legem apparentem se purgare nisi prius convictus fuerit vel confessus in curia and therefore no man ought to be urged upon such difficulties unless by the express Law of the Land. The old way of Trial was first to bring in a Complaint and Witnesses ready to maintain the same and therefore both Appeals and Actions then used to conclude their pleas with the names of Witnesses subjoyned which at this day is implied in those general words in their conclusions Et inde producit sectam suam that is he brings his sect or suit or such as do follow or affirm his complaint as another part also is implied in those words Et hoc paratus est verificare For if the Plaintiffs sect or suit of Witnesses did not fully prove the matter in fact the Defendant's Averment was made good by his own Oath and the Oaths of Twelve men and so the Trial was concluded No Free-man shall be imprisoned or disseised of his Freehold or Liberties outlawed or banished or invaded but by the Law of the Land and judgement of his Peers Nor shall Justice be sold delayed or denied This is a comprehensive Law and made up of many Saxon Laws or rather an enforcement of all Laws and a remedy against oppression past present and to come And concerneth first the person then his livelihood as touching the person his life and his liberty his life shall be under the protection of the Law and his liberty likewise so as he shall be shut into no place by Imprisonment nor out of any place by Banishment but shall have liberty of ingress and egress His Estate both real and personal shall also be under the protection of the Law and the Law also shall be free neither denied nor delayed I think it needless to shew how this was no new Law but a confirmation of the old and reparation added thereto being much impaired by stormy times for the sum of all the foregoing discourse tendeth thereto Merchants shall have free and safe passage and trade without unjust Taxes as by ancient custome they ought In time of War such as are of the Enemies Countries shall be secured till it appear how the English Merchants are used in their Countries That this was an ancient Law the words thereof shew besides what may be observed out of the Laws of Aetheldred and other Saxon Laws So as it appeareth that not onely the English Free-men and Natives had their liberties asserted by the Law but also Forreiners if Merchants had the like liberties for their persons and goods concerning Trade and maintenance of the same and were hereby enabled to enjoy their own under the protection of the Law as the Free-men had And unto this Law the Charter of King John added this ensuing It shall be lawful for every Freeman to pass freely to and from this Kingdom saving Fealty to the King unless in time of War and then also for a short space as may be for the common good excepting Prisoners Outlaws and those Country-men that are in enmity and Merchants who shall be dealt with as aforesaid And it seemeth that this Law of free passage out of the Kingdom was not anciently fundamental but onely grounded upon reason of State although the Freemen have liberty of free passage within the Kingdom according to that original Law Sit pax publica per communes vias and for that cause as I suppose it was wholly omitted in the Charter of Henry the Third as was also another Law concerning the Jews which because it left an influence behind it after the Jews were extinct in this Nation and which continueth even unto this day I shall insert it in this short sum After death of the Jew's debtor no usury shall be paid during the minority of the Heir though the debt shall come into the King's hand And the debt shall be paid saving to the Wife her Dower and maintenance for the Children according to the quantity of the Debtors Land and saving the Lord's service and in like manner of debts to others The whole doctrine of Vsury fell under the Title of Jews for it seemeth it was their Trade and their proper Trade hitherto It was first that I met with forbidden at a Legatine Council nigh 300 years before the Normans times but by the Confessor's Law it was made penal to Christians to the forfeiture of Estate and Banishment and therefore the Jews and all their substance were holden to be in nature of the King Villains as touching their Estate for they could get nothing but was at his mercy And Kings did suffer them to continue this Trade for their own benefit yet they did regulate it as touching Infants as by this Law of King John and the Statute at Merton doth appear But Henry the Third did not put it into his Charter as I think because it was no liberty of the Subjects but rather a prejudice thereto and therefore Edward the First wholly took it away by a Statute made in his time and thereby abolished the Jews Tenants Lands holden of Lands escheated to the King shall hold by the same services as formerly In all alienations of Lands sufficient shall be left for the Lords distress Submitting to the judgement of the learned I conceive that as well in the Saxon times as until this Law any Tenant might alien onely part of his Lands and reserve the services to the alienor because he could not reserve service upon such alienation unto the Lord Paramount other than was formerly due to him without the Lord's consent and for the same reason could they not alien the whole Tenancy to bind the Lord without his express license saving the opinion in the book of Assizes because no Tenant could be enforced upon any Lord lest he might be his Enemy Nevertheless it seemeth that de facto Tenants did usually alien their whole Tenancy and although they could not thereby bar the Lord's right yet because the Lord could not in