correct the Vitious so they should begin the Reformation at home Chilon's (c) Laertius in vita Chilonis Brother desiring to know why he was not chosen at Sparta as well as Chilon he answered that he knew how to bear an Injury which his Brother did not for in Publick imployments those who are the Censores morum and chastise the Infringers of the Laws must expect Calumnies and evil Entreaties from the incorrigible and debauched and such must be resolved to perform their duty without any other by-end of Revenge Tyranny and Imperiousness on the one hand or hasty rast Cholerickness Partiality or Corruptness on the other Plato (d) Lib. 4. de LL. adviseth that the wealthiest be chosen for the better support of the Dignity but withall that they be such as are exemplary in obeying the Laws For none are more fit to serve their Prince and profit the Subjects than such as are obedient to the Laws which when they make a rule of their own Actions they will be sure to exact it of others It is great disparagement to a Prince to chuse men of vitious or uncommendable lives or such as have not worth and honour to commend them So the Princes of Europe think the Grand Seignior not so well served by Slaves nor was it so commendable in the Roman Emperors to make their Freemen of greater Power with them in the managery of greater affairs than Consuls or Senators which made (e) Praecipuum indicium non magni Principis magni Liberti Panaegyr Pliny say It was the principal sign of a Prince not great where the Freemen were great The Prince cannot be presumed to chuse his Magistrates by his own knowledge of their abilities and fitness for their several Imployments but must trust such as are about him therefore it becomes them well to know the qualifications of such as are to bear Office for the Rule of Tacitus (f) Melius officiis administrationibus non peccaturos praeficere quam damnare cum peâ—â—arint Vita Agricolae is to be observed That it is better not to prefer to Offices and Administrations such as will transgress than to condemn them who have transgressed CHAP. XXXIII Of the Soveraigns appointing Judges Courts of Justice and other Officers HAving treated in the last Chapters of such as have a general inspection into and by the Soveraigns Election and placing them a power of advising at least how the whole frame of Government is to be disposed as both Prince and People may be happy I come now more particularly to the Ministerial Officers of Justice such as are the Lord Chancellor or Keeper Lord Treasurer the two Lord Chief Justices and the rest of the Judges whether they be the Judges at Westminster or those of Assises Oyer and Terminer to try Causes in their respective Circuits I undertake this Task Lugduni tanquam Rhetor dicturns ad Aram The Author's Apology or one that procul profanus adorat The Subject being only fit to be handled by such as have read and digested the whole Body of the Laws and are eminent in the Profession of them whereas I must own my self to have tasted only so much of that Ornamental and most useful Study as may quicken a dull and languid Appetite to praise or rather admire it than that I can hope to benefit the judicious Reader by an imperfect Description of their Calling and Office who by the Sovereign are appointed to be the Oracles of the Law and the Ministers of his Justice whose great Wisdom and Knowledge all ought to reverence But as they make so great a Figure in the Government I could not omit them though it be but to salute the Skirts and hold up the Train of their Scarlet Robes SECT 1. IN Edward the Elders Days those that gave Judgment under the King King Edward the Elder 's Law about Judges Gerefa had the name Gerefa under which name Aldermen Earls Presidents Prefects Governours c. were comprehended From whence with the Germans the word Grave is used for an Earl President Judge c. and our Sheriff is from Scyre gerev Raeve or Graeve of the Shire The Charge in that Kings Laws runs thus (a) Eadweard Cyning vyt thaem Gerefum eallum that gede man swa ribte domas swa gerihtoste cunnon hit on thaere dombec stande ne wandigeth for nanum thingum folcrihte to gerecanne c. Eadward the King wills that all his Graeves give so right Judgment as they can most Righteously as it stands in their Judgment Book that is as we may suppose in the written Laws fearing for no thing or cause to declare or pronounce Right or Justice to the People The which publishing of Justice they shall appoint at certain times or Terms when they will perform it and declare the same So that in this seems to be comprehended what is more at large in the Oath of a Judge in After-Ages We must principally consider that the King is the Fountain and original of all Justice in his Kingdom The King is the Fountain of Justice therefore Bracton (b) Lib. 3. cap. 9 10. Rex non alius debet judicare si solas ad id sufficere possit cum ad hoc per veritatem Sacramenti teneatur astrictus sicut Dei Vicartus Minister in terra saith That the King and not another ought to judge if he alone were sufficient to do it being bound by his Oath to it therefore the King ought to exercise the Power of the Law as Gods Vicar But if our Lord the King be not sufficient to determine all Causes that the Burthen may be lighter divided among several Persons he ought to chuse Men wise and fearing God See Britton fol. 1. Coke 4. Inst c. 7. and appoint them Justiciaries Yet this surrogating of Judges in the Kings respective Courts doth not divest the King of his Power for as the same (c) Rex habet ordinariam Jurisdictionem omnia Jura manu sua quae nec ita delegari possunt quin ordinaria remaneant cum ipso Rege Bracton saith The King hath ordinary Jurisdiction and all Laws are in his Hands which cannot be so delegated but that they remain with the King From which and other Authorities Mr. Lambard saith (d) Archaion That the Courts derive their Powers from the Crown their original and drawing by one and one as it were so many Roses from the Garland of the Prince leave nevertheless the Garland it self undespoiled of the Sovereigns Vertue in the Administration of Justice Therefore saith Sir Edward (e) Tit. Discontinue de Proces part 7. 30. Coke By the Common Law all Pleas were discontinued by the Death of the King and Process awarded and not returned before his Death was lost For by the Death of the King not only the Justices of both the Benches and the Barons of the Exchequer but Sheriffs also and Escheators and all Commissions of
procure the Subscriptions and then tender them as it were by their number to affright the King to a Compliance or that the King to whom the Execution of the Laws or suspension in some measure surely appertains might not forbid such Petitions They singled out Sir Francis North then Lord Chief Justice of the common-Common-Pleas after Lord Keeper and Earl of Guilford Sir George Jefferies then Recorder of London now Lord Chancellor Mr. Justice Withins and others as Subjects of their displeasure for disliking and abhorring the irregular dangerous way of Petitioning But they received more Lustre and Regard in the Eyes of their Soveraign and all Loyal Subjects by their Censure than they did discredit by it It seems worth the while for Persons that have regard to the quiet and repose of the Subject to the Honour and Establishment of the Government and for the Tranquillity and Liberty of their Posterity to consider whether any mortal Man can either produce Precedent or Law to justify the Imprisonment of those Gentlemen Abhorrers of which I have spoken something before in the Chapter of Parliaments I shall now conclude with the last and formidablest sign of Sedition Of Tumults viz. Tumults which are but unarmed and Pen-feathered Rebellion They have the Mien and Standard of it only want the Artillery The fatal black Parliament disciplined them to be ready at any watch word and whatever they voted against the King or Church was ushered in by thousands of all sorts flocking out of the City and Country braving and threatning all along as they went by White-Hall and so in Sholes crowding to the Houses promising to stand by them and crying out for Justice They were so insolent and rude that they forced the Merciful King to withdraw from his Pallace to which he never returned till they brought him to his Barbarous Tryal and Murther That Blessed Kings Sence of them can be expressed by none so emphatically as by himself therefore I shall extract some of his feeling Expressions I (x) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 4. never thought any thing except our Sins more ominously presaging all those mischiefs which have followed than these Tumults And this was not a short Fitt or two of an Ague but a quotidian Feaver always encreasing to higher Inflammation impatient of any Mitigation restraint or remission Those who had most mind to bring forth Confusion and Ruin upon Church and State used the Midwifery