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
concerning such a matter say yea Then they which allowe the bill crie yea and as many as wil not say no as the crie of yea or no is bigger so the bill is allowed or dashed If it be a doubt which crie is the bigger they diuide the house the speaker saying as many as doe alowe the bill goe downe with the bill and as many as do not sitte still So they diuide themselues and being so diuided they are numbred who make the more part and so the bill doeth spéede It chaunceth sometime that some part of the bil is allowed some other part hath much contrariety and doubt made of it and it is thought if it were amended it would goe forwarde Then they chuse certaine cōmittees of them who haue spoken with the bil against it to amende it and bring it in againe so amended as they amongest them shall thinke méete and this is before it is engrossed yea some time after But y e agréement of these committees is no preiudice to the house For at the last question they will either accept it or dash it as it shall séeme good notwithstanding y ◠whatsoeuer the committees haue doone Thus no bill is an act of Parliament ordinaunce or edict of law vntill both the houses seuerallie haue agréed vnto it after the order aforesaide no nor then neither But the last day of that Parliament or session the Prince cōmeth in person in his Parliament robes and sitteth in his state all the vpper house sitteth about the Prince in their states and order in their robes The speaker with all the common house commeth to the barre and there after thankesgiuen first in the Lordes name by the Chaunceller c. and in the commons name by the speaker to the Prince for that hee hath so great care of the good gouernement of his people and for calling them together to aduise of such thinges as should be for the reformation establishing ornament of the common wealth the Chaunceller in y e Princes name giueth thankes to the Lords cōmons for their paines and trauailes taken which he saith the Prince will remember and recompence when time and occasion shall serue and y ◠he for his part is ready to declare his pleasure concerning their procéedings whereby the same may haue perfect life accomplishment by his princelie authoritie and so haue the whole consent of the Realme Then one reades the title of euerie act which hath passed at that session but only in this fashion An act cōcerning such a thing c. It is marked there what the Prince doth allowe and to such he sayth Le roy or la royne le veult And those be taken nowe as perfect lawes and ordinances of the Realme of Englande and none other and as shortlie as may be put in print except it be some priuate cause or lawe made for the benefit or preiudice of some priuate man which the Romans were wont to call priuilegia These be onelie exemplified vnder the seale of the Parliament and for the most part not printed To those which the Prince liketh not he answereth Le roy or la royne saduisera those be accounted vtterly dashed and of no effect This is the order and forme of the highest and most authenticall court of Englande by vertue whereof all those things be established whereof I spake before and no other meanes accounted vailable to make any new forfaiture of life member or landes of any English man where there was no lawe ordayned for it before Nowe let vs speake of the saide partes when they be seuerall Of the Monarch King or Queene of Englande CHAP. 3. THe Prince whom I nowe call as I haue often before the Monarch of Englande King or Quéene hath absolutelie in his power the authoritie of warre and peace to defie what Prince it shall please him and to bid him warre and againe to reconcile himselfe and enter into league or truce with him at his pleasure or the aduice onely of his priuie consell His priuie counsell be chosen also at the Princes pleasure out of the nobilitie or baronie and of the Knightes and Esquires such and so many as he shal thinke good who doth consult daily or when néede is of the weightie matters of the Realme to giue therein to their Prince the best aduice they can The Prince doth participate to them all or so many of them as he shall thinke good such legations and messages as come from forren Princes such letters or occurrentes as be sent to himselfe or to his secretaries and kéepeth so many ambassades and letters sent vnto him secret as he will although these haue a particular oth of a counseller touching faith and secrets administred vnto them when they be first admitted into that companie So that héerein the kingdome of Englande is farre more absolute than either the dukedome of Uenice is or the kingdome of the Lacedemonians was In warre time in the field the Prince hath also absolute power so that his worde is a law he may put to death or to other bodilie punishment whom he shall thinke so to deserue without processe of lawe or forme of iudgement This hath béene sometime vsed within the Realme before any open warre in sodden insurrections and rebellions but that not allowed of wise and graue men who in that their iudgment had consideration of the consequence and example asmuch as of the present necessitie especiallie when by anie meanes the punishment might haue béene doone by order of lawe This absolute power is called marciall lawe and euer was and necessarilie must be vsed in all campes and hostes of men where the time nor place do suffer the tariance of pleading and processe be it neuer so short and