that they might doe it All which he promiseth in the commons names that they shall not abuse but haue such regarde as most faithfull true and louing subiectes ought to haue to their prince The Chauncelor answereth in the princes name as apperteyneth And this is all that is doone for one day sometime two Besides the Chauncelor there is one in the vpper house who is called Clarke of the Parliament who readeth the bils For all that commeth in consultation either in the vpper house or in the neather house is put in writing first in paper which being once read he that will riseth vp and speaketh with it or against it and so one after another so long as they shall thinke good That doone they goe to an other and so another bill After it hath bin once or twise read and doth appeare that it is somewhat like as reasonable with such amendment in wordes and peraduenture some sentēces as by disputatiō seemeth to be amended In the vpper house the Chauncelor asketh if they will haue it engrossed that is to say put into parchment which doone and read the third time and that eftsoones if any be disposed to obiect disputed againe amōg them the Chauncelor asketh if they will goe to the question and if they agree to goe to the question then he sayth here is such a lawe or act concerning such a matter which hath béene thrise read here in this house are ye content that it be enacted or no If the not contentes be moe then the bill is dashed that is to say the lawe is annihilated and goeth no further If the contentes be the more then the Clarke writeth vnderneath Soit baille aux commons And so when they see time they send such bils as they haue approued by two or three of those which doe sit on the woolsacks to the commons who asking licence and comming into the house with due reuerence sayth to the speaker Master speaker my Lordes of the vpper house haue passed among them and thinke good that there should be enacted by Parliament such an act and such an act and so readeth the titles of that act or actes They pray you to consider of them and shew them your aduise which doone they goe their way They being gone and the doore againe shut the speaker rehearseth to the house what they sayde And if they be not busie disputing at that time in an other bill he asketh them streightwaie if they will haue that bill or if there be mo one of them In like maner in the lower house the speaker sitting in a seate or chaire for that purpose somewhat higher that he may see and be seene of them all hath before him in a lower seate his Clarke who readeth such bils as he first propounded in the lower house or be sent down from the Lords For in that point ech house hath equal authoritie to propounde what they thinke meete either for thabrogating of some law made before or for making of a newe All bils be thrise in three diuerse dayes read and disputed vpon before they come to the question In the disputing is a meruelous good order vsed in the lower house He that standeth vppe beareheadded is vnderstranded that he will speake to the bill If moe stande vppe who that first is iudged to arise is first harde though the one do prayle the law the other diswade it yet there is no altercation For euerie man speaketh as to the speaker not as one to an other for that is against the order of the house It is also taken against the order to name him whom ye doe confute but by circumlocution as he that speaketh with the bill or he that spake against the bill and gaue this and this reason And so with perpetuall Oration not with altercation he goeth through till he do make an end He that once hath spoken in a bill though he be confuted straight that day may not replie no though he would chaunge his opinion So that to one bill in one day one may not in that house speake twise for else one or two with altercation woulde spende all the time The next day he may but then also but once No reuiling or nipping wordes must be vsed For then all the house will crie it is against the order and if any speake vnreuerently or seditiouslie against the Prince or the priuie counsell I haue séene them not onely interrupted but it hath béene moued after to the house and they haue sent them to the tower So that in such a multitude and in such diuersitie of mindes and opinions there is the greatest modestie and temperance of spéech that can be vsed Neuerthelesse with much doulce and gentle termes they make their reasons as violent and as vehement the one against the other as they may ordinarily except it bee for vrgent causes hasting of time At the afternoone they kéepe no parliament The speaker hath no voice in the house nor they will not suffer him to speake in any bill to moue or diswade it But when any bill is read the speakers office is as brieflie and as plainely as he may to declare the effect thereof to the house If the commons doe assent to such billes as be sent to them first agréed vpon from the Lords thus subscribed Les commons out assentus so if the Lordes doe agrée to such billes as be first agréed vppon by the Commons they sende them downe to the speaker thus subscribed Les Seigneurs out assentus If they cannot agrée the two houses for euerie bill from whence soeuer it doth come is thrise reade in each of the houses if it be vnderstoode that there is any sticking sometimes the Lordes to the Commons somtime the Commons to the Lords doe require that a certaine of each house may méete together and so ech part to be enformed of others meaning and this is alwaies graunted After which méeting for the most part not alwaies either parte agrées to others billes In the vpper house they giue their assent dissent ech man seuerallie by himselfe first for himselfe and then for so manie as he hath proxie Whē y e Chaunceler hath demanded of them whether they will goe to the question after the bill hath béene thrise reade they saying only content or not content without further reasoning or replying and as the more number doeth agrée so it is agréed on or dashed In the neather house none of them that is elected either Knight or Burges can giue his voice to an other nor his consent nor dissent by proxie The more parts of them that be present onely maketh the consent or dissent After the bill hath béene twise reade and then engrossed and eftsoones reade and disputed on ynough as is thought the speaker asketh if they will goe to the question And if they agrée be holdeth the bill vp in his hande and sayeth as many as will haue this bill goe forwarde which is
