Of the advancement and proficience of learning; or, The partitions of sciences· Nine books. Written in Latin by the most eminent, illustrious, and famous Lord Francis Bacon Baron of Verulam, Vicount St. Alban, Councellor of Estate, and Lord Chancellor of England. Interpreted by Gilbert Watts.

CAP. III. The Partitions of the Art of Empire or Goverement are omitted; on∣ly accesse is made to two DEFICIENTS. I The knowledge of enlarging the Bounds of Empire. II. And the knowledge of universall Iustice; or of the Fountaines of Law.

I. I Come now to the Art of Empire, or the know∣ledge of Civile Goverment; under which House∣hold Goverment is comprehended, as a Family is under a Citty.

In this part, as I said before, I have commanded my selfe silence: yet notwithstanding I may not so disable my selfe; but that I could discourse of this part also, perchance not impertinently, nor unprofita∣bly; as one practised by long experience; and by your Maje∣sties most indulgent favours, and no merit of mine owne, raised by the degrees of office and honours, to the highest Dignity in the state; and have borne that office for foure years; and which is more, have bin accustomed to Your Ma∣jesties commands and conferences, for the continued space of eighteene years togither, (which even of the dullest mould might fashion and produce a States-man) who have spent much time amongst other knowledges, in Histories and lawes. All which I report to posterity, not out of any arro∣gant

ostentation; but because I presume it makes something to the honour and Dignity of learning; that a man borne for letters more than any thing else, and forcibly carried away, I know not by what fate, against the bent of his own Genius, to a Civile active course of life, should yet be advanc't to so high and honourable charges in the state, and that under so wise a King.

But if my times of lea∣sure shall bring forth hereafter any thing touching the wis∣dome of Government, and state matters, it will be perchance an Abortive, or an after-Birth. In the mean space now that all sciences are distributed and ranged, as it were, into their true Formes; least such an eminent place as this should re∣maine empty, I have judg'd it fit to note as DEFICIENTS two Portions only of Civile knowledge, which pertaine, not to the Secrets of Empire, but are of a more open and publique nature; and, according to our custome, to propound exam∣ples thereof. Seeing the Arts of Government, comprehend three sorts of Politique Duties; First that a Kingdome or State be conserved; Secondly that it may become happy and flourishing, Thirdly that it may be amplified and the bounds thereof propagated and extended. Of these duties the two first are for most part by many, excellently well handled; but the third is past over in silence; wherefore we will set this downe in the number of Deficients, and according to our manner propose examples thereof; calling this part of Ci∣vile knowledge Consulem Paludatum, or a knowledge of the enlarging the Bounds of Empire.

EXAMPLE OF A SUMMARY TREATISE touching the enlarging of the Bounds of EMPIRE.✿ 1.1

THe speech of Themistocles, taken to himselfe, was in∣deed somewhat uncivile and haughty; but if it had been applied to others and at large, certainly it may seem to comprehend in it a wise observation and a grave

censure. Desired at a Feast to touch a lute,* 1.2 he said He could not Fidle, but yet he could make a small Towne a great Citty: These words drawne to a Politique sense doe excellently expresse and distinguish two differing Abilities, in those that deale in businesse of Estate. For if a true survey be taken of all Counsilors and States-men that ever were, and others promoted to publique charge, there will be found (though very rarely) those which can make a small State great, and yet cannot fidle, as on the other side there will be found a great many, that are very cunning upon the Citterne or Lute, (that is in Court-Trifles) but yet are so farre from being able to make a small State, Great; as their guift lies another way, to bring a Great and Flourishing Estate to ruine and decay. And cer∣tainly those degenerate Arts and shifts, whereby many Counsilors and Governors gaine both favour with their Maisters, and estimation with the vulgar, deserve no bet∣ter name than Fidling; being things rather pleasing for the time, and gracefull to the professors themselves; than tend∣ing to the weale and advancement of the State, which they serve. There are also (no doubt) Counsilors and Governors, not to be despised, which may be held sufficient men, and equall to their charge; able to manage Affaires, and to keepe them from precipicies and manifest inconveniences, which ne∣verthelesse are farre from the Ability to raise and amplify an Estate. But be the workmen what they may be, let us cast our eyes upon the worke, that is, what is the true greatnesse of Kingdomes and Estates, and by what means it may be obtained? An argument fit for great Princes to have perpetually in their hand, and diligently to meditate; to the end that nei∣ther by overmeasuring their Forces, they loose themselves in vaine and too difficile enterprises; nor on the other side undervaluing them, they descend to fearfull and pusillani∣mous Counsils. The Greatnesse of an Estate in Bulke and Ter∣ritory, doth fall under measure; the Greatnesse of Financies and Revenue doth fall under computation. The number of Citti∣zens and the Pole may be taken by Musters; and the multi∣tude and greatnesse of Cities and Townes, by Cardes and

Mapps. But yet there is not any thing amongst Civile Af∣faires, more subject to error, than a true and intrinseque valuation, concerning the Power and Forces of an Estate. The Kingdome of Heaven is compar'd not to an Acorne or Nut; but to a Grain of Mustard-seed, which is one of the least Graines, but hath in it a property and spirit hastily to get up and spread. So are there Kingdomes and States in compasse and territory very great, and yet not so apt to enlarge their Bounds or Com∣mand; and some on the other side that have but a small di∣mension of stemme, and yet apt to be the Foundations of of great Monarchies.

1 Walled Townes; stored Arcenalls and Armories, good∣ly Races of Horse, Chariots of warre, Elephants, Ordinance, Artillery, and the like; all this is but a sheep in a Lions skin, ex∣cept the Breed and Disposition of the people be stout & war-like. Nay number it selfe in Armies imports not much, where the people is of a faint & weak courage: for, as Virgil saith, It never troubles a Wolfe,* 1.3 how many the sheep be. The Army of the Persians in the Plaines of Arbela, was such a vast sea of people, as it did somewhat astonish the Commanders in Alex∣anders Armie; who came to him therefore, and wisht him to set upon them by Night,* 1.4 but he answered, I will not Pilfer the victory; and the Defeat by that courageous assurance was the more easie. When Tigranes the Armenian, being encamped upon a hill with an Armie of 400000 Men,* 1.5 dis∣covered the Army of the Romans being not above 14000 marching towards him, he made himselfe merry with it & said; yonder men are too many for an Ambassage, and too few for a Fight: but before the sunne set he found them enow to give him the chase with infinite slaughter. Many are the ex∣amples of the great odds between number & courage. First then a man may rightly make a judgement and set it downe for a sure and certaine truth, that the principall point of all other which respects the Greatnes of any Kingdome or State, is to have a RACE of Military men.* 1.6 And that is a more trite than true saying, That Money is the Sinewes of Warre; where the si∣newes of mens armes in base and effeminate people are fay∣ling:

for Solon said well to Croesus (when in ostentation hee shewed him his gold) Sir,* 1.7 if any other come that hath any bet∣ter Jron than you, he will be master of all this Gold. Therefore let any Prince or State think soberly of their Forces, except their Militia of Natives be of Good and Valiant Souldiers: and let Princes on the other side that have Subjects of stout and Martiall disposition, know their own strength, unlesse they be otherwise wanting to themselves. As for Mercena∣ry Forces (which is the help in this case where native forces fayle) all times are full of examples whereby it manifestly appeares; that whatsoever State or Prince doth rest upon them, he may spread his Feathers for a time beyond the compasse of his nest; but he will mew them soone after.

2 The blessing of Iudah and Issachar will never meet.* 1.8 That the same Tribe or Nation should be both the Lions whelp, and the Asse between Bardens; neither will it be that a people over∣laid with Taxes, should ever become Ʋaliant, and Martiall. It is true that Taxes levied by publique consent of the estate doe depresse and abate mens courage lesse; as a man may plainly see in the Tributes of the Low-coūtries, which they call Ex∣cizes; and in some degree in those contributions which they call Subsidies in England. For you must note that we speak now of the Heart and not of the Purse; so that altho the same Tribute conferr'd by consent or imposed by command, be all one to the purse, yet it works diversly upon the courage: Therefore set down this too as a Principle, That no People overcharg'd with Tribute is fit for Empire.

