and without limit from this day forward 2 The terminus a quo you every subject whom the Law injoynes to take this oath 3 The qualities or properties required that is to be true and faithfull 4 Terminus ad quem to whom To our Soveraigne Lord the King and his heires 5 In what manner And faith and truth shall beare of life and member That is as in Calvins case untill the letting out of the last drop of our dearest heart blood And I must adde what is there omitted And terrene honour That is the uttermost of our estate and livelihood 6 The circumstance of place where these duties of Legeance concerning our lives and estate ought to be performed it must bee in all plaees whatsoever without any circumscription for you shall neither know nor heare of any ill or dammage c. that you shall not defend The parts of this oath for the better instruction of the common people I shall summe up in this one proposition which I will presume briefly and succinctly to handle Every subject must be true and faithfull to the King and his heires to the uttermost of his life and fortune or estate 1 The King hath a double capacitie in him one a naturall bodie being descended of the blood Royall of the Realme which is subject to death infirmitie and such like 2 The other is a politike bodie or capacitie so called because it is established by the policie of man and in this capacitie the King is esteemed to be immortall invisible not subject to death infirmitie infancie non-age c. This Legeance is due to the naturall person of the King which is ever accompanied with the politike capacitie that is the Crowne and Kingdome And is not due to the politike capacitie only distinct from his naturall as by divers reasons in Calvins case is at large recited and resolved For if that distinction might take place then would the faith legeance and obedience of every subject due to his Soveraigne be appropriated regimini non regenti to the government of a Kingdome not to him that ruleth or governeth In the time of Edward the second at a Parliament holden at Yorke Hugh la Spencer the sonne being nominated and appointed to serve the King in the office of Chamberlein did draw unto his adherence Hugh Spencer his father and they both usurping upon the Kings Royall power and compassing about to have the sole government of the land to themselves did traiterously contrive a declaratorie writing which they would have compelled the King to signe purporting amongst other mischievous positions That homage and oath of Legeance was more by reason of the Kings crown that is his politike capacitie than by reason of the person of the King whence they inferred these damnable and detestable consequents 1 If the King did not demsne himselfe by reason in the right of his Crowne his leiges were bound by oath to remove him 2 That sithence the King could not be reformed by suite of Law that ought to be done per aspertee by asperitie of Compulsion 3 That his leiges be bound to governe in aide of him and in default of him All which execrable opinions were condemned by two Acts of Parliament one in the 14. yeare of the raigne of the same king Edward the second called Exilinm Hugonis le Despensor patris filiâ— the other An. 1. Ed. 3. cap. 1. which confirmed the banishment of these Spensers Legeance then by law of nature before any judiciall or municipall lawes were recorded or reported is due to the sacred person of the king alone immediately and without any intervallum or moment of time and before the solemnitie of his Coronation and so must remain to him and his heires and entirely without any partnership with him or any intermission in default of him emnimode by all wayes and meanes It is due to his naturall person accompanied with his politike capacitis indistinctly without any partition or separation and this oath is a politicall confirmation of that Legeance It is due to him as he is mixta persona anointed by the hand of the priest as he is supreme head under Christ in all causes and oveâ— all persons aswell Ecclesiasticall as Civill The qualities prescribed by this oath are naturally incident to Legeance veritie and fidelitie to be true and faithfull and they compâ—ehend what before is spoken of faith obedience and subjection faith unto his person obedience to his lawes Subjection to his government or all to all faith subjection and obedience to his person laws and government By the ancient lawes of this Realm this kingdome of England is an absolute Empire and Monarchie consisting of one head which is the king and of a bodie politike which is the common wealth compact and compounded of many and almost infinite severall members all which the law divideth into severall parts the Clergie and the Laietie this Legeance requires a due observancie of all the Morall lawes contained in both Tables of the Decalogue To obey our king in the true and sincere worship of God according to the canonicall discipline of the Church ratified by his regall authoritie To obey him in abandoning all apostasie from Christianitie heresies schisms factions fond and fantastike opinions repugnant to the Orthodox doctrin of the Church To obey him in acknowledging a supremacie in him and a subordinate superiority in his Ministers and Magistrates over his people To obey him in all the rights of distributive and commutative justice in doing good as works of mercy charitie and pietie and eschewing evill that is all sorts of felonies fraud force deceit and all offences whatsoever which derogate from or deprave the peace and government of the Realm The performance of these duties makes a true and faithfull subject The latitude and extent of this veritie and fidelitie from the subject to the Soveraign is twofold The extent this oath first of life and member secondly of terrene honour wherein the prerogative of