of Tumults by which they ripped up with barbarous Cruelty and forcibly cut out abortive Votes to crowd in by force what reason would not lead Some Mens Petulancy was such as they joyed to see their Betters shamefully and outragiously abused So the Blessed King finding they invaded the Honour and Freedom of the two Houses and used such contemptuous words and Actions against him thought himself not bound by his Presence to provoke them to higher Contempt and Boldness For he saith it was an hardiness beyond Valour to set himself against the breaking in of the Sea being daily baited with Tumults he knew not whether their Fury and Discontent might not fly so high as to worry him and tear him to pieces whom as yet they played but with in their Paws Therefore thinks himself not bound to prostitute the Majesty of his Place and Person c. to those who insult most when they have Objects and opportunity most capable of their rudeness and petulancy Our late gracious Sovereign in later times when some Men were endeavouring to practise the same Methods found some offers of the like at Windsor a place of all others in which one would have thought he should have had the most Honour for the Benefits he did to that Town by his so frequent residence when first the Boys and then the Rabble were set on to shout for a Burgess of Parliament in opposition to a Loyal Person His Majesty favoured even in his own Presence The Prophetick Observation of the Martyred King is worth noting That he believes the just Avenger of all Disorders will in time make these Men and that City see their Sin in the Glass of their Punishment which needs no application but only to desire they would be so just to themselves and their Posterity as to follow no such Precedents and that none will encourage such outragious doings I shall dismiss this ingrateful Subject with the Description (y) Vâ—â—ibus truculentis strepere rursum viso Casare trepidare Murmur incertum atrox clamor repente quies diversis animorum moribus pavebaret terrebaâ—â— 1. Annal. Tacitus gives of the mutinous Tumult of Drusus's Soldiers That the Ring-Leaders when they looked to the multitude with outragious Voices made terrible noises but viewing Caesar shrunk again and of the whole multitude he saith an uncertain Murmur an horrible cry and suddenly a calm by divers emotions of Mind they feared and did affright CHAP. XLIV Prognosticks of Sedition and Faction BOdinus (a) Seditio semel accunsa quasi scantilla impetu populari repente agitatur ac totum prius inflammari solet quam extingui possit De Repub. c. 4. tells us That Sedition once kindled is suddenly fanned and blown by popular fury into a Flame which is wont to set all on Fire ere it can be extinguished The danger therefore of Faction is not to be sleighted but the Government should be watchful over the least Sparks which no Man can forbid or tell whence they may come or how far they may ravage when there is a Propensity to Faction Therefore Governours should not suffer matter of Trouble to be prepared or hatched but crush the Cockatrice in the Egg and the Monster in the Embryo especially (b) Vbi Respublica aegra quave vix cicatrices clade intestina acceptas obduxerit Clapm. de Arcanis dominationis lib. 3. c. 16. When Danger less when the Scars of late Wounds are not healed or hardned as after a Civil War when Factions are most dangerous The danger is less saith my Lord (c) Essays St. Albans when it springs only from the Discontent of the People being slow of Motion and the greater sort of small Strength without the Multitude can do little but the danger is greatest when those of higher Rank wait but for the troubling of the Waters So Jupiter by Pallas's Advice when the other Gods would have bound him sent for Briarous with his Hundred Hands an Emblem to show how safe it is for Monarchs to make sure of the Good Will of their People The motions of the greatest Persons in Government ought to be as the motion of the Planets under the Primum Mobile according to the old Opinion that every of them is carried swiftly by the highest Motion and slowly by its own Therefore when great Men in their own particular motion move violently Liberi usque ut Imperantium meminissent as Tacitus speaks It is a sign the Orbs are out of Frame Where Factions are not Combinations against the Government
Nec aliud adversus validissimas Gentes pro nobis utilius quam quod in commune non consulunt Vita Agricolae p. 308. but divided into Multitudes of little Kingdoms which made Tacitus observe That there was nothing more profitable to the Romans against the most puissant and valiant Nations than that they advised not in common CHAP. XXII Of the Government of the Britans and the Romans imposing their Laws upon them Antiquity of English Customs CHancellor (a) Regnum illud eisdem quibus jam regitur consuetudinibus continue regulatum suit De laudibus LL. Angliae c. 17. Fortescue affirms That in all the times of the Britans Saxons Danes and Normans and of their Kings this Realm was ruled with the self same Customs that it is now governed withal which he saith if they had not been right good some of those Kings moved either with Justice with Reason or Affection would have changed them or else altogether have abolished them and especially the Romans who did judge all the rest of the World by their own Laws So Sir Edward Coke (b) Epistle to the sixth Book of Reports saith the common Law of England was here before the Entry of the Romans Saxons Danes and Normans and it was never altered by any of them and so he (c) Proem to 2. Instit fol. 1. and 2. Instit fol. 3. makes Magna Charta Declaratory of the principal Grounds of the fundamental Laws of England and for the residue that it is additional to supply some Defects of the Common Law and was no new Declaration So Sir John Davis in his Preface to the (d) Leges mâ—â—ibus receptâ—â— majoris sunt Autoritatis quam leges scriptae Arist Polit. lib. 3. c. 12. Irish Reports magnifies the Common Law as Jus non scriptum better than all the written Laws in the World excelling Parliament Laws which are written coming nearest to the Law of Nature which is the Root and Touchstone of all good Laws When I read these Assertions I think it had been incumbent upon these learned Men to have deduced as far as they could by History some Testimonies of Ancient Writers to have confirmed their Positions But in none of them do we find the least offer of a Proof for what they say I think it would be a very commendable Work and very pleasant to all ingenious Persons The Benefit to have our Common Laws and Customs ascertained and compared with all Ancient Laws if some of the Long Robe would digest into Heads that which is owned as the Common Law For though Sir John Davis calls it unwritten and which had its beginning beyond the Memory of any Man living and that a Custom tryed and approved time out of mind doth become a Law to bind the People yet nothing can hinder but whatever is preserved in the Memory of Men living and owned as custom may be committed to writing Now I would not only desire it might be so written and published but that some judicious Lawyer who was likewise well versed in History and Antiquities would search out for some parallel written Laws among the Graecians and Romans as also compare all the Saxon Laws we have the Laws of the Lombards Boiarian Ripuarian and other Laws and then I doubt not but they would acquire a greater Veneration in the World and it would be known whether the Opinions of the learned Chancellor and Lord Chief Justice were to be relied upon as to the Antiquity of them before the Roman time The Glory of his Profession and of our Nation as to that learning he was versed in which was not small I mean (e) Notes upon Fortescue p. 14. ad 22. Mr. Selden hath given the best Solution to this point of the Antiquity of our Customs and Common Law that I have yet met with which I shall abstract in as summary a way as I can First he saith The Opinion of the Antiquity of our Common Law before the Civil is founded upon the Story of Brute of which the Chancellor speaks in his Thirteenth Chapter and that Story supposing him to be here more than three Hundred Years before Rome was built makes the Chancellor conclude our Common Law so Ancient but supposing there were some Truth in that Fiction how can the Chancellor be certain that the same kind of Law and Policy hath ever since continued unless an Oral Tradition may here find as great respect as it hath with some in spiritual matters The Antiquity of all Laws Therefore with Mr. Selden we may judge all Laws in general originally to be equally Ancient as being grounded upon Nature every Nation taking the grounds of their Laws from it and Nature being the same in all the beginning of all Laws must be the same Even from the first Peopling of the Land when Men by Nature being civil and sociable Creatures grew to plant common