possessor ab intestato for a debt which the dead ought me I must sue in the temporall court These two courtes the temporall and the spirituall be so diuided that who so euer sueth for any thing to Rome or in any spirituall court for that cause or action which may be pleaded in the temporall court of the Realme by an olde lawe of Englande hee falleth into a praemunire that is hee forsetteth all his goods to the Prince and his body to remaine in prison during the Princes pleasure and not that onely but the Iudge the scribe the procurer and assessor which receiueth and doth maintaine that vsurped pleading doth incur the same daunger Whether the word praemunire doeth betoken that the authoritie iurisdiction of the realme is prouided for before and defended by that lawe and therefore it hath that name praemunire or praemuniri or because that by that lawe such an attemture hath had warning giuen before to him of the daunger into which he falleth by such attempt and then praemunire is barbarously written for praemonere praemoneri as some men haue helde opinion I will not define the effect is as I haue declared and the lawe was first made in king Richarde the secondes time and is the remedie which is vsed when the spirituall iurisdiction will goe about to encroch any thing vpon the temporall courts Because this court or forme which is called curia christianitatis is yet taken as appeareth for an externe and forren court and differreth from the policie and manner of gouernment of the Realme and is an other court as appeareth by the act and writ of praemunire than curia regis aut reginae Yet at this present this court as well as others hath her force power authoritie rule and iurisdiction from the royall maiestie and the crowne of England from no other forren potentate or power vnder God which being granted as indéede it is true it may nowe appeare by some reason that the first statute of praemuniâ—e whereof I haue spoken hath nowe no place in Englande séeing there is no pleading alibi quam in curia regis ac reginae I haue declared summarily as it were in a chart or mappe or as Aristotle termeth it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the forme and manner of the gouernement of Englande and the policie thereof and sette before your eies the principall pointes wherein it doth differ from the policie or gouernment at this time vsed in Fraunce Italie Spaine Germanie and all other countries which doe followe the ciuill lawe of the Romanes compiled by Iustinian into his pandects and code not in that sort as Plato made his common wealth or Zenophon his kingdom of Persia nor as Syr Thomas More his Vtopia being feigned common wealths such as neuer was nor neuer shall be vaine imaginations phantasies of Philosophers to occupie the time and to exercise their wittes but so as Englande standeth and is gouerned at this day the xxviij of March Anno 1565. in the vij yeare of the raigne and administration thereof by the most vertuous and noble Quéene Elizabeth daughter to King Henrie the eight and in the one fiftéeth yéere of mine age when I was ambassador for her maiestie in the court of Fraunce the scepter whereof at that time the noble Prince and of great hope Charles Maximilian did holde hauing then raigned iiij yeares So that whether I writ true or not it is easie to be séene with eies as a man would say and felt with handes Wherfore this being as a proiect or table of a common wealth truely laide before you not fained by putting a case let vs compare it with common wealthes which be at this day in esse or doe remaine discribed in true histories especially in such pointes wherein the one differeth from the other to sée who hath taken the righter truer and more commodious way to gouerne the people aswell in warre as in peace This will be no illiberall occupation for him that is a Philosopher and hath a delight in disputing nor vnprofitable for him who hath to do hath good will to serue the Prince and the common wealth in giuing counsell for the better administration thereof Thomas Smyth FINIS Monarchia Aristocratiae Democratia Iust. Rex Tyrannus Populus Dictatorship Tyrannis Respublica Domus seu familia Prouining or propagation is when a maÌ„ layeth a braÌ„ch of a Vine or Osier or any other tree into the grouÌ„d so that it taketh roote of it selfe may liue though it be cut then from the first roote or stock Pagus Oppidum Ciuitas Nobilitas maior Eldest sonnes of dukes are not earles by birth but Lordes and take their place aboue earles and so are eldest sons in respect of barons Esquires of honour or Lordes Verè Lantzknechti lancearius a speareman Eques auratus The making of a knight Sire quasi Senior Alias Tribunitijs Sauing in appels and vpon a speciall plea. Actio is the parties whole suite breue is the kings precept But somtimes it is determined by the same court onely This shoulde be ment of a respondes ouster when the opinion is against him that taketh an exception which is not peremptorie He may denie it by protestation That is not order but abuse Courtisie and not dutie Hundreds were named of townes hils or other markes This is not alwaies and in al places obserued but onely concerning the graund enquest The vse of capias and exigent vpon inditementes is otherwise They are put to fines One or two Constables hedboroughes or tithingmen The deliuerie to the Bishops prison and the purgation is taken away by statute They must be two at the least that conspired Quere Or rather high stewaâ—â— of Englandâ— No more euidence on the behalfe of the plaintife but of the defendant there may The statute of 23. Henrie 8. doth not abolish common lawe but giueth a more profitable for the plaintife In appeale the battle is tryed by the parties onely and in writs of right by champions The battle or Iurie is at the election of the defendant Sent for by Sub poena Gardian in cheualry and gardian in Socage But the Lorde shalbe punished for the wast by losse of the ward or treble dammages if that suffice not She is no Ladie by the law although so called of courtisie It is auoidable after the husbandes death except it be for xxi yeares or three liues according to the statute or except they leuie a fine She shalbe endowed at y e discretion of the sherife except in few cases Litleton did not interpret the word feodu simply but rather define or describe the nature therof Litleton seene in the tongues as Sir Thomas Smith was in Litleton Which ought to be tride in the temporall court
