and nearer in infinitum yet they still shall be Asymptots and never meet for such attend Hyperbolies Which yet is more Demonstrable by Reason than is that of Mersennus or others by sense that Concave Glasses may be placed in such a continued proportion may I say of Reflection that by such it may be possible to fire a Ship or other matter combustible at a far greater distance than between Dover and Calice I say not as some have said in infinitum But in this and all the Mathematicks who can add to him that did contract and correct Longomont into a page Our Country-man he is but at too great a distance in Breda But I must not wander from K. Stephen His Repeal of Roman Laws is also in Sarisburiensis living in the time of K. Henry the 2d an Author of Credit and polite enough It is among his Court trifles Polteraticus or de nugis Curialium Nor is he content to meddle only with mean Courtiers but even of the highest he is plain enough And one of his Thesis is that by Reason and Scripture it is both Lawful and a glorious Act to kill a publick Tyrant But of his exceptions to the Oath of Fealty we must have more in its Time and Place That of K. Stephen is in his 8th Book and 22 chap. near enough to his discourse of Tyrany Where we have also an hint of him that brought those Laws into this Kingdom Theobald the Arch Bishop of Canterbury going to Rome for his Pall some say and for this the Monk of Malmesbury would be considered Who hath also Recorded K. Stephens Oath of which we must speak again I must not dispute whether those Italian Laws by him prohibited were the Civil or the Canon Laws which I rather believe Although I cannot deny but the Civil also did come in or intrude upon our English Laws Nor may I forget a passage of Parliament in that famous Appeal or charge of Treason in King Richard the Second's Time The Lawyers especially Civilians were consulted about the charge They conceived it not to be rightly moulded according to the forms of Law But the great Council resolved and declared that they would proceed by no other Law but the course and Custom of Parliament To which they added that England never was ought or should be Ruled or Governed by the Civil Law which yet is enough some think too much in causes Maritime and Ecclesiastick that I speak not of any other Courts Fortescue or rather the young Prince in him telleth us of some of our Kings that have attempted to bring in the Civil Laws and patrias Leges abolere but I cannot tell who those were no more than the Learned Commentator Except perhaps he may reach up to King Lucius who did desire the Roman Laws even for the State but can we say the Civil Laws were then Born or at least Christned enough for a Christian King But the reason why any King so much esteemed the Civil Law may be rightly guessed to be this grand maxim of Tyranny Quod principi placuit Legis habet vigorem A Sentence of the Civil Royal or Imperial Laws citeth indeed by Glanvil Bracton and others of our Lawyers who refuted rather than allowed it But in this who can add to Mr. Seldens late Dissertations on Fleta Wigornensis lived till K. Stephens time In him or his Continuer we find what Laws these were how or who did bring them hither For we are there told that Theobald with other Prelates had a Summons from the Pope to Rome and there were admitted to a Council such as many ages could not Parallel For thence he saith they brought those Canons or Decrees quae longe lateque per Angliam jam Conscriptae He lived not perhaps to know they were prohibited but he doth intimate enough in what a cold manner the Parliament did entertain the Legate sent from Rome He was a great Leveller it seemeth For he came to pull down and to destroy that so he might plant or build we read it in the Monks Who bring this Legate Coram Rege primoribus And again before the Commons also Episcopis Abbatibus innumera Cleri Populi multitudine Ere long we find K. Stephen at another Parliament ad Boum vadum Oxes foord or Oxford Where some Lords or Prelates are committed for suspicion of Treason And by some it is ascribed to the King alone But in the Monk of Malmesbury we may find it done upon complaint of Those he calleth potent Laicks and by Councel or perswasion of Magnates and Proceres Regni The thing doth speak it self For one of the Lords committed was the great Roger of Salisbury the grand Favorite of whom before His Charge was this in chief that without leave of King and Parliament he had built and fortified a Castle But in his own Devise this was the Castles name he did ensnare himself The Name and Fate hath since been found observed more than once and yet they write it was the fairest Castle in all Europe Matth. Paris followeth Huntingdon and Hoveden but in this they both come short of Malmsbury well acquainted with that famous Roger whose misgiving heart was like to have prevented what did follow in that Parliament But so we might have lost or mist that Act which here was made for the Militia setled clearly in the King and Parliament We find it also in the old Continuer of the Monk of Worcester Who living at that time doth tell us that in full Parliament habito postmodum Concilio coram primoribus Angliae statutum est it was Enacted for a Statute that All Burghs Castles Forts c. in quibus secularia solent exerceri negotia should submit to the King Parliament Regis Baronum suorum juri cedant And by vertue of this Act of Parliament was the Castle of the Devise presently demanded and at length yeilded while the great Prelates neck or his Sons who had been also Chancellor was in the Rope to have prevented his Quartain of which he died In the same Author we find much of an High Constable and several men with that Title One is Milo who did lead the King in Royal State cum honore Regiam ad Aulam ubi Cives fidelitatem Iuraverunt c. Ere long we find him charged with Treason so as is worth considering for the Militia and his Office conferred on Walter de Bello Campo Wigornensi Vice-comite But discontents that rose before did now increase And when the Oath of Fealty was pressed on some they refuse and say the King may take their words if he please But for a Bishoprick the Prelates perswaded a grave man to swallow the Oath and so he did on much reluctance Maurice was his Name Elected by the people a Clero Populo being then presented to the King by Bishops Attesting his deserts and due Election Another Bishoprick is conferred on Philip the Lord Chancellor but Consilio Baronum
