without triall justice shall not be sold nor deferred c. The observation of these Lawes was a condition of Peace which ever appeased the antient distempers and cemented what was loose and dis-joynted in the great body The Lawes toe of St. Edward are inserted into the oath of the Kings of England usually taken at their Coronations which were not onely superfluous and abundant but an impious vanity if there were no such lawes any where after the solemnity of this religious and sacred bond to be observed The manner of taking the Oath as we find is this The Archbishop asks the King VVhether he be willing to take the Oath usually taken by his Predecessors and whether the Lawes and Gustomes by the antient just and devout Kings granted to the people of England with the confirmation of his Oath he will grant and keep to the same people and especially the Lawes Customes and Liberties by the glorious King Edward to the Clergie and people granted d Ex libro regali After he is led to the high Altar where he swears to observe them c. Further so farre are some from allowing our Lawes to be Norman that they are of opinion the Normans received theirs from us as they most of their Customes being so derived as William of Rovel in his Preface to his Commentary upon the grand Customary Edward the Confessor being a long while in Normandy gave Lawes to the Normans and made the Customes of England and Normandy e D. Spel. gloss v. jurata which if it were not so nothing is lost by it nor does it make any of these truths suspitious * Sup. 55. that so few of these Lawes are come to our hands of which something is said before and of their Book-Cases or Judgments none at all There never could be any such Volumes of them heard of as are fancied besides the honest simplicity of the first ages and the strictnesse of rules spoke of writings and deeds either to pass Lands or Priviledges were not in use till King VVithred neer 700. years after our Saviour that King being so illiterate that he could not write his name as himself confesses f Concil Sax. 198 King Aelfred little lesse then two hundred years after this complaines of the ignorance then that there were scarcely any on this side Humber who could understand the ordinary common prayers or translate a piece of Latine into English but in the beginning of his reign on the South of the Thames he remembred not a man who could have done it g Ibid. 379 Epist Aelfredi ad Walsagepiscep and although this King of sacred memory if perhaps as I cannot thinke he was not the Solon and Arthitect of our Saxon English order yet a great restorer of it built gloriously upon the frame he found yet these were lesse then beginnings would likely have been where such a Prince had been the Workman he could not intend them the Danes like a fatall whirlewinde tearing up root and branch every where ruining had long before broke into the Land which two hundred yeers together they miserably harassed with whom he fought fifty six battells and as may be imagined had not leisure to performe the duties of peace but in his armes sometime hid in the poore shed of an Herdsman as the most knowing Knight a King without a Kingdome a Prince without people so that hee could not thinke of his Lawes h Concil 378. and although there was some breathing and the storm had some intermission some calmes were in the two hundred yeeres some in his reign yet such ravage and spoil had these barbarous theeves made and so universall might the Confusions and Disorders be we may conceive it would be the labour of no short peace to restore things fallen or shaken to their first condition without making any the least progression this being not to be done till the corruptions which warre licentiousnesse and carelesse negligence have bred in the parts most sound are plucked up and the weeds throwne out which must be the worke of time The proceedings too of the Saxons our Ancestors as M. Lambard in judgement was de plane and without solennity enough to cleare this though the Saxon Lawes then were enough for the Commonwealth yet they had no great extent whatsoever unto S. Edward gathered out of the Lawes of those who followed this King and saw more quiet dayes or out of the whole body of the Saxon Lawes could not reach farre but not out of any defect in the Law it selfe then the cause why the law runs in a larger channell and spreads into more veines now is not any artifice or injust dealing of those who practice it but the improvement of estates by good husbandry much traffique whence contracts are more frequent As Sir John Davies there is more Luxury and excesse in the world more force deceit and oppression more covetousnesse and malice breach of peace and trust which as they gather strength and multiply so must the laws there is a necessity that as these mischiefs increase there should be supplements of laws to meet with them Mr. Daniel observes of the Assize of Clarendon long after the Saxons that it consisted as it does of very few points and that the multitude of actions which followed in succeeding times grew out of new transgressions c. When the Romans were little better then shepheards and herdsmen it is said a few Ivory tables contained their laws after they came to be Lords of the world thousands of Books were writ of the Romans Civil Law Albericus Gentilis justly reprehends Ludovicus Vives who maintained as he that all things might be finished by a few laws as the same Mr. Lambard speaking of the Law of England positive or written Law neither is nor can be made such a perfect rule as that a man may thereby truly squâ—e out justice in al cases which may happen for written lawes must needs be made in generality and grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particularity which experience and time doth beget i Archeior 76 77. There is a curse of peace the highest prosperity has its dangers there can be no safety in it the rich man is more infirm more unsound then the poore pride and malicious contention are diseases he is seldom free from it is well said of wicked men and their injustice there is need of many laws to bridle them of many Officers to execute of many lawyers to interpret those laws We know all laws come not in by heaps but as time corrupts things and new wrongs and offences are discovered by the same degrees Thus the Sumptuary laws amongst the Romans came in the Fabian of Plagiaries the Julian of publike or private force de ambitu and the rest all our Statute laws which are remedying So must it be and so it has been in all Commonwealths of
who would have Law to rule the City seem as if they would have God and the Laws to rule but those who would have man to rule give the command to a beast Not that he condemns Magistracy which he often much magnifies but that he would not attribute all things to men By Law is understood natural Reason divinely infused upon which is framed a certain form of living By man humane Authority Such is my will my pleasure my affection are words might become Ket's Camp and his company of Governours They would sound horribly in a Judges mouth Therefore Rinalde protests in Machiavel That he would not esteem it worth much to live in that City where men were of more power then the Lawes Bragging of our own subtleties and contrivances is nothing to the purpose to make this invalid too often we have our ends and designes in them which the Law doe's not allow and hence grows our distaste how often has the case of perpetuities been over ruled it being against God and Nature that things here should continue without change where the change is just and against reason that an estate should continue in one family to the worlds end in such manner that no owner at any time could either advance his younger issues or pay debts out of it but that those of the descendents capable never so disobedient and unnatural should take all yet as if every man might make Lawes for his own patrimony how lawlesse soever and exploded this perversnesse will not be given over although according to the rule of that Reverend Chief Justice upon this case Mens Policies are to be fitted to the Lawes not the Lawes to their Policies s Sir Hen. Hub. 134. This writhing the Lawes * Pigh controv Ratis l. 3. as the Papists deal with the Scriptures which they make a nose of wax is an impiety which Livies remembers with the neglect of the Gods next it t lib. 2 A most reverend Bishop tells a Roman Adversary as ill satisfied with our Lawes as this State which made them was with the Treasons of his Order That he is unworthy to be indured in a Commonwealth held with Lawes who departeth from them u Tort. Tort. 145. We read That is lawfull which the Law of the twelve Tables and the Iulian Law permitteth w Wel. 7. si paciscat Dr c. li. 1. D. de Just jur and in the same Civill Law we say That is lawfull which by the Laws the custome of our Ancestors and institutions is allowed Every thing we may or can doe is not lawfull x Cicero Philip. 