in the multitude of counsellors there is safetic Prov. 11.14 Every purpose is established by counsell and with good advice make warre Prov. 30.18 Moses had Iethro and Aaron Ioshua the sonne of Nun his successor Caleb and Eleazar the high priest for his privie counsellors David had his succession of counsellors Samuell the prophet Ionathan whose love to him was wonderfull Abiathar the priest and Nathan also a prophet with many others To return to our owne nation king Ine had his Cinredus whom hee calls his father Hedda and Erkenwald his bishops with many others Alfred had his Plegmund Archbishop of Canterbury Werefridus Bishop of Worcester and others Athelstane edicted his lawes Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum consilio by the counsell of his Archb. and other Bishops and so successively the kings of England ever had as before their privie counsell such and so many as the prince shall think good who doe consult daily or when neede is of the weighty matters of the Realme to give therein to their prince the best advice they can The prince doth participate to them all or so many of them as he shall thinke fit such legations and messages as come from forraigne princes such letters or occurrents as be sent to himselfe or his secretaries every Counsellor hath a particular oath of faith and secrecy administred to him before hee bee admitted a privie counsellor To shew the extraordinary regard and royall use of the kings counsell The regard â— the Privie counsell Let us looke backe upon the case of 5. Hen. 4. upon an agreement for an exchange had for the Castle of Barwick between the king and the Earl of Northumberland wherein the king promised to deliver the Earle lands and tenements to the value of that Castle by these words per avise assent des estates de son Realme son Parliament c. By the advice and assent of the estates of his Realm So as the Parliament be before the feast of S. Luke or otherwise by the assent of his great Counsell and other estates of his Realme whom the king shall assemble before the said Feast in case there be no parliament before c. as by the instrument thereof dated at Lichfield 27. Aug. 5. Hen. 4. remaining in the Tower may appeare To this counsell the Oracles of the Common law the grave and reverend Judges Leges loquentes Reipublicae God grant in all Successions they may be so have had their resort from time to time in all ages for advice and directions in their proceedings aswell in criminall causes as in matters of right and propertie as it was observed by the learned Lord Chancellor I will touch but two which are cited by that honourable Judge in cases of propertie Thomas Vghtred Knight brought a Forme-don against a poore man and his wife They came and yeelded to the demandant which seemed suspicious to the Court the matter being examined judgement was stayed because it was suspicious And Thorp said that in like case of Giles Blacket it was spoken of in Parliament And faith he wee were commanded that when any like case should come we should not goe to judgement without good advice wherefore sue to the councell and as they will have â—s to doe we will and otherwise not in this case 2. Greene and Thorpe were sent by the Judges to the Kings Councell where there were twentie foure Bishops and Earls to demand their advice touching the amendment of a writ upon the Statute of 14. Ed. 3. cap. 6. which was an Act made for amending of Records defective by misprision of Clerks By the advice and assent of this Councell is that great and common Councel solemnly called The forme of the writ of Summons to the Sheriffe followeth in these words Rex viz. S. c. Quia sie avisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos Statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud Civitatem nostram W. c. teneri ordinavimus Et ibidem cum praelatis Magnatibus et Proceribus dicti Regni nostri colloquium habere et tractare Tibi c. wherein these things are worthy observation 1 That this great Court is assembled by the power of the King expressed in his writ under his great Seale with Teste meipso 2 This power is extended with the advice and assent of his Right Honourable privie councell His grace favour and providence by calling a Parliament to parlee and treat with his Lords spirituall and temporall as also with his commons who by their Knights Citizens and Burgesses as their respective proxies elected by and with the popular suffrage of the Freemen of every Countie Citie Towne or Borough do make up the body of that great court and doe there meet to yeeld and consent unto such matters as shall be there treated and established 4 The subject of a treatie or parliament That is certaine difficult and urgent occasions concerning his Majestie his royall state and the defence of his kingdome and Church This high court consisteth of two honses The higher or upper where the King and his Barony or Nobilitie spirituall and temporal do take their place And the lower house where the Knights Citizens and Burgesses are assembled for the Commons consisting when M. Crompton wrote his jurisdiction of Courts of 439. persons The King had the only power to appoint it his gracious favour is to give life and beginning to it by his owne personall accesse in most Royall state And as sinis coronal opus hee crowneth and perfecteth all the Acts of this great assembly with his Royall assent without which no bill can passe nor law be made Though there bee no written Acts of parliament extant before the raigne of Henry the third yet some have sollicitously laboured to draw the Antiquitie of this thrice excellent court of Parliament from King Arthurs time to king Ine Offa Ethelred Alfred and others before the Conquer our with a successorie continuance untill this Present age and collected and inferred that the words used by K. Inas in the proem of his laws exhortatione c. Omnium Aldermannorum mcor'um seniorum sapientum Regni mei And the like words of Offa and other kings in the time of the heptarchie and that the words of Conventus sapientum used by King Edward the sonne of Alfred the words of Conventus omnium Nobilinm sapientum used by King Athelftane cum consilio sapientum used by king Edgar Haec instituerunt Rex sapientes mentioned of King Ethelred and the like of other Kings should include the Lords and Commons of the parliament whether this most eminent Court were in those ancient dayes assembled and exercized in that manner as now it is dubium est dubitare liceat doubtfullnesse is a fluctuation of the minde which in historicall matters of indifferencie that concerne
Law no need of Oathes for the administation of Law For in the first age in a long time after the deluge there was no oath heard of In the second age of the world As there was confusion of languages So there was of all other things All things were in common Noe distinctions of Dominions Possessions Inheritances by partitions Virgil. Geo. 1 Lotts and boundaries Nesignare quidem aut partiri limite Campum Fas erat Hence Confusion bred Contention and might controlled right Nimrod then began to be a mighty one in the earth Hee was a mighty hunter before the Lord and was the first Monarch who usurped power without lawes From this confused generation God calleth Abraham and gives him this charge Get. cap. 12. v. 1.24 Get thee out of thy Countrey and from thy kindred and from thy fathers house unto a land that I will shew thee And I will blesse thee and make thy name great And thou shalt be a blessing c So Abraham departed as the Lord had spoken unto him And Lot went with him They had not long dwelt together buetheir substance increased and the land was not able to beare them As riches increased so the right of property or meum et tuum began to be narrowly pryed into and hath since begotten all civill differencies and consequently all civill lawes for discussing and deciding of differencies betweene man and man There was civill dissention betweene the heards-men of Abraham and Lot and certainely it was about their substance To redresse this growing mischeife Abraham bethinkes himselfe of a partition And to prevent a division of minde descends to a division of meanes And though Vnkle unto and elder than Lot begins to stoope first in this wise Let there he no strife I pray thee betweene thee and mee and betweene thy heards-men and my heardsmen for we are brethren is not the whole land before thee Separate thy selfe I pray thee from mee c. And Abraham gave Lot the benefit of election of the land to take either the right hand or the left hand which was an example of division of possessions and distinguishing right of property for future ages As God had promised to Abraham that His seed should be in nuÌ„ber as the starres of Heaven so did his generations increase and multiply With multiplications of families Sinnes and Iniquities were also in aboundance multiplyed All sorts of people both good and bad grew up together Force and Fraud inlarged their dominions Esau was a cunning hunter a man of the field And Iacob was a plaine man dwelling in Tents Iacob had Ioseph a good sonne And so he had his Simeon Levi who troubled him Gen. 34. instruments of cruelty in their habitations Gen. ca. 49. Ioseph had one Reuben to his brother But all the rest envied hated him and conspired against him At length Iacob and Ioseph in fullnesse of yeares die From the tribe of Levi Moses is raised and preserved in an Arke of Bulrushes from the tiranny of Pharaoh to be a Law-giver a Prophet and a cheife Ruler amongst the children of Israel Prudentissimus Legislator Iustissimus Princeps ac Propheta maximus In the meane time the Isralites doe grieviously suffer under the tirannicall oppressions and impositions of Pharaoh and Moses is sent with the assistance of Aaron to deliver them After whose miraculous deliverance by the overthrow of Pharaoh and his host in the red sea Moses and the Israelites having sung praises unto God erected an Altar in memorial of their bl ssed deliverance Moses disposeth himselfe to a setled government of the people And hee sate to judge And the people stood by Moses from the morning to the evening The first Institution and Subordination by Moses IN this course of Iudicature Moses was much â—â—combred and over-charged with variety and multitude of causes which Iethro his father in law observing doth gently admonish him in this wise The thing that thou dost doe is not good Thou wilt surely weare away both thou and this people that is with thee thou art not able to performe it of thy selfe alone And then doth Counsell him for the ease of himselfe and the people to elect subordinate officers Thou shalt provide out of all the people able men Such as feare God Exod. 18.2 men of truth hating covetous nesse And place such over them to be rulers over thousands of hundreds of fifties of tens And let them judge the people at all seasons c. In pursuit of this grave advice Moses accordingly did choose able men out of all Israel and made theÌ„ heads over the people rulers over thousands rulers over hundreds rulers over fifties rulers oftens they judged the people at all seasons the hard causes they brought unto Moses but every smal matter they judged themselves Thus Moses upon consultation with God having performed and put this holy Counsell in practice His incomprehensible Deity vouchsafed the honouring of Moses with his own presence upon Mount Sinai And therewith His immediate voice proclaimed the mora Law Containing all the grounds of Equity and Iustice and gave them unto him ingraven in two tables of stone The first promulgation of Lawes and the beginning of Legall Oathes for administration of Iustice AS Moses received them from God so in discharge of his sacred function he faithfully injoyned them unto the people And as falshood and fraud increased Soe for avoiding and discovery thereof and for true execution of Iustice Heb. 6.16 As also to put an end to strife and controversie The ministration of legall Oathes began to grow in use And not long after the receiving of the Decalogue by that great Prince and Prophet It was one of his first Lawes given in charge unto the people If a man deliver unto his neighbour an Asseâ—or an Oxe or a Sheepe or any beast to keepe And it die or be hurt or be driven away no man seing it Then shall an Oath of the Lord be betweene them both that hee hath not put his hand to his neighbours goods and the owner of it shall accept thereof c. By this it is evident that Moses from Gods mouth and by inspiration of his holy Spirit was the first personall Legislator in the world and the first distributer of Iustice by subordination of Rulers and Magistrates and the onely patterne for all succeeding Princes which moved Eusebius to say A Deo igitur Lex originem habet Et eam mortalium omnium primus Moses Hebraeis constituit Quae caeteris deinceps hominibus condendarum Legum haùd dubiò exemplar fuit The first imitation of Moses in this Kingdome by King Alfred THat Moses was a Patterne and Exemplar of making lawes and managing of them by inferior Ministers in this our ancient and famous Island of Great Britaine renowned in the constant succession and preservation of her lawes notwithstanding the permutation and change of goverment by the Conquest and rule of severall
