no wonder that he should carry the name I shall speak more of this in my third chapter Hence from this time are our Laws called the Common laws the same in substance with those in use since The reason why our Saxon Books are so thin and have so few lines in them may be this Our ancestors had their unwritten customes such as they brought with them out of Germany which as since lived and were preserved in the memory of the people c V. c. 1. sup Gless D. Spelm. tit Lex Lomb. as well as their laws written After all this as we finde in the lawes of William the I. there was a difference in the estimation of men offending according to the customes of Provinces d Ll. Guil. 1 s 3 4. The punishment or mulct of breach of peace was forty shillings in the Mercian law fifty in the West Saxon c. He that will looke into the Saxon lawes will finde as clearly as can be considering the distance made by so much time which is but a distance of words the fundamentall stones of the building he shall finde freedome enough and peace every where provided for in the words of those Lawes the peace of God of the Church of Religion c. Lawes concerning Tythes and Church-rights c concerning Sacriledge false Witnesse Adultery Incest Fornication marrying a woman by force Perjury Slander Usury Murder Homicide where it is Chancemedly Robbery Theft of the Fly-man or Theefe who runs for it the receiver him that is taken in the manner Hondabend and Backberend Burglary Clandestine Sales vouching to warrant what is sold false rumours counterfeiting money change of goods just weights repaire of Castles Townes Bridges High-wayes waging Law Outlawry judging according to the dom bec * Vid. Ll. Ed. sen c. 1. or Judgement book one of which as as Asserius Menevensis Bishop of Shirburne a familiar of King Aelfred that King made but it is lost concerning Appeales when Justice was denied in the Hundred or too rigorously administred trespasses wrongs battery affraies incendiaries the wife of a thief pledges of good behaviour amercement of Townes for the escape of a Murderer the injust Judge those who will not serve those who injustly trouble the Owner of Lands who has good title those who change their place of abode Merchants rescue in most offences the punishment of a Freeman was pecuniary or losse of Liberty of a Slave by whipping The reason of which M. Lambard makes because of the rarenesse of offences then See Ch. 3 fighting in the Kings Palace breaking open houses and firing robbery open theft and aebermorþ manifest killing murder the same and from whence our word murder cometh and Treason against the Lord were capitall could not be expiated with money The Jury of twelve men is denied to be more antient then the Norman Conquest by M. Daniel In Will 1. and Polydore Virgil but with a great deal of bitter vehemence by the last who sayes there is no Religion in it but in the number with as much truth as that the same King William brought in the Justices of Peace or that Wardship began with Henry the third which King Johns Charter alone confutes or that the Hotspur Lord Percy was taken alive at the battell of Shrewesbury and lost his head by the axe which are his relations That this Triall is of English Saxon discent is manifest by the Laws of King Etheldred ordained at VVanating e C. 4. which speak thus In all Hundeeds let Assemblies be and twelve Freemen of the most antient together cùm praeposito f Ll. Ed. Sen. c. 5.11 in Saxon gerefa with the Reeve of the Handred shall sweare not to condemne the innocent nor absolve the guilty g Lamb. in verbo Centur D. 5 â—el in Juraâ—a Vid. Câ—asultum de Mâ—ntic Walliae c. 3. The reason of the great silence of this in the Saxon times is because the vulgar purgations the Ordiles were every where then in use The Norman who wrote the grand Customary in the beginning of it sayes the Confessor gave Lawes to the Normans when he was amongst them and in the first Chapter de Appella he mentions the Custome of England to prove things by the credence of twelve men of the Neighbours or Visne After all the ill Customes so much decried in the Barons warres taken away and Sr. Edwards Lawes restored and confirmed in Magna Charta the inquest of twelve continued untouched and never complained of it was in use with the French in the age of Charlemaigne h D. Spelm. gless verb. in Quaest Vid. Gesta de villa novilliaco post appendic ad Fledvardum This Law of S. Edward I thinke is above all exception and full to the thing by which after a prohibition that no man buy a live beast c. without pledges and good witnesses is said and if any man buy otherwise c. after the Justice shall inquire by Lagemen legall men and by the best men of the Borough Town or Hundred c. i C. 38. This trifler Polydore reviles our inquests by twelve as devised so he to oppresse men under the show of equity and the Canonizers of Gunpowder Garnet calumniate it as upstart and unjust Of these hereafter For Polydore sayes the excellent Sir Henry Savil he was an Italian a stranger not conversant in our Commonwealth neither of much judgment nor wit k Epist ad Eliz. Reg. snatching at things and often times setting downe what is false for the true M. Selden bids all Readers in these things or such like to take heed of Polydore and his fellowes for sayes he and no man can say it better out of carelesnesse being deceived hee attributes many things to William as the Author which it is most certain we owe to the most antient times of the Saxon Empire c. l Notae in Ead. 194 Courts of Justice were erected before the Normans were heard of as the Halmot or Court Baron m Ll. Ed. c. 23 Hen. 1. c. 10 The friborge or tithing called Tenmentale in the North by the Normans Frankepledge a most excellent policy of State and one great reason why when it was practised insurrections and theft are so seldome heard of in the tything every nine men were pledges for the good bearing of the tenth If the substance thereof was performed as it ought sayes M. Lambard and as it may by Law then should the peace of the Land be better maintained then it is n Office of Constab 9. this Mr. Daniel affirmes o Hâ—st 38. By the due execution of this Law as the Lord Cook such peace was universally holden within this Realme as no injuries homicides robberies thefts riots tumults or other offences were committed so as a man with a white wand might safely have ridden before the Conquest with much money about him c. p 2 Inst 35 few Suits or causes of Suits
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
