dubbing of the prince knight or some such great occasion may be by the king compelled to take that order honour or to pay a fine which many not so desirous of honour as of riches had rather disburse Some who for causes ar not thought worthy of y e honor and yet haue abilitie neither be made knightes though they would and yet pay the fine Xl. l. sterling at that time when this order began maketh now Cxx. l. of currant mony of Englande as I haue more at large declared in my booke of the diuersitie of standardes or the valor of monies When the Romanes did write senatus populusque Romanus they seemed to make but two orders that is of the Senate and of the people of Rome and so in the name of people they contayned equites and plebem so when we in England do say the Lordes and the commons the knights esquires other gentlemen with citizens burgeses yeomen be accompted to make the commons In ordaining of lawes the senate of Lordes of England is one house where the Archbishoppes and Bishops also be and the king or Queene for the time being as chiefe the knightes and all the rest of the gentlemē citizens and burgeses which be admitted to consult vpon the greatest affaires of the Realme be in an other house by themselues and that is called the house of the commons as we shal more clearely describe whē we speake of the parliament Whereupon this worde knight is deriued and whether it do betoken no more but that which miles doth in latine which is a souldier might be moued as a question The word souldier now seemeth rather to come of sould and paymēt and more to betoken a waged or hyred man to fight than otherwise yet Caesar in his Commentaries called soldures in the tongue gallois men who deuoted swore themselues in a certaine band or othe one to another and to the captaine which order if the Almains did follow it may be that they who were not hyred but being of the nation vppon their owne charges and for their aduauncement and by such common oth or band that did follow the warres were possibly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 called knightes or milites and nowe among the Almaines some are called lanceknights as souldiers of their band not hyred although at this day they be for the most part hirelings Or peraduenture it may be that they which were next about the prince as his garde or seruauntes picked or chosen men out of the rest being called in the Almaine language knighten which is asmuch to say as seruantes these men being found of good seruice the word afterward was taken for an honor and for him who maketh profession of armes Our language is so chaunged that I dare make no iudgement thereof Now we call him knight in english that the french calleth cheualier and the lataine equitem or equestris ordinis And when any man is made a knight he kneeling downe is stroken of the prince with his sworde naked vppon the backe or shoulder the prince saying sus or sois chiualier au nom de Dieu and in times past they added S. George and at his arising the prince saith auauncèr This is the manner of dubbing of knights at this present and that terme dubbing was the olde terme in this point and not creation At the coronation of a king or queene there be knightes of the bath made with long and more curious ceremonies But howsoeuer one by dubbed or made a knight his wife is by and by called a Ladie as well as a barons wife he himselfe is not called Lorde but hath to his name in common appelation added this syllable Sir as if he before were named Thomas William Iohn or Richard afterward he is alwayes called Sir Thomas Sir William Sir Iohn Sir Richard and that is the title which men giue to knightes in England This may suffice at this time to declare the order of knighthood yet there is an other order of knightes in England which be called the knightes of the garter King Edward the third after he had obtained many notable victories King Iohn of Fraunce King Iames of Scotland being both prisoners in the tower of London at one time and king Henrie of Castell the bastard expulsed out of his realme and Don Petro restored vnto it by the prince of Wales and Duke of Aquitaine called the blacke prince inuented a societie of honour and made a choice out of his owne realme and dominions and all Christendom and the best and most excellent renoumed persons in vertues and honour he did adorne with that title to be knightes of his order gaue them a garter decked with golde pearle and precious stones with the buckle of gold to weare daily on the left legge onely a kirtle gowne cloke chaperon collar and other august and magnificall apparell both of stuffe and fashion exquisite heroicall to weare at high feastes as to so high and princely an order was meete of which order he and his succesors Kinges and Queenes of England to be the soueraigne and the rest by certaine statutes and lawes among themselues be taken as brethren and fellowes in that order to the number of xxvi But because this is rather an ornament of the realme than any policie or