appear on Record the Party must produce the Iudge's Seal which may be required by Writ and cannot be denied no not in such Exceptions as the present Court do over-rule And for Enrolling Records the same Statute provideth That the King should not Erect Offices or Elect Officers for Enrollment Fot that by the Common Law this did belong to the Courts themselves and Judges therein As to the Sheriff also to Elect the County Clerk for Enrollments so that the King himself could not Elect him as we find in Mitton's Case So punctual is our Law in all concerning Rolls Enrollments and Records Which is also the Law of Nature and for many Reasons As for that of Appeal to which all Courts on Earth must willingly submit Nay Heaven it self admits Appeal from its justice to its mercy so it would to Justice also by some Writ of Error if it could commit an error But however that its Judgments may be cleared to be just it also proceedeth by Record For God hearkeneth as the Prophet saith when ought is good when they meet and speak well together a Record is made and bound up as a Jewel and when evil also some are Watchers to Record it For the Books shall be opened and we shall all be judged by the Record of Heaven and our own Consciences which are now foul Draughts but shall then be as fair and clear as those of Heaven it self But in Courts on Earth if there be no Records there is scarce devisable a legal Traverse or Tryal whether all be right or appeal if any thing be wrong For what Appeal can any man make from that which doth not appear but it is only a Transient Air or Breath which may as soon be denied as it was spoken How can Errors not appearing be corrected or amended by the Parliament it self or any other Court but onely that keepeth Records of all our thoughts as much as of our words or actions I may be tedious in shewing how our Law hath ever allowed Appeals in Ecclesiasticals They were agreed in the Assizes of Clarendon in opposition to Appeals Foreign which were first attempted by Anselm as some affirm but the Date is later And the Lord Dier of Appeals is now printed in the 4th part of Institutes The Judgment of Delegates on such Appeals is called definitive And yet not so but that it may be all redressed by a Court below the Parliament for which we have the Commission of Review granted upon the Delegates nay and upon High Commission it Self as by a Clause in that Commission appeareth To which may be added Killingworth's Case and divers others Of the Court Admiral much I might add from the Laws of Olerom in Richard the 1st and the Rolls of Henry the 3d. and Edward the 1st of which also the Commentator on Littleton's continual Claim and the 22 Chapter of the last part of Institutes How it lieth open to the common Law and to daily Prohibitions may be fully seen in its Complaints to King Iames which were as fully answered by all the Judges It is no Court of Record and so did all the Judges declare in 8 Iacobi yet it must keep Records enough to ground an Appeal which lieth from thence as from Courts Ecclesiastical to Iudges delegate of which the 8th of Elizabeth and other Statutes County Hundred Baron Courts and those of Antient Demesne with all Close Writs are not of Record The Sutors are the Iudges as was said before in Cases not their own And some have thought they did proceed much by fancie without legal Proof and Witnesses till the great Charter commanding all Bayliffs to put no man upon Oath without faithful Witnesses But we have found the Charter long before King Henry the 3d. And in that Phrase of Bayliffs which in France are Governours and Magistrates as in eldest Towns or Cities with us some great Lawyers include all Iudges as Fleta with the Mirror which also calleth Coroners the Peoples Bayliffs and the Sheriffs Returns are de Baliva These inferiour Courts being not of Record held petty Pleas of Debt or Damages under 40 s Antient Demesn had other prviledges but not of forceable Trespass Vi Armis finable to the Crown Yet these also must keep Copies or some such Records as may suffice for Appeals For they may be questioned and their Proceedings being denied shall be Tryed by Iury and upon their judgments lyeth a Writ of false judgment not a Writ of Error But in the Case of Redisseison the Sheriff is Iudg by the Statute of Merton and a Writ of Error lieth on his judgment But in Case of Debt Detinue Trespass or other action above 40 s. where in the County the Sheriff holdeth Plea by force of a Writ or Commission of Iustices the Sutors are still the Iudges and no Writ of Error but false judgment lieth on them Nor doth the Coroner's judgment of Out-Lawry in the County Court forfeit Goods till it be returned and appear on Record Nay the Coroners Certificate on a Certiorari did not disable the Out-Law although the King might seize his Goods till the Return of the Exigent Quinquies Exact But a Writ of Error is proper to Record and from Record and a Plea of Nul tiel Record is not tryable by Witness or Iury but onely by it self in a Court Record Such are the Sheriffs Turns and from them as from Counties Hundreds came the Court Leets which may be held by prescription against the Great Charter In which Leets the Steward is Iudg as in the Turns the Sheriff and Bishop was till the first Norman who by Parliament exempted the Clergy as was touched before But the Laws of Henry I. bring them again into the Seculars So also the 10th of Marlbridg and before it the Laws of Clarenden for all Barons or Tenant in Capite to attend the Great Court till Sentence of Life or Member which continued long in the Parliament also The Turn enquireth of Common Nusance and of Felonies de Furtis medletis whence our Chance or Chaud Medly hot Debate or sudden Fray see the Notes on Hengham but not of Murder or Death of Man which alone of all Felony belongeth to the Coroner He was a very antient Officer and ought to be made a Knight for which the Register and Rolls of Edward the 3d. where a Merchant chosen Coroner was removed quia communis Mercator He must have a good Estate and might receive nothing of Subjects fot doing his Office But by late Statute he hath a Mark on Indictment of Murder yet upon Death by misadventure he must take nothing See the Comments on the 1st of Westminster The Coroner's Court is of Record and he may take Appeals as well as Indictments upon view of the Body and must enter them but cannot proceed but deliver them up to the Iustices which is as antient as the Great Charter for the next Gaol-delivery or the King's Bench sometimes also he is locum
