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to keep all upright and stable; but I have seen; repealed; for if the repeal be doubtful, it must be little in this kind, either in our law or other laws, so propounded to the parliament. that satisfieth me. The naked rule or maxim 2. The next is, to repeal all statutes which are doth not the effect: It must be made useful by sleeping and not of use, but yet snaring and in good differences, ampliations, and limitations, force: in some of those it will perhaps be requiwarranted by good authorities; and this not by site to substitute some more reasonable law, inraising up of quotations and references, but by stead of them, agreeable to the time; in others a discourse and deducement in a just tractate. In simple repeal may suffice. this I have travelled myself, at the first more 3. The third, that the grievousness of the pecursorily, since with more diligence, and will go nalty in many statutes be mitigated, though the on with it, if God and your majesty will give me ordinance stand. leave. And I do assure your majesty, I am in 4. The last is, the reducing of concurrent stagood hope, that when Sir Edward Coke's Re- tutes, heaped one upon another, to one clear and ports, and my rules and decisions shall come to uniform law. Towards this there hath been alposterity, there will be, whatsoever is now ready, upon my motion, and your majesty's dithought, question, who was the greater lawyer ? rection, a great deal of good pains taken; my For the books of the terms of the law, there is a Lord Hobart, myself, Serjeant Finch, Mr. Hepoor one, but I wish a diligent one, wherein neage Finch, Mr. Noye, Mr. Hackwell, and should be comprised not only the exposition of others, whose labours being of a great bulk, it is the terms of law, but of the words of all ancient not fit now to trouble your majesty with any records and precedents.
further particularity therein; only by this you For the abridgments, I could wish, if it were may perceive the work is already advanced : but possible, that none might use them, but such because this part of the work, which concerneth as had read the course first, that they might the statute laws, must of necessity come to parserve for repertories to learned lawyers, and not liament, and the Houses will best like that which to make a lawyer in haste: but since that cannot themselves guide, and the persons that thembe, I wish there were a good abridgment com- selves employ, the way were to imitate the preceposed of the two that are extant, and in better dent of the commissioners for the canon laws in order. So much for the common law.
27 Hen. VIII., and 4 Edw. VI., and the commis
sioners 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.
sioners named by both Houses; but not with a 1. The first, to discharge the books of those precedent power to conclude, but only to prestatutes, where the case, by alteration of time, is pare and propound to parliament. vanished; as Lombards Jews, Gauls half-pence, This is the best way, I conceive, to accom&c. Those may nevertheless remain in the li- plish this excellent work, of honour to your braries for antiquities, but no reprinting of them. majesty's times, and of good to all times; which "The like of statutes long since expired and clearly I submit to your majesty's better judgment.
AN OFFER TO KING JAMES
OF A DIGEST TO BE MADE
OF THE LAWS OF ENGLAND.
Most EXCELLENT SOVEREIGN:
care and piety of a father is not in him complete. AMONGST the degrees and acts of sovereign, or so, kings, if they make a portion of an age happy rather heroical honour, the first or second, is the by their good government, yet, if they do not person and merit of a lawgiver. Princes that make testaments, as God Almighty doth, whereby govern well, are fathers of the people; but, if a a perpetuity of good may descend to their country, father breed his son well, or allow him well while they are but mortal and transitory benefactors. he liveth, but leave him nothing at his death, Domitian, a few days before he died, dreamed whereby both he and his children, and his that a golden head did rise upon the nape of his children's children, may be the better, surely the neck: which was truly performed in the golden VOL. II.-30
