possessor ab intestato for a debt which the dead ought me I must sue in the temporall court These two courtes the temporall and the spirituall be so diuided that who so euer sueth for any thing to Rome or in any spirituall court for that cause or action which may be pleaded in the temporall court of the Realme by an olde lawe of Englande hee falleth into a praemunire that is hee forsetteth all his goods to the Prince and his body to remaine in prison during the Princes pleasure and not that onely but the Iudge the scribe the procurer and assessor which receiueth and doth maintaine that vsurped pleading doth incur the same daunger Whether the word praemunire doeth betoken that the authoritie iurisdiction of the realme is prouided for before and defended by that lawe and therefore it hath that name praemunire or praemuniri or because that by that lawe such an attemture hath had warning giuen before to him of the daunger into which he falleth by such attempt and then praemunire is barbarously written for praemonere praemoneri as some men haue helde opinion I will not define the effect is as I haue declared and the lawe was first made in king Richarde the secondes time and is the remedie which is vsed when the spirituall iurisdiction will goe about to encroch any thing vpon the temporall courts Because this court or forme which is called curia christianitatis is yet taken as appeareth for an externe and forren court and differreth from the policie and manner of gouernment of the Realme and is an other court as appeareth by the act and writ of praemunire than curia regis aut reginae Yet at this present this court as well as others hath her force power authoritie rule and iurisdiction from the royall maiestie and the crowne of England from no other forren potentate or power vnder God which being granted as indéede it is true it may nowe appeare by some reason that the first statute of praemuniâ—e whereof I haue spoken hath nowe no place in Englande séeing there is no pleading alibi quam in curia regis ac reginae I haue declared summarily as it were in a chart or mappe or as Aristotle termeth it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the forme and manner of the gouernement of Englande and the policie thereof and sette before your eies the principall pointes wherein it doth differ from the policie or gouernment at this time vsed in Fraunce Italie Spaine Germanie and all other countries which doe followe the ciuill lawe of the Romanes compiled by Iustinian into his pandects and code not in that sort as Plato made his common wealth or Zenophon his kingdom of Persia nor as Syr Thomas More his Vtopia being feigned common wealths such as neuer was nor neuer shall be vaine imaginations phantasies of Philosophers to occupie the time and to exercise their wittes but so as Englande standeth and is gouerned at this day the xxviij of March Anno 1565. in the vij yeare of the raigne and administration thereof by the most vertuous and noble Quéene Elizabeth daughter to King Henrie the eight and in the one fiftéeth yéere of mine age when I was ambassador for her maiestie in the court of Fraunce the scepter whereof at that time the noble Prince and of great hope Charles Maximilian did holde hauing then raigned iiij yeares So that whether I writ true or not it is easie to be séene with eies as a man would say and felt with handes Wherfore this being as a proiect or table of a common wealth truely laide before you not fained by putting a case let vs compare it with common wealthes which be at this day in esse or doe remaine discribed in true histories especially in such pointes wherein the one differeth from the other to sée who hath taken the righter truer and more commodious way to gouerne the people aswell in warre as in peace This will be no illiberall occupation for him that is a Philosopher and hath a delight in disputing nor vnprofitable for him who hath to do hath good will to serue the Prince and the common wealth in giuing counsell for the better administration thereof Thomas Smyth FINIS Monarchia Aristocratiae Democratia Iust. Rex Tyrannus Populus Dictatorship Tyrannis Respublica Domus seu familia Prouining or propagation is when a maÌ„ layeth a braÌ„ch of a Vine or Osier or any other tree into the grouÌ„d so that it taketh roote of it selfe may liue though it be cut then from the first roote or stock Pagus Oppidum Ciuitas Nobilitas maior Eldest sonnes of dukes are not earles by birth but Lordes and take their place aboue earles and so are eldest sons in respect of barons Esquires of honour or Lordes Verè Lantzknechti lancearius a speareman Eques auratus The making of a knight Sire quasi Senior Alias Tribunitijs Sauing in appels and vpon a speciall plea. Actio is the parties whole suite breue is the kings precept But somtimes it is determined by the same court onely This shoulde be ment of a respondes ouster when the opinion is against him that taketh an exception which is not peremptorie He may denie it by protestation That is not order but abuse Courtisie and not dutie Hundreds were named of townes hils or other markes This is not alwaies and in al places obserued but onely concerning the graund enquest The vse of capias and exigent vpon inditementes is otherwise They are put to fines One or two Constables hedboroughes or tithingmen The deliuerie to the Bishops prison and the purgation is taken away by statute They must be two at the least that conspired Quere Or rather high stewaâ—â— of Englandâ— No more euidence on the behalfe of the plaintife but of the defendant there may The statute of 23. Henrie 8. doth not abolish common lawe but giueth a more profitable for the plaintife In appeale the battle is tryed by the parties onely and in writs of right by champions The battle or Iurie is at the election of the defendant Sent for by Sub poena Gardian in cheualry and gardian in Socage But the Lorde shalbe punished for the wast by losse of the ward or treble dammages if that suffice not She is no Ladie by the law although so called of courtisie It is auoidable after the husbandes death except it be for xxi yeares or three liues according to the statute or except they leuie a fine She shalbe endowed at y e discretion of the sherife except in few cases Litleton did not interpret the word feodu simply but rather define or describe the nature therof Litleton seene in the tongues as Sir Thomas Smith was in Litleton Which ought to be tride in the temporall court
