who has not heard of the father of Venice If any such there now be as well there may nature we see by these examples of the last times is no weaker then she has been of so firm memories of so happy judgements they are exceptions to my limitation and are not to be confined if they be not too delicate to adventure they may be ranked amongst those who do not invade Such men have reputation to lose which they will not hazard slightly they will consider of things and know well what it is they censure Whensoever they appear they cannot appear but as friends there can be no danger in them Haste and ignorance are onely to be feared if haste as Livie of it be improvident and blinde what can ignorance be thought to see Every man ere he gives his censure of Laws ought to read them over from the beginning to the end to look into them throughly according to that In civile est nisi tota lege perspecta una aliqua particula proposita judicare c c Leg. in Civivile st de leg upon one particle proposed the whole is not to be judged To the understanding of laws the words alone are not enough the intent of the Legislator the reason and end why they were given are to be enquired By the words of the Law is meant their propriety and signification which will not quickly nor without pains be known The intent of the Legislator is his preceptive will seldome found by the words abstractedly and nakedly but by the adjuncts the matter or circumstances This is the intrinsecal form The reason of the law is only the end moving the Legislator to make it not composing substantially the law constitutive to which the precept and will of the Legislator is to be accommodated This if not expressed in the law but devised by the interpreters is but a probable conjecture Every disadvantagious act of a drunken man by our law touching his lands or goods binds him Nay and touching his life too if he kill a man he is hanged for it f rep 4.124 Plow Com. 19. By Pittacus his law amongst the Greeks allowed by Aristotle g Polit. l. 2. c. ult if he had struck any man he was to suffer double as much as if he had done it sober Some lawlesse good fellows would thinke all this very unreasonable in a law onely intended to punish the wrong done according to the grievousnesse of the offence Since it is evident that mischiefs deliberately done as they may say perhaps with advice and malice are naturally lesse pardonable and therefore worthy of more severe punishment But as M. Plowdens report although the drunken man kill out of ignorance it helps not This ignorance was his own act and folly he might have resisted it and shall not be priviledged by it as the Court in that place of the Lord Cooke His drunkennesse is a great offence in it self and extenuates not but aggravates that which follows whatsoere colourable reasons may be given this boldnesse is rather tolerable in an Hotoman a stranger then an English man The law is the act of the whole body politique and ought to over-rule every part of it to binde every man the actual assent of every single man is not material nor does the dissent of a single man disoblige we are tyed by our forefathers their publique submission to these lawes at their free liberty and with their consent made h 25. H. 8. c. 21. their acceptance of them long since bindes us unlesse the revocation be by the same universal agreement which I believe is not like to be had As a most reverend Lord chiefe Justice strangers by living here do tacitely submit themselves to our lawes and forms of Law-making their grant and consent is involved in the consent of Parliament i ch Iust Hubard rep 271. Much more of the naturals and if all mens judgements which may be as unlike as full of diversity as their faces must be satisfied with reasons of laws long since established or to be set up it wil be impossible any old law shoud hand or any new law take Besides all publique authority to which onely the power of lawgiving belongs would lose its reverence As the Mirrour No creance no belief is to be given to the vain voice of the people The Iudges they are to obey the laws not to dispute them We have have our 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as well as the Athenians who are judges of the laws of the reasonablenesse of them and who are to see them observed King Edward the first said by a most reverend chief Justice long ago to be the wisest king that ever was k 5. E. 3. c. 14. speaks thus in a Statute where we may see what antiquity attributed to the honourable Judges of the laws The king wills that the Chancellour and the Justices of his Bench shall follow him so that be may have at all times neer him some sages of the law which be able duly to order all such matters as shall come unto the Court at all times c l 28. E. 1. c. 5. All the Justices of England and Barons of the Exchequer as the Lord Cook are assistants to the Lords in Parliament m 4 Inst 56 They were more then assistants to the Barons their Writ was for