ciuill courts in this realme which master William Camden our most learned Brittaine Antiquarie did very commendably set forth in the last edition of his booke Now somewhat concerning the lawes but in speciall touching our owne nation It is said that Brutus vpon his settling in this Iland did write a booke of lawes in the Greeke tongue collected out of the Troiane lawes 1103. yeres before Christs birth which Greeke lawes the Druides first administred in this land being solemnly by vowes inhibited to promulgate them to vulgar vnderstanding From these Druides according to Caesar being found out amongst vs a colonie was deducted into Galle for the instruction of that people The frequent and reciprocall commerce and trafique betwixt the Galles and Brittaines in those times like to be by couenant or deeds ratified according to those Greeke lawes by which both the nations were gouerned should seeme as Str◅bo thinketh to confirme so much Molmutius Donwallo instituted two bookes of lawes in this land called municipiall and iudiciarie importing the statute lawes and the common lawes After him Mercia Proba the wife of king Guinteline another booke called Merciaes lawes King Afred also gathered diuers which being into one volume compiled he named a breuiarie drawen from diuers lawes of the Troians Greeks Brittaines Saxons and Danes Also Sigibert king of the East Angles published a booke called the Institutes of Lawes Edward the Confessor next king before William the first amongst the diuinest and worthiest lawyers may be registred which out of those infinite volumes of Brittish Romaine Danish and English lawes made a choise Rapsodie which he did intitle the common law as by the wordes of diuers diligent and faithfull Antiquaries appeareth After these princes king William the first vpon his great victories and militarie trauels in subduing the rebellious violence of the borderers impaling this land instituted diuers excellent and commodious lawes abolished since then abrogating others which were not so necessarie for those times as Geruas of Tilbury writeth After whom his sonne H. the first surnamed Henry Beauclerke of whom Henrie of Huntington who liued in his dayes recordeth much being a very learned and politike prince abolished certaine of them restoring diuers of the former which hee thought were more behousefull for those times And Henrie the second a prince of much mildnesse and humanitie compiled another volume diuided into the laws of this Commonwealth the statutes royall intituled But in this point I referre my selfe with the reader to the large very learned Epistle of S. Edward Coke to those bookes of Lawcases by him lately compiled And so much briefly touching the precise care and studies of former princes in ordeining collecting the laws the necessity wherof being so vulgarly knowen needeth no confirmation by further example considering how fresh it springeth in our memories omitting the most sage prudent prouisiō of that Numa of England king Henry the seuenth for the Commonwealth by good and politike institution administration of lawes that our late sacred soueraigne Elizab. whose very name imprinteth a reuerend remembrance in my heart instituted many diuine laws by which the miraculous peace of this Cōmon-wealth vnder the mercifull prouidence of God was amplified conserued eternised And here may not I with modestie passe or post ouer his Maiesties royall prudence knowledge and high paines in compiling and publishing the lawes of Stotland imprinted in one volume not doubting but that God of his great and inestimable loue to this nation vnder his blessed scepter also shall so worke by iustice in his princely spirit that this realme may becomein shorttime of a garden wherein his highnesse found some weeds a diuine paradise of most ciuill humanitie This hath bene the great care which did formerly with such vehement force worke in the brains hearts of al prudent kings emperours to make their people blessed this which amongst many more excellent vertues and honors attributed and ascribed formerly to Augustus Caesar made him so great and eternall in the golden memorials of time so that for the correction and promulgation of lawes in his owne name and for his sumptuous and many buildings it was truely and triumphantly spoken of himselfe Vrbem latericiam reperi relinquo marmoream These were the bulwarkes which protected the peace and honour of his Empire and those by which the superabounding tranquilitie of this Nation hath beene so long cherished and conserued It was recorded in the Romane Annals and memorials as a notable happines in Antoninus Pius that through his iustice prudence and fortitude there arose not any warres amongst the Romanes for 23. yeeres together which happeneth generally by the due distribution and execution of iustice and equitie What then may be said in our Chronicles of that our late gracious and auspicious planet of Christendome Queene Elizabeth whose beams yet after the dissolution of her mortalitie so diuinely shine amongst vs in those Lawes established and taught vnto vs whilst she raigned ouer vs who sauing some fewe moneths doubled those yeeres of happinesse vpon her people in admirable honor peace and plentie It is sooth and well answereth to the lore of wisedome that all policies States or Common-weales are most corrupt wherein there be many lawes established forsomuch as it is presupposed that where multitudes of crimes and vices predominate of strange and diuers qualities diuers vnusuall and strange lawes are necessarily made to restraine them or if they be preordained to correct or prohibit