age that followed his times for five successions. I to the Hebrews, because he was the scribe But, kings, by giving their subjects good laws, of God himself, is fitter to be named for honour's may, if they will, in their own time, join and graft sake to other lawgivers, than to be numbered or this golden head upon their own necks after their ranked amongst them. Minos, Lycurgus, and death. Nay, they may make Nabuchodonozor's Solon, are examples for themes of grammar schoimage of monarchy golden from head to foot. lars. For ancient personages and characters, And, if any of the meaner sort of politics, that are now-a-days, use to wax children again; though sighted only to see the worst of things, think, that parable of Pindarus be true, the best thing is that laws are but cobwebs, and that good princes water: for common and trivial things are many will do well without them, and bad will not stand times the best, and rather despised upon pride, much upon them; the discourse is neither good because they are vulgar, than upon cause or use. nor wise. For certain it is, that good laws are certain it is, that the laws of those three lawsome bridle to bad princes, and as a very wall givers had great prerogatives. The first, of fame, about government. And, if tyrants sometimes because they were the pattern amongst the Gremake a breach into them, yet they mollify even cians: the second of lasting, for they continued tyranny itself, as Solon's laws did the tyranny of longest without alteration : the third, of a spirit of Pisistratus : and then commonly they get up reviver, to be often oppressed, and often restored. again, upon the first advantage of better times. Amongst the seven kings of Rome four were Other means to perpetuate the memory and merits lawgivers: for it is most true, that a discourser of sovereign princes are inferior to this. Build- of Italy saith ; "there was never state so well ings of temples, tombs, palaces, theatres, and the swaddled in the infancy, as the Rornan was by like, are honourable things, and look big upon the virtue of their first kings ; which was a prinposterity: but Constantine the Great gave the cipal cause of the wonderful growth of that state name well to those works, when he used to call in after-times." Trajan, that was a great builder, Parietaria, wall- The decemvirs' laws were laws upon laws, flower, because his name was upon so many not the original; for they grafted laws of Græcia walls: : so, if that be the matter, that a king would upon the Roman stock of laws and customs : but turn wall-flower, or pellitory of the wall, with such was their success, as the twelve tables cost he may. Adrian's vein was better, for his which they compiled were the main body of the mind was to wrestle a fall with time; and being laws which framed and wielded the great body a great progressor through all the Roman empire, of that estate. These lasted a long time, with whenever he found any decays of bridges, or some supplementals and the Pretorian edicts “in highways, or cuts of rivers and sewers, or walls, albo;" which were, in respect of laws, as writing or banks, or the like, he gave substantial order for tables in respect of brass; the one to be put in their repair with the better. He gave, also, mul- and out, as the other is permanent. Lucius Cortitudes of charters, and liberties for the comfort of nelius Sylla reformed the laws of Rome : for that corporations and companies in decay: so that his man had three singularities, which never tyrant bounty did strive with the ruins of time. But had but he; that he was a lawgiver, that he took yet this, though it were an excellent disposition, part with the nobility, and that he turned private went but in effect to the cases and shells of a com- man, not upon fear, but upon confidence. monwealth. It was nothing to virtue or vice. A Cæsar long after desired to imitate him only in bad man might indifferently take the benefit and the first, for otherwise he relied upon new men; ease of his ways and bridges, as well as a good; and for resigning his power Seneca describeth him and bad people might purchase good charters. right; “Cæsar gladium cito condidit, nunquam Surely the better works of perpetuity in princes posuit,” “Cæsar soon sheathed his sword, but are those that wash the inside of the cup; such as never put it off.” And himself took it upon him, are foundations of colleges, and lectures for learn- saying in scorn of Sylla's resignation ; “Sylla ing and education of youth; likewise foundations nescivit literas, dictare non potuit,” “Sylla knew and institutions of orders and fraternities, for no letters, he could not dictate.” But for the part nobleness, enterprise, and obedience, and the of a lawgiver, Cicero giveth him the attribute ; like. But yet these also are but like plantations “Cæsar, si ab eo quæreretur, quid egisset in toga; of orchards and gardens, in plots and spots of leges se respondisset multas et præclaras tuground here and there; they do not till over the lisse;" “If you had asked Cæsar what he did whole kingdom, and make it fruitful, as doth the in the gown, he would have answered, that he establishing of good laws and ordinances; which made many excellent laws.” His nephew Aumakes a whole nation to be as a well-ordered gustus did tread the same steps, but with deeper college or foundation.