such cases have the distress of his own Tenant this Law saved so much from alienation as might serve for security of the Lord's distress But Tenants were not thus satisfied the Lords would not part with their Tenants although the Tenants necessity was never so urgent upon them to sell their Lands and therefore at length they prevailed by the Statute of Quia emptores to have power to sell all saving to the Lords their services formerly due and thus the Lords were necessitated to grant Licenses of alienation to such as the Tenants could provide to buy their Lands Nor was this so prejudicial to the Lords in those days when the publick quiet was setled as it would have been in former times of War whenas the Lord's right was maintained more by might and the aid of his Tenants than by Law which then was of little power The 35th Chapter I have formerly mentioned in the Chapter concerning
any Man he must go whither the King shall please to send him which is not onely destructive to the opinion of Thirning concerning the Plea but also though granted is destructive to the Reporter's Judgement in the main point For if an English man may refuse to go without Wages then is he not bound to go by any natural absolute Legiance as the Reporter would have it And as touching the second Case which is Bigot's and Bohun's Case it cleareth the same thing for it was resolved that they ought to go but in manner and form according to the Statutes then is not the ground in the absolute Legiance for that is not qualified but in the positive Statute-law which tieth onely in manner and form and that by voluntary consent in Parliament The rest of the Cases do neither conclude the main point nor the particular thing that the Reporter intendeth For he would imply to the Reader that English men were anciently used to be imprested for the Wars in France and hereunto he voucheth one Authority out of ancient Reports of Law in Edward the Third's time one Anthority in the time of Henry the Fourth and three in the time of Henry the Sixth none of all which do speak one word concerning Impresting And that in Edward the Third doth imply the contrary for the Case is that in a Praecipe quod reddat a Protection was offered by the Defendant as appointed to go beyond the Sea with the Duke of Lancaster and the Plaintiffs Counsel alledged That the Defendant had been beyond Sea with the Duke and was returned To this the Defendant's Counset answered That the Duke was ready to return again and for this cause the Protection was not allowed Yet a Quere is made upon this ground that it might be that the Defendant would not go over with him nor was it proved that he would which sheweth plainly the party was not imprested for then the thing had not been in his power to will or nill The last instance that the Reporter produceth is that of Forinsecum Servitium or Foreign Service and that seemeth to be Knight-service to be performed abroad But this falleth short of the Reporter's intention in three respects First Though it belongeth to the King yet not to him onely but to other chief Lords so saith Bracton Secondly It is not due from every English man. And lastly It is a Service due by vertue of Tenure and then the Conclusion will be That which is due by Tenure of Lands is not due by natural and absolute Legiance and so this Foreign Service arising meerly by compact and agreement between Lord and Tenant and not by the natural duty of an English-born Subject which is the thing that the Reporter drives at in all his discourse will be so far from maintaining the Reporters opinion as it will evidently destroy the same And thus the posture of this Nation in the Field remaineth regular in the rule whatever hath been said against it notwithstanding that in the very instant of Action there may be some irregularity which no doubt both was and ever will be in stormy times Nor did it conquer the Law For though War may seem to be but a sickness of the State yet being in Truth as the Vltimum refugium and onely reserve unto Law beaten to a retreat by opression it is no wonder if this motion or rather commotion that brings on the Law of Peace in the Rear be still and ever subject to rule of Law how unruly soever it self seemeth to be Now because Law imports execution and that presupposes a Trial and it a Court therefore did our Ancestors amongst other Courts not regulated by the Common Law form a Court for the service of War called the Court-Marshal or the Constables Court according as the Office of one or the other had the preheminence The proceedings herein were ordered as I said not accordiag to the Common Law for that is like the Land much distant from all other Nations and the Negotiation of this Island with other Nations as in time of Peace so of War requires a rule common to all those Nations or otherwise no Negotiation can be maintained And for this cause the proceedings in this Court were ever according to the rule of the Civil Law. The work of this Court is principally Judicial and in some cases Ministerial The first reflects upon cause Foreign and Domestick and both of those are either Criminal and such as concern the common Peace of the place of War or more civil relating onely unto private interest As touching the first of these I suppose it is no Bull to speak of a common Peace in the place of War. For a common Peace must be in each party within it self or otherwise no party at private variance can subsist within it self much less make War with the other and therefore in order unto War there must be a Law of Peace for the Trial of Offenders and punishing them for offences committed against the good Government of the War