Society and I may add when they being under the Government of a Prince received Laws by his Appointment extracted out of the Laws of Nature the Necessity of Government and the Conveniences of the People we may date National Laws Now though the Law of Nature be truly said to be immutable yet it 's as true that it 's limitable and the limited Law of Nature is that now used in every State for the divers Opinions of Interpreters proceeding from the weakness of Mans Reason and the several conveniences of divers States have made those different Limitations which the Law of Nature hath suffered It falls out that in several Nations they are so disguised by the various Modifyings and Repairs that as to their first being they are like (f) Vbi nihil ex pristina materia supersit Jason's Ship that had nothing of the old Materials remaining Therefore the learned Selden adds That little follows in point of Honour or Excellency specially to be attributed to the Laws of a Nation in general by any Argument drawn from the difference of Antiquity which in substance is alike in all for as soon as Italy was peopled this beginning of Laws was there and so when there was first a State in that Land which the Common Law now governs there were natural Laws limited for the Convenience of civil Society here Notwithstanding the Opinion of the (g) De laudibus LLâ— Angliae c. 17. Chancellor that neither the Roman Civil Laws nor the Laws of the Venetians which above all other he saith are reported to be of most Antiquity nor the Laws of any Paynim Nation of the World are of so old and antient Years as the Customs or Common-Law of England and that they have weathered out the changes and overthrow of People by the Romans Saxons Danes and Normans Yet I cannot believe but every of those Nations when they obtained the Power of Government introduced their own Laws and abolished what they found not agreeable to their own Politie As to the British Laws Whence to learn the
414 415. How the House of Commons of the Parliament 1641. seduded their Members till there were not above 70 left whom the Army-Officers impeached or disliked as a corrupt Party or corrupt Majority and so fifty or sixty by the power of the Army secured secluded and expelled near 400 Members and made themselves the Commons House without them and so proceeded to vote down and seclude both King and House of Lords and voted themselves to be the Parliament of England and sole Legislators and Supream Authority of the Nation The consequences of all which are too well known to the whole Kingdom whose Calamity of Civil War and all the unspeakable Tragedies of it flowed from the packing of Members in the Commons House and the Assistance the People relying upon their Sageness and Authority afforded them How this revived against Abhorrers We had of later Years a fresh revival of the same method in the House of Commons expelling those they called Abhorrers which is so well known that I need say nothing of it yet I would recommend to all interessed Persons the perusal of two Treatises which though they pass for Pamphlets yet have been writ by Judicious Authors and those are The Lawyer outlawed and the Three parts of the Addresses which are Books very fit for Gentlemen to peruse How full and unquestioned a power the Commons have to represent Grievances to the King and petition for Redress The unquestioned Rights of the Commons to impeach any Person of the highest Quality that is a Subject for Treason or high Misdemeanors to have the sole Power in having all Bills for Subsidies Aids and Supplies to begin and I think be perfected in their House and the Privileges they petition for by their Speaker are so well known that they need no Discourse upon But I find several Judicious Persons will not allow the House of Commons to be a Court which Sir Edward Coke affirms 4. Instit p. 28. Whether the House of Commons be properly a Court. and uses this only one Argument for it Because it is not Prorogued or Adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon signification of the Kings Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn it self But to this it is answered Lawyer outlawed p. 18. That if this were sufficient to denominate a Court every Committee of Lords and Commons though never so few in number must upon this account be a distinct Court because they may thus adjourn and prorogue themselves without their respective Houses In another place 4. Instit p. 23. the same Chief Justice offers to prove the House of Commons not only a Court but a Court of Judicature and Record for that the Clerks Book of the House of Commons is a Record and so declared by Act of Parliament 6 H. 8. c. 16. But this House had no such Book as a Journal much less any Authentick Record When the House of Commons had a Journal first before the first Year of Ed. the Sixth all their material proceedings till then being drawn in Minutes by a Clerk appointed to attend them for that purpose and by him entred of Record in the House of Lords Therefore the Words of the Statute are That the Speakers Licence for Members going into the Country be entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House and this Journal is rather a Register of what passeth than such a Record as denotes a Court of Judicature as the Author of The Lawyer outlawed endeavours to prove P. 17 18 19. Plowd Com. fol. 319. Coke 1. Inst fol. 260. because there is no Court but what is established by the Kings Patent by Act of Parliament or by the Common Law i. e. the constant immemorial Custom of former Ages for by that the House of Lords is the sole supream Court of Judicature it having never been heard of before Sir Edward Coke's fancy That there were two distinct Courts in the same Parliament Also there is no Court without a power of tryal but the House of Commons have no power to try any Crime or Offence because they cannot examine upon Oath and there can be no legal Tryal without Witnesses nor are any Witnesses of any force in Law unless examined upon Oath But I shall not enter into these Controversies Some Observations on the Privileges of the House of Commons in general but shall now lay down some general Observations and Rules which Judicious Persons have noted as worthy the consideration of the Honourable House in point of their claims of Privileges and Judicature First King James the First in his Declaration touching his proceedings in Parliament 1621. resolves That most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Stile calling it their Ancient and undoubted Right and inheritance but could rather have wished that they had said All Privileges from the Crown Their Privileges were derived from the Grace and permission of his Ancestors and him and thereupon concludes That he cannot with patience endure his Subjects to use such Antimonarchical Words concerning their Liberties except they had subjoyned That they were granted unto them by the Grace and Favour of his Predecessors yet he promiseth to be carefull of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents Secondly C. 29. None to be punished but by Legal Trial. It is to be considered That by the Great Charter it is declared That no Freeman shall be taken or imprisoned or diseised of his Freehold or Liberties or his Free Customs or be Outlawed or Exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the Land Stat. 28 E. 3. c. 3. So 28 E. 3. it is Enacted That no Man of what estate or condition he be shall be put out of his Land or Tenements nor taken nor imprisoned nor dis-inherited nor put to death without being brought to answer by due Process of Law So 42 E. 3. c. 3. it is assented and accorded for the good Government of the Commons that no Man be put to answer without presentment before Justices or matter of Record or by due course of Law or Writ Original according to the Old Laws of the Land Nulla Curia quae Recordum non habet potest imponere finem neque aliquem mandare carceri quia isla tantummodo spectant ad Curias de Recordo Mar. Sess 3. So Sir Edward Coke saith Courts which are not of Record cannot impose a Fine or commit any to Prison because these only belong to Courts of Record for which see Beecher's Case fol. 60. 120. Bonham's Case and lib. 11 fol. 43. Godfrey's Case So in the First Parliament of Q. Mary it is declared That the most Ancient
