The Lord Chancellours oath is thus That he shall doe right to all manner of people poore and rich according to the lawes and usages of the Realme s 10. R. 2. rot Parl. 8. The Barons of the Exchequer sweare no mans right to disturbe let or respite contrary to the lawes of the land t 4. Jnsti 109. which must be meant of the knowne and certain Law of the Land called in Magna Charta Legemterrae upon which all Commissions are grounded wherein is the clause to do what belongeth to Justice according to law and custome of England u 2. Jnsti 51. The illustrious Viscount of St Albane amongst his Aphorismes of universall Justice has this Let no Court deale in cases capitall our Lawes say Civill too but out of a knowne and certaine law God denounced death then he inflicted it nor is any mans life to be taken away who knew not first he had sinned against it w Augm. scient 402. By this Law of the Land although there is not nor cannot be any liberty which should protect the transgressors of it yet have all Offenders a legal tryall nor are possessours of the worst faith thrown out without the hand of the Law onely against those who attempt to subvert or weaken the Lawes there is a Writ to the Sheriffe in nature of a Commission to take the impugners and to bring them as the Register to the Gaole of Newgate x Regist 64 2. Justi 53. This as the Lord Cooke is lex terrae The Law of England to take a man without answer or summons in this case and the reason given is He that would subvert all Lawes deserves not the benefit of any Amongst the articles exhibited to King Henry the eight against Cardinall Wolsey he is charged with oppression in imprisoning Sir John Stanly and forcing him to release a farme taken by Covent Seale of the Abbot of Chester c. as the words by his power and might y Artic. 38. And that he threatned the Judges to make them deferre judgement z Artic. 39 that he granted many Injunctions the parties not called nor any bill put in by which diverse were cast out of their possessions of their Lands and Tenements a Artic. 21. The close was That by his cruelty iniquity and partiality he hath subverted the due course and order of the lawes His Inditement went higher and accused him That he intended the most ancient lawes of England wholly to subvert weaken and this whole Realme of England and the people of the same to the Lawes Imperiall commonly called the Civill Lawes and to their Canons for ever to subiugate c. b Mich. 21. H. 8. Coram Rege Now although the Civill Law deserves as much honour as can be given it and commands and is obeyed much abroad yet this Law of the Land held the possession here by a long unquestionable prescription and after the tryall of many ages got the affection of the people whose fathers grew up happily under it which was not easily to be removed the rather because seldome doth any Nation willingly submit to or welcome the Customes and Laws of another which they have not been acquainted with and our Judges who wil not in our Books part with one of its Maximes c 2. Jnst it 210. would not have fallen downe before the shrive of any unknown Themis and have offered up the whole tables It were no hard matter to heape up testimonies Vid chap. 3 if some would thinke it lawfull to trust men in their owne arts or professions and can it not but be more reasonable that such should be heard in the defensive then that those who professe full Hostilitie bringing with them onely mistakes of their owne prejudice should sit Judges of the tryal which is in their own cause and if thus far the reines be given to turbulent desperate spirits every thing how sacred soever may be arraigned at these tribunalls the articles of our faith will quickly totter nor will any principle be safe This discent will be fatall there being no stay in the precipice the bottome onely must receive men where he that falls is crushed to pieces what is worse those unhappy ones who follow cannot see their danger Thus we have seen what the common Law the Liberty and Franchise of the free people of England the law of the land is The law of antient time d. 27. E. 1. of old time used e 25. E. â— the old law f 42. E. 3. for ages according to the judgement of these Parliaments makes the law more venerable it is an addition of honour to it Now it followes in order to speake something of the Antiquity of this law The Antiquity of the Law But as the beginnings of things sometimes are rather guessed at then knowne it is no wonder that there should be no generall agreement here of opinions some will make the Law a Colossus of the Sun knocking the Starres with its head more ancient then the Dipthera or Evanders mother others a late small spark struck from the clashing of the Norman Swords the child rather of Bellona then Jove terrible in the Cradle the truth being mistaken by both To relye upon the authority of a Chancelour or rather chiefe Justice in the time of King Henry the sixth upon which the * r. 2. Epi. r. 6. Epist antiquity should be raised was lesse then that of Aventine who professed History where after a prodigious linke of German Kings before the Arcadian Moone he will needs bring his Dutch to the Wars of Troy which he proves out of the laws of Charles the 4. who lived lesse then two hundred yeare before Aventine and some three hundred yeares before us from which he is peremptory there must be no appeal g Boicar Hist 49. for a great Lawyer continually imployed in the publick affaires or in his study where his many volumes upon the law show the whole man might well be taken up to faile in a piece of History if he may justly be said to faile this way who onely trusted another who was carelesse It is no blemish such as can deserve the censorian rod of our Criticks besides all men love to consecrate their originalls This is allowed to antiquity saies Livie mixing things humane with divine to make the beginnings of Cities more majestick and we may say as he doth of his Rome of our Lawes if it be lawfull to canonize any to carry them up to Heaven or fetch them downe from thence that glory alone is due though it needs not to the most sacred lawes of the land Sir John Fortescue his words are to this effect That if the lawes of England had not bin most excellent the Romans who cry up their Civill Law Saxons Danes or Normans had altered them h de lg Ang l. c. 17. by which our Lawes must be Brittish at least and our
the givers name called the Lawes of Hael Dha Further King Edward the first who totally subdued Wales in the Statute called Statutum Walliae where he changes many of their old Lawes by his words there makes it cleare that the Lawes of England and of Wales could not be the same for so there had been no change The words are The Lawes and Customes of those parts hitherto used we have caused to be recited before us and the Barons of our Realme which having diligently heard and fully understood as it is fit were laws worse then those there should be full understanding ere a change certaine of them by the counsell of our Barons foresaid we have blotted out certain we have suffered and certaine corrected b Stat. Walliae or of Rutl. 22 E. 1. Perhaps it was not thought fit after a new Conquest to make a thorough alteration of things too suddenly yet was this a long Statute and much of the Law of England imposed upon them by it The 27. of King Henry the 8. swept all clean That commands that the Lawes Ordinances and Statutes of this Realme of England for ever and none othr Lawes O rdinances nor Statutes shall be had used practised and executed in the said Country and Dominion of Wales c. c 27 H. 8. c. 26. The Saxons as M. Daniel made such a subversion of State as is seldome seen the new retained nothing of the former which held no other memory but that of its dissolution scarce a City Dwelling River Hill or Mountain which changed not names The distance made by the rage of war was so wide between the conquering and the conquered people that nothing either of Laws Rites or Customes came to passe over unto us from the Britains nor had our Ancestors any thing from them but their Countrey d Hist 9. But the Author of the patches to the Lawes of St Edward though in Geoffrey of Monmouths strain goes full up to King Brute himself of Geofferies begetting speaking of the weekly Husting of London sayes he which was builded a long while agoe like and after the manner and in memory of old great Troy and to this day it containeth in it selfe the Lawes Rights Dignities Liberties and Royall Customes of old great Troy e Ll. S. Ed. c. 35. c. which like the Phoenix lives in its ashes and here such is the kindnesse of some of our quaint Authors has overcome Greece in the grave being more fruitfull in noble Colonies then her Enemy so that it must be a very faire discent where the pedigree is brought downe from old great Troy As of old the Greek Lawes so since the German Nations have overflowne Europe now are the German Institutions every where received and in force sayes Grotius f De jure belli c. 133. As the Lombards Burgundians Franks Swevians and Vandalls and other the brothers and kinsmen of the Saxons seated themselves in Italy France and Spain and spread their Lawes where they over-ran upon no other Title but that of the Sword so did the Jutes Angles and Saxons plant themselves and the customes of their first homes here first as friends and allies invited in by the British King Vortigen having lands dwelling places given them to fight for the Countrey they make a league with the Picts the publike enemies destroying those whom they were called in to protect in which manner they setled themselves leaving none of those amongst them but such as were content with slavery Their owne Countrey-man venerable Bede borne 227. yeares after their landing tells us comparing them to the Chaldeans whom I choose to refer him to who would know more g Bede hist l. 1. c. 15. p. 59. their Lawes and Language though themselves have suffered by their owne blood by their fellow Tribes the Danes and Normans some of those calamities which they made others feel where time and age and corruption gnawing to which all things are subject have not made a little change continue in the maine to this day These Nations so powred out of Germany retaining the rites and terms of their own Countries all of the same manners and tongue It commeth to passe as the most knowing h Gloss 435. Col. 1. knight that there is so much consonancy betwixt us and the Germans French Italians Spaniards and Sicilians both in the Canon of the ancient lawes and in the names of Magistrates Officers and Ministers of State therefore as he goes on Let them brag that will of the antiquity of their municipal lawes their beginnings can be had no where else Germany it is meant is the common mother The terms of art of some of these Nations got as far as Constantinople amongst the Greeks where we may finde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Captain from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a throng 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he that holds by knight service from buccella a morsel buccellarius is amongst the wise Goths of Spain thus used 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 homage 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is gelt rent tribute c. from the Saxon geld 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bill scedule c. and many more which Meursius in his Graeco barbara has collected the most ancient laws of al these people are the salic laws nay of all laws now compiled obtaining These and the Franks who made them were of Germany so named from the River Sala in Frankenland not from Franiker as Ortelius would have it They were made in the third yeer of Pharamond king of the Germane Franks 105 yeers before Justinian the Emperour who published the Imperial Laws The Author where he has no Latin puts in his Franko-Germanic of the Latin fashion As William of Oangis in the yeer 420 the Franks began to use Laws and did dictate their Laws by four Princes of their Nation sala signifies in the Dutch an Hall as with us or Palace whence are called law salic manners-salic vassals salic which belong to the sale Hall or Palace and as yet is to be seen the salic book Salbuch in the German libraries like our Doomesday or Liber Agrarius here says another who tells us there of the Salian Franks the Authors of this law named so from the former river seated on both sides of the Main upon which stands Francford the head of the Nation i Boioar. hist l. 4.313 of whom and this Law is said before what the best Authors write In the same Salic Law are many words used in ours as Campio Forresta Forrestarius Sparuarius Marcha Veragelt which is our were gild c. These Customes went with Pharamond eight yeers after into France then after those of the western Gothes in Spain the Burgundian Laws the lawes called Alemaaic Boian and Frank other then the Salic were instituted by Thierry the first son of â—lodove who first became Christian corrected by Clothaire and Childebert and perfected by Dagobert After follow the Lombards who as they were a