Such as are breaking of Ranks deserting the Standard running away from the Colours Mutinies Murthers Rapes Plundering-private Quarrels disobedience to command and such-like all which do bear the shew of crimes against the common Peace of the Army and the Country Of the second sort are matters concerning Quarter and Contracts in order to the government of the War saving such as are made before either part be inrolled for the War. For if a man doth covenant to serve in the War and keepth not his day at the first Rendezvouz he is to be attached by Writ at the Common Law. Causes Domestical likewise fall under the like division for whatsoever cause may be Forein may also be Domestick because the Army is ever embodied within the Kingdom and must be under the Directory of the Martial law upon the first forming thereof Now though the particular Laws of the Army for the government thereof be ordinarily according to the prudence of the General yet certain Fundamentals have been ab Antiquo made by Custom and the Parliament against which the course of Judicature must not go And as the Parliament saw need it set also particular directions as for the payment of Souldiers Wages for remedy of wastings and plunderings in their own Country and other such emergencies But the execution of all these Laws Originally was in the Marshal of the Army And because that the Army was generally dissolved or such persons engaged in such matters of controversie departed from the Army before the same were concluded therefore the Marshals Court continued in order to the determining of these matters And in continuance of time other matters also crowded into that Society although sometimes under the Directory of the Constable of England as well as at other times under the Marshal more particularly that power of determining matters concerning Torniament a sport that like a Sarcasm tickles the fancy but
Hundred was amerced for the escape but if the party slain were known to be of English Parents it was otherwise This custom lasted long after the Normans time the Dane being only changed into the Norman and was called Englishire Batteries Maimes Imprisonments and other breaches of peace were punished by Fine which they called Fightwitt Grithbrece or Frithbreck and the Delinquent ordinarily put in sureties for the peace for future time The fine was increased by the number of Delinquents joyning in the fact for if seven joyned it was a Riot and the fine was then called Flothbote If the number were five times so many viz. thirty and five then it was a Rebellion or War. Secondly the fine was increased by the time or season of the fact as in Lent or while the Army was in the field because in the first case the holy time was prophaned in the second the Countrey was more endangered when the strength was abroad and the Army might be discouraged at the news of the disturbance at home And therefore the Saxons punished this with death or fine suitable Thirdly the fine was the greater in case of the excellency of the place where it was holy ground or in the presence of great persons such as the King or Bishop Adultery among the old Germans was holden a crime of a high nature the penalty of the woman that committed that crime was death I find not what became of the man. In latter times of the Saxons it grew less penal and more common By Alfreds Law it was finable and the fine called Legierwit By Canutus the man was fined or banished the woman to lose her nose ears and her portion Incest was more penal to the man than Adultery and yet it touched not his life Robbery amongst the Lacedemonians was accounted but a trick of youth the Athenians thoughts were more severe The Germans likewise differed in their censures concerning it the Saxons punished it with death but the Angles with fine only yet Ina the King made it mortal and Canutus followed him therein and Edward the Confessor limited that punishment to thefts of twelve pence in value or above Burning of woods was finable by Ina's Law but Burglary was Felony In King Edmunds time only the Danes made it finable possibly being guilty in their own Consciences of their own propensity to rapine and plunderings This priviledge of the dwelling-house was anciently called Hamsoca or Hamsoken or Hamsokne Trespasses committed upon ground were all comprehended under the general name of Ederbrece or hedge-breaking and the penalty was not only the damage to the party but also fine to the King upon Action which in these days passeth under the name of Quare clausum fregit according to the words of the Writ The damages were more or less according to the time or season when it was done for it when the Army was abroad the damages were doubled and in like manner if done in Lent time If the trespass was done by a Beast the owner must pay the damages but if it were occasioned through the complainants default as through his gap no damages were paid The constant fine to the King in all such trespasses was by Alfreds Law set at five shillings Other Actions also were then used as touching damage done to Goods and Actions upon the case for in Alfreds time the Plaintiff recovered not only damages for trespasses done to Possessions and Goods but also costs for injuries in point of scandal and defamation in case the complainant specially declareth that he is thereby disabled or indamaged in his preferment and maketh proof of the same suitable unto the forms of our pleadings at this day which conclude with per quod c. or deterioratus est c. The Saxons were utter enemies to Perjury they punished it with eternal discredit of testimony and sometimes with banishment or with grievous fines to the King