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
whether the robberie bee committed in the day time or in the night Co. lib. r fo 6. Ashpoles Case the Hundred shall not be liable but where the robberie or felonie is committed in the day time yet if diverse doe commit a robberie those of the Hundred ought to apprehend all the felons for though they apprehend some of them yet that will not suffice to excuse them unlesse they apprehend all of them by that Statute of 13. Edw. 1. But now it is qualified in that point by the Statute of 27. Eliz. cap. 13. By which if any of the Inhabitants of any towne village or hamlet next to the place where the robberie was done do in their pursuite apprehend any of the offenders that shall excuse them though all bee not taken The Statutes concerning the approvement of wastes woods c. and other Lawes derived from the Law of Alfred cited by M. Cambden FRom that Law of King Alfred the Statute of 13. Edw. 1. cap. 46. concerning approvements of Wastes Woods and Pastures may seeme to borrow its light whereby it is provided that if any having right to approve do levie a Dike or an Hedge and some by night or at any other season when they suppose not to be espied doe overthrow the Hedge or Dike and men of the townes neere will not indict such as be guiltie of the fact The townes neere adjoyning shall bee distrained to levie the Dike or Hedge at their owne costs and to yeeld dammages At the Common Law if one be slaine in any towne in the day time so long as it is plaine day light and the man-killer doth escape the town where the Felonie was committed shall bee amerced for it Dum quis felonicè occisus fuit per diem nisi felo captus fuit tota villata illa oneretur This I thought pertinent to my present discourse to parallell that ancient Law of Omnes ex centuria decima Regis mulctam incurrerent with our latter Lawes whereby towneships are onerable upon the escape or not apprehending of offenders in certaine cases Besides that good and profitable Law amongst many others that gracious Prince did further decree that the Decurio or Tything man might judge of small matters and the Centurio or Constable of greater matters and at the fiequent meetings in every Satrapie or Shire now called Countie Courts the Senator or Greve was to heare and determine matters of greatest difficultie and moment King Edward sen succeeded who made a law De diebus cogendi populi Edw. sen An. 900 Lamb. fo 51. that every Greve Praepositus quisque should every moneth call the people together doe every man right and decide all controversies which confirmed the use of the Countie Court King Edgar made a law De Comitiis Centuriae Comitiis quilibet interesto That is to say Edgar Anno 599. let every man be present at the Leets or meetings of Hundreds but out of every shire let there be a more famous meeting twice a yeare Celeberrimus autem bis quotannis Conventus agitor and this is now the Sheriffes turne This King did farther decree Lamb. fo 80. that each person should finde pledges who might bring him forth to render every man his owne Quisque fidejussores qui eum jus suum cuique tribuere quam paratissimum praestent adhibeto The manner of proceeding by Juries in those subordinate Courts of Counties Hundreds c. NOw the manner of proceeding at that time in those meetings called Centuriae Comitiis Satrapiae Comitiis now called Court Leets and Sheriffes turnes doth appeare by a Law practised in those dayes and after revived by King Etheldred who lived Anno 979. which thus insueth In singulis Centuriis Comitia Sunto at que liberae conditionis viri duodeni aetate superiores Lamb. Expâ—â— verbo unâ cum Praeposito sacra tenentes juranto se non innocentem damnaturos sontémve absoluturos Let there be meetings in every Hundred and let twelve freemen of the better sort together with the chiefe pledge sweare upon the holy Evangelist not to condemn the innocent nor to acquit the nocent that is to doe every man right I will passe over many good lawes before the Conquest let us cast our eyes a little neerer and see how the Counsell of Iethro to Moses hath beene since pursued Bracton a learned and famous Common Lawyer who wrote in the time of Hen. 3. from the Conquest writes of the practice and duties of Kings Rex non alius debet judicare c. Bract. l. 2. cap. 2. The King and none else ought to judge if he alone be able to doe it sithence he is bound thereto by vertue of his oath and there fore the King ought to exercise the power of law as Gods Vicegerent and minister on earth Sin autem Dominus Rex ad singulas causas determinandas non sufficiat c. But if the King be not able to determine all causes that his labour may be the easier in plures personas partito onere eligere debet de regno suo viros sapientes timentes Deum in quibus sit veritas eloquiorum qui oderunt avaritiam quae inducit cupiditatem Et ex illis constituere justiciarios vicecomites alios ministros ballivos suos ad quos referantur tam quaestiones super dubâ—is quam querimoniae super injuriis c. He ought to choose out of his Kingdome wise men fearing God and hating coverousnesse and out of them to appoint Justices Sheriffes and other Ministers to decide questions of doubt and to redresse injuries c. All subordinate Justice derived from