committed within your libertie you shall also present all offenders and offerces against the Statute made in the fourth year of our late Soveraigne Lord King Iames intituled an Act to represse the odious and lothsome sin of drunkennesse and also against the Statute in the first Session of Parliament in the first yeare of his late Majesties raigne intituled an Act to restraine the inordinate haunting and tipling in Innes and Alehouses and other victualling houses with the alterations and additions contained in the said Act of the fourth yeare according to the alterations and additions of the Statute made in the 21. yeare of his said late Majesties raigne intituled an Act for the better repressing of drunkennesse and restraining the inordinate haunting of Inns and Alehouses and other victualling houses And lastly you shall well and truly doe and execute all those and such other things as are incident and doe belong unto your office of Constable for this yeare now to come So help you God FINIS AN EXPLANATION OF The old Oath OF LEGEANCE CONSISTING Of these foure generall Heads 1 What Legeance Ligeantia or Fides is 2 The extent of it by this ancient Oath and the severall parts and branches of the Oath 3 The Modus Reddendi of aids and supplyes to the KING 4 The Royall Office of the KING in the protection of his people confirmed at his Coronation Together with their severall Subdivisions at large LONDON Printed by Richard Badger 1641. AN EXPLANATION OF THE ANCIENT OATH OF LEGEANCE AN Oath is an attestation or calling God to witnesse of the truth touching those things which we say affirme and promise to do upon the holy Evangelists and before a lawfull Magistrate authorized to take such an Oath and that is a legall Oath There are two sorts of Legall Oaths used and practised within this Realme viz. Iuramentum consuctudinarium warranted by the custome of the Realm which is no more than the Common Law 2 Iuramentum Parliamentarium an Oath created and enacted by all the three States as the Oath of Supremacie prescribed 1 Eliz. cap. 1. and the Oath of Allegeance 3 Iacob 4. And no Oath can be imposed upon the Subject but what is enabled by the usage of the Common Law or by an Act of Parliament This ancient Oath was in time very long before the great Charter as in the former tract is remonstrated And bath beene confirmed from time to time in and by Magna Charta So that it hath 〈◊〉 power and vigor both from the common and commitâ—â—â— lawes of this Kingdome The Oath though once before mentioned doth follow viz. Heare yee that I. N. do sweare that from this day forward I will be true and faithfull to our Soveraign Lord the King and his heires and truth and faith beare of life and member and terrene honour And I will neither know nor heare of any ill or dammage intended unto him that I will not defend So help me God This Oath containes a reall protestation of every Subjects dutie to his Soveraigne and expresly declares what Subjection and Obedience ought to be expected from them and implicitely the office of the King towards his people which is protection for it is truly said That protectio trahit subjectionem subjectio protectionem It is cleare that the generall obligation of subjection and duties from the people and the power and prerogatives royall in the Prince are included in the law of God and are part of the Law of Nature whereto all Nations have consented which if I should Illustrate as well I might by innumerable testimonies presidents and examples aswell out of sacred Scriptures and Fathers as out of Heathen Writers Historians and others it would fill up a larger volumne than this Subject would require I am onely to deale with that subjective faith and Legeance which by the provinciall Lawes of this land which are Generalis consuetudo Regni Anglicae is naturally and legally jure haereditario due to the person and royaltie of his sacred Majestie This Legeance is derived to him from Lex aeterna the Morall Law called also the Law of nature part whereof the Law of England is being first written in Tabulis rectae rationis in the heart of man and the people by that Law governed two thousand yeares before it was published and written by Moses and before any judiciall or municipall lawes For the better informing of the vulgar sort of people herein for whom it is most convenient I shall assay to present to the well affected reader some collections to that end whereof I shall as the matter will beare endeavour an orderly prosecution 1 First a generall proposition what Legeance ligeantia or fides is 2 Secondly the extent of it by this ancient Oath and the severall parts and branches of this Oath 3 The Modus reddendi of aides and supplyes 4 The Royall office of the King ad protectionem for the protection of his people sacramentally confirmed at his Coronation 1 Legeance is a true and faithfull obedience of the Subject due to the Soveraigne this Legeance and obedience is a due inseparable from the Subject and is called ligeantia naturalis for as soone as he is borne he oweth by birthright Legeance and obedience to his Soveraigne Ligeantia est vinculum fidei the bond or obligation of faith and loyaltie Master Skency De verborum significatione verbo ligeantia saith That it is derived from the Italian word liga viz. a bond league or obligation As a great Lord Chancellor in the case of postnati said That ligeantia understood sensu currenti in the language of the time is vincusum fidei obedientiae the tye or bond of faith and obedience And he that is borne in any of the Kings dominions and under the Kings obedience is the Kings leige Subject and borne ad fidem Regis That is being the proper word used in the Law of England to be faithfull to the King It extendeth further in all cases of denization which is called ligeantia acquisita where any alien or stranger borne out of the Kings Dominions doth afterwards by any common grant of the King any Act of Parliament or other waies or meanes obtaine the freedome of a Subject within this Land Sometimes the extention of this word is yet larger for he that is an alien born out of the Kings Dominions ad fidem or under the obedience of another King if he dwell within the Kingdome and be protected by the King and his lawes hee is under the Kings Legeance ligatus Regiâ— and the reason is plaine For if to such a person any injury is done either in life member or estate the Law taketh as severe an accompt and inflicteth as severe a punishment upon the offenders in such cases as if the partie injured had beene subditus natus borne within his Majesties dominions Then great reason that such persons having the benefit of naturall borne subjects which is protection from suffering
and without limit from this day forward 2 The terminus a quo you every subject whom the Law injoynes to take this oath 3 The qualities or properties required that is to be true and faithfull 4 Terminus ad quem to whom To our Soveraigne Lord the King and his heires 5 In what manner And faith and truth shall beare of life and member That is as in Calvins case untill the letting out of the last drop of our dearest heart blood And I must adde what is there omitted And terrene honour That is the uttermost of our estate and livelihood 6 The circumstance of place where these duties of Legeance concerning our lives and estate ought to be performed it must bee in all plaees whatsoever without any circumscription for you shall neither know nor heare of any ill or dammage c. that you shall not defend The parts of this oath for the better instruction of the common people I shall summe up in this one proposition which I will presume briefly and succinctly to handle Every subject must be true and faithfull to the King and his heires to the uttermost of his life and fortune or estate 1 The King hath a double capacitie in him one a naturall bodie being descended of the blood Royall of the Realme which is subject to death infirmitie and such like 2 The other is a politike bodie or capacitie so called because it is established by the policie of man and in this capacitie the King is esteemed to be immortall invisible not subject to death infirmitie infancie non-age c. This Legeance is due to the naturall person of the King which is ever accompanied with the politike capacitie that is the Crowne and Kingdome And is not due to the politike capacitie only distinct from his naturall as by divers reasons in Calvins case is at large recited and resolved For if that distinction might take place then would the faith legeance and obedience of every subject due to his Soveraigne be appropriated regimini non regenti to the government of a Kingdome not to him that ruleth or governeth In the time of Edward the second at a Parliament holden at Yorke Hugh la Spencer the sonne being nominated and appointed to serve the King in the office of Chamberlein did draw unto his adherence Hugh Spencer his father and they both usurping upon the Kings Royall power and compassing about to have the sole government of the land to themselves did traiterously contrive a declaratorie writing which they would have compelled the King to signe purporting amongst other mischievous positions That homage and oath of Legeance was more by reason of the Kings crown that is his politike capacitie than by reason of the person of the King whence they inferred these damnable and detestable consequents 1 If the King did not demsne himselfe by reason in the right of his Crowne his leiges were bound by oath to remove him 2 That sithence the King could not be reformed by suite of Law that ought to be done per aspertee by asperitie of Compulsion 3 That his leiges be bound to governe in aide of him and in default of him All which execrable opinions were condemned by two Acts of Parliament one in the 14. yeare of the raigne of the same king Edward the second called Exilinm Hugonis le Despensor patris filiâ— the other An. 1. Ed. 3. cap. 1. which confirmed the banishment of these Spensers Legeance then by law of nature before any judiciall or municipall lawes were recorded or reported is due to the sacred person of the king alone immediately and without any intervallum or moment of time and before the solemnitie of his Coronation and so must remain to him and his heires and entirely without any partnership with him or any intermission in default of him emnimode by all wayes and meanes It is due to his naturall person accompanied with his politike capacitis indistinctly without any partition or separation and this oath is a politicall confirmation of that Legeance It is due to him as he is mixta persona anointed by the hand of the priest as he is supreme head under Christ in all causes and oveâ— all persons aswell Ecclesiasticall as Civill The qualities prescribed by this oath are naturally incident to Legeance veritie and fidelitie to be true and faithfull and they compâ—ehend what before is spoken of faith obedience and subjection faith unto his person obedience to his lawes Subjection to his government or all to all faith subjection and obedience to his person laws and government By the ancient lawes of this Realm this kingdome of England is an absolute Empire and Monarchie consisting of one head which is the king and of a bodie politike which is the common wealth compact and compounded of many and almost infinite severall members all which the law divideth into severall parts the Clergie and the Laietie this Legeance requires a due observancie of all the Morall lawes contained in both Tables of the Decalogue To obey our king in the true and sincere worship of God according to the canonicall discipline of the Church ratified by his regall authoritie To obey him in abandoning all apostasie from Christianitie heresies schisms factions fond and fantastike opinions repugnant to the Orthodox doctrin of the Church To obey him in acknowledging a supremacie in him and a subordinate superiority in his Ministers and Magistrates over his people To obey him in all the rights of distributive and commutative justice in doing good as works of mercy charitie and pietie and eschewing evill that is all sorts of felonies fraud force deceit and all offences whatsoever which derogate from or deprave the peace and government of the Realm The performance of these duties makes a true and faithfull subject The latitude and extent of this veritie and fidelitie from the subject to the Soveraign is twofold The extent this oath first of life and member secondly of terrene honour wherein the prerogative of the king is considerable generally according to the speciall law of nature called by some jus Gentium and stiled by our common law lex rationis the law of reason and more specially according to the municipall lawes and customes of this kingdome The King is pater patria and every subject is bound by the law of nature to hazzard and adventure both life and member for the safetie of the King and Countrey either against privie and traiterous conspiracies civill mutinies and dissentions or hostile Invasions or injust warres or in the execution of legall acts of justice The Poet could say Dulci est pro patria mori a sweet thing it is to die for our Countrey and as sweet a thing it is to die pro patre patria for the father of our Countrey for indeed both come to one There may bee many causes of warre which when they are discussed and resolved by the King and State the justnesse of them is not to be disputed by