the important necessitie requireth spéedie execution that with more awe the souldier might be kept in more straight obedience without which neuer captaine can doe anie thing vaileable in the warres The prince vseth also absolute power in crying and decreeing the mony of the realme by his proclamation onely The mony is alwayes stamped with the pinces image and title The forme fashion maner weight finenesse and basenesse thereof is at the discretion of the prince For whom should the people trust more in that matter than their prince seeing the coine is only to certifie the goodness of the mettall and the weight which is affirmed by the princes image and marke But if the prince will deceaue them and giue copper for siluer or golde or enhaunce his coyne more than it is worth he is deceaued himselfe as well as he doth go about to deceaue his subiectes For in the same sorte they pay the prince his rentes and customes And in time they will make him pay rateably or more for meate drinke and victualles for him and his and for their labour which experience doth teach vs nowe in our dayes to be doone in all regions For there euer hath béene euer will be
pleading place in Rome might be couered ouer with canuas as their theaters were to the intent that the plaintifes and defendauntes that were there might plead their matters more at ease and not be in so much danger of their health by the heate of the sunne striking full and open vpon their heades which was no smal griefe and disease specially at Rome Nay saith Cato for my part I had rather with that all the waies to the place of pleading were cast ouer with galthrops that the féete of such as loue so well pleading should féele so much paine of those prickes in going thither as their heades doe of the sunne in tarrying there he ment that they were but idle whot heades busie bodies and troublesome men in the common wealth that did so nourish pleading good labourers and quiet men could bee content to ende their matters at home by iudgement of their neighbours and kinsfolke without spending so their money vpon procurers and aduocates whom we call attornies counsellers Sergeants and generallie men of lawe Those be accounted profitable citizens who attende their honest labour and businesse at home and not stande waiting and gaping vppon their rolles and processe in the lawe as for the other by his iudgement it was no matter what mischiefe they suffered To the other question of the chancerie this I answere That our lawe which is called of vs the common lawe as ye would say Ius ciuile is and standeth vpon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Ius summum and their maximees be taken so straitlie that they may not depart from the tenour of the wordes euen as the olde ciuill lawe was And therefore as that lacked the helpe of a Praetor which might moderari illud ius summum give actions where none was mitigate the exactnesse and rigour of the lawe written give exceptions as metus doli mali minoris aetatis c. for remedies and maintaine alwaies aequum bonum the same order and rancke holdeth our chauncerie and the chauncellor hath the verie authoritie héerein as had the Praeter in the olde ciuill law before the time of the Emperours So he that putteth vp his bill in the chauncerie after that he hath declared the mischiefe wherein he is hath reléefe as in the solemne forum And for so much as in this case hee is without remedie in the common lawe therefore he requireth the chauncellor according to equitie and reason to prouide for him and to take such order as to good conscience shall appertaine And the court of the chauncerie is called of the common people the court of conscience because that the chauncellor is not strained by rigour or forme of wordes of lawe to iudge but ex aequo and bono and according to conscience as I haue saide And in this court the vsuall and proper forme of pleading of Englande is not vsed but the forme of pleading by writing which is vsed in other countries according to the ciuill lawe and the tryall is not by xij men but by the examination of witnesse as in other courtes of the ciuill lawe Of Iudges in the common lawe of England and the manner of tryall and pleading there CHAP. 12. THe Prince out of the numbers of those who haue béene Counsellers or Sergeants at the law which be those who in latin are called causidici or aduocati chooseth two of the most approoued for learning age discretion and exercise of whom the one is called chiefe Iustice of the Kings bench or simply chiefe Iustice the other chiefe Iustice of the common place and others to the number of sixe or more which haue each an ordinarie fée or stipend of the Prince These doe sit at such daies as be terme which may be called Dies legitimi iuridici or fasti in their distinct places as I haue said before There they heare the pleading of all matters which doe come before them and in ciuill matters where the pleading is for money or land or possession part by writing and part by declaration and altercation of the aduocates the one with thother it doth so procéede before them till it doe come to the issue which the latines doe call statum causae I doe not meane contestationem litis but as the Rhetoritians do call statum we doe most properly call it the issue for there is the place where the debate and strife remaineth as a water held in a close and darke vessel issueth out is voided and emptied and no where else that stroke well striken is the