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that of equity was, because the common people were in no fault, but as the Scripture saith in a like case, "quid fecerunt oves ista??" It was the cowardice and disloyalty of their governors that deserved punishment, but " what had these sheep done?" And therefore to have punished them, and deprived them of their land and fortunes, had been unjust. That of policy was, because if the law had forthwith, upon the loss of the countries by an accident of time, pronounced the people for aliens, it had been a kind of cession of their right, and a disclaimer in them, and so a greater difficulty to recover them. And therefore we see the statute which altered the law in this point, was made in the time of a weak king, that, as it seemed, despaired ever to recover his right, and therefore thought better to have a little present profit by escheats, than the continuance of his claim, and the countenance of his right, by the admitting of them to enjoy their inheritance as they did before.
The state therefore of this point being thus opened, it resteth to prove our assertion; that they were naturalized; for the clearing whereof I shall need but to read the authorities, they be so direct and pregnant. The first is the very text of the statute of prterogaliva regis. "Rex habebit escoetas de terris Normannorum, cujuscunque feodi fuerint, salvo servitio, quod pertinet ad capitales dominos feodi illius: et hoc similiter intelligendum est, si aliqua ha?reditas descendat alicui nato in partibus transmarinus, et cujus antecessores fuerunt ad fidem regis Francis, ut tempore regis Johannis, et non ad fidem regis Anglia?, sicut contigit de baronia Monumetce," etc.
By which statute it appears plainly, that before the time of king John there was no colour of any escheat, because they were the king's subjects in possession, as Scotland now is; but only it determines the law from that time forward.
This statute, if it had in it any obscurity, it is taken away by two lights, the one placed before it, and the other placed after it; both authors of great credit, the one for ancient, the other for late times: the former is Bracton, in his cap. De erceptionibus, lib. 5, fol. 427, and his words are these: "Est etiam et alia exceptio quae tenenti competit ex persona petentis, propter defectum nationis, qua? dilatoria est, et non perimit actionem, ut si quis alienigena qui fuerit ad fidem regis Franciae, et actionem instituat versus aliquem, qui fuerit ad fidem regis Anglia?, tali non respondeatur, saltern donee terra? fuerint communes."
By these words it appeareth, that after the loss of the provinces beyond the seas, the naturalization of the subjects of those provinces was in no sort extinguished, but only was in suspense during the time of war, and no longer; for he saith plainly, that the exception, which we call plea, to the person of an alien, was not peremptory, but only dilatory, that is to say, during the time of war, and until there were peace concluded, which he terms by these words, *' donee terrte fuerint communes:" which, though the phrase seem somewhat obscure, is expounded by Bracton himself in his fourth book, fol. 297, to be of peace made and concluded, whereby the inhabit
ants of England and those provinces might enjoy the profits and fruits of their lands in either place communiter, that is, respectively, or as well the one as the other: so as it is clear they were no aliens in right, but only interrupted and debarred of suits in the king's courts in time of war.
The authority after the statute is that of Mr. Stamford, the best expositor of a statute that hath been in our law; a man of reverend judgment and excellent order in his writings; his words are in his exposition upon the branch of the statute which we read before. "By this branch it should appear, that at this time men of Normandy, Gascoigne, Guienne, Anjou, and Britain, were inheritable within this realm, as well as Englishmen, because they were sometimes subjects to the kings of England, and under their dominion, until king John's time, as is aforesaid: and after his time, those men, saving such whose lands were taken away for treason, were still inheritable within this realm till the making of this statute j and in the time of peace between the two kings of England and France, they were answerable within this realm, if they had brought any action for their lands and tenements."
So as by these three authorities, every one so plainly pursuing the other, we conclude that the subjects of Gascoigne, Guienne, Anjou, and the rest, from their first union by descent, until the making of the statute of prasrogativa regis, were inheritable in England, and to be answered in the king's courts in all actions, except it were in time of war. Nay more, which is de abundanti, that, when the provinces were lost, and disannexed, and that the king was but king de jure over them, and not de facto; yet nevertheless the privilege of naturalization continued.