vices which are not yet may happen then it is as dangerous in regard of that expressed in this poeticall sentence Gens humana ruit in vetitum nefas For Adams children naturally lust after the forbidden fruit Not many Bookes which confound mens memorie with heapes of words and matter but few substantiall and necessarie referring all pettie things not being nefarious to the censure of venerable magistrates which will not suffer a sparke to make a flame and not to the written Letter of Poenall Lawes considering how the meane ministers and executioners of them which search out inquire and informe of such offences doe commonly more preiudice then benefit and honestie to the Commonwealth For wee know that by Gods finger all the lawes both diuine and humane were within a paire of marble Tables comprised in a compendious Decalogue The reports and causes of our common-lawes and iudgements haue appeared in two points that the former Kings of this Realme as king Edward the third Henrie the fourth Henrie the fift Henrie the sixt Edward the fourth Richard the third Henry the seuenth with prudent inspection found that necessitie which required a luculent interpretation of the difficult points in our Common-lawes wherevpon they by the faithfull conference of foure most reuerend and learned Iudges in the Lawes following the sage example of that most wise and victorious Emperor Iustinianus before mentioned did each of them in their seuerall raignes cause the genuine and very sence
committed by great persons of note apply notable and exemplary punishments that meaner folke in beholding their executions may be discouraged from the like attempts Which rule hath beene narrowly kept by that right noble reuerende and politicke Iudge Sir Iohn Popham by whose iustice and seuere integritie thunder-blasting desperate offences many grieuous and contagious malefactors haue been oftentimes repressed If therefore a mans life insist vpon it let him not feare to giue sentence according to conscionable euidence and equitie whereas he shall finde it euident and fit that by so iudging iustice is not scandalized Moreouer it must not appeare to be done either in priuate as by corrupt bribes violently to diuert the current of iustice out of his true channel or any malice or enuie to parties which is a kinde of disease of the minde which greuously repineth at the good successe or qualities of others And many men wil sooner pardon the slaughter of their parents then the losse of their liuings vniustly Seueritie therefore in necessarie punishments addeth a maiestie to the magistrate for otherwise it happeneth oftentimes that the Prince may rebuke his foolish lentitude in such termes as were obiected by Quintus Fab. Maximus in the Romane Senate against Scipio whose souldiors through his exceeding licence and lenitie reuolted from him that he should haue corrupted the state of ciuil gouernment as Scipio did the Romane militarie discipline vpon which reprehension Scipio reformed himselfe with great reputation whereas in regard of his former mildnesse the first examples of his seueritie were not imputed to his owne nature It is not meant here by the example of Draco who did write all his lawes in blood for the Athenians to punish euery small offence with death but such as are either traiterous and sedicious paricides homicides or others of like condition according to the qualities of their offences There is a kinde of grace and and mercie declared in executing or interpreting the very Letter of the Law precisely which I referre in the religion thereof vnto the Iudges conscience as by a common and familiar example Zaluchus hauing made a Law to the Locrensians that any persons of that common-wealth if they were taken in adulterie should loose both their eyes was forced to giue sentence against his owne sonne which stood in that case appealed before him notwithstanding that earnest intercession made by the people for his pardon yet in satisfaction of the Law he caused one of his owne and another of his sonnes eyes to be done out In what ought a Iudge to declare more constant veritie then in iuridicall sentences in what more zeale then in execution of the Lawes in what place more maiestie then on the venerable throne of iustice I will confirme this with a familiar example of common record in our English Chronicles Henrie of Monm◅uth sonne to king Henrie the fourth who did afterwards succeede his father rushed vnto the Kings Bench the Lord chiefe Iustice of England sitting in iudgement vpon life and death of one of that princes seruants then in case of felonie brought vnto the bar before him and with his sword drawen made offer to rescue the prisoner without further triall the people astonished at such vnusuall behauiour were afraid The iudge himselfe or rather Gods spirit directing wisely weighing his owne condition and looking into trueth and authoritie banisheth all suddaine feare and stoutly with a reuerend maiestie rebuketh the prince in this sort Come hether furious yongman wound this old carcase with thy sword wherewith thou menacest me strike strike I say rather will I die then endure such example This place which thou doest violate is thy fathers tribunall the iudge whō thou threatnest representeth thy father the law which thou contemnest adiudgeth thee guiltie for it and without any respect that thou art sonne to the king on behalfe of thy father and being assisted and supported with the Commonweales authoritie I doe commit thee to prison At which reuerend and constant iudgement of the magistrate the prince abashed presently let fall his sword and willingly