the king is considerable generally according to the speciall law of nature called by some jus Gentium and stiled by our common law lex rationis the law of reason and more specially according to the municipall lawes and customes of this kingdome The King is pater patria and every subject is bound by the law of nature to hazzard and adventure both life and member for the safetie of the King and Countrey either against privie and traiterous conspiracies civill mutinies and dissentions or hostile Invasions or injust warres or in the execution of legall acts of justice The Poet could say Dulci est pro patria mori a sweet thing it is to die for our Countrey and as sweet a thing it is to die pro patre patria for the father of our Countrey for indeed both come to one There may bee many causes of warre which when they are discussed and resolved by the King and State the justnesse of them is not to be disputed by
Law no need of Oathes for the administation of Law For in the first age in a long time after the deluge there was no oath heard of In the second age of the world As there was confusion of languages So there was of all other things All things were in common Noe distinctions of Dominions Possessions Inheritances by partitions Virgil. Geo. 1 Lotts and boundaries Nesignare quidem aut partiri limite Campum Fas erat Hence Confusion bred Contention and might controlled right Nimrod then began to be a mighty one in the earth Hee was a mighty hunter before the Lord and was the first Monarch who usurped power without lawes From this confused generation God calleth Abraham and gives him this charge Get. cap. 12. v. 1.24 Get thee out of thy Countrey and from thy kindred and from thy fathers house unto a land that I will shew thee And I will blesse thee and make thy name great And thou shalt be a blessing c So Abraham departed as the Lord had spoken unto him And Lot went with him They had not long dwelt together buetheir substance increased and the land was not able to beare them As riches increased so the right of property or meum et tuum began to be narrowly pryed into and hath since begotten all civill differencies and consequently all civill lawes for discussing and deciding of differencies betweene man and man There was civill dissention betweene the heards-men of Abraham and Lot and certainely it was about their substance To redresse this growing mischeife Abraham bethinkes himselfe of a partition And to prevent a division of minde descends to a division of meanes And though Vnkle unto and elder than Lot begins to stoope first in this wise Let there he no strife I pray thee betweene thee and mee and betweene thy heards-men and my heardsmen for we are brethren is not the whole land before thee Separate thy selfe I pray thee from mee c. And Abraham gave Lot the benefit of election of the land to take either the right hand or the left hand which was an example of division of possessions and distinguishing right of property for future ages As God had promised to Abraham that His seed should be in nuÌ„ber as the starres of Heaven so did his generations increase and multiply With multiplications of families Sinnes and Iniquities were also in aboundance multiplyed All sorts of people both good and bad grew up together Force and Fraud inlarged their dominions Esau was a cunning hunter a man of the field And Iacob was a plaine man dwelling in Tents Iacob had Ioseph a good sonne And so he had his Simeon Levi who troubled him Gen. 34. instruments of cruelty in their habitations Gen. ca. 49. Ioseph had one Reuben to his brother But all the rest envied hated him and conspired against him At length Iacob and Ioseph in fullnesse of yeares die From the tribe of Levi Moses is raised and preserved in an Arke of Bulrushes from the tiranny of Pharaoh to be a Law-giver a Prophet and a cheife Ruler amongst the children of Israel Prudentissimus Legislator Iustissimus Princeps ac Propheta maximus In the meane time the Isralites doe grieviously suffer under the tirannicall oppressions and impositions of Pharaoh and Moses is sent with the assistance of Aaron to deliver them After whose miraculous deliverance by the overthrow of Pharaoh and his host in the red sea Moses and the Israelites having sung praises unto God erected an Altar in memorial of their bl ssed deliverance Moses disposeth himselfe to a setled government of the people And hee sate to judge And the people stood by Moses from the morning to the evening The first Institution and Subordination by Moses IN this course of Iudicature Moses was much â—â—combred and over-charged with variety and multitude of causes which Iethro his father in law observing doth gently admonish him in this wise The thing that thou dost doe is not good Thou wilt surely weare away both thou and this people that is with thee thou art not able to performe it of thy selfe alone And then doth Counsell him for the ease of himselfe and the people to elect subordinate officers Thou shalt provide out of all the people able men Such as feare God Exod. 18.2 men of truth hating covetous nesse And place such over them to be rulers over thousands of hundreds of fifties of tens And let them judge the people at all seasons c. In pursuit of this grave advice Moses accordingly did choose able men out of all Israel and made theÌ„ heads over the people rulers over thousands rulers over hundreds rulers over fifties rulers oftens they judged the people at all seasons the hard causes they brought unto Moses but every smal matter they judged themselves Thus Moses upon consultation with God having performed and put this holy Counsell in practice His incomprehensible Deity vouchsafed the honouring of Moses with his own presence upon Mount Sinai And therewith His immediate voice proclaimed the mora Law Containing all the grounds