to be that there was no such overturning of things as is believed The Title of the Lawes called the Lawes of King William the first published by M. Selden with his learned Notes upon Eadmer and since with the Saxon Lawes is this These are the Lawes and Customes which William the King granted to the whole people of England after the Conquest of the Land these were those which the King Edward his Cousen beld before him In these Lawes recited by Hoveden in the life of King Henry the second ' King Edwards Lawes are confirmed in these words This we command That all men have and hold the Law of Edward the King in all things together with those Lawes which we have added for the profit of the English g Pars Poster 661. This Confirmation was not freely given but in this manner King William having heard the Lawes of the Danes and Normans and approved them as the Chronicle of Lichfield having approved the Lawes of those of Norfolke Suffolke Grantbridge and Deira c. he commanded they should be observed through the Kingdome as more just then any others because himselfe and his Barons were Norwegians by extraction not a word is there of any resolution to introduce his Norman Laws this the English thought a more killing blow then that of his Victory they beseech him and by the soule of King Edward c. to permit them to injoy their owne ancient Laws and Customes under which their Fathers lived themselves were borne and bred up to wit the Lawes of holy King Edward and they tell him it could not but be very hard to receive Lawes unknowne and to judge of those things they understood not h The Paraphrast of these Laws Chron. Lich. The King long resolute at last yeelds and as these with much authority were venerate and through the whole Realme corroborate and before other Lawes of the Realm the Lawes of King Edward not because he found them but because be restored them sayes Gemeticensis of the same age with King William i l c. 9. The Chronicle of Lichfield and Hoveden are more large with which agrees the first Chapter of the Lawes of good King Edward thus it speaks Which King William confirmed all of them use neer the same expressions By Precept of King William say they are elected out of every of the Counties of all England twelve of the most wise men who were injoyned before King William that in what they might neither declining to the right hand nor the left in a direct way they should lay open the Constitutions of their Laws and Customes nothing omitting nothing adding nothing out of prevarication changing k Hoved. 601 Chron. Lâ—ch ll Ed. c. â— Further yet in that Chronicle Aldred the Archbishop of Yorke not Thomas Archbishop of Canterbury as the Paraphrast would have it there being no Thomas of that See till lawlesse Beckets dayes who as this and Malmesbury crowned him l Malmsâ— l. 3. 〈◊〉 vita Pontific and Hugh Bishop of London by command of the king writ with their own hands what the foresaid jurates said from the laws of holy mother the Church beginning c. Ingulphus Secretary to William in Normandy and after made Abbot of Crowland by him is witnesse enough alone and as he I brought this time with me from London where he had been about the businesse of his house to my Monastery the laws of the most just king Edward which my Lord William the renowned king of England had proclaimed authentick and perpetual all England over to be kept under most grievous penalties commended to his Iustices in the same tongue they were set forth m Ingulph p. ult This proclamation was not all to allay the stormes which perhaps the violation of these laws had raised for the good of peace says an ancient Monk He swears upon all the reliques of the Church of S. Albane touching the hol Gospel Abot Fretherick ministring the Oath the good and approved ancient laws of the realm which the holy and pious Kings of England his ancestors and especially King Edward set forth inviolably to keep n Vita Ab. S. Aâ—b 8. s â—0 that the English laws were in use then I can prove out of that famous plea of Pinnendeâ—e betwixt Lanfranck Archbishop of Canterbury and Odo Bishop of Baieux and Earl of Kent there it is said the King comanded al the County without delay to sit all the French of the County especially the English in the antient laws customes skilled to assemble o Not. ad Eâ—d 198. William the 2. promises onely easie laws justice equity and mercy and laws desirable p Hunting l. 7.372 ead 13. Ma Par. 14 Heved in h. 1. which his successour Henry the first construes and there could be no other meaning to be meant of these laws he swears To take away all the injustices and oppressions of his brother promises the good and holy laws to keep and to strengthen the liberties and ancient customes which flourished in the realm in the time of S. Edward the King q Ead. 55. Malmsb. in Hen. 1.156 Ma. Pa. 55. and in his laws he says The law of King Edw. I grant you with those amendments made by my father with the counsel of his Barons r Ll. Hen 1. c. 2. Ma. Pa. 56. and in the same place those things which hence forward shall be done shall be amended secundum lagam according to the law of King Edward yet after he imposes a new law a medley out of the salick ripuarian and other forreign laws with some pieces out of King Cnuts Danish laws which were but a small time observed and could not take any thing from the lawes of King Edward king Stephen confirms the laws in these words all the liberties and good laws which Henry King of England my Vnkle granted them and I grant them all the good laws and good customes which they enjoyed in the reign of King Edward s Ex lib. autiqu Ll. The Londoners request of Maetildis the Empresse daughter of Hen. the 1. That they may be suffered to use the laws of Edward because as they they were the best and not the laws of her father Henry because they were grievous which she refused whence great commotions were made t Florent wig in an 11 42. cont which grievous laws certainly were that salic rapuarian Danish medly and likely enough a commotion in those boisterous times would follow the refusal many of the disquiets and tumults of those first reigns being raised upon the pretence of the breach of these laws a pretence so taking that the Noâ—mans themselves either coloured their insurrections with it or else preferred these before their own laws and ran the hazard of their lives fortune in earnest for them Henry the 2. commanded the laws of his Grandfather to be observed u Hov p. pricr in H. 2. of which below
Hovedens words this I will note here that Henry the second made Ranulphe of Glanville chief Justice of England by whose wisdome the laws underwritten were made which we call of England make no new law nor that chief Justice a law-maker they explain what is intended by the laws of Henry the first his Grandfather for the laws there underwritten w Hoved. pars pest 6â—0 are meerly King Edwards laws confirmed by William the first king Richard the first swears to keep the good laws c. x Paris in Rich 1. without saying of St. Edward which yet can be no other those as is shown had got the name those must be meant by the expression good lawes the kings before and after swore to keep them K. Iohn absolved from the Popes thunder though at his Coronation by that oath to destroy bad laws substitute the good to exercise right Justice he had sworn the same y Ma. Par. 197. is forced to swear that he will as there revoke or restore the good laws of his ancestors here the expression good lawes is interpreted and especially the lawes of king Edward z Id. 239. In the same place where king John commands that the lawes of his Grandfather Henry be kept this must be intended of the first laws of his great Grandfather Henry the seconds Grandfather so often mentioned in the controversie betwixt Henry the second and that Martyr of the Roman make without a cause disobedient unruly Becket a Hov. 492. in H. 2 called by that king as before his Grandfathers lawes I say his great Grandfather Henry the first before here recited where Henry the first grants lagam Edwardi regis the Law of king Edward A Charter of which Stephen the Archbishop of Canterbury produces in the very next page of Mat. Paris after the absolution which well might be produced several transcripts of that Charter being sent by Henry the first to be preserved in the Abbies of all the Counties and there tells the Barons of the kings promise which he forced him as he says at his absolution to make that was to take away all injust laws and the good and just laws to wit as he still the laws of king Edward to revoke for restore and cause to be observed by all in the realm And now as he goes on there is found a certain Charter of king Henry the first by which if ye will your lost liberties you may to the Antient state revoke the transcript agreed word for word with the Charter b Ma. Pa. hist 55.210 the great sticklers for the lost liberties for the good and just laws for St. Edwards laws are all of them Normans or Norman-French such as came in since Edward and being setled here for some generations now made a great part of the whole amongst which are Fitz-walter Marshal of the Hoste of God and of holy Church this was his stile in the succeeding wars Vescy Percy Ros de Bruis Stuteville as there Saerie of Quincy Earle of Winchester the Earle of Clare descended from the Norman Gislebert Bigod Vere Fitz-Warin Marshal Beauchamp Manduit Fitz Allen Mandeville * Estoteville Munhrey * Mowbrey Montfichet Munifichet Montacute de Gant Laval c c id 254. These when king John asked them what laws they would have answered not Sir We are the Norman Conquerours give us this people for a spoile a prey make them our villains but quite another thing they offer him a Scedule for the greatest part as this Monk containing the antient laws and customes of the realm the chapters of the laws and liberties says he which the great men the Barnage or Baronage as in other places he cals them sought to be confirmed were partly written above in the Charter of king Hen. partly taken out of the ancient laws of king Edward d id ibid. Alll which lawes with much adoe were confirmed by king John this Scedule is the same and everywhere agrees with our Magna Charta or grand Charter and that of the Forrest granted and confirmed by king Henry the third called then by this Author the long required liberties e id 323. or rather by the whole Clergy and Nobility who tel the king they would give him the fifteenth which he desired if he would grant them the long required liberties which says this Historian the king granted and presently Charters were writ one of the common liberties c. And strengthened with his seal and one sent into every County But says he the tenors of the Charters is had above more expresly for here he recites not a word of them So that as he still the Charters of both the kings are not not found in any thing unlike u 5. H. 3 l. 1. Mort. dancest In. 323. in an 1224 the 8 of the King as he yet th charters has an 9. In the year foregoing this King was sought to by the Archbishop of Canterbury Stephen and the other great men the Barons at Oxford where he held his Court to confirm the liberties and free customes c w id 316. Which he did not then do but sent his letters or writs to all theâ— Sheriffs of the realm to cause twelve knights or legal men of every County to enquire upon oath what were the libertics in England in the time of king Heary his Grandfather so he is yet called x id 317 Ma. Wâ—st the breakers of the Charters are Excommunicated with candles burning cast away extinguished and cast away stinking y Id. 861. Thus we see the stream of the laws of king Edward the ancient liberties and free customes some times running freely sometimes weakly sometimes stopped in their course at last have brake through all the Dams have mixed and incorporated with the great Charter whose basis and foundation they are z Nobilis D. Rog. Twisâ— den praefat in Ll. w. 1. H. 1 there still in being and still the fountain of the Common Law The great Charter raised upon this basis in one of the Statutes of confirmation is commanded by king Edward the first to be allowed by the Justices in judgement as the Common Law a 25. E. 1 c. 1 So that well might the Lord Cook say The great Charter is but a confirmation or restitution of the Common Law b Iast 81 It hath been confirmed above 30 times and by a Statute if any Statute be made against one of these Charters it is to be void c 42 E. 3 c. 1 â— which if it were intended not of the time past but of the time to come I see no such absurdity in it as some mens over wise policies would fancie some parts of it being as moral and immutable as the Decalogue it selfe As those That no man shall distraine for more service then is due no man shall be amerced for a small fault but after the manner of his fault no man shall bee destroyed
whom death with so much infamy so often really before their eyes cannot fright will never think any torment whatsoever where life is left them though with more misery then can be spoken terrible But it is thought horrible and grievous that a mans life which is invaluable in the law should be taken away for a thing of nothing for 12 pence Which says the most learned Knight is the antient law of the English Nay for lesse by the antient law of the English I may say so King Aethelstanes lawes begin with thieves and speak thus First that man spare no thiefe so I render it according to the words who in the manner having in his hand taken is above twelve yeers old c above eight ponce n c.r. either eight pence or twelve pence The law is full of equity this king gives a ram c. in the Preface as the Saxon worth four pence that which as Sir Henry Spelman sold heretofore for twelve pence would now be worth 20 or 40 s. in the Assise of bread long after the Saxons in the 51 of Hen. 3. eight bushels of wheat are valued but at twelve pence and although now the 12 keepes not the old rate but the modern yet things are prized in trials of life far below their worth and no man loses his life but where the thing stoln in estimate rises to more then many twelve pences That title of Cosroes amongst his others a king who hateth war may justly be given to our laws Peace the greatest blessing of this life and without which nothing else can be a blessing is everywhere provided for everywhere charged and commanded Peace is commanded to be kept in the Pallace or Hall of the king the forfeiture of the breach being the losse of all the offendor has and his life at discretion in the church the house field and town the mulct of wrangling was made 30.8 o Ll. Ina. c. 6. Ll. Alfr. c. 7. Ll Edv. sen c. 4. Ll. Etheldr c. 6 Every man was to give pledges heretofore of his good behaviour the violation of Faith so given was punished and is called breach of the peace Every breach of the peace was such violation Everymans house as the law since expresses it is to be his Castle He who infringed the freedome or liberty of the house called râ—m soone by house breaking forfeited all he had and his life was to be at the kings wil p Ll. Edm. c. 6. Grith or frithbrice were the terms for breach of the peace King Cnut in his laws first wills that Gods peace and the peace of the Church be kept then his own q Ll. Cnuti c. 12.14 and again We must provide for peace or the amendment of it most desired by dwellers and most odious to thieves r c. 8. Amongst the Prerogatives of the West Saxon kings are these breach of peace house freedom Å¿ c. 12.14 The Statute called Westm the first speaks Let the peace of the Land be maintained in all points The first of R. 2. Let the peace be well and surely kept c. according to the Law of the Land In the title of the Statutes of the 50 of Ed. 3. are these words To the honour of God and of holy Church and quietnesse of the people Which used to be the title of Parliaments t â— Inst 9. The Statute of Hen. the 7. concerning Justices