Hist Savil Edit 907. Sometimes the Chief Justice is called Warden of the Realm Vice Lord of England and Justice of England as the Alderman of England was most Honourable in the Saxon times So was the Justice after which was the same from the first time the word is heard of till Henry the third if we except Hugh of Bocland and Ranulphe of Glanville we shall not finde one of these Justices but he was a Bishop a Peere or at least of the Nobility of one of the illustrious families Aubreye of Ver Earle of Guisnes high Chamberlain of England Justice and as some Portgrave of London father of Aubreye of Ver the first Earl of Oxford which familie so Mr. Cambden justly is the most antient fundatissima familia amongst the English Earles as Matt. Paris was ready in the variety of causes exercised in them a In Sitph reg And of Geofrey Fitzpeter Then dyed Geofry Fitzpeter Earle of Essex and Justice of great power and authority a generous man skilful in the lawes allyed either by blood or friendship to all the great men or Barons of England b Id. in Johrege Henry after king son of Henry the second was chiefe Justice of England By the Statute of 31 of Hen. the 8. c c. 10. which ranks the publique great Officers The Lord Chancellour or Lord Keeper is the first man The great Chamberlain of England Constable Marshal and Amiral are to sit below him the Justices are accounted Peers and fellows of Peers Magna Charta sayes No free man shall be amerced but by his Peers and according to the manner of his offence It is observed As to the amercement of an Earle Baron or Bishop for the Parity of those who should amerce them when this Charter was made that the Justices and Barons of the Exchequer were sufficient Bracton as the most learned Mr. Selden cites him sayes Earles or Barons are not to be amerced but by their Peeres and according to the manner of their offence as the Statute is and this by the Barons of the Exchequer or before the king d 1. H. 6 7 v. D. Spelmver he Baron Scaccer All Judges sayes the same Mr Selden were held antiently as Barons which appears in an old law of Henry the first which is Regis Judices sint Barones Comitatus qui liberas in eis terras habent per quos debent causae singulorum alterna prosecutione tractari Villani vero Cotseti vel Ferdingi Cocseti vel Perdingi in legibus nuper editis sed perperam vel qui sunt viles inopes personae non sunt inter Judices numerandi e c. 29. The Barons of Counties who had free lands in them were to be Judges not common base fellows hence as Mr. Selden again are the Iudges of the Exchequer called Barons The black book of the Exchequer makes it manifest the Judges of the Exchequer before Hen. 3. or Edw. the 1. for thereabouts the Exchequer had its ordidinary and perpetual Barons were of the Baronage by these words f part 1. c. 4 There sits the chief Iustice of our Lord the King first after the King c. and the great men or Barons of the Realm most familiarly assistants in the kings secrets By the decree of king Iames g 28. Mai. 10. Jac. reg The Chancelour and under Treasurer of the Exchequer Chancelour of the Duchie chiefe Justices Master of the Rolles chiefe Baron of the Exchequer all the other Judges and Barons are to have precedency of place before the younger sons of Viscounts and Barons and before all Baronets c. there the degree of the Coif is called an honourable order the Serjeant is called by Writ The words used to be we have ordained you to the state and degree of a Serjeant at Law Vos and Vobis in election of Serjeants and summons of Judges to Parliament ever applyed to persons of quality are used One Statute speaks where he taketh the same State upon him h 8 H. 6. c. 10. And another At the Creation of the Serjeants of the Law i 8 E. 4. â— 2. Which is observed ever to be applyed to dignity k Rep. 10. Epist The Patrons of causes called pleading advocates and Narratores Counters of the Bench or Prolocutors of old as Paris l Hist 516. vit Abb. 142. all Lawyers were antiently of the Clergie And those now who are so curious for neatnesse of that order may thank their predecessours for that rudenesse which is so unpardonable by them in the Latine of the Law No Clerk but he was a Lawyer saies Malmesbury in * Lib. 4. Ed. 1. Savil. 123. William the second we read that Mr. Ambrose the Clerke of Abbot Robert of St. Albanes most skilful in the law an Italian by Nation amongst the first of the lawyers of England for time knowledge and manners is sent to Rome m Vitae Abb. St. Alb. 74. Adam of Linley is said to be Abbot John the 1. his Counsellor in all his weighty affaires a curteous man honest and skilful in the lawes n Ibid. after Archdeacon of Ely for most of them held Church-livings he was after speciall Counsellour and Clerk saies this this Monke to the Archbishop of Canterbury Stephane John Mansel of whom we read so much in the History of Hen. the 3. is called the Kings speciall Councellour and Clerk as much as Atturney generall since o Ibid. 142 Hence it is that the ancient habit of secular Judges was the same and yet is with that of the Ecclesiasticks p D. Wats Gloss ad Paris William of Bussey Seneschal and chiefe Counsellor of William of Valentia would have losed saies the same Monk the staies of his Coife to shew his Clerkly tonsure his shaven crown q 984 985 Hist And again he sayes The Clerks who such Writs dictate write signe and give counsell r 206. Aâ—â—it They are restrained by Pope Innocent the 4. his Decretales who forbid any such to be assumed to Church dignities c. unlesse he be learned in other liberall Sciences Philosophy and Divinity were laid by as the words there the multitude of clerks ran to the hearing of secular laws Å¿ ibid. 190.101 Hugh of Paâ—shul clerk is made justice of England by Hen. the 3 t Hist 405 So was the famous John Mansel before Keeper of the great Seale There have been seven Wardens of the Kingdome or Viceroyes of the Clergy twelve great chiefe Justices neere 160 times have Clergy men been Chancellours about 80. of them Treasurers of England all the Keepers of the privy Scale of old the Masters of the Rolls till the 26. of King Hen. the 8. the Justices of Eire of Assise till Edw. the third were of that order u D. Spel. Epist ad concâ—l men whom the Lawes were beholding to w 1 Inst â—ect 524. rep 5. Câ—wd 2. Just 265. else they had been told
who would have Law to rule the City seem as if they would have God and the Laws to rule but those who would have man to rule give the command to a beast Not that he condemns Magistracy which he often much magnifies but that he would not attribute all things to men By Law is understood natural Reason divinely infused upon which is framed a certain form of living By man humane Authority Such is my will my pleasure my affection are words might become Ket's Camp and his company of Governours They would sound horribly in a Judges mouth Therefore Rinalde protests in Machiavel That he would not esteem it worth much to live in that City where men were of more power then the Lawes Bragging of our own subtleties and contrivances is nothing to the purpose to make this invalid too often we have our ends and designes in them which the Law doe's not allow and hence grows our distaste how often has the case of perpetuities been over ruled it being against God and Nature that things here should continue without change where the change is just and against reason that an estate should continue in one family to the worlds end in such manner that no owner at any time could either advance his younger issues or pay debts out of it but that those of the descendents capable never so disobedient and unnatural should take all yet as if every man might make Lawes for his own patrimony how lawlesse soever and exploded this perversnesse will not be given over although according to the rule of that Reverend Chief Justice upon this case Mens Policies are to be fitted to the Lawes not the Lawes to their Policies s Sir Hen. Hub. 134. This writhing the Lawes * Pigh controv Ratis l. 3. as the Papists deal with the Scriptures which they make a nose of wax is an impiety which Livies remembers with the neglect of the Gods next it t lib. 2 A most reverend Bishop tells a Roman Adversary as ill satisfied with our Lawes as this State which made them was with the Treasons of his Order That he is unworthy to be indured in a Commonwealth held with Lawes who departeth from them u Tort. Tort. 145. We read That is lawfull which the Law of the twelve Tables and the Iulian Law permitteth w Wel. 7. si paciscat Dr c. li. 1. D. de Just jur and in the same Civill Law we say That is lawfull which by the Laws the custome of our Ancestors and institutions is allowed Every thing we may or can doe is not lawfull x Cicero Philip. 13. in which sence Vlpian interprets that clause of the Edict Quod eius Licebit And againe that is lawfull which is permitted by the Lawes to which is opposed unlawfull and that is unlawfully done which is done against the Lawes Customes c. y de legat l. 3. Although the Romans as the Spartanes from whom they are borrowers had their Customes unwritten which was Law approved onely by use Quibus saepenumero saies a Civilian Gliscentibae perniciosissime Lacones errabant z Lexic Ju. Ciu. tit Lex Yet to the end that neither favour nor hatred might approach the tribunall nor judgement be left to the arbitrary will of man and that the Lawes might be made certain and notorious the greatest part of the Roman Lawes were written that no one as is said might doe and undoe binde and loose at his pleasure because of humane frailty all men being liers it is not safe to trust the Magistrate without a written rule as another a ibid. The Jewish Lawes of the Decalogue by Gods coÌ„mand were written the Lawes of the Athenians were written by which they are said to excell those of Sparta b ibid. The Republique commends highly the publishing the twelue Tables then as that the Magistrates were constrained to governe the Subjects following these Lawes so that Equity and arbitrarines had not any place c Bod. de la Rep. Liure fixieme Charendos chosen the Lawgiver of those of old Sybaris or new Thurium in Lucania now Bafilicata chosen so Diodorus to prescribe them the manner how to live having diligently looked over the Laws of other Nations and digested the best into one body commands in no sort to dipart from the words of the Law or from the writing à legis scripto d Biblioth Li. xii his reason is from the absurditie that private men should meddle for this he reserves to the supream power though things be amisse He speakes not more to Magistrates in his prohibition then to any others but generally nor of equity both which Bodin would seeme to prove by this place e Republ. L. sixieme And although in a Court proper a Judge of Equitie is to be allowed yet if it were allowed to all other Courts to expound the Law against the Letter perhaps meaning of the maker according to conscience as wâ— speak Equitie would as more plausible be every where cryed up like Caesars consulship the Law suspected in every case as unjust in time being lost in opinion would weare out and fall insensibly as uselesse and in all Courts there would be nothing but equity left which aequum bonum or equity is in plaine termes nothing else but absolute and arbitrary power King Francis the first of France having subdued Savoy and driven out Charles the second the Duke the new Magistrates substituted by him gave judgement according to equity and often against the Customes and Law written the Estates of the Country were quickly wearie of this equity they could finde no justice in it and therefore Petition the King That those Judges might no more judge according to equity which was nothing else as the reporter but to tie them to fasten them to the Lawes without any variation ny sa ny la neither here nor there a thing quite contrary to the passions saies Bodin of favourable Judges f Vbi supra The mischiefes and oppressures done by Empsâ—n and Dudley are imputed to the Statute of King Henry the seventh authorising to hear c. offences committed against poenall Statutes c. According to discretion not according to Law and Custome of England which the Lord Cooke seemes to dislike g 4. Just c. l. p. 40. yet which is the same discretion is so he thus to be described To discerne by Law what is Iustice h ibid 41. When a Jurie doubting the Law has found the speciall matter the entrie is and upon the whole matter c. They pray the discretion of the Judges or the advice and discretion of the Justices in the premisses c. The Statute 3. of King Henry the eight of Sewers allowes to make Statutes according to their owne wisedome and discretions c. which words are to be to be intended and interpreted according to Law and Justice i r. w. Kighleys c. It was