departing of all the quarrelles Issues or status in our lawe bee ordinarily two facti and iuris Of the two manner of issues CHAP. 13. IF the question be of the lawe that is if both the parties doe agrée vpon the fact and each doe claime that by lawe he ought to haue it and will still in that sort maintaine their right then it is called a demurrer in lawe where if in the lawe the case séeme to the Iudges that sitte doubtfull it is called a checkerchamber case and all the Iudges will méete together and what they shall pronounce to be the lawe that is helde for right and the other partie looseth his action or lande for euer If the Sergeantes or counsellors doe stande vpon anie point in the law which is not so doubtful the Iudges who be taken for most expert biddes him go forwarde and if he hath no other to say but standeth vppon that point of the lawe that bidding goe forwarde is taken that he looseth his action and the defendant is licensed to depart without a day and this is where the issue or question is of the lawe or Iuris So is that case where the lawe is not doubtfull according to the matter contayned in the declaration answere replication reioinder or triplication the Iudge out of hande decideth it And it is the manner that each partie must agrée to the other stil in y e fact which he cannot denie For if he once come to denie any déede as not doone not his writing that the man by whome the aduersarie claimeth was not the aduersaries auncestor or the euidence which his aduersarie bringeth is not true or that his gift was former or any such like exception which is vaileable to abate the action or barre the partie and the other ioyneth in the affirmatiue and will auerre and proue the same this is called the issue and immediatly all question of the lawe ceaseth as agréed by both the parties that there is no question in the lawe Then as that issue facti is founde by the xij men of whom wee shall speake heareafter so the one partie or other looseth his cause and action so that contrarie to the maner of the ciuill lawe where first the fact is examined by witnesses indices tormentes and such like probations to finde out the truth thereof and that doone the aduocats doe dispute of the law to make of it what they can saying ex
haue no externe seruice wherewith to occupie their buisie heads handes accustomed to fight and quarell must néedes séeke quarels and contentions amongest themselues and become so readie to oppresse right among their neighbours as they were woont before with praise of manhoode to be in resisting iniurie offered by their enemies So that our nation vsed hereunto vpon that more insolent at home and not easie to be gouerned by Lawe and politike order men of power beginning many fraies and the stronger by factions and parties offering too much iuiurie to the weaker were occasions of making good Lawes First of reteiners that no man should haue aboue a number in his Liuerie or retinue then of the enquirie of routs and riots at euerie Sessions and of the lawe whereby it is prouided that if any by force or by riot enter vpon any possessions the Iustices of the peace shal assemble themselues remooue the force within certain time enquire thereof And further because such things are not commonlie done by meane men but by such as be of power force be not to be dealt withal of euerie man nor of meane Gentlemen if the riot be found certified to the Kings Counsell or if otherwise it be complained of the partie is sent for and he must appeare in this starre chamber where séeing except the presence of the Prince onely as it were the maiestie of the whole Realme before him being neuer so stoute he will be abashed and being called to aunswere as he must come of what degrée soeuer he be he shall be so charged with such grauitie with such reason remonstrance and of those chiefe personages of Englande one after an other handeling him on that sort that what courage soever he hath his heart will fall to the grounde and so much the more when if he make not his aunswere the better as seldome he can in so open violence he shalbe commaunded to the Fléete where he shall be kept in prison in such sort as these Iudges shall appoint him lie there till he be wearie aswell of the restraint of his libertie as of the great expences which he must there sustaine and for a time be forgotten whiles after long suite of his friendes he will be glad to be ordered by reason Sometime as his deserts be he payeth a great fine to the Prince besides great costs and dammages to the partie and yet the matter wherefore he attempteth this riot and violence is remitted to the common lawe For that is the effect of this Court to bridle such stoute noble men or Gentlemen which would offer wrong by force to any manner men and cannot be content to demaund or defend the right by order of lawe This court began long before but tooke great augmentation and authoritie at that time that Cardinall Wolsey Archebishop of Yorke was Chauncellor of Englande who of some was thought to haue first deuised y ◠Court because that he after some intermission by negligence of time augmented the authoritie of it which was at that time maruellous necessary to doe to represse the insolencie of the noble men and gentlemen of the North partes of Englande who being farre from the King and the seate of iustice made almost as it were an ordinarie warre among themselues and made their force their Lawe banding themselues with their tenaunts