Selected quad for the lemma: law_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
law_n	call_v	great_a	king_n	6,950	5	3.6516	3	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A96344	For the sacred lavv of the land. By Francis Whyte.	White, Francis, d. 1657.	1652 (1652)	Wing W1765; Thomason E1330_2; ESTC R209102	136,470	313

the nature and disposition of the people or whether they will breed any inconvenience or no but a custome never bindeth till it hath been tryed and approved time out of minde during which no inconuenience did arise for if it had been found inconvenient it had been used no longer but had been interrupted and so had lost the vertue of a Law This is declared to be so by the Lords and Commons in Parliament in the 25 yeare of King Henry the eight which I shall cite below and if the Judgements and Declarations of Parliaments be not regarded I know not what can give satisfaction * Vid. 3. c. Ancient liberties and customes which have been usitatae approbatae used and approved m c. 9. Stat. Mert. make the Common law The statute called dictum de Kenelworth speakes thus the party convict shall have judgement according to the custome of the land n 57 Hen. 3. c. 25. The 27 of King Edw. the first of Fines Contrary to the lawes of our Realme of ancient time used The 34 of the same King confirmes to all Clerks and Laymen their lawes liberties and free customes as largely and wholely as they have used to have the same at any time when they had them best o c. 4. law and custome of the Realme are made the same p 1. E. 2.34 E. 3. Abjuration is called custome of the Realme q 9. E. 2. c. 10. The 25 of King Edward the third saies According to be lawes of the land of old time used r C. 2. The title of the 27 of this King speaks in maintenance of the lawes and usages the Statute 36 of the same King Lawes Customes and Statutes Å¿ C. 15. Statute 42. according to the old law t C. 3. In the time of Richard the second Law and usage are the same u 1 R. 2. c. 2. It would be tedious to heap up more of this kinde I will only adde the declaration of the Houses of Parliament in the time of Henry the eight which is thus Their words being directed to that King This your Graces realme c. hath been and is free from subjection to any mans lawes but only to such as have been devised made and ordeined within this realme for the wealth of the same or to such other as by the sufferance of your Grace and your Progenitors the people of this your realme have taken at their free liberty by their owne consent to be used amongst them and have bound themselves by long use to the observance of the same c. as to the customed and ancient lawes of this realme originally established as laws of the same by the said sufferance consents and custome and none otherwise w 25. Hen. 8. c. 21. Now if what the people of England have taken up out of long use custome and consent be not good agreeable and convenient after so much and so long triall they would appear the most foolish of all people They would not deserve that free liberty which themselves by their repraesentors tell us at the submitting to and taking these lawes they had and if they be good agreeable and convenient they would appeare the most foolish of all people by their change No lawes ever were or can be made with more equity then these to which besides use and custom and experience free liberty and consent of those who were to observe them gave life There is custome of Courts which is law too part of the Common law x Plowd Com. 320. as the Statute of Kenelworth If any man shall take revenge because of the late stirres be shall be punished according to the custome of the Court c. y C. 26. Six times is the Common law called by Littleton common right It is sometimes called right sometimes justice z Mirc c. 2 Sec. 16. Fleta 6. c. 1. Mag. Ch. c. 29. Magna charta calls it justiciam vel rectum justice or right Westm 1. Common right and the King wills these are the words That the peace of holy Church and of the land bee well kept in all points and that common right be done to all as well to poore as rich c. later statutes have Justice and right a 1. R. 2. c. 2. full justice and right b 2. H. 4.1 good justice and even right c 7. H. 4. c. 1. Common droiture in a statute d West 1. c. 1. is rendred Justice according to the law and custome of England e 2 Just 161. called common right as the Lord Cooke Because the common law is the best and most common birth-right the Subject hath for the safegard and defence not only of goods lands and revenues but of his wife and children body life and fame also f 1 Just 142 2 Just 56. That which is called common right in the second of King Edward the third g C. 8. In the first of that King h C. 14. is called common law Not onely as Fortescue doe the lawes of England favour liberty i C. 42. But they are notioned by the word The word liberties in Magna Charta signifie the lawes k C. 1.29 and in that respect is the great charter called the charter of the liberties l 2 Just 47 The Statute de Tallagio non concedendo has these words That all the Clerkes and Laymen of our realme have all their lawes liberties and free customes c. m C. 4. In the 38 of Edward the third the Laws are called Franchises in the old Bookes the great Charter the fountain of all our * Just 81. Foundamentall Lawes is called the Charter of Franchises the common Liberty the Liberties of England n Bract. 291 414. Pleta l. 2. c. 48 Brit. 178 because so the Lord Cooke they make frecmen o 1 Jnst 1 The customes of England bring a freedome with them therefore in Magna Charta are they called Free Customes p 2 Just 47. Mag. Char. c. 29. the Courts of Justice are also called Liberties because in them as the same book the Law which maketh free-men is administred q Mich. 17. Epist 1. in com berot 221. 2. 2 Jnst 4. the Law then is Liberty it selfe Liberty and Law are convertible nor is this Liberty titular onely and a Liberty of words In the expressions of the Petition of right out of Magna Charta cited in the first Chapter and out of the 28 of Edward the third No free man shall be taken imprisoned or disseased c. but by lawfull judgement or by Law of the land and no man of what estate or condition soever shall be put out of his lands or tenements nor taken imprisoned nor dis-herited nor brought to death without being brought to answer by due process of Law which is as after in that Petition of right either Customes of England or Acts of Parliament r 3 Car. Reg

the givers name called the Lawes of Hael Dha Further King Edward the first who totally subdued Wales in the Statute called Statutum Walliae where he changes many of their old Lawes by his words there makes it cleare that the Lawes of England and of Wales could not be the same for so there had been no change The words are The Lawes and Customes of those parts hitherto used we have caused to be recited before us and the Barons of our Realme which having diligently heard and fully understood as it is fit were laws worse then those there should be full understanding ere a change certaine of them by the counsell of our Barons foresaid we have blotted out certain we have suffered and certaine corrected b Stat. Walliae or of Rutl. 22 E. 1. Perhaps it was not thought fit after a new Conquest to make a thorough alteration of things too suddenly yet was this a long Statute and much of the Law of England imposed upon them by it The 27. of King Henry the 8. swept all clean That commands that the Lawes Ordinances and Statutes of this Realme of England for ever and none othr Lawes O rdinances nor Statutes shall be had used practised and executed in the said Country and Dominion of Wales c. c 27 H. 8. c. 26. The Saxons as M. Daniel made such a subversion of State as is seldome seen the new retained nothing of the former which held no other memory but that of its dissolution scarce a City Dwelling River Hill or Mountain which changed not names The distance made by the rage of war was so wide between the conquering and the conquered people that nothing either of Laws Rites or Customes came to passe over unto us from the Britains nor had our Ancestors any thing from them but their Countrey d Hist 9. But the Author of the patches to the Lawes of St Edward though in Geoffrey of Monmouths strain goes full up to King Brute himself of Geofferies begetting speaking of the weekly Husting of London sayes he which was builded a long while agoe like and after the manner and in memory of old great Troy and to this day it containeth in it selfe the Lawes Rights Dignities Liberties and Royall Customes of old great Troy e Ll. S. Ed. c. 35. c. which like the Phoenix lives in its ashes and here such is the kindnesse of some of our quaint Authors has overcome Greece in the grave being more fruitfull in noble Colonies then her Enemy so that it must be a very faire discent where the pedigree is brought downe from old great Troy As of old the Greek Lawes so since the German Nations have overflowne Europe now are the German Institutions every where received and in force sayes Grotius f De jure belli c. 133. As the Lombards Burgundians Franks Swevians and Vandalls and other the brothers and kinsmen of the Saxons seated themselves in Italy France and Spain and spread their Lawes where they over-ran upon no other Title but that of the Sword so did the Jutes Angles and Saxons plant themselves and the customes of their first homes here first as friends and allies invited in by the British King Vortigen having lands dwelling places given them to fight for the Countrey they make a league with the Picts the publike enemies destroying those whom they were called in to protect in which manner they setled themselves leaving none of those amongst them but such as were content with slavery Their owne Countrey-man venerable Bede borne 227. yeares after their landing tells us comparing them to the Chaldeans whom I choose to refer him to who would know more g Bede hist l. 1. c. 15. p. 59. their Lawes and Language though themselves have suffered by their owne blood by their fellow Tribes the Danes and Normans some of those calamities which they made others feel where time and age and corruption gnawing to which all things are subject have not made a little change continue in the maine to this day These Nations so powred out of Germany retaining the rites and terms of their own Countries all of the same manners and tongue It commeth to passe as the most knowing h Gloss 435. Col. 1. knight that there is so much consonancy betwixt us and the Germans French Italians Spaniards and Sicilians both in the Canon of the ancient lawes and in the names of Magistrates Officers and Ministers of State therefore as he goes on Let them brag that will of the antiquity of their municipal lawes their beginnings can be had no where else Germany it is meant is the common mother The terms of art of some of these Nations got as far as Constantinople amongst the Greeks where we may finde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Captain from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a throng 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he that holds by knight service from buccella a morsel buccellarius is amongst the wise Goths of Spain thus used 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 homage 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is gelt rent tribute c. from the Saxon geld 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bill scedule c. and many more which Meursius in his Graeco barbara has collected the most ancient laws of al these people are the salic laws nay of all laws now compiled obtaining These and the Franks who made them were of Germany so named from the River Sala in Frankenland not from Franiker as Ortelius would have it They were made in the third yeer of Pharamond king of the Germane Franks 105 yeers before Justinian the Emperour who published the Imperial Laws The Author where he has no Latin puts in his Franko-Germanic of the Latin fashion As William of Oangis in the yeer 420 the Franks began to use Laws and did dictate their Laws by four Princes of their Nation sala signifies in the Dutch an Hall as with us or Palace whence are called law salic manners-salic vassals salic which belong to the sale Hall or Palace and as yet is to be seen the salic book Salbuch in the German libraries like our Doomesday or Liber Agrarius here says another who tells us there of the Salian Franks the Authors of this law named so from the former river seated on both sides of the Main upon which stands Francford the head of the Nation i Boioar. hist l. 4.313 of whom and this Law is said before what the best Authors write In the same Salic Law are many words used in ours as Campio Forresta Forrestarius Sparuarius Marcha Veragelt which is our were gild c. These Customes went with Pharamond eight yeers after into France then after those of the western Gothes in Spain the Burgundian Laws the lawes called Alemaaic Boian and Frank other then the Salic were instituted by Thierry the first son of ●lodove who first became Christian corrected by Clothaire and Childebert and perfected by Dagobert After follow the Lombards who as they were a

Colonie of the German Saxons so are their lawes full of their and our Customes agreeing together in many things yet k Dn. Spel. gloss 440. When Austin the Monk was sent hither by Gregory the great to convert the Saxons in the yeer 597. Not one hundred and fifty yeers after the entrance of the Saxons he was commanded by him to take interpreters with him out of France in his way l Bede l. 1.25 and it was unlikely while the Saxons yet kept the language of their Countrimen they should have forgot their Customes contrary to the manner of all the other Tribes of that Nation The first Saxon lawes writ by them after their Conquest are those of Ethelbert of Kent the first Christian and Monarch then which says Venerable Bede amongst the other good deeds he did his people set constitutions of right judgements according to the example of the Romans with the Counsel or advice of his wise men Mid srotera geþeat Which he commanded to be writ in English and which are held says he of his time long after Aetbelbert to this day m l. 2. c. 5. These were short and rude like the age Next are those of Ine the West-Saxon those of Offa the Mercian Kings of Alfred King of England founder so Ingulphus of the English policie and order ever since observed called by the book of Ramsie The renowned King Alfred founder of the English Laws Who is first said by Master Lombard and others of the greatest name to have divided this land into Shires Hundreds and Tithings c. to establish jurisdiction in every of them n Archaolog 15. again it is said he gave not onely lawes but Magistrates Shires Hundreds c. which so one place speaks we have often observed o Gloss tit Ll. Angl. Iugulph Though no man can honour the sacred memory of this most glorious Prince more then my self and I know viros magnos sequi est pena sapere yet I cannot believe this Malmesbury speaks onely of the Hundreds and Tythings the invention of which he attributes to this King p de Gest reg c. 4. He might which the Glossary is once contented with review the Lawes of Aethelbert Ina and Offa transcribe and insert whatsoever was worthy into his lawes and impose them upon the Angles the English generally as the Danes submitted to him in which name the Jutes and Saxons were included he might adde much and polish what he found being never idle ever imployed for the good of his people either in his Courts and Councels of State or in the head of his Army But he that looks upon the lawes of King Ine will find enough to assure him that King Alfred laid not the first stones of the Government which by whomsoever laid were laid before King Alfreds great Grandfather was born there being neer 200 yeers betwixt these two kings q Fasti Savil Not to recite the lawes upon offences we read in the lawes of King Ine of the Shire the Alderman and the Kings Alderman One law speaks thus If any man shall let a thief escape or hide the theft c. If he be an Alderman þolige hisscire he shall forfeit his Shire c r Ll. Ina c. 36. Another If any man shall demand Justice or right before the Shireman the Earle or other Judge ſ c. 8. v.c. 6.51 c. The Proaeme mid eallum minum ealder mannum and with all my Aldermen the chapter of breach of the peace In the Kings Town Aldermans Town Kings Thames Town c. t c. 46. Thorold a Benefactor to Crowland Abby long before King Alfred in two old Charters is called by King Kenulph Vice Comes Lincoln and by King Withlaf quondam Vic. Com. Lincoln sometimes Sheriffe of Lincoln u Concil Sax 3●8 Ingulph 854.857 Venerable Bede who flourished in the time of King Ina tells us in the days of King Edwin King of the Northan hymbres Paulinus the first Archbishop of Yorke converted to the Faith Blecca with his family Line cole ere szre geƿefan w Bede l. ● c. 16. l. 5. c. 4. p. 375. The Gerefe of Lincoln and elsewhere says he Hanwald the gesiþ a word rendred comes with his geref w th his Sheriffe Aethelwine betrayed King Oswine x l 3. c. 14. l. 4.22 l. 5. c. 4 5. Hundreds and Tythings are not named in the Lawes of the Kings Ina or Aelfred In King Ina's Laws pledges borgas are named by which probably we may think Tythings to have been then One Law wills if the geneat the husbandman as now we speak steal and run away that the Lord pay the angild the price c. if he have no pledges y Ll. Ina. c. 21. Ll Edg c. 6. Cnati 19.27.35 After the laws of King Aelfred those of Edward the Elder of Aethelstone Edmund Edgar Aetheldred and of Cnut the Dane succeeded all which were distinguished and ranked under three heads The first of the Weft-Saxons under whom as united and submitted were comprised the Saxons generally caled ƿestseaxna laga the West Saxon Law The second of the Mercians or Angles called Myrcna laga the Mercian law the best and most select of which King Aelfred as before took into his laws not rashly as he says in his Preface He durst not as his words are because he knew not what the next age would like set forth much of his own What he did still as he pleased his wife men w Praefat. in Ll. Alf. those of his Counsel The Ðe●elaga was the last of these called the Danes law of all which we may say as is observed out of Ovid. Facies non omnibus una Nec diversa tamen qualem dicet esse sororum Yet King Cnut as much resemblance as there was lik't it not out of all these laws he composed one Common Law which King Edward the Confessor observed z Malmesb de gest reg l. 2. c. 11 ● See here ch 3. His title says The laws of St. Edward begin quas in Anglia tenuit which he held Edward the third before the Conquest as one set forth one Common Law called the lawes of Edward to this day a Ranulph cester l. 1. c. 550. Hov. 600. Ll. Ed c. 35. in Hoved. which because they were just and honest as the Paraphraste upon the Laws of St. Edward he recalled from the deep abysse and delivered to be kept as his own As another he was the lawful restorer of the English laws b Gemetic l. 6. c 9. all this may be he resto●ed them and recalled them from the deep Abysse they might be forgotten dedicated as the Paraphrast speaks to oblivion wholly but not as he addes from the time of King Edgar in the reigns of Harold the first and Hardicnut Besides restoring and addition he commanded this law should be kept as his own and being a king of the Saxon blood and falling last upon the work it is

Hovedens words this I will note here that Henry the second made Ranulphe of Glanville chief Justice of England by whose wisdome the laws underwritten were made which we call of England make no new law nor that chief Justice a law-maker they explain what is intended by the laws of Henry the first his Grandfather for the laws there underwritten w Hoved. pars pest 6●0 are meerly King Edwards laws confirmed by William the first king Richard the first swears to keep the good laws c. x Paris in Rich 1. without saying of St. Edward which yet can be no other those as is shown had got the name those must be meant by the expression good lawes the kings before and after swore to keep them K. Iohn absolved from the Popes thunder though at his Coronation by that oath to destroy bad laws substitute the good to exercise right Justice he had sworn the same y Ma. Par. 197. is forced to swear that he will as there revoke or restore the good laws of his ancestors here the expression good lawes is interpreted and especially the lawes of king Edward z Id. 239. In the same place where king John commands that the lawes of his Grandfather Henry be kept this must be intended of the first laws of his great Grandfather Henry the seconds Grandfather so often mentioned in the controversie betwixt Henry the second and that Martyr of the Roman make without a cause disobedient unruly Becket a Hov. 492. in H. 2 called by that king as before his Grandfathers lawes I say his great Grandfather Henry the first before here recited where Henry the first grants lagam Edwardi regis the Law of king Edward A Charter of which Stephen the Archbishop of Canterbury produces in the very next page of Mat. Paris after the absolution which well might be produced several transcripts of that Charter being sent by Henry the first to be preserved in the Abbies of all the Counties and there tells the Barons of the kings promise which he forced him as he says at his absolution to make that was to take away all injust laws and the good and just laws to wit as he still the laws of king Edward to revoke for restore and cause to be observed by all in the realm And now as he goes on there is found a certain Charter of king Henry the first by which if ye will your lost liberties you may to the Antient state revoke the transcript agreed word for word with the Charter b Ma. Pa. hist 55.210 the great sticklers for the lost liberties for the good and just laws for St. Edwards laws are all of them Normans or Norman-French such as came in since Edward and being setled here for some generations now made a great part of the whole amongst which are Fitz-walter Marshal of the Hoste of God and of holy Church this was his stile in the succeeding wars Vescy Percy Ros de Bruis Stuteville as there Saerie of Quincy Earle of Winchester the Earle of Clare descended from the Norman Gislebert Bigod Vere Fitz-Warin Marshal Beauchamp Manduit Fitz Allen Mandeville * Estoteville Munhrey * Mowbrey Montfichet Munifichet Montacute de Gant Laval c c id 254. These when king John asked them what laws they would have answered not Sir We are the Norman Conquerours give us this people for a spoile a prey make them our villains but quite another thing they offer him a Scedule for the greatest part as this Monk containing the antient laws and customes of the realm the chapters of the laws and liberties says he which the great men the Barnage or Baronage as in other places he cals them sought to be confirmed were partly written above in the Charter of king Hen. partly taken out of the ancient laws of king Edward d id ibid. Alll which lawes with much adoe were confirmed by king John this Scedule is the same and everywhere agrees with our Magna Charta or grand Charter and that of the Forrest granted and confirmed by king Henry the third called then by this Author the long required liberties e id 323. or rather by the whole Clergy and Nobility who tel the king they would give him the fifteenth which he desired if he would grant them the long required liberties which says this Historian the king granted and presently Charters were writ one of the common liberties c. And strengthened with his seal and one sent into every County But says he the tenors of the Charters is had above more expresly for here he recites not a word of them So that as he still the Charters of both the kings are not not found in any thing unlike u 5. H. 3 l. 1. Mort. dancest In. 323. in an 1224 the 8 of the King as he yet th charters has an 9. In the year foregoing this King was sought to by the Archbishop of Canterbury Stephen and the other great men the Barons at Oxford where he held his Court to confirm the liberties and free customes c w id 316. Which he did not then do but sent his letters or writs to all the● Sheriffs of the realm to cause twelve knights or legal men of every County to enquire upon oath what were the libertics in England in the time of king Heary his Grandfather so he is yet called x id 317 Ma. W●st the breakers of the Charters are Excommunicated with candles burning cast away extinguished and cast away stinking y Id. 861. Thus we see the stream of the laws of king Edward the ancient liberties and free customes some times running freely sometimes weakly sometimes stopped in their course at last have brake through all the Dams have mixed and incorporated with the great Charter whose basis and foundation they are z Nobilis D. Rog. Twis● den praefat in Ll. w. 1. H. 1 there still in being and still the fountain of the Common Law The great Charter raised upon this basis in one of the Statutes of confirmation is commanded by king Edward the first to be allowed by the Justices in judgement as the Common Law a 25. E. 1 c. 1 So that well might the Lord Cook say The great Charter is but a confirmation or restitution of the Common Law b Iast 81 It hath been confirmed above 30 times and by a Statute if any Statute be made against one of these Charters it is to be void c 42 E. 3 c. 1 ● which if it were intended not of the time past but of the time to come I see no such absurdity in it as some mens over wise policies would fancie some parts of it being as moral and immutable as the Decalogue it selfe As those That no man shall distraine for more service then is due no man shall be amerced for a small fault but after the manner of his fault no man shall bee destroyed

and Leases often profectio militaris and expeditio are the same which amongst the Saxons is called here fare amongst the Germans Hereban with us and the French escuage at least that which is certaine b Glos verbo Heribannm The Charter of Bertulph King of the Mercians Anno 851. to the Monastery of Crowland grants All those abovesaid Churches Chappell 's Lands Tenements Pastures Fishings Mannors Mansions Milles Marshes free and discharged from all secular service and earthly charge c. and I free from all duty of the King and of every other Lord and man of what dignity excellency and honour soever c Concil 346. Jngulph Hist 861. King Athelwulf the West Saxon and Monarch in his grant of the tenth Mansion and of the tenth of all goods to the Church differs little from these Hee will have that tenth part to be free as the severall Copies have it and as we find it hitherto to have been from all socular servitudes and from all royal tributes the greater and the lesser or from the taxes as in Ingulphus which we call winterden as Malmesbury Witerden as Math of Westminster Witeredden who agrees with the others in this part onely he has secular services for servitude all of them make the Charter conclude contrary to the Charter of Eadbald before and let it be free c. to serve God onely without expedition repaire of Bridges and Castles which by the old law or old policy rather of the English Saxons it is said the Kings could not discharge This is therefore called the writing of the Liberty of the Churches of England This Charter worthy of everlasting memory was granted in a Generall Councell at Winchester such one as is called Pan Anglicum where were present three Kings Athelwulf the Monarch the West Saxon Beared the Mercian after driven out by the Danes and Edmund the Eastangle the Martyr slaine by those Danes Hence the most worthy Knight thinkes the rectory and the glebe to have had their beginning though faire additions from the munificence of pious patrons have been made to it since d concil 349. 352. In optona grena Vpton grene as Ingulphus St Gutlac the tutelar speciall Saint of Crowland had and bath Woods and Marshes c. in the time of King Edward free and quit from all services e Hist 909 from the time of King Etheldred was the Seat of our Abby sayes he quit and discharged from all secular services and our Abby was quit and free from all secular services in the time of that King who was the lawfull Successour of the royall blood of the English and father of the most pious King Edward f p. 911. s 30 40.50 And againe a great part of the Marshes and Meadowes of the Seat of our Monastery saies he I demised for a certain yearely rent and other services to be done g 912. The Folcland of the basest tenure amongst the Saxons as M. Lombard which passed without writing was that which now we call Copy-hold at the will of the Lord h Glos terra exscripta whose condition as also that of those who held by socage was far more servile before the Norman entrance then in some times since before the services of all these consisted in fcasance in doing after in render by payment c. as the most reverend Judge Littleton of those who hold by socage Afterward these services were changed into money by consent of the Tenants and desire of the Lord viz. into an annuall rent c. yet the name c. remaineth and in divers places the Tenants yet doe such services with their Ploughes to their Lords i L. 2 s 119. Bracton calles the Copy-holder villein sockman or sockman of base tenure k L. 2. c. 8. others tenant in villeinage servitude indeed or villeinage since Richard the seconds time is by degrees rather worne out then abolished by any law nothing now is left but the name the last man which I have knowne claimed for a villein being Crouch of Sommerset-shire in Queene Elizabeths time l Dy. 266. 283. This too is Saxon English and preceded the Normans but was never favoured by the Law m Dy. 267. lit s 193. Forost c. 42. The Saxon lawes call the villain ðeoƿ mon or man ðeoƿ and ðeoƿe indifferently a servant man or servant not that freemen were not servants too as since they are both which are visible in that Law of King Ina If a Servant man worke on Sunday by his Lords command be he free and the Lord shall pay thirty shillings for a penalty if he worke without his Lords knowledge he shall lose his hide be whipped or his hide gild the price of it but if a Freeman worke that day without his Lords command he shall lose his freedome or sixty shillings n Ll. Ina c. 3.23.46.73.50 Ll. Aelfr c. 5. In that extract of the Lands of the Monastery of Crowland taken out of the Dooms-day Book by Ingulphus the Abbot we finde in Langtoft S. Guthlac bas c. viz. five Carues eight Villains * Barders sup 81. four Bord. and twenty having soc socham habentes 5 Carucatas it should be twenty socm habentes 5 Carucatas and in Bston c. There in Dominio one Carue five villains two Bord. and seven soem with two Carues in Soudnave slound two servants six villaines three Bord. with one Sochman having three Carues c. with much more of the same o Ingulthus Savil. 908. In the yeare 1051. Thorold of Buckenbale Sheriffe of Lincolnshire likely of the the blood a descendent of the former Thorold who had Lands in Buckenhale grants the Mannor of Spalding to Wulgate Abbot of Crowland in these words I have given c. to God and St. Guthlac of Crowland c. all my Manor scituate neer the Parochial Church of the same Town with all the lands and tenements rents and services c. which I had in the same Manor c. with all the appendants viz. Colgrin my Reeve and his whole scquele with all the goods and chattels which he hath in the same town fields and marches c. also Harding the Smith and his whole sequell with all the goods and chattels which he hath in the same town c. also Leftan the carpenter and his whole sequell with all the goods and chattels c. also Ringulph the * Ringulphum primum first and his whole sequell with the goods and chattels c also Elstan the Fisher and his whole sequell with the goods and chattels c. Also Gunter Liniet c. Outy Grimkelson c. Turstan Dubbe c. Algar the black c. Edric the son of Siward c. Osmund the miller c. Besy Tuke c. Elmer of Pincebeck c. also Gouse Gamelson c. With the same clauses to them as before The conclusion is these my servants servos and their goods and chattels with all

whom death with so much infamy so often really before their eyes cannot fright will never think any torment whatsoever where life is left them though with more misery then can be spoken terrible But it is thought horrible and grievous that a mans life which is invaluable in the law should be taken away for a thing of nothing for 12 pence Which says the most learned Knight is the antient law of the English Nay for lesse by the antient law of the English I may say so King Aethelstanes lawes begin with thieves and speak thus First that man spare no thiefe so I render it according to the words who in the manner having in his hand taken is above twelve yeers old c above eight ponce n c.r. either eight pence or twelve pence The law is full of equity this king gives a ram c. in the Preface as the Saxon worth four pence that which as Sir Henry Spelman sold heretofore for twelve pence would now be worth 20 or 40 s. in the Assise of bread long after the Saxons in the 51 of Hen. 3. eight bushels of wheat are valued but at twelve pence and although now the 12 keepes not the old rate but the modern yet things are prized in trials of life far below their worth and no man loses his life but where the thing stoln in estimate rises to more then many twelve pences That title of Cosroes amongst his others a king who hateth war may justly be given to our laws Peace the greatest blessing of this life and without which nothing else can be a blessing is everywhere provided for everywhere charged and commanded Peace is commanded to be kept in the Pallace or Hall of the king the forfeiture of the breach being the losse of all the offendor has and his life at discretion in the church the house field and town the mulct of wrangling was made 30.8 o Ll. Ina. c. 6. Ll. Alfr. c. 7. Ll Edv. sen c. 4. Ll. Etheldr c. 6 Every man was to give pledges heretofore of his good behaviour the violation of Faith so given was punished and is called breach of the peace Every breach of the peace was such violation Everymans house as the law since expresses it is to be his Castle He who infringed the freedome or liberty of the house called r●m soone by house breaking forfeited all he had and his life was to be at the kings wil p Ll. Edm. c. 6. Grith or frithbrice were the terms for breach of the peace King Cnut in his laws first wills that Gods peace and the peace of the Church be kept then his own q Ll. Cnuti c. 12.14 and again We must provide for peace or the amendment of it most desired by dwellers and most odious to thieves r c. 8. Amongst the Prerogatives of the West Saxon kings are these breach of peace house freedom ſ c. 12.14 The Statute called Westm the first speaks Let the peace of the Land be maintained in all points The first of R. 2. Let the peace be well and surely kept c. according to the Law of the Land In the title of the Statutes of the 50 of Ed. 3. are these words To the honour of God and of holy Church and quietnesse of the people Which used to be the title of Parliaments t ● Inst 9. The Statute of Hen. the 7. concerning Justices of peace has That the subjecti may live in surety uner his peace in their bodies and goods Inprimis interest reipub ut pax observetaer is a mixime of the Common Law affirmed by Parliament u 2. Inst 158. In all Actions for any thing done against a Statute law where the words vi armis are left out yet the Writ has contra pacem against the peace w r. 9.50 Every affraying as Mr. Lambard or putting in fear is breach of the peace The laws do not onely make orders for the maintenance of the peace but as to the execution of the charge have appointed general and particular Officers and Ministers to manage this part and to undergo this care The Lord Chancellour Lord High Steward of England Lord Marshal c. Justices of the kings Bench says Mr. Lambard had authority inclosed in their Offices for the conservation of the peace all England over The Justices of the Common pleas are said to be conservators onely in special places The Master of the Rolles was a general conservator by prescription Coroners and Sheriffs are to be conservators within their Counties Justices of the peace instead of the ancient conservators antiquated are especially warders of the peace so are Tithing men Borougheads Constables and petty Constables in their limits As the first of Ed. 3. x 1. E. 3. c. 15.4 E. 3. c. 2. In every County good men and lawful that been no maintainers of evil nor barretours in the Country shall be assigned to be Justices of the peace As the 18 of that king Two or three of the most substantial men with other learned in the Law as the 34. A Lord with three or feur of the most substantial c. By a Statute of King Henry the 6. The Justice must have Lands and Tenements to the value of xx l. by the yeer he is to be sworn duly and without favour to keep 13. R. 2. c. 7 and put in execution all the Statutes and Ordinances touching his Office As by the Iaws of all Nations civil Religion and the Priesthood have their priviledges and honour so no laws ever favoured piety and the Church more then these and this fully and so often that if it be made by any an objection of prejudice it cannot be denied it must be confessed by all hands Those of the Roman new creed have in every age very clamorously and furiously slandered our Laws not onely as short and imperfect but as unjust to be detested by all the faithfull y Becket in Ma. Par. 101. Such as without a saving the honour of God and of holy Church z Hoved. Savil. 492. are not to be sworn to against the faith as the Bishop of Rochester may be thought to mean a Graft 1187. The exemption of the Clergie taken away by the Laws of Clarendon where yet only the old Laws were restored was thought as legal an impiety as heinous as could be yet Bellarmine though a man more nimble then ten thousand Beckets durst not make it of Divine Right Jure Divine valde conforme is as much as he thinks it is Not of Divine Right that were too high not of Humane that were as much too low but very conformable to Divine Right which is a ridiculous conforformity and makes it neither the one nor the other Within five years in the time of King Henry the 2. there were above one hundred murthers committed in England by Priests and men within Orders so that it was time to take heed of these