you tribute also For they are Gods Ministers attending continually upon this verything Verse seven Reddite ergo Render therefore to all their dues tribute to whome tribute is due custome to whome custome feare to whome feare honour to whome honour By this text mee thinkes the verie words terrene honour is sufficiently explained in the generall word debita dues specified in the particular words tribute custome c. One thing more is worthy consideration upon that of Romans 13. the generalitie of the Apostolicall edict Omnis anima subdita sit c. No person either of Clergie or Laietie is here excepted Though Bellarmine and other Romish Champions would have bona clerici tam Ecclesiastica quam sacuularia the goods of an Ecclesiasticall man as well spirituall astemporall to be free from tribute unto secular princes yet by their favour both by the law of God and the law of nations and then by our common law no man doubts it all Ecclesiasticall persons as they make a part of the common wealth are subject to their prince aswell in their secular goods whether they be patrimonialia seu mobilia without any manner of exemption nay such goods as we call Ecclesiasticall being within the dominion of the prince who hath a generall charg of conserving all subjects goods ought to be charged with necessary dues and duties to the king For if they be as they are upon judgements liable for the payment of debts to particular persons then a fortiori to the king for tributes taxes and subsidies And great reason for they have the same protection with some more priviledge and therefore ought to acknowledge the same subjection due to him To adde something more to terrene honour and the explanation thereof it must signisie so much as the first word of the fift Commandement implies Honor a patrem c. It is received amongst all Divines that under the names of patris matris are meant not only our naturall but our civill parents as Kings and Princes and others constituted in authoritie under them and by the word Honour is not intended a bare outward respect but reverence attended with feare honor bene faciendi timor male agendi This word honour doth first include all those duties which wee own not onely to our naturall parents but to our prince who is Pater civilis and the duties are respectively these viz. love observance worship obedience aide and supply in relieving their necessities and all this must be done corde ore opere in thought word and deed The second dutie to pay their dues unto their princes willingly and freely without discontentment tribute to whom tribute c. and what ever payment else is necessarie for the maintenance of their estate partly that they may be able to represse enemies and rebels and partly that having sufficient maintenance from the people they may not be distracted but bend their whole indeavour to the good governement and protection of their Subjects S. Ambrose commenting upon that 13. to the Romanes citing the words of our Saviour Christ in S. Matthew ca. 22. Reddite que sunt Caesarts Caesari Give unto Caesar that which is Caesars doth interre Huic ergo viz. Principi subjtetends sunt sicut Deo cujus subjectionis probatio hac est cum illi pendunt tributa vel faith he a little before quae dicuntur siscalia Therefore the people must be subuject unto their prince as unto God The proofe or badge or cognizance of our subjection is that we pay tribute or such things or duties as are for the supply of the kings treasurie customes tributes subsidies and all other dues and duties are therefore rendered unto the prince as a token and argument of subjection whereby his subjects testifie that they are truly thankfull for the protection which they receive from the powers which are from God A moderne writer upon the Pandects of the Law of Nations Fulbeck cap. 10. maintaines and well he may that in the law of tributes subsidies and prerogatives Royall all nations have consented And as saith he it behoveth every Monarch to have a watchfull care of his subjects good and bend the force of his minde to the preservation and maintenance of their safetie and good estate So subjects should not grudg to pay unto them tributes and subsidies and other publike impositions that all necessarie charges may bee substantially defrayed all convenient designes produced into act and condignely executed By an Act of parliament 1 Elizab. cap. 3. touching the recognizing of Queene Elizabeth to the Crowne Stat 1 Eliz. It is there declared by all her subjects representing the three estates of this Realm that they as thereunto constrained by the law of God and man did recognize her Majesties right title and succession to the Crowne and did hereby promise that they would assist and defend her Majestie and her rights and titles in and to her imperiall estate crowne and dignitie in all things thereto belonging and at all times to the uttermost of their powers and therein to spend their bodies lands and goods against all persons whatsoever that in any thing should attempt the contrary By the like Act Anno primo Iacobi purporting a recognition Stat. 1. Iac. that the Crowne of England was lawfully descended to king Iames his progenie and posteritie his Highnesse subjects did therby acknowledge his Majesties lawfull descent to the imperiall Crowne of all his Realme â—and his goodnesse and ablenesse to protect and governe them in all peace and plentie and thereunto did humbly and faithfully submit and oblige themselves their heires and posterities for ever untill the last drop of their blood were spent In Magna Charta ca. 14. no man is to be amercied but according to the quantitie and qualitie of the offence A freeman saving to him his contenement that is his free hold-lands A merchant likewise saving to him his merchandise and a villaine or bondman saving to him his waynage or gainure as it is 3. Ed. 1. cap. 6. that is his land which hee held in villenage and the reason of this salvo was as is justly conceived that these things might be respectively enjoyed by the owners of them and thereby they might have where withall to sustaine themselves and their families and to pay their duties to their princes It is most infallibly true and no man can justly impugne it That the King hath power aswell of terrene honour that is a mans estate as of his life 1 By the law of God as a signe or Character of our subjection 2 By the law of nature as a testimonie of regardfull thankfullnesse for his vigilant and assiduous care paines and protection 3 By our owne provinciall lawes as the sinewes of the states preservation Thesaurus regis securitas plebis The Kings treasurie is the peoples securitie Money is the strength of a State But de mode reddendi the manner of rendring to our prince his dues 2 Branch
De â—odoâ—reddendi according to the true meaning of this ancient oath of Legeance is the difficult question S. Pet. 1.6 2. v. 13. giveth this monition Submit your selves to every ordinance of man for the Lords sake whether is be to the King as supreme vers 14. or unto governours as unto them that are sent by him c. Though by the rule of S. Paul the substance of every princes power is the ordinance of God yet the specification of the circumstances thereto belonging as in regard of places persons Jurisdiction subordination and the rest is an humane ordinance introduced by custome or positive law Hence I will deduce this generall position That all subjects are bound by dutie and legeance to their princes to render to them civill obedience and their dues and duties according to the laws and customes of that kingdome wherein they live then by consequence the subjects of great Britain to their gracious Soveraign according to the Lawes and customes of our Nation To capitulate here all the casuall dues and duties annexed to his prerogative as forfeitures escheates confiscations or such like or wardships mariages primer seisin and many more at large recited and declared by the statute intituled Prarogativa Regis published in the 17 yeare of Ed. 2. Or to make particular rehersall of other ordinary dues as customes aide and such like were cleerly out of the scope of my intention But faithfully to deliver by what ways and means the king may require any extraordinarie aid and supply out of each subjects particular estate or terrene honour hic labor hoc opus est Some not well affected to the constant government of this kingdome The payments of dues and duties most proper by Parliamentary gift would have the kings necessities supplyed by impositions and taxes to bee raised and levied by the kings meer and absolute power without any commitiall consent of peeres and commons others more orthodox if I may so terme it to the happinesse of his Majestie and tranquillitie of the State doe hold and so it hath been declared by ancient modern parliaments that a parliamentarie gift subsidie or supply bee it of what name soever from the subject to the King is most proper and competible with the ancient rule and government of our kingdome The very name of parliament is sacrum quoddam and the nature of it most sublime and so long as the members are in unitie with the head most absolute and illimited The kingdome of England is a most ancient Monarchie under the rule and government of a Supreme Leige Soveraign conform and according to the peculiar lawes and customes of the nation confirmed by severall Parliaments and whereas all other nations as Bracton faith Lib. 1. Cap. 1. were governed by written lawes Sola Anglia usa est in suis finibus jure non scripto consuetudine in en quidem ex non seripto jus venit quod usus comprobavit Sed absurdum non erit leges Anglicanas licet non scriptas leges appellare cum legis vigorem habeat quicquid de consilio consensu magnatum reipublicae communi sponsione authoritate Regis sive principis praecadente juctè fuerit definitum approbatum England only is ruled by a law not written and by custom which by usage hath beene approved and it were absurd because not written not to call them lawes inasmuch as whatsoever by the counsell and consent of the Peers and commons and by the kings royall authoritie shall bee determined and allowed hath the power and vertue of a law Herein we may observe an authentike description of a parliament I cannot passe by the word Quicquid there is some remarkable energie in the generalitie of it that must not goe without a Quisquid Some would have religion and Ecclesiastike persons and do not stick to murmur loudly of it exempt from all parliament power All persons causes subject to Parliament but our Author who wrote in the later time of Hen. 2. well nigh 380 years agone not long after King Iohn had coactedly delivered over his royall Crowne into the hands of the Popes Legat and thereby admitted papall incroachments of jurisdiction in this kingdome although with the common errors of those times he seemed to advance pontisiciall power in Ecclesiasticall causes here cui scil Papae alioqui invictissimi etiam Imperatores Reges cesserunt as it is said in the prologue to Bracton yet he brings all jurisdictions and matters whatsoever with his Quicquid within the cognizance and power of parliament A parliament is the supremest Court of Justice in this kingdome Parliament the supremest court of justice an assembly of the King the Lords and peeres and the Commons of the Realme The word Parliament is a French word and signifies originally as much as colloquium a conference or treatie betweene the King and his Subjects Iâ—â—is great Court the kings of England have ever had authoritatem praecedentem as Bracton notes before aswell in regard of their naturall persons having supremacy and preeminent precedencie over and above all persons as of their politike capacitie and have the sole and only power to call and convene parliaments and to do all other kingly offices And they had and ever have potectatem subsequentem a power to ratifie and confirme such acts and lawes and Statutes whatsoever as are treated and agreed upon by the peeres and commons The king as learned Cambden observes and hath it from Bracton supremam potestatem merum imperium apud nos habet nec in imperii clientela est nec in vestituram ab alio quovis accipit nee prater Deum superiorem agnoscit In short the king is supreme over and above all persons and owneth no superiour but God The parliament is called by writs of summons directed to each peere of the land The calling of the parliament and by writs of summons directed to the Sheriffes of each severall countie And it is called by the advice and consent of the kings councell but note the king of England is armed with divers Councels One which is necessarieto be explained called Commune Concilium in all writs and proceedings and that is the high Court of parliament A second which is grande or magnum concilium which is sometime applyed to the upper house of parliament sometimes out of parliament to the peeres of the realme Lords of parliament Thirdly he hath his legale concilium his judges of the law for law matters The Fourth and last and not the least is the kings privatum concilium his privie Councellors of State The king hath as all the kings of England ever had his sacros and secretos consiliarios his sacred guard of privie Councellors Majorum et sapientissimorum è regno Amongst whom he fitteth in person and moderates their consultations in imitation of the precepts and presidents recorded in holy Scripture Where no counsell is the people fall but
not our Christian faith and legeance to our Saviour nor our naturall or civill Legeance to our Soveraign cannot bee interdicted to the poorest thoughts Sure I am this Court is so ancient and of such transcendent honour and justice as Plow com.fo 399. observeth that none ought to imagine any dishonourable thought of it and why It must be so esteemed ratione persone regis by reason of the kings sacred person who is there present and president of that great Assembly as also the laws there made are established by the generall consent and are obligatorie both to king and people The parliament being called with the advice and consent of the privie Councell what is the end of their meeting Sir Thomas Smith in his Common wealth of England l. 2. c. 2. shall speake for me The Parliament the Kings Royall assent being had Power of a parliament abrogateth old lawes and maketh new giveth order for things past and things after to be followed changeth the right and possessions of private men legitimateth bastards establisheth formes of religion giveth forme of succession to the Crowne defineth of doubtfull rights whereof no law is already made appointeth subsidies tayles taxes and impositions giveth most free pardons and absolutions restoreth in blood and name with many such preheminences In this great assembly no reviling nor nipping words must be used And if any speake unreverently or sediciously against the Prince or the privie Councell they have not noly beene interrupted but justly sent unto the Tower by the authoâ—â—tie of the house those that be members of that bodie must come with a prepared heart to consult together to give counsell and advertisement what is good and necessarie for the common weale they must come with cheerefull resolutions to supply the prince his wants they must cast off all rancor spleene and private malignancie for locus facer est I will second it with the words of a great Judge Co. Inftit fo 110. a. The jurisdiction of this Court maketh inlargeth diminisheth abrogateth repealeth and reviveth laws Statutes Acts and Ordinances concerning matters Ecclesiasticall Capitall Criminall Common Civill Martiall Maritine and the rest What cannot a parliament doe as a great peere once told Queene Elizabeth Royall assent being had was it not then a hainous and inexcusable crime for any man intrusted with the lawes publikely to declare that the late imposition of Ship-money was a prerogative so inherent in the Crowne as that it could not be taken away by Act of parliament It is most repugnant not only to the workes and writings of the ancient heroes of the law Bracton Fritton Fortescue and others but also to the opinions of grave and learned moderne Writers and dead and living Judges But that opinion and all the proccedings upon the Shipwrits are in this present parliament condemned and disanulled 17. Car. cap. 14. and the petition of right in every particular confirmed To adde something more Bellarmine after many sharpe writings