and seruauts to doe or reuenge iniurie one against an other as they listed This thing séemed not supportable to the noble prince King Henrie the eight and sending for them one after an other to his Court to aunswere before the persons before named after they had had remonstrance shewed them of their euill demeanor and béene well disciplined as well by words as by fléeting a while and thereby their purse and courage somwhat asswaged they began to range themselues in order and to vnderstand that they had a Prince who would rule his subiects by his lawes and obedience Sith that time this court hath béene in more estimation and is continued to this day in manner as I haue saide before Of the Courts of Wards and Liueries CHAP. 5. HE whom we call a ward in Englande is called in Latine pupillus and in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The gardian is called in Latine tutor in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A warde or infant is taken for a childe in base age whose father is dead The Romanes made two distinctions pupillum minorem the one to xiiii yere old the other was accounted from thence to xxv And as pupillus had tutorem so minor had curatorem til he came to the age of xxv These tutors or curators were accountable for the reuenues of the pupils minors lands great prouision and many lawes and orders is made for them in the bookes of the ciuil Lawe for rendering iust true accounts So that to be a gardian or tutor was accounted among them to be a charge or trouble a thing subiect to much encumbraunce and small profite so that diuerse meanes were sought for to excuse men from it With vs this is cleane contrarie for it is reckoned a profite to haue a warde For the Lorde of whom the warde doeth hold the land so soone as by the death of the father the childe falleth warde vnto him he seaseth vpon the body of the ward and his landes of which so that he doeth nourish the ward he taketh the profite without accounts and beside that offering to his ward couenable mariage without dispergement before the age of xxl. yeres if it be a man or xiiii if it be a woman If the ward refuse to take that mariage he or she must pay the value of the mariage which is commonly rated according to the profite of his landes All this while I speake of that which is called in French garde noble that is of such as holde lands of other by knight seruice for that is an other kinde of seruice which we call in Frenche gard returier we call it gard in socage that is of such as doe not holde by knight seruice but by tenure of the plough This wardship falleth to him who is next of the kinne and cannot inherite the land of the warde as the vncle by the mothers side if the land doe discend by the father and of the fathers side if the lande discend by the mother This gardian is accountable for the reuenues and profites of the land as the tutor by the ciuill Lawe to the warde or pupill so soone as he is of full age The man is not out of wardshippe by our lawe till xxj yere olde from thence he is reckoned of full age aswell as in the Romane lawes at xxv The woman at xiiij is out of warde for shée may haue an husband able to doe knightes seruice say our bookes And because our wiues be in the power as I shall tell you hereafter of their husbands it is no reason she should be in
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
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
and highest for execùtion of such commaundementes according to the lawe as the Iudges do ordaine and this is ynough for the sherife Of the xij men CHAP. 15. OF what manner and order of men in the common welth the xij men be I haue alreadie declared The sherife alwaies warneth xxiiij to appeare least peraduenture any might be sicke or haue a iust cause of absence and if there be not enowe to make an enquest the absentes be amersed For although they be called xii men as a man would say duodecim viri yet if they be xvj xx or the whole number of xxiiij that is no matter xij they must be at the least to make an enquest or as some call it a quest An enquest or quest is called this lawefull kinde of tryall by xii men In actions ciuill which is either of contractes or for lande or possession when so many of those which be warned appeare at the call as be able to make an enquest which as I saide before be no lesse then xii either part when they be come taketh their chalenges against so many of them as they will which be that he may not spende so much lande a yeare he is alied féed or seruant to his aduerse partie he is his enemie c. And two of the whole number doe trie and allowe or disallowe the rest If after exceptions there be so many reiected that there is not a full enquest in some cases that day is lost in some the enquest is filled ex circumstantibus when the quest is ful they be sworne to declare the truth of that issue according to the euidence and their conscience Then the Sergeantes of either side declare the issue and each for his client sayth as much as he can Euidences of writinges be shewed witnesses be sworne hearde before them not after the fashion of the ciuill law but openly that not only the xii but the Iudges the parties and as many as be present may heare what ech witnesse doeth say The aduerse partie or his aduocates which wee call counsellers and sergeants interrogateth sometime the witnesses and driueth them out of countenance Although this may séeme strange to our ciuillians now yet who