drifts there shall be found any Mare Filly Fole or Gelding that then shall be thought not able nor like to grow able to beare foles of reasonable stature nor to doe profitable labours by the discretion of the more number of the said drivers then the same shall bee killed and buried or otherwise bestowed Stewards of Leets to enquire of all defaults and to certifie the presentments unto the next quarter Sessions or to the Custos Rotul of the Countie within 40 dayes after such presentment made to be heard and determined by them or else The Steward to forfeit 40 shillings Horses infect NOne shall have or put to pasture any Horse Gelding or Mare infect with scab or mange into or upon any Commons or common fields upon paine to forfeit to the Lord of the Leet for every such Horse c. so infect ten shillings This offence to bee inquired and presented in the Leet as other common annoyances Nota this Statute in the most and fortilest shires of the Kingdome doth limit 15 handfuls and in the rest but 14. And by the 21. Iac. ca. 28. in fine This Stafor the breed and stature of Horses and killing of Fillies c. shall not extend to Cornwall The life and spirit of all law doth consist and depend upon the due execution of it For which purpose there must be fit places and instruments of custodie and correction for offenders and an upright care and integrity in officers for performance of their duties Pillorie c. EVery one who hath view of Frankpledge or the precincts and liberties of a Leet ought to have a Pillorie and a Tumbrell whereby to do justice and every Tything ought to have a Stocks as well for the keeping and safe detaining of offenders untill they bee brought before Iustices of peace or other Magistrates as also for the castigation of malefactors and disordered persons as Drunkards and others or else five pound forfeited The often cited ancient Law of 51. Hen. 3. doth injoyne an inquirie if any Steward or Bay liffe for any reward shall remit the judgement of the Pillorie or Tumbrell and si habeant in villa pillorium debitae fortitudinis c. a Pillorie of convenient strength as appertaineth to the libertie of their marker which they may use if need be without bodily perill either of man or woman Constables Ale-conners c. IF any Constable Aleconner Bay liffe or any other officers within the libertie doe not well and duely execute their offices according to their severall oathes and duties Purveyer IF any Purveyer shall make any purveyance for the Kings house of any thing to the value of forty shallings or under 20 H. 6. ca. 8. and not make readie payment to the party It shall be lawfull to the owners to retaine their goods and to resist such Purveyers That every Constable Tâ—thiugman or chief pledge of every Towne being required shall be assistant to such owner or seller upon paine to yeeld unto the party grieved the value of the things and double dâ—mmages 20. Her 6. ca. 8. Huy and Cry TO abate the power of Felons it was commanded that Cryes shall be solemnly made in all Counties Hundreds markets faires and other places of great resort and that immediately upon robberies and felonies committed fresh suite be made from Towne to Towne and from Countrey to Countrey according to the Statute of Winton 13. Edw. 1. ca. 1. In this service the Constables and Tethingmen have speciall interest and their contempt or negligence here inquirable Outcries made without cause BVt if any Huy and Cry be levied or any out-cry made without any ground or cause to the disturbance of the Countrey and the peace of the people inquirable Watch and ward ALso the Constables ought to see that the peace be kept and watch and ward observed from Assension day till Michaelmas continually all night from the Sun setting till the Sun rising according to the number of the inhabitants of the towne 13 Ed. 1. c. 4. And that search be duely made every moneth for unlawfull games That the Statutes made against haunters of Alehouses and Drunkards bee duely put in execution If the Constables have beene remisse and delinquent in these or any other things touching any part or branch of his oath and office It is presentable All Officers Defaults ANd so all other Officers whatsoever which owe any suite and service to this ancient Court as Tethingmen or chiefe pledges Surveyers of highwayes Searchers and Sealers of Leather and such others according to the Customes and Iurisdictions of severall Courts The profit of the King or Lord of the Leet CErtum Letae In most Leets there is a duety or common fine called in some place Certum Letae payable to the Lord. The reason and Commencement of it is before declared If that or any custome or duâ—tie be withdrawn it is presentable Mortmaine TO preserve the services due of the Fees and tenures of Lands 7 Ed. 1. which at the beginning were provided for the defence of the Realme and to prevent the losse of the escheats of the same It is ordained that no person religious or other shall presume to buy or sell any lands or Tenements Or by colour of any gift or terme or by reason of any other title whatsoever or by any craft or engin appropre to himselfe any lands or Tenements whereby it may in any wise come into Mortmaine If any doe offend it shall be lawfull to the King and other chiefe Lords of the fee immediate to enter into the Land so aliened within a yeare from the time of such alienation and to hold it in fee and as inheritance and if the chiefe Lord immediate be negligent then the next chiefe Lord may enter within halfe a yeare after c. Treasure Trove IF there bee any Treasur-trove viz. treasure put into the earth and no man knowes who hath hidden it it belongs either to the King or the Lord according to the ancient rule of the Law Thesaurus inventus competit Domino Regi et non Domino libertatis nisi per verba specialia in facto libertatis contenta vel per praescriptionem antiquitus fuit inventoris de jure naturali nunc de jure gentium efficitur Domini Regis Estreyes ALL Estreyes are here inquirable that is If there be any Horses Piggs Hogs Cattell or Swans which have come within the Lordship and beene there a yeare and a day and not claimed the Lord may have them by prescription But such beast ought first to be impounded in an open pound proclaimed in three Market townes next adjoyning and then if none claime them they shall be seised and ought to bee put into some severall land and not into any covert or wood where the owner cannot finde them For if they be in covert the propertie is not altered though they be there a yeare and a day Wayfes CAtalla Waviata when a theefe upon huy and cry and pursuite
A TREATISE OF The Antiquity Authority Vses And Jurisdiction of the Ancient Courts of LEET or view of Franck-Pledge and of Subordination of Government derived from the Institution of MOSES the first Legislator And the first imitation of him in this ISLAND OF Great BRITAINE by KING Alfred and continued ever since Together with Additions and alterations of the Moderne Lawes and STATUTES inquirable at those COURTS untill this present Yeare 1641. With a large Explication of the old OATH of Allegeance Annexed LONDON Printed by R. B. and are to be sold by G. Badger at the Kings Head in St. Pauls Church-Yard 1641. TO The Right Honourable the Knights Citizens and Burgesses Assembled in the Commons House of PARLIAMENT And in that Numerous Assembly to the Worthy SPEAKER His much Honoured IOHN SELDEN ESQUIER with the rest of the Learned long ROBE THis Treatise of the most Ancient Court Leets Right Honourable containes in it the severall Crimes and Offences there inquirable as well by the Common Law as by diverse Statutes whereof many of this great Congregation had a Vote and interest in the making Jt hath bin the work of many intercisive houres and had a whole winter-Age under the over-sight of a Iudge Sir Edward Coke famous in his time somtimes an Honourable member of former Parliaments How it was entertained by him and with what benediction it returned to the Author from him is well knowne to a Gentleman yet living his then Amanuensis Since it pleased his late Majesties Attorney generall upon a reference to him from his Sacred Majesty dated December 1634. Tho. Tesdall Esquier to recommend the examination of this worke and the Statutes therein cited to an able Counsellor of Grayes-Inne who after a deliberate perusall and consideration had of it did at the end thereof Certifie his opinion in these words I have seriously perused this Tract concerning Court Leets 13. Iuly 1636. and finde it to bee compiled with much care and diligence And I conceive generally well composed and usefull to bee published Not long after this the Decree of the Star-Chamber intervening for limitation of the Presse upon some strict termes This little Creature had the happinesse to be reserved for these long lookt for times The motive inducing the publishing of it is a three-fold engagement of the Author 1. Debitum reipublicae a debt due from him to the Common-wealth for expiation of the many lost and mispent houres of pretious time 2. Jt is debitum professionis a debt of his calling or profession wherin every man is but a Steward and must render an accompt Hee must not reponere talentum in sudario but so order and improve it that hee may be enabled to cast if not a Talent yet a Mite into the Common Treasury 3. * In Vita Aturedi It is debitum promissionis in praelo a debt of Promise and that in the Presse All legall promises especially those which are publikely attested are inviolably to be observed Now the end of publishing it is for the common good For sithenoe the Leet is justly termed schola insigniendi juvenes It is very necessary that the sonnes and servants of Farmers Yeomen and others versed in rurall affaires should bee disciplined in the Lawes under the government whereof they live and have their protection And for their better instruction J have in the rehearsall of the severall Statutes declared the paines and penalties for the benefit of persons who have not Statutes at large or abridgements Reverend Master Crompton in the Dedication of his Iustice of Peace affirmeth that hee thought fit to set downe the penalties and punishments due to every offence mentioned in the charge contained in that booke in pursuance of the Order and method prosecuted by the Honourable Sir Anthony Fitzharbert in his treatise of that Subject and in imitation of the usage and custom of the Iustices of Assize in their Circuits deeming it necessary to informe the people as well of the punishment as of the offence And if parvis fas sit componere magna I have presumed to take my patterne thence that offenders may know the proportion of their paine as well as the quality of their crime And now right honourable this treatise together with the other annexed the Author doth most submissively present unto this thrice Honourable Assembly humbly imploring the vouchsafement of Your Honourable Licence and safe Conduct for those innocent Twinnes to passe cheerefully into the world That they may be disposed and imployed to that end for which they were compiled as Your Honours shall thinke fit The God of all Counsell and Consolation be present and President in all your religious Counsells and Consultations and multiply his blessings upon this whole body as well in all your publike as private affaires For which the Author will never cease incessantly to pray Rob. Powell The Table of the severall Sections in the first part of this Treatise THe Preface or Introduction touching the occasion and Originall of Lawes The first Institution of subordination by Moses The first promulgation of Lawes and the beginning of legall oathes for administration of Iustice The first imitation of Moses in this Kingdome by King Alfred The first division of this kingdome by King Alfred into Counties Hundreds and Tythings The appointment of Officers and making Lawes for the better ordering of the Kingdome The Statutes concerning the approvement of Wastes-Woods c. and other Lawes derived from the Law of Alfred cited by Mr. Cambden The manner of proceeding by Iuries in those subordinate Courts of Counties Hundreds c. All subordinate Iustice derived from the King and Crowne The most principall uses of Court Leet stand upon three points The oath of Legeance ministred at those meetings first instituted by King Arthur Three things considerable in the keeping of Tournes and Leets 1. Time 2. Place 3. Persons To answer an objection for the time that all Leets are not kept infra mensem after Easter and Michaelmas In what cases and by what meanes a Leet or franchise may be seised or forfeited or the Lord damnified A direction for Lords in choosing their Stewards The properties and qualities which a Steward ought to have The authority of a Steward in Leets A Stewards power to impose a reasonable fyne And such fyne is not afferable nor traversable The remedies for recovery of fynes and amerciaments in a Leet Certaine cautions in the taking of distresses The last act or period of proceedings in a Court Leet is Afferement The ministeriall part of a Court Leet in the levying of fynes and amerciaments assessed A speciall caution for Lords of Leets against the farming out of their perquisites THE Antiquity Authority Vses and Iurisdiction of Court Leets or view of Franck pledge c. The Preface or Introduction touching the occasion and originall of Lawes WHilst man stood in the state of Innocency There was no sinne and so no need of any written or positive
whether the robberie bee committed in the day time or in the night Co. lib. r fo 6. Ashpoles Case the Hundred shall not be liable but where the robberie or felonie is committed in the day time yet if diverse doe commit a robberie those of the Hundred ought to apprehend all the felons for though they apprehend some of them yet that will not suffice to excuse them unlesse they apprehend all of them by that Statute of 13. Edw. 1. But now it is qualified in that point by the Statute of 27. Eliz. cap. 13. By which if any of the Inhabitants of any towne village or hamlet next to the place where the robberie was done do in their pursuite apprehend any of the offenders that shall excuse them though all bee not taken The Statutes concerning the approvement of wastes woods c. and other Lawes derived from the Law of Alfred cited by M. Cambden FRom that Law of King Alfred the Statute of 13. Edw. 1. cap. 46. concerning approvements of Wastes Woods and Pastures may seeme to borrow its light whereby it is provided that if any having right to approve do levie a Dike or an Hedge and some by night or at any other season when they suppose not to be espied doe overthrow the Hedge or Dike and men of the townes neere will not indict such as be guiltie of the fact The townes neere adjoyning shall bee distrained to levie the Dike or Hedge at their owne costs and to yeeld dammages At the Common Law if one be slaine in any towne in the day time so long as it is plaine day light and the man-killer doth escape the town where the Felonie was committed shall bee amerced for it Dum quis felonicè occisus fuit per diem nisi felo captus fuit tota villata illa oneretur This I thought pertinent to my present discourse to parallell that ancient Law of Omnes ex centuria decima Regis mulctam incurrerent with our latter Lawes whereby towneships are onerable upon the escape or not apprehending of offenders in certaine cases Besides that good and profitable Law amongst many others that gracious Prince did further decree that the Decurio or Tything man might judge of small matters and the Centurio or Constable of greater matters and at the fiequent meetings in every Satrapie or Shire now called Countie Courts the Senator or Greve was to heare and determine matters of greatest difficultie and moment King Edward sen succeeded who made a law De diebus cogendi populi Edw. sen An. 900 Lamb. fo 51. that every Greve Praepositus quisque should every moneth call the people together doe every man right and decide all controversies which confirmed the use of the Countie Court King Edgar made a law De Comitiis Centuriae Comitiis quilibet interesto That is to say Edgar Anno 599. let every man be present at the Leets or meetings of Hundreds but out of every shire let there be a more famous meeting twice a yeare Celeberrimus autem bis quotannis Conventus agitor and this is now the Sheriffes turne This King did farther decree Lamb. fo 80. that each person should finde pledges who might bring him forth to render every man his owne Quisque fidejussores qui eum jus suum cuique tribuere quam paratissimum praestent adhibeto The manner of proceeding by Juries in those subordinate Courts of Counties Hundreds c. NOw the manner of proceeding at that time in those meetings called Centuriae Comitiis Satrapiae Comitiis now called Court Leets and Sheriffes turnes doth appeare by a Law practised in those dayes and after revived by King Etheldred who lived Anno 979. which thus insueth In singulis Centuriis Comitia Sunto at que liberae conditionis viri duodeni aetate superiores Lamb. Expâ—â— verbo unâ cum Praeposito sacra tenentes juranto se non innocentem damnaturos sontémve absoluturos Let there be meetings in every Hundred and let twelve freemen of the better sort together with the chiefe pledge sweare upon the holy Evangelist not to condemn the innocent nor to acquit the nocent that is to doe every man right I will passe over many good lawes before the Conquest let us cast our eyes a little neerer and see how the Counsell of Iethro to Moses hath beene since pursued Bracton a learned and famous Common Lawyer who wrote in the time of Hen. 3. from the Conquest writes of the practice and duties of Kings Rex non alius debet judicare c. Bract. l. 2. cap. 2. The King and none else ought to judge if he alone be able to doe it sithence he is bound thereto by vertue of his oath and there fore the King ought to exercise the power of law as Gods Vicegerent and minister on earth Sin autem Dominus Rex ad singulas causas determinandas non sufficiat c. But if the King be not able to determine all causes that his labour may be the easier in plures personas partito onere eligere debet de regno suo viros sapientes timentes Deum in quibus sit veritas eloquiorum qui oderunt avaritiam quae inducit cupiditatem Et ex illis constituere justiciarios vicecomites alios ministros ballivos suos ad quos referantur tam quaestiones super dubâ—is quam querimoniae super injuriis c. He ought to choose out of his Kingdome wise men fearing God and hating coverousnesse and out of them to appoint Justices Sheriffes and other Ministers to decide questions of doubt and to redresse injuries c. All subordinate Justice derived from the King and Crowne IN a cause of Replevin upon a distresse for an Amerciament in a Leet 12 Hen â— 18 Fineux then chiefe Justice in his grave and learned argument affirmes That at the first the administration of justice was in one hand and in the Crowne and then afterwards by reason of the multitude of people the administration of justice was divided into Counties and the power was committed to a depatie in every Countie that is to say a Sheriffe who was Bayliffe and Deputie to the King and was assigned for conservation of the peace and to punish offenders and to defend the Realme upon invasion of enemies to bee attendant upon the King in times of warre and to cause all his people within his Countie to goe with him for defence of his land and for the better governement of the Countie and correction of offenders There were two Courts assigned to him viz. the Countie Court held every moneth and the Sheriffes turne held twice every yeare by which two Courts the whole Countie was governed the Countie Court was for one man to have remedie against another for any thing betweene them under 40. shillings And the Sheriffes turne unto which every man within the Countie of a certain age should come and were compelled to come that
when men ought to intend devotion and other workes of charitie for remedie of their soules and sometimes after the gule of Harvest when every man almost was busied about the cutting and carrying of his Corre Plowd fo 316. b. The Calends of Aug. or the feast of S. Peter ad vincula 31. Edward 3. ca. 15. whereby the people were much grieved and disquieted King Edward the third upon the grievious complaint of his Commons desiring the quietnesse of his people did ordain and stablish that every Sheriffe from thenceforth should make his Tourne yearely one time within the moneth after Easter and another time within the moneth after Saint Michael and if they held them in other manner that then they should lose their Tourne for the time As it was restrained in time 2 Place So it was to place and persons it must bee kept within the precinct and libertie in loco debito et consueto If it be holden otherwise it is coram nonjudice And the matter of cognizance must bee within the view For 41. Edward 3. fo 31. Kyrton cites a Case wherein the Lord avowed the taking of an amerciament for the stopping of an High-way which in rei veritate was out of the Iurisdiction of the view and therefore the Plaintiffe recovered dammages If the Sheriffe shall keepe his Tourne in loco in consueto he may be indicted and punished for it 3 Persons Dyer 151. As for the persons Although in the time of King Arthur Omnes Proceres Comites Barones c. were to sweare and doe their suit reall in pleno Folkmote yet by the Statute of Marlebridge Marl ca. 11. it is thus provided by way of restraint De turnie vicec provisum est quod necesse non habeant ibi venire Archiep scopi Episcopi Abbates Priores Comites Barones nec aliqui viri religiosi seu mulieres nisi corum praesentia ob aliam causam specialiter exigatur c. So by this Statute All clergie and religious men All Earles Barons and all women are excepted and exempted and by the law al other people under the age of 12. years their presence being not necessary there in regard they are never sworne upon any inquests But all freeholders terrtennants and other persons inhabiting within the precincts of the Leet ought to appeare and do their suit and tennants in ancient demesne are not bound to come to the Sheriffs Tourne and consequently not to any Leet If any of the said persons mentioned to be exempted Fitzâ— na Bre. f. 158.161 or if any in wardship to the King should be distreyned to do their fuite the law hath provided severall forms of writs De exoneratione sectae for discharge of every of them Whatsoever the law prescribes or restreines in the Sheriffes Tourne Broo. Leet 26 22 Edw. 4 22. the same is binding in a Court Leet and it was agreed for law that the power of a Sheriffein the Towne and a Steward in the Leet were all one onely the Leet have power to enquire and take presentments of nusances and offences aswell in the Courts after the feast of Easter as after the feast of S. Michael Fitzâ— Leet 11 whereas the Sheriffe in his Tourne after Easter ought not to enquire of any action popular c. but only to take suite of the resiants and other suitors and to take the view quod trithinga teneantur scilicet That all above the age of 12. years come and appeare there to doe their suite and to take the oath of Legiance if they were not sworn before For after a person is once juratus in decennaria or ad fidem legeanciam Domini Regis hee is not compellable to be sworne againe As a Leet is derived by grant from the crown Forseiture of a Leet so by divers causes that may be seized into the Kings hands and returne to the Crowne againe and if for any just cause it bee forfeited and seised then must the resiants and suitors againe attend and doe their suite at the Sheriffes Tourne and what is omitted in the Tourne might be presented in the Kings bench for in the case of Iohn Charneles Edward the third Belknappe sets forth the law to be that if a thing were not presented within the Lords view then it should bee presented in the Sheriffes Tourne and for default there it should bee presented in the Kings Bench when the King came into the countrie by which it plainely appeares as before is expressed that the Iustice of the Kingdome was at first wholly in the hands of the King and immediately derived from his person to Subalterne Officers To answer one Objection for the time that all Leets are not kept strictly infra mensem after Easter and Michaelmas VVHere there are ancient Customary Courts of Tenants in ancient demesne or such like that were ever exempted from the Sheriffes Tourne and the Lords of such lands had their owne Tournes that of Easter being called Turnus de Hockday and that of Michaelmas Turnus Sancti Martini as in the Bishoprick of Winton and other places those Courts are left to their Arbitrary keeping either before or after the moneth or at other set times according to their ancient respective Customes and not restrained by any Statute Britton the tenour of whose learned worke runneth in the Kings name Edward 1. as if it had beene penned by himselfe answerable to Iustinians Institutes doth there in the first salutation of the Kings subjects with Edwardus Dei gratia c. set forth That because his peace could not well have its being without Law he caused the Lawes then used in this Realme to be put in writing and did thereby command a strict observation thereof in all things Saving a power to repeale alter and amend all such things as should seeme meet unto him with the advice of his Earls Barons and others of his Councel and saving all customes unto those as by prescription used the same time out of minde so as those usages were not discordant unto right At that time being 5. Edward 1. those ancient customarie Tournes within many particular Lordships were in use not subject to the Sheriffes Tournes and so not within the meaning of the Statute of 31. Edward 3. cap. 15. which being made long after extendeth not to any Leets but such as were and are derived out of the Sheriffes Tourne and so it was admitted by the Iudges that the Leet of another Lord was not within the Statute but the Leet of the Tourne Brooke Leet 21.6 Hen. 7.2 And so by necessarie consequence All Leetes derived out of the Sheriffes Tourne and no other In what Cases and by what meanes a Leete or Franchise may be seised or forfeited or the Lord damnified IN all grants of any Liberties or Franchises there are commonly two conditions one in facto which is alwaies explicite as to pay mony or to do or not to do any other act c. 2.
