intent to hurt the adversary they see not before how great it is and however are too weak of themselves were the right of their side and most plain to manage it to the best advantage It may seem strange too why the ordinary course of our Circuits should not now be sufficient why we should need quicker returns of this sun of Justice unlesse we think our selves the worst of all men and our age the most corrupt every day falling further from the piety of our forefathers and more prone to oppresse and devoure one another were there a recession from the known Law after a few of the first judgements not to go on far it may be feared there would be no small discord and contrarieties in the determinations where the Courts should be so numerous not derived from one fountaine nor judging by one rule that would be Law and right in one County which would be wrong in another and which is the greatest curse in the Law that which should be most certain would be without any certainty at all To proceed instead of Conservators of the peace at the common Law now antiquated there are Justices of peace of larger power then the Irenarchae of old appointed to take care not so much of the publique discipline and correction of manners as for the peace and security of the highwaies m Cod. Thead in rub de Irenarch l. 1. Their name shews why they were instituted They are in their sessions quarterly to heare and determine all Felonies breaches of the peace contempts and trespasses They are to suppresse riots and tumults to restore possessions forceably taken away to examine felons apprehended and brought before them To provide according to the Statutes for impotent people and maimed souldiers to punish rogues beggers forestallers and ingrossers c. to commit or bind over offenders to the Sessions or Gaole to take recognizances for the peace c. such a form saies the Lord Coke of subordinate government for tranquillity and quiet c. as no part of the Christian world hath the like if the same be duly executed n 4 Inst 170. suites There are other Coures for administration of justice of narrower jurisdiction and confined in smaller limits of some of which I have spoken before yet able to put an end so small differences and ordinary trespasses not to be prevented sometimes amongst neighbours if men would be so contented Who commonly themselves make the Courts below thin and are the causes of the troubles they seem to detest let the quarrel be as trivial as is imaginable for an Asses shadow yet as in some Countries the custome is to threaten they wil have a London proces for him the poorest clownes wil trudge to London on foot from the farthest parts of the North or West more miserably then Carriers horses and undoe themselves which is no hard matter with one journey rather then not discharge their full spight who if they return not back as merrily as they set out they may thank themselves But because delay is charged up on the Courts not onely as an heynous crime but such as must by all means be born with them inseparably inherent to them something I wil speak of that I wil make it evident that delay is more odious to the Law then to those who complaine of it and that it bred from nothing else but the corruption without We finde in the Saxon lawes not onely one which fines the Shieriffe for doubtlesse of him is the word gtrtfan there meant o V. Ll. edu sen c. 5.11 who sentences not according to right after the testimony of witnesses p ibid. Ll. c 5. but also another commanding the Shieriffe to keep his Court to have his Assembly which now we call the County Court as the words and institution of King Edward the elder every moneth And that every man may have justice and every plea an end at the day when it comes whoso omitteth this still as the Law he shall make amends c. q ibid. c. 11 like that of the twelve Tables SOL OCCASVS SVPREMA TEMPESTAS ESTO We need not wonder that suits could be so prepared or rather that so little could be in them that they could be dispatched in a day if the plainnesse of the age before noted be considered when the folcland the possession of the rural man passed without writing and the bocland not to be aliened if there were such a condition in the writing r Ll. Aelfr c. 37. in a few words No man might change any thing but in the presence of the gtrtfan or Baily or of the Masse Prieâ—t or of the Hordre or of the Lord or the soile c Å¿ Ll. Aethelst c. 10. and no man might buy beyond twenty pence but within a Town before the Portgreve other tenth man or with the Shieriffes witnesse in the Folcmote t ibid. c. 12 To look downward Magna Charta has it We sell no man nor deny or delay no man justice and right u c. 29. It is a maxime in Law Lex semper dilationes exhorret The