of old Greece or Rome more renowned for Philosophy or valour then for this piety it is notorious how false that charge of breach of the Laws against Socrates was They who sentenced him erected a Socrates in brasse in the most famous place of the City a piece of Lysippus his workmanship p Diog. lac Here though Caesar had won the field Caeto was the Conquerour and might well say He had ever been more puissant then Caesar in right and justice q Plut in catone utic Plut in A. ristid 623. and that his life was invincible For this reason had Aristides that most illustrious title the just a title given to that late victorious King Lewis the 13 of France if titles are specious from subdued Nations as from Crete Numidis Africa Asia Dacia c. How more illustrious is that by which is signifyed not the Conquest of men but of injustice of that which is the enemy of men every where Bastards as Cardan would have it are not therefore wicked but such says the illustrious Scaliger which goe false counter and beyond what the Laws command r Exerc. 265. Those of Crotone in the upper Calabre protest they would sooner die then mixing with the Bruty those of the lower change into strange rights manners and Laws Å¿ Liv. l. 24. It is memorable what a Persian Collonel speaks to Themistoeles of Lawes Stranger my friend says he The Laws and Customes of men are different some men esteem one thing honest some another but it is very bonest that every man â—â—ep and observe those of his own Country t Plut. in Themist We are the most ingrateful of all men for those benefits we receive from our Laws if we be not zealous for them if we do not strive with all the world in that lawful glory of obeying Laws we may call the Law of the land most sacred as reasonably no doubt as Justinian calls his so I will shew how this and all additions of dignity else are due to it And now that we may not be ashamed of obedience that we may not so much unman our selves to bespeak and worship an unknown Goddesse though as short of what should be as much imperfect as the Fuller earth and sea are crowded into a Globe I will say shorter so far am I from promising and I believe he that makes the next sally may be short for it must be a great hazard a great adventure to praise those things which no men could ever dispraise if he that writ Trajanes Panegyrick could not do him full right as I cannot think he did what can be said of these Lawes which had more then twenty Trajans for their founders with their Senates of their worth that if after the old trick you should call the Gods in nothing could be got by the voucher I say that we may not be ashamed of our obedience to such Laws I will show what they are and which is the best demonstration I will shew what this tree is by the fruit The Law of England is that which is called Common Law of England The Common Law explained and declared by judicial records and supplyed where the plainness of it cannot reach the injustice and deceits of men practised in the later more crafty and wicked ages by that Law which is called Statute Law u 1. Inst 11 besides which there are reasonable customs c. The Common Law excelleth the Statute Laws and may controle Statutes w Hub. l. 5. E. 4 40.4 Inst 42.3 Inst 13.77 2. Inst 526.588.518.11.6 7 8. If as the Lord Cooke they be against common right or reason repugnant or impossible x Sir l. Dav. Pref. r. 8.118 Dr. Cowel a Civilian yet very knowing in the Common Law sayes It is derived from the Law of nature and of Nations as well as any other Law whatsoever consentaneous to Justice and reason y Inst Jur. Anglic. 25. Dav. rep 30. Postrat As Moyle We rule the Law according to the ancient course z 33. H. 6.8 And as Ashton there a f. 9. Where it hath been the use of all times to wage Law and no other way this proveth in a manner a positive Law for all our Law is guided by Vse or Statute And Prisot where Ashton says this as a positive Law says it cannot be for there cannot be a positive Law but such as is judged or made by Statute In the same Book Fortescue says The Law is as I have said and ever was since the Law began though the reason be not ready in memory yet by study and labour a man may finde it b E. 5. and Markham a chiefe Justice c f 24 4.41 It is good for us to do according to the use before this time and not to keep one day one way for one party and and another day the contrary for the other party and so the former presidents be sufficient for us c. And Ascue Such a Charter hath been allowable in the time of our predecessors who were as sage and learned as we be d 37. H 6.22 4 Inst 165 Dact. 17. all Commissions of Justice use to run according to Law and Custome of England as of Oyer and Terminer of Goal delivery of the peace c. The Writs run To take that Assize or do that c. according to Law and custome e Nat. Brev 186.118 c. there is Custome of the manner f Na. B. 3. Custome of the City g ibid. 22. as Sir Iohn Davies in his Preface to his Reports long experience and many tryals of what was best for the Commonwealth begot the Common Law This Law as the Spartane Law and part of the Roman Law in imitation of them is said to be unwritten and preserved in the memory of the people yet is there little of it if there be any little but may be found in the book Cases the Romanes called their unwritten Law Custome Custome so they approved by the manners of those who use it obtaineth the force of a Law written h Just Inst L. 〈◊〉 2. and again without writing that becometh a Law which use hath approved For continual manners approved by the consent of those who use them imitate Law i Vbi sup this is matter of fact and consisteth in use and practise onely nor can it be created by Charter or Parliament for as the same Sir Iohn Davies k Vbi sup when a reasonable act done is found agreeable to the nature of a people who use it and practise it again by iteration it becometh Law and as he goes on this custumary law is the most perfect and most excellent every man in reason will grant this to make and preserve a Commonwealth For lawes made still he speaks either by Edicts of Princes or Councels of estates are imposed upon the subject before any tryall made whether the same be fit and agreeable to
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
who has not heard of the father of Venice If any such there now be as well there may nature we see by these examples of the last times is no weaker then she has been of so firm memories of so happy judgements they are exceptions to my limitation and are not to be confined if they be not too delicate to adventure they may be ranked amongst those who do not invade Such men have reputation to lose which they will not hazard slightly they will consider of things and know well what it is they censure Whensoever they appear they cannot appear but as friends there can be no danger in them Haste and ignorance are onely to be feared if haste as Livie of it be improvident and blinde what can ignorance be thought to see Every man ere he gives his censure of Laws ought to read them over from the beginning to the end to look into them throughly according to that In civile est nisi tota lege perspecta una aliqua particula proposita judicare c c Leg. in Civivile st de leg upon one particle proposed the whole is not to be judged To the understanding of laws the words alone are not enough the intent of the Legislator the reason and end why they were given are to be enquired By the words of the Law is meant their propriety and signification which will not quickly nor without pains be known The intent of the Legislator is his preceptive will seldome found by the words abstractedly and nakedly but by the adjuncts the matter or circumstances This is the intrinsecal form The reason of the law is only the end moving the Legislator to make it not composing substantially the law constitutive to which the precept and will of the Legislator is to be accommodated This if not expressed in the law but devised by the interpreters is but a probable conjecture Every disadvantagious act of a drunken man by our law touching his lands or goods binds him Nay and touching his life too if he kill a man he is hanged for it f rep 4.124 Plow Com. 19. By Pittacus his law amongst the Greeks allowed by Aristotle g Polit. l. 2. c. ult if he had struck any man he was to suffer double as much as if he had done it sober Some lawlesse good fellows would thinke all this very unreasonable in a law onely intended to punish the wrong done according to the grievousnesse of the offence Since it is evident that mischiefs deliberately done as they may say perhaps with advice and malice are naturally lesse pardonable and therefore worthy of more severe punishment But as M. Plowdens report although the drunken man kill out of ignorance it helps not This ignorance was his own act and folly he might have resisted it and shall not be priviledged by it as the Court in that place of the Lord Cooke His drunkennesse is a great offence in it self and extenuates not but aggravates that which follows whatsoere colourable reasons may be given this boldnesse is rather tolerable in an Hotoman a stranger then an English man The law is the act of the whole body politique and ought to over-rule every part of it to binde every man the actual assent of every single man is not material nor does the dissent of a single man disoblige we are tyed by our forefathers their publique submission to these lawes at their free liberty and with their consent made h 25. H. 8. c. 21. their acceptance of them long since bindes us unlesse the revocation be by the same universal agreement which I believe is not like to be had As a most reverend Lord chiefe Justice strangers by living here do tacitely submit themselves to our lawes and forms of Law-making their grant and consent is involved in the consent of Parliament i ch Iust Hubard rep 271. Much more of the naturals and if all mens judgements which may be as unlike as full of diversity as their faces must be satisfied with reasons of laws