DE REPVBLICA ANGLORVM The maner of Gouernement or policie of the Realme of England compiled by the Honorable man Thomas Smyth Doctor of the ciuil lawes Knight and principall Secretarie vnto the two most worthie Princes King Edwarde the sixt and Queene Elizabeth Seene and allowed AT LONDON Printed by Henrie Midleton for Gregorie Seton Anno Domini 1583. To the Reader TO conceale the graces inspired by God or the giftes ingraffed by nature or the vertues atchiued vnto our selues by industrie in all ages and of all wise men was accounted vnduetifulnesse vnkindnesse impietie vnto that common wealth in the which and vnto the which we are both bred and borne but to suppresse the worthie works of any author may iustly be iudged not only iniurie to the person but euen enuie at the whole world VVherefore chauncing vpon this short discourse compiled by the honorable knight sir Thomas Smyth and considering that the same could not but be a great light vnto the ignorant no lesse delight vnto the learned in the lawes and policie of sundrie regiments I thought it part of my dutie aswel for reuiuing of the fame of so notable a man as for the publike imparting of so pythie a treatise to present the same vnto thy indifferent and discreete iudgement VVherein although the errors rashness of Scribes appearing in the contrarietie corruption of coppies happening both by the length of time sithens the first making as also by the often transcripting might iustly haue been mine excuse or rather discourage yet weying the authoritie of the author togither with the grauitie of the matter I made no doubt but that the reuerence due vnto the one the recompence deserued by the other would easily counteruail all faults committed by a clarke writer And whereas some termes or other matters may seme to dissent from the vsual phrase of the cōmon lawes of this realme not withstanding to him that will consider that the profession of the maker was principally in the ciuil lawes and therefore not to be expected as one excellent in both also that the finishing of this worke was in Fraunce farre from his librarie and in an ambassad euen in the midst of waightie affaires it cannot nor ought not without great ingratitude be displesant or in any sort disliking VVherefore gentle Reader accept in good part my zeale and this honorable mans trauaile assuring thy self that the same framed by an expert workemaister and forged of pure and excellent mettall will not faile in proouing to be a right commodious instrument Vale. DE REPVBLICA ANGLORVM The maner of gouernement or policie of the REALME of ENGLANDE Of the diuersities of common wealthes or gouernement CHAP. I. THey that haue written heretofore of Common wealthes haue brought them into thrée most simple and speciall kindes or fashions of gouernement The first where one alone doth gouerne is called of the Gréekes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the second where the smaller number commonly called of them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the thirde where the multitude doth rule 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 To rule is vnderstoode to haue the highest and supreme authoritie of commaundement That part or member of the common wealth is saide to rule which doth controwle correct and direct all other members of the common wealth That part which doth rule define and commaund according to the forme of the gouernement is taken in euerie common wealth to be iust and lawe As a rule is alway to be vnderstoode to be straight and to which all workes be to be conformed and by it to be iudged I doe not meane the Lesbians rule which is conformed to the stone but the right rule whereby the Artificer and the Architect doe iudge the straightnesse of euerie mans worke he to be reckoned to make his worke perfectest who goeth néerest to the straightnesse What is iust or Lawe in euerie common wealth or gouernement CHAP. 2. NOw it doth appeare that it is profitable to euerie common wealth as it is to euery thing generally and particularly to be kept in her most perfect estate Then if that part which doth beare the rule doe commaund that which is profitable to it and the commaundement of that part which doeth rule on that sort is to be accepted in euery common wealth respectiuely to be iust as we haue said before it must néedes follow that the definition which Thrasimachus did make that to be iust which is the profite of the ruling and most strong part if it be meant of the Citie or common wealth is not so farre out of the way if it be ciuilly vnderstoode as Plato would make it But as there is profitable and likelyhoode of profite so there is right and likelyhoode of right And aswell may the ruling and Soueraigne part commaund that which is not his profite as the iust man may offend notwithstanding his iust and true meaning when he would amend that which is amisse and helpe the common wealth and doe good vnto it For in asmuch as he attempteth to doe contrarie to the Lawe which is alreadie put he therefore by the lawe is iustly to be condemned because his doing is contrarie to the lawe and the ordinaunce of that part which doth commaunde An other diuision of common wealthes CHAP. 3. BUt this matter yet taketh an other doubt for of these maner of rulinges by one by the fewer part by the multitude or greater number they which haue more methodically more distinctly and perfectly written vpon them doe make a subdiuision and diuiding eche into two make the one good and iust and the other euill and vniust as where one ruleth the one they call a king or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the other 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a tyrant where the fewer number the one they name a gouerning of the best men 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Remp. optimatum the other of the vsurping of a few Gentlemen or a few of the richer stronger sort 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Paucorum potestatem and where the multitude doth gouerne the one they call a common wealth by the generall name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the rule of the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the other the rule or the vsurping of the popular or rascall and viler sort because they be moe in number 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Example of chaunges in the maner of gouernment CHAP. 4. IN common wealthes which haue had long continuance the diuersities of times haue made all these maners of ruling or gouernemēt to be seene As in Rome kinges Romulus Numa Seruius tyrantes Tarquinius Sylla Caesar the rule of best men as in time when the first Consuls were and the vsurping of a few as of the Senators after the death of Tarquinius and before the succession of the Tribunate and manifestly in the Decemuirate but more perniciously in the Triumuirate of Caesar Crassus and Pompeius and afterwarde in the
dubbing of the prince knight or some such great occasion may be by the king compelled to take that order honour or to pay a fine which many not so desirous of honour as of riches had rather disburse Some who for causes ar not thought worthy of y e honor and yet haue abilitie neither be made knightes though they would and yet pay the fine Xl. l. sterling at that time when this order began maketh now Cxx. l. of currant mony of Englande as I haue more at large declared in my booke of the diuersitie of standardes or the valor of monies When the Romanes did write senatus populusque Romanus they seemed to make but two orders that is of the Senate and of the people of Rome and so in the name of people they contayned equites and plebem so when we in England do say the Lordes and the commons the knights esquires other gentlemen with citizens burgeses yeomen be accompted to make the commons In ordaining of lawes the senate of Lordes of England is one house where the Archbishoppes and Bishops also be and the king or Queene for the time being as chiefe the knightes and all the rest of the gentlemē citizens and burgeses which be admitted to consult vpon the greatest affaires of the Realme be in an other house by themselues and that is called the house of the commons as we shal more clearely describe whē we speake of the parliament Whereupon this worde knight is deriued and whether it do betoken no more but that which miles doth in latine which is a souldier might be moued as a question The word souldier now seemeth rather to come of sould and paymēt and more to betoken a waged or hyred man to fight than otherwise yet Caesar in his Commentaries called soldures in the