the feudal honorary ninrges Ãegne Kings Thane who held of the K. in chief that his land only was honorary Taineland that he held by service of personal attendance by service of an Office or military attendance he maks the ðeoden Medmera Ãegne or under Thane to be feudal too * Which sein Concil Sax. 406. Now in print and the same with a Vavassour out of the M S. of Athelstanes laws sometimes at the Library of St. James he cites Si Ceorlman prove batur ut habeat 5. hidos terrae ad ut Waram which should be utfaram expeditionem regis c. That is says he held of the King by knight service w Tit. Hon. 2. edit 622 624. In Doomesday tit Bockingham scire is Burchard Teigue 1. Baro Regis Edwardi That is Baron of King Edward Amongst the witnesses to the priviledge of King Aeiheldred granted to the Monastery of Christ Church in Ganterbury is Aethelmere the kings Discthene translated dapifer Leafric his braegel thene Master of the Wardrobe Siward the kings thene a t raed of his Councel x Concil 500 501. which certainly were Thanes or Barons by the service of these places We read of those in the Saxon Cronologie who served not n ordinary lived not continually at Court * v Sax. Cron. 534 543. or neer the kings person like those in the Confessors Chatters here yet are called the Kings Thenes The words are these And in those three yeers many of the kings most choice Thenes dyed amongst which were Suithulfe Bishop of Rochester and Ceolmund Alderman or Earle in Kent and Beorhtulf Alderman amongst the West-Saxons and Wulfred Alderman in Hamptonshire and Ealheard Bishop at Dorchester and Eadulf the kings Thane amongst the South Saxons and Beornwulf the Gerefe in Winchester and Ecgulf the kings Master of the Horse his horse Thene and many other of the most noble y Cronolog Sax. 545. Which I shall make yet more cleer when I come to speak of Hereot out of the Laws of King Cnut This Law is meant of the lesse or under Thane If any Thegne which in his bockland opposite to so cland which passed without writing hath a Church and a burial place c z Ll Edg. 2 to make it more full as before is said that the policie of these Germane Nations tended much to war the very ceorlâ—â— or plowman could not under such a penalty keepe at home when an Army was to march a Lâ— Ina. c. 52. and whosoever withdrew himself from the march forfeited all he had b Concil â— Aeâ—ham c. 24. if the king were in the expedition The Doomesday says In the City of Hereford The Burger serving with his horse when he dies The King shall have his horse and armes As there Wallingford in the time of King Edward the confessor conteined 276 hages or houses rendring ten pounds of rent or gable and who remained there performed the kings service with their horses or by water We finde in the Saxons times in a gift of lands reservations of services and creation of Tenures king Aelfred at peace with Guthrun the Dane whom he wins over to the Faith gives him the Provinces of the cast Angles and Northumberland to be possessed by Foedal and hereditary right c Concil Sax. 379. Asser men vens John Pik who writ in the reign of king Henry the first says king Aelfred gave these Provinces c. Vnder fealty of the King that he might preserve that by hereditary right which he had invaded by robbery Malmesbury relates this in the same words d de gest reg l. 2. c. 4. in the Chronology we finde Here Edmund the King wasted all Cumberland and gave it to King Malcolne king of the Scots on condition that by Sea and Land he should assist him in his wars ê§ he Æ¿aere his mid Æ¿yrhta that he were his fellow in action e Cronal Sâ—x in an 945. of the first of which Harding has To whom the King gave then all Eastenglond To hold of him the Lond. Malmesbury reports in the life of King Edgar That there came to his Court Kunadie King of Scots Maleolne king of Cumberland the arch Pirate Admiral Maccuf all the kings of the Welsh Dusual Gifreth Huual Hoel Dha Jacob and Judethil whom Edgar bound to himself in a perpetual oath f l. 2. 4. c. 8. v. tit Hon. which may be called Fealty Where the same Harding recites the beneficiary Clyents or Princes who had sworne Fealty sayes Mr. * Mare claus 280. Selden to king Cnut he addes So did the Kings of Wales of high Parage And all the North-West Ocean For their Kingdomes and their Lands than There is an example of the creation of knight service here before the Normans in the lives of the Abbots of St. Albans Then sayes the Monk in the time of Abbot Leofstane and Edward the Confessor The Chilterne a small country neer the Monastery was full of Woods in which lodged divers beasts wolves not then it seems extinct bores wild bulls and deere and which were more mischievous thieves out lawes banished men and fugitives Abbot Leofstane to the profit of this Monastery granted to a certain stout knight Thurnoth and to his two comerades Waldef and Thurman the Manner of Flamsted on condition that the said knight Thurnoth with his comerades forenamed and their heirs should preserve the west parts abounding most with thievs as well from noysome beasts as