Triumuirate of Octauius Antonius and Lepidus The common wealth and rule of the people as in the expulsing of the decemuiri and long after especially after the law was made either by Horatius or as some would haue it Hortentius quod plebs sciuerit id populum teneat And the ruling and vsurping of the popular and rascall as a little before Sylla his reigne and a little before Caius Caesars reigne For the vsurping of the rascality cā neuer long endure but necessarily breedeth quickly bringeth forth a tyrant Of this hath Athens Syracuse Lacedemon and other old auncient ruling Cities had experience and a man neede not doubt but that other commō wealthes haue followed the same rate For the nature of man is neuer to stand still in one maner of estate but to grow from the lesse to the more and decay from the more againe to the lesse till it come to the fatall end and destruction with many turnes and turmoyles of sicknesse recouering seldome standing in a perfect health neither of a mans bodie it selfe nor of the politique bodie which is compact of the same Of the question what is right and iust in euerie common wealth CHAP. 5. SO when the common wealth is euill gouerned by an euill ruler and vniust as in the three last named which be rather a sickenesse of the politique bodie than perfect good estates if the lawes be made as most like they be alwayes to maintaine that estate the question remaineth whether the obedience of them be iust and the disobedience wrong the profit and conseruation of that estate right and iustice or the dissolution and whether a good and vpright man and louer of his countrie ought to maintaine and obey them or to seeke by all meanes to abolish them which great hautie courages haue often attempted as Dion to rise vp against Dionysius Thrasibulus against the xxx tyrantes Brutus and Cassius against Caesar which hath bin cause of many commotions in common wealthes whereof the iudgement of the common people is according to the euent and successe of them which be learned according to the purpose of the doers and the estate of the time then present Certaine it is that it is alwayes a doubtfull and hasardous matter to meddle with the chaunging of the lawes and gouernement or to disobey the orders of the rule or gouernment which a man doth finde alreadie established That common wealthes or gouernements are not most commonly simple but mixt CHAP. 6 NOw although the gouernements of common wealthes be thus diuided into three and cutting ech into two so into sixe yet you must not take that ye shall finde any common wealth or gouernement simple pure and absolute in his sort and kinde but as wise men haue diuided for vnderstandinges sake and fantasied iiii simple bodies which they call elementes as fire ayre water earth and in a mans bodie foure complexions or temperatures as cholericke sanguine phlegmatique and melancolique not that ye shall finde the one vtterly perfect without mixtion of the other for that nature almost will not suffer but vnderstanding doth discerne ech nature as in his sinceritie so seldome or neuer shall you finde common wealthes or gouernement which is absolutely and sincerely made of any of them aboue named but alwayes mixed with an other and hath the name of that which is more and ouerruleth the other alwayes or for the most part The definition of a king and of a tyrant CHAP. 7. WHere one person beareth the rule they define that to be the estate of a king who by succession or election commeth with the good will of the people to that gouernement and doth administer the common wealth by the lawes of the same and by equitie and doth seeke the profit of the people as much as his owne A tyraunt they name him who by force commeth to the Monarchy against the will of the people breaketh lawes alreadie made at his pleasure maketh other without the aduise and consent of the people and regardeth not the wealth of his communes but the aduancement of him selfe his faction kindred These definitions du containe three differences the obtaining of the authoritie the maner of administration thereof the butte or marke whereunto it doth tend and shoote So as one may be a tyrant by his entrie and getting of the gouernement a king in the administration thereof As a man may thinke of Octauius and peraduenture of Sylla For they both cōming by tyranny and violence to that state did seeme to trauaile verie much for the better order of the common wealth howbeit either of them after a diuerse maner An other may be a king by entrie a tyrant by administration as Nero Domitian and Commodus for the empire came to them by succession but their administration was vtterly tyrannicall of Nero after fiue yeares of Domitian and Commodus very shortly vpon their new honour Some both in the comming to their Empire and in the butte which they shoot at be kings but the maner of their ruling is tyrannicall as many Emperous after Caesar and Octauius and many Popes of Rome The Emperours claime this tyrānicall power by pretence of that Rogation or plebiscitum which Caius Caesar or Octauius obtained by which all the people of Rome did conferre their power authority vnto Caesar wholly The Pope groundeth his from Christ cui omnis