a certaine proportiō betwéene the scarcity and plentie of other thinges with gold and siluer as I haue declared more at large in my booke of monie For all other measures and weightes aswell of drie thinges as of wet they haue accustomed to be established or altered by the Parliament and not by the princes proclamation only The prince vseth also to dispence with lawes made whereas equitie requireth a moderation to be had and with paynes for transgression of lawes where the payne of the lawe is applyed onely to the prince But where the forfaite as in popular actions it chaunceth many times is part to the prince the other part to the declarator detector or informer there the prince doth dispence for his owne part onely Where the criminall action is intended by inquisition that maner is called with vs at the princes suite the prince giueeth absolution or pardon yet with a clause modo stet rectus in curia that is to say that no man obiect against the offendor Whereby notwithstanding that he hath the princes pardon if the person offended will take vppon him the accusation which in our language is called the appeale in cases where it lieth the princes pardon doth not serue the offendor The prince giueth all the chiefe and highest offices or magistracies of the realme be it of iudgement or dignitie temporall or spirituall and hath the tenthes and first fruites of all Ecclesiasticall promotions except in the Uniuersities and certaine Colledges which be exempt All writtes executions and commaundementes be done in the princes name We doe say in England the life and member of the kinges subiectes are the kinges onely that is to say no man hath hault nor moyenne iustice but the king nor can hold plea thereof And therefore all those pleas which touche the life or the mutilation of man be called pleas of the crowne nor can be dooke in the name of any inferior person than he or shée that holdeth the crowne of Englande And likewise no man can giue pardon thereof but the prince onely Although in times past there were certaine countie Palatines as Chester Durham Clie which were hault iusticers and writtes went in their name and also some Lorde marchers of Wales which claymed like priuiledge All these are now worne away The supreme iustice is done in the kinges name and by his authoritie onely The Prince hath the wardshippe and first mariage of all those that hold landes of him in chiefe And also the gouernement of all fooles natural or such as be made by aduenture of sicknes and so continue if they be landed This being once graunted by act of Parliament although some inconuenience hath béene thought to grow thereof sith that time it hath béene thought verie vnreasonable yet once annexed to the crowne who ought to go about to take the clubbe out of Hercules hand And being gouerned iustly rightly I see not so much inconuenience in it as some men would make of it diuerse other rights and preeminences the prince hath which be called prerogatiues royalles or the prerogatiue of the king which be declared particularly in the bookes of the common lawes of England To be short the prince is the life the head and the authoritie of all thinges that be doone in the realme of England And to no prince is doone more honor and reuerence than to the King and Queene of Englande no man speaketh to the prince nor serueth at the table but in adoration and kneeling all persons of the realme be bareheaded before him insomuch that in the chamber of presence where the cloath of estate is set no man dare walke yea though the prince be not there no man dare tarrie there but bareheadded This is vnderstood of the subiectes of the realme For all strangers be suffered there and in all places to vse the manner of their countrie such is the ciuilitie of our nation The chiefe pointes wherein one common wealth doth differ from an other CHAP. 4. NOw that we haue spoken of the parliament which is the whole vniuersall and generall consent and authoritie aswell of the prince as of the nobilitie and commons that is to say of the whole head and bodie of the realme of England and also of the prince which is the head life and gouernor of this common wealth there remaineth to shewe how this head doth distribute his authoritie and power to the rest of the members for the gouernment of this realme and the commō wealth of the politique bodie of England And whereas as all common wealthes and gouernmentes be most occupyed and be most diuerse in the fashion of fiue thinges in making of lawes and ordinaunces for their owne gouerment in making of battel peace of truce with forraine nations in prouiding of mony for the maintenance of themselues within thēselues defence of themselues against their enemies in choosing and election of the chiefe officers and magistrates and fiftly in the administration of iustice The first and thirde we haue shewed is doone by the prince in parliament The seconde and fourth by the prince himselfe The fift remaineth to be declared Of the three maners and formes of trialles or iudgementes in England CHAP. 5. By order and vsage of Englande there is three wayes and maners whereby absolute and definite iudgement is giuen by parliament which is the highest and most absolute by battle and by the great assise Triall or iudgement by parliament CHAP. 6. THe matter of giuing iudgement by parliament betweene priuate and priuate man or betweene the prince and any priuate man be it in matters criminall or ciuill for land or for heritage doth not differ frō thorder which I haue prescribed but it proceedeth by bill thrise read in ech house and assented to as I haue saide before and at the last day confirmed and allowed by the prince Howbeit such bils be seeldome receaued because that great counsell being enough occupyed with the publique affaires of the realme will not gladly intermedle it selfe with priuate quarels questions Triall of iudgement by battle CHAP. 7. THis is at this present not much vsed partly because of long time the Pope and the cleargie to whom in times past we were much subiect alwayes cryed against it as a thing damnable and vnlawful and partly because in all common wealthes as to the tongue so to the maners fashions habites yea and kindes of trials and iudgmentes and to all other thinges that is therein vsed time and space of yeares bringeth a chaunge But I could not yet learne that it was euer abrogated So that it remaineth in force whensoeuer it be demanded The maner of it is described in Briton The triall by affise or xij men first of the three partes which be necessary in iudgement CHAP. 8. THe two first iugdementes be absolute supreme and without appeale and so is also the iudgement by the great affise And because our manner of iudgementes in England is in