3 Let states and kingdomes that ayme at Greatnesse by all meanes take heed how the Nobility, and Grandies, and those which we call Gentle-men, multiply too fast; for that makes the common subject grow to be a Peasant and Base swaine driven out of heart, and in effect nothing else but the Noblemans Bond-slaves and Labourers. Even as you may see in Coppice wood, Jf you leave your studdles too thick, you shall never have cleane underwood, but shrubs and bushes: So in a countrey if the Nobility bee too many the Commons will be base and heartlesse, and you will bring it to that, that not

the hundredth Pole will be fit for an Helmet; especially as to the Infantery, which is the nerve of an Army; & so there will be great Population and litle strength. This which I speak off hath been in no Nation more cleerely confirm'd than in the examples of England and France, whereof Eng∣land, thoe farre inferior in Territory & Population, hath bin neverthelesse alwaies an overmatch in Armes; in regard the middle-people of England make good Souldiers, which the Peasants of France doe not.* 1.9 And herein the devise of HENRY THE VII KING OF ENGLAND (where∣of I have spoken largely in the History of his life) was pro∣found and admirable, in making Farmes and Houses of Husbandry of a standard; that is maintain'd with such a Proportion of land unto them, as may breed a subject to live in convenient plenty, and to keep the Plough in the hands of the Owners, or at least usu-fructuary, and not hirelings & Mercenaries; and thus a Countrey shall merit that Chara∣cter whereby Ʋirgil expresses ancient Jtaly,

* 1.10Terra potens Armis at{que} ubere Gleba.

Neither is that state which is almost peculiar to England, (and for any thing I know, hardly to be found any where else, except it be perhaps in Poland) to be passed over; J meane the state of Free-servants and Attendants upon No∣ble-men and Gentle-men; of which sort, even they of infe∣rior condition, doe no waies yeeld unto the Yeomanry, for Jnfantery. And therefore out of all question the Magnifi∣cence and that Hospitable splendor, the Household servants, and great Retinues of Noble-men and Gentle-men receiv'd into custome in England, doth much conduce unto Marti∣all Greatnesse: whereas on the other side, the close, reserved and contracted living of Noble-men, causeth a Penury of Military Forces.

4 By all means it is to be procured, that the Trunck of Ne∣buchadnezzars Tree of Monarchy, be great enough to beare the Branches and the Boughes; that is, that the number of Na∣turall Subjects to the Crowne or State, beare a sufficient proportion for the over-topping the stronger subjects. There∣fore

all States that are liberal of Naturalization towards strangers, are fit for the Greatnesse of Empire. For it is a vaine opinion to think that a handfull of people, can with the greatest courage and Policy in the world, keep and represse under the lawes of Empire, too large and spacious extent of Dominion; this may hold for a time, but it will faile sodainly. The Spartans were a spareing and nice People in point of Naturalization, whereby while they kept their compasse, they stood firme and assured; but when they began to spread and to enlarge their Dominion, and that their boughs, mul∣tiplied by strangers, were becomen too great for the stemme of the Spartans, they became a wind-fall upon the sodaine. Never any State was in this point so open to receive stran∣gers into their Body, as were the Romanes; therefore their Fortune seconded their wise institution, for they grew to the greatest Monarchy in the world. Their manner was to grant Naturalization (which they called Ius Civitatis) and to grant it in the highest degree; that is,* 1.11 not only Ius Com∣mercii, Ius Connubii, Ius Haereditatis; but also Ius Suffragii, and Ius Petitionis sive Honorum; and this not to singular persons alone, but likewise to whole families, yea to Citties, and sometimes to whole Nations. Adde to this, their custome of Plantation of Colonies, whereby the Romane Plants were removed into the soile of other Nations: and putting both constitutions togither, you will say, that it was not the Romans that spread upon the world; but it was the world that spread upon the Romanes; which was the securest way of Enlarging the Bounds of Empire. I have marvailed sometimes at Spaine, how they claspe and governe so large Dominions, with so few naturall Spaniards: but surely the whole compasse of Spaine, is a very great body of a Tree; being it containes farre more ample Territories, than Rome or Sparta at their first riseings. And besides, thoe the Spaniards have not had that useage to Naturalize liberaly; yet they have that which is next to it, that is, To imploy, almost indifferently, all Nati∣ons in their Militia of Ordinary souldiers, yea and sometimes they conferre their highest commands of warre, upon Cap∣taines

that are no naturall Spaniards: nay it seemes, not long agoe, they have begun to grow sensible of this want of Natives, and to seek a Remedy, as appears by the Prag∣maticall Sanction publisht this yeare.

5 Jt is most Certaine that sedentary and within-doore Me∣chanicall Arts; and Delicate Manufactures (that require rather the Finger, than the Arme,) have in their nature a contrariety to a Military Disposition. And generally all warlike People are a litle idle; and love danger better than travaile: neither must they be too much broken of it, if we will have their spirits preserv'd in vigor. Therefore it was great advantage in the ancient states of Sparta, Athens, Rome, and others, that they had the use, not of Free-men, but of Slaves, which com∣monly did rid those Manufactures: but the use of Slaves since the receiving of the Christian Law, is, in greatest part abolisht. That which comes neerest to this custome, is to leave those Arts chiefly to strangers, which for that purpose are to be allured, or at least the more easily to be received. The vulgar Natives should consist of three sorts of men; that is, of Tillers of Ground; Free-servants; and Handy-crafts∣men of strong and Manly Arts, as Smithes, Masons, Carpen∣ters, &c. not reckoning professed Souldiers.

6 But above all, for the Greatnesse of Empire, it imports most; that a Nation doe professe Armes as their glory, Princi∣pall study, and chiefest Honor. For the things which we formerly have spoken of, are but Habilitations towards Armes; and to what purpose is Habilitation without endea∣vour to produce it into Act?* 1.12 Romulus, after his death, (as they report or faigne) sent a present to the Romans, that a∣bove all they should intend Armes, and than they should prove the greatest Empire of the World. The whole Fa∣brique of the State of Sparta, was, industriously (thoe not so wisely) compos'd and built to that scope and end. The Persians and Macedonians had the same useage, but not so constant and lasting. The Britans, Galls, Germans, Goths, Saxons, Normans, for a flash of time gave themselves chiefly to Armes. The Turkes not a litle instigated thereto by their

Law, retaine the same discipline at this day, (thoe as it is now practised) with great declination of their Militia. Of Christian Europe they that retaine and professe it, are in ef∣fect only the Spaniards. But it is so liquid and manifest, that every man profiteth most, in that he most intendeth, that it needs not to be stood upon. It is enough to point at it; That no Nation which doth not professe Armes, and practise Military Arts, making it their principal study and occupation, may ever hope to have any notable greatnesse of Empire, fall into their mouthes: and on the other side, it is a most certaine Oracle of time, That those Nations that have continued long in the profession and study of Armes (as the Romanes & Turkes principally have done, for the propagation of Empire, work wonders. Nay those that have flourisht for the glory of Armes, but for the space only of one age; have commonly attain'd that Greatnesse of Domi∣nion, in that one age, which maintained them long after, when their profession and exercise of Armes hath growen to decay.

7 Incident to this Precept is; for a state to have such lawes and Customes which may readily reach forth unto them just occa∣sions, or at least pretences of taking Armes. For there is that ap∣prehension of Justice imprinted in the nature of men, that they enter not upon warres (whereof so many calamities doe ensue) but upon some, at the least specious grounds and Quarrells. The Turke hath at hand for cause of warre the Propagation of his law and sect; a quarrell that he may al∣waies command. The Romans thoe they estimed the ex∣tending of the Limits of their Empire, to be great honour to their Generals, when it was done; yet for that cause alone, to Propagate their bounds, they never undertook a warre. Therefore let a nation that pretends to Greatnesse, & aspires to Empire, have this condition, that they have a quick and lively sense of any wrongs either upon Borderers, Mer∣chants or publique Ministers; and that they sit not too long upon the first provocation. Againe let them be prest, and Active to send Aides and Succors to their Allies and confe∣derates; as it ever was with the Romans: in so much, as if

a hostile invasion were made upon a confederate, which also had leagues Defensive with other states, and the same implored their aides severally; the Romanes would ever be the formost; and leave it to no other to have the Honour of the Assistance. As for the warres which were anciently made for a kinde of conformity, or tacite correspondency of Estates, I doe not see upon what law they are grounded. Such were the warres undertaken by the Romanes, for the liberty of Grecia: such were those of the Lacedemonians and Athenians, to set up or pull downe Democracies and Oligarchies: such are the warres made sometimes by States and Princes, under pretence of protecting Forraine subjects, and freeing them from Tyranny and oppression, and the like. Let it suffice for the present point that it be conclu∣ded, That no Estate expect to be Great, that is not instantly a∣wake, upon any just occasion of Arming.

