must needs then be The Hundred which was ten tythings a Germanie Institution q Gapit Car. Calui apud siluacum where every man was bound to attend in the North called Wapentake then the Trything Thryhing or Leet the Jurisdiction of which extended over the third part of a Province containing three or four Hundreds r Ll. Ed. c. 34. The County Court called gerefas gemot the Sheriffs gemot or Court to be held by the Institution of King Edward the elder every fourth weeke where the Sheriff was to decide civill and prediall causes and every sfraec as there plea was to have an end at the day Å¿ Ll. Ed. sen c. 11. The supreme Provinciall Court was the Sciregemot or Shire Court the same which now we call the Sheriffs turne kept twice the yeare where the Thanes or Noblesse were bound with the Freeholders to be present the Bishop was Judge for Church-matters and the Alderman of whom below for things secular here was the Assembly of all the Hundreds t Ll. Eadg c. 5. ll Aethelst m. s c. 20. Il. Cnuti c. 7 â— p. 2. here Causes Civill and Criminall were determined This Court and its Jurisdiction was very ancient being famous and used in the same manner amongst the Franks and Lombards as may be seen by their lawes u Ll. Car. Lud. Im. l 4. c. 26. Car. m. Lom l. 2. tit 52. Ll. Aleman tit 36. VVilliam the first divided the Jurisdiction and confined the Bishop with his Causes Ecclesiasticall to a Court by himself which were discussed in the Hundred and Court of the Shire before which appears by that sanction of this King directed to the Earls Sheriffs and all the French and English so it speakes who have lands in the Bishopricke of Remigius Bishop of Lincolne though there onely the Hundred bee named w Not in eadm 167. yet there is added The Episcopall lawes which were not well kept nor according to precepts of holy Canons c. and as this is recited elsewhere They shall bring nothing to the Hundreds or Judgement of secular men x M. S tab Rob. Winch. Arch. Cant. in eadm 168. and every secular Court is alike forbidden to Church-men by the Canons In one or other of these Courts in the lesse or greater all causes were to be determined at mens homes and at their owne doors if the parties would rest there no man ought to sue out of the County to draw his Plea from thence without good cause which might be pretended then and in every remove ought really to be now as appears by the Tolt Pone Accedas ad Guriam and Recordare This good cause was if the Suitor could not have Justice at home or what he had was rigour and summum jus then might appeales be to the Palace to the King there whose Court is called the High Court of Justice for law and equity y Ll. Aelfr c. 38. Ll. Edg. c. 2.11 Cnuti c. 16. after the manner of the ancient Jewish Commonwealth a course observed sayes the most knowing Knight all Europe ore z Gloss tit Cancellaria Our antient Kings as he swore before the Realm and the Priesthood right Judgement to doe in the Realme and Justice to keep by counsell of the Peers of the Realme a Ll. Edu Con. c. 16. viz. In this Court every City and Borough had their Courts the Burgmote kept thrice the yeere the Wardmote the Husting the most antient and supreme Court of the City of London is of Saxon extract which every Munday used to be held now on Tuesday yet does the stile still say held on Munday Lincolne Winchester Yorke and Shepey have their Hustings it held Pleas as it does of things reall and mixt Judges there were too in the manner we finde after the Normans who changed only their name from Aldermen to Justices There was the Alderman of all England Chief Justice as Ailwin Founder of the Church of Ramsey was called upon his Tomb The Kings Alderman as the most knowing Knight thinks b Gloss tit Aldermannus like the Missi c In Capit Gar. m. Franc. ll as our Justices in Eire or of Assize The Alderman of the County Iesse then the Earle but equall with the Bishop which three sate together in the County the Earle was to take care of the Commonwealth the Bishop of the Church the Alderman of the County to declare and expound the law c Gloss ibid. Besides as to execution of publike Justice upon the contumacious he might which our Posse of the County resembles use force raise the people This difference is plaine in that law of King Aethelstane Be Æ¿erum of the estimation of heads d P. 55. part 2 ll v. ll Jnae c. 8 Faedus Regum Aeâ—fr Gath. m. s in gless citant where the were gild or price of an Archbishop and an Earls life who are joyned as equall is fifteen thousand thâ—imsa of a Bishops and Aldermans who next follow and are joyned but eight thousand c. Sometimes the same things are said of both the Earle and Alderman so that they may easily be thought in those places the same This was a Salic Institution to substitute thus two or three under the Earle whom they called Sagibarons as Ingulphus who is altogether for King Aelfred King divided the Governours of Provinces who before were called Vicedomini into two offices into Judges whom now we cal Justices and into Sheriffs yet he has in our Charter Bingulph a Vicedominus which Title the Justices yet in Ingulphus retained and Alferi a Sheriff