Precedents and the use of forms

XXI. 2. We come next to precedents; from which justice may be derived where the law is deficient, but reserving custom, which is a kind of law, and the precedents which, through frequent use, are passed into custom, as into a tacit law; we shall at present only speak of such precedents as happen but rarely, and have not acquired the force of a law, with a view to show how and with what caution a rule of justice may be derived from them when the law is defective.

XXII. Precedents are to be derived from good and moderate times, and not from such as are tyrannical, factious, or dissolute; for this latter kind are a spurious birth of time, and prove more prejudicial than instructive.

XXIII. Modern examples are to be held the safest. For why may not what was lately done, without any inconvenience be safely done again? Yet recent examples have the less authority; and, where things require a restoration, participate more of their own times than of right reason.

XXIV. Ancient precedents are to be received with caution and choice; for the course of time alters many things; so that what seems ancient, in time may, for disturbance and unsuitableness, be new at the present; and therefore the precedents of intermediate times are the best, or those of such times as have most agreement with the present, which ancient times may happen to have more than later.

XXV. Let the limits of a precedent be observed, and rather kept within than exceeded; for where there is no rule of law, everything should be suspected: and therefore, as this is a dark road, we should not be hasty to follow.

XXVI. Beware of fragments and epitomes of examples, and rather consider the whole of the precedent with all its process; for if it be absurd to judge upon part of a law without understanding the whole, this should be much rather observed of precedents, the use whereof is precarious, without an evident correspondence.

XXVII. It is of great consequence through what hands the precedents pass, and by whom they have been allowed. For if they have obtained only among clerks and secretaries, by the course of the court, without any manifest knowledge of their superiors; or have prevailed among that source of errors, the populace, they are to be rejected or lightly esteemed. But if they come before senators, judges, or principal courts, so that of necessity they must have been strengthened, at least by the tacit approval of proper persons, their dignity is the greater.

XXVIII. More authority is to be allowed to those examples which, though less used, have been published and thoroughly canvassed; but less to those that have lain buried and forgotten in the closet or archives: for examples, like waters, are wholesomest in the running stream.

XXIX. Precedents in law should not be derived from history, but from public acts and accurate traditions; for it is a certain infelicity, even among the best historians, that they dwell not sufficiently upon laws and judicial proceedings; or if they happen to have some regard thereto, yet their accounts are far from being authentic.

XXX. An example rejected in the same, or next succeeding age, should not easily be received again when the same case recurs; for it makes not so much in its favor that men sometimes used it, as in its disfavor that they dropped it upon experience.

XXXI. Examples are things of direction and advice, not rules or orders, and therefore should be so managed as to bend the authority of former times to the service of the present.