any detriment or harme should bee as free from acting and doing any wrong for as they have idem beneficium they must have idem supplicium as the same protection in good actions so the same correction in bad It was Sherley the Frenchmans case who being in amitie and under the protection of King Philip and Queene Mary joyned and conspired with dâ—â—ers subjects of this Realme in treason against the King and Queene and the Indictment concluded contra ligeantiae suae debitum The case of Perkin Warbeck 15. H. 7. and of the Portugall adherents to Doctor Lopes in the 36. yeare of Queen Elizabeth might here bee remembered to this purpose We have seene what Legeance is 2. Branch let us consider the extent of it in its explication by this ancient Oath which I may well terme vinculum vinculi or ligamentum ligaminis That Legeanee Faith or Fealtie which is annexed by birthright is by this Oath solemnly explained attested and confirmed and is called legalis ligeantia established by the wisedome of ancient times and had its begining with the nationall laws of this Island in the time of the Brittons It is true that this oath doth not create the Legeance of a subject but doth demonstrate the fruits of faith and obedience which must ever bee concomitant with subjection For as it was gravely observed in the booke of Post-nati fo 64. Subjectio fides et obedientia must be in a true and lawfull subject of what Nation soever and cannot be severed no more than true faith and charitie in a true Christian And hee that hath these three from his nativitie is ligeus Regis the Kings Leige man Hence I inferre that ligeantia is visibilis and invisibilis visible as to subjection and obedience and invisible as to fidelitie and loyaltie this must bee rooted in the heart the other expressed in the action A man may bee a sâ—â—â—ect borne and actuate an externall obedience yet Cordi nulla sides hee may be disloyall in the heart Therefore the sacred Scripture inhibits the very thoughs of a man against Kings and Princes the Anointed of God Nolite tangere unctos meos he doth not say ne tangite but nolite have not so much as a will to touch mine anointed In cogitatione tua Regiâ—e detrahas deprave not the King even in thy thoughts Many more precepts might I here instance To prevent the misâ—â—ivous events of disloyall imaginations and to confirme the Legeance of the heart and to discover agnes haedis the good from the bad subject the prudent policie of pristine ages invented formes of oathes in most Kingdomes as may be problably conceived In this Island of great Britaine this oath of Legeance was first invented by King Arthur At which time the Leet was called Folkemote viz. a meeting of the people and this appellation is retained in London to this day Amongst the Lawes of King Edward the second before the Conquest it is thus exprest Omnes Principes Comites Proceres Milites liberi homines debent jurare c. in Folkemote fimiliter ownes Proceres Regni Milites liberi homines universi totius Regni Britanniae facere debent in pleno Folkemote fidelitatem Domino Regi c. Hanc legem invenit Arthurus qui quondam fuit inclitissimus Rex Britonum c. Hujus legis authoritate expulit Arthurus Rex Sacacenos inimicos à Regno c. And by that meanes hee did settle and co-unite his whole Kingdome together Ita consolidavit confideravit Regnum Britaniae universum super in unum It is therefore said that Lex ista diu sopita fuit sepulta donec Edgarus Rex Anglorum illam excitavit erexit in lucem illam per totum Regnum firmiter observari pracepit This law was laid in a slumber and forgotten untill King Edgar who is stiled Rex pacificus did revive and bring it to light and commanded a strict observation thereof throughout his Kingdome For during the Heptarchie and untill King Alfred had made the way for setling of a Monarchicall government it could not well take place this oath afterwards greâ— so usefull and advantagious for the absolute goveâ—ment of this Island as that all the Danes who were dispersed in their abode amongst the English and refused to submit to this oath were all upon the Feast of S. Brice put to the sword by the politike directions of King Ethelred and his Councell Hujus legit authoritate Eâ—helreduâ— Rox subâ—to uno codemâ— diâ— per universum Regnum Danos occidit For the same end and purpose as is herein before remembred was that oath of Allegeance justly conceived in the high court of Parliament holden An. tertio Iacobi upon the occasion of that horrid and dreadfull Gunpowder treason as our late learned Soveraign in his monitorie preface to all Christian Princes prefixed to his Apologie for this oath doth averte Horrenda illa prodigiosa conjuratio quae per tormentarii pulveris impetum destinabatur de cujus immanitate nulla unquam aetas conticescat That most horrid and prodigious Gunpowder conspiracie whereof no age will ever be silent And further saith his Majestie in that Apologie Nec in alium finem constitutum est juramentum quam ut inter fideles subditos perfidos proditores discrimen aliquod extaret That this oath of Allegeance was constituted to no other end but to put a difference betweene faithfull subjects and perfidious traitors This later is inlarged in the occasionall particulars but the generall scope thereof is tacitly and implicitly comprised in that other ancient and well digested oath this maine difference stands between them the former oath is confined as topersons time and place the later hath its extention to all persons without any exception There is the like oath used in the civill or Imperiall law called juramentum ligei one of the old another of a new invention cited Lib 3. Summae Hostiensis fo 773. and thus begins Ego T. juro super sancta Dei Evangelia quod ab hac hora ero fidelis contra omnem hominem c. The Civilians distinguish two sorts of oaths Iudiciall and Extrajudiciall And their oath of juramentum ligei vel fidelitatis they ranke in the number of extrajudiciall oathes But our ancient oath of Legeance is and well may bee accounted in the judiciall number and my reason is whatsoever oath is administred in a Court of Record as the Leet and before a judge of Record as the Steward is and according to the prescript forme of our common Law is judiciall whatsoever oath is administred praeter legem and not according to the precise rule of Law is extrajudiciall This oath is not so administred but juxta legem normam legis and therefore is not extrajudiciall But why doe I endeavour to light a candle at noone or to explaine that which is plaine enough in it selfe 1 First for the time it is indefinite
De â—odoâ—reddendi according to the true meaning of this ancient oath of Legeance is the difficult question S. Pet. 1.6 2. v. 13. giveth this monition Submit your selves to every ordinance of man for the Lords sake whether is be to the King as supreme vers 14. or unto governours as unto them that are sent by him c. Though by the rule of S. Paul the substance of every princes power is the ordinance of God yet the specification of the circumstances thereto belonging as in regard of places persons Jurisdiction subordination and the rest is an humane ordinance introduced by custome or positive law Hence I will deduce this generall position That all subjects are bound by dutie and legeance to their princes to render to them civill obedience and their dues and duties according to the laws and customes of that kingdome wherein they live then by consequence the subjects of great Britain to their gracious Soveraign according to the Lawes and customes of our Nation To capitulate here all the casuall dues and duties annexed to his prerogative as forfeitures escheates confiscations or such like or wardships mariages primer seisin and many more at large recited and declared by the statute intituled Prarogativa Regis published in the 17 yeare of Ed. 2. Or to make particular rehersall of other ordinary dues as customes aide and such like were cleerly out of the scope of my intention But faithfully to deliver by what ways and means the king may require any extraordinarie aid and supply out of each subjects particular estate or terrene honour hic labor hoc opus est Some not well affected to the constant government of this kingdome The payments of dues and duties most proper by Parliamentary gift would have the kings necessities supplyed by impositions and taxes to bee raised and levied by the kings meer and absolute power without any commitiall consent of peeres and commons others more orthodox if I may so terme it to the happinesse of his Majestie and tranquillitie of the State doe hold and so it hath been declared by ancient modern parliaments that a parliamentarie gift subsidie or supply bee it of what name soever from the subject to the King is most proper and competible with the ancient rule and government of our kingdome The very name of parliament is sacrum quoddam and the nature of it most sublime and so long as the members are in unitie with the head most absolute and illimited The kingdome of England is a most ancient Monarchie under the rule and government of a Supreme Leige Soveraign conform and according to the peculiar lawes and customes of the nation confirmed by severall Parliaments and whereas all other nations as Bracton faith Lib. 1. Cap. 1. were governed by written lawes Sola Anglia usa est in suis finibus jure non scripto consuetudine in en quidem ex non seripto jus venit quod usus comprobavit Sed absurdum non erit leges Anglicanas licet non scriptas leges appellare cum legis vigorem habeat quicquid de consilio consensu magnatum reipublicae communi sponsione authoritate Regis sive principis praecadente juctè fuerit definitum approbatum England only is ruled by a law not written and by custom which by usage hath beene approved and it were absurd because not written not to call them lawes inasmuch as whatsoever by the counsell and consent of the Peers and commons and by the kings royall authoritie shall bee determined and allowed hath the power and vertue of a law Herein we may observe an authentike description of a parliament I cannot passe by the word Quicquid there is some remarkable energie in the generalitie of it that must not goe without a Quisquid Some would have religion and Ecclesiastike persons and do not stick to murmur loudly of it exempt from all parliament power All persons causes subject to Parliament but our Author who wrote in the later time of Hen. 2. well nigh 380 years agone not long after King Iohn had coactedly delivered over his royall Crowne into the hands of the Popes Legat and thereby admitted papall incroachments of jurisdiction in this kingdome although with the common errors of those times he seemed to advance pontisiciall power in Ecclesiasticall causes here cui scil Papae alioqui invictissimi etiam Imperatores Reges cesserunt as it is said in the prologue to Bracton yet he brings all jurisdictions and matters whatsoever with his Quicquid within the cognizance and power of parliament A parliament is the supremest Court of Justice in this kingdome Parliament the supremest court of justice an assembly of the King the Lords and peeres and the Commons of the Realme The word Parliament is a French word and signifies originally as much as colloquium a conference or treatie betweene the King and his Subjects Iâ—â—is great Court the kings of England have ever had authoritatem praecedentem as Bracton notes before aswell in regard of their naturall persons having supremacy and preeminent precedencie over and above all persons as of their politike capacitie and have the sole and only power to call and convene parliaments and to do all other kingly offices And they had and ever have potectatem subsequentem a power to ratifie and confirme such acts and lawes and Statutes whatsoever as are treated and agreed upon by the peeres and commons The king as learned Cambden observes and hath it from Bracton supremam potestatem merum imperium apud nos habet nec in imperii clientela est nec in vestituram ab alio quovis accipit nee prater Deum superiorem agnoscit In short the king is supreme over and above all persons and owneth no superiour but God The parliament is called by writs of summons directed to each peere of the land The calling of the parliament and by writs of summons directed to the Sheriffes of each severall countie And it is called by the advice and consent of the kings councell but note the king of England is armed with divers Councels One which is necessarieto be explained called Commune Concilium in all writs and proceedings and that is the high Court of parliament A second which is grande or magnum concilium which is sometime applyed to the upper house of parliament sometimes out of parliament to the peeres of the realme Lords of parliament Thirdly he hath his legale concilium his judges of the law for law matters The Fourth and last and not the least is the kings privatum concilium his privie Councellors of State The king hath as all the kings of England ever had his sacros and secretos consiliarios his sacred guard of privie Councellors Majorum et sapientissimorum è regno Amongst whom he fitteth in person and moderates their consultations in imitation of the precepts and presidents recorded in holy Scripture Where no counsell is the people fall but