e In An. 948. The Saxons had their Hold or Heretoch their Military Commander in every County Places had their Bilaga by-lawes besides the Common Law Law made by consent of Neighbours now by the Homage in a Court Baron Suiters in the Leet or view of Frankpledge in towns by the Inhabitants and Neighbours as M. Lamhard The Saxons our Ancestors retained the manner of the old Germans their owne Elders who in Tacitus Jura per pagos vieâ—sque reddehant made distribution of Justice not onely in one Towne or in the Princes Palace but also at sundry other speciall places within the Countrey and as he truly the Normans who invaded the Posterity of the same Saxons here did not so much alter the substance as the name of the Saxons order f Archâ—ion 89. But to satisfie those to whom the Normans may be as odious as their Conquest although perhaps they may be Normans themselves most likely descended by some Mother from them and may seem as fond as if now at Millaine or Pavie after so many hundred yeares they would indeavour to distinguish the Lombard and Insubrian the Insubrian Gaule from the Italian in France the Gaule and German-Franke in Spaine the Carpetane and Wisigoth I say to satisfie them I will prove by the testimony of those who lived then when this Norman change is imagined
a Virgin That after Sisters the next kinsmen were to inherit Antiquity is a notion considerable makes thus much that laws under which people for many ages flourished which use and experience have by a long prescription beyond all memorie of men approved may bee thought essentiall parts and we may say of them as is said in Curtius of the Macedons and their Alexander Amisso rege nec volebant salvi esse nec poterant But some there are whose reason is implicite though their faith be not which here might be more tolerable still calling for reason which I wish they knew when it stood before them readie without more adoe where they doe not understand where they find not the reason of things to revile the Law and cry out it is without reason It may be thought we are claiming the Libertie of the Quodlibets where what we please may be disputed without any imputation of slander or impictie though never so absurde foolish or blasphemous where the disputant used to be safe being armed with this title and I conceive it ought now to be allowed to some But to proceed the wise and modest cannot but know and consider it that at this distance and after so many ages the reasons of constitutions ought not to be enquired after otherwise many of those things which now are certaine would be subverted as Suarez The reason of the Legislator cannot alwayes be knowne This I say of all Lawes c L. 2. de Legib. c. 14. all have certaine principles and foundamentals to be granted not now to bee disputed humane Lawes are nothing else but rules by which Justice is taught yet why this particular way of remedie should be laid for that part or such a rule for another mischiefe for no doubt they would desire remedies for mischiefes which might have been and as properly for there may bee severall meanes to one end supplied another way would be a very vaine thing now to seeke into This is the opinion of those of the Civill Law though they cannot as they say give a reason of all their fiore Fathers Institutions d Leg. non omzium yet they will tell you as they have cause for it that there is reason enough in their Law and that obvious enough to those that take paines to find it in their books It has reason everywhere saies Gentilis e l. 2. Epist c 2. but not every where conspicuous Alciat blames Bartolus for denying reason to be the essence of the Law f Alciat l. 1. de verb signif what is said by Diodorus upon that Law of Charondas for the gardianship protection and education of Orphans may be said of all Lawes when understood by long studie for Revelation can doe nothing here The Law of Orphans saies he is full of grace and favour but if any shall weigh and interpret it by the superficies and barke of the words be will thinke but meanly of it but whoso looks profoundly and diligently into it he that searches to the bonc and marrow will judge it to bee made by the wisest counsell worthy singular admiration g Biblioth l. xii The age of the Law of the Land shewes its reasonablenesse Curtius did not speake at randome where hee saies nothing can be lasting which is not propped up by reason the ground of the Law is as Saint German reason the Petition of right has these words against reason and the Franchises of the Land The fifth of Rich. the 2. wills that the Barons of the Exchequer Doe right according as Law and Reason demandeth the fourth of Edward the third hath Right and Reason The mischiefe or danger attending and going along with this prying and disquisition into the Lawes is commonly a change of the Lawes which is followed by a change of manners at least if that be all Those busie Libertines Extravagants New-fangled Fantasticks whose conceptions are so admirable and who can so easily over-doe that which by the testimonies of all orders of Englishmen of all ages as I shall show in my next Chapters has beene concluded to be most