tongue gallois men who deuoted swore themselues in a certaine band or othe one to another and to the captaine which order if the Almains did follow it may be that they who were not hyred but being of the nation vppon their owne charges and for their aduauncement and by such common oth or band that did follow the warres were possibly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 called knightes or milites and nowe among the Almaines some are called lanceknights as souldiers of their band not hyred although at this day they be for the most part hirelings Or peraduenture it may be that they which were next about the prince as his garde or seruauntes picked or chosen men out of the rest being called in the Almaine language knighten which is asmuch to say as seruantes these men being found of good seruice the word afterward was taken for an honor and for him who maketh profession of armes Our language is so chaunged that I dare make no iudgement thereof Now we call him knight in english that the french calleth cheualier and the lataine equitem or equestris ordinis And when any man is made a knight he kneeling downe is stroken of the prince with his sworde naked vppon the backe or shoulder the prince saying sus or sois chiualier au nom de Dieu and in times past they added S. George and at his arising the prince saith auauncèr This is the manner of dubbing of knights at this present and that terme dubbing was the olde terme in this point and not creation At the coronation of a king or queene there be knightes of the bath made with long and more curious ceremonies But howsoeuer one by dubbed or made a knight his wife is by and by called a Ladie as well as a barons wife he himselfe is not called Lorde but hath to his name in common appelation added this syllable Sir as if he before were named Thomas William Iohn or Richard afterward he is alwayes called Sir Thomas Sir William Sir Iohn Sir Richard and that is the title which men giue to knightes in England This may suffice at this time to declare the order of knighthood yet there is an other order of knightes in England which be called the knightes of the garter King Edward the third after he had obtained many notable victories King Iohn of Fraunce King Iames of Scotland being both prisoners in the tower of London at one time and king Henrie of Castell the bastard expulsed out of his realme and Don Petro restored vnto it by the prince of Wales and Duke of Aquitaine called the blacke prince inuented a societie of honour and made a choice out of his owne realme and dominions and all Christendom and the best and most excellent renoumed persons in vertues and honour he did adorne with that title to be knightes of his order gaue them a garter decked with golde pearle and precious stones with the buckle of gold to weare daily on the left legge onely a kirtle gowne cloke chaperon collar and other august and magnificall apparell both of stuffe and fashion exquisite heroicall to weare at high feastes as to so high and princely an order was meete of which order he and his succesors Kinges and Queenes of England to be the soueraigne and the rest by certaine statutes and lawes among themselues be taken as brethren and fellowes in that order to the number of xxvi But because this is rather an ornament of the realme than any policie or gouernment thereof I leaue to speake any further of it Of Esquiers CHAP. 19. EScuier or esquier which we call commonly squire is a French worde and betokeneth Scutigerum or Armigerum and be all those which beare armes as we call them or armories as they terme them in French which to beare is a testimonie of the nobilitie or race from whence they do come These be taken for no distinct order of the common wealth but do goe with the residue of the gentlemen saue that as I take it they be those who beare armes testimonies as I haue saide of their race and therefore haue neither creation nor dubbing or else they were at the first costerels or the bearers of the armes of Lordes or knightes and by that had their name for a dignitie and honour giuen to distinguish them from a common souldier called in latine Gregarius miles Of Gentlemen CHAP. 20. GEntlemen be those whom their blood and race doth make noble and knowne 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greeke the Lataines call them all Nobiles as the French Nobles 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Nobilitas in Latine is defined honour or title giuen for that the auncestor hath bin notable in riches or vertues or in fewer wordes old riches or prowes remaining in one stock Which if the successors do kéepe and follow they be verè nobiles and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 if they doe not yet the same and wealth of their auncestors serue to couer thē so long as it can as a thing once gilted though it be copper within till the gilt be worne away This hath his reason for the Etimologie of the name
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
of families together within themselues how to demeane and order their matters best for the conseruation of themselues and ech of their families generally and particularly Thus a few being heades and the chiefe of their families equall in birth and nobilitie and not much different in riches gouerned their owne houses and the descendentes of them particularly and consulted in common vpon publike causes agreeing also vpon certaine lawes and orders to be kept amongst them So the best chiefest and sagest did rule and thother part had no cause to striue with them nor had no cause nor apparance to compare with anie of them neither for age nor discretion nor for riches or nobilitie The rulers sought ech to keepe and maintaine their posteritie as their sonnes and nephewes and such as shoulde succeede them and carie their names when they were deade and so render them being mortall by nature immortall by their fame and succession of posteritie hauing most earnest care to maintaine still this their cousinage and common familie aswell against forraigne and barbarous nations which were not of their progenie tongue or religion as against wilde and sanage beasts This seemeth the naturall sourse and beginning or image of that rule of the fewer number which is called of the Greekes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and of the Latines optimatum respublica The first originall or beginning of the rule of the multitude called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 CHAP. 14. NOw as time bringeth an ende of all thinges these brethren being all dead and their offpring encreasing daily to a great multitude and the reuerence due to the old fathers in such and so great number of equals fayling by the reason of the death or doting of the Elders eche owing their merites of education apart to their fathers and grandfathers and so many arising and such equalitie among them it was not possible that they should be content to be gouerned by a fewe For two thinges being such as for the which men in society and league do most striue that is honour and profitte no man of free courage can be contented to be neglected therein so that they were faine of necessitie to come to that that the more part should beare the price away in election of magistrates and rulers So that either by course or by lot ech man in turne might be receaued to beare rule and haue his part of the honour and if any were of the profit which came by administration of the common wealth For whosoeuer came of that old great grandfathers race he