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 old Greece or Rome more renowned for Philosophy or valour then for this piety it is notorious how false that charge of breach of the Laws against Socrates was They who sentenced him erected a Socrates in brasse in the most famous place of the City a piece of Lysippus his workmanship p Diog. lac Here though Caesar had won the field Caeto was the Conquerour and might well say He had ever been more puissant then Caesar in right and justice q Plut in catone utic Plut in A. ristid 623. and that his life was invincible For this reason had Aristides that most illustrious title the just a title given to that late victorious King Lewis the 13 of France if titles are specious from subdued Nations as from Crete Numidis Africa Asia Dacia c. How more illustrious is that by which is signifyed not the Conquest of men but of injustice of that which is the enemy of men every where Bastards as Cardan would have it are not therefore wicked but such says the illustrious Scaliger which goe false counter and beyond what the Laws command r Exerc. 265. Those of Crotone in the upper Calabre protest they would sooner die then mixing with the Bruty those of the lower change into strange rights manners and Laws Å¿ Liv. l. 24. It is memorable what a Persian Collonel speaks to Themistoeles of Lawes Stranger my friend says he The Laws and Customes of men are different some men esteem one thing honest some another but it is very bonest that every man â—â—ep and observe those of his own Country t Plut. in Themist We are the most ingrateful of all men for those benefits we receive from our Laws if we be not zealous for them if we do not strive with all the world in that lawful glory of obeying Laws we may call the Law of the land most sacred as reasonably no doubt as Justinian calls his so I will shew how this and all additions of dignity else are due to it And now that we may not be ashamed of obedience that we may not so much unman our selves to bespeak and worship an unknown Goddesse though as short of what should be as much imperfect as the Fuller earth and sea are crowded into a Globe I will say shorter so far am I from promising and I believe he that makes the next sally may be short for it must be a great hazard a great adventure to praise those things which no men could ever dispraise if he that writ Trajanes Panegyrick could not do him full right as I cannot think he did what can be said of these Lawes which had more then twenty Trajans for their founders with their Senates of their worth that if after the old trick you should call the Gods in nothing could be got by the voucher I say that we may not be ashamed of our obedience to such Laws I will show what they are and which is the best demonstration I will shew what this tree is by the fruit The Law of England is that which is called Common Law of England The Common Law explained and declared by judicial records and supplyed where the plainness of it cannot reach the injustice and deceits of men practised in the later more crafty and wicked ages by that Law which is called Statute Law u 1. Inst 11 besides which there are reasonable customs c. The Common Law excelleth the Statute Laws and may controle Statutes w Hub. l. 5. E. 4 40.4 Inst 42.3 Inst 13.77 2. Inst 526.588.518.11.6 7 8. If as the Lord Cooke they be against common right or reason repugnant or impossible x Sir l. Dav. Pref. r. 8.118 Dr. Cowel a Civilian yet very knowing in the Common Law sayes It is derived from the Law of nature and of Nations as well as any other Law whatsoever consentaneous to Justice and reason y Inst Jur. Anglic. 25. Dav. rep 30. Postrat As Moyle We rule the Law according to the ancient course z 33. H. 6.8 And as Ashton there a f. 9. Where it hath been the use of all times to wage Law and no other way this proveth in a manner a positive Law for all our Law is guided by Vse or Statute And Prisot where Ashton says this as a positive Law says it cannot be for there cannot be a positive Law but such as is judged or made by Statute In the same Book Fortescue says The Law is as I have said and ever was since the Law began though the reason be not ready in memory yet by study and labour a man may finde it b E. 5. and Markham a chiefe Justice c f 24 4.41 It is good for us to do according to the use before this time and not to keep one day one way for one party and and another day the contrary for the other party and so the former presidents be sufficient for us c. And Ascue Such a Charter hath been allowable in the time of our predecessors who were as sage and learned as we be d 37. H 6.22 4 Inst 165 Dact. 17. all Commissions of Justice use to run according to Law and Custome of England as of Oyer and Terminer of Goal delivery of the peace c. The Writs run To take that Assize or do that c. according to Law and custome e Nat. Brev 186.118 c. there is Custome of the manner f Na. B. 3. Custome of the City g ibid. 22. as Sir Iohn Davies in his Preface to his Reports long experience and many tryals of what was best for the Commonwealth begot the Common Law This Law as the Spartane Law and part of the Roman Law in imitation of them is said to be unwritten and preserved in the memory of the people yet is there little of it if there be any little but may be found in the book Cases the Romanes called their unwritten Law Custome Custome so they approved by the manners of those who use it obtaineth the force of a Law written h Just Inst L. 