Law alwaies as Markam eschewes delaies w 22 H 6.40 a.v. w. 1. c. 40 44 45. w. 2. c. 25. sta Glou. c. 2. The Barons of the Exchequer are commanded to doe right to all men without delaie x 20 E. 3. c. 2.28 E. 1. c. 10. they are sworn to it y 4 Jnst 109. The common Law requires often that full and speedy justice according to the words of those wâ—its be done to the parties z Na. Br. 23.182 4 Just 67. all writs of Praecipe quod reddat are That justly and without delay he render c. all Judiciall Writs are without delay c. When any Court makes delayes and will not give judgement the Writ de procedendo ad judicium lies The words of which are Because the rendring of judgement of the plea which is before you c. hath taken long delayes c. We command you that you proceed to give judgement thereupon with that speed which is according to Law and Custome When execution is denyed the Writ of execution of judgement lyes by which the Justices are commanded to canse execution to be done without delay of the judgement lately given a Na. Br. 20. v. 2. Jâ—s 270 271. There was a Court raised by Statute for redresse of delayes in the great Courts where yet the delaies are not imputed to any foul play of the Ministers of justice The words are Because diverse mischiefes have happened of that that c. the judgements have been delayed sometimes by difficulty sometimes by diverse opinion of the Judges and sometimes for some other cause it is assented c. a Prelate two Earles and two Barons henceforth at every Parliament shall be chosen which shall have Commission and power of the King to beare c. the complaints of those that will complain to
was suffered in the Civil law parents by a law of the Tables might sell their children thrice g Sect. 18. The Lord had power of life and death over his slave h Insl l. 1. gloss servitus The Petronian law restreins from forcing them to fight with beasts at their pleasure not observed more then the Edict of Nero which deputed Cōmissaries to hear the complaints of slaves They put them to death for trifles Vedius Pollio threw a slave to be devoured of Lampries which he fed thus for breaking a glasse i Dio. l. 54. If a Lord was murdered by one servant it was the old custome saies Tacitus to condemne and put to death all the slaves according to which in the case of Pedanius secundus Provost of the City four hundred innocent men lost their lives k 14 Ann. Where law setled quietly without any awe upon those who are to receive it has too many of Draco's Rubrickes of blood it is terrible Our lawes are not cruelly bloudy they distinguish betwixt intentions and actions and actions as they have their degrees of mischief have their degrees of punishment King Edgar wills in a law That in offences clemency and forgiveness be used as much as justice so that punishment may b◠tolerable l Ll. Nol. 1. Ll. Cnuti 1 2. ve a command not forgot it has continued with the laws Godlike mercy ever saving more then justice strikes Wisdom and mercy justice and grace are joyned m Beact l. 2. as is observed in the beginning No free man can by this law be disseised of his free hold but by lawful judgement c. In those articles against the most worthy Earle Hubert de Burgo he concludes It seems to him That he ought not to answer without restitution being disseised of what he had since no disseised man is obliged to answer in any Gourt c. n Additam Par. 153. This is more visible by the law since As the Lord Cooke if a man be accused or indicted of Treason or Felony his Lands cannot be granted to any not so much as by promise no seisure can be made before attainder o Inst 36 48 Mag. Char. c. xxii Abjuration challenges to the Jury Clergy were no smal favours of the Law If a Felon demand his book and can not read and demand it again under the Gallows and read he shall have the benefit of it p 34. H. 6.49 One Indicted of Felony produces a Charter of pardon discordant to the Jnditement and to his name the Court perceiving the King meant to pardon him remanded him to sue for a better pardon q 46. Ass B. F. Office del Court as if mercy were given in charge to the Justices they ought of office to take notice of all generall pardons though the party plead them not r Dy. 28. and there if all Felonies under twenty shillings be pardoned the Judges ought to dismisse him to God as the Booke who is indited where the Theft is under that sum The Justices heretofore knowing the Felon to be a Clerke who tooke himselfe not to his Clergy would not give Judgement to hang him ſ 22. E. 3. If the Prisoner for Treason or Felony has any matter of Law to plead he is to be allowed his Counsell after the plea of not guilty where it will not be allowed the Court ought to be instead of Counsell for the Prisoner to see