Hovedens words this I will note here that Henry the second made Ranulphe of Glanville chief Justice of England by whose wisdome the laws underwritten were made which we call of England make no new law nor that chief Justice a law-maker they explain what is intended by the laws of Henry the first his Grandfather for the laws there underwritten w Hoved. pars pest 6â—0 are meerly King Edwards laws confirmed by William the first king Richard the first swears to keep the good laws c. x Paris in Rich 1. without saying of St. Edward which yet can be no other those as is shown had got the name those must be meant by the expression good lawes the kings before and after swore to keep them K. Iohn absolved from the Popes thunder though at his Coronation by that oath to destroy bad laws substitute the good to exercise right Justice he had sworn the same y Ma. Par. 197. is forced to swear that he will as there revoke or restore the good laws of his ancestors here the expression good lawes is interpreted and especially the lawes of king Edward z Id. 239. In the same place where king John commands that the lawes of his Grandfather Henry be kept this must be intended of the first laws of his great Grandfather Henry the seconds Grandfather so often mentioned in the controversie betwixt Henry the second and that Martyr of the Roman make without a cause disobedient unruly Becket a Hov. 492. in H. 2 called by that king as before his Grandfathers lawes I say his great Grandfather Henry the first before here recited where Henry the first grants lagam Edwardi regis the Law of king Edward A Charter of which Stephen the Archbishop of Canterbury produces in the very next page of Mat. Paris after the absolution which well might be produced several transcripts of that Charter being sent by Henry the first to be preserved in the Abbies of all the Counties and there tells the Barons of the kings promise which he forced him as he says at his absolution to make that was to take away all injust laws and the good and just laws to wit as he still the laws of king Edward to revoke for restore and cause to be observed by all in the realm And now as he goes on there is found a certain Charter of king Henry the first by which if ye will your lost liberties you may to the Antient state revoke the transcript agreed word for word with the Charter b Ma. Pa. hist 55.210 the great sticklers for the lost liberties for the good and just laws for St. Edwards laws are all of them Normans or Norman-French such as came in since Edward and being setled here for some generations now made a great part of the whole amongst which are Fitz-walter Marshal of the Hoste of God and of holy Church this was his stile in the succeeding wars Vescy Percy Ros de Bruis Stuteville as there Saerie of Quincy Earle of Winchester the Earle of Clare descended from the Norman Gislebert Bigod Vere Fitz-Warin Marshal Beauchamp Manduit Fitz Allen Mandeville * Estoteville Munhrey * Mowbrey Montfichet Munifichet Montacute de Gant Laval c c id 254. These when king John asked them what laws they would have answered not Sir We are the Norman Conquerours give us this people for a spoile a prey make them our villains but quite another thing they offer him a Scedule for the greatest part as this Monk containing the antient laws and customes of the realm the chapters of the laws and liberties says he which the great men the Barnage or Baronage as in other places he cals them sought to be confirmed were partly written above in the Charter of king Hen. partly taken out of the ancient laws of king Edward d id ibid. Alll which lawes with much adoe were confirmed by king John this Scedule is the same and everywhere agrees with our Magna Charta or grand Charter and that of the Forrest granted and confirmed by king Henry the third called then by this Author the long required liberties e id 323. or rather by the whole Clergy and Nobility who tel the king they would give him the fifteenth which he desired if he would grant them the long required liberties which says this Historian the king granted and presently Charters were writ one of the common liberties c. And strengthened with his seal and one sent into every County But says he the tenors of the Charters is had above more expresly for here he recites not a word of them So that as he still the Charters of both the kings are not not found in any thing unlike u 5. H. 3 l. 1. Mort. dancest In. 323. in an 1224 the 8 of the King as he yet th charters has an 9. In the year foregoing this King was sought to by the Archbishop of Canterbury Stephen and the other great men the Barons at Oxford where he held his Court to confirm the liberties and free customes c w id 316. Which he did not then do but sent his letters or writs to all theâ— Sheriffs of the realm to cause twelve knights or legal men of every County to enquire upon oath what were the libertics in England in the time of king Heary his Grandfather so he is yet called x id 317 Ma. Wâ—st the breakers of the Charters are Excommunicated with candles burning cast away extinguished and cast away stinking y Id. 861. Thus we see the stream of the laws of king Edward the ancient liberties and free customes some times running freely sometimes weakly sometimes stopped in their course at last have brake through all the Dams have mixed and incorporated with the great Charter whose basis and foundation they are z Nobilis D. Rog. Twisâ— den praefat in Ll. w. 1. H. 1 there still in being and still the fountain of the Common Law The great Charter raised upon this basis in one of the Statutes of confirmation is commanded by king Edward the first to be allowed by the Justices in judgement as the Common Law a 25. E. 1 c. 1 So that well might the Lord Cook say The great Charter is but a confirmation or restitution of the Common Law b Iast 81 It hath been confirmed above 30 times and by a Statute if any Statute be made against one of these Charters it is to be void c 42 E. 3 c. 1 â— which if it were intended not of the time past but of the time to come I see no such absurdity in it as some mens over wise policies would fancie some parts of it being as moral and immutable as the Decalogue it selfe As those That no man shall distraine for more service then is due no man shall be amerced for a small fault but after the manner of his fault no man shall bee destroyed
without triall justice shall not be sold nor deferred c. The observation of these Lawes was a condition of Peace which ever appeased the antient distempers and cemented what was loose and dis-joynted in the great body The Lawes toe of St. Edward are inserted into the oath of the Kings of England usually taken at their Coronations which were not onely superfluous and abundant but an impious vanity if there were no such lawes any where after the solemnity of this religious and sacred bond to be observed The manner of taking the Oath as we find is this The Archbishop asks the King VVhether he be willing to take the Oath usually taken by his Predecessors and whether the Lawes and Gustomes by the antient just and devout Kings granted to the people of England with the confirmation of his Oath he will grant and keep to the same people and especially the Lawes Customes and Liberties by the glorious King Edward to the Clergie and people granted d Ex libro regali After he is led to the high Altar where he swears to observe them c. Further so farre are some from allowing our Lawes to be Norman that they are of opinion the Normans received theirs from us as they most of their Customes being so derived as William of Rovel in his Preface to his Commentary upon the grand Customary Edward the Confessor being a long while in Normandy gave Lawes to the Normans and made the Customes of England and Normandy e D. Spel. gloss v. jurata which if it were not so nothing is lost by it nor does it make any of these truths suspitious * Sup. 55. that so few of these Lawes are come to our hands of which something is said before and of their Book-Cases or Judgments none at all There never could be any such Volumes of them heard of as are fancied besides the honest simplicity of the first ages and the strictnesse of rules spoke of writings and deeds either to pass Lands or Priviledges were not in use till King VVithred neer 700. years after our Saviour that King being so illiterate that he could not write his name as himself confesses f Concil Sax. 198 King Aelfred little lesse then two hundred years after this complaines of the ignorance then that there were scarcely any on this side Humber who could understand the ordinary common prayers or translate a piece of Latine into English but in the beginning of his reign on the South of the Thames he remembred not a man who could have done it g Ibid. 379 Epist Aelfredi ad Walsagepiscep and although this King of sacred memory if perhaps as I cannot thinke he was not the Solon and Arthitect of our Saxon English order yet a great restorer of it built gloriously upon the frame he found yet these were lesse then beginnings would likely have been where such a Prince had been the Workman he could not intend them the Danes like a fatall whirlewinde tearing up root and branch every where ruining had long before broke into the Land which two hundred yeers together they miserably harassed with whom he fought fifty six battells and as may be imagined had not leisure to performe the duties of peace but in his armes sometime hid in the poore shed of an Herdsman as the most knowing Knight a King without a Kingdome a Prince without people so that hee could not thinke of his Lawes h Concil 378. and although there was some breathing and the storm had some intermission some calmes were in the two hundred yeeres some in his reign yet such ravage and spoil had these barbarous theeves made and so universall might the Confusions and Disorders be we may conceive it would be the labour of no short peace to restore things fallen or shaken to their first condition without making any the least progression this being not to be done till the corruptions which warre licentiousnesse and carelesse negligence have bred in the parts most sound are plucked up and the weeds throwne out which must be the worke of time The proceedings too of the Saxons our Ancestors as M. Lambard in judgement was de plane and without solennity enough to cleare this though the Saxon Lawes then were enough for the Commonwealth yet they had no great extent whatsoever unto S. Edward gathered out of the Lawes of those who followed this King and saw more quiet dayes or out of the whole body of the Saxon Lawes could not reach farre but not out of any defect in the Law it selfe then the cause why the law runs in a larger channell and spreads into more veines now is not any artifice or injust dealing of those who practice it but the improvement of estates by good husbandry much traffique whence contracts are more frequent As Sir John Davies there is more Luxury and excesse in the world more force deceit and oppression more covetousnesse and malice breach of peace and trust which as they gather strength and multiply so must the laws there is a necessity that as these mischiefs increase there should be supplements of laws to meet with them Mr. Daniel observes of the Assize of Clarendon long after the Saxons that it consisted as it does of very few points and that the multitude of actions which followed in succeeding times grew out of new transgressions c. When the Romans were little better then shepheards and herdsmen it is said a few Ivory tables contained their laws after they came to be Lords of the world thousands of Books were writ of the Romans Civil Law Albericus Gentilis justly reprehends Ludovicus Vives who maintained as he that all things might be finished by a few laws as the same Mr. Lambard speaking of the Law of England positive or written Law neither is nor can be made such a perfect rule as that a man may thereby truly squâ—e out justice in al cases which may happen for written lawes must needs be made in generality and grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particularity which experience and time doth beget i Archeior 76 77. There is a curse of peace the highest prosperity has its dangers there can be no safety in it the rich man is more infirm more unsound then the poore pride and malicious contention are diseases he is seldom free from it is well said of wicked men and their injustice there is need of many laws to bridle them of many Officers to execute of many lawyers to interpret those laws We know all laws come not in by heaps but as time corrupts things and new wrongs and offences are discovered by the same degrees Thus the Sumptuary laws amongst the Romans came in the Fabian of Plagiaries the Julian of publike or private force de ambitu and the rest all our Statute laws which are remedying So must it be and so it has been in all Commonwealths of