readeth Cicero and Quintillian well shall sée that there was no other order and maner of examining witnesses or deposing among the Romans in their time When it is thought that it is enough pleaded before them and the witnesses haue saide what they can one of the Iudges with a briefe and pithie recapitulation reciteth to the xii in summe the argumentes of the sergeantes of either side that which the witnesses haue declared and the chiefe pointes of the euidence shewed in writing and once againe putteth them in minde of the issue and sometime giueth it them in writing deliuering to them the euidence which is shewed on either part if any be euidence héere is called writings of contractes autentical after the manner of England that is to say written sealed and deliuered and biddeth them goe together Then there is a baylife charged with them to kéepe them in a chamber not farre off without bread drinke light or fire vntill they be agréed that is till they all agrée vpon one verdite concerning the same issue and vppon one among them who shall speake for them all when they be agreed for it goeth not by the most part but each man must agrée They returne and in so fewe wordes as may be they giue their determination fewe I call vj or vij or viij wordes at the most for commonly the issue is brought so narrow that such number of words may be ynough to affirme or to denie it which doone they are dismissed to goe whither they will The partie with whom they haue given their sentence giueth the enquest their dinner that day most commonly and this is all that they haue for their labour notwithstanding that they come some xx some xxx or xl miles or more to the place where they giue their verdite all the rest is of their owne charge And necessarilie all the whole xij must be of the shire and iiij of them of the hundred where the lande lyeth which is in controuersie or where the partie dwelleth who is the defendant Of parties of Shires called hundreds lathes rapes wapentakes CHAP. 16. AN hundred or lath rape or wapentake be called of the diuisions or partes of shires in diuers countries diuersly named after the manner and language of each countrey For the shires be diuided some into x. xij xiij xvj xx or xxx hundreds more or lesse either that they were at the first C. townes villages in ech hundred and although now they be but xvj xx xxx xl l. lx more or lesse yet it is still called an hundred or else there were but so many at the first as be nowe or a fewe more or lesse and they did finde the king to his warres an hundred able men Lath and rape I take to be names of seruice for that so many townes in old time and in the first pouertie of the Realme did méete together in one day to carrie the Lordes corne into his barne which is called in olde English a Lath. Or that they mette at commaundement of the Lorde to reape his corne Wapentake I suppose came of the Danes or peraduenture of the Saxons For that so manie townes came by their orders then to one place where was taken a mouster of their armour and weapons in which place from them that could not finde sufficient pledges for their good abearing their weapons were taken away weapen or wapen in olde English doe signifie all armes offensiue as sworde dagger speare launce bill bowes arrowes Of the place where the monsters were taken or where the saide seruices were doone the hundreds Lathes Rapes and wapentakes had and haue yet their names which be most commonly good townes and it is to be thought at the first they were all such But sometime nowe in places whereof the hundred hath the name no mention nor memorie of a towne remaineth such mutation time bringeth with it of all thinges A hundred hath one or two high Constables who hath some authoritie ouer all the lower and particular Constables Those high Constables bee made by the Iustices of the peace of the shire and each hundred hath his baylife who is made by the Lorde if any hath that libertie or else by the sherife of the shire for the time being Of the court Baron CHAP. 17. IT may appeare strange that of xxxvj shires whereof each shire is diuided into diuers hundreds each hundred containing diuerse parishes all pleading should be but in one place that is in Westminster hall and that but in certaine times of the yeare making little more than one quarter of the yeare in the whole And one would thinke y e there should be much lacke of Iustice right and much wrong taken without redresse But it is not
confessed the crime to the Iustice of the peace and that appeare by his hande and confirmation the xij men will acquite the prisoner but they which should giue euidence pay their recognizaunce Howbeit this doth seldome chaunce except it be in small matters and where the Iustices of peace who sent the prisoner to the gaole is away If they which be bound to giue euidence come in first is read the examination which the Iustice of peace doeth giue in then is heard if he be there the man robbed what he can say being first sworne to say trueth and after the Constable and as many as were at the apprehension of the malefactor and so many as can say any thing being sworn one after an other to say truth These be set in such a place as they may sée y e Iudges and the Iustices the enquest and the prisoner heare them and be heard of them all The Iudge first after they be sworne asketh first the partie robbed if he knowe the prisoner and biddeth him looke vpon him he saith yea the prisoner sometime saith