the feudal honorary ninrges Ãegne Kings Thane who held of the K. in chief that his land only was honorary Taineland that he held by service of personal attendance by service of an Office or military attendance he maks the ðeoden Medmera Ãegne or under Thane to be feudal too * Which sein Concil Sax. 406. Now in print and the same with a Vavassour out of the M S. of Athelstanes laws sometimes at the Library of St. James he cites Si Ceorlman prove batur ut habeat 5. hidos terrae ad ut Waram which should be utfaram expeditionem regis c. That is says he held of the King by knight service w Tit. Hon. 2. edit 622 624. In Doomesday tit Bockingham scire is Burchard Teigue 1. Baro Regis Edwardi That is Baron of King Edward Amongst the witnesses to the priviledge of King Aeiheldred granted to the Monastery of Christ Church in Ganterbury is Aethelmere the kings Discthene translated dapifer Leafric his braegel thene Master of the Wardrobe Siward the kings thene a t raed of his Councel x Concil 500 501. which certainly were Thanes or Barons by the service of these places We read of those in the Saxon Cronologie who served not n ordinary lived not continually at Court * v Sax. Cron. 534 543. or neer the kings person like those in the Confessors Chatters here yet are called the Kings Thenes The words are these And in those three yeers many of the kings most choice Thenes dyed amongst which were Suithulfe Bishop of Rochester and Ceolmund Alderman or Earle in Kent and Beorhtulf Alderman amongst the West-Saxons and Wulfred Alderman in Hamptonshire and Ealheard Bishop at Dorchester and Eadulf the kings Thane amongst the South Saxons and Beornwulf the Gerefe in Winchester and Ecgulf the kings Master of the Horse his horse Thene and many other of the most noble y Cronolog Sax. 545. Which I shall make yet more cleer when I come to speak of Hereot out of the Laws of King Cnut This Law is meant of the lesse or under Thane If any Thegne which in his bockland opposite to so cland which passed without writing hath a Church and a burial place c z Ll Edg. 2 to make it more full as before is said that the policie of these Germane Nations tended much to war the very ceorlâ—â— or plowman could not under such a penalty keepe at home when an Army was to march a Lâ— Ina. c. 52. and whosoever withdrew himself from the march forfeited all he had b Concil â— Aeâ—ham c. 24. if the king were in the expedition The Doomesday says In the City of Hereford The Burger serving with his horse when he dies The King shall have his horse and armes As there Wallingford in the time of King Edward the confessor conteined 276 hages or houses rendring ten pounds of rent or gable and who remained there performed the kings service with their horses or by water We finde in the Saxons times in a gift of lands reservations of services and creation of Tenures king Aelfred at peace with Guthrun the Dane whom he wins over to the Faith gives him the Provinces of the cast Angles and Northumberland to be possessed by Foedal and hereditary right c Concil Sax. 379. Asser men vens John Pik who writ in the reign of king Henry the first says king Aelfred gave these Provinces c. Vnder fealty of the King that he might preserve that by hereditary right which he had invaded by robbery Malmesbury relates this in the same words d de gest reg l. 2. c. 4. in the Chronology we finde Here Edmund the King wasted all Cumberland and gave it to King Malcolne king of the Scots on condition that by Sea and Land he should assist him in his wars ê§ he Æ¿aere his mid Æ¿yrhta that he were his fellow in action e Cronal Sâ—x in an 945. of the first of which Harding has To whom the King gave then all Eastenglond To hold of him the Lond. Malmesbury reports in the life of King Edgar That there came to his Court Kunadie King of Scots Maleolne king of Cumberland the arch Pirate Admiral Maccuf all the kings of the Welsh Dusual Gifreth Huual Hoel Dha Jacob and Judethil whom Edgar bound to himself in a perpetual oath f l. 2. 4. c. 8. v. tit Hon. which may be called Fealty Where the same Harding recites the beneficiary Clyents or Princes who had sworne Fealty sayes Mr. * Mare claus 280. Selden to king Cnut he addes So did the Kings of Wales of high Parage And all the North-West Ocean For their Kingdomes and their Lands than There is an example of the creation of knight service here before the Normans in the lives of the Abbots of St. Albans Then sayes the Monk in the time of Abbot Leofstane and Edward the Confessor The Chilterne a small country neer the Monastery was full of Woods in which lodged divers beasts wolves not then it seems extinct bores wild bulls and deere and which were more mischievous thieves out lawes banished men and fugitives Abbot Leofstane to the profit of this Monastery granted to a certain stout knight Thurnoth and to his two comerades Waldef and Thurman the Manner of Flamsted on condition that the said knight Thurnoth with his comerades forenamed and their heirs should preserve the west parts abounding most with thievs as well from noysome beasts as theeves and answer such losse as by their neglect should happen and if common war should happen with all their diligence and power defend the Church of St. Albans which they saith he and their heirs faithfully performed till king William conquered England then that Manor was taken from them because they would not endure the Norman yoke but a certain Noble man Roger of Thony to whom that Manor fell stoutly performed that service g Vit. Ab. 46 In Doomesday is said That the Church of holy Mary of Worcester has the hundred called Oswalds hawe in which lye 300 hides of which the Bishop of that Church from the constitution of antient times has redditiones socharum regis servitium suum Which is made Socage rents and knight service 3. Rep. Praef. In an old Charter of the age of Doomesday book are these words To Edwin and all the Teigues and Drenges and to all the men of St. Cuthbert of Goldinghamshire greeting the same as Sir Hen. Spelman with Barons knights and Freeholders In Domesd tit Cestresc Of this Manour another Land fifteen men whom they called Drenches for fifteen Manors held and tit eod in Villa Wallingtone To that Manor belonged thirty four Drenches and so many Maenors they had It is cleere so the Glossary that these Drenches were a kinde of vassals but not ignoble who held by knight service one of which Drenches he conceives Edwin in Norfolk whose posterity was after called Shireburn to have been who proving
before William the first that he sided not against him and that being found true he and all those in his condition h Weentun Monum hiâ— example â—n Câ—â—ington of Sir Rob. Cotten like to lose all were confirmed in their Lands and Lordships to have and hold those are the words of the confirmation as wholly and peaceably as ever they did before the conquest By the Records of Term. Trin. 21 E. 3. Comit. Ebor Com. Northumb Rot. 191. This Drench is described thus That the foresaid Vghtred held the said lands viz. In Northumberland of our Lord the king and of his progenitors kings of England by the service of a Drench which service in the parts foresaid is such that of whomsoever he holds any thing there by such service it is held and if the Tenant dye his heire being within age the Wardship of the heir and land belongeth to the Lord of which c i D. Spelm. gloss verbâ— Dronches with the marriage Whether wardship and marriage as the Lord Cook k 4. Inst 193. no badges of servitude be of the same antiquity with king Aelfred I will not take upon me to determine the Lord Cook as also the Mirrour in the place cited by him are for the affirmative l Inst 1. p. 76.4 Inst 292. mire sect 3. graft 911. c. By a law if any man dye intestate the Lord is to have nothing but what is due by the name of Hereoâ— m Ll. Cnuâ—â— c. 68. by Mr. Lambard this is acknowledged Engish-Saxon and thought to be the same with relief one place sayes Relief or rather Herent n Not. in radwes 152 and Hereot or relief o 154. 161 id compares the Hereota to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hereor is a service and acknowledgement of the seigniory of another a tribute so Dr. Cowel given to the Lord amongst the Saxons for his better preparation toward the war In the Monastical institutions of king Edgar Hereot is called geÆ¿unlic gae ul a customary Cens or duty said to be given to the kings by the great men of this Country after geþtenege their death It is forbidden by this king to be given for all Abbots and Abbesses p In not ad eadm before as it seemeth not so free as here the words By the great men after their death make it quite another thing though it is called so from relief which is for the heir and never paid but where there is one q Gloss verbo Hereot The Hereot was to be reasonable and here again we shall see the ranks of the Saxon noblesse The Earls eight horses four sadled four not four Helmets four coats of maile and eight spears as many shields four swords and two hundred * Saxon â— Marks of Gold The greater Thanes the kings Thanes four horses two sadled two not two swords four spears as many shields an helmet a coat of maile and fifty marks of Gold The Medmere or under Thane one horse ready his weapon or as amongst the West Saxons his neck ransome amongst the Mercians two pounds amongst the Easâ—-Angels two pounds The Kings Thanes Hereot amongst the Danes who has free jurisdiction ðe his socne haebâ—e foure pound and if he be further knowne to the King two Horses one sadled the other not one Sword two Speares two Shields and fifty markes of gold The conclusion has not Infimae conditionis Thani as the Latin is But he that has lesse and lesse may be he two pound r Ll Conti. c 69. other Lords had their Hereot too The Lawes of Kings William which as the title were the same which King Edward obserued calles this which in these Lawes is Hereot reliefe and the Earle Kings Thegne and Underthane who are here charged as is said there are called and named Cnute Barun and Vavasour and charged much in the same manner Å¿ â— 22 23 24 v. c. 20. with little difference King Edwards Latin Lawes where any man falls in warre before his Lord by Land or else where forgives his reliefe t c. 3â— and gives his Heires his Lands and Money without diminution u ibid. I will observe a little out of those old grants and Charters which preceed the Normans by which the religious heretofore made their titles onely carefull to get and to be free where we shall finde other men were not so The confirmation of Pope Agatho of the new raised Monastery of Medeshamstede after Peterborough before the age of Charters w An. 680. Concil Sax. 164. recites the immunities It was to be in no ðeudom in no kinde of servitude neither to King Bishop nor Earle No man was to have any rent or tribute there in the Councel of Becanceld King Withered freed the Church from all difficulties of saecular servitude from feeding the King Princes Aldermen Earles from all works the greater and lesser grievances c. x Concil Becanceld Au. 694. Concil Sax. 190. Witlafe King of the Mercians in the yeare 833. confirmes to the Monastery of Crowland their Lands and Tenements thus I grant deliver and confirme those Lands and Tenements c. for a peaceable and perpetuall possession to have from me and my Heires whosoever Kings of the Mercians after me to succeed in puram Eleemosynam in perpetuall and pure frankalmoigne Libere quiete et solute or as we now use it quit and discharged from all saecular charges exactions and tributes whatsoever by what name soever y Ingulp hist Concil Sax. 328. as another place amongst many things done said Ceolnoth the Archbishop before the whole Councell of Kingston shewed That the aforesaid Kings Egbert and Aethelwulfe his Son gave to Christ-Church at Canterbury the Mannor called Mallings in South-saxon free from all secular seruice and tribute royal except these three expedition military fird or firdfare upon the Herebanne the proclamation or edict military and to repair Bridges Castles Brugbote and Burgbote z Concil 340. by some not to be released * Charta Eâ—dbaldi Mâ—lmsb de gest reg l. 1. Iâ—ae reg Glelienb Concit 228. which was not true The most learned Mr. Selden saies in England before the Normans were military fiefes the Earles and Thanes were bound to a kind of Knight service all the Lands of the Kingdom except some priviledged c. held of the Crown mediatly or immediately but saies he the expedition mulitary c. those three were not so much by reason of tenure as general subjection to occasions of the state a Tit. Hon. 1 Edit 321. likely so yet to recite the opinions of others there are that thinke this firdfare to be the same with our escuage the Charter of Kenulph An. 821. the Mercian King to Abingdon discharges all services but the expedition of twelue men with their shields cum scutis burgbote c. as the most knowing Knight In the antient Charters
Henry the 4 the 5 and and 6. and Edward the 4. Peace was but like the short Sun shine of a winter day overcast as soon as seen nay the reigns of some foregoing Princes as of King Stephen John and Henry the third were almost a continual civil war sometimes known under the notion of the Barons wars Then as sayes the first Statute of Westm in the Preface The estate of the realm and of the Church was ill kept the Religious of the Land many ways grieved The people otherwise intreated then they ought to be the peace lesse kept the laws lesse used and malefactors lesse punished then they ought q West 1.3 E. 1. Then the great men would not be justified have and receive Justice in the Courts of Justice r Stat. Marl v. 1. Plenty dissolution and dispersion of Monasteries c. Informers concealers multitudes of Atturnies more then are limited by law are next made causes by him s 4 Inst 76 His reasons of decrease of suits follow and are these The Statutes of 35 Eliz 3. and 21 of king James c. 2. Have given full remedies concerning Monasteries the 21 of that king c. 4. concerning informations the 4 of Hen 4. c. 18. has made provisions concerning Attornies they are to be examined by the Justices their names to be put into the Roll the good vertuous and of good name to be received and sworn well and truly to serve in their offices and specially still as the Statute not to make suit in a forreign Country The others to be put out and if any be notoriously found in default of Record or otherwise he is to forswear the Court and never after to be received The Statute 21 of king James in the 3 chap. has provided against Monopolies and new projects in the 8. against abuses in procuring of Supersedeas of the peace and good behaviour the 23 chap. against vexations delays by removing Actions out of inferiour Courts The 16. chap. appoints a limitation of Actions gives them age and death it allows in the common Action of Trespasse Quare clausum fregit where it is by negligence or involuntary to plead tender of amends the 13 chap. prevents and reforms Jeofailes the 28 ch repeals many obsolete Statutes the third of King Charles more The Petition of Right being a confirmation after other Statutes of the same kinde provides for the rights and liberties of all men for the quiet of their estates and persons t 3 Car. enough to satisfie those who are not desperately resolved the more reason they see given to take off their dislike to dislike the more But it may be feared as it is more easie to hate then to shew a cause Non amo te volusi worse then beastly wilfullnesse sometimes must be allowed and the mean and contemptible malecontents are not more guilty of this immodesty then many of the better sort and who indeed may be learned in their own Studies or Professions and therefore will conceive themselves able to judge all others not considering how ridiculous it would be to heare an old Physician censure the order of the Imperial and Swedish battels a mâ—er plain Captaine the Aphorismes of Hyppocrates a Grammarian or Pedant condemned to noise by rule the Mesolabes of Arebimedes The most Reverend Judges of the Common Law have ever been the most carefull of all men where things were intermixed out of their learning of the Laws though not out of their knowledge sometimes to call into the decision the learned of those Arts or Sciences to which they belonged That every man is to be belieued in his own art is their maxime We pray in aide saies Justice Saunders when any thing falls out in our Law concerning other Sciences and faculties This is honourable saies he and commendable in our Law by this as he goes on it appeares we despise not I may say how ever able for some of this robe whom I could name many easily match those who by their own favourers are thought to have gone furthest in generall learning other sciences then our own but allow and commend them as things worthy of commendations u Plowd com 124. v. r. 7.19 Upon this reason was Huls a Batchelor of both the Lawes sent for by the Judges in the time of King Hen. 6. to heare his Legick as t is said upon the difference of precise and causative compulsion w 7 H. 6.11 Again where an appeale was pretended for which excommunication should not disable the Judges enquired of the learned in the Canon law concerning the vigour of the appeal x â—â— H. 6.25 They use to enquire of Surgeons concerning maihem y Com. 125. â—1 H. 7.33 as Gaws dries case They ever give faith and they ought to give faith to the sentence of the Ecclesiasticall Judges still there This is the common received opinion of our bookes z r. 5. 