theeves and answer such losse as by their neglect should happen and if common war should happen with all their diligence and power defend the Church of St. Albans which they saith he and their heirs faithfully performed till king William conquered England then that Manor was taken from them because they would not endure the Norman yoke but a certain Noble man Roger of Thony to whom that Manor fell stoutly performed that service g Vit. Ab. 46 In Doomesday is said That the Church of holy Mary of Worcester has the hundred called Oswalds hawe in which lye 300 hides of which the Bishop of that Church from the constitution of antient times has redditiones socharum regis servitium suum Which is made Socage rents and knight service 3. Rep. Praef. In an old Charter of the age of Doomesday book are these words To Edwin and all the Teigues and Drenges and to all the men of St. Cuthbert of Goldinghamshire greeting the same as Sir Hen. Spelman with Barons knights and Freeholders In Domesd tit Cestresc Of this Manour another Land fifteen men whom they called Drenches for fifteen Manors held and tit eod in Villa Wallingtone To that Manor belonged thirty four Drenches and so many Maenors they had It is cleere so the Glossary that these Drenches were a kinde of vassals but not ignoble who held by knight service one of which Drenches he conceives Edwin in Norfolk whose posterity was after called Shireburn to have been who proving
some towardnesse collated the cases of both laws c. to shew that they both be raised of one foundation and differ more in language and terms then in substance and therefore were they reduced to one method as they easily saies he might they might be attained in a manner with one paines I make agreement no argument that lawes are the same where they have as t is said the same foundation but it may be an argument that where they agree in the foundation where the constitutions are neere the same where there are the same definitions and divisions of things they may be digested into a method alike Not to looke upon the twelve Tables we may finde a plain resemblance which I attribute to the foundation upon the Law of nature and Nations in these Lawes The Cornelian de sicariis veneficiis of murder poysoning firing houses de falso of forgery of all kinds of falsity Majestatis about taking arms raising forces c. the Cornelian de injuriis and Aquileian de damno of wrong trespasse damage battery done the Duilian Maenian de Coitionibus the Julian de vi of publike and private force Majestatis of high treason to which the Lutatian of publike force may be added in the digests and clswhere are Laws of discents rights and possession covenants and obligations against deceit in bargaines theft receivers breaking of prison c. of * Code 11. nou 3.5 Collet Churchmen and their possessions c. Besides saying it may be so to make it plain that persons and things propriety of lands and goods acquisition of these rights injuries and actions publike and private offences Writs Courts pleas c. may be listed in order in our Law as wel as any other This most learned Doctor in his Institutions has done it but briefly and according to the fashion of the Imperial Institutions Who saith he shall think himself happy if he can provoke any man to undertake the larger Volumes And Sir Henry Finch in his excellent book called the Law There is extant an Analysis of the Common law done by a reverend Atturney general heretofore where our Law is so naturally methodised and so happily that not onely no law else but no Science whatsoever can excell it for the order though I know want of method in Lawes is no solid objection nor so considerable as to need an answer The illustrious Viscount in his Aphorismes of the Law is of this judgement speaking of regeneration and new structure of Lawes he would have he sayes the words and text reteined and things orderly done Yet he addes in Laws neither stile nor description but authority and the Patron of it antiquity are to be regarded otherwise as he such a work would seem rather something of the Schooles and a method then a body of commanding Laws c Aphoris 62. Neither the Philosophers of old nor their admirers now are to be heeded in these things they may propose things specious but they are every where remote and farre off from use the onely notion our ancient Lawgivers and professors of the Laws intended The most of the Law is Historically related in Annals or yeer-yeer-books where the judgements of the Courts in the severall Terms of the yeers are reported as faithfully as they were given according to the true account of time as things fell out in which no method is requisite or can be more then in Histories where all things of the same kind are not ranged together but are set down as they were done And every Commentator must follow his text as he is lead But those who have writ of one certain subject not miscellanists have curiously enough observed this part And where the Annals of the Law which could not be otherwise as is said are thought to scatter things too carelesly