6. And again there in the Chapter of the Maletot u c. 7. The ill Toll or Charge of 40 s. upon every sack of Wool is taken away where are these words We have granted for us and our Heirs not to take c. without common consent and good will By the Statute called de Tallagio non concedendo No Tollage nor aid was to be set or levied but by common consent w 34 E. 1. All new Offices with new Fees are within this Statute x 2 Inst 533. No man is to be charged by any benevolence which is condemned by a Statute as against the Law y 1 R. 3.2 He who judges things impartially must confesse the English ever to have been the most happy and most free of all people while they enjoyed the benefit of these lawes and are likely yet to continue ●s happy under them for the time to come But as some there are as is noted who will allow no authority but their own not reason it selfe nothing without themselves so some there may be rather for a Sect then the truth more willingly following a great name then reason chusing number rather then weight and worth carryed away with authority as they call it such as will yeeld to nothing else If any such there be I will please them they shall have authority with truth weight and worth together Not that I bring in other vouchers as if I refused those or thought them not sufficient who as have shown before are the true and undoubted Judges of the lawes In the Councel at Oxford of the English and Danes held in the sixt yeere of King Cnut The English and Danes are said to agree about keeping the Laws of King Edward the first Wherefore they were commanded by King Cnut to be translated into the Latine Tongue and for the equity of them those are the words to be kept as wel in Denmark as in England z Mat. West flor Hist l. 1. 311. Wigorn. 311. Although it is said the English laws * Gloss ver Lex Dan. were silent spake not in the times of the Danes which might generally be true yet in the reigne of of this King it was otherwise as appeares by his excellent lawes of Winchester full of piety and justice a Concil saex 569. These were the famous lawes observed by King Edw. the Confessour after many of the laws of K. Aetheldred many of those of the renowned Councel of Aeaham under the same Aetheldred are amongst them In the Epistle of King Cnut writ to the English when he was coming from Rome He saies He bad vowed to govern the Realms subject to him justly and piously and judgement in all things to observe At his returne saies Malmesbury he was as good as his word For all the Laws by the ancient Kings and especially by his ancestour Aetheldred given under penalties be commanded to be observed for ever which now men swear to keep under the name of King Edward not that he ordained them but because he observed them b Malm●b de Gest Reg. l 2. c. 11. p. 75. How much the ancient Englishman loved and prised the Common lawes is evident by what has been before said concerning the Magna Charta and the setling them And it is more evident by the odiousnesse which subversion and the subverters of the Lawes have lain under in all ages There is a Writ in the Register as before to take the impugners of the Lawes and bring them to Newgate c Regist 64. In the complaint of the Bishops of Henry the thirds reigne against the strangers Poictouins his favourites are these words As also because the Law of the land sworn and confirmed and by excommunication strengthned this was the Magna Chaeta together with justice they confound and pervert d Ma. Pa. 396. The Earle Marshall Richard complaines of these Poictouins to this King as men who impooy themselves to the oppression of the Lawes and liberties e ibid. 384. Stephane of Segrave the chiefe Justice is charged in another place with corrupting the laws and introducing new ones f ibid. 392. The same King is told by those Bishops That if the subjects bad been governed according to justice and right judgement of the land c. those troubles had not hapned The Statute banishing the Spencers the father and son has this Article To the destruction of the great men and of the people they put out the good and fit ministers and placed others in their room false and wicked men of their Covin who would not suffer right or law to be had and They made such men Justices who were not at all conversant in the law of the land to hear and determine things Empsons indictment runs Nor having God before his eyes c. falfely deceitfully and treasonously the Law of England subverting g 4 Just 199. The Articles against Cardinal Wolsey before mentioned begin Hath by divers and sundry waies and fashions committed high and notable and grievous offences misusing altering and subverting the order of the lawes His articles are there by the introduction said to be but a few in comparison of all his enormities excesses and transgressions against the Laws These Articles were subscribed by the Dukes of Norfolk and Suffolk the Marquesses of Dorset and Exceter the Earls of Oxford Northumberland Shrewsbury the Lords Fitzwalter Rochford Darcy Mounjoye and Sandys c. all which as those others taking subversion to be so heinous an offence must needs be imagined to esteem the Lawes highly Lewis of France invited hither by the Barons in King John his time in the entrance to his new principality is made to sweare to restore to every of them the good Lawes h Ma. Pa. 282. As others to maintain ad keep the institutions of the Countrey Those who desired a stranger for their master would not be governed by new and strange laws amongst the covenants of marriage betwixt Queen Mary of England and Philip the second of Spain there is one to this effect That he the King Philip should make no invasion of State against the laws and customes of the Realm neither violate the Priviledges thereto belonging i Hollinsh p. 1118. And amongst those covenants of marriage treated betwixt Elizabeth of most happy memory and Francis Hercules of Valois Duke of Anjou the same care and warinesse is had one of the conditons is That the Duke shall change nothing in the laws but shall conserve all the customes of England k Comd. Eliz. 338. The Lord Treasurer Burleigh the Earles of Lincoln Sussex Bedford and Leicester Sir Christopher Hatton and Sir Francis Walsingham were delegates for the Queen men too wise to tie themselves and others to preserve those things which are neither worth a care nor being The Statute 28 of Edw. the 3 l An. Dom. 1363. speaks thus The good ancient Laws customes and Franchises of the said Realm The

Hist Savil Edit 907. Sometimes the Chief Justice is called Warden of the Realm Vice Lord of England and Justice of England as the Alderman of England was most Honourable in the Saxon times So was the Justice after which was the same from the first time the word is heard of till Henry the third if we except Hugh of Bocland and Ranulphe of Glanville we shall not finde one of these Justices but he was a Bishop a Peere or at least of the Nobility of one of the illustrious families Aubreye of Ver Earle of Guisnes high Chamberlain of England Justice and as some Portgrave of London father of Aubreye of Ver the first Earl of Oxford which familie so Mr. Cambden justly is the most antient fundatissima familia amongst the English Earles as Matt. Paris was ready in the variety of causes exercised in them a In Sitph reg And of Geofrey Fitzpeter Then dyed Geofry Fitzpeter Earle of Essex and Justice of great power and authority a generous man skilful in the lawes allyed either by blood or friendship to all the great men or Barons of England b Id. in Johrege Henry after king son of Henry the second was chiefe Justice of England By the Statute of 31 of Hen. the 8. c c. 10. which ranks the publique great Officers The Lord Chancellour or Lord Keeper is the first man The great Chamberlain of England Constable Marshal and Amiral are to sit below him the Justices are accounted Peers and fellows of Peers Magna Charta sayes No free man shall be amerced but by his Peers and according to the manner of his offence It is observed As to the amercement of an Earle Baron or Bishop for the Parity of those who should amerce them when this Charter was made that the Justices and Barons of the Exchequer were sufficient Bracton as the most learned Mr. Selden cites him sayes Earles or Barons are not to be amerced but by their Peeres and according to the manner of their offence as the Statute is and this by the Barons of the Exchequer or before the king d 1. H. 6 7 v. D. Spelmver he Baron Scaccer All Judges sayes the same Mr Selden were held antiently as Barons which appears in an old law of Henry the first which is Regis Judices sint Barones Comitatus qui liberas in eis terras habent per quos debent causae singulorum alterna prosecutione tractari Villani vero Cotseti vel Ferdingi Cocseti vel Perdingi in legibus nuper editis sed perperam vel qui sunt viles inopes personae non sunt inter Judices numerandi e c. 29. The Barons of Counties who had free lands in them were to be Judges not common base fellows hence as Mr. Selden again are the Iudges of the Exchequer called Barons The black book of the Exchequer makes it manifest the Judges of the Exchequer before Hen. 3. or Edw. the 1. for thereabouts the Exchequer had its ordidinary and perpetual Barons were of the Baronage by these words f part 1. c. 4 There sits the chief Iustice of our Lord the King first after the King c. and the great men or Barons of the Realm most familiarly assistants in the kings secrets By the decree of king Iames g 28. Mai. 10. Jac. reg The Chancelour and under Treasurer of the Exchequer Chancelour of the Duchie chiefe Justices Master of the Rolles chiefe Baron of the Exchequer all the other Judges and Barons are to have precedency of place before the younger sons of Viscounts and Barons and before all Baronets c. there the degree of the Coif is called an honourable order the Serjeant is called by Writ The words used to be we have ordained you to the state and degree of a Serjeant at Law Vos and Vobis in election of Serjeants and summons of Judges to Parliament ever applyed to persons of quality are used One Statute speaks where he taketh the same State upon him h 8 H. 6. c. 10. And another At the Creation of the Serjeants of the Law i 8 E. 4. ● 2. Which is observed ever to be applyed to dignity k Rep. 10. Epist The Patrons of causes called pleading advocates and Narratores Counters of the Bench or Prolocutors of old as Paris l Hist 516. vit Abb. 142. all Lawyers were antiently of the Clergie And those now who are so curious for neatnesse of that order may thank their predecessours for that rudenesse which is so unpardonable by them in the Latine of the Law No Clerk but he was a Lawyer saies Malmesbury in * Lib. 4. Ed. 1. Savil. 123. William the second we read that Mr. Ambrose the Clerke of Abbot Robert of St. Albanes most skilful in the law an Italian by Nation amongst the first of the lawyers of England for time knowledge and manners is sent to Rome m Vitae Abb. St. Alb. 74. Adam of Linley is said to be Abbot John the 1. his Counsellor in all his weighty affaires a curteous man honest and skilful in the lawes n Ibid. after Archdeacon of Ely for most of them held Church-livings he was after speciall Counsellour and Clerk saies this this Monke to the Archbishop of Canterbury Stephane John Mansel of whom we read so much in the History of Hen. the 3. is called the Kings speciall Councellour and Clerk as much as Atturney generall since o Ibid. 142 Hence it is that the ancient habit of secular Judges was the same and yet is with that of the Ecclesiasticks p D. Wats Gloss ad Paris William of Bussey Seneschal and chiefe Counsellor of William of Valentia would have losed saies the same Monk the staies of his Coife to shew his Clerkly tonsure his shaven crown q 984 985 Hist And again he sayes The Clerks who such Writs dictate write signe and give counsell r 206. A●●it They are restrained by Pope Innocent the 4. his Decretales who forbid any such to be assumed to Church dignities c. unlesse he be learned in other liberall Sciences Philosophy and Divinity were laid by as the words there the multitude of clerks ran to the hearing of secular laws ſ ibid. 190.101 Hugh of Pa●shul clerk is made justice of England by Hen. the 3 t Hist 405 So was the famous John Mansel before Keeper of the great Seale There have been seven Wardens of the Kingdome or Viceroyes of the Clergy twelve great chiefe Justices neere 160 times have Clergy men been Chancellours about 80. of them Treasurers of England all the Keepers of the privy Scale of old the Masters of the Rolls till the 26. of King Hen. the 8. the Justices of Eire of Assise till Edw. the third were of that order u D. Spel. Epist ad conc●l men whom the Lawes were beholding to w 1 Inst ●ect 524. rep 5. C●wd 2. Just 265. else they had been told

of it Many great Families have been advanced by the Law many of the best and noblest thought it no disparagement to professe it Some of our illustrious names may be met with amongst the Serjeants and Apprentices of our yeere books as well as in the Heralds books If like Boccace his Ghost all those who laid the foundations of their houses who first broke through the miste of time wherein they and their ancestors were hid before who first shewed their names to the world were to appeare before us in the habit of their sprouting up with all their sordid cheats with all the crafts several close arts of thriveing used by some displayed and revealed all the false sleights of the Town and Country laid open where every peny is got oftentimes too too dishonestly by the unworthiest sins a man can commit how would the gawdy off-spring curse his own rise the branch be ashamed of its own root vertue alone is honourable mony can neither make men wise valiant nor good Arts and Armes onely and really innoble that of all others most deservedly whose object is meerly the good of mankind which imployes men continually for the publique for the preservation of the people pacique imponere morem The souldier as Cicero may once profit his Country the Lawyer always Our most Reverend Judges and professors of the Laws have in all ages * Anciently part of the Persian kings title The ophyl risen with the Sun and given eyes to the blinde night But I have offered my selfe too far to ingrateful dangers Here I will stop and give over Not that much is not left out which might have been said of the sacred Law of the Land and the administration of Justice here Much is left out and I wish some more happy and more able would undertake the whole It is enough which again I may protest that I speak not in the midst of Fetters and that I have defended and the defence could not but be easie truth onely for its own sake yet I believe he who knows most who commands most in language and Sciences who pretends justly a title to the kingdome of the barre or schooles with all his mouths and tongues if he had more then one hundred could not do full right would be short and wanting here Not in our right hands as is said of those souldiers in Curtius but in our Laws our helpe our hope and liberty lie We need not aske for propriety not for peace not for order concord security not for wealth nor honours one wish comprehends them all carries all these with it the safety of the laws is all these propria haec sidona We have seen at large what excellent blessings we have received from the Law these blessings may be everlasting if that be made so I know nothing it ought to yield to and our Parliaments have thought so but eternity and the change by that FINIS The Table A. AIde to Knight the eldest son c. 127 Alodium alodiaries 129 130 c. Aelfred the King not the founder of the Saxon policy 85 86 Aequity and judging according to equity how to be understood 31 32 Aescuage 127 149 Aldermen amongst the Saxons 98 B. Barons Norman and English ever lovers of the Laws 107 280 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Bocland 140 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 Britannie and the Britains under the Romans 71 72 73. The Civil Law the first Law heard of them amongst them 73 74 governed by Kings 72 C. Casars Commentaries l. 6. concerning the Gaules and their wives 75 L. Chancellours Oath 65 Chiefe Justice the greatest subject 159 288 289 Church highly favoured by Lawes 273 274 Circuits of the Iudges 163 Civilians what opinion they have of the Pandects c. 226 Clergy men heretofore Lawyers 292 Cnut the king composed the law called the law of St. Edward 88 Counsellours 175 Courts of Iustice are of Saxon original 94 95 96 Courts since 159 160 c. Courts standing and ever open 165 166 Customes unwritten why 89 D. Delayes odious in the law 169 170 c. De rerum venditione that constitution set forth at Yorke 74 Drenches 143 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Duilian ba●k 218 E. Earles amongst the Saxons 98 Edilinges 140 Edward the third first changed the Welsh lawes 76 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 200 Eleutherius his Epistle to Llever Maur a forged piece 73 F. Faulehen what 124 Feudes 121 Firdfare 149 Foleland 129.152 Forstale 134 Frankalmoigne 127 Frankleudes 129 130 The French Policie and ours much alike 126 Fyheren 124 Frilinges 126 Fundi limitrophi 119 G. Gavelkinde in Germany 125 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 The Germanes and their institutions have over●●owen all Europe 78 79 80 Their lawes called salic more antient then Justinian 81 Glebal gold 120 Adscriptitius ibid. Grithbrece 134 H. Henry the eight imposed wholely the English lawes upon the Welsh 77 Heinfare 145 Hereban 150 Herefare 127 143 Hereot 127 14 High Court of Iustice 97 159 Hotoman his censure of Littleton 240 I. Infangennethiefe 134 Iudges not to decide causes according to discretion how to be intended 32 33 Their authority 199 c. Assistants to Kings and Parliaments there heretofore Barons 290 Honoured 292 293 Iuries tryals by them not brought in by the Conquerour 92 93 Iustice to obey laws 33 K. Kings of Macedon ruled by law 24 Of Mexico might not be touched 45 Kings of England their Oath 111 Might free men from the Firdfare Burgbote c. 151 Kisses given to Princes 118 L. Laudamentum 124 Laws the enemies of them 1 2 Necessity of them 18 35 Law what it is 34 35 Force is not law 23 24 25 Nor the arbitrary will of man 27 28 Why laws were written 30 31 How antient 35 Law of the land in Magna Charta is not waging law 50 51 Common Law 75 excells and may controle Statute laws ibid. Custome and expirience begot it 60 61 It is known and to be found in books 60 65 66 67 Its antiquity not Norman c. 64 c Laws of Hoel Dha and the Welsh 76 77 Salie Laws 86 81 82 The Saxon laws 84 the several kinds 88 Our fundamental laws Saxon 90 91 known by the name of St. Edwards laws 100 101 102 104 setled in the great Chaster 108 110 then called Common Law Letters of the Ionians and Phaenicians heretofore neer the same 37 Loudes 131 Liberty what is 45 46 c. Littleton vindicated 240 241 Lombards their laws 84 M. Manners and priviledges belonging to them amongst the Saxons 133 Method of our law 243 N. Normans themselves ever zealous for the laws of St. Edward 135 107 108 They as some received their lawes from the Saxons 112 O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 80 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 120 Operae liberterum 119 P Papinian Judge at York 74 Papists ever enemies to the law●s 67 Parkes 136 Plea of Pinneden under Will the 1. 104 Pleadings 209 Polydore Virgil 92 93 Propriety 2 3 R Rectories and glebe-land whence 151 Reliefe 127 131 147 S Salbuch in Germany 83 Saxons their policy and government 85 86 Sac. 134. The Saxons subverted all things 77 78 Saxon tongue 215 216 217 Sicyon never changed her lawes in 740. yeers 53 Slaves thrown to Lampries 252 Soc 134 Socage 129 Spaniards retain the German customs 128 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 120 Subverters of the laws 66 67 T Team 134 135 Tenures all Europe ever 118 Reasons of them 119 120 All lands held of the King 149 Terms of the law 213 c. Thanes Thenes 137 138 c. Tol 134 Tribonian censured by Perrinus 226 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 V Vassi dominici 125 Vicedominus 99 Villeins 153 154 Vtwara W William the 1. his entry not so violent as is thought by some 143 144 Writs whence they issue 162. See 207 c. anciently the Kings letters there No man to answer or be called in question without a Writ 209 FINIS

FOR THE Sacred Lavv OF THE LAND By Francis Whyte 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed for W. Lee D. Pakeman and G. Bedell and are to be sold at their shops in Fleetstreet 1652. To the Reader I Have spoke a little in some of the leafes beneath of the fulnesse of cur Saxon English Tongue of its goodnesse and worth I will shew here that I may not seem to talk only how easily we may utter our thoughts and wills the drift of our minds without borrowing of our neighbours and without going about nay and often without waking the sleepie grave and breathing life again into words hundreds of yeers agone dead and forgotten We need not delue for buried gold nor look back for words frightfully old as they may goe at the first sight such as would be dreadfull in their rising Were we but ready in the speeches of the sundry Shires Towns Boroughs and Thorps of our Land of the West and North from whose broad mouthes as they are thought we may gather enough though what we gather thus is wronged in them every day more then other if all these were brought into one heap and rightly laid together we should finde our selves rich within our selves without taking up on trust The most learned of the wise men heretofore Aristot de gener animal l. 4. tels us that he that is not like those who begot him like one or other of his house before him is to be wondered at as a thing against the kind There are those froward ones now who as if the blood of their Forefathers were more foule then the sin of our birth and its guilt hate nothing more then them not their outside onely but their goodnesse which never any breasts were fuller off is loathed by them as are loathed not onely their speech understanding and lives but their lawes and beliefe sleighting all things before themselves as if nothing were well laid hitherto but we were to begin the world from the bottome upon another groundworke like some sonnes of another adders teeth or of our mother earth lately sprung up sons of the warmer Sunne and slime risen but yesterday As to the Laws of our Saxon English that I may deale within my own reach onely For from those as from springs of wholsome waters the streames of our later Laws spread Whoso will read them ore with a stedfast eye will not meet the work or hands of highlanders but all things as far otherwise as Heaven and Hell are asunder When he shall looke on the strength and height of the walls the smoothnesse of the walks the goodnesse of the whole building he must see God has been there or men of heavenly off-spring the sonnes of God A worshipfull Bishop amongst our greatest for all kinds of knowledge but no friend to the Halle bewailes us in this That of the comming in of the Saxons hither of their first workmanship of the setting up and frame of their Kingdoms the wisdom which upheld them of their deeds of the field and their home Laws worthy to be everlastingly kept in mind to outlive the day so little is now in being to be found It cannot be withsaid that through the retchlesnesse of men to say no worse in the great earthquake of King Henry the eighth stones did not fall alone many of our English Writers were overwhelmed in the breaches hid in their dust and the mists and darknesse must be the thicker after This is true and we cannot be enough sorry for it yet besides the hoords of books now left those which have not seen the light and likely never shall and which have and are in every mans hands can teach us not sparingly no small deale of that which is bewailed as lost forever And if there were lesse which I hope shall not be the skill of a cunning hand may be seen by the shortest stroke But blesse me I am got abroad in open sight and must make a stand The Readers leave this cannot be helped must be asked to goe on I am told this is looked for from men unknown and untrusted how ever from such as come out alone such as want their throngs of wits making room before them and bespeaking heartily the meinies smiles who must be taught how to like and whom I aske my leave then but come on t what can I will not buy it too dearly I will not sell my freedom for it I wish the good will of all men and that this child of mine might have a faire welcome into the World but I will not throw my selfe at any mans feet nor licke up his spittle for the kindnesse He whose end is nothing else but the good of others should not feare himselfe he ought to stand upright above this lownesse as indeed he is yet am I not so idle to thinke my selfe some merry Knight of the Booke and that my over loving Witch by her mighty spels has kept these fields for my wonders that this inthralled Queen cannot be freed but by my arme and that I was born for the hit If some great undertaker such as the World would freely and willingly follow had fallen on here which every Englishman is bound to how learned soever I had not stirred I had stood still somewhat more in the shade Now all that I shall get by this light will be the loosing of other mens tongues upon me if I come off with a few short blowes of dulnesse heavinesse or weaknesse I am well the best of men such as the wildest Heathens would stick amongst the Stars are stung by some what is the most unmanly unthankfulnesse the hallowed ashes of the dead are cursed and torne up of the dead who living held the Heavens up with their shoulders made the Sunne shine and the clouds raine so farre is this bitternesse from being ill thought of backbiting is the token of a good man he that would not be ill spoken of must fly from men He alone who hides himself never shoued up and down in the streets is wise But we live not onely for our selves something we owe to mankind more to our own blood to our mother England And as many other men easily outgoe me so there may be those who may make but slowly up who may be left behind in so many houses of flesh there may be undersoules to mine It is not any overweening which has thrust me thus farre The undertaking fairly to heal the unbeliefe of some weak ones for I am not so brainlesse to think that those who side and hate for their own sakes will be shaken with words that such a stubbornnesse can be ore come who without any ill within any unsoundnesse of their own are led blindfolded by others whom they it may be have trusted too unwisely who would drive on to the utmost that hatred is not heady boldnesse to be chidden by any I would shew these forlorne ones how sadly they lose themselves how good and even

the old rode is how dark and uneven their own by-paths how in the first they may finde the holy footsteps of their forefathers and the wary steadinesse of their treading in the last nothing but winding and giddinesse nothing but everlasting wearynesse where as is said of the old Ghosts below they shall wander for ever more flitting then smoke and sparks of fire which however hindred by the winds striking them down climbe upward on wings unseen and at last are swallowed up and taken in to their own home If these be as willing to heare others as they are empty themselves he who sayes least may win them and so be that they will bow at all they may meet with stronger leaders of the highest worthinesse such as it will be no shame to them were they more and better then they are to yeeld to if yeelding it selfe be not a shame where we run heedlesly upon things forbidden which we should shun where we scorn to own and as it behoves us forsake our oversights which now with too many it is If nothing else will take here this may I bring a mind free from love or hatred I am sworn to no mans words I am bound to no man I may say it and believed there is not the least tie upon me which might sway me fowly from the truth if I stood not so fast as I should doe So then as I am not worth the sin nor any man else I am not bought I have no wicked no unrighteous score to be wiped out Nothing but dearest truth has drawn me forth and that without the trimming or gilding of any mans hand or wit has its kindly lovelinesse like Heaven above it shines bright from its own beames Faults of the print LIteral faults in words where there may be a mistake of one letter for another a letter out of rank too much or too little I leave to the mercy of the reader where a word is left out or too much or changed and disorders the sense there I restore the place Of the first kind are p. 72. Cafariae for Caefaria p. 118. Souldierie for Soldur●● p. 120. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 126 Rdnerret for Banneret p. 85. srotera for sno tera p. 87. 137 the Saxon ƿ in words should be r p. 146. has gae ul for gaful geþtnege for gepitenege p. 217. Aerenrdac for Aerendrac gegmired for gesmired p. 147. Caute for Cunte p. 133. l. 15. has Inland for Jnland p. 187. ARIS for AERIS DVCTIO for DVCITO p. 219. Comicas varco for Comic as Varro p. 220. si is left out p. 269 has Bribeing for Bribed c. of the second kind p. 17. l. 7. blot out or p. 79 l. 12. for which read what p. 87. l. 1. after p●acr adde has p. 99. l. 6. after Aelfred adde this l. 10. for our read one 114 l. 20 blot out unto 128. l. 23. wherein l. 15.17 for it read them p. 134. after Charter adde to 171. l. 9. Tenth read True l. 12. read we will p. 178. l 1. place and after uncle 181. after Conflicts adde are there 187. l. 9. Many read May. 194. l. ult blot out not onely 260. l. 27. after is adde in 191. after Rome adde which was 176. l. 17. for a read as a. 146. in the Margin to Saxon is adde Mancus 131. in the marg to Cheding adde Ley. 117. with cast read with a cast p. 110. l. 3. blot out cast away The Preface I Take not upon me to censure this age by the wisdom and constancy of those which have gone before perhaps when we have attained to the perfection of things it is not easie to make a stay naturally where we cannot proceed we must go back there may be an unhappy weaknesse of men not to love long be the object never so excellent a weaknesse born with us and which Nature onely is to be blamed for I should think so if the Nation were a weary of their old Laws and this were a disaffection of the whole body We know the five thousand of Athens those who would be called so go for so many were but four hundred The full enemies here whose hatred to the Laws is as antient as their name and being are the dregs of the basest of the people neither considerable for number nor worth No more the body of the Nation then the smallest rotten part is the whole made up chiefly of Anabaptism or Levelling referring all things to themselves willing to embroil every where of restlesse spirits and not likely to be satisfied with any form of Government nor with any Laws it being Order and Law of what kinde soever they strike at and undermine Breakers of all Lawes and enemies of the league of mankinde whose fanatick giddiness is such Homine imperito nunquam quidquam injustius Qui nisi quod ipse facit nihil rectum putat they will like nothing they do not set up and will ruine every thing they do not like with whom Lex una legem nolle whose principle of Anabaptism it is That there shall be no principle who would live as they list a Vid. Sleid l. 10. But should these mens discontents prevail what would become of the next age there being the same dominion of inconstancy still the same irresolution must pursue the posterity If we be more just and righteous then our forefathers it will appear by our actions but if they be irregular we must be bounded by rules Yet to these wicked heads who abhor all Law b Sleid. ubi sup condemn Magistracy deny propriety and are pleased with nothing but that communion which beasts enjoy in their wildness It is as great an absurdity as any of theirs to talk of Law unlesse it be first made plain That there is any dominion or propriety which may make that Law of use For if according to these Brethren whose dreams are Oracles there be none then are we alwayes in the state of war unles all men will be contented to gather crums under a King John of Leyden's table and the strongest arm carries all For the Leveller a neer kinsman either we know not yet which is the most likly his ful meaning Or he is not got past the old Agrarian Gauel-kind so often contended for almost to the destruction of the then but budding Rome by the Tribunes there Where it was the great reward of seditions that all distinction being taken away no man might know himselfe nor his So Livie in that speech made for the Consuls M. Genutius and P. Curtius Lib. 4. against Canuleius the Tribune and his Lawes However our Leveller is too unreasonable to fancy such equality of Lands and Honours it being against the Law of Nature which made some more wise and ingenuous more resolute and adventurous others blockish dull and stupid some as if of purpose fit to command others to obey It is highly injust too

administrationis necessitatum publicarum tanto plus sibi arrogat in legibus interpretandis we may say abolendis The more unskilfull any man is of government and the publicke affairs the more will he arrogate to himselfe in interpreting or abolishing lawes The pride and selfe conceitednesse of an ignorant as it is commonly the greatest pride so it is the most dangerous whose suppositions at the most are the great arguments and whose imagination not demonstration if it must prevaile no foundation can be so fast but it must be shaken a weather beaten ship in a winter sea may be our emblem every day tossed and bruised betwixt shelfes and rocks without an anchor and where never any unhappy lost men could find a haven For the sacred Laws of the Land CHAP. I. Of Law what it is It 's Antiquity and necessity of Liberty LAw is defined by our Authors and others to be that which commands those things which are to be done Grot. de jubel Sir Hen. Finch 1. and forbids their contraries To be the rule of moral acts obliging to what is right An art of well ordering a civil society It is the conservation of justice which is A constant and perpetual will to give every man his own Bract. l. 1. c. 4. Just instit Therefore Cotta well denies Justice to be there where there is no right The precepts of Law are as Bracton to live honestly wrong no man De nat Deo 1. give every man his own These were the words of Justinian a Instit l 1. tit 1. long before The Law saies the Glosse intends onely this That humane society and that conjuncton without which men cannot live together may most commodiously be conserved This is its end These precepts or Laws commanding our Saviour comprehends in one rule Do as you would be done to Jus is à Jovis nomine Presidents have onely so much of Law as they have of Justice b Ch. Just Hub. 270. Those and Laws are built upon reason and Justice Law and Justice are insepable Force then which is said to be when any thing is done injustly with no right against the free will of another When a man requires his own prosecutes his right but not before the Judge is not Law c Bract. l. 4. c. 4. Force and Law are opposites d In Orot pro P. Sextio Horace notes the fiercenesse of Aebilles thus * See chap 2.137 here Iura negat sibi nata nihil non arrogat armis By these two contraries it is said is humane life a great way distinguished from the life of beasis e Cicero ubi supra l. 4. Arrians speaking of the Macedon kings say non vi sed lege regnum tenuerant The illustrious Viscount S. Alba● meant as much in his first Aphorism where he sayes in civil society either Law or force prevailes In his judgement meer force those are his words is the fountain of in justice f Augmtnt scient 690. This of the Barbarian That is most just in prosperous fortune which is most forcible is not so barbarous and abominable as another of a Pope g Bulla Clement 13. sentencing the Templars thus Although of right and Law we cannot yet according to the fulnesse of our power we condemn the said Order As one although you may with force rule your country and parents and reform things amisse yet is it unseasonable especially when all changes portend slaughter flight and what else is histile h Salust 48 In our Law Force is said to be as before when one demandeth that which he thinketh due to him not by a Judge sometimes armed sometimes not i Bract. l. 4. c. 4. We may read in our old Lawes In the times of the Danish kings right was buried in the realm such are the words the Lawes and customes slept together in their time wicked will force and violence rather reigned then judgement in the Land k Ll. Edv. con●●ss c. 16 de invenri●●e murdri I would not be understood to speak against publike force such as arms the lawful Magistrate to act legally in the execution of the Laws Thou shalt not kill and that other Text Whosoever shall shed the blood of man do not tye up the hand of Justice By several Statutes which it would be tedious to repeat I might shew what opinion our Lawmakers had of injust force which onely deserves the name of force The Statute forbidding Armour l. 7. E. 1. has these words and all other force against our peace Peace the contrary to force is the onely darling of the Law another Statute speaks thus No man shall come before the Iustices or other of the Kings Ministers doing their Office with force c. Except c. and upon a cry made for arms to keep the peace m 2 E. 3. Power ought to follow the Law not to go before it n 3 Inst 160. As Britton We will that all men rather use judgement then force o Britt 116 judgement and Peace go together Fleta upon that command of the Statute Westm the 1. That the peace of holy Church and of the Land be well kept goes on in the words of the Statute and it is a good consequence That so common justice or right may be done to every man p Fleta l. 1. c. 29. Britton unites Peace and Law in another place as fully Peace says be cannot well be without Law q fol. 1. And indeed where force gets the authority and reputation of a Law it is like the unnatural blaze of comets whatsoever the height be the effects are commonly fatal more feare then love is given it And as force cannot as little can the Arbitrary will of man be Law Laws cannot be just unlesse they be certain It is the best Law says the illustrious Viscount which leaves least to the arbitrarinesse of the Judge r Aphorism 8. We are Judges our selves of our own inconstancy how often we disagree with our selves what repugnancies there are daily within us how we are carryed away after any thing that is new and which we have not at all experienced not seldome without repentance enough commonly our wits being but afterwits every man is his own Phaeton his passions and affections never so disorderly oftner command then his reason so that sometimes he is rather a Geryon or Chymaera then one man The first act of our understanding which is a pure and simple apprehension may want reason it being not yet raised and the soule as it is clogged taking the beginning of it's understanding from the senses it takes such impressions as are offered to them and is not it self rushes furiously and rashly upon things ill represented and as ill understood without any reflexion upon Reason which we call Judgement or deliberation And not seldome where the will is thus impetuous force and violence are seconds to it This made Aristotle say That those