was presented by the Peeres and Commons unto his Majestie in their petition of right concerning diverse rights and liberties of the Subjects before mentioned which had bin intrenched upon touching their lives persons and estates Whereupon his Majesty did fully freely and graciously confirme in all points their said petition of â—gnt with Soit Droit fait come est desire And I daâ—e boldly say His Royall goodnesse hath beene of himselfe most vigilantly carefull and tender to observe it It is said before that the Law is the Guardian of liberty The Law must bee under wardship too Who be the Law Wardens who then be the Law-Wardens The King originally is intrusted under God with the custody of the Lawes under him the learned and Reverend Iudges are interessed in the Curator-ship of the Lawes and in them of the lives liberties and estates of the whole kingdome And at their first investiture into their places they take a solemne oath incident to their great offices By that oath they ingage themselves as fe-offees in trust to Minister true right betweene King and people and to execute Iustice to the people according to the Lawes of the Land and thereby and by receiving the weighty trust from and under him for the custody of that inestimable Iewell the Lawes they are to acquit the King of so much of his oath I cannot here forget some old verses Realmes have rules and Rulers have a syse Which if they keep not doubtlesse say I dare That eithers greefes the other shall agrise Till the one be lost the other brought to care I will not Comment upon them they were written upon a Subject of 240. yeares a gone and a bad sample thereof hath hâ—pned in our times Lawes are the syse of rule and government By which the opinions and judgements of our twelve Iustitiars must bee weighed and guided they are the Subjects birth-right and inheritance They are the golden ring by which the King at his Coronation is politically espowsed to the Common-Weale and have bin enameld with the bloud of many Millions and Myriads of soules Woe be therefore unto them that have been are or shall be the violaters and betrayers of that sacred trust What must they be that will render themselves guilty of so haynous a crime Surely none of Iethro his Counsellors Not men of courage nor fearing God nor loving Truth nor hating Covetousnesse They must be in their conditions Tyrants haters of Law for having once broken the lore of Law they feare to be tryed by the plumb-line of the Law And then followes Quod timent oderunt quod oderunt destrui irritum omniò esse volunt what they feare they hate and what they hate they would utterly destroy Oderunt impij omnia Disciplina vincula legem â—yrannum esse judicant Moller in Psa 139. The wicked hate all bonds of Discipline and condemne the Law to be a Tyrant But their guerdon is Qui peccant contra legem lege plectentur Offenders or Subverters of the Law shall have their demerited punishment by the Law It is said of sacrilegious Church-robbers Frustra petunt auxi lium Ecclesiae c. They are excluded all benefit of Clergie that sinne against the Church The Law is the Temple or Sanctuary whether the Subject is to runne for shelter and refuge M. Saint Iohâ—s speech fol. 4â— If the Wardens of this Temple desert their Office and abjure the Sanctuary Let them expect nor fuge thither nor other but the Law to bee testem jud cem Satellitem their witnesse their Iudge their executioner And their I leave them So much for Law THe other prop or Piller of Protection is Armes Armes whereof I have sufficiently spoken before for so much as concerne the Subjects duty and legeance And for that which concernes his Majesty It is so generally knowne That I shall need to give but a touch By the Common-Law of the Kingdome No man was chargeable to arme himselfe otherwise than hee was wont in the time of the Kings progenitors S. Edw. 1. And no man was compellable to go out of the Shire but where necessity required and sudden comming of strange enemies into the Realme And then it should be done as had been used in times past for defence of the Realme Likewise the preparing men of Armes and conveying them unto the King into forreigne parts was meerely to bee at the Kings charge And howsoever in the time of Edw. 1. certaine Commissioners did incroach upon the Commons and compelled the shires to pay wages to the Preparers Conveyers and Souldiers whereby the Commons had bin at great charge and much impoverished The King did will that it should be so done no more Stat. 1. Edw. 3. cap. 5.7.1327 And 18. Edw. 3. Cap 7. It is provided That men of Armes Halberts and Archers chosen to goe in the Kings Service out of England shall be at the Kings wages from the day that they depart out of the County where they were chosen till they returne Those Statutes are but affirmations or the Common Law and are utterly destructive to the late impositions of Coate and Conduct money and such like levies in that kinde as are not warranted by common assent in Parliament By both these S. Lawes and Armes the peace and unitie of those two deare sisters the Church and Common weale are strengthened and upheld And in both these the Prince hath power of direction to make and establish lawes to raise and levie Wars and power to command the execution and expedition of them Neither of these are acted without Counsell frustra leges frustra sunt arma nisi sit consilium And it is a true rule Sanissimum consilium non fine concilio the best Counsell is from a Councel or Assembly of Counsellors And therefore the King as you heard before is attended with his Privie Councell which is a body politike unum è pluribus const tutum and no body without a head for as Forrescue fol. 30. saith Quandocunque ex pluribus coâ—st tuitur unum inter illa unum erit regens alia erunt recta This body politike whereof the King is head the autiquity and use wheâ—of I have sufficiently before remonstrated is at ended with two great Nuncioes Angelis è Caelo Iustice and Mercy They are ornamenta coronae The prâ—tious Diadems of the Kings Crowne they are columnae Majestatis the two maine supperâ—ers of regall dâ—gnity By the one S. His Iustice he hath potestatem praeveniendi and subveniendi a power by making of Lawes sending forth his Edicts and Proclamations of preventing all capitall and criminall offences all homicides rapines oppressions injuries rebellions mutinies and all greevances whatsoever either of force or frand and either against the person or estare of His Majesties Subjects And if prevention be not availeable â—â—in naturall so in Civill diseases it sometimes failes Then must his power of subveniendi be administred and that by 〈…〉 execution
question Have you not read that David being hungry entred into the House of God and did eate the shew-bread which was not lawfull for him nor any with him but only the Priests Or have you not read in the Law how on the Sabbath day the Priests in the Temple breake the Sabbath Sabbatum violant sine crimine sunt and are blamelesso And then he doth absolutely convict them of ignorance If yee knew what this is I will have mercy and not sacrifice yee would not have condemned the innocents Matth. 12. ver 1. Vsque 8. If the Law of God by the mouth and judgment of his blessed Sonne was dispensable No man can deny but humane lawes which are transitory may admit a qualification Or else our Gratious Salomon cannot according to the third branch of his oath doe equity and right Iustice with discretion and mercy Observe the rule of the Common Law in this point Dispensatio mali prohibiti est de jure Domine Regi concessa propter impossibilitatem praevidendi de omnibus particularibus Et dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata Co. 11.88 No greater argument of supreme and uncontrollable Majesty than a dispensatory power for when the Common Councell of the Kingdome have enacted penall Lawes for prohibiting somethings to bee done which are evill per accidens The KING by his owne Princely power alone may either in regard of persons or times or other necessarie conting encies dispence therewith PROTECTION as it is grande opus so it hath grave onus a great Balke a lâ—rgel arthen The oâ—-stretched and puissant Aimes of this Protâ—ction 1. By Lawes 2. By Armes Are not supported and maintained without inexpressibie charge In the first S. Lawes observe in the maintenance and execution thereof the â—â—â—ries and wages of the great and reverend Iudges the fees stipends and allowances of other Ministers and Officers of Iustice his Majesties extraordinary great experce in sending abroad and dispersing his Edicts and Proclamations in all the quarters and corners of the kingdome In the second S. Armes observe no lesse if not sarre more in the reparations and constant maintenance and supply of His Royall Navie of His Ordinance Artilerie and all other munition And his assiduous preparation in the time of Perce against the occasion or expectation of Warres And all must be according to the Prayers of our own Church to maintaine the People in wealth peace and godlinesse But that wee may returne with the greater thankfulnesse to GOD Let us look back and there are not many quarters of yeares since this great worke of Protection was invaded the union of two Ancient Kingdomes disturbed The Subject with jealousies distracted the former Valour of our English hearts blounted and amated our Liberties in a desperate jeopardy of bondage And which is worst Quis talia fando Myrmidonum Dolopumve aut duri miles Vlyssis Virg 〈◊〉 l. 3. Temperet a lachrimis What flinty heart can forbeare from teares A sweet mild mercifull KING in his studious vigilancy for quenching of these flames most sensibly perplexed and indeed brought into a great strait that hee had just cause to invocate the Mercy Seate of Heaven in the language of the Kingly Prophet Angustia est mihi valde I am in a great strait 2 Sam. 24. v. 14. He was so indeed and like Ionathan and his Armour-bearer between two sharp rocks Bozez and Sench the fore-front of the one was situate North-ward the other South-ward 1 Sam. 14. v. 45. What was the cause of all these miserable tumults and turmoyles Truly our blessed Soveraigne unhappily fell upon those times wherein David complains of the Iudges Magistrates and Ministers under his subjection Psal 82. v. 1. c. God standeth in the congregation of Princes He is a Iudge amongst Gods ver 2. How long will yee give wrong judgment and accept the persons of the ungedly David by mentioning Gods pretence in the aomen ill ration of judgments endeavouring to 〈◊〉 be a tenor in their hearts adds that sharp increpaâ—â—â—n v. 2. â—sque quo judic at is iniquitâ—em c. â—o give 〈◊〉 judgment is in pronouncing of Law not to observe an equality or rule prescribed by the lawes but to give sentence pro arbitrio suo after their own will fancy and passion for no other cause but so they would have it whence that vox tyrannica that proverb sprung up Sic volo sic jubeo stat pro ratione voluntas Our will is our reason and our will â—hall command After this severe objurgation the Prophet declareth the true use and end of upright judgement Defend the poore and fatherlesse See that such as be in need and necessity have right v. 3. Deliver the outcast and pcore save them from the hand of the ungodly v. 4. And then despairing of their reformation he doth amplifie his reprehen sions against them They will not bee learned nor understand but walk on still in darknesse All the foundations of the earth are out of course ver 5. It was so in Davids kingdome and no lesse in King Charles His Great Britaine David invocated God for redresse Exurge Deus judica terram Arise O Lord and judge thou the earth v. 8. And so did King Charles God heard the prayers and humble supplications both of King and People For in ictu oculi when all conditions of this State in the out ward survey of humane judgment were most desperate and deplorable Moventur omnia fundamenta terrae Psalme 74.22 God did arise and plead or maintaine his owne cause Our gratious Iosuah by the dictates of the holy Spirit did summon his Elders called his Common-Councill or Great Congregation together â—ove 1640. to treat of the difficult and urgent affaires concerning his Majesty the State and defence of his Kingdome and the Church of England The like in his Realmes of Scotland and Ireland They have all happily and religiously met in their severall orbes the Civill and unnaturall breaches of the two disjoynted kingdomes are unanimously pacified and both more firmely reunited than ever before The issues and fruits of the Counsels and consultations of our Parliament have far sarpassed the presidents of all former ages Let the Acts Ordinances and proceedings themselves be Iudges And pray we incessantly to the throne of Heaven that God will be still present and president in the maturating of all their debates and deliberations concerning Church and State And in al such times when King Church and people are in a strait That God would arise exurgat Deus dissipentur inimici Amen Amen Amen FINIS
