The things that make a good judge, or good interpreter of the laws, are, first, a right understanding of that principal law of nature called equity; which depending not on the reading of other men’s writings, but on the goodness of a man’s own natural reason, and meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon. Secondly, contempt of unnecessary riches, and preferments. Thirdly, to be able in judgment to divest himself of all fear, anger, hatred, love, and compassion. Fourthly, and lastly, patience to hear; diligent attention in hearing; and memory to retain, digest and apply what he hath heard.
Divisions of law.
The difference and division of the laws, has been made in divers manners, according to the different methods, of those men that have written of them. For it is a thing that dependeth not on nature, but on the scope of the writer; and is subservient to every man’s proper method. In the Institutions of Justinian, we find seven sorts of civil laws:
1. The edicts, constitutions, and epistles of the prince, that is, of the emperor; because the whole power of the people was in him. Like these, are the proclamations of the kings of England.
2. The decrees of the whole people of Rome, comprehending the senate, when they were put to the question by the senate. These were laws, at first, by the virtue of the sovereign power residing in the people; and such of them as by the emperors were not abrogated, remained laws, by the authority imperial. For all laws that bind, are understood to be laws by his authority that has power to repeal them. Somewhat like to these laws, are the acts of parliament in England.
3. The decrees of the common people, excluding the senate, when they were put to the question by the tribune of the people. For such of them as were not abrogated by the emperors, remained laws by the authority imperial. Like to these, were the orders of the House of Commons in England.
4. Senatus consulta, the orders of the senate; because when the people of Rome grew so numerous, as it was inconvenient to assemble them; it was thought fit by the emperor, that men should consult the senate, instead of the people; and these have some resemblance with the acts of council.
5. The edicts of prætors, and in some cases of ædiles: such as are the chief justices in the courts of England.
6. Responsa prudentum; which were the sentences, and opinion of those lawyers, to whom the emperor gave authority to interpret the law, and to give answer to such as in matter of law demanded their advice; which answers, the judges in giving judgment were obliged by the constitutions of the emperor to observe: and should be like the reports of cases judged, if other judges be by the law of England bound to observe them. For the judges of the common law of England, are not properly judges, but juris consulti; of whom the judges, who are either the lords, or twelve men of the country, are in point of law to ask advice.
7. Also, unwritten customs, which in their own nature are an imitation of law, by the tacit consent of the emperor, in case they be not contrary to the law of nature, are very laws.