resolved by all the Judges of the Court of Common Pleas where a new Court was erected as in the 31. of King Henry the eight To heare and determine according to Law and Custome c. or otherwise according to their sound discretions That clause was against Law k 6. Jac. B. C. 4. Jnsti 245. Miser scrauitus ubi jus vagum c. Where Lawes are written the Magistrate knows what to command the people to obey where it is otherwise the Law must necessarily be Law errant wandering uncertaine unknown which is a miserable nay the most miserable slavery and become nothing but shadow and name Cicero makes it Justice to obey Lawes l de leg 1. Vlpian will have Antiquitie to be instead of a law or as a law instead of a constitution instead of consent m Dictum l. 1. sec ult de aquae pluae arcend Plinie Secundus writing to Trajane as the manner was when the case exceeded the termes of equity resulting from the law to have recourse to the Emperour for advice upon the Honourary usually given by the Buleutae or Decurions at their admittance into the Court. The Emperour answers him out of his religious as I may call it observation of the law Whether all the Decurions chosen for every City of Bithynia should give it or no generally he could not set downe But saith he what I thinke to be most safe is to follow the law of every City n Lib. 10. Epist 13.14 To Plinie next question whether the Censours might choose into the Senate of one City Citizens of other Cities yet of the same Province The Emperour writes backe o Ibid. Epist 116. The authority of the law and long custome usurped against the law might draw thee divers waies This temper pleaseth me that for what is past we innovate in nothing but that the Citizens of what Cities soever although against the law taken in continue but for the time to come the Pompeian law be observed Bracton with us would have that which use hath approved to be law The Statute of Merton saies of the lawes of England Hitherto used and approved The Court in the Lord Cooke uses that of the Emperours Honorius and Arcadius The usage or manner of most faithfull antiquity is to be kept p Rep. 4. Epist 78. there is the edict in Suetonius recited * This Edict was against the Rethoricians by the Censours Gell. l. 15. c. 11. vide Sueton. de Retor Those things which are done besides the manner and custome of our forefathers neither please nor seem right But to make it more visible that antiquity ought to beget a reverence toward lawes Let all Histories be searched you will meete with them wheresoever you finde men civilized Nay this as it showeth the antiquity beyond all exception so it makes the necessity of law apparent That notwithstanding the often intercourse of angels and the daily and continuall messages by Prophets the watchmen of the Iewes the great wisdome did not thinke it fit to leave them without lawes writ with the divine singer and published by God himselfe in which as well as in their circumcision and rites of religion they were preferred as in another glorious prerogative before all other nations It is observed before the law of God there is no mention of law nor in any before Moses nor in Orpheus and Homer since the Greekes long after borrowed many things from the lawes of Moses as the Romans again from them ten of their tables the other themselves added who could scarcely live twenty yeeres without a certaine law q Li. 2. sec ex actis deinde legibus de orig jur Solon cotemporary with Craesus and Gyrus is said to be the borrower and Diodorus Siculus the authority vouched r Lexi ju civ lit Lex who names Moses ſ l. 2. c. 5. but not as if hee knew him much he speakes of his lawes which saies he he pretended to be given by Abiao Jao as the Greek whom they call God he tels us Solon travelled for the lawes of his Common-wealth nay and the most renowned of Greece for wisdome and learning as Orpheus Musaeus Daedalus Homer Lycurgus Piato and Pythagoras but into Egypt t Li. 2. c. 6. and again Lycurgus Plato and Solon brought many lawes taken from the Egyptians to their Common-wealths by the most ancient friendship and mutuall traffick betwixt the Athenians the most ancient of the Ionians and the Phaenicians from whom Linus and Orpheus are said to have received much u Vid. Grot. Annot. in lib. de verit 23.38 Nay by the affinity betwixt the Ionians Phaenicians from whom the Ionians had their letters as the others theirs from the Iewes whose tongue and dialect was the same with the old Hebrew w Voss G●ammat l. 1. c. 10. Grot. dc ver annot 15.16 besides there might be Proselytes amongst these Phaenicians nay some intermixture of Iewes especially neer Sidon and Tyre The Greeks might easily come to the knowledge of many things in the Iewish laws as Herodotus x In Terpsichore 135. The Phaenicians who came with Cadmus into Baeotia brought into Greece much learning as also letters the Ionians having learnt those letters of the Phaenicians used them with a little change I have seen saies the Historian at Thebes of Baeotia in the Temple of Ismenius Apollo Cadmean letters cut in certain Tripodes very like the Ionians The Egyptians had their learning from the Patriarchs after Noah chiefly from Abraham Joseph Moses c. who conversed with them as their posterity did after y Vid. Mentac Eccles c. 3. Before Ptolomy Philadelphus and the translation by the Septuagint it is reported that Theopompus an Historian inserted something of the sacred Scriptures into his story for which he was distracted and continued so till it was spunged out z Vt. Euseb de p●aepar Evang. c. 5. Hesi●d in Theogon Ovid. An●xagor as Epicharm Plutarch The Greekes and the Romans in imitation of them writ plainly of the chaos creation of God whom they called the supreme mind or divine understanding that all things were made by his word nay and of the Dove sent out of the Arke a V. Grot. ib. sup in li. 1. more directly to the purpose whence the Greekes had their Laws The most ancient Attick Lawes had their originall from the Lawes of Moses as appears by the Law of killing the night-Theefe b Gell. l. 20 c. 1. By that of the Heires Females Thus in Terence his Phormio * Act. 1. Seac 2. Exo. 21.24 Levit. 24.19 20. de Talione in Tabvlis Lex est ut srbae qui qui sint genere proximi Iis nubant Et illos ducere eadem haec lex jubet He that will search for it saies Grotius shall find more as the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the Feast of the Tabernacles that that the High Priest should marrie only

every paultry Chafferer for smal Wares and a plaine wit with modestie is more profitable to the government then arrogant dexterity l Thucyd. l. 3. In the glosse upon Justinians Institutions to set up Lawes and pluck them downe is called a most pernicious custome in many places as there declared so by Plato and Demosthenes m f. 28. The Lord Cooke his judgement of the Lawes of England is That having been used and approved from time to time by men of most singular wisedome understanding and experience to be good and profitable for the Commonwealth as is there implied they are not to be changed n P●af to the 4. rep To which purpose he recites there the resolution of all the Barons of England in the Statute of Merton refusing as the King and his Counsell doe which the Lord Cooke o 2 Just 98. collects of them out of the 26 Epistle of Robert Bishop of Lincolne to the Arch-Bishop of Canterbury to legitimate the antenate or bastard eigne borne before marriage with this reply in these termes And all the Earles and Barons with one voice answered That they will not change the Lawes of England which hitherto are used and approved p Stat. Mert c. 9. what is lesse then change the same Lord Cooke likes not correction of the Lawes It is an old rule in Policie and Law so he that correction of Law bee avoided q 4. rep Pres which some will thinke is over-done a streine too high yet it has its reason Lawes are the walls of Cities to be defended as walles no caution can be too much like the Soveraigne of Mexico they are not to be touched But had our Laws or others been composed not only as they are by the most solid wisest heads of all the ages past but by immediate conveiance from God himself pronounced with his own voice or delivered by an Angell to us One word Libertie specious Libertie more admired then understood with which of late Laws are idely imagined inconsistent were enough to cancell and blot them all I am unwilling to shew here how much and often but how seldome to an honest end for the most part in the head of a mischief this word this found or handsome title for it is no more has been used It is most true all Lawes are inconsistent with this Liberty as that 's inconsistent with any Government whatsoever The eminent Patron of it was a Jew Judas of Galiles author of the Sect who as Josephus r L. 18. c. 2. agreed with the Pharises in other things but on fire with the most constant Love of Liberty they beleeve God is onely to be taken for their Lord and Prince and wil more easily endure the most exquisit kinds of torments together with the most deare to them then to call any mortall Lord. If it might have beene permitted they would have been free enough no Tax Tribute Custumes nor Imposition would they pay but not out of that authority of Deutoronomy which is pretended but no where to be seen Non erit pendent vectigale There shall not be any paying Tribute amongst the Sonnes of Israel There are no such words nor any to that sense in any of the received languages 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are the Greeke words as our English amongst the Daughters and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the place signifies not one who payes Tribute but one initiated in the mysteries of the Paganes by them called sacred s Orig. Eccl. Tom. 1.1317 yet had this Heretick as all others ever brag of it Scripture authority from this Booke t Deut. 6. and with the words Thou shalt feare the Lord thy God and him onely shalt thou serve he was fortified which conclude nothing Tribute being paid under the Law as the price of redemption of the first borne and in many other respects dispersed over the Law To men too and in relation to government manifest by that in Samuel u 1 Sam. 17 The man who killeth Goliath the King will make his fathers house free in Israel This the Georim and Epimicti the Posterity of the Cananites and of those which came up with them from Egypt did not onely pay but the Israelites also as is cleare by that text and this That Solomon made Jeroboam ruler over all the tribute or burthen of the house of Joseph w 1 Reg. 11 As others were over the rest of the Tribes Adomiram being said generally to be over the Tribute x c. 4.6 Though Judas inturning the people after him and his Libertie as it is called with his Sonnes perished yet the dregges of his sedition were gathred together in the Castle of Massada by Eliazar the Nephew of this Galilaean with the same obstinacy not to call any man Lord they had their beastly kennel fired about their cares and after some exhortations to one another not to esteem their lives above their deare Liberty they fall upon their owne swords y Joseph l. 7. c. 28. The Jewes of late have made some change with their borderers with their next marchers this as before is become Anabaptisme now of which some of those of Rome who will be any thing rather then stand out where they may doe mischiefe fall not much shorter Christ as Cardinall Bellarmine freed his Apostles from all earthly subjection So that therefore they were subject of fact not of right To passe by all these there is not that fulnes in the word Liberty which is expected Cicero makes it a power to live as we list z In Paradox which cannot be in any government or society nor in any the most retired exile of our selves from mankind if at any time we have the shortest commerce or conversation with others The institutions define liberty to be the natural faculty of any man to do what he pleases a Justin J●stit 31. unlesse by force or Law he be forbidden which as the glosse renders it is a power given by nature to do what we will unlesse one more potent hinder us As Scipio hindred Hannibal yet was Hannibal free still Or that the civil Law of our country forbid us b Et libertas Which last is explained thus Cicero sees his destruction contrived by Clodius and hanging over his head he desires to preserve himselfe by prevention and to kill Clodius that he may free himself from the danger but dares not as I may say either reverencing the Lawes as a good and a just man for he is injust who do's justly because of the penalty annexed to the Law or fearing that penalty as the words yet is Cicero free It goes on We call that liberty which is just and consentaneous to the Laws and therefore is subjoyned in the definition Vnlesse any thing be forbidden by the Law c In lib. 1. tit 111. So that plainly there he is a free man who may do those things which the Laws permit him which

we cannot say of servants meaning servants by the Civil Law or Law of Nations after their conversion injoyned by St. Paul strictly to obey d Ephes 6. Coloss 3. Liberi free men are called so from Liberty as servants from servitude being opposites Liberty in the proper and strict sense being spoke of the one as servitude of the other though now improperly other kinds of things may and do come under those appellations Such liberty then as may be suffered by Laws and amongst men incorporated in a government is sufficient and whosoever will be displeased at it all that can be had Living under such a law as ours shall be shown to be where mens persons are free and their estates in which they have a propriety unless in such cases whereby their publique offences that freedom according to the plain words of known Law is justly forfeited as where the Jury in attaint are sentenced to lose their Frank Law e 46. E. 3.22 or in such cases where all the parts are to contribute to the good of the whole as either to the maintenance of a warre undertaken by the publike and supreme power or to the splendour of their home peace which as it must certainly be of value out of gratitude for the benefits injoyed under it all are bound to is Liberty as the Magna Charta f c 29. No Free-man so here is this liberty shall be taken or imprisoned or disseised of his freehold liberties or free Customes nor be outlawed banished nor in any manner destroyed c. but by lawful judgement of his Peers or by Law of the Land Which is not waging of Law as a most learned Author would have it g Tit. of Honour 1. edit 344. This chapter of the Magna Charta is partly repeated in a later Statute h 25. E. 3 4 v. 5 E. 3.9 21. E. 3.3 v. V●● Abb. S. Alb. 143 and there Law of the Land is expounded Indictment Processe by Writ Original and course of the Law another Statute recites it and instead of the words Law of the Land puts in Processe of the Law as equivalent and Synonyma signifying the same thing i 37. E. 3.18 and again a Statute of that King says No man shall answer without presentment before the Justices or matter of Record or by due Processe and Writ Original according to the old Law of the Land k 42. E. 3.3 So we see the free man hemmed in with all his liberties and free customes if he abuse them if he be found guilty of a publike crime or of any injustice or wrong done to his neighbour for which according to the Law of the Land and the judgement of his Peers or equals such liberty ought no longer to be his Sanctuary then as having forfeited his birthright of the Law he becomes a servant as the Statute may be taken imprisoned disseised of his free hold or liberties Outlawd or in any wised stroyed The same Magna Charta wils l c. 14. That no Freeman be amerced for a small offence but according to the manner of that offence c. The Statute of Merton provides m c. 10. That every Free man which is legally free who oweth suit to the County Tithing Hundred or Wapentake or to the Court of his Lord c. Here is the Free man again yet indebted he oweth suit and is chargeable with those duties the Law has obliged him to Legal liberty there may be there ought to be if these pretenders ever turmoiling and troubling others more peaceable and modest then themselves could overturn and alter government as often as the unquiet Florentines did theirs could make it their perpetual motion who changed ten time in a very few yeers n Mach. Hist 57.67 69.99 90.115.166.171.237 the proscriptions and slaughter of the best Citizens and the pangs and throwes of every change considered This liberty would not be worth the blood she must swim through to her throne and perhaps then there would be little liberty for any but those who conduct her thither liberty so this Historian upon the motions of his City is oppressed by the name of liberty Salust in his description of the Aborigines gives the best character of these lawless libertines in these words They were a kind of savage wilde men without Laws without command or government free and loose Such I take ours to be and such their liberty which may and will ever be pretended but without extirpation of all Religion humanity order and civil policy can never be had And if onely Cato's wise and just or honest man be at liberty and all wicked men slaves and villains o Plut. in Catone Vtic. I believe few of this Sect let them move every stone they can are likely to be free man is a labyrinth full of windings let the outside be never so specious and taking it may be a great distance from the heart there is no safety but in distrust we should suspect every thing which our own experience hath not assured us of most of all when Lawes which are the heart and vital parts in a Government are practised upon we idlely and fondly charge destiny and the period and ruine of things upon fatal families or boundary yeers when the truest cause of the calamity is our own unworthy lightnesse The reason why the Commonwealth of Sicyon survived the policie and Estates of all Greece besides is made this in seven hundred and forty yeers they never set forth new Edicts nor went beyond any of their Laws never exceeded them all things below are in continual motion have their infancy their manhoood and old age which is change and death their rise and fall yet as regular diet and temperance preserve the weakest most declining bodies so although considering the multitude of wicked men and what may hurt without no Government in judgement can subsist at all without the peculiar never failing assistance of the divine power yet may good Laws well obeyed prop up and keep off the fate of that which else would tumble presently And all things else would be more constant if man were so CHAP. II. Of the Law of England and what it is Its Antiquity not Norman King Edward the Confessor his Lawes brought down to Magna Charta and there setled The fundamentals are Saxon-English The English-Norman Laws since because of new offences of Tenures AS wisdome goes and must go it has ever been easier to gain the reputation of wisdom then of goodnesse The good man was he who loved his Country more then himself who obeyed and reverenced the Laws for Justice sake and if possibly would not have outlived them rather just then shiftingly politick The answer to the question Who was the good man used to be Qui leges juraque servat he that kept the Laws The Ancients of the greatest experience and learning peaceably ever observed the Laws of their several Countries neither were those

The Lord Chancellours oath is thus That he shall doe right to all manner of people poore and rich according to the lawes and usages of the Realme s 10. R. 2. rot Parl. 8. The Barons of the Exchequer sweare no mans right to disturbe let or respite contrary to the lawes of the land t 4. Jnsti 109. which must be meant of the knowne and certain Law of the Land called in Magna Charta Legemterrae upon which all Commissions are grounded wherein is the clause to do what belongeth to Justice according to law and custome of England u 2. Jnsti 51. The illustrious Viscount of St Albane amongst his Aphorismes of universall Justice has this Let no Court deale in cases capitall our Lawes say Civill too but out of a knowne and certaine law God denounced death then he inflicted it nor is any mans life to be taken away who knew not first he had sinned against it w Augm. scient 402. By this Law of the Land although there is not nor cannot be any liberty which should protect the transgressors of it yet have all Offenders a legal tryall nor are possessours of the worst faith thrown out without the hand of the Law onely against those who attempt to subvert or weaken the Lawes there is a Writ to the Sheriffe in nature of a Commission to take the impugners and to bring them as the Register to the Gaole of Newgate x Regist 64 2. Justi 53. This as the Lord Cooke is lex terrae The Law of England to take a man without answer or summons in this case and the reason given is He that would subvert all Lawes deserves not the benefit of any Amongst the articles exhibited to King Henry the eight against Cardinall Wolsey he is charged with oppression in imprisoning Sir John Stanly and forcing him to release a farme taken by Covent Seale of the Abbot of Chester c. as the words by his power and might y Artic. 38. And that he threatned the Judges to make them deferre judgement z Artic. 39 that he granted many Injunctions the parties not called nor any bill put in by which diverse were cast out of their possessions of their Lands and Tenements a Artic. 21. The close was That by his cruelty iniquity and partiality he hath subverted the due course and order of the lawes His Inditement went higher and accused him That he intended the most ancient lawes of England wholly to subvert weaken and this whole Realme of England and the people of the same to the Lawes Imperiall commonly called the Civill Lawes and to their Canons for ever to subiugate c. b Mich. 21. H. 8. Coram Rege Now although the Civill Law deserves as much honour as can be given it and commands and is obeyed much abroad yet this Law of the Land held the possession here by a long unquestionable prescription and after the tryall of many ages got the affection of the people whose fathers grew up happily under it which was not easily to be removed the rather because seldome doth any Nation willingly submit to or welcome the Customes and Laws of another which they have not been acquainted with and our Judges who wil not in our Books part with one of its Maximes c 2. Jnst it 210. would not have fallen downe before the shrive of any unknown Themis and have offered up the whole tables It were no hard matter to heape up testimonies Vid chap. 3 if some would thinke it lawfull to trust men in their owne arts or professions and can it not but be more reasonable that such should be heard in the defensive then that those who professe full Hostilitie bringing with them onely mistakes of their owne prejudice should sit Judges of the tryal which is in their own cause and if thus far the reines be given to turbulent desperate spirits every thing how sacred soever may be arraigned at these tribunalls the articles of our faith will quickly totter nor will any principle be safe This discent will be fatall there being no stay in the precipice the bottome onely must receive men where he that falls is crushed to pieces what is worse those unhappy ones who follow cannot see their danger Thus we have seen what the common Law the Liberty and Franchise of the free people of England the law of the land is The law of antient time d. 27. E. 1. of old time used e 25. E. ● the old law f 42. E. 3. for ages according to the judgement of these Parliaments makes the law more venerable it is an addition of honour to it Now it followes in order to speake something of the Antiquity of this law The Antiquity of the Law But as the beginnings of things sometimes are rather guessed at then knowne it is no wonder that there should be no generall agreement here of opinions some will make the Law a Colossus of the Sun knocking the Starres with its head more ancient then the Dipthera or Evanders mother others a late small spark struck from the clashing of the Norman Swords the child rather of Bellona then Jove terrible in the Cradle the truth being mistaken by both To relye upon the authority of a Chancelour or rather chiefe Justice in the time of King Henry the sixth upon which the * r. 2. Epi. r. 6. Epist antiquity should be raised was lesse then that of Aventine who professed History where after a prodigious linke of German Kings before the Arcadian Moone he will needs bring his Dutch to the Wars of Troy which he proves out of the laws of Charles the 4. who lived lesse then two hundred yeare before Aventine and some three hundred yeares before us from which he is peremptory there must be no appeal g Boicar Hist 49. for a great Lawyer continually imployed in the publick affaires or in his study where his many volumes upon the law show the whole man might well be taken up to faile in a piece of History if he may justly be said to faile this way who onely trusted another who was carelesse It is no blemish such as can deserve the censorian rod of our Criticks besides all men love to consecrate their originalls This is allowed to antiquity saies Livie mixing things humane with divine to make the beginnings of Cities more majestick and we may say as he doth of his Rome of our Lawes if it be lawfull to canonize any to carry them up to Heaven or fetch them downe from thence that glory alone is due though it needs not to the most sacred lawes of the land Sir John Fortescue his words are to this effect That if the lawes of England had not bin most excellent the Romans who cry up their Civill Law Saxons Danes or Normans had altered them h de lg Ang l. c. 17. by which our Lawes must be Brittish at least and our

Saxon Fathers who beat the Brittaines or Welsh out of their owne inheritance into the parts they now inhabit must be supposed farther which is strange to rob them of their Lawes as men who had not wit nor reason to keep peaceably what they had gotten without the helpe of their policie and order whom they had overcome Caesar if he did but first show Brittannie to the world did that as Eutropius i L. 6. He made the Brittaines tributary to the Romans whose name was unknown to them before as Strabo twice he was victorious and returned with Hostages a great number of Slaves and much prey k L. 4. Brittanny was not known to be an Island till the comming of Julius Agricola Proprator hither l 39.66 as Suetonious of Caesar aggressus Britannos ignototantea none of these commend their Civilitie none of them mention their Laws Herodianus in severe They went naked according to the cuts in M. Speed their skins painted whence they had their name in the shape of all sorts of creatures and gashed ignorant of gardens and of tillage m Strabo ubi sup Inoulti omnes saies Mela whom no long peace saies Tacitus since Claudius who was here in person disarmed them about 150 yeares after Caesar had softned like the Gaules but more simple and barbarous Woods were their Cities their Cattle and themselves lodged under one roofe n Strabo ubi supra Heredian who writes thus of the Brittaines lived and wrote probably 240 yeares at least after the Incarnation and about 50 yeares after King Lucius or more So that it would be very strange that such lawes as ours which yeeld not to the best in Christendome for goodnesse should have such a Cradle It would be inquired what lawes the wild Rovers of Laboradora or Cafariae have set forth as little civilized and living much after the rate It is scarce possible too out of Tacitus that there could be any Common Law amongst them heretofore saies he they were governed by Kings now they are drawne by petty Princes into partialities and factions c. they have no common counsel together seldome it chanceth that two or three States meet and concurre to repulse the common danger o Invi ta Jul. Agri. The first Lawes we find here in use were the Civill Lawes of Rome imposed upon the people as the Romans imposed their power And had that Epistle of Eleutherius the Bishop of Rome unheard of till 1000. yeeres after Eleutherius to Lucius or Liever Maur been no forged piece which not onely in the unhappinesse of the Synchronisme or mistake in the yeares of our Saviour not agreeing with the Pontificate of Eleutherius but by Manutenere a Norman-Latine word used in it and since crept into our Law it is convinced to bee p D. Hen. Spelm Concil 35.36 yet what needs King Lucius to send for the Imperiall Roman Lawes which were setled here before and no question onely in use here then Liever Maur being no free King nor of the whole but of the Joeni alone called after the Kingdome of the Eastangles now Norfolk and Suffolke meerly a Substitute of the Lords of Rome like a Tetrarch if so much ever fettered in those chains they had put upon him From the time of Claudius the Emperor who subdued neere all Britaine the Roman Lawes prevailed even amongst the Brigantes those of Yorkeshire North at Yorke another way amongst the Silures or those of Caer Vske in Munmouthshire and amongst the Cornavii at Deva Caer Leon Vaur now Chester in all the Colonies were set up the Roman Courts and Tribunals About an hundred years before Liever-Maur Tacitus relating what happened in the Colony of Camolodunum amongst the Trinobantes now Maldon in Essex under Suetonius Paulinus sayes Strange noyses were heard in the Courts q Ann. l. 4. as Dio. In the Court was heard a barbarous murmure with much laughter r Die l. 62. and Eutropius sayes a strange Colony is brought to Camolodunum with aband of veterane souldiers to be an aid against the rebellious and imbue the confederates to the offices or duties of the Lawes Severus before his more Northern expedition Camd. B●it 338. has the same words as Herodian relates left his younger son Geta in the part of the Isle subject to the Romans Juridicundo rebusque civilibus ut prae●sset as it is translated ſ H●●od l. 3. that he might look after the businesse of the Lawes of Justice and the civill affairs After the death of Liever Maur so famous was that Tribunall of the Romans at Yorke that Papinian the most renowned Civilian of his owne or many ages sate Judge there There did the Emperor Severus and Antonine set forth the Imperiall Constitution called De rerum venditione t Cod. l. 3. tit 32 as the most knowing Knight has observed u D Spelm. ubi sup Agricola as Tacitus in his life tooke the noble mens sons and instructed them in the liberall Sciences preferring the wits of the Britains before the Students of the Gaules as being now curious to attain the eloquence of the Romane language whereas they lately rejected the speech a likenesse of our Lawes with those of the Britaines is indeavoured to be proved by that onely place in Caesars Commentaries w L. 6. where it is said but of the other Gauls not of the Druydes whose imployment was about things divine x Ibid. sacrifices publike and private and who were interpreters of Religion whose Discipline as there was found in Britanny That if the wife be found guilty of the death of her husband she was burnt as in our petty Treason Caesars words are The husbands amongst the Gaules which is no part of the Druyds Discipline from whomsoever derived have the power of life and death over their wives which is not Common Law and when the Father of an illustrious Family not any Gaule dies his kinsmen meet and if there be any suspition of the death inqurie into it c. and if it bee found kill the wife excruciated with fire and all torments Caesar where he speaks of the Britains shewes strange marriages y Lib. 5. Ten or twelve of them sayes hee have commune wives amongst them especially brothers with brothers and parents with their children But many hundreds of years since all this the Britains were very barbarous and rude so that hee who shall read the Lawes of Hoel Dha or the good z In Sr. H. Spel. Councells neare one thousand years since Caesar will have little reason to think our Common Law ran from any such fountaine and it seems the old Lawes and Customes of this people were far worse and more rude yet all which lawes and uses as the Proaeme at Guyn upon Taff yn deeued or at Twy guyn artaff he abolished a Gloss D. Spelm. tit lex Hoel c. è Proaem legum and gave new laws to his Britains from

no wonder that he should carry the name I shall speak more of this in my third chapter Hence from this time are our Laws called the Common laws the same in substance with those in use since The reason why our Saxon Books are so thin and have so few lines in them may be this Our ancestors had their unwritten customes such as they brought with them out of Germany which as since lived and were preserved in the memory of the people c V. c. 1. sup Gless D. Spelm. tit Lex Lomb. as well as their laws written After all this as we finde in the lawes of William the I. there was a difference in the estimation of men offending according to the customes of Provinces d Ll. Guil. 1 s 3 4. The punishment or mulct of breach of peace was forty shillings in the Mercian law fifty in the West Saxon c. He that will looke into the Saxon lawes will finde as clearly as can be considering the distance made by so much time which is but a distance of words the fundamentall stones of the building he shall finde freedome enough and peace every where provided for in the words of those Lawes the peace of God of the Church of Religion c. Lawes concerning Tythes and Church-rights c concerning Sacriledge false Witnesse Adultery Incest Fornication marrying a woman by force Perjury Slander Usury Murder Homicide where it is Chancemedly Robbery Theft of the Fly-man or Theefe who runs for it the receiver him that is taken in the manner Hondabend and Backberend Burglary Clandestine Sales vouching to warrant what is sold false rumours counterfeiting money change of goods just weights repaire of Castles Townes Bridges High-wayes waging Law Outlawry judging according to the dom bec * Vid. Ll. Ed. sen c. 1. or Judgement book one of which as as Asserius Menevensis Bishop of Shirburne a familiar of King Aelfred that King made but it is lost concerning Appeales when Justice was denied in the Hundred or too rigorously administred trespasses wrongs battery affraies incendiaries the wife of a thief pledges of good behaviour amercement of Townes for the escape of a Murderer the injust Judge those who will not serve those who injustly trouble the Owner of Lands who has good title those who change their place of abode Merchants rescue in most offences the punishment of a Freeman was pecuniary or losse of Liberty of a Slave by whipping The reason of which M. Lambard makes because of the rarenesse of offences then See Ch. 3 fighting in the Kings Palace breaking open houses and firing robbery open theft and aebermorþ manifest killing murder the same and from whence our word murder cometh and Treason against the Lord were capitall could not be expiated with money The Jury of twelve men is denied to be more antient then the Norman Conquest by M. Daniel In Will 1. and Polydore Virgil but with a great deal of bitter vehemence by the last who sayes there is no Religion in it but in the number with as much truth as that the same King William brought in the Justices of Peace or that Wardship began with Henry the third which King Johns Charter alone confutes or that the Hotspur Lord Percy was taken alive at the battell of Shrewesbury and lost his head by the axe which are his relations That this Triall is of English Saxon discent is manifest by the Laws of King Etheldred ordained at VVanating e C. 4. which speak thus In all Hundeeds let Assemblies be and twelve Freemen of the most antient together cùm praeposito f Ll. Ed. Sen. c. 5.11 in Saxon gerefa with the Reeve of the Handred shall sweare not to condemne the innocent nor absolve the guilty g Lamb. in verbo Centur D. 5 ●el in Jura●a Vid. C●asultum de M●ntic Walliae c. 3. The reason of the great silence of this in the Saxon times is because the vulgar purgations the Ordiles were every where then in use The Norman who wrote the grand Customary in the beginning of it sayes the Confessor gave Lawes to the Normans when he was amongst them and in the first Chapter de Appella he mentions the Custome of England to prove things by the credence of twelve men of the Neighbours or Visne After all the ill Customes so much decried in the Barons warres taken away and Sr. Edwards Lawes restored and confirmed in Magna Charta the inquest of twelve continued untouched and never complained of it was in use with the French in the age of Charlemaigne h D. Spelm. gless verb. in Quaest Vid. Gesta de villa novilliaco post appendic ad Fledvardum This Law of S. Edward I thinke is above all exception and full to the thing by which after a prohibition that no man buy a live beast c. without pledges and good witnesses is said and if any man buy otherwise c. after the Justice shall inquire by Lagemen legall men and by the best men of the Borough Town or Hundred c. i C. 38. This trifler Polydore reviles our inquests by twelve as devised so he to oppresse men under the show of equity and the Canonizers of Gunpowder Garnet calumniate it as upstart and unjust Of these hereafter For Polydore sayes the excellent Sir Henry Savil he was an Italian a stranger not conversant in our Commonwealth neither of much judgment nor wit k Epist ad Eliz. Reg. snatching at things and often times setting downe what is false for the true M. Selden bids all Readers in these things or such like to take heed of Polydore and his fellowes for sayes he and no man can say it better out of carelesnesse being deceived hee attributes many things to William as the Author which it is most certain we owe to the most antient times of the Saxon Empire c. l Notae in Ead. 194 Courts of Justice were erected before the Normans were heard of as the Halmot or Court Baron m Ll. Ed. c. 23 Hen. 1. c. 10 The friborge or tithing called Tenmentale in the North by the Normans Frankepledge a most excellent policy of State and one great reason why when it was practised insurrections and theft are so seldome heard of in the tything every nine men were pledges for the good bearing of the tenth If the substance thereof was performed as it ought sayes M. Lambard and as it may by Law then should the peace of the Land be better maintained then it is n Office of Constab 9. this Mr. Daniel affirmes o H●st 38. By the due execution of this Law as the Lord Cook such peace was universally holden within this Realme as no injuries homicides robberies thefts riots tumults or other offences were committed so as a man with a white wand might safely have ridden before the Conquest with much money about him c. p 2 Inst 35 few Suits or causes of Suits