tenens to the Sheriff and he standeth when the King dieth When also so many think there is no Sheriff but it may be more considered I must not stay in the Court of Peepoudres incident to every Fair or Market as a Court Baron to a Mannor although it be a Court of Record and a Writ of Error lyeth on its judgment for which Iones and Hall's Case in the 10th Part of Reports and in the 4th Institutes I need not speak of Writs of Error from the Common Pleas to the Kings Bench from the King's Bench to the Exchequer-Chamber and from thence as from the King's Bench also to the Parliament or of the known Statute of Henry the 6th making it Felony to steal withdraw or avoid Records or any parcel of Record But of no Records is the Law more punctual than in of extraordinary Cases of Oyer and Terminer which were more private oft and less fixed being transient on emergent Cases which yet being heinous seemed to require most exact Records especially because there might be Appeal so just and needful if the Judges exceeded but one tittle of their Commission If it were discontinued or expired then the Indictment and all Records were to meet in their proper Center at the King's Bench but in other Cases Records of Oyer and Terminer were sent into the Exchequer So in Edw. the 3d. As in Elizabeth Results on charitable uses and the like were to the Chancery by Act of Parliament The great Seal was the Soul to inform and actuate the Body of Records in all exemplifications from the Rolls in all Writs Pattents or Commissions and the rather also that by this nothing of moment might be hudled up but duly weighed and considered while it passed so many hands and judgments as it should before the Sealing Nor shall I add that an Act of Parliament it Self is not pleadable in a Court of Record but from Record or under the Seal whence the old custom was to remove the Records of Parliament by a Writ of Certiorari into the Chancery thence by the Lord Chancellor into the Kings Bench and thence by a Mittimus into the Common Plea and Exchequer with an usual Writ commanding all the Courts to keep and observe such Acts of Parliament which of Old were Proclaimed by the Sheriffs and were put under the Seal as we may see by the Proclamation now printed among the Statutes of Edw. the 3d. and they were not hudled into Print in those Days not of such vertue in Print as on Record and under the Seal For there were not then such Printers or Copiers that without much caution our fore-Fathers durst trust with all their Lives and Estates which by one dash of a Pen the change of a not a with a to a for or a from might be soon destroyed or enslaved Much less then should a Court of Record be Created but by Record yea and that be shewed under the Seal also For when the Seal was moulded our Ancestors ordained that no Jurisdiction should be grantable but under the Seal which should be known and obeyed by all the People as the Mirror discourseth at large In Edw. the 4th it was resolved by all the Judges in the Exchequer-Chamber that no man could be a Iudg or Iustice by Writ which was also Sealed but by open Pattent or a publick Commission But the Lord Chief Iustice of England hath of late no such Commission or Pattent yea a Sealed Writ and of Old he was also Created by Pattent till about the end of King Henry the 3d. if good Authors deceive me not It seemeth also somewhat disputable whether he were not included in the Statute of Henry the 8th for Commissions to the Judges by Letters Pattent under the Seal However the words are plain enough for Iustices of Eyre which of Old were also by Writ as those of Oyer and Terminer but now not to be but by Comission or Pattent under the Great Seal Which Commission should also be read and shewed in Court lest there be some kind of Demurrer or exception unto jurisdiction which hath been in some Cases at the Kings Bench and may be by Law to all now Judges by special Commission except it be produced under the Seal if the old Books deceive us not who do do not onely ascribe all jurisdiction to the Seal but in all legal exceptions ever admit of that to the Iudg if he be a Party or have not jurisdiction or be otherwise incompetent That the Parliament also will never Erect or Create any Court of Record but by Record and open Commission under the Great Seal I do the rather believe because the Seal is so proper and peculiar to the Parliament being made by common consent of which the Mirror and others at large and by such common consent used and committed to the special care of the Chancellor or Lord Keeper of England as he was called for keeping that which our Fathers esteemed as the Kingdoms Key or Clavis It is well known how King Henry the 3d. was brought to acknowledg That among all great Officers the Lord Keeper or Chancellor did especially belong to the Choice of the Parliament and Ralph Nevil among others refused to yield up the Seal to the King when it was demanded saying that he had received it by the Common Councel of the Kingdom and without their Warrant he would not deliver it of which both Matthew Paris and Matthew of Westminster From the continual use of this Seal in Parliament it is the Law and Custom of the Kingdom that the Lord Keeper shall have place in Parliament still to be there with the Sael although he be often no Peer and have no Vote but for making and Sealing of Charters Pattents Commissions and Writs framed by Parliament For although the Register made or continued by Parliament be now so full that there be little need yet the framing of New Writs was a great work of Old Parliaments as appeareth in the Books and Statutes as in that of Westminster the 2d de Casu consimili And as if the Parliament had made no Laws at all but onely New Writs the Old Modus brancheth out all the Laws of Parliament into Originals Iudicials and Executives which all know to he the Division of Writs Those especially de Cursu drawn by the Cursitors for Brevia Magistralia were let to be framed by the Masters of Chancery as appeareth at large in Bracton and Fleta and in the Oath of the Six Clerks or other Clerks of Chancery in Ed. 3 with that of Ed. 1. de casu continili in which Statute it is asol provided that if the Masters could not agree in framing such a new Writ they might if they saw cause respit the Parties till the next Parliament that so it might be formed by Advice of all the great Lawyers of the Kingdom Yet besides this of making and sealing of Writs there was another work and great use of the Masters of Chancery
