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
Hovedens words this I will note here that Henry the second made Ranulphe of Glanville chief Justice of England by whose wisdome the laws underwritten were made which we call of England make no new law nor that chief Justice a law-maker they explain what is intended by the laws of Henry the first his Grandfather for the laws there underwritten w Hoved. pars pest 6â—0 are meerly King Edwards laws confirmed by William the first king Richard the first swears to keep the good laws c. x Paris in Rich 1. without saying of St. Edward which yet can be no other those as is shown had got the name those must be meant by the expression good lawes the kings before and after swore to keep them K. Iohn absolved from the Popes thunder though at his Coronation by that oath to destroy bad laws substitute the good to exercise right Justice he had sworn the same y Ma. Par. 197. is forced to swear that he will as there revoke or restore the good laws of his ancestors here the expression good lawes is interpreted and especially the lawes of king Edward z Id. 239. In the same place where king John commands that the lawes of his Grandfather Henry be kept this must be intended of the first laws of his great Grandfather Henry the seconds Grandfather so often mentioned in the controversie betwixt Henry the second and that Martyr of the Roman make without a cause disobedient unruly Becket a Hov. 492. in H. 2 called by that king as before his Grandfathers lawes I say his great Grandfather Henry the first before here recited where Henry the first grants lagam Edwardi regis the Law of king Edward A Charter of which Stephen the Archbishop of Canterbury produces in the very next page of Mat. Paris after the absolution which well might be produced several transcripts of that Charter being sent by Henry the first to be preserved in the Abbies of all the Counties and there tells the Barons of the kings promise which he forced him as he says at his absolution to make that was to take away all injust laws and the good and just laws to wit as he still the laws of king Edward to revoke for restore and cause to be observed by all in the realm And now as he goes on there is found a certain Charter of king Henry the first by which if ye will your lost liberties you may to the Antient state revoke the transcript agreed word for word with the Charter b Ma. Pa. hist 55.210 the great sticklers for the lost liberties for the good and just laws for St. Edwards laws are all of them Normans or Norman-French such as came in since Edward and being setled here for some generations now made a great part of the whole amongst which are Fitz-walter Marshal of the Hoste of God and of holy Church this was his stile in the succeeding wars Vescy Percy Ros de Bruis Stuteville as there Saerie of Quincy Earle of Winchester the Earle of Clare descended from the Norman Gislebert Bigod Vere Fitz-Warin Marshal Beauchamp Manduit Fitz Allen Mandeville * Estoteville Munhrey * Mowbrey Montfichet Munifichet Montacute de Gant Laval c c id 254. These when king John asked them what laws they would have answered not Sir We are the Norman Conquerours give us this people for a spoile a prey make them our villains but quite another thing they offer him a Scedule for the greatest part as this Monk containing the antient laws and customes of the realm the chapters of the laws and liberties says he which the great men the Barnage or Baronage as in other places he cals them sought to be confirmed were partly written above in the Charter of king Hen. partly taken out of the ancient laws of king Edward d id ibid. Alll which lawes with much adoe were confirmed by king John this Scedule is the same and everywhere agrees with our Magna Charta or grand Charter and that of the Forrest granted and confirmed by king Henry the third called then by this Author the long required liberties e id 323. or rather by the whole Clergy and Nobility who tel the king they would give him the fifteenth which he desired if he would grant them the long required liberties which says this Historian the king granted and presently Charters were writ one of the common liberties c. And strengthened with his seal and one sent into every County But says he the tenors of the Charters is had above more expresly for here he recites not a word of them So that as he still the Charters of both the kings are not not found in any thing unlike u 5. H. 3 l. 1. Mort. dancest In. 323. in an 1224 the 8 of the King as he yet th charters has an 9. In the year foregoing this King was sought to by the Archbishop of Canterbury Stephen and the other great men the Barons at Oxford where he held his Court to confirm the liberties and free customes c w id 316. Which he did not then do but sent his letters or writs to all theâ— Sheriffs of the realm to cause twelve knights or legal men of every County to enquire upon oath what were the libertics in England in the time of king Heary his