and vehement disceptations in defence of merits and workes of supererogation his age hastening his end now bethinks himselfe falls wholly from disputes of merits to pious meditations and therein presents unto the world Tutissimum est iter ad calum per merita Christi The safest way to heaven is by the merits of Christ An honourable peere as great in the policie of our English state as ever the other was in the Romish Church was formerly a great Zelote for the liberties and wellfare of the common people and an earnest prosecutor of the petition of right Afterwards in the highest of his eminent advancements relapsing and disaffecting the course of parliaments whose examination and try all his actions could not well endure mole tandem ruit sua is at length hurried downe with the weight of his owne greatnesse And not long before his death ingenuously confessed That the Parliaments of England were the happiest constitution that any kingdome did ever live under and under God the best meanes to make King and people happie And sowith his dying words omitting the numerous priviledges of that high Court I conclude this part THE KINGS Royall office OF PROTECTION I Shall proceed to the last of my Generalls that is The Royall office of the King for the protection of his people I have touched before his personall and politike capacity and the naturall Legeance and Subjection of the people to him and principally in the right of payment their dues and duties and the great question de modo reddendi As Legeance is due from the Subject to the King before the Oath be taken and the Oath is but a visible demonstration of it So there is a Protection due from the king to the people before the oath administred to him at his Coronation and that oath is but a politicall expression of what by the law of God and nature and the lawes of our nation appertaines to his Kingly office It is observed upon the sift Commandement Vbi sanciuntnr officia inferiorum erga superiores And. Rivet in 5. Praec Decal ibidem etiam superiorum ergainferiores sanciri where subjection is jojoyned there protection is implyed As the Subjects must bee true and faithfull to the King of life member and terrene honour So the King must be as true to them in the protecting of all these and their libertie and proprietiein all these viz. the libertie of their lives of their religion of their persons and the propertie and right of their lively hood and estates in their lands and goods all which may be comprehended under this one word libertie dulce nomen and res dulcis Bâ—t what is libertie What liberty is It is a freedome or free and quiet enjoying of a man his spiritual and temporall estate his bona animi or animae and his bona fortunae from rapine expilation and all unjust incroachments restrains confinements imprisonments and oppressions whatsoever and that part of our Law which concernes the Subjects libertie is commonly called in the Law bookes Lex terrae Liberty is the only preserveresse of a Christian Common wealth in incolumitie and stabilitie And as one saith Rebus omnibus humanis Anteponenda pro illiusque incolumitate integritate totis viribus opibus dimicandum It is to bee preferred before all humane affaires and the safery and entirement of it to be propâ—gned and defended with all manner of strength and power But liberty must have its modum mensuram It must be with an It a tamen cum justitia dignitate praesidio reliquis reipulblâ—cae ornamentis sit conjuncta It is and must be joyned with lustice Honour ayd and the rest of the Ornaments of a Common-wealth That is true liberty which is joyned or affianced with uptight reason And he is a true Free-man which hath such reason for his guide in all his actions Reason is radius divini luminis the lustre of a divine illumination It is the stampe of Gods Image
whether the robberie bee committed in the day time or in the night Co. lib. r fo 6. Ashpoles Case the Hundred shall not be liable but where the robberie or felonie is committed in the day time yet if diverse doe commit a robberie those of the Hundred ought to apprehend all the felons for though they apprehend some of them yet that will not suffice to excuse them unlesse they apprehend all of them by that Statute of 13. Edw. 1. But now it is qualified in that point by the Statute of 27. Eliz. cap. 13. By which if any of the Inhabitants of any towne village or hamlet next to the place where the robberie was done do in their pursuite apprehend any of the offenders that shall excuse them though all bee not taken The Statutes concerning the approvement of wastes woods c. and other Lawes derived from the Law of Alfred cited by M. Cambden FRom that Law of King Alfred the Statute of 13. Edw. 1. cap. 46. concerning approvements of Wastes Woods and Pastures may seeme to borrow its light whereby it is provided that if any having right to approve do levie a Dike or an Hedge and some by night or at any other season when they suppose not to be espied doe overthrow the Hedge or Dike and men of the townes neere will not indict such as be guiltie of the fact The townes neere adjoyning shall bee distrained to levie the Dike or Hedge at their owne costs and to yeeld dammages At the Common Law if one be slaine in any towne in the day time so long as it is plaine day light and the man-killer doth escape the town where the Felonie was committed shall bee amerced for it Dum quis felonicè occisus fuit per diem nisi felo captus fuit tota villata illa oneretur This I thought pertinent to my present discourse to parallell that ancient Law of Omnes ex centuria decima Regis mulctam incurrerent with our latter Lawes whereby towneships are onerable upon the escape or not apprehending of offenders in certaine cases Besides that good and profitable Law amongst many others that gracious Prince did further decree that the Decurio or Tything man might judge of small matters and the Centurio or Constable of greater matters and at the fiequent meetings in every Satrapie or Shire now called Countie Courts the Senator or Greve was to heare and determine matters of greatest difficultie and moment King Edward sen succeeded who made a law De diebus cogendi populi Edw. sen An. 900 Lamb. fo 51. that every Greve Praepositus quisque should every moneth call the people together doe every man right and decide all controversies which confirmed the use of the Countie Court King Edgar made a law De Comitiis Centuriae Comitiis quilibet interesto That is to say Edgar Anno 599. let every man be present at the Leets or meetings of Hundreds but out of every shire let there be a more famous meeting twice a yeare Celeberrimus autem bis quotannis Conventus agitor and this is now the Sheriffes turne This King did farther decree Lamb. fo 80. that each person should finde pledges who might bring him forth to render every man his owne Quisque fidejussores qui eum jus suum cuique tribuere quam paratissimum praestent adhibeto The manner of proceeding by Juries in those subordinate Courts of Counties Hundreds c. NOw the manner of proceeding at that time in those meetings called Centuriae Comitiis Satrapiae Comitiis now called Court Leets and Sheriffes turnes doth appeare by a Law practised in those dayes and after revived by King Etheldred who lived Anno 979. which thus insueth In singulis Centuriis Comitia Sunto at que liberae conditionis viri duodeni aetate superiores Lamb. Expâ—â— verbo unâ cum Praeposito sacra tenentes juranto se non innocentem damnaturos sontémve absoluturos Let there be meetings in every Hundred and let twelve freemen of the better sort together with the chiefe pledge sweare upon the holy Evangelist not to condemn the innocent nor to acquit the nocent that is to doe every man right I will passe over many good lawes before the Conquest let us cast our eyes a little neerer and see how the Counsell of Iethro to Moses hath beene since pursued Bracton a learned and famous Common Lawyer who wrote in the time of Hen. 3. from the Conquest writes of the practice and duties of Kings Rex non alius debet judicare c. Bract. l. 2. cap. 2. The King and none else ought to judge if he alone be able to doe it sithence he is bound thereto by vertue of his oath and there fore the King ought to exercise the power of law as Gods Vicegerent and minister on earth Sin autem Dominus Rex ad singulas causas determinandas non sufficiat c. But if the King be not able to determine all causes that his labour may be the easier in plures personas partito onere eligere debet de regno suo viros sapientes timentes Deum in quibus sit veritas eloquiorum qui oderunt avaritiam quae inducit cupiditatem Et ex illis constituere justiciarios vicecomites alios ministros ballivos suos ad quos referantur tam quaestiones super dubâ—is quam querimoniae super injuriis c. He ought to choose out of his Kingdome wise men fearing God and hating coverousnesse and out of them to appoint Justices Sheriffes and other Ministers to decide questions of doubt and to redresse injuries c. All subordinate Justice derived from the King and Crowne IN a cause of Replevin upon a distresse for an Amerciament in a Leet 12 Hen â— 18 Fineux then chiefe Justice in his grave and learned argument affirmes That at the first the administration of justice was in one hand and in the Crowne and then afterwards by reason of the multitude of people the administration of justice was divided into Counties and the power was committed to a depatie in every Countie that is to say a Sheriffe who was Bayliffe and Deputie to the King and was assigned for conservation of the peace and to punish offenders and to defend the Realme upon invasion of enemies to bee attendant upon the King in times of warre and to cause all his people within his Countie to goe with him for defence of his land and for the better governement of the Countie and correction of offenders There were two Courts assigned to him viz. the Countie Court held every moneth and the Sheriffes turne held twice every yeare by which two Courts the whole Countie was governed the Countie Court was for one man to have remedie against another for any thing betweene them under 40. shillings And the Sheriffes turne unto which every man within the Countie of a certain age should come and were compelled to come that
of felony by the statute of Westm 2 cap. 24. A pardon of all Felonies in generall words doth not discharge a Rape without speciall words by the Statute of 25 Edw. 3. ca. And the benefit of Clergie is taken away by the Statute of 18 Eliz. cap. 6. It was ever anciently enquirable at the Tourn and Law day where it was not presented before the Coroner 18. E. 2. Vpon a presentment before the Sheriffe in his Tourne and returned upon a Certiorari into the Kings bench of a Rape feloniously committed it was the opinion of Hussey chiefe Iustice and other Iudges 22 Edw 4. fol. 22. that the presentment was void and that the power of a Sheriffe in his Tourne and of a Steward in the Leet being all one they had no authoritie to enquire of any things but such as were felonies and trespasses by the common Law Yet it seemes the wisedome of the common Law thought fit to continue and maintaine the enquirie of that and other offences at Tourns and Leets in the same nature and condition as they were before the alteration by Statutes And though the Statute lawes have in many cases enlarged and extended the punishment yet have they not abridged the ancient discipline and jurisdiction of those Courts All Rapes are here inquirable as trespasses and so it appeares by Fitz. in his Court Leet and in M. Kitchin and all other tracts of this nature Phisyognomie defaced or disfigured IF any put out any mans or womans eyes or cut out their tongues or noses or disfigure any member to the intent they should not see nor speake it was and is inquirable as bloodsheds Fitz. Leet 1 Mariae And yet by the Statute of 5 Hen. 4 cap. 5. The malicious cutting out of the tongue or pulling out of the eyes of the Kings liege people were made felonie and not without good ground sithence they are the principall members to glorifie almighty God The eyes to looke up to heaven I will saith the Psalmist 12 1. Lift up mine eyes unto the hils from whence commeth my help And Psal 123. Ad televavi oculos meos Vnto thee lift I up mine eyes O thou that dwellst in the heavens The tongue to chaunt and send up the sweet incense of prayers and praises to the mercie seat of heaven It must be malice in excesse that dare adventure the depriving and defacing of those instruments and organs of Gods glory Felonies which concerne the taking away wasteing and consuming of Life Bodie and Goods Sorcerers Conjurers and Witches ALL Sorcerers Conjurers and Witches which sort of offenders were by the common law guilty of felony and were to be burnt Fitz. Nat. fo 269. who cites for his authority Britton lib. 1. cap. 17. It was death by the law of Moses Thou shâ—lt not suffer a witch to live Ex. 21.18 A man or woman that hath a familiar spirit or that is a wizard shall be surely put to death they shall stone them with stones their blood shall bee upon them Levit. 20.27 For the repressing of those abominable offences divers lawes were made 33. Hen. 8.8 and diverse other succeeding statutes All repealed 5 Eliz. 16. And that Stature adnulled by An. 1 Iacobi 12. By which for the better restreyning the said offences and more severe punishing the same It was enacted That if any should practise or exercise any invocation or conjuration of any evill and and wicked spirit Or should consult covenant with imploy or reward any evill and wicked spirit to or for any intent or purpose Or take up any dead woman or child out of their grave or other place of rest or the skin bone or any other part of any dead person to bee used in any manner of Witchcraft or Sorcerie Or shall use or exercise any Witchcraft Sorceric Charme or Inchantment whereby any person shall be killed destroyed wasted consumed pined or lamed in their bodies or any part thereof It shall be felonie in them their aiders abbetters and counsellors without priviledge of Clergie or Sanctuary And if any by such practices shall take upon them to declare where any treasure of gold and silver should or might be found or had in the earth or other secret places or any goods lost should be found Or to the intent to provoke any person to unlawfull lust Or whereby any person should be destroyed hurt wasted or impaired in their bodies cattell or goods although the same be not effected and done The first offence is imprisonment for one whole yeare without baile and once in every quarter of that yeare to stand in the Pillory in a market towne in open market or saire by the space of six houres and there to confesse their offence And the second offence felony without any priviledge of Clergie or Sanctuary This Statute so exactly deciphering these offenders doth seeme to receive its light from the Leviâ—icall law Deut. 18. vers 10 11 12 Those that â—asse through the fire that use divination or are observers of times or an inchanter or a Witch or a charmer or consulter with familiar spirits a Wizard or a Necromancer all that doe these things are an abomination to the Lord c. These offences are inquirable at the Tourne and Leet by the Common Law Felonies which concerne the goods of any person and first of Gods House Sacriledge SAcrilegious â—obbing of Churches or Chappels or other holy places and taking away any ornaments out of them feloniously is here inquitable as Felonie Such as Lycâ—â—â—chus the wicked Church robber is described to be Maccha 2.4.42 who for his offence was stoned by the multitude Such offenders in our daies have not the benefit of Church or Clergie Frustra petit auxilium Ecclesiae quipeccat contra Ecclesiam Latrocinium Thest ALL Theft called by the Law Larceny Latrocinium which Bracton describes to be Contrectatio rei alienae fraudulenta animo furandi invito illo Cujus res fuerit is either de re magna of any thing above 12 pence or de re parva under twelve pence But note that this Contrectatio rei alienae must be of personall things and not of reall things as to cut downe a tree and carrie it away Or to take away a boxe with Charters Or to take and carrie away treasure trove any wrecke of Sea or wayfe or strayes is not felony Quia Dominus rerum non apparet Cut-Purses or Pick-Purses A Kinde of evill disposed persons felons and theeves by the law which commonly usurpe amongst themselves a wicked brotherhood and live by the spoile of good and true Subjects by felonious slights and devices from which they have their appellation they set up their shop every where not only in places of commerce as markets and faires and other popular meetings but in the sacred places of pietie and justice nay at the very execution of malefactors which should bee a terrour to them Britton cites the inquirie of them at the Tournes and Stat. 8 Eliz. 3 bars
