the Law yet no where in it I think once naming our most reverend Judge Litleton He cals the Laws in just and the Lawyers or interpreters of them ignorant speaking of those of the time of William the 1. upon a supposition that the most of the Lawes were Normanne He and his book are said to be of great account by Dr. Cowel in as much esteem with the students of the Common law as Justinians Justitutes are with the Civilians saies the famous Clarencieux The Lord Coke sayes This is as absolute a booke and as free from errour as ever was writ of humane learning y Pres upon Littlet r. 2.67 r. 10. Epist according to the Judgement of a Court before Litletons word wil passe every where ipse dixit carries things as Master Fulbec Litleton is not the name of a Lawyer but of the Law it selfe more then can be said of any Civilian one or other Dr. Cowel blames his Civilians much that shey were not onely guests and strangers but infants in their own Commonwealth that the most know as little of our Law as the common people and I cannot imagine how by a sight of Litleton Hotoman should know much it is not unreasonable notwithstanding all his learning to suppose with Littleton alone he did not understand Litsleton it would be taken as justly it might either for foolishnesse or malice indeed the greatest possible for the highest impudence if any man so much a stranger to the terms and Language at the first sight meerly by guesse should as slightly condemne the Pandects full of contradictions and needing exposition and amendment as is before shewn out of the Civilians themselves whereas Littleton is as fundamentall as any Law can be and every sentence of his is a principle Nor can any man but wonder at the expression of malice and study to calumniate the book through by which we may see how it is understood being onely a bare collection of special cases under their titles or heads authentick and binding because it is made and composed partly of the customes of the ages before partly of the judgements of Courts and of the Statute lawes without any controversie with any man without any reflexion upon any other law upon any mans person or works saving that once he saies he had heard say There was one Judge Richel who setled an estate intaile with perpetuall remainders with that clause of perpetuities since used but against law that upon alienation of the eldest sonne c. his estate should cease c. meerly ayming at the publike good which makes me thinke here must either be a great mistake in the sense or of the book it selfe Litleton then was not Litleton now The uneven ruggednesse of the French wil not suffer any man to be eloquent Laws as Cicero ought to be be deare unto us and to be prised not for the words but for the publike profit and the wisdome of the Lawgiver Yet is not the stile of Litleton rude but plain as the best French then was plain enough neither neat nor quick as will appeare by the Lord of Argentons stile noted before who lived in our Judges age and writ then most befitting a Judge and the gravity of the subject To the absurdity of the writing part of the invective charged in the slander which is true as is shewn from testimonies of the side of the old glosses I wil reply but this it should have shewn how and where otherwise this is a generall charge which has nothing in it but the malignancy of an enemy from whose rash and unjust censure the happy memory of our Judge may justly appeale to those who know him It is a childish impotency of the mind out of vainglory to calumniate illustrious personages farre enough either from honesty or discretion The haughtinesse of Pompey to raigne alone is with the most nor is it fair to bequarrel and hate all other Nations because they drink not the Loire or Rosne or submit not to I know not what universality as if Alexanders world were returned again not to be ruled but by one Sun What concludes here and makes up the aggravation is extended farther by others and made a cavil it is no more against the Laws That our Laws want method Method never yet so much as a pretence to abolish laws How easily the Pandects may be matched for method I shall demonstrate by the order of the Common law of England After the Curiate laws of Romulus those of Numa concerning Religion the laws of the other Kings all taken into the books of Papyrius and therefore called the Civil Papyrian Laws the twelve Tables followed then the Flavian Helian and Hortensian the Honorary Law of the Praetor the lawes of the people called Plebiscita the decrees of the Senate called Senatusconsulta the law of the Magistrates and customes the laws of the Princes frō the law Royall the opinions of innumerable Lawyers many of which are recited by the second Law of the original of the Law their volumes were huge saies the Emperour z Proaem Instit 5. There were as the glosse three hundred thousand Verses Laws or answers two thousand books and many other Laws so confused so infinitely extended they were not to be shut up in the capaciousnesse of humane nature Out of all these were the Pandects composed and digested which are wel digested but as is said the Code and the Authenticks are not How much more easily might the Common law be ranged into an exact method may quickly be found not being composed of any such bulk not drawn out of any thousands of such answers and books inclosed in a dozen or two of small volumes exceeded in the quantity by the present Imperial lawes hundreds of times over the foundations of it as of all just and civil Lawes are the lawes of God of nature and reason and of Nations as Dr. Cowel Our Statutes and Customes are derived as all just laws else and consentaneous to reason from the Law of nature and of Nations a Inst jur Angl. 25. And again The lawes of England as others over the Christian world are far enough off from the civil Imperial law yet are they tempered seasoned with the equity of it b Praef. ad Inst In his Epistle dedicatory before the Institutions They are not far enough off * v. Chap. 2.50 here as very probably some of these Imperial lawes might come from Rome to the Saxons with their Religion There he speaks thus After I bad spent some yeeres in the comparison of these lawes viz. the Common and Imperial laws I found the same foundations in them both the same definitions and divisions of things rules plainly consentaneous neer the same constitutiom the difference onely being in the Ideome and method Our Common law is nothing but a mixture of the Roman and Feudal laws and in his Epistle to the Reader before his Interpreter he sayes He has in
intent to hurt the adversary they see not before how great it is and however are too weak of themselves were the right of their side and most plain to manage it to the best advantage It may seem strange too why the ordinary course of our Circuits should not now be sufficient why we should need quicker returns of this sun of Justice unlesse we think our selves the worst of all men and our age the most corrupt every day falling further from the piety of our forefathers and more prone to oppresse and devoure one another were there a recession from the known Law after a few of the first judgements not to go on far it may be feared there would be no small discord and contrarieties in the determinations where the Courts should be so numerous not derived from one fountaine nor judging by one rule that would be Law and right in one County which would be wrong in another and which is the greatest curse in the Law that which should be most certain would be without any certainty at all To proceed instead of Conservators of the peace at the common Law now antiquated there are Justices of peace of larger power then the Irenarchae of old appointed to take care not so much of the publique discipline and correction of manners as for the peace and security of the highwaies m Cod. Thead in rub de Irenarch l. 1. Their name shews why they were instituted They are in their sessions quarterly to heare and determine all Felonies breaches of the peace contempts and trespasses They are to suppresse riots and tumults to restore possessions forceably taken away to examine felons apprehended and brought before them To provide according to the Statutes for impotent people and maimed souldiers to punish rogues beggers forestallers and ingrossers c. to commit or bind over offenders to the Sessions or Gaole to take recognizances for the peace c. such a form saies the Lord Coke of subordinate government for tranquillity and quiet c. as no part of the Christian world hath the like if the same be duly executed n 4 Inst 170. suites There are other Coures for administration of justice of narrower jurisdiction and confined in smaller limits of some of which I have spoken before yet able to put an end so small differences and ordinary trespasses not to be prevented sometimes amongst neighbours if men would be so contented Who commonly themselves make the Courts below thin and are the causes of the troubles they seem to detest let the quarrel be as trivial as is imaginable for an Asses shadow yet as in some Countries the custome is to threaten they wil have a London proces for him the poorest clownes wil trudge to London on foot from the farthest parts of the North or West more miserably then Carriers horses and undoe themselves which is no hard matter with one journey rather then not discharge their full spight who if they return not back as merrily as they set out they may thank themselves But because delay is charged up on the Courts not onely as an heynous crime but such as must by all means be born with them inseparably inherent to them something I wil speak of that I wil make it evident that delay is more odious to the Law then to those who complaine of it and that it bred from nothing else but the corruption without We finde in the Saxon lawes not onely one which fines the Shieriffe for doubtlesse of him is the word gtrtfan there meant o V. Ll. edu sen c. 5.11 who sentences not according to right after the testimony of witnesses p ibid. Ll. c 5. but also another commanding the Shieriffe to keep his Court to have his Assembly which now we call the County Court as the words and institution of King Edward the elder every moneth And that every man may have justice and every plea an end at the day when it comes whoso omitteth this still as the Law he shall make amends c. q ibid. c. 11 like that of the twelve Tables SOL OCCASVS SVPREMA TEMPESTAS ESTO We need not wonder that suits could be so prepared or rather