potestas data est in coelo in terra whose successor he pretendeth to be yet the generall Councels make a strife with him to make the Popes power either Aristocratian or at the least legitimum regnum would faine bridle that absolutam potestatem Some men doe iudge the same of the kinges of Fraunce and certaine Princes of Italie and other places because they make abrogate lawes and edictes lay on tributs and impositions of their own will or by the priuate Counsell and aduise of their friends and fauorites only without the consent of the people The people I call that which the word populus doth signifie the whole bodie and the three estates of the common wealth and they blame Lewes the xi for bringing the administration royall of Fraunce from the lawfull and regulate raigne to the absolute and tyrannicall power and gouernement He himselfe was wont to glory and say he had brought the crowne of Fraunce hors de page as one would say out of Wardship Of the absolute king CHAP. 8. OTher do call that kinde of administration which the Greekes do call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not tyranny but the absolute power of a king which they would pretende that euerie king hath if he would vse the same The other they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the Royall power regulate by lawes of this I will not dispute at this time But as such absolute administration in time of warre when all is in armes and when lawes hold their peace because they cannot be heard is most
necessarie so in time of peace the same is verie daungerous aswell to him that doth vse it and much more to the people vpon whom it is vsed whereof the cause is the frailtie of mans nature which as Plato saith cannot abide or beare long that absolute and vncontrowled authoritie without swelling into too much pride and insolencie And therefore the Romances did wisely who woulde not suffer any man to keepe the Dictatorship aboue fire monethes because the Dictators for that time had this absolute power which some Greekes named a lawfull tyrannie for a time As I remember Aristotle who of all writers hath most absolutely methodically treated of the diuision and natures of common wealthes maketh this sort of gouernmēt to be one kind of kings But all commeth to one effect for at the first all kinges ruled absolutely as they who were either the heades most ancient of their families deriued out of their own bodies as Adam Noa Abraham Iacob Esau reigning absolutely ouer their owne children and bondmen as reason was or else in the rude world amongest barbarous ignorant people some one then whom God had endewed with singular wisedome to inuent thinges necessary for the nourishing and defence of the multitude and to administer iustice did so farre excell other that all the rest were but beastes in comparison of him and for that excellencio willingly had this authoritie giuen him of the multitude and of the Gentils when he was dead almost when he was yet lyuing was taken for a God of others for a Prophet Such among the Iewes were Moses Iosua the other iudges as Samuel c. Romulus Numa amongest the Romances Lycurgus and Solon diuerse other among the Greekes Zamolxis among the Thracians Mahomet among the Arabians And this kinde of rule among the Greekes is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which of it selfe at the first was not a name odious But because they who had such rule at the first did for the most part abuse the same wared insolent proude vniust and not regarding the common wealth committed such actes as were horrible and odious as killing mē without cause abusing their wives daughters taking and spoyling all mens goods at their pleasures and were not shepheardes as they ought to be but rather robbers and deuourers of the people wherof some were contēners of God as Dionysius other while they lyued like diuils and would yet be adored accompted for Gods as Caius Caligula and Domitian that kind of administration and maner also at the first not euill hath taken the signification definition of the vice of the abusers so that now both in Greeke Latine and English a tyrant is counted he who is an euill king who hath no regard to the wealth of his people but seeketh onely to magnifie himselfe and his and to satisfie his vicious and cruell appetite without respect of God of right or of the law because that for the most part they who haue had that absolute power haue beene such Of the name king thadministration of England CHAP. 9. THat which we call in one syllable king in english the olde english men and the Saxons from whom our tōgue is deriued to this day calleth in two syllabes cyning which whether it commeth of cen or ken which betokeneth to know vnderstād or can which betokeneth to be able or to haue power I can not tell The participle absolute of thone we vse yet as when we say a cūning man Vir prudens aut sciens the verbe of thother as I can do this possum hoc facere By olde and auncient histories that I haue red I do not vnderstand that our nation hath vsed any other generall authoritie in this realme neither Aristocraticall nor Democraticall but onely the royall and kingly maiestie which at the first was diuided into many and sundrie kinges ech absolutely reigning in his countrie not vnder the subiectiō of other till by fighting thone with thother the ouercommed alwayes falling to the augmentation of the vanquisher and ouercommer at the last the realme of England grew into one Monarchie Neither any one of those kinges neither he who first had all tooke any inuestiture at the hād of Themperour of Rome or of any other superiour or forraine prince but helde of God to himselfe and by his sword his people and crowne acknowledging no prince in earth his superiour and so it is kept holden at this day Although king Iohn by the rebellion of the