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
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
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
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
The Lord Chancellours oath is thus That he shall doe right to all manner of people poore and rich according to the lawes and usages of the Realme s 10. R. 2. rot Parl. 8. The Barons of the Exchequer sweare no mans right to disturbe let or respite contrary to the lawes of the land t 4. Jnsti 109. which must be meant of the knowne and certain Law of the Land called in Magna Charta Legemterrae upon which all Commissions are grounded wherein is the clause to do what belongeth to Justice according to law and custome of England u 2. Jnsti 51. The illustrious Viscount of St Albane amongst his Aphorismes of universall Justice has this Let no Court deale in cases capitall our Lawes say Civill too but out of a knowne and certaine law God denounced death then he inflicted it nor is any mans life to be taken away who knew not first he had sinned against it w Augm. scient 402. By this Law of the Land although there is not nor cannot be any liberty which should protect the transgressors of it yet have all Offenders a legal tryall nor are possessours of the worst faith thrown out without the hand of the Law onely against those who attempt to subvert or weaken the Lawes there is a Writ to the Sheriffe in nature of a Commission to take the impugners and to bring them as the Register to the Gaole of Newgate x Regist 64 2. Justi 53. This as the Lord Cooke is lex terrae The Law of England to take a man without answer or summons in this case and the reason given is He that would subvert all Lawes deserves not the benefit of any Amongst the articles exhibited to King Henry the eight against Cardinall Wolsey he is charged with oppression in imprisoning Sir John Stanly and forcing him to release a farme taken by Covent Seale of the Abbot of Chester c. as the words by his power and might y Artic. 38. And that he threatned the Judges to make them deferre judgement z Artic. 39 that he granted many Injunctions the parties not called nor any bill put in by which diverse were cast out of their possessions of their Lands and Tenements a Artic. 21. The close was That by his cruelty iniquity and partiality he hath subverted the due course and order of the lawes His Inditement went higher and accused him That he intended the most ancient lawes of England wholly to subvert weaken and this whole Realme of England and the people of the same to the Lawes Imperiall commonly called the Civill Lawes and to their Canons for ever to subiugate c. b Mich. 21. H. 8. Coram Rege Now although the Civill Law deserves as much honour as can be given it and commands and is obeyed much abroad yet this Law of the Land held the possession here by a long unquestionable prescription and after the tryall of many ages got the affection of the people whose fathers grew up happily under it which was not easily to be removed the rather because seldome doth any Nation willingly submit to or welcome the Customes and Laws of another which they have not been acquainted with and our Judges who wil not in our Books part with one of its Maximes c 2. Jnst it 210. would not have fallen downe before the shrive of any unknown Themis and have offered up the whole tables It were no hard matter to heape up testimonies Vid chap. 3 if some would thinke it lawfull to trust men in their owne arts or professions and can it not but be more reasonable that such should be heard in the defensive then that those who professe full Hostilitie bringing with them onely mistakes of their owne prejudice should sit Judges of the tryal which is in their own cause and if thus far the reines be given to turbulent desperate spirits every thing how sacred soever may be arraigned at these tribunalls the articles of our faith will quickly totter nor will any principle be safe This discent will be fatall there being no stay in the precipice the bottome onely must receive men where he that falls is crushed to pieces what is worse those unhappy ones who follow cannot see their danger Thus we have seen what the common Law the Liberty and Franchise of the free people of England the law of the land is The law of antient time d. 27. E. 1. of old time used e 25. E. â— the old law f 42. E. 3. for ages according to the judgement of these Parliaments makes the law more venerable it is an addition of honour to it Now it followes in order to speake something of the Antiquity of this law The Antiquity of the Law But as the beginnings of