Parliamenti sedebunt nullus stabit sed quando loquitur ut omnes audiantur à Paribus And again Nullus solus potest nec debet recedere à Parliamento sine Licentia Regis omnium Parium Parliamenti hoc in pleno Parliamento Ità quod inde fiat mentio in Rotulis Parliamenti It may be possible That Bracton and Fleta with others may use the Phrase Pares in such a sence when they say That the King or his Commissioners should not judge and determine of Treason but Pares Which may be added to the 25 th of Edw. 3. reserving Treason to Parliament where of Old it seemeth only determinable so that The Mirror would not have it Endicted but by Accusation and in full Parliament as in King Edmund's Time c. Cap. 2. Sect. 11. and in Edw. the 3 d it was enacted That Offences of Peers and great Officers and those who sued against the Laws should be tryed in Parliament And although now the Phrase be given to all the Lords of Parliament yet it was most or only proper to the Earls whom by Law and custom the King styleth Consanguineos and he might style them his Peers or Companions as in Latine Comites So Bracton Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum and in another place A Societate Reges enim tales sibi Associant ad consulendum regendum Populum Dei and the like is in Fleta Comites à Comitiva dicuntur qui cum viderint Regem sine Freno Frenum sibi apponere tenentur c. which is also in Bracton The Mirror is yet clearer although the King had no Equals yet because himself or his Commissars might not be Judge it was provided by Law that he should have Companions to hear and determine all his Torts c Aux Parliaments and those Companions were called Countees Earls from the Latine Comites So also Sarisberiensis cited before in Hen. 2. Comites à Societatis participatione dici quisquis ignorat ignarus est literarum c. some will have them Comites Socii in Fisca because of old some Earls had a third part of profits accrewing by Pleas and Forfeitures in their Counties as the Laws of the Confessor and Mr. Selden in his Comes but he will also grant their name à Comitiva potestate rather than from such Communion of profits That the old Sheriffs also who were Vice-Comites did come to Parliament appeareth in the Ancient Writs and Histories and yet the Barons seem to be the Kingdoms Iudges and the present Earls may seem to sit in Parliament but onely as Barons who are now all Peers and Lords and Parliament But although the Lords were the great Iudges of the Kingdom and of all Members thereof yet it is well known that in full Parliament as old as Edw. 3. they did not only acknowledge but protest that they were not to Iudge the Commons in Cases of Treason and Felony being not their Peers How it was in Rich. the Second may be seen at large in the Rolls and Records now printed in Edward the Second the Commons proceeded by the Judgment of the Lords for which also the Fructus temporum cited before may be added to all in the Road. Appeals and Writs of Error were from the King to the Lords in Ecclesiasticals that touched the King they were to the Spiritual Prelates Abbots and Priors of the Upper House by Act of Parliament in 24 Hen. 8. till which it may be Temporal Lords had also Cognizance of such as well as Temporals And Writs of Error in the Parliament were Judged by the Lords for they came from the Kings Court his Bench or his Exchequer and if Errors had been in the Common Pleas or below it they should not be brought into Parliament but to the Kings-Bench and from the Kings-Bench as from the King not otherwise they came to the Lords and although there was a formal Petition for removing the Record from the King it was but of Course and the King could not deny it Which we found granted by all the old Lawyers and Historians as I shewed before and by the grand Master and Patron of Law King Edw. 1. in Britton because none may Judge in his own Cause Therefore in Causes where our self shall be Party we do consent que N. Court soit judg Sicome Counts Barons in Temps de Parliament In the Laws of Hen. 1. one of the Chapters beginneth thus Iudices sunt Barones Comitatus qui liberas in eis terras habent for in those times Barons were by Tenure only not by Patent that I know till Beauchamp of Holt in Rich. 2. nor by Writ that I can find till the Barons Wars but K. Johns Charter is to Summon Comites Barones Regni majores sigillatim per literas N. But all that hold in Capitae by general Summons forty days before the Parliament and that Negotium procedat ad diem assignatum secundum consilium eorum qui presentes fuerint quamvis non omnes submoniti venerint and the Summons of Delinquents or Suitors in Parliament was to appear and abide the Judgment of the Court not of the King but of his Court for the King is Father and not Judge of his People in his proper Person as was shewed before and all the Books agree that he must Commit his Jurisdiction unto Judges in the Courts of Justice and when he might assume great Offices into his own Hands by Parliament in Edw. the third all Judges were expresly excepted and the Judges Oaths and several Acts of Parliament require them to proceed according to the Law notwithstanding the Kings Command or Seal against it and the Register affordeth a Writ to Supersede or Revoke any such Seal from the King himself to any of the Judges And the Lord Chief Justices as the Lord Chancellor and Treasurer were Chosen by the Kingdom as we found before in the time of Hen. 3. how much more then should the Lords of Parliament be made by Parliament for else they be the Kings Commissioners So the Roman saith our German Fathers chose their Lords in Common Council to be Judges in iisdem Conciliis Eliguntur Principes qui Jura reddunt De Minoribus consultant Principes de Majoribus Omnes And Caesar also observeth that their Princes or Lords were their great Judges sed Principes Regionem atque Pagorum inter suos jus dicunt Controversiasque minuunt Yet Tacitus will also tell us that with those Princes they did joyn Commons Centeni ex Plebe Comites which were perhaps the Fathers of our County Hundreds And in K. Williams Edition of the Confessor's Laws when he inclined so much to them of Norwey Universi Compatriotae Regni qui Leges Edixerant came and besought him not to change their Old Laws and Customs of their Ancestors because they could not judge from Laws they understood not quia durum valde foret sibi suscipere