what condition soever shall draw any out of the Realm in Plea whereof the Cognizance appertaineth to the King's Court or of things whereof Judgments be given in the King's Court c. This Statute as well as that of Provisors 25 Ed. 3. was made to hinder the Subjects Appeals to Rome or to any other Court in such things whereby the King's Soveraignty might be diminished and this Statute relates to one made by King Edward the First Also in the Statute of Provisors 25 Ed. 3. reference is made to the (i) Anno 35 Regni Statute made at Carlisle by King Edward the First The Statute of (k) 16 R. 2. c. 5. Praemunire for purchasing Bulls from Rome gives an account of the preceding Statutes and further saith Whereas our Lord the King and all his Liege-People ought of right and of long time were wont to sue in the King's Court to receive their Presentments to Churches Prebends and other Benefices of Holy Church which they had right to present to the Conisance of Plea of which Presentment belongeth unto the King's Court of the old right of his Crown used and approved c. then particularly enumerates the Encroachments of the Bishop of Rome by Processes Excommunications of Bishops for executing Judgments given in the King's Courts and the translating of Prelates out of the Realm or from one spiritual Living to another against the King's Laws and Regality c. The Statute expresly declares That the Crown of England hath ever been so free that it is in no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other Under King Henry the Eighth (l) 24 H. 8. c. 12. the whole Parliament say that by sundry old and authentick Histories and Chronicles it is manifesty declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governed by one Supream Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politick compact of all sorts and degrees of People divided in Terms by names of Spirituality and Temporalty have bounden and owen to bear next to God a natural and humble Obedience The next (m) 25 H. 8. c. 21. Year in another Statute it is stiled the Imperial Crown and Royal Authority recognizing no Superior but only Your Grace and in the Chapter following the Kings of England are stiled Kings and Emperors of this Realm and in (n) 28 H. 8. c. 7. another of the same King it is called The most Royal Estate of the Imperial Crown of this Realm So in the same (o) Stat. Hilâ—â—◠〈…〉 8. c. 2. Year before the Title of Lord of Ireland was altered into King the Stile is Kings and Emperors of the Realm of England and of the Land of Ireland and in several other Statutes it is called the Imperial Crown I have inserted these to clear that by our Laws the Kings of England are under no Subjectjon to any foreign Prince or Potentate whatsoever And Mr. (p) Tit. Hâ—â— p. 21 22. Selden saith that the Supremacy is not only used by the English Sovereigns but hath been challenged by the Kings of Spain Denmark Poland the Czars of Muscovy and other free Princes over all within their own Dominions exclusive of all foreign Powers and upon the like ground of Supremacy was that Law made by King James the Third of Scotland in these words Our Sovereign Lord has full Jurisdiction and free Empire within this Realm c. A Confirmation of this Supremacy of our Kings appears in what is reported of our King Edward the Third That when Lewis (q) Quod Râ—x Anglix non se submisit ad osâ—ula pedum suorum of Bavier the Emperor had an Interview with him the Emperor stomached that the King of England submitted not himself to kiss his Feet But the King answered That he was (r) Rex inunctus habet vitam membrum in potesâ—ate sua ideirâ—â— non debet se submittere tantum sicut Rex alius an anointed King and had Life and Member in his Power therefore he ought not to submit himself to him as other Kings Whence it was that Alsonso the ninth King of Castile defining what Kings were after he had dispatched the Particulars that belonged to the Emperor says That they are every one in their Kingdoms the Vicars or Vicegerents of God placed over the People to govern them (s) Bien assi come el Emperador en su Imperio Partid 2. tit 1. Ley 5. 8. no otherwise than as the Emperor is in his Empire Whoever desires further Satisfaction in this Point may have recourse to the voluminous Collections of Mr. Pryn and other Authors that have treated of the Kings Supremacy Most of what I have hitherto discoursed relates to the King's Supremacy ab extra that he hath no foreign Superior that ought to impose any thing upon him or his Subjects contrary to his Pleasure and his Laws in his Dominions I shall now give a short Abridgement of what I find our learned Lawyers have writ concerning the King's Authority and Sovereignty in his Kingdom of England and how Wherein the King's Sovereignty consists according to our Laws in former Ages Kings have quitted some of their Royal Prerogatives In our Laws the King is stiled in Ecclesiastical matters the Supreme Ordinary (t) Cokâ— 11. 86. Calvin's Case 215. in Civil matters caput Reipublicae Pater Patriae totius Regni Pater-Familias Chief Justice c. being furnished with plenary Power to render Justice and Right to every Member and part of the whole Body (u) Coâ—â— 2 part 1 2. 24 H. 8. c. 1. 24 Eliz. c. 1. without the help of Foreign Jurisdiction Some Attributes of God in a similitudinary way say (w) 〈◊〉 8◠〈◊〉 177 2â—8 212 〈…〉 the great Lawyers are aseribed to him for the Excellency of his Person and the greatness of his Office as Sovereignty and Power Omnipresence Majesty Immortality c. In his Political (x) 〈…〉 Grand Abâ—iâ—gment part 3. p. 44. Capacity not subject to the Infirmities of others as Nonage Death Attainder c. So no Laches Negligences Defects or Stops of Blood can be imputed to or fastned upon him as is well known in the case of King Henry the Seventh (y) St. Albans vita â—en 7. p. 29. wherein it was unanimously resolved by the Judges That his Natural Capacity doth so far participate with the Politic which is superadded to the Body natural of the King that these become consolidate consubstantiate and indivisible in one and the same Royal Person and the Body Politic which is the more worthy and of a sublimer Nature is in no ways obnoxious to the Humane Imbecillity of Death Infamy Crime or the like but doth draw from the Natural Body all Imperfections and Incapacities whatsoever So that there is
Particulars of Royal Abatements Edicts or make new Laws or change any of the old standing Laws without the mutual Consent of the two Houses of Parliament He may not oppress the People or in any Arbitrary way take from them their Liberties or Estates under any pretence whatsoever without due course of Law Nor can he impose upon their (m) Stamford's Pleas of the Crown Persons what Charges or Burthens he pleaseth but according to and by the Laws of the Kingdom He cannot do any thing against the Law of the Nation or against common Right cannot change Ancient Customs for a Legal (n) Hâ—ghs 's Reports 254.263 Cousâ—uetudo lâ—galis plus habet quam concessio Regalis Custom is more available than a Royal Concession yet on the other side that Custom which advanceth against the Prerogative of the King is void He cannot impose Arbitrary (o) Petit. of Right 3 Car. 1.7 Car. 1. c. 17. payments erect new Offices of Charge to the Subject may not deny or delay Justice may not compel his People to make Gifts Loan Benevolence or Tax without consent of the two Houses The King (p) 2 Car. 1. c. 1. Coke 12.46.2 part Brown lib. 2. c. 2. Coke Instit 2 part 47 48. Petition of Right Dyer 176. may not imprison without just Cause nor keep any Mans Cause from Tryal may not send any man out of the Realm without his own Consent may not in time of Peace Billet or Quarter Soldiers or Mariners upon his People against their Wills may not grant Commission to try Men by Martial Law in time of Peace nor to determine any matters of difference betwixt Subjects other ways than by ordinary (q) 21 Jac. c. 31. Coke 11.87 Plowden 497. course of Law and ordinary Courts may not by Patent or Licence make a grant of a Monopoly or the benefit of a Penal Law or give a Power to dispense with Penal Laws in some Cases (r) Coke 11.87 He may not have or take that he hath right to which is in the Possession of another but by due course of Laws and may not make new or alter old Courts of Justice unless to be kept after the Course of the Law and not in Course of Equity Nor (s) Sheppard's Grand Abridgment part 3. fol. 49. alter the Courts of Westminster that have been time out of mind nor erect new Courts of Chancery Kings-Bench common-Common-pleas or Exchequer (t) Fleetwood lib. 1. c. 8. He may not by his last Will and Testament under the great Seal or otherwise dispose of the Government or of the Crown it self nor give and grant away the Crown-Lands or Jewels which he hath in his Politic Capacity nor give away any of the incommunicable Prerogatives By these Abatements of Power and gracious Condescentions of the Kings of England for the Benefit and Security of the Subject No Power co-ordinate with the King 's we are not to conclude that there either is or can be any Co-ordination or Coaequality of any State Order or Degree of the Subjects with the Sovereign nor any Competition of the Subjects Power in his Concurrence with the Vertual and Primary Influence of the Sovereign but a plain Subordination and subjected Ministration of the one under the Sovereignty of the other For although there is a Co-operation of the Members with the Head for the performing some