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A01080 A learned commendation of the politique lawes of Englande vvherin by moste pitthy reasons & euident demonstrations they are plainelye proued farre to excell aswell the ciuile lawes of the Empiere, as also all other lawes of the world, with a large discourse of the difference betwene the. ii. gouernements of kingdomes: whereof the one is onely regall, and the other consisteth of regall and polityque administration conioyned. written in latine aboue an hundred yeares past, by the learned and right honorable maister Fortescue knight ... And newly translated into Englishe by Robert Mulcaster.; De laudibus legum Angliae. English and Latin Fortescue, John, Sir, 1394?-1476?; Mulcaster, Robert. 16th Century 1567 (1567) STC 11194; ESTC S102454 98,618 567

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of Iustice Cap. 23. MOreouer if by reasō of bargaynīge or by sufferinge of iniuries or by title of īheritāce right do accrewe to aman to pleade in iudgement if there be no witnesseis or if such as were witnesseis be deade the plaītif must needs lett his actiō fall except he be hable to proue his ryght by ineuitable coniectures whiche is seldome seene Wherfore concernynge lordeshippes and other possessions rueled by the ciuile lawe and in all accions fallynge vnder the same lawe the actions of the plaintifes for wante of witnesses many tymes are choked so that skant the halfe parte of them atteyneth to the desiered ende What maner of lawe then is this whiche to them y e susteyne wrōg thus faileth in yeeldinge Iustice I doubt whether it deserue too bee called a iuste lawe because in the same lawe it is wryten that Iustice rendreth too euerye mā that which is his owne But this cannot such a lawe doo PReterea si ex contractibus illatisue iniuriis vel hereditatis titulo iꝰ accreuerit homini agēdi in iudicio si testes non fuerint vel si qui fuerint moriātur succumbet ipse agens in causa sua nisi ius suū ꝓbare valeat ineuitabilibꝰ coniecturis quod facere crebro non contīgit Quare de dominiis et aliis possessionibus iure ciuili regulatis similiter et in omnibꝰ actionibꝰ cadētibꝰ sub eodē iure actiones agētiū ꝓ defectu testium quā pluries suffocātur ita qd earū vix ꝑs media optatū finē sortiatur ’ qualis tūc est lex huiusmodi q̄ iniuriatis taliter deficit in iusticia reddēda dubito an iusta vocari mereatur quia in eadem lege scribitur quod Iusticia vnicuique tribuit quod suum ē qd nō faciat lex talis Here hee declareth how counties are deuided and shieri●ffs chosen Now that we haue opened after what maner the Ciuile lawes do enfourme a iudge of the truthe of a matter brought into iudgement it is consequent to declare by what meanes the lawes of Englande doo boult out the trueth of suche a matter For the orders of bothe the lawez beynge layde together the qualities of thē bothe wyll more playnely appere forsomuche as the philosopher sayeth that contraries placed one by an other wyll shewe thē selfes more euidently But herein after the maner of oratours in steade of a proheme it shall not bee amysse that we open certen thinges before the knowlege whereof shall geue light too thinges whiche heareafter shall come in talke wherefore thus we doo proceede The royalme of Englande is deuided into counties as the royalme of Fraunce is into Baylywyks so that in Englande ther is no place that is not with in the bodie of some countie Coūties also are deuided into hūdreds which sōe wher are called wapentages And hundredes are deuided into villages vnder which appellation are cōteyned borowes and Cities For the boundes of villages are not conteyned within the circuit of walles buyldynges or streetes but within the compasse of fildes greate territories certein hamlettes and many other as of waters woodes waste groūdes whiche it is not needefull nowe to set furthe by their names because that in England there is skante any place which is not conteined within the cōpasse of villageis though certeyn priuileged places within villageis are supposed to be no parcell of y e same villages More ouer in euerie coūtie ther is one certeyn officer called the kynges shierief which amonge other duties belongynge to his office putteth in execucion all the commaundementes and iudgements of the kynges courte that are to be executed within his countie His office endureth but for one yeare so that after the expiratiō of that yeare he may not minister in that office Neither shall he within ii yeares next ensueynge be admited to y e office agayne This officer is thus chosen Euery yeare the morrowe after All soullen