in affirmance of the Common Law As appeareth not only by Bracton and Fleta but by Glanvil who did write before the Charter and by all the Saxon Laws which were the samplers to King Henry the first But how tender our Law hath always been in matters that concern Estate or Liberty may well appear by all the Executions grantable for Debt or Dammages The Merchant and the Staple Statutes are and were by Statute not by Common Law They seem as sweeping Rain and Storms that drive away the Body Goods and Lands in Fee at time of Recognition or accrewing since but none in Tail but during life of him that was the Cognisor Nor Copyhold or Goods or Leases for a Term of years but only what was in possession at the Execution done They are fore-known and therefore may be well avoided by all such as do not choose their own destructions And there is a tender care in Law not only of exact and punctual Recognitions and recording of them but in case of forfeit upon a Certiorari sued forth from the Chancery and not before return thereof a Capias shall be granted on the Statute Merchant for the Body only if it be a Laic and if Laic be not found and so returned into the Kings Bench or Common Pleas then on pauze of divers months the exigent may be awarded But in Statute Staple on the first Return of Certiorari may the Execution issue forth returnable into the Petty Bag of all it seems the worst in this But the Merchants Court Aequitatem summam desiderat although a kind of Peepoudres as Bracton and the Notes on Fortescue Upon a Recognizance a Capias doth not go before a Scire Facias be Returned into the Chancery Then a Capias or a Fieri Facias or an Elegit at the choyce of Cognisee as in other Common Judgements And of these the fieri facias is the mildest and the oldest by the Common Law It toucheth Goods and Chattels only such as are the Parties Own not lent by or Leased to another For although the Sheriff find them in the Parties Use and full Possession as he thinks yet may he be a Trespasser in taking such and so may run the hazard of an Action ere he be aware Nor did the old Levari facias seize the Land but Corn or that which grew thereon An Elegit hath its Name from his Election or his Choice that sues it out Who so concludes himself from other Executions This did come by Statute not by Common Law and toucheth Half the Fee and all the Goods but yet with Salvo to Contenement he must not lose his Oxen or his Cattle for his Plough For then he cannot live and keep his Family So Tender is our Law for all Estates and Livelihood Nay this Extent must not be made by Sheriffs who may not divide a right but by a Iury of Inquest And so must be Returned and preserved on Record as the first Capias with all mean Processe must or else it shall be nothing worth as may appear at large in the fourth and fifth parts of the great Reports Hoes and Fulwood with divers other Cases And the second of Westminster that giveth this Elegit doth require both Extent of Lands and prize of Goods to be Reasonable that is by Inquest of Twelve and so returned of Record As is cleared in the Commentator See also Littletons Parceners A Capias ad Satisfaciendum taketh the Body but it is by Statute only for it did not lye by Common Law in Debt or Dammages but only where the Original Action was for Forceable Trespass Vi Armis Which is Now crept into every Trespass But of this Sir William Herberts Case in the third part of Reports It may be forbidden again by Statute as it was first granted and that justly too for ought I know if other course be taken for the payment of Just and Reasonable Debts For the Capias as now managed is a great mischief and divers times to the utter ruine of the Debttors whole Family And yet but very little advantage to the Creditor except the Debtor escape and so the Sheriff come to pay the Debt or except he dye in Prison and the Plaintiff get an Elegit for the Debtors Goods at his death or half his Fee-Simple which he had at the time of Judgement or after it For an Action for Debt or Dammages doth but respect the Person and the Law attendeth not what Lands were enjoyed at the Original or before the Judgment But an Action brought against an Heir may aim at Land and so may charge it although he Aliene while the suit dependeth Neither shall I need to add that all these Executions must be sued out For this is required by Law except in the Kings Case within one year and a day after Judgment Yet they may be continued after and by a scire facias be renewd or repealed till the Judgment have Full Execution But this was also given by Statute and to this may the Debter plead although he cannot plead against an Execution Yet it may be suspended by a Writ of Errour and Recognizance according to the Statute of Iames and 3 Caroli And without a Writ of Error after judgement if the Defendant have matter to discharge him of the Execution still the Law is open for him And he may relieve himself by a Writ of Audita Querela And in case of Elegit as soon as the Debt is satisfied the Debtor may enter on his Lands again and if he conceive the Creditor satisfied by casual profits he may bring a scire facias upon which the Creditor may clear how much he hath received of the Debtor's Estate Unto this occasional discourse I shall only add that grand maxime of our Law that Executions ought to be more favourable than any other Process of Law whatever Of which the great Judge upon Littletons Releases and the second of Westminster in Edward the First And for Executions for the Kings Debt's restrained by the great Charter I have little to add to the Comment on the eight chapter of that Charter But the twelfth of Articuli super Chartas hath afforded a Writ commanding the Sheriff to accept of Sureties else an Attachment lieth against him or the party may bring an Action against the Shetiff that refuseth Sureties It is a maxime in Law that a mans House is his Castle so that the Sheriff cannot break it open for an Execution But upon a Writ of Seisin or Possession the Sheriff and other Officers upon suspicion of Treason or Felony may break open an House and so also in common Executions where the King is a party But in all such Cases first the Sheriff must request the door to be opened And the First of Westminster doth also require solemn demand of Beasts driven away into a Castle or Fort which is a kind of vetitum nomium which may be regained By Withernam Which Case I cite the rather because of