must needs then be The Hundred which was ten tythings a Germanie Institution q Gapit Car. Calui apud siluacum where every man was bound to attend in the North called Wapentake then the Trything Thryhing or Leet the Jurisdiction of which extended over the third part of a Province containing three or four Hundreds r Ll. Ed. c. 34. The County Court called gerefas gemot the Sheriffs gemot or Court to be held by the Institution of King Edward the elder every fourth weeke where the Sheriff was to decide civill and prediall causes and every sfraec as there plea was to have an end at the day ſ Ll. Ed. sen c. 11. The supreme Provinciall Court was the Sciregemot or Shire Court the same which now we call the Sheriffs turne kept twice the yeare where the Thanes or Noblesse were bound with the Freeholders to be present the Bishop was Judge for Church-matters and the Alderman of whom below for things secular here was the Assembly of all the Hundreds t Ll. Eadg c. 5. ll Aethelst m. s c. 20. Il. Cnuti c. 7 ● p. 2. here Causes Civill and Criminall were determined This Court and its Jurisdiction was very ancient being famous and used in the same manner amongst the Franks and Lombards as may be seen by their lawes u Ll. Car. Lud. Im. l 4. c. 26. Car. m. Lom l. 2. tit 52. Ll. Aleman tit 36. VVilliam the first divided the Jurisdiction and confined the Bishop with his Causes Ecclesiasticall to a Court by himself which were discussed in the Hundred and Court of the Shire before which appears by that sanction of this King directed to the Earls Sheriffs and all the French and English so it speakes who have lands in the Bishopricke of Remigius Bishop of Lincolne though there onely the Hundred bee named w Not in eadm 167. yet there is added The Episcopall lawes which were not well kept nor according to precepts of holy Canons c. and as this is recited elsewhere They shall bring nothing to the Hundreds or Judgement of secular men x M. S tab Rob. Winch. Arch. Cant. in eadm 168. and every secular Court is alike forbidden to Church-men by the Canons In one or other of these Courts in the lesse or greater all causes were to be determined at mens homes and at their owne doors if the parties would rest there no man ought to sue out of the County to draw his Plea from thence without good cause which might be pretended then and in every remove ought really to be now as appears by the Tolt Pone Accedas ad Guriam and Recordare This good cause was if the Suitor could not have Justice at home or what he had was rigour and summum jus then might appeales be to the Palace to the King there whose Court is called the High Court of Justice for law and equity y Ll. Aelfr c. 38. Ll. Edg. c. 2.11 Cnuti c. 16. after the manner of the ancient Jewish Commonwealth a course observed sayes the most knowing Knight all Europe ore z Gloss tit Cancellaria Our antient Kings as he swore before the Realm and the Priesthood right Judgement to doe in the Realme and Justice to keep by counsell of the Peers of the Realme a Ll. Edu Con. c. 16. viz. In this Court every City and Borough had their Courts the Burgmote kept thrice the yeere the Wardmote the Husting the most antient and supreme Court of the City of London is of Saxon extract which every Munday used to be held now on Tuesday yet does the stile still say held on Munday Lincolne Winchester Yorke and Shepey have their Hustings it held Pleas as it does of things reall and mixt Judges there were too in the manner we finde after the Normans who changed only their name from Aldermen to Justices There was the Alderman of all England Chief Justice as Ailwin Founder of the Church of Ramsey was called upon his Tomb The Kings Alderman as the most knowing Knight thinks b Gloss tit Aldermannus like the Missi c In Capit Gar. m. Franc. ll as our Justices in Eire or of Assize The Alderman of the County Iesse then the Earle but equall with the Bishop which three sate together in the County the Earle was to take care of the Commonwealth the Bishop of the Church the Alderman of the County to declare and expound the law c Gloss ibid. Besides as to execution of publike Justice upon the contumacious he might which our Posse of the County resembles use force raise the people This difference is plaine in that law of King Aethelstane Be ƿerum of the estimation of heads d P. 55. part 2 ll v. ll Jnae c. 8 Faedus Regum Ae●fr Gath. m. s in gless citant where the were gild or price of an Archbishop and an Earls life who are joyned as equall is fifteen thousand th●imsa of a Bishops and Aldermans who next follow and are joyned but eight thousand c. Sometimes the same things are said of both the Earle and Alderman so that they may easily be thought in those places the same This was a Salic Institution to substitute thus two or three under the Earle whom they called Sagibarons as Ingulphus who is altogether for King Aelfred King divided the Governours of Provinces who before were called Vicedomini into two offices into Judges whom now we cal Justices and into Sheriffs yet he has in our Charter Bingulph a Vicedominus which Title the Justices yet in Ingulphus retained and Alferi a Sheriff e In An. 948. The Saxons had their Hold or Heretoch their Military Commander in every County Places had their Bilaga by-lawes besides the Common Law Law made by consent of Neighbours now by the Homage in a Court Baron Suiters in the Leet or view of Frankpledge in towns by the Inhabitants and Neighbours as M. Lamhard The Saxons our Ancestors retained the manner of the old Germans their owne Elders who in Tacitus Jura per pagos vie●sque reddehant made distribution of Justice not onely in one Towne or in the Princes Palace but also at sundry other speciall places within the Countrey and as he truly the Normans who invaded the Posterity of the same Saxons here did not so much alter the substance as the name of the Saxons order f Arch●ion 89. But to satisfie those to whom the Normans may be as odious as their Conquest although perhaps they may be Normans themselves most likely descended by some Mother from them and may seem as fond as if now at Millaine or Pavie after so many hundred yeares they would indeavour to distinguish the Lombard and Insubrian the Insubrian Gaule from the Italian in France the Gaule and German-Franke in Spaine the Carpetane and Wisigoth I say to satisfie them I will prove by the testimony of those who lived then when this Norman change is imagined

to be that there was no such overturning of things as is believed The Title of the Lawes called the Lawes of King William the first published by M. Selden with his learned Notes upon Eadmer and since with the Saxon Lawes is this These are the Lawes and Customes which William the King granted to the whole people of England after the Conquest of the Land these were those which the King Edward his Cousen beld before him In these Lawes recited by Hoveden in the life of King Henry the second ' King Edwards Lawes are confirmed in these words This we command That all men have and hold the Law of Edward the King in all things together with those Lawes which we have added for the profit of the English g Pars Poster 661. This Confirmation was not freely given but in this manner King William having heard the Lawes of the Danes and Normans and approved them as the Chronicle of Lichfield having approved the Lawes of those of Norfolke Suffolke Grantbridge and Deira c. he commanded they should be observed through the Kingdome as more just then any others because himselfe and his Barons were Norwegians by extraction not a word is there of any resolution to introduce his Norman Laws this the English thought a more killing blow then that of his Victory they beseech him and by the soule of King Edward c. to permit them to injoy their owne ancient Laws and Customes under which their Fathers lived themselves were borne and bred up to wit the Lawes of holy King Edward and they tell him it could not but be very hard to receive Lawes unknowne and to judge of those things they understood not h The Paraphrast of these Laws Chron. Lich. The King long resolute at last yeelds and as these with much authority were venerate and through the whole Realme corroborate and before other Lawes of the Realm the Lawes of King Edward not because he found them but because be restored them sayes Gemeticensis of the same age with King William i l c. 9. The Chronicle of Lichfield and Hoveden are more large with which agrees the first Chapter of the Lawes of good King Edward thus it speaks Which King William confirmed all of them use neer the same expressions By Precept of King William say they are elected out of every of the Counties of all England twelve of the most wise men who were injoyned before King William that in what they might neither declining to the right hand nor the left in a direct way they should lay open the Constitutions of their Laws and Customes nothing omitting nothing adding nothing out of prevarication changing k Hoved. 601 Chron. L●ch ll Ed. c. ● Further yet in that Chronicle Aldred the Archbishop of Yorke not Thomas Archbishop of Canterbury as the Paraphrast would have it there being no Thomas of that See till lawlesse Beckets dayes who as this and Malmesbury crowned him l Malms● l. 3. 〈◊〉 vita Pontific and Hugh Bishop of London by command of the king writ with their own hands what the foresaid jurates said from the laws of holy mother the Church beginning c. Ingulphus Secretary to William in Normandy and after made Abbot of Crowland by him is witnesse enough alone and as he I brought this time with me from London where he had been about the businesse of his house to my Monastery the laws of the most just king Edward which my Lord William the renowned king of England had proclaimed authentick and perpetual all England over to be kept under most grievous penalties commended to his Iustices in the same tongue they were set forth m Ingulph p. ult This proclamation was not all to allay the stormes which perhaps the violation of these laws had raised for the good of peace says an ancient Monk He swears upon all the reliques of the Church of S. Albane touching the hol Gospel Abot Fretherick ministring the Oath the good and approved ancient laws of the realm which the holy and pious Kings of England his ancestors and especially King Edward set forth inviolably to keep n Vita Ab. S. A●b 8. s ●0 that the English laws were in use then I can prove out of that famous plea of Pinnende●e betwixt Lanfranck Archbishop of Canterbury and Odo Bishop of Baieux and Earl of Kent there it is said the King comanded al the County without delay to sit all the French of the County especially the English in the antient laws customes skilled to assemble o Not. ad E●d 198. William the 2. promises onely easie laws justice equity and mercy and laws desirable p Hunting l. 7.372 ead 13. Ma Par. 14 Heved in h. 1. which his successour Henry the first construes and there could be no other meaning to be meant of these laws he swears To take away all the injustices and oppressions of his brother promises the good and holy laws to keep and to strengthen the liberties and ancient customes which flourished in the realm in the time of S. Edward the King q Ead. 55. Malmsb. in Hen. 1.156 Ma. Pa. 55. and in his laws he says The law of King Edw. I grant you with those amendments made by my father with the counsel of his Barons r Ll. Hen 1. c. 2. Ma. Pa. 56. and in the same place those things which hence forward shall be done shall be amended secundum lagam according to the law of King Edward yet after he imposes a new law a medley out of the salick ripuarian and other forreign laws with some pieces out of King Cnuts Danish laws which were but a small time observed and could not take any thing from the lawes of King Edward king Stephen confirms the laws in these words all the liberties and good laws which Henry King of England my Vnkle granted them and I grant them all the good laws and good customes which they enjoyed in the reign of King Edward s Ex lib. autiqu Ll. The Londoners request of Maetildis the Empresse daughter of Hen. the 1. That they may be suffered to use the laws of Edward because as they they were the best and not the laws of her father Henry because they were grievous which she refused whence great commotions were made t Florent wig in an 11 42. cont which grievous laws certainly were that salic rapuarian Danish medly and likely enough a commotion in those boisterous times would follow the refusal many of the disquiets and tumults of those first reigns being raised upon the pretence of the breach of these laws a pretence so taking that the No●mans themselves either coloured their insurrections with it or else preferred these before their own laws and ran the hazard of their lives fortune in earnest for them Henry the 2. commanded the laws of his Grandfather to be observed u Hov p. pricr in H. 2. of which below

without triall justice shall not be sold nor deferred c. The observation of these Lawes was a condition of Peace which ever appeased the antient distempers and cemented what was loose and dis-joynted in the great body The Lawes toe of St. Edward are inserted into the oath of the Kings of England usually taken at their Coronations which were not onely superfluous and abundant but an impious vanity if there were no such lawes any where after the solemnity of this religious and sacred bond to be observed The manner of taking the Oath as we find is this The Archbishop asks the King VVhether he be willing to take the Oath usually taken by his Predecessors and whether the Lawes and Gustomes by the antient just and devout Kings granted to the people of England with the confirmation of his Oath he will grant and keep to the same people and especially the Lawes Customes and Liberties by the glorious King Edward to the Clergie and people granted d Ex libro regali After he is led to the high Altar where he swears to observe them c. Further so farre are some from allowing our Lawes to be Norman that they are of opinion the Normans received theirs from us as they most of their Customes being so derived as William of Rovel in his Preface to his Commentary upon the grand Customary Edward the Confessor being a long while in Normandy gave Lawes to the Normans and made the Customes of England and Normandy e D. Spel. gloss v. jurata which if it were not so nothing is lost by it nor does it make any of these truths suspitious * Sup. 55. that so few of these Lawes are come to our hands of which something is said before and of their Book-Cases or Judgments none at all There never could be any such Volumes of them heard of as are fancied besides the honest simplicity of the first ages and the strictnesse of rules spoke of writings and deeds either to pass Lands or Priviledges were not in use till King VVithred neer 700. years after our Saviour that King being so illiterate that he could not write his name as himself confesses f Concil Sax. 198 King Aelfred little lesse then two hundred years after this complaines of the ignorance then that there were scarcely any on this side Humber who could understand the ordinary common prayers or translate a piece of Latine into English but in the beginning of his reign on the South of the Thames he remembred not a man who could have done it g Ibid. 379 Epist Aelfredi ad Walsagepiscep and although this King of sacred memory if perhaps as I cannot thinke he was not the Solon and Arthitect of our Saxon English order yet a great restorer of it built gloriously upon the frame he found yet these were lesse then beginnings would likely have been where such a Prince had been the Workman he could not intend them the Danes like a fatall whirlewinde tearing up root and branch every where ruining had long before broke into the Land which two hundred yeers together they miserably harassed with whom he fought fifty six battells and as may be imagined had not leisure to performe the duties of peace but in his armes sometime hid in the poore shed of an Herdsman as the most knowing Knight a King without a Kingdome a Prince without people so that hee could not thinke of his Lawes h Concil 378. and although there was some breathing and the storm had some intermission some calmes were in the two hundred yeeres some in his reign yet such ravage and spoil had these barbarous theeves made and so universall might the Confusions and Disorders be we may conceive it would be the labour of no short peace to restore things fallen or shaken to their first condition without making any the least progression this being not to be done till the corruptions which warre licentiousnesse and carelesse negligence have bred in the parts most sound are plucked up and the weeds throwne out which must be the worke of time The proceedings too of the Saxons our Ancestors as M. Lambard in judgement was de plane and without solennity enough to cleare this though the Saxon Lawes then were enough for the Commonwealth yet they had no great extent whatsoever unto S. Edward gathered out of the Lawes of those who followed this King and saw more quiet dayes or out of the whole body of the Saxon Lawes could not reach farre but not out of any defect in the Law it selfe then the cause why the law runs in a larger channell and spreads into more veines now is not any artifice or injust dealing of those who practice it but the improvement of estates by good husbandry much traffique whence contracts are more frequent As Sir John Davies there is more Luxury and excesse in the world more force deceit and oppression more covetousnesse and malice breach of peace and trust which as they gather strength and multiply so must the laws there is a necessity that as these mischiefs increase there should be supplements of laws to meet with them Mr. Daniel observes of the Assize of Clarendon long after the Saxons that it consisted as it does of very few points and that the multitude of actions which followed in succeeding times grew out of new transgressions c. When the Romans were little better then shepheards and herdsmen it is said a few Ivory tables contained their laws after they came to be Lords of the world thousands of Books were writ of the Romans Civil Law Albericus Gentilis justly reprehends Ludovicus Vives who maintained as he that all things might be finished by a few laws as the same Mr. Lambard speaking of the Law of England positive or written Law neither is nor can be made such a perfect rule as that a man may thereby truly squ●e out justice in al cases which may happen for written lawes must needs be made in generality and grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particularity which experience and time doth beget i Archeior 76 77. There is a curse of peace the highest prosperity has its dangers there can be no safety in it the rich man is more infirm more unsound then the poore pride and malicious contention are diseases he is seldom free from it is well said of wicked men and their injustice there is need of many laws to bridle them of many Officers to execute of many lawyers to interpret those laws We know all laws come not in by heaps but as time corrupts things and new wrongs and offences are discovered by the same degrees Thus the Sumptuary laws amongst the Romans came in the Fabian of Plagiaries the Julian of publike or private force de ambitu and the rest all our Statute laws which are remedying So must it be and so it has been in all Commonwealths of

of Geolph sonne of Malt in Halington four Oxganges of land of Jnland which the Margent once corrects by Luland for Juland both which make it non-sense there is added and ten Oxganges in service The words Mannor Mansions Teuements Marshes common of Pasture of all Beasts are frequently met with in the antient Grants made by the Mercian and West Saxon Kings to the Monastery of Crowland f Inulphus Savil 859 864 881. with the termes acres hides Carues Oxeganges Yardlands Firmes Rents c. many of those Mannours had their Royalties or huge Priviledges as Ingulphus calls them annexed both of Jurisdiction in some parts lessened since and profit King Edgars Chatter this Monastery describes and grants them I grant and confirme sayes he c. free from all secular charge and that they have all the free Customes with all that which is called Soc Sac Tol and Team Infangthef Weife and Streye g Id. 881. amongst which Sac in the Halmot since Court Baron was common to all Mannors In the great Plea of Pennedene of which before the Archbishop is said to darrein all the Liberties and Customes of his Church Soca Saca Tol Team Flymena Fyrmthe for Flymen firm Grithbrice Forsteal Haunfare for Heinfare and Infangennetheof h Not. in Ead. 196. most of which are now worne out unknowne in these base Courts yet I will say something of them not that I pretend to give full satisfaction being in some of them unsatisfied my selfe as they are upon whom I relye for Soca D. Cowell cites S. Edwards Lawes i c. 23. He sayes some will have it an Inquest as if it were seek some Suit of Court others an exemption of the Tenents from any publike duties without the Mannor or Liberty called still soke soon socne is in Saxon liberty * Ll. Cnuti c. 69 4. free Jurisdiction frithsocne is a sanctuary a liberty of peace k Ll. Eccles r. Cnuti c. 2 In the lives of the Abbots of S. Alhanes we read with all the lands which William Chamberlaine or the Chamberlain held in the Soke of Luiton l 69. it is the Liberty or Jurisdiction of the Lordship within which the Lord may hold his Court to which the Tenants ought to resort to doe their Suit and out of which they are not to be drawne Sac is conusance of Pleas Tol is said to be a liberty to buy and sell within the Mannour m Ll. Edu c. 24. more likely some duty paid to the Lord upon such sales Team in other Saxon out of the Lawes is progenie by some made a power to have and and dispose of villains and their race it is so I gather from the Saxon laws cognizance in a Court-Baron of things claimed stollen where he in whose hands the goods were found might vouch his Vendor and he over till the Thiefe was discovered if hee were teames ƿyrþe as King Cnuts Lawes speak if he deserved the right as having bought before legall witnesses otherwise not and he was to pay the penalty imposed at the third Voucher the Owner is to have his goods the team was to be in the place where the goods were found no man was bound fylgean team to follow it I know not whether timþ is used in the Laws of Ine for vouch getiman in those of Aelfred for the Voucher as geteaman in those of King Edward the elder and King Aetheldred timan and teaman to vouch team for vouching tymoe he hath vouched in Aethelstanes Lawes tyman team in those of Aetheldred team teames tyme in Cnuts in the same sense n Ll Ina l. 74. Alfr. 4. Edv. sen 2. Aethelft 24 Aetheld 9 10. Cnuti 21 22. Edv 3.25 the other terms may be rendred by Mulct of sustaining Fugitives or Out-lawes of breach of the peace forestalling departing of a Servant Tryall of a Thiefe taken within the Jurisdiction There were Parks in the Saxon times which though it be a digression I thought fit to observe this appears by the word Deorfald Deerfold and by the Doomesday where they are are called Parcisylvatici bestiarum Wood Parks of Beasts Forrests too here are as antient called Bucholt and Buchurst is the same holt and hurst both signifying a Wood. King Cnut in his Lawes o c. 77. v. manne Ferest D Sp. gloss verb. Forresta gives any man leave to hunt in his owne Woods or Fields forbidding onely to meddle with the Kings Venison in the places of freedom other Forrest lawes were after set forth by the same Cnut one of which in the thirty chap. gives leave to hunt but not so generaly it names not woods If the Saxon original were as narrow which no man now knowes yet I see not why these laws should be suspected for it as they are p 4. Inst where this chapter is thought to be a prohibition to hunt which it is not It agrees with the law before men were to avoid the kings game not wheresoever according to the word but wheresoever he will have it according to the other law gefƿiþod priviledged free What the Thane was and how he held his Lands and Lordships I will next enquire The word Thane Thegen thein thegne we finde theowan too and all these ways it is written is used sometimes indifferently in some places meerly for the kings servants meerly for a servant as in Doomesday Cola the bunter Vluiet the hunter Godwin the Falconer c. and in a Saxon Sermon q In Beda 〈…〉 382 The Queen of Seba tells Soloman blessed are thy servants theguas and theowan the Apostles are called thenes r Bede 483. yet in other places it may be observed directly and properly restrained to intended of a Thane holding Taine Land though he might in some honourable way or other serve the king too Such might he be in Bede whom as the fable speaks no bonds could hold when his brother was at Masse praying for his soule as supposing him slain in the battel with Elwin king Egfreds brother who feared to confesse that he was the kings Thegne but said he was a folelic man and again those that were with him saw by his face and carriage that he was not one of the poor folk but that he was of noble race ſ Bede l. 4. c. 22. and being questioned answered he was the Kings Thegne There is the Kings Thane the ðeoden mean or under Thane The first the Kings Baron the other the Lord of a Mannor t v. ll reg Cnuti c. 69. as a most learned Antiquary Neither were there with them the Saxons any other created titles after the Prince or Etheling honorary it seems but this of Earle and their Thanes according to the Charter of the Confessor for the Lands of St. Pauls Church there which runs thus Edward king Gret mine Bisceops and mine Forles and alle mine Thegnes ou Thau shiren wher mine Prestes in Paulus Minister habband Land u D. Seld. tit Hon. He acknowledges there were

before William the first that he sided not against him and that being found true he and all those in his condition h Weentun Monum hi● example ●n C●●ington of Sir Rob. Cotten like to lose all were confirmed in their Lands and Lordships to have and hold those are the words of the confirmation as wholly and peaceably as ever they did before the conquest By the Records of Term. Trin. 21 E. 3. Comit. Ebor Com. Northumb Rot. 191. This Drench is described thus That the foresaid Vghtred held the said lands viz. In Northumberland of our Lord the king and of his progenitors kings of England by the service of a Drench which service in the parts foresaid is such that of whomsoever he holds any thing there by such service it is held and if the Tenant dye his heire being within age the Wardship of the heir and land belongeth to the Lord of which c i D. Spelm. gloss verb● Dronches with the marriage Whether wardship and marriage as the Lord Cook k 4. Inst 193. no badges of servitude be of the same antiquity with king Aelfred I will not take upon me to determine the Lord Cook as also the Mirrour in the place cited by him are for the affirmative l Inst 1. p. 76.4 Inst 292. mire sect 3. graft 911. c. By a law if any man dye intestate the Lord is to have nothing but what is due by the name of Hereo● m Ll. Cnu●● c. 68. by Mr. Lambard this is acknowledged Engish-Saxon and thought to be the same with relief one place sayes Relief or rather Herent n Not. in radwes 152 and Hereot or relief o 154. 161 id compares the Hereota to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hereor is a service and acknowledgement of the seigniory of another a tribute so Dr. Cowel given to the Lord amongst the Saxons for his better preparation toward the war In the Monastical institutions of king Edgar Hereot is called geƿunlic gae ul a customary Cens or duty said to be given to the kings by the great men of this Country after geþtenege their death It is forbidden by this king to be given for all Abbots and Abbesses p In not ad eadm before as it seemeth not so free as here the words By the great men after their death make it quite another thing though it is called so from relief which is for the heir and never paid but where there is one q Gloss verbo Hereot The Hereot was to be reasonable and here again we shall see the ranks of the Saxon noblesse The Earls eight horses four sadled four not four Helmets four coats of maile and eight spears as many shields four swords and two hundred * Saxon ● Marks of Gold The greater Thanes the kings Thanes four horses two sadled two not two swords four spears as many shields an helmet a coat of maile and fifty marks of Gold The Medmere or under Thane one horse ready his weapon or as amongst the West Saxons his neck ransome amongst the Mercians two pounds amongst the Eas●-Angels two pounds The Kings Thanes Hereot amongst the Danes who has free jurisdiction ðe his socne haeb●e foure pound and if he be further knowne to the King two Horses one sadled the other not one Sword two Speares two Shields and fifty markes of gold The conclusion has not Infimae conditionis Thani as the Latin is But he that has lesse and lesse may be he two pound r Ll Conti. c 69. other Lords had their Hereot too The Lawes of Kings William which as the title were the same which King Edward obserued calles this which in these Lawes is Hereot reliefe and the Earle Kings Thegne and Underthane who are here charged as is said there are called and named Cnute Barun and Vavasour and charged much in the same manner ſ ● 22 23 24 v. c. 20. with little difference King Edwards Latin Lawes where any man falls in warre before his Lord by Land or else where forgives his reliefe t c. 3● and gives his Heires his Lands and Money without diminution u ibid. I will observe a little out of those old grants and Charters which preceed the Normans by which the religious heretofore made their titles onely carefull to get and to be free where we shall finde other men were not so The confirmation of Pope Agatho of the new raised Monastery of Medeshamstede after Peterborough before the age of Charters w An. 680. Concil Sax. 164. recites the immunities It was to be in no ðeudom in no kinde of servitude neither to King Bishop nor Earle No man was to have any rent or tribute there in the Councel of Becanceld King Withered freed the Church from all difficulties of saecular servitude from feeding the King Princes Aldermen Earles from all works the greater and lesser grievances c. x Concil Becanceld Au. 694. Concil Sax. 190. Witlafe King of the Mercians in the yeare 833. confirmes to the Monastery of Crowland their Lands and Tenements thus I grant deliver and confirme those Lands and Tenements c. for a peaceable and perpetuall possession to have from me and my Heires whosoever Kings of the Mercians after me to succeed in puram Eleemosynam in perpetuall and pure frankalmoigne Libere quiete et solute or as we now use it quit and discharged from all saecular charges exactions and tributes whatsoever by what name soever y Ingulp hist Concil Sax. 328. as another place amongst many things done said Ceolnoth the Archbishop before the whole Councell of Kingston shewed That the aforesaid Kings Egbert and Aethelwulfe his Son gave to Christ-Church at Canterbury the Mannor called Mallings in South-saxon free from all secular seruice and tribute royal except these three expedition military fird or firdfare upon the Herebanne the proclamation or edict military and to repair Bridges Castles Brugbote and Burgbote z Concil 340. by some not to be released * Charta E●dbaldi M●lmsb de gest reg l. 1. I●ae reg Glelienb Concit 228. which was not true The most learned Mr. Selden saies in England before the Normans were military fiefes the Earles and Thanes were bound to a kind of Knight service all the Lands of the Kingdom except some priviledged c. held of the Crown mediatly or immediately but saies he the expedition mulitary c. those three were not so much by reason of tenure as general subjection to occasions of the state a Tit. Hon. 1 Edit 321. likely so yet to recite the opinions of others there are that thinke this firdfare to be the same with our escuage the Charter of Kenulph An. 821. the Mercian King to Abingdon discharges all services but the expedition of twelue men with their shields cum scutis burgbote c. as the most knowing Knight In the antient Charters

Henry the 4 the 5 and and 6. and Edward the 4. Peace was but like the short Sun shine of a winter day overcast as soon as seen nay the reigns of some foregoing Princes as of King Stephen John and Henry the third were almost a continual civil war sometimes known under the notion of the Barons wars Then as sayes the first Statute of Westm in the Preface The estate of the realm and of the Church was ill kept the Religious of the Land many ways grieved The people otherwise intreated then they ought to be the peace lesse kept the laws lesse used and malefactors lesse punished then they ought q West 1.3 E. 1. Then the great men would not be justified have and receive Justice in the Courts of Justice r Stat. Marl v. 1. Plenty dissolution and dispersion of Monasteries c. Informers concealers multitudes of Atturnies more then are limited by law are next made causes by him s 4 Inst 76 His reasons of decrease of suits follow and are these The Statutes of 35 Eliz 3. and 21 of king James c. 2. Have given full remedies concerning Monasteries the 21 of that king c. 4. concerning informations the 4 of Hen 4. c. 18. has made provisions concerning Attornies they are to be examined by the Justices their names to be put into the Roll the good vertuous and of good name to be received and sworn well and truly to serve in their offices and specially still as the Statute not to make suit in a forreign Country The others to be put out and if any be notoriously found in default of Record or otherwise he is to forswear the Court and never after to be received The Statute 21 of king James in the 3 chap. has provided against Monopolies and new projects in the 8. against abuses in procuring of Supersedeas of the peace and good behaviour the 23 chap. against vexations delays by removing Actions out of inferiour Courts The 16. chap. appoints a limitation of Actions gives them age and death it allows in the common Action of Trespasse Quare clausum fregit where it is by negligence or involuntary to plead tender of amends the 13 chap. prevents and reforms Jeofailes the 28 ch repeals many obsolete Statutes the third of King Charles more The Petition of Right being a confirmation after other Statutes of the same kinde provides for the rights and liberties of all men for the quiet of their estates and persons t 3 Car. enough to satisfie those who are not desperately resolved the more reason they see given to take off their dislike to dislike the more But it may be feared as it is more easie to hate then to shew a cause Non amo te volusi worse then beastly wilfullnesse sometimes must be allowed and the mean and contemptible malecontents are not more guilty of this immodesty then many of the better sort and who indeed may be learned in their own Studies or Professions and therefore will conceive themselves able to judge all others not considering how ridiculous it would be to heare an old Physician censure the order of the Imperial and Swedish battels a m●er plain Captaine the Aphorismes of Hyppocrates a Grammarian or Pedant condemned to noise by rule the Mesolabes of Arebimedes The most Reverend Judges of the Common Law have ever been the most carefull of all men where things were intermixed out of their learning of the Laws though not out of their knowledge sometimes to call into the decision the learned of those Arts or Sciences to which they belonged That every man is to be belieued in his own art is their maxime We pray in aide saies Justice Saunders when any thing falls out in our Law concerning other Sciences and faculties This is honourable saies he and commendable in our Law by this as he goes on it appeares we despise not I may say how ever able for some of this robe whom I could name many easily match those who by their own favourers are thought to have gone furthest in generall learning other sciences then our own but allow and commend them as things worthy of commendations u Plowd com 124. v. r. 7.19 Upon this reason was Huls a Batchelor of both the Lawes sent for by the Judges in the time of King Hen. 6. to heare his Legick as t is said upon the difference of precise and causative compulsion w 7 H. 6.11 Again where an appeale was pretended for which excommunication should not disable the Judges enquired of the learned in the Canon law concerning the vigour of the appeal x ●● H. 6.25 They use to enquire of Surgeons concerning maihem y Com. 125. ●1 H. 7.33 as Gaws dries case They ever give faith and they ought to give faith to the sentence of the Ecclesiasticall Judges still there This is the common received opinion of our bookes z r. 5. 1. p. 7 and in another place Though it be against the reason of the common law a V. 4.29 Our predecessours as the Justices Brown and Stamford in things touching Grammer have used to consult with Grammarians and to pursue their rules b Plowd com 122 127. and the books there This love of our selves is the most dishonest of all others an Empire in sciences is not often heard of some studies may imploy a long age those who will be thought so sublime that they fill all places beyond the Sunne and Heavens way sometimes may be observed to fly weakly to flag an Eridanus or perhaps the earth receives them In Gellius Favorinus a Philosopher no overweener I think much esteemed by this relator high in name and opinion out of this curiosity quarrels with the Lawes of the twelve Tables with no great good luck as he was met with he shall be my example how easie it is for him who will be at all to miscarry somewhere He had read over he saies the twelve Tables which was something his exceptions may seem the more reasonable as eagerly as Platoes ten books of Lawes One would think he was pleased wel enough with Platoes laws which he read so very eagerly yet the Athenians and Polybius justly reprove them for vain lawes which no Nation of Greece could ever be perswaded to use c Athen. l. 12. c. 22. Polyb. l. 6. The Lawes of the Tables which dislike him were these This de injuria paenienda SI INJVRIAM FAXIT ALTERI VIGINTI QVINQVE ARIS POENAE SVNTO which at three farthings the assis it was no more he saies was triviall and would deter no man from doing injuries Some things in the Lawes he supposes inconsistent as in that of the Talio SI MEMBRVM RVPIT NI CVM EO PACIT TALIO ESTO The Talio or like for like was to be unlesse he that did the mischiefe satisfied him that suffered by him and redeemed it This Talio the Philosopher thought was impossible to be just the breaking by retaliation might be