that nothing be urged against him contrary to Law and Right Nay any learned man present may give information to the Court in behalfe of the Prisoner for his benefit t 3. Inst c. 2. The Judges as in Humphrey Staffords case is observed u 1 H. 7.26 3 Jus 29. ought not to give their opinions before hand which is condemning a man before he be heard the way to make indifferency impossible whereas as the Lord Cooke untill the party has made his defence things may be represented much to the disadvantage and a small addition or substraction may alter the whole Case In Common Pleas where the Defendant has accepted the Writ or Title where he has lost his advantage by his conclusion or the issue be found against him yet if it appear to the Court that the Plantiffe has no Title no cause of Action Judgement shall not be given against the defendant w Plowd 66 Dy. 13.76.119 120. Every restraint of a free man though not within the walls of a prison is imprisonment x 2. Just 482. Rot. Pael 2. H 4 nu 60. No man is to be arrested or imprisoned against the form of the great Charter before recited y 2. Just 54. No man is to be imprisoned but for a certain cause to be shown z ibid. 53. to be conteined in the Warrant c. the conclusion of which ought to be and him safely to keep untill he be delivered by law c. As the fift of king Henry the fourth None are to be imprisoned but in the Common Goale to the end they may have their tryal at the next Goale delivery c. As Justice Fitz Herbert to keep a man in prison without coming to his answer is against Law a Na. Br. 118. c. The Abbot of S. Albanes would not make a Goale delivery at the time to save costs he lost his Franchise by it b 8. H. 4.18 The Abbot of Crowland forfeited his Franchise for deteining prisoners after acquittal and their Fees paid c 20. E. 4.6 such deteining after the Habeas Corpus is false imprisonment d 2. Just 53. there are many provisions for those who are grieved in these cases by Indictment Writs and Action e ibid. 55. Though the law requires safe and streit custody that must be without any torment or pain to the prisoner relief may be had against cruel and hard usage of a Goaler f 3. Just 35 91 92. The prison as Bracton is not for punishment but custody A certain Priest arrained in the time of King Edw. the second put himself upon the Country and stood at the bar in Irons but by command of the Justices he was freed from them g Fish Corene 432. and as to irons saies the Lord Coke there is no difference betwixt a Priest and a layman h 3 Inst ubi sup No felons comming to answer in judgement ought to be charged with irons i Brit. c. 5.14 c. 11.17 The law of the Land is a law of mercy for three causes as the Lord Coke 1. The innocent shall not be wasted by long imprisonment but speedily come to his trial 2 Prisoners for criminal causes brought to their trial ought to be humanely dealt with 3. The Judge ought to exhort them to answer without fear to assure them that justice shall be duly administred k 2 Ins 316 The Law has a most tender regard as is said of the life of man By a Canon
the nature and disposition of the people or whether they will breed any inconvenience or no but a custome never bindeth till it hath been tryed and approved time out of minde during which no inconuenience did arise for if it had been found inconvenient it had been used no longer but had been interrupted and so had lost the vertue of a Law This is declared to be so by the Lords and Commons in Parliament in the 25 yeare of King Henry the eight which I shall cite below and if the Judgements and Declarations of Parliaments be not regarded I know not what can give satisfaction * Vid. 3. c. Ancient liberties and customes which have been usitatae approbatae used and approved m c. 9. Stat. Mert. make the Common law The statute called dictum de Kenelworth speakes thus the party convict shall have judgement according to the custome of the land n 57 Hen. 3. c. 25. The 27 of King Edw. the first of Fines Contrary to the lawes of our Realme of ancient time used The 34 of the same King confirmes to all Clerks and Laymen their lawes liberties and free customes as largely and wholely as they have used to have the same at any time when they had them best o c. 4. law and custome of the Realme are made the same p 1. E. 2.34 E. 3. Abjuration is called custome of the Realme q 9. E. 2. c. 10. The 25 of King Edward the third saies According to be lawes of the land of old time used r C. 2. The title of the 27 of this King speaks in maintenance of the lawes and usages the Statute 36 of the same King Lawes Customes and Statutes Å¿ C. 15. Statute 42. according to the old law t C. 3. In the time of Richard the second Law and usage are the same u 1 R. 2. c. 2. It would