that so little could be in them that they could be dispatched in a day if the plainnesse of the age before noted be considered when the folcland the possession of the rural man passed without writing and the bocland not to be aliened if there were such a condition in the writing r Ll. Aelfr c. 37. in a few words No man might change any thing but in the presence of the gtrtfan or Baily or of the Masse Prieâ—t or of the Hordre or of the Lord or the soile c Å¿ Ll. Aethelst c. 10. and no man might buy beyond twenty pence but within a Town before the Portgreve other tenth man or with the Shieriffes witnesse in the Folcmote t ibid. c. 12 To look downward Magna Charta has it We sell no man nor deny or delay no man justice and right u c. 29. It is a maxime in Law Lex semper dilationes exhorret The Law alwaies as Markam eschewes delaies w 22 H 6.40 a.v. w. 1. c. 40 44 45. w. 2. c. 25. sta Glou. c. 2. The Barons of the Exchequer are commanded to doe right to all men without delaie x 20 E. 3. c. 2.28 E. 1. c. 10. they are sworn to it y 4 Jnst 109. The common Law requires often that full and speedy justice according to the words of those wâ—its be done to the parties z Na. Br. 23.182 4 Just 67. all writs of Praecipe quod reddat are That justly and without delay he render c. all Judiciall Writs are without delay c. When any Court makes delayes and will not give judgement the Writ de procedendo ad judicium lies The words of which are Because the rendring of judgement of the plea which is before you c. hath taken long delayes c. We command you that you proceed to give judgement thereupon with that speed which is according to Law and Custome When execution is denyed the Writ of execution of judgement lyes by which the Justices are commanded to canse execution to be done without delay of the judgement lately given a Na. Br. 20. v. 2. Jâ—s 270 271. There was a Court raised by Statute for redresse of delayes in the great Courts where yet the delaies are not imputed to any foul play of the Ministers of justice The words are Because diverse mischiefes have happened of that that c. the judgements have been delayed sometimes by difficulty sometimes by diverse opinion of the Judges and sometimes for some other cause it is assented c. a Prelate two Earles and two Barons henceforth at every Parliament shall be chosen which shall have Commission and power of the King to beare c. the complaints of those that will complain to
6. And again there in the Chapter of the Maletot u c. 7. The ill Toll or Charge of 40 s. upon every sack of Wool is taken away where are these words We have granted for us and our Heirs not to take c. without common consent and good will By the Statute called de Tallagio non concedendo No Tollage nor aid was to be set or levied but by common consent w 34 E. 1. All new Offices with new Fees are within this Statute x 2 Inst 533. No man is to be charged by any benevolence which is condemned by a Statute as against the Law y 1 R. 3.2 He who judges things impartially must confesse the English ever to have been the most happy and most free of all people while they enjoyed the benefit of these lawes and are likely yet to continue â—s happy under them for the time to come But as some there are as is noted who will allow no authority but their own not reason it selfe nothing without themselves so some there may be rather for a Sect then the truth more willingly following a great name then reason chusing number rather then weight and worth carryed away with authority as they call it such as will yeeld to nothing else If any such there be I will please them they shall have authority with truth weight and worth together Not that I bring in other vouchers as if I refused those or thought them not sufficient who as have shown before are the true and undoubted Judges of the lawes In the Councel at Oxford of the English and Danes held in the sixt yeere of King Cnut The English and Danes are said to agree about keeping the Laws of King Edward the first Wherefore they were commanded by King Cnut to be translated into the Latine Tongue and for the equity of them those are the words to be kept as wel in Denmark as in England z Mat. West flor Hist l. 1. 311. Wigorn. 311. Although it is said the English laws * Gloss ver Lex Dan. were silent spake not in the times of the Danes which might generally be true yet in the reigne of of this King it was otherwise as appeares by his excellent lawes of Winchester full of piety and justice a Concil saex 569. These were the famous lawes observed by King Edw. the Confessour after many of the laws of K. Aetheldred many of those of the renowned Councel of Aeaham under the same Aetheldred are amongst them In the Epistle of King Cnut writ to the English when he was coming from Rome He saies He bad vowed to govern the Realms subject to him justly and piously and judgement in all things to observe At his returne saies Malmesbury he was as good as his word For all the Laws by the ancient Kings and especially by his ancestour Aetheldred given under penalties be commanded to be observed for ever which now men swear to keep under the name of King Edward not that he ordained them but because he observed them b Malmâ—b de Gest Reg. l 2. c. 11. p. 75. How much the ancient Englishman loved and prised the Common lawes is evident by what has been before said concerning the Magna Charta and the setling them And it is more evident by the odiousnesse which subversion and the subverters of the Lawes have lain under in all ages There is a Writ in the Register as before to take the impugners of the Lawes and bring them to Newgate c Regist 64. In the complaint of the Bishops of Henry the thirds reigne against the strangers Poictouins his favourites are these words As also because the Law of the land sworn and confirmed and by excommunication strengthned this was the Magna Chaeta together with justice they confound and pervert d Ma. Pa. 396. The Earle Marshall Richard complaines of these Poictouins to this King as men who impooy themselves to the oppression of the Lawes and liberties e ibid. 384. Stephane of Segrave the chiefe Justice is charged in another place with corrupting the laws and introducing new ones f ibid. 392. The same King is told by those Bishops That if the subjects bad been governed according to justice and right judgement of the land c. those troubles had not hapned The Statute banishing the Spencers the father and son has this Article To the destruction of the great men and of the people they put out the good and fit ministers and placed others in their room false and wicked men of their Covin who would not suffer right or law to be had and They made such men Justices who were not at all conversant in the law of the land to hear and determine things Empsons indictment runs Nor having God before his eyes c. falfely deceitfully and treasonously the Law of England subverting g 4 Just 199. The Articles against Cardinal Wolsey before mentioned begin Hath by divers and sundry waies and fashions committed high and notable and grievous offences misusing altering and subverting the order of the lawes His articles are there by the introduction said to be but a few in comparison of all his enormities excesses and transgressions against the Laws These Articles were subscribed by the Dukes of Norfolk and Suffolk the Marquesses of Dorset and Exceter the Earls of Oxford Northumberland Shrewsbury the Lords Fitzwalter Rochford Darcy Mounjoye and Sandys c. all which as those others taking subversion to be so heinous an offence must needs be imagined to esteem the Lawes highly Lewis of France invited hither by the Barons in King John his time in the entrance to his new principality is made to sweare to restore to every of them the good Lawes h Ma. Pa. 282. As others to maintain ad keep the institutions of the Countrey Those who desired a stranger for their master would not be governed by new and strange laws amongst the covenants of marriage betwixt Queen Mary of England and Philip the second of Spain there is one to this effect That he the King Philip should make no invasion of State against the laws and customes of the Realm neither violate the Priviledges thereto belonging i Hollinsh p. 1118. And amongst those covenants of marriage treated betwixt Elizabeth of most happy memory and Francis Hercules of Valois Duke of Anjou the same care and warinesse is had one of the conditons is That the Duke shall change nothing in the laws but shall conserve all the customes of England k Comd. Eliz. 338. The Lord Treasurer Burleigh the Earles of Lincoln Sussex Bedford and Leicester Sir Christopher Hatton and Sir Francis Walsingham were delegates for the Queen men too wise to tie themselves and others to preserve those things which are neither worth a care nor being The Statute 28 of Edw. the 3 l An. Dom. 1363. speaks thus The good ancient Laws customes and Franchises of the said Realm The
second of Richard the second m 2 R. 2. c. 1 Wills that the great Charter and the good laws of the land be firmly holden The 3d. That the good laws and customes c. be bolden n 3 R. 2. c. 1 v. 5 R. 2. c. 1 7 R. 2. c. 2. 