wast ground the Lord by the Law may inclose part of the waste for himselfe leaving neverthelesse sufficient Common with egresse and regresse for the Commoners And it is called approvement appruamentum that is to make the best benefit thereof by increasing the rent And if the Lord doth approve his waste not leaving sufficient Common for the Tenants the Law gives them a remedy against the Lord by writ of assize But my ayme is at inclosing of common fields used to culture and converting them into pasture whereby one grand offence and inconvenience not yet formerly mentioned doth arise The stopping and straightning of the Kings high wayes For whereas by the Statute of Winton 13. Edw. 1.5 It was commanded that high wayes leading from one Market Towne to another should be inlarged where bushes woods or dykes were so that there should be neither dyke tree nor bush whereby a man might lurke to doe hurt within two hundred foote of the one side and two hundred foote of the other side of the way except Ashes or great Trees By the meaning of which Law the Kings high waies which the Common Law had ever in high estimation were to be of such sufficient breadth that three or foure Carts or carriages might well passe in range together without any stop or impediment Now in most parts of the Kingdome within the space of these forty yeares There have beene so much Circumseption and wounding in of common errable lands and fields abutting and adjoyning to high waies by Tenants with consent of the Lord of the fee all partakers of the crime and the high waies thereby so streightned that in many places but one Cart and not without some danger and difficulty can passe and scarce two horsemen side by side without climing upon side bankes whence these inconveniences and mischiefes must needs arise 1 A great danger to his Majesties Subjects in being exposed to assassinations and robberies with little possibility to avoide or resist them by reason of the narrownesse and incombrance of the wayes 2 As great a danger to his highnesse leige people who upon necessitated occasions either for his highnesse publik service or for common entercourse and trafficke being upon the height of speed which brooks no delaie Omnis nimium long a properanti mora est doe oftentimes in streight and narrow lanes I cannot terme them waies for the way aswel as the word are become diminutives via is turned into viculi meete with countercourses and are ready for want of competent spatiousnesse which might decline the suddaine distresse rashly encounter each other to the perill of their limbes or lives 3 A manifest impairment or population of the waies themselves doth this straightnesse produce and thereby not onely makes them unpassable upon some unseasonable times weather to the great trouble and impediment of the Subjects who are inforced to compasse their journey with much tediousnesse through private grounds and other by-wayes But it doth also exhaust from the poore neighbouring Inhabitants a farre greater and more frequent charge of reparations then if they had the Statute allowance of latitude the often pressures and treadings in one tract wil sooner founder a way then if there were variety and choice of tracts which would be supplied in breadth according to that law of Winton if inclosures were not in the way Sect. 37 All the mischiefs and miserable inconveniences before cited I shall reduce in one distick Rex patitur patitur clerus respublica pauper Et non passurus depopulator erit Rex patitur The King suffers 1 First in his Royall Majestie he cannot number so many strong and able men as he might doe if tillage had its ancient esteeme In the multitude of people is the Kings honour but in the want of people is the destruction of the Prince In pautitate plebis ignominia Principis Prov. 14.28 It was the lamentation of Ierusalem Lamen 1.1 How doth the City sit solitary that was full of people how is shee become as a widow Amongst people the husbandmen are noted to be homines strenuissimi the strongest men and fittest for any labour whence Seneca observed Nullum laborem recusant manus quae ab aratro ad arma transferuntur Their hands refuse no labour who from the exercise of the Plow are trayned to the field The Law therefore of 39. Eliz. ca. 1. doth excellently set forth That the strength and flourishing estate of this Kingdome hath beene alwaies upheld and advanced by tillage and people thereby multiplied for service both in times of war and peace and by the decay of it the defence of the land against forreigne enemies have been feebled and decayed 2 Secondly in the meanes and maintenance of his imperiall state and therefore a depopulator may bee well called depeculator a robber of the Kings treasury for it must of necessity be diminished and farre shortned if sufficient Families who were able to pay subsidies fifteenes and other duties to supply the KINGS necessities aswell for the support of his regality as for the defence of the Kingdome bee utterly decayed and disabled And it is a common practice with Landlords and others to keepe tenements in their hands and insteed of Subsidies to pay the King with Certificates It is the prudent policy of a Prince in the time of peace to make provision for the maintenance of warre Nulla quies gentium sine armis the peace of a Nation cannot be without an army No armies without Souldiers no Souldiers without salaries no salaries without tributes and taxes to the Prince And where there are