A TREATISE OF The Antiquity Authority Vses And Jurisdiction of the Ancient Courts of LEET or view of Franck-Pledge and of Subordination of Government derived from the Institution of MOSES the first Legislator And the first imitation of him in this ISLAND OF Great BRITAINE by KING Alfred and continued ever since Together with Additions and alterations of the Moderne Lawes and STATUTES inquirable at those COURTS untill this present Yeare 1641. With a large Explication of the old OATH of Allegeance Annexed LONDON Printed by R. B. and are to be sold by G. Badger at the Kings Head in St. Pauls Church-Yard 1641. TO The Right Honourable the Knights Citizens and Burgesses Assembled in the Commons House of PARLIAMENT And in that Numerous Assembly to the Worthy SPEAKER His much Honoured IOHN SELDEN ESQUIER with the rest of the Learned long ROBE THis Treatise of the most Ancient Court Leets Right Honourable containes in it the severall Crimes and Offences there inquirable as well by the Common Law as by diverse Statutes whereof many of this great Congregation had a Vote and interest in the making Jt hath bin the work of many intercisive houres and had a whole winter-Age under the over-sight of a Iudge Sir Edward Coke famous in his time somtimes an Honourable member of former Parliaments How it was entertained by him and with what benediction it returned to the Author from him is well knowne to a Gentleman yet living his then Amanuensis Since it pleased his late Majesties Attorney generall upon a reference to him from his Sacred Majesty dated December 1634. Tho. Tesdall Esquier to recommend the examination of this worke and the Statutes therein cited to an able Counsellor of Grayes-Inne who after a deliberate perusall and consideration had of it did at the end thereof Certifie his opinion in these words I have seriously perused this Tract concerning Court Leets 13. Iuly 1636. and finde it to bee compiled with much care and diligence And I conceive generally well composed and usefull to bee published Not long after this the Decree of the Star-Chamber intervening for limitation of the Presse upon some strict termes This little Creature had the happinesse to be reserved for these long lookt for times The motive inducing the publishing of it is a three-fold engagement of the Author 1. Debitum reipublicae a debt due from him to the Common-wealth for expiation of the many lost and mispent houres of pretious time 2. Jt is debitum professionis a debt of his calling or profession wherin every man is but a Steward and must render an accompt Hee must not reponere talentum in sudario but so order and improve it that hee may be enabled to cast if not a Talent yet a Mite into the Common Treasury 3. * In Vita Aturedi It is debitum promissionis in praelo a debt of Promise and that in the Presse All legall promises especially those which are publikely attested are inviolably to be observed Now the end of publishing it is for the common good For sithenoe the Leet is justly termed schola insigniendi juvenes It is very necessary that the sonnes and servants of Farmers Yeomen and others versed in rurall affaires should bee disciplined in the Lawes under the government whereof they live and have their protection And for their better instruction J have in the rehearsall of the severall Statutes declared the paines and penalties for the benefit of persons who have not Statutes at large or abridgements Reverend Master Crompton in the Dedication of his Iustice of Peace affirmeth that hee thought fit to set downe the penalties and punishments due to every offence mentioned in the charge contained in that booke in pursuance of the Order and method prosecuted by the Honourable Sir Anthony Fitzharbert in his treatise of that Subject and in imitation of the usage and custom of the Iustices of Assize in their Circuits deeming it necessary to informe the people as well of the punishment as of the offence And if parvis fas sit componere magna I have presumed to take my patterne thence that offenders may know the proportion of their paine as well as the quality of their crime And now right honourable this treatise together with the other annexed the Author doth most submissively present unto this thrice Honourable Assembly humbly imploring the vouchsafement of Your Honourable Licence and safe Conduct for those innocent Twinnes to passe cheerefully into the world That they may be disposed and imployed to that end for which they were compiled as Your Honours shall thinke fit The God of all Counsell and Consolation be present and President in all your religious Counsells and Consultations and multiply his blessings upon this whole body as well in all your publike as private affaires For which the Author will never cease incessantly to pray Rob. Powell The Table of the severall Sections in the first part of this Treatise THe Preface or Introduction touching the occasion and Originall of Lawes The first Institution of subordination by Moses The first promulgation of Lawes and the beginning of legall oathes for administration of Iustice The first imitation of Moses in this Kingdome by King Alfred The first division of this kingdome by King Alfred into Counties Hundreds and Tythings The appointment of Officers and making Lawes for the better ordering of the Kingdome The Statutes concerning the approvement of Wastes-Woods c. and other Lawes derived from the Law of Alfred cited by Mr. Cambden The manner of proceeding by Iuries in those subordinate Courts of Counties Hundreds c. All subordinate Iustice derived from the King and Crowne The most principall uses of Court Leet stand upon three points The oath of Legeance ministred at those meetings first instituted by King Arthur Three things considerable in the keeping of Tournes and Leets 1. Time 2. Place 3. Persons To answer an objection for the time that all Leets are not kept infra mensem after Easter and Michaelmas In what cases and by what meanes a Leet or franchise may be seised or forfeited or the Lord damnified A direction for Lords in choosing their Stewards The properties and qualities which a Steward ought to have The authority of a Steward in Leets A Stewards power to impose a reasonable fyne And such fyne is not afferable nor traversable The remedies for recovery of fynes and amerciaments in a Leet Certaine cautions in the taking of distresses The last act or period of proceedings in a Court Leet is Afferement The ministeriall part of a Court Leet in the levying of fynes and amerciaments assessed A speciall caution for Lords of Leets against the farming out of their perquisites THE Antiquity Authority Vses and Iurisdiction of Court Leets or view of Franck pledge c. The Preface or Introduction touching the occasion and originall of Lawes WHilst man stood in the state of Innocency There was no sinne and so no need of any written or positive
nations may manifestly appeare by that which followes King Alfred who began to raigne in this Island Anno Christi 872. the best lettered Prince that was in those times began his lawes with Loquutus est Dominus ad Mosem hos sermones dicens Ego sum Dominus Deus tuus c. And so recites the 10. Commandements given by Almighty God upon Mount Sinai And then proceeds with the most materiall lawes mentioned in the 21.22 and 23 Chap. of Exodus which hee thought to be most apt and competible for the government of his kingdome closing it up with Haec easunt jura quae rerum omnium praepotens Deus ipse Mosi custodienda proposuit c. And then concludes with Has ego Aluredus Rex Sanctiones in unum collegi aâ—que easdem literis mandavi Quarum bonam certe partem Majores nostri religiosè coluerunt Multa etiam mihi digna v. dentur quae a nobis hac etiam aetate pari religione obscrventur Nonnullatamen torum ex consulto Patrum partim antiquanda partim renovanda curavimus c. I King Alfred have collected these lawes into one body and have caused them to be written whereof truly a good part our Ancestors did religiously regard or obey And many of them doe seeme worthy unto mee That they should be with the like religion in this age or time observed yet some of them by the advice of our grave men our Fathers wee have taken care partly to antiquate and partly to revive or renew Which in the language of succeeding times was as much as if he had said Some of them by the advice of our Parliament wee have thought good partly to repeale and partly to coptinue After this the good young King doubtlesse Non sine consulto Patrum doth proceed and culles out and confirmes certaine lawes and sanctions of King Inas Offa the King of the Mercians and Ethelbert the first King that ever received Baptisme here in England The first division of this kingdome by Alfred into Counties Hundreds and Tythings THis blessed Prince the division of his kingdome being confounded by meanes of the then late distracted Heptarchy having made league with Guthrunus the Dane and thereby possessed himselfe of the entierty of the Realme and being sole Monarch thereof did in imitation of Iethro his Counsell to Moses subdivide and distribute the government of the land into severall partes And did first reduce it into Satrapias which we now cal shires or Counties Centurias now called hundreds Decurias now lalled tythings which at that time in the infancy of of this sub rdination consisted only often men But in succeeding ages grew more populous and are not confined in number of persons though it still retaine the same appellation Of those ten persons proscribed to their decurie or tythings Every one was to be a fidejussor or pledge one for another And if any one received losse the rest were to make recompence for it Hence it was that nine of them were called ingenui fidejussores which we in the title of our Leets call Franciplegii And the Tenth was called Decurio which continues in the west-terne parts by the name of tething man in other places called vadem primarium et praecipium in Kent called Borsholder that is to say a cheife pledge in Yorkshire called Tenteutale The appointment of Officers and making Lawes for the better ordering of the Kingdome THis mirrour of Princes having thus ordered his Kingdome did set over every Shire a Senator and a Greve which the Normans afterwards called Comes and Vicecomes and our later ages an Earle and Sheriffe Over every Century an officer called a Constable and every Decury a chiefe pledge or tethingman And did decree that every man of free condition liber homo should bee of a certaine Handred or Tything out of which hee was not to remove without securitie After hee had thus ordained a law for the locall setling of his Subjects that they might bee knowne and called to account by the certaintie of their abode upon all occasions of suspicion or accusation for any crime or misdemeanour Then he provided good and wholesome lawes for the better avoiding of rapines thefts murthers or any crimes whatsoever as also for the securing of the persons and estates of his Subjects and for the better rule and governement of them in the place of their resiance amongst which I finde one Law cited by that noble and ever memorable Antiquarie Cambd. 〈◊〉 fo 57. Quod si quis delicti alicujus insimularetur statim ex centuria decima exhiberet qui eum vadarenturâ— Sin istiusmodi vadem non repereret legum severitatem horreret Si quis verò reus ante vadationem velpost transfugeret Omnes ex Centuria decima Regis mulctam incurrerent If a man were accused of any offence hee should presently out of the Hundred and tything tender such as should be pledges or baile for him but if hee could not finde such baile hee should then dread the severity of the Law which I conceive to be according to the moderne law Imprisonment But if any person accused either before pledges or after should flye away all the men and inhabitants of the tything and hundred should incur the Kings mulct that is be amerced to be in misericordiam Regis at the Kings mercy The fruit and effect of this law is worth observation what good redounded to the Common weale in those times For saith the Author Hoc commento pacem infudit provinciae ut per publicos aggeres ubi semitae per quadrivium finduntur armillas aureas juberet suspendi Quae viantium aviditatem rideret dum non esset qui eas abriperet By this devise he made such peace in the whole Country that he caused certaine golden bracelets to be hanged upon publike batches or hillocks at every crosse way which might as it were deride the aviditie of passengers sithence there were none that durst take them away It is no doubt but this Law or Ordinance doth not only in part retaine a vigor and being at the common Law but hath given light to many statutes to win force of great consequence As to that of the Statute of Winton 23 Adward 1. inquirable at Leets by which it was enacted That cries should be solemnly made in all Counties Hundreds Markets Faires and all other places where great resort of people is so that none should excuse himselfe of ignorance that from thence forth every country be so well kept that immediately upon such robberies and felonies committed fresh suite be made from towne to towne and from countrey to countrey c. And after that the felony or robberie be done the countrey shall have no longer space than fortie dayes within which it shall behoove them to agree for the robberie or offence or else that they will ans wer for the bodies of the offenders But albeit the Statute be generall and no mention made