of Equity and Iustice and gave them unto him ingraven in two tables of stone The first promulgation of Lawes and the beginning of Legall Oathes for administration of Iustice AS Moses received them from God so in discharge of his sacred function he faithfully injoyned them unto the people And as falshood and fraud increased Soe for avoiding and discovery thereof and for true execution of Iustice Heb. 6.16 As also to put an end to strife and controversie The ministration of legall Oathes began to grow in use And not long after the receiving of the Decalogue by that great Prince and Prophet It was one of his first Lawes given in charge unto the people If a man deliver unto his neighbour an Asseâ—or an Oxe or a Sheepe or any beast to keepe And it die or be hurt or be driven away no man seing it Then shall an Oath of the Lord be betweene them both that hee hath not put his hand to his neighbours goods and the owner of it shall accept thereof c. By this it is evident that Moses from Gods mouth and by inspiration of his holy Spirit was the first personall Legislator in the world and the first distributer of Iustice by subordination of Rulers and Magistrates and the onely patterne for all succeeding Princes which moved Eusebius to say A Deo igitur Lex originem habet Et eam mortalium omnium primus Moses Hebraeis constituit Quae caeteris deinceps hominibus condendarum Legum haùd dubiò exemplar fuit The first imitation of Moses in this Kingdome by King Alfred THat Moses was a Patterne and Exemplar of making lawes and managing of them by inferior Ministers in this our ancient and famous Island of Great Britaine renowned in the constant succession and preservation of her lawes notwithstanding the permutation and change of goverment by the Conquest and rule of severall
when men ought to intend devotion and other workes of charitie for remedie of their soules and sometimes after the gule of Harvest when every man almost was busied about the cutting and carrying of his Corre Plowd fo 316. b. The Calends of Aug. or the feast of S. Peter ad vincula 31. Edward 3. ca. 15. whereby the people were much grieved and disquieted King Edward the third upon the grievious complaint of his Commons desiring the quietnesse of his people did ordain and stablish that every Sheriffe from thenceforth should make his Tourne yearely one time within the moneth after Easter and another time within the moneth after Saint Michael and if they held them in other manner that then they should lose their Tourne for the time As it was restrained in time 2 Place So it was to place and persons it must bee kept within the precinct and libertie in loco debito et consueto If it be holden otherwise it is coram nonjudice And the matter of cognizance must bee within the view For 41. Edward 3. fo 31. Kyrton cites a Case wherein the Lord avowed the taking of an amerciament for the stopping of an High-way which in rei veritate was out of the Iurisdiction of the view and therefore the Plaintiffe recovered dammages If the Sheriffe shall keepe his Tourne in loco in consueto he may be indicted and punished for it 3 Persons Dyer 151. As for the persons Although in the time of King Arthur Omnes Proceres Comites Barones c. were to sweare and doe their suit reall in pleno Folkmote yet by the Statute of Marlebridge Marl ca. 11. it is thus provided by way of restraint De turnie vicec provisum est quod necesse non habeant ibi venire Archiep scopi Episcopi Abbates Priores Comites Barones nec aliqui viri religiosi seu mulieres nisi corum praesentia ob aliam causam specialiter exigatur c. So by this Statute All clergie and religious men All Earles Barons and all women are excepted and exempted and by the law al other people under the age of 12. years their presence being not necessary there in regard they are never sworne upon any inquests But all freeholders terrtennants and other persons inhabiting within the precincts of the Leet ought to appeare and do their suit and tennants in ancient demesne are not bound to come to the Sheriffs Tourne and consequently not to any Leet If any of the said persons mentioned to be exempted Fitzâ— na Bre. f. 158.161 or if any in wardship to the King should be distreyned to do their fuite the law hath provided severall forms of writs De exoneratione sectae for discharge of every of them Whatsoever the law prescribes or restreines in the Sheriffes Tourne Broo. Leet 26 22 Edw. 4 22. the same is binding in a Court Leet and it was agreed for law that the power of a Sheriffein the Towne and a Steward in the Leet were all one onely the Leet have power to enquire and take presentments of nusances and offences aswell in the Courts after the feast of Easter as after the feast of S. Michael Fitzâ— Leet 11 whereas the Sheriffe in his Tourne after Easter ought not to enquire of any action popular c. but only to take suite of the resiants and other suitors and to take the view quod trithinga teneantur scilicet That all above the age of 12. years come and appeare there to doe their suite and to take the oath of Legiance if they were not sworn before For after a person is once juratus in decennaria or ad fidem legeanciam Domini Regis hee is not compellable to be sworne againe As a Leet is derived by grant from the crown Forseiture of a Leet so by divers causes that may be seized into the Kings hands and returne to the Crowne againe and if for any just cause it bee forfeited and seised then must the resiants and suitors againe attend and doe their suite at the Sheriffes Tourne and what is omitted in the Tourne might be presented in the Kings bench for in the case of Iohn Charneles Edward the third Belknappe sets forth the law to be that if a thing were not presented within the Lords view then it should bee presented in the Sheriffes Tourne and for default