the Militia For in such a Case the Sheriff or Bayliff shall not only force his Entry by the Posse-Comitatus into such a Castle on the suit of a Subject but it may also come so far that the said Fort or Castle may be beaten down without recovery And although it be said it shall be done by the Kings Command yet it is well known and seen by experience that it is and always was by Order of the Courts of Justice and for this Semain's Case in the fifth part of Reports may be very well added to the Comments on the First of Westminster By which we see how much the very Forts and Castles or Militia must be subject to the Courts of Iustice Not the King only but in and by his Courts especially the Parliament that may Command Controul and Over-rule all other Courts How tender the Law is in Case of Estate Forfeit by Alienation I have touched before much is to be added Nay in the worst and lowest Estates by Tenure of Will of which somewhat also before for a Fine Reasonable c. as by Copy where Alienation and Wast against the Custom with other Cases in the fourth part of Reports may Forfeit to the Lord but he cannot Out his Tenant at pleasure especially him that sweareth Fealty but the said Tenant may sue his Lord or bring his Action of Trespasse For Offices Forfeited by Bargain and Sale or Brocage the Statutes are clear and just To which may be added the Comments of Littletons Estates Conditional as also for Forfeitures of Conditions It is expresly provided by Act of Parliament that no Sheriff or any other Person do take or seize any mans Goods much less may he take his Lands for Treason or Felony until he be duly convicted or Attainted by Trial Confession or Outlawry upon pain to Forfeit double to the party grieved nor is this only in Richard the third but in the first great Charter and before it also as was touched before Among the Saxons none were Outlawed but for Capital crimes we find it often in the Mirror and in such the Out-law might be killed by any that met him as might any man Attainted of Premunire that vast Chaos of confusion till Queen Elizabeths Time I do not find any outlawry below Felony till about the Barons Wars and then it came not below an Action of Forceable Trespass Vi Armis But in the Common Pleas it came to lie upon Account Debt Detinue Covenant and other petty Actions which the Mirrour would pronounce a most great abuse But in Edw the third there was some amends in providing that none should kill an Out-law but a Sheriff only with lawful Authority Yet in inferiour Cases Land Issues might be sequestred in the Kings Hands till Appearance or Reversal Only in Treason and Felony it forfeiteth as much as Attainder by Judgment But it may be Pleades and Reversed divers ways And a Petty Misnomer or a misdate is ground enough to Reverse it by a Writ of Errour And of this the Books are full But Nimin's case is a criticism in Chronology One of the Sheriffs Returns was dated on the 8th of Iuly in the second and third of Phil. and Mary but it was declared there could be no such day but in the 2d and 4th year which was only between the 6th and 25th of Iuly yet this was enough to Reverse an Attainder of Treason by Writ of Errour And in Favour of Life our Law admitteth Pleas to Out-Lawries in Capitals there where in other Cases must be brought a formal Writ of Error I cannot deny but even by the common Law upon Indictment for Treasom or Felony the Goods and Chattels might be Inventored but not seized as Forfeit till Conviction Nor are Lands and Tenements Forfeit till Attainder by Judge And in case of Appeal which related no time that is only Forfeit which is possessed at the Iudgment But upon Indictment dating the crime the Forfeiture will reach to the crime committed although there be Alienation before Judgement But no Forfeiture before Conviction no seizure before Indictment And the Book of Assizes telleth us the Judges took away a Commission from one that under the great Seal had power to arrest and seize on Goods before Indictment And how tender our Law was in this for Estate it may be seen at large in Bracton and Fleta with the old Writ not only in them but in the Register also relating to the great Charter forbidding all Disseisin till Conviction Yet it requireth the Sheriff per visum suum legalium hominem to Apprise and Inventory all the Offenders Chattels but with a double Salvo both for safe keeping them and for this Security was to be given by the Bailiffs or the Township and for maintaining the person in Prison with all his necessary Family Salvo tamen eidem Capto familiae suae necessariae quamdiu fuerit in prisona Rationabili Esto verio suo Which was not only Meat but Cloathing c. as hath often been adjudged in Edward the third Henry the fourth and other Times See the third part of Institutes cap. 103. It will not be long I hope before God stirreth up our Governours to Reform the crying sins of this Kingdom and not only Gaolers in our oppressing grinding Prisons But the Heathen Moralist hath also told us that Divine wheels are also grinding and will grind to powder though they be slow in motion as unwilling to revenge It is true that Prisons should be by Law both safe and strait Custodies nor should they admit such wandring abroad as some mens Mony doth procure But although Recoveries on Record much lesse Discents do not bind men in Prison or conclude them for want of claim yet upon motion Prisoners may and ought to be brought to the Court in Suits or Actions against them in case of Judgement or where ever else they ought to be in person present And for this I may only referre to the Commentator on the continual claim and the Cases by him cited How unwilling our Law was to empair our Liberty was touched before in the Capias on Debt And although some latter Statutes do out-go our Common Law for Imprisonments yet it is still received for a general maxim in Law that Prisons should be Custodiae not Poenae And where ever any man is unjustly in Prison the Law affordeth him more ways of getting out than his Enemies had to get him in He may have an Habeas Corpus and he may have a Writ de Homine Replegiando He may have an Action of False Imprisonment And may found an Action on the Great Charter Or on it may cause his unjust friend to be Endicted And the Writ de Odio Atia was again revived though by Statute once it was forbidden And for these with Bayl by Judges or Justices Replevins by Sheriffs c. We have the Judgement of all the Judges on Articuli Cleri and the Comments on the great