Grandfather so he is yet called x id 317 Ma. Wâ—st the breakers of the Charters are Excommunicated with candles burning cast away extinguished and cast away stinking y Id. 861. Thus we see the stream of the laws of king Edward the ancient liberties and free customes some times running freely sometimes weakly sometimes stopped in their course at last have brake through all the Dams have mixed and incorporated with the great Charter whose basis and foundation they are z Nobilis D. Rog. Twisâ— den praefat in Ll. w. 1. H. 1 there still in being and still the fountain of the Common Law The great Charter raised upon this basis in one of the Statutes of confirmation is commanded by king Edward the first to be allowed by the Justices in judgement as the Common Law a 25. E. 1 c. 1 So that well might the Lord Cook say The great Charter is but a confirmation or restitution of the Common Law b Iast 81 It hath been confirmed above 30 times and by a Statute if any Statute be made against one of these Charters it is to be void c 42 E. 3 c. 1 â— which if it were intended not of the time past but of the time to come I see no such absurdity in it as some mens over wise policies would fancie some parts of it being as moral and immutable as the Decalogue it selfe As those That no man shall distraine for more service then is due no man shall be amerced for a small fault but after the manner of his fault no man shall bee destroyed
intent to hurt the adversary they see not before how great it is and however are too weak of themselves were the right of their side and most plain to manage it to the best advantage It may seem strange too why the ordinary course of our Circuits should not now be sufficient why we should need quicker returns of this sun of Justice unlesse we think our selves the worst of all men and our age the most corrupt every day falling further from the piety of our forefathers and more prone to oppresse and devoure one another were there a recession from the known Law after a few of the first judgements not to go on far it may be feared there would be no small discord and contrarieties in the determinations where the Courts should be so numerous not derived from one fountaine nor judging by one rule that would be Law and right in one County which would be wrong in another and which is the greatest curse in the Law that which should be most certain would be without any certainty at all To proceed instead of Conservators of the peace at the common Law now antiquated there are Justices of peace of larger power then the Irenarchae of old appointed to take care not so much of the publique discipline and correction of manners as for the peace and security of the highwaies m Cod. Thead in rub de Irenarch l. 1. Their name shews why they were instituted They are in their sessions quarterly to heare and determine all Felonies breaches of the peace contempts and trespasses They are to suppresse riots and tumults to restore possessions forceably taken away to examine felons apprehended and brought before them To provide according to the Statutes for impotent people and maimed souldiers to punish rogues beggers forestallers and ingrossers c. to commit or bind over offenders to the Sessions or Gaole to take recognizances for the peace c. such a form saies the Lord Coke of subordinate government for tranquillity and quiet c. as no part of the Christian world hath the like if the same be duly executed n 4 Inst 170. suites There are other Coures for administration of justice of narrower jurisdiction and confined in smaller limits of some of which I have spoken before yet able to put an end so small differences and ordinary trespasses not to be prevented sometimes amongst neighbours if men would be so contented Who commonly themselves make the Courts below thin and are the causes of the troubles they seem to detest let the quarrel be as trivial as is imaginable for an Asses shadow yet as in some Countries the custome is to threaten they wil have a London proces for him the poorest clownes wil trudge to London on foot from the farthest parts of the North or West more miserably then Carriers horses and undoe themselves which is no hard matter with one journey rather then not discharge their full spight who if they return not back as merrily as they set out they may thank themselves But because delay is charged up on the Courts not onely as an heynous crime but such as must by all means be born with them inseparably inherent to them something I wil speak of that I wil make it evident that delay is more odious to the Law then to those who complaine of it and that it bred from nothing else but the corruption without We finde in the Saxon lawes not onely one which fines the Shieriffe for doubtlesse of him is the word gtrtfan there meant o V. Ll. edu sen c. 5.11 who sentences not according to right after the testimony of witnesses p ibid. Ll. c 5. but also another commanding the Shieriffe to keep his Court to have his Assembly which