submitted himselfe to prison The king vpon this tragaecomedie reported burst with teares into these speeches happie am I in so iust sincere a iudge in so good and obedient a sonne Which gallant prince succeeding his sather in the gouernement so much esteemed of that iudge as when he departed England with his forces towards France for that conquest which he there purchased he committed the tuition and gouernement of his whole realme during that his absence to him the historie is true though common and yet not so vulgar as notable Sedition and malice being two pestilent and contagious diseases in a Commonwealth should be seuerely punished in the beginnings without remission yet with such discretion handled as it might seeme rather to proceede from a mind very loath and grieuing to punish but that constraint and the common cause enforceth it Howbeit somewhat must alwayes be done for examples sake considering the sentence Panarum fructus omnium maximus pertinet ad exemplum The most fruit and profit which issueth from punishments groweth vpon example There is great daunger in ministring a more vehement medecine then either the nature or strength of the disease or diseased doth require Applie not any corrosiues but vpon extremities and causes otherwise remedilesse He which hatcheth vengeance in his heart may not punish hastely but expect a fit occasion for his owne satisfaction which will vndoubtedly fall without any combustion note or imputation of reuenge Those iudges therefore I deeme wel worthie commendation which seldome vsing seueritie can attaine and keepe the name of terrible magistrates for by much exercise of bloodie iustice as I said before more harme then good ensueth to the prince for not onely the persons fauourers of the parties punished but the peoples hearts in generall will storme at it and admit you can remoue some of the first which stirre in it yet in a case of crueltie the peoples indignation may fitly be compared to wild-fire which being once kindled will encrease and burne more vehemently If therefore a Iudge extend seueritie let it be manifested especially when matters of blood and violation of humane charitie requireth it when violence vpon impious passion or perturbation of the minde to satisfie priuate malice is exercised vpon persons which no man being moderated by the Law of nature will commit as Cicero writeth hominem naturae obedientem homini nocere non posse That not any man which is obedient to nature will hurt another man Neither can any thing expresse the prudence of a magistrate more to life then the iust conseruation and maintenance of a mans life nothing decipher his crueltie more then slaughter and effusion of blood How odious is the very name of homicide by whose violence man which is the goodliest artifice of nature is dissolued Nothing therefore should in a ciuill societie be more seuerely sifted nothing feele
great honours and reueneues being proposed to the Proficients in those studyes did by his imperiall Edicts warranting the promulgation of that Booke cause to be generally read in all his dominions for the better establishment of his many kingdoms and people in publick weale and tranquilitie According to whose sage method and forme of Lawes being much more excellent and conspicuous then all other ciuill institution by which any principalities were euer gouerned I purpose by Gods assistance to inuest this Counsell not maiestically roabed in scarlet and purpure according to the reuerence and dignitie thereof yet in the verie best which my slender faculties can afford hauing neuer attained any fruitfull substance out of that paradise of diuine and humane knowledge equally combined by the perfection and fulnesse of Gods grace First therefore iustice being as Cicero calleth her Omnium virtutum domina Regina The Lady and Queene of all othervertues By the imperiall institutions is thus defined Perpetua constans voluntas suum cuique tribuens A perpetuall and assured will to giue euery man his due And deriued as I suppose from Ius which is right tanquam Ius stans immobile veliuris statio As a sure immoueable or implanted right being the same in effect with the definition of iustice Iuris prudentia which I call the knowledge how to discerne of any cause aright Est diuinarum humanarumque rerum notitia iusti atque iniusti scientia A notice of diuine and humane affaires a science which maketh a true difference betweene right and wrong Comprehending Sapience which by Philosophers is defined to bee the science of diuine and humane matters and therefore Iudges and Interpreters of the Lawes were antiently called Prudentes and Sages Hence proceedeth it that Ius by the difference that I can make in our vulgar is termed euery thing that is thought and done aright For according to Master Bodine it differeth a lege Quoniam sine iâ—…spect at ad id quod aquum bonum est lex autem ad imperantis maiestatem pertinet Because it without motion or coaction is wholy imployed in righteousnes and goodnesse whereas Lawes haue reference to the Magistrates maiestie The substance of iustice is compounded as it were of three principall elements of the minde of honestie which is a plaine and cleanly perfection of the minde constantly conuersing in iust dealing and decencie of Innocencie which comprehendeth our pietie towards God and our zealous obedience vnto the lawes of his holy Scriptures with the perfect duties true charitie which euery well-affected person exhibiteth towards all sorts of people in their degrees and of Equitie which in my iudgement is as it were a perfect Law truely written in our heartes with the