There resteth yet one objection, rather plausible to a popular understanding than any ways forcible in law or learning, which is a difference taken between the kingdom of Scotland and these duchies, for that the one is a kingdom, and the other was not so; and therefore that those provinces being of an inferior nature, did acknowledge our laws and seals, and parliament, which the kingdom of Scotland doth not.
This difference was well given over by Mr. Walter; for it is plain that a kingdom and absolute dukedom, or any other sovereign estate, do differ honore, and not potestale: for divers duchies and countries that are now, were sometimes kingdoms: and divers kingdoms that are now, were sometimes duchies, or of other inferior style: wherein we need not travel abroad, since we have in our own state so notorious an instance of the country of Ireland, whereof king Hen. VIII. of late time was the first that writ himself king, the former style being lord of Ireland, and no more; and yet kings had the same authority before, that they have had since, and the same nation the same marks of a sovereign state, as their parliaments, their arms, their coins, as they now have: so as this is too superficial an allegation to labour upon.
And if any do conceive that Gascoigne and Guienne were governed by the laws of England: First, that cannot be in reason; for it is a true ground, That wheresoever any prince's title unto any country is by law, he can never change the laws, for that they create his title: and therefore no doubt those duchies retained their own laws; which if they did, then they could not be subject to the laws of England. And next, again, the fact or practice was otherwise, as appeareth by all consent of story and record: for those duchies continued governed by the civil law, their trials by witnesses, and not by jury, their lands testamentary, and the like.
Now for the colours that some have endeavoured to give, that they should have been subordinate to the government of England; they were partly weak, and partly such as make strongly against them: for as to that, that writs of Habeas Corpus under the great seal of England have gone to Gascoigne, it is no manner of proof; for that the king's writs, which are mandatory, and not writs of ordinary justice, may go to his subjects into any foreign parts whatsoever, and under what seal it pleaseth him to use. And as to that, that some acts of parliament have been cited, wherein the parliaments of England have taken upon them to order matters of Gascoigne; if those statutes be well looked into, nothing doth more plainly convince the contrary, for they intermeddle with nothing but that that concerneth either the Englished subjects personally, or the territories of England locally, and never the subjects of Gascoigne; for look upon the statute of 27 Ed. III. cap. 5, there it is said, that there shall be no forestalling of wines. But by whom? Only by English merchants; not a word of the subjects of Gascoigne, and yet no doubt they might be offenders in the same kind.
So in the sixth chapter it is said, that all merchants Gascoignes may safely bring wines into what part it shall please them: here now are the persons of
Gascoignes; but then the place whither? Into the realm of England. And in the seventh chapter, that erects the ports of Bourdeaux and Bayonne for the staple towns of wine; the statute ordains, "that if any," but who ?" English merchant, or his servants, shall buy or bargain other where, his body shall be arrested by the steward of Gascoigne, or the constable of Bourdeaux;" true, for the officers of England could not catch him in Gascoigne; but what shall become of him, shall he be proceeded with within Gascoigne? No, but he shall be sent over into England into the Tower of London.
And this doth notably disclose the reason of that custom which some have sought to wrest the other way: that custom, I say, whereof a form doth yet remain, that in every parliament the king doth appoint certain committees in the upper house to receive the petitions of Normandy, Guienne, and the rest; which, as by the former statute doth appear, could not be for the ordering of the governments there, but for the liberties and good usage of the subjects of those parts when they came hither, or vice versa, for the restraining of the abuses and misdemeanors of our subjects when they went thither.
Wherefore I am now at an end. For us to speak of the mischiefs, I hold it not fit for this place, lest we should seem to bend the laws to policy, and not to take them in their true and natural sense. It is enough that every man knows, that it is true of these two kingdoms, which a good father said of the churches of Christ: "si inseparables insuperabiles." Some things I may have forgot, and some things, perhaps, I may forget willingly: for I will not press any opinion or declaration of late time which may prejudice the liberty of this debate; but "ex dictis, et ex non dictis," upon the whole matter I pray judgment for the plaintiff.