9 R. 2. c. 1. The 4. of Hen. the 7. And over that his Highnesse shall not let c. but that he shall see his laws to have plain and true execution and his subjects to live in surety of their lands bodies and goods according to his said laws c. o 4 H. 7.12 c. 9. The 32. of King Hen. the 8. saies The King calling to mind c. that there is nothing within this Realm that conserveth loving subjects in more quietness rest peace and concord then the due just ministration of his laws c. The first Parliament of King James has The fundamentall and ancient lawes which this King as there is said expressed many waies how far he was from altering or innovating whereby c The peoples security of lands livings and priviledges both in generall and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present confusion wil fall upon the whole State c. p 1 Jac. reg c. 2. Twice in Petition of Right is this expression and other the good Laws and Statutes once the laws custows once franchise of the land The conclusion is all which they humbly pray as their rights liberties according to the laws Statutes q 3 Car. Reg. If publike authority authority of Parliaments authority of the English Nation in all ages can make an authentike and valid testimony by that authority we see our Lawes are facred pious good mercifull and just their ends aym meerly at the peace and happinesse of the Nation the only ends which Lawes should aym at and these being had he must forfeit the Noble reason of man who desires a change which whensoever it shall happen by the judgement of a Parliament like the change of death must be fatal to the State Though here is already the weight I promised and such as all English men should allow I wil adde a testimony or two more of private men not of the profession yet no strangers in the Law as the most knowing Sir Henry Spelman Of all municipal lawes our law plain and without dresse as she is is the most noble Lady replete with all justice moderation and prudence c. As Sir Thomas Smith the people here are accustomed to live in such sort that the rich have no more advantage then the poor Dr. Cowel a most knowing Civilian very judicious in our laws sayes of the two Benches They decide all causes religiously according to the rescript of the Common law r Justit Angt. 24. sect 2. a most learned Knight of our age praises highly our forefathers for their vertue abroad and their exquisitenesse of counsel and judgement at home amongst whom as he in Livies expression The commands of the laws were ever more powerful then those of men and Iustice was administred with that sineerenesse and judgement you would believe it to have proceeded from Papinian himselfe of all men who are shall be or have been the most skilled in the laws Å¿ D. Rog. Twisden praefat ad Ll. Guil. 1. Hen. 1. Our laws are not written in any general tongue and so cannot easily be known by forreigners but by the effects long continuance here or acquaintance and seldome so strangers every where for the most part desiring to take notice of every thing else rather then of laws The French man who wrote the estates of the world discoursing of the charges practised in other provinces in his time sayes But the liberty of England is marveilous in this regard no Country any where being lesse charged t Les Esta c. p. sciâ—ur D. T. V. Y. v. Sir Rob. D alingt survâ—y of Tuscany The Lord of Argenton as much experienced as any man in his age or perhaps since who had seen Venice and the order of things there and praises it sufficiently yet speaks in his plain manner of England Now according to my judgement amongst all the Seigneuries of the world which I have had any knowledge of where the Commonwealth is best managed and where there is lesse violence used upon the people it is England u Liure 5. It was otherwise of France in the days of his Master Lewis the 11. In many places so grievous were the Taxes men women and children were forced to draw the plough by their necks and that by night for fear of the Collectors w P. Mat. Lon. 11. If we look upon the Peasants of France flead alive the Villano or Contadino of Italy either under the Spaniard or Venetian Where Fruit and Salades * Sir Rob. Dalingtons Survey of Tuscany nay and Asses dung all things whatsoever pay Tribute but mens sighs where one word gabelle is of the largest extent and more used then all the other in the Languages leave out the chains of the Turkish Gallies and the most sad thraldom of those Natives of America under the Spanish Conversion of the newest Fashion Baptized but as Bede says of the Protomartyr Albane in their own blood we shall finde nothing so miserable so unhappy in Nature Our Yeoman as Sir Tho Smith is a free Englishman a man well at ease and having honestly to live He savours says a Reverend Church man of our Nation of civility and good manners living in far greater reputation then the Yeoman in Italy France Spain Dr. Heyl. Geegr or Germany I may say for some of them more freely more plentifully then the Gentry of either Spain or Italy being able to entertain a stranger honestly dyet him plentifully and lodge him neatly We may read the words of a Parliament to this purpose after the discovery of the Powder-plot No Nation of the earth hath been blessed with greater benefits then this now enjoyeth x 3. Jac. and whatsoever benefits we have received we owe them all to the Laws they are derived to us thence we can attribute them to nothing else Honour given to the Professors of the Laws As Justice is the most excellent of all vertues seated in the Will as more sedate and nearer to the reason its object being the profit of others So it is with good cause preferred before Fortitude as Peace before War which ought to be ruled by a certain Justice and if all men were just there would be no need of Fortitude The ancient Chief Justice whatsoever may be talked of the Constable or others was the Great Officer of State and as he had more power so had he the precedency of all men else Odo Earl of Kent Chief Justice in the time of William the 1. is called Prince of the Palace by Ingulphus y
administrationis necessitatum publicarum tanto plus sibi arrogat in legibus interpretandis we may say abolendis The more unskilfull any man is of government and the publicke affairs the more will he arrogate to himselfe in interpreting or abolishing lawes The pride and selfe conceitednesse of an ignorant as it is commonly the greatest pride so it is the most dangerous whose suppositions at the most are the great arguments and whose imagination not demonstration if it must prevaile no foundation can be so fast but it must be shaken a weather beaten ship in a winter sea may be our emblem every day tossed and bruised betwixt shelfes and rocks without an anchor and where never any unhappy lost men could find a haven For the sacred Laws of the Land CHAP. I. Of Law what it is It 's Antiquity and necessity of Liberty LAw is defined by our Authors and others to be that which commands those things which are to be done Grot. de jubel Sir Hen. Finch 1. and forbids their contraries To be the rule of moral acts obliging to what is right An art of well ordering a civil society It is the conservation of justice which is A constant and perpetual will to give every man his own Bract. l. 1. c. 4. Just instit Therefore Cotta well denies Justice to be there where there is no right The precepts of Law are as Bracton to live honestly wrong no man De nat Deo 1. give every man his own These were the words of Justinian a Instit l 1. tit 1. long before The Law saies the Glosse intends onely this That humane society and that conjuncton without which men cannot live together may most commodiously be conserved This is its end These precepts or Laws commanding our Saviour comprehends in one rule Do as you would be done to Jus is à Jovis nomine Presidents have onely so much of Law as they have of Justice b Ch. Just Hub. 270. Those and Laws are built upon reason and Justice Law and Justice are insepable Force then which is said to be when any thing is done injustly with no right against the free will of another When a man requires his own prosecutes his right but not before the Judge is not Law c Bract. l. 4. c. 4. Force and Law are opposites d In Orot pro P. Sextio Horace notes the fiercenesse of Aebilles thus * See chap 2.137 here Iura negat sibi nata nihil non arrogat armis By these two contraries it is said is humane life a great way distinguished from the life of beasis e Cicero ubi supra l. 4. Arrians speaking of the Macedon kings say non vi sed lege regnum tenuerant The illustrious Viscount S. Albaâ— meant as much in his first Aphorism where he sayes in civil society either Law or force prevailes In his judgement meer force those are his words is the fountain of in justice f Augmtnt scient 690. This of the Barbarian That is most just in prosperous fortune which is most forcible is not so barbarous and abominable as another of a Pope g Bulla Clement 13. sentencing the Templars thus Although of right and Law we cannot yet according to the fulnesse of our power we condemn the said Order As one although you may with force rule your country and parents and reform things amisse yet is it unseasonable especially when all changes portend slaughter flight and what else is histile h Salust 48 In our Law Force is said to be as before when one demandeth that which he thinketh due to him not by a Judge sometimes armed sometimes not i Bract. l. 4. c. 4. We may read in our old Lawes In the times of the Danish kings right was buried in the realm such are the words the Lawes and customes slept together in their time wicked will force and violence rather reigned then judgement in the Land k Ll. Edv. conâ—â—ss c. 16 de invenriâ—â—e murdri I would not be understood to speak against publike force such as arms the lawful Magistrate to act legally in the execution of the Laws Thou shalt not kill and that other Text Whosoever shall shed the blood of man do not tye up the hand of Justice By several Statutes which it would be tedious to repeat I might shew what opinion our Lawmakers had of injust force which onely deserves the name of force The Statute forbidding Armour l. 7. E. 1. has these words and all other force against our peace Peace the contrary to force is the onely darling of the Law another Statute speaks thus No man shall come before the Iustices or other of the Kings Ministers doing their Office with force c. Except c. and upon a cry made for arms to keep the peace m 2 E. 3. Power ought to follow the Law not to go before it n 3 Inst 160. As Britton We will that all men rather use judgement then force o Britt 116 judgement and Peace go together Fleta upon that command of the Statute Westm the 1. That the peace of holy Church and of the Land be well kept goes on in the words of the Statute and it is a good consequence That so common justice or right may be done to every man p Fleta l. 1. c. 29. Britton unites Peace and Law in another place as fully Peace says be cannot well be without Law q fol. 1. And indeed where force gets the authority and reputation of a Law it is like the unnatural blaze of comets whatsoever the height be the effects are commonly fatal more feare then love is given it And as force cannot as little can the Arbitrary will of man be Law Laws cannot be just unlesse they be certain It is the best Law says the illustrious Viscount which leaves least to the arbitrarinesse of the Judge r Aphorism 8. We are Judges our selves of our own inconstancy how often we disagree with our selves what repugnancies there are daily within us how we are carryed away after any thing that is new and which we have not at all experienced not seldome without repentance enough commonly our wits being but afterwits every man is his own Phaeton his passions and affections never so disorderly oftner command then his reason so that sometimes he is rather a Geryon or Chymaera then one man The first act of our understanding which is a pure and simple apprehension may want reason it being not yet raised and the soule as it is clogged taking the beginning of it's understanding from the senses it takes such impressions as are offered to them and is not it self rushes furiously and rashly upon things ill represented and as ill understood without any reflexion upon Reason which we call Judgement or deliberation And not seldome where the will is thus impetuous force and violence are seconds to it This made Aristotle say That those