penne of godly reason Or as it is otherwise defined Equitas virtus est qua quis recté legem in multis instantijs deficientem corrigit moderatur Equitie is avertue by which the law failing or wanting in many principall vehement and vrgent points is corrected and moderated This is the same lawe which ruleth in his Maiesties Courtes of Chauncerie where the bitter censure and rugged Letter of the Statute is qualefied mitigated or rectified by the mercifull interpretation or discretion of the Iudge or Chancellor being Legis Custos quem penes est â—…am cancellatio quà m interpretatio modificatio sententiâ—…m velrerum in legibus aquâ—… magis acerbarum The Treasurer of the Lawes in whose power it resteth to cancell interpret or qualifie sentences and causes somewhat sharply censured by the strict Letter of the Lawes And this doubtlesly seemeth to be that diuine and superexcellent grace which giueth glorie with vigor to iustice or rather as I may fitly call it Equitas est quasi cor Iusticiâ—… Equitie is as the heart of iustice The first of these concerneth our owne persons in particular the second belongeth our neighbours in speciall and the third respecteth all degrees of people in generall Ius which I call right being a percept or prescript of the King tending vnto the weale of his subiects committed to promulgation and administration and formed according to precise reason and vpright conscience is two fold being either publicke as appertaining the whole Commonwealth state or priuate concerning euery peculiar person in Commoditie Priuate right is either that which is by nature Qualege omnes vbique terra rum principes obligati sunt By which Law all princes whatsoeuer vpon earth stand bound obliged being common to all creatures liuing From whence the coniunction of male and female wedlocke procreation and education of children proceed as I touched in oeconomie before Or that which is nationall and generally belongeth all people for in such case vpon constraint nations made lawes wherevpon warres captiuities and slaueries ensued repugnant vnto the right of nature which hath made all persons free From which nationall right all contracts and bargaines comerce or entercourse of Marchants from one place to another location or the letting of any chattels goods or commodities for hier conduction or the vndertaking of any worke for wages people in association or societie Emption as when men receiue any thing of others for a price agreed vpon betwixt them that deliuer and those that receiue selling borrowing and lending with such like haue issued Ciuill right is that by which euery Commonwealth is gouerned Euen as those ancient laws which King Pharamonde and Gombaldus king of Burgundie made which were said to be the ciuill Lawes of France One of them being that kinde of masculine law which they terme Salique first written in the Germanetongue and instituted Anno Christi 422. So called of the people of Salij dwelling in Franconia neere the riuer Rhyne to which lists at that time the borders of the French Empire stretched And the other called Gombet comprehending diuers necessarie statutes peculiar to that nation Semblably these our Parliamentall Lawes in England which we call the Statute Lawes as of the Commonwealth from whence the modification gouernment of the peoples natures and of the Commonwealth proceedeth is the same in and to all effects and purposes with that which is called the Ciuill law respecting this Realme and Commonwealth generally And such were the lawes of Solon and Draco vnto which the people of Athens that had during the Greeke monarchie been a free State and royall Commonwealth were subiected in particular For as these our Statute Lawes of England are only made established by the popular consent and vnanimitie wherevpon they take title of commonwealthes Laws so were the ciuill Laws of all free Cities deuised and established for the generall behoofe of those peculiar States by consent of all the free Citizens and therevpon called ciuill Lawes For being by the generall Suffragation and consent of the people put in force and established they must needfully Legem pati quam tulerant Vndergoe their owne Lawes So that
by specious enucleation of all intricate or equiuocall points and cases to be cl◅red explained to the end that all other Iudges or Iustices which exceeded in administration of them might at the first sight with commendable perspicuitie deliuer the faithfull substance of all as occasion was offered for the peoples good hauing digested them into nine Volumes of the Lawes wherin the whole essence of all by those reuerend Law-fathers was most methodically couched For as the difference of all creatures by nature proceedeth from vnitie resembling many flowers sprouting from one roote euen so doe sundrie needfull and most beneuolent Lawes receiue life and nature from the precious wisedom of God the blessed and all-healing fountaine of whose knowledge he with ineffable grace and diuine beneficence openeth to them all that are studious of righteousnesse and in tender loue with respect vnto man being the choise operation of his handes doth retaine him by the due feare and loue of iustice and saluation in eternall tranquilitie The generall benefit calmely and plentifully redounding from those Bookes iudgements reports and Law-cases by the enucleation of those learned law-men as is before expressed includeth the second point Forsomuch as concerneth humane Lawes which are ordained by nature and published by the prince which by them gouerneth the Common-wealth to relieue and rectifie the same they must be iust and possible