now we call the County Court as the words and institution of King Edward the elder every moneth And that every man may have justice and every plea an end at the day when it comes whoso omitteth this still as the Law he shall make amends c. q ibid. c. 11 like that of the twelve Tables SOL OCCASVS SVPREMA TEMPESTAS ESTO We need not wonder that suits could be so prepared or rather that so little could be in them that they could be dispatched in a day if the plainnesse of the age before noted be considered when the folcland the possession of the rural man passed without writing and the bocland not to be aliened if there were such a condition in the writing r Ll. Aelfr c. 37. in a few words No man might change any thing but in the presence of the gtrtfan or Baily or of the Masse Prieâ—t or of the Hordre or of the Lord or the soile c Å¿ Ll. Aethelst c. 10. and no man might buy beyond twenty pence but within a Town before the Portgreve other tenth man or with the Shieriffes witnesse in the Folcmote t ibid. c. 12 To look downward Magna Charta has it We sell no man nor deny or delay no man justice and right u c. 29. It is a maxime in Law Lex semper dilationes exhorret The Law alwaies as Markam eschewes delaies w 22 H 6.40 a.v. w. 1. c. 40 44 45. w. 2. c. 25. sta Glou. c. 2. The Barons of the Exchequer are commanded to doe right to all men without delaie x 20 E. 3. c. 2.28 E. 1. c. 10. they are sworn to it y 4 Jnst 109. The common Law requires often that full and speedy justice according to the words of those wâ—its be done to the parties z Na. Br. 23.182 4 Just 67. all writs of Praecipe quod reddat are That justly and without delay he render c. all Judiciall Writs are without delay c. When any Court makes delayes and will not give judgement the Writ de procedendo ad judicium lies The words of which are Because the rendring of judgement of the plea which is before you c. hath taken long delayes c. We command you that you proceed to give judgement thereupon with that speed which is according to Law and Custome When execution is denyed the Writ of execution of judgement lyes by which the Justices are commanded to canse execution to be done without delay of the judgement lately given a Na. Br. 20. v. 2. Jâ—s 270 271. There was a Court raised by Statute for redresse of delayes in the great Courts where yet the delaies are not imputed to any foul play of the Ministers of justice The words are Because diverse mischiefes have happened of that that c. the judgements have been delayed sometimes by difficulty sometimes by diverse opinion of the Judges and sometimes for some other cause it is assented c. a Prelate two Earles and two Barons henceforth at every Parliament shall be chosen which shall have Commission and power of the King to beare c. the complaints of those that will complain to
them of such delaies c. and to cause the same Justices to come before them c to hear the cause and reasons of such delayes which cause and reasons so heard by good advise of themselves the Chancellour Treasuâ—er the Justices of the one Bench and other c. shall proceed and make a good judgement c. if the difficulty were so great to require it they were to bring the tenor to the next Parliament Where a finall according as this Statute was to be taken according to which the Judges were commanded to proceed to give judgement without delay b 14 E. 3. c. 5. Causes have used to be adjourned out the Courts and to be determined by an assembly of all the Judges called since the Exchequer chamber as in Chudleighs case c V. 1. warranted saies the Lord Coke by the common Law and ancient presidents before this Statute The frequent use of which so he has been the cause why the Court founded upon that Statute of Edw. the 3. hath been rarely put in ure d 4 Just 68. There is a Court erected by Parliament for errours in the Kings Bench as it is called by the Statute e 27 El. 8 3â— El. c. 1. and for those who love no errours another Statute commands That judgement be given after the demurer is joyned and entred notwithstanding any defect in proces or pleading other then such as the party demurring shall particularly expresse f 27 El. c. 5 If things were truly looked into we should finde delayes and other indirect courses to proceed from the artifice and unjust subtilties of suitors of those who prosecute bad causes to infest and wrong other men and from the cheating Mountebanks a skum of litigious men of no rank nor quality nor of any study in the Law who undertake them Impostors more doted on then those of the profession famous for their integrity and industry really and honestly understanding Impostors rather to be listed under the notion of Incendiaries and common Baretors then of any others catching at any thing refused by the honest learned practiser venturing to soder the most broken title by sleights and false daubings to the ruine at last of those who imploy them though not without some mischiefe and infinite vexation of the adversary and the injust