every paultry Chafferer for smal Wares and a plaine wit with modestie is more profitable to the government then arrogant dexterity l Thucyd. l. 3. In the glosse upon Justinians Institutions to set up Lawes and pluck them downe is called a most pernicious custome in many places as there declared so by Plato and Demosthenes m f. 28. The Lord Cooke his judgement of the Lawes of England is That having been used and approved from time to time by men of most singular wisedome understanding and experience to be good and profitable for the Commonwealth as is there implied they are not to be changed n Pâ—af to the 4. rep To which purpose he recites there the resolution of all the Barons of England in the Statute of Merton refusing as the King and his Counsell doe which the Lord Cooke o 2 Just 98. collects of them out of the 26 Epistle of Robert Bishop of Lincolne to the Arch-Bishop of Canterbury to legitimate the antenate or bastard eigne borne before marriage with this reply in these termes And all the Earles and Barons with one voice answered That they will not change the Lawes of England which hitherto are used and approved p Stat. Mert c. 9. what is lesse then change the same Lord Cooke likes not correction of the Lawes It is an old rule in Policie and Law so he that correction of Law bee avoided q 4. rep Pres which some will thinke is over-done a streine too high yet it has its reason Lawes are the walls of Cities to be defended as walles no caution can be too much like the Soveraigne of Mexico they are not to be touched But had our Laws or others been composed not only as they are by the most solid wisest heads of all the ages past but by immediate conveiance from God himself pronounced with his own voice or delivered by an Angell to us One word Libertie specious Libertie more admired then understood with which of late Laws are idely imagined inconsistent were enough to cancell and blot them all I am unwilling to shew here how much and often but how seldome to an honest end for the most part in the head of a mischief this word this found or handsome title for it is no more has been used It is most true all Lawes are inconsistent with this Liberty as that 's inconsistent with any Government whatsoever The eminent Patron of it was a Jew Judas of Galiles author of the Sect who as Josephus r L. 18. c. 2. agreed with the Pharises in other things but on fire with the most constant Love of Liberty they beleeve God is onely to be taken for their Lord and Prince and wil more easily endure the most exquisit kinds of torments together with the most deare to them then to call any mortall Lord. If it might have beene permitted they would have been free enough no Tax Tribute Custumes nor Imposition would they pay but not out of that authority of Deutoronomy which is pretended but no where to be seen Non erit pendent vectigale There shall not be any paying Tribute amongst the Sonnes of Israel There are no such words nor any to that sense in any of the received languages 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are the Greeke words as our English amongst the Daughters and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the place signifies not one who payes Tribute but one initiated in the mysteries of the Paganes by them called sacred s Orig. Eccl. Tom. 1.1317 yet had this Heretick as all others ever brag of it Scripture authority from this Booke t Deut. 6. and with the words Thou shalt feare the Lord thy God and him onely shalt thou serve he was fortified which conclude nothing Tribute being paid under the Law as the price of redemption of the first borne and in many other respects dispersed over the Law To men too and in relation to government manifest by that in Samuel u 1 Sam. 17 The man who killeth Goliath the King will make his fathers house free in Israel This the Georim and Epimicti the Posterity of the Cananites and of those which came up with them from Egypt did not onely pay but the Israelites also as is cleare by that text and this That Solomon made Jeroboam ruler over all the tribute or burthen of the house of Joseph w 1 Reg. 11 As others were over the rest of the Tribes Adomiram being said generally to be over the Tribute x c. 4.6 Though Judas inturning the people after him and his Libertie as it is called with his Sonnes perished yet the dregges of his sedition were gathred together in the Castle of Massada by Eliazar the Nephew of this Galilaean with the same obstinacy not to call any man Lord they had their beastly kennel fired about their cares and after some exhortations to one another not to esteem their lives above their deare Liberty they fall upon their owne swords y Joseph l. 7. c. 28. The Jewes of late have made some change with their borderers with their next marchers this as before is become Anabaptisme now of which some of those of Rome who will be any thing rather then stand out where they may doe mischiefe fall not much shorter Christ as Cardinall Bellarmine freed his Apostles from all earthly subjection So that therefore they were subject of fact not of right To passe by all these there is not that fulnes in the word Liberty which is expected Cicero makes it a power to live as we list z In Paradox which cannot be in any government or society nor in any the most retired exile of our selves from mankind if at any time we have the shortest commerce or conversation with others The institutions define liberty to be the natural faculty of any man to do what he pleases a Justin Jâ—stit 31. unlesse by force or Law he be forbidden which as the glosse renders it is a power given by nature to do what we will unlesse one more potent hinder us As Scipio hindred Hannibal yet was Hannibal free still Or that the civil Law of our country forbid us b Et libertas Which last is explained thus Cicero sees his destruction contrived by Clodius and hanging over his head he desires to preserve himselfe by prevention and to kill Clodius that he may free himself from the danger but dares not as I may say either reverencing the Lawes as a good and a just man for he is injust who do's justly because of the penalty annexed to the Law or fearing that penalty as the words yet is Cicero free It goes on We call that liberty which is just and consentaneous to the Laws and therefore is subjoyned in the definition Vnlesse any thing be forbidden by the Law c In lib. 1. tit 111. So that plainly there he is a free man who may do those things which the Laws permit him which
of old Greece or Rome more renowned for Philosophy or valour then for this piety it is notorious how false that charge of breach of the Laws against Socrates was They who sentenced him erected a Socrates in brasse in the most famous place of the City a piece of Lysippus his workmanship p Diog. lac Here though Caesar had won the field Caeto was the Conquerour and might well say He had ever been more puissant then Caesar in right and justice q Plut in catone utic Plut in A. ristid 623. and that his life was invincible For this reason had Aristides that most illustrious title the just a title given to that late victorious King Lewis the 13 of France if titles are specious from subdued Nations as from Crete Numidis Africa Asia Dacia c. How more illustrious is that by which is signifyed not the Conquest of men but of injustice of that which is the enemy of men every where Bastards as Cardan would have it are not therefore wicked but such says the illustrious Scaliger which goe false counter and beyond what the Laws command r Exerc. 