the givers name called the Lawes of Hael Dha Further King Edward the first who totally subdued Wales in the Statute called Statutum Walliae where he changes many of their old Lawes by his words there makes it cleare that the Lawes of England and of Wales could not be the same for so there had been no change The words are The Lawes and Customes of those parts hitherto used we have caused to be recited before us and the Barons of our Realme which having diligently heard and fully understood as it is fit were laws worse then those there should be full understanding ere a change certaine of them by the counsell of our Barons foresaid we have blotted out certain we have suffered and certaine corrected b Stat. Walliae or of Rutl. 22 E. 1. Perhaps it was not thought fit after a new Conquest to make a thorough alteration of things too suddenly yet was this a long Statute and much of the Law of England imposed upon them by it The 27. of King Henry the 8. swept all clean That commands that the Lawes Ordinances and Statutes of this Realme of England for ever and none othr Lawes O rdinances nor Statutes shall be had used practised and executed in the said Country and Dominion of Wales c. c 27 H. 8. c. 26. The Saxons as M. Daniel made such a subversion of State as is seldome seen the new retained nothing of the former which held no other memory but that of its dissolution scarce a City Dwelling River Hill or Mountain which changed not names The distance made by the rage of war was so wide between the conquering and the conquered people that nothing either of Laws Rites or Customes came to passe over unto us from the Britains nor had our Ancestors any thing from them but their Countrey d Hist 9. But the Author of the patches to the Lawes of St Edward though in Geoffrey of Monmouths strain goes full up to King Brute himself of Geofferies begetting speaking of the weekly Husting of London sayes he which was builded a long while agoe like and after the manner and in memory of old great Troy and to this day it containeth in it selfe the Lawes Rights Dignities Liberties and Royall Customes of old great Troy e Ll. S. Ed. c. 35. c. which like the Phoenix lives in its ashes and here such is the kindnesse of some of our quaint Authors has overcome Greece in the grave being more fruitfull in noble Colonies then her Enemy so that it must be a very faire discent where the pedigree is brought downe from old great Troy As of old the Greek Lawes so since the German Nations have overflowne Europe now are the German Institutions every where received and in force sayes Grotius f De jure belli c. 133. As the Lombards Burgundians Franks Swevians and Vandalls and other the brothers and kinsmen of the Saxons seated themselves in Italy France and Spain and spread their Lawes where they over-ran upon no other Title but that of the Sword so did the Jutes Angles and Saxons plant themselves and the customes of their first homes here first as friends and allies invited in by the British King Vortigen having lands dwelling places given them to fight for the Countrey they make a league with the Picts the publike enemies destroying those whom they were called in to protect in which manner they setled themselves leaving none of those amongst them but such as were content with slavery Their owne Countrey-man venerable Bede borne 227. yeares after their landing tells us comparing them to the Chaldeans whom I choose to refer him to who would know more g Bede hist l. 1. c. 15. p. 59. their Lawes and Language though themselves have suffered by their owne blood by their fellow Tribes the Danes and Normans some of those calamities which they made others feel where time and age and corruption gnawing to which all things are subject have not made a little change continue in the maine to this day These Nations so powred out of Germany retaining the rites and terms of their own Countries all of the same manners and tongue It commeth to passe as the most knowing h Gloss 435. Col. 1. knight that there is so much consonancy betwixt us and the Germans French Italians Spaniards and Sicilians both in the Canon of the ancient lawes and in the names of Magistrates Officers and Ministers of State therefore as he goes on Let them brag that will of the antiquity of their municipal lawes their beginnings can be had no where else Germany it is meant is the common mother The terms of art of some of these Nations got as far as Constantinople amongst the Greeks where we may finde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Captain from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a throng 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he that holds by knight service from buccella a morsel buccellarius is amongst the wise Goths of Spain thus used 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 homage 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is gelt rent tribute c. from the Saxon geld 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bill scedule c. and many more which Meursius in his Graeco barbara has collected the most ancient laws of al these people are the salic laws nay of all laws now compiled obtaining These and the Franks who made them were of Germany so named from the River Sala in Frankenland not from Franiker as Ortelius would have it They were made in the third yeer of Pharamond king of the Germane Franks 105 yeers before Justinian the Emperour who published the Imperial Laws The Author where he has no Latin puts in his Franko-Germanic of the Latin fashion As William of Oangis in the yeer 420 the Franks began to use Laws and did dictate their Laws by four Princes of their Nation sala signifies in the Dutch an Hall as with us or Palace whence are called law salic manners-salic vassals salic which belong to the sale Hall or Palace and as yet is to be seen the salic book Salbuch in the German libraries like our Doomesday or Liber Agrarius here says another who tells us there of the Salian Franks the Authors of this law named so from the former river seated on both sides of the Main upon which stands Francford the head of the Nation i Boioar. hist l. 4.313 of whom and this Law is said before what the best Authors write In the same Salic Law are many words used in ours as Campio Forresta Forrestarius Sparuarius Marcha Veragelt which is our were gild c. These Customes went with Pharamond eight yeers after into France then after those of the western Gothes in Spain the Burgundian Laws the lawes called Alemaaic Boian and Frank other then the Salic were instituted by Thierry the first son of â—lodove who first became Christian corrected by Clothaire and Childebert and perfected by Dagobert After follow the Lombards who as they were a
to be that there was no such overturning of things as is believed The Title of the Lawes called the Lawes of King William the first published by M. Selden with his learned Notes upon Eadmer and since with the Saxon Lawes is this These are the Lawes and Customes which William the King granted to the whole people of England after the Conquest of the Land these were those which the King Edward his Cousen beld before him In these Lawes recited by Hoveden in the life of King Henry the second ' King Edwards Lawes are confirmed in these words This we command That all men have and hold the Law of Edward the King in all things together with those Lawes which we have added for the profit of the English g Pars Poster 661. This Confirmation was not freely given but in this manner King William having heard the Lawes of the Danes and Normans and approved them as the Chronicle of Lichfield having approved the Lawes of those of Norfolke Suffolke Grantbridge and Deira c. he commanded they should be observed through the Kingdome as more just then any others because himselfe and his Barons were Norwegians by extraction not a word is there of any resolution to introduce his Norman Laws this the English thought a more killing blow then that of his Victory they beseech him and by the soule of King Edward c. to permit them to injoy their owne ancient Laws and Customes under which their Fathers lived themselves were borne and bred up to wit the Lawes of holy King Edward and they tell him it could not but be very hard to receive Lawes unknowne and to judge of those things they understood not h The Paraphrast of these Laws Chron. Lich. The King long resolute at last yeelds and as these with much authority were venerate and through the whole Realme corroborate and before other Lawes of the Realm the Lawes of King Edward not because he found them but because be restored them sayes Gemeticensis of the same age with King William i l c. 9. The Chronicle of Lichfield and Hoveden are more large with which agrees the first Chapter of the Lawes of good King Edward thus it speaks Which King William confirmed all of them use neer the same expressions By Precept of King William say they are elected out of every of the Counties of all England twelve of the most wise men who were injoyned before King William that in what they might neither declining to the right hand nor the left in a direct way they should lay open the Constitutions of their Laws and Customes nothing omitting nothing adding nothing out of prevarication changing k Hoved. 601 Chron. Lâ—ch ll Ed. c. â— Further yet in that Chronicle Aldred the Archbishop of Yorke not Thomas Archbishop of Canterbury as the Paraphrast would have it there being no Thomas of that See till lawlesse Beckets dayes who as this and Malmesbury crowned him l Malmsâ— l. 3. 〈◊〉 vita Pontific and Hugh Bishop of London by command of the king writ with their own hands what the foresaid jurates said from the laws of holy mother the Church beginning c. Ingulphus Secretary to William in Normandy and after made Abbot of Crowland by him is witnesse enough alone and as he I brought this time with me from London where he had been about the businesse of his house to my Monastery the laws of the most just king Edward which my Lord William the renowned king of England had proclaimed authentick and perpetual all England over to be kept under most grievous penalties commended to his Iustices in the same tongue they were set forth m Ingulph p. ult This proclamation was not all to allay the stormes which perhaps the violation of these laws had raised for the good of peace says an ancient Monk He swears upon all the reliques of the Church of S. Albane touching the hol Gospel Abot Fretherick ministring the Oath the good and approved ancient laws of the realm which the holy and pious Kings of England his ancestors and especially King Edward set forth inviolably to keep n Vita Ab. S. Aâ—b 8. s â—0 that the English laws were in use then I can prove out of that famous plea of Pinnendeâ—e betwixt Lanfranck Archbishop of Canterbury and Odo Bishop of Baieux and Earl of Kent there it is said the King comanded al the County without delay to sit all the French of the County especially the English in the antient laws customes skilled to assemble o Not. ad Eâ—d 198. William the 2. promises onely easie laws justice equity and mercy and laws desirable p Hunting l. 7.372 ead 13. Ma Par. 14 Heved in h. 1. which his successour Henry the first construes and there could be no other meaning to be meant of these laws he swears To take away all the injustices and oppressions of his brother promises the good and holy laws to keep and to strengthen the liberties and ancient customes which flourished in the realm in the time of S. Edward the King q Ead. 55. Malmsb. in Hen. 1.156 Ma. Pa. 55. and in his laws he says The law of King Edw. I grant you with those amendments made by my father with the counsel of his Barons r Ll. Hen 1. c. 2. Ma. Pa. 56. and in the same place those things which hence forward shall be done shall be amended secundum lagam according to the law of King Edward yet after he imposes a new law a medley out of the salick ripuarian and other forreign laws with some pieces out of King Cnuts Danish laws which were but a small time observed and could not take any thing from the lawes of King Edward king Stephen confirms the laws in these words all the liberties and good laws which Henry King of England my Vnkle granted them and I grant them all the good laws and good customes which they enjoyed in the reign of King Edward s Ex lib. autiqu Ll. The Londoners request of Maetildis the Empresse daughter of Hen. the 1. That they may be suffered to use the laws of Edward because as they they were the best and not the laws of her father Henry because they were grievous which she refused whence great commotions were made t Florent wig in an 11 42. cont which grievous laws certainly were that salic rapuarian Danish medly and likely enough a commotion in those boisterous times would follow the refusal many of the disquiets and tumults of those first reigns being raised upon the pretence of the breach of these laws a pretence so taking that the Noâ—mans themselves either coloured their insurrections with it or else preferred these before their own laws and ran the hazard of their lives fortune in earnest for them Henry the 2. commanded the laws of his Grandfather to be observed u Hov p. pricr in H. 2. of which below