there it should bee presented in the Kings Bench when the King came into the countrie by which it plainely appeares as before is expressed that the Iustice of the Kingdome was at first wholly in the hands of the King and immediately derived from his person to Subalterne Officers To answer one Objection for the time that all Leets are not kept strictly infra mensem after Easter and Michaelmas VVHere there are ancient Customary Courts of Tenants in ancient demesne or such like that were ever exempted from the Sheriffes Tourne and the Lords of such lands had their owne Tournes that of Easter being called Turnus de Hockday and that of Michaelmas Turnus Sancti Martini as in the Bishoprick of Winton and other places those Courts are left to their Arbitrary keeping either before or after the moneth or at other set times according to their ancient respective Customes and not restrained by any Statute Britton the tenour of whose learned worke runneth in the Kings name Edward 1. as if it had beene penned by himselfe answerable to Iustinians Institutes doth there in the first salutation of the Kings subjects with Edwardus Dei gratia c. set forth That because his peace could not well have its being without Law he caused the Lawes then used in this Realme to be put in writing and did thereby command a strict observation thereof in all things Saving a power to repeale alter and amend all such things as should seeme meet unto him with the advice of his Earls Barons and others of his Councel and saving all customes unto those as by prescription used the same time out of minde so as those usages were not discordant unto right At that time being 5. Edward 1. those ancient customarie Tournes within many particular Lordships were in use not subject to the Sheriffes Tournes and so not within the meaning of the Statute of 31. Edward 3. cap. 15. which being made long after extendeth not to any Leets but such as were and are derived out of the Sheriffes Tourne and so it was admitted by the Iudges that the Leet of another Lord was not within the Statute but the Leet of the Tourne Brooke Leet 21.6 Hen. 7.2 And so by necessarie consequence All Leetes derived out of the Sheriffes Tourne and no other In what Cases and by what meanes a Leete or Franchise may be seised or forfeited or the Lord damnified IN all grants of any Liberties or Franchises there are commonly two conditions one in facto which is alwaies explicite as to pay mony or to do or not to do any other act c. 2.
Condition in lege which is tacite and implicite created by law There are two sorts of conditions in Law by the rule of the common Law 1. The one which is founded upon a Confidence and skill 2. The other without either of these There be 3. causes arising from the violation of trust or confidence and want or privation of skill which induce a forfeiture aswell of offices as of franch ses that is to say 1. Abuser 2. Non user 3. Refuser All which I will but summarily touch and they may all three proceed 1. Either from ignorance 2. Or from wilfulnes Abuser It is said by M. Kitchin that Court Leets are to be forfeited in quo warrante which are kept by ignorant Stewards Some make a doubt of it In Offices which concerne the meere and only private profit of the Lord without dammage to the weale publike the ignorance of a Steward can be no cause of schisme but in Offices concerning administration of justice pro bono publico as a Leet there is no doubt but the Franchise may be forfeited The Steward of thelibertie of the Abbot of Crowland Crompt Iur. so 145. by colour of his libertie of Infang-theefe adjudged a man to death and for this the liberty was seized in the Kings hands Et nulla poena Senescallo For Quicquid Iusticia fecerit de Recordo ignoranter pro defect scientiae non erit proeopunitus 2 Ric. 3. fo 10. A Lord of a Leet was fined forty shillings for that his Steward took an indict ment de morte de home in his Leet which did not belong unto it and so incroached upon the King And also took an indictment of a robberie done out of his franchise in another Countie Brook in finibus pur contempt 49. cites 41. ass p. 30. If the Lord do hold his Leet at any time after the moneth from Easter and Michaelmas it is void by the Statute of 31. E. 3.15 and all presentments void and the Lord shall lose his profits Brook Leet 17. and 21. Non user Assise of Bread and Beere and pillorie and tumbrell are appendant to the view of Franck-pledge where a man hath them by a grant from the King if he doth not keepe pillory and tumbrell hee loseth his office Brooke Quowar 8. Refuser The Abbot of S. Albon having the grant of a Gaol deteyned the prisoners for that he would not bee at the charge to sue out a Commission for their deliverie the King seised the Franchise into his hands 8. Hen. 4.18 A direction for Lords in choosing of their Stewards SIthence the jurisdiction of this ancient Court is lyable upon just cause of for feiture and seisure into the Kings hands it is necessarie that Lords of liberties as well for prevention of their owne inconvenience as for the better governement of the Countrie by due execution of the Law should select choose and appoint out of men treyned up in the studies of the provinciall Lawes of this kingdome such as must have the foure properties of Iethro his counsell Able men such as must bee viri potentes not in strength of body but in courage of minde 2. They must be viri timentes Deum that feare God and not the faces of men he that hath this vertue wants none and he that wants this is open to injustice oppression malice and all other enormious impieties 3. They must be Amantes veritatem it is S. Pauls counsell Ephes 6.14 Stand therefore and your loines gird about with veritie and having on the brestplate of righteousnesse c. 4. They must be abhorrentes avaritiam