nobilitie ayded with the daulphin of Fraunce his power to appease the Pope who at that time possessing the consciences of his subiectes was thē also his enemy and his most greeuous torment as some histories do write did resigne the crowne to his legate Pandulphus and tooke it againe from him as from the Pope by faith and homage and a certaine tribute yearly But that act being neither approoued by his people nor established by act of parliament was forthwith and euer sithens taken for nothing either to binde the king his successors or subiectes VVhat is a common wealth and the partes thereof CHAP. 10. TO be better vnderstood hereafter it is necessarie yet to make a third diuision of the common wealth by the partes thereof A common wealth is called a society or common doing of a multitude of free men collected together and vnited by common accord couenauntes among themselues for the conseruation of themselues aswell in peace as in warre For properly an host of mē is not called a common wealth but abusiuely because they are collected but for a time and for a fact which done ech diuideth himselfe from others as they were before And if one man had as some of the olde Romanes had if it be true that is written v. thousande or x. thousande bondmen whom he ruled well though they dwelled all in one citie or were distributed into diuerse villages yet that were no common wealth for the bōdman hath no communion with his master the wealth of the Lord is onely sought for and not the profit of the slaue or bondman For as they who write of these thinges haue defined a bondman or a slaue is as it were sauing life and humane reason but the instrumēt of his Lord as the axe the saw the chessyll and goluge is of the charpenter Truth it is the charpenter looketh diligently to saue correct and amend all these but it is for his owne profit and in consideration of him selfe not for the instrumentes sake And as these be instruments of the carpenter so the plow the cart the horse oxe or asse be instrumentes of the husbandman and though one husbandman had a great number of all those and looked well to them it made no common wealth nor could not so be called For the priuate wealth of the husbandman is onely regarded and there is no mutuall societie or portion no law or pleading betweene thone and
also we do reiect women as those whom nature hath made to keepe home and to nourish their familie and children and not to medle with matters abroade nor to beare office in a citie or common wealth no more than children and infantes except it be in such cases as the authoritie is annexed to the blood and progenie as the crowne a dutchie or an erledome for there the blood is respected not the age nor y e sexe Whereby an absolute Quéene an absolute Dutches or Countesse those I call absolute which haue the name not by being maried to a king duke or erle but by being the true right next successors in the dignitie and vpon whom by right of the blood that title is descended These I say haue the same authoritie although they be women or children in that kingdome dutchie or earledome as they shoulde haue had if they had bin men of full age For the right and honour of the blood and the quietnes and suertie of the realme is more to be considered than either the tender age as yet impotent to rule or the sexe not accustomed otherwise to intermeddle with publicke affaires being by common intendment vnderstood that such personages neuer do lacke the counsell of such graue and discreete men as be able to supplie all other defectes This as I sayde is not enough But the diuision of these which be participant of the common wealth is one way of them that beare office the other of them that beare none the first are called magistrates the second priuate men Another the like was among the Romanes of Partricij plebei thone striuing with thother a long time the patricij many yeares excluding the plebes from bearing rule vntill at last all magistrates were made cōmon betweene thē yet was there another diuision of the Romanes into senatores equites and plebs the Greekes had also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Frēch haue also at this day les nobles la populare or gentils homes villaines we in England diuide our men commonly into foure fortes gentlemen citizens and yeomen artificers and laborers Of gentlemen the first and chiefe are the king the prince dukes marquises earles vicountes barrons and these are called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the nobility and all these are called Lords and noblemen next to these be knights esquiers and simple gentlemen Of the first part of gentlemen of englande called Nobilitas maior CHAP. 17. DUkes marquises erles vicountes and barrons either be created by the prince or come to that honor by being the eldest sonnes as highest next in succession to their parentes For the eldest of dukes sonnes during his fathers lyfe is called an earle an earles sonne is called by the name of a vicount or baron or else according as the creation is The creation I cal the first donation and condition of the honour giuen by the prince for good seruice done by him and aduauncement that the prince will bestowe vpon him which with the title of that honour is commonly but not alwayes giuen to him and to his heires males only the rest of the sonnes of the nobilitie by the rigor of the lawe be but esquiers yet in common speeche all dukes and marquises sonnes and the eldest sonne of an earle be called Lordes The which name commonly doth agree to none of lower degree than barrons excepting such onely as be thereunto by some speciall office called The barrony or degree of Lordes doth answere to the dignitie of the Senators of Rome and the title of our nobilitie to their patricij when patricij did betoken senatores aut senatorum filios Census