of peace has That the subjecti may live in surety uner his peace in their bodies and goods Inprimis interest reipub ut pax observetaer is a mixime of the Common Law affirmed by Parliament u 2. Inst 158. In all Actions for any thing done against a Statute law where the words vi armis are left out yet the Writ has contra pacem against the peace w r. 9.50 Every affraying as Mr. Lambard or putting in fear is breach of the peace The laws do not onely make orders for the maintenance of the peace but as to the execution of the charge have appointed general and particular Officers and Ministers to manage this part and to undergo this care The Lord Chancellour Lord High Steward of England Lord Marshal c. Justices of the kings Bench says Mr. Lambard had authority inclosed in their Offices for the conservation of the peace all England over The Justices of the Common pleas are said to be conservators onely in special places The Master of the Rolles was a general conservator by prescription Coroners and Sheriffs are to be conservators within their Counties Justices of the peace instead of the ancient conservators antiquated are especially warders of the peace so are Tithing men Borougheads Constables and petty Constables in their limits As the first of Ed. 3. x 1. E. 3. c. 15.4 E. 3. c. 2. In every County good men and lawful that been no maintainers of evil nor barretours in the Country shall be assigned to be Justices of the peace As the 18 of that king Two or three of the most substantial men with other learned in the Law as the 34. A Lord with three or feur of the most substantial c. By a Statute of King Henry the 6. The Justice must have Lands and Tenements to the value of xx l. by the yeer he is to be sworn duly and without favour to keep 13. R. 2. c. 7 and put in execution all the Statutes and Ordinances touching his Office As by the Iaws of all Nations civil Religion and the Priesthood have their priviledges and honour so no laws ever favoured piety and the Church more then these and this fully and so often that if it be made by any an objection of prejudice it cannot be denied it must be confessed by all hands Those of the Roman new creed have in every age very clamorously and furiously slandered our Laws not onely as short and imperfect but as unjust to be detested by all the faithfull y Becket in Ma. Par. 101. Such as without a saving the honour of God and of holy Church z Hoved. Savil. 492. are not to be sworn to against the faith as the Bishop of Rochester may be thought to mean a Graft 1187. The exemption of the Clergie taken away by the Laws of Clarendon where yet only the old Laws were restored was thought as legal an impiety as heinous as could be yet Bellarmine though a man more nimble then ten thousand Beckets durst not make it of Divine Right Jure Divine valde conforme is as much as he thinks it is Not of Divine Right that were too high not of Humane that were as much too low but very conformable to Divine Right which is a ridiculous conforformity and makes it neither the one nor the other Within five years in the time of King Henry the 2. there were above one hundred murthers committed in England by Priests and men within Orders so that it was time to take heed of these
Hist Savil Edit 907. Sometimes the Chief Justice is called Warden of the Realm Vice Lord of England and Justice of England as the Alderman of England was most Honourable in the Saxon times So was the Justice after which was the same from the first time the word is heard of till Henry the third if we except Hugh of Bocland and Ranulphe of Glanville we shall not finde one of these Justices but he was a Bishop a Peere or at least of the Nobility of one of the illustrious families Aubreye of Ver Earle of Guisnes high Chamberlain of England Justice and as some Portgrave of London father of Aubreye of Ver the first Earl of Oxford which familie so Mr. Cambden justly is the most antient fundatissima familia amongst the English Earles as Matt. Paris was ready in the variety of causes exercised in them a In Sitph reg And of Geofrey Fitzpeter Then dyed Geofry Fitzpeter Earle of Essex and Justice of great power and authority a generous man skilful in the lawes allyed either by blood or friendship to all the great men or Barons of England b Id. in Johrege Henry after king son of Henry the second was chiefe Justice of England By the Statute of 31 of Hen. the 8. c c. 10. which ranks the publique great Officers The Lord Chancellour or Lord Keeper is the first man The great Chamberlain of England Constable Marshal and Amiral are to sit below him the Justices are accounted Peers and fellows of Peers Magna Charta sayes No free man shall be amerced but by his Peers and according to the manner of his offence It is observed As to the amercement of an Earle Baron or Bishop for the Parity of those who should amerce them when this Charter was made that the Justices and Barons of the Exchequer were sufficient Bracton as the most learned Mr. Selden cites him sayes Earles or Barons are not to be amerced but by their Peeres and according to the manner of their offence as the Statute is and this by the Barons of the Exchequer or before the king d 1. H. 6 7 v. D. Spelmver he Baron Scaccer All Judges sayes the same Mr Selden were held antiently as Barons which appears in an old law of Henry the first which is Regis Judices sint Barones Comitatus qui liberas in eis terras habent per quos debent causae singulorum alterna prosecutione tractari Villani vero Cotseti vel Ferdingi Cocseti vel Perdingi in legibus nuper editis sed perperam vel qui sunt viles inopes personae non sunt inter Judices numerandi e c. 29. The Barons of Counties who had free lands in them were to be Judges not common base fellows hence as Mr. Selden again are the Iudges of the Exchequer called Barons The black book of the Exchequer makes it manifest the Judges of the Exchequer before Hen. 3. or Edw. the 1. for thereabouts the Exchequer had its ordidinary and perpetual Barons were of the Baronage by these words f part 1. c. 4 There sits the chief Iustice of our Lord the King first after the King c. and the great men or Barons of the Realm most familiarly assistants in the kings secrets By the decree of king Iames g 28. Mai. 10. Jac. reg The Chancelour and under Treasurer of the Exchequer Chancelour of the Duchie chiefe Justices Master of the Rolles chiefe Baron of the Exchequer all the other Judges and Barons are to have precedency of place before the younger sons of Viscounts and Barons and before all Baronets c. there the degree of the Coif is called an honourable order the Serjeant is called by Writ The words used to be we have ordained you to the state and degree of a Serjeant at Law Vos and Vobis in election of Serjeants and summons of Judges to Parliament ever applyed to persons of quality are used One Statute speaks where he taketh the same State upon him h 8 H. 6. c. 10. And another At the Creation of the Serjeants of the Law i 8 E. 4. â— 2. Which is observed ever to be applyed to dignity k Rep. 10. Epist The Patrons of causes called pleading advocates and Narratores Counters of the Bench or Prolocutors of old as Paris l Hist 516. vit Abb. 142. all Lawyers were antiently of the Clergie And those now who are so curious for neatnesse of that order may thank their predecessours for that rudenesse which is so unpardonable by them in the Latine of the Law No Clerk but he was a Lawyer saies Malmesbury in * Lib. 4. Ed. 1. Savil. 123. William the second we read that Mr. Ambrose the Clerke of Abbot Robert of St. Albanes most skilful in the law an Italian by Nation amongst the first of the lawyers of England for time knowledge and manners is sent to Rome m Vitae Abb. St. Alb. 74. Adam of Linley is said to be Abbot John the 1. his Counsellor in all his weighty affaires a curteous man honest and skilful in the lawes n Ibid. after Archdeacon of Ely for most of them held Church-livings he was after speciall Counsellour and Clerk saies this this Monke to the Archbishop of Canterbury Stephane John Mansel of whom we read so much in the History of Hen. the 3. is called the Kings speciall Councellour and Clerk as much as Atturney generall since o Ibid. 142 Hence it is that the ancient habit of secular Judges was the same and yet is with that of the Ecclesiasticks p D. Wats Gloss ad Paris William of Bussey Seneschal and chiefe Counsellor of William of Valentia would have losed saies the same Monk the staies of his Coife to shew his Clerkly tonsure his shaven crown q 984 985 Hist And again he sayes The Clerks who such Writs dictate write signe and give counsell r 206. Aâ—â—it They are restrained by Pope Innocent the 4. his Decretales who forbid any such to be assumed to Church dignities c. unlesse he be learned in other liberall Sciences Philosophy and Divinity were laid by as the words there the multitude of clerks ran to the hearing of secular laws Å¿ ibid. 190.101 Hugh of Paâ—shul clerk is made justice of England by Hen. the 3 t Hist 405 So was the famous John Mansel before Keeper of the great Seale There have been seven Wardens of the Kingdome or Viceroyes of the Clergy twelve great chiefe Justices neere 160 times have Clergy men been Chancellours about 80. of them Treasurers of England all the Keepers of the privy Scale of old the Masters of the Rolls till the 26. of King Hen. the 8. the Justices of Eire of Assise till Edw. the third were of that order u D. Spel. Epist ad concâ—l men whom the Lawes were beholding to w 1 Inst â—ect 524. rep 5. Câ—wd 2. Just 265. else they had been told
who would have Law to rule the City seem as if they would have God and the Laws to rule but those who would have man to rule give the command to a beast Not that he condemns Magistracy which he often much magnifies but that he would not attribute all things to men By Law is understood natural Reason divinely infused upon which is framed a certain form of living By man humane Authority Such is my will my pleasure my affection are words might become Ket's Camp and his company of Governours They would sound horribly in a Judges mouth Therefore Rinalde protests in Machiavel That he would not esteem it worth much to live in that City where men were of more power then the Lawes Bragging of our own subtleties and contrivances is nothing to the purpose to make this invalid too often we have our ends and designes in them which the Law doe's not allow and hence grows our distaste how often has the case of perpetuities been over ruled it being against God and Nature that things here should continue without change where the change is just and against reason that an estate should continue in one family to the worlds end in such manner that no owner at any time could either advance his younger issues or pay debts out of it but that those of the descendents capable never so disobedient and unnatural should take all yet as if every man might make Lawes for his own patrimony how lawlesse soever and exploded this perversnesse will not be given over although according to the rule of that Reverend Chief Justice upon this case Mens Policies are to be fitted to the Lawes not the Lawes to their Policies s Sir Hen. Hub. 134. This writhing the Lawes * Pigh controv Ratis l. 3. as the Papists deal with the Scriptures which they make a nose of wax is an impiety which Livies remembers with the neglect of the Gods next it t lib. 2 A most reverend Bishop tells a Roman Adversary as ill satisfied with our Lawes as this State which made them was with the Treasons of his Order That he is unworthy to be indured in a Commonwealth held with Lawes who departeth from them u Tort. Tort. 145. We read That is lawfull which the Law of the twelve Tables and the Iulian Law permitteth w Wel. 7. si paciscat Dr c. li. 1. D. de Just jur and in the same Civill Law we say That is lawfull which by the Laws the custome of our Ancestors and institutions is allowed Every thing we may or can doe is not lawfull x Cicero Philip. 13. in which sence Vlpian interprets that clause of the Edict Quod eius Licebit And againe that is lawfull which is permitted by the Lawes to which is opposed unlawfull and that is unlawfully done which is done against the Lawes Customes c. y de legat l. 3. Although the Romans as the Spartanes from whom they are borrowers had their Customes unwritten which was Law approved onely by use Quibus saepenumero saies a Civilian Gliscentibae perniciosissime Lacones errabant z Lexic Ju. Ciu. tit Lex Yet to the end that neither favour nor hatred might approach the tribunall nor judgement be left to the arbitrary will of man and that the Lawes might be made certain and notorious the greatest part of the Roman Lawes were written that no one as is said might doe and undoe binde and loose at his pleasure because of humane frailty all men being liers it is not safe to trust the Magistrate without a written rule as another a ibid. The Jewish Lawes of the Decalogue by Gods coÌ„mand were written the Lawes of the Athenians were written by which they are said to excell those of Sparta b ibid. The Republique commends highly the publishing the twelue Tables then as that the Magistrates were constrained to governe the Subjects following these Lawes so that Equity and arbitrarines had not any place c Bod. de la Rep. Liure fixieme Charendos chosen the Lawgiver of those of old Sybaris or new Thurium in Lucania now Bafilicata chosen so Diodorus to prescribe them the manner how to live having diligently looked over the Laws of other Nations and digested the best into one body commands in no sort to dipart from the words of the Law or from the writing à legis scripto d Biblioth Li. xii his reason is from the absurditie that private men should meddle for this he reserves to the supream power though things be amisse He speakes not more to Magistrates in his prohibition then to any others but generally nor of equity both which Bodin would seeme to prove by this place e Republ. L. sixieme And although in a Court proper a Judge of Equitie is to be allowed yet if it were allowed to all other Courts to expound the Law against the Letter perhaps meaning of the maker according to conscience as wâ— speak Equitie would as more plausible be every where cryed up like Caesars consulship the Law suspected in every case as unjust in time being lost in opinion would weare out and fall insensibly as uselesse and in all Courts there would be nothing but equity left which aequum bonum or equity is in plaine termes nothing else but absolute and arbitrary power King Francis the first of France having subdued Savoy and driven out Charles the second the Duke the new Magistrates substituted by him gave judgement according to equity and often against the Customes and Law written the Estates of the Country were quickly wearie of this equity they could finde no justice in it and therefore Petition the King That those Judges might no more judge according to equity which was nothing else as the reporter but to tie them to fasten them to the Lawes without any variation ny sa ny la neither here nor there a thing quite contrary to the passions saies Bodin of favourable Judges f Vbi supra The mischiefes and oppressures done by Empsâ—n and Dudley are imputed to the Statute of King Henry the seventh authorising to hear c. offences committed against poenall Statutes c. According to discretion not according to Law and Custome of England which the Lord Cooke seemes to dislike g 4. Just c. l. p. 40. yet which is the same discretion is so he thus to be described To discerne by Law what is Iustice h ibid 41. When a Jurie doubting the Law has found the speciall matter the entrie is and upon the whole matter c. They pray the discretion of the Judges or the advice and discretion of the Justices in the premisses c. The Statute 3. of King Henry the eight of Sewers allowes to make Statutes according to their owne wisedome and discretions c. which words are to be to be intended and interpreted according to Law and Justice i r. w. Kighleys c. It was