who has not heard of the father of Venice If any such there now be as well there may nature we see by these examples of the last times is no weaker then she has been of so firm memories of so happy judgements they are exceptions to my limitation and are not to be confined if they be not too delicate to adventure they may be ranked amongst those who do not invade Such men have reputation to lose which they will not hazard slightly they will consider of things and know well what it is they censure Whensoever they appear they cannot appear but as friends there can be no danger in them Haste and ignorance are onely to be feared if haste as Livie of it be improvident and blinde what can ignorance be thought to see Every man ere he gives his censure of Laws ought to read them over from the beginning to the end to look into them throughly according to that In civile est nisi tota lege perspecta una aliqua particula proposita judicare c c Leg. in Civivile st de leg upon one particle proposed the whole is not to be judged To the understanding of laws the words alone are not enough the intent of the Legislator the reason and end why they were given are to be enquired By the words of the Law is meant their propriety and signification which will not quickly nor without pains be known The intent of the Legislator is his preceptive will seldome found by the words abstractedly and nakedly but by the adjuncts the matter or circumstances This is the intrinsecal form The reason of the law is only the end moving the Legislator to make it not composing substantially the law constitutive to which the precept and will of the Legislator is to be accommodated This if not expressed in the law but devised by the interpreters is but a probable conjecture Every disadvantagious act of a drunken man by our law touching his lands or goods binds him Nay and touching his life too if he kill a man he is hanged for it f rep 4.124 Plow Com. 19. By Pittacus his law amongst the Greeks allowed by Aristotle g Polit. l. 2. c. ult if he had struck any man he was to suffer double as much as if he had done it sober Some lawlesse good fellows would thinke all this very unreasonable in a law onely intended to punish the wrong done according to the grievousnesse of the offence Since it is evident that mischiefs deliberately done as they may say perhaps with advice and malice are naturally lesse pardonable and therefore worthy of more severe punishment But as M. Plowdens report although the drunken man kill out of ignorance it helps not This ignorance was his own act and folly he might have resisted it and shall not be priviledged by it as the Court in that place of the Lord Cooke His drunkennesse is a great offence in it self and extenuates not but aggravates that which follows whatsoere colourable reasons may be given this boldnesse is rather tolerable in an Hotoman a stranger then an English man The law is the act of the whole body politique and ought to over-rule every part of it to binde every man the actual assent of every single man is not material nor does the dissent of a single man disoblige we are tyed by our forefathers their publique submission to these lawes at their free liberty and with their consent made h 25. H. 8. c. 21. their acceptance of them long since bindes us unlesse the revocation be by the same universal agreement which I believe is not like to be had As a most reverend Lord chiefe Justice strangers by living here do tacitely submit themselves to our lawes and forms of Law-making their grant and consent is involved in the consent of Parliament i ch Iust Hubard rep 271. Much more of the naturals and if all mens judgements which may be as unlike as full of diversity as their faces must be satisfied with reasons of laws long since established or to be set up it wil be impossible any old law shoud hand or any new law take Besides all publique authority to which onely the power of lawgiving belongs would lose its reverence As the Mirrour No creance no belief is to be given to the vain voice of the people The Iudges they are to obey the laws not to dispute them We have have our 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as well as the Athenians who are judges of the laws of the reasonablenesse of them and who are to see them observed King Edward the first said by a most reverend chief Justice long ago to be the wisest king that ever was k 5. E. 3. c. 14. speaks thus in a Statute where we may see what antiquity attributed to the honourable Judges of the laws The king wills that the Chancellour and the Justices of his Bench shall follow him so that be may have at all times neer him some sages of the law which be able duly to order all such matters as shall come unto the Court at all times c l 28. E. 1. c. 5. All the Justices of England and Barons of the Exchequer as the Lord Cook are assistants to the Lords in Parliament m 4 Inst 56 They were more then assistants to the Barons their Writ was for they had their Writs too Quod intersitis nobiscum cum caeteris de consilio nostro super pramissis tractaturi vestrumque consilium impensuri They were to treat with the king and his Councel and to give Counsel As Mr. Crompton they were to be demanded for the Law n Jurisd 2. Postnat 22 23. a Statute more antient then the former begins All of the Councel as well Justices as others agreed that the constitutions underwritten c o Vid. Stat. de Bgam And again It is agreed by the same Justices c p Ibid. i. 6. The Statute of Marlbridge sayes For default another day is to be assigned according to discretion of the Judges q c. 13. Mar●b and discretion of the Justices and the Common Law are joyned 1 c. 26. ibid The Statute of Westm 2. for damages in appeals has According to the discretion of the Justices ſ W. 2. c. 12 in another place Whereas the Justices in the plea of Mortdancester have used to admit the answer of the tenent t c. xx the Statute 27 of Fines is according to discretion of the Justices u 27. E. 1. All the Judges of England gave their Answer to the Articles of the Clergy 3. Jacobi which the Lord Cooke calls Resolutions of the highest authority in law w 2 last 001. as upon the xx chap. of Westm 2. by that he says it is confessed That admission and allowance of the Iustices ought to be holden for Law x 2. Inst 399. In the Parliament 19 of Edward the first Sir Thomas of Weyland

chiefe Justice of the Common Pleas having abjured c. for murder His wife and son Petition the Parliament for a Manour which the Lord of the Fee had seised as Escheated in which Sir Thomas had onely an estate for life joyntly with his wife but the inheritance was in the son by fine There were summoned says the Record as well the Iustices of either Bench as the rest of the realme c. expert in the laws and customes c. The resolution speakes Before the Councel c. there being called the Treasurer and Barons and Iustices of either Bench it is agreed c. The famous case of conveening Clerks before the secular Magistrate was debated in the time of a Parliament of Hen. the 8. the Iustices c. being present and ruled according to the opinion of chiefe Iustice Fineux a most reverend Judge y 7. H. 8. Kelle vay 183. Reasonablenesse of time for tenant at Will discharged to carry away his goods of incortain fines of Copy holds c. is to be adjudged by the discretion of the Judges z Inst 57.59 Distresses are by the Statute of Marlbridge to be reasonable a c. 4. No more is said The Judges have ever yet determined that reasonablenesse as they have ever ordinarily what is reasonable in other things just and injust right and wrong what are evil customes and what not according to the Laws they have the use and customes of judgement saies a Statute b De Bigaem c. 1. Good reason then that they be Judges of that use and those customes They may claime this authority by a long prescription it has been allowed them in all Parliaments and by all Parliaments hitherto c V. 1 H 7. 3.4.20 3 Just 3. They in all the books doe not onely expound interpret and deliver the sense of Statutes but in Parliaments too upon consideration of a Bill in the 43 and 44 of Queen Elizabeth it was resolved so we finde a book speak By the chiefe Iustices Popham and Anderson and by divers other Iustices assistants to the Lords of Parlia ment in the upper House That leases to the Queen c. against the provision of the 13 of El. are restrained by the same act d 5. Rep. p. 2.14 The Lord de la Wares case concerning disability temporary and absolute was in a Parliament sitting referred to a Committee which at the Lord Burgley's Chamber in White-hall heard what could be said by Councel in the presence of the two chief Justices and of divers other Justices by whom it was resolved e Rep. 11.1.39 El. Here is an allowance of the latter as wel as former ages whatsoever the change may be let us change till we shall not know our selves if we retaine any face of Law or Judicature so it must be I never heard nor those who have heard more of such a Law yet which could be learned practised and understood without study and which all men but those who had studied and understood it might be Judges of The professed enemies of the Laws of England as such lawes have not been many no not in very many ages much stirre there was much disquiet ere they were had or rather restored Never any tumults all the Histories ore to undoe what was setled I doe not remember any other Law named against it but the Law of Wat Tylers mouth f From this day saies Tiler in London all Law shall fall from Wat Tylers mouth which we can make nothing of we heare of Kets Oke of reformation nothing of his Lawes The Lawes never were made the title of a rising yet I believe under such leaders little of the building would have stood whole Those of the Roman heresie are and have been inveteratly spightfull have more then once attempted to blow the Lawes and the Nation into the ayre together according to that divine determination of the Jesuiticall Oracle that the innocent may be destroyed with the wicked the Wheat plucked up with the tares g Act. p. 93. They would have blown up all our Laws though all of them are not accused not slandered by them not in what I have seen of theirs though likely they shal all have their turns not one of them not yet perhaps traduced by them as they are offended by it if it keep their mischiefes from ripening and be executed against them though much more ancient then our quitting them and their heresies and approved by their own Clergy here but it shall be reproached by them as one of our Statutes Our Laws though necessary and religious against them being called by them cruel Laws h 3 Jac. c. 1. The Statutes of praemunire and provision c. are abominable Parsons the Jesuit that fury of sedition charges the Law of Cawdries case highly and with the least dangerous Ponyards and daggers of his society wounds as he thought the reverend reporter Andrew Eudaemon as others Cacodaemon Johannes in love with the Straw miracle of the Gunpowder Martyr Garnet condemnes our Laws and Courts and the triall by twelve men like Polydore Virgils Ghost in his words He was of Crete so he saies and if we believe him in that we must believe him in nothing else The Jesuits were ever undermining ever active full of plots and treasons and their hatred cannot be imputed to any other cause but this for the ills they had done they feared the barre yet this arrogance they might take from the house of pride of which they were The Prince of which has ever till we left him where he had left the purity of the first ages encroached upon our Lawes and government praetending every where a certain assistance of the holy Spirit for which he is to be obeyed a course I would advise those to take who inveigh next and have nothing to say to the purpose The Pope as the Venetians in the interdict tell the French Kings Ambassadour attributes to himselfe authority to define and determine even against the opinion of all the world what Lawes are just and unjust as Dr. Marta Besides the kisse of the blessed feet he has the free faculty of making and abregating Laws i D' jurisd c. 46. Whence this authority is derived some are not assured they referre it to the spirituall authority with which the temporall is imagined to be indirectly given Others speak plainly that he is a temporall Monarch over all the earth that he might receive appeals from Princes give Laws to them and annul those made by them That Ecclesiasticks are to examine whether the Lawes of Princes be just and whether the people be obliged to obey them if we doubt this think it with the most if we tell the flatterers and Parasites of this chaire the former ages heard nothing not a word of all this They may reply in the words of Paul the 5. That the former Popes did not wel understand themselves a great and certain mark of this

present infallibility To keep on the old course of passing from the matter to the persons there is yet another quarrel of this kind which I wil speak to in a few words There is one fling at the Officers at the ministers of the Law and Courts If there be any imperfection any negligence omission or mistakes in the execution of things as it is but an huge folly to conceive men so full of faithfulnesse and vigilancy but there may be I see not why this should be a blemish to the Law unlesse it may be thought to favour murder or theft because they are done Lawes can but forbid and punish offences if the vices or faults of men must asperse sciences professions and orders and be an argument to demolish there wil not any where be either science profession or order left and long agone had this been heretofore allowed there had been none of these left to demolish The Writs of the Law Writs of which I shal next speak are said by those who are for the Becselenisme of the British antiquity to precede the Normannes the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is used by Zonaras for an Epitome or concise writing a writing which conteines the sum of any matter it may goe amongst the Graecobarbara l D. Spelnt verbo Breve from the Empire it came to the Church Those of Rome a long while have had their Apostolicall Writs In the Lawes of King Henry the first amongst the publique offences for which men were amerced to the King after breach of the peace which leads the order follows the contempt of his Writs m Ll H. 1 c. 13. where they are first heard of These Writs at the first were but the Kings letters the Monkc of St. Albanes makes them the same In the controversie betwixt William the Chamberlaine and Gilbert of Cymmay concerning the Church of Luiton A certain Writ of the King meaning Hen. the 2. saies he was brought as a praecept to the men of Luiton to recognise the truth of the right of the Church c n Vit. Abb. 67. Another place has attached according to the law of the Landby the Kings Writ o ibid. 143 elsewhere they are called Letters the Letters of the King and of the Chiefe Justice are set downe in this Historian p ibid. 75. who againe in the Majority of King Henry the third saies It was provided of the commune Counsell of the Arch-Bishops and Bishops that the Lord the King should have his Seale and his Letters should run q Addit ad Paris 151. In the Chapters of the pleas of the Crown in the time of Rich. 1. recited by Hoveden an Historian somewhat more antient then the other is said And of all recognisances of all pleas summoned before the Justices by the Kings Writ or of his Chiefe Justice or from the chiefe Court of the King r Hoved. 744. v. 549 in another place the Writs of King John then Earle of Moreton are said to be taken with his Messenger containing his commands his Mandates by the Major of London who delivers them to the Arch. Bishop c. who calling before him c. the Barons showed them the Letters of Earle John and their tenour s id 735. s 30. A Writ with us is a rule of Law which briefly tells a thing t Bract. l. 3. c. 12.15.413 which in a few words delivers the intention of him who brings it some vary according to the diversity of the Cases Facts and Plaints There are as many formes of them as there are kindes of actions they ought not to containe either falsenesse or errour No man is bound to answer without a Writ u Fleta l. 2. c. 12. l. 6 c. 35 36. Brit. c. 84. The Civill Law makes this necessary it makes citation parcel of the Law of Nature w C. de unoquoq F. de re indiciar c. c. 1. The Writs as Doctor Cowell containe a summary and succinct repetition of the fact which brings forth the actions x Instit Ju. Angl. l. 4. tit 6. well may the Lord Cooke tell us they are so artificially and briefly compiled as there is nothing in them redundant or wanting y Inst 73. and Sir Thomas Smith Secretary of State and Privie Councellor to Queen Elizabeth said It was not possible perspicuously to comprebend so much matter in fewer words Concerning the execution of Writs the direction returnes and processe c. upon them he who would see what a strict care the Law takes that things be done justly speedily and without deceit must search into particular cases which it would be too tedious here to tarry upon Pleadings In the next it will not be impertinent to consider something of the Pleadings in the Actions of the Common Law which whoso shall well consider he shall not finde them so horrible as some imagine them nor the formes so intricate and dangerous as they are misconceived Pleas must not be confused and misordered First the Jurisdiction of the Court must be pleaded to then the person c. Every Plea is to be direct not by way of argument c. and to betriable pertinent to the pleader it ought to have its proper conclusion Things apparent need not be averred surplusage if not contrary to the matter hurts not It must not containe multiplicity of matter to the same thing there must be certainty and truth in Counts c. the replication must not depart from the Count nor the reioinder from the Bar c. The Count must agree with the Writ if time order and forme were not observed in these things the Judge and the Jury would be intangled invincibly and Suites would be endlesse If we look on the Libels in the Civill Law and the Declarations of the Common Law on the defences of the one and the barres of the other on the judgements of them both we shall finde nothing in those of the last too narrow nothing which can be left out The example of the action of injuries and of the action upon the ease which are the same are compared by M. Fulbeck z Paral. 10 Dial. 67. I will say no more of the Libell and Declaration but this That the first exceeds the last very much neare a third part in length things quite differing in nature enough to encumber the understanding being brought in I will onely compare yet not at large the defence of this action of Injuries of a lesse bulke then the Libell and the barre in the action of the Case after a tedious recitall of that which makes little of the malice c. of the actor after a long prayer to be absolved and that the accuser may bee condemned in charges stretched neare to the length of twenty lines where the Latin runs as in all Lawes it must rather in a legall then an eloquent stile The defence speaks thus Inprimis igitur dicit

is to buy by the lump tenuta seisin venter a woman with childe or as Alciate a posthumus fusiones publique Functions Whoso shall turn over the Laws of the Frankes Lombards Boiorians and other of the Teutonick Nations he will meet Mormoes and Goblins formidable indeed such as the most knowing glossaries must be contented to recite only or wisely to passe by in sacred silence which yet will be read by those who admire not themselves and their own age too much who will allow in some proportion both wisdom and civility to their forefathers and are curious to be satisfied how they lead their lives upon what policie and order the Empire of the German Franks Lombards rose and moved for however governments may begin Justice good lawes assure them give them vigour and continuance lasting violence had been a fire which suddenly would have burnt their Trophies these German Conquerours how fierce soever they seem in their first appearance of all which might be said which is related of Mezentius Dextra mihi deus c. Or the Quadi a part in that Eductis mucronibus quos pro numine colebant the sword was their deity spent the yeers of their entrance into their Provinces to compose mindes their first peace and rest from the turmoils of war was ever dedicated to the polishing and smoothing of those foundations which else laid with too hasty and too rough an hand would have fallen alone Augustus was more happy in his moderation then in his victories it might be thought he subdued his Country to preserve it his peace was so sweetned by the equity and clemency of his laws that all the calamities of the triumvirate and its proscriptions were forgotten no tears were left but such as the whole world powred out to his memory There is its honour due to antiquity yet there may be met with in the lawes of these people though they seem what Du Bartas speakes of Marots verse torne Monuments and age worne Images that policy and excellency of constitution which if we will not imitate perhaps we can never exceed It is observed for the honour of our English that an Earle of Arundel in his travels to Italy and the Lord William Howard in his Government of Calice although they understood other languages would not speak to any stranger but in their English And that Cardinal Woolsey in his French Embassie would not suffer his attendance to speak any tongue else to the French And I know not why our English where it is more pure and lesse corrupt where it is a mother tongue and the best Dialect of a mother tongue should not have the esteem it is worthy of It was made none of the least of venerable Bede's praises that he was learned in it A great man before mentioned rather transported with choller against som of the Profession and indirectly I thinke then out of his own judgement is very angry at the Law which he says cannot passe the Seas It were wonderful if it shou'd who looks that neighbourhood alone should make Nations like the same things I have shewn already what great agreement there is betwixt the French and us enough to make it evident they and we had but one stock in Constitutions more ancient then the Civill Law there and it takes off nothing though our Law would not be known in the Courts at Paris This Author grants no man he sayes can deny it it is a sacred both Thing and Title our professors wil not envy the learning of Brissonius his Lexicon or his formulae so much praised and it is confessed we cannot shew any Terms of law like them yet are ours to as much purpose they interpret the words of art of our homebred Lawes and I cannot tell what is to be required more All men may know that as there have been additionary Laws since the Saxons so have there necessarily been additionary termes since which according to the custome of the times when the Law began to speak French were French and when they began as good perhaps and as pure French as any then spoken The leagues and agreements concerning the Sea betwixt King Edward the first and other Princes shew what the old French was by these words soffrera souccours resceipts Pees Trewes subgitz forspris nadgairts c. x D. Seld. Ma. Claeus 267 276. The Lord of Argentons History much later manifests what the language was and how it has changed These terms are so enterwoven as the Lord Coke into the Lawes they cannot possibly be changed I wil appeal to any man who understands the modern French for many of them are yet retained by it whether any words can more aply hit the sense which these signifie there is a supposition where these objections lie that if the great Lawyers abroad should come hither much amazed they would stand at our voucher cited for a big word like to tear the ear but unluckily brought in it is yet in the French advocare to vouch call in aide in a suit and certainly was understood by some of the great Lawyers Rigaude and Bignon being such as had the word bene antique indeed would not have been amazed at it They were not confined within the knowledge of their own age onely what is much to Bignon's honour Sir Hen. Spelman acknowledges himselfe owing to him for many things in his Glossary Garrantie is the same yet with our Warranty Pleviner to plevin give surety saisine is yet seifin rebutter to repell as the heir with us is repelled by the Warranty of his ancestors Larcin is theft fellony robbery fee demain or domain prescription Escbet rent as we use them nampt is our naam halfe withernam a distresse briga with which by this author in another place the professours of our Lawes are reproached and have the stile of his barbarians has been continued amongst them ever since Edw. the 3. before which it was but rarely used yet is in the modern French viz. brigue for it signifying contention or wrangling The onely man abroad who may seem an adversary is Hotomanne a Civilian very learned but I believe not at all in our laws a man of a peevish heady temper who writ against his own State and fled for it yet is he not so much an enemy to the Laws of England as to Litleton's tenures the book so called which very probably he never understood in his Comentary of the feudall word in the word feudum he writes thus Stephane Pasquier a man of an excellent wit c. gave me an English Litleton in which the Laws of the English feuds are discoursed written so rudely absurdly and without method that it appeareth easily to be true which Polydore Virgil in the English History writes That foolishnesse in that book contends with malice and the study to calumniate Here is his own judgement seconded with the censure of that uncleane beast Polydore whofreely indeed as is said railes in that book against

the Law yet no where in it I think once naming our most reverend Judge Litleton He cals the Laws in just and the Lawyers or interpreters of them ignorant speaking of those of the time of William the 1. upon a supposition that the most of the Lawes were Normanne He and his book are said to be of great account by Dr. Cowel in as much esteem with the students of the Common law as Justinians Justitutes are with the Civilians saies the famous Clarencieux The Lord Coke sayes This is as absolute a booke and as free from errour as ever was writ of humane learning y Pres upon Littlet r. 2.67 r. 10. Epist according to the Judgement of a Court before Litletons word wil passe every where ipse dixit carries things as Master Fulbec Litleton is not the name of a Lawyer but of the Law it selfe more then can be said of any Civilian one or other Dr. Cowel blames his Civilians much that shey were not onely guests and strangers but infants in their own Commonwealth that the most know as little of our Law as the common people and I cannot imagine how by a sight of Litleton Hotoman should know much it is not unreasonable notwithstanding all his learning to suppose with Littleton alone he did not understand Litsleton it would be taken as justly it might either for foolishnesse or malice indeed the greatest possible for the highest impudence if any man so much a stranger to the terms and Language at the first sight meerly by guesse should as slightly condemne the Pandects full of contradictions and needing exposition and amendment as is before shewn out of the Civilians themselves whereas Littleton is as fundamentall as any Law can be and every sentence of his is a principle Nor can any man but wonder at the expression of malice and study to calumniate the book through by which we may see how it is understood being onely a bare collection of special cases under their titles or heads authentick and binding because it is made and composed partly of the customes of the ages before partly of the judgements of Courts and of the Statute lawes without any controversie with any man without any reflexion upon any other law upon any mans person or works saving that once he saies he had heard say There was one Judge Richel who setled an estate intaile with perpetuall remainders with that clause of perpetuities since used but against law that upon alienation of the eldest sonne c. his estate should cease c. meerly ayming at the publike good which makes me thinke here must either be a great mistake in the sense or of the book it selfe Litleton then was not Litleton now The uneven ruggednesse of the French wil not suffer any man to be eloquent Laws as Cicero ought to be be deare unto us and to be prised not for the words but for the publike profit and the wisdome of the Lawgiver Yet is not the stile of Litleton rude but plain as the best French then was plain enough neither neat nor quick as will appeare by the Lord of Argentons stile noted before who lived in our Judges age and writ then most befitting a Judge and the gravity of the subject To the absurdity of the writing part of the invective charged in the slander which is true as is shewn from testimonies of the side of the old glosses I wil reply but this it should have shewn how and where otherwise this is a generall charge which has nothing in it but the malignancy of an enemy from whose rash and unjust censure the happy memory of our Judge may justly appeale to those who know him It is a childish impotency of the mind out of vainglory to calumniate illustrious personages farre enough either from honesty or discretion The haughtinesse of Pompey to raigne alone is with the most nor is it fair to bequarrel and hate all other Nations because they drink not the Loire or Rosne or submit not to I know not what universality as if Alexanders world were returned again not to be ruled but by one Sun What concludes here and makes up the aggravation is extended farther by others and made a cavil it is no more against the Laws That our Laws want method Method never yet so much as a pretence to abolish laws How easily the Pandects may be matched for method I shall demonstrate by the order of the Common law of England After the Curiate laws of Romulus those of Numa concerning Religion the laws of the other Kings all taken into the books of Papyrius and therefore called the Civil Papyrian Laws the twelve Tables followed then the Flavian Helian and Hortensian the Honorary Law of the Praetor the lawes of the people called Plebiscita the decrees of the Senate called Senatusconsulta the law of the Magistrates and customes the laws of the Princes frō the law Royall the opinions of innumerable Lawyers many of which are recited by the second Law of the original of the Law their volumes were huge saies the Emperour z Proaem Instit 5. There were as the glosse three hundred thousand Verses Laws or answers two thousand books and many other Laws so confused so infinitely extended they were not to be shut up in the capaciousnesse of humane nature Out of all these were the Pandects composed and digested which are wel digested but as is said the Code and the Authenticks are not How much more easily might the Common law be ranged into an exact method may quickly be found not being composed of any such bulk not drawn out of any thousands of such answers and books inclosed in a dozen or two of small volumes exceeded in the quantity by the present Imperial lawes hundreds of times over the foundations of it as of all just and civil Lawes are the lawes of God of nature and reason and of Nations as Dr. Cowel Our Statutes and Customes are derived as all just laws else and consentaneous to reason from the Law of nature and of Nations a Inst jur Angl. 25. And again The lawes of England as others over the Christian world are far enough off from the civil Imperial law yet are they tempered seasoned with the equity of it b Praef. ad Inst In his Epistle dedicatory before the Institutions They are not far enough off * v. Chap. 2.50 here as very probably some of these Imperial lawes might come from Rome to the Saxons with their Religion There he speaks thus After I bad spent some yeeres in the comparison of these lawes viz. the Common and Imperial laws I found the same foundations in them both the same definitions and divisions of things rules plainly consentaneous neer the same constitutiom the difference onely being in the Ideome and method Our Common law is nothing but a mixture of the Roman and Feudal laws and in his Epistle to the Reader before his Interpreter he sayes He has in

second of Richard the second m 2 R. 2. c. 1 Wills that the great Charter and the good laws of the land be firmly holden The 3d. That the good laws and customes c. be bolden n 3 R. 2. c. 1 v. 5 R. 2. c. 1 7 R. 2. c. 2. 9 R. 2. c. 1. The 4. of Hen. the 7. And over that his Highnesse shall not let c. but that he shall see his laws to have plain and true execution and his subjects to live in surety of their lands bodies and goods according to his said laws c. o 4 H. 7.12 c. 9. The 32. of King Hen. the 8. saies The King calling to mind c. that there is nothing within this Realm that conserveth loving subjects in more quietness rest peace and concord then the due just ministration of his laws c. The first Parliament of King James has The fundamentall and ancient lawes which this King as there is said expressed many waies how far he was from altering or innovating whereby c The peoples security of lands livings and priviledges both in generall and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present confusion wil fall upon the whole State c. p 1 Jac. reg c. 2. Twice in Petition of Right is this expression and other the good Laws and Statutes once the laws custows once franchise of the land The conclusion is all which they humbly pray as their rights liberties according to the laws Statutes q 3 Car. Reg. If publike authority authority of Parliaments authority of the English Nation in all ages can make an authentike and valid testimony by that authority we see our Lawes are facred pious good mercifull and just their ends aym meerly at the peace and happinesse of the Nation the only ends which Lawes should aym at and these being had he must forfeit the Noble reason of man who desires a change which whensoever it shall happen by the judgement of a Parliament like the change of death must be fatal to the State Though here is already the weight I promised and such as all English men should allow I wil adde a testimony or two more of private men not of the profession yet no strangers in the Law as the most knowing Sir Henry Spelman Of all municipal lawes our law plain and without dresse as she is is the most noble Lady replete with all justice moderation and prudence c. As Sir Thomas Smith the people here are accustomed to live in such sort that the rich have no more advantage then the poor Dr. Cowel a most knowing Civilian very judicious in our laws sayes of the two Benches They decide all causes religiously according to the rescript of the Common law r Justit Angt. 24. sect 2. a most learned Knight of our age praises highly our forefathers for their vertue abroad and their exquisitenesse of counsel and judgement at home amongst whom as he in Livies expression The commands of the laws were ever more powerful then those of men and Iustice was administred with that sineerenesse and judgement you would believe it to have proceeded from Papinian himselfe of all men who are shall be or have been the most skilled in the laws ſ D. Rog. Twisden praefat ad Ll. Guil. 1. Hen. 1. Our laws are not written in any general tongue and so cannot easily be known by forreigners but by the effects long continuance here or acquaintance and seldome so strangers every where for the most part desiring to take notice of every thing else rather then of laws The French man who wrote the estates of the world discoursing of the charges practised in other provinces in his time sayes But the liberty of England is marveilous in this regard no Country any where being lesse charged t Les Esta c. p. sci●ur D. T. V. Y. v. Sir Rob. D alingt surv●y of Tuscany The Lord of Argenton as much experienced as any man in his age or perhaps since who had seen Venice and the order of things there and praises it sufficiently yet speaks in his plain manner of England Now according to my judgement amongst all the Seigneuries of the world which I have had any knowledge of where the Commonwealth is best managed and where there is lesse violence used upon the people it is England u Liure 5. It was otherwise of France in the days of his Master Lewis the 11. In many places so grievous were the Taxes men women and children were forced to draw the plough by their necks and that by night for fear of the Collectors w P. Mat. Lon. 11. If we look upon the Peasants of France flead alive the Villano or Contadino of Italy either under the Spaniard or Venetian Where Fruit and Salades * Sir Rob. Dalingtons Survey of Tuscany nay and Asses dung all things whatsoever pay Tribute but mens sighs where one word gabelle is of the largest extent and more used then all the other in the Languages leave out the chains of the Turkish Gallies and the most sad thraldom of those Natives of America under the Spanish Conversion of the newest Fashion Baptized but as Bede says of the Protomartyr Albane in their own blood we shall finde nothing so miserable so unhappy in Nature Our Yeoman as Sir Tho Smith is a free Englishman a man well at ease and having honestly to live He savours says a Reverend Church man of our Nation of civility and good manners living in far greater reputation then the Yeoman in Italy France Spain Dr. Heyl. Geegr or Germany I may say for some of them more freely more plentifully then the Gentry of either Spain or Italy being able to entertain a stranger honestly dyet him plentifully and lodge him neatly We may read the words of a Parliament to this purpose after the discovery of the Powder-plot No Nation of the earth hath been blessed with greater benefits then this now enjoyeth x 3. Jac. and whatsoever benefits we have received we owe them all to the Laws they are derived to us thence we can attribute them to nothing else Honour given to the Professors of the Laws As Justice is the most excellent of all vertues seated in the Will as more sedate and nearer to the reason its object being the profit of others So it is with good cause preferred before Fortitude as Peace before War which ought to be ruled by a certain Justice and if all men were just there would be no need of Fortitude The ancient Chief Justice whatsoever may be talked of the Constable or others was the Great Officer of State and as he had more power so had he the precedency of all men else Odo Earl of Kent Chief Justice in the time of William the 1. is called Prince of the Palace by Ingulphus y