the feudal honorary ninrges Ãegne Kings Thane who held of the K. in chief that his land only was honorary Taineland that he held by service of personal attendance by service of an Office or military attendance he maks the ðeoden Medmera Ãegne or under Thane to be feudal too * Which sein Concil Sax. 406. Now in print and the same with a Vavassour out of the M S. of Athelstanes laws sometimes at the Library of St. James he cites Si Ceorlman prove batur ut habeat 5. hidos terrae ad ut Waram which should be utfaram expeditionem regis c. That is says he held of the King by knight service w Tit. Hon. 2. edit 622 624. In Doomesday tit Bockingham scire is Burchard Teigue 1. Baro Regis Edwardi That is Baron of King Edward Amongst the witnesses to the priviledge of King Aeiheldred granted to the Monastery of Christ Church in Ganterbury is Aethelmere the kings Discthene translated dapifer Leafric his braegel thene Master of the Wardrobe Siward the kings thene a t raed of his Councel x Concil 500 501. which certainly were Thanes or Barons by the service of these places We read of those in the Saxon Cronologie who served not n ordinary lived not continually at Court * v Sax. Cron. 534 543. or neer the kings person like those in the Confessors Chatters here yet are called the Kings Thenes The words are these And in those three yeers many of the kings most choice Thenes dyed amongst which were Suithulfe Bishop of Rochester and Ceolmund Alderman or Earle in Kent and Beorhtulf Alderman amongst the West-Saxons and Wulfred Alderman in Hamptonshire and Ealheard Bishop at Dorchester and Eadulf the kings Thane amongst the South Saxons and Beornwulf the Gerefe in Winchester and Ecgulf the kings Master of the Horse his horse Thene and many other of the most noble y Cronolog Sax. 545. Which I shall make yet more cleer when I come to speak of Hereot out of the Laws of King Cnut This Law is meant of the lesse or under Thane If any Thegne which in his bockland opposite to so cland which passed without writing hath a Church and a burial place c z Ll Edg. 2 to make it more full as before is said that the policie of these Germane Nations tended much to war the very ceorlâ—â— or plowman could not under such a penalty keepe at home when an Army was to march a Lâ— Ina. c. 52. and whosoever withdrew himself from the march forfeited all he had b Concil â— Aeâ—ham c. 24. if the king were in the expedition The Doomesday says In the City of Hereford The Burger serving with his horse when he dies The King shall have his horse and armes As there Wallingford in the time of King Edward the confessor conteined 276 hages or houses rendring ten pounds of rent or gable and who remained there performed the kings service with their horses or by water We finde in the Saxons times in a gift of lands reservations of services and creation of Tenures king Aelfred at peace with Guthrun the Dane whom he wins over to the Faith gives him the Provinces of the cast Angles and Northumberland to be possessed by Foedal and hereditary right c Concil Sax. 379. Asser men vens John Pik who writ in the reign of king Henry the first says king Aelfred gave these Provinces c. Vnder fealty of the King that he might preserve that by hereditary right which he had invaded by robbery Malmesbury relates this in the same words d de gest reg l. 2. c. 4. in the Chronology we finde Here Edmund the King wasted all Cumberland and gave it to King Malcolne king of the Scots on condition that by Sea and Land he should assist him in his wars ê§ he Æ¿aere his mid Æ¿yrhta that he were his fellow in action e Cronal Sâ—x in an 945. of the first of which Harding has To whom the King gave then all Eastenglond To hold of him the Lond. Malmesbury reports in the life of King Edgar That there came to his Court Kunadie King of Scots Maleolne king of Cumberland the arch Pirate Admiral Maccuf all the kings of the Welsh Dusual Gifreth Huual Hoel Dha Jacob and Judethil whom Edgar bound to himself in a perpetual oath f l. 2. 4. c. 8. v. tit Hon. which may be called Fealty Where the same Harding recites the beneficiary Clyents or Princes who had sworne Fealty sayes Mr. * Mare claus 280. Selden to king Cnut he addes So did the Kings of Wales of high Parage And all the North-West Ocean For their Kingdomes and their Lands than There is an example of the creation of knight service here before the Normans in the lives of the Abbots of St. Albans Then sayes the Monk in the time of Abbot Leofstane and Edward the Confessor The Chilterne a small country neer the Monastery was full of Woods in which lodged divers beasts wolves not then it seems extinct bores wild bulls and deere and which were more mischievous thieves out lawes banished men and fugitives Abbot Leofstane to the profit of this Monastery granted to a certain stout knight Thurnoth and to his two comerades Waldef and Thurman the Manner of Flamsted on condition that the said knight Thurnoth with his comerades forenamed and their heirs should preserve the west parts abounding most with thievs as well from noysome beasts as theeves and answer such losse as by their neglect should happen and if common war should happen with all their diligence and power defend the Church of St. Albans which they saith he and their heirs faithfully performed till king William conquered England then that Manor was taken from them because they would not endure the Norman yoke but a certain Noble man Roger of Thony to whom that Manor fell stoutly performed that service g Vit. Ab. 46 In Doomesday is said That the Church of holy Mary of Worcester has the hundred called Oswalds hawe in which lye 300 hides of which the Bishop of that Church from the constitution of antient times has redditiones socharum regis servitium suum Which is made Socage rents and knight service 3. Rep. Praef. In an old Charter of the age of Doomesday book are these words To Edwin and all the Teigues and Drenges and to all the men of St. Cuthbert of Goldinghamshire greeting the same as Sir Hen. Spelman with Barons knights and Freeholders In Domesd tit Cestresc Of this Manour another Land fifteen men whom they called Drenches for fifteen Manors held and tit eod in Villa Wallingtone To that Manor belonged thirty four Drenches and so many Maenors they had It is cleere so the Glossary that these Drenches were a kinde of vassals but not ignoble who held by knight service one of which Drenches he conceives Edwin in Norfolk whose posterity was after called Shireburn to have been who proving
before William the first that he sided not against him and that being found true he and all those in his condition h Weentun Monum hiâ— example â—n Câ—â—ington of Sir Rob. Cotten like to lose all were confirmed in their Lands and Lordships to have and hold those are the words of the confirmation as wholly and peaceably as ever they did before the conquest By the Records of Term. Trin. 21 E. 3. Comit. Ebor Com. Northumb Rot. 191. This Drench is described thus That the foresaid Vghtred held the said lands viz. In Northumberland of our Lord the king and of his progenitors kings of England by the service of a Drench which service in the parts foresaid is such that of whomsoever he holds any thing there by such service it is held and if the Tenant dye his heire being within age the Wardship of the heir and land belongeth to the Lord of which c i D. Spelm. gloss verbâ— Dronches with the marriage Whether wardship and marriage as the Lord Cook k 4. Inst 193. no badges of servitude be of the same antiquity with king Aelfred I will not take upon me to determine the Lord Cook as also the Mirrour in the place cited by him are for the affirmative l Inst 1. p. 76.4 Inst 292. mire sect 3. graft 911. c. By a law if any man dye intestate the Lord is to have nothing but what is due by the name of Hereoâ— m Ll. Cnuâ—â— c. 68. by Mr. Lambard this is acknowledged Engish-Saxon and thought to be the same with relief one place sayes Relief or rather Herent n Not. in radwes 152 and Hereot or relief o 154. 161 id compares the Hereota to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hereor is a service and acknowledgement of the seigniory of another a tribute so Dr. Cowel given to the Lord amongst the Saxons for his better preparation toward the war In the Monastical institutions of king Edgar Hereot is called geÆ¿unlic gae ul a customary Cens or duty said to be given to the kings by the great men of this Country after geþtenege their death It is forbidden by this king to be given for all Abbots and Abbesses p In not ad eadm before as it seemeth not so free as here the words By the great men after their death make it quite another thing though it is called so from relief which is for the heir and never paid but where there is one q Gloss verbo Hereot The Hereot was to be reasonable and here again we shall see the ranks of the Saxon noblesse The Earls eight horses four sadled four not four Helmets four coats of maile and eight spears as many shields four swords and two hundred * Saxon â— Marks of Gold The greater Thanes the kings Thanes four horses two sadled two not two swords four spears as many shields an helmet a coat of maile and fifty marks of Gold The Medmere or under Thane one horse ready his weapon or as amongst the West Saxons his neck ransome amongst the Mercians two pounds amongst the Easâ—-Angels two pounds The Kings Thanes Hereot amongst the Danes who has free jurisdiction ðe his socne haebâ—e foure pound and if he be further knowne to the King two Horses one sadled the other not one Sword two Speares two Shields and fifty markes of gold The conclusion has not Infimae conditionis Thani as the Latin is But he that has lesse and lesse may be he two pound r Ll Conti. c 69. other Lords had their Hereot too The Lawes of Kings William which as the title were the same which King Edward obserued calles this which in these Lawes is Hereot reliefe and the Earle Kings Thegne and Underthane who are here charged as is said there are called and named Cnute Barun and Vavasour and charged much in the same manner Å¿ â— 22 23 24 v. c. 20. with little difference King Edwards Latin Lawes where any man falls in warre before his Lord by Land or else where forgives his reliefe t c. 3â— and gives his Heires his Lands and Money without diminution u ibid. I will observe a little out of those old grants and Charters which preceed the Normans by which the religious heretofore made their titles onely carefull to get and to be free where we shall finde other men were not so The confirmation of Pope Agatho of the new raised Monastery of Medeshamstede after Peterborough before the age of Charters w An. 680. Concil Sax. 164. recites the immunities It was to be in no ðeudom in no kinde of servitude neither to King Bishop nor Earle No man was to have any rent or tribute there in the Councel of Becanceld King Withered freed the Church from all difficulties of saecular servitude from feeding the King Princes Aldermen Earles from all works the greater and lesser grievances c. x Concil Becanceld Au. 694. Concil Sax. 190. Witlafe King of the Mercians in the yeare 833. confirmes to the Monastery of Crowland their Lands and Tenements thus I grant deliver and confirme those Lands and Tenements c. for a peaceable and perpetuall possession to have from me and my Heires whosoever Kings of the Mercians after me to succeed in puram Eleemosynam in perpetuall and pure frankalmoigne Libere quiete et solute or as we now use it quit and discharged from all saecular charges exactions and tributes whatsoever by what name soever y Ingulp hist Concil Sax. 328. as another place amongst many things done said Ceolnoth the Archbishop before the whole Councell of Kingston shewed That the aforesaid Kings Egbert and Aethelwulfe his Son gave to Christ-Church at Canterbury the Mannor called Mallings in South-saxon free from all secular seruice and tribute royal except these three expedition military fird or firdfare upon the Herebanne the proclamation or edict military and to repair Bridges Castles Brugbote and Burgbote z Concil 340. by some not to be released * Charta Eâ—dbaldi Mâ—lmsb de gest reg l. 1. Iâ—ae reg Glelienb Concit 228. which was not true The most learned Mr. Selden saies in England before the Normans were military fiefes the Earles and Thanes were bound to a kind of Knight service all the Lands of the Kingdom except some priviledged c. held of the Crown mediatly or immediately but saies he the expedition mulitary c. those three were not so much by reason of tenure as general subjection to occasions of the state a Tit. Hon. 1 Edit 321. likely so yet to recite the opinions of others there are that thinke this firdfare to be the same with our escuage the Charter of Kenulph An. 821. the Mercian King to Abingdon discharges all services but the expedition of twelue men with their shields cum scutis burgbote c. as the most knowing Knight In the antient Charters