〈◊〉 2. and again without writing that becometh a Law which use hath approved For continual manners approved by the consent of those who use them imitate Law i Vbi sup this is matter of fact and consisteth in use and practise onely nor can it be created by Charter or Parliament for as the same Sir Iohn Davies k Vbi sup when a reasonable act done is found agreeable to the nature of a people who use it and practise it again by iteration it becometh Law and as he goes on this custumary law is the most perfect and most excellent every man in reason will grant this to make and preserve a Commonwealth For lawes made still he speaks either by Edicts of Princes or Councels of estates are imposed upon the subject before any tryall made whether the same be fit and agreeable to
chiefe Justice of the Common Pleas having abjured c. for murder His wife and son Petition the Parliament for a Manour which the Lord of the Fee had seised as Escheated in which Sir Thomas had onely an estate for life joyntly with his wife but the inheritance was in the son by fine There were summoned says the Record as well the Iustices of either Bench as the rest of the realme c. expert in the laws and customes c. The resolution speakes Before the Councel c. there being called the Treasurer and Barons and Iustices of either Bench it is agreed c. The famous case of conveening Clerks before the secular Magistrate was debated in the time of a Parliament of Hen. the 8. the Iustices c. being present and ruled according to the opinion of chiefe Iustice Fineux a most reverend Judge y 7. H. 8. Kelle vay 183. Reasonablenesse of time for tenant at Will discharged to carry away his goods of incortain fines of Copy holds c. is to be adjudged by the discretion of the Judges z Inst 57.59 Distresses are by the Statute of Marlbridge to be reasonable a c. 4. No more is said The Judges have ever yet determined that reasonablenesse as they have ever ordinarily what is reasonable in other things just and injust right and wrong what are evil customes and what not according to the Laws they have the use and customes of judgement saies a Statute b De Bigaem c. 1. Good reason then that they be Judges of that use and those customes They may claime this authority by a long prescription it has been allowed them in all Parliaments and by all Parliaments hitherto c V. 1 H 7. 3.4.20 3 Just 3. They in all the books doe not onely expound interpret and deliver the sense of Statutes but in Parliaments too upon consideration of a Bill in the 43 and 44 of Queen Elizabeth it was resolved so we finde a book speak By the chiefe Iustices Popham and Anderson and by divers other Iustices assistants to the Lords of Parlia ment in the upper House That leases to the Queen c. against the provision of the 13 of El. are restrained by the same act d 5. Rep. p. 2.14 The Lord de la Wares case concerning disability temporary and absolute was in a Parliament sitting referred to a Committee which at the Lord Burgley's Chamber in White-hall heard what could be said by Councel in the presence of the two chief Justices and of divers other Justices by whom it was resolved e Rep. 11.1.39 El. Here is an allowance of the latter as wel as former ages whatsoever the change may be let us change till we shall not know our selves if we retaine any face of Law or Judicature so it must be I never heard nor those who have heard more of such a Law yet which could be learned practised and understood without study and which all men but those who had studied and understood it might be Judges of The professed enemies of the Laws of England as such lawes have not been many no not in very many ages much stirre there was much disquiet ere they were had or rather restored Never any tumults all the Histories ore to undoe what was setled I doe not remember any other Law named against it but the Law of Wat Tylers mouth f From this day saies Tiler in London all Law shall fall from Wat Tylers mouth which we can make nothing of we heare of Kets Oke of reformation nothing of his Lawes The Lawes never were made