daye all the kynges counsellers meet together in the kynges exchequer aswel y e lordes spirituall and temporall as all other Iustices all the barones of the exchequer the maister of the rolles and certeyn other officers where all these with one commen assent doo name of euerie countie iii. knightes or esquyers whome amonge other of the same countie they take to bee of good dispositiō and fame and best disposed to the office of the shiereif of that coūtie Of the whiche iii. the kynge chooseth one whome by his letters patents he appointeth sherief of the countie that he is chosen of for the yeare then folowinge But he before hee receaue his patent shall swere vpō y e holye ghospell amonge other articles that he shall well and faithfully and indifferently exercise and doo his office all that yeare and that he shall receaue or take nothyng of any other man then the Kynge by colour or meane of his office These thynges beynge thus nowe presupposed lett vs proceede too the searche of those thinges that we seke for Exposita iā forma qua leges Ciuiles de veritate facti in iudicio deducti iudicem erudiunt superest vt modū quô leges Angliae huiusmodi facti eliciunt veritatem etiam do ceamus Nam ambarum legum formulis contigué positis qualitates earundem lucidius eminebunt cum dicat Philosophus quod opposita iuxta se posita magis apparent Sed in hoc oratorum more prohemii loco quedam p̄narrare congruet quorum agnitione deinde tractando clarius patere queant quare sic procedimꝰ Regnum Angliae per comitatus vt regnum Fraunciae per balliuatus distinguitur ita vt non sit locus in Anglia quae nō sit īfr ’ corpꝰ alicuiꝰ cōitatꝰ Cōitatꝰ quoque diuiduntur in Hūdreda que alicubi Wapen tagia nuncupantur Hundreda vero diuidūtur per villas subquarum appellatione continentur et Burgi atque Ciuitates Villarum etenim metae non muris edificiis aut stratis terminan tur sed agrorū ambitubus territoriis magnis hamiletis quibusdā et multis aliis sicut aquarū boscorū et vastorū terminis quae iam non expedit nominibus designare q̄a vix in anglia est locus aliquis qui non infra villarum ambitus cōtineatur licet priuilegiati loci quidam infravillas de eisdem villis pars esse nō censentur Preterea in quolibet comitatu est officiarius quidam vnus regis vicecomes appellatus qui inter cetera sui officii ministeria omnia mandata et iudicia curiarum regis ī comitatu suo exequenda exequitur Cuius officiū annale est quo ei post annū in eodem ministrare nō licet nec duobꝰ tūc sequētibꝰ ānis ad idē of ficiū reassumetur Officiarius iste sic eligitur Quolibet anno in crastino animarum cōueniunt in scaccario regis omnes consiliarii eius tā dn̄ispūales ettēporales quā alii ōnes iusticiarii omnes barones de scaccario clericus rotulorum quidam alii officiarii vbi
shall vnderstande that though these degrees are not geeuen in the lawes of England yet there is geeuen in them not a degree only but also a state no lesse worshipfull and solempne then the degree of doctours which is called the degree of a Seriant at lawe And it is geuen vnder the manner fourme fo●owyng The lorde chiefe Iustice of the commen benche by y e coūsell and assent of all the Iustices vsethe as ofte as he thinketh good to chose vii or .viii. of the discreetest persones that in the foresaide generall studye haue most profited in the lawes and whiche to the same Iusticez are thought to bee of best disposition and their names hee presenteth to the lord Chancellour of Englande in writtynge Who incontinent by vertue of the kinges write shal charge euery of the ꝑsons elect to be beefore the kinge at a daye by hym assigned too take vppon him the state and degree of a serieaunt at lawe vnder a greate penaltie in euerye of the said writtes limitted On the whiche daye euery one of them appearing shal be sworne vpō the holye gospell of God to be ready at the daye place then to bee appointed to receaue the state and degree aforesaide and that he the same daye shall geeue golde accordynge to the custome in that behalfe vsed Howe bee it howe and after what sorte euerye of the saide chosen persones shall that daye demeane himselfe and also the fourme and maner howe that state degree shal bee geuen receued forsomuche as the same can not so briefelye bee written as to the shortnes of this woorke is requisite therefore at thys tyme I will leaue these pointes vntouched And yet I haue declared the same to you ere nowe by waye of talke But thys you must vnderstande that when the day appoīted is come those electe persons among other solemnities must keepe a greate dinner like to the feast of a kinges coronation which shal