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
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
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
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
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
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
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
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