are to doe even law and execution of right d 20 E. 3. c. 1. The supreme of these Benches after this alteration dealt in pleas criminall called placita Coronae in the books e 4 Inst 71 Stamp Pleas of the crown examined and corrected errors misdemeanors and offences against the peace granted the Habeas corpus and upon return of the cause relieved prisoners held pleas by Bill for debt detinue covenant promise of all personall actions of ejectione firmae and the like against any in the custody of the Marshall or any Officer of the Court who may implead others in those actions of all trespasses with force and armes of Repleviuâ— Quare imâ—â—dit c. of Assise of Novel disseisin These Justices are the soveraign Justices of Oyer and Terminer of Gaole delivery and conservators of the peace c f 4 Inst c. 7. This Bench may grant prohibitions to all other Courts to keep them in their bounds The Chancery as before supplies the wants and relieves against the rigour of the Law in its extraordinary juâ—isdiction The Ordinary held pleas of sâ—ire facias to repeale the Kings Letters patents of Petitions monstrance of right Traverses of offices of partitions there of scire fac upon recognizances there Writs of Audita querela and scire fac ' in the nature of it to avoid executions there endowment might be there by the Writ de dote assignands upon offices found execution upon the Statute staple or recognisance in nature of it upon the 23 of Hen. the 8. Personal actions might be brought there by or against an Officer or minister of the Court it is the officina justitiae hence all Writs issue it grants the Habeas Corpus out of Term g Ibid. c. 8. In the Court of Common pleas or commune bench all real actions are determined and all common pleas mixt and personal Besides the Stationary Courts at Westminster there were the Justices in Eyre the sitinerant Justices Charles the bald in the yeere 853. divided France into twelve parts and over every of the parts placed men famous for Religion and Law who yeerly travelling their own Divisions took cognisance of wrongs done betwixt party and party and of the publique offences according to justice By which pattern King Hen. the 2. of England in the yeer 1176. divided this Kingdom into six parts over every of which he appointed three Justices yeerly to goe their Circuits h Hoved. 548. M. VVestm l. 2.39 though I know not why this institution is made more ancient by others These were followed by the Justices of Assize since in being by whom they are swallowed up their circuits are twice the yeere and at certaine times having the power of Gaol-delivery added with the authority of the Justices of Nisi prius annexed also the inquiry and determinations of many things else given by latter Statutes and by another Commission of Oyer and terminer the power to deale with Treasons Murders Felonies and all misdemeanours whatsoever they have one other Commission of the peace in the Counties of their circuits by vertue of all which together they sit More perhaps cannot be devised for the ease of the people Thus is justice brought to their own dores the same thing with a fixed standing Court and as it may chance more safe The lesse the Judge is known in the Countrey the lesse is the danger of siding or biassing I speak not this as if I had more feares then other men or were for any of the new jealousies these are the feares of severall of our Parliaments There is aprohibition in two Statutes That no man of the Law shall be from henceforth Justice of Assises or of the common deliverance of Gaoles in his own Countrey i 8 R. 2. c. 2. 13 H. 4. c. 2. and a third Statute of confirmation is more full it sayes That whereas it is enacted that no man learned in the Lawes of this Realm should c. be Justice of Assise in the Country where he dwelleth since divers men learned in the Lawes c. have by their means and policy and for their own commodity c. obtained to be Justices of Assises in the Countries and Counties where they were born or were inhabiting whereby some jealousies of their affection and favour to their kinsmen alliance and friends c. hath been conceived and had c. enacted c. that no Justice c. use nor exercise c. as before k 33 H. 8. c. 24. Upon such like reason is there another Statute enacting to this purpose that no Lord or other in the Countrey sit upon the Bench with the Justices of Assise l 10 R. 2. And as nothing humane I might say divine too fathered somewhere as high as upon Lycurgus his Apollo or the whispers of a Numa and his Eugeria where Gods might be fancied to descend for the production and caelestiall wisdom to flow into it never so excellently contrived can please all men so perhaps whatsoever production shall or can be it may have if not its mischiefes and inconveniences yet some failings incident to the imperfections of man in it selfe and by corruptions from without their grace and flourish may be but short nothing is so incertain in the taking as new Lawes much must be ventured much committed to fortune and if according to the Saxon form which is shewn is not yet extinguishd and what is lost in jurisdiction or rather in use in the lower Courts is supplyed as is shewn too by a way if not better yet equal to it standing Courts were every where and what is more daily open at the Countreymans doore This would not perhaps so much ease the honest just man ever upon the defensive who ever sues but for his peace and the quiet preservation of his own right as it would multiply vexatious prosecutions some the greater number and the worst men composed of malice and contention would be incouraged by it to molest others the trouble and expence being so little and the way to imbroyle so ready and neere there would be nothing but complaints the Law and its remedies would quickly he abused they would be as great a plague as some men who onely say so would have them imagined to be actions would fly thick and swarm so fast one yeere would bring forth Volumes more swelling then all the Annals now read and if every man might be the patron of his own Cause often his in justice nothing would be wanting to make the confusion periect all decency and respect would be forgotten for which nothing would be had but prodigious noise and rude tumults Farther those who now are kept off by the conscientiousnesse of the knowing Lawyer who has made a discovery into the injustice of the cause and oftentimes restreines the heady client to run on would presently be at the shock fall into the danger of a trial which being blinded with their own fury their malice onely
whom death with so much infamy so often really before their eyes cannot fright will never think any torment whatsoever where life is left them though with more misery then can be spoken terrible But it is thought horrible and grievous that a mans life which is invaluable in the law should be taken away for a thing of nothing for 12 pence Which says the most learned Knight is the antient law of the English Nay for lesse by the antient law of the English I may say so King Aethelstanes lawes begin with thieves and speak thus First that man spare no thiefe so I render it according to the words who in the manner having in his hand taken is above twelve yeers old c above eight ponce n c.r. either eight pence or twelve pence The law is full of equity this king gives a ram c. in the Preface as the Saxon worth four pence that which as Sir Henry Spelman sold heretofore for twelve pence would now be worth 20 or 40 s. in the Assise of bread long after the Saxons in the 51 of Hen. 3. eight bushels of wheat are valued but at twelve pence and although now the 12 keepes not the old rate but the modern yet things are prized in trials of life far below their worth and no man loses his life but where the thing stoln in estimate rises to more then many twelve pences That title of Cosroes amongst his others a king who hateth war may justly be given to our laws Peace the greatest blessing of this life and without which nothing else can be a blessing is everywhere provided for everywhere charged and commanded Peace is commanded to be kept in the Pallace or Hall of the king the forfeiture of the breach being the losse of all the offendor has and his life at discretion in the church the house field and town the mulct of wrangling was made 30.8 o Ll. Ina. c. 6. Ll. Alfr. c. 7. Ll Edv. sen c. 4. Ll. Etheldr c. 6 Every man was to give pledges heretofore of his good behaviour the violation of Faith so given was punished and is called breach of the peace Every breach of the peace was such violation Everymans house as the law since expresses it is to be his Castle He who infringed the freedome or liberty of the house called râ—m soone by house breaking forfeited all he had and his life was to be at the kings wil p Ll. Edm. c. 6. Grith or frithbrice were the terms for breach of the peace King Cnut in his laws first wills that Gods peace and the peace of the Church be kept then his own q Ll. Cnuti c. 12.14 and again We must provide for peace or the amendment of it most desired by dwellers and most odious to thieves r c. 8. Amongst the Prerogatives of the West Saxon kings are these breach of peace house freedom Å¿ c. 12.14 The Statute called Westm the first speaks Let the peace of the Land be maintained in all points The first of R. 2. Let the peace be well and surely kept c. according to the Law of the Land In the title of the Statutes of the 50 of Ed. 3. are these words To the honour of God and of holy Church and quietnesse of the people Which used to be the title of Parliaments t â— Inst 9. The Statute of Hen. the 7. concerning Justices of peace has That the subjecti may live in surety uner his peace in their bodies and goods Inprimis interest reipub ut pax observetaer is a mixime of the Common Law affirmed by Parliament u 2. Inst 158. In all Actions for any thing done against a Statute law where the words vi armis are left out yet the Writ has contra pacem against the peace w r. 9.50 Every affraying as Mr. Lambard or putting in fear is breach of the peace The laws do not onely make orders for the maintenance of the peace but as to the execution of the charge have appointed general and particular Officers and Ministers to manage this part and to undergo this care The Lord Chancellour Lord High Steward of England Lord Marshal c. Justices of the kings Bench says Mr. Lambard had authority inclosed in their Offices for the conservation of the peace all England over The Justices of the Common pleas are said to be conservators onely in special places The Master of the Rolles was a general conservator by prescription Coroners and Sheriffs are to be conservators within their Counties Justices of the peace instead of the ancient conservators antiquated are especially warders of the peace so are Tithing men Borougheads Constables and petty Constables in their limits As the first of Ed. 3. x 1. E. 3. c. 15.4 E. 3. c. 2. In every County good men and lawful that been no maintainers of evil nor barretours in the Country shall be assigned to be Justices of the peace As the 18 of that king Two or three of the most substantial men with other learned in the Law as the 34. A Lord with three or feur of the most substantial c. By a Statute of King Henry the 6. The Justice must have Lands and Tenements to the value of xx l. by the yeer he is to be sworn duly and without favour to keep 13. R. 2. c. 7 and put in execution all the Statutes and Ordinances touching his Office As by the Iaws of all Nations civil Religion and the Priesthood have their priviledges and honour so no laws ever favoured piety and the Church more then these and this fully and so often that if it be made by any an objection of prejudice it cannot be denied it must be confessed by all hands Those of the Roman new creed have in every age very clamorously and furiously slandered our Laws not onely as short and imperfect but as unjust to be detested by all the faithfull y Becket in Ma. Par. 101. Such as without a saving the honour of God and of holy Church z Hoved. Savil. 492. are not to be sworn to against the faith as the Bishop of Rochester may be thought to mean a Graft 1187. The exemption of the Clergie taken away by the Laws of Clarendon where yet only the old Laws were restored was thought as legal an impiety as heinous as could be yet Bellarmine though a man more nimble then ten thousand Beckets durst not make it of Divine Right Jure Divine valde conforme is as much as he thinks it is Not of Divine Right that were too high not of Humane that were as much too low but very conformable to Divine Right which is a ridiculous conforformity and makes it neither the one nor the other Within five years in the time of King Henry the 2. there were above one hundred murthers committed in England by Priests and men within Orders so that it was time to take heed of these
the nature and disposition of the people or whether they will breed any inconvenience or no but a custome never bindeth till it hath been tryed and approved time out of minde during which no inconuenience did arise for if it had been found inconvenient it had been used no longer but had been interrupted and so had lost the vertue of a Law This is declared to be so by the Lords and Commons in Parliament in the 25 yeare of King Henry the eight which I shall cite below and if the Judgements and Declarations of Parliaments be not regarded I know not what can give satisfaction * Vid. 3. c. Ancient liberties and customes which have been usitatae approbatae used and approved m c. 9. Stat. Mert. make the Common law The statute called dictum de Kenelworth speakes thus the party convict shall have judgement according to the custome of the land n 57 Hen. 3. c. 25. The 27 of King Edw. the first of Fines Contrary to the lawes of our Realme of ancient time used The 34 of the same King confirmes to all Clerks and Laymen their lawes liberties and free customes as largely and wholely as they have used to have the same at any time when they had them best o c. 4. law and custome of the Realme are made the same p 1. E. 2.34 E. 3. Abjuration is called custome of the Realme q 9. E. 2. c. 10. The 25 of King Edward the third saies According to be lawes of the land of old time used r C. 2. The title of the 27 of this King speaks in maintenance of the lawes and usages the Statute 36 of the same King Lawes Customes and Statutes Å¿ C. 15. Statute 42. according to the old law t C. 3. In the time of Richard the second Law and usage are the same u 1 R. 2. c. 2. It would be tedious to heap up more of this kinde I will only adde the declaration of the Houses of Parliament in the time of Henry the eight which is thus Their words being directed to that King This your Graces realme c. hath been and is free from subjection to any mans lawes but only to such as have been devised made and ordeined within this realme for the wealth of the same or to such other as by the sufferance of your Grace and your Progenitors the people of this your realme have taken at their free liberty by their owne consent to be used amongst them and have bound themselves by long use to the observance of the same c. as to the customed and ancient lawes of this realme originally established as laws of the same by the said sufferance consents and custome and none otherwise w 25. Hen. 8. c. 21. Now if what the people of England have taken up out of long use custome and consent be not good agreeable and convenient after so much and so long triall they would appear the most foolish of all people They would not deserve that free liberty which themselves by their repraesentors tell us at the submitting to and taking these lawes they had and if they be good agreeable