things sometimes are rather guessed at then knowne it is no wonder that there should be no generall agreement here of opinions some will make the Law a Colossus of the Sun knocking the Starres with its head more ancient then the Dipthera or Evanders mother others a late small spark struck from the clashing of the Norman Swords the child rather of Bellona then Jove terrible in the Cradle the truth being mistaken by both To relye upon the authority of a Chancelour or rather chiefe Justice in the time of King Henry the sixth upon which the * r. 2. Epi. r. 6. Epist antiquity should be raised was lesse then that of Aventine who professed History where after a prodigious linke of German Kings before the Arcadian Moone he will needs bring his Dutch to the Wars of Troy which he proves out of the laws of Charles the 4. who lived lesse then two hundred yeare before Aventine and some three hundred yeares before us from which he is peremptory there must be no appeal g Boicar Hist 49. for a great Lawyer continually imployed in the publick affaires or in his study where his many volumes upon the law show the whole man might well be taken up to faile in a piece of History if he may justly be said to faile this way who onely trusted another who was carelesse It is no blemish such as can deserve the censorian rod of our Criticks besides all men love to consecrate their originalls This is allowed to antiquity saies Livie mixing things humane with divine to make the beginnings of Cities more majestick and we may say as he doth of his Rome of our Lawes if it be lawfull to canonize any to carry them up to Heaven or fetch them downe from thence that glory alone is due though it needs not to the most sacred lawes of the land Sir John Fortescue his words are to this effect That if the lawes of England had not bin most excellent the Romans who cry up their Civill Law Saxons Danes or Normans had altered them h de lg Ang l. c. 17. by which our Lawes must be Brittish at least and our
all laws whatsoever unlesse there could be a stay of mens manners unlesse they could move in an orderly course either continually running upon things forbidden or avoiding them either constant to their own goodnesse or their lawlesse sins there must be new Laws to amend what is amisse unlesse Prophesie may be presupposed in the first Lawgiver who w th cast of his eye w th one look can see every thing Thus we have seen whatour laws are from what fountain they flow so then their discontent who onely hate the sword and by whom the laws are loathed in no other notion but that of Norman conquest must be removed they being not onely demonstrated to be justly made and according to the law of Nations weighed and allowed not by the wisdome of a narrow age but imbelished and polished by the experience and wisdom of a thousand yeers the fundamentals being yet of an higher rise and what is most of all Saxon-English must needs be venerable they will be so with those who are won by reason and with those who are not capable of that yet will be taken with the name if their obstinacy be not above their senses But if the law be not Norman Tenures if it suffer that which is some will say it is the same whether the Wen be native born with the face or ad nate growing upon it after the deformity is alike And the next guilt charged upon the Iaw is the vassallage of feudes or Tenures being a servitude thought unworthy of free men it may easily be shown that those were not first shown us by the Normans that they had made their entrance long before and if this be culpable scarce any laws but none of those of the Germane fountain from which the most of these as is proved in the western world are derived are innocent I will not look so far back as upon Surena among the Parthians whose hereditary right it was and might be like our grand serieauty to put the royal bond or Cydaris as it is called by the Persians k Curt. l. 111 upon the Kings head l Plut. in Crasso Not upon the souldiery amongst the Gauls heads devoted to him and his fortune whom they followed the Gessel amongst the Gauls and Germans m Caes com l. 3. Not upon Nero his kissing the Armenian Tyridates kneeling which might be thought homage n Sueton. iu in Ner. Nor upon Alexanders kisse taken by Mr Fulbeck o Paral. 