long since established or to be set up it wil be impossible any old law shoud hand or any new law take Besides all publique authority to which onely the power of lawgiving belongs would lose its reverence As the Mirrour No creance no belief is to be given to the vain voice of the people The Iudges they are to obey the laws not to dispute them We have have our 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as well as the Athenians who are judges of the laws of the reasonablenesse of them and who are to see them observed King Edward the first said by a most reverend chief Justice long ago to be the wisest king that ever was k 5. E. 3. c. 14. speaks thus in a Statute where we may see what antiquity attributed to the honourable Judges of the laws The king wills that the Chancellour and the Justices of his Bench shall follow him so that be may have at all times neer him some sages of the law which be able duly to order all such matters as shall come unto the Court at all times c l 28. E. 1. c. 5. All the Justices of England and Barons of the Exchequer as the Lord Cook are assistants to the Lords in Parliament m 4 Inst 56 They were more then assistants to the Barons their Writ was for they had their Writs too Quod intersitis nobiscum cum caeteris de consilio nostro super pramissis tractaturi vestrumque consilium impensuri They were to treat with the king and his Councel and to give Counsel As Mr. Crompton they were to be demanded for the Law n Jurisd 2. Postnat 22 23. a Statute more antient then the former begins All of the Councel as well Justices as others agreed that the constitutions underwritten c o Vid. Stat. de Bgam And again It is agreed by the same Justices c p Ibid. i. 6. The Statute of Marlbridge sayes For default another day is to be assigned according to discretion of the Judges q c. 13. Marâ—b and discretion of the Justices and the Common Law are joyned 1 c. 26. ibid The Statute of Westm 2. for damages in appeals has According to the discretion of the Justices Å¿ W. 2. c. 12 in another place Whereas the Justices in the plea of Mortdancester have used to admit the answer of the tenent t c. xx the Statute 27 of Fines is according to discretion of the Justices u 27. E. 1. All the Judges of England gave their Answer to the Articles of the Clergy 3. Jacobi which the Lord Cooke calls Resolutions of the highest authority in law w 2 last 001. as upon the xx chap. of Westm 2. by that he says it is confessed That admission and allowance of the Iustices ought to be holden for Law x 2. Inst 399. In the Parliament 19 of Edward the first Sir Thomas of Weyland
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
of our old English Church he that killed a man in publike war was enjoyned a penance of 40 daies l Concil sax 383. By the Common law killing by misadventure or in a mans own defence was murder founded upon the judicial law before the Cities of refuge the forfeiture of both was as in the case of murder before the Statutes of Marlebr and Gloucest the forfeiture of goods and chattels remaines yet If he that kills by misadventure escapes the Towne where the Fact was committed is to be amerced m Fitzher Corone 302 2. Iust 148 149. So where the killing is se defendendo n 2. Inst 315. Mens lives are so precious in the Law that the death of a man cannot be justified the Defendant in an appeale cannot justifie the death se defendendo but must plead not guilty o B. Appeal 122. A verdict that A. killed B. se defendendo is not good the special matter must be set down that the Court may adjudge the killing to be upon inevitable necessity p Corone 302 Maiming wounding menace of life and member in defence of the possession of Lands or Goods is not justifiable An infant of nine yeers killed another infant and hid him c. the opinion of the Justices was that he should be hanged but execution wat respited c. q Corone 57 3. H. 7 d. 12 If a man be drowned by mischance in any pit not fenced the Town is to be amerced r Coroue 304.320 v. 339.402 421. so where a man dyed suddenly of a Feaver and was buried without viewing by the Coronour Å¿ ibid. 329. a Lunatick kills a man he must sue for his Charter of pardon t ibid. 351. And where the worst of men suffer those punishments which Justice inflicts which it were cruelty destructive to Government and Society to forbear it is well said to punish the Homicide and sacrilegious is not effusion of blood but ministery of the Lawes I say where justice doe strike it is with an humane severity the offender with us does not carry to the place of execution his own Crosse he is not first whipped then nailed naked to the unhappy tree as it is called we have no Italum Robur Robur or strong hold as it is Englished in a stinking prison horrible for darknesse where malefactors necks were broke by tumbling them headlong from the stock of a tree there fastned in the earth No rack or brake where the party innocent oftentimes was tormented till he accused and condemned himselfe being hoised upon it and fastned with ropes to it his hands at the upper part and feet at the nether part his joynts were not onely racked but the tormentors oft burnt and tore the flesh from his sides with hot plates and Iron pincers Those who would have introduced the Civil law in the time of King Hen. the 6. brought the rack into the Tower * 3 Just c. 1. as a beginning to it Hereupon as is observed the most reverend Sir Iohn Fortescue Chancellor or rather chiefe Justice of England writ in commendations of our Lawes where he maintains that all tortures are contrary to them There is no Law saies the Lord Coke to warrant them in this land Although there were no ful proofs against some of those horrible miners in the Gunpowder treason yet was it not thought fit if the discovery could be made any other way to take the extraordinary of the rack Some other legalartes were used yet I cannot tell what could have been extraordinary or illegall in the case of such Hellish parricides who if they could superas evadere ad auras and assume bodies could not much exceed themselves Garnet and Hall betrayed themselves by their own conference which was permitted to catch them That conference is called by the Earle of Salisbury The finger of God Thereby so he tels Garnet the Lords had some proofe of matter against him which must have been discovered otherwise by violence and coertion a matter saies the Earle ordinary in other Kingdoms but forborn here c. v Proceed against the Gunpowder Traytors He addes His Majesty King James and the Lords were wel contented to draw all from Garnet without racking or any such bitter torments We have no dejectio è soxe like that headlong throwing down from a rock in the Tarpeian mount Nothing like the Gemonian staires whether the malefactour was either dragged * According to Tacitus Aun l 5. and cast into the Teuere It is said there was not so much left of Sejanus untorne by the people which the Hangman might fix his hook on to draw into the River or as others haled by the Executioners hook thrust into his throat and having his thighs broken burnt clad in a coat dawbd on the inside with pitch and brimstone We have no sawing asunder from the head downward no condemning to a Fencing schoole to beasts mines or mettals no banishment deportation no most barren Gyaros to confine men to not so much as relegation is known in our Lawes No empaling no wheele No deflowring Virgins by the Hangman before they be put to * Quia in auditum saies Tacitus trium virali supplicio virginem affici it had bin far lesse to have broke the custome then to â—â—de this â—â—k â—o keep it L. 5. Ann. death Before Villainage expired here the villain might bind his Lord to the peace he could not kill him if he maimed him he might be indicted fined and ransomed By Magna Charta which is affirmance of the Common law No free man is to be amerced but according to the manner of his offence Misericordia is the word used for amercement there must be mercy in it saving his countenance salvo contenmento c. the Merchant saving his Merchandise the villain his wainage x Chap. 14 Glanu l. 9. c. 11. No amercement is to be set here upon private men but by affeerours who are to affirm upon oath what penalty the offender has deserved as Bracton to doe things fairly neither carried away out of love nor hatred The Writ of Moderata misericordia of moderate amercement is grounded upon this Statute which it reciteth and gives remedy to the party who is excessively amerced If the Jury give excessive damages against any man Attaint lyes usury is not to run against the heir within age y Stat. Mert. c. 56 among the Saxons it was unlawfull hence where rent is to be doubled for default of payment it shall not be doubled during minority of the heir Distresses are to be reasonable and if there be any other chattels sufficient sheep and beasts of the plough are not to be touched It would be infinite to goe on I should as we say not onely want day but a long life were too short to make a survey of all the parts to contract all the graces of this body and pourtray them so that they may be a little and
exemptions By which the Clerks were to be for ever beyond the free years of Pompey dispensed with freed from the Laws The most reverend Chief Justice Fineux in the Case of convening Clerks of which before asks the Archbishop of Canterbury who would have such offenders delivered to the Ordinary if this were granted what he would do with the parties so delivered you have no authority says he by the Law to determine matters of Felony to which no answer was given b Kell 7. H. 8.185 The Saxon founders and indowers of the most of our Churches left never-dying Monuments of their Faith and good Works The Laws of King Aethelbert the first Saxon King begin with the Church and make provisions for that c Ll Aethelbertic 1. King Jua hath Laws concerning the life of the Clergie Baptism of Infants hallowing the Sunday The Churches sceat or part very unjustly translated Church seed Sanctuaries striking in the Church d Ll Ina. c. 1.2 3 4 5. 