be tedious to heap up more of this kinde I will only adde the declaration of the Houses of Parliament in the time of Henry the eight which is thus Their words being directed to that King This your Graces realme c. hath been and is free from subjection to any mans lawes but only to such as have been devised made and ordeined within this realme for the wealth of the same or to such other as by the sufferance of your Grace and your Progenitors the people of this your realme have taken at their free liberty by their owne consent to be used amongst them and have bound themselves by long use to the observance of the same c. as to the customed and ancient lawes of this realme originally established as laws of the same by the said sufferance consents and custome and none otherwise w 25. Hen. 8. c. 21. Now if what the people of England have taken up out of long use custome and consent be not good agreeable and convenient after so much and so long triall they would appear the most foolish of all people They would not deserve that free liberty which themselves by their repraesentors tell us at the submitting to and taking these lawes they had and if they be good agreeable and convenient they would appeare the most foolish of all people by their change No lawes ever were or can be made with more equity then these to which besides use and custom and experience free liberty and consent of those who were to observe them gave life There is custome of Courts which is law too part of the Common law x Plowd Com. 320. as the Statute of Kenelworth If any man shall take revenge because of the late stirres be shall be punished according to the custome of the Court c. y C. 26. Six times is the Common law called by Littleton common right It is sometimes called right sometimes justice z Mirc c. 2 Sec. 16. Fleta 6. c. 1. Mag. Ch. c. 29. Magna charta calls it justiciam vel rectum justice or right Westm 1. Common right and the King wills these are the words That the peace of holy Church and of the land bee well kept in all points and that common right be done to all as well to poore as rich c. later statutes have Justice and right a 1. R. 2. c. 2. full justice and right b 2. H. 4.1 good justice and even right c 7. H. 4. c. 1. Common droiture in a statute d West 1. c. 1. is rendred Justice according to the law and custome of England e 2 Just 161. called common right as the Lord Cooke Because the common law is the best and most common birth-right the Subject hath for the safegard and defence not only of goods lands and revenues but of his wife and children body life and fame also f 1 Just 142 2 Just 56. That which is called common right in the second of King Edward the third g C. 8. In the first of that King h C. 14. is called common law Not onely as Fortescue doe the lawes of England favour liberty i C. 42. But they are notioned by the word The word liberties in Magna Charta signifie the lawes k C. 1.29 and in that respect is the great charter called the charter of the liberties l 2 Just 47 The Statute de Tallagio non concedendo has these words That all the Clerkes and Laymen of our realme have all their lawes liberties and free customes c. m C. 4. In the 38 of Edward the third the Laws are called Franchises in the old Bookes the great Charter the fountain of all our * Just 81. Foundamentall Lawes is called the Charter of Franchises the common Liberty the Liberties of England n Bract. 291 414. Pleta l. 2. c. 48 Brit. 178 because so the Lord Cooke they make frecmen o 1 Jnst 1 The customes of England bring a freedome with them therefore in Magna Charta are they called Free Customes p 2 Just 47. Mag. Char. c. 29. the Courts of Justice are also called Liberties because in them as the same book the Law which maketh free-men is administred q Mich. 17. Epist 1. in com berot 221. 2. 2 Jnst 4. the Law then is Liberty it selfe Liberty and Law are convertible nor is this Liberty titular onely and a Liberty of words In the expressions of the Petition of right out of Magna Charta cited in the first Chapter and out of the 28 of Edward the third No free man shall be taken imprisoned or disseased c. but by lawfull judgement or by Law of the land and no man of what estate or condition soever shall be put out of his lands or tenements nor taken imprisoned nor dis-herited nor brought to death without being brought to answer by due process of Law which is as after in that Petition of right either Customes of England or Acts of Parliament r 3 Car. Reg
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