whether the robberie bee committed in the day time or in the night Co. lib. r fo 6. Ashpoles Case the Hundred shall not be liable but where the robberie or felonie is committed in the day time yet if diverse doe commit a robberie those of the Hundred ought to apprehend all the felons for though they apprehend some of them yet that will not suffice to excuse them unlesse they apprehend all of them by that Statute of 13. Edw. 1. But now it is qualified in that point by the Statute of 27. Eliz. cap. 13. By which if any of the Inhabitants of any towne village or hamlet next to the place where the robberie was done do in their pursuite apprehend any of the offenders that shall excuse them though all bee not taken The Statutes concerning the approvement of wastes woods c. and other Lawes derived from the Law of Alfred cited by M. Cambden FRom that Law of King Alfred the Statute of 13. Edw. 1. cap. 46. concerning approvements of Wastes Woods and Pastures may seeme to borrow its light whereby it is provided that if any having right to approve do levie a Dike or an Hedge and some by night or at any other season when they suppose not to be espied doe overthrow the Hedge or Dike and men of the townes neere will not indict such as be guiltie of the fact The townes neere adjoyning shall bee distrained to levie the Dike or Hedge at their owne costs and to yeeld dammages At the Common Law if one be slaine in any towne in the day time so long as it is plaine day light and the man-killer doth escape the town where the Felonie was committed shall bee amerced for it Dum quis felonicè occisus fuit per diem nisi felo captus fuit tota villata illa oneretur This I thought pertinent to my present discourse to parallell that ancient Law of Omnes ex centuria decima Regis mulctam incurrerent with our latter Lawes whereby towneships are onerable upon the escape or not apprehending of offenders in certaine cases Besides that good and profitable Law amongst many others that gracious Prince did further decree that the Decurio or Tything man might judge of small matters and the Centurio or Constable of greater matters and at the fiequent meetings in every Satrapie or Shire now called Countie Courts the Senator or Greve was to heare and determine matters of greatest difficultie and moment King Edward sen succeeded who made a law De diebus cogendi populi Edw. sen An. 900 Lamb. fo 51. that every Greve Praepositus quisque should every moneth call the people together doe every man right and decide all controversies which confirmed the use of the Countie Court King Edgar made a law De Comitiis Centuriae Comitiis quilibet interesto That is to say Edgar Anno 599. let every man be present at the Leets or meetings of Hundreds but out of every shire let there be a more famous meeting twice a yeare Celeberrimus autem bis quotannis Conventus agitor and this is now the Sheriffes turne This King did farther decree Lamb. fo 80. that each person should finde pledges who might bring him forth to render every man his owne Quisque fidejussores qui eum jus suum cuique tribuere quam paratissimum praestent adhibeto The manner of proceeding by Juries in those subordinate Courts of Counties Hundreds c. NOw the manner of proceeding at that time in those meetings called Centuriae Comitiis Satrapiae Comitiis now called Court Leets and Sheriffes turnes doth appeare by a Law practised in those dayes and after revived by King Etheldred who lived Anno 979. which thus insueth In singulis Centuriis Comitia Sunto at que liberae conditionis viri duodeni aetate superiores Lamb. Expâ—â— verbo unâ cum Praeposito sacra tenentes juranto se non innocentem damnaturos sontémve absoluturos Let there be meetings in every Hundred and let twelve freemen of the better sort together with the chiefe pledge sweare upon the holy Evangelist not to condemn the innocent nor to acquit the nocent that is to doe every man right I will passe over many good lawes before the Conquest let us cast our eyes a little neerer and see how the Counsell of Iethro to Moses hath beene since pursued Bracton a learned and famous Common Lawyer who wrote in the time of Hen. 3. from the Conquest writes of the practice and duties of Kings Rex non alius debet judicare c. Bract. l. 2. cap. 2. The King and none else ought to judge if he alone be able to doe it sithence he is bound thereto by vertue of his oath and there fore the King ought to exercise the power of law as Gods Vicegerent and minister on earth Sin autem Dominus Rex ad singulas causas determinandas non sufficiat c. But if the King be not able to determine all causes that his labour may be the easier in plures personas partito onere eligere debet de regno suo viros sapientes timentes Deum in quibus sit veritas eloquiorum qui oderunt avaritiam quae inducit cupiditatem Et ex illis constituere justiciarios vicecomites alios ministros ballivos suos ad quos referantur tam quaestiones super dubâ—is quam querimoniae super injuriis c. He ought to choose out of his Kingdome wise men fearing God and hating coverousnesse and out of them to appoint Justices Sheriffes and other Ministers to decide questions of doubt and to redresse injuries c. All subordinate Justice derived from the King and Crowne IN a cause of Replevin upon a distresse for an Amerciament in a Leet 12 Hen â— 18 Fineux then chiefe Justice in his grave and learned argument affirmes That at the first the administration of justice was in one hand and in the Crowne and then afterwards by reason of the multitude of people the administration of justice was divided into Counties and the power was committed to a depatie in every Countie that is to say a Sheriffe who was Bayliffe and Deputie to the King and was assigned for conservation of the peace and to punish offenders and to defend the Realme upon invasion of enemies to bee attendant upon the King in times of warre and to cause all his people within his Countie to goe with him for defence of his land and for the better governement of the Countie and correction of offenders There were two Courts assigned to him viz. the Countie Court held every moneth and the Sheriffes turne held twice every yeare by which two Courts the whole Countie was governed the Countie Court was for one man to have remedie against another for any thing betweene them under 40. shillings And the Sheriffes turne unto which every man within the Countie of a certain age should come and were compelled to come that
when men ought to intend devotion and other workes of charitie for remedie of their soules and sometimes after the gule of Harvest when every man almost was busied about the cutting and carrying of his Corre Plowd fo 316. b. The Calends of Aug. or the feast of S. Peter ad vincula 31. Edward 3. ca. 15. whereby the people were much grieved and disquieted King Edward the third upon the grievious complaint of his Commons desiring the quietnesse of his people did ordain and stablish that every Sheriffe from thenceforth should make his Tourne yearely one time within the moneth after Easter and another time within the moneth after Saint Michael and if they held them in other manner that then they should lose their Tourne for the time As it was restrained in time 2 Place So it was to place and persons it must bee kept within the precinct and libertie in loco debito et consueto If it be holden otherwise it is coram nonjudice And the matter of cognizance must bee within the view For 41. Edward 3. fo 31. Kyrton cites a Case wherein the Lord avowed the taking of an amerciament for the stopping of an High-way which in rei veritate was out of the Iurisdiction of the view and therefore the Plaintiffe recovered dammages If the Sheriffe shall keepe his Tourne in loco in consueto he may be indicted and punished for it 3 Persons Dyer 151. As for the persons Although in the time of King Arthur Omnes Proceres Comites Barones c. were to sweare and doe their suit reall in pleno Folkmote yet by the Statute of Marlebridge Marl ca. 11. it is thus provided by way of restraint De turnie vicec provisum est quod necesse non habeant ibi venire Archiep scopi Episcopi Abbates Priores Comites Barones nec aliqui viri religiosi seu mulieres nisi corum praesentia ob aliam causam specialiter exigatur c. So by this Statute All clergie and religious men All Earles Barons and all women are excepted and exempted and by the law al other people under the age of 12. years their presence being not necessary there in regard they are never sworne upon any inquests But all freeholders terrtennants and other persons inhabiting within the precincts of the Leet ought to appeare and do their suit and tennants in ancient demesne are not bound to come to the Sheriffs Tourne and consequently not to any Leet If any of the said persons mentioned to be exempted Fitzâ— na Bre. f. 158.161 or if any in wardship to the King should be distreyned to do their fuite the law hath provided severall forms of writs De exoneratione sectae for discharge of every of them Whatsoever the law prescribes or restreines in the Sheriffes Tourne Broo. Leet 26 22 Edw. 4 22. the same is binding in a Court Leet and it was agreed for law that the power of a Sheriffein the Towne and a Steward in the Leet were all one onely the Leet have power to enquire and take presentments of nusances and offences aswell in the Courts after the feast of Easter as after the feast of S. Michael Fitzâ— Leet 11 whereas the Sheriffe in his Tourne after Easter ought not to enquire of any action popular c. but only to take suite of the resiants and other suitors and to take the view quod trithinga teneantur scilicet That all above the age of 12. years come and appeare there to doe their suite and to take the oath of Legiance if they were not sworn before For after a person is once juratus in decennaria or ad fidem legeanciam Domini Regis hee is not compellable to be sworne againe As a Leet is derived by grant from the crown Forseiture of a Leet so by divers causes that may be seized into the Kings hands and returne to the Crowne againe and if for any just cause it bee forfeited and seised then must the resiants and suitors againe attend and doe their suite at the Sheriffes Tourne and what is omitted in the Tourne might be presented in the Kings bench for in the case of Iohn Charneles Edward the third Belknappe sets forth the law to be that if a thing were not presented within the Lords view then it should bee presented in the Sheriffes Tourne and for default there it should bee presented in the Kings Bench when the King came into the countrie by which it plainely appeares as before is expressed that the Iustice of the Kingdome was at first wholly in the hands of the King and immediately derived from his person to Subalterne Officers To answer one Objection for the time that all Leets are not kept strictly infra mensem after Easter and Michaelmas VVHere there are ancient Customary Courts of Tenants in ancient demesne or such like that were ever exempted from the Sheriffes Tourne and the Lords of such lands had their owne Tournes that of Easter being called Turnus de Hockday and that of Michaelmas Turnus Sancti Martini as in the Bishoprick of Winton and other places those Courts are left to their Arbitrary keeping either before or after the moneth or at other set times according to their ancient respective Customes and not restrained by any Statute Britton the tenour of whose learned worke runneth in the Kings name Edward 1. as if it had beene penned by himselfe answerable to Iustinians Institutes doth there in the first salutation of the Kings subjects with Edwardus Dei gratia c. set forth That because his peace could not well have its being without Law he caused the Lawes then used in this Realme to be put in writing and did thereby command a strict observation thereof in all things Saving a power to repeale alter and amend all such things as should seeme meet unto him with the advice of his Earls Barons and others of his Councel and saving all customes unto those as by prescription used the same time out of minde so as those usages were not discordant unto right At that time being 5. Edward 1. those ancient customarie Tournes within many particular Lordships were in use not subject to the Sheriffes Tournes and so not within the meaning of the Statute of 31. Edward 3. cap. 15. which being made long after extendeth not to any Leets but such as were and are derived out of the Sheriffes Tourne and so it was admitted by the Iudges that the Leet of another Lord was not within the Statute but the Leet of the Tourne Brooke Leet 21.6 Hen. 7.2 And so by necessarie consequence All Leetes derived out of the Sheriffes Tourne and no other In what Cases and by what meanes a Leete or Franchise may be seised or forfeited or the Lord damnified IN all grants of any Liberties or Franchises there are commonly two conditions one in facto which is alwaies explicite as to pay mony or to do or not to do any other act c. 2.