every paultry Chafferer for smal Wares and a plaine wit with modestie is more profitable to the government then arrogant dexterity l Thucyd. l. 3. In the glosse upon Justinians Institutions to set up Lawes and pluck them downe is called a most pernicious custome in many places as there declared so by Plato and Demosthenes m f. 28. The Lord Cooke his judgement of the Lawes of England is That having been used and approved from time to time by men of most singular wisedome understanding and experience to be good and profitable for the Commonwealth as is there implied they are not to be changed n Pâ—af to the 4. rep To which purpose he recites there the resolution of all the Barons of England in the Statute of Merton refusing as the King and his Counsell doe which the Lord Cooke o 2 Just 98. collects of them out of the 26 Epistle of Robert Bishop of Lincolne to the Arch-Bishop of Canterbury to legitimate the antenate or bastard eigne borne before marriage with this reply in these termes And all the Earles and Barons with one voice answered That they will not change the Lawes of England which hitherto are used and approved p Stat. Mert c. 9. what is lesse then change the same Lord Cooke likes not correction of the Lawes It is an old rule in Policie and Law so he that correction of Law bee avoided q 4. rep Pres which some will thinke is over-done a streine too high yet it has its reason Lawes are the walls of Cities to be defended as walles no caution can be too much like the Soveraigne of Mexico they are not to be touched But had our Laws or others been composed not only as they are by the most solid wisest heads of all the ages past but by immediate conveiance from God himself pronounced with his own voice or delivered by an Angell to us One word Libertie specious Libertie more admired then understood with which of late Laws are idely imagined inconsistent were enough to cancell and blot them all I am unwilling to shew here how much and often but how seldome to an honest end for the most part in the head of a mischief this word this found or handsome title for it is no more has been used It is most true all Lawes are inconsistent with this Liberty as that 's inconsistent with any Government whatsoever The eminent Patron of it was a Jew Judas of Galiles author of the Sect who as Josephus r L. 18. c. 2. agreed with the Pharises in other things but on fire with the most constant Love of Liberty they beleeve God is onely to be taken for their Lord and Prince and wil more easily endure the most exquisit kinds of torments together with the most deare to them then to call any mortall Lord. If it might have beene permitted they would have been free enough no Tax Tribute Custumes nor Imposition would they pay but not out of that authority of Deutoronomy which is pretended but no where to be seen Non erit pendent vectigale There shall not be any paying Tribute amongst the Sonnes of Israel There are no such words nor any to that sense in any of the received languages 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are the Greeke words as our English amongst the Daughters and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the place signifies not one who payes Tribute but one initiated in the mysteries of the Paganes by them called sacred s Orig. Eccl. Tom. 1.1317 yet had this Heretick as all others ever brag of it Scripture authority from this Booke t Deut. 6. and with the words Thou shalt feare the Lord thy God and him onely shalt thou serve he was fortified which conclude nothing Tribute being paid under the Law as the price of redemption of the first borne and in many other respects dispersed over the Law To men too and in relation to government manifest by that in Samuel u 1 Sam. 17 The man who killeth Goliath the King will make his fathers house free in Israel This the Georim and Epimicti the Posterity of the Cananites and of those which came up with them from Egypt did not onely pay but the Israelites also as is cleare by that text and this That Solomon made Jeroboam ruler over all the tribute or burthen of the house of Joseph w 1 Reg. 11 As others were over the rest of the Tribes Adomiram being said generally to be over the Tribute x c. 4.6 Though Judas inturning the people after him and his Libertie as it is called with his Sonnes perished yet the dregges of his sedition were gathred together in the Castle of Massada by Eliazar the Nephew of this Galilaean with the same obstinacy not to call any man Lord they had their beastly kennel fired about their cares and after some exhortations to one another not to esteem their lives above their deare Liberty they fall upon their owne swords y Joseph l. 7. c. 28. The Jewes of late have made some change with their borderers with their next marchers this as before is become Anabaptisme now of which some of those of Rome who will be any thing rather then stand out where they may doe mischiefe fall not much shorter Christ as Cardinall Bellarmine freed his Apostles from all earthly subjection So that therefore they were subject of fact not of right To passe by all these there is not that fulnes in the word Liberty which is expected Cicero makes it a power to live as we list z In Paradox which cannot be in any government or society nor in any the most retired exile of our selves from mankind if at any time we have the shortest commerce or conversation with others The institutions define liberty to be the natural faculty of any man to do what he pleases a Justin Jâ—stit 31. unlesse by force or Law he be forbidden which as the glosse renders it is a power given by nature to do what we will unlesse one more potent hinder us As Scipio hindred Hannibal yet was Hannibal free still Or that the civil Law of our country forbid us b Et libertas Which last is explained thus Cicero sees his destruction contrived by Clodius and hanging over his head he desires to preserve himselfe by prevention and to kill Clodius that he may free himself from the danger but dares not as I may say either reverencing the Lawes as a good and a just man for he is injust who do's justly because of the penalty annexed to the Law or fearing that penalty as the words yet is Cicero free It goes on We call that liberty which is just and consentaneous to the Laws and therefore is subjoyned in the definition Vnlesse any thing be forbidden by the Law c In lib. 1. tit 111. So that plainly there he is a free man who may do those things which the Laws permit him which
we cannot say of servants meaning servants by the Civil Law or Law of Nations after their conversion injoyned by St. Paul strictly to obey d Ephes 6. Coloss 3. Liberi free men are called so from Liberty as servants from servitude being opposites Liberty in the proper and strict sense being spoke of the one as servitude of the other though now improperly other kinds of things may and do come under those appellations Such liberty then as may be suffered by Laws and amongst men incorporated in a government is sufficient and whosoever will be displeased at it all that can be had Living under such a law as ours shall be shown to be where mens persons are free and their estates in which they have a propriety unless in such cases whereby their publique offences that freedom according to the plain words of known Law is justly forfeited as where the Jury in attaint are sentenced to lose their Frank Law e 46. E. 3.22 or in such cases where all the parts are to contribute to the good of the whole as either to the maintenance of a warre undertaken by the publike and supreme power or to the splendour of their home peace which as it must certainly be of value out of gratitude for the benefits injoyed under it all are bound to is Liberty as the Magna Charta f c 29. No Free-man so here is this liberty shall be taken or imprisoned or disseised of his freehold liberties or free Customes nor be outlawed banished nor in any manner destroyed c. but by lawful judgement of his Peers or by Law of the Land Which is not waging of Law as a most learned Author would have it g Tit. of Honour 1. edit 344. This chapter of the Magna Charta is partly repeated in a later Statute h 25. E. 3 4 v. 5 E. 3.9 21. E. 3.3 v. Vâ—â— Abb. S. Alb. 143 and there Law of the Land is expounded Indictment Processe by Writ Original and course of the Law another Statute recites it and instead of the words Law of the Land puts in Processe of the Law as equivalent and Synonyma signifying the same thing i 37. E. 3.18 and again a Statute of that King says No man shall answer without presentment before the Justices or matter of Record or by due Processe and Writ Original according to the old Law of the Land k 42. E. 3.3 So we see the free man hemmed in with all his liberties and free customes if he abuse them if he be found guilty of a publike crime or of any injustice or wrong done to his neighbour for which according to the Law of the Land and the judgement of his Peers or equals such liberty ought no longer to be his Sanctuary then as having forfeited his birthright of the Law he becomes a servant as the Statute may be taken imprisoned disseised of his free hold or liberties Outlawd or in any wised stroyed The same Magna Charta wils l c. 14. That no Freeman be amerced for a small offence but according to the manner of that offence c. The Statute of Merton provides m c. 10. That every Free man which is legally free who oweth suit to the County Tithing Hundred or Wapentake or to the Court of his Lord c. Here is the Free man again yet indebted he oweth suit and is chargeable with those duties the Law has obliged him to Legal liberty there may be there ought to be if these pretenders ever turmoiling and troubling others more peaceable and modest then themselves could overturn and alter government as often as the unquiet Florentines did theirs could make it their perpetual motion who changed ten time in a very few yeers n Mach. Hist 57.67 69.99 90.115.166.171.237 the proscriptions and slaughter of the best Citizens and the pangs and throwes of every change considered This liberty would not be worth the blood she must swim through to her throne and perhaps then there would be little liberty for any but those who conduct her thither liberty so this Historian upon the motions of his City is oppressed by the name of liberty Salust in his description of the Aborigines gives the best character of these lawless libertines in these words They were a kind of savage wilde men without Laws without command or government free and loose Such I take ours to be and such their liberty which may and will ever be pretended but without extirpation of all Religion humanity order and civil policy can never be had And if onely Cato's wise and just or honest man be at liberty and all wicked men slaves and villains o Plut. in Catone Vtic. I believe few of this Sect let them move every stone they can are likely to be free man is a labyrinth full of windings let the outside be never so specious and taking it may be a great distance from the heart there is no safety but in distrust we should suspect every thing which our own experience hath not assured us of most of all when Lawes which are the heart and vital parts in a Government are practised upon we idlely and fondly charge destiny and the period and ruine of things upon fatal families or boundary yeers when the truest cause of the calamity is our own unworthy lightnesse The reason why the Commonwealth of Sicyon survived the policie and Estates of all Greece besides is made this in seven hundred and forty yeers they never set forth new Edicts nor went beyond any of their Laws never exceeded them all things below are in continual motion have their infancy their manhoood and old age which is change and death their rise and fall yet as regular diet and temperance preserve the weakest most declining bodies so although considering the multitude of wicked men and what may hurt without no Government in judgement can subsist at all without the peculiar never failing assistance of the divine power yet may good Laws well obeyed prop up and keep off the fate of that which else would tumble presently And all things else would be more constant if man were so CHAP. II. Of the Law of England and what it is Its Antiquity not Norman King Edward the Confessor his Lawes brought down to Magna Charta and there setled The fundamentals are Saxon-English The English-Norman Laws since because of new offences of Tenures AS wisdome goes and must go it has ever been easier to gain the reputation of wisdom then of goodnesse The good man was he who loved his Country more then himself who obeyed and reverenced the Laws for Justice sake and if possibly would not have outlived them rather just then shiftingly politick The answer to the question Who was the good man used to be Qui leges juraque servat he that kept the Laws The Ancients of the greatest experience and learning peaceably ever observed the Laws of their several Countries neither were those