and convenient they would appeare the most foolish of all people by their change No lawes ever were or can be made with more equity then these to which besides use and custom and experience free liberty and consent of those who were to observe them gave life There is custome of Courts which is law too part of the Common law x Plowd Com. 320. as the Statute of Kenelworth If any man shall take revenge because of the late stirres be shall be punished according to the custome of the Court c. y C. 26. Six times is the Common law called by Littleton common right It is sometimes called right sometimes justice z Mirc c. 2 Sec. 16. Fleta 6. c. 1. Mag. Ch. c. 29. Magna charta calls it justiciam vel rectum justice or right Westm 1. Common right and the King wills these are the words That the peace of holy Church and of the land bee well kept in all points and that common right be done to all as well to poore as rich c. later statutes have Justice and right a 1. R. 2. c. 2. full justice and right b 2. H. 4.1 good justice and even right c 7. H. 4. c. 1. Common droiture in a statute d West 1. c. 1. is rendred Justice according to the law and custome of England e 2 Just 161. called common right as the Lord Cooke Because the common law is the best and most common birth-right the Subject hath for the safegard and defence not only of goods lands and revenues but of his wife and children body life and fame also f 1 Just 142 2 Just 56. That which is called common right in the second of King Edward the third g C. 8. In the first of that King h C. 14. is called common law Not onely as Fortescue doe the lawes of England favour liberty i C. 42. But they are notioned by the word The word liberties in Magna Charta signifie the lawes k C. 1.29 and in that respect is the great charter called the charter of the liberties l 2 Just 47 The Statute de Tallagio non concedendo has these words That all the Clerkes and Laymen of our realme have all their lawes liberties and free customes c. m C. 4. In the 38 of Edward the third the Laws are called Franchises in the old Bookes the great Charter the fountain of all our * Just 81. Foundamentall Lawes is called the Charter of Franchises the common Liberty the Liberties of England n Bract. 291 414. Pleta l. 2. c. 48 Brit. 178 because so the Lord Cooke they make frecmen o 1 Jnst 1 The customes of England bring a freedome with them therefore in Magna Charta are they called Free Customes p 2 Just 47. Mag. Char. c. 29. the Courts of Justice are also called Liberties because in them as the same book the Law which maketh free-men is administred q Mich. 17. Epist 1. in com berot 221. 2. 2 Jnst 4. the Law then is Liberty it selfe Liberty and Law are convertible nor is this Liberty titular onely and a Liberty of words In the expressions of the Petition of right out of Magna Charta cited in the first Chapter and out of the 28 of Edward the third No free man shall be taken imprisoned or disseased c. but by lawfull judgement or by Law of the land and no man of what estate or condition soever shall be put out of his lands or tenements nor taken imprisoned nor dis-herited nor brought to death without being brought to answer by due process of Law which is as after in that Petition of right either Customes of England or Acts of Parliament r 3 Car. Reg
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
Colonie of the German Saxons so are their lawes full of their and our Customes agreeing together in many things yet k Dn. Spel. gloss 440. When Austin the Monk was sent hither by Gregory the great to convert the Saxons in the yeer 597. Not one hundred and fifty yeers after the entrance of the Saxons he was commanded by him to take interpreters with him out of France in his way l Bede l. 1.25 and it was unlikely while the Saxons yet kept the language of their Countrimen they should have forgot their Customes contrary to the manner of all the other Tribes of that Nation The first Saxon lawes writ by them after their Conquest are those of Ethelbert of Kent the first Christian and Monarch then which says Venerable Bede amongst the other good deeds he did his people set constitutions of right judgements according to the example of the Romans with the Counsel or advice of his wise men Mid srotera geþeat Which he commanded to be writ in English and which are held says he of his time long after Aetbelbert to this day m l. 2. c. 5. These were short and rude like the age Next are those of Ine the West-Saxon those of Offa the Mercian Kings of Alfred King of England founder so Ingulphus of the English policie and order ever since observed called by the book of Ramsie The renowned King Alfred founder of the English Laws Who is first said by Master Lombard and others of the greatest name to have divided this land into Shires Hundreds and Tithings c. to establish jurisdiction in every of them n Archaolog 15. again it is said he gave not onely lawes but Magistrates Shires Hundreds c. which so one place speaks we have often observed o Gloss tit Ll. Angl. Iugulph Though no man can honour the sacred memory of this most glorious Prince more then my self and I know viros magnos sequi est pena sapere yet I cannot believe this Malmesbury speaks onely of the Hundreds and Tythings the invention of which he attributes to this King p de Gest reg c. 4. He might which the Glossary is once contented with review the Lawes of Aethelbert Ina and Offa transcribe and insert whatsoever was worthy into his lawes and impose them upon the Angles the English generally as the Danes submitted to him in which name the Jutes and Saxons were included he might adde much and polish what he found being never idle ever imployed for the good of his people either in his Courts and Councels of State or in the head of his Army But he that looks upon the lawes of King Ine will find enough to assure him that King Alfred laid not the first stones of the Government which by whomsoever laid were laid before King Alfreds great Grandfather was born there being neer 200 yeers betwixt these two kings q Fasti Savil Not to recite the lawes upon offences we read in the lawes of King Ine of the Shire the Alderman and the Kings Alderman One law speaks thus If any man shall let a thief escape or hide the theft c. If he be an Alderman þolige hisscire he shall forfeit his Shire c r Ll. Ina c. 36. Another If any man shall demand Justice or right before the Shireman the Earle or other Judge Å¿ c. 8. v.c. 6.51 c. The Proaeme mid eallum minum ealder mannum and with all my Aldermen the chapter of breach of the peace In the Kings Town Aldermans Town Kings Thames Town c. t c. 46. Thorold a Benefactor to Crowland Abby long before King Alfred in two old Charters is called by King Kenulph Vice Comes Lincoln and by King Withlaf quondam Vic. Com. Lincoln sometimes Sheriffe of Lincoln u Concil Sax 3â—8 Ingulph 854.857 Venerable Bede who flourished in the time of King Ina tells us in the days of King Edwin King of the Northan hymbres Paulinus the first Archbishop of Yorke converted to the Faith Blecca with his family Line cole ere szre geÆ¿efan w Bede l. â— c. 16. l. 5. c. 4. p. 375. The Gerefe of Lincoln and elsewhere says he Hanwald the gesiþ a word rendred comes with his geref w th his Sheriffe Aethelwine betrayed King Oswine x l 3. c. 14. l. 4.22 l. 5. c. 4 5. Hundreds and Tythings are not named in the Lawes of the Kings Ina or Aelfred In King Ina's Laws pledges borgas are named by which probably we may think Tythings to have been then One Law wills if the geneat the husbandman as now we speak steal and run away that the Lord pay the angild the price c. if he have no pledges y Ll. Ina. c. 21. Ll Edg c. 6. Cnati 19.27.35 After the laws of King Aelfred those of Edward the Elder of Aethelstone Edmund Edgar Aetheldred and of Cnut the Dane succeeded all which were distinguished and ranked under three heads The first of the Weft-Saxons under whom as united and submitted were comprised the Saxons generally caled Æ¿estseaxna laga the West Saxon Law The second of the Mercians or Angles called Myrcna laga the Mercian law the best and most select of which King Aelfred as before took into his laws not rashly as he says in his Preface He durst not as his words are because he knew not what the next age would like set forth much of his own What he did still as he pleased his wife men w Praefat. in Ll. Alf. those of his Counsel The Ãeâ—elaga was the last of these called the Danes law of all which we may say as is observed out of Ovid. Facies non omnibus una Nec diversa tamen qualem dicet esse sororum Yet King Cnut as much resemblance as there was lik't it not out of all these laws he composed one Common Law which King Edward the Confessor observed z Malmesb de gest reg l. 2. c. 11 â— See here ch 3. His title says The laws of St. Edward begin quas in Anglia tenuit which he held Edward the third before the Conquest as one set forth one Common Law called the lawes of Edward to this day a Ranulph cester l. 1. c. 550. Hov. 600. Ll. Ed c. 35. in Hoved. which because they were just and honest as the Paraphraste upon the Laws of St. Edward he recalled from the deep abysse and delivered to be kept as his own As another he was the lawful restorer of the English laws b Gemetic l. 6. c 9. all this may be he restoâ—ed them and recalled them from the deep Abysse they might be forgotten dedicated as the Paraphrast speaks to oblivion wholly but not as he addes from the time of King Edgar in the reigns of Harold the first and Hardicnut Besides restoring and addition he commanded this law should be kept as his own and being a king of the Saxon blood and falling last upon the work it is
of Geolph sonne of Malt in Halington four Oxganges of land of Jnland which the Margent once corrects by Luland for Juland both which make it non-sense there is added and ten Oxganges in service The words Mannor Mansions Teuements Marshes common of Pasture of all Beasts are frequently met with in the antient Grants made by the Mercian and West Saxon Kings to the Monastery of Crowland f Inulphus Savil 859 864 881. with the termes acres hides Carues Oxeganges Yardlands Firmes Rents c. many of those Mannours had their Royalties or huge Priviledges as Ingulphus calls them annexed both of Jurisdiction in some parts lessened since and profit King Edgars Chatter this Monastery describes and grants them I grant and confirme sayes he c. free from all secular charge and that they have all the free Customes with all that which is called Soc Sac Tol and Team Infangthef Weife and Streye g Id. 881. amongst which Sac in the Halmot since Court Baron was common to all Mannors In the great Plea of Pennedene of which before the Archbishop is said to darrein all the Liberties and Customes of his Church Soca Saca Tol Team Flymena Fyrmthe for Flymen firm Grithbrice Forsteal Haunfare for Heinfare and Infangennetheof h Not. in Ead. 196. most of which are now worne out unknowne in these base Courts yet I will say something of them not that I pretend to give full satisfaction being in some of them unsatisfied my selfe as they are upon whom I relye for Soca D. Cowell cites S. Edwards Lawes i c. 23. He sayes some will have it an Inquest as if it were seek some Suit of Court others an exemption of the Tenents from any publike duties without the Mannor or Liberty called still soke soon socne is in Saxon liberty * Ll. Cnuti c. 69 4. free Jurisdiction frithsocne is a sanctuary a liberty of peace k Ll. Eccles r. Cnuti c. 2 In the lives of the Abbots of S. Alhanes we read with all the lands which William Chamberlaine or the Chamberlain held in the Soke of Luiton l 69. it is the Liberty or Jurisdiction of the Lordship within which the Lord may hold his Court to which the Tenants ought to resort to doe their Suit and out of which they are not to be drawne Sac is conusance of Pleas Tol is said to be a liberty to buy and sell within the Mannour m Ll. Edu c. 24. more likely some duty paid to the Lord upon such sales Team in other Saxon out of the Lawes is progenie by some made a power to have and and dispose of villains and their race it is so I gather from the Saxon laws cognizance in a Court-Baron of things claimed stollen where he in whose hands the goods were found might vouch his Vendor and he over till the Thiefe was discovered if hee were teames ƿyrþe as King Cnuts Lawes speak if he deserved the right as having bought before legall witnesses otherwise not and he was to pay the penalty imposed at the third Voucher the Owner is to have his goods the team was to be in the place where the goods were found no man was bound fylgean team to follow it I know not whether timþ is used in the Laws of Ine for vouch getiman in those of Aelfred for the Voucher as geteaman in those of King Edward the elder and King Aetheldred timan and teaman to vouch team for vouching tymoe he hath vouched in Aethelstanes Lawes tyman team in those of Aetheldred team teames tyme in Cnuts in the same sense n Ll Ina l. 74. Alfr. 4. Edv. sen 2. Aethelft 24 Aetheld 9 10. Cnuti 21 22. Edv 3.25 the other terms may be rendred by Mulct of sustaining Fugitives or Out-lawes of breach of the peace forestalling departing of a Servant Tryall of a Thiefe taken within the Jurisdiction There were Parks in the Saxon times which though it be a digression I thought fit to observe this appears by the word Deorfald Deerfold and by the Doomesday where they are are called Parcisylvatici bestiarum Wood Parks of Beasts Forrests too here are as antient called Bucholt and Buchurst is the same holt and hurst both signifying a Wood. King Cnut in his Lawes o c. 77. v. manne Ferest D Sp. gloss verb. Forresta gives any man leave to hunt in his owne Woods or Fields