the roote from whence all evills grow 1 Tim. 6.10 That which as Bracton saith doth inducere cupiditatem when Samuel his sonnes were Iudges over Israel it was a brand upon them They walked not in his waies but turned aside after lucre and tooke rewards and perverted judgement 1 Sam. 8.3 The properties and qualities which a Steward ought to have F Let a describes the office of a Steward and giveth counsell unto Lords of Manours and liberties to provide or elect their Stewards in these words Provideat sibi Dominus de senescallo circumspecto fideli viro provido discreto gratioso humili pudico pacifico modesto qui in legibus consuetudin busque provinciae officio senescaleiae se cognoscat jura Domini sui in omnibus teneri affectet quique subballivos Domini in suis erroribus ambiguis sciat instruere ' docere quique egenis parcere qui nec prece vel pretio velit a justitiae tramite deviare perverse judicare Cujus Officium est Curias tenere Maneriorum de substractationibus consuetudinum servitiorum reddituum Sectarum ad curiam mercata molendina Domini advisus franciplegiorum aliariumque libertatum Domino pertinentium inquirat c. By which Description it is to bee observed that a Steward ought to have a double qualification 1 In Moralibus 2 In judicialibus whereby he must be guided as well in the keeping of Court Barons for the profit of his Lord as for the honour of him in the government of Leets for the good of the Common weale 1 In Moralibus A Steward must bee qualified with these properties before mentioned circumspection fidelitie providence discretion humilitie peace and modestie which may be reduced into these two generalls S. veritie and Industry the one proceeding from the heart the other from the hand his diligence or industry must be tempered with 1 Circumspection 2 Providence 3 Discretion otherwise it may incurre the perill of temeritie and precipitance which commonly prove fatall in all actions Canis festinans caecos parit catulos His veritie must be attended with fidelitie Co. l. 5. Epist humilitie peace and modestie Veritas secum ducit Comites simplicitatem unitatem pacem tandem 2. Iudicialibus and therein he must be attended with foure properties 1 Scientia hee must know himself or be expert in the Lawes and customes of his Countrey and have ability to instruct or direct the Bailiffes and other ministers in dubious things wherein they may erre 2. Misericordia he must spare the poore not rack poore tennants nor grinde their faces hee must not bee outragious in imposing excessive fines in the Leets but as Iudges in other Courts are or ought to be moderate and discreet secundum quantitatem delicti not beyond the demension of the offence for excessive amerciaments are against the law Excessus in re qualibet jure communi reprobatur Coo. li. 11. fo 42. Mercy and truth must meet together righteousnesse and peace must kisse each other Psal 85.10 3 Iustitia the Prince of vertues the faithfull Companion of this life without which no humane societie can subsist Iustice knowes no father mother nor brother Persona non accipit sed Deum imitatur A Steward must put on this Armour And must neither be drawne by price nor prayer neither by lucratotie
was continued and the authoritie of supervisors inlarged 5. Eliz 13. for the taking and carrying away of rubbish or the smallest broken stones of any quarrie or quarries within any such parish without licence controllment or impeachment of the owner or owners so much as shall bee deemed necessarie for the amendment of high wayes and in default of any such quarries to digge in any private groundes for any gravell sand or sinder and to gather stones lying upon lands or grounds so as the said digging bee not in the garden house orchard or meadow of any person or persons and under other provisions in the said statute mentioned It is further enacted that the heies fences dikes or hedges next adjoyning on every side to any high or common fairing wayes shall from time to time be diked scoured repaired and kept low and all trees and bushes growing in the high wayes cut downe by the owners of the ground or soile whereby the wayes may be open and the people have the more readie and easie passage in the same If any person shall not doe it he forfeits 10. shillings 18. Eliz. 9. There must bee yearely six dayes used and imployed in the reparation and amendment of the high wayes before the feast of the nativitie of S. Iohn Baptish and knowledge thereof to be given in the Church the next Sunday after Easter and upon the said dayes the parishioners shall endeavour themselves to the mending of the wayes and shall bee chargeable as followeth viz Every person for every plow-land in tillage or pasture within the parish And every other person there keeping a draught or plow shall finde and send at every day and place one Wayne or Cart furnished according to the custome of the Countrey with all necessaries meet to carry things and also two able men with the same upon paine of every draught making default 10 shillings Every other housholder and every cottager and labourer not being an hired servant by the yeare shall by themselves or one sufficient labourer upon every of the said dayes worke there every of the said dayes upon paine every one making default each day twelve pence Every person except such as dwell in London that shall be assessed in subsidie 5 pound in goods or 40 shillings in lands or above and being none of the parties chargeable by any former law but as a cottager shall finde two able men every of the said six dayes to labour in the high wayes Every person having a plow-land in severall parishes shall be chargeable to the making of the wayes where he dwelleth Every person keeping in his or their hands severall plow-lands in severall parishes shall be charged to finde one cart or waine c. furnished for the amendment of the high wayes within each severall parish All occupiers of lands adjoyning to the ground so adjoyning to any such high way where any ditching or scowring should or ought to bee shall from time to time ditch and scoure in his and their ground so adjoyning whereby the water conveyed from the high way over the ground next adjoyning may have passage over the said ground next adjoyning upon paâ—ne for every time for every rod not so ditched and scowred 12 pence If any having any ground adjoyning to any high way leading to any market towne shall cast or scoure any ditch and throw the soyle into the high way and suffer it to lye there by the space of six moneths shall forfeit for every load 12. pence The moitie of the forfeitures by all these three severall Statutes 1 2. Phil. Ma. ca. 8. 