A PROPOSITION TO HIS MAJESTY,
BY SIR FRANCIS BACON, KNIGHT,
HIS MAJBSTY'S ATTORNEY GENERAL, AND ONE OP BIS PRIVY COUNCIL;
TOUCHING THE COMPILING AND AMENDMENT OF THE LAWS OF ENGLAND.
Your Majesty, of your favour, having made me privy-counsellor, and continuing me in the place of your attorney-general, which is more than was these hundred years before, I do not understand it )b be, that by putting off the dealing in causes between party and party, I should keep holy-day the more; but that I should dedicate my time to your service with less distraction. Wherefore, in this plentiful accession of time, which I have now gained, I take it to be my duty, not only to speed your commandments and the business of my place;
but to meditate and to excogitate of myself, wherein I may best, by my travails, derive your Tirtues to the good of your people, and return their thanks and increase of love to you again. And after I had thought of many things, I could find, in my judgment, none more proper for your Majesty as a master, nor for me as a workman, than the reducing and recompiling of the laws of England.
Your Majesty is a king blessed with posterity; and these kings sort best with acts of perpetuity, when they do not leave them, instead of children; but transmit both line and merit to future generations. You are a great master in justice and judicature, and it were pity that the fruit of that virtue should die with you. Your Majesty also reigneth in learned times; the more in regard of your own perfections and patronage of learning; and it hath been the mishap of works of this nature, that the less learned time hath wrought upon the more learned, which now will not be so. As for myself, the law is my profession, to which I am a debtor. Some little helps I may have of other learning, which may give form to matter; and your Majesty hath set me in an eminent place, whereby in a work, which must be the work of many, I may the better have coadjutors. Therefore, not to hold your Majesty with any long preface, in that which I conceive to be nothing less than words, I will proceed to the matter: which matter itself nevertheless requireth somewhat briefly to be said, both of the dignity, and likewise of the safety, and convenience of this work: and then go to the main; that is to say, to show how the work is to l>e done: which incidently also will best demonstrate, that it is no vast nor speculative thing, but real and feasible. Callisthenes, that followed Alexander's court, and was grown in some displeasure with him, because he could not well brook the Persian adoration; at a supper, which with the Grecians was ever a great part talk, was desired, because he was an eloquent man, to speak of some theme j which he did, and chose for his theme the praise of the Macedonian nation; which though it were but a filling thing to praise men to their faces, yet he did it with such advantage of truth, and avoidance of flattery, and with such life, as the hearers were so ravished with it that they plucked the roses off from their garlands, and threw them upon him; as the manner of applauses then was. Alexander was not pleased with it, and by way of discountenance said, It was easy to be a good orator in a pleasing theme: "But," saith he to Callisthenes, "turn your style, and tell us now of our faults, that we may have the profit, and not you only the praise ;" which he presently did with such a force, and so piquantly, that Alexander said, The goodness of his theme had made him eloquent before; but now it was the malice of his heart, that had inspired him.
1. Sir, I shall not fall into either of those two extremes, concerning the laws of England; they commend themselves best to them that understand them; and your Majesty's chief justice of your bench hath in his writings magnified them not without cause: certainly they are wise, they are just and moderate laws; they give to God, they give to Caesar, they give to the subjects, that which appertained. It is true, they are as mixt as our language, compounded of British, Roman, Saxon, Danish, Norman customs. And as our language is so much the richer, so the laws are the more complete: neither doth this attribute less to them, than those that would have them to have stood out the same in all mutations; for no tree is so good first set, as by transplanting.