1. p. 7 and in another place Though it be against the reason of the common law a V. 4.29 Our predecessours as the Justices Brown and Stamford in things touching Grammer have used to consult with Grammarians and to pursue their rules b Plowd com 122 127. and the books there This love of our selves is the most dishonest of all others an Empire in sciences is not often heard of some studies may imploy a long age those who will be thought so sublime that they fill all places beyond the Sunne and Heavens way sometimes may be observed to fly weakly to flag an Eridanus or perhaps the earth receives them In Gellius Favorinus a Philosopher no overweener I think much esteemed by this relator high in name and opinion out of this curiosity quarrels with the Lawes of the twelve Tables with no great good luck as he was met with he shall be my example how easie it is for him who will be at all to miscarry somewhere He had read over he saies the twelve Tables which was something his exceptions may seem the more reasonable as eagerly as Platoes ten books of Lawes One would think he was pleased wel enough with Platoes laws which he read so very eagerly yet the Athenians and Polybius justly reprove them for vain lawes which no Nation of Greece could ever be perswaded to use c Athen. l. 12. c. 22. Polyb. l. 6. The Lawes of the Tables which dislike him were these This de injuria paenienda SI INJVRIAM FAXIT ALTERI VIGINTI QVINQVE ARIS POENAE SVNTO which at three farthings the assis it was no more he saies was triviall and would deter no man from doing injuries Some things in the Lawes he supposes inconsistent as in that of the Talio SI MEMBRVM RVPIT NI CVM EO PACIT TALIO ESTO The Talio or like for like was to be unlesse he that did the mischiefe satisfied him that suffered by him and redeemed it This Talio the Philosopher thought was impossible to be just the breaking by retaliation might be
that the frugal painful man should gain nothing by his honest industry nor the riotous disordered sot lose by his debosh dissolutenes c Republ. 939. Il n'y eut jamais de Republique ou ceste equalité de biens et d'honeurs fust gardee saies the French Bodin This equality could no where be kept with it there can be neither Magistrate nor Lawes As to the pretended fantastical communion of these Arreptitious ones so much admired by Poets lactantius will not allow it in the first ages He puts this construction upon those Poets who are so much for it Not that we imagine nothing then saith he to have been private but after the manner of Poets figured that we may understand men then to have been so free not to inclose their fruits that alone they might sit over things hidden but admit the poor to the communion of their own labour d De jnstit c. 5. Which the famous golden age should be when the earth and all things else for the use of man were as common as the light of the Sun Ceu Lumina solis aurae I cannot finde Adam as is observed was the universal Lord of things by donation from God not without a private dominion e Gen. 1.28 or propriety excluding his children without his Cession or assignment by which they had their Territories distinct in his life time in their own right f D. Seld. Ma. claus 13. which proves this home Abel who is a feeder of sheep had his Cattel and Pastures Hence is Cain called a tiller of the ground had his Corn and Corn-fields His place Nod where he built his City Enoch and seated himself That the earth was divided soon after the flood appears by these Texts The name of the one was Peleg for in his dayes was the earth divided These are the sons of Shem after their fathers after their tongues in their lands after their nations Again These are the families of the sons of Noah after their generations in their Nations and by these were the Nations divided in the earth after the flood g Gen 10.25.31 32. C ham had the south Sem the east as Josephus Eusebius The Chronicle of Alexandria c. Grotius speaks thus Things came into propriety not by the onely act of the minde for how could some know what others would have to be theirs and abstain from it and many might desire the same thing but by a certain pacte expressed as by division or tacite as by occupation for as soon as communion displeased nor was any division instituted it ought to be thought that all agreed that what any one occupied he should have it for his owne h De jure Belli c. l. 2. c. 2. sec 2. Now though humane will is made to bring in the dominion or propriety now in use which may fall short of the full title yet hee addes That introduced it is unlawfull for me to take that from thee against thy will which thou hast a propriety in Naturall law it selfe shewes that long or continuall occupation or possession and lawfull taking the profits is sufficient title i D. Seld. ma. claus 1. That tricke of the Spaniards to colour their invasions in America that the people there abused what they had and might be justly forced to quit it to those who could use things better was condemned more justly though not as theirs k Concil Trid. 402. more for the first occupant the ancient owner having perhaps not onely improved what he found not possessed by any other but by his labour made it delightfully habitable for man what reason is there a stranger of another clime who has consumed what hee had there should claime a share in the possession nay what adventurer who shall at his owne charges bring others with him as in the first rudeness of the world And since when the first homes were too much crowded the descendents of the Patriarkes and others as Captaines of Colonies fought out new places for themselves and those who ran their fortune I say what such adventurer has not good right to plant himselfe upon the best soile of his new discoveries and assigne his followers their proportions which no second commer ought to beat them out of Every man we know in the first ages made wells his owne by occupation l Gen. 21 It is plain this propriety was amongst the Jewes and allowed by them besides that command from God Thou shalt not steale Abraham their father tels the King of Sodome I have lifted up my hand to the Lord c. from a thread to a shooe latchet that I will not take any thing that is thine m Gen. 14. God by a Covenant gives Canaan to his seed n Gen. c. 15. The same Abraham purchases the Cave of Machpelab he gives all he has to Isaac o Gen. 23.25 Jacob buyes a parcell of a field where he had spred his tent at the hand of the children of Hamor Sichems father for one hundred pieces of money or Lambes o Cap. 33. Moses and Joshua divided the Holy land amongst the Israelites It is said And Moses gave inheritance unto the halfe Tribe of Manasseth and these are the Countries which Moses did distribute for inheritance p Iosh 13. But this distribution made not the Tribes inter-commoners the Families had their distinct inheritances Hebron as the Holy Booke became the inheritance of Caleb c. to this day q Iosh 14. This was the lot of the tribe of the children of Judah by their families r Cap. 15. Ruth gleanes in the fields of Boaz. Naboth had his vineyard the Shunamite is restored to her field again by King Jehoram The nations were for propriety Abimelech the King of Gerar is reproved by Abraham in these words Because of a well of water which his servants had violently taken away He answers I heard not of it but to day ſ Gen 21. Joseph as we read bought all the land of Egypt for Pharach onely the land of the Priests bought he not t Cap 47. Nor did our Saviour who was no judge as himselfe speakes of inheritances take away the law of propriety more then any civill law else but the law of Moses only and that partition wall which separated the Jews from other Nations u Eph. 2. That after of the possessors of lands who sold them and laid the prices at the Apostles feet and of Ananias who seld c. can make nothing against this being a voluntary act an huge triall of a rich converts piety still as Saint Peter to Ananias Whiles it remained was it not thine owne and after it was sold was it not in thine owne power This is more plain by our Saviour in three of the Evangelists where he tries the faith of a rich man sell all saies he which is liked well enough by them But then followes And give to
administrationis necessitatum publicarum tanto plus sibi arrogat in legibus interpretandis we may say abolendis The more unskilfull any man is of government and the publicke affairs the more will he arrogate to himselfe in interpreting or abolishing lawes The pride and selfe conceitednesse of an ignorant as it is commonly the greatest pride so it is the most dangerous whose suppositions at the most are the great arguments and whose imagination not demonstration if it must prevaile no foundation can be so fast but it must be shaken a weather beaten ship in a winter sea may be our emblem every day tossed and bruised betwixt shelfes and rocks without an anchor and where never any unhappy lost men could find a haven For the sacred Laws of the Land CHAP. I. Of Law what it is It 's Antiquity and necessity of Liberty LAw is defined by our Authors and others to be that which commands those things which are to be done Grot. de jubel Sir Hen. Finch 1. and forbids their contraries To be the rule of moral acts obliging to what is right An art of well ordering a civil society It is the conservation of justice which is A constant and perpetual will to give every man his own Bract. l. 1. c. 4. Just instit Therefore Cotta well denies Justice to be there where there is no right The precepts of Law are as Bracton to live honestly wrong no man De nat Deo 1. give every man his own These were the words of Justinian a Instit l 1. tit 1. long before The Law saies the Glosse intends onely this That humane society and that conjuncton without which men cannot live together may most commodiously be conserved This is its end These precepts or Laws commanding our Saviour comprehends in one rule Do as you would be done to Jus is à Jovis nomine Presidents have onely so much of Law as they have of Justice b Ch. Just Hub. 270. Those and Laws are built upon reason and Justice Law and Justice are insepable Force then which is said to be when any thing is done injustly with no right against the free will of another When a man requires his own prosecutes his right but not before the Judge is not Law c Bract. l. 4. c. 4. Force and Law are opposites d In Orot pro P. Sextio Horace notes the fiercenesse of Aebilles thus * See chap 2.137 here Iura negat sibi nata nihil non arrogat armis By these two contraries it is said is humane life a great way distinguished from the life of beasis e Cicero ubi supra l. 4. Arrians speaking of the Macedon kings say non vi sed lege regnum tenuerant The illustrious Viscount S. Albaâ— meant as much in his first Aphorism where he sayes in civil society either Law or force prevailes In his judgement meer force those are his words is the fountain of in justice f Augmtnt scient 690. This of the Barbarian That is most just in prosperous fortune which is most forcible is not so barbarous and abominable as another of a Pope g Bulla Clement 13. sentencing the Templars thus Although of right and Law we cannot yet according to the fulnesse of our power we condemn the said Order As one although you may with force rule your country and parents and reform things amisse yet is it unseasonable especially when all changes portend slaughter flight and what else is histile h Salust 48 In our Law Force is said to be as before when one demandeth that which he thinketh due to him not by a Judge sometimes armed sometimes not i Bract. l. 4. c. 4. We may read in our old Lawes In the times of the Danish kings right was buried in the realm such are the words the Lawes and customes slept together in their time wicked will force and violence rather reigned then judgement in the Land k Ll. Edv. conâ—â—ss c. 16 de invenriâ—â—e murdri I would not be understood to speak against publike force such as arms the lawful Magistrate to act legally in the execution of the Laws Thou shalt not kill and that other Text Whosoever shall shed the blood of man do not tye up the hand of Justice By several Statutes which it would be tedious to repeat I might shew what opinion our Lawmakers had of injust force which onely deserves the name of force The Statute forbidding Armour l. 7. E. 1. has these words and all other force against our peace Peace the contrary to force is the onely darling of the Law another Statute speaks thus No man shall come before the Iustices or other of the Kings Ministers doing their Office with force c. Except c. and upon a cry made for arms to keep the peace m 2 E. 3. Power ought to follow the Law not to go before it n 3 Inst 160. As Britton We will that all men rather use judgement then force o Britt 116 judgement and Peace go together Fleta upon that command of the Statute Westm the 1. That the peace of holy Church and of the Land be well kept goes on in the words of the Statute and it is a good consequence That so common justice or right may be done to every man p Fleta l. 1. c. 29. Britton unites Peace and Law in another place as fully Peace says be cannot well be without Law q fol. 1. And indeed where force gets the authority and reputation of a Law it is like the unnatural blaze of comets whatsoever the height be the effects are commonly fatal more feare then love is given it And as force cannot as little can the Arbitrary will of man be Law Laws cannot be just unlesse they be certain It is the best Law says the illustrious Viscount which leaves least to the arbitrarinesse of the Judge r Aphorism 8. We are Judges our selves of our own inconstancy how often we disagree with our selves what repugnancies there are daily within us how we are carryed away after any thing that is new and which we have not at all experienced not seldome without repentance enough commonly our wits being but afterwits every man is his own Phaeton his passions and affections never so disorderly oftner command then his reason so that sometimes he is rather a Geryon or Chymaera then one man The first act of our understanding which is a pure and simple apprehension may want reason it being not yet raised and the soule as it is clogged taking the beginning of it's understanding from the senses it takes such impressions as are offered to them and is not it self rushes furiously and rashly upon things ill represented and as ill understood without any reflexion upon Reason which we call Judgement or deliberation And not seldome where the will is thus impetuous force and violence are seconds to it This made Aristotle say That those