Condition in lege which is tacite and implicite created by law There are two sorts of conditions in Law by the rule of the common Law 1. The one which is founded upon a Confidence and skill 2. The other without either of these There be 3. causes arising from the violation of trust or confidence and want or privation of skill which induce a forfeiture aswell of offices as of franch ses that is to say 1. Abuser 2. Non user 3. Refuser All which I will but summarily touch and they may all three proceed 1. Either from ignorance 2. Or from wilfulnes Abuser It is said by M. Kitchin that Court Leets are to be forfeited in quo warrante which are kept by ignorant Stewards Some make a doubt of it In Offices which concerne the meere and only private profit of the Lord without dammage to the weale publike the ignorance of a Steward can be no cause of schisme but in Offices concerning administration of justice pro bono publico as a Leet there is no doubt but the Franchise may be forfeited The Steward of thelibertie of the Abbot of Crowland Crompt Iur. so 145. by colour of his libertie of Infang-theefe adjudged a man to death and for this the liberty was seized in the Kings hands Et nulla poena Senescallo For Quicquid Iusticia fecerit de Recordo ignoranter pro defect scientiae non erit proeopunitus 2 Ric. 3. fo 10. A Lord of a Leet was fined forty shillings for that his Steward took an indict ment de morte de home in his Leet which did not belong unto it and so incroached upon the King And also took an indictment of a robberie done out of his franchise in another Countie Brook in finibus pur contempt 49. cites 41. ass p. 30. If the Lord do hold his Leet at any time after the moneth from Easter and Michaelmas it is void by the Statute of 31. E. 3.15 and all presentments void and the Lord shall lose his profits Brook Leet 17. and 21. Non user Assise of Bread and Beere and pillorie and tumbrell are appendant to the view of Franck-pledge where a man hath them by a grant from the King if he doth not keepe pillory and tumbrell hee loseth his office Brooke Quowar 8. Refuser The Abbot of S. Albon having the grant of a Gaol deteyned the prisoners for that he would not bee at the charge to sue out a Commission for their deliverie the King seised the Franchise into his hands 8. Hen. 4.18 A direction for Lords in choosing of their Stewards SIthence the jurisdiction of this ancient Court is lyable upon just cause of for feiture and seisure into the Kings hands it is necessarie that Lords of liberties as well for prevention of their owne inconvenience as for the better governement of the Countrie by due execution of the Law should select choose and appoint out of men treyned up in the studies of the provinciall Lawes of this kingdome such as must have the foure properties of Iethro his counsell Able men such as must bee viri potentes not in strength of body but in courage of minde 2. They must be viri timentes Deum that feare God and not the faces of men he that hath this vertue wants none and he that wants this is open to injustice oppression malice and all other enormious impieties 3. They must be Amantes veritatem it is S. Pauls counsell Ephes 6.14 Stand therefore and your loines gird about with veritie and having on the brestplate of righteousnesse c. 4. They must be abhorrentes avaritiam the roote from whence all evills grow 1 Tim. 6.10 That which as Bracton saith doth inducere cupiditatem when Samuel his sonnes were Iudges over Israel it was a brand upon them They walked not in his waies but turned aside after lucre and tooke rewards and perverted judgement 1 Sam. 8.3 The properties and qualities which a Steward ought to have F Let a describes the office of a Steward and giveth counsell unto Lords of Manours and liberties to provide or elect their Stewards in these words Provideat sibi Dominus de senescallo circumspecto fideli viro provido discreto gratioso humili pudico pacifico modesto qui in legibus consuetudin busque provinciae officio senescaleiae se cognoscat jura Domini sui in omnibus teneri affectet quique subballivos Domini in suis erroribus ambiguis sciat instruere ' docere quique egenis parcere qui nec prece vel pretio velit a justitiae tramite deviare perverse judicare Cujus Officium est Curias tenere Maneriorum de substractationibus consuetudinum servitiorum reddituum Sectarum ad curiam mercata molendina Domini advisus franciplegiorum aliariumque libertatum Domino pertinentium inquirat c. By which Description it is to bee observed that a Steward ought to have a double qualification 1 In Moralibus 2 In judicialibus whereby he must be guided as well in the keeping of Court Barons for the profit of his Lord as for the honour of him in the government of Leets for the good of the Common weale 1 In Moralibus A Steward must bee qualified with these properties before mentioned circumspection fidelitie providence discretion humilitie peace and modestie which may be reduced into these two generalls S. veritie and Industry the one proceeding from the heart the other from the hand his diligence or industry must be tempered with 1 Circumspection 2 Providence 3 Discretion otherwise it may incurre the perill of temeritie and precipitance which commonly prove fatall in all actions Canis festinans caecos parit catulos His veritie must be attended with fidelitie Co. l. 5. Epist humilitie peace and modestie Veritas secum ducit Comites simplicitatem unitatem pacem tandem 2. Iudicialibus and therein he must be attended with foure properties 1 Scientia hee must know himself or be expert in the Lawes and customes of his Countrey and have ability to instruct or direct the Bailiffes and other ministers in dubious things wherein they may erre 2. Misericordia he must spare the poore not rack poore tennants nor grinde their faces hee must not bee outragious in imposing excessive fines in the Leets but as Iudges in other Courts are or ought to be moderate and discreet secundum quantitatem delicti not beyond the demension of the offence for excessive amerciaments are against the law Excessus in re qualibet jure communi reprobatur Coo. li. 11. fo 42. Mercy and truth must meet together righteousnesse and peace must kisse each other Psal 85.10 3 Iustitia the Prince of vertues the faithfull Companion of this life without which no humane societie can subsist Iustice knowes no father mother nor brother Persona non accipit sed Deum imitatur A Steward must put on this Armour And must neither be drawne by price nor prayer neither by lucratotie
for that the offence doth arise upon the person of the offender and ought to be estreated upon his person and not upon the issues of his lands 41 Ed. 3.26 In some cases the distresse may be of another mans goods upon the lands of the amercee As if a man do hold lands of a Leet by the service of Cryer of the Court or the like and is amercied for neglecting of his service A Lord may distreyne the beasts of any other upon the land so holden 47 Edward 3 folio 13.12 Henry 7.15 And the reason for that the offence doth arise ratione tenurae or soli 41 Edward 3.26 Certaine Cautions in the taking of Distresses A Lord cannot distreyn for amerciament in a Leet in any lands seised in the Kings hands for the Kings debt for that the place is priviledged and the right of distresse suspended for that time for as the King cannot bee amercied so by consequence his lands are out of the Iurisdiction of a Leet Bro. Leet 8. and the distresse tortious and so was the opinion of Finchden in the Case of Sudbury Bishop of London upon a Replevin inter Norwiche Manley 47 Edward 3.13 He cannot distreine the Horse of a stranger in the Stable or osterie of the partie amercied nor the garment of another in a Taylors shop where the Taylor is amercied and so was the opinion of Keble 10 Henry 7.21 If upon a distresse taken the amerciament fyne or other duetie bee tendred and satisfaction offered it ought to be accepted Bro. Distresse 8. and in case it be refused and the distreynee put to a Replevin the Lord shall not have retourne For a distresse is but a gage or pledge for a duetie which being offered the Lord ought to deliver the gage A Lord may not distreyne a milstone parcell of a mill nor doores nor windowes nor any thing that is fixt unto or parcell of a freehold 14 Henry 8.25 The distresse ought not to be excessive for excessive distresse is forbidden by the common law 41 Edward 3 folio 26. As for the amerciament of two shillings or such like to take two or three Horses were outragious and excessive The last act or period of proceedings in a Court Leete is afferment AFferement is as much as ponere in certitudinem seu taxare to assesse or taxe derived from the French word The Subject of this Act is called amerciament in latine misericordia and it is described by an ancient writer Glanvill lib. 9. cap. 11 in this wise Est autem misericordia Domini Regis quâ quis per juramentum legalium hominum de vicineto eatenus amerciandus est ne aliquid de suo honorabili contenemento amittat And by the Statutes of Magna Charta cap. 15 and Westm 10.6 Liber homo non amercietur c. nisi per sacramentum parium suorum viz. proborum legalium hominum de vicineto qui facultatum suarum noticiam habeant pleniorem as it is recited by Fleta lib. 1. cap. 48. That is Amerciaments are to be assessed by the oath of equals good and lawfull men of the vicinage or neighbourhood who have the better knowledge of the estate and abilities of the Amercees The parties to this act are the Steward and the Countrey or pares And these pares or probi homines are according to moderne practice chosen at the Leet out of the Iury by the steward to taxe and afferre the amerciaments indifferently not to wrong any for hatred nor to spare any for favour c. which oath by Bracton lib. 3. cap. 1. fo 116. is thus declared Et ad hoc fideliter faciendum speaking before Ad hoc videndum qualiter quis sit amerciandus c. affidabunt amerciatores quod neminem gravabunt per odium nec alicui deferent propter amorem Et quod celabunt ea quae audiverunt 38 Edward 3 fo 3.9 As if one be amercied upon a presentment in a Leete for not repairing a bridge or a highway The manner of entry up on the Court booke and Rolles must bee Ideo in mia et amerciamentum inde afferatur per afferatores in eadem Curia ad tunc electos et juratos ad 20s. Rastall intrat tit trus in Amerciam 2. So that the Steward cannot taxe or afferre an amerciament upon the presentment of a Iury if he doe it is void in law and lyeth not against the partie amerced The Steward as only to record and enroll the Amerciaments afferred and truly and justly to estreate them to the Bailiffe of the Manour to be by him distreyned for and levied for the use and benefit of the Lord. This last Act of Taxation and recording thereof doth determine the judiciall part of a Court leet and after judgement must follow execution wherein the life and vigour of all lawes doe depend The ministeriall part of a Court Leete in the levieing of fines and amerciaments assessed THis part or act hath a double relation 1 To the Lord 2 To the Bayliffe The Court is the Kings but the emergent profits formerly described by two remedies S. 1 Fine 2 Amerciament belongs to the Lord and for that they doe arise out of offences which concerne the King and Common weale the Lord is bound both in Law and conscience not to bee too prone in remitting of them especially in those cases which concerne the King immediately as in his prerogative touching the oath of legiance or immediately in regard of the Common wealth whereof the King is caput et custos as touching fines upon delinquent Officers and Ministers Amerciaments in cases of common Barretors Drunkards false and double Weights and Measures deceits and corruptions in Victuallers Tradesmen and Artificers and such like enormious offences which in their qualitie are exemplary and have generally an interest in the publike calamities of Church and State As also in Amerciaments for not repairing of Bridges Causies Highwayes and many more of that nature hereafter insuing in the second part of this Tract which ratione communis nocumenti deserve no manner of favour or indulgence The best excuse that a Lord can plead for himselfe in such cases of remission of amerciaments is but misericordia And that excuse is taken away by a former act of mercy and moderation in the afferors or equals who being astrict by a solemne oath quod neminem gravabunt c. That they should neither surcharge for hatred nor detract or diminish for favour The law presumes That as they ought so they did assesse them mercifully and after a solemne and judiciall mercy Non opus est extrajudiciali misericordia 2 The second relation concernes the Bailiffe who must be true faithfull and vigilant observing the Cautions before prescribed in levying of distresses Hee must not bee exoculated with common rurall bribes Bacon Cheese c. as that he cannot see a Iury man in his right place to returne nor any goods or catsell to distreine his office is also
8. pence of Coppihold in the same Countie and this by the Statute of 1 R. 3 cap. 4. Stamf. plit Coron li. 2 cap. 24 fo 85 86 87. 2. The second sort are matters here inquirable presentable and punishable For the first it may seeme unnecessary to enquire at the law day of those things which the Court hath not power to correct and punish and which the authoritie of Instices of peace doe daily meet with But there are two reasons to cleare the doubt and approve the inquiry of them 1. The benefit of Escheats of lands and forfeiture of goods and Chattells for upon conviction of any offender in cases of Felonies their lands doe escheat unto the King if they bee holden of him or to the Lord of whom they are holden Saving to the King the waste thereof for a yeare and a day and therefore it is to be inquired what lands tenements and goods the offender hath for they accrew to the King if the Lord hath not a grant of Cattalla felonum by Charter from the King 9 H. 7 fo 23 29. 2. Instice Flemming The second reason Id. from the mouth of a Reverend Iudge who in a speech of his concerning the necessitie of Leets and law-dayes said that a Leet was Schola insigniendi juvenes a Schoole to direct and instruct young men to know the ancient lawes of the Kingdome and to prepare them for greater imployments at greater meetings as the Assises Gaole deliverie and Sessions of the peace The first sort of offences which concerne power of inquirie but not of punition are Treasons Premunire Pettie-treasons and Felonies HIgh Treasons which Glanvill lib. 1 cap. 2 cals Crimen laesae Majest ut de nece vel sedic personae Domini Regis velregni vel exercitus Britton ca. 29 title Tournes de Viscounts giveth directions for inquiring at the Sheriffes Tourne of the mortall enemies of the King or the Queene or their children or of their consenters And long after that by the Statute of 25. Ed. 3 cap. 2 a declaration was made what offences should be adjudged High or Pettie treason If any person doe imagine or compasse the death of our Lord the King or of the Queene or of their eldest sonne and heire It is High treason Crimen laesae Majest by the ancient common law For Princeps censetur una persona cum ipso Rege Or if a man doe violate the Kings companion or the Kings eldest daughter unmarried or the wife of the Kings eldest sonne and heire Or if a man doe levie warre against the King in his Realme or be adherent to the Kings enemies in his Realme giving them aide or comfort there or elsewhere Other Treasons which doe not touch the person of the King so neere IF any counterfeit the great seale privie seale or the money of this Realme Or if any bring false money into this Realme counterfeit to the mony of England knowing it to be false to marchandize or make payment in deceipt of the King and his people If any doe falsly forge or counterfeit any coine of gold or Silver which is not the proper coine of this Realme and is or shall be currant within this Realme If any doe forge or counterfeit the sign mannuall privie signet or privie seale If a man slay the Chancellor Treasurer or the Kings Iustices of the one bench or the other Iustices in Eyre or Iustices of Assise or any other Iustices being in their places doing their offices All those before cited and all ayders procurers and abbetters shall be deemed and adjudged Traitors and shall incurâ—e all paines and for feitures as in cases of High treason is used and ordeyned 1 Mar. ca. 6. If any for wicked lucre or gaine doe clip wash round or file any monie which is or shall be the coine of this Realme or the monie thereof or the coines or monie of another Realme which is or shall be allowed to be currant within this Realme or the Dominions thereof it is high treason 5 Eliz. 11. The forfeiture by the Statute is of goods but of lands only during life and no corruption of blood nor forfeiture of dower It was first declared high Treason 3 H. 5 afterwards abrogated 1 Mar. 1 and revived by this Statute of 5 Eliz. 11. Premünire and Treason FOr the preservation of the dignitie of the imperiall Crowne of England 5 Eliz. c. 1 it was enacted 5 Eliz. ca. 1. That if any person of any estate dignitie or degree soever should by writing ciphring printing or preaching deed or act advisedly and wittingly extoll or set forth the authoritie of the Bishop of Rome used or usurped within this Realme or any the Dominions thereof every such person their abbetters procurers and counsellers being lawfully indicted or presented within one yeare after such offence committed and being lawfully convicted or attainted shall incurre the penaltie of Premunire provided by the Statute of Provision made Anno 16 Rich. 2. And if any person or persons their abbetters or procurers after such conviction and attainder doe eftsoons commit the same offences and be thereof duly convicted and attainted shall incur the paines and forfeitures of high Treason In like danger are they who refuse to take the oath of supremacie prescribed 1 Eliz. 1 which for the first offence is Premunire And if any the persons appointed by this Act to take the said oath doe after the space of three moneths next after the first tender thereof the second time refuse or doe not take and pronounce it shall also be adjudged in the case of high Treason and this Statute requires a publication hereof at the Leete But this Act shall not extend to make any corruption of blood disinherison of any heire forfeiture of any dower nor the prejudice of any right or title of any persons other than the right or title of the offender during his her or their life only Nota the penaltie in a Premunire is described 22 Edward 3.1 and 16 Richard 2.5 to bee ouâ— of the Kings protection to forfeit lands goods and chattels and their bodies to bee taken imprisoned and ransomed at the Kings pleasure But by this Statute of 5 Eliz. 1 It is not lawful to kill any attainted in Premunire Pettie Treason IF any servant kill his or her Master or Mistresse or a man secular or religious killeth his Prelate or Ordinarie to whom he oweth faith and obedience it is pettie treason in them and the abbetters 25 Edward 3 2. If a woman killeth her husband in regard of the subjection and obedience which she oweth to him it is petty treason 19 Henry 6 fol. 47. If a servant after he bee out of service killeth his Master so as it be done out of a prepensed malice whilest he was in service It is pettie treason though not expressâ—ly within the letter of the Statute of 25 Ed. 3. It is pettie treason in a sonne who killeth his mother and he shall be drawne
and hanged and so was the opinion of Thorpe 12 Edward 3 17. where a man killed his mother took Sanctuary and was drawne from thence and convicted Cromp. Iust fo 15. Note that in all Petty Treason Felony is included but not è contra and it was affirmed 22 li. Ass that a pardon of all felonies would servefâ—r Pettâ—e Treason which is the reason that all Petty Treasons are inquireable as felâ—nies in the Tourne and Leet The escheats hereof pertaine to every Lord of his owne fee and the reason is because such Treason doth not touch the King himselfe Felonies ALL Felonies at the Common law are here inquirable as felonies saving the death of a man and Rape which are here to bee inquired as trespasse 7 Henry 6 fo 13. 6 Hen. 7 fo 4 41 Ass plit 30. Of Felonies here inquirable there are these foure severall sorts insuing viz. 1 Such as doe concerne the ademption of Life 2 Or hurt of bodie without privation of Life 3 Or the spoliation and taking away of goods 4 Or the taking away wasteing and consuming of life bodie and goods All privation of Life is comprehended under the generall name of Homicide But as one writes Ex diversa interficientis intentione hoc diversas appellationes causas habet The intention of the Actor doth alter the appellation of the Act. Skeny l. Regiae Majest A learned Writer of the lawes of Scotland doth set forth duo genera homicidâ—i one which is called Murdrum and the second sort which is called simplex homicidium and both are inquiable at the Leete as Bloodshed Murder MVrther is where any of prepensed malice doth kill another feloniously felleo animo whether it be openly or secretly and whether the partie be an English man or any other whatsoever so as he liveth in the Realme under the Kings protection And all homicide which is done in this manner is called murder to this day for the name of murder was never changed but the law doth retaine it continually for the hainousnesse of the crime to put a difference between that and other homicide and as a Civilian writes Quicquid a praecedenti malitia vel ferro vel veneno Cowel instit vel modo quocunque perpetratur illud murdrum dicitur It was the crying scarlet sinne of Caine in the first infancy of the world and hath beene and is so horrid and detestable as that by the Statutes of 2 Edward 3 2 and 14 Edward 3 15 a Charter of pardon was not to be allowed in such a case By the Statute of 13 Richard 2 Stat. 2 c. 1 It was provided that if the charter of the death of a man were alleadged before any Justices and if upon a good inquest of the Visne where the dead was slaine they did finde that it was done by awaite assault or malice prepensed the Charter should be disallowed and further it should bee done as the law commanded Hence it was that a charter of pardon of all felonies will not discharge a Murther without expresse words And here in the dutie and legiance of a Subject I cannot pretermit the remembrance of his now gratious Majesties tender and incomparable care in pursuance of the true intention of those ancient lawes by rejecting and denying all suggestions and suites for pardons in cases of murder rape and such like heinous crimes which to the comfort of all his true and loyall subjects hee hath sufficiently demonstrated by the equall and exemplary distribution of his justice aswell to the tallest Cedars as to the lowest shrubs of his Kingdome Man-slaughter ALL simplex homicidium or Manslaughter are distinguished from Murders by reason they are done suddenly and upon hot blood without malice forethought In ancient times if a man did lye in waite to kill another it was felonie quia voluntas profacto but now exitus in malificiis spectatur non voluntas duntaxat These two are called homicidium voluntarium the first aggravated by the name of Murder ex praemeditato which as Bracton noteth is committed Ex odâ—o vel causa lucri nequiter in Felonia The second in regard of the sudden act not premeditate nor forethought is qualified by the name of Manslaughter and hath the benefit of Clergie in resemblance to the law of Moses who so killed his neighbour ignorantly whom he hated not in times past had the favour to flye unto one of the Cities of refuge Deut 19.4 There are two other sorts of Homicide one ex necessitate in defence of a mans selfe the other ex casu or by misfortune both here inquirable by the common law In the first the necessitie must be so great as that it may be deemed inevitable or else that homicide is not excusable the definition of it is rendred by M. Stamford li. 1 cap. 7. If a man make an affray upon another and the party assaulted doth flie so farre as he can for safeguard of his life so that hee bee driven to a streit beyond which he cannot escape and the other still continue the assaulting of him In this case if he strike and kill the assaultant It is homicide se defendendo But the matter must be specially found upon the Inquisition or Indictment And 2. presidents of such inquisitions are set forth by Master Weste tiâ— Indictments Yet he forfeiteth his goods and must purchase his Charter of pardon for the same by the Statute of Glonc. cap. 9. Homicide casuall or by misfortune or misadventure is defined by Moses the patterne for all Law-makers Dent. 19.5 When a mangoeth into a wood with his neighbour to hew wood and his hand fetcheth a stroke with the Axe to cut downe the tree and the head slippeth from the helve and lighteth upon his neighbour that hedâ—e he shall flee to one of those cities and live So that in this case or the like as throwing a barre or stone or shooting an arrow at a marke or in doing any other lawfull act without an evill intent it is homicide by misadventure and the Actor shall instead of Moses Citie have his refuge to the mercie of his Majesties crowne for a pardon of grace by the Statute of Glone c. 9. as in the case of se defendendo But note as a rule in all unlawfull actions or attempts the event is not excusable as if two or more commit an affray and a third person comes betweene them to keepe the peace and is slaine albeit this accident was without an evill intent yet in regard of the unlawfulnesse of the occasion as the affray contrapacem It is selonie in the manslayer and not misadventure Fitz. tit Coro 180.22 lib. Ass Felonies which doe concerne the hurt dishonour and detriment of the bodie without privation of life Rape IF any man ravish any woman be she widow or maid she not assenting before nor after or if it be done with force she assenting after every such person and the aiders and abetters are in the case