I am now grown wiser and do now see I may absolve my self from that which I would not have taken but by force or fraud But can the World this vain and frail and foolish World command controll and over-awe my Soul to take an Oath the Oath of God to what I think unjust It may be so for I am Man and frail with those that are the weakest for He knoweth my foolishness but it should not be and when it is I must be very tender lest I adde more Sin to Sin as bad or worse to that which is too Bad already For by breaking such an Oath I may do worse much worse than first I did in making it except I Swore to sin and then I may not keep my Oath And I believe the Iews might not have pleaded Force or over-awing Arguments in Swearing Homage to the King of Babylon and yet 't is known how God did charge and chasten that said Perjury nor is it altogether inconsiderable that good Lot's or at least the men of Sodom's freeing themselves from Chedorlaomer is stiled by God himself plain downright Rebellion Yet there was another King of Sodom and Chederlaomer seemeth but a kind of Tyrant that had but little Right but Conquest and his Might The Catholicks may seem too free in dispensing with Oaths to Protestant Kings but some there are with them Sacred Persons And because I now dispute ad Hominem I shall touch on that in which we know them most Religious Their solemn Obligation to the Pope which yet is such they will not deny as doth not secure or free him from being Iudged or Coerced in cases of Distraction Natural in Raving or Moral in Raging so that danger be apparent to those about him or in some Spiritual Frenzie of notorious Heresie Convict the Chair in Conclave not the Person is exempt or much suspected while himself refuseth Legal Tryal by a Council or the like The Case is argued in Occhams Dialogues with others Our Oath of Fealty comes next upon the Test although I might interpose as a Parallel to the Pope the Iewish High Priest a very Sacred Person and the Lords Anointed also but yet such as must still submit to the Sentence of the Great Sanhedrin nay and that for his Life also if they so adjudged him For which of the Sanhedrins Power over the Jewish King in Criminals and in War except only what God had commanded against Amaleck or the seven Nations I might cite several clear passages from the Talmud and those that expound it long before Cochius or Sanhedrin or Schickards Ius Regium Our Land seemeth to Mourn because of Oaths but I must only touch the civil Part or what is Legal and our Law seemeth Deficient in this of Oaths for there is scarcely any Law since the Star Chamber to punish Perjury but only where it is before a Court of Justice and there also the Punishment of Witnesses is very light and exceeding short of Attaint on Jurors by the Common Law Our Customs seem to overgoe our Laws in much of Oaths They were but Attestations though most Solemn in the Name and Presence of God As the Lord doth Live But they are now brought to Imprecations or a kind of Curse So help me God and the Contents of this good Book Yet so it was of old at Combat on Appeal the Appellè did first devote himself Again some force a Kissing of a Book the Law requireth but a Sight and Touch. For ought I find the Saxon Jurors were Sacra Tenentes In the first Norman times it was Sacris Tactis and in later writs Evangelijs Tactis Nay the Priests hand was upon his Breast in Matthew Paris not upon the Book and the Villain seemeth forbidden to touch the Book The Statute saith he shall hold his Hands over it but the Freeman upon it and from this Touch with the Body such an Oath was called Corporal The Iews and eldest Christians in their Swearing Blessing Praying lifted up the Hand and sometimes Bowed the Head or Knee for In his Name shall all Knees bow seemeth but Parallel to that of the Psalmist In thy Name will I lift up my Hand and the Grecian or Trojan Princes lifted up their Scepters in Swearing but others held Earth and Water in Allusion perhaps to the sacred Styx Most if not all publick Officers were tyed to their Dutyes by some Oaths but they were made by Parliament in all Ages This being a Pillar in our Laws that none can make alter or impose an Oath without an Act of Parliament or Custom by the Common Law 'T is strange how much in all we degenerate from our good Ancestors So that with us to break ones Oath even in the greatest Office is but a kind of Petty Aggravation as they call it rather than a Crime because such Oaths be now accounted but meer Forms or Ceremonious Shaddows But it was not so ab initio and among other Precedents I find the old Mirrour speaking of a Chancellour of England charged with Perjury for taking a small Summe of Money half a Mark for Sealing of a Writ which was against his Oath being neither to Deny Delay or Sell Justice or Remedial Writs Yet Six Pence was allowed to the King for