necessarie so in time of peace the same is verie daungerous aswell to him that doth vse it and much more to the people vpon whom it is vsed whereof the cause is the frailtie of mans nature which as Plato saith cannot abide or beare long that absolute and vncontrowled authoritie without swelling into too much pride and insolencie And therefore the Romances did wisely who woulde not suffer any man to keepe the Dictatorship aboue fire monethes because the Dictators for that time had this absolute power which some Greekes named a lawfull tyrannie for a time As I remember Aristotle who of all writers hath most absolutely methodically treated of the diuision and natures of common wealthes maketh this sort of gouernmēt to be one kind of kings But all commeth to one effect for at the first all kinges ruled absolutely as they who were either the heades most ancient of their families deriued out of their own bodies as Adam Noa Abraham Iacob Esau reigning absolutely ouer their owne children and bondmen as reason was or else in the rude world amongest barbarous ignorant people some one then whom God had endewed with singular wisedome to inuent thinges necessary for the nourishing and defence of the multitude and to administer iustice did so farre excell other that all the rest were but beastes in comparison of him and for that excellencio willingly had this authoritie giuen him of the multitude and of the Gentils when he was dead almost when he was yet lyuing was taken for a God of others for a Prophet Such among the Iewes were Moses Iosua the other iudges as Samuel c. Romulus Numa amongest the Romances Lycurgus and Solon diuerse other among the Greekes Zamolxis among the Thracians Mahomet among the Arabians And this kinde of rule among the Greekes is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which of it selfe at the first was not a name odious But because they who had such rule at the first did for the most part abuse the same wared insolent proude vniust and not regarding the common wealth committed such actes as were horrible and odious as killing mē without cause abusing their wives daughters taking and spoyling all mens goods at their pleasures and were not shepheardes as they ought to be but rather robbers and deuourers of the people wherof some were contēners of God as Dionysius other while they lyued like diuils and would yet be adored accompted for Gods as Caius Caligula and Domitian that kind of administration and maner also at the first not euill hath taken the signification definition of the vice of the abusers so that now both in Greeke Latine and English a tyrant is counted he who is an euill king who hath no regard to the wealth of his people but seeketh onely to magnifie himselfe and his and to satisfie his vicious and cruell appetite without respect of God of right or of the law because that for the most part they who haue had that absolute power haue beene such Of the name king thadministration of England CHAP. 9. THat which we call in one syllable king in english the olde english men and the Saxons from whom our tōgue is deriued to this day calleth in two syllabes cyning which whether it commeth of cen or ken which betokeneth to know vnderstād or can which betokeneth to be able or to haue power I can not tell The participle absolute of thone we vse yet as when we say a cūning man Vir prudens aut sciens the verbe of thother as I can do this possum hoc facere By olde and auncient histories that I haue red I do not vnderstand that our nation hath vsed any other generall authoritie in this realme neither Aristocraticall nor Democraticall but onely the royall and kingly maiestie which at the first was diuided into many and sundrie kinges ech absolutely reigning in his countrie not vnder the subiectiō of other till by fighting thone with thother the ouercommed alwayes falling to the augmentation of the vanquisher and ouercommer at the last the realme of England grew into one Monarchie Neither any one of those kinges neither he who first had all tooke any inuestiture at the hād of Themperour of Rome or of any other superiour or forraine prince but helde of God to himselfe and by his sword his people and crowne acknowledging no prince in earth his superiour and so it is kept holden at this day Although king Iohn by the rebellion of the nobilitie ayded with the daulphin of Fraunce his power to appease the Pope who at that time possessing the consciences of his subiectes was thē also his enemy and his most greeuous torment as some histories do write did resigne the crowne to his legate Pandulphus and tooke it againe from him as from the Pope by faith and homage and a certaine tribute yearly But that act being neither approoued by his people nor established by act of parliament was forthwith and euer sithens taken for nothing either to binde the king his successors or subiectes VVhat is a common wealth and the partes thereof CHAP. 10. TO be better vnderstood hereafter it is necessarie yet to make a third diuision of the common wealth by the partes thereof A common wealth is called a society or common doing of a multitude of free men collected together and vnited by common accord couenauntes among themselues for the conseruation of themselues aswell in peace as in warre For properly an host of mē is not called a common wealth but abusiuely because they are collected but for a time and for a fact which done ech diuideth himselfe from others as they were before And if one man had as some of the olde Romanes had if it be true that is written v. thousande or x. thousande bondmen whom he ruled well though they dwelled all in one citie or were distributed into diuerse villages yet that were no common wealth for the bōdman hath no communion with his master the wealth of the Lord is onely sought for and not the profit of the slaue or bondman For as they who write of these thinges haue defined a bondman or a slaue is as it were sauing life and humane reason but the instrumēt of his Lord as the axe the saw the chessyll and goluge is of the charpenter Truth it is the charpenter looketh diligently to saue correct and amend all these but it is for his owne profit and in consideration of him selfe not for the instrumentes sake And as these be instruments of the carpenter so the plow the cart the horse oxe or asse be instrumentes of the husbandman and though one husbandman had a great number of all those and looked well to them it made no common wealth nor could not so be called For the priuate wealth of the husbandman is onely regarded and there is no mutuall societie or portion no law or pleading betweene thone and