265. Those of Crotone in the upper Calabre protest they would sooner die then mixing with the Bruty those of the lower change into strange rights manners and Laws Å¿ Liv. l. 24. It is memorable what a Persian Collonel speaks to Themistoeles of Lawes Stranger my friend says he The Laws and Customes of men are different some men esteem one thing honest some another but it is very bonest that every man â—â—ep and observe those of his own Country t Plut. in Themist We are the most ingrateful of all men for those benefits we receive from our Laws if we be not zealous for them if we do not strive with all the world in that lawful glory of obeying Laws we may call the Law of the land most sacred as reasonably no doubt as Justinian calls his so I will shew how this and all additions of dignity else are due to it And now that we may not be ashamed of obedience that we may not so much unman our selves to bespeak and worship an unknown Goddesse though as short of what should be as much imperfect as the Fuller earth and sea are crowded into a Globe I will say shorter so far am I from promising and I believe he that makes the next sally may be short for it must be a great hazard a great adventure to praise those things which no men could ever dispraise if he that writ Trajanes Panegyrick could not do him full right as I cannot think he did what can be said of these Lawes which had more then twenty Trajans for their founders with their Senates of their worth that if after the old trick you should call the Gods in nothing could be got by the voucher I say that we may not be ashamed of our obedience to such Laws I will show what they are and which is the best demonstration I will shew what this tree is by the fruit The Law of England is that which is called Common Law of England The Common Law explained and declared by judicial records and supplyed where the plainness of it cannot reach the injustice and deceits of men practised in the later more crafty and wicked ages by that Law which is called Statute Law u 1. Inst 11 besides which there are reasonable customs c. The Common Law excelleth the Statute Laws and may controle Statutes w Hub. l. 5. E. 4 40.4 Inst 42.3 Inst 13.77 2. Inst 526.588.518.11.6 7 8. If as the Lord Cooke they be against common right or reason repugnant or impossible x Sir l. Dav. Pref. r. 8.118 Dr. Cowel a Civilian yet very knowing in the Common Law sayes It is derived from the Law of nature and of Nations as well as any other Law whatsoever consentaneous to Justice and reason y Inst Jur. Anglic. 25. Dav. rep 30. Postrat As Moyle We rule the Law according to the ancient course z 33. H. 6.8 And as Ashton there a f. 9. Where it hath been the use of all times to wage Law and no other way this proveth in a manner a positive Law for all our Law is guided by Vse or Statute And Prisot where Ashton says this as a positive Law says it cannot be for there cannot be a positive Law but such as is judged or made by Statute In the same Book Fortescue says The Law is as I have said and ever was since the Law began though the reason be not ready in memory yet by study and labour a man may finde it b E. 5. and Markham a chiefe Justice c f 24 4.41 It is good for us to do according to the use before this time and not to keep one day one way for one party and and another day the contrary for the other party and so the former presidents be sufficient for us c. And Ascue Such a Charter hath been allowable in the time of our predecessors who were as sage and learned as we be d 37. H 6.22 4 Inst 165 Dact. 17. all Commissions of Justice use to run according to Law and Custome of England as of Oyer and Terminer of Goal delivery of the peace c. The Writs run To take that Assize or do that c. according to Law and custome e Nat. Brev 186.118 c. there is Custome of the manner f Na. B. 3. Custome of the City g ibid. 22. as Sir Iohn Davies in his Preface to his Reports long experience and many tryals of what was best for the Commonwealth begot the Common Law This Law as the Spartane Law and part of the Roman Law in imitation of them is said to be unwritten and preserved in the memory of the people yet is there little of it if there be any little but may be found in the book Cases the Romanes called their unwritten Law Custome Custome so they approved by the manners of those who use it obtaineth the force of a Law written h Just Inst L. 〈◊〉 2. and again without writing that becometh a Law which use hath approved For continual manners approved by the consent of those who use them imitate Law i Vbi sup this is matter of fact and consisteth in use and practise onely nor can it be created by Charter or Parliament for as the same Sir Iohn Davies k Vbi sup when a reasonable act done is found agreeable to the nature of a people who use it and practise it again by iteration it becometh Law and as he goes on this custumary law is the most perfect and most excellent every man in reason will grant this to make and preserve a Commonwealth For lawes made still he speaks either by Edicts of Princes or Councels of estates are imposed upon the subject before any tryall made whether the same be fit and agreeable to
the nature and disposition of the people or whether they will breed any inconvenience or no but a custome never bindeth till it hath been tryed and approved time out of minde during which no inconuenience did arise for if it had been found inconvenient it had been used no longer but had been interrupted and so had lost the vertue of a Law This is declared to be so by the Lords and Commons in Parliament in the 25 yeare of King Henry the eight which I shall cite below and if the Judgements and Declarations of Parliaments be not regarded I know not what can give satisfaction * Vid. 3. c. Ancient liberties and customes which have been usitatae approbatae used and approved m c. 9. Stat. Mert. make the Common law The statute called dictum de Kenelworth speakes thus the party convict shall have judgement according to the custome of the land n 57 Hen. 3. c. 25. The 27 of King Edw. the first of Fines Contrary to the lawes of our Realme of ancient time used The 34 of the same King confirmes to all Clerks and Laymen their lawes liberties and free customes as largely and wholely as they have used to have the same at any time when they had them best o c. 4. law and custome of the Realme are made the same p 1. E. 2.34 E. 3. Abjuration is called custome of the Realme q 9. E. 2. c. 10. The 25 of King Edward the third saies According to be lawes of the land of old time used r C. 2. The title of the 27 of this King speaks in maintenance of the lawes and usages the Statute 36 of the same King Lawes Customes and Statutes Å¿ C. 15. Statute 42. according to the old law t C. 3. In the time of Richard the second Law and usage are the same u 1 R. 2. c. 2. It would be tedious to heap up more of this kinde I will only adde the declaration of the Houses of Parliament in the time of Henry the eight which is thus Their words being directed to that King This your Graces realme c. hath been and is free from subjection to any mans lawes but only to such as have been devised made and ordeined within this realme for the wealth of the same or to such other as by the sufferance of your Grace and your Progenitors the people of this your realme have taken at their free liberty by their owne consent to be used amongst them and have bound themselves by long use to the observance of the same c. as to the customed and ancient lawes of this realme originally established as laws of the same by the said sufferance consents and custome and none otherwise w 25. Hen. 8. c. 21. Now if what the people of