sight of him though he after take him It is fineable according to the quality of the offence Rescue de felon IF any shall presume to rescue and set at liberty by fraud or force any person apprehended or arrested for felonie it is felonie in the rescuer and here inquirable 1 Henry 7.9 * ⎠* The Second sort of Offences which doe concerne the power of a Leet both in inquirie and punishment and are either grounded upon the Common Lawes or the Statute Lawes of this Realme and may be reduced to these severall Branches hereafter following The KINGS Prerogative ALL Suitors and Resiants within the Precinct of a Leet ought to appeare in person and are presentable if they doe absent themselves Chiefe Pledges IF the Capitall or chiefe Pledges of every Decennary viz. the Tething man whose institution and office hath beene before at large described doe not appeare the ancient use of them was to take care that none should come within the Seigniorie or libertie but find pledges of their good abearing If this law were well observed the Justices of peace would not bee troubled with setling and dissetling of persons from parish to parish as now they are Legiance ALL and every male person of the age of 12 yeares and upwards abiding within a Libertie by the space of a yeare and a day who hath not done his suit royall scil taken the oath of Legiance before at large expressed are presentable 18 Edward 2. Every one of that age being a subject borne must be Iuratus in Decennaria Brooke Leet 39. See Canutus Law 19. Lamb. â—râ—h Nos vero praecipimus ut quisque annos ad 12 natus jurejurando fidem det se in posterum tum furto tum furti societate temperaturum All and every person or persons who shall keep or harbour any such youths and do not bring them in to be sworne are presentable Broo. Leet 7. Common Nusances ALL Purprestures are here inquirable The word is not obvious to every countrie capacitie Glanv li. 9 ca. 11. thus defines it Dicitur autem propriè purprestura c. It is properly called Purpresture when any thing is unjustly usurped upon the King as upon the Kings demesnes or in stopping the publike wayes or turning publike waters out of their right course Or when any man shall erect any thing in any Citie upon the Kings street and generally Quoties aliquid sit ad nocumentum Regii tenti vel Regiae viae vel civitatis All Purprestrures are either erigendo or destruendo either in setting up or casting downe something which may tend to a publike annoyance They are commonly made in Lands Woods and waters to the inconvenience of his Majesties leige people by stockes and blockes or levying any Dikes or Hedges or by making or filling up any Dikes If any walls houses pales or hedges be made and erected or beaten and throwne downe or any wayes and paths opened or stopped to the hurt of the people If any waters be turned or stopped or diverted out of their right course or if the common Rivers be corrupted and annoyed by white tawing lime or such like Or if any ditches mounds and Rynes which are the fences of grounds be not duely scoured and cleansed Incroachment on High-wayes IF any incroach upon the Kings high wayes or any carrion or unwholesome thing be cast into the same or in the common streets to the annoyance of the people Bridges c. IF any Bridges or Causeyes be decayed or broken inquiry is to be made of the defects and who ought to repaire them Watering with Hempe c. IF any person do water any Hempe or Flaxe in any river running water streame or brooke or other common pond where beasts doe use to drinke it was and is a popular nusance at the Common Law and inquirable and amerciable at the Leet But by the Statute of 33 H. 8. cap. 17. the partie offending doth forfeit for every time so doing 20. shillings 33 H. 8. c. 17. the one halfe to the partie grieved or any other that will sue for the same forfeiture in any Court of Record Leet or Law-day by action of debt bill plaint information or otherwise and the other moytie to the King As High-wayes must not be incroached upon or annoyed so they must be duely repaired and amended High-wayes THere are two sorts of Highwayes 1 Chimini Majores 2 Chimini minores The Majores are the foure great fosse wayes whereof two extend through the Kingdome in length and two in breadth The lesser wayes are such which leade from Citie to Citie and from one Towne to another per quos mercata vehuntur c. for conveying and carrying of wares and merchandize from market to market and concerning these it was the Law of King Edward Confessor Si quippiam operis ad corum perturbationem erigatar solotenus deponatur chimini more solito reparentur which is agreeable to the common Law at this day And for that the highwayes grew very noysome and tedious to travell in 1 2. Ph. Marca 8. and dangerous to all persons passengers and carriages It was enacted That the Constables and Churchwardens of every parish within this Realme should yearly upon tuesday or wednesday in Easter weeke call together a number of the parishioners and elect two honest persons of the parish to bee surveyers and orderers for one yeare of the workes for amendment of the high wayes in their parish leading to any market towne That the surveyer shall have authoritie to order and direct the persons and carriages which shall be appointed for those workes by their discretion and shall take upon them the execution of their offices upon paine of 20 shillings every one making default That Stewards of every Leet have power to enquire by the oathes of the suitors of all and every the offences that shall bee committed against every point and article of this Statute and to assesse such reasonable fynes and amerciaments as shall be thought meet That the Steward of every Leet shall make estraets indented of all the fynes forfeitures and amerciaments for the defaults presented before him and shall deliver one part figned and sealed by him to the Bailiffe or high Constable of every Hundred Rapelathe or Wapentake where the defaults shall be presented and the other part to the Constables and Churchwardens of the parish wherein the defaults were made the same to bee yearely delivered within sixe weekes after Michaelmas to bee bestowed on the high wayes in the said parishes That the Bayliffe and head Constable shall at least once every yeare betweene the first of March and the last of Aprill make true account and payment of all such summs of money to the Constables and Churchwardens of every such parish or two of them as hee shall have collected upon any the said estreats upon paine to forfeit 40. shillings for every time to be bestowed as aforesaid This Statute by a Latter of 5 Eliz 13.
of the fee and the reason why he was not to be convicted in his life time because it was presumed that hee might repent and forsake the sinne before his death which if he did he was then freed from the mulct of the Law and so it is rendred in the same tract Sciendum tamen quod si quis aliquo tempere usurarius fuerit in vita sua super hoc in patria publicè defamatus Si tamen a delicto suo ante mortem suam destiterit penitentiam egerit post mortem ipsius ille vel res suae lege usurarii minime sensebuntur And li. 10. ca. 3. He defynes what a Vsurer is one that taketh more than his owne Si quis aliquid crediderit si plus eo receperit usuram facit This Law had its propagation from the confirmation of the Mosaicall law by king Alfred Exod. 22. vers 25. Lamb. Arch. fo 23. Si pecuniam mutuam dederis populo meo pauperi qui habitat tecum non urgebis eum quasi exactor nec usuris opprimes It seemes by the Statute de Iudaismo made An Dom. 1289. 16 Ed. 1. That the dispersed Iewes who then much infested this Kingdom were the first introductors of this sinne and the only usurers of this Kingdome whereby his Majesties leige people received much mischiefe and disinherison and many offences arose and therfore for the honour of God and common profit of his people it was ordained That no Iew should from thence forth take any thing to usurie of any Christian upon any Lands Rents or other things and if any Iew did offend against that ordinance he should lose his loane be punished at the Kings pleasure and the Christian should recover his gage viz. his lands rents or other things This Iewish leprosie had so spread it selfe in this Kingdome that it grew even excessive amongst Christians for redresse whereof it was provided 3. Hen. 7.6 That all unlawfull chevisance and usurie should be extirpate and Brokers of such bargaines should be set on the pillory be halfe a yeare imprisoned and pay twenty pound That Statute and an other of 11 H. 7.8 were repealed by 37. Hen. 8. ca. 9. And provision made that no person by any covin engin or other deceiptfull way should take above ten pounds in the hundred interest for one whole yeare upon paine to forfeit the treble value of the wares marchandizes and other things so bargained c. imprisonment of bodie and fyne and ransome at the Kings pleasure This Statute being repealed 5. Ed. 6.20 was fully revived 13. Eliz. ca. 8. And further enacted that all bonds contracts and assurances collaterall or other to be made for payment of any thing reserved above the rate of 10. pound in the hundred should be utterly void and all Brokers sollicitors and drivers of usurious bargaines above that rate to be judged punished and used as Counsellors Attourneys or Advocates in any case of Praemunire And for that all usurie being forbidden by the Law of God is sinne and detestable It was further enacted That in all usurie loan and forbearing of mony at 10 pound in the hundred and under the offender should forfeit so much as shall be reserved over and above the principall to be recovered and imployed as is limited for forfeitures by the Statute of 37. H. 8. And not to be punished by the Ecclesiasticall law or otherwise This law was made perpetuall by the Statute of 39. Eliâ— 18. The Statute of 21 Iac. cap. 17. which by 3. Car. cap. 4. is made perpetuall 11 Iac. ca. 7 doth restraine the taking of any more than after the rate of 8. in the hundred for one whole yeare under paine of forfeiture of the treble value of the monies wares c. and all bonds contracts and assurances to be void The Scriveners Brokers Drivers and Sollicitors to forfeit 20 pound and imprisonment for halfe a yeare if they take above 5. shillings for the procuring or driving the loane or forbearing the same lent after the rate of an hundred pound for one yeare or above 12 pence for making or renewing the bond These two last mentioned Statutes doe respectively stand and remaine in their proper and peculiar force according to their severall restrictions and limitations yet none of them doe abrogate the inquirie of it as an offence of the common Law in the Sheriffes Tourne or Court Leet but the Steward cannot inquire nor inflict the forfeitures limited by the Statutes because thereby no power is given unto him Forestallers IF any buy or cause to be bought any marchandize victuall or other thing comming by land or water towards any faire or market to be sold in the same or toward any Citie Port Haven Creeke or rode of this Realme or Wales from any part beyond the Sea to bee sold Or shall make any bargaine contract or promise for the having or buying of the same or any part thereof before it shall bee in the market faire citie port c. ready to be sold Or shall make any motion by word letter message or otherwise to any person for inhaunsing the price or dearer telling of any of the said things Or else diswade move or stirre any person comming to the market or faire to forbeare the bringing of any of the things to any faire market cuie c. to be sold shall bee judged a Forestaller Regrator IF any shall Regrate or get into his possession in any faire or marked any Corne Wine Fish Butter Cheese Candles Fallow Sheep Lambes Calves Swine Pigs Geese Capons Hens Chickens Pidgeons Conies or other dead victuals whatsoever that shall be brought thither to be sold and doth sel the same againe in any faire or market holden in the same place or in any other faire or market within foure miles thereof shall be reputed a Regrator Ingrosser IF any get into his hands by buying contracting or promise taking other than by demise grant or lease of Land or tythe any corn growing in the siâ—lâ—s or any other corne butter cheese fish or other dead victuall within England to the intent to sell the same againe shall be taken an unlawfull Ingrosser They are all linked together in this Statute and the punishment of them equall viz. 1. Offence imprisonment for two moneths without basle and forfeiture of the value of the goods bought c. 2. Imprisonment for one halfe yeare and lose the doable value of the goods c. 3. Offence pillorie in the place where hee dwels forfeiture of all his goods and cattell which he hath to his own use and imprisonment during the kings pleasure By this Statute no expresse power is given to Leets to inquire of these offences or any of them whereupon much doubt hath arisen and much neglect insued in not charging the suitors to present the offenders and forestallers and Regrators at Tournes and Leets the rather for that M. Kitchin in his booke of that subject and in the particulars