8 No body can be healthfull without exercise, neither Natu∣rall Body nor Politique: and certainly to a Kingdome or Estate a just and honourable warre is in place of a wholsome exercise. A Civile warre indeed, is like the heat of a Fever; but a Forraine is like the heat of Exercise, and serves to keep the body in health: for in a slothfull and drowsie Peace, both courages will effeminate, & Manners corrupt. But howsoever it be for the Happinesse of any Estate, without all question, for Great∣nesse, it maketh, to be still for the most part in Armes: and a veterane Army (thoe it be a chargeable Businesse) al∣waies on foot, is that which commonly gives the Law, or at least the Reputation amongst all neighbour states. This is notably to be seen in Spaine, which had in one part or o∣ther a veterane Army almost continually, now by the space of sixe-score years.

9 To be Master of the Sea, is an Abridgement of a Mo∣narchy,* 1.13 Cicero writing to Atticus of Pompeius his prepara∣tion against Caesar saith; Consilium Pompeii, plane Themistocle∣umest; putat enim, qui Mari potitur, eum Rerum potiri. And without doubt Pompey had tired out and broken Caesar, if upon a vaine confidence he had not left that way. We see

from many examples the great effects of Battailes by Sea. The Battaile of Actium decided the Empire of the world: the Battaile of Lepanto put a ring in the nose of the Turke: Certainly it hath often fallen out that Sea-fights have bin fi∣nall to the warre; but this is when Princes or States have set up their Rest upon those Battails. Thus much is without all doubt, that he that commands the Sea, is at great liberty; and may take as much and as litle of the warre as he will: whereas on the Contrary, those that be strongest by Land, are many times neverthelesse in great straights. But at this day and with us of Europe, the vantage of strength at Sea (which is indeed one of the principall Dowries of this Kingdome of Great Brittaine) is in the summe of Affaires of great import: both because most of the Kingdomes of Europe, are not meerely Inland, but girt with the Sea most part of their compasse, and be∣cause the Treasures and wealth of both Indies, seems in great part but an Accessarie to the command of the Seas.

10 The warres of latter Ages seem to be made in the darke, in respect of the Glory and Honor which reflected upon Military men from the warres in ancient times. We have now per∣chance, for Martiall encouragement some degrees and Or∣ders of Chivalry, which neverthelesse are conferred pro∣miscuously upon Souldiers, and no Souldiers; and some Pe∣degrees of Families perhaps upon Scutchions; and some publique Hospitals for emerited and maim'd Souldiers, and such like things. But in Ancient times, the Trophy ere∣cted upon the place of the victory; the Funerall Laudatives and stately Monuments for those that died in the warres; Civique Crownes and military Garlands awarded to parti∣cular persons, the stile of Emperor, which the Greatest Kings of the world after, borrowed from commanders in warre; the solemne Triumphs of the Generals upon their returne, after the warres were prosperously ended; the great Donatives and Largesses upon the disbanding of the Ar∣mies: these I say were matters so many and great, and of such glorious lustre and blaze in the eyes of the world, as were able to create a Fire in the most frozen breasts, and to

inflame them to warre. But above all, that of the Triumph a∣mongst the Romanes, was not a matter of meere Pompe, or some vaine spectacle or pageants; but one of the wisest and noblest institutions that ever was: for it contain'd in it three things, Honor and Glory to the Generalls; Riches to the Treasu∣ry out of the spoiles; and Donatives to the Army. But the Ho∣nors of Triumph perhaps were not fit for Monarchies, except it be in the person of the King himselfe, or of the Kings sonnes; as it came to passe in the times of the Roman Empe∣rors, who did impropriate the Honor of Triumph to them∣selves, and their sonnes; for such warres as they did atchieve in Person, and left only by way of indulgence, Garments and Triumphall Ensignes to the Generalls.

§ But to conclude these discourses, There is no man (as sacred Scripture testifies) that by care taking can adde a cubite to his stature,* 1.14 in his litle Modul of a Mans body; but in the great Frame of Kingdomes and Common-wealths, it is in the Power of Princes and estates, to adde Amplitude and Great∣nesse to their Kingdomes. For by introducing such ordinan∣ces, constitutions and customes, as we have now propoun∣ded, and others of like nature with these, they may sow Greatnesse to posterity and future Ages. But these Counsils are seldome taken into consideration by Princes; but the Matter is commonly left to fortune to take its chance.

§ And thus much for the points that for the present, have offered themselves to our consideration touching the En∣larging of the Limits of a State or Kingdome. But to what end is this contemplation, seeing of all Imperiall Soveraignties in this world, the Romane Monarchy (as it is believed) was to be the last? but that, being true to our own Designe, nor any where declining out of the way (in as much as, the Amplification of a Kingdome was, amongst the three Poli∣tique Duties, the third) we could not altogither passe it o∣ver untoucht. There remaines now another DEFICIENT of the two we have set downe, that is, of Vniversall Iustice, or the Fountaines of Law.

11 All they which have written of Lawes have hand∣led that Argument either as Philosophers, or as Lawyers, & none as statesmen. As for Philosophers they propound many things goodly for discourse, but remote from use. For the Lawyers they are mancipated and wholy devoted every one to the lawes of the state where they live, or to the Placits of the Emperial or Pontificial Lawes, and cannot use impartial and sincere judgement; but discourse as out of Gyves & Fet∣ters. Certainly this kinde of knowledge pertaines properly to Statesmen; who can best discerne what humane society is capeable of; what make for the weale of the publique; what naturall equity is; what the law of Nations, the cu∣stome of Countries, the divers and different formes of states and Republiques; and therefore are able to decerne & judge of Lawes, from the Principles, both of natural Equity and Policy. Wherefore the businesse in hand is, to have recourse unto, and make enquiry of the Fountaines of Justice, and of Publique utility, and in every part of Law to represent a kind of character and Jdea of that which is just; by which generall mark and direction he that shall intend his minde & studies that way, may try and examine the severall lawes of particular kingdomes and estates; and from thence endeavour an emen∣dation. Wherefore after our accustom'd manner we will, in one Title propound an example thereof.

EXAMPLE OF A TREATISE TOVCHING VNI∣versal Iustice, or the Fountaines of Law,✿ 1.15 in one Title, by way of APHORISME.

THE PROEM.

APHORISME. I.

In Civil society either Law or Power prevailes; for there is a Power which pretends Law, and some Law tast's rather of Might, then Right. Wherefore there is a threefold Fountaine of Injustice; Meere Power; Cunning Illaqueation under colour of Law; and the Harshnesse of Law it selfe.

APHORISME II.

The force and efficacy of Private Right is this. He that doth a wrong, by the Fact, receives Profit or Pleasure; by the Example, incurres Prejudice and Perill: others are not Partners with him in his Profit or Pleasure; but they take themselves interressed in the Example; and therefore easily combine and accord togither to secure themselves by Lawes, least Injuries by turnes ceize upon every particular. But if thorough the corrupt humour of the times, and the generality of guilt, it fall out, that to the greater number and the more Patent, danger is rather created then avoided, by such a Law; Faction disanuls that Law, which often comes to passe.

APHORISME III.

Private Right is under the Protection of Publique Law: for Lawes are for the People; Magistrates for Laws; & the au∣thority of Magistrates depends upon the Majesty of Empire, and the forme of Policy, & upon Lawes Fundamental: wherefore if this Part be sound & healthfull, Lawes will be to good purpose; if otherwise, there will be litle security in them.

APHORISME IV.

Yet notwithstanding, the end of Publique Law is not only to be a Guardian to Private Right, least that should any way be viola∣ted, or to represse Injuries: but it is extended also unto Religion, & Armes and Discipline, and Ornaments, & Wealth, & finally to all things which any way conduce unto the prosperous estate of a Common wealth.

APHORISME V.

For the End and Ayme at which Lawes should levell, and whereto they should direct their Decrees and Sanctions, is no o∣ther then this, That the People may live happily: This will be

brought to passe, if they be rightly train'd up in Piety and Reli∣gion; if they be Honest for Morall conversation; secur'd by Armes against forraine enimies; Munited by Lawes, against seditions, and private wrongs; Obedient to Government and Magistrates; Rich and Florishing in Forces and wealth: but the Jnstruments and sinewes of all Blessings are Lawes.

APHORISME. VI.