we cannot say of servants meaning servants by the Civil Law or Law of Nations after their conversion injoyned by St. Paul strictly to obey d Ephes 6. Coloss 3. Liberi free men are called so from Liberty as servants from servitude being opposites Liberty in the proper and strict sense being spoke of the one as servitude of the other though now improperly other kinds of things may and do come under those appellations Such liberty then as may be suffered by Laws and amongst men incorporated in a government is sufficient and whosoever will be displeased at it all that can be had Living under such a law as ours shall be shown to be where mens persons are free and their estates in which they have a propriety unless in such cases whereby their publique offences that freedom according to the plain words of known Law is justly forfeited as where the Jury in attaint are sentenced to lose their Frank Law e 46. E. 3.22 or in such cases where all the parts are to contribute to the good of the whole as either to the maintenance of a warre undertaken by the publike and supreme power or to the splendour of their home peace which as it must certainly be of value out of gratitude for the benefits injoyed under it all are bound to is Liberty as the Magna Charta f c 29. No Free-man so here is this liberty shall be taken or imprisoned or disseised of his freehold liberties or free Customes nor be outlawed banished nor in any manner destroyed c. but by lawful judgement of his Peers or by Law of the Land Which is not waging of Law as a most learned Author would have it g Tit. of Honour 1. edit 344. This chapter of the Magna Charta is partly repeated in a later Statute h 25. E. 3 4 v. 5 E. 3.9 21. E. 3.3 v. Vâ—â— Abb. S. Alb. 143 and there Law of the Land is expounded Indictment Processe by Writ Original and course of the Law another Statute recites it and instead of the words Law of the Land puts in Processe of the Law as equivalent and Synonyma signifying the same thing i 37. E. 3.18 and again a Statute of that King says No man shall answer without presentment before the Justices or matter of Record or by due Processe and Writ Original according to the old Law of the Land k 42. E. 3.3 So we see the free man hemmed in with all his liberties and free customes if he abuse them if he be found guilty of a publike crime or of any injustice or wrong done to his neighbour for which according to the Law of the Land and the judgement of his Peers or equals such liberty ought no longer to be his Sanctuary then as having forfeited his birthright of the Law he becomes a servant as the Statute may be taken imprisoned disseised of his free hold or liberties Outlawd or in any wised stroyed The same Magna Charta wils l c. 14. That no Freeman be amerced for a small offence but according to the manner of that offence c. The Statute of Merton provides m c. 10. That every Free man which is legally free who oweth suit to the County Tithing Hundred or Wapentake or to the Court of his Lord c. Here is the Free man again yet indebted he oweth suit and is chargeable with those duties the Law has obliged him to Legal liberty there may be there ought to be if these pretenders ever turmoiling and troubling others more peaceable and modest then themselves could overturn and alter government as often as the unquiet Florentines did theirs could make it their perpetual motion who changed ten time in a very few yeers n Mach. Hist 57.67 69.99 90.115.166.171.237 the proscriptions and slaughter of the best Citizens and the pangs and throwes of every change considered This liberty would not be worth the blood she must swim through to her throne and perhaps then there would be little liberty for any but those who conduct her thither liberty so this Historian upon the motions of his City is oppressed by the name of liberty Salust in his description of the Aborigines gives the best character of these lawless libertines in these words They were a kind of savage wilde men without Laws without command or government free and loose Such I take ours to be and such their liberty which may and will ever be pretended but without extirpation of all Religion humanity order and civil policy can never be had And if onely Cato's wise and just or honest man be at liberty and all wicked men slaves and villains o Plut. in Catone Vtic. I believe few of this Sect let them move every stone they can are likely to be free man is a labyrinth full of windings let the outside be never so specious and taking it may be a great distance from the heart there is no safety but in distrust we should suspect every thing which our own experience hath not assured us of most of all when Lawes which are the heart and vital parts in a Government are practised upon we idlely and fondly charge destiny and the period and ruine of things upon fatal families or boundary yeers when the truest cause of the calamity is our own unworthy lightnesse The reason why the Commonwealth of Sicyon survived the policie and Estates of all Greece besides is made this in seven hundred and forty yeers they never set forth new Edicts nor went beyond any of their Laws never exceeded them all things below are in continual motion have their infancy their manhoood and old age which is change and death their rise and fall yet as regular diet and temperance preserve the weakest most declining bodies so although considering the multitude of wicked men and what may hurt without no Government in judgement can subsist at all without the peculiar never failing assistance of the divine power yet may good Laws well obeyed prop up and keep off the fate of that which else would tumble presently And all things else would be more constant if man were so CHAP. II. Of the Law of England and what it is Its Antiquity not Norman King Edward the Confessor his Lawes brought down to Magna Charta and there setled The fundamentals are Saxon-English The English-Norman Laws since because of new offences of Tenures AS wisdome goes and must go it has ever been easier to gain the reputation of wisdom then of goodnesse The good man was he who loved his Country more then himself who obeyed and reverenced the Laws for Justice sake and if possibly would not have outlived them rather just then shiftingly politick The answer to the question Who was the good man used to be Qui leges juraque servat he that kept the Laws The Ancients of the greatest experience and learning peaceably ever observed the Laws of their several Countries neither were those
The Lord Chancellours oath is thus That he shall doe right to all manner of people poore and rich according to the lawes and usages of the Realme s 10. R. 2. rot Parl. 8. The Barons of the Exchequer sweare no mans right to disturbe let or respite contrary to the lawes of the land t 4. Jnsti 109. which must be meant of the knowne and certain Law of the Land called in Magna Charta Legemterrae upon which all Commissions are grounded wherein is the clause to do what belongeth to Justice according to law and custome of England u 2. Jnsti 51. The illustrious Viscount of St Albane amongst his Aphorismes of universall Justice has this Let no Court deale in cases capitall our Lawes say Civill too but out of a knowne and certaine law God denounced death then he inflicted it nor is any mans life to be taken away who knew not first he had sinned against it w Augm. scient 402. By this Law of the Land although there is not nor cannot be any liberty which should protect the transgressors of it yet have all Offenders a legal tryall nor are possessours of the worst faith thrown out without the hand of the Law onely against those who attempt to subvert or weaken the Lawes there is a Writ to the Sheriffe in nature of a Commission to take the impugners and to bring them as the Register to the Gaole of Newgate x Regist 64 2. Justi 53. This as the Lord Cooke is lex terrae The Law of England to take a man without answer or summons in this case and the reason given is He that would subvert all Lawes deserves not the benefit of any Amongst the articles exhibited to King Henry the eight against Cardinall Wolsey he is charged with oppression in imprisoning Sir John Stanly and forcing him to release a farme taken by Covent Seale of the Abbot of Chester c. as the words by his power and might y Artic. 38. And that he threatned the Judges to make them deferre judgement z Artic. 39 that he granted many Injunctions the parties not called nor any bill put in by which diverse were cast out of their possessions of their Lands and Tenements a Artic. 