13. in which sence Vlpian interprets that clause of the Edict Quod eius Licebit And againe that is lawfull which is permitted by the Lawes to which is opposed unlawfull and that is unlawfully done which is done against the Lawes Customes c. y de legat l. 3. Although the Romans as the Spartanes from whom they are borrowers had their Customes unwritten which was Law approved onely by use Quibus saepenumero saies a Civilian Gliscentibae perniciosissime Lacones errabant z Lexic Ju. Ciu. tit Lex Yet to the end that neither favour nor hatred might approach the tribunall nor judgement be left to the arbitrary will of man and that the Lawes might be made certain and notorious the greatest part of the Roman Lawes were written that no one as is said might doe and undoe binde and loose at his pleasure because of humane frailty all men being liers it is not safe to trust the Magistrate without a written rule as another a ibid. The Jewish Lawes of the Decalogue by Gods coÌ„mand were written the Lawes of the Athenians were written by which they are said to excell those of Sparta b ibid. The Republique commends highly the publishing the twelue Tables then as that the Magistrates were constrained to governe the Subjects following these Lawes so that Equity and arbitrarines had not any place c Bod. de la Rep. Liure fixieme Charendos chosen the Lawgiver of those of old Sybaris or new Thurium in Lucania now Bafilicata chosen so Diodorus to prescribe them the manner how to live having diligently looked over the Laws of other Nations and digested the best into one body commands in no sort to dipart from the words of the Law or from the writing à legis scripto d Biblioth Li. xii his reason is from the absurditie that private men should meddle for this he reserves to the supream power though things be amisse He speakes not more to Magistrates in his prohibition then to any others but generally nor of equity both which Bodin would seeme to prove by this place e Republ. L. sixieme And although in a Court proper a Judge of Equitie is to be allowed yet if it were allowed to all other Courts to expound the Law against the Letter perhaps meaning of the maker according to conscience as wâ— speak Equitie would as more plausible be every where cryed up like Caesars consulship the Law suspected in every case as unjust in time being lost in opinion would weare out and fall insensibly as uselesse and in all Courts there would be nothing but equity left which aequum bonum or equity is in plaine termes nothing else but absolute and arbitrary power King Francis the first of France having subdued Savoy and driven out Charles the second the Duke the new Magistrates substituted by him gave judgement according to equity and often against the Customes and Law written the Estates of the Country were quickly wearie of this equity they could finde no justice in it and therefore Petition the King That those Judges might no more judge according to equity which was nothing else as the reporter but to tie them to fasten them to the Lawes without any variation ny sa ny la neither here nor there a thing quite contrary to the passions saies Bodin of favourable Judges f Vbi supra The mischiefes and oppressures done by Empsâ—n and Dudley are imputed to the Statute of King Henry the seventh authorising to hear c. offences committed against poenall Statutes c. According to discretion not according to Law and Custome of England which the Lord Cooke seemes to dislike g 4. Just c. l. p. 40. yet which is the same discretion is so he thus to be described To discerne by Law what is Iustice h ibid 41. When a Jurie doubting the Law has found the speciall matter the entrie is and upon the whole matter c. They pray the discretion of the Judges or the advice and discretion of the Justices in the premisses c. The Statute 3. of King Henry the eight of Sewers allowes to make Statutes according to their owne wisedome and discretions c. which words are to be to be intended and interpreted according to Law and Justice i r. w. Kighleys c. It was
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
resolved by all the Judges of the Court of Common Pleas where a new Court was erected as in the 31. of King Henry the eight To heare and determine according to Law and Custome c. or otherwise according to their sound discretions That clause was against Law k 6. Jac. B. C. 4. Jnsti 245. Miser scrauitus ubi jus vagum c. Where Lawes are written the Magistrate knows what to command the people to obey where it is otherwise the Law must necessarily be Law errant wandering uncertaine unknown which is a miserable nay the most miserable slavery and become nothing but shadow and name Cicero makes it Justice to obey Lawes l de leg 1. Vlpian will have Antiquitie to be instead of a law or as a law instead of a constitution instead of consent m Dictum l. 1. sec ult de aquae pluae arcend Plinie Secundus writing to Trajane as the manner was when the case exceeded the termes of equity resulting from the law to have recourse to the Emperour for advice upon the Honourary usually given by the Buleutae or Decurions at their admittance into the Court. The Emperour answers him out of his religious as I may call it observation of the law Whether all the Decurions chosen for every City of Bithynia should give it or no generally he could not set downe But saith he what I thinke to be most safe is to follow the law of every City n Lib. 10. Epist 13.14 To Plinie next question whether the Censours might choose into the Senate of one City Citizens of other Cities yet of the same Province The Emperour writes backe o Ibid. Epist 116. The authority of the law and long custome usurped against the law might draw thee divers waies This temper pleaseth me that for what is past we innovate in nothing but that the Citizens of what Cities soever although against the law taken in continue but for the time to come the Pompeian law be observed Bracton with us would have that which use hath approved to be law The Statute of Merton saies of the lawes of England Hitherto used and approved The Court in the Lord Cooke uses that of the Emperours Honorius and Arcadius The usage or manner of most faithfull antiquity is to be kept p Rep. 4. Epist 78. there is the edict in Suetonius recited * This Edict was against the Rethoricians by the Censours Gell. l. 15. c. 11. vide Sueton. de Retor Those things which are done besides the manner and custome of our forefathers neither please nor seem right But to make it more visible that antiquity ought to beget a reverence toward lawes Let all Histories be searched you will meete with them wheresoever you finde men civilized Nay this as it showeth the antiquity beyond all exception so it makes the necessity of law apparent That notwithstanding the often intercourse of angels and the daily and continuall messages by Prophets the watchmen of the Iewes the great wisdome did not thinke it fit to leave them without lawes writ with the divine singer and published by God himselfe in which as well as in their circumcision and rites of religion they were preferred as in another glorious prerogative before all other nations It is observed before the law of God there is no mention of law nor in any before Moses nor in Orpheus and Homer since the Greekes long after borrowed many things from the lawes of Moses as the Romans again from them ten of their tables the other themselves added who could scarcely live twenty yeeres without a certaine