committed within your libertie you shall also present all offenders and offerces against the Statute made in the fourth year of our late Soveraigne Lord King Iames intituled an Act to represse the odious and lothsome sin of drunkennesse and also against the Statute in the first Session of Parliament in the first yeare of his late Majesties raigne intituled an Act to restraine the inordinate haunting and tipling in Innes and Alehouses and other victualling houses with the alterations and additions contained in the said Act of the fourth yeare according to the alterations and additions of the Statute made in the 21. yeare of his said late Majesties raigne intituled an Act for the better repressing of drunkennesse and restraining the inordinate haunting of Inns and Alehouses and other victualling houses And lastly you shall well and truly doe and execute all those and such other things as are incident and doe belong unto your office of Constable for this yeare now to come So help you God FINIS AN EXPLANATION OF The old Oath OF LEGEANCE CONSISTING Of these foure generall Heads 1 What Legeance Ligeantia or Fides is 2 The extent of it by this ancient Oath and the severall parts and branches of the Oath 3 The Modus Reddendi of aids and supplyes to the KING 4 The Royall Office of the KING in the protection of his people confirmed at his Coronation Together with their severall Subdivisions at large LONDON Printed by Richard Badger 1641. AN EXPLANATION OF THE ANCIENT OATH OF LEGEANCE AN Oath is an attestation or calling God to witnesse of the truth touching those things which we say affirme and promise to do upon the holy Evangelists and before a lawfull Magistrate authorized to take such an Oath and that is a legall Oath There are two sorts of Legall Oaths used and practised within this Realme viz. Iuramentum consuctudinarium warranted by the custome of the Realm which is no more than the Common Law 2 Iuramentum Parliamentarium an Oath created and enacted by all the three States as the Oath of Supremacie prescribed 1 Eliz. cap. 1. and the Oath of Allegeance 3 Iacob 4. And no Oath can be imposed upon the Subject but what is enabled by the usage of the Common Law or by an Act of Parliament This ancient Oath was in time very long before the great Charter as in the former tract is remonstrated And bath beene confirmed from time to time in and by Magna Charta So that it hath 〈◊〉 power and vigor both from the common and commitâ—â—â— lawes of this Kingdome The Oath though once before mentioned doth follow viz. Heare yee that I. N. do sweare that from this day forward I will be true and faithfull to our Soveraign Lord the King and his heires and truth and faith beare of life and member and terrene honour And I will neither know nor heare of any ill or dammage intended unto him that I will not defend So help me God This Oath containes a reall protestation of every Subjects dutie to his Soveraigne and expresly declares what Subjection and Obedience ought to be expected from them and implicitely the office of the King towards his people which is protection for it is truly said That protectio trahit subjectionem subjectio protectionem It is cleare that the generall obligation of subjection and duties from the people and the power and prerogatives royall in the Prince are included in the law of God and are part of the Law of Nature whereto all Nations have consented which if I should Illustrate as well I might by innumerable testimonies presidents and examples aswell out of sacred Scriptures and Fathers as out of Heathen Writers Historians and others it would fill up a larger volumne than this Subject would require I am onely to deale with that subjective faith and Legeance which by the provinciall Lawes of this land which are Generalis consuetudo Regni Anglicae is naturally and legally jure haereditario due to the person and royaltie of his sacred Majestie This Legeance is derived to him from Lex aeterna the Morall Law called also the Law of nature part whereof the Law of England is being first written in Tabulis rectae rationis in the heart of man and the people by that Law governed two thousand yeares before it was published and written by Moses and before any judiciall or municipall lawes For the better informing of the vulgar sort of people herein for whom it is most convenient I shall assay to present to the well affected reader some collections to that end whereof I shall as the matter will beare endeavour an orderly prosecution 1 First a generall proposition what Legeance ligeantia or fides is 2 Secondly the extent of it by this ancient Oath and the severall parts and branches of this Oath 3 The Modus reddendi of aides and supplyes 4 The Royall office of the King ad protectionem for the protection of his people sacramentally confirmed at his Coronation 1 Legeance is a true and faithfull obedience of the Subject due to the Soveraigne this Legeance and obedience is a due inseparable from the Subject and is called ligeantia naturalis for as soone as he is borne he oweth by birthright Legeance and obedience to his Soveraigne Ligeantia est vinculum fidei the bond or obligation of faith and loyaltie Master Skency De verborum significatione verbo ligeantia saith That it is derived from the Italian word liga viz. a bond league or obligation As a great Lord Chancellor in the case of postnati said That ligeantia understood sensu currenti in the language of the time is vincusum fidei obedientiae the tye or bond of faith and obedience And he that is borne in any of the Kings dominions and under the Kings obedience is the Kings leige Subject and borne ad fidem Regis That is being the proper word used in the Law of England to be faithfull to the King It extendeth further in all cases of denization which is called ligeantia acquisita where any alien or stranger borne out of the Kings Dominions doth afterwards by any common grant of the King any Act of Parliament or other waies or meanes obtaine the freedome of a Subject within this Land Sometimes the extention of this word is yet larger for he that is an alien born out of the Kings Dominions ad fidem or under the obedience of another King if he dwell within the Kingdome and be protected by the King and his lawes hee is under the Kings Legeance ligatus Regiâ— and the reason is plaine For if to such a person any injury is done either in life member or estate the Law taketh as severe an accompt and inflicteth as severe a punishment upon the offenders in such cases as if the partie injured had beene subditus natus borne within his Majesties dominions Then great reason that such persons having the benefit of naturall borne subjects which is protection from suffering
and without limit from this day forward 2 The terminus a quo you every subject whom the Law injoynes to take this oath 3 The qualities or properties required that is to be true and faithfull 4 Terminus ad quem to whom To our Soveraigne Lord the King and his heires 5 In what manner And faith and truth shall beare of life and member That is as in Calvins case untill the letting out of the last drop of our dearest heart blood And I must adde what is there omitted And terrene honour That is the uttermost of our estate and livelihood 6 The circumstance of place where these duties of Legeance concerning our lives and estate ought to be performed it must bee in all plaees whatsoever without any circumscription for you shall neither know nor heare of any ill or dammage c. that you shall not defend The parts of this oath for the better instruction of the common people I shall summe up in this one proposition which I will presume briefly and succinctly to handle Every subject must be true and faithfull to the King and his heires to the uttermost of his life and fortune or estate 1 The King hath a double capacitie in him one a naturall bodie being descended of the blood Royall of the Realme which is subject to death infirmitie and such like 2 The other is a politike bodie or capacitie so called because it is established by the policie of man and in this capacitie the King is esteemed to be immortall invisible not subject to death infirmitie infancie non-age c. This Legeance is due to the naturall person of the King which is ever accompanied with the politike capacitie that is the Crowne and Kingdome And is not due to the politike capacitie only distinct from his naturall as by divers reasons in Calvins case is at large recited and resolved For if that distinction might take place then would the faith legeance and obedience of every subject due to his Soveraigne be appropriated regimini non regenti to the government of a Kingdome not to him that ruleth or governeth In the time of Edward the second at a Parliament holden at Yorke Hugh la Spencer the sonne being nominated and appointed to serve the King in the office of Chamberlein did draw unto his adherence Hugh Spencer his father and they both usurping upon the Kings Royall power and compassing about to have the sole government of the land to themselves did traiterously contrive a declaratorie writing which they would have compelled the King to signe purporting amongst other mischievous positions That homage and oath of Legeance was more by reason of the Kings crown that is his politike capacitie than by reason of the person of the King whence they inferred these damnable and detestable consequents 1 If the King did not demsne himselfe by reason in the right of his Crowne his leiges were bound by oath to remove him 2 That sithence the King could not be reformed by suite of Law that ought to be done per aspertee by asperitie of Compulsion 3 That his leiges be bound to governe in aide of him and in default of him All which execrable opinions were condemned by two Acts of Parliament one in the 14. yeare of the raigne of the same king Edward the second called Exilinm Hugonis le Despensor patris filiâ— the other An. 1. Ed. 3. cap. 1. which confirmed the banishment of these Spensers Legeance then by law of nature before any judiciall or municipall lawes were recorded or reported is due to the sacred person of the king alone immediately and without any intervallum or moment of time and before the solemnitie of his Coronation and so must remain to him and his heires and entirely without any partnership with him or any intermission in default of him emnimode by all wayes and meanes It is due to his naturall person accompanied with his politike capacitis indistinctly without any partition or separation and this oath is a politicall confirmation of that Legeance It is due to him as he is mixta persona anointed by the hand of the priest as he is supreme head under Christ in all causes and oveâ— all persons aswell Ecclesiasticall as Civill The qualities prescribed by this oath are naturally incident to Legeance veritie and fidelitie to be true and faithfull and they compâ—ehend what before is spoken of faith obedience and subjection faith unto his person obedience to his lawes Subjection to his government or all to all faith subjection and obedience to his person laws and government By the ancient lawes of this Realm this kingdome of England is an absolute Empire and Monarchie consisting of one head which is the king and of a bodie politike which is the common wealth compact and compounded of many and almost infinite severall members all which the law divideth into severall parts the Clergie and the Laietie this Legeance requires a due observancie of all the Morall lawes contained in both Tables of the Decalogue To obey our king in the true and sincere worship of God according to the canonicall discipline of the Church ratified by his regall authoritie To obey him in abandoning all apostasie from Christianitie heresies schisms factions fond and fantastike opinions repugnant to the Orthodox doctrin of the Church To obey him in acknowledging a supremacie in him and a subordinate superiority in his Ministers and Magistrates over his people To obey him in all the rights of distributive and commutative justice in doing good as works of mercy charitie and pietie and eschewing evill that is all sorts of felonies fraud force deceit and all offences whatsoever which derogate from or deprave the peace and government of the Realm The performance of these duties makes a true and faithfull subject The latitude and extent of this veritie and fidelitie from the subject to the Soveraign is twofold The extent this oath first of life and member secondly of terrene honour wherein the prerogative of the king is considerable generally according to the speciall law of nature called by some jus Gentium and stiled by our common law lex rationis the law of reason and more specially according to the municipall lawes and customes of this kingdome The King is pater patria and every subject is bound by the law of nature to hazzard and adventure both life and member for the safetie of the King and Countrey either against privie and traiterous conspiracies civill mutinies and dissentions or hostile Invasions or injust warres or in the execution of legall acts of justice The Poet could say Dulci est pro patria mori a sweet thing it is to die for our Countrey and as sweet a thing it is to die pro patre patria for the father of our Countrey for indeed both come to one There may bee many causes of warre which when they are discussed and resolved by the King and State the justnesse of them is not to be disputed by