21. The close was That by his cruelty iniquity and partiality he hath subverted the due course and order of the lawes His Inditement went higher and accused him That he intended the most ancient lawes of England wholly to subvert weaken and this whole Realme of England and the people of the same to the Lawes Imperiall commonly called the Civill Lawes and to their Canons for ever to subiugate c. b Mich. 21. H. 8. Coram Rege Now although the Civill Law deserves as much honour as can be given it and commands and is obeyed much abroad yet this Law of the Land held the possession here by a long unquestionable prescription and after the tryall of many ages got the affection of the people whose fathers grew up happily under it which was not easily to be removed the rather because seldome doth any Nation willingly submit to or welcome the Customes and Laws of another which they have not been acquainted with and our Judges who wil not in our Books part with one of its Maximes c 2. Jnst it 210. would not have fallen downe before the shrive of any unknown Themis and have offered up the whole tables It were no hard matter to heape up testimonies Vid chap. 3 if some would thinke it lawfull to trust men in their owne arts or professions and can it not but be more reasonable that such should be heard in the defensive then that those who professe full Hostilitie bringing with them onely mistakes of their owne prejudice should sit Judges of the tryal which is in their own cause and if thus far the reines be given to turbulent desperate spirits every thing how sacred soever may be arraigned at these tribunalls the articles of our faith will quickly totter nor will any principle be safe This discent will be fatall there being no stay in the precipice the bottome onely must receive men where he that falls is crushed to pieces what is worse those unhappy ones who follow cannot see their danger Thus we have seen what the common Law the Liberty and Franchise of the free people of England the law of the land is The law of antient time d. 27. E. 1. of old time used e 25. E. â— the old law f 42. E. 3. for ages according to the judgement of these Parliaments makes the law more venerable it is an addition of honour to it Now it followes in order to speake something of the Antiquity of this law The Antiquity of the Law But as the beginnings of things sometimes are rather guessed at then knowne it is no wonder that there should be no generall agreement here of opinions some will make the Law a Colossus of the Sun knocking the Starres with its head more ancient then the Dipthera or Evanders mother others a late small spark struck from the clashing of the Norman Swords the child rather of Bellona then Jove terrible in the Cradle the truth being mistaken by both To relye upon the authority of a Chancelour or rather chiefe Justice in the time of King Henry the sixth upon which the * r. 2. Epi. r. 6. Epist antiquity should be raised was lesse then that of Aventine who professed History where after a prodigious linke of German Kings before the Arcadian Moone he will needs bring his Dutch to the Wars of Troy which he proves out of the laws of Charles the 4. who lived lesse then two hundred yeare before Aventine and some three hundred yeares before us from which he is peremptory there must be no appeal g Boicar Hist 49. for a great Lawyer continually imployed in the publick affaires or in his study where his many volumes upon the law show the whole man might well be taken up to faile in a piece of History if he may justly be said to faile this way who onely trusted another who was carelesse It is no blemish such as can deserve the censorian rod of our Criticks besides all men love to consecrate their originalls This is allowed to antiquity saies Livie mixing things humane with divine to make the beginnings of Cities more majestick and we may say as he doth of his Rome of our Lawes if it be lawfull to canonize any to carry them up to Heaven or fetch them downe from thence that glory alone is due though it needs not to the most sacred lawes of the land Sir John Fortescue his words are to this effect That if the lawes of England had not bin most excellent the Romans who cry up their Civill Law Saxons Danes or Normans had altered them h de lg Ang l. c. 17. by which our Lawes must be Brittish at least and our
no wonder that he should carry the name I shall speak more of this in my third chapter Hence from this time are our Laws called the Common laws the same in substance with those in use since The reason why our Saxon Books are so thin and have so few lines in them may be this Our ancestors had their unwritten customes such as they brought with them out of Germany which as since lived and were preserved in the memory of the people c V. c. 1. sup Gless D. Spelm. tit Lex Lomb. as well as their laws written After all this as we finde in the lawes of William the I. there was a difference in the estimation of men offending according to the customes of Provinces d Ll. Guil. 1 s 3 4. The punishment or mulct of breach of peace was forty shillings in the Mercian law fifty in the West Saxon c. He that will looke into the Saxon lawes will finde as clearly as can be considering the distance made by so much time which is but a distance of words the fundamentall stones of the building he shall finde freedome enough and peace every where provided for in the words of those Lawes the peace of God of the Church of Religion c. Lawes concerning Tythes and Church-rights c concerning Sacriledge false Witnesse Adultery Incest Fornication marrying a woman by force Perjury Slander Usury Murder Homicide where it is Chancemedly Robbery Theft of the Fly-man or Theefe who runs for it the receiver him that is taken in the manner Hondabend and Backberend Burglary Clandestine Sales vouching to warrant what is sold false rumours counterfeiting money change of goods just weights repaire of Castles Townes Bridges High-wayes waging Law Outlawry judging according to the dom bec * Vid. Ll. Ed. sen c. 1. or Judgement book one of which as as Asserius Menevensis Bishop of Shirburne a familiar of King Aelfred that King made but it is lost concerning Appeales when Justice was denied in the Hundred or too rigorously administred trespasses wrongs battery affraies incendiaries the wife of a thief pledges of good behaviour amercement of Townes for the escape of a Murderer the injust Judge those who will not serve those who injustly trouble the Owner of Lands who has good title those who change their place of abode Merchants rescue in most offences the punishment of a Freeman was pecuniary or losse of Liberty of a Slave by whipping The reason of which M. Lambard makes because of the rarenesse of offences then See Ch. 3 fighting in the Kings Palace breaking open houses and firing robbery open theft and aebermorþ manifest killing murder the same and from whence our word murder cometh and Treason against the Lord were capitall could not be expiated with money The Jury of twelve men is denied to be more antient then the Norman Conquest by M. Daniel In Will 1. and Polydore Virgil but with a great deal of bitter vehemence by the last who sayes there is no Religion in it but in the number with as much truth as that the same King William brought in the Justices of Peace or that Wardship began with Henry the third which King Johns Charter alone confutes or that the Hotspur Lord Percy was taken alive at the battell of Shrewesbury and lost his head by the axe which are his relations That this Triall is of English Saxon discent is manifest by the Laws of King Etheldred ordained at VVanating e C. 4. which speak thus In all Hundeeds let Assemblies be and twelve Freemen of the most antient together cùm praeposito f Ll. Ed. Sen. c. 5.11 in Saxon gerefa with the Reeve of the Handred shall sweare not to condemne the innocent nor absolve the guilty g Lamb. in verbo Centur D. 5 â—el in Juraâ—a Vid. Câ—asultum de Mâ—ntic Walliae c. 3. The reason of the great silence of this in the Saxon times is because the vulgar purgations the Ordiles were every where then in use The Norman who wrote the grand Customary in the beginning of it sayes the Confessor gave Lawes to the Normans when he was amongst them and in the first Chapter de Appella he mentions the Custome of England to prove things by the credence of twelve men of the Neighbours or Visne After all the ill Customes so much decried in the Barons warres taken away and Sr. Edwards Lawes restored and confirmed in Magna Charta the inquest of twelve continued untouched and never complained of it was in use with the French in the age of Charlemaigne h D. Spelm. gless verb. in Quaest Vid. Gesta de villa novilliaco post appendic ad Fledvardum This Law of S. Edward I thinke is above all exception and full to the thing by which after a prohibition that no man buy a live beast c. without pledges and good witnesses is said and if any man buy otherwise c. after the Justice shall inquire by Lagemen legall men and by the best men of the Borough Town or Hundred c. i C. 38. This trifler Polydore reviles our inquests by twelve as devised so he to oppresse men under the show of equity and the Canonizers of Gunpowder Garnet calumniate it as upstart and unjust Of these hereafter For Polydore sayes the excellent Sir Henry Savil he was an Italian a stranger not conversant in our Commonwealth neither of much judgment nor wit k Epist ad Eliz. Reg. snatching at things and often times setting downe what is false for the true M. Selden bids all Readers in these things or such like to take heed of Polydore and his fellowes for sayes he and no man can say it better out of carelesnesse being deceived hee attributes many things to William as the Author which it is most certain we owe to the most antient times of the Saxon Empire c. l Notae in Ead. 194 Courts of Justice were erected before the Normans were heard of as the Halmot or Court Baron m Ll. Ed. c. 23 Hen. 1. c. 10 The friborge or tithing called Tenmentale in the North by the Normans Frankepledge a most excellent policy of State and one great reason why when it was practised insurrections and theft are so seldome heard of in the tything every nine men were pledges for the good bearing of the tenth If the substance thereof was performed as it ought sayes M. Lambard and as it may by Law then should the peace of the Land be better maintained then it is n Office of Constab 9. this Mr. Daniel affirmes o Hâ—st 38. By the due execution of this Law as the Lord Cook such peace was universally holden within this Realme as no injuries homicides robberies thefts riots tumults or other offences were committed so as a man with a white wand might safely have ridden before the Conquest with much money about him c. p 2 Inst 35 few Suits or causes of Suits