gouernment thereof I leaue to speake any further of it Of Esquiers CHAP. 19. EScuier or esquier which we call commonly squire is a French worde and betokeneth Scutigerum or Armigerum and be all those which beare armes as we call them or armories as they terme them in French which to beare is a testimonie of the nobilitie or race from whence they do come These be taken for no distinct order of the common wealth but do goe with the residue of the gentlemen saue that as I take it they be those who beare armes testimonies as I haue saide of their race and therefore haue neither creation nor dubbing or else they were at the first costerels or the bearers of the armes of Lordes or knightes and by that had their name for a dignitie and honour giuen to distinguish them from a common souldier called in latine Gregarius miles Of Gentlemen CHAP. 20. GEntlemen be those whom their blood and race doth make noble and knowne 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greeke the Lataines call them all Nobiles as the French Nobles 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Nobilitas in Latine is defined honour or title giuen for that the auncestor hath bin notable in riches or vertues or in fewer wordes old riches or prowes remaining in one stock Which if the successors do kéepe and follow they be verè nobiles and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 if they doe not yet the same and wealth of their auncestors serue to couer thē so long as it can as a thing once gilted though it be copper within till the gilt be worne away This hath his reason for the Etimologie of the name
of families together within themselues how to demeane and order their matters best for the conseruation of themselues and ech of their families generally and particularly Thus a few being heades and the chiefe of their families equall in birth and nobilitie and not much different in riches gouerned their owne houses and the descendentes of them particularly and consulted in common vpon publike causes agreeing also vpon certaine lawes and orders to be kept amongst them So the best chiefest and sagest did rule and thother part had no cause to striue with them nor had no cause nor apparance to compare with anie of them neither for age nor discretion nor for riches or nobilitie The rulers sought ech to keepe and maintaine their posteritie as their sonnes and nephewes and such as shoulde succeede them and carie their names when they were deade and so render them being mortall by nature immortall by their fame and succession of posteritie hauing most earnest care to maintaine still this their cousinage and common familie aswell against forraigne and barbarous nations which were not of their progenie tongue or religion as against wilde and sanage beasts This seemeth the naturall sourse and beginning or image of that rule of the fewer number which is called of the Greekes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and of the Latines optimatum respublica The first originall or beginning of the rule of the multitude called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 CHAP. 14. NOw as time bringeth an ende of all thinges these brethren being all dead and their offpring encreasing daily to a great multitude and the reuerence due to the old fathers in such and so great number of equals fayling by the reason of the death or doting of the Elders eche owing their merites of education apart to their fathers and grandfathers and so many arising and such equalitie among them it was not possible that they should be content to be gouerned by a fewe For two thinges being such as for the which men in society and league do most striue that is honour and profitte no man of free courage can be contented to be neglected therein so that they were faine of necessitie to come to that that the more part should beare the price away in election of magistrates and rulers So that either by course or by lot ech man in turne might be receaued to beare rule and haue his part of the honour and if any were of the profit which came by administration of the common wealth For whosoeuer came of that old great grandfathers race he accompted him selfe as good of birth as any other For seruice to the coÌ„mon wealth all or such a number had done it as they coulde not be accompted few And if a few would take vpon them to vsurpe ouer the rest the rest conspiring together would soone be master ouer them and ruinate them wholly Whereupon necessarily it came to passe that the common wealth must turne and alter as before from one to a few so now from a few to many and the most part ech of these yet willing to saue the politicke bodie to conserue the authoritie of their nation to defende themselues against all other their strife being onely for empire and rule and who shoulde doe best for common wealth whereof they would haue experience made by bearing office and being magistrates This I take for the first and naturall beginning of the rule of the multitude which the