6. v. ll Alfred c. 2.5 6 21. ll Ed. sen c 7. King Aethelstane for Tythes the teoê§e tenth e Ll. Aethelst proem So have the Kinge Edmund and Edgar f Ll. Edm. c. 2. Edg. c. 2.3 The same Aethelstane concerning Church-Burglarie g C. 5. Edmund again concerning repair of Churches h C. 5. King Cnut for the peace of God and the Church i Ll. Cnut c. 2.3 The Councel of Aenham a Lay Councel Commands that all men defend Gods servants and honour them k Ch. 30. ll Cnut c. 4. As much respect was to be given the Priest as the Thane l ibid. c 2. The head of the Mass Thegne and of the Wordly Thegne or less Thegne are valued alike m Ll. Aethelst Be Æ¿erum What priviledges the Church injoyed in its possessions may be seen by the pieces of Charters before recited and the plea of Pinnedene I will note one Law alone of the Saxons for the Churches liberty which is this aenig man heonan foƿð cyrican ne þoÆ¿ige Let no no man make the Church ser vile impose any servitude upon it n Concil Aenh c. 9. Let peace be binnaen Æ¿agum within her walis o Ibid. Magna Charta begins We have granted to God c. That the English Church be free and have all its Rights and Liberties whole c. of which the reverend Commentator says thus Ecclesiastical persons have more and greater liberties then others to set down all would take up a whole volume c p Mag. Ch. 1 Com. 3. v. 2. R. 2. c. 6. R. 2. They have this priviledge not to serve in person in War To be quit of Tolles and Customs of Average Pontage Paviage c. for their Ecclesiastical goods and if they be molested there is a Writ given for their discharge by which it appeareth says the same Commentator This was the ancient Common Law of England There is a protection with the clause Nolumus where they feared their beasts or goods or those of their Farmers might be taken by the Kings Ministers They are discharged of purveyance for their own proper goods No distress can be made in the ancient indowments of the Church by any Officers whatsoever Upon a Statute acknowledged by an Ecclesiastical person his body cannot be taken If he had not paid upon a recognisance at the day Nolevarifacias lay at the Common-Law if the person had nothing but Ecclesiastical goods c. Where a Capias lies and the Sheriff returns that the party is a Clerk beneficed having no Lay Fee no Capias should issue to take the body but a Writ to the Bishop to cause him to come and appear Otherwise had not the word Beneficed been in the Return No Ecclesiastical person is bound to appear at Tourns or views of Frank pledge The Church hath its place in the Parliament Writs Though it be last named it is the first says the Lord Coke in intention q 4. Jnst 9. The Magna Charta in the Title speaks thus For the Honour of God bealth of our soul exaltation of holy Church and amendment of the Realm The Title of the Statute of Confirmation of that and the other Charter is Know that we to the Honour of God and of Holy Church generally the Church leads r 25. E. 1. 1. E. 3. 2. E. 3. 5. E. 3. 15. E. 3. 31. E. 3. 47. E. 3. 1. R. 2. 2. R. 2. 5. R. 2. 6. R. 2. 7. R. 2. 13. R. 2. 21. R. 2. 1. H. 4. 4. H. 4. 8. H. 6. 28. H. 6. 39. H. 6. 1. E. 4. 3. E. 4. 1. R. 3. 1 H. 7. 2. H. 7. 3. H. 7. 4. H. 7. 11. H. 7. 12. H. 7. 19 H. 7. 1. H 8. 3. H 8. 4. H. 8. 5. H. 8.6 7 12 23 24 25. in Richard the thirds Parliament too Weal Common-weal Weal-publick and profit of the perple are ordinarily found in the Titles of the Statutes If we consider the Justice Equity Mercy and goodness of the Laws for the tree of Piety is known by this fruit the only scope of them being every where to relieve the poor and oppressed and to protect the innocent the Religion and Devotion of our Forefathers will plainly be visible in them as their civility and humanity are whose memories we ought to honour unless we will teach our Nephews how to neglect and sleight our selves and we cannot honour them more then by the imitation of their plain honesty and constancy it is rather Tyrannie over others then presumption to yeild nothing to all men else and to look that all men else should yield to us this we ought to do And although fortune may have too much power over virtue though nothing be got by it yet after death and corruption of the parts mortal vertue perfumes the grave it ennobles and by example sometimes refines the posterity leaves a taste of Immortality behinde it the Great mans name cannot outlive his Marble it moulders away or is plucked up with it the Good man is his own Monument he lives every where who doth not need an Epitaph Victory over our selves over our own passions private interests pride vain-glory rashness levity is the most glorious and most honest victory such a Conquerour would undo Caesar and such a true line Here lies a Good man who loved his Country and never broke the Laws makes the Stone or Brass more rich and precious then those Aegyptian Wonders which have survived their Founders who is quite forgotten and buried in them What will much content some no doubt by Magna Charta Mala tolneta all evil Tolls Customs all Praestations and Impositions for Merchandise Imported and Exported are taken away Å¿ c. 30. By the Statute of the Confirmations of the Charters the Magne Charta and that of the Forrests There is a Grant so are the words Not to take aids or Subsidies but by comman consent and for the common profit t c 5
6. And again there in the Chapter of the Maletot u c. 7. The ill Toll or Charge of 40 s. upon every sack of Wool is taken away where are these words We have granted for us and our Heirs not to take c. without common consent and good will By the Statute called de Tallagio non concedendo No Tollage nor aid was to be set or levied but by common consent w 34 E. 1. All new Offices with new Fees are within this Statute x 2 Inst 533. No man is to be charged by any benevolence which is condemned by a Statute as against the Law y 1 R. 3.2 He who judges things impartially must confesse the English ever to have been the most happy and most free of all people while they enjoyed the benefit of these lawes and are likely yet to continue â—s happy under them for the time to come But as some there are as is noted who will allow no authority but their own not reason it selfe nothing without themselves so some there may be rather for a Sect then the truth more willingly following a great name then reason chusing number rather then weight and worth carryed away with authority as they call it such as will yeeld to nothing else If any such there be I will please them they shall have authority with truth weight and worth together Not that I bring in other vouchers as if I refused those or thought them not sufficient who as have shown before are the true and undoubted Judges of the lawes In the Councel at Oxford of the English and Danes held in the sixt yeere of King Cnut The English and Danes are said to agree about keeping the Laws of King Edward the first Wherefore they were commanded by King Cnut to be translated into the Latine Tongue and for the equity of them those are the words to be kept as wel in Denmark as in England z Mat. West flor Hist l. 1. 311. Wigorn. 311. Although it is said the English laws * Gloss ver Lex Dan. were silent spake not in the times of the Danes which might generally be true yet in the reigne of of this King it was otherwise as appeares by his excellent lawes of Winchester full of piety and justice a Concil saex 569. These were the famous lawes observed by King Edw. the Confessour after many of the laws of K. Aetheldred many of those of the renowned Councel of Aeaham under the same Aetheldred are amongst them In the Epistle of King Cnut writ to the English when he was coming from Rome He saies He bad vowed to govern the Realms subject to him justly and piously and judgement in all things to observe At his returne saies Malmesbury he was as good as his word For all the Laws by the ancient Kings and especially by his ancestour Aetheldred given under penalties be commanded to be observed for ever which now men swear to keep under the name of King Edward not that he ordained them but because he observed them b Malmâ—b de Gest Reg. l 2. c. 11. p. 75. How much the ancient Englishman loved and prised the Common lawes is evident by what has been before said concerning the Magna Charta and the setling them And it is more evident by the odiousnesse which subversion and the subverters of the Lawes have lain under in all ages There is a Writ in the Register as before to take the impugners of the Lawes and bring them to Newgate c Regist 64. In the complaint of the Bishops of Henry the thirds reigne against the strangers Poictouins his favourites are these words As also because the Law of the land sworn and confirmed and by excommunication strengthned this was the Magna Chaeta together with justice they confound and pervert d Ma. Pa. 396. The Earle Marshall Richard complaines of these Poictouins to this King as men who impooy themselves to the oppression of the Lawes and liberties e ibid. 384. Stephane of Segrave the chiefe Justice is charged in another place with corrupting the laws and introducing new ones f ibid. 392. The same King is told by those Bishops That if the subjects bad been governed according to justice and right judgement of the land c. those troubles had not hapned The Statute banishing the Spencers the father and son has this Article To the destruction of the great men and of the people they put out the good and fit ministers and placed others in their room false and wicked men of their Covin who would not suffer right or law to be had and They made such men Justices who were not at all conversant in the law of the land to hear and determine things Empsons indictment runs Nor having God before his eyes c. falfely deceitfully and treasonously the Law of England subverting g 4 Just 199. The Articles against Cardinal Wolsey before mentioned begin Hath by divers and sundry waies and fashions committed high and notable and grievous offences misusing altering and subverting the order of the lawes His articles are there by the introduction said to be but a few in comparison of all his enormities excesses and transgressions against the Laws These Articles were subscribed by the Dukes of Norfolk and Suffolk the Marquesses of Dorset and Exceter the Earls of Oxford Northumberland Shrewsbury the Lords Fitzwalter Rochford Darcy Mounjoye and Sandys c. all which as those others taking subversion to be so heinous an offence must needs be imagined to esteem the Lawes highly Lewis of France invited hither by the Barons in King John his time in the entrance to his new principality is made to sweare to restore to every of them the good Lawes h Ma. Pa. 282. As others to maintain ad keep the institutions of the Countrey Those who desired a stranger for their master would not be governed by new and strange laws amongst the covenants of marriage betwixt Queen Mary of England and Philip the second of Spain there is one to this effect That he the King Philip should make no invasion of State against the laws and customes of the Realm neither violate the Priviledges thereto belonging i Hollinsh p. 1118. And amongst those covenants of marriage treated betwixt Elizabeth of most happy memory and Francis Hercules of Valois Duke of Anjou the same care and warinesse is had one of the conditons is That the Duke shall change nothing in the laws but shall conserve all the customes of England k Comd. Eliz. 338. The Lord Treasurer Burleigh the Earles of Lincoln Sussex Bedford and Leicester Sir Christopher Hatton and Sir Francis Walsingham were delegates for the Queen men too wise to tie themselves and others to preserve those things which are neither worth a care nor being The Statute 28 of Edw. the 3 l An. Dom. 1363. speaks thus The good ancient Laws customes and Franchises of the said Realm The