England have taken up out of long use custome and consent be not good agreeable and convenient after so much and so long triall they would appear the most foolish of all people They would not deserve that free liberty which themselves by their repraesentors tell us at the submitting to and taking these lawes they had and if they be good agreeable and convenient they would appeare the most foolish of all people by their change No lawes ever were or can be made with more equity then these to which besides use and custom and experience free liberty and consent of those who were to observe them gave life There is custome of Courts which is law too part of the Common law x Plowd Com. 320. as the Statute of Kenelworth If any man shall take revenge because of the late stirres be shall be punished according to the custome of the Court c. y C. 26. Six times is the Common law called by Littleton common right It is sometimes called right sometimes justice z Mirc c. 2 Sec. 16. Fleta 6. c. 1. Mag. Ch. c. 29. Magna charta calls it justiciam vel rectum justice or right Westm 1. Common right and the King wills these are the words That the peace of holy Church and of the land bee well kept in all points and that common right be done to all as well to poore as rich c. later statutes have Justice and right a 1. R. 2. c. 2. full justice and right b 2. H. 4.1 good justice and even right c 7. H. 4. c. 1. Common droiture in a statute d West 1. c. 1. is rendred Justice according to the law and custome of England e 2 Just 161. called common right as the Lord Cooke Because the common law is the best and most common birth-right the Subject hath for the safegard and defence not only of goods lands and revenues but of his wife and children body life and fame also f 1 Just 142 2 Just 56. That which is called common right in the second of King Edward the third g C. 8. In the first of that King h C. 14. is called common law Not onely as Fortescue doe the lawes of England favour liberty i C. 42. But they are notioned by the word The word liberties in Magna Charta signifie the lawes k C. 1.29 and in that respect is the great charter called the charter of the liberties l 2 Just 47 The Statute de Tallagio non concedendo has these words That all the Clerkes and Laymen of our realme have all their lawes liberties and free customes c. m C. 4. In the 38 of Edward the third the Laws are called Franchises in the old Bookes the great Charter the fountain of all our * Just 81. Foundamentall Lawes is called the Charter of Franchises the common Liberty the Liberties of England n Bract. 291 414. Pleta l. 2. c. 48 Brit. 178 because so the Lord Cooke they make frecmen o 1 Jnst 1 The customes of England bring a freedome with them therefore in Magna Charta are they called Free Customes p 2 Just 47. Mag. Char. c. 29. the Courts of Justice are also called Liberties because in them as the same book the Law which maketh free-men is administred q Mich. 17. Epist 1. in com berot 221. 2. 2 Jnst 4. the Law then is Liberty it selfe Liberty and Law are convertible nor is this Liberty titular onely and a Liberty of words In the expressions of the Petition of right out of Magna Charta cited in the first Chapter and out of the 28 of Edward the third No free man shall be taken imprisoned or disseased c. but by lawfull judgement or by Law of the land and no man of what estate or condition soever shall be put out of his lands or tenements nor taken imprisoned nor dis-herited nor brought to death without being brought to answer by due process of Law which is as after in that Petition of right either Customes of England or Acts of Parliament r 3 Car. Reg
the givers name called the Lawes of Hael Dha Further King Edward the first who totally subdued Wales in the Statute called Statutum Walliae where he changes many of their old Lawes by his words there makes it cleare that the Lawes of England and of Wales could not be the same for so there had been no change The words are The Lawes and Customes of those parts hitherto used we have caused to be recited before us and the Barons of our Realme which having diligently heard and fully understood as it is fit were laws worse then those there should be full understanding ere a change certaine of them by the counsell of our Barons foresaid we have blotted out certain we have suffered and certaine corrected b Stat. Walliae or of Rutl. 22 E. 1. Perhaps it was not thought fit after a new Conquest to make a thorough alteration of things too suddenly yet was this a long Statute and much of the Law of England imposed upon them by it The 27. of King Henry the 8. swept all clean That commands that the Lawes Ordinances and Statutes of this Realme of England for ever and none othr Lawes O rdinances nor Statutes shall be had used practised and executed in the said Country and Dominion of Wales c. c 27 H. 8. c. 26. The Saxons as M. Daniel made such a subversion of State as is seldome seen the new retained nothing of the former which held no other memory but that of its dissolution scarce a City Dwelling River Hill or Mountain which changed not names The distance made by the rage of war was so wide between the conquering and the conquered people that nothing either of Laws Rites or Customes came to passe over unto us from the Britains nor had our Ancestors any thing from them but their Countrey d Hist 9. But the Author of the patches to the Lawes of St Edward though in Geoffrey of Monmouths strain goes full up to King Brute himself of Geofferies begetting speaking of the weekly Husting of London sayes he which was builded a long while agoe like and after the manner and in memory of old great Troy and to this day it containeth in it selfe the Lawes Rights Dignities Liberties and Royall Customes of old great Troy e Ll. S. Ed. c. 35. c. which like the Phoenix lives in its ashes and here such is the kindnesse of some of our quaint Authors has overcome Greece in the grave being more fruitfull in noble Colonies then her Enemy so that it must be a very faire discent where the pedigree is brought downe from old great Troy As of old the Greek Lawes so since the German Nations have overflowne Europe now are the German Institutions every where received and in force sayes Grotius f De jure belli c. 133. As the Lombards Burgundians Franks Swevians and Vandalls and other the brothers and kinsmen of the Saxons seated themselves in Italy France and Spain and spread their Lawes where they over-ran upon no other Title but that of the Sword so did the Jutes Angles and Saxons plant themselves and the customes of their first homes here first as friends and allies invited in by the British King Vortigen having lands dwelling places given them to fight for the Countrey they make a league with the Picts the publike enemies destroying those whom they were called in to protect in which manner they setled themselves leaving none of those amongst them but such as were content with slavery Their owne Countrey-man venerable Bede borne 227. yeares after their landing tells us comparing them to the Chaldeans whom I choose to refer him to who would know more g Bede hist l. 1. c. 15. p. 59. their Lawes and Language though themselves have suffered by their owne blood by their