accompted him selfe as good of birth as any other For seruice to the coÌ„mon wealth all or such a number had done it as they coulde not be accompted few And if a few would take vpon them to vsurpe ouer the rest the rest conspiring together would soone be master ouer them and ruinate them wholly Whereupon necessarily it came to passe that the common wealth must turne and alter as before from one to a few so now from a few to many and the most part ech of these yet willing to saue the politicke bodie to conserue the authoritie of their nation to defende themselues against all other their strife being onely for empire and rule and who shoulde doe best for common wealth whereof they would haue experience made by bearing office and being magistrates This I take for the first and naturall beginning of the rule of the multitude which the Greekes called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Latines some Republica by the generall name some populi potestas some census potestas I cannot tell howe latinely That the common wealth or policie must be according to the nature of the people CHAP. 15. BY this processe and discourse it doth appeare that the mutations changes of fashions of gouernement in common wealthes be naturall do not alwayes come of ambitioÌ„ or malice And that according to the nature of the people so the commoÌ„ wealth is to it sit proper And as all these iii. kindes of common wealthes are naturall so when to ech partie or espece and kinde of the people that is applied which best agreeth like a garmeÌ„t to the bodie or shoe to the foote then the bodie politique is in quiet findeth ease pleasure and profit But if a contrary forme be giuen to a contrary maner of people as when the shoe is too litle or too great for the foote it doth hurt and encomber the conuenient vse thereof so the free people of nature tyrannized or ruled by one against their willes were he neuer so good either faile of corage and were seruile or neuer rest vntill they either destroie their king and them that would subdue them or be destroyed themselues And againe another sort there is which without being ruled by onâ—e prince but set at libertie cannot tell what they shoulde doe but either through insolencie pride and idlenes will fall to robbery and all mischiefe and to scatter and dissolue themselues or with foolish ambition and priuate strife consume one another and bring themselues to nothing Of both these two we haue histories enough to beare witnesse as the Greekes Romanes Samnites Danes Uandals and others Yet must you not thinke that al common wealthes administrations and rulinges began on this sort by prouining or propagation as is before written but many times after a great battle and long war the captaine who led a multitude of people gathered peraduenture of diuerse nations languages liking y e place which he hath by force conquered tarieth there beginneth a common wealth after this maner for the most part a kingdome As the Gothes Lumbardes in Italie the Frenchmen in Gaule the Sarasins in Spaine and part of Fraunce the Saxons in great Brittaine which is nowe called Englande of which when that one and chiefe prince is dead the nobler sort consult among themselues and either choose an other head and king or diuide it into more heads rulers so did the Lumbards in Italie and the Saxons in England or take at the first a common rule popular estate as the Zwisers did in their cantous do yet at this day or else admit the rule of a certaine fewe excluding the multitude and communaltie as the Paduans Veronenses and Venetians haue accustomed The diuision of the parts and persons of the common wealth CHAP. 16. TO make all thinges yet cleare before as we shal go there ariseth another diuision of the partes of the common wealth For it is not enough to say that it consisteth of a multitude of houses families which make stretes villages the multitude of the stretes villages make townes and the multitude of townes the realme that freemen be coÌ„sidered only in this behalf as subiects citizeÌ„s of the coÌ„monwealth not bondmen who can beare no rule nor iurisdiction ouer freemen as they who be taken but as instruments the goods and possessions of others In which consideration
also we do reiect women as those whom nature hath made to keepe home and to nourish their familie and children and not to medle with matters abroade nor to beare office in a citie or common wealth no more than children and infantes except it be in such cases as the authoritie is annexed to the blood and progenie as the crowne a dutchie or an erledome for there the blood is respected not the age nor y e sexe Whereby an absolute Quéene an absolute Dutches or Countesse those I call absolute which haue the name not by being maried to a king duke or erle but by being the true right next successors in the dignitie and vpon whom by right of the blood that title is descended These I say haue the same authoritie although they be women or children in that kingdome dutchie or earledome as they shoulde haue had if they had bin men of full age For the right and honour of the blood and the quietnes and suertie of the realme is more to be considered than either the tender age as yet impotent to rule or the sexe not accustomed otherwise to intermeddle with publicke affaires being by common intendment vnderstood that such personages neuer do lacke the counsell of such graue and discreete men as be able to supplie all other defectes This as I sayde is not enough But the diuision of these which be participant of the common wealth is one way of them that beare office the other of them that beare none the first are called magistrates the second priuate men Another the like was among the Romanes of Partricij plebei thone striuing with thother a long time the patricij many yeares excluding the plebes from bearing rule vntill at last all magistrates were made cōmon betweene thē yet was there another diuision of the Romanes into senatores equites and plebs the Greekes had also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Frēch haue also at this day les nobles la populare or gentils homes villaines we in England diuide our men commonly into foure fortes gentlemen citizens and yeomen artificers and laborers Of gentlemen the first and chiefe are the king the prince dukes marquises earles vicountes barrons and these are called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the nobility and all these are called Lords and noblemen next to these be knights esquiers and simple gentlemen Of the first part of gentlemen of englande called Nobilitas maior CHAP. 17. DUkes marquises erles vicountes and barrons either be created by the prince or come to that honor by being the eldest sonnes as highest next in succession to their parentes For the eldest of dukes sonnes during his fathers lyfe is called an earle an earles sonne is called by the name of a vicount or baron or else according as the creation is The creation I cal the first donation and condition of the honour giuen by the prince for good seruice done by him and aduauncement that the prince will bestowe vpon him which with the title of that honour is commonly but not alwayes giuen to him and to his heires males only the rest of the sonnes of the nobilitie by the rigor of the lawe be but esquiers yet in common speeche all dukes and marquises sonnes and the eldest sonne of an earle be called Lordes The which name commonly doth agree to none of lower degree than barrons excepting such onely as be thereunto by some speciall office