too much or too little That of dissection and partition of the debtors body being bankrupt he charges as most cruel and horrible The words are AERIS CONFESSI REBVS Q. JVRE JVDICATIS TRIGINTA DIES JVSTI SVNTO POST DEINDE MANVS INJECTIO ESTO IN. JVS DVCTIO NI JVDICATVM AVT. QVI. ENDO EO IN JVRE VINDICIT SECVM DVCITO VINCTIO AVT. NERVO AVT COMPEDIBVS QVINDECIM PONDO NE. MINORE AVT. SI VOLET MAIORE VIN ITO SI VOLET SVO VIVITO NI SVO VIVIT QVIEM VINCTVM HABEBIT LIBRAS FARRIS IN DIES DATâ— SI VOLET PLVS D ATO TERTIIS NVNDINIS PARTIS SECANTO SI PLVS MINVSVE SECVERVNT SE. FRAVDE ESTO This which willes where there is morbus or aevitas fickness or age that the party appear before the Praetor jumento vectus which he abhors as a new face of a funeral It saies SI IN. JVS VOCAT SI MORBVS AEVITAS VE VITIVM ESSET QVI IN. JVS VOCABIT JVMEN TVM DATO SI NOLET ARCERAM NE. STERNITO These are all his exceptions and for these as it may seem in his words There are things in the Laws most obscure some hard some gentle and remisse Sexius Caecilius as Gellius famous for his knowledge and use in the discipline of the Laws of the Romans and for interpreting of them answers for them Thus. The obscurities are not to be ascribed to the fault of the Writers but to the ignorance of those who cannot reach them long age weares out both words and ancient manners in which the sense of the laws are comprized he tels him the tables were composed three hundred yeeres after the building of Rome 700 yeeres or little lesse before their times he defires the Philosopher to give over the endeavour of defending and opposing what he listed To consider more gravely what the things are he reprehends to leave a while the Acad my with its disputations He tels him that the sicknesse named in the last Law for there he begins was no grievous sicknesse such as might make it inhumane to cite any man Morbus sonticus is the Law term to expresse that That jumentum is not a beast but a carriage here and that without this carrying to the place by law the party summoned might make an everlasting essoine He sayes in the first law of injuries onely lighter injuries were meant besides the AS anciently was a pound weight for greater injuries the Talio was used which he grants could seldome and hardly be done according to the words and meaning of the Law but he sayes in that The decemviri intended chiefly to restraine violence by fear Nor did they think so much consideration was to be had of him who had maimed or broke any member of another and would not agree with him to redeem the Talio where he had his election as to make it materiall whether the hurt was wilfully done or not or whether there were that exact justice and equality in the Talio which is required by our Philosopher And how can it seem cruel saies he That that should be done to thee which thou hast done to another For the other of the creditor cut in pieces he givs these reasons The Romans so he esteemed nothing so venerable as the Publique and private faith also in contracts as well as other duties in the use and commerce of money lent They thought this help of temporary want which the common life of all men stands in need of some time would not be had if the perfidiousnesse of debtors might deceive without some grievous penalty which went by these steps after judgement the debtour had 30 daies allowed him to procure the money if he paid it not he was delivered by the Pretor to the Creditor c. yet might he redeem himselfe within 60 daies after three of the great markets he paid the score with his life c. The creditors if more then one being permitted to cut the body into pieces a punishment denounced with the intent never to come to it that no man should suffer it Necessary for terrour sake because wicked men contemn addiction and bonds yet never as he in his knowledge put in execution Can any man imagine saith he that we should see so many as now we doe lye in giving their testimony if the judgement in the twelve Tables were not antiquated That the convict of this crime should be thrown headlong from the Tarpeian rock The sharpnesse of avenging offences is the discipline of living well and warily These things saies Gellius did Sexâ—us Caecilius discourse all that were present and Favorinus himselfe approving and praising him d Gell. l. 20. c. 1. He that dotes not too much on his own great parts that is not too much an admirer of himselfe will not think the law an easie study that its height can be taken at a distance oftentimes in other learning we goe about till we meet a choise author and one such as he may be may serve the turn It is not so here where many year-books many book cases and judgements not extrajudiciall opinions and conjectures of private men too frequent every where else severall Statutes with the common customes make but one body and are all to be read and known whose bulk as it is not so ample to weaken the firmnesse or soundnesse of the