may be void of all effect, if you take imagination from the law; let it therefore be considered what this imagination is whereof we speak, that by the description thereof it be better known. It may thus appear unto us, fictio a supposal, or admittance of a thing to be, is legis adversus veritatem in re possibili ex justa causa dispositio, the disposing of the law against a matter of truth in a thing that is possible, grounded upon just cause: and there is great difference betwixt imagination and presumption, because fictio juris the imagination of law tantum operatur quantum veritas ipsa, in the conclusions and decisions of law, and the law maketh sometime ens ex non ente in intelligence, though not in existence: but præsumptio stat în dubio it is doubted of and yet it is accounted veritatis comes, the companion of truth, quatinus in contrarium nulla est pro-` batio. And the use of supposal or fiction in the law is only to supply that quod desideratur in facto, which is wanting in fact, ut ex ipsa producantur veri juris effectus, that true effects and conclusions of law may proceed from it. The logicians say, that the universals are not in rerum natura, for if they were, they should be monstra; for an universal man, or an universal tree, comprehending in it all trees, is rather by understanding to be comprended than by sense to be compassed, yet I would not have any imagination to be used, but where equity and the orderly coherence of things doth require it. CHAP. VII. THAT THE STUDENT OUGHT WELL TO CONCEIVE THE REASON AND JUSTICE OF THE LAW IN DISTINGUISHING AND ESTABLISHING THE PROPERTY AND COMMUNITY OF THINGS. THE end and effect of the law is to settle the property and right of things in them to whom they belong: And to judge those things common which continuance of time and the intercourse of parties hath distributed and warranted to many, for if all things should be common, there should be nothing in order, and if nothing should be common, men would hardly be kept in duty, for then should friendship, society, and conversation, the comforts of mankind, fail, which would turn the whole commonweal into wilderness: therefore the most prudent and politic law-makers have thought it most convenient, that betwixt these two extremities a middle and even course should be taken, whereby property might be retained, and yet community preserved. Plato, because once he was of opinion that all things ought to be common, hath therefore many blows of his scholar Aristotle writing against him in his politics, in which book he hath a learned difference, that all that be common xpro in use but not x in possession and title, which notwithstanding is not generally and indefinitely to be admitted, because then it tendeth to the overthrow and utter subversion of all common-weals: But Plato being after better advised did retract his former opinion, and laboureth to confute it: for in his Book of Laws he writeth in one place, Let every man have the free use and possession of his goods by law, whether he be citizen or stranger, * and in another place: The distinction of demesnes, inheritances, and titles, is the foundation of all private contracts, which must be severely established by law therefore meum and tuum ought to be in every common-weal*. And again, let the inheritances and properties of things be definite and certain in every common-weal, and let a certain manner of purchasing them be prescribed by law †. Thus it is evident that a distinct property of things is commodious and convenient for the good administration of a commonweal: It is of two sorts, either an absolute and indefeasible property, or else a qualified property and sub modo. An absolute property is such which is not in any sort subject to the claim of any other: but a qualified property is that, which one man my claim after one sort, and with a certain limitation, and another may claim after another manner, and 'without limitation: As if a man hire beasts of another to manure his land for a certain term, he that hireth them hath a property in the beasts * Plat. lib. 12. de legib. |