called The barrony or degree of Lordes doth answere to the dignitie of the Senators of Rome and the title of our nobilitie to their patricij when patricij did betoken senatores aut senatorum filios Census senatorius was in Rome at diuerse times diuerse and in Englande no man is created barron excepte he may dispend of yearly reuenue one thousand poundes or one thousand markes at the least Vicountes earles marquises and dukes more according to the proportion of the degree and honour but though by chaunce he or his sonne haue lesse he keepeth his degree but if they decay by excesse and be not able to maintaine the honour as senatores Romani were amoti senatu so sometimes they are not admitted to the vpper house in the parliament although they keepe the name of Lorde still Of the second sort of gentlemē which may be called Nobilitas minor first of knightes CHAP. 18. NO man is a knight by succession not the king or prince And the name of prince in england 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 betokeneth the kinges eldest sonne or prince of wales although the king himselfe his eldest sonne and all dukes be called by generall name princes But as in Fraunce the kinges eldest sonne hath the title of the daulphine and he or the next heire apparant to the crowne is monsire so in Englande the kinges eldest sonne is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the prince Knightes therefore be not borne but made either before the battle to encourage them the more to aduenture their liues or after the conflict as aduauncement for their hardinesse and manhood alreadie shewed or out of the warre for some great seruice done or some good hope through the vertues which do appeare in them And they are made either by the king himselfe or by his commission and royall authoritie giuen for the same purpose or by his liuetenaunt in the warres who hath his royall and absolute power committed to him for that time And that order seemeth to aunswere in part to that which the Romanes called Equites Romanos differing in some pointes and agreeing in other as their commō wealth and ours do differ and agree for neuer in all pointes one common wealth doth agree with an other no nor long time any one common wealth with it selfe For al chaungeth continually to more or lesse and still to diuerse diuerse orders as the diuersity of times do present occasion and the mutabilitie of mens wittes doth inuent and assay new wayes to reforme and amende that werein they do finde fault Equites Romani were chosen ex censu y e is according to their substance and riches So be knightes in England most commonly according to the yearely reuenew of their landes being able to maintaine that estate yet all they that had Equestrem censum non legebantur equites No more are all made knightes in Englande that may dispende a knightes land or fee but they onely whom the king wil so honour The number of Equites was vncertaine and so it is of knightes at the pleasure of the prince Equites Romani had equum publicum The knightes of England haue not so but finde their own horse themselues in peace time and most vsually in warres Census equester was among the Romanes at dinerse times of diuerse valew but in England whosoeuer may dispende of his free landes 40. l. sterling of yearely reuenue by an olde law of Englande either at the coronatiō of the king or mariage of his daughter or at the
serueth thefficacie of the worde Gens in Latine betokeneth the race and sirname so the Romaines had Cornelios Sergios Appios Fabios AEmilios Pisones Iulio Brutos Valerios of which who were Agnati and therefore kept the name were also Gentiles and remaining the memorie of the glorie of their progenitors fame were gentlemē of that or that race This matter made a great strife among the Romanes when those which were Noui homines were more allowed for their vertues new and newly showen than the olde smell of auncient race newly defaced by the cowardise and euill life of their nephewes and discendauntes could make the other to be Thus the Cicerones Catones and Marij had much adoe with those auncients and therefore said Iuuenalis Malo pater tibi sit Tersites dummodo tu sis AEacidi similis vulcaniaque arma capessas Quà m te Thersiti similem producat Achilles But as other common wealthes were faine to doe so must all princes necessarily followe that is where vertue is to honour it and although vertue of auncient race be earlier to be obtained aswell by the example of the progenitors which encourageth as also through habilitie of education and bringing vp which enableth and the lastly enraced loue of tenāts neybors to such noblemen and gentlemen of whom they holde and by whom they doe dwell which pricketh forward to ensue in their fathers steps So it all this doe faile as it were great pitie it should yet such is the nature of all humaine thinges and so the world is subiect to mutability that it doth many times faile but whē it doth the prince and common wealth haue the same power that their predecessors had and as the husbandmā hath to plant a new tree where the olde fayleth so hath the prince to honour vertue where he doth finde it to make gentlemen esquiers knights barons earles marquises dukes where he seeth vertue able to beare that honour or merits and deserues it so it hath alwayes bin vsed among vs. But ordinarily the king doth only make knights and create barons or higher degrees for as for gentlemen they be made good cheape in England For whosoeuer studieth the lawes of the realme who studieth in the vniuersities who professed liberall sciences and to be shorte who can liue idly and without manuall labour and will beare the port charge and countenaunce of a gentleman he shall be called master for that is the title which men giue to esquires and other gentlemen and shall be taken for a gentleman for true it is with vs as is saide Tanti eris alijs quanti tibi feceris and if neede be a king of Heraulds shal also give him for mony armes newly made and inuented the title whereof shall pretende to haue beene found by the said Herauld in perusing and viewing of olde registers where his auncestors in times past had bin recorded to beare the same Or if he wil do it more truely and of better faith he will write that for the merittes of that man and certaine qualities which he doth see in him and for sundrie noble actes which he hath perfourmed he by the authoritie which he hath as king of Heraldes armes giveth to him and his heires these and these armes which being done I thinke he may be called a squire for he beareth ever after those armes Such men are called sometime in scorne gentlemen of the first head VVhether the maner of England in making gentlemen so easily is to be allowed CHAP. 21. A Man may make doubt question whether this maner of making gentlemen is to be allowed or no for my part I am of that opinion y e it is not amisse For first the prince looseth nothing by it as he shoulde doe it it were as in Fraunce for the yeomen or husbandmā is no more subiect to taile or taxe in Englande than the gentleman no in every payment to the king the gentleman is more charged which he beareth the gladlier and dareth not gainesaie for to save and keepe his honour and reputation In any shew or muster or other particular charge of the towne where he is he must open his purse wider and augment his portion above others or else he doth diminish his reputation As for their outward shew a gentleman if he wil be so accompted must go like a gentleman a yeoman like a yeoman and a rascall like