fellow Tribes the Danes and Normans some of those calamities which they made others feel where time and age and corruption gnawing to which all things are subject have not made a little change continue in the maine to this day These Nations so powred out of Germany retaining the rites and terms of their own Countries all of the same manners and tongue It commeth to passe as the most knowing h Gloss 435. Col. 1. knight that there is so much consonancy betwixt us and the Germans French Italians Spaniards and Sicilians both in the Canon of the ancient lawes and in the names of Magistrates Officers and Ministers of State therefore as he goes on Let them brag that will of the antiquity of their municipal lawes their beginnings can be had no where else Germany it is meant is the common mother The terms of art of some of these Nations got as far as Constantinople amongst the Greeks where we may finde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Captain from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a throng 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he that holds by knight service from buccella a morsel buccellarius is amongst the wise Goths of Spain thus used 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 homage 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is gelt rent tribute c. from the Saxon geld 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bill scedule c. and many more which Meursius in his Graeco barbara has collected the most ancient laws of al these people are the salic laws nay of all laws now compiled obtaining These and the Franks who made them were of Germany so named from the River Sala in Frankenland not from Franiker as Ortelius would have it They were made in the third yeer of Pharamond king of the Germane Franks 105 yeers before Justinian the Emperour who published the Imperial Laws The Author where he has no Latin puts in his Franko-Germanic of the Latin fashion As William of Oangis in the yeer 420 the Franks began to use Laws and did dictate their Laws by four Princes of their Nation sala signifies in the Dutch an Hall as with us or Palace whence are called law salic manners-salic vassals salic which belong to the sale Hall or Palace and as yet is to be seen the salic book Salbuch in the German libraries like our Doomesday or Liber Agrarius here says another who tells us there of the Salian Franks the Authors of this law named so from the former river seated on both sides of the Main upon which stands Francford the head of the Nation i Boioar. hist l. 4.313 of whom and this Law is said before what the best Authors write In the same Salic Law are many words used in ours as Campio Forresta Forrestarius Sparuarius Marcha Veragelt which is our were gild c. These Customes went with Pharamond eight yeers after into France then after those of the western Gothes in Spain the Burgundian Laws the lawes called Alemaaic Boian and Frank other then the Salic were instituted by Thierry the first son of â—lodove who first became Christian corrected by Clothaire and Childebert and perfected by Dagobert After follow the Lombards who as they were a
Colonie of the German Saxons so are their lawes full of their and our Customes agreeing together in many things yet k Dn. Spel. gloss 440. When Austin the Monk was sent hither by Gregory the great to convert the Saxons in the yeer 597. Not one hundred and fifty yeers after the entrance of the Saxons he was commanded by him to take interpreters with him out of France in his way l Bede l. 1.25 and it was unlikely while the Saxons yet kept the language of their Countrimen they should have forgot their Customes contrary to the manner of all the other Tribes of that Nation The first Saxon lawes writ by them after their Conquest are those of Ethelbert of Kent the first Christian and Monarch then which says Venerable Bede amongst the other good deeds he did his people set constitutions of right judgements according to the example of the Romans with the Counsel or advice of his wise men Mid srotera geþeat Which he commanded to be writ in English and which are held says he of his time long after Aetbelbert to this day m l. 2. c. 5. These were short and rude like the age Next are those of Ine the West-Saxon those of Offa the Mercian Kings of Alfred King of England founder so Ingulphus of the English policie and order ever since observed called by the book of Ramsie The renowned King Alfred founder of the English Laws Who is first said by Master Lombard and others of the greatest name to have divided this land into Shires Hundreds and Tithings c. to establish jurisdiction in every of them n Archaolog 15. again it is said he gave not onely lawes but Magistrates Shires Hundreds c. which so one place speaks we have often observed o Gloss tit Ll. Angl. Iugulph Though no man can honour the sacred memory of this most glorious Prince more then my self and I know viros magnos sequi est pena sapere yet I cannot believe this Malmesbury speaks onely of the Hundreds and Tythings the invention of which he attributes to this King p de Gest reg c. 4. He might which the Glossary is once contented with review the Lawes of Aethelbert Ina and Offa transcribe and insert whatsoever was worthy into his lawes and impose them upon the Angles the English generally as the Danes submitted to him in which name the Jutes and Saxons were included he might adde much and polish what he found being never idle ever imployed for the good of his people either in his Courts and Councels of State or in the head of his Army But he that looks upon the lawes of King Ine will find enough to assure him that King Alfred laid not the first stones of the Government which by whomsoever laid were laid before King Alfreds great Grandfather was born there being neer 200 yeers betwixt these two kings q Fasti Savil Not to recite the lawes upon offences we read in the lawes of King Ine of the Shire the Alderman and the Kings Alderman One law speaks thus If any man shall let a thief escape or hide the theft c. If he be an Alderman þolige hisscire he shall forfeit his Shire c r Ll. Ina c. 36. Another If any man shall demand Justice or right before the Shireman the Earle or other Judge Å¿ c. 8. v.c. 6.51 c. The Proaeme mid eallum minum ealder mannum and with all my Aldermen the chapter of breach of the peace In the Kings Town Aldermans Town Kings Thames Town c. t c. 46. Thorold a Benefactor to Crowland Abby long before King Alfred in two old Charters is called by King Kenulph Vice Comes Lincoln and by King Withlaf quondam Vic. Com. Lincoln sometimes Sheriffe of Lincoln u Concil Sax 3â—8 Ingulph 854.857 Venerable Bede who flourished in the time of King Ina tells us in the days of King Edwin King of the Northan hymbres Paulinus the first Archbishop of Yorke converted to the Faith Blecca with his family Line cole ere szre geÆ¿efan w Bede l. â— c. 16. l. 5. c. 4. p. 375. The Gerefe of Lincoln and elsewhere says he Hanwald the gesiþ a word rendred comes with his geref w th his Sheriffe Aethelwine betrayed King Oswine x l 3. c. 14. l. 4.22 l. 5. c. 4 5. Hundreds and Tythings are not named in the Lawes of the Kings Ina or Aelfred In King Ina's Laws pledges borgas are named by which probably