2. As for the second extreme, I have nothing to
do with it by way of taxing the laws. I speak only by way of perfecting them, which is easiest in the best things: for that which is far amiss hardly receiveth amendment; but that which hath already, to that more may be given. Besides, what I shall propound is not to the matter of the laws, but to the manner of their registry, expression, and tradition: so that it giveth them rather light than any new nature. This being so, for the dignity of the work I know scarcely where to find the like: for surely that scale, and those degrees of sovereign "honour, are true and rightly marshalled; first the founders of states; then the lawgivers; then the deliverers and saviours after long calamities; then the fathers of their countries, which are just and prudent princes; and lastly, conquerors, which honour is not to be received amongst the rest, except it be where there is an addition of more country and territory to a better government than that was of the conquered. Of these, in my judgment, your Majesty may with more truth and flattery be entitled to the first, because of your uniting of Britain and planting Ireland; both which savour of the founder. That which I now propound to you, may adopt you also into the second: lawgivers have been called "principes perpetui;" because as bishop Gardiner said in a bad sense, that he would be bishop a hundred years after his death, in respect of the long leases he made: so lawgivers are still kings and rulers after their decease, in their laws. But this work, shining so in itself, needs no taper. For the safety and convenience thereof, it is good to consider, and to answer those objections or scruples which may arise or be made against this work.
Obj. I. That it is a thing needless; and that the law, as it now is, is in good estate comparable to any foreign law: and that it is not possible for the wit of man, in respect of the frailty thereof, to provide against the uncertainties and evasions, or omissions of law.
Resp. For the comparison with foreign laws, it is in vain to speak of it; for men will never agree about it. Our lawyers will maintain for our municipal laws; civilians, scholars, travellers, will be of the other opinion.
But certain it is, that our laws, as they now stand, are subject to great uncertainties, and variety of opinions, delays, and evasions: whereof ensueth,
1. That the multiplicity and length of suits is great.
2. That the contentious person is armed, and the honest subject wearied and oppressed.
3. That the judge is more absolute; who, in doubtful cases, hath a greater stroke and liberty.
4. That the chancery courts are not filled, the remedy of law being often obscure and doubtful.
5. That the ignorant lawyer shroudcth liis ignorance of law, in that doubts are so frequent and many.
6. That men's assurances of their lands and estates by patents, deeds, wills, are often subject to question, and hollow; and many the like inconveniences.
It is a good rule and direction, for that all laws, "secundum majus et minus," do participate of uncertainties, that followetli: Mark, whether the doubts that arise, are only in cases not of ordinary experience; or which happen every day. If in the first only, impute it to the frailty of man's foresight, that cannot reach by law to all cases; but if in the latter, be assured there is a fault in the law. Of this I say no more, but that, to give every man his due, had it not been for Sir Edward Coke's Reports, (which though they may have errors, and some peremptory and extrajudicial resolutions more than are warranted; yet they contain infinite good decisions, and rulings over of cases,) the law by this time had been almost like a ship without ballast; for that the cases of modern experience are fled from those that are adjudged and ruled in former time.
But the necessity of this work is yet greater in the statute law. For first, there are a number of insnaring penal laws, which lie upon the subject: and if in bad times they should be awaked and put in execution, would grind them to powder.
There is a learned civilian that expoundeth the curse of the prophet, " Pluet super eos laqueos," of a multitude of penal laws, which are worse than showers of hail or tempest upon cattle, for they fall upon men.
There are some penal laws fit to be retained, but their penalty too great; and it is ever a rule, That any over-great penally, besides the acerbity of it, deadens the execution of the law.
There is a farther inconvenience of penal laws, obsolete, and out of use; for that it brings a gangrene, neglect, and habit of disobedience upon other wholesome laws, that are fit to be continued in practice and execution; so that our laws endure the torment of Mezentius:
"The living die in the arms of the dead."
Lastly, There is such an accumulation of statutes concerning one matter, and they so cross and intricate, as the certainty of law is lost in the heap; as your Majesty had experience last day upon the point, Whether the incendiary of Newmarket should have the benefit of his clergy?