law q Li. 2. sec ex actis deinde legibus de orig jur Solon cotemporary with Craesus and Gyrus is said to be the borrower and Diodorus Siculus the authority vouched r Lexi ju civ lit Lex who names Moses Å¿ l. 2. c. 5. but not as if hee knew him much he speakes of his lawes which saies he he pretended to be given by Abiao Jao as the Greek whom they call God he tels us Solon travelled for the lawes of his Common-wealth nay and the most renowned of Greece for wisdome and learning as Orpheus Musaeus Daedalus Homer Lycurgus Piato and Pythagoras but into Egypt t Li. 2. c. 6. and again Lycurgus Plato and Solon brought many lawes taken from the Egyptians to their Common-wealths by the most ancient friendship and mutuall traffick betwixt the Athenians the most ancient of the Ionians and the Phaenicians from whom Linus and Orpheus are said to have received much u Vid. Grot. Annot. in lib. de verit 23.38 Nay by the affinity betwixt the Ionians Phaenicians from whom the Ionians had their letters as the others theirs from the Iewes whose tongue and dialect was the same with the old Hebrew w Voss Gâ—ammat l. 1. c. 10. Grot. dc ver annot 15.16 besides there might be Proselytes amongst these Phaenicians nay some intermixture of Iewes especially neer Sidon and Tyre The Greeks might easily come to the knowledge of many things in the Iewish laws as Herodotus x In Terpsichore 135. The Phaenicians who came with Cadmus into Baeotia brought into Greece much learning as also letters the Ionians having learnt those letters of the Phaenicians used them with a little change I have seen saies the Historian at Thebes of Baeotia in the Temple of Ismenius Apollo Cadmean letters cut in certain Tripodes very like the Ionians The Egyptians had their learning from the Patriarchs after Noah chiefly from Abraham Joseph Moses c. who conversed with them as their posterity did after y Vid. Mentac Eccles c. 3. Before Ptolomy Philadelphus and the translation by the Septuagint it is reported that Theopompus an Historian inserted something of the sacred Scriptures into his story for which he was distracted and continued so till it was spunged out z Vt. Euseb de pâ—aepar Evang. c. 5. Hesiâ—d in Theogon Ovid. Anâ—xagor as Epicharm Plutarch The Greekes and the Romans in imitation of them writ plainly of the chaos creation of God whom they called the supreme mind or divine understanding that all things were made by his word nay and of the Dove sent out of the Arke a V. Grot. ib. sup in li. 1. more directly to the purpose whence the Greekes had their Laws The most ancient Attick Lawes had their originall from the Lawes of Moses as appears by the Law of killing the night-Theefe b Gell. l. 20 c. 1. By that of the Heires Females Thus in Terence his Phormio * Act. 1. Seac 2. Exo. 21.24 Levit. 24.19 20. de Talione in Tabvlis Lex est ut srbae qui qui sint genere proximi Iis nubant Et illos ducere eadem haec lex jubet He that will search for it saies Grotius shall find more as the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the Feast of the Tabernacles that that the High Priest should marrie only
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 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
Saxon Fathers who beat the Brittaines or Welsh out of their owne inheritance into the parts they now inhabit must be supposed farther which is strange to rob them of their Lawes as men who had not wit nor reason to keep peaceably what they had gotten without the helpe of their policie and order whom they had overcome Caesar if he did but first show Brittannie to the world did that as Eutropius i L. 6. He made the Brittaines tributary to the Romans whose name was unknown to them before as Strabo twice he was victorious and returned with Hostages a great number of Slaves and much prey k L. 4. Brittanny was not known to be an Island till the comming of Julius Agricola Proprator hither l 39.66 as Suetonious of Caesar aggressus Britannos ignototantea none of these commend their Civilitie none of them mention their Laws Herodianus in severe They went naked according to the cuts in M. Speed their skins painted whence they had their name in the shape of all sorts of creatures and gashed ignorant of gardens and of tillage m Strabo ubi sup Inoulti omnes saies Mela whom no long peace saies Tacitus since Claudius who was here in person disarmed them about 150 yeares after Caesar had softned like the Gaules but more simple and barbarous Woods were their Cities their Cattle and themselves lodged under one roofe n Strabo ubi supra Heredian who writes thus of the Brittaines lived and wrote probably 240 yeares at least after the Incarnation and about 50 yeares after King Lucius or more So that it would be very strange that such lawes as ours which yeeld not to the best in Christendome for goodnesse should have such a Cradle It would be inquired what lawes the wild Rovers of Laboradora or Cafariae have set forth as little civilized and living much after the rate It is scarce possible too out of Tacitus that there could be any Common Law amongst them heretofore saies he they were governed by Kings now they are drawne by petty Princes into partialities and factions c. they have no common counsel together seldome it chanceth that two or three States meet and concurre to repulse the common danger o Invi ta Jul. Agri. The first Lawes we find here in use were the Civill Lawes of Rome imposed upon the people as the Romans imposed their power And had that Epistle of Eleutherius the Bishop of Rome unheard of till 1000. yeeres after Eleutherius to Lucius or Liever Maur been no forged piece which not onely in the unhappinesse of the Synchronisme or mistake in the yeares of our Saviour not agreeing with the Pontificate of Eleutherius but by Manutenere a Norman-Latine word used in it and since crept into our Law it is convinced to bee p D. Hen. Spelm Concil 35.36 yet what needs King Lucius to send for the Imperiall Roman Lawes which were setled here before and no question onely in use here then Liever Maur being no free King nor of the whole but of the Joeni alone called after the Kingdome of the Eastangles now Norfolk and Suffolke meerly a Substitute of the Lords of Rome like a Tetrarch if so much ever fettered in those chains they had put upon him From the time of Claudius the Emperor who subdued neere all Britaine the Roman Lawes prevailed even amongst the Brigantes those of Yorkeshire North at Yorke another way amongst the Silures or those of Caer Vske in Munmouthshire and amongst the Cornavii at Deva Caer Leon Vaur now Chester in all the Colonies were set up the Roman Courts and Tribunals About an hundred years before Liever-Maur Tacitus relating what happened in the Colony of Camolodunum amongst the Trinobantes now Maldon in Essex under Suetonius Paulinus sayes Strange noyses were heard in the Courts q Ann. l. 4. as Dio. In the Court was heard a barbarous murmure with much laughter r Die l. 62. and Eutropius sayes a strange Colony is brought to Camolodunum with aband of veterane souldiers to be an aid against the rebellious and imbue the confederates to the offices or duties of the Lawes Severus before his more Northern expedition Camd. Bâ—it 338. has the same words as Herodian relates left his younger son Geta in the part of the Isle subject to the Romans Juridicundo rebusque civilibus ut praeâ—sset as it is translated Å¿ Hâ—â—od l. 3. that he might look after the businesse of the Lawes of Justice and the civill affairs After the death of Liever Maur so famous was that Tribunall of the Romans at Yorke that Papinian the most renowned Civilian of his owne or many ages sate Judge there There did the Emperor Severus and Antonine set forth the Imperiall Constitution called De rerum venditione t Cod. l. 3. tit 32 as the most knowing Knight has observed u D Spelm. ubi sup Agricola as Tacitus in his life tooke the noble mens sons and instructed them in the liberall Sciences preferring the wits of the Britains before the Students of the Gaules as being now curious to attain the eloquence of the Romane language whereas they lately rejected the speech a likenesse of our Lawes with those of the Britaines is indeavoured to be proved by that onely place in