sight of him though he after take him It is fineable according to the quality of the offence Rescue de felon IF any shall presume to rescue and set at liberty by fraud or force any person apprehended or arrested for felonie it is felonie in the rescuer and here inquirable 1 Henry 7.9 * ⎠* The Second sort of Offences which doe concerne the power of a Leet both in inquirie and punishment and are either grounded upon the Common Lawes or the Statute Lawes of this Realme and may be reduced to these severall Branches hereafter following The KINGS Prerogative ALL Suitors and Resiants within the Precinct of a Leet ought to appeare in person and are presentable if they doe absent themselves Chiefe Pledges IF the Capitall or chiefe Pledges of every Decennary viz. the Tething man whose institution and office hath beene before at large described doe not appeare the ancient use of them was to take care that none should come within the Seigniorie or libertie but find pledges of their good abearing If this law were well observed the Justices of peace would not bee troubled with setling and dissetling of persons from parish to parish as now they are Legiance ALL and every male person of the age of 12 yeares and upwards abiding within a Libertie by the space of a yeare and a day who hath not done his suit royall scil taken the oath of Legiance before at large expressed are presentable 18 Edward 2. Every one of that age being a subject borne must be Iuratus in Decennaria Brooke Leet 39. See Canutus Law 19. Lamb. â—râ—h Nos vero praecipimus ut quisque annos ad 12 natus jurejurando fidem det se in posterum tum furto tum furti societate temperaturum All and every person or persons who shall keep or harbour any such youths and do not bring them in to be sworne are presentable Broo. Leet 7. Common Nusances ALL Purprestures are here inquirable The word is not obvious to every countrie capacitie Glanv li. 9 ca. 11. thus defines it Dicitur autem propriè purprestura c. It is properly called Purpresture when any thing is unjustly usurped upon the King as upon the Kings demesnes or in stopping the publike wayes or turning publike waters out of their right course Or when any man shall erect any thing in any Citie upon the Kings street and generally Quoties aliquid sit ad nocumentum Regii tenti vel Regiae viae vel civitatis All Purprestrures are either erigendo or destruendo either in setting up or casting downe something which may tend to a publike annoyance They are commonly made in Lands Woods and waters to the inconvenience of his Majesties leige people by stockes and blockes or levying any Dikes or Hedges or by making or filling up any Dikes If any walls houses pales or hedges be made and erected or beaten and throwne downe or any wayes and paths opened or stopped to the hurt of the people If any waters be turned or stopped or diverted out of their right course or if the common Rivers be corrupted and annoyed by white tawing lime or such like Or if any ditches mounds and Rynes which are the fences of grounds be not duely scoured and cleansed Incroachment on High-wayes IF any incroach upon the Kings high wayes or any carrion or unwholesome thing be cast into the same or in the common streets to the annoyance of the people Bridges c. IF any Bridges or Causeyes be decayed or broken inquiry is to be made of the defects and who ought to repaire them Watering with Hempe c. IF any person do water any Hempe or Flaxe in any river running water streame or brooke or other common pond where beasts doe use to drinke it was and is a popular nusance at the Common Law and inquirable and amerciable at the Leet But by the Statute of 33 H. 8. cap. 17. the partie offending doth forfeit for every time so doing 20. shillings 33 H. 8. c. 17. the one halfe to the partie grieved or any other that will sue for the same forfeiture in any Court of Record Leet or Law-day by action of debt bill plaint information or otherwise and the other moytie to the King As High-wayes must not be incroached upon or annoyed so they must be duely repaired and amended High-wayes THere are two sorts of Highwayes 1 Chimini Majores 2 Chimini minores The Majores are the foure great fosse wayes whereof two extend through the Kingdome in length and two in breadth The lesser wayes are such which leade from Citie to Citie and from one Towne to another per quos mercata vehuntur c. for conveying and carrying of wares and merchandize from market to market and concerning these it was the Law of King Edward Confessor Si quippiam operis ad corum perturbationem erigatar solotenus deponatur chimini more solito reparentur which is agreeable to the common Law at this day And for that the highwayes grew very noysome and tedious to travell in 1 2. Ph. Marca 8. and dangerous to all persons passengers and carriages It was enacted That the Constables and Churchwardens of every parish within this Realme should yearly upon tuesday or wednesday in Easter weeke call together a number of the parishioners and elect two honest persons of the parish to bee surveyers and orderers for one yeare of the workes for amendment of the high wayes in their parish leading to any market towne That the surveyer shall have authoritie to order and direct the persons and carriages which shall be appointed for those workes by their discretion and shall take upon them the execution of their offices upon paine of 20 shillings every one making default That Stewards of every Leet have power to enquire by the oathes of the suitors of all and every the offences that shall bee committed against every point and article of this Statute and to assesse such reasonable fynes and amerciaments as shall be thought meet That the Steward of every Leet shall make estraets indented of all the fynes forfeitures and amerciaments for the defaults presented before him and shall deliver one part figned and sealed by him to the Bailiffe or high Constable of every Hundred Rapelathe or Wapentake where the defaults shall be presented and the other part to the Constables and Churchwardens of the parish wherein the defaults were made the same to bee yearely delivered within sixe weekes after Michaelmas to bee bestowed on the high wayes in the said parishes That the Bayliffe and head Constable shall at least once every yeare betweene the first of March and the last of Aprill make true account and payment of all such summs of money to the Constables and Churchwardens of every such parish or two of them as hee shall have collected upon any the said estreats upon paine to forfeit 40. shillings for every time to be bestowed as aforesaid This Statute by a Latter of 5 Eliz 13.
of the charge doth not once mention those offences but that they were and are offences at the common Law and inquirable and punishable in Tournes and Leets will be very manifest 〈◊〉 Leet so Fitzh in his Court Leet so 86. printed A.D. 1559 after the Statute of 5 Ed. 6. doth charge the inquirie of Forestallers and Regrators And the Statute 5. Ed. 6. doth not abridge any other power or jurisdiction as appeares by a clause in the same Act viz. If any should bee punished by vertue of that Act for any thing therein mentioned he should not otherwise be vexed or put to any paine for that thing It will not be amisse here to take a short survey of the ancient ordinances of this Kingdome which were but declarations of the common Law The old Law intituled Indicium Collistrigii 51 Hen. 51 Hen. 3. provides that inquirie be made de forstallariis who before the due houre did buy any thing contrary to the ordinance of the towne and market Or doe go out of the town to meet with any vendible things and doe buy them extra villam that they might sell them in the towne to Regrators at a dearer rate than they which would have brought it into the Towne That law is seconded with another intituled Statut. de pistoribus braciotaribus c. de Forstallariis being repealed only touching the assise of wine by 21 Iac. by which the King commands that no forestaller should dwell in any towne and renders the reason Qui pauperum est depressor manifesle totius Communitatis patriae publicus inimicus An oppressor of the poore and an enemy of the countrey and hereby the 1 Conviction is a grievous amerciament 2 Iudgement of the Pillorie 3 Incarceration and redemption 4 Abjuration of the Towne And the like against those that should counsell or countenance them and it was to be inquired if any Steward or Bayliffe did for any reward remit the judgement of the pillorie by which it is plaine that Stewards of Leets had power to inquire of this offence By the Statute of 25 Ed. 3 cap. 3 all forestallers of Wines and all other victualls wares and marchandizes that comes to the townes of England by land or by water being attainted at the Kings suit by indictment or in any other manner shall forfeit to the King the things forestalled if they were full bought But if agreement were only made by earnest then the value of the things so forestalled and two yeares imprisonment or more at the Kings will if the buyer had not whereof to pay it By all those lawes it was not perfectly known what person should bee taken for a forestaller c. and therefore a full declaration was made by the latter Statute of 5 Ed. 6.14 These Monopolists of late yeares began to swarme and muster themselves against the Common weale and in time like the frogs of Egypt would have over-run and covered the whole land and without a scarcitie would have brought a dearth amongst us if his now Royall Majestie by his Proclamation orders and directions Dated 28. December 1630 afterwards put in execution against some principall ingrossers of corne and graine by two severall censures and decrees in the high court of Starchamber Mich. 7. Car. had not ministred a timely prevention by which directions a strict inquirie of Forestalles and Regrators is required in a Court Leet There follow severall sorts of fraudes deceipts and conspiracies as well in making selling and uttering of victuall and wares which concerne the alimony and sustenance of the body as also in trades of mercimony and manufacture and in artificers and labourers all which are inquirable at Leets Assize of Bread BRead is the principall of all kinde of victuall it is the staffe of life and the life of the poor in sacred Scripture the commination of famine is denounced by breaking the staffe of bread Levit 26.26 If therefore any Baker shall make and put to sale any bread which is not of good and sufficient weight and assize according to the â—ate and prices of corne and grain in the markets adjoyning or is not wholesome for the bodie of man Brewers and Tiplers IF Brewers and Tiplers doe not keepe and observe the assize of ale and beere and make it good and wholesome for the body of man or do drefuse to suffer their Ale and Beer to be assayed an tasted by the officer on that behalf appointed before they set the same to sale To the end he may be the better directed where to search Every licensed Tipler ought to have a Bush or alestake at his doore Cups Glasses IF any Tiplers sell by glasses cups or dishes or any measure which are not of due assize and lawfully sealed whereby the poore labourer and wayfaring passenger for whose reliefe and comfort such persons are allowed to tipple bee scanted and defrauded By the ancient Law of Iudicium Collist 51. Hen. 3 before mentioned If a Baker or Brewer be convict for not observing the assize of bread and ale the first second and third time he shall bee amerced according to his offence if it bee not over-grievous but if it be grievous and often Si grave fecerit delictum pluries castigari noluerit tunc patiatur judicium corporis scil Pistor collistrigium brasiatrix trubicetum vel castigatorium A Baker to the Pillorie and a brewer to the Tumbrell or other correction c. Butchers c. IF any Butchers Fishmongers Regrators 13 Edw. 3.6 Hostlers Brewers Bakers Pulters or any other sellers of any manner of victuall doe not sell the same for reasonable prices having regard to the prices in the places adjoyning so that the same sellers have moderate gaines and not excessive reasonably to be required according to the distance of the place from whence the said victualls be carried shall pay double for the same to the partie damnified or in default of him to any other that will pursue on this behalfe 13 Ed. 3.6 Victuallers BY the Statute of 13 Ri. 2.18 For victuallers 13 â—â—h 2 1â— it was accorded that they should have reasonable gaines according to the discretion and limitation of the Justices and no more upon paine to be grievously punished according to the discretion of the said Iustices where no paine was limitted in certaine before that time and that Sheriffes Stewards of franchises and all others that have assize of bread and ale and the correction thereof shall take no amerciament or fine for any default touching the assize to spare any bodily punishment In the time of Edw. 4. certain persons for their owne profit did procure Letters Patents of the King to be surveyors and correctors of victuals within certaine Cities Boroughs and other places and by pretence thereof did commit diverse extortions and oppressions to the dammage of the people and derogation of liberties and franchises which Letters Pattents by the Statutes of 12 Edw. 4. ca. 8. were
after him or else for ease of himselfe without huy and cry doth wave or derelinquish therefore called by the Civilians bonaderelicta the goods feloniously stoine by him or any part thereof and slyeth away the King or the Lord is to have it unlesse the owner of them doe make fresh suite after the Felon to attaint him for thoâ— goods which if he doth hee shall have his goods againe notwithstanding the wayving and seizing â—ot note if Goods be stoine and wayved yet the owner may rescise them 20 yeares after if they were not formerly seised by an officer of the King or the Lord of the liberty Fugam fecit IF any upon Indictment of murder before the Coroner be found quod sugam fecit or if any be indicted of Felonic and acquitted and found that he sled he forfeits his goods to the King and the Lord may claime them by Charter but not by prescription The old law Si quis post fugam redierit inno centiam suam purgaverit nihilominus facultates suae apâ—d fiscum remanebunt Exigent IF Exigent bee awarded against one Indicted in Felony he forfeiteth his goods though he be after acquitted of the Felonie the King shall have his goods and the Lord by Charter but not prescription Outlawes ALL persons outlawed in trespasse debt or other personall actions doe forfeit their goods to the King and the Lord may have them by Charter Cleri Convicti ALL Clerks convict men that have the benefit of their Clergie and doe undergo the burning in the hand called by the common law Cauterization doe forfeit their goods notwithstanding By-Lawes ANy By-lawes for the common weale may be made in a Leer and are good and will lye against those that do not consent as to make Cawseyes Highwayes Bridges and such like 44 Ed. 3. so 19. But a By-law to repair a Church binds none but such as do assent vid. Co. 5. f. 63. A Leer may make by-lawes the Lord by prescription may distreyne for the Amerciaments and sell the distresse For the King may so doe and the Leet is the Kings although the Lord hath the profits Brooke Leet 34. Prescription 40. The Statute for view of Franck-pledge made the eighteene yeere of King Edward the Second FIrst you shall say unto us by the oath that you have made if all the Iurors that owe suite to this Court be come and which not And if all the chiefe pledges or their dosens bee come as they ought to come and which not And if all the dosens be in the assize of our Lord the King and which not and who received them And if there be any of the Kings villaines fugative dwelling otherwhere than in the Kings demeanes and of such as be within the Kings demeans and have not .hiden a yeare and a day And if there be any of the Lords villaines in Frankpledge otherwhere than in this Court Of customes and services due to this Court withdrawn how and by whom and in what Baylifes time Of Purprestures made in Lands and Waters to annoyance Of Walles Houses Dikes and Hedges set up or beaten downe to annoyance Of Bounds withdrawne and taken away Of Wayes and Paths opened or stopped Of Waters turned or stopped or brought from their right course Of breakers of Houses and of their receivers Of Petie Larens as of Geese Hens or Sheafes Of I heeves that steale cleathes or of Theevs that doe pilfer cloathes through windows and walls Of such as goe on message for theeves Of Cryes levied and not pursued Of Bloodshed and if frayes made Of escapes of Theeves or Felons Of persons outlawed returned not having the Kings warrant Of Women ravished not presented before the Coroners Of clippers and forgers of Atoney Of Treasure found Of the Assize of Bread and Aleâ—roken Of false measures and of Bushels Gallons Yards and Ells. Of false Ballances and Weights Of such as have double measure and buy by the great and sell by the lesse Of such as continually haunt Tavernes and no man knoweth whereon they doe live Of such as sleepe by day and watch by night and fare well and have nothing Of Cloth-sellers and Curriers of Leather dwelling out of Merchant townes Of such as take Church or Churchyard and after depart without doing that which belongeth thereâ—ntâ— Of persons imprisoned and after let goe without maineprise Of such as take Doves in Winter by doorefals or engins And of all these things you shall doe us to wit by the oath that you have taken A note of the Statutes which are repealed altered or expired since the time wherein M. Kitchin wrote which I thought fit to set down in regard many of them I have observed are frequently given in charge till this time The Statute of Cordweyners 5 Eliz. ca. 8. Repealed 1 Iacob 22. The Statute of Crow-nets for the destruction of Crowes Rookes and Choughes 24 Hen. 8.10 Expired 8 Eliz. 15. The Statute of Hats and Caps 13 Eliz. ca. 19. Expired 39 Eliz. 18. The Statute against Riots 1 Ma. ca. 12. continued 1 Eliz. 16. during the Queens life untill the end of the next Parl ament following Expired yet Riots are in juirable as an offence at the Common Law The Statute of Wynes 7 Ed. 6. ca. 5. Repealed in part 1 Iac. 25. as is before declared The Statute touching Horsbread 31 H. 8.41 Repealed by 22 Iac. Reg. 21. The Statute of Apparell made 24. H 8. ca. 13. Repealed 1 Iac. 25. The Oath of a Constable set forth by M. Kitchen with the additions mentioned in the Statute of 21 Ja. which oath containes a short Epitome of the dâ—tie and office of Constables YOu shall sweare that you shâ—ll well and truly serve our Soveraigne Lord the King in the office of Constable for this yeare now to come you shall see that his Majesties peace be well and truly kept according to your power and you shall arrest all those whom you shall find committing riots debates or affrayes to the breach of the peace you shall endeavour your self according to your knowledge that the Statute of Winton For watch huy and cry and the Statutes made for the punishment of sturdy Beggers Vagabonds Rogâ—â—s and other idle persons comming within your libertiâ— be duely put in execution and that the offenders be duely punished you shall also upon complaint made unto you apprehend all Barrertois and Riotous persons and all Felons and if any of them doe make resistance with force and mâ—ltitude of Malefactors you shall make outcrie and parsue them untill they be taken And you shall looke and search after such persons as use unlawfull games and you shall have regard unto the maintenance of Artillerie And you shall well and truly execute all such proces and precepts as shall be directed unto you from his Majesties Iustices of peace of the Countie or any his Highnesse Iudges Iustices or Officers whatsoever and you shall well and truly present all bloodsheds outcries affraies and rescues happening or