we may think Tythings to have been then One Law wills if the geneat the husbandman as now we speak steal and run away that the Lord pay the angild the price c. if he have no pledges y Ll. Ina. c. 21. Ll Edg c. 6. Cnati 19.27.35 After the laws of King Aelfred those of Edward the Elder of Aethelstone Edmund Edgar Aetheldred and of Cnut the Dane succeeded all which were distinguished and ranked under three heads The first of the Weft-Saxons under whom as united and submitted were comprised the Saxons generally caled Æ¿estseaxna laga the West Saxon Law The second of the Mercians or Angles called Myrcna laga the Mercian law the best and most select of which King Aelfred as before took into his laws not rashly as he says in his Preface He durst not as his words are because he knew not what the next age would like set forth much of his own What he did still as he pleased his wife men w Praefat. in Ll. Alf. those of his Counsel The Ãeâ—elaga was the last of these called the Danes law of all which we may say as is observed out of Ovid. Facies non omnibus una Nec diversa tamen qualem dicet esse sororum Yet King Cnut as much resemblance as there was lik't it not out of all these laws he composed one Common Law which King Edward the Confessor observed z Malmesb de gest reg l. 2. c. 11 â— See here ch 3. His title says The laws of St. Edward begin quas in Anglia tenuit which he held Edward the third before the Conquest as one set forth one Common Law called the lawes of Edward to this day a Ranulph cester l. 1. c. 550. Hov. 600. Ll. Ed c. 35. in Hoved. which because they were just and honest as the Paraphraste upon the Laws of St. Edward he recalled from the deep abysse and delivered to be kept as his own As another he was the lawful restorer of the English laws b Gemetic l. 6. c 9. all this may be he restoâ—ed them and recalled them from the deep Abysse they might be forgotten dedicated as the Paraphrast speaks to oblivion wholly but not as he addes from the time of King Edgar in the reigns of Harold the first and Hardicnut Besides restoring and addition he commanded this law should be kept as his own and being a king of the Saxon blood and falling last upon the work it is
without triall justice shall not be sold nor deferred c. The observation of these Lawes was a condition of Peace which ever appeased the antient distempers and cemented what was loose and dis-joynted in the great body The Lawes toe of St. Edward are inserted into the oath of the Kings of England usually taken at their Coronations which were not onely superfluous and abundant but an impious vanity if there were no such lawes any where after the solemnity of this religious and sacred bond to be observed The manner of taking the Oath as we find is this The Archbishop asks the King VVhether he be willing to take the Oath usually taken by his Predecessors and whether the Lawes and Gustomes by the antient just and devout Kings granted to the people of England with the confirmation of his Oath he will grant and keep to the same people and especially the Lawes Customes and Liberties by the glorious King Edward to the Clergie and people granted d Ex libro regali After he is led to the high Altar where he swears to observe them c. Further so farre are some from allowing our Lawes to be Norman that they are of opinion the Normans received theirs from us as they most of their Customes being so derived as William of Rovel in his Preface to his Commentary upon the grand Customary Edward the Confessor being a long while in Normandy gave Lawes to the Normans and made the Customes of England and Normandy e D. Spel. gloss v. jurata which if it were not so nothing is lost by it nor does it make any of these truths suspitious * Sup. 55. that so few of these Lawes are come to our hands of which something is said before and of their Book-Cases or Judgments none at all There never could be any such Volumes of them heard of as are fancied besides the honest simplicity of the first ages and the strictnesse of rules spoke of writings and deeds either to pass Lands or Priviledges were not in use till King VVithred neer 700. years after our Saviour that King being so illiterate that he could not write his name as himself confesses f Concil Sax. 198 King Aelfred little lesse then two hundred years after this complaines of the ignorance then that there were scarcely any on this side Humber who could understand the ordinary common prayers or translate a piece of Latine into English but in the beginning of his reign on the South of the Thames he remembred not a man who could have done it g Ibid. 379 Epist Aelfredi ad Walsagepiscep and although this King of sacred memory if perhaps as I cannot thinke he was not the Solon and Arthitect of our Saxon English order yet a great restorer of it built gloriously upon the frame he found yet these were lesse then beginnings would likely have been where such a Prince had been the Workman he could not intend them the Danes like a fatall whirlewinde tearing up root and branch every where ruining had long before broke into the Land which two hundred yeers together they miserably harassed with whom he fought fifty six battells and as may be imagined had not leisure to performe the duties of peace but in his armes sometime hid in the poore shed of an Herdsman as the most knowing Knight a King without a Kingdome a Prince without people so that hee could not thinke of his Lawes h Concil 378. and although there was some breathing and the storm had some intermission some calmes were in the two hundred yeeres some in his reign yet such ravage and spoil had these barbarous theeves made and so universall might the Confusions and Disorders be we may conceive it would be the labour of no short peace to restore things fallen or shaken to their first condition without making any the least progression this being not to be done till the corruptions which warre licentiousnesse and carelesse negligence have bred in the parts most sound are plucked up and the weeds throwne out which must be the worke of time The proceedings too of the Saxons our Ancestors as M. Lambard in judgement was de plane and without solennity enough to cleare this though the Saxon Lawes then were enough for the Commonwealth yet they had no great extent whatsoever unto S. Edward gathered out of the Lawes of those who followed this King and saw more quiet dayes or out of the whole body of the Saxon Lawes could not reach farre but not out of any defect in the Law it selfe then the cause why the law runs in a larger channell and spreads into more veines now is not any artifice or injust dealing of those who practice it but the improvement of estates by good husbandry much traffique whence contracts are more frequent As Sir John Davies there is more Luxury and excesse in the world more force deceit and oppression more covetousnesse and malice breach of peace and trust which as they gather strength and multiply so must the laws there is a necessity that as these mischiefs increase there should be supplements of laws to meet with them Mr. Daniel observes of the Assize of Clarendon long after the Saxons that it consisted as it does of very few points and that the multitude of actions which