forbidding onely to meddle with the Kings Venison in the places of freedom other Forrest lawes were after set forth by the same Cnut one of which in the thirty chap. gives leave to hunt but not so generaly it names not woods If the Saxon original were as narrow which no man now knowes yet I see not why these laws should be suspected for it as they are p 4. Inst where this chapter is thought to be a prohibition to hunt which it is not It agrees with the law before men were to avoid the kings game not wheresoever according to the word but wheresoever he will have it according to the other law gefƿiþod priviledged free What the Thane was and how he held his Lands and Lordships I will next enquire The word Thane Thegen thein thegne we finde theowan too and all these ways it is written is used sometimes indifferently in some places meerly for the kings servants meerly for a servant as in Doomesday Cola the bunter Vluiet the hunter Godwin the Falconer c. and in a Saxon Sermon q In Beda 〈…〉 382 The Queen of Seba tells Soloman blessed are thy servants theguas and theowan the Apostles are called thenes r Bede 483. yet in other places it may be observed directly and properly restrained to intended of a Thane holding Taine Land though he might in some honourable way or other serve the king too Such might he be in Bede whom as the fable speaks no bonds could hold when his brother was at Masse praying for his soule as supposing him slain in the battel with Elwin king Egfreds brother who feared to confesse that he was the kings Thegne but said he was a folelic man and again those that were with him saw by his face and carriage that he was not one of the poor folk but that he was of noble race ſ Bede l. 4. c. 22. and being questioned answered he was the Kings Thegne There is the Kings Thane the ðeoden mean or under Thane The first the Kings Baron the other the Lord of a Mannor t v. ll reg Cnuti c. 69. as a most learned Antiquary Neither were there with them the Saxons any other created titles after the Prince or Etheling honorary it seems but this of Earle and their Thanes according to the Charter of the Confessor for the Lands of St. Pauls Church there which runs thus Edward king Gret mine Bisceops and mine Forles and alle mine Thegnes ou Thau shiren wher mine Prestes in Paulus Minister habband Land u D. Seld. tit Hon. He acknowledges there were
and Leases often profectio militaris and expeditio are the same which amongst the Saxons is called here fare amongst the Germans Hereban with us and the French escuage at least that which is certaine b Glos verbo Heribannm The Charter of Bertulph King of the Mercians Anno 851. to the Monastery of Crowland grants All those abovesaid Churches Chappell 's Lands Tenements Pastures Fishings Mannors Mansions Milles Marshes free and discharged from all secular service and earthly charge c. and I free from all duty of the King and of every other Lord and man of what dignity excellency and honour soever c Concil 346. Jngulph Hist 861. King Athelwulf the West Saxon and Monarch in his grant of the tenth Mansion and of the tenth of all goods to the Church differs little from these Hee will have that tenth part to be free as the severall Copies have it and as we find it hitherto to have been from all socular servitudes and from all royal tributes the greater and the lesser or from the taxes as in Ingulphus which we call winterden as Malmesbury Witerden as Math of Westminster Witeredden who agrees with the others in this part onely he has secular services for servitude all of them make the Charter conclude contrary to the Charter of Eadbald before and let it be free c. to serve God onely without expedition repaire of Bridges and Castles which by the old law or old policy rather of the English Saxons it is said the Kings could not discharge This is therefore called the writing of the Liberty of the Churches of England This Charter worthy of everlasting memory was granted in a Generall Councell at Winchester such one as is called Pan Anglicum where were present three Kings Athelwulf the Monarch the West Saxon Beared the Mercian after driven out by the Danes and Edmund the Eastangle the Martyr slaine by those Danes Hence the most worthy Knight thinkes the rectory and the glebe to have had their beginning though faire additions from the munificence of pious patrons have been made to it since d concil 349. 352. In optona grena Vpton grene as Ingulphus St Gutlac the tutelar speciall Saint of Crowland had and bath Woods and Marshes c. in the time of King Edward free and quit from all services e Hist 909 from the time of King Etheldred was the Seat of our Abby sayes he quit and discharged from all secular services and our Abby was quit and free from all secular services in the time of that King who was the lawfull Successour of the royall blood of the English and father of the most pious King Edward f p. 911. s 30 40.50 And againe a great part of the Marshes and Meadowes of the Seat of our Monastery saies he I demised for a certain yearely rent and other services to be done g 912. The Folcland of the basest tenure amongst the Saxons as M. Lombard which passed without writing was that which now we call Copy-hold at the will of the Lord h Glos terra exscripta whose condition as also that of those who held by socage was far more servile before the Norman entrance then in some times since before the services of all these consisted in fcasance in doing after in render by payment c. as the most reverend Judge Littleton of those who hold by socage Afterward these services were changed into money by consent of the Tenants and desire of the Lord viz. into an annuall rent c. yet the name c. remaineth and in divers places the Tenants yet doe such services with their Ploughes to their Lords i L. 2 s 119. Bracton calles the Copy-holder villein sockman or sockman of base tenure k L. 2. c. 8. others tenant in villeinage servitude indeed or villeinage since Richard the seconds time is by degrees rather worne out then abolished by any law nothing now is left but the name the last man which I have knowne claimed for a villein being Crouch of Sommerset-shire in Queene Elizabeths time l Dy. 266. 283. This too is Saxon English and preceded the Normans but was never favoured by the Law m Dy. 267. lit s 193. Forost c. 42. The Saxon lawes call the villain ðeoƿ mon or man ðeoƿ and ðeoƿe indifferently a servant man or servant not that freemen were not servants too as since they are both which are visible in that Law of King Ina If a Servant man worke on Sunday by his Lords command be he free and the Lord shall pay thirty shillings for a penalty if he worke without his Lords knowledge he shall lose his hide be whipped or his hide gild the price of it but if a Freeman worke that day without his Lords command he shall lose his freedome or sixty shillings n Ll. Ina c. 3.23.46.73.50 Ll. Aelfr c. 5. In that extract of the Lands of the Monastery of Crowland taken out of the Dooms-day Book by Ingulphus the Abbot we finde in Langtoft S. Guthlac bas c. viz. five Carues eight Villains * Barders sup 81. four Bord. and twenty having soc socham habentes 5 Carucatas it should be twenty socm habentes 5 Carucatas and in Bston c. There in Dominio one Carue five villains two Bord. and seven soem with two Carues in Soudnave slound two servants six villaines three Bord. with one Sochman having three Carues c. with much more of the same o Ingulthus Savil. 908. In the yeare 1051. Thorold of Buckenbale Sheriffe of Lincolnshire likely of the the blood a descendent of the former Thorold who had Lands in Buckenhale grants the Mannor of Spalding to Wulgate Abbot of Crowland in these words I have given c. to God and St. Guthlac of Crowland c. all my Manor scituate neer the Parochial Church of the same Town with all the lands and tenements rents and services c. which I had in the same Manor c. with all the appendants viz. Colgrin my Reeve and his whole scquele with all the goods and chattels which he hath in the same town fields and marches c. also Harding the Smith and his whole sequell with all the goods and chattels which he hath in the same town c. also Leftan the carpenter and his whole sequell with all the goods and chattels c. also Ringulph the * Ringulphum primum first and his whole sequell with the goods and chattels c also Elstan the Fisher and his whole sequell with the goods and chattels c. Also Gunter Liniet c. Outy Grimkelson c. Turstan Dubbe c. Algar the black c. Edric the son of Siward c. Osmund the miller c. Besy Tuke c. Elmer of Pincebeck c. also Gouse Gamelson c. With the same clauses to them as before The conclusion is these my servants servos and their goods and chattels with all
Henry the 4 the 5 and and 6. and Edward the 4. Peace was but like the short Sun shine of a winter day overcast as soon as seen nay the reigns of some foregoing Princes as of King Stephen John and Henry the third were almost a continual civil war sometimes known under the notion of the Barons wars Then as sayes the first Statute of Westm in the Preface The estate of the realm and of the Church was ill kept the Religious of the Land many ways grieved The people otherwise intreated then they ought to be the peace lesse kept the laws lesse used and malefactors lesse punished then they ought q West 1.3 E. 1. Then the great men would not be justified have and receive Justice in the Courts of Justice r Stat. Marl v. 1. Plenty dissolution and dispersion of Monasteries c. Informers concealers multitudes of Atturnies more then are limited by law are next made causes by him s 4 Inst 76 His reasons of decrease of suits follow and are these The Statutes of 35 Eliz 3. and 21 of king James c. 2. Have given full remedies concerning Monasteries the 21 of that king c. 4. concerning informations the 4 of Hen 4. c. 18. has made provisions concerning Attornies they are to be examined by the Justices their names to be put into the Roll the good vertuous and of good name to be received and sworn well and truly to serve in their offices and specially still as the Statute not to make suit in a forreign Country The others to be put out and if any be notoriously found in default of Record or otherwise he is to forswear the Court and never after to be received The Statute 21 of king James in the 3 chap. has provided against Monopolies and new projects in the 8. against abuses in procuring of Supersedeas of the peace and good behaviour the 23 chap. against vexations delays by removing Actions out of inferiour Courts The 16. chap. appoints a limitation of Actions gives them age and death it allows in the common Action of Trespasse Quare clausum fregit where it is by negligence or involuntary to plead tender of amends the 13 chap. prevents and reforms Jeofailes the 28 ch repeals many obsolete Statutes the third of King Charles more The Petition of Right being a confirmation after other Statutes of the same kinde provides for the rights and liberties of all men for the quiet of their estates and persons t 3 Car. enough to satisfie those who are not desperately resolved the more reason they see given to take off their dislike to dislike the more But it may be feared as it is more easie to hate then to shew a cause Non amo te volusi worse then beastly wilfullnesse sometimes must be allowed and the mean and contemptible malecontents are not more guilty of this immodesty then many of the better sort and who indeed may be learned in their own Studies or Professions and therefore will conceive themselves able to judge all others not considering how ridiculous it would be to heare an old Physician censure the order of the Imperial and Swedish battels a mâ—er plain Captaine the Aphorismes of Hyppocrates a Grammarian or Pedant condemned to noise by rule the Mesolabes of Arebimedes The most Reverend Judges of the Common Law have ever been the most carefull of all men where things were intermixed out of their learning of the Laws though not out of their knowledge sometimes to call into the decision the learned of those Arts or Sciences to which they belonged That every man is to be belieued in his own art is their maxime We pray in aide saies Justice Saunders when any thing falls out in our Law concerning other Sciences and faculties This is honourable saies he and commendable in our Law by this as he goes on it appeares we despise not I may say how ever able for some of this robe whom I could name many easily match those who by their own favourers are thought to have gone furthest in generall learning other sciences then our own but allow and commend them as things worthy of commendations u Plowd com 124. v. r. 7.19 Upon this reason was Huls a Batchelor of both the Lawes sent for by the Judges in the time of King Hen. 6. to heare his Legick as t is said upon the difference of precise and causative compulsion w 7 H. 6.11 Again where an appeale was pretended for which excommunication should not disable the Judges enquired of the learned in the Canon law concerning the vigour of the appeal x â—â— H. 6.25 They use to enquire of Surgeons concerning maihem y Com. 125. â—1 H. 7.33 as Gaws dries case They ever give faith and they ought to give faith to the sentence of the Ecclesiasticall Judges still there This is the common received opinion of our bookes z r. 5. 1. p. 7 and in another place Though it be against the reason of the common law a V. 4.29 Our predecessours as the Justices Brown and Stamford in things touching Grammer have used to consult with Grammarians and to pursue their rules b Plowd com 122 127. and the books there This love of our selves is the most dishonest of all others an Empire in sciences is not often heard of some studies may imploy a long age those who will be thought so sublime that they fill all places beyond the Sunne and Heavens way sometimes may be observed to fly weakly to flag an Eridanus or perhaps the earth receives them In Gellius Favorinus a Philosopher no overweener I think much esteemed by this relator high in name and opinion out of this curiosity quarrels with the Lawes of the twelve Tables with no great good luck as he was met with he shall be my example how easie it is for him who will be at all to miscarry somewhere He had read over he saies the twelve Tables which was something his exceptions may seem the more reasonable as eagerly as Platoes ten books of Lawes One would think he was pleased wel enough with Platoes laws which he read so very eagerly yet the Athenians and Polybius justly reprove them for vain lawes which no Nation of Greece could ever be perswaded to use c Athen. l. 12. c. 22. Polyb. l. 6. The Lawes of the Tables which dislike him were these This de injuria paenienda SI INJVRIAM FAXIT ALTERI VIGINTI QVINQVE ARIS POENAE SVNTO which at three farthings the assis it was no more he saies was triviall and would deter no man from doing injuries Some things in the Lawes he supposes inconsistent as in that of the Talio SI MEMBRVM RVPIT NI CVM EO PACIT TALIO ESTO The Talio or like for like was to be unlesse he that did the mischiefe satisfied him that suffered by him and redeemed it This Talio the Philosopher thought was impossible to be just the breaking by retaliation might be