4. Dial. for the same Calisthenes is refused this kisse given by the king to every of his friends at supper with him after they had drank of whose fee we read nothing in History and his Philosophy would make it seem small one Budaeus would have seuds first begin in the antient Clienteles of the Romanes and in the relation between the Patricii the Nobility and the Plebeians or Commons the tye betwixt whom was reciprocal the Patron was bound to protect the Clyent and he with all faithfulnesse to observe the Patron to attend him in publike assemblies to contribute to the marriage of his daughters to the payment of his publike mulcts c. Yet was there another relation and that was servile betwixt the Patron and freed man appearing by the operae libertorum the duties and day works of the freed man to be done to the Patron whom he was obliged if he were an official freed man to serve and help in all things the artist paid a certain sum of mony either might be reduced to his servitude if he were ingrateful part of his goods at his death were due to his Patron There were the fundi Limitrophi the border grounds of the Romans belonging to the souldieâ—s marchers upon the guard for defence of the borders And Alexander S. verus is reported to have given the Lands of his enemies won by him to his Praefects of the marches and to their souldiers and to their heirs p Lamprid. in Alex. Sen Constantine the great appropriated the Lands assigned for the pay of the souldiers to them and their heirs with this charge to maintain continually a certain number of souldiers which came to a neer resemblance Gregory Haloander q In praes Noves saies the customes of the feuds were called by the ancients jura militiarum by Justinian in the novelles 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Those who hold feuds by Aescuage are called by him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 shield bearers The 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the novelles is more then our livery The chief Lord the first yeer the heir or successour of the Vassal came to the Land was to have the whole revenue of it or a certain sum of mony in token of the return to the Lord and redemption There was the glebal goldein in the Code so called because the Senators paid it to the Prince for their possessions There was too as Zâ—zamene The glebal adscriptitius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the villain who continued was aliened with and followed the field Germanie as the most knowing knight r Gless D. Spelm. scudum brought forth the rights and customes feudal and propagated them by tradition not writing their beginning is rather to be referred to the Salian Franks says the most learned Mr. Selden then to the Lomberds Feud is a reward or stipend It is a right in anothers land to the use and profits which the Lord gives for a benefice on condition That the receiver do fealty military duties and other service By which as in our Copy holds the Franktenement was in the Lord still Necessity of war begot the invention Emperours Kings and Princes to reward those who had fought valiantly for their new Conquests and to plant a perpetual souldiery prepared ever ready upon the Ban to get to horse or march bred up to armes as to a profession to the intent the Country might be preserved against invasions and tumults without the Princes or the publike charge mischiefs sometimes breaking in so suddainly that the slownesse of any other preparation where levies of men and monies require time cannot be staid for Countries were given to the Capt. who after made subdivisions to their souldiers the Captains part being proportioned according to the number of those under him all being still incorporate a civil unseen militia not ever shriking the eyes of others quietly mixing and keeping course in the common streame like Traianes Cohorts differing nothing in habit P. in Paneg. tranquillity and modesty from others but at the first summons of the foot ready like the seed of Cadmus to start up fields of armed men The Justice of the institution was as much as the policy all these tenures have been created according to this rule as the Lord Gooke s 4. Jnsti 192. Cuius est dare eius est disponere every proprietary may annex his condition to his grant and dispose as he pleases of his owne nor has the Vassall any reason to