The cases in them are abridged and digested under proper heads and titles By Statham Justice Fitzberbert and Sir Robert Brooke as the Statutes are by Justice Rastall c. so that there can be no reason for these complaints These objections onely shew a willingnesse to hurt but are short of doing it Principles of the lawes Lawes are to be tried and examined by their principles if there be any thing unsound there and dishonest too cruel and inhumane they may justly be taxed A Doctor of both the Lawes speaks thus of the Canon law The Canon law is nothing but an beap of ingenious precepts of avarice under the shew of piety few things in it are directed to religion and worship many are contrary and repugnant to them the rest are wranglings strife businesse onely of pride and gain fancies of Popes who have accumulated upon the Canons of the holy Fathers decrees chaff of the Extravagants deelaratories rules of the chancery giving those at Rome power to absolve from obedience break leagues dispence with oathes with the law of nature enough as he to make of the house of prayer a den of thieves d Van scient Here is something said for the sanctions of the sacred Law of the land may justly be said contrarily they commands all those things which are most honest and most just if there were no precept while some other Lawes allow directly the same things against God nature and reason which ours forbid as Incest among the Persians of the brother and sister was more then indifferent cōmunion of women praised by Plato e Repub. 4. amongst our families of love lending wives amongst the Spartanes Polygamie amongst the Mahumetanes and others with the unnaturall love of boyes which a Frenchman calls the ordure of the Greeks the bearded Philosophers approved it Plutarch censures not Agesilaus for it Adultery was commended by the example of their Gods Thieving among the sober Spartanes as Gellius cals them and Aegyptians and sleight of the hand from the greenest youth was honourably allowed by the Lawes of Licurgus not for base gaine but for discipline of warre as he all their policy was directed to the wars Piracy and robbery have been glorious no where heretofore amongst the Grecians in disgrace saies Thucydides This is manifest by some that dwell on the continent saies he amongst whom so it be performed nobly it is still esteemed as an ornament The ancient Poets introduce men questioning such as sail by on all coasts alike whether they be thieves or no as a thing neither scorned by those who were asked nor upbraided by those who would know much of Greece uses that old custom as the Locriozolae the Acarnanians and those of the Continent in that quarter to this day f Thucyd. l. 4 v. Justinum l. 44. Private robbery the Romans suffered not but publikely no men robbed more so that as one of their own if they had restored what they unjustly took away from others they must every man have returned to his Cotage again revenging of wrongs and feudes are much esteemed by Aristotle and Cicero exposing of infants slaves freed or sick men
of it Many great Families have been advanced by the Law many of the best and noblest thought it no disparagement to professe it Some of our illustrious names may be met with amongst the Serjeants and Apprentices of our yeere books as well as in the Heralds books If like Boccace his Ghost all those who laid the foundations of their houses who first broke through the miste of time wherein they and their ancestors were hid before who first shewed their names to the world were to appeare before us in the habit of their sprouting up with all their sordid cheats with all the crafts several close arts of thriveing used by some displayed and revealed all the false sleights of the Town and Country laid open where every peny is got oftentimes too too dishonestly by the unworthiest sins a man can commit how would the gawdy off-spring curse his own rise the branch be ashamed of its own root vertue alone is honourable mony can neither make men wise valiant nor good Arts and Armes onely and really innoble that of all others most deservedly whose object is meerly the good of mankind which imployes men continually for the publique for the preservation of the people pacique imponere morem The souldier as Cicero may once profit his Country the Lawyer always Our most Reverend Judges and professors of the Laws have in all ages * Anciently part of the Persian kings title The ophyl risen with the Sun and given eyes to the blinde night But I have offered my selfe too far to ingrateful dangers Here I will stop and give over Not that much is not left out which might have been said of the sacred Law of the Land and the administration of Justice here Much is left out and I wish some more happy and more able would undertake the whole It is enough which again I may protest that I speak not in the midst of Fetters and that I have defended and the defence could not but be easie truth onely for its own sake yet I believe he who knows most who commands most in language and Sciences who pretends justly a title