print, because of his long reign in peace; whereof This kind of work, in the memory of times, is one of the poets of his time saith, rare enough to show it excellent: and yet, not so “Pace data terris, animum ad civilia vertit rare, as to make it suspected for impossible, Jura suum ; legesque tulit justissimus auctor.' inconvenient, or unsafe. Moses, that gave laws From that time there was such a race of wit and authority, between the commentaries and de- my opinion of them without partiality either to my cisions of the lawyers, and the edicts of the em- profession or country, for the matter and nature of perors, as both law and lawyers, were out of them, I hold them wise, just, and moderate laws : breath. Whereupon, Justinian in the end recom- they give to God, they give to Cæsar, they give to piled both, and made a body of laws such as the subject, what appertaineth. It is true they are might be wielded, which himself calleth glori- as mixed as our language; compounded of British, ously, and yet not above truth, the edifice or Roman, Saxon, Danish, Norman customs: and, structure of a sacred temple of justice, built in- surely, as our language is thereby so much the deed out of the former ruins of books, as materials, richer, so our laws are likewise by that mixture and some novel constitutions of his own. the more complete.
In Athens, they had sexviri, as Æschines ob- Neither doth this attribute less to them, than serveth, which were standing commissioners, who those that would have them to have stood out the did watch to discern what laws waxed improper same in all mutations. For no tree is so good first for the times, and what new law did in any branch set, as by transplanting and grafting. I remember cross a former law, and so "ex officio” propound- what happened to Callisthenes, that followed ed their repeal.
Alexander's court, and was grown into some disKing 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
Lewis XI. had it in his mind, though he per- presently did with such quickness, that Alexander formed it not, to have made one constant law of said, That malice made him eloquent then, as the France, extracted out of the civil Roman law, and theme had done before. I shall not fall into either the customs of provinces, which are various, and of these extremes, in this subject of the laws of the king's edicts, which with the French are sta- England; I have commended them before for the tutes. Surely he might have done well, if, like matter, but surely they ask much amendment for as he brought the crown, as he said himself, from the form; which to reduce and perfect, I hold to Page, so he had brought his people from Lackey; be one of the greatest dowries that can be conferred not to run up and down for their laws to the civil upon this kingdom: which work, for the excellaw, and the ordinances, and the customs, and the lency, as it is worthy your majesty's act and times, discretions of courts, and discourses of philoso- so it hath some circumstance of propriety agreeable phers, as they use to do.
to your person. God hath blessed your majesty King Henry VIII., in the twenty-seventh year with posterity, and I am not of opinion that kings of his reign, was authorized by parliament to no- that are barren are fittest to supply perpetuity minate thirty-two commissioners, part ecclesiasti- of generations by perpetuity of noble acts; but, cal, and part temporal, to purge the canon law, contrariwise, that they that leave posterity are the and to make it agreeable to the law of God, and more interested in the care of future times; that the law of the land; but it took not effect: for the as well their progeny, as their people, may partiacts of that king were commonly rather proffers cipate of their merit. and fames, than either well grounded, or well Your majesty is a great master in justice and jupursued: but, I doubt, I err in producing so many dicature, and it were pity the fruit of that your virexamples. For, as Cicero said to Cæsar, so I tue should not be transmitted to the ages to come. may say to your majesty,“ Nil vulgare te dignum Your majesty also reigneth in learned times, the videri possit. Though, indeed, this, well under- more, no doubt, in regard of your own perfection stood, is far from vulgar: for that the laws of the in learning, and your patronage thereof. And it most kingdoms and states have been like buildings hath been the mishap of works of this nature, that of many pieces, and patched up from time to time the less learned time hath, sometimes, wrought according to occasions, without frame or model. upon the more learned, which now will not be so.
Now for the laws of England, if I shall speak. As for myself, the law was my profession, to which I am a debtor: some little helps, I have of pains in the story of England, and in compiling a other arts, which may give form to matter : and I method and digest of your laws, so have I perhave now, by God's merciful chastisement, and formed the first, which resteth but upon myself, by his special providence, time and leisure to put in some part: and I do in all humbleness renew my talent, or half talent, or what it is, to such the offer of this latter, which will require help and exchanges as may perhaps exceed the interest of assistance, to your majesty, if it shall stand an active life. Therefore, as in the beginning of with your good pleasure to employ my service my troubles I made offer to your majesty to take therein.
CERTIFICATE TO HIS MAJESTY,
TOUCHING THE PROJECTS OF
SIR STEPHEN PROCTOR RELATING TO THE PENAL LAWS.