complaine volenti non sit injuria he might have refused the thing his acceptance binds him to the charge coincident Hotoman describes a fief to be a benefice for which some duties are done to testifie the gratefulnes of the taker t Disp c. 1. I should think here would be the injustice That the whole benefice should be enjoyed by the Tenant and the Granter from whom it moved be allowed none of his owne reservations to himselfe I beleeve there are few men now without harths or housholds Gods who would resufe a good manner because these tyes hang upon the Labell Sir Themas Ridleyn a Civilian fetches the Feudes chiefly from the Lombards u View c. 71. much augmented and adorned by them they might be w Gloss D. sp 256. which Lombards were Cousin-Germanes of the English Saxons whose Companions in the Conquest of Italy part of the Saxons were and their charges are almost the same with ours yet in the volume of the antient Lombard Lawes the word feud is not to be found seldome the word benefice but their are many things directly tending to this purpose as also in the Laws of the Franks called the Capitulars our English Saxon those of others The word feud is of Saxon originall feb fech from whence it comes being the same with fee in use now The greatest part of the words taste not onely of the Germane but of it 's more ancient dialect the old Saxon. x D. spelm ibid. The feuds came but of late to be a volume of the Civill Law composed by Obert de Horto and Gerard Niger under the Emperour Fredericke the first surnamed Barbarossa antiently the fee was held meerly at the will of the Lord y Ger. nig l. 1. T. c. 1. after for a yeare for life made perpetuall and hereditary by Conrad the salic the yeare 1025. amongst the Germans where the discent was as we call it by Gavelkinde amongst the French in the reign of Hugh Capet which he began in the yeare 988. in the yeare 913. as Munster will have it Conrad the first changed this custome he gave the Dukedome of Saxonie to Henry the Faulconer as a fief hereditary to the end these are his words that he might be the more vigilant to combate the Obotrites now those of the Dukedome of Mecklenburge and the enemies of the Faith After as he Otho the first who began his reign 938. and his Successors did the like z Cosmegr 346. after his defeat of the Hongres a ibid. 359. Lothaire the Emperour forbad Lords to take away the Vassals fee without his crime which some interpret signall ingratitude b Feud l. c. tit 20.23 to which Conrade addes unlesse he be convinced of the crime by the judgement of his Peers or equals of the Court c ibid. which is called Landamentum It is said of the Germans the Emperour because he cannot judge causes in all places conferres upon illustrious men viz. Princes Earledomes and feudal banners d Specul Sax. Artic. 52. as another they have their fanleben or principall fees the collation and investiture of which belongeth onely to the Emperour e Stat. German p. 2.52 These were the fees of the great Captaines or Barons called by them freyberen under which are the Medii Liberi who followed the Warre and ought homage to another as Servitors noble f Munst 145. the Land they called Terra salica was the same with our Knight service g Bodin l. sixieme c. 5. this was simply called a fee military held of the Barons and Vavasours of all which the Iaws speak where are mentioned the great Captaines who received the regall fiefs called vassi dominici who held in chiefe the middle of a lower sort who received siefs from them and the lowest to whom those gave h Feud l. 1. tit 1. sec 4. Et tit 15. Frederick the first is made to speake thus We in the presence witnes of all the Teutonic's Lombards and of the Bishops and lay Princes and Barons and Vanasours c. i Raedenic l. 2. c. 31. There is a Gavelkind as well in their honours of the greatest Houses as of the Lands which held in the Crowne it selfe till Charlemaigne and is abolished in the House of Hessen but fince the last peace The words of the Lord Arundel of Wardours creation made Earle by Rodolph the 11. for his good service and valour against the Turkes at Strigoniun and the parts about were we have created him and all and every of his Children Heires and Posteritie and Descendents lawfully of both Sexes for ever to bee born Counts and Countesses c. The ancient Saxons were divided into three sorts the Edhilinges or Nobles the Frilinges or Freemen the Lazzi or Villeins which agreed exactly with our distinctions though now their remaines nothing of the latter but the memory of it with us not yet worne out a mongst the Germans and as to some duties as tilling the Lords ground carrying in his corne c. the complaint of the mutinous Clownes of the schwabische kraisse or circle of Suevia was true that their condition was little better then servile k Sleid. com l. 5. fiefs are every where in France upon the reasons before brought in as all their old Laws Institutions by Pharamond and his German Frankes the Conquerours of the Gaules The Nobles from the time of Hugh Capet tooke their surnames from their fiefs the French have their fief dominant en royale or tenure in capite held immediately in chiefe of the King and whereof many others hold their fief of Dignities