no people there can be no paimēts and then the desolation of a Kingdom must needs follow which I hope our Nation shall never see Sect. 38 Patitur Clerus The Church suffers 1. in the decay and ruine of materiall temples oratories chappels and houses of religion 2. abating and diminishing the number of painefull and learned Pastors 3. in robbing God and his holy Church of tythes both personall and prediall for where Towns Parishes and Villages are dispeopled there must be a failing of personall duties And where errable lands are converted into pasture there must needs insue a diminution of predial tythes sheep do never yeeld so much profit and advantage to Gods Ministers as the sheafe this is commonly sure to be paid in kind In the tything of the other which consisteth in wooll and lambe there are many slights and subtil deceipts of late crept in and many devices started up by covetous and ill disposed persons They will either shift away their sheepe from one place to another and sometimes upon a petty composition with a neighbour incumbent from one parish to another and so incumber the tything for the fall of Lambes and set a variance betweene the Ministers or they will sell their sheep a little before the time of shearing and so cheat the Minister of his dues in the title of wooll And to countenance this pillage some strange prescription
to be the third part of all the earth containing 50000. Townes were imbroyled with civill Warres amidst all their hostilities Strah li. 55. Agricolae erant sacrosancti intacti agrique corum c. the Husbandmen and their fields were priviledged from any violation or invasion and they had the happinesse quietly to apply themselves unto their Plow their vintage lopping of trees or their harvest labours according to the season of the yeare Arrianus in Indicis Whence it may be probably conceived that the industry of the people as well as the fertility of the soyle was the meanes that the earth in those parts brought forth its fruits to maturity twice a yeare This custom of the Indians grew to bee part of the Civill Law among the Romans li. 2. Synt. Tit. 27o. Sect. 21 It was the constitution of Fredericus Caesar which meetely symphonizeth with our common Law Agricultores circa rem rusticam occupati dum villis insident dum agros colunt securi sint in quacunque parte terrarum ita ut nullus inveniatur tam audax ut personas boves agrorum instrumenta aut si quid aliud sit quod ad agrorum rusticam curam pertineat invadere aut capere aut violenter auferre praesumat That Husbandmen versed about their Country affaires whilest they abode upon their farmes and whilest they tilled their grounds should be quiet or safe in all parts of the land So that none should be so hardy as presume to assault take or forcibly carry away their persons their Oxen and tooles of Husbandry or any other thing that belonged to the affaires of Husbandry The penalty followeth and deserves a due perpension Si quis autem hujusmodi statutum ausu temerario violare praesumpserit in quadruplum ablata restituat infamiae notam ipso jure incurrat imperiali arbitrio nihilominus puniendus The rash and insolent violater of that Law was to make a fourefold restitution of the things taken away to be accounted infamous by the Law and notwithstanding to be punished at the pleasure of the Emperour I shall in its proper place parallell the late Decree of the Kings great counsell and high Court of Starre-chamber against Depopulation with this imperiall constitution for rurall immunities to shew that no Law or ordinance never so strictly contrived hath beene hitherto more proportionably and conveniently medicinable for this sore then the Arbitrary proceedings of that great Court Sect. 22 The benefit and commodity of tillage and supporting houses of Husbandry will best bee manifested by describing the inconvenience of Depopulation Contraria contrarijs illustrantur And therein I shall not need to inquire any further than into the Statute Lawes of our kingdome and to take a survey as well of the preambles and the reasons therein comprised which are Medulla legis as of the proviso or act it selfe which is I may terme it medicina mali where the symptomes and circumstances of diseases either corporall or politicall are not first discried the remedy may be misapplyed In this case therefore Optima statuti interpres est omnibus particulis ejusdem inspectis ipsum statutum King Henry the seventh Lord Bacon by an eminent writer of his life is highly commended for the lawes enacted in his time to advance Husbandry and tillage Though the common Law at that time was furnished with sufficient power to defend and conserve it and to punish the delinquents yet that being lex non scripta was not so conspicuous to the vulgar eie as an act of Parliament made by all the three States whereof as every man hath by his suffrage of electing of Knights and Burgesses an interest in the making of it so he may the sooner take notice of it And therefore to prevent the then growing evill the first positive Law was made in the third Parliament 4 He. 7. ca. 19. holden in the fourth yeare of his raigne ca. 190. providing penalties against decaying houses of Husbandrie or not laying of convenient land for the maintenance of the same Eodem Anno. ca. 12. But I must looke backe upon another Statute the same time Cap. 12 0 which was made to rowze up the remisse and misdemeaning Iustices of peace of that age with more care to execute their