they had their Writs too Quod intersitis nobiscum cum caeteris de consilio nostro super pramissis tractaturi vestrumque consilium impensuri They were to treat with the king and his Councel and to give Counsel As Mr. Crompton they were to be demanded for the Law n Jurisd 2. Postnat 22 23. a Statute more antient then the former begins All of the Councel as well Justices as others agreed that the constitutions underwritten c o Vid. Stat. de Bgam And again It is agreed by the same Justices c p Ibid. i. 6. The Statute of Marlbridge sayes For default another day is to be assigned according to discretion of the Judges q c. 13. Marâ—b and discretion of the Justices and the Common Law are joyned 1 c. 26. ibid The Statute of Westm 2. for damages in appeals has According to the discretion of the Justices Å¿ W. 2. c. 12 in another place Whereas the Justices in the plea of Mortdancester have used to admit the answer of the tenent t c. xx the Statute 27 of Fines is according to discretion of the Justices u 27. E. 1. All the Judges of England gave their Answer to the Articles of the Clergy 3. Jacobi which the Lord Cooke calls Resolutions of the highest authority in law w 2 last 001. as upon the xx chap. of Westm 2. by that he says it is confessed That admission and allowance of the Iustices ought to be holden for Law x 2. Inst 399. In the Parliament 19 of Edward the first Sir Thomas of Weyland
chiefe Justice of the Common Pleas having abjured c. for murder His wife and son Petition the Parliament for a Manour which the Lord of the Fee had seised as Escheated in which Sir Thomas had onely an estate for life joyntly with his wife but the inheritance was in the son by fine There were summoned says the Record as well the Iustices of either Bench as the rest of the realme c. expert in the laws and customes c. The resolution speakes Before the Councel c. there being called the Treasurer and Barons and Iustices of either Bench it is agreed c. The famous case of conveening Clerks before the secular Magistrate was debated in the time of a Parliament of Hen. the 8. the Iustices c. being present and ruled according to the opinion of chiefe Iustice Fineux a most reverend Judge y 7. H. 8. Kelle vay 183. Reasonablenesse of time for tenant at Will discharged to carry away his goods of incortain fines of Copy holds c. is to be adjudged by the discretion of the Judges z Inst 57.59 Distresses are by the Statute of Marlbridge to be reasonable a c. 4. No more is said The Judges have ever yet determined that reasonablenesse as they have ever ordinarily what is reasonable in other things just and injust right and wrong what are evil customes and what not according to the Laws they have the use and customes of judgement saies a Statute b De Bigaem c. 1. Good reason then that they be Judges of that use and those customes They may claime this authority by a long prescription it has been allowed them in all Parliaments and by all Parliaments hitherto c V. 1 H 7. 3.4.20 3 Just 3. They in all the books doe not onely expound interpret and deliver the sense of Statutes but in Parliaments too upon consideration of a Bill in the 43 and 44 of Queen Elizabeth it was resolved so we finde a book speak By the chiefe Iustices Popham and Anderson and by divers other Iustices assistants to the Lords of Parlia ment in the upper House That leases to the Queen c. against the provision of the 13 of El. are restrained by the same act d 5. Rep. p. 2.14 The Lord de la Wares case concerning disability temporary and absolute was in a Parliament sitting referred to a Committee which at the Lord Burgley's Chamber in White-hall heard what could be said by Councel in the presence of the two chief Justices and of divers other Justices by whom it was resolved e Rep. 11.1.39 El. Here is an allowance of the latter as wel as former ages whatsoever the change may be let us change till we shall not know our selves if we retaine any face of Law or Judicature so it must be I never heard nor those who have heard more of such a Law yet which could be learned practised and understood without study and which all men but those who had studied and understood it might be Judges of The professed enemies of the Laws of England as such lawes have not been many no not in very many ages much stirre there was much disquiet ere they were had or rather restored Never any tumults all the Histories ore to undoe what was setled I doe not remember any other Law named against it but the Law of Wat Tylers mouth f From this day saies Tiler in London all Law shall fall from Wat Tylers mouth which we can make nothing of we heare of Kets Oke of reformation nothing of his Lawes The Lawes never were made the title of a rising yet I believe under such leaders little of the building would have stood whole Those of the Roman heresie are and have been inveteratly spightfull have more then once attempted to blow the Lawes and the Nation into the ayre together according to that divine