the King and Crowne IN a cause of Replevin upon a distresse for an Amerciament in a Leet 12 Hen â— 18 Fineux then chiefe Justice in his grave and learned argument affirmes That at the first the administration of justice was in one hand and in the Crowne and then afterwards by reason of the multitude of people the administration of justice was divided into Counties and the power was committed to a depatie in every Countie that is to say a Sheriffe who was Bayliffe and Deputie to the King and was assigned for conservation of the peace and to punish offenders and to defend the Realme upon invasion of enemies to bee attendant upon the King in times of warre and to cause all his people within his Countie to goe with him for defence of his land and for the better governement of the Countie and correction of offenders There were two Courts assigned to him viz. the Countie Court held every moneth and the Sheriffes turne held twice every yeare by which two Courts the whole Countie was governed the Countie Court was for one man to have remedie against another for any thing betweene them under 40. shillings And the Sheriffes turne unto which every man within the Countie of a certain age should come and were compelled to come that
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
De â—odoâ—reddendi according to the true meaning of this ancient oath of Legeance is the difficult question S. Pet. 1.6 2. v. 13. giveth this monition Submit your selves to every ordinance of man for the Lords sake whether is be to the King as supreme vers 14. or unto governours as unto them that are sent by him c. Though by the rule of S. Paul the substance of every princes power is the ordinance of God yet the specification of the circumstances thereto belonging as in regard of places persons Jurisdiction subordination and the rest is an humane ordinance introduced by custome or positive law Hence I will deduce this generall position That all subjects are bound by dutie and legeance to their princes to render to them civill obedience and their dues and duties according to the laws and customes of that kingdome wherein they live then by consequence the subjects of great Britain to their gracious Soveraign according to the Lawes and customes of our Nation To capitulate here all the casuall dues and duties annexed to his prerogative as forfeitures escheates confiscations or such like or wardships mariages primer seisin and many more at large recited and declared by the statute intituled Prarogativa Regis published in the 17 yeare of Ed. 2. Or to make particular rehersall of other ordinary dues as customes aide and such like were cleerly out of the scope of my intention But faithfully to deliver by what ways and means the king may require any extraordinarie aid and supply out of each subjects particular estate or terrene honour hic labor hoc opus est Some not well affected to the constant government of this kingdome The payments of dues and duties most proper by Parliamentary gift would have the kings necessities supplyed by impositions and taxes to bee raised and levied by the kings meer and absolute power without any commitiall consent of peeres and commons others more orthodox if I may so terme it to the happinesse of his Majestie and tranquillitie of the State doe hold and so it hath been declared by ancient modern parliaments that a parliamentarie gift subsidie or supply bee it of what name soever from the subject to the King is most proper and competible with the ancient rule and government of our kingdome The very name of parliament is sacrum quoddam and the nature of it most sublime and so long as the members are in unitie with the head most absolute and illimited The kingdome of England is a most ancient Monarchie under the rule and government of a Supreme Leige Soveraign conform and according to the peculiar lawes and customes of the nation confirmed by severall Parliaments and whereas all other nations as Bracton faith Lib. 1. Cap. 1. were governed by written lawes Sola Anglia usa est in suis finibus jure non scripto consuetudine in en quidem ex non seripto jus venit quod usus comprobavit Sed absurdum non erit leges Anglicanas licet non scriptas leges appellare cum legis vigorem habeat quicquid de consilio consensu magnatum reipublicae communi sponsione authoritate Regis sive principis praecadente juctè fuerit definitum approbatum England only is ruled by a law not written and by custom which by usage hath beene approved and it were absurd because not written not to call them lawes inasmuch as whatsoever by the counsell and consent of the Peers and commons and by the kings royall authoritie shall bee determined and allowed hath the power and vertue of a law Herein we may observe an authentike description of a parliament I cannot passe by the word Quicquid there is some remarkable energie in the generalitie of it that must not goe without a Quisquid Some would have religion and Ecclesiastike persons and do not stick to murmur loudly of it exempt from all parliament power All persons causes subject to Parliament but our Author who wrote in the later time of Hen. 2. well nigh 380 years agone not long after King Iohn had coactedly delivered over his royall Crowne into the hands of the Popes Legat and