who has not heard of the father of Venice If any such there now be as well there may nature we see by these examples of the last times is no weaker then she has been of so firm memories of so happy judgements they are exceptions to my limitation and are not to be confined if they be not too delicate to adventure they may be ranked amongst those who do not invade Such men have reputation to lose which they will not hazard slightly they will consider of things and know well what it is they censure Whensoever they appear they cannot appear but as friends there can be no danger in them Haste and ignorance are onely to be feared if haste as Livie of it be improvident and blinde what can ignorance be thought to see Every man ere he gives his censure of Laws ought to read them over from the beginning to the end to look into them throughly according to that In civile est nisi tota lege perspecta una aliqua particula proposita judicare c c Leg. in Civivile st de leg upon one particle proposed the whole is not to be judged To the understanding of laws the words alone are not enough the intent of the Legislator the reason and end why they were given are to be enquired By the words of the Law is meant their propriety and signification which will not quickly nor without pains be known The intent of the Legislator is his preceptive will seldome found by the words abstractedly and nakedly but by the adjuncts the matter or circumstances This is the intrinsecal form The reason of the law is only the end moving the Legislator to make it not composing substantially the law constitutive to which the precept and will of the Legislator is to be accommodated This if not expressed in the law but devised by the interpreters is but a probable conjecture Every disadvantagious act of a drunken man by our law touching his lands or goods binds him Nay and touching his life too if he kill a man he is hanged for it f rep 4.124 Plow Com. 19. By Pittacus his law amongst the Greeks allowed by Aristotle g Polit. l. 2. c. ult if he had struck any man he was to suffer double as much as if he had done it sober Some lawlesse good fellows would thinke all this very unreasonable in a law onely intended to punish the wrong done according to the grievousnesse of the offence Since it is evident that mischiefs deliberately done as they may say perhaps with advice and malice are naturally lesse pardonable and therefore worthy of more severe punishment But as M. Plowdens report although the drunken man kill out of ignorance it helps not This ignorance was his own act and folly he might have resisted it and shall not be priviledged by it as the Court in that place of the Lord Cooke His drunkennesse is a great offence in it self and extenuates not but aggravates that which follows whatsoere colourable reasons may be given this boldnesse is rather tolerable in an Hotoman a stranger then an English man The law is the act of the whole body politique and ought to over-rule every part of it to binde every man the actual assent of every single man is not material nor does the dissent of a single man disoblige we are tyed by our forefathers their publique submission to these lawes at their free liberty and with their consent made h 25. H. 8. c. 21. their acceptance of them long since bindes us unlesse the revocation be by the same universal agreement which I believe is not like to be had As a most reverend Lord chiefe Justice strangers by living here do tacitely submit themselves to our lawes and forms of Law-making their grant and consent is involved in the consent of Parliament i ch Iust Hubard rep 271. Much more of the naturals and if all mens judgements which may be as unlike as full of diversity as their faces must be satisfied with reasons of laws long since established or to be set up it wil be impossible any old law shoud hand or any new law take Besides all publique authority to which onely the power of lawgiving belongs would lose its reverence As the Mirrour No creance no belief is to be given to the vain voice of the people The Iudges they are to obey the laws not to dispute them We have have our 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as well as the Athenians who are judges of the laws of the reasonablenesse of them and who are to see them observed King Edward the first said by a most reverend chief Justice long ago to be the wisest king that ever was k 5. E. 3. c. 14. speaks thus in a Statute where we may see what antiquity attributed to the honourable Judges of the laws The king wills that the Chancellour and the Justices of his Bench shall follow him so that be may have at all times neer him some sages of the law which be able duly to order all such matters as shall come unto the Court at all times c l 28. E. 1. c. 5. All the Justices of England and Barons of the Exchequer as the Lord Cook are assistants to the Lords in Parliament m 4 Inst 56 They were more then assistants to the Barons their Writ was for they had their Writs too Quod intersitis nobiscum cum caeteris de consilio nostro super pramissis tractaturi vestrumque consilium impensuri They were to treat with the king and his Councel and to give Counsel As Mr. Crompton they were to be demanded for the Law n Jurisd 2. Postnat 22 23. a Statute more antient then the former begins All of the Councel as well Justices as others agreed that the constitutions underwritten c o Vid. Stat. de Bgam And again It is agreed by the same Justices c p Ibid. i. 6. The Statute of Marlbridge sayes For default another day is to be assigned according to discretion of the Judges q c. 13. Marâ—b and discretion of the Justices and the Common Law are joyned 1 c. 26. ibid The Statute of Westm 2. for damages in appeals has According to the discretion of the Justices Å¿ W. 2. c. 12 in another place Whereas the Justices in the plea of Mortdancester have used to admit the answer of the tenent t c. xx the Statute 27 of Fines is according to discretion of the Justices u 27. E. 1. All the Judges of England gave their Answer to the Articles of the Clergy 3. Jacobi which the Lord Cooke calls Resolutions of the highest authority in law w 2 last 001. as upon the xx chap. of Westm 2. by that he says it is confessed That admission and allowance of the Iustices ought to be holden for Law x 2. Inst 399. In the Parliament 19 of Edward the first Sir Thomas of Weyland
great distraction in opinions Hence it is that Gentilis and Alciat require that the authorities and cases of the Doctors be weighed not numbred k Gentil l. 3. Epist Alciat l. 4. perarerg c. 17. Which is otherwise in our Law where the judgement of any man whatsoever is not of authority nor is any thing binding but the determination of Courts and the rule of judgements before Lawes are not causes of strife but the variety of senses which is put upon them we are told of a constitution of Pope Nicholas the third upon the rule of that Monster Francis of Assise in the argument ambiguous and doubtful enough yet did it never trouble the Order all Glossers and Commentators being forbidden to meddle with it l Concil Trid. 660. He that puts out the Imperial institutions sayes he has added the cases or Themes as they call them of Cornelius Vibulanus Having rejected the old as barbarous and uselesse and that he has cut off part of those Notes taken out of the Commentaries of the Doctors which are called small accessions because so he very many of them were partly wide of the marke nothing to the purpose partly absurd andridiculous Till of late there was never any glosse upon our Littleton and now that which is is made up out of the resolutions and judgements of Courts not as if Littleton needed any confirmation One of whose cases was acknowledged for Authentick by four Judge in the time of king James with this expression That they owed so great reverence to Littleton they would not suffer his case to be disputed or questioned m Mich. 21 Jac. B. C. The Civil Law hath its circumstances and exceptions the anomale before and in the contestation of the suit to the Fact of the intention of deceit fear c. temporary perpetual It s formulae or solemn forms by which let the matter of Fact be never so orderly related if either no conclusion or an unfit one be collected from it the whole libell falls Sometimes sayes a French Civilian of the Parliament of Paris a Proces is determined by contrary arrests differing from others preceding then which is pittiful this clause is added to the Text of the arrest Without drawing it to consequence or the motive I believe not alwayes is registred France sayes this Bodin again bas more laws and Customes more Proces and suits then the rest of Europe beside and more have been prosecuted in the last six score yeeres then in a thousand before which have througed in more and more as he goes on since that Charles the seventh and his successours have begun to people the realm with lawes made after the mode of Justinian with a long train of reasons against the forme of the antient Ordinances of the kings and sage Legislators he addes Where laws are few and simple rather commanding then intreating and reasoning Commonwealths have flourished to a wonder under them Whereas others with their Godes and Pandects in a few yeers have been destroyed or troubled with seditions or the mischiefs of Proces and wranglings immortal n Repul l. 1927 l 6. By the multitude of Authors and Doctors as the illustrious Viscount the law is torn in pieces the Judge astonished and the proceedings everlasting o Angm. Scient 691 We may see as this French man again enough of these suits aged one hundred yeers as that of the Earldome of Rais so well managed that the parties who made the entrance into it are all dead and the Proces yet alive Nor are the terms of the ancient laws of the Tables to us now who know not the propriety of the first Latin much more winning more graceful then ours Where they are certainly antient they will seeme as hard to the first sight as any and their sense as strange after as the sound of others As that Senates should be used for revolters reconciled reunited Fortes for good men never revolted p Tab. c. 49 Pauperies in the law Siquadrupes pauperiem fecerit c. Should signifie hurt or damage q c. 15. Proletarius a word which a Lawyer in Gellius takes to be of Grammer learning and when he was shown it in the tables is content to say he had not learned the Law of the Faunas and Aborigines a poor Roman whose rate in the publique valuation of good was 1500 Asses or one that did nothing for the publick but get children r Gel. l. 16. c. 10. Tab c. 44. A famous Grammarian being asked what those words out of the ancient Actions in jure manum conserunt sayes the tables ex jure manum consertum mean sayes he taught Grammer A way of suing they signifie which he had never heard of Å¿ v. Gell. L. xx c. 10. Godwin antiquit l. 3. c. 21. That retanda flumina in an old Edict should be rivers to be cleered of trees growing in the Channel or upon the banks and hanging over from retae such trees t Gell. 11. c. 17. This of the tables will appeare as strange as any thing QVI. SE. SI ERYT TEST ARIER LIBERI PENS VE FVERIT NI TESTIMONIVM FARIATVR IMARN BYS. INTE STABILIS QVE ESTO u Idd. 15. c. 13. A. Gellius in his ch where he asks the question upon manum consertum speaks thus of the learning of the laws and the termes I have thought fit to insert into my Commentaries whatsover I have learnd from the Lawyers and their bookes because he that lives in the midst of things and men ought not to be ignorant of the most famous words of civil actions Amongst the later terms which are proper and necessary for the sense they serve many of them would trouble much our over curious Sirs they would not willingly be brought to an acquaintance with them Such are Suitas The quality of the heir inducing a necessity of succession the definition of which has perplexed some of the Authors not a little yet no worse doubtlesse then the Haecceitas of the Metaphysicks as is confessed by them it is unheard of of old but say they in those things which by degrees are received and become of use we ought not too strictly to eye our selves to the Canons of the Grammarians Alciaet who is known to all the world often used the word superesse rebus Which is used for overseeing and managing anothers businesse more then Gellius ever knew or thought of where he blames another false and strange signification of the word which sayes he was inveterate and got strength not onely amongst the rabble but in the Courts it being ordinary to say bic illi superest for he is the Advocate of such one w l. 1. c. 22 neer the last sense Secta which is used for Reason interleverit for deleverit insidiare for insidiari infecta for corrupta honestus for dives which is a great depravation reformare for rescindere prodere for dimittere per aversionem emere which