Caesars Commentaries w L. 6. where it is said but of the other Gauls not of the Druydes whose imployment was about things divine x Ibid. sacrifices publike and private and who were interpreters of Religion whose Discipline as there was found in Britanny That if the wife be found guilty of the death of her husband she was burnt as in our petty Treason Caesars words are The husbands amongst the Gaules which is no part of the Druyds Discipline from whomsoever derived have the power of life and death over their wives which is not Common Law and when the Father of an illustrious Family not any Gaule dies his kinsmen meet and if there be any suspition of the death inqurie into it c. and if it bee found kill the wife excruciated with fire and all torments Caesar where he speaks of the Britains shewes strange marriages y Lib. 5. Ten or twelve of them sayes hee have commune wives amongst them especially brothers with brothers and parents with their children But many hundreds of years since all this the Britains were very barbarous and rude so that hee who shall read the Lawes of Hoel Dha or the good z In Sr. H. Spel. Councells neare one thousand years since Caesar will have little reason to think our Common Law ran from any such fountaine and it seems the old Lawes and Customes of this people were far worse and more rude yet all which lawes and uses as the Proaeme at Guyn upon Taff yn deeued or at Twy guyn artaff he abolished a Gloss D. Spelm. tit lex Hoel c. è Proaem legum and gave new laws to his Britains from
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
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
are to doe even law and execution of right d 20 E. 3. c. 1. The supreme of these Benches after this alteration dealt in pleas criminall called placita Coronae in the books e 4 Inst 71 Stamp Pleas of the crown examined and corrected errors misdemeanors and offences against the peace granted the Habeas corpus and upon return of the cause relieved prisoners held pleas by Bill for debt detinue covenant promise of all personall actions of ejectione firmae and the like against any in the custody of the Marshall or any Officer of the Court who may implead others in those actions of all trespasses with force and armes of Repleviuâ— Quare imâ—â—dit c. of Assise of Novel disseisin These Justices are the soveraign Justices of Oyer and Terminer of Gaole delivery and conservators of the peace c f 4 Inst c. 7. This Bench may grant prohibitions to all other Courts to keep them in their bounds The Chancery as before supplies the wants and relieves against the rigour of the Law in its extraordinary juâ—isdiction The Ordinary held pleas of sâ—ire facias to repeale the Kings Letters patents of Petitions monstrance of right Traverses of offices of partitions there of scire fac upon recognizances there Writs of Audita querela and scire fac ' in the nature of it to avoid executions there endowment might be there by the Writ de dote assignands upon offices found execution upon the Statute staple or recognisance in nature of it upon the 23 of Hen. the 8. Personal actions might be brought there by or against an Officer or minister of the Court it is the officina justitiae hence all Writs issue it grants the Habeas Corpus out of Term g Ibid. c. 8. In the Court of Common pleas or commune bench all real actions are determined and all common pleas mixt and personal Besides the Stationary Courts at Westminster there were the Justices in Eyre the sitinerant Justices Charles the bald in the yeere 853. divided France into twelve parts and over every of the parts placed men famous for Religion and Law who yeerly travelling their own Divisions took cognisance of wrongs done betwixt party and party and of the publique offences according to justice By which pattern King Hen. the 2. of England in the yeer 1176. divided this Kingdom into six parts over every of which he appointed three Justices yeerly to goe their Circuits h Hoved. 548. M. VVestm l. 2.39 though I know not why this institution is made more ancient by others These were followed by the Justices of Assize since in being by whom they are swallowed up their circuits are twice the yeere and at certaine times having the power of Gaol-delivery added with the authority of the Justices of Nisi prius annexed also the inquiry and determinations of many things else given by latter Statutes and by another Commission of Oyer and terminer the power to deale with Treasons Murders Felonies and all misdemeanours whatsoever they have one other Commission of the peace in the Counties of their circuits by vertue of all which together they sit More perhaps cannot be devised for the ease of the people Thus is justice brought to their own dores the same thing with a fixed standing Court and as it may chance more safe The lesse the Judge is known in the Countrey the lesse is the danger of siding or biassing I speak not this as if I had more feares then other men or were for any of the new jealousies these are the feares of severall of our Parliaments There is aprohibition in two Statutes That no man of the Law shall be from henceforth Justice of Assises or of the common deliverance of Gaoles in his own Countrey i 8 R. 2. c. 2. 13 H. 4. c. 2. and a third Statute of confirmation is more full it sayes That whereas it is enacted that no man learned in the Lawes of this Realm should c. be Justice of Assise in the Country where he dwelleth since divers men learned in the Lawes c. have by their means and policy and for their own commodity c. obtained to be Justices of Assises in the Countries and Counties where they were born or were inhabiting whereby some jealousies of their affection and favour to their kinsmen alliance and friends c. hath been conceived and had c. enacted c. that no Justice c. use nor exercise c. as before k 33 H. 8. c. 24. Upon such like reason is there another Statute enacting to this purpose that no Lord or other in the Countrey sit upon the Bench with the Justices of Assise l 10 R. 2. And as nothing humane I might say divine too fathered somewhere as high as upon Lycurgus his Apollo or the whispers of a Numa and his Eugeria where Gods might be fancied to descend for the production and caelestiall wisdom to flow into it never so excellently contrived can please all men so perhaps whatsoever production shall or can be it may have if not its mischiefes and inconveniences yet some failings incident to the imperfections of man in it selfe and by corruptions from without their grace and flourish may be but short nothing is so incertain in the taking as new Lawes much must be ventured much committed to fortune and if according to the Saxon form which is shewn is not yet extinguishd and what is lost in jurisdiction or rather in use in the lower Courts is supplyed as is shewn too by a way if not better yet equal to it standing Courts were every where and what is more daily open at the Countreymans doore This would not perhaps so much ease the honest just man ever upon the defensive who ever sues but for his peace and the quiet preservation of his own right as it would multiply vexatious prosecutions some the greater number and the worst men composed of malice and contention would be incouraged by it to molest others the trouble and expence being so little and the way to imbroyle so ready and neere there would be nothing but complaints the Law and its remedies would quickly he abused they would be as great a plague as some men who onely say so would have them imagined to be actions would fly thick and swarm so fast one yeere would bring forth Volumes more swelling then all the Annals now read and if every man might be the patron of his own Cause often his in justice nothing would be wanting to make the confusion periect all decency and respect would be forgotten for which nothing would be had but prodigious noise and rude tumults Farther those who now are kept off by the conscientiousnesse of the knowing Lawyer who has made a discovery into the injustice of the cause and oftentimes restreines the heady client to run on would presently be at the shock fall into the danger of a trial which being blinded with their own fury their malice onely