excellent would serve their Countrey better and show more care of its quiet and peace if they would obey these Lawes alreadie setled then by troubling themselves others in that which very likely neither themselves nor others shall be happie in if it take effect and how ever ere this Goal be reached too much must be ventured in the way the multitude is not to be let lose for it the rable ignobile vulgus either in the Citie or Countrie have their Trades their Husbandrie to attend to busie themselves in those are their Artes Laws and Government policie are above them Nan est consilium in vulgo Mount Sinai wher the Law was given was sanctified God appointed bounds to be set about it the people were not to touch the border of it nor to come neer it If this sweet and beautifull garden be over-grown with a few weeds it would be no discretion to turn Herds of uncleane Swine in to root them out Some Chariotiers drive not easily let the House bee fowle as Augeus Stables we should not open the flood-gates of the deep strike like Aeolus the den of the Windes and pray in aide of the stormes and tempests and the Sea it self to cleanse it rather then the precious Pallas of their braines should not bee brought forth Some new Lusinia or Vtopia might be found out where with more innocencie their new Common-wealth might be set up He that will judge saies Aristotle h 2 Top. It is better to judge according to the Lawes then out of a mans owne knowledge and sentence although a man out of knowledge may see clearly yet I may say the Lawes have more eyes then Argus they see with the eyes of many ages with the eyes of all the most noble most wise most learned Counsellers of State and Judges of all the most judicious pious and peaceable Citizens of this our Countrey The ignorance of the Judge is the calamitie of the innocent i 2 Just 30 So it must be here of the Law I speak not of polishing refining or ading to the Lawes to compleat them where they are not full may be over-reached by the cunning of injust men had not this been often done the Lawes had not gained the perfection they have now attained but I say this is not to be expected not to be pretended to in the street where nothing but noise and clamour can be had nor can he who removes the angular stones be said to repaire Aristotle thought that Lawes received were not to be changed although there were some incommodiousnesse in in them k Pol. 2. And Cleon speaketh thus in Thucydides his sence and words A Citie with the worst Lawes immoveable is better then one with good Lawes not binding or as I may say subject to to the capricious humors of every peevish shallow tradesman of
the undoing of both of them Gentlemen of a good and ancient family commanded the Lord Chancellour to assemble all the Justices of England before him upon conference to give their resolutions Which they did one Justice disagreeing Chudleight case in the same report is said to be so difficult and of so great consequence it was thought necessary that all the Justices of England openly in the Exchequer Chamber upon solemn Arguments should show their opinions in it where the chief Baron and Justice Walmesly are dissenters as also Justice Gawdy in part Till the first of king James there were but four Judges of either Bench and many times as the same Lord Cook k 4. Rep. Pâ—af in cases of great difficulty the Judges being equally divided in opinion the matter depended long undecided for prevention of which this King added a Judge to either Bench. Retractations may be allowed in law as well as in divinity a man may differ with himselfe believe and apprehend truely and ingenuously and with Judgement this way or that way and after when he shall hear the reasons of others and the same case debated solemnly by the most grave most wise and most reverend of the profession not onely startle and doubt but but believe and like the contrary of what he liked before truly and ingenuously still without any blemish of dishonesty or falsenesse to be stuck upon him for it truth is said to be the adaequation of the speech with the species and if here any miâ—take be as there may the falsenesse is in the notions not in the man who speaks and thinkâ— he speaks truth I know no reason where there is no leading judgement to sway why the professors of the lawes should certainly be supposed to know the right and on which side it is as if infallibility were so ready or likely to be where as the Mirrour joyns them There is no law nor usage and where there are no presidents to direct Cases not being included in any words of law may be compared with the reasons of other cases according to similitude fancied and opinion so produced is but an incertain and weak knowledge thus or thus which yet may well be otherwise every man knows how far the Topic argumentation comes short of the necessary further as Sir John Davies When is right or wrong manifested upon the comencement of a suit before it is known what can be alledged and proved by either party The Councellor when he is first reteined hears onely one part of the matter and that also from his Client who ever puts his case with the best