Colonie of the German Saxons so are their lawes full of their and our Customes agreeing together in many things yet k Dn. Spel. gloss 440. When Austin the Monk was sent hither by Gregory the great to convert the Saxons in the yeer 597. Not one hundred and fifty yeers after the entrance of the Saxons he was commanded by him to take interpreters with him out of France in his way l Bede l. 1.25 and it was unlikely while the Saxons yet kept the language of their Countrimen they should have forgot their Customes contrary to the manner of all the other Tribes of that Nation The first Saxon lawes writ by them after their Conquest are those of Ethelbert of Kent the first Christian and Monarch then which says Venerable Bede amongst the other good deeds he did his people set constitutions of right judgements according to the example of the Romans with the Counsel or advice of his wise men Mid srotera geþeat Which he commanded to be writ in English and which are held says he of his time long after Aetbelbert to this day m l. 2. c. 5. These were short and rude like the age Next are those of Ine the West-Saxon those of Offa the Mercian Kings of Alfred King of England founder so Ingulphus of the English policie and order ever since observed called by the book of Ramsie The renowned King Alfred founder of the English Laws Who is first said by Master Lombard and others of the greatest name to have divided this land into Shires Hundreds and Tithings c. to establish jurisdiction in every of them n Archaolog 15. again it is said he gave not onely lawes but Magistrates Shires Hundreds c. which so one place speaks we have often observed o Gloss tit Ll. Angl. Iugulph Though no man can honour the sacred memory of this most glorious Prince more then my self and I know viros magnos sequi est pena sapere yet I cannot believe this Malmesbury speaks onely of the Hundreds and Tythings the invention of which he attributes to this King p de Gest reg c. 4. He might which the Glossary is once contented with review the Lawes of Aethelbert Ina and Offa transcribe and insert whatsoever was worthy into his lawes and impose them upon the Angles the English generally as the Danes submitted to him in which name the Jutes and Saxons were included he might adde much and polish what he found being never idle ever imployed for the good of his people either in his Courts and Councels of State or in the head of his Army But he that looks upon the lawes of King Ine will find enough to assure him that King Alfred laid not the first stones of the Government which by whomsoever laid were laid before King Alfreds great Grandfather was born there being neer 200 yeers betwixt these two kings q Fasti Savil Not to recite the lawes upon offences we read in the lawes of King Ine of the Shire the Alderman and the Kings Alderman One law speaks thus If any man shall let a thief escape or hide the theft c. If he be an Alderman þolige hisscire he shall forfeit his Shire c r Ll. Ina c. 36. Another If any man shall demand Justice or right before the Shireman the Earle or other Judge Å¿ c. 8. v.c. 6.51 c. The Proaeme mid eallum minum ealder mannum and with all my Aldermen the chapter of breach of the peace In the Kings Town Aldermans Town Kings Thames Town c. t c. 46. Thorold a Benefactor to Crowland Abby long before King Alfred in two old Charters is called by King Kenulph Vice Comes Lincoln and by King Withlaf quondam Vic. Com. Lincoln sometimes Sheriffe of Lincoln u Concil Sax 3â—8 Ingulph 854.857 Venerable Bede who flourished in the time of King Ina tells us in the days of King Edwin King of the Northan hymbres Paulinus the first Archbishop of Yorke converted to the Faith Blecca with his family Line cole ere szre geÆ¿efan w Bede l. â— c. 16. l. 5. c. 4. p. 375. The Gerefe of Lincoln and elsewhere says he Hanwald the gesiþ a word rendred comes with his geref w th his Sheriffe Aethelwine betrayed King Oswine x l 3. c. 14. l. 4.22 l. 5. c. 4 5. Hundreds and Tythings are not named in the Lawes of the Kings Ina or Aelfred In King Ina's Laws pledges borgas are named by which probably we may think Tythings to have been then One Law wills if the geneat the husbandman as now we speak steal and run away that the Lord pay the angild the price c. if he have no pledges y Ll. Ina. c. 21. Ll Edg c. 6. Cnati 19.27.35 After the laws of King Aelfred those of Edward the Elder of Aethelstone Edmund Edgar Aetheldred and of Cnut the Dane succeeded all which were distinguished and ranked under three heads The first of the Weft-Saxons under whom as united and submitted were comprised the Saxons generally caled Æ¿estseaxna laga the West Saxon Law The second of the Mercians or Angles called Myrcna laga the Mercian law the best and most select of which King Aelfred as before took into his laws not rashly as he says in his Preface He durst not as his words are because he knew not what the next age would like set forth much of his own What he did still as he pleased his wife men w Praefat. in Ll. Alf. those of his Counsel The Ãeâ—elaga was the last of these called the Danes law of all which we may say as is observed out of Ovid. Facies non omnibus una Nec diversa tamen qualem dicet esse sororum Yet King Cnut as much resemblance as there was lik't it not out of all these laws he composed one Common Law which King Edward the Confessor observed z Malmesb de gest reg l. 2. c. 11 â— See here ch 3. His title says The laws of St. Edward begin quas in Anglia tenuit which he held Edward the third before the Conquest as one set forth one Common Law called the lawes of Edward to this day a Ranulph cester l. 1. c. 550. Hov. 600. Ll. Ed c. 35. in Hoved. which because they were just and honest as the Paraphraste upon the Laws of St. Edward he recalled from the deep abysse and delivered to be kept as his own As another he was the lawful restorer of the English laws b Gemetic l. 6. c 9. all this may be he restoâ—ed them and recalled them from the deep Abysse they might be forgotten dedicated as the Paraphrast speaks to oblivion wholly but not as he addes from the time of King Edgar in the reigns of Harold the first and Hardicnut Besides restoring and addition he commanded this law should be kept as his own and being a king of the Saxon blood and falling last upon the work it is
must needs then be The Hundred which was ten tythings a Germanie Institution q Gapit Car. Calui apud siluacum where every man was bound to attend in the North called Wapentake then the Trything Thryhing or Leet the Jurisdiction of which extended over the third part of a Province containing three or four Hundreds r Ll. Ed. c. 34. The County Court called gerefas gemot the Sheriffs gemot or Court to be held by the Institution of King Edward the elder every fourth weeke where the Sheriff was to decide civill and prediall causes and every sfraec as there plea was to have an end at the day Å¿ Ll. Ed. sen c. 11. The supreme Provinciall Court was the Sciregemot or Shire Court the same which now we call the Sheriffs turne kept twice the yeare where the Thanes or Noblesse were bound with the Freeholders to be present the Bishop was Judge for Church-matters and the Alderman of whom below for things secular here was the Assembly of all the Hundreds t Ll. Eadg c. 5. ll Aethelst m. s c. 20. Il. Cnuti c. 7 â— p. 2. here Causes Civill and Criminall were determined This Court and its Jurisdiction was very ancient being famous and used in the same manner amongst the Franks and Lombards as may be seen by their lawes u Ll. Car. Lud. Im. l 4. c. 26. Car. m. Lom l. 2. tit 52. Ll. Aleman tit 36. VVilliam the first divided the Jurisdiction and confined the Bishop with his Causes Ecclesiasticall to a Court by himself which were discussed in the Hundred and Court of the Shire before which appears by that sanction of this King directed to the Earls Sheriffs and all the French and English so it speakes who have lands in the Bishopricke of Remigius Bishop of Lincolne though there onely the Hundred bee named w Not in eadm 167. yet there is added The Episcopall lawes which were not well kept nor according to precepts of holy Canons c. and as this is recited elsewhere They shall bring nothing to the Hundreds or Judgement of secular men x M. S tab Rob. Winch. Arch. Cant. in eadm 168. and every secular Court is alike forbidden to Church-men by the Canons In one or other of these Courts in the lesse or greater all causes were to be determined at mens homes and at their owne doors if the parties would rest there no man ought to sue out of the County to draw his Plea from thence without good cause which might be pretended then and in every remove ought really to be now as appears by the Tolt Pone Accedas ad Guriam and Recordare This good cause was if the Suitor could not have Justice at home or what he had was rigour and summum jus then might appeales be to the Palace to the King there whose Court is called the High Court of Justice for law and equity y Ll. Aelfr c. 38. Ll. Edg. c. 2.11 Cnuti c. 16. after the manner of the ancient Jewish Commonwealth a course observed sayes the most knowing Knight all Europe ore z Gloss tit Cancellaria Our antient Kings as he swore before the Realm and the Priesthood right Judgement to doe in the Realme and Justice to keep by counsell of the Peers of the Realme a Ll. Edu Con. c. 16. viz. In this Court every City and Borough had their Courts the Burgmote kept thrice the yeere the Wardmote the Husting the most antient and supreme Court of the City of London is of Saxon extract which every Munday used to be held now on Tuesday yet does the stile still say held on Munday Lincolne Winchester Yorke and Shepey have their Hustings it held Pleas as it does of things reall and mixt Judges there were too in the manner we finde after the Normans who changed only their name from Aldermen to Justices There was the Alderman of all England Chief Justice as Ailwin Founder of the Church of Ramsey was called upon his Tomb The Kings Alderman as the most knowing Knight thinks b Gloss tit Aldermannus like the Missi c In Capit Gar. m. Franc. ll as our Justices in Eire or of Assize The Alderman of the County Iesse then the Earle but equall with the Bishop which three sate together in the County the Earle was to take care of the Commonwealth the Bishop of the Church the Alderman of the County to declare and expound the law c Gloss ibid. Besides as to execution of publike Justice upon the contumacious he might which our Posse of the County resembles use force raise the people This difference is plaine in that law of King Aethelstane Be Æ¿erum of the estimation of heads d P. 55. part 2 ll v. ll Jnae c. 8 Faedus Regum Aeâ—fr Gath. m. s in gless citant where the were gild or price of an Archbishop and an Earls life who are joyned as equall is fifteen thousand thâ—imsa of a Bishops and Aldermans who next follow and are joyned but eight thousand c. Sometimes the same things are said of both the Earle and Alderman so that they may easily be thought in those places the same This was a Salic Institution to substitute thus two or three under the Earle whom they called Sagibarons as Ingulphus who is altogether for King Aelfred King divided the Governours of Provinces who before were called Vicedomini into two offices into Judges whom now we cal Justices and into Sheriffs yet he has in our Charter Bingulph a Vicedominus which Title the Justices yet in Ingulphus retained and Alferi a Sheriff e In An. 948. The Saxons had their Hold or Heretoch their Military Commander in every County Places had their Bilaga by-lawes besides the Common Law Law made by consent of Neighbours now by the Homage in a Court Baron Suiters in the Leet or view of Frankpledge in towns by the Inhabitants and Neighbours as M. Lamhard The Saxons our Ancestors retained the manner of the old Germans their owne Elders who in Tacitus Jura per pagos vieâ—sque reddehant made distribution of Justice not onely in one Towne or in the Princes Palace but also at sundry other speciall places within the Countrey and as he truly the Normans who invaded the Posterity of the same Saxons here did not so much alter the substance as the name of the Saxons order f Archâ—ion 89. But to satisfie those to whom the Normans may be as odious as their Conquest although perhaps they may be Normans themselves most likely descended by some Mother from them and may seem as fond as if now at Millaine or Pavie after so many hundred yeares they would indeavour to distinguish the Lombard and Insubrian the Insubrian Gaule from the Italian in France the Gaule and German-Franke in Spaine the Carpetane and Wisigoth I say to satisfie them I will prove by the testimony of those who lived then when this Norman change is imagined