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
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
the undoing of both of them Gentlemen of a good and ancient family commanded the Lord Chancellour to assemble all the Justices of England before him upon conference to give their resolutions Which they did one Justice disagreeing Chudleight case in the same report is said to be so difficult and of so great consequence it was thought necessary that all the Justices of England openly in the Exchequer Chamber upon solemn Arguments should show their opinions in it where the chief Baron and Justice Walmesly are dissenters as also Justice Gawdy in part Till the first of king James there were but four Judges of either Bench and many times as the same Lord Cook k 4. Rep. Pâ—af in cases of great difficulty the Judges being equally divided in opinion the matter depended long undecided for prevention of which this King added a Judge to either Bench. Retractations may be allowed in law as well as in divinity a man may differ with himselfe believe and apprehend truely and ingenuously and with Judgement this way or that way and after when he shall hear the reasons of others and the same case debated solemnly by the most grave most wise and most reverend of the profession not onely startle and doubt but but believe and like the contrary of what he liked before truly and ingenuously still without any blemish of dishonesty or falsenesse to be stuck upon him for it truth is said to be the adaequation of the speech with the species and if here any miâ—take be as there may the falsenesse is in the notions not in the man who speaks and thinkâ— he speaks truth I know no reason where there is no leading judgement to sway why the professors of the lawes should certainly be supposed to know the right and on which side it is as if infallibility were so ready or likely to be where as the Mirrour joyns them There is no law nor usage and where there are no presidents to direct Cases not being included in any words of law may be compared with the reasons of other cases according to similitude fancied and opinion so produced is but an incertain and weak knowledge thus or thus which yet may well be otherwise every man knows how far the Topic argumentation comes short of the necessary further as Sir John Davies When is right or wrong manifested upon the comencement of a suit before it is known what can be alledged and proved by either party The Councellor when he is first reteined hears onely one part of the matter and that also from his Client who ever puts his case with the best advantage for himselfe after pleading of the parties when they are at issue when they have examined witnesses in course of equity or are discended to a tryal in course of law after publication and hearing in the one cause and full evidence delivered in the other then perhaps may the Councel of either side dicern the rigt from the wrong and not before But then are the causes come to their catastrophe and the Councellours act their last part l Praef. ded f. 6 7. Thus as there are diversities of opinions amongst the professours of the lawes we see there are invincible reasons why sometimes there must be such diversities and I would gladly know where there is any general agreement of mindes A great man of the Clergy but no great lover of the laws or lawyers notes one Judge very hastily determining against others do not Councels often do the same the later quite thwarting those which went before and what he grants are not Divines divided against Divines not only in things of Ceremonie but of Faith If we look upon other Arts and Sciences we might think all things made from Heraclitus his principles that strife was the father what dissonance of opinions what knots never to be untyed sayes the incomparable Petrarch upon the discourse of discord are there amongst the Philosophers Who can number the varieties of their Sects what conflicts amongst Rhetoricians what discords of all Arts what clamours amongst the Lawyers those of the Civil Imperial lawes how well they agree the immortality of causes proves Sick men can witnesse what concord there is amongst Physicians what unlikenesse of mindes is there about things sacred and Religion where the differences are oftner tryed in the field then in the Schools m Petr. de remed utr fort 429. l. 2. By no other law is it said is unlawful maintenance Champerty or buying Titles so severely punished as by ours By what other law askes the most learned Knight is the Plaintiffe for false clamours or injust vexation or the Defendant for pleading a false Plea amerced the amercements in Magna Charta of which hereafter were instituted to deter men from injust suits and defences n 2 Inst 28 the French impost of 100 sous upon the Processe is thought injust yet sayes the Republique never was any so necessary in this Realm where there are more suits then in the rest of Europe which have sprouted chiefly from the time of Charles the sixth when by Edict the ancient custome to condemn those in costs who had lost the cause was cassed o Bod. Rep. 889. By the Saxon lawes he that denyed another his right either in bocland or folcland before a Judge without any right forfeited to the king 30s so the next time the third time the kings oâ—er hyrnysse 120. s. for his contempt p Ll. Ina c. 8. Ll. Edu sen c. 2. Ll. Cnuti c. 7. such lawes as these which might fright troublesome spirits are of high necessity yet I think where mens own Consciences restrein them not the punishment of laws would not prevaile with all men Nor can we expect any continual peace from vexatious suits nor any security from delayes deceits in them till a Christian generous honesty diffuse it self every where and there be a general perfection of charity and love in every man which is not easily to be hoped for France may be famous for its sprightlinesse Spain for its gravity Germany for the arts what clime is renowned for any such honesty Unles the new Atlantis can be found again and its Idea of a Commonwealth the Magick Region of the Moon throughly discovered and it lye hid there Or * Euphorn Barclaie may be believed of his Lusinia so unlike the whole world beside Of which that it breeds men worthy the genius of the place and of their own fortune for so he says if it be the Country some think he means he may be credited for the rest of the innocency piety of the people it is more then I can say of my own knowledge and I would lead no mans Faith where things are not plain and certain Other causes of multiplicity of suits in these latter ages are observed by the Lord Cooke to be first peace noted before * c. 2. In the reigns of the kings Edward the 3. Richard the 2
exemptions By which the Clerks were to be for ever beyond the free years of Pompey dispensed with freed from the Laws The most reverend Chief Justice Fineux in the Case of convening Clerks of which before asks the Archbishop of Canterbury who would have such offenders delivered to the Ordinary if this were granted what he would do with the parties so delivered you have no authority says he by the Law to determine matters of Felony to which no answer was given b Kell 7. H. 8.185 The Saxon founders and indowers of the most of our Churches left never-dying Monuments of their Faith and good Works The Laws of King Aethelbert the first Saxon King begin with the Church and make provisions for that c Ll Aethelbertic 1. King Jua hath Laws concerning the life of the Clergie Baptism of Infants hallowing the Sunday The Churches sceat or part very unjustly translated Church seed Sanctuaries striking in the Church d Ll Ina. c. 1.2 3 4 5. 6. v. ll Alfred c. 2.5 6 21. ll Ed. sen c 7. King Aethelstane for Tythes the teoê§e tenth e Ll. Aethelst proem So have the Kinge Edmund and Edgar f Ll. Edm. c. 2. Edg. c. 2.3 The same Aethelstane concerning Church-Burglarie g C. 5. Edmund again concerning repair of Churches h C. 5. King Cnut for the peace of God and the Church i Ll. Cnut c. 2.3 The Councel of Aenham a Lay Councel Commands that all men defend Gods servants and honour them k Ch. 30. ll Cnut c. 4. As much respect was to be given the Priest as the Thane l ibid. c 2. The head of the Mass Thegne and of the Wordly Thegne or less Thegne are valued alike m Ll. Aethelst Be Æ¿erum What priviledges the Church injoyed in its possessions may be seen by the pieces of Charters before recited and the plea of Pinnedene I will note one Law alone of the Saxons for the Churches liberty which is this aenig man heonan foƿð cyrican ne þoÆ¿ige Let no no man make the Church ser vile impose any servitude upon it n Concil Aenh c. 9. Let peace be binnaen Æ¿agum within her walis o Ibid. Magna Charta begins We have granted to God c. That the English Church be free and have all its Rights and Liberties whole c. of which the reverend Commentator says thus Ecclesiastical persons have more and greater liberties then others to set down all would take up a whole volume c p Mag. Ch. 1 Com. 3. v. 2. R. 2. c. 6. R. 2. They have this priviledge not to serve in person in War To be quit of Tolles and Customs of Average Pontage Paviage c. for their Ecclesiastical goods and if they be molested there is a Writ given for their discharge by which it appeareth says the same Commentator This was the ancient Common Law of England There is a protection with the clause Nolumus where they feared their beasts or goods or those of their Farmers might be taken by the Kings Ministers They are discharged of purveyance for their own proper goods No distress can be made in the ancient indowments of the Church by any Officers whatsoever Upon a Statute acknowledged by an Ecclesiastical person his body cannot be taken If he had not paid upon a recognisance at the day Nolevarifacias lay at the Common-Law if the person had nothing but Ecclesiastical goods c. Where a Capias lies and the Sheriff returns that the party is a Clerk beneficed having no Lay Fee no Capias should issue to take the body but a Writ to the Bishop to cause him to come and appear Otherwise had not the word Beneficed been in the Return No Ecclesiastical person is bound to appear at Tourns or views of Frank pledge The Church hath its place in the Parliament Writs Though it be last named it is the first says the Lord Coke in intention q 4. Jnst 9. The Magna Charta in the Title speaks thus For the Honour of God bealth of our soul exaltation of holy Church and amendment of the Realm The Title of the Statute of Confirmation of that and the other Charter is Know that we to the Honour of God and of Holy Church generally the Church leads r 25. E. 1. 1. E. 3. 2. E. 3. 5. E. 3. 15. E. 3. 31. E. 3. 47. E. 3. 1. R. 2. 2. R. 2. 5. R. 2. 6. R. 2. 7. R. 2. 13. R. 2. 21. R. 2. 1. H. 4. 4. H. 4. 8. H. 6. 28. H. 6. 39. H. 6. 1. E. 4. 3. E. 4. 1. R. 3. 1 H. 7. 2. H. 7. 3. H. 7. 4. H. 7. 11. H. 7. 12. H. 7. 19 H. 7. 1. H 8. 3. H 8. 4. H. 8. 5. H. 8.6 7 12 23 24 25. in Richard the thirds Parliament too Weal Common-weal Weal-publick and profit of the perple are ordinarily found in the Titles of the Statutes If we consider the Justice Equity Mercy and goodness of the Laws for the tree of Piety is known by this fruit the only scope of them being every where to relieve the poor and oppressed and to protect the innocent the Religion and Devotion of our Forefathers will plainly be visible in them as their civility and humanity are whose memories we ought to honour unless we will teach our Nephews how to neglect and sleight our selves and we cannot honour them more then by the imitation of their plain honesty and constancy it is rather Tyrannie over others then presumption to yeild nothing to all men else and to look that all men else should yield to us this we ought to do And although fortune may have too much power over virtue though nothing be got by it yet after death and corruption of the parts mortal vertue perfumes the grave it ennobles and by example sometimes refines the posterity leaves a taste of Immortality behinde it the Great mans name cannot outlive his Marble it moulders away or is plucked up with it the Good man is his own Monument he lives every where who doth not need an Epitaph Victory over our selves over our own passions private interests pride vain-glory rashness levity is the most glorious and most honest victory such a Conquerour would undo Caesar and such a true line Here lies a Good man who loved his Country and never broke the Laws makes the Stone or Brass more rich and precious then those Aegyptian Wonders which have survived their Founders who is quite forgotten and buried in them What will much content some no doubt by Magna Charta Mala tolneta all evil Tolls Customs all Praestations and Impositions for Merchandise Imported and Exported are taken away Å¿ c. 30. By the Statute of the Confirmations of the Charters the Magne Charta and that of the Forrests There is a Grant so are the words Not to take aids or Subsidies but by comman consent and for the common profit t c 5