of it Many great Families have been advanced by the Law many of the best and noblest thought it no disparagement to professe it Some of our illustrious names may be met with amongst the Serjeants and Apprentices of our yeere books as well as in the Heralds books If like Boccace his Ghost all those who laid the foundations of their houses who first broke through the miste of time wherein they and their ancestors were hid before who first shewed their names to the world were to appeare before us in the habit of their sprouting up with all their sordid cheats with all the crafts several close arts of thriveing used by some displayed and revealed all the false sleights of the Town and Country laid open where every peny is got oftentimes too too dishonestly by the unworthiest sins a man can commit how would the gawdy off-spring curse his own rise the branch be ashamed of its own root vertue alone is honourable mony can neither make men wise valiant nor good Arts and Armes onely and really innoble that of all others most deservedly whose object is meerly the good of mankind which imployes men continually for the publique for the preservation of the people pacique imponere morem The souldier as Cicero may once profit his Country the Lawyer always Our most Reverend Judges and professors of the Laws have in all ages * Anciently part of the Persian kings title The ophyl risen with the Sun and given eyes to the blinde night But I have offered my selfe too far to ingrateful dangers Here I will stop and give over Not that much is not left out which might have been said of the sacred Law of the Land and the administration of Justice here Much is left out and I wish some more happy and more able would undertake the whole It is enough which again I may protest that I speak not in the midst of Fetters and that I have defended and the defence could not but be easie truth onely for its own sake yet I believe he who knows most who commands most in language and Sciences who pretends justly a title to the kingdome of the barre or schooles with all his mouths and tongues if he had more then one hundred could not do full right would be short and wanting here Not in our right hands as is said of those souldiers in Curtius but in our Laws our helpe our hope and liberty lie We need not aske for propriety not for peace not for order concord security not for wealth nor honours one wish comprehends them all carries all these with it the safety of the laws is all these propria haec sidona We have seen at large what excellent blessings we have received from the Law these blessings may be everlasting if that be made so I know nothing it ought to yield to and our Parliaments have thought so but eternity and the change by that FINIS The Table A. AIde to Knight the eldest son c. 127 Alodium alodiaries 129 130 c. Aelfred the King not the founder of the Saxon policy 85 86 Aequity and judging according to equity how to be understood 31 32 Aescuage 127 149 Aldermen amongst the Saxons 98 B. Barons Norman and English ever lovers of the Laws 107 280 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Bocland 140 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Britannie and the Britains under the Romans 71 72 73. The Civil Law the first Law heard of them amongst them 73 74 governed by Kings 72 C. Casars Commentaries l. 6. concerning the Gaules and their wives 75 L. Chancellours Oath 65 Chiefe Justice the greatest subject 159 288 289 Church highly favoured by Lawes 273 274 Circuits of the Iudges 163 Civilians what opinion they have of the Pandects c. 226 Clergy men heretofore Lawyers 292 Cnut the king composed the law called the law of St. Edward 88 Counsellours 175 Courts of Iustice are of Saxon original 94 95 96 Courts since 159 160 c. Courts standing and ever open 165 166 Customes unwritten why 89 D. Delayes odious in the law 169 170 c. De rerum venditione that constitution set forth at Yorke 74 Drenches 143 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Duilian baâ—k 218 E. Earles amongst the Saxons 98 Edilinges 140 Edward the third first changed the Welsh lawes 76 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 200 Eleutherius his Epistle to Llever Maur a forged piece 73 F. Faulehen what 124 Feudes 121 Firdfare 149 Foleland 129.152 Forstale 134 Frankalmoigne 127 Frankleudes 129 130 The French Policie and ours much alike 126 Fyheren 124 Frilinges 126 Fundi limitrophi 119 G. Gavelkinde in Germany 125 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Germanes and their institutions have overâ—â—owen all Europe 78 79 80 Their lawes called salic more antient then Justinian 81 Glebal gold 120 Adscriptitius ibid. Grithbrece 134 H. Henry the eight imposed wholely the English lawes upon the Welsh 77 Heinfare 145 Hereban 150 Herefare 127 143 Hereot 127 14 High Court of Iustice 97 159 Hotoman his censure of Littleton 240 I. Infangennethiefe 134 Iudges not to decide causes according to discretion how to be intended 32 33 Their authority 199 c. Assistants to Kings and Parliaments there heretofore Barons 290 Honoured 292 293 Iuries tryals by them not brought in by the Conquerour 92 93 Iustice to obey laws 33 K. Kings of Macedon ruled by law 24 Of Mexico might not be touched 45 Kings of England their Oath 111 Might free men from the Firdfare Burgbote c. 151 Kisses given to Princes 118 L. Laudamentum 124 Laws the enemies of them 1 2 Necessity of them 18 35 Law what it is 34 35 Force is not law 23 24 25 Nor the arbitrary will of man 27 28 Why laws were written 30 31 How antient 35 Law of the land in Magna Charta is not waging law 50 51 Common Law 75 excells and may controle Statute laws ibid. Custome and expirience begot it 60 61 It is known and to be found in books 60 65 66 67 Its antiquity not Norman c. 64 c Laws of Hoel Dha and the Welsh 76 77 Salie Laws 86 81 82 The Saxon laws 84 the several kinds 88 Our fundamental laws Saxon 90 91 known by the name of St. Edwards laws 100 101 102 104 setled in the great Chaster 108 110 then called Common Law Letters of the Ionians and Phaenicians heretofore neer the same 37 Loudes 131 Liberty what is 45 46 c. Littleton vindicated 240 241 Lombards their laws 84 M. Manners and priviledges belonging to them amongst the Saxons 133 Method of our law 243 N. Normans themselves ever zealous for the laws of St. Edward 135 107 108 They as some received their lawes from the Saxons 112 O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 120 Operae liberterum 119 P Papinian Judge at York 74 Papists ever enemies to the lawâ—s 67 Parkes 136 Plea of Pinneden under Will the 1. 104 Pleadings 209 Polydore Virgil 92 93 Propriety 2 3 R Rectories and glebe-land whence 151 Reliefe 127 131 147 S Salbuch in Germany 83 Saxons their policy and government 85 86 Sac. 134. The Saxons subverted all things 77 78 Saxon tongue 215 216 217 Sicyon never changed her lawes in 740. yeers 53 Slaves thrown to Lampries 252 Soc 134 Socage 129 Spaniards retain the German customs 128 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 120 Subverters of the laws 66 67 T Team 134 135 Tenures all Europe ever 118 Reasons of them 119 120 All lands held of the King 149 Terms of the law 213 c. Thanes Thenes 137 138 c. Tol 134 Tribonian censured by Perrinus 226 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 V Vassi dominici 125 Vicedominus 99 Villeins 153 154 Vtwara W William the 1. his entry not so violent as is thought by some 143 144 Writs whence they issue 162. See 207 c. anciently the Kings letters there No man to answer or be called in question without a Writ 209 FINIS
The Lord Chancellours oath is thus That he shall doe right to all manner of people poore and rich according to the lawes and usages of the Realme s 10. R. 2. rot Parl. 8. The Barons of the Exchequer sweare no mans right to disturbe let or respite contrary to the lawes of the land t 4. Jnsti 109. which must be meant of the knowne and certain Law of the Land called in Magna Charta Legemterrae upon which all Commissions are grounded wherein is the clause to do what belongeth to Justice according to law and custome of England u 2. Jnsti 51. The illustrious Viscount of St Albane amongst his Aphorismes of universall Justice has this Let no Court deale in cases capitall our Lawes say Civill too but out of a knowne and certaine law God denounced death then he inflicted it nor is any mans life to be taken away who knew not first he had sinned against it w Augm. scient 402. By this Law of the Land although there is not nor cannot be any liberty which should protect the transgressors of it yet have all Offenders a legal tryall nor are possessours of the worst faith thrown out without the hand of the Law onely against those who attempt to subvert or weaken the Lawes there is a Writ to the Sheriffe in nature of a Commission to take the impugners and to bring them as the Register to the Gaole of Newgate x Regist 64 2. Justi 53. This as the Lord Cooke is lex terrae The Law of England to take a man without answer or summons in this case and the reason given is He that would subvert all Lawes deserves not the benefit of any Amongst the articles exhibited to King Henry the eight against Cardinall Wolsey he is charged with oppression in imprisoning Sir John Stanly and forcing him to release a farme taken by Covent Seale of the Abbot of Chester c. as the words by his power and might y Artic. 38. And that he threatned the Judges to make them deferre judgement z Artic. 39 that he granted many Injunctions the parties not called nor any bill put in by which diverse were cast out of their possessions of their Lands and Tenements a Artic. 21. The close was That by his cruelty iniquity and partiality he hath subverted the due course and order of the lawes His Inditement went higher and accused him That he intended the most ancient lawes of England wholly to subvert weaken and this whole Realme of England and the people of the same to the Lawes Imperiall commonly called the Civill Lawes and to their Canons for ever to subiugate c. b Mich. 21. H. 8. Coram Rege Now although the Civill Law deserves as much honour as can be given it and commands and is obeyed much abroad yet this Law of the Land held the possession here by a long unquestionable prescription and after the tryall of many ages got the affection of the people whose fathers grew up happily under it which was not easily to be removed the rather because seldome doth any Nation willingly submit to or welcome the Customes and Laws of another which they have not been acquainted with and our Judges who wil not in our Books part with one of its Maximes c 2. Jnst it 210. would not have fallen downe before the shrive of any unknown Themis and have offered up the whole tables It were no hard matter to heape up testimonies Vid chap. 3 if some would thinke it lawfull to trust men in their owne arts or professions and can it not but be more reasonable that such should be heard in the defensive then that those who professe full Hostilitie bringing with them onely mistakes of their owne prejudice should sit Judges of the tryal which is in their own cause and if thus far the reines be given to turbulent desperate spirits every thing how sacred soever may be arraigned at these tribunalls the articles of our faith will quickly totter nor will any principle be safe This discent will be fatall there being no stay in the precipice the bottome onely must receive men where he that falls is crushed to pieces what is worse those unhappy ones who follow cannot see their danger Thus we have seen what the common Law the Liberty and Franchise of the free people of England the law of the land is The law of antient time d. 27. E. 1. of old time used e 25. E. â— the old law f 42. E. 3. for ages according to the judgement of these Parliaments makes the law more venerable it is an addition of honour to it Now it followes in order to speake something of the Antiquity of this law The Antiquity of the Law But as the beginnings of things sometimes are rather guessed at then knowne it is no wonder that there should be no generall agreement here of opinions some will make the Law a Colossus of the Sun knocking the Starres with its head more ancient then the Dipthera or Evanders mother others a late small spark struck from the clashing of the Norman Swords the child rather of Bellona then Jove terrible in the Cradle the truth being mistaken by both To relye upon the authority of a Chancelour or rather chiefe Justice in the time of King Henry the sixth upon which the * r. 2. Epi. r. 6. Epist antiquity should be raised was lesse then that of Aventine who professed History where after a prodigious linke of German Kings before the Arcadian Moone he will needs bring his Dutch to the Wars of Troy which he proves out of the laws of Charles the 4. who lived lesse then two hundred yeare before Aventine and some three hundred yeares before us from which he is peremptory there must be no appeal g Boicar Hist 49. for a great Lawyer continually imployed in the publick affaires or in his study where his many volumes upon the law show the whole man might well be taken up to faile in a piece of History if he may justly be said to faile this way who onely trusted another who was carelesse It is no blemish such as can deserve the censorian rod of our Criticks besides all men love to consecrate their originalls This is allowed to antiquity saies Livie mixing things humane with divine to make the beginnings of Cities more majestick and we may say as he doth of his Rome of our Lawes if it be lawfull to canonize any to carry them up to Heaven or fetch them downe from thence that glory alone is due though it needs not to the most sacred lawes of the land Sir John Fortescue his words are to this effect That if the lawes of England had not bin most excellent the Romans who cry up their Civill Law Saxons Danes or Normans had altered them h de lg Ang l. c. 17. by which our Lawes must be Brittish at least and our