senatorius was in Rome at diuerse times diuerse and in Englande no man is created barron excepte he may dispend of yearly reuenue one thousand poundes or one thousand markes at the least Vicountes earles marquises and dukes more according to the proportion of the degree and honour but though by chaunce he or his sonne haue lesse he keepeth his degree but if they decay by excesse and be not able to maintaine the honour as senatores Romani were amoti senatu so sometimes they are not admitted to the vpper house in the parliament although they keepe the name of Lorde still Of the second sort of gentlemē which may be called Nobilitas minor first of knightes CHAP. 18. NO man is a knight by succession not the king or prince And the name of prince in england 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 betokeneth the kinges eldest sonne or prince of wales although the king himselfe his eldest sonne and all dukes be called by generall name princes But as in Fraunce the kinges eldest sonne hath the title of the daulphine and he or the next heire apparant to the crowne is monsire so in Englande the kinges eldest sonne is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the prince Knightes therefore be not borne but made either before the battle to encourage them the more to aduenture their liues or after the conflict as aduauncement for their hardinesse and manhood alreadie shewed or out of the warre for some great seruice done or some good hope through the vertues which do appeare in them And they are made either by the king himselfe or by his commission and royall authoritie giuen for the same purpose or by his liuetenaunt in the warres who hath his royall and absolute power committed to him for that time And that order seemeth to aunswere in part to that which the Romanes called Equites Romanos differing in some pointes and agreeing in other as their commō wealth and ours do differ and agree for neuer in all pointes one common wealth doth agree with an other no nor long time any one common wealth with it selfe For al chaungeth continually to more or lesse and still to diuerse diuerse orders as the diuersity of times do present occasion and the mutabilitie of mens wittes doth inuent and assay new wayes to reforme and amende that werein they do finde fault Equites Romani were chosen ex censu y e is according to their substance and riches So be knightes in England most commonly according to the yearely reuenew of their landes being able to maintaine that estate yet all they that had Equestrem censum non legebantur equites No more are all made knightes in Englande that may dispende a knightes land or fee but they onely whom the king wil so honour The number of Equites was vncertaine and so it is of knightes at the pleasure of the prince Equites Romani had equum publicum The knightes of England haue not so but finde their own horse themselues in peace time and most vsually in warres Census equester was among the Romanes at dinerse times of diuerse valew but in England whosoeuer may dispende of his free landes 40. l. sterling of yearely reuenue by an olde law of Englande either at the coronatiō of the king or mariage of his daughter or at the
serueth thefficacie of the worde Gens in Latine betokeneth the race and sirname so the Romaines had Cornelios Sergios Appios Fabios AEmilios Pisones Iulio Brutos Valerios of which who were Agnati and therefore kept the name were also Gentiles and remaining the memorie of the glorie of their progenitors fame were gentlemē of that or that race This matter made a great strife among the Romanes when those which were Noui homines were more allowed for their vertues new and newly showen than the olde smell of auncient race newly defaced by the cowardise and euill life of their nephewes and discendauntes could make the other to be Thus the Cicerones Catones and Marij had much adoe with those auncients and therefore said Iuuenalis Malo pater tibi sit Tersites dummodo tu sis AEacidi similis vulcaniaque arma capessas Quà m te Thersiti similem producat Achilles But as other common wealthes were faine to doe so must all princes necessarily followe that is where vertue is to honour it and although vertue of auncient race be earlier to be obtained aswell by the example of the progenitors which encourageth as also through habilitie of education and bringing vp which enableth and the lastly enraced loue of tenāts neybors to such noblemen and gentlemen of whom they holde and by whom they doe dwell which pricketh forward to ensue in their fathers steps So it all this doe faile as it were great pitie it should yet such is the nature of all humaine thinges and so the world is subiect to mutability that it doth many times faile but whē it doth the prince and common wealth haue the same power that their predecessors had and as the husbandmā hath to plant a new tree where the olde fayleth so hath the prince to honour vertue where he doth finde it to make gentlemen esquiers knights barons earles marquises dukes where he seeth vertue able to beare that honour or merits and deserues it so it hath alwayes bin vsed among vs. But ordinarily the king doth only make knights and create barons or higher degrees for as for gentlemen they be made good cheape in England For whosoeuer studieth the lawes of the realme who studieth in the vniuersities who professed liberall sciences and to be shorte who can liue idly and without manuall labour and will beare the port charge and countenaunce of a gentleman he shall be called master for that is the title which men giue to esquires and other gentlemen and shall be taken for a gentleman for true it is with vs as is saide Tanti eris alijs quanti tibi feceris and if neede be a king of Heraulds shal also give him for mony armes newly made and inuented the title whereof shall pretende to haue