see and proceed in a judicial way Nor would he condemn or execute before he had not onely cleared his justice in himself or to his Angels but also to Abraham Lot and other Lookers on that he still might be justified both when he judgeth and is judged For he still did and will put his Actions on Man's Judgment This Process also towards Sodom is by many of our old Lawyers brought for the Pattern of our Laws in that especially that none may be condemned without a Legal Hearing And in this and divers other things do Bracton and Fleta borrow much from the Laws of Henry the First And be the Matter of Fact never so notorious yet may there be some Plea that no man can foresee or ought to forejudge before he heareth for all men may plead necessity or force upon themselves as well as Right and Law for any thing they do amiss And for this and other Reasons the Law doth suppose all men to be just or excusable till they be Legally heard and adjudged This Difference there is between the Judges and the Law-makers For these they say do suppose all men to be evil but the Judges should suppose all men to be good till they be proved to be evil The Charge and Accusation by the Law of Nature ought to be clear distinct and particular with time and place or other Circumstances else the Party accused cannot discharge himself Universalia non premunt omnino vel opprimunt Generals do not press at all or else they are apt to oppress The Witness and the Evidence must also be so clear that these must condemn rather than the Judge who sitteth as Counsel for the Party accused that so he be not oppressed by or against Law And besides the Judges in most Cases and in those also of Life in Scotland there is Counsel allowed by Law which may and ought to be heard in Particulars of Law or whatever may be justly disputable as Treason is by Statute So that of all Crimes by express Acts of Parliament it ought to have no Tryal but clear and plain according to the course and custom of the Common Law In such Cases therefore should the Iudges both in Law and Conscience sit and be instead of Counsel to the Party This they owe to every Subject though they had a special Obligation to the King Who to his own Rights and therefore to his Wrongs was an Infant in Law and so expresly declared in the Old Mirror besides other Books His Politick Capacity never but his Person ever in Nonage or supposed so in Law for it may be a Child or a Woman not able to know the Laws and therefore always had by Law a Legal Mouth assigned in Counsel of Law And so might any man else of old it seems for matter of Demurrers before Judgment or for framing of Legal Appeal by Writ of Error or some other way from any Judgment whatsoever It is also the Law of this Kingdom and of Nature that though there be no Councel assigned yet may any in a good manner move the Court to keep the Party from Injustice or the Court from Error as Stanford and the 3d. part of Institutes Cap. 2.63 and 101. And in such Cases it may be excused and not censured for rash zeal if some do or shall appear where or when it may be thought they be not called Neither can the whole Parliament of England I suppose make any Court to condemn without lawful Accusers or lawful Witnesses which by express Acts of Parliament is most especially provided in Case of Treason in King Edward the Sixth and Queen Maries Reign and Tryal of Treason was most expresly tyed to the course and custom of the Common Law Nay in full Parliament of Hen. the VIII it was declared that Attaint of Treason in or by Parliament was of no more force or strength than it was or ought to be by the Common Law or this as good and strong as that by Parliament Nor can the whole Parliament I think by the Law of Nature and right Reason make any Children Ideots or all others whatsoever to be so much as Accusers or Witnesses that I say not Indictors Tryers or Judges By express Acts of Parliament in Philip and Mary Edw. VI. Hen. VIII Hen. IV. Hen. I. for to him doth the Mirror and his Laws lead us as to a clear Crystal Fountain of our Law Process none should suffer for Treason or other Crime but by lawful Accusers lawful Witnesses before those that by Law might receive Indictments which with all Enquest are to be made by honest lawful able men Neighbours to the Fact And the Law of Nature with the Law of the Kingdom giveth any man leave to except against some for Accusers others for Witnesses and many for Tryers It being the known Law of the Land that one may challenge the Array either the principal Pannel or the Tales as well as the Polls and that the lowest Subject must be admitted if he require it to a perremtory challenge of divers it is now in most Capitals limited to 20. but in Treason it is as at Common Law it was to 3 Juries or 35 which may be challenged without any particular reason And the Law of Nature also seemeth to hear all Reasons and just exceptions against any whatsoever Nor shall I need to shew how sutable our Law is to the Law of Nature in providing that no Infant Ideot Alien Abjured Perjured or Attaint Outlaw'd or in Premunire be of any Enquest or Iury especially in Case of Life and Death And for Tryers besides all other exceptions This was thought enough that any of them had been Indictors which maketh Fortescu so much to Glory in our Law that putteth no man to Death but by the Oath of four and twenty men I should mispend my time to shew it to be the great Law of the Kingdom as well as of Nature that none may be Iudg and Parties in their own Cause which may ere-long be found perhaps to be the reason of the Three Estates and very much of our Common Law which is punctual in nothing more than in providing for a clear distinction of Accusers Witnesses Endictors Tryers and Iudges especially in Cases of Treason which upon divers motions of the Commons in Parliament have been so often Enacted and declared to be onely Tryable by the course and custom of the Common Law and no otherwise Nay in Parliament it self and Parliament Men there was and for ought I find always the like course observed For in Case of a Peer the Custom of the Kingdom is to proceed by a special Commission to one as Lord Steward and 12 others at least for a Iury of Tryors besides Accusers and Witnesses and a formal Indictment And all from Record to Record or all this is Illegal if it be onely by the House of Peers If Charge come from the House of Commons they are as Indictors being more than twelve sworn