either held immediately or of some fief so held then called fief mesne a Barony or Chastelleny the feudum vexillare or fief Rdnneret The fief ample or Knights fee held of the Lords Mesne Barons or Chastellaines and their fief roturior ignoble as our Socage Wardship Fealty Homage Courts Customes Iurisdiction over Vassals are incidents of the noble fiess a name as Berault which comprehends all the species but the last they have their Cotier paying the Cens a quit rent or tilling the Lords ground c. The Cens was a Custome of the Romans and imposed in imitation of them their Villain or basest servile Tenant is yet in being they have their Court feudale or fonciere which is as our Court Leet or Baron a Court of base Jurisdiction to which the Lords Vassals owe their suites and services so of Escheates there is little difference betwixt them us in them and in the right d'Aubaine where a Stranger possessed of Lands or Goods dies not naturalized The right of bannery is the same with us which is the priviledge of having a common Mill Oven c. whereto the tenants of the Maner must resort so of the dehris for wrecs or shipwrackes of right of warren fishing and fowling of Hereot a Custome of of the Germans yet of Reliefe of escuage
was suffered in the Civil law parents by a law of the Tables might sell their children thrice g Sect. 18. The Lord had power of life and death over his slave h Insl l. 1. gloss servitus The Petronian law restreins from forcing them to fight with beasts at their pleasure not observed more then the Edict of Nero which deputed Cōmissaries to hear the complaints of slaves They put them to death for trifles Vedius Pollio threw a slave to be devoured of Lampries which he fed thus for breaking a glasse i Dio. l. 54. If a Lord was murdered by one servant it was the old custome saies Tacitus to condemne and put to death all the slaves according to which in the case of Pedanius secundus Provost of the City four hundred innocent men lost their lives k 14 Ann. Where law setled quietly without any awe upon those who are to receive it has too many of Draco's Rubrickes of blood it is terrible Our lawes are not cruelly bloudy they distinguish betwixt intentions and actions and actions as they have their degrees of mischief have their degrees of punishment King Edgar wills in a law That in offences clemency and forgiveness be used as much as justice so that punishment may b◠tolerable l Ll. Nol. 1. Ll. Cnuti 1 2. ve a command not forgot it has continued with the laws Godlike mercy ever saving more then justice strikes Wisdom and mercy justice and grace are joyned m Beact l. 2. as is observed in the beginning No free man can by this law be disseised of his free hold but by lawful judgement c. In those articles against the most worthy Earle Hubert de Burgo he concludes It seems to him That he ought not to answer without restitution being disseised of what he had since no disseised man is obliged to answer in any Gourt c. n Additam Par. 153. This is more visible by the law since As the Lord Cooke if a man be accused or indicted of Treason or Felony his Lands cannot be granted to any not so much as by promise no seisure can be made before attainder o Inst 36 48 Mag. Char. c. xxii Abjuration challenges to the Jury Clergy were no smal favours of the Law If a Felon demand his book and can not read and demand it again under the Gallows and read he shall have the benefit of it p 34. H. 6.49 One Indicted of Felony produces a Charter of pardon discordant to the Jnditement and to his name the Court perceiving the King meant to pardon him remanded him to sue for a better pardon q 46. Ass B. F. Office del Court as if mercy were given in charge to the Justices they ought of office to take notice of all generall pardons though the party plead them not r Dy. 28. and there if all Felonies under twenty shillings be pardoned the Judges ought to dismisse him to God as the Booke who is indited where the Theft is under that sum The Justices heretofore knowing the Felon to be a Clerke who tooke himselfe not to his Clergy would not give Judgement to hang him ſ 22. E. 3. If the Prisoner for Treason or Felony has any matter of Law to plead he is to be allowed his Counsell after the plea of not guilty where it will not be allowed the Court ought to be instead of Counsell for the Prisoner to see that nothing be urged against him contrary to Law and Right Nay any learned man present may give information to the Court in behalfe of the Prisoner for his benefit t 3. Inst c. 2. The Judges as in Humphrey Staffords case is observed u 1 H. 7.26 3 Jus 29. ought not to give their