determination of the Jesuiticall Oracle that the innocent may be destroyed with the wicked the Wheat plucked up with the tares g Act. p. 93. They would have blown up all our Laws though all of them are not accused not slandered by them not in what I have seen of theirs though likely they shal all have their turns not one of them not yet perhaps traduced by them as they are offended by it if it keep their mischiefes from ripening and be executed against them though much more ancient then our quitting them and their heresies and approved by their own Clergy here but it shall be reproached by them as one of our Statutes Our Laws though necessary and religious against them being called by them cruel Laws h 3 Jac. c. 1. The Statutes of praemunire and provision c. are abominable Parsons the Jesuit that fury of sedition charges the Law of Cawdries case highly and with the least dangerous Ponyards and daggers of his society wounds as he thought the reverend reporter Andrew Eudaemon as others Cacodaemon Johannes in love with the Straw miracle of the Gunpowder Martyr Garnet condemnes our Laws and Courts and the triall by twelve men like Polydore Virgils Ghost in his words He was of Crete so he saies and if we believe him in that we must believe him in nothing else The Jesuits were ever undermining ever active full of plots and treasons and their hatred cannot be imputed to any other cause but this for the ills they had done they feared the barre yet this arrogance they might take from the house of pride of which they were The Prince of which has ever till we left him where he had left the purity of the first ages encroached upon our Lawes and government praetending every where a certain assistance of the holy Spirit for which he is to be obeyed a course I would advise those to take who inveigh next and have nothing to say to the purpose The Pope as the Venetians in the interdict tell the French Kings Ambassadour attributes to himselfe authority to define and determine even against the opinion of all the world what Lawes are just and unjust as Dr. Marta Besides the kisse of the blessed feet he has the free faculty of making and abregating Laws i D' jurisd c. 46. Whence this authority is derived some are not assured they referre it to the spirituall authority with which the temporall is imagined to be indirectly given Others speak plainly that he is a temporall Monarch over all the earth that he might receive appeals from Princes give Laws to them and annul those made by them That Ecclesiasticks are to examine whether the Lawes of Princes be just and whether the people be obliged to obey them if we doubt this think it with the most if we tell the flatterers and Parasites of this chaire the former ages heard nothing not a word of all this They may reply in the words of Paul the 5. That the former Popes did not wel understand themselves a great and certain mark of this
second of Richard the second m 2 R. 2. c. 1 Wills that the great Charter and the good laws of the land be firmly holden The 3d. That the good laws and customes c. be bolden n 3 R. 2. c. 1 v. 5 R. 2. c. 1 7 R. 2. c. 2. 9 R. 2. c. 1. The 4. of Hen. the 7. And over that his Highnesse shall not let c. but that he shall see his laws to have plain and true execution and his subjects to live in surety of their lands bodies and goods according to his said laws c. o 4 H. 7.12 c. 9. The 32. of King Hen. the 8. saies The King calling to mind c. that there is nothing within this Realm that conserveth loving subjects in more quietness rest peace and concord then the due just ministration of his laws c. The first Parliament of King James has The fundamentall and ancient lawes which this King as there is said expressed many waies how far he was from altering or innovating whereby c The peoples security of lands livings and priviledges both in generall and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present confusion wil fall upon the whole State c. p 1 Jac. reg c. 2. Twice in Petition of Right is this expression and other the good Laws and Statutes once the laws custows once franchise of the land The conclusion is all which they humbly pray as their rights liberties according to the laws Statutes q 3 Car. Reg. If publike authority authority of Parliaments authority of the English Nation in all ages can make an authentike and valid testimony by that authority we see our Lawes are facred pious good mercifull and just their ends aym meerly at the peace and happinesse of the Nation the only ends which Lawes should aym at and these being had he must forfeit the Noble reason of man who desires a change which whensoever it shall happen by the judgement of a Parliament like the change of death must be fatal to the State Though here is already the weight I promised and such as all English men should allow I wil adde a testimony or two more of private men not of the profession yet no strangers in the Law as the most knowing Sir Henry Spelman Of all