Acts of State and they may seem Orders or States coaequally Authorized in the Power of Acting with the Sovereign in Petitioning for advising or consulting about or consenting upon the Kings Summons to Laws And although in judging and determining matters of Private Interest the King hath not an Arbitrary Judgment but is restrained to the Judgment to be administred by the proper sworn Judges in his Courts whom he appoints to judge according to his Laws and in the making of Laws his Power and Judgment is restrained to the Concurrence of the Nobles and Commons in Parliament yet in all other things wherein he is not expresly restricted by any Law of his own or Progenitors granting he retaineth the absolute Power as in the particulars before mentioned and in the Chapters of Parliaments I shall further discourse In the Rebellion under King Charles the First the (u) Observations on His Majesty's Messages c. The Rebels in 1641. would have lessened the King's Sovereignty and placed it in the People or their Representatives Pencombatants for the Party knowing they had the whole Current of the Laws against them made a great noise and bustle with Sophisms and plausible specious Pretences to captivate the Populace and nothing was more frequent than the Misapplication of that of the Philosopher That the King was Singulis major but Vniversis minor Inferring from thence That the Collective Body of the People and their Representatives were Greater in Authority than the King In answer to which it may be observed That the Aphorism how true soever in any other sense is most false in any sense of Sovereignty For if it be meant That the King is a better Man only than any of us single this doth not tell us he is better than Two and this is no more than possibly he might be before he was King For we must needs look upon Princes as Persons of Worth Honour and Eminency when taken from the People which the superaddition of Royalty did not destroy Besides any Lord of the Land may challenge such a Supremacy over all the Knights and any Knight over all the Esquires Furthermore if Princes be Sovereigns to single Persons of Subjects only and not to the universality of them then every single Subject by himself is a Body Politick whereof the King as King is Head and so the Publick Community is out of the King's Protection he being no King as to them in a complex Body Such impudent Falsities and many more destructive Consequences flow from such absurd Principles And if the Maxim were true the People have placed a King not over but under themselves But they enforce the Argument still further That the Fountain and efficient Cause of Power is the People and from hence they say the Inference is just That he is less than the Universe But the (w) Answer to Observations p. 10. Consequence is rather the contrary For suppose the People were the efficient Cause of Power it can be no otherwise than by translating or deriving their divided Power and uniting it in him Since then they cannot retain what they have parted with nor have what they gave away it follows That he who hath all their Power and his own particular besides must needs be greater and more powerful than they it being a very great Truth That he is the only Fountain of Power and Justice Another of their Maxims was That quicquid efficit tale illud est magis tale And they assume But the King was made by the People therefore less than the People In answer to which it is
proved that he brought in the Feudal Law of Tenures and much of the Norman Laws and that in his time and for an Hundred years after the Justiciaries or Chief Justices the Chancellors Lawyers Ministerial Officers and under-Judges Earls Sheriffs Bailiffs Hundredaries c. were all Normans likewise the Military Men and Lords of Mannors mostly were such and in his Preface to the Norman History and his Answers to the forementioned Authors every where clears it and proves That though the Conqueror See for proof of the whole Eadmer Hist Novel fol. 6. num 10 20 30. Ingulph fol. 512. a. num 50. That these Great Barons as Tenents in Capite had power to make Laws and Constitutions to bind their Sub-Feudataries is apparent by what Malmsbury de 〈◊〉 Reg. lib. 3. saith That the Laws of W. Fitz-Ozborn Earl of Hereford remained still in force That no Soldier for any Offence should pay above 7 s. The Conqueror's Liberality to the Normans in the first beginning of his Reign promised fair Matters yet he observed no more of those Laws than served for his own interest Yet he also saith That where any Relaxation of the Rigor of the Feudal Laws was the benefit principally accrued to the Norman English who indeed were as active as could be expected to obtain ease to themselves and claim the Advantage of all the favourable Laws had been used in the Saxon times but they themselves were great Oppressors of those under them These Matters therefore being so copiously discoursed of by the learned Doctor I shall pass that whole matter by and come to the third Particular Sir Roger Twysden notes in the Conquerors Policy and so directly speak to the Constitutions of his Great Councils and his Sovereignty in making or confirming Laws As to the third Particular First it is clear that the Conqueror divided the Land among his great Men the Officers and Soldiers for proof of which we need no more but the Testimony of Gervase of (n) Black Book of the Exchequer Post regni conquisitionem post justam Rebellium subversionem facta est inquisitio diligens qui fuerint qui contra Regem in bello dimicantes per fugam se salvaverint hiis omnibus haeredibus eorum qui in bello occubuerunt spes omnis c. praeclusa Tilbury who saith That after the Conquest of the Kingdom and just subversion of the Rebels when the King himself and his great Men had viewed and surveyed their new Acquists there was a strict enquiry made who there were that fighting against the King had saved themselves by flight From these and the Heirs of such as were slain in Fight all hopes of possessing either Lands or Rents were cut off But such as were called and urged to fight against King William and did not if in Process of time they could obtain the favour of their Lords and Masters by an humble Obedience and Obsequiousness they might possess something in their own Persons without hopes of Succession their Children only enjoying it afterwards at the will of their Lords to whom when they became odious they were every where forced from their Possessions Because some are prejudiced against the judicious Doctor Brady for asserting the Conquerours changes that he made I hope they will give ear to what the learned Selden affirms thus * Ex quo cis Normannorum adventum praeter ipsum Regem non fuit in Anglia is qui Allodii ut lequantur Jure sundum possederit cum scilicet aliis ad unum omnes siduciarios proâ—e dixeris Dominos superiorem investiâ—urae Anctâ—rem interpesita side perpetuo agnâ—scâ—ntes Lib. 2. Jan. Ang. That some while since the coming in of the Normans there was not in England except the King himself any one who held Land in right of Freehold as they term it since in truth one may call all others to a Man only Lords in trust of what they had as those who by swearing Fealty and doing Homage did perpetually own and acknowledge a Superior Lord of whom they held and by whom they were invested in their Estates So he Now this Fealty and Homage is now held no kind of Slavery but then it was as I have elsewhere noted Let us hear what the same Mr. Selden a little below saith That the Conqueror did not totally change the Constitution of the Laws Probe tametsi dixeris eversum secundum quod disputant Jurisconsulti Anglicum Imperium Id. Gervas Tilâ— c. 23. Oblatis vomeribus in signum desicientis Agriculturae although we may truly say according to what Lawyers dispute That the English Empire and Government was overthrown by him Thus far that learned Man Let us now return to the Exchequer-book where we find That when a common miserable Complaint of the Natives came to the King that they thus exposed and spoiled of all things should be compelled to pass into other Countries At length after Consultation upon these things it was decreed That what they could by their deserts and lawful Bargain obtain from their Lords The English compound with their Lords they should hold by unviolable Right but should not claim any thing from the time the Nation was conquered under the Title of Succession or Descent Therefore he saith they were obliged by studied Compliance and Obedience to purchase their Lords Favour It is true that in the 55th Law of (o) LL. Gulielm primi Edit Twysden p. 170. William the Conqueror it is said That he wills and firmly commands and grants that all Freemen liberi Homines of the whole Monarchy of his Kingdom may have and hold their Lands and Possessions well and in (p) In pace libere ab omni exactione injusâ—a ab omni tallagio Peace free from all unjust Exactions and Tallage that is extraordinary Impositions and Taxes so as nothing be exacted or taken unless their free services which of Right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual Right of Inheritance by the Common Council of the whole Kingdom In which we may observe The English have little Benefit by his Relaxation of the Feudal Law that this was no Magna Charta made to English Men these liberi Homines were such as held in Military Service as appears by the 58th Law following and those then were Normans and the Relaxations to them were that these Fees were made Hereditary which was not frequent among Feudataries in those days and the Complaints that were made after and the amendments that Hen. 1. promised were mostly about the hard Taxes and Exactions Therefore I may conclude That the ordinary English tho' many of them might live upon the Lands they and their Ancestors had enjoyed yet their Tenure was changed and they were but Vassals to other Lords 'till by little and little by the ways I have mentioned under the first Heads they