Client having consumed himselfe much is encouraged not to flinshe for what follows is blown up with fresh hopes tampered with new shifts and arts of reviving till he has given himselfe wholly up till he is wilful and at last like a Gamster swearing over his last stake he loves every tergiversation and struggles with all his power and cunning to avoid the disgrace and losse of being overthrown when he must see while there is any justice left it cannot be avoided but when this blow hits him though himselfe was the worker and the motion began and continued from his own hand then he implores the faith of God and man Hence is a never dying quarrel to the Lawes the justly deserved calamity is imputed to nothing else If deceits and wrong may not be secure and happy the Lawes shal be cursed and blasphemed like Tacitus his Gods rather carefull of any thing else then to provide as he prophanely for our safety But in these exceptions to the Lawes the kindnesse would be wonderfull if the professours should goe free as it might we meet with an old censure which at the first fight seems something Councellours which includes the professors of all Laws alike it is this That the Lawyers of the best quality and fame one and another all of them seldome refuse any man and since their cannot be a right of both parties oftentimes defend the wrong which in good conscience they ought not nor cannot wish should prevaile To this I reply every right is not clearly seen nor every wrong suddenly known * 4 Reppreface of late some Statutes are long and full of perplexities ill penned here are late and new inventions in assurances which the eye of the Law before never beheld Many unskillful Empericks are employed about wills and Conveyances where if the words of their general president or receipt if they have any will fit the sense of the party who conveys 't is well and lucky otherwise the patches of their own prove dangerous And some ambiguities in clauses and expressions may happen which cannot easily be tryed by any law before nor can any Councellour very often assure himselfe he may give his opinion conjecturally and probably and that is all accidents alone the act of God may make things litigious which it is not in the power of the most wise to prevent The lawyer himself too may not stranges a a man make his mistakes something may slip from him imperfect which may trouble others to judge Suarez speakeâ— excellently of this For whereas says he such is humane condition that a man can scarcely explicate his sense in so perspicuous words but that often ambiguities happen especially in laws of men which are briefly and generally delivered therefore in applying them to various cases in particular many time doubts arise to take away which the Legislator either not in being or at hand to declare his intent The opinion of wise men and interpretation doctrinal is necessary out of which necessity comes the skill of the Civill Law weighty because in every Art the judgement of the skillful of that Art is of great moment and inducing at least probability that is all for if all were of one minde they would make a moral certainty in these things g l. 6. deleg c. 1. The Statute raising the Court for delays before-mentioned makes it plain there may be not onely difficulties but diversities of opinions in the Judges too h 14. E. 3. c. 5. there may be postnate cases which could not be foreseen in the laws where all remedies could not be comprehended nor are all things which follow in confimili casu The Statute of exemplifications begins For the avoiding of all such doubts questeons and ambiguities as have risen and been moved c. in and upon the 3 and 4 of Edward the 6. i 15 E. v. 32 H. 8 c. 26. The declarative Statutes are commonly made to take away doubts and incertainties before Nor is this any wonder that the Councellor should guesse at the case when in the extraordinaries in things strange and undiscovered the Judges themselves sometimes are divided Of the case of the Shellies and the Unckle the Nephew in Queen Elizabeth her time the Lord Cooke reports thus After the said case was openly and at large argued by the Councel of either party in the Queens Bench three days the Queen hearing of it for such was the rarenesse and difficulty so he of the case being of importance that it was generally known and out of her gracious disposition to prevent long tedious and chargeabl suits betwixt parties so neer of blood which would be
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