followed in succeeding times grew out of new transgressions c. When the Romans were little better then shepheards and herdsmen it is said a few Ivory tables contained their laws after they came to be Lords of the world thousands of Books were writ of the Romans Civil Law Albericus Gentilis justly reprehends Ludovicus Vives who maintained as he that all things might be finished by a few laws as the same Mr. Lambard speaking of the Law of England positive or written Law neither is nor can be made such a perfect rule as that a man may thereby truly squâ—e out justice in al cases which may happen for written lawes must needs be made in generality and grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particularity which experience and time doth beget i Archeior 76 77. There is a curse of peace the highest prosperity has its dangers there can be no safety in it the rich man is more infirm more unsound then the poore pride and malicious contention are diseases he is seldom free from it is well said of wicked men and their injustice there is need of many laws to bridle them of many Officers to execute of many lawyers to interpret those laws We know all laws come not in by heaps but as time corrupts things and new wrongs and offences are discovered by the same degrees Thus the Sumptuary laws amongst the Romans came in the Fabian of Plagiaries the Julian of publike or private force de ambitu and the rest all our Statute laws which are remedying So must it be and so it has been in all Commonwealths of
are to doe even law and execution of right d 20 E. 3. c. 1. The supreme of these Benches after this alteration dealt in pleas criminall called placita Coronae in the books e 4 Inst 71 Stamp Pleas of the crown examined and corrected errors misdemeanors and offences against the peace granted the Habeas corpus and upon return of the cause relieved prisoners held pleas by Bill for debt detinue covenant promise of all personall actions of ejectione firmae and the like against any in the custody of the Marshall or any Officer of the Court who may implead others in those actions of all trespasses with force and armes of Repleviuâ— Quare imâ—â—dit c. of Assise of Novel disseisin These Justices are the soveraign Justices of Oyer and Terminer of Gaole delivery and conservators of the peace c f 4 Inst c. 7. This Bench may grant prohibitions to all other Courts to keep them in their bounds The Chancery as before supplies the wants and relieves against the rigour of the Law in its extraordinary juâ—isdiction The Ordinary held pleas of sâ—ire facias to repeale the Kings Letters patents of Petitions monstrance of right Traverses of offices of partitions there of scire fac upon recognizances there Writs of Audita querela and scire fac ' in the nature of it to avoid executions there endowment might be there by the Writ de dote assignands upon offices found execution upon the Statute staple or recognisance in nature of it upon the 23 of Hen. the 8. Personal actions might be brought there by or against an Officer or minister of the Court it is the officina justitiae hence all Writs issue it grants the Habeas Corpus out of Term g Ibid. c. 8. In the Court of Common pleas or commune bench all real actions are determined and all common pleas mixt and personal Besides the Stationary Courts at Westminster there were the Justices in Eyre the sitinerant Justices Charles the bald in the yeere 853. divided France into twelve parts and over every of the parts placed men famous for Religion and Law who yeerly travelling their own Divisions took cognisance of wrongs done betwixt party and party and of the publique offences according to justice By which pattern King Hen. the 2. of England in the yeer 1176. divided this Kingdom into six parts over every of which he appointed three Justices yeerly to goe their Circuits h Hoved. 548. M. VVestm l. 2.39 though I know not why this institution is made more ancient by others These were followed by the Justices of Assize since in being by whom they are swallowed up their circuits are twice the yeere and at certaine times having the power of Gaol-delivery added with the authority of the Justices of Nisi prius annexed also the inquiry and determinations of many things else given by latter Statutes and by another Commission of Oyer and terminer the power to deale with Treasons Murders Felonies and all misdemeanours whatsoever they have one other Commission of the peace in the Counties of their circuits by vertue of all which together they sit More perhaps cannot be devised for the ease of the people Thus is justice brought to their own dores the same thing with a fixed standing Court and as it may chance more safe The lesse the Judge is known in the Countrey the lesse is the danger of siding or biassing I speak not this as if I had more feares then other men or were for any of the new jealousies these are the feares of severall of our Parliaments There is aprohibition in two Statutes That no man of the Law shall be from henceforth Justice of Assises or of the common deliverance of Gaoles in his own Countrey i 8 R. 2. c. 2. 13 H. 4. c. 2. and a third Statute of confirmation is more full it sayes That whereas it is enacted that no man learned in the Lawes of this Realm should c. be Justice of Assise in the Country where he dwelleth since divers men learned in the Lawes c. have by their means and policy and for their own commodity c. obtained to be Justices of Assises in the Countries and Counties where they were born or were inhabiting whereby some jealousies of their affection and favour to their kinsmen alliance and friends c. hath been conceived and had c. enacted c. that no Justice c. use nor exercise c. as before k 33 H. 8. c. 24. Upon such like reason is there another Statute enacting to this purpose that no Lord or other in the Countrey sit upon the Bench with the Justices of Assise l 10 R. 2. And as nothing humane I might say divine too fathered somewhere as high as upon Lycurgus his Apollo or the whispers of a Numa and his Eugeria where Gods might be fancied to descend for the production and caelestiall wisdom to flow into it never so excellently contrived can please all men so perhaps whatsoever production shall or can be it may have if not its mischiefes and inconveniences yet some failings incident to the imperfections of man in it selfe and by corruptions from without their grace and flourish may be but short nothing is so incertain in the taking as new Lawes much must be ventured much committed to fortune and if according to the Saxon form which is shewn is not yet extinguishd and what is lost in jurisdiction or rather in use in the lower Courts is supplyed as is shewn too by a way if not better yet equal to it standing Courts were every where and what is more daily open at the Countreymans doore This would not perhaps so much ease the honest just man ever upon the defensive who ever sues but for his peace and the quiet preservation of his own right as it would multiply vexatious prosecutions some the greater number and the worst men composed of malice and contention would be incouraged by it to molest others the trouble and expence being so little and the way to imbroyle so ready and neere there would be nothing but complaints the Law and its remedies would quickly he abused they would be as great a plague as some men who onely say so would have them imagined to be actions would fly thick and swarm so fast one yeere would bring forth Volumes more swelling then all the Annals now read and if every man might be the patron of his own Cause often his in justice nothing would be wanting to make the confusion periect all decency and respect would be forgotten for which nothing would be had but prodigious noise and rude tumults Farther those who now are kept off by the conscientiousnesse of the knowing Lawyer who has made a discovery into the injustice of the cause and oftentimes restreines the heady client to run on would presently be at the shock fall into the danger of a trial which being blinded with their own fury their malice onely