too much or too little That of dissection and partition of the debtors body being bankrupt he charges as most cruel and horrible The words are AERIS CONFESSI REBVS Q. JVRE JVDICATIS TRIGINTA DIES JVSTI SVNTO POST DEINDE MANVS INJECTIO ESTO IN. JVS DVCTIO NI JVDICATVM AVT. QVI. ENDO EO IN JVRE VINDICIT SECVM DVCITO VINCTIO AVT. NERVO AVT COMPEDIBVS QVINDECIM PONDO NE. MINORE AVT. SI VOLET MAIORE VIN ITO SI VOLET SVO VIVITO NI SVO VIVIT QVIEM VINCTVM HABEBIT LIBRAS FARRIS IN DIES DATâ— SI VOLET PLVS D ATO TERTIIS NVNDINIS PARTIS SECANTO SI PLVS MINVSVE SECVERVNT SE. FRAVDE ESTO This which willes where there is morbus or aevitas fickness or age that the party appear before the Praetor jumento vectus which he abhors as a new face of a funeral It saies SI IN. JVS VOCAT SI MORBVS AEVITAS VE VITIVM ESSET QVI IN. JVS VOCABIT JVMEN TVM DATO SI NOLET ARCERAM NE. STERNITO These are all his exceptions and for these as it may seem in his words There are things in the Laws most obscure some hard some gentle and remisse Sexius Caecilius as Gellius famous for his knowledge and use in the discipline of the Laws of the Romans and for interpreting of them answers for them Thus. The obscurities are not to be ascribed to the fault of the Writers but to the ignorance of those who cannot reach them long age weares out both words and ancient manners in which the sense of the laws are comprized he tels him the tables were composed three hundred yeeres after the building of Rome 700 yeeres or little lesse before their times he defires the Philosopher to give over the endeavour of defending and opposing what he listed To consider more gravely what the things are he reprehends to leave a while the Acad my with its disputations He tels him that the sicknesse named in the last Law for there he begins was no grievous sicknesse such as might make it inhumane to cite any man Morbus sonticus is the Law term to expresse that That jumentum is not a beast but a carriage here and that without this carrying to the place by law the party summoned might make an everlasting essoine He sayes in the first law of injuries onely lighter injuries were meant besides the AS anciently was a pound weight for greater injuries the Talio was used which he grants could seldome and hardly be done according to the words and meaning of the Law but he sayes in that The decemviri intended chiefly to restraine violence by fear Nor did they think so much consideration was to be had of him who had maimed or broke any member of another and would not agree with him to redeem the Talio where he had his election as to make it materiall whether the hurt was wilfully done or not or whether there were that exact justice and equality in the Talio which is required by our Philosopher And how can it seem cruel saies he That that should be done to thee which thou hast done to another For the other of the creditor cut in pieces he givs these reasons The Romans so he esteemed nothing so venerable as the Publique and private faith also in contracts as well as other duties in the use and commerce of money lent They thought this help of temporary want which the common life of all men stands in need of some time would not be had if the perfidiousnesse of debtors might deceive without some grievous penalty which went by these steps after judgement the debtour had 30 daies allowed him to procure the money if he paid it not he was delivered by the Pretor to the Creditor c. yet might he redeem himselfe within 60 daies after three of the great markets he paid the score with his life c. The creditors if more then one being permitted to cut the body into pieces a punishment denounced with the intent never to come to it that no man should suffer it Necessary for terrour sake because wicked men contemn addiction and bonds yet never as he in his knowledge put in execution Can any man imagine saith he that we should see so many as now we doe lye in giving their testimony if the judgement in the twelve Tables were not antiquated That the convict of this crime should be thrown headlong from the Tarpeian rock The sharpnesse of avenging offences is the discipline of living well and warily These things saies Gellius did Sexâ—us Caecilius discourse all that were present and Favorinus himselfe approving and praising him d Gell. l. 20. c. 1. He that dotes not too much on his own great parts that is not too much an admirer of himselfe will not think the law an easie study that its height can be taken at a distance oftentimes in other learning we goe about till we meet a choise author and one such as he may be may serve the turn It is not so here where many year-books many book cases and judgements not extrajudiciall opinions and conjectures of private men too frequent every where else severall Statutes with the common customes make but one body and are all to be read and known whose bulk as it is not so ample to weaken the firmnesse or soundnesse of the constitution or make the symmetry of the parts lesse admirable yet cannot it be subject to the carelesnesse of the first fight and let the eye be never so stedfastly fixed I know not who can judge the Architecture of the Escurial by one piece or perhaps upon the ascent of the first staire The most knowing Sir Henry Spelman saies of our law that it is perpetuis humeris sustinenda it requires the whole man revelation is of litle use here Those who are really what they seem and more may say as Aristotle does of all men The greatest part of the things we know is the least of those we know not But we are told of such as are not thought so onely but are wonders of men who have the world of knowledge within them living walking libraries men of strange parts It is reported of Lodovico Pontano of Spalato that he could not onely recite not onely the titles of the lawes but also the whole body yet he dyed in the thirtieth yeer of his age Of Suaerez that he could cite any place of St. Augustine in the very words of that father Of Abulensis Hic stupor est mundi qui scibile discutit omne Of the Earles of Mirandula of the Scaligers we are told admirable things of Ioseph that he could be asked nothing which he was not able presently to give satisfaction in besides the tongues the Nubian too which he was most excellent in he had left they say no Science no Discipline untouched Of others that they knew as much of the Civil Law as the great Civilians yet could not be ehought to have leasure to salute it a far off
Zeale Sanctity Truth Glory Law Justice Peace Honour Nature c. with infinit others in the Saxon. The Saxon hath words for Vnity Deity c. for co-equal co-eternal invisible incomprehensible incarnation ascension descension for Catholick and all such words saies Mr. Lisle which we are now faine to use because we have forgot better of our owne which is much c Sax. Menpres The ten Commandements Lords Prayer and Apostles Creed are not beholding for one word nor the Nicene Creed both Creeds retaine Christ and one has Apostolican not out of any want for they have words of their owne which signifie the same things ge gmired is used for Christ and Aerenrdac is Nuncius Apostolus a Messenger but because the generall custome of keeping these two and commune use have made them as names not well to be changed If wee looke upon the translations of these in any other language we shall not easily finde the like The Saxon Bookes sometimes take in the Latin but when it happens seldome without necessity as being to expresse such things as were neither knowne nor in use amongst the English Saxons antiently as Sacerd a Priest Sealme a Psalme Calic a Calice Ele Oyle Win Wine Fic a Fig Ymnan an Hymne Leo a Lion Draca a Dragon c. in such cases where it is lawfull to infranchise Forraine words though * V. Scalig. Excerc 294 297. 