Henry the 4 the 5 and and 6. and Edward the 4. Peace was but like the short Sun shine of a winter day overcast as soon as seen nay the reigns of some foregoing Princes as of King Stephen John and Henry the third were almost a continual civil war sometimes known under the notion of the Barons wars Then as sayes the first Statute of Westm in the Preface The estate of the realm and of the Church was ill kept the Religious of the Land many ways grieved The people otherwise intreated then they ought to be the peace lesse kept the laws lesse used and malefactors lesse punished then they ought q West 1.3 E. 1. Then the great men would not be justified have and receive Justice in the Courts of Justice r Stat. Marl v. 1. Plenty dissolution and dispersion of Monasteries c. Informers concealers multitudes of Atturnies more then are limited by law are next made causes by him s 4 Inst 76 His reasons of decrease of suits follow and are these The Statutes of 35 Eliz 3. and 21 of king James c. 2. Have given full remedies concerning Monasteries the 21 of that king c. 4. concerning informations the 4 of Hen 4. c. 18. has made provisions concerning Attornies they are to be examined by the Justices their names to be put into the Roll the good vertuous and of good name to be received and sworn well and truly to serve in their offices and specially still as the Statute not to make suit in a forreign Country The others to be put out and if any be notoriously found in default of Record or otherwise he is to forswear the Court and never after to be received The Statute 21 of king James in the 3 chap. has provided against Monopolies and new projects in the 8. against abuses in procuring of Supersedeas of the peace and good behaviour the 23 chap. against vexations delays by removing Actions out of inferiour Courts The 16. chap. appoints a limitation of Actions gives them age and death it allows in the common Action of Trespasse Quare clausum fregit where it is by negligence or involuntary to plead tender of amends the 13 chap. prevents and reforms Jeofailes the 28 ch repeals many obsolete Statutes the third of King Charles more The Petition of Right being a confirmation after other Statutes of the same kinde provides for the rights and liberties of all men for the quiet of their estates and persons t 3 Car. enough to satisfie those who are not desperately resolved the more reason they see given to take off their dislike to dislike the more But it may be feared as it is more easie to hate then to shew a cause Non amo te volusi worse then beastly wilfullnesse sometimes must be allowed and the mean and contemptible malecontents are not more guilty of this immodesty then many of the better sort and who indeed may be learned in their own Studies or Professions and therefore will conceive themselves able to judge all others not considering how ridiculous it would be to heare an old Physician censure the order of the Imperial and Swedish battels a mâ—er plain Captaine the Aphorismes of Hyppocrates a Grammarian or Pedant condemned to noise by rule the Mesolabes of Arebimedes The most Reverend Judges of the Common Law have ever been the most carefull of all men where things were intermixed out of their learning of the Laws though not out of their knowledge sometimes to call into the decision the learned of those Arts or Sciences to which they belonged That every man is to be belieued in his own art is their maxime We pray in aide saies Justice Saunders when any thing falls out in our Law concerning other Sciences and faculties This is honourable saies he and commendable in our Law by this as he goes on it appeares we despise not I may say how ever able for some of this robe whom I could name many easily match those who by their own favourers are thought to have gone furthest in generall learning other sciences then our own but allow and commend them as things worthy of commendations u Plowd com 124. v. r. 7.19 Upon this reason was Huls a Batchelor of both the Lawes sent for by the Judges in the time of King Hen. 6. to heare his Legick as t is said upon the difference of precise and causative compulsion w 7 H. 6.11 Again where an appeale was pretended for which excommunication should not disable the Judges enquired of the learned in the Canon law concerning the vigour of the appeal x â—â— H. 6.25 They use to enquire of Surgeons concerning maihem y Com. 125. â—1 H. 7.33 as Gaws dries case They ever give faith and they ought to give faith to the sentence of the Ecclesiasticall Judges still there This is the common received opinion of our bookes z r. 5. 1. p. 7 and in another place Though it be against the reason of the common law a V. 4.29 Our predecessours as the Justices Brown and Stamford in things touching Grammer have used to consult with Grammarians and to pursue their rules b Plowd com 122 127. and the books there This love of our selves is the most dishonest of all others an Empire in sciences is not often heard of some studies may imploy a long age those who will be thought so sublime that they fill all places beyond the Sunne and Heavens way sometimes may be observed to fly weakly to flag an Eridanus or perhaps the earth receives them In Gellius Favorinus a Philosopher no overweener I think much esteemed by this relator high in name and opinion out of this curiosity quarrels with the Lawes of the twelve Tables with no great good luck as he was met with he shall be my example how easie it is for