Sealing of a Writ How great a Crime they did account such Perjury I need not say to Lawyers or to any that have read the Saxon Parliaments But of all our Oaths those seemed to be most content to be counted Formal That they were imposed on meer Children of a dozen Years old how many such we have or had in great Schools or Universities may be known and felt too much I fear And the Oath of Allegiance was twelve Years old and so pressed at the Leets or Turns but did they mean we should Observe it but as Children not as Men or Christians It is true the Saxons also had a twelve-Year-old Oath but against Theft and how the Laws of Henry the first did Annul the Oaths of Children was observed and the fifty ninth Chapter of those Laws forbiddeth any to Plead or to be Pleaded in Iudicio till the Age of fifteen It was also a Maxim in our Law Books that Minors could not Essoyn because they could not Swear and that Homage might be done in Nonage but not Fealty For although Homage was the more Honourable done upon the Knee yet Fealty was the more Sacred being ever done by Oath and from hence is the usual Phrase in all Lawyers and Historians to Do Homage but to Swear Fealty Must our Allegiance only run before our Reason or Discretion which yet was our great Fealty for it differed little from Homage with the Oath of Fealty to Mean Lords but in the Salvo which I touched before and must again being one good help to explain our Allegiance I shall acknowledge that Allegiance ought to have been kept by all Subjects although they never took that Oath which it may be many did not especially
quem injurià afficiant Beseeching them mainly to mind this That they wronged none A most pious Christian Motion And our Monthly County-Courts are as old as this Parliament at Exon. The Acts are printed But I must not digress to their Ordeals appointed there for Perjury In this Kings Reign the Pope sent his Bull to excommunicate the King and all his Subjects For that Per 7 annos destituta fuerat Episcopis omnis Regio Gavisorum id est West-Saxonum Whereupon the King summoned a Parliament Convocavit Synodum Senatorum Gentis Anglorum As saith the Monk of Malmsbury Et Eligerunt constituerunt Singulos Episcopos Singulis Provinciis Gavisorum For the Bishops Shire used to be equal to the Earls or the Ealdormens Shire with whom he sate in Folkmoote Et quod Olim duo habuerunt in quinque diviserunt King Ethelstane came next He was the first of all the English Kings that ruled over all the Island conquering Wales and regaining Scotland Which being subject to England as a Dukedom thereof was advanced to a Politick and Royal Kingdom As the learned Fortescue doth plainly affirm And for this against all that Buchanan writeth I need onely refer to the Authors and Records cited by the great Master of Antiquities with other Learning Mr. Selden in his short but pithy Notes on it with Hengham To which we may adde somewhat in Polydore and the Saxon Chronology from the year 934 but especially from Oswald's Laws and others of the famous Edgar vouching Ethelstane for Scotland Of which we read in many places beside the fourth Part of the great Reports But that victorious Monarch suffered the Scot to reign under him saying That it was more glorious to make a King than to be a King A pious Prince to whom we owe for translating the Bible from Hebrew which some think he did by some Converted Jews Among his Laws now extant we find divers enacted in Celebri Gratanleano Concilio where there were Archiep. Optimates Sapientes ab Ethelstano vocati frequentissimi And again at Exon we find him Mid his Wytan and their Wergylds for the King Archbishop Eorles Bishops Ealdermen and other Degrees may suffice to prove them to be Acts of Parliament With those several Degrees there mentioned we may compare the Laws of King Edgar and Canute in divers places one of the Ranks of their Nobility as a General or great Commander in Wars which may be observed for the Militia Edmund succeeded and at London holds a Parliament of Clergy and Laity ge Godcundra ge Worulcundra And again Mid Witena getheahte gegodra hada gelewedra And to the Parliament he giveth solemn Thanks for their Aid in setling the Kingdoms Peace His Laws are printed And we omit his Charter to the Church of Glastonbury which was made cum Concilio Consensu Optimatum as we read in Malmsbury But I must not omit that Parliament of his recorded in the Mirrour where we find a kind of Appeal or a legal Accusation of Treason brought by Roceline against Walligrat in full Parliament in the time of King Edmund In King Edred's Reign there was a Parliament solemnly summoned by Writ as we read at large in the Abbot of Crowland To which there was then a great Charter confirmed being drawn or dictated by Turketulus then Abbot but he had been Lord Chancellor And the date is in Festo Nat ' B. Mariae cum Vniversi Magnates Regni per Regis Edictum summoniti tam Archiepiscopi Episcopi ac Abbates quam Caeteri totius Regni Proceres Optimates Londoniis Convenissent ad tractandum de Negotiis Publicis totius Regni in Communi Concilio Edgar was a great Monarch and as great a Conqueror by Sea as Ethelstane by Land It might be easier to shew his four Seas of which so many speak than to set their exact bounds Yet it may not be unworthy of our thoughts to consider how our Ancestors did often divide the Office of their Admirals usually as Nature hath parted our Seas as thinking it indeed too great an honour and a burthen for a Subject to be Admiral of all the Seas of such an Island But the late Cardinal of France did wisely it was thought dispose or rather retain that Office as the best Jewel of that Kingdom which yet