Prætorian and censorian courts

XXXII. 3. There should be both courts and juries, to judge according to conscience and discretion, where the rule of the law is defective; for laws, as we before observed, cannot provide against all cases, but are suited only to such as frequently happen: time, the wisest of all things, daily introducing new cases.

XXXIII. But new cases happen both in criminal matters, which require punishment; and in civil causes, which require relief. The courts that regard the former, we call censorial, or courts of justice; and those that regard the latter, prætorial, or courts of equity.

XXXIV. The courts of justice should have jurisdiction and power, not only to punish new offences, but also to increase the penalties appointed by the laws for old ones, where the cases are flagrant and notorious, yet not capital; for every enormous crime may be esteemed a new one.

XXXV. In like manner, the courts of equity should have power as well to abate the rigor of the law as to supply its defects; for if a remedy be afforded to a person neglected by the law, much more to him who is hurt by the law.

XXXVI. Both the censorial and prætorial courts should absolutely confine themselves to enormous and extraordinary cases, without invading the ordinary jurisdictions; lest otherwise the law should rather be supplanted than supplied.

XXXVII. These jurisdictions should reside only in supreme courts, and not be communicated to the lower; for the power of supplying, extending, or moderating the laws, differs but little from a power of making them.

XXXVIII. These courts of jurisdiction should not be committed to a single person, but consist of several; and let not their verdict be given in silence, but let the judges produce the reasons of their sentence openly and in full audience of the court; so that what is free in power may yet be limited by regard to fame and reputation.

XXXIX. Let there be no records of blood, nor sentence of capital crimes, passed in any court, but upon known and certain laws: God himself first pronounced, and afterward inflicted death. Nor should a man lose his life without first knowing that he had forfeited it.

XL. In the courts of justice, let there be three returns of the jury, that the judges may not only lie under no necessity of absolving or condemning, but also have a liberty of pronouncing the case not clear. And let there be, besides penalty, a note of infamy or punishment by way of admonishing others, and chastising delinquents, as it were, by putting them to the blush with shame and scandal.

XLI. In courts of justice, let the first overtures and intermediate parts of all great offences be punished, though the end were not accomplished. And this should be the principal use of such courts; for it is the part of discipline to punish the first buddings of offences; and the part of clemency, to punish the intermediate actions, and prevent their taking effect.

XLII. Great regard must be had in courts of equity, not to afford relief in those cases which the law has not so much omitted as despised for their levity, or, for their odiousness, judged unworthy of a remedy.

XLIII. But above all, it is of the greatest moment to the certainty of the laws we now speak of, that courts of equity keep from swelling and overflowing, lest, under pretence of mitigating the rigor of the law, they should cut its sinews and weaken its strength by wresting all things to their own disposal.

XLIV. No court of equity should have a right of decreeing against a statute, under any pretext of equity whatever; otherwise the judge would become the legislator, and have all things dependent upon his will.

XLV. Some conceive the jurisdiction which decrees according to equity and conscience, and that which proceeds according to strict justice, should be deputed to the same courts, while others would have them kept distinct; which seems much the better way. There will be no distinction of cases where there is a mixture of jurisdictions; but arbitration will at length supersede the law.

XLVI. The use of the prætor’s table stood upon a good foundation among the Romans, as that wherein he set down and published in what manner he would administer justice. According to which example, the judges in courts of equity should propose to themselves some certain rules to go by, and fix them up to public view: for as that law is ever the best, which leaves least to the breast of the judge; so is that judge the best, who leaves least to himself.