every private person The end of all warre should be peace bellum geritur ut pax acquir atur 1 It is just cause of warre when publike negotiation and commerce is interrupted or disturbed and for recoverie of things wrongfully and by force taken fiom us by forraigne enemies 2 Or if any shall goe about to usurp upon the Kings right of dominion in any of his kingdoms It is just cause of warre After that David by Gods direction went up to Hebron and was anointed king over the house of Iudah upon the death of Saul he maintained a long warre against Ishbosheth the sonne of Saul for usurping the kingdome of Israel 2 Sam. 2. The revenge of an injurie or disgrace dispitefully done either to a Prince or to his Embassadors is likewise a good cause of warre when Naash the king of the children of Ammon dyed and Hanun his sonne succeeded in his stead David sent messengers to comfort him upon the death of his father their entertainment was not suitable to their errand Hanun by the advice of his Princes tooke Davids servants and shaved them and cut off their garments in the midst a natibus usâ—â— ad pedes and so sent them away For this great disgrace and abuse the text faith grandem contumeliam sustinuerunt David did justly wage battell against the king of the Ammonites Chro. 1.19 He did the like against Sheba the sonne of Bochri a man of Belial for blowing a Trumpet and solliciting the men of Israel to revolt from David to him Samuell 2. chapter 20. â—â—â—y other particulars might be here instanced Next how farre the preeminence of a king as to life and member is to be considâ—red Life and member considerable by the common and statute lawes specially by the common and Stature lawes of this kingdome by the common and positive lawes of England The subjects are bound by their legeance to go with the king and by the Commandement of the king in his wars aswell within the Realme as without and this doth copiously appeare by severall statutes which seeme to bee but declarative of the common law as 1 Ed. 3. cap. 7. which mentions the conveyance of souldiers into Scotland Gasconie or elsewhere 18. Hen. 6. cap. 19. which maketh it felonie If any Souldier retained to serve the King in his wars doth not goe with or doe depart from his Captaine without licence the preamble of the Statute tels us that the Souldier so doing did as much as in them was decay the honour and reverence of the king And by the Statute of 7. Hen. 7. cap. 1. Forasmuch as the offence of departing or not going did stretch to the hurt and jeopardie of the king the nobles of the Realme and all the Common weale thereof therefore he or they so offending should not injoy the benefit of Clergie By the Statute 11. Hen. 7. cap. 1. It is expressed that the subjects of this Realme are by reason of their allegeance bound to serve the Prince from the time being in his wars for the defence of him and the land against every rebellion power and might reard against him either within the land or without and this statute together with some others were adjudged Trin. 43. Eliza. to be perpetuall acts and not transitorie for the kings time only wherein they were made As peace is the true end of warre so peace must be preserved that warre may be avoided In the times of peace there must bee preparations for warre by causing musters and martiall meetings to be assembled at times convenient And therein the Lievtenants their Deputies of each severall Countie with Muster-masters and other subalterne officers have a speciall interest of imployment and therefore provision was made 4. 5. P. M. for the better ordering of Musters Captaines and souldiers In the time of peace the common and municipall law of this kingdome provides for suppressing of all rebellions insurrections and rietous assemblies To which end the king commits the custodie of each countie to an officer very ancient with us called a Sheriffe who for the service of the king and peace of the countrey hath power to raise the power of his countie And every subject is bound to attend him as the kings deputie in causes of publike service warranted by the lawes and this officer is to dwell in his proper person within his Baylywicke that he may the more readily attend the kings service The second point is terrene honour Terrene honour what it is and herein I must walke warily passibus aquis First must be determined what is meant by terrene honour Some would have it to be the outward worship and ceremoniall honour that wee can doe in this world to the king next to the service of God If that were only intended by these words it were but a shadow in regard of substance for in devoting our life and blood is comprehended the highest pitch and streyne of honour that might be Our Saviour Christ his words Matth. 6.25 Is not life more worth than meate and the body than raiment will fully satisfie us that the life of man is above all worldly riches and honours and therefore something else must be conceived out of these words more than a shadow or ceremonie By the first commandement of the second table in the subdivision of the persons to whom honor is due there is in the opinion of many Divines a kind of particular honor or esteem to be ascribed to a man who is more wealthy than his neighbour in regard of the talent of terrene riches wherewith God hath endowed him and thereby enabled him to supply the King and the common weal by rendring his respective dues and duties unto them in a larger proportion than other persons who are inferiour in their worldly meanes Dat census honores Then sithence all riches wealth and substance are called terrene quiae terris terrenis accrescant because they proceed and have their being out of earth and earthly things and are the causes of particular honour and esteem and of distinguishing the degrees of men as husbandmen Yeomen Gentlemen Esquires and the like and also of cradesmen both of Merchandize and manufacture according to the customes of this Kingdome It will follow by good consequence that as the King is to bee honoured and obeyed with life and member so with earthly substance according to the demension thereof and the degree of each mans earthly honour Saint Paul in the generall cleares this point of prerogative jure divino Romans 13. Omnis anima potestatibus sublimieribus subdita sit c. Let every soule bee subject to the higher power For there is no power but of God verse 2. whosoever therefore resisteth the power resisteth the ordinance of God And the Apostle pursues it with Ideo necessitate subditi estote c. verse 5. Wherefore yee must needes bee subject not only for wrath but also for conscience sake Verse 6. For this cause pay
not our Christian faith and legeance to our Saviour nor our naturall or civill Legeance to our Soveraign cannot bee interdicted to the poorest thoughts Sure I am this Court is so ancient and of such transcendent honour and justice as Plow com.fo 399. observeth that none ought to imagine any dishonourable thought of it and why It must be so esteemed ratione persone regis by reason of the kings sacred person who is there present and president of that great Assembly as also the laws there made are established by the generall consent and are obligatorie both to king and people The parliament being called with the advice and consent of the privie Councell what is the end of their meeting Sir Thomas Smith in his Common wealth of England l. 2. c. 2. shall speake for me The Parliament the Kings Royall assent being had Power of a parliament abrogateth old lawes and maketh new giveth order for things past and things after to be followed changeth the right and possessions of private men legitimateth bastards establisheth formes of religion giveth forme of succession to the Crowne defineth of doubtfull rights whereof no law is already made appointeth subsidies tayles taxes and impositions giveth most free pardons and absolutions restoreth in blood and name with many such preheminences In this great assembly no reviling nor nipping words must be used And if any speake unreverently or sediciously against the Prince or the privie Councell they have not noly beene interrupted but justly sent unto the Tower by the authoâ—â—tie of the house those that be members of that bodie must come with a prepared heart to consult together to give counsell and advertisement what is good and necessarie for the common weale they must come with cheerefull resolutions to supply the prince his wants they must cast off all rancor spleene and private malignancie for locus facer est I will second it with the words of a great Judge Co. Inftit fo 110. a. The jurisdiction of this Court maketh inlargeth diminisheth abrogateth repealeth and reviveth laws Statutes Acts and Ordinances concerning matters Ecclesiasticall Capitall Criminall Common Civill Martiall Maritine and the rest What cannot a parliament doe as a great peere once told Queene Elizabeth Royall assent being had was it not then a hainous and inexcusable crime for any man intrusted with the lawes publikely to declare that the late imposition of Ship-money was a prerogative so inherent in the Crowne as that it could not be taken away by Act of parliament It is most repugnant not only to the workes and writings of the ancient heroes of the law Bracton Fritton Fortescue and others but also to the opinions of grave and learned moderne Writers and dead and living Judges But that opinion and all the proccedings upon the Shipwrits are in this present parliament condemned and disanulled 17. Car. cap. 14. and the petition of right in every particular confirmed To adde something more Bellarmine after many sharpe writings and vehement disceptations in defence of merits and workes of supererogation his age hastening his end now bethinks himselfe falls wholly from disputes of merits to pious meditations and therein presents unto the world Tutissimum est iter ad calum per merita Christi The safest way to heaven is by the merits of Christ An honourable peere as great in the policie of our English state as ever the other was in the Romish Church was formerly a great Zelote for the liberties and wellfare of the common people and an earnest prosecutor of the petition of right Afterwards in the highest of his eminent advancements relapsing and disaffecting the course of parliaments whose examination and try all his actions could not well endure mole tandem ruit sua is at length hurried downe with the weight of his owne greatnesse And not long before his death ingenuously confessed That the Parliaments of England were the happiest constitution that any kingdome did ever live under and under God the best meanes to make King and people happie And sowith his dying words omitting the numerous priviledges of that high Court I conclude this part THE KINGS Royall office OF PROTECTION I Shall proceed to the last of my Generalls that is The Royall office of the King for the protection of his people I have touched before his personall and politike capacity and the naturall Legeance and Subjection of the people to him and principally in the right of payment their dues and duties and the great question de modo reddendi As Legeance is due from the Subject to the King before the Oath be taken and the Oath is but a visible demonstration of it So there is a Protection due from the king to the people before the oath administred to him at his Coronation and that oath is but a politicall expression of what by the law of God and nature and the lawes of our nation appertaines to his Kingly office It is observed upon the sift Commandement Vbi sanciuntnr officia inferiorum erga superiores And. Rivet in 5. Praec Decal ibidem etiam superiorum ergainferiores sanciri where subjection is jojoyned there protection is implyed As the Subjects must bee true and faithfull to the King of life member and terrene honour So the King must be as true to them in the protecting of all these and their libertie and proprietiein all these viz. the libertie of their lives of their religion of their persons and the propertie and right of their lively hood and estates in their lands and goods all which may be comprehended under this one word libertie dulce nomen and res dulcis Bâ—t what is libertie What liberty is It is a freedome or free and quiet enjoying of a man his spiritual and temporall estate his bona animi or animae and his bona fortunae from rapine expilation and all unjust incroachments restrains confinements imprisonments and oppressions whatsoever and that part of our Law which concernes the Subjects libertie is commonly called in the Law bookes Lex terrae Liberty is the only preserveresse of a Christian Common wealth in incolumitie and stabilitie And as one saith Rebus omnibus humanis Anteponenda pro illiusque incolumitate integritate totis viribus opibus dimicandum It is to bee preferred before all humane affaires and the safery and entirement of it to be propâ—gned and defended with all manner of strength and power But liberty must have its modum mensuram It must be with an It a tamen cum justitia dignitate praesidio reliquis reipulblâ—cae ornamentis sit conjuncta It is and must be joyned with lustice Honour ayd and the rest of the Ornaments of a Common-wealth That is true liberty which is joyned or affianced with uptight reason And he is a true Free-man which hath such reason for his guide in all his actions Reason is radius divini luminis the lustre of a divine illumination It is the stampe of Gods Image