by Sea might yield to this But I must not digress nor can I determine the bounds of Edgar's Conquest to the North they say to Norway or the West Of which some speak as if they would but give us hints for farther search and Queries I dare not affirm that in those days our Saxon or British Ancestors did know America But if we may credit any Records besides the Scriptures I believe or know it might be said and proved well that this new World was known and partly inhabited by Britains or by Saxons from this Island three or four hundred years before the Spaniards coming thither Nay the more I consider the Discourses which did pass between the Spaniards and the Mexicans the more I could believe the King himself of Mexico might possibly descend from those that went from hence to Florida or rather Mexico So that we need not wonder at the British Words or Beads the Crucifix or other Reliques which the Spaniards found at their Arrival And for this besides so many other Authors we have much among the British Annals Those in special left by Caradoc of Lancarvan or from him continued by the Beirdhs of Conwey and Stratford gathered and translated by the learned Llhoyd To which we may adde what Doctor Powell hath of this out of Records and best approved British Authors in the Life of Owen Gwyned or David and Madoe his Sons about the Reign of King Stephen To which at least for that which concerneth Hanno or the old Navigations with Plato's Atlantis or what else appeareth in Aristotle Theophrastus Virgil Seneca with others it may not be amiss to compare two late and very learned French Authors of Peleg and orbis maritimus very worthy I think of good perusal But to return to Edgar's Parliaments How that great Council did often dispose the King himself we must discourse in a fitter place We shall now but observe that good Historians tell us that King Edgar by the Council of the Kingdom did repeal the Acts of Edwin both his brother and predecessor Convocato ad Brandanfordeam Regni Concilio fratris Edwini Acta decreta rescindit And the famous Oswald's Law was signed by this King Cum consensu Concilio astipulatione Archiepiscoporum Principium Magnatum It is printed and found in ancient Authors King Edgar's Charter to Glastonbury reciting the Acts of so many Kings before him was confirmed Generali assensu Pontificum Abbatum Optimatum If we may believe the old Monk And the Charter is to be read at large Archiepiscopis adhortantibus consentiente etiam annuente Brithelmo Fontanensi Episcopo caeterisque Episcopis Abbatibus Primatibus And
quo Lanfrancus diratiocinatur and the conclusion that he was to hold his Lands and Customs by Sea and Land as free as the King held his ezcept in three things si regalis via fuerit effossa arbor incisa juxta super eam ceciderit si homicidium factum sanguis in ea fusus fuerit Regi dabit alioquin liber a Regis exactoribus In the same Author were read of a Great Counsel at London in that Normans Reign and of another at Glocester where the Arch Bishop of York jubente Rege et Lanfranco consentiente did consecrate William Bishop of Durham having no help adjunctorium from the Scottish Bishops subject to him which may be added to that before of Scotland belonging to the Province or Diocesse of York Nor can I abstain from the next paragraph in the same Author how Lanfranc did consecrate Donate a Monk of Canterbury ad Regnum Dubliniae at the Request of the King Clergy and people of Ireland Petente Rege clero populo Hiberniae which with divers others might be one Argument for the Antiquity of Irish Parliments and their dependance on England long before King Henry the Second For which I might also cite King Edgars Charters Oswalds Law and divers Historians of his times But the Charters mention Dublin it self and yet our Lawyers are so Courteous as to free Ireland from our Laws and Customs till towards the end of King Iohn and some of them conjecture that the Brehon Law came in again and that our Parliament obliged them not till Poynings Law in Henry the seventh But to return to our Norman King I need not beg proofs of Parliaments in his time at least not to those who know the Priviledge of antient Demesne which therefore is free from sending to Parliaments and from Knights Charges and Taxes of Parliament because it was in the Crowns not only in King William but before him in King Edward and the Rolls of Winchester for which the old Books are very clear with divers Records of Edward the third and Henry the fourth besides natura brevium That I say nothing of the old Tractat. de antiquo Dominico which is stiled a Statute among our English Statutes And besides all the late Reports or Records I find it in the Year Books of Edward the Third that he sued a Writ of Contempt against the Bishop of Norwich for encroaching on Edmondsbury against express Act of Parliament By King William the Conqueror and by the Arch-Bishop of Canterbury and all the other Bishops Counts and Barons of England It is 21 of Ed. 3. Mich. fol. 60. Title 7. Contempt against an Act of Parliament This might well be one of the reasons why the great Judge giveth so much credit to the old Modus of Parliament as it was held in the time of King Edward the Confessor which as the antient copy saith was by the discreet men of the Kingdom recited before King William the Norman and by him approved and in his time used I have cited it before and compared it with Irish Modus which my much honoured friend Mr. Hackewil one of the Masters of Chancery hath under his hand attested from the Great Seal and Charter of Henry the fourth which himself hath seen reciting a former Charter of King Henry R. Angliae Hiberniae