committed within your libertie you shall also present all offenders and offerces against the Statute made in the fourth year of our late Soveraigne Lord King Iames intituled an Act to represse the odious and lothsome sin of drunkennesse and also against the Statute in the first Session of Parliament in the first yeare of his late Majesties raigne intituled an Act to restraine the inordinate haunting and tipling in Innes and Alehouses and other victualling houses with the alterations and additions contained in the said Act of the fourth yeare according to the alterations and additions of the Statute made in the 21. yeare of his said late Majesties raigne intituled an Act for the better repressing of drunkennesse and restraining the inordinate haunting of Inns and Alehouses and other victualling houses And lastly you shall well and truly doe and execute all those and such other things as are incident and doe belong unto your office of Constable for this yeare now to come So help you God FINIS AN EXPLANATION OF The old Oath OF LEGEANCE CONSISTING Of these foure generall Heads 1 What Legeance Ligeantia or Fides is 2 The extent of it by this ancient Oath and the severall parts and branches of the Oath 3 The Modus Reddendi of aids and supplyes to the KING 4 The Royall Office of the KING in the protection of his people confirmed at his Coronation Together with their severall Subdivisions at large LONDON Printed by Richard Badger 1641. AN EXPLANATION OF THE ANCIENT OATH OF LEGEANCE AN Oath is an attestation or calling God to witnesse of the truth touching those things which we say affirme and promise to do upon the holy Evangelists and before a lawfull Magistrate authorized to take such an Oath and that is a legall Oath There are two sorts of Legall Oaths used and practised within this Realme viz. Iuramentum consuctudinarium warranted by the custome of the Realm which is no more than the Common Law 2 Iuramentum Parliamentarium an Oath created and enacted by all the three States as the Oath of Supremacie prescribed 1 Eliz. cap. 1. and the Oath of Allegeance 3 Iacob 4. And no Oath can be imposed upon the Subject but what is enabled by the usage of the Common Law or by an Act of Parliament This ancient Oath was in time very long before the great Charter as in the former tract is remonstrated And bath beene confirmed from time to time in and by Magna Charta So that it hath 〈◊〉 power and vigor both from the common and commitâ—â—â— lawes of this Kingdome The Oath though once before mentioned doth follow viz. Heare yee that I. N. do sweare that from this day forward I will be true and faithfull to our Soveraign Lord the King and his heires and truth and faith beare of life and member and terrene honour And I will neither know nor heare of any ill or dammage intended unto him that I will not defend So help me God This Oath containes a reall protestation of every Subjects dutie to his Soveraigne and expresly declares what Subjection and Obedience ought to be expected from them and implicitely the office of the King towards his people which is protection for it is truly said That protectio trahit subjectionem subjectio protectionem It is cleare that the generall obligation of subjection and duties from the people and the power and prerogatives royall in the Prince are included in the law of God and are part of the Law of Nature whereto all Nations have consented which if I should Illustrate as well I might by innumerable testimonies presidents and examples aswell out of sacred Scriptures and Fathers as out of Heathen Writers Historians and others it would fill up a larger volumne than this Subject would require I am onely to deale with that subjective faith and Legeance which by the provinciall Lawes of this land which are Generalis consuetudo Regni Anglicae is naturally and legally jure haereditario due to the person and royaltie of his sacred Majestie This Legeance is derived to him from Lex aeterna the Morall Law called also the Law of nature part whereof the Law of England is being first written in Tabulis rectae rationis in the heart of man and the people by that Law governed two thousand yeares before it was published and written by Moses and before any judiciall or municipall lawes For the better informing of the vulgar sort of people herein for whom it is most convenient I shall assay to present to the well affected reader some collections to that end whereof I shall as the matter will beare endeavour an orderly prosecution 1 First a generall proposition what Legeance ligeantia or fides is 2 Secondly the extent of it by this ancient Oath and the severall parts and branches of this Oath 3 The Modus reddendi of aides and supplyes 4 The Royall office of the King ad protectionem for the protection of his people sacramentally confirmed at his Coronation 1 Legeance is a true and faithfull obedience of the Subject due to the Soveraigne this Legeance and obedience is a due inseparable from the Subject and is called ligeantia naturalis for as soone as he is borne he oweth by birthright Legeance and obedience to his Soveraigne Ligeantia est vinculum fidei the bond or obligation of faith and loyaltie Master Skency De verborum significatione verbo ligeantia saith That it is derived from the Italian word liga viz. a bond league or obligation As a great Lord Chancellor in the case of postnati said That ligeantia understood sensu currenti in the language of the time is vincusum fidei obedientiae the tye or bond of faith and obedience And he that is borne in any of the Kings dominions and under the Kings obedience is the Kings leige Subject and borne ad fidem Regis That is being the proper word used in the Law of England to be faithfull to the King It extendeth further in all cases of denization which is called ligeantia acquisita where any alien or stranger borne out of the Kings Dominions doth afterwards by any common grant of the King any Act of Parliament or other waies or meanes obtaine the freedome of a Subject within this Land Sometimes the extention of this word is yet larger for he that is an alien born out of the Kings Dominions ad fidem or under the obedience of another King if he dwell within the Kingdome and be protected by the King and his lawes hee is under the Kings Legeance ligatus Regiâ— and the reason is plaine For if to such a person any injury is done either in life member or estate the Law taketh as severe an accompt and inflicteth as severe a punishment upon the offenders in such cases as if the partie injured had beene subditus natus borne within his Majesties dominions Then great reason that such persons having the benefit of naturall borne subjects which is protection from suffering
and without limit from this day forward 2 The terminus a quo you every subject whom the Law injoynes to take this oath 3 The qualities or properties required that is to be true and faithfull 4 Terminus ad quem to whom To our Soveraigne Lord the King and his heires 5 In what manner And faith and truth shall beare of life and member That is as in Calvins case untill the letting out of the last drop of our dearest heart blood And I must adde what is there omitted And terrene honour That is the uttermost of our estate and livelihood 6 The circumstance of place where these duties of Legeance concerning our lives and estate ought to be performed it must bee in all plaees whatsoever without any circumscription for you shall neither know nor heare of any ill or dammage c. that you shall not defend The parts of this oath for the better instruction of the common people I shall summe up in this one proposition which I will presume briefly and succinctly to handle Every subject must be true and faithfull to the King and his heires to the uttermost of his life and fortune or estate 1 The King hath a double capacitie in him one a naturall bodie being descended of the blood Royall of the Realme which is subject to death infirmitie and such like 2 The other is a politike bodie or capacitie so called because it is established by the policie of man and in this capacitie the King is esteemed to be immortall invisible not subject to death infirmitie infancie non-age c. This Legeance is due to the naturall person of the King which is ever accompanied with the politike capacitie that is the Crowne and Kingdome And is not due to the politike capacitie only distinct from his naturall as by divers reasons in Calvins case is at large recited and resolved For if that distinction might take place then would the faith legeance and obedience of every subject due to his Soveraigne be appropriated regimini non regenti to the government of a Kingdome not to him that ruleth or governeth In the time of Edward the second at a Parliament holden at Yorke Hugh la Spencer the sonne being nominated and appointed to serve the King in the office of Chamberlein did draw unto his adherence Hugh Spencer his father and they both usurping upon the Kings Royall power and compassing about to have the sole government of the land to themselves did traiterously contrive a declaratorie writing which they would have compelled the King to signe purporting amongst other mischievous positions That homage and oath of Legeance was more by reason of the Kings crown that is his politike capacitie than by reason of the person of the King whence they inferred these damnable and detestable consequents 1 If the King did not demsne himselfe by reason in the right of his Crowne his leiges were bound by oath to remove him 2 That sithence the King could not be reformed by suite of Law that ought to be done per aspertee by asperitie of Compulsion 3 That his leiges be bound to governe in aide of him and in default of him All which execrable opinions were condemned by two Acts of Parliament one in the 14. yeare of the raigne of the same king Edward the second called Exilinm Hugonis le Despensor patris filiâ— the other An. 1. Ed. 3. cap. 1. which confirmed the banishment of these Spensers Legeance then by law of nature before any judiciall or municipall lawes were recorded or reported is due to the sacred person of the king alone immediately and without any intervallum or moment of time and before the solemnitie of his Coronation and so must remain to him and his heires and entirely without any partnership with him or any intermission in default of him emnimode by all wayes and meanes It is due to his naturall person accompanied with his politike capacitis indistinctly without any partition or separation and this oath is a politicall confirmation of that Legeance It is due to him as he is mixta persona anointed by the hand of the priest as he is supreme head under Christ in all causes and oveâ— all persons aswell Ecclesiasticall as Civill The qualities prescribed by this oath are naturally incident to Legeance veritie and fidelitie to be true and faithfull and they compâ—ehend what before is spoken of faith obedience and subjection faith unto his person obedience to his lawes Subjection to his government or all to all faith subjection and obedience to his person laws and government By the ancient lawes of this Realm this kingdome of England is an absolute Empire and Monarchie consisting of one head which is the king and of a bodie politike which is the common wealth compact and compounded of many and almost infinite severall members all which the law divideth into severall parts the Clergie and the Laietie this Legeance requires a due observancie of all the Morall lawes contained in both Tables of the Decalogue To obey our king in the true and sincere worship of God according to the canonicall discipline of the Church ratified by his regall authoritie To obey him in abandoning all apostasie from Christianitie heresies schisms factions fond and fantastike opinions repugnant to the Orthodox doctrin of the Church To obey him in acknowledging a supremacie in him and a subordinate superiority in his Ministers and Magistrates over his people To obey him in all the rights of distributive and commutative justice in doing good as works of mercy charitie and pietie and eschewing evill that is all sorts of felonies fraud force deceit and all offences whatsoever which derogate from or deprave the peace and government of the Realm The performance of these duties makes a true and faithfull subject The latitude and extent of this veritie and fidelitie from the subject to the Soveraign is twofold The extent this oath first of life and member secondly of terrene honour wherein the prerogative of the king is considerable generally according to the speciall law of nature called by some jus Gentium and stiled by our common law lex rationis the law of reason and more specially according to the municipall lawes and customes of this kingdome The King is pater patria and every subject is bound by the law of nature to hazzard and adventure both life and member for the safetie of the King and Countrey either against privie and traiterous conspiracies civill mutinies and dissentions or hostile Invasions or injust warres or in the execution of legall acts of justice The Poet could say Dulci est pro patria mori a sweet thing it is to die for our Countrey and as sweet a thing it is to die pro patre patria for the father of our Countrey for indeed both come to one There may bee many causes of warre which when they are discussed and resolved by the King and State the justnesse of them is not to be disputed by
De â—odoâ—reddendi according to the true meaning of this ancient oath of Legeance is the difficult question S. Pet. 1.6 2. v. 13. giveth this monition Submit your selves to every ordinance of man for the Lords sake whether is be to the King as supreme vers 14. or unto governours as unto them that are sent by him c. Though by the rule of S. Paul the substance of every princes power is the ordinance of God yet the specification of the circumstances thereto belonging as in regard of places persons Jurisdiction subordination and the rest is an humane ordinance introduced by custome or positive law Hence I will deduce this generall position That all subjects are bound by dutie and legeance to their princes to render to them civill obedience and their dues and duties according to the laws and customes of that kingdome wherein they live then by consequence the subjects of great Britain to their gracious Soveraign according to the Lawes and customes of our Nation To capitulate here all the casuall dues and duties annexed to his prerogative as forfeitures escheates confiscations or such like or wardships mariages primer seisin and many more at large recited and declared by the statute intituled Prarogativa Regis published in the 17 yeare of Ed. 2. Or to make particular rehersall of other ordinary dues as customes aide and such like were cleerly out of the scope of my intention But faithfully to deliver by what ways and means the king may require any extraordinarie aid and supply out of each subjects particular estate or terrene honour hic labor hoc opus est Some not well affected to the constant government of this kingdome The payments of dues and duties most proper by Parliamentary gift would have the kings necessities supplyed by impositions and taxes to bee raised and levied by the kings meer and absolute power without any commitiall consent of peeres and commons others more orthodox if I may so terme it to the happinesse of his Majestie and tranquillitie of the State doe hold and so it hath been declared by ancient modern parliaments that a parliamentarie gift subsidie or supply bee it of what name soever from the subject to the King is most proper and competible with the ancient rule and government of our kingdome The very name of parliament is sacrum quoddam and the nature of it most sublime and so long as the members are in unitie with the head most absolute and illimited The kingdome of England is a most ancient Monarchie under the rule and government of a Supreme Leige Soveraign conform and according to the peculiar lawes and customes of the nation confirmed by severall Parliaments and whereas all other nations as Bracton faith Lib. 1. Cap. 1. were governed by written lawes Sola Anglia usa est in suis finibus jure non scripto consuetudine in en quidem ex non seripto jus venit quod usus comprobavit Sed absurdum non erit leges Anglicanas licet non scriptas leges appellare cum legis vigorem habeat quicquid de consilio consensu magnatum reipublicae communi sponsione authoritate Regis sive principis praecadente juctè fuerit definitum approbatum England only is ruled by a law not written and by custom which by usage hath beene approved and it were absurd because not written not to call them lawes inasmuch as whatsoever by the counsell and consent of the Peers and commons and by the kings royall authoritie shall bee determined and allowed hath the power and vertue of a law Herein we may observe an authentike description of a parliament I cannot passe by the word Quicquid there is some remarkable energie in the generalitie of it that must not goe without a Quisquid Some would have religion and Ecclesiastike persons and do not stick to murmur loudly of it exempt from all parliament power All persons causes subject to Parliament but our Author who wrote in the later time of Hen. 2. well nigh 380 years agone not long after King Iohn had coactedly delivered over his royall Crowne into the hands of the Popes Legat and thereby admitted papall incroachments of jurisdiction in this kingdome although with the common errors of those times he seemed to advance pontisiciall power in Ecclesiasticall causes here cui scil Papae alioqui invictissimi etiam Imperatores Reges cesserunt as it is said in the prologue to Bracton yet he brings all jurisdictions and matters whatsoever with his Quicquid within the cognizance and power of parliament A parliament is the supremest Court of Justice in this kingdome Parliament the supremest court of justice an assembly of the King the Lords and peeres and the Commons of the Realme The word Parliament is a French word and signifies originally as much as colloquium a conference or treatie betweene the King and his Subjects Iâ—â—is great Court the kings of England have ever had authoritatem praecedentem as Bracton notes before aswell in regard of their naturall persons having supremacy and preeminent precedencie over and above all persons as of their politike capacitie and have the sole and only power to call and convene parliaments and to do all other kingly offices And they had and ever have potectatem subsequentem a power to ratifie and confirme such acts and lawes and Statutes whatsoever as are treated and agreed upon by the peeres and commons The king as learned Cambden observes and hath it from Bracton supremam potestatem merum imperium apud nos habet nec in imperii clientela est nec in vestituram ab alio quovis accipit nee prater Deum superiorem agnoscit In short the king is supreme over and above all persons and owneth no superiour but God The parliament is called by writs of summons directed to each peere of the land The calling of the parliament and by writs of summons directed to the Sheriffes of each severall countie And it is called by the advice and consent of the kings councell but note the king of England is armed with divers Councels One which is necessarieto be explained called Commune Concilium in all writs and proceedings and that is the high Court of parliament A second which is grande or magnum concilium which is sometime applyed to the upper house of parliament sometimes out of parliament to the peeres of the realme Lords of parliament Thirdly he hath his legale concilium his judges of the law for law matters The Fourth and last and not the least is the kings privatum concilium his privie Councellors of State The king hath as all the kings of England ever had his sacros and secretos consiliarios his sacred guard of privie Councellors Majorum et sapientissimorum è regno Amongst whom he fitteth in person and moderates their consultations in imitation of the precepts and presidents recorded in holy Scripture Where no counsell is the people fall but
with men learned and Nobly borne He sate himselfe daily in Councell and disposed his affaires of most consequence in his owne Person His Counsellors as one saith were avessaâ—â—es nor principalls He permitted them ability to advise not authority to resolve By this meanes keeping the lore in his owne power as fittest for Princes to doe Hee had a gracious issue of peace ever after attending the remainder of his Raigne and happily lived to traine and adaptate his son and Successor Edward the first Englands Iustinian for the future swaying of his Royall Scepter and afterwards 16. Novem. 1272. dyed his sonne and Successor being then in the holy Land and thirtie yeares of age who being partner of his Fathers experience shewed himselfe in all his actions after capable to command not the REALME onely but also the whole world This renowned King returning from the holy Warres was with Eleanor his Wife crowned at Westminster 15. Aug. 1272. And afterwards 15. Aprilis 3. Regni began his first Parliament at Westminster called West 1. And therein the King did will and command that the peace of holy Church and of the Land bee well kept and maintained in all points and that common right be done to all as well poore as rich And cap. 6. doth provide that no Citie Burrough or Towne nor any man beamerced without reasonable cause and according to the quantity of his trespasse that is to say Every Free-man saving his Free-hold a Merchant saving his Merchandize a Villaine-saving his gainure and that by their Peeres and this is but a reflexe upon the 29. Article of the Great Charter No Free-man shall be taken c. In October 25. Regni after many other Parliaments The King held a Parliament at London and did then fully grant and renew the great Charter made by his Father in the ninth yeare of his Raigne and the 37. Chapters therein contained unto the Peeres and Commons in haec verba and likewise the Charter of the Forest under his great Seale In this Parliament cap. 1. those Charters were confirmed And the King did well that the same should be sent under his Seale as well to his Iustices of the Forest as to others and to all Sheriffes of Shires and to all his other Officers and to all his Cities throughout the Realme together with his writs commanding that they cause the foresaid Charters to be published and to declare to his people that his Highnesse had confirmed them in all points And that his Iustices Sheriffes Majors and other Ministers which under him had the Lawes of the Land to guide should allow the same Charters pleaded before them in judgement in all their points S. the great Charter as the Common Law and the Charter of the Forest for the wealth of the Realme Cap. 2. All judgments given against the points of the Charters should be undon and holden for nought Cap 3. It was enacted that the same Charters should bee sent into every County under the King Seale there to remaine and should be read before the people two times by the yeare Ca. 4. The sentence of examination was to be denounced twice a yeare against the breakers of those Charters Cap. 5. It was enacted That whereas the aydes and taskes given to the King before time towards his Wartâ—s and other businesse of the Subj cts owne grant and good will howsoever they were made might turne to a bondage to them and their heires because they might bee another time found in the Rolles and likewise for the prices taken throughout the Realme by his Ministers That such ayde taskes or prices should not bee drawne into a Custome for any thing that had beene done before be it by Roll or any other president whatsoever that might be found Cap. 6. That from thence forth no such manner of aydes taskes nor prices should be taken by the King but by the common assent of the Realme and for the common profit thereof Ca. 7. The Commons being grieved with the Maletent of wools S. a toll of 40. s. for every sack of Wooll upon their petition the King released it And did grant for him and his heires that no such things should bee taken without their common assent and good will The whole Subject of this Parliament is stiled Mag. Char. Printed 1540. Confirmatio chartarum de libertatibus Anglia forrestae And followes the great sentene e of excommunication called sententia lata super Chartas denounced by Robert Kilwarby Arch-Bishop of Canterbury and the Clergy against the violators of those Charters I find next insuing this sentence in that booke of 1540. the Statute de tallagio non concedendo that no tallage or ayde should be laid or levied by the King or his Heires without the good will and assent of the Arch-Bishops Bishops Earles Barons Knights Burgesses and other Free-men of the Communalty of the Realme Cap. 2. Nothing should be purveyed to the Kings use without the owners consent Cap. 3. Nothing from thence forth should be taken of sacks of Wooll by colour or occasion of Maletent Cap. 4. All Lawes liberties and Customes were againe confirmed and the curse of the Church to be pronounced against the breakers of this Charter This Statute hath no certaine time prefixed of its making But afterwards at a Parliament held at Westminster in Lent 28. Edw. 1. certaine Statutes were made called Articulisuper Chartas whereby the two Charters were more strictly confirmed and injoyned to be read foure times in the yeare by the Sheriffe before the people in full County and those are but explanations upon Mag. Charta The second Chapter being large and wholly made for the reliefe of the Subjects against the Kings Purveyors and Ministers for taking their goods and victualls against their wills at what price they pleased and sometimes without any price The third concerning the Marshals jurisdiction of the Kings House and other good â—nâ—uing Lawes and Sâ—atures which are but Comments or Paraphiases upon that Article of Nullus liber homo c. and doe provide penalties in certaine where none were before I will wade no further into the numerous confirmations of Magna Charta It hath bin ratified since 9. of Henry third above thirtie rimes I may be bold to say it is the Grammar of the fundamentall Lawes of the Land By which all other Lawes are to be construed It is the lydius lapis of the Law It is the syse and Standard by which all our Nationall Lawes must be assayed and tryed Those are the Lawes which the Kings of England at their Coronations have sworne to maintaine and to execute Iustice to the people according to the Lawes and thereby to protect their subjects No Acts of Parliament are so wisely contrived and interwoven with reason and judgment but some sonnes of Beliall will arte vel ingenio strive and compasse to elude and subvert them At the Parliament in the third yeare of his now blessed Majesties Raigne an humble remonstrance