And this end the best Lawes attaine; but many Lawes misse this marke: for there is a great difference, and a wide distance in the comparative valure and virtue of Lawes; for some Lawes are excellent; some of a middle temper; others altogither corrupt. We will exhibite according to the measure of our judgement, some certaine Lawes (as it were) of Lawes, whereby information may be taken, what in all Lawes is well or ill set downe, and Establisht.

APHORISME. VII.

But before we descend to the Body of Lawes in Particular; we will briefly touch the merit and Dignities of Lawes in gene∣ral. A Law may be held good, that is Certaine in the intima∣tion; Just in the Precept; Profitable in the Execution; Agree∣ing with the Forme of Goverment in the present state; and begetting virtue in those that live under them.

TITLE. I. OF THE FIRST DIGNITY OF Lawes, that they be CERTAINE.

APHORISME. VIII.

CERTAINTY is so Essentiall to a Law, as without it a Law cannot be Just; Si enim incertam vocem det Tuba, quis se parabit ad Bellum? So if the Law give an uncertain found, who shall prepare himselfe to obay? A Law than ought to

give warning before it strike: and it is a good Rule, That is the best Law which gives least liberty to the Arbitrage of the Iudge, which is that, the CERTAINTY thereof effecteth.

APHORISME. IX.

INCERTAINTY of Lawes is of two sorts; one where no Law is prescribed; the other, when a Law is difficile and darke: we must therefore first speak of Causes omitted in the Law; that in these likewise there may be found some Rule of CERTAINTY.

OF CASES OMITTED IN LAW.

APHORISME. X.

THe narrow compasse of mans wisdome, cannot comprehend all cases which time hath found out; and therefore Cases o∣mitted, and new doe often present themselves. Jn these cases there is applied a threefold remedy, or supplement; either by a proceeding upon like Cases, or by the use of Examples thoe they be not grown up into Law; or by Iurisdictions, which award according to the Arbitrement of some Good Man, and according to sound judgement; whether they be Courts Praetorian or of E∣quity, or Courts Censorian or of Penalty.

OF PROCEEDING UPON LIKE Presidents; and of the Extensions of LAWES.

APHORISME. XI.

IN Cases omitted, the Rule of Law is to be deduced from Cases of like nature; but with Caution and Judgement. Touching which these Rules following are to be observed. Let Reason be fruitfull; Custome be Barren, and not breed Ca∣ses. Wherefore whatsoever is accepted against the Sence and Reason of a Law; or else where the Reason thereof is not appa∣rant,

the same must not be drawne into consequence.

APHORISME. XII.

A singular Publique Good doth necessarily introduce Cases Pretermitted. Wherefore when a Law doth notably and extra∣ordinarily respect and procure the Profit and advantage of a State, Let the interpretation be ample and extensive.

APHORISME. XIII.

It is a hard Case to torture Lawes, that they may torture Men. We would not therefore that Lawes Penal, much lesse Capital, should be extended to new Offences: yet if it be an old Crime, and known to the Lawes, but the Prosequution thereof falls upon a new Case, not fore-seen by the Lawes; we must by all means depart from the Placits of Law, rather than that of∣fences passe unpunisht.

APHORISME. XIV.

In those statutes, which the Common Law (specially con∣cerning cases frequently incident, and are of long conti∣nuance) doth absolutely repeale; We like not the proceeding by similitude, unto cases omitted: for when a State hath for a long time wanted a whole Law, and that, in Cases exprest; there is no great danger if the cases omitted expect a remedy by a new statute.

APHORISME. XV.

Such Constitutions as were manifestly, the Lawes of Time, and sprung up from emergent Occasion, then prevailing in the Common-wealth; the state of times once changed, they are re∣verenc'd enough if they may conserve their authority, within the limits of their own proper cases: and it were preposterous any way to extend and apply them to Cases omitted.

APHORISME. XVI.

There can be no Sequele of a Sequele, but the extention must be arrested within the limits of immediate Cases: otherwise we fall by degrees upon unresembling Cases; and the subtlety of wit will be of more force, than the Authority of Law.

APHORISME. XVII.

In Lawes and Statutes of a compendious stile, extention may be made more freely; but in those Lawes which are punctuall in the enumeration of Cases Particular, more warily: for as exception strengthens the force of a Law, in Cases not excep∣ted; so enumeration weakens it, in Cases not enumerated.

APHORISME. XVIII.

An Explanatory statute dammes up the streames of a Former statute; neither is the extention received afterward, in the one or the other: for there is no super-extension can be made by a Iudge, where once an extention hath begunne to be made by a Law.

APHORISME. XIX.

The Forme of words and Acts of Court, doth not admit an Ex∣tention upon like Cases; for that looseth the nature of Formality, which departs from Custome to Arbitrement: and the introducti∣on of new Cases imbaseth the Majesty of the old.

APHORISME. XX.

Extention of Law is aptly applied unto Cases Post-nate, which were not existent in nature, when the Law was enacted: for where the case could not be exprest, because there were none such extant; a Case omitted is accepted for a Case exprest, if the reason be the same.

So for Extention of Lawes in Cases omist let these Rules

suffice. Now we must speak of the use of Examples.

OF PRESIDENTS AND the use thereof.

APHORISME. XXI.

NOw it followes we speak of Examples, from which Right is inferr'd, where Law is deficient: as for Custome, which is a kind of Law; and for Presidents which by frequent Practise are growne into Custome, as into a Tacite Law; we will speak in due place. But now we speak of Examples or Presi∣dents, which rarely and sparsedly fall out; and are not yet growne up to the strength of a Law; namely when, and with what caution a Rule of Law is to be derived from them, where Law is De∣ficient.

APHORISME. XXII.

Presidents must be derived from Good and Moderate; and not from Bloudy, Factious, or Dissolute Times: for Ex∣amples fetcht from such times, are a Bastard issue, and doe rather Corrupt, than Instruct.

APHORISME. XXIII.

Jn Examples the more Moderne, are to be reputed the more safe: for that which was but lately done, and no inconvenience en∣sued thereon, why may it not be done againe? Yet neverthelesse Recent Examples are of lesse Authority: and if perchance it so fall out, that a Reformation must be made, Moderne Presidents fast more of their own Times, than of right Reason.

APHORISME. XXXVI.

But more Ancient Presidents must be received with caution,

and choice: for the Revolution of an Age altereth many things; so as what might seem Ancient for Time, the same through pertur∣bation, and Inconformity to the present Age, may be altogither New. wherefore the examples of a midle time are best; or of such an Age, as best sorts with the Present times; which now and than the Time further off better represents, than the Time close at hand:

APHORISME. XXV.

Keep year selfe within, or rather on this side the limits of an Example, and by no means surpasse those bounds: for where there is no Rule of Law, all ought to be intertain'd with jealousy: wherefore heere, as in obscure cases, follow that which is least doubtfull.

APHORISME. XXVI.

Beware of Fragments and Compends of Examples; and view the Example entire and every particular passage thereof: for if it be inequal & unreasonable before a perfect comprehen∣sion of the whole Law, to make a judgement upon a Part, or Paragraph thereof; much more should this rule hold in Examples which unlesse they be very square and proper, are of doubtfull use and application.

APHORISME. XXVII.

In Examples it imports very much thorough what hands they have past, and have bin transacted; for if they have gone currant with Clerks only and Ministers, of Iustice from the course of some Courts, without any notice taken thereof by superior Counsilors; or with the Master of Errors, the People; they are to be rejected and litle estimed of: but if they have bin such precise Presidents to Counsilors of Estate, Judges or Principall Courts, as that it must needs be, that they have bin strengthened by the tacite approbation, at least, of Iudges; they carry the more Reverence with them.

APHORISME XXVIII.

Presidents that have bin publisht, however lesse practised, which being debated and ventilated by mens discourses and dis∣ceptations have yet stood out unargued; are of greater Authority; but such as have remaind, buried, as it were, in Closets and Ar∣chives, are of lesse: for Examples like waters are most whole∣some in the running streame.

APHORISME. XXIX.

Examples that referre to Lawes, we would not have them drawn from writers of History, but from publique Acts, and more diligent Traditions: for it is an infelicity familiar even with the best Historians, that they passe over Lawes and Iudici∣al proceedings too slightly: and if perhaps they have used some diligence therein, yet they vary much from Authentique Con∣stitutions.

APHORISME XXX.

An Example, which a contemperary Age, or a time neerest un∣to it hath repeal'd, should not easily be taken up againe, thoe the like case should afterwards ensue: nor makes it so much for an Example, that men have sometimes used it, as it make against an example, that upon experience, they have now reliquisht it.

APHORISME. XXXI.