constitution or make the symmetry of the parts lesse admirable yet cannot it be subject to the carelesnesse of the first fight and let the eye be never so stedfastly fixed I know not who can judge the Architecture of the Escurial by one piece or perhaps upon the ascent of the first staire The most knowing Sir Henry Spelman saies of our law that it is perpetuis humeris sustinenda it requires the whole man revelation is of litle use here Those who are really what they seem and more may say as Aristotle does of all men The greatest part of the things we know is the least of those we know not But we are told of such as are not thought so onely but are wonders of men who have the world of knowledge within them living walking libraries men of strange parts It is reported of Lodovico Pontano of Spalato that he could not onely recite not onely the titles of the lawes but also the whole body yet he dyed in the thirtieth yeer of his age Of Suaerez that he could cite any place of St. Augustine in the very words of that father Of Abulensis Hic stupor est mundi qui scibile discutit omne Of the Earles of Mirandula of the Scaligers we are told admirable things of Ioseph that he could be asked nothing which he was not able presently to give satisfaction in besides the tongues the Nubian too which he was most excellent in he had left they say no Science no Discipline untouched Of others that they knew as much of the Civil Law as the great Civilians yet could not be ehought to have leasure to salute it a far off
present infallibility To keep on the old course of passing from the matter to the persons there is yet another quarrel of this kind which I wil speak to in a few words There is one fling at the Officers at the ministers of the Law and Courts If there be any imperfection any negligence omission or mistakes in the execution of things as it is but an huge folly to conceive men so full of faithfulnesse and vigilancy but there may be I see not why this should be a blemish to the Law unlesse it may be thought to favour murder or theft because they are done Lawes can but forbid and punish offences if the vices or faults of men must asperse sciences professions and orders and be an argument to demolish there wil not any where be either science profession or order left and long agone had this been heretofore allowed there had been none of these left to demolish The Writs of the Law Writs of which I shal next speak are said by those who are for the Becselenisme of the British antiquity to precede the Normannes the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is used by Zonaras for an Epitome or concise writing a writing which conteines the sum of any matter it may goe amongst the Graecobarbara l D. Spelnt verbo Breve from the Empire it came to the Church Those of Rome a long while have had their Apostolicall Writs In the Lawes of King Henry the first amongst the publique offences for which men were amerced to the King after breach of the peace which leads the order follows the contempt of his Writs m Ll H. 1 c. 13. where they are first heard of These Writs at the first were but the Kings letters the Monkc of St. Albanes makes them the same In the controversie betwixt William the Chamberlaine and Gilbert of Cymmay concerning the Church of Luiton A certain Writ of the King meaning Hen. the 2. saies he was brought as a praecept to the men of Luiton to recognise the truth of the right of the Church c n Vit. Abb. 67. Another place has attached according to the law of the Landby the Kings Writ o ibid. 143 elsewhere they are called Letters the Letters of the King and of the Chiefe Justice are set downe in this Historian p ibid. 75. who againe in the Majority of King Henry the third saies It was provided of the commune Counsell of the Arch-Bishops and Bishops that the Lord the King should have his Seale and his Letters should run q Addit ad Paris 151. In the Chapters of the pleas of the Crown in the time of Rich. 1. recited by Hoveden an Historian somewhat more antient then the other is said And of all recognisances of all pleas summoned before the Justices by the Kings Writ or of his Chiefe Justice or from the chiefe Court of the King r Hoved. 