made void But for that the dearth and plentie of Cheese Butter Capons Hens Chicken and other victualls necessarie for mens sustenance were many times inhaunsed and raised by the covetousnesse of the owners by occasion of ingrossing and regrating the same 25 Hen. 8 cap. 2 It was 25 H. 8 cap. 2. provided that upon complaint of any such inhaunsing the Lord chancellor of England and others therein named should have power to see and taxe reasonable prices upon such kind of victualls to be sold in grosse or by retaile and Proclamation to bee thereof made under the great Seale and those prices so taxed to be observed upon such paines as by the said Proclamation should be declared But this Act should not be hurtfull to Maiors Sheriffes Bailiffes or other officers of Cities Boroughs or Townes-corporate nor to any other having authoritie to set prices c. Nota the power of a Leet is not abridged by any of these Statutes but rather declared and explained Horsebread c. IF any Baker in any Citie Towne corporate 〈◊〉 Jar. â—1 oâ— Market towne shall make or sell any Horse-bread which is not of lawfull assize and reasonable weight after the price of Corne and Graine in the market adjoyning Or if any Hostler or Inholder dwelling in any Citie c. shall make horsebread in his hosterie or without Or shall not sell their horsebread and their hay oates beanes pease provender and all kinde of victuall both for man and beast for reasonable gaine having respect to the prices in the markets adjoyning without taking any thing for litter Or if any Inholders of Hostlers dwelling in any throughfare towne or village being no citie towne corporate or market-towne where any common Baker having beene an apprentice at that trade by the space of seven years is dwelling who may by this Statute make horsebread in his house shall not make it sufficient lawfull and of due assize according to the said prices of graine and corne Or shall offend in any thing contrary to this act All stewards of Leets have power to enquire heare and determine all the said defaults and offences of the said Hostlers and Inholders And the punishment to be insticted is for the 1 Offence to be fined according to the quantitie of the offence 2 Conviction imprisonment for one moneth without baile c. 3 To stand in the pillorie without redemption of money 4 After judgement of the pillorie given hee shall be forejudged from keeping any Inne againe Unwholesome or corrupt Victuall IF any Butchers Fishers or other Victuallers do sell any manner of corrupt victuall not wholesome for the body of man If any butcher shall sell carnes sustentatas vel de morte morina any contagious flesh or that dyed of the murrain 51 Hen. 3. Or shall kill and sell the flesh of any Bull unbaited or of any cattle killed suddainly upon the drift or with their breath doe puffe and blow up meat whereby it prooves deceitfull in the sale and may bee unwholesome it is presentable Flawing of Hides c. NO Butcher by himself or by any other person 1 Iac ca. 22. shall gash slaughter or cut any hide of any Oxe Bull Steere or Cow in flaying thereof or otherwise whereby the same bee impaired or hurt under paine of 20 pence for every hide so gashed c. 1 Iac. c. 22. No Butcher shall water any hide except only in the moneths of Iune Iuly and August nor shall offer or put to sale any putrified or rotten hide upon paine of every hide so watered putrified and offered to be put to sale three shillings foure pence Calves under five weekes old NO Butcher or other person or persons shall kill any Calfe to sell being under five weeks old upon paine for every Calfe so to be killed and sold six shillings foure pence No Butcher shall by himselfe or any other person use the craft or mysterie of a Tanner during the time that he shall use the craft of a butcher upon paine for every day six shillings eight pence Cookes INquirie is to be made of Cookes that seeth flesh or fish with bread or water or any otherwise that is not wholesome for mans bodie or after that they have kept it so long that it loseth its naturall goodnesse debitam naturam and then reseeth it and sell it 51 Hen. 3. Malt-maker THe Maltmaker the only Syre of an unruly Alchouse 21 Edw. 6.10 revived 27 Eliz 14. by his excesse in making of too much Continued 1 Iac. 25 Continued 21 Jac. 28 Continuâ—â— 3 Car. 4. and his slights and deceipts in his hasty making of bad and corrupt malt is as ill a member as any his frauds and slights are in the preamble of this Statute described to be such in the making and drying of his malt that no wholesome drinke for mans bodie could bee thereof made to the perill and danger of his Majesties subjects the losse and decay of the Common wealth and the utter impoverishment of Brewers for that they could not make so much of fifty quarters of malt being evill dryed and made as they could of forty good If therefore any person shall make any barly malt the moneths of Iune Iuly and August only excepted but that it shall have in the Fat and Floore steeping and sufficient drying thereof three weeks at the least and in those moneths 17 dayes at the least without which it cannot bee wholesome for mans body shall forfeit for every quarter of Barly malt two shillings Or if any shall mingle any malt not being well and sufficiently made or being made of mow-burnt or spired barlie with other good malt and put the same to sale shall forfeit for every quarter two shillings If any person shall put to sale any malt not sufficiently and well trodden rubbed and fanned whereby there may bee conveniently fanned out of one quarter thereof halfe a peck of dust or more every such person shal forfeit and lose for every quarter so put to sale twentie pence One moitie of those forfeitures are to accrew to the King and the other to the partie that will sue for the same to be sued or presented within one yeare Of these abuses every Steward of Leets hath power to heare and determine aswell by presentment of twelve men as by accusation or information of two honest witnesses and the Bailiffes and Constables of every borough market towne or other towne where such malt shal be made or put to sale within any of the said townes and finding the same with the advice of one Iustice of peace shall cause the same to be sold at reasonable prices and under the price of the market as to his discretion shall seeme expedient Millers IF any Miller take excessive tole he ought to take but the twentieth or twenty fourth grain according to the custome of the place and to the strength of the water or if hee changeth or altereth the graine which he hath to
three miles of London shall upon paine of forty pound whereof one halfe to the King the other to the partie that will sue for the same for every yeare that they make default shall yearely appoint and sweare two three or more sufficient and skilfull men to be searchers and sealers of leather within their limits and one of them shall keepe a marke or seale prepared for that purpose and shall seale such leather as they finde sufficient and none other That it shall be lawfull to any of them to seiz all such leather and ware as shall be insufficiently tanned curried made or wrought contrary to any provision in this act and shall retaine the same untill it be tryed as hereafter is mentioned viz. That every such Mayor c. or Lord of libertie or his sufficient deputie after notice given to him of any such seisure shall with all convenient speed appoint six honest and expert men to trie whether the same wares so seized be sufficient according to the intent of this Statute or not the same tryall to be made openly upon some market day within fifteene dayes at the farthest next after such seisure upon the oaths of the tryers To forfeit for not appointing such tryers sive pound The tryers if they doe not proceed and doe their duties therein without delay doe forfeit for every default sive pound Every searcher and sealer of leather which shall resuse with convenient speed to seale any lawfull leather shall for every such offence forfeit forty shillings For receiving any bribe or exacting any fee for execution of his office other than is limited by the statute for searching sealing and registring of leather 20 pound For refusing after election to execute the office 10. pound Stewards of Franchises and Leets have power to heare and determine all the offences against this Act and also by their discretions to examine all persons suspected to offend this Statute or any parcell thereof Cloth makers Fullers Sheeremen Taylers Shoomakers IF any of those trades shall retaine to worke in any of their trades any unmarried person as a journey man to worke by the day â— Ed. 6 22. or taile work or by the great for any lesse time than for one whole quarter of one whole yeare the person or persons offending shall suffer imprisonment for whole moneth and forfeit forty shillings for every offence If any Iou roey man of any the said mysteries being required by any persons useing the said trades This is fully repealed by 5. Eliz. c. 4. or any of them to serve by the quarter of a yeare halfe a yeare or whole yeare upon such reasonable wages as betweene them shall bee agreed and in case they cannot accord then for such wages as shall be adjudged and decreed by one Iustice of peace Maior Alderman Bailiffe Portreeve Constable or Tethingman of the Shire Citie Towne Borough Village Hundred Wapentake or Tything where any such journeyman shall be required and shall refuse to serve shall suffer imprisonment for one whole moneth and forfeit for every time 20. shillings All and every the said Tradesmen that shall have three apprentises in any of the said occupations shall keepe one Iourneyman and forevery other apprentise above the number of three one other Iourneyman upon paine of every default ten pound the one halfe to the King the other to the partie that will sue for it All Stewards of Leets inter alios hath power to punish and correct all and every offenders contrary to the tenour of this according to such presentments as shall bee made before them The second Mechanicke art of M. Linwoods division is Armatura and Sub hac arte saith he continetur ars Sagittariorum Balistariorum And they fitlie succeed here to be inquired of in their due order Artillerie FOr maintenance of Sagittarie Discipline an exercise famous and honourable to this Kingdome for many victorious battels and for debarring and repressing of unlawfull games 33 H. 8. c. 9. the Statute of 33. Hen. 8. ca. 9. was ordained which provideth that such as be of tender age bee brought up in the knowledge of Shooting and every person shall provide and have in his house for every man child of the age of seven yeares and above till hee come to the age of seventeene yeares a bow and two shafts to learne and induce them under paine if they want them one moneth together of six shillings eight pence incurred against the master After seventeene yeares every such young man shall provide a bow and foure arrowes at his owne cost and if under threescore yeares taking wages and being able to shoot hee shall want a bow and foure Arrowes by the space of one moneth together shall forfeit for every such default six shillings eight pence No man under the age of 24. yeares shall shoote at a standing pricke except it be at a rover whereat he shall change at every shoot his marke upon paine for every shoot foure pence Nor at any marke of eleven score yards or under with any prick shaft or slight under pain of six shillings eight pence for every shoot That Butts shall bee made in every Citie Towne and place by the inhabitants according to the Law of ancient time used and maintained and continued by them upon paine for every three moneths 20 shillings Stewards of Leets have power to heare and determine the offences and at their discretion to examine all persons not having bowes shifts and arrowes Unlawfull Games THis good Law 〈…〉 as it injoynes a lawfull so it inhibiteth an unlawfull exercise especially unlawfull games which are ingendred and â—â—rsed by idlenesse the mother of all vice the 〈◊〉 of youth decay of trades and thine of all common weale It is therefore enacted That none for his gaine and â—â—ere shall keepe or maintaine any common hâ—â—â—â—alley or place of Bowling Tennis Dicing Carding or any other manner of game prohibited by any Statute nor any hereafter to be invenced found or had â—â—on paine for every day 40. shillings Every person haunting any of the said houses and places and there playing forfeiteth for every time six shillings eight pence All Constables and Bailiffes c. shall make search every moneth for unlawfull games as well within franchises as without or in default thereof they forfeit for every moneth not executing the same forty shillings No artificer husbandman handicrafts man apprentise journeyman or servant of artificer marriners fishermen waterman or any serving-man shall at any time play at any the said unlawfull games but onely in the time of Christmas servants to play in their masters houses and in their presence No person shall bowle in any open place out of their garden or orchard upon paine of six shillings eight pence But noble men and every one that may dispend in lands or other profits to the yearely value of an hundred pound may permit their servants and others comming to their houses to play within the