to the kingdome of the barre or schooles with all his mouths and tongues if he had more then one hundred could not do full right would be short and wanting here Not in our right hands as is said of those souldiers in Curtius but in our Laws our helpe our hope and liberty lie We need not aske for propriety not for peace not for order concord security not for wealth nor honours one wish comprehends them all carries all these with it the safety of the laws is all these propria haec sidona We have seen at large what excellent blessings we have received from the Law these blessings may be everlasting if that be made so I know nothing it ought to yield to and our Parliaments have thought so but eternity and the change by that FINIS The Table A. AIde to Knight the eldest son c. 127 Alodium alodiaries 129 130 c. Aelfred the King not the founder of the Saxon policy 85 86 Aequity and judging according to equity how to be understood 31 32 Aescuage 127 149 Aldermen amongst the Saxons 98 B. Barons Norman and English ever lovers of the Laws 107 280 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Bocland 140 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Britannie and the Britains under the Romans 71 72 73. The Civil Law the first Law heard of them amongst them 73 74 governed by Kings 72 C. Casars Commentaries l. 6. concerning the Gaules and their wives 75 L. Chancellours Oath 65 Chiefe Justice the greatest subject 159 288 289 Church highly favoured by Lawes 273 274 Circuits of the Iudges 163 Civilians what opinion they have of the Pandects c. 226 Clergy men heretofore Lawyers 292 Cnut the king composed the law called the law of St. Edward 88 Counsellours 175 Courts of Iustice are of Saxon original 94 95 96 Courts since 159 160 c. Courts standing and ever open 165 166 Customes unwritten why 89 D. Delayes odious in the law 169 170 c. De rerum venditione that constitution set forth at Yorke 74 Drenches 143 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Duilian baâ—k 218 E. Earles amongst the Saxons 98 Edilinges 140 Edward the third first changed the Welsh lawes 76 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 200 Eleutherius his Epistle to Llever Maur a forged piece 73 F. Faulehen what 124 Feudes 121 Firdfare 149 Foleland 129.152 Forstale 134 Frankalmoigne 127 Frankleudes 129 130 The French Policie and ours much alike 126 Fyheren 124 Frilinges 126 Fundi limitrophi 119 G. Gavelkinde in Germany 125 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Germanes and their institutions have overâ—â—owen all Europe 78 79 80 Their lawes called salic more antient then Justinian 81 Glebal gold 120 Adscriptitius ibid. Grithbrece 134 H. Henry the eight imposed wholely the English lawes upon the Welsh 77 Heinfare 145 Hereban 150 Herefare 127 143 Hereot 127 14 High Court of Iustice 97 159 Hotoman his censure of Littleton 240 I. Infangennethiefe 134 Iudges not to decide causes according to discretion how to be intended 32 33 Their authority 199 c. Assistants to Kings and Parliaments there heretofore Barons 290 Honoured 292 293 Iuries tryals by them not brought in by the Conquerour 92 93 Iustice to obey laws 33 K. Kings of Macedon ruled by law 24 Of Mexico might not be touched 45 Kings of England their Oath 111 Might free men from the Firdfare Burgbote c. 151 Kisses given to Princes 118 L. Laudamentum 124 Laws the enemies of them 1 2 Necessity of them 18 35 Law what it is 34 35 Force is not law 23 24 25 Nor the arbitrary will of man 27 28 Why laws were written 30 31 How antient 35 Law of the land in Magna Charta is not waging law 50 51 Common Law 75 excells and may controle Statute laws ibid. Custome and expirience begot it 60 61 It is known and to be found in books 60 65 66 67 Its antiquity not Norman c. 64 c Laws of Hoel Dha and the Welsh 76 77 Salie Laws 86 81 82 The Saxon laws 84 the several kinds 88 Our fundamental laws Saxon 90 91 known by the name of St. Edwards laws 100 101 102 104 setled in the great Chaster 108 110 then called Common Law Letters of the Ionians and Phaenicians heretofore neer the same 37 Loudes 131 Liberty what is 45 46 c. Littleton vindicated 240 241 Lombards their laws 84 M. Manners and priviledges belonging to them amongst the Saxons 133 Method of our law 243 N. Normans themselves ever zealous for the laws of St. Edward 135 107 108 They as some received their lawes from the Saxons 112 O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 120 Operae liberterum 119 P Papinian Judge at York 74 Papists ever enemies to the lawâ—s 67 Parkes 136 Plea of Pinneden under Will the 1. 104 Pleadings 209 Polydore Virgil 92 93 Propriety 2 3 R Rectories and glebe-land whence 151 Reliefe 127 131 147 S Salbuch in Germany 83 Saxons their policy and government 85 86 Sac. 134. The Saxons subverted all things 77 78 Saxon tongue 215 216 217 Sicyon never changed her lawes in 740. yeers 53 Slaves thrown to Lampries 252 Soc 134 Socage 129 Spaniards retain the German customs 128 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 120 Subverters of the laws 66 67 T Team 134 135 Tenures all Europe ever 118 Reasons of them 119 120 All lands held of the King 149 Terms of the law 213 c. Thanes Thenes 137 138 c. Tol 134 Tribonian censured by Perrinus 226 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 V Vassi dominici 125 Vicedominus 99 Villeins 153 154 Vtwara W William the 1. his entry not so violent as is thought by some 143 144 Writs whence they issue 162. See 207 c. anciently the Kings letters there No man to answer or be called in question without a Writ 209 FINIS