beene found by the said Herauld in perusing and viewing of olde registers where his auncestors in times past had bin recorded to beare the same Or if he wil do it more truely and of better faith he will write that for the merittes of that man and certaine qualities which he doth see in him and for sundrie noble actes which he hath perfourmed he by the authoritie which he hath as king of Heraldes armes giveth to him and his heires these and these armes which being done I thinke he may be called a squire for he beareth ever after those armes Such men are called sometime in scorne gentlemen of the first head VVhether the maner of England in making gentlemen so easily is to be allowed CHAP. 21. A Man may make doubt question whether this maner of making gentlemen is to be allowed or no for my part I am of that opinion y e it is not amisse For first the prince looseth nothing by it as he shoulde doe it it were as in Fraunce for the yeomen or husbandmā is no more subiect to taile or taxe in Englande than the gentleman no in every payment to the king the gentleman is more charged which he beareth the gladlier and dareth not gainesaie for to save and keepe his honour and reputation In any shew or muster or other particular charge of the towne where he is he must open his purse wider and augment his portion above others or else he doth diminish his reputation As for their outward shew a gentleman if he wil be so accompted must go like a gentleman a yeoman like a yeoman and a rascall like a rascall and if he be called to the warres he must and will whatsoever it cost him array himselfe and arme him according to the vocation which he pretendeth he must shew also a more manly corage tokens of better education higher stomacke and bountifuller liberallitie than others and keepe aboute him idle seruauntes who shall doe nothing but waite vpon him So that no man hath hurt by it but he himselfe who hereby perchance will beare a bigger saile than he is able to maintaine For as touching the policie and goverment of the common wealth it is not those that haue to do with it which will magnifie them selves and goe in higher buskins than their estate will beare but they which are to be appointed are persons tryed and well knowen as shall be declared hereafter Of Citizens and Burgesses CHAP. 22. NExt to gentlemen be appointed citizens and burgesses such as not onely be free and receiued as officers within the cities but also be of some substance to beare the charges But these citizens and burgesses be to serve the common wealth in their cities burrowes or incorporate townes where they dwell Generally in the thyres they be of none accompt saue onely in the common assembly of the realme to make lawes which is called the Parliament The aunciet cities appoint iiii and ech burrough ii to haue voices in it and to giue their consent or dissent in the name of the citie or burrough for which they be appointed Of Yeomen CHAP. 23. THose whom we call yeomen next vnto the nobilitie knightes and squires haue the greatest charge and doings in the common wealth or rather are more trauailed to serue in it than all the rest as shall appeare hereafter I call him a yeoman whom our lawes doe call Legalem hominem a worde familiar in writtes and enquestes which is a fréeman borne English and may dispend of his owne frée lande in yearly reuenue to the summe of xl s. sterling This maketh if the iust value were taken now to the proportion of monies vt l. of our currant mony at this present This sort of people confesse themselves to be no gentlemen but giue the honour to al which be or take vpon them to be gentlemen and yet they haue a certaine preheminence and more estimation than laborers and artificers and commonly liue welthilie kéepe good houses do their businesse trauaile to acquire riches these be for the most part fermors vnto gentlemen which with grasing frequenting of markettes and kéeping seruauntes not idle as the gentleman doth but such as get
both their owne liuing and parte of their maisters by these meanes doe come to such wealth that they are able and daily doe buy the landes of vnthriftie gentlemen and after setting their sonnes to the schoole at the Uniuersities to the lawe of the Realme or otherwise leauing them sufficient landes whereon they may liue without labour doe make their saide sonnes by those meanes gentlemen These be not called masters for that as I saide pertaineth to gentlemen onely But to their surnames men adde goodman as if the Surname be Luter Finch White Browne they are called goodman Luter goodman White goodman Finch goodman Browne amongest their neighbours I meane not in matters of importance or in lawe But in matters of lawe and for distinction if one were a knight they would write him for example sake sir Iohn Finch knight so if he be an esquier Iohn Finch esquier or gentleman if he be no gentleman Iohn Finch yeoman For amongest the gentlemen they which claime no higher degrée and yet be to be exempted out of the number of the lowest sort thereof be written esquiers So amongest the husbandmen labourers lowest and rascall sort of the people such as be exempted out of the number of the rascabilitie of the popular bee called and written yeomen as in the degrée next vnto gentlemen These are they which olde Cato calleth Aratores and optimos ciues in Republica and such as of whom the writers of cōmon wealthes praise to haue manie in it Aristoteles namely reciteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 these tende their owne businesse come not to meddle in publike matters and iudgements but when they are called and gladde when they are delivered thereof are obedient to the gentlemen and rulers and in warre can abide trauaile and labour as men vsed to it yet within it soone at an ende that they might come home liue of their owne When