and mulcts to the Judge For that difference I find observed in those days between fines and mulcts albeit the more ancient times used them for one and the same for so the Historian pars mulctae Regi In all these matters where any interest was vested in the Crown the King had the prerogative of pardon yet always the recompence to the party was saved besides the security of the good behaviour for time to come as the case required CHAP. XLI Of the Laws of Property of Lands and Goods and their manner of Conveyance THus passing over some tops of Saxon penal-Laws besides the general rule or Law of eye for eye tooth for tooth c. it now remains as lightly to glance at a few generals concerning the setling and property of possessions in point of Title concerning which although it be true that the Conquerors of this part of the Isle were a body aggregate of many Nations or peoples and so divers customs must necessarily settle by common intendment in several places according as they chose their habitation yet the general custom of the Germans as touching descent of inheritance was to the eldest Son. For Tacitus speaking of the German Cavalry saith That the Horse of the party dead went not to the eldest Son ut caetera but to the most valiant man amongst them of that Linage which words ut caetera do plainly intimate that other matters of profit passed to the eldest Son in point of descent Nor can I conceive how men should be induced to conceit that the custom of Gavelkind was the ancient general custom of the Germans It is true the words of the same Historian have misled some the words are Haeredes tamen successores cuique liberi these taken collectively I grant may import somewhat tending that way but they may as properly be taken disjunctively that the Children inherit by course and if none such were then the Brothers if they failed then uncles And it is not only evident that in the publick Succession to the Crown they had an eye this way but in the descent of private and particular estates as by many instances out of those old Histories may appear and had any other custom been general Alfreds rule by Moses Law had never succeeded nor could that other custom hold out against the constant desire of the Saxons to perpetuate their Families in greatness and honour all which besides the express Laws set forth in the Codes are in my conceit sufficient to induce an Historical Faith That the general course of descent was to the eldest Sons and not to all joyntly Nevertheless out of this Estate of Inheritance divers particular estates were created as well by common custom as by the especial act of the owner of such an estate Such of them as were wrought by custom was occasioned from Marriage whereby if the man was setled of such estate
shew a kind of rage and some rashness it might be imputed to the common infirmity of great men for as Oppression upon those that are inferiour makes them mad so doth Treachery against them that are superiour make them little other especially if they be overtaken with a fit of passion in the instant or their minds wrapped into a whirlpool of affairs But the change of Laws makes the greater noise wherein what change they suffered may appear from the premises if Writers have dealt uprightly otherwise general imputations without particular instances will never sway Opinion contrary to the current of the Laws that are published especially seeing we have observed the errour of the best Historian of those times in calling those things new which were anciently used in England before Normandy was in a condition of a State. Yet if this should be granted and that there were such change of Laws as is pretended it makes nothing to the point of Conquest so long as the new Laws are made by advice of Common-council and for the common good and so long as they are established to be Rules for Government I remember it is affirmed by some of those ancient Writers That the Duke or King would have brought in the Customs of Norway but the earnest Mediation of the English prevailed against it and this evinceth two things to my opinion First that there was question made what Law should be established Secondly that notwithstanding the interest that the Normans had in the Kingdom they could not prevail to bring in the whole body of their Law or of the Customs of Norway which were not onely the prima materia of their Law but also in kind had a setling at that very time in those places of this Kingdom where the Danes had their principal seat and therefore not altogether strange to the Saxons themselves The sum of which will be this That upon debate a Law must be setled and that not the Law of the Conquerour's own Will nor the Law that suits with his Desire but the ancient Law of the Kingdom And therefore if at any time the unquietness of some of the English brought the King to some thoughts of Arbitrary Rule and to shake off the clog of the Saxon Law it was long e're it stirred and sprang up too late to raise the Title of Conquest and withered too soon to settle it As touching the change of Customs for that also is imputed to the Conquerour it cannot be denied but some alteration might be in matters of smaller consideration yet are the Writers not without mistake in the particular instances For whereas they tell us that the Conquerour took away the custom of Gavel-kind and brought the custom of discent to the eldest Son and that Kent saved their Liberties and continued this custom of Gavel-kind I shall not contend about the Liberties of Kent but must till I see better reason hold the opinion of the change of Inheritance to be a meer conceit For besides what hath been already said