we cannot say of servants meaning servants by the Civil Law or Law of Nations after their conversion injoyned by St. Paul strictly to obey d Ephes 6. Coloss 3. Liberi free men are called so from Liberty as servants from servitude being opposites Liberty in the proper and strict sense being spoke of the one as servitude of the other though now improperly other kinds of things may and do come under those appellations Such liberty then as may be suffered by Laws and amongst men incorporated in a government is sufficient and whosoever will be displeased at it all that can be had Living under such a law as ours shall be shown to be where mens persons are free and their estates in which they have a propriety unless in such cases whereby their publique offences that freedom according to the plain words of known Law is justly forfeited as where the Jury in attaint are sentenced to lose their Frank Law e 46. E. 3.22 or in such cases where all the parts are to contribute to the good of the whole as either to the maintenance of a warre undertaken by the publike and supreme power or to the splendour of their home peace which as it must certainly be of value out of gratitude for the benefits injoyed under it all are bound to is Liberty as the Magna Charta f c 29. No Free-man so here is this liberty shall be taken or imprisoned or disseised of his freehold liberties or free Customes nor be outlawed banished nor in any manner destroyed c. but by lawful judgement of his Peers or by Law of the Land Which is not waging of Law as a most learned Author would have it g Tit. of Honour 1. edit 344. This chapter of the Magna Charta is partly repeated in a later Statute h 25. E. 3 4 v. 5 E. 3.9 21. E. 3.3 v. Vâ—â— Abb. S. Alb. 143 and there Law of the Land is expounded Indictment Processe by Writ Original and course of the Law another Statute recites it and instead of the words Law of the Land puts in Processe of the Law as equivalent and Synonyma signifying the same thing i 37. E. 3.18 and again a Statute of that King says No man shall answer without presentment before the Justices or matter of Record or by due Processe and Writ Original according to the old Law of the Land k 42. E. 3.3 So we see the free man hemmed in with all his liberties and free customes if he abuse them if he be found guilty of a publike crime or of any injustice or wrong done to his neighbour for which according to the Law of the Land and the judgement of his Peers or equals such liberty ought no longer to be his Sanctuary then as having forfeited his birthright of the Law he becomes a servant as the Statute may be taken imprisoned disseised of his free hold or liberties Outlawd or in any wised stroyed The same Magna Charta wils l c. 14. That no Freeman be amerced for a small offence but according to the manner of that offence c. The Statute of Merton provides m c. 10. That every Free man which is legally free who oweth suit to the County Tithing Hundred or Wapentake or to the Court of his Lord c. Here is the Free man again yet indebted he oweth suit and is chargeable with those duties the Law has obliged him to Legal liberty there may be there ought to be if these pretenders ever turmoiling and troubling others more peaceable and modest then themselves could overturn and alter government as often as the unquiet Florentines did theirs could make it their perpetual motion who changed ten time in a very few yeers n Mach. Hist 57.67 69.99 90.115.166.171.237 the proscriptions and slaughter of the best Citizens and the pangs and throwes of every change considered This liberty would not be worth the blood she must swim through to her throne and perhaps then there would be little liberty for any but those who conduct her thither liberty so this Historian upon the motions of his City is oppressed by the name of liberty Salust in his description of the Aborigines gives the best character of these lawless libertines in these words They were a kind of savage wilde men without Laws without command or government free and loose Such I take ours to be and such their liberty which may and will ever be pretended but without extirpation of all Religion humanity order and civil policy can never be had And if onely Cato's wise and just or honest man be at liberty and all wicked men slaves and villains o Plut. in Catone Vtic. I believe few of this Sect let them move every stone they can are likely to be free man is a labyrinth full of windings let the outside be never so specious and taking it may be a great distance from the heart there is no safety but in distrust we should suspect every thing which our own experience hath not assured us of most of all when Lawes which are the heart and vital parts in a Government are practised upon we idlely and fondly charge destiny and the period and ruine of things upon fatal families or boundary yeers when the truest cause of the calamity is our own unworthy lightnesse The reason why the Commonwealth of Sicyon survived the policie and Estates of all Greece besides is made this in seven hundred and forty yeers they never set forth new Edicts nor went beyond any of their Laws never exceeded them all things below are in continual motion have their infancy their manhoood and old age which is change and death their rise and fall yet as regular diet and temperance preserve the weakest most declining bodies so although considering the multitude of wicked men and what may hurt without no Government in judgement can subsist at all without the peculiar never failing assistance of the divine power yet may good Laws well obeyed prop up and keep off the fate of that which else would tumble presently And all things else would be more constant if man were so CHAP. II. Of the Law of England and what it is Its Antiquity not Norman King Edward the Confessor his Lawes brought down to Magna Charta and there setled The fundamentals are Saxon-English The English-Norman Laws since because of new offences of Tenures AS wisdome goes and must go it has ever been easier to gain the reputation of wisdom then of goodnesse The good man was he who loved his Country more then himself who obeyed and reverenced the Laws for Justice sake and if possibly would not have outlived them rather just then shiftingly politick The answer to the question Who was the good man used to be Qui leges juraque servat he that kept the Laws The Ancients of the greatest experience and learning peaceably ever observed the Laws of their several Countries neither were those
the nature and disposition of the people or whether they will breed any inconvenience or no but a custome never bindeth till it hath been tryed and approved time out of minde during which no inconuenience did arise for if it had been found inconvenient it had been used no longer but had been interrupted and so had lost the vertue of a Law This is declared to be so by the Lords and Commons in Parliament in the 25 yeare of King Henry the eight which I shall cite below and if the Judgements and Declarations of Parliaments be not regarded I know not what can give satisfaction * Vid. 3. c. Ancient liberties and customes which have been usitatae approbatae used and approved m c. 9. Stat. Mert. make the Common law The statute called dictum de Kenelworth speakes thus the party convict shall have judgement according to the custome of the land n 57 Hen. 3. c. 25. The 27 of King Edw. the first of Fines Contrary to the lawes of our Realme of ancient time used The 34 of the same King confirmes to all Clerks and Laymen their lawes liberties and free customes as largely and wholely as they have used to have the same at any time when they had them best o c. 4. law and custome of the Realme are made the same p 1. E. 2.34 E. 3. Abjuration is called custome of the Realme q 9. E. 2. c. 10. The 25 of King Edward the third saies According to be lawes of the land of old time used r C. 2. The title of the 27 of this King speaks in maintenance of the lawes and usages the Statute 36 of the same King Lawes Customes and Statutes Å¿ C. 15. Statute 42. according to the old law t C. 3. In the time of Richard the second Law and usage are the same u 1 R. 2. c. 2. It would be tedious to heap up more of this kinde I will only adde the declaration of the Houses of Parliament in the time of Henry the eight which is thus Their words being directed to that King This your Graces realme c. hath been and is free from subjection to any mans lawes but only to such as have been devised made and ordeined within this realme for the wealth of the same or to such other as by the sufferance of your Grace and your Progenitors the people of this your realme have taken at their free liberty by their owne consent to be used amongst them and have bound themselves by long use to the observance of the same c. as to the customed and ancient lawes of this realme originally established as laws of the same by the said sufferance consents and custome and none otherwise w 25. Hen. 8. c. 21. Now if what the people of England have taken up out of long use custome and consent be not good agreeable and convenient after so much and so long triall they would appear the most foolish of all people They would not deserve that free liberty which themselves by their repraesentors tell us at the submitting to and taking these lawes they had and if they be good agreeable and convenient they would appeare the most foolish of all people by their change No lawes ever were or can be made with more equity then these to which besides use and custom and experience free liberty and consent of those who were to observe them gave life There is custome of Courts which is law too part of the Common law x Plowd Com. 320. as the Statute of Kenelworth If any man shall take revenge because of the late stirres be shall be punished according to the custome of the Court c. y C. 26. Six times is the Common law called by Littleton common right It is sometimes called right sometimes justice z Mirc c. 2 Sec. 16. Fleta 6. c. 1. Mag. Ch. c. 29. Magna charta calls it justiciam vel rectum justice or right Westm 1. Common right and the King wills these are the words That the peace of holy Church and of the land bee well kept in all points and that common right be done to all as well to poore as rich c. later statutes have Justice and right a 1. R. 2. c. 2. full justice and right b 2. H. 4.1 good justice and even right c 7. H. 4. c. 1. Common droiture in a statute d West 1. c. 1. is rendred Justice according to the law and custome of England e 2 Just 161. called common right as the Lord Cooke Because the common law is the best and most common birth-right the Subject hath for the safegard and defence not only of goods lands and revenues but of his wife and children body life and fame also f 1 Just 142 2 Just 56. That which is called common right in the second of King Edward the third g C. 8. In the first of that King h C. 14. is called common law Not onely as Fortescue doe the lawes of England favour liberty i C. 42. But they are notioned by the word The word liberties in Magna Charta signifie the lawes k C. 1.29 and in that respect is the great charter called the charter of the liberties l 2 Just 47 The Statute de Tallagio non concedendo has these words That all the Clerkes and Laymen of our realme have all their lawes liberties and free customes c. m C. 4. In the 38 of Edward the third the Laws are called Franchises in the old Bookes the great Charter the fountain of all our * Just 81. Foundamentall Lawes is called the Charter of Franchises the common Liberty the Liberties of England n Bract. 291 414. Pleta l. 2. c. 48 Brit. 178 because so the Lord Cooke they make frecmen o 1 Jnst 1 The customes of England bring a freedome with them therefore in Magna Charta are they called Free Customes p 2 Just 47. Mag. Char. c. 29. the Courts of Justice are also called Liberties because in them as the same book the Law which maketh free-men is administred q Mich. 17. Epist 1. in com berot 221. 2. 2 Jnst 4. the Law then is Liberty it selfe Liberty and Law are convertible nor is this Liberty titular onely and a Liberty of words In the expressions of the Petition of right out of Magna Charta cited in the first Chapter and out of the 28 of Edward the third No free man shall be taken imprisoned or disseased c. but by lawfull judgement or by Law of the land and no man of what estate or condition soever shall be put out of his lands or tenements nor taken imprisoned nor dis-herited nor brought to death without being brought to answer by due process of Law which is as after in that Petition of right either Customes of England or Acts of Parliament r 3 Car. Reg
the givers name called the Lawes of Hael Dha Further King Edward the first who totally subdued Wales in the Statute called Statutum Walliae where he changes many of their old Lawes by his words there makes it cleare that the Lawes of England and of Wales could not be the same for so there had been no change The words are The Lawes and Customes of those parts hitherto used we have caused to be recited before us and the Barons of our Realme which having diligently heard and fully understood as it is fit were laws worse then those there should be full understanding ere a change certaine of them by the counsell of our Barons foresaid we have blotted out certain we have suffered and certaine corrected b Stat. Walliae or of Rutl. 22 E. 1. Perhaps it was not thought fit after a new Conquest to make a thorough alteration of things too suddenly yet was this a long Statute and much of the Law of England imposed upon them by it The 27. of King Henry the 8. swept all clean That commands that the Lawes Ordinances and Statutes of this Realme of England for ever and none othr Lawes O rdinances nor Statutes shall be had used practised and executed in the said Country and Dominion of Wales c. c 27 H. 8. c. 26. The Saxons as M. Daniel made such a subversion of State as is seldome seen the new retained nothing of the former which held no other memory but that of its dissolution scarce a City Dwelling River Hill or Mountain which changed not names The distance made by the rage of war was so wide between the conquering and the conquered people that nothing either of Laws Rites or Customes came to passe over unto us from the Britains nor had our Ancestors any thing from them but their Countrey d Hist 9. But the Author of the patches to the Lawes of St Edward though in Geoffrey of Monmouths strain goes full up to King Brute himself of Geofferies begetting speaking of the weekly Husting of London sayes he which was builded a long while agoe like and after the manner and in memory of old great Troy and to this day it containeth in it selfe the Lawes Rights Dignities Liberties and Royall Customes of old great Troy e Ll. S. Ed. c. 35. c. which like the Phoenix lives in its ashes and here such is the kindnesse of some of our quaint Authors has overcome Greece in the grave being more fruitfull in noble Colonies then her Enemy so that it must be a very faire discent where the pedigree is brought downe from old great Troy As of old the Greek Lawes so since the German Nations have overflowne Europe now are the German Institutions every where received and in force sayes Grotius f De jure belli c. 133. As the Lombards Burgundians Franks Swevians and Vandalls and other the brothers and kinsmen of the Saxons seated themselves in Italy France and Spain and spread their Lawes where they over-ran upon no other Title but that of the Sword so did the Jutes Angles and Saxons plant themselves and the customes of their first homes here first as friends and allies invited in by the British King Vortigen having lands dwelling places given them to fight for the Countrey they make a league with the Picts the publike enemies destroying those whom they were called in to protect in which manner they setled themselves leaving none of those amongst them but such as were content with slavery Their owne Countrey-man venerable Bede borne 227. yeares after their landing tells us comparing them to the Chaldeans whom I choose to refer him to who would know more g Bede hist l. 1. c. 15. p. 59. their Lawes and Language though themselves have suffered by their owne blood by their fellow Tribes the Danes and Normans some of those calamities which they made others feel where time and age and corruption gnawing to which all things are subject have not made a little change continue in the maine to this day These Nations