him who will be at all to miscarry somewhere He had read over he saies the twelve Tables which was something his exceptions may seem the more reasonable as eagerly as Platoes ten books of Lawes One would think he was pleased wel enough with Platoes laws which he read so very eagerly yet the Athenians and Polybius justly reprove them for vain lawes which no Nation of Greece could ever be perswaded to use c Athen. l. 12. c. 22. Polyb. l. 6. The Lawes of the Tables which dislike him were these This de injuria paenienda SI INJVRIAM FAXIT ALTERI VIGINTI QVINQVE ARIS POENAE SVNTO which at three farthings the assis it was no more he saies was triviall and would deter no man from doing injuries Some things in the Lawes he supposes inconsistent as in that of the Talio SI MEMBRVM RVPIT NI CVM EO PACIT TALIO ESTO The Talio or like for like was to be unlesse he that did the mischiefe satisfied him that suffered by him and redeemed it This Talio the Philosopher thought was impossible to be just the breaking by retaliation might be
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
second of Richard the second m 2 R. 2. c. 1 Wills that the great Charter and the good laws of the land be firmly holden The 3d. That the good laws and customes c. be bolden n 3 R. 2. c. 1 v. 5 R. 2. c. 1 7 R. 2. c. 2. 9 R. 2. c. 1. The 4. of Hen. the 7. And over that his Highnesse shall not let c. but that he shall see his laws to have plain and true execution and his subjects to live in surety of their lands bodies and goods according to his said laws c. o 4 H. 7.12 c. 9. The 32. of King Hen. the 8. saies The King calling to mind c. that there is nothing within this Realm that conserveth loving subjects in more quietness rest peace and concord then the due just ministration of his laws c. The first Parliament of King James has The fundamentall and ancient lawes which this King as there is said expressed many waies how far he was from altering or innovating whereby c The peoples security of lands livings and priviledges both in generall and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present confusion wil fall upon the whole State c. p 1 Jac. reg c. 2. Twice in Petition of Right is this expression and other the good Laws and Statutes once the laws custows once franchise of the land The conclusion is all which they humbly pray as their rights liberties according to the laws Statutes q 3 Car. Reg. If publike authority authority of Parliaments authority of the English Nation in all ages can make an authentike and valid testimony by that authority we see our Lawes are facred pious good mercifull and just their ends aym meerly at the peace and happinesse of the Nation the only ends which Lawes should aym at and these being had he must forfeit the Noble reason of man who desires a change which whensoever it shall happen by the judgement of a Parliament like the change of death must be fatal to the State Though here is already the weight I promised and such as all English men should allow I wil adde a testimony or two more of private men not of the profession yet no strangers in the Law as the most knowing Sir Henry Spelman Of all municipal lawes our law plain and without dresse as she is is the most noble Lady replete with all justice moderation and prudence c. As Sir Thomas Smith the people here are accustomed to live in such sort that the rich have no more advantage then the poor Dr. Cowel a most knowing Civilian very judicious in our laws sayes of the two Benches They decide all causes religiously according to the rescript of the Common law r Justit Angt. 24. sect 2. a most learned Knight of our age praises highly our forefathers for their vertue abroad and their exquisitenesse of counsel and judgement at home amongst whom as he in Livies expression The commands of the laws were ever more powerful then those of men and Iustice was administred with that sineerenesse and judgement you would believe it to have proceeded from Papinian himselfe of all men who are shall be or have been the most skilled in the laws Å¿ D. Rog. Twisden praefat ad Ll. Guil. 1. Hen. 1. Our laws are not written in any general tongue and so cannot easily be known by forreigners but by the effects long continuance here or acquaintance and seldome so strangers every where for the most part desiring to take notice of every thing else rather then of laws The French man who wrote the estates of the world discoursing of the charges practised in other provinces in his time sayes But the liberty of England is marveilous in this regard no Country any where being lesse charged t Les Esta c. p. sciâ—ur D. T. V. Y. v. Sir Rob. D alingt survâ—y of Tuscany The Lord of Argenton as much experienced as any man in his age or perhaps since who had seen Venice and the order of things there and praises it sufficiently yet speaks in his plain manner of England Now according to my judgement amongst all the Seigneuries of the world which I have had any knowledge of where the