concerning that custom of Gavel kind if we believe Glanvil the difference was between Lands holden by Knight's-service and in Socage the first of which in his time by ancient custom always descended to the eldest and those Lands that were holden in Socage if not partible by custom in which case they went equally to all the Sons went by custom in some places to the eldest in other places to the youngest so as the Rule of Inheritance in the Norman times was custom as well as in former times And furthermore if the custom of Gavel-kind had been the general custom of this Nation the King by his change had contradicted his own Prerogative and granted as great a Liberty to his Subjects as could have been invented For had the custom of Gavel-kind happened upon the Lands in Knight-service it had brought all the Sons under the Law of Wardship and had made a ready way to enthral all men of Worth and undo all Husbandry the first whereof had been as advantageous to the King 's private interest as both destructive to the publick Nor is it clear from any Author of credit that the Normans changed the Tenures of Lands albeit that it cannot be denied but such Lands as he had by forfeiture or otherwise were in his own power to dispose upon what Tenure he pleased for as well before the Normans time as long after Tenures were like as the Services were all at the Will of the Donor and were of as many Individuals almost as the minds of the Owners Some being of more general regard and publick use are recorded amongst the grounds of English Laws none of which appear to me to be of Norman original although they received their names according to that Dialect The next thing objected is the change of Language which thing some Writers tell us the King endeavoured or which is worse to be so absolute as to be absolute Tyrant and to publish Laws in a foreign Language that the people through ignorance might the rather transgress and thereby forfeit their Estates This if true so sar differed from the nature of a Conquerour as rather proveth that he was put to his shifts Nevertheless the thing tasteth so much of Spleen as it might occasion distrust of other relations concerning this subject For besides that it is nonsence for a Conqueror to entitle himself by a cheat where he hath an elder Title by Conquest I shall in full answer to that calumny insert a passage of an Historian that was in the continual view of publick affairs in those times who speaking of the Conqueror saith That he commended the Confessor's Laws to his Justices in the same Language wherein they were wont formerly to be written lest through ignorance the people might rashly offend And another Author saith That the King had a desire to learn the English Tongue that he might the better know their Law and judge according thereto It is probable nevertheless that the Laws were in the Norman Tongue and it is no less likely that the Pleadings in real Actions especially were also in the same Language else must the Normans be put to School to learn English upon peril of loss of their Estates But that either the written Laws were wholly concluded into the Norman Tongue or that the publick pleading of Causes by word of mouth in all Actions where the issue was left to the Country were in any other Language than English no advised Reader will conceive seeing it had been a madness for an English Jury to pass their Verdict in any case wherein it is likely many of them understood scarce a syllable of the Norman Language much less ought of the matter upon which their Verdict should be grounded Adde hereunto that it is not likely but the Conquerour inhibited the use of the English Language in all matters of publick Record inasmuch as the Charters made by him to corporate Towns and
time and was questionless put in practice so far forth as with convenience to the Judges might be but now the convenience of the people is preferred and they must not be brought up to the King's Court but the Justices must come down to them And yet in case of difficulty the Bench where the Common-pleas are holden must determine the matter and where the time in the Iter in one County is too scant the Remanets shall be adjourned over to be tryed elsewhere in that Circuit which sheweth that the Judges itinerant had their time proportioned out to every County These Tryals also were so favoured as in the then holy times of Advent and Septuagessima or Lent they might be tried which although it was gained by Prayer made by the King to the Bishops as the words of that Law are concluded yet it shews that the Parliament had so much light as to hold the time not inherently holy but meerly sequestred by the Will of the Clergie The Plaintiffs also in Mortdancester may be divers if there be divers Heirs of one Ancestor by one Title And if there be joynt-Tenants and the Writ be against but one and the same pleaded the Writ shall abate but if joynt-Tenancy be pleaded and the Plea be false the Defendant shall be fined and imprisoned And if in the Action the Verdict be for the Plaintiff he shall recover Damages Darrein presentment shall be taken onely in the common Bank. Tryals in the common Bank or other Courts at Westminster have ever had an honourable esteem above those in the County by Nisi prius although all be equally available This might be one cause why the Titles of Churches were still retained at the common Bank whenas all other rode Circuit for that Churches affairs in those times were of high regard Speed of Tryal also was not little regarded herein for Justices by Nisi prius properly were but for enquiry till the Statute at Westm the second made them of Oyer and Terminer in