thereby admitted papall incroachments of jurisdiction in this kingdome although with the common errors of those times he seemed to advance pontisiciall power in Ecclesiasticall causes here cui scil Papae alioqui invictissimi etiam Imperatores Reges cesserunt as it is said in the prologue to Bracton yet he brings all jurisdictions and matters whatsoever with his Quicquid within the cognizance and power of parliament A parliament is the supremest Court of Justice in this kingdome Parliament the supremest court of justice an assembly of the King the Lords and peeres and the Commons of the Realme The word Parliament is a French word and signifies originally as much as colloquium a conference or treatie betweene the King and his Subjects Iâ—â—is great Court the kings of England have ever had authoritatem praecedentem as Bracton notes before aswell in regard of their naturall persons having supremacy and preeminent precedencie over and above all persons as of their politike capacitie and have the sole and only power to call and convene parliaments and to do all other kingly offices And they had and ever have potectatem subsequentem a power to ratifie and confirme such acts and lawes and Statutes whatsoever as are treated and agreed upon by the peeres and commons The king as learned Cambden observes and hath it from Bracton supremam potestatem merum imperium apud nos habet nec in imperii clientela est nec in vestituram ab alio quovis accipit nee prater Deum superiorem agnoscit In short the king is supreme over and above all persons and owneth no superiour but God The parliament is called by writs of summons directed to each peere of the land The calling of the parliament and by writs of summons directed to the Sheriffes of each severall countie And it is called by the advice and consent of the kings councell but note the king of England is armed with divers Councels One which is necessarieto be explained called Commune Concilium in all writs and proceedings and that is the high Court of parliament A second which is grande or magnum concilium which is sometime applyed to the upper house of parliament sometimes out of parliament to the peeres of the realme Lords of parliament Thirdly he hath his legale concilium his judges of the law for law matters The Fourth and last and not the least is the kings privatum concilium his privie Councellors of State The king hath as all the kings of England ever had his sacros and secretos consiliarios his sacred guard of privie Councellors Majorum et sapientissimorum è regno Amongst whom he fitteth in person and moderates their consultations in imitation of the precepts and presidents recorded in holy Scripture Where no counsell is the people fall but
in the multitude of counsellors there is safetic Prov. 11.14 Every purpose is established by counsell and with good advice make warre Prov. 30.18 Moses had Iethro and Aaron Ioshua the sonne of Nun his successor Caleb and Eleazar the high priest for his privie counsellors David had his succession of counsellors Samuell the prophet Ionathan whose love to him was wonderfull Abiathar the priest and Nathan also a prophet with many others To return to our owne nation king Ine had his Cinredus whom hee calls his father Hedda and Erkenwald his bishops with many others Alfred had his Plegmund Archbishop of Canterbury Werefridus Bishop of Worcester and others Athelstane edicted his lawes Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum consilio by the counsell of his Archb. and other Bishops and so successively the kings of England ever had as before their privie counsell such and so many as the prince shall think good who doe consult daily or when neede is of the weighty matters of the Realme to give therein to their prince the best advice they can The prince doth participate to them all or so many of them as he shall thinke fit such legations and messages as come from forraigne princes such letters or occurrents as be sent to himselfe or his secretaries every Counsellor hath a particular oath of faith and secrecy administred to him before hee bee admitted a privie counsellor To shew the extraordinary regard and royall use of the kings counsell The regard â— the Privie counsell Let us looke backe upon the case of 5. Hen. 4. upon an agreement for an exchange had for the Castle of Barwick between the king and the Earl of Northumberland wherein the king promised to deliver the Earle lands and tenements to the value of that Castle by these words per avise assent des estates de son Realme son Parliament c. By the advice and assent of the estates of his Realm So as the Parliament be before the feast of S. Luke or otherwise by the assent of his great Counsell and other estates of his Realme whom the king shall assemble before the said Feast in case there be no parliament before c. as by the instrument thereof dated at Lichfield 27. Aug. 5. Hen. 4. remaining in the Tower may appeare To this counsell the Oracles of the Common law the grave and reverend Judges Leges loquentes Reipublicae God grant in all Successions they may be so have had their resort from time to time in all ages for advice and directions in their proceedings aswell in criminall causes as in matters of right and propertie as it was observed