a rascall and if he be called to the warres he must and will whatsoever it cost him array himselfe and arme him according to the vocation which he pretendeth he must shew also a more manly corage tokens of better education higher stomacke and bountifuller liberallitie than others and keepe aboute him idle seruauntes who shall doe nothing but waite vpon him So that no man hath hurt by it but he himselfe who hereby perchance will beare a bigger saile than he is able to maintaine For as touching the policie and goverment of the common wealth it is not those that haue to do with it which will magnifie them selves and goe in higher buskins than their estate will beare but they which are to be appointed are persons tryed and well knowen as shall be declared hereafter Of Citizens and Burgesses CHAP. 22. NExt to gentlemen be appointed citizens and burgesses such as not onely be free and receiued as officers within the cities but also be of some substance to beare the charges But these citizens and burgesses be to serve the common wealth in their cities burrowes or incorporate townes where they dwell Generally in the thyres they be of none accompt saue onely in the common assembly of the realme to make lawes which is called the Parliament The aunciet cities appoint iiii and ech burrough ii to haue voices in it and to giue their consent or dissent in the name of the citie or burrough for which they be appointed Of Yeomen CHAP. 23. THose whom we call yeomen next vnto the nobilitie knightes and squires haue the greatest charge and doings in the common wealth or rather are more trauailed to serue in it than all the rest as shall appeare hereafter I call him a yeoman whom our lawes doe call Legalem hominem a worde familiar in writtes and enquestes which is a fréeman borne English and may dispend of his owne frée lande in yearly reuenue to the summe of xl s. sterling This maketh if the iust value were taken now to the proportion of monies vt l. of our currant mony at this present This sort of people confesse themselves to be no gentlemen but giue the honour to al which be or take vpon them to be gentlemen and yet they haue a certaine preheminence and more estimation than laborers and artificers and commonly liue welthilie kéepe good houses do their businesse trauaile to acquire riches these be for the most part fermors vnto gentlemen which with grasing frequenting of markettes and kéeping seruauntes not idle as the gentleman doth but such as get
both their owne liuing and parte of their maisters by these meanes doe come to such wealth that they are able and daily doe buy the landes of vnthriftie gentlemen and after setting their sonnes to the schoole at the Uniuersities to the lawe of the Realme or otherwise leauing them sufficient landes whereon they may liue without labour doe make their saide sonnes by those meanes gentlemen These be not called masters for that as I saide pertaineth to gentlemen onely But to their surnames men adde goodman as if the Surname be Luter Finch White Browne they are called goodman Luter goodman White goodman Finch goodman Browne amongest their neighbours I meane not in matters of importance or in lawe But in matters of lawe and for distinction if one were a knight they would write him for example sake sir Iohn Finch knight so if he be an esquier Iohn Finch esquier or gentleman if he be no gentleman Iohn Finch yeoman For amongest the gentlemen they which claime no higher degrée and yet be to be exempted out of the number of the lowest sort thereof be written esquiers So amongest the husbandmen labourers lowest and rascall sort of the people such as be exempted out of the number of the rascabilitie of the popular bee called and written yeomen as in the degrée next vnto gentlemen These are they which olde Cato calleth Aratores and optimos ciues in Republica and such as of whom the writers of cōmon wealthes praise to haue manie in it Aristoteles namely reciteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 these tende their owne businesse come not to meddle in publike matters and iudgements but when they are called and gladde when they are delivered thereof are obedient to the gentlemen and rulers and in warre can abide trauaile and labour as men vsed to it yet within it soone at an ende that they might come home liue of their owne When they are foorth they fight for their Lordes of whom they hold their landes for their wiues and children for their countrey and nation for praise and honour against they come home and to haue the loue of their Lorde and his children to be continued towardes them and their children which have aduentured their liues to and with him and his These are they which in the old world gat that honour to Englande not that either for witte conduction or for power they are or were euer to be compared to the gentlemen but because they be so manie in number so obedient at the Lordes call so strong of bodie so heard to endure paine so couragious to aduenture with their Lorde or Captaine going with or before them for else they be not hastie nor neuer were as making no prosession of knowledge of warre These were the good archers in times past and the stable troupe of footemen that affaide all France that would rather die all than once abandon the knight or gentleman their Captaine who at those daies commonly was their Lorde and whose tenauntes they were readie besides perpetuall shame to be in danger of vndoing of them selues all theirs if they should showe any signe of cowardise or abandon the Lorde Knight or Gentlemen of whom they helde their liuing And this they haue amongest them from their forefathers tolde one to an other The gentlemen of France and the yeoman of Englande are renowned because in battle of horsemen Fraunce was many times too good for vs as we againe alway for them on foote And gentlemen for the most part be men at armes and horsemen and yeomen commonlie on foote howesoeuer it was yet the gentlemen had alwaies the conduction of the yeomen and as their captaines were either a foote or vppon a little nagge with them and the Kinges of Englande in foughten battles remaining alwaies among the footemen as the French Kinges amongst their horsemen Each Prince therby as a man may gesse did shew where he thought his strength did consist What a yeoman is I haue declared but from whence the worde is deriued it is hard to say it cannot be thought that yeomen should be said a young man for commonly wee doe not call any a yeoman till he be married and haue children and as it were haue authoritie among his neighbours Yonker in lowe dutch betokeneth a meane gentleman or a gay fellowe Possible our yeomen not beeing so bolde as to name themselues gentlemen when they came home were content when they had heard by frequentation with lowe dutchmen of some small gentleman but yet that would be counted so to be called amongest them yonker man the calling so in warres by mockage or in sport thone an other when they come home yonker man and so yeoman which worde now signifieth among vs a man well at ease and hauing honestlie to liue and yet not a gentleman whatsoeuer that worde yonker man yonke man or yeoman doth more or lesse signifie to the dutch men Of the fourth sort of men which doe not rule CHAP. 24. THe fourth sort or classe amongest vs is of those which the olde Romans called capite censij proletarij or operae day labourers poore husbandmen yea marcantes or retailers which haue no frée lande copiholders and all artificers as Taylers Shoomakers Carpenters Brickemakers Bricklayers