5 Bliz. 13. 18 Eliz. 19. shall be to the Church-wardens to bestow upon the ways and Stewards of Leets have power to heare and determine all offences c. Popular Annoyances ALL common or popular Nusances done to diverse and sundry of the Kings Subjects are inquirable as this ancient Court and so are all trespasses at the Common Law being popular Boundaries IF any ancient bounds metes or landmarkes be withdrawne and taken away such as distinguish hundreds parishes tythings Common Common meadowes and common fields to avoid confusion and consequently dissention are here inquirable 18 Edw. 2. Cursed is he that removeth his neighbours land-marke and let all the people say Amen And it is commanded in Deuteron Thou shalt not remove the ancient bounds which thy fathers have made It is to be observed that divisions by lots and boundaries have beene ever held in great esteem in all ages even amongst the Heathens For the taking away of a particular boundary or mete which concernes onely one man an action of trespasse lyeth And so I finde in the Regist fo 107 De petris pro metis positis abstractis Hedge-Breakers IF there be any common breakers of hedges within the Leet who teare up frithes and fences and leave their neighbours ground subject to incursions of Cattell and are a meanes that many trifling actions of trespasse are set on foot to the disquiet of his Majesties Subjects Pound-Breach IF any breake any common pound or pinfold which is Custodia legis to take any distresse out of the same though the distresse be tortious and without cause yet the poundbreach is unlawful for that the cattell were in the custodie of the Law and the owner might have a Replevin If any shall rescue and by force take away any cattell or other thing which is distreyned for any rent amerciament or other cause before it be impounded or in any other safe custodie it is presentable Rescous IF any commit any Rescous within the libertie upon the Sheriffe or his Bailiffes or any the Kings officers in disturbance of them from taking and detaining any person arrested Bloodshed IF any person commit any assault whereby bloodshed doth ensue or doth make any affray or outrage whereby any mutinie or disturbance doth arise amongst the Kings leige people it is popular and presentable 1 R. 3 fo 1. Bro. Presentm 7 Leet 26. Generall Grievances THe subsequent offences will descrve that marke or character in regard they are generally pernicious to the Common-wealth by their fruites and example and are punishable by the common Law Or because they are generally prohibited by Statute Lawes for the good of the publike weale And in the first rancke are the evill members of a State and Realme of which regiment the common Barretor may well be the ringleader Common Barretors IF there be any common Barretors within the libertie they are of both sexes Scoulds Brawlers common malefactors disturbers and disquieters of their neighbours A common Barretor is well discribed Co. li. 8. fo 37. to be a common mover and stirrer up or maintainer of suites quarrells or parties either in court or countrie 1 In Courts of Record or in the Countie Hundred and other inferiour Courts 2 In the Countrey three manner of wayes 1 In disturbance of the peace 2 In taking or deteyning of possessions of houses lands or goods which are in
every private person The end of all warre should be peace bellum geritur ut pax acquir atur 1 It is just cause of warre when publike negotiation and commerce is interrupted or disturbed and for recoverie of things wrongfully and by force taken fiom us by forraigne enemies 2 Or if any shall goe about to usurp upon the Kings right of dominion in any of his kingdoms It is just cause of warre After that David by Gods direction went up to Hebron and was anointed king over the house of Iudah upon the death of Saul he maintained a long warre against Ishbosheth the sonne of Saul for usurping the kingdome of Israel 2 Sam. 2. The revenge of an injurie or disgrace dispitefully done either to a Prince or to his Embassadors is likewise a good cause of warre when Naash the king of the children of Ammon dyed and Hanun his sonne succeeded in his stead David sent messengers to comfort him upon the death of his father their entertainment was not suitable to their errand Hanun by the advice of his Princes tooke Davids servants and shaved them and cut off their garments in the midst a natibus usâ—â— ad pedes and so sent them away For this great disgrace and abuse the text faith grandem contumeliam sustinuerunt David did justly wage battell against the king of the Ammonites Chro. 1.19 He did the like against Sheba the sonne of Bochri a man of Belial for blowing a Trumpet and solliciting the men of Israel to revolt from David to him Samuell 2. chapter 20. â—â—â—y other particulars might be here instanced Next how farre the preeminence of a king as to life and member is to be considâ—red Life and member considerable by the common and statute lawes specially by the common