Commission to redresse injuries and maintaine the lawes which is termed by that learned Writer Monitory and Minatory And therein amongst other enormities which did daily arise by the impunity of murders robberies felonies idlenesse extortions and other offences it is expressed that the Husbandry of this land was decaied whereby The Church of England was upholden The service of GOD continued Every man thereby had his sustenance Every inheritor his rent for his land His Majesty then did therein further declare his consideration that a great part of the wealth and prosperity of his land did depend upon the increasing and upholding of Husbandry This Statute is but by way of reflexion and strikes at this evill but through the sides of the Iustices Sect. 23 That which followes did strike more home to it i. e. the Statute ca. 190. which sets forth That among all other things great inconveniences did daily increase by desolation and pulling downe and by wilfull waste of houses and Townes within the Realme and laying to pasture lands which customably had beene used to tilth And thereby 1. Idlenesse the ground and beginning of all mischiefs daily did increase For where in some Townes 200 persons lived by their lawfull labour they are now occupied by two or three heard-men 2. Husbandry one of the greatest commodities of the Realme greatly decaied 3. Churches destroyed and the vice of God withdrawne by diminution of Church living decay of tithes and the like 4. Patrons and Curats Gods Ministers wronged 5. The defence of the land against forraigne enemies feebled and impaired The two consequences that follow of these inconveniences Are 1. The displeasure of Almighty God 2. Subversion of the policy and good rule of the land For remedy whereof it was enacted that if any owners of houses of Husbandry which had beene let to farme with twenty Acres of land at least or more lying in tillage and Husbandry And the occupiers did not maintaine the houses and buildings convenient for upholding the said tillage The Lord of the Fee had power to receive yearly halfe the issues and profits of the land untill the houses were sufficiently builded or repaired againe The Statute of 70. of HEN. 8. ca. 1. was to the same purpose not much different and so was the Stature of 27. Hen. 8. ca. 22. Sect. 24 But these acts and all other subsequent acts as namely the act of 5. Edw. 6. by which so much providence was had for the supportation of tillage as that Commissions were awarded into severall Counties to enquire of the offences and delicts committed contrary to the tenor of that Stature And the acts 2. and 3. Phil. and Mar. ca. 2. by which the
ruine for that it appeared to the Court upon evident proofe that there were many servants and people kept upon those farmes when they were used in tillage And the same were furnished with sufficient houses barnes and outhouses necessary for farmers to dwell in and many quarters of wheat and other graine out of each farme were yearly sold and vented to London and elsewhere And many poore men and women were then there set on worke and about twenty persons fit for warres were maintained in and upon the sayd farmes as also severall Carts ready and fit to doe his Majesty service both in carrying timber for repaire of his Navie and otherwise And for that the defendant had then of late yeares taken into his owne occupation all the said farmes and converted all the lands formerly used for tillage unto pasture and had also Depopulated and pulled downe three of the said farme houses and suffered the other two to run to ruine and to lye uninhabited and one of the said farmes which was before a great defence and succour for Travellers who passed that way since the Depopulation thereof hath beene a harbour for theeves and many robberies have beene thereabouts committed and monies recovered by the robbed persons from the hundred which together with the wants of those clowes there formerly kept had beene a great burden to that part of the Country And for that also the defendant to the great inconvenience and prejudice of a Towne neere adjoyning had pulled downe and suffered to goe to decay not habitable one water corne mill which thentofore did grind good store of corne weekely Vpon grave and deliberate liberate consideration the Court did with a joynt consent and opinion declare that the defendant was clearly guilty of the said Depopulation and conversion of errable into pasture before expressed And that the same offences were punishable even by the Common Law of this Kingdome and fit to be severely punished the rather for that it was a growing evill and had already spread it selfe into very many parts of this Kingdome and might in time if it were not met withall and prevented by the just Censure of that Court grow very prejudiciall and dangerous to the State and Common wealth and therefore their Lordships did thinke fit order adjudge and decree 1 That the defendant should stand and be committed to the prison of the Fleet. 