after him or else for ease of himselfe without huy and cry doth wave or derelinquish therefore called by the Civilians bonaderelicta the goods feloniously stoine by him or any part thereof and slyeth away the King or the Lord is to have it unlesse the owner of them doe make fresh suite after the Felon to attaint him for thoâ— goods which if he doth hee shall have his goods againe notwithstanding the wayving and seizing â—ot note if Goods be stoine and wayved yet the owner may rescise them 20 yeares after if they were not formerly seised by an officer of the King or the Lord of the liberty Fugam fecit IF any upon Indictment of murder before the Coroner be found quod sugam fecit or if any be indicted of Felonic and acquitted and found that he sled he forfeits his goods to the King and the Lord may claime them by Charter but not by prescription The old law Si quis post fugam redierit inno centiam suam purgaverit nihilominus facultates suae apâ—d fiscum remanebunt Exigent IF Exigent bee awarded against one Indicted in Felony he forfeiteth his goods though he be after acquitted of the Felonie the King shall have his goods and the Lord by Charter but not prescription Outlawes ALL persons outlawed in trespasse debt or other personall actions doe forfeit their goods to the King and the Lord may have them by Charter Cleri Convicti ALL Clerks convict men that have the benefit of their Clergie and doe undergo the burning in the hand called by the common law Cauterization doe forfeit their goods notwithstanding By-Lawes ANy By-lawes for the common weale may be made in a Leer and are good and will lye against those that do not consent as to make Cawseyes Highwayes Bridges and such like 44 Ed. 3. so 19. But a By-law to repair a Church binds none but such as do assent vid. Co. 5. f. 63. A Leer may make by-lawes the Lord by prescription may distreyne for the Amerciaments and sell the distresse For the King may so doe and the Leet is the Kings although the Lord hath the profits Brooke Leet 34. Prescription 40. The Statute for view of Franck-pledge made the eighteene yeere of King Edward the Second FIrst you shall say unto us by the oath that you have made if all the Iurors that owe suite to this Court be come and which not And if all the chiefe pledges or their dosens bee come as they ought to come and which not And if all the dosens be in the assize of our Lord the King and which not and who received them And if there be any of the Kings villaines fugative dwelling otherwhere than in the Kings demeanes and of such as be within the Kings demeans and have not .hiden a yeare and a day And if there be any of the Lords villaines in Frankpledge otherwhere than in this Court Of customes and services due to this Court withdrawn how and by whom and in what Baylifes time Of Purprestures made in Lands and Waters to annoyance Of Walles Houses Dikes and Hedges set up or beaten downe to annoyance Of Bounds withdrawne and taken away Of Wayes and Paths opened or stopped Of Waters turned or stopped or brought from their right course Of breakers of Houses and of their receivers Of Petie Larens as of Geese Hens or Sheafes Of I heeves that steale cleathes or of Theevs that doe pilfer cloathes through windows and walls Of such as goe on message for theeves Of Cryes levied and not pursued Of Bloodshed and if frayes made Of escapes of Theeves or Felons Of persons outlawed returned not having the Kings warrant Of Women ravished not presented before the Coroners Of clippers and forgers of Atoney Of Treasure found Of the Assize of Bread and Aleâ—roken Of false measures and of Bushels Gallons Yards and Ells. Of false Ballances and Weights Of such as have double measure and buy by the great and sell by the lesse Of such as continually haunt Tavernes and no man knoweth whereon they doe live Of such as sleepe by day and watch by night and fare well and have nothing Of Cloth-sellers and Curriers of Leather dwelling out of Merchant townes Of such as take Church or Churchyard and after depart without doing that which belongeth thereâ—ntâ— Of persons imprisoned and after let goe without maineprise Of such as take Doves in Winter by doorefals or engins And of all these things you shall doe us to wit by the oath that you have taken A note of the Statutes which are repealed altered or expired since the time wherein M. Kitchin wrote which I thought fit to set down in regard many of them I have observed are frequently given in charge till this time The Statute of Cordweyners 5 Eliz. ca. 8. Repealed 1 Iacob 22. The Statute of Crow-nets for the destruction of Crowes Rookes and Choughes 24 Hen. 8.10 Expired 8 Eliz. 15. The Statute of Hats and Caps 13 Eliz. ca. 19. Expired 39 Eliz. 18. The Statute against Riots 1 Ma. ca. 12. continued 1 Eliz. 16. during the Queens life untill the end of the next Parl ament following Expired yet Riots are in juirable as an offence at the Common Law The Statute of Wynes 7 Ed. 6. ca. 5. Repealed in part 1 Iac. 25. as is before declared The Statute touching Horsbread 31 H. 8.41 Repealed by 22 Iac. Reg. 21. The Statute of Apparell made 24. H 8. ca. 13. Repealed 1 Iac. 25. The Oath of a Constable set forth by M. Kitchen with the additions mentioned in the Statute of 21 Ja. which oath containes a short Epitome of the dâ—tie and office of Constables YOu shall sweare that you shâ—ll well and truly serve our Soveraigne Lord the King in the office of Constable for this yeare now to come you shall see that his Majesties peace be well and truly kept according to your power and you shall arrest all those whom you shall find committing riots debates or affrayes to the breach of the peace you shall endeavour your self according to your knowledge that the Statute of Winton For watch huy and cry and the Statutes made for the punishment of sturdy Beggers Vagabonds Rogâ—â—s and other idle persons comming within your libertiâ— be duely put in execution and that the offenders be duely punished you shall also upon complaint made unto you apprehend all Barrertois and Riotous persons and all Felons and if any of them doe make resistance with force and mâ—ltitude of Malefactors you shall make outcrie and parsue them untill they be taken And you shall looke and search after such persons as use unlawfull games and you shall have regard unto the maintenance of Artillerie And you shall well and truly execute all such proces and precepts as shall be directed unto you from his Majesties Iustices of peace of the Countie or any his Highnesse Iudges Iustices or Officers whatsoever and you shall well and truly present all bloodsheds outcries affraies and rescues happening or
every private person The end of all warre should be peace bellum geritur ut pax acquir atur 1 It is just cause of warre when publike negotiation and commerce is interrupted or disturbed and for recoverie of things wrongfully and by force taken fiom us by forraigne enemies 2 Or if any shall goe about to usurp upon the Kings right of dominion in any of his kingdoms It is just cause of warre After that David by Gods direction went up to Hebron and was anointed king over the house of Iudah upon the death of Saul he maintained a long warre against Ishbosheth the sonne of Saul for usurping the kingdome of Israel 2 Sam. 2. The revenge of an injurie or disgrace dispitefully done either to a Prince or to his Embassadors is likewise a good cause of warre when Naash the king of the children of Ammon dyed and Hanun his sonne succeeded in his stead David sent messengers to comfort him upon the death of his father their entertainment was not suitable to their errand Hanun by the advice of his Princes tooke Davids servants and shaved them and cut off their garments in the midst a natibus usâ—â— ad pedes and so sent them away For this great disgrace and abuse the text faith grandem contumeliam sustinuerunt David did justly wage battell against the king of the Ammonites Chro. 1.19 He did the like against Sheba the sonne of Bochri a man of Belial for blowing a Trumpet and solliciting the men of Israel to revolt from David to him Samuell 2. chapter 20. â—â—â—y other particulars might be here instanced Next how farre the preeminence of a king as to life and member is to be considâ—red Life and member considerable by the common and statute lawes specially by the common and Stature lawes of this kingdome by the common and positive lawes of England The subjects are bound by their legeance to go with the king and by the Commandement of the king in his wars aswell within the Realme as without and this doth copiously appeare by severall statutes which seeme to bee but declarative of the common law as 1 Ed. 3. cap. 7. which mentions the conveyance of souldiers into Scotland Gasconie or elsewhere 18. Hen. 6. cap. 19. which maketh it felonie If any Souldier retained to serve the King in his wars doth not goe with or doe depart from his Captaine without licence the preamble of the Statute tels us that the Souldier so doing did as much as in them was decay the honour and reverence of the king And by the Statute of 7. Hen. 7. cap. 1. Forasmuch as the offence of departing or not going did stretch to the hurt and jeopardie of the king the nobles of the Realme and all the Common weale thereof therefore he or they so offending should not injoy the benefit of Clergie By the Statute 11. Hen. 7. cap. 1. It is expressed that the subjects of this Realme are by reason of their allegeance bound to serve the Prince from the time being in his wars for the defence of him and the land against every rebellion power and might reard against him either within the land or without and this statute together with some others were adjudged Trin. 43. Eliza. to be perpetuall acts and not transitorie for the kings time only wherein they were made As peace is the true end of warre so peace must be preserved that warre may be avoided In the times of peace there must bee preparations for warre by causing musters and martiall meetings to be assembled at times convenient And therein the Lievtenants their Deputies of each severall Countie with Muster-masters and other subalterne officers have a speciall interest of imployment and therefore provision was made 4. 5. P. M. for the better ordering of Musters Captaines and souldiers In the time of peace the common and municipall law of this kingdome provides for suppressing of all rebellions insurrections and rietous assemblies To which end the king commits the custodie of each countie to an officer very ancient with us called a Sheriffe who for the service of the king and peace of the countrey hath power to raise the power of his countie And every subject is bound to attend him as the kings deputie in causes of publike service warranted by the lawes and this officer is to dwell in his proper person within his Baylywicke that he may the more readily attend the kings service The second point is terrene honour Terrene honour what it is and herein I must walke warily passibus aquis First must be determined what is meant by terrene honour Some would have it to be the outward worship and ceremoniall honour that wee can doe in this world to the king next to the service of God If that were only intended by these words it were but a shadow in regard of substance for in devoting our life and blood is comprehended the highest pitch and streyne of honour that might be Our Saviour Christ his words Matth. 6.25 Is not life more worth than meate and the body than raiment will fully satisfie us that the life of man is above all worldly riches and honours and therefore something else must be conceived out of these words more than a shadow or ceremonie By the first commandement of the second table in the subdivision of the persons to whom honor is due there is in the opinion of many Divines a kind of particular honor or esteem to be ascribed to a man who is more wealthy than his neighbour in regard of the talent of terrene riches wherewith God hath endowed him and thereby enabled him to supply the King and the common weal by rendring his respective dues and duties unto them in a larger proportion than other persons who are inferiour in their worldly meanes Dat census honores Then sithence all riches wealth and substance are called terrene quiae terris terrenis accrescant because they proceed and have their being out of earth and earthly things and are the causes of particular honour and esteem and of distinguishing the degrees of men as husbandmen Yeomen Gentlemen Esquires and the like and also of cradesmen both of Merchandize and manufacture according to the customes of this Kingdome It will follow by good consequence that as the King is to bee honoured and obeyed with life and member so with earthly substance according to the demension thereof and the degree of each mans earthly honour Saint Paul in the generall cleares this point of prerogative jure divino Romans 13. Omnis anima potestatibus sublimieribus subdita sit c. Let every soule bee subject to the higher power For there is no power but of God verse 2. whosoever therefore resisteth the power resisteth the ordinance of God And the Apostle pursues it with Ideo necessitate subditi estote c. verse 5. Wherefore yee must needes bee subject not only for wrath but also for conscience sake Verse 6. For this cause pay
in the multitude of counsellors there is safetic Prov. 11.14 Every purpose is established by counsell and with good advice make warre Prov. 30.18 Moses had Iethro and Aaron Ioshua the sonne of Nun his successor Caleb and Eleazar the high priest for his privie counsellors David had his succession of counsellors Samuell the prophet Ionathan whose love to him was wonderfull Abiathar the priest and Nathan also a prophet with many others To return to our owne nation king Ine had his Cinredus whom hee calls his father Hedda and Erkenwald his bishops with many others Alfred had his Plegmund Archbishop of Canterbury Werefridus Bishop of Worcester and others Athelstane edicted his lawes Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum consilio by the counsell of his Archb. and other Bishops and so successively the kings of England ever had as before their privie counsell such and so many as the prince shall think good who doe consult daily or when neede is of the weighty matters of the Realme to give therein to their prince the best advice they can The prince doth participate to them all or so many of them as he shall thinke fit such legations and messages as come from forraigne princes such letters or occurrents as be sent to himselfe or his secretaries every Counsellor hath a particular oath of faith and secrecy administred to him before hee bee admitted a privie counsellor To shew the extraordinary regard and royall use of the kings counsell The regard â— the Privie counsell Let us looke backe upon the case of 5. Hen. 4. upon an agreement for an exchange had for the Castle of Barwick between the king and the Earl of Northumberland wherein the king promised to deliver the Earle lands and tenements to the value of that Castle by these words per avise assent des estates de son Realme son Parliament c. By the advice and assent of the estates of his Realm So as the Parliament be before the feast of S. Luke or otherwise by the assent of his great Counsell and other estates of his Realme whom the king shall assemble before the said Feast in case there be no parliament before c. as by the instrument thereof dated at Lichfield 27. Aug. 5. Hen. 4. remaining in the Tower may appeare To this counsell the Oracles of the Common law the grave and reverend Judges Leges loquentes Reipublicae God grant in all Successions they may be so have had their resort from time to time in all ages for advice and directions in their proceedings aswell in criminall causes as in matters of right and propertie as it was observed by the learned Lord Chancellor I will touch but two which are cited by that honourable Judge in cases of propertie Thomas Vghtred Knight brought a Forme-don against a poore man and his wife They came and yeelded to the demandant which seemed suspicious to the Court the matter being examined judgement was stayed because it was suspicious And Thorp said that in like case of Giles Blacket it was spoken of in Parliament And faith he wee were commanded that when any like case should come we should