they are foorth they fight for their Lordes of whom they hold their landes for their wiues and children for their countrey and nation for praise and honour against they come home and to haue the loue of their Lorde and his children to be continued towardes them and their children which have aduentured their liues to and with him and his These are they which in the old world gat that honour to Englande not that either for witte conduction or for power they are or were euer to be compared to the gentlemen but because they be so manie in number so obedient at the Lordes call so strong of bodie so heard to endure paine so couragious to aduenture with their Lorde or Captaine going with or before them for else they be not hastie nor neuer were as making no prosession of knowledge of warre These were the good archers in times past and the stable troupe of footemen that affaide all France that would rather die all than once abandon the knight or gentleman their Captaine who at those daies commonly was their Lorde and whose tenauntes they were readie besides perpetuall shame to be in danger of vndoing of them selues all theirs if they should showe any signe of cowardise or abandon the Lorde Knight or Gentlemen of whom they helde their liuing And this they haue amongest them from their forefathers tolde one to an other The gentlemen of France and the yeoman of Englande are renowned because in battle of horsemen Fraunce was many times too good for vs as we againe alway for them on foote And gentlemen for the most part be men at armes and horsemen and yeomen commonlie on foote howesoeuer it was yet the gentlemen had alwaies the conduction of the yeomen and as their captaines were either a foote or vppon a little nagge with them and the Kinges of Englande in foughten battles remaining alwaies among the footemen as the French Kinges amongst their horsemen Each Prince therby as a man may gesse did shew where he thought his strength did consist What a yeoman is I haue declared but from whence the worde is deriued it is hard to say it cannot be thought that yeomen should be said a young man for commonly wee doe not call any a yeoman till he be married and haue children and as it were haue authoritie among his neighbours Yonker in lowe dutch betokeneth a meane gentleman or a gay fellowe Possible our yeomen not beeing so bolde as to name themselues gentlemen when they came home were content when they had heard by frequentation with lowe dutchmen of some small gentleman but yet that would be counted so to be called amongest them yonker man the calling so in warres by mockage or in sport thone an other when they come home yonker man and so yeoman which worde now signifieth among vs a man well at ease and hauing honestlie to liue and yet not a gentleman whatsoeuer that worde yonker man yonke man or yeoman doth more or lesse signifie to the dutch men Of the fourth sort of men which doe not rule CHAP. 24. THe fourth sort or classe amongest vs is of those which the olde Romans called capite censij proletarij or operae day labourers poore husbandmen yea marcantes or retailers which haue no frée lande copiholders and all artificers as Taylers Shoomakers Carpenters Brickemakers Bricklayers Masons c. These haue no voice nor authoritie in our common wealth and no account is made of them but onelie to be ruled not to rule other and yet they be not altogether neglected For in cities and corporate townes for default of yeomen enquests and Iuries are impaneled of such manner of people And in villages they be commonly made Churchwardens alecunners and manie times Constables which office toucheth more the common wealth and at the first was not imployed vppon such lowe and base persons Wherefore generally to speake of the common wealth or policie of Englande it is gouerned administred manured by thrée sortes of persons the Prince Monarch and head gouerner which is called the king or if the crowne fall to a woman the Quéene absolute as I haue héeretofore saide In whose name and by whose authoritie all things are administred The gentlemen which be diuided into two partes the Baronie or estate of Lordes conteyning barons and all that bee aboue the degrée of a baron as I haue declared before and those which be no Lords as Knightes Esquires and simplely gentlemen The thirde and last sorte of persons is named the yeomanrie each of these hath his part and administration in indgementes corrections of defaultes in election of offices in appointing and collection of tributes and subsidies or in making lawes as shall appeare héereafter THE SECOND booke Of the Parliament and the authoritie thereof CHAP. 1. THe most high and absolute power of the realme of Englande consisteth in the Parliament For as in warre where the king himselfe in person the nobilitie the rest of the gentilitie and the yeomanrie are is y e force and power of Englande so in peace consultation where the Prince is
a certaine proportiō betwéene the scarcity and plentie of other thinges with gold and siluer as I haue declared more at large in my booke of monie For all other measures and weightes aswell of drie thinges as of wet they haue accustomed to be established or altered by the Parliament and not by the princes proclamation only The prince vseth also to dispence with lawes made whereas equitie requireth a moderation to be had and with paynes for transgression of lawes where the payne of the lawe is applyed onely to the prince But where the forfaite as in popular actions it chaunceth many times is part to the prince the other part to the declarator detector or informer there the prince doth dispence for his owne part onely Where the criminall action is intended by inquisition that maner is called with vs at the princes suite the prince giueeth absolution or pardon yet with a clause modo stet rectus in curia