A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

LAW.

Law, is an Art of well-ordering a Civil So∣ciety.* 1.1

Our Common Laws are aptly and properly cal∣led Leges Angliae the Laws of England, because they are appropriated to this Kingdom of England as most apt and sit for the Government thereof, and have no dependance upon any forrein Law whatsoever, no not upon the Civil or Canon Law other then in Cases allowed by the Laws of Eng∣land. Cook's 2 part of Instit. c. ••.

The Common Law of England is a Law used time out of mind, or by prescription throughout the Realm.

The Law of nature is that which God at the time of creation of the nature of man, infused into his heart for his perservation and direction, and this is lex aeterna; this was 2000 years before* 1.2 any Law written, and before any Judiciall or Municipall Laws. Iura naturalia sunt immuta∣bilia this Law is indelibilis & immutabilis, Cook Calvins Case.

The Law of England is grounded upon six prin∣cipall Points:

• 1. The Law of Reason.
• 2. The Law of God.
• 3. On divers generall Customes of this Realm.
• ...

• 4. On divers Principles and Maximes.
• 5. On divers particular Customes.
• 6. On divers Statutes made in Parliaments.

The Antient and excellent Laws of Aengland* 1.3 are the Birth-right, and the most antient and best inheritance that the Subjects of this Realm have, for by them he enjoyeth not only his Inheritance and goods in peace and quietness, but his life, and his most dear Countrey in safety: sometime it is called Right; sometime Common Right, and some∣time Communis Iustitia.

Our Laws are the same which the Norman Conqueror found in this Realm of England. The Laws that William the Conqueror sware to* 1.4 observe, were, Bonae & approbatae antiquae regni leges.

The Law of England respects the effects and substance of the matter, and not the very niceity of form and circumstance, Qui haeret in litera, he∣ret* 1.5 in cortice, apices juris non sunt jura: Nihil quod est cortra rationem, est licitum: For Reason is the life of the Law, nay, the Common Law it self is nothing else but Reason, which is to be under∣stood of an artificiall perfection of reason gotten by long study, observation, and experience, and not of every mans naturall reason: For nemo na∣s••itur* 1.6 artifex. This legall reason is summa ratio. And therefore, if all the reason that is dispersed into so many severall heads were united into one, yet could he not make such a Law as the Law of England is, because by many successions of Ages it hath been fined and refined, by an infinite number of grave and learned men, and by long experience grown to such a perfection for the Government of this Realm, as the old Rule may justly be veri∣fied of it, Neminem oportet esse sapientiorem le∣gibus. No man (out of his own private reason)

ought to be wiser then the Law, which is the per∣fection of Reason.

Quaeritur, ut crescunt tot magna volumin•• legis? In promptu causa est, crescit in orbe dolus.

All Books written in the Law are either Histori∣call,* 1.7 as the Year-Books of the Common Law, or explanatory, as M^r Stamford his Treatise of the Prerogative, or Miscellan••all, as the Abridge∣ments of the Common Law, or Monologicall, be∣ing of one certain subject, as M^r Stamford his Book intituled the Pleas of the Crown, Lamberds Justice of Peace. One of the Books of the Law is called Fleta, because the Authour wrote it in the Fleet, and the Fleet took the name of the River running by it, called the Fleet. Cook's Preface to 10 Rep. See M^r Seld. ad Fled. Dissect.

Notes

• * 1.1

  Bracton ••aith, that Lex est sanctio justa, jubens honesta, & prohibens contraria: so as every Law must have three qualities. 1. It must be justa, 2. Jubens honesta, 3. Prohibens contraria.
• * 1.2

  Neminem oportet esse sapi∣entiorem legibus, ubi lex non distinguit, nec nos distinguere debemus. Lex plus laudatur quando ratione probatur.
• * 1.3

  Cook pre∣face to the 6 Rep. and on Lit. l. 2. c. 12. sect. 213.
• * 1.4

  Cook pre∣face to the 8 Rep.
• * 1.5

  Cook on L••••tieton.
• * 1.6

  Cook on Lit. l. 2. c. 9. sect. 138.
• * 1.7

  See in Ful∣becks paral∣lels, 3 chap. a censure of the Writers of the Law.