so powred out of Germany retaining the rites and terms of their own Countries all of the same manners and tongue It commeth to passe as the most knowing h Gloss 435. Col. 1. knight that there is so much consonancy betwixt us and the Germans French Italians Spaniards and Sicilians both in the Canon of the ancient lawes and in the names of Magistrates Officers and Ministers of State therefore as he goes on Let them brag that will of the antiquity of their municipal lawes their beginnings can be had no where else Germany it is meant is the common mother The terms of art of some of these Nations got as far as Constantinople amongst the Greeks where we may finde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Captain from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a throng 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he that holds by knight service from buccella a morsel buccellarius is amongst the wise Goths of Spain thus used 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 homage 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is gelt rent tribute c. from the Saxon geld 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bill scedule c. and many more which Meursius in his Graeco barbara has collected the most ancient laws of al these people are the salic laws nay of all laws now compiled obtaining These and the Franks who made them were of Germany so named from the River Sala in Frankenland not from Franiker as Ortelius would have it They were made in the third yeer of Pharamond king of the Germane Franks 105 yeers before Justinian the Emperour who published the Imperial Laws The Author where he has no Latin puts in his Franko-Germanic of the Latin fashion As William of Oangis in the yeer 420 the Franks began to use Laws and did dictate their Laws by four Princes of their Nation sala signifies in the Dutch an Hall as with us or Palace whence are called law salic manners-salic vassals salic which belong to the sale Hall or Palace and as yet is to be seen the salic book Salbuch in the German libraries like our Doomesday or Liber Agrarius here says another who tells us there of the Salian Franks the Authors of this law named so from the former river seated on both sides of the Main upon which stands Francford the head of the Nation i Boioar. hist l. 4.313 of whom and this Law is said before what the best Authors write In the same Salic Law are many words used in ours as Campio Forresta Forrestarius Sparuarius Marcha Veragelt which is our were gild c. These Customes went with Pharamond eight yeers after into France then after those of the western Gothes in Spain the Burgundian Laws the lawes called Alemaaic Boian and Frank other then the Salic were instituted by Thierry the first son of â—lodove who first became Christian corrected by Clothaire and Childebert and perfected by Dagobert After follow the Lombards who as they were a
Colonie of the German Saxons so are their lawes full of their and our Customes agreeing together in many things yet k Dn. Spel. gloss 440. When Austin the Monk was sent hither by Gregory the great to convert the Saxons in the yeer 597. Not one hundred and fifty yeers after the entrance of the Saxons he was commanded by him to take interpreters with him out of France in his way l Bede l. 1.25 and it was unlikely while the Saxons yet kept the language of their Countrimen they should have forgot their Customes contrary to the manner of all the other Tribes of that Nation The first Saxon lawes writ by them after their Conquest are those of Ethelbert of Kent the first Christian and Monarch then which says Venerable Bede amongst the other good deeds he did his people set constitutions of right judgements according to the example of the Romans with the Counsel or advice of his wise men Mid srotera geþeat Which he commanded to be writ in English and which are held says he of his time long after Aetbelbert to this day m l. 2. c. 5. These were short and rude like the age Next are those of Ine the West-Saxon those of Offa the Mercian Kings of Alfred King of England founder so Ingulphus of the English policie and order ever since observed called by the book of Ramsie The renowned King Alfred founder of the English Laws Who is first said by Master Lombard and others of the greatest name to have divided this land into Shires Hundreds and Tithings c. to establish jurisdiction in every of them n Archaolog 15. again it is said he gave not onely lawes but Magistrates Shires Hundreds c. which so one place speaks we have often observed o Gloss tit Ll. Angl. Iugulph Though no man can honour the sacred memory of this most glorious Prince more then my self and I know viros magnos sequi est pena sapere yet I cannot believe this Malmesbury speaks onely of the Hundreds and Tythings the invention of which he attributes to this King p de Gest reg c. 4. He might which the Glossary is once contented with review the Lawes of Aethelbert Ina and Offa transcribe and insert whatsoever was worthy into his lawes and impose them upon the Angles the English generally as the Danes submitted to him in which name the Jutes and Saxons were included he might adde much and polish what he found being never idle ever imployed for the good of his people either in his Courts and Councels of State or in the head of his Army But he that looks upon the lawes of King Ine will find enough to assure him that King Alfred laid not the first stones of the Government which by whomsoever laid were laid before King Alfreds great Grandfather was born there being neer 200 yeers betwixt these two kings q Fasti Savil Not to recite the lawes upon offences we read in the lawes of King Ine of the Shire the Alderman and the Kings Alderman One law speaks thus If any man shall let a thief escape or hide the theft c. If he be an Alderman þolige hisscire he shall forfeit his Shire c r Ll. Ina c. 36. Another If any man shall demand Justice or right before the Shireman the Earle or other Judge Å¿ c. 8. v.c. 6.51 c. The Proaeme mid eallum minum ealder mannum and with all my Aldermen the chapter of breach of the peace In the Kings Town Aldermans Town Kings Thames Town c. t c. 46. Thorold a Benefactor to Crowland Abby long before King Alfred in two old Charters is called by King Kenulph Vice Comes Lincoln and by King Withlaf quondam Vic. Com. Lincoln sometimes Sheriffe of Lincoln u Concil Sax 3â—8 Ingulph 854.857 Venerable Bede who flourished in the time of King Ina tells us in the days of King Edwin King of the Northan hymbres Paulinus the first Archbishop of Yorke converted to the Faith Blecca with his family Line cole ere szre geÆ¿efan w Bede l. â— c. 16. l. 5. c. 4. p. 375. The Gerefe of Lincoln and elsewhere says he Hanwald the gesiþ a word rendred comes with his geref w th his Sheriffe Aethelwine betrayed King Oswine x l 3. c. 14. l. 4.22 l. 5. c. 4 5. Hundreds and Tythings are not named in the Lawes of the Kings Ina or Aelfred In King Ina's Laws pledges borgas are named by which probably we may think Tythings to have been then One Law wills if the geneat the husbandman as now we speak steal and run away that the Lord pay the angild the price c. if he have no pledges y Ll. Ina. c. 21. Ll Edg c. 6. Cnati 19.27.35 After the laws of King Aelfred those of Edward the Elder of Aethelstone Edmund Edgar Aetheldred and of Cnut the Dane succeeded all which were distinguished and ranked under three heads The first of the Weft-Saxons under whom as united and submitted were comprised the Saxons generally caled Æ¿estseaxna laga the West Saxon Law The second of the Mercians or Angles called Myrcna laga the Mercian law the best and most select of which King Aelfred as before took into his laws not rashly as he says in his Preface He durst not as his words are because he knew not what the next age would like set forth much of his own What he did still as he pleased his wife men w Praefat. in Ll. Alf. those of his Counsel The Ãeâ—elaga was the last of these called the Danes law of all which we may say as is observed out of Ovid. Facies non omnibus una Nec diversa tamen qualem dicet esse sororum Yet King Cnut as much resemblance as there was lik't it not out of all these laws he composed one Common Law which King Edward the Confessor observed z Malmesb de gest reg l. 2. c. 11 â— See here ch 3. His title says The laws of St. Edward begin quas in Anglia tenuit which he held Edward the third before the Conquest as one set forth one Common Law called the lawes of Edward to this day a Ranulph cester l. 1. c. 550. Hov. 600. Ll. Ed c. 35. in Hoved. which because they were just and honest as the Paraphraste upon the Laws of St. Edward he recalled from the deep abysse and delivered to be kept as his own As another he was the lawful restorer of the English laws b Gemetic l. 6. c 9. all this may be he restoâ—ed them and recalled them from the deep Abysse they might be forgotten dedicated as the Paraphrast speaks to oblivion wholly but not as he addes from the time of King Edgar in the reigns of Harold the first and Hardicnut Besides restoring and addition he commanded this law should be kept as his own and being a king of the Saxon blood and falling last upon the work it is
must needs then be The Hundred which was ten tythings a Germanie Institution q Gapit Car. Calui apud siluacum where every man was bound to attend in the North called Wapentake then the Trything Thryhing or Leet the Jurisdiction of which extended over the third part of a Province containing three or four Hundreds r Ll. Ed. c. 34. The County Court called gerefas gemot the Sheriffs gemot or Court to be held by the Institution of King Edward the elder every fourth weeke where the Sheriff was to decide civill and prediall causes and every sfraec as there plea was to have an end at the day Å¿ Ll. Ed. sen c. 11. The supreme Provinciall Court was the Sciregemot or Shire Court the same which now we call the Sheriffs turne kept twice the yeare where the Thanes or Noblesse were bound with the Freeholders to be present the Bishop was Judge for Church-matters and the Alderman of whom below for things secular here was the Assembly of all the Hundreds t Ll. Eadg c. 5. ll Aethelst m. s c. 20. Il. Cnuti c. 7 â— p. 2. here Causes Civill and Criminall were determined This Court and its Jurisdiction was very ancient being famous and used in the same manner amongst the Franks and Lombards as may be seen by their lawes u Ll. Car. Lud. Im. l 4. c. 26. Car. m. Lom l. 2. tit 52. Ll. Aleman tit 36. VVilliam the first divided the Jurisdiction and confined the Bishop with his Causes Ecclesiasticall to a Court by himself which were discussed in the Hundred and Court of the Shire before which appears by that sanction of this King directed to the Earls Sheriffs and all the French and English so it speakes who have lands in the Bishopricke of Remigius Bishop of Lincolne though there onely the Hundred bee named w Not in eadm 167. yet there is added The Episcopall lawes which were not well kept nor according to precepts of holy Canons c. and as this is recited elsewhere They shall bring nothing to the Hundreds or Judgement of secular men x M. S tab Rob. Winch. Arch. Cant. in eadm 168. and every secular Court is alike forbidden to Church-men by the Canons In one or other of these Courts in the lesse or greater all causes were to be determined at mens homes and at their owne doors if the parties would rest there no man ought to sue out of the County to draw his Plea from thence without good cause which might be pretended then and in every remove ought really to be now as appears by the Tolt Pone Accedas ad Guriam and Recordare This good cause was if the Suitor could not have Justice at home or what he had was rigour and summum jus then might appeales be to the Palace to the King there whose Court is called the High Court of Justice for law and equity y Ll. Aelfr c. 38. Ll. Edg. c. 2.11 Cnuti c. 16. after the manner of the ancient Jewish Commonwealth a course observed sayes the most knowing Knight all Europe ore z Gloss tit Cancellaria Our antient Kings as he swore before the Realm and the Priesthood right Judgement to doe in the Realme and Justice to keep by counsell of the Peers of the Realme a Ll. Edu Con. c. 16. viz. In this Court every City and Borough had their Courts the Burgmote kept thrice the yeere the Wardmote the Husting the most antient and supreme Court of the City of London is of Saxon extract which every Munday used to be held now on Tuesday yet does the stile still say held on Munday Lincolne Winchester Yorke and Shepey have their Hustings it held Pleas as it does of things reall and mixt Judges there were too in the manner we finde after the Normans who changed only their name from Aldermen to Justices There was the Alderman of all England Chief Justice as Ailwin Founder of the Church of Ramsey was called upon his Tomb The Kings Alderman as the most knowing Knight thinks b Gloss tit Aldermannus like the Missi c In Capit Gar. m. Franc. ll as our Justices in Eire or of Assize The Alderman of the County Iesse then the Earle but equall with the Bishop which three sate together in the County the Earle was to take care of the Commonwealth the Bishop of the Church the Alderman of the County to declare and expound the law c Gloss ibid. Besides as to execution of publike Justice upon the contumacious he might which our Posse of the County resembles use force raise the people This difference is plaine in that law of King Aethelstane Be Æ¿erum of the estimation of heads d P. 55. part 2 ll v. ll Jnae c. 8 Faedus Regum Aeâ—fr Gath. m. s in gless citant where the were gild or price of an Archbishop and an Earls life who are joyned as equall is fifteen thousand thâ—imsa of a Bishops and Aldermans who next follow and are joyned but eight thousand c. Sometimes the same things are said of both the Earle and Alderman so that they may easily be thought in those places the same This was a Salic Institution to substitute thus two or three under the Earle whom they called Sagibarons as Ingulphus who is altogether for King Aelfred King divided the Governours of Provinces who before were called Vicedomini into two offices into Judges whom now we cal Justices and into Sheriffs yet he has in our Charter Bingulph a Vicedominus which Title the Justices yet in Ingulphus retained and Alferi a Sheriff e In An. 948. The Saxons had their Hold or Heretoch their Military Commander in every County Places had their Bilaga by-lawes besides the Common Law Law made by consent of Neighbours now by the Homage in a Court Baron Suiters in the Leet or view of Frankpledge in towns by the Inhabitants and Neighbours as M. Lamhard The Saxons our Ancestors retained the manner of the old Germans their owne Elders who in Tacitus Jura per pagos vieâ—sque reddehant made distribution of Justice not onely in one Towne or in the Princes Palace but also at sundry other speciall places within the Countrey and as he truly the Normans who invaded the Posterity of the same Saxons here did not so much alter the substance as the name of the Saxons order f Archâ—ion 89. But to satisfie those to whom the Normans may be as odious as their Conquest although perhaps they may be Normans themselves most likely descended by some Mother from them and may seem as fond as if now at Millaine or Pavie after so many hundred yeares they would indeavour to distinguish the Lombard and Insubrian the Insubrian Gaule from the Italian in France the Gaule and German-Franke in Spaine the Carpetane and Wisigoth I say to satisfie them I will prove by the testimony of those who lived then when this Norman change is imagined