municipal lawes our law plain and without dresse as she is is the most noble Lady replete with all justice moderation and prudence c. As Sir Thomas Smith the people here are accustomed to live in such sort that the rich have no more advantage then the poor Dr. Cowel a most knowing Civilian very judicious in our laws sayes of the two Benches They decide all causes religiously according to the rescript of the Common law r Justit Angt. 24. sect 2. a most learned Knight of our age praises highly our forefathers for their vertue abroad and their exquisitenesse of counsel and judgement at home amongst whom as he in Livies expression The commands of the laws were ever more powerful then those of men and Iustice was administred with that sineerenesse and judgement you would believe it to have proceeded from Papinian himselfe of all men who are shall be or have been the most skilled in the laws Å¿ D. Rog. Twisden praefat ad Ll. Guil. 1. Hen. 1. Our laws are not written in any general tongue and so cannot easily be known by forreigners but by the effects long continuance here or acquaintance and seldome so strangers every where for the most part desiring to take notice of every thing else rather then of laws The French man who wrote the estates of the world discoursing of the charges practised in other provinces in his time sayes But the liberty of England is marveilous in this regard no Country any where being lesse charged t Les Esta c. p. sciâ—ur D. T. V. Y. v. Sir Rob. D alingt survâ—y of Tuscany The Lord of Argenton as much experienced as any man in his age or perhaps since who had seen Venice and the order of things there and praises it sufficiently yet speaks in his plain manner of England Now according to my judgement amongst all the Seigneuries of the world which I have had any knowledge of where the Commonwealth is best managed and where there is lesse violence used upon the people it is England u Liure 5. It was otherwise of France in the days of his Master Lewis the 11. In many places so grievous were the Taxes men women and children were forced to draw the plough by their necks and that by night for fear of the Collectors w P. Mat. Lon. 11. If we look upon the Peasants of France flead alive the Villano or Contadino of Italy either under the Spaniard or Venetian Where Fruit and Salades * Sir Rob. Dalingtons Survey of Tuscany nay and Asses dung all things whatsoever pay Tribute but mens sighs where one word gabelle is of the largest extent and more used then all the other in the Languages leave out the chains of the Turkish Gallies and the most sad thraldom of those Natives of America under the Spanish Conversion of the newest Fashion Baptized but as Bede says of the Protomartyr Albane in their own blood we shall finde nothing so miserable so unhappy in Nature Our Yeoman as Sir Tho Smith is a free Englishman a man well at ease and having honestly to live He savours says a Reverend Church man of our Nation of civility and good manners living in far greater reputation then the Yeoman in Italy France Spain Dr. Heyl. Geegr or Germany I may say for some of them more freely more plentifully then the Gentry of either Spain or Italy being able to entertain a stranger honestly dyet him plentifully and lodge him neatly We may read the words of a Parliament to this purpose after the discovery of the Powder-plot No Nation of the earth hath been blessed with greater benefits then this now enjoyeth x 3. Jac. and whatsoever benefits we have received we owe them all to the Laws they are derived to us thence we can attribute them to nothing else Honour given to the Professors of the Laws As Justice is the most excellent of all vertues seated in the Will as more sedate and nearer to the reason its object being the profit of others So it is with good cause preferred before Fortitude as Peace before War which ought to be ruled by a certain Justice and if all men were just there would be no need of Fortitude The ancient Chief Justice whatsoever may be talked of the Constable or others was the Great Officer of State and as he had more power so had he the precedency of all men else Odo Earl of Kent Chief Justice in the time of William the 1. is called Prince of the Palace by Ingulphus y