admirable not at all the more unhappy for it I know no reason why the same words should be thought unhandsome in our law and elegant and beautiful in another and as laws which is noted if all the hast imaginable were made for a change could not in our daies arrive at that fulnesse and excellency to comprehend and redresse thousands of those wrongs which now we finde remedies for The decemviri imployed about the Tables thought they could have comprised all accidents they fell short in their account all the bookes in the world saies Bodin cannot comprehend every case which may happen for after all the additions possible it wil be found that perfection of lawes must be the labour of ages and that experience is the best and onely happy Lawgiver So would there be the same length of time required for the new termes Time is followed at the heeles by corruption and ere our descendents shall make up what we shall leave imperfect if our change be not disliked and changed by them they that shall invent the last terms perhaps without some key or other wil not be able to understand the first The length and change of time will make the next as obscure as these if we look upon our own language and not so far back as Robert of Gloucester and others of the most ancient English writers if Sir Geofry Chaucer and John of Lidgate be compared who calls him master and betwixt whom there are not many yeeres it may be seen how quickly it altered as since the raigne of King Henry the eight we know it has sufficiently changed again It was the observation of the illustrious Viscount that books writ in modern Tongues could not be long lived he expresses it in the term for bankrupts cito decocturos they would quickly break which was the reason why he caused that most excellent piece his Augmentation of Sciences to be translated into Latine c. So that I cannot yet finde why the antiquity of our termes should be a cause of change It is ridiculous to think otherwise The Lawyer must speak the words of the Law nor can the proces and forms of the bar be expressed in neat and fine language Cicero l. 1. de Orat. Orat. pro Caetin Gell. l. 20. c. 10. de voc ab ex jure manuÌ„ consertum Cicero himselfe is observed in matters of Law to speak like a Lawyer ordinarily using the terms Ennius does the same in those Pellitur e medio sapientia vi geritur res Spernitur orator bonus horridus miles amatur c. Nou ex jure manum consertum sed mage ferro Rem repetunt regnumque petunt vadunt solida vi * l. 16. c. 10. And in this Proletarius publicitus scutoque feroque c. And as no other Law can gain any thing of ours in reason as little can they gain of us in phrase if the stile be compared with the purity of the speech they are written in the stile of the Imperial laws with the purer Latin This I wil illustrate only with the designe to make it cleare that this homelinesse of ancient habit is not a rude fashion taken up alone by our Law I wil observe somewhat of the Civil Law out of the professors of it that we may see our Lawes onely have not been censured are not onely subject to censure Perinus in Justinians life runnes in a long invective against Tribonian as he is called the architect of the Pandects and of the whole Law whom out of Suidas he calls wicked impious a contemner of Religion far from Christianity a deceiver and fraudulent perswading the Emperour that he should be assumed like Enoch corrupt basely covetous so that the law lost much in the infamy of so wicked and pestilent an author Where he speaks of the Laws he saies Tribonian and his fellowes were like cruell Chiriergions who cut to the quicke and which he cites Budaeus for That they have left the Pandects rather curtailed then compendious fearing out of superstition dregs and things obsolete they have heaped up matter out of the drier volumes and drawn that which wil not quench any mans thirst So that as he goes on in the framing the Pandects you would rather think they slept then that they digested any thing rightly and compendiously Justinian in the Proem to his Institutions supposes an huge confusion before callâ— this a desperate worke and walking in the middest of the deep The body of it then was confused of infinite extent sayes the Glosse The Code sayes Sis Th. Ridlye a Civilian is a barbarous Thracian phrase latinised such as never any mean Latinist spake for themethod it is rude unskilfull where it departeth from the Digests yet the knowledge of it is more expedient then the knowledge of the Digests because it determineth neteers in daily use of life f View of