must needs then be The Hundred which was ten tythings a Germanie Institution q Gapit Car. Calui apud siluacum where every man was bound to attend in the North called Wapentake then the Trything Thryhing or Leet the Jurisdiction of which extended over the third part of a Province containing three or four Hundreds r Ll. Ed. c. 34. The County Court called gerefas gemot the Sheriffs gemot or Court to be held by the Institution of King Edward the elder every fourth weeke where the Sheriff was to decide civill and prediall causes and every sfraec as there plea was to have an end at the day Å¿ Ll. Ed. sen c. 11. The supreme Provinciall Court was the Sciregemot or Shire Court the same which now we call the Sheriffs turne kept twice the yeare where the Thanes or Noblesse were bound with the Freeholders to be present the Bishop was Judge for Church-matters and the Alderman of whom below for things secular here was the Assembly of all the Hundreds t Ll. Eadg c. 5. ll Aethelst m. s c. 20. Il. Cnuti c. 7 â— p. 2. here Causes Civill and Criminall were determined This Court and its Jurisdiction was very ancient being famous and used in the same manner amongst the Franks and Lombards as may be seen by their lawes u Ll. Car. Lud. Im. l 4. c. 26. Car. m. Lom l. 2. tit 52. Ll. Aleman tit 36. VVilliam the first divided the Jurisdiction and confined the Bishop with his Causes Ecclesiasticall to a Court by himself which were discussed in the Hundred and Court of the Shire before which appears by that sanction of this King directed to the Earls Sheriffs and all the French and English so it speakes who have lands in the Bishopricke of Remigius Bishop of Lincolne though there onely the Hundred bee named w Not in eadm 167. yet there is added The Episcopall lawes which were not well kept nor according to precepts of holy Canons c. and as this is recited elsewhere They shall bring nothing to the Hundreds or Judgement of secular men x M. S tab Rob. Winch. Arch. Cant. in eadm 168. and every secular Court is alike forbidden to Church-men by the Canons In one or other of these Courts in the lesse or greater all causes were to be determined at mens homes and at their owne doors if the parties would rest there no man ought to sue out of the County to draw his Plea from thence without good cause which might be pretended then and in every remove ought really to be now as appears by the Tolt Pone Accedas ad Guriam and Recordare This good cause was if the Suitor could not have Justice at home or what he had was rigour and summum jus then might appeales be to the Palace to the King there whose Court is called the High Court of Justice for law and equity y Ll. Aelfr c. 38. Ll. Edg. c. 2.11 Cnuti c. 16. after the manner of the ancient Jewish Commonwealth a course observed sayes the most knowing Knight all Europe ore z Gloss tit Cancellaria Our antient Kings as he swore before the Realm and the Priesthood right Judgement to doe in the Realme and Justice to keep by counsell of the Peers of the Realme a Ll. Edu Con. c. 16. viz. In this Court every City and Borough had their Courts the Burgmote kept thrice the yeere the Wardmote the Husting the most antient and supreme Court of the City of London is of Saxon extract which every Munday used to be held now on Tuesday yet does the stile still say held on Munday Lincolne Winchester Yorke and Shepey have their Hustings it held Pleas as it does of things reall and mixt Judges there were too in the manner we finde after the Normans who changed only their name from Aldermen to Justices There was the Alderman of all England Chief Justice as Ailwin Founder of the Church of Ramsey was called upon his Tomb The Kings Alderman as the most knowing Knight thinks b Gloss tit Aldermannus like the Missi c In Capit Gar. m. Franc. ll as our Justices in Eire or of Assize The Alderman of the County Iesse then the Earle but equall with the Bishop which three sate together in the County the Earle was to take care of the Commonwealth the Bishop of the Church the Alderman of the County to declare and expound the law c Gloss ibid. Besides as to execution of publike Justice upon the contumacious he might which our Posse of the County resembles use force raise the people This difference is plaine in that law of King Aethelstane Be Æ¿erum of the estimation of heads d P. 55. part 2 ll v. ll Jnae c. 8 Faedus Regum Aeâ—fr Gath. m. s in gless citant where the were gild or price of an Archbishop and an Earls life who are joyned as equall is fifteen thousand thâ—imsa of a Bishops and Aldermans who next follow and are joyned but eight thousand c. Sometimes the same things are said of both the Earle and Alderman so that they may easily be thought in those places the same This was a Salic Institution to substitute thus two or three under the Earle whom they called Sagibarons as Ingulphus who is altogether for King Aelfred King divided the Governours of Provinces who before were called Vicedomini into two offices into Judges whom now we cal Justices and into Sheriffs yet he has in our Charter Bingulph a Vicedominus which Title the Justices yet in Ingulphus retained and Alferi a Sheriff e In An. 948. The Saxons had their Hold or Heretoch their Military Commander in every County Places had their Bilaga by-lawes besides the Common Law Law made by consent of Neighbours now by the Homage in a Court Baron Suiters in the Leet or view of Frankpledge in towns by the Inhabitants and Neighbours as M. Lamhard The Saxons our Ancestors retained the manner of the old Germans their owne Elders who in Tacitus Jura per pagos vieâ—sque reddehant made distribution of Justice not onely in one Towne or in the Princes Palace but also at sundry other speciall places within the Countrey and as he truly the Normans who invaded the Posterity of the same Saxons here did not so much alter the substance as the name of the Saxons order f Archâ—ion 89. But to satisfie those to whom the Normans may be as odious as their Conquest although perhaps they may be Normans themselves most likely descended by some Mother from them and may seem as fond as if now at Millaine or Pavie after so many hundred yeares they would indeavour to distinguish the Lombard and Insubrian the Insubrian Gaule from the Italian in France the Gaule and German-Franke in Spaine the Carpetane and Wisigoth I say to satisfie them I will prove by the testimony of those who lived then when this Norman change is imagined
my Cottages c. together with my Piscaries as well in the marches adjâ—cent as in the sea coming up to the same Town c p Ingulph 913 914. Plain denotations of the Villein regardant this was done in the tenth yeer of Edward the Confessor fifteen yeers before the Conquest and unlikely those rents services and the villeinage of these men should begin the day before the grant This Ingulphus himselfe makes plain It is sayes he to be declared that in the seat of Crowland villeins borders nor Sochmans are not received unlesse out of fear of war over our heads q p. 911. I should think this Sochman very base neither of much esteeme nor freedome where he is so ranked and keeps such company as in these places Nor here was our law more inhumane then those of all other Christian Nations The Civil law suffered this slavery till Justinian by a general Edict restored al men to their freedome it was frequent in Germany till the reign of Lodowick the second The villains there were affranchised with reservation of day works and Escheates which hold yet in the low Countries and in France c. saies Bodin r Republ. luire 1. In Poland the Villein is yet in being he is called there Kmetos and may be killed by his Lord. Lewis Hutin freed many of these from their servile condition in France Humbert those of Dauphine Thibalt of Blois those of his Countrey Charles the seventh of France others Henry the second the Bourbonnois Emanuel Philibert of Savoie did the same in his Countries The Lord of la Roche Blanch in Guascgogne Å¿ An. 1558. in Boains time pretended not only a right of succession to the goods of his Subjects so the Peasant or Vassall under the jurisdiction of any Lord is called called by the French main-morte but also that they were bound to plant his Vines till his Fields mow his Meadowes reape and thresh his Corne build his House to pay his ransome and the taille in the four cases anantiently accustomed viz. for Knighting the Kings eldest Sonne marriage of his Daughters voyage over Sea and Captivity and if they stragled out of his Lands without his leave to bring them backlike Beasts with halters about their necks which last part was cut off by arrest of the Parliament of Tholouse By all this it is manifest in these things there is nothing singular nothing without example the greatest could be given and let the Normans and their entrance be as injust as is imaginable never to be forgiven such as no satisfaction can expiate These are no crimes of that Conquest and ought not to be involved in the name CHAP. III. Of the Courts of Justice of Suites of Counsellours of the Judges of Writs Pleadings the Termes of Art Hotomans censure of Littleton the common Lawes may easily be digested into method their principles and excellency in severall respects mercy c. confirmed by Parliaments and testimony of others not of the profession the professours honourable NO Nation can compare with us in the Justice and Majesty of our Courts Courts where so generall is their extent and power to redresse wrongs every man let the injury be what it could and done by whatsoever great injust man might be righted nor are there any Supernumeraries amongst them Courts of no use but to vex and intangle The first judges posito modo praetor aratro are said to give Lawes to administer Justice to the people while the Plough rested but upon the