conquestor Dominus who sent the same Modus into Ireland Where himself or his Son Iohn sans terre had no great work to reduce them to the civility of Parliaments To which they had been long before accustomed and the Roll saith communi omnium de Hibernia consensu teneri statuit c. nor doth the division of the Irish-Shires seem so lately setled as some have thought although I may not dissent from the great Patron of Civill and Ecclesiastical Learning the late Primate of Ireland Touching that Irish Modus I have very little to add to the fourth part of the great Institutes in several places I shall now only observe that both these old Modi of Parliaments do agree in this Custom of the Kingdom that the King should require no Ayd but in full Parliament and in Writing to be delivered to each in degree Parliament And both they agree that every new difficult case of Peace and any war emergent within or without the Kingdom vel Guerre emergat in Regno vel extra ought to be written down in full Parliaments and therein to be debated which may be considered by all that will argue the Militia To which also we may add one clause of the Jewish Laws of their great Sanhedrim to whom they retain the power of Peace and War especially where it is Arbitrary and not meerly defensive in which the Law of nature maketh many Magistrates and this might with ease be confirmed from the Laws and Customs of all Civil Kingdoms in all ages But I must not wander from our English Laws I had almost forgotten that which should be well remembred Although many would perswade us to seek our Laws in the Custumier of Normandy it is not only affirmed in the Great Reports but also asserted by Guil de Rovell Alenconien and proved by divers Arguments in his Commentaries on that Grand Custumier that the Normans had their chief Laws from Hence As had also the Danes in the time of Canute for which we might have more proof and witness than the Abbot of Crowland So much even strangers did Love and Honour old English Laws Of King William the Second Sirnamed Rufus I shall speak but little for I must discuss his Election and Coronation Oath in a fitter place Some footsteps we find of his Parliaments in divers Wigornensis and Hoveden tell us that when he would have constrained the Scottish King ut secundum judicium Baronum suorum in curia sua Rectitudinem ei faceret Malcolm did refuse to do it but in the Confines or Marches Where he could not deny but the Kings of Scotland were accustomed rectitudinem facere regibus Angliae But he then said it ought to be by the Iudgement of the Parliaments of both Kingdoms secundum judicium utriusque Regni primatum And I find the like Record cited on Fortescue from Godfrey of Malmsbury But Huntingdon and Matthew Paris also relate that the same King Malcolm did submit both to do Homage and to swear Fealty to our English King and Paris addetth a pretty Story of King Malcolms overlooking Treason But again to King William Of his Errors in Government I shall only say that if Edom did really signified Red as hath been thought I could believe that all Historians speaking of Adamites then oppressing the People might allude to the near affinity between Edom and Rufus for Red. For this was his Sirname of King William the Second Henry the First is yet alive in his Laws and Charters Not only in Wendover with other Historians but among the Rolls and Records yet to be seen in the Exchequer They are now in Print
ab omnibus approbetur Which is one clause in the Writ of Summons to Parliament about a War with France in Edward the First Which seemeth to speak a necessity of Parliaments for matters of War Not only for Money as some have pleased to speak or at the Kings choice to call them if he please The Writ speaks an Act of Parliament Lex justissima provida circumspectione stabilita not let at loose to the Kings pleasure but as Fortescue or long before him the old Modus of Parliament maketh it necessary for the King and his Duty to Call a Parliament in all such Cases Nor shall I need to add what Paulus Iovius Froisard Comineus de Serres and the Duke of Rohan with many other strangers have observed of our Parliaments in this which is the Law of Nature rather than of England For as in the Heavens or great World we did before observe Mars or the Genius of War to be there placed immediately under Iupiter the great Councel and not under the Sun So in the Microcosm or little World of Man we find both Spleen and Gall within Hands and Feet without at a good distance from the Head and never joyned to it but in Monsters Yet it is true that some Creatures have Horns on their Heads but they are Beasts and not Men. Much less Kings I hope But did we Labour Toyl and Sweat so much to keep a little River in its bounds that so we might be drowned by the boundless Ocean Or be swept away at once by a destroying and devouring Deluge Did we scruple at a little Gravel or a Pebble that we might be crushed by a Mountain Would we strain at a Gnat that we might be choaked by a Camel or be swallowed whole by Behemoth It may not be at least it may not seem enough to quiet trembling minds to say or prove by arguments there shall be nothing done but what is just except we also see or know the way and means and usual course our Governours will please to take in doing that which may or is and ever shall I hope be just The way must be both Right and Clear as well as is the End And of the two Unjust and Arbitrary Power doth seem to be in Processe or in ways and means much rather than in Ends or Things that be effected by it Sure it was at least it might be good to build a gallant Fleet of Ships and so it might be just that each should