Examples are admitted into Counsils; but doe in like manner prescribe or command; therefore let them be so moderated, that the Authority of the time past, may be bowed and plied to the pra∣ctise of the Time present. And thus much concerning information from Presidents where Law is Deficient. Now followes that we speak of Courts Praetorian and Censorian; Courts of Equity, and of Penalty.

OF COURTS PRAETORIAN AND CENSORIAN.

APHORISME. XXXII.

LEt there be Courts and Iurisdictions, which may define according to the Arbitrement of some Good man, and accor∣ding to sound judgement for the Law (as is observ'd before) cannot provide for all Cases; but is fitted to such occurrences as commonly fall out; and Time (as was said by the Ancients) is a most wise Thing, and daily the Auctor and Inventor of new Cases.

APHORISME. XXXIII.

New cales fall out both in Matters Criminal, which have need of Penalty, and in Matters Civile, which have need of Re∣liefe: the Courts which respect the Former, we call Censorian; which respect the latter, Praetorian.

APHORISME. XXXIV.

Let the Censorian Courts of Justice, have jurisdiction and Power not only of punishing new offences; but also of increas∣ing Penalties assigned by the Lawes for old crimes, if the cases beheynous, and enormous, so, they be not Capitall: for a Notori∣ous guilt, as it were, a New Case.

APHORISME. XXXV.

Jn like manner, let Praetorian Courts of Equity, have pow∣er to qualify the Rigor of Law; as also of supplying the De∣fects of Law: for if a Remedy ought to be extended to him whom the Law hath past by; much more to him whom it hath wounded.

APHORISME. XXXVI.

Let these Censorian and Praetorian Courts be by all means

limited within Cases Heinous and extraordinary; & not invade ordinary Jurisdictions; least peradventure the matter extend to the supplantation, rather than the supplement of Law.

APHORISME. XXXVII.

Let these Iurisdictions recide only in the Highest Courts of Iudicature, and not be communicated to Courts inferior. For the Power of extending, or supplying, or Moderating Lawes, litle differs from the Power of Makeing them.

APHORISME. XXXVIII.

But let not these Courts be assigned over to one man, but consist of Many: Nor let the Decrees thereof issue forth with si∣lence, but let the Iudges alleage Reasons of their sentence, and that openly in the Audience of the Court; that what is free in the Power, may yet in the fame and reputation be confined.

APHORISME XXXIX.

Let there be no Rubriques of blood; neither Define of Ca∣pitall crimes in what Court soever, but from a known and cer∣taine Law; for God himselfe first denounced Death, afterwards inflicted it. Nor is any man to be put to death, but he that knew before hand, that he sinned against his own life.

APHORISME XXXX.

In Courts of Censure, give way to a third Triall, that a ne∣cessity be not imposed upon Iudges of absolveing or of condemne∣ing, but that they may pronounce a Non liquet, so in like man∣ner, let Lawes Censorian, not only be a Penalty, but an Infa∣my, that is, which may not inflict a punishment, but either end in admonition; or else chastise the delinquent with some light touch of Ignominy, and as it were, a blushing shame.

APHORISME. XLI.

Jn Censorian Courts let the first aggressions, and the midle Acts of Great offences, and wicked attempts be punisht; yea al∣though they were never perfectly accomplisht: and let that be the chiefest use of those Courts; seeing it appertaines to severity, to punish the first approaches of wicked enterprizes; and to Mercy to intercept the perpetration of them by correcting midle Acts.

APHORISME. XLII.

Speciall regard must be taken, that in Pretorian Courts, such Cases be not countenanc'd, which the Law hath not so much pre∣termitted, as slighted as Frivolous; or, as odious, judg'd unwor∣thy redresse.

APHORISME XLIII.

Above all it most imports the Certainty of Lawes, that Courts of Equity doe not so swell and overflow their banks, as under pretense of mitigating the Rigor of Lawes, they doe dis∣sect or relaxe the strength and sinewes thereof, by drawing all to Arbitrement.

APHORISME. XLIV.

Let not Pretorian Courts have Power to Decree against ex∣presse statute, under any pretence of equity: for if this should be permitted, a Law-interpreter would become a Law-maker; and all matters should depend upon Arbitrement.

APHORISME. XLV.

Some are of opinion, that the Iurisdiction of Defining accord∣ing to Equity and Conscience; and that other, which proceeds according to strickt Law; should be deputed to the same Courts; but others say to several: by all means let there be a separation of Courts; for there will be no Distinction of Cases, where

there is commixtion or jurisdictions; but you shall have Ar∣bitrement incroach upon, and at last, swallow up Law.

APHORISME. XLVI.

The Tables of the Pretors amongst the Romans came in use upon good ground: in these the Pretor set diwne and publisht a∣fore hand, by what forme of Law he would execute Judicature. Af∣ter the same example, Iudges in Pretorian Courts, should pro∣pound certaine Rules to themselves (so farre as may be) and o∣penly publish them: for that is the best Law, which gives least liberty to the Judge; he the best Judge that takes least liberty to himselfe. But of these Courts we shall speak more at large, when we come to the Title De Judiciis; we now speak of them in passage only, so farre as they cleere and supply that which is omitted by the Law.

OF THE REFLECTIVE ASPECT OR REFERENCE of Lawes one to another.

APHORISME. XLVII.

THere is likewise another kinde of supplement of Cases o∣mitted; when one Law falleth upon another, and withall drawes with it Cases pretermitted. This comes to passe in Lawes or Statutes, which (as the usuall expression is) looke back or re∣flect one upon another. Lawes of this nature, are rarely and with great Caution to be alleag'd: for we like it not, to see a too Fac'd Ianus in Lawes.

APHORISME. XLVIII.

He that goes about to elude and circumvent the words and sentence of Law by Fraude and captious fallacies, deserves in like manner to be himselfe insnar'd by a succeeding Law where∣fore in case of subtile shifts and sinister devises, it is very meet that lawes should looke back upon and mutually support one another, that he who studies evasions, and eversion of Lawes

Present, may yet stand in awe of future Lawes.

APHORISME. XLIX.

Lawes which strengthen and establish the true intentions of Records and Instruments, against the Defects of Formes and Solennities, doe rightly comprehend matters Past: for the greatest inconvenience in a law that referres back, is, that it di∣sturbeth: But these confirmatory Lawes, respect the peace and setling of those cases, which are transacted and determin'd; yet we must take heed that cases already adjudg'd, be not reverst or violated.

APHORISME. L.

We must be very carefull that, not those Lawes alone, be thought to respect things past, which invalide cases already de∣cided; but those also which prohibite and restraine future cases necessarily connext with matters past. As for example, if a Law should interdict some kind of Trades-men the vent of their com∣modities for hereafter: the letter of this Law is for the future; but the sense and meaning takes hold of the time past; for now it is not warrantable for such persons to get their liveing this way.

APHORISME. LI.

Every Declaratory Law althoe there be no mention of time past, yet by the force of the Declaration, it is by all means to be extended to matters past: for the Interpretation doth not then begin to be in force, when it is declared; but is made contempo∣rary with the Law it selfe. Wherefore never enact declaratory Lawes, but in case where Lawes may in equity referre and looke back one upon another. And here we have done with that part which handles the INCERTITUDE OF LAWES, where no Law is found. It remaines, we now speake of that o∣ther part, namely where there is a Law extant, but such a one as is PERPLEXT and OBSCURE.

OF THE OBSCURITY OF LAWES.

APHORISME. LII.

OBscurity of Lawes springs from foure causes: either from the excessive accumulation of Lawes, specially where there is a mixture of Obsolete Lawes: Or from an ambiguous, or not so perspicuous and dilucide description of Lawes: or from the manner of expounding Law, either alto∣gither neglected, or not rightly pursued: or lastly from contra∣diction and incertainty of judgements.

OF THE EXCESSIVE ACCUMU∣LATION OF LAWES.

APHORISME. LIII.

THe Prophet saith, Pluet super eos Laqueos; now there are no worse snares than the snares of Lawes, specially Pe∣nall; if they be immense for number; and through the alterati∣ons of times unprofitable; they doe not present a torch, but spread a net to our Feet.

APHORISME. LIV.

There are two wayes in use of making a new statute; the one establisheth and strengthens the Former statute about the same ject; and then addes and changes some things: the other abro∣gates and cancels what was Decreed before, and substitutes de in∣tegro, a new and uniforme Law. The latter way we ap∣prove: for by the former way Decrees become complicate and perplext; yet what is undertaken is indeed pursued, but the Body of Law is in the meane time corrupted. But certainly the more di∣ligence is required in the latter, where the Deliberation is of the Law it selfe; that is, the Decrees heretofore made, are to be

searched into and duely waighed and examin'd, before the Law be publisht: but the chiefe point is, that by this means the Harmony of Lawes is notably advanced for the future.