the poore which will not please much These meek ones are meerly for taking away neither hath this Communion been faithfully observed by themselves The successor of the great Prophet at Munster their stie or kennell not only claiming the throne of his father David as they speak but the Empire of the whole Earth So only power and riches in others are abominable and unlawfull Sleid. l. x. And in the siege of that place their mock-King had his private store-houses for himselfe his phrenetic apron Peeres and whores whom hee feasted daily while the racaille the rascallity of the herd drop down on heaps starved in the streets But although we cannot imagine Adam the most wise and most excellent of men and the Patriarches of the new world who out-lived the ages of Kingdomes and Common-wealths who had lives as long as the arts are said to be so rude to live on prey and the snatch with as little honesty and civility as wee finde amongst the Alarbes or those of Florida whose character is that they are barbarous sordid and inhumane although I say wee cannot imagine this and it is demonstrated that there was dominion and propriety in the Golden Age as men love to call the first time yet there was no such great need then as since to make division either of cattell or pasture for gold and silver were then of no use and in Mexico and the West served onely of late for armes and common utensils the number of men being small and not divided perhaps so much as into large families when dens and woods are fancied houses and coverts and skins of beasts clothes when to omit fancies men were more civilly bred and knew more from the instructions of the Patriarkes then as it is likely any since whom they obeyed and reverenced willingly more out of piety then fear as in a paternall government where the Father as chiefe of the house was the Prince and Priest of the Family and every wrong was done to a brother an unkle or a kinseman But when men began to spread into Families Tribes and Nations not contented with the homelinesse and simplicity of their Fathers nor with things freely growing and at hand every man imployed himselfe to get those things which he conceived necessary either for his subsistance or pleasure which no man would have done if like Virgils Bees or Oxen he had not toyled to his own benefit This made Noah plant his Vineyard and others busie themselves to finde out all those arts which might either make the earth fruitfull or delight and profit themselves so that as we finde it in all Histories there was a necessity for propriety then And as with great reason and I may say of divine right propriety came in without great wrong and universall confusion it cannot be taken away the least concession the least slackning of this law of propriety must be fatall a huge licence and deluge of injuries would follow when our experience makes it manifest that lawes in force and all the Courts of Judicature cannot reftrein the injustice of wicked men from griping the just and lawfull inheritance of others kill and possesse would bee familiar Our owne advantage would be the measure of right we should return to or rather set up that state which is called meerely naturall in which it is said every man might do what he listed and against any man in which every man might possesse and injoy what hee would and could wrest and force from another Those who removed the Terminall stones or boundary markes were punishable by the Civill Law w Modest l. 2. de term ● moto which certainly as many others in the twelve tables might be taken out of the Jewish Lawes given by God By whom Cursed is he that removeth the marke of his Neighbours land a plain grant of propriety if any thing can be plain at all As is observed This hath been generally received amongst all Nations if we except some few such as the Canibals of Guadalupea who yet devoure not one the other x Pet. Mer. Dec. or such savages living ever upon spoyle and inhumane robbery whom no civill eye will take to be reasonable nor manly not by the outside Cicero in the case of hunger would not take bread from another who deserved it not my life saies hee is not more worthy then such affection of minde not to hurt or wrong any man for my owne sake y Offic. 111. Zenophon tels those of Sinope that either amongst the Greekes or Barbarians where the market was denied him his manner was to take what he wanted by force yet out of necessity z Cir. min. exped 463. Armatus leges ut cogitem this was the Philosophy of the field That of Curtius has more justice in it Melior est causa suum non tradentis quam poscentis alienum His cause is better who yeilds not up his owne then his who demandeth that which is another mans If this violence were common law and allowed one hour of our greatest peace if any peace could be would bee lesse secure more pernitious then the plunder and sack of unruly warre which how boisterous soever it be like rivers overswolne returnes often into its own channell and leaves the harrassed Citizen or naked Peasant to begin sadly the world again to lay the foundation of a new fortune which may be more firme which at least for a while he may enjoy alone in the other case our owne unworthy sloth would be Zenophons necessity The Scythians as Arian having no certain seats nor possessing any thing the love of which might restrein them continually are in war disquieting themselves others a Arrian 202. Whatsoever can be said for necessity it is impious and unreasonable to frame pretences of injustice upon necessity of our own making Piety too upon which in all our distresses before our own industry we are to rely would bee no more thought of Nemo tamen armatus opem a diis petere sustinuit The fancy that there could bee any continuall justice in such communion were all mens desires and appetites more alike and equal then we can look they should be and the supposition that after the manner of a few Spartans and their Phiditia whither yet every man brought his owne proportion of meat all mankind nay the herd of these meek ones who are only to inherit the earth could incorporate into an universall Utopian communion and agreement where the Lamb and the Wolfe should reconcile all dispositions and tempers mix freely and sympathise would be as impossible as monstrous as that new and more then African generation or Common wealth where the damned are allowed procreation and shall beget others to be damned This alone may condemn these Commoners and their Communion It was never known that any of them who cry up division had any thing to divide Other hereticks there are to serve their turn at Rome if no where else

who allow dominion or propriety but so heavenly are the Nephews of Loyola and their allies It must bee founded in grace Iac. rex Cont. Card. Perren Tor. Tort. wid Apolo Barcl These have been sufficiently answered by some noble Pens of our side and of their owne Doubtlesse if there were any such thing Saint Paul either knew not of it or forgot it in his appeal Had this been Primitive Apostolicall truth our Saviours blessed legacy of peace charged upon his successors with so much earnestnesse could not have been kept two daies the waters of baptisme had quickly been discoloured with blood and although the piety and glorious devotion of some of the first converts was so forward to give every thing to the Church that by the Imperiall Edicts of amortization after it was thought fit to bee restreined Yet all were not of the same spirit some would willingly have made this advantage of their faith and ere faith it selfe could be setled have raised those troubles upon this colour in the beginning which perhaps had not only given a check and stop to the happy progresse of the first planters but with the generall offence and scandall of the most moderate in opposition have swallowed up all rights divine and humane together Farther if this were authenticke the condition of Christians would be more hard and unhappy then that of their infidelity before And that of our Saviour Seek the Kingdome of heaven first and all things else shall be added to you more specious then true and which were most horribly blasphemous meerly a show of words whereas in truth it should be seek the kingdom of heaven first and all things else shall be taken away As we have a right to our propriety by nature grace which follows it cannot weaken it not destroy it but perfect it rather This hath been long since received in the Schooles of Divines b Tert. Tert. 203 For the author of both lawes of nature and grace being the same what he has established in the one hee takes not away in the other nor doth he superinduce grace that he may untie the bond of nature but that hee may bind it the more And amongst no men I will not say are ought to be so sacred the duties of nature as amongst Christians And although the friends of this paradox may pretend there is full propriety still with or at least a condition annexed let them show how such propriety can be full and how it came to be so setled In the Pontificate of Gregory the seventh the Vice god according to the stilo novo This error began as some of their owne Historians confesses ingenuously c Godf. Viterb in Hen. 1. Otho Frisi●g l. 2. H●st c. 35. l. 1. de gest Frid. ez 1. Painfull discoveries to accomplish arts and sciences are highly honourable but in these last daies to start new articles of faith never heard of in the first and purest ages to serve the designe to extend the Papall power called omnipotency so farre that that which in its owne nature is evill by it shall not be evill at all is an intollerable wickednesse enough to make all men avoid them And since the best arguments now for lawes are from the Estate those who either by their own providence or the frugality of their ancestors are full and of considerable fortunes must know they cannot be safe without lawes the fangles of these desperate fanaticks who every day arraigne these sacred tables nor can nor will preserve them by the just and wholesome sanction of the laws obeyed and reverenc'd not by the charmes of Sybils leafes or Numa's shield did the Roman Common wealth advance her lofty head Major haereditas venit vnicuique nostrum a jure legibus quàm à par●rs●ibus No man is assured He shall either keeps his estate or transinit it to his posterity but by the lawes let the inheritance be what it can be there is more taken from the lawes which direct and fix the descent and wall it in then from our parents The poorest necessitated man amidst the calamities of this wretched life were not the law his sanctuary would yet bee more unhappy whatsoever his loathing his present condition may make him imagine oppression the heaviest of all miseries would crush him to pieces and break the repose of his shortest slumber without law as it is observed neither could the merchant passe the seas nor the traveller the highway The malice of the clowne the fraud and dark arts of the City would surround us and what most we prize though wee want the comforts of it no mans life cold be safe a minute nothing would bee sure nothing certaine without law There could be no commerce no conversation amongst men Kingdomes and states as Sir Iohn Davies would be dissolved this protects the orphan the widdow and the stranger d See Sir I. Dav. Preface this is a pillar of fire a glorious starre guiding all men through the darknesse of humane actions I know there are those will tell us that though this be true these paines may be saved that where there is no transgression law is in vain and a caution too much that there is a succession of men entered or ready to enter with the Chiliasts if there bee room then non vox hominem sonat as the Donatists used to brag of themselves where every one shall be good and just so clean so pure and angelicall that they may say beyond the Gnosticks not onely that they like not the lawes of nature or men but that they were not needed they could live innocently and righteously without them I wish it but I hope no man will thinke me a Timon a man hater if I cannot beleeve all this I have not found it so I should think it more safe to trust lawes then men he who would shake off the lawes will hardly be bound by conscience I cannot conceive otherwise but if things were come to that that Lawes and Chancery were to be seated in every mans breast there would be much more dishonesty then there is our owne interest would be the principall mover There has been much foule play much deceit under the shadow of goodnesse there may be a sanctity meerely of the face that of the Pharisees was no deeper Mat. 23. They devoured widdowes houses and for a pretence made long prayer It will be time now to show what law is then to descend as orderly as I can to our own lawes and to make it visible that there is nothing singular in them from other the most ancient laws of Christendom But wherethey excel them in justice mercy and certainty and in antiquity too if wee look upon the fundamentals and back to the first rise Next to remove those false calumnies which the rash lightnesse or malicious ignorance of the adversaries as malignant clouds betwixt the sun and us has cast upon them Vt quisque est imperitior

who would have Law to rule the City seem as if they would have God and the Laws to rule but those who would have man to rule give the command to a beast Not that he condemns Magistracy which he often much magnifies but that he would not attribute all things to men By Law is understood natural Reason divinely infused upon which is framed a certain form of living By man humane Authority Such is my will my pleasure my affection are words might become Ket's Camp and his company of Governours They would sound horribly in a Judges mouth Therefore Rinalde protests in Machiavel That he would not esteem it worth much to live in that City where men were of more power then the Lawes Bragging of our own subtleties and contrivances is nothing to the purpose to make this invalid too often we have our ends and designes in them which the Law doe's not allow and hence grows our distaste how often has the case of perpetuities been over ruled it being against God and Nature that things here should continue without change where the change is just and against reason that an estate should continue in one family to the worlds end in such manner that no owner at any time could either advance his younger issues or pay debts out of it but that those of the descendents capable never so disobedient and unnatural should take all yet as if every man might make Lawes for his own patrimony how lawlesse soever and exploded this perversnesse will not be given over although according to the rule of that Reverend Chief Justice upon this case Mens Policies are to be fitted to the Lawes not the Lawes to their Policies s Sir Hen. Hub. 134. This writhing the Lawes * Pigh controv Ratis l. 3. as the Papists deal with the Scriptures which they make a nose of wax is an impiety which Livies remembers with the neglect of the Gods next it t lib. 2 A most reverend Bishop tells a Roman Adversary as ill satisfied with our Lawes as this State which made them was with the Treasons of his Order That he is unworthy to be indured in a Commonwealth held with Lawes who departeth from them u Tort. Tort. 145. We read That is lawfull which the Law of the twelve Tables and the Iulian Law permitteth w Wel. 7. si paciscat Dr c. li. 1. D. de Just jur and in the same Civill Law we say That is lawfull which by the Laws the custome of our Ancestors and institutions is allowed Every thing we may or can doe is not lawfull x Cicero Philip. 13. in which sence Vlpian interprets that clause of the Edict Quod eius Licebit And againe that is lawfull which is permitted by the Lawes to which is opposed unlawfull and that is unlawfully done which is done against the Lawes Customes c. y de legat l. 3. Although the Romans as the Spartanes from whom they are borrowers had their Customes unwritten which was Law approved onely by use Quibus saepenumero saies a Civilian Gliscentibae perniciosissime Lacones errabant z Lexic Ju. Ciu. tit Lex Yet to the end that neither favour nor hatred might approach the tribunall nor judgement be left to the arbitrary will of man and that the Lawes might be made certain and notorious the greatest part of the Roman Lawes were written that no one as is said might doe and undoe binde and loose at his pleasure because of humane frailty all men being liers it is not safe to trust the Magistrate without a written rule as another a ibid. The Jewish Lawes of the Decalogue by Gods cōmand were written the Lawes of the Athenians were written by which they are said to excell those of Sparta b ibid. The Republique commends highly the publishing the twelue Tables then as that the Magistrates were constrained to governe the Subjects following these Lawes so that Equity and arbitrarines had not any place c Bod. de la Rep. Liure fixieme Charendos chosen the Lawgiver of those of old Sybaris or new Thurium in Lucania now Bafilicata chosen so Diodorus to prescribe them the manner how to live having diligently looked over the Laws of other Nations and digested the best into one body commands in no sort to dipart from the words of the Law or from the writing à legis scripto d Biblioth Li. xii his reason is from the absurditie that private men should meddle for this he reserves to the supream power though things be amisse He speakes not more to Magistrates in his prohibition then to any others but generally nor of equity both which Bodin would seeme to prove by this place e Republ. L. sixieme And although in a Court proper a Judge of Equitie is to be allowed yet if it were allowed to all other Courts to expound the Law against the Letter perhaps meaning of the maker according to conscience as w● speak Equitie would as more plausible be every where cryed up like Caesars consulship the Law suspected in every case as unjust in time being lost in opinion would weare out and fall insensibly as uselesse and in all Courts there would be nothing but equity left which aequum bonum or equity is in plaine termes nothing else but absolute and arbitrary power King Francis the first of France having subdued Savoy and driven out Charles the second the Duke the new Magistrates substituted by him gave judgement according to equity and often against the Customes and Law written the Estates of the Country were quickly wearie of this equity they could finde no justice in it and therefore Petition the King That those Judges might no more judge according to equity which was nothing else as the reporter but to tie them to fasten them to the Lawes without any variation ny sa ny la neither here nor there a thing quite contrary to the passions saies Bodin of favourable Judges f Vbi supra The mischiefes and oppressures done by Emps●n and Dudley are imputed to the Statute of King Henry the seventh authorising to hear c. offences committed against poenall Statutes c. According to discretion not according to Law and Custome of England which the Lord Cooke seemes to dislike g 4. Just c. l. p. 40. yet which is the same discretion is so he thus to be described To discerne by Law what is Iustice h ibid 41. When a Jurie doubting the Law has found the speciall matter the entrie is and upon the whole matter c. They pray the discretion of the Judges or the advice and discretion of the Justices in the premisses c. The Statute 3. of King Henry the eight of Sewers allowes to make Statutes according to their owne wisedome and discretions c. which words are to be to be intended and interpreted according to Law and Justice i r. w. Kighleys c. It was

a Virgin That after Sisters the next kinsmen were to inherit Antiquity is a notion considerable makes thus much that laws under which people for many ages flourished which use and experience have by a long prescription beyond all memorie of men approved may bee thought essentiall parts and we may say of them as is said in Curtius of the Macedons and their Alexander Amisso rege nec volebant salvi esse nec poterant But some there are whose reason is implicite though their faith be not which here might be more tolerable still calling for reason which I wish they knew when it stood before them readie without more adoe where they doe not understand where they find not the reason of things to revile the Law and cry out it is without reason It may be thought we are claiming the Libertie of the Quodlibets where what we please may be disputed without any imputation of slander or impictie though never so absurde foolish or blasphemous where the disputant used to be safe being armed with this title and I conceive it ought now to be allowed to some But to proceed the wise and modest cannot but know and consider it that at this distance and after so many ages the reasons of constitutions ought not to be enquired after otherwise many of those things which now are certaine would be subverted as Suarez The reason of the Legislator cannot alwayes be knowne This I say of all Lawes c L. 2. de Legib. c. 14. all have certaine principles and foundamentals to be granted not now to bee disputed humane Lawes are nothing else but rules by which Justice is taught yet why this particular way of remedie should be laid for that part or such a rule for another mischiefe for no doubt they would desire remedies for mischiefes which might have been and as properly for there may bee severall meanes to one end supplied another way would be a very vaine thing now to seeke into This is the opinion of those of the Civill Law though they cannot as they say give a reason of all their fiore Fathers Institutions d Leg. non omzium yet they will tell you as they have cause for it that there is reason enough in their Law and that obvious enough to those that take paines to find it in their books It has reason everywhere saies Gentilis e l. 2. Epist c 2. but not every where conspicuous Alciat blames Bartolus for denying reason to be the essence of the Law f Alciat l. 1. de verb signif what is said by Diodorus upon that Law of Charondas for the gardianship protection and education of Orphans may be said of all Lawes when understood by long studie for Revelation can doe nothing here The Law of Orphans saies he is full of grace and favour but if any shall weigh and interpret it by the superficies and barke of the words be will thinke but meanly of it but whoso looks profoundly and diligently into it he that searches to the bonc and marrow will judge it to bee made by the wisest counsell worthy singular admiration g Biblioth l. xii The age of the Law of the Land shewes its reasonablenesse Curtius did not speake at randome where hee saies nothing can be lasting which is not propped up by reason the ground of the Law is as Saint German reason the Petition of right has these words against reason and the Franchises of the Land The fifth of Rich. the 2. wills that the Barons of the Exchequer Doe right according as Law and Reason demandeth the fourth of Edward the third hath Right and Reason The mischiefe or danger attending and going along with this prying and disquisition into the Lawes is commonly a change of the Lawes which is followed by a change of manners at least if that be all Those busie Libertines Extravagants New-fangled Fantasticks whose conceptions are so admirable and who can so easily over-doe that which by the testimonies of all orders of Englishmen of all ages as I shall show in my next Chapters has beene concluded to be most excellent would serve their Countrey better and show more care of its quiet and peace if they would obey these Lawes alreadie setled then by troubling themselves others in that which very likely neither themselves nor others shall be happie in if it take effect and how ever ere this Goal be reached too much must be ventured in the way the multitude is not to be let lose for it the rable ignobile vulgus either in the Citie or Countrie have their Trades their Husbandrie to attend to busie themselves in those are their Artes Laws and Government policie are above them Nan est consilium in vulgo Mount Sinai wher the Law was given was sanctified God appointed bounds to be set about it the people were not to touch the border of it nor to come neer it If this sweet and beautifull garden be over-grown with a few weeds it would be no discretion to turn Herds of uncleane Swine in to root them out Some Chariotiers drive not easily let the House bee fowle as Augeus Stables we should not open the flood-gates of the deep strike like Aeolus the den of the Windes and pray in aide of the stormes and tempests and the Sea it self to cleanse it rather then the precious Pallas of their braines should not bee brought forth Some new Lusinia or Vtopia might be found out where with more innocencie their new Common-wealth might be set up He that will judge saies Aristotle h 2 Top. It is better to judge according to the Lawes then out of a mans owne knowledge and sentence although a man out of knowledge may see clearly yet I may say the Lawes have more eyes then Argus they see with the eyes of many ages with the eyes of all the most noble most wise most learned Counsellers of State and Judges of all the most judicious pious and peaceable Citizens of this our Countrey The ignorance of the Judge is the calamitie of the innocent i 2 Just 30 So it must be here of the Law I speak not of polishing refining or ading to the Lawes to compleat them where they are not full may be over-reached by the cunning of injust men had not this been often done the Lawes had not gained the perfection they have now attained but I say this is not to be expected not to be pretended to in the street where nothing but noise and clamour can be had nor can he who removes the angular stones be said to repaire Aristotle thought that Lawes received were not to be changed although there were some incommodiousnesse in in them k Pol. 2. And Cleon speaketh thus in Thucydides his sence and words A Citie with the worst Lawes immoveable is better then one with good Lawes not binding or as I may say subject to to the capricious humors of every peevish shallow tradesman of

of old Greece or Rome more renowned for Philosophy or valour then for this piety it is notorious how false that charge of breach of the Laws against Socrates was They who sentenced him erected a Socrates in brasse in the most famous place of the City a piece of Lysippus his workmanship p Diog. lac Here though Caesar had won the field Caeto was the Conquerour and might well say He had ever been more puissant then Caesar in right and justice q Plut in catone utic Plut in A. ristid 623. and that his life was invincible For this reason had Aristides that most illustrious title the just a title given to that late victorious King Lewis the 13 of France if titles are specious from subdued Nations as from Crete Numidis Africa Asia Dacia c. How more illustrious is that by which is signifyed not the Conquest of men but of injustice of that which is the enemy of men every where Bastards as Cardan would have it are not therefore wicked but such says the illustrious Scaliger which goe false counter and beyond what the Laws command r Exerc. 265. Those of Crotone in the upper Calabre protest they would sooner die then mixing with the Bruty those of the lower change into strange rights manners and Laws ſ Liv. l. 24. It is memorable what a Persian Collonel speaks to Themistoeles of Lawes Stranger my friend says he The Laws and Customes of men are different some men esteem one thing honest some another but it is very bonest that every man ●●ep and observe those of his own Country t Plut. in Themist We are the most ingrateful of all men for those benefits we receive from our Laws if we be not zealous for them if we do not strive with all the world in that lawful glory of obeying Laws we may call the Law of the land most sacred as reasonably no doubt as Justinian calls his so I will shew how this and all additions of dignity else are due to it And now that we may not be ashamed of obedience that we may not so much unman our selves to bespeak and worship an unknown Goddesse though as short of what should be as much imperfect as the Fuller earth and sea are crowded into a Globe I will say shorter so far am I from promising and I believe he that makes the next sally may be short for it must be a great hazard a great adventure to praise those things which no men could ever dispraise if he that writ Trajanes Panegyrick could not do him full right as I cannot think he did what can be said of these Lawes which had more then twenty Trajans for their founders with their Senates of their worth that if after the old trick you should call the Gods in nothing could be got by the voucher I say that we may not be ashamed of our obedience to such Laws I will show what they are and which is the best demonstration I will shew what this tree is by the fruit The Law of England is that which is called Common Law of England The Common Law explained and declared by judicial records and supplyed where the plainness of it cannot reach the injustice and deceits of men practised in the later more crafty and wicked ages by that Law which is called Statute Law u 1. Inst 11 besides which there are reasonable customs c. The Common Law excelleth the Statute Laws and may controle Statutes w Hub. l. 5. E. 4 40.4 Inst 42.3 Inst 13.77 2. Inst 526.588.518.11.6 7 8. If as the Lord Cooke they be against common right or reason repugnant or impossible x Sir l. Dav. Pref. r. 8.118 Dr. Cowel a Civilian yet very knowing in the Common Law sayes It is derived from the Law of nature and of Nations as well as any other Law whatsoever consentaneous to Justice and reason y Inst Jur. Anglic. 25. Dav. rep 30. Postrat As Moyle We rule the Law according to the ancient course z 33. H. 6.8 And as Ashton there a f. 9. Where it hath been the use of all times to wage Law and no other way this proveth in a manner a positive Law for all our Law is guided by Vse or Statute And Prisot where Ashton says this as a positive Law says it cannot be for there cannot be a positive Law but such as is judged or made by Statute In the same Book Fortescue says The Law is as I have said and ever was since the Law began though the reason be not ready in memory yet by study and labour a man may finde it b E. 5. and Markham a chiefe Justice c f 24 4.41 It is good for us to do according to the use before this time and not to keep one day one way for one party and and another day the contrary for the other party and so the former presidents be sufficient for us c. And Ascue Such a Charter hath been allowable in the time of our predecessors who were as sage and learned as we be d 37. H 6.22 4 Inst 165 Dact. 17. all Commissions of Justice use to run according to Law and Custome of England as of Oyer and Terminer of Goal delivery of the peace c. The Writs run To take that Assize or do that c. according to Law and custome e Nat. Brev 186.118 c. there is Custome of the manner f Na. B. 3. Custome of the City g ibid. 22. as Sir Iohn Davies in his Preface to his Reports long experience and many tryals of what was best for the Commonwealth begot the Common Law This Law as the Spartane Law and part of the Roman Law in imitation of them is said to be unwritten and preserved in the memory of the people yet is there little of it if there be any little but may be found in the book Cases the Romanes called their unwritten Law Custome Custome so they approved by the manners of those who use it obtaineth the force of a Law written h Just Inst L. 〈◊〉 2. and again without writing that becometh a Law which use hath approved For continual manners approved by the consent of those who use them imitate Law i Vbi sup this is matter of fact and consisteth in use and practise onely nor can it be created by Charter or Parliament for as the same Sir Iohn Davies k Vbi sup when a reasonable act done is found agreeable to the nature of a people who use it and practise it again by iteration it becometh Law and as he goes on this custumary law is the most perfect and most excellent every man in reason will grant this to make and preserve a Commonwealth For lawes made still he speaks either by Edicts of Princes or Councels of estates are imposed upon the subject before any tryall made whether the same be fit and agreeable to

complaine volenti non sit injuria he might have refused the thing his acceptance binds him to the charge coincident Hotoman describes a fief to be a benefice for which some duties are done to testifie the gratefulnes of the taker t Disp c. 1. I should think here would be the injustice That the whole benefice should be enjoyed by the Tenant and the Granter from whom it moved be allowed none of his owne reservations to himselfe I beleeve there are few men now without harths or housholds Gods who would resufe a good manner because these tyes hang upon the Labell Sir Themas Ridleyn a Civilian fetches the Feudes chiefly from the Lombards u View c. 71. much augmented and adorned by them they might be w Gloss D. sp 256. which Lombards were Cousin-Germanes of the English Saxons whose Companions in the Conquest of Italy part of the Saxons were and their charges are almost the same with ours yet in the volume of the antient Lombard Lawes the word feud is not to be found seldome the word benefice but their are many things directly tending to this purpose as also in the Laws of the Franks called the Capitulars our English Saxon those of others The word feud is of Saxon originall feb fech from whence it comes being the same with fee in use now The greatest part of the words taste not onely of the Germane but of it 's more ancient dialect the old Saxon. x D. spelm ibid. The feuds came but of late to be a volume of the Civill Law composed by Obert de Horto and Gerard Niger under the Emperour Fredericke the first surnamed Barbarossa antiently the fee was held meerly at the will of the Lord y Ger. nig l. 1. T. c. 1. after for a yeare for life made perpetuall and hereditary by Conrad the salic the yeare 1025. amongst the Germans where the discent was as we call it by Gavelkinde amongst the French in the reign of Hugh Capet which he began in the yeare 988. in the yeare 913. as Munster will have it Conrad the first changed this custome he gave the Dukedome of Saxonie to Henry the Faulconer as a fief hereditary to the end these are his words that he might be the more vigilant to combate the Obotrites now those of the Dukedome of Mecklenburge and the enemies of the Faith After as he Otho the first who began his reign 938. and his Successors did the like z Cosmegr 346. after his defeat of the Hongres a ibid. 359. Lothaire the Emperour forbad Lords to take away the Vassals fee without his crime which some interpret signall ingratitude b Feud l. c. tit 20.23 to which Conrade addes unlesse he be convinced of the crime by the judgement of his Peers or equals of the Court c ibid. which is called Landamentum It is said of the Germans the Emperour because he cannot judge causes in all places conferres upon illustrious men viz. Princes Earledomes and feudal banners d Specul Sax. Artic. 52. as another they have their fanleben or principall fees the collation and investiture of which belongeth onely to the Emperour e Stat. German p. 2.52 These were the fees of the great Captaines or Barons called by them freyberen under which are the Medii Liberi who followed the Warre and ought homage to another as Servitors noble f Munst 145. the Land they called Terra salica was the same with our Knight service g Bodin l. sixieme c. 5. this was simply called a fee military held of the Barons and Vavasours of all which the Iaws speak where are mentioned the great Captaines who received the regall fiefs called vassi dominici who held in chiefe the middle of a lower sort who received siefs from them and the lowest to whom those gave h Feud l. 1. tit 1. sec 4. Et tit 15. Frederick the first is made to speake thus We in the presence witnes of all the Teutonic's Lombards and of the Bishops and lay Princes and Barons and Vanasours c. i Raedenic l. 2. c. 31. There is a Gavelkind as well in their honours of the greatest Houses as of the Lands which held in the Crowne it selfe till Charlemaigne and is abolished in the House of Hessen but fince the last peace The words of the Lord Arundel of Wardours creation made Earle by Rodolph the 11. for his good service and valour against the Turkes at Strigoniun and the parts about were we have created him and all and every of his Children Heires and Posteritie and Descendents lawfully of both Sexes for ever to bee born Counts and Countesses c. The ancient Saxons were divided into three sorts the Edhilinges or Nobles the Frilinges or Freemen the Lazzi or Villeins which agreed exactly with our distinctions though now their remaines nothing of the latter but the memory of it with us not yet worne out a mongst the Germans and as to some duties as tilling the Lords ground carrying in his corne c. the complaint of the mutinous Clownes of the schwabische kraisse or circle of Suevia was true that their condition was little better then servile k Sleid. com l. 5. fiefs are every where in France upon the reasons before brought in as all their old Laws Institutions by Pharamond and his German Frankes the Conquerours of the Gaules The Nobles from the time of Hugh Capet tooke their surnames from their fiefs the French have their fief dominant en royale or tenure in capite held immediately in chiefe of the King and whereof many others hold their fief of Dignities either held immediately or of some fief so held then called fief mesne a Barony or Chastelleny the feudum vexillare or fief Rdnneret The fief ample or Knights fee held of the Lords Mesne Barons or Chastellaines and their fief roturior ignoble as our Socage Wardship Fealty Homage Courts Customes Iurisdiction over Vassals are incidents of the noble fiess a name as Berault which comprehends all the species but the last they have their Cotier paying the Cens a quit rent or tilling the Lords ground c. The Cens was a Custome of the Romans and imposed in imitation of them their Villain or basest servile Tenant is yet in being they have their Court feudale or fonciere which is as our Court Leet or Baron a Court of base Jurisdiction to which the Lords Vassals owe their suites and services so of Escheates there is little difference betwixt them us in them and in the right d'Aubaine where a Stranger possessed of Lands or Goods dies not naturalized The right of bannery is the same with us which is the priviledge of having a common Mill Oven c. whereto the tenants of the Maner must resort so of the dehris for wrecs or shipwrackes of right of warren fishing and fowling of Hereot a Custome of of the Germans yet of Reliefe of escuage