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
Hist Savil Edit 907. Sometimes the Chief Justice is called Warden of the Realm Vice Lord of England and Justice of England as the Alderman of England was most Honourable in the Saxon times So was the Justice after which was the same from the first time the word is heard of till Henry the third if we except Hugh of Bocland and Ranulphe of Glanville we shall not finde one of these Justices but he was a Bishop a Peere or at least of the Nobility of one of the illustrious families Aubreye of Ver Earle of Guisnes high Chamberlain of England Justice and as some Portgrave of London father of Aubreye of Ver the first Earl of Oxford which familie so Mr. Cambden justly is the most antient fundatissima familia amongst the English Earles as Matt. Paris was ready in the variety of causes exercised in them a In Sitph reg And of Geofrey Fitzpeter Then dyed Geofry Fitzpeter Earle of Essex and Justice of great power and authority a generous man skilful in the lawes allyed either by blood or friendship to all the great men or Barons of England b Id. in Johrege Henry after king son of Henry the second was chiefe Justice of England By the Statute of 31 of Hen. the 8. c c. 10. which ranks the publique great Officers The Lord Chancellour or Lord Keeper is the first man The great Chamberlain of England Constable Marshal and Amiral are to sit below him the Justices are accounted Peers and fellows of Peers Magna Charta sayes No free man shall be amerced but by his Peers and according to the manner of his offence It is observed As to the amercement of an Earle Baron or Bishop for the Parity of those who should amerce them when this Charter was made that the Justices and Barons of the Exchequer were sufficient Bracton as the most learned Mr. Selden cites him sayes Earles or Barons are not to be amerced but by their Peeres and according to the manner of their offence as the Statute is and this by the Barons of the Exchequer or before the king d 1. H. 6 7 v. D. Spelmver he Baron Scaccer All Judges sayes the same Mr Selden were held antiently as Barons which appears in an old law of Henry the first which is Regis Judices sint Barones Comitatus qui liberas in eis terras habent per quos debent causae singulorum alterna prosecutione tractari Villani vero Cotseti vel Ferdingi Cocseti vel Perdingi in legibus nuper editis sed perperam vel qui sunt viles inopes personae non sunt inter Judices numerandi e c. 29. The Barons of Counties who had free lands in them were to be Judges not common base fellows hence as Mr. Selden again are the Iudges of the Exchequer called Barons The black book of the Exchequer makes it manifest the Judges of the Exchequer before Hen. 3. or Edw. the 1. for thereabouts the Exchequer had its ordidinary and perpetual Barons were of the Baronage by these words f part 1. c. 4 There sits the chief Iustice of our Lord the King first after the King c. and the great men or Barons of the Realm most familiarly assistants in the kings secrets By the decree of king Iames g 28. Mai. 10. Jac. reg The Chancelour and under Treasurer of the Exchequer Chancelour of the Duchie chiefe Justices Master of the Rolles chiefe Baron of the Exchequer all the other Judges and Barons are to have precedency of place before the younger sons of Viscounts and Barons and before all Baronets c. there the degree of the Coif is called an honourable order the Serjeant is called by Writ The words used to be we have ordained you to the state and degree of a Serjeant at Law Vos and Vobis in election of Serjeants and summons of Judges to Parliament ever applyed to persons of quality are used One Statute speaks where he taketh the same State upon him h 8 H. 6. c. 10. And another At the Creation of the Serjeants of the Law i 8 E. 4. â— 2. Which is observed ever to be applyed to dignity k Rep. 10. Epist The Patrons of causes called pleading advocates and Narratores Counters of the Bench or Prolocutors of old as Paris l Hist 516. vit Abb. 142. all Lawyers were antiently of the Clergie And those now who are so curious for neatnesse of that order may thank their predecessours for that rudenesse which is so unpardonable by them in the Latine of the Law No Clerk but he was a Lawyer saies Malmesbury in * Lib. 4. Ed. 1. Savil. 123. William the second we read that Mr. Ambrose the Clerke of Abbot Robert of St. Albanes most skilful in the law an Italian by Nation amongst the first of the lawyers of England for time knowledge and manners is sent to Rome m Vitae Abb. St. Alb. 74. Adam of Linley is said to be Abbot John the 1. his Counsellor in all his weighty affaires a curteous man honest and skilful in the lawes n Ibid. after Archdeacon of Ely for most of them held Church-livings he was after speciall Counsellour and Clerk saies this this Monke to the Archbishop of Canterbury Stephane John Mansel of whom we read so much in the History of Hen. the 3. is called the Kings speciall Councellour and Clerk as much as Atturney generall since o Ibid. 142 Hence it is that the ancient habit of secular Judges was the same and yet is with that of the Ecclesiasticks p D. Wats Gloss ad Paris William of Bussey Seneschal and chiefe Counsellor of William of Valentia would have losed saies the same Monk the staies of his Coife to shew his Clerkly tonsure his shaven crown q 984 985 Hist And again he sayes The Clerks who such Writs dictate write signe and give counsell r 206. Aâ—â—it They are restrained by Pope Innocent the 4. his Decretales who forbid any such to be assumed to Church dignities c. unlesse he be learned in other liberall Sciences Philosophy and Divinity were laid by as the words there the multitude of clerks ran to the hearing of secular laws Å¿ ibid. 190.101 Hugh of Paâ—shul clerk is made justice of England by Hen. the 3 t Hist 405 So was the famous John Mansel before Keeper of the great Seale There have been seven Wardens of the Kingdome or Viceroyes of the Clergy twelve great chiefe Justices neere 160 times have Clergy men been Chancellours about 80. of them Treasurers of England all the Keepers of the privy Scale of old the Masters of the Rolls till the 26. of King Hen. the 8. the Justices of Eire of Assise till Edw. the third were of that order u D. Spel. Epist ad concâ—l men whom the Lawes were beholding to w 1 Inst â—ect 524. rep 5. Câ—wd 2. Just 265. else they had been told