without triall justice shall not be sold nor deferred c. The observation of these Lawes was a condition of Peace which ever appeased the antient distempers and cemented what was loose and dis-joynted in the great body The Lawes toe of St. Edward are inserted into the oath of the Kings of England usually taken at their Coronations which were not onely superfluous and abundant but an impious vanity if there were no such lawes any where after the solemnity of this religious and sacred bond to be observed The manner of taking the Oath as we find is this The Archbishop asks the King VVhether he be willing to take the Oath usually taken by his Predecessors and whether the Lawes and Gustomes by the antient just and devout Kings granted to the people of England with the confirmation of his Oath he will grant and keep to the same people and especially the Lawes Customes and Liberties by the glorious King Edward to the Clergie and people granted d Ex libro regali After he is led to the high Altar where he swears to observe them c. Further so farre are some from allowing our Lawes to be Norman that they are of opinion the Normans received theirs from us as they most of their Customes being so derived as William of Rovel in his Preface to his Commentary upon the grand Customary Edward the Confessor being a long while in Normandy gave Lawes to the Normans and made the Customes of England and Normandy e D. Spel. gloss v. jurata which if it were not so nothing is lost by it nor does it make any of these truths suspitious * Sup. 55. that so few of these Lawes are come to our hands of which something is said before and of their Book-Cases or Judgments none at all There never could be any such Volumes of them heard of as are fancied besides the honest simplicity of the first ages and the strictnesse of rules spoke of writings and deeds either to pass Lands or Priviledges were not in use till King VVithred neer 700. years after our Saviour that King being so illiterate that he could not write his name as himself confesses f Concil Sax. 198 King Aelfred little lesse then two hundred years after this complaines of the ignorance then that there were scarcely any on this side Humber who could understand the ordinary common prayers or translate a piece of Latine into English but in the beginning of his reign on the South of the Thames he remembred not a man who could have done it g Ibid. 379 Epist Aelfredi ad Walsagepiscep and although this King of sacred memory if perhaps as I cannot thinke he was not the Solon and Arthitect of our Saxon English order yet a great restorer of it built gloriously upon the frame he found yet these were lesse then beginnings would likely have been where such a Prince had been the Workman he could not intend them the Danes like a fatall whirlewinde tearing up root and branch every where ruining had long before broke into the Land which two hundred yeers together they miserably harassed with whom he fought fifty six battells and as may be imagined had not leisure to performe the duties of peace but in his armes sometime hid in the poore shed of an Herdsman as the most knowing Knight a King without a Kingdome a Prince without people so that hee could not thinke of his Lawes h Concil 378. and although there was some breathing and the storm had some intermission some calmes were in the two hundred yeeres some in his reign yet such ravage and spoil had these barbarous theeves made and so universall might the Confusions and Disorders be we may conceive it would be the labour of no short peace to restore things fallen or shaken to their first condition without making any the least progression this being not to be done till the corruptions which warre licentiousnesse and carelesse negligence have bred in the parts most sound are plucked up and the weeds throwne out which must be the worke of time The proceedings too of the Saxons our Ancestors as M. Lambard in judgement was de plane and without solennity enough to cleare this though the Saxon Lawes then were enough for the Commonwealth yet they had no great extent whatsoever unto S. Edward gathered out of the Lawes of those who followed this King and saw more quiet dayes or out of the whole body of the Saxon Lawes could not reach farre but not out of any defect in the Law it selfe then the cause why the law runs in a larger channell and spreads into more veines now is not any artifice or injust dealing of those who practice it but the improvement of estates by good husbandry much traffique whence contracts are more frequent As Sir John Davies there is more Luxury and excesse in the world more force deceit and oppression more covetousnesse and malice breach of peace and trust which as they gather strength and multiply so must the laws there is a necessity that as these mischiefs increase there should be supplements of laws to meet with them Mr. Daniel observes of the Assize of Clarendon long after the Saxons that it consisted as it does of very few points and that the multitude of actions which followed in succeeding times grew out of new transgressions c. When the Romans were little better then shepheards and herdsmen it is said a few Ivory tables contained their laws after they came to be Lords of the world thousands of Books were writ of the Romans Civil Law Albericus Gentilis justly reprehends Ludovicus Vives who maintained as he that all things might be finished by a few laws as the same Mr. Lambard speaking of the Law of England positive or written Law neither is nor can be made such a perfect rule as that a man may thereby truly squâ—e out justice in al cases which may happen for written lawes must needs be made in generality and grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particularity which experience and time doth beget i Archeior 76 77. There is a curse of peace the highest prosperity has its dangers there can be no safety in it the rich man is more infirm more unsound then the poore pride and malicious contention are diseases he is seldom free from it is well said of wicked men and their injustice there is need of many laws to bridle them of many Officers to execute of many lawyers to interpret those laws We know all laws come not in by heaps but as time corrupts things and new wrongs and offences are discovered by the same degrees Thus the Sumptuary laws amongst the Romans came in the Fabian of Plagiaries the Julian of publike or private force de ambitu and the rest all our Statute laws which are remedying So must it be and so it has been in all Commonwealths of
and Leases often profectio militaris and expeditio are the same which amongst the Saxons is called here fare amongst the Germans Hereban with us and the French escuage at least that which is certaine b Glos verbo Heribannm The Charter of Bertulph King of the Mercians Anno 851. to the Monastery of Crowland grants All those abovesaid Churches Chappell 's Lands Tenements Pastures Fishings Mannors Mansions Milles Marshes free and discharged from all secular service and earthly charge c. and I free from all duty of the King and of every other Lord and man of what dignity excellency and honour soever c Concil 346. Jngulph Hist 861. King Athelwulf the West Saxon and Monarch in his grant of the tenth Mansion and of the tenth of all goods to the Church differs little from these Hee will have that tenth part to be free as the severall Copies have it and as we find it hitherto to have been from all socular servitudes and from all royal tributes the greater and the lesser or from the taxes as in Ingulphus which we call winterden as Malmesbury Witerden as Math of Westminster Witeredden who agrees with the others in this part onely he has secular services for servitude all of them make the Charter conclude contrary to the Charter of Eadbald before and let it be free c. to serve God onely without expedition repaire of Bridges and Castles which by the old law or old policy rather of the English Saxons it is said the Kings could not discharge This is therefore called the writing of the Liberty of the Churches of England This Charter worthy of everlasting memory was granted in a Generall Councell at Winchester such one as is called Pan Anglicum where were present three Kings Athelwulf the Monarch the West Saxon Beared the Mercian after driven out by the Danes and Edmund the Eastangle the Martyr slaine by those Danes Hence the most worthy Knight thinkes the rectory and the glebe to have had their beginning though faire additions from the munificence of pious patrons have been made to it since d concil 349. 352. In optona grena Vpton grene as Ingulphus St Gutlac the tutelar speciall Saint of Crowland had and bath Woods and Marshes c. in the time of King Edward free and quit from all services e Hist 909 from the time of King Etheldred was the Seat of our Abby sayes he quit and discharged from all secular services and our Abby was quit and free from all secular services in the time of that King who was the lawfull Successour of the royall blood of the English and father of the most pious King Edward f p. 911. s 30 40.50 And againe a great part of the Marshes and Meadowes of the Seat of our Monastery saies he I demised for a certain yearely rent and other services to be done g 912. The Folcland of the basest tenure amongst the Saxons as M. Lombard which passed without writing was that which now we call Copy-hold at the will of the Lord h Glos terra exscripta whose condition as also that of those who held by socage was far more servile before the Norman entrance then in some times since before the services of all these consisted in fcasance in doing after in render by payment c. as the most reverend Judge Littleton of those who hold by socage Afterward these services were changed into money by consent of the Tenants and desire of the Lord viz. into an annuall rent c. yet the name c. remaineth and in divers places the Tenants yet doe such services with their Ploughes to their Lords i L. 2 s 119. Bracton calles the Copy-holder villein sockman or sockman of base tenure k L. 2. c. 8. others tenant in villeinage servitude indeed or villeinage since Richard the seconds time is by degrees rather worne out then abolished by any law nothing now is left but the name the last man which I have knowne claimed for a villein being Crouch of Sommerset-shire in Queene Elizabeths time l Dy. 266. 283. This too is Saxon English and preceded the Normans but was never favoured by the Law m Dy. 267. lit s 193. Forost c. 42. The Saxon lawes call the villain ðeoƿ mon or man ðeoƿ and ðeoƿe indifferently a servant man or servant not that freemen were not servants too as since they are both which are visible in that Law of King Ina If a Servant man worke on Sunday by his Lords command be he free and the Lord shall pay thirty shillings for a penalty if he worke without his Lords knowledge he shall lose his hide be whipped or his hide gild the price of it but if a Freeman worke that day without his Lords command he shall lose his freedome or sixty shillings n Ll. Ina c. 3.23.46.73.50 Ll. Aelfr c. 5. In that extract of the Lands of the Monastery of Crowland taken out of the Dooms-day Book by Ingulphus the Abbot we finde in Langtoft S. Guthlac bas c. viz. five Carues eight Villains * Barders sup 81. four Bord. and twenty having soc socham habentes 5 Carucatas it should be twenty socm habentes 5 Carucatas and in Bston c. There in Dominio one Carue five villains two Bord. and seven soem with two Carues in Soudnave slound two servants six villaines three Bord. with one Sochman having three Carues c. with much more of the same o Ingulthus Savil. 908. In the yeare 1051. Thorold of Buckenbale Sheriffe of Lincolnshire likely of the the blood a descendent of the former Thorold who had Lands in Buckenhale grants the Mannor of Spalding to Wulgate Abbot of Crowland in these words I have given c. to God and St. Guthlac of Crowland c. all my Manor scituate neer the Parochial Church of the same Town with all the lands and tenements rents and services c. which I had in the same Manor c. with all the appendants viz. Colgrin my Reeve and his whole scquele with all the goods and chattels which he hath in the same town fields and marches c. also Harding the Smith and his whole sequell with all the goods and chattels which he hath in the same town c. also Leftan the carpenter and his whole sequell with all the goods and chattels c. also Ringulph the * Ringulphum primum first and his whole sequell with the goods and chattels c also Elstan the Fisher and his whole sequell with the goods and chattels c. Also Gunter Liniet c. Outy Grimkelson c. Turstan Dubbe c. Algar the black c. Edric the son of Siward c. Osmund the miller c. Besy Tuke c. Elmer of Pincebeck c. also Gouse Gamelson c. With the same clauses to them as before The conclusion is these my servants servos and their goods and chattels with all
my Cottages c. together with my Piscaries as well in the marches adjâ—cent as in the sea coming up to the same Town c p Ingulph 913 914. Plain denotations of the Villein regardant this was done in the tenth yeer of Edward the Confessor fifteen yeers before the Conquest and unlikely those rents services and the villeinage of these men should begin the day before the grant This Ingulphus himselfe makes plain It is sayes he to be declared that in the seat of Crowland villeins borders nor Sochmans are not received unlesse out of fear of war over our heads q p. 911. I should think this Sochman very base neither of much esteeme nor freedome where he is so ranked and keeps such company as in these places Nor here was our law more inhumane then those of all other Christian Nations The Civil law suffered this slavery till Justinian by a general Edict restored al men to their freedome it was frequent in Germany till the reign of Lodowick the second The villains there were affranchised with reservation of day works and Escheates which hold yet in the low Countries and in France c. saies Bodin r Republ. luire 1. In Poland the Villein is yet in being he is called there Kmetos and may be killed by his Lord. Lewis Hutin freed many of these from their servile condition in France Humbert those of Dauphine Thibalt of Blois those of his Countrey Charles the seventh of France others Henry the second the Bourbonnois Emanuel Philibert of Savoie did the same in his Countries The Lord of la Roche Blanch in Guascgogne Å¿ An. 1558. in Boains time pretended not only a right of succession to the goods of his Subjects so the Peasant or Vassall under the jurisdiction of any Lord is called called by the French main-morte but also that they were bound to plant his Vines till his Fields mow his Meadowes reape and thresh his Corne build his House to pay his ransome and the taille in the four cases anantiently accustomed viz. for Knighting the Kings eldest Sonne marriage of his Daughters voyage over Sea and Captivity and if they stragled out of his Lands without his leave to bring them backlike Beasts with halters about their necks which last part was cut off by arrest of the Parliament of Tholouse By all this it is manifest in these things there is nothing singular nothing without example the greatest could be given and let the Normans and their entrance be as injust as is imaginable never to be forgiven such as no satisfaction can expiate These are no crimes of that Conquest and ought not to be involved in the name CHAP. III. Of the Courts of Justice of Suites of Counsellours of the Judges of Writs Pleadings the Termes of Art Hotomans censure of Littleton the common Lawes may easily be digested into method their principles and excellency in severall respects mercy c. confirmed by Parliaments and testimony of others not of the profession the professours honourable NO Nation can compare with us in the Justice and Majesty of our Courts Courts where so generall is their extent and power to redresse wrongs every man let the injury be what it could and done by whatsoever great injust man might be righted nor are there any Supernumeraries amongst them Courts of no use but to vex and intangle The first judges posito modo praetor aratro are said to give Lawes to administer Justice to the people while the Plough rested but upon the same reasons which make Lawes at first as is said plaine and simple multiply Courts must needs grow more