same reasons which make Lawes at first as is said plaine and simple multiply Courts must needs grow more numerous In the Saxons times besides the lesser Courts before discoursed of to relieve men at their owne doores There was but one high Court of Justice ever moving with the Prince which judged as Mr Lambard out of those Lawes of appeales forbidden where Justice might be had at home not only according to Right and Law Sup. 59. but also after equity and good conscience the words of the Lawes are unlesse he cannot find right at home or right be too heavie t Ll. Edg. c. Ll. cnum 16. in this Order faies the same Mr. Lambard and in these two sorts of Courts was all Justice administred till William the Conquerer w Arch. 20. and after him this Court continued under the chiefe Justice of England ordinarily which great Officer the first man next the King alone had the power of the Chief Justice of the Pleas of the Crown of the Chiefe Justice of the Common Pleas till the nineth of King Henry the third according to that of Magna Charta the Common Pleas shall no longer follow the Kings Court though this Charter was before granted by King John in the 17. of his reigne it should seem by the charge against that much wronged gallant man Hubert de Burgo chiefe Justice in King Iohns time and in the time of Henry the third after the death of William Earle of Pembroke chiefe Justice 4 H. 3. that this huge office was not shrunk that the chiefe Justice was then whole and intire x Ma. Pa. addiâ— 149. besides the pleas of the Crown and common pleas he had the power of the chiefe Baron of the Exchequer and of the master of the wards y Addit ubi sup and sometimes commands armies z Ma. Pa. 193. an imployment too much for one man and businesse too much for one Court Upon which reasons distribution of the jurisdiction was necessary which flowing after from one Fountain by many streams into several Courts is no small ease to the people and this additional alteration is the greatest improvement imaginable Hence are derived the Benches the Chancery and Exchequer of the excellency of which and other high Courss pipes communicating justice with more speed and facility over England I wil say something but briefly my ayme being to make a tryall whether those who are not to be moved else by any other way will trust and yield to their own eyes before which I would lay things as plainly and as openly as I can and shew them that if justice onely be desired the pursuit of which lawfully and civilly is faire and honest here it is to be had it can never be deficient if the execution of things be answerable to their institution Here it is commanded That justice be administred as well to the poor as to the rich without any respect to be had of persons a West 1. c. 1. Here is said It is provided agreed and granted that all men as well high as low shall have and receive justice b Stat. Marlb c. 1. The times had been unruly before and many of the great men saies the Statute would not submit to the justice of these Courts they would be judges in their own cases distrain men grievously and take such revenges as they thought fit c Stat. Marlb ibid. Here as another Statute The Justices
the undoing of both of them Gentlemen of a good and ancient family commanded the Lord Chancellour to assemble all the Justices of England before him upon conference to give their resolutions Which they did one Justice disagreeing Chudleight case in the same report is said to be so difficult and of so great consequence it was thought necessary that all the Justices of England openly in the Exchequer Chamber upon solemn Arguments should show their opinions in it where the chief Baron and Justice Walmesly are dissenters as also Justice Gawdy in part Till the first of king James there were but four Judges of either Bench and many times as the same Lord Cook k 4. Rep. Pâ—af in cases of great difficulty the Judges being equally divided in opinion the matter depended long undecided for prevention of which this King added a Judge to either Bench. Retractations may be allowed in law as well as in divinity a man may differ with himselfe believe and apprehend truely and ingenuously and with Judgement this way or that way and after when he shall hear the reasons of others and the same case debated solemnly by the most grave most wise and most reverend of the profession not onely startle and doubt but but believe and like the contrary of what he liked before truly and ingenuously still without any blemish of dishonesty or falsenesse to be stuck upon him for it truth is said to be the adaequation of the speech with the species and if here any miâ—take be as there may the falsenesse is in the notions not in the man who speaks and thinkâ— he speaks truth I know no reason where there is no leading judgement to sway why the professors of the lawes should certainly be supposed to know the right and on which side it is as if infallibility were so ready or likely to be where as the Mirrour joyns them There is no law nor usage and where there are no presidents to direct Cases not being included in any words of law may be compared with the reasons of other cases according to similitude fancied and opinion so produced is but an incertain and weak knowledge thus or thus which yet may well be otherwise every man knows how far the Topic argumentation comes short of the necessary further as Sir John Davies When is right or wrong manifested upon the comencement of a suit before it is known what can be alledged and proved by either party The Councellor when he is first reteined hears onely one part of the matter and that also from his Client who ever puts his case with the best advantage for himselfe after pleading of the parties when they are at issue when they have examined witnesses in course of equity or are discended to a tryal in course of law after publication and hearing in the one cause and full evidence delivered in the other then perhaps may the Councel of either side dicern the rigt from the wrong and not before But then are the causes come to their catastrophe and the Councellours act their last part l Praef. ded f. 6 7. Thus as there are diversities of opinions amongst the professours of the lawes we see there are invincible reasons why sometimes there must be such diversities and I would gladly know where there is any general agreement of mindes A great man of the Clergy but no great lover of the laws or lawyers notes one Judge very hastily determining against others do not Councels often do the same the later quite thwarting those which went before and what he grants are not Divines divided against Divines not only in things of Ceremonie but of Faith If we look upon other Arts and Sciences we might think all things made from Heraclitus his principles that strife was the father what dissonance of opinions what knots never to be untyed sayes the incomparable Petrarch upon the discourse of discord are there amongst the Philosophers Who can number the varieties of their Sects what conflicts amongst Rhetoricians what discords of all Arts what clamours amongst the Lawyers those of the Civil Imperial lawes how well they agree the immortality of causes proves Sick men can witnesse what concord there is amongst Physicians what unlikenesse of mindes is there about things sacred and Religion where the differences are oftner tryed in the field then in the Schools m Petr. de remed utr fort 429. l. 2. By no other law is it said is unlawful maintenance Champerty or buying Titles so severely punished as by ours By what other law askes the most learned Knight is the Plaintiffe for false clamours or injust vexation or the Defendant for pleading a false Plea amerced the amercements in Magna Charta of which hereafter were instituted to deter men from injust suits and defences n 2 Inst 28 the French impost of 100 sous upon the Processe is thought injust yet sayes the Republique never was any so necessary in this Realm where there are more suits then in the rest of Europe which have sprouted chiefly from the time of Charles the sixth when by Edict the ancient custome to condemn those in costs who had lost the cause was cassed o Bod. Rep. 889. By the Saxon lawes he that denyed another his right either in bocland or folcland before a Judge without any right forfeited to the king 30s so the next time the third time the kings oâ—er hyrnysse 120. s. for his contempt p Ll. Ina c. 8. Ll. Edu sen c. 2. Ll. Cnuti c. 7. such lawes as these which might fright troublesome spirits are of high necessity yet I think where mens own Consciences restrein them not the punishment of laws would not prevaile with all men Nor can we expect any continual peace from vexatious suits nor any security from delayes deceits in them till a Christian generous honesty diffuse it self every where and there be a general perfection of charity and love in every man which is not easily to be hoped for France may be famous for its sprightlinesse Spain for its gravity Germany for the arts what clime is renowned for any such honesty Unles the new Atlantis can be found again and its Idea of a Commonwealth the Magick Region of the Moon throughly discovered and it lye hid there Or * Euphorn Barclaie may be believed of his Lusinia so unlike the whole world beside Of which that it breeds men worthy the genius of the place and of their own fortune for so he says if it be the Country some think he means he may be credited for the rest of the innocency piety of the people it is more then I can say of my own knowledge and I would lead no mans Faith where things are not plain and certain Other causes of multiplicity of suits in these latter ages are observed by the Lord Cooke to be first peace noted before * c. 2. In the reigns of the kings Edward the 3. Richard the 2