all manner of People as well Poor as Rich that for Highness nor for Riches nor for Hatred nor Estate of no manner of person or persons nor for any Deed Gift nor Promise of any person the which is made to him nor by Craft nor by Ingen he shall let the Kings Right nor none other Persons right he shall disturb let or respite contrary to the Laws of the Land nor the Kings Debts he shall put in respite where that they may goodly be levied that the Kings need he shall speed above all others that neither for gift wages nor good deed he shall layne disturb nor let the profit or reasonable advantage of the King in the advantage of any other person or of himself that he shall take of no person for to do wrong or right to delay or to deliver or to delay the People that have to do before him c. where he may know any wrong or prejudice to be done to the King he shall put and do all his power and diligence that to redress and if he may not do it that he tell it to the King or to them of the Council that may make relation to the King if he may not come to him Sir Edward Coke (z) 4. Instit p. 103. 110 111. hath commented on the Mirror to explain all the Power and particular business of the Court and further observeth that the Patent of the King to the Chief Baron the rest of the Barons Atturney General and Sollicitor are not so long as the King pleaseth but quam diu se bene gesserint which is interpreted a place for life and there is good reason being too many changes would give too many an insight into the Kings Revenue There is a Manuscript (a) Codex niger c. 1. Nulli licet statutum Scaccarii infringere vele is quavis temeritate resistere Habet enim hoc commune cum ipsa Dom. Regis Curia in qua ipse in propria persona Jura decernit quod nec Recordationi nec Sententia in eo latae liceat alicui contradicere of Gervasius Tilburiensis writ in the time of Henry the second which gives an account how it came to be called the Exchequer from a checked Covering of the Table at which the Officers of the Court sate and saith That it is lawful for none to infringe the Statutes of the Exchequer or by any rashness to resist them it having that common with the Court of the Lord the King in which he in his proper person gives Judgment that it is not lawful for any to contradict either the Record or Sentence By which it appears that this Court was distinct from the Kings Bench where the King sate in person and that by the Institution of William the Conqueror not only the great Barons of this Realm as well Ecclesiastical as Secular but also the Justice of England as President thereof by his Office were Members of this Court and so continued to do long after as the Judicious (b) Origines Jurisâ—ic fol. 50. Sir William Dugdale hath by Precedent shown Mr. Prynne hath given us two Records out of the Exchequer (c) Commun Term. Mich. 35 H. 3. Rot. 2. 34 H. 3. and Rishanger 40 H. 3. that that King in his proper person sate and gave judgments in the Court of Exchequer and gave not only Rules to be observed about the Revenue Sheriffs and Bailiffs but also concerning punishing Blasphemy defending Pupils Orphans and Widows and how the Magnates deported themselves to their Tenents and if (d) Inquirant qualiter Magnates se gerunt erga homines suoâ— si forte non possunt plenarie corrigere tunc ostendant easdem transgressiones Dom. Regi they found them transgressing that they correct them as they can and if they cannot fully correct them they show the same transgressions to the King He hath also given an account how 54 H. 3. (e) Pat. 54 H. 3. m. 22. dorso Incep 55. Rot. 3. dorso the accounts of the Sheriffs into the Exchequer were to be digested and in Michaelmass-Term the same Year how the Barons of the Exchequer were to administer the new Oath to the Mayor Elect of the City of London likewise in the same (f) Animadv fol. 55 56. Author there is a large refutation of Sir Edward Coke's Opinion that the Statute of Rutland as he calls it was a Statute made by the King Lords and Commons where it is proved against Sir Edward that it was made for the ordering of the Exchequer at Rothelan in Wales by the King and his Council and not at Rutland but I shall not enter into such Particulars There are several other Courts which have peculiar Jurisdictions by the King's Grants and Prescription as the Court of Requests abolished 17 Car. 1. The Court of Chivalry Court of Marshalsea of the Admiralty and that for redress of delays of Justice which Sir Edward Coke and others have treated of at large and fall not so necessarily for me to discourse of So I shall proceed to the Itinerant Justices and of Assizes and Gaol-delivery SECT 7. Of Itinerant Justices and Justices of Assize and Nisi Prius SOme Shadow of this we find in the time of the Conqueror when Geofrey Itinerant Justices Earl of Constance and some other Barones Regis did sit at (g) Regist Ecclesiae Eliensis fol. 24 b. Kenteford to hear and determine the Claim touching the Rights and Liberties of the Church of Ely at that time disputed before them But the settlement of the Constitution of them was not till 22 H. 2. Anno 1176. as Roger Hoveden (h) Annal. pars post p. 148 149 150. hath related when the King held his Great Council at Nottingham communi omnium Consilio divisit Regnum suum in 6 partes per quarum singulas Justiciarios Itinerantes constituit and the Twenty fifth of his Reign at his great Council at Windsor (i) Idem p. 590 591. Et unicuique partium praefecit viros sapientes ad faciendam Justitiam ad audiendum clamorem populi he divided England into four Parts and over every Part he appointed Wisemen to do Justice and hear the Complaints of the People The Form of the special Writ from the King to impower them to act and of the Writ directed to the Sheriffs to summon all such Persons as were concerned in this Service to appear before the Justices may be seen in Sir William Dugdale's Origines Juridiciales fol. 52. a.b. In which latter Writ (k) Cl. 3 H. 3. m. 13. dorso the Persons summoned to appear were Archbishops Bishops Abbats Earls Barons Knights libere tenentes and in every Village four Legales Homines Praepositum de quolibet Burgo 12 Legales Burgenses Sir Ed. Coke (l) 4. Instit p. 184. calls these Justices in Eyre and saith they had Jurisdiction in all Pleas of the Crown and of all Actions real personal and
mixt and they rode from seven Years to seven Years These Justices in Eyre continued no longer than till Edward the Third's time for then as Mr. (m) Notes on Hengham p. 143. Justices of Assize Selden notes Justices of Assizes came in their Places though it is manifest that Justices of Assize were sooner begun For (n) Lib. 3. c. 10. Bracton mentions these Justices of Assizes in his time in these words Sunt etiam Justitiarii constituti ad quasdam Assisas duo vel tres vel plures qui quidem perpetui non sunt quia expleto negotio Jurisdictionem amittunt The form of the Writ in (o) Cl. 9 H. 3. m. 11. dorso 9 H. 3. is set down by Sir William Dugdale in which the King constitutes his Justitiarii to take the Assizes of new disseising and Delivery of the Gaol and the Command to the Sheriff is to cause (p) De qualibet Villa quatuor legales homines Praepositum de quolibet Burgo vel Villa mercanda duodecim legâ—les homines omnes Milites libere Tenentes c. four legal Men and the Provost out of every Village and twelve lawful Men out of every Market-Town and Borough and all the Knights and Free-Tenents that is all that held in Capite to do what the Justices should on the King's part appoint In 21 E. 1. (q) Placit Parliam 21 E. 1. num 12. another settlement was made that either discreet Justices should be assigned to take Assizes Jurats and Certificates throughout the whole Realm viz. for the Counties of York Northumberland Westmoreland Cumberland Lancaster Nottingham and Derby two In the Counties of Lincoln