of his Lawes which is twofold 1. By Castigation correction or correption of the Malefactor either by privation of life confâ—â—â—â—ion of goods mulcts and penalties and by 〈◊〉 of libertie and other corporall infliction Secondly by releeving and comforting the offended and greeved Subject with restitution or retaliation according to the nature and quality of the respective causes And this cannot bee performed wholly by himselfe in his owne person but by a subdelegation of Iudges Magistrates and Ministers And them also if he find in any of them any perverse or corrupt aberration from the rules of Iustice. He hath power and will to reprehend and chastise or else who could challenge any freedome of Protection For if the King and His Councell should as some conceive by that forecited clause of Nullus lâ—ber homo c. bee abridged from hearing and examining complaints either in causes of extraordinary consequence or against persons of greatest eminence I meane not every cause that may be regulated by ordinary Iurisdiction Then bootlesse is that royall promise in the great Charter Nulli negabimus aut differemus Iustitiam c. Then must hee needs violate his solemne oath and vow at his Coronation faciam fieri Iustitiam c. His eares must be therefore open to the crie of the poore the fatherlesse and oppressed or else he declineth the true properties of his Vicegerency under God who is refugium pauperi Psalm 99. The LORD will bee a defence for the oppressed even a refuge in the due time of trouble This Princely office of Protection is lively described in the 72. Psalme made upon Salomon Give thy Iudgement O God unto the King and thy righteousnesse unto the Kings sonne verse 2. Then shall hee judge the people according to right and defend the poore verse 4. Hee shall keepe the simple folke by their right defend the Children of the poore and punish the wrong doer Here is his Iustice of Consolation to the oppressed His Iustice of Castigation to the oppressor To that heavenly Poem of the Psalmist some allusion hath bin by an earthly Poet Protegit insontes castigat jure nocentes Defendit totum sub ditione gregem So much of his Iustice BY the other prop or pillar of his Imperiall Crowne S. his mercy the King hath 1. Potestatem remittendi 2. Potestatem dispensandi 1. A power of remission or pardon 2. A power of dispensation and both in imitation of the sacred deity of Heaven whose immediate Minister and Lievtenant the King is upon earth within his owne dominions In the old Law Moses by Gods direction did appoint unto the Children of Israel Cities of refuge as so many Sanctuaries of Mercy whether the ignorant man slayer who hated not his neighbour in times past as also the casuall homicide might flee and live But if a man hated his neighbour laid waite for him rose up against him and smote him that hee dyed and fled unto any of those Cities Then the Elders or Magistrates of the Cutie should send and fetch him thence that he might dye by the hand of the avenger Deut. ca. 19. ver 3 4 5 11 12. In this Island were heretofore Sanctuaries places of refuge for such offenders to whom the Law intended Mercy and these were in use many hundred yeares but in this last Century they were abridged by the Statute of 1. Iacobi 25. So much of all Statutes as concerne Sanctuaries or ordering or governing of Persons in Sanctuary were repealed and made utterly voyd Besides the refuge of Sanctuaries The mercie of the Law in many cases as homicide in heat of bloud without prepensed malice theft and such like did afford the benefit of Clergie And it doth at this time in a forme different from former times For now in stead of delivering the Malefactor over to the Ordinary to purge himselfe hee is admirted to read before the secular Iudge And if the Ordinary or his Deputie pronounce legit ut Clericus Then is hee to be discharged with a stigmaticall brand in his hand as a warning to come there no more and he forfeiâ—th his goods only If non legit were pronounced Then is the offenâ—â—â— to suffer death for his transgression But this kinde of Mercy is not absolute but conditionall The most perfect mercy as from God so next under him from the King is Pardon which is a French word signifying as much as pax venia or gratia and is used in the common-Common-Law for the remitting or forgiving of a fâ—lorious crime or other offence And it is twofold 1. Ex gratia Regis of the Kings mâ—ere grace and Clemency 2. Per cursum Legis by the course of Lawes that is according to the ancient Lawes and Customes of the kingdome Pardon of grace is againe threefold 1. Parliamentary which is called free and generall granted upon the happy close and solution of a successefull meeting of the three States The common good and benefit whereof is well and sensibly knowne to all His Majusties loving and obedient Subjects and this kinde of pardon is pleadable at all times 2. Vpon the KINGS Coronation or other grand and extraordinary solemnity But whosoever will reape the fruit hereof must at some charge within one yeare and a day sueit forth under the Kings great Seale Or else he is utterly debarred of it These two sorts of pardons are ex generali gratia to all that are not excepted therein and will take hold of the benefit thereof 3. A pardon ex speciali gratia is that which the King in some speciall regard of the person his merits and future hopes of good service or other Circumstances or in consideration upon some intelligence of the fact or manner of the conviction by any corrupt malicious or illegall proceedings doth extend and afford upon his absolute Prerogative and power And it is so far from violation that it well stands with the observation of his oath 2. Pardon by course of Law is that which the Law in equity vouchsafeth for a light offence as homicide casuall His power of dispensation is a temporary qualification of the rigor of particular lawes emollit non tollit legem as one saith It doth mollifie not nullifie a Law And as the Civill Law hath it Ille qui dispensat non tollit legem sed ex causa in certapersona vel ad tempus remittit Et dispensatio quandoque est necessaria Panorunt super decret capit proposuit Hee that doth dispence with a Law doth not abrogate the Law but for some certaine cause in respect of persons or times doth remit the rigor And dispenlation sometimes is very necessary Positive Lawes are but leges temporis if so Then are they dispensable according to the necessity of times or occasions The rigid Pharisees taxing the Disciples of Christ for that being an hungred they did upon the Sabbath Day begin to plucke the eares of Corne and to eate Our Saviour puts them two cases by way of
Law no need of Oathes for the administation of Law For in the first age in a long time after the deluge there was no oath heard of In the second age of the world As there was confusion of languages So there was of all other things All things were in common Noe distinctions of Dominions Possessions Inheritances by partitions Virgil. Geo. 1 Lotts and boundaries Nesignare quidem aut partiri limite Campum Fas erat Hence Confusion bred Contention and might controlled right Nimrod then began to be a mighty one in the earth Hee was a mighty hunter before the Lord and was the first Monarch who usurped power without lawes From this confused generation God calleth Abraham and gives him this charge Get. cap. 12. v. 1.24 Get thee out of thy Countrey and from thy kindred and from thy fathers house unto a land that I will shew thee And I will blesse thee and make thy name great And thou shalt be a blessing c So Abraham departed as the Lord had spoken unto him And Lot went with him They had not long dwelt together buetheir substance increased and the land was not able to beare them As riches increased so the right of property or meum et tuum began to be narrowly pryed into and hath since begotten all civill differencies and consequently all civill lawes for discussing and deciding of differencies betweene man and man There was civill dissention betweene the heards-men of Abraham and Lot and certainely it was about their substance To redresse this growing mischeife Abraham bethinkes himselfe of a partition And to prevent a division of minde descends to a division of meanes And though Vnkle unto and elder than Lot begins to stoope first in this wise Let there he no strife I pray thee betweene thee and mee and betweene thy heards-men and my heardsmen for we are brethren is not the whole land before thee Separate thy selfe I pray thee from mee c. And Abraham gave Lot the benefit of election of the land to take either the right hand or the left hand which was an example of division of possessions and distinguishing right of property for future ages As God had promised to Abraham that His seed should be in nuÌ„ber as the starres of Heaven so did his generations increase and multiply With multiplications of families Sinnes and Iniquities were also in aboundance multiplyed All sorts of people both good and bad grew up together Force and Fraud inlarged their dominions Esau was a cunning hunter a man of the field And Iacob was a plaine man dwelling in Tents Iacob had Ioseph a good sonne And so he had his Simeon Levi who troubled him Gen. 34. instruments of cruelty in their habitations Gen. ca. 49. Ioseph had one Reuben to his brother But all the rest envied hated him and conspired against him At length Iacob and Ioseph in fullnesse of yeares die From the tribe of Levi Moses is raised and preserved in an Arke of Bulrushes from the tiranny of Pharaoh to be a Law-giver a Prophet and a cheife Ruler amongst the children of Israel Prudentissimus Legislator Iustissimus Princeps ac Propheta maximus In the meane time the Isralites doe grieviously suffer under the tirannicall oppressions and impositions of Pharaoh and Moses is sent with the assistance of Aaron to deliver them After whose miraculous deliverance by the overthrow of Pharaoh and his host in the red sea Moses and the Israelites having sung praises unto God erected an Altar in memorial of their bl ssed deliverance Moses disposeth himselfe to a setled government of the people And hee sate to judge And the people stood by Moses from the morning to the evening The first Institution and Subordination by Moses IN this course of Iudicature Moses was much â—â—combred and over-charged with variety and multitude of causes which Iethro his father in law observing doth gently admonish him in this wise The thing that thou dost doe is not good Thou wilt surely weare away both thou and this people that is with thee thou art not able to performe it of thy selfe alone And then doth Counsell him for the ease of himselfe and the people to elect subordinate officers Thou shalt provide out of all the people able men Such as feare God Exod. 18.2 men of truth hating covetous nesse And place such over them to be rulers over thousands of hundreds of fifties of tens And let them judge the people at all seasons c. In pursuit of this grave advice Moses accordingly did choose able men out of all Israel and made theÌ„ heads over the people rulers over thousands rulers over hundreds rulers over fifties rulers oftens they judged the people at all seasons the hard causes they brought unto Moses but every smal matter they judged themselves Thus Moses upon consultation with God having performed and put this holy Counsell in practice His incomprehensible Deity vouchsafed the honouring of Moses with his own presence upon Mount Sinai And therewith His immediate voice proclaimed the mora Law Containing all the grounds of Equity and Iustice and gave them unto him ingraven in two tables of stone The first promulgation of Lawes and the beginning of Legall Oathes for administration of Iustice AS Moses received them from God so in discharge of his sacred function he faithfully injoyned them unto the people And as falshood and fraud increased Soe for avoiding and discovery thereof and for true execution of Iustice Heb. 6.16 As also to put an end to strife and controversie The ministration of legall Oathes began to grow in use And not long after the receiving of the Decalogue by that great Prince and Prophet It was one of his first Lawes given in charge unto the people If a man deliver unto his neighbour an Asseâ—or an Oxe or a Sheepe or any beast to keepe And it die or be hurt or be driven away no man seing it Then shall an Oath of the Lord be betweene them both that hee hath not put his hand to his neighbours goods and the owner of it shall accept thereof c. By this it is evident that Moses from Gods mouth and by inspiration of his holy Spirit was the first personall Legislator in the world and the first distributer of Iustice by subordination of Rulers and Magistrates and the onely patterne for all succeeding Princes which moved Eusebius to say A Deo igitur Lex originem habet Et eam mortalium omnium primus Moses Hebraeis constituit Quae caeteris deinceps hominibus condendarum Legum haùd dubiò exemplar fuit The first imitation of Moses in this Kingdome by King Alfred THat Moses was a Patterne and Exemplar of making lawes and managing of them by inferior Ministers in this our ancient and famous Island of Great Britaine renowned in the constant succession and preservation of her lawes notwithstanding the permutation and change of goverment by the Conquest and rule of severall
nations may manifestly appeare by that which followes King Alfred who began to raigne in this Island Anno Christi 872. the best lettered Prince that was in those times began his lawes with Loquutus est Dominus ad Mosem hos sermones dicens Ego sum Dominus Deus tuus c. And so recites the 10. Commandements given by Almighty God upon Mount Sinai And then proceeds with the most materiall lawes mentioned in the 21.22 and 23 Chap. of Exodus which hee thought to be most apt and competible for the government of his kingdome closing it up with Haec easunt jura quae rerum omnium praepotens Deus ipse Mosi custodienda proposuit c. And then concludes with Has ego Aluredus Rex Sanctiones in unum collegi aâ—que easdem literis mandavi Quarum bonam certe partem Majores nostri religiosè coluerunt Multa etiam mihi digna v. dentur quae a nobis hac etiam aetate pari religione obscrventur Nonnullatamen torum ex consulto Patrum partim antiquanda partim renovanda curavimus c. I King Alfred have collected these lawes into one body and have caused them to be written whereof truly a good part our Ancestors did religiously regard or obey And many of them doe seeme worthy unto mee That they should be with the like religion in this age or time observed yet some of them by the advice of our grave men our Fathers wee have taken care partly to antiquate and partly to revive or renew Which in the language of succeeding times was as much as if he had said Some of them by the advice of our Parliament wee have thought good partly to repeale and partly to coptinue After this the good young King doubtlesse Non sine consulto Patrum doth proceed and culles out and confirmes certaine lawes and sanctions of King Inas Offa the King of the Mercians and Ethelbert the first King that ever received Baptisme here in England The first division of this kingdome by Alfred into Counties Hundreds and Tythings THis blessed Prince the division of his kingdome being confounded by meanes of the then late distracted Heptarchy having made league with Guthrunus the Dane and thereby possessed himselfe of the entierty of the Realme and being sole Monarch thereof did in imitation of Iethro his Counsell to Moses subdivide and distribute the government of the land into severall partes And did first reduce it into Satrapias which we now cal shires or Counties Centurias now called hundreds Decurias now lalled tythings which at that time in the infancy of of this sub rdination consisted only often men But in succeeding ages grew more populous and are not confined in number of persons though it still retaine the same appellation Of those ten persons proscribed to their decurie or tythings Every one was to be a fidejussor or pledge one for another And if any one received losse the rest were to make recompence for it Hence it was that nine of them were called ingenui fidejussores which we in the title of our Leets call Franciplegii And the Tenth was called Decurio which continues in the west-terne parts by the name of tething man in other places called vadem primarium et praecipium in Kent called Borsholder that is to say a cheife pledge in Yorkshire called Tenteutale The appointment of Officers and making Lawes for the better ordering of the Kingdome THis mirrour of Princes having thus ordered his Kingdome did set over every Shire a Senator and a Greve which the Normans afterwards called Comes and Vicecomes and our later ages an Earle and Sheriffe Over every Century an officer called a Constable and every Decury a chiefe pledge or tethingman And did decree that every man of free condition liber homo should bee of a certaine Handred or Tything out of which hee was not to remove without securitie After hee had thus ordained a law for the locall setling of his Subjects that they might bee knowne and called to account by the certaintie of their abode upon all occasions of suspicion or accusation for any crime or misdemeanour Then he provided good and wholesome lawes for the better avoiding of rapines thefts murthers or any crimes whatsoever as also for the securing of the persons and estates of his Subjects and for the better rule and governement of them in the place of their resiance amongst which I finde one Law cited by that noble and ever memorable Antiquarie Cambd. 〈◊〉 fo 57. Quod si quis delicti alicujus insimularetur statim ex centuria decima exhiberet qui eum vadarenturâ— Sin istiusmodi vadem non repereret legum severitatem horreret Si quis verò reus ante vadationem velpost transfugeret Omnes ex Centuria decima Regis mulctam incurrerent If a man were accused of any offence hee should presently out of the Hundred and tything tender such as should be pledges or baile for him but if hee could not finde such baile hee should then dread the severity of the Law which I conceive to be according to the moderne law Imprisonment But if any person accused either before pledges or after should flye away all the men and inhabitants of the tything and hundred should incur the Kings mulct that is be amerced to be in misericordiam Regis at the Kings mercy The fruit and effect of this law is worth observation what good redounded to the Common weale in those times For saith the Author Hoc commento pacem infudit provinciae ut per publicos aggeres ubi semitae per quadrivium finduntur armillas aureas juberet suspendi Quae viantium aviditatem rideret dum non esset qui eas abriperet By this devise he made such peace in the whole Country that he caused certaine golden bracelets to be hanged upon publike batches or hillocks at every crosse way which might as it were deride the aviditie of passengers sithence there were none that durst take them away It is no doubt but this Law or Ordinance doth not only in part retaine a vigor and being at the common Law but hath given light to many statutes to win force of great consequence As to that of the Statute of Winton 23 Adward 1. inquirable at Leets by which it was enacted That cries should be solemnly made in all Counties Hundreds Markets Faires and all other places where great resort of people is so that none should excuse himselfe of ignorance that from thence forth every country be so well kept that immediately upon such robberies and felonies committed fresh suite be made from towne to towne and from countrey to countrey c. And after that the felony or robberie be done the countrey shall have no longer space than fortie dayes within which it shall behoove them to agree for the robberie or offence or else that they will ans wer for the bodies of the offenders But albeit the Statute be generall and no mention made