concerning such a matter say yea Then they which allowe the bill crie yea and as many as wil not say no as the crie of yea or no is bigger so the bill is allowed or dashed If it be a doubt which crie is the bigger they diuide the house the speaker saying as many as doe alowe the bill goe downe with the bill and as many as do not sitte still So they diuide themselues and being so diuided they are numbred who make the more part and so the bill doeth spéede It chaunceth sometime that some part of the bil is allowed some other part hath much contrariety and doubt made of it and it is thought if it were amended it would goe forwarde Then they chuse certaine cōmittees of them who haue spoken with the bil against it to amende it and bring it in againe so amended as they amongest them shall thinke méete and this is before it is engrossed yea some time after But y e agréement of these committees is no preiudice to the house For at the last question they will either accept it or dash it as it shall séeme good notwithstanding y ◠whatsoeuer the committees haue doone Thus no bill is an act of Parliament ordinaunce or edict of law vntill both the houses seuerallie haue agréed vnto it after the order aforesaide no nor then neither But the last day of that Parliament or session the Prince cōmeth in person in his Parliament robes and sitteth in his state all the vpper house sitteth about the Prince in their states and order in their robes The speaker with all the common house commeth to the barre and there after thankesgiuen first in the Lordes name by the Chaunceller c. and in the commons name by the speaker to the Prince for that hee hath so great care of the good gouernement of his people and for calling them together to aduise of such thinges as should be for the reformation establishing ornament of the common wealth the Chaunceller in y e Princes name giueth thankes to the Lords cōmons for their paines and trauailes taken which he saith the Prince will remember and recompence when time and occasion shall serue and y ◠he for his part is ready to declare his pleasure concerning their procéedings whereby the same may haue perfect life accomplishment by his princelie authoritie and so haue the whole consent of the Realme Then one reades the title of euerie act which hath passed at that session but only in this fashion An act cōcerning such a thing c. It is marked there what the Prince doth allowe and to such he sayth Le roy or la royne le veult And those be taken nowe as perfect lawes and ordinances of the Realme of Englande and none other and as shortlie as may be put in print except it be some priuate cause or lawe made for the benefit or preiudice of some priuate man which the Romans were wont to call priuilegia These be onelie exemplified vnder the seale of the Parliament and for the most part not printed To those which the Prince liketh not he answereth Le roy or la royne saduisera those be accounted vtterly dashed and of no effect This is the order and forme of the highest and most authenticall court of Englande by vertue whereof all those things be established whereof I spake before and no other meanes accounted vailable to make any new forfaiture of life member or landes of any English man where there was no lawe ordayned for it before Nowe let vs speake of the saide partes when they be seuerall Of the Monarch King or Queene of Englande CHAP. 3. THe Prince whom I nowe call as I haue often before the Monarch of Englande King or Quéene hath absolutelie in his power the authoritie of warre and peace to defie what Prince it shall please him and to bid him warre and againe to reconcile himselfe and enter into league or truce with him at his pleasure or the aduice onely of his priuie consell His priuie counsell be chosen also at the Princes pleasure out of the nobilitie or baronie and of the Knightes and Esquires such and so many as he shal thinke good who doth consult daily or when néede is of the weightie matters of the Realme to giue therein to their Prince the best aduice they can The Prince doth participate to them all or so many of them as he shall thinke good such legations and messages as come from forren Princes such letters or occurrentes as be sent to himselfe or to his secretaries and kéepeth so many ambassades and letters sent vnto him secret as he will although these haue a particular oth of a counseller touching faith and secrets administred vnto them when they be first admitted into that companie So that héerein the kingdome of Englande is farre more absolute than either the dukedome of Uenice is or the kingdome of the Lacedemonians was In warre time in the field the Prince hath also absolute power so that his worde is a law he may put to death or to other bodilie punishment whom he shall thinke so to deserue without processe of lawe or forme of iudgement This hath béene sometime vsed within the Realme before any open warre in sodden insurrections and rebellions but that not allowed of wise and graue men who in that their iudgment had consideration of the consequence and example asmuch as of the present necessitie especiallie when by anie meanes the punishment might haue béene doone by order of lawe This absolute power is called marciall lawe and euer was and necessarilie must be vsed in all campes and hostes of men where the time nor place do suffer the tariance of pleading and processe be it neuer so short and the important necessitie requireth spéedie execution that with more awe the souldier might be kept in more straight obedience without which neuer captaine can doe anie thing vaileable in the warres The prince vseth also absolute power in crying and decreeing the mony of the realme by his proclamation onely The mony is alwayes stamped with the pinces image and title The forme fashion maner weight finenesse and basenesse thereof is at the discretion of the prince For whom should the people trust more in that matter than their prince seeing the coine is only to certifie the goodness of the mettall and the weight which is affirmed by the princes image and marke But if the prince will deceaue them and giue copper for siluer or golde or enhaunce his coyne more than it is worth he is deceaued himselfe as well as he doth go about to deceaue his subiectes For in the same sorte they pay the prince his rentes and customes And in time they will make him pay rateably or more for meate drinke and victualles for him and his and for their labour which experience doth teach vs nowe in our dayes to be doone in all regions For there euer hath béene euer will be
