402 ADVANCEMENT OF LEARNING 



bend 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 

 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 mat 

 ters, 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, praetorial, or courts of equity. 



XXXIY. 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 praetorial courts should 

 absolutely confine themselves to enormous and extraordinary 

 cases, without invading the ordinary jurisdictions; lest other 

 wise the law should rather be supplanted than supplied. 



XXXVII. These jurisdictions should reside only in su 

 preme 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 pro 

 duce the reasons of their sentence openly and in full audi 

 ence of the court; so that what is free in power may yet be 

 limited by regard to fame and reputation. 