of it Many great Families have been advanced by the Law many of the best and noblest thought it no disparagement to professe it Some of our illustrious names may be met with amongst the Serjeants and Apprentices of our yeere books as well as in the Heralds books If like Boccace his Ghost all those who laid the foundations of their houses who first broke through the miste of time wherein they and their ancestors were hid before who first shewed their names to the world were to appeare before us in the habit of their sprouting up with all their sordid cheats with all the crafts several close arts of thriveing used by some displayed and revealed all the false sleights of the Town and Country laid open where every peny is got oftentimes too too dishonestly by the unworthiest sins a man can commit how would the gawdy off-spring curse his own rise the branch be ashamed of its own root vertue alone is honourable mony can neither make men wise valiant nor good Arts and Armes onely and really innoble that of all others most deservedly whose object is meerly the good of mankind which imployes men continually for the publique for the preservation of the people pacique imponere morem The souldier as Cicero may once profit his Country the Lawyer always Our most Reverend Judges and professors of the Laws have in all ages * Anciently part of the Persian kings title The ophyl risen with the Sun and given eyes to the blinde night But I have offered my selfe too far to ingrateful dangers Here I will stop and give over Not that much is not left out which might have been said of the sacred Law of the Land and the administration of Justice here Much is left out and I wish some more happy and more able would undertake the whole It is enough which again I may protest that I speak not in the midst of Fetters and that I have defended and the defence could not but be easie truth onely for its own sake yet I believe he who knows most who commands most in language and Sciences who pretends justly a title to the kingdome of the barre or schooles with all his mouths and tongues if he had more then one hundred could not do full right would be short and wanting here Not in our right hands as is said of those souldiers in Curtius but in our Laws our helpe our hope and liberty lie We need not aske for propriety not for peace not for order concord security not for wealth nor honours one wish comprehends them all carries all these with it the safety of the laws is all these propria haec sidona We have seen at large what excellent blessings we have received from the Law these blessings may be everlasting if that be made so I know nothing it ought to yield to and our Parliaments have thought so but eternity and the change by that FINIS The Table A. AIde to Knight the eldest son c. 127 Alodium alodiaries 129 130 c. Aelfred the King not the founder of the Saxon policy 85 86 Aequity and judging according to equity how to be understood 31 32 Aescuage 127 149 Aldermen amongst the Saxons 98 B. Barons Norman and English ever lovers of the Laws 107 280 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Bocland 140 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Britannie and the Britains under the Romans 71 72 73. The Civil Law the first Law heard of them amongst them 73 74 governed by Kings 72 C. Casars Commentaries l. 6. concerning the Gaules and their wives 75 L. Chancellours Oath 65 Chiefe Justice the greatest subject 159 288 289 Church highly favoured by Lawes 273 274 Circuits of the Iudges 163 Civilians what opinion they have of the Pandects c. 226 Clergy men heretofore Lawyers 292 Cnut the king composed the law called the law of St. Edward 88 Counsellours 175 Courts of Iustice are of Saxon original 94 95 96 Courts since 159 160 c. Courts standing and ever open 165 166 Customes unwritten why 89 D. Delayes odious in the law 169 170 c. De rerum venditione that constitution set forth at Yorke 74 Drenches 143 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Duilian baâ—k 218 E. Earles amongst the Saxons 98 Edilinges 140 Edward the third first changed the Welsh lawes 76 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 200 Eleutherius his Epistle to Llever Maur a forged piece 73 F. Faulehen what 124 Feudes 121 Firdfare 149 Foleland 129.152 Forstale 134 Frankalmoigne 127 Frankleudes 129 130 The French Policie and ours much alike 126 Fyheren 124 Frilinges 126 Fundi limitrophi 119 G. Gavelkinde in Germany 125 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Germanes and their institutions have overâ—â—owen all Europe 78 79 80 Their lawes called salic more antient then Justinian 81 Glebal gold 120 Adscriptitius ibid. Grithbrece 134 H. Henry the eight imposed wholely the English lawes upon the Welsh 77 Heinfare 145 Hereban 150 Herefare 127 143 Hereot 127 14 High Court of Iustice 97 159 Hotoman his censure of Littleton 240 I. Infangennethiefe 134 Iudges not to decide causes according to discretion how to be intended 32 33 Their authority 199 c. Assistants to Kings and Parliaments there heretofore Barons 290 Honoured 292 293 Iuries tryals by them not brought in by the Conquerour 92 93 Iustice to obey laws 33 K. Kings of Macedon ruled by law 24 Of Mexico might not be touched 45 Kings of England their Oath 111 Might free men from the Firdfare Burgbote c. 151 Kisses given to Princes 118 L. Laudamentum 124 Laws the enemies of them 1 2 Necessity of them 18 35 Law what it is 34 35 Force is not law 23 24 25 Nor the arbitrary will of man 27 28 Why laws were written 30 31 How antient 35 Law of the land in Magna Charta is not waging law 50 51 Common Law 75 excells and may controle Statute laws ibid. Custome and expirience begot it 60 