Commonwealth is best managed and where there is lesse violence used upon the people it is England u Liure 5. It was otherwise of France in the days of his Master Lewis the 11. In many places so grievous were the Taxes men women and children were forced to draw the plough by their necks and that by night for fear of the Collectors w P. Mat. Lon. 11. If we look upon the Peasants of France flead alive the Villano or Contadino of Italy either under the Spaniard or Venetian Where Fruit and Salades * Sir Rob. Dalingtons Survey of Tuscany nay and Asses dung all things whatsoever pay Tribute but mens sighs where one word gabelle is of the largest extent and more used then all the other in the Languages leave out the chains of the Turkish Gallies and the most sad thraldom of those Natives of America under the Spanish Conversion of the newest Fashion Baptized but as Bede says of the Protomartyr Albane in their own blood we shall finde nothing so miserable so unhappy in Nature Our Yeoman as Sir Tho Smith is a free Englishman a man well at ease and having honestly to live He savours says a Reverend Church man of our Nation of civility and good manners living in far greater reputation then the Yeoman in Italy France Spain Dr. Heyl. Geegr or Germany I may say for some of them more freely more plentifully then the Gentry of either Spain or Italy being able to entertain a stranger honestly dyet him plentifully and lodge him neatly We may read the words of a Parliament to this purpose after the discovery of the Powder-plot No Nation of the earth hath been blessed with greater benefits then this now enjoyeth x 3. Jac. and whatsoever benefits we have received we owe them all to the Laws they are derived to us thence we can attribute them to nothing else Honour given to the Professors of the Laws As Justice is the most excellent of all vertues seated in the Will as more sedate and nearer to the reason its object being the profit of others So it is with good cause preferred before Fortitude as Peace before War which ought to be ruled by a certain Justice and if all men were just there would be no need of Fortitude The ancient Chief Justice whatsoever may be talked of the Constable or others was the Great Officer of State and as he had more power so had he the precedency of all men else Odo Earl of Kent Chief Justice in the time of William the 1. is called Prince of the Palace by Ingulphus y
of it Many great Families have been advanced by the Law many of the best and noblest thought it no disparagement to professe it Some of our illustrious names may be met with amongst the Serjeants and Apprentices of our yeere books as well as in the Heralds books If like Boccace his Ghost all those who laid the foundations of their houses who first broke through the miste of time wherein they and their ancestors were hid before who first shewed their names to the world were to appeare before us in the habit of their sprouting up with all their sordid cheats with all the crafts several close arts of thriveing used by some displayed and revealed all the false sleights of the Town and Country laid open where every peny is got oftentimes too too dishonestly by the unworthiest sins a man can commit how would the gawdy off-spring curse his own rise the branch be ashamed of its own root vertue alone is honourable mony can neither make men wise valiant nor good Arts and Armes onely and really innoble that of all others most deservedly whose object is meerly the good of mankind which imployes men continually for the publique for the preservation of the people pacique imponere morem The souldier as Cicero may once profit his Country the Lawyer always Our most Reverend Judges and professors of the Laws have in all ages * Anciently part of the Persian kings title The ophyl risen with the Sun and given eyes to the blinde night But I have offered my selfe too far to ingrateful dangers Here I will stop and give over Not that much is not left out which might have been said of the sacred Law of the Land and the administration of Justice here Much is left out and I wish some more happy and more able would undertake the whole It is enough which again I may protest that I speak not in the midst of Fetters and that I have defended and the defence could not but be easie truth onely for its own sake yet I believe he who knows most who commands most in language and Sciences who pretends justly a title to the kingdome of the barre or schooles with all his mouths and tongues if he had more then one hundred could not do full right would be short and wanting here Not in our right hands as is said of those souldiers in Curtius but in our Laws our helpe our hope and liberty lie We need not aske for propriety not for peace not for order concord security not for wealth nor honours one wish comprehends them all carries all these with it the safety of the laws is all these propria haec sidona We have seen at large what excellent blessings we have received from the Law these