to be that there was no such overturning of things as is believed The Title of the Lawes called the Lawes of King William the first published by M. Selden with his learned Notes upon Eadmer and since with the Saxon Lawes is this These are the Lawes and Customes which William the King granted to the whole people of England after the Conquest of the Land these were those which the King Edward his Cousen beld before him In these Lawes recited by Hoveden in the life of King Henry the second ' King Edwards Lawes are confirmed in these words This we command That all men have and hold the Law of Edward the King in all things together with those Lawes which we have added for the profit of the English g Pars Poster 661. This Confirmation was not freely given but in this manner King William having heard the Lawes of the Danes and Normans and approved them as the Chronicle of Lichfield having approved the Lawes of those of Norfolke Suffolke Grantbridge and Deira c. he commanded they should be observed through the Kingdome as more just then any others because himselfe and his Barons were Norwegians by extraction not a word is there of any resolution to introduce his Norman Laws this the English thought a more killing blow then that of his Victory they beseech him and by the soule of King Edward c. to permit them to injoy their owne ancient Laws and Customes under which their Fathers lived themselves were borne and bred up to wit the Lawes of holy King Edward and they tell him it could not but be very hard to receive Lawes unknowne and to judge of those things they understood not h The Paraphrast of these Laws Chron. Lich. The King long resolute at last yeelds and as these with much authority were venerate and through the whole Realme corroborate and before other Lawes of the Realm the Lawes of King Edward not because he found them but because be restored them sayes Gemeticensis of the same age with King William i l c. 9. The Chronicle of Lichfield and Hoveden are more large with which agrees the first Chapter of the Lawes of good King Edward thus it speaks Which King William confirmed all of them use neer the same expressions By Precept of King William say they are elected out of every of the Counties of all England twelve of the most wise men who were injoyned before King William that in what they might neither declining to the right hand nor the left in a direct way they should lay open the Constitutions of their Laws and Customes nothing omitting nothing adding nothing out of prevarication changing k Hoved. 601 Chron. Lâ—ch ll Ed. c. â— Further yet in that Chronicle Aldred the Archbishop of Yorke not Thomas Archbishop of Canterbury as the Paraphrast would have it there being no Thomas of that See till lawlesse Beckets dayes who as this and Malmesbury crowned him l Malmsâ— l. 3. 〈◊〉 vita Pontific and Hugh Bishop of London by command of the king writ with their own hands what the foresaid jurates said from the laws of holy mother the Church beginning c. Ingulphus Secretary to William in Normandy and after made Abbot of Crowland by him is witnesse enough alone and as he I brought this time with me from London where he had been about the businesse of his house to my Monastery the laws of the most just king Edward which my Lord William the renowned king of England had proclaimed authentick and perpetual all England over to be kept under most grievous penalties commended to his Iustices in the same tongue they were set forth m Ingulph p. ult This proclamation was not all to allay the stormes which perhaps the violation of these laws had raised for the good of peace says an ancient Monk He swears upon all the reliques of the Church of S. Albane touching the hol Gospel Abot Fretherick ministring the Oath the good and approved ancient laws of the realm which the holy and pious Kings of England his ancestors and especially King Edward set forth inviolably to keep n Vita Ab. S. Aâ—b 8. s â—0 that the English laws were in use then I can prove out of that famous plea of Pinnendeâ—e betwixt Lanfranck Archbishop of Canterbury and Odo Bishop of Baieux and Earl of Kent there it is said the King comanded al the County without delay to sit all the French of the County especially the English in the antient laws customes skilled to assemble o Not. ad Eâ—d 198. William the 2. promises onely easie laws justice equity and mercy and laws desirable p Hunting l. 7.372 ead 13. Ma Par. 14 Heved in h. 1. which his successour Henry the first construes and there could be no other meaning to be meant of these laws he swears To take away all the injustices and oppressions of his brother promises the good and holy laws to keep and to strengthen the liberties and ancient customes which flourished in the realm in the time of S. Edward the King q Ead. 55. Malmsb. in Hen. 1.156 Ma. Pa. 55. and in his laws he says The law of King Edw. I grant you with those amendments made by my father with the counsel of his Barons r Ll. Hen 1. c. 2. Ma. Pa. 56. and in the same place those things which hence forward shall be done shall be amended secundum lagam according to the law of King Edward yet after he imposes a new law a medley out of the salick ripuarian and other forreign laws with some pieces out of King Cnuts Danish laws which were but a small time observed and could not take any thing from the lawes of King Edward king Stephen confirms the laws in these words all the liberties and good laws which Henry King of England my Vnkle granted them and I grant them all the good laws and good customes which they enjoyed in the reign of King Edward s Ex lib. autiqu Ll. The Londoners request of Maetildis the Empresse daughter of Hen. the 1. That they may be suffered to use the laws of Edward because as they they were the best and not the laws of her father Henry because they were grievous which she refused whence great commotions were made t Florent wig in an 11 42. cont which grievous laws certainly were that salic rapuarian Danish medly and likely enough a commotion in those boisterous times would follow the refusal many of the disquiets and tumults of those first reigns being raised upon the pretence of the breach of these laws a pretence so taking that the Noâ—mans themselves either coloured their insurrections with it or else preferred these before their own laws and ran the hazard of their lives fortune in earnest for them Henry the 2. commanded the laws of his Grandfather to be observed u Hov p. pricr in H. 2. of which below
Herefare with the English-Saxons Ofaide de chevels de chtvalry to Knight the eldest Son marry his Daughter their Pure aumosue is our Frankalmoigne Those of Spaine as the author of the estates of the world are Gothes and reteine their Customes though not their name since Roderic l D. T. V. Y. as Doctor Cowell a most learned Civilian if you look upon the Italians divided enough in their dominions upon the French Spaniards and Dutch our owne Countrey or the Scots you shall finde the Laws of feudes to be admitted m Jnst Ju. Angl. pref 14. Tenures are amongst the Persians n Jov. Hist l. 14. the Turkes the Russe and the Spaniards of Peru by the Ordinance of Charles the fifth the Emperour and King of Spaine o Bodin l. 6. c. 2. by all which it is clear that they were no invention of the Normans being if we father it upon the Lombard or Frank both which are the fathers of it in their Conquests and not the rather which we might upon the Teutons and Germans the common fathers of these knowne and in use long before the Normans are heard of whose appearance which showed them to the world was in inrodes and piracie wherin many yeares together from their first sally from Norwey and those parts places which is every where the fate of the most Northerne Provinces barbarous enough at this day to the dayes of Rollo more then two hundred yeares there was neither civility nor honesty in their actions so it is likely though somewhat they might bring with them they took up what they wanted in Manners and Government from the French with whom they have kept so great an agreement since for which and a Province unjustly wrung from that Nation they gave nothing in returne but depopulations and blood and had they introduced here the rites of Tenures they had introduced but what themselves tooke up either took up or brought with them is the same and what was common as has been observed amongst all the victorious Germane Nations The onely way to make it plaine in what manner by what right the Saxons possessed their Lands will be to search into those times into the Records of them The most knowing in these things deny not fees servitude of fees somewhere is denyed p Gloss verb. frud I will begin with the Alodium as likely to be freest which is said to be Foleland made the same with our Socage which yet originally was servile and more servile then any militarie Tenure will be found to be q V.C. Dom. Wat. Gloss in Par. D. Cowel vâ—r Socage Lit. S. 119. D. Lpel Dominici Colani The Aloaries are said to be the better sort of those who held by socage they are compared to the Frankleudes amongst the French of the Noblesse Nobiles militiam exarbitrio tractantes for service when the fit took them r Dâ—n Sptl. verbo Alod called out at no mans command in no foedall servitude yet who acknowledged a Lord sayes this place Out of that of the Doomsday Tit. Sudsex Comes de ow. Laneswice Godwin bolds of him and of him seven Aloaries who swore fealty and paid some Cens or small Rent This must seem a strange kinde of military Gentry owing little more then to God and the Sun amongst a people descended of those from whom Feudes are descended whose fortunes were built in the field and must ever have one hand upon the Sword The Franklends were not so free as it appears by this Glossary free they were from Tribute but not from the Wars Å¿ id verb. Leudes The word leudes has severall meanings Generally by it the leudes the Subjects of all sorts are intended according to that It was agreed betwixt Childebert and Gruntchranne that none of them inveagle away anothers leudes t Greg. Tur. l. 6. specially it is taken for the Vassalls praediall servile feudall and noble more restrainedly for the vassalls royall after called Barons which must be the Frankleudes I will relate and onely relate what I have found elsewhere amongst us of our Alodiary Doomesday is cited in these words And in Sussex Cetingley * Tit. of Honour Cheding for Chittingley a Towne in Pevensie Rape Almar held of Ring Edward as Alode sicut Alodium Upon which the Aloarie is said to possesse his Land by Clientelar right u D. Seld. in Ead. 202. v. ibid. 217. the Titles of Honour citing this and the place in Sussex before say Alodium was not Land whereof no Tenure was it might be such a Tenure as was free from any chargeable service and again as free as Kent is thought to bee the same Doomesday speaks thus These forfeitures has the King over all the Alodiaries of the County of Kent and their men vassalls And when thé Alodiary dies the King shall have reliefe therefore of his land except the land of holy Trinity c. and of their lands be has reliefe who have soc and sac Not to fall upon a discourse of the feudall Souldier who fights ever for his owne and the Mercenary though nature binds us to defend our Country I know not why any tye in a reasonable equality to our strength and means to knit this knot faster can bee called servitude and some more willingly obey a condition of their owne acceping then a command I will show below there were speciall obligations of this kind upon those who were certainly beneath the Alodiary The Saxons had their Mannors which they called Beries sometimes with lesser Mannors or Berewics as Hamlets of the greater holding of them which had many plough-lands many kinds of services many Free-men Soâ—mannes many of those who did the Lords worke about the house from * D. Spel. gloss bord the house in Saxon called bordarii or from bord which in Saxon is a Table a word uâ— sed for it still many villains belonging to them * v. Ps 68 I know not why these Borders should be thought Norman in their name against the Etymologie If that place in the Doomsday be considered Tit. Norf. Nereburgh a Towne now Nerborough held Aelwie in the time of King Edward the Gonfessor now R. c. Then foure and twenty villeines c. Then and after ten bordarii borders c. Tit. Hereford And other twelve borders working one day in the weeke The Demeanes were called the Inland the Tenancy and what was allowed the Colony or Husbandmen the Vtland according to the testament of Bithric u D. Lamb. Itin. Gant I bequeath sayes he to Walfege that Inland as M. Lambard the demeanes and to Elfey the outland as he the Tenancy The Ecclesiasticall Lawes of King Edgar command Tythes to be paid both out of the Thenes Inland and the Neatland the Tenants land e Ll. Eâ—g Eccles Concil 444. Thus must Ingulphus be intended in the deeds of Withlaf and Beored Mercian Kings twice are these words Also I confirme to the fore-said Monastery of the gift
of Geolph sonne of Malt in Halington four Oxganges of land of Jnland which the Margent once corrects by Luland for Juland both which make it non-sense there is added and ten Oxganges in service The words Mannor Mansions Teuements Marshes common of Pasture of all Beasts are frequently met with in the antient Grants made by the Mercian and West Saxon Kings to the Monastery of Crowland f Inulphus Savil 859 864 881. with the termes acres hides Carues Oxeganges Yardlands Firmes Rents c. many of those Mannours had their Royalties or huge Priviledges as Ingulphus calls them annexed both of Jurisdiction in some parts lessened since and profit King Edgars Chatter this Monastery describes and grants them I grant and confirme sayes he c. free from all secular charge and that they have all the free Customes with all that which is called Soc Sac Tol and Team Infangthef Weife and Streye g Id. 881. amongst which Sac in the Halmot since Court Baron was common to all Mannors In the great Plea of Pennedene of which before the Archbishop is said to darrein all the Liberties and Customes of his Church Soca Saca Tol Team Flymena Fyrmthe for Flymen firm Grithbrice Forsteal Haunfare for Heinfare and Infangennetheof h Not. in Ead. 196. most of which are now worne out unknowne in these base Courts yet I will say something of them not that I pretend to give full satisfaction being in some of them unsatisfied my selfe as they are upon whom I relye for Soca D. Cowell cites S. Edwards Lawes i c. 23. He sayes some will have it an Inquest as if it were seek some Suit of Court others an exemption of the Tenents from any publike duties without the Mannor or Liberty called still soke soon socne is in Saxon liberty * Ll. Cnuti c. 69 4. free Jurisdiction frithsocne is a sanctuary a liberty of peace k Ll. Eccles r. Cnuti c. 2 In the lives of the Abbots of S. Alhanes we read with all the lands which William Chamberlaine or the Chamberlain held in the Soke of Luiton l 69. it is the Liberty or Jurisdiction of the Lordship within which the Lord may hold his Court to which the Tenants ought to resort to doe their Suit and out of which they are not to be drawne Sac is conusance of Pleas Tol is said to be a liberty to buy and sell within the Mannour m Ll. Edu c. 24. more likely some duty paid to the Lord upon such sales Team in other Saxon out of the Lawes is progenie by some made a power to have and and dispose of villains and their race it is so I gather from the Saxon laws cognizance in a Court-Baron of things claimed stollen where he in whose hands the goods were found might vouch his Vendor and he over till the Thiefe was discovered if hee were teames ƿyrþe as King Cnuts Lawes speak if he deserved the right as having bought before legall witnesses otherwise not and he was to pay the penalty imposed at the third Voucher the Owner is to have his goods the team was to be in the place where the goods were found no man was bound fylgean team to follow it I know not whether timþ is used in the Laws of Ine for vouch getiman in those of Aelfred for the Voucher as geteaman in those of King Edward the elder and King Aetheldred timan and teaman to vouch team for vouching tymoe he hath vouched in Aethelstanes Lawes tyman team in those of Aetheldred team teames tyme in Cnuts in the same sense n Ll Ina l. 74. Alfr. 4. Edv. sen 2. Aethelft 24 Aetheld 9 10. Cnuti 21 22. Edv 3.25 the other terms may be rendred by Mulct of sustaining Fugitives or Out-lawes of breach of the peace forestalling departing of a Servant Tryall of a Thiefe taken within the Jurisdiction There were Parks in the Saxon times which though it be a digression I thought fit to observe this appears by the word Deorfald Deerfold and by the Doomesday where they are are called Parcisylvatici