Anno 1556. appeares have set forth the forme of the KINGSO ath at His Goronation Out of which I have selected these branches concerning the regall Office of Protection 1. That hee shall keepe and maintaine the right and the liberties of the holy Church of old time granted by the righteous Christian Kings of England 2. That he shall keepe the peace of the holy Church and of the Clergie and of the People with good accord 3. That hee shall doe in all his judgements equity and right Iustice with discretion and mercy 4. That he shall grant to hold the Lawes and Customes of the Realme and to his power keep them and affirme them which the folke and people have made and chosen and the evill Law â—s and Customes wholly to put out 5. And stedfast and stable peace to the people of this Realme keepe and cause to bee kept to his power 6. And that hee shall grant no Charter but where hee may doe it with his Oath All these severall branches are but the specifications of that one word Protection What Protection is But it will bee demanded what is protection It is not onely a safe-gard and defence of life and member liberty lands and estate of the Subject but a conservation and maintenance as well of the Religion as of the Lawes established within his Majesties Realmes And that this blessing of protection may the better flourish over us The incessant prayers of our Church do daily intercede for Our Gracious Soveraigne unto Almighty God so to dispose and governe his heart that in all his thoughts words and workes he may ever seeke the honour and glory of God and study to preserve his people committed to his charge in wealth peace and godlinesse This protection is generall from the King to all and over all his people and somtimes more specially to some particular persons in some speciall cases of transmarine businesses or other services by way of writ There are a twofold meanes by which this benefit of safety is diffused and distributed from the Prince to the people 1. By Lawes 2. By Armes Whereupon learned Glanvill Chiefe Iustice in the dayes of Henry 2. in his prologue to his Treatise of the Common Lawes of England thus begines Regiam potestatem non solum armis contra rebelles gentes sibi regnoque insurgentes esse decoratam sed legibus ad subditos populos pacificè regendos decet esse ornatam It doth well become Majesty not only to be well appointed with Armes against Rebels and Invaders of Him and his Kingdome But to bee furnished with Lawes peaceably to order his Subjects and people And Bracton Chiefe Iustice in the time of Henry the third affirmes thus In Rege qui recte regit necessaria sunt duo haec Arma viz. Leges qu bus utrumque tempus bellorum pacis recte possit gubernari He addes further Si arma defecerint contra hostes rebelles indomitos regnum erit indefensum Si autem Leges exterminabitur Iustitia necerit qui justum faciat judic um If Armes or Military supply against enemies be sâ—aâ—ted the kingdome will bee naked and indefensive and if Lawes be wanting Iustice will bee exiled and there will bee none to give just judgment Lawes and Armes are the proppes or pillers of Protection Lawes are of a most excellent preeminence above Armes If the Law had not bin broken there had bin no use of Armes I will therefore first begin with Lawes There was a Law insita naturae Laweâ—â— written in the heart of man in and with mans Creation after Gods owne Image By some it is called the Law of Nations and ought to be observed as well amongst Iewes and Gentiles as amongst Christians And in our Common Law it is called Lexrationis Dr. stud â— â— cap. 2. which by a naturall prompting doth informe us that all good things are to be pursued and all evill to be eschewed This Law of Nature through tract of time and Customes in sin was slurred defaced and in a great part worne out Necessarium igitur fuit quod daretur Liber extrinsecus continens leges praecepta per traditionem Dei c. And thereupon the Law was given by God upon Mount Sinay to Moses as is herein formerly handled which is the positive Law in the Scriptures The Prophets afterwards by often denouncing of woes and judgements against the breakers of the Law did quicken and give life unto it in the people The summe of all this Law and the duty of it our blessed Saviour did in one Evangelicall precept render unto all posterity In all things whatsoever yee would that men should doe to you Matth. 7 8.1â— doe yee even so to them for this is the Law and the Prophets From the Law of Nature or Reason and from the divine Law imposed in the Scriptures all the principall and fundamentall Lawes of our Kingdome are subderived and thence by secundary and mediate grounds have their essence and consistence As the Law of Nature was at first not written in any judiciall book So you have heard before that the Lawes of England were at first leges non scriptae and the subjects liberties only known and distinguished by Custome and usage These not written Lawes for the most part of the first two centuries after the Conquest were much obscured and even subverted partly by the then over-ruling arbitrary sway of Soveraignty sometimes by Papall usurpations oftimes by the over-weening power and tyrannicall pressures of the Peeres and Great Counsellors of state over the poore disheartned Commons who for recovery of their wounded and defaced Lawes and liberties were ofâ— inforced into many outragious rebellions and bloudy insurrections in so much as the Government of the Kingdome for a long time greevously languished of an Antonotnical feaver Begin we with the beginning of the Subjects seeming recovery of their old Lawes and liberties King Iohn before mentioned having bin long imbroyled by the Civill Warres of the Barons inflamed by the Pope who to advance his supremacy here soothed up the King in thundring out excommunications against the Barons about the seventeenth yeare of his Raigne being affrighted with the noy sed strength of his Nobles Army King Iohn descended to a meeting and parlee with them at a place called Roundesmead betweene Stanes and Windsor And upon a pacification of his Nobles and for quieting of his kingdome He there by his Charter 16. Iunij Anno regni 17. called Magna Charta did grant unto his Peeres and Commons their long claymed liberties and not many moneths after dyed Henry third a Child of nine yeares age Anno 1216. Henry 3. ascendeth the Throne as heire to the incumbrances of the kingdome as well as to the Crowne The Commons greedy of liberty and the Nobility of rule and the humorous spirits of young insinuating favourites opposing and discountenancing the wisdome of the gravest Counsellors kept the
King in an unsteady and unsetled course of Government In the ninth yeare of his Raigne Anno 1224 He granted to the Nobility and Commons such Lawes and liberties as had bin used long time before And caused Charters to be made one called Magna Charta the other Charta forestae which he sent into every County The praeamble of Magna Charta doth set forth The two Charters granted 9. Henry 3. That to the honour of Almighty God the advancement of holy Church and the amendment of the Realme The King of his meere and free-will did give and grant to all Arch-Bishops Bishops c. Earles Barons and to all of his Realme the liberties following to bee kept within his Kingdome of England for ever which grant containeth in all 37. Chapters In the twenty ninth the greatest liberty of the Subject was granted Nullus liber h◠me c. viz. No Free-man shall be taken or imprisoned or be disseised of his freehold or liberties or free customes or be out-lawed or exiled or any otherwise destroyed Nor wee will not passe upon him nor condemne him but by the Law of the Land wee will sell to no man we will not deny nor deferre Iustice or right Here every word is a sentence grande in grano a weighty matter as I may terme it in the continent of a graine Herein is contained that eximium quoddam our Nationall liberty before cited And an epitome of so much of lex terra in the generality as concernes the Kingly office of Protection Grant of a Fifteenth In the 37. and last ch The Clergie Earles Barons Knights Free holders and others his Subjects did give unto the King in respect of both those Charters the fifteenth of all their moveables And the King did grant unto them on the other part that neither he nor his heires should procure or do any thing whereby the liberties of that Charter should be infringed or broken This grant of Magna Charta though it carries the forme of a meere Charter ex mero motu spontane a voluntate as it was the use at that time and long time after yet is it a Paliamentary grant and Statute and is called the great Charter though little in it selfe in respect of the weighty matter comprised in it in few words It is the fountaine of all the fundament all lawes of the Realme and the only basis and ground cell which supports the superstructure of all the Lawes and liberties of the Subjects And it is but a confirmation or restitution of those not written Lawes before mentioned Would any man thinke it possible that this Magna Charta could ever bee violated by the same hand that made it The King was young milde and gracious but easie of Nature a sin not in it selfe but by accident He was happy in his Vnkle the Earle of Pembroke the guide of his infancy but unhappy in Hubert de Burgo his Iusticiary and others Those liberties redeemed with the price of a fifteenth the Subjects had not long injoyed and little fruit of future freedome more than for the present like a glimmering sunne-shine in an unconstant calme had this common people by this grant Eft-soones the Clouds returne malum in malum ingruit The young King having newly attained the Age of twentie one yeares by the evill Counsell of his Chiefe Iustice Hubert at a meeting at OXFORD in the twelfth yeare of his Raigne did by open Proclamation frustrate and cancell his former Charters made in the ninth yeare of His Raigne under pretence that hee was under the power or ward of others So it followed that whosoever would injoy the liberties before granted must purchase their Charters under the Kings new Seale at such a price as the Iusticiar should award This was greevously taken by the Lords and COMMONS in so much as the same yeare the BARONS supplicated the King to restore the Charters which hee cancelled at Oxford or else they would recover them by the sword It was most disloyall in them to be assertores libertatum and to enter into competition with the King with Comminations of the sword Bracton who wrote long before left better Counsell behind him in such things as concerne the Act of the King Si ab eo petatur cum breve non currat contraipsum if any thing be requirable from him sithence he is lyable to no action Locus erit supplicationi quod factum suum corrigat emendet He is to be supplicated that he would reforme and amend his doing which if hee doe not Satis ei sufficit ad paenam quod Deum expectet ultorem It is punishment enough to him to expect the Lords revenge Observe what followed in this Kings time whilst he gave over the raines of his rule to young unseasoned giddy braines some of them alyens and strangers the gravest Counsellors being discountenanced the Barons falling into factious ruptures and the repining Commons into discontented rebellions The whole Monarchy languished all things were disordered and out of frame Almighty God looking downe from Heaven upon the vacillation and incertitude of this Vicegerencie under him upon earth exerciseth his owne supremacy addresseth one of his greatest Messengers of indignation famine which raged with that violence Claus An. 42. Henry 3. That the King was inforced to direct writs to all the Sheriffes of Shires ad pauperes mortuos sepeliendos famis inedja deficientes And it is observed fames praecessit sequutus est gladius tam terribilis ut nemo inermis securè possit provincias pervagare The Civill brandishments of the sword followed every where the fury of the Famine In this Nationall distresse silent leges Nay vix legibus tempus aut locus Scarce was there time or place left for clayme of liberties or execution of laws Sure it is the King and Commons had but little ease whilst his absolute power was participated not deligated to his great ones To recount the various troubles and turmoyles of his long and unsetled raigne were the work of a sad and sorry Hystory Afterwards it pleased God who hath ever a particular and tender care of Princesper quem reges regnant Principes dominantur towards the latter end of his Raigne to restore the King to his right and his tyred Subjects to their naturall obedience Hee had the happinesse to call a successefull Parliament at Marleborough 18. of Novem. 52. of his Raigne 1267. and therin amongst many notable Lawes enacted He solemnly confirmed the former Charters in all their Articles and strictly injoyned the observation of them to be inquired before the Iustices of Eire in their Circuits and before the Sheriffes in their Counties when need should be The King seeing his former errors now began to ballance his Government with Praemio paena reward and reprehension and himselfe with an equall hand to hold the scale He laboureth to reforme all that was amisse The seats of judgment and Counsell he supplyed