must needs then be The Hundred which was ten tythings a Germanie Institution q Gapit Car. Calui apud siluacum where every man was bound to attend in the North called Wapentake then the Trything Thryhing or Leet the Jurisdiction of which extended over the third part of a Province containing three or four Hundreds r Ll. Ed. c. 34. The County Court called gerefas gemot the Sheriffs gemot or Court to be held by the Institution of King Edward the elder every fourth weeke where the Sheriff was to decide civill and prediall causes and every sfraec as there plea was to have an end at the day Å¿ Ll. Ed. sen c. 11. The supreme Provinciall Court was the Sciregemot or Shire Court the same which now we call the Sheriffs turne kept twice the yeare where the Thanes or Noblesse were bound with the Freeholders to be present the Bishop was Judge for Church-matters and the Alderman of whom below for things secular here was the Assembly of all the Hundreds t Ll. Eadg c. 5. ll Aethelst m. s c. 20. Il. Cnuti c. 7 â— p. 2. here Causes Civill and Criminall were determined This Court and its Jurisdiction was very ancient being famous and used in the same manner amongst the Franks and Lombards as may be seen by their lawes u Ll. Car. Lud. Im. l 4. c. 26. Car. m. Lom l. 2. tit 52. Ll. Aleman tit 36. VVilliam the first divided the Jurisdiction and confined the Bishop with his Causes Ecclesiasticall to a Court by himself which were discussed in the Hundred and Court of the Shire before which appears by that sanction of this King directed to the Earls Sheriffs and all the French and English so it speakes who have lands in the Bishopricke of Remigius Bishop of Lincolne though there onely the Hundred bee named w Not in eadm 167. yet there is added The Episcopall lawes which were not well kept nor according to precepts of holy Canons c. and as this is recited elsewhere They shall bring nothing to the Hundreds or Judgement of secular men x M. S tab Rob. Winch. Arch. Cant. in eadm 168. and every secular Court is alike forbidden to Church-men by the Canons In one or other of these Courts in the lesse or greater all causes were to be determined at mens homes and at their owne doors if the parties would rest there no man ought to sue out of the County to draw his Plea from thence without good cause which might be pretended then and in every remove ought really to be now as appears by the Tolt Pone Accedas ad Guriam and Recordare This good cause was if the Suitor could not have Justice at home or what he had was rigour and summum jus then might appeales be to the Palace to the King there whose Court is called the High Court of Justice for law and equity y Ll. Aelfr c. 38. Ll. Edg. c. 2.11 Cnuti c. 16. after the manner of the ancient Jewish Commonwealth a course observed sayes the most knowing Knight all Europe ore z Gloss tit Cancellaria Our antient Kings as he swore before the Realm and the Priesthood right Judgement to doe in the Realme and Justice to keep by counsell of the Peers of the Realme a Ll. Edu Con. c. 16. viz. In this Court every City and Borough had their Courts the Burgmote kept thrice the yeere the Wardmote the Husting the most antient and supreme Court of the City of London is of Saxon extract which every Munday used to be held now on Tuesday yet does the stile still say held on Munday Lincolne Winchester Yorke and Shepey have their Hustings it held Pleas as it does of things reall and mixt Judges there were too in the manner we finde after the Normans who changed only their name from Aldermen to Justices There was the Alderman of all England Chief Justice as Ailwin Founder of the Church of Ramsey was called upon his Tomb The Kings Alderman as the most knowing Knight thinks b Gloss tit Aldermannus like the Missi c In Capit Gar. m. Franc. ll as our Justices in Eire or of Assize The Alderman of the County Iesse then the Earle but equall with the Bishop which three sate together in the County the Earle was to take care of the Commonwealth the Bishop of the Church the Alderman of the County to declare and expound the law c Gloss ibid. Besides as to execution of publike Justice upon the contumacious he might which our Posse of the County resembles use force raise the people This difference is plaine in that law of King Aethelstane Be Æ¿erum of the estimation of heads d P. 55. part 2 ll v. ll Jnae c. 8 Faedus Regum Aeâ—fr Gath. m. s in gless citant where the were gild or price of an Archbishop and an Earls life who are joyned as equall is fifteen thousand thâ—imsa of a Bishops and Aldermans who next follow and are joyned but eight thousand c. Sometimes the same things are said of both the Earle and Alderman so that they may easily be thought in those places the same This was a Salic Institution to substitute thus two or three under the Earle whom they called Sagibarons as Ingulphus who is altogether for King Aelfred King divided the Governours of Provinces who before were called Vicedomini into two offices into Judges whom now we cal Justices and into Sheriffs yet he has in our Charter Bingulph a Vicedominus which Title the Justices yet in Ingulphus retained and Alferi a Sheriff e In An. 948. The Saxons had their Hold or Heretoch their Military Commander in every County Places had their Bilaga by-lawes besides the Common Law Law made by consent of Neighbours now by the Homage in a Court Baron Suiters in the Leet or view of Frankpledge in towns by the Inhabitants and Neighbours as M. Lamhard The Saxons our Ancestors retained the manner of the old Germans their owne Elders who in Tacitus Jura per pagos vieâ—sque reddehant made distribution of Justice not onely in one Towne or in the Princes Palace but also at sundry other speciall places within the Countrey and as he truly the Normans who invaded the Posterity of the same Saxons here did not so much alter the substance as the name of the Saxons order f Archâ—ion 89. But to satisfie those to whom the Normans may be as odious as their Conquest although perhaps they may be Normans themselves most likely descended by some Mother from them and may seem as fond as if now at Millaine or Pavie after so many hundred yeares they would indeavour to distinguish the Lombard and Insubrian the Insubrian Gaule from the Italian in France the Gaule and German-Franke in Spaine the Carpetane and Wisigoth I say to satisfie them I will prove by the testimony of those who lived then when this Norman change is imagined
them of such delaies c. and to cause the same Justices to come before them c to hear the cause and reasons of such delayes which cause and reasons so heard by good advise of themselves the Chancellour Treasuâ—er the Justices of the one Bench and other c. shall proceed and make a good judgement c. if the difficulty were so great to require it they were to bring the tenor to the next Parliament Where a finall according as this Statute was to be taken according to which the Judges were commanded to proceed to give judgement without delay b 14 E. 3. c. 5. Causes have used to be adjourned out the Courts and to be determined by an assembly of all the Judges called since the Exchequer chamber as in Chudleighs case c V. 1. warranted saies the Lord Coke by the common Law and ancient presidents before this Statute The frequent use of which so he has been the cause why the Court founded upon that Statute of Edw. the 3. hath been rarely put in ure d 4 Just 68. There is a Court erected by Parliament for errours in the Kings Bench as it is called by the Statute e 27 El. 8 3â— El. c. 1. and for those who love no errours another Statute commands That judgement be given after the demurer is joyned and entred notwithstanding any defect in proces or pleading other then such as the party demurring shall particularly expresse f 27 El. c. 5 If things were truly looked into we should finde delayes and other indirect courses to proceed from the artifice and unjust subtilties of suitors of those who prosecute bad causes to infest and wrong other men and from the cheating Mountebanks a skum of litigious men of no rank nor quality nor of any study in the Law who undertake them Impostors more doted on then those of the profession famous for their integrity and industry really and honestly understanding Impostors rather to be listed under the notion of Incendiaries and common Baretors then of any others catching at any thing refused by the honest learned practiser venturing to soder the most broken title by sleights and false daubings to the ruine at last of those who imploy them though not without some mischiefe and infinite vexation of the adversary and the injust Client having consumed himselfe much is encouraged not to flinshe for what follows is blown up with fresh hopes tampered with new shifts and arts of reviving till he has given himselfe wholly up till he is wilful and at last like a Gamster swearing over his last stake he loves every tergiversation and struggles with all his power and cunning to avoid the disgrace and losse of being overthrown when he must see while there is any justice left it cannot be avoided but when this blow hits him though himselfe was the worker and the motion began and continued from his own hand then he implores the faith of God and man Hence is a never dying quarrel to the Lawes the justly deserved calamity is imputed to nothing else If deceits and wrong may not be secure and happy the Lawes shal be cursed and blasphemed like Tacitus his Gods rather carefull of any thing else then to provide as he prophanely for our safety But in these exceptions to the Lawes the kindnesse would be wonderfull if the professours should goe free as it might we meet with an old censure which at the first fight seems something Councellours which includes the professors of all Laws alike it is this That the Lawyers of the best quality and fame one and another all of them seldome refuse any man and since their cannot be a right of both parties oftentimes defend the wrong which in good conscience they ought not nor cannot wish should prevaile To this I reply every right is not clearly seen nor every wrong suddenly known * 4 Reppreface of late some Statutes are long and full of perplexities ill penned here are late and new inventions in assurances which the eye of the Law before never beheld Many unskillful Empericks are employed about wills and Conveyances where if the words of their general president or receipt if they have any will fit the sense of the party who conveys 't is well and lucky otherwise the patches of their own prove dangerous And some ambiguities in clauses and expressions may happen which cannot easily be tryed by any law before nor can any Councellour very often assure himselfe he may give his opinion conjecturally and probably and that is all accidents alone the act of God may make things litigious which it is not in the power of the most wise to prevent The lawyer himself too may not stranges a a man make his mistakes something may slip from him imperfect which may trouble others to judge Suarez speakeâ— excellently of this For whereas says he such is humane condition that a man can scarcely explicate his sense in so perspicuous words but that often ambiguities happen especially in laws of men which are briefly and generally delivered therefore in applying them to various cases in particular many time doubts arise to take away which the Legislator either not in being or at hand to declare his intent The opinion of wise men and interpretation doctrinal is necessary out of which necessity comes the skill of the Civill Law weighty because in every Art the judgement of the skillful of that Art is of great moment and inducing at least probability that is all for if all were of one minde they would make a moral certainty in these things g l. 6. deleg c. 1. The Statute raising the Court for delays before-mentioned makes it plain there may be not onely difficulties but diversities of opinions in the Judges too h 14. E. 3. c. 5. there may be postnate cases which could not be foreseen in the laws where all remedies could not be comprehended nor are all things which follow in confimili casu The Statute of exemplifications begins For the avoiding of all such doubts questeons and ambiguities as have risen and been moved c. in and upon the 3 and 4 of Edward the 6. i 15 E. v. 32 H. 8 c. 26. The declarative Statutes are commonly made to take away doubts and incertainties before Nor is this any wonder that the Councellor should guesse at the case when in the extraordinaries in things strange and undiscovered the Judges themselves sometimes are divided Of the case of the Shellies and the Unckle the Nephew in Queen Elizabeth her time the Lord Cooke reports thus After the said case was openly and at large argued by the Councel of either party in the Queens Bench three days the Queen hearing of it for such was the rarenesse and difficulty so he of the case being of importance that it was generally known and out of her gracious disposition to prevent long tedious and chargeabl suits betwixt parties so neer of blood which would be