opinions before hand which is condemning a man before he be heard the way to make indifferency impossible whereas as the Lord Cooke untill the party has made his defence things may be represented much to the disadvantage and a small addition or substraction may alter the whole Case In Common Pleas where the Defendant has accepted the Writ or Title where he has lost his advantage by his conclusion or the issue be found against him yet if it appear to the Court that the Plantiffe has no Title no cause of Action Judgement shall not be given against the defendant w Plowd 66 Dy. 13.76.119 120. Every restraint of a free man though not within the walls of a prison is imprisonment x 2. Just 482. Rot. Pael 2. H 4 nu 60. No man is to be arrested or imprisoned against the form of the great Charter before recited y 2. Just 54. No man is to be imprisoned but for a certain cause to be shown z ibid. 53. to be conteined in the Warrant c. the conclusion of which ought to be and him safely to keep untill he be delivered by law c. As the fift of king Henry the fourth None are to be imprisoned but in the Common Goale to the end they may have their tryal at the next Goale delivery c. As Justice Fitz Herbert to keep a man in prison without coming to his answer is against Law a Na. Br. 118. c. The Abbot of S. Albanes would not make a Goale delivery at the time to save costs he lost his Franchise by it b 8. H. 4.18 The Abbot of Crowland forfeited his Franchise for deteining prisoners after acquittal and their Fees paid c 20. E. 4.6 such deteining after the Habeas Corpus is false imprisonment d 2. Just 53. there are many provisions for those who are grieved in these cases by Indictment Writs and Action e ibid. 55. Though the law requires safe and streit custody that must be without any torment or pain to the prisoner relief may be had against cruel and hard usage of a Goaler f 3. Just 35 91 92. The prison as Bracton is not for punishment but custody A certain Priest arrained in the time of King Edw. the second put himself upon the Country and stood at the bar in Irons but by command of the Justices he was freed from them g Fish Corene 432. and as to irons saies the Lord Coke there is no difference betwixt a Priest and a layman h 3 Inst ubi sup No felons comming to answer in judgement ought to be charged with irons i Brit. c. 5.14 c. 11.17 The law of the Land is a law of mercy for three causes as the Lord Coke 1. The innocent shall not be wasted by long imprisonment but speedily come to his trial 2 Prisoners for criminal causes brought to their trial ought to be humanely dealt with 3. The Judge ought to exhort them to answer without fear to assure them that justice shall be duly administred k 2 Ins 316 The Law has a most tender regard as is said of the life of man By a Canon
of our old English Church he that killed a man in publike war was enjoyned a penance of 40 daies l Concil sax 383. By the Common law killing by misadventure or in a mans own defence was murder founded upon the judicial law before the Cities of refuge the forfeiture of both was as in the case of murder before the Statutes of Marlebr and Gloucest the forfeiture of goods and chattels remaines yet If he that kills by misadventure escapes the Towne where the Fact was committed is to be amerced m Fitzher Corone 302 2. Iust 148 149. So where the killing is se defendendo n 2. Inst 315. Mens lives are so precious in the Law that the death of a man cannot be justified the Defendant in an appeale cannot justifie the death se defendendo but must plead not guilty o B. Appeal 122. A verdict that A. killed B. se defendendo is not good the special matter must be set down that the Court may adjudge the killing to be upon inevitable necessity p Corone 302 Maiming wounding menace of life and member in defence of the possession of Lands or Goods is not justifiable An infant of nine yeers killed another infant and hid him c. the opinion of the Justices was that he should be hanged but execution wat respited c. q Corone 57 3. H. 7 d. 12 If a man be drowned by mischance in any pit not fenced the Town is to be amerced r Coroue 304.320 v. 339.402 421. so where a man dyed suddenly of a Feaver and was buried without viewing by the Coronour Å¿ ibid. 329. a Lunatick kills a man he must sue for his Charter of pardon t ibid. 351. And where the worst of men suffer those punishments which Justice inflicts which it were cruelty destructive to Government and Society to forbear it is well said to punish the Homicide and sacrilegious is not effusion of blood but ministery of the Lawes I say where justice doe strike it is with an