744. v. 549 in another place the Writs of King John then Earle of Moreton are said to be taken with his Messenger containing his commands his Mandates by the Major of London who delivers them to the Arch. Bishop c. who calling before him c. the Barons showed them the Letters of Earle John and their tenour s id 735. s 30. A Writ with us is a rule of Law which briefly tells a thing t Bract. l. 3. c. 12.15.413 which in a few words delivers the intention of him who brings it some vary according to the diversity of the Cases Facts and Plaints There are as many formes of them as there are kindes of actions they ought not to containe either falsenesse or errour No man is bound to answer without a Writ u Fleta l. 2. c. 12. l. 6 c. 35 36. Brit. c. 84. The Civill Law makes this necessary it makes citation parcel of the Law of Nature w C. de unoquoq F. de re indiciar c. c. 1. The Writs as Doctor Cowell containe a summary and succinct repetition of the fact which brings forth the actions x Instit Ju. Angl. l. 4. tit 6. well may the Lord Cooke tell us they are so artificially and briefly compiled as there is nothing in them redundant or wanting y Inst 73. and Sir Thomas Smith Secretary of State and Privie Councellor to Queen Elizabeth said It was not possible perspicuously to comprebend so much matter in fewer words Concerning the execution of Writs the direction returnes and processe c. upon them he who would see what a strict care the Law takes that things be done justly speedily and without deceit must search into particular cases which it would be too tedious here to tarry upon Pleadings In the next it will not be impertinent to consider something of the Pleadings in the Actions of the Common Law which whoso shall well consider he shall not finde them so horrible as some imagine them nor the formes so intricate and dangerous as they are misconceived Pleas must not be confused and misordered First the Jurisdiction of the Court must be pleaded to then the person c. Every Plea is to be direct not by way of argument c. and to betriable pertinent to the pleader it ought to have its proper conclusion Things apparent need not be averred surplusage if not contrary to the matter hurts not It must not containe multiplicity of matter to the same thing there must be certainty and truth in Counts c. the replication must not depart from the Count nor the reioinder from the Bar c. The Count must agree with the Writ if time order and forme were not observed in these things the Judge and the Jury would be intangled invincibly and Suites would be endlesse If we look on the Libels in the Civill Law and the Declarations of the Common Law on the defences of the one and the barres of the other on the judgements of them both we shall finde nothing in those of the last too narrow nothing which can be left out The example of the action of injuries and of the action upon the ease which are the same are compared by M. Fulbeck z Paral. 10 Dial. 67. I will say no more of the Libell and Declaration but this That the first exceeds the last very much neare a third part in length things quite differing in nature enough to encumber the understanding being brought in I will onely compare yet not at large the defence of this action of Injuries of a lesse bulke then the Libell and the barre in the action of the Case after a tedious recitall of that which makes little of the malice c. of the actor after a long prayer to be absolved and that the accuser may bee condemned in charges stretched neare to the length of twenty lines where the Latin runs as in all Lawes it must rather in a legall then an eloquent stile The defence speaks thus Inprimis igitur dicit
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
second of Richard the second m 2 R. 2. c. 1 Wills that the great Charter and the good laws of the land be firmly holden The 3d. That the good laws and customes c. be bolden n 3 R. 2. c. 1 v. 5 R. 2. c. 1 7 R. 2. c. 2. 9 R. 2. c. 1. The 4. of Hen. the 7. And over that his Highnesse shall not let c. but that he shall see his laws to have plain and true execution and his subjects to live in surety of their lands bodies and goods according to his said laws c. o 4 H. 7.12 c. 9. The 32. of King Hen. the 8. saies The King calling to mind c. that there is nothing within this Realm that conserveth loving subjects in more quietness rest peace and concord then the due just ministration of his laws c. The first Parliament of King James has The fundamentall and ancient lawes which this King as there is said expressed many waies how far he was from altering or innovating whereby c The peoples security of lands livings and priviledges both in generall and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present confusion wil fall upon the whole State c. p 1 Jac. reg c. 2. Twice in Petition of Right is this expression and other the good Laws and Statutes once the laws custows once franchise of the land The conclusion is all which they humbly pray as their rights liberties according to the laws Statutes q 3 Car. Reg. If publike authority authority of Parliaments authority of the English Nation in all ages can make an authentike and valid testimony by that authority we see our Lawes are facred pious good mercifull and just their ends aym meerly at the