bestiarum Wood Parks of Beasts Forrests too here are as antient called Bucholt and Buchurst is the same holt and hurst both signifying a Wood. King Cnut in his Lawes o c. 77. v. manne Ferest D Sp. gloss verb. Forresta gives any man leave to hunt in his owne Woods or Fields forbidding onely to meddle with the Kings Venison in the places of freedom other Forrest lawes were after set forth by the same Cnut one of which in the thirty chap. gives leave to hunt but not so generaly it names not woods If the Saxon original were as narrow which no man now knowes yet I see not why these laws should be suspected for it as they are p 4. Inst where this chapter is thought to be a prohibition to hunt which it is not It agrees with the law before men were to avoid the kings game not wheresoever according to the word but wheresoever he will have it according to the other law gefƿiþod priviledged free What the Thane was and how he held his Lands and Lordships I will next enquire The word Thane Thegen thein thegne we finde theowan too and all these ways it is written is used sometimes indifferently in some places meerly for the kings servants meerly for a servant as in Doomesday Cola the bunter Vluiet the hunter Godwin the Falconer c. and in a Saxon Sermon q In Beda 〈…〉 382 The Queen of Seba tells Soloman blessed are thy servants theguas and theowan the Apostles are called thenes r Bede 483. yet in other places it may be observed directly and properly restrained to intended of a Thane holding Taine Land though he might in some honourable way or other serve the king too Such might he be in Bede whom as the fable speaks no bonds could hold when his brother was at Masse praying for his soule as supposing him slain in the battel with Elwin king Egfreds brother who feared to confesse that he was the kings Thegne but said he was a folelic man and again those that were with him saw by his face and carriage that he was not one of the poor folk but that he was of noble race ſ Bede l. 4. c. 22. and being questioned answered he was the Kings Thegne There is the Kings Thane the ðeoden mean or under Thane The first the Kings Baron the other the Lord of a Mannor t v. ll reg Cnuti c. 69. as a most learned Antiquary Neither were there with them the Saxons any other created titles after the Prince or Etheling honorary it seems but this of Earle and their Thanes according to the Charter of the Confessor for the Lands of St. Pauls Church there which runs thus Edward king Gret mine Bisceops and mine Forles and alle mine Thegnes ou Thau shiren wher mine Prestes in Paulus Minister habband Land u D. Seld. tit Hon. He acknowledges there were
and Leases often profectio militaris and expeditio are the same which amongst the Saxons is called here fare amongst the Germans Hereban with us and the French escuage at least that which is certaine b Glos verbo Heribannm The Charter of Bertulph King of the Mercians Anno 851. to the Monastery of Crowland grants All those abovesaid Churches Chappell 's Lands Tenements Pastures Fishings Mannors Mansions Milles Marshes free and discharged from all secular service and earthly charge c. and I free from all duty of the King and of every other Lord and man of what dignity excellency and honour soever c Concil 346. Jngulph Hist 861. King Athelwulf the West Saxon and Monarch in his grant of the tenth Mansion and of the tenth of all goods to the Church differs little from these Hee will have that tenth part to be free as the severall Copies have it and as we find it hitherto to have been from all socular servitudes and from all royal tributes the greater and the lesser or from the taxes as in Ingulphus which we call winterden as Malmesbury Witerden as Math of Westminster Witeredden who agrees with the others in this part onely he has secular services for servitude all of them make the Charter conclude contrary to the Charter of Eadbald before and let it be free c. to serve God onely without expedition repaire of Bridges and Castles which by the old law or old policy rather of the English Saxons it is said the Kings could not discharge This is therefore called the writing of the Liberty of the Churches of England This Charter worthy of everlasting memory was granted in a Generall Councell at Winchester such one as is called Pan Anglicum where were present three Kings Athelwulf the Monarch the West Saxon Beared the Mercian after driven out by the Danes and Edmund the Eastangle the Martyr slaine by those Danes Hence the most worthy Knight thinkes the rectory and the glebe to have had their beginning though faire additions from the munificence of pious patrons have been made to it since d concil 349. 352. In optona grena Vpton grene as Ingulphus St Gutlac the tutelar speciall Saint of Crowland had and bath Woods and Marshes c. in the time of King Edward free and quit from all services e Hist 909 from the time of King Etheldred was the Seat of our Abby sayes he quit and discharged from all secular services and our Abby was quit and free from all secular services in the time of that King who was the lawfull Successour of the royall blood of the English and father of the most pious King Edward f p. 911. s 30 40.50 And againe a great part of the Marshes and Meadowes of the Seat of our Monastery saies he I demised for a certain yearely rent and other services to be done g 912. The Folcland of the basest tenure amongst the Saxons as M. Lombard which passed without writing was that which now we call Copy-hold at the will of the Lord h Glos terra exscripta whose condition as also that of those who held by socage was far more servile before the Norman entrance then in some times since before the services of all these consisted in fcasance in doing after in render by payment c. as the most reverend Judge Littleton of those who hold by socage Afterward these services were changed into money by consent of the Tenants and desire of the Lord viz. into an annuall rent c. yet the name c. remaineth and in divers places the Tenants yet doe such services with their Ploughes to their Lords i L. 2 s 119. Bracton calles the Copy-holder villein sockman or sockman of base tenure k L. 2. c. 8. others tenant in villeinage servitude indeed or villeinage since Richard the seconds time is by degrees rather worne out then abolished by any law nothing now is left but the name the last man which I have knowne claimed for a villein being Crouch of Sommerset-shire in Queene Elizabeths time l Dy. 266. 283. This too is Saxon English and preceded the Normans but was never favoured by the Law m Dy. 267. lit s 193. Forost c. 42. The Saxon lawes call the villain ðeoƿ mon or man ðeoƿ and ðeoƿe indifferently a servant man or servant not that freemen were not servants too as since they are both which are visible in that Law of King Ina If a Servant man worke on Sunday by his Lords command be he free and the Lord shall pay thirty shillings for a penalty if he worke without his Lords knowledge he shall lose his hide be whipped or his hide gild the price of it but if a Freeman worke that day without his Lords command he shall lose his freedome or sixty shillings n Ll. Ina c. 3.23.46.73.50 Ll. Aelfr c. 5. In that extract of the Lands of the Monastery of Crowland taken out of the Dooms-day Book by Ingulphus the Abbot we finde in Langtoft S. Guthlac bas c. viz. five Carues eight Villains * Barders sup 81. four Bord. and twenty having soc socham habentes 5 Carucatas it should be twenty socm habentes 5 Carucatas and in Bston c. There in Dominio one Carue five villains two Bord. and seven soem with two Carues in Soudnave slound two servants six villaines three Bord. with one Sochman having three Carues c. with much more of the same o Ingulthus Savil. 908. In the yeare 1051. Thorold of Buckenbale Sheriffe of Lincolnshire likely of the the blood a descendent of the former Thorold who had Lands in Buckenhale grants the Mannor of Spalding to Wulgate Abbot of Crowland in these words I have given c. to God and St. Guthlac of Crowland c. all my Manor scituate neer the Parochial Church of the same Town with all the lands and tenements rents and services c. which I had in the same Manor c. with all the appendants viz. Colgrin my Reeve and his whole scquele with all the goods and chattels which he hath in the same town fields and marches c. also Harding the Smith and his whole sequell with all the goods and chattels which he hath in the same town c. also Leftan the carpenter and his whole sequell with all the goods and chattels c. also Ringulph the * Ringulphum primum first and his whole sequell with the goods and chattels c also Elstan the Fisher and his whole sequell with the goods and chattels c. Also Gunter Liniet c. Outy Grimkelson c. Turstan Dubbe c. Algar the black c. Edric the son of Siward c. Osmund the miller c. Besy Tuke c. Elmer of Pincebeck c. also Gouse Gamelson c. With the same clauses to them as before The conclusion is these my servants servos and their goods and chattels with all
my Cottages c. together with my Piscaries as well in the marches adjâ—cent as in the sea coming up to the same Town c p Ingulph 913 914. Plain denotations of the Villein regardant this was done in the tenth yeer of Edward the Confessor fifteen yeers before the Conquest and unlikely those rents services and the villeinage of these men should begin the day before the grant This Ingulphus himselfe makes plain It is sayes he to be declared that in the seat of Crowland villeins borders nor Sochmans are not received unlesse out of fear of war over our heads q p. 911. I should think this Sochman very base neither of much esteeme nor freedome where he is so ranked and keeps such company as in these places Nor here was our law more inhumane then those of all other Christian Nations The Civil law suffered this slavery till Justinian by a general Edict restored al men to their freedome it was frequent in Germany till the reign of Lodowick the second The villains there were affranchised with reservation of day works and Escheates which hold yet in the low Countries and in France c. saies Bodin r Republ. luire 1. In Poland the Villein is yet in being he is called there Kmetos and may be killed by his Lord. Lewis Hutin freed many of these from their servile condition in France Humbert those of Dauphine Thibalt of Blois those of his Countrey Charles the seventh of France others Henry the second the Bourbonnois Emanuel Philibert of Savoie did the same in his Countries The Lord of la Roche Blanch in Guascgogne Å¿ An. 1558. in Boains time pretended not only a right of succession to the goods of his Subjects so the Peasant or Vassall under the jurisdiction of any Lord is called called by the French main-morte but also that they were bound to plant his Vines till his Fields mow his Meadowes reape and thresh his Corne build his House to pay his ransome and the taille in the four cases anantiently accustomed viz. for Knighting the Kings eldest Sonne marriage of his Daughters voyage over Sea and Captivity and if they stragled out of his Lands without his leave to bring them backlike Beasts with halters about their necks which last part was cut off by arrest of the Parliament of Tholouse By all this it is manifest in these things there is nothing singular nothing without example the greatest could be given and let the Normans and their entrance be as injust as is imaginable never to be forgiven such as no satisfaction can expiate These are no crimes of that Conquest and ought not to be involved in the name CHAP. III. Of the Courts of Justice of Suites of Counsellours of the Judges of Writs Pleadings the Termes of Art Hotomans censure of Littleton the common Lawes may easily be digested into method their principles and excellency in severall respects mercy c. confirmed by Parliaments and testimony of others not of the profession the professours honourable NO Nation can compare with us in the Justice and Majesty of our Courts Courts where so generall is their extent and power to redresse wrongs every man let the injury be what it could and done by whatsoever great injust man might be righted nor are there any Supernumeraries amongst them Courts of no use but to vex and intangle The first judges posito modo praetor aratro are said to give Lawes to administer Justice to the people while the Plough rested but upon the same reasons which make Lawes at first as is said plaine and simple multiply Courts must needs grow more numerous In the Saxons times besides the lesser Courts before discoursed of to relieve men at their owne doores There was but one high Court of Justice ever moving with the Prince which judged as Mr Lambard out of those Lawes of appeales forbidden where Justice might be had at home not only according to Right and Law Sup. 59. but also after equity and good conscience the words of the Lawes are unlesse he cannot find right at home or right be too heavie t Ll. Edg. c. Ll. cnum 16. in this Order faies the same Mr. Lambard and in these two sorts of Courts was all Justice administred till William the Conquerer w Arch. 20. and after him this Court continued under the chiefe Justice of England ordinarily which great Officer the first man next the King alone had the power of the Chief Justice of the Pleas of the Crown of the Chiefe Justice of the Common Pleas till the nineth of King Henry the third according to that of Magna Charta the Common Pleas shall no longer follow the Kings Court though this Charter was before granted by King John in the 17. of his reigne it should seem by the charge against that much wronged gallant man Hubert de Burgo chiefe Justice in King Iohns time and in the time of Henry the third after the death of William Earle of Pembroke chiefe Justice 4 H. 3. that this huge office was not shrunk that the chiefe Justice was then whole and intire x Ma. Pa. addiâ— 149. besides the pleas of the Crown and common pleas he had the power of the chiefe Baron of the Exchequer and of the master of the wards y Addit ubi sup and sometimes commands armies z Ma. Pa. 193. an imployment too much for one man and businesse too much for one Court Upon which reasons distribution of the jurisdiction was necessary which flowing after from one Fountain by many streams into several Courts is no small ease to the people and this additional alteration is the greatest improvement imaginable Hence are derived the Benches the Chancery and Exchequer of the excellency of which and other high Courss pipes communicating justice with more speed and facility over England I wil say something but briefly my ayme being to make a tryall whether those who are not to be moved else by any other way will trust and yield to their own eyes before which I would lay things as plainly and as openly as I can and shew them that if justice onely be desired the pursuit of which lawfully and civilly is faire and honest here it is to be had it can never be deficient if the execution of things be answerable to their institution Here it is commanded That justice be administred as well to the poor as to the rich without any respect to be had of persons a West 1. c. 1. Here is said It is provided agreed and granted that all men as well high as low shall have and receive justice b Stat. Marlb c. 1. The times had been unruly before and many of the great men saies the Statute would not submit to the justice of these Courts they would be judges in their own cases distrain men grievously and take such revenges as they thought fit c Stat. Marlb ibid. Here as another Statute The Justices