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 remedy. time, further matter for your majesty's information This remedy hath been sought by divers stafor so much as I shall conceive to be fit or worthy tutes, as principally by a statute in 18, and the consideration.
another of 31, of the late queen of happy memory. For that part, therefore, of these projects which But I am of opinion, that the appointing of an concerneth penal laws, I do find the purpose and officer proper for that purpose, will do more good scope to be, not to press a greater rigour or se than twenty statutes, and will do that good effectverity in the execution of penal laws; but to ually, which these statutes aim at intentionally. repress the abuses in common informers, and And this I do allow of the better, because it is some clerks and under-ministers, that for common none of those new superintendencies, which I see gain partake with them : for if it had tended to many times offered upon pretence of reformation, as if judges did not their duty, or ancient and if one tradesman may But when it shall be sworn officers did not their duty, and the like: presume to break the the care and cogitation but it is only to set a custos or watchnian, neither law, and another not, he of one man to overlook over judges nor clerks, but only over a kind of will be soon richer than informers, these things people that cannot be sufficiently watched or over- his fellows. As, for ex- are easily discovered : looked, and that is, the common promoters or in ample, if one draper for let him but look who formers: the very awe and noise whereof will do may use tenters, be- they be that the informuch good, and the practice much more. cause he is in fee with mer calls in question,
I will, therefore, set down first, what is the an informer, and others and hearken who are of abuse or inconvenience, and then what is the not, he will soon out the same trade in the remedy which may be expected from the industry strip the good trades. same place and are of this officer. And, I will divide it into two man that keeps the law. spared, and it will be parts, the one, for that, that may concern the ease And, if it be thought easy to trace a bargain. of your people, for with that will I crave leave to strange that any man In this case, having begin, as knowing it to be principal in your ma- should seek his peace discovered the abuse, jesty's intention, and the other for that that may by one informer, when he ought to inform the concern your majesty's benefit.
he lieth open to all, the barons of the exche.
experience is otherwise: quer, and the king's Concerning the ease of his majesty's subjects, for one informer will learned counsel, that by
polled and vexed by common informers. bear with the friend of the Star Chamber, or The abuses or inconve- The remedies by the in- like measures.
another, looking for the otherwise, such taxers
of the king's subjects niences. dustry of the officer.
And, besides, they may be punished. 1. An informer ex- 1. The officer by his have devices to get prihibits an information, diligence finding this ority of information, and and in that one informa- case, is to inform the to put in an information tion he will put a hun- court thereof, who there- de bene esse,” to predred several subjects of upon may grant good vent others, and to prothis information. Every costs against the infor- tect their pensioners. one shall take out co- mer, to every of the sub- And if it be said this pies, and every one shall jects vexed : and withal is a pillory matter to put in his several an- not suffer the same in the informer, and thereswer. This will cost former to revive his in- fore he will not attempt perhaps hundred formation against any it; although therein the marks: that done, no of them; and, lastly, statute is a little doubtfurther proceeding. But fine him, as for a mis- ful: yet if hanging will the clerks have their demeanor and abuse of not keep thieves from fees, and the informer justice : and by that stealing, it is not pillory hath his dividend for time a few of such ex- will keep informers bringing the water to amples be made, they from polling. the mill. will be soon weary of
And, herein, Sir SteIt is to be noted, that that practice.
phen addeth a notable this vexation is not met
circumstance: that they with by any statute.
will peruse a trade, as For it is no composition,
of brewers or victualbut a discontinuance;
lers, and if any stand and in that case there is
out, and will not be in no penalty, but costs :
fee, they will find and the poor subject
means to have a dozen will never sue for his
informations come upon costs, lest it awake the
him at once. informer to revive his
3. The subject is often 3. The officer keepinformation, and so it
for the same offence ing a book of all the inescapeth clearly.
vexed by several infor- formations put in, with 2. Informers receive 2. This is an abuse mations: sometimes the a brief note of the matpensions of divers per- that appeareth not by oneinformernotknowing ter, may be made acsons to forbear them. any proceeding in court, of the other; and often quainted with all inforAnd this is commonly because it is before suit by confederacy, to weary mations to come in: of principal offenders, commenced, and there the party with charge: and if he find a preceand of the wealthiest fore requireth a particu- upon every of which dent for the same cause, sort of tradesmen. For lar inquiry.
goeth process, and of he may inform some of