Greekes called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Latines some Republica by the generall name some populi potestas some census potestas I cannot tell howe latinely That the common wealth or policie must be according to the nature of the people CHAP. 15. BY this processe and discourse it doth appeare that the mutations changes of fashions of gouernement in common wealthes be naturall do not alwayes come of ambitioÌ„ or malice And that according to the nature of the people so the commoÌ„ wealth is to it sit proper And as all these iii. kindes of common wealthes are naturall so when to ech partie or espece and kinde of the people that is applied which best agreeth like a garmeÌ„t to the bodie or shoe to the foote then the bodie politique is in quiet findeth ease pleasure and profit But if a contrary forme be giuen to a contrary maner of people as when the shoe is too litle or too great for the foote it doth hurt and encomber the conuenient vse thereof so the free people of nature tyrannized or ruled by one against their willes were he neuer so good either faile of corage and were seruile or neuer rest vntill they either destroie their king and them that would subdue them or be destroyed themselues And againe another sort there is which without being ruled by onâ—e prince but set at libertie cannot tell what they shoulde doe but either through insolencie pride and idlenes will fall to robbery and all mischiefe and to scatter and dissolue themselues or with foolish ambition and priuate strife consume one another and bring themselues to nothing Of both these two we haue histories enough to beare witnesse as the Greekes Romanes Samnites Danes Uandals and others Yet must you not thinke that al common wealthes administrations and rulinges began on this sort by prouining or propagation as is before written but many times after a great battle and long war the captaine who led a multitude of people gathered peraduenture of diuerse nations languages liking y e place which he hath by force conquered tarieth there beginneth a common wealth after this maner for the most part a kingdome As the Gothes Lumbardes in Italie the Frenchmen in Gaule the Sarasins in Spaine and part of Fraunce the Saxons in great Brittaine which is nowe called Englande of which when that one and chiefe prince is dead the nobler sort consult among themselues and either choose an other head and king or diuide it into more heads rulers so did the Lumbards in Italie and the Saxons in England or take at the first a common rule popular estate as the Zwisers did in their cantous do yet at this day or else admit the rule of a certaine fewe excluding the multitude and communaltie as the Paduans Veronenses and Venetians haue accustomed The diuision of the parts and persons of the common wealth CHAP. 16. TO make all thinges yet cleare before as we shal go there ariseth another diuision of the partes of the common wealth For it is not enough to say that it consisteth of a multitude of houses families which make stretes villages the multitude of the stretes villages make townes and the multitude of townes the realme that freemen be coÌ„sidered only in this behalf as subiects citizeÌ„s of the coÌ„monwealth not bondmen who can beare no rule nor iurisdiction ouer freemen as they who be taken but as instruments the goods and possessions of others In which consideration
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
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
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
many thinges different from the fashion vsed either in Fraunce or in Italie or in any other place where the Emperors lawes and constitutions called the ciuill lawes be put in vse it will be necessarie here to make a litle digression to the intent that that which shalbe said hereafter may be better vnderstood All pursuites and actions we call them in our English tongue pleas and in barbarous but now vsuall latine placita taking that name abusiue of the definitiue sentence whith may well be called placitum or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The French vseth the same calling in their language the sentence of their iudges areste or arest in which wordes nothwithstanding after their custome they do not founde the s. but we call placitum the action not the sentence and placitare barbarouslie or to pleade in english agere or litigare Now in all iudgements necessarily being two parties the first we call the impleader suiter demaunder or demaundaunt and plaintiffe In criminall causes if he professe to be an accuser we call him appellant or appellour and so accusation we call appeale The other we call the defendant and in criminall causes prisoner for he cannot aunswere in causes criminall before he do render himselfe or be rendred prisoner Index is of vs called Iudge but our fashion is so diuerse that they which giue the deadly stroke and either condemne or acquite the man for guiltie or not guiltie are not called Iudges but the