the Civil and Eccles law The Digest is said to differ but little from the best Romane speech but what it has in words it wants in substance as the same Knight the learning of it stands in discussing subtile questions and enumeration of opinions in which there is more wit then profit Againe this Digest or Pandect as an old Glosse strangely a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 totum * c. Pandectarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 doctrina which is said to be drawn out of 150000. or as others 300000. verses of the old Law indigested and abolished needed exposition and amendment The Compilers were not so quicksighted but that sundry antinomies as this Knight and Budaeus or contrary laws past them they were too subtily Writ and needed explaining besides in the Digest every case falling out in common use of life was not decided for it is enough that Lawes look upon that which is likely most often to happen nor as our Knight was it possible every moment new matter fals out for which former Lawes made no provision which was the reason why the Code was set forth and why the Athenticks or Novelles followed Being the Princes resolution of doubts confusedâ—y put out as the Civilians abroad confesse g V. Lex Ju. Civ ve bo Novellae The Feudes as the same knight were drawn partly out of the Civil Law partly out of the Customes of Millain but without either form or order h Ib. View 69. before the Cornelian Law of Jurisdiction of the Praetors they were wont led away wich covetousnesse or ambition out of favour or spight variously to give judgement Changing and altering the laws they had set forth in writing The Cornelian law commanded i Dio. Cuss l. 36. 1 That in the entry to their office They should publish what law they would use and observe it I will not say there is any such incertainty now yet where there are so many Doctors interpreting the Text so many Comments such multituddes again interpreting them without a miracle there cannot but be
the Law yet no where in it I think once naming our most reverend Judge Litleton He cals the Laws in just and the Lawyers or interpreters of them ignorant speaking of those of the time of William the 1. upon a supposition that the most of the Lawes were Normanne He and his book are said to be of great account by Dr. Cowel in as much esteem with the students of the Common law as Justinians Justitutes are with the Civilians saies the famous Clarencieux The Lord Coke sayes This is as absolute a booke and as free from errour as ever was writ of humane learning y Pres upon Littlet r. 2.67 r. 10. Epist according to the Judgement of a Court before Litletons word wil passe every where ipse dixit carries things as Master Fulbec Litleton is not the name of a Lawyer but of the Law it selfe more then can be said of any Civilian one or other Dr. Cowel blames his Civilians much that shey were not onely guests and strangers but infants in their own Commonwealth that the most know as little of our Law as the common people and I cannot imagine how by a sight of Litleton Hotoman should know much it is not unreasonable notwithstanding all his learning to suppose with Littleton alone he did not understand Litsleton it would be taken as justly it might either for foolishnesse or malice indeed the greatest possible for the highest impudence if any man so much a stranger to the terms and Language at the first sight meerly by guesse should as slightly condemne the Pandects full of contradictions and needing exposition and amendment as is before shewn out of the Civilians themselves whereas Littleton is as fundamentall as any Law can be and every sentence of his is a principle Nor can any man but wonder at the expression of malice and study to calumniate the book through by which we may see how it is understood being onely a bare collection of special cases under their titles or heads authentick and binding because it is made and composed partly of the customes of the ages before partly of the judgements of Courts and of the Statute lawes without any controversie with any man without any reflexion upon any other law upon any mans person or works saving that once he saies he had heard say There was one Judge Richel who setled an estate intaile with perpetuall remainders with that clause of perpetuities since used but against law that upon alienation of the eldest sonne c. his estate should cease c. meerly ayming at the publike good which makes me thinke here must either be a great mistake in the sense or of the book it selfe Litleton then was not Litleton now The uneven ruggednesse of the French wil not suffer any man to be eloquent Laws as Cicero ought to be be deare unto us and to be prised not for the words but for the publike profit and the wisdome of the Lawgiver Yet is not the stile of Litleton rude but plain as the best French then was plain enough neither neat nor quick as will appeare by the Lord of Argentons stile noted before who lived in our Judges age and writ then most befitting a Judge and the gravity of the subject To the