2 That hee should pay a fine of foure thousand pounds to his Majesties use 3 That he should at the next assizes to be holden for that County in open Court the Iudges and Iustices there sitting acknowledge his said offences and for the better manifestation of the offence to the Countrey and to the end that others seeing his punishment might be therby after warned to forbeare the committing of the like It was ordered that their Lordships sentence and decree should be then at the said assizes publikely read And further the Court considering and commending the paines care and travell taken by the Relator in bringing that cause to judgement and being satisfied upon the hearing of the cause that the poore of the parish and the Minister there had beene severally damnified by the defendant Their Lordships did farther order and decree 4 That the said defendant should pay unto the said Relator one hundred pounds for recompence of his travaile besides his costs of suite 5 That hee should pay unto the Minister of the Parish one hundred bounds 6 That hee should pay unto the poore of the Parish one hundred pounds to bee distributed to and amongst them at the discretion of the foure next Iustices of peace adjoyning to the said Towne 7 And lastly the Court did order that the defendant should within two yeares after repaire and build againe all the said farme-houses with their outhouses and the said Corne-mill fit for habitation and use as formerly they were and should restore the lands formerly used and let with the same farmes unto the farme-houses againe and let and demise the same severall farmes to severall Tennants for reasonable rents such as the Country would afford and that all the said lands should be againe plowed up and used to tillage as formerly it had been As by the decree remaining of Record in that honourable Court may plainely appeare The true contents whereof are here set downe that as it was published at the Assizes for an example in that Countrie the benefit thereof may hereby redound to all the Counties of his Majesties dominions Sect. 53 I have the rather summarily touched the severall points and branches of this decree for these reasons That every well affected Subject may discern the singular wisdome of the Lords of his Majesties most honourable privy Counsell and their assistants in that great Court The Prayers of the Church we well hope are not in vaine That it may please him to indue the Lords of the Councell and all the Nobility with grace wisedome and understanding And without Gods speciall indowments conferred on them and on their Head under CHRIST the Ship Royall of our State could not be so religiously providently and prosperously steered as it is Methinkes when I considerately weigh the Composition of this decree all parts of Iustice seeme here to be included 1 Here is punition 1. by imprisonment 2. by fine 3. by publike acknowledgment 2 Here is remuneration to the party Relating for discovering and bringing the offendor to the publike seate of Iudgement 3 Here is compensation 1. to the Minister 2. to the poore of the Parish for the detriment and damage by them respectively susteyned according to the circumstances of the cause 4 And lastly here is reparation and restitution which concernes the Common weale 1. in repairing and reedifying the farmes 2. in restoring the Land formerly used and let with them 3. in letting and demizing the same farmes to severall Tennants at reasonable rents 4. in converting the land to tillage againe Sect. 54 As in GODS sentence the malum culpae was answered with the malum poenae So it is fully accomplished in this decree for hereby All that any way suffered 1. King 2. Church 3. Common weale 4. Poore are all righted and salved and therefore it deserves the more earnest pressing first for the comfort of those who grieve and grone under the burthen of this oppression that though they be remote in the Country from the eye of superior Iustice yet in the particulars of this decree they may tanquam in perspicillis behold a farre off the vigilant care which his Majesty and his honorable Councell have of the meanest member of his Common weale Secondly that others delinquents of the same ranke and quality may tanquam in specule as in a looking-glasse view their owne evill of sinne and justly expect the same evill of punishment Sect. 55 That no men may lull themselves asleepe with the conceipt of security and that his highnesse Subjects who feele the smart of this mischiefe may have no cause to
distrust the continuance of his care his goodnesse hath of late directed severall Commissions into most Counties of the Kingdome out of the high Court of Chancery I shall but briefly touch some speciall points therein First the motives which induced his Majesty thereunto His intelligence that in diverse parts of his Kingdome very many Messuages and Mansion houses which had been for many yeares past habitations for husbandmen farmers and others exercised in tillage did now remaine in decay ruinous destroyed or uninhabited and the farmes and errable lands severed and divided from the houses whereto they belonged and great quantities of such errable land have beene converted from culture into pasture whereupon great wast and depopulation of Towns Villages Parishes and Hamlets in diverse parts of his Kingdome have insued and are like dayly more and more to increase to the dishonour and prejudice of his Majesty and his Crowne and to the dammage and detriment of his people and whole Realme Secondly his Majesties readinesse to meete with such mischiefs and to provide for the welfare of himselfe and his people by assigning and appoynting certaine Commissioners in most parts of his Kingdome and giving unto them full power and authority under his great Seale to enquire by the oathes of good and honest men aswell within liberties as as without as also by the depositions of any credible witnesses to be called and examined