a far off seen A strong vein of reason runnes every where in the Law but so sweetened with equity and clemency it may well be thought made in a paternal government given by a common father of a family to his children By Judah or Joseph to their Tribes ruling but without a sting Justice must as is said pare off unsound parts such as else would corrupt and destroy the whole body no government can subsist without it Quae fecit si quisque ferat jus fiâ—t aequum There is no greater equity then this that we should be done to as we doe But how unwillingly the Law descends to these last remedies may be seen by the many favours before recited allowed to the most heynous offendours whom yet it does not pity but the frailty of man in them Onely is the innocent and honest man beloved and safe as he onely ought to be in the law He who shall transgresse the Lawes which is not a single impiety such one as much as lies in him frames a new Commonwealth to himselfe and new lawes as if he had power to free himselfe from those bonds which nature and civil subjection have tied him in who casts off all obedience to peace and justice who maliciously violates the sacred inhibitions of restraint wickedly breakes through all those barres which no law can prevent religion and conscience must give the check if he fall or break his neck by the way the Lawes are not to be complained of the calamity of his ruin is meerly to be imputed to himselfe though sometimes the punishment may be thought severe it is never new nor inhumane never so great as the offence One of our terrible judgements so it is called is the judgement in an indictment of conspiracy the same which was in case of attaint against a Jury by which the bodies of the offenders were to be imprisoned in the common Gaole Their wives and children to be turned out of their houses those with their lands to be seized into the Kings hands to be wasted and their trees extirpated all their goods and chattels to be forfeited the Conspirators for ever to lose the benefit of the Law this was called villainous judgement As the Lord Coke inflicted by the Common law for that the offenders by salse conspiracy under the pretext of Law by indictment of treason or felony and legal proceeding thereupon sought to doe the greatest injustice by false conspiracy to shed his bloud who afterwards is lawfully acquitted z 3 Inst 222 Subtilty which wrests a manifest text of the Law is condemned as unrighteous a Hub. 125. So is cunning and malicious interpretation of the Law there He who wrests a text of the Law though to maintain truth does against distributive justice saies the Lord Coke b r. 10. praef v. leg non dubiuÌ„ One reason of the severity of this judgement may be given in the words of the Statute of the banishment of the Spencers The Law which was instituted for the maintenance of peace and of good men and the punishment of the evil is turned by such courses to the disheritance of the great men and destruction of the people c 15. E. 2. 3 â—nst 222. If the party acquitted that we may see how many severall waies the law provides for the innocent man bring his action against the Conspirators as he may he shall recover answerable damages all practises to subvert justice truth and innocency are punished by the law he that wil professe himselfe the advocate of wickednesse and injustice and declaime against the Law for suppressing them deserves to fall into the danger of what he too unjustly loves Perjury of witnesses and subornation were ever odious in the law The murderer perjured man and adulterer in an old law goe together d Ll. Cnuti c. 6. perjury was punished by the realsfang or pillory the punishment of perjury was too to quit the Countrey after forfeiture of moveables e Fleta l. 2. c. 1. then fine and ransome f Brit. 38. Now forfeiture of a certain sum and imprisonment g 5 El. c. 9. Bribery was ever abominable the judgement against Sir William Thorpe a bribing Judge was as in felony In Fleta the punishment of a corrupt Judge was to be excluded the Kings Councel for ever to lose his lands rents goods and their profits for a yeer after to be punished by discretion c. It came to fine and ransome No great Officer Justice nor publike minister by a Statute shall take any gift or brocage of any person who hath to doe before him 11 H. 4. under the penalty to forfeit the treble lose his place to satisfie the party c. to offer a bribe was an offence punishable by the Common law Extortion is another great misprision punishable by fine and imprisonment h Trin. 6. Car. reg in Camara flell It would take up too much time to run over the names of all offences and their punishments But some are full of Sir Thomas Moores kindnesse and think it too much that a man should lose his life for crimes under murder as for theft c. for which antiently losse of a hand or leg or banishment were in use i V. Concil Berghamsted Concil 197. Ll. Cnuti c. 61 Ll Ina c. 3â— AEthelst c. 1. yet the party taken in the manner hand habend might be killed amongst the Saxons he could not buy his crime out and the Spanish condemning to Gallies is thought by some the onely course Mr. Daniel will have it that as yet writing of Henry the seconds time they came not so far as blood which is not so King Henry the first abrogating the weregilde by which a man might have bought out his offence made a law sayes Haveden ut siquis in furto vol latrocinio deprehensus fuisset suspenderetur to hang the thief k Hoved. Sav 47 1. in H. 1. with whom Wigornien sis and Rad. Niger agree after in the latter end of the reigne of king Henry the third we finde a thiefe who had stoln 12 oxen beheaded l Ma. Par. continat 1005. Capital punishments have not onely been in use against homicides but other transgressours too and amongst those who worshipped God rightly We meet with no divine precept before Judah which makes whoredome worthy of death yet when he is told Tamar thy daughter in law bath played the harlot He answers bring her forth and let her be burnt We may proceed sayes Grotius by conjecture of the divine Will with the help of natural reason from like to like and that which is a law against homicides may be extended to others as dangerously mischievous m in bâ—l 14. I will not dispute it whether there be more mercy in death * v eadm 94 cutting off legs c. or in the Gallies I believe the boldnesse and number of such malefactors begot the law of death and those
whom death with so much infamy so often really before their eyes cannot fright will never think any torment whatsoever where life is left them though with more misery then can be spoken terrible But it is thought horrible and grievous that a mans life which is invaluable in the law should be taken away for a thing of nothing for 12 pence Which says the most learned Knight is the antient law of the English Nay for lesse by the antient law of the English I may say so King Aethelstanes lawes begin with thieves and speak thus First that man spare no thiefe so I render it according to the words who in the manner having in his hand taken is above twelve yeers old c above eight ponce n c.r. either eight pence or twelve pence The law is full of equity this king gives a ram c. in the Preface as the Saxon worth four pence that which as Sir Henry Spelman sold heretofore for twelve pence would now be worth 20 or 40 s. in the Assise of bread long after the Saxons in the 51 of Hen. 3. eight bushels of wheat are valued but at twelve pence and although now the 12 keepes not the old rate but the modern yet things are prized in trials of life far below their worth and no man loses his life but where the thing stoln in estimate rises to more then many twelve pences That title of Cosroes amongst his others a king who hateth war may justly be given to our laws Peace the greatest blessing of this life and without which nothing else can be a blessing is everywhere provided for everywhere charged and commanded Peace is commanded to be kept in the Pallace or Hall of the king the forfeiture of the breach being the losse of all the offendor has and his life at discretion in the church the house field and town the mulct of wrangling was made 30.8 o Ll. Ina. c. 6. Ll. Alfr. c. 7. Ll Edv. sen c. 4. Ll. Etheldr c. 6 Every man was to give pledges heretofore of his good behaviour the violation of Faith so given was punished and is called breach of the peace Every breach of the peace was such violation Everymans house as the law since expresses it is to be his Castle He who infringed the freedome or liberty of the house called râ—m soone by house breaking forfeited all he had and his life was to be at the kings wil p Ll. Edm. c. 6. Grith or frithbrice were the terms for breach of the peace King Cnut in his laws first wills that Gods peace and the peace of the Church be kept then his own q Ll. Cnuti c. 12.14 and again We must provide for peace or the amendment of it most desired by dwellers and most odious to thieves r c. 8. Amongst the Prerogatives of the West Saxon kings are these breach of peace house freedom Å¿ c. 12.14 The Statute called Westm the first speaks Let the peace of the Land be maintained in all points The first of R. 2. Let the peace be well and surely kept c. according to the Law of the Land In the title of the Statutes of the 50 of Ed. 3. are these words To the honour of God and of holy Church and quietnesse of the people Which used to be the title of Parliaments t â— Inst 9. The Statute of Hen. the 7. concerning Justices of peace has That the subjecti may live in surety uner his peace in their bodies and goods Inprimis interest reipub ut pax observetaer is a mixime of the Common Law affirmed by Parliament u 2. Inst 158. In all Actions for any thing done against a Statute law where the words vi armis are left out yet the Writ has contra pacem against the peace w r. 9.50 Every affraying as Mr. Lambard or putting in fear is breach of the peace The laws do not onely make orders for the maintenance of the peace but as to the execution of the charge have appointed general and particular Officers and Ministers to manage this part and to undergo this care The Lord Chancellour Lord High Steward of England Lord Marshal c. Justices of the kings Bench says Mr. Lambard had authority inclosed in their Offices for the conservation of the peace all England over The Justices of the Common pleas are said to be conservators onely in special places The Master of the Rolles was a general conservator by prescription Coroners and Sheriffs are to be conservators within their Counties Justices of the peace instead of the ancient conservators antiquated are especially warders of the peace so are Tithing men Borougheads Constables and petty Constables in their limits As the first of Ed. 3. x 1. E. 3. c. 15.4 E. 3. c. 2. In every County good men and lawful that been no maintainers of evil nor barretours in the Country shall be assigned to be Justices of the peace As the 18 of that king Two or three of the most substantial men with other learned in the Law as the 34. A Lord with three or feur of the most substantial c. By a Statute of King Henry the 6. The Justice must have Lands and Tenements to the value of xx l. by the yeer he is to be sworn duly and without favour to keep 13. R. 2. c. 7 and put in execution all the Statutes and Ordinances touching his Office As by the Iaws of all Nations civil Religion and the Priesthood have their priviledges and honour so no laws ever favoured piety and the Church more then these and this fully and so often that if it be made by any an objection of prejudice it cannot be denied it must be confessed by all hands Those of the Roman new creed have in every age very clamorously and furiously slandered our Laws not onely as short and imperfect but as unjust to be detested by all the faithfull y Becket in Ma. Par. 101. Such as without a saving the honour of God and of holy Church z Hoved. Savil. 492. are not to be sworn to against the faith as the Bishop of Rochester may be thought to mean a Graft 1187. The exemption of the Clergie taken away by the Laws of Clarendon where yet only the old Laws were restored was thought as legal an impiety as heinous as could be yet Bellarmine though a man more nimble then ten thousand Beckets durst not make it of Divine Right Jure Divine valde conforme is as much as he thinks it is Not of Divine Right that were too high not of Humane that were as much too low but very conformable to Divine Right which is a ridiculous conforformity and makes it neither the one nor the other Within five years in the time of King Henry the 2. there were above one hundred murthers committed in England by Priests and men within Orders so that it was time to take heed of these
6. And again there in the Chapter of the Maletot u c. 7. The ill Toll or Charge of 40 s. upon every sack of Wool is taken away where are these words We have granted for us and our Heirs not to take c. without common consent and good will By the Statute called de Tallagio non concedendo No Tollage nor aid was to be set or levied but by common consent w 34 E. 1. All new Offices with new Fees are within this Statute x 2 Inst 533. No man is to be charged by any benevolence which is condemned by a Statute as against the Law y 1 R. 3.2 He who judges things impartially must confesse the English ever to have been the most happy and most free of all people while they enjoyed the benefit of these lawes and are likely yet to continue â—s happy under them for the time to come But as some there are as is noted who will allow no authority but their own not reason it selfe nothing without themselves so some there may be rather for a Sect then the truth more willingly following a great name then reason chusing number rather then weight and worth carryed away with authority as they call it such as will yeeld to nothing else If any such there be I will please them they shall have authority with truth weight and worth together Not that I bring in other vouchers as if I refused those or thought them not sufficient who as have shown before are the true and undoubted Judges of the lawes In the Councel at Oxford of the English and Danes held in the sixt yeere of King Cnut The English and Danes are said to agree about keeping the Laws of King Edward the first Wherefore they were commanded by King Cnut to be translated into the Latine Tongue and for the equity of them those are the words to be kept as wel in Denmark as in England z Mat. West flor Hist l. 1. 311. Wigorn. 311. Although it is said the English laws * Gloss ver Lex Dan. were silent spake not in the times of the Danes which might generally be true yet in the reigne of of this King it was otherwise as appeares by his excellent lawes of Winchester full of piety and justice a Concil saex 569. These were the famous lawes observed by King Edw. the Confessour after many of the laws of K. Aetheldred many of those of the renowned Councel of Aeaham under the same Aetheldred are amongst them In the Epistle of King Cnut writ to the English when he was coming from Rome He saies He bad vowed to govern the Realms subject to him justly and piously and judgement in all things to observe At his returne saies Malmesbury he was as good as his word For all the Laws by the ancient Kings and especially by his ancestour Aetheldred given under penalties be commanded to be observed for ever which now men swear to keep under the name of King Edward not that he ordained them but because he observed them b Malmâ—b de Gest Reg. l 2. c. 11. p. 75. How much the ancient Englishman loved and prised the Common lawes is evident by what has been before said concerning the Magna Charta and the setling them And it is more evident by the odiousnesse which subversion and the subverters of the Lawes have lain under in all ages There is a Writ in the Register as before to take the impugners of the Lawes and bring them to Newgate c Regist 64. In the complaint of the Bishops of Henry the thirds reigne against the strangers Poictouins his favourites are these words As also because the Law of the land sworn and confirmed and by excommunication strengthned this was the Magna Chaeta together with justice they confound and pervert d Ma. Pa. 396. The Earle Marshall Richard complaines of these Poictouins to this King as men who impooy themselves to the oppression of the Lawes and liberties e ibid. 384. Stephane of Segrave the chiefe Justice is charged in another place with corrupting the laws and introducing new ones f ibid. 392. The same King is told by those Bishops That if the subjects bad been governed according to justice and right judgement of the land c. those troubles had not hapned The Statute banishing the Spencers the father and son has this Article To the destruction of the great men and of the people they put out the good and fit ministers and placed others in their room false and wicked men of their Covin who would not suffer right or law to be had and They made such men Justices who were not at all conversant in the law of the land to hear and determine things Empsons indictment runs Nor having God before his eyes c. falfely deceitfully and treasonously the Law of England subverting g 4 Just 199. The Articles against Cardinal Wolsey before mentioned begin Hath by divers and sundry waies and fashions committed high and notable and grievous offences misusing altering and subverting the order of the lawes His articles are there by the introduction said to be but a few in comparison of all his enormities excesses and transgressions against the Laws These Articles were subscribed by the Dukes of Norfolk and Suffolk the Marquesses of Dorset and Exceter the Earls of Oxford Northumberland Shrewsbury the Lords Fitzwalter Rochford Darcy Mounjoye and Sandys c. all which as those others taking subversion to be so heinous an offence must needs be imagined to esteem the Lawes highly Lewis of France invited hither by the Barons in King John his time in the entrance to his new principality is made to sweare to restore to every of them the good Lawes h Ma. Pa. 282. As others to maintain ad keep the institutions of the Countrey Those who desired a stranger for their master would not be governed by new and strange laws amongst the covenants of marriage betwixt Queen Mary of England and Philip the second of Spain there is one to this effect That he the King Philip should make no invasion of State against the laws and customes of the Realm neither violate the Priviledges thereto belonging i Hollinsh p. 1118. And amongst those covenants of marriage treated betwixt Elizabeth of most happy memory and Francis Hercules of Valois Duke of Anjou the same care and warinesse is had one of the conditons is That the Duke shall change nothing in the laws but shall conserve all the customes of England k Comd. Eliz. 338. The Lord Treasurer Burleigh the Earles of Lincoln Sussex Bedford and Leicester Sir Christopher Hatton and Sir Francis Walsingham were delegates for the Queen men too wise to tie themselves and others to preserve those things which are neither worth a care nor being The Statute 28 of Edw. the 3 l An. Dom. 1363. speaks thus The good ancient Laws customes and Franchises of the said Realm The