Masons c. These haue no voice nor authoritie in our common wealth and no account is made of them but onelie to be ruled not to rule other and yet they be not altogether neglected For in cities and corporate townes for default of yeomen enquests and Iuries are impaneled of such manner of people And in villages they be commonly made Churchwardens alecunners and manie times Constables which office toucheth more the common wealth and at the first was not imployed vppon such lowe and base persons Wherefore generally to speake of the common wealth or policie of Englande it is gouerned administred manured by thrée sortes of persons the Prince Monarch and head gouerner which is called the king or if the crowne fall to a woman the Quéene absolute as I haue héeretofore saide In whose name and by whose authoritie all things are administred The gentlemen which be diuided into two partes the Baronie or estate of Lordes conteyning barons and all that bee aboue the degrée of a baron as I haue declared before and those which be no Lords as Knightes Esquires and simplely gentlemen The thirde and last sorte of persons is named the yeomanrie each of these hath his part and administration in indgementes corrections of defaultes in election of offices in appointing and collection of tributes and subsidies or in making lawes as shall appeare héereafter THE SECOND booke Of the Parliament and the authoritie thereof CHAP. 1. THe most high and absolute power of the realme of Englande consisteth in the Parliament For as in warre where the king himselfe in person the nobilitie the rest of the gentilitie and the yeomanrie are is y e force and power of Englande so in peace consultation where the Prince is
to giue life and the last and highest commaundement the Baronie for the nobilitie and higher the knightes esquiers gentlemen and commons for the lower part of the common wealth the bishoppes for the clergie bee present to aduertise consult and shew what is good and necessarie for the common wealth and to consult together and vpon mature deliberation euerie bill or lawe being thrise reade and disputed vppon in either house the other two partes first each a part and after the Prince himselfe in presence of both the parties doeth consent vnto and alloweth That is the Princes and whole realmes déede whereupon iustlie no man can complaine but must accommodate himselfe to finde it good and obey it That which is doone by this consent is called firme stable and sanctum and is taken for lawe The Parliament abrogateth olde lawes maketh newe giueth orders for thinges past and for thinges héereafter to be followed changeth rightes and possessions of priuate men legittimateth bastards establisheth formes of religion altereth weightes and measures giueth formes of succession to the crowne defineth of doubtfull rightes whereof is no lawe alreadie mads appointeth subsidies tailes taxes and impositions giueth most frée pardons and absolutions restoreth in bloud and name as the highest court condemneth or absolueth them whom the Prince will put to that triall And to be short all that euer the people of Rome might do either in Centuriatis comitijs or tributis the same may be doone by the parliament of Englande which representeth hath the power of the whole realme both the head and the bodie For euerie Englishman is entended to bee there present either in person or by procuration and attornies of what preheminence state dignitie or qualitie soeuer he be from the Prince be he King or Quéene to the lowest person of Englande And the consent of the Parliament is taken to be euerie mans consent The forme of holding the parliament CHAP. 2. THe Prince sendeth forth his rescripts or writtes to euery duke marques baron and euery other Lorde temporall or spirituall who hath voice in the parliament to be at his great counsell of Parliament such a day the space from the date of the writ is commonly at the least fortie dayes he sendeth also writtes to the Sherifes of euery shyre to admonish the whole shire to choose two knightes of the parliament in the name of the shyre to heare and reason and to giue their aduise and consent in the name of the shyre and to be present at that day likewise to euery citie and towne which of ancientie hath bin wont to finde burgesses of the parliament so to make election that they might be present there at the first day of the parliament The knightes of the shyre be chosen by all the gentlemen and yeomen of the shyre present at the day assigned for the election the voice of any absent can be counted for none Yeomen I call here as before that may dispende at the least xl s. of yearely rent of free lande of his owne These meeting at one day the two who haue the more of their voices be chosen knightes of the shire for that parliament likewise by the pluralitie of the voyces of the citizens and burgesses be the burgesses elected The first day of the parliament the Prince and all the Lordes in their robes of parliament do meete in the higher house where after prayers made they that be present are written and they that be absent vpon sicknes or some other reasonable cause which the prince will allowe do constitute vnder their hande and seale some one of those who be present as their procurer or atturney to giue voice for them so that by presence or atturney proxey they be all there all the princes and barrons all archbishops and bishops and when abbots were so many abbots as had voice in parliament The place where the assembly is is richly tapessed and hanged a princely and royal throne as appertaineth to a king set in the middest of the higher place thereof Next vnder the prince sitteth the Chancellor who is the voyce and orator of the prince On the one side of that house or chamber sitteth the archbishops and bishops ech in his ranke on the other side the dukes and barons In the middest thereof vppon woolsackes sitteth the Iudges of the realme the master of the roules and the secretaries of estate But these that sit on the woolsacks haue no voice in the house but onely sit there to aunswere their knowledge in the law when they be asked if any doubt arise among the Lordes The secretaries to aunswere of such letters or thinges passed in counsell whereof they haue the custodie and knowledge and this is called the vpper house whose consent and dissent is giuen by ech man seuerally and by himselfe first for himselfe and then seuerally for so many as he hath letters and proxies when it commeth to the question saying onely content or not content without further reasoning or replying In this meane time the knights of the shires and burgesses of the parliament for so they are called that haue voice in parliamēt and are chosen as I haue said before to the number betwixt iii C. and iiii C. are called by such as it pleaseth the prince to appoint into another great house or chamber by name to which they aunswere and declaring for what shyre or towne they aunswere then they are willed to choose an able discreete man to be as it were the mouth of them all to speake for and in the name of them and to present him so chosen by them to the prince which done they comming al with him to a barre which is at the nether ende of the vpper house there he first praiseth the prince then maketh his excuse of vnabilitie and prayeth the prince that he would command the commons to choose another The chancellor in the princes name doth so much declare him able as he did declare himselfe vnable and thanketh the commons for choosing so wise discreete and eloquent a man and willeth them to go and consult of lawes for the cōmon wealth Then the speaker maketh certaine requests to the prince in the name of the commons first that his maiestie would be contēt that they may vse and enioy all their liberties and priuiledges that the common house was wont to enioy Secondly that they might franckely and freely saye their mindes in disputing of such matters as may come in question and that without offence to his Maiestie Thirdly that if any should chaunce of that lower house to offend or not to do or say as should become him or if any should offend any of them being called to that his highnes court That they thēselues might according to the ancient custome haue the punishment of them And fourthly that if there came any doubt whereupon they shal desire to haue thaduise or conference with his Maiestie or with any of the Lordes
