CHAP. III.] COURTS OF CENSURE. 353 



is a certain infelicity, even among the best historians, that 

 they dwell not sufficiently upon laws and judicial proceed 

 ings ; 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 succeed 

 ing age, should not easily be received again when the same 

 case recurs; for it makes not so much in its favour that men 

 sometimes used it, as in its disfavour 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 

 nend the authority of former times to the service of the 

 present. 



Praetorian and censorian courts. 



XXXII. 3. There should be both courts and juries, to 

 iudge according to conscience and discretion, where the rule 

 of the law is defective ; for laws, as we before observed, can 

 not provide against all cases, but are suited only to such as 

 frequently happen : time, the wisest of ail things, daily in 

 troducing 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, prae- 

 torial, or courts of equity. 



XXXIV. The courts of justice should have jurisdiction 

 and power, not only to punish new offences, but also to in 

 crease 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 rigour of the law as to supply its 

 defects j 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 prsetorial courts should 

 absolutely confine themselves to enormous and extraordinary 

 cases, without invading the ordinary jurisdictions ; lest 

 otherwise the law should rather be supplanted than sup 

 plied. 



XXXVII. These jurisdictions should reside only in 

 supreme courts, and not be communicated to the lower; 



2 2 A 