APHORISME. LV.

It was a custome in the state of Athens, to delegate fixe per∣sons, for to revise and examine every yeare the Contrary-Titles of Law, which they called Anti-nomies; and such as could not be reconciled, were propounded to the People, that some certainty might be defined touching them. After this example, let such in every state, as have the Power of making Lawes, review Anti-no∣mies every third or fifth yeare, or as they see cause. And these may be first searcht into, and prepar'd by committees assigned thereto, and after that exhibited to Assemblies; that so what shall be approv'd, may by suffrages be establisht and setled.

APHORISME. LVI.

And let there not be too scrupulous and anxious paines taken in reconcileing Contrary-Titles of Law, and of Salving (as they terme it) all points by subtle and studied Distinctions. For this is the webbe of wit; and however it may carry a shew of Modesty and Reverence, yet it is to be reckoned in the number of things Prejudicial; as being that which makes the whole body of Law ill∣sorted and incoherent. It were farre better that the worst Titles were cancel'd, and the rest stand in force.

APHORISME. LVII.

Obsolete Lawes and such as are growne out of use, as well as Anti-nomies, should be propounded by delegates, as a part of their charge to be repeal'd: for seeing expresse statute cannot re∣gularly be voided by Disuse; it falls out that through a Disesti∣mation of Obsolete Lawes, the autority of the rest is some∣what embased; and Mezentius Torture ensues; that Lawes a∣live are killed with the embracements of Lawes dead: but above all beware of a Gangrene in Lawes.

APHORISME LVIII.

So likewise for Obsolete Lawes and statutes, and such as are not lately publisht; let the Pretorian Courts have power, in the mean space, to define contrary to them: for although it hath been said not impertinently, no man ought to make himselfe wi∣ser than the Lawes; yet this may be understood of Lawes, when they are awake, not when they are asleepe. On the other side, let not the more recent statutes, which are found prejudiciall to the Law-Publique, be in the Power of the Iudges; but in the Power of Kings and Counsilors of Estate, and supreme autorities for Redresse, by suspending their execution through edicts and Acts; untill Parliamentary Courts, and such High Assemblies meet a∣gaine, which have Power to abrogate them; Lest the safety of the Common-wealth should in the meanwhile, be endangerd.

OF NEW DIGESTS OF LAWES.

APHORISME. LIX.

BƲt if Lawes accumulated upon Lawes, swell into such vast volumes, or be obnoxious to such confusion, that it is ex∣pedient to revise them a new, and to reduce them into a sound and solide body; intend it by all means; and let such a work be reputed an Heroicall noble work; and let the Auctors of such a work, be rightly and deservedly ranckt, in the number of the Founders and Restorers of Law.

APHORISME. LX.

This Purging of Lawes, and the contriveing of a new Digest is five waies accomplisht. First let Obsolete Lawes, which Iusti∣nian termes, old Fables be left out. Secondly let the most ap∣proved of Anti-nomies be received, the contrary abolisht. Thirdly, let all Coincident Lawes, or Lawes which import the same, and are nothing else but repetitions of the same thing, be expung'd; and some one, the most perfect among them, retain'd

instead of all the rest: Fourthly if there be any Lawes which determine nothing, but only propound Questions, and so leave them undecided, let these likewise be casse er'd. Lastly let Lawes too wordy and too prolixe be abridged into a more narrow Compasse.

APHORISME. LXI.

And it will import very much for use, to compose and sort apart in a new Digest of Lawes, Law recepted for Common Law, which in regard of their beginning are time out of mind; and on the other side statutes super added from time to time: seeing in the delivery of a Juridicall sentence, the interpretation of Common Law, and Statute-Lawes in many points is not the same. This Trebonianus did in the Digests and Code.

APHORISME LXII.

But in this Regeneration and new structure of Lawes, re∣taine precisely the words and the Text of the Ancient Lawes and of the Books of Law; thoe it must needs fall out that such, a collection must be made by centoes & smaller Portions: then sort them in order: For althoe this might have bin performed more aptly, and (if you respect right reason) more truly, by a New Text, than by such a consarcination; yet in Lawes, not so much the stile and description; as Autority, and the Patron thereof, Antiquity, are to be regarded: otherwise such a work, might seem a scholastique businesse, and method, rather than a body of commanding Lawes.

APHORISME. LXIII.

In this New Digest of Lawes, upon good advisement a cave∣at hath bin put in; that the Ancient volumes of Law should not be utterly extinguisht, and perish in oblivion; but should at least remaine in Libraries; thoe the common and promiscuous use there∣of might be retain'd. For in Cases of waighty consequence, it will not be amisse to consult and look into the mutations and conti∣nuations of Lawes past: and indeed it is usuall to sprinkle Mo∣derne

matters with Antiquity. And this new corps of Law, must be confirmed only by such, who in every state have the power of making Lawes; lest perchance under colour of Digesting An∣cient Lawes, new Lawes, under hand be convayed in.

APHORISME. LXIV.

It could be wisht that this Instauration of Lawes, might fall out, and be undertaken in such times, as, for learning and expe∣rience, excell those more Ancient times, whose Acts and Deeds they recognize: which fell out otherwise in the works of Iustinian. For it is a great unhappinesse, when the works of the Ancient, are maimed, and recompiled by the judgement and choice of a lesse wise and Learned Age: but oft times that is necessary which is not the best.

They much be spoken of the OBSCVRITY of LAWES, ari∣sing from the excessive and confused accumulation thereof. Now let us speak of the dark & DOVBTFVLL DESCRIPTION of them.

OF THE PERPLEXT AND OBSCURE DESCRIPTION OF LAWES.

APHORISME LXV.

OBscure Description of Lawes arises either from the Loquacity or Verbosity of them; or againe from extreme Brevity; or from the Preamble of a Law repugnant with the Body of a Law.

APHORISME. LXVI.

Jt followes that we now speak of the Obscurity of Law, arise∣ing from a corrupt and crooked description thereof. The Lo∣quacity and Prolixity, which hath bin used in setting downe Lawes we dislike: neither doth such a writer any way compasse what he desires, and labours for; but rather the quite contrary. For while a man endeavours to pursue and expresse every Parti∣cular

case in apt and proper termes, hopeing to gaine more Certitude thereby; contrariwise it falls out that through many words, multitude of Questions are ingendred; so as a more sound and solid interpretation of Law, according to the genuine sense and mind thereof, is much intercepted through the noise of words.

APHORISME. LXVII.

And yet notwithwanding a too Concise and affected Brevi∣ty for Majesties sake, or as more Imperiall, is not therefore to be approved, specially in these times; least Law become perchance, a Lesbian Rule. Wherefore a midle temperd stile is to be em∣braced; and a generality of words well stated to be sought out; which though it doe not so throughly pursue cases comprehended, yet it excludes cases not comprehended cleerely enough.

APHORISME. LXVIII.

Yet in ordinary and Politique Lawes and Edicts, wherein for most part no man adviseth with his Counsil, but trusteth to his owne judgement, all should be more amply explicated and pointed out, as it were, with the finger, even to the meanest capacity.

APHORISME. LXIX.

So neither should we allow of Preambles to Lawes, which a∣mongst the ancients were held impertinencies, and which introduce Disputeing and not commanding Lawes, if we could well a∣way with ancient custome. But these Prefaces commonly (as the times are now) are necessarily prefixt, not so much for explication of Law, as for perswasion that such a Law may passe in the solemne meeting of a State; and againe to give satisfaction to the commu∣nalty. Yet so farre is possible may be, let Prologues, be avoided and the Law begin with a command.

APHORISME. LXX.

The Mind and Meaning of a Law, though sometimes it may be drawn not improperly from Prefaces and Preambles (as they

terme them;) yet the latitude and extention thereof, must not be fetcht from thence. For a Preamble by way of example, some∣times fetcheth in laies hold upon some of the most plausible & most specious passages; when yet the Law compriseth many moe: or on the contrary, the Law restraines and limits many Cases, the reason of which limitations to insert in the Preface were su∣perfluous. Wherefore the dimension and latitude of a Law must be taken from the Body of a Law: for a Preamble often falls either short, or over.

APHORISME. LXXI.