many thinges different from the fashion vsed either in Fraunce or in Italie or in any other place where the Emperors lawes and constitutions called the ciuill lawes be put in vse it will be necessarie here to make a litle digression to the intent that that which shalbe said hereafter may be better vnderstood All pursuites and actions we call them in our English tongue pleas and in barbarous but now vsuall latine placita taking that name abusiue of the definitiue sentence whith may well be called placitum or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The French vseth the same calling in their language the sentence of their iudges areste or arest in which wordes nothwithstanding after their custome they do not founde the s. but we call placitum the action not the sentence and placitare barbarouslie or to pleade in english agere or litigare Now in all iudgements necessarily being two parties the first we call the impleader suiter demaunder or demaundaunt and plaintiffe In criminall causes if he professe to be an accuser we call him appellant or appellour and so accusation we call appeale The other we call the defendant and in criminall causes prisoner for he cannot aunswere in causes criminall before he do render himselfe or be rendred prisoner Index is of vs called Iudge but our fashion is so diuerse that they which giue the deadly stroke and either condemne or acquite the man for guiltie or not guiltie are not called Iudges but the xii men And the same order aswell is in ciuill matters and pecuniarie as in matters criminall Of pleas or actions CHAP. 9. PLeas or actions criminall be in English called pleas of the crowne which be all those which tende to take away a mans life or any mēber of him for his euill deseruing against the prince and common wealth And this name is giuen not without a cause For taking this for a principle that the life and member of an Englishman is in the power onely of the prince and his lawes when any of his subiectes is spoyled either of life or member the prince is endammaged thereby and hath good cause to aske accompt how his subiectes should come to that mischiefe And againe for so much as the prince who gouerneth the scepter and holdeth the crowne of Englande hath this in his care and charge to see the realme well gouerned the life members and possessions of his subiectes kept in peace and assuraunce he that by violence shall attempt to breake that peace and assuraunce hath forfeited against the scepter and crowne of England and therefore not without a cause in all inquisitions and inditementes if any be found by the xii men to haue offended in that behalfe streight the prince is saide to be partie and he that shall speake for the prisoner shall be rebuked as speaking against the prince Neverthelesse it is neuer defended but the prisoner and partie defendant in any cause may alleadge for him al the reasons meanes and defenses that he can and shall be peaceablie hearde and quietlie But in those pleas pursuites of the crowne procurer or aduocate he gettes none which in ciuill and pecuniarie matters be it for land rent right or possession although he plead against the prince himselfe is neuer denied Pleas ciuill be either personall or reall personall as contractes or for iniuries reall be either possessorie to aske or to keepe the possession or in rem which we cal a writte of right For that which in the ciuill lawe is called actio or formula we call writ in English so the Greekes called it worde for word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and in our barbarous latine we name it breue And as the olde Romanes had their actions some ex iure ciuili and some ex iure praetorio and ordinarily praetor dabat actiones formulas actionum so in Englande we retaine still this and haue some writtes out of the chauncerie other out of the common place or the kinges bench Of the chiefe Tribunals benches or courtes of England CHAP. 10. IN times past as may appeare to him that shall with iudgement reade the histories and antiquites of England the courtes and benches followed the king and his court wheresoever he went especially shortly after the conquest Which thing being found very cumbersome paineful and chargeable to the people it was agreed by parliament that there shoulde be a standing place where iudgement should be giuen And it hath long time béene vsed in Westminster hall which king William Rufus builded for the hall of his owne house In that hal be ordinarily séene 3. Tribunals or Iudges seates At the entrie on the right hande the common place where ciuill matters are to be pleaded specially such as touch landes or contractes At the vpper ende of the hall on the right hand the kinges bench where pleas of the crowne haue their place And on the left hand sitteth the Chauncelor accompanyed with the master of the Roules who in latine may be called custos archiuorum regis and certaine men learned in the ciuill lawe called Masters of the chauncerie in latine they may be named Assessores Of the times of pleading called termes of the Chauncelor and chauncerie CHAP. II. TWo things may be moued in question here how all Englande being so long and so large and hauing so many shyres and prouinces therein can be answered of iustice in one place and in 3. benches be they neuer so great An other whereas the kinges bench is exercised in criminall causes and in all pleas of the crowne and the common place in all ciuill causes reall and personall what place then hath the chauncerie The first question will séeme more maruelous and haue more occasion of doubt when I shall also tell that the lawe is not open at all times no not the third part of the yeare But where all other cities and common wealthes had all the yeare pleas suites and iudgementes except for certaine holy daies and haruest and vintage or when for some vrgent cause the lawe was commaunded to be stopped which is called Iustitium Contrarie in ours it is but fewe times open That is onely foure times in the yeare which they call termes After Michaelmas about ten daies during fiue or sixe wéekes at the least After Christmas about a moneth enduring by the space of thrée wéekes Then from xvij dayes after Easter by the space of thrée wéekes odde dayes Likewise from the sixt or seuenth day after Trinitie sunday during two wéekes and odde daies All the rest of the yeare there is no pleading entring nor pursuing of actions This small time and all that but in one place may séeme verse iniurious to the people who must be faine to suffer much wrong for lacke of Iustice and of place and time to pleade but vnto that héereafter I entende to answere more fully and in the meane while that shall suffise which the wise Cato answered to one who mooued that the