needfull and profitable plaine prescribed not to priuate but to publike vse and benefit consenting with time and place according to the nature and custome of the Countrey which should be moderated by them such as are our statute-lawes of England Vpon these thus ordained and prouided against faultes a knowledge shewing the difference of crimes and vices dependeth As whether the nature of thē consist in impietie by violation of the first table of Gods lawes through foolish prophanation or derrogation of or from his omnipotent power and maiestie or if it be flagitious and repugnant to the second importing impietie towards parents and magistrates the defamation or contumelies of neighbours the concupiscence and losse of liuelihoods and liues wherevpon parricides and horrible slaughters are bred Towards which legall office or ministerie three speciall things generally would be required in a Iudge the first of which is in his head to retaine a firme and venerable grauitie confirmed in his countenance with some serious kinde of awfull maiestie through his continuall meditation vpon the iust iudgements of God with the charge vpon him imposed which by the diuine gift of heauenly iustice must be fostered in his heart that all proceedings drawne from thence may be seasoned with the grauitie of his cogitations which in excellent discretion will point out to him the time person and place when to whom and where hee should shew iustice naked or inuested with mercie So that by the iustice of of his heart which ministreth wisedome and grauitie to his head and by the seuere and precise prudence of his head which inblazoned in a stedfast countenance a stout maiestie withall and by the comely grace of his countenance which admirably shadoweth all in a decent austeritie there may be due reuerence and feare drawne to the person of a Iudge on euery side about him infusing horror to the malicious and wicked with loue and reuerence to good and iust persons hauing his tong so sanctified and seared with zealous praier and with a liuely cole taken from the blessed Altar by the sacred Cherubine that it may become th' oracle of Gods iustice and the iust herauld of a sincere heart For if grauitie should not appeare in all his iudgements then shall he be suspected of a partiall foolish lentitude which opinion when it is once vulgarly conceiued will preiudice him either in his reputation or in administration of the Lawes This reputation or authoritie likewise is by the first three properties delineated to life the restraint whereof will disaduantage him in his honour which by such demeanor will be blemished with some misprizion or suspect of corruption There is likewise in euery wise Iudge expedient a mature experience in sutes and variances by defect whereof his ignorance deepely woundeth or rather maimeth him Lastly the mindes constancie corroborateth him in the perfection of all declaring that in the whole course of all his iudgements iustice alone without priuate affection preuaileth Neither is it meete but most vnfit that any man should sit on throne of iudgement or giue sentence when his owne cause is heard or discussed least affection vsurpe vpon and defile the tongue of magistracie least the reuerend custome of iudgement be violated least that maiestie whereof I spoke which is meete for the sage tribunall and court of equitie be diminished least a mischieuous example corrupting the people be drawne on with it and finally least a contempt of the Lawes and equitie do succced it Now somewhat concerning that abilitie which strengthneth Iudges and iuridicall magistrates in the administration of publike causes It is therefore principally to be considered that they which sit vpon this honourable throne of iudgement and take place to giue place vnto the due distribution of right and are firmely planted for the sure supplantation of those contageous vices which being but a little licenced would disperse and spread through all parts of the Common-weales most beautifull bodie defiling it with a foule and virulent leprosie stand deeply bound in a double recognisance of soule and bodie to be studious and industrious in the science and iudiciall practise of that wholesome physicke which must be frequently ministred to the diseased members of that State In which their iudgements being credited may be by the Prince allowed and iustified also for if they doe not yeeld euen law and execution of right to all subiects rich and poore without hauing regard to any person and without letting to doe right for any letters or commandement which may come to them from the prince or king or from any other by any other cause then are they by our Lawes thus censured worthily Their bodies lands and goods to rest at the kings pleasure who shall otherwise giue iudgement or sentence of and against them The King himself also which is head and iudge of the Lawes sheweth great goodnesse equitie through the world in shewing his royall assent and contentment that these iudges substituted vnder him shall giue sentence according to the Cannon and true meaning of iustice euen against himselfe directly if he through negligence be driuen vniustly to maintaine any sute with a priuate person which will not beare euen in the ballance of equitie in which that kingly sentence is verified that therein differt a rege Tyrannus for nothing more then this doth to life expresse a true kings glorie The kings of our nation to confirme this perfect honor of a iust prince in one act of Parliament ordained in the second yeere of king Edward the third are limited That although they commaund by their great