by the learned Lord Chancellor I will touch but two which are cited by that honourable Judge in cases of propertie Thomas Vghtred Knight brought a Forme-don against a poore man and his wife They came and yeelded to the demandant which seemed suspicious to the Court the matter being examined judgement was stayed because it was suspicious And Thorp said that in like case of Giles Blacket it was spoken of in Parliament And faith he wee were commanded that when any like case should come we should not goe to judgement without good advice wherefore sue to the councell and as they will have â—s to doe we will and otherwise not in this case 2. Greene and Thorpe were sent by the Judges to the Kings Councell where there were twentie foure Bishops and Earls to demand their advice touching the amendment of a writ upon the Statute of 14. Ed. 3. cap. 6. which was an Act made for amending of Records defective by misprision of Clerks By the advice and assent of this Councell is that great and common Councel solemnly called The forme of the writ of Summons to the Sheriffe followeth in these words Rex viz. S. c. Quia sie avisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos Statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud Civitatem nostram W. c. teneri ordinavimus Et ibidem cum praelatis Magnatibus et Proceribus dicti Regni nostri colloquium habere et tractare Tibi c. wherein these things are worthy observation 1 That this great Court is assembled by the power of the King expressed in his writ under his great Seale with Teste meipso 2 This power is extended with the advice and assent of his Right Honourable privie councell His grace favour and providence by calling a Parliament to parlee and treat with his Lords spirituall and temporall as also with his commons who by their Knights Citizens and Burgesses as their respective proxies elected by and with the popular suffrage of the Freemen of every Countie Citie Towne or Borough do make up the body of that great court and doe there meet to yeeld and consent unto such matters as shall be there treated and established 4 The subject of a treatie or parliament That is certaine difficult and urgent occasions concerning his Majestie his royall state and the defence of his kingdome and Church This high court consisteth of two honses The higher or upper where the King and his Barony or Nobilitie spirituall and temporal do take their place And the lower house where the Knights Citizens and Burgesses are assembled for the Commons consisting when M. Crompton wrote his jurisdiction of Courts of 439. persons The King had the only power to appoint it his gracious favour is to give life and beginning to it by his owne personall accesse in most Royall state And as sinis coronal opus hee crowneth and perfecteth all the Acts of this great assembly with his Royall assent without which no bill can passe nor law be made Though there bee no written Acts of parliament extant before the raigne of Henry the third yet some have sollicitously laboured to draw the Antiquitie of this thrice excellent court of Parliament from King Arthurs time to king Ine Offa Ethelred Alfred and others before the Conquer our with a successorie continuance untill this Present age and collected and inferred that the words used by K. Inas in the proem of his laws exhortatione c. Omnium Aldermannorum mcor'um seniorum sapientum Regni mei And the like words of Offa and other kings in the time of the heptarchie and that the words of Conventus sapientum used by King Edward the sonne of Alfred the words of Conventus omnium Nobilinm sapientum used by King Athelftane cum consilio sapientum used by king Edgar Haec instituerunt Rex sapientes mentioned of King Ethelred and the like of other Kings should include the Lords and Commons of the parliament whether this most eminent Court were in those ancient dayes assembled and exercized in that manner as now it is dubium est dubitare liceat doubtfullnesse is a fluctuation of the minde which in historicall matters of indifferencie that concerne
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
question Have you not read that David being hungry entred into the House of God and did eate the shew-bread which was not lawfull for him nor any with him but only the Priests Or have you not read in the Law how on the Sabbath day the Priests in the Temple breake the Sabbath Sabbatum violant sine crimine sunt and are blamelesso And then he doth absolutely convict them of ignorance If yee knew what this is I will have mercy and not sacrifice yee would not have condemned the innocents Matth. 