absurdity of the writing part of the invective charged in the slander which is true as is shewn from testimonies of the side of the old glosses I wil reply but this it should have shewn how and where otherwise this is a generall charge which has nothing in it but the malignancy of an enemy from whose rash and unjust censure the happy memory of our Judge may justly appeale to those who know him It is a childish impotency of the mind out of vainglory to calumniate illustrious personages farre enough either from honesty or discretion The haughtinesse of Pompey to raigne alone is with the most nor is it fair to bequarrel and hate all other Nations because they drink not the Loire or Rosne or submit not to I know not what universality as if Alexanders world were returned again not to be ruled but by one Sun What concludes here and makes up the aggravation is extended farther by others and made a cavil it is no more against the Laws That our Laws want method Method never yet so much as a pretence to abolish laws How easily the Pandects may be matched for method I shall demonstrate by the order of the Common law of England After the Curiate laws of Romulus those of Numa concerning Religion the laws of the other Kings all taken into the books of Papyrius and therefore called the Civil Papyrian Laws the twelve Tables followed then the Flavian Helian and Hortensian the Honorary Law of the Praetor the lawes of the people called Plebiscita the decrees of the Senate called Senatusconsulta the law of the Magistrates and customes the laws of the Princes frō the law Royall the opinions of innumerable Lawyers many of which are recited by the second Law of the original of the Law their volumes were huge saies the Emperour z Proaem Instit 5. There were as the glosse three hundred thousand Verses Laws or answers two thousand books and many other Laws so confused so infinitely extended they were not to be shut up in the capaciousnesse of humane nature Out of all these were the Pandects composed and digested which are wel digested but as is said the Code and the Authenticks are not How much more easily might the Common law be ranged into an exact method may quickly be found not being composed of any such bulk not drawn out of any thousands of such answers and books inclosed in a dozen or two of small volumes exceeded in the quantity by the present Imperial lawes hundreds of times over the foundations of it as of all just and civil Lawes are the lawes of God of nature and reason and of Nations as Dr. Cowel Our Statutes and Customes are derived as all just laws else and consentaneous to reason from the Law of nature and of Nations a Inst jur Angl. 25. And again The lawes of England as others over the Christian world are far enough off from the civil Imperial law yet are they tempered seasoned with the equity of it b Praef. ad Inst In his Epistle dedicatory before the Institutions They are not far enough off * v. Chap. 2.50 here as very probably some of these Imperial lawes might come from Rome to the Saxons with their Religion There he speaks thus After I bad spent some yeeres in the comparison of these lawes viz. the Common and Imperial laws I found the same foundations in them both the same definitions and divisions of things rules plainly consentaneous neer the same constitutiom the difference onely being in the Ideome and method Our Common law is nothing but a mixture of the Roman and Feudal laws and in his Epistle to the Reader before his Interpreter he sayes He has in
is to buy by the lump tenuta seisin venter a woman with childe or as Alciate a posthumus fusiones publique Functions Whoso shall turn over the Laws of the Frankes Lombards Boiorians and other of the Teutonick Nations he will meet Mormoes and Goblins formidable indeed such as the most knowing glossaries must be contented to recite only or wisely to passe by in sacred silence which yet will be read by those who admire not themselves and their own age too much who will allow in some proportion both wisdom and civility to their forefathers and are curious to be satisfied how they lead their lives upon what policie and order the Empire of the German Franks Lombards rose and moved for however governments may begin Justice good lawes assure them give them vigour and continuance lasting violence had been a fire which suddenly would have burnt their Trophies these German Conquerours how fierce soever they seem in their first appearance of all which might be said which is related of Mezentius Dextra mihi deus c. Or the Quadi a part in that Eductis mucronibus quos pro numine colebant the sword was their deity spent the yeers of their entrance into their Provinces to compose mindes their first peace and rest from the turmoils of war was ever dedicated to the polishing and smoothing of those foundations which else laid with too hasty and too rough an hand would have fallen alone Augustus was more happy in his moderation then in his victories it might be thought he subdued his Country to preserve it his peace was so sweetned by the equity and