307. barbarout The tables compared with the latter Latin will make it appeare our Language alone has not changed and that the termes of other antient Lawes are more obscure then ours As Polybius the best antiquaries could very hardly understand the articles of the first League betwixt the Romans and Carthaginians d L. 3. I have interpreted them so he as diligently as I could The Duilian beaked pillar at Rome to be seen to this day as Mr. Brerewood in the Capitoll in memoriall of the annuall Victory got against those of Carthage in the first Paenic Warre about 150 yeares before Cicero may be wondered at where the e. is used for an i. the c. for g. the o. for u. xf. for ff s. is added superfluously in the middest d. in the end of word s. and m. left out c. as navaled for navali Triresmos for Triremes Exsociont for Effugiunt Leciones for Legiones Cepet for Cepit Pucnandod for Pugnando Claseis for Classes Numei for Nummi there may be true Reliques at Rome however of the Roman antiquities and this may be one of them I will not suspect it yet this is certaine The Lawes of the Tables the Fragments of them which now are to be met with hundreds of yeares more antient come neerer to the purity of the best Latin by much somewhere there may be found an obsolete terme but the stile is farre from this rudenesse and Grammaticall enough and I cannot tell whether the Roman speech at the time of the first Paenic Warre not much more then 150. years before Cicero could be bad C. Navius one of the most antient Roman Poets * Gell. l. 17. c. 21. a Comicas vareo stipendia fecit served in this Warre in the 8. yeare of the Peace after this first Warre and in the year 521. of the City he presented his playes before the people * See the verses ut on Scipio Gell. l. 6. c. 18. Sae the speeches c. of Cote Scipio c. and others then His Epitaph made by himselfe speakes thus Mortalis immortalis si flere foret fas Flerent divae Camaenae Naeviom poetam Itaque postquam est orchino traditus thesauro Oblitei sunt Romae loquier letina lingua To omit Plautus Ennius Caecilius neere those times the most excellent of all Comedians Terence within 30 yeers of this or thereabouts is famous and if the pillar speaks true here is the suddenest change of a Language that ever was heard of We finde the saying to hold still Verberum vetus interit aetas Cadent Quae nunc sunt in bonore vocabula volet usus But though words die and yield to use which first got them credit which has the dominion over them s yet where things remain and live words cannot be left by which they are signified for besides that after a change of termes the old yeer bookes would be as hard to be understood as the older Latine It may very well be thought the new termes might come short of the former and not expresse with halse that fulnesse what they shall be intended for the termes of all sciences as is observed perhaps could not so effectually expresse the full sense of the matter in the purer Latine if that alone wil be liked Dr. â—owel a most learned Civilian in the preface to his Latine Institutions of the Common law gives this reason why he observed strictly the forms of expression in it I use saith he the words of the Lawyers lest being carried away with the conceit of polishing or the endeavour to deliver things more eloquently I should not reach the whole sense certain words are so fitted so he still 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the shape or figure of the Law of England that they are terms of art and prescript formes plainly and otherwise expressed would lose their native integrity his example is in making or waging of Law e Prefat Some of them are of necessity to be used as the words Mayhem Burglary Feloniously Murdered Ravished Exchange Warranty Frankalmoigne Frank marriage c. and cannot be expressed by a way about by periphrasis No others never so soft and smooth can serve the turn and who wil take the paines either from the Glossaries or from the Saxon it selfe to be acquainted with them wil finde them as significant as any words of art in the Greek or any other Language the Law lies in their force and propriety they wil finde the learning of a particular Law unfolded and understood in the term Affidare Placita Placitare Nuda pactio contractus praescriptio are slum interesse executio executores certiorare alienatio with divers others may be met with in the Civil and Canon Lawes those which are not wholy used there in our sense differing but little Guardia guarantiso wadium Alovium Bannomentum Treuga Forisfacta Fidelitas homagium relevium felonia c. in the fendes and if calumniari be thought wrested where it is used to claime or challenge so farre that Dr. Cowel conceives it a blow given to Priscian never to be forgiven it is as much wrested in the proeme of the Institutions of Iustinian where calumniantium iniquitates is by the addition expounded calumniantium as it capitur generaliter pro omnib-delinquentib for all offenders a blow which Piscian must take more unkindly then the former The Law Imperial flowing from a Latine head professed by Orators patrons and advocates who spake no other language our law of the Land acknowledging nothing lesse then such a beginning as is said which wil be thought
great distraction in opinions Hence it is that Gentilis and Alciat require that the authorities and cases of the Doctors be weighed not numbred k Gentil l. 3. Epist Alciat l. 4. perarerg c. 17. Which is otherwise in our Law where the judgement of any man whatsoever is not of authority nor is any thing binding but the determination of Courts and the rule of judgements before Lawes are not causes of strife but the variety of senses which is put upon them we are told of a constitution of Pope Nicholas the third upon the rule of that Monster Francis of Assise in the argument ambiguous and doubtful enough yet did it never trouble the Order all Glossers and Commentators being forbidden to meddle with it l Concil Trid. 660. He that puts out the Imperial institutions sayes he has added the cases or Themes as they call them of Cornelius Vibulanus Having rejected the old as barbarous and uselesse and that he has cut off part of those Notes taken out of the Commentaries of the Doctors which are called small accessions because so he very many of them were partly wide of the marke nothing to the purpose partly absurd andridiculous Till of late there was never any glosse upon our Littleton and now that which is is made up out of the resolutions and judgements of Courts not as if Littleton needed any confirmation One of whose cases was acknowledged for Authentick by four Judge in the time of king James with this expression That they owed so great reverence to Littleton they would not suffer his case to be disputed or questioned m Mich. 21 Jac. B. C. The Civil Law hath its circumstances and exceptions the anomale before and in the contestation of the suit to the Fact of the intention of deceit fear c. temporary perpetual It s formulae or solemn forms by which let the matter of Fact be never so orderly related if either no conclusion or an unfit one be collected from it the whole libell falls Sometimes sayes a French Civilian of the Parliament of Paris a Proces is determined by contrary arrests differing from others preceding then which is pittiful this clause is added to the Text of the arrest Without drawing it to consequence or the motive I believe not alwayes is registred France sayes this Bodin again bas more laws and Customes more Proces and suits then the rest of Europe beside and more have been prosecuted in the last six score yeeres then in a thousand before which have througed in more and more as he goes on since that Charles the seventh and his successours have begun to people the realm with lawes made after the mode of Justinian with a long train of reasons against the forme of the antient Ordinances of the kings and sage Legislators he addes Where laws are few and simple rather commanding then intreating and reasoning Commonwealths have flourished to a wonder under them Whereas others with their Godes and Pandects in a few yeers have been destroyed or troubled with seditions or the mischiefs of Proces and wranglings immortal n Repul l. 1927 l 6. By the multitude of Authors and Doctors as the illustrious Viscount the law is torn in pieces the Judge astonished and the proceedings everlasting o Angm. Scient 691 We may see as this French man again enough of these suits aged one hundred yeers as that of the Earldome of Rais so well managed that the parties who made the entrance into it are all dead and the Proces yet alive Nor are the terms of the ancient laws of the Tables