xii men And the same order aswell is in ciuill matters and pecuniarie as in matters criminall Of pleas or actions CHAP. 9. PLeas or actions criminall be in English called pleas of the crowne which be all those which tende to take away a mans life or any mēber of him for his euill deseruing against the prince and common wealth And this name is giuen not without a cause For taking this for a principle that the life and member of an Englishman is in the power onely of the prince and his lawes when any of his subiectes is spoyled either of life or member the prince is endammaged thereby and hath good cause to aske accompt how his subiectes should come to that mischiefe And againe for so much as the prince who gouerneth the scepter and holdeth the crowne of Englande hath this in his care and charge to see the realme well gouerned the life members and possessions of his subiectes kept in peace and assuraunce he that by violence shall attempt to breake that peace and assuraunce hath forfeited against the scepter and crowne of England and therefore not without a cause in all inquisitions and inditementes if any be found by the xii men to haue offended in that behalfe streight the prince is saide to be partie and he that shall speake for the prisoner shall be rebuked as speaking against the prince Neverthelesse it is neuer defended but the prisoner and partie defendant in any cause may alleadge for him al the reasons meanes and defenses that he can and shall be peaceablie hearde and quietlie But in those pleas pursuites of the crowne procurer or aduocate he gettes none which in ciuill and pecuniarie matters be it for land rent right or possession although he plead against the prince himselfe is neuer denied Pleas ciuill be either personall or reall personall as contractes or for iniuries reall be either possessorie to aske or to keepe the possession or in rem which we cal a writte of right For that which in the ciuill lawe is called actio or formula we call writ in English so the Greekes called it worde for word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and in our barbarous latine we name it breue And as the olde Romanes had their actions some ex iure ciuili and some ex iure praetorio and ordinarily praetor dabat actiones formulas actionum so in Englande we retaine still this and haue some writtes out of the chauncerie other out of the common place or the kinges bench Of the chiefe Tribunals benches or courtes of England CHAP. 10. IN times past as may appeare to him that shall with iudgement reade the histories and antiquites of England the courtes and benches followed the king and his court wheresoever he went especially shortly after the conquest Which thing being found very cumbersome paineful and chargeable to the people it was agreed by parliament that there shoulde be a standing place where iudgement should be giuen And it hath long time béene vsed in Westminster hall which king William Rufus builded for the hall of his owne house In that hal be ordinarily séene 3. Tribunals or Iudges seates At the entrie on the right hande the common place where ciuill matters are to be pleaded specially such as touch landes or contractes At the vpper ende of the hall on the right hand the kinges bench where pleas of the crowne haue their place And on the left hand sitteth the Chauncelor accompanyed with the master of the Roules who in latine may be called custos archiuorum regis and certaine men learned in the ciuill lawe called Masters of the chauncerie in latine they may be named Assessores Of the times of pleading called termes of the Chauncelor and chauncerie CHAP. II. TWo things may be moued in question here how all Englande being so long and so large and hauing so many shyres and prouinces therein can be answered of iustice in one place and in 3. benches be they neuer so great An other whereas the kinges bench is exercised in criminall causes and in all pleas of the crowne and the common place in all ciuill causes reall and personall what place then hath the chauncerie The first question will séeme more maruelous and haue more occasion of doubt when I shall also tell that the lawe is not open at all times no not the third part of the yeare But where all other cities and common wealthes had all the yeare pleas suites and iudgementes except for certaine holy daies and haruest and vintage or when for some vrgent cause the lawe was commaunded to be stopped which is called Iustitium Contrarie in ours it is but fewe times open That is onely foure times in the yeare which they call termes After Michaelmas about ten daies during fiue or sixe wéekes at the least After Christmas about a moneth enduring by the space of thrée wéekes Then from xvij dayes after Easter by the space of thrée wéekes odde dayes Likewise from the sixt or seuenth day after Trinitie sunday during two wéekes and odde daies All the rest of the yeare there is no pleading entring nor pursuing of actions This small time and all that but in one place may séeme verse iniurious to the people who must be faine to suffer much wrong for lacke of Iustice and of place and time to pleade but vnto that héereafter I entende to answere more fully and in the meane while that shall suffise which the wise Cato answered to one who mooued that the