and Stature lawes of this kingdome by the common and positive lawes of England The subjects are bound by their legeance to go with the king and by the Commandement of the king in his wars aswell within the Realme as without and this doth copiously appeare by severall statutes which seeme to bee but declarative of the common law as 1 Ed. 3. cap. 7. which mentions the conveyance of souldiers into Scotland Gasconie or elsewhere 18. Hen. 6. cap. 19. which maketh it felonie If any Souldier retained to serve the King in his wars doth not goe with or doe depart from his Captaine without licence the preamble of the Statute tels us that the Souldier so doing did as much as in them was decay the honour and reverence of the king And by the Statute of 7. Hen. 7. cap. 1. Forasmuch as the offence of departing or not going did stretch to the hurt and jeopardie of the king the nobles of the Realme and all the Common weale thereof therefore he or they so offending should not injoy the benefit of Clergie By the Statute 11. Hen. 7. cap. 1. It is expressed that the subjects of this Realme are by reason of their allegeance bound to serve the Prince from the time being in his wars for the defence of him and the land against every rebellion power and might reard against him either within the land or without and this statute together with some others were adjudged Trin. 43. Eliza. to be perpetuall acts and not transitorie for the kings time only wherein they were made As peace is the true end of warre so peace must be preserved that warre may be avoided In the times of peace there must bee preparations for warre by causing musters and martiall meetings to be assembled at times convenient And therein the Lievtenants their Deputies of each severall Countie with Muster-masters and other subalterne officers have a speciall interest of imployment and therefore provision was made 4. 5. P. M. for the better ordering of Musters Captaines and souldiers In the time of peace the common and municipall law of this kingdome provides for suppressing of all rebellions insurrections and rietous assemblies To which end the king commits the custodie of each countie to an officer very ancient with us called a Sheriffe who for the service of the king and peace of the countrey hath power to raise the power of his countie And every subject is bound to attend him as the kings deputie in causes of publike service warranted by the lawes and this officer is to dwell in his proper person within his Baylywicke that he may the more readily attend the kings service The second point is terrene honour Terrene honour what it is and herein I must walke warily passibus aquis First must be determined what is meant by terrene honour Some would have it to be the outward worship and ceremoniall honour that wee can doe in this world to the king next to the service of God If that were only intended by these words it were but a shadow in regard of substance for in devoting our life and blood is comprehended the highest pitch and streyne of honour that might be Our Saviour Christ his words Matth. 6.25 Is not life more worth than meate and the body than raiment will fully satisfie us that the life of man is above all worldly riches and honours and therefore something else must be conceived out of these words more than a shadow or ceremonie By the first commandement of the second table in the subdivision of the persons to whom honor is due there is in the opinion of many Divines a kind of particular honor or esteem to be ascribed to a man who is more wealthy than his neighbour in regard of the talent of terrene riches wherewith God hath endowed him and thereby enabled him to supply the King and the common weal by rendring his respective dues and duties unto them in a larger proportion than other persons who are inferiour in their worldly meanes Dat census honores Then sithence all riches wealth and substance are called terrene quiae terris terrenis accrescant because they proceed and have their being out of earth and earthly things and are the causes of particular honour and esteem and of distinguishing the degrees of men as husbandmen Yeomen Gentlemen Esquires and the like and also of cradesmen both of Merchandize and manufacture according to the customes of this Kingdome It will follow by good consequence that as the King is to bee honoured and obeyed with life and member so with earthly substance according to the demension thereof and the degree of each mans earthly honour Saint Paul in the generall cleares this point of prerogative jure divino Romans 13. Omnis anima potestatibus sublimieribus subdita sit c. Let every soule bee subject to the higher power For there is no power but of God verse 2. whosoever therefore resisteth the power resisteth the ordinance of God And the Apostle pursues it with Ideo necessitate subditi estote c. verse 5. Wherefore yee must needes bee subject not only for wrath but also for conscience sake Verse 6. For this cause pay