not goe to judgement without good advice wherefore sue to the councell and as they will have â—s to doe we will and otherwise not in this case 2. Greene and Thorpe were sent by the Judges to the Kings Councell where there were twentie foure Bishops and Earls to demand their advice touching the amendment of a writ upon the Statute of 14. Ed. 3. cap. 6. which was an Act made for amending of Records defective by misprision of Clerks By the advice and assent of this Councell is that great and common Councel solemnly called The forme of the writ of Summons to the Sheriffe followeth in these words Rex viz. S. c. Quia sie avisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos Statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud Civitatem nostram W. c. teneri ordinavimus Et ibidem cum praelatis Magnatibus et Proceribus dicti Regni nostri colloquium habere et tractare Tibi c. wherein these things are worthy observation 1 That this great Court is assembled by the power of the King expressed in his writ under his great Seale with Teste meipso 2 This power is extended with the advice and assent of his Right Honourable privie councell His grace favour and providence by calling a Parliament to parlee and treat with his Lords spirituall and temporall as also with his commons who by their Knights Citizens and Burgesses as their respective proxies elected by and with the popular suffrage of the Freemen of every Countie Citie Towne or Borough do make up the body of that great court and doe there meet to yeeld and consent unto such matters as shall be there treated and established 4 The subject of a treatie or parliament That is certaine difficult and urgent occasions concerning his Majestie his royall state and the defence of his kingdome and Church This high court consisteth of two honses The higher or upper where the King and his Barony or Nobilitie spirituall and temporal do take their place And the lower house where the Knights Citizens and Burgesses are assembled for the Commons consisting when M. Crompton wrote his jurisdiction of Courts of 439. persons The King had the only power to appoint it his gracious favour is to give life and beginning to it by his owne personall accesse in most Royall state And as sinis coronal opus hee crowneth and perfecteth all the Acts of this great assembly with his Royall assent without which no bill can passe nor law be made Though there bee no written Acts of parliament extant before the raigne of Henry the third yet some have sollicitously laboured to draw the Antiquitie of this thrice excellent court of Parliament from King Arthurs time to king Ine Offa Ethelred Alfred and others before the Conquer our with a successorie continuance untill this Present age and collected and inferred that the words used by K. Inas in the proem of his laws exhortatione c. Omnium Aldermannorum mcor'um seniorum sapientum Regni mei And the like words of Offa and other kings in the time of the heptarchie and that the words of Conventus sapientum used by King Edward the sonne of Alfred the words of Conventus omnium Nobilinm sapientum used by King Athelftane cum consilio sapientum used by king Edgar Haec instituerunt Rex sapientes mentioned of King Ethelred and the like of other Kings should include the Lords and Commons of the parliament whether this most eminent Court were in those ancient dayes assembled and exercized in that manner as now it is dubium est dubitare liceat doubtfullnesse is a fluctuation of the minde which in historicall matters of indifferencie that concerne
King in an unsteady and unsetled course of Government In the ninth yeare of his Raigne Anno 1224 He granted to the Nobility and Commons such Lawes and liberties as had bin used long time before And caused Charters to be made one called Magna Charta the other Charta forestae which he sent into every County The praeamble of Magna Charta doth set forth The two Charters granted 9. Henry 3. That to the honour of Almighty God the advancement of holy Church and the amendment of the Realme The King of his meere and free-will did give and grant to all Arch-Bishops Bishops c. Earles Barons and to all of his Realme the liberties following to bee kept within his Kingdome of England for ever which grant containeth in all 37. Chapters In the twenty ninth the greatest liberty of the Subject was granted Nullus liber h◠me c. viz. No Free-man shall be taken or imprisoned or be disseised of his freehold or liberties or free customes or be out-lawed or exiled or any otherwise destroyed Nor wee will not passe upon him nor condemne him but by the Law of the Land wee will sell to no man we will not deny nor deferre Iustice or right Here every word is a sentence grande in grano a weighty matter as I may terme it in the continent of a graine Herein is contained that eximium quoddam our Nationall liberty before cited And an epitome of so much of lex terra in the generality as concernes the Kingly office of Protection Grant of a Fifteenth In the 37. and last ch The Clergie Earles Barons Knights Free holders and others his Subjects did give unto the King in respect of both those Charters the fifteenth of all their moveables And the King did grant unto them on the other part that neither he nor his heires should procure or do any thing whereby the liberties of that Charter should be infringed or broken This grant of Magna Charta though it carries the forme of a meere Charter ex mero motu spontane a voluntate as it was the use at that time and long time after yet is it a Paliamentary grant and Statute and is called the great Charter though little in it selfe in respect of the weighty matter comprised in it in few words It is the fountaine of all the fundament all lawes of the Realme and the only basis and ground cell which supports the superstructure of all the Lawes and liberties of the Subjects And it is but a confirmation or restitution of those not written Lawes before mentioned Would any man thinke it possible that this Magna Charta could ever bee violated by the same hand that made it The King was young milde and gracious but easie of Nature a sin not in it selfe but by accident He was happy in his Vnkle the Earle of Pembroke the guide of his infancy but unhappy in Hubert de Burgo his Iusticiary and others Those liberties redeemed with the price of a fifteenth the Subjects had not long injoyed and little fruit of future freedome more than for the present like a glimmering sunne-shine in an unconstant calme had this common people by this grant Eft-soones the Clouds returne malum in malum ingruit The young King having newly attained the Age of twentie one yeares by the evill Counsell of his Chiefe Iustice Hubert at a meeting at OXFORD in the twelfth yeare of his Raigne did by open Proclamation frustrate and cancell his former Charters made in the ninth yeare of His Raigne under pretence that hee was under the power or ward of others So it followed that whosoever would injoy the liberties before granted must purchase their Charters under the Kings new Seale at such a price as the Iusticiar should award This was greevously taken by the Lords and COMMONS in so much as the same yeare the BARONS supplicated the King to restore the Charters which hee cancelled at Oxford or else they would recover them by the sword It was most disloyall in them to be assertores libertatum and to enter into competition with the King with Comminations of the sword Bracton who wrote long before left better Counsell behind him in such things as concerne the Act of the King Si ab eo petatur cum breve non currat contraipsum if any thing be requirable from him sithence he is lyable to no action Locus erit supplicationi quod factum suum corrigat emendet He is to be supplicated that he would reforme and amend his doing which if hee doe not Satis ei sufficit ad paenam quod Deum expectet ultorem It is punishment enough to him to expect the Lords revenge Observe what followed in this Kings time whilst he gave over the raines of his rule to young unseasoned giddy braines some of them alyens and strangers the gravest Counsellors being discountenanced the Barons falling into factious ruptures and the repining Commons into discontented rebellions The whole Monarchy languished all things were disordered and out of frame Almighty God looking downe from Heaven upon the vacillation and incertitude of this Vicegerencie under him upon earth exerciseth his owne supremacy addresseth one of his greatest Messengers of indignation famine which raged with that violence Claus An. 42. Henry 3. That the King was inforced to direct writs to all the Sheriffes of Shires ad pauperes mortuos sepeliendos famis inedja deficientes And it is observed fames praecessit sequutus est gladius tam terribilis ut nemo inermis securè possit provincias pervagare The Civill brandishments of the sword followed every where the fury of the Famine In this Nationall distresse silent leges Nay vix legibus tempus aut locus Scarce was there time or place left for clayme of liberties or execution of laws Sure it is the King and Commons had but little ease whilst his absolute power was participated not deligated to his great ones To recount the various troubles and turmoyles of his long and unsetled raigne were the work of a sad and sorry Hystory Afterwards it pleased God who hath ever a particular and tender care of Princesper quem reges regnant Principes dominantur towards the latter end of his Raigne to restore the King to his right and his tyred Subjects to their naturall obedience Hee had the happinesse to call a successefull Parliament at Marleborough 18. of Novem. 52. of his Raigne 1267. and therin amongst many notable Lawes enacted He solemnly confirmed the former Charters in all their Articles and strictly injoyned the observation of them to be inquired before the Iustices of Eire in their Circuits and before the Sheriffes in their Counties when need should be The King seeing his former errors now began to ballance his Government with Praemio paena reward and reprehension and himselfe with an equall hand to hold the scale He laboureth to reforme all that was amisse The seats of judgment and Counsell he supplyed
was presented by the Peeres and Commons unto his Majestie in their petition of right concerning diverse rights and liberties of the Subjects before mentioned which had bin intrenched upon touching their lives persons and estates Whereupon his Majesty did fully freely and graciously confirme in all points their said petition of â—gnt with Soit Droit fait come est desire And I daâ—e boldly say His Royall goodnesse hath beene of himselfe most vigilantly carefull and tender to observe it It is said before that the Law is the Guardian of liberty The Law must bee under wardship too Who be the Law Wardens who then be the Law-Wardens The King originally is intrusted under God with the custody of the Lawes under him the learned and Reverend Iudges are interessed in the Curator-ship of the Lawes and in them of the lives liberties and estates of the whole kingdome And at their first investiture into their places they take a solemne oath incident to their great offices By that oath they ingage themselves as fe-offees in trust to Minister true right betweene King and people and to execute Iustice to the people according to the Lawes of the Land and thereby and by receiving the weighty trust from and under him for the custody of that inestimable Iewell the Lawes they are to acquit the King of so much of his oath I cannot here forget some old verses Realmes have rules and Rulers have a syse Which if they keep not doubtlesse say I dare That eithers greefes the other shall agrise Till the one be lost the other brought to care I will not Comment upon them they were written upon a Subject of 240. yeares a gone and a bad sample thereof hath hâ—pned in our times Lawes are the syse of rule and government By which the opinions and judgements of our twelve Iustitiars must bee weighed and guided they are the Subjects birth-right and inheritance They are the golden ring by which the King at his Coronation is politically espowsed to the Common-Weale and have bin enameld with the bloud of many Millions and Myriads of soules Woe be therefore unto them that have been are or shall be the violaters and betrayers of that sacred trust What must they be that will render themselves guilty of so haynous a crime Surely none of Iethro his Counsellors Not men of courage nor fearing God nor loving Truth nor hating Covetousnesse They must be in their conditions Tyrants haters of Law for having once broken the lore of Law they feare to be tryed by the plumb-line of the Law And then followes Quod timent oderunt quod oderunt destrui irritum omniò esse volunt what they feare they hate and what they hate they would utterly destroy Oderunt impij omnia Disciplina vincula legem â—yrannum esse judicant Moller in Psa 139. The wicked hate all bonds of Discipline and condemne the Law to be a Tyrant But their guerdon is Qui peccant contra legem lege plectentur Offenders or Subverters of the Law shall have their demerited punishment by the Law It is said of sacrilegious Church-robbers Frustra petunt auxi lium Ecclesiae c. They are excluded all benefit of Clergie that sinne against the Church The Law is the Temple or Sanctuary whether the Subject is to runne for shelter and refuge M. Saint Iohâ—s speech fol. 4â— If the Wardens of this Temple desert their Office and abjure the Sanctuary Let them expect nor fuge thither nor other but the Law to bee testem jud cem Satellitem their witnesse their Iudge their executioner And their I leave them So much for Law THe other prop or Piller of Protection is Armes Armes whereof I have sufficiently spoken before for so much as concerne the Subjects duty and legeance And for that which concernes his Majesty It is so generally knowne That I shall need to give but a touch By the Common-Law of the Kingdome No man was chargeable to arme himselfe otherwise than hee was wont in the time of the Kings progenitors S. Edw. 1. And no man was compellable to go out of the Shire but where necessity required and sudden comming of strange enemies into the Realme And then it should be done as had been used in times past for defence of the Realme Likewise the preparing men of Armes and conveying them unto the King into forreigne parts was meerely to bee at the Kings charge And howsoever in the time of Edw. 1. certaine Commissioners did incroach upon the Commons and compelled the shires to pay wages to the Preparers Conveyers and Souldiers whereby the Commons had bin at great charge and much impoverished The King did will that it should be so done no more Stat. 1. Edw. 3. cap. 5.7.1327 And 18. Edw. 3. Cap 7. It is provided That men of Armes Halberts and Archers chosen to goe in the Kings Service out of England shall be at the Kings wages from the day that they depart out of the County where they were chosen till they returne Those Statutes are but affirmations or the Common Law and are utterly destructive to the late impositions of Coate and Conduct money and such like levies in that kinde as are not warranted by common assent in Parliament By both these S. Lawes and Armes the peace and unitie of those two deare sisters the Church and Common weale are strengthened and upheld And in both these the Prince hath power of direction to make and establish lawes to raise and levie Wars and power to command the execution and expedition of them Neither of these are acted without Counsell frustra leges frustra sunt arma nisi sit consilium And it is a true rule Sanissimum consilium non fine concilio the best Counsell is from a Councel or Assembly of Counsellors And therefore the King as you heard before is attended with his Privie Councell which is a body politike unum è pluribus const tutum and no body without a head for as Forrescue fol. 30. saith Quandocunque ex pluribus coâ—st tuitur unum inter illa unum erit regens alia erunt recta This body politike whereof the King is head the autiquity and use wheâ—of I have sufficiently before remonstrated is at ended with two great Nuncioes Angelis è Caelo Iustice and Mercy They are ornamenta coronae The prâ—tious Diadems of the Kings Crowne they are columnae Majestatis the two maine supperâ—ers of regall dâ—gnity By the one S. His Iustice he hath potestatem praeveniendi and subveniendi a power by making of Lawes sending forth his Edicts and Proclamations of preventing all capitall and criminall offences all homicides rapines oppressions injuries rebellions mutinies and all greevances whatsoever either of force or frand and either against the person or estare of His Majesties Subjects And if prevention be not availeable â—â—in naturall so in Civill diseases it sometimes failes Then must his power of subveniendi be administred and that by 〈…〉 execution