the title of a rising yet I believe under such leaders little of the building would have stood whole Those of the Roman heresie are and have been inveteratly spightfull have more then once attempted to blow the Lawes and the Nation into the ayre together according to that divine determination of the Jesuiticall Oracle that the innocent may be destroyed with the wicked the Wheat plucked up with the tares g Act. p. 93. They would have blown up all our Laws though all of them are not accused not slandered by them not in what I have seen of theirs though likely they shal all have their turns not one of them not yet perhaps traduced by them as they are offended by it if it keep their mischiefes from ripening and be executed against them though much more ancient then our quitting them and their heresies and approved by their own Clergy here but it shall be reproached by them as one of our Statutes Our Laws though necessary and religious against them being called by them cruel Laws h 3 Jac. c. 1. The Statutes of praemunire and provision c. are abominable Parsons the Jesuit that fury of sedition charges the Law of Cawdries case highly and with the least dangerous Ponyards and daggers of his society wounds as he thought the reverend reporter Andrew Eudaemon as others Cacodaemon Johannes in love with the Straw miracle of the Gunpowder Martyr Garnet condemnes our Laws and Courts and the triall by twelve men like Polydore Virgils Ghost in his words He was of Crete so he saies and if we believe him in that we must believe him in nothing else The Jesuits were ever undermining ever active full of plots and treasons and their hatred cannot be imputed to any other cause but this for the ills they had done they feared the barre yet this arrogance they might take from the house of pride of which they were The Prince of which has ever till we left him where he had left the purity of the first ages encroached upon our Lawes and government praetending every where a certain assistance of the holy Spirit for which he is to be obeyed a course I would advise those to take who inveigh next and have nothing to say to the purpose The Pope as the Venetians in the interdict tell the French Kings Ambassadour attributes to himselfe authority to define and determine even against the opinion of all the world what Lawes are just and unjust as Dr. Marta Besides the kisse of the blessed feet he has the free faculty of making and abregating Laws i D' jurisd c. 46. Whence this authority is derived some are not assured they referre it to the spirituall authority with which the temporall is imagined to be indirectly given Others speak plainly that he is a temporall Monarch over all the earth that he might receive appeals from Princes give Laws to them and annul those made by them That Ecclesiasticks are to examine whether the Lawes of Princes be just and whether the people be obliged to obey them if we doubt this think it with the most if we tell the flatterers and Parasites of this chaire the former ages heard nothing not a word of all this They may reply in the words of Paul the 5. That the former Popes did not wel understand themselves a great and certain mark of this
present infallibility To keep on the old course of passing from the matter to the persons there is yet another quarrel of this kind which I wil speak to in a few words There is one fling at the Officers at the ministers of the Law and Courts If there be any imperfection any negligence omission or mistakes in the execution of things as it is but an huge folly to conceive men so full of faithfulnesse and vigilancy but there may be I see not why this should be a blemish to the Law unlesse it may be thought to favour murder or theft because they are done Lawes can but forbid and punish offences if the vices or faults of men must asperse sciences professions and orders and be an argument to demolish there wil not any where be either science profession or order left and long agone had this been heretofore allowed there had been none of these left to demolish The Writs of the Law Writs of which I shal next speak are said by those who are for the Becselenisme of the British antiquity to precede the Normannes the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is used by Zonaras for an Epitome or concise writing a writing which conteines the sum of any matter it may goe amongst the Graecobarbara l D. Spelnt verbo Breve from the Empire it came to the Church Those of Rome a long while have had their Apostolicall Writs In the Lawes of King Henry the first amongst the publique offences for which men were amerced to the King after breach of the peace which leads the order follows the contempt of his Writs m Ll H. 1 c. 13. where they are first heard of These Writs at