clemency of his laws that all the calamities of the triumvirate and its proscriptions were forgotten no tears were left but such as the whole world powred out to his memory There is its honour due to antiquity yet there may be met with in the lawes of these people though they seem what Du Bartas speakes of Marots verse torne Monuments and age worne Images that policy and excellency of constitution which if we will not imitate perhaps we can never exceed It is observed for the honour of our English that an Earle of Arundel in his travels to Italy and the Lord William Howard in his Government of Calice although they understood other languages would not speak to any stranger but in their English And that Cardinal Woolsey in his French Embassie would not suffer his attendance to speak any tongue else to the French And I know not why our English where it is more pure and lesse corrupt where it is a mother tongue and the best Dialect of a mother tongue should not have the esteem it is worthy of It was made none of the least of venerable Bede's praises that he was learned in it A great man before mentioned rather transported with choller against som of the Profession and indirectly I thinke then out of his own judgement is very angry at the Law which he says cannot passe the Seas It were wonderful if it shou'd who looks that neighbourhood alone should make Nations like the same things I have shewn already what great agreement there is betwixt the French and us enough to make it evident they and we had but one stock in Constitutions more ancient then the Civill Law there and it takes off nothing though our Law would not be known in the Courts at Paris This Author grants no man he sayes can deny it it is a sacred both Thing and Title our professors wil not envy the learning of Brissonius his Lexicon or his formulae so much praised and it is confessed we cannot shew any Terms of law like them yet are ours to as much purpose they interpret the words of art of our homebred Lawes and I cannot tell what is to be required more All men may know that as there have been additionary Laws since the Saxons so have there necessarily been additionary termes since which according to the custome of the times when the Law began to speak French were French and when they began as good perhaps and as pure French as any then spoken The leagues and agreements concerning the Sea betwixt King Edward the first and other Princes shew what the old French was by these words soffrera souccours resceipts Pees Trewes subgitz forspris nadgairts c. x D. Seld. Ma. Claeus 267 276. The Lord of Argentons History much later manifests what the language was and how it has changed These terms are so enterwoven as the Lord Coke into the Lawes they cannot possibly be changed I wil appeal to any man who understands the modern French for many of them are yet retained by it whether any words can more aply hit the sense which these signifie there is a supposition where these objections lie that if the great Lawyers abroad should come hither much amazed they would stand at our voucher cited for a big word like to tear the ear but unluckily brought in it is yet in the French advocare to vouch call in aide in a suit and certainly was understood by some of the great Lawyers Rigaude and Bignon being such as had the word bene antique indeed would not have been amazed at it They were not confined within the knowledge of their own age onely what is much to Bignon's honour Sir Hen. Spelman acknowledges himselfe owing to him for many things in his Glossary Garrantie is the same yet with our Warranty Pleviner to plevin give surety saisine is yet seifin rebutter to repell as the heir with us is repelled by the Warranty of his ancestors Larcin is theft fellony robbery fee demain or domain prescription Escbet rent as we use them nampt is our naam halfe withernam a distresse briga with which by this author in another place the professours of our Lawes are reproached and have the stile of his barbarians has been continued amongst them ever since Edw. the 3. before which it was but rarely used yet is in the modern French viz. brigue for it signifying contention or wrangling The onely man abroad who may seem an adversary is Hotomanne a Civilian very learned but I believe not at all in our laws a man of a peevish heady temper who writ against his own State and fled for it yet is he not so much an enemy to the Laws of England as to Litleton's tenures the book so called which very probably he never understood in his Comentary of the feudall word in the word feudum he writes thus Stephane Pasquier a man of an excellent wit c. gave me an English Litleton in which the Laws of the English feuds are discoursed written so rudely absurdly and without method that it appeareth easily to be true which Polydore Virgil in the English History writes That foolishnesse in that book contends with malice and the study to calumniate Here is his own judgement seconded with the censure of that uncleane beast Polydore whofreely indeed as is said railes in that book against