And there is a very vitious manner of Recording of Lawes, that is, when the case at which the Law aimeth, is ex∣prest at large in the preamble, afterward from the force of the word (The like) or some such terme of relation, the Body of a Law is reverst into the Preamble; so as the Preamble is inser∣ted and incorporated into the Law it selfe; which is an obscure and not so safe a course; because the same diligence useth not to be ta∣ken in Pondering and examining the words of a Preamble, as there useth to be done in the Body of a Law it selfe. This part touching the Incertainty of Lawes proceeding from an ill De∣scription of them we shall handle more at large hereafter, when we come to treat of the Interpretation of Lawes. Thus much of the obscure Description of Lawes. Now let us speake of the waies of expounding Lawes.

OF THE DIVERS WAIES OF expounding Law and solveing Doubts.

APHORISME. LXXII.

The waies of Expounding Law and solveing Doubts, are five. For this is done either by Court Rolls and Records; or by Authentique writs; or by subsidiary books; or by Prelections; or by Responses and Resolutions of wise men. All these if they be well instituted and set downe, will be singular helps at hand against the obscurity of Lawes.

OF THE REPORTING OF JƲDGEMENTS.

APHORISME. LXXIII.

ABove all, let the Iudgements delivered in higher, and Principall Courts of Iudicature, and in matters of grave importance; specially Dubious, and which have some Difficulty and Newnesse in them, be taken with faith and dili∣gence. For Decrees are the Anchors of Law, as Lawes are of the Republique.

APHORISME. LXXIV.

The manner of collecting such Judgements and Reporting them, let be this. Register the case precisely; the Iudgements exactly; annexe the Reasons of the Judgements alleadged by the Judges, mingle not Authorities of Cases brought for exam∣ple with Cases Principal. As for Perorations of Pleaders, unlesse there be something in them very remarkable, passe them o∣ver with silence.

APHORISME. LXXV.

The Persons which should Collect these Iudgements, Let them be of the order and ranke of the Learnedst Advocates, and let them receive a liberall Remuneration from the State. Let not the Iudges themselves medle; at all, with these Reports; least perchance, devoted to their owne opinions, and supported by their owne Authority, they transcend the limits of a Re∣porter.

APHORISME. LXXVI.

Digest these Iudgements according to the order and con∣tinuation of time, not according to Method and Titles: for writings of this nature are, as it were, the Histories and Re∣ports

of Lawes; nor doe the Decrees alone, but their times also, give light to a wise Iudge.

OF AUTHENTIQUE WRITERS.

APHORISME. LXXVII.

LEt the Body of Law be built only upon the Lawes them∣selves, which constitute the common Law; next of De∣crees or Statutes; in the third place of Iudgements enrolled; besides these, either let there be no other Authentiques at all, or spareing entertain'd.

APHORISME. LXXVIII.

Nothing so much imports Certainty of Lawes (of which we now discourse) as that Authentique writings, be confined within moderate bounds; and that the excessive multitude of Authors and Doctors of the Lawes; whereby the mind and sentence of Lawes are distracted; the Iudge confounded; proceedings are made immortall; and the Advocate himselfe, despairing to read o∣ver and conquer so many Books, betakes himselfe to Abridge∣ments; be discarded. Jt may be some good glosse, and some few of Classique writers, or rather some small parcell of few writers, may be received for Authentiques. Yet of the rest, some use may be made in Libraries, where Iudges or Advocates, may as occasion is offered read their Discourses: but in causes to be pleaded, let them not be permitted to be brought, and alleaged in the Court, nor grow up into autority.

OF AUXILIARY BOOKS.

APHORISME. LXXIX.

LEt not the knowledge and practise of Law be destituted, but rather well provided of Auxiliary Books. They

are in generall sixe sorts, Institutes; of the signification of words; of the Rules of Law; Ancient Records; Abridge∣ments; Formes of Pleading.

APHORISME LXXX

Young Students, and Novices are to be enterd by Institutes; that they may the more profoundly and orderly draw and take in the knowledge and Difficulties of the Lawes. Compose these Institutes after a cleere and perspicuous manner. Jn these ele∣mentary books runne over the whole Private Law; not passing by some Titles, and dwelling too long upon others; but briefly touching something in all; that so coming to read through the whole body of Lawes, nothing may be presented altogither strange; but what hath bin tasted, and preconceiv'd by some slight notion. Touch not the Publique Law in Institutes, but let that be deduced from the Fountaines of themselves.

APHORISME. LXXXI.

Compile a Commentary upon the Termes of Law: Be not too curious and tedious in the explication thereof; and of rendring their sense; for the scope here, is not exactly to seeke out the Defi∣nition of words; but such explications only, as may cleere the passage to the reading of the Books of Law. Digest not this Treatise by the letters of the Alphabet: leave that to some In∣dex; but let such words as import the same thing be sorted togither; that in the comprehension of the sense, one may administer help unto the other.

APHORISME. LXXXII.

A sound and well-labour'd Treatise of the Diverse Rules of Law, conduceth (if anything doth) to the Certainty of Lawes. A worke worthy the Penne of the greatest wits, and wisest Jurists. Nor doe we approve what is extant in this kind. And not only no∣ted and common Rules, are to be collected, but also others more subtile, and abstruse, which may be abstracted out of the Harmo∣ny

of Lawes, and Iudged Cases; such as are sometimes found in the best Rubriques; and these are the generall Dictates of Rea∣son, and the Ballast, as it were of Law.

APHORISME. LXXXIII.

But all Decrees and Placits of Law, must not be taken for Rules, as is wont to be, absurdly enough: for if this should be ad∣mitted, then so many Lawes, so many Rules; for a Law is no∣thing else, then a commanding Rule. But accept those for Rules which cleave to the very Forme of Iustice, from whence for most part the same Rules are commonly found through the Civile Lawes of Different States; unlesse perhaps they vary for the reference to the Formes of Publique Goverments.

APHORISME. LXXXIV.

After the Rule is delivered in a briefe and substantiall com∣prehension of words; let there be, for explication, annext exam∣ples, and most cleere and luculent Decisions of Cases; Distin∣ctions and exceptions for limitations; Points concurrent in sense, for Amplification, of the same Rule.

APHORISME. LXXXV.

It is well given in Precept, that a Law should not be drawne from Rules; but the Rule from the Law in force. Neither is a Proofe to be taken from the words of a Rule; as if it were a Text of Law: for a Rule (as the sea-mans needle doth the Poles) indicates only, not Determines Law.

APHORISME. LXXXVI.

Besides the Body of Law, it will availe also, to survay the Antiquities or ancient Records of Lawes, whose Autority thoe it be vanisht, yet their Reverence remaines, still. And let the writings and Iudgements concerning Lawes, be received for the Antiquities of Laws, which in time preceded the Body of Lawes; whether they were publisht or not: for these must not be Lost. Therefore out of these Records select what ever is most use∣full

(for there will be found much vaine and frivolous matter in them) and digest them into one volume; Lest old fables (as Tre∣bonianus calls them) be mixt with the Lawes themselves.

APHORISME. LXXXVII.

And it much imports the Practique part of Lawes, that the whole Law be Digested into Places and Titles; whereto a man may have (as occasion shall be given) a sodaine recourse, as to a furnisht Promptuary for present practise. These Books of A∣bridgements, both reduce into Order what was dispersed, and abreviate what was diffused and Prolixe in Law. But caution must be taken that these Breviaries, make not men prompt for the Practique part: and slothfull for the knowledge it selfe: for their proper use and office is this, that by them the Law may bee tilled over againe, and not throughly learned. And these Sum∣maries must by all meanes be collected with great diligence, faith, and judgement, lest they commit Fellony against the Law.

APHORISME. LXXXVIII.

Make a Collection of the diverse Formes of Pleading in eve∣kinde: for this conduceth much to the Practique Part: and Cer∣tainly these Formes doe discover the Oracles, and secret Myste∣ries of Lawes: for there are many things which lye hidden in Lawes; But in Formes of Pleading, they are better and more largely displayed; — like the Fist to the Palme.

OF RESPONSES AND RESOLVTI∣ONS OF DOVBTS.

APHORISME. LXXXIX.

SOme Course must be taken for the Cutting off and satisfying Particular Doubts which emerge from time to time: for it is a hard case that they which desire to secure themselves from error, should finde no guide to the way: but that present Businesses should be hazarded; and there should bee no meanes to know the Law

before the matter be dispatcht.

APHORISME. XC.