so The people being accustomed to liue in such an equalitie of Iustice that in such sort that y e rich hath no more aduantage therein than the poore the proces and procéedinges to the iudgement being so short and iudgementes also being peremptorie and without appellation Yet to helpe for small matters where no great summe is in question there are other courtes In euerie shire from thrée wéekes to thrée wéekes the sherife for small thinges not passing xl s. and in certaine hundreds and liberties the baylie likewise from thrée wéekes to thrée wéekes holdeth plea. And whosoever is possessioner and owner of a mannor may holde from thrée wéekes to thrée wéekes or at his pleasure of his tennantes and amongest his tennantes a court called a court Baron And there his tennantes being sworne make a Iurie which is not called the enquest but the homage These principallie doe enquire of the copie holders and other frée holders that be dead sith the last court and bring in their heires and next successours and likewise of incrochment or intrusion of anie of the tennantes against the Lorde or among themselues They make orders and lawes amongest themselues the paine of them if they be after broken commeth to the Lorde And if anie small matter be in controuersie it is put to them and commonly they doe ende it But these courtes doe serue rather for men that can be content to be ordered by their neighbours and which loue their quiet and profit in their husbandrie more than to be busie in the lawe For whether partie soeuer will may procure a writte out of the higher court to remooue the plea to Westminster In cities and other great townes there be diuerse liberties to holde plea for a bigger summe which doe determine aswell as the common lawe and after the same manner and yet for them that will it may be remooued to Westminster hall King Henry the eight ordained first a president Counsellers and Iudges one for the marches of Wales at Ludlowe or else where an other for the north parts of Englande at Yorke where be manie causes determined These two are as be Parliaments in Fraunce But yet if there be anie matter of great consequence the partie may mooue it at the first or remooue it afterwardes to Westminster hall and to the ordinarie Iudges of the Realme or to the Chanceller as the matter is These two courtes doe heare matters before them part after the common lawe of Englande and part after the fashion of the chauncerie Of the Leete or lawe day CHAP. 18. LEete or law day is not incident to euerie mannor but to those onely which by special graunt or long prescription haue such libertie This was as it may appeare first a special trust and confidence and commission giuen to a fewe put in trust by the Prince as is nowe to the Iustices of peace to sée men sworne to the Prince to take pledges and suerties in that maner of one for an other to answere for obedience and truth to enquire of priuie conspiracies fraies murders and bloudsheddes and to this was added the ouersight of bread and ale and other measures Many times they that be out of the homage and court Baron of that mannor and Lordship be neuerthelesse astreined and answerable to come to the Léete This Léete is ordinarily kept but twise in the yeare and that at termes and times prescribed The Léete or Lawe day is all one and betokeneth worde for worde legittimum or iuridicum diem Lawe the olde Saxons called lant or lag and so by corruption and chaunging of language from Lant to Leete vnderstanding day They which kéepe our full english terme call it yet lawe day Of the proceedinges of causes criminall and first of the Iustices of the Peace CHAP. 19. BEfore the maner of procéeding in causes criminall can be well vnderstood it will be necessarie to speake of thrée persons the Iustices of peace the Coroners and the Constables The Iustices of peace be men elected out of the nobilitie higher and lower that is the Dukes Marquisses Barons Knightes Esquiers and Gentlemen and of such as be learned in the lawes such and in such number as the Prince shall thinke méete and in whome for wisedome and discretion he putteth his trust inhabitantes within the countie sauing that some of the high nobilitie and chiefe magistrates for honors sake are put in all or in the most of the commissions of all the shires of England These haue no time of their rule limited but by commission from the Prince alterable at pleasure At the first they were but iiij after viij nowe they come commonly to xxx or xl in euerie shire either by increase of riches learning or actiuitie in policie and gouernement So many more beeing founde which haue either will or power or both are not too manie to handle the affaires of the common wealth in this behalfe Of these in the same commission be certaine named which be called of the Quorum in whome is especiall trust reposed that where the commission is giuen to xl or xxx and so at the last it commeth to iiij or thrée it is necessarie for the performance of many affaires to haue likewise diuerse of the Quorum The wordes of the commission be such Quorum vos A B. C D. E F. vnum esse volumus The Iustices of the peace be those in whom at this time for the repressing of robbers théeues and vagabunds of priuie complots and conspiracies of riotes and violences and all other misdemeanors in the cōmon wealth the Prince putteth his special trust Each of them hath authoritie vpon complaint to him made of any theft robberie manslaughter murder violence complotes riottes vnlawefull games or any such disturbance of the peace and quiet of the Realme to cōmit the persons whom he supposeth offendors to the prison and to charge the Constable or sherife to bring them thither the gaoler to receaue them and kéepe them till he and his fellowes doe méete A fewe lines signed with his hande is ynough for that purpose these doe méete foure times in the yéere that is in each quarter once to enquire of all the misdemeanors aforesaide at which daies the sherife or his vndersherife with his baylifes be there to attende vppon him who must prepare against that time fower enquestes of xxiiij yeomen a péece of diuerse hundredes in the shire and besides one which is called the great enquest out of the bodie of the shire mingled with all These fiue enquests are sworne before them to enquire of all heretiques traitors theftes murders manslaughters rapes false moniers extortioners riottes routes forcible entries vnlawefull games and all such thinges as be contrarie to the peace and good order of the Realme to bring in their verdict If they among themselues vpon their owne knowledge doe finde any culpable they cause one of the clerkes to make the bill And if any be there to complaine vppon any