Obj. II. That it is a great innovation; and innovations are dangerous beyond foresight.
Resp. All purgings and medicines, either in the civil or natural body, are innovations: so as that argument is a common place against all noble reformations. But the truth is, that this work ought not to be termed or held for any innovation in the suspected sense. For those are the innovations which are quarrelled and spoken against, that concern the consciences, estates, and fortunes of particular persons; but this of general ordinance pricketh not particulars, but passeth tine strepitu. Besides, it is on the favourable part; for it easeth, it presseth not: and lastly, it is rather matter of order and explanation than of alteration. Neither is this without precedent in former governments.
The Romans, by their Decemvirs, did make their twelve tables, but that was indeed a new enacting or constituting of laws, not a registering or recompiling; and they were made out of the law s of the Grecians, not out of their own customs.
In Athens they had Sexviri, which were standing commissioners to watch and to discern what laws waxed improper for the time; and what new law did, in any branch, cross a former law, and so ex officio, propound their repeals.
King Lewis XI. of France had it in his intention to have made one perfect and uniform law, out of the civil law Roman, and the provisional customs of France.
Justinian the emperor, by commissions directed to divers persons learned in the laws, reduced the Roman laws from vastness of volume, and a labyrinth of uncertainties, unto that course of the civil law which is now in use. I find here at home of late years, that king Henry VIII. in the twentyseventh of his reign, was authorized by parliament to nominate thirty-two commissioners, part ecclesiastical, part temporal, to purge the canon law, and to make it agreeable to the law of God, and the law of the realm; and the same was revived in the fourth year of Edward VI. though neither took effect.
For the laws of Lycurgus, Solon, Minos, and others of ancient time, they are not the worse, because grammar scholars speak of them: but things too ancient wax children with us again.
Edgar, the Saxon king, collated the laws of this kingdom, and gave them the strength of a faggot bound, which formerly were dispersed.
The statutes of king Edward the first were fundamental. But I doubt, I err in producing so many examples: for, as Cicero saifh to Cresar, so may I say to your Majesty; "Nil vulgare te dignum videri possit."
Obj. III. In this purging of the course of the common laws and statutes much good may be taken away.
Resp. In all purging, some good humours may pass away; but that is largely recompensed by lightening the body of much bad.
Obj. IV. Labour were better bestowed, in bringing the common laws of England to a text law, as the statutes are, and setting both of them down in method and by titles.
Resp. It is too long a business to debate, whether "lex scripta, aut non scripta," a text law, or customs well registered, with received and approved grounds and maxims, and acts and resolutions judicial, from time to time duly entered and reported, be the better form of declaring and authorizing laws. It was the principal reason or oracle of Lycurgus, that none of his laws should be written. Customs are laws written in living tables, and some traditions the church doth not disauthorize. In all sciences they are the soundest, that keep close to particulars; and, sure I am, there are more doubts that rise upon our statutes, which are a text law, than upon the common law, which is no text law. But, howsoever that question be determined, I dare not advise to cast the law into a new mold. The work, which I propound, tendeth to pruning and grafting the law, and not to plowing up and planting it again; for such a remove I should hold indeed for a perilous innovation.
Obj. V. It will turn the judges, counsellors of law, and students of law to school again, and make them to seek what they shall hold and advise for law; and it will impose a new charge upon all lawyers to furnish themselves with new books of law.
Resp. For the former of these, touching the new labour, it is true it would follow, if the law were new molded into a text law: for then men must be new to ■ begin, and that is one of the reasons for which I disallow that course.
But in the way that I shall now propound, the entire body and substance of law shall remain, only discharged of idle and unprofitable or hurtful matter; and illustrated by order and other helps, towards the better understanding of it and judgment thereupon.
For the latter, touching the new change, it is not worthy the speaking of in a matter of so high importance; it might have been used of the new translation of the Bible, and such like works. Books must follow sciences, and not sciences books.