That the Resolutions of the Wise, given to Clients touching point of Law, whether by Advocates or Professors should be of such authority, that it may not be lawfull for the Judge to de∣part from their opinion, we cannot approve. Let Law be derived from sworne Iudges.

APHORISME. XCI.

To Feele and sound Iudgements by fained Causes and Persons, that by this meanes, men might find out what the Course and pro∣ceeding of Law will be, we approve not: for it dishonoureth the Majesty of Lawes, and is to be accounted a kind of prevarica∣tion or double dealing; and it is a foule sight to see places of Iudicature to borrow any thing from the stage.

APHORISME. XCII.

Wherefore let, as well the Decrees, as the answers and Coun∣sils proceed from the Judges alone: those of suits depending; these of difficult points of Law, in the general. Require not these De∣cisions, whether in causes private or publique, from the Iudges themselves, (for this were to make the Iudge an Advocate) but of the Prince, or of the State. From these let the order be directed unto the Iudges: and let the Iudges thus authorized, heare the reasons on both sides; both of the Advocates or of the Com∣mittees, deputed by the parties to whom the matter appertaineth; or of them assigned by the Judges themselves; if necessity so re∣quire: and waighing the Cause, let them deliver the Law upon the case and declare it. Let these verdicts and counsils, be recor∣ded and notified amongst Cases adjudged, and be of equall au∣thority.

OF PRELECTIONS.

APHORISME. XCIII.

LEt the Lectures of Law, and the exercises of those that ad∣dresse themselves to the studies of Law, be so instituted and ordered, that all may tend rather to the laying asleepe, than the awakeing of Questions and Controversies in Law. For (as the matter is now carried) a Schoole is set up, and open amongst all, to the multiplying of Altercations and Questions in Law; as if their aime was only to make ostentation of wit. And this is an old disease, for even amongst the Ancients, it was, as it were, a glory, by Sects and Factions, to cherish rather than extinguish many questions concerning Law. Provide against this in∣convenience.

OF THE INSTABILITY OF IƲDGEMENTS.

APHORISME. XCIV.

IVdgements become incertaine, either through immature and too precipitate proceeding to sentence; or through Emulation of Courts; or through ill and unsckilfull re∣gistring of Iudgements; or because there is a too easy and ex∣pedite way open of Reversing and Rescinding them. Where∣fore it must be provided, that Iudgements issue forth not without a staid deliberation had aforehand; and that Courts beare a Reverent respect to one another; and that Decrees be drawne up faithfully and wisely; and that the way to repeale Iudge∣ments be narrow, rockie and strewed, as it were, with sharpe stones.

APHORISME. XCV.

If a Iudgement have been awarded upon a Case in any Prin∣cipall Court; and the like case, intervene in another Court; proceed not to sentence before the matter be advised upon in some so∣lemne

Assemble of Iudges: for if Iudgements awarded must needs be repeal'd, yet let them be interred with Honor.

APHORISME. XCVI.

For Courts to be at debate and variance about Iurisdictions is a humane frailty; and the more because this intemperance, through a misprision and vaine conceit (that it is the part of a stout resolute Iudge to enlarge the priviledges of the Court) is openly countenanced and spurr'd on, whereas it hath need of the Bridle. But that out of this heat of stomack, Courts should so easi∣ly reverse on both sides Judgements awarded, which nothing pertaine to Iurisdiction, is an insufferable evill, which by all means should be repres'd and punisht; by Kings or Counsils of State, or the forme of Government. For it is a President of the worst ex∣ample, That Courts, that should distribute Peace, should themselves practise Duells.

APHORISME. XCVII.

Let there not be a too easy and free passage made to the Re∣pealing of Iudgements by Appellations and writs of Error, or Reexamination, and the like. It is maintained by some, that a Suit may be brought into a Higher Court, as entire and untried, the Iudgement past upon it, set aside and absolutely suspended: others are of opinion that the Iudgement it selfe may stand in force, but the execution thereof may be staid: neither of these is to be allowed, unlesse the Courts wherein the Iudgement was a∣warded, were of a base and inferior order: but rather that both the Iudgement stand, and that the execution thereof goe on; so a Caveat be put in by the Defendant for Damages and charges if the Iudgement should be reverst.

BUt this Title touching the Certainty of Lawes shall suf∣fice for a president to the rest of a* 1.16 DI∣GEST, which we with care & diligence endeavour to contrive. And now have we concluded Civile Knowledge (so farre as we thought fit to entreat thereof) and togither with it Humane

Philosophy, as also with Humane Philosophy; Philosophy in Generall. Wherefore being now at length at some pause, and lookeing back into that we have past through; this our writeing seems to us not much unlike those sounds and Preludes, which Musitians make while they are tuneing their Jnstruments; which is harsh and unpleasing to heare, but yet is a cause why the Musique is sweeter afterwards. So have we bin content to imploy our paines in tuneing the Jnstrument of the Muses, and to set it unto a true Harmony, that afterwards they may play who have better hands. Surely, when I set before me the condition of these times, in which Learning seems to have made hir third Circuit to Men; and withall diligently behold, with what various supplies and supports being furnisht, she hath made her vi∣sitation; as are, the height and vivacity of many wits in this our Age; the excellent monuments of Ancient writers, which as so many great lights shine before us; the Art of Printing, which communicates Books with a liberall hand to men of all fortunes; the travel'd bosome of the Ocean and of the world, opened on all parts, whereby multitudes of experiments un∣known to the Ancients have bin disclosed; and Naturall Hi∣story, by the accesse of an infinite Masse advanced: the leasure wherewith the Kingdomes and States of Europe every where abound, not imploying men so generally in Civile Businesses, as the States of Graecia did in respect of their Popu∣larity; or as the state of the Romans did in respect of their Monarchy: the Peace which at this present Brittanny, Spaine, Italy, as also at this instant France and many other Countries enjoy: The Consumption & Exinanition of all that can be imagined or said in controversies of Religion, which now so long time have taken up so many wits, and diver∣ted them from the studies of other Sciences: the Elevation and Perfection of Your Majesties Learning; about whom (as the Birds about the Phoenix) whole vollies of wits flock and assemble: Lastly the inseperable property which attends time it selfe, which is, ever more and more to disclose Truth: when we think I say, on these advantages; we cannot but be raised to

this Perswasion, that this third period of Learning, will farre surpasse those two former of the Graecian and Roman Learn∣ing. Onely if men will but well and wisely know their owne strength and their own weaknesse both; and take, one from the other, light of Inventions, and not Fire-brands of contradiction; and estime of the Inquisition of Truth, as a noble entreprise, and not as a delight or ornament; and im∣ploy wealth and magnificence to things of worth and ex∣cellency, and not to things vulgar & of popular estimation.

As for my Labours, if any man shall please himselfe or o∣thers in the reprehension of them, certainly they shall cause me put up that ancient request, but of great patience, verbe∣ra sed Audi; let men reprehend as they please, so they observe and waigh what is spoken. Verily the Appeale is lawfull (though, it may be, for this matter, not so needfull) if it be made from the first cogitations of men unto the second; and from the neerer times, to the times farther off.

Now let us come unto the Learning, which those two ancient Periods of time were not so blest as to know, I mean SACRED AND DIVINELY INSPIRED THEOLOGY, the Noblest Saboath and Port of all mens Labors and Pere∣grinations.

Notes

• ✿ 1.1

  CONSVL PALV∣DATVS, sive de proferen∣dis Impe∣rii finibus.
• * 1.2

  Plutar. in Them.
• * 1.3

  B. Ecl 7.
• * 1.4

  Plutar. in Alex.
• * 1.5

  Plut. in Lucul.
• * 1.6

  Macch. Discors. sopra Livio lib. 2.
• * 1.7

  Plut. in Solone.
• * 1.8

  Gen. XLIX.
• * 1.9

  Histor. HEN. VII.
• * 1.10

  Aen. I.
• * 1.11

  Exempla apud Cic. pro L. C. Bal.
• * 1.12

  Liv. lib. I. v.c. 37.
• * 1.13

  Vide sis Cl. Seldeni Mare claus.
• * 1.14

  Mat. VI.
• ✿ 1.15

  IDEA IV∣STITIAE VNIVER∣SALIS sive de Fontibus Iuris.
• * 1.16

  DIGESTUM juris Anglicani; SACRVM IUSTITIAE TEMPLUM; Opus sane Regium; sed nondum conditum; quod Tuo seculo, EX∣CELLENTISSIME PRINCIPUM, INSTAU∣RANDUM: TVI NOMINIS Aeter∣nitati, consecrandum reservatur.