the cases of Quare Impedit and Darrein presentment and gave them power to give Judgment And thus the Commons gained still in point of conveniency Free-men shall be amerced according to the degree of the fault saving to them their Free-hold and to Merchants their main Stock and to Villains their Waynage and Clergie-men shall be amerced according to their Lay-fee Barons shall be amerced by their Peers others by the Vicinage In this regard is to be had first of the persons that are to be amerced then of the parties by whom and lastly of the nature and quantity of Amercements The persons amerced are ranked into four Classes Barons Clergie Free-men and Villains But in regard of the parties by whom they are to be amerced they are but two Barons and Free-men for the Clergie Villains and Free-men are to be amerced by the Free-men of the Neighbourhood In what Courts these Amercements shall be the Stat. Marlbr tells us not before the Escheator nor other that make enquiry by Commission or Writ nor before the Justices of Assize or Oyer and Terminer but onely before the Chief Justices or Justices itinerant The Statute of Westminster adds a fifth Classis of Cities and Towns by express words which seems not so necessary unless in pillaging and oppressing times for they were taken to be within the Statute of Magna Charta though not therein named The rule of the quantity of Amercements is now set down in general and left to the discretion of the Peers or Vicinage which formerly by the Saxons were specially set down in the Law. The rule in general is with a ne plus ultra viz. not further or more than that the party amerced may spare and yet hold on in the maintenance of his course according to his degree And it must be also according to the quantity of the offence for the greatest Amercements must not be ranked with the least offences so as in every degree the main sustenance of the party is saved yea the Villains however mean they be they must have their maintenance And this sheweth that Villains had a maintenance which was under the protection of the Law and not under the gripe of their Lords to all intents unless they were the Kings Villains who it seemeth were meerly under the Kings mercy as being both their Lord and King against whom they could hold nothing as properly their own And therefore in all other cases even then the Villains were born under a kind of liberty as in the Saxons time formerly hath been declared which the Law protected against their own Lords No man shall be compelled to make repair or maintain any Bridges Banks or Causies other or otherwise than they were wont to be made repaired or maintained in the time of Henry the second The limitation to the times of Henry the second sheweth that his Justice was such as maintained the common rights of men but in the times of Richard the first and more especially of King John those Rivers Waters and Fishings formerly used in common were encroached upon enclosed and appropriated to particular mens uses which occasioned many Bridges Banks and Causies to be made and repaired to the great charge of private men all which are discharged by this Law. No Sheriff Constable Coroner or other Bayliff shall hold any Pleas of the Crown Escheators are also expressed in the old books of Magna Charta and the Abridgements however it seemeth that it is within the intent of the Law which was made to avoid the extraordinary oppression that these Officers exercised upon the people For Escheators under colour of inquiry of Estates of men would enquire of matters concerning the lives of men and Sheriffs that had power of Tryals in cases of Theft as hath been already shewn abused the same for their own benefit because in such cases they had the forfeitures This Law therefore takes away such occasions viz. from the Sheriffs and Coroners and Bayliffs or Justices other than by express commission thereto assigned all power to hold Pleas of the Crown by tryal leaving unto them nevertheless power of enquiry of which anciently they had the right If the Kings Tenant dieth supposed in arrear an Inventory shall be made of his Stock by honest men but it shall not be removed till Accounts be cleared and the overplus shall go to the Executors saving to the Wife and Children their reasonable part The first clause hereof was a Law in Henry the first 's time and a customary Law in Henry the second 's time being a remedy against an old Norman Riot of the Lord's seizure of the whole personal Estate of the party deceased under colour of a Law. The second part concerning the overplus hath this additional subjoyned in the Charter of King John If any Free man die intestate his Chattels shall be divided by his Parents and his Friends in the presence of
tanning of Leather imbasing of Silver selling of Waxen Images and Pictures c. For the superstition of these times was such as these petty Gods were not set at so high a price by the Seller but a higher price by the Buyer The Parliament therefore set a true value of them viz. For the Wax so much as the Wax is worth by weight and but four pence for the godhead So as it seems the Parliament was not very superstitious in their House whatever they were at Church Furthermore the Justices of the Peace had power to punish deceit in Measures Weights Forcible Entries and Detainers In many of which cases the penalty being Fine and Imprisonment became a snare to many of the Justices especially such as were of the greater and higher rank who having Castles of their own under colour of Justice imprisoned Delinquents in their own Castles and ransomed them at their own pleasure which proved a great oppression to the people and