that is to say that no man obiect against the offendor Whereby notwithstanding that he hath the princes pardon if the person offended will take vppon him the accusation which in our language is called the appeale in cases where it lieth the princes pardon doth not serue the offendor The prince giueth all the chiefe and highest offices or magistracies of the realme be it of iudgement or dignitie temporall or spirituall and hath the tenthes and first fruites of all Ecclesiasticall promotions except in the Uniuersities and certaine Colledges which be exempt All writtes executions and commaundementes be done in the princes name We doe say in England the life and member of the kinges subiectes are the kinges onely that is to say no man hath hault nor moyenne iustice but the king nor can hold plea thereof And therefore all those pleas which touche the life or the mutilation of man be called pleas of the crowne nor can be dooke in the name of any inferior person than he or shée that holdeth the crowne of Englande And likewise no man can giue pardon thereof but the prince onely Although in times past there were certaine countie Palatines as Chester Durham Clie which were hault iusticers and writtes went in their name and also some Lorde marchers of Wales which claymed like priuiledge All these are now worne away The supreme iustice is done in the kinges name and by his authoritie onely The Prince hath the wardshippe and first mariage of all those that hold landes of him in chiefe And also the gouernement of all fooles natural or such as be made by aduenture of sicknes and so continue if they be landed This being once graunted by act of Parliament although some inconuenience hath béene thought to grow thereof sith that time it hath béene thought verie vnreasonable yet once annexed to the crowne who ought to go about to take the clubbe out of Hercules hand And being gouerned iustly rightly I see not so much inconuenience in it as some men would make of it diuerse other rights and preeminences the prince hath which be called prerogatiues royalles or the prerogatiue of the king which be declared particularly in the bookes of the common lawes of England To be short the prince is the life the head and the authoritie of all thinges that be doone in the realme of England And to no prince is doone more honor and reuerence than to the King and Queene of Englande no man speaketh to the prince nor serueth at the table but in adoration and kneeling all persons of the realme be bareheaded before him insomuch that in the chamber of presence where the cloath of estate is set no man dare walke yea though the prince be not there no man dare tarrie there but bareheadded This is vnderstood of the subiectes of the realme For all strangers be suffered there and in all places to vse the manner of their countrie such is the ciuilitie of our nation The chiefe pointes wherein one common wealth doth differ from an other CHAP. 4. NOw that we haue spoken of the parliament which is the whole vniuersall and generall consent and authoritie aswell of the prince as of the nobilitie and commons that is to say of the whole head and bodie of the realme of England and also of the prince which is the head life and gouernor of this common wealth there remaineth to shewe how this head doth distribute his authoritie and power to the rest of the members for the gouernment of this realme and the commō wealth of the politique bodie of England And whereas as all common wealthes and gouernmentes be most occupyed and be most diuerse in the fashion of fiue thinges in making of lawes and ordinaunces for their owne gouerment in making of battel peace of truce with forraine nations in prouiding of mony for the maintenance of themselues within thēselues defence of themselues against their enemies in choosing and election of the chiefe officers and magistrates and fiftly in the administration of iustice The first and thirde we haue shewed is doone by the prince in parliament The seconde and fourth by the prince himselfe The fift remaineth to be declared Of the three maners and formes of trialles or iudgementes in England CHAP. 5. By order and vsage of Englande there is three wayes and maners whereby absolute and definite iudgement is giuen by parliament which is the highest and most absolute by battle and by the great assise Triall or iudgement by parliament CHAP. 6. THe matter of giuing iudgement by parliament betweene priuate and priuate man or betweene the prince and any priuate man be it in matters criminall or ciuill for land or for heritage doth not differ frō thorder which I haue prescribed but it proceedeth by bill thrise read in ech house and assented to as I haue saide before and at the last day confirmed and allowed by the prince Howbeit such bils be seeldome receaued because that great counsell being enough occupyed with the publique affaires of the realme will not gladly intermedle it selfe with priuate quarels questions Triall of iudgement by battle CHAP. 7. THis is at this present not much vsed partly because of long time the Pope and the cleargie to whom in times past we were much subiect alwayes cryed against it as a thing damnable and vnlawful and partly because in all common wealthes as to the tongue so to the maners fashions habites yea and kindes of trials and iudgmentes and to all other thinges that is therein vsed time and space of yeares bringeth a chaunge But I could not yet learne that it was euer abrogated So that it remaineth in force whensoeuer it be demanded The maner of it is described in Briton The triall by affise or xij men first of the three partes which be necessary in iudgement CHAP. 8. THe two first iugdementes be absolute supreme and without appeale and so is also the iudgement by the great affise And because our manner of iudgementes in England is in