the first were but the Kings letters the Monkc of St. Albanes makes them the same In the controversie betwixt William the Chamberlaine and Gilbert of Cymmay concerning the Church of Luiton A certain Writ of the King meaning Hen. the 2. saies he was brought as a praecept to the men of Luiton to recognise the truth of the right of the Church c n Vit. Abb. 67. Another place has attached according to the law of the Landby the Kings Writ o ibid. 143 elsewhere they are called Letters the Letters of the King and of the Chiefe Justice are set downe in this Historian p ibid. 75. who againe in the Majority of King Henry the third saies It was provided of the commune Counsell of the Arch-Bishops and Bishops that the Lord the King should have his Seale and his Letters should run q Addit ad Paris 151. In the Chapters of the pleas of the Crown in the time of Rich. 1. recited by Hoveden an Historian somewhat more antient then the other is said And of all recognisances of all pleas summoned before the Justices by the Kings Writ or of his Chiefe Justice or from the chiefe Court of the King r Hoved. 744. v. 549 in another place the Writs of King John then Earle of Moreton are said to be taken with his Messenger containing his commands his Mandates by the Major of London who delivers them to the Arch. Bishop c. who calling before him c. the Barons showed them the Letters of Earle John and their tenour s id 735. s 30. A Writ with us is a rule of Law which briefly tells a thing t Bract. l. 3. c. 12.15.413 which in a few words delivers the intention of him who brings it some vary according to the diversity of the Cases Facts and Plaints There are as many formes of them as there are kindes of actions they ought not to containe either falsenesse or errour No man is bound to answer without a Writ u Fleta l. 2. c. 12. l. 6 c. 35 36. Brit. c. 84. The Civill Law makes this necessary it makes citation parcel of the Law of Nature w C. de unoquoq F. de re indiciar c. c. 1. The Writs as Doctor Cowell containe a summary and succinct repetition of the fact which brings forth the actions x Instit Ju. Angl. l. 4. tit 6. well may the Lord Cooke tell us they are so artificially and briefly compiled as there is nothing in them redundant or wanting y Inst 73. and Sir Thomas Smith Secretary of State and Privie Councellor to Queen Elizabeth said It was not possible perspicuously to comprebend so much matter in fewer words Concerning the execution of Writs the direction returnes and processe c. upon them he who would see what a strict care the Law takes that things be done justly speedily and without deceit must search into particular cases which it would be too tedious here to tarry upon Pleadings In the next it will not be impertinent to consider something of the Pleadings in the Actions of the Common Law which whoso shall well consider he shall not finde them so horrible as some imagine them nor the formes so intricate and dangerous as they are misconceived Pleas must not be confused and misordered First the Jurisdiction of the Court must be pleaded to then the person c. Every Plea is to be direct not by way of argument c. and to betriable pertinent to the pleader it ought to have its proper conclusion Things apparent need not be averred surplusage if not contrary to the matter hurts not It must not containe multiplicity of matter to the same thing there must be certainty and truth in Counts c. the replication must not depart from the Count nor the reioinder from the Bar c. The Count must agree with the Writ if time order and forme were not observed in these things the Judge and the Jury would be intangled invincibly and Suites would be endlesse If we look on the Libels in the Civill Law and the Declarations of the Common Law on the defences of the one and the barres of the other on the judgements of them both we shall finde nothing in those of the last too narrow nothing which can be left out The example of the action of injuries and of the action upon the ease which are the same are compared by M. Fulbeck z Paral. 10 Dial. 67. I will say no more of the Libell and Declaration but this That the first exceeds the last very much neare a third part in length things quite differing in nature enough to encumber the understanding being brought in I will onely compare yet not at large the defence of this action of Injuries of a lesse bulke then the Libell and the barre in the action of the Case after a tedious recitall of that which makes little of the malice c. of the actor after a long prayer to be absolved and that the accuser may bee condemned in charges stretched neare to the length of twenty lines where the Latin runs as in all Lawes it must rather in a legall then an eloquent stile The defence speaks thus Inprimis igitur dicit