occasioned a Law that no Justice should commit any Delinquent to other than the County-Gaol saving Franchises to the Lords Those times are happy when Justice waits not altogether at Court but grows up in the Fields and Justices of Peace as the Kings Arms upon the Royal Mace are terrible onely to the bad and not as they are pictured before an Ale-house-door to invite men to transgress The Laws for the preservation of the peace concern either punishment of Crimes committed or prevention of them from being committed There is a succession of crimes as of Men and Ages because the Scripture tells us that the hearts of all are fashioned alike yet it is with generations as with men some incline to some crimes more than other and that is the reason that the title Treason sometimes is set forth in Folio sometimes in a lesser Volume It is evident is Story that the violent times of Richard the Second had raised the value of that amongst other offences above measure not long before his time his Father had reduced that wild notion of Treason to a certain rule that formerly wandred in a Wilderness of opinions But Henry the Fourth either to save his own stake or to take the people or both reduced it again to the Statute-rule of Edward the Third and made void that Statute of his Predecessors which had made a former Act of Parliament and all the service thereby done Treason The Dimensions of Treason thus clearly limned and declared taught ill-disposed minds to keep out of the Letter and yet to be bold with the Scene Counterfeit Money they durst not yet to diminish the same they thought came not within the Circle and so it became a common grievance till a Law was made That all purposed impairing of Money should be Treason And so the Parliament held forth to all men that they had a power to declare Treason without the bounds of the Statute of Edward the Third The like power it held forth in the time of Henry the Sixth for men knew that Burglary and Robbery were mortal crimes they would no more of that now they devise a way to spoil and prey for themselves and yet neither to rob nor break House To this end they would scatter little Scrolls in writing requiring the party that they intended to prey upon to leave so much money upon such a day at such a place and this was Sub poena of burning the parties House and Goods which many times did ensue upon default made This practice was at once made Treason to prevent the growth of such an evil And the like was done with Robberies and Manslaughters contrary to the Kings Truce and safe-conduct As many or more new Felonies were also now created One was the cutting out of mens Tongues and plucking out of Eyes a strange cruelty And that shewed the extream savageness of those times so much the more intolerable by how much the poor tortured creature could hardly be either Eye or Ear-Witness of the truth of his own wrong A second Felony was the customary of carrying of Wool or Wool-fells out of the Realm to other places except Calis Another Felony concerneth Souldiers which I refer over to the next Chapter The last was Servants plundering their Masters Goods and absenting themselves if upon Proclamation made they appear not this was also made Felony In the next place as touching Forcible Entries and Riots the remedies so often inculcated and new dressed shew plainly the nature of the times These kind of crimes commonly are as the light Skirmishes in the beginning of a War and follow in the Conclusion also as the faintings of a Battle fought till both sides be weary I shall not enter into each particular Statute divers of them being little other than as asseverations annexed to a Sentence to add credit and stir up minding in men that otherwise would soon forget what is said or done The remedies formerly propounded are now resined and made more effectual First In regard of speed which is as necessary in these forces as the stopping of the breaches of Waters in the first act and therefore one Justice of the Peace may proceed upon a holder by force or breaker of the Peace with a Continuando but Riots are looked upon as more dangerous and the first opposition had need be more stiff lest being uneffectual it aggravate the violence and therefore it is required that two Justices and the Sheriff should joyn in the work to carry on the work with more Authority and Power And what they cannot do in the punitive part they must certifie to the King and his Council or to the Kings Bench if Traverse be made So as though the power of the County be annexed to the Sheriff Jure ordinario to maintain the Peace yet the Parliament did delegate the same upon Justices as it thought most expedient To maintain and recover the Peace when it is broken shews more Power but to prevent the breach shews more Wisdom and therefore to all the rest the Wisdom of these Times provideth carefully First For Guards and Watches according to the Statute at Wint. and committed the care thereof to the Justices of the Peace And Secondly Against the gendring of parties for it is commonly seen that such as the admired for excellencies of person are so far idolized of some as that their Gestures Actions and Opinions are observed Tokens of favour though never so small are desired from such and the Idol likes it well gives Points Ribbons it may be Hats and with these men are soon gained to be Servants in the fashion and not long after to be Servants in Action be it War or Treason or any other way This manner of cheat the former times had been too well acquainted with Knights and Esquires are not to be feared in times where the word Lord carries the wonderment away their offences against the Statutes of