Lists which I would avoid as a Purgatory being otherwise I say not better imployed than in such unprofitable Wranglings I should believe it not very difficult much less impossible to maintain That both the Moulding and Manage the Make and the Use of the Kingdoms Militia was ever immediately subject to the Command of the Courts of Iustice especially the Parliaments which may in a large Sense of Law be called the Crown or King's Politick Capacity but never I think to the King's Person alone which in Law is still an Infant as the Mirrour expresly calls him though his common Capacity be ever of age Be the Person a Child an Infant Lunatick Incompos Mentis or a Woman which sure our Ancestors could not but deem a most unlikely Person for a wise and valiant General If I were compelled to argue this it should not be only from right Reason or the Law of Nature which yet to me seemeth much to encline this way The Feet are to bear and the Hands to help to hold to bind and rub the Head in any Distemper or Weakness but if I should hear of any Man born with his Heels in his Neck or his Hands tyed to his Head or immediately under his Chin I should think it a Monster And wherever both Hands and Feet are at their due Distance from the Head with divers Nerves and other Vessels Bones and other parts between them yet I never heard or knew that they did obey the Head till it did command itself and them also by Reason or till it also doth Obey not only its own Eyes and Ears but the Common Sense and Reason of the Soul I must confess I have heard that Ticho-Brah did sometimes imagine that he found Mars below or under the Sun But if it were really so it seems as great a Prodigy in Nature as the new Star and that of Mars rather than a new Star in Cassiopeia might presage those sad Commotions which have since followed in many Places of Europe while Mars hath been so much below or under the Sun For by Nature Mars was said and ever thought to be placed immediately under Iupiter the great Judg or Court of Iustice which should command the Sword And so it doth by Law For in England the Iudgments given in any Court of Record do so command the Militia for Execution for a Writ runs of Course which was made by Common Consent and cannot be denyed Release to all Actions will not hold against Execution except all Suits were also released But this is such a Suit as the Law calls a Demand which may not be denyed And for other Cases of Routs Riots unlawful Assemblies Invasions c. The Posse Comitatus and by Consequence the Posse Regni was Disposed and Commanded by known sworn Officers that acted Virtute Officii by the Law and Custom of the Kingdom For it may be known that the old Iustices or Conservators of the Peace were chosen by the Counties as appeareth by Writs yet to be read from the Rolls of Edward the First And now their Commission and their Power dependeth on Parliament Nor could the Chancery have given such a Power had it not been so Established by Parliament which hath also strictly provided for their Legal Nomination and Election For which the Statutes of Richard the Second Henry the Fifth Henry the Sixth and before them all Edward the third thought it were not printed And it is very well known how by the Common-Law and Custom of the Kingdom all the Sheriffs do command the Posse Regni in their several Counties and that not onely Execution of Writs which may be thought to be Matters of Peace But the Lawyers know that Sheriff is Custos Legis and Reipublicae as well as of Peace of which he is the Principal Conservator in his Shire and County Nor may it be Presumption to say That all these Sheriffs also ought to be and so were chosen by the People as is sufficiently found in Hoveden and in the Laws of the Confessor And in full Parliament of Edward the first it was declared to be the Law and Custom of the Kingdom and therefore so setled in the Choice of the People There was in latter times some Alteration made in Choice of Sheriffs but it was by Parliament However we all know that Headboroughs Constables greater men than themselves know Coroners and divers others are yet still chosen in the Counties and do act by Custom and Common-Law And the Sheriff also however he be chosen yet he stands not by Commission nor ought to fall with Kings death But is a standing Officer by Common-Law Who may command all Lords Knights Gentlemen and others in his County by his Writ of Assistance Which issueth of course to every Sheriff I need not say how little the Kings Personal Command or Warrant can by Law interrupt or hinder the Process of Sheriffs Iustices Constables or others in their legal course for the Publick Peace Yea insomuch that if I should have beaten a Drum or raised Forces to rescue King Henry the Eighth from the Compter for abusing a Petty Watch in a Night-walk I might have been arraigned for it And so I might have been for refusing to fire the Beacons or to have raised the Counties if I had seen a Navie of French or Turks landing in King Iohn's time Although the King had come to me and bid me quiet because they were Friends or such as he invited in for the good of his Kingdom Which from his own Mouth or under his hand would have been no legal Supersedeas to a private man in case of such Danger much less to a Sheriff or other sworn Officer For in such cases of Apparent Danger any man that is next may esteem himself an Officer as in quenching great Fires or damming out the Sea And in such though the King himself should forbid me or get me indicted I may demur and put my self on the Judges of Law especially Parliament the most proper Judges in such Causes And to Lawyers I need not cite Records or Precedents Nor shall I need to adde That in case of Foreign Invasion or Intestine Motions and Breaches of Publick Peace the Common known Laws of the Land will warrant a Sheriff Officer or private man to go over a Pale an Hedge a Ditch or other Bound of a Shire or County In which our Ancestors were not so ceremonious or superstitious in case of hot Pursuit or the like Although they were punctual enough in keeping of Land-marks And in Peace in cases of real Actions and personal Trials They were very tender of those Marks in special that bounded out Shires or Counties The Original of Shires and Sheriffs is generally fixed upon King Alfred But the old Abbot of Crowland whence this arose seemeth to speak of new Names rather than Things for himself hath Provincias Comites Vice Domini though not Vice Comites of Ages before King Alfred And the Monk of
in Parliament Which was the Receiving of Petitions As the Rolls of most times witness It being the old Mode and others accounted it somewhat against Reason that Petitions should be taken and brought into the House by those that were to debate and determine them and so might at pleasure keep them Out or too hastily might press them in Whereas they were to be filled up in course and so to be debated as they were received which was therefore entrusted to the care of known and sworn Officers of the Kingdom Although of late their work in Parliament be so strangely degenerate from that it was of old when also beside Receivers there were some appointed for Tryers of Petitions who as it seemeth were to enquire of matter of Fact expressed in the Petition that it might be cleared and rightly stated before it came to be debated in full Parliament I do not deny but these Triers of Petitions were most frequently some of the Bishops and other Barons But by this I am not convinced that the Lords had by Right and Legislative Power