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Precedents and the use of forms 



21. II. We come next to precedents ; from which justice may be de- 

 rived 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. 



22. 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. 



23. 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. 



24. 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. 



25. 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. 



26. Beware of fragments and epitomes of examples, and rather con- 

 sider 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 pre- 

 carious, without an evident correspondence. 



27. 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. 



28. 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. 



29. 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. 