they might not be ignorant of the things there published or given in charge whereby they were to be governed and this was called Suite Reall by reason of their allegiance unto which they were sworne to be true and faithfull to the King c. Afterwards it seemed to be too great a thing for the Sheriffe to performe all in his owne person whereupon Hundreds were ordained and divided out of the Counties and in every Hundred was appointed a Conservator of the peace called a Constable and after Boroughs were made and ordained and within every of them a pettie Constable and in some places a Boroughead according to the diversitie of the languag for that this land had been inhabited by persons of divers Nations as Britanes Saxons Danes and Normans So that the diversitie of termes and appellations came by the diversitie of Languages That the Hundreds and Boroughes did resort unto the Tournes by reason of their allegiance And the Constables and pettie Constables did there present the defaults of offenders but afterwards upon consideration had of the great trouble which the people sustained in travelling to the Sheriffs Tourn Leets or View of Franckpledge were granted unto Lords of Manours within certaine precincts to reforme all manner of defaults there By all which it is plaine that Leets had their derivation both in nature and power out of the Sheriffes Tourne and were purchased for the ease of the people by divers Lords Bullens Case Co. li. 7. fo 78. And in diverse places there is a dutie or summe of money payable to the Lord of the Leet by custome in regard he purchased the same for the ease of the resiants and inhabitants to free them from their attendance at the Sheriffes Tourne and also in regard the Lord of the Leet was at every comming of the Iustices in Eyre at his own costs to claime his libertie which dutie is sometimes called Capitagium sometimes Certum Letae and so by other names according to the Custome of severall places So that now by the example of Moses the patterne and president of all Princes and Iudges the particular imitation of K. Alfred and by the practice of times ever since it is most evident that the Iustice of a kingdome cannot be circumscribed within the compasse of a Crown but must receive execution by subordinate officers ministers consequently ther have been and must be subordinate courts of Iudicature and Iustice for the ease both of Soveraign subject amongst which the leet or view of Fanckpledge hath been and is of most special use The most principall uses of this Court doe stand upon these three points 1. To take view of all Franckpledges or Freemen and by inquisition or examination to discover whether every person of the age of 12. years and upwards have a free pledg or fidejussor that they shall keep the Kings peace which with our Ancestors was in great use and esteem but now by desuetude of time is utterly antiquated and only care taken by presentments of Iurors and Officers upon their oathes to find out and punish severall delicts and offences perpetrated within the view and precincts of the Leet proper for the jurisdiction of that Court. 2 To elect and swear all officers and ministers of Iustice who are to attend the service of that meeting as Constables Tethingmen and such others wherin the Steward must be very circumspect and careful of the idoniety of them that they be persons of honesty to execute their office truly without malice affection or partiality 2. Science to know what belongs to their place and what they ought only to do 3. Ability aswel in estate of body that they may diligently attend execute their office upon any occasion and not be negligent or remisse either for impotency of body or indigence in estate 3. The third and principal use which is indeed now most in use s to take all Suit royall that is every person born within the kings dominions is a leige subject and oweth naturall legiance and all male persons of 12. years old ought to take an oath for the demonstration of their naturall legiance which is called legall because the municipal laws have prescribed the order and form of it to be done at the leets and tourns and this natural legiance is absolute pure indefinite is originally due by nature birthright is cal'd alta ligeantia he that oweth this is cald subditus natus The oath is described by Britton c. 29. titulo who wrote in the first yeare of Edw. 1. the effect whereof is You shall swear that from this day forward you shall be true and faithfull to our Soveraign Lord the King and his heires and truth and faith shall bear of life and member and terrene honour And you shall neither know nor heare of any ill or dammage intended unto him that you shall not defend So help you God If antiquitie do make things more venerable as most commonly it doth this oath of natural legiance at the tourn and leet can plead as large prescription of its ancient and constant usage as any one thing in this nation for it was first instituted by K. Arthur at which time the Leet was called Folkmote viz. a meeting of the people and this appellation is retained in London to this day Amongst the Lawes of King Edward the second before the Conquest Lamb. fo 135.136 it it thus exprest Omnes Principes Comites proceres milites lib. homines debent jurare c. in Folkmote similiter omâ—es proceres regni milites lib. homines universi totius regni Britanniae facere debent in pleno Folkmote sidelitatem Domino Regi c. Hanc Legem invenit Arthurus qui quondam fuit inclytissimus Rex Britonum c. Hujus legis authoritate expulit Arthurus Rex Saracenos inimicos a regno c. Three things considerable in the keeping of Tournes and Leetes 1. Time 2. Place 3. Persons THus farre you see the Antiquitie of this Court and the ancient and naturall priviledges incident unto that There be three things or circumstances considerable in the keeping of it 1. Time 2. Place 3. Persons In ancient time the keeping of it was arbitrary at the pleasure of the Lord untill by the great Charter it was restrained to be kept twice a yeare Non aliquis Vicecomes vel ballivus suus faciat turnum suum per hundredum Mag. 〈…〉 ea 35. nisi bis in anno Et non nisi in loco debito et consueto viz. semel post pascha et iterum post festum sancti Michaelis et visus de franci plegio tunc fiat ad illum terminum Sancti Michaelis sine occasione Fiat autem visus de franciplegio sic viz. quod pax nostra teneatur et quod tithring a teneatur integra sicut esse consuevit c. Notwithstanding which restraint divers Sheriffes did afterwards make their Tournes oftentimes in Lent
was continued and the authoritie of supervisors inlarged 5. Eliz 13. for the taking and carrying away of rubbish or the smallest broken stones of any quarrie or quarries within any such parish without licence controllment or impeachment of the owner or owners so much as shall bee deemed necessarie for the amendment of high wayes and in default of any such quarries to digge in any private groundes for any gravell sand or sinder and to gather stones lying upon lands or grounds so as the said digging bee not in the garden house orchard or meadow of any person or persons and under other provisions in the said statute mentioned It is further enacted that the heies fences dikes or hedges next adjoyning on every side to any high or common fairing wayes shall from time to time be diked scoured repaired and kept low and all trees and bushes growing in the high wayes cut downe by the owners of the ground or soile whereby the wayes may be open and the people have the more readie and easie passage in the same If any person shall not doe it he forfeits 10. shillings 18. Eliz. 9. There must bee yearely six dayes used and imployed in the reparation and amendment of the high wayes before the feast of the nativitie of S. Iohn Baptish and knowledge thereof to be given in the Church the next Sunday after Easter and upon the said dayes the parishioners shall endeavour themselves to the mending of the wayes and shall bee chargeable as followeth viz Every person for every plow-land in tillage or pasture within the parish And every other person there keeping a draught or plow shall finde and send at every day and place one Wayne or Cart furnished according to the custome of the Countrey with all necessaries meet to carry things and also two able men with the same upon paine of every draught making default 10 shillings Every other housholder and every cottager and labourer not being an hired servant by the yeare shall by themselves or one sufficient labourer upon every of the said dayes worke there every of the said dayes upon paine every one making default each day twelve pence Every person except such as dwell in London that shall be assessed in subsidie 5 pound in goods or 40 shillings in lands or above and being none of the parties chargeable by any former law but as a cottager shall finde two able men every of the said six dayes to labour in the high wayes Every person having a plow-land in severall parishes shall be chargeable to the making of the wayes where he dwelleth Every person keeping in his or their hands severall plow-lands in severall parishes shall be charged to finde one cart or waine c. furnished for the amendment of the high wayes within each severall parish All occupiers of lands adjoyning to the ground so adjoyning to any such high way where any ditching or scowring should or ought to bee shall from time to time ditch and scoure in his and their ground so adjoyning whereby the water conveyed from the high way over the ground next adjoyning may have passage over the said ground next adjoyning upon paâ—ne for every time for every rod not so ditched and scowred 12 pence If any having any ground adjoyning to any high way leading to any market towne shall cast or scoure any ditch and throw the soyle into the high way and suffer it to lye there by the space of six moneths shall forfeit for every load 12. pence The moitie of the forfeitures by all these three severall Statutes 1 2. Phil. Ma. ca. 8. 5 Bliz. 13. 18 Eliz. 19. shall be to the Church-wardens to bestow upon the ways and Stewards of Leets have power to heare and determine all offences c. Popular Annoyances ALL common or popular Nusances done to diverse and sundry of the Kings Subjects are inquirable as this ancient Court and so are all trespasses at the Common Law being popular Boundaries IF any ancient bounds metes or landmarkes be withdrawne and taken away such as distinguish hundreds parishes tythings Common Common meadowes and common fields to avoid confusion and consequently dissention are here inquirable 18 Edw. 2. Cursed is he that removeth his neighbours land-marke and let all the people say Amen And it is commanded in Deuteron Thou shalt not remove the ancient bounds which thy fathers have made It is to be observed that divisions by lots and boundaries have beene ever held in great esteem in all ages even amongst the Heathens For the taking away of a particular boundary or mete which concernes onely one man an action of trespasse lyeth And so I finde in the Regist fo 107 De petris pro metis positis abstractis Hedge-Breakers IF there be any common breakers of hedges within the Leet who teare up frithes and fences and leave their neighbours ground subject to incursions of Cattell and are a meanes that many trifling actions of trespasse are set on foot to the disquiet of his Majesties Subjects Pound-Breach IF any breake any common pound or pinfold which is Custodia legis to take any distresse out of the same though the distresse be tortious and without cause yet the poundbreach is unlawful for that the cattell were in the custodie of the Law and the owner might have a Replevin If any shall rescue and by force take away any cattell or other thing which is distreyned for any rent amerciament or other cause before it be impounded or in any other safe custodie it is presentable Rescous IF any commit any Rescous within the libertie upon the Sheriffe or his Bailiffes or any the Kings officers in disturbance of them from taking and detaining any person arrested Bloodshed IF any person commit any assault whereby bloodshed doth ensue or doth make any affray or outrage whereby any mutinie or disturbance doth arise amongst the Kings leige people it is popular and presentable 1 R. 3 fo 1. Bro. Presentm 7 Leet 26. Generall Grievances THe subsequent offences will descrve that marke or character in regard they are generally pernicious to the Common-wealth by their fruites and example and are punishable by the common Law Or because they are generally prohibited by Statute Lawes for the good of the publike weale And in the first rancke are the evill members of a State and Realme of which regiment the common Barretor may well be the ringleader Common Barretors IF there be any common Barretors within the libertie they are of both sexes Scoulds Brawlers common malefactors disturbers and disquieters of their neighbours A common Barretor is well discribed Co. li. 8. fo 37. to be a common mover and stirrer up or maintainer of suites quarrells or parties either in court or countrie 1 In Courts of Record or in the Countie Hundred and other inferiour Courts 2 In the Countrey three manner of wayes 1 In disturbance of the peace 2 In taking or deteyning of possessions of houses lands or goods which are in
should permit any inhabitant or townes man other than labourers and handicrafts-men or persons invited by any traveller to continue drinking or tipling in any such house upon paine to forfeit for every such offence to the use of the poore of the parish ten shillings Drunkards ANd afterwards by a Statute of 4. Iac. 5. and intituled 4 Iac. 5. An Act to represse the loath some and odious sinne of Drunkennesse which thereby is rightly described to be the roote and foundation of many other enormious sinnes as bloodshed stabbing murder swearing fornication adulterie and such like to the great dishonour of God and of our nation the overthrow of many good arts and manuall trades the disabling of diverse workemen and the generall impoverishing of many good subjects abusively wasting the good creatures of God It was provided that every person which should be drunke and thereof lawfully convicted should within one weeke after conviction pay 5. shillings to the use of the poore of the parish And upon refusall or neglect or non abilitie to pay it to bee committed to the stockes there to remaine sixe houres and if any person should continue drinking and tipling in any Inne c. in the place where he inhabiteth being duly prooved in such manner as is limited in the act of 1 Iaco. He shall forfeit 3. shillings 4. pence to be levied as the penaltie of drunkennesse and for non-payment to bee committed to the stockes by the space of foure houres That all Constables Churchwardens Headboroughs Tethingmen Aleconners and Side-men shall in their oathes incident to their severall offices bee charged to present the offences contrary to this Statute This Statute appoints a forfeiture of ten shillings upon the Constable or other inferiour officer who shall neglect the correction of a drunkard or levying the penaltie upon him and further gives power to the Court Leet to inquire of and punish all the offences in these two acts so as the presentment be within six moneths after the offence These two Acts by a latter of 21 Iaco. ca. 7. with the alterations and additions therin expressed 21 Jac ca. 7. are to be put in due execution and to continue for ever And whereas proofe of two witnesses was required by the said statutes now the proofe of one should be sufficient That the voluntarie confession of any offender against either of the said Statutes before any person authorized by the said act to minister an oath shall suffice to convince the partie so offending and afterwards the oath of the party so offending and confessing shall be taken and be a sufficient proofe against any other offending at the same time That if any stranger should bee found upon view of his owne confession or proofe of one witnesse to be tipling in any Inne c. hee shall incurre the like penaltie as if he were an inhabitant to be levied and disposed as in the said act of 4 Iac. is expressed That the oath limited by the said Statute of 4. Iac. to be ministred to Constables c. for presenting of offences contrary to the Statute shall be alwayes hereafter inlarged and extend to present all offences done contrary to all these three severall Statutes according to the severall alterations and additions in the same 1 Car. R ca. 4. By the Statute of 1 Car. Regis cap. 4. intituled An Act for the further restraint of tipling in Inns Alehouses and other Victualing houses It is provided that every Alehouse keeper c. which shall permit any persons not there inhabiting to tipple in his house shall incurre the same penaltie and in such manner to be prooved levied and disposed as by the Law of 1 Iac. is appointed for suffering townsmen and inhabitants to tipple in their houses And keepers of Tavernes and such as sell wine in their houses and doe keepe Innes or victualling shall be taken to bee within the said two former Statutes of 1. and 4. Iac. and also within this Statute of 1 Car. ca. 4. 4 Iac. 5. A drunkard convicted the second time 21. Ia. 7. is to be bound with two sureties to the good behaviour from thence forth Every Alehousekeeper which shall be convicted for any offence against any the branches of either of the two former lawes and the meaning of this Statute shall for the space of three yeares after his conviction be utterly disabled to keepe any such Alehouse Who shall bee a drunkard There is no Law or Ordinance so exactly made by the wisedome of a State but the enemie of mankinde and his ministers and members would invent some device and machination to elude it As to that good law against that odious sinne of drunkennesse there is a great disputation growne as if there were need of a new act to interpret it who shall be accounted a drunkard In the opinion of some famous in that facultie none shall be deemed a drunkard unlesse he be so bereaven of his memorie reason sense and vnderstanding that he is not able to knew the difference betweene his head and feet Et pedis capitis quae sint diserim na nesoit But such sophisticall Symposiarchistes must look backe upon that of Isaiah Vae qui consurgitts mane ad ebrietatem sectandam potandum usque ad vesperam ut vino aestueris that wine may inflame them All excesse of drinking vltra necessitatem which doth inflame and begets a distemper and disorder in the ordinary disposition of nature is to be accounted Drunkennesse He that is strenuus in vino and can carry his burden like a brewers Horse is not more excusable than the weake infirme drunkard All the severall sorts and kindes of drunkennesse may bee reduced under two regiments 1 The one sort which drink ad insaniam till they be so mad as that they will fight with a wall or with their owne shadow in the Moone light 2 The other sort which drinke ad delirium till they fall into a sottish and swinish drowsinesse The Psalmist 107. vers 27. describes them by a comparison of ships on the Sea They reele to and fro and stagger like a drunken man and are at their wits end I neede not speake more of them There are many Sermons and Tracts extant in print against them and yet a man may commonly with grief hold severall sorts of them reeling and in conflict with the stones of the streets in the face of the Sunne and passe with impunitie There follow three mischievous members who are publike enemies to the peace and plenty of a Realm one preyes upon the coine the other two upon the corne and victuall of a Common weale Usurie USurers were here inquirable as offenders against the common Law It appeares by Glanvill li. 7. ca. 16. that their goods and all their chattels which they had at the time of their death were to be seized to the Kings use and their heires to be disinherited and their lands to returne to the Lord
any detriment or harme should bee as free from acting and doing any wrong for as they have idem beneficium they must have idem supplicium as the same protection in good actions so the same correction in bad It was Sherley the Frenchmans case who being in amitie and under the protection of King Philip and Queene Mary joyned and conspired with dâ—â—ers subjects of this Realme in treason against the King and Queene and the Indictment concluded contra ligeantiae suae debitum The case of Perkin Warbeck 15. H. 7. and of the Portugall adherents to Doctor Lopes in the 36. yeare of Queen Elizabeth might here bee remembered to this purpose We have seene what Legeance is 2. Branch let us consider the extent of it in its explication by this ancient Oath which I may well terme vinculum vinculi or ligamentum ligaminis That Legeanee Faith or Fealtie which is annexed by birthright is by this Oath solemnly explained attested and confirmed and is called legalis ligeantia established by the wisedome of ancient times and had its begining with the nationall laws of this Island in the time of the Brittons It is true that this oath doth not create the Legeance of a subject but doth demonstrate the fruits of faith and obedience which must ever bee concomitant with subjection For as it was gravely observed in the booke of Post-nati fo 64. Subjectio fides et obedientia must be in a true and lawfull subject of what Nation soever and cannot be severed no more than true faith and charitie in a true Christian And hee that hath these three from his nativitie is ligeus Regis the Kings Leige man Hence I inferre that ligeantia is visibilis and invisibilis visible as to subjection and obedience and invisible as to fidelitie and loyaltie this must bee rooted in the heart the other expressed in the action A man may bee a sâ—â—â—ect borne and actuate an externall obedience yet Cordi nulla sides hee may be disloyall in the heart Therefore the sacred Scripture inhibits the very thoughs of a man against Kings and Princes the Anointed of God Nolite tangere unctos meos he doth not say ne tangite but nolite have not so much as a will to touch mine anointed In cogitatione tua Regiâ—e detrahas deprave not the King even in thy thoughts Many more precepts might I here instance To prevent the misâ—â—ivous events of disloyall imaginations and to confirme the Legeance of the heart and to discover agnes haedis the good from the bad subject the prudent policie of pristine ages invented formes of oathes in most Kingdomes as may be problably conceived In this Island of great Britaine this oath of Legeance was first invented by King Arthur At which time the Leet was called Folkemote viz. a meeting of the people and this appellation is retained in London to this day Amongst the Lawes of King Edward the second before the Conquest it is thus exprest Omnes Principes Comites Proceres Milites liberi homines debent jurare c. in Folkemote fimiliter ownes Proceres Regni Milites liberi homines universi totius Regni Britanniae facere debent in pleno Folkemote fidelitatem Domino Regi c. Hanc legem invenit Arthurus qui quondam fuit inclitissimus Rex Britonum c. Hujus legis authoritate expulit Arthurus Rex Sacacenos inimicos à Regno c. And by that meanes hee did settle and co-unite his whole Kingdome together Ita consolidavit confideravit Regnum Britaniae universum super in unum It is therefore said that Lex ista diu sopita fuit sepulta donec Edgarus Rex Anglorum illam excitavit erexit in lucem illam per totum Regnum firmiter observari pracepit This law was laid in a slumber and forgotten untill King Edgar who is stiled Rex pacificus did revive and bring it to light and commanded a strict observation thereof throughout his Kingdome For during the Heptarchie and untill King Alfred had made the way for setling of a Monarchicall government it could not well take place this oath afterwards greâ— so usefull and advantagious for the absolute goveâ—ment of this Island as that all the Danes who were dispersed in their abode amongst the English and refused to submit to this oath were all upon the Feast of S. Brice put to the sword by the politike directions of King Ethelred and his Councell Hujus legit authoritate Eâ—helreduâ— Rox subâ—to uno codemâ— diâ— per universum Regnum Danos occidit For the same end and purpose as is herein before remembred was that oath of Allegeance justly conceived in the high court of Parliament holden An. tertio Iacobi upon the occasion of that horrid and dreadfull Gunpowder treason as our late learned Soveraign in his monitorie preface to all Christian Princes prefixed to his Apologie for this oath doth averte Horrenda illa prodigiosa conjuratio quae per tormentarii pulveris impetum destinabatur de cujus immanitate nulla unquam aetas conticescat That most horrid and prodigious Gunpowder conspiracie whereof no age will ever be silent And further saith his Majestie in that Apologie Nec in alium finem constitutum est juramentum quam ut inter fideles subditos perfidos proditores discrimen aliquod extaret That this oath of Allegeance was constituted to no other end but to put a difference betweene faithfull subjects and perfidious traitors This later is inlarged in the occasionall particulars but the generall scope thereof is tacitly and implicitly comprised in that other ancient and well digested oath this maine difference stands between them the former oath is confined as topersons time and place the later hath its extention to all persons without any exception There is the like oath used in the civill or Imperiall law called juramentum ligei one of the old another of a new invention cited Lib 3. Summae Hostiensis fo 773. and thus begins Ego T. juro super sancta Dei Evangelia quod ab hac hora ero fidelis contra omnem hominem c. The Civilians distinguish two sorts of oaths Iudiciall and Extrajudiciall And their oath of juramentum ligei vel fidelitatis they ranke in the number of extrajudiciall oathes But our ancient oath of Legeance is and well may bee accounted in the judiciall number and my reason is whatsoever oath is administred in a Court of Record as the Leet and before a judge of Record as the Steward is and according to the prescript forme of our common Law is judiciall whatsoever oath is administred praeter legem and not according to the precise rule of Law is extrajudiciall This oath is not so administred but juxta legem normam legis and therefore is not extrajudiciall But why doe I endeavour to light a candle at noone or to explaine that which is plaine enough in it selfe 1 First for the time it is indefinite