numerous In the Saxons times besides the lesser Courts before discoursed of to relieve men at their owne doores There was but one high Court of Justice ever moving with the Prince which judged as Mr Lambard out of those Lawes of appeales forbidden where Justice might be had at home not only according to Right and Law Sup. 59. but also after equity and good conscience the words of the Lawes are unlesse he cannot find right at home or right be too heavie t Ll. Edg. c. Ll. cnum 16. in this Order faies the same Mr. Lambard and in these two sorts of Courts was all Justice administred till William the Conquerer w Arch. 20. and after him this Court continued under the chiefe Justice of England ordinarily which great Officer the first man next the King alone had the power of the Chief Justice of the Pleas of the Crown of the Chiefe Justice of the Common Pleas till the nineth of King Henry the third according to that of Magna Charta the Common Pleas shall no longer follow the Kings Court though this Charter was before granted by King John in the 17. of his reigne it should seem by the charge against that much wronged gallant man Hubert de Burgo chiefe Justice in King Iohns time and in the time of Henry the third after the death of William Earle of Pembroke chiefe Justice 4 H. 3. that this huge office was not shrunk that the chiefe Justice was then whole and intire x Ma. Pa. addiâ— 149. besides the pleas of the Crown and common pleas he had the power of the chiefe Baron of the Exchequer and of the master of the wards y Addit ubi sup and sometimes commands armies z Ma. Pa. 193. an imployment too much for one man and businesse too much for one Court Upon which reasons distribution of the jurisdiction was necessary which flowing after from one Fountain by many streams into several Courts is no small ease to the people and this additional alteration is the greatest improvement imaginable Hence are derived the Benches the Chancery and Exchequer of the excellency of which and other high Courss pipes communicating justice with more speed and facility over England I wil say something but briefly my ayme being to make a tryall whether those who are not to be moved else by any other way will trust and yield to their own eyes before which I would lay things as plainly and as openly as I can and shew them that if justice onely be desired the pursuit of which lawfully and civilly is faire and honest here it is to be had it can never be deficient if the execution of things be answerable to their institution Here it is commanded That justice be administred as well to the poor as to the rich without any respect to be had of persons a West 1. c. 1. Here is said It is provided agreed and granted that all men as well high as low shall have and receive justice b Stat. Marlb c. 1. The times had been unruly before and many of the great men saies the Statute would not submit to the justice of these Courts they would be judges in their own cases distrain men grievously and take such revenges as they thought fit c Stat. Marlb ibid. Here as another Statute The Justices
the undoing of both of them Gentlemen of a good and ancient family commanded the Lord Chancellour to assemble all the Justices of England before him upon conference to give their resolutions Which they did one Justice disagreeing Chudleight case in the same report is said to be so difficult and of so great consequence it was thought necessary that all the Justices of England openly in the Exchequer Chamber upon solemn Arguments should show their opinions in it where the chief Baron and Justice Walmesly are dissenters as also Justice Gawdy in part Till the first of king James there were but four Judges of either Bench and many times as the same Lord Cook k 4. Rep. Pâ—af in cases of great difficulty the Judges being equally divided in opinion the matter depended long undecided for prevention of which this King added a Judge to either Bench. Retractations may be allowed in law as well as in divinity a man may differ with himselfe believe and apprehend truely and ingenuously and with Judgement this way or that way and after when he shall hear the reasons of others and the same case debated solemnly by the most grave most wise and most reverend of the profession not onely startle and doubt but but believe and like the contrary of what he liked before truly and ingenuously still without any blemish of dishonesty or falsenesse to be stuck upon him for it truth is said to be the adaequation of the speech with the species and if here any miâ—take be as there may the falsenesse is in the notions not in the man who speaks and thinkâ— he speaks truth I know no reason where there is no leading judgement to sway why the professors of the lawes should certainly be supposed to know the right and on which side it is as if infallibility were so ready or likely to be where as the Mirrour joyns them There is no law nor usage and where there are no presidents to direct Cases not being included in any words of law may be compared with the reasons of other cases according to similitude fancied and opinion so produced is but an incertain and weak knowledge thus or thus which yet may well be otherwise every man knows how far the Topic argumentation comes short of the necessary further as Sir John Davies When is right or wrong manifested upon the comencement of a suit before it is known what can be alledged and proved by either party The Councellor when he is first reteined hears onely one part of the matter and that also from his Client who ever puts his case with the best advantage for himselfe after pleading of the parties when they are at issue when they have examined witnesses in course of equity or are discended to a tryal in course of law after publication and hearing in the one cause and full evidence delivered in the other then perhaps may the Councel of either side dicern the rigt from the wrong and not before But then are the causes come to their catastrophe and the Councellours act their last part l Praef. ded f. 6 7. Thus as there are diversities of opinions amongst the professours of the lawes we see there are invincible reasons why sometimes there must be such diversities and I would gladly know where there is any general agreement of mindes A great man of the Clergy but no great lover of the laws or lawyers notes one Judge very hastily determining against others do not Councels often do the same the later quite thwarting those which went before and what he grants are not Divines divided against Divines not only in things of Ceremonie but of Faith If we look upon other Arts and Sciences we might think all things made from Heraclitus his principles that strife was the father what dissonance of opinions what knots never to be untyed sayes the incomparable Petrarch upon the discourse of discord are there amongst the Philosophers Who can number the varieties of their Sects what conflicts amongst Rhetoricians what discords of all Arts what clamours amongst the Lawyers those of the Civil Imperial lawes how well they agree the immortality of causes proves Sick men can witnesse what concord there is amongst Physicians what unlikenesse of mindes is there about things sacred and Religion where the differences are oftner tryed in the field then in the Schools m Petr. de remed utr fort 429. l. 2. By no other law is it said is unlawful maintenance Champerty or buying Titles so severely punished as by ours By what other law askes the most learned Knight is the Plaintiffe for false clamours or injust vexation or the Defendant for pleading a false Plea amerced the amercements in Magna Charta of which hereafter were instituted to deter men from injust suits and defences n 2 Inst 28 the French impost of 100 sous upon the Processe is thought injust yet sayes the Republique never was any so necessary in this Realm where there are more suits then in the rest of Europe which have sprouted chiefly from the time of Charles the sixth when by Edict the ancient custome to condemn those in costs who had lost the cause was cassed o Bod. Rep. 889. By the Saxon lawes he that denyed another his right either in bocland or folcland before a Judge without any right forfeited to the king 30s so the next time the third time the kings oâ—er hyrnysse 120. s. for his contempt p Ll. Ina c. 8. Ll. Edu sen c. 2. Ll. Cnuti c. 7. such lawes as these which might fright troublesome spirits are of high necessity yet I think where mens own Consciences restrein them not the punishment of laws would not prevaile with all men Nor can we expect any continual peace from vexatious suits nor any security from delayes deceits in them till a Christian generous honesty diffuse it self every where and there be a general perfection of charity and love in every man which is not easily to be hoped for France may be famous for its sprightlinesse Spain for its gravity Germany for the arts what clime is renowned for any such honesty Unles the new Atlantis can be found again and its Idea of a Commonwealth the Magick Region of the Moon throughly discovered and it lye hid there Or * Euphorn Barclaie may be believed of his Lusinia so unlike the whole world beside Of which that it breeds men worthy the genius of the place and of their own fortune for so he says if it be the Country some think he means he may be credited for the rest of the innocency piety of the people it is more then I can say of my own knowledge and I would lead no mans Faith where things are not plain and certain Other causes of multiplicity of suits in these latter ages are observed by the Lord Cooke to be first peace noted before * c. 2. In the reigns of the kings Edward the 3. Richard the 2
the Law yet no where in it I think once naming our most reverend Judge Litleton He cals the Laws in just and the Lawyers or interpreters of them ignorant speaking of those of the time of William the 1. upon a supposition that the most of the Lawes were Normanne He and his book are said to be of great account by Dr. Cowel in as much esteem with the students of the Common law as Justinians Justitutes are with the Civilians saies the famous Clarencieux The Lord Coke sayes This is as absolute a booke and as free from errour as ever was writ of humane learning y Pres upon Littlet r. 2.67 r. 10. Epist according to the Judgement of a Court before Litletons word wil passe every where ipse dixit carries things as Master Fulbec Litleton is not the name of a Lawyer but of the Law it selfe more then can be said of any Civilian one or other Dr. Cowel blames his Civilians much that shey were not onely guests and strangers but infants in their own Commonwealth that the most know as little of our Law as the common people and I cannot imagine how by a sight of Litleton Hotoman should know much it is not unreasonable notwithstanding all his learning to suppose with Littleton alone he did not understand Litsleton it would be taken as justly it might either for foolishnesse or malice indeed the greatest possible for the highest impudence if any man so much a stranger to the terms and Language at the first sight meerly by guesse should as slightly condemne the Pandects full of contradictions and needing exposition and amendment as is before shewn out of the Civilians themselves whereas Littleton is as fundamentall as any Law can be and every sentence of his is a principle Nor can any man but wonder at the expression of malice and study to calumniate the book through by which we may see how it is understood being onely a bare collection of special cases under their titles or heads authentick and binding because it is made and composed partly of the customes of the ages before partly of the judgements of Courts and of the Statute lawes without any controversie with any man without any reflexion upon any other law upon any mans person or works saving that once he saies he had heard say There was one Judge Richel who setled an estate intaile with perpetuall remainders with that clause of perpetuities since used but against law that upon alienation of the eldest sonne c. his estate should cease c. meerly ayming at the publike good which makes me thinke here must either be a great mistake in the sense or of the book it selfe Litleton then was not Litleton now The uneven ruggednesse of the French wil not suffer any man to be eloquent Laws as Cicero ought to be be deare unto us and to be prised not for the words but for the publike profit and the wisdome of the Lawgiver Yet is not the stile of Litleton rude but plain as the best French then was plain enough neither neat nor quick as will appeare by the Lord of Argentons stile noted before who lived in our Judges age and writ then most befitting a Judge and the gravity of the subject To the absurdity of the writing part of the invective charged in the slander which is true as is shewn from testimonies of the side of the old glosses I wil reply but this it should have shewn how and where otherwise this is a generall charge which has nothing in it but the malignancy of an enemy from whose rash and unjust censure the happy memory of our Judge may justly appeale to those who know him It is a childish impotency of the mind out of vainglory to calumniate illustrious personages farre enough either from honesty or discretion The haughtinesse of Pompey to raigne alone is with the most nor is it fair to bequarrel and hate all other Nations because they drink not the Loire or Rosne or submit not to I know not what universality as if Alexanders world were returned again not to be ruled but by one Sun What concludes here and makes up the aggravation is extended farther by others and made a cavil it is no more against the Laws That our Laws want method Method never yet so much as a pretence to abolish laws How easily the Pandects may be matched for method I shall demonstrate by the order of the Common law of England After the Curiate laws of Romulus those of Numa concerning Religion the laws of the other Kings all taken into the books of Papyrius and therefore called the Civil Papyrian Laws the twelve Tables followed then the Flavian Helian and Hortensian the Honorary Law of the Praetor the lawes of the people called Plebiscita the decrees of the Senate called Senatusconsulta the law of the Magistrates and customes the laws of the Princes frō the law Royall the opinions of innumerable Lawyers many of which are recited by the second Law of the original of the Law their volumes were huge saies the Emperour z Proaem Instit 5. There were as the glosse three hundred thousand Verses Laws or answers two thousand books and many other Laws so confused so infinitely extended they were not to be shut up in the capaciousnesse of humane nature Out of all these were the Pandects composed and digested which are wel digested but as is said the Code and the Authenticks are not How much more easily might the Common law be ranged into an exact method may quickly be found not being composed of any such bulk not drawn out of any thousands of such answers and books inclosed in a dozen or two of small volumes exceeded in the quantity by the present Imperial lawes hundreds of times over the foundations of it as of all just and civil Lawes are the lawes of God of nature and reason and of Nations as Dr. Cowel Our Statutes and Customes are derived as all just laws else and consentaneous to reason from the Law of nature and of Nations a Inst jur Angl. 25. And again The lawes of England as others over the Christian world are far enough off from the civil Imperial law yet are they tempered seasoned with the equity of it b Praef. ad Inst In his Epistle dedicatory before the Institutions They are not far enough off * v. Chap. 2.50 here as very probably some of these Imperial lawes might come from Rome to the Saxons with their Religion There he speaks thus After I bad spent some yeeres in the comparison of these lawes viz. the Common and Imperial laws I found the same foundations in them both the same definitions and divisions of things rules plainly consentaneous neer the same constitutiom the difference onely being in the Ideome and method Our Common law is nothing but a mixture of the Roman and Feudal laws and in his Epistle to the Reader before his Interpreter he sayes He has in