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
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
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
haue no externe seruice wherewith to occupie their buisie heads handes accustomed to fight and quarell must néedes séeke quarels and contentions amongest themselues and become so readie to oppresse right among their neighbours as they were woont before with praise of manhoode to be in resisting iniurie offered by their enemies So that our nation vsed hereunto vpon that more insolent at home and not easie to be gouerned by Lawe and politike order men of power beginning many fraies and the stronger by factions and parties offering too much iuiurie to the weaker were occasions of making good Lawes First of reteiners that no man should haue aboue a number in his Liuerie or retinue then of the enquirie of routs and riots at euerie Sessions and of the lawe whereby it is prouided that if any by force or by riot enter vpon any possessions the Iustices of the peace shal assemble themselues remooue the force within certain time enquire thereof And further because such things are not commonlie done by meane men but by such as be of power force be not to be dealt withal of euerie man nor of meane Gentlemen if the riot be found certified to the Kings Counsell or if otherwise it be complained of the partie is sent for and he must appeare in this starre chamber where séeing except the presence of the Prince onely as it were the maiestie of the whole Realme before him being neuer so stoute he will be abashed and being called to aunswere as he must come of what degrée soeuer he be he shall be so charged with such grauitie with such reason remonstrance and of those chiefe personages of Englande one after an other handeling him on that sort that what courage soever he hath his heart will fall to the grounde and so much the more when if he make not his aunswere the better as seldome he can in so open violence he shalbe commaunded to the Fléete where he shall be kept in prison in such sort as these Iudges shall appoint him lie there till he be wearie aswell of the restraint of his libertie as of the great expences which he must there sustaine and for a time be forgotten whiles after long suite of his friendes he will be glad to be ordered by reason Sometime as his deserts be he payeth a great fine to the Prince besides great costs and dammages to the partie and yet the matter wherefore he attempteth this riot and violence is remitted to the common lawe For that is the effect of this Court to bridle such stoute noble men or Gentlemen which would offer wrong by force to any manner men and cannot be content to demaund or defend the right by order of lawe This court began long before but tooke great augmentation and authoritie at that time that Cardinall Wolsey Archebishop of Yorke was Chauncellor of Englande who of some was thought to haue first deuised y ◠Court because that he after some intermission by negligence of time augmented the authoritie of it which was at that time maruellous necessary to doe to represse the insolencie of the noble men and gentlemen of the North partes of Englande who being farre from the King and the seate of iustice made almost as it were an ordinarie warre among themselues and made their force their Lawe banding themselues with their tenaunts and seruauts to doe or reuenge iniurie one against an other as they listed This thing séemed not supportable to the noble prince King Henrie the eight and sending for them one after an other to his Court to aunswere before the persons before named after they had had remonstrance shewed them of their euill demeanor and béene well disciplined as well by words as by fléeting a while and thereby their purse and courage somwhat asswaged they began to range themselues in order and to vnderstand that they had a Prince who would rule his subiects by his lawes and obedience Sith that time this court hath béene in more estimation and is continued to this day in manner as I haue saide before Of the Courts of Wards and Liueries CHAP. 5. HE whom we call a ward in Englande is called in Latine pupillus and in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The gardian is called in Latine tutor in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A warde or infant is taken for a childe in base age whose father is dead The Romanes made two distinctions pupillum minorem the one to xiiii yere old the other was accounted from thence to xxv And as pupillus had tutorem so minor had curatorem til he came to the age of xxv These tutors or curators were accountable for the reuenues of the pupils minors lands great prouision and many lawes and orders is made for them in the bookes of the ciuil Lawe for rendering iust true accounts So that to be a gardian or tutor was accounted among them to be a charge or trouble a thing subiect to much encumbraunce and small profite so that diuerse meanes were sought for to excuse men from it With vs this is cleane contrarie for it is reckoned a profite to haue a warde For the Lorde of whom the warde doeth hold the land so soone as by the death of the father the childe falleth warde vnto him he seaseth vpon the body of the ward and his landes of which so that he doeth nourish the ward he taketh the profite without accounts and beside that offering to his ward couenable mariage without dispergement before the age of xxl. yeres if it be a man or xiiii if it be a woman If the ward refuse to take that mariage he or she must pay the value of the mariage which is commonly rated according to the profite of his landes All this while I speake of that which is called in French garde noble that is of such as holde lands of other by knight seruice for that is an other kinde of seruice which we call in Frenche gard returier we call it gard in socage that is of such as doe not holde by knight seruice but by tenure of the plough This wardship falleth to him who is next of the kinne and cannot inherite the land of the warde as the vncle by the mothers side if the land doe discend by the father and of the fathers side if the lande discend by the mother This gardian is accountable for the reuenues and profites of the land as the tutor by the ciuill Lawe to the warde or pupill so soone as he is of full age The man is not out of wardshippe by our lawe till xxj yere olde from thence he is reckoned of full age aswell as in the Romane lawes at xxv The woman at xiiij is out of warde for shée may haue an husband able to doe knightes seruice say our bookes And because our wiues be in the power as I shall tell you hereafter of their husbands it is no reason she should be in