prisoner standeth héere at the barre if any man can say anything against him let him now speake for the prisoner standeth at his deliueraunce if no man doe then come hee is deliuered without any further proces or trouble agréeing first with the gaoler for his fées And these be called acquited by proclamation Twise euerie yeare the one is commonly in lent what time there is vacation from pleading in Westminster hall the other is in the vacation in summer The Prince doth sende downe into euerie shire of Englande certaine of his Iudges of Westminster hall and some Sergeantes at the lawe with commission to heare and determine ioyntly with the Justices of the peace all matters criminall and all prisoners which be in the gaoles These Iudges doe goe from shire to shire till they haue doone their circuit of so manie shires as be appointed to them for that yeare at the ende of the terme going before their circuit it is written and set vp in Westminster hall on what day and in what place they will be That day there méeteth all the Justices of the peace of that shire the sherife of that shire who for that time beareth their charges and asketh after allowance for it in the Exchequer The shirife hath readie for criminall causes as I writ before at the sessions of inquirie iiii v. or vi enquestes readie warned to appeare that day to serue the Prince and so manie more as he is commaunded to haue readie to go in civill matters betwixt priuate men which they call Nisi prius because that worde is in the writ In the towne house or in some open or common place there is a tribunall or place of iudgement made aloft vpon the highest bench there sitteth the two Judges which be sent downe in Commission in the midst Next them on eche side sitteth the Justices of peace according to their estate and degrée In a lower bench before them the rest of the Justices of the peace and some other gentlemen or their clarkes Before these Iudges and Justices there is a table set beneath at which sitteth the Custos rotulorum or kéeper of writtes Thexchetor the vndershirife and such clarkes as doe write At the end of that table there is a barre made with a space for thenquestes and xii men to come in when they are called behind that space another barre and there stand the prisoners which be brought thither by the gaoler all chained one to another Then the cryer crieth and commaundeth silence One of the Iudges briefely telleth the cause of their comming giueth a good lesson to the people Then the prisoners are called for by name and bidden to aunswere to their names And when the Custos rotulorum hath brought foorth their enditements the Iudges do name one or two or thrée of the prisoners that are endicted whom they will haue arraigned There the clarke speaketh first to one of the prisoners A. B. come to the barre hold vp thy hand The clarke goeth on A. B. thou by the name of A. B. of such a towne in such a countie art endicted that such a day in such a place thou hast stolen with force and armes an horse which was such ones of such a colour to such a valor and carried him away feloniously contrarie to the peace of our soueraigne Ladie the Quéene What sayest thou to it art thou guiltie or not guiltie If he will not aunswere or not aunswere directly guiltie or not guiltie after he hath béene once or twise so interrogated he is iudged mute that is dumme by contumacie and his condemnation is to be pressed to death which is one of the cruellest deathes that may be he is layd vpon a table and an other vppon him and so much weight of stones or lead laide vppon that table while as his bodie be crushed his life by that violence taken from him This death some strong stout hearted man doth choose for being not condemned of felonie his bloud is not corrupted his lands nor goods confiscate to the Prince which in all cases of felonie are commonly lost from him and his heires if he be foreiudged that is condemned for a felon by the lawe If he confesse the enditement to be true then when he is arraigned no xii men goeth vpon him there resteth but the Iudges sentence of the paine of death If he pleade not guiltie as commonly all théeues robbers murtherers doe though they haue confessed the fact before the Justice of the peace that examined them though they be taken with the maner which in Latine they call inflagranti crimine howesoever it be if he pleade there not guiltie the Clarke asketh him howe he will be tryed and telleth him he must saie by God and the Countrie for these be the words formall of this triall after Inditement and where the Prince is partie if the prisoner doe say so I will be tryed by God and the Countrie then the Clarke replyeth Thou hast béene endicted of such a crime c. Thou hast pleaded