61 It is known and to be found in books 60 65 66 67 Its antiquity not Norman c. 64 c Laws of Hoel Dha and the Welsh 76 77 Salie Laws 86 81 82 The Saxon laws 84 the several kinds 88 Our fundamental laws Saxon 90 91 known by the name of St. Edwards laws 100 101 102 104 setled in the great Chaster 108 110 then called Common Law Letters of the Ionians and Phaenicians heretofore neer the same 37 Loudes 131 Liberty what is 45 46 c. Littleton vindicated 240 241 Lombards their laws 84 M. Manners and priviledges belonging to them amongst the Saxons 133 Method of our law 243 N. Normans themselves ever zealous for the laws of St. Edward 135 107 108 They as some received their lawes from the Saxons 112 O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 120 Operae liberterum 119 P Papinian Judge at York 74 Papists ever enemies to the lawâ—s 67 Parkes 136 Plea of Pinneden under Will the 1. 104 Pleadings 209 Polydore Virgil 92 93 Propriety 2 3 R Rectories and glebe-land whence 151 Reliefe 127 131 147 S Salbuch in Germany 83 Saxons their policy and government 85 86 Sac. 134. The Saxons subverted all things 77 78 Saxon tongue 215 216 217 Sicyon never changed her lawes in 740. yeers 53 Slaves thrown to Lampries 252 Soc 134 Socage 129 Spaniards retain the German customs 128 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 120 Subverters of the laws 66 67 T Team 134 135 Tenures all Europe ever 118 Reasons of them 119 120 All lands held of the King 149 Terms of the law 213 c. Thanes Thenes 137 138 c. Tol 134 Tribonian censured by Perrinus 226 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 V Vassi dominici 125 Vicedominus 99 Villeins 153 154 Vtwara W William the 1. his entry not so violent as is thought by some 143 144 Writs whence they issue 162. See 207 c. anciently the Kings letters there No man to answer or be called in question without a Writ 209 FINIS
who would have Law to rule the City seem as if they would have God and the Laws to rule but those who would have man to rule give the command to a beast Not that he condemns Magistracy which he often much magnifies but that he would not attribute all things to men By Law is understood natural Reason divinely infused upon which is framed a certain form of living By man humane Authority Such is my will my pleasure my affection are words might become Ket's Camp and his company of Governours They would sound horribly in a Judges mouth Therefore Rinalde protests in Machiavel That he would not esteem it worth much to live in that City where men were of more power then the Lawes Bragging of our own subtleties and contrivances is nothing to the purpose to make this invalid too often we have our ends and designes in them which the Law doe's not allow and hence grows our distaste how often has the case of perpetuities been over ruled it being against God and Nature that things here should continue without change where the change is just and against reason that an estate should continue in one family to the worlds end in such manner that no owner at any time could either advance his younger issues or pay debts out of it but that those of the descendents capable never so disobedient and unnatural should take all yet as if every man might make Lawes for his own patrimony how lawlesse soever and exploded this perversnesse will not be given over although according to the rule of that Reverend Chief Justice upon this case Mens Policies are to be fitted to the Lawes not the Lawes to their Policies s Sir Hen. Hub. 134. This writhing the Lawes * Pigh controv Ratis l. 3. as the Papists deal with the Scriptures which they make a nose of wax is an impiety which Livies remembers with the neglect of the Gods next it t lib. 2 A most reverend Bishop tells a Roman Adversary as ill satisfied with our Lawes as this State which made them was with the Treasons of his Order That he is unworthy to be indured in a Commonwealth held with Lawes who departeth from them u Tort. Tort. 145. We read That is lawfull which the Law of the twelve Tables and the Iulian Law permitteth w Wel. 7. si paciscat Dr c. li. 1. D. de Just jur and in the same Civill Law we say That is lawfull which by the Laws the custome of our Ancestors and institutions is allowed Every thing we may or can doe is not lawfull x Cicero Philip. 