blessings may be everlasting if that be made so I know nothing it ought to yield to and our Parliaments have thought so but eternity and the change by that FINIS The Table A. AIde to Knight the eldest son c. 127 Alodium alodiaries 129 130 c. Aelfred the King not the founder of the Saxon policy 85 86 Aequity and judging according to equity how to be understood 31 32 Aescuage 127 149 Aldermen amongst the Saxons 98 B. Barons Norman and English ever lovers of the Laws 107 280 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Bocland 140 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Britannie and the Britains under the Romans 71 72 73. The Civil Law the first Law heard of them amongst them 73 74 governed by Kings 72 C. Casars Commentaries l. 6. concerning the Gaules and their wives 75 L. Chancellours Oath 65 Chiefe Justice the greatest subject 159 288 289 Church highly favoured by Lawes 273 274 Circuits of the Iudges 163 Civilians what opinion they have of the Pandects c. 226 Clergy men heretofore Lawyers 292 Cnut the king composed the law called the law of St. Edward 88 Counsellours 175 Courts of Iustice are of Saxon original 94 95 96 Courts since 159 160 c. Courts standing and ever open 165 166 Customes unwritten why 89 D. Delayes odious in the law 169 170 c. De rerum venditione that constitution set forth at Yorke 74 Drenches 143 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Duilian baâ—k 218 E. Earles amongst the Saxons 98 Edilinges 140 Edward the third first changed the Welsh lawes 76 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 200 Eleutherius his Epistle to Llever Maur a forged piece 73 F. Faulehen what 124 Feudes 121 Firdfare 149 Foleland 129.152 Forstale 134 Frankalmoigne 127 Frankleudes 129 130 The French Policie and ours much alike 126 Fyheren 124 Frilinges 126 Fundi limitrophi 119 G. Gavelkinde in Germany 125 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Germanes and their institutions have overâ—â—owen all Europe 78 79 80 Their lawes called salic more antient then Justinian 81 Glebal gold 120 Adscriptitius ibid. Grithbrece 134 H. Henry the eight imposed wholely the English lawes upon the Welsh 77 Heinfare 145 Hereban 150 Herefare 127 143 Hereot 127 14 High Court of Iustice 97 159 Hotoman his censure of Littleton 240 I. Infangennethiefe 134 Iudges not to decide causes according to discretion how to be intended 32 33 Their authority 199 c. Assistants to Kings and Parliaments there heretofore Barons 290 Honoured 292 293 Iuries tryals by them not brought in by the Conquerour 92 93 Iustice to obey laws 33 K. Kings of Macedon ruled by law 24 Of Mexico might not be touched 45 Kings of England their Oath 111 Might free men from the Firdfare Burgbote c. 151 Kisses given to Princes 118 L. Laudamentum 124 Laws the enemies of them 1 2 Necessity of them 18 35 Law what it is 34 35 Force is not law 23 24 25 Nor the arbitrary will of man 27 28 Why laws were written 30 31 How antient 35 Law of the land in Magna Charta is not waging law 50 51 Common Law 75 excells and may controle Statute laws ibid. Custome and expirience begot it 60 61 It is known and to be found in books 60 65 66 67 Its antiquity not Norman c. 64 c Laws of Hoel Dha and the Welsh 76 77 Salie Laws 86 81 82 The Saxon laws 84 the several kinds 88 Our fundamental laws Saxon 90 91 known by the name of St. Edwards laws 100 101 102 104 setled in the great Chaster 108 110 then called Common Law Letters of the Ionians and Phaenicians heretofore neer the same 37 Loudes 131 Liberty what is 45 46 c. Littleton vindicated 240 241 Lombards their laws 84 M. Manners and priviledges belonging to them amongst the Saxons 133 Method of our law 243 N. Normans themselves ever zealous for the laws of St. Edward 135 107 108 They as some received their lawes from the Saxons 112 O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 120 Operae liberterum 119 P Papinian Judge at York 74 Papists ever enemies to the lawâ—s 67 Parkes 136 Plea of Pinneden under Will the 1. 104 Pleadings 209 Polydore Virgil 92 93 Propriety 2 3 R Rectories and glebe-land whence 151 Reliefe 127 131 147 S Salbuch in Germany 83 Saxons their policy and government 85 86 Sac. 134. The Saxons subverted all things 77 78 Saxon tongue 215 216 217 Sicyon never changed her lawes in 740. yeers 53 Slaves thrown to Lampries 252 Soc 134 Socage 129 Spaniards retain the German customs 128 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 120 Subverters of the laws 66 67 T Team 134 135 Tenures all Europe ever 118 Reasons of them 119 120 All lands held of the King 149 Terms of the law 213 c. Thanes Thenes 137 138 c. Tol 134 Tribonian censured by Perrinus 226 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 V Vassi dominici 125 Vicedominus 99 Villeins 153 154 Vtwara W William the 1. his entry not so violent as is thought by some 143 144 Writs whence they issue 162. See 207 c. anciently the Kings letters there No man to answer or be called in question without a Writ 209 FINIS