peace and happinesse of the Nation the only ends which Lawes should aym at and these being had he must forfeit the Noble reason of man who desires a change which whensoever it shall happen by the judgement of a Parliament like the change of death must be fatal to the State Though here is already the weight I promised and such as all English men should allow I wil adde a testimony or two more of private men not of the profession yet no strangers in the Law as the most knowing Sir Henry Spelman Of all municipal lawes our law plain and without dresse as she is is the most noble Lady replete with all justice moderation and prudence c. As Sir Thomas Smith the people here are accustomed to live in such sort that the rich have no more advantage then the poor Dr. Cowel a most knowing Civilian very judicious in our laws sayes of the two Benches They decide all causes religiously according to the rescript of the Common law r Justit Angt. 24. sect 2. a most learned Knight of our age praises highly our forefathers for their vertue abroad and their exquisitenesse of counsel and judgement at home amongst whom as he in Livies expression The commands of the laws were ever more powerful then those of men and Iustice was administred with that sineerenesse and judgement you would believe it to have proceeded from Papinian himselfe of all men who are shall be or have been the most skilled in the laws Å¿ D. Rog. Twisden praefat ad Ll. Guil. 1. Hen. 1. Our laws are not written in any general tongue and so cannot easily be known by forreigners but by the effects long continuance here or acquaintance and seldome so strangers every where for the most part desiring to take notice of every thing else rather then of laws The French man who wrote the estates of the world discoursing of the charges practised in other provinces in his time sayes But the liberty of England is marveilous in this regard no Country any where being lesse charged t Les Esta c. p. sciâ—ur D. T. V. Y. v. Sir Rob. D alingt survâ—y of Tuscany The Lord of Argenton as much experienced as any man in his age or perhaps since who had seen Venice and the order of things there and praises it sufficiently yet speaks in his plain manner of England Now according to my judgement amongst all the Seigneuries of the world which I have had any knowledge of where the Commonwealth is best managed and where there is lesse violence used upon the people it is England u Liure 5. It was otherwise of France in the days of his Master Lewis the 11. In many places so grievous were the Taxes men women and children were forced to draw the plough by their necks and that by night for fear of the Collectors w P. Mat. Lon. 11. If we look upon the Peasants of France flead alive the Villano or Contadino of Italy either under the Spaniard or Venetian Where Fruit and Salades * Sir Rob. Dalingtons Survey of Tuscany nay and Asses dung all things whatsoever pay Tribute but mens sighs where one word gabelle is of the largest extent and more used then all the other in the Languages leave out the chains of the Turkish Gallies and the most sad thraldom of those Natives of America under the Spanish Conversion of the newest Fashion Baptized but as Bede says of the Protomartyr Albane in their own blood we shall finde nothing so miserable so unhappy in Nature Our Yeoman as Sir Tho Smith is a free Englishman a man well at ease and having honestly to live He savours says a Reverend Church man of our Nation of civility and good manners living in far greater reputation then the Yeoman in Italy France Spain Dr. Heyl. Geegr or Germany I may say for some of them more freely more plentifully then the Gentry of either Spain or Italy being able to entertain a stranger honestly dyet him plentifully and lodge him neatly We may read the words of a Parliament to this purpose after the discovery of the Powder-plot No Nation of the earth hath been blessed with greater benefits then this now enjoyeth x 3. Jac. and whatsoever benefits we have received we owe them all to the Laws they are derived to us thence we can attribute them to nothing else Honour given to the Professors of the Laws As Justice is the most excellent of all vertues seated in the Will as more sedate and nearer to the reason its object being the profit of others So it is with good cause preferred before Fortitude as Peace before War which ought to be ruled by a certain Justice and if all men were just there would be no need of Fortitude The ancient Chief Justice whatsoever may be talked of the Constable or others was the Great Officer of State and as he had more power so had he the precedency of all men else Odo Earl of Kent Chief Justice in the time of William the 1. is called Prince of the Palace by Ingulphus y