of his Lawes which is twofold 1. By Castigation correction or correption of the Malefactor either by privation of life confâ—â—â—â—ion of goods mulcts and penalties and by 〈◊〉 of libertie and other corporall infliction Secondly by releeving and comforting the offended and greeved Subject with restitution or retaliation according to the nature and quality of the respective causes And this cannot bee performed wholly by himselfe in his owne person but by a subdelegation of Iudges Magistrates and Ministers And them also if he find in any of them any perverse or corrupt aberration from the rules of Iustice. He hath power and will to reprehend and chastise or else who could challenge any freedome of Protection For if the King and His Councell should as some conceive by that forecited clause of Nullus lâ—ber homo c. bee abridged from hearing and examining complaints either in causes of extraordinary consequence or against persons of greatest eminence I meane not every cause that may be regulated by ordinary Iurisdiction Then bootlesse is that royall promise in the great Charter Nulli negabimus aut differemus Iustitiam c. Then must hee needs violate his solemne oath and vow at his Coronation faciam fieri Iustitiam c. His eares must be therefore open to the crie of the poore the fatherlesse and oppressed or else he declineth the true properties of his Vicegerency under God who is refugium pauperi Psalm 99. The LORD will bee a defence for the oppressed even a refuge in the due time of trouble This Princely office of Protection is lively described in the 72. Psalme made upon Salomon Give thy Iudgement O God unto the King and thy righteousnesse unto the Kings sonne verse 2. Then shall hee judge the people according to right and defend the poore verse 4. Hee shall keepe the simple folke by their right defend the Children of the poore and punish the wrong doer Here is his Iustice of Consolation to the oppressed His Iustice of Castigation to the oppressor To that heavenly Poem of the Psalmist some allusion hath bin by an earthly Poet Protegit insontes castigat jure nocentes Defendit totum sub ditione gregem So much of his Iustice BY the other prop or pillar of his Imperiall Crowne S. his mercy the King hath 1. Potestatem remittendi 2. Potestatem dispensandi 1. A power of remission or pardon 2. A power of dispensation and both in imitation of the sacred deity of Heaven whose immediate Minister and Lievtenant the King is upon earth within his owne dominions In the old Law Moses by Gods direction did appoint unto the Children of Israel Cities of refuge as so many Sanctuaries of Mercy whether the ignorant man slayer who hated not his neighbour in times past as also the casuall homicide might flee and live But if a man hated his neighbour laid waite for him rose up against him and smote him that hee dyed and fled unto any of those Cities Then the Elders or Magistrates of the Cutie should send and fetch him thence that he might dye by the hand of the avenger Deut. ca. 19. ver 3 4 5 11 12. In this Island were heretofore Sanctuaries places of refuge for such offenders to whom the Law intended Mercy and these were in use many hundred yeares but in this last Century they were abridged by the Statute of 1. Iacobi 25. So much of all Statutes as concerne Sanctuaries or ordering or governing of Persons in Sanctuary were repealed and made utterly voyd Besides the refuge of Sanctuaries The mercie of the Law in many cases as homicide in heat of bloud without prepensed malice theft and such like did afford the benefit of Clergie And it doth at this time in a forme different from former times For now in stead of delivering the Malefactor over to the Ordinary to purge himselfe hee is admirted to read before the secular Iudge And if the Ordinary or his Deputie pronounce legit ut Clericus Then is hee to be discharged with a stigmaticall brand in his hand as a warning to come there no more and he forfeiâ—th his goods only If non legit were pronounced Then is the offenâ—â—â— to suffer death for his transgression But this kinde of Mercy is not absolute but conditionall The most perfect mercy as from God so next under him from the King is Pardon which is a French word signifying as much as pax venia or gratia and is used in the Common-Law for the remitting or forgiving of a fâ—lorious crime or other offence And it is twofold 1. Ex gratia Regis of the Kings mâ—ere grace and Clemency 2. Per cursum Legis by the course of Lawes that is according to the ancient Lawes and Customes of the kingdome Pardon of grace is againe threefold 1. Parliamentary which is called free and generall granted upon the happy close and solution of a successefull meeting of the three States The common good and benefit whereof is well and sensibly knowne to all His Majusties loving and obedient Subjects and this kinde of pardon is pleadable at all times 2. Vpon the KINGS Coronation or other grand and extraordinary solemnity But whosoever will reape the fruit hereof must at some charge within one yeare and a day sueit forth under the Kings great Seale Or else he is utterly debarred of it These two sorts of pardons are ex generali gratia to all that are not excepted therein and will take hold of the benefit thereof 3. A pardon ex speciali gratia is that which the King in some speciall regard of the person his merits and future hopes of good service or other Circumstances or in consideration upon some intelligence of the fact or manner of the conviction by any corrupt malicious or illegall proceedings doth extend and afford upon his absolute Prerogative and power And it is so far from violation that it well stands with the observation of his oath 2. Pardon by course of Law is that which the Law in equity vouchsafeth for a light offence as homicide casuall His power of dispensation is a temporary qualification of the rigor of particular lawes emollit non tollit legem as one saith It doth mollifie not nullifie a Law And as the Civill Law hath it Ille qui dispensat non tollit legem sed ex causa in certapersona vel ad tempus remittit Et dispensatio quandoque est necessaria Panorunt super decret capit proposuit Hee that doth dispence with a Law doth not abrogate the Law but for some certaine cause in respect of persons or times doth remit the rigor And dispenlation sometimes is very necessary Positive Lawes are but leges temporis if so Then are they dispensable according to the necessity of times or occasions The rigid Pharisees taxing the Disciples of Christ for that being an hungred they did upon the Sabbath Day begin to plucke the eares of Corne and to eate Our Saviour puts them two cases by way of