The work it- This work is to be done, to use some
self; and the few words, which is the language of way to reduce .
and recompile action and effect, in this manner. England. It consisteth of two parts; the digest
or recompiling of the common laws, and that of the statutes.
In the first of these, three things are to be done:
1. The compiling of a book " De antiquitatibus juri s."
2. The reducing or perfecting of the course or corps of the common laws.
3. The composing of certain introduclive and auxiliary books touching the study of the laws.
For the first of these, all ancient records in your Tower, or elsewhere, containing acts of parliament, letters patents, commissions, and judgments, and the like, are to be searched, perused, and weighed: and out of these are to be selected those that are of most worth and weight, and in order of time, not of titles, for the more conformity with the yearbooks, to be set down and registered, rarely in heec verba: but summed with judgment, not omitting any material part; these are to be used for reverend precedents, but not for binding authorities.
For the second, which is the main, there is to be made a perfect course of the law in gerie temporis, or year-books, as we call them, from Edward the First to this day: in the compiling of this course of law, or year-books, the points following are to be observed.
First, All cases which are at this day clearly no law, but constantly ruled to the contrary, are to be left out; they do but fill the volumes, and season the wits of students in a contrary sense of law. And so likewise all cases, wherein that is solemnly and long debated, whereof there is now no question at all, are to be entered as judgments only, and resolutions, but without the arguments, which are now become but frivolous: yet for the observation of the deeper sort of lawyers, that they may see how the law hath altered, out of which they may pick sometimes good use, I do advise, that upon the first in time of those obsolete cases there were a memo
randum set, that at that the law was thus taken, until such a time, &c.
Secondly, "Homonymias," as Justinian calleth them, that is, cases merely of iteration and repetition, are to be purged away: and the cases of identity, which are best reported and argued, to be retained instead of the rest; the judgments nevertheless to be set down, every one in time as they are, but with a quotation or reference to the case where the point is argued at large: but if the case consist part of repetition, part of new matter, the repetition is only to be omitted.
Thirdly, As to the "Antinomies," cases judged to the contrary, it were too great a trust to refer to the judgment of the composers of this work, to decide the law either way, except there be a current stream ofjudgments of later times; and then 1 reckon the contrary cases amongst cases obsolete, of which I have spoken befdre: nevertheless this diligence would be used, that such cases of contradiction be specially noted and collected, to the end those doubts, that have been so long_ militant, may either, by assembling all the judges in the exchequer chamber, or by parliament, be put into certainty. For to do it, by bringing them in question under feigned parties, is to be disliked. "Nihil habeat forum ex scena."
Fourthly, All idle queries, which are but seminaries of doubts, and uncertainties, are to be left out and omitted, and no queries set down, but of great doubts well debated, and left undecided for difficulty; but no doubting or upstarting queries, which though they be touched in argument for explanation, yet were better to die than to be put into the books.
Lastly, Cases reported with too great prolixity would be drawn into a more compendious report; not in the nature of an abridgement, but tautologies and impertinences to be cut off: as for misprinting, and insensible reporting, which many times confound the students, that will be obiter amended; but more principally, if there be any thing in the report which is not well warranted by the record, that is also to be rectified: the course being thus compiled, then it resteth but for your Majesty to appoint some grave and sound lawyers, with some honourable stipend, to be "reporters for the time to come, and then this is settled for all times.
For the auxiliary books that conduce to the study and science of the law, they are three: Institutions; a treatise "De regulis juris;" and a better book "De verborum significationibus," or terms of the law. For the Institutions, I know well there be books of introductions, wherewith students begin, of good worth, especially Littleton and Fitzherbert's "Natura brevium;" but they are no ways of the nature of an institution; the office whereof is to be a key and general preparation to the reading of the course. And principally it ought to have two properties; the one a perspicuous and clear
* This constitution of reporters I obtained of the king, after I was chancellor; and there are two appointed with £1U0 u year a piece stipend.