not guiltie being asked how thou wilt be tryed thou hast aunswered by God and by the Countrie Loe these honest men that be come here be in the place and stead of the Countrie and if thou hast any thing to say to any of them looke vpon them well and nowe speake for thou standest vpon thy life death Then calleth he in the first Juror B. C. come to the booke and so giueth him an othe to goe uprightlie betwixt the Prince and the prisoner c. If the prisoner obiecteth nothing against him he calleth an other and so an other till there be xii or aboue and for the most part the prisoner can say nothing against them for they are chosen but for that day and are vnknowen to him nor they know not him as I said being substantial yeomen that dwell about the place or at the least in the hundred or néere where the felonie is supposed to be committed men acquainted with daily labour and trauaile and not with such idle persons as be readie to doe such mischiefes When the enquest is full and the prisoner hath obiected nothing against them as in déede seldome he doeth for the cause aboue rehearsed The clarke saith to the cryer countes in French as ye would say recken and so nameth all those that be on the quest The crier at euerie name cryeth aloude one then ij iij. iiij and so till the number be full of xii or more then saith good men and true and then sayth aloude If any can give euidence or can saie any thing against the prisoner let him come nowe for he standeth vpon his deliuerance If no man come in then the Iudge asketh who sent him to prison who is commonly one of the Justices of peace He if he be there deliuereth vp the examination which he tooke of him and vnderneath the names of those whom he hath bound to giue euidence although the malefactor hath
be wordes formall and our men of Lawe be very precise in their words formall If he say legit the Iudge procéedeth no further to sentence of death if he say non the Iudge foorthwith or the next day procéedeth to sentence which is doone by word of mouth onelie Thou A. hast béene endicted of such a felonie and thereof arraigned thou hast pleaded not guiltie and put thy selfe vpon God and thy Countrie they haue found thée guiltie thou hast nothing to say for thy selfe the Lawe is thou shalt first returne to the place from whence thou camest from thence thou shalt goe to the place of execution there thou shalt hang till thou be dead Then he saith to the Sherife Sherife doe execution he that claimeth his Clergie is burned forthwith in the presence of the Iudges in the brawne of his hand with a hot yron marked with the letter T. for a théefe or M. for a mansleer in cases where Clergie is admitted and is deliuered to the Bishops officer to be kept in the Bishops prison from whence after a certaine time by an other enquest of Clarkes he is deliuered and let at large but if he be taken and condemned the second time and his marke espied he goeth to hanging He whom the enquest pronounceth not guiltie is acquitted foorthwith and discharged of prison paying the gaolers fées and if he knowe any priuate man who purchased his inditement and is able to pursue it he may haue an action of conspiracie against him and a large amendes but that case chaunceth seldome Certaine orders peculiar to England touching punishment of malefactors CHAP. 24. FOr any felonie manslaughter robberie murther rape and such capitall crimes as touch not treason laesam maiestatem we haue by the Lawe of England no other punishment but to hang till they be dead when they be dead euerie man may burie them that will as cōmonly they be Heading tormenting demembring eyther arme or legge breaking vpon the whéele empaciling such cruel torments as be vsed in other nations by the order of their law we haue not yet as few murthers cōmitted as any where nor it is not in the Iudges or the Iustices power to aggrauate or mitigate the punishment of the Lawe but in the Prince onely and his priuie Counsell which is maruellous seldom done Yet notable murtherers many times by the Princes commaundement after they be hanged with corde till they be dead bee hanged with chaines while they rotte in the ayre If the wife kill her husbande shée shall be burned aliue If the seruaunt kill his master hee shalbee drawen on a hurdle to the place of execution it is called petit treason Impoisoners if the person die thereof by a new lawe made in king Henrie the eights time shalbe boyled to death but this mischiefe is rare and almost vnknowen in England Attempting to impoison a man or laying await to kill a man though he wound him daungerously yet if death followe not is no fellony by the lawe of Englande for the Prince hath lost no man and life ought to be giuen we say but for life only And againe when a man is murdered all be principals and shall die euen he that doth but hold the candel to giue light to the murderers For mitigation and moderation of paines is but corruption of Iudges as we thinke Likewise torment or question which is vsed by the order of the