every private person The end of all warre should be peace bellum geritur ut pax acquir atur 1 It is just cause of warre when publike negotiation and commerce is interrupted or disturbed and for recoverie of things wrongfully and by force taken fiom us by forraigne enemies 2 Or if any shall goe about to usurp upon the Kings right of dominion in any of his kingdoms It is just cause of warre After that David by Gods direction went up to Hebron and was anointed king over the house of Iudah upon the death of Saul he maintained a long warre against Ishbosheth the sonne of Saul for usurping the kingdome of Israel 2 Sam. 2. The revenge of an injurie or disgrace dispitefully done either to a Prince or to his Embassadors is likewise a good cause of warre when Naash the king of the children of Ammon dyed and Hanun his sonne succeeded in his stead David sent messengers to comfort him upon the death of his father their entertainment was not suitable to their errand Hanun by the advice of his Princes tooke Davids servants and shaved them and cut off their garments in the midst a natibus usâ—â— ad pedes and so sent them away For this great disgrace and abuse the text faith grandem contumeliam sustinuerunt David did justly wage battell against the king of the Ammonites Chro. 1.19 He did the like against Sheba the sonne of Bochri a man of Belial for blowing a Trumpet and solliciting the men of Israel to revolt from David to him Samuell 2. chapter 20. â—â—â—y other particulars might be here instanced Next how farre the preeminence of a king as to life and member is to be considâ—red Life and member considerable by the common and statute lawes specially by the common and Stature lawes of this kingdome by the common and positive lawes of England The subjects are bound by their legeance to go with the king and by the Commandement of the king in his wars aswell within the Realme as without and this doth copiously appeare by severall statutes which seeme to bee but declarative of the common law as 1 Ed. 3. cap. 7. which mentions the conveyance of souldiers into Scotland Gasconie or elsewhere 18. Hen. 6. cap. 19. which maketh it felonie If any Souldier retained to serve the King in his wars doth not goe with or doe depart from his Captaine without licence the preamble of the Statute tels us that the Souldier so doing did as much as in them was decay the honour and reverence of the king And by the Statute of 7. Hen. 7. cap. 1. Forasmuch as the offence of departing or not going did stretch to the hurt and jeopardie of the king the nobles of the Realme and all the Common weale thereof therefore he or they so offending should not injoy the benefit of Clergie By the Statute 11. Hen. 7. cap. 1. It is expressed that the subjects of this Realme are by reason of their allegeance bound to serve the Prince from the time being in his wars for the defence of him and the land against every rebellion power and might reard against him either within the land or without and this statute together with some others were adjudged Trin. 43. Eliza. to be perpetuall acts and not transitorie for the kings time only wherein they were made As peace is the true end of warre so peace must be preserved that warre may be avoided In the times of peace there must bee preparations for warre by causing musters and martiall meetings to be assembled at times convenient And therein the Lievtenants their Deputies of each severall Countie with Muster-masters and other subalterne officers have a speciall interest of imployment and therefore provision was made 4. 5. P. M. for the better ordering of Musters Captaines and souldiers In the time of peace the common and municipall law of this kingdome provides for suppressing of all rebellions insurrections and rietous assemblies To which end the king commits the custodie of each countie to an officer very ancient with us called a Sheriffe who for the service of the king and peace of the countrey hath power to raise the power of his countie And every subject is bound to attend him as the kings deputie in causes of publike service warranted by the lawes and this officer is to dwell in his proper person within his Baylywicke that he may the more readily attend the kings service The second point is terrene honour Terrene honour what it is and herein I must walke warily passibus aquis First must be determined what is meant by terrene honour Some would have it to be the outward worship and ceremoniall honour that wee can doe in this world to the king next to the service of God If that were only intended by these words it were but a shadow in regard of substance for in devoting our life and blood is comprehended the highest pitch and streyne of honour that might be Our Saviour Christ his words Matth. 6.25 Is not life more worth than meate and the body than raiment will fully satisfie us that the life of man is above all worldly riches and honours and therefore something else must be conceived out of these words more than a shadow or ceremonie By the first commandement of the second table in the subdivision of the persons to whom honor is due there is in the opinion of many Divines a kind of particular honor or esteem to be ascribed to a man who is more wealthy than his neighbour in regard of the talent of terrene riches wherewith God hath endowed him and thereby enabled him to supply the King and the common weal by rendring his respective dues and duties unto them in a larger proportion than other persons who are inferiour in their worldly meanes Dat census honores Then sithence all riches wealth and substance are called terrene quiae terris terrenis accrescant because they proceed and have their being out of earth and earthly things and are the causes of particular honour and esteem and of distinguishing the degrees of men as husbandmen Yeomen Gentlemen Esquires and the like and also of cradesmen both of Merchandize and manufacture according to the customes of this Kingdome It will follow by good consequence that as the King is to bee honoured and obeyed with life and member so with earthly substance according to the demension thereof and the degree of each mans earthly honour Saint Paul in the generall cleares this point of prerogative jure divino Romans 13. Omnis anima potestatibus sublimieribus subdita sit c. Let every soule bee subject to the higher power For there is no power but of God verse 2. whosoever therefore resisteth the power resisteth the ordinance of God And the Apostle pursues it with Ideo necessitate subditi estote c. verse 5. Wherefore yee must needes bee subject not only for wrath but also for conscience sake Verse 6. For this cause pay
you tribute also For they are Gods Ministers attending continually upon this verything Verse seven Reddite ergo Render therefore to all their dues tribute to whome tribute is due custome to whome custome feare to whome feare honour to whome honour By this text mee thinkes the verie words terrene honour is sufficiently explained in the generall word debita dues specified in the particular words tribute custome c. One thing more is worthy consideration upon that of Romans 13. the generalitie of the Apostolicall edict Omnis anima subdita sit c. No person either of Clergie or Laietie is here excepted Though Bellarmine and other Romish Champions would have bona clerici tam Ecclesiastica quam sacuularia the goods of an Ecclesiasticall man as well spirituall astemporall to be free from tribute unto secular princes yet by their favour both by the law of God and the law of nations and then by our common law no man doubts it all Ecclesiasticall persons as they make a part of the common wealth are subject to their prince aswell in their secular goods whether they be patrimonialia seu mobilia without any manner of exemption nay such goods as we call Ecclesiasticall being within the dominion of the prince who hath a generall charg of conserving all subjects goods ought to be charged with necessary dues and duties to the king For if they be as they are upon judgements liable for the payment of debts to particular persons then a fortiori to the king for tributes taxes and subsidies And great reason for they have the same protection with some more priviledge and therefore ought to acknowledge the same subjection due to him To adde something more to terrene honour and the explanation thereof it must signisie so much as the first word of the fift Commandement implies Honor a patrem c. It is received amongst all Divines that under the names of patris matris are meant not only our naturall but our civill parents as Kings and Princes and others constituted in authoritie under them and by the word Honour is not intended a bare outward respect but reverence attended with feare honor bene faciendi timor male agendi This word honour doth first include all those duties which wee own not onely to our naturall parents but to our prince who is Pater civilis and the duties are respectively these viz. love observance worship obedience aide and supply in relieving their necessities and all this must be done corde ore opere in thought word and deed The second dutie to pay their dues unto their princes willingly and freely without discontentment tribute to whom tribute c. and what ever payment else is necessarie for the maintenance of their estate partly that they may be able to represse enemies and rebels and partly that having sufficient maintenance from the people they may not be distracted but bend their whole indeavour to the good governement and protection of their Subjects S. Ambrose commenting upon that 13. to the Romanes citing the words of our Saviour Christ in S. Matthew ca. 22. Reddite que sunt Caesarts Caesari Give unto Caesar that which is Caesars doth interre Huic ergo viz. Principi subjtetends sunt sicut Deo cujus subjectionis probatio hac est cum illi pendunt tributa vel faith he a little before quae dicuntur siscalia Therefore the people must be subuject unto their prince as unto God The proofe or badge or cognizance of our subjection is that we pay tribute or such things or duties as are for the supply of the kings treasurie customes tributes subsidies and all other dues and duties are therefore rendered unto the prince as a token and argument of subjection whereby his subjects testifie that they are truly thankfull for the protection which they receive from the powers which are from God A moderne writer upon the Pandects of the Law of Nations Fulbeck cap. 10. maintaines and well he may that in the law of tributes subsidies and prerogatives Royall all nations have consented And as saith he it behoveth every Monarch to have a watchfull care of his subjects good and bend the force of his minde to the preservation and maintenance of their safetie and good estate So subjects should not grudg to pay unto them tributes and subsidies and other publike impositions that all necessarie charges may bee substantially defrayed all convenient designes produced into act and condignely executed By an Act of parliament 1 Elizab. cap. 3. touching the recognizing of Queene Elizabeth to the Crowne Stat 1 Eliz. It is there declared by all her subjects representing the three estates of this Realm that they as thereunto constrained by the law of God and man did recognize her Majesties right title and succession to the Crowne and did hereby promise that they would assist and defend her Majestie and her rights and titles in and to her imperiall estate crowne and dignitie in all things thereto belonging and at all times to the uttermost of their powers and therein to spend their bodies lands and goods against all persons whatsoever that in any thing should attempt the contrary By the like Act Anno primo Iacobi purporting a recognition Stat. 1. Iac. that the Crowne of England was lawfully descended to king Iames his progenie and posteritie his Highnesse subjects did therby acknowledge his Majesties lawfull descent to the imperiall Crowne of all his Realme â—and his goodnesse and ablenesse to protect and governe them in all peace and plentie and thereunto did humbly and faithfully submit and oblige themselves their heires and posterities for ever untill the last drop of their blood were spent In Magna Charta ca. 14. no man is to be amercied but according to the quantitie and qualitie of the offence A freeman saving to him his contenement that is his free hold-lands A merchant likewise saving to him his merchandise and a villaine or bondman saving to him his waynage or gainure as it is 3. Ed. 1. cap. 6. that is his land which hee held in villenage and the reason of this salvo was as is justly conceived that these things might be respectively enjoyed by the owners of them and thereby they might have where withall to sustaine themselves and their families and to pay their duties to their princes It is most infallibly true and no man can justly impugne it That the King hath power aswell of terrene honour that is a mans estate as of his life 1 By the law of God as a signe or Character of our subjection 2 By the law of nature as a testimonie of regardfull thankfullnesse for his vigilant and assiduous care paines and protection 3 By our owne provinciall lawes as the sinewes of the states preservation Thesaurus regis securitas plebis The Kings treasurie is the peoples securitie Money is the strength of a State But de mode reddendi the manner of rendring to our prince his dues 2 Branch
in the multitude of counsellors there is safetic Prov. 11.14 Every purpose is established by counsell and with good advice make warre Prov. 30.18 Moses had Iethro and Aaron Ioshua the sonne of Nun his successor Caleb and Eleazar the high priest for his privie counsellors David had his succession of counsellors Samuell the prophet Ionathan whose love to him was wonderfull Abiathar the priest and Nathan also a prophet with many others To return to our owne nation king Ine had his Cinredus whom hee calls his father Hedda and Erkenwald his bishops with many others Alfred had his Plegmund Archbishop of Canterbury Werefridus Bishop of Worcester and others Athelstane edicted his lawes Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum consilio by the counsell of his Archb. and other Bishops and so successively the kings of England ever had as before their privie counsell such and so many as the prince shall think good who doe consult daily or when neede is of the weighty matters of the Realme to give therein to their prince the best advice they can The prince doth participate to them all or so many of them as he shall thinke fit such legations and messages as come from forraigne princes such letters or occurrents as be sent to himselfe or his secretaries every Counsellor hath a particular oath of faith and secrecy administred to him before hee bee admitted a privie counsellor To shew the extraordinary regard and royall use of the kings counsell The regard â— the Privie counsell Let us looke backe upon the case of 5. Hen. 4. upon an agreement for an exchange had for the Castle of Barwick between the king and the Earl of Northumberland wherein the king promised to deliver the Earle lands and tenements to the value of that Castle by these words per avise assent des estates de son Realme son Parliament c. By the advice and assent of the estates of his Realm So as the Parliament be before the feast of S. Luke or otherwise by the assent of his great Counsell and other estates of his Realme whom the king shall assemble before the said Feast in case there be no parliament before c. as by the instrument thereof dated at Lichfield 27. Aug. 5. Hen. 4. remaining in the Tower may appeare To this counsell the Oracles of the Common law the grave and reverend Judges Leges loquentes Reipublicae God grant in all Successions they may be so have had their resort from time to time in all ages for advice and directions in their proceedings aswell in criminall causes as in matters of right and propertie as it was observed by the learned Lord Chancellor I will touch but two which are cited by that honourable Judge in cases of propertie Thomas Vghtred Knight brought a Forme-don against a poore man and his wife They came and yeelded to the demandant which seemed suspicious to the Court the matter being examined judgement was stayed because it was suspicious And Thorp said that in like case of Giles Blacket it was spoken of in Parliament And faith he wee were commanded that when any like case should come we should not goe to judgement without good advice wherefore sue to the councell and as they will have â—s to doe we will and otherwise not in this case 2. Greene and Thorpe were sent by the Judges to the Kings Councell where there were twentie foure Bishops and Earls to demand their advice touching the amendment of a writ upon the Statute of 14. Ed. 3. cap. 6. which was an Act made for amending of Records defective by misprision of Clerks By the advice and assent of this Councell is that great and common Councel solemnly called The forme of the writ of Summons to the Sheriffe followeth in these words Rex viz. S. c. Quia sie avisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos Statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud Civitatem nostram W. c. teneri ordinavimus Et ibidem cum praelatis Magnatibus et Proceribus dicti Regni nostri colloquium habere et tractare Tibi c. wherein these things are worthy observation 1 That this great Court is assembled by the power of the King expressed in his writ under his great Seale with Teste meipso 2 This power is extended with the advice and assent of his Right Honourable privie councell His grace favour and providence by calling a Parliament to parlee and treat with his Lords spirituall and temporall as also with his commons who by their Knights Citizens and Burgesses as their respective proxies elected by and with the popular suffrage of the Freemen of every Countie Citie Towne or Borough do make up the body of that great court and doe there meet to yeeld and consent unto such matters as shall be there treated and established 4 The subject of a treatie or parliament That is certaine difficult and urgent occasions concerning his Majestie his royall state and the defence of his kingdome and Church This high court consisteth of two honses The higher or upper where the King and his Barony or Nobilitie spirituall and temporal do take their place And the lower house where the Knights Citizens and Burgesses are assembled for the Commons consisting when M. Crompton wrote his jurisdiction of Courts of 439. persons The King had the only power to appoint it his gracious favour is to give life and beginning to it by his owne personall accesse in most Royall state And as sinis coronal opus hee crowneth and perfecteth all the Acts of this great assembly with his Royall assent without which no bill can passe nor law be made Though there bee no written Acts of parliament extant before the raigne of Henry the third yet some have sollicitously laboured to draw the Antiquitie of this thrice excellent court of Parliament from King Arthurs time to king Ine Offa Ethelred Alfred and others before the Conquer our with a successorie continuance untill this Present age and collected and inferred that the words used by K. Inas in the proem of his laws exhortatione c. Omnium Aldermannorum mcor'um seniorum sapientum Regni mei And the like words of Offa and other kings in the time of the heptarchie and that the words of Conventus sapientum used by King Edward the sonne of Alfred the words of Conventus omnium Nobilinm sapientum used by King Athelftane cum consilio sapientum used by king Edgar Haec instituerunt Rex sapientes mentioned of King Ethelred and the like of other Kings should include the Lords and Commons of the parliament whether this most eminent Court were in those ancient dayes assembled and exercized in that manner as now it is dubium est dubitare liceat doubtfullnesse is a fluctuation of the minde which in historicall matters of indifferencie that concerne