advantage for himselfe after pleading of the parties when they are at issue when they have examined witnesses in course of equity or are discended to a tryal in course of law after publication and hearing in the one cause and full evidence delivered in the other then perhaps may the Councel of either side dicern the rigt from the wrong and not before But then are the causes come to their catastrophe and the Councellours act their last part l Praef. ded f. 6 7. Thus as there are diversities of opinions amongst the professours of the lawes we see there are invincible reasons why sometimes there must be such diversities and I would gladly know where there is any general agreement of mindes A great man of the Clergy but no great lover of the laws or lawyers notes one Judge very hastily determining against others do not Councels often do the same the later quite thwarting those which went before and what he grants are not Divines divided against Divines not only in things of Ceremonie but of Faith If we look upon other Arts and Sciences we might think all things made from Heraclitus his principles that strife was the father what dissonance of opinions what knots never to be untyed sayes the incomparable Petrarch upon the discourse of discord are there amongst the Philosophers Who can number the varieties of their Sects what conflicts amongst Rhetoricians what discords of all Arts what clamours amongst the Lawyers those of the Civil Imperial lawes how well they agree the immortality of causes proves Sick men can witnesse what concord there is amongst Physicians what unlikenesse of mindes is there about things sacred and Religion where the differences are oftner tryed in the field then in the Schools m Petr. de remed utr fort 429. l. 2. By no other law is it said is unlawful maintenance Champerty or buying Titles so severely punished as by ours By what other law askes the most learned Knight is the Plaintiffe for false clamours or injust vexation or the Defendant for pleading a false Plea amerced the amercements in Magna Charta of which hereafter were instituted to deter men from injust suits and defences n 2 Inst 28 the French impost of 100 sous upon the Processe is thought injust yet sayes the Republique never was any so necessary in this Realm where there are more suits then in the rest of Europe which have sprouted chiefly from the time of Charles the sixth when by Edict the ancient custome to condemn those in costs who had lost the cause was cassed o Bod. Rep. 889. By the Saxon lawes he that denyed another his right either in bocland or folcland before a Judge without any right forfeited to the king 30s so the next time the third time the kings oâ—er hyrnysse 120. s. for his contempt p Ll. Ina c. 8. Ll. Edu sen c. 2. Ll. Cnuti c. 7. such lawes as these which might fright troublesome spirits are of high necessity yet I think where mens own Consciences restrein them not the punishment of laws would not prevaile with all men Nor can we expect any continual peace from vexatious suits nor any security from delayes deceits in them till a Christian generous honesty diffuse it self every where and there be a general perfection of charity and love in every man which is not easily to be hoped for France may be famous for its sprightlinesse Spain for its gravity Germany for the arts what clime is renowned for any such honesty Unles the new Atlantis can be found again and its Idea of a Commonwealth the Magick Region of the Moon throughly discovered and it lye hid there Or * Euphorn Barclaie may be believed of his Lusinia so unlike the whole world beside Of which that it breeds men worthy the genius of the place and of their own fortune for so he says if it be the Country some think he means he may be credited for the rest of the innocency piety of the people it is more then I can say of my own knowledge and I would lead no mans Faith where things are not plain and certain Other causes of multiplicity of suits in these latter ages are observed by the Lord Cooke to be first peace noted before * c. 2. In the reigns of the kings Edward the 3. Richard the 2
was suffered in the Civil law parents by a law of the Tables might sell their children thrice g Sect. 18. The Lord had power of life and death over his slave h Insl l. 1. gloss servitus The Petronian law restreins from forcing them to fight with beasts at their pleasure not observed more then the Edict of Nero which deputed Cōmissaries to hear the complaints of slaves They put them to death for trifles Vedius Pollio threw a slave to be devoured of Lampries which he fed thus for breaking a glasse i Dio. l. 54. If a Lord was murdered by one servant it was the old custome saies Tacitus to condemne and put to death all the slaves according to which in the case of Pedanius secundus Provost of the City four hundred innocent men lost their lives k 14 Ann. Where law setled quietly without any awe upon those who are to receive it has too many of Draco's Rubrickes of blood it is terrible Our lawes are not cruelly bloudy they distinguish betwixt intentions and actions and actions as they have their degrees of mischief have their