prisoner standeth héere at the barre if any man can say anything against him let him now speake for the prisoner standeth at his deliueraunce if no man doe then come hee is deliuered without any further proces or trouble agréeing first with the gaoler for his fées And these be called acquited by proclamation Twise euerie yeare the one is commonly in lent what time there is vacation from pleading in Westminster hall the other is in the vacation in summer The Prince doth sende downe into euerie shire of Englande certaine of his Iudges of Westminster hall and some Sergeantes at the lawe with commission to heare and determine ioyntly with the Justices of the peace all matters criminall and all prisoners which be in the gaoles These Iudges doe goe from shire to shire till they haue doone their circuit of so manie shires as be appointed to them for that yeare at the ende of the terme going before their circuit it is written and set vp in Westminster hall on what day and in what place they will be That day there méeteth all the Justices of the peace of that shire the sherife of that shire who for that time beareth their charges and asketh after allowance for it in the Exchequer The shirife hath readie for criminall causes as I writ before at the sessions of inquirie iiii v. or vi enquestes readie warned to appeare that day to serue the Prince and so manie more as he is commaunded to haue readie to go in civill matters betwixt priuate men which they call Nisi prius because that worde is in the writ In the towne house or in some open or common place there is a tribunall or place of iudgement made aloft vpon the highest bench there sitteth the two Judges which be sent downe in Commission in the midst Next them on eche side sitteth the Justices of peace according to their estate and degrée In a lower bench before them the rest of the Justices of the peace and some other gentlemen or their clarkes Before these Iudges and Justices there is a table set beneath at which sitteth the Custos rotulorum or kéeper of writtes Thexchetor the vndershirife and such clarkes as doe write At the end of that table there is a barre made with a space for thenquestes and xii men to come in when they are called behind that space another barre and there stand the prisoners which be brought thither by the gaoler all chained one to another Then the cryer crieth and commaundeth silence One of the Iudges briefely telleth the cause of their comming giueth a good lesson to the people Then the prisoners are called for by name and bidden to aunswere to their names And when the Custos rotulorum hath brought foorth their enditements the Iudges do name one or two or thrée of the prisoners that are endicted whom they will haue arraigned There the clarke speaketh first to one of the prisoners A. B. come to the barre hold vp thy hand The clarke goeth on A. B. thou by the name of A. B. of such a towne in such a countie art endicted that such a day in such a place thou hast stolen with force and armes an horse which was such ones of such a colour to such a valor and carried him away feloniously contrarie to the peace of our soueraigne Ladie the Quéene What sayest thou to it art thou guiltie or not guiltie If he will not aunswere or not aunswere directly guiltie or not guiltie after he hath béene once or twise so interrogated he is iudged mute that is dumme by contumacie and his condemnation is to be pressed to death which is one of the cruellest deathes that may be he is layd vpon a table and an other vppon him and so much weight of stones or lead laide vppon that table while as his bodie be crushed his life by that violence taken from him This death some strong stout hearted man doth choose for being not condemned of felonie his bloud is not corrupted his lands nor goods confiscate to the Prince which in all cases of felonie are commonly lost from him and his heires if he be foreiudged that is condemned for a felon by the lawe If he confesse the enditement to be true then when he is arraigned no xii men goeth vpon him there resteth but the Iudges sentence of the paine of death If he pleade not guiltie as commonly all théeues robbers murtherers doe though they haue confessed the fact before the Justice of the peace that examined them though they be taken with the maner which in Latine they call inflagranti crimine howesoever it be if he pleade there not guiltie the Clarke asketh him howe he will be tryed and telleth him he must saie by God and the Countrie for these be the words formall of this triall after Inditement and where the Prince is partie if the prisoner doe say so I will be tryed by God and the Countrie then the Clarke replyeth Thou hast béene endicted of such a crime c. Thou hast pleaded not guiltie being asked how thou wilt be tryed thou hast aunswered by God and by the Countrie Loe these honest men that be come here be in the place and stead of the Countrie and if thou hast any thing to say to any of them looke vpon them well and nowe speake for thou standest vpon thy life death Then calleth he in the first Juror B. C. come to the booke and so giueth him an othe to goe uprightlie betwixt the Prince and the prisoner c. If the prisoner obiecteth nothing against him he calleth an other and so an other till there be xii or aboue and for the most part the prisoner can say nothing against them for they are chosen but for that day and are vnknowen to him nor they know not him as I said being substantial yeomen that dwell about the place or at the least in the hundred or néere where the felonie is supposed to be committed men acquainted with daily labour and trauaile and not with such idle persons as be readie to doe such mischiefes When the enquest is full and the prisoner hath obiected nothing against them as in déede seldome he doeth for the cause aboue rehearsed The clarke saith to the cryer countes in French as ye would say recken and so nameth all those that be on the quest The crier at euerie name cryeth aloude one then ij iij. iiij and so till the number be full of xii or more then saith good men and true and then sayth aloude If any can give euidence or can saie any thing against the prisoner let him come nowe for he standeth vpon his deliuerance If no man come in then the Iudge asketh who sent him to prison who is commonly one of the Justices of peace He if he be there deliuereth vp the examination which he tooke of him and vnderneath the names of those whom he hath bound to giue euidence although the malefactor hath