contribute a part to such a publick work Nor was it only that which then was taken from us for a Ship that made us sigh and groan and cry or fear our Ruine or a universal deluge of Oppression But it much or mainly was we did not see the way or mean or Legal Process which the Court did take in Taxing or Assessing such a Place a County or a Person And it was but thus in Loans and so in divers if not all the things we so abhorred in the Crown the thing did not so much displease as did the way or means to such or such an End I need not say how curious or how scrupulous and tender still our Laws have been in pointing out the Way as well as End the Process in the Courts of Justice as the Final Iudgements So that indeed the very Form and Life and Power or Substance of the justest Laws doth much consist in Processe which by some may be thought a shadow or a Ceremony left at pleasure for a blustring Wind or any furious hand to shake as much as long as it shall please And then to salve it up by saying to the Root We mean you Good and do but lay you bare that so you may the more behold and more admire our Iustice in the End when all the Boughs and Branches shall be gone that do but hinder all your Prospect I must but Touch and glance There is a Trinity which all our Laws do seem to Worship here on Earth Estate Liberty and Life Of all Estate the Dower of Widows hath the greatest priviledge For which the Comments upon Littletons first and fifth with the Statutes of Merton and some clauses of the great Charter it self for Quarentine and Dower are good glosses on the Saxon Laws or those already touched and I shall not add one syllable All Estates have priviledge in Law and all Amercements must be such as may consist with mens Estate from Alfred Edgar Ethelred Canute or Edward it did come to Henry the first and thence to the Great Charter Where the Law is plain and clear No Free man shall be Amerced but according to his Default and Estate Salvo sibi Contenemento suo Which is so branched that it reacheth to Villains also though it speak at first but of Free-men Hence the Name of Amercement because it was and ought to be an Amerciament or a merciful Fine In which the Saxons went beyond us in their Weregylds and Divers Wytes for which Fleta may be a Comment to the Laws of Ethelstane and others of the Saxons All this for End but what must be the Way How shall it be imposed so that it may as it should be merciful 'T is miserecordiu Regis as the Laws and Books do speak but the King doth not may not Fine or Amerce any but in and by his Courts of Justice So that to render ones self to the Kings Judgment is to no effect and so adjudged For as the Father judgeth no man so the King who is or should be Father of the Country but he hath committed all judgment unto Men that are our Fellows Pares in the Courts of Justice VVhere indeed the King did sometime sit in Person yet the Court did Judge and not the King as Fortescue doth plainly tell us And the Judgment still is entred from and by the Court and not the King Ideo consideratum est per Curiam And so the great Charter saith we will not go upon him nec ibimus nec mittemus but by Legal Judgment of his Peers vel per Legem Terrae and of this last clause I never saw a fuller Comment in a few words than in Mr. Seldens Notes on Attaint in Fortescue But of all Iudgments to be made by Peers somewhat was said before in Henries Laws and more again ere long And for Fines by Courts of Justice not by the King and Amerciaments by Peers besides the Comments on Magna Charta there are divers Book Oases cited from Henry the fourth Henry the sixth Richard the third in the fourth part of Institutes Kings Bench To which may be added Greislies Case in the eighth part of Reports And the first of Westminster doth add to the great Charter or at least explain it in this But the Mirror will tell us it was an abuse not to expound it so largely before And although the VVrit de moderata misericordia in the Register and N. B. be founded on the Statute yet it seemeth clearly but
suites for them but not to sit as Judges For as the Commentator addeth they could not depute or make Attornies in a place and act judicial I will not I cannot say the Commons of England cannot choose or constitute their Judges but this I say or believe their delegates ought to be exceeding Curious I had almost said exceeding Scrupulous in making Judges and in bounding them to law and Justice both in way as well as End I must again repeat it That it may not seem enough to settle Judges just and wise and good Nor only to provide that they may do what is just I speak of end but men are men and ought in cases of such consequence to have their Way their Rule and Square by which they must proceed to be prescribed in their Patents or Commissions that they may do justly too as well as what is just To me it seemeth to be reason or the law of nature unto men that the Supreme Court should so limit all inferiours that it may not be left at large to their list or pleasure to condemn or sentence without Hearing Accusation Witness or without such Process and Tryal as shall be clear and plain and so prescribed in the Patent or Commission If it be not so done and expressed I know not what appeal can be but from the Court before Judgment For what appeal what writ of Error or what Plea can a man frame upon their Judgment who have no Rule no way of process prescribed and so cannot Err Transgress or Exceed their commission no not if they should without all accusation proof or witnesses condemn one to be sliced and fryed with exquisite tortures They are Judges but unlimited in way of Process infinite and purely Arbitrary