humane severity the offender with us does not carry to the place of execution his own Crosse he is not first whipped then nailed naked to the unhappy tree as it is called we have no Italum Robur Robur or strong hold as it is Englished in a stinking prison horrible for darknesse where malefactors necks were broke by tumbling them headlong from the stock of a tree there fastned in the earth No rack or brake where the party innocent oftentimes was tormented till he accused and condemned himselfe being hoised upon it and fastned with ropes to it his hands at the upper part and feet at the nether part his joynts were not onely racked but the tormentors oft burnt and tore the flesh from his sides with hot plates and Iron pincers Those who would have introduced the Civil law in the time of King Hen. the 6. brought the rack into the Tower * 3 Just c. 1. as a beginning to it Hereupon as is observed the most reverend Sir Iohn Fortescue Chancellor or rather chiefe Justice of England writ in commendations of our Lawes where he maintains that all tortures are contrary to them There is no Law saies the Lord Coke to warrant them in this land Although there were no ful proofs against some of those horrible miners in the Gunpowder treason yet was it not thought fit if the discovery could be made any other way to take the extraordinary of the rack Some other legalartes were used yet I cannot tell what could have been extraordinary or illegall in the case of such Hellish parricides who if they could superas evadere ad auras and assume bodies could not much exceed themselves Garnet and Hall betrayed themselves by their own conference which was permitted to catch them That conference is called by the Earle of Salisbury The finger of God Thereby so he tels Garnet the Lords had some proofe of matter against him which must have been discovered otherwise by violence and coertion a matter saies the Earle ordinary in other Kingdoms but forborn here c. v Proceed against the Gunpowder Traytors He addes His Majesty King James and the Lords were wel contented to draw all from Garnet without racking or any such bitter torments We have no dejectio è soxe like that headlong throwing down from a rock in the Tarpeian mount Nothing like the Gemonian staires whether the malefactour was either dragged * According to Tacitus Aun l 5. and cast into the Teuere It is said there was not so much left of Sejanus untorne by the people which the Hangman might fix his hook on to draw into the River or as others haled by the Executioners hook thrust into his throat and having his thighs broken burnt clad in a coat dawbd on the inside with pitch and brimstone We have no sawing asunder from the head downward no condemning to a Fencing schoole to beasts mines or mettals no banishment deportation no most barren Gyaros to confine men to not so much as relegation is known in our Lawes No empaling no wheele No deflowring Virgins by the Hangman before they be put to * Quia in auditum saies Tacitus trium virali supplicio virginem affici it had bin far lesse to have broke the custome then to â—â—de this â—â—k â—o keep it L. 5. Ann. death Before Villainage expired here the villain might bind his Lord to the peace he could not kill him if he maimed him he might be indicted fined and ransomed By Magna Charta which is affirmance of the Common law No free man is to be amerced but according to the manner of his offence Misericordia is the word used for amercement there must be mercy in it saving his countenance salvo contenmento c. the Merchant saving his Merchandise the villain his wainage x Chap. 14 Glanu l. 9. c. 11. No amercement is to be set here upon private men but by affeerours who are to affirm upon oath what penalty the offender has deserved as Bracton to doe things fairly neither carried away out of love nor hatred The Writ of Moderata misericordia of moderate amercement is grounded upon this Statute which it reciteth and gives remedy to the party who is excessively amerced If the Jury give excessive damages against any man Attaint lyes usury is not to run against the heir within age y Stat. Mert. c. 56 among the Saxons it was unlawfull hence where rent is to be doubled for default of payment it shall not be doubled during minority of the heir Distresses are to be reasonable and if there be any other chattels sufficient sheep and beasts of the plough are not to be touched It would be infinite to goe on I should as we say not onely want day but a long life were too short to make a survey of all the parts to contract all the graces of this body and pourtray them so that they may be a little and