to us now who know not the propriety of the first Latin much more winning more graceful then ours Where they are certainly antient they will seeme as hard to the first sight as any and their sense as strange after as the sound of others As that Senates should be used for revolters reconciled reunited Fortes for good men never revolted p Tab. c. 49 Pauperies in the law Siquadrupes pauperiem fecerit c. Should signifie hurt or damage q c. 15. Proletarius a word which a Lawyer in Gellius takes to be of Grammer learning and when he was shown it in the tables is content to say he had not learned the Law of the Faunas and Aborigines a poor Roman whose rate in the publique valuation of good was 1500 Asses or one that did nothing for the publick but get children r Gel. l. 16. c. 10. Tab c. 44. A famous Grammarian being asked what those words out of the ancient Actions in jure manum conserunt sayes the tables ex jure manum consertum mean sayes he taught Grammer A way of suing they signifie which he had never heard of Å¿ v. Gell. L. xx c. 10. Godwin antiquit l. 3. c. 21. That retanda flumina in an old Edict should be rivers to be cleered of trees growing in the Channel or upon the banks and hanging over from retae such trees t Gell. 11. c. 17. This of the tables will appeare as strange as any thing QVI. SE. SI ERYT TEST ARIER LIBERI PENS VE FVERIT NI TESTIMONIVM FARIATVR IMARN BYS. INTE STABILIS QVE ESTO u Idd. 15. c. 13. A. Gellius in his ch where he asks the question upon manum consertum speaks thus of the learning of the laws and the termes I have thought fit to insert into my Commentaries whatsover I have learnd from the Lawyers and their bookes because he that lives in the midst of things and men ought not to be ignorant of the most famous words of civil actions Amongst the later terms which are proper and necessary for the sense they serve many of them would trouble much our over curious Sirs they would not willingly be brought to an acquaintance with them Such are Suitas The quality of the heir inducing a necessity of succession the definition of which has perplexed some of the Authors not a little yet no worse doubtlesse then the Haecceitas of the Metaphysicks as is confessed by them it is unheard of of old but say they in those things which by degrees are received and become of use we ought not too strictly to eye our selves to the Canons of the Grammarians Alciaet who is known to all the world often used the word superesse rebus Which is used for overseeing and managing anothers businesse more then Gellius ever knew or thought of where he blames another false and strange signification of the word which sayes he was inveterate and got strength not onely amongst the rabble but in the Courts it being ordinary to say bic illi superest for he is the Advocate of such one w l. 1. c. 22 neer the last sense Secta which is used for Reason interleverit for deleverit insidiare for insidiari infecta for corrupta honestus for dives which is a great depravation reformare for rescindere prodere for dimittere per aversionem emere which
the Law yet no where in it I think once naming our most reverend Judge Litleton He cals the Laws in just and the Lawyers or interpreters of them ignorant speaking of those of the time of William the 1. upon a supposition that the most of the Lawes were Normanne He and his book are said to be of great account by Dr. Cowel in as much esteem with the students of the Common law as Justinians Justitutes are with the Civilians saies the famous Clarencieux The Lord Coke sayes This is as absolute a booke and as free from errour as ever was writ of humane learning y Pres upon Littlet r. 2.67 r. 10. Epist according to the Judgement of a Court before Litletons word wil passe every where ipse dixit carries things as Master Fulbec Litleton is not the name of a Lawyer but of the Law it selfe more then can be said of any Civilian one or other Dr. Cowel blames his Civilians much that shey were not onely guests and strangers but infants in their own Commonwealth that the most know as little of our Law as the common people and I cannot imagine how by a sight of Litleton Hotoman should know much it is not unreasonable notwithstanding all his learning to suppose with Littleton alone he did not understand Litsleton it would be taken as justly it might either for foolishnesse or malice indeed the greatest possible for the highest impudence if any man so much a stranger to the terms and Language at the first sight meerly by guesse should as slightly condemne the Pandects full of contradictions and needing exposition and amendment as is before shewn out of the Civilians themselves whereas Littleton is as fundamentall as any Law can be and every sentence of his is a principle Nor can any man but wonder at the expression of malice and study to calumniate the book through by which we may see how it is understood being onely a bare collection of special cases under their titles or heads authentick and binding because it is made and composed partly of the customes of the ages before partly of the judgements of Courts and of the Statute lawes without any controversie with any man without any reflexion upon any other law upon any mans person or works saving that once he saies he had heard say There was one Judge Richel who setled an estate intaile with perpetuall remainders with that clause of perpetuities since used but against law that upon alienation of the eldest sonne c. his estate should cease c. meerly ayming at the publike good which makes me thinke here must either be a great mistake in the sense or of the book it selfe Litleton then was not Litleton now The uneven ruggednesse of the French wil not suffer any man to be eloquent Laws as Cicero ought to be be deare unto us and to be prised not for the words but for the publike profit and the wisdome of the Lawgiver Yet is not the stile of Litleton rude but plain as the best French then was plain enough neither neat nor quick as will appeare by the Lord of Argentons stile noted before who lived in our Judges age and writ then most befitting a Judge and the gravity of the subject To the absurdity of the writing part of the invective charged in the slander which is true as is shewn from testimonies of the side of the old glosses I wil reply but this it should have shewn how and where otherwise this is a generall charge which has nothing in it but the malignancy of an enemy from whose rash and unjust censure the happy memory of our Judge may justly appeale to those who know him It is a childish impotency of the mind out of vainglory to calumniate illustrious personages farre enough either from honesty or discretion The haughtinesse of Pompey to raigne alone is with the most nor is it fair to bequarrel and hate all other Nations because they drink not the Loire or Rosne or submit not to I know not what universality as if Alexanders world were returned again not to be ruled but by one Sun What concludes here and makes up the aggravation is extended farther by others and made a cavil it is no more against the Laws That our Laws want method Method never yet so much as a pretence to abolish laws How easily the Pandects may be matched for method I shall demonstrate by the order of the Common law of England After the Curiate laws of Romulus those of Numa concerning Religion the laws of the other Kings all taken into the books of Papyrius and therefore called the Civil Papyrian Laws the twelve Tables followed then the Flavian Helian and Hortensian the Honorary Law of the Praetor the lawes of the people called Plebiscita the decrees of the Senate called Senatusconsulta the law of the Magistrates and customes the laws of the Princes frō the law Royall the opinions of innumerable Lawyers many of which are recited by the second Law of the original of the Law their volumes were huge saies the Emperour z Proaem Instit 5. There were as the glosse three hundred thousand Verses Laws or answers two thousand books and many other Laws so confused so infinitely extended they were not to be shut up in the capaciousnesse of humane nature Out of all these were the Pandects composed and digested which are wel digested but as is said the Code and the Authenticks