nay The partie pursuiuaunt giueth good ensignes verbi gratia I knowe thée well ynough thou robbedst me in such a place thou beatest mée thou tookest my horse from mée and my purse thou hadst then such a coate and such a man in thy companie the théefe will say no and so they stand a while in altercation then he telleth al that he can say after him likewise all those who were at the apprehension of the prisoner or who can giue any indices or tokens which we call in our language euidence against the malefactor When the Iudge hath heard them say inough he asketh if they can say any more if they say no then he turneth his spéeche to the enquest Good men saith he ye of the enquest ye haue heard what these men say against the prisoner you haue also heard what the prisoner can say for himselfe haue an eye to your othe and to your duetie doe that which God shall put in your mindes to the discharge of your consciences and marke well what is saide Thus sometime with one enquest is passed to the number of ij or iij. prisoners For if they should be charged with more the inquest will say my Lord we pray you charge vs with no more it is ynough for our memorie Many times they are charged but with one or two At their departing they haue in writing nothing giuen them but the enditement the clarke repeating to them the effect of it and shewing more that if they finde him guiltie they shall enquire what goods lands and tenements the saide person had at the time of the felonie committed and if they finde any they shal bring it in if no they shal say so If they finde him not guiltie they shall enquire whether he fled for the felonie or no. And there is a bailife to waite vpon them and to sée that no man doe speake with them and that they haue neither bread drinke meate ne fire brought to them but there to remaine in a chamber together till they agrée If they be in doubt of any thing that is saide or would heare againe some of them that giue euidence to interrogate them more at full or if any that can giue euidence come late it is permitted that any that is sworne to say the trueth may be interrogated of them to enforme their consciences This is to be vnderstood although it will séeme straunge to all nations that doe vse the ciuill Lawe of the Romane Emperours that for life and death there is nothing put in writing but the enditement onely All the rest is doone openlie in the presence of the Iudges the Iustices the enquest the prisoner and so manie as will or can come so neare as to heare it and all depositions and witnesses giuen aloude that all men may heare from the mouth of the depositors and witnesses what is saide As of this so is it of all other prisoners after y e same sort By that time that the enquests for the prisoners be dispatched it is commonlie dinner time the Iudges and Iustices goe to dinner and after dinner returne to the same place if the enquest be not readie for the prisoners they goe to some other enquests of nisiprius which be ciuill matters and priuate to driue out the time The enquests haue no sooner agréed vpon their charge one way or other but they tell the Bailife and pray to be heard and considering that they be themselues all this while as prisoners as I saide before it is no maruell though they make expedition The prisoners be sent for againe to the barre the enquest which hath agréed is called for eche one of the Iurie by his name to which he answereth Then the clarke asketh if they be agréed and who shall speake for them One or moe saith yea He that speaketh for them all is called the foreman and commonlie it is he that is first sworne then the prisoner is bidden to holde vp his hande The clarke saith vnto him Thou art endicted by the name of A. of such a place c. being therefore arraigned thou pleadest thereto not guiltie being asked howe thou would be tryed thou saydst by God and thy countrie These honest men were giuen to thee by God thy Prince for thy Countrey Hearken what they say Then he asketh of the enquest what say you Is he guiltie or not guiltie The foreman maketh aunswere in one worde guiltie or in two not guiltie the one is deadlie the other acquiteth the prisoner So that neither Iudge nor Iustice hath to doe or can reuerse alter or chaunge that matter if they say guiltie The clarke asketh what landes tenements or goods the prisoner had at the time of the felonie committed or at any time after Commonlie it is aunswered that they knowe not nor it shall not greatly néede for the Sherife is diligent enough to enquire of that for the Prince and his owne aduantage and so is the excheator also Of him whom the xij men pronounce guiltie the Iudge asketh what he can say for himselfe if he can reade demaundeth his Clergie For in many felonies as in theft of oxen shéepe money or other such things which be no open robberies by the high way side nor assaulting one by night in his house putting him that is there in feare such is the fauour of our Lawe that for the first fault the felon shalbe admitted to his Clergie for which purpose the Bishop must send one with authoritie vnder his seale to be Iudge in that matter at euerie gaole deliuerie If the condemned man demandeth to be admitted to his booke the Iudge commonly giueth him a Psalter and turneth to what place he will The prisoner readeth as well as he can God knoweth sometime very slenderly then he asketh of the Bishops commissarie legit vt clericus The commissarie must say legit or non legit for these