chiefe Justice of the Common Pleas having abjured c. for murder His wife and son Petition the Parliament for a Manour which the Lord of the Fee had seised as Escheated in which Sir Thomas had onely an estate for life joyntly with his wife but the inheritance was in the son by fine There were summoned says the Record as well the Iustices of either Bench as the rest of the realme c. expert in the laws and customes c. The resolution speakes Before the Councel c. there being called the Treasurer and Barons and Iustices of either Bench it is agreed c. The famous case of conveening Clerks before the secular Magistrate was debated in the time of a Parliament of Hen. the 8. the Iustices c. being present and ruled according to the opinion of chiefe Iustice Fineux a most reverend Judge y 7. H. 8. Kelle vay 183. Reasonablenesse of time for tenant at Will discharged to carry away his goods of incortain fines of Copy holds c. is to be adjudged by the discretion of the Judges z Inst 57.59 Distresses are by the Statute of Marlbridge to be reasonable a c. 4. No more is said The Judges have ever yet determined that reasonablenesse as they have ever ordinarily what is reasonable in other things just and injust right and wrong what are evil customes and what not according to the Laws they have the use and customes of judgement saies a Statute b De Bigaem c. 1. Good reason then that they be Judges of that use and those customes They may claime this authority by a long prescription it has been allowed them in all Parliaments and by all Parliaments hitherto c V. 1 H 7. 3.4.20 3 Just 3. They in all the books doe not onely expound interpret and deliver the sense of Statutes but in Parliaments too upon consideration of a Bill in the 43 and 44 of Queen Elizabeth it was resolved so we finde a book speak By the chiefe Iustices Popham and Anderson and by divers other Iustices assistants to the Lords of Parlia ment in the upper House That leases to the Queen c. against the provision of the 13 of El. are restrained by the same act d 5. Rep. p. 2.14 The Lord de la Wares case concerning disability temporary and absolute was in a Parliament sitting referred to a Committee which at the Lord Burgley's Chamber in White-hall heard what could be said by Councel in the presence of the two chief Justices and of divers other Justices by whom it was resolved e Rep. 11.1.39 El. Here is an allowance of the latter as wel as former ages whatsoever the change may be let us change till we shall not know our selves if we retaine any face of Law or Judicature so it must be I never heard nor those who have heard more of such a Law yet which could be learned practised and understood without study and which all men but those who had studied and understood it might be Judges of The professed enemies of the Laws of England as such lawes have not been many no not in very many ages much stirre there was much disquiet ere they were had or rather restored Never any tumults all the Histories ore to undoe what was setled I doe not remember any other Law named against it but the Law of Wat Tylers mouth f From this day saies Tiler in London all Law shall fall from Wat Tylers mouth which we can make nothing of we heare of Kets Oke of reformation nothing of his Lawes The Lawes never were made the title of a rising yet I believe under such leaders little of the building would have stood whole Those of the Roman heresie are and have been inveteratly spightfull have more then once attempted to blow the Lawes and the Nation into the ayre together according to that divine determination of the Jesuiticall Oracle that the innocent may be destroyed with the wicked the Wheat plucked up with the tares g Act. p. 93. They would have blown up all our Laws though all of them are not accused not slandered by them not in what I have seen of theirs though likely they shal all have their turns not one of them not yet perhaps traduced by them as they are offended by it if it keep their mischiefes from ripening and be executed against them though much more ancient then our quitting them and their heresies and approved by their own Clergy here but it shall be reproached by them as one of our Statutes Our Laws though necessary and religious against them being called by them cruel Laws h 3 Jac. c. 1. The Statutes of praemunire and provision c. are abominable Parsons the Jesuit that fury of sedition charges the Law of Cawdries case highly and with the least dangerous Ponyards and daggers of his society wounds as he thought the reverend reporter Andrew Eudaemon as others Cacodaemon Johannes in love with the Straw miracle of the Gunpowder Martyr Garnet condemnes our Laws and Courts and the triall by twelve men like Polydore Virgils Ghost in his words He was of Crete so he saies and if we believe him in that we must believe him in nothing else The Jesuits were ever undermining ever active full of plots and treasons and their hatred cannot be imputed to any other cause but this for the ills they had done they feared the barre yet this arrogance they might take from the house of pride of which they were The Prince of which has ever till we left him where he had left the purity of the first ages encroached upon our Lawes and government praetending every where a certain assistance of the holy Spirit for which he is to be obeyed a course I would advise those to take who inveigh next and have nothing to say to the purpose The Pope as the Venetians in the interdict tell the French Kings Ambassadour attributes to himselfe authority to define and determine even against the opinion of all the world what Lawes are just and unjust as Dr. Marta Besides the kisse of the blessed feet he has the free faculty of making and abregating Laws i D' jurisd c. 46. Whence this authority is derived some are not assured they referre it to the spirituall authority with which the temporall is imagined to be indirectly given Others speak plainly that he is a temporall Monarch over all the earth that he might receive appeals from Princes give Laws to them and annul those made by them That Ecclesiasticks are to examine whether the Lawes of Princes be just and whether the people be obliged to obey them if we doubt this think it with the most if we tell the flatterers and Parasites of this chaire the former ages heard nothing not a word of all this They may reply in the words of Paul the 5. That the former Popes did not wel understand themselves a great and certain mark of this
some towardnesse collated the cases of both laws c. to shew that they both be raised of one foundation and differ more in language and terms then in substance and therefore were they reduced to one method as they easily saies he might they might be attained in a manner with one paines I make agreement no argument that lawes are the same where they have as t is said the same foundation but it may be an argument that where they agree in the foundation where the constitutions are neere the same where there are the same definitions and divisions of things they may be digested into a method alike Not to looke upon the twelve Tables we may finde a plain resemblance which I attribute to the foundation upon the Law of nature and Nations in these Lawes The Cornelian de sicariis veneficiis of murder poysoning firing houses de falso of forgery of all kinds of falsity Majestatis about taking arms raising forces c. the Cornelian de injuriis and Aquileian de damno of wrong trespasse damage battery done the Duilian Maenian de Coitionibus the Julian de vi of publike and private force Majestatis of high treason to which the Lutatian of publike force may be added in the digests and clswhere are Laws of discents rights and possession covenants and obligations against deceit in bargaines theft receivers breaking of prison c. of * Code 11. nou 3.5 Collet Churchmen and their possessions c. Besides saying it may be so to make it plain that persons and things propriety of lands and goods acquisition of these rights injuries and actions publike and private offences Writs Courts pleas c. may be listed in order in our Law as wel as any other This most learned Doctor in his Institutions has done it but briefly and according to the fashion of the Imperial Institutions Who saith he shall think himself happy if he can provoke any man to undertake the larger Volumes And Sir Henry Finch in his excellent book called the Law There is extant an Analysis of the Common law done by a reverend Atturney general heretofore where our Law is so naturally methodised and so happily that not onely no law else but no Science whatsoever can excell it for the order though I know want of method in Lawes is no solid objection nor so considerable as to need an answer The illustrious Viscount in his Aphorismes of the Law is of this judgement speaking of regeneration and new structure of Lawes he would have he sayes the words and text reteined and things orderly done Yet he addes in Laws neither stile nor description but authority and the Patron of it antiquity are to be regarded otherwise as he such