or were the sole Determinors of all Petitions as some would infer or that they were the sole Judges except also the Petty Jury that are Tryers of Fact shall be esteemed the sole Judges of Matters of Law And yet I shall not deny but Petitions concerning abuses or errors in Judicature were often deermined by the Lords as the great Judges but of error in the King's Bench as Judges above the King as was shewed before or from the Exchequer In Queen Ellzabeths Time for the seldom meeting or great Affairs of Parliament the Writs of Error from the King's Bench were by special Act of Parliament to be brought before the Judges of the Common Pleas and Barons of the Exchequer and by them to be determined But with these express Limitations as the Law shall require other than for Errors to be assigned or found for or concerning the Iurisdiction of the said Court of Kings Bench or for want of form in any Writ Process Verdict c. and that after all the Records and all concerning them be remanded to the King's Bench as well for execution as otherwise as shall appertain and with this express Proviso That any Party agrieved by such Iudgment in the Exchequer shall and may sue in Parliament for a further and due Examination By which I do not see such Parties agreed were absolutely tied to Petition the Lords onely although it were onely in a Case judicial Yet I deny not but in Edward the 3d. there was a Committee made of a Bishop two Earls and two Barons to hear and determine all Petitions complaining of Delays or Grievances in Courts of Justice But with great Limitations so that they must send for the Records and Judges which were to to be present and be heard and then by good advice of the Chancellor Treasurer Judges and other of the Council to make an Accord yet so that all be remanded to the Judges before whom the Cause did first depend who were then to proceed to Judgment according to the Accord of the said Committee And in Case it seemed to them to be such as might not well be determined but in full Parliament that then the said Records or Tenors should be brought by the said Commitee to the next Parliament it being the Common Law of the Kingdom and so expressed in all the old Books that all new unwonted difficult matters of consequence should still be brought and submitted to the Judgment of full Parliament so that all our Iudges did and ought to respit such Causes till the next Parliament of which there be almost innumerable Precedents in all the Rolls Nay in Richard the 2d there was a Committee of Lords and Commons appointed to hear and determine all Petitions present in that Parliament But afterwards it was adjudged and declared That such a Commission ought not to be given committing or betraying the High Power of Parliament into a few private hands as we may learn out of Henry the 4th beside other times Yet the Modi of Parliament admit that some extraordinary Cases where the Estates could not agree or the greater part of the Knights Proctors Citizens c. There by consent of the whole Parliament the Matter might be compromised to 25. chosen out of all Degrees and to fewer till at length it might come to 3. who might determine the Case except that being written it were corrected by Assent of Parliament and not otherwise And this seemeth to be the Law of Nature and right Reason That Delegates should not delegate others which was one reason why the Commons never made Pracies as the Lords did Nor might any Committee so determine but there might be Appeal from it to the Parliament Nor doth the Parliament it Self conclude so but that there may be Appeal from its self to its self even to its Iustice if it erre or at least to its mercy by some motion or Petition In one Parliament of Richard the 2d it was Enacted that no man condemned by Parliament should move for Pardon but another Parliament 10 years after did annul this Branch as unjust unreasonable and against the Law and Custom of Parliament For from this which is the highest here there still lieth Appeal from its Self to its Self For which also by the Laws and Customs of the Kingdom there were to be frequent Parliaments that so the errors or omissions of one being still human and therefore errable might be corrected and amended in another By express Statutes of Edw. the 3d. we are to have Parliaments once every year and oftner if need be They were of Old three or four times a year as may be found in all the Old Historians speaking of the great Feats in the Militia in King Alfred's Time they were to be twice a year and that at London as the Mirror affirmeth which we compared with the Laws of the Confessor And I speak also of King Edgars and Canutes Laws for the Celeberrimus Conventus ex qualibet Satrapta which the Great Iudg applieth to the Parliament Eternity it self would be a Burthen unto him that is not pleased with his Being so would Omnipotence to him that is unhappy in his acting It was therefore goodness in God to limit man as well in Doing as in Being It was also the Wisdom of our Ancestors to bound and limit out the Being Acting and continuing not onely of other Judges but also of Parliaments Yet the Old Modi of Parliament agree in this That a Parliament should not be Dissolved till all Petitions were discussed and answered and that after all there should be Proclamation made in some open place whether any had a Petition or just Address to the Parliament and if none replied then it was to be Dissolved I need not shew the Care of our Ancestors or former Parliaments for most strict observation of their own good Orders and Customs of Parliament which are such so just and reasonable that they well deserve a peculiar Discourse by themselves and suppose it not impossible to clear them more by the practice and consent of most Ages in this Kingdom which might also be useful for the Times to come And although it might be possible to find some of their old custome fit to be changed yet my hope is they will retain and observe such Rules of right Reason good Orders and Customs as may still make this an Happy Nation and that they will be mindful of their great Trust for which they are accountable And however it may be in this World yet they also must be judged at his coming who shall bring every Work into Iudgment with every secret Thing whether it be good or whether it be evil And I am not ashamed both to long and pray for his coming who is King of Kings and Lord of Lords The Prince of Salem that is Peace as well as King of Righteousness Melchizedek the Lamb upon the white Thone All the Creation groaneth and the Spirit and the Bride saith come Lord Iesus come quickly FINIS