are not How much more easily might the Common law be ranged into an exact method may quickly be found not being composed of any such bulk not drawn out of any thousands of such answers and books inclosed in a dozen or two of small volumes exceeded in the quantity by the present Imperial lawes hundreds of times over the foundations of it as of all just and civil Lawes are the lawes of God of nature and reason and of Nations as Dr. Cowel Our Statutes and Customes are derived as all just laws else and consentaneous to reason from the Law of nature and of Nations a Inst jur Angl. 25. And again The lawes of England as others over the Christian world are far enough off from the civil Imperial law yet are they tempered seasoned with the equity of it b Praef. ad Inst In his Epistle dedicatory before the Institutions They are not far enough off * v. Chap. 2.50 here as very probably some of these Imperial lawes might come from Rome to the Saxons with their Religion There he speaks thus After I bad spent some yeeres in the comparison of these lawes viz. the Common and Imperial laws I found the same foundations in them both the same definitions and divisions of things rules plainly consentaneous neer the same constitutiom the difference onely being in the Ideome and method Our Common law is nothing but a mixture of the Roman and Feudal laws and in his Epistle to the Reader before his Interpreter he sayes He has in
some towardnesse collated the cases of both laws c. to shew that they both be raised of one foundation and differ more in language and terms then in substance and therefore were they reduced to one method as they easily saies he might they might be attained in a manner with one paines I make agreement no argument that lawes are the same where they have as t is said the same foundation but it may be an argument that where they agree in the foundation where the constitutions are neere the same where there are the same definitions and divisions of things they may be digested into a method alike Not to looke upon the twelve Tables we may finde a plain resemblance which I attribute to the foundation upon the Law of nature and Nations in these Lawes The Cornelian de sicariis veneficiis of murder poysoning firing houses de falso of forgery of all kinds of falsity Majestatis about taking arms raising forces c. the Cornelian de injuriis and Aquileian de damno of wrong trespasse damage battery done the Duilian Maenian de Coitionibus the Julian de vi of publike and private force Majestatis of high treason to which the Lutatian of publike force may be added in the digests and clswhere are Laws of discents rights and possession covenants and obligations against deceit in bargaines theft receivers breaking of prison c. of * Code 11. nou 3.5 Collet Churchmen and their possessions c. Besides saying it may be so to make it plain that persons and things propriety of lands and goods acquisition of these rights injuries and actions publike and private offences Writs Courts pleas c. may be listed in order in our Law as wel as any other This most learned Doctor in his Institutions has done it but briefly and according to the fashion of the Imperial Institutions Who saith he shall think himself happy if he can provoke any man to undertake the larger Volumes And Sir Henry Finch in his excellent book called the Law There is extant an Analysis of the Common law done by a reverend Atturney general heretofore where our Law is so naturally methodised and so happily that not onely no law else but no Science whatsoever can excell it for the order though I know want of method in Lawes is no solid objection nor so considerable as to need an answer The illustrious Viscount in his Aphorismes of the Law is of this judgement speaking of regeneration and new structure of Lawes he would have he sayes the words and text reteined and things orderly done Yet he addes in Laws neither stile nor description but authority and the Patron of it antiquity are to be regarded otherwise as he such a work would seem rather something of the Schooles and a method then a body of commanding Laws c Aphoris 62. Neither the Philosophers of old nor their admirers now are to be heeded in these things they may propose things specious but they are every where remote and farre off from use the onely notion our ancient Lawgivers and professors of the Laws intended The most of the Law is Historically related in Annals or yeer-books where the judgements of the Courts in the severall Terms of the yeers are reported as faithfully as they were given according to the true account of time as things fell out in which no method is requisite or can be more then in Histories where all things of the same kind are not ranged together but are set down as they were done And every Commentator must follow his text as he is lead But those who have writ of one certain subject not miscellanists have curiously enough observed this part And where the Annals of the Law which could not be otherwise as is said are thought to scatter things too carelesly The cases in them are abridged and digested under proper heads and titles By Statham Justice Fitzberbert and Sir Robert Brooke as the Statutes are by Justice Rastall c. so that there can be no reason for these complaints These objections onely shew a willingnesse to hurt but are short of doing it Principles of the lawes Lawes are to be tried and examined by their principles if there be any thing unsound there and dishonest too cruel and inhumane they may justly be taxed A Doctor of both the Lawes speaks thus of the Canon law The Canon law is nothing but an beap of ingenious precepts of avarice under the shew of piety few things in it are directed to religion and worship many are contrary and repugnant to them the rest are wranglings strife businesse onely of pride and gain fancies of Popes who have accumulated upon the Canons of the holy Fathers decrees chaff of the Extravagants deelaratories rules of the chancery giving those at Rome power to absolve from obedience break leagues dispence with oathes with the law of nature enough as he to make of the house of prayer a den of thieves d Van scient Here is something said for the sanctions of the sacred Law of the land may justly be said contrarily they commands all those things which are most honest and most just if there were no precept while some other Lawes allow directly the same things against God nature and reason which ours forbid as Incest among the Persians of the brother and sister was more then indifferent cōmunion of women praised by Plato e Repub. 4. amongst our families of love lending wives amongst the Spartanes Polygamie amongst the Mahumetanes and others with the unnaturall love of boyes which a Frenchman calls the ordure of the Greeks the bearded Philosophers approved it Plutarch censures not Agesilaus for it Adultery was commended by the example of their Gods Thieving among the sober Spartanes as Gellius cals them and Aegyptians and sleight of the hand from the greenest youth was honourably allowed by the Lawes of Licurgus not for base gaine but for discipline of warre as he all their policy was directed to the wars Piracy and robbery have been glorious no where heretofore amongst the Grecians in disgrace saies Thucydides This is manifest by some that dwell on the continent saies he amongst whom so it be performed nobly it is still esteemed as an ornament The ancient Poets introduce men questioning such as sail by on all coasts alike whether they be thieves or no as a thing neither scorned by those who were asked nor upbraided by those who would know much of Greece uses that old custom as the Locriozolae the Acarnanians and those of the Continent in that quarter to this day f Thucyd. l. 4 v. Justinum l. 44. Private robbery the Romans suffered not but publikely no men robbed more so that as one of their own if they had restored what they unjustly took away from others they must every man have returned to his Cotage again revenging of wrongs and feudes are much esteemed by Aristotle and Cicero exposing of infants slaves freed or sick men
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
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