Leicester Warwick Stafford Salop Northampton Rutland Gloucester Hereford and Worcester other two In the Counties of Cornwall Devon Somerset Dorset Wiltshire Southamptom Oxford Berks Sussex and Surrey two For the Counties of Kent Essex Hertford Norfolk Suffolk Cambridge Huntingdon Bedford and Bucks two and that the Assizes c. of Middlesex should be taken before the Justices of the Bench. (r) Mâ—ltis vigiliis excegitata inventa fuit recuperandâ—e possessionis gratia ut per summariam cognitionem absque magna Juris solennitate quasi per compendium negotium terminetur Lib. 4. sol 164 b. Bracton speaking of the Writ called Assiza novae disseisinae saith it was found out and contrived by much Vigilance for the recovering of Possessions by a summary or speedy Conusance without great Solemnity of the Law that the business might be compendiously determined For before at Common-Law Assizes were not taken but either in the Bank or before Justices in Eyre which was a great delay to the Plaintiff and a great molestation and vexation of the Recognitors of the Assize therefore in Magna Charta the Assizes are appointed to be taken in the respective Counties and the Patents to Justices of Assize run thus (s) See the Patent Clause and Fine-Rolls from King John to Edw. 4. Sciatis quod constituimus vos Justiciarios nostros una cum hiis quos vobis associaverimus ad omnes Assisas c. in Com. c. arainandas capiendas c. facturi inde quod ad Justitiam pertinet secundum legem Consuetudinem Regni vostri Angliae Salvis nobis amerciamentis inde provenientibus The Justices of Nisi Prius (t) Ad exonerationem Juratorum ad ceâ— lerem justitiam in ea parte exhibendum Stat. de Finibus 27 E. 1. c. 4. were first instituted by the Statute of Westm Justices of Nisi Prius 2. and their Authority is annexed to the Justices of Assize These Justices were instituted for two principal Causes for the ease of Jurors and for the speedy exhibiting of Justice SECT 8. Justices of Oyer and Terminer AS to the Justices of Oyer and Terminer they are appointed either by (u) Coke 4. Inst fol. 162. general or special Commission By general Commission they are to enquire of Treasons Misprisions of Treason Insurrections Rebellions Murders Felonies Manslaughter (w) Interfectionibus Killing Burglaries Rapes of Women unlawful Assemblies Conventicles (x) Verborum prolationibus false News Combinations Misprision Confederacies false Allegations Riots Routs Retainings Escapes Contempts Falsities Negligences Concealments Maintenances Oppressions Combinations (y) Cambipartiis of Parties Deceits and other ill Deeds Offences and Injuries whatever and to do thereupon what appertains to Justice according to the Law and Custom of the Kingdom Special Commissions were not granted unless for enormous (z) Nisi pro â—nermi transgressione ubi necesse apponere festinum remedium Cl. 14 E. 3. part 1. m. 41. dorso Hil. 2 H. 4. Rot. 4. Mich. 1 H. 8. Transgressions where there was a necessity of speedy Remedy In some cases we find the Justices of Oyer and Terminer have upon an Indictment found proceeded the same day against the Party indicted So Thomas Marks Bishop of Carlisle before Commissioners of Oyer and Terminer was Indicted tryed and adjudged all in one day for High-Treason Likewise Sir Richard Empson was indicted of High-Treason and tried all in one day So Robert Bell 10 Dec. 3 E. 6. and 10 Eliz. 4 Aug. John Felton was before Commissioners of Oyer and Terminer in London indicted of High-Treason and tried the same day by the advice of all the Judges of England SECT 9. Of the Kings Erection of Courts IN some Cases the King may erect new Courts of Justice What new Courts the King may erect and grant Conusance of Pleas to a Corporation to be kept after the Rules of the Law not in a way of a Court of Equity but may not alter the great Courts at Westminster that have been time out of mind nor erect a new Court of Chancery Kings-Bench Common Pleas Exchequer c. Although in a proper Court such as our Chancery a Judge of Equity be allowed yet if it were permitted in all other Courts to expound the Law against the letter and perhaps the meaning of the Makers according to Conscience as we speak there would soon be introduced absoluteness and Arbitrary Power Therefore great Care is taken by those that understand the Law that matters be not left to the discretion of any Persons Commissionated by the King to adjudge of any Causes So the plausible Statute (b) 11 H. 7. c. 3. of H. 7. to put in Execution the Penal Laws impowering Justices of Assize and of Peace upon Information for the King by their Discretion to hear and determine all Offences and Contempts against any Statute unrepealed was found to have Authorised Empson and Dudly to commit upon the Subject unsufferable pressures and oppressions So that (c) 1 H. 8. c. 6. soon after that Kings death it was repealed and those two brought to Tryal and executed for their oppressions So the Statute (d) C. 2. 8 E. 4. of Liveries c. by the discretion of the Judges to stand as an Original is deservedly repealed In
(p) 14 E. 3. c. 5. Stat. 1. Rot. Parl. 2 â— 2. num 63. confirmed by Parliament a Court for redress of Delays of Judgment in the Kings Great Courts raised by Statute 14 E. 3. whereby one Prelate two Earls and two Barons the Chancellor Lord Treasurer the Justices of both the Benches and other of the Kings Council have Power to call before them the Tenor of Records and Processes of such Judgments so delayed and to proceed to take a good accord and Judgment and so remand all to the Justices before whom the Plea did depend He likewise (q) 4. Instit c. 6. fol. 67. tells us That by the Common-Law it is required that both plena celeris Justitia fiat and all Writs of Praecipe quod reddat are quod juste sine dilatione reddat c and that there did and yet doth lye a Writ de pracedendo ad Judicium when the Justices or Judges of any Court of Record or not of Record delayed the Party Plaintiff or Defendant Justice and in Case the Prelate the two Earls two Barons the Chancellor Treasurer c. may not for the Difficulty determine it then to bring it to the next Parliament there to have a final accord From this whole Discourse I hope it is apparent that as our Kings authorize the Justices to do right to every one according to the Laws and Customs of England so the Judges cannot well fail of performing it Before I end this Chapter I cannot omit the inserting of some of the Expressions that I find in the Saxon Laws whereby the desire those Kings had that equal Justice should be administred is very manifest The eighth Law of King Ina inflicts a mulct of thirty Shillings upon every (r) Hwilcum scirmen oththe othrum dâ—man Shireman or other Judge that grants not Justice to him that requires it and besides that within a Week he afford him right in Saxon thus binnan seoffon nihte gedo hine rihtes wrythe The first of the secular Laws of King Edgar runs thus That every one enjoy the Benefit of right Judgment whether he be Poor or Rich but in exacting of Punishments let there be that Moderation that they may be attempered to Divine Clemency and may be tolerable to Men. The Saxon runs thus That ole mà n sy folc rihtes wyrth ge earm geeadig and him mon righte Domas deme sy on thaerebote swylec forgyffenysse swylec hit fore God ge beorglice sy and for weoruld aberendlic The third Law of the same King is that the Judg who shall pass false Judgment on any shall pay the King a Hundred and twenty Shillings unless he confirm it by Oath that he did it by Error and Ignorance not for Malice However he shall be removed (s) Et tholige a his Thegnscipes butan he aeft al thaem Cyng gebiege swa he hin gethasian wills out of his place unless he obtain the same again of the King By which it further appears that in those days the King removed and placed Judges at his Pleasure The first of the secular Laws of King Canutus runs thus First I will that Man (t) That man ribte laga upp araere aegh wylec unlaga georne assylle set up right Laws and unjust Laws be suppressed and that every one according to his Power pluck up utterly by the Roots all unrighteousness and set up Gods Right i. e. Divine Justice and for the time to come the Poor as well as the Rich enjoy right Judgment and to both of (u) Fole rihtes wyrthe him man ribte domes deme them right Dooms be deemed Then the next Law is for exhibiting Mercy in judgment that even in Capital Matters such moderation be used in imposing the mulct that it be (w) Swa it for Gode sy gebeolice for woruld aberendlice As in the Law of King Edgar attempered to divine Clemency and be to be born by Men and that he that judgeth think in his Mind what he asks when he saith in the Lords Prayer and forgive us our Debts or Trespasses as we forgive them that trespass against us and he forbids that any Christian be put to Death for any small or contemptible cause that for a (x) Et ne forspille man for litlum Godes