not our Christian faith and legeance to our Saviour nor our naturall or civill Legeance to our Soveraign cannot bee interdicted to the poorest thoughts Sure I am this Court is so ancient and of such transcendent honour and justice as Plow com.fo 399. observeth that none ought to imagine any dishonourable thought of it and why It must be so esteemed ratione persone regis by reason of the kings sacred person who is there present and president of that great Assembly as also the laws there made are established by the generall consent and are obligatorie both to king and people The parliament being called with the advice and consent of the privie Councell what is the end of their meeting Sir Thomas Smith in his Common wealth of England l. 2. c. 2. shall speake for me The Parliament the Kings Royall assent being had Power of a parliament abrogateth old lawes and maketh new giveth order for things past and things after to be followed changeth the right and possessions of private men legitimateth bastards establisheth formes of religion giveth forme of succession to the Crowne defineth of doubtfull rights whereof no law is already made appointeth subsidies tayles taxes and impositions giveth most free pardons and absolutions restoreth in blood and name with many such preheminences In this great assembly no reviling nor nipping words must be used And if any speake unreverently or sediciously against the Prince or the privie Councell they have not noly beene interrupted but justly sent unto the Tower by the authoâ—â—tie of the house those that be members of that bodie must come with a prepared heart to consult together to give counsell and advertisement what is good and necessarie for the common weale they must come with cheerefull resolutions to supply the prince his wants they must cast off all rancor spleene and private malignancie for locus facer est I will second it with the words of a great Judge Co. Inftit fo 110. a. The jurisdiction of this Court maketh inlargeth diminisheth abrogateth repealeth and reviveth laws Statutes Acts and Ordinances concerning matters Ecclesiasticall Capitall Criminall Common Civill Martiall Maritine and the rest What cannot a parliament doe as a great peere once told Queene Elizabeth Royall assent being had was it not then a hainous and inexcusable crime for any man intrusted with the lawes publikely to declare that the late imposition of Ship-money was a prerogative so inherent in the Crowne as that it could not be taken away by Act of parliament It is most repugnant not only to the workes and writings of the ancient heroes of the law Bracton Fritton Fortescue and others but also to the opinions of grave and learned moderne Writers and dead and living Judges But that opinion and all the proccedings upon the Shipwrits are in this present parliament condemned and disanulled 17. Car. cap. 14. and the petition of right in every particular confirmed To adde something more Bellarmine after many sharpe writings and vehement disceptations in defence of merits and workes of supererogation his age hastening his end now bethinks himselfe falls wholly from disputes of merits to pious meditations and therein presents unto the world Tutissimum est iter ad calum per merita Christi The safest way to heaven is by the merits of Christ An honourable peere as great in the policie of our English state as ever the other was in the Romish Church was formerly a great Zelote for the liberties and wellfare of the common people and an earnest prosecutor of the petition of right Afterwards in the highest of his eminent advancements relapsing and disaffecting the course of parliaments whose examination and try all his actions could not well endure mole tandem ruit sua is at length hurried downe with the weight of his owne greatnesse And not long before his death ingenuously confessed That the Parliaments of England were the happiest constitution that any kingdome did ever live under and under God the best meanes to make King and people happie And sowith his dying words omitting the numerous priviledges of that high Court I conclude this part THE KINGS Royall office OF PROTECTION I Shall proceed to the last of my Generalls that is The Royall office of the King for the protection of his people I have touched before his personall and politike capacity and the naturall Legeance and Subjection of the people to him and principally in the right of payment their dues and duties and the great question de modo reddendi As Legeance is due from the Subject to the King before the Oath be taken and the Oath is but a visible demonstration of it So there is a Protection due from the king to the people before the oath administred to him at his Coronation and that oath is but a politicall expression of what by the law of God and nature and the lawes of our nation appertaines to his Kingly office It is observed upon the sift Commandement Vbi sanciuntnr officia inferiorum erga superiores And. Rivet in 5. Praec Decal ibidem etiam superiorum ergainferiores sanciri where subjection is jojoyned there protection is implyed As the Subjects must bee true and faithfull to the King of life member and terrene honour So the King must be as true to them in the protecting of all these and their libertie and proprietiein all these viz. the libertie of their lives of their religion of their persons and the propertie and right of their lively hood and estates in their lands and goods all which may be comprehended under this one word libertie dulce nomen and res dulcis Bâ—t what is libertie What liberty is It is a freedome or free and quiet enjoying of a man his spiritual and temporall estate his bona animi or animae and his bona fortunae from rapine expilation and all unjust incroachments restrains confinements imprisonments and oppressions whatsoever and that part of our Law which concernes the Subjects libertie is commonly called in the Law bookes Lex terrae Liberty is the only preserveresse of a Christian Common wealth in incolumitie and stabilitie And as one saith Rebus omnibus humanis Anteponenda pro illiusque incolumitate integritate totis viribus opibus dimicandum It is to bee preferred before all humane affaires and the safery and entirement of it to be propâ—gned and defended with all manner of strength and power But liberty must have its modum mensuram It must be with an It a tamen cum justitia dignitate praesidio reliquis reipulblâ—cae ornamentis sit conjuncta It is and must be joyned with lustice Honour ayd and the rest of the Ornaments of a Common-wealth That is true liberty which is joyned or affianced with uptight reason And he is a true Free-man which hath such reason for his guide in all his actions Reason is radius divini luminis the lustre of a divine illumination It is the stampe of Gods Image
Anno 1556. appeares have set forth the forme of the KINGSO ath at His Goronation Out of which I have selected these branches concerning the regall Office of Protection 1. That hee shall keepe and maintaine the right and the liberties of the holy Church of old time granted by the righteous Christian Kings of England 2. That he shall keepe the peace of the holy Church and of the Clergie and of the People with good accord 3. That hee shall doe in all his judgements equity and right Iustice with discretion and mercy 4. That he shall grant to hold the Lawes and Customes of the Realme and to his power keep them and affirme them which the folke and people have made and chosen and the evill Law â—s and Customes wholly to put out 5. And stedfast and stable peace to the people of this Realme keepe and cause to bee kept to his power 6. And that hee shall grant no Charter but where hee may doe it with his Oath All these severall branches are but the specifications of that one word Protection What Protection is But it will bee demanded what is protection It is not onely a safe-gard and defence of life and member liberty lands and estate of the Subject but a conservation and maintenance as well of the Religion as of the Lawes established within his Majesties Realmes And that this blessing of protection may the better flourish over us The incessant prayers of our Church do daily intercede for Our Gracious Soveraigne unto Almighty God so to dispose and governe his heart that in all his thoughts words and workes he may ever seeke the honour and glory of God and study to preserve his people committed to his charge in wealth peace and godlinesse This protection is generall from the King to all and over all his people and somtimes more specially to some particular persons in some speciall cases of transmarine businesses or other services by way of writ There are a twofold meanes by which this benefit of safety is diffused and distributed from the Prince to the people 1. By Lawes 2. By Armes Whereupon learned Glanvill Chiefe Iustice in the dayes of Henry 2. in his prologue to his Treatise of the Common Lawes of England thus begines Regiam potestatem non solum armis contra rebelles gentes sibi regnoque insurgentes esse decoratam sed legibus ad subditos populos pacificè regendos decet esse ornatam It doth well become Majesty not only to be well appointed with Armes against Rebels and Invaders of Him and his Kingdome But to bee furnished with Lawes peaceably to order his Subjects and people And Bracton Chiefe Iustice in the time of Henry the third affirmes thus In Rege qui recte regit necessaria sunt duo haec Arma viz. Leges qu bus utrumque tempus bellorum pacis recte possit gubernari He addes further Si arma defecerint contra hostes rebelles indomitos regnum erit indefensum Si autem Leges exterminabitur Iustitia necerit qui justum faciat judic um If Armes or Military supply against enemies be sâ—aâ—ted the kingdome will bee naked and indefensive and if Lawes be wanting Iustice will bee exiled and there will bee none to give just judgment Lawes and Armes are the proppes or pillers of Protection Lawes are of a most excellent preeminence above Armes If the Law had not bin broken there had bin no use of Armes I will therefore first begin with Lawes There was a Law insita naturae Laweâ—â— written in the heart of man in and with mans Creation after Gods owne Image By some it is called the Law of Nations and ought to be observed as well amongst Iewes and Gentiles as amongst Christians And in our Common Law it is called Lexrationis Dr. stud â— â— cap. 2. which by a naturall prompting doth informe us that all good things are to be pursued and all evill to be eschewed This Law of Nature through tract of time and Customes in sin was slurred defaced and in a great part worne out Necessarium igitur fuit quod daretur Liber extrinsecus continens leges praecepta per traditionem Dei c. And thereupon the Law was given by God upon Mount Sinay to Moses as is herein formerly handled which is the positive Law in the Scriptures The Prophets afterwards by often denouncing of woes and judgements against the breakers of the Law did quicken and give life unto it in the people The summe of all this Law and the duty of it our blessed Saviour did in one Evangelicall precept render unto all posterity In all things whatsoever yee would that men should doe to you Matth. 7 8.1â— doe yee even so to them for this is the Law and the Prophets From the Law of Nature or Reason and from the divine Law imposed in the Scriptures all the principall and fundamentall Lawes of our Kingdome are subderived and thence by secundary and mediate grounds have their essence and consistence As the Law of Nature was at first not written in any judiciall book So you have heard before that the Lawes of England were at first leges non scriptae and the subjects liberties only known and distinguished by Custome and usage These not written Lawes for the most part of the first two centuries after the Conquest were much obscured and even subverted partly by the then over-ruling arbitrary sway of Soveraignty sometimes by Papall usurpations oftimes by the over-weening power and tyrannicall pressures of the Peeres and Great Counsellors of state over the poore disheartned Commons who for recovery of their wounded and defaced Lawes and liberties were ofâ— inforced into many outragious rebellions and bloudy insurrections in so much as the Government of the Kingdome for a long time greevously languished of an Antonotnical feaver Begin we with the beginning of the Subjects seeming recovery of their old Lawes and liberties King Iohn before mentioned having bin long imbroyled by the Civill Warres of the Barons inflamed by the Pope who to advance his supremacy here soothed up the King in thundring out excommunications against the Barons about the seventeenth yeare of his Raigne being affrighted with the noy sed strength of his Nobles Army King Iohn descended to a meeting and parlee with them at a place called Roundesmead betweene Stanes and Windsor And upon a pacification of his Nobles and for quieting of his kingdome He there by his Charter 16. Iunij Anno regni 17. called Magna Charta did grant unto his Peeres and Commons their long claymed liberties and not many moneths after dyed Henry third a Child of nine yeares age Anno 1216. Henry 3. ascendeth the Throne as heire to the incumbrances of the kingdome as well as to the Crowne The Commons greedy of liberty and the Nobility of rule and the humorous spirits of young insinuating favourites opposing and discountenancing the wisdome of the gravest Counsellors kept the
King in an unsteady and unsetled course of Government In the ninth yeare of his Raigne Anno 1224 He granted to the Nobility and Commons such Lawes and liberties as had bin used long time before And caused Charters to be made one called Magna Charta the other Charta forestae which he sent into every County The praeamble of Magna Charta doth set forth The two Charters granted 9. Henry 3. That to the honour of Almighty God the advancement of holy Church and the amendment of the Realme The King of his meere and free-will did give and grant to all Arch-Bishops Bishops c. Earles Barons and to all of his Realme the liberties following to bee kept within his Kingdome of England for ever which grant containeth in all 37. Chapters In the twenty ninth the greatest liberty of the Subject was granted Nullus liber h◠me c. viz. No Free-man shall be taken or imprisoned or be disseised of his freehold or liberties or free customes or be out-lawed or exiled or any otherwise destroyed Nor wee will not passe upon him nor condemne him but by the Law of the Land wee will sell to no man we will not deny nor deferre Iustice or right Here every word is a sentence grande in grano a weighty matter as I may terme it in the continent of a graine Herein is contained that eximium quoddam our Nationall liberty before cited And an epitome of so much of lex terra in the generality as concernes the Kingly office of Protection Grant of a Fifteenth In the 37. and last ch The Clergie Earles Barons Knights Free holders and others his Subjects did give unto the King in respect of both those Charters the fifteenth of all their moveables And the King did grant unto them on the other part that neither he nor his heires should procure or do any thing whereby the liberties of that Charter should be infringed or broken This grant of Magna Charta though it carries the forme of a meere Charter ex mero motu spontane a voluntate as it was the use at that time and long time after yet is it a Paliamentary grant and Statute and is called the great Charter though little in it selfe in respect of the weighty matter comprised in it in few words It is the fountaine of all the fundament all lawes of the Realme and the only basis and ground cell which supports the superstructure of all the Lawes and liberties of the Subjects And it is but a confirmation or restitution of those not written Lawes before mentioned Would any man thinke it possible that this Magna Charta could ever bee violated by the same hand that made it The King was young milde and gracious but easie of Nature a sin not in it selfe but by accident He was happy in his Vnkle the Earle of Pembroke the guide of his infancy but unhappy in Hubert de Burgo his Iusticiary and others Those liberties redeemed with the price of a fifteenth the Subjects had not long injoyed and little fruit of future freedome more than for the present like a glimmering sunne-shine in an unconstant calme had this common people by this grant Eft-soones the Clouds returne malum in malum ingruit The young King having newly attained the Age of twentie one yeares by the evill Counsell of his Chiefe Iustice Hubert at a meeting at OXFORD in the twelfth yeare of his Raigne did by open Proclamation frustrate and cancell his former Charters made in the ninth yeare of His Raigne under pretence that hee was under the power or ward of others So it followed that whosoever would injoy the liberties before granted must purchase their Charters under the Kings new Seale at such a price as the Iusticiar should award This was greevously taken by the Lords and COMMONS in so much as the same yeare the BARONS supplicated the King to restore the Charters which hee cancelled at Oxford or else they would recover them by the sword It was most disloyall in them to be assertores libertatum and to enter into competition with the King with Comminations of the sword Bracton who wrote long before left better Counsell behind him in such things as concerne the Act of the King Si ab eo petatur cum breve non currat contraipsum if any thing be requirable from him sithence he is lyable to no action Locus erit supplicationi quod factum suum corrigat emendet He is to be supplicated that he would reforme and amend his doing which if hee doe not Satis ei sufficit ad paenam quod Deum expectet ultorem It is punishment enough to him to expect the Lords revenge Observe what followed in this Kings time whilst he gave over the raines of his rule to young unseasoned giddy braines some of them alyens and strangers the gravest Counsellors being discountenanced the Barons falling into factious ruptures and the repining Commons into discontented rebellions The whole Monarchy languished all things were disordered and out of frame Almighty God looking downe from Heaven upon the vacillation and incertitude of this Vicegerencie under him upon earth exerciseth his owne supremacy addresseth one of his greatest Messengers of indignation famine which raged with that violence Claus An. 42. Henry 3. That the King was inforced to direct writs to all the Sheriffes of Shires ad pauperes mortuos sepeliendos famis inedja deficientes And it is observed fames praecessit sequutus est gladius tam terribilis ut nemo inermis securè possit provincias pervagare The Civill brandishments of the sword followed every where the fury of the Famine In this Nationall distresse silent leges Nay vix legibus tempus aut locus Scarce was there time or place left for clayme of liberties or execution of laws Sure it is the King and Commons had but little ease whilst his absolute power was participated not deligated to his great ones To recount the various troubles and turmoyles of his long and unsetled raigne were the work of a sad and sorry Hystory Afterwards it pleased God who hath ever a particular and tender care of Princesper quem reges regnant Principes dominantur towards the latter end of his Raigne to restore the King to his right and his tyred Subjects to their naturall obedience Hee had the happinesse to call a successefull Parliament at Marleborough 18. of Novem. 52. of his Raigne 1267. and therin amongst many notable Lawes enacted He solemnly confirmed the former Charters in all their Articles and strictly injoyned the observation of them to be inquired before the Iustices of Eire in their Circuits and before the Sheriffes in their Counties when need should be The King seeing his former errors now began to ballance his Government with Praemio paena reward and reprehension and himselfe with an equall hand to hold the scale He laboureth to reforme all that was amisse The seats of judgment and Counsell he supplyed
was presented by the Peeres and Commons unto his Majestie in their petition of right concerning diverse rights and liberties of the Subjects before mentioned which had bin intrenched upon touching their lives persons and estates Whereupon his Majesty did fully freely and graciously confirme in all points their said petition of â—gnt with Soit Droit fait come est desire And I daâ—e boldly say His Royall goodnesse hath beene of himselfe most vigilantly carefull and tender to observe it It is said before that the Law is the Guardian of liberty The Law must bee under wardship too Who be the Law Wardens who then be the Law-Wardens The King originally is intrusted under God with the custody of the Lawes under him the learned and Reverend Iudges are interessed in the Curator-ship of the Lawes and in them of the lives liberties and estates of the whole kingdome And at their first investiture into their places they take a solemne oath incident to their great offices By that oath they ingage themselves as fe-offees in trust to Minister true right betweene King and people and to execute Iustice to the people according to the Lawes of the Land and thereby and by receiving the weighty trust from and under him for the custody of that inestimable Iewell the Lawes they are to acquit the King of so much of his oath I cannot here forget some old verses Realmes have rules and Rulers have a syse Which if they keep not doubtlesse say I dare That eithers greefes the other shall agrise Till the one be lost the other brought to care I will not Comment upon them they were written upon a Subject of 240. yeares a gone and a bad sample thereof hath hâ—pned in our times Lawes are the syse of rule and government By which the opinions and judgements of our twelve Iustitiars must bee weighed and guided they are the Subjects birth-right and inheritance They are the golden ring by which the King at his Coronation is politically espowsed to the Common-Weale and have bin enameld with the bloud of many Millions and Myriads of soules Woe be therefore unto them that have been are or shall be the violaters and betrayers of that sacred trust What must they be that will render themselves guilty of so haynous a crime Surely none of Iethro his Counsellors Not men of courage nor fearing God nor loving Truth nor hating Covetousnesse They must be in their conditions Tyrants haters of Law for having once broken the lore of Law they feare to be tryed by the plumb-line of the Law And then followes Quod timent oderunt quod oderunt destrui irritum omniò esse volunt what they feare they hate and what they hate they would utterly destroy Oderunt impij omnia Disciplina vincula legem â—yrannum esse judicant Moller in Psa 139. The wicked hate all bonds of Discipline and condemne the Law to be a Tyrant But their guerdon is Qui peccant contra legem lege plectentur Offenders or Subverters of the Law shall have their demerited punishment by the Law It is said of sacrilegious Church-robbers Frustra petunt auxi lium Ecclesiae c. They are excluded all benefit of Clergie that sinne against the Church The Law is the Temple or Sanctuary whether the Subject is to runne for shelter and refuge M. Saint Iohâ—s speech fol. 4â— If the Wardens of this Temple desert their Office and abjure the Sanctuary Let them expect nor fuge thither nor other but the Law to bee testem jud cem Satellitem their witnesse their Iudge their executioner And their I leave them So much for Law THe other prop or Piller of Protection is Armes Armes whereof I have sufficiently spoken before for so much as concerne the Subjects duty and legeance And for that which concernes his Majesty It is so generally knowne That I shall need to give but a touch By the Common-Law of the Kingdome No man was chargeable to arme himselfe otherwise than hee was wont in the time of the Kings progenitors S. Edw. 1. And no man was compellable to go out of the Shire but where necessity required and sudden comming of strange enemies into the Realme And then it should be done as had been used in times past for defence of the Realme Likewise the preparing men of Armes and conveying them unto the King into forreigne parts was meerely to bee at the Kings charge And howsoever in the time of Edw. 1. certaine Commissioners did incroach upon the Commons and compelled the shires to pay wages to the Preparers Conveyers and Souldiers whereby the Commons had bin at great charge and much impoverished The King did will that it should be so done no more Stat. 1. Edw. 3. cap. 5.7.1327 And 18. Edw. 3. Cap 7. It is provided That men of Armes Halberts and Archers chosen to goe in the Kings Service out of England shall be at the Kings wages from the day that they depart out of the County where they were chosen till they returne Those Statutes are but affirmations or the Common Law and are utterly destructive to the late impositions of Coate and Conduct money and such like levies in that kinde as are not warranted by common assent in Parliament By both these S. Lawes and Armes the peace and unitie of those two deare sisters the Church and Common weale are strengthened and upheld And in both these the Prince hath power of direction to make and establish lawes to raise and levie Wars and power to command the execution and expedition of them Neither of these are acted without Counsell frustra leges frustra sunt arma nisi sit consilium And it is a true rule Sanissimum consilium non fine concilio the best Counsell is from a Councel or Assembly of Counsellors And therefore the King as you heard before is attended with his Privie Councell which is a body politike unum è pluribus const tutum and no body without a head for as Forrescue fol. 30. saith Quandocunque ex pluribus coâ—st tuitur unum inter illa unum erit regens alia erunt recta This body politike whereof the King is head the autiquity and use wheâ—of I have sufficiently before remonstrated is at ended with two great Nuncioes Angelis è Caelo Iustice and Mercy They are ornamenta coronae The prâ—tious Diadems of the Kings Crowne they are columnae Majestatis the two maine supperâ—ers of regall dâ—gnity By the one S. His Iustice he hath potestatem praeveniendi and subveniendi a power by making of Lawes sending forth his Edicts and Proclamations of preventing all capitall and criminall offences all homicides rapines oppressions injuries rebellions mutinies and all greevances whatsoever either of force or frand and either against the person or estare of His Majesties Subjects And if prevention be not availeable â—â—in naturall so in Civill diseases it sometimes failes Then must his power of subveniendi be administred and that by 〈…〉 execution