ciuill lawe and custome of other countreis to put a malefactor to excessiue paine to make him confesse of him selfe or of his fellowes or complices is not vsed in England it is taken for seruile For what can he serue the common wealth after as a frée man who hath his bodie so haled and tormented if he be not found guiltie and what amends can be made him And if he must die what crueltie is it so to torment him before Likewise confession by torment is estéemed for nothing for if he confesse at the iudgement the tryall of the xij goeth not vpon him If he denie the fact that which he said before hindereth him not The nature of English men is to neglect death to abide no torment And therefore he will confesse rather to haue done any thing yea to haue killed his own father than to suffer torment for death our natiō doth not so much estéem as a mean tormēt In no place shal you sée malefactors go more constantly more assuredly with lesse lamentation to their death than in England Againe the people not accustomed to sée such cruell torments will pitie the person tormented and abhorre the Prince and the Iudges who should bring in such crueltie amongst them and the xij men the rather absolue him There is an olde lawe of England that if any gaoler shall put any prisoner being in his custodie to any torment to the intent to make him an approuer that is to saie an accuser or Index of his complices the gaoler shall dye therefore as a felon And to say the trueth to what purpose is it to vse torment For whether the malefactor confesse or no and whatsoeuer he saith if the enquest of xij do find him guiltie he dyeth therefore without delaye And the malefactour séeing there is no remedie and that they be his countrie men and such as he hath himselfe agreed vnto it do finde them worthie death yéeldes for the most part vnto it and doeth not repine but doth accōmodate him selfe to aske mercie of God The nature of our nation is frée stout haulte prodigall of life and bloud but contumelie beatings seruitude and seruile torment punishment it will not abide So in this nature and fashion our auncient Princes and legislators haue nourished them as to make them stout hearted couragious and souldiers not villaines and slaues and that is the scope almost of all our policie The xij as soone as they haue giuen their verdict are dismissed to goe whither they will and haue no manner commoditie profit of their labour and verdict but onely do seruice to the Prince and commonwealth Of Treason the trial which is vsed for the higher nobilitie and Barons CHAP. 25. THe same order touching trial by enquest of xij men is taken in Treason but the paine is more cruell First to be hanged taken downe aliue his bowels taken out and burned before his face then to be beheaded and quartered and those set vp in diuerse places If anie Duke Marques or any other of the degrée of a Baron or aboue Lord of the Parliament be appeached of treason or anie other capitall crime he is iudged by his péeres and equals that is the yeomanrie doth not go vpon him but an enquest of the Lordes of the Parliament and they giue their voice not one for all but eche seuerally as they do in Parliament beginning at the youngest lord And for Iudge one lord sitteth who is Constable of England for that day The iudgement once giuen he breaketh his
those haue force and be kept according to the firmitie and strength in which they are made And this is ynough of wiues and mariage Of Children CHAP. 7. OUr children be not in potestate parentum as the children of the Romans were but as soone as they be puberes which we call the age of discretion before that time nature doth tell they be but as it were partes parentum That which is theirs they may giue or sell purchase to themselues either landes and other moueables the father hauing nothing to doe therewith And therefore emancipatio is cleane superfluous we knowe not what it is Likewise sui heredes complaints de in-officioso testamento or praeteritorum liberorum non emancipatorum haue no effect nor vse in our lawe nor wee haue no manner to make lawefull children but by mariage and therefore we knowe not what is adoptio nor arrogatio The testator disposeth in his last will his moueable goods fréely as he thinketh méete and conuenient without controlement of wife or children And our testamentes for goods moueable be not subiect to the ceremonies of the ciuill lawe but made with all libertie and fréedome and iure militari Of landes as ye haue vnderstoode before there is difference for when the owner dieth his lande discendeth onely to his eldest sonne all the rest both sonnes daughters haue nothing by the common lawe but must serue their eldest brother if they will or make what other shift they can to liue except that the father in life time doe make some conueiance and estates of part of his land to their vse or els by deuise which word amongest our lawiers doth betoken a testament written sealed and deliuered in the life time of the testator before witnesse