12. ver 1. Vsque 8. If the Law of God by the mouth and judgment of his blessed Sonne was dispensable No man can deny but humane lawes which are transitory may admit a qualification Or else our Gratious Salomon cannot according to the third branch of his oath doe equity and right Iustice with discretion and mercy Observe the rule of the Common Law in this point Dispensatio mali prohibiti est de jure Domine Regi concessa propter impossibilitatem praevidendi de omnibus particularibus Et dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata Co. 11.88 No greater argument of supreme and uncontrollable Majesty than a dispensatory power for when the Common Councell of the Kingdome have enacted penall Lawes for prohibiting somethings to bee done which are evill per accidens The KING by his owne Princely power alone may either in regard of persons or times or other necessarie conting encies dispence therewith PROTECTION as it is grande opus so it hath grave onus a great Balke a lâ—rgel arthen The oâ—-stretched and puissant Aimes of this Protâ—ction 1. By Lawes 2. By Armes Are not supported and maintained without inexpressibie charge In the first S. Lawes observe in the maintenance and execution thereof the â—â—â—ries and wages of the great and reverend Iudges the fees stipends and allowances of other Ministers and Officers of Iustice his Majesties extraordinary great experce in sending abroad and dispersing his Edicts and Proclamations in all the quarters and corners of the kingdome In the second S. Armes observe no lesse if not sarre more in the reparations and constant maintenance and supply of His Royall Navie of His Ordinance Artilerie and all other munition And his assiduous preparation in the time of Perce against the occasion or expectation of Warres And all must be according to the Prayers of our own Church to maintaine the People in wealth peace and godlinesse But that wee may returne with the greater thankfulnesse to GOD Let us look back and there are not many quarters of yeares since this great worke of Protection was invaded the union of two Ancient Kingdomes disturbed The Subject with jealousies distracted the former Valour of our English hearts blounted and amated our Liberties in a desperate jeopardy of bondage And which is worst Quis talia fando Myrmidonum Dolopumve aut duri miles Vlyssis Virg 〈◊〉 l. 3. Temperet a lachrimis What flinty heart can forbeare from teares A sweet mild mercifull KING in his studious vigilancy for quenching of these flames most sensibly perplexed and indeed brought into a great strait that hee had just cause to invocate the Mercy Seate of Heaven in the language of the Kingly Prophet Angustia est mihi valde I am in a great strait 2 Sam. 24. v. 14. He was so indeed and like Ionathan and his Armour-bearer between two sharp rocks Bozez and Sench the fore-front of the one was situate North-ward the other South-ward 1 Sam. 14. v. 45. What was the cause of all these miserable tumults and turmoyles Truly our blessed Soveraigne unhappily fell upon those times wherein David complains of the Iudges Magistrates and Ministers under his subjection Psal 82. v. 1. c. God standeth in the congregation of Princes He is a Iudge amongst Gods ver 2. How long will yee give wrong judgment and accept the persons of the ungedly David by mentioning Gods pretence in the aomen ill ration of judgments endeavouring to 〈◊〉 be a tenor in their hearts adds that sharp increpaâ—â—â—n v. 2. â—sque quo judic at is iniquitâ—em c. â—o give 〈◊〉 judgment is in pronouncing of Law not to observe an equality or rule prescribed by the lawes but to give sentence pro arbitrio suo after their own will fancy and passion for no other cause but so they would have it whence that vox tyrannica that proverb sprung up Sic volo sic jubeo stat pro ratione voluntas Our will is our reason and our will â—hall command After this severe objurgation the Prophet declareth the true use and end of upright judgement Defend the poore and fatherlesse See that such as be in need and necessity have right v. 3. Deliver the outcast and pcore save them from the hand of the ungodly v. 4. And then despairing of their reformation he doth amplifie his reprehen sions against them They will not bee learned nor understand but walk on still in darknesse All the foundations of the earth are out of course ver 5. It was so in Davids kingdome and no lesse in King Charles His Great Britaine David invocated God for redresse Exurge Deus judica terram Arise O Lord and judge thou the earth v. 8. And so did King Charles God heard the prayers and humble supplications both of King and People For in ictu oculi when all conditions of this State in the out ward survey of humane judgment were most desperate and deplorable Moventur omnia fundamenta terrae Psalme 74.22 God did arise and plead or maintaine his owne cause Our gratious Iosuah by the dictates of the holy Spirit did summon his Elders called his Common-Councill or Great Congregation together â—ove 1640. to treat of the difficult and urgent affaires concerning his Majesty the State and defence of his Kingdome and the Church of England The like in his Realmes of Scotland and Ireland They have all happily and religiously met in their severall orbes the Civill and unnaturall breaches of the two disjoynted kingdomes are unanimously pacified and both more firmely reunited than ever before The issues and fruits of the Counsels and consultations of our Parliament have far sarpassed the presidents of all former ages Let the Acts Ordinances and proceedings themselves be Iudges And pray we incessantly to the throne of Heaven that God will be still present and president in the maturating of all their debates and deliberations concerning Church and State And in al such times when King Church and people are in a strait That God would arise exurgat Deus dissipentur inimici Amen Amen Amen FINIS
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