No they are Men and so they must be Rational and Iust which was presupposed by them that gave so vast power They may be Iust indeed and so they should but yet no thanks for this to their Commission if it do not bound and limit out their way and manner of Process as it doth their work and Object or their End which was the wont of English Parliaments who were Just and wise themselves that they did see or fear it might be possible for their Committees to be most Unjust and Arbitrary if they were not most exactly limited Of all Commissions none were more curiously drawn and Pointed out by our Ancestors than those of especial Oyer and Terminer because the cases were not only heinous so they ought to be but such as for some extr ordinary cause emergent seemed to be as it were Extra Iudicial and such as could not stay and abide the usual process of the settled Courts of Justice Yet of these also did our Fathers take most especial care that they might be Iust in Way as well as End and that they might not be too High in Iustice for it seems that they had also learned an usual saying of the Antients Summum jus est injuria So that in divers of the Saxons Laws we find High Iustice Summum Ius to be as much forbidden as Injustice And I should tremble at it as an ill Omen to hear Authority commanded the the Kings Bench or any other Court should be now Stiled the Bench of High-Iustice For in Iustice the higher men goe up the worse or so at least it was esteemed by our Ancestors Their constant limitation was in every such Commission Thus and thus you shall proceed but still according to the Laws and Customs of England Secundum Legem Consuetudinem Angliae and no otherwise that is as Fortescu will say you shall be pittiful in Iustice and more merciful then all the world besides this Kingdom And if such a limitation were not expressed this was enough to prove the Commission Unjust and Illegal which is so well known to all Lawyers that I need not cite N. B. or the Register Commissions or Scrogs's case in Dyer or so many elder cases in Edward the 3 d. Henry the 4 th and almost all Kings Reigns Nay in King Iames among the great debates of Uniting Scotland to England when it was driven up so close that instead of Secundum Legem Consuetudinem Angliae it might be Secundum Legem Consuetudinem Brittanniae It was resolved by all Judges that there could not be that little change but of one word that doth so limit such Commissions but by consent of Parliament of both Kingdoms And in divers Parliaments of Ed. 1. Ed. 3. Hen. 4 th there were many Statutes made to limit all Commissions of Oyer and Terminer as that they must never be granted but before and to some of the Iudges of the Benches or of the Grand Eyre Nor those to be named by Parties but by the Court And with this usual Restriction according to the known clause of the Statute of Westminster the 2 d. in the Reign of Edward the 1 st But the Printed Statute must be compared with the Roll and with the 2 d of Ed. the 3 d. for else there may be in this as in other Printed Acts a great mistake by leaving out or changing one particle for that Clause except it be for heinous offence hath such influence into all the words before that by the known Common Law a Supersedeas doth lye to such Commissions quia non enormis Transgressio as the Register may teach us And although by Law there may be granted a Commission of Association with a Writ of Admittance of others to the Iudges assigned for Oyer and Terminer yet in all those Commissions and Writs the Rule must be prescribed quod ad Iustitiam pertinet and that also according to the Law and Custom of the Kingdom which is so much the Law of Nature that I need not wonder at the great Judg who in all his Institutes and so many Reports maketh those words absolutely necessary to the work of a Lawful Commission And for more prevention or Redress of injustice and Arbitrary Process were our Ancestors so punctual in requiring Records of all Proceedings in the Courts of Justice which is so agreable to Reason and the Law of Nature That the whole Parliament of England as I humbly conceive cannot it self proceed in matters of highest concernment but by Record Much less can it Licence other Courts to be without or above Record in such Affairs It is so well known to be the custom of the Kingdom that I shall not need to shew it in the Statute of York in Edw. 2d and many others in affirmance of the great Charter nisi per Legem Terrae But by the Law of the Land And in Edw. 3d. it was in full Parliament declared to be the Law of the Land that none should be put to answer but upon presentment before Iustices or matter of Record And the 2d of Westminster is very punctual in requiring Records for all legal exceptions as well as other matters and provideth that in case an Exception should not