13. in which sence Vlpian interprets that clause of the Edict Quod eius Licebit And againe that is lawfull which is permitted by the Lawes to which is opposed unlawfull and that is unlawfully done which is done against the Lawes Customes c. y de legat l. 3. Although the Romans as the Spartanes from whom they are borrowers had their Customes unwritten which was Law approved onely by use Quibus saepenumero saies a Civilian Gliscentibae perniciosissime Lacones errabant z Lexic Ju. Ciu. tit Lex Yet to the end that neither favour nor hatred might approach the tribunall nor judgement be left to the arbitrary will of man and that the Lawes might be made certain and notorious the greatest part of the Roman Lawes were written that no one as is said might doe and undoe binde and loose at his pleasure because of humane frailty all men being liers it is not safe to trust the Magistrate without a written rule as another a ibid. The Jewish Lawes of the Decalogue by Gods coÌ„mand were written the Lawes of the Athenians were written by which they are said to excell those of Sparta b ibid. The Republique commends highly the publishing the twelue Tables then as that the Magistrates were constrained to governe the Subjects following these Lawes so that Equity and arbitrarines had not any place c Bod. de la Rep. Liure fixieme Charendos chosen the Lawgiver of those of old Sybaris or new Thurium in Lucania now Bafilicata chosen so Diodorus to prescribe them the manner how to live having diligently looked over the Laws of other Nations and digested the best into one body commands in no sort to dipart from the words of the Law or from the writing à legis scripto d Biblioth Li. xii his reason is from the absurditie that private men should meddle for this he reserves to the supream power though things be amisse He speakes not more to Magistrates in his prohibition then to any others but generally nor of equity both which Bodin would seeme to prove by this place e Republ. L. sixieme And although in a Court proper a Judge of Equitie is to be allowed yet if it were allowed to all other Courts to expound the Law against the Letter perhaps meaning of the maker according to conscience as wâ— speak Equitie would as more plausible be every where cryed up like Caesars consulship the Law suspected in every case as unjust in time being lost in opinion would weare out and fall insensibly as uselesse and in all Courts there would be nothing but equity left which aequum bonum or equity is in plaine termes nothing else but absolute and arbitrary power King Francis the first of France having subdued Savoy and driven out Charles the second the Duke the new Magistrates substituted by him gave judgement according to equity and often against the Customes and Law written the Estates of the Country were quickly wearie of this equity they could finde no justice in it and therefore Petition the King That those Judges might no more judge according to equity which was nothing else as the reporter but to tie them to fasten them to the Lawes without any variation ny sa ny la neither here nor there a thing quite contrary to the passions saies Bodin of favourable Judges f Vbi supra The mischiefes and oppressures done by Empsâ—n and Dudley are imputed to the Statute of King Henry the seventh authorising to hear c. offences committed against poenall Statutes c. According to discretion not according to Law and Custome of England which the Lord Cooke seemes to dislike g 4. Just c. l. p. 40. yet which is the same discretion is so he thus to be described To discerne by Law what is Iustice h ibid 41. When a Jurie doubting the Law has found the speciall matter the entrie is and upon the whole matter c. They pray the discretion of the Judges or the advice and discretion of the Justices in the premisses c. The Statute 3. of King Henry the eight of Sewers allowes to make Statutes according to their owne wisedome and discretions c. which words are to be to be intended and interpreted according to Law and Justice i r. w. Kighleys c. It was
are to doe even law and execution of right d 20 E. 3. c. 1. The supreme of these Benches after this alteration dealt in pleas criminall called placita Coronae in the books e 4 Inst 71 Stamp Pleas of the crown examined and corrected errors misdemeanors and offences against the peace granted the Habeas corpus and upon return of the cause relieved prisoners held pleas by Bill for debt detinue covenant promise of all personall actions of ejectione firmae and the like against any in the custody of the Marshall or any Officer of the Court who may implead others in those actions of all trespasses with force and armes of Repleviuâ— Quare imâ—â—dit c. of Assise of Novel disseisin These Justices are the soveraign Justices of Oyer and Terminer of Gaole delivery and conservators of the peace c f 4 Inst c. 7. This Bench may grant prohibitions to all other Courts to keep them in their bounds The Chancery as before supplies the wants and relieves against the rigour of the Law in its extraordinary juâ—isdiction The Ordinary held pleas of sâ—ire facias to repeale the Kings Letters patents of Petitions monstrance of right Traverses of offices of partitions there of scire fac upon recognizances there Writs of Audita querela and scire fac ' in the nature of it to avoid executions there endowment might be there by the Writ de dote assignands upon offices found execution upon the Statute staple or recognisance in nature of it upon the 23 of Hen. the 8. Personal actions might be brought there by or against an Officer or minister of the Court it is the officina justitiae hence all Writs issue it grants the Habeas Corpus out of Term g Ibid. c. 8. In the Court of Common pleas or commune bench all real actions are determined and all common pleas mixt and personal Besides the Stationary Courts at Westminster there were the Justices in Eyre the sitinerant Justices Charles the bald in the yeere 853. divided France into twelve parts and over every of the parts placed men famous for Religion and Law who yeerly travelling their own Divisions took cognisance of wrongs done betwixt party and party and of the publique offences according to justice By which pattern King Hen. the 2. of England in the yeer 1176. divided this Kingdom into six parts over every of which he appointed three Justices yeerly to goe their Circuits h Hoved. 