chiefe Justice of the Common Pleas having abjured c. for murder His wife and son Petition the Parliament for a Manour which the Lord of the Fee had seised as Escheated in which Sir Thomas had onely an estate for life joyntly with his wife but the inheritance was in the son by fine There were summoned says the Record as well the Iustices of either Bench as the rest of the realme c. expert in the laws and customes c. The resolution speakes Before the Councel c. there being called the Treasurer and Barons and Iustices of either Bench it is agreed c. The famous case of conveening Clerks before the secular Magistrate was debated in the time of a Parliament of Hen. the 8. the Iustices c. being present and ruled according to the opinion of chiefe Iustice Fineux a most reverend Judge y 7. H. 8. Kelle vay 183. Reasonablenesse of time for tenant at Will discharged to carry away his goods of incortain fines of Copy holds c. is to be adjudged by the discretion of the Judges z Inst 57.59 Distresses are by the Statute of Marlbridge to be reasonable a c. 4. No more is said The Judges have ever yet determined that reasonablenesse as they have ever ordinarily what is reasonable in other things just and injust right and wrong what are evil customes and what not according to the Laws they have the use and customes of judgement saies a Statute b De Bigaem c. 1. Good reason then that they be Judges of that use and those customes They may claime this authority by a long prescription it has been allowed them in all Parliaments and by all Parliaments hitherto c V. 1 H 7. 3.4.20 3 Just 3. They in all the books doe not onely expound interpret and deliver the sense of Statutes but in Parliaments too upon consideration of a Bill in the 43 and 44 of Queen Elizabeth it was resolved so we finde a book speak By the chiefe Iustices Popham and Anderson and by divers other Iustices assistants to the Lords of Parlia ment in the upper House That leases to the Queen c. against the provision of the 13 of El. are restrained by the same act d 5. Rep. p. 2.14 The Lord de la Wares case concerning disability temporary and absolute was in a Parliament sitting referred to a Committee which at the Lord Burgley's Chamber in White-hall heard what could be said by Councel in the presence of the two chief Justices and of divers other Justices by whom it was resolved e Rep. 11.1.39 El. Here is an allowance of the latter as wel as former ages whatsoever the change may be let us change till we shall not know our selves if we retaine any face of Law or Judicature so it must be I never heard nor those who have heard more of such a Law yet which could be learned practised and understood without study and which all men but those who had studied and understood it might be Judges of The professed enemies of the Laws of England as such lawes have not been many no not in very many ages much stirre there was much disquiet ere they were had or rather restored Never any tumults all the Histories ore to undoe what was setled I doe not remember any other Law named against it but the Law of Wat Tylers mouth f From this day saies Tiler in London all Law shall fall from Wat Tylers mouth which we can make nothing of we heare of Kets Oke of reformation nothing of his Lawes The Lawes never were made the title of a rising yet I believe under such leaders little of the building would have stood whole Those of the Roman heresie are and have been inveteratly spightfull have more then once attempted to blow the Lawes and the Nation into the ayre together according to that divine determination of the Jesuiticall Oracle that the innocent may be destroyed with the wicked the Wheat plucked up with the tares g Act. p. 93. They would have blown up all our Laws though all of them are not accused not slandered by them not in what I have seen of theirs though likely they shal all have their turns not one of them not yet perhaps traduced by them as they are offended by it if it keep their mischiefes from ripening and be executed against them though much more ancient then our quitting them and their heresies and approved by their own Clergy here but it shall be reproached by them as one of our Statutes Our Laws though necessary and religious against them being called by them cruel Laws h 3 Jac. c. 1. The Statutes of praemunire and provision c. are abominable Parsons the Jesuit that fury of sedition charges the Law of Cawdries case highly and with the least dangerous Ponyards and daggers of his society wounds as he thought the reverend reporter Andrew Eudaemon as others Cacodaemon Johannes in love with the Straw miracle of the Gunpowder Martyr Garnet condemnes our Laws and Courts and the triall by twelve men like Polydore Virgils Ghost in his words He was of Crete so he saies and if we believe him in that we must believe him in nothing else The Jesuits were ever undermining ever active full of plots and treasons and their hatred cannot be imputed to any other cause but this for the ills they had done they feared the barre yet this arrogance they might take from the house of pride of which they were The Prince of which has ever till we left him where he had left the purity of the first ages encroached upon our Lawes and government praetending every where a certain assistance of the holy Spirit for which he is to be obeyed a course I would advise those to take who inveigh next and have nothing to say to the purpose The Pope as the Venetians in the interdict tell the French Kings Ambassadour attributes to himselfe authority to define and determine even against the opinion of all the world what Lawes are just and unjust as Dr. Marta Besides the kisse of the blessed feet he has the free faculty of making and abregating Laws i D' jurisd c. 46. Whence this authority is derived some are not assured they referre it to the spirituall authority with which the temporall is imagined to be indirectly given Others speak plainly that he is a temporall Monarch over all the earth that he might receive appeals from Princes give Laws to them and annul those made by them That Ecclesiasticks are to examine whether the Lawes of Princes be just and whether the people be obliged to obey them if we doubt this think it with the most if we tell the flatterers and Parasites of this chaire the former ages heard nothing not a word of all this They may reply in the words of Paul the 5. That the former Popes did not wel understand themselves a great and certain mark of this
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
to be that there was no such overturning of things as is believed The Title of the Lawes called the Lawes of King William the first published by M. Selden with his learned Notes upon Eadmer and since with the Saxon Lawes is this These are the Lawes and Customes which William the King granted to the whole people of England after the Conquest of the Land these were those which the King Edward his Cousen beld before him In these Lawes recited by Hoveden in the life of King Henry the second ' King Edwards Lawes are confirmed in these words This we command That all men have and hold the Law of Edward the King in all things together with those Lawes which we have added for the profit of the English g Pars Poster 661. This Confirmation was not freely given but in this manner King William having heard the Lawes of the Danes and Normans and approved them as the Chronicle of Lichfield having approved the Lawes of those of Norfolke Suffolke Grantbridge and Deira c. he commanded they should be observed through the Kingdome as more just then any others because himselfe and his Barons were Norwegians by extraction not a word is there of any resolution to introduce his Norman Laws this the English thought a more killing blow then that of his Victory they beseech him and by the soule of King Edward c. to permit them to injoy their owne ancient Laws and Customes under which their Fathers lived themselves were borne and bred up to wit the Lawes of holy King Edward and they tell him it could not but be very hard to receive Lawes unknowne and to judge of those things they understood not h The Paraphrast of these Laws Chron. Lich. The King long resolute at last yeelds and as these with much authority were venerate and through the whole Realme corroborate and before other Lawes of the Realm the Lawes of King Edward not because he found them but because be restored them sayes Gemeticensis of the same age with King William i l c. 9. The Chronicle of Lichfield and Hoveden are more large with which agrees the first Chapter of the Lawes of good King Edward thus it speaks Which King William confirmed all of them use neer the same expressions By Precept of King William say they are elected out of every of the Counties of all England twelve of the most wise men who were injoyned before King William that in what they might neither declining to the right hand nor the left in a direct way they should lay open the Constitutions of their Laws and Customes nothing omitting nothing adding nothing out of prevarication changing k Hoved. 601 Chron. Lâ—ch ll Ed. c. â— Further yet in that Chronicle Aldred the Archbishop of Yorke not Thomas Archbishop of Canterbury as the Paraphrast would have it there being no Thomas of that See till lawlesse Beckets dayes who as this and Malmesbury crowned him l Malmsâ— l. 3. 〈◊〉 vita Pontific and Hugh Bishop of London by command of the king writ with their own hands what the foresaid jurates said from the laws of holy mother the Church beginning c. Ingulphus Secretary to William in Normandy and after made Abbot of Crowland by him is witnesse enough alone and as he I brought this time with me from London where he had been about the businesse of his house to my Monastery the laws of the most just king Edward which my Lord William the renowned king of England had proclaimed authentick and perpetual all England over to be kept under most grievous penalties commended to his Iustices in the same tongue they were set forth m Ingulph p. ult This proclamation was not all to allay the stormes which perhaps the violation of these laws had raised for the good of peace says an ancient Monk He swears upon all the reliques of the Church of S. Albane touching the hol Gospel Abot Fretherick ministring the Oath the good and approved ancient laws of the realm which the holy and pious Kings of England his ancestors and especially King Edward set forth inviolably to keep n Vita Ab. S. Aâ—b 8. s â—0 that the English laws were in use then I can prove out of that famous plea of Pinnendeâ—e betwixt Lanfranck Archbishop of Canterbury and Odo Bishop of Baieux and Earl of Kent there it is said the King comanded al the County without delay to sit all the French of the County especially the English in the antient laws customes skilled to assemble o Not. ad Eâ—d 198. William the 2. promises onely easie laws justice equity and mercy and laws desirable p Hunting l. 7.372 ead 13. Ma Par. 14 Heved in h. 1. which his successour Henry the first construes and there could be no other meaning to be meant of these laws he swears To take away all the injustices and oppressions of his brother promises the good and holy laws to keep and to strengthen the liberties and ancient customes which flourished in the realm in the time of S. Edward the King q Ead. 55. Malmsb. in Hen. 1.156 Ma. Pa. 55. and in his laws he says The law of King Edw. I grant you with those amendments made by my father with the counsel of his Barons r Ll. Hen 1. c. 2. Ma. Pa. 56. and in the same place those things which hence forward shall be done shall be amended secundum lagam according to the law of King Edward yet after he imposes a new law a medley out of the salick ripuarian and other forreign laws with some pieces out of King Cnuts Danish laws which were but a small time observed and could not take any thing from the lawes of King Edward king Stephen confirms the laws in these words all the liberties and good laws which Henry King of England my Vnkle granted them and I grant them all the good laws and good customes which they enjoyed in the reign of King Edward s Ex lib. autiqu Ll. The Londoners request of Maetildis the Empresse daughter of Hen. the 1. That they may be suffered to use the laws of Edward because as they they were the best and not the laws of her father Henry because they were grievous which she refused whence great commotions were made t Florent wig in an 11 42. cont which grievous laws certainly were that salic rapuarian Danish medly and likely enough a commotion in those boisterous times would follow the refusal many of the disquiets and tumults of those first reigns being raised upon the pretence of the breach of these laws a pretence so taking that the Noâ—mans themselves either coloured their insurrections with it or else preferred these before their own laws and ran the hazard of their lives fortune in earnest for them Henry the 2. commanded the laws of his Grandfather to be observed u Hov p. pricr in H. 2. of which below