Herefare with the English-Saxons Ofaide de chevels de chtvalry to Knight the eldest Son marry his Daughter their Pure aumosue is our Frankalmoigne Those of Spaine as the author of the estates of the world are Gothes and reteine their Customes though not their name since Roderic l D. T. V. Y. as Doctor Cowell a most learned Civilian if you look upon the Italians divided enough in their dominions upon the French Spaniards and Dutch our owne Countrey or the Scots you shall finde the Laws of feudes to be admitted m Jnst Ju. Angl. pref 14. Tenures are amongst the Persians n Jov. Hist l. 14. the Turkes the Russe and the Spaniards of Peru by the Ordinance of Charles the fifth the Emperour and King of Spaine o Bodin l. 6. c. 2. by all which it is clear that they were no invention of the Normans being if we father it upon the Lombard or Frank both which are the fathers of it in their Conquests and not the rather which we might upon the Teutons and Germans the common fathers of these knowne and in use long before the Normans are heard of whose appearance which showed them to the world was in inrodes and piracie wherin many yeares together from their first sally from Norwey and those parts places which is every where the fate of the most Northerne Provinces barbarous enough at this day to the dayes of Rollo more then two hundred yeares there was neither civility nor honesty in their actions so it is likely though somewhat they might bring with them they took up what they wanted in Manners and Government from the French with whom they have kept so great an agreement since for which and a Province unjustly wrung from that Nation they gave nothing in returne but depopulations and blood and had they introduced here the rites of Tenures they had introduced but what themselves tooke up either took up or brought with them is the same and what was common as has been observed amongst all the victorious Germane Nations The onely way to make it plaine in what manner by what right the Saxons possessed their Lands will be to search into those times into the Records of them The most knowing in these things deny not fees servitude of fees somewhere is denyed p Gloss verb. frud I will begin with the Alodium as likely to be freest which is said to be Foleland made the same with our Socage which yet originally was servile and more servile then any militarie Tenure will be found to be q V.C. Dom. Wat. Gloss in Par. D. Cowel v●r Socage Lit. S. 119. D. Lpel Dominici Colani The Aloaries are said to be the better sort of those who held by socage they are compared to the Frankleudes amongst the French of the Noblesse Nobiles militiam exarbitrio tractantes for service when the fit took them r D●n Sptl. verbo Alod called out at no mans command in no foedall servitude yet who acknowledged a Lord sayes this place Out of that of the Doomsday Tit. Sudsex Comes de ow. Laneswice Godwin bolds of him and of him seven Aloaries who swore fealty and paid some Cens or small Rent This must seem a strange kinde of military Gentry owing little more then to God and the Sun amongst a people descended of those from whom Feudes are descended whose fortunes were built in the field and must ever have one hand upon the Sword The Franklends were not so free as it appears by this Glossary free they were from Tribute but not from the Wars ſ id verb. Leudes The word leudes has severall meanings Generally by it the leudes the Subjects of all sorts are intended according to that It was agreed betwixt Childebert and Gruntchranne that none of them inveagle away anothers leudes t Greg. Tur. l. 6. specially it is taken for the Vassalls praediall servile feudall and noble more restrainedly for the vassalls royall after called Barons which must be the Frankleudes I will relate and onely relate what I have found elsewhere amongst us of our Alodiary Doomesday is cited in these words And in Sussex Cetingley * Tit. of Honour Cheding for Chittingley a Towne in Pevensie Rape Almar held of Ring Edward as Alode sicut Alodium Upon which the Aloarie is said to possesse his Land by Clientelar right u D. Seld. in Ead. 202. v. ibid. 217. the Titles of Honour citing this and the place in Sussex before say Alodium was not Land whereof no Tenure was it might be such a Tenure as was free from any chargeable service and again as free as Kent is thought to bee the same Doomesday speaks thus These forfeitures has the King over all the Alodiaries of the County of Kent and their men vassalls And when thé Alodiary dies the King shall have reliefe therefore of his land except the land of holy Trinity c. and of their lands be has reliefe who have soc and sac Not to fall upon a discourse of the feudall Souldier who fights ever for his owne and the Mercenary though nature binds us to defend our Country I know not why any tye in a reasonable equality to our strength and means to knit this knot faster can bee called servitude and some more willingly obey a condition of their owne acceping then a command I will show below there were speciall obligations of this kind upon those who were certainly beneath the Alodiary The Saxons had their Mannors which they called Beries sometimes with lesser Mannors or Berewics as Hamlets of the greater holding of them which had many plough-lands many kinds of services many Free-men So●mannes many of those who did the Lords worke about the house from * D. Spel. gloss bord the house in Saxon called bordarii or from bord which in Saxon is a Table a word u● sed for it still many villains belonging to them * v. Ps 68 I know not why these Borders should be thought Norman in their name against the Etymologie If that place in the Doomsday be considered Tit. Norf. Nereburgh a Towne now Nerborough held Aelwie in the time of King Edward the Gonfessor now R. c. Then foure and twenty villeines c. Then and after ten bordarii borders c. Tit. Hereford And other twelve borders working one day in the weeke The Demeanes were called the Inland the Tenancy and what was allowed the Colony or Husbandmen the Vtland according to the testament of Bithric u D. Lamb. Itin. Gant I bequeath sayes he to Walfege that Inland as M. Lambard the demeanes and to Elfey the outland as he the Tenancy The Ecclesiasticall Lawes of King Edgar command Tythes to be paid both out of the Thenes Inland and the Neatland the Tenants land e Ll. E●g Eccles Concil 444. Thus must Ingulphus be intended in the deeds of Withlaf and Beored Mercian Kings twice are these words Also I confirme to the fore-said Monastery of the gift

the feudal honorary ninrges Ðegne Kings Thane who held of the K. in chief that his land only was honorary Taineland that he held by service of personal attendance by service of an Office or military attendance he maks the ðeoden Medmera Ðegne or under Thane to be feudal too * Which sein Concil Sax. 406. Now in print and the same with a Vavassour out of the M S. of Athelstanes laws sometimes at the Library of St. James he cites Si Ceorlman prove batur ut habeat 5. hidos terrae ad ut Waram which should be utfaram expeditionem regis c. That is says he held of the King by knight service w Tit. Hon. 2. edit 622 624. In Doomesday tit Bockingham scire is Burchard Teigue 1. Baro Regis Edwardi That is Baron of King Edward Amongst the witnesses to the priviledge of King Aeiheldred granted to the Monastery of Christ Church in Ganterbury is Aethelmere the kings Discthene translated dapifer Leafric his braegel thene Master of the Wardrobe Siward the kings thene a t raed of his Councel x Concil 500 501. which certainly were Thanes or Barons by the service of these places We read of those in the Saxon Cronologie who served not n ordinary lived not continually at Court * v Sax. Cron. 534 543. or neer the kings person like those in the Confessors Chatters here yet are called the Kings Thenes The words are these And in those three yeers many of the kings most choice Thenes dyed amongst which were Suithulfe Bishop of Rochester and Ceolmund Alderman or Earle in Kent and Beorhtulf Alderman amongst the West-Saxons and Wulfred Alderman in Hamptonshire and Ealheard Bishop at Dorchester and Eadulf the kings Thane amongst the South Saxons and Beornwulf the Gerefe in Winchester and Ecgulf the kings Master of the Horse his horse Thene and many other of the most noble y Cronolog Sax. 545. Which I shall make yet more cleer when I come to speak of Hereot out of the Laws of King Cnut This Law is meant of the lesse or under Thane If any Thegne which in his bockland opposite to so cland which passed without writing hath a Church and a burial place c z Ll Edg. 2 to make it more full as before is said that the policie of these Germane Nations tended much to war the very ceorl●● or plowman could not under such a penalty keepe at home when an Army was to march a L● Ina. c. 52. and whosoever withdrew himself from the march forfeited all he had b Concil ● Ae●ham c. 24. if the king were in the expedition The Doomesday says In the City of Hereford The Burger serving with his horse when he dies The King shall have his horse and armes As there Wallingford in the time of King Edward the confessor conteined 276 hages or houses rendring ten pounds of rent or gable and who remained there performed the kings service with their horses or by water We finde in the Saxons times in a gift of lands reservations of services and creation of Tenures king Aelfred at peace with Guthrun the Dane whom he wins over to the Faith gives him the Provinces of the cast Angles and Northumberland to be possessed by Foedal and hereditary right c Concil Sax. 379. Asser men vens John Pik who writ in the reign of king Henry the first says king Aelfred gave these Provinces c. Vnder fealty of the King that he might preserve that by hereditary right which he had invaded by robbery Malmesbury relates this in the same words d de gest reg l. 2. c. 4. in the Chronology we finde Here Edmund the King wasted all Cumberland and gave it to King Malcolne king of the Scots on condition that by Sea and Land he should assist him in his wars ꝧ he ƿaere his mid ƿyrhta that he were his fellow in action e Cronal S●x in an 945. of the first of which Harding has To whom the King gave then all Eastenglond To hold of him the Lond. Malmesbury reports in the life of King Edgar That there came to his Court Kunadie King of Scots Maleolne king of Cumberland the arch Pirate Admiral Maccuf all the kings of the Welsh Dusual Gifreth Huual Hoel Dha Jacob and Judethil whom Edgar bound to himself in a perpetual oath f l. 2. 4. c. 8. v. tit Hon. which may be called Fealty Where the same Harding recites the beneficiary Clyents or Princes who had sworne Fealty sayes Mr. * Mare claus 280. Selden to king Cnut he addes So did the Kings of Wales of high Parage And all the North-West Ocean For their Kingdomes and their Lands than There is an example of the creation of knight service here before the Normans in the lives of the Abbots of St. Albans Then sayes the Monk in the time of Abbot Leofstane and Edward the Confessor The Chilterne a small country neer the Monastery was full of Woods in which lodged divers beasts wolves not then it seems extinct bores wild bulls and deere and which were more mischievous thieves out lawes banished men and fugitives Abbot Leofstane to the profit of this Monastery granted to a certain stout knight Thurnoth and to his two comerades Waldef and Thurman the Manner of Flamsted on condition that the said knight Thurnoth with his comerades forenamed and their heirs should preserve the west parts abounding most with thievs as well from noysome beasts as theeves and answer such losse as by their neglect should happen and if common war should happen with all their diligence and power defend the Church of St. Albans which they saith he and their heirs faithfully performed till king William conquered England then that Manor was taken from them because they would not endure the Norman yoke but a certain Noble man Roger of Thony to whom that Manor fell stoutly performed that service g Vit. Ab. 46 In Doomesday is said That the Church of holy Mary of Worcester has the hundred called Oswalds hawe in which lye 300 hides of which the Bishop of that Church from the constitution of antient times has redditiones socharum regis servitium suum Which is made Socage rents and knight service 3. Rep. Praef. In an old Charter of the age of Doomesday book are these words To Edwin and all the Teigues and Drenges and to all the men of St. Cuthbert of Goldinghamshire greeting the same as Sir Hen. Spelman with Barons knights and Freeholders In Domesd tit Cestresc Of this Manour another Land fifteen men whom they called Drenches for fifteen Manors held and tit eod in Villa Wallingtone To that Manor belonged thirty four Drenches and so many Maenors they had It is cleere so the Glossary that these Drenches were a kinde of vassals but not ignoble who held by knight service one of which Drenches he conceives Edwin in Norfolk whose posterity was after called Shireburn to have been who proving

are to doe even law and execution of right d 20 E. 3. c. 1. The supreme of these Benches after this alteration dealt in pleas criminall called placita Coronae in the books e 4 Inst 71 Stamp Pleas of the crown examined and corrected errors misdemeanors and offences against the peace granted the Habeas corpus and upon return of the cause relieved prisoners held pleas by Bill for debt detinue covenant promise of all personall actions of ejectione firmae and the like against any in the custody of the Marshall or any Officer of the Court who may implead others in those actions of all trespasses with force and armes of Repleviu● Quare im●●dit c. of Assise of Novel disseisin These Justices are the soveraign Justices of Oyer and Terminer of Gaole delivery and conservators of the peace c f 4 Inst c. 7. This Bench may grant prohibitions to all other Courts to keep them in their bounds The Chancery as before supplies the wants and relieves against the rigour of the Law in its extraordinary ju●isdiction The Ordinary held pleas of s●ire facias to repeale the Kings Letters patents of Petitions monstrance of right Traverses of offices of partitions there of scire fac upon recognizances there Writs of Audita querela and scire fac ' in the nature of it to avoid executions there endowment might be there by the Writ de dote assignands upon offices found execution upon the Statute staple or recognisance in nature of it upon the 23 of Hen. the 8. Personal actions might be brought there by or against an Officer or minister of the Court it is the officina justitiae hence all Writs issue it grants the Habeas Corpus out of Term g Ibid. c. 8. In the Court of Common pleas or commune bench all real actions are determined and all common pleas mixt and personal Besides the Stationary Courts at Westminster there were the Justices in Eyre the sitinerant Justices Charles the bald in the yeere 853. divided France into twelve parts and over every of the parts placed men famous for Religion and Law who yeerly travelling their own Divisions took cognisance of wrongs done betwixt party and party and of the publique offences according to justice By which pattern King Hen. the 2. of England in the yeer 1176. divided this Kingdom into six parts over every of which he appointed three Justices yeerly to goe their Circuits h Hoved. 548. M. VVestm l. 2.39 though I know not why this institution is made more ancient by others These were followed by the Justices of Assize since in being by whom they are swallowed up their circuits are twice the yeere and at certaine times having the power of Gaol-delivery added with the authority of the Justices of Nisi prius annexed also the inquiry and determinations of many things else given by latter Statutes and by another Commission of Oyer and terminer the power to deale with Treasons Murders Felonies and all misdemeanours whatsoever they have one other Commission of the peace in the Counties of their circuits by vertue of all which together they sit More perhaps cannot be devised for the ease of the people Thus is justice brought to their own dores the same thing with a fixed standing Court and as it may chance more safe The lesse the Judge is known in the Countrey the lesse is the danger of siding or biassing I speak not this as if I had more feares then other men or were for any of the new jealousies these are the feares of severall of our Parliaments There is aprohibition in two Statutes That no man of the Law shall be from henceforth Justice of Assises or of the common deliverance of Gaoles in his own Countrey i 8 R. 2. c. 2. 13 H. 4. c. 2. and a third Statute of confirmation is more full it sayes That whereas it is enacted that no man learned in the Lawes of this Realm should c. be Justice of Assise in the Country where he dwelleth since divers men learned in the Lawes c. have by their means and policy and for their own commodity c. obtained to be Justices of Assises in the Countries and Counties where they were born or were inhabiting whereby some jealousies of their affection and favour to their kinsmen alliance and friends c. hath been conceived and had c. enacted c. that no Justice c. use nor exercise c. as before k 33 H. 8. c. 24. Upon such like reason is there another Statute enacting to this purpose that no Lord or other in the Countrey sit upon the Bench with the Justices of Assise l 10 R. 2. And as nothing humane I might say divine too fathered somewhere as high as upon Lycurgus his Apollo or the whispers of a Numa and his Eugeria where Gods might be fancied to descend for the production and caelestiall wisdom to flow into it never so excellently contrived can please all men so perhaps whatsoever production shall or can be it may have if not its mischiefes and inconveniences yet some failings incident to the imperfections of man in it selfe and by corruptions from without their grace and flourish may be but short nothing is so incertain in the taking as new Lawes much must be ventured much committed to fortune and if according to the Saxon form which is shewn is not yet extinguishd and what is lost in jurisdiction or rather in use in the lower Courts is supplyed as is shewn too by a way if not better yet equal to it standing Courts were every where and what is more daily open at the Countreymans doore This would not perhaps so much ease the honest just man ever upon the defensive who ever sues but for his peace and the quiet preservation of his own right as it would multiply vexatious prosecutions some the greater number and the worst men composed of malice and contention would be incouraged by it to molest others the trouble and expence being so little and the way to imbroyle so ready and neere there would be nothing but complaints the Law and its remedies would quickly he abused they would be as great a plague as some men who onely say so would have them imagined to be actions would fly thick and swarm so fast one yeere would bring forth Volumes more swelling then all the Annals now read and if every man might be the patron of his own Cause often his in justice nothing would be wanting to make the confusion periect all decency and respect would be forgotten for which nothing would be had but prodigious noise and rude tumults Farther those who now are kept off by the conscientiousnesse of the knowing Lawyer who has made a discovery into the injustice of the cause and oftentimes restreines the heady client to run on would presently be at the shock fall into the danger of a trial which being blinded with their own fury their malice onely

intent to hurt the adversary they see not before how great it is and however are too weak of themselves were the right of their side and most plain to manage it to the best advantage It may seem strange too why the ordinary course of our Circuits should not now be sufficient why we should need quicker returns of this sun of Justice unlesse we think our selves the worst of all men and our age the most corrupt every day falling further from the piety of our forefathers and more prone to oppresse and devoure one another were there a recession from the known Law after a few of the first judgements not to go on far it may be feared there would be no small discord and contrarieties in the determinations where the Courts should be so numerous not derived from one fountaine nor judging by one rule that would be Law and right in one County which would be wrong in another and which is the greatest curse in the Law that which should be most certain would be without any certainty at all To proceed instead of Conservators of the peace at the common Law now antiquated there are Justices of peace of larger power then the Irenarchae of old appointed to take care not so much of the publique discipline and correction of manners as for the peace and security of the highwaies m Cod. Thead in rub de Irenarch l. 1. Their name shews why they were instituted They are in their sessions quarterly to heare and determine all Felonies breaches of the peace contempts and trespasses They are to suppresse riots and tumults to restore possessions forceably taken away to examine felons apprehended and brought before them To provide according to the Statutes for impotent people and maimed souldiers to punish rogues beggers forestallers and ingrossers c. to commit or bind over offenders to the Sessions or Gaole to take recognizances for the peace c. such a form saies the Lord Coke of subordinate government for tranquillity and quiet c. as no part of the Christian world hath the like if the same be duly executed n 4 Inst 170. suites There are other Coures for administration of justice of narrower jurisdiction and confined in smaller limits of some of which I have spoken before yet able to put an end so small differences and ordinary trespasses not to be prevented sometimes amongst neighbours if men would be so contented Who commonly themselves make the Courts below thin and are the causes of the troubles they seem to detest let the quarrel be as trivial as is imaginable for an Asses shadow yet as in some Countries the custome is to threaten they wil have a London proces for him the poorest clownes wil trudge to London on foot from the farthest parts of the North or West more miserably then Carriers horses and undoe themselves which is no hard matter with one journey rather then not discharge their full spight who if they return not back as merrily as they set out they may thank themselves But because delay is charged up on the Courts not onely as an heynous crime but such as must by all means be born with them inseparably inherent to them something I wil speak of that I wil make it evident that delay is more odious to the Law then to those who complaine of it and that it bred from nothing else but the corruption without We finde in the Saxon lawes not onely one which fines the Shieriffe for doubtlesse of him is the word gtrtfan there meant o V. Ll. edu sen c. 5.11 who sentences not according to right after the testimony of witnesses p ibid. Ll. c 5. but also another commanding the Shieriffe to keep his Court to have his Assembly which now we call the County Court as the words and institution of King Edward the elder every moneth And that every man may have justice and every plea an end at the day when it comes whoso omitteth this still as the Law he shall make amends c. q ibid. c. 11 like that of the twelve Tables SOL OCCASVS SVPREMA TEMPESTAS ESTO We need not wonder that suits could be so prepared or rather that so little could be in them that they could be dispatched in a day if the plainnesse of the age before noted be considered when the folcland the possession of the rural man passed without writing and the bocland not to be aliened if there were such a condition in the writing r Ll. Aelfr c. 37. in a few words No man might change any thing but in the presence of the gtrtfan or Baily or of the Masse Prie●t or of the Hordre or of the Lord or the soile c ſ Ll. Aethelst c. 10. and no man might buy beyond twenty pence but within a Town before the Portgreve other tenth man or with the Shieriffes witnesse in the Folcmote t ibid. c. 12 To look downward Magna Charta has it We sell no man nor deny or delay no man justice and right u c. 29. It is a maxime in Law Lex semper dilationes exhorret The Law alwaies as Markam eschewes delaies w 22 H 6.40 a.v. w. 1. c. 40 44 45. w. 2. c. 25. sta Glou. c. 2. The Barons of the Exchequer are commanded to doe right to all men without delaie x 20 E. 3. c. 2.28 E. 1. c. 10. they are sworn to it y 4 Jnst 109. The common Law requires often that full and speedy justice according to the words of those w●its be done to the parties z Na. Br. 23.182 4 Just 67. all writs of Praecipe quod reddat are That justly and without delay he render c. all Judiciall Writs are without delay c. When any Court makes delayes and will not give judgement the Writ de procedendo ad judicium lies The words of which are Because the rendring of judgement of the plea which is before you c. hath taken long delayes c. We command you that you proceed to give judgement thereupon with that speed which is according to Law and Custome When execution is denyed the Writ of execution of judgement lyes by which the Justices are commanded to canse execution to be done without delay of the judgement lately given a Na. Br. 20. v. 2. J●s 270 271. There was a Court raised by Statute for redresse of delayes in the great Courts where yet the delaies are not imputed to any foul play of the Ministers of justice The words are Because diverse mischiefes have happened of that that c. the judgements have been delayed sometimes by difficulty sometimes by diverse opinion of the Judges and sometimes for some other cause it is assented c. a Prelate two Earles and two Barons henceforth at every Parliament shall be chosen which shall have Commission and power of the King to beare c. the complaints of those that will complain to

them of such delaies c. and to cause the same Justices to come before them c to hear the cause and reasons of such delayes which cause and reasons so heard by good advise of themselves the Chancellour Treasu●er the Justices of the one Bench and other c. shall proceed and make a good judgement c. if the difficulty were so great to require it they were to bring the tenor to the next Parliament Where a finall according as this Statute was to be taken according to which the Judges were commanded to proceed to give judgement without delay b 14 E. 3. c. 5. Causes have used to be adjourned out the Courts and to be determined by an assembly of all the Judges called since the Exchequer chamber as in Chudleighs case c V. 1. warranted saies the Lord Coke by the common Law and ancient presidents before this Statute The frequent use of which so he has been the cause why the Court founded upon that Statute of Edw. the 3. hath been rarely put in ure d 4 Just 68. There is a Court erected by Parliament for errours in the Kings Bench as it is called by the Statute e 27 El. 8 3● El. c. 1. and for those who love no errours another Statute commands That judgement be given after the demurer is joyned and entred notwithstanding any defect in proces or pleading other then such as the party demurring shall particularly expresse f 27 El. c. 5 If things were truly looked into we should finde delayes and other indirect courses to proceed from the artifice and unjust subtilties of suitors of those who prosecute bad causes to infest and wrong other men and from the cheating Mountebanks a skum of litigious men of no rank nor quality nor of any study in the Law who undertake them Impostors more doted on then those of the profession famous for their integrity and industry really and honestly understanding Impostors rather to be listed under the notion of Incendiaries and common Baretors then of any others catching at any thing refused by the honest learned practiser venturing to soder the most broken title by sleights and false daubings to the ruine at last of those who imploy them though not without some mischiefe and infinite vexation of the adversary and the injust Client having consumed himselfe much is encouraged not to flinshe for what follows is blown up with fresh hopes tampered with new shifts and arts of reviving till he has given himselfe wholly up till he is wilful and at last like a Gamster swearing over his last stake he loves every tergiversation and struggles with all his power and cunning to avoid the disgrace and losse of being overthrown when he must see while there is any justice left it cannot be avoided but when this blow hits him though himselfe was the worker and the motion began and continued from his own hand then he implores the faith of God and man Hence is a never dying quarrel to the Lawes the justly deserved calamity is imputed to nothing else If deceits and wrong may not be secure and happy the Lawes shal be cursed and blasphemed like Tacitus his Gods rather carefull of any thing else then to provide as he prophanely for our safety But in these exceptions to the Lawes the kindnesse would be wonderfull if the professours should goe free as it might we meet with an old censure which at the first fight seems something Councellours which includes the professors of all Laws alike it is this That the Lawyers of the best quality and fame one and another all of them seldome refuse any man and since their cannot be a right of both parties oftentimes defend the wrong which in good conscience they ought not nor cannot wish should prevaile To this I reply every right is not clearly seen nor every wrong suddenly known * 4 Reppreface of late some Statutes are long and full of perplexities ill penned here are late and new inventions in assurances which the eye of the Law before never beheld Many unskillful Empericks are employed about wills and Conveyances where if the words of their general president or receipt if they have any will fit the sense of the party who conveys 't is well and lucky otherwise the patches of their own prove dangerous And some ambiguities in clauses and expressions may happen which cannot easily be tryed by any law before nor can any Councellour very often assure himselfe he may give his opinion conjecturally and probably and that is all accidents alone the act of God may make things litigious which it is not in the power of the most wise to prevent The lawyer himself too may not stranges a a man make his mistakes something may slip from him imperfect which may trouble others to judge Suarez speake● excellently of this For whereas says he such is humane condition that a man can scarcely explicate his sense in so perspicuous words but that often ambiguities happen especially in laws of men which are briefly and generally delivered therefore in applying them to various cases in particular many time doubts arise to take away which the Legislator either not in being or at hand to declare his intent The opinion of wise men and interpretation doctrinal is necessary out of which necessity comes the skill of the Civill Law weighty because in every Art the judgement of the skillful of that Art is of great moment and inducing at least probability that is all for if all were of one minde they would make a moral certainty in these things g l. 6. deleg c. 1. The Statute raising the Court for delays before-mentioned makes it plain there may be not onely difficulties but diversities of opinions in the Judges too h 14. E. 3. c. 5. there may be postnate cases which could not be foreseen in the laws where all remedies could not be comprehended nor are all things which follow in confimili casu The Statute of exemplifications begins For the avoiding of all such doubts questeons and ambiguities as have risen and been moved c. in and upon the 3 and 4 of Edward the 6. i 15 E. v. 32 H. 8 c. 26. The declarative Statutes are commonly made to take away doubts and incertainties before Nor is this any wonder that the Councellor should guesse at the case when in the extraordinaries in things strange and undiscovered the Judges themselves sometimes are divided Of the case of the Shellies and the Unckle the Nephew in Queen Elizabeth her time the Lord Cooke reports thus After the said case was openly and at large argued by the Councel of either party in the Queens Bench three days the Queen hearing of it for such was the rarenesse and difficulty so he of the case being of importance that it was generally known and out of her gracious disposition to prevent long tedious and chargeabl suits betwixt parties so neer of blood which would be

the undoing of both of them Gentlemen of a good and ancient family commanded the Lord Chancellour to assemble all the Justices of England before him upon conference to give their resolutions Which they did one Justice disagreeing Chudleight case in the same report is said to be so difficult and of so great consequence it was thought necessary that all the Justices of England openly in the Exchequer Chamber upon solemn Arguments should show their opinions in it where the chief Baron and Justice Walmesly are dissenters as also Justice Gawdy in part Till the first of king James there were but four Judges of either Bench and many times as the same Lord Cook k 4. Rep. P●af in cases of great difficulty the Judges being equally divided in opinion the matter depended long undecided for prevention of which this King added a Judge to either Bench. Retractations may be allowed in law as well as in divinity a man may differ with himselfe believe and apprehend truely and ingenuously and with Judgement this way or that way and after when he shall hear the reasons of others and the same case debated solemnly by the most grave most wise and most reverend of the profession not onely startle and doubt but but believe and like the contrary of what he liked before truly and ingenuously still without any blemish of dishonesty or falsenesse to be stuck upon him for it truth is said to be the adaequation of the speech with the species and if here any mi●take be as there may the falsenesse is in the notions not in the man who speaks and think● he speaks truth I know no reason where there is no leading judgement to sway why the professors of the lawes should certainly be supposed to know the right and on which side it is as if infallibility were so ready or likely to be where as the Mirrour joyns them There is no law nor usage and where there are no presidents to direct Cases not being included in any words of law may be compared with the reasons of other cases according to similitude fancied and opinion so produced is but an incertain and weak knowledge thus or thus which yet may well be otherwise every man knows how far the Topic argumentation comes short of the necessary further as Sir John Davies When is right or wrong manifested upon the comencement of a suit before it is known what can be alledged and proved by either party The Councellor when he is first reteined hears onely one part of the matter and that also from his Client who ever puts his case with the best advantage for himselfe after pleading of the parties when they are at issue when they have examined witnesses in course of equity or are discended to a tryal in course of law after publication and hearing in the one cause and full evidence delivered in the other then perhaps may the Councel of either side dicern the rigt from the wrong and not before But then are the causes come to their catastrophe and the Councellours act their last part l Praef. ded f. 6 7. Thus as there are diversities of opinions amongst the professours of the lawes we see there are invincible reasons why sometimes there must be such diversities and I would gladly know where there is any general agreement of mindes A great man of the Clergy but no great lover of the laws or lawyers notes one Judge very hastily determining against others do not Councels often do the same the later quite thwarting those which went before and what he grants are not Divines divided against Divines not only in things of Ceremonie but of Faith If we look upon other Arts and Sciences we might think all things made from Heraclitus his principles that strife was the father what dissonance of opinions what knots never to be untyed sayes the incomparable Petrarch upon the discourse of discord are there amongst the Philosophers Who can number the varieties of their Sects what conflicts amongst Rhetoricians what discords of all Arts what clamours amongst the Lawyers those of the Civil Imperial lawes how well they agree the immortality of causes proves Sick men can witnesse what concord there is amongst Physicians what unlikenesse of mindes is there about things sacred and Religion where the differences are oftner tryed in the field then in the Schools m Petr. de remed utr fort 429. l. 2. By no other law is it said is unlawful maintenance Champerty or buying Titles so severely punished as by ours By what other law askes the most learned Knight is the Plaintiffe for false clamours or injust vexation or the Defendant for pleading a false Plea amerced the amercements in Magna Charta of which hereafter were instituted to deter men from injust suits and defences n 2 Inst 28 the French impost of 100 sous upon the Processe is thought injust yet sayes the Republique never was any so necessary in this Realm where there are more suits then in the rest of Europe which have sprouted chiefly from the time of Charles the sixth when by Edict the ancient custome to condemn those in costs who had lost the cause was cassed o Bod. Rep. 889. By the Saxon lawes he that denyed another his right either in bocland or folcland before a Judge without any right forfeited to the king 30s so the next time the third time the kings o●er hyrnysse 120. s. for his contempt p Ll. Ina c. 8. Ll. Edu sen c. 2. Ll. Cnuti c. 7. such lawes as these which might fright troublesome spirits are of high necessity yet I think where mens own Consciences restrein them not the punishment of laws would not prevaile with all men Nor can we expect any continual peace from vexatious suits nor any security from delayes deceits in them till a Christian generous honesty diffuse it self every where and there be a general perfection of charity and love in every man which is not easily to be hoped for France may be famous for its sprightlinesse Spain for its gravity Germany for the arts what clime is renowned for any such honesty Unles the new Atlantis can be found again and its Idea of a Commonwealth the Magick Region of the Moon throughly discovered and it lye hid there Or * Euphorn Barclaie may be believed of his Lusinia so unlike the whole world beside Of which that it breeds men worthy the genius of the place and of their own fortune for so he says if it be the Country some think he means he may be credited for the rest of the innocency piety of the people it is more then I can say of my own knowledge and I would lead no mans Faith where things are not plain and certain Other causes of multiplicity of suits in these latter ages are observed by the Lord Cooke to be first peace noted before * c. 2. In the reigns of the kings Edward the 3. Richard the 2

admirable not at all the more unhappy for it I know no reason why the same words should be thought unhandsome in our law and elegant and beautiful in another and as laws which is noted if all the hast imaginable were made for a change could not in our daies arrive at that fulnesse and excellency to comprehend and redresse thousands of those wrongs which now we finde remedies for The decemviri imployed about the Tables thought they could have comprised all accidents they fell short in their account all the bookes in the world saies Bodin cannot comprehend every case which may happen for after all the additions possible it wil be found that perfection of lawes must be the labour of ages and that experience is the best and onely happy Lawgiver So would there be the same length of time required for the new termes Time is followed at the heeles by corruption and ere our descendents shall make up what we shall leave imperfect if our change be not disliked and changed by them they that shall invent the last terms perhaps without some key or other wil not be able to understand the first The length and change of time will make the next as obscure as these if we look upon our own language and not so far back as Robert of Gloucester and others of the most ancient English writers if Sir Geofry Chaucer and John of Lidgate be compared who calls him master and betwixt whom there are not many yeeres it may be seen how quickly it altered as since the raigne of King Henry the eight we know it has sufficiently changed again It was the observation of the illustrious Viscount that books writ in modern Tongues could not be long lived he expresses it in the term for bankrupts cito decocturos they would quickly break which was the reason why he caused that most excellent piece his Augmentation of Sciences to be translated into Latine c. So that I cannot yet finde why the antiquity of our termes should be a cause of change It is ridiculous to think otherwise The Lawyer must speak the words of the Law nor can the proces and forms of the bar be expressed in neat and fine language Cicero l. 1. de Orat. Orat. pro Caetin Gell. l. 20. c. 10. de voc ab ex jure manū consertum Cicero himselfe is observed in matters of Law to speak like a Lawyer ordinarily using the terms Ennius does the same in those Pellitur e medio sapientia vi geritur res Spernitur orator bonus horridus miles amatur c. Nou ex jure manum consertum sed mage ferro Rem repetunt regnumque petunt vadunt solida vi * l. 16. c. 10. And in this Proletarius publicitus scutoque feroque c. And as no other Law can gain any thing of ours in reason as little can they gain of us in phrase if the stile be compared with the purity of the speech they are written in the stile of the Imperial laws with the purer Latin This I wil illustrate only with the designe to make it cleare that this homelinesse of ancient habit is not a rude fashion taken up alone by our Law I wil observe somewhat of the Civil Law out of the professors of it that we may see our Lawes onely have not been censured are not onely subject to censure Perinus in Justinians life runnes in a long invective against Tribonian as he is called the architect of the Pandects and of the whole Law whom out of Suidas he calls wicked impious a contemner of Religion far from Christianity a deceiver and fraudulent perswading the Emperour that he should be assumed like Enoch corrupt basely covetous so that the law lost much in the infamy of so wicked and pestilent an author Where he speaks of the Laws he saies Tribonian and his fellowes were like cruell Chiriergions who cut to the quicke and which he cites Budaeus for That they have left the Pandects rather curtailed then compendious fearing out of superstition dregs and things obsolete they have heaped up matter out of the drier volumes and drawn that which wil not quench any mans thirst So that as he goes on in the framing the Pandects you would rather think they slept then that they digested any thing rightly and compendiously Justinian in the Proem to his Institutions supposes an huge confusion before call● this a desperate worke and walking in the middest of the deep The body of it then was confused of infinite extent sayes the Glosse The Code sayes Sis Th. Ridlye a Civilian is a barbarous Thracian phrase latinised such as never any mean Latinist spake for themethod it is rude unskilfull where it departeth from the Digests yet the knowledge of it is more expedient then the knowledge of the Digests because it determineth neteers in daily use of life f View of the Civil and Eccles law The Digest is said to differ but little from the best Romane speech but what it has in words it wants in substance as the same Knight the learning of it stands in discussing subtile questions and enumeration of opinions in which there is more wit then profit Againe this Digest or Pandect as an old Glosse strangely a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 totum * c. Pandectarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 doctrina which is said to be drawn out of 150000. or as others 300000. verses of the old Law indigested and abolished needed exposition and amendment The Compilers were not so quicksighted but that sundry antinomies as this Knight and Budaeus or contrary laws past them they were too subtily Writ and needed explaining besides in the Digest every case falling out in common use of life was not decided for it is enough that Lawes look upon that which is likely most often to happen nor as our Knight was it possible every moment new matter fals out for which former Lawes made no provision which was the reason why the Code was set forth and why the Athenticks or Novelles followed Being the Princes resolution of doubts confused●y put out as the Civilians abroad confesse g V. Lex Ju. Civ ve bo Novellae The Feudes as the same knight were drawn partly out of the Civil Law partly out of the Customes of Millain but without either form or order h Ib. View 69. before the Cornelian Law of Jurisdiction of the Praetors they were wont led away wich covetousnesse or ambition out of favour or spight variously to give judgement Changing and altering the laws they had set forth in writing The Cornelian law commanded i Dio. Cuss l. 36. 1 That in the entry to their office They should publish what law they would use and observe it I will not say there is any such incertainty now yet where there are so many Doctors interpreting the Text so many Comments such multituddes again interpreting them without a miracle there cannot but be