548. M. VVestm l. 2.39 though I know not why this institution is made more ancient by others These were followed by the Justices of Assize since in being by whom they are swallowed up their circuits are twice the yeere and at certaine times having the power of Gaol-delivery added with the authority of the Justices of Nisi prius annexed also the inquiry and determinations of many things else given by latter Statutes and by another Commission of Oyer and terminer the power to deale with Treasons Murders Felonies and all misdemeanours whatsoever they have one other Commission of the peace in the Counties of their circuits by vertue of all which together they sit More perhaps cannot be devised for the ease of the people Thus is justice brought to their own dores the same thing with a fixed standing Court and as it may chance more safe The lesse the Judge is known in the Countrey the lesse is the danger of siding or biassing I speak not this as if I had more feares then other men or were for any of the new jealousies these are the feares of severall of our Parliaments There is aprohibition in two Statutes That no man of the Law shall be from henceforth Justice of Assises or of the common deliverance of Gaoles in his own Countrey i 8 R. 2. c. 2. 13 H. 4. c. 2. and a third Statute of confirmation is more full it sayes That whereas it is enacted that no man learned in the Lawes of this Realm should c. be Justice of Assise in the Country where he dwelleth since divers men learned in the Lawes c. have by their means and policy and for their own commodity c. obtained to be Justices of Assises in the Countries and Counties where they were born or were inhabiting whereby some jealousies of their affection and favour to their kinsmen alliance and friends c. hath been conceived and had c. enacted c. that no Justice c. use nor exercise c. as before k 33 H. 8. c. 24. Upon such like reason is there another Statute enacting to this purpose that no Lord or other in the Countrey sit upon the Bench with the Justices of Assise l 10 R. 2. And as nothing humane I might say divine too fathered somewhere as high as upon Lycurgus his Apollo or the whispers of a Numa and his Eugeria where Gods might be fancied to descend for the production and caelestiall wisdom to flow into it never so excellently contrived can please all men so perhaps whatsoever production shall or can be it may have if not its mischiefes and inconveniences yet some failings incident to the imperfections of man in it selfe and by corruptions from without their grace and flourish may be but short nothing is so incertain in the taking as new Lawes much must be ventured much committed to fortune and if according to the Saxon form which is shewn is not yet extinguishd and what is lost in jurisdiction or rather in use in the lower Courts is supplyed as is shewn too by a way if not better yet equal to it standing Courts were every where and what is more daily open at the Countreymans doore This would not perhaps so much ease the honest just man ever upon the defensive who ever sues but for his peace and the quiet preservation of his own right as it would multiply vexatious prosecutions some the greater number and the worst men composed of malice and contention would be incouraged by it to molest others the trouble and expence being so little and the way to imbroyle so ready and neere there would be nothing but complaints the Law and its remedies would quickly he abused they would be as great a plague as some men who onely say so would have them imagined to be actions would fly thick and swarm so fast one yeere would bring forth Volumes more swelling then all the Annals now read and if every man might be the patron of his own Cause often his in justice nothing would be wanting to make the confusion periect all decency and respect would be forgotten for which nothing would be had but prodigious noise and rude tumults Farther those who now are kept off by the conscientiousnesse of the knowing Lawyer who has made a discovery into the injustice of the cause and oftentimes restreines the heady client to run on would presently be at the shock fall into the danger of a trial which being blinded with their own fury their malice onely