to be rectified the courfe being thus compiled, then it refteth but for your Majefty to appoint fome grave and found lawyers, with fome honourable ftipend, to be reporters for the time to come, and then this is fettled for all times.

*

*This Conftitution of Reporters I obtained of the King, after I was Chancellor; and there are two appointed with a 100 1. à year a-piece ftipend.

FOR