of his Lawes which is twofold 1. By Castigation correction or correption of the Malefactor either by privation of life confâ—â—â—â—ion of goods mulcts and penalties and by 〈◊〉 of libertie and other corporall infliction Secondly by releeving and comforting the offended and greeved Subject with restitution or retaliation according to the nature and quality of the respective causes And this cannot bee performed wholly by himselfe in his owne person but by a subdelegation of Iudges Magistrates and Ministers And them also if he find in any of them any perverse or corrupt aberration from the rules of Iustice. He hath power and will to reprehend and chastise or else who could challenge any freedome of Protection For if the King and His Councell should as some conceive by that forecited clause of Nullus lâ—ber homo c. bee abridged from hearing and examining complaints either in causes of extraordinary consequence or against persons of greatest eminence I meane not every cause that may be regulated by ordinary Iurisdiction Then bootlesse is that royall promise in the great Charter Nulli negabimus aut differemus Iustitiam c. Then must hee needs violate his solemne oath and vow at his Coronation faciam fieri Iustitiam c. His eares must be therefore open to the crie of the poore the fatherlesse and oppressed or else he declineth the true properties of his Vicegerency under God who is refugium pauperi Psalm 99. The LORD will bee a defence for the oppressed even a refuge in the due time of trouble This Princely office of Protection is lively described in the 72. Psalme made upon Salomon Give thy Iudgement O God unto the King and thy righteousnesse unto the Kings sonne verse 2. Then shall hee judge the people according to right and defend the poore verse 4. Hee shall keepe the simple folke by their right defend the Children of the poore and punish the wrong doer Here is his Iustice of Consolation to the oppressed His Iustice of Castigation to the oppressor To that heavenly Poem of the Psalmist some allusion hath bin by an earthly Poet Protegit insontes castigat jure nocentes Defendit totum sub ditione gregem So much of his Iustice BY the other prop or pillar of his Imperiall Crowne S. his mercy the King hath 1. Potestatem remittendi 2. Potestatem dispensandi 1. A power of remission or pardon 2. A power of dispensation and both in imitation of the sacred deity of Heaven whose immediate Minister and Lievtenant the King is upon earth within his owne dominions In the old Law Moses by Gods direction did appoint unto the Children of Israel Cities of refuge as so many Sanctuaries of Mercy whether the ignorant man slayer who hated not his neighbour in times past as also the casuall homicide might flee and live But if a man hated his neighbour laid waite for him rose up against him and smote him that hee dyed and fled unto any of those Cities Then the Elders or Magistrates of the Cutie should send and fetch him thence that he might dye by the hand of the avenger Deut. ca. 19. ver 3 4 5 11 12. In this Island were heretofore Sanctuaries places of refuge for such offenders to whom the Law intended Mercy and these were in use many hundred yeares but in this last Century they were abridged by the Statute of 1. Iacobi 25. So much of all Statutes as concerne Sanctuaries or ordering or governing of Persons in Sanctuary were repealed and made utterly voyd Besides the refuge of Sanctuaries The mercie of the Law in many cases as homicide in heat of bloud without prepensed malice theft and such like did afford the benefit of Clergie And it doth at this time in a forme different from former times For now in stead of delivering the Malefactor over to the Ordinary to purge himselfe hee is admirted to read before the secular Iudge And if the Ordinary or his Deputie pronounce legit ut Clericus Then is hee to be discharged with a stigmaticall brand in his hand as a warning to come there no more and he forfeiâ—th his goods only If non legit were pronounced Then is the offenâ—â—â— to suffer death for his transgression But this kinde of Mercy is not absolute but conditionall The most perfect mercy as from God so next under him from the King is Pardon which is a French word signifying as much as pax venia or gratia and is used in the Common-Law for the remitting or forgiving of a fâ—lorious crime or other offence And it is twofold 1. Ex gratia Regis of the Kings mâ—ere grace and Clemency 2. Per cursum Legis by the course of Lawes that is according to the ancient Lawes and Customes of the kingdome Pardon of grace is againe threefold 1. Parliamentary which is called free and generall granted upon the happy close and solution of a successefull meeting of the three States The common good and benefit whereof is well and sensibly knowne to all His Majusties loving and obedient Subjects and this kinde of pardon is pleadable at all times 2. Vpon the KINGS Coronation or other grand and extraordinary solemnity But whosoever will reape the fruit hereof must at some charge within one yeare and a day sueit forth under the Kings great Seale Or else he is utterly debarred of it These two sorts of pardons are ex generali gratia to all that are not excepted therein and will take hold of the benefit thereof 3. A pardon ex speciali gratia is that which the King in some speciall regard of the person his merits and future hopes of good service or other Circumstances or in consideration upon some intelligence of the fact or manner of the conviction by any corrupt malicious or illegall proceedings doth extend and afford upon his absolute Prerogative and power And it is so far from violation that it well stands with the observation of his oath 2. Pardon by course of Law is that which the Law in equity vouchsafeth for a light offence as homicide casuall His power of dispensation is a temporary qualification of the rigor of particular lawes emollit non tollit legem as one saith It doth mollifie not nullifie a Law And as the Civill Law hath it Ille qui dispensat non tollit legem sed ex causa in certapersona vel ad tempus remittit Et dispensatio quandoque est necessaria Panorunt super decret capit proposuit Hee that doth dispence with a Law doth not abrogate the Law but for some certaine cause in respect of persons or times doth remit the rigor And dispenlation sometimes is very necessary Positive Lawes are but leges temporis if so Then are they dispensable according to the necessity of times or occasions The rigid Pharisees taxing the Disciples of Christ for that being an hungred they did upon the Sabbath Day begin to plucke the eares of Corne and to eate Our Saviour puts them two cases by way of
question Have you not read that David being hungry entred into the House of God and did eate the shew-bread which was not lawfull for him nor any with him but only the Priests Or have you not read in the Law how on the Sabbath day the Priests in the Temple breake the Sabbath Sabbatum violant sine crimine sunt and are blamelesso And then he doth absolutely convict them of ignorance If yee knew what this is I will have mercy and not sacrifice yee would not have condemned the innocents Matth. 12. ver 1. Vsque 8. If the Law of God by the mouth and judgment of his blessed Sonne was dispensable No man can deny but humane lawes which are transitory may admit a qualification Or else our Gratious Salomon cannot according to the third branch of his oath doe equity and right Iustice with discretion and mercy Observe the rule of the Common Law in this point Dispensatio mali prohibiti est de jure Domine Regi concessa propter impossibilitatem praevidendi de omnibus particularibus Et dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata Co. 11.88 No greater argument of supreme and uncontrollable Majesty than a dispensatory power for when the Common Councell of the Kingdome have enacted penall Lawes for prohibiting somethings to bee done which are evill per accidens The KING by his owne Princely power alone may either in regard of persons or times or other necessarie conting encies dispence therewith PROTECTION as it is grande opus so it hath grave onus a great Balke a lâ—rgel arthen The oâ—-stretched and puissant Aimes of this Protâ—ction 1. By Lawes 2. By Armes Are not supported and maintained without inexpressibie charge In the first S. Lawes observe in the maintenance and execution thereof the â—â—â—ries and wages of the great and reverend Iudges the fees stipends and allowances of other Ministers and Officers of Iustice his Majesties extraordinary great experce in sending abroad and dispersing his Edicts and Proclamations in all the quarters and corners of the kingdome In the second S. Armes observe no lesse if not sarre more in the reparations and constant maintenance and supply of His Royall Navie of His Ordinance Artilerie and all other munition And his assiduous preparation in the time of Perce against the occasion or expectation of Warres And all must be according to the Prayers of our own Church to maintaine the People in wealth peace and godlinesse But that wee may returne with the greater thankfulnesse to GOD Let us look back and there are not many quarters of yeares since this great worke of Protection was invaded the union of two Ancient Kingdomes disturbed The Subject with jealousies distracted the former Valour of our English hearts blounted and amated our Liberties in a desperate jeopardy of bondage And which is worst Quis talia fando Myrmidonum Dolopumve aut duri miles Vlyssis Virg 〈◊〉 l. 3. Temperet a lachrimis What flinty heart can forbeare from teares A sweet mild mercifull KING in his studious vigilancy for quenching of these flames most sensibly perplexed and indeed brought into a great strait that hee had just cause to invocate the Mercy Seate of Heaven in the language of the Kingly Prophet Angustia est mihi valde I am in a great strait 2 Sam. 24. v. 14. He was so indeed and like Ionathan and his Armour-bearer between two sharp rocks Bozez and Sench the fore-front of the one was situate North-ward the other South-ward 1 Sam. 14. v. 45. What was the cause of all these miserable tumults and turmoyles Truly our blessed Soveraigne unhappily fell upon those times wherein David complains of the Iudges Magistrates and Ministers under his subjection Psal 82. v. 1. c. God standeth in the congregation of Princes He is a Iudge amongst Gods ver 2. How long will yee give wrong judgment and accept the persons of the ungedly David by mentioning Gods pretence in the aomen ill ration of judgments endeavouring to 〈◊〉 be a tenor in their hearts adds that sharp increpaâ—â—â—n v. 2. â—sque quo judic at is iniquitâ—em c. â—o give 〈◊〉 judgment is in pronouncing of Law not to observe an equality or rule prescribed by the lawes but to give sentence pro arbitrio suo after their own will fancy and passion for no other cause but so they would have it whence that vox tyrannica that proverb sprung up Sic volo sic jubeo stat pro ratione voluntas Our will is our reason and our will â—hall command After this severe objurgation the Prophet declareth the true use and end of upright judgement Defend the poore and fatherlesse See that such as be in need and necessity have right v. 3. Deliver the outcast and pcore save them from the hand of the ungodly v. 4. And then despairing of their reformation he doth amplifie his reprehen sions against them They will not bee learned nor understand but walk on still in darknesse All the foundations of the earth are out of course ver 5. It was so in Davids kingdome and no lesse in King Charles His Great Britaine David invocated God for redresse Exurge Deus judica terram Arise O Lord and judge thou the earth v. 8. And so did King Charles God heard the prayers and humble supplications both of King and People For in ictu oculi when all conditions of this State in the out ward survey of humane judgment were most desperate and deplorable Moventur omnia fundamenta terrae Psalme 74.22 God did arise and plead or maintaine his owne cause Our gratious Iosuah by the dictates of the holy Spirit did summon his Elders called his Common-Councill or Great Congregation together â—ove 1640. to treat of the difficult and urgent affaires concerning his Majesty the State and defence of his Kingdome and the Church of England The like in his Realmes of Scotland and Ireland They have all happily and religiously met in their severall orbes the Civill and unnaturall breaches of the two disjoynted kingdomes are unanimously pacified and both more firmely reunited than ever before The issues and fruits of the Counsels and consultations of our Parliament have far sarpassed the presidents of all former ages Let the Acts Ordinances and proceedings themselves be Iudges And pray we incessantly to the throne of Heaven that God will be still present and president in the maturating of all their debates and deliberations concerning Church and State And in al such times when King Church and people are in a strait That God would arise exurgat Deus dissipentur inimici Amen Amen Amen FINIS