exemptions By which the Clerks were to be for ever beyond the free years of Pompey dispensed with freed from the Laws The most reverend Chief Justice Fineux in the Case of convening Clerks of which before asks the Archbishop of Canterbury who would have such offenders delivered to the Ordinary if this were granted what he would do with the parties so delivered you have no authority says he by the Law to determine matters of Felony to which no answer was given b Kell 7. H. 8.185 The Saxon founders and indowers of the most of our Churches left never-dying Monuments of their Faith and good Works The Laws of King Aethelbert the first Saxon King begin with the Church and make provisions for that c Ll Aethelbertic 1. King Jua hath Laws concerning the life of the Clergie Baptism of Infants hallowing the Sunday The Churches sceat or part very unjustly translated Church seed Sanctuaries striking in the Church d Ll Ina. c. 1.2 3 4 5. 6. v. ll Alfred c. 2.5 6 21. ll Ed. sen c 7. King Aethelstane for Tythes the teoê§e tenth e Ll. Aethelst proem So have the Kinge Edmund and Edgar f Ll. Edm. c. 2. Edg. c. 2.3 The same Aethelstane concerning Church-Burglarie g C. 5. Edmund again concerning repair of Churches h C. 5. King Cnut for the peace of God and the Church i Ll. Cnut c. 2.3 The Councel of Aenham a Lay Councel Commands that all men defend Gods servants and honour them k Ch. 30. ll Cnut c. 4. As much respect was to be given the Priest as the Thane l ibid. c 2. The head of the Mass Thegne and of the Wordly Thegne or less Thegne are valued alike m Ll. Aethelst Be Æ¿erum What priviledges the Church injoyed in its possessions may be seen by the pieces of Charters before recited and the plea of Pinnedene I will note one Law alone of the Saxons for the Churches liberty which is this aenig man heonan foƿð cyrican ne þoÆ¿ige Let no no man make the Church ser vile impose any servitude upon it n Concil Aenh c. 9. Let peace be binnaen Æ¿agum within her walis o Ibid. Magna Charta begins We have granted to God c. That the English Church be free and have all its Rights and Liberties whole c. of which the reverend Commentator says thus Ecclesiastical persons have more and greater liberties then others to set down all would take up a whole volume c p Mag. Ch. 1 Com. 3. v. 2. R. 2. c. 6. R. 2. They have this priviledge not to serve in person in War To be quit of Tolles and Customs of Average Pontage Paviage c. for their Ecclesiastical goods and if they be molested there is a Writ given for their discharge by which it appeareth says the same Commentator This was the ancient Common Law of England There is a protection with the clause Nolumus where they feared their beasts or goods or those of their Farmers might be taken by the Kings Ministers They are discharged of purveyance for their own proper goods No distress can be made in the ancient indowments of the Church by any Officers whatsoever Upon a Statute acknowledged by an Ecclesiastical person his body cannot be taken If he had not paid upon a recognisance at the day Nolevarifacias lay at the Common-Law if the person had nothing but Ecclesiastical goods c. Where a Capias lies and the Sheriff returns that the party is a Clerk beneficed having no Lay Fee no Capias should issue to take the body but a Writ to the Bishop to cause him to come and appear Otherwise had not the word Beneficed been in the Return No Ecclesiastical person is bound to appear at Tourns or views of Frank pledge The Church hath its place in the Parliament Writs Though it be last named it is the first says the Lord Coke in intention q 4. Jnst 9. The Magna Charta in the Title speaks thus For the Honour of God bealth of our soul exaltation of holy Church and amendment of the Realm The Title of the Statute of Confirmation of that and the other Charter is Know that we to the Honour of God and of Holy Church generally the Church leads r 25. E. 1. 1. E. 3. 2. E. 3. 5. E. 3. 15. E. 3. 31. E. 3. 47. E. 3. 1. R. 2. 2. R. 2. 5. R. 2. 6. R. 2. 7. R. 2. 13. R. 2. 21. R. 2. 1. H. 4. 4. H. 4. 8. H. 6. 28. H. 6. 39. H. 6. 1. E. 4. 3. E. 4. 1. R. 3. 1 H. 7. 2. H. 7. 3. H. 7. 4. H. 7. 11. H. 7. 12. H. 7. 19 H. 7. 1. H 8. 3. H 8. 4. H. 8. 5. H. 8.6 7 12 23 24 25. in Richard the thirds Parliament too Weal Common-weal Weal-publick and profit of the perple are ordinarily found in the Titles of the Statutes If we consider the Justice Equity Mercy and goodness of the Laws for the tree of Piety is known by this fruit the only scope of them being every where to relieve the poor and oppressed and to protect the innocent the Religion and Devotion of our Forefathers will plainly be visible in them as their civility and humanity are whose memories we ought to honour unless we will teach our Nephews how to neglect and sleight our selves and we cannot honour them more then by the imitation of their plain honesty and constancy it is rather Tyrannie over others then presumption to yeild nothing to all men else and to look that all men else should yield to us this we ought to do And although fortune may have too much power over virtue though nothing be got by it yet after death and corruption of the parts mortal vertue perfumes the grave it ennobles and by example sometimes refines the posterity leaves a taste of Immortality behinde it the Great mans name cannot outlive his Marble it moulders away or is plucked up with it the Good man is his own Monument he lives every where who doth not need an Epitaph Victory over our selves over our own passions private interests pride vain-glory rashness levity is the most glorious and most honest victory such a Conquerour would undo Caesar and such a true line Here lies a Good man who loved his Country and never broke the Laws makes the Stone or Brass more rich and precious then those Aegyptian Wonders which have survived their Founders who is quite forgotten and buried in them What will much content some no doubt by Magna Charta Mala tolneta all evil Tolls Customs all Praestations and Impositions for Merchandise Imported and Exported are taken away Å¿ c. 30. By the Statute of the Confirmations of the Charters the Magne Charta and that of the Forrests There is a Grant so are the words Not to take aids or Subsidies but by comman consent and for the common profit t c 5
6. And again there in the Chapter of the Maletot u c. 7. The ill Toll or Charge of 40 s. upon every sack of Wool is taken away where are these words We have granted for us and our Heirs not to take c. without common consent and good will By the Statute called de Tallagio non concedendo No Tollage nor aid was to be set or levied but by common consent w 34 E. 1. All new Offices with new Fees are within this Statute x 2 Inst 533. No man is to be charged by any benevolence which is condemned by a Statute as against the Law y 1 R. 3.2 He who judges things impartially must confesse the English ever to have been the most happy and most free of all people while they enjoyed the benefit of these lawes and are likely yet to continue â—s happy under them for the time to come But as some there are as is noted who will allow no authority but their own not reason it selfe nothing without themselves so some there may be rather for a Sect then the truth more willingly following a great name then reason chusing number rather then weight and worth carryed away with authority as they call it such as will yeeld to nothing else If any such there be I will please them they shall have authority with truth weight and worth together Not that I bring in other vouchers as if I refused those or thought them not sufficient who as have shown before are the true and undoubted Judges of the lawes In the Councel at Oxford of the English and Danes held in the sixt yeere of King Cnut The English and Danes are said to agree about keeping the Laws of King Edward the first Wherefore they were commanded by King Cnut to be translated into the Latine Tongue and for the equity of them those are the words to be kept as wel in Denmark as in England z Mat. West flor Hist l. 1. 311. Wigorn. 311. Although it is said the English laws * Gloss ver Lex Dan. were silent spake not in the times of the Danes which might generally be true yet in the reigne of of this King it was otherwise as appeares by his excellent lawes of Winchester full of piety and justice a Concil saex 569. These were the famous lawes observed by King Edw. the Confessour after many of the laws of K. Aetheldred many of those of the renowned Councel of Aeaham under the same Aetheldred are amongst them In the Epistle of King Cnut writ to the English when he was coming from Rome He saies He bad vowed to govern the Realms subject to him justly and piously and judgement in all things to observe At his returne saies Malmesbury he was as good as his word For all the Laws by the ancient Kings and especially by his ancestour Aetheldred given under penalties be commanded to be observed for ever which now men swear to keep under the name of King Edward not that he ordained them but because he observed them b Malmâ—b de Gest Reg. l 2. c. 11. p. 75. How much the ancient Englishman loved and prised the Common lawes is evident by what has been before said concerning the Magna Charta and the setling them And it is more evident by the odiousnesse which subversion and the subverters of the Lawes have lain under in all ages There is a Writ in the Register as before to take the impugners of the Lawes and bring them to Newgate c Regist 64. In the complaint of the Bishops of Henry the thirds reigne against the strangers Poictouins his favourites are these words As also because the Law of the land sworn and confirmed and by excommunication strengthned this was the Magna Chaeta together with justice they confound and pervert d Ma. Pa. 396. The Earle Marshall Richard complaines of these Poictouins to this King as men who impooy themselves to the oppression of the Lawes and liberties e ibid. 384. Stephane of Segrave the chiefe Justice is charged in another place with corrupting the laws and introducing new ones f ibid. 392. The same King is told by those Bishops That if the subjects bad been governed according to justice and right judgement of the land c. those troubles had not hapned The Statute banishing the Spencers the father and son has this Article To the destruction of the great men and of the people they put out the good and fit ministers and placed others in their room false and wicked men of their Covin who would not suffer right or law to be had and They made such men Justices who were not at all conversant in the law of the land to hear and determine things Empsons indictment runs Nor having God before his eyes c. falfely deceitfully and treasonously the Law of England subverting g 4 Just 199. The Articles against Cardinal Wolsey before mentioned begin Hath by divers and sundry waies and fashions committed high and notable and grievous offences misusing altering and subverting the order of the lawes His articles are there by the introduction said to be but a few in comparison of all his enormities excesses and transgressions against the Laws These Articles were subscribed by the Dukes of Norfolk and Suffolk the Marquesses of Dorset and Exceter the Earls of Oxford Northumberland Shrewsbury the Lords Fitzwalter Rochford Darcy Mounjoye and Sandys c. all which as those others taking subversion to be so heinous an offence must needs be imagined to esteem the Lawes highly Lewis of France invited hither by the Barons in King John his time in the entrance to his new principality is made to sweare to restore to every of them the good Lawes h Ma. Pa. 282. As others to maintain ad keep the institutions of the Countrey Those who desired a stranger for their master would not be governed by new and strange laws amongst the covenants of marriage betwixt Queen Mary of England and Philip the second of Spain there is one to this effect That he the King Philip should make no invasion of State against the laws and customes of the Realm neither violate the Priviledges thereto belonging i Hollinsh p. 1118. And amongst those covenants of marriage treated betwixt Elizabeth of most happy memory and Francis Hercules of Valois Duke of Anjou the same care and warinesse is had one of the conditons is That the Duke shall change nothing in the laws but shall conserve all the customes of England k Comd. Eliz. 338. The Lord Treasurer Burleigh the Earles of Lincoln Sussex Bedford and Leicester Sir Christopher Hatton and Sir Francis Walsingham were delegates for the Queen men too wise to tie themselves and others to preserve those things which are neither worth a care nor being The Statute 28 of Edw. the 3 l An. Dom. 1363. speaks thus The good ancient Laws customes and Franchises of the said Realm The