second of Richard the second m 2 R. 2. c. 1 Wills that the great Charter and the good laws of the land be firmly holden The 3d. That the good laws and customes c. be bolden n 3 R. 2. c. 1 v. 5 R. 2. c. 1 7 R. 2. c. 2. 9 R. 2. c. 1. The 4. of Hen. the 7. And over that his Highnesse shall not let c. but that he shall see his laws to have plain and true execution and his subjects to live in surety of their lands bodies and goods according to his said laws c. o 4 H. 7.12 c. 9. The 32. of King Hen. the 8. saies The King calling to mind c. that there is nothing within this Realm that conserveth loving subjects in more quietness rest peace and concord then the due just ministration of his laws c. The first Parliament of King James has The fundamentall and ancient lawes which this King as there is said expressed many waies how far he was from altering or innovating whereby c The peoples security of lands livings and priviledges both in generall and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present confusion wil fall upon the whole State c. p 1 Jac. reg c. 2. Twice in Petition of Right is this expression and other the good Laws and Statutes once the laws custows once franchise of the land The conclusion is all which they humbly pray as their rights liberties according to the laws Statutes q 3 Car. Reg. If publike authority authority of Parliaments authority of the English Nation in all ages can make an authentike and valid testimony by that authority we see our Lawes are facred pious good mercifull and just their ends aym meerly at the peace and happinesse of the Nation the only ends which Lawes should aym at and these being had he must forfeit the Noble reason of man who desires a change which whensoever it shall happen by the judgement of a Parliament like the change of death must be fatal to the State Though here is already the weight I promised and such as all English men should allow I wil adde a testimony or two more of private men not of the profession yet no strangers in the Law as the most knowing Sir Henry Spelman Of all municipal lawes our law plain and without dresse as she is is the most noble Lady replete with all justice moderation and prudence c. As Sir Thomas Smith the people here are accustomed to live in such sort that the rich have no more advantage then the poor Dr. Cowel a most knowing Civilian very judicious in our laws sayes of the two Benches They decide all causes religiously according to the rescript of the Common law r Justit Angt. 24. sect 2. a most learned Knight of our age praises highly our forefathers for their vertue abroad and their exquisitenesse of counsel and judgement at home amongst whom as he in Livies expression The commands of the laws were ever more powerful then those of men and Iustice was administred with that sineerenesse and judgement you would believe it to have proceeded from Papinian himselfe of all men who are shall be or have been the most skilled in the laws Å¿ D. Rog. Twisden praefat ad Ll. Guil. 1. Hen. 1. Our laws are not written in any general tongue and so cannot easily be known by forreigners but by the effects long continuance here or acquaintance and seldome so strangers every where for the most part desiring to take notice of every thing else rather then of laws The French man who wrote the estates of the world discoursing of the charges practised in other provinces in his time sayes But the liberty of England is marveilous in this regard no Country any where being lesse charged t Les Esta c. p. sciâ—ur D. T. V. Y. v. Sir Rob. D alingt survâ—y of Tuscany The Lord of Argenton as much experienced as any man in his age or perhaps since who had seen Venice and the order of things there and praises it sufficiently yet speaks in his plain manner of England Now according to my judgement amongst all the Seigneuries of the world which I have had any knowledge of where the Commonwealth is best managed and where there is lesse violence used upon the people it is England u Liure 5. It was otherwise of France in the days of his Master Lewis the 11. In many places so grievous were the Taxes men women and children were forced to draw the plough by their necks and that by night for fear of the Collectors w P. Mat. Lon. 11. If we look upon the Peasants of France flead alive the Villano or Contadino of Italy either under the Spaniard or Venetian Where Fruit and Salades * Sir Rob. Dalingtons Survey of Tuscany nay and Asses dung all things whatsoever pay Tribute but mens sighs where one word gabelle is of the largest extent and more used then all the other in the Languages leave out the chains of the Turkish Gallies and the most sad thraldom of those Natives of America under the Spanish Conversion of the newest Fashion Baptized but as Bede says of the Protomartyr Albane in their own blood we shall finde nothing so miserable so unhappy in Nature Our Yeoman as Sir Tho Smith is a free Englishman a man well at ease and having honestly to live He savours says a Reverend Church man of our Nation of civility and good manners living in far greater reputation then the Yeoman in Italy France Spain Dr. Heyl. Geegr or Germany I may say for some of them more freely more plentifully then the Gentry of either Spain or Italy being able to entertain a stranger honestly dyet him plentifully and lodge him neatly We may read the words of a Parliament to this purpose after the discovery of the Powder-plot No Nation of the earth hath been blessed with greater benefits then this now enjoyeth x 3. Jac. and whatsoever benefits we have received we owe them all to the Laws they are derived to us thence we can attribute them to nothing else Honour given to the Professors of the Laws As Justice is the most excellent of all vertues seated in the Will as more sedate and nearer to the reason its object being the profit of others So it is with good cause preferred before Fortitude as Peace before War which ought to be ruled by a certain Justice and if all men were just there would be no need of Fortitude The ancient Chief Justice whatsoever may be talked of the Constable or others was the Great Officer of State and as he had more power so had he the precedency of all men else Odo Earl of Kent Chief Justice in the time of William the 1. is called Prince of the Palace by Ingulphus y
of it Many great Families have been advanced by the Law many of the best and noblest thought it no disparagement to professe it Some of our illustrious names may be met with amongst the Serjeants and Apprentices of our yeere books as well as in the Heralds books If like Boccace his Ghost all those who laid the foundations of their houses who first broke through the miste of time wherein they and their ancestors were hid before who first shewed their names to the world were to appeare before us in the habit of their sprouting up with all their sordid cheats with all the crafts several close arts of thriveing used by some displayed and revealed all the false sleights of the Town and Country laid open where every peny is got oftentimes too too dishonestly by the unworthiest sins a man can commit how would the gawdy off-spring curse his own rise the branch be ashamed of its own root vertue alone is honourable mony can neither make men wise valiant nor good Arts and Armes onely and really innoble that of all others most deservedly whose object is meerly the good of mankind which imployes men continually for the publique for the preservation of the people pacique imponere morem The souldier as Cicero may once profit his Country the Lawyer always Our most Reverend Judges and professors of the Laws have in all ages * Anciently part of the Persian kings title The ophyl risen with the Sun and given eyes to the blinde night But I have offered my selfe too far to ingrateful dangers Here I will stop and give over Not that much is not left out which might have been said of the sacred Law of the Land and the administration of Justice here Much is left out and I wish some more happy and more able would undertake the whole It is enough which again I may protest that I speak not in the midst of Fetters and that I have defended and the defence could not but be easie truth onely for its own sake yet I believe he who knows most who commands most in language and Sciences who pretends justly a title to the kingdome of the barre or schooles with all his mouths and tongues if he had more then one hundred could not do full right would be short and wanting here Not in our right hands as is said of those souldiers in Curtius but in our Laws our helpe our hope and liberty lie We need not aske for propriety not for peace not for order concord security not for wealth nor honours one wish comprehends them all carries all these with it the safety of the laws is all these propria haec sidona We have seen at large what excellent blessings we have received from the Law these blessings may be everlasting if that be made so I know nothing it ought to yield to and our Parliaments have thought so but eternity and the change by that FINIS The Table A. AIde to Knight the eldest son c. 127 Alodium alodiaries 129 130 c. Aelfred the King not the founder of the Saxon policy 85 86 Aequity and judging according to equity how to be understood 31 32 Aescuage 127 149 Aldermen amongst the Saxons 98 B. Barons Norman and English ever lovers of the Laws 107 280 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Bocland 140 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Britannie and the Britains under the Romans 71 72 73. The Civil Law the first Law heard of them amongst them 73 74 governed by Kings 72 C. Casars Commentaries l. 6. concerning the Gaules and their wives 75 L. Chancellours Oath 65 Chiefe Justice the greatest subject 159 288 289 Church highly favoured by Lawes 273 274 Circuits of the Iudges 163 Civilians what opinion they have of the Pandects c. 226 Clergy men heretofore Lawyers 292 Cnut the king composed the law called the law of St. Edward 88 Counsellours 175 Courts of Iustice are of Saxon original 94 95 96 Courts since 159 160 c. Courts standing and ever open 165 166 Customes unwritten why 89 D. Delayes odious in the law 169 170 c. De rerum venditione that constitution set forth at Yorke 74 Drenches 143 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Duilian baâ—k 218 E. Earles amongst the Saxons 98 Edilinges 140 Edward the third first changed the Welsh lawes 76 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 200 Eleutherius his Epistle to Llever Maur a forged piece 73 F. Faulehen what 124 Feudes 121 Firdfare 149 Foleland 129.152 Forstale 134 Frankalmoigne 127 Frankleudes 129 130 The French Policie and ours much alike 126 Fyheren 124 Frilinges 126 Fundi limitrophi 119 G. Gavelkinde in Germany 125 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Germanes and their institutions have overâ—â—owen all Europe 78 79 80 Their lawes called salic more antient then Justinian 81 Glebal gold 120 Adscriptitius ibid. Grithbrece 134 H. Henry the eight imposed wholely the English lawes upon the Welsh 77 Heinfare 145 Hereban 150 Herefare 127 143 Hereot 127 14 High Court of Iustice 97 159 Hotoman his censure of Littleton 240 I. Infangennethiefe 134 Iudges not to decide causes according to discretion how to be intended 32 33 Their authority 199 c. Assistants to Kings and Parliaments there heretofore Barons 290 Honoured 292 293 Iuries tryals by them not brought in by the Conquerour 92 93 Iustice to obey laws 33 K. Kings of Macedon ruled by law 24 Of Mexico might not be touched 45 Kings of England their Oath 111 Might free men from the Firdfare Burgbote c. 151 Kisses given to Princes 118 L. Laudamentum 124 Laws the enemies of them 1 2 Necessity of them 18 35 Law what it is 34 35 Force is not law 23 24 25 Nor the arbitrary will of man 27 28 Why laws were written 30 31 How antient 35 Law of the land in Magna Charta is not waging law 50 51 Common Law 75 excells and may controle Statute laws ibid. Custome and expirience begot it 60 61 It is known and to be found in books 60 65 66 67 Its antiquity not Norman c. 64 c Laws of Hoel Dha and the Welsh 76 77 Salie Laws 86 81 82 The Saxon laws 84 the several kinds 88 Our fundamental laws Saxon 90 91 known by the name of St. Edwards laws 100 101 102 104 setled in the great Chaster 108 110 then called Common Law Letters of the Ionians and Phaenicians heretofore neer the same 37 Loudes 131 Liberty what is 45 46 c. Littleton vindicated 240 241 Lombards their laws 84 M. Manners and priviledges belonging to them amongst the Saxons 133 Method of our law 243 N. Normans themselves ever zealous for the laws of St. Edward 135 107 108 They as some received their lawes from the Saxons 112 O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 120 Operae liberterum 119 P Papinian Judge at York 74 Papists ever enemies to the lawâ—s 67 Parkes 136 Plea of Pinneden under Will the 1. 104 Pleadings 209 Polydore Virgil 92 93 Propriety 2 3 R Rectories and glebe-land whence 151 Reliefe 127 131 147 S Salbuch in Germany 83 Saxons their policy and government 85 86 Sac. 134. The Saxons subverted all things 77 78 Saxon tongue 215 216 217 Sicyon never changed her lawes in 740. yeers 53 Slaves thrown to Lampries 252 Soc 134 Socage 129 Spaniards retain the German customs 128 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 120 Subverters of the laws 66 67 T Team 134 135 Tenures all Europe ever 118 Reasons of them 119 120 All lands held of the King 149 Terms of the law 213 c. Thanes Thenes 137 138 c. Tol 134 Tribonian censured by Perrinus 226 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 V Vassi dominici 125 Vicedominus 99 Villeins 153 154 Vtwara W William the 1. his entry not so violent as is thought by some 143 144 Writs whence they issue 162. See 207 c. anciently the Kings letters there No man to answer or be called in question without a Writ 209 FINIS