a work would seem rather something of the Schooles and a method then a body of commanding Laws c Aphoris 62. Neither the Philosophers of old nor their admirers now are to be heeded in these things they may propose things specious but they are every where remote and farre off from use the onely notion our ancient Lawgivers and professors of the Laws intended The most of the Law is Historically related in Annals or yeer-books where the judgements of the Courts in the severall Terms of the yeers are reported as faithfully as they were given according to the true account of time as things fell out in which no method is requisite or can be more then in Histories where all things of the same kind are not ranged together but are set down as they were done And every Commentator must follow his text as he is lead But those who have writ of one certain subject not miscellanists have curiously enough observed this part And where the Annals of the Law which could not be otherwise as is said are thought to scatter things too carelesly The cases in them are abridged and digested under proper heads and titles By Statham Justice Fitzberbert and Sir Robert Brooke as the Statutes are by Justice Rastall c. so that there can be no reason for these complaints These objections onely shew a willingnesse to hurt but are short of doing it Principles of the lawes Lawes are to be tried and examined by their principles if there be any thing unsound there and dishonest too cruel and inhumane they may justly be taxed A Doctor of both the Lawes speaks thus of the Canon law The Canon law is nothing but an beap of ingenious precepts of avarice under the shew of piety few things in it are directed to religion and worship many are contrary and repugnant to them the rest are wranglings strife businesse onely of pride and gain fancies of Popes who have accumulated upon the Canons of the holy Fathers decrees chaff of the Extravagants deelaratories rules of the chancery giving those at Rome power to absolve from obedience break leagues dispence with oathes with the law of nature enough as he to make of the house of prayer a den of thieves d Van scient Here is something said for the sanctions of the sacred Law of the land may justly be said contrarily they commands all those things which are most honest and most just if there were no precept while some other Lawes allow directly the same things against God nature and reason which ours forbid as Incest among the Persians of the brother and sister was more then indifferent cōmunion of women praised by Plato e Repub. 4. amongst our families of love lending wives amongst the Spartanes Polygamie amongst the Mahumetanes and others with the unnaturall love of boyes which a Frenchman calls the ordure of the Greeks the bearded Philosophers approved it Plutarch censures not Agesilaus for it Adultery was commended by the example of their Gods Thieving among the sober Spartanes as Gellius cals them and Aegyptians and sleight of the hand from the greenest youth was honourably allowed by the Lawes of Licurgus not for base gaine but for discipline of warre as he all their policy was directed to the wars Piracy and robbery have been glorious no where heretofore amongst the Grecians in disgrace saies Thucydides This is manifest by some that dwell on the continent saies he amongst whom so it be performed nobly it is still esteemed as an ornament The ancient Poets introduce men questioning such as sail by on all coasts alike whether they be thieves or no as a thing neither scorned by those who were asked nor upbraided by those who would know much of Greece uses that old custom as the Locriozolae the Acarnanians and those of the Continent in that quarter to this day f Thucyd. l. 4 v. Justinum l. 44. Private robbery the Romans suffered not but publikely no men robbed more so that as one of their own if they had restored what they unjustly took away from others they must every man have returned to his Cotage again revenging of wrongs and feudes are much esteemed by Aristotle and Cicero exposing of infants slaves freed or sick men
a far off seen A strong vein of reason runnes every where in the Law but so sweetened with equity and clemency it may well be thought made in a paternal government given by a common father of a family to his children By Judah or Joseph to their Tribes ruling but without a sting Justice must as is said pare off unsound parts such as else would corrupt and destroy the whole body no government can subsist without it Quae fecit si quisque ferat jus fiâ—t aequum There is no greater equity then this that we should be done to as we doe But how unwillingly the Law descends to these last remedies may be seen by the many favours before recited allowed to the most heynous offendours whom yet it does not pity but the frailty of man in them Onely is the innocent and honest man beloved and safe as he onely ought to be in the law He who shall transgresse the Lawes which is not a single impiety such one as much as lies in him frames a new Commonwealth to himselfe and new lawes as if he had power to free himselfe from those bonds which nature and civil subjection have tied him in who casts off all obedience to peace and justice who maliciously violates the sacred inhibitions of restraint wickedly breakes through all those barres which no law can prevent religion and conscience must give the check if he fall or break his neck by the way the Lawes are not to be complained of the calamity of his ruin is meerly to be imputed to himselfe though sometimes the punishment may be thought severe it is never new nor inhumane never so great as the offence One of our terrible judgements so it is called is the judgement in an indictment of conspiracy the same which was in case of attaint against a Jury by which the bodies of the offenders were to be imprisoned in the common Gaole Their wives and children to be turned out of their houses those with their lands to be seized into the Kings hands to be wasted and their trees extirpated all their goods and chattels to be forfeited the Conspirators for ever to lose the benefit of the Law this was called villainous judgement As the Lord Coke inflicted by the Common law for that the offenders by salse conspiracy under the pretext of Law by indictment of treason or felony and legal proceeding thereupon sought to doe the greatest injustice by false conspiracy to shed his bloud who afterwards is lawfully acquitted z 3 Inst 222 Subtilty which wrests a manifest text of the Law is condemned as unrighteous a Hub. 125. So is cunning and malicious interpretation of the Law there He who wrests a text of the Law though to maintain truth does against distributive justice saies the Lord Coke b r. 10. praef v. leg non dubiuÌ„ One reason of the severity of this judgement may be given in the words of the Statute of the banishment of the Spencers The Law which was instituted for the maintenance of peace and of good men and the punishment of the evil is turned by such courses to the disheritance of the great men and destruction of the people c 15. E. 2. 3 â—nst 222. If the party acquitted that we may see how many severall waies the law provides for the innocent man bring his action against the Conspirators as he may he shall recover answerable damages all practises to subvert justice truth and innocency are punished by the law he that wil professe himselfe the advocate of wickednesse and injustice and declaime against the Law for suppressing them deserves to fall into the danger of what he too unjustly loves Perjury of witnesses and subornation were ever odious in the law The murderer perjured man and adulterer in an old law goe together d Ll. Cnuti c. 6. perjury was punished by the realsfang or pillory the punishment of perjury was too to quit the Countrey after forfeiture of moveables e Fleta l. 2. c. 1. then fine and ransome f Brit. 38. Now forfeiture of a certain sum and imprisonment g 5 El. c. 9. Bribery was ever abominable the judgement against Sir William Thorpe a bribing Judge was as in felony In Fleta the punishment of a corrupt Judge was to be excluded the Kings Councel for ever to lose his lands rents goods and their profits for a yeer after to be punished by discretion c. It came to fine and ransome No great Officer Justice nor publike minister by a Statute shall take any gift or brocage of any person who hath to doe before him 11 H. 4. under the penalty to forfeit the treble lose his place to satisfie the party c. to offer a bribe was an offence punishable by the Common law Extortion is another great misprision punishable by fine and imprisonment h Trin. 6. Car. reg in Camara flell It would take up too much time to run over the names of all offences and their punishments But some are full of Sir Thomas Moores kindnesse and think it too much that a man should lose his life for crimes under murder as for theft c. for which antiently losse of a hand or leg or banishment were in use i V. Concil Berghamsted Concil 197. Ll. Cnuti c. 61 Ll Ina c. 3â— AEthelst c. 1. yet the party taken in the manner hand habend might be killed amongst the Saxons he could not buy his crime out and the Spanish condemning to Gallies is thought by some the onely course Mr. Daniel will have it that as yet writing of Henry the seconds time they came not so far as blood which is not so King Henry the first abrogating the weregilde by which a man might have bought out his offence made a law sayes Haveden ut siquis in furto vol latrocinio deprehensus fuisset suspenderetur to hang the thief k Hoved. Sav 47 1. in H. 1. with whom Wigornien sis and Rad. Niger agree after in the latter end of the reigne of king Henry the third we finde a thiefe who had stoln 12 oxen beheaded l Ma. Par. continat 1005. Capital punishments have not onely been in use against homicides but other transgressours too and amongst those who worshipped God rightly We meet with no divine precept before Judah which makes whoredome worthy of death yet when he is told Tamar thy daughter in law bath played the harlot He answers bring her forth and let her be burnt We may proceed sayes Grotius by conjecture of the divine Will with the help of natural reason from like to like and that which is a law against homicides may be extended to others as dangerously mischievous m in bâ—l 14. I will not dispute it whether there be more mercy in death * v eadm 94 cutting off legs c. or in the Gallies I believe the boldnesse and number of such malefactors begot the law of death and those