tenens to the Sheriff and he standeth when the King dieth When also so many think there is no Sheriff but it may be more considered I must not stay in the Court of Peepoudres incident to every Fair or Market as a Court Baron to a Mannor although it be a Court of Record and a Writ of Error lyeth on its judgment for which Iones and Hall's Case in the 10th Part of Reports and in the 4th Institutes I need not speak of Writs of Error from the Common Pleas to the Kings Bench from the King's Bench to the Exchequer-Chamber and from thence as from the King's Bench also to the Parliament or of the known Statute of Henry the 6th making it Felony to steal withdraw or avoid Records or any parcel of Record But of no Records is the Law more punctual than in of extraordinary Cases of Oyer and Terminer which were more private oft and less fixed being transient on emergent Cases which yet being heinous seemed to require most exact Records especially because there might be Appeal so just and needful if the Judges exceeded but one tittle of their Commission If it were discontinued or expired then the Indictment and all Records were to meet in their proper Center at the King's Bench but in other Cases Records of Oyer and Terminer were sent into the Exchequer So in Edw. the 3d. As in Elizabeth Results on charitable uses and the like were to the Chancery by Act of Parliament The great Seal was the Soul to inform and actuate the Body of Records in all exemplifications from the Rolls in all Writs Pattents or Commissions and the rather also that by this nothing of moment might be hudled up but duly weighed and considered while it passed so many hands and judgments as it should before the Sealing Nor shall I add that an Act of Parliament it Self is not pleadable in a Court of Record but from Record or under the Seal whence the old custom was to remove the Records of Parliament by a Writ of Certiorari into the Chancery thence by the Lord Chancellor into the Kings Bench and thence by a Mittimus into the Common Plea and Exchequer with an usual Writ commanding all the Courts to keep and observe such Acts of Parliament which of Old were Proclaimed by the Sheriffs and were put under the Seal as we may see by the Proclamation now printed among the Statutes of Edw. the 3d. and they were not hudled into Print in those Days not of such vertue in Print as on Record and under the Seal For there were not then such Printers or Copiers that without much caution our fore-Fathers durst trust with all their Lives and Estates which by one dash of a Pen the change of a not a with a to a for or a from might be soon destroyed or enslaved Much less then should a Court of Record be Created but by Record yea and that be shewed under the Seal also For when the Seal was moulded our Ancestors ordained that no Jurisdiction should be grantable but under the Seal which should be known and obeyed by all the People as the Mirror discourseth at large In Edw. the 4th it was resolved by all the Judges in the Exchequer-Chamber that no man could be a Iudg or Iustice by Writ which was also Sealed but by open Pattent or a publick Commission But the Lord Chief Iustice of England hath of late no such Commission or Pattent yea a Sealed Writ and of Old he was also Created by Pattent till about the end of King Henry the 3d. if good Authors deceive me not It seemeth also somewhat disputable whether he were not included in the Statute of Henry the 8th for Commissions to the Judges by Letters Pattent under the Seal However the words are plain enough for Iustices of Eyre which of Old were also by Writ as those of Oyer and Terminer but now not to be but by Comission or Pattent under the Great Seal Which Commission should also be read and shewed in Court lest there be some kind of Demurrer or exception unto jurisdiction which hath been in some Cases at the Kings Bench and may be by Law to all now Judges by special Commission except it be produced under the Seal if the old Books deceive us not who do do not onely ascribe all jurisdiction to the Seal but in all legal exceptions ever admit of that to the Iudg if he be a Party or have not jurisdiction or be otherwise incompetent That the Parliament also will never Erect or Create any Court of Record but by Record and open Commission under the Great Seal I do the rather believe because the Seal is so proper and peculiar to the Parliament being made by common consent of which the Mirror and others at large and by such common consent used and committed to the special care of the Chancellor or Lord Keeper of England as he was called for keeping that which our Fathers esteemed as the Kingdoms Key or Clavis It is well known how King Henry the 3d. was brought to acknowledg That among all great Officers the Lord Keeper or Chancellor did especially belong to the Choice of the Parliament and Ralph Nevil among others refused to yield up the Seal to the King when it was demanded saying that he had received it by the Common Councel of the Kingdom and without their Warrant he would not deliver it of which both Matthew Paris and Matthew of Westminster From the continual use of this Seal in Parliament it is the Law and Custom of the Kingdom that the Lord Keeper shall have place in Parliament still to be there with the Sael although he be often no Peer and have no Vote but for making and Sealing of Charters Pattents Commissions and Writs framed by Parliament For although the Register made or continued by Parliament be now so full that there be little need yet the framing of New Writs was a great work of Old Parliaments as appeareth in the Books and Statutes as in that of Westminster the 2d de Casu consimili And as if the Parliament had made no Laws at all but onely New Writs the Old Modus brancheth out all the Laws of Parliament into Originals Iudicials and Executives which all know to he the Division of Writs Those especially de Cursu drawn by the Cursitors for Brevia Magistralia were let to be framed by the Masters of Chancery as appeareth at large in Bracton and Fleta and in the Oath of the Six Clerks or other Clerks of Chancery in Ed. 3 with that of Ed. 1. de casu continili in which Statute it is asol provided that if the Masters could not agree in framing such a new Writ they might if they saw cause respit the Parties till the next Parliament that so it might be formed by Advice of all the great Lawyers of the Kingdom Yet besides this of making and sealing of Writs there was another work and great use of the Masters of Chancery