euidence or too much fauour in the countrey and power of the aduersarie there is in our countrey as well as theirs both stopping and prolongation of Iustice. For what will not busie heades and louers of trouble neuer being satisfied inuent in any countrey to haue their desire which is to vex their neighbours and to liue alwaies in disquiet Men euen permitted of God like flies and lise and other vermine to disquiet them who would imploie themselues vpon better businesse and more necessarie for the common wealth these men are hated and feared of their neighbours loued and aided of them which gaine by proces and waxe fatte by the expence trouble of other But as these men ordinarily spende their owne thrift and make others against their wils to spende theirs so sometime being throughly knowen they do not onely liue by the losse like euill husbandes but beside rebuke shame by the equitie of the Prince and courtes soueraigne they come to be extraordinarily punished both corporally by their purse which thing in my minde is as royall and princely an act and so beneficiall to the commonwealth as in so small a matter a King or a Quéene can doe for the repose and good education of their subiectes Of that which in England is called appeale in other places accusation CHAP. 3. IF any man hath killed my father my sonne my wife my brother or next kinsman I haue choice to cause him to be endicted by giuing information to the enquest of enquirie although he chaunce to escape the Constable or Iustices handes and therefore not to be apprehended and thereupon to procure him to be outlawed or else within a yéere and a day I may enter my appeale that is mine accusation against him If I begun first to pursue him by information or denunciation to enditement I am nowe no partie but the Prince who for his duetie to God and his common wealth and subiects must sée iustice executed against all malefactors offenders against the peace which is called Gods and his doeth in such maner as I haue saide before If I leaue that and will appeale which is profer my accusation against him who hath doone to me this iniurie the defendant hath this aduauntage to put himselfe to the Iurie which is to that which before is saide to haue that issue and triall by God and his countrie whereof the fashion I haue at large declared or to demaund the triall by battle wherein both the parties must eyther themselues in person or else finde other for them who be called in our Law Champions or Campions some doeth interprete them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because they be men chosen fat lustie fit to the feate or as the Frenche doe terme them adroicts aux armes which shall fight it out by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or as now they doe call it duellum or the campe which shall haue all things equall but according as Mars giueth the victorie so the Lawe is iudged the one as peractus reus the other is calumniator to suffer the paine of death So that by the great assise there is no appellation but death or life to the defendant but this is more daungerous and equall for the one or the other must die So it is not in the grande assise for the reus or defendaunt is onely in daunger of death Short it is from day to sunne set the quarell is ended or sooner who hath the better fortune This seemeth very militarie as in maner all our policie of Englande and to haue as small to doe with Lawyers as with Phisitions quicklie to dispatche and for the rest to returne eche man to his buisinesse to serue the common wealth in his vocation The Popes of Rome and men of the Church who of long time haue had dominion in our consciences and would bring things to a more moderation haue much detected this kinde of triall and iudgement as reason is euerie man misliketh that which is not like to his education and colde reasoning by Theologie and Philosophie they I say much mislike many things doone necessarily in whot policie At the least a common wealth militarie must aduenture many things to kéepe it in quiet which cannot séeme to precisely good to them which dispute thereof in the shadowe and in their studies Howsoeuer it be this kinde of triall of long time hath not béene vsed So that at this time we may rather séeke the experience of it out of our histories of time passed than of any viewe or sight thereof of them which are nowe aliue Neverthelesse the Lawe remaineth still and is not abolished and if it shall chaunce the murtherer or mansleer the one we call him that lyeth in waite and as they terme it in Frenche de guet appendaunt killeth the man the other who by casuall falling out and sodaine debate and choller doeth the same which way soeuer it be doone if he that hath slaine the man hath his pardon of the prince as occasion or the fauour of the Prince may so present y ◠he may haue it yet the partie grieued hath these two remedies I say to require iustice by grand assise or battle vpon his appeale priuate reuenge which is not denyed him And if the defendant either by great assise or by battle be conuinced vpon that appeale he shall die notwithstanding the Princes pardon So much fauourable our Princes be and the lawe of our Realme to iustice and to the punishment of blood violently shed Of the Court of Starre Chamber CHAP. 4. THere is yet in Englande an other court of the which that I can vnderstand there is not the like in any other Countrie In the Terme time the Terme time as I haue heretofore shewed I call the time and those daies when the Lawe is exercised in Westminster hall which as I haue said is but at certaine times and termes every wéeke once at the least which is commonly on Fridaies and Wednesdaies and the next day after that the terme doeth ende the Lorde Chauncellor and the Lordes and other of the priuie Counsell so many as will and other Lordes and Barons which be not of the priuie Counsell and be in the towne and the Iudges of England specially the two chiefe Iudges from ix of the clocke till it be xj doe sit in a place which is called the starre chamber either because it is full of windowes or because at the first all the roofe thereof was decked with images of starres gilted There is plaints heard of riots Riot is called in our English terme or speache where any number is assembled with force to doe any thing and it had the beginning because that our being much accustomed either in foreine wars in Fraunce Scotland or Ireland or being ouermuch exercised with ciuill warres within the Realme which is the fault that falleth ordinarily amongest bellicous nations whereby men of warre Captaines and souldiers become plentifull which when they