for without those ceremonies a bequest of landes is not auailable But by the common lawe if hee that dieth hath no sonnes but daughters the lande is equally diuided among them which portion is made by agréement or by lotte Although as I haue saide ordinarily and by the common lawe the eldest sonne inheriteth all the lands yet in some countries all the sonnes haue equall portion and that is called ganelkinde and is in many places in Kent In some places the youngest is sole heire and in some places after an other fashion But these being but particular customes of certaine places and out of the rule of the common law doe little appertain to the disputation of the policie of the whole Realme and may be infinite The common wealth is iudged by that which is most ordinarily and commonly doone through the whole Realme Of Bondage and Bondmen CHAP. 8. AFter that we haue spoken of all the sortes of frée men according to the diuersitie of their estates and persons it resteth to say somewhat of bondmen which were called serui which kinde of people the disposition of them and about them doth occupie the most part of Iustinians Digestes and Code The Romans had two kindes of bondmen the one which were called serui and they were either which were bought for money taken in warre left by succession or purchased by other kinde and lawefull acquisition or else borne of their bonde women and called vernae all those kinde of bondmen be called in our lawe villens in grosse as ye would say immediatly bonde to the person and his heires An other they had as appeareth in Iustinians time which they called adscripticij glebae or agri censiti These were not bond to the person but to the mannor or place and did followe him who had the manors in our lawe are called villaines regardants for because they be as members or belonging to the manor or place Neither of the one sort nor of the other haue we any number in England And of the first I neuer knewe any in the realme in my time of the seconde so fewe there be that it is not almost worth the speaking But our lawe doth acknowledge them in both those sortes Manumission of all kinde of villaines or bondmen in Englande is vsed and done after diuerse sortes and by other and more light and easie meanes than is prescribed in the ciuil lawe and being once manumitted he is not libertus manumittentis but simply liber howbeit sith our Realme hath receiued the Christian religion which maketh vs all in Christ brethren and in respect of God and Christ conseruos men began to haue conscience to hold in captiuitie and such extreme bondage him whome they must acknowledge to be his brother and as we vse to terme him Christian that is who looketh in Christ and by Christ to haue equall portion with them in the Gospel and saluation Vpon this scruple in continuance of time and by long succession the holie fathers Munkes and Friers in their confession and specially in their extreme deadly sicknesses burdened the consciences of them whom they had vnder their hands so that temporall men by little and litle by reason of that terror in their conscience were glad to manumit all their villaines but the said holie fathers with the Abbots and Priors did not in like sort by theirs for they had also conscience to impouerish and dispoyle the Churches so much as to manumit such as were bond to their Churches or to the mannors which the Church had gotten and so kept theirs still The same did the Bishoppes also till at the last and now of late some Bishoppes to make a péece of money manumitted theirs partly for argent partly for slaunders that they séemed more cruell than the temporaltie after the monasteries comming into temporall mens handes haue béene occasion that now they be almost all manumitted The most part of bondmen when they were yet were not vsed with vs so cruelly nor in that sort as the bondmen at the Romane ciuill law as appeareth by their Comedies nor as in Gréece as appeareth by theirs but they were suffered to enjoy coppieholde lande to gaine and get as other serues that nowe and then their Lordes might fléese them and take a péece of money of them as in France the Lords doe taile them whom they call their subiectes at their pleasure and cause them to pay such summes of money as they list to put vpon them I thinke both in France and England the chaunge of religion to a more gentle humane and more equall sort as the christian religion as in respectes of the Gentiles caused this olde kinde of seruile seruitude and slauerie to be brought into that moderation for necessitie first to villaines regardants and after to seruitude of landes and tenures and by litle and litle finding out more ciuill and gentle meanes and more equall to haue that doone which in time of heathenesse seruitude or bondage did they almost extinguished the whole For although all persons christians be brethren by baptisme in Iesu Christ and therefore may appeare equally frée yet some were and still might be christianed being bond and serue and whom as the