continue last by y e space of seuen daies And none of those elect ꝑsones shall defraye y e charges growinge to him about y e costes of this solempnitie with lesse expenses then the summe of foure hūdreth markes So that y e expēses whiche viii menne so electe shall then beestowe will surmount the summe of thre thousande and two hundreth ma●ks Of y e which expenses one parcel shall bee this Euery of them shal geue ringes of golde to y e value of xl poundes sterling at the least And your Chauncellour well remēbrethe that at what tyme hee receaued this state and degree y e ringez which he then gaue stode him in fifty poundes For euery suche serieant at the tyme of hys creacion vseth to geeue vntoo euery Prince Duke and archebishop being presēt at that solempnitie and to the lord Chauncellour and Lorde Treaseroure of Englande a ringe of the valu of .xxvi. shillings viii d And to euery earle and bishop beeinge likewise present and also to the Lorde priuie seale to both y e lordes chief Iustices to the Lorde chiefe baron of the kinges exchequer a ringe of the value of xx s And to euery lord baron of the parliament to euery abbott notable prelate worshipfull knight being then presēt also to y e maister of the roles to euery Iustice a ring of y e value of a mark And likewise to euery baron of y e exchequer to the chaumberlaines and to all the officers and notable menne seruynge in the kinges courtes ringes of a smaller pryce but agreable to theire estates to whome they are geuen Insomuch y t there shall not bee a clerke speciallye in the court of the commen benche but hee shal receaue a ring cōuenient for his degree And besydes these they geeue dyuers rynges too other of theire fryndes They geue also liueries of cloth of one sute or colour in greate abundaunce not onelye to theire houshold meanye but also to their other fryndes and acquaintaunce whiche durynge the tyme of the foresayde solempnytye shall attende and wayte vppon them Wherefore though in the Vniuersities they that are promoted too the degree of Doctors do sustaī no small charges at the tyme of their cōmēcemēt as in geuīge of bonnetes and other ryche gyftes yet y ey geue no gold nor do bestowe any other giftes or costes lyke vnto these expenses Neither ī any coūtrey of the world is there any special degre geuen in the lawes of the sāe lāde but onely in y e royalme of Englande Neither is there any man o● lawe throughe out the vniuersall world whiche by reasō of his office or ꝓfession gaynethe somuch as one of these seriaunts No man also be he neuer so connynge skylfull in the lawes of the royalme shal be exalted to y e office and dignitie of a Iustice in the courte of pleas before the kīge or ī y e courte of the cōmē bench which are the chiefe ordinarie courtes of the same royalme oneles he be first ꝓmoted to the state and degree of a seriaunt at law Neither shall any man but onely such a seriaunt pleade in the courte of y t commen benche wheare all reall actions are pleaded Wherefore to this state and degree hath no man bene hetherto admitted except he haue first cōtinued by the space of xvi yeares in the said general studie of y e lawe And in token or signe that all Iustices ar thus graduat euerye of them alwayes whyle he sytteth ī y e kīges courtes weareth a white quoyfe of silke whiche is the principal and chief in signemet of habite where with seriauntes at lawe in their creation are decked And neither the Iustice nor yet the seriaunt shal euer put of y e quoyfe no not in the kynges presence thoughe he be in talke withe his maiesties highnes wherefore most noble prince you can not hereafter doubt but that these lawes which so singularli aboue the Ciuile lawes yea and aboue the lawes of all other royalmes are honoured and with so solempne a state of such as are learned therein and do professe y e sāe are worshipped must needes be precioꝰ noble and hieghe and of greate excellencie and of speciall knowlege and vertue SEd cū tu princeps scire desideres cur ī legibꝰ Angliae nō dantur baculariatꝰ et doctoratus gradus sicut in vtroque iure in vniuersitatibus est dare consuetū Scire te volo qd ’ licet gradus hm̄oi in legibus Angliae minime cōferātur datur tamen in illis nedum gradus sed et status quidam gradu doctoratꝰ nō minꝰ celebris aut solēnis qui gradus seruientis ad legē appellatur Et cōfertur sub hac q̄ subsequitur forma Capitalis Iusticiarius de cōi banco de cōsilio et assēsu oīm iusticiariorū eligere solet quotiēs sibi videtur oport●mū septē vel octo de maturioribus ꝑsonis qui in p̄dicto gen̄ali studio maius in legibus proficerūt qui eisdē iusticiar ’ optimae