degrees of punishment King Edgar wills in a law That in offences clemency and forgiveness be used as much as justice so that punishment may b◠tolerable l Ll. Nol. 1. Ll. Cnuti 1 2. ve a command not forgot it has continued with the laws Godlike mercy ever saving more then justice strikes Wisdom and mercy justice and grace are joyned m Beact l. 2. as is observed in the beginning No free man can by this law be disseised of his free hold but by lawful judgement c. In those articles against the most worthy Earle Hubert de Burgo he concludes It seems to him That he ought not to answer without restitution being disseised of what he had since no disseised man is obliged to answer in any Gourt c. n Additam Par. 153. This is more visible by the law since As the Lord Cooke if a man be accused or indicted of Treason or Felony his Lands cannot be granted to any not so much as by promise no seisure can be made before attainder o Inst 36 48 Mag. Char. c. xxii Abjuration challenges to the Jury Clergy were no smal favours of the Law If a Felon demand his book and can not read and demand it again under the Gallows and read he shall have the benefit of it p 34. H. 6.49 One Indicted of Felony produces a Charter of pardon discordant to the Jnditement and to his name the Court perceiving the King meant to pardon him remanded him to sue for a better pardon q 46. Ass B. F. Office del Court as if mercy were given in charge to the Justices they ought of office to take notice of all generall pardons though the party plead them not r Dy. 28. and there if all Felonies under twenty shillings be pardoned the Judges ought to dismisse him to God as the Booke who is indited where the Theft is under that sum The Justices heretofore knowing the Felon to be a Clerke who tooke himselfe not to his Clergy would not give Judgement to hang him ſ 22. E. 3. If the Prisoner for Treason or Felony has any matter of Law to plead he is to be allowed his Counsell after the plea of not guilty where it will not be allowed the Court ought to be instead of Counsell for the Prisoner to see that nothing be urged against him contrary to Law and Right Nay any learned man present may give information to the Court in behalfe of the Prisoner for his benefit t 3. Inst c. 2. The Judges as in Humphrey Staffords case is observed u 1 H. 7.26 3 Jus 29. ought not to give their opinions before hand which is condemning a man before he be heard the way to make indifferency impossible whereas as the Lord Cooke untill the party has made his defence things may be represented much to the disadvantage and a small addition or substraction may alter the whole Case In Common Pleas where the Defendant has accepted the Writ or Title where he has lost his advantage by his conclusion or the issue be found against him yet if it appear to the Court that the Plantiffe has no Title no cause of Action Judgement shall not be given against the defendant w Plowd 66 Dy. 13.76.119 120. Every restraint of a free man though not within the walls of a prison is imprisonment x 2. Just 482. Rot. Pael 2. H 4 nu 60. No man is to be arrested or imprisoned against the form of the great Charter before recited y 2. Just 54. No man is to be imprisoned but for a certain cause to be shown z ibid. 53. to be conteined in the Warrant c. the conclusion of which ought to be and him safely to keep untill he be delivered by law c. As the fift of king Henry the fourth None are to be imprisoned but in the Common Goale to the end they may have their tryal at the next Goale delivery c. As Justice Fitz Herbert to keep a man in prison without coming to his answer is against Law a Na. Br. 118. c. The Abbot of S. Albanes would not make a Goale delivery at the time to save costs he lost his Franchise by it b 8. H. 4.18 The Abbot of Crowland forfeited his Franchise for deteining prisoners after acquittal and their Fees paid c 20. E. 4.6 such deteining after the Habeas Corpus is false imprisonment d 2. Just 53. there are many provisions for those who are grieved in these cases by Indictment Writs and Action e ibid. 55. Though the law requires safe and streit custody that must be without any torment or pain to the prisoner relief may be had against cruel and hard usage of a Goaler f 3. Just 35 91 92. The prison as Bracton is not for punishment but custody A certain Priest arrained in the time of King Edw. the second put himself upon the Country and stood at the bar in Irons but by command of the Justices he was freed from them g Fish Corene 432. and as to irons saies the Lord Coke there is no difference betwixt a Priest and a layman h 3 Inst ubi sup No felons comming to answer in judgement ought to be charged with irons i Brit. c. 5.14 c. 11.17 The law of the Land is a law of mercy for three causes as the Lord Coke 1. The innocent shall not be wasted by long imprisonment but speedily come to his trial 2 Prisoners for criminal causes brought to their trial ought to be humanely dealt with 3. The Judge ought to exhort them to answer without fear to assure them that justice shall be duly administred k 2 Ins 316 The Law has a most tender regard as is said of the life of man By a Canon