upon their oathes and by all other waies and meanes and to make Certificate of the Inquisitions taken before them into the Chancery Thirdly the Subject of this inquiry What and how many Burroughes Townes Villages Parishes Hamlets Farmes Farmehouses or other Messuages or houses since the tenth yeare of the late Queene Eliz. have beene and now are depopulated wasted destroyed and ruinated or converted from the habitation of husbandmen to other uses and what lands and Tenements have been converted from tillage and plowing to other uses with diverse other particular clauses and branches Fourthly a Command unto the Commissioners to give notice unto all persons who claime title to any Lands or Tenements so wasted depopulated or separated either as heires or purchasers or by or under any person committing such depopulation and waste their Farmers or Assignes That within a time limited by the Commissioners or any two or more They and every of them doe respectively cause to bee re-edified and repaired all and singular the said houses of husbandry and all the separated lands to be restored to the houses and that the lands converted from tillage to pasture and other unlawfull uses bee againe restored to tillage and to admit of husbandmen to be Tenants to those houses prout hactenus fieri consuetum fuerit Sect. 56 That his Majesty hath full and absolute power to award such Commissions for the good and benefit of his Kingdomes welfare I thinke none so disloyall as to doubt according to the exigence of the present times for the better preparing of his intended reformation without a literall imitation of former presidents In novo casu novum apponendum est remedium variety of cases must have variety of remedies The wisedome of a Parliament or a State may foresee an insuing evill and they may enact a prohibiting of it and a provision of some paine and penalty against it but they can never provide de futur is contingentibus of future circumstances and contingencies and therefore ubi non est directa lex standum est arbitrio Iudicis where a direct positive Law cannot meet with an offence in the very apple of the eye the defect must be supplied by an arbitrary Iudgement according to the circumstances and occurencies of things Let all the Statutes that ever were made against the decaying of houses of husbandry and tilage be strictly inspected and not any one of them either did or ever could prescribe such a proportionable remedy for such a crime in all things as the sentence of that great Iudgement seat hath done Sect. 57 By the Statute of 5. and. 6. Edw. 6. cap. 5. intituled An act for the maintenance of tillage and increase of corne It was ordeyned that his then Majesty his Heires and Successors at his and their will and pleasure should from time to time direct his and their severall Commissions under the great Seale of England to such persons as it should please them to inquire by the oathes of a sufficient Iury what Lands and Tenements in every Towne Parish Village or Hamlet within the limits of their charge had at any time or times since the first yeare of King Henery the eight beene converted and turned from tillage to pasture and was then or then after should be continued and occupied in pasture and to certifie the presentment thereof into the Court of Chancery with convenient speed to bee thence delivered over into the Court of Exchequer there to remaine amongst the Records of the same Court to the end that Statute might bee the more diligently and indifferently put in execution By the Statute of 2. and 3. Philip and Mary cap. 2. intituled An act for the reedifying of decayed houses of husbandrie and for the increase of tillage citing the Law of 4. Henery 7. which is before largely recited it was ordayned that the like Commissions in effect should be awarded and that the Commissioners should have full power and athority to enquire heare and determine by the oathes of twelve men or by information or other lawfull wayes or meanes all and singular defaults and offences committed or done since the feast of Saint George the Martyr in the twentieth yeare of Henry the eighth or then after should be committed or done aswell contrary to the tenor and effect of the said former act 4. Henery 7. as contrary to one other act of 7. Henery 8. intituled An act to avoyd letting downe of houses and also to enquire heare order and determine by the said wayes and means of and concerning all grounds whatsoever converted from tillage to pasture since the sayd feast or then after to bee converted from tillage to pasture and also of all ground in or neare any corne fields newly used or imployed since the sayd feast or then after newly to be used imployed and converted to the keeping of Conies not being a lawfull warren and whereby the Corne of any persons other then the owner of the same Conies since the sayd feast had been or then after should bee destroyed or consumed And that the said Commissioners should and might bind by Recognizance the persons offending and guilty in any of the foresaid decaies or defaults in such summes of Money as to the Commissioners should seeme reasonable for the reedifying of such decayed houses and for the converting of such grounds from pasture to tillage againe and for the diminishing and destroying of Conies within such convenient time as the Commissioners should thinke meete limit and appoint with many clauses and provisoes in the sayd Statute at large expressed Sect. 58