great distraction in opinions Hence it is that Gentilis and Alciat require that the authorities and cases of the Doctors be weighed not numbred k Gentil l. 3. Epist Alciat l. 4. perarerg c. 17. Which is otherwise in our Law where the judgement of any man whatsoever is not of authority nor is any thing binding but the determination of Courts and the rule of judgements before Lawes are not causes of strife but the variety of senses which is put upon them we are told of a constitution of Pope Nicholas the third upon the rule of that Monster Francis of Assise in the argument ambiguous and doubtful enough yet did it never trouble the Order all Glossers and Commentators being forbidden to meddle with it l Concil Trid. 660. He that puts out the Imperial institutions sayes he has added the cases or Themes as they call them of Cornelius Vibulanus Having rejected the old as barbarous and uselesse and that he has cut off part of those Notes taken out of the Commentaries of the Doctors which are called small accessions because so he very many of them were partly wide of the marke nothing to the purpose partly absurd andridiculous Till of late there was never any glosse upon our Littleton and now that which is is made up out of the resolutions and judgements of Courts not as if Littleton needed any confirmation One of whose cases was acknowledged for Authentick by four Judge in the time of king James with this expression That they owed so great reverence to Littleton they would not suffer his case to be disputed or questioned m Mich. 21 Jac. B. C. The Civil Law hath its circumstances and exceptions the anomale before and in the contestation of the suit to the Fact of the intention of deceit fear c. temporary perpetual It s formulae or solemn forms by which let the matter of Fact be never so orderly related if either no conclusion or an unfit one be collected from it the whole libell falls Sometimes sayes a French Civilian of the Parliament of Paris a Proces is determined by contrary arrests differing from others preceding then which is pittiful this clause is added to the Text of the arrest Without drawing it to consequence or the motive I believe not alwayes is registred France sayes this Bodin again bas more laws and Customes more Proces and suits then the rest of Europe beside and more have been prosecuted in the last six score yeeres then in a thousand before which have througed in more and more as he goes on since that Charles the seventh and his successours have begun to people the realm with lawes made after the mode of Justinian with a long train of reasons against the forme of the antient Ordinances of the kings and sage Legislators he addes Where laws are few and simple rather commanding then intreating and reasoning Commonwealths have flourished to a wonder under them Whereas others with their Godes and Pandects in a few yeers have been destroyed or troubled with seditions or the mischiefs of Proces and wranglings immortal n Repul l. 1927 l 6. By the multitude of Authors and Doctors as the illustrious Viscount the law is torn in pieces the Judge astonished and the proceedings everlasting o Angm. Scient 691 We may see as this French man again enough of these suits aged one hundred yeers as that of the Earldome of Rais so well managed that the parties who made the entrance into it are all dead and the Proces yet alive Nor are the terms of the ancient laws of the Tables to us now who know not the propriety of the first Latin much more winning more graceful then ours Where they are certainly antient they will seeme as hard to the first sight as any and their sense as strange after as the sound of others As that Senates should be used for revolters reconciled reunited Fortes for good men never revolted p Tab. c. 49 Pauperies in the law Siquadrupes pauperiem fecerit c. Should signifie hurt or damage q c. 15. Proletarius a word which a Lawyer in Gellius takes to be of Grammer learning and when he was shown it in the tables is content to say he had not learned the Law of the Faunas and Aborigines a poor Roman whose rate in the publique valuation of good was 1500 Asses or one that did nothing for the publick but get children r Gel. l. 16. c. 10. Tab c. 44. A famous Grammarian being asked what those words out of the ancient Actions in jure manum conserunt sayes the tables ex jure manum consertum mean sayes he taught Grammer A way of suing they signifie which he had never heard of Å¿ v. Gell. L. xx c. 10. Godwin antiquit l. 3. c. 21. That retanda flumina in an old Edict should be rivers to be cleered of trees growing in the Channel or upon the banks and hanging over from retae such trees t Gell. 11. c. 17. This of the tables will appeare as strange as any thing QVI. SE. SI ERYT TEST ARIER LIBERI PENS VE FVERIT NI TESTIMONIVM FARIATVR IMARN BYS. INTE STABILIS QVE ESTO u Idd. 15. c. 13. A. Gellius in his ch where he asks the question upon manum consertum speaks thus of the learning of the laws and the termes I have thought fit to insert into my Commentaries whatsover I have learnd from the Lawyers and their bookes because he that lives in the midst of things and men ought not to be ignorant of the most famous words of civil actions Amongst the later terms which are proper and necessary for the sense they serve many of them would trouble much our over curious Sirs they would not willingly be brought to an acquaintance with them Such are Suitas The quality of the heir inducing a necessity of succession the definition of which has perplexed some of the Authors not a little yet no worse doubtlesse then the Haecceitas of the Metaphysicks as is confessed by them it is unheard of of old but say they in those things which by degrees are received and become of use we ought not too strictly to eye our selves to the Canons of the Grammarians Alciaet who is known to all the world often used the word superesse rebus Which is used for overseeing and managing anothers businesse more then Gellius ever knew or thought of where he blames another false and strange signification of the word which sayes he was inveterate and got strength not onely amongst the rabble but in the Courts it being ordinary to say bic illi superest for he is the Advocate of such one w l. 1. c. 22 neer the last sense Secta which is used for Reason interleverit for deleverit insidiare for insidiari infecta for corrupta honestus for dives which is a great depravation reformare for rescindere prodere for dimittere per aversionem emere which

some towardnesse collated the cases of both laws c. to shew that they both be raised of one foundation and differ more in language and terms then in substance and therefore were they reduced to one method as they easily saies he might they might be attained in a manner with one paines I make agreement no argument that lawes are the same where they have as t is said the same foundation but it may be an argument that where they agree in the foundation where the constitutions are neere the same where there are the same definitions and divisions of things they may be digested into a method alike Not to looke upon the twelve Tables we may finde a plain resemblance which I attribute to the foundation upon the Law of nature and Nations in these Lawes The Cornelian de sicariis veneficiis of murder poysoning firing houses de falso of forgery of all kinds of falsity Majestatis about taking arms raising forces c. the Cornelian de injuriis and Aquileian de damno of wrong trespasse damage battery done the Duilian Maenian de Coitionibus the Julian de vi of publike and private force Majestatis of high treason to which the Lutatian of publike force may be added in the digests and clswhere are Laws of discents rights and possession covenants and obligations against deceit in bargaines theft receivers breaking of prison c. of * Code 11. nou 3.5 Collet Churchmen and their possessions c. Besides saying it may be so to make it plain that persons and things propriety of lands and goods acquisition of these rights injuries and actions publike and private offences Writs Courts pleas c. may be listed in order in our Law as wel as any other This most learned Doctor in his Institutions has done it but briefly and according to the fashion of the Imperial Institutions Who saith he shall think himself happy if he can provoke any man to undertake the larger Volumes And Sir Henry Finch in his excellent book called the Law There is extant an Analysis of the Common law done by a reverend Atturney general heretofore where our Law is so naturally methodised and so happily that not onely no law else but no Science whatsoever can excell it for the order though I know want of method in Lawes is no solid objection nor so considerable as to need an answer The illustrious Viscount in his Aphorismes of the Law is of this judgement speaking of regeneration and new structure of Lawes he would have he sayes the words and text reteined and things orderly done Yet he addes in Laws neither stile nor description but authority and the Patron of it antiquity are to be regarded otherwise as he such a work would seem rather something of the Schooles and a method then a body of commanding Laws c Aphoris 62. Neither the Philosophers of old nor their admirers now are to be heeded in these things they may propose things specious but they are every where remote and farre off from use the onely notion our ancient Lawgivers and professors of the Laws intended The most of the Law is Historically related in Annals or yeer-books where the judgements of the Courts in the severall Terms of the yeers are reported as faithfully as they were given according to the true account of time as things fell out in which no method is requisite or can be more then in Histories where all things of the same kind are not ranged together but are set down as they were done And every Commentator must follow his text as he is lead But those who have writ of one certain subject not miscellanists have curiously enough observed this part And where the Annals of the Law which could not be otherwise as is said are thought to scatter things too carelesly The cases in them are abridged and digested under proper heads and titles By Statham Justice Fitzberbert and Sir Robert Brooke as the Statutes are by Justice Rastall c. so that there can be no reason for these complaints These objections onely shew a willingnesse to hurt but are short of doing it Principles of the lawes Lawes are to be tried and examined by their principles if there be any thing unsound there and dishonest too cruel and inhumane they may justly be taxed A Doctor of both the Lawes speaks thus of the Canon law The Canon law is nothing but an beap of ingenious precepts of avarice under the shew of piety few things in it are directed to religion and worship many are contrary and repugnant to them the rest are wranglings strife businesse onely of pride and gain fancies of Popes who have accumulated upon the Canons of the holy Fathers decrees chaff of the Extravagants deelaratories rules of the chancery giving those at Rome power to absolve from obedience break leagues dispence with oathes with the law of nature enough as he to make of the house of prayer a den of thieves d Van scient Here is something said for the sanctions of the sacred Law of the land may justly be said contrarily they commands all those things which are most honest and most just if there were no precept while some other Lawes allow directly the same things against God nature and reason which ours forbid as Incest among the Persians of the brother and sister was more then indifferent cōmunion of women praised by Plato e Repub. 4. amongst our families of love lending wives amongst the Spartanes Polygamie amongst the Mahumetanes and others with the unnaturall love of boyes which a Frenchman calls the ordure of the Greeks the bearded Philosophers approved it Plutarch censures not Agesilaus for it Adultery was commended by the example of their Gods Thieving among the sober Spartanes as Gellius cals them and Aegyptians and sleight of the hand from the greenest youth was honourably allowed by the Lawes of Licurgus not for base gaine but for discipline of warre as he all their policy was directed to the wars Piracy and robbery have been glorious no where heretofore amongst the Grecians in disgrace saies Thucydides This is manifest by some that dwell on the continent saies he amongst whom so it be performed nobly it is still esteemed as an ornament The ancient Poets introduce men questioning such as sail by on all coasts alike whether they be thieves or no as a thing neither scorned by those who were asked nor upbraided by those who would know much of Greece uses that old custom as the Locriozolae the Acarnanians and those of the Continent in that quarter to this day f Thucyd. l. 4 v. Justinum l. 44. Private robbery the Romans suffered not but publikely no men robbed more so that as one of their own if they had restored what they unjustly took away from others they must every man have returned to his Cotage again revenging of wrongs and feudes are much esteemed by Aristotle and Cicero exposing of infants slaves freed or sick men

was suffered in the Civil law parents by a law of the Tables might sell their children thrice g Sect. 18. The Lord had power of life and death over his slave h Insl l. 1. gloss servitus The Petronian law restreins from forcing them to fight with beasts at their pleasure not observed more then the Edict of Nero which deputed Cōmissaries to hear the complaints of slaves They put them to death for trifles Vedius Pollio threw a slave to be devoured of Lampries which he fed thus for breaking a glasse i Dio. l. 54. If a Lord was murdered by one servant it was the old custome saies Tacitus to condemne and put to death all the slaves according to which in the case of Pedanius secundus Provost of the City four hundred innocent men lost their lives k 14 Ann. Where law setled quietly without any awe upon those who are to receive it has too many of Draco's Rubrickes of blood it is terrible Our lawes are not cruelly bloudy they distinguish betwixt intentions and actions and actions as they have their degrees of mischief have their degrees of punishment King Edgar wills in a law That in offences clemency and forgiveness be used as much as justice so that punishment may b● tolerable l Ll. Nol. 1. Ll. Cnuti 1 2. ve a command not forgot it has continued with the laws Godlike mercy ever saving more then justice strikes Wisdom and mercy justice and grace are joyned m Beact l. 2. as is observed in the beginning No free man can by this law be disseised of his free hold but by lawful judgement c. In those articles against the most worthy Earle Hubert de Burgo he concludes It seems to him That he ought not to answer without restitution being disseised of what he had since no disseised man is obliged to answer in any Gourt c. n Additam Par. 153. This is more visible by the law since As the Lord Cooke if a man be accused or indicted of Treason or Felony his Lands cannot be granted to any not so much as by promise no seisure can be made before attainder o Inst 36 48 Mag. Char. c. xxii Abjuration challenges to the Jury Clergy were no smal favours of the Law If a Felon demand his book and can not read and demand it again under the Gallows and read he shall have the benefit of it p 34. H. 6.49 One Indicted of Felony produces a Charter of pardon discordant to the Jnditement and to his name the Court perceiving the King meant to pardon him remanded him to sue for a better pardon q 46. Ass B. F. Office del Court as if mercy were given in charge to the Justices they ought of office to take notice of all generall pardons though the party plead them not r Dy. 28. and there if all Felonies under twenty shillings be pardoned the Judges ought to dismisse him to God as the Booke who is indited where the Theft is under that sum The Justices heretofore knowing the Felon to be a Clerke who tooke himselfe not to his Clergy would not give Judgement to hang him ſ 22. E. 3. If the Prisoner for Treason or Felony has any matter of Law to plead he is to be allowed his Counsell after the plea of not guilty where it will not be allowed the Court ought to be instead of Counsell for the Prisoner to see that nothing be urged against him contrary to Law and Right Nay any learned man present may give information to the Court in behalfe of the Prisoner for his benefit t 3. Inst c. 2. The Judges as in Humphrey Staffords case is observed u 1 H. 7.26 3 Jus 29. ought not to give their opinions before hand which is condemning a man before he be heard the way to make indifferency impossible whereas as the Lord Cooke untill the party has made his defence things may be represented much to the disadvantage and a small addition or substraction may alter the whole Case In Common Pleas where the Defendant has accepted the Writ or Title where he has lost his advantage by his conclusion or the issue be found against him yet if it appear to the Court that the Plantiffe has no Title no cause of Action Judgement shall not be given against the defendant w Plowd 66 Dy. 13.76.119 120. Every restraint of a free man though not within the walls of a prison is imprisonment x 2. Just 482. Rot. Pael 2. H 4 nu 60. No man is to be arrested or imprisoned against the form of the great Charter before recited y 2. Just 54. No man is to be imprisoned but for a certain cause to be shown z ibid. 53. to be conteined in the Warrant c. the conclusion of which ought to be and him safely to keep untill he be delivered by law c. As the fift of king Henry the fourth None are to be imprisoned but in the Common Goale to the end they may have their tryal at the next Goale delivery c. As Justice Fitz Herbert to keep a man in prison without coming to his answer is against Law a Na. Br. 118. c. The Abbot of S. Albanes would not make a Goale delivery at the time to save costs he lost his Franchise by it b 8. H. 4.18 The Abbot of Crowland forfeited his Franchise for deteining prisoners after acquittal and their Fees paid c 20. E. 4.6 such deteining after the Habeas Corpus is false imprisonment d 2. Just 53. there are many provisions for those who are grieved in these cases by Indictment Writs and Action e ibid. 55. Though the law requires safe and streit custody that must be without any torment or pain to the prisoner relief may be had against cruel and hard usage of a Goaler f 3. Just 35 91 92. The prison as Bracton is not for punishment but custody A certain Priest arrained in the time of King Edw. the second put himself upon the Country and stood at the bar in Irons but by command of the Justices he was freed from them g Fish Corene 432. and as to irons saies the Lord Coke there is no difference betwixt a Priest and a layman h 3 Inst ubi sup No felons comming to answer in judgement ought to be charged with irons i Brit. c. 5.14 c. 11.17 The law of the Land is a law of mercy for three causes as the Lord Coke 1. The innocent shall not be wasted by long imprisonment but speedily come to his trial 2 Prisoners for criminal causes brought to their trial ought to be humanely dealt with 3. The Judge ought to exhort them to answer without fear to assure them that justice shall be duly administred k 2 Ins 316 The Law has a most tender regard as is said of the life of man By a Canon

of our old English Church he that killed a man in publike war was enjoyned a penance of 40 daies l Concil sax 383. By the Common law killing by misadventure or in a mans own defence was murder founded upon the judicial law before the Cities of refuge the forfeiture of both was as in the case of murder before the Statutes of Marlebr and Gloucest the forfeiture of goods and chattels remaines yet If he that kills by misadventure escapes the Towne where the Fact was committed is to be amerced m Fitzher Corone 302 2. Iust 148 149. So where the killing is se defendendo n 2. Inst 315. Mens lives are so precious in the Law that the death of a man cannot be justified the Defendant in an appeale cannot justifie the death se defendendo but must plead not guilty o B. Appeal 122. A verdict that A. killed B. se defendendo is not good the special matter must be set down that the Court may adjudge the killing to be upon inevitable necessity p Corone 302 Maiming wounding menace of life and member in defence of the possession of Lands or Goods is not justifiable An infant of nine yeers killed another infant and hid him c. the opinion of the Justices was that he should be hanged but execution wat respited c. q Corone 57 3. H. 7 d. 12 If a man be drowned by mischance in any pit not fenced the Town is to be amerced r Coroue 304.320 v. 339.402 421. so where a man dyed suddenly of a Feaver and was buried without viewing by the Coronour ſ ibid. 329. a Lunatick kills a man he must sue for his Charter of pardon t ibid. 351. And where the worst of men suffer those punishments which Justice inflicts which it were cruelty destructive to Government and Society to forbear it is well said to punish the Homicide and sacrilegious is not effusion of blood but ministery of the Lawes I say where justice doe strike it is with an humane severity the offender with us does not carry to the place of execution his own Crosse he is not first whipped then nailed naked to the unhappy tree as it is called we have no Italum Robur Robur or strong hold as it is Englished in a stinking prison horrible for darknesse where malefactors necks were broke by tumbling them headlong from the stock of a tree there fastned in the earth No rack or brake where the party innocent oftentimes was tormented till he accused and condemned himselfe being hoised upon it and fastned with ropes to it his hands at the upper part and feet at the nether part his joynts were not onely racked but the tormentors oft burnt and tore the flesh from his sides with hot plates and Iron pincers Those who would have introduced the Civil law in the time of King Hen. the 6. brought the rack into the Tower * 3 Just c. 1. as a beginning to it Hereupon as is observed the most reverend Sir Iohn Fortescue Chancellor or rather chiefe Justice of England writ in commendations of our Lawes where he maintains that all tortures are contrary to them There is no Law saies the Lord Coke to warrant them in this land Although there were no ful proofs against some of those horrible miners in the Gunpowder treason yet was it not thought fit if the discovery could be made any other way to take the extraordinary of the rack Some other legalartes were used yet I cannot tell what could have been extraordinary or illegall in the case of such Hellish parricides who if they could superas evadere ad auras and assume bodies could not much exceed themselves Garnet and Hall betrayed themselves by their own conference which was permitted to catch them That conference is called by the Earle of Salisbury The finger of God Thereby so he tels Garnet the Lords had some proofe of matter against him which must have been discovered otherwise by violence and coertion a matter saies the Earle ordinary in other Kingdoms but forborn here c. v Proceed against the Gunpowder Traytors He addes His Majesty King James and the Lords were wel contented to draw all from Garnet without racking or any such bitter torments We have no dejectio è soxe like that headlong throwing down from a rock in the Tarpeian mount Nothing like the Gemonian staires whether the malefactour was either dragged * According to Tacitus Aun l 5. and cast into the Teuere It is said there was not so much left of Sejanus untorne by the people which the Hangman might fix his hook on to draw into the River or as others haled by the Executioners hook thrust into his throat and having his thighs broken burnt clad in a coat dawbd on the inside with pitch and brimstone We have no sawing asunder from the head downward no condemning to a Fencing schoole to beasts mines or mettals no banishment deportation no most barren Gyaros to confine men to not so much as relegation is known in our Lawes No empaling no wheele No deflowring Virgins by the Hangman before they be put to * Quia in auditum saies Tacitus trium virali supplicio virginem affici it had bin far lesse to have broke the custome then to ●●de this ●●k ●o keep it L. 5. Ann. death Before Villainage expired here the villain might bind his Lord to the peace he could not kill him if he maimed him he might be indicted fined and ransomed By Magna Charta which is affirmance of the Common law No free man is to be amerced but according to the manner of his offence Misericordia is the word used for amercement there must be mercy in it saving his countenance salvo contenmento c. the Merchant saving his Merchandise the villain his wainage x Chap. 14 Glanu l. 9. c. 11. No amercement is to be set here upon private men but by affeerours who are to affirm upon oath what penalty the offender has deserved as Bracton to doe things fairly neither carried away out of love nor hatred The Writ of Moderata misericordia of moderate amercement is grounded upon this Statute which it reciteth and gives remedy to the party who is excessively amerced If the Jury give excessive damages against any man Attaint lyes usury is not to run against the heir within age y Stat. Mert. c. 56 among the Saxons it was unlawfull hence where rent is to be doubled for default of payment it shall not be doubled during minority of the heir Distresses are to be reasonable and if there be any other chattels sufficient sheep and beasts of the plough are not to be touched It would be infinite to goe on I should as we say not onely want day but a long life were too short to make a survey of all the parts to contract all the graces of this body and pourtray them so that they may be a little and

a far off seen A strong vein of reason runnes every where in the Law but so sweetened with equity and clemency it may well be thought made in a paternal government given by a common father of a family to his children By Judah or Joseph to their Tribes ruling but without a sting Justice must as is said pare off unsound parts such as else would corrupt and destroy the whole body no government can subsist without it Quae fecit si quisque ferat jus fi●t aequum There is no greater equity then this that we should be done to as we doe But how unwillingly the Law descends to these last remedies may be seen by the many favours before recited allowed to the most heynous offendours whom yet it does not pity but the frailty of man in them Onely is the innocent and honest man beloved and safe as he onely ought to be in the law He who shall transgresse the Lawes which is not a single impiety such one as much as lies in him frames a new Commonwealth to himselfe and new lawes as if he had power to free himselfe from those bonds which nature and civil subjection have tied him in who casts off all obedience to peace and justice who maliciously violates the sacred inhibitions of restraint wickedly breakes through all those barres which no law can prevent religion and conscience must give the check if he fall or break his neck by the way the Lawes are not to be complained of the calamity of his ruin is meerly to be imputed to himselfe though sometimes the punishment may be thought severe it is never new nor inhumane never so great as the offence One of our terrible judgements so it is called is the judgement in an indictment of conspiracy the same which was in case of attaint against a Jury by which the bodies of the offenders were to be imprisoned in the common Gaole Their wives and children to be turned out of their houses those with their lands to be seized into the Kings hands to be wasted and their trees extirpated all their goods and chattels to be forfeited the Conspirators for ever to lose the benefit of the Law this was called villainous judgement As the Lord Coke inflicted by the Common law for that the offenders by salse conspiracy under the pretext of Law by indictment of treason or felony and legal proceeding thereupon sought to doe the greatest injustice by false conspiracy to shed his bloud who afterwards is lawfully acquitted z 3 Inst 222 Subtilty which wrests a manifest text of the Law is condemned as unrighteous a Hub. 125. So is cunning and malicious interpretation of the Law there He who wrests a text of the Law though to maintain truth does against distributive justice saies the Lord Coke b r. 10. praef v. leg non dubiū One reason of the severity of this judgement may be given in the words of the Statute of the banishment of the Spencers The Law which was instituted for the maintenance of peace and of good men and the punishment of the evil is turned by such courses to the disheritance of the great men and destruction of the people c 15. E. 2. 3 ●nst 222. If the party acquitted that we may see how many severall waies the law provides for the innocent man bring his action against the Conspirators as he may he shall recover answerable damages all practises to subvert justice truth and innocency are punished by the law he that wil professe himselfe the advocate of wickednesse and injustice and declaime against the Law for suppressing them deserves to fall into the danger of what he too unjustly loves Perjury of witnesses and subornation were ever odious in the law The murderer perjured man and adulterer in an old law goe together d Ll. Cnuti c. 6. perjury was punished by the realsfang or pillory the punishment of perjury was too to quit the Countrey after forfeiture of moveables e Fleta l. 2. c. 1. then fine and ransome f Brit. 38. Now forfeiture of a certain sum and imprisonment g 5 El. c. 9. Bribery was ever abominable the judgement against Sir William Thorpe a bribing Judge was as in felony In Fleta the punishment of a corrupt Judge was to be excluded the Kings Councel for ever to lose his lands rents goods and their profits for a yeer after to be punished by discretion c. It came to fine and ransome No great Officer Justice nor publike minister by a Statute shall take any gift or brocage of any person who hath to doe before him 11 H. 4. under the penalty to forfeit the treble lose his place to satisfie the party c. to offer a bribe was an offence punishable by the Common law Extortion is another great misprision punishable by fine and imprisonment h Trin. 6. Car. reg in Camara flell It would take up too much time to run over the names of all offences and their punishments But some are full of Sir Thomas Moores kindnesse and think it too much that a man should lose his life for crimes under murder as for theft c. for which antiently losse of a hand or leg or banishment were in use i V. Concil Berghamsted Concil 197. Ll. Cnuti c. 61 Ll Ina c. 3● AEthelst c. 1. yet the party taken in the manner hand habend might be killed amongst the Saxons he could not buy his crime out and the Spanish condemning to Gallies is thought by some the onely course Mr. Daniel will have it that as yet writing of Henry the seconds time they came not so far as blood which is not so King Henry the first abrogating the weregilde by which a man might have bought out his offence made a law sayes Haveden ut siquis in furto vol latrocinio deprehensus fuisset suspenderetur to hang the thief k Hoved. Sav 47 1. in H. 1. with whom Wigornien sis and Rad. Niger agree after in the latter end of the reigne of king Henry the third we finde a thiefe who had stoln 12 oxen beheaded l Ma. Par. continat 1005. Capital punishments have not onely been in use against homicides but other transgressours too and amongst those who worshipped God rightly We meet with no divine precept before Judah which makes whoredome worthy of death yet when he is told Tamar thy daughter in law bath played the harlot He answers bring her forth and let her be burnt We may proceed sayes Grotius by conjecture of the divine Will with the help of natural reason from like to like and that which is a law against homicides may be extended to others as dangerously mischievous m in b●l 14. I will not dispute it whether there be more mercy in death * v eadm 94 cutting off legs c. or in the Gallies I believe the boldnesse and number of such malefactors begot the law of death and those

exemptions By which the Clerks were to be for ever beyond the free years of Pompey dispensed with freed from the Laws The most reverend Chief Justice Fineux in the Case of convening Clerks of which before asks the Archbishop of Canterbury who would have such offenders delivered to the Ordinary if this were granted what he would do with the parties so delivered you have no authority says he by the Law to determine matters of Felony to which no answer was given b Kell 7. H. 8.185 The Saxon founders and indowers of the most of our Churches left never-dying Monuments of their Faith and good Works The Laws of King Aethelbert the first Saxon King begin with the Church and make provisions for that c Ll Aethelbertic 1. King Jua hath Laws concerning the life of the Clergie Baptism of Infants hallowing the Sunday The Churches sceat or part very unjustly translated Church seed Sanctuaries striking in the Church d Ll Ina. c. 1.2 3 4 5. 6. v. ll Alfred c. 2.5 6 21. ll Ed. sen c 7. King Aethelstane for Tythes the teoꝧe tenth e Ll. Aethelst proem So have the Kinge Edmund and Edgar f Ll. Edm. c. 2. Edg. c. 2.3 The same Aethelstane concerning Church-Burglarie g C. 5. Edmund again concerning repair of Churches h C. 5. King Cnut for the peace of God and the Church i Ll. Cnut c. 2.3 The Councel of Aenham a Lay Councel Commands that all men defend Gods servants and honour them k Ch. 30. ll Cnut c. 4. As much respect was to be given the Priest as the Thane l ibid. c 2. The head of the Mass Thegne and of the Wordly Thegne or less Thegne are valued alike m Ll. Aethelst Be ƿerum What priviledges the Church injoyed in its possessions may be seen by the pieces of Charters before recited and the plea of Pinnedene I will note one Law alone of the Saxons for the Churches liberty which is this aenig man heonan foƿð cyrican ne þoƿige Let no no man make the Church ser vile impose any servitude upon it n Concil Aenh c. 9. Let peace be binnaen ƿagum within her walis o Ibid. Magna Charta begins We have granted to God c. That the English Church be free and have all its Rights and Liberties whole c. of which the reverend Commentator says thus Ecclesiastical persons have more and greater liberties then others to set down all would take up a whole volume c p Mag. Ch. 1 Com. 3. v. 2. R. 2. c. 6. R. 2. They have this priviledge not to serve in person in War To be quit of Tolles and Customs of Average Pontage Paviage c. for their Ecclesiastical goods and if they be molested there is a Writ given for their discharge by which it appeareth says the same Commentator This was the ancient Common Law of England There is a protection with the clause Nolumus where they feared their beasts or goods or those of their Farmers might be taken by the Kings Ministers They are discharged of purveyance for their own proper goods No distress can be made in the ancient indowments of the Church by any Officers whatsoever Upon a Statute acknowledged by an Ecclesiastical person his body cannot be taken If he had not paid upon a recognisance at the day Nolevarifacias lay at the Common-Law if the person had nothing but Ecclesiastical goods c. Where a Capias lies and the Sheriff returns that the party is a Clerk beneficed having no Lay Fee no Capias should issue to take the body but a Writ to the Bishop to cause him to come and appear Otherwise had not the word Beneficed been in the Return No Ecclesiastical person is bound to appear at Tourns or views of Frank pledge The Church hath its place in the Parliament Writs Though it be last named it is the first says the Lord Coke in intention q 4. Jnst 9. The Magna Charta in the Title speaks thus For the Honour of God bealth of our soul exaltation of holy Church and amendment of the Realm The Title of the Statute of Confirmation of that and the other Charter is Know that we to the Honour of God and of Holy Church generally the Church leads r 25. E. 1. 1. E. 3. 2. E. 3. 5. E. 3. 15. E. 3. 31. E. 3. 47. E. 3. 1. R. 2. 2. R. 2. 5. R. 2. 6. R. 2. 7. R. 2. 13. R. 2. 21. R. 2. 1. H. 4. 4. H. 4. 8. H. 6. 28. H. 6. 39. H. 6. 1. E. 4. 3. E. 4. 1. R. 3. 1 H. 7. 2. H. 7. 3. H. 7. 4. H. 7. 11. H. 7. 12. H. 7. 19 H. 7. 1. H 8. 3. H 8. 4. H. 8. 5. H. 8.6 7 12 23 24 25. in Richard the thirds Parliament too Weal Common-weal Weal-publick and profit of the perple are ordinarily found in the Titles of the Statutes If we consider the Justice Equity Mercy and goodness of the Laws for the tree of Piety is known by this fruit the only scope of them being every where to relieve the poor and oppressed and to protect the innocent the Religion and Devotion of our Forefathers will plainly be visible in them as their civility and humanity are whose memories we ought to honour unless we will teach our Nephews how to neglect and sleight our selves and we cannot honour them more then by the imitation of their plain honesty and constancy it is rather Tyrannie over others then presumption to yeild nothing to all men else and to look that all men else should yield to us this we ought to do And although fortune may have too much power over virtue though nothing be got by it yet after death and corruption of the parts mortal vertue perfumes the grave it ennobles and by example sometimes refines the posterity leaves a taste of Immortality behinde it the Great mans name cannot outlive his Marble it moulders away or is plucked up with it the Good man is his own Monument he lives every where who doth not need an Epitaph Victory over our selves over our own passions private interests pride vain-glory rashness levity is the most glorious and most honest victory such a Conquerour would undo Caesar and such a true line Here lies a Good man who loved his Country and never broke the Laws makes the Stone or Brass more rich and precious then those Aegyptian Wonders which have survived their Founders who is quite forgotten and buried in them What will much content some no doubt by Magna Charta Mala tolneta all evil Tolls Customs all Praestations and Impositions for Merchandise Imported and Exported are taken away ſ c. 30. By the Statute of the Confirmations of the Charters the Magne Charta and that of the Forrests There is a Grant so are the words Not to take aids or Subsidies but by comman consent and for the common profit t c 5