handgeweorce his agenne ceap the he deorgevobt small matter they suffer not to perish the work of Gods Hands which he hath redeemed with a great price In the Eleventh Law we find that the King saith That by all help and work it is to be endeavoured by what reason principally he may gain Counsel that may (y) His man fyrmest mâ—g raed aredian Theode to Thearfe ribâ—ne Cristendom swy thort araeran agh wilec unlaga georne assyllan confirm such things as are for the profit of the Republick and may confirm Christian Piety and may totally overthrow Injustice from hence that Profit at last coming to the Kingdom that Iniquity may be suppressed and Justice may be set up in the Presence of God and Men. I could add more but I shall have occasion in the next Chapter to mention something of this Subject and shall only close with that Admonition of King James (z) Dalton's Justice of Peace c. 2. the First to the Judges in the Star-Chamber 1616. wherein he gave them in Charge to do Justice uprightly and indifferently without delay without Partiality Fear or Bribes with stout and upright Hearts with clean and uncorrupt Hands and not to utter theirown Conceits but the true meaning of the Law not making Laws but interpreting the Law and that according to the true Sence thereof and after deliberate Consultation remembring their Office is Jus dicere not Jus dare CHAP. XXXIV Of Justices of Peace and their Sessions SIR Edward Coke (a) 4. Instit c. 31. fol. 170. observes that the Constitution of Justices of Peace is such a form of subordinate Government for the Tranquillity and quiet of the Realm as no part of the Christian World hath the like which may be true in the particular Limitation of the Power Officers like our Justices of Peace anciently in other Countries But that in other Countries such like Officers have been appointed particularly for the preservation of Peace is evident in the ancient Laws of the Wisigothes (b) Lib. 2. c. 16. compiled by Theodoricus their King about the Year of our Lord 437. which constituted Pacis Assertores and appointed them Judges to hear and determine those causes quas illis Regia deputaverit ordinandi Potestas So in the Sicilian (c) Anno 1221. Ibid. p. 704. to 722. lob 1. tit 8. Laws compiled by the Emperor Frederick the Second we find one Title de cultu pacis generali pace in Regno servanda and another de (d) Ibid. tit 41. officio Justiciaratus where the Title Office and Commission of the Justiciarii Regionum is at large recited almost in Parallel terms with ours at this Day The
Capitularia Caroli (e) See Fred. Lindebrogus Codex Legum Antiq. magnis the Burgundian Alman Bavarian Saxon Longobard Ripuarian and Frisons Laws mention such Officers for preserving the publick Peace and (f) See Prynne 's Irenarch Redivivus p. 1. ad 5. punishing all Malefactors and infringers of the publick Peace as we have At the Common-Law before Justices of Peace were made there were sundry Persons to whose Charge the maintenance of the Peace was recommended and who with their other (g) Dalton's Justice of Peace c. 1. Conservators of the Peace Offices had and yet still have the Conservation of the Peace annexed to their Charge as incident to and inseparable from their said Offices yet they were only stiled and so now are by their Offices the Conservation of the Peace being included therein First the King is the principal (h) Idem Conservator of the Peace within his Dominions The King the principal Conservator of Peace and is properly Capitalis Justiciarius Angliae in whose Hands at the beginning the Administration of all Justice and all Judicature in all Causes first was and afterwards by and from him only was the Authority derived and given to all yet the Power nevertheless remains still in himself insomuch that he may himself sit in Judgment as in ancient times the Kings here have done and may take Knowledg of all cases and causes Before I leave this Head I cannot pass by the Act of (i) 20 H. 7. c. 11. H. 7. wherein is so fully declared the King's Care to have due Administration of Justice as in the close of the last Chapter I have only hinted The Reasons why Justices of Peace made The King's Care for right and easie Administration of Justice The Preamble saith The King considereth that a great part of the Wealth and Prosperity of the Land standeth in that that his Subjects may live in Surety under his Peace in their Bodies and Goods and that the Husbandry of this Land may encrease and be upholden which must be had by due Execution of Laws and Ordinances and so commandeth the Justices to execute the tenor of their Commission as they will stand in Love and Favour of his Grace and in avoiding the pains that he ordained if they do the contrary If they be lett or hindred they must show it to the King which if they do not and it come to the Kings knowledg they shall be out of his Favour as Men out of Credence and put out of Commission for ever Moreover he chargeth and commandeth all manner of Men as well Poor as Rich which be to him all one in due Administration of Justice that is hurt or grieved in any thing that the said Justice of Peace may hear determine or execute in any wise that he so grieved make his complaint to the next Justice of Peace and if he afford no remedy then to the Justices of the Assise and if he find no remedy there then to the King or Chancellor c. and as a further security it is added And over that his Highness shall not lett for any favour affection costs charge nor none other cause but that he shall see his Laws to have plain and true execution and his Subjects to live in security of their Lands Bodies and Goods according to his said Laws Thus we see who is the Principal Other Conservator of the Peace and Royal Conservator of the Peace others are the Lord Chancellor or Lord Keeper Lord Treasurer Lord High Steward of England Earl Marshal Lord High Constable of England every Justice of the Kings Bench and Master of the Rolls who have the power included in their Office and over all the Realm when they are present may award Precepts take Recognisances for the Peace of which and others Lambard in his Eirenarche may be consulted and how far Justices of Assise Stewards of the Sheriffs Turn and Court of Pye-powders the Sheriffs Chief Constable Coroners and Petty Constables may commit to Ward breakers of the Peace in their view though they cannot take surety at the request of any man that being peculiar to the Justices of Peace's Office Sir Edward Coke (k) Term. Pasch fol. 176. 4. Inst Coram Rege prima fuit Institutio Justiciariorum pro Pace conservanda Ad Pacem nostram conservandam saith that the first institution of Justices for the preserving the Peace was 6 Ed. 1. but Mr. Prynne will have it of older date because he finds that King Henry the Third by several Patents or Writs from the 17th to the end of his Reign did constitute and appoint several persons in most Counties of the Realm to be Guardians and Preservers of the Peace of the Realm and in the Patent 51 H. 3. m. 10.13 dorso it is dilectis fidelibus suis custodibus pacis Com. Linc. North. Ebor. Vicecom eorundem Comitat. and the like 54 H. 3. m. 21. d. But the first regular settlement of them seems to be Anno 1327. 1 Ed. 3. c. 16. The Authorities afterwards were further explained 4 Ed. 3. c. 2. 18 Ed. 3. c. 2. 34 Ed. 3. c. 1. Sir Edward Coke (l) Ibid. 171. tells us that the Commission of Peace stood over-burthened and incumbered with divers Statutes some whereof were before and some since repealed and stuffed with many vain and unnecessary repetitions and many other corruptions crept into it by mistaking of Clerks c. for amendment and correction whereof (m) Mich. 32 33 Eliz. Sir Christopher Wray Chief Justice of England assembled all the Judges of England and upon perusal had of the former Commission of Peace and due consideration had thereupon and often conferences betwixt themselves they resolved upon a reformation of the form with divers additions and alterations both in matter and method as it stood in Sir Edward's time and he saith It needed another Reformation by reason of Statutes since repealed and others expired of which he gives several instances Therefore he saith It is a good rule for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual and if at first it was made perpetual Whether it be not repealed or altered by any later Statute What Commissions Patents and Writs were issued out by King Edward the First for preserving the Peace of the Realm suppressing seising and punishing of those who disturbed it may be found Cl. 9 Ed. 1. m. 10. d. in Rylies (n) P. 443 451 to 457 433 480. Prynne's Animadv fol. 149. Appendix so there is a Patent 14 Ed. 1. m. 15. 15 Ed. 1. m. 13. de militibus constitutis ad Articulos in Statuto de conservatione pacis edito contentoâ— observandos constituting persons of note in every County to observe them named in the Record and so for other Kings Reigns